Bill 73: Smart Growth For Our Communities Act, 2015

November 9, 2015

in 2015, FoNTRA Advocacy Positions 2012-2019


November 9, 2015
Standing Committee on Social Policy
Hansard Transcript from our presentation to the Standing committee on Social Policy of the Ontario Legislature

RE: Bill 73: Smart Growth For Our Communities Act, 2015

The Federation of North Toronto Residents’ Associations (FoNTRA) is a non-profit, volunteer organization comprised of 31 member organizations. Its members, all residents‟ associations, include at least 170,000 Toronto residents within their boundaries. The 32 residents‟ associations that make up FoNTRA believe that Ontario and Toronto can and should achieve better development. Its central issue is not whether Toronto will grow, but how. FoNTRA believes that sustainable urban regions are characterized by environmental balance, fiscal viability, infrastructure investment and social renewal.

Our comments are in two parts. Part A. provides comments on the Bill from our perspective as an umbrella organization for a number of residents associations working in the City of Toronto. These comments were submitted originally to the Minister of Municipal Affairs and Housing earlier this year. The second part comments on the need for further attention to issues relating to Committees of Adjustment, from the perspective of four umbrella resident groups (FoNTRA, F.U.N., MIRANET and Federation of Citizens Associations of Ottawa), which are members of the current Planning Act Working Group on minor variances. These comments were originally submitted to the Working Group.

FoNTRA supports most of the key planning provisions of Bill 73 but offers below refinements which, it believes, would make the proposed reforms more relevant to its situation. As presently written, these amendments have little applicability in the Toronto context, including the following:

TORONTO‟S OFFICIAL PLAN: Toronto‟s current Official Plan was adopted by City Council in November 2002, approved by the Minister in April 2003, and came into force in July 2006 following partial approval by the Ontario Municipal Board. Between 2006 and 2010, the City amended its brand new Official Plan 120 times. Although Toronto started the mandatory five-year Official Plan review in 2011, it is proceeding in a piecemeal, „thematic‟ fashion with few results four years later: heritage policies (OPA199) came into force this year; partial revised transportation policies (OPA274) are in force; policies related to economic health and employment lands (OPA231) remain under appeal; policies related to neighbourhoods/apartment neighbourhoods/healthy neighbourhoods, the environment, or urban design remain in draft form; and, proposals for other policy areas (e.g. mixed- use areas, regeneration areas, avenues, etc.) have yet to be released to the public. Next year, the Official Plan will reach the 15-year milestone of its 30-year planning horizon – already mutilated by some 300 amendments.
TORONTO‟S ZONING BY-LAW: When the City adopted the new Official Plan in 2002, it promised that a “new comprehensive Zoning By-law will be the key regulatory instrument that implements the Official Plan policies and provides regulations and standards that shape the City’s built form and land use.” More than twelve years later, this new comprehensive zoning by-law to implement the Official Plan does not exist. Instead, the City spent more than ten years harmonizing the existing zoning regulations and adopting them as Zoning By-law 569-2013 while relying on a never-ending stream of site-specific rezonings to accommodate developments. Furthermore, the old zoning by-laws of the six former municipalities have not been repealed. As the City has admitted, the “fundamental flaw with the site-specific rezoning process is that the cumulative impact of redevelopment is difficult to address.”

TORONTO‟S PLANNING PRACTICE: The Municipal Law Section of the Ontario Bar Association, in its August 2004 submission to your Ministry, attempted to put a positive spin on the prevalent planning practice as follows: “Implementation of the new efficiencies of land use will primarily be effected by the actions of private land- owners bringing forward development proposals and requiring necessary amendments to official plans and zoning by-laws.” A member of the Ontario Municipal Board, more aptly, called this “planning by exception.” If an Official Plan isn‟t robust enough to provide for the needs of a 5 or 10 – year planning period, it fulfills no useful function as a guidance tool. Although Toronto‟s Official Plan has been stripped of any measurable targets – on the dubious claim that an Official Plan has to provide „vision‟ and the Zoning By-law „precision‟ – it still needs to be amended an average of 30 times per year. Particularly troubling in this context is the regular use of the Provincial Policy Statement („PPS‟) and the Growth Plan for the Greater Golden Horseshoe („Growth Plan‟) as planning justification for amendments to the Official Plan – notwithstanding its conformity with both the PPS and the Growth Plan.

