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HomeMy WebLinkAboutPSD-106-04 ,. Cl~hJgron REPORT PLANNING SERVICES L-ol Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Tuesday, September 7,2004 Report #: PSD-106-04 File #: PLN 1.1.11 f(e~~G.Pf1-3:53-6<f By-law #: Subject: PLANNING REFORM INITIATIVES: DISCUSSION PAPER ON OMB REFORM RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-106-04 be received and endorsed as the Municipality's comments on the Consultation Discussion Paper #3 on Ontario Municipal Board Reform. 2. THAT Report PSD-106-04 be forwarded to the Ministry of Municipal Affairs and Housing and the Region of Durham Planning Department. Reviewed b~. . -1:.- {(('/~ ~~Pianklin Wu, -i l' Chief Administrative Officer , I i l DJC/df 27 August 2004 6 9 90 0 9 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 c' REPORT NO.: PSD-10a-Q4 PAGE 2 1.0 BACKGROUND 1.1 In June, 2004 the province released 3 consultation discussion papers dealing with planning reform. They include Planning Act Reform and Implementation Tools; Provincial Policy Statement; and Ontario Municipal Board (OMB) Reform. This report deals with the third discussion paper on OMB Reform. 1.2 The release of the three Planning Reform Consultation Discussion Papers on the land use planning system is supported by other initiatives announced as part of the Province's strong communities agenda. This includes the Strong Communities Act (Bill 26) and the Greenbelt Protection Act (Bill 27). In addition, the Ministry of Public Infrastructure Renewal issued Places to Grow: A Growth Plan for the Greater Golden Horseshoe in the Summer of 2004 that provides a long-term vision for growth. Staff will be reporting on the Places to Grow discussion paper in the near future. 1.3 The major issues that the three Planning Reform discussion papers attempt to address are growth and growth management, especially in the GTAlGolden Horseshoe Area, and what the roles of local and provincial decision-makers should be. The three discussion papers bring together all the reforms proposed by the government for land- use planning; as such, they cannot be read in isolation from the other discussion papers and proposed legislation. 1.4 The Province has noted that it has heard a variety of concerns with respect to the OMB. The main concems are that the OMB substitutes its opinions for those of elected municipal councils, is inaccessible to the public and requires municipalities to devote scarce resources to defending decisions that have already been dealt with through the planning process. There is the perception that ordinary citizens are not dealt with fairly or given the same attention as the interests of developers. Reforms to the OMB cannot be made without considering their impact on the land-use planning system. 1.5 In preparing our comments, staff has attended the stakeholder sessions hosted by the Ministry of Municipal Affairs and Housing and other information meetings. Staff has provided comments to the Region for their report (attached to PSD-1 05-04). 1.6 Comments were to be submitted by August 31, 2004. A copy of this report was submitted to the Province indicating that Council would be considering the report on September 13, 2004. 2.0 COMMENTS 2.1 Support for the Reaion of Durham's Recommendations on the OMB The Municipality of Clarington supports the Region of Durham's recommendations respecting Ontario Municipal Board ("OMB") reform. This section of the report will not repeat what has been stated either by the Region in its report to the Province or by the GTA Task Force on OMB Reform to which the Region has referred. The comments and 699010 L REPORT NO.: PSD-10a-Q4 PAGE 3 recommendations of the Municipality of Clarington set out below are intended to reinforce the Region's recommendations and not to detract from them. 2.2 Appeals to OMB should not be heard de novo except where it finds an unreasonable decision has been made by applying a specific test through the y!! of the recommended "leave to appeal" mechanism. Under the current Planning Act, the OMB conducts hearings de novo (literally, to start anew) of matters appealed or referred to it. Very often reports and other evidence will be prepared by an appellant after Council has made a decision and after an appeal to the OMB has been filed by him. The appellant will then present these reports and other evidence to the OMB. In fact, the experts who prepare these reports for presentation to the OMB not infrequently will have been retained by the appellant after the appeal of Council's decision has been filed. They will have had no contact with the Municipality before Council makes it decision. Council will not have had the opportunity of considering such reports and other evidence before it makes a decision on the planning matter in question. The result is that in cases where this has occurred, the OMB will make a decision on local planning policy that reflects the planning values of the panel of the Board conducting the hearing and the evidence presented to the Board without having the benefit of considering a prior decision of Council that is fully informed on all of the issues and experts' evidence. This produces two unfortunate consequences. First, it