An expert witness in urban design and architecture shares his views on the always controversial Ontario Municipal Board.
Words by Michael Spaziani

If you have read this far you probably know what the OMB is. If not, here’s a quick summary. The OMB, the Ontario Municipal Board, is a quasi judicial body created by the Provincial government under the Ontario Municipal Board Act, mandated to settle local development and planning disputes. Its purpose is to assess such disputes in an orderly and unbiased manner to ensure that local citizens, councils and developers follow their own local Official Plans and zoning bylaws and provincial Policy Statements. Expert witnesses must be qualified by both parties and are then cross examined in “Perry Mason” style, having sworn to tell the whole truth.

In my research I discovered that the greatest authorities on the OMB are those that have never attended a hearing but have borne the brunt of a decision that did not go their way. I was amused to see the vehemence of such OMB detractors. On the other hand those that had attended many hearings tended to see both the good and bad decisions that the Board had issued over the years. At this point I must declare my bias. I am in the latter camp. I have seen too many hearings where opponents, whether they be citizens, developers or councils, make up their own wacky version of the local Official Plan to suit their purpose.

To illustrate my point I will share a little story. The names of the places and guilty parties have been altered to avoid further legal proceedings.

In a sleepy town just east of a great metropolis, a certain marina owner had this idea that she could develop her existing marina and waterfront property into a combination condominium development and marina facility. The sleepy town had done their homework and created an Official Plan complete with urban design imagery and goals such as “Lake Ontario Nautical theme” and “public waterfront access”.

A design plan was commissioned with the following components; two and three storey townhouses, live-work units of the same scale animating a seasonal summer-only main street, a public promenade to the water and new boat docks, haul out facilities and winter boat storage yard. Everyone loved it except the mayor, a local councillor and a few vocal ratepayers who mounted a loud and boisterous opposition. The planners and urban designers at this town, however, were supportive because it fit the clear intent of their Official Plan.

Council turned down the application in spite of a positive planning staff position.

Now you can imagine the outrage of the marina owner. She thought she was doing the right thing with the right building, scale and the public benefit of waterfront access. So off we go to the OMB to have the matter settled. It was a short hearing, only two weeks, with the usual team of “expert witnesses” in the fields of planning, urban design and traffic. By the way this being a waterfront development on a protected waterway, all environmental and conservation authority matters had already been settled.

The OMB heard the evidence and ordered the approval of the development.

The marina owner thought she was treated very badly, having heard the supportive tone of the judge (not really a judge, just a “member” of the OMB) and asked her lawyer if he thought that “costs” could be claimed against the town. He did and he tried. Their action failed. The matter was settled and the project was built and has been highly successful.

But the story continues.

Four years later, I get a call from the town asking if I would submit the project for an urban design award. At this point the project is built, the public is happy but the mayor and councillor who opposed the development originally have been voted out. Apparently the new mayor and planning staff really like the project. So I chuckle to myself and think there is no way we could win such an award but we will submit the design anyway just for fun. And we win a “Civic Award for Urban Design”.

I mention this to illustrate how the OMB can function with positive results. What I did not tell you was that the real reason for the impasse at the sleepy little town was due to a decade long personal vendetta between the mayor and the marina owner. This underscores a major reason why there must be an impartial third party that can act as an appeal body when local development matters are disputed.

But, my good friend John grumbles, why can’t that body be established at a local level, where the policies are made and protected by those who must live with the consequences?

Sounds good in theory, John, but what do you do when local politics and local business dealings put local impartiality into question? Mississauga has been immersed in such discussions recently. I think we should be careful what we wish for.

Perhaps, says John, we can establish an independent body of unelected loyal citizens like the Committee of Adjustment who will rule on development disputes. While my experience at the Committee of Adjustment has been excellent, I am amused when I see Toronto calling for a major revamping of their Committee due to accusations of bias in favour of development, just as Mississauga Council calls for an abolition of the OMB for the same reasons. If it cannot happen locally and it cannot happen provincially, where do we go to get these development disputes settled? Some have suggested Provincial Courts where civil suits are settled. Again, be careful what you wish for.

I can summarize these OMB disputes as developments that either seek too much height and density, and developments that seek too little height and density. Both can be abominations. Examples of the latter include the one storey retail plaza at Lakeshore and Helene St. and the one storey drug store on the west side of Port Credit. Both of these projects should have been at least 2 storeys with more than a singular retail use.

Examples of the “too much height” problem are usually much more widely known and controversial. You may know of the original St. Lawrence starch lands OMB hearing where multiple towers lined the waterfront. What you see today is the result of an OMB-ordered height and density limit of six and three storeys south of Lakeshore. I think the OMB got that right. This city and other organizations have given it many awards.

We are all waiting to hear the outcome of the OMB hearing on the Satellite restaurant site in Clarkson where a fifteen storey tower is proposed, contrary to the Official Plan for the area. This one is interesting given that there is a Provincial Policy Statement supporting such density near a GO station. City and Province are at odds on this one. It will be an interesting ruling.

In my OMB experience I have come upon enlightened board members who have truly impressed me. On the other hand I have witnessed really bad OMB members who have demonstrated complete ignorance of Official Plans and the Planning Act. Sadly I cannot name them.

In my view, the OMB is here to stay. I am, however, encouraged by a new direction that the Board has been trying recently, namely Mediation. When a local dispute arises, the OMB assigns a skilled mediator to attempt to resolve the case without a full blown prolonged hearing of experts. I have seen two remarkable outcomes recently where all parties walked away content with the solution. This is a very positive step, where “smart development” can proceed with mutual support.

We can avoid blatant bad decisions by getting our best plans made locally with wide public consultation. When we are surprised by unforeseen development, we should work collaboratively and mediate the best solutions for all, with or without the OMB.

I also like the words of that great municipal planner and former Beatle John Lennon who sang, “Life is what happens to you while you’re busy making other plans.”