LS17.2 REPORT FOR ACTION Enforcement of Ontario Municipal Board Decisions and Orders Date: February 17, 2017 To: Licensing and Standards Committee From: Executive Director, Municipal Licensing and Standards Wards: All SUMMARY This report responds to a request from the Licensing and Standards Committee meeting of March 24, 2015 for a report on the enforcement of Ontario Municipal Board (OMB) decisions and orders and how to strengthen this type of enforcement. The OMB is an independent, quasi-judicial, administrative tribunal responsible for handling appeals of land-use planning disputes and municipal matters. The range of appeals considered by the OMB includes, but is not limited to, those related to official plans, zoning by-laws, plans of subdivision, site plan approval, as well as severances and minor variances through the Committee of Adjustment (C of A). This report outlines the City's current enforcement procedures for OMB orders that are related to the construction and development process. In this process, OMB orders can be enforced while the building permit is active (through the review of plans and issuance of building permits); and upon completion of the construction (through enforcement of the Zoning By-law; and through enforcement of Site Plan agreements). As a result of this review, staff have identified the need for additional training for enforcement staff, and enhancements to IBMS, to improve enforcement of OMB orders and C of A decisions. When a complaint is received about an OMB order not being adhered to, it is necessary for enforcement staff to access the OMB order. In 2013, it became a standard practice of the City Planning division to upload OMB orders to the related IBMS file. While this practice has simplified the process to access this information, enforcement staff in the Municipal Standards and Licensing division (ML&S) were not provided training on how to locate and retrieve this information. The division will begin providing this training in 2017. With this training, and the availability of information through enhanced features of IBMS, staff are satisfied that sufficient resources and procedures will be in place to respond to these complaints as they arise. City Planning, City Clerks, Toronto Building, and Legal Services were consulted in the preparation of this report. Enforcement of OMB Decisions and Orders Page 1 of 5
RECOMMENDATIONS The Executive Director, Municipal Licensing and Standards recommends that: 1. Licensing and Standards Committee direct the Executive Director of Municipal Licensing and Standards to undertake the necessary work to ensure that enforcement staff have access to OMB orders, including additional training and enhancements to IBMS. FINANCIAL IMPACT There is no financial impact resulting from the adoption of the recommendations in this report. The Deputy City Manager and Chief Financial Officer has reviewed this report and agrees with the financial impact information. DECISION HISTORY At its meeting of March 24, 2015, Licensing and Standards Committee requested the Deputy City Manager, Cluster B to report on the enforcement of Ontario Municipal Board decisions and orders and how to strengthen this type of enforcement: http://app.toronto.ca/tmmis/viewagendaitemhistory.do?item=2015.ls2.2 COMMENTS The range of appeals considered by the Ontario Municipal Board (OMB) include, but is not limited to, those related to official plans, zoning bylaws, plans of subdivision, site plan approval, as well as severances and minor variances through the Committee of Adjustment (C of A). For matters relating to construction and development, OMB orders can be enforced while the building permit is active (through the review of plans and issuance of building permits); and upon completion of the building (through enforcement of the Zoning By-law; and through enforcement of Site Plan agreements). 1. Enforcement of the Zoning By-law Anyone wanting to use, alter or develop their property in a way that does not conform with the Zoning By-law must apply to the City for a site-specific amendment to the Bylaw. There are two ways to achieve a variance from the Zoning Bylaw: apply for a Zoning Bylaw Amendment or apply for a Minor Variance. A Zoning By-law Amendment (commonly called a "rezoning") is required when a major revision to the By-law is proposed, such as a land use change or a significant increase Enforcement of OMB Decisions and Orders Page 2 of 5
in building height. A Minor Variance is required if a small change from the requirements of the By-law is proposed. Common Minor Variance applications include requests for relief from the building setback, building height, and parking provisions of the By-law. Rezonings are considered by City Council, and Minor Variances are considered by the Committee of Adjustment (C of A). Decisions from both forums can be appealed to the Ontario Municipal Board (OMB). Appeals can be submitted by the applicant, the municipality, or a member of the public, provided that they are submitted within the specified time frame. Following a hearing, the OMB will make a decision to approve, modify, or refuse the appeal. The C of A, or the OMB on appeal, may impose conditions that relate to the variance being granted. When variances to the zoning by-law are approved by the C of A or the OMB, the order applies to the property until such time as the variance is no longer required (for example, if the property is redeveloped). As a result, C of A decisions and OMB orders may be in effect for the lifetime of the property. Throughout the life of the property, it is the responsibility of the property owner(s) to maintain compliance with the order. Tracking Committee of Adjustment decisions and OMB orders Integrated Business Management System (IBMS) is used by City Planning staff to record all phases of a planning application including C of A applications, rezonings, site plans and OMB appeals. All OMB orders are uploaded to the related IBMS file by City Planning division staff. This became a standard business practice in 2013. OMB orders from 2001 onwards are also electronically available from the OMB website. If the