TAC Questions

The following TAC questions have been answered by the TAC Committee.

The responses below are based on the information provided by the members of the OACA "TAC" Committee and are not to be constituted as a legal opinion.

Questions have been bolded.


A building permit was issued for a garage at a setback of 1.5 m from the rear (road) lot line on a waterfront property. The 1.5 m setback was an error in the zoning bylaw which has been corrected by a housekeeping amendment passed since the date of issue of the permit. The by-law now requires a 7.5 m setback. The appeal period has passed and the amendment is in effect. The person who has the issued permit is now coming in wanting to move the location of the garage so that it will be approximately 4 m from the rear lot line. What is the applicable law? The Zoning By-law as it stood on the date of issue of the original permit or the amended Zoning By-law that is in place now, as of the date of his request to change the permit? Does he need a variance?

Answer:

A minor variance would be required to conform.  Since he has a permit to build at 1.5 and could, rather than have him build at the 1.5, it might be in the municipality's best interest to have him do a minor variance and waive the fee.

 

Can an OPA be a condition of consent?  We have always required an OPA to be completed first but have done ZBAs regularly as a condition.

Answer:

It could be a condition, however, the  issue is whether the OPA condition can be satisfied within the one year time frame for fulfilling conditions.  Usually, the consent is premature until the OPA is completed.

 

An application was received to de-merge a property and it has come to the committee's attention that a non-conforming use exists on one of the properties in question.   Do we have an obligation to investigate the non-conforming use to determine if it is a legal non-conforming use before we entertain the rest of the application?  If we do not address this issue, are we in fact saying through our inaction that it is deemed a legal non-conforming use?

Answer:

The onus is on the applicant to prove legal non-conforming status.  Any issues pertaining to the legal non-conforming status are beyond the Committee's jurisdiction.  i.e. septic system, etc.  However, through application circulation, such issues could be a concern to a circulated agency that could have no objection if approval was subject to certain conditions being imposed.

In accordance with Section 45(2)(a)(i) of the Planning Act, legal non-conforming status is not lost through obtaining additional lands but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed.

In the case of a property with legal non-conforming status being reduced in size losing its' legal non-conforming status, it is the opinion of TAC that this could be determined by your municipalities by-law or obtaining a legal opinion.

 

How do municipalities handle requests for deferrals of decisions?  Our Committee has had a number of requests by lower tier municipalities at the last couple of meetings and we are looking for input on what other committees do.

Answer:

If public notice has not been given, the application can be held at the request of the owner/agent/applicant (in writing) until such time as the application is ready to proceed.

If public notice has been given, the application must proceed to the hearing.  The applicant can request Committee to defer the application to a future date.  Some Committees have deferral fees.

 If a request for a deferral comes from a commenting agency or department, the Committee must still ask the owner/applicant/agent if they wish to defer based on the comments. The applicant may want a decision from the Committee.

 

Is there anything in the Planning Act that states that Council is not to interfere, comment or have influence over the Committee of Adjustment regarding their decisions?

Answer:

Although the Planning Act does not speak to Council's involvement other than to be appointed to a Committee of Adjustment, it is the opinion of the OACA Technical Advisory Committee that once Council has delegated authority to a Committee of Adjustment, as per Section 54 of the Planning Act, Council is no longer involved in the decision making but do have the right to appeal a decision of the Committee of Adjustment.

The purpose of Council delegating authority is so they do not have to be involved in the process.  Many committees are composed of members who are not members of council and members of council but Council's involvement is still only in appointing the members and having the right to appeal a decision.

Additional Question:

Our Regional Councillor is looking for the rationale behind the response, can you please advise.

The Municipal Act, 2001 requires that all municipalities adopt and maintain a policy with respect to the delegation of Council's legislative and administrative authority. Under Section 23.1 of the Act a municipality can delegate powers and duties under the Municipal Act or any other Act. Once Council passes a by-law, it is a legislative action and is equivalent to a statute passed by the Provincial or Federal government.

Why do Council's delegate authority?

'The efficient management of the Town and the need to respond to issues in a timely fashion require Council to entrust certain powers and duties to committees and staff while concurrently maintaining accountability, which can be effectively accomplished through the delegation of legislative and administrative functions.' (taken from the Town of Richmond Hill's Delegation of Powers and Duties Policy)

In the case of the Committee of Adjustment, they are a delegated authority (by Council) that operate as a quasi judicial body, exercising delegated authority under the Planning Act. They operate in a specialized, technical area of law and are required to resolve issues relating to minor variance and consent (depending on the extent of delegation).

Council is authorized under Section 284.1 of the Municipal Act to provide that a decision made under the delegated authority can be reviewed or appealed. The Planning Act governs appeals made against the decision of the Committee of Adjustment (Section 45(12) for Minor Variances and Section 53(19) for Consents).

