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REPORT
PLANNING SERVICES
LOI.OM
Date:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Monday, September 8, 2003 GPA - 335-63
Meeting:
Report #: PSD-098 -03
File #: PLN 1.6.8
By-law #:
Subject:
GTA TASK FORCE ON OMB REFORM
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council that the following resolution be adopted:
WHEREAS the Ontario Municipal Board was created to resolve municipal land use
issues at a time when municipal govemments were small and had limited planning
expertise;
AND WHEREAS the role and mandate of the Ontario Municipal Board have not been
significantly altered in response to increased municipal planning skills or expanding
municipal responsibilities for land use planning under the Planning Act;
AND WHEREAS the Ontario Municipal Board has broad planning powers and can make
decision in the absence of a full municipal review of a planning application and can
overturn local planning decisions;
AND WHEREAS Ontario Municipalities invest significant resources in staff time, legal
and other associated costs in establishing and implementing local planning policy;
AND WHEREAS there is growing concern from municipalities and citizens that the
decisions of the Ontario Municipal Board are eroding local planning authority;
AND WHEREAS there have been numerous Council Resolutions, municipal reports and
reports from planning professionals and academics advocating reform to the Ontario
Municipal Board;
AND WHEREAS the GTA Task Force on OMB Reform, an informed group of municipal
elected representatives and staff, after study and consultation, has made practical
recommendations for improvements to the planning appeal process;
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NOW THEREFORE BE IT RESOLVED THAT the Council of the Municipality of
Clarington generally endorses the Report of the GTA Task Force on OMB Reform dated
March 7, 2003 with the modifications with respect to Improvement Area 4 identified in
Report PSD-098-03;
AND FURTHER BE IT RESOLVED THAT this resolution and a copy of this Report be
circulated to the Chair of the GTA Task Force on OMB Reform, the Attorney General,
the Minister of Municipal Affairs and Housing, and the provincial party leaders.
Submitted by:
Submitted by:
vi . Crome, MCIP, RP.P.
Director of Planning Services
Dennis Hefferon
Solicitor
Reviewed by:
Franklin Wu,
Chief Administrative Officer
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August 5, 2003
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830
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REPORT NO.: PSD-098.o3
PAGE 3
1.0 BACKGROUND
1.1 On March 10, 2003, the Clerk of the Municipality of Clarington received the Report of
the GTA Task Force on OMB Reform. The GTA Task Force requested that the
recommendations included in the Report be endorsed by Council (Attachment 1).
Council received the request on March 17th and forwarded it on to Planning Services for
review and comment. The Task Force has forwarded the same request to all of the
municipalities within the Greater Toronto Area, Municipal endorsed recommendations
will be submitted to the Minister of Municipal Affairs and Housing and the Attorney
General with the request that they be implemented by the Government of Ontario.
The Task Force Report Contains a background history on the formation and function of
the OMB. It indicates the reasoning behind the establishment of the Task Force and
explains the consultation process and the research that was conducted in order to make
the conclusions and recommendations contained in the Report. Several key issues
were identified during the review. These are as follows:
. The role and jurisdiction of the OMB
. Procedural complaints
. Barriers to public participation
. Cost of municipal/agency participation
. Credibility/impartiality of the OMB
. Strength of the planning framework
. Value added by the OMB process
Two principles form the basis for the recommendations made by the Task Force. These
are that:
. planning decisions of democratically elected Municipal Councils should not be
replaced by the decisions of a Provincially appointed body unless there is
demonstrable evidence of error or impropriety on the part of Council; and
. property rights are important and aggrieved parties should be entitled to some
relief and remedy when a Municipal Council acts improperly, arbitrarily or
outside of its jurisdiction,
2,0 TASK FORCE RECOMMENDATIONS
2.1 The Task Force rejected the option of advocating the abolition of the OMB since it was
of the opinion that if the OMB was abolished, there would not be adequate provision for
protecting the rights and providing remedies for aggrieved parties. However, the Task
Force recommended four specific areas for improvement:
. update the role of the Ontario Municipal Board;
.
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REPORT NO.: PSD.o98.o3
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. enable timely municipal decisions based on complete information;
. support citizen participation through intervenor funding; and
. promote an independent and fair tribunal.
2,1,1 Improvement Area 1:
Update the Role of the OMS
Since the OMB was established, municipal responsibilities have grown and
expanded. Provincial planning legislation and policy have also matured.
However, the role and mandate of the OMB has not adapted to these changes.
Currently the OMB acts as a planning decision maker in substitution for planning
decisions of municipal councils. The OMB does not provide a true appeal or
review mechanism as a last resort for dealing with fairly local decisions. It
conducts de novo hearings allowing "a new presentation of the issues" which the
Council mayor may not have had the opportunity to consider when Council
made its decision on the matter, Since the OMB has the power to make any
decision the Council could have made, and the OMB's decision may be quite
different from the decision of Council reflecting either or both of different
information presented to the OMB and different planning values being adopted
by the Board, it does not function as a review or true appeal agency,
In this regard, the Task Force recommended that the OMB process should be a
review or true appeal of municipal planning decisions and not an automatic
hearing de novo, The Task Force recommend that a two stage process be
adopted. Stage one would be to determine if a leave to appeal should be
granted, The OMB would review the planning process and the complaint and
determine whether council has acted unreasonably. If the OMB determines that
Council has acted unreasonably, leave to appeal would be granted and the
appeal would proceed to stage two, which would be a de novo hearing before the
Board.
In determining whether leave to appeal should be granted, very importantly the
Task Force suggested that the OMB apply a test such as the following:
"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."
If applied by the OMB, this test would go a long way to remedy the present
situation in which the OMB can substitute its decision for that of Council reflecting
the OMB member's planning values on matters that essentially are of local
policy. In a democratic society these decisions should be made by elected and
not by appointed bodies.
Staff concur with this recommendation. Staff note that when the OMB
automatically conducts a de novo hearing the significant amount of time,
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expertise, and expense that has been invested in the municipal decision making
process may be wasted. However, should the OMB determine on application of
the above suggested test that a Council has acted unreasonably, then the entire
application should be reviewed by the Board from the beginning in order that the
correct decision can be made. Only in this situation is a hearing de novo by the
OMB justified.
2.1.2 Improvement Area 2:
Enable Timely Municipal Decisions Based on
Complete Information
Currently, an applicant for a planning decision can appeal an application to the
OMB if Council has not made a decision within 90 days of the complete
application being filed, The Planning Act requires that an application must be
"complete" so that Council can have the opportunity to make an informed
decision. However, under the present Planning Act, an application may be
judged to be "complete" whether or not all information and studies that have been
required by a municipality have been submitted by the applicant. Whether or not
the supporting documentation that Council considers necessary to make an
informed planning decision has been provided, when the 90 day period expires,
the applicant has the right to appeal to the OMB. Both the shortness of the 90
day appeal period and the lack of definition of a "complete application" have
serious consequences to municipalities and are inconsistent with responsible,
informed decision-making by Councils on planning applications.
