1. EXCHANGE OF INCREASED HEIGHT OR
DENSITY FOR COMMUNITY BENEFITS - IMPLEMENTATION GUIDELINES ÉCHANGE D’UNE AUGMENTATION DE LA HAUTEUR OU DE LA
DENSITÉ DES IMMEUBLES CONTRE DES AVANTAGES POUR LA COLLECTIVITÉ. |
Committee
recommendationS as amended
That Council:
1.
Approve the
“Guidelines and Protocol for the Implementation of Section 37 of the Planning Act” contained in Document 2;
and
2.
Approve an
amendment to the Delegation of Authority By-law, By-law Number 2011-28,
to delegate signing authority for Section 37 Agreements to the General Manager,
Planning and Growth Management, with the concurrence of the Councillor for the
ward in which the development project is located.
3.
Direct staff
to return to Planning Committee in March 2013 with a report that provides an
assessment of the implementation of the Section 37 Guidelines and Protocol and
in particular a review of the appropriateness of the land value uplift
methodology and the application of the policy in suburban areas.
RecommandationS
MODIFIÉES DU Comité
Que le Conseil :
1.
adopte « les lignes directrices
et le protocole visant la mise en application de l’article 37 de la Loi sur l’aménagement du territoire »
énoncés au document 2; et
2.
approuve une modification au
Règlement no 2011-28, Règlement sur la délégation de
pouvoirs, afin de déléguer au gestionnaire principal, Urbanisme et Gestion de
la croissance, le pouvoir de signer les ententes en vertu de l’article 37, avec
l’accord du conseiller représentant le quartier visé par la demande.
3.
enjoindre au personnel de se présenter de
nouveau au Comité de l’urbanisme en mars 2013 avec un rapport qui fournira une
évaluation de la mise en œuvre de l’article 37 intitulé Lignes directrices et
protocole et, surtout, un examen de la pertinence de la méthodologie
d’augmentation de la valeur des terrains et l’application de la politique dans
les secteurs suburbains.
Documentation
1. Deputy
City Manager's report, Infrastructure
Services and Community Sustainability, dated 1 February 2012 (ACS2012-ICS-PGM-0010).
2. Extract of Minutes, Planning Committee
meeting of 14 February 2012.
Report
to/Rapport au :
Comité de l'urbanisme
and Council / et au Conseil
1 February 2012 / le 1 février 2012
Submitted by/Soumis par : Nancy
Schepers, Deputy City Manager/Directrice municipale adjointe, Infrastructure Services and Community
Sustainability/Services d’infrastructure et Viabilité des collectivités
Contact Person / Personne-ressource: Richard
Kilstrom, Manager/Gestionnaire,
Policy Development and Urban Design/Élaboration
de la politique et conception urbaine,
Planning and Growth Management/Urbanisme et
Gestion de la croissance
(613) 580-2424 x22653 Richard.Kilstrom@ottawa.ca
Ref N°: ACS2012-ICS-PGM-0010 |
That the Planning Committee recommend
that Council approve:
1.
The “Guidelines and Protocol for the
Implementation of Section 37 of the Planning
Act” contained in Document 2; and
2.
An amendment to the Delegation of Authority
By-law, By-law Number 2002-4, to delegate signing authority for Section 37
Agreements to the General Manager, Planning and Growth Management, with the
concurrence of the Councillor for the ward in which the development project is
located.
3.
Direct staff to return to Planning Committee
in March 2013 with a report that provides an assessment of the implementation
of the Section 37 Guidelines and Protocol and in particular a review of the
appropriateness of the land value uplift methodology and the application of the
policy in suburban areas.
Que le Comité de l'urbanisme recommande au
Conseil :
1.
d’adopter
« les lignes directrices et le protocole visant la mise en application de
l’article 37 de la Loi sur l’aménagement du
territoire » énoncés au document 2; et
2.
d’approuver
une modification au Règlement no 2002-4, Règlement sur la délégation
de pouvoirs, afin de déléguer au gestionnaire principal, Urbanisme et Gestion
de la croissance, le pouvoir de signer les ententes en vertu de l’article 37,
avec l’accord du conseiller représentant le quartier visé par la demande.
3.
Enjoindre au personnel de se présenter de nouveau au Comité de
l’urbanisme en mars 2013 avec un rapport qui fournira une évaluation de la mise
en œuvre de l’article 37 intitulé Lignes directrices et protocole et, surtout,
un examen de la pertinence de la méthodologie d’augmentation de la valeur des
terrains et l’application de la politique dans les secteurs suburbains.
EXECUTIVE SUMMARY
Assumptions and Analysis
Section 37 of the Planning Act, provides municipalities the authority to share in the
increased value that may result from a request for increased height and/or density
of a development project. The City has a
policy in its Official Plan as required by the Planning Act to enable agreements to be negotiated for community
benefits through the development review process in consultation with the Ward
Councillor and the local community. In
2010, Council, as part of the work plan that accompanied the Intensification
Implementation Group Charter, directed staff to develop guidelines and protocol
for the implementation of Section 37 agreements for Council consideration.
Staff have done so and this report recommends approval of guidelines and
protocols to guide this significant change to the development review process.
Financial Implications
To ensure funds are tracked and held in accordance with each agreement,
a deferred revenue account will be established for each Section 37 community
benefit cash contribution.
The establishment of the community benefit project, the spending
authority, and additional funds (if required/applicable); will be subject to
Council approval through future years’ capital budget processes.
Consultation
The Greater Ottawa Homebuilders Association (GOHBA), the Building
Owners and Managers Association (BOMA), the Federation of Citizens’
Associations (FCA), Community Associations and the City’s Advisory Committees were
circulated draft copies of the guidelines for comments. Consultation meetings were held with the
public groups as well as with the industry to obtain their feedback. The development industry formed a working group
to review the guidelines and several meetings were held with staff. The guidelines and protocol have been modified
to reflect some of the changes put forward by all groups. Details of the
consultation and staff’s responses are contained in Document 5.
RÉSUMÉ
Hypothèses et analyse
L’article 37 de la
Loi sur l’aménagement du territoire, L.R.O.1990, confère aux municipalités
une part de la plus-value pouvant résulter d’une demande d’accroissement de la
hauteur et/ou de la densité d’un projet d’aménagement. La Ville applique une
politique de son Plan officiel, conformément à la Loi sur l’aménagement du territoire, qui permet la négociation
d’ententes au profit de la collectivité, dans le cadre du processus d’examen
des demandes d’aménagement, en consultation avec le conseiller et les résidents
du quartier visé. En 2010, le Conseil a chargé le personnel, dans le cadre du
plan de travail qui accompagnait la Charte du groupe de travail pour la mise en
œuvre de la densification, d’élaborer des lignes directrices et un
protocole pour l’application des ententes de l’article 37, aux fins d’examen par
le Conseil. Le personnel s’est donc exécuté et ce rapport recommande
l’approbation des lignes directrices et du protocole, en vue d’appliquer
l’article 37 à l’échelle municipale. Le personnel l’a fait et le présent
rapport recommande l’approbation des lignes directrices et des protocoles afin
d’orienter les changements importants apportés au processus d’examen des
projets d’aménagement.
Répercussions
financières
Pour garantir le
suivi et l’attribution des fonds nécessaires à chaque entente, un compte de revenus reportés sera créé pour chaque
contribution pécuniaire faite pour un avantage à la collectivité en vertu de
l’article 37.
La mise en place du
projet d’avantages à la collectivité, l’autorisation de dépenser et les fonds
supplémentaires (si nécessaire ou le cas échéant) devront être approuvés par le
Conseil dans le cadre des processus futurs d’établissement des budgets annuels
d’immobilisation.
Consultation
La Greater Ottawa
Homebuilders Association (GOHBA), la Building Owners and Managers Association
(BOMA), la Fédération des associations de citoyens,
les associations communautaires et les comités consultatifs de la Ville ont
reçu des versions provisoires des lignes directrices, aux fins de commentaires.
