Legal Issues: The regulation of building materials

What subsection 41 (4.1) does, in effect, is establish a limit on the subject matter and information required in the site plan drawings contemplated in s. 41(4)2. This restricts the municipality’s site plan approval power to “exterior design” which includes the “character, scale, appearance, and design features of buildings,” and not the manner of construction or standards of construction.

The City of Waterloo as a case study

Like other municipalities in Ontario, the City of Waterloo has put in place policies and guidelines purporting to limit the use of EIFS through its site plan control process.

The city’s Urban Design Manual includes both the general urban design objectives and supplementary guidelines for specific types of developments or locations in the city, with an emphasis on the site plan review process. While for the most part the guidelines contained in these documents address matters properly considered as part of a municipality’s site plan review process, there are a number of policies purporting to regulate what construction methods and materials may be used and where. For example, Guideline 37 of the Urban
Design Manual dictates the circumstances in which EIFS may be used:

37. Reserve stucco and EIFS (exterior insulating finishing systems) for architectural features, accent(s) and additions rather than primary wall material. Consider a range of strategies to reduce the scale of larger wall façades, including larger window openings, curtain wall systems, spandrel panels and alternative materials.

Similarly, certain guidelines in the city’s Supplementary Design Guidelines and Northdale Urban Design Guidelines prescribe the type of materials and how they ought to be utilized in different circumstances. For example, Guidelines 3 and 5.10.6 of each set of guidelines, respectively, purporting to restrict the use of EIFS:

3. Design buildings with high quality materials, including brick, stone, masonry, decorative panels and glass. Restrict stucco and EIFS for accent purposes rather than primary wall material.

5.10.6 Building Materials

The following building materials are preferred in the Northdale Study Area: architecturally finished block, stone, granite, metal and wood panels, brick, glass and spandrel glazing finishes. These elements will be approved through the site plan process and would help establish expectations for all buildings. The use of stucco as an exterior finish should be minimized especially at grade.

While the city has the authority to regulate the character, scale, and appearance of development through the site plan process, it does not have the authority to regulate the actual materials used in construction beyond matters of appearance.

In Ontario, the use of EIFS is regulated by OBC. By virtue of section 35 of BCA, since the use of EIFS is monitored by code, it cannot be regulated in a different or more restrictive way by a municipality. Further, the Planning Act draws a bright line on the limit of a municipality’s power to regulate site plan control matters—the authority does not extend to matters related to the standards or manner of construction. While municipalities may regulate the ‘look’ of a particular finish, the choice of construction materials achieving such a prescribed appearance is a matter to be dealt with pursuant to the regulations prescribed in OBC.

Conclusion

The provisions of BCA and the Planning Act, when read together, make it clear a municipality does not have the jurisdiction to regulate the use of particular construction materials under the auspices of its site plan control authority. Though a municipality may provide for such things as the appearance, character, or scale of development through urban design guidelines, it does not retain the power to regulate the materials that can or cannot be used in actual construction. It is on this basis the policies and guidelines introduced by the City of Waterloo—one example of the practice employed by other municipalities across the province—illegally and improperly trench on the division of powers set out in BCA and the Planning Act.

Leo Longo is a senior partner at Aird & Berlis LLP and a member of the firm’s municipal and land use planning group. Admitted to the Ontario Bar in 1979, Longo’s practice is devoted to all areas of land use planning and development and municipal laws. He is certified by the Law Society of Upper Canada (LSUC) as a municipal law specialist in both local government and land use planning and development law. He is the 2010 recipient of the Ontario Bar Association’s (OBA’s) Award of Excellence in Municipal Law. He is a member of the International Municipal Lawyers Association (IMLA) and a member and former chair of both the Canadian and Ontario Bar Associations’ (C/OBAs’) municipal law sections. Longo can be reached at llongo@airdberlis.com.

Meaghan Barrett is an associate in the municipal and land use planning group at Aird & Berlis LLP. She provides advice and representation to both private and public sector clients, regularly appearing before the local planning appeal tribunal, the Toronto local appeal body, and various committees. Barrett is particularly interested in matters relating to the Ontario Heritage Act and other heritage protection and conservation issues. She also works on a variety of municipal accountability matters. Barrett received her law degree from the University of Ottawa and was called to the bar in 2016. She is a member of the Canadian Bar Association (CBA), Ontario Bar Association (OBA), Ontario Expropriation Association (OEA), and the Urban Land Institute (ULI). Barrett can be reached at mbarrett@airdberlis.com.