John Sewell: “To OMB or not to OMB, that is the question-Movement afoot to keep local planning decisions local”

March 5, 2012

in Ontario Municipal Board


Village Post Vol. 21 Issue 7 (March 2012), p. 11.

“With all the confusion about political direction at city hall, one wonders whether less oversight of city council decisions makes sense.

In February city council voted overwhelmingly to ask the province to remove the city from the control of the Ontario Municipal Board (OMB). The OMB is a provincially appointed panel that developers and citizens appeal to when they are unhappy with city planning decisions. It reviews a lot of decisions made by council: last year it heard 121 cases that originated in Toronto. Many times the OMB overruled city council, a few times to the delight of citizens but mostly to the delight of developers.

It seems odd that a body appointed by another level of government is able to so easily overrule locally elected politicians. No body similar to the OMB exists anywhere else in Canada, and city council, administering the sixth largest annual budget in the country, wants change.

Even odder is the way the OMB makes decisions. In the judicial system, the Appeal Court never holds a new hearing but instead confines itself to whether the trial process was fair, adhering to well-established rules about evidence and the right to be heard and to the intepretation of law as it applies to the facts of a specific case. If the process wasn’t fair, the Appeal Court often orders a new trial. Trial decisions can be upset if the Appeal Court comes to a different conclusion than the trial judge about the interpretation of law.

When the OMB hears an appeal, it starts from scratch. It holds its own hearing and then makes a decision about what it thinks is good planning. There’s no agreement about what constitutes good planning and there’s precious little law to guide the OMB on anything it does. In essence, there’s no real way of holding the OMB to account to anything. Most members of the OMB are not lawyers although there’s no reason to think lawyers are capable of making better decisions on city business than anyone else.

Those are all strong arguments about the challenge the OMB poses to city council. But, argue some resident groups, if there is no OMB, how do we challenge city council when it pays no attention to its official plan (the document from Ontario’s Planning Act that council is required to enforce).

Toronto City Council treats its official plan with disdain, amending it eight or 10 times every single council meeting.

Many residents think developers have undue influence on councillors, either because of campaign contributions or because of a penchant to favour growth above intelligent decisions, or the desire to snag free money from a development under Section 37 of the Planning Act, which allows city council to demand money in return for more development density.

Or, say some developers, where do we go when city council turns down a development proposal that’s good for the city but is opposed by a few local residents? The main trade group, the Building Industry and Land Development Association (BILD) argues in favour of the OMB, saying it is an “impartial adjudicative tribunal, further removed from local political pressures.” Fairness seems to be in the eye of the beholder, or rather the victor at the OMB, which is often the developer.

The city’s case for being extracted from OMB oversight would be strengthened if the city engaged in strong land use planning, if it adopted a realistic official plan providing guidance to developers and residents, so everyone knew what to expect.

Appropriate development is something that’s good for the city, but we need a plan that says what’s appropriate where, and that’s something the city does not have and apparently has no desire to create.

We need a plan that won’t be amended more than once or twice a year. Once we have that, oversight by the OMB will not be needed. Until then, it’s unlikely the province will agree to let city council’s land use decisions stand without a review process.”

This article included a photograph of the Four Seasons Hotel with the following caption: “When the Four Season was redeveloped even Queen’s Park had OMB issues.”

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