How do our planners handle applications for increased height and density from developers. Do they get the best deal for the community?

By Pepper Parr

BURLINGTON ON, March 8, 2011  –  Have you ever had a Section 37?  Would you care for one?  I suppose it would help if you knew what a Section 37 is.

A Section 37 is a part of the Municipal Act that allows a municipality to give a developer greater density than that set out in the municipalities Official Plan in exchange for something that is a benefit to the community.  The next Section 37 trade off will probably be related to the Molinaro Group application for an increase in density for the project that want to build at the intersection of Brock and Elgin Streets in the western part of the downtown core.

Planners doing a little horse trading?

Planners doing a little horse trading?

It is common practice for the planning department in a municipality to do a little horse trading with a developer.  It can be fraught with potential conflicts and there have been abuses in some municipalities.

Ted Tyndorf, Chief Planner for the city of Toronto in 2006 talked about Section 37 at a Symposium on All About Planning.  Tyndorf said a Section 37 is NOT an incentive and he refers people to the wording in the Act.  “The Council may by by-laws, authorize increases in height and density otherwise permitted in return for such facility services or matters set out in the By-Laws”. Tyndorf focuses on the words ‘in return for’ and says the legislation contemplates an exchange in the context of good planning and under the conditions set out in the Official Plan.  Some call this “let’s make a deal” planning and then complain that the negotiators settled for too little.

Section 37 has been around since 1983.  A point Tyndorf makes is that the community benefit derived from the granting of additional height and density should be based on local community needs, intensification issues in the area, and the nature of the development. Application and strategic objectives and policies of the Official Plan.

Burlington is in the process of gearing up for an Official Plan review – there is a lot to look at and a lot of public educating to be done if there is going to be a plan that satisfies the tax payers.

Mayor Rick Goldring points out that if Burlington is to meet the Place to Grow requirements – and we don’t have a choice with this  – and if we are basically built out then the new housing units are going to be high rise units that will provide the intensification.  Right now that kind of growth seems to be taking place in the western end of Ward 2 and in the Aldershot community.

Residents are content with seven story buildings and they have yet to hear what they think is an adequate explanation for why the 14 and 22 story units are going up.

Goldring also wants to find a way to get beyond the intense community fights over each application for increased height and density applications. “Developers would much rather  build in Burlington but these noisy community meetings don’t make the city all that attractive for developers.”  Some in the city would say that is just fine with them – let the developers go somewhere else.  It’s not quite that simple.  Burlington is going to change – the trick is to get change that maintains the character and scale that everyone wants.

The planning consultant for the Molinaro Group explained to a community meeting that the provincial Places to Grow legislation called for Burlington to create 2000 new housing units in the next ten years and then went on to point out that the Molinaro project was in fact helping the city reach their objective –which one has to admit is a pretty slick piece of public relations work for a client.

Telling an unhappy crowd of resident that increasing the height and density of a project would help the city meet an objective is a stretch. One would like to think that the planning department would have come forward with recommendations to the city that zoning in that part of the city bound by the Lakeshore, Maple, Ontario and Brock be subject to height variance and then set out what the city wants in return.

Ward 2 Council member wants her citizens at the table when the city gives height and density increases to the developers.

Ward 2 Council member wants her citizens at the table when the city gives height and density increases to the developers.

Where Marianne Meed Ward has a problem with this activity is that “you are not at the table” she explains and goes on to add that planning departments have been notoriously bad at getting the best deal for the residents of a community.

The planners give away far too much says Meed Ward “and the community doesn’t get value for what it gives”.  And Meed Ward emphasizes – “the community is not at the table and they have no idea what the city is getting.”

The community knows what the developer is asking for – in this case a rise from 7 storeys to 14, which was a bit much for the more than 50 people who attended the community meeting were prepared to swallow.

It was a meeting at which voices were raised and the city planner on the file, Charles Mulay had to struggle to maintain some control over the meeting.

Meed Ward would have the community that is undergoing the changes at the table.  She told an audience at the required public meeting for a higher density application that she would like to see the community gather and have the developer and the planning people at that meeting where all three can talk openly about what could be ‘given for the get’ and then have a couple of people from the community actually sit in on the negotiations that take place between the city and the developer.

Those familiar with the way these things get done say that “that is never going to happen”.  But if there is a strong enough voice for a different approach this city council just might listen or perhaps be convinced to give it a try.

They are addressing the Shape Burlington recommendations and talking about an Engagement Charter and more public involvement – letting the citizens into the room would be an interesting exercise.

One last comment about the way citizens get involved in property decisions in their immediate neighbourhood and that is the 120 metre range that is used to determine who gets a notice from the city when an application is being made for height or density change.  Every meeting I have attended has people wondering why the range is so small.  Turns out that the requirement is set out in the Planning Act which says the minimum range is 120 metres – and that is all Burlington appears to do.  Nothing however stops the planners from sending the notices out to a larger range.  Seems to me that this is an opportunity for council members to better serve the interests of their constituents by having the Planning Department advise the council members when a notice is to be sent out and asking the council member to suggest what the range should be.


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