On Christmas Eve, reportedly literally wrapped as a Christmas present, the City delivered to the Ministry of Affairs and Housing what Council had approved on November 26 and confirmed in a by-law on December 11, 2013 – henceforth to be known as OPA 150. The Ministry now has 180 days to give Notice of any “Ministerial Modifications” it sees fit. It is quite likely that it will take only about half that time. A Notice was also posted on the Environmental Bill of Rights web site, inviting the public to provide the Ministry with comments on this Comprehensive Amendment — “before February 9.” If you want to be notified of the Ministry’s conclusions, you need to ask them as well. The contact is Andrea.Gummo@ontario.ca.
Today, the Greenspace Alliance wrote to the Ministry, asking to be notified and drawing attention to two concerns:
+ the last-minute deal with Thomas Cavanagh Construction Ltd., allowing two more country lot subdivisions; and
+ the way the results of the City’s natural linkages analysis have been implemented in OPA 150.
26 January 2014
On April 24, the Ministry decided to make no changes to the Council-approved Comprehensive Official Plan Amendment. A Notice was issued on April 30 which arrived in people’s mailboxes on May 5. The appeal period ended on May 20.
The Greenspace Alliance filed an appeal about the way the natural linkages are depicted in the Schedules L 1/2/3.
32 appeals were filed by the May 20, 2014 deadline. An overview of the appeals (including a list of appellants and their counsel) was provided at the June meeting of the Alliance. (See also the Minutes of 26 June 2014.)
In July the OMB’s Case Coordinator/Planner informed the appellants that a 5-day prehearing conference would likely take place in March or April 2015. Later, we learned that a pre-hearing conference would take place April 7-10, 2015 in the Keefer Room at City Hall.
OMB Pre-hearing conference on OPA 150 comes to an early end
On April 8, Erwin reported to the GA List (slightly edited):
What was intended to be a 4-day hearing came to an end at 3:15 on the second day, today. The City did not get the motion it had planned for, which would have brought into force a large proportion of the 351 items comprising OPA 150 (and much of OPAs 140 and 141 as well — together comprising the end result of the Comprehensive 5-year Official Plan Review), by implication dismissing portions of many of the 32 appeals.
Essentially the process got hijacked by Taggart and Walton, and to a lesser extent Trinity and Claridge, with only Alan Cohen (representing 10 clients), in a brilliant 10-minute contribution, offering a counterweight. Paul Webber (the other dean of municipal lawyers in this town) played by his own book, pleading for Sunset Lakes’ development in Greely. The other lawyers kept as quiet as possible.
Taggart and Walton (represented by Steve Zakem and Michael Polowin respectively) put doubt in the presiding Member’s mind whether the City had done what the Planning Act had required them to do. Where was the Employment Lands study, they asked; where was the LEAR review (update of the status of agricultural lands); is it ok to have a planning horizon of less than 20 years? There are reasonable answers to each of these questions and others, but the question that topped them all in audacity was: Does the Board have jurisdiction to add urban land?
Most of these questions turn on an interpretation of two words in section 17 of the Planning Act:
Powers of O.M.B.
(50) On an appeal or a transfer, the Municipal Board may approve all or part of the plan as all or part of an official plan,
make modifications to all or part of the plan and approve all or part of the plan as modified as an official plan or refuse to
approve all or part of the plan. 1996, c. 4, s. 9.
(50.1) For greater certainty, subsection (50) does not give the Municipal Board power to approve or modify any part of the
(a) is in effect; and
(b) was not dealt with in the decision of council to which the notice of appeal relates. 2006, c. 23, s. 9 (13).
The hijackers wanted “dealt with” to mean that Council considered something. So if Council considered the question whether there was a need for more urban land (and rejected it, as they did), that would be enough to give the Board jurisdiction to add urban land anyway.
Sounds outrageous? It is.
Tim Marc, counsel for the City, was clearly outgunned by his learned colleagues. Near the very end of the proceeding he just managed to establish that both an OMB decision and a decision of Divisional Court had concluded that “dealt with” means “decided.” He even had to remind the others that, for sure, a part of the Official Plan that is “in effect” is outside the jurisdiction of the Board to modify on appeal. Simply incredible.
The back story, I fear, is that Legal Services failed to come to reasonable terms with the appellants on scoping of their appeals. He referred to “many discussions” having taken place over the 16 months since Council approved OPA 150 back in December 2013 but he had little to show for that this week.
The Member, R. Makuch, reserved his decision on accepting or rejecting the Taggart et al. countermotion, while the City’s motion was held in abeyance. This will take several weeks. If he accepts the motion there will be a first phase hearing to consider all these questions. Later, or if he rejects the motion, there will have to be another pre-hearing conference to accomplish what such sessions are meant to do: Bring into force what is not contested, identify the issues, set out the schedule of hearings and dates leading up to it.
Even without this kink in the road, the expectation was that the actual hearings would not get under way until the second quarter of 2016, the Board being short of Members. It will have been two and a half years or longer after Council’s decision before OPA 150 (or what is left of it) will fully come into effect.
There was no opposition to Ecology Ottawa becoming a Party for matters related to Complete Streets.
Besides us, the only other appellants not represented by counsel are a single rural landowner, the Metcalfe and District Citizens Association, and the Civic Hospital Neighbourhood Association. Where is the rest of the community to provide a counterweight to this madness?
After the meeting broke up, I spoke with Tim Marc, urging him to respond to our repeated offer to settle our little appeal — something he has failed to do to date. He was pretty bashful about what he has in front of him in the coming weeks and months.
This whole (now failed) strategy was conceived by Legal Services alone, by the way. A report to Council, originally planned for March 10, never happened.
Please go here for further developments in the aftermath of Council’s adoption of OPA 150 and the April 2014 Pre-hearing Conference.