September 1, 2017…

September 1, 2017

Ken Petersen
Manager, Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay Street, 13th floor
Toronto ON M5G 2E5

Re: Submission to EBR file 013-0590

Dear Mr. Petersen, The 120 members of the Ontario Greenbelt Alliance are supportive of many of the changes proposed in Bill 139, the Building Better Communities and Conserving Watershed Act, 2017. The proposed reforms go a long way to enhance Municipal Council responsibility and authority but fall short of the full suite of changes needed to support citizen participation in land use planning decisions. For too long, Ontario Municipal Board (OMB) members have dismissed issues of provincial interest or penalized citizens for participating in hearings. The new Local Planning Appeals Tribunal needs to acknowledge that public participation is a key component of our land use planning system. Changing the name of the land use planning tribunal is a good start but will be incomplete without changing the mindset, and membership, of the body. New members are needed that respect and enforce the paramountcy of new provincial planning rules and ensure municipal compliance with their direction. Only then will decisions emerging from the body protect our environment and uphold a progressive approach to planning that will limit sprawl and encourage growth within our existing urban areas.

The members of the Ontario Greenbelt Alliance respectfully submit the following comments on the proposed legislation for your consideration.

Sincerely,

Erin Shapero
Coordinator, The Ontario Greenbelt Alliance

 

1.0   Comments on Bill 139, Local Planning Appeals Tribunal

1.1   Environmental issues need a fair hearing
With the inclusion of climate change as a matter of provincial interest in land use planning, protection of the environment is recognized as a bedrock requirement of land use planning. The LPAT/OMB is a land use planning tribunal that specializes in urban design, density, massing and compatibility concerns. The LPAT/OMB is not an expert environmental tribunal – it wasn’t created to deal with the rapidly evolving science of ecology, climate change, or its application in municipal plans as required by the Planning Act. Board Members hearing appeals of matters of provincial interest outside of urban areas (e.g. protection of wetlands, forests, wildlife habitat, agricultural land, groundwater, carbon sequestration, climate change, Aboriginal cultural heritage, etc.) require a different knowledge base than urban appeals concerning issues such as building height or appropriate design. Planning appeals relating to greenfield sites that involve agricultural and environmental issues, and environmental features, are often complex, and benefit greatly from being decided by Board Members with knowledge of the environment and environmental law. Referring matters that are primarily environmental in nature to the Environmental Review Tribunal would ensure that issues of environmental protection are given the expert review that they deserve.

Recommendation: We recommend that hearings on “greenfields” or environmental features that fall under provincial interest, such as groundwater, natural heritage mapping, wetlands, forests, climate change, wildlife habitat, agricultural land, etc. be referred to Environmental Review Tribunal. Once those matters have been resolved any remaining planning disputes can be dealt with by the LPAT/OMB.

1.2   Support Citizen Participation
Providing information under the auspices of the proposed Local Planning Appeals Support Centre is a positive change but should be augmented. For citizens, the cost of participating in LPAT/OMB appeals is expensive and time consuming. Intervenor funding similar to models that exist for energy regulation or human rights issues in the province is needed to address the fundamental imbalance favouring the development industry.

In 2015, according to the Ontario Home Builders Association, there were 68,091 home starts in Ontario. Development charges and other fees (land transfer tax) paid to government make up about $100,000 of an average home cost . So, by multiplying 68,000 home starts by $100,000 (development charges and other fees) = $6,800,000,000. Reserving 1% of this amount to support citizens in need of intervenor funding would produce $68,000,000. A rate of 0.1% would result in $6,800,000. Clearly there is enough money in the system to help level the playing field. The Ontario Energy Board Practice Direction on Cost Awards provides a relevant example of the cost and process of an intervenor funding program.

Recommendation: Provide intervenor funding to enable full citizen participation in hearings. The LPAT/OMB rules are tilted in favour of wealthy developers. Our members find it increasingly difficult to be able to participate in LPAT/OMB hearings where there is a matter of public or provincial interest at stake. The province needs to address this imbalance by ensuring members of the public have access to intervenor funding to access expertise and enable them to fully participate in hearings.

1.3   Cost of Hearings
The current OMB hearings structure results in costs that undermine provincial planning goals. The system is weighted heavily in favour of those in the development industry who have the resources, knowledge and experience (and access to a stable of planning, environmental and other professionals with specialized expertise) to skillfully argue their case before the OMB. The Environmental Commissioner’s 2009 report highlights the imbalance favouring the development industry: “Nowhere is the asymmetry of the system more evident than in the relative economic power of the two sides involved. When the stakes are in the many millions – sometimes billions – of dollars, the resources that developers are prepared to invest to overcome residents’ objections far surpass the capacity of most citizens groups, environmental organizations, and even conservation authorities and municipalities.” [Emphasis added] For example, developers in a recent three-week OMB hearing spent $1.5 million to oppose a farm family who were seeking a 30m buffer for their livestock operation in the Greenbelt (Vaughan).