TORONTO‟S COMMITTEE OF ADJUSTMENT: Many areas of Toronto, including the areas covered by FoNTRA, were developed prior to the enactment of the first comprehensive Zoning By-law in 1953 leaving large numbers of properties in legal non-conforming status and necessitating minor variance applications for almost any physical improvement. Usually more than 3,500 minor variance applications per year are being adjudicated by Toronto‟s Committee of Adjustment of which about 300 are being appealed to the OMB. As a result, the planning department performs only a cursory review of this flood of applications and intervenes with substantive staff reports in rare cases only. Very substantial variances to the Zoning By-law for major developments are routinely approved in the absence of any opponents appearing at the hearing.

Given Toronto‟s inappropriate focus on ad hoc, site-specific development control at the expense of detailed policy planning for areas undergoing growth and change, FoNTRA herewith offers its observations on the key planning reforms proposed in Bill 73 as seen through a specific Toronto lens:

REFORM 1: Conformity of Official Plans with the Growth Plan and PPS
FoNTRA supports the prohibition of appeals to the Official Plan on certain specified matters. However, all aspects of the Growth Plan, not just growth forecasts and settlement boundaries, need to be covered. Today, nine years after the Growth Plan came into force in 2006, only 71% of lower-tier municipalities in the Greater Golden Horseshoe have actually brought their Official Plan into conformity with the Growth Plan and, while all 21 upper and single – tier municipalities have brought their Official Plans into conformity, only 76% are actually in effect or partially in effect. The Province‟s failure to ensure a timely implementation of the Growth Plan has created uncertainty and confusion, regularly exploited by developers who argue that their particular proposal better meets the Growth Plan than the Official Plan which already may be in conformity. FoNTRA recommends that compliance of all Official Plans with Provincial Policies and Plans be required within two years of the coming into force. Once the Province has determined conformity and approved a Plan, related appeals to be defended by municipalities need to be prohibited.

REFORM 2: Global Appeals of new Official Plans
While FoNTRA supports in principle the proposed prohibition of global appeals of new Official Plans, FoNTRA recommends that Bill 73 define what constitutes a „new‟ Official Plan . Toronto has no “new” Official Plan.

REFORM 3: Moratorium on Amendments to new Official Plans by Private Parties
FoNTRA supports the moratorium on amendments to new Official Plans by private parties but recommends that the time period be extended from two years to five years. FoNTRA has long advocated a strengthening of both the planning substance and the planning process, as follows: 1) Official Plans should be required to provide population and density allocations in order to offer intelligent guidance for site-specific re-zonings; and, 2) site-specific amendments to the Official Plan by individuals should be eliminated or curtailed in order to maintain the validity of adopted public policy in between the mandatory comprehensive reviews.

REFORM 4: Specified Content of Official Plans
FoNTRA supports the requirement to make it mandatory for Official Plans to include the description of measures and procedures for informing and obtaining the views of the public in relation to certain planning documents. However, FoNTRA believes that an even stronger need exists to make it mandatory for Official Plans to describe population allocations and development densities, in order to properly plan for infrastructure needs.

REFORM 5: Review Periods for Official Plans
FoNTRA supports the extension of the mandatory review periods for Official Plans from five years to ten years but recommends that this provision apply to all Official Plans, not just „new‟ ones. FoNTRA recommends that the review period be limited to two years in order to prevent piecemeal „thematic‟ reviews, as currently conducted by Toronto, of an Official Plan which had been characterized, as follows: “The Plan is an integrated document. For any individual part to be properly understood, the Plan must be read as a whole.”

