Bill 109 – More Homes for Everyone, 2022
On March 30, 2022, the provincial government introduced Bill 109, the More Homes for Everyone Act, 2022. Bill 109 proposes several amendments to existing legislation, including the Planning Act, the Development Charges Act, 1997, the City of Toronto Act, 2006, the New Home Construction Licensing Act, 2017 and the Ontario New Home Warranties Plan Act.
As is evident from its title, the Minister of Municipal Affairs and Housing (the “Minister”) has indicated that the purpose of Bill 109 is to increase housing supply and choice for families and individuals across the province. According to the government, Bill 109 is an attempt to implement some of the Housing Affordability Task Force’s recommendations, outlined in a report released in February this year.
Planning Act Changes
Notable amendments proposed to the Planning Act include:
- Requiring municipalities to provide refunds for zoning by-law amendment and site plan application fees where no decision is made during the statutory timeframe;
- The introduction of a new ministerial zoning tool – referred to by the Minister as the Community Infrastructure and Housing Accelerator (“CIHA”);
- An established review process for community benefit charge (“CBC”) by-laws;
- Amendments to parkland requirements on lands designated as Transit-Oriented Communities (“TOC”);
- Empowering the Minister with new powers regarding certain official plan amendments (“OPAs”) and new official plans; and
- Empowering the Minister to make regulations for the use of surety bonds as security for conditions imposed by a municipality on planning approvals.
Each proposed change is discussed further below.
Application Fee Refunds
The proposed changes to the approval process for zoning by-law amendment and site plan applications would require municipalities to refund application fees on a graduated basis (i.e. 50%, 75% or 100% depending on the number of days following the application) if a decision is not made within the legislative timelines. This change would apply to applications made on or after January 1, 2023.
The stated intent of this change is to “incentivize municipalities to make timely decisions”.
Site Plan Control
Changes are proposed to both the Planning Act and the City of Toronto Act, 2006 that would require municipal councils to delegate site plan control decisions to staff (i.e. an officer, employee or agent of the municipality). This would apply to all applications received after July 1, 2022.
The proposed changes would also extend the site plan application review timeline from 30 days to 60 days. This means that an applicant can only appeal a municipality’s failure to approve their site plan application to the Ontario Land Tribunal (the “Tribunal”) beginning 60 days after the application was submitted (rather than 30 days).
Last, changes propose to establish complete application requirements for site plan applications, similar to current complete application requirements for other types of applications under the Planning Act, with recourse if the application has not been deemed complete within 30 days of acceptance by the municipality.
Plans of Subdivision
The proposed changes would establish a regulation-making authority to determine what cannot be required as a condition of draft plan approval.
In addition, the changes propose to establish a discretionary authority to allow municipalities to reinstate draft plans of subdivision that have lapsed within the past five years without a new application (provided no agreement had been entered into for the sale of any land by a description in accordance with the draft approved plan of subdivision).
A new section to the Planning Act is proposed to be added, which would create an additional type of Minister’s order notwithstanding that the Ministerial Zoning Order (“MZO”) under s. 47 of the Planning Act still exists. The Minister has indicated that the s. 47 MZOs will instead be reserved for provincially significant infrastructure projects like the TOC program.
The proposed CIHA tool would permit the Minister to make a zoning order at the request of the municipality, by council resolution.
The Council’s resolution must:
- Identify the lands to which the order would apply; and
- Identify the manner the municipality’s powers would be exercised with respect to the lands.
The inclusion of a draft by-law in the resolution would be deemed to satisfy these requirements. However, before passing such a resolution, the municipality must give notice to the public and consult with persons, public bodies and communities as the municipality considers appropriate. Within 15 days after Council passes the resolution, the municipality shall forward the resolution to the Minister, where it may make an order under s. 34 of the Planning Act or by way of a development permit by-law.
An order may not be made in respect of any land in the Greenbelt area. However, the order does not have to be consistent with the Provincial Policy Statement, 2020 nor does it have to conform, or not conflict, as the case may be, with provincial plans or official plans.
The Minister may also impose conditions on such an order, and it would prevail in the event of a conflict with other by-laws passed under s. 34 of the Planning Act.
Finally, before an order is issued, the Minister must establish guidelines respecting orders and publish the guidelines on a Government Website.
CBC By-law Reviews
New subsections are proposed to the Planning Act, as well as the provincial regulation O. Reg. 509/20 regarding CBCs and Parkland, that would increase the existing municipal reporting requirements. If passed, municipalities with a CBC By-law will be required to undertake and complete a review of the By-law at least once every five years. The review will include public consultation.
Parkland Requirements for TOCs
The proposed amendments would implement a maximum and tiered alternative parkland dedication rate for municipal parkland in areas designated as TOC land under the Transit-Oriented Communities Act, 2020. The rate is proposed to be based on a percentage of the development land or its value (10% on sites 5 ha or less, and 15% on sites more than 5 ha).
The proposed changes would also provide the Minister of Infrastructure with authority to identify encumbered land at TOC development sites that could be conveyed to a municipality as parkland.
Ministerial Powers Regarding Official Plan Approvals
The proposed changes would give the Minister new discretionary authority when making decisions on certain OPAs, or new official plans. The Minister would be permitted to refer these matters to the Tribunal for a recommendation on whether the Minister should approve or modify the OPA or new official plan, or for a final decision. In either instance, the Tribunal would be able to hold a hearing before making its recommendation or rendering its decision.
The changes would also allow the Minister to suspend the time period in which to decide on all official plan matters subject to Minister’s approval (with transition for matters that are currently before the Minister).
