Ontario Municipal Board Reform
The provincial government has commenced a review of the scope and effectiveness of the Ontario Municipal Board (OMB), an important part of the province’s land use planning system. The OMB is a quasi-judicial administrative body that acts as a court of appeal and renders decisions based on planning documents which are primarily the Ontario Planning Act and two municipal documents being an Official Plan (OP) and Comprehensive Zoning bylaw (ZB). These planning ‘rules’ are public information so that citizens know what can be done. The Planning Act generally describes how land use controls may be established in the province including who may establish the rules, the processes and procedures that must be used. The Official Plan is a ‘road map’ for land use and generally describes what the city would like to achieve over the next five years and beyond according to the horizon stated in the official plan. Finally, the zoning bylaws provide the details needed to implement the OP, including specific land use controls, and so these two documents must be well synchronized to achieve the desired results.
It is important to note that, as with the court system, the decisions made by the OMB are based on planning evidence, provided by expert witnesses under oath, which ensures that long-term public policy objectives, rather than short-term local political calculations, are upheld. Without an independent tribunal that specializes in planning law, such as the OMB, it would be more difficult to achieve Provincial and municipal policy goals. Without an administrative body for third party review, land use related disputes would end up in the court system. We believe that the court system would not have the same level of planning expertise, which could lead to inconsistent and unpredictable results that are not in the best interest of the public, while increasing the costs of participation for everyone including public opponents. Furthermore, the existence of an informed tribunal to adjudicate planning appeals has a positive role in focusing the work of everyone to work within the established planning regime with integrity.
The fact that the OMB makes its decisions based on objective, fact based planning ’rules’ and evidence has resulted in a consistently high quality of urban growth across Ontario. The province and cities get to make the planning ‘rules’ and the OMB has the responsibility of enforcing them. As with any court or adjudication system, there will always be perceived winners and losers or degrees thereof. Those who do not obtain the result they want, often become understandably emotional and look for ways to get what they want by having the ‘rules’ changed. Objections to the OMB are not made on the basis that it made a bad planning decision based on the evidence. The objections are based on some people not getting what they want and preferring to uphold a political decision which is likely not based on the established planning rules. This is the difference between an objective planning based process and a political decision and forms the basis of the review.
There are two categories of changes currently being considered for the OMB. The first category deals with making the operations of the OMB more efficient and user friendly and are generally supported by residents, government and industry alike. One proposal is to increase the OMB’s resources so it may offer more assistance in matters in order to achieve better, faster, more efficient decisions. Residents and Community Associations could receive professional planning advice up front through an enhanced Community Liaison Office which would give them better information on making a determination about their chances of success or failure. Another proposal is to consider or require mediation for all appeals to reduce the number of full hearing cases that must be dealt with by the OMB. Almost 50% of the appeals before the OMB are from Committee of Adjustment decisions dealing with very site specific issues such as the location of a deck and yard setbacks – another proposal is to create new local appeal bodies to deal with these issues rather than going through the Board process.
The second category of changes being considered would alter the nature of the OMB by revising its responsibilities and its authority. Instead of acting as a quasi–judicial body able to make evidence based planning decisions it would be revised, some would say reduced, to a highly subjective, role to determine whether council decisions are ‘reasonable’. Consider for a moment, the opinions that exist in today’s diverse culture on any matter whatsoever and what the challenges would be in determining whether any of them were ‘reasonable’. This form of highly subjective, decision making is what we must try to avoid, not what we should be striving to create. The City of Ottawa Council recognized this clearly in their OMB discussion of Wednesday November 23rd when they voted 14-9 against a motion that would require the OMB to review Municipal Council decisions on a standard of ‘reasonableness.’
Another change being considered proposes provincial government funding to cover the costs of individuals or CAs who launch appeals. This would grant favoured status to one party in what is supposed to be a fair and level playing field for all participants. As with any court system case, individuals, companies or organizations must weigh the costs of pursuing legal action against the odds of winning or losing. This is the basis of all legal activity and should be no different for OMB operations. The Board is already, according to many, overly accepting of frivolous and vexatious appeals in not awarding costs to proponents. Free funding of appeals going forward would result in a dramatic increase of appeals, bog down an already overloaded system and require further taxpayer support.
There are a number of well-intentioned residents and elected officials who feel that their decisions should prevail at all costs. The majority believe that any system requires checks and balances to ensure that fair and equitable solutions can be assured. We can only hope that those who make the final decisions believe in a balanced approach to resolving urban growth issues but if not, then we should have the OMB to provide the needed checks and balances.