Jim Young on alternatives to Local Planning Appeal Tribunal.

opinionred 100x100By Jim Young

September 12th, 2019



Burlington City Council wants to eliminate LPAT (Local Planning Appeals Tribunals), formerly the OMB (Ontario Municipal Board). This matters because in Ontario, appeals to the LPAT/OMB undermine the ability of municipalities to reconcile growth targets with resident wishes. Appeals also cost municipalities, the province and developers massive amounts of money every year in delays and legal costs.

First, some history of LPAT/OMB and “As of Right Zoning”, the concept that governs land use planning in most Canadian cities.

The OMB was created in 1906 as the Ontario Railway and Municipal Board to expropriate land for the expansion of Ontario’s rail network. Renamed the OMB in 1936, it was revised again in 2009/10 as part of Environment and Land Tribunals Ontario. Given its genesis in land expropriation, it is little surprise it was perceived as a developer friendly body where builders could have unfavourable municipal planning decisions overturned.

Formed in 2018 to redress perceived OMB bias, LPAT was, supposedly, a more resident friendly land use appeals body. However, with the same provincial adjudicators and planning act rules, there was nothing “local” in Local Planning Appeals Tribunals.

In 2019, with little case history or jurisprudence, LPAT was drastically revised under Ontario’s More Homes More Choice Act (Bill 108), reviving the old OMB disguised under the friendlier sounding LPAT name.

It is worth noting that no other province or territory in Canada has a similar body adjudicating municipal land use planning or developer/resident disputes. Land use planning in most Canadian and North American municipalities is regulated and operates under a planning concept known as: “As-Of-Right Zoning.”

Prior the introduction of zoning in the 1920s, land-use regulation was hit or miss, planning occurred on a case by case basis. Some areas had use, height and density limits, others didn’t. Rules differed from area to area with no cohesive plan clarifying what could or could not be built. Decisions were subject to suspicion of corruption and influence by developers. Residents never knew what might be built next door to them in the future.

To resolve these conflicts a new concept for regulating urban land use was developed: “As-of-Right Zoning”. Municipalities were delineated as zones, subject to appropriate use and density rules as laid out in a city’s official plan. If developers stayed inside the zoning rules within that plan, they could build without further regulatory interference “as-of-right”. This provided certainty about what could be built and where. Developers avoided delays, unforeseen bylaws or messy public hearings which all added to the cost of housing. For residents, it meant no surprise strip clubs or bingo parlours next door.

Meanwhile in Ontario, the ability to appeal municipal land use plans and win at LPAT/OMB tribunals meant the final say on planning and zoning amendments remained firmly with developers. It forced municipalities to return to ad-hoc, project by project land use planning with all the concurrent legal costs and the knock on effect on housing affordability. It is understandable that municipalities, who shoulder responsibility for land use planning and have a better finger on the community pulse, resent the intrusion of LPAT/OMB and would like it rescinded, especially given the greater powers granted in Bill 108.

Critics worry that in the absence of an LPAT/OMB appeals process, who will adjudicate what constitutes reasonable development as opposed to NIMBYism from local residents? Won’t rescinding LPAT/OMB leave all parties without a means of conflict resolution? I suggest not necessarily.

Burlington already has three citizen advisory committees providing advice on land use planning. The Committee of Adjustment; appointed by Council considers applications for minor bylaw variances, land divisions and small project planning permissions.

Burlington’s Urban Development Advisory, a group of local planning, architectural, engineering professionals, provides impartial guidance to city and developers’ planning staffs on contentious land use and zoning bylaw amendments. The Sustainable Development Advisory advises council and developers on the economic costs and benefits of sustainability in land use and building designs.

If the province is serious about reducing costs and, given Burlington’s commitment to reasonable growth and density, might we adjudicate land use planning conflicts via a combination of these existing committees?

If we increase developer and citizen participation on them we could create an effective and truly local planning reconciliation system to address the legitimate concerns of all parties.

Replacing LPAT in this manner would avoid duplication, eliminate delays (often years), reduce legal costs for developers, municipalities and the province while improving housing affordability and keeping taxes down. All worthwhile planning objectives.

