Centre for Landscape…

Centre for Landscape Research
John H. Daniels Faculty of Architecture, Landscape, and Design
University of Toronto

December 19, 2016

Ontario Municipal Board Review
Ministry of Municipal Affairs
Provincial Planning Policy Branch
777 Bay Street, 13th Floor
Toronto, ON M5G 2E5
E-mail: OMBReview@ontario.ca

Re: Submission by Prof. John Danahy to the Review of the Ontario Municipal Board

The following is my submission to the Ontario Municipal Board (OMB) Review. I do so as a professor, researcher, and professional practitioner working across the three disciplines of urban and regional planning, landscape architecture, and urban design in Ontario. I have presented expert evidence at the OMB and taught urban design to these three professions as well as architecture for over 30 years.

As Director of the Centre for Landscape Research (CLR) at the University of Toronto, I provided assistance to agencies, cities and citizens’ groups in understanding and negotiating urban design outcomes that were defensible at the OMB. I gave the first digital visual evidence accepted at the OMB in the 1980’s, and more recently, led the engagement work on the Lakeview Legacy Project (the first citizen-initiated masterplan accepted by a city council and brought forward for Provincial Cabinet support by the Honorable Charles Souza, MPP – the initiative is moving forward as Inspiration Lakeview, and as a model eco-community that will set the Provincial standard of planning for livability and sustainability).

I would like to begin by highlighting some extremely positive and encouraging results emerging as a result of the 2004 Planning Act reforms. Some cities have led the way in embracing and exceeding the minimum requirements specified by the Province. Those advances in planning process made by municipalities and citizens deserve to be elevated to a privileged position in our Provincial Planning system and not subject to OMB review.

I have the following observations and suggestions:

Paradigm shift in contemporary planning

The paradigm for planning in Ontario has undergone dramatic change over the course of my 40 year career. Planning as a field is changing to embrace disciplinary complexity and harness the knowledge available for planning through engagement of our increasingly educated and informed citizens. For instance, planning at the City of Mississauga has taken the Province’s 2004 idea for better consulting of the public a step further and completely reinvented the approach to engagement and planning. The City added a new strategic meta planning layer over top of its conventional planning framework as well as listening to and receiving bottom-up planning initiated by its community groups and development industry. The strategic plan engaged more than 100,000 people and has affirmed the values that now guide how the City meets both its Provincial targets and those set by its citizens. There have been more than ten years of negotiation, careful study and research behind the Mississauga’s planning policies. All of which embrace the planning principles in Provincial policy. The City added extra layers of planning study combined with interest group charrettes composed of development industry consultants and citizens to arrive at the plans recently put in place after years and years of volunteer time and tens of millions of dollars in staff and consultant time. These past ten years have seen a remarkable transformation from sprawl planning to a consensus on the way forward. It is a powerful precedent and model of what good planning in Ontario means. The Province would be wise to strengthen such efforts.

OMB has not adapted

Unfortunately over the course of my career, the same cannot be said for the OMB. Very little of substance has changed since I first presented evidence. The fundamental problem of the OMB is its normative commitment to adversarial quasi-judicial decision-making combined with the notion that decisions are made by one or two adjudicators that rely on balancing facts presented by expensive subject area experts paid for by the parties to a hearing. This systemically leaves the citizen out of the equation. This approach flies in the face of everything we know in contemporary planning theory and our experience in building sustainable complete communities through active engagement of an informed citizenry.

OMB’s lack of expertise to deal with contemporary multi-disciplinary planning

OMB adjudicators have none of the subject area knowledge that is needed to judge planning decisions that affect most citizens’ primary interests. At a time when the Provincial interest rests on intensification planning, the primary planning appeal body has for all intents and purposes no design scale expertise. Yet its decisions directly impact people’s quality of life. The formal training needed today is not represented in the makeup of the Board. That lack of capability is deeply problematic and undermines the OMB’s legitimacy (one member has an architecture background, almost 2/3 are lawyers, only 1/3 have a general planning background).

Contemporary planning problems demand multidisciplinary knowledge.

Therefore, the OMB must have multi-member panels representing the disciplines needed to address the scope of specific cases and settings (urban or rural). A committee of adjustment appeal hearing may need a panel composed of an urban forest planner and an urban designer while a local area plan may need a policy planner, urban designer, landscape architect, and transit engineer to interpret and weight how to best achieve a complete community.

Remove all aspects of de novo hearings

Currently, good planning processes are penalized by de novo hearings and trap door appeal opportunities. The notion of seeking the “best” decision lies at the heart of the OMB’s deficiency of expertise. The OMB should focus on evaluating the fairness of process and reasonableness, not the outcome. If the OMB is to continue to second guess the massive public investment in proactive, carefully studied good planning enacted democratically, then a completely new approach to membership and the use of planning adjudication panels needs to be invented. The panels will need to have access to independent subject area expertise and research to be seen to operate objectively and at a level of knowledge complexity that matches the planning challenges of today. An OMB of this type would duplicate the costs already spent in a city such as Mississauga. Mississauga spends over 10 million dollars a year to maintain subject area expertise (excluding legal, IT and consultant input). Mississauga has been spending this sort of money for ten years to put in place the plans now open to appeal at the OMB.

