Committee of Adjustment Appeals Procedure

Purpose statement

To provide criteria and process for Council to decide whether to appeal or participate in an appeal of a decision of the town’s Committee of Adjustment.

Scope

This procedure applies to Council and all staff in the consideration of appeals of decisions of the town’s Committee of Adjustment.

Procedure

Whenever a decision of the town’s Committee of Adjustment is appealed to the OMB, the Legal department will bring forward a confidential report seeking instructions from Council regarding town participation in the hearing. The report will outline generally the nature of the appeal and seek instructions as to whether the town should either (1) support or oppose the appeal to protect the town’s interests or (2) take no action and not be involved in the OMB hearing.

Where the Committee of Adjustment approves an application contrary to a Planning staff recommendation, the Legal department will assess the matter in accordance with the criteria listed below to determine whether an appeal should be recommended to Council.

The Legal department will not recommend an appeal or participation in an appeal in circumstances where the town’s interests in the matter are minimal.

Where a request for an appeal is made by the Director of Planning Services or a member of Council, or the Legal department otherwise 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 statutory appeal period, the Legal department may file a “placeholder” appeal on behalf of the town. When the staff report comes forward, Council can either ratify and instruct staff to continue with the appeal on behalf of the town, or direct the Legal department to withdraw the appeal.

Planning staff or a member of council requesting an appeal shall provide the Legal department with the reasons for the appeal in accordance with the criteria listed below, in order that such information may be included in the confidential report of the Legal department to Council.

Council will make the actual determination as to whether to direct the Legal Department to attend an OMB appeal that has been initiated by another party or to move forward with an appeal on the town’s own behalf.

Criteria

The criteria listed below are to be used to guide Council when the Legal department seeks instructions in respect of an appeal of a Committee of Adjustment decision. These criteria would be applicable whether the Committee of Adjustment approved or refused an application, and irrespective of whether an appeal has been launched by an applicant or an objector. The criteria would also be applicable in determining whether the town should proceed with its own appeal of a decision of the Committee of Adjustment.

Where a decision of the Committee of Adjustment is dealing with a variance or severance request that has no or minimal material impact on town-wide issues or interests, or where the appeal relates primarily to a dispute between neighbours without broader implications or ramifications to the town, the Legal department should generally be instructed not to attend the hearing.

The Legal department should generally be directed by Council to attend a hearing or appeal a decision of the Committee of Adjustment in one or more of the following circumstances:

  1. Where the issues raised on appeal could have significant broader impacts, or town-wide implications;
  2. Where the Committee of Adjustment’s decision is not in keeping with the purpose and intent of Council’s approved official plan and/or zoning by-law;
  3. Where a decision could set an undesirable precedent with respect to the interpretation of the official plan and/or zoning by-law, and/or call into question or undermine the interpretation of the official plan and/or zoning by-law;
  4. Where the Committee of Adjustment has failed to impose conditions requested by staff, which are considered essential if the variance or severance is granted by the OMB; and/or
  5. Where the Committee of Adjustment has made an error in law.

Accountability and Transparency

Legal advice on the issue of the position of the town in respect of a OMB hearing, or consideration of a placeholder or other appeal, is a matter subject to solicitor-client, as well as litigation, privilege. As such, the confidential reports of the Legal department in accordance with this procedure are appropriately considered in a meeting or part of a meeting of Council that is closed to the public in accordance with subsection 292(2) of the Municipal Act, 2001.

In the case of confidential reports of the Legal department in connection with Committee of Adjustment decisions, there would be no separate or additional public report, but in most cases both the Council agenda and any Council resolution to resolve into closed session would identify the specific Committee decision and property that is at issue and the subject of the confidential legal report. This would provide notice should any member of the public wish to delegate to Council.

Once Council provides instructions to the Legal department, although the report of the Legal department remains confidential, a public Council resolution shall be recorded in the minutes with the application and property identified.

Where the Council direction is to participate in or proceed with an appeal, the Legal department will advise the OMB that the town will be in attendance at a hearing based on the public resolution of Council.

Definitions

“OMB” means Ontario Municipal Board.

Responsibilities

The Town Solicitor or designate shall be responsible for ensuring compliance of this procedure and associated policy.

Procedure details

Procedure Number: G-GEN-007-004
Parent Policy: G-GEN-007
Section: Governance
Sub-Section: General
Author: Legal Department
Authority: Council
Effective Date: 2013 Dec 16
Review by Date: 2018
Last Modified: New

References

Municipal Act, 2001