Tag Archive for: Planning and Housing Committee

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Defining “Minor Variance”

“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.

Etobicoke York COA Decision Analysis 2011 - 2018 "Minor Variance"

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.

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When Is a Variance No Longer Minor?

At some point, you probably have seen a notice from the Committee of Adjustment about a development application near you. The reason you are receiving the notice is because, in the application process, an examiner has decided there are elements in the application that exceed what the current bylaws permit.

In legalese, these are called “Minor Variances”.

In our experience at the Committee of Adjustment and TLAB, so-called “minor” variances can often be anything but what most people would consider minor. We’ve seen variances that are double or triple what the bylaws permit. Because the legal framework for minor variances is vague, these minor variances are the underlying source of the most debate in development applications.

A recent example is the proposed development between Long Branch Avenue and Thirty First Street calls for condo towers that are 30 storeys tall – very different from Long Branch’s low-rise character and taller than any other building in the neighbourhood.

Planning and Housing Committee Item – 2024.PH9.13

On January 29th, the councillor for Ward 11 is presenting a proposal for the Planning and Housing Committee to implement a bylaw that defines how far a design element can deviate from the standard before it no longer qualifies as a minor variance. It will be well worth sitting in on the presentation to see if our Planning Department will agree to move forward with a plan to provide clear guideliness to developers on the definition of “minor variance”.

Here’s a link to the agenda item. https://secure.toronto.ca/council/agenda-item.do?item=2024.PH9.13

The Planning Act allows municipalities to adopt measures to define limits on what can be called minor, so what Councillor Saxe is proposing is consistent with the regulatory framework.

Thus far, Toronto’s Planning Department has apparently decided to take a wait-and-see approach.

Oakville’s Town Council tried to introduce limits on minor variances a few years ago, but this did not go through. It seemed Toronto wanted to see how the concept went over in Oakville before considering it for our City.

Here’s What You Can Do

Maybe now we’ll see some action. But don’t hold your breath. Let our councillor – and Deputy Mayor – Amber Morley know how you feel about minor variances and submit your thoughts and feelings to the Planning and Housing Committee.

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The COA Process Needs Fixing

With the passage of Bill 23 in December, 2022, Ontario residents no longer have the right to appeal a Committee of Adjustment (COA) decision.

This presupposes that the COAs deliver well-thought-out decisions based on evidence and application of existing regulations.

Applications that go before the COA generally fall into one of two broad categories. Minor variance applications typically are for new housing or renovations to an existing home. These are by far the majority. The other category is Consent applications – severances of a property into 2 or more parcels of land for some form of new construction.

The COA Process

When a minor variance application is to go before the COA, formal notices are sent out to neighbouring properties within a 60 meter radius. Residents are allowed to voice opposition by writing letters of objection or speaking before the COA panel during the formal hearing on an application. Often, residents’ concerns are about shadowing of their properties, lack of privacy and the style and/or scale of the proposed structure. Sometimes, there is only one minor variance being requested, but we have seen examples with as many as 8 minor variances.

The COA allows 5 minutes to each resident to express their opinions and concerns. The applicant likewise has 5 minutes to present his/her case, but also have the right to 5 minutes to offer a rebuttal to residents’ concerns before the committee renders its decision.

It may sound unfair to limit each resident to 5 minutes of speaking, but the COA has a huge volume of applications to process. In 2017, for example, the COA closed out 4,344 applications across the City – a little over 17 applications per working day. In 2017, COA panels across Toronto approved 3,398 of those applications – approximately 78%.

A Consent application usually ends up being at least 3 applications: one to sever the property and the other applications would centre around minor variances on the construction on the resulting parcels of land. At the COA, all of the sub-applications for a Consent application are heard together as one.

As with a minor variance application, residents are notified, they have the right to submit their concerns in writing and/or orally before the COA. Each resident is still only allowed to speak for 5 minutes, and the applicant has 5 minutes to present and another 5 minutes to rebut.

Obviously, Consent applications are more complex than straight minor variance applications. Applicants must show that the severance fits within the character of the neighbourhood and they also have to present their case for why the structures on the resulting parcels of land require minor variances.

We feel the way the COA currently handles Consent applications does a disservice to Toronto residents by inhibiting their ability to present evidence in opposition to the application.

The LBNA has been involved in over 20 appeals at TLAB – the majority of them consent applications. Unlike the 15 to 30 minutes the COA typically allows for hearing a consent application, some of the appeals have taken several days.

In introducing Bill 23, the Ford government sought to remove some of the roadblocks to construction of new homes. It appears they considered that one of those roadblocks was appeals by residents of COA decisions. They could argue that some of the appeals go on for days or months and seemingly point the finger at the residents as the root cause of lengthy appeals.

But let’s take a closer look at the length of these appeals.

