Myths and Facts About the Development Permit System

Change is hard. Even when we don’t like the way things are, we sometimes resist change. I recall a community meeting years ago, when as a consultant team we approached a community regarding a proposal to develop a site – a weedy, graffiti filled parking lot known for untoward behavior, that had been the source of community complaints for many years. One resident stood up and said to the crowd: “I like things just the way they are.” This wasn’t the dominant view in the room, but it was a view nonetheless. ‘Just keep things the same’ is sometimes a default position rooted in fear of change.

This is why our planning approach needs to focus on building trust with communities affected by change. But it’s hard to build trust when our planning system is broken – when outcomes are unpredictable, when decisions appear to be inconsistent, or disconnected from the larger impacts they will have on a community. (Yes, I am alluding to the OMB, and the way it ties our hands at times.)

Now, I do know, as a result of conversations with my colleagues in cities around the world, that there are many good things about our regulatory framework and planning approach. Just take a look at our 2013 Urban Design Award winners to get a feel for some of the excellence in city building taking place in Toronto. Nearly all of these projects were the outcome of a collaborative, negotiated approvals process – and that process, in these instances, worked.

But these projects are the exception, as opposed to the norm. We need more consistency in the quality of the public realm, more predictability as to how neighbourhoods will evolve (as opposed to focusing only on sites, in reaction to development proposals), better ways to ensure infrastructure needs – such as schools, transit, daycare spaces, health clinics – are linked to a long-term vision and the build-out of rapidly changing areas in the city.

We need better tools to add to the suite of tools we already use – such as Secondary Plans, Avenue Studies, and Tall and Midrise Building Guidelines – to ensure our proactive, vision-based community planning becomes regulatory.

Enter the Development Permit System. It is just one more tool in our regulatory tool kit intended to assist us as we collectively seek to plan great places. And it is a tool to be used in communities where residents and the area councilor want to use it. It won’t be required anywhere, although it will be available as an option everywhere. As well, different Development Permit Bylaws will have differing levels of detail – not unlike Heritage Conservation District Plans.

It’s a superior tool which allows us to combine and customize existing planning tools (zoning, site planning, and/or minor variances) into one comprehensive as-of-right regulatory framework which provides both predictability (with set development parameters) and flexibility (set variation within these parameters).

On an area by area basis, this approach will provide more clarity for communities in terms of the new development they can expect, but it also allows us, in various City departments, to link together infrastructure needs and improvements to new development in a way that was not possible before. (It is impossible to address larger infrastructure needs when planning on a site-by-site basis. Area-based planning is required.)

This new planning system also enables us to identify and prioritize community improvements (that have previously been secured through Section 37 agreements) and to entrench them on an area wide basis, in a transparent regulatory framework. This is in contrast to the current, and highly criticized approach, that involves negotiating on a site-by-site basis for community improvements – what has been called at times, “let’s make a deal planning.” It’s a more proactive, collaborative and community-based approach to determining which improvements form the building blocks for a vibrant strong community.

All of this is new. It is a significant and potentially transformational change. As a result, many of the same people in the city who have been calling for change for many years, are now suggesting that we should ‘just keep things the same.’

The Development Permit System is a critical step forward. In City Planning, we’ve prepared the following Fact/Myth sheet to respond to some outright ‘myths’ we’ve heard about this new planning system.

We hope you’ll take a moment to take a look – because some things need to change, including some aspects of our planning process.

MYTH #1. If Toronto’s currently adopted DPS OPA is approved, the City will impose the DPS across the entire city.

FACT:

The purpose of OPA 258 is to provide enabling authorization for the application of a DPS anywhere in the City. This is a Planning Act requirement. The Act requires that an Official Plan incorporate policies setting out the regulatory requirements for a DPS, including the goals, objectives and scope of the delegated authority for issuing development permits. The types of criteria and conditions that may be included in any development permit by-law must also be set out in policies of the Official Plan.

The OPA makes it clear that Toronto’s DPS will only be implemented on an area-by-area basis. Permitted uses and development standards will be tailored to suit the needs and opportunities specific to each area.

MYTH #2. DPS By-law boundaries will be selected by City staff without community or stakeholder consultation and the OPA 258 does not provide communities with ongoing opportunities to be part of the DPS By-law approval process.

