OMB Reform

[DSC]

The OMB looks at cases de novo, while using the evidence that Council had access too.

So basically, if a staff report comes in saying "yah this application is acceptable and complies to provincial and municipal plans", and then Council decides "hell to the no" (after maybe reading public perception to the application?) then the applicant can appeal to the OMB who will then look at the evidence Council had access to, including those staff reports saying "yah this application is acceptable and complies to provincial and municipal plans" and then make a decision.

It is not wrong at all for the present Board to have power to hold municipal politicians to account for politicized decisions that run contrary to staff reports and municipal&provincial OPs.

It is much more common for Council to AGREE with a refusal Report from Staff and for the developer to appeal and then the Board starts a De novo hearing where new evidence or plans can be introduced. The reforms proposed would still allow OMB hearing based on a refusal not based on existing municipal or Provincial plans.

 

[WislaHD]

It is much more common for Council to AGREE with a refusal Report from Staff and for the developer to appeal and then the Board starts a De novo hearing where new evidence or plans can be introduced. The reforms proposed would still allow OMB hearing based on a refusal not based on existing municipal or Provincial plans.

The staff reports are not infallible. If the applicant believes that staff erred and that their application conforms to the Official Plans then they reserve the right to appeal. This is not the wild west.

Since 2006, the applicant is not able to freely introduce new evidence at the OMB. If they do, then the OMB must make the decision to send the application back to the municipal council for a new decision based on new evidence.

 

[Palma]

The staff reports are not infallible. If the applicant believes that staff erred and that their application conforms to the Official Plans then they reserve the right to appeal. This is not the wild west.

Since 2006, the applicant is not able to freely introduce new evidence at the OMB. If they do, then the OMB must make the decision to send the application back to the municipal council for a new decision based on new evidence.

So the OMB knows best? Over local planning? Ok right. They need to follow what municipal government have passed as THEIR official plans. Period.

 

[WislaHD]

So the OMB knows best? Over local planning? Ok right. They need to follow what municipal government have passed as THEIR official plans. Period.

Yes, that is literally what the OMB does. It determines if an application passes the municipality's official plans.

Take this recent case study from the Agincourt Mall Redevelopment:

I love how "Future Subway Station" is part of the developer's site plan.

Actually, the developer was FORCED by the Ward Councillor to protect for the Sheppard Subway .... "or else"

Assuming the information Solaris provided is true, the local Councilor here is forcing the developer to protect for a future Sheppard subway, or else he will instruct his council colleagues to strike down the development. This is an entirely politically motivated move, with zero relevance to any existing OPs.

The OMB is the body that provides accountability to elected municipal politicians, especially so in situations as the above.

 

[DSC]

Developers racing to OMB ahead of new provincial planning rules
See:
https://www.thestar.com/news/city_hall/2017/11/27/developers-racing-to-omb-ahead-of-new-provincial-planning-rules.html

The government really needs to set a cut-off date - ideally some months ago!!

 

[WislaHD]

I need help understanding this part of the legislation regarding Major Transit Station Areas.

Protected major transit station areas – single-tier municipality

(15) The official plan of a single-tier municipality may include policies that identify the area surrounding and including an existing or planned higher order transit station or stop as a protected major transit station area and that delineate the area’s boundaries, and if the official plan includes such policies it must also contain policies that,

(a) identify the minimum number of residents and jobs, collectively, per hectare that are planned to be accommodated within the area;
(b) identify the authorized uses of land in the major transit station area and of buildings or structures on lands in the area; and
(c) identify the minimum densities that are authorized with respect to buildings and structures on lands in the area.

(6) Section 17 of the Act is amended by adding the following subsections:

No appeal re protected major transit station policies

(36.1.4) Despite subsection (36), there is no appeal in respect of the following:

1. Policies that identify a protected major transit station area in accordance with subsection 16 (15) or (16), including any changes to those policies.
2. Policies described in clauses 16 (15) (a), (b) or (c) or (16) (a) or (b) with respect to a protected major transit station area that is identified in accordance with subsection 16 (15) or (16).
3. Policies in a lower-tier municipality’s official plan that are described in subclause 16 (16) (b) (i) or (ii).
4. Policies that identify the maximum densities that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15).
5. Policies that identify the maximum densities that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (16).
6. Policies that identify the minimum or maximum heights that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15).
7. Policies that identify the minimum or maximum heights that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (16).

