CITY CLERK. Report on a Review of Ontario Municipal Board Decisions

Transcription

1 CITY CLERK Clause embodied in Report No. 6 of the, as adopted by the Council of the City of Toronto at its meeting held on May 21, 22 and 23, Report on a Review of Ontario Municipal Board Decisions (City Council on May 21, 22 and 23, 2002, adopted this Clause, without amendment.) The recommends that the report (March 7, 2002) from the Commissioner of Urban Development Services be adopted subject to: (1) amending Recommendation (1) by adding the words without compromising the right to public input and community consultation ; (2) amending Recommendation (2) by adding the words and/or, the procedures be amended to require the applicant to negotiate a specific time for each application at the time the application is filed with a 180 day fail safe provision, and that this timeframe be subject to amendment by mutual consent with the Ontario Municipal Board being requested to mediate if necessary; ; (3) amending Recommendation (3) by adding the words based upon the type of application being made, e.g.: Official Plan Amendments, Zoning By-law Amendments, and applications which may trigger the development of new Secondary Plans, after the words processing timeframes ; (4) amending Recommendation (4) by adding the words or a specialised branch within the OMB after the words Local Appeal Board and ensuring that community input is provided to the Local Appeal Board; (5) adding additional Recommendations (5) to (7), so that the recommendations of the report now read: (1) the Commissioner of Urban Development Services continue streamlining the development approval process as part of her ongoing Business Process Review without compromising the right to public input and community consultation; (2) City Council request that the Ontario Municipal Board amend its procedures in dealing with 90-day appeals under Section 34(11) and Section 17(40) of the Planning Act, to allow the City an opportunity to satisfactorily complete its development approval process, as outlined in this report, and/or, the procedures be amended to require the applicant to negotiate a specific time for each application at the time the application is filed with a 180 day fail safe

2 2 provision, and that this timeframe be subject to amendment by mutual consent with the Ontario Municipal Board being requested to mediate if necessary; (3) City Council request the Province to consider amendments to the Planning Act to establish more realistic processing timeframes based upon the type of application being made, e.g: Official Plan Amendments, Zoning By-law Amendments, and applications which may trigger the development of new Secondary Plans, and that OMB hearings be treated solely as appeals rather than hearings de novo ; and (4) City Council give consideration to establishing a Local Appeal Board, or a specialised branch within the OMB at which community input would be assured, to deal with planning application appeals in the City of Toronto, and that a delegation of City Council members together with the Commissioner of Urban Development Services and the City Solicitor be given authority to meet with the appropriate officials at the Province to explore this idea further; (5) OMB members be provided with clearer guidelines, better training and a direction that they limit their findings to planning matters and leave judicial decisions to the Courts; (6) the OMB be encouraged to adopt a pre-hearing policy to determine if matters can be mediated or sent back to Council for further consideration; (7) the City of Toronto work co-operatively with the Association of Municipalities of Ontario in this regard. The reports having: (1) referred the following motion to the Commissioner of Urban Development Services for review and report back to the : That the Provincial Government be requested to review provincial policy statements to reduce ambiguity. ; and (2) referred the matter of signage to the Commissioner of Urban Development Services with a request that she consider incorporating a mandatory trigger point at which signage must be removed from properties and that such signage include notification of appeals, and report further to the. The submits the following report (March 7, 2002) from the Commissioner of Urban Development Services: Purpose: This report conveys the findings of a review of Ontario Municipal Board decisions and makes recommendations to improve the planning process.

