Councillor Josh Matlow

OMB: Good for developers, bad for cities?

Toronto Star. June 23, 2012


The story of the Ontario Municipal Board is a story about the future of Toronto: whether, as growth redraws the skyline, this city will be a paint-by-numbers or a work of art.


As a quasi-judicial tribunal that hears appeals arriving from municipal planning decisions, the OMB’s story is also one strewn with enough mind-numbing jargon to stupefy the average city resident.


Not so for the average city councillor.


OMB? Those are “the scariest three letters known to humankind,” says Mary-Margaret McMahon.


“It’s the kiss of death,” says Pam McConnell.


It could ruin your tomatoes, says Josh Matlow.


“This affects the very way we build our city. This affects what you see in your neighbourhood every day,” he argues.


“This affects whether you’re going to have a shadow over your tomato garden in your backyard,” or a ruinous commute, or any number of quality-of-life issues.


In February, with Matlow and Councillor Kristyn Wong-Tam leading the charge, council voted 34–5 to ask the province to quash the OMB’s planning power over Toronto. Though only Queen’s Park can make that decision, Toronto isn’t the only body agitating for a change. Mississauga already voted to dismantle the OMB last year, one Markham councillor wants the same, and Wong-Tam says she’s heard rumblings from Hamilton and Ottawa.


Critics point to a pile of objectionable decisions: developments that loom over existing neighbourhoods, developments that encroach on green space, developments that encumber stressed infrastructure.


The OMB, whose unelected members have wide-ranging jurisdiction to overrule local governments, is a planning tool with no obvious parallels in North America.


Proponents, however, say it’s a crucial release valve for forces of NIMBYism that threaten to stunt the growth keeping our city vibrant.


“A couple hundred people or a couple dozen people coming to a community meeting and putting pressure on a councillor and that being the ultimate decision as to whether a significant intensification project” goes forward — “The process can’t end there,” says Steve Deveaux, co-chair of the Building, Industry and Land Development Association’s Toronto chapter.


Some cynics — even those who hate the OMB — say councillors use it as a scapegoat for approving unpopular but perfectly reasonable developments.


Deveaux and others also note that the province’s growth strategy encourages intensification over sprawl. The OMB simply upholds that legislation, even if some Torontonians have trouble absorbing the rate of change.


“The goal of it is to take some of the emotional discussion out of the conversation,” he says, and substitute it for “proper, professional evidence,” like traffic studies and measurable shadow impacts.


Fans and foes of the OMB, strangely, often use the same arguments to prove opposite points. For planning consultant Ken Greenberg, the tribunal’s court-like, adversarial proceedings are “exactly the wrong kind of methodology or discussion to be having about planning issues.”


When a major development application comes before the city, council must ultimately approve or reject it. But before that happens, the proposal passes through public consultations, a professional planning report, and community council. Residents and the local councillor can negotiate concessions they believe will improve the plan — a podium better integrated with the streetscape, for example, or community benefit funds to build a parkette.


But proceedings at the OMB are more akin to criminal court, says Greenberg. Some OMB matters are resolved through mediation. But in general, good city-building should mean “open discussion, where people can talk about what’s important to them . . . where you don’t have lawyers jumping up and down.”


Etobicoke Councillor Peter Milczyn agrees. At the OMB, he says, all talk of neighbourhood character or broad city vision is outweighed “if you can demonstrate that, numerically, something works.”


One decision on Dundas St. W. particularly aggravated him. The approval was minor, Milczyn admits, but one he feels undermined the city’s good, consultative processes.


In 2005, the staff began an “Avenue Study” of Dundas that — after months of community meetings, design workshops, and work by planning and transportation staff — set a six-storey cap for new buildings. An executive from development company Dunpar Homes sat on the Avenue Study’s advisory committee.


But within a year, Dunpar came back with a seven-storey condo application. The city said no. In the end, Milczyn notes, “The OMB gave them everything they wanted.”


“Why bother going through processes (and) consulting the public?” he asks. “It just makes a mockery of the whole thing.” (The OMB hearing included an evening of community feedback, which was mostly negative. Dunpar later applied for, and received, another storey.)


Milczyn doesn’t want to abolish the OMB — he agrees it stops councillors from caving to pressure from NIMBY residents, or for that matter, deep-pocketed developers.


But he wants stricter rules about what can be appealed. As it stands, “everything can be tinkered with constantly. And that’s what’s incredibly frustrating.”


Wong-Tam decided to press the issue at council for similar reasons, and because city resources are consumed by hearings.


“The whole legal machinery that feeds into this board, there’s a lot of money to be made. It’s a lot of very expensive legal fees. But the City of Toronto doesn’t have resources to spend our time wasting taxpayers’ money defending the city’s position,” she says of the hours spent preparing for and arguing at OMB hearings.


And when residents’ associations bring a complaint to the OMB, Matlow adds, it becomes an even bigger problem.


“Most developers are able to adequately budget to hire consultants, planners, skilled lawyers, and whatever else they need,” says Matlow.


If you are an average resident, “You are not going to be able to buy as much justice.”


The development community disagrees. They note that it only costs $125 to file an appeal with the OMB, while regular court processes can be much more formidable. And they believe the board is an important watchdog for planning staff.


“I think many councillors would prefer that the planners just parrot the decisions of the politicians. But they don’t, because they know their credibility is subject to review at the Ontario Municipal Board,” says Stephen Diamond, a developer and former municipal planning lawyer. Diamond and others think that if councillors were elected at-large, rather than ward-by-ward, NIMBY residents would hold much less power.


In April, acting on council’s OMB vote, Wong-Tam, Matlow and Milczyn met with Municipal Affairs and Housing Minister Kathleen Wynne to air their complaints. Wong-Tam remembers the meeting as “frustrating.”


As Wynne told the Star, “We don’t have any intention of abolishing the OMB. But I’m always open to suggestions and I’m certainly listening to people’s concerns.”


She noted that in 2006, Toronto was given the right to establish a local appeals body for committee of adjustment matters, which deal with “minor variances” to bylaws rather than big, rezoning applications usually required by major development applications. The last administration voted down the idea, but the current council is setting up a working group to discuss issues such as how to choose members, and whether filing fees could cover set-up costs.


“I think that’s a really good first step,” says Wynne. “Those local issues should be resolved at the local level.”


About the OMB


The Ontario Municipal Board has existed for more than a century and was originally responsible for managing inter-city railway construction. Today, it functions as a last-stop appeals body for various land-use disputes — anything from minor bylaw variances to major rezoning applications. OMB decisions can, however, be taken to divisional court. Some appeals settle through mediation.


The OMB has about two dozen board members, who are appointed without term limits. Salaries range from $93,050 to $106,350 for a full-time member to $115,000 to $131,450 for the associate and vice-chairs.


Members come from various professional backgrounds including law, planning, architecture and administration. About one-third are based in Toronto, others as far away as Sault Ste. Marie. A tribunal appeal is usually heard by one member, and in rare cases as many as three.

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