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HomeMy WebLinkAboutCOR-2023-320 - Approval of Terms of Reference - Committee of Adjustment and Property Standards Appeal CommitteeStaff Report r NJ :R Corporate Services Department www.kitchener.ca REPORT TO: Finance and Corporate Services Committee DATE OF MEETING: August 14, 2023 SUBMITTED BY: Amanda Fusco, Director Legislated Services/City Clerk, 519-741-2200 ext. 7809 PREPARED BY: Dianna Saunderson, Manager, Council and Committee Services / Deputy Clerk, 519-741-2200 ext. 7278 WARD(S) INVOLVED: N/A DATE OF REPORT: July 15, 2023 REPORT NO.: COR -2023-320 SUBJECT: Approval of Terms of Reference - Committee of Adjustment and Property Standards Appeal Committee RECOMMENDATION: That the Terms of Reference for the Committee of Adjustment attached as Appendix `A' to Corporate Services Department report COR -2023-320 be approved; and, That the Terms of Reference for the Property Standards Appeal Committee attached as Appendix `B' to Corporate Services Department report COR -2023-320 be approved; and further, That the Clerk be directed to include the approved Terms of References into the City's Policy manual and number them sequentially as per the existing number sequence. REPORT HIGHLIGHTS: The purpose of this report is to establish a Terms of Reference for Committee of Adjustment and Property Standards Committee. The purpose of the Terms of Reference is to provide greater transparency, accountability and guidance to the operational processes and procedures related to the Committees. This report supports the delivery of core services. BACKGROUND: The City currently has four Quasi -Judicial Committees/Tribunals, two that meet regularly which include the Committee of Adjustment and Property Standards Appeal Committee and two that meet infrequently which include the Licensing Appeal Tribunal and Dog Designation Appeal Committee. All four Quasi -Judicial Committees render decisions based on various legislations, including but not limited to, the Statutory Powers of Procedure Act, the Planning Act, the Building Code and the Municipal Act. The term "quasi-judicial tribunal" refers to a body created by law with a mandate to settle matters in an impartial manner by applying rules of law without regard *** This information is available in accessible formats upon request. *** Please call 519-741-2345 or TTY 1-866-969-9994 for assistance. Page 4 of 122 for expediency or administrative policy. The Committee of Adjustment and Property Standards Committees render decisions on applications or appeals received based on regulations outlined in the Planning Act and Building Code Act, using the regulated guidance for hearing procedures as outlined in the Statutory Powers of Procedure Act. Both the Committee of Adjustment and Property Standards Committee are long-standing committees that have operated relatively successfully for numerous years under the support and guidance of staff in Legislated Services, Legal, Planning, Transportation Services and By-law Enforcement but would benefit from greater transparency and accountability from an approved Terms of Reference. The Terms of References are intended to confirm and define Committee procedures, provide clear expectations for the recruitment and qualification of its' members and to ensure all members of the Committees are captured clearly under the City's Code of Conduct. REPORT: Committee of Adjustment: The Committee of Adjustment (the `Committee') is an administrative, statutory tribunal which derives its jurisdiction and authority from the Planning Act, R.S.O. 1990, c. P.13 (the `Planning Act'), which enables City Council to establish one. Specifically, the Committee of Adjustment is intended to hold public hearings for the purposes of considering and making decisions with respect to: • Minor Variances from the provisions of the Zoning By-law; • Permissions, which include with enlargements or extensions of a structure that may be legally non -conforming, or a change in non -conforming use; • Consents; and • Leases in excess of 21 years, Validation of Title and Power of Sale. The City of Kitchener Committee of Adjustment considers upwards to 250 applications annually, with no limit to the number of applications that can be considered monthly. Failure to appoint resident members to Committee of Adjustment would default consideration of the applications to Council. The Committee's composition is 5 members who are scheduled to attend every meeting with the current term being approved for two years ending November 14, 2024. It should be noted that staff have always continued to review best practises with regards to the Committee and have amended procedures as necessary to make the Committee more effective and accountable, within the prescribed legislation. Some of the changes over past years include but are not limited to: • amending the rotation schedule to have 5 members attend all meetings rather than 3; • including Committee of Adjustment applications on the City's Open Data portal making information more accessible to the public; • amending meeting procedures to have staff present a summary of each application and an overview of the staff recommendation prior to the Committee's consideration; • providing notice to the applications through the newspaper, the website (multiple locations), mailed notices and signs on subject properties; • providing specific application details on an updated lawn sign (launching Q3 2023); and, • Iivestreaming the meetings to make them more accessible to the public. Page 5 of 122 The Committee of Adjustment is regulated by the Planning Act and the Statutory Powers of Procedure Act, where applicants and interested parties to the applications are to be provided the opportunity for a fair hearing and the Committee is then diligent in their consideration of the application(s) in accordance with the requirements of the Planning Act. The Committee is provided training on the regulations outlined in the Act prior to their term on the Committee and are provided additional training throughout the term as required. For each Committee meeting Planning Staff provide detailed reports outlining the policies and regulations associated with each application, including a recommendation on whether the application(s) should be approved or refused. Planning Staff and Transportation Staff are in attendance to help present the applications, the staff recommendation and respond to questions from the Committee to assist members in rendering their decisions. As a result of the approval and implementation