News clips: Waterloo region to challenge OMB ruling in court

By Melissa Murray August 18 2013 Cambridge Times
The region is taking the Ontario Municipal Board (OMB) to court, alleging board members were biased in their decision on the appeal of the region’s official plan.

The region has learned that members of the board were at the same land budget training session as the appellants’ primary witness, who presented at the session. As a result, council decided to start a divisional court application for review of the ruling based on the absence of procedural fairness.
Rob Horne, regional planning commissioner, said this is a “rare step” for council.
“This is a 20-year plan for growth, so the pressure is very high,” he said after council voted during a special council meeting to pursue the application.
The region’s official plan was approved in 2009 and underwent an appeal. In January of this year, the OMB ruled on the side of the appellants.
While the region’s official plan denoted 80 hectares of land for future development in the core areas for intensification, the board felt more land should be allocated – up to 1,053 hectares.
“The appellants were looking for about 10 times more land,” Horne said.
“Our concern is that the methodology from the developers is so different from our own. We question whether the training the board received was (first) appropriate because the consultant was already active on the board’s appeal and second was it balanced.”
The region believes the file was open when primary witness Jeannette Gillezeau, also senior director, research, valuation and advisory with Altus group, gave the presentation to OMB members about her methodology, which the OMB eventually sided with.
Horne wasn’t able to give a timeline detailing when the court application might be heard.
News of the region’s decision to take the OMB to court was called “alarming” by the co-founder of Smart Growth for the Waterloo Region Kate Daley.
“It was already clear that the OMB’s decision wasn’t in the interest of the people of Waterloo Region and the Province of Ontario. Now it seems we can’t even trust that this decision to overrule our democratically elected representatives was made within the basic standards of procedural fairness. Our democratic system depends on that trust,” she said.
If the court determines there was bias, Horne said a new hearing would have to occur, but it would be up to divisional court to determine how that would proceed.
The region had previously sought to overturn the OMB’s decision, which would have also been heard in divisional court.
Horne expects that appeal, which was to be heard this month, will be set aside until after the new action is assessed.
“If the process was tainted, the evidence and decision would be moot, so there would be no reason to look at it,” he said.
“I think the region feels it is first incumbent to find out if the process was biased. We feel we have the right to that basic principle – that the judicial body is unbiased in its decisions.”

Liberals promise improvements to Ontario Municipal Board
Premier Kathleen Wynne’s minority Liberal government is planning reforms to the controversial Ontario Municipal Board to make the panel more accountable to the public
By Robert Benzie Toronto Star Aug 20 2013
Premier Kathleen Wynne’s minority Liberal government is planning reforms to the controversial Ontario Municipal Board to make the shadowy panel more accountable to the public.
“We’ve heard from you and we’ve heard from the public that the rules can sometimes be too complex, and the delays and appeals can be frustrating,” Municipal Affairs Minister Linda Jeffrey told delegates to the Association of Municipalities of Ontario conference in Ottawa.
“This frequently contributes to conflicts between municipalities, developers and community groups. Our government wants to address these concerns, and we’re committed to improving the land-use planning and the decision-making process by making it simpler and more effective,” Jeffrey said Tuesday.
“This includes reviewing the process for land-use planning appeals at the Ontario Municipal Board. We want . . . to foster better co-operation between municipalities, developers and community groups so they can work together to make those tough decisions,” she said.
“This fall, my ministry will begin a consultation process to enable municipalities, community groups and stakeholders to provide feedback on this issue and help us develop solutions.”
In an interview after her speech, Jeffrey said “it may require legislative changes” to revamp the OMB.
The move comes as NDP MPP Rosario Marchese (Trinity-Spadina) is pushing private member’s legislation to exempt Toronto from the OMB’s oversight of planning issues.
Marchese’s bill, which has passed second reading in the legislature, would give the city authority over zoning bylaws, development approvals and other planning matters within its boundaries and allow for the establishment a new appeals body of its own.
Last year, Toronto city council voted 34-5 to pull out of the quasi-judicial board that has been criticized for overturning decisions made by elected officials.
The OMB is widely seen as favouring developers over neighbourhood activists, who often lack the money to hire lawyers and planners.

