PITFALLS FOR DEVELOPERS TO AVOID IN THE LITIGATION
PROCESS FOR APPROVALS
By IAN J. ROWE , Municipal
Law Department
Prior to completing the Committee of Adjustment application,
obtain from the municipality a current copy of the entire
Official Plan and Zoning By-law.
1. Planning Act, - Severances - Section 51(24)
- the jurisdiction of the Committee of Adjustment is based
on conformity with Section 51(24) criteria
- review the listed conditions and make sure that they
are either not applicable or the application conforms.
2. Planning Act, - Minor Variances - Section 45(1)
- the power of the Committee to grant a minor variance
is set out in Section 45(1) and consists of four tests:
(a) the variance is minor;
(b) the application is desirable for the appropriate development
of the land;
(c) the application maintains the general intent and purpose
of the zoning by-law;
(d) the application maintains the general intent and purpose
of the Official Plan.
- the term "minor" is qualitative not quantitative:
the degree of variance from the by-law is not determinative
- all four tests must be met: failure in one test results
in refusal of the application.
3. Provincial Policy Statements
- the Committee must have regard for Provincial Policy
statements but is not bound by them. Therefore you should
review them to make sure that they either don’t apply
or that you can conform or that there is some explanation
as to why non-conformity can be ignored.
4. Official Plan
- as the Official Plan is the foundation for all planning
documents within the municipality, it should be reviewed
prior to completion of the application.
- ideally the entire Official Plan should be read as policies
affecting consent and minor variance applications can be
found in various parts of the Plan.
- specifically you must review the Official Plan policies
for the land designation of the subject lands and the consent
provisions which apply generally. You will often find consent
policies in both areas.
- also review the designations of lands surrounding the
subject land as they may contain polices which restrict
development which may impact negatively on uses within that
designation.
- if the severance is farm related, check for specific
policies with respect to retiring farmer lots, excess dwellings
or essential farm help (son or daughter).
- check whether there are specific numerical limitations
on the number of severances from a parcel within the plan.
If there are such limitations, make sure that the proposed
application isn’t over the limit.
5. Zoning By-law
- determine the zoning of the subject land
- review to ensure that both the retained parcel and the
parcel to be conveyed will conform to the permitted uses
and performance standards of the by-law
- if they do not, can the parcel be redesigned to conform
or is it necessary to bring a minor variance application
together with the consent?
- check the definition section for performance standards
and uses to make sure you fall within the definitions set
out in the by-law.
6. Comments from Commenting Agencies
- the Committee of Adjustment application will be circulated
to a series of commenting agencies and /or will receive
comments from some or all of the following (for example
in Simcoe County):
- Simcoe County District Health Unit
- Simcoe County Planning Department
- Nottawsaga Valley Conservation Authority or Lake Simcoe
Conservation Authority
- Public Works Superintendent
- Ontario Ministry of Agriculture and Food and Rural Affairs
- Council report and staff report
- Neighbours opposed or in favour of the application
- it is sometimes difficult to obtain the comments from
commenting agencies because they often arrive at the day
of the hearing. However, there is the opportunity to influence
adverse comments through further information and it may
be necessary to adjourn the hearing to allow you to do that.
- discuss the matter with the municipal planner prior to
their comments being made because, again, you may be able
to influence that opinion which is the most significant
one before the Committee; For municipalities where the Council
sends a report, it is based on a staff report from the planner
and once that is before Council their position is pretty
much written in stone. If you get to them before their opinion
is formed, you can have some influence on it..
- if you have a neighbour opposing the application, contact
them to see whether this is a question of a personality
conflict or whether there are legitimate concerns in the
neighbourhood; that you may be able to better explain the
proposal and make peace with the neighbours who would otherwise
oppose the application.
- if the matter is in a rural area and involving farm land
or near farm land, you must be concerned as to whether the
proposal will offend the minimum distance separation formula
in the Agricultural Code of Practice with respect to livestock
uses.
7. Conditions
- discuss conditions with the municipal planner (ideally
prior to the staff report being written)
- there are a number of generic conditions such as preparation
of a reference plan, payment of taxes, parkland dedication
fees, etc. which are unobjectionable.
- enquire about further specific conditions at the first
possible opportunity
- if any specific conditions are unacceptable, you can
attempt to convince the staff that they are unnecessary
- an unacceptable condition can be appealed to the Ontario
Municipal Board without jeopardizing the underlying grant
of the consent.
Conclusion
I hope this checklist will be of some assistance to you
in preparation for a Committee of Adjustment Hearing. If
an unanticipated issue should arise at the hearing, despite
your review of the matters set out in this checklist, consider
whether an adjournment should be requested in order to deal
with the matter. If an adjournment would be of no assistance
then you must simply react at the time and argue against
the impact of that issue.
If you have any questions concerning this checklist, please
do not hesitate to contact the writer.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
