Monday, June 25, 2012

The OMB: threat to democracy, or just doing their job?

Every few months you'll find an article in the newspapers that brings up the city's grievances with the Ontario Municipal Board (OMB, or the Board). Last Friday, Kate Allen's "OMB: Good for developers, bad for cities?" was the latest volley by Toronto councillors to rid themselves of the Board. This follows a motion the city made back in February to "free the city from the OMB's jurisdiction."

For those who don't know what the "OMB's jurisdiction" entails, the simple answer is a lot. The Board was created by the Ontario government back in the dark ages as a body to help manage and construct railroads in the province. Overtime, the provincial government has given them significant power, including the ability to serve as a tribunal for resolving land-use planning disputes.

I won't bore you about what that means, except to say that their power and reach is significant. The OMB acts as a quasi-judicial "court" that hears disputes between parties (be they municipalities, developers, the public, etc.). Following a hearing, its members can then decide what they feel is the correct course of action to solve a dispute, whether a party (such as a municipality) likes the decision or not. Their judgement is generally "final"; only questions of law can be appealed from the OMB (to the Ontario Divisional Court). Given that many planning disputes are matters of opinion and interpretation of various by-laws, official plans, and provincial statutes, that can make it very difficult to appeal. After all, divisional court judges are rarely land-use planning experts; what expertise do they have to say that an OMB member (who more often than not is a land-use planning expert in their own fashion, be it profession or experience) has erred, unless it can be shown that said member did not properly apply the law?

The latest article throws a few things out there that I feel need some blog-time. It's easy to get the impression via reading the article that the OMB is pro-development and anti-democracy; brushes which I think unfairly paint the OMB as a devilish, loaming provincial body meant to crush the good sense of the good-natured municipalities who should best know how to build their cities.

Certainly, the OMB is not (and shouldn't be!) immune to criticism, but that there is a lot of good that the Board can (and does) do in its position. It would be short-sighted for Toronto to up and leave the OMB (the overused phrase, "throwing the baby out with the bathwater" comes to mind) without considering what exactly would replace it. Many of the problems at the Board could be fixed through reform, rather than individual municipalities deciding to go it alone. I've got two main beefs with the article linked above: 1) the idea that the Board is "unelected" matters, 2) that there isn't any analysis about how many cases the OMB are deciding in favour of developers in the face of city planning staff objections.

What is "Legitimacy"?

The fact that the OMB is "unelected" gets thrown around a lot, as if that should be a reason for dissolving the Board. I'm not very succinct when I write generally, but let me throw this out there, because I think it sums up my feelings about this pretty well: legitimacy is not about policy.

Let's be clear: legitimacy is about having coercive power that you can exercise in specific circumstances, validated by a particular process (police officers and fire fighters for example). We might disagree with people who hold coercive power over us (like politicans), but such disagreements are almost always about the actions they take that coercive power allows them, rather than the coercive power in and of itself.

Putting aside the Constitutional division that says "yes, the province can do this", lets keep in mind that the OMB does not have a mandate to create policy (Note: there was a time when the OMB wasn't bound by provincial mandates, but that hasn't been the case for some time now). Rather, they are directed to follow provincial guidelines (created by elected officials) and use those guidelines to settle disputes between parties. Past this, it is then the duty of the parties involved to argue why their side best represents "good planning".

I'm not convinced that electing OMB members would do much to change the differences in policy (the real beef that municipal councillors have with the Board). If there is an issue with legitimacy at the OMB, it stems from individuals who have disagreed with a Board's ruling (which is to say, they distrust the Board because they're not confident it will rule in their favour).

City Matters

Experts matter at the Board; how could they not? We can have an argument over how much an expert opinion should be worth, but professionals tend to be a much better source of information than the general public is. Let's use the example found in the article, the case of the "seventh story" on Dundas St West here in Toronto. I'm pretty sure this is the case in question that Councillor Peter Milczyn had a problem with. Here's the general setup:

1) Etobicoke (the western part of Toronto) has a by-law that might allow a seven story building.
2) A study of Dundas St West is started to envision what the area could look like.
3) A developer, who is part of this study, submits an application under the current by-law (which might allow seven stories) to build a seven story building.
4) The study finishes, and a new by-law is enacted which suggests that six stories should be the limit.
5) Council refuses the developer's application on the grounds that seven stories is too high.
6) Developer appeals to the OMB, who awards the developer with that seventh story.

