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HomeMy WebLinkAboutDTS-05-115 - Streamlining Improvements in Planning - Fence and Sign Variances - Heritage Permits j ~ Development & Technical Services ~ Report To: Date of Meeting: Submitted By: Prepared By: Ward(s) Involved: Date of Report: Report No.: Subject: Development & Technical Services Committee June 27, 2005 Jeff Willmer, Director of Planning, 741-2325 Jeff Willmer, Director of Planning 741-2325 and Janice Given, Project Manager, 741-2319 All June 20, 2005 DTS-05-115 Streamlining Improvements in Planning -Fence and Sign Variances -Heritage Permits RECOMMENDATION: 1. That DTS-05-115 be received for information. 2. That with respect to Council's delegation of sign and fence variances to staff or Committee of Adjustment, that no action be taken at this time. 3. That staff be directed to further explore the delegation of heritage matters and report back to Council by December, 2005. BACKGROUND: As Planning staff become aware of deficiencies or shortcomings in customer service we endeavour to remedy those by continuously improving the City's service delivery. REPORT: Committee of Adiustment Aoolications Update on Procedural Improvements Issues · Applications for Committee of Adjustment (Severance, Variance and Permission) were received and processed in the City Clerk's Office, whereas all other Planning & Development applications are received and processed in the Planning Division. . Customers often had to travel between the 5th or 6th floors and the 2nd floor when dealing with staff on potential applications to Committee of Adjustment. · Applications were sometimes submitted without any consultation with planning staff and require studies, reports or other development applications that the applicant should be aware of at the beginning of the process to avoid delays later on at the Committee; frequent deferrals resulted from this lack of early communication. Improvements Instituted · All applications for Committee of Adjustment are now received in the Planning Division · City Clerk's staff continue to be responsible for circulation and notification, taking minutes at the Committee of Adjustment meetings and issuing Notices of Decision and Final Approval In discussions between staff of the City Clerk's Office and the Planning Division, it became evident that there was an inefficiency and weakness in delivery of customer service when customers were informed by Building or Planning staff on the 5th and 6th floors that they require an application to Committee of Adjustment. While application forms have always been available on the 5th and 6th floors and were often completed there, they used to be submitted on the 2nd floor to the City Clerk. If the applications were incomplete or, as is often the case, an applicant is unfamiliar with the terminology, from time to time they were sent by 2nd floor staff to the 6th floor to speak with a Planner or Zoning Officer. This has been remedied by providing one-stop shopping from the time the need for an application is identified through the discussion to the completion and receipt of a complete application. This also provides a better opportunity for pre-consultation, if necessary, with planning staff to ensure that applications are not premature or to determine if other development applications may be required. The only resulting issue with these changes is a significant increase in administrative time spent in Planning without the addition of any resources. Sign and Fence Variances Issues · The review and approval process for Sign and Fence Variances through Committee of Adjustment with a recommendation to City Council is somewhat cumbersome and sometimes seen as a duplication of time. · It is questionable as to whether the consideration of sign and fence variances is the best use of Council's time in a public meeting. · Certain temporary, "special event" signs which are for the "public good" are forced to follow the same lengthy approval process for temporary, short term relief. Chapters 630 and 680 of the City's Municipal Code contain the Fence By-law and Sign By-law respectively, in which Articles 13 and 26 prescribe the process for considering minor variances to the By-laws. The Committee of Adjustment is appointed as the Standing Committee of Council for making a recommendation to Council on such applications. The Committee is directed to follow its usual procedure on such application as far as may be practical, and Council shall make the final decision. From the date the application is submitted to the date of the Committee of Adjustment hearing, 4-8 weeks may pass. Once a recommendation is made by the Committee of Adjustment, the applicant is required to await the final decision of Council, which can add up to 2 weeks to the overall timing. This can be a significant delay in the decision for the proponent. Often, the same submissions are made by the proponent and neighbours at Council that are made to the Committee. Although on the whole, minor variance applications for signs and fences constitute only about 10% of all variance applications submitted to the City, a considerable amount of cumulative staff, Committee and Council time is required to consider these variances. An apparent disproportionate amount of time is spent debating these applications compared to more impactful variances to the zoning by-law. Staff considered ways to allow the delegation of the final approval of these applications to staff or at least to the Committee of Adjustment but found that, at least with respect to signs, the Municipal Act powers constrains the ability to do so. Part III of the Municipal Act R.S.O. 2001, as amended, provides municipalities with specific powers, including, in Section 99 powers to regulate advertising devices (signs). Clause (5) provides the municioalitv with the ability to authorize minor variances from the by-law "if in the opinion of the municipality the general intent and purpose of the by-law are maintained." Under general principles, the municipality is defined as Council and Council cannot delegate their discretionary powers. Other municipalities who have explored the possibilities proposed that IF Council is able to decide in advance of every situation, that "the general intent and purpose of the by-law are maintained", that delegation could occur; however, very explicit criteria or conditions would have to be incorporated into a delegation by-law to ensure the employee was not required to exercise any discretion. The ability of being able to do so to address every case is questionable and if such criteria and conditions can be identified, they would best be incorporated into the standard provisions of the sign by-law, thereby completely eliminating the need for certain variance applications. There may be merit, in taking such an approach for temporary signs. From time to time, staff are apprised of the need to install temporary signs for special community events and such proponents are forced to go through the formal sign variance process which may