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Hansard excerpt (5): Association of Municipalities of Ontario presentation at Oct. 17, 2017 OMB Reform hearing

This post features an excerpt from the Hansard transcript of the Oct. 17, 2017 OMB Reform hearing at Queen’s Park.

My notes of the above-noted hearing are featured at a previous post entitled:

Oakville mayor, Mississauga deputy city solicitor, and former Toronto chief planner speak out at Oct. 17, 2017 OMB Review hearing

In the text below, I begin with my own notes, after which I conclude with the Hansard transcript, of the presentation by the Association of Municipalities of Ontario.

Please note: I have posted the text in adherence to the Copyright provisions regarding Hansard texts.

A previous post features the following overview of the Association of Municipalities of Ontario presentation

At 4:20 p.m., Lynn Dollin, President of the Association of Municipalities of Ontario, spoke.

Refers to a topics related to case management. [At this point, in the hearing, I took a short break from note-taking. Interested readers will be able to access the details of the Association of Municipalities of Ontario presentation, and the first part of the Q & A, at the Oct. 17, 2017 Hansard transcript.]

Q: A question was asked regarding the Transition.

A: When the Implementation Day arrives, for any [such major undertaking], there is always extra work. We see no reason to delay.

Below is the Hansard transcript of the same presentation

The Acting Chair (Ms. Cindy Forster): We’ll now move on to the Association of Municipalities of Ontario: Lynn Dollin, president. You’ll have 10 minutes for your presentation, or up to 10 minutes. Please state your name

Ms. Lynn Dollin: Thank you, Madam Chair. My name is Lynn Dollin. I’m the president of the Association of Municipalities of Ontario. With me today is Cathie Brown. Cathie is a senior policy adviser with AMO.

The Acting Chair (Ms. Cindy Forster): Welcome to committee.

Ms. Lynn Dollin: Thank you.

The Association of Municipalities of Ontario, or AMO, appreciates the opportunity to contribute to your deliberations about the reform of the Ontario Municipal Board appeal process and the role of service delivery by conservation authorities.

This bill addresses many municipal government concerns in ways that we can support. Nonetheless, there are several recommended amendments. You have a copy of my remarks, as well as our specific amendment requests, beginning on page 6.

Let me start with the Local Planning Appeals Tribunal part of the bill. There are several positive changes which speak to stability in the local planning process and create efficiencies. These include:

—A tribunal which will focus on the conformity of a municipal planning decision with a provincial policy statement, a provincial plan or an applicable official plan.

—The tribunal is to focus on provincial interest where a notice from the minister responsible for the Planning Act considers its interest may be adversely affected.

—It will not hear the application for the land use change as if the application had not been previously made.

—Certain types of planning amendments would be sheltered from appeals.

—Case management conferences are to be used to scope issues at the tribunal.

—A Local Planning Appeal Support Centre would help citizens through the appeal process. We support the province paying for this centre and providing it.

The new process will continue to focus on complete applications from developers, public input, professional planning advice, reflection of relevant provincial interests and municipal council decisions, and scoping of appeals to official plan conformity and provincial policies. The bill’s changes continue to build on previous changes to the process. They should lead to significant savings in time and in legal fees.

This approach will also require upfront effort from provincial staff to offer complete comments and ensure proper understanding of local conditions and ambitions within the framework of provincial policy and plans.

AMO is aware that some developer stakeholders feel that the changes in this bill will alter a council’s role from that of a policy or legislative one to that of a judicial one. We note that section 61 of the Planning Act currently says the role of council is a legislative one. It would be unfortunate that an emerging contrary view might attempt to sideline the role of the new tribunal.

The question of legislative versus judicial arose in 1983 when public meetings were introduced, and was resolved by section 61. Let me quote from Hansard and the Waterloo North MPP of the day, Mr. Epp:

“[Public meetings] was addressed by a number of municipalities coming before the committee, and had to do with making the councils perform what they feared was going to be a judicial function.

