Mr. Ken Petersen, Manager…

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Mr. Ken Petersen, Manager
Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division
Provincial Planning Policy Branch
777 Bay Street, Floor 13
Toronto, ON M5G 2E5

Re:Comments on Review of the Ontario Municipal Board Public Consultation Document

EBR Registry Number 012-7196


We are pleased to submit comments on behalf of the City of Kawartha Lakes (CKL) in response to the proposed changes to the role of Ontario Municipal Board in Ontario’s land use planning system. A public consultation document was prepared to support the OMB review and provide background information on Ontario's land use planning and appeal system (Appendix ‘A’). The consultation document sets out possible changes being considered to improve the OMB's role within the system.

The proposed changes are intended to:

Allow for more meaningful and affordable public participation

Give more weight to local and provincial decisions and support alternative

ways to settle disputes

Bring fewer municipal and provincial decisions to the OMB

Support clearer and more predictable decision-making

The October 2016 public consultation document identifies 5 key themes for change based on previous stakeholder input. Our comments are therefore structured in a similar manner.

Theme 1 - OMB’s Jurisdiction and Powers

The review has identified the following areas where the OMB’s jurisdiction and powers could be revised to focus the scope of matters that the OMB should be involved with.

•Protecting public interests for the future by limiting some appeals;

•Bringing transit to more people by limiting certain appeals;

•Giving communities a stronger voice by limiting certain appeals, expanding the authority of local appeal bodies, clarifying a limitation on the OMB’s authority, and identifying obligations for the OMB;

•Considering options that move away from de novo hearings; and

•Obtaining views on when new rules should apply to planning matters in progress.

CKL Comments

We offer the following comments on this theme.

•Local implementation of matters of Provincial Interest should not be appealable and any appeal submitted on this basis should be dismissed by the OMB. This includes decisions by local government that implement Provincial Plans and approved official plans.

•De Novo hearings require a large amount of preparation and should be eliminated altogether, and the board should receive all relevant materials considered by the municipality in the decision making process. Where new materials are brought before the OMB, these should immediately be referred back to the Council for a decision.

•While the provision of transit is a matter of Provincial Interest, limiting appeals of development that supports the use of transit is not recommended. This type of development may not necessarily reflect the highest and best use, or be the most desirable form of development. Municipalities should have the right to plan areas for appropriate densities and limit development impacts on the abutting neighbourhoods.

•Appeals related to a municipal interim control by-law should not be permitted. Municipalities should be permitted to conduct the necessary studies related to the issue under review. There are sufficient timelines in the Planning Act governing the length of time that such a by-law may be used to limit development under this circumstance.

Theme 2 - Citizen Participation and Local Perspective

The review has identified the following points to improve the level of citizen participation in the OMB hearing process.

•Increasing public education opportunities on OMB practices and procedures, and proposing a new user-friendly website; and

•Considering options to encourage citizen participation and to generally improve the OMB experience to ensure local perspective is heard, such as expanding and/or reconfiguring the Citizen Liaison Office, and exploring funding tools to help citizens retain their own planning experts and/or lawyers.

CKL Comments

We offer the following comments on this theme.

•CKL supports the creation of a new user-friendly website, including improved search engine tools, electronic availability of all documentation before the OMB, and interactive mapping identifying parcel fabric of properties under appeal.

•If the objective of the OMB reform is to make dealing with the OMB “welcoming and not overwhelming nor intimidating”, there should not be a need for costly planning experts and/or lawyers. The public has difficulty in participating in large and costly “de novo” hearings. Limiting the scope of these hearings would allow more public access to the process and realize financial savings for municipalities.

Theme 3 - Clear and Predictable Decision-Making

The review has identified the following improvements for clear and predictable decision-making. •Increasing the number of OMB adjudicators and increasing training for adjudicators to ensure they possess the necessary skills; and

•Considering options for multi-member panels.

CKL Comments

We offer the following comments on this theme.

•Board members should have a standard list of qualifications, which includes a legal and/or planning background. A benchmark for minimum years of practice should also be established to prevent the appointment of members that are less qualified.

•Board members should not be ‘cross-appointed’ to other tribunals and should solely be dedicated to the caseload before the OMB. This ensures that the OMB has the necessary human capacity to adjudicate the matters before it.