of Bill 23, More Homes Built Faster Act 2022, unlike Zoning By-law Amendments and Official Plan Amendments, Committee of Adjustment decisions are appealable by specified people only, to the Ontario Land Tribunal. Previously, appeal rights were not limited to a specified person. The data below details the number of applications considered by the Committee and the number of instances where an appeal has been received. Minor Variances Applications Considered Appeals Received 2016 134 0 2017 126 0 2018 136 2 2019 134 1 2020 105 1 2021 144 1 2022 144 1 2023* as of 05-2023 62 2 Consent Applications Considered Appeals Received 2016 120 1 2017 49 0 2018 127 1 2019 77 1 2020 48 0 2021 67 3 2022 60 0 2023* as of 05-2023 20 1 *The Minor Variance Appeals received in 2023, the Planning Department recommended refusal of the applications and the Committee supported the staff recommendation. Property Standards Committee: The Property Standards Committee is appointed by Council pursuant to the provisions of the Building Code Act to deal with matters related to the municipality's Property Standards By -Law. Specifically, the Property Standards Committee hears appeals from property owners or occupants with respect to an order served by a Municipal Law Enforcement Officer in cases where the owner or occupant are dissatisfied with the terms and conditions of the order. The Committee has all the powers of the enforcement officer and may confirm the order, modify, or quash it, or may extend the time for compliance. The Property Standards Committee is regulated by the Building Code Act and the Statutory Powers of Procedure Act, where only those that are interested parties to the appeal, would be permitted to participate in the hearing. The Committee is responsible for providing a fair hearing and the Committee is then diligent in their consideration of the application(s) in accordance with the requirements of the Building Code Act. The Committee is provided training on the regulations outlined in the Act prior to their term on the Committee and are provided additional training throughout the term as required. Page 6 of 122 For each meeting By-law Enforcement staff and the Appellant are parties to the hearing process and provided the opportunity to present a case related to the Order to Comply and the property's compliance with the City's Property Standards By-law. As part of the hearing both the Appellant and Enforcement staff have the opportunity to provide summations including making a request to the Committee for their preferred decision. The Committee deliberates and renders a decision. Pending the situation, the Committee may seek advice from Legal Services prior to rendering a decision. The Property Standards Committee's decisions are appealable to Superior Court. A summary has been provided to highlight the number of appeals received, including a summary of the decisions that were appealed to Superior Court. Year Appeals Received Decision Appeal 2016 12 0 2017 12 0 2018 15 0 2019 12 0 2020 14 0 2021 15 0 2022 10 0 2023 as of 05-2023 4 0 General Comments The proposed Terms of References are intended formalize meeting expectations for members, staff, applicants, and interested parties to the hearings. They are intended to provide a clear understanding related meeting format and the members responsibilities when rendering a decision. They also address an identified gap that ties the members to the City's Code of Conduct and provide further guidance related to perceived bias, and options afforded to them when considering applications or appeals, as the decisions rendered by the Committee are judicial in nature. It is important to note similar to Council, staff would not be in a position to provide advice on potential conflicts, as the responsibility would rely solely with the individual member(s). Establishing a Terms of Reference for the two Committees would provide for greater accountability and transparency and is a general best practice. The Licensing Appeal Tribunal and Dog Designation Appeal Committee are not being recommended for a Terms of Reference through this report. Staff are still reviewing options related to those Committees and intend on reporting back through a future report to address those hearings through a different procedure. STRATEGIC PLAN ALIGNMENT: This report supports the delivery of core services. FINANCIAL IMPLICATIONS: Capital Budget — The recommendation has no impact on the Capital Budget. Operating Budget — The recommendation has no impact on the Operating Budget. COMMUNITY ENGAGEMENT: Page 7 of 122 INFORM — This report has been posted to the City's website with the agenda in advance of the council / committee meeting. PREVIOUS REPORTS/AUTHORITIES: • Municipal Act, 2001 • Planning Act • Statutory Powers of Procedure Act • Building Code Act APPROVED BY: Must be the CAO or a General Manager ATTACHMENTS: Attachment A - Terms of Reference Committee of Adjustment Attachment B - Terms of Reference Property Standards Appeal Committee Page 8 of 122 I POLICY Policy No: Click here to enter text. K�rcFrrati�R Policy Title: COMMITTEE OF Approval Date: 'lick here to enter a ADJUSTMENT - TERMS OF REFERENCE Reviewed Date: Click here to enter Policy Type: COUNCIL Next Review Date- '..'lick here to enter Category: Governance Sub -Category: Board & Committee Reviewed Date: Click here to enter Author: D. Saunderson, M. Mills A* Last Amended: Click here to enter a Dept/Div: Corporate Services/Legislated Services/Council/Committee Services - Replaces: Click here to enter text. Repealed: Click here to enter a date. Replaced by. Click here to enter text. Related Policies, Procedures and/or Guidelines: Appointments to Boards & Committees Policy - GOV-BOA-063 Municipal Act t Municipal Conflict of Interest Act Planning Act 1. POLICY PURPOSE: The purpose of the Policy is to establish the Terms of Reference for the Committee of Adjustment. The Committee of Adjustment considers applications for minor variance to the City's zoning requirements, and provisional consent applications as per the authority granted under the under the Planning Act. 2. DEFINITIONS: 1 of 12 Chair: The Chair moves forward business outlined on the meeting agenda, ensures decorum is maintained at meetings, and the rules of procedure and conduct are observed. Vice -Chair: The Vice -Chair acts in the absence of the Chair and assumes the roles and responsibilities of the Chair. Page 9 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE Secretary -Treasurer: The Secretary -Treasurer is a staff member appointed by the Committee and is a non-voting member. They provide administrative support to the Committee as legislated by the Planning Act and, procedural advice within hearings. In the absence of the Secretary Treasurer, an Acting Secretary Treasurer appointed by the Committee will act in their place. Planning Coordinator: The Planning Coordinator is a staff member of the Development Services Division. They provide planning advice and attend meetings to assist the Committee in reaching decisions. Transportation Representative: The Transportation Representative is a staff member of the Development Services Division. They provide advice related to traffic and transportation planning and attend meetings to assist the Committee in reaching decisions. Quorum: Section 44(5) of the Planning Act, as amended, governs the number of members that constitute a quorum, which is the minimum number of Committee members that must be in attendance in order to conduct hearings. 