Illuminating the often-murky world of Section 37 of the Planning Act. (Hint: it's where some important money comes from.)
Let’s all check our language, Gillian Mason told the room of planners, students, and community members last night. The director of the Centre for City Ecology, she instructed us to expunge any jargon from our speech and to raise a hand if something wasn’t making sense to us. This was going to prove difficult, as the topic of the evening’s discussion was the often murky, you-scratch-my-back-I’ll-scratch-yours dealings of Section 37 of the Planning Act—the one which allows the City to barter extra density or height on a development site in return for agreed upon community benefits.
To help matters, the CCE brought in two speakers—urban planner John Gladki and property development lawyer Patrick Devine—to help explain what Section 37 allows, how it’s used, and how it can be improved to better serve Toronto.
To attempt to read the Planning Act, one of the pieces of provincial legislation that guides the planning and development of Ontario cities, is to submit oneself to the sometimes frustrating, often dry, and always dizzying world of legalese. You can do A, but not B, except if you do C, subject to D, excluded when E is involved, which it only is if you do A and B together and then stand on your head and spit three times. Simply put, it’s not the type of document you curl up with at night with a glass of wine.
Understanding the implications of this document, however, is crucial to anyone interested in grasping how planning decisions are made in the City of Toronto, what decisions the City is actually allowed to make, and what tools are available to build the kind of city we want and need. Section 37 is one of those tools.
To quote directly from the Act, Section 37 says: “The council of a local municipality may, in a by-law passed under section 34, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law.” Essentially, the developers get to extract more value from their land in exchange for providing community benefits; they do this by providing capital facilities or cash that go to capital facilities: they install public art, provide daycare space, do heritage preservation work, and so on.
Section 37 is predicated on the idea that the community should share in the economic uplift a developer gets when the City allows them extra density or height (and thereby higher profits), but also that negative effects of a higher density development should be mitigated. These benefits are negotiated by the councillor in the ward in which the development is situated. Some of these negotiated benefits, such as Wychwood Barns, are probably seen as a good use of Section 37 money, while others, like the instance of a $70,000 dog drinking fountain mentioned by Devine…not so much.
And that is where Patrick Devine sees a problem. “The fundamental problem with Section 37 is the governance issue,” he said, calling each ward councillor the “kings and queens” of their areas. He recounted one story of a time he had brought suggestions for community benefits, based on community consultation, to the councillor in question. This councillor’s response: “Why are you even talking to me about this? There’s only one person who can decide where that money’s spent. Me.” While this reaction is hopefully atypically dramatic, the point is that there needs to be more community involvement and oversight in these decisions.
Devine argued that we’d do better with a different model of government, which would see half the current number of councillors elected in wards that matched the Provincial and Federal ridings (right now there are 44 councillors, each of which have roughly half of one federal/provincial riding), with another 22 councillors elected at-large among four districts. This, Devine said, would allow decisions to be made by councillors not beholden to a narrow geographic area.
John Gladki was also concerned with the lack of community consultation on how to spend Section 37 funds, and argued that the public needs to be involved earlier in the process. He also raised another persistent problem: the greatest needs are often in areas where development isn’t as robust. He suggested that we need to find a way to distribute some of the funds to areas across the city rather than keep each development’s Section 37 funds in its surrounding neighbourhood. Gladki also suggested opening up Section 37 to funding maintenance as well as capital expenditure, which would allow for things like ongoing park upkeep.
The audience’s response in the discussion afterwards highlighted the importance in reforming Section 37 in another way—to demystify a process that often feels a bit too back-room-dealy for some. People argued that it allowed councillors to sprinkle benefits around their ward, currying favour to those groups that may help them win re-election, rather than going toward the projects that are best for the community at large.
Whether this is always the case, one thing that everyone in the room agreed on: Section 37 could benefit from a little tweaking to become more transparent and better involve the community.