Sunday, May 03, 2009

F to the B to the O-M-B

The topic of the Ontario Municipal Board (OMB) came up on an e-mail list I'm on. Specifically, someone was confused that City Staff would provide testimony at the OMB that contradicts the decision of City Council. Having been to the City of Ottawa's Planning Primer (next one's at the end of May--sign up before May 20th!) session on the OMB, I explained how the OMB, City Council, City Staff, and the Province all inter-relate.

At least one of the people who received my message was astounded that municipal "democracy" works the way it does in this day and age. Given their reaction, I thought it important to share this explanation of how the OMB works with a wider audience:


David is describing how the OMB operates. The OMB can override Council, and takes planning evidence into its decisions. Councillors' opinions are political information, not planning evidence from professionals.

The job of City Staff in terms of Council decisions is to inform Council's decisions based on the proposal by the developer, and this often takes the form of making a recommendation based on their professional analysis of the proposal. Council then makes their decision based on a variety of factors, including Staff's recommendations, their own personal opinions, and comments from the public and lobbyists.

When an appeal is made to the OMB, Staff from the planning department can be called to testify, as they have an expert opinion. Other professional planners (i.e. those acting on behalf of other parties to an OMB hearing) can also be called as witnesses, but when City Staff are called, they have to give their professional opinion, and obviously it must reflect whatever opinion they gave to Council at the time.

The Board member then makes a decision based purely on whether it makes sense from a planning perspective, not political/social/democratic considerations. And they are supposed to consider it from first principles, and not in comparison to however Council decided on the case.

I'm not saying I like this, I'm just describing how it goes (or at least, how it's supposed to go).

Keep in mind that the City of Ottawa is a creature of the Province, and so is the OMB. The OMB acts as a form of appeal for municipal decisions. Sort of like how the Governor General and provincial Lieutenants General act as representatives of the queen, and theoretically have the power to overturn the decisions of the legislature. Except the OMB, established in 1897, still holds real power to override decisions of democratically-elected representatives.
(I didn't bother replacing David's name, because there are so damn many of them in this City--even just in the ottawablogosphere!--that it's sufficiently ambiguous!)

The OMB was created over a century ago. Democracy has come a long way since then. The Board should be abolished, and the buck should stop at elected municipal councils (dysfunctional as they sometimes may be).

- RG>


David McClelland said...

Cities need more political autonomy in Canada. Unfortunately, I don't see that happening any time soon... no one wants to upset the status quo.

Anonymous said...

They way the Citizen (Randell Denley specifically, IIRC) explained it a while back, was that city councils set the planning regulation, and it was the role of the OMB to see that the planning regulations were adhered to.

The article then went on to say that if our Council isn't happy with the OMB's decisions, they have to make the planning regulations match what they want, rather than deciding it on a case by case basis.

RealGrouchy said...

Horse-hockey! The City's zoning calls for a 12-storey height limit on the so-called "portrait gallery" site. Council approved two towers, 20 and 24 storeys, and the OMB granted the developer to build two 27-storey towers.

- RG>

Anonymous said...

My next door neighbor built a 2nd storey deck addition that exceeded zoning bylaw allowances by 3 meters prior to obtaining approval and then sought to legalize structure. As an adjacent neighbor in a rowhouse who shares a common wall, the close proximity of deck structure creates signficant issues of privacy, shadowing, noise, etc. Local councillor wrote a strongly worded letter of objection (unbeknownst to me and saying that the practice of allowing non-conforming structures to be built prior to obtaining approvals should not be a practice that should be condoned) and before I submitted my own Letter of Objection and visuals. We granted neighbor a 90 day delay of hearing so he could attempt to work out a compromise with no results. When the hearing resumed before Committee of Adjustment, (where I submitted a written update detailing the laok of progress in compromise talks since I was not able to attend) the neighbor's Agent promptly made 2 false claims before Follow Up hearing members who were told that: a compromise had been reached when there had been no discussions even close; and that their application was supported by the local councillor's office who they said they had spoken to after the Letter of Objection had been written and has since had a change of heart (Councillor's office have confirmed they only cautioned neighbor that they should proceed with the agreement of their neighbors). Councillor verified that they did not express support for neighbor's application and at no time withdrew their Letter of Objection.

I have a couple of days left to decide whether to file an appeal with OMB. The OMB approval was granted based on 2 misrepresentations made by their agent. As a result of neigbor's claim that a compromise had been reached, The C of A hearing did not delve any further into file showing my Letter of Objections; a Package of Photo evidencing impact; Notation by Senior Planner calling attention to C of A members to note that my house is the middle house in a row of 3. And the local councillor's Letter of Objection.

The C of A accepted compromise that I had not in fact agreed to) and a notice of decision was sent. We had asked for written details of any compromise detail they were proposing. None arrived. No discussions re. a compromise took place in the intervening 5 months between hearings.

I understand that OMB cases are mostly fought from a merely "planning" perspective. City Attorney's have agreed to take on my case since original letter of objection was filed by my local councillor's office.

Will these "mispresentations" made by my neighbour's agent that had the direct effect of causing "approval" carry any weight at the OMB appeal level?

I value your feedback.

RealGrouchy said...

Anonymous, I'm no lawyer, so I wouldn't want to give you legal advice. I strongly suggest you consult one--most will tell you it's not a good idea to get legal advice from the internet, and I'd have to agree with them.

I hope you can get an adequate resolution to your situation.

- RG>