The enabling legislation for a Development Permit System ("DPS") has been in the Planning Act since 1996 but its implementation required a Regulation made by the Lieutenant Governor in Council. In 2001, an Ontario Regulation (O. Reg.) provided for five pilot areas to examine the potential for a DPS. Subsequently O. Reg. 608/06 came into effect on January 1, 2007 and permitted all local municipal councils in Ontario to establish a DPS. Since then, four municipalities have adopted Development Permit Bylaws (a DPB"): Lake of Bays, Carleton Place, Gananoque and Brampton.
O. Reg. 608/06 is specific about what must be included in a municipality's Official Plan to implement a DPS. The Official Plan must identify the area or areas of the City that could be subject to a DPB. It must set the extent or limitations of any delegation of authority for the approval of Development Permits (a "DP"). It must describe the City's goals, objectives and policies in proposing a DPS. The Official Plan must also set out the types of criteria that may be included in a DPB for the purposes of evaluating proposed development, and it must include the types of conditions that may be imposed in connection with the issuance of a DP.
The Official Plan may include additional policies with respect to the type of information and materials that will be required for the submission of a complete DP application. The Official Plan may also include policies requiring the provision of specific facilities in exchange for increases in height or density within the ranges set out in the DPB.
What is the current state?
At its meeting held on July 8, 9, 10 and 11, 2014, City Council adopted Amendment No. 258 to the Official Plan for the City of Toronto being a comprehensive set of policies for the implementation of a DPS in accordance with O.Reg. 608/06. At the termination of the appeal period on August 13, 2014, multiple appeals to the Amendment had been lodged. The first pre-hearing conference of the Ontario Municipal Board in this matter is expected to be held later this Fall. The common thread of the appeals are the lack of transition provisions and the overall rigidity of the policies including the exclusion of the powers of the Committee of Adjustment in the process going forward.
Final and binding approval of Amendment No. 258 will not immediately put into effect the DPS. The policies must first be in place for City Council to then consider enacting an area-based DPB.
In terms of specific target areas for a DPB, at its July 8-11 meeting, Council directed planning staff to undertake the following:
To consult with residents:
* In Bloor West Village to assess interest in moving forward with a study to prepare a development permit by-law for the area between Keele Street and the Humber River fronting Bloor Street West;
* In Cedarvale and Forest Hill to assess interest in moving forward with a study to prepare a development permit by-law for Eglinton Avenue West between Marlee and Spadina Avenue; and
* In the Weston and Mount Dennis areas to assess interest in moving forward with a study to prepare a Development Permit System by-law; and,
* In the Yonge and Eglinton Urban Growth Centre, that City Council request that residents, including all local residents' associations, be consulted by the City Councillors for Wards 22, 25 and 16 and the appropriate City Planning staff, prior to Community Council consideration of a Development Permit System By-law Area for this Centre.
A copy of Official Plan Amendment No. 258 is provided here.
What is a Development Permit System?
A DPS is a land use regulatory tool that is an alternative to zoning for the purposes of implementing the Official Plan. The DPS can be understood as a cross between a secondary plan and the zoning by-law. It applies on an area basis, typically at the scale an individual neighbourhood. A comprehensive plan for the future development of the neighbourhood area is prepared based on background planning studies and community input. The vision for the area is distilled into a thorough list of development criteria in the DPB. The appropriateness of a development proposal would be determined based on development criteria in the DPB. To ensure sure the intent of the development criteria are met, the DP may attach conditions to the approval of plans. A DP must be obtained before a building permit may be issued.
The DPS combines zoning, site plan and minor variance processes, as well as potential agreement for Section 37 community benefits. A DPB will include a list of permitted uses and development standards similar to zoning by-laws. However, in addition to complying with permitted uses and any minimum or maximum standards, DP's may be issued only if the proposed development meets specified evaluation criteria and conditions of approval contained in the DPB. The development standards, evaluation criteria and conditions of approval included in the DPB will typically apply to the entire area subject to the DPB or to an identified sub-area in order to account for differences in context, character and permitted uses within the DPB area.