3 3 Financial Implications and Impact Statement: There are no financial implications resulting from the adoption of this report. Recommendations: It is recommended that: (1) the Commissioner of Urban Development Services continue streamlining the development approval process as part of her ongoing Business Process Review; (2) City Council request that the Ontario Municipal Board amend its procedures in dealing with 90-day appeals under Section 34(11) and Section 17(40) of the Planning Act, to allow the City an opportunity to satisfactorily complete its development approval process, as outlined in this report; (3) City Council request the Province to consider amendments to the Planning Act to establish more realistic processing timeframes and that OMB hearings be treated solely as appeals rather than hearings de novo ; and (4) City Council give consideration to establishing a Local Appeal Board to deal with planning application appeals in the City of Toronto, and that a delegation of City Council members together with the Commissioner of Urban Development Services and the City Solicitor be given authority to meet with the appropriate officials at the Province to explore this idea further. Executive Summary A growing perception in the greater Toronto area is that local planning autonomy and the integrity of the local planning process have been compromised by the Ontario Municipal Board (OMB) rendering decisions which overturn an adopted Council position. A general cursory review of the Ontario Municipal Board decisions for the years 1999, 2000 and 2001 was undertaken by staff. The number of OMB decisions made on appeals of Council decisions on Official Plan and Zoning By-law Amendments and Interim Control By-laws are minor. On appeals of applications where City Council failed to make a decision within 90 days the City was successful 21%, settled 43 % and lost 36 % of the appeals. Realizing the qualitative importance of these decisions, the City should initiate revisions to its process for avoiding 90-day appeals to the OMB by continuing to streamline the development approval process. This report also recommends changes to the 90-day appeal procedure that allow the City an opportunity to fully complete its development approval process, including action that requires leadership by the OMB and possible changes to the Planning Act to recognize Council's demanding workload.

4 4 City Council and staff spend considerable time evaluating the merits of development applications that focus on local community impacts, with area residents providing invaluable local input. The entire process is often repeated over again before the Ontario Municipal Board, a provincially appointed quasi-judicial administrative tribunal. Recognizing that planning matters are local, City Council should request the Province consider the establishment of a Local Appeal Board. Background: City Council at its meeting of October 2, 3 and 4, 2001 adopted Clause 20 of Report 7 of North York Community Council entitled Report Requesting Decisions made by the Ontario Municipal Board. The North York Community Council reports, for the information of Council, having endorsed the following motion moved by Councillor Feldman. That the Commissioner of Urban Development Services and the City Solicitor be requested to submit a report to the which addresses the City s concern with respect to the increasing number of planning decisions which appear to be made by the Ontario Municipal Board rather than City Council; and advise on the appropriate steps that can be taken to more effectively have planning decisions made at the local level. The Ontario Municipal Board (OMB) is made up of 27 members appointed by the Province for a three-year term. The Board has the power to overturn the decisions of any municipality on land-use matters and its decisions are usually final. As an independent, quasi-judicial administrative tribunal, the OMB s principal function is to resolve appeals from decisions made by Ontario municipalities or other decision-makers. The Ontario Municipal Board can trace its origin back to 1897 when the Office of the Provincial Municipal Auditor was established to supervise account keeping by municipalities. In 1906 the Ontario Railway and Municipal Board was created. That Board was responsible for supervising the mode of transport between and within municipalities. In 1932 the Ontario Railway and Municipal Board was renamed the Ontario Municipal Board. The Board now obtains its jurisdiction from approximately 180 statutes. Most of its work arises from the Planning Act. Over the years the powers given to the Board have been greatly expanded by ensuing legislation of all types and the hearings have become more formal involving lawyers and expert witnesses. Other significant matters within the Board s jurisdiction include land compensation matters, development charges and the determination of ward boundaries within municipalities. The office of the City Solicitor has been consulted in the preparation of this report. (1) Council Decisions Overturned by OMB A general review of the Ontario Municipal Board decisions for the years 1999, 2000 and 2001 was undertaken by staff, and the table below indicates, for the past 3 years, the number of OMB decisions based on appeals made with respect to the enactment of by-laws for Official Plan Amendments, Zoning By-law Amendments and Interim Control By-laws. For the purpose of this