The rationale for delegation is made by Council to ensure efficiently operated and accountable local governments. This is supported by Bill 130 amendments made to the Municipal Act (regarding expanded governance powers) by the Province.

The official plan and zoning by-laws, both taken into consideration by Committee when making a decision, are approved by Council and planning staff comment on all applications.  Council has the right to appeal decisions.

 

Question regarding extension of the one year lapsing date for provisional consent approval.


Answer:


Section 53(23) permits a Committee to change conditions of a provisional consent before a consent (the certificate) is given; Notice of the change of conditions is to be given pursuant to 53(24), unless - in the opinion of the approval authority - the change is minor whereupon no notice of a changed condition is required;

Appeals to the changed conditions are permitted if notice was given, as stipulated in 53(27);  (The decision by the Committee that the change was minor enough to not require recirculation has the effect of denying any opportunity to appeal the changed condition.)


Section 53(41) is the section that determines the one-year period after notice was given under (17) or (24), whichever is later (unless in the event of an appeal). Section (17) references the original Notice of Decision; Section (24) pertains to Notice of a Change in Condition(s).


So it stands to reason then that if it was determined by the Committee that the change to conditions was minor, no notice of the change is required - and thus no extension to the one year timeframe would be permitted.


Your question as to what is considered to be a "minor" change to a condition, as per Section 53(26) - is discretionary in the opinion of the committee, which then determines if Notice of the Change in Conditions is to be provided.  Only, when Notice is given under 53(24) would the lapsing date be extended to one year from the date of that later notice.


In reference to your third question - if a change in conditions is given and determined to require recirculation of the Notice of Decision and the Change in Conditions, Section 53(41) references the new Notice, so the one year is extended subsequent to that provision.  Not so much "automatically inferred" as to a new lapsing date, but rather stated in the provision of the Act.

 

The Committee approved a Minor Variance today and I have a question regarding the last day of appeal.  Section 45 (12) of the Planning Act states that an appeal may be filed "within 20 days of the making of the decision".  For a decision made today that would make the last day to appeal a Sunday.  Is this acceptable to have the last day of appeal on a Sunday?  Should I be backdating to Friday, leave the date as Sunday, or should I extend the appeal date to Tuesday, (since Mon. is a holiday)?

 

Answer:

Your question has been the topic of discussion a number of times, and an article appeared in the OACA Newsletter December 2008 to try and bring clarity to the matter.

To summarize the article, Ontario Municipal Board staff advises that the appeal period is counted from the date following the event or decision (this is the date of mailing for consents and the date of the decision for minor variances) and no matter what day this falls on, it is the "20 day appeal period date".  When the 20 day appeal period date falls on a weekend or a holiday, it is an acceptable practice to accept the appeal on the following business day.  BE AWARE, however, that you do not change the "20 day appeal period date" to the following business day - you just accept an appeal on that date.  The Board then has the authority to allow the appeal but we do not have the authority to change the statute requirement by changing the appeal period expiry date.

 

The solicitor has requested that since it is a 100 ac property that was severed, they would like to be exempted from a survey. Is there anywhere in the Planning Act that states that they can request an exemption?  The lawyer has told me that the Land Registrar has told him that no exemption is required.


Answer:

Some municipalities have accepted Exemption.  Exemptions are good only for one transaction.  Any subsequent transactions will require a survey.  The Registrar only issues them when the description of the property is straightforward – e.g. N1/2 of Lot 12, Conc. 2.  A metes and bounds description does not qualify and requires a survey.  Now in saying this, there have been instances where neither a survey nor an Exemption Certificate has been received as the lot was a whole lot on a plan and the Registrar stated that an Exemption was not needed, and the lawyer noted the survey was not required either.  In these instances, confirmation was requested from the lawyer that neither was needed and confirmation of the lot boundaries.  This has only come about since Land Titles has come into effect.  Under the Registry system, one or the other was received.  It is recommended policy to receive either one or the other.  We are unaware of anything in the Planning Act that requires either.  As Secretary-Treasurers, we need to be assured of the boundaries and the property for which consent is given.

 

Fellow has a detached accessory building 0.6” from lot line – been there for years.  Made APPLICATION to demolish and rebuild on the same spot.  During the time for building permit review he went ahead and demolished without permit and started to re-build without permit.  He therefore could not take advantage of the section of the by-law that permitted him to replace the building on the same spot as there was no longer a building there when he re-started  -  permits were not in place.  Minor variance required to reduce side setback.  Come to find out that due to various circumstances the building is not it the EXACT same location, it is a bit further away from the lot line and the variance request is for a 6” setback.  During the course of the public hearing he produced an as-built plot plan survey revealing that the building is not at the 6” mark, it is about 1.5” from the line (better than it was but not as good as he initially said).  Variance was denied.

The application for variance also dealt with 3 other aspects of the lot – there was shore road closure and purchase so the existing lot of record status has been lost and these dimensions were recognized and approved.

