Critics claim OMB has become developer friendly 

 By David Lewis Stein  Toronto Star Staff Reporter

 The Ontario Municipal Board. Its very name reeks of a stolid, apolitical bureaucracy. 

 An all-powerful one. 

 ``The board has become the Supreme Court of land-use planning,'' observes Jane  Pepino, a prominent land use lawyer. 

 Glenn DeBaeremaeker is less diplomatic. 

 ``It's a dictatorship,'' says DeBaeremaeker, head of the group Save The Rouge  Systems, which is at the OMB to oppose a developer's proposal to build 12,000  houses on the Oak Ridges Moraine north of Toronto. 

 In fact, the Oak Ridges Moraine - a 160-kilometre long ridge of glacial sand and  gravel that absorbs and filters water before releasing it into 30 rivers and creeks  across southern Ontario - has become the latest OMB battleground, with armies of  developers and their lawyers on one side, and armies of environmentalists and  their lawyers on the other. 

 Somewhere in the middle is the board itself - 27 appointed men and women who,  when it comes to deciding how land will be used in Ontario, have the final say. 

 In the last year alone, the board issued some 1,500 rulings on matters ranging from  backyard fence lines to the official plan for Ottawa-Carleton. 
 

           `We listen to evidence that's put before us and we try to decide what is in the public interest. . . . We try to follow precedent, but we are not bound by precedent the way a court is.' 

- OMB chair Doug Colbourne 
 
 

 Today it is scheduled to take up the Oak Ridges Moraine, one of the hottest  development issues to hit the Greater Toronto Area in a decade. 

 All last week the board was tied up in preliminary hearings for subdivisions  elsewhere on the moraine, in Uxbridge and Aurora. 

 This fight over the Oak Ridges Moraine has aroused citizens right across the 905  region of Greater Toronto, from Caledon in the west to Clarington in the east. 

 It is, residents argue, nothing less than a last-ditch struggle to contain urban  sprawl. 

 Town council in Richmond Hill and the council of the surrounding region of York  have already turned down the developers. For its part, the province has created a  map of build and no-build zones. 

 But none of that means anything when it comes to the OMB. Under no obligation to  listen to these elected politicians, it can still approve 12,000 new houses on the  Richmond Hill patch of the moraine. 

 The Ontario Municipal Board, whose 27 members are appointed by the provincial  cabinet, has extraordinary powers, and some observers are convinced its members  have become too developer friendly. Although some may well be too ready to please  big business, the problem's the system and the way provincial governments have  changed the ground rules for the board. 

 Blame the rules of the game, not the players. 

 There is nothing like the OMB anywhere else in Canada. In other provinces,  municipal councils make land-use decisions. If citizens don't like them, they can  appeal - but only to the courts, and then only if they can can argue that council has  gone beyond its powers. 

 In this province, the Ontario Municipal Board occupies an extremely privileged zone  somewhere between elected councils and appointed judges. 

 In fact, as a quasi-judicial tribunal, the OMB has almost absolute authority over what  we do with our land. Any alteration - whether it's a room you're thinking of adding to  your house, or a subdivision you want to build on the Oak Ridges Moraine - can be  appealed to the board, which has the final say. 

 `In theory, the system is not unfair. The trouble is, the theory                 doesn't work' 

 These days, developers don't even have to wait for a municipal council to rule on a  plan before going to the OMB. 

 There was once a time when developers needed permission from the municipal  affairs minister to bypass local councils and go to the board. 

 Then the Conservative government of Premier Mike Harris changed the rules,  allowing developers to go directly to the OMB 90 days after they applied to a  municipal council for development approval. 

 Now it's a right. It's automatic. 

 In Richmond Hill, the developers appealed to the OMB before there was a decision  to appeal - their proposals hadn't even been considered by the town council. When  the elected councils of Richmond Hill and York Region eventually said no, it didn't  matter. The board can still say yes. 

 In effect, Queen's Park has given up its power to overrule board decisions - a  non-partisan development that occurred when first the Conservative government of  Bill Davis and then the New Democrats under Bob Rae took steps to end direct  appeals to cabinet. 