5 5 review, the number of decisions won by the City means OMB decisions where City Council decisions were upheld and the number of losses means where City Council decisions were not upheld. Table 1 Decisions of Council and Decisions of the OMB on Official Plan Amendments, Rezoning and Interim Control By-laws for 1999, 2000 and 2001 Number of Council Decisions* on OPA, Rezoning Proposals and Interim Control By-laws TOTAL Number of OMB Decisions on Council Enacted By-laws Number of Decisions Won by the City Number of Decisions Lost by the City * for the purpose of this review a Council Decision includes both the by-law to enact an OPA and the by-law for the Zoning Amendment for a specific site. While these appeals deal with the resolution of important planning matters, the OMB decisions (41) that were rendered is minor in number, relative to the 424 decisions made on by-laws enacted by City Council during this same three year period. (2) 90-day Appeals on Council Refusals or Failure to Enact By-law In those circumstances where the applicant appeals to the OMB when the City neglects to make a decision on an Official Plan and/or Zoning By-law Amendment application within 90 days, the City was successful 21%, settled 43 %, and lost 36% of the appeals within the last three years. Section 17(40) and Section 34(11) of the Planning Act allow for an applicant to appeal to the OMB if the City has not made a decision on an Official Plan and/or Zoning By-law Amendment application within 90 days. The following table indicates the number of applications the City has received for Official Plan and Zoning By-law Amendments and the number of OMB decisions on appeals under Section 17(40) and Section 34(11) of the Planning Act for 1999, 2000 and Table 2 Number of OMB Decisions Appealed Under the 90 Day Provision for 1999, 2000 and 2001 Number of OMB Decisions on Appeals of Applications under the 90 days Number of OMB Decisions of 90-day Appeals Won by the City Number of OMB Decisions of 90- day Appeals Lost by the City Number of OMB Decisions on 90-day Appeals that were Settlements TOTAL

6 6 In dealing with these 90-day appeals, City staff must evaluate the planning merits of the proposal, seek public input and address all technical matters prior to Council putting forward its position on the matters before the OMB. The accelerated time frame to complete this work also requires staff to meet the deadlines for Committee and Council meeting cycles and limits the opportunities for Council s input on the proposal. The City has not been as successful with applications that have been appealed with the 90-day appeal compared to those cases where Council has made a decision. For example, in 2001, the City lost 10 decisions at the OMB and won only 4. In those cases, where Council made the decision on the application and those decisions were subsequently appealed to the OMB, the City won all 15 cases. In addition, recent administration changes at the OMB and a lighter case load have enabled the applicant to secure an earlier hearing date than in the past, some of which could be within 90 days after the applicant has appealed to the OMB. With the OMB improving its scheduling of hearing dates, City Council and staff are faced with ever increasing challenges to meet the Committee/Council deadlines to seek City Council s directions. (3) Issues (a) Democratic Authority of City Council There is a growing perception that local planning autonomy and the integrity of the local planning process have been compromised by the OMB rendering decisions which overturn an adopted City Council position. Why is the OMB allowed to overturn the decisions of elected municipal councils? Why would the province create a Board that can overturn the decisions of elected municipal councils? The OMB s publication, called A Manner Less Rigid, 100 years of the Ontario Municipal Board by Robert Shipley states: the Board s authority has been retained, based on the perceived need for an independent appellate body to ensure that local politicians follow their own stated policies, that the greater public good be protected from bad decisions made under political pressure and above all, that the rights of the individual be protected from majority rule. In the recent Division Court Decision on Official Plan Amendment 2 (OPA 2) it is noted that the Supreme Court of Canada in a decision on Spraytech v. Town of Hudson, supra, rendered on June 28, 2001, established in the clearest of terms that local governments, as being at the closest to affected citizens, should be given recognition in their enactments. At paragraph [3], Justice L Heureaux-Dube said as follows: [3] The case arises in an era in which matters of governance are often examined through the lens of the principle of subsidiarity. This is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and population diversity

