Hansard excerpt (4): Building TO Inc. 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 Building TO Inc.

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 Building TO Inc. presentation

At 4:00 p.m. Stephen Diamond of Building TO Inc. spoke first; the second speaker was Jack Winberg.

Steve Diamond notes that for the last ten years he has been involved with real estate development.

Notes he and colleagues are in the business of providing housing. “We are,” he says, “the voice of the people that don’t have a home.”

He adds that he has used OMB for only two days.

Diamond notes that the question is: How will the proposed legislation operate in reality? Wants to ensure a proper forum is in place, where issues can be properly addressed.

Says Toronto is considered one of best-planned cities in the world, and that OMB has acted as a watchdog to test policy decisions. “You’ve removed the watchdog,” Stephen Diamond adds.

“I have to deal with these issues on a daily basis.”

Notes Toronto has 47 Councillors [reference appears to be to the number that would be in place if the current numbers are increased from 44 to 47, as discussed a year ago, as noted at a Nov. 9, 2016 Toronto Star article].

Notes all Councillors work at the Committee level, where persons making deputations have only five minutes to speak. Adds that the opinion of the Ward Councillor prevails, and that courts have ruled that a fair hearing at the local level is not required, because the option of the OMB appeal process exists.

Says local representatives are well-meaning but not equipped for a well-reasoned decision-making process.

Adds that the Regulations have not yet been seen and that Municipalities need time to adapt to these changes. Otherwise, there will be chaos in the provision of houses. How will procedural fairness be ensured?

Jack Winberg, also speaking on behalf of Building TO Inc., notes that significant changes are being made. Refers to contentious development applications. “The fact is,” he says that a fair hearing is provided by the Board” [that is, the Ontario Municipal Board].

Refers to a need for a “fair and proper process.”

Notes the developer [at City of Toronto Committee meetings, referred to above] has only five minutes to speak, and “has no chance to respond to wild statements” [that may be a paraphrase; the definitive wording will be in Hansard].

Notes Councillor must spend more time on hearings. Recommends that hearings be held on what is appropriate for a given Municipality, before the Rules and Regulations, related to Bill 139, come into effect.

Q & A

Q: A question is asked about past interactions with OMB.

 A: It is noted that developer has only been to OMB once, in a situation were Ratepayers “were not happy.” Notes the City had no objection to the application in question. Refers to a Post Office repurposing project.

Q: Question regarding whether it is possible to work things out within the current structure.

A: We can accomplish our objectives because everybody knows there’s a place that offers an “unbiased” and “open and transparent forum” [the quotes refer to the answer, by Stephen Diamond, to the question] where “issues can be addressed.”

Q: If a Ratepayer speaks, “someone will have oversight,” in the system currently in place. With the new system, the oversight is not there. The ability to compromise is taken away.

A: The legislation “must broaden the rights of appeal.” Adds that [if my notes are correct; this must be cross-checked again Hansard] height and mass are not grounds for appeal.

Q: How many houses have you built?

A: Thousands.

Q: How many are affordable?

A: A proportion. Maybe 10 or 15 per cent.

Q: Can you not make written submissions?

A: At Toronto City Hall, it’s not the same. Refers to OMB as a “transparent and open forum” where everyone is on their toes.

Q: As opposed to following of the Official Plan: Doesn’t that [following of the Plan] make sense?

A: [Stephen Diamond:] No. There’s no longer appeals on the Official Plan. Say the Municipality says there will be no Non-Profits involved in a development. The Planning Department [not clear which Planning Department is referred to; Hansard will include this detail] knows there’s a place to go to, if there is a lack of fairness.

Q: Is it possible that, with the changes, developers would work more collaboratively with Municipalities?

A: There are good things in the Bill. Mediation is a great idea.

Our concern is with details of the implementation.

Also: OMB encourages people to be reasonable. That’s what makes the thing so successful.

Q: Is OMB being used to build very high-density buildings?

