Report to: Development Services Committee Report Date:
SUBJECT: Recommended Section 37 Official Plan Policies and Guidelines for Implementation
PREPARED BY:
Planning and Urban Design Department
RECOMMENDATION:
THAT the Report dated May 4, 2010 entitled “Recommended Section 37 Official Plan Policies and Guidelines for Implementation” be received, and be posted on the Town website and circulated to those members of the public requesting further notification and information on the item;
THAT the draft Official Plan Amendment and the draft Guidelines for Implementation of Section 37 Benefits be forwarded to the next Developers’ Roundtable meeting and anyone requesting notice for review and comment;
THAT following the Developers’ Roundtable meeting, Staff report back to the Development Services Committee with final recommendations on the draft Official Plan Amendment and the Guidelines for Implementation of Section 37;
AND THAT Staff be authorized and directed to do all things necessary to give effect to this resolution.
1. Purpose 2.
Background 3. Discussion 4. Financial
5. Others
(Environmental, Accessibility,
Engage 21st, Affected Units) 6.
Attachment(s)
EXECUTIVE SUMMARY:
Section 37 of the Planning Act is a planning tool that allows the municipality to grant an increase in height and/or density and receive additional services, facilities and matters (community benefits) from the owner of a contributing development. Any increase is subject to adherence to “good planning” principles, neighbourhood compatibility and a reasonable relationship between the negotiated benefit and the approved height and/or density.
Support on proper planning grounds, and meeting all of the requirements of Town Departments and other public agencies, is a requirement of any development proposal regardless of whether Section 37 is applied. To be considered “good planning”, the development resulting from a height and/or density increase must meet acceptable planning standards, particularly as they relate to built form, compatibility of adjacent uses, and adequacy of infrastructure, while addressing all other relevant planning policies of the Official Plan. Section 37 benefits are not expected to mitigate the potential affects of development and hence, anything that is necessary to mitigate potential impacts attributed to development is considered necessary for “good planning” and not considered to be eligible for community benefits. Section 37 benefits can expand or enhance elements of planning approval, but can not compensate for measures that would otherwise be required under the Planning Act, the Official Plan and other statutory documents.
It is at the discretion of Council and the owner to determine whether additional community benefits should be provided concurrent with approval of a development and whether or not it is appropriate to formally recognize those benefits through the use of Section 37. Council’s decision on whether the planning merits of an increase in height and/or density are acceptable can and should remain independent of a decision on whether additional community benefits should be provided in the development through the use of Section 37.
The benefits achieved through the use of Section 37 may be used to obtain and fund facilities, services and matters that are not typically funded through development charges or other Planning Act contribution tools. Provided all Official Plan policies are satisfied, Section 37 community benefits in the form of cash contributions or services in kind may be secured towards infrastructure services and facilities that address service needs or deficiencies in the existing community or services for new growth, either of which cannot be funded or are only partly funded by development charges and other planning contributions.
There should be a reasonable planning relationship between the Section 37 benefits and the increase in height and/or density in the contributing development. The provision of community benefits on-site or within close geographic proximity would be a priority. The services, facilities or matters provided may also benefit the immediate community or the Town as a whole. The threshold for height and density increases shall be set out in the Official Plan and/or Secondary Plan and any zoning by-law in excess of the base development limit (where established) or the maximum development limit established in said plans may be considered eligible for Section 37 community benefits.
Intensification, or increasing the height and/or density of development, within the Town’s current settlement area is a key component of the Town’s emerging growth management strategy. Directing new growth to identified intensification areas on rapid transit corridors is supported on planning grounds, assists in mitigating the potential impacts of increased height and/or density, and improves the compatibility of new development with existing Markham neighbourhoods. Section 37 can play a key role in delivery of the Town’s Intensification Strategy by providing the opportunity for the Town to obtain additional community benefits in areas of increased residential and employment activity.
