OMB reform and committees of adjustments - uncertainty remains

NRU
Nov. 8, 2017
By Dominik Matusik

With royal assent of Bill 139-which includes the provincial government's OMB reform package-anticipated this month, the impacts on committees of adjustment seem near-negligible, but there is no shortage of uncertainty among experts.

Bill 139, the Building Better Communities and Conserving Watersheds Act, will repeal the Ontario Municipal Board Act and establish a new body- the Local Planning Appeal Tribunal-to hear land use appeals. However, what the effect will be on decisions made by municipal committees of adjustment is not entirely clear.

McMillan LLP partner Mary Flynn-Guglietti told NRU that the intention of the bill is to empower councils and, therefore, there will likely not be changes made to committee of adjustment appeals.

"I'm not certain whether or not it's really going to make much of a difference to [committee of adjustment] appeals," she says. "Because it's not as if that's a decision of a municipal council... The idea behind [Bill 139 is] that it's a duly elected council who supposedly has given a great deal of thought to whatever applications are in front of it for official plan amendments and rezonings. And they're guided by their official plan, they're guided by provincial policy, and therefore what should happen is that only very narrow appeals [of municipal decisions] are even allowed."

She adds that the provincial government has not even waited to see what effects the Smart Growth for Our Communities Act will have before forging ahead with OMB reform. Enacted in December 2015 that legislation restricts rezoning applications on sites which have undergone a rezoning in the previous two years.

"A lot of developers were doing their rezoning and getting it through and then going to market and saying 'well, I need to get more height or more units' and then going back and trying to do it through the committee of adjustment," Flynn-Guglietti says. "Some people thought that that was pushing the envelope... When [the provincial government] first came out with Bill 139, people were saying 'wait a second, you didn't even give the changes that you made under [the Smart Growth for Our Communities Act] to really see where those OMB decisions were going'."

Ontario Association of Committees of Adjustment president Denise Rundle told NRU that, while she does not anticipate changes from a process perspective, there may be increased pressure on committees of adjustment from applicants trying to push the envelope on what is considered a "minor" variance.

"[The provincial government hasn't] identified any new processes for committee of adjustment, necessarily," she says. "But there will be impacts, I think, just by the changes that they're making to the higher order development applications- official plans and zonings and subdivisions-my fear ... is the potential for larger development applications being put in front of committees of adjustment. Especially with applicants trying to avoid amending a zoning by-law. And we've certainly seen that in cases in the larger urban municipalities, City of Toronto being one of them, obviously. But I'm now seeing, in smaller municipalities surrounding Toronto, and in growing municipalities, the same applicants pushing the envelope beyond the committee of adjustment process... I think that's where we're going to see the impact on [committees of adjustment] because of the longer appeal processes that are going to be imposed with the new reform."

While Toronto has established a local body to hear committee of adjustment appeals, Rundle does not think it likely that other GTHA municipalities will follow suit.

"It's going to come down to finances," she says. "Because even for the City of Toronto to set up a local appeal body, it cost a tremendous amount of money in resources, in finances, operating costs and continuing it. Because you need to pay these adjudicators, you need to set up a proper office to administer it, and staff to administer it. Other municipalities simply don't have it. A lot of them have outside planning staff even."

Rundle says that, currently, many committees of adjustment rely on their secretary treasurers who often receive little to no training in planning.

Municipal affairs spokesperson Praveen Senthinathan said, in an email to NRU, that there is no change to committee of adjustment processes, but municipalities continue to have the option of setting up a local appeal body.

"Bill 139 proposes that there would be one Local Planning Appeal Tribunal, which would provide services province-wide instead of the OMB," he says. "Committee of adjustment matters would be appealable to the Local Planning Appeal Tribunal unless a municipality has established a local appeal body that has responsibility for minor variance appeals ([its] authority can also include consents).

"To date, only Toronto has established a local planning body... All municipalities in the province have the ability to establish a local appeal body, subject to criteria set out in the Planning Act. Bill 139 does not propose changes in this regard; however if the bill passes, local appeal bodies would be able to adjudicate site plan appeals in addition to their current authority to adjudicate minor variance and consent appeals."

Senthinathan adds that decisions made by LPAT on committee of adjustment appeals will be final. This differs from decisions made on appeals of council decisions, which will be referred back to council for reconsideration.

Flynn-Guglietti says that there are still uncertainties surrounding the new legislation.

"The problem that we have right now with Bill 139 is we don't have the regulations," she says. "And a lot of this has been left up to regulations... The board is going to have to come up with new rules. And we haven't seen the regulations on the legislation and the rules from the board will come after that... There's still a lot of question marks. But as I see it right now, [committee of adjustment appeal] hearings [by LPAT] will still be trial de novo and appropriately so because they're not a council decision."

Bill 139 is expected to receive royal assent this month.