Limitation

(36.1.5) Paragraphs 3, 5 and 7 of subsection (36.1.4) apply only if,

(a) the plan that includes the policies referred to in those paragraphs also includes all of the policies described in subclauses 16 (16) (b) (i) and (ii) for the relevant protected major transit station area; or
(b) the lower-tier municipality’s official plan in effect at the relevant time contains all of the policies described in subclauses 16 (16) (b) (i) and (ii) for the relevant protected major transit station area.

Exception

(36.1.6) Despite paragraphs 6 and 7 of subsection (36.1.4), there is an appeal in circumstances where the maximum height that is authorized with respect to a building or structure on a particular parcel of land would result in the building or structure not satisfying the minimum density that is authorized in respect ofthat parcel.

Exception re Minister

(36.1.7) Subsection (36.1.4) does not apply to an appeal by the Minister

(7) Section 34 of the Act is amended by adding the following subsections:

No appeal re protected major transit station area – permitted uses, etc.

(19.5) Despite subsections (19) and (19.3.1), and subject to subsections (19.6) to (19.8), there is no appeal in respect of,

(a) the parts of a by-law that establish permitted uses or the minimum or maximum densities with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15) or (16); or

(b) the parts of a by-law that establish minimum or maximum heights with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15) or (16).

Same, by-law of a lower-tier municipality

(19.6) Subsection (19.5) applies to a by-law of a lower-tier municipality only if the municipality’s official plan contains all of the policies described in subclauses 16 (16) (b) (i) and (ii) with respect to the protected major transit station area.

Exception

(19.7) Clause (19.5) (b) does not apply in circumstances where the maximum height that is permitted with respect to a building or structure on a particular parcel of land would result in the building or structure not satisfying the minimum density that is required in respect of that parcel.

Exception re Minister

(19.8) Subsection (19.5) does not apply to an appeal by the Minister.

My understanding is the following:

Major Transit Station Areas are identified in the Provincial Growth Plan (which mandates at least 200 residents/jobs per hectare). Bill 139 says that municipalities must include policies in the Official Plans to prescribe land uses, heights and minimum employment/residential densities in the major transit station areas.

Currently, developers are using Provincial Growth Targets at Major Transit Station Areas for getting away with higher density levels than is permitted in the municipa zoning by-law through appealing to the OMB.

Once Bill 139 is in place, the municipalities must adjust their Official Plans and Zoning By-laws to conform with provincial density targets. HOWEVER, under Bill 139, private applicants/appellants are NOT permitted to appeal a municipal OP or ZBL in a Major Transit Station Area. Not even under the new "Joint-Test" that is introduced by Bill 139 for private applicants/appellants of amendments to OP/ZBL. The only party that is permitted to amend an OP or ZBL when concerning a Major Transit Station Area is the municipality.

So, the municipality has gone from having limited to complete, 100% control of development at Major Transit Station Areas. If a developer proposes a development that exceeds the height/density permitted by the municipal OP/ZBL post-Bill 139, then the municipality can strike it down with impunity, and the developer has ZERO appeal rights to the new tribunal or any provincial body.

The one up-side is that at least the municipal OP and ZBL has to conform with the 200 residents/jobs per hectare near major transit station areas, which means that developers can get away with more through as-of-right zoning, but still....

Please tell me that my reading of this part of the Bill is wrong.

 

[Davidackerman]

Here's a detailed update From Goodmans law

http://www.goodmans.ca/files/file/docs/12.08.2017 - Municipal Planning Property Tax Update.pdf

 

[WislaHD]

From a practical perspective, the significant change relative to the current system is that it is no longer sufficient to show that the proposed amendment represents good planning and is consistent with or conforms to all provincial policy and any applicable official plan. Rather, the applicant must also establish that the existing planning instrument proposed to be amended is inconsistent or does not conform with a provincial policy or official plan.

This is really terrible.

My fears from above have also been confirmed by Goodmans:

New Policies Regarding Protected Major Transit Station Areas

New Planning Act provisions allow municipalities to delineate “protected major transit station areas” in their official plans in areas around existing or planned higher order transit stations and stops. If a municipality chooses to identify such areas, it must also adopt official plan policies that establish:

• minimum densities measured in persons and jobs per hectare;
• minimum densities for buildings and structures; and
• authorized uses.

Official plan amendments adopting these policies would be subject to the approval of the province or, in the case of lower-tier municipalities, the approval of the upper-tier municipality. However, there is no right to appeal official plans or official plan amendments respecting the protected major transit station area provisions noted above, and applications to amend an official plan respecting the above provisions would not be permitted. Likewise, policies that establish maximum densities or minimum or maximum heights for such areas are also generally not subject to appeal.