The TLAB Process

At TLAB, the Applicant presents their case first, and the first witness is almost always a professional land use planner – an expert witness. In virtually every case we have participated in, the Expert Planner’s testimony takes up a full working day. They present their analysis of the neighbourhood and arguments about why their client’s proposal fits with The Planning Act, The Official Plan and the Bylaws. It can take up to a full day to cross-examine the evidence presented by these Planners, who often rely on their professional status and experience to present opnions about a proposal that are given weight by an adjudicator. Some of these Planners perform analyses that can only be described as superficial, and it takes time to show the holes in their arguments.

It’s not the residents that determine the content or duration of the presentation of evidence on behalf of an Applicant. It’s the lawyer representing the Applicant.

Sometimes, it feels like the applicants’ lawyers try to intimidate residents with the amount of material they present. The document filings and procedures can also be so intimidating, residents seem driven to find a lawyer to represent them. But not many residents can afford the cost of legal counsel, which can amount to between $20 and $50K depending on how long the hearing runs.

Deputation to the Planning and Housing Committee

In 2019, the LBNA presented some proposed amendments to the COA Process to make it more user-friendly. We saw the process as convenient for COA staff and panel members but onerous for residents. Here are some of the recommendations.

Separate Sessions

COA hearings typically are/were held between 10 am and 4 pm. While the COA posts an agenda noting the applications to be heard and the order in which they will be heard, residents have to commit to setting aside at least a 2-hour window. Because hearings on individual applications vary tremendously in duration, it is next to impossible to guarantee exactly at what time any application will be heard. On top of this, residents have to take time off work to attend COA hearings and this may also add commute times from their place of work. For residents who are hourly paid, attendance at a COA hearing could also mean sacrificing income.

The LBNA suggested holding applications for minor variance hearings during normal business hours, since these usually are the most straightforward cases, and represent the bulk of the COA hearings anyway.

Separate Streams

We also proposed severance applications be handled through a separate stream and process vs. minor vairance applications.

We suggested holding severance hearings during the evening to make it easier for residents to fully participate and express their concerns and also because, in any given month, the number of severance applications usually is relatively small compared to minor variance applications.

Perhaps the City should simply allow severance applications to bypass COA and go straight to TLAB. It’s obvious, by the time they take to argue, that severance applications are far more complex than minor vairance applications. And TLAB takes a more thorough, evidence-based approach to adjudication compared to the COA. Plus, in their written decisions, TLAB hearing chairs explain the reasoning behind their decisions, which the COA does not do, so there is more transparency than with the COA.

Perceived Bias

As noted above, the high approval rate for severance applications in Long Branch between 2014 and 2018 gave residents the impression the COA panel held bias in favour of developers. Here are some of the factors that we feel helped form this impression.

The COA panel during this time period seemed to consist of the same members time after time. While a normal COA panel consists of 5 members, often there were only 3, which Planning deems a quorum.

Frequently, during hearings, we would see the COA panel members huddle to confer. While this may be entirely innocent, it gives the impression of collusion.

The COA decisions are written with what is called “boilerplate” text outlining the reasons – that is, the SAME reasons appear on hundreds of decisions. Not only does this lack transparency, but it also is not in keeping with the spirit, let alone the intent of Section 45.8.1 of The Planning Act, which requires COA to not only describe the reasoning behind the decision, but also to describe the impact of oral and written submissions.

There is a legal principle known as “reasonable apprehension of bias”.

In the Canadian judicial system, a judge must not only be unbiased but also appear unbiased.

It is difficult to prove an adjudicator appears to hold a bias, let alone actually have one. The legal test involves proving that “a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias”. And the burden of proof would fall on the shoulders of the residents.

Note that, in the context of Reasonable Apprehension of Bias, the wording focuses on judges and does not appear to apply to other adjudicatory bodies such as the COA. Perhaps it should. And perhaps panel members should be required to formally swear an oath that they will be impartial in their duties.

Training

While the Long Branch Neighbourhood Character Guidelines were formally introduced in January, 2018, we did not have the impression the COA panel members actually understood how they were to be used. They seemed to accept the applicants’ representations that their proposals conformed with the guidelines in the face of more fact-based analysis by residents.

We also had the impression the COA panel members did not understand there are environmental chapters in the Official Plan – notably about protection of the urban forest – that need to be given weight.

Therefore, we proposed the COA panel members be given more thorough training on the Character Guidelines as well as on the environmental policies in the Official Plan.

Action by Planning

As far as we can tell, City Planning might be giving the COA panel members more training as we recommended, though the curriculum is not shared with us.

However, on issues like reasons for decisions, separation of applications into two streams (Minor Variance and Consent), Planning has done nothing.

What You Can Do

If you think the above arguments make sense, then please consider contacting our City Councillor, Amber Morley to let her know you’d like to see changes in the Planning process with respect to the COA.

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