“They were going to have hearings. The way the legislation was originally interpreted was that if they had a hearing on a planning matter or a zoning change, they would not be able to even leave the hearing at any time—to have a coffee, go to the washroom or anything. If they did they would not hear the full extent of the testimony before the committee. The minister will recall, having read a lot of the briefs that came before the committee and letters that I am sure came to his office, that the councils felt they would be performing a more judicial function than a legislative function.

“I was glad to see, during the course of those hearings, that matter was clarified. The councils, under the new Planning Act, will be performing essentially a legitimate legislative function rather than a judicial function.”

We ask this committee to ascertain whether this bill, which shelters land use changes from appeal to the LPAT, brings into any doubt a council’s current legislative role. The Ministry of Municipal Affairs should be available to provide information on this.

At the end of the day, this committee has a responsibility to recommend to the Legislature a bill that is clear and achieves the policy intent.

AMO is asking for two amendments.

First: Some years ago, the province intentionally consolidated all of its land use policies into the Provincial Policy Statement so that everyone involved could have all of the policies in one place. This bill, schedule 3, section 3, reverses that. Any participant in the planning process will have to hunt through other legislation to find provincial policy. We recommend that the bill be amended to remove references to other legislation and, instead, the provincial policy statement be written to include these other policies and plans.

Second: Where a decision is returned to a council by the Local Planning Appeal Tribunal for a second decision, 90 days is not sufficient to undertake all the processes required by Bill 139. A municipal government would have to organize and provide notice of a public meeting, perhaps have planning committee review, and then have a council decision. We think that a 120-day period is recommended.

The bill does rest on some regulatory authority, such as transitional rules and LPAT procedural rules, and we believe the ministries will continue their outreach to us on their development.

Let me now turn to conservation authorities, schedule 4 of the bill.

Schedule 4, which amends the Conservation Authorities Act, is also largely supported by municipal governments. We appreciate that the purpose of the conservation authority is clearly stated. The bill clarifies that there are regulated, mandatory activities of a conservation authority and that discretionary activities are to be by local memoranda of understanding with municipal governments on services and their costs. The bill also adds clarity to the permit process.

The bill wisely harmonizes the language used in conservation authority budgets and accounts with similar language used by other public sector organizations, such as for capital and operating expenses. This will increase transparency and the ability for the board to understand financial information in terms they already use.

We also appreciate that the processes for enlargements, amalgamations or dissolutions are also clearer and easier to understand.

It also brings conservation authority meeting procedures in line with municipal government procedures, such as notice of meetings, open and closed meetings, certain staff roles, and freedom of information. Procedural bylaws that provide greater clarity around the appeals processes for fees apportioned by the conservation authority for capital costs and operational costs are all welcome changes.

Clearer articulation of enforcement procedures and authority is also better harmonized with other legislation. Specifically, the power to issue stop-work orders is added. Without this tool, conservation authorities have been prevented from enforcing their policies.

There are some areas where greater clarity is needed. For example, advisory boards appointed by the province are introduced in this bill. The circumstances under which the minister would exercise this power are unknown. It is not clear how the outcomes of such committees would be used by the conservation authority or how this would impact local service agreements and costs. Providing such broad authority seems less transparent than desired.

The minister may also intervene on the amount of fees and how they are calculated. The conditions under which a minister may choose to exercise these powers need more clarity. They impact municipal costs, as lower fee revenues most often mean higher levies to municipal governments.

Part IV, section 12 of the bill states that municipal councils continue to have the authority to appoint conservation authority board members. This makes sense. Municipal councillors are representative of all walks of life in an area, and it is the council that pays the greatest proportion of the conservation authority’s funding. However, section 40(1)(a) of the bill indicates that the Lieutenant Governor in Council “may make regulations governing the composition of conservation authorities and prescribing additional requirements regarding the appointment and qualifications of members of conservation authorities.” AMO has consistently maintained that until the province reinstates significant funding to conservation authorities, municipal government, as the major funder, should have sole right to appoint board members.

The Acting Chair (Ms. Cindy Forster): You have about one minute.

