Finally! A New Zoning Bylaw for the City of Toronto
By: Brian Parker

1.         Background

On August 25, 2010, by a vote of 33 to five, City of Toronto Council approved a new zoning bylaw for the City of Toronto.  Bylaw 1156-2010 (the “Bylaw”) replaces the myriad of former bylaws of the six former municipalities and now regulates the use of land, the size and location of buildings and structures, and parking and loading within the geographic boundaries of the amalgamated City of Toronto.

Crafting the Bylaw proved to be an enormous and complex zoning exercise.  The zoning project commenced in June 2004; public consultation spanned six years.  For the most part, the zoning project was undertaken by City planning staff.  External consultants were relied upon to address certain built form issues associated with a number of the new commercial and residential standards, and with certain parking and loading considerations.  The City invested over $6 million in this exercise.

The focus of the project has been on consolidating the City’s 43 existing zoning bylaws of the six former municipalities into a single zoning bylaw with a common language and structure.  The Bylaw will regulate approximately 480,000 properties across the amalgamated City.  Approximately 6,500 properties, for reasons outlined below, have not been brought forward into the Bylaw and in the interim, continue to be governed under the former bylaw regime.

2.         Key Features of the Bylaw

A Harmonizing Approach:

Despite the similarities in structure and content among the former zoning bylaws, there are different technical approaches used to achieve the same bylaw control.  One example of this is the way that permitted residential building height is calculated.  Accordingly, the process of harmonizing the different technical approaches formed a major component of this bylaw consolidation exercise and proved to be the most complicated, time consuming and controversial aspect of the zoning project.

The concept of a common language, i.e., finding and comparing similar zoning provisions among the former bylaws and replacing these with a single new provision, is meant to capture and incorporate into the Bylaw existing performance standards governing such measureable matters as height, density and setbacks without substantive change.  Therefore, a key challenge of the process was one of standardization, and continued bylaw compliance, rather than the creation of new standards that could render properties non-conforming.

A Best Practices Approach:

Accordingly, the Bylaw is not meant to substantially alter the in-force standards.  But despite the similarities in structure and content among the former zoning bylaws, there are different approaches to achieving the same zoning control.  For example, all the former bylaws regulated height, but had different methods of measuring it.  In such instances a common approach had to be selected.  In choosing an approach, planning staff took into account its prevalence among existing bylaws; its applicability to various parts of the City; the ease of implementation; and whether legislative changes or current Official Plan policies indicated a need for a new approach.  As a result, the Bylaw reflects some part of each of the former bylaws and no one previous bylaw dominated in choosing a best practice.

Planning Act Protection:

While city staff maintain that the process throughout was aimed at harmonizing, the reality is that the principle of a best practice and choosing a common approach has led to substantial zoning changes and extensive cases of non-conformity respecting a given bylaw standard.  Compounding this is the fact that many other changes found in the Bylaw (itemized below) were requested as part of city staff’s initial project mandate, or these changes emerged in response to issues raised by the public.

Additionally, staff had to cast thousands of existing site and area-specific exceptions into the new language of the Bylaw.  This translation exercise has drawn significant criticism from the development industry who argue that this zoning process has been more an exercise of change, than standardization.  At the concluding public meetings there were accusations of “back-door rezoning under the guise of harmonization.”  In short, the Bylaw, as approved, is very much a changed Bylaw, and it has created many site-specific instances of non-conformity.

In order to address public concern about non-conformity, the City has included, a “Non-conformity/Non-compliance” policy in Chapter 700 of the By-law.  The By-law recognizes as legal, all lawful aspects of the lot, building and use that exist as of the date of the By-law, and to permit their enlargement and alteration provided that such enlargement or alteration comply with the applicable regulation of the By-law.

However, landowners should recognize that a contemplated expansion that may have been permitted under the former zoning may no longer be permitted under the Bylaw.  While reconstruction is permitted, a building is, under the By-law, considered to no longer be the same building if more than 50 per cent of its ground floor main walls are removed.  A significant alteration could cause a building to no longer be grandfathered under the Bylaw.