Jim Young 2Jim Young is a frequent opinion writer for the Gazette. He has delivered some of the finest delegations to city council – seldom acted upon but important nevertheless for they are then on the record. Search the Gazette under Jim Young

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5 comments to Jim Young on alternatives to Local Planning Appeal Tribunal.

  • david barker

    Jim, I sent this as an email to Ms McKenna on Sept 25th.

    “When are you going to hold a townhall type meeting where your constituents can discuss local issues with you in an open forum?”

    No reply yet, and to be honest I do not anticipate getting one, other than maybe a simple receipt acknowledgement

  • david barker

    Penny, would not either

    (1) a dedicated Land & Planning Appeals Court, based upon the Small Claims Court model, or

    (2) an LPAT tribunal comprised of experts who are resident in the municipality

    be the answer.

    Do not City staff just apply the rules as laid out in the bylaws, and then provide an opinion (positive or negative) on each aspect of the application as to its merit. The Committee of Adjustment made up of local residents can pass judgement as can the elected council.

    If we do not trust our elected officials to make decisions on our behalf, why do we bother to elect them. Certainly we should have more faith in them than we might have in an unelected body made up of political &/or patronage appointees. If an appeals body is needed surely the independent judiciary is where an appeal should be heard.

  • Penny Hersh

    There are a few provinces that have in place a system of checks and balances to make certain that good planning practice takes place. Decisions of this magnitude should not be made by City Staff and Councils alone.

    We hear that NIMBYS are always the problem with the approval of over maximization of development projects. My concern is more about city staff and councillors who feel they know better what the residents would like their community to look like and push their own agenda. This was seen in our previous council.

    There needs to be an independent body (Not like LPAT) to oversee planning decisions.

  • david barker

    Jim. That is a great article; clear and concise !

    You may have seen published in the Gazette correspondence between my self and Jane McKenna MPP AWOL on this subject. I queried with her the need for LPAT and questioned not only it being biased but also it being out of touch with the views of residents in any particular municipality.

    I suggested if LPAT is to remain, there should be an LPAT located in each municipality comprised of experts resident in the municipality. She ignored that suggestion as she ignores all other input from her constituents.

    I also suggested LPAT could be abolished and replaced by a land development court presided over by a judge with expertise in this specificly area of knowledge.The court would be similar to the Small Claims Court, so as to allow ease of access.

    A question for you. In her one response to my various communications to her McKenna stated there is an “LPAT” type body in Alberta (coincidentally a stronghold of the PC). Citing it as justification for LPAT her in Ontario. She of course ignored the fact that the other 8 Provinces and 3 Territories do not have such a body.

    Is McKenna correct about Alberta?

    As an aside I also suggested McKenna hold townhall type meetings with her constituents so to be informed of local sentiment about this and other subjects. As I said earlier, McKenna ignores questions or suggestions from her constituents, I assume from fear of crossing Doug Fraud.

    Your thoughts, please.

    • Jim Young

      Hi David. My understanding (not verified) is that Calgary has a more localised process than Ontario.
      I imagine Alberta wide the process is similar to Calgary.
      However, What Alberta does is uinimportant to us in Burlington.
      Doug Ford claims to be “For Tbe People” and for saving taxpayers money.
      Legal fees by LPAT (provincial cost) and municipalities must bs huge (difficult numbers to get) but maybe in tens of millions annually.
      Might municipalities be able to sell tbe idea to ths province based on those two Ford promisses? Particularly the savingsgs!
      Savings by developersers mighf improve affordability verh slightly.
      Time wasted by city planners on appeals preparation might go to real planning
      To get developers on board mighf mean beefing up their representation on local boards which is only fair and some leeway on city OP to make that attractive to them.
      Anything local must be an improvement on current LPAT bureaucracy and time consumption.

      I don’t see Jane McKenna being comfortable with town halls she relies on her sfaff too much and it shows in public forums. Nor will she be swayed by local opinion. Ford controls the whole agenda and the way to his heart is to give him boastable cost cutting victoriess. Like selling LPAT demise as a cost elimination.