The proposed Official Plan Amendment introduces new provisions respecting the use of Section 37, including an expanded list of community benefits that could be achieved based on local community needs, intensification issues in the area, and the objectives of the Official Plan with priority given to provision of benefits in proximity to the development proposal. (See Appendix ‘B’). The proposed Guidelines for Implementation of Section 37 Benefits are intended to assist staff and potential contributing landowners in their negotiations of potential Section 37 benefits. (See Appendix ‘C’). Among other things, the proposed policy framework and guidelines establish a protocol for negotiating and securing Section 37 benefits which provides staff, the development community and the public, with a clear and consistent direction on the use of Section 37 and the objectives that Council would like to achieve through its application.
Staff are recommending that the proposed Official Plan Amendment and the proposed Guidelines for Implementation of Section 37 Benefits be forwarded to the next Developers’ Roundtable meeting and to those requesting notice, for review and comment.
PURPOSE:
The purpose of this report is to provide Development
Services Committee with additional information on proposed new Official Plan
provisions respecting the use of Section 37 of the Planning Act. This report also provides an update on a set
of proposed Guidelines for Implementation of Section 37 Benefits, which are
intended to guide Section 37 negotiations and structure agreements. As well, response is provided to feedback
received at the public meeting held on
BACKGROUND:
At its meeting of
entitled “ Toward a Growth Management Strategy: Section 37
Official Plan and Guidelines.” The report outlined a Town-initiated review of
the existing Official Plan policies respecting the use of Section 37 of the Planning
Act and recommended a new policy framework and guidelines for the use of
Section 37, to assist the Town in implementing its Intensification Strategy
within the context of
At a public meeting held on
DISCUSSION:
Draft Policy
Framework and Guidelines for Implementation of Section 37
A draft Official Plan Amendment and draft set of Guidelines for Implementation of Section 37 Benefits are included in Appendices ‘B’ and ‘C’ attached to this report. The proposed policy framework outlines new provisions respecting the use of Section 37 while the proposed guidelines establish a protocol for negotiating and securing Section 37 benefits.
Taken together, the policies and guidelines provide staff, the development community and the public, with a framework for the use of Section 37 and the objectives that Council would like to achieve through its application. Highlights of the documents are outlined in this report.
As well, a process flowchart outlining how Section 37 could be applied to a development application requesting a height and/or density increase is included. In summary, the Development Approval Process and Section 37 Process are linked timing wise only if Council agrees that the development achieves “good planning” and Council and the Owner formally agree to apply Section 37 and enact a zoning by-law, subject to a Section 37 agreement, to achieve additional community benefits.
Role of Section 37
Subject to appropriate Official Plan provisions, Section 37 of the Planning Act authorizes municipalities to pass zoning by-laws to increase the height and/or density of development beyond current zoning permissions, where the increase does not compromise “good planning”. In return for permitting an increase in height and/or density under a Section 37 zoning by-law, Council can request the provision of community benefits by the owner of the development. The community benefits obtained through the Section 37 zoning by-law are those that would not otherwise be provided for through the Planning Act or the Development Charges Act and may be of particular benefit to a specific area and/or the municipality as whole. The owner of the development must agree to the use of a Section 37 zoning by-law to permit the increases and is required to enter into a Section 37 agreement with the municipality to secure the community benefits.
Past practice with
Section 37
The Town’s Official Plan currently includes policies that allow Council to enact a zoning by-law and apply Section 37 provisions to a development proposal requesting height and/or density increases. In return, the owner granted the Section 37 increase in development rights is required to provide the facilities, services or matters as set out in the provisions of the by-law and an agreement between the Town and the owner. Appendix ‘A’ outlines the current Official Plan provisions for use of Section 37.
Over the years
Current practice with
Section 37
In 2008, Council approved a Section 37 zoning by-law approach for the Liberty development in the Yonge Steeles Corridor area, to permit an increase in height and density, subject to, among other things, the owner entering in a Section 37 agreement with the Town to secure a contribution valued at $2 million towards community services within Ward 1 or Thornhill, as a first priority. The Section 37 negotiations between the Town and the owner took place only after a settlement was reached on the appropriate height and density of the development proposal. Therefore, Council and the owners agreement was negotiated after an acceptable development proposal representing “good planning” was achieved. The potential application of Section 37 benefits is also under discussion relative to a number of more recent development applications in identified intensification nodes and corridors.
