Why changes to the OMB may force council to own its planning decisions

After a years-long process involving Ottawa municipal officials, community groups and landlords, a community design plan was approved for Wellington West.

Among other things, it called for a nine-storey landmark building at the corner of Wellington Street West and Island Park Drive.

And yet, at this very moment, a 12-storey condo tower is being planned for that exact spot. How did this happen? The Ontario Municipal Board, of course.

In one of its more bizarre decisions, the quasi-judicial tribunal said the builder, Mizrahi Developments, could have its 12-storey condo if the design included "an element of wow," leading one councillor to opine that the city "is not a wow factory."

Long story short, the 12-storey building got the green light, despite contravening the city's own policy for the neighbourhood.

It's exactly this sort of scenario that the sweeping changes proposed Tuesday for the OMB are meant to minimize. If passed at Queen's Park, the new rules would make it more difficult for the proposed Local Planning Appeal Tribunal, the OMB's replacement, to reverse city decisions.

There's only one problem: in recent years, the planning decisions that have enraged residents aren't OMB ones — the Mizrahi case being a stand-out exception. Instead, community outrage has been more about decisions made by Ottawa's own politicians.

Many progressive changes in overhaul

That's not to say that many don't welcome the OMB overhaul.

There's a lot to like in the reforms introduced by the provincial government yesterday morning — and spearheaded by Ottawa Centre MPP Yasir Naqvi, the province's attorney-general — especially for those who believed the process was skewed in the development industry's favour.

The new legislation, expected to be tabled later this spring, would not allow appeals on major planning documents, such as municipal official plans, and would restrict appeals of neighbourhood plans to within two years after they come into effect.

This move is important for two reasons, the most obvious being that it puts the final (or almost final) say on major planning issues in the hands of local governments.

A less obvious benefit is that major planning decisions made by city councils can be implemented much more quickly. As it stands, new policies are not officially in force if they're being appealed, which makes changing the rules cumbersome. For example, one amendment to Ottawa's official plan that was approved in 2013 is still under appeal today.

Appeal help for residents

A major win for community associations is the proposal to give community groups access to planning and legal help during an appeal.

This is a big deal for volunteer-based community groups that find themselves acting as planning activists for their neighbourhoods. If they want to launch an OMB appeal, they have to raise thousands of dollars to hire experts to represent them.

If the province is willing to step in, and depending on whom they actually hire — a heavyweight municipal lawyer, like an Alan Cohen or a Michael Polowin, would be ideal — helping community groups could go a long ways towards levelling the appeals playing field.

Culture shift

Perhaps one of the most interesting changes is the most technical-sounding: the elimination of the "de novo" principle at OMB hearings.

Currently, the OMB hears a planning issue almost as if no previous council decision existed (hence "de novo", Latin for "from the start").

Each side makes its case for why a zoning should or should not go ahead, each side uses existing city policy to make its case — most policies leave some room for interpretation — and the OMB delivers what it believes is the best planning decision.

That doesn't sound unreasonable, except that, as some have successfully argued, an appeals tribunal should not be making planning decisions.

The new tribunals will now be charged with reviewing the decisions councils make — rather than hearing the entire planning case anew — and considering solely whether elected officials followed their own municipal plans.

Council votes against own planning policies

Which they often do not.

Indeed, council is known to vote against its own community development plans, secondary plans and even official plan designations, based on the recommendations of the city's own planning staff.

In the last month alone, Ottawa's city council approved an eight-storey building for the Glebe, an area officially designated as a traditional main street, where the maximum height allowed is supposed to be six storeys. Council also gave the green light to a 22-storey tower on Scott Street where a local — if dated — planning document also called for a maximum height of six storeys.

Why did the majority of city council vote for these two plans, which infuriated their respective communities? Why did planning staff recommend these changes?

The staff reports refer to the city's general aim of intensification. But talk to councillors and staffers on background, and they'll tell you there's a sense that if city planners do not come to some sort of compromise with developers, the issue will end up at the OMB.

This may be true in some cases. In other instances, however, the OMB is a convenient excuse for politicians.

Sure, a councillor might say, I'd vote against that eight-storey building in the Glebe — but then we'd probably lose an appeal at the OMB and waste taxpayer money doing it.

New rules will force council's hand

If the new legislation really ends up making appeals more difficult — and it'll take a few years to be able to know if that's the case — then councillors and planning staff will no longer be able to hide behind the OMB.

Instead, they'll have to do their jobs better. They'll have to adhere to the city's actual policies. And if those policies are out of date, they'll have to update them instead of making spot zoning decisions on the fly.

The changes to land-use planning appeals aren't about limiting development. There's even a provision to protect formal intensification plans around transit stations from appeal, a sort of anti-NIMBY clause.

What the new rules are about is more certainty in planning, something Ottawa's council has been promising for years. Maybe the new provincial rules will force local politicians to deliver on that promise.