From OMB to LPAT: Changes in Land-Use Decision Making in Ontario
Changes to land-use decision making in Ontario offers lessons for the United States.
Toronto, Ontario, Canada.
By: Borna Khoshand, STAFF MEMBER
On April 3rd, 2018, the province of Ontario replaced the Ontario Municipal Board (“OMB”) with the Local Planning Appeal Tribunal (“LPAT”). The OMB functioned as a quasi-judicial administrative body that reviewed local urban planning decisions. It was one part of wider Ontarian governing structure that, relative to much of the United States, prioritized regional land use policy over local interests. Ultimately, local opponents of development succeeded in lobbying the Ontario government to create the watered-down LPAT in the OMB’s place. This post will consider how the OMB fits into current views of the political economy of the urban development.
The OMB wielded a range of powers to oversee development in Ontario. Most crucially, the OMB could overturn municipal urban planning decisions that conflicted with regional planning policies. Any party who disagreed with a municipal planning decision could bring an appeal to the OMB. For example, a developer may appeal a city’s decision to downzone their parcel (reducing the potential amount of building allowed), or a neighborhood association may appeal the city’s decision to approve a particular project. The OMB would then hold a hearing to consider the dispute de novo. Finally, the OMB had the power to side with the municipality, the appellant, or substitute its own judgment instead.
The OMB’s province-wide perspective and power helped promote housing development despite local opposition. Similar tools may also help American cities build more housing as well, as local opposition to development has strangled development in some of the country’s most in-demand cities. For decades, one prevailing view of the political economy of urban development saw cities as “growth machines” in which developers and politicians collaborate to increase development – for the sake of municipal tax receipts and developer profit. However, as housing costs have soared in many American cities – due in large part to constraints on building limiting supply in the face of growing demand for urban housing – some have to question the explanatory power of the “growth machine” theory.
Professor David Schleicher offered a new theory of urban development, focused on the procedure behind land use lawmaking. Under typical zoning practice, cities consider each zoning change one-by-one without deals across neighborhoods or projects. Thus, even if more development throughout the city may be the most desirable outcome to all, each part of the city is incentivized to resist proposals near them. After all, new development brings externalities like construction-related disturbances, blocked views, and more traffic. Paired with common practice of giving city council significant power over development in their district, this procedure leads to local opponents of development effectively blocking most projects. The OMB’s success stemmed from going over the head of local anti-development interests altogether.
A 2018 case offers one example of the OMB’s power to promote more housing development. A developer applied to Toronto for a zoning change to build townhouses on a plot of land zoned only for industrial use. Toronto did not act on the appeal, so the developer brought an appeal to the OMB. After hearing, the OMB found the developer’s plan aligned with provincial planning policies and would be allowed. The decision was out of Toronto’s hands.
However, the OMB’s vast powers also angered many Ontario residents. One common criticism saw the OMB as being too friendly to developers. For example, in one appeal, the OMB approved a six-story building that would block views of a historic clock tower despite opposition from local residents and the local city council representative. One resident who opposed the project said, “Why can’t the city make its own decisions about land development? Whose city is this?” and added, “The provincial government sticks its nose in everything. I’m fed up with it.” Just as proponents of more housing saw the OMB’s regional orientation as its chief advantage, local opponents of development, of course, saw it as a defect.
Those OMB opponents ultimately prevailed and persuaded the Liberal Ontario government to replace the OMB with the LPAT. On net, the LPAT gives greater deference to city planning decisions and limits avenues for developers to circumnavigate local opposition to their projects. For example, instead of considering the dispute de novo, the LPAT will only consider the decision made by the local council. So long as that decision complies with the municipality’s own official plans, LPAT will affirm it.
It remains to be seen how the LPAT will take shape as the new provincial government took steps to empower it to OMB-levels once more. However, Ontario’s experience does reaffirm how politically fraught land use decision-making is. Likewise, recent efforts by American states to preempt locally restrictive land use have enjoyed only mixed success. Should American supporters of preemption succeed, they, of course, should expect opponent of development to remain active in lobbying the state government to restore local control — perhaps especially so after new developments, made possible by preemption, begin cropping up in their communities.
Borna Khoshand is a second-year student at Columbia Law school and a Staff member of the Columbia Journal of Transnational Law. He graduated from the University of Chicago in 2018.