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HomeMy WebLinkAboutCSD-16-061 - Ontario Municipal Board (OMB) Reform REPORT TO: Planning & Strategic Initiatives Committee DATE OF MEETING: December 5, 2016 SUBMITTED BY: Michael May, Deputy CAO, Community Services PREPARED BY: Larry Tansley, Assistant Solicitor, 519-741-2200 ext. 7266 Alain Pinard, Director of Planning, 519-741-2200 ext. 7319 WARD(S) INVOLVED: City Wide DATE OF REPORT: November 16, 2016 REPORT NO.: CSD-16-061 SUBJECT: Ontario Municipal Board (OMB) Reform ______________________________________________________________________ RECOMMENDATION: That Report CSD-16-016 be endorsed and submitted to the Province as the City of comments on Ontario Municipal Board reform. BACKGROUND: The Government of Ontario is undertaking a review of the scope and effectiveness of the Ontario Municipal Board (OMB). A public consultation was launched in October 2016. Comments will be accepted until December 19, 2016. There are two major ways to participate in the consultation. Comments are being received at Town Hall meetings that have been scheduled throughout the Province. Comments can also be submitted in response to questions found in a consultation document which had been previously circulated to Council and which is available from the Ministry of Municipal Affairs web site. The nearest Town Hall meeting took place in Guelph on November 1, 2016 and it was attended by the Director of Planning. Members of the general public comprised the majority of those in attendance, and the focus was on individual comments and reports from breakout groups. This report provides responses to the questions asked in the consultation documents along with some additional comments. It is recommended that the responses and reform. By virtue of this recommendation, no action is proposed for the resolution pertaining to OMB reform that was originally deferred by Council on February 22, 2016. *** This information is available in accessible formats upon request. *** Please call 519-741-2345 or TTY 1-866-969-9994 for assistance. 3 - 1 REPORT: Overview of the OMB (from consultation materials) The OMB is an independent tribunal that makes decisions government. the Ontario Railway and Municipal Board in 1906. It was renamed the Ontario Municipal Board in 1932. While the OMB has diverse powers and responsibilities, its primary function today is that of an appeal body on land use planning issues, and most matters before the Board are appeals under the Planning Act. In 2014 and 2015 the OMB received 1,535 files related to the Planning Act. Files related to Minor Variances are the most common, significantly outpacing other file types as seen in graph below. Minor Variances Zoning By-laws Consents Offical Plans Plans of Subdivision Purpose of the Reform The consultation paper states that the purpose of the reform is to determine whether the Enabling more meaningful, affordable citizen participation Giving more weight to local and provincial decisions Supporting clearer, more predictable decision-making Promoting alternative ways of settling disputes. As a general comment all of these objectives are embraced by staff. 3 - 2 Scope of the Reform The scope of the reform is quite broad and some of the potential changes being considered are significant. The potential reforms have been organized according to five themes: Citizen participation and local perspective Clear and predictable decision-making Modern procedures and faster decisions Alternative dispute resolution and fewer hearings The consultation paper provides background information for each theme area which helps understand why the questions are being asked and how they relate to the reform objectives.Of note is that outright elimination of the OMB is not one of the reform options being pursued. This is stated in the consultation paper and was it was mentioned at the Town Hall meeting in Guelph. Questions and Responses This section provided comments and responses to the questions in the consultation document. 1.What is your perspective on the changes being considered to limit appeals on matters of public interest? As a general comment, too many files end up at the Board and the standard to have a dispute settled by the OMB needs to be more robust. This proposal has the potential to do that but more detail is required in order to fully understand the implications of this general concept. It is suggested that the philosophy should be changed from one of thinking in terms of what limits should be placed on the large number of matters that are now appealable, to that of establishing a short list of those items that can, or absolutely must be appealed. It is possible that the short list of appealable items might vary in accordance with the level of sophistication and size of the municipal government in question. As a general matter, appeals to the OMB in respect of minor variance and consent applications should not occur, and the local municipalities ought to have the ability to review these decisions themselves in the event of a request. Although the government recently introduced prohibitions against appeals to entire Official Plans, our observation is that an appellant is still able to launch an appeal which is practically a whole plan appeal, leaving perhaps a few policies that are not appealed. At the very least, Official Plan policies that outline community visions, provide factual information or that mirror policies in approved upper tier documents, provincial plans or policy statements, should not be appealable. 3 - 3 2. What is your perspective on the changes being considered to restrict appeals of development that supports the use of transit? If the government accepts a different approach under which comparatively few matters are appealed, it might not be necessary to pursue this approach. In any event, this proposal gives rise to concern. Transit is just one of many interests that need to be given consideration when making planning decisions. A development proposal with transit-supportive densities could be severely flawed with respect to many other important planning considerations. At the very least, transit-supportive should be more clearly defined so that there is a common understanding of what it means in the context of this reform proposal. 