EXPLAINER: What does "Section 37" mean for Ottawa's growth?

There's lots of talk at City Hall about "Section 37" and what it could mean for communities, developers and the city as a whole. But what is it? And why is it important to people who live in Ottawa? Robert Janelle explains.

What is Section 37?

Section 37 is part of the Ontario Planning Act that grants municipalities the right to pass a bylaw allowing developers to build developments larger than height and density zoning would normally allow in exchange for facilities, services or other matters. It was added to the Planning Act in 1983 (originally, it was Section 36.)

Wait, what exactly are “facilities, services or other matters?”

Those are left up to interpretation. Municipalities decide what types of requests they might make of developers who want zoning restrictions eased. Those must then be approved by the Ontario Municipal Board.

The City of Toronto has developed the most comprehensive set of guidelines for using Section 37. Municipal planners seeks concessions from developers like conservation of heritage property, public art, parkland improvements, replacement of rental housing that may be demolished for the development, and affordable housing.

Often, negotiations come down to a developer paying cash and the municipality earmarking that money for a community project.

In most cases, those benefits are generally negotiated between city council, developers and the community.

So developers can just hand over some money and bypass zoning restrictions?

Not exactly. Section 37 is sometimes referred to as “density bonusing,” a phrase Toronto city planner Peter Langdon doesn't like all that much. According to Langdon, developers must still submit a full plan to the city, which must then be deemed acceptable to the community before Section 37 negotiations can take place.

How much money are we talking about here? And what kinds of projects?

According to Langdon, whose job includes tracking benefits from the use of Section 37, one the most significant gains was from a North York development where the City of Toronto received $7,412,000.

Those funds have not yet been spent entirely, but the plan is to build a community centre and purchase land for a new service road.

How do developers feel about this?

According to Michael Collins-Williams, director of policy for the Ontario Home Builders’ Association, most developers acknowledge that large-scale developments have a potential community impact and there should be a benefit to those communities.

He said his concerns are not so much with Section 37 itself, but with the fact that a lot of zoning dates back more than three decades and has not been updated to reflect demand for taller and higher-density developments.

“There’s some frustration that the zoning is too low to begin with,” he says.

Collins-Williams also says the cost of Section 37 concessions can be high. And if a municipality demands too much, those are costs that will be passed from the developer to home buyers.

How often has Section 37 been used in other cities?

It is very rarely invoked in other cities across Ontario. Collins-Williams attributes this to the fact that there aren’t many large developments that require zoning changes outside of the Golden Horseshoe region. That said, Toronto has invoked Section 37 more than 350 times.

Has Section 37 been used in Ottawa?

No, it hasn’t.

The section did come up in council discussions regarding Ashcroft Homes' proposed—and controversial—development at the Les Soeurs de la Visitation convent site in Westboro. A document tabled by city legal staff indicated the section could be employed.

So if Toronto is all over Section 37, why isn’t Ottawa?

It’s all about fear of the suburbs. In 1994, the city placed a moratorium on development charges in Ottawa’s downtown core under a program known as Re-Do-It (Residential Downtown Intensification).

City planner Stanley Wilder says that at the time, there was serious concern about losing the city’s population to the suburbs.

“It was impacting school enrolment,” he says. That moratorium on development charges is set to expire in August, though, and that’s led to a flood of development applications for downtown projects.

The city also doesn’t have any guidelines in place for Section 37 negotiations. So even though it wants to use the tool, its guidelines are still in draft form. But things are now moving quickly.

On April 26, the city sent a memo to local community associations advising that they would be consulted about the draft set of guidelines. That consultation happened on May 11 at City Hall. (Check out this presentation by Charles Akben-Marchand, the president of the Centretown Citizens Community Association, for an overview of the city’s Section 37 consultations and draft guidelines.)

Ottawa's draft guidelines for Section 37 implementation

Section 37 - Draft Guidelines, City of Ottawa

So when will the City of Ottawa start using Section 37?

The city's planning committee granted developers some additional time to examine and consult on the draft guidelines. Those guidelines are expected to be formally approved in either July of August, in time to be used once the moratorium on development charges in the downtown core expires.

What kind of guidelines does Ottawa have in the draft?

The draft version of the City of Ottawa’s guidelines looks a lot like Toronto.

In fact, Wilder says, he received permission from the City of Toronto to “massage” that city’s guidelines into something that would suit Ottawa.

As in Toronto, the term “density bonusing” does not appear. It’s replaced by “value uplift.”

Developers looking for a zoning amendment on a project must submit a sound design that fits with the neighbourhood before the city will negotiate benefits for granting the amendment. No amount of money will make it automatic.

“We expect good design,” says Wilder. “That’s not something to be negotiated.”

Enough explanation, though. Tell us what you think about all of this.