“Zoning” refers to the ability of local governments, under the Local Government Act, to regulate the form and character
of development. This is accomplished by
passing laws (known as bylaws when passed by a local government) dividing a
municipality or regional district into land use “zones”. In each zone the local government can limit
how land can be used within that zone.
The purpose of zoning is to provide for orderly development so that
adjacent uses are compatible and expenditures for infrastructure are
coordinated. Historically, the key
feature of zoning was separating land uses.
It helped to prevent heavy industrial uses in residential areas. Zoning can also be used effectively to steer
development away from environmentally sensitive areas, and concentrate
development in more built-up areas.
Typical
Zoning By-laws
Each local government’s zoning bylaw is different; get a copy from your
local government. However, typically
zoning by-laws divide the municipality or regional district into zones and then
provides a description for each zone.
The description will set out:
·
the intent of the
zone (residential, commercial, industrial, institutional),
·
the allowed uses,
·
how buildings shall
be developed on site and the maximum and minimum sizes of buildings, and
·
Site specifications include front, side and rear yard
setbacks from the property line.
Zoning bylaws may be used to regulate:
·
the use of land, building and structures;
·
the density of the use of land, buildings and
structures;
·
siting, size and
dimensions of buildings and structures and uses that are permitted on the land;
·
urban green spaces, environmentally sensitive areas,
tree protection, parks
·
vegetation requirements; and
·
riparian setbacks and other protection measures for
watercourses.
Local
governments may also designate temporary commercial and
industrial use permit areas, and may specify general conditions regarding
the issue these permits in the zoning bylaw.
For environmentally sensitive areas and parks, local governments can
create low density zones to keep development away from habitats. At the same time, local government can
create higher density mixed-use zones to concentrate development in built
areas. Zoning bylaws can also specify
watercourse setback requirements.
Local governments may not restrict farming by bylaw per se, unless it
passes a farm bylaw approved by the Minister. The farm bylaw may regulate the
conduct of farm operations, buildings and facilities, the storing of materials
and waste, and may also prohibit specified farm operations.
Zoning can be very flexible, giving council a lot of options in
regulating development and other land use.
Usually it is the political will, and not the legal powers, that is
required. The following are some tools
that councils can use to add further flexibility to problems involving zoning:
·
Comprehensive
Development Zones – Comprehensive
development zoning (CD’s) allows local governments to create mixed-use
developments on a single parcel. CD’s
provide flexibility to local governments to closely tailor developments to site-
and neighbourhood-specific needs. Each
CD zone is unique and amounts to a detailed agreement between the local
government and developer as to how development will occur. The use, density and siting regulations are
not listed in the CD zone bylaw, but are as described on the landowner’s
development plans, a copy of which is made a “schedule” to the bylaw. CD zoning is most often used for large
sites.
·
Density Bonus – Some zoning bylaws establish a system where developers can choose to
provide to the community an amenity such as parkland or affordable housing in
return for being allowed to build more units on a property than would otherwise
be permitted under the zoning bylaw (called a “density bonus”). This gives the developer a financial reward
for giving something to the community.
Density bonuses have been used to create parks, walkways or open space
or to protect environmentally sensitive areas or watercourses.
·
Variances – If a landowner will experience “undue hardship”
because of the application of a zoning bylaw, the Board of Variance, on
application by the owner, may relieve the
property from complying with all the requirements of the zoning bylaw. The Board is empowered to make only “minor”
variances from the zoning bylaw. A
board of variance is prevented from issuing a variance if the board is of the
opinion that the variance would adversely affect the natural environment (section
901).
Down-zoning
and Compensation
Down-zoning is re-zoning land to decrease the density of the use or to
increase the restrictions on the use to which a property owner might wish to
put a property. Local governments have
down-zoned land to:
- reflect official
community plan policies;
- restrict
different types of development; and
- at the request of
neighbours.
Councils or developers sometimes believe that downzoning requires the
local government to compensate the developer for lost property. As a general rule this is not true – Councils
have the discretion to change zoning, even if it adversely affects the value of
property, without having to pay the owner for that decrease in value. It is interesting to note that the reverse
phenomenon – “up-zoning” which increases the options open to the private land
owner – is rarely criticized.
However there are limits on the zoning powers of local governments. Local governments cannot use zoning bylaws:
- for the purpose
of de-valuing the land (as opposed to where that is an incidental effect
of a valid planning purpose);
- to restrict the
use of private land to public uses, for example a park (unless they
expropriate the land or pay compensation); however, the zoning may severely restrict the landowner’s
use of the land, provided the land owner retains legitimate private uses;
or
- for another
improper purpose such as punishing the land owner.
If a local government passes a zoning by-law that is illegal for one of
the above reasons it might be required to pay compensation. Fortunately the courts have generally been
willing to assume that local governments are exercising their zoning powers
properly unless there is clear evidence to the contrary.
Public
Hearings
As a general rule a local government must hold a public hearing before it
may change the zoning on a property.
This requirement may be waived if an official community plan is in place
and the new zoning is consistent with that plan. However, in all other cases the local government will need to
advertise the proposal to rezone the lot and set a time to hear from members of
the public. This is often an important
opportunity to gather information about a proposal and to let the local
government know how you feel about it.
A change in zoning can be challenged in court if the local government
failed to hold a public hearing.
Related Guide Pages:
·
Local Government Act
·
Local Government Act – By-laws
·
Local Government Act – Official
Community Plans
For more information on the Local Government
and Zoning:
·
An electronic copy of the Local Government Act, Part 26, Division 7.
·
Linda Nowlan, Chris
Rolfe and Kathy Grant, The
Smart Growth Guide to Local Government Law and Advocacy (Vancouver: West
Coast Environmental Law, 2001).
·
Ministry of Community, Aboriginal and Women’s Services,
Density Bonus
Provisions of the Municipal Act: A Guide and Model Bylaw (March 1997).
·
“Zoning Bylaws” from
the Successful Communities Forum’s Citizen’s
Guide to Development Planning.