A: That potentially has happened. Refers to a case that went to OMB and then mediation. Another case involved a Provincially-funded Non-Profit.

Please note: The Q & As are paraphrases of what people said; please refer to Hansard (below) for the word-by-word, direct quotations

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Below is the Hansard transcript of the same presentation

The Acting Chair (Ms. Cindy Forster): We will now move on to Building TO Inc.: Stephen Diamond and Jack Winberg. You have 10 minutes for your presentation. Please state your names for the record.

Mr. Steve Diamond: Thank you very much, Madam Chair and members of the committee. We appreciate the opportunity to be here. My name is Steve Diamond. By way of background, I practised municipal law for about 30 years. The last 10 years, I’ve been a real estate developer and am president of a company called Diamond Corp. With me is Jack Winberg, who also has a legal background and practised for many years as well and runs a company called the Rockport Group. We intend to each speak for approximately five minutes, if that is acceptable to the committee.

I should also add that Building TO Inc. is a group of 20 of the most responsible developers in the province who have come together to meet on various issues regarding this particular bill.

I would like to start off by acknowledging, right from the outset, that as developers we are certainly in business, but the business that we are in is the business of providing housing for the people of the province of Ontario. In light of the enormous influx of people that has been anticipated and is required to be accommodated over the next 10 to 15 years, while there’s a lot of resistance from existing communities to development, we are the voice of the people that don’t have a home. Our companies represent those people that need a home, and so we are working to ensure that there is an adequate supply of housing so that there will always be affordable housing, and an adequate supply of housing is also critical to companies making economic investments in the province and in creating new employment opportunities.

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Having said all that, I also wish to add that our company takes great pride in its ability to work with citizens, city staff and municipalities. We have processed approximately 15 million square feet in the last 10 years, and we have utilized the Ontario Municipal Board for only two days.

We also recognize that any institution, such as the OMB, can always be improved and made better. It is not my intention today to criticize or critique in any detail the substance of Bill 139 that is before you. Our concern—being the ones that have to deal with the outcome of the bill—is really with respect to one issue, and that is implementation. We are concerned that enough thought has not been put into the consequences of the legislation and how it will operate in reality.

Just very briefly, just to give you some idea of the type of concern that we have, the bill is quite dramatic in that it limits the rights of appeal, not only of developers but all citizens of the province of Ontario, when land use matters are concerned. For example, if a municipality today passed an official plan amendment—say, in the city of Toronto—that said, “We want on a strip of land”—on an avenue, as they call it—“six-storey buildings that are going to accommodate housing for people of the future,” but we in the industry know that six-storey buildings may not work, we want to ensure that there’s a proper forum—because we can’t go to the OMB anymore—to make sure that those issues can be properly tested.

Who is going to ensure, under this system, that applications will be dealt with on a timely basis? That also contributes to the cost of housing. Our region and the city today is considered one of the best-planned areas in the world, and yet the Ontario Municipal Board has been around for over 70 years and has been part of that process. Even though our company has not gone to the Ontario Municipal Board—very rarely, in fact—it has acted as a watchdog and provided an open and transparent forum to test policy decisions. Our concern is: How is that responsible decision-making going to take place at the local level in terms of the implementation of this bill?

The problem and the issue that confronts us is that you have removed the watchdog over municipal policy but you haven’t replaced that tension that exists in the process to ensure that there will be responsible decision-making at the local level.

I have to deal with these issues on a day-to-day basis and it’s particularly complicated because we live in a ward system. Most of my work is done in the 416 area, and there are 47 councillors. One has to understand that no one is allowed to speak directly to council. All the work is done at the committee level, and deputants are only allowed five minutes to speak. We could have a billion-dollar project and have five minutes to convince someone that our project is worthwhile. It’s also clear and apparent that the ward councillor’s opinion is what usually prevails.