order was issued prior to 2001, the order can be obtained directly either from the OMB or from Archives Ontario. Staff have identified the need to make enhancements to IBMS to improve access to information by making it easier to identify minor variance and OMB orders. Complaints and Enforcement Action ML&S is responsible for enforcement if the property owner does not continue to fulfill the variance or conditions that were imposed by the C of A or the OMB. ML&S enforces non-compliance with OMB orders on a complaint basis. Following a complaint, ML&S Officers review provisions within the Zoning by-law and any related C of A decisions or OMB orders. An on-site inspection of the property is also conducted to verify the complaint. If it is determined that the property is not in compliance, the owner is notified and directed to bring the property into compliance. Charges can be laid if the owner does not bring the property into compliance. In 2015, 3,980 Minor Variance applications were considered by the C of A, of which 460 were appealed to the OMB. The number of complaints related to non-compliance of C of A decisions is very low: between January 1, 2010 and November 22, 2016, 5 complaints were submitted to the City. No complaints related to non-compliance of OMB orders were received during this same period. Because these types of complaints are so few, the need for enforcement staff to be trained on how to access and retrieve OMB orders was not previously identified. The Enforcement of OMB Decisions and Orders Page 3 of 5
division will begin providing this training in 2017. With this training, staff are satisfied that the division will have sufficient resources and procedures in place to respond to complaints as they arise. 2. Ontario Building Code Enforcement A permit is required by any person making a material alteration to a building, including construction, demolition, renovation and change of use. If an applicant complies with the requirements of the Ontario Building Code (OBC) and all other approvals and applicable laws (such as the zoning by-law, C of A decisions, and OMB orders), the Chief Building Official will issue a building permit. Following construction, Building Inspectors then verify that the building as-constructed is consistent with the issued permit, associated plans, drawings, and any other documents. Verification of OMB orders are completed by Toronto Building staff at both the plan review and inspections stages as part of routine practices. Plan review staff check if an OMB order related to the property has been issued. Toronto Building inspection staff verify that construction is in compliance with the order. Toronto Building's regulatory role, under the Building Code Act, ends upon completion of the project. If the work contravenes the Building Code Act, or the Ontario Building Code, Toronto Building will undertake enforcement actions using the available regulatory tools. Where construction does not comply with an OMB order, these same enforcement tools are used by Toronto Building inspectors to obtain compliance. 3. Enforcement of Site Plan Agreements Site Plan Control is a process that considers the design and technical aspects of a development proposal to ensure it is compatible with the surrounding area, and with the City's economic, social and environmental objectives. Features such as architectural design, site access and servicing, waste storage, parking, loading, landscaping and pedestrian infrastructure are reviewed in the Site Plan process. Municipal Code Chapter 415, Development of Land, defines the type of development that is subject to Site Plan Control. Generally this includes developments that have a greater impact on the urban landscape, such as mid-rise and tall-buildings, institutional buildings, and industrial buildings, among others. Applicants of developments that are subject to Site Plan Control are required to enter into an agreement and post financial securities as part of the Site Plan Control process. The terms of that agreement are binding on the current and any future owners of the property. Tracking Site Plan Agreements When a Site Plan application is approved - whether by the Chief Planner, their designate, or the OMB - the agreement is then registered on the title of the property. All Site Plan Agreements for new applications are uploaded to the related IBMS file by City Legal staff. This became a standard business practice in 2006. Copies of Site Plan Agreements registered prior to this time can be obtained by conducting a title search of the property. Enforcement of OMB Decisions and Orders Page 4 of 5
Compliance with Site Plan Agreements Following completion of a development that is subject to Site Plan Control, Site Plan Technicians from the City Planning division inspect landscape features of the development to confirm that it has been built in accordance with the approved Site Plan agreement. Other city divisions also have a role in determining compliance with Site Plan agreements. For example, the Engineering & Construction Services division requires certification from the applicant's Engineer that the site has been constructed in accordance with the approved grading, servicing, and storm water management reports/studies. If the property is not built according to the approved Site Plan agreement, or if deficiencies are identified, the applicant will be notified and required to undertake additional work to bring the development into compliance. If the applicant fails to comply with the terms and obligations contained in the agreement, the City can utilize the financial security to complete the outstanding work and obtain compliance with the agreement. If the owner fails to comply with the terms and conditions of the agreement after the City has released the financial securities, the City can bring them into compliance by suing for breach of contract through the courts. CONTACT Mark Sraga Director, Investigation Services Municipal Licensing and Standards 416-392-7633 msraga@toronto.ca SIGNATURE Tracey Cook, Executive Director Municipal Licensing and Standards Enforcement of OMB Decisions and Orders Page 5 of 5