FACT:

There are a number of steps that need to be undertaken prior to any area being chosen to become part of a DPS By-law. Each step involves community consultation as follows:

  1. Nominate an area to be considered for a DPS By-law.
  2. Hold a community meeting in the affected area to discuss reasons for the nomination and to elicit community, including landowner, feedback.
  3. Report to Community Council and City Council for authority to proceed with a community visioning exercise, area-based analysis and consultation.
  4. If authority is given to proceed, turn the completed community vision into a draft DPS By-law and update Official Plan policies for the area (if necessary).
  5. Hold community meetings to consider the draft DPS By-law which culminate in a statutory open house, followed by a statutory meeting before Community Council as part of step 6 below.
  6. Report to Community Council and Council about the draft DPS By-law and the outcomes of community consultation and seek Council adoption of the DPS By-law.
  7. Pursue next steps further to the outcomes of the statutory 20 day appeal period for the DPS By-law.

MYTH #3. OPA 258 does not provide enough clarity around the proposed stakeholder and community visioning exercise. It is not clear who determines the scope of the exercise and who determines that it has been completed to all the visioning partners’ satisfaction.

FACT:

The community visioning exercise is a key front-end component of Toronto’s DPS process. It is intended to be consensus driven and collaborative. In order for visioning to be effective and meaningful for all, City Planning intends to prepare a DPS Community Visioning Handbook which lays out a city-wide framework and steps to follow for achieving successful area based visioning outcomes that can lead to area based DPS By-laws. Matters to be addressed via the handbook will include ways of identifying who should be at the table; options for designing the visioning process (level of facilitation, use of focus groups, etc); markers to help set the visioning timetable; staffing options; participant recruitment, engagement and/or communication strategies; ways of identifying key performance areas; content for action plans; triggers to identify final consensus; identifying a plan to move towards by-law implementation (such as a community based implementation committee); protocols for monitoring and tracking community vision outcomes.

A summary of visioning exercise outcomes and the community’s vision statement itself will be forwarded to Community Council and Council for deputations and approval, as part of the over-all approval process leading towards the establishment of the area based DPS By-law.

MYTH #4. Existing in-force Official Plan and Secondary Plan policies governing an area are set aside and everything starts back at square one, once a Development Permit By-law has been approved for an area.

FACT:

DPS By-laws have a statutory requirement to conform to the Official Plan. The DPS visioning process takes its initial cues from the City’s Official Plan, Secondary Plan and/or Site and Areas Specific policies applying to the area under consideration for a DPS. If visioning exercise outcomes identify the need for an Official Plan amendment, these can be informed by and be undertaken concurrently with the visioning exercise that leads towards the establishment and Council adoption of the area wide DPS By-law.

If the proposed DPS area has up-to-date zoning in place, these zoning provisions will be used as the springboard for discussing a vision for the area.

MYTH #5. Once a DPS By-law is approved for an area, it replaces the in-force zoning by-law and landowners automatically lose their as-of-right development rights.

FACT:

For the area subject to the preparation of a Development Permit By-law, the By-law would replace the Zoning By-law on the day the Development Permit By-law comes into force. One of the core considerations in the visioning and public consultation process, and in preparing a Development Permit By-law, would be the consideration of pre-existing development rights as expressed by land use permissions and building and lot standards found in the Zoning By-law that the Development Permit By-law would be replacing.

MYTH #6. Once a Development Permit By-law is in place – there is no further opportunity to amend the By-law on a site specific basis.

FACT:

The opportunity remains to amend the DPS By-law only in-so-far as it may affect a specific site. However, what is fundamentally different with regards to the DPS being introduced through OPA 258, is that such an amendment can only be considered in the context of all lands within the area subject to the By-law. A City or privately initiated application to amend development standards, criteria or conditions in a Development Permit By-law must be supported by a comprehensive planning rationale. This must occur within the context of the entire subject area and include area studies and information; a public engagement and consultation strategy involving the City and the community affected by the Development Permit By-law area; and a demonstration of the changes to the subject area that have occurred since the enactment of the Development Permit By-law.

MYTH #7. Toronto’s DPS does not provide the public with opportunities to voice their opinions and concerns with regard to individual Development Permit Applications, once the corresponding Development Permit By-law for a given DPS area is in place.