Ms. Lynn Dollin: Thank you.

AMO will not support appointees to the conservation authority board from the province. We understand that several conservation authorities have not been functioning well. The power to improve the functionality of any board is unlikely to rest with an “outside” appointment. Perhaps the threat of provincial oversight, as with the Municipal Affairs Act, might be a better route.

In summary, we support much of what is contained in Bill 139. We would just point out in summary the points that we’re making: Keep all provincial land use policies in the provincial policy statement, provide 120 days for second decisions, and delete the reference to regulating the composition of conservation authority board members. Thank you.

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The Acting Chair (Ms. Cindy Forster): Thank you so much. We’ll start with Mr. Hatfield this time.

Mr. Percy Hatfield: Welcome. Thank you for coming in. I was intrigued by your suggestion that back in the 1980s council had a legislative role, and now some people are suggesting that it’s going to be a judicial role. Chair, I’m just wondering whether, at any point, there’s anybody in the audience from the ministry who could clarify that point for us, or whether the ministry at some point—

Interjection.

Mr. Percy Hatfield: You’re going to do it? Oh, I look forward to that.

Mr. Lou Rinaldi: Absolutely.

Mr. Percy Hatfield: All right. I hope it’s all there in your speaking notes, buddy. Okay, so I’ll get that clarified.

But before he clarifies it, your point is that it’s been ensconced in law since 1983 and it should stay that way. Is that the way I take it?

Ms. Lynn Dollin: Yes, MPP Hatfield. Understanding how the changes brought about by Bill 139 would be understood, in light of section 61 of the Planning Act, would avoid answering the question in court. As with other committee hearings, it may be helpful for the committee to hear from municipal affairs legal counsel.

Mr. Percy Hatfield: So at some point—Ken, is that going to be you? Who’s going to do the policy on it? Lou’s going to do it? You’ve briefed him well? I look forward to it.

The other thing we talked about earlier was from the point of the members being appointed having certain expertise as opposed to elected representatives. I think we’ll get to that at some point, but can you remind me of the funding cut that a previous government made to conservation authorities? It isn’t stated.

Ms. Lynn Dollin: MPP Hatfield, I don’t recall the year, but I believe it was somewhere around 1996. I was a relatively new councillor at the time. At that point, most of the funding, as in our submission, came from municipalities. We feel that with that funding should also come the opportunity to be represented and to appoint representatives to the board.

Mr. Percy Hatfield: But previously there was a huge funding cut, as I recall, from a Conservative government that took it, I don’t know, from $50 million down to $8 million or something like that—I’m making up numbers now.

Ms. Lynn Dollin: And that’s when municipalities, to their credit, understanding that conservation authorities and the work they do are important, stepped up to the table and began funding the majority of the work that conservation authorities currently do.

The Acting Chair (Ms. Cindy Forster): Thank you, Mr. Hatfield.

Mr. Percy Hatfield: Thank you.

The Acting Chair (Ms. Cindy Forster): Government members? Mr. Rinaldi.

Mr. Lou Rinaldi: Are you paying attention?

Mr. Percy Hatfield: I’m going to take notes.

Mr. Lou Rinaldi: Good. If you can’t keep up, I’ll give you a copy.

Madam President, welcome. It was a very thoughtful presentation. I want to say thank you for AMO’s commitment to this particular function because it really impacts municipalities. Thank you for all of your support and contributions.

To clarify the question that you asked and to satisfy Mr. Hatfield, I will read to the best of my ability that definition. During your presentation, you raised a concern about proposed reforms and whether council will function as a legislative body or a judicial body. Since 1983, the Planning Act has expressly provided that municipal decisions to adopt official plans and pass zoning bylaws are a legislative decision. While Bill 139 will impact the tribunal’s consideration of appeals of these decisions, there is nothing in the bill that detracts in any way from the existing provision confirming that council is making a legislative decision. I hope that helps clarify your question.

Ms. Lynn Dollin: Thank you, MPP Rinaldi.

