If you are interested in a parcel of land and have a specific use that you want to confirm is permitted for the parcel, the first step is to check the municipality’s Official Plan, zoning map and zoning by-law(s). Asking the municipality, and possibly the County, to confirm the parcel’s current zoning can be of great assistance as they are more familiar with their Official Plan and by-laws. If the proposed use fits within the zoning provisions, then the use is an approved use under its current zoning. Even so, there may be one additional step required depending on the municipality. If the proposed use is a change to the current use of the property you may be required to obtain Site Plan Approval from the municipality.
What happens if the use does not fit under the current zoning and how do you get it changed to something that will allow your development plans to proceed?
The first step is to go to the municipality’s Official Plan and read the policy statements on the uses that are intended for the area/zoning. If the policies described appear to include the kind of use you propose, you can argue to the municipality that proposed use conforms with the Official Plan. If the planning department of the municipality agrees with you that will help the process. From there, you may need to apply for an amendment to the zoning by-law so that your proposed use can be included in the permitted uses for the property. You may be obligated to enter into a site plan agreement to deal with any concerns the municipality may have about the development.
If your proposed use of a parcel of land does not conform with the provisions of the Official Plan and zoning by-law, then an amendment to the Official Plan is also required. Amendments to Official Plans are often difficult to achieve. The Official Plan has come into effect only after public consultation, extensive professional planning input and usually close scrutiny by the approval authority. Official Plan amendments may not come easily. If there is logical professional planning support available for the proposed amendment and the change seems to make sense within the context of the general plan for the municipality, changes may be approved. If the Official Plan amendment is granted, the way is usually cleared for the related zoning by-law amendment. Again, a site plan agreement may be required, which will involve more negotiation with the municipality to deal with the fine tuning and control provisions after the land use amendments have been granted.
When considering an application to amend an official plan and/or a zoning by-law for a major project, a respected professional lawyer and planner are necessary members of your team. Development terminology and issues can be convoluted and complex and a good knowledge of how the system works is essential. Proposals will be considered by the planning staff of the municipality who will make recommendations to their council and possibly committee of adjustments depending on the applications needed. If the project makes sense to the municipal planners, albeit a world full of professional subjectivity, your planner and lawyer can often work out the details with the municipality so that when the proposal goes to the council for a decision, it will go with a recommendation from the municipal planning staff for approval. Councils usually follow the staff advice, and the way will be cleared for your development. If the planning staff cannot be convinced or the planning staff do not agree with the proposed change to zoning or other development application, the opposite it true and council will likely follow staff’s recommendation. If the proposal/application is rejected by council or the committee of adjustments, then you have the option to appeal the decision to the Local Planning Appeals Tribunal where the quality of your professional planning and legal support becomes even more important as they will advocate on your behalf for why the proposal/application should be approved despite council’s decision.
In the end, achieving Official Plan and zoning amendments can be a long and involved process and there is no guarantee of success but there is little to no alternative to being granted the land use approvals required for your proposed change of use. Finding the right lawyers and/or planners to assist you throughout is critical to being able to navigate the process quickly and efficiently.
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If you have questions about real estate zoning and development and how it might impact your project, please contact us.