Overhaul necessary for good land use planning
The following is Mike Schreiner's submission to the OMB review.
Dear Ken Petersen,
The Ontario Municipal Board (OMB) is broken. It urgently needs to be overhauled.
If an overhaul can’t be completed properly, the OMB should be eliminated.
The OMB should be a tool that supports good land use planning - a body that will stand up for vibrant communities and good planning laws, while also protecting our farmland and green space.
But the appeal process is onerous and expensive for citizens to participate. The board frequently overturns local democratic decisions in favour of wealthy developers. Board decisions also ignore provincial planning laws.
A power imbalance plagues the OMB — one that favours developers over community organizations, citizen groups and even municipalities.
We’re left with a legacy of urban sprawl, poorly planned communities and higher taxes that fund inefficient development.
Developers represented by high priced lawyers spend hundreds of thousands or even millions of dollars to get approvals. They can then write these off as a cost of doing business.
How can citizens and community groups possibly compete, spending their own after-tax dollars? Citizens who want a say in shaping their communities should not be penalized or face barriers to participate. Municipalities should not have to spend limited tax dollars on expensive appeals.
Ontario must overhaul the OMB to ensure that it hears citizen voices, protects prime farmland and develops livable communities. We need a planning appeals body that follows municipal and provincial laws and is accessible and affordable for everyone.
Let’s agree we need a complete overhaul —a band-aid won’t do the trick here. The overhaul should include these transformations:
Reign in the power of the OMB.
The OMB, as an unelected board appeals body, should not be able to overturn provincial and municipal policies. The province should restrict appeals of municipal decisions that are in compliance with Official Plans and the Provincial Policy Statement. In other words, if local decisions comply with local and provincial planning laws, they should stand.
Planning is a public process, and we must restore public trust, participation and democratic decision making. The OMB should not be able to overrule provincial policy or rewrite municipal policy.
Hear all future greenfield development applications at the Environmental Review Tribunal.
The ERT, while far from perfect, has more technical expertise and experience in dealing with issues related to source water, wetlands, farmland, wildlife habitat, First Nations’ heritage, and ecosystem protection. The ERT also understands that climate change is one of the most important environmental issues we face as a society.
Planning appeals relating to greenfield sites that involve environmental issues and environmental features are often complex. ERT members have the technical and legal knowledge to deal with these issues. The OMB, by contrast, specializes in planning disputes. Once the ERT has dealt with greenfield disputes, the OMB, if needed, can deal with any remaining planning disputes related to the appeal.
Support citizen participation.
The OMB should not intimidate and restrict citizen participation. The high cost of OMB hearings is a barrier to citizen participation. Intervenor funding is needed to provide citizens with full and fair access to the OMB.
The high cost of OMB hearings tilts the balance of power in favour of developers with deep pockets. They can approach OMB hearings as a cost of doing business, while citizens acting in the public interest face financial barriers and risks to participate.
If the province moves forward with a mediation process, citizens should receive funding to participate in the mediation process as well.
Hearings should be open and transparent to the public. Hearings should be video recorded (publicly available) and open to the media. Some citizens have reported being intimidated or even harassed at OMB hearing with no recourse due to the closed nature of hearings. Closed-door intimidation should not be a barrier to citizen participation.
In addition, the Liaison Office must be improved and publicized to provide more support for public participation in OMB hearings.
Lower the cost of OMB hearings.
The province must take steps to lower costs and shorten hearings, for example, by requiring written submissions for minor variances and severance appeals. The high cost of OMB hearings not only prevents citizen participation, it also creates a barrier for municipalities. Municipalities have in the past reached “compromises” with developers that violate good public planning in order to avoid the costs of an OMB hearing. OMB hearings are not an efficient use of municipal tax dollars.
Eliminate exorbitant cost claims by developers.
It’s time to stop developers from making huge, million dollar claims for costs against citizens who prepare and argue cases at the OMB. Cost awards, or even just the outrageous cost claims, are an intimidation tactic that prevents citizen participation. Cost awards should be limited to $5,000 against citizens’ groups.
If a case is truly without merit, the hearing shouldn’t proceed. SLAPPing citizens with costs claims that cost as much to defend as the actual hearings is a threat to our democracy and public participation in the planning process.
Restrict “De Novo” hearings.
The only time the OMB should be authorized to overturn a decision made by a municipality/approval authority is when that decision does not follow local or provincial policies, or involves paving farmland or greenfields. There are cases where a de novo hearing may be appropriate. Citizens should not be forced to challenge the “reasonableness” of Council decisions when making an OMB appeal. OMB decisions should be based on application of the most up-to-date planning policy. OMB hearings should only occur after all evidence has been submitted for consideration.
Increase accountability and rigour by requiring two-person panels.
Putting all the power into a single adjudicator means rulings can be biased, subjective and arbitrary. The province must also improve selection criteria and process for OMB members. The province should also develop a formal complaints process to stop board members from unjustly penalizing citizens’ groups for perceived slights or justifiable criticism.
Consult First Nations as a matter of course.
Ontario’s Planning Act notification regulations are inconsistent with legal requirements for aboriginal consultation. For example, O/Reg 543/06 gives notice of planning decisions to municipalities, school boards, Hydro, natural gas utilities, etc. etc., but only give notice to First Nations if the project is within 1 km of a Reserve – even if the development affects First Nations’ rights. This needs to be amended so First Nations are consulted as a matter of course.
Ontario’s population is projected to grow by 4.2 million in the next 30 years, with 2.8 million more people projected to move into the GTHA. There is no doubt that we need to plan for this growth properly.
Ontario must get serious about protecting prime farmland and source water regions. We must prevent sprawl to meet our climate change commitments and reduce gridlock. We need to plan for vibrant communities where citizens can live, work, invest and play.
It is wrong that deep-pocketed developers can use the OMB to sabotage these goals and run roughshod over citizens and communities. The OMB should not be used as a tool for developers with deep pockets to destroy prime farmland and shut out local citizens.
Do the right thing. Overhaul — or if this can’t be done, eliminate — the OMB today.
Submitted to 2016 Ontario Municipal Board Review, EBR file 012-7196 December 19, 2016 to:
Manager, Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division
Provincial Planning Policy Branch
777 Bay Street
Toronto ON M5G 2E5
Re: 2016 Ontario Municipal Board Review, EBR file 012-7196