Report from Geoff Kettel regarding March 3, 2014 Local Appeal Body Consultation at North York Civic Centre

I’ve previously posted comments from Steve Nazar concerning a Local Appeal Body consultation that he attended on Feb. 18, 2014.

I’m pleased to share with you as well the following report from Geoff Kettel:

Local Appeal Body Public Consultation
North York Civic Centre
March 3 2014, 7pm

Billed as a consultation on the establishment of a “Made for Toronto” Local Appeal Body (LAB), the North York public meeting lapsed into an open rant on the problems with the City’s Committee of Adjustment (CofA). In the end staff admitted that they were unsure of the direction that their report back to Committee should take, given the skepticism expressed by many people about the CofA process and the lack of discussion on the implementation of the LAB, the matter that Council intended for discussion. In effect people expressed that there were more fundamental questions about why one was needed, given the problems with the committee of adjustment.

The consultation meeting held on Tuesday March 3rd in the Council Chamber at North York Civic Centre was well attended by members of the public, especially considering the rather narrow nature of the topic. The comments were all from members of the public, but it appears that no-one from the development community was present, or at least no-one owned up to that when I asked the question towards the end.

The staff presentation included some statistics about the number of OMB appeals in relation to the number of committee of adjustment applications – about 10 percent. However surprisingly there were no statistics presented on the number of appeals from variances approved by the CofA (more likely to be from members of the public) and appeals from rejection by the CofA (more likely to be from development industry). Staff said this information is not available.

The presentation confirmed that the body would be modeled on the Ontario Municipal Board – administrative law principles, full merits of the case, cross-examination under oath, etc. It must operate independently from Council – which presents some challenges to establish. It also cannot be abolished once established! The model proposed would have 5 members, one full-time and four part-time.

LAB decisions could not be appealed, except for “site-specific plans” which could still be appealed to OMB. There was discussion of how this was a loophole that developers could use routinely.

Paying for Local Appeal Body noted as a major issue

Total annual expenditure would amount to about $1.75M., so paying for the LAB was noted by staff as a major issue. The current OMB filing fee is only $125 so based on 300 appeals per year, complete cost recovery would require a $6000 appeal fee. This is unworkable as it would dramatically reduce the number of appeals by neighbourhood groups or neighbours, but have little effect on developers. So the question arises as to what extent should the LAB be funded by user fees versus property taxes? Currently the CofA fees cannot be used to cross-subsidize the LAB; the Planning Act would need to be amended to allow a surcharge on CofA fees.

Accountability was raised – once appointed the LAB members are accountable to no-one – only to themselves. This is similar to the judicial situation.

Yours truly noted that fundamentally the LAB (and CofA) deal with planning and the input to the CofA by planners is inadequate (only about 10 percent of applications receive review by staff planners) and similarly it is questioned why LAB would be assigned a staff lawyer, but not a planner.

Another speaker suggested a trial run of the LAB in a smaller geographic area before considering extending it to the whole city.

Comments from members of the public present alternated between comments on the LAB and the CofA:

LAB

• The LAB may be more Toronto-centric – but that’s all, it retains the same weaknesses of power imbalance, and dependent on the adjudicator assigned

• For $50K annual remuneration it will be difficult to get a competent adjudicator

• An alternative to the LAB would be to keep the OMB but provide intervenor funding for neighbourhood groups

• Mediation raised as an option – but is it a fair process?

• Reform so as to act like small claims court? i.e. exclude expert witnesses

CofA

• Does not properly apply the four tests, including maintaining the intent and purpose of the Official Plan (OP) and Zoning By-laws (ZB)

• The applicant should have to show that the proposal conforms to the intent and purpose of the OP and ZB (not force the neighbours to have to show that it does not conform!)

• The CofA is “broken” – it only acts as “enabler for development industry” – ZB need to be respected and upheld

• Procedurally lax and overloaded, i.e., if unopposed, then automatically approved; only pay attention if there are people there in opposition

• Allows changes to application “on the fly”

• No definition of “minor” variance

• Recommend

o Written decisions

o Members need training

o “On the fly” changes to the application should trigger deferral to another hearing

Staff indicated they were due to report back to Planning and Growth Management Committee on March 24 on the results of the public consultation, and on implementation. They agreed that more time would be useful both to them and to public commenters.

There was much discussion on the ineffectiveness of public notification for the LAB public consultation process. Staff pleaded that they had limited budget for advertising and few other tools.

Comments from the public should be addressed to: labconsultation@toronto.ca

– Geoff Kettel

[This concludes the text from Geoff Kettel]