The Task Force recommended the following changes to the Planning Act:
. a definition of a "complete application" be provided which will include
information and documentation required by a municipality to properly
process the application and make an informed decision
. municipalities be given the right to reject an incomplete application
. preconsultation be mandated between municipalities and an applicant on
all applications for Official Plan amendment and municipalities be required
to confirm requirements in writing within a specific timeframe after the
preconsultation
. any dispute in regards to the information required could be brought to the
Board or arbitrated at any time
. allow 150 days from receipt of a "complete application" for Council's
decision before an applicant can request the OMB to grant leave to appeal
The Task Force also recommended that the OMB be given the jurisdiction to stay
any appeal process including a request for leave to appeal if it determines that
the municipality has not been provided information required to make a decision
or has not had sufficient time to review all submissions related to an application,
Staff would concurwith these recommendations,
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Defining what constitutes a "complete application" and giving municipalities the
right of rejection of incomplete applications is necessary to ensure that the
municipalities have the opportunity to make informed decisions on the merits of
an application before the matter is taken out of their hands by an appeal to the
OMB, Preconsultation on Official Plan amendments would give applicants clear
direction on what documentation is required in order for the application to be
properly reviewed.
Allowing 150 days for the decision making process to occur will provide Council
with a more reasonable timeframe to consider an application. Ninety days is
often inadequate for a municipality to give proper consideration to complex
planning issues while respecting both the rights of applicants and of residents
who may be impacted by the proposal. Also, presently the 90 day appeal period
allows applicants who choose to do so to coerce favourable decisions from
municipalities by appealing to the OMB during negotiations and thus threaten the
municipalities with the costs of an OMB hearing if the appeal is pursued. This is
simply not fair to the municipalities or the public they represent.
2,1,3 Improvement Area 3:
Support Citizen Participation Through Intervenor
Funding
This section of the Report deals with the difficulties faced by citizens or citizen
groups in participating in an OMB hearing. Participation is noted as expensive,
time consuming and legally complex. These considerations act as barriers to
citizen participation in the OMB process. Also, the effective presentation and
defence of a public interest requires legal representation and expert evidence,
The Task Force recommended that a program be established to fund citizen
group participation in de novo hearings provided that the group:
. is incorporated or appropriately organized to participate in a hearing
. has participated in the local planning process
. is able to raise funds to contribute to the appeal process
. is appealing a matter of broad public or provincial interest
The Task Force suggested that the province allocate an annual amount of
funding to assist citizen groups, that a cap be set on the amount available to a
single group, and that there be specifications on how the money is to be used. It
also suggested that the funding be "possibly supplemented with a small
surcharge on development applications".
The recommendation for intervenor funding in very limited circumstances is
premised on the Task Force's recommendations to strengthen the municipalities'
role in the planning process being adopted by the Government. If this is
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assumed, the Task Force believed that the best way to support public
participation in planning matters is to make full use of the municipal planning
process.
Staff would concur with these recommendations on the assumption that the
recommendations of the Task Force to strengthen the role of municipalities in the
planning process are adopted by the Government.
2.1.4 Improvement Area 4:
Promote an Independent and Fair Tribunal
In its review of the OMB, the Task Force stated that "there is definitely a public
perception the Board and the appeal process, as currently structured, favour
developers". Citing that there is no statistical support for this perception, the
Task Force made the following recommendations to reinforce the impartiality and
fairness of the OMB:
. the term of appointment for members be increased from 3 years to 6
years;
. a job description which outlines the specific qualification and expertise of
OMB members be developed and used in the selection process;
. an open process be adopted for soliciting qualified applicants;
. a non-partisan multi-stakeholder screening committee be established to
interview and recommend to Cabinet candidates for appointment or
reappointment; and
. a more open performance evaluation process for board members be
implemented.
Staff would concur with these recommendations with the following modifications:
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 Task Force to
screen the qualifications of candidates and to make appropriate, confidential
recommendations to the provincial Cabinet could be useful in respect of initial
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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 that the
independence of Board members in performing their responsibilities could be
undermined by stakeholders.
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 Government
should adopt the policy of automatic reappointment unless the member's
performance evaluation falls substantially below what is required by the
performance criteria. A performance evaluation system is discussed below.
It is difficult to know what the Task Force had in mind in recommending that an
"open process" be adopted for soliciting qualified applicants. General newspaper
advertisements could be useful in attracting applications from some potential
candidates who might not otherwise apply. However, if the Task Force had in
mind a process through which there would be an open, public review of the
candidacy of individuals, that would potentially dissuade many otherwise suitable
persons from applying for appointment. This would be counterproductive. Staff
do not support an open, public review of candidates.
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 better way to address the latter problem would be for the government to
establish a thorough performance evaluation system which is communicated to
the members, and a formal process for removing from office members whose
performance falls substantially short of what is required under the system. In
order to ensure that the performance evaluation system does not undermine the
independence of Board members' right of appeal by a member who is aggrieved
by his or her performance evaluation to an arbitrator appointed by the
government should be provided.
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3.0 CONCLUSION
3,1 The Task Force will be presenting their report and the supporting endorsements from
municipal councils to the Ministry of Municipal Affairs and Housing and the Attorney
General for consideration and implementation. Staff generally support the
recommendations of the GTA Task Force Report on OMB Reform with the modifications
identified in this Report.
Attachment 1 - Report of the GTA Task Force on OMB Reform
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ATTACHMENT 1
Report of the
GTA TASK FORCE ON OM B REFORM
Recommendations for
Reforming the Ontario Municipal Board and
Ontario's Planning Appeal Process
March 7, 2003
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699016
GTA TASK FORCE ON OMB REFORM
SUBJECT:
Recommendations for Reforming the Ontario Municipal Board and
Ontario's Planning Appeal Process
REPORT:
PURPOSE
The purpose of this report is to recommend reforms to the Ontario Municipal Board
(OMB) and the related land use planning appeal process, and to seek endDrsement of
these recommer.dations by the local and regional governments within the Greater
Toronto Area, The Task Force will then forward the endorsed recommendations to the
Minister of Municipal Affairs and Housing and the Attorney General and others who may
be in a position to implement or influence those reforms,
BACKGROUND
Originally created as the Office of the Provincial Municipal Auditor in 1897 to supervise
account keeping by municipalities, the Ontario Railway and Municipal Board was fDrmed
in 1906 with an added responsibility for railways, Renamed the Ontario Municipai
Board in 1932, its powers have expanded greatly over time and the Board now obtains
its jurisdiction from more than 100 statutes. This report is concerned with its
jurisdiction under the Planning Act.
The Board was created to arbitrate municipal issues in a predominantly rural society
where municipal government was small and unsophisticated. After World War II,
Ontario's population became increasingly urban, planning departments began to
emerge in Ontario cities and towns, and land use planning legislation began to be
enacted provincially, At the dawn of the 21st century, Southern Ontario, in particular,
is primarily an urban culture with rapid development in and around its major cities.
Municipalities now possess considerable planning expertise, Since 1995, the Province
has downloaded most land use planning responsibilities to the municipal level of
government. The new Municipai Act, 2001 recognizes municipalities as an order of
government.
