The following text is from the following document prepared by David Godley:
A Fair Process for Severance and Variance Applications
Restoring the balance between competing interests
1)That the Planning Department plan education sessions with the Committee of Adjustment members, focussing on due process, equality of participants, role in implementing City policies, and citizen engagement which encourages co-operation among various interests.
2)That the Planning Department continue their reform of processes based on issues raised below.
The Legal Framework
The Planning Act has 6 major purposes, two of which are:
(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient.
(e) to encourage co-operation and co-ordination among various interests.
Long Branch Neighbourhood Association (LBNA)
This body was set up to promote the interests of citizens of Long Branch including conservation of character. It emanated from a community meeting on May 4 2015 held because of the frustration and anger of residents about the severance and variance processes and the results.
The Ontario Appeal Board
At that time the Ontario Municipal Board (OMB) was seen as the ogre. It still is. There is no equality in the appeal process. The system ensures that those with money and power win. Essentially the citizen is powerless and has to depend on the Planning Department and the co-operation of the Councillor. Without citizens hiring legal and planning experts for $20,000 to $30,000 and opening themselves to costs, development is always going to be approved. This is the legalistic nature of the OMB. Their decisions have little relationship to good planning. The system is discriminatory.
In fact the process, as well as the product, that is destabilising Long Branch. The hope on the horizon is the change to Local Area Boards of appeal which should be operating later this year in Toronto. There should be a cut off for applications to be reviewed by the OMB so that LAB can move straight into deliberation when set up, the earlier the better. Written submissions (including cross examinations) with qualified planners adjudicating would eliminate unfair practices transferring over from OMB processes.
Local democracy all but disappeared after City amalgamation. Citizen Advisory Panels were never implemented. We now rely on three politicians at the three levels of Government whereas in Long Branch Village days there were at least 15, most of them at the grassroots level. However the process of planning application offers a good opportunity for local democracy.
The first steps towards this have been taken by an enlightened Planning Department by recommending community meetings prior to a decision. Previously the local process (as well as the appeal process) was adversarial and divisive. The adversarial process is the worst way to resolve issues and effect good planning; genuine planners recognise this. The resentment and wrath of the community is also beginning to be directed at the Committee of Adjustment as well as some administrative processes.
Favouring Development Interests
A basic element of bias is when an applicant says they agree with deferral to blunt opposition and then decide to proceed at the hearing. The Committee of Adjustment feel duty bound to allow a hearing to continue at the wish of the applicant rather than considering residents viewpoints or their lack of information. This undermines due process. A similar ploy is to switch plans at the last minute so those with interest are unable to comprehend the implications.
Access to Information
Another element is the comprehension of impacts. The Committee of Adjustment need to ensure that the public fully understand the impacts of a development and the information is readily available. Information sent out now is not sufficient to allow anyone to make informed judgments. Those affected have the often arduous task of visiting the Civic Offices during the day to try to make sense of the proposal and its impacts.
Observing Written Submissions
The Committee of Adjustment to their credit give weight to large turnouts of objectors which generally are a measure of concern. For example 31 people turned out from 36th Street to protest a proposal at #30 and the application was refused. But because the street was fatigued with the process only 4 came out to object to the proposal at #50. This was approved against advice from the Planning Department, Urban Forestry, LBNA and the Councillor. It is essential in a democratic society that people be able to shape their neighbourhood and this is known as the fifth test for variances in legal circles.
Even now the information supplied is not enough to properly judge impacts. There is a need for clear plans of the size and shapes of nearby lots and densities, the street façade of the proposal in relation to the abutting properties (including permitted use outline) and a bird’s eye view. Otherwise it is almost impossible for any lay person to determine whether the Official Plan policies have been met. It is difficult for professionals. The digitisation of applications will help access to proposals but information provided is insufficient. Limited information was fine when minor really was minor.
The Committee of Adjustment does not seem to recognise the imbalance of citizen presenters versus development planners and lawyers. They often seem to ignore the general intent of the Official Plan and zoning bylaw and substitute their own view of development. Neither the Planning Department nor the Committee give enough respect to the City’s definition of “minor”
“Small changes or exceptions to existing land use or development restrictions contained in the zoning bylaw are called minor variances.”
Interpretation has been changed over the last 5 to 10 years to favour development despite clear indication otherwise from Divisional Courts. There is no reason for the local process to follow the OMB which has been compromised by development interests.