Potential application
of Section 37
In response to a Provincial, Regional and Town policy shift
toward growth management that encourages intensification within the built up
area, there have been a number of requests from
development proponents for increases in height and/or density, above
that currently provided for in the Town’s Secondary Plans and Zoning
By-laws. These include development
applications throughout the Town’s identified intensification areas including
Markham Centre, the Langstaff Gateway, Cornell Centre, the Yonge/Steeles
Corridor, Milliken Centre,
Intensification, or increasing the height and/or density of
development, within the Town’s current settlement area is a key component of
the Town’s emerging growth management strategy.
The intent of
Determination of
applicability of Section 37
The Town can choose to engage in the application of Section 37, or not, depending on its suitability in a particular circumstance. If applied, the terms of a Section 37 agreement are determined through negotiations between the owner and the Town. In considering requests for height and/or density increases, Council not only wants to ensure the development meets Town policy objectives and has the necessary infrastructure in place to support it, but also ensures that opportunities for additional community benefits, beyond what may be obtained through development approvals, can be realized.
Good Planning is a
pre-requisite of applying Section 37
In order to be considered eligible for the application of Section 37, the proposed development must first be considered to represent “good planning.” Good planning includes addressing all other policies contained in the Official Plan, including implementing plans and other documents and urban design policies and objectives (ie. Secondary Plan, Intensification Strategy, and Built Form, Massing and Height policies and guidelines, etc.) Planning policy objectives, and the recommended form and conditions of the development approval, should be established prior to Town staff entering into negotiations with the owner regarding what additional community benefits might be obtained through applying the Town’s Section 37 provisions.
Matters required to comply with authorized requirements of the Town and public agencies should be provided by the owner as a base condition of development approval notwithstanding any use of Section 37. This would include any matters necessary to mitigate the potential impacts of the development and include, among other things, the relationship of a development to its context, the adjacent street, the creation of a good public realm, providing any necessary improvements to municipal infrastructure, and a harmonious relationship to the natural environment. Under the Planning Act, sustainable design and good architecture are expected in all developments and are not eligible as Section 37 benefits.
Section 37 benefits are
above Development Charges and Planning Act contributions
The benefits achieved through the use of Section 37 may be used for facilities, services and matters that are not typically funded through development charges or other Planning Act contribution tools. For example, Section 37 can be utilized to provide for community services and facilities, public parking facilities and enhanced public transit, and a range of other benefits which are over and above what could normally be financed through development charges and beyond improvements directly attributable to developments.
Provided all Official Plan policies are satisfied, Section 37 community benefits in the form of cash contributions may be secured towards infrastructure services and facilities that address service needs or deficiencies in the existing community or services for future growth, either of which cannot be funded or are only partly funded by development charges. Section 37 can also be utilized to provide for infrastructure not normally covered by Plan of Subdivision or Site Plan approvals such as increased amounts of on-site open space or facilities such as day care centres, community centres, recreational facilities, environmental restoration and enhancement, affordable housing including housing for seniors, and public art. There will be no exemptions for developments subject to Section 37 Agreements from development charges or parks contributions under Section 42 of the Planning Act.
On or off site
provision of Section 37 benefits
There should be a reasonable planning relationship between
the Section 37 benefits and the increase in height and/or density in the
contributing development. The provision
of community benefits on-site or within close geographic proximity would be a
priority. The services, facilities or
matters provided may also benefit the immediate community or the Town as a
whole. Where there exists a Town wide
fund or program to address particular needs which cannot be economically
provided on site, but which can be related to the development, such as the
provision of affordable housing or public art, contributions to these funds or
programs can be considered a benefit to the Town through Section 37.