Des réunions de consultation ont été organisées avec les groupes publics ainsi
qu’avec des représentants du secteur de l’aménagement afin de prendre
connaissance de leurs commentaires. Le secteur de l’aménagement a formé un
groupe de travail chargé d’examiner les lignes directrices et plusieurs
réunions ont été menées avec le personnel. Les lignes directrices et le
protocole ont été modifiés afin de tenir compte de certains des changements
proposés par l’ensemble des groupes. Les détails du processus de consultation
et des réponses du personnel sont exposés dans le document 5.
Section 37 of the Planning Act
provides municipalities with the authority to share in the increased economic
uplift that may result from the increased height and/or density of a
development project. Securing community
benefits through the development review process has been a successful tool in
building public acceptance of intensification while also benefiting developers
and neighbourhoods in other major Canadian cities including Vancouver and
Toronto. In Ottawa, Council has
considered the use of Section 37 in the past.
The City has a policy in its Official Plan as required by the Planning Act (see Document 1) to enable agreements to be negotiated
through the development review process in consultation with the Ward Councillor
and the local community. Council,
however, has not yet approved a set of guidelines and an implementation
protocol to make use of Section 37.
This initiative was included in the work plan that accompanied the
Intensification Implementation Group Charter approved in 2010 by Council. It is also included in the Planning and
Growth Management Department’s Term of Council work plan. Staff prepared a draft set of guidelines that
were circulated to Council members, the development industry, Community Associations
and the City’s Advisory Committees for their comments. Consultation sessions were held with the
development industry and community groups as well as the Intensification
Implementation Sponsors Group of Council. The development industry chose to
create a working group to consider the guidelines and have held several
meetings with staff. The purpose of this
report is to seek Council’s approval of a set of guidelines and protocols for
the development industry, the community, the Ward Councillor, and the City to
follow in negotiating Section 37 agreements as set out in Document 2.
Guidelines to assist in the implementation of density increases for
community benefits
Under subsection 37(2) of the Planning
Act, municipalities are required to have an Official Plan in effect “that
contains provisions relating to the authorization of increases in height and
density of development” as a condition for the inclusion of community benefits
in a Zoning By-law. The Act provides
municipalities with a great deal of discretion for the definition of community
benefit. Ottawa’s practice is guided by
the provisions in Section 5.2.1 (11) of its Official Plan. This section also
details the types of community benefits that would be considered acceptable in
exchange for increases in height and/or density (see Document 1).
Unlike other municipalities, the City has never executed a Section 37
agreement. Staff have reviewed the
Section 37 policies, implementation plans and protocols of several Ontario
municipalities, including Toronto, Mississauga, Kingston and London. Their
experience with Section 37 varies considerably. Some have been involved in as few as two
agreements so far whereas Toronto has executed over 300 agreements over the
past decade from both residential and commercial office projects. In these municipalities the greatest success
with Section 37 has occurred with projects located in the downtown, inner city
neighbourhoods and other significant areas such as waterfronts and transit
corridors.
Section 37 is not a tool for promoting density. The fundamental
requirement is that the proposal represents good planning. Developments must respect good planning
principles in terms of appropriate densities and building form and conform to
the City’s design guidelines. The term
“density incentives” has come to replace the more commonly used term “density
bonusing”, as it more accurately conveys a message that increased density is an
incentive for a developer to provide a benefit, and that these agreements are
intended to be negotiated. In those
cities where density incentives have been applied, the common practice is by
way of negotiated agreements (i.e. site-specific negotiations), which are then
registered on title. In the Ottawa context, the use of Section 37 is not to be
viewed as an “incentive.” It is a vehicle among others through which good development
can be made better.
Section 37 is not meant to be used as a vehicle to generate general
revenue for non-specific or indeterminate purposes. The funds obtained through Section 37 Agreements
may be used for items that are over and above those typically funded through
development charges and other contribution tools such as those items obtained
through the development approvals process.
For example, these contributions can be used for affordable housing, for
greenspace above the required parkland contribution, for daycare spaces and for
other such amenities. The renewed action
plan for arts, heritage and culture encourages the inclusion of cultural
amenities in new developments through the use of Section 37 contributions. Public cultural facilities and the
conservation of heritage facilities are included in the community benefits outlined
in Document 1.
As a general principle, there should be a reasonable planning
relationship between the community benefit secured under Section 37 and the
proposed development. A planning relationship
exists if the contributing development benefits from the amenity or facility,
as well as the local community. The
amenity is provided to maintain or improve existing community liveability and
the quality of life in the area that accommodates the higher density.
How and where Section 37 can be implemented
Zoning across Ottawa is being continually updated to bring it into
conformity with the Official Plan. The
new Zoning By-law was completed and adopted by City Council in 2008 and is now
almost entirely in full force and effect.
The new by-law has been crafted to provide greater flexibility in
building design in keeping with the policies of the Official Plan. For example:
In the 2011-2014 Work Plan, the Planning and Growth Management
Department is undertaking several planning exercises with the aim of providing
certainty as to where intensification will be targeted and where communities
will continue to be characterized by low-rise buildings and remain stable. In particular, staff will review
opportunities to bring the Zoning By-law further in-line with Official Plan
policies. The zoning on mainstreets will
be reviewed, and mixed use centres along the LRT route will have Transit
Oriented Design Plans (TOPD) developed. Staff
has commenced work on the Cyrville, VIA Station and St. Laurent TOPD studies.
Height and density incentives will work best where development is
considered desirable both from an economic perspective and from a community
acceptance point of view. Density
incentives are generally associated with areas that are experiencing, or are
expected to experience, sustained pressures for growth. Such locations include:
·
Central
Area - The Central Area is considered to be the economic heart of the city. Over time, its distinctive qualities will be
enhanced by providing for a greater range of uses, paying particular attention
to the quality of urban design and ensuring residential uses are
strengthened. Maximum heights for much
of the Central Area are governed by the key views established in the Official
Plan and by the corresponding angular height planes in the Zoning By-law which
work together to protect the visual integrity and symbolic primacy of the
Parliament Buildings and other national symbols. The height planes limit the heights of new
buildings. Generally, the height planes
permit increased heights the farther the proposed building is from the
Parliament Buildings.
·
Mixed
Use Centres - Mixed-use Centres are identified as strategic locations on the
rapid‑transit network, which lie adjacent to major roads. They constitute a critical element in the
City's growth management strategy with high potential to achieve compact and
mixed-use development, and they represent opportunities for substantial growth.
·
Rapid
Transit Stations - Opportunities exist at some rapid transit stations to enter
into partnerships with developers for increased density through the use of air
rights in return for improvements to these stations and their environs, or for
other identified amenities. This could
also involve the new LRT stations.
·
Arterial
Mainstreets - Arterial Mainstreets generally present an urban fabric of larger
lots, larger buildings and varied setbacks.
It is anticipated that there will be a gradual transition to more
intensive forms of development along these corridors, including higher density
residential uses.
·
Brownfields
- These are formerly developed, sometimes contaminated sites that are vacant or
may contain derelict or underutilized buildings. Brownfields are considered to be prime sites
for redevelopment. The City’s Brownfields
program currently provides significant tax incentives for site remediation
purposes.
·
Community
Design Plan Areas - Community Design Plans (CDP) are being or have been developed
for communities or neighbourhoods that will undergo significant change (i.e.
Mid‑Centretown, West Wellington, Old Ottawa East and Bank Street South). The Community Design Plan is intended to
translate the principles and policies of the Official Plan to the community
scale. It is not a tool to stop growth and redevelopment from occurring -
rather it is to provide a blueprint for how all parties that are involved in
the development review process desire growth to take place. During the course
of preparing such a plan, the cumulative impact of development in the study
area is assessed and the demand for new and/or enhanced amenities is
determined. Individual Community Design
Plans will provide more specific policies on the application of height and
density provisions.
There are other locations in the city which
may support higher densities, for example on arterial roads that are not
designated as Design Priority Areas. Opportunities
may arise at such locations to negotiate a Section 37 benefit and therefore limitations
should not be placed on where density incentives can be used. Therefore, Section 37 should be considered as
a planning tool to be used city-wide. Section
37 however should not be applicable to new suburban development in developing
communities, known as Greenfield developments, where development is proceeding
according to a plan of subdivision in conformity with a Community Design Plan.
