Trouble at the Ontario Municipal Board – article by David Godley of Long Branch (Toronto)

An April 2014 report, among others ones by David Godley at this website, can be accessed here.

The following article has been written by David Godley.

I have added the headings, to ensure ease of reading in the online environment.

Trouble at the Ontario Municipal Board

According to Toronto Councillor Mary Margaret McMahon O M B are “the scariest 3 letters known to humankind” and Toronto Councillor Pam McConnell calls the OMB “The kiss of death”. Quotes were in a story carried by the Toronto Star on June 23 2012. Oddly this article was front and centre on OMB Chair Mary Anne Sills’ Facebook page.

There were recently two initiatives to rein in the OMB.

One was Bill 20, a private member’s bill introduced by Rosario Marchese NDP MPP. The initiation of the bill had all party support and public hearings were held. The aim was to remove the City of Toronto from all jurisdiction of the OMB. No replacement was specified but presumably it would be a Local Appeal Board.

Just before the defeat of the recent budget and the Provincial election of June 2014, the bill was defeated at Committee with the Conservatives voting against and the Liberals abstaining.

City of Toronto initiative

The other initiative is by the City of Toronto. This entails all Committee of Adjustment applications (such as minor variances of zoning and severances) being dealt with by a Local Appeals Board appointed by the City. This would put the appeal decisions closer to locally elected representatives. However possible pressure on Local Appeal Board members might be applied. A completely independent board is required.

Profit generated from development and especially amending planning rules is the new alchemy. Toronto is the fastest growing metropolis in North America so the scope for greasing palms is at a maximum. The Municipal level of Government is by far the most fruitful for any such dealings.

However a significant proportion of City Council members wanted to eliminate the OMB from Committee of Adjustment matters. This is permitted under Ontario’s Planning Act provisions. The new provision is going through the City of Toronto processes.

In 2010 the OMB approved the Waterloo Official Plan with more suburban sprawl than the Region had adopted. For some reason the Province had previously given away their right to counter OMB decisions under the Planning Act. Both the Province and the Waterloo Region have appealed to the Divisional Courts on legal matters.

At OMB Chair Mary Anne Sills hearing in July 2013 (a severance in South Long Branch) she would not allow the appellant, a local resident to give his evidence and suggested his wife do it. I have a legal interpretation that this is unfair practise. This is being drawn to the OMB’s attention by members of the legal profession. As well she told members of the community that their input did not really matter since there was expert evidence.

OMB never responded

After the hearing I alerted the OMB to this apparent mistake of denying the appellant the chance to give evidence. The OMB never responded. They rendered a decision in October 2013. There appeared to be a number of errors which I drew to the OMB’s attention in the hope they could improve future decisions. Lack of meaningful feedback eventually led to my complaint to the OMB.

To help put the matter in perspective I reviewed recent severance decisions in the Neighbourhood of South Long Branch for the OMB’s benefit. I reached the following conclusions and found the OMB was:

1) making decisions which are wildly inconsistent.

2) making decisions that are dependent on the prejudices of the hearing officers.

3) making decisions that ignore the current legal basis from Divisional Court on De Gasperis.

4) making decisions which do not follow the Planning Act.

5) making decisions without understanding the relationship between the Official Plan and Provincial Policies.

6) making decisions without understanding the Official Plan policies.

7) making decisions without basic knowledge of urban design, neighbourhood character or how to measure it.

Unfair decisions

My overall conclusion was that the OMB was making unfair decisions, undermining the Official Plan and was destroying neighbourhood character.

I suggested an internal review to look at more OMB Chair training, checks on decisions for consistency with other decisions and internal legal review of decisions before being issued.
In November 2013 I specified failings of the Chair Sills decision as follows:

1. Errs in not taking account the principles of the Divisional Court ruling in the De Gasperis case (variances must be minor in nature as well as impact).

2. Errs in not correctly applying the relationship of planning policy hierarchy especially the Provincial Planning Statements (PPS) with the City’s Official Plan.

3. Errs in not linking the “character area” analysis to “neighbourhood character”.

4. Errs in not considering zoning as required in Section 51 of the Planning Act.

5. Errs in not addressing uncontested expert planning evidence.

6. Errs by giving no weight to the evidence of those impacted most – the nearby residents.

7. Errs by not considering how the principles and premises used for the current application could impact future development.

8. Errs by making judgments based on minimal information from a limited perspective.

Ontario Ombudsman

The OMB has responded to my complaint without any specifics and an assurance by that they have complete confidence in their system and the particular Chair. The matter is now with the Ontario Ombudsman who is currently collecting facts and reviewing the situation.

So why are key people fed up with the once respected OMB which has a long and distinguished history until recently. The answer appears to be too much political interference.

Premier Harris appointed a number of OMB members who had development oriented biases but most of them tried to give fair decisions. More recently decisions have come down from OMB Chairs appointed in the Premier McGuinty era where it feels as though the OMB have been told to approve applications for development if they can find a way. They have found ways to avoid the Planning Act, the Official Plan, the zoning and evidence from the community and municipalities. Certainly some OMB members give well balanced decisions. The situation now is that the result of a decision can pretty well be judged by which OMB Chair officiates.

April 2014 Annex Gleaner article by Rosario Marchese (see below)

An article in the Annex Gleaner from April 2014 (below) suggests some OMB decisions are a result of politicking. The building and development industry make significant contributions to the Ontario Conservative and Liberal Parties. Premier Wynne promised to review planning matters including the OMB practices and procedures. Apparently after Minister of Municipal Affairs and Housing, Ms. Jeffrey met with the building and development industry, the OMB was eliminated from the planning review.

