A planning tool that forgets people are part of the planning process. Section 37 – a missed opportunity.

By Pepper Parr

BURLINTON, ON May 28, 2011 – Burlington is one of a few cities that makes use of Section 37 of the Planning Act. Ottawa, Toronto and Markham use the provision which can be a very useful planning tool. In Burlington we are fortunate to have a planner who wrote the definitive text on the Ontario Municipal Board and a man who has served as a member of that Board. The significance of this is that most matters that go to the OMB are related to planning matters and to have a planner who knows the ins and outs of the OMB as well as the intent of the Board gives Burlington an intellectual advantage.

The way Section 37 of the Planning Act is implemented just might get a re-working in Burlington if Council members follow up on their comments.

The way Section 37 of the Planning Act is implemented just might get a re-working in Burlington if Council members follow up on their comments.

Section 37 of the Planning Act relates to situations where an Official Plan calls for a certain type of development. It could be single detached housing, row housing organized as a condominium or a high rise, inevitably the issue become one of density. How many units can you put in a piece of property ? The municipality’s Official Plan (OP) will set out what the density can be and the zoning on the piece of property will set out what kind of building can be built on the site.

There are occasions where a developer will approach a municipality with a proposal that exceeds what is set out in the OP, but after discussions with the Planning Department, agreement is reached that the proposal is “good planning” and meets both the immediate and long term needs of the city.

We had two instances of just that happening in Burlington very recently and both created significant opposition within their communities. One was a condominium development south of the Queensway and the other was the apartment/condominium development at Brock and Elgin. In both instances the city approved an amendment to the Official Plan to permit the development

Burlington is faced with a provincial requirement that we grow our population. The province tells us that is what we have to do and that is what we do. The provincial Places to Grow legislation requires Burlington to grow its population by 20,000 people over the next 20 years – that’s 1,000 new housing units every year.

Because the city no longer has very much “green space” to build large projects on they have to resort to intensification.

Developers see opportunities to take land that is being under utilized and they begin to assemble properties until they have an area large enough for the plans they have in mind.

In the Queensway area this resulted in a developer purchasing six properties that consisted of half an acre each. These lots were created at the end of WW II and known as Veterans Land Act properties. Once the land was assembled the developer asked for permission to build a 74 unit complex on the property and the local community was up in arms. That development eventually got cut back to 58 units but is still a significant bit of intensification – going from six homes to 58 on the same pieces of land.

In the Brock Elgin area the developer did an assembly and came to the city with a proposal to increase the density permitted in the Official Plan from 7 to 14 storeys. The community was aghast and argued against the development at two public meetings and a third meeting at a Council Committee and finally at a Council meeting. They were beaten back at every meeting.

In this instance the developer made a Section 37 proposal in which the city determines how much the value of the land the development is being built on is going to increase due to the development.

Note that the unit of measure here is the increase in ‘value of the land’ not the revenue and potential profit the developer expects to see. The city gets an appraisal of what the land was worth before the development and what the land will be worth after the development and then asks the developer to contribute half of the increase in value back to the city as community benefits.

In the Brock Elgin development the increase in the value of the land was deemed to be $1 million and the developer agreed to pay for community improvements worth $500,000.

This is seen as a way for a city to share in the gain that a developer earns when asking for and getting an amendment to an Official Plan. Sounds fair and is seen as a sound planning practice.

Where people in Burlington get really wound up is how the community benefits are determined. The Planning department does all that thinking – with not a peep from the community. Ward 2 Councillor Marianne Meed Ward thinks this is wrong and fought vigorously to have the community involved in determining what the benefits should be.

She came close to getting her Council colleagues to look at what was being proposed then, to the surprise of just about everyone, they learned that if Council wanted to make any changes to the community benefits the matter had to be sent back to Committee.

Several Councillors believed that the amendment to the Official Plan and the applicable by law could be approved and the specific make up of the community benefits looked at later – wasn’t possible. The two had to be approved at the same time.

Section 37 of the Planning Act is a very sound and accepted planning tool. What Burlington hasn’t done is bring the community in on the process and get their input before deciding what to do.

Councillors Sharman and Taylor have said they want to see the community benefits issue handled much differently. We will be watching.

 

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