Implementation Guidelines for Section 37 of the Planning Act and Protocol for Negotiating Section 37 Community Benefits

Below are important excerpts from “Implementation Guidelines for Section 37 of the Planning Act and Protocol for Negotiating Section 37 Community Benefits”
The full document is available here more information is available online here.

Section 37 of the Planning Act permits the City to authorize increases in permitted height and/or density through the zoning bylaw in return for community benefits, provided that there are related Official Plan policies in place (section 5.1.1 of the Official Plan as well as certain area-specific policies).

Section 37 Implementation Guidelines
The Section 37 Implementation Guidelines were adopted by City Council on November 20, 2007. Such Guidelines are intended to assist in the implementation of the Section 37 policies of the Official Plan (section 5.1.1). They are designed to be read in conjunction with the Official Plan policies, and address implementation principles, other implementation issues, and guidelines for securing specific types of community benefits.

Protocol for Negotiating Section 37 Community Benefits
A Protocol for Negotiating Section 37 Community Benefits was adopted by City Council at the meeting of December 11-13, 2007. The Protocol was requested by Planning and Growth Management Committee and is another form of guideline. The Protocol deals with the process by which community benefits are negotiated by City Planning staff, with the involvement of the Ward Councillor and with community consultation.

2.3 Section 37 community benefits should be specific capital facilities, or cash contributions to achieve specific capital facilities.

(Note: If an Official Plan Amendment to authorize S.37 funding of certain studies, currently under consideration by the City, is adopted and comes into force, then specific exceptions to this principle, as set out in the Amendment, will be permitted as eligible Section 37 community benefits.) This principle contains two important sub-principles: a) community benefits should be capital facilities; and b) those capital facilities should be specific capital facilities, not general or indeterminate facilities.

Community benefits should be durable. Cash-in-lieu of capital facilities is only acceptable where the cash is secured for specific local capital facilities (and where through agreement capital maintenance funds can be secured to repair or maintain Toronto Community Housing Corporation properties). Operating, programming, and non-capital maintenance funds are not durable and are not appropriate community benefits (the only permitted exceptions are start-up funds where a child care facility is secured, in accordance with Official Plan policy 5.1.1.6(b), and rent levels and tenant relocation and assistance plans as required through the application of policies 5.1.1.6(h ) and (i) and section 3.2.1). Capital maintenance is considered to fall within the meaning of a capital facility.

Section 37 is not a vehicle to generate general revenue within a local community for non-specific or indeterminate purposes. 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. On occasion, upon agreement between the owner and the City, cash contributions may be made to special accounts already established by City Council and intended to be used for capital facilities in the broader community (e.g. Capital Revolving Fund for Affordable Housing, Public Art Trust Fund).

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. The priority location for community benefits should be on-site or in the local area. 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 City while accommodating intensification.

2.11 The Ward Councillor should always be consulted by City Planning staff prior to any negotiation of S.37 community benefits.

The Ward Councillor has a role, if he or she wishes, in determining what benefits should be the subject of negotiation between the City and the developer/owner, and should always be consulted prior to negotiations with the applicant.

2.12 City Planning staff should always be involved in discussing or negotiating Section 37 community benefits with developers/owners.

City Planning staff has a particular responsibility to ensure that the Official Plan policies are being complied with, and must recommend an appropriate package of S.37 community benefits when the staff report recommending approval of the proposed development is forwarded for Community Council consideration.

3.7 Change in Previously Secured Community Benefits

A change to an existing 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. Where potentially controversial or complex, Council authority should be obtained to begin the process and to approach the current owners. Because specific Section 37 community benefits are often set out in the site-specific Official Plan and Zoning By-law provisions, and the zoning by-law authorizes the securing of the benefits, amendments to those provisions may also be required. A minor variance process may be an option, but Council authority is still required to amend the agreement. 

3.12 Community Benefits Summary in Financial Impact Section of Final Reports

The Financial Impact section of final planning reports on planning applications involving S.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 Divisions other than City Planning will be required to assist in estimating the cost or value of community benefits for which they would normally be responsible or have specific knowledge. There are some community benefits, such as preservation of heritage resources or existing rental housing,  or which a value is usually not possible to estimate.