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Finally a change in the OMB

ducati0000

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ne 5, 2008

OPEN LETTER TO ALL WARD 20 RESIDENTS:

OMB REFORM BEGINS NOW!

A significant step was taken today, in the fight to reform, and in fact, eliminate part of the Ontario Municipal Board’s (OMB) functions. At the Planning and Growth Management Committee this morning, City Councillors approved the motion attached below.

This decision starts a process that will eliminate the Ontario Municipal Board as an as appeal body for Committee of Adjustment (CoA) decisions. As your Ward Councillor and as member of the City’s Planning and Growth Management Committee, I have been working my colleague Councillor Peter Milczyn on this idea and I was proud to support the motion which passed unanimously this morning.

Currently, significant development applications that fall just short of requiring an Official Plan Amendment, a formal re-zoning or are deemed to involve only minor amounts of additional density and/or changes to an approved or existing property or design are dealt with by the CoA.

In theory, the CoA was set up to deal with only minor variances such as; extensions to buildings (enlarged porches, rear additions, or the construction of new basement apartments, etc.). In practice, this work still forms the bulk of the cases heard by the CoA. In recent years however, this has begun to change, especially in Ward 20.

Residents now see large projects that have gone through an extensive planning process and careful debate (and occasionally, have even been settled by the OMB) resurface at the CoA with months of a settlement.

The project is restructured, the community is often ambushed, the political and planning process are undermined, and less informed, less regulated and less challenged developments are re-configured and approved in lightening speed.

Today at the Planning and Growth Management Committee, we set in motion a process to put an end to this form of backdoor re-zoning by instructing staff to take advantage of the new powers afforded council in the City of Toronto Act, and to begin work in creating a made-in-Toronto appeal process that will eliminate the OMB as an appeal route for applicants unhappy with the CoA decisions.

CoA decisions would still be open to appeal, but the body that would have carriage of the issue would be appointed by City Council and would operate within guidelines and rules set by Council. This could include instructions to adhere to heritage guidelines, render judgments consistent with Avenue studies and Part II plans. The new appeal body could also be required to interpret all non-planning city by-laws much more literally as the impact of a development is considered and approved.

This is a significant initiative. It heralds and hopefully begins the process of making Toronto’s planning process much more accountable, community-based and sensitive to local conditions and more importantly a more neighbourhood-based process.

There is still a lot of work ahead and as a member of the Planning and Growth Management Committee, I will do all I can to make sure that the concerns of resident groups are front and centre in how the proposal evolves. As it stands now, a working group of committee members and staff will jointly develop a proposal to bring to the community in the fall. At that time, public consultations, financial impacts and responses from all stakeholders and City diviisons will kick-off a public process to bring this idea to life and a introduce a new approach to planning approvals to City Hall.

This initiative won’t solve all of the problems we have with the OMB or the CoA, but it is a serious start and may be the first step in Toronto becoming a self governing city when it comes to planning.

Yours truly,

Adam Vaughan
City Councillor
Ward 20, Trinity-Spadina
 

gmania

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The rest of the e-mail sent from Adam Vaughan included:

MOTION PGM 16.11

Background

The new City of Toronto Act ushered in expanded powers and responsibilities for municipal government in Toronto. One of the significant new powers which were given to the City is the ability to establish our own Appeal Panel for Minor Variance and Consent applications heard by the Committee of Adjustment.

Section 115 of the Act gives the City the ability to establish its own Appeal Panel and appoint members of the Panel according to its own criteria. The only restrictions the Act imposes are that members of the Appeal Panel may not be Members of Council, Committee of Adjustment members, or City staff.

Recommendations:

1. A Councillor-Staff Working Group is struck to develop the structure for an Appeal Panel to hear appeals of Committee of Adjustment decisions on Minor Variance and Consent Applications.

2. The Working Group should consider;
- the staff and financial resource requirements for the establishment of such an Appeal Panel
- the fee structure for Appeals
- the structure and size of the Appeal Panel
- qualifications and criteria for appointment of members to the new Appeal Panel

3. The Councillor-Staff Working Group should report to the Planning & Growth Committee by October 2008. The Executive Committee and Budget Committee should be kept apprised of the work of the Working Group so as to be able to plan for the new Appeal Panel’s implementation.

The City of Toronto, residents and generations of municipal politicians have lamented the fact that the Ontario Municipal Board has jurisdiction over appeals of local Planning matters. The Government of the Province of Ontario has offered the City the ability to take over responsibility for a fair, rule-of-law based Appeal Panel for hearing appeals of decisions of the Committee of Adjustment.

It is important that the City of Toronto grasp this opportunity to demonstrate its ability to more fully take control of the Planning process at the municipal level. A successful implementation of this measure would strengthen the City’s calls for wresting more control over the Planning process away from the Ontario Municipal Board.

The new City of Toronto Act ushered in expanded powers and responsibilities for municipal government in Toronto. One of the significant new powers which were given to the City is the ability to establish our own Appeal Panel for Minor Variance and Consent applications heard by the Committee of Adjustment.

Section 115 of the Act gives the City the ability to establish its own Appeal Panel and appoint members of the Panel according to its own criteria. The only restrictions the Act imposes are that members of the Appeal Panel may not be Members of Council, Committee of Adjustment members, or City staff.

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I'm pretty sure the City already studied setting up a new CoA appeal board and found it would be way too expensive. But of course, I can't find a report right now to cite.
 