Should a developer contemplate zoning that
exceeds the Community Design Plan vision, or where redevelopment of properties
is taking place in the suburban area, Section 37 will apply provided the
development meets the criteria for building size set out below.
Section 37 will also be applied to lands
zoned for commercial and institutional use. Agreements will be pursued on Brownfield
sites bearing in mind that the City offers a financial incentive program that
brings such sites up to parity with non-contaminated sites, and accordingly,
these sites should also be subject to Section 37 agreements where they meet the
thresholds for consideration. Likewise Section 37 agreements will also be
considered for development pursuing LEED accreditation that meets the threshold
criteria in recognition that LEED benefits often accrue only to the property
ownership.
Establishing Thresholds for the use of Section 37
Development projects will be candidates for negotiating Section 37
benefits if the proposed building is at least 7000 square metres. This is about the equivalent of a typical
nine-storey building. This minimum
threshold would eliminate smaller low-and mid-rise projects so as not to deter
such development.
Other Ontario municipalities also direct the application of Section 37
to projects of a significant size ranging from 5000 to 10000 square metres or
representing a significant increase in height or density. It would not be desirable or practical to use
Section 37 on small projects or those with a minor height or density increase;
community benefits achieved through uplift on smaller projects would be too
negligible to justify the staff resources necessary to administer the Section
37 negotiations and preparation of the required legal agreement. The exception would be where specific
policies in Community Design Plans and Secondary Plans direct the use of
Section 37 for increases in the height and density of smaller developments, for
example, as outlined in the West Wellington CDP.
Section 37 will apply to development applications where the requested
height or density represents a 25% or greater increase over what is permitted through
the as-of-right zoning (see illustrations in Document 4.) The trigger of 25% takes into account the
situations that may arise given variables such as lot size or as-of-right
height permissions in relation to context.
It would also permit reasonable small-scale increases
that are supportable based on Official Plan, CDP or Secondary Plan policies. The
City will utilize Section 37 as a tool to negotiate community benefits from
projects that seek significant changes from the existing zoning.
Calculating as-of-right development potential and redistribution of
density
To establish certainty, the existing zoning should serve as the base to
calculate the as-of-right development potential of a property. If the zoning still has an FSI, then it provides
that potential. If there is a height
restriction, the potential is calculated using all yard setbacks, the actual
height restriction and other performance standards. A redistribution of massing
and height that stays within the as-of-right density and still represents good land
use planning will not be subject to Section 37.
This situation however does not preclude a developer from offering
community benefits outside of a Section 37 agreement where deemed desirable by
the developer, the Ward Councillor, and the community.
Approach to assess the value of the community benefit
The method to assess the level or value of a community benefit will
involve a case-by-case analysis to ensure that each proposal is reviewed in a
fair and consistent manner. The
increased value associated with additional height or density must be measurable
and reasonable among different projects and locations so as to realize the
objectives of the City, the local community, and the developer. The City determines if a site is suitable for
the proposed increase in height or density and then negotiates this increase
with the proponent relative to the type of amenity to be provided in the
community. The negotiations take into
account the type of development project, the site location, current market
conditions, community needs, City objectives and other demands on the property.
The first step in the process is to calculate the value uplift. To provide a level of certainty, the City’s
Realty Services Branch, using a qualified appraiser, shall provide annually a
value uplift rate for two main geographic zones in the city (see Document 3)
where the majority of the development activity is occurring involving increases
in height or density. For ease of
administration, ward boundaries are followed to delineate the two zones. Zone one includes five wards - Rideau-Vanier,
Rideau-Rockliffe, Somerset, Kitchissippi, and Capital. Zone two includes seven
wards - Bay, College, Knoxdale-Merivale, Alta-Vista, Gloucester-Southgate,
Beacon Hill-Cyrville and River. The rate
will be determined on the basis of fair market value and will be expressed in
dollars per square metre. This process
may create some disparities in the value uplift calculation within the two
zones, but it provides for certainty by knowing what the rate is in advance of
submitting a development application. Should a developer dispute this land
value calculation then the City will undertake an individual appraisal at the
developer’s cost under a mutually agreed upon terms of reference with services
provided by a Land Evaluator selected from the City’s Standing Offer list. Furthermore,
any development proposal outside of these two zones will have individual
appraisals undertaken (e.g. in suburban areas and villages).
The second step is to determine the percentage of the calculated uplift
to be applied as a community benefit.
The increase of the gross floor area (GFA) between the base zoning and
the approved zoning is multiplied by the value uplift rate to establish the
full amount of the value uplift. For example,
if a rate for one of the zones is agreed to be ‘X’ dollars per square metre,
the permitted zoning allows 10000 square metres and the proposed building is 13000
square metres, then the value of the uplift is 3000 square metres x ‘X’
dollars.
Some municipalities have considered using a set formula in which the
value of the community benefits would represent a fixed percentage of the
increased land value resulting from the height or density increase. According to several legal opinions, to apply
a precise formula across the entire city could be challenged in court as it may
be considered an illegal tax, and is therefore not recommended.
The City’s approach to determining the quantum of the benefit will
begin with establishing 100% of the land value uplift. From there the quantum
of the benefit will be drawn down by a variety of factors. As mentioned earlier, the City is working to
bring existing zoning into conformity with Official Plan policies through new
Community Design Plans, Transit Oriented Development Plans and other planning
studies but this is a continuous process.
In instances where the zoning is acknowledged not to be current relative
to the Official Plan, a Secondary Plan, or a Community Design Plan, the
percentage of the uplift to go towards a community benefit will be
reduced. Other mitigating factors that
may reduce the quantum of the benefit include the retention or rehabilitation
of built heritage associated with a project (e.g. the developer at their own
cost protects and restores a heritage property on-site), or where the proposed
development includes the provision of a community benefit (on or off-site), and
the developer is prepared to enter into agreement to implement such community
benefit (e.g. public art, outdoor plaza/open space, burying of overhead
utilities, daycare facilities).
The City will coordinate with the developer and the Ward Councillor the
determination of the appropriate quantum of the benefit, however in an effort
to demonstrate certainty, a reasonable expectation based on other Ontario
municipalities and the Section 37 type agreements completed to-date is in the
range of 15-30% of the entire uplift. This statement does not preclude
agreements that may be higher or lower than this range, as the Section 37
process is entirely premised on a negotiation process that is undertaken on a
case-by-case basis. It is noted that both the development industry and the
community would like to have the maximum certainty possible on the quantum of
the benefit and while this is very difficult to predict due to the variety of
site-specific factors, it is anticipated that over time, and with the benefit
of a fair and inclusive process as outlined in the Implementation Guidelines in
Document 2, that a level of predictability will build itself into the process.
Specific policies in Community Design Plans may direct higher
percentages of uplift, for example the recently approved West Wellington
Community Design Plan references specific sites where Section 37 agreements
could be undertaken in return for additional building height.
Timing of the provision of the benefit
The timing of payment or provision of benefits will be flexible
dependent on what the benefit will be. The timing will be agreeable to all
parties and will be determined as follows:
Once the negotiation process is concluded and an acceptable community
benefit identified, the terms for providing the cash contribution and/or the
capital facility has to be incorporated into an agreement to be registered on
title. This agreement should be executed prior to the passage of the Zoning
By-law amendment at Council. In order to ensure this is accomplished expeditiously
it is recommended that Council approve an amendment to the Delegated Authority
By-law to Management Department, provided that the Ward Councillor in which the
application is located concurs.
One year review of the implementation of Section 37 Guidelines and
Protocols
Throughout the series of consultations with the community, Members of
Council, and the development industry it was acknowledged that implementing Section
37 is a significant change to the development review process, and as such
warrants a careful review of the effectiveness of the tool and some of the
assumptions that have been made in an effort to take a “made-in-Ottawa”
approach.
In particular it was noted that the land value assessment methodology
of blended square metre rates and the use of zones should be reviewed against
the future development applications where Section 37 will be applied.