--------------------------------------

There is NO appeal rights to Major Transit Station Areas. This means that municipalities have 100% authority in dictating development and intensification proposals 500m surrounding Major Transit Station Areas. The area where the Growth Plan specifically calls out for concentration of growth is the one area that the municipality has the authority to turn down proposals for intensification with impunity.

This is a horrendous bill.

 

[torontologist]

There is NO appeal rights to Major Transit Station Areas. This means that municipalities have 100% authority in dictating development and intensification proposals 500m surrounding Major Transit Station Areas. The area where the Growth Plan specifically calls out for concentration of growth is the one area that the municipality has the authority to turn down proposals for intensification with impunity.

This is a horrendous bill.

I'm not sure I understand your concern. Municipalities must zone densities surrounding these station areas in a way that is compliant with the 2017 Growth Plan, which generally requires higher densities than those that currently exist. This provision is to prevent municipalities from underzoning areas surrounding major provincial transportation investments (see Guelph, Brampton, etc). The part that you've underlined prevents third parties (NIMBYs) from appealing the high density zoning in these areas.

From your last sentence, it seems you are afraid this will allow municipalities to oppose intensification, but this provision is actually intended to facilitate intensification?

 

[WislaHD]

I'm not sure I understand your concern. Municipalities must zone densities surrounding these station areas in a way that is compliant with the 2017 Growth Plan, which generally requires higher densities than those that currently exist. This provision is to prevent municipalities from underzoning areas surrounding major provincial transportation investments (see Guelph, Brampton, etc). The part that you've underlined prevents third parties (NIMBYs) from appealing the high density zoning in these areas.

From your last sentence, it seems you are afraid this will allow municipalities to oppose intensification, but this provision is actually intended to facilitate intensification?

It goes both ways.

Third parties will be able to achieve more through as-of-right zoning, which is very true and excellent. But there is two things that are wrong.

First, with no third party appeal rights, so the Municipality is not actually accountable to anyone but the Minister in actually updating their OPs at major transit station areas. LPAT only considers if the municipality's OP is conforming upon a third-party appeal.

Second, this also means that any proposal that is EXCEEDING the as-of-right zoning (and thus requiring a zoning by-law amendment or official plan amendment) can be rejected by the municipality with impunity, and there will be no third-party appeal to the LPAT to even make the argument "but growth plans".

So, if this was in place when Mizrahi was first proposing The One on the south-west corner of Bloor and Yonge, then City Planning could have rejected it stating it did not conform to zoning, and Mizrahi would have no appeal rights to LPAT or any provincial body.

 

[torontologist]

It goes both ways.

Third parties will be able to achieve more through as-of-right zoning, which is very true and excellent. But there is two things that are wrong.

First, with no third party appeal rights, so the Municipality is not actually accountable to anyone but the Minister in actually updating their OPs at major transit station areas. LPAT only considers if the municipality's OP is conforming upon a third-party appeal.

Second, this also means that any proposal that is EXCEEDING the as-of-right zoning (and thus requiring a zoning by-law amendment or official plan amendment) can be rejected by the municipality with impunity, and there will be no third-party appeal to the LPAT to even make the argument "but growth plans".

So, if this was in place when Mizrahi was first proposing The One on the south-west corner of Bloor and Yonge, then City Planning could have rejected it stating it did not conform to zoning, and Mizrahi would have no appeal rights to LPAT or any provincial body.

Fair enough regarding The One. I can't help but see it as a positive change though, over all, when looking at the extremely prohibitive zoning along the Bloor-Danforth line or around certain GO stations. The LPAT may be restrictive in certain extreme and unique cases, but in terms of creating a more livable city and facilitating smart development, it seems to be a win.

 

[WislaHD]

Fair enough regarding The One. I can't help but see it as a positive change though, over all, when looking at the extremely prohibitive zoning along the Bloor-Danforth line or around certain GO stations. The LPAT may be restrictive in certain extreme and unique cases, but in terms of creating a more livable city and facilitating smart development, it seems to be a win.

I see it as unnecessary, and extremely sloppy written legislation.

Under the current system, developers could appeal the zoning along Bloor-Danforth to the OMB citing growth targets around station areas. Municipalities were actually ordered to update their Official Plans to conform to Provincial Policy every 10 years through provincially mandated OP Reviews.