RedRocket191

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Of course someone shouldn't have to go to the OMB if they want to build a sun room in their back yard, but I don't think this is a solution to the problem. The problem with the OMB is that they tend to approve neighborhood-changing development against the wishes of the people.

The city should proceed with a minor variance appeal body, but this doesn't fix the OMB. We need a more collaborative system like mandatory urban-design review for all large-scale developments.

But, on the other hand, sometimes the city is afraid to approve good development when the residents don't want it. in a strange way, those are some of the times we have to dance with the devil.
 

Hydrogen

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The risk is that every development will become a political issue. Many residents don't want change in their neighbourhood - any change - and that is not necessarily good for the city in the long run.
 

Skeezix

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Of course someone shouldn't have to go to the OMB if they want to build a sun room in their back yard, but I don't think this is a solution to the problem. The problem with the OMB is that they tend to approve neighborhood-changing development against the wishes of the people.

The city should proceed with a minor variance appeal body, but this doesn't fix the OMB. We need a more collaborative system like mandatory urban-design review for all large-scale developments.

But, on the other hand, sometimes the city is afraid to approve good development when the residents don't want it. in a strange way, those are some of the times we have to dance with the devil.
That's why we have the OMB, because "the wishes of the people" often tends to lead to the worst kind of NIMBY-type planning. We need a system that focuses on good planning, not good politics, and sadly, until City of Toronto Council grows up, that system is the OMB.

And it should be noted that "the wishes of the people" is often anything but. The parochial interests of nearby residents are routinely put ahead of the City-wide planning interests. And whereas I don't believe that the interests of nearby residents should ever be ignored or dismissed (they need to be given significant weight in the decision-making process), there is rarely any balancing done with the larger City interest in the context of our "I'll scratch your back, you scratch mine" system of Council system of politics, where Councillors each have their own fiefdom and the others defer to their political interests. The best example is the new Official Plan, which was approved after a lengthy and comprehensive democratic process, involving stakeholders from across the City -- yet Council often ignore its own OP policies in rejecting or approving development projects on the basis of the whims of the local Councillor and his or her assessment of the political winds in the ward.

I've said it before in these forums, but I'll say it again: I have sat through many, many Council meetings and through many, many OMB hearings. And it has almost always been the case that the OMB hearings consisted of a far more thoughtful and comprehensive review and exploration of the merits of the proposal, including analyses of planning impacts and design, and a consideration of all applicable provincial and municipal policies. The sophisticated ratepayer groups excel at the OMB. Many others are frustrated by the process, because unlike the Council floor, they need to rely on facts, not rhetoric, and simply raising their voice no longer gets them what they want.

Having said that, I completely agree with your comments on urban design panels, and the City is moving in that direction. If Council were to empower those panels, and have due regard to their conclusions, and were to let the Planning department do its job, rather than bullying it, the OMB would largely be rendered irrelevant. Contrary to popular belief, the OMB does not always overturn Council decisions. In fact, it defers to the decisions of Council far more often than it overturns them. When it does overturn them, it tends to be high profile cases where Council ignored the planning evidence and made political decisions. If Council were to get its act together, and implement a mature and reasonable planning process at the City, it would do more to exclude the OMB from the planning process in Toronto than anything it has done to date.
 

BobBob

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Taking over authority from the OMB is great, but as others have pointed out, for all its problems, it has also been our only defence against rampant NIMBYism. In Toronto, it seems that "local residents" are against 90+% of new proposals, so giving them more power would be problematic. What we need is a strict set of city-imposed guidelines to be followed, which will remove the OMB (which approves everything) but not hand the power to "local interests" (who would approve nothing).
 

grey

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Committee of Adjustments are usually crazy political. This might not work out as well as he hopes, but fingers crossed. If the province incorporated design and affordable housing considerations more explicitly into the planning act, this would be solved a hell of a lot easier.
 

waterloowarrior

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at the CofA meetings I have been at lately (not in Toronto) every ratepayer group seems to be quoting this decision regarding the definition of minor. A judge (I think) apparantly said the 'minor' means not only the impact but how much of a variance it is (ie if it's a 100% variance it's not minor). Is this legitimate? the planning law books I have talk about minor referring to the impact.
 

Skeezix

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at the CofA meetings I have been at lately (not in Toronto) every ratepayer group seems to be quoting this decision regarding the definition of minor. A judge (I think) apparantly said the 'minor' means not only the impact but how much of a variance it is (ie if it's a 100% variance it's not minor). Is this legitimate? the planning law books I have talk about minor referring to the impact.
That's the Degasperis decision. The court overturned an OMB decision on an appeal from a Toronto Committee of Adjustment decision. In determining whether the minor component of the 4-point variance test had been met, the OMB decision had referred only to impacts on other property - the Court scolded the OMB for not also considering whether the proposed variance was numerically minor or not.

Degasperis gets quoted a lot, mostly by people that haven't actually read it, as standing for the principle that a "big" variance can't be minor. Virtually all municipal lawyers agree that Degasperis didn't actually change the case law if you read the decision carefully. The determination of minor is still not an arithmetic exercise. A variance of 50% from the performance standard can potentially be minor, depending on the circumstances, while a variance of 0.5% can be found not to be minor in certain other cases. One looks at the actual context, and Degasperis supports that proposition. Desgasperis did not establish any new benchmark, and the manner in which it has been applied in the last two years or so makes it quite clear that it did not.
 

waterloowarrior

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great info

interesting... thanks for the explanation. the community groups were arguing '36% is not a minor percentage!' relating it to a 36% salary decrease for the planning staff or council or something.... haha
 

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