PITFALLS FOR DEVELOPERS TO AVOID IN THE LITIGATION
PROCESS FOR APPROVALS
By IAN J. ROWE , Municipal
Law Department
Make sure you have asked for all of the relief that
you need:
Does your proposal require an Official Plan Amendment, Re-zoning,
Minor Variance, Site Plan, relief from the Tree-Cutting
By-law, relief from the Water Course By-law, etc.. If you
haven’t asked for all of the needed approvals , you
will have to start over with that a particular item. You
want all your applications to be running parallel rather
than in a series.
Strategy and Disclosure:
Where there is legitimate basis for settling at least some
of the issues, get your consultant’s reports to the
municipality as soon as possible so they can be reviewed
and issues narrowed or settled. Trial by ambush is over
and full disclosure is anticipated.
Avoid Adjournment as a result of lack of disclosure.
The County of Simcoe is currently taking the position that
even in litigious matters they are entitled to 90 days to
review consultant’s reports (the period of time within
which they are entitled to take to approve an Official Plan
Amendment).
Check your pride at the door.
No matter how mad you may be at the municipality or how
grasping you feel the municipality is behaving, OMB hearings
cause delay, are time consuming, are expensive and no matter
how strong your case is, there is no guarantee of success.
How much will it cost to give the municipality what they
are asking for (whether they are entitled to it or not)
compare that to how long it will take to get to a board
hearing, how much of your resources, financial, and your
own time will be expended and can you withstand a loss.
This isn’t a battle of wills or to prove you are right
and the municipality wrong.
Hire the best experts you can possibly afford.
OMB hearings are battles of experts and having better experts
than your opponent greatly increases chances of success
irrespective of the underlying merits of the respective
cases. Don’t cut costs with the quality of your consultants.
Don’t hire a generalist when specific expertise is
required. The generalist might be more than adequate for
initial consultation on the project or its development upon
approval, but may not be the best witness.
Don’t testify.
That’s why you hire experts. As a developer you are
too wound up in the project, its too close to you, its too
personal and you are far too likely to lose your temper
and be a terrible witness. I never call my client if it
is at all possible to avoid it.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