While the OMB has undergone some administrative changes over the years and recent
procedural improvements, its role and mandate have not been significantly altered in
response to the increasing maturity of the municipal planning role and process.
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GTA TASK FORCE ON OMB REFORM
FORMATION OF TASK FORCE
Many Ontario municipalities have expressed growing frustration with the planning
appeal process administered by the Ontario Municipal Board (OMB), They feel it
undermines their planning authority and is a drain on their financial and staff resources,
In June 2002, Durham Regional Council discussed and endorsed a City of Mississauga
resolution citing difficulties experienced by municipalities in relation to the OMB,
Durham Council further directed the Regional Chair, Roger Anderson, to convene a
meeting of Greater Toronto area (GTA) officials to see if, jointly, such a group could
formulate and agree upon recommendations for reform of the OMB appeal process,
On September 16, 2002, a group comprising GTA and Hamilton elected officials and
municipal staff met at the Region of Durham Council Chamber, A possible course of
action to stimulate meaningful reform of the OMB appeal process was discussed and
the group agreed to work as a Task Force to pursue this objective, Attachment 1 lists
the Task Force Members. The Terms of Reference adopted by the Task Force are
provided as Attachment 2, The objective was to prepare a report to the Attorney
General and the Minister of Municipal Affairs and Housing recommending reforms that
would address the key issues that municipalities face in the planning appeal process,
Task Force members saw it as essential to engage stakeholders in their review process,
to look at the appeal mechanisms used in other jurisdictions and, with a Provincial
election approaching, to hear the position of each provincial party with respect to the
OMB mandate and function. The Task Force invited a variety of stakeholders in the
planning process to present their views. Representatives of each of the three provincial
political parties were invited to present their party's perspective, The Ontario Municipal
Board was also invited to provide information about the appeal process and any
planned changes, The Task Force also hoped to generate some media interest in the
process so that the broader community would become aware of the issues and the
work underway,
CONSULTATION PROCESS
Based on suggestions from members of the Task Force, sixteen stakeholder groups and
knowledgeable individuals including academics, ratepayer groups, government agencies
and the development industry were invited to appear before the Task Force to present
their recommendations for changes to the OMB appeal process, Three consultation
dates were offered during December 2002 and January 2003, Nine representatives
appeared before the Task Force (see Attachment 3), Of the groups invited, only 2 did
not respond, Some stakeholders were unable to attend as they were involved with
cases before the Board or because their schedule did not allow it, The Ontario
Professional Planners Institute (OPPI) felt that their February 2002 paper fully explained
their position.
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GTA TASK FORCE ON OMB REFORM
In addition to the stakeholder groups, representatives of the Liberal Party and the New
Democratic Party spoke to the Task Force on Feb, 3, 2003, to explain the kinds of
changes they envisioned making to the OMB or the planning process, if elected,
The Chair of the OMB made a presentation on changes and improvements to the appeal
process that had been made, were underway or were being considered by the OMB
itself. He provided copies of their Code of Conduct, recently revised forms and some
case load statistics,
Each group or individual that appeared before the Task Force was asked to make a
short presentation and then respond to questions from Task Force Members, This was
an extremely informative process and covered a full spectrum of views on the OMB,
from those who felt that very little or no change to the appeal process was needed, to
those who felt it was beyond fixing and should be abolished,
Various municipal resolutions calling for reform of the OMB had been passed on to the
Task Force by its members and by the Durham Regional Clerk's Office, Several reports
on the OMB from municipalities, planning professional groups and academics were also
brought to the attention of the Task Force. These also represented quite a broad range
of perspectives, Some focussed on procedural adjustments while others advocated
radical reforms.
The Task Force reviewed the notes and materials from all the presentations, the
municipal motions and the various reports and extracted, grouped and summarized the
recommendations contained in them. See Attachment 4, Summary of Consultation and
Submission Recommendations.
PLANNING APPEAL PRACTICES IN OTHER JURISDICTIONS
Task Force research showed that the nature of appeal boards, both provincial and locai,
and the extent of their authority on land use planning appeals vary significantly from
province to province. Each province has taken a different approach to planning appeals
based upon what was decided, who made the decision, and how the decision was
made,
All provinces, with the exception of British Columbia and Quebec, have provincial
boards that have jurisdiction to hear appeals of land use planning decisions made (or
not made) by municipal councils, local or regional planning authorities, committees or
boards, Generally, the range of planning instruments over which provincial boards have
jurisdiction is limited, No provincial board in Canada has jurisdiction over planning-
related matters as extensive as that of the Ontario Municipal Board.
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GTA TASK FORCE ON OMB REFORM
In most provinces, provincial boards do not have appellate jurisdiction over official
plans, The appellate jurisdiction of provincial boards with respect to other planning
approvals varies from province to province, Generally, zoning by-laws cannot be
appealed to provincial boards, but planning controls that affect the details of
development proposals (for example, development permits and minor variances) can be
appealed,
Some provinces have local boards that hear appeals, However, to the extent that they
have appellate jurisdiction, these local boards typically only review decisions of
administrative officials.
Every province has statutorily codified processes that provide for property owners and
other interested parties to have a full and fair opportunity to present their views to the
original decision-maker and/or an appeal board on planning-related matters, Where
the provinces differ is in their views as to whether appeals to a provincial board and/or
a local board are necessary to ensure that the rules of natural justice or procedural
fairness are respected in the decision-making process. In provinces where appeals of
certain municipal decisions are not allowed (for example, official plans and zoning
bylaws in British Columbia and Alberta), the legislation sets out stringent procedural
requirements, In these situations, a hearing before an appeal board is not seen as
required to ensure that the process is fair,
For those limited matters in respect Df which provincial boards have appellate
jurisdiction, the legislation typically provides for de novo hearingsl,
ISSUES IDENTIFICATION
The following key issues were identified as a result of the consultation and research:
Role and Jurisdiction of the Board
. The OMB :
. can overrule or support decisions of elected councils
. is not accountable to the electorate
. often makes decisions that undermine local Official Plans created through
considerable public consultation
. deals with much more than Provincial Policy Statement (PPS) issues and
approval of Official Plans
1 "de novo" hearing: Acco,ding to the Guide to the Ontario Municipal Board, p.g, a hearing before the
OMS is "usually a new presentation of the issues. This means that the Member(s) look at each
application or appeal from the beginning as if no decision had ever been made by a previous tribunal
such as a municipal council, a committee of adjustment, land division committee or the Assessment
Review Boa,d (therefore you must prove your case again). The Boa,d can make any decisions that the
earlier tribunal could have made and the decision may be different".
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GTA TASK FORCE ON OMB REFORM
. No other Canadian jurisdiction has an appeal body with a similar scope of
planning appeal powers
. Guidelines & limits on the OMB mandate are unclear.