3. SCOPE: 4. POLICY CONTENT: 4.1. Purpose of the Committee The Committee of Adjustment is a statutory tribunal with authority delegated to it by the Council of the City of Kitchener under the provisions of the Planning Act to hold public hearings to make decisions on applications submitted to the City for minor variances, changes in legal non -conforming uses, consents for severances, long-term leases and other decisions as prescribed by the Planning Act. 2of12 Page 10 of 122 POLICY APPLIES TO THE FOLLOWING: ❑ All Employees ❑ All Full -Time Employees ❑ All Union ❑ Management ❑ C. U. P. E. 68 Civic ❑ Non Union ❑ C. U.P.E. 68 Mechanics ❑ Temporary ❑ C. U. P. E. 791 ❑ Student ❑ I. B.E.W. 636 ❑ Part -Time Employees ❑ K. P. F. F. A. ❑ Specified Positions only: ❑ Other: ❑ Council ® Local Boards & Advisory Committees 4. POLICY CONTENT: 4.1. Purpose of the Committee The Committee of Adjustment is a statutory tribunal with authority delegated to it by the Council of the City of Kitchener under the provisions of the Planning Act to hold public hearings to make decisions on applications submitted to the City for minor variances, changes in legal non -conforming uses, consents for severances, long-term leases and other decisions as prescribed by the Planning Act. 2of12 Page 10 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE The Committee operates independently from Council and its decisions may be appealed to the Ontario Land Tribunal (OLT). The Committee's powers with respect to rendering decisions are contained in Section 45 and Section 53 of the Planning Act. 4.2. Roles and Responsibilities The Committee of Adjustment may: • Authorize minor variances from the provisions of the Zoning By -Law for land, buildings or structures or their use; • Permit the enlargement or extension of an existing legal non -conforming building or structure; • Permit the use of land, building or structure for a purpose that is similar to the existing legal non -conforming use or is more compatible with the uses permitted by the Zoning By -Law; and, • Give consent to convey or divide land when a plan of subdivision is not necessary, consent to grant an easement or right-of-way, consent to mortgage or charge land or grant an interest in land for 21 years or more, for example by long-term lease or agreements and consent to validate title. • Perform any further duties as required by the Planning Act or other applicable law. 4.3. Governance The Committee of Adjustment is governed by procedures detailed in the Planning Act, the Municipal Act, the Statutory Powers Procedure Act, the Municipal Conflict of Interest Act, the City's Code of Conduct, and any other legislation, by-law, or City policy which may be applicable from time -to -time. The Committee of Adjustment is guided by planning policies and controls established by the Council of the City of Kitchener through the Official Plan, Zoning By-law(s) and other by-laws for controlling development, the Regional Official Policies Plan of the Region of Waterloo and planning policies and legislation of the Province of Ontario, including the Planning Act, statements of Provincial interest as defined in policy statements, implementation guidelines and Provincial plans. 5. GENERAL 5.1. Committee Composition The Committee of Adjustment is composed of 5 representatives appointed by Council. A Chair and Vice -Chair will be elected from the Committee on an annual basis for the following year. 3of12 Page 11 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE 5.2 Member Qualifications Consideration to the following criteria will be given for appointments to the Committee of Adjustment: • Will comply with the criteria outlined in Council Policy GOV-BOA-063 (Appointment to Boards & Committees); • Availability to attend meetings shall also be considered; • Demonstrated background and knowledge related to the function of the Committee of Adjustment; • Knowledge and understanding of the land use planning process including minor variance and consent process; • Ensuring a balance between experience and new membership; • Knowledge in one or more areas: law, planning, architecture, government, engineering, real estate, economic development, community development or land development; • Demonstrated decision-making, communication, and mediation skills to facilitate an open and fair hearing process. 5.3. Term of Appointment The Committee shall serve for a four-year term or, another term determined by the Council that appointed them and, they shall remain members of the Committee until their successors are appointed. Where a member ceases to be a member before the expiration of their term, Council will appoint another person for the unexpired term. 5.4. Remuneration Committee members shall be compensated $100 for every meeting they attend, and the Chair will be compensated $125 for every meeting. Honorariums will be paid bi-annually, and will not be subject to income tax deductions by the City. 5.5. Code of Conduct The Committee of Adjustment shall comply with any applicable legislation and regulations under the Planning Act and Statutory Powers of Procedure Act and shall abide by the Code of Conduct adopted by Council. 