Regulation-Making Authority for the Use of Surety Bonds
Last, another new section proposed to be added to the Planning Act would permit the Minister to make regulations prescribing and defining surety bonds (and other prescribed instruments). Such instruments would authorize landowners and applicants to stipulate the type of surety bond (or other prescribed instrument) to secure obligations imposed by the municipality in connection with land use planning approvals.
Increased Funding to the Ontario Land Tribunal and the Landlord and Tenant Board
While not a result of a legislative amendment, the Province has also announced that it will provide $19 million in funding over three years to the Tribunal and the Landlord and Tenant Board. This was a key recommendation in the Housing Affordability Task Force Report, and according to the Province, the extra funding will support faster case resolution by increasing the number of adjudicators, mediators and case coordinators as well as by improving access to online services.
Bill 109 has now passed its second reading and is currently being considered by the Standing Committee. It is proceeding through the legislative process quickly, thus we will continue to provide updates as we monitor its status.
City of Toronto Proposes a New Centralized Affordable Housing Access System
On February 15, 2022, the City of Toronto (the “City”) Planning and Housing Committee (the “Committee”) received a Staff Report outlining the consultation findings and concept design for a New Centralized Affordable Housing Access System (the “Report”). This Report provides details on actions taken to-date by City staff; comments from public consultations; and a concept design for the new access system. A final report is estimated to be provided to the Committee in Q2 of 2022, and subject to Council approval, it is anticipated that the new affordable housing access system will be launched in 2023.
In December 2019, City Council adopted the HousingTO 2020-2030 Action Plan (the “Housing Plan”) in an effort to develop and implement various policy initiatives to increase the supply of affordable housing in the City. The Housing Plan aims to approve 40,000 new affordable rental homes, including 18,000 supportive housing units by 2030.
To achieve this objective, the Housing Plan recommends that the City develop a new centralized access system to improve the allocation of the new affordable rental units. In April 2021, the Committee directed City staff to consult with stakeholders and create a concept design for a new centralized access system (Item PH22.10). The results are presented in the Report.
The Conceptual Design
After a three-phase consultation process with various stakeholders, City staff developed a conceptual design for the centralized access system. The key components of the concept design framework are:
- One-Window Approach: instead of housing providers advertising units through their own mediums, the new centralized system will consolidate City-administered affordable housing options into a single system. Applicants will create one account that can be used for both the social housing waitlist and affordable housing applications. The One-Window will also include tenant support resources, education and programs.
- Transparency and Consistency: by consolidating affordable housing projects under one system, the City can standardize the processes across the different programs and housing options. This design also contemplates automated communication features, where applicants will be notified when a unit is filled, regardless of whether they were selected for the unit. The standardization of the process allows the City to monitor whether units are being filled in accordance with City rules, with the hopes of achieving increased accountability.
- Simple and Accessible: the new centralized system will be user-friendly and easy to navigate. The conceptual design contemplates several features including the ability to search and filter units; applying for multiple units using one profile; an “eligibility calculator” which will calculate whether the applicants are eligible for that housing; the ability of upload required documents using the camera feature on mobile devices; and options to receive notifications by e-mail, phone or text message.
- Operational Efficiencies: the new centralized system will streamline administration by the City and automate the tenant selection processes. The use of technology will enable housing providers to fill vacancies sooner.
- Fair and Equitable Allocation of Units: the new centralized system contemplates several allocation methods (g., a randomized draw process, referral agreements, or prioritization of specified groups) to advance the equitable outcomes for affordable housing.
Interim Strategies and Actions
City staff also identified measures to simplify the process for finding affordable housing in the interim. These measures include:
- Raising public awareness of the City’s new e-mail list serve that notifies subscribers of new affordable housing opportunities as they become available;
- Updating the City’s Finding Housing website; and
- Developing public education materials to explain the differences between affordable and subsidized housing.
City staff continue to engage in consultations with various groups of stakeholders on the design of the centralized access system to further consolidate and simplify affordable housing agreements and administrative procedures.
As discussed above, a final report is estimated to be presented to the Committee in the second quarter of 2022, which will include a procurement plan, resource requirements and the overall financial impact on the City.
The centralized access system is expected to launch in 2023, subject to Council approval.
The Davies Howe LLP team will continue to monitor this program’s progress, and would be happy to answer questions you have regarding the new centralized access system.
Parking Up the Right Tree – Part 2
With the year coming to an end, the City of Toronto (the “City”) staff have been busy preparing programs, initiatives, and reports which are scheduled to go to City Council before 2022, including the Review of Parking Requirements for New Development. Our previous blog posts covered an Overview and Timeline of the Review, as well as an Update on the public meetings that took place in June. The City has now finished its public consultations and has provided a Recommendation Report and a Draft Zoning By-law Amendment to the City’s Zoning By-law 569-2013 (the “By-law”) for Automobile Standards. The recommendations are outlined below.
Future Visions and Current Trends
As outlined in our first post about the Review, the City is looking to establish parking maximums instead of minimums for new development. This decision is influenced by the need to prioritize sustainable and space efficient modes of transportation in light of the current climate challenges as directed by the Official Plan. The Transportation Tomorrow Survey showed that more apartment households are choosing to become car-free and that 46% of recently approved projects have parking levels below the minimums. The cost of construction for an underground parking space can cost as much as $160,000. With these trends in mind, City staff are becoming more supportive of applications that provide less parking than what is required and are attempting to reduce parking requirements further.
City staff have proposed changes to the By-law, including changes to:
- Policy Areas and Parking Zones;
- Land Use Categories;
- Auto Parking Rates;
- Accessible Parking Rates;
- Electronic Vehicle Supply Equipment (“EVSE”);
- Bicycle Parking;
- Payment-in-Lieu of Bicycle Parking;
- Transition Requirements; and
- Parking Supply Guidelines for City Developments.
