“Minor Variance” is a vague legal term that indicates only that a design element for a property exceeds a bylaw standard. It is probably the most-argued item in a planning case and usually the debate centres around whether the impact of the variance is or is not minor.

If you’ve received a Committee of Adjustment notice about a hearing for a nearby property, look at the list of so-called “minor variances.” Some may exceed the bylaw by only a few percentage points. But others may exceed the standard by 50%, 90% or more – but they remain “minor” variances.

In our previous post, we informed you that Councillor Diane Saxe of Ward 11 had brought forward a proposal for The Planning and Housing Committee to adopt a bylaw that would clearly define when a variance is too large to be considered minor.

This was discussed at the January 29th meeting of the PHC and ulimately a motion was passed to “explore this topic in more detail”.

Here’s a link to the video recording of the PHC meeting, with attachments.

ISSUES

I have two concerns about this motion.

First, it seems Councillor Saxe’s focus is on high-rise development, where developers try to add significantly more floors to a project than the bylaws permit – ostensibly to increase the number of housing units built. My concern is that minor variances for smaller projects will not receive the same consideration.

Second, creating regulations is the easy part of public administration. If the regulations are not rigorously followed, then all the work that went into creating the regulations is wasted. I do not feel the planning review process – including the COA – is enforced well enough.

DISCUSSION

What seems to be driving Councillor Saxe is (a) ensuring developements in her ward are of reasonable scale (b) that there is a mechanism in place so planners can say “NO” to developers’ proposed heights and (c) a mechanism exists to prevent developers from settling on a height limitation through the COA/TLAB process and then using this as the basis for asking for even higher heights.

There is no question this is a much-needed approach to managing development but, if a bylaw defining limits on high-rise minor variances is implemented, it may be done without giving consideration to application of the same principles to low-rise residential housing. That would be a terrible disservice to ordinary homeowners like us.

If you have ever read through the City’s bylaws, you would find they are actually very detailed and it is very easy to see what is and is not permitted.

When a developer submits plans to the COA, it goes through a review process and a Zoning Review Officer first identifies all variances from bylaw standards, This is pretty much black and white.

The developer then works with a Planner assigned to the proposal. The Planner is supposed to point out the magnitude of the variances and ask why they are needed. (Frequently on the Application Form for a proposal, developers simply say “We can’t work within the proposed standards”). There often is a process of negotiation between the Planner and the Developer to come up with enough of a compromise that the Planner will agree to submit the application to the COA panel for a formal public review.

We have seen too many examples, here in Long Branch, where Planners did not seem to push back hard enough against developer demands and sent proposals with large variances to the COA. A bigger concern would be if their managers overruled the Planners and asked them to submit anyway.

So much for the process that occurs before an application makes it to a Committee of Adjustment hearing.

We looked at the Etobicoke York COA’s disposition of applications from 2011 to 2018 and saw a distubing pattern.

From 2011 to 2015, the COA approved just under three-quarters (75%) of the residential applications they reviewed. In 2015, the committee members approved EVERY application presented to them.

If you were to look at the correspnding years for the OMB, you would find a similar pattern – including 2015, where the OMB upheld every one of those COA approvals.

In my own case, four members of the COA (the entire panel on that particular date in 2019, saw no problem in unanimously approving a severance proposal with 5 minor variances despite recommendations to refuse from the Planner who reviewed the file, Urban Forestry and Councilor Mark Grimes. They chose to ignore the arguments of the residents who wrote letters of objection and who appeared before them. They didn’t have to explain what led them to overrule what Planning had recommended (i.e., a refusal)

You probably would think an appeal would provide an opportunity to question the COA panel members to get some insight into their decision.

However, what the City offers as an “appeal” is actually a whole new hearing before the Toronto Local Appeal Body. A TLAB hearing is not limited to the 5-minute deputations allowed under the COA process. Witnesses can talk much longer than that. A TLAB hearing also is expensive because usually it involves lawyers for the Parties, Expert Witnesses and so on.

Unlike the generally accepted legal concept of an appeal, a TLAB hearing does not examine the COA decision at all. In fact, TLAB rules do not permit Parties to call COA panel members as witnesses – even as hostile witnesses.

In other words, there is no oversight on the COA decision-making process and no real accountability on the part of COA panel members, all of whom are public appointees.

On the other hand, the Planners who reviewed the application CAN be and ARE called as witnesses at TLAB. They can present their reasons behind their analysis and decisions, and they are also subject to cross-examination by the Parties’ lawyers.

Additionally, “appealing” a COA decision to the TLAB can come with a hefty price tag. The lawyer who wrote your will or helped you with closing a house purchase don’t usually have the knowledge of administrative and/or Planning law to be able to represent you effectively. You may need an expert planning witness to help present your case and to help counter the testimony of the expert planner who will undoubtably be called by the developer’s lawyer.

Currently, if you feel a city committee or department has treated you unfairly, your only way to have someone examine the issue is to go to the City’s Ombudsman. While they might find in your favor, the Ombudsman does not have the power to overturn a decision in a City department, only make recommendations to try to avoid a recurrence of the issue being appealed. In other words, it’s an appeal without any real teeth.

WHAT ACTION IS NEEDED?

First, City Planning should discontinue using the term “appeal” with respect to TLAB hearings or explain that a TLAB hearing is a new hearing of the evidence following the same rules of evidence and procedure as one might find in the court system. TLAB hearings are very professional in their approach and there are some outstanding legal minds among the panel members. TLAB hearings are not appeals in the commonly understood legal sense of the word, which suggests there will be a review of the COA decision and the reasoning behind it – and therefore this needs to be more clearly communicated.

Second, Planning should require COA panels to fully articulate the reasons behind their decisions. What currently passes as “reasons” for a COA decision is actually boilerplate text used throughout the City by all the COA panels. The Planning Act requires that COA decisions be published with reasons behind the decisions. But what City Planning offers as “reasons” would not stand up to scrutiny in a court of law.

(By contrast, in the case of TLAB, panel members write up decisions in much the same manner as judges in the court system. They comment on the evidence presented to them and explain in detail how they arrived at their decision.)

Third, City Planning needs to implement some kind of safeguard against COA panel members executing their duties carelessly or with biases. Panel members are appointed, not elected, so the appointment process should include more due diligence on the backgrounds of the individuals under consideration and the ability to discard a decision that has been made carelessly or where some form of bias has come into play. If a decision HAS been made without due care on the part of panel members, it should, at the very least, be subject to a re-hearing by a completely different panel.

Should COA panel members exhibit behaviours that are not consistent with offering residents a fair and impartial hearing, they should be removed from their positions, not just moved to another panel within the City.