Transitioning from old to new zoning regimes
City Council repealed the city-wide Zoning By-law 1156-2010 on May 18, 2011 and directed staff to meet with the appellants and return to Council with a revised version. When staff met with appellants of the former by-law many of their concerns related to the transition from the old to the new zoning regime such as:
- treatment of pipeline development applications
- recognition of variance and bylaw permissions
- treatment of existing buildings
New transition provisions
To ensure the new City-wide Zoning By-law is fair and manageable city staff developed a variety of transition provisions for the period after the by-law is enacted. These provisions include:
- A Transition Protocol and Transition Clause will operate to allow development applications that are in the 'pipeline' when the new Zoning By-law is enacted to continue under the former zoning rules
- A Minor Variance Clause will allow most existing variances under the former zoning regulations to continue under the new Zoning By-law
- Site Specific Exceptions will recognize site specific zoning permissions of existing buildings and those under construction as prevailing over the general rules of the new Zoning By-law
- Grandfathering or Exemption Clauses will shield lawfully existing buildings from compliance issues with the new Zoning By-law's regulatory standards
The Transition Protocol concept introduced with the repealed by-law will continue in the new version. As before, the Protocol establishes criteria to determine whether to include a specific property in the new Zoning By-law. The current in force zoning by-laws will not be repealed. These 'former general zoning by-laws' (a defined term in the new By-law) will continue to apply where the new Zoning By-law does not.
The Transition Protocol enables zoning regulations to be applied fairly to all properties across the City under the applicable by-law, whether it be the former existing or the newly enacted one. Eventually, it is intended to incorporate all properties within the new Zoning By-law. The Explanation of the Transition Protocol in the staff report Attachment #2 starting on page 33, outlines the criteria for each category of properties that will not be included in the new Zoning By-law.
The new version of the Protocol has been expanded so that the new Zoning By-law will not apply to sites with applications for zoning by-law amendments that have not resulted in a building permit. If a rezoning has been approved and a building permit issued, the site will be included in the new Zoning By-law and the zoning amendment will be recognized as a Prevailing By-law in Chapter 900.
The Transition Clause determines how active applications for a zoning certificate, building permit, minor variance, site plan approval, consent to sever, draft plan of subdivision, plan of condominium, payment in lieu of parking agreement or part lot control exemption will be treated after the new Zoning By-law is passed. Please note that this Clause does not include a request for Preliminary Project Review (PPR). If any of these complete applications were submitted prior to the enactment of the new Zoning By-law, they will be reviewed, processed and approved under the former zoning rules. The Transition Clause ensures that a dual review of existing applications for compliance under the new and former zoning by-laws will not be required. The new Zoning By-law will apply only to new applications submitted after it is enacted. The Transition Clause will be in effect for five years. The Transition Clause can be found in Chapter 2 of the revised draft Zoning By-law.
For example, if an application for a zoning certificate submitted under one of the former general zoning by-laws before the new Zoning By-law is passed identifies required minor variances, the Transition Clause permits an application for these minor variances to be made after the new By-law is enacted and approved under the former general zoning by-laws, as well as relied upon in a building permit application. Applications for site plan are included in the Transition Clause as well as the Transition Protocol as a safeguard. The Transition Clause allows a process initiated before the enactment of the new Zoning By-law to continue under the former general zoning by-laws for a five year period.
The Minor Variance Clause regulates how minor variances to the former general zoning by-laws will be treated when the Transition Clause is no longer in effect. It permits previously approved minor variances to be relied upon, but only if the provision varied has remained the same or becomes more permissive in the new Zoning By-law. The Minor Variance Clause explicitly states that the definitions of the former general zoning by-laws will be used as needed to apply these minor variances in the context of the new Zoning By-law. The Minor Variance Clause is also found in Chapter 2 of the revised draft Zoning By-law.
Minor variance approvals to regulatory standards that become more restrictive in the new Zoning By-law can be protected by a building permit issued within the five year limit prescribed by the Transition Clause. Otherwise, the new Zoning By-law will apply.
Chapter 900 contains all the Site Specific Exceptions to the main text of the new Zoning By-law. The introductory wording for Chapter 900 outlines three types of Site Specific Exceptions: Site Specific Provisions, Prevailing By-laws and Prevailing Sections. Site Specific Provisions are textual. Prevailing By-laws are references to amendments to the former general zoning by-laws. Prevailing Sections are references to sections of the former general zoning by-laws. All three operate in place of any inconsistent regulations in the main text of the new Zoning By-law. Both Prevailing By-laws and Sections are read in the context of the former general zoning by-laws, ensuring that they may rely on the applicable definitions in the former general zoning by-laws.
The Transition Protocol will operate to prevent the new Zoning By-law from applying to properties with active site plan and rezoning applications that have not received a building permit. The Site Specific Exceptions in Chapter 900 recognize the permissions for existing buildings or those under construction. The new Zoning By-law will apply to any new building or addition not regulated by a Prevailing By-law or Section.
The new Zoning By-law will contain a series of Grandfathering or Exemption clauses. These Exemption clauses will apply to the building standards in the By-law including height, setbacks, gross floor area, lot area and lot frontage requirements. Each Exemption clause provides that the condition of a "lawfully existing" building is the permitted zoning requirement for that building. The terms "lawful" and "lawfully existing" are defined in the new Zoning By-law to clarify what is exempted by these clauses.
If a "lawfully existing" building is taller than the maximum height permitted in the new Bylaw, the height of that existing building is the maximum permitted height limit for that building. Any new buildings or additions must comply with the Zoning By-law requirements.
The definitions of "lawful" and "lawfully existing" are found in Chapter 800. The Exemption clauses themselves are found in Chapters 10-100 in juxtaposition with the regulatory standards being exempted and have Clause numbers that end with "1". The following is an example of an Exemption clause for height in Residential Zone category:
10.5.40.11 Height Exemptions
(1) Permitted Height for Lawfully Existing Buildings
In the Residential Zone category, if the lawful height of a lawfully existing building of structure is greater than the maximum height permitted by this By-law, that lawful height is the permitted maximum height for that lawfully existing building or structure.
Former General Zoning By-laws
The enactment of the new Zoning By-law will not repeal any of the existing general zoning by-laws. The continuance of these by-laws will be necessary for a variety of reasons. They will regulate the properties that are not included in the new Zoning by-law according to the Transition Protocol. Applications during the five year window created by the Transition Clause will be processed pursuant to them. Their definitions will be used to apply the permissions of minor variances, prevailing by-laws and prevailing sections. Finally, they can establish that an existing building is 'lawfully existing' with a 'lawful' regulatory standard.
An interpretative provision recognizing the continued existence of the general zoning by-laws has been inserted into Chapter 1 and the definition of 'former general zoning by-laws' is in Chapter 800.