Land Use Categories
The City is proposing to simplify the By-law by grouping together similar land uses to reduce the amount of land use categories from 90 existing land uses to approximately ten (10) categories.
To facilitate the introduction of parking maximums rather than minimums, the City proposes to maintain existing maximums where they exist, and introduce new maximums by land use group. Non-residential land use groups will be grouped into different “Tiers”, and parking rates will generally be determined based on which Parking Zone each new Land Use “Tier” is located in.
Development proposals that exceed the maximum permitted parking rate will require a zoning by-law amendment that is supported by parking studies and would be encouraged to provide additional travel demand management measures to offset the expected increase in driving.
Residential parking maximums will also be determined according to the respective Parking Zone, however, dwelling units in the following housing types are not subject to parking maximums:
- Detached house;
- Semi-detached house;
- Duplex, triplex, fourplex; and
- Secondary suites.
Policy Areas and Parking Zones
The proposed Parking Zones will be separate from the Policy Areas currently found in the By-law and are only applicable to maximum parking standards. There are two new Parking Zones proposed:
- Parking Zone Area A has the most restrictive parking maximums in the City and applies to lands within 400 metres of frequent higher-order transit. It generally includes lands within Policy Areas 1, 2, and 3.
- Parking Zone Area B has less strict parking maximums and applies to lands within 100 metres of frequent surface transit. It generally includes lands within Policy Area 4.
- The “Rest of the City” that is not captured within Parking Zone A or B will be subject to the least restrictive parking maximums.
A Parking Zones overlay map is being recommended by staff which will outline the Parking Zone boundaries in more detail. These boundaries will be subject to future revisions as necessary, associated with the adoption of Major Transit Station Areas.
Visitor and Accessible Parking
Minimum requirements will still be established for visitor and accessible parking and requirements for accessible parking will be separate from other parking requirements. A new method for calculating the minimum required number of accessible spaces is also proposed by staff which is expected to increase the total number of accessible parking spaces required.
Electric Vehicle Supply Equipment
The City is recommending a requirement that all parking spaces for residents in a development be “EV ready” and that 25% of all other non-resident parking spaces in the development be EV ready, to reduce retrofitting costs down the line. To be considered EV ready, the parking space must be equipped with an adjacent energized outlet capable of providing Level 2 charging or higher. The City will work with the Province and Toronto Hydro to determine how to limit the burden on developers when installing EVSE.
Bicycle Parking Rates
To continue reducing dependency on automobiles, the City is proposing to double the short-term bicycle requirements for residential uses in Bicycle Zone 1, from 0.1/unit to 0.2/unit. The By-law defines this area as “the area of the City bounded by the Humber River on the west, Lawrence Ave on the north, Victoria Park Ave on the east and Lake Ontario on the south” and it will not be undergoing a boundary adjustment.
Infrastructure to Support Low Parking Rates
A payment-in-lieu of bicycle parking will allow developers to reduce short-term bicycle parking requirements within Bicycle Zone 1 up to 50%. The City is recommending a rate of $500 per short-term space, and that the collected fees go to the reserve fund for the Toronto Parking Authority to expand the Bike Share program. A requirement for a bicycle maintenance station is also being recommended for developments with more than five long-term bicycle parking spaces.
While the City is looking for ways to reduce automobile parking and encourage alternative modes of transportation, there will be no reduction to existing lawful parking. However, the on-street parking permit program will not apply to new developments and instead, the City proposes to monitor the existing parking and other parking requirements through a monitoring program.
Future work will include:
- Review of the By-law’s loading space requirements, Guidelines for the Design and Management of Bicycle Parking Facilities, and bicycle parking standards; and
- Development of Transportation Demand Management Guidelines that support the review of Toronto Green Standard Single-Occupant Vehicles reduction targets and review of applications to exceed new parking maximums.
Further recommendations based on the Parking Review will be presented to Council in 2023.
Should you have any questions about the Parking Review and how it will affect your development, the lawyers at Davies Howe will be happy to assist you.
CONCEPT 2 KEYS (C2K) – UPDATE #3
Since our last updates on the City of Toronto’s (the “City”) Concept 2 Keys (“C2K”) program in May and June, the City is now transitioning parts of the C2K pilot program into a permanent service, including the affordable housing priority application function and the online Application Submission Tool (“AST”). Details of these updates are outlined further below.
Since its timely creation in March 2020 amidst the start of the pandemic, the C2K program has attempted to streamline the City’s planning and development review, from pre-application consultation to occupancy, by changing its organizational structure, processes and technology.
The C2K program introduces new factors to the development review process, including the new AST; an expansion of the intake portal; and creating dedicated application review teams with members from various City divisions to streamline the application process.
Since January 2021, the City has now introduced two new application review streams: the Priority Application Stream (the “Priority Stream”) and the District Application Stream (the “District Stream”). On November 9, 2021, City Council directed the City Manager to start transitioning the Priority Stream to a permanent service and to report back to Council in Q1 2022 to expand the Priority Stream further. Council’s decision is found here.
- The Priority Stream
The Priority Stream identifies and evaluates high-priority affordable housing applications based on the following criteria:
- Number of affordable units (at or below Average Market Rent as defined annually);
- Depth of affordability;
- Length of affordability;
- Number of affordable units that will be allocated to priority populations (identified in the HousingTO 2030-30 Action Plan); and
- Projects with government investment in the form of land or approved capital or operating funding.
Under the Priority Stream, City staff attempt to minimize delay by maintaining a tightly coordinated schedule, jointly resolving interdivisional issues and minimizing file load to improve application wait times for review. This process has permitted an expeditated review of high-priority affordable housing developments, averaging around 3-6 weeks, compared to the 8-9 weeks required for most other development applications across the City. For example, the first C2K application submitted since the review teams were formed was the Thunder Woman Healing Lodge Society development, which has now received its Notice of Approval Conditions six months after the application was first submitted.