Procedural Complaints
. 90 day appeal period is perceived as an unrealistic processing timeframe for
municipalities
. Hearing is not a true appeal or review, but a de novo hearing
. Pre-hearing process and mediation often are not used,
Barriers to Public Participation
. OMB procedures are complex, legalistic and are perceived as a barrier to public
participation
. 90 day appeal provision can circumvent local planning process and may limit
opportunity for public input
. Citizen input is given less weight as evidence than professional opinion
. Cost, time requirements are a barrier to public participation
Cost of Municipall Agency Participation
. Deters municipal participation
. Potential of costly OMB hearing affects local planning decisions
. Diverts scarce municipal/agency resources from other planning needs and locai
expenditure priorities
. Municipalities are forced to spend large sums if they are to defend local planning
decisions
Credibility IImpartiality of OMB
. Appointment process, length of tenure could be revised to enhance the Board's
independence
. There is no transparent process for evaluating the performance of the OMB or its
members
Strength of the Planning Policy Framework
. Planning Act could give the Provincial Policy Statement epPS) more weight
. Provincial Policy Statements are vague in some respects
. Local planning process/ Official Plans could be given more weight
Value Added by the OMB Process
. No evidence to demonstrate that decisions of the Board are better planning
decisions than those made at the municipal ievel
. OMB perceived as being less open tD innovative planning than it is to more
traditional planning
. Little evidence to show that the OMB is successful in taking into account
cumulative impacts of discrete planning decisions,
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GTA TASK FORCE ON OMB REFORM
ANALYSIS
Two basic principles seemed to be at the heart of the issues discussed by stakeholders
and form the basis for the Task Force's recommendations:
. Planning decisions of democratically elected Municipal Councils should not be
replaced by the decision of a Provincially appointed body unless there is
demonstrable evidence of error or impropriety on the part of the Council.
. Property rights are important and aggrieved parties should be entitled to some
relief and remedy when a Municipal Council acts improperly, arbitrarily or outside
of its jurisdiction,
In balancing these two guiding principles, the Task Force rejected the option of
advocating the abolition of the Ontario Municipal Board. While abolition would clearly
recognize the authority of elected Municipal Councils, it may not adequately provide for
the rights and remedies of aggrieved parties. While the courts could play this role, the
Task Force felt that the Ontario Municipal Board does possess helpful qualifications and
experience with respect to municipal planning matters, These could not be easily
duplicated and repiaced by the Courts, Some stakeholders viewed the courts as a
potentially more expensive and less inclusive mechanism for appeal.
The Task Force believes that the current system of OMB planning appeals does not give
adequate deference to the process that municipalities go through in developing their
Official Plans. Changes should be made to the planning system that support and
validate the plans and decisions generated through the municipal planning process,
Therefore, in formulating its recommendations, the Task Force focused on what they
felt were the primary flaws of the present system and the reforms that would most
effectively address the issues identified in the research and consultation process, The
Task Force anticipates that its recommendations would work best in conjunction with a
stronger, clearer Provincial Policy Statement that should result from the PPS review
currently underway,
RECOMMENDATIONS
The Task Force recommendations focus on four key areas of improvement:
1. Update the role of the Ontario Municipal Board
2. Enable timely municipal decisions based on complete information
3, Support citizen participation through intervenor funding
4, Promote an independent and fair tribunal.
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GTA TASK FORCE ON OMB REFORM
The Task Force believes that these improvements are achievable with the changes
proposed.
1. Uodate the Role of the OMB
Municipalities have grown and matured since the OMB was created. Provincial planning
legislation and policy have also matured and support a rigorous public process for the
development of municipal planning instruments such as Official Plans. The new
Municipal Act recognizes municipalities as an order of government. The Province has
delegated approvals of local Official Plans to single and upper tier municipalities. The
role and mandate of the OMB should be updated to recognize and respond to these
changes. The Board should provide a tnJe appeal or review mechanism as a last
resort for dealing with faulty decisions, rather than substituting themselves as the
planning decision-maker.
Provincial legislation gives the primary responsibility for land use planning within a
community to the municipal government. The Planning Act sets out a detailed
procedure that municipalities are expected to follow in discharging that responsibility. A
municipality is, and should be, required to go through a full, complete and open public
process to establish or amend its Official Plan, zoning regulations and other planning
instruments. Having gone through that mandated process, the municipality's
decisions should be final and binding unless it can be demonstrated that a
significant error or impropriety has taken place. The onus of demonstrating
the error or impropriety should be placed on the complaining party.
However, under the present system, appeals result in hearings de novo that effectively
void the municipal planning process and decision, and allow the Board to substitute its
own process and decision. The Task Force believes that an applicant's rights of appeal
should arise only where a Municipal Council makes a clearly improper or unreasonable
decision or deprives the parties of their rights to natural justice.
Recommendation:
The Task Force strongly recommends that the OMB process should be a review or true
appeal of the municipal planning decision and not an automatic hearing de novo. To
achieve this, the Task Force recommends that a two stage process be adopted.
At the first stage, the Board would review the planning process and the
complaint and determine whether leave to appeal should be granted. Leave
to appeal would be granted only if the objecting party establishes to the
Board's satisfaction that the Council has acted unreasonably. To make this
determination, the Task Force suggests that Board could apply a test such as
the following:
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GTA TASK FORCE ON OMB REFORM
That no reasonable Council, applying sound planning principles and
acting in good faith, could have made the same decision or have failed
to make a decision.
Only if the Board finds that the Municipal Council demonstrably failed to act
reasonably could an appeal proceed to the second stage, a hearing de novo.
This screening process should greatly reduce the number of appeals by granting proper
deference to the municipal planning process and requiring an appellant to demonstrate
a substantial error as the basis for appeal. A de novo hearing should become an
exception, reducing costs to all parties and providing for a more timely resolution of
planning matters.
2. Enable Timelv Municioal Decisions Based on Comolete Information
Most submissions to the Task Force highlighted difficulties related to the 90 day appeal
provision in the Planning Act. This provision allows an applicant to launch an OMB
appeal 90 days after submitting an application, if the municipality has not yet rendered
a decision. Stakeholders cited numerous cases where the studies to support a proper
planning decision could not possibly be completed in 90 days (e.g. a four-season
environmental impact study) or where an applicant provided required studies only a few
days before the 90 day deadline. These situations made it impossible for the
municipalities or other commenting agencies to review the information before the
deadline. Resources have to be diverted from normal business to hastily review last
minute submissions. Only the Urban Development Institute and the Greater Toronto
Homebuilders were satisfied with the present 90 day rule and felt that abuse of the rule
was rare.
If a duly elected Council has the primary responsibility and authority to render well-
considered planning decisions for its community, that Council must have sufficient time
and reliable information to make such decisions. Based on the consultations, the Task
Force believes that the 90 day appeal provision presents a major problem in this regard.
A fundamental problem is the present definition of a "complete" application in the
Planning Act and regulations. Currently, an applicant need only submit a planning
application form and cheque for the application fee to "start the 90 day clock ticking".
This definition of "completeness" fails to recognize that an applicant should provide
necessary studies and information related to their application in a timely way, to permit
municipalities to render an informed planning decision.
Before removing the municipality from the decision-making process and substituting the
Board, the municipality should be given a reasonable opportunity to make an informed
decision. Based on statistics presented by David Johnson, Chair of the OMB, 75% of
appeals are not referred in any case until 150 days after municipal receipt of the
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GTA TASK FORCE ON OMB REFORM
application. The Task Force believes it is sensible that an appeal period should not
commence until a truly complete application is in the hands of the municipality.