 That leaves an appeal to Divisional Court as the only option when it comes to  challenging a board ruling. This costs a lot of money and will probably get you  nowhere because courts only rule on narrow points of law, not on whether the OMB  has harmed or helped people. 

 Ordinary citizens who take on developers at the OMB can find themselves at  hearings that run like trials, with witnesses being sworn in and cross-examined by  lawyers. 

 And it costs. Big-time. 

 Katie Lyons, president of the municipal section of the Canadian Bar Association,  says expert witnesses like planners, engineers - or, in the case of the moraine,  hydrogeologists - command $150 to $250 an hour, while a mid-range lawyer gets  $170 to $300. 

 One Richmond Hill developer, Joe Lebovic, has already spent more than $500,000  on expert witnesses for the Oak Ridges Moraine hearing. 

 And that, say environmental groups, leaves them at a terrible disadvantage. 

 ``We don't have any money,'' says DeBaeremaeker of Save the Rouge. ``We'll be  going into this with one hand tied behind us.'' 

 Wynn Walters of the Citizens Alliance of Uxbridge, which has been raising money to  fight developments there, agrees the system is broke. 

 ``In theory, the system is not unfair,'' he said. ``The trouble is, the theory doesn't  work.'' 

 It wasn't always this way. There was a time when citizens adored the OMB. 

 The province created the board in 1897 to watch over municipal spending and, over  the years, added other responsibilities. 

 After World War II, when cities began sprouting suburbs, the province passed a  planning act setting out steps local councils had to follow when turning farmland  into housing. 

 The act required municipalities to make ``official plans,'' setting out where new  housing should go. And Queen's Park added urban planning to the board's  responsibilities. 

 In 1969, the board made what many consider its most far-reaching decision.  Toronto had long thin ``strip wards'' running north from the lake and the  middle-class people at the north end could organize to outvote people in the poorer  neighbourhoods south of Bloor St., thereby keeping reformers and other riffraff off  city council. The board drew up ``block wards'' that divided Toronto along Bloor St.  and linked up the poorer neighbourhoods. In the 1969 election, voters elected a  clique of reformers that included John Sewell and David Crombie, trendsetters  whose ideas about protecting neighbourhoods dominated Toronto in the 1970s  and still influence politics across the region. 

 The OMB chairman at the time, J. A. Kennedy, was a cantankerous, owlish, old  conservative, but he liked to tell people the board's initials stood for ``ombudsman.'' 

 Kennedy certainly gave the people a voice. He cleared the way to killing the Spadina  Expressway, a north-south gash through some of Toronto's most established  neighbourhoods, a roadway envisioned as the first of a whole new inner-city grid of  expressways. 

 A three-person OMB panel ruled 2-1 in favour of the expressway, but Kennedy's  dissenting opinion was so powerful the Stop Spadina group appealed to cabinet,  where Bill Davis killed both Spadina and the expressway grid. 

 The board went on to save a block of fine old houses on Sherbourne St. north of  Dundas, and this decision helped the city persuade another developer to redesign  the condominium block across from the Art Gallery of Ontario. 

 ``In those days, you went to the OMB with hope,'' Toronto councillor Anne Johnston  remembers. 

 In one instance, storekeepers on Eglinton Ave., fearing a new supermarket favoured  by the old city of York council would draw business away, hired a young lawyer,  Steve Diamond, to appeal to the OMB. 

 Diamond won. 

 Now Walters and the Citizens Alliance of Uxbridge want the board to save them from  Steve Diamond. His client, Joey Tanenbaum, wants to build 2,500 houses on the  moraine. 

 There was a time when Queen's Park was the final authority over municipal  councils that changed official plans for a big project. Provincial ministries looked at  the impact the projects might have and, if they were worried, they could order  changes - or even kill the project. 

 Not now. 

 Bob Rae's New Democrats began giving municipalities more power, and the Harris  Tories went even further. They allowed municipalities to change land use plans  without any approval from Queen's Park. 

 Now the government of Ontario merely comments when a municipality changes  plans. If the government doesn't like the plan, it can - just like a citizen - take its  complaint to the Ontario Municipal Board. 