7 7 Clearly the issue for City Council is the OMB's power to overturn Council s decisions on local planning matters resulting in the erosion of City Council s democratic authority. When there is not a clearly defined provincial interest to be settled by the OMB, there should be a less expensive and more efficient local solutions, protecting the rights of natural justice and individual property rights than provincially appointed administrative tribunal. In both British Colombia and Alberta, the planning decisions made by the Vancouver, Edmonton and Calgary City Councils are final and cannot be appealed to a provincial authority to resolve disputes on planning merits. Such decisions may be referred to the courts on legal matters such as procedural irregularities. Both Edmonton and Calgary City Councils make all decisions on city-wide land use policy matters and rezoning applications, however, decisions on matters related to the division of land, development requirements, such as landscaping, works and engineering standards are delegated to administrative staff. For applicants who wish to dispute the City s decisions on development standards and requirements, a local appeal board, appointed by City Council, hears the arguments from the affected parties and makes a final decision. On significant land use issues, including rezoning applications and city-wide policy matters, citizen review panels and/or local standing committees may review the proposals prior to final consideration by City Council. In this decision-making structure City Council is the final arbiter on land use policy and zoning matters and requires Council to deal with problematic issues with a clear expectation that such applications and policy matters cannot be appealed. (b) Lengthy Development Approval Process The current planning process for Official Plan and Rezoning applications can be a lengthy process, that involves the circulation of the application to a number of City departments and agencies for technical review, the holding of community consultation meetings, and a statutory public meeting. The timelines can be anywhere from 6 months to 18 months depending on the complexity of the application and longer if matters are referred to other standing committees. (c) Provincial Interest The Planning Act requires Council to have regard for a broad range of topics that include the protection of ecological systems, including natural area features; the appropriate location of growth; and the adequate provision of a full range of housing. City Council in turn sets out policies in its Official Plan, that satisfy the Planning Act requirements to have regard for provincial interests, as well as locally generated policies that have regard for matters of local interest. City staff and City Council spend considerable time evaluating the merits of a development application, including rezoning and Official Plan amendments, that focuses on local community impacts, such as traffic, urban design and site servicing. Area residents provide invaluable local input in shaping Council s decision and, in the end, the entire process could be repeated de novo or all over again before the OMB.

8 8 What is the provincial interest with respect to a minor zoning modification made by the Committee of Adjustment to a single detached house for a rear addition? What is the provincial interest in a rezoning application that conforms with the City s Official Plan and is implementing a mixed-use building on one of Toronto s main streets? What is the provincial interest in a Secondary Plan that guides change to help shape the future of a neighbourhood? Given the overwhelming local nature of planning, it is difficult to understand why these matters would be decided by a provincially appointed Board. In processing an Official Plan Amendment application or preparing a Secondary Plan, the Planning Act requires the City to have regard to the matters of provincial interest, as noted above. The City currently circulates to the Province the draft Official Plan Amendment twenty days prior to the statutory public meeting. If the Province determines that it has an interest, it has its own remedies, including referral of the matter to the OMB. The Provincial government defines and articulates its interest through an adopted Policy Statement. The presumption which should be made by the City is that an approved official plan policy has had proper and due regard for provincial interests. The presumption should also be that in those cases where there is a proposed amendment to the official plan, the current consultation process with the Provincial ministry is adequate to inform and protect the provincial interest. The current process results in a provincially appointed administrative tribunal evaluating local planning matters that are often singularly limited to a particular street or city block. A more local solution to protect rights of natural justice and a fair hearing process should be pursued (4) Options Addressing the issues outlined in this report will require discussions with Provincial officials. In the meantime, Council should consider the following options as initial steps in moving towards a more satisfactory resolution. (a) Modifications to the OMB process regarding the 90-day appeal provisions On February 25, the Ontario Professional Planners Institute (OPPI) presented a paper on the Role and Function of the Ontario Municipal Board in the land use planning process. The paper focused primarily on administrative matters related to the OMB. The paper included a recommendation for a specific case management screening process for appeals based on the municipality s failure to meet the 90-day provision. The paper noted that the purpose of the case management stream is not to specifically expedite or delay the 90-day appeals, but to balance the interest of the public and private stakeholders in such matters. The revised process recommended that: (i) the Board should schedule a pre-hearing conference to ascertain whether the developer has submitted all appropriate studies and the municipality s anticipated time requirements to conduct a full technical and public review.