Where an application is submitted with all the information needed to make a decision,
municipalities would be able to render a properly considered planning decision within
150 days on most applications. Straight-forward applications may be dealt with more
quickly. There will also be complex applications that require a municipal review period
of more than 150 days due to the need for extensive public consultation, multi-season
studies or peer review of studies.
The Province has seen fit to vest municipalities with land use planning responsibilities.
Thus, the starting assumption for the planning appeal system should be that elected
Municipal Councils can be trusted to properly fulfill legislative requirements, to act in
good faith and to make timely, well-considered planning decisions.
Recommendations:
Therefore the Task Force recommends the following:
. Amend the Planning Act to create a definition of "complete application" that
includes information and documentation required by a municipality to
properly process the application and make an informed decision. The
information required to constitute a compiete application will include
1) any requirements of general application contained in municipal
planning documents (e.g. Official Plan) and
2) any other information reasonably required to make a sound planning
decision on that specific application.
A municipality could reject an incomplete application.
. Amend the Planning Actto mandate pre-consultation between the
municipality and the applicant on all Official Plan amendment applications.
Municipalities should provide written confirmation of the information
requirements to the applicant within a specified time after the pre-
consultation.
. Amend the Planning Act to provide that a dispute, in regard to the
information required in order to constitute a complete application, could be
brought to the Board or arbitrated at any time.
. Give the OMB the jurisdiction and direction to stay any appeal process,
including a request for leave to appeal, if it determines that any information
required to make a decision has not been made available to the
municipality or that the municipality has not had sufficient time to consider
such necessary information.
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GTA TASK FORCE ON OMB REFORM
. Establish a time period of 150 days from receipt of a complete application
for municipal review and processing of an application. Only after 150 days
could leave to appeal a lack of decision be obtained by convincing the
Board that the lack of decision is unreasonable (see the test for
"reasonableness" proposed on page 8).
3. Suooort Citizen Particioation - Intervenor Fundina
All of the stakeholders who presented to the Task Force commented on the obstacles
faced by ordinary citizens in participating in the OMB process. Expense, time
commitment and legal complexity were repeatedly cited as barriers to citizen
participation in the OMB process. Citizen groups often cannot effectively present and
defend a public interest at an OMB hearing without legal representation and expert
evidence.
The 90 day appeal provision was seen as a means for developers to circumvent public
participation. The frequent shift of a hearing into a negotiation of settlement was also
noted as sometimes eliminating the public voice from the proceedings.
The Task Force feels that public and third party participation in the OMB hearing
process, especially on complex Official Plan and zoning matters, is no longer possible
without expert assistance. Creating an intervenor funding mechanism may be the only
way to ensure that citizens groups are able to participate on a level playing field with
other parties in a de novo hearing.
However the Task Force believes the best way to support public participation in
planning matters is to make full use of the municipal planning process. That process
includes both informal and structured opportunities for publiC involvement and is geared
toward gathering citizen input into such things as Official Plans, secondary plans and
zoning changes. Participation is inexpensive for citizens and does not require special
expertise. This aspect of the planning process should be made as effective as possible
to ensure that balanced plans and good decisions are made at the local level. Public
participation should be supported and validated by an OMB process that affords an
appropriate respect and deference to the plans developed and decisions made utilizing
this public input.
If municipal planning decisions are shown greater deference in the OMB appeal process,
as suggested in the previous recommendations, and de novo hearings become the
exception instead of the rule, the need for intervenor funding as a means to ensure
public participation should be significantiy reduced.
10
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GTA TASK FORCE ON OMB REFORM
Recommendation:
The Task Force recommends that the Province establish a program to fund 3rd party
public participation in OMB de novo hearings with clear criteria defining eligibility. To
qualify for funding a citizen's group should:
. be incorporated or appropriately organized to take on the rights and
responsibilities of participating in an OMB proceeding
. have participated in the local planning process
. have the ability to raise a portion of the funds required for the appeal
process.
In addition, to qualify for funding, the case in which the group wishes to participate
should involve issues of broad public or provincial interest (e.g. protection of
environment, affordable housing or farmland). The province should allocate an amount
annually to support intervenor funding, possibly supplemented with a small surcharge
on development applications, and set a cap on the amount available to a single group.
The government may wish to specify how funding could be used (e.g. to retain legal
counsel).
4. Promote an Indeoendent and Fair Tribunal
The Task Force feels that generally the OMB members are well qualified and discharge
their duty effectively. While statistics presented to the Task Force do not support the
notion that the OMB is "a captured agency" in terms of its decisions, there is definitely a
public perception that the Board and the appeal process, as currently structured, favour
developers.
Recommendation:
The Task Force believes that several changes could be made to enhance both the
reality and the perception of the Board as an impartial and fair arbiter. It is therefore
recommended that:
. The term of appointment be increased to 6 years
. A job description, outlining the qualifications and expertise required of Board
Members, be developed and used in the selection process
. An open process be adopted for soliciting qualified applicants
. A non-partisan, multi -stakeholder screening committee be created to
interview and recommend to Cabinet candidates for appointment or
reappointment
. A more open performance evaluation process for Board Members be
implemented.
11
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GTA TASK FORCE ON OMB REFORM
If the all the Task Force recommendations are implemented, the Province may find that
fewer Board members are needed as the incidence of appeals and hearings should be
significantly reduced.
CONCLUSION
In summary, the Task Force feels that if implemented, the recommendations above will
substantially address the criticism of the current planning appeal process that was
documented in our consultations.
By updating the role of the OMB to make it primarily a review body, with a specific
standard of review to guide it, the number of hearings should be significantly reduced,
lowering the costs for all parties. The continued availability of a de novo hearing in the
case of egregious error offers an incentive for municipalities to make sure they conduct
themselves properly in planning matters. It also offers applicants and appellants
recourse if a serious mistake occurs.
However, the starting assumption must be that Municipal Councils properly fulfill their
legislated duty and responsibility to make good planning decisions for their
communities. Official Plans and zoning bylaws are a resuit of the community input
process mandated in the Planning Act. The OMB must not intervene to assume
decision-making authority unless such intervention is demonstrably justifiable. This is
essential to build citizen confidence in the process and will provide greater certainty for
the development industry. If every planning decision of a Municipal Council can be
challenged, then that confidence and certainty does not exist. The planning process
loses credibility and the Municipal Council is considered ineffectual on planning matters.
Municipal Councils must also live up to their plans in order to provide this certainty.
Without the palpable threat of a full OMB hearing hovering over each planning decision,
a Council's resolve to stand by their plan should be enhanced. With the system
proposed, where a mistake is the basis for an appeal, municipalities will have added
incentive to make sure their process is solid, that public input is widely sought and well
reflected in their reports and decisions. This public input will be acquired in a setting
which is much more informal and accessible than an OMB hearing.
The "justified appeal" process recommended by the Task Force gives greater weight to
both the local planning process and the public input that are part of that process.
