Monday, July 30, 2012

How to read a Toronto Zoning By-law

A house under a building dispute; photo by Carlos Osorio, and copyright 2012 the Toronto Star
If you're an avid reader of the Toronto Star like I am, you have no doubt shaken your head about a couple (the Tsengs) who has spent hundreds of thousands of dollars (and allegedly has cost the City of Toronto about half a million themselves) fighting a demolition order to raze an addition to the house they live in. Those sympathetic to their cause point out that the couple are old (and thus have mobility issues, requiring a new room), the part of the house they replaced was termite infested, and that such additions aren't uncommon in the neighbourhood. Detractors (including the City of Toronto) point out that their addition is not only illegal, they didn't obtain a permit to construct it in the first place.

You can read the articles for more information, but suffice to say, the couple has taken multiple avenues to keep the addition (including a complaint to the United Nations), and have been turned down at each. One of the lingering questions is how the couple's daughter (who owns the house, and is a lawyer), and the elderly husband (a retired realtor), would be unaware that a building permit was required, or why they were unaware what they built was in violation of their local by-law.

I can't answer that, but what I can answer is how you can (roughly) determine how to read a zoning by-law (ZBL) in order to understand what can be on a particular parcel of land as-of-right in Toronto. Different municipalities/provinces/countries will have their own ZBLs, but there is potentially a lot of overlap. Before continuing, I want to make it clear that while I can show you how to read a ZBL, certain aspects of a property (such as the property line, and grade differences) will likely require a professional assessment. Also, if you're thinking about doing something to your property, do it right! Spend the money to hire a professional (or at the very least, talk to the city planner for your ward) to ensure anything you do is within your rights.

One final warning: it's not uncommon to find buildings that are not compliant with the current ZBL, but are considered as "legal non-conforming." This means that the construction or use pre-dates the ZBL in question, and will be allowed until such time as the use ends (i.e. the business moves out, or the building is torn down). While the details are a little unclear, this seems to be what happened with the Tsengs above; the "termite infested" structure was built before a ZBL change, and when they tore it down and replaced it (albeit 45 centimetres longer than before), the building became out-of-compliance. Remember: any change to a property must conform to the current ZBL, not whatever one the building was built "into".

The first stop: the Internet!

You can get a lot of information about your property online. The City of Toronto has recently created a very nice online program that uses GIS software to map the ZBL in effect for a property. You can find this awesome service at Let's pick a random property, such as 38 Brunswick Avenue:

I understand that the text there may not be too large, but here's the two relevant sections I want to point out in this picture:

1. Residential Zoning Code: R (d1.0)(x848)
2. Commercial Residential Zoning Code: CR 3.0 (c2.0; r2.5) SS2 (x2363)

These codes briefly outline the uses, density, and exceptions within an area. The "d1.0" represents the maximum density allowed on a lot, referred to in a by-law as the "maximum floor space index". Put simply, it's how big a building is allowed on your lot. I highlighted the second number for the Commercial Residential Zone to highlight that buildings where multiple uses are allowed are often broken into two densities.

A quick (very unofficial) measurement of the lot that 38 Brunswick lies on measures a perimeter of 100m, with a lot size of about 330sq m (about 42m x 8m).

If we ignore setbacks and height restrictions, given that the density is "1.0", that means that any structure can be built in any manner as long as the total floor space in the house measures 330 sq m or less. For example, a building that is one floor could take up the entire lot of 330sq m. More typically (given setback requirements), a building that was two floors, with 165sq m each would work too, as would two floors, with the bottom one being 200 sq m, and the top being 130 sq m. At another extreme, an 11 story building with floors equaling 30 sq m would technically qualify too, although (aside from smashing the height limit), it would be a pretty thin structure!

If the density allowed was 0.7, that would mean that a structure of 231sq m  (330 x 0.7) would be allowed on the lot. If the density allowed was 2.5, that would mean that a structure of 825sq m (330 x 2.5) would be allowed.

(As a note, the City of Toronto has a great diagram if you're still confused.)

For a Commercial Residential property that has two different uses, a "total" density is shown, along with the maximum density that each half can have. Let's look at the zoning code again:

Commercial Residential Zoning Code: CR 3.0 (c2.0; r2.5) SS2 (x2363)

Breaking it down, the total density of the building allowed is 3.0 (three times the area of the property). The two totals in the brackets represent the maximum density allowed for a particular type of use. Thus, "c2.0" means that a maximum of twice the "total floor space area" is allowed for the purposes of commercial use. Likewise, a maximum of 2.5 the "total floor space area" is allowed for the purposes of residential use. Since the maximum total floor space area allowed cannot exceed 3.0, there must be some combination, ranging from c0.5, r2.5 up to c2.0, r1.0. Anything in between would be allowed (such as c1.5 and r1.5), as long as the total doesn't exceed 3.0.

Other things you can find online

Zoning by-laws have a large (I mean large) amount of information about what you can legally do with your property before you have to get an exception. Information about set backs (i.e. minimum distances from the street or other neighbours), outdoor sheds, decks and porches, etc. can all be found in your typical ZBL.