Additionally, as a result of feedback from both the community and suburban
Members of Council, a commitment was made to look at other opportunities to use
Section 37 in the suburban areas, and in particularly whether a unique set of
project thresholds should be established. Staff will therefore bring forward a
report to Planning Committee in March 2013 that will provide a thorough
assessment of one year’s experience using Section 37.
CONCLUSION
The implementation of Section 37 in the development review process is a
significant change to the way that development review is undertaken in projects
where major construction is contemplated. This report has proposed an
implementation framework for the application of Section 37 based, in part, on
the experience of the other municipalities and a “made in Ottawa” approach in
terms of the thresholds that the policy will apply to and the “drawn down”
factors to arrive at the quantum of the benefit. To implement this framework as referenced
earlier in this report, a set of protocols outlined in Document 2 will set out
a process where the developer, the community, the Ward Councillor, and the City
can determine an appropriate community benefit for each candidate development.
By working together to build new buildings of high calibre architecture,
streetscapes of high-end urban design, and through the provision of new
community benefits, it is anticipated that acceptance of intensification will
be strengthened.
While the use of Section 37 applies city-wide, it is not expected there
will be development proposals in the Villages that will meet the minimum size
of 7,000 square metres.
While the specific authority for the contributions discussed in this
report is the Planning Act, Section
37, the requirements for such contributions are imposed in a zoning by-law
pursuant to Section 34. As a result, the requirement for contributions are subject to the same rights of appeal as
for any other zoning by-law.
RISK MANAGEMENT
There are no risk implications.
To ensure funds are tracked and held in accordance with each agreement,
a deferred revenue account will be established for each Section 37 community
benefit cash contribution.
The establishment of the community benefit project, the spending
authority, and additional funds (if required/applicable); will be subject to
Council approval through future years’ capital budget processes. It is not anticipated
that there would be surplus Section 37 cash contribution funds.
Accessibility is a matter dealt with through the Ontario Building Code
and not considered a benefit, but a developer could consider providing an
amenity that goes above and beyond what is normally required by the Code.
This policy contributes to achieving the following objective of the
City’s Strategic Plan:
Planning and Growth Management
Objective 1: Manage growth and
create sustainable communities by:
·
Identify
and explore the use of new incentives under the Planning Act to achieve Official Plan policy goals.
Through the use of Section 37 as a planning tool the City has the
ability to exchange increased height and/or density for community benefits.
SUPPORTING DOCUMENTATION
Document 1 Section 5.2.1 (11)
of the Official Plan - Section 37 Policies
Document 2 Draft Implementation Guidelines for Section
37 of the Planning Act and Protocol
for Negotiating Section 37 Community Benefits
Document 3 Value Uplift Zones
Document 4 Illustrations of Increases in Height and
Density
Document 5 Consultation Summary
DISPOSITION
Staff in the Planning and Growth Management Department will apply the
Section 37 Guidelines and Protocol as of April 1, 2012 to any new applications
received by the City thereafter or to any application that meets the thresholds
that is currently before the City where the applicant wishes to pursue a
Section 37 agreement.
Staff will to return to Planning Committee in March 2013 with a report
that provides an assessment of the implementation of the Section 37 Guidelines
and Protocol and in particular a review of the appropriateness of the land
value uplift methodology and the application of the policy in suburban areas
Section 5.2.1 (11) of the
Official Plan - Section 37 Policies DOCUMENT
1
Approved Section 37 Policies of the Official Plan
Section 5.2.1 (11) - Increase
In Height And Density By-law
Pursuant to Section 37 of the Planning Act, the City may authorize
increases in the height and density of development above the levels otherwise
permitted by the Zoning By-law in return for the provision of community
benefits. However, no increase in height will compromise any of the Capital
Views Protection policies of the National Capital Commission. Public
consultation will be included in the development and approval of such a by-law.
Limited increases will be permitted in return for the provision of such
community benefits as are set out in the by-law and shall be secured through an
agreement as authorized by Section 37 of the Planning Act. Such
community benefits must be over and above those facilities and services that
would otherwise be required as part of the City’s standard development review
process, standard budgeting process or that may be provided through the
Development Charges By-law. The
community benefits that may be authorized include, but are not limited to:
a. Public cultural facilities;
b. Building design and public art;
c. Conservation of heritage resources;
d. Conservation/replacement of rental housing;
e. Provision of new affordable
housing units; land for affordable housing, or, at the discretion of the owner,
cash-in-lieu of affordable housing units or land; [Amendment 10, August 25, 2004]
f. Child care facilities;
g. Improvements to rapid-transit stations;
h. Other local improvements
identified in community design plans, community improvement plans, capital
budgets, or other implementation plans or studies;
i. Artist live-work studios;
j. Energy conservation and environmental performance measures;
k. Conservation of existing green space or
the creation of new green space.
DRAFT
IMPLEMENTATION GUIDELINES
FOR SECTION 37 OF
THE PLANNING ACT
AND PROTOCOL FOR
NEGOTIATING
SECTION 37 COMMUNITY BENEFITS DOCUMENT
2
Section 37 |
IMPLEMENTATION GUIDELINES FOR SECTION 37 OF THE PLANNING ACT AND
PROTOCOL FOR NEGOTIATING SECTION 37 COMMUNITY BENEFITS |
|
To assist with
the implementation of section 5.2.1 (11) of the City of Ottawa Official Plan,
Increase in Height and Density By-law. |
|
|
CONTENTS PAGE
Section 37 Implementation Guidelines 1
1. Introduction 1
2. Implementation
Principles of Section 37 1
3. General Considerations 6
3.1 Timing of Agreement Execution 6
3.2 Timing
of the Provision of the Benefit 6
3.3 Changes in Previously Secured Community
Benefits 6
3.4 Non-Profit Housing Developments 6
3.5 Community Benefits Summary in Financial
Implications 7
Section of Final Report
Protocol for Negotiating
Section 37 Community Benefits 8
Use of Section 37 8
Determination of Appropriate Types of Community
Benefits 8
Consultation with Ward
Councillor 9
Community Consultation 9
Other Issues
Figure 1 -Value
Uplift Zones 10
Section 37 Implementation Guidelines
1.
Introduction
These Guidelines
are intended to assist in the implementation of the policies of the Official Plan contained in Section 5.2.1 (11) Increase in Height and Density By-law. Community
benefits obtained through height and/or density incentives are secured pursuant to Section 37 of the Planning Act.
These Guidelines must be read in conjunction with the policies of the Official
Plan. If any conflicts arise
between Official Plan provisions and these Guidelines, the Official Plan provisions
will prevail.
Section 37 authorizes a
municipality with appropriate Official Plan provisions to pass Zoning By‑laws involving increases in the height or density otherwise permitted, in return for the provision by the owner of community benefits. The community benefits must
be set out in the Zoning By-law
amendment and then secured in an agreement
registered on title.
The term “community benefits” reflects the City’s
priority on providing public benefits
within the local community in which the contributing development project is located. The increase in
height and/or density is an incentive to the developer to provide community
benefits at no cost to the City.
2.
Implementation
Principles of Section 37
The principles below are to be followed when using Section 37 of the Planning Act:
2.1 The
proposed development must represent good land use planning principles: An owner/developer should not expect inappropriately high density or height
increases in return for community benefits and the City should not approve poor
development simply to get community benefits.
Developments must respect good planning principles in terms of
appropriate densities and building form and conform to the City’s design
guidelines. Good architecture and good design are expected of all developments, as a
matter of course, and are not eligible Section 37 benefits.
2.2 Community benefits and the increase in height and/or density must
be set out in the Zoning By-law. Section 37 must
be implemented through a site-specific
Zoning By-law Amendment.
Such a By-law, in addition to containing all of the usual provisions
that would govern development on the site, would include a section that
requires the owner to enter into an agreement under Section 37 to secure the
facilities, services and matters outlined in the By-law.
2.3 Section 37 community benefits should be specific capital facilities, or cash-in-lieu contributions to achieve specific capital facilities. The facilities should be
specific capital facilities, not general or indeterminate
facilities. Amenities obtained should benefit the area
where the development is located.
