Subject: Delegation of Authority to Grant Minor Variances from Sign By-law

Purpose:

To report on how Councils authority to grant minor variances from the former City of Toronto Sign By-law could be delegated in routine situations.

Financial Implications and Impact Statement:

There are no financial implications resulting from the adoption of this report.

Recommendations:

It is recommended that this report be received for information.

Background:

At its meeting on July 15, 1999, Toronto Community Council requested:

the City Solicitor to report as soon as possible to the Planning and Transportation Committee on how routine Sign By-law variance applications can be delegated to the Commissioner of Urban Planning and Development Services, including appropriate bump-up procedures.

Comments and/or Discussion and/or Justification:

The Sign By-law (chapter 297 of the Toronto Municipal Code) was passed under the authority of paragraph 146 of section 210 of the Municipal Act.

Paragraph 146(g) of section 210 authorizes Council to grant minor variances from the Sign By-law:

The council may, upon the application of any person, authorize minor variances from the by-law passed under this paragraph if in the opinion of the council the general intent and purpose of the by-law are maintained.

1. Delegation to Staff

As noted above, Council may authorize a minor variance from the Sign By-law where it is of the opinion that the general intent and purpose of the by-law are maintained. Within the scope of this discretion, it is open for Council to decide, in advance, that it will be satisfied that the general intent and purpose of the Sign By-law will be maintained if certain conditions or criteria are met and that variances should be authorized in these instances. The approval of individual applications which satisfy the conditions or criteria could then be delegated, by by-law, to an employee such as the Commissioner of Urban Planning and Development Services pursuant to subsection 102.1(1) of the Municipal Act. This delegation is permissible because the Commissioner would be fulfilling an administrative function and would not be exercising any discretion. Applications which do not satisfy the criteria would need to be considered by Community Council and ultimately City Council in the ordinary course.

If desired, a bump-up mechanism could be incorporated whereby councillors would be notified of applications relating to their wards and would have the option of having an application referred to the Community Council and City Council for consideration (ie. effectively rescinding the delegation to the Commissioner in that particular instance). Unlike staff, City Council would not be bound by its prescribed criteria in deciding whether to approve an application.

A by-law would need to be passed to give effect to the delegation and Council would also have to agree on the criteria or conditions to be applied by the Commissioner. The criteria or conditions would then be included in the by-law.

2. Delegation to Committee of Adjustment

Subsection 45(3) of the Planning Act authorizes Council to empower the Committee of Adjustment to grant minor variances from the provisions of any by-law that implements an official plan. If an appropriate statement was included in the Citys official plan, it would appear that the Sign By-law would qualify as a by-law that implements an official plan and consequently that the Committee of Adjustment could be given the authority to grant minor variances from its provisions.

It is not clear that the Legislature intended subsection 45(3) to be used in the manner described above. There are also operational difficulties associated with this approach. Both Council and the Committee would be authorized to grant minor variances from the Sign By-law, the former under the Municipal Act and the latter under the Planning Act. If applicants were permitted to choose which of the two routes to take, it could lead to inconsistent results, as Council cannot fetter the discretion of the Committee of Adjustment in considering such matters. One way of addressing the situation would be for Council to refuse to exercise its discretion under the Municipal Act, thereby forcing applicants to apply to the Committee of Adjustment.

Delegation to the Committee of Adjustment would also mean that Council would lose control over the sign variance process. The Committee of Adjustment must follow procedures that are set out in the Planning Act and its regulations. There is no mechanism in the legislation for the City to dictate policy to the Committee nor to regain control over an application where the City disagrees with the decision of the Committee. If the City was unhappy with a decision of the Committee, the City would be forced to appeal the decision to the Ontario Municipal Board. For the reasons given, this is not a recommended option.

3. Amendment to Sign By-law

The number of routine applications for sign variances could potentially be reduced by easing the restrictions contained in the Sign By-law so as to eliminate those applications for which approval is currently a virtual certainty. However, this option may not have the desired effect in that applicants may always be motivated to push the envelope beyond the limits imposed by the by-law and might revise their expectations upward. For this reason, this is not a recommended option.

4. Special Legislation

Another option would be to ask the Minister of Municipal Affairs for special legislation giving Council the authority it seeks, possibly with greater scope for delegation than that currently available under the Municipal Act.

Conclusions:

Council is permitted to delegate the authority to approve sign variances to the Commissioner of Urban Planning and Development Services or any other employee if criteria are established by Council which would make this approval an administrative function and which would ensure that the Commissioner or employee is not required to exercise any discretion. Where an application meets the established criteria, the Commissioner would be authorized to approve the variance. Where an application does not meet the criteria or is bumped-up at the request of the local councillor, it would be considered by the Community Council and City Council in the ordinary course.

Other options include delegation to the Committee of Adjustment under the Planning Act, easing the restrictions in the Sign By-law to reduce the volume of variance applications, and requesting the enactment of special legislation.

Contact Name:

Rob Billingsley

Solicitor

Phone: 392-7249

Fax Number: 392 - 1017

H.W.O. Doyle

City Solicitor

Legal Services