•Multi-member panels would be beneficial in complex hearings, where expertise in a number of areas would be required and where hearings were expected to extend beyond a certain threshold, such 4 to 8 weeks. Multi-member panels would not be necessary in straightforward applications.

•Board members should be seized once assigned to a particular file to avoid wasting resources by introducing a new member. This can cause unnecessary and costly delays to all parties involved.

Theme 4 - Modern Procedures and Faster Decisions

The review has identified the following areas where the OMB’s procedures should be modernized to ensure more timely decision-making.

•Promoting a less formal and less adversarial culture at OMB hearings by considering changes to allow the OMB to adopt less complex and more accessible tribunal procedures, and allow active adjudication; and

•Considering ways to modernize procedures and promote faster decisions, including: setting appropriate timelines for decisions, increasing flexibility for how evidence can be heard, conducting more hearings in writing in appropriate cases, establishing clear rules for issues lists to ensure that hearings are focused and conducted in the most cost-effective and efficient way possible, and introducing maximum days allowed for hearings.

CKL Comments

We offer the following comments on this theme.

•Hearings should be held in less formal locations, such as a boardroom rather than Council Chambers. This would improve the public’s comfort level with the process.

•Timelines for decisions should be concrete. The Board should set realistic timeframes and ensure that deadlines are met by all parties.

•Hearings should be scheduled within 30 days of receipt of a complete appeal package. The Board should set a target completion date at the outset of scheduling.

•The OMB should set minimum standards for the submission materials associated with appeals. The standards would depend on the scale and complexity of the matter subject to an appeal. Where these minimum standards are not met, appeals should be refused by the OMB. This could help to dissuade frivolous appeals and would free up OMB resources for legitimate matters.

Theme 5 - Alternative Dispute Resolution and Fewer Hearings

The review has identified the following areas where the alternative dispute resolution (ADR) could be used to achieve fewer hearings and more efficiently use the OMB’s resources. ADR could be used to encourage more land use disputes to be resolved through:

•More actively promoting mediation;

•Requiring all appeals to be considered by a mediator before scheduling a hearing; •Allowing government mediators to be available at all times during an application process, including before an application arrives at municipal council, in order to help reduce the number of appeals that go to the OMB;

•Strengthening case management at the OMB to better scope issues in dispute and identify areas that can be resolved at pre-hearings and to further support OMB members during hearings; and •Creating timelines and targets for scheduling cases, including mediation.

CKL Comments

We offer the following comments on this theme.

•Appeals should be screened prior to scheduling a hearing, to determine the merit of the appeal at the outset. Appeals should expressly state the reason for the appeal, citing valid planning reasons.

•Appeals should only be permitted if the decision by municipal council is not consistent with the Provincial Policy Statement (PPS), or not in conformity with other Provincial Plans. •Applications without substantive information and planning reasons for a hearing should be dismissed without a hearing.

•Once an appeal is deemed to have merit, mediation should be a mandatory requirement. This would help to focus the issues germane to the hearing.

•The mediation process should be available at any point in the municipal planning approval process, through a Council motion.

Additional CKL Comments

The following comments offered below do not necessarily align with the 5 themes but are important in the City’s context.

•The preparation of appeal packages is a costly and time consuming activity. The timeframes by which appeals should be sent to the OMB should be increased to 30 days rather than 15 days. This provides additional time to assemble often complex or multiple appeal packages for the Board. •While we recognize that the OMB appeal fees were recently increased, they should be increased further recognize the complexity of the application. For example, appeals for official plan amendments should have the highest fees while appeals for minor variances could remain at the current fee. Higher fees may also provide a deterrent to some frivolous appeals. •Municipalities should be permitted to charge a similar fee for preparing the appeal packages on behalf of the OMB. This would assist in the cost recovery associated with this function.

The City generally supports the proposed directions outlined in the ‘Review of the Ontario Municipal Board: Public Consultation Document’. While the City recognizes the effort that has been made, we continue to request that further consultation and review be sought. The City also supports the position present by the Association of Municipalities Ontario since it outlines many of the common issues faced by municipalities with OMB appeals and process. Again, thank you for the opportunity to participate this review.

Yours truly,

“original signed by”

Chris Marshall, MCIP, RPP
Director of Development Services

[Original Comment ID: 207230]