Increased density can result in higher numbers of people who place
higher demands on community amenities, such as daycares and open space.
The amenity is intended to maintain or improve existing
community liveability and the quality of life in the area that takes the higher
density.
The term “cash-in-lieu” as used
with respect to community benefits means cash contributions toward specific capital facilities, in lieu of the developer
being required to actually construct or provide
those specific facilities. Generally,
any cash contributions should be secured toward community benefits that
are defined with sufficient specificity
in the agreement to be able to demonstrate a reasonable planning
relationship between the contributing development
and the community benefits. Cash
contributions may be considered as a share of a larger capital project in the
vicinity of the development, in instances where the contribution would not
cover the full cost (e.g. a pedestrian bridge).
Operating, programming, and non-capital maintenance funds are not
durable and are not appropriate community benefits.
2.4 There
should be a reasonable planning relationship
between the secured community
benefits and the increase in
height and/or density in the contributing development. At a minimum, this planning relationship includes an
appropriate geographic relationship and
the addressing of planning issues associated with
the development. Community benefits may be appropriate
amenities and services in the local community that go beyond consideration of
matters necessary to support that particular development, and which may be important
in maintaining the quality of life in the community while accommodating
intensification.
2.5 Section 37 will be pursued for larger projects throughout the city where
significant increases in height or density are being requested. Development projects city-wide will be
candidates for negotiating Section 37 benefits if the proposed building is at
least 7000 square metres in size. This
minimum threshold is intended to eliminate smaller low-and mid-rise projects so
as not to deter such development. Section
37 will apply to development applications where the requested height or density
represents a 25% or greater increase over what is permitted through as-of-right
zoning. The intention is to utilize
Section 37 as a tool to negotiate community benefits from projects that seek
significant changes from existing zoning.
The exceptions would be where specific policies in Community Design
Plans and Secondary Plans direct the use of Section 37 for increases in the
height and density of smaller developments or where the permitted density is
redistributed in a manner that is consistent with the City’s design guidelines.
2.6 The rate for
calculating the ‘value uplift’ shall be established annually by the
municipality. In order to ensure an orderly
and consistent approach to the calculation of the ‘value uplift’ the following
steps shall be taken:
i.
To provide a level of certainty to all stakeholders, the City
shall establish annually a ‘value uplift’ rate based geographically on two
zones - inner urban and outer urban - as shown in Figure 1. The two zones represent the area of the city
where Section 37 agreements are most likely to be negotiated.
ii.
The City’s Realty Services Branch, in consultation with key
stakeholders, shall be responsible for providing the yearly values for the two
zones, on the basis of an agreed upon fair market value. The values shall be expressed in dollars per
square metre.
iii.
Any properties outside these zones (the remainder of the city)
will have individual appraisals undertaken.
iv.
Should the owner/developer challenge the total uplift based on
the rate, the City will hire a Land Evaluator to undertake an individual land
appraisal at the developer’s expense on the basis of a mutually agreed upon
Terms of Reference.
2.7 The value of the uplift shall be
determined by calculating the increase of the Gross Floor Area (GFA) between
the base zoning and the approved zoning.
The
‘uplift value’ is defined as the increased land value calculated on the basis
of the increased GFA as a result of an approved zoning change. The quantum of the uplift will first be calculated
on the basis of the entire uplift and
then drawn down by the following factors:
i.
Relevance of zoning to Official Plan, Secondary Plan, and/or
Community Design policy
ii.
Retention or rehabilitation of built heritage
iii.
Implementation of public benefits in the proposed development
(e.g. plaza, pathways, exceptional sustainability measures).
2.8 Typical community benefits are listed in the Official Plan, (policy 5.2.1.11), but this list is
not exhaustive. The Ward Councillor, community groups and area residents shall participate in
determining what benefits should be
the subject of negotiation between the City and the owner/developer. Community groups are encouraged to compile a
list of community priorities annually.
As well,
consideration should be given to intensification
issues in the area, the nature of
the development application, and
the strategic objectives and policies of the Official Plan. Other benefits not specifically listed in the Official Plan
may also be secured. For example, community
needs that have been identified through a Council-approved assessment such as in a Secondary Plan, or a
Community Design Plan.
The consultation
must remain within the timelines established under the Development Review
Process. If a Ward Councillor chooses
not to lead the community consultation, staff will assume this responsibility.
Based on the consultation a recommendation on the proposed community benefits
will be included in the staff zoning report to Planning Committee.
2.9 Visual integrity and symbolic primacy of
the Parliament Buildings and other national symbols must not be
compromised. Increases in height
and/or density shall not be considered in situations where such increases may
compromise the Capital Views Protection policy of the National Capital
Commission; or the City’s Official Plan’s Annex 8A, Central Area Key Views and
View Sequences of the Parliament Buildings and Other National Symbols; or Annex
8B, Maximum Building Heights/Angular Planes; or any extension of these key views,
view sequences and angular planes beyond the Central Area.
2.10 When reviewing an application for a minor
variance involving an increase in height and/or density, planning staff must
advise the Committee of Adjustment of the City’s interest in negotiating a
Section 37 community benefit. During
the course of reviewing a minor variance application for an increase in height
and/or density, staff will consider whether or not there is an opportunity to
negotiate a Section 37 benefit. Should
staff determine such an opportunity exists, they will advise the Committee of
Adjustment through the Department’s comments that the minor variance should be
processed by way of a Zoning By-law Amendment application and be dealt with at
Planning Committee.
In considering the
application, the Committee of Adjustment must decide to either grant the
application as is, notwithstanding the staff comment on the use of Section 37,
or refuse it and require the applicant to submit a Zoning By-law Amendment application.
A Section 37 benefit can only be imposed
through the enactment of a by-law, which negates the ability of the Committee
of Adjustment from doing so themselves in their decisions.
2.11 Section 37 cash contributions toward capital facilities should
be over and above the facility costs that will
be funded through development charges or parks contributions requirements. Section 37 community benefits
in the form of cash contributions may be secured toward facilities (or portions thereof) that cannot be, or are not, funded by
the Development Charges By-law. The cash contribution must also be separate
from the parks contribution requirements under Section 42 of the Planning Act.
2.12 Section 37 may be used to protect, restore
or commemorate or interpret cultural heritage resources. Funds used
for cultural heritage resources secured through a Section 37 agreement shall be
used in accordance with the Ontario
Heritage Act, Council-approved heritage policies of the Official Plan, Arts
and Heritage Plan and Standards and Guidelines for the Conservation of Historic
Places in Canada.
Where there is an identified cultural
heritage resource on the subject site, funds secured through a Section 37
agreement for an on-site cultural heritage resource may be used to protect,
restore, commemorate or interpret cultural heritage resources, or to adapt the
cultural heritage resource for a new use.
Where there is no identified cultural
heritage resource on the subject site but one or more exist in proximity to
that site, funds secured through Section 37 may be contributed to a heritage
grant fund to assist with the future conservation of those resources.
Where the subject site is located in a
Heritage Conservation District, funds secured through a Section 37 agreement
may be used to identify, interpret or commemorate the heritage character of the
district through interpretive plaques, street signs, streetscaping, or other
appropriate means.
3. General Considerations
3.1 Timing of Agreement Execution
The Section 37 Agreement
will generally be executed prior to the
introduction of the by-law that implements
the Zoning By-law Amendment for the increased
density and/or height. It should be
noted that payment or provision of community benefits often does not occur upon
execution of the agreement. The timing
of payment or provision of benefits is typically stated in the Section
37 agreement provisions.
3.2 Timing of the Provision of the Benefit
1.
If a
cash payment is being secured as a condition of a Section 37 Agreement, then
the use of that cash payment shall determine the timing. If the payment is needed as part of a
community benefit that has a set schedule for completion, then this schedule
may be used as a basis for negotiation.
If the payment is to be attributed to a fund for a future project then
the timing can be negotiated accordingly.
2.
If the
benefit is being provided by the proponent as part of the development (i.e. day
care, pedestrian pathways), the timing will be determined on the basis of the
project’s construction schedule.
3.
