Honourable Bill Mauro…

Honourable Bill Mauro
Minister of Municipal Affairs & Housing
777 Bay Street, Suite 425, 4th Floor
Toronto, Ontario
M5G 2E5

Honourable Yasir Naqvi
Attorney General of Ontario

Dear Minister Mauro & the Honourable Yasir Naqvi,

RE: Reform of the Ontario Municipal Board

The Township of Severn is very supportive of your initiative to examine reforms to the Ontario Municipal Board. While the Board plays a critical role in ensuring that all planning applications are given a thorough review and that they appropriately address planning policies generated at the provincial and local levels, the way in which Board proceedings take place are overly cumbersome and do not always appropriate reflect the outcomes of the democratic process at the local level.

The attached staff report which has been endorsed by my Council provides a perspective from our Municipality on the various reforms currently under consideration. I hope that the process which you have initiated will be continued through a dialogue with stakeholders, particularly municipalities who are responsible for the on-going consideration of planning applications.

Sincerely,

Michael Burkett, Mayor

c. L. Clay, Assistant Deputy Minister

REPORT P16-057

TO: Chairman & Members

Planning & Development Committee

FROM: Andrew Fyfe

Director of Planning & Development

DATE: November 9th, 2016

RE: OMB Reform

Recommendation

THAT Planning Report No. P16-057 dated November 9th, 2016, with regard to OMB Reform be received;

AND FURTHER THAT a letter summarizing the Township’s concerns be prepared for the Mayor’s signature on behalf of the Municipality and forwarded to the Minister of Municipal Affairs and Housing for his consideration.

Background

As part of its program of reviewing and revising planning policies and processes, The Provincial government has embarked on a review of the Ontario Municipal Board (OMB). To this end, the Ministry has released a “Public Consultation Document” which provides some background, outlines areas of concerns and puts forward some potential changes for discussion (Appendix 1).

The OMB is an independent tribunal which is charged with, among other things, holding hearings regarding appeals of planning decisions made by municipalities. Although members are appointed by the Province, it operates at arms length from the government and its decisions are to be based on the information presented before it. It is a “quasi-judicial” (court-like) with formalized procedures, rules of evidence, etc, but it is less formal than most court proceedings.

That being said, it is still a considerably more complex and onerous process than the typical consideration of an application by a Council or Committee of Adjustment, often running to multiple days of evidence and argument, versus minutes, or at most a few hours of proceedings at the municipal level. Lawyers and expert witnesses are usually involved in the preparation and presentation of the cases of the respective sides and the process is basically an adversarial one. As the proceedings arise out of disputes over local decisions, they automatically involve parties that are disagreeing and the outcome usually leaves at least one of the parties dissatisfied. Despite several attempts to refine the Hearing process, over time appeals have tending to become more time-consuming and expensive for the participants. Given the stakes in terms of the value of the lands and projects and the importance which residents attach to what they can and can’t do on their property and how proposed development can have a potential impact on neighbours, it is hardly surprising that the process has become increasing adversarial and Parties feel compelled to dedicate considerable resources towards Hearings; resulting in increased apprehension over the fairness of the system, its timeliness and the amount of resources it consumes.

The areas of concern have been summarized as:

• citizens feel they don’t have a meaningful voice in the process

• more weight should be given to municipal decisions

• OMB decisions are unpredictable

• hearings cost too much and take too long

• there are too many hearings; more mediation should be used

The consultation document identifies a number of themes and principles which are intended to inform the consideration of reforms;

• strengthen policy directions that outline the provincial interest in land use planning • give municipalities a stronger voice and more independence in local land use decisions • provide residents more opportunities for involvement and a greater say in land use decisions in their communities

• enabling more meaningful, affordable citizen participation

• giving more weight to local and provincial decisions

• supporting clearer, more predictable decision-making

• promoting alternative ways of settling disputes.

Although there have been calls for the complete elimination of the Board’s authority over local planning decisions, or limitation of their powers to matters of process, the Provincial is indicating that it is not prepared to go that far. Although municipalities, developers and residents have legitimate concerns regarding the expense, time and resources associated with Board Hearings, as well as the potential circumvention of the democratic process; in the absence of a specialised tribunal like the Board, more applications would be subject to litigation where consideration of the public interest is less important that it is before the Board. Historically, the Board has also provided an important second avenue where proposals can be considered in greater detail, somewhat removed from what may be considered undue influences which are contrary to the broad public interest.