Minor Variances:

There was public concern expressed over the issue of previously approved minor variances that these should continue to be recognized by the Bylaw.  Section 2.1 of the Bylaw has been created to clarify the status of existing approvals attained through the Committee of Adjustment and site-specific by-laws or re-zonings.  In respect of minor variances, after great debate between staff and Council over the wording, the Bylaw contains the following protection: “No person may use or permit the use of any land, building or structure except in conformity with this Bylaw or a variance finally approved pursuant to Section 45 of the Planning Act, R.S.O. 1990, c.P. 13, as amended.  All minor variances in effect prior to the enactment of this Bylaw shall continue to apply and remain in force.”

On the issue of Committee of Adjustment applications that are pending a hearing date, and that seek amendment to the former bylaws, Council has directed staff to “give priority” to these applications and where it is determined that a new application is required, that the Committee of Adjustment waive the fees for such applications.

Bylaws to Prevail:

As noted, there were over 10,000 site-and area-specific amendments to the myriad of former bylaws that staff individually considered and incorporated into the Bylaw.  For those amendments that were deemed to be straight forward in their language, these have been re-cast and incorporated into Chapter 900 of the Bylaw as Site Specific Amendments.  The more complicated amendments have been retained as Prevailing Bylaws and have been incorporated into Chapters 950 and 955 of the Bylaw.  In respect of continuation and conflict, any prevailing bylaw shall continue in full force and effect and if there is a conflict between a provision of the Bylaw and the prevailing bylaw, the provisions of the prevailing bylaw will govern.

An Electronically-based Bylaw:

The Bylaw is an ominous and complex document, which many argue is incomprehensible to the average citizen and deserves a set of implementation guidelines.  The Bylaw comprises three volumes and approximately 7,000 pages of text and maps.  Volume one contains all of the various zoning standards and related regulations, volume two contains all of the residential site-specific zoning exceptions, and volume three contains all other site-specific exceptions for remaining lands, including a complete listing of all prevailing bylaws, and Bylaw mapping.

The Bylaw will only be made available in hard copy upon special request and at a significant cost.  By necessity, the Bylaw must be web-based.  Below is a link to a PDF copy of the Bylaw, which at the time of publication of this article, was the only available on-line version of the Bylaw.  In time, there will be an interactive version tied to a municipal search engine programmed by municipal address.  This interactive version will display all relevant zoning information at a glance on a single page, including the underlying zoning symbol, related sub-links to all applicable bylaw sections, and a list of all site-specific exceptions and any prevailing bylaws that apply.

http://www.toronto.ca/legdocs/bylaws/2010/law1156-Schedule-A.htm

Transition Considerations:

Section 24 of the Planning Act mandates that the Bylaw must be in conformity with the Official Plan.  The former zoning of some properties, for example, zoning which permits pure retail uses in employment areas, could not be brought forward because such retail permission is now contrary to the Provincial Growth Plan and Provincial Policy Statement.  Therefore, for Official Plan compliance reasons, there are many employment-zoned properties that have been left out of the Bylaw for further study.

Also, lands that form part of larger secondary planning areas that contain complicated and comprehensive area-based zoning bylaws, such as the Central Finch Secondary Plan, the Centres and the Railway lands, have also been left out of the Bylaw.  Additional time and staff resources are needed to work out a best approach for translating these controls into the language of the Bylaw.  Sites that are currently under development and in the site plan approval process are also not regulated by the Bylaw, nor are properties associated with an application for site-specific zoning amendment passed by Council in July or August, or bylaws currently under appeal at the Ontario Municipal Board.

Other lands have been omitted from the Bylaw due to irreconcilable land use issues that require more time to resolve.  These include all of the properties held by the Toronto Public and Catholic School Boards.  As well, groups of regulations have been removed from the Bylaw, for example, new regulations for rooming houses and group homes, and chemical separation distances.  Many in the development industry are calling the Bylaw the “Swiss Cheese” Bylaw because of all the holes and omitted properties, and are claiming that the Bylaw is more a “residential” zoning bylaw than a “comprehensive” zoning bylaw.

Properties omitted from the Bylaw total in excess of 7,000.  These will be identified on the Bylaw’s mapping as Not Part of This Bylaw and will continue to be governed by their respective zoning bylaw.  This is an interim solution.  City Council have directed the Chief Planner to report back at a future meeting of the Planning and Growth Management Committee on a recommended process to ensure that owners of lands that are not included in the Bylaw, and all neighbouring land owners to such lands, are consulted on any proposed zoning changes prior to staff recommending any Bylaw changes.

