Onward and upward: The province has opened the door to reforming the long-reviled Ontario Municipal Board. What is the best way forward?

thestar.com
By Jennifer Pagliaro
February 17, 2017

It’s easy to miss the signs, posted in some neighbourhoods every 100 metres, telling residents of the things to come.

Each application for a new condo tower received by the city - requesting to build taller or denser than what’s allowed - warrants the notice: “A change has been proposed for this site.”

On Edward St., spanning Bay and Yonge Sts. in the heart of Toronto’s downtown core, one sign detailing the development proposal for a 35-storey condo tower affixed to a fenced-in gravel lot stands out. This building itself is not unique. There have been other requests for towers taller, more dense, just around the corner. A recently built 78-storey condo already looms in the distance. Multiple applications for future towers from 50 to 88 storeys have been submitted just north of here.

It’s the bright orange graffiti, lettering scrawled big enough to overtake the sign’s details that demands attention.

It reads: “ENUF.”

The Star has been reporting about how the Ontario Municipal Board, an all-powerful quasi-judicial provincial appeals body that often overrules the city in land-use and planning disputes, has created a challenge in managing Toronto’s unprecedented growth in areas like the downtown core, where proposed buildings such as the one on Edward St. are now subject to the final say of the OMB.

But experts, councillors, city staff and community groups are optimistic that this time the province’s plans for reform, expected this spring, will be substantial.

“We’re undertaking what is a very serious exercise for us as a government,” Ontario’s Minister of Municipal Affairs Bill Mauro said in an interview, noting a standalone review of the OMB was in his mandate letter from Premier Kathleen Wynne in 2015.

“I think people understand that we’re very serious about what we’re doing and we’re looking to move in the direction of much more local deference for local decision-making . . . We are making moves that would scope out potentially a lot of what can be currently appealed to the OMB.”

While cities such as Toronto have long advocated for the OMB’s abolishment or to be removed from its grasp, the province has ruled out those options, saying a venue to hear disputes is necessary.

Those pushing to limit the powers of the OMB say the most significant change would see the board become a “true” appeals body - something the province is considering.

Unlike an appeals court, which considers whether a trial judge has erred on a specific point of law, the OMB can essentially hear appeals “as new” or in what’s called “de novo” hearings. These hearings start from scratch, with both sides making arguments as if a local council or municipal staff never weighed in or ruled on the proposed development in the first place.

That means that a developer can apply to the city to build taller or denser than what’s allowed or in an area not permitted and simply wait until the city’s deadline to respond has expired. Then, the builder can submit their application directly to the OMB, where academic research of available decisions and Star analysis has shown they are more likely to have their development approved.

And when city staff or council have pushed back on a building, the reality of de novo hearings has at times created an absurd dilemma - instead of the developer returning with an altered proposal lessening the height and density of a building, some have come back asking for more.

After a developer applied for 42 storeys at Yonge St. and St. Clair Ave., staff recommended refusal in 2015, saying it was overdevelopment of the site. When the developer, Terracap Management Inc., appealed to the OMB, it increased the ask for the number of storeys to 47. The appeal has yet to be resolved.

Councillors say bypassing city hall makes council’s role irrelevant and disregards the communities that councillors are elected to represent, shows a lack of deference to local issues, and ignores city planners’ best laid plans.

“That’s not an appeal. That’s just, take two and we’ve got better chances,” said Councillor Josh Matlow (Ward 22 St. Paul’s), who represents the densely populated and fast-growing Yonge-Eglinton area, including the site at Yonge St. and St. Clair Ave.

Neighbourhoods like these in the Yonge-Eglinton area are crunched for resources. The North Toronto Memorial Community Centre, seen here, will soon close for needed repairs, leaving residents without a local recreation facility.

Though 2006 reforms to the province’s Planning Act required the OMB to “have regard” to local decision-making, city staff, councillors and communities say the OMB has failed to apply that principle for the past decade amidst rapid growth in Toronto.

In a submission to the province on potential reforms, city staff explained that getting rid of “de novo” hearings would force the OMB to consider whether council made a decision “within a range of defensible outcomes.” Unless the city’s decision did not follow local or provincial policies, the OMB would not be able to overturn it.

Council backed that request for change along with 30 other recommendations in a near-unanimous vote in December.

Toronto is not the only city pushing for that major reform.

“If at the end of the day we can’t uphold our official plan, well then it’s not worth the paper that it’s written on and you might as well just upload the whole Planning Act and all the planning decisions to the province,” said Aurora Councillor Tom Mrakas, who led a summit on reforms with 13 other GTA municipalities.

“If we overstepped the process or the law, well than the OMB is there to hear such a case, so that way it doesn’t go to the court system.”

Richard Joy, who was previously the senior policy adviser to the minister of municipal affairs and worked on the 2006 reforms to the Planning Act, said much of what they hoped to achieve wasn’t accomplished.