Threshold height and density
and Threshold size of developments under Section 37
Most municipalities have density provisions in their
Official Plans (Secondary Plans) as well as their zoning by-laws. In
Where maximum height and density thresholds are provided in Secondary Plans, they are often defined by built form, urban design objectives, community resources, infrastructure capacity and compatibility with land uses and areas within and beyond the Secondary Plan boundaries. These maximum development permissions are usually assigned to a Development Block which may comprise one or more development parcels of developable land, exclusive of public roads and parks and open space. The underlying zoning by-law for the area will need to reflect the development limit established in the Secondary Plan for each Development Block.
In some instances, individual buildings on development parcels within a Development Block, may achieve more or less than the maximum development limit established in the underlying zoning by-law, provided the development is supportable on planning grounds, and the built form and compatibility objectives are maintained, and there is a zoning by-law amendment where:
- the increase in height and/or density does not exceed the overall maximum density for the Development Block;
- the increase in height and/or density may be achieved through density and height transfers within the Development Block; and
- the increase in height and/or density may be considered eligible for Section 37 community benefits.
In other instances, Council may consider an Official Plan Amendment and Zoning By-law to permit the increase in height and/or density in excess of the maximum density for the Development Block, to achieve additional development incentives or Section 37 community benefits, provided the development is consistent with the other objectives of the Official Plan and meets all applicable built form and compatibility objectives, and there is adequate infrastructure available to support the increase.
The rationale in both instances is that the process of changing the development limits, above what they were in the Secondary Plan, represents an increase in height and/or density as described in Section 37 of the Planning Act and therefore meets the criteria in the Planning Act for applying Section 37 benefits.
It is proposed, as a guideline for the application of
Section 37, that the size threshold for the contributing development must be
larger than 5000 sq m, and where there is an increase in density regardless of
whether there is an increase in height, the proposed density must exceed 1500
sq m over and above what would otherwise be permitted. In general, Section 37 will not apply to
non-profit development and developments that are under 4 storeys in height.
Determination of appropriate
Section 37 Benefits
The Section 37 benefits will be negotiated with the owner on
a case by case basis and will be based on a reasonable relationship between the
increased residential and employment activity resulting from the Town granting
the increase in height and/or density, and an appropriate benefit to identified
community needs. In this regard, the community
benefits in relation to the height and/or density increases granted will vary
from project to project or from one area of the Town to another. A determination of community needs in response
to the increased activities resulting from an increase in height and/or density
of a development will be used as a guideline for negotiating an appropriate Section
37 benefit.
Determination of appropriate
types of Section 37 Benefits
In intensification areas, it is advantageous to determine local priorities and needs for community benefits in advance of development applications. An analysis and identification of existing and potential needs and services in an intensification area would assist in determining the appropriate type(s) and priority of community benefits to be considered eligible for Section 37 contributions. This analysis could be compiled at the Secondary Plan stage and also identify the appropriate provision and costing of the community benefits.
To prepare for a possible application of Section 37 and address the issue of transparency, it is critical to have the local Councillor and other Councillors who may be interested, in consultation with Town staff, the local community and the relevant service providers, identify local and Town-wide priorities for potential community benefits.
Among other things, a list of potential Section 37 community
benefit priorities will:
·
provide the Town with a better position for
negotiating Section 37 benefits
·
result in timely, efficient discussions with
owners of contributing development
·
avoid ad hoc, uncoordinated decisions by Town
staff, Council and the community
·
assist the community in realizing greater
benefits
·
enhance consistency and credibility of the use
of Section 37
·
assist in the implementation of existing plans,
strategies, studies (ie. Secondary Plans, Intensification Strategy, Local Area
Studies)
·
augment the capital budget process (ie. Identify
alternate sources of revenue)
·
identify local projects (ie. Park improvements)
· assist other Departments/agencies in establishing priorities for services, facilities
and matters (Community Benefits)
An example of a local priority or need for community
benefits identified through a public process is the Markham Centre Greenlands
Master Plan. This Master Plan was
developed, with input from the Markham Centre Advisory Committee (ie.