 Still, many who deal with the board suspect its members are open to undue  influence from Queen's Park. It's a pro-business government, they say, and the  green no-build corridor on the province's moraine map is just window dressing. The  board will still rule in favour of developers, their argument goes, because that's what  provincial politicians want. 

 It used to be that when board members were appointed by Queen's Park, they had  the job for life - like judges. That made them as independent as judges are  supposed to be. 

 Board members often have heavier responsibilities than provincial judges - their  decisions can affect projects worth hundreds of millions of dollars and touch  thousands of lives. 

 Provincial court judges are paid $161,440 a year. OMB members average $85,000  and haven't had a raise in 10 years. 

 It was Ian Scott, attorney-general in David Peterson's Liberal government, who  decided board members should serve for three years and then be considered for  reappointment. 

 ``Scott felt the board was being seen as a home for retired lawyers and he wanted  to make it more accountable,'' says Doug Colbourne, the current chair of the board. 

 In Richmond Hill, after the government presented its map at an OMB preliminary  hearing, one lawyer - who declined to be named - muttered, ``Suppose you're  coming to the end of a three-year term and the government throws something like  that into a hearing. If you ignore it, you've got to worry how they'll see that in Queen's  Park. Will they renew you for another three-year term?'' 

 Diamond, now a prominent land use lawyer, says ``The board should be given  longer terms so there will be no possible public perception of political interference.'' 

 Every lawyer interviewed for this article - almost all asked to remain unnamed -  repeated that sentiment. 

 Lyons said the Canadian Bar Association's municipal section appealed to both the  NDP and Conservative governments that followed Peterson to at least lengthen the  three-year term. They got nowhere. 

 Another difficulty is the way the board's responsibilities are defined. 

 The New Democrats required OMB decisions to ``be consistent'' with provincial  policies, and began to spell these policies out in regulations as thick as a  telephone book. 

 The Harris government changed all that, requiring the board to ``have regard for''  provincial policies. And it reduced provincial policies to just nine pages. 

 Present rules leave plenty of room for interpretation. 

 Present policy, for example, requires that ``prime agricultural areas will be  protected.'' But present policy also states that municipalities should have enough  land designated for future housing to keep developers busy for 10 years. 

 When it comes to aquifers like the Oak Ridges Moraine, the policies say only they  ``will be protected.'' 

 So how does the board decide what is most important? 

 What comes first? Housing? Farms? Protecting the moraine? 

 ``We listen to evidence that's put before us and we try to decide what is in the public  interest,'' Colbourne says. 

 But how does the board know what's in the public interest? 

 Sometimes the OMB deliberately turns intervenors away, no matter how public or  interested they are. 

 The City of Toronto, which asked to take part in the Richmond Hill hearings because  Toronto's rivers - the Don, the Humber and the Rouge - are all fed by the Oak  Ridges Moraine, was told to stay away. 

                 `The board should be given longer terms so there will be no                 ... perception of political                 interference' 
 
 

 Although the city was ready to spend over $1 million on expert witnesses, the OMB  decided Toronto wouldn't add anything because much of the case the city planned  to make would be made by public interest groups. 

 That's when Toronto turned to the courts. 

 Last week, the divisional court turned down Toronto's appeal. The city's lawyers  can't even come to the assistance of other parties because the city's insurance only  covers them to act for the city. So the public interest groups are on their own. 

 Many people are convinced board members take their cues from Queen's Park and  favour developers, including some land use lawyers who asked that their names  not be used. 

 On the other hand, Ian Graham, publisher of GTA/905 Development News, a  newsletter that keeps track of OMB decisions, says he finds the board ``pretty  even-handed.'' 

 While a Star inquiry to the board readily produced a sampling of a dozen decisions  in which the board ruled against business interests, there's nothing to say the OMB  must follow previous decisions - including its own. 

 ``We try to follow precedent, but we are not bound by precedent the way a court is,''  Colbourne says. 

 So it can looks as though it is going in one direction one day and in a completely  different direction the next day. 

 Over the years, commissions have examined the board's role, but none have  recommended doing away with it. You have to wonder if people complaining about  the board so bitterly now would feel better if they had nowhere to appeal a dubious  municipal action but the courts. 