The decision of the Committee was appealed. The appeal does not specify that he is appealing the denial, or the approvals, just appealing. Naturally in my submission to the OMB I checked the box that said we would be open to mediation – always have to look good on paper.

The applicant/appellant has also indicated he is open to mediation.  The OMB has suggested we meet prior to mediation.

I’m not sure what we can mediate.  I don’t see any middle ground.  How do you suggest we move forward with this?  The only ‘mediation’ I can possibly see is a new minor variance application but that’s not where he wants to go I’m sure and I can’t see where it would get us any further ahead either.

The neighbours are not happy with the building being put ‘back’, they were quite vocal on the Committee not granting leave and fixing this guy’s mistake of building without a permit, and they have the argument of the variance not being “minor” (6 inches vs 9.8 ft).

If you have any thoughts on this I’d be most interested to hear back from you.  My Clerk and Solicitor are pushing me for some ideas on how to proceed – in a timely manner.

 

Answer:

The Decision of the Committee has been appealed by the applicant to the OMB. The applicant is obviously appealing the denial of the side yard setback. If the Town was willing to mediate, then the applicant would have to work with the Town to come up with an acceptable solution prior to the OMB hearing. At the hearing, the Board will ask to hear evidence that the Town is supporting the revised proposal. The Town Planner may be called to provide evidence or the appellant may provide evidence at the hearing. Regardless, if the Town is supporting a revised proposal, they will need to be in attendance at the hearing. The Board may make a decision on the application which has been amended from the original submission, if prior to issuing its order, written notice is provided to the persons and agencies who received Notice of the original application (Section 45(18.1).

It does not sound as though common ground can be reached - therefore;

The Town would not entertain mediation and the OMB would render its decision which would be final and binding. Unless the Town is subpoenaed by the appellant, they would not have to attend. If the Town is against the proposal, and it was denied by the Committee, their presence may not benefit the appellant.

Given the fact that the requested variance and the actual variance were not the same (increased), the public was not provided proper Notice, and the applicant should have to reapply with the correct variance. The Committee did not defer the application at the hearing, they made a Decision on the original request, therefore the applicant can only appeal the Decision or file a new application.

A Decision was made to deny the requested variance (6"), not the actual variance (1.5"). Therefore, the Board would have to approve an amended application and decide whether or not the revised variance is major or minor (and requires notice prior to issuing its order).

If the Board approved the requested variance (6") the applicant would still have to reapply because he would still not conform to the By-law.

Also, you noted that the appellant did not provide reasons for the appeal, which may be grounds for the OMB to dismiss the appeal without a hearing (45(17).

 

When entertaining an application for consent to sever where there is frontage (or flankage) on a County road, the County requests a condition as follows:

1)       That the applicant shall layout and dedicate by deed to the County of Northumberland a 0.3 m (1 foot) reserve along the frontage of County Road 18 of the severed portion, save and except a 10.0 meter gap in width to accommodate a future entrance at a location to the satisfaction of the County of Northumberland.

The purpose of Condition No. 1 is to require that future access/egress to this lot is taken at a preferred location so as to minimize disruption of vehicular traffic on County Road 18.

When recommending conditions of provisional consent to the Committee I make sure that the condition is worded so that the 0.3 m (1foot) reserve is only on that portion of the land that is in excess of the minimum lot frontage requirement so as not to create a lot that doesn’t comply with the by-law.

A couple of my committee members are having difficulty accepting this condition – the applicant has paid good money for their land and why do they have to give away a portion of the land to the County?  The reasoning of the County – to avoid entrances – does not ‘compute’ with them as the County has the power to approve or veto the location of any entrance to a property anyway, as they state in the condition.

One of my committee members took it upon herself to seek her own legal opinion on this and it was suggested to her that it may be beyond the scope of our zoning by-law and/or official plan to make this dedication a condition of consent.  I must now look into our documents and formally get a legal opinion on this.

While I realize that you will not comment on my zoning by-law and official plan, I would like to receive some guidance as to how and why we can impose this dedication.  How do other municipalities handle such requests from upper tier level of government? (which by the way does not provide a Planning function to the municipalities)  Does your municipal level of government take such dedications?

 

Answer:

Any condition can be imposed as long as it is reasonable and can be satisfied within the one year time frame.  Many municipalities impose a condition of consent to convey land for road widening purposes or to eliminate the possibility for additional entrances.  The Ministry of Transportation often imposes a condition to convey land to eliminate additional entrances.

Sample conditions from other municipalities:

That a <> wide strip of land across the frontage of the <> parcel be dedicated gratuitously to the "Municipality" for road widening purposes and that the Secretary-Treasurer be provided with sufficient evidence indicating that the conveyance has been completed to the satisfaction of the ???.   Such lands are to be conveyed free and clear of any mortgages, liens or encumbrances.  All costs associated with this conveyance are the responsibility of the applicant.