The City hopes to increase the scope of the Priority Stream to include, among other things, development related permits and approvals.
- The District Stream
The District Stream is being used to test the scalability of development review improvements across a range of application types in a typical review environment. Unlike the Priority Stream, the teams in the District Stream have a regular intake capacity and carry a typical file workload. Currently, it is being tested in the Etobicoke-York District to eventually standardize its processes in other areas of the City.
To date, the Etobicoke-York District has three interdivisional application review teams, one in each sub-district (North, South and Central), consisting of application reviewers from City Planning; Engineering & Construction Services; Transportation Services; Parks, Forestry and Recreation; and the C2K Office, all to ensure review teams have the appropriate resources in place to review applications efficiently. Each interdivisional review team also has an extended review team from other City divisions, including Solid Waste Management Services, Legal Services and Toronto Building. The interdivisional review teams are an attempt to enhance collaboration, development consistency and increase transparency. Although the interdivisional team structure is integral to the collaborative review approach, City Planning remains the sole department to make recommendations to City Council and make decisions within its delegated authority.
Review Process Changes
Also as part of the C2K program, and after 6 months of testing, the City has now indicated that its online AST will be available for all development applicants to use beginning December 6, 2021. The AST digitizes the applicant submission process and attempts to make it more user-friendly. While the tool is not widespread in its application yet, early reviews from applicants have been positive and staff will continue to work on refinements.
Further, a file circulation platform is being tested to streamline application submissions, improve internal review processes and enhance transparency. The platform is to be integrated with the Integrated Business Management Systems and the Application Information Centre to enable more efficient collaboration between City staff and applicants. The City will request proposals for the platform in Q4 2021, and select a vendor in Q1 2022. The City hopes to implement the new platform by the end of 2022.
Finally, an online mapping and analysis tool will be tested by planning staff to understand the feasibility of using it as part of the development review. The tool would allow staff to efficiently locate land parcels; create three-dimensional building renderings; and evaluate the development potential of any given property in the city. An initial data review of the pilot is anticipated in Q4 2021 and results will be provided in the next quarterly report.
An Issues Resolution function was launched in Q2 2021 on the City’s website to address application-specific concerns, enhancing customer service and identifying additional opportunities for improvement to the development review process. Upon reporting an issue, you will receive confirmation that your request has been received within 24 hours, and it is expected to be resolved or escalated for resolution within 10 business days. Relationship and issues coordinators support this function and will be the first point of contact for understanding the current status of applications, providing updates to applicants and escalating issues that are complex or systemic in nature.
Development Fee Review
In February 2021, City Council directed staff to undertake a review of the current activity-based costing development application fee model. This review, which is currently underway, intends to improve the City’s existing fee structures to recover the costs of service, including, the processing efforts of staff, internal and external support functions and capital replacement costs. Staff will bring forward a report to Council in Q1 2022.
C2K staff will continue to provide updates to the Planning and Housing Committee on a quarterly basis and Davies Howe will be here to assist you with navigating these new changes.
City of Toronto’s New Foundation Drainage Policy
On November 1, 2021, the City of Toronto (the “City”) released its Foundation Drainage Policy (the “Policy”) and introduced Foundation Drainage Guidelines (the “Guidelines”) to support the Policy’s implementation. The Policy will apply to all new proposed buildings or structures that require applications under the Planning Act, except for Committee of Adjustment applications, starting on January 1, 2022. Existing applications will be exempt from these changes. The City will take the 2022 calendar year to consider case-specific exemptions.
Foundation drainage is the collection of water around the foundation of a building or structure from infiltrated stormwater and groundwater. Previously, foundation drains could be connected to municipal systems, however, the volume of foundation drainage discharged into the City sewers became a problem, resulting in the City amending its Sewers By-Law, Chapter 681 of the Municipal Code. This amendment prohibits new residential properties from discharging storm or sewage into the City’s existing sanitary or storm sewer systems, and instead promotes on-site water drainage with some exemptions available upon application to the General Manager of Toronto Water (the “GM”).
The City has now developed the Policy to further preserve sewer capacity in the City’s sewer systems and to sustain future development growth through managing foundation drainage on-site rather than discharging it to the City’s sewers.
The Policy starts by expressly prohibiting:
- The Long-Term Discharge of Foundation Drainage to the City’s sanitary sewer system (e. for more than 12 months); and
- Discharge of Foundation Drainage from the interception and extraction of Groundwater from confined aquifers to the City’s sanitary sewer system.
It then states that Long-Term Discharge of Foundation Drainage that contains any Groundwater is also not permitted to the City’s storm or combined sewer system unless the Foundation Drainage is deemed to contain only Infiltrated Stormwater (i.e. stormwater that enters the unsaturated zone), and all the following conditions have been met to the satisfaction of the GM. The conditions include satisfying a Qualified Professional that:
- The development site is not considered a Brownfield Property;
- The lowest elevation of any proposed structure will be higher than the Maximum Anticipated Groundwater Level in accordance with the Guidelines; and
- All requirements for a Storm Connection Exemption Application have been satisfied.
The Policy retains the GM’s exemption authority to allow the foundation drain to be connected to a municipal sewer at the written request of the owner, where a Qualified Professional has demonstrated that On-Site Management of Foundation Drainage is not technologically feasible and Long-Term Discharge of Foundation Drainage is required to avoid hazardous impacts. In receiving this GM exemption, the Long-Term Discharge of Foundation Drainage may be permitted so long as the Policy’s conditions are met.
The Policy also allows for a temporary connection of on-site Foundation Drainage infrastructure to facilitate future emergency repair under certain conditions.
Last, the City provides a “Summary Form” here, which, along with a Foundation Drainage Technical Brief, will be required as a submission requirement for development applications.
