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THE PERSPECTIVE OF RATEPAYERS GROUPS ON ONTARIO’S PLANNING PROCESS.
Samantha T. Solomon
Student No. 912 493 094
December 10, 2007
INTRODUCTION AND FORWARD
It all comes down to whether you believe in the “competent and committed bureaucracy” or a full public participatory regime of individual rights.[1] Ontario has generally adopted the latter, as advocated by the McCray commission in 1964. This has lead to the Judicial Review Procedure Act, a statute, which has stood the test of time and has vested the rights of the individual in many government bodies termed judicial/quasi judicial tribunals.[2] It is these tribunals, and primarily the Ontario Municipal Board (OMB),[3] that ratepayer groups will encounter in a planning dispute with a developer or public body. The OMB has a broad dominion in balancing the competing interests of the parties. In addition to traditional planning issues such as, determining whether a proposed floor space index (fsi)[4] is consistent with an official plan or zoning by-law, the enquiry can encompass consideration of Charter rights and social issues between parties that are commercial corporations that are not matters that one would associate with a land use dispute.[5] The triumph of individual property rights in planning disputes is reflected in the common law, “a man’s home is his castle”.[6] For this reason, the deck is stacked against the ratepayers groups, both when they are allied with their elected representatives and especially so when they are not.
In this paper, stakeholders refer to developers, ratepayers and Councils. Ratepayers refer to one or more persons who do not have a direct financial stake in a proposal but who will be impacted by the proposal due to physical proximity or feel the project will impact a social good. Examples of a social good include, protection of the environment, affordable housing or otherwise.
In the summer of 2004, many citizens’ groups made their views known in the consultations over Bill 26, The Strong Communities Act. This Act proposed government reforms to planning and the OMB. These submissions were also heard in the government’s consultations on Bill 51, The Planning and Conservation Land Statute Law Amendment Act, 2006 and the summer 2007, call of the OMB for input into its Rules of Practice. The submissions of stakeholder representatives such as the Urban Development Institute, the Canadian Environmental Law Association, Association of Municipal Managers, Clerks and Treasurers of Ontario, Greater Toronto Homebuilders Association, Preservation of Agricultural Lands Society, Pembina Institute for Appropriate Development, Federation of Ontario Naturalists and groups of Municipal Councils have proved invaluable to this paper.
This paper attempts to identify additional changes that need to be pursued after the latest round of legislative amendments. In addition this paper looks at some of the obstacles facing these groups after reviewing case law, submissions of OMB stakeholders and interviews with the heads of ratepayers groups[7]. While some reforms (like intervener funding) may be politically dead, many improvements (like online OMB transcripts, or better municipal notice of applications) are within reach of ratepayer lobbying efforts. A brief summary of the critiques of the current system by stakeholders is also presented for background and context. As one might expect, it is easier to find stakeholder critiques of the legislation and the OMB than it is for the stakeholders to critique each other. The government consultations did not yield a “top ten” list of things developers, councils and ratepayers dislike about the others. Ratepayer executives will describe developers as connected, deep pocketed landowners with no desire or incentive to compromise that will count down the number of days to their statutory right to appeal, even as you are talking to them. Ratepayers groups take an extreme position when talking about planning reforms.