3.         New Elements of the Zoning Bylaw

Zones and Zone Categories:

There is a new set of Zones and zone categories replacing the myriad of zoning categories under the former bylaws.  The new zoning categories are:

• Residential Zone (includes five sub-categories):
  • Residential (“R”), Residential Detached (“RD”), Residential Semi-detached (“RS”), Residential Townhouse (“RT”), Residential Multiple (“RM”)
• Residential Apartment Zone (“RA”)
• Commercial Zone (“CL”)
• Commercial Residential Zone (“CR”)
• Commercial Residential Employment Zone (“CRE”)
• Employment Industrial Zone (includes five sub-categories):
  • Employment Industrial (“E”), Employment Light Industrial (“EL”), Employment Heavy Industrial (“EH”), Employment Industrial-Commercial (“EC”), Employment Industrial – Office (“EO”)
• Institutional Zone (includes four sub-categories):
  • Institutional (“I”), Institutional Hospital (“IH”), Institutional Education (“IE”), Institutional School (“IS”), Institutional Place of Worship (“IPW”)
• Open Space Zone (includes six sub-categories):
  • Open Space (“O”), Open Space Natural (“ON”), Open Space Recreation (“OR”), Open Space Golf Course (“OG”), Open Space Marina (“OM”), Open Space Cemetery (“OC”)
• Utility and Transportation Zone (“UT”)

Overlay Mapping:

New Height, Lot Coverage, Conservation, Policy Areas, and Rooming House Overlay Mapping for the purposes of identifying specific areas of the City where additional regulations and Bylaw standards apply.

Non-Residential Elements:

• New definition of gross floor area (gfa), which includes “void” areas previously exempted; interpreted by the development industry as a City-wide “down-zoning”; Section 37 and Public Art contribution implications
• For the calculation of permitted FSI, land area located below the “Shoreline Hazard Limit” or “Stable Top-of-Bank” may no longer be included
• Most retail commercial uses, including eating establishments, will be prohibited as principal uses in the Light and Heavy Industrial zones and more restrictive size and locational standards will apply to these uses in the other Employment zones
• Within the downtown of the former City of Toronto, more onerous size and locational restrictions are being imposed on eating establishments, clubs, cabarets, and similar assembly-type uses, including their associated patio areas
• Many uses, like drive-throughs and service stations, will be required to meet more stringent locational and performance standards throughout the City
• Added clarity that all parts of a drive-through facility, including stacking aisles, must be a minimum 30 metres setback from any lot in a Residential Zone category, Commercial Residential Zone category or Commercial Residential Employment Zone category
• Certain design elements of the City’s Tall Building Guidelines have been imported into the Bylaw including a 25-metre separation between tall buildings (generally those over 21 metres or seven stories in height – the width of the adjacent road right-of-way) and limit a mixed-use tall building’s floor plate to 750 square metres.  Other setbacks are also affected
• Three new Development Standard Sets are introduced to control building design in Commercial Residential zones aimed at consistency in streetscape pattern, reducing bulk at the lot edges and protecting adjoining neighbourhoods
• New buildings on main Avenues in the Commercial Residential zones will need to be at least three stories in height
• Existing “Big Box” sites have been left out of the Bylaw to be brought in at a later date under a new Employment Industrial-Commercial (“EC”) zoning once property/zoning boundary considerations have been addressed
• Places of worship and schools will no longer be permitted to locate as-of-right in Residential or Employment zones and will require rezoning approval for this
• Propane handling facilities are conditionally restricted to the Heavy Industrial zones only, and the minimum separation distance to residential zones has been increased from 300 to 500 metres
• The inclusion of new provisions dealing with the separation of uses based on chemical usage has been deferred for study to the second quarter of 2011
• A salvage yard is no longer a permitted use in the Heavy Employment zone
• A waste transfer station is no longer a permitted use in the General Employment zone
• New provision in Employment Industrial zone to permit larger ancillary office use to a manufacturing use

Residential Elements:

• New sliding scale specifying minimum side-yard setback standards based on the width of street frontage
• New minimum rear yard setback standard, which is tied to the depth of lot
• New rear yard soft landscaping standard in the “R” and “RD” zones requiring that at least 50 per cent of the rear yard be landscaped
• On certain wider lots, the traditional building length standard of 17 metres has been conditionally increased to 19 metres
• New methodology for calculating permitted building height, now measured to the peak of the roof, including a revised definition of established grade
• New height/design restrictions on flat-roofed houses
• New first-floor height restriction aimed at controlling “front entrance” appearance from the street and reinforcing the city-wide prohibition of integral below-grade garages
• Maximum height limit restriction on accessory structures
• Revised definition of gross floor area now considers residential basement space aimed at better controlling overall bulk of dwelling
• Added clarity to ensure that a second dwelling unit, located in a basement that is ancillary to a principal dwelling, is included in the FSI calculation
• Greater clarity and tightening up of permission for home-based occupations
• House-form buildings converted to day nursery use now restricted to “R” zones only (the R2, R3, R4 and R4A zones in former City of Toronto).  Staff to report at a later date on appropriate site-planning standards to regulate these uses
• Existing rooming house and group home regulations carried forward in the Bylaw; both rooming houses and group homes to be the subject of a City-wide review in 2011

Parking and Loading Elements:

• Revised parking methodology and standards based on four parking policy areas.  The Bylaw ties the required amount of parking to the level of transit in the policy area (PA1 – Downtown and Central Waterfront; PA2 – Centres; PA3 – Avenues on a subway line and PA4 – Avenues on a bus or streetcar line)
• Non-residential parking standards for the Avenues have effectively been lowered
• Minimum parking standards for Assisted and Alternative Housing have been lowered
• Minimum parking standards for schools effectively lowered; standard now expressed on a common floor area basis and replaces previous standard based on number of classrooms
• New mandatory bicycle parking requirement for commercial uses with up to 200 sq.m of gfa for post-secondary school facilities
• New locational criteria for bicycle parking within a development
• New parking substitution permission in Downtown allowing required vehicle parking to be reduced by 20 per cent by substituting five additional bicycle spaces for each vehicle space required
• The “sharing formula” for parking in mixed-use developments has been extended over a wider range of uses
• The Bylaw prohibits the charging for visitor parking in all Residential and Apartment Residential zones. There is no such prohibition in the mixed Commercial-Residential zone
• New loading provision in the Downtown and Centres allowing Type B and Type C spaces to be shared among office/retail, restaurant/service/hotel uses
• The option for required non-residential parking to be provided off-site, by way of lease within 300 metres of the site, has been eliminated

4.         Moving Forward

Significant criticism of the Bylaw by both the development industry and the general public remains.  At the concluding public meeting on August 19, 2010, there were over 1,000 letters expressing continued opposition to the Bylaw.  A motion by Councilor Shiner, at the outset of the final Council meeting on August 25, 2010, to defer further consideration of the Bylaw until 2011 (when the City is required by the Planning Act to review and adopt a new Official Plan), lost by a margin of 28 votes to 11. 

Calls for a delay of the Bylaw were based on the following:

• An overly complex and confusing Bylaw; incomprehensible to the average citizen
• Errors and irregularities in the web-based search engine for many properties
• Goes well beyond harmonizing by introducing many new and changed standards seen as “back-door” rezoning in bad faith
• Will render “thousands” of properties non-conforming and, on the whole, constitutes a “down-zoning” of the City of Toronto
• Premature given that the City is faced with a statutory mandate to approve a new Official Plan in 2011 to which the Bylaw must conform
• Insufficient information at the time of final statutory notice to understand the Bylaw and the complexity of ongoing changes being made to it by staff and Committee right up to the concluding day of Council deliberation

It is anticipated that there will be wide-spread appeal of the Bylaw.  Under the Planning Act, if a person or public body does not make oral submissions at a public meeting or make written submissions to the Clerk before the Bylaw is passed, that person or public body is not entitled to appeal the decision of Council to the Ontario Municipal Board. 

For those individuals who did make oral or written submissions during the consultation process, and who desire to appeal the Bylaw, that appeal must be filed to the Clerk of the City of Toronto no later than 20 days after the Clerk’s Department issues statutory notice of the Bylaw’s passing.  Issuance of that notice occurred on September 10, 2010 and the last date for appeal of the Bylaw is September 30, 2010.  A copy of the statutory notice may be obtained by contacting the Manager of City Council, Ms Francis Pritchard, at 416.392.4339.

Brian Parker, MCIP RPP

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