The Davies Howe LLP team would be happy to answer any questions you may have as to this new development requirement.
City of Toronto Adopts Tools to Facilitate Inclusionary Zoning
At its meeting on November 9 and 10, 2021, the City of Toronto (the “City”) Council adopted amended versions of the proposed Official Plan Amendment (“OPA”) and the proposed Zoning By-law Amendment (“ZBLA”) to implement inclusionary zoning (“IZ”) within the City’s future protected major transit station areas (“PMTSAs”).
As you may recall from our last blog, IZ is a tool for municipalities to require new development or redevelopment to provide a certain percentage of residential units as affordable housing.
The City first introduced draft IZ instruments in September 2020, which included a draft Official Plan Amendment and a draft Zoning By-law Amendment (collectively, the “Draft IZ Instruments”). After undergoing two phases of public consultation, on October 21, 2021, City staff released a staff report (the “October Staff Report”) recommending the adoption of revised versions of the OPA and ZBLA (collectively, the “Revised IZ Instruments”).
Council has now adopted the recommendations of the October Staff Report, with some amendments outlined in three supplemental staff reports: PH28.1a, PH28.1b and PH28.1c. The amendments to the Revised IZ Instruments were in response to the Planning and Housing Committee’s (“PHC”) recommendations, as well as new comments provided by the Ministry of Municipal Affairs and Housing. The amendments are intended to provide clarity around the transition provisions, the status of Map 37 as a statutory Official Plan map, the implementation of IZ in PMTSAs, the procedure for ensuring the units remain affordable and net proceeds for the sale.
We have reviewed the Draft Instruments, the Revised Instruments and the final IZ instruments, and have outlined the notable changes below.
Pursuant to the Planning Act, where an Official Plan is not prescribed for the purposes of IZ, IZ policies may only apply within areas delineated as PMTSAs that are approved by the Minister of Municipal Affairs and Housing (the “Minister”), or areas where a Development Permit System has been ordered by the Minister. In the City, IZ will only apply in areas approved as PMTSAs.
To provide clarity on IZ’s application within the City, the OPA now expressly states that IZ may only be enacted within an IZ Market Area as shown on Map 37 and within an approved PMTSA. The City intends to create a comprehensive Zoning Overlay Map which will identify delineated PMTSAs as they are approved by the Minister. Presumably, the PMTSAs will be overlayed on Map 37.
Notably, City Council adopted the recommendation to request that the Minister amend the Planning Act to allow IZ policies to apply across the City, and not limited to PMTSAs. Given that this change is not reflected in the OPA or ZBLA, this recommendation does not carry much weight. However, we will continue to monitor its status.
Currently, the Minister has not approved any PMTSAs, despite City Council submitting two potential areas for approval (Finch West and Sentinel Transit Station areas). Sixteen other draft PMTSAs for the Downtown area have been delineated and endorsed by the PHC for consultation. These draft PMTSAs are expected to go to City Council for consideration in early 2022. The City intends to bring the remaining PMTSAs to Council prior to July 1, 2022, the Growth Plan conformity date, all of which will then have to go to the Minister for approval.
The ZBLA has pushed back the transition date to exempt development from IZ from applications filed on or prior to January 1, 2022, to applications filed on or prior to the later of September 18, 2022 or the Minister issuing notice of approval of a PMTSA pursuant to the Planning Act.
This means that the IZ ZBLA will not prevent the erection or use of a building or structure for which complete zoning by-law amendment and site plan approval (“SPA”) applications, SPA applications, minor variance (“MV”) applications and building permit applications filed on or before September 18, 2022. Further, the IZ ZBLA will not prevent the erection or use of buildings or structures where the applications are filed after September 18, 2022 if the Minister has not approved the area as a PMTSA.
IZ also will also not prevent the erection or use of a building or structure for which:
- A zoning by-law amendment that came into force prior to the passing of a Community Benefits Charge By-law, and an agreement was executed pursuant to the former section 37 of the Planning Act, on or prior to the later of September 18, 2022 or notice of approval of a PMTSA. This exception will apply to in force zoning by-law amendments where no SPA application is submitted prior to the deadlines, however, a section 37 agreement is registered;
- A MV application filed after September 18, 2022 or after notice of approval of a PMTSA is issued, if a building permit for same was filed prior to that date; and
- A building permit application filed after September 18, 2022 or after notice of approval of a PMTSA is issued, if a zoning by-law amendment, SPA or MV application for same was filed prior to that date.
Complete applications are applications that satisfy the City’s Official Plan, Provincial Regulation or Municipal Code requirements, depending on the type of application.
Affordable Housing Definitions
The proposed “Affordable Rental Housing Unit” and “Affordable Ownership Housing” definitions have been revised once again. The draft IZ Zoning By-law released in September 2020 (the “Draft By-law”) outlined definitions based on household incomes. The ZBLA still bases the definitions on income, however, it now refers to types of households (i.e. studio, one-bedroom, two-bedroom, three-bedroom), rather than amount of people within the household. City staff believe these revised definitions will help low and moderate single-income earners. For example, a studio apartment may be occupied by one person whereas a three-bedroom unit may be occupied by one person and two dependents. In both cases, the household only has one income earner, but the single-person household income can be at or below the 50th percentile, whereas the three-person household income can be at or below the 60th percentile, given that they have more mouths to feed.