THE NEED FOR AN ONTARIO MUNICIPAL BOARD
There have been many eloquent calls to disband an undemocratic, rights based OMB in favour of elected representatives guided by public will and sophisticated planning staffs. John Chipman did his doctoral thesis in the operation of the OMB and wrote:
“My conclusion is that, with respect to its appellate planning jurisdiction, the OMB has become a “tribunal out of time”. It bases it’s decisions largely on considerations of impact than can be equally well made by municipal councils, and, if planning is accepted as a political process, should be made by locally elected bodies.” [8]
David Townley, president of the South Rosedale Ratepayers Association stated the OMB should only have appellate jurisdiction on matters of law, and then only on matters of provincial interest as determined by a government body, or where an agency determines the Planning Act or a law has been breached.[9] This would align the OMB with its counterparts in other provinces.[10] The lack of public respect for the OMB is greatest in Toronto. Philip Preville states that,
“Given that the OMB has usurped the city’s most basic function, it’s perhaps logical that Toronto has left its planning department to rot. For land-use decisions, city hall has accepted its demotion from judge to appellant”.[11]
The OMB has been around since 1897.[12] Aside from a lack of political will to disband it, the OMB takes the heat off local politicians who know their decisions are subject to the review of an independent provincial tribunal. More fundamental to the need for an OMB is that in contrast to compensation for expropriation, the landowner has no recourse when the value of their holdings are slashed by restrictive by-laws. It has been held that the public good overrides the private interest[13] and that absent bad faith, a developer can not sue a municipality over a by law.[14] The province has also engaged in this theft on a grand scale, in the form of the Ontario Parkway Belt and Oak Ridges Moraine. As was noted by Sam Robinson in his article, “The Rise and Fall of the Ontario Parkway Belt”,[15] massive down zoning led to hundreds of exemption requests. The Province further reneged on its promise to compensate the affected municipalities for the erosion of their tax base. The exemptions and appeals were so numerous, the only remnants of the parkway belt in the Toronto area are the narrow strip of land beside Highway 407. Basically, the OMB is too busy to disappear. Mr. Robinson notes that in a level playing field (the municipality as a player, not a regulator), councils would have to buy rather than legislate land use restrictions and balance restrictions in one area with increased densities in another area.
LEGISLATIVE REFORMS
Most of the requested reforms will only marginally improve the lot of ratepayers groups involved in disputes at the OMB. Ratepayer’s submissions can be summarized as follows:
1) Request: Increasing the time before an appeal goes before the OMB after an application to Council. The 90-day limit (now 120-days under Section 34 of the Planning Act) was seen as an impediment to public input and criticism of an application. Reality: 75% of appeals are not referred less than 150-days from the application to Council.[16] Ratepayer representatives have suggested a period of 18-24 months before an appeal is taken as more appropriate and identified this issue as one of central importance[17].
2) Request: Require material relied on at Council to reflect the case before the OMB and restrict the ability of the OMB to consider new evidence. Reality: Bill 51 has required notice to the municipality for new evidence. Planning Act Sections 17(44.3)-17(44.6) set out this procedure. Municipal Associations and some ratepayer groups have criticized the 60-day prescribed period in Regulation 549/06 as too short for Council to respond to the OMB notice if it is between sittings.
3) Request: OMB members should be appointed for longer terms (over the current 3-years) to reduce the incentives of possible future employment by developers. Reality: It now appears that appointments are being made for 5-year terms.[18]
4) Request: The jurisdiction of the OMB should be restricted by excluding local issues such as minor variances and permits. It was also felt the jurisdiction on official plan appeals shoud be appellate and not by way of a new hearing.[19] Reality: The jurisdiction of the OMB remains larger than in any other province. Municipalities now have the option of setting up an alterate appeal mechanism for minor variances.
5) Request: Funding for ratepayer participation in hearings. Reality: Funding is a major obstacle for ratepayer groups to become involved in planning disputes. After the Harris government abolished the Intervenor Funding Project Act in 1993, successive Tory and Liberal governments have not proposed anything else to replace it. The Act was funded by proponents before a joint board (typically on larger projects) and involved hearings to establish the budget and size of ratepayer groups and the impact of the project on its members. Although the future of intervenor funding is politically dead, many reforms identified here can narrow the disparity of financial resources between the developer and the ratepayers.
6) Request: Online provision of hearing transcripts. Reality: Decisions (without attachments) and the status of applications can be searched online. Ratepayers will still have the expense of having representatives and experts attend at hearings. Nothing in the OMB annual reports suggest plans to post transcripts online.[20]
7) Request: applications to Council by builders must be more complete so they can not be used to in effect “jump the queue”. Reality: The issue is an over reaction to Paletta International (2004) 69 O.R. (3rd) 282. The matter is dealt with in item 2 above.
