Exit 438-86: By-Law Reform in Toronto

Even “hardcore” real estate practitioners forget just how recent zoning by-laws are. Juxtaposed against the millennia-old heritage of many tenets of real property law, the introduction of municipal zoning by-laws is a comparatively new phenomenon. In Ontario, the passage of the then-new Planning Act in 1946 paved the way for modern comprehensive zoning by-laws in this province, with the then Township of Etobicoke entering the record books as Ontario’s first “planned community” with the passage of its first zoning by-law and official plan in 1949. North York and former City of Toronto soon followed suit with their own comprehensive zoning by-laws in 1952, and York, East York and Scarborough followed thereafter with theirs by the end of the late 1950’s.

Of course, most builders in the Greater Toronto Area are generally quite familiar with the ubiquitous City of Toronto By-law 438-86, Toronto’s general comprehensive zoning by-law which, in its own terms, is designed “to regulate the use of land and the erection, use, bulk, height, spacing of and other matters relating to buildings and structures and to prohibit certain uses of lands and the erection and use of certain buildings and structures in various areas of the City of Toronto.”

Although proclaimed as the City of Toronto’s “comprehensive” zoning by-law, the same builders who are familiar with By-law 438-86 are also all too familiar with how genuinely piecemeal and less-than-comprehensive By-law 438-86 really is. 438-86 is in fact only one of over 40 such “comprehensive” zoning by-laws that still affect various parts of the City of Toronto. Many of these “local” comprehensive zoning by-laws are really just carry-overs from the books of the municipalities that amalgamated to form the Municipality of Metropolitan Toronto in 1998 (i. e. Etobicoke, York, East York, North York, Toronto and Scarborough, collectively referred to in this article as the “Boroughs” even though all but East York had graduated from “borough” status to full city status long before amalgamating).

According to the Overview Presentation of the new comprehensive zoning by-law released in November of 2009 by Toronto City Planning (the “Overview Presentation”), the patchwork of applicable zoning by-laws was actually more than just lingering legacy by-laws from the Boroughs. In fact, even when the Boroughs were issuing their own comprehensive zoning by-laws, there were still pockets of the City and the Boroughs that, through historical happenstance, were still governed by local “neighbourhood” zoning by-laws (e. g. Leaside, Mimico and New Toronto), and many of these local neighbourhood zoning by-laws survived amalgamation and are still applicable to this day.

To the welcome relief of many, Toronto is on the verge of seeing its way out of the zoning desert, with the pending introduction of its first major comprehensive zoning overhaul as an amalgamated city. Planning for the new zoning by-law began in earnest at about this time last year, when the City of Toronto first officially announced its intention to harmonize these competing comprehensive zoning by-laws. After numerous internal staff reports and presentations and eight public “open house” presentations, the latest revised draft of this new zoning by-law, widely considered to be the penultimate draft version, was released on May 27, 2010. As of the writing of this column, the text of the new by-law and accompanying zoning maps are physically available for public review at the City of Toronto’s clerk’s offices in the Etobicoke, North York, Scarborough Civic Centres and at City Hall as well as online at the City of Toronto’s website ( http://www.toronto.ca/zoning).

Paraphrasing the Overview Presentation, the new zoning by-law was drafted using a “staff-based approach,” with the view to preserving the true intent of all of the existing by-laws, while at the same time harmonizing the terms and language used therein and conforming all existing uses with those dictated by the latest Official Plan. The new zoning by-law also introduces thoroughly modern parking and loading standards throughout the City and will curb what had been cases of inconsistent application, interpretation and enforcement of some City regulations by converting frequently applied regulations into fixed provisions of the new draft zoning by-law based on the then current “best practices” relating to such regulations.

While the overall impact of this legislative reform seems more evolutionary than revolutionary, with the consistent underlying theme of harmonization and consolidation throughout, there are some new provisions that go beyond harmonization or standardization. For instance, the height of homes will now be measured to the true top of the roof (rather than the arguably unintuitive mid-point of the roof, as is currently permitted under By-law 438-86), but with a new higher standard of 10 metres for the maximum height of homes. Likewise, there will be new formulas for the calculation of front, rear and side yard setbacks, and there will be an outright city-wide ban on reverse-sloping driveways and below grade house garages.

Even the logistics of by-law maintenance and availment will be altered by this new zoning by-law. Although periodic consolidations of By-law 438-86 have been available electronically for some time, the new zoning by-law will be housed electronically and available online and current on the internet from the get-go. This will increase ease of access, improve customer service, and allow up-to-date content (currently anticipated to be in “real time” as of the very latest Council meetings). The City of Toronto is betting that, one truly comprehensive zoning by-law, using one universally common set of terms, will eventually lead to significantly clearer interpretation and more consistent results for all Torontonians.

Of course, the accumulated wisdom of practitioners familiar with the soon to be superseded By-law 438-86 (or, for that matter, any of the other forty-plus comprehensive zoning by-laws currently still on the books) is not yet obsolete. The new zoning by-law will include a number of provisions that “grandfather” existing non-compliant properties. Also, in cases where a property continues a use that is currently lawful under By-law 438-86 (or one of the other existing zoning by-laws) but that will not be permitted under the new zoning by-law, the doctrine of legal non-conforming use will still apply, and there is nothing in the draft new zoning by-law that seems intended to curtail legal non-conforming uses.

As we go to press one final meeting of the Planning and Growth Management Committee is scheduled for June 16, 2010 to discuss amendments to the new draft zoning by-law before it goes to Council. Toronto, your brave new zoning world awaits.

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