 But that's democracy, which Winston Churchill famously described as ``the worst  form of government, except all those other forms that have been tried from time to  time.'' 

 He might have said the same of the Ontario Municipal Board. 
 

New version of provincial appeal tribunal called secretive, costly, inaccessible, legally complex and rubber stamp for developers

WALLACE IMMEN The Globe and Mail Monday, May 29, 2000

Toronto – 

Andrea Daga has a simple description of the board that has the final say on development in Ontario.

"It's a kangaroo court. It is all rigged against citizens," said Ms. Daga, who opposed a subdivision she felt was being built too close to the bank of the Rouge River behind her home in Markham.

Her appeal to the board was frustrating, expensive and ultimately futile. "I was told basically I didn't belong there," said Ms. Daga, a retired executive secretary.

Unique in Canada, the unelected Ontario Municipal Board is increasingly being described as a rubber stamp for developers.

Many voices are calling for a closer look at how a board set up to listen to appeals of municipal decisions has become so secretive, expensive and legally complex it is shutting out citizens and environmental groups.

The controversy is highlighted by the board's role in one of the most significant development decisions ever made in the province.

This week, the OMB begins a hearing that will decide whether to allow thousands of homes to be built on an ecologically sensitive portion of the Oak Ridges Moraine.

Developers planning a dozen subdivisions in Richmond Hill took advantage of recent changes to the OMB process to sidestep the local council, where such decisions should be made, and go directly to the board, which can overrule any municipality.

While the Oak Ridges decision will set a precedent that will affect citizens and communities across the Toronto region, the two-judge hearing panel decided not to even hear lawyers and experts from the city. Toronto argued it is directly affected because the moraine is the source of much of the area's ground water.

"The system is broken if citizens can't go to the OMB and get a fair hearing," said Glenn De Baeremaeker, of the group Save the Rouge Valley System, which is opposing the Oak Ridges development plans.

"You don't win or lose based on the merits of your case. It comes down to who has the most money to bring testimony in front of the board," he said.

Mr. De Baeremaeker said his group, which depends on volunteer legal help, felt like David facing Goliath before Toronto decided to join the opposition. (The city has a legal department and a war chest of $1-million for ecological and legal studies.) But hope for help from the city was eliminated when the board decided to exclude Toronto from the 12-week hearing.

Intentionally or not, changes the Conservative government made to the OMB in the past few years have made the board a convenient place for the provincial government to duck its responsibility for unpopular decisions, said Mike Colle, Ontario Liberal housing critic.

The municipalities have done their share of hiding as well, Toronto Councillor Mike Feldman said.

"Most councils are guilty of delaying applications" to avoid nasty confrontations with opponents of unpopular plans. Developers like to go to the OMB because it is a legal decision rather than an emotional debate.

"If politicians did their job we wouldn't need it," Mr. Feldman said.

He suggested an appeal body of elected officials from the communities affected would better reflect the concerns of citizens.

Advocates for environmental groups argue the entire flawed OMB process should be scrapped.

"I thought it was a degrading and completely undemocratic process," said Eric Shapero, a teacher who attempted to oppose development on a park in Markham. His fight ended earlier this month when he walked out of a hearing bitter and broke.

"I wasn't in a position to compete with the developers' juggernaut," he said.

Just making the case before the OMB cost about $20,000, the price of a mandatory lawyer and the time of planners and expert witnesses to testify at a five-day hearing, Mr. Shapero said.

It wasn't supposed to be that way, Mr. Colle said. The appeal tribunal was created more than a century ago as in an era when roads and railways were changing the landscape.

Until a few years ago, it was considered the "court of sober second thought" on local development squabbles, while the province acted as overseer of larger environmental and political interests.

But since the province offloaded planning responsibility to municipalities a few years ago and pulled back from its policy role, "the board has become the centre of a very ad hoc process," said Theresa McClenaghan, counsel for the Canadian Environmental Law Association.

The problem is the board has to take each appeal as it comes. "It's about a corner here and a swatch there, rather than how it fits into a broad area like the Oak Ridges Moraine," Ms. McClenaghan said.

The board's rulings are based solely on evidence presented during a hearing but they can overrule decisions made by elected municipal officials.