Height is very important, but it's easy to find out; on that same City of Toronto GIS doohickey, you can click on  "overlay layers" and then "height" on the left menu to find out how tall you're allowed to build in an area (For 38 Brunswick, I checked: it's 12m). Finding out the remaining issues require some heavy reading into the zoning by-law unfortunately, but with some persistence (or via an expert), you can figure out what you need. Luckily, the current by-law is online for you to look at.

Reading through it, one thing that will likely sting any homeowners on Brunswick Ave. is the maximum building depth found in section; for a semi-detached, the maximum depth is 17m. Many of the houses on the block are over 20m in length (38 Brunswick's is about 24m), which means that they're (likely) "legal non-conforming" structures (as a side note, this is probably what is stinging the people in the article above).

That leaves only one more thing to check, which is the 'x848' in the by-law. This number represents an "exception" in the ZBL that is specific to this particular area, and... okay, they're a pain in the butt to figure out.

Getting a bit more hands on: exceptions

Exceptions allow buildings to legally break particular portions of a ZBL. They're quite common, and generally will reflect the "character" of a neighbourhood. Unfortunately, they tend to be extremely legalistic in nature, and reference old ZBLs. In our "x848"'s case, there are some exceptions granted by ZBL 438-86, an "old" City of Toronto ZBL from pre-amalgamation. Unfortunately, a copy of it isn't available online; you need to contact the city to obtain a copy (or at least, the information within it). ZBL amendments from 1998 (when the city was amalgamated) are available, but for everything else you'll need to do some footwork. Contacting the Toronto Building department at the city should be able to get most of the information you need.

Other things to look for are Committee of Adjustment (CoA) decisions; these represent "minor" adjustments to what is allowed on the property. Now, what represents "minor" is a good question, but generally, a minor adjustment will allow someone to "break" a by-law to allow small changes to their property. For example, an addition might require a few extra inches that would otherwise contravene the ZBL; an application to the CoA might allow it despite it being a violation on paper. The decisions are not listed in the by-law, but they can be obtained at City Hall for a small fee. However, if you've been the owner of a property for a while, you'll likely be aware of what CoA decisions have been reached on your property, so this step might be unnecessary.

Wrapping it up

Examining a property online can be pretty time consuming, but as above, the basics aren't so hard to find out. It's when you really start getting into the particulars that an expert can help! Still, ignorance is certainly no excuse. As the story of the Tsengs above shows, fighting the city can be really expensive, and they will fight it, even if it costs them half a million. Save yourself the grief!

Thursday, July 26, 2012

Intensifying your Neighbourhood

2009 Google Street View of Ossington Ave. between Dundas St. W and Queen St W. Copyright Google, 2012

A recent uproar in the Ossington neighbourhood in Toronto over a proposed mid-rise building in Toronto has (once again) brought about resident fears that their neighbourhood will be in ruins if the proposed building is allowed to be erected. There are a couple of ideas addressed in the opposition to this development, and I'm going to try and touch upon two of them: the height of the proposal, and its contents. Quote one of the residents from a Toronto Star article about the proposed development:

“It would suck the life out of the strip".

 I am certainly not familiar enough with the area to really comment on this specific proposal, but I can certainly give you an idea of how the  developer, Reserve Properties, came to their proposal.

To the north (Dundas St. West) and south (Queen St. West) are areas of the city designated as "Avenues" in the city's Official Plan. The strip in question runs about 600 metres according to Google Maps from one end to the other, including the corner lots where the tallest buildings would likely be found. It is zoned as a "Commercial/Residential" zone (i.e. Mixed Use), and the current by-law allows for a height of 14 metres, or 4 stories (Quick rule of thumb: a commercial floor is about 4.5m, and residential floors are about 3m). The zoning is a bit more complicated than that, but I tell you this so you have a idea what the "as-of-right" zoning allows in terms of what could be built upon it (in other words, what they could build without requiring the permission of City Planning). Unfortunately for the neighbourhood opposition, the zoning by-law that they are hoping will protect them from this proposed development is almost certainly out of date.

Despite the fancy "2012" slapped onto the zoning by-law (in fact, it's barely a month old at this point), most by-laws are relics from pre-amalgamation Toronto, in some cases about as old as I am. It's often said that Toronto has "under-zoned" itself in order to drag "concessions" from developers. As Councillor Adam Vaughan says in the above Star article, it can lead to developers "shooting for the stars". I don't think two stories is "shooting for the stars" (when I interned at the city, we had one couple come in an propose a 20+ story building in a similar type of area. We told them "six"), but whether you agree or not, it certainly means that developers have little incentive to not request more than what the by-law contains when there is a long history of them getting more, backed by a quasi-judicial body (the Ontario Municipal Board) who will follow Provincial policy and allow higher densities.

So if you're Reserve Properties and you want to get the most out of your investment, you're going to ask for more. And why not? Ossington is a fairly attractive piece of real estate, especially this piece which is sandwiched between two major avenues (each with their own streetcars). From a certain point of view, this is a great target for intensification.

