PALS response to the reform proposal “Review of the OMB”

Please find below the complete response from the Preservation of Agricultural Lands Society, PALS:

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Brief by Preservation of Agricultural Lands Society (PALS)
in Response to Proposed Reforms to Procedures Ontario Municipal Board.
November 25, 2016, by Dr. John Bacher, (PhD)

1. PALS welcomes thrust of OMB reform document
PALS welcomes the basic thrust of the OMB reform proposal, “Review of the OMB.” In general the changes will facilitate improvements that will encourage more orderly land use planning in Ontario. There are however, some additional suggestions that we are making for OMB reform.

2. Province needs to build on reform of 2005, re removal of “Refusals and Non-Decisions on Applications for Urban Boundary Expansions”
One of the positive aspects of the Provincial reforms of 2005 was the change in powers of the OMB as specified in the comment on page 16 in the discussion document. This change protects municipalities from having their decisions to refuse urban boundary expansions subject to an OMB review.

The 2005 reform reflects the basic reality that there is sufficient land within urban boundaries to accommodate at reasonable densities, which are supportive of transit , projected needs for various types of urban development. OMB hearings should not be used by developers to challenge good planning decisions by municipal councils to constrain sprawl.

One of the strangest, but important, aspects of PALS work relates to being contacted by individuals who have been told by their municipal councillors that they did not wish to turn down an application to expand the urban boundary of their municipality since they did not wish to have their decision overturned by a costly OMB adjudication. In this regard, we have informed those who wish to protect agricultural land that the OMB does not have jurisdiction to make such a decision. We were contacted specifically by Ella Haley, a farmer and University Professor from the consolidated County of Brant, that councillors were complaining about the prospect of an OMB appeal. Once she informed the Brant County Council that they had the power to turn down the proposed expansion of urban boundaries for a residential subdivision, the expansion request was denied.

We have seen in the past the 2005 reforms described as expansions to what the Planning Act and the Provincial Policy Statement (PPS) call the “settlement area.” The language on page 16 regarding “urban boundary expansions” seems to suggest that development outside urban boundaries, which do not require urban piped services, and can be accommodated by septic tanks, are permitted. In this regard, we recently were contacted by the Friends of Simcoe County Forest about a proposed removal of agricultural zoning to permit the construction of a waste transfer station on lands that are currently zoned for agriculture. It is claimed that the replacement of this agricultural zoning by one that would permit an industrial use does not constitute an expansion of the settlement area.

There needs to be clearer language to define settlement areas. In this regard, there needs to be a change to the Planning Act which clearly specifies that lands currently zoned/and or designated agricultural are outside the settlement area. Therefore decisions by municipal councils that refuse to change these agricultural zonings/designations, should not be a subject to OMB appeal.

There is another aspect of the concept of the settlement area which should be considered as part of the OMB review. While agriculturally zoned and designated land appear to be outside of the settlement area, such a concept does not apply to environmentally protected lands. This distinction is not reasonable since environmental designations are more restrictive than agricultural ones, and therefore, are less open to human settlement.

The land use planning system in Ontario needs to give comprehensive support to municipalities that seek to curb urban sprawl. Consequently all lands that are currently agricultural/zoned designated, or environmentally/zoned designated should be considered outside the settlement area, and not subject to OMB appeals of council decisions to protect them.

An additional reform that should be made is to protect municipal council decisions that safeguard what provincial policy describes as the “Core Natural System”. These areas include Valley lands, flood plains, wetlands, and provincially significant forests. They have been mapped and identified by strict criteria in municipal official plans.

Ontario’s rural and natural landscape is an interconnected system. Agricultural land is not only important for the food it produces. Agriculturally zoned/designated land provides important ecological benefits. Urbanization of agricultural lands pollutes streams and destroys fish and amphibian habitats. It also destroys the habitat of deer, wild turkeys, and other species, some of which are threatened such as the Bobolink, Meadowlark, and the Monarch Butterfly. These benefit from agriculture landscapes, especially pastures.