Rather than pay the cost of participating in a hearing, municipalities sometimes opt to settle with developers even when the core issue remains unresolved. As a result the settlement reached may be contrary to approved municipal plans developed over years with thoughtful research, studies, legal, planning expertise and public consultation. Even worse, when municipalities support development applications they have their hearing costs including lawyers, experts, etc. paid for by the developer under a provision of the Planning Act. Municipalities never receive this funding when they side with citizens against development.

Recommendation: Reform the LPAT/ OMB to reduce the imbalance favouring developers. Amend Section 69 of the Planning Act which allows developers to pay for municipal hearing costs if the municipality supports the developer.

1.4    Restrict Appeals
OGA members are supportive of the reforms to restrict appeals of entire Official Plans and uphold provincial policy. This assumes full engagement of the Ministry of Municipal Affairs in the review of Official Plans and significant OP Amendments. But citizen access to appeal Council decisions that are inconsistent with the Official Plan and zoning by-laws should be retained.

Recommendation: Restrict appeals of entire municipal official plans and provincial plans. The LPAT/OMB should not be able to overrule provincial policy or rewrite municipal plans that conform to provincial policy. Retain the right of appeal where council decisions appear to misinterpret or misapply a municipality’s own official plan and/or provincial policy.

1.5   OMB Cost Claims
The proposed changes under Bill 139 would likely reduce the number of hearings but do not address the threat of adverse cost awards that silence citizen participation. Cost awards have been getting larger, and even the threat of costs is worrisome. In a North Dumfries example, a $225,000 costs claim was requested and in the end the OMB awarded $125,000. In the example cited above from Vaughan, developers sought $1.3 million in costs and were awarded 6% of this amount without producing any evidence the costs were actually incurred. The costs of defending such an outrageous claim in court is prohibitive for citizens (and cost almost as much as the hearing itself).

The recent Protection of Public Participation Act (“PPPA”) fails to meaningfully remove the threat of costs claims at the OMB/LPAT. The Toronto Star and others have documented citizens stating that the mere threat of costs caused them to abandon their opposition at a hearing.

Recommendation: Limit cost awards to $5,000. The LPAT/OMB has the authority to limit or refuse to undertake hearings that are without merit and developers are more than capable of requesting that the Tribunal dismiss unmeritorious appeals.

1.6   Transparency and Accountability
Currently Board hearings are not recorded on video or tape. Transcripts are extremely expensive, costing tens of thousands of dollars, and in some cases more. (The Walker Aggregates Inc. Joint Board hearing covered 139 Hearing Days, total transcript cost was $208,500 ($1,500 X 139 days) In addition, members of the public or their legal representatives are routinely prohibited from recording any part of the proceedings. This is not consistent with the rules at other tribunals or courts. This lack of public scrutiny has given licence for some Board members, developers and lawyers to harass, intimidate or threaten citizens. These actions would be less likely to occur in an open, public and transparent process.

Recommendation: Hearings should be video recorded and made publicly available online and be open to the media. Hearings should also be held in venues with access to high speed internet and the hearing should be streamed online in real-time.

1.7   Qualifications of Board Members
It’s time to upgrade the qualification standards for new LPAT members and review current LPAT members' qualifications and performance. Decisions often take months or over a year to produce, even in limited matters (e.g. Motions). All members should be required to have professional education or qualifications in land use planning policy and urban design, with ongoing professional training updates, including in relation to new provincial policy and environmental planning. In addition, a series of recent troubling decisions by the OMB has illustrated the need for a formal complaints process to stop members from unjustly penalizing citizens’ groups for perceived slights or justifiable criticism. In a recent case decided by the OMB, the Board ignored the evidence of local farmers, a provincial rural planner and the Simcoe Chapter of the Ontario Federation of Agriculture (“OFA”), granting an approval to a large scale rock concert venue on prime agricultural land.

Recommendation: Administrative changes are needed to upgrade the qualifications for new LPAT members, review current LPAT members' qualifications and performance, and mandate ongoing training.

1.8   Mediation
OGA members welcome the renewed emphasis on mediation to resolve disputes, especially for urban planning matters where there is an opportunity to negotiate. Mediation is not effective when a clear yes/no decision is needed.

Mediation and Alternative Dispute Resolution can be costly and not always helpful because developers have a limited interest in considering public interest issues like addressing climate change, the preservation of farmland, biodiversity or wetland habitat. Mediation in these cases may result in resolution of a dispute but it may also result in poor outcomes. Determination of whether a Council planning decision conforms to provincial policy requires a decision, not mediation.