If the intent and purpose of the bill is to eliminate these rights of appeal, how is the system going to function in reality? We just want to make sure it’s going to work. Under the current regime, the courts have ruled that a municipality does not have to hold a fair hearing at the local level, because a right of appeal exists to the OMB. I am very concerned that there may be a myriad of court challenges as we go through—what is the hearing process that’s going to take place at the municipal level? And even if the courts were to say tomorrow morning that, “You know what? The cities don’t have to hold a fair hearing,” is that really the result that we want to achieve in planning for the future of the province of Ontario?

I truly believe that our local representatives at the city level are extremely hard-working and well-meaning individuals, but I do not believe that they are equipped today with the necessary support and infrastructure to ensure a well-reasoned and responsible decision-making process.

We have not seen any of the regulations that are intended to go hand in hand with this bill, which we think are important to ensure that this bill can be properly implemented.

My view is that if Bill 139 is going to proceed, we believe that our municipalities need the time to adapt to these dramatic changes. The failure to do so could lead to chaos and a lack of affordable and market housing in the province. We believe that if the province is going to proceed, we must clearly establish, either in the legislation or regulations, how the concept of basic procedural fairness is going to be determined to be implemented at the local level to ensure that we will have an adequate supply of housing.

I turn the floor over to my friend.

Mr. Jack Winberg: I’m conscious of the time, Madam Chair, but I thank you and the members of the committee for hearing us today.

You’ve heard from many others about the substantive changes that are presented by the bill. Just so it’s clear, I want you to know that we do support them, particularly OHBA, BILD and the advocates for reform. As well, I was very impressed by the presentation made by the woman on behalf of CELA. They raised very important questions. But as my friend Steve has said, we’re here to ensure that you and the legislation understand that you’re making very significant changes to the planning process, and that you have to be cautious and careful to make sure that the resources are available to municipalities when it comes to the new world.

For example, we know that many of you were mayors or members of local council. You know there are few issues on the municipal scene that can generate as much interest or engender as much of a potentially chaotic process as a contentious development application. We do hope that you realize that a lot of what allows that to go on and not be criticized is the fact that a fair hearing is provided by the board. When you take that board away and the ability for that board to hold the de novo hearings, as has been mentioned, you pose a real risk but, more importantly, you impose a huge burden on the municipality to make sure that there will be a fair and proper process.

For example, under the current regime, it’s acceptable for an applicant who has got a very substantial project providing housing for people—he only gets five minutes before the committee to make his presentation. People can stand up and make hysterical or wild remarks. He doesn’t get a chance to respond to them. Very often, the record doesn’t reflect very much of what took place. This is all going to have to change under the new legislation.

Going forward, our municipalities are going to have to accommodate fuller hearings. They’re going to have to compile more complete records. The councillors who are charged with making the decisions are going to have to attend much longer hearings, and they’re not going to be able to get up, go and come back, because if they’re going to make a fair decision, they’ve got to hear it all.

One thing is for sure: Our municipalities are going to have to devote much more of their limited resources to the planning process, and these are not trifling matters.

We therefore recommend, given the diversity of the municipalities in this province, that the legislation, once the regulations are done, require that council hold public consultation on the process that’s appropriate for that community, pass a bylaw setting out what those procedures are going to be, and get those procedures approved to the minister prior to Bill 139’s rules and regulations coming into effect in their municipality.

These are important matters, and we urge you to take them into consideration. We’ve got to get it right.

The Acting Chair (Ms. Cindy Forster): Thank you so much for your presentation. We’ll move to the official opposition. Mr. Hardeman.

Mr. Ernie Hardeman: Thank you very much for your presentation. I just wanted to check: You mentioned the appeals going to the Ontario Municipal Board now. Did you mention what percentage of your applications for your developments have to go to the board for an appeal as opposed to being settled locally?

