How will the city of Toronto's new draft harmonized zoning by-law impact your property rights? 

publication 

February 2013

Real Estate Bulletin

The City of Toronto is in the process of finalizing a new harmonized city-wide zoning by-law that will bring together the existing zoning by-laws for Toronto, Etobicoke, East York, North York and Scarborough. The final version of the draft zoning by-law, released on November 8th, 2012 (the "New Draft Zoning By-law"), includes a number of changes to existing zoning regulations that could significantly impact properties across the City. It is anticipated that the New Draft Zoning By-law will be approved by City Council in mid-2013. In light of the potential impacts of the New Draft Zoning By-law, it is recommended that landowners consider the impact that the new draft zoning by-law may have on their land holdings and take steps to preserve their right of appeal.

history of the by-law

On August 27th, 2010, Council for the City of Toronto enacted By-law 1156-2010 as a harmonized city-wide zoning by-law for the amalgamated City of Toronto. Less than one year later City Council – faced with 694 appeals of By-law 1156-2010 and fearing a lengthy delay in its approval by the Ontario Municipal Board – repealed By-law 1156-2010 and directed planning staff to engage in consultations with stakeholders and bring forward a new harmonized zoning by-law.

From the ashes of By-law 1156-2010 rose a revised draft zoning by-law, released by the City on June 18th, 2012 for public review and comment. Consultations between City planning staff and stakeholders ensued for the next three months and on November 8th, 2012, the City released the New Draft Zoning By-law. The New Draft Zoning By-law will go before the Planning and Growth Committee (the "PGMC") at a Statutory Open House and Statutory Public Meeting on February 27th and March 6th, 2013, respectively. If approved by the Committee, the New Draft Zoning By-law will proceed to City Council for approval later in 2013.

how changes under the by-law could impact your land holdings

The New Draft Zoning By-law includes the following revisions from the repealed By-law 1156-2010 that protect existing development applications, buildings and site specific exceptions:

  1. Development applications currently in the approvals pipeline will be considered "NOT PART" of the Final Draft Zoning By-law. Each application will be processed under its formerly applicable zoning by-law.

  2. Lawfully existing buildings will be protected by grandfathering or exemption clauses under the New Draft Zoning By-law that recognize the existing conditions of the building (e.g. existing height, setbacks, etc.) as the permitted zoning requirement. This grandfathering treatment of lawfully existing buildings upholds their conformity with the by-law and avoids a "legal non-conforming" designation.

  3. Minor variances will continue to be recognized and may be relied upon under the New Draft Zoning By-law if the applicable regulatory standard has not become more restrictive. For example, if the permitted height has been lowered under the New Draft Zoning By-law, a minor variance for height may not be relied upon. Alternatively, if the permitted height remains the same or increases under the New Draft Zoning By-law, a minor variance for height may be relied upon.

  4. Site specific exceptions, which can include site-specific provisions, prevailing site specific by-laws and prevailing sections of existing by-laws, will apply wherever the Final Draft Zoning By-law is inconsistent with the site specific exception.

Certainly, the above listed changes go a long way to protecting existing lawfully approved developments. However, these changes do not always preserve future development rights for landowners. Under the New Draft Zoning By-law, any new development will have to meet new standards that can be more restrictive of future development potential as compared to the existing zoning regulations. For example, the New Draft Zoning By-law may restrict future development rights in the following ways:

  1. The introduction of regulations for minimum lot frontage, minimum lot size, minimum first floor height, minimum permitted building height and angular planes where none currently apply.
     
  2. The introduction of more restrictive setback requirements, lot coverage regulations, and maximum height permissions.

  3. The introduction of new landscaping requirements and energy regulations.

  4. Changes to the calculation of total interior floor area for an eating establishments in a CR-Commercial Residential zone.

  5. The elimination of certain permitted building types from the permitted building types and of certain uses from the lists of as-of-right or conditionally permitted uses.

  6. The introduction of new or more restrictive conditions for existing permitted uses.

Notwithstanding the foregoing, the New Draft Zoning By-law may also create certain benefits with respect to a property's future development potential, including:

  1. The exclusion from gross floor area calculations of certain floor areas formerly included by the applicable by-law (increasing the permitted gross floor area).

  2. The exemption, under certain conditions, from maximum gross floor area the requirements for designated heritage sites.

  3. The creation of a new Residential Apartment designation.

  4. The addition of certain uses to the lists of as-of-right or conditionally permitted uses.

  5. The reduction in the minimum number of parking spaces required for certain uses, including, but not restricted to, multiple dwelling unit buildings, apartment buildings, offices and eating establishments.

Given that the impact of the New Draft Zoning By-law is property specific, it is strongly recommended that landowners review the New Draft Zoning By-law to identify potential negative impacts. To assist, a Statutory Public Open House will be hosted by the City on February 27th, 2013 from 4:00pm to 8:00pm in the Rotunda, Metro Hall, 55 John Street, Toronto where the City will present the Final Draft Zoning By-law to the public.

If potentially negative impacts are identified, a landowner should take the necessary steps in order to preserve their right to appeal the New Draft Zoning By-law in the event that it is approved by City Council

preserving your right of appeal

To preserve a right of appeal, a landowner must:

  1. Make oral submissions at the Statutory Public Meeting of the PGMC; or

  2. Make written submissions to the PGMC in advance of the Statutory Public Meeting.

The Statutory Public Meeting before the PGMC is to be held on March 6th, 2013 commencing at 9:30am in the Council Chambers at City Hall, 100 Queen Street West, Toronto. At this Statutory Public Meeting landowners, their agents or counsel will have the opportunity to make either oral or written submissions or both regarding the New Draft Zoning By-law and its impact on their land holdings.

by Annik Forristal and Isabel Mitchell

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are
cautioned against making any decisions based on this material alone. Rather, specific legal
advice should be obtained.

© McMillan LLP 2013