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
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