In our last post, we described how one of the provisions in Ontario Bill 23 would deny residents the right to appeal municipal decisions. The government seems to feel residents’ appeals cause unnecessary delays in getting development proposals approved.
If you would like to read the full text of the Bill, click here.
In this post, we’d like to examine some of the potential sources of the delays in that approval process and some ideas on how the approval process can be shortened.
Large Variances
Consider this, we regularly see developers who ask for variances that are so large they go so far beyond what normal people would consider reasonable. And, in the past, we were seeing the Committee of Adjustment approving many of these. In fact, in 2016, the Etobicoke/York COA panel approved EVERY application to sever a property in Long Branch. Some of these were appealed to the OMB by residents. EVERY OMB decision that year was in favour of the severance.
Given this history, it shouldn’t be hard to see why Long Branch residents are so cynical about our Committee of Adjustment.
The City of Toronto approved changes to its Official Plan in 2018 to clarify policies on how development proposals should fit with neighbourhood character. That year, we also saw approval of the Long Branch Neighbourhood Character Guidelines, which provided clarity on the character elements in Long Branch.
However, while these regulatory changes made standards clearer, they did not stop some developers from making unrealistic demands in their applications.
So, part of the blame for the number of appeals has to be placed on developers – at least those who ask for huge variances. More reasonable variance requests would incite less opposition and likely result in fewer appeals.
When is a Minor Variance No Longer Minor?
Probably the term that generates the most debate in development applications and – especially appeals – is the term “minor variance”. The way The Planning Act defines it, ALL variances are minor by definition, regardless of their magnitude. However, The Planning Act also permits municipalities to provide clearer definitions on when a minor variance becomes too large to be considered minor. To date, no municipality in Ontario has adopted clear guidelines on minor variances.
One of the reasons “minor variance” is so contentious is that lawyers argue about the impact of a variance on neighbouring properties or a neighbourhood. Impact is subjective and therefore subject to interpretation and debate. A numeric standard for minor vs. major would be considerably less subject to interpretation because it is objective.
Developers point to restrictive bylaws as a major regulatory hurdle they face. And there is a degree of truth in that in some areas. But the bylaws are created by legislators, not residents. Only legislators have the power to change bylaws.
So, our legislators have contributed to the volume of appeals by allowing vague standards to be used in evaluating development proposals.
The Hearing Process
A typical COA hearing for an application takes about a half hour. The Applicant, or his/her representative has 5 minutes to outline the merits of the proposal. If anyone objects, they are given 5 minutes each to describe their concerns. Similarly, anyone supporting the proposal has 5 minutes to explain why. The hearing wraps up with the Applicant addressing any resident concerns and re-capping the merits of the proposal.
When we look below at the time involved in an appeal, perhaps the Committee of Adjustment is not the process best suited to adjudicating more complex planning applications. Perhaps we need some other form of primary adjudication that allows more time to examine applications in greater detail.
The Appeal Process
Short of a judicial review, the only recourse for participants in the COA process is to appeal to TLAB – the Toronto Local Appeal Body.
By comparison, when a COA decision is appealed to TLAB, there is no typical timeframe. We have seen hearings go as little as two days up to 14 days. So, why are these hearings so long?
The Applicant is first to present their case. Usually the first witness is an Expert Planning Witness who describes how the proposal meets the requirements of the Official Plan and/or the Bylaws, and how the proposal conforms to Provincial policies. It is not uncommon to see a Planning witness require a full day to present his/her testimony. After the Planner has testified, he or she is then cross-examined by the Residents (or representative) and by the City’s Legal Staff, when the City decides to be a Party to the hearing. The Applicant’s lawyer then is allowed to re-direct – to rebut some of the issues that might have come up during cross-examination. Cross-examination and re-direct can easily represent another full day.
The process is similar if an arborist is involved, though usually this will require a day to complete testimony, cross-examination and re-direct.
Depending on whether the City has taken on Party status, the above process repeats with Residents – and the City – presenting their cases. The biggest difference between the City’s case presentation and the Residents’ is that the Residents are not very likely to have an expert witness and more likely to have several neighbours who wish to have their concerns heard.
The longest TLAB case we participated in was 14 days and, in that case, the Applicant introduced a revised plan in mid-hearing, so the whole case was effectively heard twice.
When a case reaches TLAB, it becomes very high stakes because appealing a TLAB decision may require going to the courts. So there is a tendency to pull out all the stops on evidence to ensure all possible arguments are incorporated into the case. If the Applicant introduces 10 points about why their proposal should be allowed, then there are 10 points to probe on cross-examination.
So how can appeals be made shorter?
Some TLAB adjudicators tend to be more interested in allowing all Parties to present all their arguments than in limiting debate so they can conduct a hearing which all Parties would consider fair and impartial. Some of the arguments are complex (e.g., what is a minor variance), making it a challenge to limit debate.
One factor in the protracted length of TLAB hearings is that TLAB usually one schedules two or three days for hearings at the outset. By the time the adjudicator realizes this is insufficient, the adjudicator has to scramble to schedule additional hearing days so that he or she can find dates when all the Parties can be in the same room at the same time. This can add weeks, if not months to the hearing process. It’s frustrating for everyone involved: lawyers, TLAB staff, residents, and planners – not to mention the Applicants trying to get their proposal approved.
