Wednesday, June 23, 2010

Unprecedented Case

When I was a municipal politician I found that, as far as challenges went, understanding planning documents was right up there with my aspiration of swimming Lake Ontario while doing the butterfly stroke.

So earlier this year when Ontario Municipal Board ruling PL050611 came out I went looking for help to understand it.

Rani Khan, a lawyer and colleague at the Hamilton Community Legal Clinic, read the 49 page ruling and provided comments that were helpful to me.

But this is my blog and what follows are my opinions.

The ruling involved a Kitchener Official Plan and Zoning by-law amendment that attempted to “clean up” a 10 block area in that city known as Cedar Hill. Cedar Hill apparently needs cleaning up as twenty percent of this area’s residents are persons with disabilities and/or persons in receipt of social assistance. Many live in shelters, group homes or rent-geared-to-income housing.

The City had decided that this situation represented an “over- concentration” resulting in “an unhealthy social environment.” The neighbourhood was on “a downward trajectory.” Scary stuff, indeed.

Some of the parties represented at the OMB hearing suggested that Kitchener was doing a little bit of “people zoning.” The important planning principle to keep in mind being that you zone for uses not for people.

This is an important and probably precedent setting case. Way back in 2003 the City had put an Interim Control By-law in place that banned any new “downward trajectory” promoting facilities. But, significantly, a commitment to do more study to promote the development of new....lodging houses and residential care facilities in all other appropriate areas of the city was made.

After four weeks of hearings last year the Board accepted the municipalities’ (Kitchener and Waterloo Region) arguments that there was, in fact, a concentration and that the City is entitled to develop initiatives to distribute facilities throughout the city. The Board, though, had a problem with the fact that the promised additional study never happened. As a result the Board ruled that the restrictive measures put in place were premature and gave the municipality 15 months to do the study it should have done five years ago.

In other words if a city is going to restrict opportunities for housing people with disabilities and/or those on assistance they’ll have to do appropriate preparation required by the Planning Act.

There is, of course, a lot more to this. I’ll have more to say later this week.

In the meantime you can view this interim decision on the OMB website ( by typing in PL050611.