The OMB is dead. Long live the OMB!
Or, not quite. The Liberal government announced Tuesday that it is replacing the controversial Ontario Municipal Board — the quasi-judicial body to which cities, developers, and individuals can appeal decisions about everything from building McMansions to strip malls to skyscrapers — with a new board (the Local Planning Appeal Tribunal, or LPAT) that will have substantially narrower powers.
The OMB has been a bogeyman for city councils across the province thanks to its broad powers to overrule local decisions on, well, nearly everything. Neighbourhood groups also hate it, because of its habit of allowing developments they oppose because a building is too tall or has too much parking or not enough.
On the flip side, developers turn to the OMB as a court of appeal when a council says no to their proposals. And the province has, historically, relied on the OMB to quietly keep the wheels of the building industry turning, as well as handle a grab-bag of other municipal affairs, such as reviewing changes to municipal council ward boundaries.
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All that is going to change, and by the end of this year. The LPAT (it doesn’t have quite the same ring) won’t be allowed to hear appeals of some things the OMB currently can —notably city-wide official plans that are approved by the Ministry of Municipal Affairs. Municipal decisions that proactively allow dense construction near major transit centres (like subways or GO stations) will be, in turn, protected from third parties who can try to delay or derail them under the current system.
The LPAT will also be forbidden from simply ordering its own solution to local planning controversies: Unlike the OMB, if the LPAT finds, for instance, that a city council hadn’t been following provincial policy, the tribunal will be required to give the municipality a second kick at the can. (Right now, the OMB can just instruct the city on how to proceed.)
And that’s where things get interesting.
Developers believe — and the government agrees, at least a little — that the OMB, or something like it, is necessary to keep municipal councils from foiling provincial policy. The most obvious example is that the Growth Plan for the Greater Golden Horseshoe calls for more housing to be built in areas that are already developed, to encourage more dense, transit-oriented communities. The problem is that those areas contain people who have strong notions about what their neighbourhoods are supposed to look like — notions which don't often include condo towers and other denser forms of construction. Those people vote, and they don’t always reward councillors for supporting new development.
The Ontario Home Builders Association raised the spectre of NIMBYism already on Tuesday, warning that a weakened land-use planning body will derail provincial policy.
“It is difficult to understand how the province hopes to achieve Smart Growth goals by weakening the OMB when councilors are pushing back on intensification,” OHBA President Joe Vaccaro warned in a press release.
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The OMB is far from perfect, obviously: it also blew up Waterloo Region’s official plan, which was intended to encourage exactly the dense development provincial policy requires. It’s one thing to say a tribunal is needed to keep towns and cities from foiling provincial policy; it’s very different if the OMB is suddenly an obstacle to those same policies. If any one decision started the ball rolling towards the changes announced today, it was likely that one — but the OMB has never had many real allies, and decades of activism from local leaders looking to trim its powers have finally borne fruit.
The government obviously wants municipalities to follow provincial policy. It also wants to encourage more homebuilding, period: the Fair Housing Plan announced last month includes numerous measures to try to increase the housing supply and stabilize housing costs in the Greater Toronto Area. But on its own, a weaker OMB (or LPAT) would seem to work against exactly these aims: greater local control over planning matters could very well empower councils to say no to the kind of growth Queen’s Park wants to see.
So does the government’s right hand not know what the left is doing?
Minister of Municipal Affairs Bill Mauro said the changes announced on Tuesday — a bill will be formally introduced before the summer break — will balance deference to local councils without constricting housing supply.
“It’s going to expedite the process,” Mauro said at Queen’s Park. “We feel there’s still a balance there. The development sector will get their decision sooner, and if it doesn’t work for them they’ll have opportunities they can pursue. But this is about expediting the process and respecting local decision-making.”
Cities won’t be able to wall off their neighbourhoods from new construction, even with this new legislation. While the LPAT won’t be able to simply override city councils on the first appeal, as the OMB can now, municipalities also won’t be free to ignore it: if the tribunal finds that a city’s decision to, say, reject a condo tower, isn’t in keeping with provincial intensification policy, the council will have 90 days to respond with something that does satisfy that provincial goal. If the city can’t make a reasonable decision within that timeframe, then the LPAT will have all the powers of the old OMB to make its own decisions.
Later this week the government will also be presenting its changes to the Growth Plan, which spells out the government’s policies to encourage more sustainable development. As substantial as the changes announced today are, the language there will be even more important, as that's where we'll see if the government is strengthening the regulatory language around intensification and protecting green space to balance out the freedoms it is granting by killing the OMB.
And some of this is simply going to need to shake out in the real world. No matter how much the government says it is trying to achieve a balance between deferring to local councils and ensuring developers can still build the homes Ontarians want to buy, (preferably, in an environmentally friendly way) the reality is local councils already had the powers they need to say "yes" to new growth. The changes announced today make it easier for them to say "no" more often, and it’s hard to believe they won’t use those powers if they have them. The question is what the government — this one, and the next — will do when that happens.
Photo courtesy of Antoine Belaieff and licensed for commercial use under a Creative Commons licence. (See the uncropped version.)