This report will provide an overview of the changes being considered and staff comments on them.

Discussion

1.OMB’s Jurisdiction and Powers

•limitations on what aspects of approvals on Official Plans are appealable.

Some scoping or direction on the necessity to establish the basis for appeal may be appropriate, but a blanket ban on the ability of municipalities to address valid disagreements with ministry staff would remove an important mechanism for municipalities to address planning policies within the province’s established framework in a manner that is appropriate for local circumstances.

• restrict appeals on proposed policies and zoning by-laws that “supports” transit by ensure there is sufficient density levels.

This proposal would appear to have little impact on Severn, but potentially could provide for the suspending of rights of appeal related to changes that result in increased density.

• no appeal of a municipality’s refusal to amend a new secondary plan for two years. This recognizes the extensive work and involvement of a community in developing a plan, and would provide certainty and stability for neighbourhoods

• no appeal of a municipal interim control by-law. This would give municipalities the time to do the comprehensive studies that are required to appropriately plan for a neighbourhood, particularly where neighbourhoods are experiencing rapid change or are in transition.

This may encourage municipalities to use interim control by-laws to freeze development in an area when there is no intention to undertake the planning study which would otherwise be required. • expand the authority of local appeal bodies to include appeals related to site plans. This would allow them to hear disputes on individual properties relating to, for example, landscaping, driveways or lighting

This presumes the establishment of a local appeal body and an opening

of the site plan process to public meetings and input. As this is intended to be a largely technical process where zoning provisions and the municipality’s development standards and policies are applied, this change could add considerable to the resources involved with site plan approval. If the intent is to provide for a less onerous appeal process where a dispute arises between a developer and a municipality, this should be specified.

• further clarify that the OMB’s authority is limited to dealing with matters that are part of the municipal council’s decision, meaning the Board is only able to deal with the same parts of an official plan as those dealt with by council.

Restrictions on the ability to use a specific appeal to reopen other policies which were not part of the appeal seems appropriate, but in some cases, modifications or clarifications to a policy which was not part of the original appeal may be the most appropriate way to deal with an issue and such resolutions should not be prohibited.

• require the OMB to send significant new information that arises in a hearing back to the municipal council for re-evaluation of the original decision. This would ensure the OMB has the benefit of council’s perspective on all significant information.

This power can currently be exercised at the discretion of the Board. Clarification or enhanced direction to exercise this power may be appropriate, but a blanket requirement may lead to potential abuses where additional information is sought or provided for the purposes of delay. Additionally, many Hearing do generate the preparation of substantive additional information, this requirement could lead to significant delays in the consideration of many appeals.

• requiring the OMB to review municipal/approval authority decisions on a standard of reasonableness. That means OMB hearings would examine whether the original decision was within a range of defensible outcomes within the authority of the municipality/approval authority. If the decision is found to have been made within that range of outcomes, the OMB would not be able to overturn it.

This is perhaps the most interesting of the proposals. In effect, it would move the onerous of proof further for appeallants and better reflect the importance of decisions by local officials. A possible alternative would be to develop a pre-hearing process to determine the “reasonableness” of an appeal. The Board already has some powers in this regard, but has generally been unwilling to use them , allowing the sides to “have their day in court.” A discussion with a Hearing Officer or mediator as to the general merits of a proposal and an the appeal may help to reduce “frivolous and vexatious appeals” and to better scope appeals or identify potential resolutions.

• authorizing the OMB to overturn a decision made by a municipality/approval authority only if that decision does not follow local or provincial policies. This would mean that the Board would have to be convinced that the planning decision under appeal is contrary to local or provincial policies. Examples might include approvals of proposals

for development in a flood-prone area or a provincially significant wetland, or an official plan that does not meet the Growth Plan for the Greater Golden Horseshoe.

This would represent a considerable scoping of the Board’s current jurisdiction. This would remove the ability to address site specific issues which are not clearly addressed in policy. The adoption of a test of reasonableness and the ability of the Board to scope proceedings may be a more appropriate mechanism of addressing this area of concern.