Citizens Lack of Influence
This redefining of the term “minor” also has implications for neighbour impacts. While the street scene has greater public implications, the impact on neighbours is a planning concern referenced by the Official Plan and zoning bylaw. This seems to be given little or no weight by the Committee of Adjustment. The Planning Department also seem reluctant to give much weight to this aspect. Essentially this means that neighbours whose rear yard is overshadowed, overlooked, overwhelmed or have their views blocked are eliminated from the planning process.
Trees and Vegetation
Another serious consideration is that of preserving the tree canopy. A City of Toronto advert on bus shelters along Lake Shore Blvd. urges citizens to keep trees for their many benefits. Ironically over intensive development is denuding parts of the neighbourhood of foliage with both legal and illegal destruction. Many developers give scant regard to retaining vegetation. 50 36th Street is a well treed lot but the Committee approved the doubling of density without Urban Forestry comment. Urban forestry is not permitted to protect trees where they are impacted by an approval. This may even affect neighbour’s trees. The Committee of Adjustment frequently ignore the request for deferral by Urban Forestry and are jeopardising the City’s strong efforts to create a better tree canopy.
In addition all applications should have a condition that development be substantially the same as the submitted drawings. The community can then rely on what they see being at least similar to what they get. All “twin houses” should have a condition that they should be contrasted in design, and materials.
Level Playing Field
The Committee of Adjustment sometimes seems to have a blind spot on due process. Applicants choose the date of the hearing which is sometimes difficult for citizens to attend. The process is too quick for the public to assemble their thoughts. The deadlines were set prior to “minor” being promoted as including “major”.
There appears to be little recognition that by giving applicants extra rights that they are removing rights of those impacted. By law it is up to the applicant to prove acceptability of the development. In the case of new soldier houses for example the whole of the neighbourhood is negatively affected. This fortunately has been recognised by the Planning Department who together with the Councillor initiated an Urban Design Guideline Study. Every effort should be made to create a level playing field between competing interests. Community meetings are a valuable in achieving this.
All severances and other complex applications especially where new houses are proposed should be subject of Community Meetings in a similar but less formal way to zoning revisions. Several “round the table” Community Meetings have been successful in resolving issues. The Community Meetings should be before the application is considered by Committee to prevent citizens having to attend Committee of Adjustment meetings twice.
The first time that applications are before the Committee, those concerned do not know whether the matter will be deferred or heard. So they have to be ready with their perhaps unnecessary presentations, sometimes waiting over four hours. The 7 or 8 hours the Committee of Adjustment members preside seems excessive where concentration is needed to review complex issues.
The Committee of Adjustment appear to go beyond the bounds of implementing City policy and in the case of Urban Design usually ignore Official Plan policies on this aspect. Urban Design issues (Official Policies below) seem neglected. Urban design takes precedence over density in Neighbourhood designations according to Official Plan Section 2. Decision makers appear to need help on “appearance” judgments by experts.
Change in the Committee of Adjustment Approach
The Committee of Adjustment has in the past been influenced by staff comments and citizen input. However recently some of their decisions seem to reflect more personal values rather than reflecting the legal and planning framework in which they are supposed to operate.
Letting Down the Electorate
Of particular importance to the residents is the notion of fairness. The overall way the process works at the moment is irrational. This is particularly so with the elimination of meaningful participation. The constant undermining of the Planning Act and Official Plan is a source of anxiety for residents.
Every time a severance is approved it encourages more applications. This leads to lack of trust in the system and of Government generally. Development, which has often been mistakenly approved by the OMB, is a permanent reminder of a system which crushes those with least power.
Staff of the City of Toronto is paid by the general public to take a balanced view of planning issues. By ignoring advice the Committee of Adjustment become a political force instead of a balanced adjudacative body.
Education of the Committee of Adjustment
It is essential to have the Committee of Adjustment grounded to their appointed function using comprehensive education sessions. It is also important for the Planning Department to continue their reforms to eliminate skewing of the planning process.
David Godley June 15 2016
Extract from Urban Design Policies of Toronto’s Official Plan
3. New development will be massed and its exterior façade will be designed to fit harmoniously into its existing and/or planned context, and
will limit its impact on neighbouring streets, parks, open spaces and properties by:
a) massing new buildings to frame adjacent streets and open
spaces in a way that respects the existing and/or planned street proportion;
b) incorporating exterior design elements, their form, scale, proportion, pattern and materials, and their sustainable design, to influence the character, scale and appearance of the development;
c) creating appropriate transitions in scale to neighbouring existing and/or
planned buildings for the purpose of achieving the objectives of this Plan;
d) providing for adequate light and privacy;
e) adequately limiting any resulting shadowing of, and uncomfortable wind
conditions on, neighbouring streets, properties and
open spaces, having regard for the varied nature of such areas