If required, a road widening to  m ( feet) from the centre line of  (name of road) along the frontage of the lot (to be severed and the lot to be retained) be dedicated to the "municipality", free of all costs and encumbrances, to the satisfaction of "name".

That the owner convey to the  Ministry of Transportation by deed, free and clear of all encumbrances, a 0.3 metre reserve along the entire highway frontage of the severed parcel and that the 0.3 metre parcel be illustrated as a part on a reference plan.  Contact the Ministry of Transportation at 519- 873-4580 for further information.

 

A Committee recently considered an application for a severance of a farm retirement lot.  The applicant met the criteria for a retiring farmer but had never actually lived on the property or even in the municipality.  The Committee was not convinced that the applicant was planning on building a house on the retirement lot and residing in it although he stated that it was his intention to do so.  There was a For Sale sign on the property but the applicant stated that the listing had expired and that the proposed land to be severed had not been included in the land that had been for sale.


The Committee considered imposing a condition that the severed parcel not be sold for a period of two or three years after its creation but wasn’t sure whether they could legally do that.  I believe the condition would be that the applicant enters into an agreement to be registered on title wherein he agrees not to transfer the property for a certain number of years.

Answer:

The Provincial Policy Statement (PPS) no longer permits the creation of residential lots in the agricultural area.  The Committee could turn down the application for the reason that it is not permitted in the PPS.

Division of land in agricultural areas is even more restrictive with the 2005 PPS; you can sever when there is a farm consolidation (surplus farm dwelling) under specific criteria, or boundary adjustments for technical purposes.  All planning decisions must also now be "consistent with" policies as issued by the Province (i.e. the PPS).  This is found under Section 3 of the Planning Act, under 3(5)(a).

PPS        (Link to PPS - http://www.mah.gov.on.ca/Page1485.aspx#2.3)

2.3.4 Lot Creation and Lot Adjustments

2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:

a.  agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;

b.  agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

c.  a residence surplus to a farming operation as a result of farm consolidation, provided that the planning authority ensures that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and

d.  infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

 

A question has arisen as to what constitutes an amendment to an application that committee has considered.  If a decision is made and before the appeal date has lapsed, can an amendment be submitted?

We have an amendment fee on our tariff of fees by-laws, one with re-circulation, the other without re-circulation, but we are not clear as to what constitutes an amendment.

Answer:

In response to your question regarding an amendment to a Committee of Adjustment application, the OACA "Technical Advisory Committee" provides the following for your consideration;

Minor Variances cannot be changed once the decision is made.  The applicant would have to re-apply for the new proposal.  The Pl. Act  Section 53(23) permits a “change in conditions” for “Provisional Consents” but not to the proposal.

An application can only be amended if the Committee has deferred their decision to a future meeting.  Your tariff of fees by-law is probably referring to a deferred application.  The fee requiring no recirculation is when Committee may need further information prior to a decision but the application does not change.  The fee requiring recirculation is when the applicant needs to make changes to the application and have it recirculated to the commenting agencies and the public.

 

I am a COA member and have a query regarding a non-conforming use.  We have received an application to de-merge a property and it has come to the committee's attention that a non-conforming use exists on one of the properties in question.   Do we have an obligation to investigate the non-conforming use to determine if it is a legal non-conforming use before we entertain the rest of the application?  If we do not address this issue, are we in fact saying through our inaction that it is deemed a legal non-conforming use?

Answer:

The onus is on the applicant to prove legal non-conforming status.  Any issues pertaining to the legal non-conforming status are beyond the Committee's jurisdiction.  i.e. septic system, etc.  However, through application circulation, such issues could be a concern to a circulated agency that could have no objection if approval was subject to certain conditions being imposed.

In accordance with Section 45(2)(a)(i) of the Planning Act, legal non-conforming status is not lost through obtaining additional lands but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed.

In the case of a property with legal non-conforming status being reduced in size losing its' legal non-conforming status, it is the opinion of TAC that this could be determined by your municipalities by-law or obtaining a legal opinion.

 

A committee made a decision to  approve the creation of one new lot.  At the meeting, one of the members (who is a surveyor but not OLS) suggested that the creation would mean that we would be approving lot creation in excess of 3+1 (per the OP).

When the application was received the parcel register indicated only 1 lot was taken from this original parcel by consent (the other by subdivision).  The member came in to my office with documents (and a comment from the OLS indicating that there was a period of time (apparently around 2000) when there was a “goofy” way of registering lands and this is why it is confusing), indicating that it WILL create one lot over the 3+1.

Notices of decision (approval) were mailed today.  Is there a mechanism for the committee to reverse its decision?  I can’t find anything in the Act. 
 