There are some positive take-aways of the Bill overall, but the way LPAT works is also ridiculously unnecessary and confusing. It is a topic worth discussing on its own.

Lastly, the thought that just occurred to me, is.. if there are no appeal rights at major transit station areas... What the hell happens when the municipality fails to respond within the time period? Does the developer then sue the city and take it to the court system? Isn't that why the OMB / LPAT is supposed to exist? This is what I mean by extremely sloppy written legislation. (And why we should not appoint Municipal Affairs Ministers from northern Ontario to write legislation for Toronto.)

 

[Palma]

Has this legislation had final 3rd reading yet?

 

[DSC]

Has this legislation had final 3rd reading yet?

Yes.

Passing of Bill 139 – the Building Better Communities and Conserving Watersheds Act, 2017


Please note that on December 12, the Legislative Assembly passed the Building Better Communities and Conserving Watersheds Act, 2017 which, among other matters, will replace the Ontario Municipal Board with a new tribunal, the Local Planning Appeal Tribunal, and helps ensure that proceedings before the tribunal are faster, fairer and more affordable.


More specifically, the legislation includes reforms that will:

• Reduce the number of appeals by limiting what could be brought before the new tribunal.
• Reduce the length and cost of hearings and create a more level playing field for all participants by introducing timelines and requiring the new tribunal to look for ways, like mediation, to settle major land use planning appeals that could avoid the hearing process altogether.
• Eliminate lengthy and often confrontational examinations and cross-examinations of witnesses by parties and their lawyers at the oral hearings of major land use planning appeals.
• Establish the Local Planning Appeal Support Centre, a new provincial agency, which will provide Ontarians with information about the land use planning appeal process, legal and planning advice, and, in certain cases, may provide legal representation in proceedings before the tribunal.
• Give more weight to key decisions made by municipal officials who have been elected to serve in the interests of the communities they represent.

These and the other reforms in the new legislation stem from last year’s comprehensive review of how the Ontario Municipal Board operates and its role in the province’s land-use planning system.


Proposed Regulatory Changes

Some of the changes made through Bill 139 will require corresponding amendments to existing regulations and the creation of new regulations.


Planning Act

Under the Planning Act, the proposed regulatory changes would:

• Require explanations of how planning proposals conform with local planning documents (which would build on other requirements);
• Clarify requirements for municipal notices;
• Make other technical changes; and
• Establish transition rules for planning matters in process at the time of proclamation under the Planning Act.

For more information, including providing comments on these matters please go to the Environmental Bill of Rights Registry:

• EBR Registry Posting 013-1790: Proposed amendments to matters included in existing regulations under the Planning Act relating to the Building Better Communities and Conserving Watersheds Act, 2017 (Bill 139).
• EBR Registry Posting 013-1788: Proposed new regulation under the Planning Act to prescribe transitional provisions for the Building Better Communities and Conserving Watersheds Act, 2017 (Bill 139).

Local Planning Appeal Tribunal Act

Under the Local Planning Appeal Tribunal Act, 2017, the proposed regulatory changes would:

• Establish transition rules for appeals to the Tribunal under the Planning Act;
• Establish timelines for appeals to the Tribunal under the Planning Act;
• Establish time limits for submissions at oral hearings for major land use planning appeals before the Tribunal; and
• Scope the practices and procedures of the Tribunal in respect of major land use planning appeals.

For more information, including providing comments on these matters please go to Regulatory Registry:

• Ontario Regulatory Registry Posting 17-MAG011

 

[bilked]

The long awaited transitional rules won't be out until some time in the spring. However, the government is proposing the following:

• appeals that are already before the Ontario Municipal Board as of the date of Royal Assent (December 12, 2017) of Bill 139 would be subject to the existing rules and would be heard by the Ontario Municipal Board;
• appeals made after the new rules come into force (est. spring 2018) would be subject to the new rules and heard by the new Local Planning Appeal Tribunal;
• appeals of matters between the date of Royal Assent (December 12, 2017) and the date that the new rules are proclaimed into force (est. spring 2018):
  • would be heard by the Ontario Municipal Board if the planning matter began (e.g. the complete application was received) before the date of Royal Assent (December 12, 2017); and
  • would be heard by the Local Planning Appeal Tribunal if the planning matter began after the date of Royal Assent ((e.g. the complete application was received after December 12, 2017).

Here's the news release: https://news.ontario.ca/mma/en/2017...rd-to-the-local-planning-appeal-tribunal.html

The race to get applications in is thus now (likely) over.