Another original article by Dr. John Bacher, first published on JohnBacherPhD.ca.
Dr. John Bacher (PhD)
July 10, 2017
The Need for an Ontario Land Use Planning Board
The Preservation of Agricultural Lands Society
Dr. John Bacher
1. Province is to be Commended for Addressing Need to Reform Ontario Municipal Board (OMB)
The provincial government is to be commended for undertaking the difficult challenges of making improvements to legislation regulating the operations of the Ontario Municipal Board. (OMB) In general these reforms build on those introduced in 2005. Of these, most beneficial was the prohibition of an appeal a municipal council decision to prohibit the expansion of a human settlement area. PALS is of course pleased that this laudable reform was carried on in the proposed legislation. As expressed in our earlier comments, this needs to be further clarified. It seems strange that encroachments on designated environmental protection areas are not treated as expansions of the human settlement area.
2. PALS is Pleased with Most Proposed Changes to OMB
At the outset, PALS wishes to make it clear that we support all, with two exceptions, of the proposed changes to OMB. Changes to restrict appeals, have more transparent procedures, eliminate appeals of ministerial zoning orders, and provide financial, legal and planning support to appellants acting in the public interest in championing provincial policy are long overdue. PALS also supports the reform that instead of “good planning”, decisions of an appeal body should be based on lack of conformity to provincial policy.
PALS has been involved in the development of provincial policy since our founding in 1976. We have taken part in numerous public consultations regarding planning policies. Throughout that time our OMB appeals, most of them successful, have been provoked because of violations of provincial policy. These appeals have also become a discovery expedition into fields of provincial policy which often tend to be ignored by planners working for municipalities and the private sector.
3. PALS Believes Good Planning Means Conformity to Provincial Policy
The use of the term “good planning” by the OMB is essentially an archaism to the period before 2005 when the extent of provincial policy was much more limited than it is today. Earlier there was nothing comparable, for instance, to the 2005 Natural Heritage Implementation Guidelines, which can be if actually applied, a sound basis for good planning in both rural and urban areas. By protecting water quality these guidelines would safeguard as one of the most our most dedicated members, Jean Grandoni, has stressed, fish habitat. The protection of streams from storm water pollution due to urban sprawl which poisons aquatic life, is one of the most vivid ways in which all of our rural landscape is food lands.
One of the basic principles of the Natural Heritage Implementation Guidelines is the protection it gives to the headwaters of streams. This also should protect considerable areas of rural land from urban expansion. PALS’ has found however, that the attitudes of municipalities have made this policy a ‘dead letter’.
The challenges of protecting stream headwaters is shown by PALS’ experience in a 2014 OMB hearing regarding the Ontario Motor Speedway in Fort Erie. This was a difficult experience for us, since our proffered expert witness, Dr. Hugh Gaylor, was not permitted to give opinion evidence as a planner because of his one-year membership in PALS. More seriously however, the headwaters of Miller’s Creek were permitted to be turned into a massive parking lot, since the planning instruments were manipulated so the motor raceway was not an urban expansion but a “special policy area.”
Long after the hearing was concluded, PALS’ learnt that there is a provision for special policy areas in the Provincial Policy Statement (PPS). It has nothing to do with putting parking lots over headwaters on agriculturally zoned and designated lands. The term applies to areas which are in floodplains but are already urbanized.
Before the current guidance of provincial policy, it was understandable why the OMB had to in effect invent its own policy to ensure good planning. For many decades, even after the devastation and loss of human life in floodplains caused by Hurricane Hazel, there was no formal policy to compel zoning to prevent development on these hazardous lands. Despite formal policies that exist today however, threats to such areas persist.
4. Large Swaths of Provincial Policy Not Embedded in Municipal Plans
What is of great concern to PALS, is that while the basic concepts of good planning are well embedded in provincial policy, they are not well reflected in land use planning guidelines approved by municipalities. One disturbing aspect of this failure, is to properly protect the headwaters of streams as mandated by provincial policy. While decades old policies to protect fish habitat are slowly creeping into official plans, the same cannot be said for policies mandated by the most recent version of the PPS. These are policies to ensure adaptation and mitigation for climate change and to protect imperiled bio-diversity.
PALS’ took part recently in extensive Niagara Region public consultations in its mandated five year review of its official plan. During this period there was no discussion of the need to update the plan to implement these new policies of the PPS.
Some may suggest that for both climate change and bio-diversity, what is needed is simply to follow older policies of the PPS and protect large blocks of forested habitat and rural land from sprawl. This approach however, is inadequate. Many threatened wildlife species, have more specific habitat needs.