Most of the board's judges are appointed from backgrounds in planning and municipal law. In these fields "the mindset is accommodating growth and not about balancing the environmental impacts," Ms. McClenaghan said.

The board also became more sensitive to the policy winds from the province when the jobs of the 24 hearing judges changed from lifetime appointments to a three-year term.

About six months ago, the board limited public access to decisions, making its Internet archives available only to lawyers. But Ms. McClenaghan did a search for The Globe and Mail of a week in early May and found the board sided with developers in 18 out of 19 decisions.

As if to dispel the notion that the board is a rubber stamp for developers, its latest appointee is Mississauga Councillor David Culham, who is known for support for natural preservation.

Mr. Shapero suggested the OMB should set aside a fund for resident associations and environmental groups to get the representation they must have to make an appeal before the board. Otherwise, the decisions automatically swing in favour of the developers.

"It defeats the whole purpose of having elected local officials. It's time for everyone to stand up and say we're not being represented," Mr. Shapero said.

AUTOMATIC APPEALS

The most significant alteration in the OMB's role was a seemingly minor decision to give developers the automatic right to appeal to the board if a development decision is delayed more than 90 days.

Developers now appeal about 40 per cent of Toronto's land use decisions, on everything from gravel pits to 1,000-home subdivisions.

Knowing that complex studies of traffic or hydrology may create a long delay, developers often file an appeal to the OMB at the same time they file their plans with the municipality, said Patrick Moyle, executive director of the Association of Municipalities of Ontario. "It means elected officials often do not get the opportunity to make the first decision," he explained.

"Many see this as a loophole to let developers get a spot in the queue for a faster decision."

The Association for the Municipalities of Ontario and the OMB agreed in earlier this month to set up a working group to study the 90-day rule.

This week's hearing on the Oak Ridges Moraine is an appeal by four groups of developers who filed under the 90-day rule when they brought their plans to Richmond Hill Council. The council deferred a decision after public meetings, which brought hundreds of protesters opposed to the developments.

A two-judge OMB panel will determine whether construction can go ahead, and other builders will see the result as a precedent for development on other parts of the moraine. 
 

 The Ontario Municipal Board aids Tory-friendly developers by overturning city land-use rulings

BY BRUCE LIVESEY

Becoming a township councillor has been the most distressing experience of Jane Underhill's life. And no wonder. She ran for office in 1997 to fight for a cause close to her heart, only to see her efforts crushed by the Ontario Municipal Board (OMB), the powerful government tribunal that rules on land-dispute issues. 

Underhill lives in King City, a township north of Toronto that lies on the environmentally sensitive Oak Ridges Moraine. Underhill sought office because she felt the town's political leaders were jeopardizing the environment with plans to build a sewage pipeline that would lead to the doubling of King City's population from 5,000 to 10,000 in 16 years. Underhill says, "Anywhere the pipeline goes, a huge amount of growth follows."

Four residents' groups were so upset that they banded together and spent $167,000 to appeal the matter to the OMB, arguing that the extension of the sewage pipeline would cause irreparable harm to the environment. To raise the money, they held garage sales, musical events and a letter-writing campaign and to this day still owe $30,000. 

But the OMB ruled against them in March, paving the way for the pipeline to be built and developers to construct more houses in King City. "They will compromise the water supply and wildlife on the moraine," says Underhill.

The OMB's decision disappointed the King City residents, but considered alongside its other decisions, it should have come as no surprise. While the board has traditionally been pro-development, it is more so today than ever before. Over the past year the OMB has not only opened the door to more development on the Oak Ridges Moraine, it has tried to prevent Mississauga from making developers pay for schools in new subdivisions and overturned a City of Toronto bylaw designed to protect the GTA's precious and dwindling supply of rental housing from developers who want to knock it down. 

Critics of the OMB say it is simply implementing the Mike Harris government's pro-development agenda, an accusation given credence by the fact that the Tories have stacked the board with their own appointees. For example, the OMB member who ruled on the King City pipeline was Ronald Emo, a Tory appointed to the board in 1997. 