Transition

There are two points of view identified regarding the application of policy to applications which are submitted prior to a change in planning policy:

1. All planning decisions should be made on the most up-to-date planning documents.

2. Fairness requires that planning decisions be based on the planning documents that were in place when the process was started.

Since 2007, the Planning Act has required that, going forward, land use decisions must reflect provincial policies in place when the decision is made, not when the application is made.

The government states that it is now seeking input on possible changes that would expand on the 2007 changes by requiring that all planning decisions, not just those after 2007, be based on provincial legislation and planning documents and municipal planning documents in effect at

the time of the decision.

This appears to be something of an oversimplification of how the Board and the courts have dealt with applications where the processing straddles different policy regimes. It is staff’s understanding that based on what is commonly referred to as the “Clergy principle”, generally decisions are to be reached within the policy framework in place at the time of application, but that consideration should be given to the impact of policies adopted in the interim between submission of the application and the final decision being rendered and further that subsequent decisions on other applications to implement the previous approval have to give consideration to the evolution of policy in the light of the pre-existing approval. Over the years, numerous policy proposals from the Province have suggested circumscribing this principle, but ultimately, transition provisions carrying forth the supremacy of policy environment at the time of application are incorporated in the new framework. Presumably this has been done to reduce uncertainty for applicants and prevent what is in effect an expropriation of property rights without due process. Clarification of the impact of the evolution of policy with the existing legal framework might be useful in this regard.

2.Citizen Participation and Local Perspective

•increasing public education opportunities to provide clear

information on OMB practices and procedures, including creating a new user-friendly website. • the government is considering expanding the Citizen Liaison Office(CLO). A reconfigured CLO might include in-house

planning experts and lawyers who would be available to the public (subject to eligibility criteria) • explore funding tools to help citizens retain their own planning experts and/or lawyers. These proposals might help to better inform residents and address the imbalance in expertise and resources between residents and proponents. Linking this initiative to an improved mediation process may help to re-inforce both initiatives.

3.Clear and Predictable Decision-making

•increasing the number of OMB adjudicators and ensuring

they possess the necessary skills. Further training could be increased - including on decision writing, active adjudication, and dealing with parties that have no legal representation.

• having multi-member panels only conduct complex hearings

• having multi-member panels conduct all hearings

Increased number of Hearing Officers will help to provide more timely Hearings. Additional training for both new and existing members would also be helpful, especially in terms of how to deal with unrepresented parties. The re-introduction of multi-member panels for complex hearings seems appropriate, but requiring them for all hearings would seem to be a significant impairment to more timely hearings and be of uncertain benefit.

4.Modern Procedures and Faster Decisions

• allow the OMB to adopt less complex and more

accessible tribunal procedures

• allow active adjudication

In conjunction with the appropriate training, this type of initiative has the potential to make the process less legalistic than it has become, helping to return the focus to reaching appropriate decisions from a planning perspective and make the process less intimidating and expensive for those involved. Ways in which to “deincentivise” of “legal maneuverings” would be extremely beneficial to the process.

• 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

• introducing maximum days allowed for hearings

These initiatives seem to make sense, but establishing limits for Hearings would have to be addressed carefully. Case management in terms of scoping the issues and establishing parameters for each component of evidence, blocking delaying tactics and working towards a generally less adversarial approach between parties and their legal representatives would all be helpful.

5.Alternative Dispute Resolution and Fewer Hearings

• 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, to help reduce the number of appeals that go to the OMB

• strengthening the case management at the OMB to better stream, scope issues in dispute, and identify areas that can be resolved at pre-hearing and to further support OMB members during hearings

• creating timelines and targets for scheduling cases, including mediation

Refinement of the above suggestions would help to improve case management by the Board and result in more timely and less expensive resolution of disputes. Staff believes that the use of pre-screening tools would make these initiatives more effective.

Financial Impact

The proposed changes do not appear to impose any direct costs on the Municipality at this time, but depending on what is finally adopted and how they are implemented there is some potential that future expenses associated with Municipal Board proceedings could be less than they would be otherwise.

Respectfully submitted,

Andrew Fyfe, M.A.
Director of Planning & Development

Appendix 1: Review of the Ontario Municipal Board – Public Consultation Document

[Original Comment ID: 207247]