What follows (if you read the document) is a sizable explanation about why seven stories is (or is not) appropriate for the site in question. Let's be clear that while what the developer did may be scuzzy, it wasn't illegal, and as the Board explains, the application should be examined under the planning regime that it was filed into, not a future one that hasn't come into effect yet.

More to the point, the document makes reference to resident complaints. Allow me to quote the document (bolded emphases mine):

The Board heard considerable testimony from witnesses for the City, the Kingsway Group and the neighbours, that the proposed building is too tall and would therefore have a negative impact on the neighbourhood. The Board finds that “too tall” does not exist in a vacuum for the purposes of the determinative official plan, the Etobicoke OP, or the much-discussed Dundas Street West Avenues Study. The Etobicoke OP provides, in the context of a boundary adjustment, that height and form of development are relevant considerations. However they are relevant in that height and form of new development should not “create undue adverse impacts in terms of overshadowing or loss of amenity”.

The only shadow studies presented to the Board demonstrate that the building, at its proposed height and mass, with the proposed step downs and setbacks, would have no shadow impact on the residential properties to the south at any time of the day or year. Similarly, the studies show that the Brownstones, to the east, would receive no more shadow than they create themselves. With respect to loss of amenity, the Board heard no substantiated evidence that the proposed building would result in overlook or lack of privacy. The Board cannot find that the evidence of neighbours that they do not want a “tall” building “encroaching” into their neighbourhood constitutes evidence of loss of amenity.


As noted above, the City is apparently satisfied that the proposed development would have no adverse traffic impact and no evidence was adduced to demonstrate that there would be any adverse impact on any other public facility like schools.

TL/DR: The OMB heard the complaints from the local residents, but none could be substantiated (or were outright contradicted by submitted evidence). 

In our law class at Ryerson, we talked to an OMB member who described the challenge in weighing contrasting opinions. In the end, she said, Board members could not "assign" weight to the argument of someone just because they didn't have the resources to do a shadow study, or to hire a lawyer to defend a by-law. How can they? They have to come to an ultimate decision, and that decision must be made based on fact and "good planning", not heart or sheer numbers of opponents.

More importantly however, I want to convey that the number of cases that are "lost" by the city at the OMB represent only a fraction of the total cases that go before it. Andrew Moore did a study of OMB in his doctoral thesis, "Planning institutions and the politics of urban development: The Ontario Municipal Board and the City of Toronto, 2000-2006". He examined 285 cases between 2000 and 2006, and tried to determine who the OMB decision favoured. His result?

Moore was able to determine the position of city planning staff (not politicians) in 273 of the 285 cases he examined. Of those, 42 were decided in favour of the developer (and did not favour another party, such as the city or a neighbourhood association). City planning staff gave "outright support" in 13 of  cases, and "hesitant support" in six. We can probably assume that on a whole, city planning staff agrees that the developers proposal at least mostly represents good planning.

Next, Moore noted "provisional rejection" in 11 cases, and "outright rejection" in 13. This ~9% (24/273 cases) represents what might be considered the "problem" cases for a municipality, where the Board decides in favour of the developer despite the objections of their own city planning staff. Of course, it's important to remember that even this 9% might not be truly accurate, as potentially these 24 cases could have had the support of municipal politicians, but were appealed by another group (Moore notes two instances where this happened, although without his data it's unknown whether either could have appeared in these 24 cases) and a large portion of these 24 cases might have gone to the OMB over the neglect of council to act on the proposals (i.e. not outright rejecting them) in the time allotted due to provincial guidelines. Moore notes that 30 of 77 proposals (about 39%) fall into this category.

So what's left? Perhaps 5-10% of all OMB cases where the developer "sticks it" to the municipal government? Is that so high a percentage that we should seek absolving the Board rather than trying to reform it first?

I dunno, convince me.

- Eddie

Sunday, June 10, 2012

A Shakespearean Dance-Off

(Piotr Stanczyk in Hamlet. Photo by Aleksandar Antonijevic. Image from the National Ballet of Canada's website)

One of the neat things about living in the Big Smoke is having access to a variety of performances that would be impossible to provide inside the confines of a city like Halifax (oh, at one time weren't you the big city dame that captured my heart). I'm not talking about the old guy who busks in front of the Forest Hill Loblaws, singing Crash Test Dummies (perhaps too chipperly) or that breakdancer guy at the north-east corner Yonge and Dundas who stoically stands there until you throw in a dollar. Those are neat things, but transferable to other cities.

