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The OMB, II

In retirement, I was confronted by an urban planning challenge in downtown Toronto - a developer proposed to put twin 58 storey towers just a few meters from my study window. Early in my urban planning learning experience, I had to face the Ontario Municipal Board (OMB) challenge. The OMB exercises something that is all too close to the divine right of kings. They, in their infinite wisdom, can make or unmake any land use decisions made by the city of Toronto, or by any other local body anywhere in Ontario.

That didn't seem reasonable to me. I wrote a blog post and deputed to the city about this misuse of the divine right of kings. I've now had an additional five years of experience with urban planning in Toronto. I developed and presented urban planning courses at Ryerson's LIFE Institute (largely by 50+ course leaders for 50+ course participants). I've participated in urban planning working groups and I've sat in somewhat stupefied amazement during portions of OMB hearings. I still believe that the role of the OMB should be changed, but now recognize that it's not a simple question of abolition.

There is a complete planning echo-system at work in Toronto. Municipal councilors are elected from the different wards in the city. They provide the oversight for virtually all planning decisions in their ward. And some of the councilors enjoy a "war chest" arising from the so-called Section 37 charges which developers are required to pay. These can amount to tens of millions. Admittedly, there are restrictions on how these monies can be spent, but the entire ward urban planning process can feel quite proprietary. Couple proprietary ward councilors and a relatively weak mayor, ... too little attention can be paid to city-wide urban planning concerns.

The city-wide Official Plan is actively under review. That review process has taken considerably longer than many of us had expected. Indeed, the province recently changed the rules. The old rule called for a five-year Official Plan review cycle. The new rule calls for a ten-year review cycle. In addition, there is an active plan development for the entire downtown core of Toronto. This planning initiative is mid-way through an expected two-year process. Finally, there is an approved local planning framework which covers an area (Historic Yonge Street) that includes the site of the initially proposed twin 58 storey towers. That planning framework is under active challenge at the OMB.

The OMB follows a pseudo-legal process. Allowed arguments hew to something close to the medieval casuistry process. Land use planning principles can be cited, as can previously decided cases. Evidence is accepted from recognized experts. The OMB board member who presides at a hearing renders a judgment. She or he can accept the land use planning decision passed by city council, accept the challenger's view of what should have been passed, or render such judgment as she or he feels would be in the best interest of those concerned with the decision. Throughout this decision process, local residents can express their opinions, but their views clearly do not have the weight of expert testimony.

There are several problems with this entire process. It's clearly adversarial. Decisions naturally fall somewhere along the spectrum of views presented by the two principal adversaries - typically the city on one end and a developer on the other end of the spectrum. There is scant reason to expect that the best land used planning decisions would necessarily fall somewhere along this spectrum. Compounding the problem is the fact that the board member hearing the case need have no planning expertise or even any knowledge of the specific land whose use is being disputed. The OMB isn't structured or staffed to be a planning body.

The OMB is a dispute resolution body which by default makes many of the key land use planning decisions in Ontario. And even when no direct appeal is taken to the OMB, the threat of an appeal to the OMB hangs over the heads of all involved in land use planning. The province has taken some modest steps to improve the process. It now encourages the use of mediation rather than relying solely on the casuistry found in a formal hearing. It now provides that greater weight be given to non-experts who may be impacted by the decisions being argued. And there is the prospect of a Community Planning Permit System that may remove some land use planning decisions from OMB review.

The fundamental problem remains: the OMB is not staffed or structured to make land use plans. One "simple" change could move the process to a more positive place. Encourage the OMB to act like an appeals court and toss an ill-made land use decision back for review and reconsideration, effectively remanding such decisions. Such an encouragement would alter the dynamics of the entire process. Today, an appeal to the OMB begins what could be a lengthy process, but at least there is the assurance of a decision at the end of that process. Were remanding to be practiced, there would be the threat of repeating the planning process, with possibly the same outcome. The urge to compromise would be increased. It could be a positive step.

Overall, there seems to be a broad recognition that the land use planning process in Toronto does need to be improved. The province, with Bill 73, has taken some tentative steps in what may be a positive direction. There remains an open question of whether significant land use planning improvements will be possible in this development long-cycle. Granted there are some positive indicators, but everything takes so long. It is to be hoped that the staffing and structure of the future OMB will match its mandate. The current gap between what it is able to do well and what it does is just too wide.