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| Photo shamelessly taken from Jake Tobin Garrett's article about Section 37 by cookedphotos from the Torontoist Flickr Pool. |
Last week it was reported that our beleaguered mayor, Rob Ford was not pleased over some Section 37 benefits that his quotable nemesis, Adam Vaughan, was to receive. Ford was quoted as calling the benefits, a "shakedown" on the developer.
I'm not familiar with the proposal (or the deal) that Vaughan made, but at this point you probably have two questions: "what is Section 37" and "is Ford right, or is he shooting from the hip again?"
What is Section 37?
Section 37 is a piece of Ontario's Planning Act. It reads as follows:
(some conditions follow, but this is the important piece).
37. (1) The council of a local municipality may, in a by-law passed under section 34, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law.
In "legal" speak, this means that council may approve a proposed development (or, zoning by-law amendment; that's what "section 34" deals with) that exceeds the height and density of the original zoning by-law if the developer agrees to give them stuff ("facilities, services or matters as are set out in the by-law"). Perhaps even more bluntly, if the city allows the developer to "do more" with their property than is allowed, the city can ask for stuff in return.
Perhaps a zoning by-law allows a six storey building to be built. The city might allow the developer to build an eight storey building, on the condition that the developer give the city some money with which to create a historical study of the neighbourhood.
Another example might be on a site where a former school was. In exchange for allowing more height and density (to allow say, 25 infill houses rather than 20), perhaps the developer gives the city a piece of their land to be used as a public park.
How should Section 37 be used?
Section 37 benefits tend to be popular with politicians, because they get stuff out of invoking it. And it can be popular with residents, if they agree to trade a larger development for something they want. While the Section 37 benefits can be pricey, there is no arguing that the added density allowed, coupled with potentially avoiding a costly Ontario Municipal Board trial, can make up for it. Of course, some city wards are just naturally prone to more development than others, so Section 37 "monies" (if I might call them that) benefit some wards more from it that others.
Regardless, Section 37 can be a very effective (and flexible) negotiation tool. Rather than arguing for minutia over a building's design, Section 37 recognizes that the developer will be the one who benefits the most by "allowing" a building to exceed the zoning by-law. It's money in their pocket if it means another dozen condos. It can therefore "compensate" a neighbourhood in a way that arguing over the minutia of a building envelope can't, with very tangible results.
But I think that Section 37 can push a bit of a sore spot in planners, and its presence is often abused here in Toronto. If you ask nearly any planner in the Big Smoke, I'm sure they'd tell you that our city has "under-zoned" itself. By refusing to "update" zoning by-laws to properly reflect "good planning" in our city, they've created a mechanism where developers have no choice but to shell out Section 37 money/benefits to the city, even if their proposals are altogether "reasonable".
If we picture an "ideal" zoning by-law, it would be one that encapsulates "proper" planning for any individual property. For a hypothetical piece of land, we could prove (through studies and consultation) say that "25m" is the height maximum, here's a complete list of uses allowed (i.e. clinics, grocers, casinos), and given the nearby transit infrastructure, we should allow 42 car parking spaces (etc.).
If we've done our studies well, we can say that anything larger than 25m is "inappropriate". Perhaps it would cause shadowing on a nearby residential property if the building were 26m, and we as a city don't want that. Because of that, anything above would be "inappropriate". Now, if we're Toronto, we'd probably have a junky by-law that allowed, say, only 16m for height. We could represent it on a MS Paint drawing kind of like this (note: not to scale):
In the above diagram, we have three imaginary buildings (A, B, and C) against a backdrop of three colours. The purple indicates the area where a building would fall in line with the Toronto zoning by-law. The blue area indicates an area where the height would not have a measured impact, whereas the pink area represents heights that might have a negative impact on the neighbourhood.
If a developer proposed building "A" they would come under the current ZBL height, and not have to pay for Section 37 benefits. But what if they proposed building "B"? It would come under the height with no "negative impact", but the councillor could still demand Section 37 benefits, as it technically exceeds the zoning by-law. In the above diagram (and in my opinion), the only building that should "qualify" for Section 37 should be building "C".
This is my point: Section 37 can be a powerful tool, but I think there's a good argument against using it for a proposal unless there is potentially a negative impact on the neighbourhood. In those cases, Section 37 justifies itself, by trading a negative impact for a positive benefit.
I should also be clear that a building in the "pink" area shouldn't be outright denied; rather, that the developer, planning, councillor, and community should sit down and make a deal. But the starting point shouldn't be a crummy zoning by-law that does not reflect the planning reality.
So... is Rob Ford... right?
I think only in the abstract. The Toronto Sun has complained about Section 37 benefits before (I would assume that is where his rage against them comes from), and while there are political issues with using them (they've certainly been inconsistently applied), it's quite inaccurate to call them a "slush fund," given that councillors cannot pocket the money - it must be spent on specific projects as any Section 37 agreement in question dictates - but the current rules are certainly open for criticism.
A more formalized process (i.e. "for every additional square foot of floor space above the zoning by-law, you must give $100 in benefits) would give certainty to both the city and developers. Ensuring there is a process for agreeing to benefits would be helpful too, as is ensuring that the community has a say in where the "monies" go.
In regards to the Toronto Star article I started this piece with, Ford seemed to object to the idea that Vaughan's ward would get a million bucks in benefits despite city planning being against the proposal. He's slung mud at Section 37 before, but mostly at councillors who use it, rather than at the notion that it should exist or not, which to me seems a bit disingenuous. Given what I wrote above, a few backseat comments:
1) It's an awkward time for Ford to now be concerned with what city staff has to say,
2) City Planning's role is, like any bureaucratic position, advisory; council's will reigns supreme, and
3) the details of the development notwithstanding, a proposal that city planning rejects seems like the ideal time to invoke Section 37 benefits.
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