9 9 (ii) the Board should then establish a specific timetable for the hearing and, where required, further pre-hearing processes. The timetable would allow for submission of all materials to the municipality and would also direct the municipality to complete its technical review process in order for the hearing to go forward. The principle of allowing a municipality to complete its review within a reasonable timeframe is maintained and a fair hearing can proceed and provide an opportunity for all stakeholders, including the public at large, to comment on the matter. The OPPI has made a fair and reasonable request for the OMB to consider, and it is recommended that the City endorse their recommendation. This revised process will move to address a recent practice at the OMB where City staff are being asked to review revised plans and studies within the day of the hearing or as the staff person is in the witness box. The OMB practice of encouraging that issues be focused and scoped at the time of a hearing could benefit through greater leadership by Board members to ensure that all available resources are engaged to achieve a focused hearing. This report recommends that Council request that the OMB to amend its procedures in dealing with the 90-day provisions under Section 34(11) and Section 17(40) of the Planning Act, so as to allow the City to satisfactorily complete its development approval process as outlined above. (b) Streamline Development Approval Process The current planning approval process can be lengthy and complex. In order to streamline the process, the review of minor Official Plan and/or Rezoning applications needs to be shortened. The Commissioner of Urban Development Services, together with the Commissioners of Works and Emergency Services and Economic Development, Culture and Tourism, is leading an extensive Business Process Review of the development approval process. All steps in the process are being reviewed, and changes such as standardized reports, application forms, notice for meetings and other forms; better front counter service; case management of applications, where staff are assigned responsibility for carrying projects from initial applications through to release of building permits, have already been implemented. Further changes, such as harmonized review practices for zoning by-law amendments, site plan and subdivision applications and the establishment of inter-department staff teams to sort and review development applications according to an established criteria, will be implemented over the next six months. (c) Changes to the Planning Act In 2002, City Council and Community Councils will meet 9 times. The new City has a demanding workload to carry out the work of what previously was the responsibility of seven separate municipal Councils and the efficiency expected from the 90 day appeal provision of the Planning Act is not realistic within the current Committee meeting cycle of Council. The structure of the current Planning Act contributes to the impression that the OMB is making local planning decisions. Consideration could be given to amendments to the Planning Act so that City Council's decisions are paramount.

10 10 Some of the proposed changes could include: (i) (ii) (d) Some of the applications processed by the City are large and extremely complex requiring a sophisticated level of technical review. It is difficult, if not impossible, to review and process complex applications within the 90-day timeframe required by the Act even in ideal circumstances. The Act could be amended to provide for a more realistic processing timeframe. The structure of the Planning Act and case law provide that the hearing is de novo before the OMB. There is no recognition that the decision of Council represents the public interest as the level of government being closest to the affected citizens. Legislative changes could be made so that an appeal from a Council decision is an actual appeal not just a new hearing by changing the onus. Thus, the party opposing Council's decision must show that Council's decision was unreasonable or unsupportable in the circumstances. Other legislative changes could limit the scope of the hearing in other ways. Local Appeal Board Given the experience elsewhere in Canada, it would seem logical for City Council to make the final determination on local planning matters. However, in recognition of the long tradition in Ontario for an appeal body, consideration should be given to maintaining an appeal process. The establishment of a Local Appeal Board for Official Plan Amendments, Rezonings, Site Plan Approval, Committee of Adjustment applications, and Secondary Plans and Interim Control Bylaws, could be an important first step. The Local Appeal Board would consist of people who live in the city, are familiar with their community s planning issues and local cultural traditions. The emphasis of the Local Appeal Board would be directed to local planning matters. This report recommends that consideration be given to setting up a Local Appeal Board to deal with all local planning application appeals. City Council should send a delegation of City Council members, together with the Commissioner of Urban Development Services and the City Solicitor to meet with the Province to discuss this proposal. The creation of a Local Appeal Board would help reduce the workload of the OMB, since a significant portion of its work arises from Planning Act matters in the City of Toronto. The OMB would still deal with matters related to expropriation/land compensation, development charges and ward boundaries in the City of Toronto. (5) Other Considerations Bill 161 MPP Michael Colle tabled Bill 161 An Act to restore local control over planning by involving citizens and ensuring decisions are made by democratically elected officials This Act would have the government consider abolishing the Ontario Municipal Board. This bill has received First Reading on December 12, 2001.