Answer:

Once a decision has been made by a Committee of Adjustment or Land Division Committee that decision is final.  There is a 20-day appeal period in which that application can be appealed to the Ontario Municipal Board.

 

What takes priority; the Planning Act or the Registry PIN numbers?

The owner of a property that is going through a plan of subdivision process wishes to add a small piece of land to one of the existing neighbouring properties to make their lot slightly larger.  It was indicated that before proceeding with their plan of subdivision, we could process a lot addition to add the small piece of land to the neighbouring property.  However, they have been advised (by their surveyor for some reason) that they should create the piece through the plan of subdivision and then convey it to the neighbouring property owner and it will merge with the existing PIN.  What about “once a lot always a lot” if it is created by consent or plan of subdivision???

Answer:

Regarding "Merging PIN Numbers", if the parcel is created as  a full lot or block in a plan of subdivision, the parcel will not legally merge with the existing lot.   If the existing lot to be enlarged is a whole lot in a plan of subdivision or was created by severance, the lot will need to be changed (1 sq. ft. taken out) so it is no longer the identical parcel.

Also, the owner should ensure that the lot to be enlarged and the plan of subdivision are in separate names.  Once the 1 sq. ft. is removed, if the lots are in the same name they will merge back with the lands within the Plan of Subdivision.

A simple lot addition from the plan of subdivision to the abutting lot is the cleanest way to go.   At the transfer stage, the lawyer will need to prepare the transfer and an Application to Consolidate (which will ensure that the two PINS will merge).  After registration, the newly enlarged lot will receive a new PIN as will the remainder of the plan of subdivision lands.

 

A learning institute is trying to submit a Land Division application, and today is the deadline.

He wants to submit a Land Division Application to sever a lease.

Last year they applied for consent to lease lands from the College.  On those lands are two residence buildings.  The solicitor for the College now wants to take the leased lands and split it in half so the two buildings will be leased in two names.

Have you heard of this? Is he applying for a lease again or a severance (of the lease)?

Answer:

The applicant would need to nullify the original lease from the college and then apply for two separate lease consents (two applications as they are two separate transactions).  The TAC agrees that there is no provision for a "severance of a lease" in terms of splitting the leased lands into two distinct parts.  If the owner of the land wants to sever the lands, consent would be required for a severance (division of the parcel).

 

This is the first application we have ever had for a company entering into a lease for over 21 years.  What form do we use and what section do we use 50 (3) or 50 (5)?  The site is under stile plan control, not subdivision control.  There has never been any subdivision control on these lands.

Staff had concerns addressing the issues around this consent and how to write their staff report as the building in question has no road frontage.

Also, once the Committee has made its decision, what certificate do we use - Form 1, 2, 3 or 4.  If we use form 3 or 4, what section do we quote, Section 50(3).  Also could you please explain the difference between 3 and 4.

Answer:

You would use Form 1 or Form 2 - no need to stipulate Subsections 50(3) or (5).  I use forms 3 and 4 only for merger applications and I don't specifically set out (3) or (5)  - particularly for Form 3 because the stamp references both subsections.  You may wish to reference the O.Reg, Section 9 to determine the form of certification but generally, a Form 1 is a stamp affixed to a deed or other document (in this case it would likely be a document general attached to the lease agreement); and Form 2 is the "Long Form".  I've attached a copy of Pelham's format for Form 2 for your reference (you likely have your own but ....).

Form 3 is a stamp used for merger applications and Form 4 is the long form for mergers.  In Pelham, we use only Form 2 (new lots, easements, leases, etc.) and Form 4 (mergers) because we are on electronic registration - we no longer "stamp deeds".  Form 4 sample is also attached.

Perhaps one thing to stress to Planning Staff for their report is that the lease approval does not create a parcel of land with frontage on a municipal road. If there is a concern that they want access available to the leased lands, they could incorporate an easement/right over the residual lands that are not the proposed leased lands. In this situation, you would describe the limit of the leased lands on the certificate and include consent for a right-of-way as follows:

"Together with a right-of-way in favour of the tenant to the uninterrupted and unrestricted use, in common with others, over the Common Areas (the definition of which includes, without limitation, all lands improved, from time to time for the purposes of parking, entrances and exits, access roads, driveways and pedestrian sidewalks, on the lands shown as "Part 2"

on the attached Schedule "A"). The Schedule "A" is signed by the Secretary-Treasurer and dated......"  or something to that effect that fits with the application.

Often the applicant or solicitor have not considered access as an issue but perhaps it should be considered in this instance.

 

Question with respect to the date when the Consent was given by the approval authority.

Our past practice was to incorporate the date when the authority approved the application, this being the date printed on the Notice of Decision form above the list of conditions.  However, recent information states that the date must be when the conditions were satisfied -- the approved consent, which is sometimes the date that the Certificate is issued.

Should the wording of the Certificate more accurately reflect this "that the consent of the Committee of Adjustment was "satisfied" on .... instead of "given" on ....

