TheBulletin.ca Journal of Downtown Toronto
A most welcome and long-awaited announcement was made at the end of August by the Ontario Minister of Municipal Affairs and Housing, Linda Jeffrey. Addressing the delegates to the Association of Municipalities of Ontario, she declared her government is planning to reform the increasingly controversial Ontario Municipal Board (OMB).
This fall she is launching a consultation process to enable municipalities, community groups, and stakeholders to help develop solutions.
The OMB is a provincially appointed, non-elected appeal body. It is worth noting it is the only one of its kind in our country.
It has the power to deal with all land-planning issues. Its frequent overturning of local decisions by city planning departments and politicians has become a serious public issue.
OMB decisions used to be appealable to the provincial cabinet. Such an appeal to the cabinet of then-Premier Bill Davis stopped the infamous centre-town Spadina Expressway in 1971 that was just approved by the OMB. Later Premier Mike Harris decreed OMB decisions to be final and only appealable in courts on narrow legal procedural grounds.
A recent outrageous example is the OMB verdict last February on 154 Front St. E., corner of Sherbourne. The site is in the original 10 historic city blocks of the 1793 Town of York, precursor of our Toronto. OMB approved almost tripling the allowable density and height of two condo towers in this area specifically described in city bylaws as an “Area of Special Identity” (see my column May 2013).
Between 2000 and 2006, OMB sided with developers in 64% of cases.
This has led to increasingly loud public and private calls for its abolition or, at least, modification of its sweeping powers.
In June, 2011, Mississauga City Council unanimously voted to simply abolish OMB. In February, 2012, Toronto City Council followed with a vote of 34-5. Mississauga has since modified its call. It now only asks to be exempt when its planning decisions clearly conform to provincial policies.
In March this year Downtown MPP Rosario Marchese of the NDP tabled a private member’s Bill 20 in the provincial legislature. It would exempt Toronto from OMB city planning oversight and allow the city to establish its own appeal body.
Constitutionally all Canadian cities are the children of their provinces.
Cities only have the powers specifically granted by their parents, the provinces. Marchese argues it is time a city like ours, now 220 years old, be treated as an adult. He notes that Toronto is the sixth largest government in Canada, larger in population than six of our 10 provinces.
It has the largest planning department in the country despite cutbacks.
Marchese’s Bill 20 passed second reading this spring with all-party support. It must now go to public hearings in the Finance Committee before third reading. It is doubtful, however, that the government will allow it to proceed much further now that the government is instituting its own long-awaited review.
In 2007 the McGuinty government tinkered with the OMB in response to continuing municipal complaints.
Its Bill 51 said the OMB “shall have regard to” any decisions made by municipal and other approval authorities.
This was to counter OMB procedures. They start from a total blank slate and ignore all previous planning deliberations and decisions by any other body on a particular project.
An Ottawa developer then challenged Bill 51 in court. He won in 2009. The court said the words “have regard to” only legally mean “have minimal deference to.”
(Go figure.)
The OMB similarly considers as not legally binding formal city design guidelines like those for the St. Lawrence Neighbourhood adopted by city council after extensive studies and public input in 2005.
Changes to the OMB must be made by the province. Before her installation as our new Liberal Premier, Kathleen Wynne in an earlier role as Minister of Municipal Affairs and Housing, indicated a willingness to review the OMB. It appears she is now willing to at least start acting. But more tinkering will not help. The least she can do is to allow passage of Marchese’s Bill 20.
In December 2011, my wife and I went before a Committee of Adjustment seeking variances to build an addition to our freehold townhouse in the St. Lawrence neighbourhood. We have been residents of the St. Lawrence neighborhood since 1995. Our application had the support of City Planning, with whom we had gone several rounds. Despite the support of the City, and despite evidence that our addition would not increase the density of our house beyond that of the largest other houses in the neighbourhood, and despite sun studies proving no impact on our neighbor, and despite the arborist and Urban Forestry being satisfied we were not damaging any trees, one neighbour (and several other people in the neighbourhood who do not adjoin our property) made a noise, and so we were turned down. We appealed to the OMB, where the Committee of Adjustment’s decision was overturned and we were granted the variances we sought. That occurred in April 2012. It is now October 2013 and we have only just completed the addition/renovation, having started in April 2013, a year after the OMB decision. I say, “Thank God for the OMB.”
What you overlook in your column is that City Planning staff, while generally decent people, are wholly unelected and unaccountable, and their opinions are not always or at all in accordance with those of other professional planners. The same is even more true of the Committee of Adjustment, which is little more than a kangaroo court with no formal procedures or boundaries, and which cannot possibly hear properly the number of cases it is called upon to decide in any sitting.
As a professional structural engineer, I am often involved in the development process and have been before the OMB as a witness. Say what you want about it being unelected – and perhaps argue that its decisions should once again be appealable to the cabinet – but it is a professional, organized and formal body. Prior decisions by planning are not simply thrown out the window as you state; cases start from scratch only in that they have not been heard before. Witnesses are qualified, records are kept, and precedent is given weight. Board members are drawn from a variety of backgrounds including planning. They have no vested interest in the outcome and are apt to be more impartial than anyone else. I see no evidence they are in anyone’s pocket. Moreover, as your own statistics point out, less than 2/3’s of the cases are won by developers. It is not a slam dunk for them, and in any event, one could just as easily argue that this rate demonstrates the flawed nature of the original decisions that are being appealed.
With respect to public input and the like, I can say that much of the blandness of most municipal residential (condo) development is because it is pushed downwards towards mediocrity by the very process you seem to favour. No one speaks for a neighbourhood nor does a neighbourhood have a character that is frozen in stone at one point in time never to be significantly altered. I recognize some legitimate pubic input only with respect to infrastructure (i.e. can the local infrastructure handle the development) and in terms of actual, measurable impacts on other people’s property. I do not recognize any legitimacy whatsoever in the taste or opinion of any group, for or against, someone else’s vision of what their property should be. If any of the great human inventions had been put to a vote, we’d still be living in caves. Presumably, though, we’d have no impact on the environment, at least until some caveman proposed the OMB.
Anthony Mirvish