PPT's Overview of the Planning Process

The following does not purport to be a detailed explanation of the planning process. The inter-relationships between Official Plans, Provincial Policies, Secondary Plans, Studies and Zoning By-laws (not to mention the opinions of the planners, politicians and developers, or the vague “let’s make a deal” parameters of section 37 funding) are complex beyond words, an ancient battlefield strewn with the remains of conflicting policies, put in place by whomever, whenever, trying to entrench their team’s position and then abandoned like rusting tanks in the desert. It may be that all this jumbled mess is good for is words and phrases to quote in a tone of authority to make whatever argument works for your side.

That said, we here attempt to demystify this all just a little so that all of the registrants to the Neighbourhood Planning Summit have at least some concept of the major parts of the framework (however shaky that framework may be).

Key Elements of Planning

The Planning Act

In Ontario, land use planning is governed mainly by thePlanning Act, most recently amended in 2006[1]. The Planning Act creates a hierarchy of policy and regulation, starting with Provincial Plans at the top (e.g. Greenbelt Plan), followed by the Provincial Policy Statement, 2005, upper- and lower-tier official plans, and zoning by-laws. The Act also governs land division (subdivisions and severances) and site planning.

For the City of Toronto, the scheme is more complicated. The recently revised City of Toronto Act has some specific provisions for planning in the City which are applicable instead of those in the Planning Act. Most are the same and indeed at this point the places where they are different - for example, regarding powers to zone (Planning Act, Sec 34, vs. City of Toronto Act, Section113) - are worded the same! The reason for this is a secret. The secret is that the City might someday get different powers than the rest of the province. Maybe.

The Official Plan

Both upper- and lower-tier municipalities are not just authorized, but required, to adopt Official Plans (OPs). These are policy statements, which spell out the goals and priorities for managing and directing physical change. The level of detail in OPs depends upon whether they are for an upper- or lower-tier municipality, and on whether the municipality uses secondary plans. Generally, OPs mark out the larger categories of land-use (e.g.: residential, commercial, industrial, park, natural). Secondary Plans are more detailed OPs which are normally applicable to specific areas within a municipality. Although they also vary in terms of detail, they generally demarcate land uses on a very specific, block-by-block basis.

The OP is often described as a blueprint for how and where a City will grow, so that those who would build would know the road map of the future; so those who want to “live safe” from development will know where to go. This is deceptive. In reality, the municipalities can and do change their OPs when it suits them. It is common to see a developer’s proposal for a zoning amendment and a complementary amendment to the OP or Secondary Plan just for that particular property.

All municipalities must have an OP and must update it every five years. It must be consistent with the Provincial Policy Statement, 2005 (see below).

The Planning Act requires that all changes to zoning must conform to the Official Plan. (This is why the OP is amended so often and in such a willy nilly fashion.)

Only the Province can take clear steps to make an area safe from development and beyond the power of the developers and the municipality to change. In the absence of direct Provincial intervention, there are no absolute prohibitions in the Planning Act or the Provincial Policy Statement, 2005. As close as it comes is the recent amendment to the Planning Act that prohibits developers from moving on their own to take land out of land specifically designated in an OP as industrial.

Other important elements of planning which we won’t go into detail about here for fear of death by paper include:

• Site plan control. A municipality can pass bylaws that apply to a single site if that area of the city has been designated for “site plan control.” Toronto has designated the whole city for site plan control which allows it, among other things, to be very specific about design requirements.[2] The developer is required to submit detailed site plan drawings for approval.

• Use. The Planning Act allows municipalities to prohibit particular uses in particular areas (e.g. restricting an area to single family residential). Permitted uses, broadly defined, are found in the OP, e.g. industrial vs. residential. Much more detailed use regulation is spelled out in the compendious zoning bylaw, Toronto Bylaw 492. Site-specific bylaws don’t always fit comfortably within this general scheme, but the collection of site-specific bylaws is listed in the most up-to-date copy of Bylaw 492. Maps that come with each of those documents outline where zoning provisions apply.

• Density. Density refers to the size of the building compared to the size of the lot. A building of three stories that covers the entire lot size would be said to be ‘3 times coverage’. Maximum density provisions for different areas of the city used to be in the OP but have been removed and now are found only in the Zoning Bylaw. Again you need to look at the attached maps to see the areas. Planners and architects are quick to point out that comparing densities for particular buildings is almost pointless because slightly different locations, e.g. a corner lot as opposed to mid-block, might make a great difference as to whether a building is “too big” for a particular site. Density for a specific lot is referred to as net density. Density for a larger area that includes streets and parks in the calculations is referred to as gross density. Net density removes roads and parks. Be sure you are comparing mangos with mangos.

• Sun. Access to sunlight is one of the most important aspects of design. The sun/shadow standards, such as they are, are found in the OP and require simply “adequate sunlight” or “minimum shadow impact.”[3]

• Parks and Open Space are critical to whether the neighbourhood will seem “overbuilt.” There is a power to zone or plan for open space or park land but there are important limits on how the City can use this power; for example, it can’t use it to set up the acquisition of land for parks on the cheap. There are provisions in the Planning Act which require developers to contribute parkland or cash-in-lieu thereof.