Often law firms in our area provide the stamp information on the Schedule, ready for the Secretary-Treasurer's signature and it appears that they are using the date when the application was approved -- not when the conditions are satisfied.

We would appreciate your expert opinion with respect to the Certificate of the Secretary-Treasurer.

Answer:

Many municipalities throughout Ontario incorporated a practice similar to that of your municipality by using the date of Committee's decision as the date that approval was given for a consent.  However, the date of the Committee's decision reflects a "Provisional (or conditional) Consent" only - the consent is actually "given" through the issuance of the final certification by the Secretary-Treasurer.  This is emphasized in the Planning Act, 53(17) - Notice of Decision, which references "provisional" consent.  Subsections 53(41) and 53(42) further emphasizes this and stipulate that the certificate shall be issued once provisions of the Act have been complied with (53(41) indicates that conditions are to be fulfilled, etc.).

Ontario Regulation 197/96, as amended, prescribes the wording for the issuance of certificates.  Section 9 of the O.Reg. indicates that Form 1 is intended to be a stamp for non-stipulated consents, Form 3 is to be a stamp for stipulated consents under 50(3) or (5)  and that Forms 2 and 4 are the Certificates (long form) to be issued.  Further, the O.Reg. specifies the wording to be used in both the stamps and "long form" certificates.

We do not have any authority to change the wording of the forms of certification, as this wording is prescribed by the Province through the Ontario Regulation.  The wording correctly reflects the intent of the Planning Act in that the consent is "given" when the final certificate is issued ... which is conclusive evidence that all conditions imposed by the consent granting authority have been complied with.

There may be instances where the date noted in the body of the certificate is identical to the date the certificate is signed, however our information from various contacts at the Ministry of Municipal Affairs and Housing indicates that this is correct.  You may find it interesting to note that Ministry officials have historically issued certificates in this format in areas under their jurisdiction.

We hope this information is helpful ... it may just take a little getting used to the difference in the date, however it does appropriately reflect the date that "final consent" is given - that is once all conditions of the "provisional" or "conditional" consent have been satisfied.

 

If the Planning Staff report is not presented or elaborated on as a whole at the hearing when all agency comments are being read aloud, should the Committee be moving to receive that Planning report?   All that is given from the report, by myself (Sec/Treas) is the conclusion and the recommendation.   Unless the Committee has questions or requires clarification nothing else from the report is given and the Planner attending does not give any review of the report. One member feels it is necessary to receive the report via a Mover & Seconder.   Would you be able to give some clarification to this?

All Committee members always receive a copy of the planning report prior to the meeting.  If there are any agency comments who have concerns or oppose the application they receive those as well, otherwise a short version is given of each agency comment, i.e.   ‘no objection’ or ‘we have no concerns’. The whole letter is not read aloud.  This is the same way the Clerk  reads out any letters to Council at a Council mtg.

The same is done with the planning report; if there are no concerns and the planning report is stating that they recommend approval, then only that portion of the Conclusion is read out along with any conditions noted in the Recommendation.  As mentioned before, unless the Committee has questions about the report or asks for clarification on any part, the Planner does not ‘present’ the staff report to the Committee.

Answer:

It is not mandatory that the Committee of Adjustment (approval authority) receive all correspondence by a formal resolution (i.e. by motion), which is often the practice of a municipal council.  As you are aware, the Planning Act indicates that any person or public body may make written submissions to the council (read Committee) before provisional consent is given or the application is refused.  Further, the OMB Submission Forms R3 for Minor Variances and R4 for Consents require that a copy of any planning report considered by the approval authority and copies of all written submissions and comments received be forwarded as part of the record in the event of an appeal.  This would seem to give merit to ensuring that the information was provided to the Committee and to the applicant.

Some Committees are in the practice of reading the planning report and any other written correspondence into the record during the public meeting. Other Committees are provided with a synopsis of the agency reports and written public input.

You may wish to consult your Procedural By-law for the Committee of Adjustment as well as confirm with your municipal clerk as to whether or not local boards are required to receive correspondence by motion as part of your municipal practices, however we are not aware of any Planning Act requirement to do so.

 

Our Committee held a Committee of Adjustment Meeting this morning to consider a Minor Variance that had been deferred at a previous meeting.

The Committee approved the Minor Variance today and I have a question regarding  the last day of appeal.  Section 45 (12) of the Planning Act, states that an appeal may be filed "within 20 days of the  making of the decision" .  For a decision made today that would make the last day to appeal on Sunday, October 11, 2009.  Is this acceptable to have the last day of appeal on a Sunday?  Should I be backdating to Friday, October 9, 2009, leave the date as Sunday October 11, 2009, or should I extend the appeal date to Tuesday, October 13, 2009 (since Mon. Oct. 12th is a holiday)?