FACT:

OPA 258 provides that any area based DPS By-law will establish the method of public consultation and the means by which Council will engage with the public on individual Development Permit Applications within the area. The proposed method and extent of public notification can form part of the community visioning exercise or it can come directly from Council. In either case, OPA 258 states that at a minimum, the method and manner of public notification will be as effective as that which is currently available for zoning and minor variance applications. It is ultimately up to Council to determine whether the proposed method of public consultation is “effective” within a particular area. Minimum standards for public consultation relating to different types of Development Permit Applications (complex or non-complex for instance), could be identified by staff to assist communities and Council to assess the efficacy of any proposed area based public consultation methods. Examples of public notification and methods for conferring with the public prior to issuance of Development Permits could include the posting of on-site application notices; community information meetings; requests for “bumped-up” reports to Community Council; or Council to approve the application.

MYTH #8. Approval of DPS By-laws and Development Applications do not allow for third party appeals. OPA 258, in general, provides for fewer opportunities of appeal.

FACT:

The opportunities for appeal relate to what is currently in place for Zoning By-laws, Zoning By-law amendments and site plans. The DPS framework as established by the Planning Act permits any person or public body to file an appeal on the vision, criteria, and standards established in a Development Permit By-law. However, once established and in place, if a property owner wants to amend the Development Permit By-law, the public can appeal the approval or refusal by Council, of the Development Permit By-law amendment.

Appeals of applications to amend a Development Permit By-law should be differentiated from appeals of Development Permit Applications. Once a Development Permit By-law is in place, the public is able to determine what can and cannot be built and what standards apply. This is no different than the current planning framework where an application meets all the zoning standards and all that needs approval is the site plan application. As with the site plan approval process set out in the Planning Act and City of Toronto Act, there are no third party appeals of the approval or refusal of a site-plan application. In a DPS area, if approval is given on a Development Permit Application, there can be no third party appeals. However, if there is a refusal and an applicant appeals the refusal, the public can become parties to the appeal of the refusal.

MYTH #9. The voluntary provision of community benefits in exchange for additional height and density within DPS areas allows for heights or densities that exceed the maximums stated in the Development Permit By-law.

FACT:

Community benefits or cash contributions are to be proportionate to, and in exchange for, a specified height or density. The DPS creates certainty when managing new growth, because all parties know in advance what conditions of approval to expect when applying for Development Permits. The provision of community benefits or contributions are tied to particular heights and densities established in the Development Permit By-law. Each DP By-law contains height and density maximums, which cannot be exceeded, as is not the case with the use of Section 37. The Development Permit By-law may establish a minimum size of development for the purposes of requiring community benefits or cash contributions.

The community benefits themselves include the same matters as currently listed in the City’s Official Plan for Section 37.

Any application to amend development standards in a Development Permit By-law in relationship to community benefits and/or to maximum levels of height and density would need to be supported by a comprehensive planning rationale within the context of the entire Development Permit By-law area as described in OPA 258.

MYTH #10. Toronto’s DPS is not suitable for areas of the city that contain heritage conservation districts or heritage properties.

FACT:

The DPS is entirely suitable for areas containing an HCD and/or individual heritage properties. A Development Permit By-law would recognize heritage resources in two ways:

  • Through the application of standards and criteria related to heritage conservation that would be applied to these properties; and
  • Through the application of standards and criteria related to heritage conservation that could be applied to surrounding properties where new development could have an impact on heritage resources (buildings, structures and landscapes).

A Development Permit By-law encompassing an area with heritage resources would have to be in conformity with the Official Plan Heritage Policies and could further implement these policies through standards and criteria that could protect specific heritage resources. An area adopted by Council as a Heritage Conservation District would continue to be in force and could be identified and referenced in a Development Permit By-law covering a similar area. Designated properties in a Development Permit By-law area would continue to be subject to the City’s Heritage Property Standards By-law.

MYTH #11. OPA 258 provides for too much delegation and staff discretion in issuing Development Permits.

FACT:

Development Permits By-laws cannot be delegated and can only be adopted by Council. Delegation applies only to the issuance of a Development Permit, the equivalent of delegated approval available in the case of site plan applications. As per Policy 14 in OPA 258, delegation to staff is a power granted by Council. Council may instead delegate approval authority to a Committee of Council or to a body appointed by Council. It is also possible to mix and match delegation authority whereby staff could have authority to approve development permits for smaller scale development and larger scale (complex) development would go to a Committee of Council or Council. However, despite the delegation, the Ward Councillor may require that the Development Permit Application be submitted to the appropriate Community Council and to Council for a decision.