Documentation of both would be examined during the review stage of the two step
process the Task Force has proposed. By reducing the incidence of appeals, costs
should be reduced for all parties. Providing intervenor funding for exceptional cases
that do warrant the full hearing de novo, due to some grave error, would ensure that
effective participation by citizens in the more complex process can occur.
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GTA TASK FORCE ON OMB REFORM
While the OMB may never enjoy public popularity, its credibility as an impartial arbiter
on important issues rests in part on a public perception of fairness and independence.
The current 3 year terms for Board members, the political appointment process, a real
or imagined association with a business-oriented government and the barriers to citizen
participation have somewhat tarnished the public reputation of the Board. Revisions to
the selection, appointment and tenure of Board members, as well as regular
performance evaluation, would help considerably in achieving both the factual and
perceptual independence critical for a quasi-judicial body.
Various stakeholders expressed the desire for greater clarity and direction from the
Province within planning legislation and the Provincial Policy Statement (PPS). The
Task Force agreed that the vagueness of the current PPS and the "have regard for"
provision of the Planning Act are problematic. A key theme of John Chipman's study2 of
the OMB is that the Board developed and applied its own planning policy in the absence
of clear provincial policy direction. Clearer provincial policy should strongly support
municipal Official Plans and the municipal role in delivering land use planning at the
local level. Since a review of the Provincial Policy Statement is currently underway and
municipalities have been active participants in that process, the Task Force decided to
confine its recommendations to the planning appeal process. However the Task Force
encou~ages the Province to expeditiously resolve these broader planning framework
issues through the PPS review process.
The GTA Task Force on OMB Reform has developed these recommendations with the
objectives of resolving some specific issues and improving the planning appeal process
for all involved. We hope our municipal colleagues will see fit to endorse these
recommendations and that the Province will act upon them.
2 Chipman, John G. 2002, A Law Unto Itself Toronto:The Institute of Public Administration of Canada,
University of T monto Press.
699U29
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ATTACHMENT 1
GT AT ASK FORCE ON OMS REFORM
Membership List
Chair:
Roger Anderson
Chair, Region of Durham
Members:
Andrew Allison
Senior Solicitor
Region of Durham
William F. Bell
Mayor
Town of Richmond Hill
Frank D'Amico
Councillor
City of Hamilton
Kevin Daniel Flynn
Regional Councillor
Ward 1 - Oakville
Region of Halton
Alex Georgieff
Commissioner of Planning
Region of Durham
Mark Holland
CityiRegional Councillor
City of Pickering
Paul Mallard
Manager, Development Planning
Planning & Development Department
City of Hamilton
Howard Moscoe
Councillor
City of Toronto
Gary Muller
Senior Planner
Planning & Development.
Town of Ajax
Ann Mulvale
Mayor
Town of Oakville (alternate)
Patrick O'Connor
Director of Legal Services
Region of Peei
Steve Parish
Mayor
Town of Ajax
Arvin Prasad
Director of Planning Policy and Research
Planning Department
Region of Peel
Don Sinclair
Director, Development Law
Corporate & Legal Services Department
Region of York
Nancy L. Smith
Assistant Corporate Counsel
City of Hamilton
14
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GTA TASK FORCE ON OMB REFORM
Staff Technical Support:
Debi Bently
Deputy Clerk
Clerk's Department
Region of Durham
Stan Floras
Assistant Corporate Counsel
Legal Services
Region of Halton
Jody Wellings
Manager of Current Planning
Planning & Transportation Services
Region of Halton
Christine Drimmie
Policy & Research Advisor
Regional Chair & CAO's Office
Region of Durham
Uno Trombino
Planner
Planning Department
Region of Durham
Kai Yew
Manager, Plan Implementation
Planning Department
Region of Durham
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GTA TASK FORCE ON OMB REFORM
ATTACHMENT 2
GTA TASK FORCE ON OMB REFORM
Terms of Reference
(Revised @20020916)
In response to a motion from the City of Mississauga, the Region of Durham Council hstructed
Chair Roger Anderson to invite GTA municipalities to form a task force on the Ontario Municipal
Board (OMB).
OBJECTIVE
The purpose of the task force is to review the mandate, purpose and function of the OMB, the
OMB appeal process and reiated matters and make recommendations for its reform to the local
and regional governments within the 905/705/416 areas and Minister of Municipal Affairs and
Housing and the Attorney General.
DELIVERABLE
Report on Recommendations for Reform of the Ontario MunK:ipal Board, endorsed by GTA
Municipal Councils.
RESOURCE COMMITMENT
Time of Councillors and staff to attend several meetings; to research, read, review materials,
prepare comments and suggestions; undertake tasks as assigned including consultations with
invited stakeholders, research or writing; Council review of the resuiting report.
OPERATING PRINCIPLES FOR TASK FORCE
. Members of the Task Force are asked to participate as equals, based on their expertise with
OMB issues, not as representatives of ther municipality.
. Decision-making will be based on consensus.
. Task Force minutes will be recorded and distributed by staff of the Clerk's Department,
Region of Durham.
. Meetings to be open to public.
REPORTING
Members of the Task Force will be responsible for making information on the activities of the
Task Force available to their respective Councils.
ApPROVAL PROCESS & DISTRIBUTION
Final report will be sent to Councils in the GTA for their endorsement. CounCils are asked to
send notice of their endorsement to the Task Force. The Task Force will then submit the
endorsed report to the Minister of Municipal Affairs and Housing and the Attorney General, the
Opposition parties and AMO, Copies of the report could also be sent to the Red Tape
Commission and the Central Ontario Smart Growth Panel.
EVALUATION OF PROGRESS AND IMPACT OF FINAL PRODUCT
. Check at the end of each meeting that the tasks are on target.
. Monitor changes to OMB legislation, Planning Act etc. that refiect the suggestions of the
Task Force. Follow up with Ministers.