For instance, PALS’ has become familiar with the habitat requirements of vernal pool obligate species, such as the Western Chorus which in Ontario, is experiencing a marked population decline. Many forested areas which provided habitats for these frogs in the past, now fail to do so because of drainage. Municipal plans need to implement the new PPS plans for bio-diversity, which have been effectively shelved.
5. New Policies for Intervenor Funding Show Need for Ontario Land Use Planning Board
Given the stubborn refusal of municipalities to implement PPS policies on biodiversity and climate change, and the welcome new provisions for intervenor funding, PALS expects that many appeals will be made to what is planned to be called the Local Appeals Tribunal (LAT). The proposed new name for the tribunal however, LAT, does not give sufficient dignity to the important matters it will be adjudicating. A more appropriate one would be the Ontario Land Use Planning Board.
The term OMB has its origins before the Planning Act of 1946. For almost four decades, its adjudications based on land use planning were confined to the municipalities, (entirely urban), that had special provincial legislation to conduct land use planning. Even after the Planning Act of 1946, land use planning did not get going in predominately rural areas until the passage of the comprehensive zoning by-law of Thorold Township in 1959, when it was approved by the OMB, following appeals,. A critical role in the passage of- this by law was played the Township’s Reeve, a subsequent founder in 1976 of PALS, Mel Swart.
Swart’s success in using Planning Act controls to restrict quarries played an important role in the creation of the Aggregate Policy of the Planning Act. Subsequently, both he as an Ontario Legislator and PALS played a major role in securing the agricultural policies of the act.
PALS’ deep involvement in land use planning and the OMB shows us why an appeal tribunal should clearly have an expression of the importance of land use planning in the long- term interest of future generations in its name. This would be most clearly expressed as the Ontario Land Use Planning Board.
6. Decisions of Ontario Land Use Planning Board Should be Final
PALS’ is opposed to the proposal in the draft legislation that alterations by a provincial appeals tribunal to a municipal council land use planning decision should , if a council continues to object after ninety days, require a second hearing in order to be upheld. In this regard our views are shaped by the OMB rejection of a proposed urban boundary expansion in the City of Niagara Falls in the watershed of the Ten Mile Creek. The council of Niagara Falls even had the temerity to appeal our OMB victory to the courts, which resulted in a cost award to PALS and Jean Grandoni. This appeal by the city is illustrative of the profound contempt municipalities in Ontario have for provincial policy. If found to be in violation of policy by a provincially appointed planning board , municipalities should not have a second hearing to argue their case.
An important role in our OMB victory was played by our lawyer, David Donnelly, who acts in effect as a policy advisor to many Ontario environmental groups. He has warned that the proposed double hearing process could turn the proposed LAT into a rubber stamp for municipal councils.
The victory of PALS and Jean Grandoni at the OMB was based on a number of violations of provincial policy. Critical to the victory was the testimony given under subpoena from PALS, of Mark Christie, a senior planner with the Ministry of Municipal Affairs and Housing. (MMAH) The essence of his testimony was that the urban expansion was not needed as it has been provincial policy since the 1980s that calculations of residential land supply should be made on an upper tier, (regional) basis. In opposition to PALS, the City of Niagara Falls and the Niagara Region argued that excessive land supplies in Port Colborne and Fort Erie should not be used to prohibit an urban boundary expansion in Niagara Falls.
Christie’s expose was one of many violations of provincial policy uncovered at the hearing. One was a failure to follow the protocols of the Canada Land Inventory, which require on-site soil tests when soil mapping results are challenged. It was also demonstrated that the agricultural policy was violated by the failure to consider lands of lesser capability in southern Niagara Falls. Another was to ignore the Niagara Region’s Official Plan’s implementation of provincial policy to protect natural heritage. An onsite visit by experts of all parties confirmed that the subject lands are a deer migration corridor. It also demonstrated that a forested area contained a vernal pool, which in violation of storm water management guidelines of the province, was proposed to become a storm water pond.
7. PALS Proposals are Modest Additions to Proposed Reform Package
In conclusion, PALS wishes to stress that our two proposed legislative alterations are reasonable and modest alterations to well-intended reforms. Municipalities’ failure to respond for many years to PPS policies and more recently policies for climate change, to curtail urban expansions, and the protection of bio diversity, show the need for an Ontario Land Use Planning Board whose decisions should be final.
Reproduced with permission. JohnBacherPhD.ca