What follows is an analysis of some of the issues surrounding the role of the Ontario Municipal Board (OMB) in local development issues, by Sudbury environmentalist Naomi Grant, and letters to the editor sharing the diverse views of Paula Worton, John Lindsay, and Raymond Jacques, local citizens who are active in the community and have personal experience with the OMB.
Local planning decisions are in the news again. New developments can have a big impact on existing neighbourhoods and on commons like our lakes, and citizens and community groups have been increasingly speaking up. Once City Council has made a decision, that decision can be appealed to the Ontario Municipal Board (OMB), so it is no surprise that the role of the OMB has been part of the public discussion about controversial planning applications.
The OMB is an independent administrative board, operated as an adjudicative tribunal. It hears appeals on planning disputes in Ontario. According to the official website, “Decisions are based on the evidence presented at the hearing, the relevant law, provincial polices and the principles of good planning.”
There are widespread and long standing criticisms of the OMB. At the root is a perceived bias in favour of development, and a feeling that decisions of locally elected governments should not be overturned by a non-elected body with no connection to local context..
In their spring 2012 Queen’s Park Update, Federation of Urban Neighbourhoods (a province-wide umbrella organization of community and neighbourhood associations), stated:
“Many residents associations are dismayed by Council decisions being appealed to the Ontario Municipal Board (OMB), and subsequent OMB decisions seeming to favour intensification, regardless of the suitability of the location, and at the expense of other, equally valid, planning concerns. …F.U.N. has continued to urge the Ontario government to consider reform.”
Whether or not there is any overt bias, there is no question that there is a practical bias in favour of developers and municipalities over citizens and community groups. This arises from basic inequities in familiarity and resources. In most cases, citizens reacting to a planning application of concern are not familiar with the planning process. Under a tight timeline, they not only need to prepare their case, but also try to learn the rules of engagement . By contrast, city planners and the developer have already spent considerable time going over the planning application and supporting material. The city, and in most cases the developer, are familiar with the process, and have resources that include experienced lawyers and planners.
Having experts on your side is not just about being able to build a better case. The OMB weights evidence based on who is speaking, according to their relevant expertise, as assessed by the OMB. The uncontested professional opinion of an expert will carry the day. In addition to a planner, experts may be needed to speak to environmental assessments, traffic reports, and other technical studies. Hiring the required experts for an OMB hearing can cost tens or hundreds of thousands of dollars.
This cost is beyond the means of most groups, especially one that has hastily formed in reaction to a specific development. Many will choose not to take their concerns to the OMB. An additional reason for this is fear of reprisal, or a SLAPP (strategic lawsuit against public participation ). Federation of Urban Neighbourhoods state, “ SLAPPs use the court system to limit the effectiveness of the opposing party’s speech or conduct. SLAPPs can intimidate opponents, deplete their resources, reduce their ability to participate in public affairs and deter others from participating in discussion on matters of public interest”. This tactic has been known to be used in Greater Sudbury.
The environment is also perceived as being at a disadvantage when it comes to the OMB. Ontario Nature has noted variation in understanding and attitude toward natural heritage among OMB hearing officers, which leads to unpredictable results. A review done in 2008 (1) found that appeals in support of natural heritage had a 30% success rate from 1996 – 2003, and a 50% success rate from 2004 – 2008. This increase is likely partly due to stronger language in the 2005 Provincial Policy Statement. Further improvements to policy that strengthen environmental protection, support decisions based on current science, use the precautionary principle, and prioritize human and ecological health would likely cause these numbers to rise further. However, for the reasons noted above, many concerns never make it to the OMB. The review found that 81% of appeals brought to the OMB were pro-development versus 19% in support of natural heritage.
Public input is a mandated part of planning decisions which are made by locally elected councillors. This allows local interests and knowledge to be incorporated into planning decisions, within the boundaries of planning policies in the Official Plan and Provincial Policy Statement. By contrast, OMB hearings do not have any public input component, beyond the opportunity for citizens to participate formally in the hearing. This has led some to call the OMB “anti-democratic” because it overturns decisions by locally elected representatives. However, others note that it is essential to have an appeal process when ‘bad’ Council decisions are made, and that the OMB is the only such appeal mechanism available. Developers also value the ability to appeal Council decisions, citing the need for certainty that if they follow the planning rules, they will be able to proceed with their planned development.
Councillor Dave Kilgour, chair of the Planning Committee, has said that although planning decisions do need to be guided by policy, they also must take into account the will of the people. In fact, if planning decisions were simply a matter of following set rules, they would not be made by elected representatives. Although some planning decisions can easily be categorized as good or bad planning, many balance opposing planning principles. Where the right balance falls is an important civic dialogue.
However, some observers have accused city councils of using the OMB politically. In a June 2012 Sudbury Star editorial, Brian MacLeod wrote: “City council must avoid the temptation to use the OMB as an out, taking the politically popular route of acquiescing to area residents' demands, and letting the OMB essentially make development policy.” On the other hand, Planning Committee members have cited worry over a decision going to the OMB to explain their vote on a planning application.
The many concerns about the OMB have led to calls for it to be reformed or even abolished. However, it is currently the only appeal mechanism available when it comes to planning decisions. Not surprisingly, there are a range of opinions on the OMB among engaged citizens. Here are letters from three thoughtful Sudburians who have all had first hand experience with the OMB.
