Ontario Government Shoots the Messenger

The Ontario Municipal Board (OMB) has been in existence in one form or another for over a century. In its most recent incarnation, it has been a quasi-judicial body responsible for enforcing government planning and land use policies. The Board ruled on a wide range of commercial and industrial conflicts but it was the residential domain where trouble has been brewing. This sector has become increasingly controversial over the past two decades as municipal and provincial governments introduced ‘Smart Growth’ and encouraged intensification while affected residents became increasingly hostile towards it. Because the OMB’s mandate was to enforce government planning policy, its decisions favoured projects that increased density. This was misinterpreted by project opponents as the OMB favouring developers and builders when in fact, the Board was only doing its job by favouring government policy.

The ‘Not In My Back Yard’ (NIMBY) groups became increasingly frustrated and often took their anger out on municipal councillors. These elected officials did not appreciate having a professional objective body make legal planning decisions that were in opposition to their political wishes, even though intensification policies were what they voted for in approving their Official Plan and Zoning bylaws.

Residential opposition to projects placed government in a difficult position because more densely populated cities are needed to achieve the ridership levels necessary to pay the operating costs of expensive LRT systems. If this isn’t accomplished, the additional costs will have to be absorbed by residents in the form of higher property taxes. This problem is so serious that the provincial government introduced a provision to deal with it in their recent announcement that prevents appeals of projects in close proximity to transit stations.

Throughout the OMB review process, provincial Ministers consistently advised industry that the existence of the OMB was not in question and their government was focused on making changes that would create a more user friendly, less expensive process to benefit project opponents. But on May 16th, politics prevailed and these same Ministers announced the elimination of the OMB to be replaced with a new body called the ‘Local Planning Appeal Tribunal.’ The new tribunal will be mandated to give greater weight to the decisions of local councils. This would be achieved by eliminating “de novo” hearings for the majority of planning appeals. The term “de novo” has been used to describe how the Ontario Municipal Board deals with appeals of municipal land use planning decisions, by considering the same issue that was before the municipality as though no previous decision had been made. It was what allowed the OMB to ensure there was a consistently high quality urban environment across Ontario and prevented municipalities from creating fiefdoms.

It’s still too early to know exactly what the government has in mind but if this new Tribunal puts local politics ahead of Smart Growth planning, it will only serve to empower NIMBY councils to make planning decisions to get re-elected. The role of the OMB has always been to take the politics out of local planning and ensure that decisions are made based on evidence, ‘good planning,’ and conformity to provincial policy.

To give more weight to local politics will detract from provincial goals. For more than 10 years, the provincial government has been demanding the increase of density and intensification in existing communities across Ontario. It is difficult to understand how the Province hopes to achieve Smart Growth goals by eliminating the OMB when councillors are pushing back on intensification. If this new Local Planning Appeal Tribunal is simply going to be a rubber stamp for obstructionist councils, then the Province’s demand to optimize housing supply and provide diverse housing options will fail. The result will be continued escalation of housing prices and affordability challenges. Marcus Gee wrote a column in the Saturday May 20th Globe and Mail that described these problems and how the liberals were worsening the housing crunch.

The government Media Release speaks volumes about their political priorities with the headers ‘Faster, Fairer and More Affordable Planning Appeals’; ‘Free Legal and Planning Support’; ‘Sheltering Major Planning Decisions from Appeal’; and ‘Giving Communities a Stronger Voice’. The number of Ontario residents concerned and affected by inner city projects is only a tiny fraction of those impacted by lack of housing supply and constant price increases but there is nothing mentioned about these issues in government’s media material.

One unfortunate aspect of the changes being made is that it will take a considerable amount of time to demonstrate results. It will only be the cumulative results of dozens of appeals over many years that prove the negative impacts and even those will be subject to a degree of political interpretation. The government has clearly decided that the short term political gains leading into an election clearly outweigh the medium and long term downside of causing further damage to Ontario’s housing supply and affordability problems.

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