The
timing of the benefit(s) shall be specified in the Section 37 Agreement and be
agreeable to all parties.
3.3 Changes to
Previously Secured Community Benefits
A change to an existing Section
37 Agreement to reallocate funds or
change the community benefits is often not a simple exercise, but where necessary, the change process must be
open, public, and subject to the appropriate
legal processes, and be authorized by
Council. Council cannot unilaterally amend
an Agreement.
All parties to the original agreement, or their successors in title, must approve
the change and sign an amending agreement.
Where a condominium has been registered, all unit owners are considered parties to the
Agreement.
3.4 Non-Profit Housing Developments
In considering the use of the Section 37 policies in relation to non-profit developments involving
housing, the following definition
shall apply:
“NON-PROFIT HOUSING - Housing
which is or is intended to be offered primarily
to persons or families of
low income on a leasehold or co-operative basis and which is owned or operated by:
A. A non-profit corporation being a corporation, no part of the income of which
is payable to or otherwise available for the personal benefit of a member
or shareholder thereof; or
B. A non-profit housing co-operative having
the same meaning as in the Cooperative Corporations Act.”
Non-profit corporations involved in the development of non-profit housing
are exempt from having to negotiate a community benefit when seeking increases
in height and/or density. They are
subject however to all other provisions of the Planning Act and the policies of the City’s Official Plan.
3.5 Community
Benefits Summary in Reports to Planning Committee
Reports to Planning Committee involving
Section 37 should contain a summary of the community benefits secured, the estimated cost or value of each community benefit where
possible, and the timing
of their provision, especially the payment
timing for cash contributions secured. Staff of other City
Departments may be required to assist
in estimating the cost or value of community
benefits for which they would normally be responsible
or have specific knowledge. When the
community benefit involves a capital project, they will be required to assist
in estimating the cost or value of ongoing operations and maintenance. There are some community benefits, such as preservation
of heritage resources, for which a
value may not be possible to estimate.
Protocol
for Negotiating Section 37 Community Benefits
Use of Section 37
The decision by the City as to
whether, and how, to use Section 37 must conform to the general Section
37 policies of the Official Plan (Section 5.1.1) and/or any more specific
Section 37 policies within Secondary Plans, Neighbourhood Plans or Community
Design Plans. The Section 37 Implementation
Guidelines may provide additional assistance
in applying such policies. Section 37 Agreements
are appropriate only where the proposed development constitutes good planning in accordance with the
objectives and policies of the
Official Plan, including the built
form policies and all applicable neighbourhood protection policies.
Determination of Appropriate Types
of Community Benefits
A general determination of community benefit priorities in an area
anticipating potential intensification need not await the receipt by the City
of a planning application. It is
desirable and encouraged that an analysis and identification of existing and
potential needs and services be done in advance of the receipt of any planning
application. The purpose of such
analysis is to assist in setting the determination of appropriate type(s) of
community benefits as set out elsewhere in this protocol.
Such advance determination could be very beneficial to the community, the developer(s) and the City, and
is encouraged, with the involvement of the Ward Councillor, the local
community, area residents, City staff, and the relevant service provider(s).
A summary list of potential
Section 37 community benefits, and where possible the estimated values/costs of
such benefits, should be produced at the end
of the advance determination process.
The determination of appropriate
type(s) of community benefits for a specific application will conform to the
relevant Official Plan policies in the specific context of the
application. In the context of
compliance with the policies of the Official Plan and seeking agreement with
the applicant on an appropriate package of community benefits, consultation
with the local Councillor, local community associations and area residents is
considered a high priority. Section 37
funds must not be used as a substitute for funding which would normally be
provided as part of the City’s operating budget or as part of the routine
capital maintenance program (e.g. road repairs).
The following must be taken into account in order to
ensure both the legitimacy and accuracy of determining a Section 37 benefit (in
no particular order):
i) Consultation with
Ward Councillor;
ii) Consultation with other City
Departments;
iii) Consultation and engagement with the local
community;
iv) Knowledge
on the part of the Ward Councillor,
community, Planning and Growth Management staff, and other City staff regarding local
needs;
v) Council-approved studies or assessments outlining community needs, including any
advance assessment of community
benefit priorities; and
vi) Interests of the applicant.
Consultation with the Ward
Councillor
i) The Ward Councillor will be
consulted by Planning and Growth Management staff prior to any discussions or
negotiations regarding Section 37 benefits with the applicant;
ii) Staff will provide the Ward Councillor with the following information as soon as it is available:
• advice as to whether Section 37 benefits are appropriate and desirable;
• appropriate types of benefits, based on any information previously assembled;
• advice regarding the implications
for community benefits of Official Plan policies and other relevant considerations in the context of the
specific application; and
•
the
amount of the total value uplift.
iii) Further consultation between Planning and Growth
Management staff and the Ward Councillor may occur as
necessary and/or as agreed upon between them.
Community Consultation
i)
Consultation and engagement with the community by
City staff and/or the Ward Councillor in advance of receipt of development
applications, to help determine priorities for community benefits is
encouraged.
ii)
Staff will circulate notice of the development
application to local community associations and to residents in the vicinity of
the project.
iii)
Community
consultation meetings with local community associations and area residents to
determine and prioritize appropriate benefits shall be coordinated through the
Ward Councillor’s office prior to any negotiations with the applicant.
iv)
The statutory public meeting at Planning Committee provides the opportunity to comment on the
proposed development and the
appropriate type and/or level of
Section 37 community benefits.
Other Issues
i)
City
Planning and Growth Management staff should coordinate Section 37 negotiations:
• staff is responsible for compliance with Official Plan policy and for
recommending an appropriate decision
on the application, including an appropriate package of Section 37 community
benefits where applicable;
ii) Timing
of Section 37 negotiations in relation to discussion of other planning issues:
• the possibility of pursuing Section 37 negotiations should be raised as early as possible in
discussions on an application (pre-consultation stage), based generally on the
Implementation Guidelines and Official Plan policies, without committing in principle or otherwise to any
increase in height or density or both;
• Section 37 discussions need
not await resolution of all other issues, and the timing approach on each application may vary; and
• the appropriate package of Section 37 benefits is a planning
issue to be resolved, along with other planning issues associated with a development application.
ii)
A summary list of
recommended Section 37 community benefits and, where possible, estimated values/costs of such benefits, should be included in the
“Financial Impact” section of final planning reports.
Value
Uplift Zones DOCUMENT
3
Illustrations of Increases in Height and Density Document 4
CONSULTATION SUMMARY DOCUMENT
5
Community Associations and Advisory Committees
1.
Comment
Guidelines must specify that consultation on
planning applications involving negotiations for a Section 37 benefit include
all Community Associations representing the area of the development. The community should be consulted prior to
any negotiations.
Response
Through the proposed protocol outlined in
Document 2, Community Associations and area residents will have an opportunity
to become engaged in the process of determining an appropriate benefit based on
local needs. Community consultation
meetings will be organized through the Ward Councillor’s office prior to any
negotiations with a proponent.
2.
Comment
All zoning applications seeking an increase
in height and density in excess of what is permitted “as of right”, as
determined through the Zoning By-law, secondary plans or CDP’s, should involve
negotiating a Section 37 benefit. One or
more additional filters should be included to exempt small scale developments
and minor infill (e.g. buildings under 4 storeys or as specified in a community
design plan).
Response
Staff agrees that smaller low- and mid-rise
developments shouldn’t be subject to Section 37. As a result, Section 37 would only be
applicable to new development projects greater than 7000 sq.m. in size and
where the requested height and/or density is 25% higher than the existing
as-of-right zoning, except where otherwise indicated in a CDP or other planning
study. The focus will be on those
projects requesting significant departures from the existing zoning but which
still represent good planning. Such
projects provide the opportunity to negotiate significant benefits and this is
where staff resources should be focussed.
It would be difficult to justify the cost and administration of
negotiating a Section 37 benefit in every instance where the proposed zoning
exceeds what is permitted as-of-right.
3.
Comment
Section 37 agreements should be pursued
city-wide where opportunities present themselves.