8) Request: A provision to review OMB decisions. Non-professional parties before it would review the OMB’s decision to determine whether there was a sufficiency of evidence, whether resources of parties were so unequal as to make the hearing unfair or whether there was a perceived improper hearing of the evidence[21]. Reality: Judicial review remains available. The OMB is tinkering with its procedures on an ongoing basis. Currently the emphasis is stated to be on early mediation.
9) Request: Prohibition of site specific OPA amendmends between the 5 year OPA reviews, mandatory ADR, greater weight to lay evidence, eliminating the probationary period for new OMB members to attract employed candidates, clarifying that the law at the date of application and not date of decision applies, accepting written in lieu of oral submissions, decisions “consistent with” instead of “having regard to” provincial policy statements. Reality: See No. 8 above. Many of these issues were ignored by ratepayers groups.
The legislation and the courts have taken a pragmatic and conservative view to the participatory rights of citizens in the planning process. In Friends of Toronto Park Land v Toronto[22], a ratepayer group that opposed Council was denied standing. Following a lengthy planning process, including official plan amendments, zoning by-laws and site plan approvals, the ratepayers opposed the issuance of a building permit as “any person who considers himself aggrieved” pursuant to Section 15(1) of the Building Code Act. From Oct 1984 to Jan 1990, the Toronto Council studied the proposal for the 150-space underground parking garage at Eglinton and Avenue Road. In the decision the Judge noted numerous meetings with the ratepayers during this time. In January 1990, the Toronto City Council authorized the construction of the garage. Two months later the City applied for approval for the construction from the OMB under Section 64 of the Ontario Municipal Board Act. On April 5 1990, in a letter decision, the OMB approved the construction and dispensed with a public hearing. One week later, on April 12, the plaintiff incorporated as a not-for-profit corporation. The concerns of the ratepayers resulted in the OMB requiring a response from the City, which was provided. The City argued that although the relevant by-law did not mention parking as a prohibited or accepted use (it was silent), it was not fair for the ratepayers to argue it was prohibited and that it was an accessory use of an established public park. On May 9, 2000, the OMB refused to reconsider its decision. Subsequently the ratepayers appealed to the Divisional Court. The Court ruled against the ratepayers. This case is a typical example of a ratepayers group not giving up after losing at council. Ratepayers do admit that the process is much fairer when the proponent is a public versus a private body, and when they are on side with the local council at the OMB. The bottom line is stay away from the OMB and Courts.[23]
In planning matters, the ratepayers’ best and perhaps only voice is through Council. The citizen suit has not made an appearance in Canadian planning law since the Canadian Environmental Protection Act, 1999. These civil suits gave standing to an individual suing for a contravention of a law, order or permit. An agency that failed to perform a non-discretionary duty could be sued after an opportunity to cure was given. Such suits permitted declaratory and injunctive relief, but no damages to the plaintiff.[24] Ontario permits these types of suits primarily as a motivator for government enforcement of environmental standards.[25] A similar ability to enforce the terms of approvals, permits and zoning by-laws would be a major coup for ratepayers groups.
INFLUENCE PEDDLING
Not all politicians can be bribed with votes. Over the last decade, the lot of municipal councilors has greatly improved. In 2007 a Toronto councilor could expect a salary of $95,000.00, employer contributions to OMERS Pension, LTD, life insurance, mileage allowance and health and dental coverage. In addition, there is an annual allowance of approximately $250,000.00 for office expenses and salary.[26] Where once city councilors were denied a living wage, higher compensation will create disincentive to developer influence of politicians by promises of post term employment. Also noteworthy is Toronto becoming the first municipality to appoint an integrity commissioner[27] pursuant to Sections 158 -161 of the City of Toronto Act (Bill 53, Ch.-11 S.O. 1996) with the power to report criminal conduct or make a finding that would permit Council to dock a member up to 90-days pay.