Commentary

Subject to a 'Minor Variance': Hamilton's Broken Site Plan Approval Process

We're going to be asking the Planning Committee to look seriously at the processes used for approving projects of this scale and we're going to be asking them to recommend that Council make some meaningful changes and put them in writing.

By Cameron Kroetsch
Published October 06, 2017

This past September I received a notice in my mailbox about an application for a "Minor Variance". I glanced at it quickly. What I read led me to believe that I was being informed about plans for a redevelopment in my neighbourhood. I let out an audible "hmmm" and put it down on the counter.

Though I promised myself I'd look at it later that evening, it took me a couple of days (and a note from my neighbour) before I picked it back up and read it over closely.

I scanned the pages and diagrams and quickly realized that my initial impressions had been completely wrong. It wasn't a notice about a plan at all but a notification and request for comments about two "minor variances" to the city's zoning bylaws for the site at 210 Main Street East (currently a Days Inn).

As I then learned, the plan was to redevelop the site to construct a 15 storey mixed-use building: commercial units on the ground level and 224 residential units above.

I scratched my head, got together with the aforementioned neighbour, and made a plan to find out more. We split up the work, read as much as we could, and I'm here now just a few busy weeks later to tell you what happened and what I've learned so far.

I want to start by saying that I didn't have such a bad time of things these past few weeks. I have an immense amount of privilege. I have multiple university degrees, experience with negotiations and contracts, and have worked in and around politics for more than a decade. And, as a cisgender man, I have access to government systems, know how to navigate them, and understand who to speak to.

Still, getting this notice in our mailboxes was stressful and upsetting for everyone in our neighbourhood. Simply put: it's written in a vague legalese and includes rather technical-looking documents (here's my copy [PDF] so you can see what I mean).

First rendering from Minor Variance application
First rendering from Minor Variance application

Second rendering from Minor Variance application
Second rendering from Minor Variance application

None of us had experience with these committees or variances and we didn't immediately understand the implications of the two variances listed on the notice.

To be fair, had I not missed an awesome article by Joey Coleman or been unavailable to attend a spring community meeting put on by the Corktown Neighbourhood Association, I might have known about this a little sooner.

Thankfully, my neighbour and I had the time and energy to dig a little deeper. What follows is a brief description of what happened, what we found out, and what I want to pass along to other residents.

Not Always Notified

The piece of paper I got in my mailbox was definitely a notice (just not the kind I thought it was). It is properly called a "Notice of Public Hearing" related to an "Application for Minor Variance".

All such applications are brought to the attention of residents within 200 feet so that they may attend the Committee of Adjustment meeting and/or submit comments about the proposed application.

In our case, we were provided with two weeks' notice of the meeting that was to be held on September 21 at 3pm to address two "minor" variances to Zoning By-Law No. 05-200.

The two variances were:

  1. to move the front of the building back 3.2 metres from the curb (the bylaw says a maximum of 2 metres is allowed); and

  2. to reduce the number of parking spaces from the 120 spots required in the bylaw to 96, a 22 percent reduction.

We looked over the bylaw, tried to process the implications of these "minor" variances, and reached out to City staff.

Time was ticking. It was recommended to us by City staff that written comments and neighbourhood signatures be gathered and submitted no later than early in the morning on September 18 to provide committee members time to review them.

This meant that we only had five business days to get the site plan documents, figure them out, and work with our neighbours to come to a consensus about what we wanted to tell the Committee.

We quickly realized that the time we were provided with would never be enough for us to wade through the more than 150 pages of reports and technical documents. We both had full time jobs, volunteer commitments, and loved ones to consider.

So, our community did what it thought was reasonable: we asked the Committee to give us an additional 30 days to get up to speed and we turned to our ward councillor, Jason Farr, to ask that he support our request for more time.

In the end, it was me, eight neighbours, signatures from another six who were not able to attend, and a representative from the Beasley Neighbourhood Association, who went down to the Committee of Adjustment in the middle of a work day to plead our case for more time.

Our request was denied. The majority of the Committee voted in favour of the developer's application and that was that. It was all over in about 15 minutes. After a week and a half of non-stop work, I still didn't really have enough information about the development.

We needed more time and we were not going to get it.

Process Does Not Work for Residents

The most surprising thing I learned was that this was not a notice to indicate that someone was thinking about building a new development in our neighbourhood.