Limit appeal options once plans are deemed by the Province to conform

Since 2004, we have extremely positive reforms to the planning system that embed engagement. Leading municipalities have been spending tens of millions of dollars each year to engage all interests in processes that put meaningful mediation and negotiating at the front end of revising and developing more sustainable official plans. These efforts extend to local area plans, zoning bylaws as well as contemporary built form standards. It does not seem reasonable to maintain the open-ended option for anyone to appeal all of that work and public investment in good planning. That does not strike me as in in the public interest.

Let approved plans be unappealed until the next 5 year review – not 2 years

I want to encourage the Province to be bold in supporting those cities and citizens invested in planning in such a way that the need for appeals is minimized. The two year period suggested in the OMB review document before allowing appeals is not helpful. Most plans I have seen take a minimum if four years to put in place. Some policies have taken 8 years for all aspects to be thoroughly studied, consulted and put into bylaws. The municipal investment in planning needs to last the full length of a 5 year review cycle. Appeals (if allowed) should only happen at the end of each review cycle for each policy tool (such as local area plan and zoning).

Allow the OMB to continue its role with small urban and rural municipalities

In the new planning paradigm I see emerging, the role for an OMB should become marginal in the major urban centres that can afford the cost of front-ending fair opportunities for all parties to influence plans though fairly balanced proactive methods of planning. Continue the role of the OMB in the other settings that lack the resources to have professionally run full scope planning departments.

Cities and especially citizens never win even if they win at the OMB

Please, do everything possible to minimize the need for the OMB. It is a place of last resort. No one at a City or a citizen’s group actually wins at the OMB. Unlike private sector development business interests, cities and citizens do not stand to gain extra profit above and beyond as-of-right, there are only costs combined with degrees of impact to existing members of the community. Inclusive planning is the only way that all interests have an equal opportunity to have their voice heard.

Remove the excess profitability of expert witness consultancies and expensive per diem costs

I have witnessed a self-serving profit motive to keep the current OMB format among subject area expert witness colleagues who derive a significant share of their professional incomes from the lucrative game of appearing as subject area witnesses at the OMB. The best per diem fees in planning and architecture occur at the OMB. No competitive bids go out for this form of planning compared with competitive community engagement contracts.

Not arguing enough for good planning at the OMB – self-limitation

I see too many municipal planners give up and fail to stick to good planning for fear of losing at the OMB. This happens not because they do not believe a policy is good planning but because they have been told by legal departments that it probably cannot win and it will cost too much to defend. I have found a culture of deference that undermines jurisprudence because adjudicators have not been hearing equally expert arguments to balance their reasoning from some cities and almost never heard expert arguments for citizens’ ideas and concerns. The precedents are skewed and unchallenged so the adversarial model does not actually operate.

Pay OMB members the same as the best or expect mediocre quality

Appoint the best in the Province and pay members what private sector consultants make.

We do not pay competitive salaries to attract Ontario’s most experienced and best experts in city building to be Board members. The composition of the Board does not overflow with the best talent yet it second-guesses decisions that often employ the best. Something is seriously out of balance. This handful of people controls a huge portion of the Provincial economy. We have world-class planners and urban designers in Ontario and more of them need to serve on the OMB.

Concluding comments

The new economy is tightly linked to the quality of urban built form and the lived experience of people. The creative economy runs on choice mechanisms and city economies compete with other cities in large part by fostering an engaged citizenry that makes intelligent thoughtful choices. The tribunal format systemically excludes interests that do not possess the economic resources to hire subject area experts and lawyers to direct their submissions to the OMB. It is far better and more inclusive to engage all interests ahead of time in a proactive planning process. A proactively planned process affords all interests (not simply the moneyed interests) time to negotiate research and educate people on any given perspective. A smart planning process demands that people participate years ahead of when a change in an OP and zoning is required.

Planning in the context of intensification requires a higher level of sophistication than we have seen before. So too, any appeal board must adapt and reflect that paradigm change. The disciplinary composition of the OMB is predominantly that of the law profession. Another third of the members have a general planning background. Few if any on the board come from the very best of these professions. The whole Provincial economy is dependent on the quality of the decisions this tribunal makes, yet few of the members come from the top cohort of professionals and academics.

I would like to see the Province do more than is presented in the OMB review materials and proactively create incentives that encourage planning instead of litigation. I am suggesting that it is not in the Provincial interest to foster the feeling that engagement is a waste of time if the OMB ignores plans that result from the 2004 reforms.

The focus should be on getting it right first, instead of planning based on what will pass at the tribunal.

Sincerely,

John Danahy

John Danahy, Full Professor, Emeritus,
Associate Director, Centre for Landscape Research
University of Toronto
http://www.daniels.utoronto.ca/resources/research/centre-landscape-research danahy@daniels.utoronto.ca
cell: 905 460-5564

cc: JWD

[Original Comment ID: 207241]