City staff often absent from OMB appeals

Residents have been left alone to defend city’s planning decisions

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 re-state 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.

When those committee decisions are appealed, they go to the OMB, which has been criticized for being unelected and unaccountable to communities.

But starting May 3, residents will no longer have to stand before the board. 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 last week. “I am woefully unprepared. This is unmatched.”

The Sturms are requesting permission to build a bigger home, above the parameters set out by the city. Their plans, as originally submitted, would include six bedrooms and six bathrooms not including a nanny ensuite, crafts room, walk-in toy storage closet and a two-car garage. The committee of adjustment refused the application in October.

Last week, 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 to attend 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, 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 fewer 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 To- ronto 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. The seven-member panel was nominated by a citizens’ group and approved by council.

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

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,” he said.