REPORT TO: Planning and…

REPORT TO: Planning and Development Committee

MEETING DATE:Wednesday, November 30, 2016

SUBJECT:Ontario Municipal Board Review

RECOMMENDATIONS

1.That Regional Council SUPPORT the review of the Ontario Municipal Board.

2.That Regional Council RECEIVE “Reforming the Ontario Municipal Board: Five Actions for Change Report” attached to this report (Appendix I) commissioned by the Regional Planning Commissioners of Ontario in response to the ongoing review of the Ontario Municipal Board.

3.That a copy of this report BE FORWARDED to the local area municipalities, the Niagara Peninsula Conservation Authority and the Ministry of Municipal Affairs.

KEY FACTS

•The OMB is an independent tribunal which aims to resolve land use disputes in Ontario and is currently being reviewed with comments due December 19th 2016.
•The Province has recently released a discussion paper titled “Review of the Ontario Municipal Board Public Consultation Document” Appendix II which outlines current challenges and potential solutions.
•Niagara Region participated in the development of a report through the Regional Planning Commissioners of Ontario (RPCO) titled “Reforming the Ontario Municipal Board: Five Actions for Change” (Five Actions for Change Report) attached as Appendix I.
• Planning staff intend to submit the report commissioned by the RPCO (Five Actions for Change Report) as comments for the review of the OMB.
•The Five Actions for Change Report identifies key issues and recommends: filtering down the scope of appeals, sharpening the procedures of the OMB, strengthening OMB member knowledge and decision making, resolving issues more commonly through mediation and stepping up key legislative powers at both the provincial and municipal level.

CONSIDERATIONS

Financial

As a participant of RPCO, Niagara Region contributed to and supported the report. The OMB can have significant financial implications and utilize a considerable amount of Regional resources and staff time. Costs associated with the OMB at a regional and local level may include staff time, hiring of experts and legal counsel. Recommendations in the RPCO report are aimed at improving efficiency in process, scoping etc. which can reduce the financial burden of the municipalities.

Corporate

OMB hearings utilize both Planning and Development Services staff and legal counsel at the Region. Improving the process would have a positive impact on staff resources and time.

Governmental Partners

The Province of Ontario operates the OMB as an independent tribunal for land use disputes. Given the broad jurisdiction, the OMB is a key player in the Ontario planning hierarchy; how it operates and its jurisdiction and power have a significant impact on planning operations at both the regional and local municipal level.

Public and/or Service Users

The purpose of the OMB is to provide an opportunity for land use disputes to be resolved through an appeal body. The OMB furthers the public participation in municipal land use planning by providing the opportunity to appeal municipal council decisions. However, the OMB imposes barriers which can considerably impact public participation. The challenges that are impacting the public participation are being considered through this review process.

ANALYSIS

Background

Review of the Ontario Municipal Board

The OMB review commenced in 2014, its aim was to address ongoing challenges regarding the current jurisdiction, powers and process of the Board. In October 2016, the Government of Ontario through the Minister of Municipal Affairs and Attorney General released the public consultation document titled “Review of the Ontario Municipal Board Public Consultation Document”, which outlines the current perceived issues of the OMB and potential solutions.

The Province through the public consultation document notes challenges with the current processing of the OMB, focused on practicality issues, adversarial hearings, the broad jurisdiction, lack of regard to municipal decisions, and inconsistent OMB member training. The public consultation document then groups these challenges into five themes and provides potential solutions for discussion. Below are some of the key considerations from the Province’s discussion paper, with additional considerations included in Appendix II.

Theme 1: OMB Jurisdictions and Powers

Outlines issues with how the OMB is run and what the OMB can hear through appeal. The Province is considering some key changes such as: limiting appeals; limiting appeals to transit supportive policies; expanding authority of local appeal bodies; ensuring new information from OMB hearings is resubmitted to municipal council; including more regulations around “de novo” hearings.

Theme 2: Citizen Participation and Local Perspective

The second theme outlines issues with how the OMB communicates with the public and vice versa. To improve relationships between the OMB and the public, the Province is considering some key changes such as: developing a user friendly website; expanding the Citizen Liaison Office (CLO) to provide better service; and exploring funding tools for the public to retain legal and planning support.

Theme 3: Clear and Predictable Decision Making

The third theme addresses the need for clear and consistent decision making. The following potential key changes are being considered: implementing further training for OMB members and implementing multi-member panels for complex hearings.

Theme 4: Modern Procedures and Faster Decisions

The fourth theme speaks to increasing efficiency of the OMB. To achieve this goal the Province is considering the following key changes: simplifying tribunal procedures; conducting hearings in writing; introducing maximum days allowed for hearings; and establishing rules to keep hearing focussed and cost efficient.

