Board of contention

Will a much-hated planning tribunal become a provincial election issue?

BY JENNIFER PRITTIE

Somehow, deservedly or not, a dull-sounding agency called the Ontario Municipal Board (OMB) has become one of the great villains of the modern Tory era in this province. Like the education-funding formula, a concept that will be long associated with the Harris and Eves governments, the OMB has taken on mythical stature over the past eight years. Its legions of detractors view the board as a nasty package that encompasses and represents those governments' wider aims: it stands for bad planning over good, they say, for confrontation instead of consensus, and for get-rich-quick developers triumphing over neighbourhood groups.

Unlike the education formula, however, the OMB is not sexy or concise or even widely known enough to play well as a provincial election issue. But those who truly loathe it -- particularly its growing number of detractors in 905 -- are determined to make it one anyway.

The OMB is not new, nor is it newly controversial. It has existed in the province in various forms since 1897, and its modern incarnation stems from powers given to it in 1932, though those powers have since been expanded substantially. Essentially, the board is a quasi-judicial tribunal that has the final say on planning disputes in Ontario, having the ability, if it so chooses, to completely ignore the wishes of local residents, bylaws, official plans, politicians and city planning departments. The board consists of a chair, several vice-chairs and a variety of "members," who are appointed by the provincial government and travel around the province to hear cases. At OMB hearings, evidence is often introduced and dissected by powerful development lawyers. Expert witnesses are called and cross-examined, and exhibits are filed.

The board gets its authority from over 180 pieces of legislation, though chiefly from the provincial Planning Act. It can review official plans, zoning bylaws, minor variances, ward boundaries, land compensation and development charges: effectively, quite a wide range of issues, though the cases you hear most about, at least within Toronto, usually involve battles over the proposed height, density and massing of new buildings, which are typically condo towers these days. After the board has issued a decision, there are some legal recourses available, though they're quite specific -- and in any event, residents' groups who had to represent themselves before the OMB because of cost issues often don't have the resources to take an appeal any further.

There are a raft of now-infamous local OMB cases in Toronto heard in recent years. The best-known concerns the uptown fury over the board's approval of the Minto towers, the 38- and 51-storey condo towers scheduled for Yonge and Eglinton. According to the Federation of North Toronto Residents Associations (FONTRA), which vehemently opposed the project on the grounds that it will be vastly disproportionate to surrounding low-scale neighbourhoods, the towers are "skyscrapers" that are three times larger than allowed by zoning bylaws. Michael Visser, a FONTRA leader, says local residents raised $100,000 to fight the developer at the OMB, and lost.

Another recent Toronto case that drew local ire concerned a heritage group called the Friends of Fort York and Garrison Common, which wanted to prevent a wall of condos from encircling the historic fort, a development that some have warned will create a second Harbourfront. The group managed to raise $30,000 to go before the OMB, and also lost (see sidebar page 11). Then there's Save the Annex, a neighbourhood group that was handed its defeat before the board just last month. The fracas it's mired in concerns a developer who wants to build six townhouses in a space behind existing houses on Brunswick Avenue. The developer has called it "infill," and a "house behind a house;" the neighbourhood group calls it blockbusting (see www.savetheannex.com).

But increasingly, the big OMB battles that get written about involve dust-ups in the 905 belt, particularly as developers attempt to stick large-scale housing enclaves onto environmentally sensitive land. Most notably, those cases have involved new subdivisions on the Oak Ridges Moraine north of Toronto, but also east of the city, where the moraine meets the flora-and-fauna-rich Rouge Valley corridor.

A current 905 battle before the board, which concerns new housing planned for the Trafalgar Moraine in Oakville, neatly sums up many of the frustrations OMB opponents have. On April 14, a Toronto Star article by David Lewis Stein on the Oakville dispute noted: "Developers have hired legal stars from the municipal bar. The two environmental groups [opposing the new housing before the OMB], Oakville Green and The Clear Air Coalition, can't even afford lawyers." (See www.oakvillegreen.com for more information.)

But these 905 cases aren't just the site of the newest swaths of construction in the GTA. They're also traditional Tory heartland, which an increasingly beleagured Premier Ernie Eves will be desperate to hang onto in order to salvage an election victory.