Mediation is a favoured tactic of developers seeking to “bleed” poorly funded opponents, who often exhaust their entire hearing budget on costly and fruitless mediation. Further, members of the public have no leverage in a negotiation and may be excluded from participating in mediation and settlement discussions. We recommend that participants and parties be given equal privilege of participating in any mediation processes. Intervenor funding should be extended to ratepayer and community groups that are parties and participants in all mediation processes.

Recommendation: Mediation should not be mandatory, all parties and participants should be included in mediation and intervenor funding should be made available to citizen’s groups for mediation.

1.9   De Novo Hearings
The OGA supports giving strong deference to municipal planning decisions that protect the environment and support community plans. We also support allowing the municipal planning report, minutes of the public hearing and Council decision to be used as evidence at a Tribunal hearing.

However, in our experience, many municipal planning and development decisions in greenfield contexts grant approval to new development in sensitive environmental features with proper consideration or interpretation of provincial policy. Giving greater deference to planning decisions that do not fully assess impacts nor protect the environment will not result in better outcomes.

Many of our members are concerned about a move away from de novo hearings as the statutory public hearing at the municipality becomes a quasi-judicial review. Citizens may be required to submit evidence and hire experts at the municipal statutory public hearing in order to provide fulsome evidence. Too often municipal staff reports lack information on the environmental impacts of land use decisions. In the past issues with policy interpretation and matters of provincial interest needed to be raised at the municipal hearing but evidence wasn’t required until the OMB hearing. As the decision of Council is final if the application is in conformity, citizens will have limited time and resources to produce the required studies. Fundraising, hiring experts to provide evidence and written reports (environmental impact studies, hydrological reports) usually takes months but will now need to be completed for the municipal hearing. Therefore removing de novo hearings may eliminate the public’s ability to question poor or non-compliant planning decisions or policy interpretations.

Recommendation: The proposed changes under Bill 139 may give too much deference to municipal council decisions. Reforms are needed that emphasize support for good municipal decision-making that follows provincial policy and updated municipal policy. The rules of evidence for appeals should allow for informal applications by participating citizens. Refer environmental matters to the ERT. LPAT decisions should be based on application of the most up-to-date planning policy and principles, even if not yet reflected in upper or lower tier planning policies or plans.

2.0   New Evidence and Complete Applications
OGA members support allowing new evidence to be sent back to Council for consideration but there should be a limitation on the number of times an application can be revised. While the “complete application” requirement sounds good on paper, it is rarely enforced properly.

For example, in North Kawartha Township, a developer was allowed to unilaterally change its application after an OMB hearing had started. In Oro-Medonte, Council allowed a developer to conduct Stage II archaeological investigations weeks after the OMB hearing had started. It is important to ensure that if new evidence is sent back to Council, that a new planning report will be required including a pre-consultation, notification, new hearing and that the public planning process is followed for any subsequent revisions of the planning application. Our preference is to extend the length of time allowed to prepare the complete planning report from 180 days to 365 days and require the municipality to follow a strict process and adhere to the requirements of a complete application. The developer should not be allowed to keep changing a planning application and sending it back Council, and by so doing exhaust limited citizen group resources. Further, full planning reports should be prepared and available at the time of providing public notice of a formal public meeting, and thus part of the early evidentiary record.

Recommendation: We are supportive of changes the proposed in Bill 139 that require hearings to occur only after all evidence has been submitted for consideration. Any new technical studies or changes to planning applications should be sent back to Council, and hearings adjourned for a minimum of 180 days. Full staff planning reports should be required in the Planning Act to be made publicly available at the time of providing public notice of a formal public meeting.

2.1    Ensure First Nations have been Notified and Consulted
Ontario’s Planning Act notification regulations are inconsistent with legal requirements for aboriginal consultation. For example, O/Reg 543/06 gives notice of planning decisions to municipalities, school boards, Hydro, natural gas utilities, etc. etc., but only give notice to First Nations if the project is within 1 km of a Reserve – even if the development affects First Nations’ rights and traditional territory. Even profound changes to Official Plans are occurring without explicit recognition of whether First Nations were consulted. LPAT/OMB members need to be trained to better understand what constitutes “consultation” to identify cases where First Nations were not included in the planning process but should have been given a seat at the table.

Recommendation: Change Ontario’s Planning Act and regulations to explicitly require full rights of notice and consultation for First Nations as a mandatory part of LPAT/OMB appeals.

2.2   Streamline notification processes The province needs to take a more active role in tribunal hearings to uphold matters of provincial interest and matters requiring interpretation of provincial policy.

Recommendation: Streamline and publicize notification procedures of municipal decisions and identification of provincial matters of interest to the Ministry of Municipal Affairs in order to better enable the Ministry to identify opportunities to initiate, support or otherwise become involved in LPAT appeals.

2.3   Expedited Process needed to reduce time and costs An expedited process to resolve technical questions would enable an agreed stated question and parties' written argument on one or two questions, with expedited adjudication and decision by the LPAT/OMB. Such a process could be subject to appeal to a fuller hearing but would reduce the need and costs to do so.

