Law Times

Law Times • June 23, 2014 Page 11 www.lawtimesnews.com Toronto considering development permit system But alternative to zoning process may be subject to same political roadblocks By Julius MelniTzer For Law Times n a bid to streamline the de- velopment process, Toronto city council is looking to implement a development permit system as an alternative to zoning. 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 [sys- tem] will merely be the same crea- ture 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 of- ficial 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 radi- cal change in how land-use plan- ning and development will be undertaken in the future," says Calvin Lantz of Stikeman Elliott LLP's Toronto office. Cities implement develop- ment permit systems by way of bylaws that deal with standards such as development heights, shadow impacts, use of materi- als, and community benefits. Once a city authorizes such a system, all bylaws passed for that area, including minor variances associated with them, are auto- matically repealed. Also, bylaws authorizing development per- mit systems aren't subject to site- specific zoning amendments or minor variances, although land- owners can apply to vary the designated zoning for an area. Another advantage that some see in development permit sys- tems is the limited appeal pro- cess. 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 f lexibility to accept site-specific development proposals that come forward in the future," says Lantz. "The current zoning struc- ture is outdated and under- zoned and there's been a lot of speculation about ultimate buildable potential which, hope- fully, a DPS will address."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 mov- ing 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 pi- lot 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 with- out 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 every- body'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 offi- cial plan amendment, and then a development permit bylaw which can be done simultaneously or sequentially, and both can be ap- pealed to the OMB," he notes. From all appearances, how- ever, the city seems to be moving along very quickly. At press time, a statutory public meeting was to take place on June 19 and plan- ners were hopeful city council would consider the issue in 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." LT FOCUS This new work is the sister publication to Ontario Municipal Law: A User's Manual by the same authors, designed to provide a comprehensive, easy-to-use resource of municipal law and practice to Toronto-area professionals. 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