It might be better if TLAB scheduled 5 hearing days, for example, to book availability for all the lawyers and witnesses. If the hearing can be wrapped up in less than 5 days, it’s more likely everyone will see some of their time freed up and therefore a bonus. (Usually the lawyers don’t have any trouble filling their calendars).
TLAB adjudicators have the power to limit the time available for arguments. This is something judges in the court system also do. In the court system, a judge will ask each party how much time they think they need to present their cases and then negotiate a timeframe that allows for the hearing to be conducted expeditiously. A lawyer might be warned, during the presentation of their case, that they are approaching the agreed-upon time limit.
However, we have seen some lawyers who, despite a TLAB panel member suggesting a time limit, have exceeded their allotted time and then argued for the rest of the of the hearing to be expedited on behalf of their clients.
Perhaps a fixed fee for legal representation should be imposed by TLAB, as opposed to the customary hourly billing system most lawyers use. It could be amazing how much faster cases get presented when there is a cap on how much the lawyers can charge their clients. And a cap on legal fees would result in more predictability on the financial outcome for developers.
Parties to Appeals
Bill 23 appears to be aimed at reducing the number of Parties to appeals at TLAB/LPAT, on the assumption that, with fewer parties involved, appeal hearings will be shorter.
While there is truth in this, it means that not all stakeholders in a development proposal are represented at an appeal. When the City is involved in an appeal as a Party, the City’s legal staff represent the interests of the City – not the residents. We have, in the past, seen cases where the City has cut a deal with a developer that the residents have not agreed with. And the reason for that is that, when residents do not have Party status, they are excluded from any negotiations that might avoid the need for a formal appeal.
In our experience, we estimate the cost of a TLAB appeal for a developer can approach $100,000 in legal fees and expert witness fees. Homeowners are at a disadvantage on two counts: 1.) this is beyond the means of most homeowners in the City and 2.) legal fees are not tax-deductible for residents, as they are for developers (as a cost of doing business). So the net effect is to discourage opposition by imposing high costs on participation.
We would like to see the government allow residents to enjoy the same tax deductibility for legal fees that developers now enjoy. It would at least represent equal treatment for residents and developers.
The LBNA has been able to successfully advocate for Long Branch residents at TLAB without having to resort to hiring lawyers. It has been a team of dedicated volunteers with no formal legal training. For residents, this is a valuable service that a resident’s association can provide its members who lack the knowledge or training to work through the bureaucracy and procedures involved. Residents should not have further barriers to appeal by denying them – or resident’s association advocates – the right to be able to appeal.
And the LBNA’s track record on appeals should stand out as a signal that other things in the development approval process are broken. Without our success, these would not be known.
NIMBYism
We should not overlook NIMBYism. There definitely are people out there for whom any kind of development is bad. However, we believe they are a small minority, and extreme NIMBYism is as bad as aggressive overdevelopment.
The majority of residents are prepared to accept changes in their neighbourhoods. But they want to be treated fairly by the process. They want to have a voice in what is done. And the majority accept that some compromises need to be made to bring improvements to their neighbourhoods.
So perhaps what is needed is, when a COA decision is appealed, the first step should be some form of arbitration or negotiation between ALL parties – not just the Applicant, the Municipality and “specified persons”. Negotiation by litigation is neither simple, effective nor efficient. We think most reputable lawyers would tell you the same thing.
At the end of the day, one of the reasons residents protest development so arduously is that they are not consulted to be able to have input on something that will impact them. We’ve heard some developers say, “It’s my property. I can do what I want with it.” That is an attitude that invites conflict, and it makes the assumption that residents have nothing to offer in the way of opinions or flexibility without giving the courtesy of asking for their input. We’ve heard many instances in which the first time a resident hears about a development on their street is when they receive the COA Notice of Hearing.
Negotiation requires ALL parties to show flexibility. It will not meet what either party wants at the outset, but it ends up with something all parties can at least live with.
“A Government for the People”
In his Speech from the Throne on July 12, 2018, our current Premier described “A Government for the People”, stating, “… that every seat in this chamber ultimately belongs to the Ontarians who sent you here. The privilege of democracy is to temporarily occupy these seats on the people’s behalf. And in so doing, to always be mindful that the power exercised here must always be — and only be — exercised with the people’s best interest in mind.“
What You Can Do
Taking away a resident’s right to appeal a decision is not a fair way to treat taxpayers and arguably demonstrates that elements of this legislation have been hastily put together without thinking through to what the true systemic issues are in getting more homes built faster.
If you share these concerns about Bill 23, please let our MPP, Christine Hogarth, know not only how you feel, but how strongly you feel about it. The LBNA is circulating a template for a letter to Christine Hogarth, but you are also welcome to put your feelings into your own word.
Bill 23 has gone through 2nd reading within two weeks and went for public deputations November 16 and 17th. If you don’t speak up, the Bill will be in place before the end of the year and retroactive to October 2
