The City of Toronto (City) is once again preparing to pass a comprehensive city-wide zoning by-law to replace the existing framework of 43 separate zoning by-laws applicable to the former municipalities and various areas in Scarborough.
In 2010, the City passed By-law No. 1156-2010 (ZBL 1156-2010). However, following hundreds of appeals of the ZBL 1156-2010 to the Ontario Municipal Board and general criticism and confusion regarding its implementation, it was repealed in 2011.
A draft of a new zoning by-law (New ZBL) will be considered by the Planning and Growth Management Committee at its next meeting on October 12, 2012, during which City staff will report on comments received to date on the New ZBL and, based on those comments, will release a revised draft of the New ZBL in early November 2012. According to the City’s timetable, the New ZBL will be enacted in February 2013.
Some of the issues that were central to the discussion at the time of the enactment and subsequent repeal of the ZBL 1156-2010, and the ways in which the New ZBL, as currently drafted, is similar or different to the City’s previous by-law are presented below, namely transition, minor variances, site-specific exceptions, the definition of gross floor area and the prohibition on paid visitor parking.
A source of much of the criticism and confusion surrounding the ZBL 1156-2010 was the lack of effective transition policies, which created uncertainty for owners of properties that were in the development "pipeline." In an effort to reduce the potential for appeals of the New ZBL, City staff developed both a transition protocol (Transition Protocol) and transition clauses (Transition Clauses) to deal with pipeline properties. It remains to be seen whether the Transition Protocol and Transition Clauses will in fact eliminate the need for many appeals of the New ZBL. However, these transition rules do demonstrate the willingness of the City staff to entertain a more pragmatic approach to transitioning to a new City-wide zoning by-law.
- Transition Protocol
Properties that are subject to the Transition Protocol will be placed in a "hole" in the New ZBL. As such, they will be "Not Part of This By-law", and the current zoning will continue to apply.
The following are the categories of properties that are subject to the Transition Protocol:
- properties where the current zoning does not conform with the Official Plan;
- properties in areas currently being studied for Secondary Plans and area-based Official Plan Amendments (such as the Waterfront, Downsview Park and York University campus);
- properties governed by area-based zoning by-laws (such as Etobicoke Centre, North York Centre, Fort York Neighbourhood and East Bayfront);
- properties with active or approved Site Plan Approval Applications where building permits have not yet been issued; and
- properties with active or approved Zoning By-law Amendment Applications where building permits have not yet been issued or where build-out of the site will occur in phases.
We are seeking clarification from City staff as to whether single-phase developments that are under construction at the time the New ZBL is enacted pursuant to a site-specific Zoning By-law Amendment will be included in the New ZBL, with the site-specific permissions recognized in Chapter 900 (Site Specific Exceptions) of the New ZBL, or whether such developments will be recognized as "holes" in accordance with the Transition Protocol.
- Transition Clauses
Even where properties are included within the New ZBL, there are proposed Transition Clauses in Chapter 2 stipulating that, for a period of time, certain properties with active applications before the City will remain subject to the currently applicable zoning.
The Transition Clauses apply to active applications for a zoning certificate, building permit, minor variance, site plan approval, consent to sever, draft plan of subdivision, draft plan of condominium, payment in lieu of parking agreement and part lot control exemption. If any of these complete applications are submitted prior to the enactment of the New ZBL, they will remain subject to the currently applicable zoning and will be processed in accordance with that regime. According to City staff, "the Transition Clause ensures that a dual review of existing applications for compliance under the new and former zoning by-laws will not be required." This problem of the "dual review" was a major source of criticism and confusion under the BL.
The Transition Clause, as currently drafted, is time-limited. It is proposed to be in effect for three years after the enactment of the New ZBL. In order to benefit from the Transition Clause, therefore, an application must be (a) submitted prior to the enactment of the New ZBL; (b) complete and (c) approved/finally processed within the three-year grace period following the enactment of the New ZBL.