Whatever the political situation, there is trouble at the OMB. This issue will not go away. There is now the opportunity for the new Liberal Government to wipe the slate clean and make the OMB transparent and respected again.

One issue is that we need a better way to appoint OMB members rather than political reward. Appeals should be decided by knowledgeable people with analytical minds known for their fair dealings and ethics. This should preferably be at the Provincial level removed from the hurly burly of municipal politics.

Fairness, consistency and due process

One way to improve fairness, consistency and due process would be to revise the appointment process of new OMB members. Take a leaf out of Provincial judge appointments and have a panel of experts, especially planners and lawyers and the community select a number of suitably qualified applicants leaving the final and narrower selection to be made at the Provincial political level. This idea along with many others that have been put forward needs urgent review, with full community participation.

Over to you Premier Wynne – a chance to fulfill a promise.

David Godley June 2014

An edited version of this article was originally published in the April 2014 edition of the Annex Gleaner.

 

Addendum:

 

The OMB is NOT above politics: April 2014 Gleaner Annex article by Rosario Marchese

Article by Rosario Marchese, [now the former] MPP Trinity-Spadina

In 2007, the Toronto Star reported on a minor civil war that had erupted within the Liberal caucus over who would replace Dave Johnson as chair of the Ontario Municipal Board, the unelected planning authority with the extraordinary power to rewrite policies enacted by democratically-elected governments.

Johnson was a former Progressive Conservative MPP who was voted out of office in 1999. Premier Mike Harris gave him the OMB chairmanship as a consolation prize, despite Johnson’s lack of a law degree or professional planning credentials.

Marie Hubbard

According to the Star, the Liberal caucus was torn over whether to replace Johnson with interim chair Marie Hubbard, another former politician with Tory ties, and a Mike Harris appointee.

Like Johnson, she too lacked legal and planning credentials. But she had the backing of the powerful Greater Toronto Home Builders’ Association, a developers’ lobby group.

Hubbard was eventually confirmed, thanks to the support of two powerful allies: Premier Dalton McGuinty and Vaughan MPP Greg Sorbara, chair of the Liberal re-election campaign and a former partner of the influential development firm, the Sorbara Group.

And by the way, during the election campaign later that year, the GTHBA donated $10,000 to the Ontario Liberal Party, up from $0 the year before.

Development and construction industry

The development and construction industry is by far the biggest contributor to political campaigns in Ontario, donating well over $2 million to political parties in the run-up to the last provincial election. The Progressive Conservative Party collected about 58% of this, and the Liberals collected 39%. The NDP collected just over 2%.

The development and construction industry is also a big fan of the OMB.

The GTHBA, now known as BILD, argues that “the OMB provides an impartial, independent, adjudicating tribunal that is removed from local political pressures.”

BILD’s true commitment to an impartial planning system removed from local political pressures was demonstrated recently when Toronto’s lobbyist registrar found that BILD had illegally fundraised for Mayor Rob Ford, and recommended that BILD not lobby the mayor or his staff for the remainder of the term.

An Eye Weekly article from 2000 describes how the politicization of the OMB went into overdrive under the Mike Harris Tories. With members appointed for three-year terms, job security is non-existent. And according to the former OMB members quoted in the article, Harris was ruthless about purging members who did not fall in line with his pro-development agenda.

“The fear was palpable,” said one former OMB member. “Everyone knew what was expected. You could see they would do almost anything to get reappointed.”

Queen West Triangle

One OMB member that passed muster with Harris was Donald Granger, a former mayor of Flamborough who had been very active with the Tories before entering municipal politics. His controversial 2007 ruling in the infamous Queen West Triangle case gave developers everything they asked for, killing the City of Toronto’s plans for a vibrant, mixed-use community that preserved employment lands.

OMB rulings are exceeding difficult to appeal, but in this rare case, the Superior Court of Justice found Granger’s ruling to be “devoid of any discussion of the Planning Act, Provincial Policy Statements and the City’s Official Plan.”

“OMB … makes its own rules”

I have said it before: the OMB does not exist to uphold the rules; it makes up its own rules.

Last year, I introduced Bill 20 to set Toronto free from the OMB and put local land use and planning policy back into the hands of our locally elected government. It passed second reading, and this month advanced to committee hearings.

The bill has brought new attention to the unelected and unaccountable OMB. In August, municipal affairs minister Linda Jeffrey promised reforms.

Evidently alarmed, BILD quickly summoned Minister Jeffrey to a meeting, where 400 developers and builders warned her to leave the OMB alone, and to instead focus on reducing costs like development charges, Section 37 money and parkland dedications.

Section 37 money

And wouldn’t you know it? One month later, Jeffrey announced a land use planning review that excluded the OMB, and instead focused on development charges, Section 37 money and parkland dedications.

The decision to exclude the OMB from review provoked a furious response from former Mayor of Toronto John Sewell. “Pretty pathetic,” he wrote.

Meanwhile, the current government continues to choose appointees with a focus on their political affiliation, but not necessarily their skills or credentials. The current roster of OMB members includes former riding association presidents, politicians and failed candidates. Evidently, no law degree or planning experience is necessary.

BILD says we need to get partisan politics and short-term interests out of Ontario’s land use planning system. I agree. Let’s start by reforming the OMB.

[End of April 2014 article in Annex Gleaner]