In fact, we learned that the plan for redevelopment had been discussed by City staff, our ward councillor, a panel of experts, and a host of other people and organizations for more than a year before we were directly notified about it.

My neighbour and I are still gathering information, researching and reading through documents, and dialing, dialing, dialing those City Hall extensions to ask questions.

What we have learned so far is that this proposal did not go through the Formal Consultation process. It has been given at least one "waiver" by the City (according to City staff) and has been ushered through what I can only describe as an informal "pre-consultation" process.

The sad and disappointing part of this is that even the Formal Consultation process doesn't have residents in mind. Everyone else is seemingly notified as part of this process, including:

At this point, no one thinks it's important to directly tell the people who will be most affected by the development: nearby residents.

In fact, during the application hearing at the Committee of Adjustment the developer stated that it wasn't his problem that we weren't notified earlier as it should be the city and our councillor who inform us and get us involved - and he's right.

Better Process is Needed

We don't want this to happen to other people in Hamilton. We're going to be asking the Planning Committee to look seriously at the processes used for approving projects of this scale and we're going to be asking them to recommend that Council make some meaningful changes and put them in writing.

We want a process for neighbourhood participation and we want it to start in our councillor's office. If the City has the capacity to notify us of a "minor variance" then they have the capacity to tell us when the Site Plan Approval process has been initiated.

At this point, and with still more learning to do, here are a list of key requests that my neighbour and I have identified as things that we think are important to this process:

The bright spot in this is that almost everyone I have spoken with in City staff has been friendly, engaging, helpful, and patient. They've pointed me in the right direction, sent me documents by email when they could, and have gotten back to me quickly.

If nothing else, I continue to really appreciate and value our City staff, the hard work they do, and the often thankless tasks they're asked to carry out.

This might come as a surprise to some, but I'm not opposed to the possibility of a development to replace the Days Inn. There have been promises of new commercial services with this redevelopment and claims by the developer that some of the units will meet affordable housing criteria - though this remains to be seen.

What You Can Do

If you should find out that there's going to be a new building in your neighbourhood I strongly recommend that you:

Finally, please look out for our group of residents as we become more active and vocal about the changes we want to see to these processes. You can find us on Facebook or send us an email to springandjackson@gmail.com any time.

The majority of the people in our neighbourhood (outside the required 200 feet) were not notified by the Committee of Adjustment and still don't know about this project. We will be holding a community meeting, circulating a petition, knocking on doors, and showing up to City committees to make our voices heard.

If you share our concerns, please come out to support us or just reach out to say hello. We really want to hear from everyone who has been denied a voice in this process.

Cameron Kroetsch moved to Hamilton in 2014. He's a labour relations professional, sometimes writer, and a passionate non-profit sector volunteer who cares about democracy in government and community advocacy.

15 Comments

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By VivSaunders (registered) | Posted October 06, 2017 at 08:18:18

Hate to be cynical, but in our experience, City Councillors (Planning Committee) set the bar at the bare minimum requirements under the Planning Act. If they don't have to notify residents under the Act, they won't; even if they are not prevented from doing more under the Act. There are councillors in the city who do a very good job of notify their constituents as soon as a development application comes forward. Some even insist the developer meet with residents at the beginning of the process. Other councillors don't want citizens involved until it's too late to make change. I wish you, and your group, the best of luck getting your voices heard. What you're proposing would be appreciated city-wide and if our NA in Ward 10can lend a hand, our email address is lakewoodbeachcc@hotmail.com As an aside, we went out and purchased a very inexpensive portable scanner. After paying those exorbitant fees for copies, and having to wait when time was of the essence (only to not get copies of all the docs we wanted), going into City Hall and scanning the docs we wanted was/is a better option.

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By sparrowswain (registered) | Posted October 06, 2017 at 09:44:32

Thanks for these awesome suggestions and your thoughts about this - I never thought about bringing my portable scanner (such a good suggestion). It's been my experience, so far, that notifying residents just isn't important for everyone (even when it's easy to do). Though I'm not expecting that change will be swift or immediately forthcoming I'm hoping that all of the city's NAs will join us in pushing for these reasonable requests.

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By KevinLove (registered) | Posted October 06, 2017 at 12:42:42

I have achieved quite readable results by taking photographs with my cell telephone.

