Ontario Land Tribunal decisions have favoured developers 97 per cent of the time

For five days in January, the Ontario Land Tribunal is set to hear an appeal of a controversial highrise development at 310 Frances Ave., near Stoney Creek's waterfront.

It's one of several appeals involving Hamilton properties filed with the province's quasi-judicial tribunal, which is the ultimate decision maker on planning and zoning disputes.

Opposing the developer of 310 Frances Ave. will be the City of Hamilton and the Lakewood Beach Community Council, a group of concerned neighbours.

The height battle at 310 Frances has already been lost.

Nearby residents have said they were shocked to learn the site had been rezoned years earlier with no height or density restrictions so the proposal is for three towers ranging from 40 to 49 storeys next to the North Service Road.

All that's left to fight now are a bunch of variances for things like parking and how much of the site will be left open.

A little further down the QEW, Lakewood Beach has filed an appeal of another residential development to the OLT, this one a nine-storey building at 1400 Baseline Rd. near Fifty Road.

In between those two projects, an appeal has also recently been filed concerning a development proposing four towers ranging from 15 to 24 storeys at the former LIUNA Gardens banquet hall site at Winona Road.

Other prominent appeals involve proposed developments at Clappisons Corners, Rousseau Street in Ancaster, and Scenic Drive near the Mountain Brow. Next door, Burlington is facing 15 appeals currently before the OLT.

And the odds of the city or Lakewood Beach or other concerned citizens prevailing against the developers at the Ontario Land Tribunal? Somewhere between slim and none, based on a review of the Ontario Land Tribunal's recent history of decisions from across the province.

A Spectator analysis of OLT decisions in 2022 up to mid-August shows the results are massively skewed in favour of developers over municipalities or community groups that might be opposed to a project.

From the start of 2022 until the midpoint of August, there were 178 final or interim decisions released by the OLT involving all Ontario municipalities.

The score is 172 to six in favour of the developers.

Ten of the cases involve Hamilton sites and all 10 decisions were in favour of the developer.

I'm shocked by that," said Lynda Lukasik, an environmental advocate with a PhD in urban and regional planning who is running for a council seat in Ward 5. This isn't healthy and it needs to be revisited.

On every level it's getting worse if you're a municipality or a community member but way better if you're a developer," Lukasik said.

Steve Robichaud, the city's chief planner, said he's not surprised by the imbalance.

It aligns with some of the stuff you hear anecdotally," said Robichaud.

Viv Saunders, a director and spokesperson with Lakewood Beach Community Council, said she's disappointed but also not particularly surprised by the developers' success.

There's a huge imbalance and a lot of that would stem from the money," Saunders said. They have deeper pockets. It's sort of expected that they would win more often at the OLT."

Yes, that's true, acknowledges Mike Collins-Williams, CEO of the West End Home Builders' Association. Developers are prepared to spend money to assemble a team of planning consultants and lawyers when it comes time to appeal.

But that's far from the whole story, he said.

I'll be blunt, my members are savvy business people and they aren't going to spend two or three years at a quasi-judicial tribunal in a case they're likely to lose," said Collins-Williams.

They'll only appeal if they think they have a solid case."

Sometimes, he said, appeals become necessary when city staff support a project but the local council ignores the recommendation. Or the appeals come from community groups, despite city support for the project.

Planning is inherently political," said Collins-Williams. The OLT, he said, takes the politics out of it."

It is an evidence-based tribunal where administrative justice is based on provincial policy," he said.

A spokesperson for the OLT said the tribunal can't comment on decisions as doing so could compromise, or appear to compromise, the independence of the tribunal and its ability to provide impartial dispute resolution services."

The OLT is committed to high quality, independent, fair and principled resolutions of the matters brought before it," the spokesperson added. Tribunal decisions are to be based on the facts, the applicable law and policy, and on the merits of the case."

Drowning in applications

In June 2021, the province amalgamated several planning, environmental and mining-related boards and tribunals - including what used to be known as the Ontario Municipal Board - into the standalone Ontario Land Tribunal.

