The following is a guest post by Marc P. Kemerer a partner with Blaney McMurtry LLP in the firm’s Planning and Expropriation law group and the Architectural/Construction/Engineering Services (ACES) Group. Marc has acted for a number of large developers and regularly provides strategic and legal advice on large residential, condominium, retail/commercial and subdivision developments.

There is more going on at Toronto City Council than the fate of the City’s transportation system. Growing up means wanting to be independent in all ways, including by jettisoning the Ontario Municipal Board.

Last week Council voted by a wide margin to request the Province that it amend the Planning Act, the Heritage Act and the City of Toronto Act, 2006 to “abolish the Ontario Municipal Board’s (OMB) jurisdiction over Zoning By-law Amendments, Official Plan Amendments, Site Plan, Subdivision and Condominium Plan Approvals and Community Improvement Plans and appeals under the Heritage Act”.

In the alternative, Council requested that the City of Toronto and other like-minded municipalities be removed from that jurisdiction. Finally, Council voted to create a working group to explore the development of an appeals panel for the City of Toronto to hear appeals from Committee of Adjustment decisions.

The OMB has long been a thorn in the City’s side, overturning City policies and decisions on a wide range of matters including Planning Act section 37 benefits (obtaining “facilities, services or matters” in return for increased height or density), the preservation of affordable rental housing (in condominium conversion hearings) and what constitutes appropriate height and density. All municipal politicians like having responsibility over land use planning; in June of last year Mississauga City Council also voted to abolish the OMB.

Not surprisingly, the development community opposes such a move, fearing that abolishing the OMB will leave all development at the mercy of councillors more concerned about re-election than about appropriate planning decisions.

What would a post-OMB world look like? In past days it would have meant fewer and shorter condominium buildings (which would have meant less tax revenue for the City). It would still mean developers would be vulnerable to well-intended but expensive policies requiring the provision of transit passes and three bedroom units to encourage families with children (those costs would inevitably be passed on to purchasers). Developers would continue to be at the mercy of municipal decisions on development conditions, many of which are onerous and political in nature.

In a climate where sprawl is — literally and figuratively — discouraged, the condominium building boom has transformed the City’s downtown and neighbourhoods for the better, and the City, through Build Toronto, is itself seeking to become a developer of high towers, one would hope that the request to abolish the OMB is predicated on a recognition by City politicians that they are grown up enough to recognize the benefits development brings.

A world without the OMB would present at least one unintended consequence for our elected representatives: they could not blame the OMB for all of the City’s woes. Fearing that such blame would then be transferred to the Province over its intensification and other policy directives, the minority government in Queen’s Park may not be in such a rush to make local councils more independent after all.

We will continue to follow and report on this news.

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