Law Times

PAGE 10 City of Toronto may need appeal body Lawyers eye changes affecting OMB BY HELEN BURNETT Law Times F ollowing amendments to the Planning Act last year, mu- nicipal lawyers are keeping an eye on several changes that af- fect the Ontario Municipal Board, including plans that the City of Toronto may have to set up its own appeal body, which if created, would ultimately take some pro- ceedings away from the OMB. Bill 51, which came into effect last year, brought in a number of comprehensive amendments to Ontario's Planning Act, including when and whether a planning ap- plication is considered complete, and also giving municipalities the ability to provide for a local appeal body, rather than having some de- cisions go to the OMB, says James Ayres, a partner with the munici- pal, planning, and environmental group at Cassels Brock & Black- well LLP in Toronto. Section 115 of the City of To- ronto Act, which came into effect on the same day as Bill 51, gave the city the power to establish its own appeal panel, with the re- striction that its members may not be council members, city staff or members of the commit- tee of adjustment, according to a memorandum of background in- formation on the subject issued by Coun. Peter Milczyn. While the city has had the power to set up its own local ap- peal body from decisions on minor variances or consent to sever for awhile, at a meeting of the planning and growth management commit- tee on June 5, it was requested that a councillor-staff working group consider the staff and financial re- sources needed to establish an ap- peal panel, the fee structure, the size and qualifications and criteria for appointment of members to the panel, says Leo Longo, practice group leader of the municipal and land use planning group at Aird & Berlis LLP. It was also recommend- ed that the working group report back to planning and growth com- mittee in the fall. The motion was approved by the committee. "It looks like this initiative has some traction, so that's another aspect that the province has given to the City of Toronto and indeed other municipalities," says Longo. If created, such an appeal body would take away appeals from the OMB's docket that come from the city's committee of adjust- ment. For example, complaints over a variance granted that al- lows an office building to go an extra three stories, or a neighbour who builds an addition on their home that is too close to the side lot line currently go to the OMB, but if the city set up its own ap- peal body, the local board set up by the municipality would han- dle them, says Longo. The Ministry of Municipal Af- fairs and Housing says the OMB to establish an appeal body, and the political reality, he says. In addition to the municipali- ties' ability to set up a local appeal body, Bill 51 also introduced re- strictions set out in the Planning Act where there are no longer any appeal rights regarding an urban area boundary expansion unless the expansion was initiated by the municipality as part of its compre- hensive review of the official plan policies, says Ayres, which he notes is the one which is causing a lot of planners and lawyers concern. With regard to complete- ness of the application, there has only been one decision so far, in a case called Top of the Tree Developments Inc., which one interpretation might be that the board will take a narrow reading of the legislation, says Ayres. "In that decision, the board said would continue to hear zoning, official plan, site plan, subdivision, and development permit matters. "It just shows a level of inde- pendence and control that the city feels that it doesn't have now, but that it could somehow have by creating its own board," he says, which would still be decided ac- cording to the Planning Act. So far, Toronto is the only municipality that is really talk- ing about setting up a local ap- peal body, and even that has only been certain politicians, says Ay- res. The reasons for this are the increased costs to a municipality that their reading of the legislation, and I agree with the board's inter- pretation of the legislation, is that you have to set out in your official plan policies what it is that deter- mines when an application is com- plete. You can't just be dealing with it on an ad hoc basis," he adds. Longo says Bill 51 was a funda- mental change for the board, but not many decisions have come out that directly address some of the significant changes it introduced. "It's somewhat of a holding pattern to see how all of these Bill 51 issues are going to actu- ally play out," he says. "We don't know if the new lan- guage contained in 51 is having an appreciable difference in how the OMB approaches its task." At the moment, there is a three- month delay in getting hearing dates, which he says is great, as the wait to get hearing dates was six to nine months not too long ago. But, as the bill put an emphasis on landowners and developers fil- ing complete applications, he says there has been a change on how well-documented applications are becoming. Municipalities are now getting around to amending their official plans to stipulate what stud- ies may be required to constitute a complete application, he says. One potential worrying trend, says Longo, is the recent increase in the number of s. 43 review re- quests, which allows the board to rehear a matter before deciding it, or review a decision after it's made. There have been several court decisions that have come out re- cently, correcting the board on how the s. 43 process ought to op- erate, says Longo, and the board has felt the message of these cases, he adds. As a result, the board is currently working on revising the rules to clarify how it is going to handle the review process. At the moment, things are status quo until everyone sees what policies are going to be put in place by municipalities as well as the new municipal board rules, says Ayres. LT A solid foundation of municipal and planning law resources JUNE 30 - JULY 7, 2008 / LAW TIMES AUTHORITATIVE.INNOVATIVE.TRUSTED. Untitled-3 1 www.lawtimesnews.com 6/24/08 11:35:38 AM

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