1. April 21, 2010 Draft of New City-wide By-law

The City of Toronto has indicated that it intends to pass a new City-wide zoning by-law, which may have implications for all properties in the City.

On April 21, 2010, the City released a revised draft of the proposed zoning by-law (the "Draft By-law"). This is the first revised draft since the original draft was released in May 2009. City Staff has advised that the Draft By-law will be subject to further revisions, and that the City may be releasing further updates up until the May 19, 2010 Planning and Growth Management Committee ("PGM") meeting.

2. Appeal Rights

The PGM Committee may recommend, and City Council may make, changes to the Draft By-law up until the time of enactment. Accordingly, the Draft By-law, in its current form, may not reflect the by-law as enacted by City Council. This consideration is important particularly in light of recent changes to the Planning Act that affect rights of appeal and party status (as discussed below).

In order to maintain a right to appeal the Draft By-law to the Ontario Municipal Board, a person must make oral submissions at a Public Meeting or written submissions to City Council before the Draft By-law is adopted. Failure to do so will result in the loss of appeal rights: it does not matter whether City Council has changed the Draft By-law without notice, the right of appeal is still lost. In addition, a person may be refused party status to an Ontario Municipal Board hearing on appeals of the Draft By-law, subject to the discretion of the Board, if such person fails to make oral or written submissions prior to the enactment of the Draft By-law by City Council.

Written comments should be addressed to:

Mayor Miller and Members of City Council
Toronto City Hall
100 Queen Street West
Toronto, ON M5H 2N2

Attention: Ulli Watkiss, City Clerk
Merle MacDonald, Administrator, Planning and Growth Management Committee

A copy of the Draft By-law and updated interactive mapping can be found at: www.toronto.ca/zoning.

Our view and advice to clients continues to be that the Draft By-law is only meaningfully reviewed on a site-by-site basis. The following only serves to highlight some important issues attending this latest draft version. We encourage all property owners to review their portfolio of properties in order to determine the impact of the Draft By-law on existing and future zoning permissions. We would be pleased to assist in this review or to discuss any site-specific or general issues arising from the Draft By-law.

3. Timeframe for Approval

Based on the direction given by the PGM Committee at its April 21, 2010 Meeting, the expected timeframe for approval of the Draft By-law is as follows:

• Final Staff Report to be prepared for the May 19, 2010 PGM Committee Meeting that addresses any further concerns and issues that may be raised as a result of the release of the Draft By-law
• Statutory Open House on May 27, 2010
• Statutory Public Meeting (at PGM) on June 16, 2010

Should the Statutory Public Meeting take place as currently proposed, City Council may enact the Draft By-law as early as its July 6-7, 2010 Council meeting.

4. Selected Highlights of the Draft By-law

(a) Changing Zoning Standards

The Draft By-law proposes many changes to various zoning standards, as reflected in such matters as parking and loading requirements, minimum setback and frontage standards, use permissions, and building height and landscaping standards. Revised bicycle-parking standards have also been introduced in the current Draft By-law.

Of particular note, the Draft By-law incorporates proposed new built form regulations that will affect as-of-right building permissions for properties zoned Commercial Residential (CR). The Draft By-law introduces the following three categories of development standards for buildings in CR zones: Standard Sets 1 (SS1), 2 (SS2) and 3 (SS3).

As set out in the April 7, 2010 Staff Report that was considered by the PGM Committee at its April 21, 2010 meeting, City Staff are proposing that the CR Zone category be applied to all areas designated Mixed Use Areas as well as some areas designated as Regeneration Areas in the Official Plan.

(b) Standard Set 1 and "Tall" Building Requirements

Standard Set 1 sets out different regulations depending on whether a property is subject to an as-of-right height limit of 46+ metres. Where a property is subject to Standard Set 1 and has an as-of-right height limit of 46+ metres, it will be subject to the "tall" building requirements set out below.

Note: based on our review of the Draft By-law, there are what appear to be typographical errors in the text of these new regulations. The following sets out City Staff’s presumably intended requirements based on the April 7th Staff Report:

Base Building Requirements

• Maximum height of 0.8 times the width of the abutting "street" right-of-way (where "street" is defined as a "public right-of-way for general traffic circulation") (note: on a corner site, the width of the widest street)
• Minimum floor-to-floor height for the first floor is 4.5 metres
• Maximum front lot line setback of 3.0 metres
• Minimum of 75% of the main wall to be located within the 0 to 3.0-metre setback area (applies to the street on which the building fronts)
• 5.5-metre setback from a side or rear lot line for walls with windows, otherwise no setback is required
• 3.0-metre setback from side or rear lot line where the lot abuts a residential zone
• 11-metre separation between walls with windows on the same lot, otherwise 5.5-metre separation for walls with no windows

Tower Requirements

• Applies to the portion of the building which is greater in height than 0.8 times the width of the abutting street right-of-way (i.e. above the Base Building)
• 25-metre separation between towers on the same lot
• Maximum floor plate of 750 square metres of "interior floor area" for residential buildings (hotels and non-residential buildings are exempt)
• Minimum 3.0-metre step back of the tower from the base building for a minimum of two-thirds of the street wall (applies to all street walls in the case of a corner site) and no encroachments are permitted into this step back
• 5.5-metre setback from a side or rear lot line for walls with windows, otherwise no setback is required
• 3.0-metre setback from a side or rear lot line where the lot abuts a residential zone

It should be noted that the previous May 2009 Draft proposed 12.5-metre side and rear yard setbacks for the tower portion of a tall building. These requirements have been removed from the current Draft By-law. However, according to the April 7th Staff Report, further analysis will be undertaken on the implications of these setback requirements on sites in the Downtown, and that in the meantime City Staff will continue to apply these setback requirements on a site-by-site basis for developments that require a site-specific rezoning.

