Ubiquitous change
Navigating OMB reforms

NRU
Jan. 17, 2018
Miriam Bart

The post-OMB world poses differing challenges for planners, lawyers, developers and municipal councillors, and there is considerable speculation about what the new norm will look like.

Yesterday, StrategyCorp principle John Matheson moderated a ULI panel on how to navigate the forthcoming changes to land use planning appeals. Among other questions, Matheson asked the four panelists to share how these changes will affect their respective professions, and whether municipalities or the province will be empowered by the reforms.

PL ANNER— Bousfields partner Emma West said that the planning profession will face some challenges in terms of the time it will take to write planning rationales because planners will no longer be called as expert witnesses in the proposed appeal process. She also said that Planners will have to get more information at the beginning of the planning process.

“In the [current] process... there is certainly a tonne of work that leads up to the appeal. We’ve put in the application, we’ve written a number of reports, there’s a lot of detail and effort in that part of the process but once you get into the appeal there’s a lot more effort and detail in the information and exchange of information that occurs at that point. I think we’re going to flip that to the front end.

“Our documents have to stand [in the new appeal process]... the staff report and planning rationale are going to be used as evidence if you go to that appeal. I think it’s really important that everyone is focused and everyone understands that it’s going to take us more time to write that report because we need to make sure that everything in there is tight... [Also, in terms of community consultation] it seems that there’s going to need to be a lot of effort up front...understanding what the community is looking for.”

LAWYER— Aird & Berlis partner Jane Pepino said that although there will be a lot of changes, much will remain the same under the new regime. However, lawyers will need to spend a lot more time on strategy and working with consultants, while remaining flexible in the event that provincial policies change between the date of application or the time of appeal.

“What we are going to end up doing is spend way more time at our desks pushing paper because of the restriction on oral advocacy at the board and possibly also at municipal levels. I don’t know how City of Toronto is going to cope… because there are going to be some very significant issues” she says.” But I can predict that—although at the end of the day not a whole bunch is going to change...—it will take far longer, it will take a lot more money and you’re better off, I think, to understand that front end loading and lots of consultation is going to involve the role of lawyers to be strategic.”

Disputing the provincial claim that the proposed changes “will give communities a stronger voice in the land use planning process,” Pepino told participants that the changes will have the opposite effect.

“No, [these changes will not empower] local decisions for sure, and not for citizens absolutely... Nowhere does it say, when push comes to shove between province and municipality that the municipality can lead. It says in fact the reverse. And for the first time, rather than saying the decision has to have regard to the Provincial Policy Statement...it’s very explicit and [says, municipal decisions must] conform or not conflict with those statements. The province is getting much more prescriptive.”

DEVELOPER—
Hullmark Developments vice-president Leona Savoie said that the changes from the OMB to the Local Planning Appeal Tribunal will require that developers do more consultation and include extensive research and information into the application. She added that that’s what good developers do already. From the developers’ perspective, the biggest concern is about how much time applications will take.

“[Time], that’s what I’m concerned about. As a developer I’m just concerned about being in a spin cycle before you can even apply to an application. Are you going to get anywhere? Are you going to get any good feedback from consultation? Right now I think most developers in the room might know that when you meet the staff, committee, and councillor initially you don’t get many answers out of them right now. So I think there will be a shift in mindset from all parties involved that we’re really going to get good feedback at the beginning.

“Should a developer be concerned? I don’t think so. Maybe not. But these are the big unknowns to the development world, or at least those in the game of consulting and preparing good application packages up front.”

COUNCILLOR—
City of Toronto ward 27 Toronto Centre-Rosedale councillor Kristyn Wong-Tam said the provincial plans are intentionally vague so that the policies can apply to all municipalities and that this places the onus on the municipality to fill in the blanks. She said that city councillors are already swamped with all the items on community council agendas, which can have around 125 items that require their review. She says that there will need to be more dialogue and collaboration because council will have to rely heavily on staff reports and that may require strengthening the resources available to municipal planning divisions.

“Council decisions are generally based on staff recommendations. It’s a rare occasion when city council as a whole overturns the decisions of staff as it pertains to planning matters... Very few councillors will want to be on the outlier side of that. And I think that’s a good thing because city planning [staff] has to sharpen their pencils and make sure that their planning reports are full of information to make sure it is all written, especially as they head to this new appeal process.

“It also means that council as a whole is going to have to read those reports [and that], in my opinion, is a very good thing. I want council to get far more behind city planning staff on these decisions. We may disagree but are going to have to evaluate very seriously and consider the consequences to the council and city if we overturn staff reports.”