fuels criticism of OMB decisions that reverse or amend decisions made by an elected and accountable Council respecting local planning issues and values. Such decisions tend to denigrate the importance of Council decisions to the public and to the development industry. Second, it encourages developers with sufficient resources to save their best evidence for presentation in the first instance to the OMB rather than to the elected Council in order to gain an adversarial advantage. In order to address this problem, amending legislation is required along the lines recommended by the Region and the GTA Task Force on OMB Reform. In all cases, appeals to the OMB would require permission or leave of the Board which would apply the following test in deciding whether a leave to appeal should be granted: "That no reasonable Council, applying sound principles and acting in good faith, could have made the same decision or have failed to make a decision." The passing of amending legislation would underline the Province's support of municipal govemment as the crucial decision-maker in identifying and implementing local planning values. 699011 '. REPORT NO.: PSD-10a-Q4 PAGE 4 2.3 Reverse imDact of Clerav Prooerties decision of OMB bv Dassina leaislation. There is a further problem that has arisen as a result of conflicting OMB decisions interpreting a panel of the Board's decision in the case of Clerav Properties Ltd. v. 9!Y of Mississauaa (1996), 34 O.M.B.R. 277 (OMB); appeal dismissed in Clerav Properties Ltd. v. Mississauaa (City), Court File No. 3/97 released on September 29,1997. In one group of decisions, certain panels of the Board have decided that an appellant has an "inviolable right" in law to have its appeal determined exclusively on the basis of the Official Plan and Zoning in effect at the date of the appellant's application to the Municipality under the Planning Act. Subsequent studies conducted by the Municipality may have identified serious public interest issues. The Municipality may have addressed these issues through Official Plan and Zoning amendments. Evidence of the studies and the amendments are excluded by these panels of the Board from the evidence that is admitted in the hearing of the appeals. The result is that the public interest issues identified subsequent to the date of the application to the Municipality will be entirely disregarded by the panel of the OMB who decide the appeal. This action is inconsistent with the principles on which the Planning Act is based. It is also inconsistent with the Board's function as a policy maker as well as an adjudicative agency. There is a second group of decisions which conflict with the first. In the second group, other panels of the OMB have decided that evidence of the investigation by the Municipality concerned of a public interest issue and the subsequent approval by Council of Official Plan and Zoning amendments to address the issue, if relevant, will be admitted in evidence in the hearing of the appeal, unless evidence directly conflicts with the appellant's development proposal expressed in his application to the Municipality. This qualification may preclude the admission of the public interest evidence in question. Under the current legislation, there appears to be no available means by which the OMB itself can reconcile these two groups of conflicting decisions. This is an important matter that should be resolved by legislation in the public interest. The Municipality of Clarington recommends that the Planning Act should be amended to make it clear that in hearing an appeal the OMB must admit all relevant evidence that is available at the date of the hearing whether or not it is inconsistent with the Official Plan and Zoning in force at the date on which the appellant filed a "complete application" with the Municipality under the Planning Act. This amendment should make it impossible for a panel of the Board in a future case to disregard the first group of decisions and the so- called "inviolable right" of the appellant referred to above and the qualification imposed by the second group of decisions discussed above. It would also enable the OMB in appropriate cases to admit and to rely on evidence respecting the public interest developed after the appellant's application was made to the Municipality whether or not such public interest evidence conflicts with the appellant's development proposal set out in his application to the Municipality. This is a necessary amendment to ensure that relevant evidence of the public interest is not excluded from the hearing of an appeal by the Board. 