*Please note that School of Scheff is not legal advice and should not be taken as such. School of Scheff provides legal information which is specific to the Province of Alberta. Should you reside outside the Province of Alberta, please contact a lawyer in your jurisdiction with any legal queries as the laws across the Canadian provinces vary widely.*
Planning and development are two legal concepts that are often confused. Their differences are important and can cause developers, the public, and municipalities a lot of headache when the terms are misunderstood. These concepts are used to help plan what kind of development can happen on a particular piece of land and in a particular area of a municipality. Zoning, sometimes called districting (and for the purposes of this post, are interchangeable), is an important part of the planning process and should be thought of as the precursor to development. If a piece of land is not zoned for a particular use, that land cannot be developed in that manner until either a) the developer/landowner selects a use that is allowed in that zone; or b) the developer/landowner applies to have the land re-zoned.
Planning and Zoning
Zoning is why you don’t typically see a residential neighbourhood in the middle of an industrial area, or a hotel & bar next to a seniors residence; and why you generally see commercial developments grouped together, and apartment buildings of different sizes distributed throughout a municipality.
These planning considerations help to ensure that a municipality is well-laid out; reduces nuisance; and helps to ensure that its citizens can live and work in a suitable environment. Of course there are exceptions to every rule and no municipality can be planned perfectly. Something that works in one municipality, may not work in another, and each municipality has its own unique considerations.
You will hear this type of planning referred to as “zoning” or “districting”. Zoning is a process by which a municipality defines a variety of areas and then details the types of land use allowed within each area. Each of these zones or districts has a particular set of rules and parameters for what can be done in that zone or district.
For instance, “Residential” is a zone you’ll find in every municipality and as the name suggests, residential usually encompasses single-family dwellings, townhouses, duplexes, and other low-density housing. “Commercial” is a broad term and therefore, you’ll more likely see subsets of commercial such as “Downtown Commercial” or “General Commercial” and in zones like these you may have uses such as child care, restaurants, professional services, gas stations etc.
Land Use Bylaws and Zoning Maps
How do you find out how a particular piece of land or a particular area is zoned? You consult the municipality’s zoning map and then once you know how a particular piece of land is zoned, you consult the municipality’s Land Use Bylaw which will tell you all of the parameters for that particular zone. Most importantly, the Land Use Bylaw will tell you all of the ways that a piece of land in that zone can be used.
Land Use Bylaws also contain development standards such as setbacks, fence heights, parking spaces, building heights, landscaping, and all of the processes and procedures for acquiring a development permit or applying for a re-zoning; which are all integral parts of development.
The Land Use Bylaw is also where zoning and development meet. Zoning tells you what you can or what you could possibly do in that zone, and development is how you actually get the permission from the municipality to use that piece of land for the particular use contemplated.
When you consult a Land Use Bylaw to ascertain what can be done in a particular zone, you’ll note that there will be two lists, a list of Permitted Uses for that zone and a list of Discretionary Uses for that zone. Permitted Uses are types of Uses that a development authority must grant a Development Permit for, either with or without conditions; and Discretionary Uses are Uses that may be able to be done in that zone, but the development authority has the discretion to decide whether or not to allow the use in that particular zone – it is not an automatic right.
For example, in the City of Lethbridge, the Use “Supportive Housing” is often a hot topic and one that is commonly misunderstood. In the City of Lethbridge, there are only three zones in which “Supportive Housing” is listed, and in each of those districts, supportive housing is a Discretionary Use. The three districts are “C-D Downtown Commercial”, “P-B Public Building”, and “R-M Mixed Density Residential”.
The Use “Supportive Housing” cannot occur in any other district or zone, with the exception of “Direct Control” which is a zone that a municipality can use when there is a unique project that does not fit within the confines of the existing zones and requires unique parameters. As such, just because a particular piece of land is zoned in a manner that lists “Supportive Housing” as a Discretionary Use, does not mean that the landowner or developer automatically acquires the right to use the land in that manner – they require a development permit first.
Sometimes landowners will apply for re-zoning and this is another area in which confusion occurs. Re-zoning does not mean that a landowner is applying for a particular use or development, you can re-zone a piece of land without developing it. Re-zoning merely means that the landowner or developer is applying to have the zone changed so that the kinds of Permitted and Discretionary Uses available to them change and therefore, the options for that landowner or developer are expanded.
Once it’s determined that a piece of land is zoned for the type of use that the landowner may want to use the land for, whether already zoned correctly or as a result of a re-zoning application, then they must apply to the municipality for a development permit. This is where the exact use that the landowner wants to use the land for gets debated, but only if it is a Discretionary Use.
A future post will focus on development permits and the intricacies of that process; but for now, the most important thing to understand is that zoning, which is a part of planning, is a completely different process from development. The two work together, but they are not the same.
Zoning and development are integral components of urban planning and each playing a distinct role. Zoning lays out the guidelines for land use, akin to a framework, while development brings this framework to life. Together, they work together to shape the municipalities we call home.