16
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GTA TASK FORCE ON OMB REFORM
ATIACHMENT 3
Stakeholders and Sources consulted by the Task Force in the
preparation of this report:
MUNICIPAL RESOLUTIONS AND REPORTS RECEIVED BY TASK FORCE
Aurora - Sept. 24, 2002
Burlington - Mar. 18, 2002
Caledon - Sept. 21. 2001
Durham Region - June 19, 2002
Halton Hills - Oct. 2001
Halton Region - June 19, 2002
Mississauga - May 8, 2002
Oakville - April 2, 2002
Oshawa - Sept. 9, 2002
Ottawa - June 26, 2002
Peel Region - Aug. 8, 2002
Pickering - Feb. 4, 2002
Toronto- May 23, 2002
Whitchurch-Stouffviile - Ocl.15, 2002
STAKEHOLDER PRESENTATIONS TO GTA TASK foRCE:
Dr. John Chipman - Jan. 20, 2003
Greater Toronto Homebuilders Association - Jan. 20, 2003
Joshua Creek Ratepayers Association Inc. - Jan. 13, 2003
New Democratic Party (Ontario), Michael Prue - Feb. 3, 2003
Oakvillegreen - Jan.13. 2003
Ontario Liberal Party, David Caplan - Feb. 3, 2003
Ontario Municipal Board, Chair, David Johnson - Feb. 3, 2003
Pickering East Shore Community Association - Jan. 20, 2003
John Sewell - Jan. 13. 2003
Toronto Region Conservation Authority - Jan. 20, 2003
Urban Development Institute (Ontario and Peel Chapter) - Jan. 20, 2003
OTHER REPORTS CONSUL TED:
Greater Toronto Services Board. Countryside and Environment Working Group - Oct.5,
2001
Ontario Association of Chief Planning Officials (OACPO) - 1999 report to OMB
Ontario Professional Planners Institute Report and Recommendations - Feb. 25, 2002
Chipman, John G. 2002. A Law Unto Itself Toronto: The Institute of Public
Administration of Canada. University of Toronto Press
Joint Recommendations - Ontario Municipal Board Process and Procedures-
AMO,OPPI, Toronto Board of Trade. GTHBA, UDi, Feb. 20. 2003
Ontario Municipal Board Annual Report 1998-2000
OMB - Your Guide to the Ontario Municipal Board - Dec.2000
17
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GTA TASK FORCE ON OMB REFORM
SUMMARY OF CONSULTATION AND SUBMISSION RECOMMENDATIONS
AlTACHMENT 4
..
ISSUES IDENTIFED RECOMMENDATIONS MADE BYWH
Role and Jurisdiction of OMB
. Mandate/Scope of Board Disband/abolish OMB Sewell, Pickering, Joshua
. Nature of Appeais heard Creek
. Nature of Hearings held Use divisional court for appeals on egregious errors Sewell
Eliminate OMB planning appeal role and strengthen municipal Chipman, TRCA
olanninq orocess to cover anv outstandinq quas~iudicial needs.
Create a local appeal mechanism within planning process Toronto, Ottawa, Sewell,
Chipman, Liberals
Put Cabinet back as an appeal body. Joshua Creek
Province should review OMS role and function and include GTSB, Halton Hills,
consultation with public and municipalities Mississauga, Aurora,
Caledon, Burlington,
Halton, Durham, Oshawa,
Liberals, NDP
Province should review Planning Act, OMB Act re: appeal process Whitch urch- Stouffvi lie,
and role of OMB Sewell, Toronto
AMO should apply pressure on behalf of Ontario municipalities to Burlington, Caledon,
dissolve or radically alter the OMB's role Halton, Halton Hills,
Retain OMB with current mandate and role OPPI, UDI, GTBHA
Retain board but drastically overhaul it Liberals
Change/ reduce OMB role to an inter-municipal dispute resolution Chipman, PESCA
body only
Channe Ireduce mandate of OMB to eliminate "minor" issues Liberals NDP
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GTA TASK FORCE ON OMB REFORM
ISSUESIDENTIFED RECOMMENDATIONS MADE BY WHOM
. Screening Mechanism/Gatekeeper Eliminate appeals of approved Official Plans, policy decisions on Caledon, Mississauga,
growth, land use Durham, Oakville, Oshawa
Developer should not be allowed to appeal an urban boundary Joshua Creek
Restrict OMB role in review of municipal policy decisions to a Caledon, Oakville
review of the quality of the planning process
Limit role of OMB to planning issues that have broad public Liberals
interest
Set strict, narrow grounds for appeal PESCA, Joshua Creek,
Chipman, NDP
Need clear jurisdictional guidelines for OMB Liberals
Have a subcommittee that screens cases requesting appeal and
make appeals the exception rather than the rule PESCA
. Burden of Proof Increase burden of proof required of appellants before hearing Sewell, OACPO
granted
Where no clear provincial interest is defined, should have less Toronto, Ottawa
costly, local alternative forum for dispute resolution
Process Abuses/Complaints
. 90 day appeal period is an Change appeal period to 90 days from receipt of all required Liberals, TRCA
unrealistic processing timeframe information
for municipalities
Change to a 180 day process with all municipal documentation NDP
requirements to be met within 1st 90 days or applicant must
reapply.
Amend Planning Act to allow for more realistic timeframes based Toronto, Oakvillegreen,
on apolication tvee TRCA
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GTA TASK FORCE ON OMB REFORM
<.
ISSUES IDENllFED RECOMMENDATIONS MADE BY WHOM
Amend Planning Act to enable municipality to detail information OACPO,TRCA
required for their review to constitute a complete application
If Planning Act changed (previous recommendation), Ottawa
municipalities should define "complete application" in Official Plan
or their aoolication orocedures
OMB should change procedure to not deal with 90 day appeals Toronto, Ottawa, OACPO,
where information required for municipal review has not been OPPI
provided in timely way and apply case management techniques
. 90 day provision used to Don't allow piggy-back appeals TRCA
circumvent oublic inDut
. Appeal process can be used either OMB needs to further improve administrative practices and OPPI, Halton, Joshua
to delay or speed up planning procedures Creek, PESCA. GTHBA,
process Whitchurch-Stouffville
Don't allow site-specific "strategic" appeals by developers seeking TRCA
to have a future proposal considered under existing rules in a
municipality where a planning policy review is about to begin.
Improve pre-hea;ing process, reduce appeal times and costs by OPPI, Toronto, TRCA,
usng mediation and dispute resolution OACPO, Whitchurch-
Stouffville
Pilot use of pre-hearing to agree to information requirements to OMB
aoree to timelines
Mandatory mediation should be required for certain types of OPPI
aoolications
. Hearing process Increase routine use of pre-hearing mediation UDI, GTHBA, Toronto,
OAPCO
Develop mediation protocol OMB
Hearings should be true review, not "de novo" process PESCA
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OMB should review its own practices and procedures Ottawa, Whitchurch-
5touffville
COst of Municipal, Agency
Participation
. Deters public and municipal Reduce costs by improving administrative process UDI, GTHBA, Toronto,
pa rtici pation TRCA
. Threat of potential OMB costs Ma ke appeals the exception, not the rule PESCA
affects municipal pianning
decisions
Enact consequences for threatening with OMB ap~eal. Joshua Creek
. Diverts scarce municipal and Increase amount of time for application review by municipalities TRCA, GT5B, Mississauga,
commenting agency resources and commenting agencies Durham, Oshawa
from other planning needs and
local expenditure priorities
Require a complete application before review period clock is TRCA, GT5B, Mississauga,
sta rted Durham, Oshawa
Require appellant to indemnify commenting agency for costs TRCA
involved, especially in tight timeline situation
. Double costs to municipalities first Reduce costs by strictly limiting what can be appealed Caledon,Oakville,
for planning process with public Pickering, Aurora
input then to defend plan at OMB.