5.6 Conflict of Interest The Municipal Conflict of Interest Act outlines a primary set of ethical rules for Council, Committee and local board members. These rules apply if members have a pecuniary (financial) interest in a matter that is before them at a meeting. The legislation requires a member with a pecuniary interest to: 4of12 • disclose the interest and its general nature before the matter is considered at the meeting; Page 12 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE • complete any required form (s) to necessary by the municipal conflict of interest act; • not take part in the discussion or voting on any question in respect of the matter; • not attempt to influence the voting, during or after the meeting; and • immediately leave the meeting if the meeting is closed to the public. Regarding procedural fairness, members of the Committee of Adjustment should consider taking the above -noted steps where they believe they have an actual bias or where a reasonable apprehension of bias may exist which could impact their ability to decide fairly on a particular matter before them at a meeting. In determining whether there is a reasonable apprehension of bias, the member should consider whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the member, whether consciously or not, would not decide the matter fairly. 5.7 Resources to the Committee The Secretary -Treasurer is a City of Kitchener staff member appointed by the Committee and is a non-voting member. They provide administrative support to the Committee as legislated by the Planning Act and, procedural advice within hearings. In the absence of the Secretary Treasurer, an Acting Secretary Treasurer appointed by the Committee will act in their place. 5of12 The Secretary -Treasurer will provide or arrange for the provision of orientation and training to Committee members following their appointments relating to the role of the Committee of Adjustment, the applicable provincial and regional policy framework, the Planning Act and related jurisprudence, the City's Official Plan, Zoning By-law(s) and related policies and procedures. The Secretary -Treasurer will arrange for additional training and educational sessions for the Committee or individual members as required or requested by the Committee or a member of the Committee. The Planning Coordinator and Transportation Representative provide subject matter information and attend meetings to assist the Committee in reaching decisions. The Committee may obtain legal advice from the City's Legal Services Division on their ability to dispense of their decisions. Page 13 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE 6. Hearings: 6.1. Conduct of Hearings The Committee of Adjustment shall adhere to City policies and procedures, the Statutory Powers Procedure Act, Municipal Conflict of Interest Act and Planning Act and use the guidance of the Procedural By-law to ensure a fair and unbiased hearing. Where the above noted laws and policies do not speak to an issue, Robert's Rules of Order will be the default guide for meeting procedures. The Committee of Adjustment Committee shall provide and conduct fair hearings by: • Allowing anyone wishing to speak to an application an opportunity to do so; • Giving due diligence to the consideration of each application; • Openly having all discussions about each application and making all decisions in public at the hearing; • Reviewing the application and its merits, Regional and Agency comments, Planning Staff's report and recommendation; and, rendering decisions on applications, in accordance with the requirements of the Planning Act; • The Planning Coordinator and Transportation Representative will attend the meeting to provide subject matter information within their professional ethics on questions arising from the Committee and Delegations. • Making rational decisions with appropriate, well -thought-out conditions; and, ■ Each member including the Chair clearly identifying support or opposition when voting; and, ■ Clearly stating the reasons for their decisions. 6.2. Meeting Schedule and Location The Committee of Adjustment shall meet once a month in the Council Chamber unless otherwise advertised. The Secretary -Treasurer shall prepare a schedule of hearings on an annual basis which will be advertised on the City's website. Generally, the meetings are held on the third Tuesday of the month. The date, time, and location of meetings can be modified at the discretion of the Secretary - Treasurer and Planning Coordinator. Notice of any modified meeting details shall be published on the City's website. 6.3. Open Meetings All meetings shall be open to the public save and except reasons outlined under the Section 239 of the Municipal Act, as amended. No person shall be excluded from meetings except for improper conduct, as defined in Chapter 25 of the City of Kitchener Procedural By-law. 6of12 Page 14 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE 6.4. Quorum Section 44(5) of the Planning Act, as amended, governs the number of members that constitute a quorum. At the time of this policy, three members shall constitute a quorum. All members are requested to attend every scheduled meeting. Members of Committee shall notify the Secretary -Treasurer when they will be absent from any meeting. 6.5. Voting Every Committee of Adjustment member is required to vote, including the Chair. Those members who are present at a Committee meeting when a decision is rendered shall vote by show of hands, except where they are disqualified from voting by reason of a pecuniary interest or is absent from the meeting during the vote. Any member who refuses to vote will be recorded as voting in the negative (opposed). In the event of equality of votes, the motion being voted on is deemed to be lost. 6.6 Hearing Procedures Where possible, the hearing procedure should abide by the following: • The Chair shall call the meeting to order; • Minutes of the Previous Hearing shall be adopted; • Committee members shall declare any pecuniary interests that they may have in applications before the Committee, and the provisions of the Municipal Conflict Interest Act shall apply. o If a conflict of interest is declared, the member shall leave the meeting room for the duration of the hearing of the application and until a decision is rendered. o In determining whether there is a reasonable apprehension of bias, the Committee member should consider whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the member, whether consciously or not, would not decide the matter fairly. o Where members of the Committee believe they have an actual bias or a reasonable apprehension of bias which could impact their ability to decide fairly on a particular matter before them at a meeting, members should consider taking the steps outlined under "Conflict of Interest." • The Chair shall welcome those in attendance and provide an explanation of the procedures: o The Planning Coordinator shall introduce the application for