THE SIX-MINUTEMunicipal Lawyer 2017

Scott SniderTurkstra Mazza Associates

The Province’s Review of the OMB: What You Need To Know

Provincial government is conducting review of the Ontario Municipal Board (OMB).

Government released a public consultation document in October 2016 outlining a number of proposed changes to the OMB’s process and procedures.

Some viewpoints on the OMB Citizens feel they don’t have a meaningful voice in the process; More weight should be given to municipal decisions; OMB decisions are unpredictable; Hearings cost too much and take too long; and There are too many hearings - more mediation should be used.

Public comments were due December 2016. If the government is to meet its timetable within this mandate any legislation will need first reading by the end of May with a clause by clause committee review in the fall. This is a further opportunity for input.

However, one of the concerns is that important details may be left to regulations, which would follow at some later date and may not receive the same scrutiny and/or input.

The Province’s Review of the OMB: What You Need To Know

THE REVIEW: STATUS UPDATE

Theme 1: OMB’s Jurisdiction and Powers

Limiting the scope of appeals, eliminating de novo hearings etc.

Theme 2: Citizen Participation and Local Perspective

Expanding the Citizen Liaison Office, increasing citizen participation, making process more accessible to members of the public etc.

Theme 3: Clear and Predictable Decision-Making

Having multi-member panels etc.

Theme 4: Modern Procedures and Faster Decisions

Less complex and more accessible procedures, new concept of Active Adjudication, establishing timelines for decisions, written hearings, maximum days allotted for hearings etc.

Theme 5: Alternative Dispute Resolution and Fewer Hearings

More mediation, mandatory mediation assessments for every appeal, making mediators available in early stages of a planning application etc.

The Province’s Review of the OMB: What You Need To Know

THE PROPOSED CHANGES IN FIVE THEMES

The Province’s Review of the OMB: What You Need To Know

THE PROPOSED CHANGES: LOCAL PLANNING APPEAL TRIBUNAL

New law will establish the Local Planning Appeal Tribunal (LPAT) - replacing the OMB.

Elimination of de novo hearings for the majority of land use planning appeals.

Hearings will not be hearings. “In the majority of cases” evidence will be limited to written materials. No examination and cross examination of witnesses.

The following will no longer be appealable: provincial approvals of official plans and official plan amendments, including approvals of conformity exercises to provincial plans and Minister’s Zoning Orders.

The appeal of secondary plans will be restricted for a period of two years, unless permitted by municipal council.

There will be no appeal of interim control by-laws when first passed for up to one year.

Municipal policies supporting appropriate development around major transit areas, such as Go Train station and subway stops are also protected from appeal (500 m radius).

The Province’s Review of the OMB: What You Need To Know

THE LPAT PROPOSED HEARING PROCESS

For complex land use planning decisions, the LPAT can only overturn a municipal decision if it is not consistent with Provincial policies and not in conformity with the municipality’s official plan.

When a decision is overturned, the LPAT is required to send the matter back to the municipality with written reasons, instead of replacing the municipality’s decision with its own.

The municipality would have 90 days to make a new decision.

The LPAT will retain authority to make a final decision only when, on a second appeal, the municipality's second decision still fails to follow provincial policies or municipal plans.

The Province’s Review of the OMB: What You Need To Know

THE PROPOSED CHANGES: LOCAL PLANNING APPEAL TRIBUNAL

LPAT required to conduct mandatory case management for majority of cases.

Statutory rules will be created regarding the conduct of hearings, setting strict timelines for oral hearings and limiting evidence to written materials in the majority of cases.

Modern hearing powers: promoting active adjudication, alternative hearing formats and multi-member panels.

Creation of the Local Planning Appeal Support Centre (LPASC). LPASC will provide general information on land use planning, guidance on the tribunal appeal and hearing process and provide legal and planning advice at different stages of the process (ex. case conferences and hearings).

Local Appeal Bodies (LAB) will be given authority to hear appeals of site plans, in addition to minor variances and severances.