Inclusionary Zoning Overlay, Phasing and Monitoring
The Draft By-law contained two Inclusionary Zoning Overlay Areas (IZ1 and IZ2), which required minimum percentages of the total gross floor area (“GFA”) for residential uses to be provided as affordable rental housing units. IZ1 reflected strong market areas and encompassed the downtown core, whereas IZ2 reflected moderate market areas in areas adjacent to downtown (see old Map 37, pg. 5)
The ZBLA has reduced the minimum percentages required and created an additional Overlay Area (IZ3). IZ3 encompasses the inner suburbs of the City including areas within portions of South Etobicoke, North York West, North Yonge Corridor, Scarborough Central and Scarborough City Centre. All three IZ areas are identified in the OPA on Map 37.
In all three IZ areas, there is now no minimum percentage required for purpose-built rental housing buildings. Previously, a minimum of 5% was proposed for IZ1 areas and 3% for IZ2 areas. However, to better align with the HousingTO Action Plan and Official Plan policies supporting purpose-built rental housing, the City eliminated this requirement until January 1, 2026, when the requirements for a purpose-built rental housing building will be 5% in IZ1, 3% in IZ2 and 0% in IZ3. This is outlined in Schedule A to the ZBLA.
For ownership housing buildings, defined as a building or part of a building containing dwelling units which are individually owned as part of a freehold ownership or a registered condominium, the GFA for residential uses required is as follows:
|Condominium development securing affordable rental housing units
|Condominium development securing affordable ownership housing units
These rates also apply to purpose-built rental housing buildings that are converted to ownership buildings.
The two distinct rates for rental housing and ownership housing were not found in the Draft By-law and reflect an updated Financial Analysis. The City states that this analysis demonstrated that providing affordable ownership units has less impact to land values than providing affordable rental units.
The ZBLA also phases the above minimum requirements starting on January 1, 2025 and ending January 1, 2030. Affordable rental housing units will increase annually by 1.5% for IZ1, 1% for IZ2 and 0.5% for IZ3. The requirements for affordable ownership housing units will increase at a rate of 1.4 times the requirements for affordable rental housing units.
Last, City Council adopted the PHC’s recommendation to direct City staff to review the IZ policy one year after its implementation to assess the market impacts of IZ, including the need for incentives; changes to the phase-in or set-aside rates; and alterations to the minimum development size threshold. This PHC recommendation arose from Mayor John Tory’s motion at the PHC meeting and was strongly advocated for by certain stakeholders and Councillors to ensure the viability of the City’s IZ tools.
Rental Replacement Units
The ZBLA now defines rental replacement units and excludes any rental replacement units required under the Official Plan from contributing to the total residential GFA, for the purposes of providing affordable rental housing units or dwelling units. This exclusion effectively separates the requirements of rental replacement units from IZ’s affordable housing requirements as two distinct processes, ensuring that the rental replacement units are not double counted.
Affordability and Net Proceeds from Sale
The Affordability period for affordable rental housing units and affordable ownership housing units is still a minimum of 99 years from the date on the first residential occupancy of each affordable housing unit.
The exemptions for development have been revised. The Draft By-law proposed to exempt development with fewer than 140 dwellings and 10,000 square metres of GFA for residential uses, unless it was within the Downtown or Central Waterfront Secondary Plan area, where only development with fewer than 100 dwelling units and 8,000 square metres of GFA for residential uses would be exempted. The ZBLA now only exempts development with fewer than 100 dwelling units and 8,000 square metres of GFA for residential uses regardless of the geographic location.
However, retirement homes and nursing homes were added to the exemptions, which exemptions already included student residences, non-profit housing providers (with some extra requirements) and residential care homes.
Draft Implementation Guidelines
To facilitate the implementation of the IZ OPA and ZBLA, City Council also endorsed the Draft Implementation Guidelines (the “Guidelines”) to undergo consultation and directed staff to report back with final recommended Implementation Guidelines in the first half of 2022, including identifying the terms and conditions for a third party administrator of affordable ownership units and an additional analysis that looks at a human rights approach to improving the affordability of set-aside numbers.
Currently, the Guidelines address specific details such as unit design, mix and size; accessibility; access to building amenities and parking; household eligibility; and marketing of affordable units. While the OPA and ZBLA will take precedence over the Guidelines, the Guidelines provide additional insight into the City’s objectives.
IZ has been closely monitored by many stakeholders within the City over the past 2 years. As such, it has been a controversial subject as demonstrated by the large number of submissions and deputations made at the Council Meeting.
The Team at Davies Howe LLP has been following the process closely and would be happy to discuss any of the foregoing with you and how it may impact you.
Toronto’s New Green Standards – Environmental Essential or Affordability Aggravator?
In its meeting on July 14th, Toronto City Council (the “City”) adopted (with amendments) item PH25.17: Toronto Green Standard (TGS) Review and Update. This directs staff to apply version 4 of the TGS standards (the “Standards”) to new development applications starting May 1st, 2022. Buildings are responsible for 59 per cent of Toronto’s carbon emissions, and while the Standards have been hailed by City councillors as helping to combat climate change and biodiversity collapse, some in the development industry question whether the Standards are compounding the cost of housing and Toronto’s affordability crisis.
The Standards are based on three tiers of increasingly sustainable performance. All developments, including those through the City’s Housing Now initiative must conform at least to Tier 1 standards. Builders who construct at higher tiers are eligible for an incentive under the City’s Toronto Green Standard Development Charge Refund Program.
Tier 1 standards will soon require all new developments to accommodate electric vehicles in 25% of parking spaces (up from 20% currently). Some large-scale Tier 2 and 3 developments will require 100% electric vehicle parking. Near-zero greenhouse gas emissions will be required by 2030 for all mid-high rise residential and non-residential buildings. Furthermore, new developments will also be required to better capture and control stormwater runoff. This control will occur through better street design, green roof coverage of at least 80%, and landscaping 25% of the lot area with native flowering/pollinator species.