Mr. Lou Rinaldi: I’ll pass it on to my colleague. He has some questions.

The Acting Chair (Ms. Cindy Forster): Mr. McMeekin.

Mr. Ted McMeekin: Thanks very much, Ms. Dollin. This was a long and winding road we started down together a couple of years ago, and we’re finally at the point where some substantive changes are being proposed. I appreciate your input.

By the way, I agree with you that there should be one place where all of the provincial policy statements are so as to eliminate confusion. I also like your idea about the 120 days, and I say that because I think this passage of this bill is going to require municipalities to do a lot more work. I’m hoping, and I believe it will come to fruition, that some of the cynicism that we see—citizens vis-à-vis the municipal councils—will be replaced with an enhanced involvement, an enhanced listening and an enhanced taking seriously the concerns, as we shape municipal policies. I guess my question is: Are you ready for that?

Ms. Lynn Dollin: Absolutely 100% ready for that. I can tell you that municipalities go to great lengths trying to engage the public, development interests—everyone in our official plan process. Sometimes that can be a little difficult because people, particularly the members of the public, are a little bit cynical that everything may be overturned anyway, so why bother getting involved at this point? I think that we need to work with everyone to come to a process that’s going to work. That involves the development interests and the public at large.

Mr. Ted McMeekin: Okay. I want to thank you for your years of wise counsel and your stick-to-it-iveness on a lot of issues, your sharing boldly and straight-up with the government your concerns. I appreciated that as minister, and we appreciate that as a government. Thank you very much.

The Acting Chair (Ms. Cindy Forster): Thank you, Mr. McMeekin. Mr. Hardeman.

Mr. Ernie Hardeman: Thank you very much, Madam President, for your presentation. I just quickly want to touch on the legislative and the judicial situation. I appreciate the explanation, but the question becomes: Presently, it’s divided between the municipalities making decisions legislatively and then if I don’t agree with it I can appeal it to the board that is going to hear the hearing. With that gone, who is going to make the legal decisions, as opposed to the legislative ones?

Ms. Lynn Dollin: Well, my understanding is that Bill 139 requires that we follow the provincial policy statement, that we follow our official plan. All of those decisions are done long before. And if the council does not approve something that’s in their own official plan, then it will be appealed.

Mr. Ernie Hardeman: Okay. The other one—I totally agree, and I know my colleague would agree with it—is the appointment of the conservation authority. I think there was some discussion of the fact that if municipalities pay the bill, they should have the say. I think it’s really strange that we would have a system that says that the municipality believes their local councillor should go and represent their interests at the board and the province says, “No, no, no, no, he doesn’t have the right qualifications to do the job; we want so and so. We want someone with these qualifications.” If the people in the area believe that’s the right person, I believe that the conservation authority and the province should believe that, too. So I totally support it.

One of the things that I think we really need to know—first I want to say, the difference. We’ve heard a lot of complaints about the fact that from the development side, the hearings are not a good place to actually bring out the whole story because everybody gets five minutes, and that’s the end of the story. In most of the province that I deal with, they have a much more robust process to hear the applications. I would hope that most of them, as you said, will be ready to take over that responsibility without having to go to the appeal.

I just wondered if you could talk a little bit about the transition. We’ve heard a lot about that. How should that take place? Some people said if everything that’s in the hopper now stays with the OMB, we could have two, three or four years of OMB function still left before we actually got to the ones that are going to the tribunal. What’s your suggestion on the appeal?

The Acting Chair (Ms. Cindy Forster): One minute left.

Ms. Lynn Dollin: Thank you, Mr. Hardeman. First of all, I want to say we have a great deal of respect for the development industry. There’s so much negotiation and engagement with proponents, much before it even comes to the council table, and the staff are quite involved in that, too. Every municipality does it a little bit different. But, as far as the implementation, any implementation date—it doesn’t matter what date you pick—creates extra work. So we see no reason to delay it.

The Acting Chair (Ms. Cindy Forster): Thank you for your presentation.

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[End]

 

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