"Land-use decisions have a major impact on economic development, and this Conservative government -- which is so reliant on campaign contributions from the development industry -- wants to keep its developer friends happy," says Myer Siemiatycki, a professor of politics at Ryerson Polytechnic University. "One of the ways the province does this is to perpetuate an OMB stocked with its own favoured appointees who have a pro-growth and pro-corporate ideology." 

THE LAST WORD

Developers consider the current OMB so friendly to them that they automatically appeal to the board if they feel city councils aren't giving them what they want. In nearly 40 per cent of land-use decisions made by Toronto's city council, developers appeal to the OMB. "Frankly, any developer who loses at city council is likely to appeal, because what do you lose?" says Michael Melling, a lawyer and former OMB member who represents developers at the board. "You might as well give it a shot."

The OMB is made up of 27 members appointed by the government -- at salaries from $85,000 to $95,000. The board's power is breathtaking. These unelected adjudicators can overturn the decisions of any Ontario municipality on land-use matters. And the OMB's word is usually final: the courts rarely hear appeals on its decisions. 

The OMB's power was displayed in April when the board ruled that the City of Toronto could not participate in hearings on the Oak Ridges Moraine slated to start this month -- despite the fact that the moraine supplies water to Lake Ontario. Called the rain barrel of southern Ontario, the moraine stretches 160 kilometres from the Niagara Escarpment east to the Trent canal system. It acts as a natural water reservoir, providing drinking water for 200,000 people and feeding the headwaters of several major rivers. 

"The OMB is about as fundamentally undemocratic as you can get," says city councillor Jack Layton, who wants the board abolished. "The mere existence of the OMB is saying there's no use for democracy when it comes to land-use planning."

In fact, there is nothing quite like the OMB in Canada. "Other jurisdictions seem to manage without a tribunal as powerful as the OMB," says Helen Cooper, who was chair of the OMB from 1993 to '96. "When you describe the OMB to Americans, they are absolutely staggered. They find it impossible to accept that an unelected body could have so much power over an elected body. They find it just amazing."

The OMB's far-reaching power is no accident. The board was created more than 100 years ago so the province could maintain control over municipalities. Despite this, prior to the '80s, board members were given appointments for life to ensure they were not influenced by the government of the day. 

That changed in 1985, when appointees were put on three-year terms. Immediately the board's independence became illusory. "It would be profoundly naive to believe that people who don't have security of tenure in their job aren't more easily influenced than people who have security of tenure," says Melling, who sat on the board from 1993 to '97. "It's a criticism I think is legitimate: that the system of three-year appointments -- and the uncertainty of reappointment again in three years -- has been a real source of undermined confidence in the board."

The Tories have used the three-year tenures to their advantage. As the terms of members made by other governments have come due, the Tories have replaced them with appointees to their liking. In this way, the Harris government has changed the ideological hue of the board by appointing a dozen new members since 1995. Now an overwhelming majority of board members owe their jobs to current or previous Tory governments.

One former board member who was dumped by the Tories says that after Harris was first elected, board members grew fearful of losing their jobs. "The fear was palpable," says the former member, who spoke to eye on condition of anonymity. "Everyone knew what was expected. You could see they would do almost anything to get reappointed." 

The message was clear: be pro-development or lose your job, a suggestion underlined by the fact that the Tories kicked off virtually every NDP appointee to the board. Another former OMB member, who also spoke off the record, recalls a conversation with a colleague who planned to rule in favour of a development in Parry Sound because Finance Minister Ernie Eves favoured it. "The member was very concerned about his job," says this ex-member.

The Tories made other changes to ensure the OMB is pro-development. They scrapped the land-use polices implemented by the NDP as a result of the Commission on Planning and Development Reform, headed by former Toronto mayor and eye columnist John Sewell. These policies laid out clear environmental guidelines. "Now the OMB has nothing that will give it direction on what it should be doing," says Sewell. 

The Harris government also limited input into OMB cases. In the past, other provincial ministries could appeal cases to the board. Now only the Ministry of Municipal Affairs and Housing can do so. "You're getting a file with no comments from experts the government has," says a former board member.