compromise the success of the special event because of the timing of approvals. Past examples have included a portable sign for Oktoberfest in the downtown which was installed for only 1 week, and the special billboard sign for Grand River Hospital's poster boy fundraising campaign, which was also limited in duration. Neither sign generated any public concerns and staff dealt with both applications as expeditiously as possible through special exemptions to the prescribed process, however, some efficiencies could be gained. Instead of thinking that changing the approval body would address the situation, staff propose that as part of the comprehensive review of the City's Sign By-law, that general provisions with conditions and criteria which distinguish these types of signs from others be incorporated In conclusion, planning and legal staff find there is no practical way to allow delegation to staff or Committee of Adjustment for moo. variances. Regarding minor variances to the City's Fence By-law, the Municipal Act provisions fall under Part II, in which the general powers, or "spheres of jurisdiction" of municipalities are defined, and include the ability for lower tier municipalities to pass by-laws respecting fences. While staff initially contemplated the efficiencies of delegating the final approval of minor variances to the fence By-law to staff, it was thought that the time required for staff to receive neighbourhood input and assist in resolution of any issues before a decision could compromise the process rather than improve it. It is also thought that for certain highly contentious matters, it is less democratic for staff to act as arbitrator. However, there is no provision in the Municipal Act that would allow for the delegation of fence variances by Council to Committee of Adjustment or staff. An argument may be made under the general powers related to spheres of jurisdiction but there is no case law or other statutory interpretation that would support that suggestion at this time. Any such delegation of authority could be subject to appeal. Fence Bv-Iaw Questions A concern was raised by Councillor Weylie in the fall of 2004 at a Council meeting with respect to the equality and fairness of the City's Fence By-law, and in particular, the issue of corner lots. Subsequent to that meeting, enforcement staff met with her to discuss specifics of her concern. Councillor Weylie was provided with some clarification on the by-law provisions relating to corner lots, where the rear yard of one lot abuts the front yard of another lot. It was explained that the provisions of the By-law take into consideration the height of a rear fence in relation to that of the neighbouring front yard. A review of the Fence By-law in 2002 resulted in some amendments that provided greater flexibility to property owners or corner lots and relaxed some restrictions, while ensuring that safety and aesthetic concerns were maintained. A corner sideyard next to a street may have a 3' high fence within 5 feet of the property line next to the street, a 6' high fence between 5 feet and 15 feet from the property line, and then the maximum of 8 feet in height from 15 feet back or greater. The varying setbacks respect the fact that fences in this yard are adjacent to a neighbour's front yard. Staff are of the opinion that the provisions of Chapter 630 of the Municipal Code (Fences) are currently appropriate and fair. It is important to note that the variance application fee is not refunded to the property owner in the event that his/her application is unsuccessful. However, this is explained to the applicant prior to submission of their application, and staff try to dissuade an applicant from applying if it looks like their application may not have a reasonable chance of success. (eg. based on the location of a neighbour's driveway. ) Clerks staff could review the application form to ensure that it clearly indicates to the applicant that the fees are non-refundable in the event that the application request is denied, and to clarify the decision-making process. Heritaae Permits Issues · Presently, a considerable amount of Planning staff time is devoted to preparing documentation and report writing so that Heritage Kitchener Committee members and City Councillors are sufficiently informed to make recommendations and decisions respectively on heritage permit applications. · As Heritage Kitchener meets only once monthly and does not meet in the month of July, from time to time there may be a significant waiting period from application to final decision; furthermore, as the recommendations of Heritage Kitchener are considered at the following Council meeting, there is a further delay before a Council decision on the application is made. · The City requires heritage clearance for building permits and planning applications made for designated heritage property. Some of these permits and applications (such as a building permit application for example) may typically have quick turn around times. However, if the proposed work also requires approval under the Heritage Act, permission to proceed may be delayed until such time as City Council makes a decision on the heritage permit application. · The Heritage Act does not require neighbourhood circulation of heritage permit applications, and in many cases the nature of the work associated with heritage permit applications may be minor in nature and not controversial. Discussion Recent amendments made to the Ontario Heritage Act through the passage of Bill 60 on April 28,2005 may enable the City to streamline the heritage permit application process and make better use of staff resources. The Ontario Heritage Act now permits City Councils to delegate by by-law the power to consent to alteration applications to an employee or official of the municipality. Such delegation of authority may be undertaken following consultation with its Municipal Heritage Committee and may be scoped to include all types of alterations or specific classes of alterations, as described in the enacting by-law. Planning Staff intend to consult with the Heritage Kitchener Committee to discuss the issues raised above, and will bring a report back to Council in the near future outlining options for the delegation of Council's consent to heritage permit applications to City staff. FINANCIAL IMPLICATIONS: No capital financial implications. COMMUNICATIONS: None required. CONCLUSION: Planning staff are continually looking for ways to improve service delivery and asking the question as to whether the work invested on particular applications adds value to the community and whether the City really needs to do it. In many of the cases above, opportunities for potential improvement are limited by legislation. Where the authority is there, as provided for in the new Heritage Act, staff propose to seize the opportunity to explore improvements, without sacrificing opportunities for community input to the decision-making process. Jeff Willmer, MCIP, RPP Director of Planning Janice Given, MCIP, RPP Project Manager