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By sparrowswain (registered) | Posted October 06, 2017 at 13:54:08 in reply to Comment 122001

Another smart (and simple) idea that didn't cross my mind! Thanks for mentioning it.

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By RobF (registered) | Posted October 10, 2017 at 04:45:14

I'm not unsympathetic having received variance notices in the mail in the past for changes to properties where I live ... doing virtually anything on a property in older neighbourhoods requires a variance of some sort to be made legal. The letter-sized black and white scan of plans attached are virtually impossible to read even with training and the ability to do so. And yes, the problem with variances is the sticky issue of what is "minor"? It becomes an issue when variances are used to allow a use dramatically different than what the OP and/or secondary plan envisions and the existing zoning allows.

That said, I'm not quite sure I follow the whole way thru. How do we start with notice of an application for minor variances and end up with requests to change the Site Plan approval process?

Site Plan approval is highly technical and suggests the proponents have as-of-right permission for their project (in the main). That means they've already gone thru a significant planning process at some point to get an OPA and/or rezoning (notice and public meetings are required for either), or what they are doing is envisioned by the OP/Secondary Plan and is (with the exception of the variances requested) permitted by the existing zoning. In either case, further public consultation is not required under the Planning Act.

Am I missing something here?

Comment edited by RobF on 2017-10-10 04:55:48

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By sparrowswain (registered) | Posted October 10, 2017 at 07:25:48 in reply to Comment 122013

I don't think you're missing anything. Part of the problem is that this project appears to have gone through an initial "informal" or "pre-consultation" process and then to have been sped through the "formal" process. This was especially the case because, as you rightly mention, rezoning wasn't necessary. In that case, as I understand it, the Planning Act does not require notification. This doesn't mean, however, that the City or our councillor couldn't have notified us anyway, and that's been an issue for many in our neighbourhood (some still don't know about the development).

The Planning Act doesn't stop the City from doing more/something to notify residents when there will be a significant change within a few metres of the neighbourhood.

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By RobF (registered) | Posted October 10, 2017 at 08:27:12 in reply to Comment 122015

You make it sound as if notification is the issue here. But what would be gained from notification of an application for Site Plan approval? Just to know something is going to happen (or could) soon, or are you looking for something else like an expanded third-party role in the process (either formally or informally)? I have my doubts about what kind of neighbourhood participation would be feasible during Site Plan approval ... it's quite different from land-use planning.

Comment edited by RobF on 2017-10-10 08:30:44

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By AK (registered) | Posted October 10, 2017 at 08:55:39 in reply to Comment 122016

There is considerable discretion in the municipality's hands around site plan approval. They don't have to consult with anyone, but many do. I don't see it being different from land use planning - in fact I would argue the municipality imposes almost all of its planning criteria at this stage, and this is the stage where consultation would have the greatest possible impact on making a development work with its surroundings

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By RobF (registered) | Posted October 10, 2017 at 09:25:02 in reply to Comment 122018

I don't disagree, per se. Site Plan approval is an extension of land-use planning in the sense that allows a kind of detailed, site-specific implementation that zoning can't provide alone. I tend to agree that it is a stage where consultation could have an important impact on fine-tuning how an approved development works with its neighbours. The difficulty is devising a mechanism that allows non-experts to weigh in with input, while recognizing that residents tend to have conflicting views as to what is desirable and often view any opportunity for input as an opportunity to obstruct and oppose developments they don't like.

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By sparrowswain (registered) | Posted October 10, 2017 at 09:32:54 in reply to Comment 122019

I think you're on to something important here. Residents will definitely have opposing and contrary views - it's not reasonable to expect everyone to approach new development/redevelopment from the same position. That being said, and from my perspective, "non-expert" opinions about things that people "don't like" are important for everyone to consider as part of the process. Sometimes those reasons are grounded in things that are based on knowledge that no one else has and, if listened to carefully, can provide valuable insight. The extent to which you can bring a community together has a lot to do with how connected you are to that community and to how well you keep them informed. The issue, in part, is about sharing knowledge. Keeping information from people makes them feel like they're outside the process and not involved in their neighbourhood - that's not going to help the situation at any stage and the sooner people have a chance to express their opinions the better off the relationship between developer/community will be (in many cases).