But the biggest factor favouring developers is the cost of presenting a case before the OMB. It's prohibitively expensive, often costing hundreds of thousands and even millions of dollars for lawyers and expert witnesses. While many developers can afford this sort of money, most citizen and environmental groups cannot. "How are community groups supposed to amass the sort of information they need if they don't have many resources?" asks Cooper. "So you end up with these David-and-Goliath situations, and the board member can only deal with the evidence before them and nothing else. The case is then weighted in favour of those who can mount the better case."

If citizens do intervene at hearings, they run the risk of being forced to pay some of the developers' legal bills. In 1997, OMB member Grant Morris ordered four citizens to pay a developer $15,000 after the citizens intervened at a hearing over a development slated for an ecologically important stretch of land along Georgian Bay. Morris said the citizens -- who had paid $75,000 out of their own pockets to oppose the development -- extended the hearing with their intervention, and gave them three years to pay off the charge. "That is disgusting," says Linda Pim, conservation policy coordinator for the Federation of Ontario Naturalists. "Who wants to go to the OMB if that might happen to you?"

It's no mystery why the Harris government has stacked the OMB with Tory stalwarts: developers are among the Ontario PC party's biggest donors. Recently, the environmental group Earthroots examined the province's records of political donations and found that the Tory party has received at least $2.5 million in campaign contributions from developers since 1995. Nearly half of this money was donated last year. 

Among the biggest Tory contributors is the Cortellucci-Montemarano group of companies and individuals, which contributed $335,839 between 1995 and 1997 and are major developers of housing subdivisions. Other developers that have donated include Greenwin, Realstar Group of Companies, TrizecHahn and Ellis-Don. 

"The development industry has given more generously to the Tory party than the other two parties combined," says Robert MacDermid, a York University political scientist who has studied campaign donations. "When a donation gets to be very large -- and that's certainly the case in the development industry -- there's the expectation something will happen at the policy level."

Earthroots also discovered that developers that own land or are seeking to build on the Oak Ridges Moraine have donated $769,516 to the Tories. Among these are Melody Homes ($28,234), Mario Cortellucci ($32,809), TrizecHahn ($110,701) and Ellis-Don ($38,716). Lea Ann Mallett, co-director of Earthroots, says most of this money went into the PC party's coffers just as the moraine issue was heating up last year. 

The Steven Gilchrist affair also suggests developers hold enormous clout within the Harris cabinet. 

Gilchrist, who was briefly the minister of municipal affairs, opposes building on the moraine. Last fall the Urban Development Institute, the main lobby group for developers, accused Gilchrist of influence-peddling after the minister allegedly suggested that developers set up a meeting to discuss the moraine issue through his lawyer. Although police have since found no evidence to support the institute's accusation, Harris quickly dumped Gilchrist. Given all this, many fear the moraine will now be sacrificed to development interests. 

Earlier this year, Richmond Hill city council -- responding to developers' wishes -- proposed to redesignate 2,800 hectares of rural and agricultural land on the moraine to accommodate 15,000 new homes and 50,000 more people over the next two decades. Environmental groups say this development will wipe out habitat and pollute the groundwater.

"The impact of a typical subdivision on a normal watercourse are things like salt, lead, oil, gasoline, grease, antifreeze, pesticides, fertilizers, herbicides and heavy metals," says Glenn De Baeremaeker, president of Save the Rouge Valley System. "We are contaminating all of our rivers as we build." 

Local residents rose up in protest. By March, the city council was backpedalling, so four developers appealed to the OMB to get approval to build. Those hearings get underway this month. 

"This whole process has been hijacked by the developers," says Brenda Hogg, a Richmond Hill town councillor opposed to development on the moraine. Meanwhile, the Harris government is refusing to intervene and protect the moraine -- despite appeals from Bill Bell, Richmond Hill's mayor.

Early signs suggest the moraine is doomed. The hearings are co-chaired by James Mills, a Tory appointee from the Bill Davis era who is considered one of the most development-friendly board members. John Bacher, past president of the Preservation of Agricultural Land Society, a St. Catharines-based environmental group, says when he presented a case before the OMB last year, Mills was "quite rude and threatening" to a woman who opposed a development in the Niagara region. Bacher says Mills told the woman that if he saw her again, he would slap her with legal costs. 