Answer:

Your question has been the topic of discussion a number of times, and most recently an article in the OACA Newsletter appeared in the December 2008 issue to try and bring clarity to the matter.

To summarize the article, Ontario Municipal Board staff advise that the appeal period is counted from the date following the event or decision (this is the date of mailing for consents and the date of the decision for minor variances) and no matter what day this falls on, it is the "20 day appeal period date".  When the 20 day appeal period date falls on a weekend or a holiday, it is an acceptable practice to accept the appeal on the following business day.  BE AWARE, however, that you do not change the "20 day appeal period date" to the following business day - you just accept an appeal on that date.  The Board then has the authority to allow the appeal but we do not have the authority to change the statute requirement by changing the appeal period expiry date.

 

Question regarding extension of the one year lapsing date for provisional consent approval, we offer the following information for your consideration:

Answer:

Section 53(23) permits a Committee to change conditions of a provisional consent before a consent (the certificate) is given;

Notice of the change of conditions is to be given pursuant to 53(24), unless - in the opinion of the approval authority - the change is minor whereupon no notice of a changed condition is required;

Appeals to the changed conditions are permitted if notice was given, as stipulated in 53(27);  (The decision by the Committee that the change was minor enough to not require recirculation has the effect of denying any opportunity to appeal the changed condition.)

Section 53(41) is the section that determines  the one-year period after notice was given under (17) or (24), whichever is later (unless in the event of an appeal).  Section (17) references the original Notice of Decision; Section (24) pertains to Notice of a Change in Condition(s).

So it stands to reason then that if it was determined by the Committee that the change to conditions was minor, no notice of the change is required - and thus no extension to the one year timeframe would be permitted.

Your question as to what is considered to be a "minor" change to a condition, as per Section 53(26) - is discretionary in the opinion of the committee, which then determines if Notice of the Change in Conditions is to be provided.  Only when Notice is given under 53(24) would the lapsing date be extended to one year from the date of that later notice.

In reference to your third question - if a change in conditions is given and determined to require recirculation of the Notice of Decision and the Change in Conditions, Section 53(41) references the new Notice, so the one year is extended subsequent to that provision.  Not so much "automatically inferred" as to a new lapsing date, but rather stated in the provision of the Act.

 

Question regarding committee members being contacted outside of the meeting venue.

Answer:

Section 45(6) of the Planning Act dictates that the hearing of every application "shall be held in public" and the committee shall hear the applicant and every other person who desires to be heard in favour of or against the application.

You correctly reference 45(8) about the decision but we think 45 (6) is particularly relevant in this case.

Further, the Municipal Act, Section 239 requires that all meetings shall be open to the public.

These matters are quite clear.  However - if individuals are contacting committee members prior to the "meeting" - can that be called into question as being a meeting?  The TAC is hesitant to give advice on this - perhaps legal advice should be sought through your municipal solicitor.

We all  fully agree that members should NEVER discuss an application outside of the meeting itself and this is stressed to committee members both at local municipal levels and through OACA presentation.

Generally, committee members are advised that if they are contacted, to state that all evidence will be heard at the meeting.  This holds true for site visits, etc.

As for the Statutory Powers Procedures Act - essentially it says that meetings of tribunals shall be open to the public except in certain circumstances.

 

Question regarding consent for easement.


Answer:

The easement should be registered on title describing the specific part of the land (including being set out on a Registered Reference Plan) and also the dominant and servient tenement set out.  This  specifically grants the rights over that portion of land, describes the land, the purpose of the easement (i.e. vehicular or pedestrian ingress and egress) and who has those rights.  It would not be a blanket easement/public road access.  If the owner wants to enter into an easement with another individual, that would be a separate consent for easement application.
 

I am looking for information about how other municipalities handle requests for deferrals of decisions.  Our Committee has had a number of requests by lower tier municipalities at the last couple of meetings and we are looking for input on what other committees do.

Answer:

If public notice has not been given, the application can be held at the request of the owner/agent/applicant (in writing) until such time as the application is ready to proceed.

If public notice has been given, the application must proceed to the hearing.  The applicant can request Committee to defer the application to a future date.  Some Committees have deferral fees.

If a request for a deferral comes from a commenting agency or department, the Committee must still ask the owner/applicant/agent if they wish to defer based on the comments. The applicant may want a decision from the Committee.

 

Question regarding lands merged through expropriation.

Answer:

The severed parcel is no longer the identical parcel of land and therefore merges with any abutting land in the same name.  Although unfortunate, the applicant will require a consent to separate the lands.  Under the circumstances, the applicant could request that the fees be waived for the consent application and any minor variance applications that may be required for lot area due to the expropriation.

 

Is there anything in the Planning Act that you know of stating that Council are not to interfere, comment or have influence over the Committee of Adjustment regarding their decisions?  Any help you can offer would be greatly appreciated.