Response
Staff is in agreement and this is addressed
in the body of the report.
4. Comment
The Inner Urban geographic zone, outlined in
Figure 1 of the Implementation Guidelines, to be used to calculate the value
uplift should be reduced in size and not extend to Walkley Road.
Response
For ease of administration, ward boundaries
are followed as closely as possible to delineate the geographic wards. As suggested, the Inner Urban geographic zone
has been modified by altering its boundary so that the area of the city that
comprises Alta Vista Ward will now become part of the Outer Urban zone.
5.
Comment
There should be an opportunity to assess
whether the proposed methodology to establish the total uplift value of an
eligible property is achieving its intended purpose.
Response
The rate per square metre system will go
through a trial period. In other Ontario
cities, the value uplift is calculated by appraisal on a site-by-site
basis. While it may not provide the same
degree of certainty, the option exists to revert to an individual appraisal
system if the rate system is shown to be deficient for whatever reason.
6.
Comment
Section 37 negotiations must result in a
tangible benefit to the immediate community.
Where cash payments are made to a separate account, the account should
be subject to an annual audit to show how the funds have been used and to
ensure they have not migrated to the City’s general revenue account.
Response
A financial process to ensure accountability
is outlined under the Financial Implications section that follows. Essentially, when it comes to receiving cash
contributions, a deferred revenue account will be established for each Section
37 community benefit until it’s time to release the funds. The accounts, and funds, will be easily
traceable within the City’s systems.
7. Comment
Brownfield remediation should not be
considered an appropriate benefit to be negotiated through Section 37. In most cases there is no direct impact of
buried contamination on the local community.
The remediation is likely to benefit only the residents of the new
building. The City provides tax
incentives through its Brownfields remediation program.
Response
Staff is in agreement. Brownfield remediation itself will not be
considered an eligible community benefit.
When a proposal is received to redevelop a Brownfield property, staff
will determine based on the circumstances whether or not to negotiate a
community benefit.
8.
Comment
Environmental initiatives of residents may be
compromised by allowing developments to be taller than current by-laws
stipulate. Section 37 should provide
security to those who are investing in solar energy. There should be a process for compensation
for lost revenue or access to light or for moving the solar panels should a
development block sunlight from reaching the panels.
Response
This is a matter that should be dealt with
when an application is being processed through Site Plan Review (e.g. thinner
buildings to let sunlight pass through.)
It should be noted that there is no right-to-light legislation in
Ontario.
9.
Comment
The implementation guidelines make no
explicit reference to barrier free design or accessibility.
Response
Barrier free design of new buildings should
be common practise and a standard consideration in all new buildings. Accessibility should not have to be
negotiated as a Section 37 community benefit.
Any new community facility that is to be built through Section 37
contributions must be made accessible to all.
10. Comment
A set portion of all Section 37 agreements
should go to the Affordable Housing Reserve fund.
Response
The provision of affordable housing is a
priority in the City’s Strategic Plan and the Official Plan and while Section
37 funds are able to earmarked for a specific housing project or to the
Affordable Housing Reserve fund, this report recommends that the Ward
Councillor and the community should have the discretion to determine the most
needed community benefit which will undoubtedly vary from ward-to-ward and
accordingly it is not recommended that a fixed percentage be allocated to
affordable housing.
11.
Parks and Recreation Advisory Committee
At its meeting 24 May 2011, the Parks and
Recreation Advisory Committee approved the following:
“That PRAC recommend that pursuant to the
existing provisions of Section 5.2.1 (11) of the Official Plan, Increase in
Height and Density By-law, a new community benefit (L) be added to the list of
acceptable community benefits to include:
L) parks and recreation facilities.”
Response
Staff will consider this request through the
upcoming Official Plan review as it would require an Official Plan Amendment
but such facilities negotiated under Section 37 cannot be facilities that are
eligible for funding through the Development Charges By-law or the Parkland
Dedication By-law. In the meantime, if
an opportunity arises outside of these by-laws, the list in Policy 5.2.1 (11)
is not all-inclusive and a park or recreation facility can be considered.
Development Industry Associations
12. Comment
Section 37 should only apply to Design
Priority Areas (i.e. mixed use centres, arterial main streets).
Response
Section 37 is a general planning tool that
can be used to improve appropriate development in any area. While there is likely to be more use of
Section 37 in the intensification target areas, limiting its use to these areas
may cause developers to look elsewhere in the city for sites to intensify which
would be counterproductive to the Official Plan. It should therefore be applied city-wide.
13. Comment
Use a 7000 sq.m. minimum uplift as a fixed
threshold in height and density increase before applying Section 37.
Response
Staff is in agreement. See the response to the second comment.
14. Comment
Section 37 should not apply to increases in
building height. The industry should not
be penalized for making a building look better by building higher.
Response
This is discussed in the body of the report
under the section on Calculating As-of-Right Development Potential.
15.
Comment
In the calculation of the value uplift,
market expectations that drive land use purchases should be used. Using existing zoning in the formula can only
work if the zoning by-law is brought into conformity with the Official Plan,
CDP’s and Secondary Plans.
Response
This is discussed in the body of the report
under the section on the Approach to Assess the Value of the Community Benefit.
16.
Comment
Cash payments should be provided at the time
of registration of a condominium. For
non residential buildings, cash payments should be provided upon final building
inspection. If the community benefit is
to be completed in the short term and the cash payment is needed sooner than
later, this will be negotiated with the proponent. The City should be flexible on when payment
is to be made.
Response
The draft implementation guidelines have been
revised so that the timing of the payment will be dependent on a number of
factors. If a cash payment is being
secured through a Section 37 agreement, then the use of that cash payment shall
determine the timing. If the funds are
needed as part of a community benefit that has a set schedule for completion,
then this schedule will be used as a basis for negotiation.
If the funds are to be attributed to a fund
for future projects then the timing can be negotiated accordingly. This timing of the payment will be included
in the Section 37 Agreement.
EXCHANGE OF INCREASED HEIGHT OR DENSITY FOR COMMUNITY BENEFITS -
IMPLEMENTATION GUIDELINES
ÉCHANGE D’UNE AUGMENTATION
DE LA HAUTEUR OU DE LA DENSITÉ DES IMMEUBLES CONTRE DES AVANTAGES POUR LA
COLLECTIVITÉ.
ACS2012-ICS-PGM-0010 City Wide/
à l'échelle de la Ville
REPORT RECOMMENDATIONS
That
the Planning Committee recommend that Council approve:
1.
The “Guidelines and Protocol for the
Implementation of Section 37 of the Planning
Act” contained in Document 2; and
2.
An amendment to the Delegation of Authority
By-law, By-law Number 2002-4, to delegate signing authority for Section 37
Agreements to the General Manager, Planning and Growth Management, with the
concurrence of the Councillor for the ward in which the development project is
located.
3.
Direct staff to return to Planning Committee
in March 2013 with a report that provides an assessment of the implementation
of the Section 37 Guidelines and Protocol and in particular a review of the
appropriateness of the land value uplift methodology and the application of the
policy in suburban areas.
The Committee received the
following written submissions, copies of which are held on file
with the City Clerk:
a. Stittsville Village
Association letter dated 14 February 2012
b. The
Building Owners and Managers Association (BOMA) Ottawa e-mail dated 13 February
2012
John Moser, General Manager, Planning and
Growth Management introduced the item.
Stanley Wilder, Planner,
and Alain Miguelez, Program Manager, Development Review Process (Urban),
provided a detailed overview of the item before Committee. A copy of their PowerPoint presentation is
held on file with the City Clerk.
Committee heard from the following public
delegations:
Raymond Sullivan, Centretown Citizens Ottawa
Corporation, made the
following two suggestions for changes to the draft Section 37 Guidelines:
Section
2.3
Add a paragraph saying: "for
capital-intensive community benefits such as daycare centres and affordable
housing, when supported by a community design plan or other community
consultation the Ward Councillor will establish a dedicated ward reserve for
daycare and housing.