When both Peel and Toronto asked to be parties at the moraine hearings, Mills refused, although these municipalities are directly impacted by the moraine's water supply. Toronto had planned to spend about $1 million to present its case at the board. Now only environmental groups like Save the Rouge Valley will defend Toronto's interests, despite their lack of money. As De Baeremaeker notes, "The only party with the resources to protect the environment properly is the City of Toronto." Mills' decision is being appealed to the courts. 

Carolyn Fenn, the OMB's senior case manager, says the board is concerned about issues of fairness and accessibility to its hearings. "It has to be fair and it has to be seen to be fair," she says. She defends the board's environmental track record, saying they are sensitive to concerns about overdevelopment. 

Yet the OMB has shown signs of being even more biased in favour of developers than even the provincial government is. In 1998, Mississauga passed a policy that would have forced developers of subdivisions to help pay for new schools where they were needed. The policy was created because the city's population has grown so quickly that schools are forced to house 36,000 children in portables. The policy received the province's blessing. 

However, four developers appealed the policy to the OMB, where it was overturned. "We were a little surprised and disappointed," says Tom Mokrzycki, Mississauga's commissioner of planning. "Having researched this matter and having received confirmation from the ministry of municipal affairs, then being told by the OMB that we don't have a right to do this -- that didn't make sense." Mississauga appealed the OMB's decision in court and won last December.

The OMB's decisions can have an enormous and often detrimental impact. Take the issue of rental-housing conversion in Toronto. When the Harris government passed the Tenant Protection Act in 1997, it scrapped a law that protected rental housing from being torn down. Since then, Toronto landlords have applied to demolish 1,500 apartment units and replace them with condos, threatening the supply of rental stock. 

To stop this from happening, the City of Toronto passed a bylaw called OPA 2 last year, which would have made it difficult for landlords to convert rental housing into condos. But developers appealed the bylaw to the OMB. Last September, the board ruled that OPA 2 was "invalid and illegal."

One of the developers that appealed OPA 2 to the OMB is Goldlist Properties Inc., which owns two apartment buildings on Tweedsmuir Ave. in Forest Hill. This 246-unit, two-tower complex largely houses seniors on fixed incomes. But Goldlist plans to knock down the buildings and erect 286 condo units in two 25-storey towers. This past February, and over the city's and tenants' strenuous objections, the OMB gave the developer the green light to go ahead with the demolition. 

The destruction of the Tweedsmuir buildings will cause hardship to tenants like Bill Solomon, a 78-year-old retired pharmacist who has lived in the buildings for 38 years. He says many of the tenants can't afford the higher rents they will be forced to pay in other buildings. This past winter Solomon spent four months in the hospital because of a broken ankle, cancer and bedsores. He worries that once they're all evicted "suddenly we will go from what we thought was the middle-class to the impoverished class." 

York Eglinton city councillor Joe Mihevc says the OMB's ruling "will further erode our ability to create a healthy city." 

Mihevc notes that OPA 2 was passed unanimously by 57 democratically elected councilors and was designed to protect the city's 1.2 million tenants. "It neuters the ability of cities to do planning," he says of the OMB. "It neuters the ability of cities to control development. We might as well get rid of our planning department." 

                 The star chamber of development

Recognize these names? You should. They make up the Tory-appointed Ontario Municipal Board, a group of non-elected officials who earn $85,000 to $95,000 a year for ruling on development and zoning disputes. They regularly overturn decisions made by your elected city councillors. 

Douglas S. Colbourne (Chair) Susan Fish (Executive Vice-Chair) Marilyn F.V. Eger (Vice-Chair) Robert D.M. Owen (Vice-Chair) Diana L. Santo (Vice-Chair) Calvin A. Beach Robert Beccarea J. Robert Boxma Gregory Daly Angelo Delfino Robert Drury Ronald Emo Donald Granger Gary Harron Marie Hubbard Norman Jackson Narasim Katary Bruce W. Krushelniki S. Wilson Lee Richard Makuch Brian W. McLoughlin James R. Mills James L. O'Brien Dennis Perlin Susan Rogers Morley A. Rosenberg W.R. Franklin Watty Penny Wyger Ted Yao