3.What is your perspective on the changes being considered to give communities a stronger voice? The community has the strongest voice when it expresses itself through the local political process, which provides the entire community the opportunity to express views in an inclusive and inexpensive manner. The best way to give the community a voice is to make recourse to the Ontario Municipal Board the exception rather than the rule, which is exactly opposite to the role that it has increasingly undertaken in some communities within Ontario. The proposal to prohibit the appeal of interim control by- laws which is presented in the question preamble is supported. 4.What is your view on whether the OMB should continue to conduct de novo hearings? Currently, the OMB conducts the hearing starting the decision-making process from the very beginning, giving little or no weight to decisions made by local Councils and to the community engagement that has already taken place. Only in exceptional circumstances should the OMB hear an appeal as a hearing de novo. Rights of appeal should be argued in a similar manner as they would before the Courts, with the legal burden on the appellant to demonstrate that the Council decision is in error and that the error exceeds a specified standard of review. Although most matters should be decided at the municipal level, once a matter reaches the OMB, the focus should be on comparing expert evidence. 5.If the OMB were to move away from de novo hearings, what do you believe is the most appropriate approach and why? Deference to municipal decision-making requires that the Board not intervene to reverse a decision of a municipal council unless the decision being appealed is unreasonable. 3 - 4 Appellants should be required to demonstrate that the Council decision is in error and that the level of error exceeds a specified standard of review. Only the aspects of the municipal decision that are in error should be before the Board. This would go a long t Ontario Municipal Board hearings. 6.From your perspective, should the government be looking at changes related to transition and the use of new planning rules? If so: what is your perspective on basing planning decisions on municipal policies inplace at the time the decision is made? What is your perspective on having updated provincial planning rules apply at the time of decision for application before 2007? As a general principle,planning decisions should be based on the best information and most up to date rules and planning documents available. While it might be possible to justify transition policies in some contexts, they should not apply to older applications that have been largely inactive. If the government decides to maintain some sort of transition policies it is suggested that they only apply to applications that were filed within the last two years. 7.If you have had experience with the citizen liaison office, describe what it was like did itmeet your expectations? 8.Was there information you needed but were unable to get? Not applicable 9.Would the above changes support greater citizen participation at the OMB? Yes, because the most effective forum for citizen participation is at the local level in local political processes. Also, the problem being experienced across Ontario is not that citizens are necessarily unable to launch appeals, but rather the fact that too many appeals are being launched altogether. While citizens have effective tools to become involved at the local political level, it is much more difficult for them to become involved at the OMB. Reducing the number of appealable matters will automatically increase the effectiveness of citizens in the planning process. 10.Given that it would be inappropriate for the OMB to provide legal advice to processes would help citizens to participate in mediations and hearings? 11.Are there funding tools the province could explore to enable citizens to retain their own planning experts and lawyers? 12.What kind of financial or other eligibility criteria need to be considered when increasing access to subject matter experts like planners and lawyers? 3 - 5 Members of the community who are not familiar with the OMB would benefit from impartial advice in order to understand the merits of bringing their objections to the OMB. If the government reduces the number of matters that are capable of being appealed to the OMB, so that appeals are far less common than is now the case,it should be possible to create an affordable model where legal aid or intervenor funding might be made available in some cases to litigants in those matters for which appeals are possible. This model would not be practical unless the right of appeal to the OMB is greatly reduced. 13.Qualifications for adjudicators are identified in the job descriptions posted on the OMB website. What additional qualifications and experiences are important for an OMB member? The current qualifications of OMB members are generally worded and many of the qualifications speak to skills that would be an asset in many work environments . The qualifications do not contain any specific academic/professional credentials and quantified work experience. A list of qualifications that aligns or is comparable to the qualifications for justices of the peace is a reasonable standard to expect and could increase public confidence in the appointment process. Justices of the peace must have a university degree and ten years of experience or equivalent (see Appendix B for complete list of qualifications). For OMB members that deal with land use planning disputes it would be reasonable to require that educational, professional or work experience be in one of the many relevant fields (e.g. planning, law, architecture, engineering, environmental sciences, etc.). 14.Do you believe that multi-member panels would increase consistency of decision-making?What should be the make-up of these panels? 15.Are there any types of cases that would not need a multi-member panel? Although there is no evidence that multi-member panels increase effectiveness in decision-making, a multi-member panel may be beneficial in the case of large, complex hearings dealing with disparate areas of expertise. Because multi-member panels would bemore costly to operate,this option should only be considered if there is a substantial reduction in the number of hearings. There would be no advantage in having multi-member panels for non-complex files which account for the majority of matters now before the Board. 