The City should appeal the OMB Decision on OPA 150

The City should appeal the OMB Decision on OPA 150
Posted on March 16, 2016 | Erwin Dreessen | Written on March 15, 2016
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Author's Note:

Author's Note:

Last October, City Council (with three dissents) agreed to a settlement with GOHBA and BOMA on their appeals of the 2014 Development Charges By-law.  The settlement made major concessions that will deprive the City of millions of revenues.   And the City is to bring in amendments by mid-2017 that will negate the major improvement made possible by Bill 73.

On February 23, 2016, the OMB issued a Decision on motions brought forward by Taggart and Walton that again puts the development industry in the driver's seat.  See our letter to Council for the full story.

Neither the DC settlement nor this atrocious OMB Decision have attracted any media coverage to date.

Dear Members of Council,

We received, with dismay, the OMB Decision dated February 23, 2016, following the August 6, 2015 hearing of a motion by OPA 150 appellants Taggart and Walton. While "not prepared at this time" to allow the appeals against OPAs 150, 140 and 141 in their entirety, the Decision sides with the movers in all other respects, to wit:

- all hearings on the appeals are adjourned sine die until the City completes its Employment Lands study and the LEAR review;

- OPAs 140 and 141 are to be considered part of the Planning Act's section 26 Comprehensive Review and therefore subject to the section 26 consultative process;

- the City is to review its adoption of a 2031 planning horizon as opposed to a 2036 horizon;

- whether OPA 150 goes beyond what section 16 mandates is to be subjected to a full hearing.

The Decision does not demonstrate any weighing of the evidence: Four pages are devoted to the motion, its grounds, the list of documents, and the City's response; two pages of "Findings" follow which are mere assertions. We submit that this is well short of the duty of any court or tribunal to provide a rationale for its decisions.

Further, the Findings appear to make significant errors in law, including:

- they assert that section 26 "requires" the completion of the LEAR review and Employment Lands study, whereas the Act only requires that the corresponding policies be "confirmed or amended." Council did confirm them, finding that there was no urgent need to amend them;

- they assert that completion of the LEAR review "is critical to the adjudication of the debate over the expansion of the urban boundary," ignoring the fact that in the context of OPA 150 there is no such debate since OPA 150 did not modify the urban boundary.

Members of Council, this Decision is an affront to your authority:

- there was no urgent need to complete the Employment Lands study and the LEAR review as part of the 2013 Comprehensive Review and work carried out since then confirms the correctness of that conclusion: the Employment Lands study is now nearing completion and is finding that there is sufficient supply of land till at least 2041; the most recent vacant residential land survey found that Ottawa has a 24-year supply. The LEAR review -- a complex process that should not be rushed -- continues;

- ordering a "full hearing" on whether OPA 150 exceeds what section 16 mandates runs the risk of finding major sections of the OPA invalid. This could include the many amendments concerning building heights;

- adjournment of the hearings throws Council off its normal time table which would see the next Comprehensive Review completed in 2019.

The community has a right to expect the uncontested parts of OPA 150, 140 and 141 to become law as soon as possible. It has been over two years since previous Council approved OPA 150. A way must be found to bring the uncontested parts into force without further delay.  Unlike in previous OP review rounds, to date the City has been unable to scope the appeals so that uncontested amendments could come into force and the hearings could proceed in an orderly fashion. This Decision now derails that process -- and the next round of OP review -- completely and lets certain developers set the agenda.

We therefore submit that you should direct Legal Services to appeal this Decision to Divisional Court.

Respectfully,

Erwin Dreessen,

Co-chair,

Greenspace Alliance of Canada's Capital

Since 1997, the Greenspace Alliance has worked with community organizations and individuals to preserve and enhance natural areas in the National Capital area, including public and private green spaces, wetlands and waterways. We believe that urban greenness is essential for a community's quality of life,  contributing to our personal, social, economic, cultural and spiritual well-being. It also connects us with the natural and cultural history of our region.

Web site: http://greenspace-alliance.ca/index.php/2016/03/12/greenspace-alliance-urges-council-to-appeal-omb-decision/

Twitter: https://twitter.com/GreenspaceA

About The Author

Retired economist (Ph.D., Berkeley, 1972) Co-founder (1997) and former chair of the Greenspace Alliance of Canada's Capital.  Wrote an annotated bibliography on what sustainability means for businesses (2009) --... More