Recommendation: We are supportive of the case management process if it provides an expedited process to appeal to the LPAT to resolve key technical questions regarding consistency and conformity with Provincial Policy.

3.0   Summary of Recommendations:

1)   All environmental issues involving the Greenbelt, greenfield applications, agricultural lands and natural heritage features, functions and systems such as wetlands, woodlands, wildlife habitat, and surface and groundwater features should be heard by the Environmental Review Tribunal or by a Joint Board, not the Local Planning Appeals Tribunal.

2)   OGA supports restrictions to appeals of provincial and municipal policy and plans however increased provincial involvement is needed to defend provincial policy and matters of provincial interest in cases where policy is misinterpreted at the municipal level and by the LPAT. Restricting appeals of provincial policy will help reduce the number of appeals but policy may still be misinterpreted.

3)   Provide intervenor funding to support full citizen participation. The current rules are tilted in favour of wealthy developers. Our members find it increasingly difficult to be able to participate in hearings where there is a matter of public interest. The province needs to address this imbalance by ensuring members of the public have access to intervenor funding to enable them to fully participate in appeal hearings.

4)   Reform the LPAT/OMB to reduce the imbalance favouring developers. Remove Sec. 69 of the Planning Act which allows developer to pay for municipal hearing costs if the municipality supports the developer.

5)   Limit cost awards against citizens and citizen groups to $5,000.

6)   The proposed increases to the time limits of a complete application will help reduce the number of non-decisions of Council. Having a completed application that has been given a thorough review and report by planning staff and reviewed by Council will allow the development process to proceed more quickly than having a rushed report that isn’t complete and referred to the LPAT/OMB.

7)   Planning is a public process. The Tribunal needs to respect and welcome public participation. Procedures and practices need to be more citizen friendly, use checklists, enable informal evidential practices, identify that the objective is to resolve disputes in keeping with provincial and municipal policy, science and the public interest.

8)   Improve accountability and transparency by holding open public LPAT/OMB hearings. Require all hearings to be video recorded, with videos accessible on the LPAT/OMB website. Where available, hold hearings in venues with access to high speed internet and stream the hearings online in real-time.

9)   Support shorter hearings by encouraging written submissions for minor variances and severance appeals. Require written submissions for cost awards and motions.

10)   LPAT/OMB decisions should be based on the most up to date planning documents, conform to provincial and municipal policy and allow the municipal planning hearing report and minutes to be filed as evidence. LPAT hearings should only occur after all evidence has been submitted for consideration and made available to parties and participants. Any new technical studies or changes to planning applications should be sent back to Council, and hearings adjourned for a minimum of 120 days. Full staff planning reports should be required in the Planning Act to be made publicly available at the time of providing public notice of a formal public meeting.

11)   Review the qualifications of Board members and develop a public complaints process. Require diversity of planning expertise on the Board. Members must have education and experience in land use planning policy, and/or urban design and environment, planning for climate change. Move away from reappointing members with only development approvals experience, political service experience and legal knowledge. Foster updated and ongoing training in provincial policy, good planning practice, and environmental best practices.

12)   Change Ontario’s Planning Act and regulations to explicitly require full First Nations rights of notice and consultation as a mandatory part of OMB appeals.

13)   Mediation should not be mandatory. Public participation in mediation should be upheld and funding should be made available to citizen’s groups for mediation.

14)   Streamline and publicize notification procedures of municipal decisions and identification of provincial matters of interest to the Ministry of Municipal Affairs in order to better enable the Ministry and the public to identify opportunities to initiate, support or otherwise become involved in appeals.

15)   We are supportive of the case management process if it provides an expedited process to resolve key technical questions regarding consistency and conformity with Provincial Policy. This would enable an agreed stated question and parties' written argument on one or two questions, with expedited adjudication and decision by the OMB. Such a process could be subject to appeal to a fuller hearing of the OMB, but would reduce the need and costs to do so.

The Ontario Greenbelt Alliance

The Ontario Greenbelt Alliance is a defender of Ontario’s innovative Greenbelt and proponent of Smart Growth in Ontario. The Alliance brings together more than 120 environmental and public health organizations, community groups and local environmental organizations from across the Greenbelt’s landscape and throughout the GGH. Founded in 2004, The Ontario Greenbelt Alliance believes that a strong economy and a beautiful well-protected Greenbelt go hand in hand. Our groups know first-hand the impacts bad planning decisions have had in Ontario, impacts that affect the quality of our water, our health, and our economy. The Greenbelt and Growth Plan must be strengthened if we want to have a healthy environment, a successful and robust rural economy and vibrant natural areas that connect and support Ontario’s rich biodiversity.

[Original Comment ID: 210888]