Future of century-old midtown school uncertain as highrise looms (Toronto Star) https://www.thestar.com/news/gta/2017/03/03/future-of-century-old-midtown-school-uncertain-as-highrise-looms.html

Contested Development, Planning Power & Politics, Onwards and Upwards (Toronto Star) http://projects.thestar.com/ontario-municipal-board-reform/contested-development/ http://projects.thestar.com/ontario-municipal-board-reform/planning-power-politics/ http://projects.thestar.com/ontario-municipal-board-reform/onward-upward/

The OMB: We Come to Reform, Not Bury You - Making the OMB a True Appellate Body (John Caliendo, ABC Residents’ Association & Andrew Biggart, Municipal Lawyer) https://static1.squarespace.com/static/5210f682e4b0a807b650c92b/t/57682f29f5e231e795fd3889/1466445611135/ABC+Caliendo+

THE+OMB+WE+COME+TO+REFORM+NOT+BURY+YOU+2016+03-08.pdf

The Province’s Review of the OMB: What You Need To Know

PUBLIC PERCEPTIONS OF THE OMB

The Province’s Review of the OMB: What You Need To Know

MEDIA REPORTING ON THE OMB

Future of century-old midtown school uncertain as highrise looms (Toronto Star)

Media Reporting The Facts“The project was approved by the OMB in early 2016 despite objections from the city and local residents in a neighbourhoodwhere booming redevelopment is already jamming streets and sidewalks.”

The Board approved a settlement that was developed through Board-led mediation which involved all of the parties and the two residents’ associations who wereparticipants in the hearing.

The Province’s Review of the OMB: What You Need To Know

MEDIA REPORTING ON THE OMB

Contested Development, Planning Power & Politics, Onwards and Upwards (Toronto Star)

Media Reporting The Facts“The Star reviewed all of the available decisions, 1,101 in total, involving Lee. Ofthose, nearly half were for cases outside of Toronto (some of the decisions relate to the same case). The Star then identified those cases involving significant development — excluding disputes over minor adjustments — where the city was opposed and a settlement was not reached, meaning Lee had to actually make the call. Of those 33 cases identified, the developer was successful 75 percent of the time.”

• 33 cases over a 23 year period (1991-2014).• 17 / 33 cases were settled. Leaving a sample size of 16 decisions

from a single Board Member – representing less than 2% of Mr. Lee’s decisions available on LexisNexis.

• 12 / 16 cases were not settled and the Board ruled in favour of the developer 12 times.

• 7 / 12 cases did not deal with the form of development or traditional “planning issues”. In one case, City Staff gave evidence in support of the development against the position of Council.

• In the end, only 5 / 33 decisions dealt with the form and function of high density, condominium towers that favoured a developer over the objections of Council and City Staff: 5 decisions in 23 years.

The Province’s Review of the OMB: What You Need To Know

MEDIA REPORTING ON THE OMB

Contested Development, Planning Power & Politics, Onwards and Upwards (Toronto Star)Media Reporting The Facts

“…..the OMB has long been accused of siding with developers over any other party involved in an appeal”

City of Hamilton success rates before the OMB:• 2015: 33 / 34 planning appeals were successfully argued

by the City and/or settled;

• 2014: 33 / 34 planning appeals were successfully argued by the City and/or settled;

• 2013: 12 / 16 planning appeals were successfully argued by the City and/or settled; and

• 2012: 25 / 27 planning appeals were successfully argued by the City and/or settled.

The Province’s Review of the OMB: What You Need To Know

MEDIA REPORTING ON THE OMB

Contested Development, Planning Power & Politics, Onwards and Upwards (Toronto Star)

Media Reporting The Facts5170 Yonge Street (Menkes Gibson Square) near Yonge Street and Sheppard Avenue

“What the city said: “The application to permit a maximum 100% residential uses on the subject lands is not consistent with the Provincial Policy Statement and does not conform to the Official Plan and North York Centre Secondary Plan directive to provide nonresidential uses where they have been deemed appropriate and desirable, and cannot be supported.”

What Lee said: “The juxtaposition of the proposed built-form to the public realm is elegant and well chiselled. Such attributes are important considerations on their own . . . To maintain these lands as office commercial in the face of lack of demand and in a policy framework that does not eschew residential usage runs contrary to the concept of optimization.””

Menkes Gibson Square Inc. v. Toronto (City), [2008] O.M.B.D. No. 62, para 8

Wilson Lee: “The Board is mindful that these merits, if they can be so described, do not have a definitive bearing on the central land use question before the Board. Regardless of how salubrious and elegant the project, how acceptable it is to theimmediate community and how wondrous the design for heritage and parks accommodation, the central questionbefore the Board could not be considered as having been definitively addressed simply because the community hassignalled its acceptance.”