That point's not lost on the Liberals. In a backgrounder issued in 2000 they wrote: "In the past five years, GTA municipalities spent more than $20 million fighting cases before the OMB. The Town of Uxbridge had to raise property taxes just to pay the legal fees it incurred while fighting a developer at the OMB."

A recent development that OMB opponents hope will increase the likelihood that the board will be an election issue is a group called the GTA Task Force on Ontario Municipal Board Reform, which released its final report in mid-March (for the report, go to www.region.durham.on.ca and click on "highlights").

Significantly, the task force was both conceived of and led by Roger Anderson, the chair of Durham Region, and was composed mainly of GTA elected officials, with only one Toronto representative, Councillor Howard Moscoe (Ward 15, Eglinton-Lawrence). That's some indication of the momentum with which OMB reform has swung from being a 416 to a 905 cause.

And what were the task force's main criticisms of the OMB? The first issue concerns the board's extensive powers, which Anderson says are greater than those of any planning review organization in any jurisdiction in North America. Those powers arise partly from the fact that the board holds de novo hearings, meaning that instead of reviewing a specific part of a previous decision, members can and do look at everything about the case as though no decision had ever been rendered on the matter. As part of that process, members can review and dismiss even the extensive planning work that city staff have spent enormous time, effort and expense developing. "You end up spending millions of dollars in taxpayers' money defending the city's planning decisions," says Anderson.

Then there's the prohibitive cost of appearing before the OMB. Most neighbourhood or heritage groups don't have anything like the resources of the north Toronto residents who fought the Minto towers -- the same residents who raised $100,000, and who also had some professional planners and architects among their number who could help with technical matters.

Another key criticism has to do with the fact that the OMB is widely viewed as being pro-development. Though Anderson says the task force was presented with statistics that dispute a development bias, his report does conclude that the perception is widespread enough that it must be dealt with.

The perception largely stems from a rule that says that if a city hasn't decided on a planning approval within 90 days after it's made, a developer can appeal its case straight to the OMB. This occurs regularly despite the fact, as Moscoe points out, that sometimes the reason there's been no decision within the 90-day time frame is that the developer hasn't yet completed studies, such as traffic flow surveys, that must be done over time. For their part, architects and developers counter that the post-amalgamation city of Toronto is too slow and too overwhelmed to deal with things in a timely manner, so it's only fair that they have recourse before the OMB.

The 90-day appeal also leads to some weird arguments when parties on either side of an OMB case try to attract public sympathy. For instance, it's no longer considered unusual for a developer to appeal to the board straight away, but when the University of Toronto did it to try to push through its new residence at Bloor and St. George, opponents charged that it was a very aggressive approach for an institution to take. Using the 90-day appeal is all right for condos, apparently, but unseemly for student residences.

Then, Visser notes, there's the trouble that arises when just the threat of an OMB hearing is hanging over sparring parties. Because people are increasingly aware of the expense, confrontation and lasting bitterness a hearing can involve, there's often an attempt to cut poor deals before a case reaches the OMB -- particularly since locals assume they won't get anything at all once they go before the board. Visser says that's what led councillor Anne Johnston (Ward 16, Eglinton-Lawrence), much to her constituents' surprise, to cut a secret $4.5-million deal with Minto while her constituents were so vehemently struggling with the developer. It's because of this that Visser swears the OMB will have an effect on Toronto's fall election as well: Johnston will get constant grief about the towers while she's on the hustings, he says.

On the provincial front, the Liberals have already promised to redo the OMB. "We will ensure that all developers play by the rules by completely overhauling the Ontario Municipal Board," it promised in that 2000 backgrounder. Specifically, the party has said it would end OMB patronage appointments, significantly extend the 90-day appeal timeline, and make the board give greater weight to official plans, "so that years of consultation and work on these plans are not routinely thrown out by OMB decisions."

Anderson, whose task force did not recommend outright abolition of the board, says that he thinks it's still got some use in smaller towns, where municipalities may not have sufficient planning resources. But he wants it to become more of a review panel than a policy-making tribunal, and he also wants the province to establish an intervenor fund so local groups can afford to present their cases before it.