Planners at the city expect this, and what often happens is there is a negotiation over what will be supported by planning staff (as a reminder, getting the support of city planning staff is one of the best ways for a developer to ensure their development is approved, either by city council or by the Ontario Municipal Board). I don't know if this particular development has planning staff approval, but if it does you can almost be certain it has met all the requirements that were asked for, such as shadow and traffic studies.

In a planning environment where intensification is expected to be occurring all over the city (not just in the former downtowns and designated avenues), you'll be lucky not to see your neighbourhood intensified in some fashion. Just as how sometimes a former school becomes the site of a new in-fill development of townhouses, or a corner lot near a busy intersection becomes a dreaded high-rise building, sometimes the two-to-three story building needs to become a six-to-ten story building. I'm sure that regardless of whether council approves the development, its size will not be a hit with everyone.

2009 photo of Malvern Town Centre. Copyright Google, 2012.

What goes inside the building is another conversation entirely, but I will try and be concise about it here. Another quote from the Toronto Star article (emphasis mine):

"The proposed condo was loudly denounced for breaking the zoning bylaw by two storeys, for units too small for families, and for a huge, ground-level retail space likely to attract a “character-destroying” big chain store."

Both of these issues are tied to the zoning by-law as well, which aside from height and density, can also dictate minimum/maximum sizes for units, including retail. Another article in The Atlantic, "Of Storefronts, Soulless Banks, and the Slow Death of Nora Ephron's Upper West Side", is a quick read that hits on this idea that "successful" neighbourhoods can be their own downfall.

It's simple math (although not to be confused with a simple problem): successful neighbourhoods attract investment that drive the value of the land up due to its desirability. You can be certain that the people who own land along this particular strip in Ossington are keeping a close eye on the outcome of the Reserve Properties proposal, for it could potentially raise the value of their land substantially. Higher value however, comes with higher property taxes, which can put pressure on tenants such as "mom and pop" stores, who might be considered to be valuable neighbourhood institutions.

This isn't an unusual phenomenon; one of the planning studios I participated in at Ryerson looked at how suburban "indoor" malls can help older adults and seniors to socialize (thanks to Kari Ala-Leppilampi for that, it was primarily his idea). Of course, the indoor mall is often under threat of being replaced by a chain of "big-box" stores (your Wal-Marts, Staples, etc.), an effect which would be the death of many smaller, independent stores. At Malvern Town Centre, for example, you can find a beauty store dedicated to black women, a south-east Asian bakery, and even a cafe that serves bubble tea (ugh, a drink I could never enjoy). 

In a funny way, they can exist because the mall is successful enough to allow them to stay in business, but not successful enough to encourage the owner of the Malvern Town Centre property to convert the property to turn it into the new "plaza" shopping malls that are more common today (and which could pay higher rents).

It's essentially the same thing on a smaller scale for businesses on strips such as Ossington, but instead of having an indoor mall replaced by a Target, it would be two or more stores being replaced by something bigger. Maybe it's a restaurant (say, McDonald's or a Starbucks), or maybe it's a grocery store (your Loblaws or Sobeys). Regardless, the "neighbourhood" institution gets replaced by something much more corporate. It's not surprising that a developer who is looking to redevelop a piece of real estate would want to get a business on board that has a proven track record at payin' the bills (re: rent). Unfortunately, yes that usually means someone who isn't mom and pop.

Visioning Map for Queen St E Study. Copyright City of Toronto, 2012

To not drag this out longer, I will forgo talking about the issue of "what kind of people/family" that these new condos are being built for as it is itself a pretty complex issue, but the solutions are very similar toward "protecting" small businesses.

Get your local councillor to get the zoning by-law updated to reflect how your neighbourhood could change! This is true if you live here in Toronto; such a process may work elsewhere, but not all planning environments have the mechanisms to "easily" change a zoning by-law like Ontario does. If your neighbourhood tries to use a zoning by-law that is more than a decade old to shield itself from larger development, it's going to be awfully disappointed when the by-law is shredded in front of it. Any neighbourhood is going to have the potential for intensification, so your best bet is to get in front of it as early as possible and see what is realistically on/off the table. 

The current ongoing study of Queen Street East is an example of how a neighbourhood can envision itself in the future, and better roll with the change. You can visit the link there to see how a neighbourhood can envision "change", but the important thing about such an endevour is that it can set clear guidelines not only for developers, but residents about what is/is not appropriate in the neighbourhood, and then change the local by-law to reflect this. While certainly that doesn't preclude a developer from appealing to the Ontario Municipal Board, it means that the city planner (as being a participant in the study) will almost certainly side with the residents, which will give the city more ammunition at the Board. 

Best of all, such a study allows you to update the current by-law to demand (for example) a certain percentage of three bedroom living spaces, and maximum retail size limits for the area as a whole, rather than tackling such issues in piecemeal fashion (as would happen in a situation such as at Ossington). Rather than fighting with a relic of a by-law, you can then fight with something current, and something that you can actually contribute to.