16. How can OMB decisions be made easier to understand and be better relayed to the public? It is recommended that decisions be accompanied by a plain language summary or explanatory note. 3 - 6 17Are the timelines in the chart above appropriate, given the nature of appeals to the OMB? What would be appropriate timelines? 18Would the above measures help to modernize OMB hearing procedures and practices? Would they help encourage timely processes and decisions? Question 17 is referring to the following chart. What the chart does not show is the type of files for which 80% of the decisions are issued within 60 days. Is it suspected that the majority of files involving zoning by-laws, official plans and plans of subdivisiondid not achieve the target. More robust targets would be appropriate and should be achievable if the number of hearings and the scope of hearings were severely reduced by other reforms discussed earlier.If this were the case,a target of 100% should be achievable for issuing decisions within 60 days and for the scheduling a hearing within 180 days. As mentioned earlier, appeals to the OMB in respect of minor variance and consent applications should not occur. 19What types of cases/situations would be most appropriate to a written hearing? If the matters for appeal were severely reduced it might not be necessary to explore this option. In any event, written pre-hearings might be appropriate for the purpose of scoping hearings. 20 21What types of cases/situations have a greater chance of settling at mediation? 22Should mediation be required, even if it has the potential to lengthen the process? 3 - 7 Mediation can appear to be an attractive option because it has the potential to reduce costs. If OMB files get settled through mediation there are savings for the Province. However, there is no guarantee of savings for parties/participants and the process is not necessarily shorter in duration. Legal representation and professional services continue to be used for many files that go to mediation.If mediation fails, the file goes back to the OMB for a hearing which further extends the time to arrive at a planning decision. Mediation should be available but should not be imposed. Mediation only works well if all participants are willing participants and accept from the start that the outcome will be a compromise.Some issues do not lend themselves to compromise and it is not Mediation rarely works well if there are multiple parties with disparate positions. Finding a compromise between two parties is already difficult, but if there are three or more parties it becomes even more challenging.Mediation should not be required in these instances. Mediation rarely works well if there is a disparity between the parties/participants inthe level of familiarity with the OMB and financial resources. An individual with modest means who is unfamiliar with the OMB is at a distinct disadvantage if the other party has greater financial resources and is supported by experienced professionals. 23What role should OMB staff play in mediation, pre-screening applications The OMB should play a more active role in screening, dismissing and scoping appeals. If an appeal is found to have merit, the OMB could be more proactive than is currently the case in determining the suitability for mediation by interviewing all parties/participants. Files that are suitable for true mediation should be appointed an impartial mediator. 24.Do you have other comments or points you want to make about the scope and effectiveness of the OMB with regards to its role in land use planning? Generally speaking, under the current system there are too many OMB hearings and many hearings are too expensive and take too long to reach decisions. The standard for appeals should be much higher. Appeals should be specific and appellants should have to demonstrate that they will be able to produce evidence if a hearing is held. A hearing should be held only if evidence will be presented and the hearing should focus on the matters outlined in the appeal. Statutory provisions that enable the OMB to dismiss all or parts of appeals should be strengthened and exercised more often. The burden should be on the appellant to 3 - 8 jIt should not be the responsibility of municipalities to bring forward motions to strike out cases or to prove that a file should not progress. The OMB should be assured that all parties and participants will be adequately prepared and have a reasonable understanding of board practices prior to scheduling a or intervenor funding would need to be in place for some members of the public to participate this way. Many individuals who have not participated on a file become parties at OMB hearings by sheltering broadly worded appeal. In some cases - hearing or shortly before a hearing. hearings involving new official plans and other complex files. The concept of codified. If the Province of Ontario is to have a policy-lead land use planning system as it purports to, it needs to be clear that the OMB will give appropriate weight to provincial policy. If provincial policy is the central issue of a planning dispute, the OMB should obtain a position from the Province prior to assessing the merits of the appeal. Where position should be conclusive. ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN: Many of the reforms proposed in the consultation paper support the Strategic Plan foundation of Efficient and Effective Government. FINANCIAL IMPLICATIONS: There are no budgetary implications at this time. Some of the reforms being contemplated have the potential to reducing operating costs in the future. COMMUNITY ENGAGEMENT: INFORM advance of the council / committee meeting. ACKNOWLEDGED BY: Michael May, Deputy CAO (Community Services) Appendix A - Qualifications for a Member of the of the Ontario Municipal Board Appendix B - Qualifications for a Justice of the Peace in Ontario 3 - 9 A Qualifications for a Member of the Ontario Municipal Board Source:Environment and Land Tribunals webpage http://elto.gov.on.ca/about-elto/position-descriptions/ 3 - 10 B Qualifications for a Justice of the Peace in Ontario 3 - 11