Committee consideration, and the Staff Recommendation outlined in 7of12 Page 15 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE the Staff report, which is posted on the City of Kitchener website the Friday prior to the meeting. o Everyone having an interest(s)/concern(s) with respect to an application(s) shall be given an opportunity to comment on the applications being heard; o Members of the Public shall be encouraged not to: ■ speak disrespectfully of any person; ■ use offensive words; ■ disobey the decision of the Chair or Committee; and, ■ enter into cross debate with other persons present, City staff, Members, or the Chair. o Members of the public providing oral submissions to the Committee shall be encouraged to provide succinct and relevant comments on the subject application within a maximum of five -minutes. o Comments and questions of the applicant/agent, members of the Public or Planning Coordinator are to be addressed through the Chair; o Committee members shall bring forward a motion to approve, refuse or defer the application. Motions must be seconded by a Committee member. Following discussion and consideration of the motion on the floor, the Committee shall vote upon the motion; o Decisions shall be communicated verbally in the meeting and notice of the decision shall be sent to the anyone who expressed interest in the subject application; • Reminder of the Planning Act appeal period and Section 45 (12) of the Planning Act which permits only the applicant, Minister, specified person or public body to appeal Committee decisions; • Discussion and Decisions on the application, including addressing requests for deferrals and adjournments; and, • Adjournment of the meeting. Staff reserve the right to amend hearing procedures as they are administrative in nature and are required to reflect legislative changes. Please see Appendix `A', Administrative Hearing Procedures for comprehensive hearing procedures for the Committee of Adjustment. 6.7 Notice of Decision 8of12 In accordance with Section 45 and Section 53 of the Planning Act, decisions of the Committee regarding minor variance and consent applications will be issued no more than 10 days following the hearing or as otherwise specified by the Planning Act. Page 16 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE The decision of the Committee can be appealed to the Ontario Land Tribunal (OLT). 7. HISTORY OF POLICY CHANGES None at this time. 9of12 Page 17 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE Appendix A Committee of Adjustment Administrative Hearing Procedures Where possible, the Committee of Adjustment hearing procedures will abide by this document. Staff reserve the right to amend hearing procedures as they are administrative in nature and are required to reflect legislative changes. START OF THE MEETING The Chair shall call the meeting to order. The Chair shall advise: "This meeting of the Committee of Adjustment is being called to hear applications under the Planning Act for Minor Variance and/or Consent. This is a statutory public meeting, anyone having an interest in any of these applications may make oral or written submission for the Committee's consideration. The Committee will render a verbal decision this date and the Agent/Applicant will receive a copy of the Committee's decision in writing by email 10 days after the meeting." The minutes of the Previous Hearing shall be adopted. The Chair shall advise Committee Members to declare any pecuniary interests that they may have in applications before the Committee, and the provisions of the Municipal Conflict Interest Act shall apply. • If a conflict of interest is declared, the member shall leave the meeting room for the duration of the hearing of the application and until a decision is rendered. • In determining whether there is a reasonable apprehension of bias, the Committee member should consider whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the member, whether consciously or not, would not decide the matter fairly. Where members of the Committee believe they have an actual bias or a reasonable apprehension of bias which could impact their ability to decide fairly on a particular matter before them at a meeting, members should consider taking the steps outlined under "Conflict of Interest." 10 of 12 Page 18 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE THE HEARING PROCESS The Chair shall review the Committee's powers & ability to render a decision and the hearing process: COMMITTEE'S POWERS & ABILITY TO RENDER A DECISION The Chair shall advise that the Committee has the authority to do 1 of 3 things: 1. Approve the Application (the Committee may add, remove or amend conditions for approval) 2. Reject the Application 3. Defer the application/Committee decision to a later meeting The Agent/Applicant will receive the Committee's decision in writing 10 days after the meeting. PROCESS FOR HANDLING EACH APPLICATION: i) The Planning Coordinator shall introduce the application for Committee consideration, and the Staff Recommendation outlined in the Staff report, which is posted on the City of Kitchener website the Friday prior to the meeting. ii) Everyone having an interest(s)/concern(s) with respect to an application(s) shall be given an opportunity to comment on the applications being heard; iii) Members of the Public shall be encouraged not to: o speak disrespectfully of any person; o use offensive words; o disobey the decision of the Chair or Committee; and, o enter into cross debate with other persons present, City staff, Members, or the Chair. iv) Members of the public providing oral submissions to the Committee shall be encouraged to provide succinct and relevant comments on the subject application within a maximum of five -minutes. v) Comments and questions of the applicant/agent, members of the Public or Planning Coordinator are to be addressed through the Chair; vi) Committee members shall bring forward a motion to approve, refuse or defer the application. Motions must be seconded by a Committee member. Following discussion and consideration of the motion on the floor, the Committee shall vote upon the motion; vii) Decisions shall be communicated verbally in the meeting and notice of the decision shall be sent to the anyone who expressed interest in the subject application; 11 of 12 Page 19 of 122 Policy No: Policy Title: COMMITTEE OF ADJUSTMENT - TERMS OF REFERENCE viii) Reminder of the Planning Act appeal period and Section 45 (12) of the Planning Act which permits only the applicant, Minister, specified person or public body to appeal Committee decisions; ix) Discussion and Decisions on the application, including addressing requests for deferrals and adjournments AJOURNMENT OF THE MEETING The Chair shall request a motion to adjourn the meeting. 