Developers racing to OMB ahead of new provincial planning rules
As Toronto awaits new rules that will shift the balance of power long held by the Ontario Municipal Board, uncertainty over how to transition from the old system to the new has city officials and communities warning of a rush of problematic applications.

TheStar.com
Nov. 27, 2017
Jennifer Pagliaro

City officials are warning that developers are rushing en masse to appeal problematic applications to the powerful provincial tribunal that oversees land use planning in order to avoid a less-favourable system.

City data shows the number of appeals to the Ontario Municipal Board on major development applications to the city have more than doubled compared to the same period last year.

Despite the current instability, a provincial official told the Star new rules will not be made retroactive to earlier this year, as the city had requested.

“The situation we’re dealing with is an appeal a day,” said Councillor Joe Cressy, who represents King-Spadina, one of the fastest-growing areas of the city.

At a public meeting on a proposed development last week, Cressy said a representative for a developer told the room: “We’re sorry for subverting the process and we know that this is not an application that you or the city can support, but we needed to quickly submit an application given the uncertainty at the provincial level.”

That uncertainty, Cressy said, “is resulting in not only flash applications and appeals but at this point there is a very real risk that we end up with a lot of bad development that nobody wants, probably including the developer.”

Last year, the provincial government outlined its plan to table new legislation that would significantly shift the power dynamic created by the more than 100-year-old Ontario Municipal Board, which today has the jurisdiction to overrule city council decisions and has largely favoured developers looking to build taller and denser towers.

Those new rules — and a rebranding that would strip the OMB title for a new one, the Local Planning Appeal Tribunal — are expected to be made law after debate continues at Queen’s Park on Wednesday.

But in the interim, city officials and local communities have decried a limbo state they say has led developers to try to squeeze applications through under the old system.

In that void, planners and councillors say developers are submitting applications without first consulting with the city or the community in order to start the clock on when they are allowed to appeal to the OMB — either after 120 or 180 days, depending on the type of application. And those who had not yet appealed existing applications are rushing to get in line at the tribunal.

In 2017, the number of major appeals at least doubled in all four corners of the city between May 16 and Nov. 24, according to city data compiled by Councillor Josh Matlow’s office. In the downtown, East York and midtown areas, the number of appeals in 2016 was 24 compared to 50 in 2017.

Overall, there were 38 major appeals in that period in 2016, compared to 85 in the same period in 2017.

 

“Some applicants have informed city staff that in the absence of understanding how transition will take place they are advancing appeals,” said Kerri Voumvakis, director of strategic initiatives, policy and analysis in the city planning division. “It is critical that all parties understand the transition provisions related to the bill. In the absence of this certainty, I anticipate that applicants will continue to appeal.”

Joe Vacccaro, president and CEO of the Ontario Home Builders' Association, said developers are acting quickly to avoid uncertainty.

“If we don’t know what the transition rules are, lawyers are saying to the developers, if you have appeal rights . . . if you do not trigger those rights today there’s no guarantee tomorrow that if you have to appeal it goes to the OMB,” he said.

Earlier this month, council requested the province make the new rules retroactive so they apply to appeals submitted after the new legislation was first introduced at Queen’s Park on May 30.

But on Friday, a spokesperson for Minister of Municipal Affairs Bill Mauro told the Star that won’t be the case.

“If passed, the bill would allow for a transition regulation that would apply the bill’s changes to appeals that are filed after royal assent, but prior to proclamation,” Mark Cripps said in an email.

“Making first reading the threshold for transition would mean almost a year’s worth of OMB cases would be left somewhere between the old system and the new. The resulting confusion — the legal, administrative and financial impact — would be significant.”

A transition plan would be posted “in the coming weeks,” he said, adding the government would welcome feedback before it is finalized.

But the current limbo that has existed for more than a year, councillors and community groups say, has put additional pressure on areas currently buckling under unprecedented growth — a reason they say the reforms were needed in the first place.

“For far too long, the OMB has decided how Toronto’s neighbourhoods will grow without any regard for our residents’ quality of life,” said Matlow. “We need to address overcrowded schools, packed subways, a lack of affordable childcare, and other social supports that make a community livable before new condos are approved in areas like Yonge and Eglinton.”

Geoff Kettel, co-chair of the Federation of North Toronto Residents’ Associations, which represents dozens of residents’ groups, said they’ve been watching the reform process closely and with anxiety.

“Income tax changes at budget time are always effective as of the announcement date. It is stupid for a government to introduce an important reform but let affected entrepreneurs have a six-month loophole in which to accelerate the ventures that the legislation is meant to prevent.”