Mr. Jack Winberg: I did this for 12 years as a lawyer—I spent most of my time at the OMB—and I’ve been 30 years a developer. I’ve developed all over the GTA. I’ve only been to the OMB once, and that was on a file in the city of Toronto where the city and I agreed on the development, but the ratepayers were not happy that the city supported it.

We take great pride in consultation and community involvement. I can tell you, for example—I’m the developer of the old post office at Yonge and Eglinton. One of your colleagues led a protest the day that Canada Post sold it to me, to make sure that we did a proper job. When we got it approved, we had the presidents of the five ratepayer associations in our community come to community council and support our plan. We did a plan and we did it right. But the fact that the OMB existed is an important part of the whole process, because we did a good job, and everybody knew it.

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Mr. Ernie Hardeman: Well, it was kind of a loaded question. If you’re able to work it out under the present structure locally, why do you envision that a much more robust planning structure is created locally if most of it is already done under the present structure?

Mr. Steve Diamond: I think what we’ve been trying to say is that the reason we are able to accomplish our objectives is because everybody knows—city planners, residents, politicians and developers know—that there’s a forum you can go to that’s unbiased, provincially appointed, where if anyone is aggrieved, whether it’s a ratepayer or a developer, there’s a hearing in an open and transparent forum where your grievances can be heard. As a result, that keeps everybody on a fair, even, level process going through the municipal process.

Mr. Jack Winberg: It’s even more than that. When a planning staff member writes a report, he knows that somebody like an OMB may read that report. It gives him caution when he writes it. He writes it carefully. When a ratepayer makes an objection, his objection is tempered because of the fact that there’s going to be somebody independent who is going to listen and say, “Wait a minute. That’s not right.”

What you’re doing by taking the ability for the board to have that review process is that you’re taking away that tension and that oversight, the ability for people to temper their remarks and, as well, their willingness to compromise, because they can take wild positions and they’re not accountable for them.

Mr. Ernie Hardeman: With that, what would we need to change through the committee with amendments to the tribunal to make it not as cumbersome as what the OMB is, but to actually create a tension in the system that would work?

Mr. Jack Winberg: Well, the first thing is that you’re going to have to broaden the rights of appeal. Most of you know—certainly members of council will know—that usually the biggest concerns that people have about a development are its height, its shadow, what it looks like, the number of units it’s going to be, the traffic. Well, none of those items are grounds for appeal going forward, and, believe me, none of those items are referred to in very many official plans around the province, so—

The Acting Chair (Ms. Cindy Forster): I’m sorry. I’m going to have to cut you off and move on to Mr. Hatfield. Maybe you can finish your—

Mr. Percy Hatfield: Thank you, Chair. Mr. Diamond, I think you said you’re the voice of the people who don’t have a home. How many homes have you built over your career?

Mr. Steve Diamond: Thousands.

Mr. Percy Hatfield: And how many of those would you consider to have been affordable homes?

Mr. Steve Diamond: A good portion.

Mr. Percy Hatfield: Were they rent-appropriate or rent-geared-to-income?

Mr. Steve Diamond: A portion of them have been affordable and sponsored by the province.

Mr. Percy Hatfield: What portion? What percentage?

Mr. Steve Diamond: I’d have to go back and check, but maybe 10% or 15%.

Mr. Percy Hatfield: Thank you.

You talked about only having five minutes to speak. Does that mean you’re not allowed in advance to submit written submissions so the councillors would have read everything about your development?

Mr. Steve Diamond: Not necessarily. That’s one of the things we want to make sure of: that you are allowed to make written submissions and that they are going to be read by individuals. I’d love to take you down to city hall. This committee is very polite, and everybody is here and paying attention. That’s not the way it works, because of the volume of work that is down at that municipal level.

I’m not trying to argue with your bill, sir; I’m just trying to make sure it works, so—

Mr. Percy Hatfield: I appreciate that, and I’m not trying to argue with you, either. I’m just trying to figure it out: You built all of these homes, and you’ve only had five minutes to make a presentation, and yet you’ve only been to the OMB once or twice. So you must be getting pretty well what you want.