699012 " REPORT NO.: PSD-106-04 PAGE 5 2.4 Public confidence in the OMB as appellate tribunal must be ensured. The Municipality of Clarington supports the recommendation that the OMB should be an appellate tribunal that is independent of the parties to the appeal and reviews prior decisions of Council, provided that Council has the opportunity to consider all of the issues and reports presented as evidence in the OMB hearing whenever they were prepared. The Municipality agrees that it is of critical importance that the general public, municipal representatives, the development industry and interested professionals perceive the Board to be an independent and fair expert tribunal. This consideration raises the following issues. (a) Appointment and reappointment procedures for members should be improved. In order to attract and to retain members of the Board of relevant experience and high ability, the Municipality recommends that the Province make the changes set out below to present practices and policies. Currently, OMB members are appointed by the Lieutenant Governor in Council by Order in Council for terms of 3 years. The short term of appointments is counter-productive to the promotion of independent decision making. Essentially, the appointments are in the discretion of the Provincial cabinet which does not publish its selection criteria. Similarly, the criteria employed by the Provincial Cabinet in determining whether a person should be reappointed for a further term of 3 years on the expiry of his or her current term are not published. Reappointments are in the discretion of the Cabinet. The OMB is a Provincial agency mandated to elaborate and implement Provincial policy after conducting a judicial style of hearing under Provincial legislation including the Planning Act. It is appropriate that the Government of Ontario which is accountable to the public continue to retain discretionary authority to appoint OMB members. An advisory committee as recommended by the GTA Task Force on OMB Reform to screen the qualifications of candidates and to make appropriate, confidential recommendations to the provincial Cabinet could be useful to review and comment to Cabinet on initial appointments to the OMB. However, since the recommended advisory committee would comprise "stakeholders", the committee should not be involved in performance reviews of members of the board or in making recommendations as to whether particular members should or should not be reappointed, To do otherwise, would carry the serious risk of public perception developing that the independence of Board members in performing their responsibilities could be undermined by stakeholders. This should be avoided. The Municipality of Clarington believes that OMB members should be appointed for six year terms after the completion of the probationary period. To ensure that the independence of Board members nearing the end of their term is not perceived by the public to be undermined in any way, the Province should adopt the policy of automatic reappointment unless the member's performance 699013 '-- ,-- '. REPORT NO.: PSD-106-Q4 PAGE 6 evaluation falls substantially below what is required by the performance criteria. A suitable performance evaluation system is discussed below. (b) Reasonable comcensation must be paid to members. The compensation paid to Board members is far below the compensation paid to senior Provincial officials and to Provincial Court judges. It has not been adjusted for some considerable time. An upward adjustment in compensation is urgently required to attract and retain fully qualified members on the Board. The Municipality of Clarington recommends that the Province review and increase the present levels of compensation of members of the Board using as benchmarks the compensation paid to senior Provincial officials and Provincial Court judges. (c) All initial appointments to OMB should be probationary for 6 months. As in any modern organization, individuals may be appointed members of the Board who may prove to be unable or unwilling to perform their duties in a competent and independent manner. It is important that they are not given 3 year terms initially. The Municipality of Clarington recommends that all appointments to the Board should be on a probationary basis for 6 months with the appointments to be confirmed by Cabinet passing an Order-in-Council on the recommendation of the Chair of the Board if the performance of the members is considered to be satisfactory by the Chair. (d) Discipline procedure of members not oerformina satisfactorilv should be established. Until relatively recently, OMB members were appointed for an indefinite term of office during the Pleasure of Her Majesty rather than for a fixed term of 3 years. In practice, this type of appointment was generally until the member reached superannuation age. The advantage of this type of appointment is that individuals could accept appointments without the constraint of concern as to whether their business or professional practice would be available at the end of a short term of appointment. The disadvantage was that it was difficult for the government of the day to remove members whose performance did not satisfy the government's expectations. The Municipality of Clarington believes that a better way to address the latter problem would be for the Province to establish appropriate performance evaluation criteria and system which is communicated to the members. The performance evaluation of members should be conducted by the Chair or a Vice Chair appointed to do so by the Chair. Also, a formal process for removing from office members whose performance falls substantially short of what is required under performance evaluation criteria should be established. 