Planning Act Sec 37

Two board members of the DCA went to Toronto with Councilor Holmes and others to learn more about Sec 37 of the planning act. Here is the report from Catherine Boucher:


Report to DCA by C. Boucher
February 2, 2011

The City is in the process of reviewing the Secondary Plan for Centretown as it relates to the Mid-Centretown area (Kent to Elgin, Gloucester to Q’way) .

The CDP is expected to be submitted to City Council along with a revised Secondary Plan (The Centretown Plan) and accompanying zoning. Part of the work of the PCG is to look at Section 37 of the Planning Act to see whether we want to insert Community Benefits into a revised Secondary Plan for Centretown.

Section 37 of the Planning Act provides a tool for municipalities to extract benefits from developers when they apply for changes in zoning, or increases in height or density from what is permitted under existing zoning

The City has adopted into its Official Plan (OP) the following commitment to implement the Section 37 provisions:

Increase in Height and Density By-law (Section 5.2.1)

8. Pursuant to Section 37 of the Planning Act, the City may authorize increases in the height and density of development above the levels otherwise permitted by the zoning by-law. Public consultation will be included in the development and approval of such a by-law. Limited increases will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law. Such provisions that may be authorized include, but are not limited to:

a. Public cultural facilities;

b. Building design and public art;

c. Conservation of heritage resources;

d. Conservation/replacement of rental housing;

e. Provision of new affordable housing units; land for affordable housing, or, at the discretion of the owner, cash-in-lieu of affordable housing units or land; [Amendment 10, August 25, 2004]

f. Child care facilities;

g. Improvements to rapid-transit stations;

h. Other local improvements identified in community design plans, community improvement plans, capital budgets, or other implementation plans or studies;

i. Artist live-work studios.

Despite this Section, the City has not negotiated community benefits when reviewing application requesting additional height or density.

The current situation in Centretown (and elsewhere) is that developers are asking for and receiving significant height and density increases. This situation is particularly accelerated now as the City is planning to re-introduce Development Charges (DCs) in the downtown area in late summer of 2011. There has been a “moratorium” on DCs for a number of years, with the intent of encouraging residential development downtown (especially parking lots and other vacant lands).

In part because the Secondary Plan (Centretown Plan) is now over 30 years old, the developers have been able to convince the Ontario Municipal Board (OMB) that it does not reflect the current OP direction with respect to intensification. Of the 25 OMB appeals in the last 10 years, the developers have “won” 19 of their appeals. So the Planning (and Legal) Departments are reluctant to hold the line on height/density, fearing another loss at the OMB.

Because of the demand from developers to build higher and bigger, it seemed appropriate for the community to look more closely at Section 37 and see if this tool would help mitigate some of the concerns raised around such applications.

In order to better inform ourselves, two of the community representatives (myself and Charles Akben-Marchand from CCCA/DCA) went to Toronto this week, along with Councilors Holmes and Hume and City staff to meet with their Planning staff. We were accompanied by two of the consultants from Urban Strategies who are the lead consultants on the Mid-Cttown Plan.

I was not able to participate in the earlier portion of the day, but others were taken around downtown Toronto and shown some examples of developments where Section 37 was used to provide additional benefits to the area. We all met with Peter Langdon, who is the person in charge of the Section 37 negotiations for the City of Toronto. He gave us a very informative presentation and Q&A session.

Here are some the highlights of the presentation:

• Toronto has been negotiating Section 37 benefits since January 1998. Latest policy was modified in November 2006 and approved by the OMB

• There have been 356 Section 37 agreements, including 195M in cash benefits

• The agreements are registered on title.

• The city has a 35+ page Guideline and Protocol document outlining the various pieces of this tool.

• There have been numerous OMB appeals of the developments, some of them where the developer has appealed the Section 37 benefits. The decisions on these have varied quite a bit, with some OMB adjudicators having obvious biases against the Section and refusing to allow any benefits.

• The Planning Act only states that the Official Plan must include a policy to allow the City to negotiate under Section 37 .

• Toronto’s experience is: “The more specific your community plan and its list of benefits, the better”.

• Developments must represent good planning. “Section 37 is not a density bonus”.

• Generally used for development of > 10,000 m2 or “significant” height increase.

• Community benefits do not replace DCs or Park levies, benefits must be in addition to those.

• Priority for on-site or local benefits.

• Must bear a “reasonable planning relationship” to the increase in height/density.

• Good architecture/design not an eligible benefit.

• City may forego/reduce benefits where zoning outdated.

• Secondary plan or specific OP policies prevail.

• Typical benefits: Heritage conservation, Child care facilities, Public art, Non profit arts/cultural facilities, park land, park improvements, recreational facilities, school playgrounds, streetscape improvements not abutting site, replacing or preserving rental housing, land for affordable housing, transit improvements, reforestation.

• Quantum (formula) is for defined areas, not city-wide. Earlier version of their policy used C-W formula and was determined to be “like a tax” and not legal.

• Formula determined on a case by case basis, but typically tied to a percentage of the “land lift”.

• Calculations provided by City Real Estate division.

• Formula approach is permitted in secondary or area plans.

• Ward Councillor consulted prior to discussion with applicants.

• Councillor and staff coordinate community consultation.

• Planning staff coordinate negotiations, provide report to Council.

Some of the Section 37 Community benefits have included such items as:

 $225K for improvements to a local Seniors Centre

 207 sq.m of parkland conveyed to the City

 retaining existing rental units for 20 years

 150K for schoolyard refit

 400K for improvements to a local walking trail

 200K for public art

 provision of 105 housing units for seniors

 1.05M for a new community centre, trails and improvements to a Go Train station

 providing 81 rental units on site for at least 15 years

Next steps:

Councillor Holmes and staff met with RPAM and they will provide information this week on a formula for determining value of increased height/density.

Councillor Holmes and Hume are hoping to meet with Mayor to get the Mayor’s support for this direction.

CCCA will meet to discuss the use of Section 37 and possibility of getting a list of desired community benefits into the Secondary Plan.