Tier 2 and 3 standards, in addition to the above, will require developers to conduct a materials emissions assessment of the embodied carbon of structural and envelope components. This means carbon, not just from construction but from any previous buildings on site, will require calculation and potential sequestration through onsite green infrastructure provision and landscape design. This might suggest a shift away from concrete building structures in the long term, as such structures are highly carbon intensive.
One thing the Standards do not address is the prevalence of natural gas within the City’s existing housing stock, which accounts for much of the emissions from residential buildings, primarily to heat space and water.
Lastly, Council passed a motion to study potentially enacting by-laws for all multi-residential buildings, irrespective of tenure, to enable its transition towards a “circular economy”. This would include mandating various waste reduction, reuse and diversion programs beyond compost and recycling, and diverting from landfill as much construction and demolition material as possible during construction, redevelopment, and renovations.
Something Old, Something New
To an extent, the Standards adopted by Council are familiar because the themes addressed have been an ongoing discussion in the City, and across the world. The proposed demolition of the Rogers Centre last year left some questioning whether embedded carbon costs could be adequately captured in the development review process. The expansion of green roofs and pollinator gardens goes hand in hand with last week’s Council decision to re-balance stormwater utility rates to encourage more surface permeability. Various other global cities have adopted circular economy strategies, including Amsterdam, London, Paris, Copenhagen, and more, with the ultimate aim of such strategies to produce no waste and pollution, by design. Lastly, the recent tornado in the City of Barrie, has prompted further calls for climate resistant buildings.
Toronto’s Building Industry and Land Development Association (“BILD”) has raised concerns that the Standards could increase costs for the development industry, which would ultimately get pushed onto buyers and renters of new housing. Specific concerns raised by BILD include whether the electrical grid has enough capacity to accommodate an influx of new electric vehicles, and the maintenance costs for green roofs and pollinator gardens. BILD also questioned whether a Province-wide green standard would make more sense, to avoid pushing development outside of Toronto and into other areas in the region. Lastly, BILD questioned whether these new Standards, in addition to new Inclusionary Zoning, would make some developments simply unfeasible.
The Standards will come into effect on May 1st, 2022, giving members of development industry just under a year to make relevant changes to their processes and practices. The Standards are reviewed every four years, which means in 2025 the City will have another opportunity to determine whether the Standards should be improved, or whether those coming into force next year represented an overstep to a complex industry.
In the wake of various climate disasters across the globe, and growing calls for more action on climate change, the question will not be whether the industry changes, but when.
City of Toronto Mulls Further Enhancements to Development Review Process
On Friday June 11th, 2021, the City of Toronto’s (“the City’s”) Planning and Housing Committee (“the Committee”), adopted two items which could further change its development review process to provide a more seamless and collaborative approach to its assessment of development applications. We briefly outline these items below and will continue to monitor changes to these initiatives as they arise.
New Amendments to Concept 2 Keys (C2K) Program
We previously reported on the Concept 2 Keys (“C2K”) program in May 2021. On a basic level, C2K aims to reimagine organizational structures, processes, and technology to provide for a more seamless and collaborative approach to development review. This will be done through the launch of a new online application submission tool with new user-friendly forms and templates, the expansion of the online intake portal, and the creation of dedicated application review teams made up of members from various City divisions and overseen by new application managers and coordinators. C2K is currently being piloted on affordable housing development applications and long-term care home applications.
As reported to the June 11th committee meeting, the C2K program is preparing for the launch of “Phase 2” of the program at the end of June 2021. This would expand the use of the program to application types beyond affordable housing and long-term care homes, within the Etobicoke-York District. Should these pilot programs succeed, it is intended the C2K program will be extended to the entire City..
As reported, the City is also undertaking a development fee review to improve its existing fee structure to recover the costs of service for development applications. This work is currently being performed by a consultant and is expected to be completed by the third quarter of 2021. Following this, City Staff will report back with recommendations to City Council in the fourth quarter.
Mandatory Pre-Application Consultations Proposed
The Committee likewise voted to implement the standardization of pre-application consultations on planning applications, and to make these consultations mandatory in order to submit a development application.
Standardization of pre-application consultations would involve facilitating interdivisional alignment on application requirements prior to an application being submitted and identifying solutions to application-related challenges.
Mandatory consultations are partially a response to the shortened statutory timelines brought in under Bill 108, for processing planning matters. These would be enacted through amendments both to Toronto’s Official plan and its Municipal Code. These two streams of work are expected to culminate in a City-wide roll-out of mandatory pre-application consultation in 2022, following a potential transition period once the aforementioned Official Plan Amendment has come into force and effect.
The Committee directed that Terms of Reference for this work should also include direction that applicants, as part of a pre-application consultation, discuss affordable housing and how the application will address the City’s policies related to providing a full range of housing.
The Goldilocks Standard: Right Sizing Housing in Toronto
It may not be as exciting as the song, “525,600 minutes”, but today, we talk about the Growth Plan’s targeted forecast for a Toronto of 3,650,000 people, and how many of them can be accommodated in existing housing stock.
On Friday June 11th, 2021, the City of Toronto’s (“the City”) Planning and Housing Committee, received a report on Right-Sizing Housing and Generational Turnover (“the Report”). The Report will be considered as part of the City’s Municipal Comprehensive Review (“MCR”) of their Official Plan, to bring it into conformity with the 2051 population forecast targets outlined in the 2020 consolidation of the Province’s Growth Plan.
By 2051, the City’s population is projected to grow by over 700,000 people from 2016 levels. However, this number alone does not provide information on how many housing units will be required to accommodate this population, nor the housing sizes or types that are suitable to meet each household’s needs. The City’s MCR will help determine policies that prescribe housing type distribution in any new developments, making the discussion of whether certain housing types are needed more than others even more important. With this context, the Report considers whether current households are over-housed or under-housed, and whether housing turnover may fill some of the City’s housing needs to 2051.