Mr. Steve Diamond: We’ve been doing that, sir, because—what I’m trying to explain is that because everybody knows that there is that forum that is transparent and open that you can go to in the event that there is a dispute, it keeps everybody honest throughout the entire process.

Mr. Percy Hatfield: As opposed to, if you follow your official plan and hold your public hearings and your official plan gets approved by the province, then, unless you’re in contradiction of that planning process—then there’s an appeal. But if you haven’t violated that planning process and everything has been in lockstep for five or 10 years to develop the plan, doesn’t that make sense as well?

Mr. Steve Diamond: No, and the reason it doesn’t make sense is: If you allowed appeals on the broad structure of an official plan, it would work. But the problem with the current system that you have is that you’ve said there are no longer appeals on official plans.

Let’s take affordable housing, for example. What if a municipality passes an official plan that there shouldn’t be any affordable housing in Rosedale? What are we going to do about that? What’s going to happen to the non-profit housing user who comes to council and wants a site-specific official plan? What causes the planning department to be objective is that they know now that if everyone is not dealing with the application fairly there is a place to go.

The problem is that in the new system there isn’t a place to go. What we need to do is look at the way the system—if we’re going to put things down at the local level, how are we going to make sure that that responsible decision-making will take place under the process? That’s what we’re worried about.

The Acting Chair (Ms. Cindy Forster): Thank you. We’ll move on to the government member. Ms. Malhi.

Ms. Harinder Malhi: Thank you for your presentation. As we’ve heard, you’ve both had very long and successful careers advancing development and building in the housing community through the OMB. Is it possible that proposed changes could encourage developers to work more collaboratively with municipalities and local communities?

Mr. Steve Diamond: I was just going to say that I think there are a lot of really good things in the bill. That’s what we said. I’m not here to trash Bill 139. I think some of the things are very positive.

The idea of mediation is a great idea. I think there should be mandatory mediation. I think that those types of concepts should be excelled. I also believe that amendments to the act where developers can leap over the municipal process and go to the board today are wrong. Those are problems that this bill will achieve. I think there are many positive benefits that have been put forward, as the province has put forward many affordable housing programs in the last year that have also been terrific for the people of the province. Our concern is when you get to the other parts of the bill, in terms of the detailed implementation; we could be doing a hardship.

Mr. Jack Winberg: And I think you’re also underestimating the importance that the existence of the board is there to support the collaboration and to encourage the collaboration and to encourage people to be reasonable and to understand the other side’s point of view. The possibility, the concept that there could be a day when you have to present your position in public in front of an independent tribunal is what makes the collaboration and the consultation and the mediation so successful. You’ve taken that element of the negotiating process away by removing the de novo hearing before the OMB on a broad range of good planning issues.

Ms. Harinder Malhi: Is it possible that the current approach to development and the role of the OMB has inflated location-specific land values by making it easier for developers to maximize height and density at certain locations by the OMB, with OMB approvals? Because the city or the municipality may not want them to be high density, but because of laws and specifications, is the OMB being used to an advantage, to make sure that we can build high density at certain places where the community might not want—

Mr. Steve Diamond: I think that’s what potentially has happened. The one time that we did end up at the Ontario Municipal Board was when we were sitting with a piece of land that was on top of a new transit station. The city planning department had actually strongly recommended the project but the local municipality was having some difficulties with it. It ended up being referred to the board and it actually went to mediation and it got resolved, and that was our one-day hearing. But if it wasn’t for the board, that particular number of units being built on the subway line may not have ever been approved. In fact, the one other case we did have at the Ontario Municipal Board was actually involving a provincially funded affordable housing project in Scarborough that had to go to the board. Those were the two.

The Acting Chair (Ms. Cindy Forster): Thanks so much for your presentations.

Mr. Steve Diamond: Okay. Thank you very much for your time.

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