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
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Ref N°: ACS2012-ICS-PGM-0010 |
REPORT RECOMMENDATION
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.
RECOMMANDATION DU RAPPORT
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.
BACKGROUND
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.
DISCUSSION
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:
- the Floor Space Index (FSI) has been removed from the previous zoning designations in most parts of the city, which may result in fewer requests for density increases and thus more creative building design. In the case of residential development, particularly multiple mid-rise and high-rise building projects, it is unlikely proponents will approach the City for increases in the overall project density. Rather, their development focus will be on taller buildings, resulting in requests for increases in height.
- in most designated Mixed Use Centres the FSI has been increased by 0.5 and a minimum height of 6.7 m near rapid transit stations has been introduced.
- on Traditional Mainstreets maximum heights generally increased from 18 to 20 m, except where site specific amendment heights applied. Through Community Design plans completed since approval of the Official Plan, specific sites have been identified for heights higher than under former Zoning By-laws. Also, all floor space indexes which were in addition to height limits were eliminated.
- on Arterial Mainstreets the FSI increased where the FSI existed previously, in some cases from 1.0 to 2.0 with a new bonus provision to 3.5 for parking provided underground. In many Arterial Mainstreet areas there has been an increase in height to 20 and 25 m.
- outside the Design Priority Areas for mid-high rise apartment zones (primarily in former Ottawa), the FSI was eliminated where there was a height limit already in effect or was replaced with either the height of existing apartment buildings or 18 m, whichever was greater.
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:
- 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. For example if the payment is being directed towards a community benefit that has a set schedule for completion (e.g. enhancements to a community park), then the construction schedule may be used as a basis for negotiation of the timing of the payment. If the payment is to be attributed to a fund for a longer-term project (e.g. affordable housing reserve fund) then the timing can be negotiated accordingly.
- 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. It is the City’s intention however that the benefit will be in place to serve both the building’s new residents/tenants and the existing neighbourhood upon occupancy of the building.
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.
RURAL IMPLICATIONS
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.
LEGAL IMPLICATIONS
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.
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. It is not anticipated that there would be surplus Section 37 cash contribution funds.
ACCESSIBILITY IMPACT
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.
CITY STRATEGIC PLAN
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
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Section 37 |
IMPLEMENTATION GUIDELINES FOR SECTION 37 OF THE PLANNING ACT AND PROTOCOL FOR NEGOTIATING SECTION 37 COMMUNITY BENEFITS |
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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. |
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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.