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Toronto's allowable land uses in flux
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April, 2010

By David Tang

It has been 12 years since the six local municipalities that formed Metropolitan Toronto were amalgamated into the City of Toronto. Toronto is now considering the approval of a new harmonized zoning by-law to replace the zoning by-laws of the former local municipalities.

 

The process of harmonizing the many different zoning categories, definitions, uses, restrictions and development standards used across Toronto before amalgamation means that most properties will see some change in what uses will be permitted in the future, whether an expansion, addition or redevelopment will be permitted, and to what extent. Layered on top of the changes caused by the harmonization of the different zoning by-laws is the City’s introduction of new standards designed to capture what planning staff have called best practices.

While existing buildings will be grandfathered both by the proposed by-law and the Planning Act’s legal non-conforming provisions, any expansions, additions or redevelopment will have to conform to the new zoning by-law.  It is possible that not only the size or location of a potential expansion will be affected; the ability to build anything more will be restricted, even if the current zoning by-law would permit the expansion today.
Even more significantly, the type of uses that can be carried out on a piece of land may be changed as a result of the re-categorization of the commercial and industrial (now to be called Employment) zones and the harmonization of the uses permitted in the different zones by the pre-amalgamation zoning by-laws. A use of a property that could be introduced today may no longer be permitted under the future new zoning by-law.

The City has also proposed introducing some new standards. These will obviously change the manner in which a piece of land may be developed or redeveloped.
 
Some of the more notable changes include:
  • Most retail commercial uses will be prohibited in the heavy Employment (Industrial) zones and more restrictions will apply in the other Employment zones
  • Many uses, like drive-throughs and service stations, will be required to meet more stringent locational and performance standards
  • Categorization of manufacturing uses based on the North American Industry Classification System (NAICS)
  • New parking and loading standards are being introduced with differences based upon proximity to public transit
  • New “Tall Building” standards will require a 25-metre separation between tall buildings (generally those over 21 metres or seven storeys in height – the width of the adjacent road right-of-way – and limit a mixed-use tall building’s floorplate to 750 square metres. Other setbacks are also affected
  • New standards for the location, height and form of buildings in the Commercial Residential zones are introduced with three sets of standards depending on location
  • New buildings on main Avenues in the Commercial Residential zones will need to be at least three storeys in height
  • Big Box stores will not be permitted except in a specific Employment zone
  • Places of Worship and schools will no longer be permitted to locate as-of-right in Residential or Employment zones
  • Residential density, coverage, height and building setbacks will be calculated differently, resulting in real changes to what can be built or rebuilt
  • A landowner may no longer charge for visitor parking
Grandfathered status vulnerable
Why should landowners care about this new zoning by-law if their existing buildings are going to be grandfathered?
  • The new zoning by-law will govern additions or expansions. A contemplated expansion that might be permitted now may no longer be permitted under the new by-law.
  • Redevelopment of a particular property may be affected, not only in terms of the size or location of any new buildings, but in what uses or activities might be permitted on the property. Uses currently permitted but not being carried out may be eliminated and are not protected.
  • Uses that the landowner or its tenants are carrying on may be prohibited by the new by-law. If a tenant leaves and the next tenant does not continue that same use, that use will be lost to the property. Even the original tenant may not be able to move back in.
  • A building is, under this new by-law, considered to no longer be the same building if more than 50% of its ground floor main walls are removed. A significant alteration could cause a building to no longer be grandfathered under the new zoning by-law.
  • Properties with site-specific or special zoning may lose those permissions (which usually exceed those in the base zoning by-law) unless those site-specific provisions are laid out in what is likely to be sections 900 and 950 of the new zoning by-law.
  • Responsibility for ensuring that site-specific zoning is carried through into the new by-law is practically going to rest with individual landowners because the City is not guaranteeing that it has recognized all of the special zoning that exists in Toronto.
Public input parameters
The current process requires the City to consider comments and site-specific requests for changes. The best time to protect zoning and property rights and avoid conformity issues is before the new zoning by-law standards and rules are approved and acted upon. Seeking planning approvals later (a rezoning or minor variances) from the new standards will almost certainly be more difficult, expensive and involved than opposing any by-law provisions now.

Failure to submit comments now, before the zoning by-law is adopted by City Council, will prevent a landowner from filing an appeal of the zoning by-law with the Ontario Municipal Board. In order to preserve the right to contest the changes this zoning by-law makes, property owners must make submissions to City Council.
 
The most recent report was released on March 1, 2010. The next staff report outlining changes is anticipated for April 21, 2010. An Open House will be held on May 27, 2010 and the statutory public meeting is scheduled for June 16, 2010, after which the City could pass the zoning by-law. The City is targeting to pass this new zoning by-law this summer, before the municipal election this fall.

David Tang is a partner with Gowling Lafleur Henderson LLP. For more information, see the web site at www.gowlings.com. This article originally appeared in the March 2010 issue of Canadian Property Management.		  
 
 
 
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