REFORM 6: Imposition of Development Permit System
FoNTRA does not support the proposal to authorize the Minister imposing a development permit system on local municipalities or to authorize upper-tier municipalities to adopt by-laws imposing similar requirements on lower-tier municipalities. While FoNTRA recognizes that development control using development permits can offer advantages under certain specific circumstances, Ontario currently lacks the necessary experience gained from a practical application. The few lessons learned from the extremely limited use of a development permit system in Lake of Bays, Carleton Place, Gananoque, and Brampton‟s Main Street North Revitalization area have little relevance to the Toronto situation with almost half a million separate land parcels in need of an effective regulatory framework.

REFORM 7: Operation of Section 37 of the Planning Act
FoNTRA supports the proposal to require any money collected under Section 37 to be kept in a special account and subject to an annual financial statement. However, the use of Section 37 requires additional safeguards. As outlined above, and contrary to the statutory requirements, Toronto maintains obsolete zoning regulations, in part at least, to generate cash by allowing developments that exceed the prescribed height or density. FoNTRA recommends that the Planning Act limit the use of this tool to Zoning By-laws updated to implement the Official Plan and only for physical improvements that directly increase the carrying capacity of the site to be developed. Absent of these additional amendments to the Planning Act, the use of Section 37 still fails to meet fundamental planning principles.

REFORM 8: OMB to „have regard to‟ information and material received prior to appeal
FoNTRA supports the proposal to require the OMB to have regard to written and oral submissions from the public received by the municipal council or approval authority in cases where appeals arise from a failure of a municipal council or approval authority to make a decision within the stipulated time frame.

REFORM 9: Moratorium on Minor Variance Applications
FoNTRA supports the moratorium on minor variance applications following owner-initiated site specific amendments to the Zoning By-law but recommends that the time period be extended from two years to five years. A two-year limitation is unlikely to stop this practice for large and complex projects with a lengthy development process. However, FoNTRA does not support a similar two-year moratorium following the adoption of a comprehensive Zoning By-law. As outlined above, Toronto has a large number of legal non-conforming properties whose pre- zoning development standards have never been captured adequately in any Zoning By-law.

REFORM 10: Operation of the Committee of Adjustment
FoNTRA supports in principle the proposal to add to the existing four tests for minor variances a requirement to consider any prescribed criteria. It is assumed that this provision relates to the stated intent to define the nature of minor variances through regulation. FoNTRA also supports in principle the proposal to require written reasons for Committee decisions as long as this requirement is better defined. Toronto‟s Committee of Adjustment routinely issues written reasons, albeit totally meaningless, since they simply repeat the language of the Planning Act.

In summary, Toronto will not be able to benefit from key planning reforms unless the ten refinements listed above are implemented – perhaps through amendments to the City of Toronto Act.
These comments were originally made in August 2015 to the Ministry of Municipal Affairs and Housing‟s (MMAH) Planning Act Working Group and are from a resident association perspective, which mainly involves working with minor variance applications involving residential land uses. We note that residential lands are by far the predominant land use affected by “minor variances” at the Committee of Adjustment. The comments show that a wide range of changes are needed to make Committees more effective and accessible to residents.

At the present time, the municipal framework for local land use planning decisions in Ontario is laid out in the Official Plan (OP) and Zoning By-laws (ZB), and the municipally appointed Committee of Adjustment (CofA) hears applications for minor variances from the Zoning By-laws. Appeals of CofA decisions may be made to the Ontario Municipal Board (OMB). The City of Toronto has the power (through the City of Toronto Act) to establish its own Local Appeal Body (LAB), which the City has not yet implemented.

Section 45(1) of the Planning Act establishes “four tests” for determination as to whether a variance is deemed to be ”minor”. In the 2005 de Gasparis decision the Divisional Court (Vincent v. DeGasperis, 2005 CanL11 24263 ON S.C.D.C) clarified the four test minor variance process. While most minor variance applications involve more than one variance, each variance needs to satisfy each of the following four tests:

  1. The variance must be minor in nature. (Note that the Court concluded that the Planning Act must be interpreted to mean that a variance can be more than minor for two reasons, namely that it is too large to be considered minor, or that it is too important to be considered minor.)
  2. The variance is desirable for the appropriate development or use of the land.
  3. The variance maintains the general intent and purpose of the Zoning By-law.
  4. The variance maintains the general intent and purpose of the Official Plan.