Greenlands Working Sub-Group), to address issues related to the restoration,
management and patterns of use of the corridors of the
Expanding the list of
eligible Section 37 benefits
The range of community benefits currently listed in the Official Plan that could be eligible for Section 37 benefits is quite limited (see current Official Plan provisions outlined in Appendix ‘A’). It is proposed that the current list of community benefits be expanded to also include:
1. The conservation and improvement of cultural heritage areas or buildings. This would include preservation of cultural heritage areas and buildings by securing both conservation and improvements within a prescribed timeframe.
2. The preservation of woodlots, environmentally significant areas and enhancement areas which would not be accepted as parkland dedication. This would include enhancement areas identified through the Town’s Environmental Policy Review and Consolidation.
3. A substantial contribution to the urban forest on public land. This could include cash contributions to the Town-wide Markham Trees for Tomorrow tree planting program.
4. The provision of public access to ravines and valleys. This would assist in the implementation of a linked Natural Heritage System.
5. The provision of affordable and special needs housing including housing for seniors. This would include new affordable rental and ownership housing units either on site or, at the owner’s discretion and where the Town is in agreement, a cash contribution to a benefit fund for affordable and special needs housing.
6. The conservation and replacement of rental housing. This would include preservation of existing rental housing by securing both rental tenure and improvements to ensure the on-going viability.
7. Enhanced connections to transit facilities. This would include enhanced pedestrian and cycling connections, public access across private land, and internal transit connections (transit circulator).
8. Enhanced
improvements to transit facilities. This would include enhanced improvements
such as multi-modal hub transit concourse connections.
9. Provision
of Public Parking Facilities. This
would include the construction of municipally controlled public parking
garages.
10. Protection of Significant Views. This would secure one or more significant views to an important natural or built feature.
11. Public
Art. This would include an on-site
public art installation or a cash contribution to either a specific off-site
installation or a fund for public art purposes.
12. Non profit cultural facilities. This would include expansion of existing Town cultural facilities and the addition of new cultural facilities including library facilities.
13. Other
improvements identified in Council initiated studies. This would allow the Town to identify other
improvements emerging through local area studies or other opportunities arising
through Council initiated studies.
Protocol for negotiating and
securing Section 37 Benefits
Density increases will be approved by an amendment to the Zoning By-law and after due process including public consultation. A Section 37 agreement will be entered into between the developer and the City prior to the enactment of the Zoning By-law.
Planning staff, who are responsible for making recommendations on development applications to Council in accordance with the Planning Act and other Provincial policy, will be the lead negotiators with developments that are the subject of Section 37 bonus discussions. Planning staff will also coordinate input from other departments on the appropriate provision and costing of community benefits. Local Councillors will be consulted regarding Section 37 negotiations and will provide input into the nature of community benefits that might be appropriate in particular circumstances. Local communities also will be consulted, as appropriate.
In addition to securing community benefits that are
directly related to density and/or height increases, Section 37 agreements may
include other matters that may be important to the Town to meet its Official
Plan objectives, but which may fall outside of the purview of other agreements,
such as the protection of rental housing or heritage features.
These matters may be secured in a
Section 37 agreement as a legal matter.
FINANCIAL CONSIDERATIONS:
There are no financial implications at
this time.
BUSINESS UNITS CONSULTED AND AFFECTED:
The Town Solicitor has been
engaged in discussions on the application of Section 37 policies as well as the
review of the proposed policy framework and guidelines for use of Section 37 of
the Planning Act.
RECOMMENDED BY:
______________________________ __________________________________
Jim Baird, M.C.I.P., R.P.P T.J. Lambe, M.C.I.P., R.P.P.
Commissioner of Development Services Manager of Policy and Research
ATTACHMENTS:
Appendix ‘A’ - Existing Official Plan Provisions
Appendix ‘B’ - Draft Official Plan Amendment
Appendix ‘C’ - Draft Guidelines for the Implementation of Section 37 Benefits
Q:\Development\Planning\MISC\MI515
Section 37 Policies