ONTARIO ASSOCIATION OF COMMITTEES OF ADJUSTMENT Presented by Tony Fleming June, 2015

Overview Consents Minor variances Procedures Decision requirements Conflicts of interest

Consents S. 50(3) no person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land… that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of 21 years or more unless… (f) a consent is given Creating new lots Creating easements (rights of way)

Consents S. 53 an owner of land may apply for a consent and the Council may give the consent if satisfied that a plan of subdivision of the land is not necessary for the proper and orderly development of the municipality Council shall have regard to the matters under 51 (24) Council has the same powers as in 51 (25) Council may impose conditions in accordance with 51 (26, 27) and 51.1

Consents Council may delegate to the Committee of Adjustment the owner must submit an application that includes all information necessary to allow the committee to make a decision A public hearing must be held 51 (24) – criteria for subdividing land 51 (25) – conditions that may be imposed (Parkland, Highway widening,) development agreements Servicing/access/site development

Consents Official Plan policies Number of lots to be created Access Environmental issues Will the newly created lots (including retained) conform to zoning Minimum size Frontage Servicing Building envelope

Minor Variances S. 45 the committee of adjustment may authorize such minor variance from the provisions of the zoning by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained

Minor Variances S. 45 establishes the four tests 1.Is the variance minor? 2.Will the variance generally conform to the intent and purpose of the Official Plan? 3.Will the variance generally conform to the intent and purpose of the Zoning By-law? 4. Is the variance desirable for the appropriate development or use of the land, building or structure?

Minor Variances Is the variance minor? - Not a mathematical exercise - But, some variances will be so excessive that they will not be minor - The primary consideration is impact - should anyone care that the variance is granted

Minor Variances Will the variance generally conform to the intent and purpose of the Official Plan? - What Official Plan policies are applicable to the application - if the variance is granted will the Official Plan still be conformed with - compatibility - water setbacks

Minor Variances Will the variance generally conform to the intent and purpose of the Zoning By-law? - Very similar analysis to the Official Plan analysis - What are the performance standards in the zoning by- law attempting to achieve? - If the variance is granted, will the purpose of the zoning by-law be frustrated?

Minor Variances Is the variance desirable for the appropriate development or use of the land, building or structure? - Not a consideration of whether the owner “needs” the variance - no requirement for hardship - The issue is whether it is in the public interest to grant the variance

Procedures Time: For the Committee of Adjustment, a hearing must be held within 30 days of receiving the application. Every party affected by the decision has the right to be heard. The Committee shall hear every party who desires to be heard either in favour of or against the application. Form: The hearing can take various forms, from court-like oral hearings to written submissions alone. The hearing must be fair, impartial, and have due regard to any applicable statute or right. Hearings before the Committee shall be held in public. Quorum: since the Committee has more than 3 members, the quorum is 3 members. Only the members of the quorum who heard all of the evidence regarding an application can render a decision on that application. (explained in greater detail in “the decision”)

Procedures Why is natural justice important? –Failure to follow may invalidate the decision –Failure can lead to litigation – challenge to the decision

Procedures The two core principles of natural justice are as follows: The Right to be Heard: This principle enshrines the duty on a decision-making body to allow parties affected by a decision to reasonably present their case. The Rule Against Bias: This principle exemplifies the duty on the decision-making body to act fairly, listen to arguments, and reach a decision free from bias.

Procedures Notice of hearing A party must receive prior notice of the facts on which the decision will be based such that they may properly present their side. Failure to give proper notice is a denial of natural justice. The Committee of Adjustment must give notice to the interested party sufficiently in advance of the hearing. Notice must contain the following information for an oral hearing: –the time, place, and purpose of the hearing; and –a statement that if the party notified does not attend the hearing then the Committee may proceed in their absence and the party will not be entitled to any further notice in the proceeding. Notice may also include the relevant facts, who will be present at the hearing, and consequences of the decision.

Procedures Preparation for the Hearing A party must be given sufficient information to prepare his/her case. They should have access to all of the information upon which the administrative body will make its decision. Information should be disclosed with sufficient time for the party to prepare. Note: the decision-making body need not disclose confidential information or facts in the public domain. Evidence A party is entitled to present any evidence relating to the matters set out in the notice of the hearing. Nothing that would be inadmissible in a court of law by reason of privilege (solicitor/client privilege, for example) is admissible during a hearing before the Committee.