1. “The Application of Natural Heritage Policies and Legislation by the Ontario Municipal Board January 2004-January 2008” (2008) Research and Report by Elke Meyfarth O’Hara School of Planning University of Waterloo
Prepared for the Environmental Commissioner of Ontario
Abolish the OMB
N.B. This letter was previously published as a letter to the editor
The Ontario Municipal Board (OMB) has outlived its usefulness. The OMB was created in 1897 to supervise account keeping by municipalities. Later, it helped decide where rails would traverse municipalities.
The purpose of the OMB today is to resolve appeals on a wide range of municipal and land-related matters. The board's jurisdiction is drawn from a large number of acts, especially the Planning Act. As the city's Official Plan and the Provincial Policy Statement are not acts but guidelines, the OMB does not have to consider these documents with the same weight as legislation.
The OMB needs to be abolished as the process is flawed. Energy should be spent at the start of the planning process. Municipal staff, the developer and interested citizens should be where the initial discussion begins, not at the OMB.
Some planners have a goal of not going to the OMB. If planners approve a developer's proposal to avoid going to the OMB, then the system is flawed. If the OMB adjudicator only gives credit to "planning experts" under the Planning Act and does not give credence to the statements made by other experts, then the system is flawed.
Citizens know their neighbourhoods and communities better than municipal planners. For the quasi-judicial tribunal of the OMB to make a decision in isolation of the neighbourhood is flawed.
There should be no challenges to Official Plan policies. Resolving an appeal based primarily on a sole piece of legislation is a flawed process.
The municipality should be required to make a decision before the matter goes to the OMB. The municipality needs to consider outcomes of consultation and give some weight to the opinions of voters. Any process that allows elected officials to abdicate their responsibility for making a decision to an outside body is flawed.
The OMB must be abolished because it favours the rich and discriminates against the poor. Some people are paid to participate in the OMB process because it is their job, while often unpaid community activists try to do what they think is in their community's best interests. Lawyers who are paid for services appear to be given credence by the OMB, while pro-bono lawyers for the community are given little consideration.
The OMB process is flawed as it sets a "win-lose" scenario underlined with the threat of assigning costs to the "loser". This does nothing to facilitate a democratic process where all parties can confer and arrive at a mutually satisfactory solution.
Such a tribunal could be composed of local developers, municipal representatives and citizens for a more holistic approach to city planning. Such a process may prove to be less expensive in time and money, more democratic and an improved way to build our city.
Paula Worton was a key member of Citizens for the Preservation of Nepahwin/Lily Creek Wetlands who appealed two developments approved on the Nepahwin/Lily Creek Wetlands. The OMB ruled against both appeals.
Reform the OMB
N.B. This letter was written in response to Paula Worton’s letter nad was published as a letter to the editor
I am confident that any citizen who has had experience going before the Ontario Municipal Board at a hearing would agree with Paula Worton’s position that the body should be abolished as she states the system is flawed in that it does favor the rich and discriminates against those who cannot afford the high priced lawyers and experts that the board generally only gives credence. However, the OMB is currently the only avenue that ordinary residents have to address what they consider often flawed decisions made by staff and council without adequate and informed citizen input. Appeals to the OMB could largely be eliminated if the community was formally involved earlier in local decision making with respect to those matters most often appealed. The Minnow Lake Community Action Network has made this specific recommendation to the city of Greater Sudbury Official Plan Review now taking place.
Community Notification of Development Proposals and Participation in Process:
That the general public (citizens and residents) be informed of any development applications through local Community Action Group(s) in those wards where the development is to take place, and that these organizations be invited to contribute to the creation of the staff planning document to go before the Planning Committee. This is in consideration of City Council’s stated “terms of engagement” with respect to Community Action Networks to “promote democracy and inclusiveness by giving participants (Community Council, City Staff) a unique vehicle to work in harmony towards common goals” and to “enhance the overall quality of life in Greater Sudbury in social, environmental and economic sectors” The CAN is also to “represent the broad interests of the community or neighbourhood represented and to be open and transparent and to encourage participation from all residents“ Also other relevant community groups such as Lake Stewardship committees should be invited to participate in the planning document process.
John Lindsay is the Chair of the Minnow Lake Community Action Network. He has initiated numerous appeals to the OMB, none successful.
N.B. This letter was written in response to Brian MacLEod’s editorial on the OMB, but was never published.
Dear Mr Macleod,
In your article about the need for the OMB, you make certain assumptions.
1-that staff "always" act as expert professionals, that follow ALL the requirements of the Official Plan
2-that powerful Developers "always" put forth projects that are a "proper" balance between the best interests of the people and their own interests.
3-that Councillors "always" understand and follow the Official Plan
4-that Citizens and their representatives "always" have had access to FULL and RESPECTFUL consultations with the Planning staff
You also assume, that Citizens "always" do not know what they are talking about.
And that their "protests" requests are "always" unfounded.
In reality, sometimes, the People are right, and the Experts and/or Developers are wrong.
That is why the OMB should stay as a last recourse for the People.
Why don't you meet with us and various other citizen representatives, like John Lindsay, and challenge us to prove our points.
We, also, represent the hundreds of Taxpayers in our Neighbourhood. They, also, would like their opinions heard and debated. We may not be as organized as the one in the news, but have worked hard to faithfully put forward the desires, of our Neighbourhood, for a better City.
Raymond Jacques is involved in a current appeal to the OMB by Friends of Bennett Lake, regarding the approved development’s impact on this sensitive lake.