The homes of most people in Oakville were built by developers. From the very beginning, Oakville was a planned community. The founder, William Chisholm, laid out streets and lots with places for a church and a school in the earliest days.
Today, the growth of the Town is a constant back and forth between the Official Plan and the zoning regulations drawn up by Town staff at the direction of our democratically elected Mayor and Council (styled Livable Oakville), and the ideas brought to the Planning department by property owners and those developing that property.
The Official Plan, which is approved by the Province at the Local Planning Appeal Tribunal LPAT (formerly Ontario Municipal Board), and in Oakville is called Livable Oakville, is the document which details the policies governing new and infill development. The zoning regulates how these policies are implemented across the Town, neighbourhood by neighbourhood and block by block.
This plays out in various ways depending on the scale of the development.
In neighbourhoods, the one we hear about most is the “minor variance”, which can be granted by the Committee of Adjustment. This usually happens when a homeowner wants to do an addition or a demolition and new build, but the current zoning doesn’t comply. Either the height, the total footprint, or setbacks allowed in the zoning don’t quite fit the homeowner’s vision to make their home work for them.
Neighbours sometimes find these variances anything but “minor”, but it is important to remember that the variances are based on what is permitted: not from what is already there. Many older neighbourhoods have homes much smaller than what is permitted.
When homeowners renovate or rebuild, the new home can be a major change from what is there, but still within or very close to what would be permitted without a hearing. Many changes that seem egregious compared to the former home or even neighbouring homes are in fact very minor compared to what the zoning permits .
Nevertheless, the need to apply for a variance before exceeding zoning even by a few inches means the Town can ensure the intended character of neighbourhoods can be maintained. In fact, while the Town has no rights to legislate taste, a wily councillor can leverage the desire for a variance to get a homeowner to revisit a design that might better fit into the surrounding streetscape.
When it comes to larger developments, often major zoning changes or even changes to the Official Plan are requested. Oakville, like every other community in Ontario, has to follow the Planning Act, and related documents that address issues such as enabling the kind of density that will support public transit.
In theory, if its Official Plan accommodates all the provincial objectives, it can refuse applications that deviate from it. First however, council must give all applications due and fair consideration, even if they do not fit the Official Plan’s vision. This is because a developer or property owner may have hit upon an idea that is actually better for the community and provides a “higher better use” for the property. In practice, the measure for “highest best use” is what the project does for the value of the property, when taking into account its impact on the surrounding community.
Diligent home buyers check the zoning in the area around their property to ensure that their own enjoyment of the property and its future value cannot be impaired by unsuitable development. Getting up in arms when a warehouse is planned that brings in truck traffic near your home after buying a house next to an area zoned for commercial properties is unreasonable.
On the other hand, it is reasonable to object when an area that was zoned for one use is proposed to be developed to an entirely different use, or with greater density, height, footprint or traffic impact. At that point, Council will consider the merits of the application, accept it, refuse it or propose a compromise.
This is when the fun begins.
At this point, if the developer is unhappy with council’s decision, the property owner can appeal to the LPAT. Under the previous Liberal government, this body was restricted to overturning council’s decisions only in cases where council had either failed to follow its own planning and zoning rules or where those rules were not consistent with provincial policy.
However, through most of its history and again under the current Progressive Conservative government in Ontario, LPAT can now look at an application on its own merits independently of any of the reasoning Council used in reaching its decision. (Among other problems, this means the application is being adjudicated by someone who does not have knowledge of local community particularities or history and makes the decision on principle. This is one of the reasons that if you are put down blindfolded in many Ontario communities you won’t be able to tell where you are.)
The pattern of OMB, now LPAT, decisions has generally favoured developers. The “highest best use” concept, as determined by the property’s ultimate value seems to inform these decisions. It could be argued that the role of the OMB and now LPAT has been to prioritize property owners’ rights over community rights. (One might even speculate that this can be traced to the earliest days of our democracy, in which the right to vote was restricted to male landowners.)
It is argued that LPAT is a defence against NIMBYism and the councils are too swayed by voters at the expense of property rights. The counter argument is that the existing residents of the Town should be able to influence its form and development through their elected representatives, as it is their community and home. As things stand, they are often overruled by the future residents whom the developer seeks to attract—even though the existing form of the community is one of the attractions the developer is profiting from.
The highest profile such application in our community is of course the proposal to develop the Glen Abbey Golf Club for housing and commercial use.
The Town argues that the property owner purchased the property zoned “Private Open Space” and should make any development in accordance with that. (The Town has also designated it as a heritage property, which further limits the changes that can be made). The developer can make substantially more money by a change in zoning and the Official Plan and has therefore appealed the Town’s refusal to LPAT. This will be heard in 2021. The application will be judged not on whether the Town applied its Official Plan and zoning properly, but on its merits.
If you had a corner lot and got together with 3 of your neighbours and applied to the Town to change your zoning from single family to a drive through restaurant in the middle of a Glen Abbey residential area, the Town would consider that application.
It might see merit in it but it might also refuse it.
If it refused it, you would probably not be able to justify the costs of an appeal to LPAT but if you did, this “highest best use” might well be refused by LPAT, as incompatible with the neighbourhood. LPAT would one suspects cite the Official Plan which has adequate provisions for drive through restaurants elsewhere, and reject your proposal. LPAT would consider it entirely reasonable to expect you to continue your use of your home as a dwelling or sell it as such in accordance with the zoning and the Official Plan.
It is difficult to have confidence that the same rationale will apply in the case of a well-heeled developer’s application. For some reason, developers have an expectation that they cannot be required to follow the zoning the way a homeowner can be required to.
This developer has argued consistently that it cannot be obligated to continue to operate a golf course or to maintain the property as private open space within the zoning. You can be required to operate your house as a residence, but he cannot be required to operate his property in accordance with the zoning in place when he purchased it.
Somehow, the developer and his lawyers do not find this to be contradictory.
This is no surprise.
The Glen Abbey application is but one of hundreds of examples of major zoning changes proposed, and often accepted at the OMB/LPAT, by developers—zoning changes that no homeowner would expect for a minute to apply for, let alone have approved.
In the Ontario planning regime, the Town is essentially delegated by the Province to administer its wishes: Town Council does not lead in planning the Town, it simply manages Provincial policies down to the detail at the Town level. Even when it does this with great diligence, the Province reserves the final decision at LPAT. As a result, Councillors often feel that in opposing developments they are only serving to wear out the resistance of their residents.
As one put it, “we are no more than spear catchers for the Province”.
When you are taken aback at an application which seems entirely different from the zoning you relied on when you bought your house, perhaps this explanation will help you understand why our Planning Department and Town Council doesn’t just reject it out of hand.
In the meantime, we all watch the Glen Abbey case with interest. If LPAT finds for the developer, the precedent will be such that the neighbourhood drive through application will no longer seem so absurd. Indeed, it will raise the question of why we have zoning and an Official Plan, and why we spend so much money on our very skilled and talented Planning Department. If the decisions they make to develop the Town in accordance with the Province’s wishes while maintaining its character can be overturned, then let’s save the money. A box at the front counter of Town Hall full of pre-signed building permits with a sign saying Take One would be cheaper and as much use.