OMB appeal process coming to an end for some neighbourhood planning
A long-debated Local Appeals Body will take over minor planning disputes in Toronto from the often-criticized Ontario Municipal Board.

thestar.com
By JENNIFER PAGLIARO
April 24, 2017

Fernanda Johannes is sitting alone on one side of the hearing room, surrounded by piles of paperwork she was up until the early hours of the morning preparing.

Across the aisle in the court-like setting of a Bay St. tower is the lawyer, planner and architect hired by her next door neighbours to argue for their dream of building a 2,517-square-foot home on the North York lot next to hers.

Both the city planner who reviewed the file and the city’s North York committee of adjustment that hears what are called “minor variances” had already refused the application for a bigger home from Naftali and Liora Esther Sturm. So, the couple appealed to the Ontario Municipal Board - the provincially-appointed, quasi-judicial body that deals with all land-use planning disputes, even minor ones.

But on Thursday, no one from the city showed up to the appeal hearing to stand behind the planner and committee’s position, because city council never made the formal request that they attend.

Johannes is the only one to stand at the lectern in opposition.

“There’s a void,” she told the room.

She had received notice of the appeal - naming the city versus the Sturms - and assumed the city would send someone to restate why the proposed house did not fit in the neighbourhood. When she learned they weren’t coming, she struggled to find out why.

“If I’m not here, who will show up?”

The appeal for the house proposed on Banton Rd. is not a unique phenomenon.

The committee of adjustment for North York - the arms-length city body that hears applications for everything from monster homes to backyard patio disputes - heard 1,059 such requests last year. Each of the city’s four districts has a committee of adjustment and North York’s is one of the busiest. The district saw the most appeals on average between 2009 to 2014, according to city data.

When those committee decisions are appealed, they go to the OMB, which has been criticized for being unelected and unaccountable to the communities whose neighbourhoods it is effectively planning.

But starting May 3, residents will no longer have to stand before the board. After more than a decade of debate, a newly-appointed Local Appeals Body - the first of its kind in Ontario - will consider all appeals of committee of adjustment decisions, in a move councillors and communities hope will be less adversarial and more transparent.

Johannes and her neighbours are among the last to appear before the OMB on this kind of appeal, which she and other residents have found to be an inaccessible, complex and incredibly frustrating process. For them, the Local Appeals Body process is just out of reach.

“Someone dropped the ball,” Johannes told the board on Thursday.

“I am woefully unprepared. This is unmatched.”

The Sturms applied for a minor variance in September 2016 after purchasing the 1970s-era property in June 2016 for $1.1 million.

They requested permission to build a much bigger home, above the parameters set out by the city for that neighbourhood. Their plans, as originally submitted, would include six bedrooms and six full bathrooms not including a nanny ensuite, a crafts room, large walk-in toy storage closet, triple French doors and a two-car garage.

The North York committee of adjustment refused the application in October.

That refusal was bolstered by a recommendation from city planning staff to refuse the application, with a report stating “staff are of the opinion that the variances, as currently proposed, are contrary to the intent of the official plan and zoning by-laws, and are neither individually nor cumulatively minor in nature.”

It’s now up to the OMB to decide what’s appropriate.

On Thursday, the Sturms submitted revised plans that included reducing the size of the house from more than 40 per cent of the 6,517 square-foot lot to 38.6 per cent.

At the hearing, Johannes successfully argued to have the hearing adjourned until May to allow her to summon the city’s planner to give evidence.

As Johannes discovered, staff can only attend a hearing when requested by council to do so - a result that must be initiated by the local councillor.

But each councillor has a different approach, including some the Star spoke to who have a policy of never asking the city attend for committee of adjustment appeals.

Councillor James Pasternak (Ward 10 York Centre) is one of them. He told the Star that sending staff to the OMB is “setting up a very expensive, confrontational approach” and that he has tried to encourage settlements where possible.

“It’s up to the residents to fight it,” Pasternak said.

Because the city does not track the outcomes at the board, it is impossible to know what the impact of not sending representation to defend the city’s position might have on the board’s decisions.

The Star reviewed all committee of adjustment decisions for 2016 and found less than 15 per cent of requested variances were refused. Often, applications are approved with conditions.

Advocates for a local appeals mechanism hope the new process will create a less confrontational way to resolve disputes.

After repeated concerns that Toronto should be removed from the purview of the OMB, in 2006 the city was given the authority by the province to create a local appeals body under the City of Toronto Act, a decision council finally moved forward with in 2014.

The seven-member panel was nominated by a citizens group and approved by council.

Some on council say the body is a stepping stone to removing responsibility for all Toronto planning matters from under the OMB, while others say it remains to be seen whether the Local Appeals Body experiment will work.

The process will include a year-long pilot project for mediation in North York, facilitated by an outside planner and an accredited mediator.

Pasternak said he supports the direction towards mediation, saying Toronto should be the “master of its own house.”

Fellow North York Councillor John Filion (Ward 23 Willowdale), who has tried to hold the line on homes not exceeding 32 per cent lot coverage in his area, said the problem of not sending staff to defend refusals needs to be fixed. He is hopeful the Local Appeals Body will be more accountable to the public it serves.

“People were picked for their skills and impartiality, so I’m expecting much better decisions than we’ve been getting from the Ontario Municipal Board.”