How do committees of adjustment and variance (to zoninig laws) work? TO
August 18, 2016 6:48 AM   Subscribe

How do committees of adjustment and variance to zoning laws work? I'm particularly interested in Toronto's committee. A developer has submitted a proposal for a property near me with some concerning variance requests. Some neighbours have started a letter-writing campaign, but i have the sense that the committee probably has formal criteria it uses to decide and the developer will know these while my neighbours don't and thus their arguments aren't likely to be effective. Explain to me how this works so that if I choose to join in I can do so more effectively.

Some of the variances of significant concern are:

1. The by-laws require that a commercial building be set back 7.5 metres from an abutting residential property. The proposed buiding will be set back 0 metres (i.e. it will be built to the property lines).

2. The by-laws require 3 loading docks for a building this size. The proposal is to build 1.

3. The by-laws say you can't have a loading area on the street. The building proposes two loading areas on the street (i.e. they intend to park trucks on a heavily-trafficed street, during off-peak hours, and unload from there).

4. The by-law says the maximum commercial floor space is X. The proposed building will have 3x floor space.

5. The by-law says any restaurant must be on the first floor. The proposal will have a restaurant on the third floor.

6. The by-law says bicyclye parking is required. They will have no bicycle parking.

7. The by-law says they cannot have an entry-exit onto a residential property. The proposal will have such an entry-exit (for both cars and people -- so because the building is right up against the property line, any door along that side of the building means people would be stepping out onto a residential property, any truck coming out of the loading dock would be coming out onto a residential property ).

There are more, but those are the biggest.

My neighbours' emails they intend to send (god help me, I'm in a reply-all hell and i don't know how to get out without offending my neighbour, but I've been reading and not replying), are basically about A) This will hurt neighbours of the development and their property values and B) the entire proposal requires an easement which they have not actually secured yet and which may or may not happen.

I'm worried that it's not the city's job to protect our property values and that the city will just say "Well if they don't get the easement they obviously won't build it, but we're here to decide that if it's ok for them to build it, not if they will, so whether they have the easement or not is not our problem really."

I suspect that they have a list of criteria by which they judge these variance requests and that any argument that isn't "A variance is only allowed if X, but x is not the case here because Y" will be useless. And of course the developer will know how this works and be making all their arguments based on X while my neighbours get their shorts in a knot about the easement battle.

Also, my neighbours are basically arguing "You should reject every variance because this property would be bad for us." I suspect that the city's main concern is the city and neighbourhood as a whole, not "us." I also suspect that the merits of each variance will be addressed one by one, and that there's no "this whole project is terrible, let's just reject everything" option.

So, how do committees of variance work, and how might this knowledge best be used to argue against variances like these?
posted by If only I had a penguin... to Law & Government (11 answers total) 3 users marked this as a favorite
Here is the city of Toronto's process for minor variance & consent applications. The developers will have to amend their proposal a bunch of times to meet requirements; if it goes through, there will be a public hearing, at which "Any person having an interest in [the applicant's] application will be invited to identify themselves and given an opportunity to make their views known". So keep an eye out for the public notice.

(I think for a strategy, effective to just chip at each variance.)
posted by cotton dress sock at 7:07 AM on August 18, 2016

Response by poster: There is a hearing coming up. Does that mean the variance committee has already asked for the requests they want and gotten them? I assume that means that the variances are highly likely to go through, since they've already done what the committee wants?
posted by If only I had a penguin... at 7:15 AM on August 18, 2016

There are "land use" attorneys who represent homeowners such as yourselves in this kind of matter. If you're on a short timeline, you need someone who knows what the deadlines are and whether it's possible to alter them (as well as the substantive issues that are causing you concern).

I've only worked on a couple of cases like these, but practically speaking, even if you do everything right, you're unlikely to prevent the development entirely. However, you may get some concessions or accommodations, or you may just get what is essentially a payoff to stop interfering with the developer's lucrative project.

TL;DR: Call a land-use attorney.
posted by spacewrench at 7:27 AM on August 18, 2016 [4 favorites]

If you go to the hearing, don't just talk about your property value. Talk about how the variances they are asking for will affect your quality of life and the quality of life of your neighbors. Be specific. Get as many people as possible to come to the meeting.
posted by mai at 7:27 AM on August 18, 2016 [2 favorites]

This is what your Councillor is for. Reach out to their staff and book an appointment (in-person) where a staffer can explain the process to you. Ask them who else you should talk to and book an appointment with THEM (probably someone in planning). Ask THEM who else you should talk to. Sit in on a few other committee meetings about other projects so you get a feel for the flow and the players. The developer has already had lots of these types of meetings with City Staff where they were also intelligence-gathering so you are just (somewhat) leveling the playing field.

Look to see what the developer's last project in Toronto was an look up the minutes from THOSE meetings (usually available online) and find the name of local activists that presented and touch base with them. Look at other recent developments in your neighbourhood and look up who spoke up then, too. A lot of it is a long slow, process, that requires documents to be filed and with i's dotted and t's crossed, and it is deliberately kept opaque from residents while maintaining the facade of "openness". Personally, I would also look up who donated to your Councillor's last campaign and see if this developer appears on the list. That information is just good to have in your back pocket when looking at motivations.
posted by saucysault at 7:28 AM on August 18, 2016 [5 favorites]

They'll have gotten advice from the city and probably from a consulting firm. But they could submit an application as long as it's complete. You can search for proposals here, and could probably get some information from the indicated contact.
posted by cotton dress sock at 7:30 AM on August 18, 2016

I'm not 100% familiar with the process in Toronto, but it should work similarly to that in Ottawa because they're both bound by the Ontario Planning Act. As you mention, these variances need to go through a committee of adjustment, with the information from the public hearings used as evidence as they make their decision whether to allow variances.