Reduce cost and duplication having review rather than "de novo" Oshawa, Chipman
hearing
21
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ISSUES IDENTIFED RECOMMENDATIONS MADE BY WHOM
Barriers to Public Participation
. Legalistic nature of process Create a separate more informal part of OMB hearing process to UDI, GTHBA, OPPI
obtain greater citizen input
Review prehearing practices to create greater involvement by all OPPI, UDI
stakeholders in an appeal
Assign case officer to assist citizen groups in understanding the Joshua Creek
process
Clearer citizen's guidebook to OMB procedures is needed OPP!, OACPO, OMB
. Timing of hearings Hold some hearings in evenings Joshua Creek,
Oakvillegreen, PESCA
. Notification process Increase notification time, geographic area and modes of Oakvillegreen
communication
Allow audiO/Video recordings of hearings Oakvillegreen, Joshua
Creek
. 90 Day appeal reduces public Increase pre-hearing notification to public Joshua Creek
input opportunities
OMB should exercise its right to dismiss appeals where grounds TRCA
for appeal are weak, where local public process being avoided
. Intervenor funding Provide intervenor funding to citizen 3'" parties, participants PE5CA, Oakvillegreen,
NDP
Finance intervenor funding from hearing costs paid by developers Joshua Creek, TRCA
. De novo hearing ignores any Make hearing a true review, not "de novo" process PESCA, TRCA
previous public input
. 3'" Parties stigmatized bv Board Citizen oDinion and written citizen statements should be qiven Oakvilleqreen
22
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GTA TASK FORCE ON OMB REFORM
.,.
ISSUES IDENTIFED RECOMMENDATIONS MADE BY WHOM
more weight by board Joshua Creek
Credibility/Impartiality of OMB
. Method and duration of OMB Request Attorney Generai to review OMB appointment OPPI, GTHBA, UDI,
appointments is flawed; need to proced u res Sewell, Whitchurch
enhance the Board's Establish professional qualifications for Board members 5touffvilleHalton,
independence Increase tenure of appointment (5 to 10 years) Burlington, Oakville,
Increase remuneration to attract qualified candidate, to reflect Oshawa, Oakvillegreen,
scope of responsibilities Joshua Creek, Liberals,
Create transparent, impartial selection/appointment process NDP
(most groups listed mentioned multiple aspects of the
appointment process)
Have AMO comment on/vet OMB member selection NDP
. Competence, expertise, Increase training for Board members Toronto
impartiality of Board members
questioned
Institute performance reviews by impartial panel Whitchurch-Stouffvi lie,
Oakvillegreen
Create mult~stakeholder panel to annually review OMB member Liberals
performance against specific parameters and publicly report
Create stronger integrity/conflict gUidelines for members Pickering
Planning Policy Framework
. Strength of provincial legislation Provide clearer provincial planning legislation and policy Sewell, TRCA
and policy framework statements as framework for planning decisions
Provincial Policy Statements should give clear direction on issues Liberals, NDP
like environment transit affordable housina. farmland
Amend Planning Act to require "consistency with PP5" rather Liberals, NDP
tha n "reaa rd for"
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ISSUES IDENTlFED RECOMMENDATIONS MADE BY WHOM
. Weight of official plans in OMB Province should provide clearer gUidelines on interpretation, Toronto, Sewell, TRCA
appeal process implementation of Provincial interest provisions
Increase Board's deference to Official Plans and municipal Oakville. Mississauga.
planning process and decisions Durham, Pickering,
Oshawa, PESCA. Aurora,
Burlington, Oakvillegreen,
Liberals NDP
Value Added of OMB Appeal
Process
. No "performance measurement" Detailed Review/assessment of OMB role, process and results Sewell
of OMB, no evaluation that shows should be conducted every 10 years
OMS improves planning outcomes
Role of OMB should be reviewed as part of the review of the Caledon, Oakville, Halton
Provincial Policy Statement Hills
Determine whether OMS decisions are significantly better than Halton Hills, Caledon
planning decisions made by Councils
. No other Province or State has an Abolish OMB or eliminate planning appeal function Sewell, Chipman
OMB type appeal body
Review of OMB should consider process used in other Canadian Oshawa
jurisdictions
. Credibility of planning process and Increase Board's deference to Official Plans, municipal planning Oakville, Mississauga,
Official Plans undermined process and decisions. Durham, Pickerng,
Oshawa, PESCA. Aurora,
Burlington, Oakvillegreen,
Liberals, NDP
. Difficult to promote or protect OMB needs flexibility to incorporate new ideas (i.e. Smart Oakvillegreen
innovative planning at the OMS Growth) into their decisions.
24
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GTA TASK FORCE ON OMB REFORM
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ISSUES IDENTlFED RECOMMENDATIONS MADE BY WHOM
. Hearing focus is very Site-specific; Need stronger policy statements at the Provincial level to require TRCA
broader issues, cumulative greater attention to cumulative impacts on environment.
impacts often not considered
OTHER ISSUES
. Developer influence in political Amend municipal election legislation to eliminate developer Joshua Creek
process funding of political candidates.
. Some OMB decisions display "US OMB should have more regard to applicable laws, Provincial Joshua Creek
style" of regard to private property policy.
rights which has little basis in
Canadian law.
Municipalities that requested or supported creation of a municipal committee or task force to make recommendations on
reform of the OMB by Council resolution:
Ch Burlington Oshawa
--0 Caiedon Ottawa
-..0 Durham Peel
- Halton Pickering
..", Halton Hills Toronto
Oakville
Acronyms used in chart:
AMO=Association of Municipalities of Ontario
GTBHA= Greater Toronto Home Builders Association
GTSB= Greater Toronto Services Board
NDP=New Democratic Party (Ontario)
OACPO= Ontario Association of Chief Planning Officials
OMB=Ontario Municipal Board
OPPI= Ontario Professional Planners Institute
PESCA= Pickering East Shore Community Association
TRCA=Toronto Region Conservation Authority
UDI- Urban Development Institute
25
.' "'.iI
MODEL RESOLUTION FOR ENDORSEMENT
WHEREAS the Ontario Municipal Board was created to resolve municipal land use
issues at a time when municipal governments were small and had limited
planning expertise;
AND WHEREAS the role and mandate of the Ontario Municipal Board have not
been significantly altered in response to increased municipal planning skills or
expanded municipal responsibilities for land use planning under the Planning Act;
AND WHEREAS the Ontario Municipal Board has broad planning powers and can
make decisions in the absence of a full municipal review of a planning application
and can overturn local planning decisions;
AND WHEREAS Ontario Municipalities invest significant resources in staff time,
legal and other associated costs in establishing and implementing local planning
policy;
AND WHEREAS there is growing concern from municipalities and citizens that the
decisions of the Ontario Municipal Board are eroding local planning authority;
AND WHEREAS there have been numerous Council Resolutions, municipal
reports and reports from planning professionals and academics advocating
reform of the Ontario Municipal Board;
AND WHEREAS the GTA Task Force on OMB Reform, an informed group of
municipal elected representatives and staff, after study and consultation, has
made practical recommendations for improvements to the planning appeal
process;
NOW THEREFORE BE IT RESOLVED THAT the Council of the
endorses the Report of the GTA Task Force on OMB Reform dated March 7,
2003;
AND FURTHER BE IT RESOLVED THAT this resolution be circulated to the Chair
of the GTA Task Force on OMB Reform, the Attorney General, the Minister of
Municipai Affairs and Housing, and the provincial party leaders.
699U42