When it comes to planning and zoning issues, the OLT tries to adjudicate a balance between the planning goals set out by municipalities and the broader policies of the provincial government.

The Greater Toronto-Hamilton Area is the fastest growing region in North America," Collins-Williams said, and we have a provincial policy framework that is extremely focused on intensification."

I'm empathetic to local concerns around change to their neighbourhoods where intensification comes in but we are in a housing crisis and the intensification numbers in Hamilton and other areas are going to increase significantly," Collins-Williams said.

I'm concerned there's actually going to be a lot more friction in the system going forward," he added.

In Hamilton, he said, most of the zoning bylaw is from the 1950s."

This is decades and decades out of date in terms of conforming to what the provincial policy framework is," said Collins-Williams.

And he has a surprising ally on his side - Phil Pothen, the Ontario environment program manager for Environmental Defence, a national advocacy organization.

Pothen said many of the successful appeals at the OLT happen because municipal governments don't have the staff to proactively update zoning bylaws to reflect their own municipal official plans. Developers are then forced to appeal the outdated framework.

Planning staff at municipalities are drowning in dozens and dozens of individual development applications," he said.

Everybody knows and cities will acknowledge that the zoning bylaws don't actually reflect the actual intentions they have in the official plan because they don't have the staff to do that," said Pothen.

That's certainly true in Hamilton. Robichaud said the city's planners are carrying high loads of cases, an average of 40 files at a time per planner.

It's hard to get the good qualified people in order to keep moving projects forward in a timely fashion," Robichaud said.

That leads to the next problem, developers appealing to the OLT because municipalities don't make decisions within the mandated timelines.

More than 100 of the 178 cases in the Spectator's analysis - about 60 per cent of the total - started out as an appeal because a municipality neglected to make a decision within the timelines.

Both sides point the finger at the other.

Collins-Williams said there are times a municipality will allow the clock to run out because an application is politically sensitive or frankly they just don't want to deal with it."

Robichaud, meanwhile, said some developers will file a timeline appeal either because they don't think they'll ever be able to satisfy staff and get to a point where they'll recommend approval, or they're anticipating that there'll be so much community opposition as a result of the initial circulation of the application."

On July 1, 2019, the Ford government dramatically shortened the timelines for municipalities to make decisions on development applications - 120 days for official plan amendments (down from 210 days), 90 days for zoning bylaw amendments (down from 150 days), and 60 days for site plan approvals.

On top of that, the provincial PCs are introducing legislation effective Jan. 1 that will force municipalities to refund development application fees to developers if the municipality doesn't make a decision on an application within the timelines.

Robichaud estimates the city could have to refund as much as $5 million a year back to developers based on past performance.

He said the city's planning department may start having to recommend denial of an application not because we're opposed to the principle of the proposal but because there are unresolved issues" and the clock is about to run out. And that could lead to even more appeals to the OLT.

It's a vicious circle. Many municipalities, already overwhelmed with applications, use those fees to fund their planning departments. Now if they miss deadlines, they'll have to refund the money that keeps them afloat, making it even more difficult to stay on top of deadlines.

It's like this pressure cooker they've created for municipalities," said Lukasik.

Toronto's chief planner Gregg Lintern had harsh words for the new legislation in a review he provided to his city councillors.

While the intent of the application refund timeline is presumably to expedite the approval process, in effect this needlessly punitive legislation could result in the unnecessarily pre-emptive refusal of applications," he wrote, resulting in further delays, added cost to municipalities, taxpayers and applicants, less public consultation, and ultimately less desirable project outcomes."

Back at 310 Frances Ave., Viv Saunders and the Lakewood Beach Community Council are trying to figure out how to pay to mount a defence against the project which will add almost 1,500 residential units near Green Road and the QEW.

To hire a lawyer and planner to present their case will cost $40,000, she said.

Raising that in a neighbourhood is pretty difficult to do," said Saunders.

And where would that money come from?

Really nice generous residents," she said.

Steve Buist is a Hamilton-based investigative reporter at The Spectator. Reach him via email: sbuist@thespec.com