Last night Council deliberated in Closed session and came out to open session and voted 6-0 (Councillor Gallo was absent) to retain an external lawyer and consultants to support the decision of the Committee of Adjustment to refuse the variance applications for 672 and 684 Henderson Dr.
While I appreciate that folks are very happy that efforts to protect this green space have been successful thus far, as I have stated previously, there are other steps in the process that must still be undertaken that may impact the ultimate outcome.
As provided in the legislation, any applicant has the right to appeal a Committee of Adjustment (COA) decision. In the case of these properties, the applicant has decided to appeal and Council (as is our right) has just decided to retain an external lawyer and consultants to support the decision of the COA (refusal of both applications.)
The process for appeals before The Local Planning Appeal Tribunal (LPAT) of COA applications are that said hearings are “De Novo”. This means that LPAT will hear evidence as to whether the variance meets the four tests and issue a decision independent of the COA decision – and the LPAT decision is final on the matter. It cannot be appealed.
While the LPAT panel will give “due regard” to the decision from the COA and the support of Council, the hearing is, from the Panel’s perspective, in essence a whole new application submission.
So, while the COA has denied the applications and Council has decided to uphold and support that decision, it will ultimately be LPAT and a single adjudicator that decides the fate of the properties in question . And the single adjudicator’s decision is binding and not subject to appeal.
This is the land-use planning process we have now. And this is what we fought so hard to try and have changed – to limit the scope of powers of an unelected, unaccountable body as it speaks to land-use planning decisions in our community. We fought successfully to ensure that municipal elected officials were granted greater authority to decide how, if or when our community grows and develops. With the passage of Bill 108, those hard fought changes have been undone. This, unfortunately, is the system we have now and how the process works.