Shut It Down !

Councillor Diane Deans would like to know what can be done to abolish the Ontario Municipal Board. So would Citizen Ellie !

Councillor Deans is looking at it from the city's perspective -- the city having just spent nearly $1 million on a seven-week hearing on a Manotick residential development, in addition to the costs attached to having been involved in some 37 OMB hearings over the past two years.

Citizen Ellie looks at the OMB process from a personal perspective and it's a salutory tale for anyone contemplating renovating their house or severing their property or doing anything else which involves public consultation -- especially with neighbors.

Details of this case can be found in the OMB reports -- Board Case No. PL060247, Raynor et al.v. Dunn.

In October, 2005, as I carried the 40th. large brown paper bag of leaves out to the street for composting pickup, I came to the conclusion there was no joy anymore in maintaining the large New Edinburgh garden at my Dufferin Road house. Too much work for one person.

My house fronted on Dufferin Road, about 20 feet back from the sidewalk. The lot on which it stood was 175 feet in length -- running through to The Mews, which is a public street. It was zoned R-5 and the historical overlay which applies to a certain section of New Edinburgh did not apply in my situation.

I knew that if I sold the property, a developer would pick it up and build townhouses. Indeed, I could have applied for a demolition permit for the existing house, and built a low-rise six to eight unit loft-style condo on the site, with herringbone parking in the basement -- access from Dufferin Road and exit on The Mews. Knowing what I know now, I'm sorry I didn't take this route, but hindsight, as they say.......

Why should someone else make money out of this property ? I came up with a plan to sever it into two lots and build a single-family home on the rear lot which would front on The Mews. I would mortgage the Duffferin Road house to fund the cost of building the new one, sell the old one and use the money from the sale to pay off the mortgage. I would move into the new house, mortgage-free.

I retained the services of an urban planner, a surveyor and an architect. By February 2006, we were ready to appear before the city's committee of adjustment to seek some minor variances in order to move forward with the project. In the meantime, I met with Councillor Jacques Legendre, who indicated it was the type of infill project the city liked to see. I met with the New Edinburgh Community Alliance and received a letter of approval from them. And I invited all the neighbors living within the radius set by the city for objections to an open house where they could view the plan, and speak to both the architect and the urban planner. As a result of these efforts, some changes were made to the design of the house at the suggestion of neighbors who would be most impacted.

We appeared before the Committee of Adjustment on February 14, 2006. Surprise, surprise -- there were two objectors. One, Mr. R, owned a small townhouse in which he did not live , on a tiny lot on The Mews immediately adjacent to my property. The other, Mrs. C, resided in a half-double on MacKay Street, barely within the objectors' radius. She would have had to be a contortionist in order to see into my garden from the windows of her house.

Mr. R made a fuss about not being informed of my plans in advance. He initially tried to pass himself off as living in the townhouse, but had to admit it was an income property and that he was living somewhere else. Thus he never received the notices from the city or the hand-delivered invitation to my open house nor had he seen the signs posted by the city. He was concerned about shade and was not interested in any comprimises. Mrs. C had the idea that I should maintain a park and garden on my private property for her personal enjoyment. She felt the single family home which I planned to build would destroy the "character" of The Mews -- hard to understand since every other lot on the street was occupied by townhouses with garages in front, an old bakery converted into a residence, a private school and a church.

The Committee of Adjustment granted the variances. You might think I was good to go -- but no, objectors have one month to decide if they're going to appeal to the OMB. At the end of March 2006, I learned that Mr R and Mrs. C were going to the OMB. The hearing was slated for July.

We went through two days of hearings where we heard a load of bumph about lot size, sun and shade, country charm of streetscape etc. from the objectors -- neither of whom was represented by counsel, neither of whom had engaged any experts, neither of whom submitted any documentary evidence, relying primarily on their own opinions.

The Board, in its decision rendered in August 2006, concluded that my project met the statutory criteria, maintaining the purpose and intent of the Provincial Policy Statement and the relevant Official Plan (City and Regional) as they relate to intensification. "If owners fall within the parameters established by Sections 51(24) and 45(1), then they may proceed with their development, regardless of their neighbour's attachment to the "country charm" of the streetscape," the Board concluded.

This little exercise in public consultation gone mad cost the objectors $125.00 to file their appeals. I, on the other hand, was out of pocket some $32,000.00 in professional fees ( counsel, urban planner, architect in attendance for two days on a matter which should have been disposed of in half a day). I lost my spot in the custom home builder's queue, so I was forced to delay construction until the spring of 2007. In the meantime, cost of building materials increased as did the city's development fees. I estimate these additional costs at approximately $60,000 above what I would have spent if I had built the house in 2006 as originally planned. In addition, delaying construction until 2007 also meant that instead of putting my Dufferin Road house on the market in the fall of 2006 when the housing market was still hot, I had to wait a year. The market cooldown cost me approximately $70,000 in the sale value of the Dufferin Road house. So thanks to having to defend against a frivolous appeal to the OMB I kissed $150,000 goodbye ! No laughing matter for a widow with limited means and a very small development project.

This is why I think the OMB should be abolished. It is too easy for individuals to use frivolous appeals to delay projects, or to bankrupt the project's proponent through additional costs which might result in cancellation of the project. Once a decision on a development project has been reached by the Committee of Adjustment, that should be it. No appeals. This is the way it works in other jurisdictions. For example, if I had been pursuing the same project in a Saskatchewan city, I would have had my approvals and go-ahead within six weeks of filing with the municipality.

If the OMB is to continue operating as a quasi-judicial body, it should be allowed to award costs in cases where individuals bring forward appeals which have no merit and are designed only to harass and cause delays. I could have sought damages against Mr. R and Mrs. C in court. This, however, is another expensive process -- well beyond the means of the ordinary citizen, but I wish some large developer with deep pockets would take on a case.

In situations such as mine, it pits neighbor against neighbor resulting in resentments which last for years. On the day the OMB decision was handed down, Mr. R put his townhouse on the market. He's gone. Mrs. C is still around and every time I see her, I want to puke ! Was it Oscar Wilde who said revenge is a dish best eaten cold ?

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