MYTH #12. Toronto’s DPS will stifle creative architecture and design of buildings.

FACTS:

Through the DPS, the City can ensure that new development fits within the context of the surrounding built and natural environment. The City’s DPS will utilize provisions in the Planning Act (Section 41) and the City of Toronto Act (Section 114) that already enable the City to consider the exterior design details of buildings which influence a building’s character, scale, appearance and environmental quality. The reference to this enabling legislation is in Policy 18 of OPA 258. The additional reference in Policy 18 regarding the ability to impose conditions related to exterior building materials, architecture details, window details and colour simply clarifies the different elements of exterior design.

The overall purpose of reflecting community design goals in the Development Permit By-law is actually intended to encourage creative and innovative architecture and high quality design and the development of a sense of place by including conditions that seek to strengthen a new building’s relationship and level of “fit” with other buildings and landscapes on and surrounding a development site and its interface with public spaces such as parks, walkways, plazas and streets.

MYTH #13. The Development Permit By-law will not permit the introduction of any new uses not prescribed by the Development Permit By-law.

FACT:

One of the requirements of the Development Permit regulation is that a Development Permit By-law must identify and define a list of permitted uses. These uses are permitted subject to compliance with the development standards and criteria contained in the Development Permit By-law. However, unlike traditional zoning, a Development Permit By-law can be used to establish discretionary uses. These are uses which may be permitted if certain conditions identified in the Development Permit By-law are met. The visioning and public consultation processes which lead to the development of an area based Development Permit By-law, will allow for the identification and inclusion of both permitted and discretionary uses. The ability to identify discretionary uses will permit communities to better address area based new development and complete communities priorities for the longer term.

MYTH #14. A minor variance process will still be in place permitting variance applications to exceed the maximum performance standards stated in the Development Permit By-law and to accommodate technical variances to a Development Permit By-law.

FACT:

The Development Permit System as established in the Planning Act is intended to combine zoning, site plan and minor variance processes into one Development Permit approval system. The extensive front-end community engagement and visioning required prior to adopting a Development Permit By-law for any area will incorporate into the By-law agreed to minimum and maximum standards related to matters such as lot coverage, density and height. The idea behind a DPS is to accommodate agreed to variations and to avoid so-called unintended outcomes. The ability to establish variation within the range set by the minimum and maximum standards for development, often subject to the fulfillment of specific criteria, is a more certain replacement to the current, more open ended, minor variance process. Any variation beyond the minimum and maximum limits specified in the Development Permit By-law will require an amendment to the Development Permit By-law.

It should be noted that the DPS does not include the ability to apply for consents; accordingly consent applications falling within a DP area will continue to be heard by the Committee of Adjustment.

MYTH #15. The OMB can choose to amend any maximum standards put forward in a Development Permit By-law as part of the appeal of a Development Permit Application.

FACT:

An application for a Development Permit is assessed for its compliance with the development standards and criteria, including minimum and maximum standards, found in the Development Permit By-law. Any variation beyond the specified limits requires an amendment to the Development Permit By-law and cannot be considered as part of the application.

Accordingly, the approval authority cannot give approval to a Development Permit application that is not in compliance with the Development Permit By-law. This is also true of the OMB. The Regulation which provides the framework for the DPS, specifically states that the OMB may only make any decision that Council could have made regarding an application for a permit.

MYTH #16. OPA 258 does not contain transition policies and it is not clear what will happen to active planning applications that are in areas under consideration for a DPS.

FACT:

The DPS regulation does not obligate the City to spell out any transition policies in OPA 258. Although the City has chosen to proceed by way of an enabling citywide DPS OPA, it is clear that the DPS will only be implemented by by-law on an area by area basis. DPS areas will vary in scope, size and complexity. Individual transition policies may be developed through community visioning and input for each DPS area by-law. A development permit by-law could have transition provisions as required, similar to the provisions in the new citywide zoning by-law 569-2013. Specifics about the nature of transition provisions would depend on the development activity in the proposed development permit area and the land use permissions and standards in the development permit by-law. Generally, the intent of transition provisions should be to allow development that has received its planning approval to proceed to the building permit stage.