These four tests are the law and the CofA is required to adhere to the law, as interpreted by the Divisional Court. The Divisional Court clearly stated that it is incumbent on the CofA to consider each of the four requirements and, in its reasons, to set out whatever may reasonably be necessary to demonstrate that it did so. It should be noted that according to the Planning Act as well as the court decision, even when the four tests are met, the CofA retains the discretion as to whether or not to approve the variance.

The CofA is required:
To examine each variance sought to determine whether or not, with respect to both size and importance, which includes impact, it is minor, i.e. minor in size as variance to the ZB specifications, not variance to existing conditions.
To consider and reach an opinion on the desirability of the variance sought for the appropriate development or use of the land, building, or structure – including a consideration of the many factors that can affect the broad public interest as it relates to the development or use – and not what is desirable by applicants.

To examine each variance sought with respect to whether or not it maintains the general intent and purpose of the Official Plan and the Zoning By-law. Several municipalities have adopted language intended to protect existing land uses, such as employment lands from conversion to large format highway commercial, or residential, and to protect streetscapes in mature neighbourhoods, in either their Official Plan (e.g. City of Toronto) or their zoning by-law, (e.g. Ottawa with its “Mature Neighbourhoods By-law”. This is discussed in more detail in the next section.

The CofA process frequently approves variances that far exceed those as of right by the ZB. It is our contention that the CofA process as currently implemented by some municipalities does not adhere to the law, that the four tests are not upheld, and that the process is regularly abused by minor variance applicants. For example, developers frequently indicate that they need the extra density or FSI to justify buying an older home, tearing it down and replacing it, which is not a valid planning reason. In particular, economic reasons (“I need the extra floor space to make this project viable”,” I have a growing family”) and precedence (“there is a similar variance just down the road”) should not be considered valid reasons.

There is also a common belief that if the application is refused, it will be appealed to the OMB, which will then approve it. This is not necessarily the case, that CofA decisions to reject variances are overturned by the OMB – there are cases where variances were refused by the CofA, appealed to the OMB which after hearing the evidence made the same decision as the CofA, for example, 73 Donegall Drive, PL140158, decision dated June 26, 2014. However, there is no question that the imbalance of resources at the OMB, even if the municipality is a party, can have an impact. The City of Toronto‟s move to establish its own Local Appeal Body in place of the OMB for minor variances is driven by this concern. Overall, the CofA is an expensive, time consuming process with many applications being approved, frequently with variances that under any definition cannot be considered “minor” in nature. It sometimes appears as if the CofA has a preference (even a “bias”) for approving ZB variances, despite the four tests. In view of the concerns raised in this report the following question arises: should consideration be given to abolishing the Committee of Adjustment, an appointed body, non-accountable to the public, and the functions delegated to staff?

Issues and Recommendations
1. The four tests
We support the four tests as being a sound foundation for decision-making. In our view the main issue is not the tests themselves, but the inadequate and inappropriate application of the tests by committees of adjustment. However, it has been argued for several years that while they are an appropriate foundation, the language of the four tests is not sufficiently clear and additional language is required. This view has been expressed by FoNTRA and CORRA in its 2006 Submission to the Minister of Municipal Affairs and Housing, and by MIRANET to the City‟s Planning and Development Committee. While these language improvements may be less likely to have utility in the routinized hearings of the CofA than in the somewhat more deliberative work of the OMB (and that of the City of Toronto‟s future LAB) but on balance we feel that there would be benefits in introducing additional clarity of language.
Therefore we recommend that:
1. The “four tests” in Section 45(1) of the Planning Act (as affirmed by the De Gasperis decision in 2003) should remain as the foundation for legislated tests for minor variance.
2. The Ontario Government should consider amending Section 45(1) with revised language for clarity as recommended in the 2006 CORRA/FoNTRA submission to the Ontario government:
“The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by- law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, grant a variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, provided that the variance application meets each of the following tests:
1) it is minor in size, nature, importance and impact;
2) it is desirable for the appropriate development or use of the land, building or structure in relation to the broad public and planning interest;
3) upon analysis, the general intent and purpose of the by-law are found to be maintained; and
4) the variance conforms with any official plan in effect on the date of application.
For greater certainty, where the four tests are met, the committee retains residual discretion as to whether or not to approve the variance.”
2. Protecting Neighbourhood “Character” (or “does it fit”?)
The unfortunate result of this poor application of the tests for minor variances by the CofA process in residential areas is the gradual erosion of the character of stable neighbourhoods, affecting the “rhythm” of the street, often with tall or monster houses on tiny lots, and the intrusion of integrated garages where they were not characteristic. In addition , it appears that the increased incidence of demolition, rather than merely renovation of existing structures (which is not addressed in the Planning Act at all), are also partly responsible for much of the erosion, which has accelerated in recent years.