Section
3.2
The text should be replaced with: "The
payment of community benefits secured as cash will be required, as a condition
of the Section 37 agreement, prior to issuing an above-grade building
permit. Where the particular
circumstances warrant, for example where restoration of a heritage building is
to be carried out prior to the construction of the new portion of the
development, or a community facility is needed sooner rather than later for
good planning reasons, the payment(s) may be secured at an earlier appropriate
trigger."
Additional details are contained in his
written submission dated 13 February 2012 previously circulated and held on
file.
Patrick Quealey, Environmental Advisory
Committee, spoke in support
of the item, but provided the following comments:
·
The EAC
preferred the City’s initial threshold of 5000 sqare metres rather than the
current size listed in Section 2.5 for choosing a 7000 sqare metre building as
the minimum for invoking S.37. They
believe 25per centor greater increase over what is permitted through
as-of-right zoning as the additional S.37 trigger, is too high and should be
reduced to 15 or 20per cent. If the 7000
square metre and 25 per cent double trigger is accepted as is, they recommend
including provision for the City to invoke S.37 regardless of thresholds in
exceptional and specific situations.
·
Section
2.10 should provide greater clarity on how the Committee of Adjustment will be
encouraged to work with the City to realize S.37 benefits and what actions are
at the City’s disposal should the Committee of Adjustment ignore the City’s
request for a s.37 benefit.
·
The EAC
would like to see a mechanism where, in addition to staff, the Ward Councillor
or community could raise the possibility of a Section 37 benefit.
A copy of his written submission is held on
file.
Martin Laplante suggested the following changes to the
proposal:
·
Section
37 must be a transparent process; having the Section 37 Agreement executed
prior to the introduction of the by-law that implements the Zoning By-law
Amendment for the increased density and/or height is too late for a transparent
process; a number of jurisdictions have a local plebiscite
·
All
residential upzoning requests in the designated areas must go through this
process; there should not be a 25per cent threshold
·
Restore
Floor Space Index (FSI)
·
Make the
second zoning maximum explicit and downzone the original
·
Better eligibility
criteria
Additional details are contained in his
written submission, a copy of which is held on file.
Leslie Maitland, Heritage Ottawa, indicated support for various sections of
the Implementation Guidelines, but hoped Section 37 would not be used to the
detriment of heritage. She also made the
following comments:
·
The funds
obtained under the proposed Guidelines may not be sufficient to have any
significant effect on retention or preservation of heritage resources.
·
Implementing
Section 37 as proposed will routinely result in little or no community
benefits, including conservation of heritage resources, actually being achieved.
A copy of her written submission is held on
file.
Jay Baltz, Federation of Citizens’
Associations, indicated strong
support for the item, but submitted the following concerns:
·
They do
not agree with the proposal to calculate uplift based on uniform land values
determined for large areas of the City.
·
They
object strongly to the “drawdown” of benefits based on the relevance of the
existing zoning to the Official Plan.
·
They
object to the provision which allows the total volume under existing zoning to
be redistributed to a taller structure without incurring Section 37 benefits.
Additional details are contained in his
written submission, a copy of which is held on file.
Catherine Boucher, Dalhousie Community
Association submitted the
following suggested changes to the guidelines:
·
The
threshold for building area should be 3000m2, not 7000m2
as recommended. The threshold for height
should be 10 or 12 per cent, not 25 per cent.
·
The
portion of all Section 37 benefits automatically ascribed to affordable housing
should be prescribed as “minimum 25 per cent”.
·
Where a
proposal by-passes the threshold criteria of Section 37 by seeking a Minor
Variance, rather than a rezoning, the Guidelines should specifically require
staff to recommend to the Committee of Adjustment that the Minor Variance be
refused.
·
“Value
Uplift” based on merely inner and outer urban, is too general and reduces the
value in those areas where redevelopment is most likely. The number of zones should be substantially
increased and fine tuned.
A copy of the Community Association’s letter
dated 10 January 2012 is held on file.
Doug Casey, Charlesfort Development was generally in support of Section 37 but
was looking for clarification on several matters:
·
If a
developer is changing the shape of a building, but not the density, the report
indicates that Section 37 would not be used; however, the preamble in the
report states that it would be.
·
If
Section 37 is related to good planning and if something can go to the Committee
of Adjustment, a separate legal body, it would appear the Planning Committee is
overstepping its authority.
He suggested that a reasonable time for the
timing of payment would be when the condominium is registered.
Linda Hoad, Hintonburg Community Association indicated support for many aspects of the
Guidelines, but provided the following comments:
·
Opposed
to the exemption proposed for redistribution of density as long as the present
method of calculation is followed.
·
Strongly
opposed policy 2.7 (i) that allows the uplift to be reduced because of the “relevance
of zoning to Official Plan,
Secondary Plan, and/or Community Design policy.”
·
Strongly
opposed policy 2.7. (iii) Implementation of public benefits in the proposed
development because some of these items (e.g. plaza, pathways) constitute good
urban design, which is a requirement according to the policy. Suggested this be removed because it pre-empts
the consultation proposed elsewhere in the policy.
A copy of her written submission is held on
file.
Michael Casey spoke in opposition to the proposal. He noted that the City wants to share in the
uplift it is creating but it will be onerous on developers to pay these
additional costs up front. He wanted the
City to share in the risk and the
reward.
Christian Pupp spoke in support of Section 37. With respect to the Development Review
Process, he suggested delegating to staff, decisions on how it is calculated,
using the average values et cetera. He
wondered if the drawdown for a higher building could be made dependent on the
recommendation or the approval of the design review panel.
Stephen Pope, Old Ottawa East Community
Association, stated that
given the low density and low-rise character of his community, this
neighbourhood would usually be excluded from any of the Section 37
discussions. However, they opposed the
staff recommendation because of issues associated with valuation and applying a
“one size fits all” across the entire urban area.
MOTION
NO. PLC 28/6
Moved
by Councillor R. Bloess
That Planning Committee recommend to Council that the range of 15-30% of
the value stated as a guideline in the Implementation Report be broadened to 15-50% of the
uplift.
LOST
YEAS (3): R. Bloess, R. Chiarelli, B. Monette
NAYS (6): S. Blais, K. Hobbs, A. Hubley, S. Qadri,
J. Harder, P. Hume
MOTION
NO. PLC 28/7
Moved by Councillor
B. Monette
That the Planning Committee recommend to Council that the timing of the
payment of the benefit should be provided at the time of the Building Permit
issuance subject to the Ward Councillor’s concurrence.
LOST
YEAS
(0)
NAYS (9): S. Blais, R. Bloess, R. Chiarelli, K.
Hobbs, A. Hubley, B. Monette, S. Qadri, J. Harder, P. Hume
MOTION
NO. PLC 28/8
Moved by B. Monette
That the Planning Committee recommend to Council that the minimum development
size be
reduced to 5,000 square meters.
LOST
YEAS (2): S. Blais, R. Chiarelli
NAYS (7): R. Bloess, K. Hobbs, A. Hubley, B.
Monette, S. Qadri, J. Harder, P. Hume
MOTION
NO. PLC 28/9
Moved by
Councillor J. Harder
That
Recommendation 2 be amended by changing the words “By-law Number 2002-4” to
“By-law Number 2011-28” to read as follows:
2. An amendment to the
Delegation of Authority By-law, By-law Number 2011-28, to delegate
signing authority for Section 37 Agreements to the General Manager, Planning
and Growth Management, with the concurrence of the Councillor for the ward in
which the development project is located.
CARRIED
The report recommendation
was then put to Committee and CARRIED as amended by Motion No. PLC
28/9, with the following
directions to staff:
DIRECTIONS
TO STAFF
1. That
the Planning Department present guidelines for the suburban areas for approval
of Planning Committee no later than one year of adoption by Council.
2. That prior to this item rising to Council
on 28 March 2012:
a. Planning staff report back on the
establishment of ward-wide funds for daycare, affordable housing, et cetera.
b. Staff in Realty Services report back to
the Committee on the following:
i. The transactions that relate to an increase in value only
related to height.
ii. What estimated value is added to any particular development
through the increase of height and density, i.e., where the density is being
reallocated and not building new.
This report will be presented
to Council on 28 March 2012