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By sparrowswain (registered) | Posted October 10, 2017 at 08:52:32 in reply to Comment 122016

For many residents, notification has remained important. My neighbours have been shocked to learn about this happening and didn't like that they didn't have a lot of notice to process it. Some people have lived in this community for multiple decades - this is a big change. Also, with advance notice it gives people from the community a chance to attend things like the Design Review Panel and to delegate to the Planning Committee (and other committees) in advance of decisions being made should there be concerns that have been overlooked or not considered. In its present format, the process allows for information gathering but not for enough time to read it/process it before demolition/construction are underway. In every planning process there are a lot of moving parts and the feedback gathered from residents needs to be valued as much as the plans put forward by developers. People in communities appreciate being consulted and, even if they don't have expertise, their knowledge about the neighbourhood, its use, and their lived experiences are important (and should be considered long before any potential "minor variance" stage). Would a third-party role help with this? Maybe, but I don't have one in mind at this point. I think that starting with a better notification process is one important first step.

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By RobF (registered) | Posted October 10, 2017 at 09:44:06 in reply to Comment 122017

In its present format, the process allows for information gathering but not for enough time to read it/process it before demolition/construction are underway. In every planning process there are a lot of moving parts and the feedback gathered from residents needs to be valued as much as the plans put forward by developers.

Having been involved in the extensive community engagement done over the last few years, re: waterfront development, I don't disagree with the overall point you are making. The trouble with planning and development approval is that it occurs over time and across multiple decisions. Most people generally don't get involved until a development is slated to begin construction next door ... and usually to oppose it. Site Plan isn't the appropriate stage for people to question or give input on basic land-use planning issues ... like height, density, or permitted use. You'd be better off putting your energies and time toward requesting a more streamlined process for cases like this, such as a DPS: http://www.mah.gov.on.ca/Page4755.aspx (though you'd need to decide if you agree with what the proposed new Downtown Secondary Plan and Tall Buildings Guidelines have in mind for your area first).

Comment edited by RobF on 2017-10-10 09:46:33

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By sparrowswain (registered) | Posted October 10, 2017 at 12:38:33

Thanks for that suggestion. It's a good complement to what we're already suggesting. And, I think that I might not have been completely clear in the article? What we want is notification early on. Obviously, at some points, it's less useful for feedback than at others. But, for instance, I'd love to be able to attend the Design Review Panel meeting. Knowing about it also means being able to check in periodically to see where things are at. Had there not been the need for a "minor variance" here then we would not have been notified at all - there needs to be an early and mandatory notification outside of this process so that people can take the time they need to become familiar with the process/documents.

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By shturkin (registered) | Posted October 19, 2017 at 17:51:12

Hello there,

I am and urban planning student at the University of Waterloo and recently came across your article whilst taking VIA rail home to Hamilton. Currently, I am working in the Planning Department at the City of Ottawa working in the Development Review Central branch. Within the past year, Development Review Central has started a pilot project whereby community associations attend all "formal" pre-consultations for applications subject to Public Consultation under the Provincial Planning Act (applications subject to Public Consultation include Official Plan Amendments, Zoning By-law Amendments, and certain Site Plan Control applications). Having attended these "formal" pre-consultations, I can attest to the fact that having members of community associations present certainly aids in municipal transparency and a more democratic planning process. As someone born and bred in the North End of Hamilton, I think it is time for residents (from various wards) to demand that a similar project be started in Hamilton. Residents often times know more about an area than planners do, and this insight can prove to be invaluable. It's time for Hamilton to democratize the planning process. Because if one thing is certain, it's that "consultation" under the Planning Act is not at all sufficient. Should you like more information on the City of Ottawa's pilot project pertaining to development applications, respond to this comment and we can discuss via email. Sincerely,

Seana

Comment edited by shturkin on 2017-10-19 17:52:06

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By sparrowswain (registered) | Posted October 23, 2017 at 07:59:46 in reply to Comment 122038

Hi Seana! Thanks for that helpful and insightful comment. That sort of comparative information is just the sort of persuasive argument that I think will help to convince the city that this is important (unfortunately). I'll bring it forward the next time I make a presentation to the Planning Committee about this issue. And, I couldn't agree more with what you said - residents understand the lived experiences that take place in neighbourhoods and have very valuable input to offer everyone interested in development.

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