Written by Sean Tyler, Summer Student in the Davis LLP Toronto Office.
The City of Toronto enacted a new amalgamated city-wide zoning by-law on May 9, 2013. The new by-law is an attempt to consolidate the patchwork of 43 zoning by-laws that were previously in place. This caps a multi-year effort that saw an amalgamated zoning by-law enacted in 2010, only to be unceremoniously repealed shortly thereafter due to implementation problems and appeals (see here and here for details). A key lesson that emerged from that experience? The need for an effective transition process.
The 2013 amalgamation aims to clarify the transition between the old and new by-laws in a few ways.
Gaps in the Map
First, the City has created a transition protocol that excludes certain sites from the new by-law. Among these are sites that are part of a rezoning application or site plan application for which no building permit has been issued, and sites where existing zoning would be inconsistent with the official plan if simply reiterated. In effect, these sites are “left off the map” and the former by-laws, which have not been repealed, will continue to apply. This is an interim solution and the City plans to fill in the gaps and bring these sites within the new by-law, “after careful consideration and consultation with property owners.” The details of how this process unfolds will be worth watching.
Dealing with Applications
Second, the new by-law contains transition clauses that ensure applications made prior to or on May 9, 2013 (the date of enactment) will be reviewed, processed and approved under the former zoning rules. For example, s. 2.1.3 sets out the treatment of active applications for zoning certificates, building permits, minor variances, site plan approvals and others. These clauses provide that complete applications will not be subject to a dual review under both sets of rules.
Notably, applications that are made after May 9 but flow from an application made prior to May 9 will also be reviewed under and apply to the former by-laws. For example, if a minor variance application was submitted prior to May 9, it may be approved after May 9 with reference to the former by-law only. Similarly, a building permit related to that variance may be issued in compliance with the old by-law. The chart below details how the by-laws apply to different applications.
It is important to note that the transition clauses will only be in effect for three years. This means that, for example, in three years any building permit will be considered under the new by-laws, regardless of the time it was applied for.
The new by-laws also provide three more measures to ease the transition:
- The minor variance clause allows previously approved minor variances to remain in force as if they were variances to the new by-law, except where a variance has not been acted upon and the varied provision becomes less permissive under the new by-laws.
- Exemption clauses grandfather in existing buildings that complied with prior regulatory standards by allowing “lawfully existing” buildings that would otherwise violate the new by-laws.
- Site-specific exemptions included in the main text of the by-law set out certain sites where the exemptions are made to clarify the interpretation of the by-law.
The City seems to have learned from its earlier struggles. The new amalgamated zoning by-law provides a much more structured transition, hopefully avoiding the problems that led to the 2011 repeal. For everyone working with these by-laws, that can only be good news.
Chart: What By-law Will Apply?
|Application for a:||Submitted on or before May 9, 2013||Submitted after May 9, 2013 but before May 9, 2016|
|Zoning certificate||Former by-laws apply||New by-laws apply|
|Building permit||Former by-laws apply||
New by-laws apply; EXCEPT IF:
– The permit complies with approved plans for a zoning certificate application filed prior to May 9, 2013 and the permit application complies with the former by-laws and finally approved minor variances.
– The permit is for a minor variance application made prior to May 9, 2013 if the permit application complies with the former by-laws and finally approved minor variances.
|Minor variance||Former by-laws apply||
New by-laws apply; EXCEPT IF:
– A minor variance is required resulting from alterations to a building permit application made prior to May 9, 2013.
– A minor variance is required in order to issue a building permit for a zoning certificate application made prior to May 9, 2013.