A further source of criticism and confusion of the ZBL 1156-2010 was with respect to the treatment of minor variances. At the outset, drafts of the ZBL 1156-2010 did not include language that recognized previously approved minor variances. In effect, this meant that any building built pursuant to a minor variance to the former municipalities’ by-laws would be faced with legal non-confirming status, rather than legal status. City staff took the position that it was not within the zoning powers of the City to recognize previously approved minor variances in a new zoning by-law. The version of ZBL 1156-2010 adopted by City Council did contain some language to provide for recognition of variances, but this language was not clearly effective and the issue was rendered moot by the repeal of the ZBL 1156-2010.
The New ZBL contains a Minor Variance Clause, which states that a minor variance approved under the currently applicable zoning by-laws "may be relied upon" if the regulation for which the variance was granted (for example, height, setbacks, or coverage) is the same or more permissive under the New ZBL. If the regulation is more restrictive under the New ZBL, then further relief would be required. However, the requirement to obtain further relief would not apply where a property falls within the Transition Clause and building permits are obtained within the three-year grace period following the enactment of the New ZBL.
The New ZBL includes, in Chapter 900, a list of site-specific exceptions applicable to certain properties. Chapter 900 is intended to include, for example, previously approved site-specific Zoning By-law Amendments. The New ZBL provides that such site-specific zoning standards "govern over any inconsistent regulations" in the balance of the New ZBL and that the "provisions and definitions" of the currently applicable zoning by-laws "continue to apply only to the extent necessary to interpret and support" the site-specific provisions. Although this language requires some scrutiny, it appears the intent is to allow existing site-specific zoning provisions to prevail over general provisions in the rest of the New ZBL. However, it also appears that new regulations and standards that may not have been addressed in the earlier site-specific zoning (e.g., requirements for bike parking or amenity space on properties outside of the former City) would apply following the enactment of the New ZBL.
Definition of Gross Floor Area
In addition to the procedural and transitional problems that arose from the ZBL 1156-2010, there were certain substantive issues that received significant attention. One such issue was the definition of "gross floor area." City staff chose to include an expansive definition of gross floor area that did not "carve out" exemptions namely for mechanical and utility spaces, as provided in the former City Zoning By-law. "Carve outs" were permitted only for certain defined purposes, such as the calculation of loading and parking requirements, but not for the purpose of determining the allowable density on a property.
The approach to the definition of "gross floor area" has been modified in the New ZBL. While the definition itself, which is found in Chapter 800, remains expansive, it is narrowed for specified zones by permitting "carve outs." For example, in a Commercial Residential (CR) Zone, the gross floor area for a mixed-use building may be reduced by the area used for:
- below-grade parking, loading, and bicycle parking;
- loading and bicycle parking at grade;
- storage rooms, washrooms, electrical, utility, mechanical and ventilation rooms in the basement;
- shower facilities required by the by-law for bicycle parking;
- amenity spaces required by the by-law;
- elevator shafts;
- garbage and recycling shafts;
- mechanical penthouses; and
- exit stairwells.
No Paid Parking for Residential Visitors in all Zones
The New ZBL contains the same provision found in the ZBL 1156-2010 (imported from the former City of North York Zoning By-law No. 7625), which prohibits charging a fee for visitor parking spaces for a residential building on properties in a Residential or Residential Apartment Zone category. However, as currently drafted, the New ZBL extends this prohibition to Commercial Residential and Commercial Residential Employment Zone categories as well. We are seeking clarification from City staff as to whether it is intended that a "residential building" include a mixed-use building.
What This Means for you
We will continue to monitor the progress of the New ZBL and will be reviewing in detail the revised draft proposed to be released in November 2012. We will provide updates from time to time in the period leading up to the enactment of the New ZBL in 2013. However, such updates will necessarily be general and should not be taken as a substitute for property-specific analysis of the effect of the New ZBL.
In your own review of the New ZBL, it is important at this stage to ensure that your projects in the development pipeline are properly treated under the Transition Protocol. Other properties should be examined to ensure that site-specific future development properties that are not excluded from the New ZBL in a "hole," site-specific permissions and Zoning By-law Amendments previously approved for such properties are accurately referenced in the New ZBL and reflected on the relevant mapping.
For properties in your portfolio that are not the subject of active development applications, you will want to ensure that the New ZBL does not remove or negatively impact any rights or permissions that the property currently enjoys.
Under the Planning Act, your right to appeal the New ZBL, once enacted by the City, depends on prior participation in the process leading up to the enactment of the New ZBL.