“I do think that getting rid of ‘de novo’ hearings is going to have a significant impact on delivering what was, I think, intended policy 10 years ago but just hasn’t been realized,” Joy said. “I do think that piece is the number one.”

Other possible reforms should not be minimized, he said.

Though the city has long had the power to create a local appeals body to deal with more minor disputes, it has only just implemented one. He said disputes should also move toward mediation and avoid what are now adversarial, court-like hearings. The province is considering whether all appeals must attempt mediation before proceeding to a hearing, what Joy said would be a “huge cultural change.”

“I don’t know that this is the final step toward legislative perfection,” he said. “But I think it’s a step that would move the weight of decision-making significantly to the municipalities more than it is today while at the same time preserving, I think, a very important role of the OMB historically that is a big reason why Toronto has really some of the best densities and mixed-use and transit-oriented development in the continent.”

Speaking recently at a town hall in her Don Valley West riding, Premier Kathleen Wynne, who was previously the minister of municipal affairs, told the audience her office gets many calls about the OMB.

“We need to have a way to resolve disputes,” she said in a video viewed by the Star, noting the OMB would not be abolished as some have pushed for. “I will admit that the changes have not gone far enough. I thought that they would create more of a respect for city council’s decision. They haven’t and so we have to go farther.”

The development industry is more cautious about possible changes to the process.

Steve Deveaux, board member and past chair of the Building Industry and Land Development Association (BILD), the largest group representing GTA development companies, said it’s a “vast generalization” that developers try to circumvent the city hall process.

The industry’s major point of contention has long been that the city’s zoning bylaws are “woefully outdated” and force developers into a political process. He said those rules need to be updated before reforms take place.

“The OMB relies on professional evidence. It does not rely on political decisions. So, if we had an improved environment whereby zoning was updated and official plans were updated, we might be having a different conversation about the OMB. But that’s not the world we live in,” he said.

“If we’re going to give more deference to a municipal decision, a council decision on something, than what test, what standard, are we holding that decision to?”

At city hall, councillors have argued that updating the zoning rules would only set the bar for taller and denser building applications while the threat of the OMB remains.

Deveaux said he didn’t reject the idea of mandatory mediation but said it would require “significant” new resources and “rules of engagement” around “good faith mediating.”

“By and large good developers and builders want to work through the process. They don’t want to be delayed an extra year to year and a half on going to an OMB hearing and having a sort of stress-filled relationship with the city,” he said.

He agreed cities are challenged under the current system to plan long-term for growth, but argued it is the province and not the development industry that needs to step up.

“I would say that we are paying our share, I would say that we are participating in that,” he said.

Those building in Toronto still pay far less in development charges - what goes towards growing city infrastructure - than in Mississauga, Brampton, Markham or Vaughan, according to a city staff comparison from October.

Kerri Voumvakis, the city’s director of strategic initiatives, policy and analysis in the city planning division and the architect of the city’s submissions to the province, said the suggested reforms are “raising the right questions” but the real challenge is the next step.

“The devil’s going to be in the detail,” she said, “How do they actually act, enact it and what do the words finally say?”

Other changes the city has pushed for are not allowing appeals to amend the city’s secondary plan, which sets out how specific neighbourhoods like Yonge-Eglinton should be built up, for at least five years.

Voumvakis said allowing appeals of those kinds of large studies disregards years of work and extensive community consultation, including with developers and landowners.

“The day that the ink is dry on the approval, somebody shouldn’t be coming in with an application with another idea,” she said.

Gregg Lintern, the city’s director of community planning for the Toronto and East York district put it this way: “We’ve got to give plan-making a chance to work and the benefits that come with it.”

Others are more skeptical real change is coming.

“I won’t believe it until I see it,” said Aaron Moore, an associate professor at the University of Winnipeg and fellow at the University of Toronto’s Institute on Municipal Finance & Governance, who wrote a definitive study of the OMB and urban development called Planning Politics in Toronto.

He said the language that the OMB should “have regard” to local decision-making was intentionally weak and the province knew it.

But one of the reasons the OMB exists is because Ontario has traditionally had the “most flexible planning laws in North America,” he said, noting a city such as Toronto can make changes to its official plan without oversight from the province, which happens on a regular basis.

“The OMB in some respects is a venue to put some brakes on that,” Moore said. “I always see incremental change as the better solution than just ripping the Band-Aid off.”

Community groups say real change can’t come soon enough.

“This process continues to be fundamentally inefficient, undemocratic and inequitable, as has been noted also by other observers,” says a letter from the Federation of North Toronto Residents’ Associations, an umbrella group representing 30 community associations in the Yonge-Eglinton area, to the province.

“Ontario’s existing planning system, where most important planning decisions are now in the hands of appointed and unaccountable referees with an overt bias for ‘expert opinions,’ is seriously flawed.”