(c) Standard Sets 2 and 3

Generally, Standard Sets 2 and 3 are associated with a lower as-of-right height limit than 46 metres. As described in the April 7th Staff Report, the SS2 development standards are generally applicable to main streets with a mix of commercial and residential development, and the SS3 development standards are generally applicable to major streets with primarily commercial uses. The Draft By-law currently sets out angular plane and setback requirements for properties subject to the SS2 and SS3 development standards, and prohibits encroachments into required angular plane setbacks.

(d) New Definitions

If approved in its current form, the Draft By-law would introduce various new definitions and modifications to previous definitions, including: green roof, gross floor area, interior floor area, parking garage, and townhouse. In addition, the Draft By-law has removed various definitions, including: height, mixed use and social housing. Building/structure height is now determined in accordance with zone specific regulations. Given these changes the transition provisions and protocols will need to be closely examined to ensure that existing zoning rights are maintained.

(e) The Use of "Holes"

Some properties and/or areas within the City have been deliberately left out of the current Draft By-law in the form of "holes" on the attached zoning maps. These properties are noted as "Not Part of this By-law" on the mapping. For example, areas designated as Centres in the Official Plan (in Etobicoke, North York, Scarborough, and parts of Yonge and Eglinton) as well as the Central Waterfront have been left out of the Draft By-law. These areas each have a comprehensive development regime and existing zoning that are tied to unique Secondary Plan provisions.

(f) Prior Zoning Rights

The concepts discussed below are still being considered by City Staff at the time of writing (May 5, 2010) for potential amendment. The provisions of Chapters 900 (Site Specific Amendments), 950 (Prevailing By-laws), and 955 (Prevailing By-law Sections) of the Draft By-law are incomplete and will be updated on an ongoing basis prior to the ultimate consideration of the Draft By-law by City Council.

Site Specific By-laws

Complex site-specific zoning by-law amendments are currently recommended to be listed in the Draft By-law as a "Prevailing By-law" or "Prevailing By-law Sections", which will continue in force and prevail to the extent of any conflict between the site-specific zoning provisions and the Draft By-law. These provisions are currently being set out in Chapters 950 and 955 of the Draft By-law, but which are manifestly incomplete at the time of writing.

City Staff is proposing to include other site-specific zoning permissions in Chapter 900 of the Draft By-law as an exception applying to a specific property by an "x" notation. The most recent mapping released with the current Draft By-law may not include all of the "x" notations, but City Staff advise that they are continuing to update the mapping.

Minor Variances

In addition to site specific zoning by-laws, minor variances also effectively provide site specific zoning permissions. However, the proposed Draft By-law does not incorporate increased development permissions that were obtained by minor variances to, for example, By-law No. 438-86, as amended. If no provision is made in the Draft By-law to recognize minor variance permissions, and where a building permit has not been obtained for the subject construction permitted by the minor variance, such permissions will be lost upon the Draft By-law coming into full force and effect. In addition, even if a building permit is obtained, it is probable that the Draft By-law will render such sites as legal non-conforming.

Section 12 Exceptions of By-law No. 438-86, as amended

Section 12 of the current Zoning By-law for the former City of Toronto (By-law 438-86, as amended) contains hundreds of site-specific permissive and restrictive exceptions. According to the April 7th Staff Report, these exceptions will be individually analysed to determine their treatment in the Draft By-law.

City Staff is recommending that the decision to not incorporate an exception into the Draft By-law should be based on the following considerations: (i) has the exception been adopted as a City-wide standard and is therefore no longer needed; (ii) does the exception involve a property that is "Not Part of this By-law"; (iii) does the exception involve a matter that would give rise to a conflict with the applicable policies of the Official Plan; or, (iv) is the provision based on a complicated set of rules that are more appropriately brought in as a "prevailing section", which would maintain the original words of the exception in the context of By-law No. 438-86, as amended.

(g) Transitional Protocol for Pipeline Projects

As set out in the April 7th Staff Report, City Staff is proposing to exclude sites from the Draft By-law for which an application for Site Plan Approval has been submitted (even if Notice of Approval Conditions have not yet been issued). However, once the site development is completed, the intent is to include the site in the Draft By-law, presumably by way of an amendment to the Draft By-law once it is in full force and effect.

In addition, City Staff is proposing to exclude from the Draft By-law any property associated with a site-specific zoning by-law amendment application that will be considered by Council at its July and August 2010 meetings.

The mechanism proposed by City Staff for dealing with "pipeline projects" is not apparent from the current Draft By-law or the April 7th Staff Report.