Theme 5: Alternative Dispute Resolution and Fewer Hearings

The fifth theme addresses the concern related to the lack of mediation cases through the OMB. In an effort to reduce the amount of hearings and promote Alternative Dispute Resolution the Province suggested the following solutions: requiring appeals to be considered by a mediator before scheduling a hearing; having government mediators available throughout the application process; creating timelines and targets for scheduling; and strengthening case management to better stream, scope and identify areas that can be resolved.

RPCO “Reforming the Ontario Municipal Board: Five Actions for Change”

In response to the review, The Regional Planning Commissioners of Ontario proactively commissioned The Five Actions for Change Report. The information in the report was collected through an analysis of current and past OMB information, reviewing the practices in other jurisdictions, and surveying/interviewing the RPCO members and other key people in planning, law, policy and development.

The Five Actions for Change Report summarized five key issues:

•Large, complex hearings take too long and tie up resources
•Resolving disputes at the OMB is expensive
•The OMB has insufficient regard for decisions of municipal staff and Councils
•The process is too litigious
•De Novo hearing limitations

To address the issues identified, the report recommends actions for change. Each action is a broad overarching objective, which enlists specific deployable recommendations; below the Actions for Change have been summarized further justifications for the recommendations are provided in Appendix I.

Action for Change 1: Filter

Addresses the need for the OMB to narrow and scope appeals providing more regard to municipal decisions. The main goal is to filter matters so that more are removed from appeal or dealt with at the municipal level. The recommendations include:

•Implement Bill 73 (Smart Growth for our Communities Act) and Bill 204 (Promoting Affordable Housing Act) through appropriate regulation.
•Remove the right to appeal all municipally-initiated official plans or official plan amendments in defined circumstances.
•Reduce the role of the OMB in dealing with appeals of minor variances and consents. •Empower municipalities to reject appeals where oral or written submissions were not made.

Action for Change 2: Sharpen

Addresses the issues related to the length, cost and litigious manner of OMB hearings. The main goal of this action is to sharpen the procedures of the OMB to increase efficiency. The recommendations include:

•Dismiss appeals that lack sufficient land use planning grounds and Increase the standards for submitting an OMB appeal.
•Institute procedural controls designed to improve the scheduling of hearing events, improve the range and efficiency of dispute resolution processes and make the process less litigious. •Institute rules of practice and procedure regarding the treatment of new evidence brought to the Board.

Action for Change 3: Strengthen

Addresses the need for the OMB to improve processes and handle cases and matters more effectively. The main goal of this action is to strengthen the staff ability to make better, more educated decisions. The recommendations include:

•Ensure that the OMB’s budget is adequate to support and augment enhanced planning staff review of files.
•Provide better compensation for Board members.
•As appropriate, insulate Board decisions from administrative or judicial review. •Enhance the standards for Board member appointment
•Institute Board member training and performance review practices.
•Relieve the backlog of files awaiting resolution.

Action for Change 4: Resolve

Addresses challenges around the amount of appeals and hearings that reach the OMB. The Main goal of this action is to promote and implement mediation and alternative dispute resolution (ADR) wherever possible. The recommendations include:

•Require that appeals proceed through Mandatory Review and Mediation Process.
•Explore every avenue for dispute resolution prior to hearings.

Action for Change 5: Step Up

This action for change is split into two subcategories: Provincial and Municipal. Through the Provincial call to action the main goal is for the Province is to dedicate further resources and towards faster OMB decisions and ensure the provincial direction is clear. Through the municipal call to action the main goal is for planning policy to be updated to increase the amount of “as of right” applications and better reflect the modern planning practice. The recommendations include:

•Clarify the requirement to “have regard to” municipal decisions.
•Quickly and clearly resolve matters of Provincial conformity in municipal official plans and issue notification of conformity (or non-conformity) within a reasonable timeframe.
•When called upon to do so, produce provincial staff to provide evidence on the provincial policy in issue at the OMB.
•Issue guidance to the OMB on the weight that should be given to municipal guideline documents. •Planners are forthright with their professional planning opinions.
•Update zoning by-laws to match official plan designations.
•Update the zoning for areas where higher densities are desired so that appropriately-scaled development can proceed as-of-right.
•Where appropriate, implement community planning permit systems.

Commissioner/Planning Staff Comments

Reforming the Ontario Municipal Board is a rare opportunity to address concerns that have had an impact on Niagara such as appeals on issues related to conformity, length of appeals, scope etc. The RPCO report: “Reforming the Ontario Municipal Board: Five Actions for Change” report was completed prior to the release of the Provincial public consultation document; however, many of the key themes and recommendations align. Niagara Region’s contributions to the report ensure that the Five Actions for Change report reflects Niagara’s priorities to make an efficient and fair OMB. The proposed reform will be relevant and helpful for local municipalities in particular as they are regularly involved with board hearings.

[Original Comment ID: 207001]