• Section 37. The famous Section 37 of the Planning Act allows the City to make ‘deals’ with developers for various trade-offs, e.g. more height than allowed in exchange for public benefits. There is now a defined list of benefits the City can accept that was recently adopted as a policy to bring order out of the chaos of where the councillor got to choose. This isn’t supposed to be for standard stuff like parks. An example might be funding for a local arts institution. Whether this is in principle good or bad, is one question. But regardless, the next issue is, who decides on the community benefit? And this is always hugely controversial.

• Holding Bylaws / Interim Control Bylaws. The Planning Act gives the City the right to put a freeze on development in any particular area in two different ways. A Holding Bylaw means a development has been approved but has an “H” (for Hold) which means that there will be no building permit until the conditions of the Hold are met, typically construction of roads by the developer (Section 36). An Interim Control Bylaw (s. 38) can be put in place for a specified area for a period up to two years in order to permit the City to conduct a planning study for the area. During this period the use of the land subject to the Interim Control By-law is limited to that which is specified in the Interim Control By-law, and building permits will not issue for uses permitted prior to the Interim Control By-law. This gives the City time to review the land use options for the area, and adopt Official Plan and/or Zoning By-law amendments to implement the recommendations of the review.

Role of the Province

The key provincial Ministry for planning is the Ministry of Municipal Affairs and Housing. It operates as "one window" for all other provincial Ministries, coordinating comments and responses to municipally-adopted and privately-initiated planning proposals. In addition, the Ministry determines whether a particular proposal is of Provincial interest.

In the absence of a Provincial interest, and in cases where the Minister's approval authority has been delegated (usually to the upper tier municipality), the involvement of the Ministry and Minister in planning applications is minimal. They typically say ‘planning is a municipal function and we have nothing to do with that’. This is true and not true. For example:

1. The Province can change the basic rules, e.g. amend the Planning Act or the City of Toronto Act. The Planning Act requires that all OPs be consistent with the Provincial Policy Statement, 2005.

2. The Province can change the Policy Statement at any time. The Policies in it are typically even more vague and broadly worded than those in Official Plans. But they may be very important in some disputes, e.g. because they define population targets.

3. The Minister can make a zoning order, even over the objection of the municipality. This is rare but possible. An example is the gaming at Woodbine under the control of the native gaming authority for the province.

The Ontario Municipal Board

As detailed below, planning matters may end up at the Ontario Municipal Board (OMB) or in the Courts.[4] The OMB is an independent, adjudicative tribunal that hears appeals and applications on land use disputes. Members are appointed by the Ontario government and may or may not have any background in planning.

The OMB is controversial for many reasons. It can overrule elected municipal councils and substitute its own decisions. In recent years, especially after the Harris government appointees came to power at the OMB, communities often felt that its decisions favoured the developers.[5] Developers are allowed to appeal to the OMB not only from decisions by City Council against their applications but also if the City does not make a decision within 180 days of their application. Also troublesome for community groups is the fact that the OMB is relatively inaccessible. It takes considerable financial, legal and technical resources and expertise to present a case at the OMB – resources which are often beyond the means of community and other public interest groups.

Process

Amendments to the Official Plan & Zoning By-laws

Official Plans, City-initiated Official Plan amendments and Zoning By-law amendments are drafted by the staff of the City’s Planning Department and presented to Council. Landowners may also draft Official Plan and Zoning By-law amendments and apply to the City for approval of these changes. The Planning Act spells out very elaborate procedures for notifying the public of proposed changes and public meetings. Some key points about the process:

• At least one public meeting to discuss proposed changes is required with Notice to those within 120 meters of the site or by a notice published in a newspaper of sufficient circulation;

• This meeting is advisory only to the Planning Department and Council;

• Recent amendments also require disclosure to the public of the content of proposed amendments before the public consultation meeting;

• Subsequent to the Public Meeting, Community Council accepts or rejects the application.

• Public deputations are allowed at Community Council, limited to five minutes. Except in cases of City-wide importance, the general rule is that whatever the local councillor wants gets passed. Then the matter is sent to on the full Council. Usually this is a rubber stamp;

• Any disappointed party (developer or resident or residents’ group) who has participated in the process has 20 days to file a Notice of Appeal to City Council (which entails all necessary documentation and a fee) if it doesn’t like a decision. Filing a written submission to City Council is good enough to keep your foot in the door as a possible party at the OMB;

• If the City does not act on a developer’s proposal within 180 days the developer can take the matter to the OMB on its own motion;

• The OMB hears the appeal based on evidence and based on the criteria of “good planning.” ‘Expert’ evidence is critical in the eyes of the OMB;

• The new rules are designed to ensure that evidence won’t be allowed at the OMB unless it has also been presented to Council. The effect is that expert evidence should be prepared and presented to Council;

• The decision of the OMB can be appealed to the Divisional Court if you can show an error of law, or you can apply to the Chair of the OMB for a rehearing before a different panel of the OMB where you can show an error of fact or law.