As you suspect, each of the variances will be considered separately, so they may decide to grant a few of them and not others. It's possible also that the development company is asking for extra variances in order to get a few that they actually want, so a good tack is to know which ones are dealbreakers for your community and which ones you can live with. Know where the compromises lie.

As Saucysault says, your councillor is your best bet to getting your voice heard in this project (particularly if you have a progressive urban councillor who takes a hard line on the nature of the community plans). You might also want to seek out other councillors who are vocal about this type of thing, as well as whoever the chair of the planning committee is.

It's definitely a good idea to get into touch with people who have been through this type of thing before and who know the processes, including what committees development variances need to go through. If you're active on Twitter, you'll likely find others who know the process and can give you a hand. Also as others have said, definitely don't focus on your property values. Nobody cares about your property values, but they DO care about quality of life and specific goals of the city (according to neighbourhood plans); that's what these bylaws are there for. Make sure to get familiar with the neighbourhood plan as well, so you have solid data and council-supported decisions to back up your position on this development.
posted by urbanlenny at 8:14 AM on August 18, 2016 [2 favorites]

The unloading-on-a-public-street thing is kind of a rude way of saying to the city that they've factored in a lifetime of parking tickets into the building's revenue, and the city can go stuff themselves. Toronto Fire Services usually take a very dim view of anything that restricts access.
posted by scruss at 8:34 AM on August 18, 2016

Talk to your Planning & Zoning departments. I've been on the other side of this process in Portland, OR (but for a much smaller structure with way less impact on the neighbors) and city staff helped us find the criteria we would need to address. The questions basically covered:
- How will this impact the neighbors?
- How will it impact the environment?
- How is your proposal consistent with the intent of the law, even if it doesn't meet the letter of the law?
- How will you minimize or mitigate any potential negative impacts?

I suspect the developer's proposal will be arguing for each variance that it will (1) somehow benefit the neighborhood, (2) reduce environmental impact, and/or (3) be the only way to make effective use of the property they are developing. If you can get a copy of it (in our case, it was sent around to all the neighbors at the beginning of the comment period) then you can make point-by-point arguments against each proposal.

Where we are, the zoning code (equivalent to your bylaws, I guess) includes "goal" statements before each section of specific requirements. If you can refer to these in your argument, that will make it much more convincing. ("The proposed on-street loading facilities will increase traffic congestion and risk of collisions, as people biking or driving down Nearby Street are forced to make sudden merges. This will reduce compliance with the stated goal of section 33.24.1, which is...")

You're right that property values aren't a top priority for city planners. Talk about how it will impact public safety, quality of life, usability of surrounding properties, and the transportation network with specific reference to local code/bylaws.

Our adjustment was a minor and fairly simple thing that never went to committee. The project you're making a case against is obviously huge by comparison, and I would expect them to have well-researched answers for anything the committee might ask. I didn't know about land use attorneys until today, but I think spacewrench may be right to suggest one.

On preview: What urbanlenny said. And, as scruss mentions, fire safety and emergency vehicle access is a particularly good point to hit. Planning may say "livable cities!" but Fire & Safety can always respond with "saving lives!" My (limited) experience is that when those departments disagree, Fire usually wins.
posted by sibilatorix at 8:49 AM on August 18, 2016 [4 favorites]

I've had to go to the COA and OMB already for my house and will be going back to the COA sometime soon so I have some firsthand experience with this (more than I'd like really).

Is this an application for a minor variance or major one? If it is for a minor variance then one tactic will be to claim that the variances sought, either individually or taken together, are not minor but major. The letter you got in the mail from the city should say if the hearing is for a minor or major variance. The sign in front of the property will also say this.

There is no requirement for disclosure ahead of the hearing. So you'll be able to see the application that was submitted to the COA (which will have the plans as well as the list of variances that are being sought) but possibly not any additional material that the developer plans on presenting at the hearing itself. This also means that you may not get to see the planning departments report to the COA which would outline what the city's concerns are. By the same token however that means you can submit material/testimony right up to the hearing itself.

You will want to talk to your councillor. If the councillor is on board with the development then it makes your job much harder because then you have to spend your own money fighting this instead of the city's. Even if the councillor is against the development (and so on your side) you should still collect signatures of people, send letters to the COA outlining your concerns for the development and have a couple of people come to the hearing to give their perspective to the COA. Sometimes the councillor will just send a letter saying they oppose the development but not give any real reasons, which doesn't really help the cause. There are hundreds of applications to go through that day so people will be limited to a couple of minutes for their submissions. Make sure that whoever speaks prepares ahead of time and stays on point.

I don't think the COA cares too much about property values but things like increased traffic, street congestion, established character of the neighbourhood and privacy/noise issues will at least be listened to. When we went to the OMB we had the situation where the city was raising privacy concerns with part of the design even though our neighbours were all in support of it and signed letters to that effect.

In the event that the COA accepts the variances then the decision can be appealed to the OMB. I think that neighbours are able to appeal the decision if they had made their objection to the proposal known to the COA but I am not sure what the requirements for that are and someone in your group should at least book a meeting with a lawyer who can go through what needs to be done. If you did end up going to the OMB then you would need to hire a lawyer and planner which will be expensive (easily $20,000+).
posted by any portmanteau in a storm at 11:33 AM on August 18, 2016

1. Don't give up hope.
2. Read the paperwork.
3. Go to the meeting and cite the zoning.

I know a case in Toronto where a developer wanted to knock down an old house and build an apartment in a residential area, and the project just got killed once the facts were all laid out at the variance meeting. In this case it was a kinda small-scale developer, who said some dumb things at the meeting.
posted by ovvl at 6:51 PM on August 18, 2016

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