The applicant will be required to submit a set of plans and any background information and studies that may be required to form a complete application for a DP. The plans would be assessed based on their compliance with the development criteria and standards found in the DPB. A DPB can include a range of variations to the development standards. For example, there may be a range of possible variations for typical development standards such as setbacks, density and height, but the approval of plans within the range would be subject to meeting specific development criteria. This will ensure that the impacts of a proposed development on adjacent properties will be considered in the final design. For example, an increase in the height of a building may be permitted subject to ensuring there is no shadow impact on abutting properties. If there were shadow impacts, then design alternatives would be required before a DP could be issued.
In recognition of the range of variations possible under the DPS, the Committee of Adjustment powers to approve minor variances would not be applicable in an area governed by a DPB, although the Committee would continue to consider requests for land severances within the area governed by the DPB.
The DP would become "applicable law" and must be obtained before a building permit may be issued. The DPS also provides for conditions for approval that allow many features of development to be secured. A DP can specify attributes that contribute to the character of an area, such as exterior design of buildings, including finer architectural points, texture and window details. Design features of sustainable, energy and resource efficient buildings that are durable, barrier free and high quality can be acquired. Conditions of approval can protect heritage elements. In addition, ongoing monitoring requirements to safeguard public health and safety or the natural environment can be a condition of approval for a DP.
Why the need for a Development Permit System?
The general view of the City's Planning Department is that the fundamental flaw with the site specific rezoning process is that the cumulative impact of redevelopment is difficult to address. The timing and locations of rezoning applications is such that the City is forced most often to have to react to development interest rather than proactively plan for it and equally, it is also difficult to plan for infrastructure improvements on a case by case basis.
In addition, despite any benefits that may accrue through the site specific rezoning process, the applicant may appeal to the Ontario Municipal Board. While area-based plans provide the context for proper longer term planning, they often lack effective means of comprehensive implementation and typically proceed piece-meal, through the traditional rezoning process. The DPS and corresponding DPB are meant to cure this perceived deficiency.
The quality and effectiveness of public input is another consideration. The public are invited to comment on individual rezoning applications one at a time. Commenting on a single project is often difficult if the context for development in the area is not able to be presented. Attending meetings for each development application is time consuming and may lead to the public's fatigue and disinterest or anger and frustration with the development process. In contrast, the DPS offers an effective and efficient area-based means of development approval in the City as an alternative approach to the site specific rezoning process. The DPS incorporates all the benefits of a site specific rezoning process without the need for an amendment process and possible subsequent appeal to the Ontario Municipal Board.
As an alternative to the traditional process of rezoning, there is clearly some appeal to the proposed DPS. Once an area-specific DPB is final and binding, it will certainly provide far greater predictability of outcome and a shorter timeline to final building permit. But the devil is in the detail. It is the complexity of the front-end process that will prove daunting. The challenge of getting the fine grained development details, at a neighbourhood scale, enshrined in a final and binding DPB to then allow ease of building permit.
The front end work could take years. And we know change is constant. How quickly will a DPB be perceived as outdated, and affected landowners begin seeking amendments and change to the DPB? And what affect will this amendment process have on other owners seeking DP's in accordance with a DPB that is under review? There will be many procedural unknowns going forward that will have to be worked out through trial and error. The growing pains associated with Toronto's first testing of a DPS will undoubtedly be large.
As the City has conceded, creating the initial DPB's will be challenging because of the lack of familiarity with drafting such by-laws and the need to establish internal review procedures. The initial target areas for DPB's are considered to be areas where growth is expected to be accommodated but where the interface and compatibility with surrounding uses and built form is particularly important. The City has a strategy in place to ensure its planning staff are fully resourced, including outside counsel and expert witnesses, as necessary to defend the ensuing DPB's at the Ontario Municipal Board. DPB's will follow the same statutory procedures as a zoning bylaw process in terms of notice, public review and statutory right of appeal.
In addition to staff resources, the creation of DPB's will follow City Planning's approach to the Avenue Studies Work Program. Consultants will be retained to help deliver studies for the area with funding allocations being included in City Planning's annual budget. Funding for these studies will include resources to defend Council's adoption of the given DPB's, including retaining the study consultants to provide expert witness testimony as necessary.
Gowlings will continue to monitor Toronto's emerging DPS and the related DPB process. We will endeavour to provide timely reporting on the issues as this alternative development process continues to mature.
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