Housing Requirements (For Canadian Planners)

[BKM]

Not sure which forum to place this in, but here goes:

I understand that Ontario has a "Municipal Court" that allows developers to appeal the decision of a municipality.

Now, read this from a recent report on California housing policy:

"Overall, however, California's Housing Element Law: The Issue of Local Noncompliance suggests that the state may need to consider a more direct approach to the housing shortage, perhaps by providing fiscal rewards to localities for greater housing production or for construction of certain types of units. Allowing builders a more
direct mechanism to appeal restrictive local zoning or other regulations is another alternative Lewis discusses."

What is your experience with this kind of appeal process? Particularly Canadian planners? Any comments on this rather radical attack on municipal self-government? Or, is this a necessary result of local governments' unwillingness to permit adequate housing?

Administrator's note - I moved this thread into the Make No Small Plans subforum, because it's not really off-topic FAC material.

 

[jmf]

In Ontario, they have the Ontario Municpal Board. Here in Nova Scotia we have the Utility and review Board (URB). Planning decisions by Council, ie applications for rezonings and development agreements, can be apealed by an agrieved party. Every decision looks carefully at the defintiion of aggrieved party and some appeals are thrown out when it is found the someone doesn't have grounds for appeal.

Appeals can only investigate whether or not the decision of council is reasonably consistent with the intent of the municpal planning strategy and land use by-law. Some old decisions of the board can be found here

So, really this appeal process does not address the issue you are talking about, unless the Planning strategy clearly states an intent to provide more housing and council is refusing the application.

In my experience, councilors are quite aware of the review process and try to avoid putting themselves into a situation where a decision might be appealed. I actually worked on a case where I was accused of forging a letter from the water utility which stated there was adequate supply for a proposed development (which I didn't). It quickly becane clear the opposition was to the proponent (and his come from awayness) not the project but rather than denying the application, which would have lead to an appeal which the proponent would have won, Council snet the application back to the planning committee "for more information". (Un)fortunately the proponent realized he wasn't wanted and withdrew his application.

 

[donk]

TP and OP can probably address issues of the OMB better than I can. i only have "school smarts" on this topic.(read about it)

As for here in NB, we have the Provincial Planning and Assessment Appeal Board. they have the ability to rule on a case based on two items, undue hardship and / or misapplication of the Act.

A recent decision by our appeal board infers that while it behooves council to make a decison where the facts lead them to believe that the application supports the intent of the MDP they are not forced to (Administrative vs Judicial roles of council and political nature of decisions). The Act only requires that any decision they (council) make maintains the intent of the Plan.

If I had more facts on your case i could probably comment better. PM me and we can discuss.

My favourite decison from our appeal board states:

"Mrs. McCoy and her husband have also had a great deal of difficulty with their neighbour. These problems have aggravated her health problems. She testi fied that the neighbour has attacked her husband with a chainsaw, drives recklessly in teh neighbourhood, regularily abuses her verbally and can often be seenfollowing the family's movements with a video camera."

She won the case on undue hardship because of these itmes for the subdivision of a new lot on a private road. She neglected to tell the appeal board that her neighbour is her husband's brother and there is a long standing dispute over the father's estate. if anyone wants a full copy of this PM me and we can figure something out.


As for housing questions and emminent domain (ie what level controls what) here all three levels of gov't get involved with housing and providing funds, programs and policies. During the past 15 years the feds have downloaded to the provinces who have tried to down load to the cities. Typically, cities have the least money, but teh most control over where housing goes, as such the policies of cities tends to reinforce the programs from above, but not commit too strongly to undertaking any work. Hope this makes sense.

A good book on this is House Home and Community. It is published by the CMHC and provides a history of housing programs until the mid 80's. As always check out www.cmhc.ca for more info on housing in Canada.

 

[Tranplanner]

Well, being that I'm a transportation planner my knowledge of the Ontario Municipal Borad (OMB) is somewhat academic as well. I've been involved in several cases, but have never had to testify.

Here's the link for the OMB:http://www.omb.gov.on.ca/

I don't think a developer would take a municipality to the Board over a zoning regulation per se - cases tend to end up before the Board due to refusal of a Council to approve a development. In addition, anyone can appeal a decision of Council (regarding a development) to the OMB...there are cases where a municipality agrees to a proposal, but local residents or other businesses will appeal to the OMB. A certain supermarket chain used this approach to try to prevent Costco from moving into industrial areas.

The OMB has lately been accused of being very pro-development.

 

[Plan Man]

The OMB is not a court, but essentially it acts like one. It does not only deal with development issues, but all municipal matters - It's just that development issues are the main issues. OMB members are elected by the Province - hence their pro-development image in this Progressive Conservative era here in Ontario.

Essentially, the effect that the OMB has on planning in Ontario is that it has planners second guessing and wary since essentially everything can be appealed to the OMB. And developers know this ("What do mean you want to be provide a nice facade along the street, I'll take you to the Board.")

We had a guest speaker from Vancouver (without a body such as the OMB) talking about design issues and the design process, and how they can get certain design elements....something that is inherently difficult in Ontario because of the avenue of appeal. It is really sickening how difficult the OMB makes it for Ontario planners.

My two cents.