699014 ~ , REPORT NO.: PSD-106-Q4 PAGE 7 The public expects members of the Board to be civil to and respectful of all persons who appear at a hearing of the Board. Conduct by Board members that is patronizing or even in rare cases abusive, is not acceptable. The performance evaluation criteria should include civility and respectfulness as a requirement of continued membership on the Board. Repeated breaches of this requirement should result in the termination of the appointment of the member in question, if confirmed through the inquiry process noted below.. In order to ensure that the performance evaluation criteria do not undermine the independence of Board members, a right of appeal by a member who is aggrieved by his or her performance evaluation to an arbitrator appointed by the Province should be provided. The Chair of the Board should have authority to initiate on complaint being determined to have likely merit or on his or her own motion, an inquiry by a committee comprises chairs of other agencies or other qualified persons who are not members of the Board. The committee should be appointed by the Attorney General and have the mandate to determine whether the particular member should be disciplined for his or her conduct and whether disciplinary action including termination of the member's appointment to the Board should be recommended. The recommendation should be to the Chair of the Board, the Attorney General or the Provincial Cabinet, as appropriate. The Municipality of Clarington believes that if there is to be public confidence in the Board an effective mechanism must be available to ensure that members of the Board satisfy the relevant performance criteria and conducts himself or herself in a manner that is expected by the public of judges and members of quasi judicial tribunals. 2.5 Case Manaaement should be improved bv amendment to OMB Rules. The Municipality of Clarington believes that the OMB's case management procedures work well where appeals to the Board are ripe for hearing. In those situations it is possible for the Board to settle a Procedural Order which identifies the issues that will be addressed at the hearing, set dates for the exchange of witness statements and prepare lists of witnesses who will testify at the hearing of the merits of the appeal. This type of order is issued in order to minimize surprise and the opportunity for trial by ambush to occur with resulting unfairness and delay as well as to promote efficiency and economy of time in the conduct of the hearing itself. The procedures, however, break-down in cases in which a pre-hearing conference is scheduled before an appeal is ripe for hearing. For example, an appeal will not be ripe for a hearing until the Municipality is given a reasonable opportunity to have any necessary further studies undertaken, completed and considered by Council after an application to it is completed under the Planning Act. In these cases the scheduling of a pre-hearing conference may be requested by an appellant in order to establish those who are likely to object to its proposal well before a hearing on the merits of the appeal is scheduled by the Board. Usually, the Board will direct that only those persons who appear at a pre-hearing conference and are given the status of parties will receive notice of subsequent pre- 699015 - .. REPORT NO.: PSD-106-Q4 PAGE 8 hearing conference to settle the issues, the exchange of witness statements and other matters. This is practice is unfair to the Municipality and to the general public. It also is a waste of the Board's scarce hearing resources and member's time. It should not be permitted. The Municipality of Clarington recommends that the OMB's Rules of Practice and Procedure be amended to require that the solicitor for the appellant file his or her affidavit certifying that the appeal is ripe for hearing before the Board schedules a pre- hearing conference or schedules a hearing on the merits of the appeal in question. 2.6 Compulsory Mediation should be authorized on experimental basis. The Municipality of Clarington believes that the OMB should have authority on an experimental basis to require parties to participate in mediation of appropriate disputes by members of the Board before a hearing is held, provided that workable criteria are developed. If mandatory mediation is authorized, it should be tested in a specific area of the Province before it is put in place throughout the Province. The mandatory mediation process and results should be monitored and evaluated by the Board to determine its success and effectiveness in settling disputes without a formal arbitration by the Board being held. If it is determined to be successful and effective, mandatory mediation then could be extended. The result could be a significant saving of the Board's hearing resources by reducing the number of hearings on the merits of appeals that need to be held. 3.0 CONCLUSION The Province should be commended for its recent initiatives to improve the Ontario planning system. The reform of the OMB is a critical component of the planning system and is essential to support the Province's strong communities agenda. We trust that our comments in combination with those from the Region will be helpful to the Province. 699J16