Law Times

Law Times • June 29, 2015 Page 9 www.lawtimesnews.com Residents, developers challenging Toronto's development permit system BY GLENN KAUTH Law Times he City of Toronto's move to- wards a development permit system has hit a number of roadblocks with opposition coming from landowners, developers, and resident groups. The city is facing appeals by 13 different parties to the Ontario Municipal Board of last year's official plan amendment No. 258 that sets a framework for a develop- ment permit system across Toronto. The Swansea Area Ratepayers Associa- tion believes "that the amendment is pre- mature, lacks specificity, includes neigh- bourhoods that should not be subject to growth, and fails to set criteria for public consultation," the organization said in its reasons for its appeal to the board. "In general, it is not appropriate for Swansea or Bloor West Village." Besides the five resident groups that have appealed, eight appellants representing landowners or developers have challenged the bylaw. They include the Building Indus- try and Land Development Association. Katarzyna Sliwa, a partner at Davies Howe Partners LLP who's representing that asso- ciation in the appeal, says developers aren't against the idea of a development permit system. "The development industry is sup- portive of a development permit system in Toronto," she says, noting the hope is it will streamline the process. Provincial legislation that has been in place for several years allows municipali- ties to use development permit systems as a means of implementing official plan policies through the prescription of devel- opment standards and criteria for an area in keeping with localized desires and expecta- tions. Cities implement development permit systems by way of by- laws that deal with stan- dards such as develop- ment heights, shadow impacts, use of mate- rials, and community benefits. Once a city au- thorizes such a system, it automatically repeals all bylaws passed for that area, including minor variances asso- ciated with them. While landowners can apply to vary the provisions for an area, doing so would generally be more diffi- cult. Such systems also provide for a limited appeal process. Third parties can't appeal the issuance of a development permit to the board and only the applicant can challenge a refusal or a condition at- tached to it. Moving to a development permit sys- tem involves a two-stage implementation process. A municipality must first amend its official plan to identify the areas the permit system will apply to and then enact a bylaw for each of them. Moving to a de- velopment permit system has the poten- tial to expedite matters, says Sliwa, noting the 45-day timeline provided under the Planning Act for municipalities to decide on a permit application. Sliwa, however, notes there are several con- cerns about the City of Toronto's approach to a development permit system. While three Ontario municipalities that have such systems in place allow for sig- nificant variations from the standards set out in their bylaws, Toronto has indicated it's look- ing to have hard maxi- mums and minimums, she notes. Calvin Lantz, a part- ner at Stikeman Elliott LLP who's representing several of the de- velopers and landowners that are appeal- ing the Toronto official plan amendment at the board, expresses a similar concern. "The word variation does not appear in the present official plan policy," he says, calling it "troubling" that the city hasn't indicated there would be something akin to a provision for minor variances. While the idea of a development per- mit system is to create greater certainty, Lantz says some leeway for variation is important given that the initial process of coming up with a bylaw may not account for all of the issues that can arise when someone actually moves forward with a development application. An additional concern, according to Sliwa, is the extent of public consultation that would take place when someone ap- plies for a permit under a development permit system bylaw. While the general idea of a development permit system is to concentrate public consultations at the initial stages of coming up with the bylaw, there are questions about whether Toron- to would still allow for them later on. "It's a concern of the development industry and it's a concern of residents," she says, not- ing further consultations at later stages go against the idea of streamlining the process while resident groups worry that, unlike developers, they couldn't appeal a decision they didn't like to the board. "It would change our concept of what an as-of-right development is," says Lantz of the idea of further consultations. Other issues include the uncertainty around the details of the new system. "We have not seen a draft of a bylaw," says Sliwa. At the same time, both Sliwa and Lantz note there have been strong suggestions To- ronto should launch its development per- mit system on a smaller scale rather than, as it has indicated would be the case, applying it to the entire city. "Toronto is implement- ing this on a really big scale," says Sliwa. In fact, there were suggestions Toronto would start with a pilot project in a partic- ular part of the city as discussions about a new system heated up last year, an option Sliwa favours. "I do support the pilot proj- ect idea," she says. "The consequences are significant," says Lantz, who agrees a trial may be a better option. The 13 appeals are at the early stages with the next prehearing scheduled for Nov. 3. The case comes as another major planning effort in Toronto, the harmo- nized zoning bylaw, is also subject to an ongoing appeal. LT FOCUS New Edition Drug Offences in Canada, Fourth Edition Bruce A. MacFarlane, Q.C., Robert J. Frater, Q.C., and Croft Michaelson, Q.C. With substantial assistance provided by Chantal Proulx of the Ontario Bar CANADA LAW BOOK ® More than just "drug law", Drug Offences in Canada, Fourth Edition offers expert analysis of all the complex legal and strategic issues arising from drug cases. 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