The Provincial Policy Statement (PPS), which provides overall provincial direction for land use planning, is often interpreted as being “pro-intensification”. However, a recent OMB decision (OMB Case number PL140260 By-law No. D02-02-13400070) dated Feb 20, 2015 provides the following definition of “character”: “At a basic level, the Board concludes that it refers to prominent visual patterns in the streetscape: “It is fashionable to presume that intensification takes priority over all other planning principles. As important as intensification may be, it does not operate to the exclusion of other stated policies, including the Provincial Policy Statement (PPS) policy ”encouraging a sense of place, by promoting well-designed built form and by conserving features that help define character”.…. The PPS emphasizes “the need to read the PPS as a whole”.

As such the term “intensification” needs to be reconciled with Official Plan policies which promote and encourage protection of neighbourhood character. Section 34(1) 4 of the Planning Act allows that municipalities may enact by-laws for regulating the type of construction, and the heights, bulk, location, size, floor area, spacing, character and use of buildings or structures. The same OMB decision states that: “It is in the Board‟s mandate to make findings about “fit” if the OP so instructs.” Indeed, typically, municipalities such as the Cities of Toronto and Mississauga, do have such policies in their OP.

The City of Toronto Official Plan includes the following relevant policies:
Land use designations are among the Official Plan’s key implementation tools for achieving the growth strategy set out in Chapter Two – to direct major growth to some parts of the City and away from others. …
4.4 Designations that Reinforce Existing Physical Character
Four land use designations shown on the Plan’s land use maps, Neighbourhoods, Apartment Neighbourhoods, Parks and Open Space Areas, and Utility Corridors, will help to protect and reinforce the existing character of these areas. …
4.6 Designations for Growth
Four land use designations distribute most of the increased jobs and population anticipated by the Plan’s growth strategy: Mixed Use Areas, Employment Areas, Regeneration Areas and Institutional Areas. …”
And with respect to areas designated as Neighbourhoods the City of Toronto Official Plan expects the existing character to be preserved, and includes the following policies: (Healthy Neighbourhoods):
“Neighbourhoods and Apartment Neighbourhoods are considered to be physically stable areas. Development within Neighbourhoods and Apartment Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas.”
4.1.5 (Neighbourhoods):
“Development in established Neighbourhoods will respect and reinforce the existing physical character of the neighbourhood, including in particular:
a) patterns of streets, blocks and lanes, parks and public building sites;
b) size and configuration of lots;
c) heights, massing, scale and dwelling type of nearby residential properties;
d) prevailing building type(s);
e) setbacks of buildings from the street or streets;
f) prevailing patterns of rear and side yard setbacks and landscaped open space;
g) continuation of special landscape or built-form features that contribute to the unique physical character of the neighbourhood; and
h) conversion of heritage buildings, structures and landscapes.”
“No changes will be made through rezoning, minor variance, consent or other public action that are out of keeping with the physical character of the neighbourhood”.
The City of Mississauga Official Plan, introduced in July 2014, includes reference to (Distinct Communities, Diverse Character)
“A distinct identity will be maintained for each Character Area by encouraging common design themes and compatibility in scale and character of the built environment”.