In reality the agricultural and urban natural habitats are linked. In even apparently isolated natural habitats in urban areas, wildlife are able to make use of natural connections such as hydro corridors and railway rights of way to move between urban and rural environments. Most of the core natural area is on the fringe of urban boundaries, providing excellent buffers between agricultural and urban uses.

Sprawl is the biggest factor threatening biodiversity in Ontario. One of the most practical steps the province can take to combat it is to provide clearer language its definition of settlement areas where decisions, or what planning language describes as non-decisions by municipal councils, cannot be appealed by developers to the OMB. This should include all agricultural/zoned designated lands, environmentally/zoned designated lands, and areas that are identified in municipal official plans as part of the Core Natural System.

3. Since OMB has power to refuse hearings, cost awards should not be granted.
Currently, the OMB has the power to refuse hearings when no proper land use planning reason has been set forth for it by appellants. This power, should eliminate cost awards. If the hearing in question had not been triggered by a legitimate planning concern, the OMB should not have entertained it.

OMB hearings cannot be triggered by what is termed as “as of right” development. They involve some change to the existing planning system, established by municipal zoning and official plans. People who seek to involve themselves in this democratic process of rights established by the Planning Act, should not be deterred by cost awards.

4. On-site visits should be required.
As an organization whose basic purpose is to protect Ontario’s rural landscape, PALS is quite committed to the notion that OMB hearings should involve site visits by arbitrators. Our rural landscape is too precious to be destroyed without being seen by those who ultimately determine its fate.

5. Ontario government should defend OMB decisions in court.
PALS, along with Jean Grandoni, was recently involved in an important OMB decision which rescued the shadow fruit belt south of the Niagara Escarpment and the watershed of the Ten Mile Creek, which provides important amphibian habitat, from an urban boundary expansion. This decision, which was only made possible by the payment of substantial sums in legal and expert witness fees, has been appealed to the courts. Such OMB decisions which reflect the public interest in curbing urban sprawl, protecting the agricultural land base of Ontario and its environment, should be defended in the courts by the provincial government.

6. OMB should be required to use ‘court’ language/terms to define expert witnesses.
Unfortunately, one of the most contentious elements of OMB hearings can be defining an expert witness as suitable to give opinion evidence in the area of land use planning. In this regard, the OMB should take direction from what has been defined in the courts, as someone who is able to provide what is termed, “specialized knowledge.” This knowledge can be obtained from either formal training or experience. The relationship between a party and the proffered expert should not be used to deny the benefit of an adjudicator of this specialized knowledge.

7. PALS supports suggestion of public funding for lawyers/expert witnesses .
PALS supports the proposal of public funding for Lawyers/Expert Witnesses. In this regard there has been some experience which should provide a guidance. This is the Model that was used in the past by joint hearings conducted with the Environmental Assessment Board. It was required that presentations be made to a panel which could determine if the intervention supported the public interest.

The critical importance is the funding of a peer review of the work of the municipal planner who provided guidance to the decision of council being reviewed by the OMB. Without such a review the OMB simply becomes a rubber stamp for the decisions of the municipal council.

Restoration of multiple adjudicators in hearings would be of benefit .
In recent years, the use of multiple member hearings has virtually vanished at the OMB. PALS has found that this has harmed the adjudication process and that a return of multiple member hearings would be beneficial.

8. OMB panels should include expertise in landscape ecology.
Increasingly, PALS interventions at the OMB are guided by what can be best described as an approach guided by the principles of landscape ecology. We are not aware however, of any current adjudicators who have any experience in this scientific discipline. This situation requires urgent correction.

The reason why the province has established the OMB is because it provides an opportunity to provide specialized expertise in a way the courts do not. It is therefore important to have OMB members that have formal training in such relative fields as agronomy, watershed protection, storm water pollution and wildlife habitats.

9. PALS supports proposed reforms.
In our comments PALS has attempted to focus within the terms of our mandate which has shaped our interventions at the OMB. We have not therefore commented on all the proposed changes. We have added however, additional comments based on our work since 1976 in protecting Ontario’s rural landscapes, in which our interventions at the OMB have played a vital role.

Reproduced with permission JohnBacherPhD.ca

Pdf of article available here.

 

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