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Aaron A. Moore Ph.D. explores the question 'Is the OMB a problem to Toronto’s development or just the scapegoat?' Moore presented his research at the University of Toronto's Institute on Municipal Finance and Governance last week. The presentation "Villain or Scapegoat?: The OMB and land use planning in Ontario" was a lead up to his upcoming book “Planning Institutions and Politics - The Ontario Municipal Board and Toronto” due out the summer of 2012. It was a timely presentation given City Council’s upcoming February vote on whether to ask the Province to abolish the OMB for Toronto.
Moore’s research spans the past 10 years and he finds that the OMB is indeed masking the real issue. That issue is one of a flawed planning system that is arbitrary, and constantly challenged. He cites Section 37 of The Planning Act 'Density Bonusing' as an example of how a well intentioned intensification initiative may lead to poor city zoning decisions. Density Bonusing is when a developer requests to surpass the maximum density allowed by zoning. The City of Toronto can ask for compensation to allow for the increased density, usually a monetary amount. The idea is that the city will use the money to accommodate the area for the increased density. In the last 3 years there were 261 zoning changes and 118 times Section 37 was implemented to compensate the city. The problem is that the city has an incentive to leave zoning densities low and request developers to compensate for exceeding the zoning. In the case for the City of Toronto, Density Bonusing funds are not accurately tracked to ensure they are invested back in the neighbourhood.
The OMB comes into play when developers exceed zoning density and neighbourhood associations feel they have justification for challenging the development. Neighbourhood associations rally their City Councillors to oppose the development, even if the City Planning Committee favours the proposal. The development is voted down at City Council and then appealed to the OMB. The OMB puts weight on professional planning expertise such as that of the Planning Committee recommendations instead of City Council’s. A development with planning support, but not council support will likely be approved. A Councillor can side with the voters of the neighbourhood association and blame the OMB as to why the development went through without risking growth and development in their ward. Moore cites that the number of OMB decisions favouring developers over city council has increased in correlation to the number of increased neighbourhood associations in the city. The OMB has become a relief valve for local politics.
With the Section 37 incentive and the councillors having the option to blame the OMB, a contentious environment is created of developer versus city planning versus city council versus the OMB. An outsider would view it as a chaotic system where there is no point to planning and zoning if it can all be challenged and changed at the OMB. Moore notes it is not like this in other jurisdictions; the State of Oregon was presented as an example of having institutions similar to the OMB, but with better planning that reduced appeals to those bodies. Moore noted that in Oregon planning is not just done at the local level, but at the state level as well. The state sets a land-use plan and approaches each city for a comprehensive plan of how their zoning will compliment the overall plan. Ontario has a growth plan often referenced in intensification challenges, but the province does not approach every city and ask for how their zoning will meet the growth plan targets. Instead, zoning has to be challenged, often at the OMB level, to meet the intensification objectives on a case by case basis. For comprehensive planning to take place in Ontario more resources would be required. Even in Toronto, Moore notes that city planning staff are evenly distributed among all wards, even though development is usually concentrated in a few wards.
Moore did raise a concern about the Toronto’s recent proposal to abolish the OMB in the city. Councillor Kristyn Wong-Tam and Councillor Josh Matlow recommend that the OMB be replaced by the Committee of Adjustments, and any challenge to City Council decisions would be made in a court of law. In Moore’s research he found the courts to be expensive, time consuming, and possibly more in favour of developer arguments of fairness, rather than planning expertise. Where neighbourhood associations today feel powerless against the OMB due to a lack of planning expertise, in the proposed system they could be shut out due to legal costs and endless litigation. The current City proposal does not address Moore’s areas of improvement: comprehensive and transparent planning involving not just local but regional jurisdictions. Moore would like to see the Province and cities agree on growth objectives and have in place the zoning to accommodate those objectives, then developers, residents, and municipalities could stop wasting resources challenging each proposal. Moore has the research and numbers to show the OMB does not have to be a scapegoat. The only concern is that with comprehensive planning, Toronto could lose some of its current dynamism. Twenty years ago who could have planned for Maple Leaf Gardens to become a grocery store or Etobicoke's motel strip to become a skyline?