12 of 12 Page 20 of 122 l POLICY Policy No: Click here to enter text. KIT u\]R Policy Title: PROPERTY STANDARDS Approval Date: ;lick here to enter a dac. APPEAL COMMITTEE — TERMS OF REFERENCE Reviewed Date 3lick here to enter text. Policy Type: COUNCIL Next Review Date- :Mick here to enter text. Reviewed Date: ✓lick here to enter text. Category: Governance Sub -Category: Board & Committee Amended: Click here to enter a date. Author: M. Blake Replaces: Click here to enter text. Dept/Div: Corporate Services/Legislative Repealed: Click here to enter a date. Services/Council/Committee Replaced by: Click here to enter text. Services Related Policies, Procedures and/or Guidelines: Appointments to Boards & Committees Policy - GOV-BOA-063 Municipal Act Municipal Conflict of Interest Act OBC SPPA 1. POLICY PURPOSE: The purpose of the Policy is to establish the Terms of Reference for the Property Standards Committee. The Property Standards Committee hears appeals of orders issued by City Property Standards Officers for violations of certain Ontario Building Code and municipal by-law standards for residential, multi -residential and commercial properties. 2. DEFINITIONS: Agent: An individual authorized prior to the hearing, by signature of the property owner/occupant to address the Kitchener Property Standards Appeal Committee on behalf of the subject property. of Page 21 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE Appellant: A property owner that has been served with an Order to Comply and who has submitted a Notice of Appeal to the Committee Secretary within the fourteen (14) days of being served with the Order. By -Law Enforcement Officer: By-law Enforcement Officers are City Staff responsible for the property standards enforcement process, such as requirements to issue a Property Standards Order, service of the Order, and ensuring the Order has been complied with. Responding By-law Enforcement Officers attend Committee meetings as the Respondent to provide evidence. Chair: The Chair moves forward business outlined on the meeting agenda, ensures decorum is maintained at meetings, and the rules of procedure and conduct are observed. Secretary Treasurer: The Secretary Treasurer is a staff member appointed by the Committee and is a non-voting member. They provide administrative support to the Committee, and procedural advice within hearings. Vice Chair: The Vice Chair acts in the absence of the Chair and assumes the roles and responsibilities of the Chair. Quorum: The minimum number of Committee members that must be in attendance to conduct hearings. 3. SCOPE: ❑ Council I ❑x Local Boards & Advisory Committees of Page 22 of 122 POLICY APPLIES TO THE FOLLOWING: ❑x All Employees ❑ Management ❑ Permanent Full -Time Employees ❑ Permanent Full -Time Non Union ❑ Permanent Full -Time C.U.P.E. 791 ❑ Temporary ❑ Part -Time Non -Union ❑x Student ❑ Permanent Full -Time Union ❑ Continuous Part -Time Employees ❑ Part -Time Employees ❑ Continuous Part -Time Non -Union ❑ Continuous Part -Time Union ❑ Specified Positions only: ❑ Other: ❑ Council I ❑x Local Boards & Advisory Committees of Page 22 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE 4. POLICY CONTENT: 4.1. Purpose of the Committee The Property Standards Appeal Committee hears the appeal of any owner or occupant who has been served with an Order issued under the Kitchener Municipal Code Chapter 665 (Standards of Maintenance and Occupancy of Property) and who is not satisfied with the terms or conditions of the Order. 4.2. Roles and Responsibilities The Committee's powers with respect to rendering a decision are contained in section 15.3(3) of the Building Code Act and Municipal Code Chapter 665. The Property Standards Appeal Committee may: • Confirm (uphold) the Order as it currently stands, • Rescind the Order, • Modify the Order (some items may have been completed while others remain outstanding); or, • Grant an extension of time to comply with the Order. (In contemplating this decision, the Committee must be of the opinion that the general intent of the Municipal Code Chapter 665 is being maintained). 4.3. Governance The Property Standards Appeal Committee shall adhere to the City policies and procedures, the Statutory Powers Procedure Act, Municipal Conflict of Interest Act, Kitchener Municipal Code Chapter 665, the Municipal Freedom of Information and Protection Act, and the Building Code Act sections 15, 16 & 18. The Committee shall use the guidance of Chapter 25 (Procedure) of the City of Kitchener Municipal Code to ensure a fair and unbiased hearing. 5. GENERAL: 5.1. Committee Composition The Property Standards Appeal Committee shall be comprised of a minimum of three (3) members, as per Section 15.6 of the Building Code Act. A Chair and Vice Chairwill be elected from the Committee on an annual basis forthe following year. 5.2. Member Qualifications Consideration to the following criteria will be given for appointments to the Property Standards Committee: • Will comply with the criteria outlined in Council Policy GOV-BOA-063 (Appointment to Boards & Committees); of Page 23 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE • Demonstrated interest, academic qualification, work experience, knowledge or professional expertise. • Availability to attend meetings shall also be considered; • Knowledge and/or understanding of the Building Code Act would be considered an asset; • Ensuring a balance between experience and new membership; • Knowledge in one or more areas: legal tribunal governance, land use, real estate, law, construction, development, municipal policy. • Demonstrated decision-making, communication, and mediation skills to facilitate an open and fair hearing process. 5.3. Term of Appointment The Committee shall serve for a two-year term or, another term determined by the Council that appointed them and, they shall remain members of the Committee until their successors are appointed. Where a member ceases to be a member before the expiration of their term, Council will appoint another person for the unexpired term. 5.4. Renumeration Committee members shall be compensated $75 for each meeting they attend. Honorariums will be paid following participation in each Property Standards Appeal Committee meeting and will not be subject to income tax deductions by the City. 5.5. Code of Conduct The Property Standards Appeal Committee members shall comply with any applicable legislation and regulations under the Statutory Powers of Procedure Act and shall abide by the Code of Conduct adopted by Council. 