9.2.2 (Non-Intensification Areas) “While new development need not mirror existing development, new development in Neighbourhoods will:
a. respect existing lotting patterns;
b. respect the continuity of front, rear and side yard setbacks;
c. respect the scale and character of the surrounding area.
d. minimize overshadowing and overlook on adjacent neighbours;
e. incorporate stormwater best management practices
f. preserve mature high quality trees and ensure replacement of the tree canopy; and
g. be designed to respect the existing scale, massing, character and grades of the surrounding area”.
The City of Ottawa “Mature Neighbourhoods By-law” has recently come into effect to provide controls on intensification in low-rise residential neighbourhoods within the pre-amalgamation City of Ottawa boundaries. The approach taken and proven through a recent OMB decision (OMB Case number PL120666 By-law No.2012-147, dated May 26, 2015) establishes principal elements of street character, and then requires a local (21 houses surrounding and including the subject property) analysis of the principal elements to establish a broad baseline for building character with regard to the impact of that building on the views from the street. A system is developed to identify specific character elements, and require development to proceed in accordance with demonstrable existing patterns.

From surveys of all the mature neighbourhoods, four performance groups have been identified in increasing levels of severity of street impact. A “dominant pattern” is identified from the four “Character Groups” as the pattern with the largest plurality across the 21 properties. A property owner planning a renovation is obliged to either conform to the dominant pattern, or may design using any of the remaining patterns having lesser street impact. Details of the process and character elements are provided in an appendix to this report.

The Ottawa Mature Neighbourhoods By-law provides a ground-breaking demonstration of a new and progressive direction for neighbourhoods. There are other tools available to municipalities to protect areas of character such as creating Heritage Conservation Districts under section V of the Ontario Heritage Act. And the Development Permit System, in that it requires a pre-planning process to establish the defined area‟s status and future goals, may assist also. Currently, municipalities and their residents are not well-informed about these opportunities.

Therefore we recommend that:
3. The MMAH should emphasize to municipalities (having identified areas where protection of neighbourhood character is a priority) their obligation to have in place strong OP policies for neighbourhoods that speak to the importance of preservation of “neighbourhood character”
4. The MMAH should research, evaluate and provides guidance, training and support (i.e. guidelines) to municipalities in methodologies for determination of neighbourhood character, such as streetscape analysis methodology, and incorporation of the methodology in neighbourhood by-laws.

3. Municipal support to the CofA
Municipalities are responsible for operating the CofA system (apart from appeals, which are to the OMB) and it is unsurprising that there are a number of issues regarding the functioning of the CofA and the resources allocated to it. In the hierarchy of planners‟ attention, Neighbourhoods tend to take a back seat to City centres (downtowns), commercial avenues, and industrial areas. Staff reports tend to be written on only a small percentage of applications, and the planning resources applied to the CofA tend to be the most junior. And resources are sparse for defending CofA decisions (and the integrity of the ZB) in case of an appeal of a CofA decision to the OMB. For instance, in both Toronto and Mississauaga, City Council must approve the City resources (legal and planning staff) to be assigned to a case at the OMB and it is not a given that this will be granted; councillors sometimes resist supporting this, arguing on economy grounds. If neighbourhood character is to be truly considered in the CofA decision, there need to be staff reports on the application that takes this into account. As noted above, the province can help in this by the provision of guidelines and training. Finally, given the resourcing issues faced by municipalities, as discussed above, it may be helpful to implement a benchmarking program for CofA operations similar to that in place for other municipal functions, in order to increase efficiency and effectiveness.
Therefore we recommend that:
5. The MMAH should encourage municipalities:
a. to direct their CofAs to rigorously apply the “four tests” of the Planning Act for all minor variances.
b. to ensure that they are prepared to defend and uphold their OP and ZBs at the CofA and the OMB.
c. to ensure that sufficient properly qualified staff are assigned to support the CofA
so that all applications are properly reviewed
d. to properly advise applicants about the Planning Act requirements with respect to minor variances.
e. to ensure that all appointed CofA members are qualified and properly trained.
6. That MMAH should consider developing and implementing a benchmarking program for CofA operations involving municipalities across the province.

Cathie MacdonaldGeoff Kettel
Co-Chair, FoNTRACo-Chair, FoNTRA
57 Duggan Avenue129 Hanna Road
Toronto, OntarioToronto, Ontario
M4V 1Y1M4G 3N6

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