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Focus: Toronto considering development permit system

But alternative to zoning process may be subject to same political roadblocks
|Written By Julius Melnitzer

In a bid to streamline the development process, Toronto city council is looking to implement a development permit system as an alternative to zoning.

The reviews of development permit systems tried so far have been mixed, says Calvin Lantz.

Some observers, however, are skeptical of the plan’s efficacy.

“If the [development permit system] process becomes subject to the same political push and pull as the present system, and if stakeholders are forced to go to the [Ontario Municipal Board] as often as in the past, then the [system] will merely be the same creature dressed in different clothes,” says Jeffrey Davies of Toronto’s Davies Howe Partners LLP.

Provincial legislation enacted in 1996 allows municipalities to use development permit systems as a means of implementing official plan policies through the prescription of development standards and criteria for an area in keeping with localized desires and expectations. “The proposed use of the DPS represents a radical change in how land-use planning and development will be undertaken in the future,” says Calvin Lantz of Stikeman Elliott LLP’s Toronto office.

Cities implement development permit systems by way of bylaws that deal with standards such as development heights, shadow impacts, use of materials, and community benefits. Once a city authorizes such a system, all bylaws passed for that area, including minor variances associated with them, are automatically repealed. While bylaws authorizing development permit systems are subject to site-specific zoning amendments and minor variances and landowners can apply to vary the designated zoning for an area, doing so would be more difficult.

Another advantage that some see in development permit systems is the limited appeal process. Third parties can’t appeal the issuance of a development permit to the OMB and only the applicant can challenge a refusal or a condition attached to it.

“Using a DPS provides greater certainty about how an area will develop over time by limiting the flexibility to accept site-specific development proposals that come forward in the future,” says Lantz.

“The current zoning structure is outdated and under-zoned and there’s been a lot of speculation about ultimate buildable potential which, hopefully, a DPS will address.”

But Lantz concedes that once the system is in place, it will be more difficult for developers to depart from the bylaw’s standards.

“It’s certainly not going to be business as usual,” he says.

“Things will be a little different and a little more challenging, but there will also be opportunities for as-of-right development.”

As it turns out, the cottage community of Lake of Bays in Northern Ontario has tried a development permit system as have other smaller communities in the province. “The reviews are mixed,” says Lantz.

“But I don’t think the issue is with the concept of a DPS but with its implementation.”

Indeed, Lantz has concerns about Toronto’s approach to implementation.

“Toronto is talking about moving forward by way of pilot project at the same time that the city is proceeding with an official plan amendment to implement a DPS on a city-wide basis,” he notes.

“That seems inconsistent, and it’s difficult to understand why the city is moving forward so rapidly with what it is calling, but doesn’t actually appear to be, a pilot project.”

Moving more gradually, Lantz believes, reduces the risk that the OMB will have to deal with a bylaw for a development permit system before any development applications are on the table.

“Real challenges arise any time you have an OMB hearing without actual development,” he says.

However that may be, Davies worries the implementation of a development permit system will be subject to the same political forces as the zoning process.

“A DPS still requires that the city does a plan for the area and that plan has to be very specific on what it allows and doesn’t allow,” he says. “The city is proposing to embark on a visioning exercise, but that will ultimately go back to the root problem because everybody’s vision is different.”

Davies also wonders about the length of time it will take to implement the new system.

“Unfortunately, it could take at least two years to implement the DPS, which requires an official plan amendment, and then a development permit bylaw which can be done simultaneously or sequentially, and both can be appealed to the OMB,” he notes.

From all appearances, however, the city seems to be moving along very quickly. Last week, city council decided it would consider the issue in early July.

“The timing is dependent on the outcome of the meeting,” says Lantz.

For his part, Davies cautions proponents of a development permit system not to set their expectations too high.

“The city has pinpointed an area in Etobicoke as the first place where the DPS will be tried,” he says.

“But that area has been in desperate need of planning and renewal for at least 25 years and it might be illusionary to think that putting in a DPS will rejuvenate it. Still, kudos for trying.”

Editor's note: Article changed June 25 to correct error about zoning amendments.

  • Jessica Wilson
    One important claim in this excellent article is incorrect---namely, the claim that "bylaws authorizing development permit systems aren’t subject to site-specific zoning amendments". As top planning lawyers (including Lentz and Dennis Wood of Wood Bull LLP) have confirmed, the Planning Act permits site-specific appeals of DPS by-laws. Relatedly, though Chief Planner Jennifer Keesmaat has claimed that Toronto's implementation of the DPS "does not allow site-specific appeals", this is incorrect: what Toronto's draft Official Plan Policies do is make it harder to apply to amend a DPS by-law on a site-specific basis (e.g., by conducting certain area studies, providing an area-based planning rationale, etc.---not too different, in fact, from what is already required to amend area-specific Official Plan Amendments). Toronto's DPS policies do not, and thanks to the Planning Act, cannot, "disallow" or "forbid" site-specific amendment applications---they can only make these a bit harder.

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