Report to: Development
Services Committee Report
Date:
SUBJECT: Criteria
for Assessment of
Legal File No. 07 0411 LG 0051
PREPARED BY: Bob Boxma, Assistant Town Solicitor, ext.4745
RECOMMENDATION:
That the report entitled “Criteria for Assessment of Ontario Municipal Board Appeals – (Committee of Adjustment)” be received.
And that Council have regard to the criteria described in this report in determining when:
· Town staff should attend Ontario Municipal Board (OMB) Committee of Adjustment appeals; or
· decisions of the Committee of Adjustment should be appealed by the Town.
And that Staff be authorized and directed to do all things necessary to give effect to this resolution.
EXECUTIVE SUMMARY:
Not applicable
1.
Purpose 2. Background 3. Discussion 4. Financial
5. Others
(Environmental, Accessibility,
Engage 21st, Affected Units) 6.
Attachment(s)
PURPOSE:
The purpose of this report is to
provide Council with general criteria to assess whether the Town Solicitor and
Town Staff should attend an OMB hearing of an appeal brought against a decision
of the Committee of Adjustment (C of A) or whether a decision of the C of A
should be appealed to the OMB by the Town of Markham.
BACKGROUND:
Development Services Committee requested a report identifying criteria by which staff and Council can assess whether or not to attend an OMB hearing in support of a decision of the C of A. Similar criteria can also be applied in determining whether the Town should appeal a decision of the C of A to the OMB.
In 2005, the C of A heard 219
applications and 8 were appealed to the OMB.
In 2006, the C of A heard 191 applications and 6 were appealed to the
OMB. So far in 2007, the C of A has
heard 62 applications and 3 have been appealed to the OMB.
OPTIONS/ DISCUSSION:
Each time a decision of the Committee of Adjustment is
appealed to the OMB, staff bring forward a report seeking instructions from
Council regarding staff attendance at the hearing. It has been the past practice
of staff to routinely recommend attendance in order to support the decision of
the Town’s Committee of Adjustment. However, there are circumstances when the
Town’s interests in the matter before the OMB are minimal, as no public
interest or issue is involved, and in those circumstances, attendance is not
necessary. Consequently, it has been suggested that criteria to guide Council
in its decision on whether to direct staff to attend a hearing should be
developed. These criteria will assist staff in developing recommendations to
Council and Council in determining whether to instruct the Town Solicitor and
staff to attend the hearing. These criteria
will also assist in determining whether the Town should appeal a decision of
the Committee of Adjustment.
Criteria to Attend or Appeal a
C of A Decision
This report recommends that the following criteria should be used to guide decision making when staff seeks instructions in respect of a hearing. These criteria are applicable whether the Committee of Adjustment approved or refused the application. They are also applicable in determining whether the Town should appeal a decision of the Committee of Adjustment. The criteria address the question of the consequences that could flow from an unfavorable decision by the OMB on the appeal or the consequences that could flow if a decision of the Committee of Adjustment is not challenged by the Town.
Council should generally direct staff to attend a hearing or appeal a decision of the Committee of Adjustment:
1. Where the issues raised on appeal could have area-wide or Town-wide implications, the Town should be represented.
·
For instance, if severances and minor variances
were approved for under-sized lots, this could set a precedent for further
division of large lots in the area resulting in a cumulative, adverse impact on
the character of the community. The appeal of the
·
Another example would be the granting of a
significant increase in lot coverage and/or height which, if approved by the
OMB, could result in a flood of applications being made seeking the same
approvals. The appeal of the decision regarding
· When the Town has passed a comprehensive by-law dealing with a particular standard, as has recently been done on extended driveways, the Town should be at the OMB to see that the new standard is upheld.
2. Where a decision could have significant impacts and broader implications, and/or set an undesirable precedent with respect to the interpretation of the Official Plan or Zoning By-law in the context of other development applications/matters being considered by the Town, the Town should attend the hearing, or appeal the decision of the Committee of Adjustment, to ensure its position and the implications of an adverse decision are clearly before the Board.
· As an example, if the appeal could result in the granting of a severance in the Rural Area of Markham contrary to the Official Plan policies on rural severances, the Town should attend the appeal. If such a severance was granted by the Committee of Adjustment, the Town should appeal.
· A further example is if the appeal could result in a significant variance from either the minimum or the maximum number of parking spaces required, the Town should attend the OMB hearing or, if granted by the Committee of Adjustment be appealed by the Town to the OMB.
· In addition, if, an application for severance was refused because staff had recommended that development should occur by plan of subdivision, the Town should be represented in order to ensure that development occurs in an orderly fashion.
3. The Town should consider appealing a decision of the Committee of Adjustment if the Committee of Adjustment has failed to impose conditions requested by staff which are considered essential if the minor variance or severance is granted by the OMB.
Placeholder Appeals
Where staff believes that an appeal is warranted but a report recommending the appeal cannot be prepared and/or considered by Council prior to the expiry of the appeal period, the Town Solicitor should be authorized to file a “placeholder appeal” on behalf of he Town. When the report comes forward, Council will then either ratify and continue the appeal, or direct the Town Solicitor to withdraw the appeal.
When the decision of the Committee of Adjustment is clearly dealing with a variance request that has no material impact on Town-wide issues or interests, or where the appeal relates to a dispute between neighbours, the Town should not attend the appeal.
FINANCIAL CONSIDERATIONS AND TEMPLATE: (external link)
N/A
ENVIRONMENTAL CONSIDERATIONS:
N/A
ACCESSIBILITY CONSIDERATIONS:
N/A
ENGAGE 21ST CONSIDERATIONS:
N/A
BUSINESS UNITS CONSULTED AND AFFECTED:
The Development Services Commission has been consulted in the preparation of this report.
RECOMMENDED
BY: ________________________ ________________________
Catherine M. Conrad John Livey
Town Solicitor
ATTACHMENTS:
None