Too Large… Too Small…
Housing suitability is determined based on the National Occupancy Standard (“NOS”) of the Canada Mortgage and Housing Corporation. This standard sets out the number of bedrooms that a household needs based on the number of people living in a household and their demographic factors, including age and relationship status. If a household has at least one less bedroom, then according to the NOS, it is deemed “under-housed”. If a household has at least one more bedroom, it is deemed “over-housed”. If the household has the exact number of bedrooms set out in the NOS, it meets the so-called goldilocks standard and is “right sized”.
The Report reveals that while 135,000 households in the City were under-housed in 2016, more than three times as many households were over-housed. Under-housed households were mainly those with children, particularly in mid- and high-rise units, while over-housing generally increased with the age of a household. Renters tended to be more under-housed than owners (18.6% versus 6.3%).
Importantly, the NOS does not consider the preferences of households in its calculations. For example, a household that has an extra bedroom but is frequently visited by friends and family, would still be counted as over-housed.
Potential to Accommodate Future Growth through Housing Turnover
Housing turnover occurs when a household vacates its dwelling, and a new household moves in. For example, downsizing is a form of turnover and refers to households owned by persons aged 50 years or older who transition from being over-housed to a unit that is right-sized, or has fewer unused bedrooms. When one household downsizes, it creates an opportunity for another household to move in, rather than occupy a new housing unit.
Housing turnover allows Toronto’s existing housing stock to play a role in determining how many new units the City will need to construct over the next 30 years. The Report estimates that approximately 25% of Toronto’s forecasted population growth to 2051 could be accommodated in its existing housing stock, and that by 2051, almost all 2016 housing stock occupied by older generational households will have turned over.
Consequently, not all future population growth needs to be accommodated in new housing.
The Report notes that this research may further support the City’s Expanding Housing Options in Neighbourhoods initiative, which deals with intensification of the City’s neighbourhoods, in which most over-housed households are living. It may also guide climate action initiatives given the carbon emissions associated with new development.
Introducing the New Ontario Land Tribunal
Farewell LPAT, we hardly knew ye.
On June 1, 2021, select changes from Ontario’s omnibus Bill 245, the Accelerating Access to Justice Act, took effect. Among these changes is the amalgamation of the Local Planning Appeal Tribunal (“LPAT”), the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal and the Mining and Lands Tribunal, into a single new body, the “Ontario Lands Tribunal” (“OLT”), pursuant to the Ontario Land Tribunal Act, 2021.
The Province first announced this decision and circulated a draft set of Rules of Practice and Procedure (the “Rules”) in January 2021. After receiving public submissions, the Rules that will govern the amalgamated Tribunal have been finalized. Notable changes to the procedures include:
New Focus on Cost Effectiveness and Efficiency
The OLT was introduced to eliminate overlap between cases, streamline the hearing process and to find efficiencies in tribunals’ specialized areas of adjudication and mediation expertise. The Rules build on these principles immediately by stating in Rule 1.3 that they are to be liberally interpreted to offer the best opportunity for a fair, just, expeditious, and (now) cost effective resolution of the merits of the proceedings.
To this extent, multiple time-saving processes have been introduced by the Rules into the OLT’s procedure. Among these are Rule 2.2, which introduces an Alternate Chair, who may perform the duties of the Chair and has all powers of the Chair in cases where the Chair is unable to act. Rule 5.1 removes the requirement to provide applications, appeals or referrals in hard-copy, instead calling for submission in electronic format, unless directed by the Tribunal otherwise. This likely goes hand in hand with the OLT’s new online document submission platform. Further, while new practices for electronic hearings have already been introduced, the Rules’ continued focus on these procedures suggest that these will also be used post-COVID.
Rule 19.2 mandates parties to present a draft procedural order prior to a case management conference (“CMC”). While this was already standard practice of the LPAT in many cases, this practice is now explicitly codified within the Rules, thus further expediting the hearing process, and streamlining the CMC process.
Renewed Focus on Mediation
Both the former Ontario Municipal Board and LPAT have been criticized for not having a procedure or framework for non-Tribunal members to conduct public mediations. This has led to significant time and cost delays as the timing of mediations depended on the Member’s scheduling, and often led parties to seek private mediation thereby increasing their legal costs.
The Rules have changed this process by allowing Tribunal-led mediations to be conducted by an approved external mediation service. Mediation assessments may also be conducted by external mediators approved by both the Chair and the Ministry of the Attorney General. Thus, the pool of public mediators available to OLT participants has been expanded. While the OLT Rules do not go as far as Rule 24.1 of the Rules of Civil Procedure (which mandates mediations in certain regions before a hearing can even occur), this change supports the promotion and facilitation of the mediation process.
Blurring of Notice Period Requirements
Rule 6.4, which set out different notice periods per type of planning appeal, has been removed, and new Rule 6.1 simply states the notice period will be directed by the Tribunal. While this change gives the Tribunal flexibility to set notice periods appropriate to the circumstances, it provides less certainty for municipalities, appellants, and the public to understand in advance how much notice they will be required to give, or will receive, prior to a hearing event.
Impartiality of Expert Witnesses
Another notable change in the Rules is an express provision in Rule 7.5 regarding the impartiality and professionality of expert witnesses. Expert witnesses that are giving oral evidence in examination in chief, under cross examination or while in reply, cannot seek or receive assistance or communication, except technical support, from third parties. This express Rule attempts to ensure that expert witnesses (and third parties) understand their professional duties when an expert is testifying in front of the Tribunal. This recognition was introduced into the Acknowledgement of Experts Duty forms when the LPAT went virtual post-COVID and is now codified in the new Rules.
The team at Davies Howe LLP will continue to monitor legislative and regulatory changes as they relate to land use planning and development.