No, I'm referring to institutions that require heaps of money, particularly from donors, to operate, the kind you wouldn't be able to readily raise with a music device and a bit of talent. The National Ballet of Canada is one such company, currently under the direction of (the still fabulous looking) Karen Kain.

Of course, I'm not really the kind of guy to partake in watching ballet, but I am the kind of guy with a girlfriend who partakes in watching ballet. Since moving to Toronto, I've seen probably only half a dozen ballet performances, but despite not being a "fan" I do have to say that the raw athleticism displayed by performers is admirable, much in the same way that watching figure skaters at the Olympics can be enjoyable despite having little interest in the sport itself.

Yesterday, I had the chance to catch Kevin O'Day's production of Hamlet at the Four Seasons Centre venue. I admit that I'm not a big fan of Shakespeare, but for a general lack of interest in reading books rather than a general lack of interest in reading plays. As far as they go, I find Hamlet to be one of his better works that I have read, and certainly there are no lack of authors who have taken the basic structure and adapted it. Disney's The Lion King is perhaps one of the best known pieces that shares the basic plot, transforming the lead into a lion, having "Claudius" played by Jeremy Irons, and adding a monkey that knows kung fu. Rosencrantz and Guildenstern are Dead is an amusing example of two characters bumbling through Hamlet, completely unaware of what is going on, and unknowingly sent to their deaths once they arrive in England. In short, why not a ballet?

(It would be improper for me not to thank Alex for the ticket, although unfortunately not under the best of circumstances; she has a very sick cat that is currently requiring most of her attention. Get better Mocha!)

O'Day wisely decided that a contemporary ballet (if you don't know what that is, think non-traditional) would be the best way to express the emotions of the play's characters, and he largely part he succeeds in showing the audience the frustration Hamlet feels as he struggles to decide whether to avenge his father or not, the cautious concern Claudius has for his distant son-in-law, and poor Ophelia, who perhaps like Rosencrantz and Guildenstern (R&G), is missing the key piece of the puzzle that is driving Hamlet's madness. The grief-stricken Hamlet pounds the floor in his rage, R&G play merry games, ones perhaps more fit for a keg party than a ballet, and Ophelia haunting moans, before her suicide. Haunting percussion fills in the gaps as the "actors" spar with each other.

Unfortunately for the ballet, it appeared that the structure of Hamlet produces two very different halves. The first two acts of the play spend much of the time setting up the second half, explaining the characters and their motivations. The second half is full of murder and sword fights. What follows from the ballet is a confusing and muddled first half where the dancers seem to stretch the time out, their motions able to convey emotion but not necessarily intent. I admit that it has been a while since I read Hamlet; without the reader notes I wouldn't have understood who this mysterious gentlemen who-is-not-Hamlet dancing with Ophelia was (her brother, Laertes). Maybe it's just me, but the difference between sibling love and romantic love can look pretty similar in ballet with dance as the only form of communication. The absence of the ghost of Hamlet's father bothered me a bit.

Regardless, things certainly pick up in the second half, with a jazzy drum beat and a group of dancers creating a frantic and fun scene that has Hamlet setting up the "play with in a play" to divine whether Claudius is a no-good dad murderer or not, that cascades into the death of Polonius, Ophelia (who plays the best of the show with her final scene), and then the duel between Hamlet and Laertes which ensures no one leaves alive. If anything, the second half's brilliant construction is crammed into too short a period, placing more emphasis on action than dancing.

Still, the legibility of the second act of the ballet makes up for the sometimes plodding first act, and despite a bit of a confusing sword duel at the end the sum product was quite satisfactory. I felt a bit cheated by the first act as I came out of the Four Seasons Centre, but I think O'Day did about as best as he could with it; I earlier mentioned the lack of Hamlet's ghost dad, who probably would have spiced things up, but the more I think about it, the more I wonder if that would have really have done anything but stop the characters from dancing so much, which I guess should probably be the point of a ballet right?

Upcoming is this seasons performance of Chroma, which for those who don't know is a short contemporary piece danced to several White Stripes songs (performed by a symphony, rather than the original music. It's a unique take on "Hardest Button to Button" I assure you. It plays with a few other short ballets, some traditional (I like the ones with lots of people dancing at once) and others more contemporary (last year they had one where the performers were acting kind of like ants) I saw it last year and it was pretty good, so I'm looking forward to it. If you're in Toronto, I urge you to check it out, even if ballet isn't your thing.

- Eddie