How the OMB stifles democracy in Ontario
Like the Senate, the Ontario Municipal Board second-guesses democratically elected representatives
By Martin Regg Cohn Toronto Star August 27 2013
The Senate isn’t the only unelected, unaccountable body that likes to second-guess our democratically elected representatives.
Perhaps you’ve heard of the Ontario Municipal Board? The OMB may lack the high profile of the Senate, and its appointees don’t make headlines for bogus expense claims.
But the OMB’s legacy of meddling makes it no less notorious. After decades of overruling city councils across the province to side with powerful developers, it has a reputation for favouring special interests over the public interest.
Now the OMB is itself getting a second look. A creature of Queen’s Park, it has just picked a fight with the province that it probably can’t win.
Last week, after months of public musings, the Liberal government announced a review of OMB operations. It will seek public feedback and try to streamline the way this quasi-judicial body — unique in North America — overrules city halls and overreaches into provincial governance.
Like the Senate, the OMB dates from the 19th century, when it minded the railways and municipal finances. Up until the 1990s, its members also enjoyed lifetime appointments.
It weighs in on everything from fence disputes between neighbours to zoning debates over high-rise condos. But all these years later, Ontario’s big cities say they are mature entities that don’t require adult supervision.
In a closely watched move, Waterloo Region is taking the OMB to court over a bizarre ruling that granted developers access to more than 1,000 hectares of prime farmland. Waterloo’s official plan had restricted future development to 85 hectares of urban lands designated for intensification — in line with the provincial Places to Grow Act — but land-hungry developers appealed to the OMB and won.
Hence the pushback from city hall, and the call for public feedback out of Queen’s Park. In a rare move, the government has also joined Waterloo’s formal court challenge against the OMB.
The Waterloo appeal matters because the region had painstakingly aligned its official plan with the Places to Grow Act. If the OMB can effectively trash the provincial government’s long-term vision for population growth, it would set a disturbing precedent for the entire Golden Horseshoe area.
As a former minister of municipal affairs, Kathleen Wynne got the ball rolling on a review. Now as premier, she also holds the agriculture portfolio, which makes her directly responsible for the Places to Grow Act. With an election looming within the next year, municipalities will judge her actions after a decade of Liberal promises to make the OMB work.
“I was working on preparing some recommendations as to how we might change the OMB,” Wynne said pointedly after the surprise Waterloo verdict. “It’s probably time for a discussion about whether there needs to be further changes.”
Procedural reforms in 2006 were supposed to remake the meddlesome OMB into a more circumspect and constrained appeals body. But these turned out to be mere tweaks, and frustrated opposition parties have more recently introduced bills to curb the OMB’s power.
A Tory proposal would exempt cities from OMB appeals on intensification, while the NDP bill would exempt Toronto outright. Toronto city hall voted to seek a full exemption from Queen’s Park last year, after rejecting a previous offer that didn’t go far enough. All that manoeuvring puts the Liberals on the spot.
Critics argue that the OMB too often serves as a surrogate planning board, allowing developers with deep pockets to do an end-run around Toronto’s planning department. That’s anti-democratic.
Despite its unpopularity, few believe the OMB can merely be wished away. If it didn’t exist, we would have to reinvent it. Without an effective appeals process, city councillors could reflexively side with local residents or anti-intensification NIMBYism. Someone has to play the role of impartial referee, lest everyone end up in even more costly courtroom battles.
For big cities such as Toronto, it seems only fair to allow for a locally-run, arms’ length appeals mechanism to guard against errors of law or lapses in due process. It rankles when non-Toronto appointees to the OMB issue edicts without explanation, undermining years of negotiations and planning work.
Substituting the often arbitrary judgment of outside OMB appointees for on-the-ground assessments by local councillors leaves us all going in circles. As the Wynne government tries to square that circle, it should let Toronto lead the way. And find a better way for the rest of the province.