5.6. Conflict of Interest The Municipal Conflict of Interest Act sets out a primary set of ethical rules for Council, Committee and local board members. These rules apply if members have a pecuniary (financial) interest in a matter that is before them at a meeting. The legislation requires a member with a pecuniary interest to: • disclose the interest and its general nature before the matter is considered at the meeting; • complete any required form (s) to necessary by the municipal conflict of interest act; • not take part in the discussion or voting on any question in respect of the matter; • not attempt to influence the voting, during or after the meeting; and • immediately leave the meeting, if the meeting is closed to the public. 4 of 10 Page 24 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE Regarding procedural fairness, members of the Property Standards Appeal Committee should consider taking the above -noted steps where they believe they have an actual bias or where a reasonable apprehension of bias may exist which could impact their ability to decide fairly on a particular matter before them at a meeting. In determining whether there is a reasonable apprehension of bias, the member should consider whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the member, whether consciously or not, would not decide the matter fairly. 5.7. Resources to the Committee The Secretary -Treasurer is a City of Kitchener staff member appointed by the Committee and is a non-voting member. They provide administrative support to the Committee and, procedural advice within hearings. In the absence of the Secretary Treasurer, an Acting Secretary Treasurer appointed by the Committee will act in their place. The Secretary Treasurer will provide or arrange for the provision of orientation and training to Committee members following their appointments relating to the role of the Property Standards Appeal Committee, the Kitchener Municipal Code Chapter 665, and the Building Code Act sections 15, 16 & 18, and related policies and procedures. The Secretary Treasurer will arrange for additional training and educational sessions for the Committee or individual members as required or requested by the Committee or a member of the Committee. The City of Kitchener Legal Staff are available to provide subject matter information related to the Kitchener Municipal Code Chapter 665 and the Building Code Act sections 15, 16 & 18 upon request, should the Committee choose to recess, deliberate and consult a lawyer. 6. Hearings 6.1. Conduct of Hearings The Property Standards Committee shall adhere to City policies and procedures, the Statutory Powers Procedure Act, Municipal Conflict of Interest Act, certain Ontario Building Code and municipal bylaw standards and use the guidance of the Procedural By-law to ensure a fair and unbiased hearing. Where the above noted laws and policies do not speak to an issue, Robert's Rules of Order will be the default guide for meeting procedures. of Page 25 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE The Property Standards Committee shall provide and conduct fair hearings by: • Allowing both the Appellant and Respondents and their witnesses as necessary, speak to an appeal; • Giving due diligence to the consideration of each appeal; • Reviewing the merits of the appeal, the documentation and evidence put forward and, rendering decisions on applications, in accordance with the requirements of the municipal by-law standards. • Making rational decisions with appropriate, well -thought-out conditions; and, ■ Each member including the Chair clearly identifying support or opposition when voting; and, ■ Clearly stating the reasons for their decisions. 6.2. Meeting Schedule and Location The Property Standards Committee shall meet once a month in the Council Chamber unless otherwise advertised, pending receipt of an appeal to an Order to Comply. The Secretary shall prepare a schedule of hearings on an annual basis which will be advertised on the City's website. Generally, the meetings are held on the last Wednesday of the month. The date, time, and location of meetings can be modified at the discretion of the Secretary to the Committee and the Director of Enforcement or designate. Notice of any modified meeting details shall be published on the City's website. 6.3. Notice of Hearing Upon receipt of the `Order to Comply', the property owner must file an appeal using the prescribed Property Standards Notice of Appeal form to Legislated Services within fourteen (14) working days from the date they receive the Order to Comply from the Enforcement Officer. The responding Enforcement Officer and the Director of Enforcement shall be informed of this appeal via email by the Secretary Treasurer. The Secretary Treasurer shall endeavour to schedule a Property Standards Appeal Committee hearing within 45 working days of the Clerk's receipt of the request for an appeal hearing or as soon thereafter as possible. Notice of the Hearing shall be issued a minimum of 14 days prior to the hearing. Notice can be issued less than 14 days prior to the hearing at the discretion of the property owner, Secretary -Treasurer and Director of Enforcement. 6.4. Open Meetings All Property Standards Appeal Committee meetings shall be open to the public in accordance with the City of Kitchener's Procedural By-law and the Municipal Act. After all submissions have been made, the Committee may retire to another 6 of 10 Page 26 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE room to deliberate before rendering its decision as outlined under the Statutory Powers of Procedure Act. 6.5. Quorum Quorum for the Property Standards Appeal Committee is the minimum number of Committee members that must be in attendance to conduct hearings. At the time of this policy, two members shall constitute a quorum. All members are requested to attend every meeting, according to the schedule. Members of Committee shall notify the Secretary -Treasurer when they will be absent from any meeting. 