Answer:

Although the Planning Act does not speak to Council's involvement other than to be appointed to a Committee of Adjustment, it is the opinion of the OACA Technical Advisory Committee that once Council has delegated authority to a Committee of Adjustment, as per Section 54 of the Planning Act, Council is no longer involved in the decision making but do have the right to appeal a decision of the Committee of Adjustment.

The purpose of Council delegating authority is so they do not have to be involved in the process.  Many committees are composed of members who are not members of council and members of council but Council's involvement is still only in appointing the members and having the right to appeal a decision.

We have an application for a minor variance.  The owners and surrounding property owners have been circulated, but the owner has not posted his Notice sign or signed an affidavit that he has done so. Do we continue on with the hearing (this Wednesday) or not?

Answer:

Regulation 200/96 Sections 3(1), 3(2), and 3(4).  If using Section 3(2) you must circulate as well as post the sign.  If the applicant has not posted the sign proper notice has not been given.  Since the public has been notified by mail the application will need to come before committee for adjournment to complete proper notice requirements.

 

In response to your question regarding circulation for minor variance notices, the OACA "Technical Advisory Committee" provides the following for your consideration;

In accordance with legislation, direction from the Committee is required to use the 30 metre circulation.

3.(2) Notice under subsection (1) may be given by doing both of the following:

1. Giving notice by personal service or prepaid first class mail to every owner of land within60 metres of the area to which the application applies. However, if a condominium development is located within60 metres of the area, notice may be given to the condominium corporation, according to its most recent address for service or mailing address as registered under section 7 of theCondominium Act, 1998, instead of being given to all owners assessed in respect of the condominium development.

(6) Despite subsections (2) and (3), where a zoning by-law restricts the use of the land which is the subject of an application to detached, semi-detached or duplex housing and the application is for a minor variance under subsection 45 (1) of the Act, the committee of adjustmentmay direct that the area of notification set out in those subsections be reduced to30 metres. O. Reg. 200/96, s. (6); O. Reg. 432/96, s. 1 (1).

 

 

In response to your question regarding how Committees deal with consent applications which will have a zoning amendment as a condition of consent, the OACA "Technical Advisory Committee" provides the following for your consideration;

Although some municipalities may make the zoning a condition of consent, typically, the Consent Application would be deemed premature until the Zoning By-law is in place, since Council is the approval authority of the Zoning By-law and Official Plan for the municipality. The applicant would file the Consent Application once Council has approved the Zoning. If the Consent Application is filed within the zoning appeal period, a condition that the Zoning By-law become final & binding would be required as a condition to facilitate the Consent Application.

Response to additional questions :

1. Is there a different application?

Yes. The applicant would have to file a Zoning By-law Amendment application with the Town and work with planning staff to finalize the process (Council approval). Once the Zoning is in place, the applicant would file a Consent Application to finalize what Council has already approved. Both applications require different processes and prescribed information under the Planning Act.

2. Is there a different or concurrent fee?

Zoning By-law and Consent Applications are two different processes (with different legislative requirements) and require separate fees.

3. Do you combine notifications?

Notice requirements and prescribed information are different for both applications - Consent Applications Section 53(5) of the Planning Act, O. Reg. 197/96 - Zoning By-law Amendments Section 34 of the Planning Act, O. Reg. 545/06. Public Notice would be processed separately and would be specific to legislative requirements.

4. Do you consider appeal periods separately?

Yes, appeals are considered separately and they are both subject to different legislative requirements.

5. Does council actually consider and approve zoning amendment that same evening or do they direct that you proceed with zoning after provisional consent is given?- I would like to find out about how Committees deal with consent applications which will have a zoning amendment as a condition of consent. - Zoning approval should be in place prior to the applicant receiving approval for Consent. Should the zoning be refused, the Consent application would expire (if a condition included) and would not conform to the Zoning By-law. It is in both the applicant’s and the municipalities best interest to ensure that the zoning is in place to support the proposed Consent. As previously stated, typically, the Consent Application would be deemed premature until the Zoning By-law Amendment receives Council’s approval. (A Consent Application could be submitted within the appeal period of the Zoning Amendment, however, the decision would be subject to a condition that the zoning become final and binding). It is Council’s responsibility to approve/deny the Zoning which in turn would provide the Committee clarity when approving/denying the Consent.

6. Does council give two motions, one for consent, one for zoning? –Council (depending on authority (i.e. upper/lower tier) approves the Zoning By-law Amendment. If Council has delegated their powers to a Committee of Adjustment or Land Division Committee, approving the Consent Application would no longer be within their jurisdiction unless By-laws were amended to authorize them to re-assume responsibility. The applicant would have to receive Council approval for the Zoning By-law and Committee approval for the Consent. If Council has not delegated authority, the applications for consent and rezoning may be considered concurrently, however, the circulation requirements are different and there is a difference in the timing for hearing of the applications.