Legal Department Practice on Files Without

In-House Planning Support

Caroline Huaping Chiang, 43 Alanbull Square

Juhan Holdings Limited, 5739-5745 Finch Avenue East

1248161 Ontario Limited, 255 Blantyre Avenue

The Scarborough Community Council recommends the adoption of Recommendation (1) in the following report (October 2, 1998) from the City Solicitor, viz:

"that $25,000.00 be allocated to the Legal Department from the Corporate Contingency Account to retain planning witnesses with respect to the pending Ontario Municipal Board appeals on 5739 and 5745 Finch Avenue East and 255Blantyre Avenue."

The Scarborough Community Council reports having referred the issue respecting 43 Alanbull Square back to the City Solicitor with the request that he report further to the Scarborough Community Council with a full accounting for the time period between April 16 and July 16, 1998, as to why the Legal Department did not identify to the Scarborough Community Council, the City Council, nor the local Councillors, the issue of funding and the lack of planning evidence at the Ontario Municipal Board hearing with respect to 43 Alanbull Square.

The Scarborough Community Council submits the following report (October 2, 1998) from the City Solicitor:

Purpose:

The Law Department is reporting, as directed, on the Municipal Board's decision for 43 Alanbull Square and is seeking the direction of Council on two other similar matters.

Funding Sources, Financial Implications and Impact Statement:

$25,000.00 to be allocated from the Corporate Contingency Account for the retention of outside planning witnesses.

Recommendations:

It is recommended:

(1)that $25,000.00 be allocated to the Legal Department from the Corporate Contingency Account to retain planning witnesses with respect to the pending Ontario Municipal Board appeals on 5739 and 5745 Finch Avenue East and 255 Blantyre Avenue; or

(2)in the alternative, that Council direct the City Solicitor to appear at the Ontario Municipal Board in support of the pending appeals.

Council Reference/Background/History:

At its meeting of September 16, 1998, Scarborough Community Council directed the City Solicitor to report to the October 14, 1998, Community Council meeting regarding the lack of planning evidence at the Ontario Municipal Board hearing for 43 Alanbull Square.

The Law Department became involved in this file as a result of Council's reversal of the Planning Commissioner's recommendation that a lawyer NOT attend at the Ontario Municipal Board hearing. The Planning Commissioner made this recommendation to Community Council because the planner who reviewed the file was of the opinion that the variance constituted good planning and therefore should have been granted. When Council reverses the recommendations of the Planning Department and instructs a solicitor to attend at a Municipal Board hearing, the solicitor is unable to call City planning staff to provide evidence and therefore, the chances of success before the Board are greatly reduced. In the past, solicitors from the former Scarborough Law Department routinely attended at the Ontario Municipal Board on minor variance appeals without planning evidence as was the situation in this case. It should be noted that the current account allocated for outside planners is overspent due to a major Municipal Board hearing in the spring of 1998 which required the retention of outside planners and traffic consultants.

The Ontario Municipal Board is awarding costs more frequently against parties who call no evidence and therefore, Scarborough's former practice can no longer be supported by the Legal Department. After a review of the practices of the former municipalities, the attached reports from the City Solicitor were considered by Council at its meeting held on October 1 and 2, 1998. Due to budgetary considerations, funds for outside planners are to be allocated from the Corporate Contingency Account until such time as Budget Committee and Council determine the appropriate budget location for these funds in the operating budget.

Council has recently instructed the City Solicitor to attend at the OMB contrary to the recommendations of the Planning Department on the following two properties:

(1)1248161 Ontario Limited, 255 Blantyre Avenue.

Planning staff are in support of the variance to allow a senior citizens home to exceed the coverage requirements of the site. Council has instructed the City Solicitor to support the decision of the Committee of Adjustment to refuse the variance. Estimated cost of retaining and calling an outside planning expert in support of Council's position; $10,000.00.

(2)Juhan Holdings Inc., 5739 and 5745 Finch Avenue West.

Planning staff recommended that the Malvern Community Zoning By-law be amended to add Day Nurseries, Personal Service Shops and Restaurants on the site. This recommendation was refused by Council at its meeting of July 29, 30 and 31, 1998. Estimated cost of retaining and calling an outside planning expert in support of Council's position; $15,000.00.

Conclusions:

The amounts provided above are estimates based on the estimated length of the hearings. Staff have not yet canvassed the profession to determine if an outside planner would be prepared to testify at these hearings in support of Council's position. In particular, it would be important to secure planning evidence with respect to 5739 and 5745 Finch Avenue West as there is an increased possibility of costs being awarded against the municipality where no expert evidence is provided on zoning appeals.

Contact Name:

Brendan O'Callaghan, Solicitor

Planning & Administrative Tribunal Law

Tel: (416) 392-7786

Fax: (416) 392-0005