6.6. Voting Every Property Standards Appeal Committee member is required to vote, including the Chair. Those members who are present at a Committee Meeting when a decision is rendered shall vote by show of hands, except where they are disqualified from voting by reason of a pecuniary interest or is absent from the meeting during the vote. Any member who refuses to vote will be recorded as voting in the negative (opposed). In the event of equality of votes, the motion being voted on is deemed to be lost. 6.7. Hearing Procedures Where possible, the hearing procedure should abide by the following: • The Chair shall call the meeting to order; • Adoption of Minutes Previous Hearing; • Committee Members shall declare any pecuniary interests that they may have in applications before the Committee, and the provisions of the Municipal Conflict Interest Act shall apply. o If a conflict of interest is declared, it is suggested that the member leave the meeting room for the duration of the hearing of the application and until a decision is rendered. • Chair welcomes those in attendance and provides and explanation of the procedures: o The City of Kitchener Enforcement Staff and their representatives shall be given the opportunity to present their evidence; o The Appellant and their representatives shall be given the opportunity to present their evidence; o Comments and questions are to be addressed through the Chair; o All those in attendance at the meeting shall be encouraged not to: ■ speak disrespectfully of any person; ■ use offensive words; ■ disobey the decision of the Chair or Committee; and, ■ enter into cross debate with other persons present, City staff, Members, or the Chair. of Page 27 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE o The City of Kitchener Enforcement Staff, Appellant and their representatives shall be given the opportunity to present their evidence. o Members of the Committee may retire, if necessary, to deliberate on the matter before them prior to rendering a decision; o Members will render the decision verbally in the meeting; • In the event the Committee needs more time to consider its decision, the Committee can reserve their decision, whereby the decision would be communicated to staff and the appellant in writing through the issuance of a Notice of Decision. However, if possible, it is preferable for the Committee to render its decision on the date of the hearing while the parties are present. o Adjournment of the meeting. Staff reserve the right to amend hearing procedures as they are administrative in nature and are required to reflect legislative changes. Please see appendix `A', Administrative Hearing Procedures for comprehensive hearing procedures for the Property Standards Appeal Committee. 6.8. Notice of Decision The Secretary Treasurer will endeavor to notify the Appellant, in writing of the Committee's decision within five (5) working days. City of Kitchener Enforcement Staff shall also receive a copy of the decision. The decision of the Committee can be appealed by the City or the Appellant to the Superior Court of Justice within 14 days of the decision being issued. Such an appeal would be heard by a Judge who has the same powers as the Committee in rendering a decision. 7. HISTORY OF POLICY CHANGES None at this time. of Page 28 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE Appendix A Property Standards Appeal Committee Administrative Hearing Procedures Where possible, the Property Standards Appeal Committee hearing procedures will abide by this document. Staff reserve the right to amend hearing procedures as they are administrative in nature and are required to reflect legislative changes. START OF THE MEETING The Chair shall advise: "This meeting of the Property Standards Committee is being called to consider appeals of `Orders to Comply' issued by the City of Kitchener's Enforcement staff pursuant to Chapter 665 of the City of Kitchener Municipal Code, the Building Code Act and the Statutory Powers Procedure Act. " The Chair shall introduce themself, Committee members and the Committee Administrator. The Chair shall advise Committee Members to declare any pecuniary interests that they may have in applications before the Committee, and the provisions of the Municipal Conflict Interest Act shall apply. • If a conflict of interest is declared, the member shall leave the meeting room for the duration of the hearing of the application and until a decision is rendered. In determining whether there is a reasonable apprehension of bias, the Committee member should consider whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the member, whether consciously or not, would not decide the matter fairly. Where members of the Committee believe they have an actual bias or a reasonable apprehension of bias which could impact their ability to decide fairly on a particular matter before them at a meeting, members should consider taking the steps outlined under "Conflict of Interest." THE APPEAL(S) THAT WILL BE HEARD / INTRODUCTIONS: 1. Appeal #2023-01 - Street address - Officer name - Reason 2. Appeal #2023-02 - Street address - Officer name - Reason of ' Page 29 of 122 Policy No: Policy Title: PROPERTY STANDARDS APPEAL COMMITTEE — TERMS OF REFERENCE THE HEARING PROCESS The Chair shall read the following statement and review the hearing process: "The hearing is a formal process where those giving evidence will be required to make an affirmation as to the validity of their testimony, however, the Committee tries to conduct the hearing in a relaxed fashion." COMMITTEE'S POWERS & ABILITY TO RENDER A DECISION The Chair shall advise that the Committee has the authority to do 1 of 4 things: 1. Confirm (uphold) the Order as it currently stands; 2. Rescind the Order; 3. Modify the Order (e.g. some items may have been completed while others remain outstanding); or, 4. Grant an extension of time to comply with the Order. The Appellant will receive the Committee's decision in writing from the Committee Administrator. PROCESS FOR HANDLING EACH WITNESS: i) The Director/Supervisor of By-law Enforcement will introduce the matter; ii) The Committee Administrator will affirm the witnesses who will then give testimony; iii) The appellant can ask questions regarding the statements made; ■ Note that this is a time to ask questions only iv) The Committee members may ask questions of the City staff; v) The Appellant is then affirmed and gives testimony; vi) City staff can then ask questions regarding the testimony; vii) The Committee members then may ask questions of the appellant; viii) Both sides provide a summation; ix) The parties to the hearing are asked to wait outside the room while the Committee deliberates or, the Committee may retire to a different room; and, x) The Committee may give its decision today, or it will be provided in writing once they have finished deliberating. of Page 30 of 122