Photos of the Event

StrategyCorp Presentation

Introduction
On January 16, 2018, ULI Toronto hosted a sold-out panel discussion on navigating a post-Ontario Municipal Board (OMB) world. The discussion sought to examine the impact of Bill 139 and its effect on the development approvals process. John Matheson, Principal, StrategyCorp, moderated the discussion with Jane Pepino, Senior Partner, Aird & Berlis LLP, Leona Savoie, Vice President, Hullmark Developments Ltd., Emma West, Partner, Bousfields Inc., and Councillor Kristyn Wong-Tam, Ward 27, Toronto Centre – Rosedale participating as panelists. The event was hosted by the Toronto Region Board of Trade and sponsored by Aird & Berlis LLP and StrategyCorp.

In December 2017, Bill 139 received Royal Assent and is expected come into force in spring 2018. Its intention is to give municipalities greater control over the development policies that they implement and the decisions they administer. The panel discussed several key themes, including the impact of the bill on developers, the potential power shift among interested parties and the role of local elected councillors in affecting development and planning outcomes.

Bill 139 Impact
The panel concluded that the impact of the new post-OMB system is difficult to predict, since the application process has changed while regulations remain the same. The panel agreed that under Bill 139, a greater amount of upfront preparation time, public and private consultation, paperwork and cost will be incurred by developers.

Under the new first appeal of a local council decision, no party will be permitted to call evidence or examine witnesses. Instead, the Local Planning Appeal Tribunal (LPAT), which is appointed by the Province, will review evidence based on the largely written record provided to the local council at the original submission. Interested persons and groups will have to retain experts to prepare and submit detailed reports and respond to other parties’ materials at this early stage as well.

Consequently, the panel concurred that a great deal more strategy, time, consulting, analysis and studies (including environmental studies) will be needed at the pre-submission level. This means more paperwork and cost to submit a clear and concise report. Applicants will likely be required to host additional upfront community meetings, consultations and discussions with city planners.

Other interested parties will likely incur additional costs as well. Special interest groups will need to be more adequately prepared for the consultations and written submissions. Moreover, because city planners are expected to have a greater impact, this will be accompanied by a greater workload prior to the written submission. The panel reiterated the need for preparation and collaboration prior to submission as no oral submissions will be allowed during the appeal process. Councillor Kristyn Wong-Tam noted that city planners are already busy with appeals and the city budget may not reflect the added workload, which could slow down the process. However, she stated that the benefits outweigh the costs and developers need to follow the process and work with the City. They can’t run to the OMB to jump start the negotiation or application process, she said.

Potential Power Shift
The new bill’s objective is to return the decision-making powers to the accountable local councillor. The OMB may have frustrated local interest groups since it was perceived by some as permitting development without consideration for local councillors, by-laws or local residents.

The panel agreed that local planners will have more sway, but the private industry panel members opined that the province (like the OMB) will still remain a considerable force in the decision-making process.

Among interested parties, two panelists stated that city planners will likely have greater influence. For the original submission, developers will need to initiate dialogue with the planners to help finalize the written submission. In addition, the developer or their representatives only have five to ten minutes to present a complex development to council. Therefore, council members will rely more on their planning department to review, assess and conclude if the development is supportable. Aird & Burlis LLP’s Jane Pepino expressed concern that the limited presentation time could lead to legal challenges since the builder may not be afforded due process to explain a complex development.

Nevertheless, several panelists agreed that the provincial government may still exert influence. All applications for zoning by-law amendments and most applications for official plan amendments remain appealable. While city councils would be given the opportunity to make a new decision, the tribunal is still given the opportunity on a second appeal to craft a new decision without deference to councils, even when supported by professional planning reports. The panel pointed out examples of conflicts, such as provincial plans supporting greater density or commercial development around Metrolinx while older City by-laws restrict land use to low density development. The panel expects further tests, appeals and decisions will determine who exerts greater influence. Overall, the provincial plans are big and broad, but local government feedback is needed.

Councillor’s Role
The role of the councillor in the process has slightly changed because they are given more responsibility under the new system. The result is that developers will need to work more with council prior to submission. However, the private business panel members flagged areas of concern, including greater upfront costs and fairness risk. Smaller or rural municipalities often do not possess the in-house capacity to critically assess planning applications and supporting technical documentation. As a result, they may be reluctant or unwilling to spend their limited resources on retaining outside consultants or counsel. In addition, councillors are elected officials and may be subject to pressure from their NIMBY constituents. Nevertheless, Councillor Kristyn Wong-Tam noted that councillors generally side with the recommendations from their planning departments.

Conclusion – The Panel Outlook is Optimistic
Overall, every panelist was optimistic about the Bill 139 changes. For the process to work, the panel concluded that developers need to adapt to the new system, collaborate more and work harder to educate various public and private groups. Dialogue is key, especially with the local planning department. Finally, municipal councils need to be informed and outdated bylaws need to be updated. Overall, everyone needs to adapt to the impending changes.