Procedures Witnesses A party has the right to call witnesses and question people giving evidence. The procedural by-law may contain more detailed procedures that govern evidence and witnesses. Adjournment A party may request an adjournment to respond to new facts adequately. The decision-making body generally has the authority to either grant or deny the request, but note that a refusal to grant an adjournment may be an infringement of natural justice if it prejudices the party requesting the adjournment. The Committee has the authority to adjourn a matter on its own motion and reserve its decision until a later date. Representation by Counsel A party appearing before the Committee of Adjustment may be represented by counsel as part of the “right to be heard”.

Procedures Decision-making bodies are expected to render their decisions untainted by bias. There must be a reasonable apprehension that a decision-making body or officer of the body did not or will not act impartially for a decision to be set aside for bias—mere suspicion will not suffice. Personal, Family, or Professional Relationship: A member should not hear or ought to step down from hearing any application dealing with a family member, even if it would not offend the Municipal Conflict of Interest Act. Attitudinal Bias: A member of the Committee may raise a reasonable apprehension of bias by the way in which he/she acts towards a party. This can occur prior to or during a hearing, or at the time a decision is made. No member hearing an application before the Committee may pre-judge the matter or express an opinion in public before the decision is rendered. Communications: Private communication among members of the Committee will likely give rise to a reasonable apprehension of bias. This is equally applicable to communication between members and parties. All communication between such individuals should be restricted to the formal proceedings before the Committee until after a decision is made.

Procedures Site visits -An important part of understanding the decision to be made -It is acceptable to have the applicant accompany Committee members to the site, and to provide transportation (island visits) -This is not an opportunity to “convince” members to support an application -Site visits are informational only -Members should avoid engaging in discussion or debate on the merits of the application with the owners -Members should be clear that they cannot make decisions based on information that they are provided that the other members are not, and that doing so could jeopardize the decision to be made

Decisions The Decision Decision by persons who have heard all of the evidence: In order to validly participate in the decision-making process, Committee members must have heard all of the evidence and considered all of the arguments on both sides. A majority of the members of the Committee who heard all of the evidence may render a decision. Any member of the quorum who did not hear all of the evidence cannot participate in the decision. Decision based substantially on the evidence heard at the hearing: The decision must solely rely on the evidence presented at the hearing. Reasons for the decision: The Committee of Adjustment must set out its reasons for the decision in writing and the decision shall be signed by the members who concur with the decision. Reasons must sufficiently allow the party to determine how the body came to its conclusion. (consider all 4 tests)

Conflicts of Interest Members of Committees of Adjustment are subject to the Municipal Conflict of Interest Act A conflict of interest is: Any pecuniary interest, direct or indirect, in any matter under consideration by the Committee of Adjustment –Any financial or monetary interest –The pecuniary interest can be positive or negative A pecuniary interest of the following persons is an indirect interest –Member’s parent, spouse, same sex partner or natural, adopted or step- child –Member’s employer or business partner –A private corporation in which the Member is a shareholder, director or senior officer –A public corporation in which the Member has a controlling interest

Conflicts of Interest Members of Committees of Adjustment are obligated to: Disclose the nature of your interest prior to any consideration of the matter at the meeting Not take part in the discussion or vote on the matter Not attempt in any way before, during or after the meeting to influence the voting If absent from the meeting, declare the conflict at the next meeting

Conflicts of Interest Exceptions to conflicts of interest: Having a pecuniary interest in common with electors generally (e.g; property owner, utility customer) Receiving an allowance, honorarium, remuneration, salary or benefit as a member of the Committee or as a member of the volunteer fire department Having a pecuniary interest that is so remote or insignificant that it cannot reasonably be regarded as likely to influence the Member

Profile Tony Fleming is a Partner in the Land Use Planning, Development and Environmental Group and the Municipal Group at Cunningham Swan. Tony is recognized by the Law Society of Upper Canada as a Certified Specialist in Municipal Law (Local Government/ Land Use Planning and Development). As a Certified Specialist, Tony has demonstrated expertise in the fields of municipal law and land use planning and development law. Tony provides advice to municipalities and private sector companies on all aspects of land use planning and development as well as environmental law. Our municipal clients consult Tony on all aspects of municipal governance and complex land use planning matters. Tony appears frequently before the Ontario Municipal Board to defend decisions of municipal Councils and Committees of Adjustment. Tony also appears regularly before the Assessment Review Board and the Environmental Review Tribunal. In addition, Tony appears in all levels of Ontario Courts on administrative law matters, including defending challenges to municipal by-laws. Prior to joining Cunningham Swan, Tony was Senior Legal Counsel with the City of Kingston. Tony focused on providing advice on land use planning and development and environmental law with the City of Kingston, building on his experience in private law firms in Toronto where Tony practised as a land use planning and environmental lawyer. To contact Tony, please or call