In the September edition of the Real Estate & Urban Development @ Gowlings newsletter we reported at a high level on the new City of Toronto Zoning Bylaw 1156-2010 (the "Bylaw") and the myriad of changes that have been introduced under the guise of "harmonization". The Bylaw, which was approved by Council on August 27, 2010, has since been appealed to the Ontario Municipal Board by over 600 parties, with initial pre-hearing conferences not being scheduled before June, 2011.

It was clear at the time, and even more so now, that many of the changed provisions are not borne out of any related provision in a predecessor Bylaw. A case in point is the new definition of "Gross Floor Area" as it will apply to all non-residential properties across the amalgamated City. The new definition reads as follows:

"means the total area of each floor level of a building, above and below grade, measured from the exterior of the main wall of each floor level, including voids at the level of each floor, such as an atrium, mezzanine, stairwell escalator, elevator, ventilation duct or utility shaft, but excluding areas used for the purposes of parking and loading"

It is clear that gross floor area now includes all void space. This is a departure from the definitions of gross floor area contained in the former bylaws of the amalgamated City which in one form or another, permitted the exclusion of void space from the floor area calculation. The new definition effectively amounts to a down zoning, as total "bulk" of the building will now include previously exempted space.

It is worthy of mention that the gross floor area formula is used to determine other related aspects of a development including the calculation of the amount of density bonus to be paid under Section 37 of the Planning Act, and the cash payment in lieu of providing parkland. The new definition of gross floor area makes these obligations to pay and/or provide, effectively more onerous. The development industry have appealed the definition of gross floor area to the Ontario Municipal Board, among other aspects of the Bylaw.

The new definition will cause those properties that are built to their maximum floor area permission to now exceed that permission; and for those properties that may have had some remaining floor area entitlement under the former definitions, that is now taken up in an amount equal to the total amount of existing void space. In order to reduce the cloud of uncertainty created by legal non-conformity, built into the Bylaw is new gross floor area exemption language which recognizes as permitted, the higher gross floor area value, inclusive of void space. However, there is no Bylaw mechanism to compensate owners for the loss of what would otherwise be as-of-right floor area entitlement. And any floor area entitlement that may remain, must now must be developed under the new, more restrictive definition of gross floor area.

While the City has sought to cure other aspects of Bylaw non-conformity with similar exemption language (e.g. building height and setbacks), not all built form changes under the new Bylaw have been covered off with exceptions. Therefore, the City has developed a series of general provisions in the Bylaw that address legal non-complying buildings. Some care must be taken however, as it is likely that a number of the City's general provisions on non-conformity may fall afoul of 2009 decisions of the Ontario Municipal Board and the Divisional Court in City of Ottawa v. TDL Group Corp., which found that municipalities may not put constraints on property owners' legally non-conforming (and non-complying), or "grandfathered" rights beyond those found in common law. As a result, those sections of the Bylaw are also currently under appeal by a number of appellants.

Drilling down on some of the more contentious details of the Bylaw, as this article, and our preceding September article did, may now be all for naught! In a stunning reversal of position at its meeting on March 24, 2011, the City’s Planning and Growth Management Committee (the “Committee”) voted unanimously to stop any further work on the Bylaw, and instead, directed its planning staff, in consultation with its legal department, to report directly to Council on April 12th on a bylaw to repeal Bylaw 1156-2010.

Before the Committee on March 24, was a Report by the City’s Chief Planner which was recommending even further amendments to the Bylaw already under appeal. Many of the same cast of objectors to the Bylaw the first time around, were there again on March 24, grilling the Committee further about countless problems with the Bylaw that is barely seven months old.

The Committee roundly agreed that it was senseless to further amend a Bylaw that has already been shown to clearly not work. Rather than accepting the Planning Commissioner’s recommendation for more changes, the Committee directed staff to further consult with stakeholders and to bring back a revised harmonized bylaw with no greater scope than the new Bylaw, no later than January, 2012.

The unanimous recommendation of the Committee to repeal, and bring back a revised harmonized Bylaw no later than January, 2012, will go to Council on April 12th. In the interim, planning and legal staff are considering a repealing bylaw and the financial implications of this. It is widely expected that Council will vote to repeal the Bylaw and direct legal staff to prepare that Bill on April 12. That direction is somewhat complicated by the fact that Committee, in the same breath, has also recommended that Council sustain the provisions in the Bylaw related to outdoor, and rooftop patios and nightclubs. If and when the Bylaw is repealed, the previous bylaw regime, being the myriad of zoning bylaws of the pre-amalgamated municipalities’, will again apply.

The City’s Bylaw struggles continue……stay tuned for further updates.