11 11 Conclusions: The 90-day appeal provision in the Planning Act has resulted in the City losing 26 decisions at the OMB in the last three years. This report recommends options for Council to consider to reduce the processing time of development applications. These include continuing the work on streamlining the processing of development applications to reduce the number of 90-day appeals. This report also recommends the Ontario Municipal Board amend its procedures in dealing with appeals launched under the 90-day provision under Section 17(40) and Section 34(11) of the Planning Act and further recommends that the Province give consideration to the establishment of a local Appeal Board to deal with all planning matters in the City of Toronto. Contact: Tom Keefe, Manager, Community Planning, North District Telephone: ; Fax: ; tkeefe@city.toronto.on.ca Extract of Clause 20 embodied in Report No. 7 of the North York Community Council, entitled Other Items Considered by the City Council, which was before the Council of the City of Toronto at its meeting held on October 2, 3, and 4, (City Council on October 2, 3 and 4, 2001, received this Clause, for information.) (n) Report Request Respecting Decisions made by The Ontario Municipal Board. The North York Community Council reports, for the information of Council, having endorsed the following motion: Moved by: Councillor Feldman THAT the Commissioner of Urban Development Services and the City Solicitor be requested to submit a report to the which addresses the City s concern with respect to the increasing number of planning decisions which appear to be made by the Ontario Municipal Board rather than City Council; and advise on the appropriate steps that can be taken to more effectively have planning decisions made at the local level. The also submits the following communication (January 30, 2002) from the City Clerk, Midtown Community Council: Recommendations: The Midtown Community Council referred the following motion to the Planning and Transportation Committee for consideration:

12 12 It is recommended that the Mayor, on behalf of, send a letter to the Minister of Municipal Affairs and Housing requesting that the Province abolish the OMB or make substantive changes to the OMB to reflect the democratic underpinnings of our society. The Midtown Community Council recommended to City Council, for its meeting on February 13, 2002, that the City Solicitor be directed to attend the OMB and request that the OMB adjourn the pre-hearing conference scheduled for February 27, 2002 in order that City Council may complete its review of and take a position on the appeals by Minto YE. Background: The Midtown Community Council, at its meeting on January 29, 2002, had before it the attached communication (January 24, 2002) from Councillor Michael Walker with respect to an appeal to the OMB by Minto YE Inc. regarding 2195 Yonge Street. The Midtown Community Council also had before it a report (January 28, 2002) from the Director, Community Planning, South District, providing a status report on an appeal by Minto YE Inc. for 2195 Yonge Street and notice of staff s intention to submit a Refusal Report to the February 25 th meeting of Midtown Community Council. The also had before it the following communications appended to the communication (January 30, 2002) from the City Clerk and copies thereof are on file in the office of the City Clerk, City Hall: - (January 28, 2002) from Councillor Michael Walker seeking Council's approval to send representation to the Ontario Municipal Board regarding the above-noted appeal; - (January 16, 2002) from the Federation of North Toronto Residents' Associations (FoNTRA) submitting comments in response to the Minto application for the re-zoning of 2195 Yonge Street; and - (January 28, 2002) from the Director, Community Planning, South District providing a status report on an appeal by Minto YE Inc. for 2195 Yonge Street and notice of Staff's intention to submit a Refusal Report to the February 25th meeting of Midtown Community Council and recommending that this report be received for information. (Newspaper article appended to the foregoing communication from the City Clerk is on file in the office of the City Clerk, City Hall). (City Council on May 21, 22 and 23, 2002, had before it, during consideration of the foregoing Clause, a communication (May 16, 2002) from the Office of the City Clerk, City of Mississauga, forwarding Resolution which was adopted by Mississauga Council at its meeting held on May 8, 2002, wherein the Government of Ontario is requested to review the role of the Ontario Municipal Board, the Planning Act and the Ontario Municipal Board Act.)