City lawyer asks court to clarify planning law
ZoomBookmarkSharePrintListenTranslate
Unclear who controls development: councils or OMB
Patrick Dare, Ottawa Citizen, June 26, 2009, Page C6

A lawyer acting for the City of Ottawa argued Thursday that the courts must decide who makes development decisions in Ontario: elected city councils or the Ontario Municipal Board.
At stake is a massive development that could double the population of Manotick, one the board approved over Ottawa city council’s objections.
Lawyer Paul Webber told Superior Court Justice Robert Maranger that the Ontario government’s recent changes to planning law required that the municipal board — which hears appeals of city decisions — “shall have regard for” any decision of an elected council. But he said that “magic phrase” hasn’t been defined in law and cities like Ottawa need a judicial ruling as to what it means.
The city is asking the justice for the chance to have an appeal hearing in Divisional Court on a municipal-board decision that the city lost and Minto Developments won. City council voted against a proposed major Minto Developments expansion of Manotick. Minto appealed the council decision, pointing out that the city’s own planning staff had recommended the development be approved.
Council’s recent decision to try to appeal the board decision was unusual, but councillors said they need to have a legal interpretation of what the new provincial law on land-use planning, Bill 51, means.
Webber said that municipal governments, which used to be simply creatures of the provincial government, have seen their powers and role strengthened by Ontario through changes such as a revised Municipal Act. Webber said that with these changes, the municipal board should be able to overturn a council decision only when that decision is unreasonable or unlawful.
Webber said there has been an “incoherence” in recent municipal board hearings that shows “need for judicial guidance.”
The lawyer for Minto, Robert Doumani, said there’s no confusion at all over the roles and responsibilities of elected councils and the municipal board in Ontario. He said the phrase “have regard to” is commonly used in planning matters and it doesn’t mean that the municipal board must show deference to councils. Doumani said that if the provincial government wanted to significantly change the power of municipal councils it would have spelled out those changes.
Besides, he said, the city’s own planning documents, including a 91page report by the city’s planning staff, supported the Manotick expansion.
Webber said the city’s secondary plan for Manotick limited growth to 250 houses by 2020 and the municipal board decision failed to spell out how that plan was unreasonable.
The municipal board decision is to allow Minto to build 1,400 houses. Minto owns about 430 acres in Manotick bounded by Century Road, First Line Road and Manotick’s Main Street and would build about 150 houses a year.
There are risks for the city, which spent $637,000 in direct legal and planning costs for the municipal board hearing. If the city loses the appeal bid, it could be on the hook for costs for both parties.
When councillors voted to try to appeal the Manotick decision, some said the case was about standing up to the municipal board. Council voted 13-5 to pursue the appeal.
Maranger reserved his decision on whether to allow an appeal.