There has been much discussion around Bill 37, The Planning Amendment and City of Winnipeg Charter Amendment Act, in recent weeks.
This legislation sets out a solid framework for economic growth by creating a mechanism for ensuring that development decisions are timely and consistent across Manitoba.
Critics have suggested this legislation will erode the democratic process in local municipalities by overriding decisions and creating a backlog of frivolous appeals. Yet history has shown that undertaking a fair, open and transparent appeal process results in fewer appeals and a more accountable planning system overall.
Planning appeals are already heard by the Municipal Board of Manitoba. Part of the recent discussion has focused on the fact that municipal board members are appointed, and therefore unaccountable. This is not only untrue, but wholly inaccurate.
The Manitoba Municipal Board has been in place since the late 1950s. Its purpose is to make decisions or recommendations about various matters under the Municipal Board Act, the Municipal Assessment Act, The Planning Act, The City of Winnipeg Charter, and various other acts. And while its members are appointed, as a quasi-judicial tribunal, the board is independent and not subject to direction by any minister, member of the Legislative Assembly, or government official.
The current board has over 70 years of combined experience in municipal governance and all members have a clear understanding of The Planning Act. Board members are made up of professionals from all across urban and rural Manitoba, including lawyers, engineers, and planners, as well as former municipal councillors, mayors, and CAOs. These individuals have been selected based on their experience, knowledge, and background.
Municipal board hearings are transparent. All Manitoba planning hearings are open to the public, and in most cases are held in the community where the matters have arisen, ensuring the public has the opportunity to attend. Parties appearing before the municipal board include the applicable planning authority and appellant, as well as members of the public who may wish to make a representation on matters to be considered by the board. All municipal board hearings are recorded, and written minutes of the hearing are retained.
Municipal board hearings are de novo, which means the board hears a matter fresh for the first time, and must make its decision based only on the information that is presented to it during the hearing. And once a hearing concludes, after thoughtful deliberation, board members must come to a unified written decision, with supportive analysis, within time limits specified in the legislation. Where the board is the final decision maker, the written decision is presented to all parties involved, and all municipal board decisions dating back to 1975 are available for inspection and copying.
Rather than overriding local decisions and creating a backlog of appeals, as some have suggested, the new legislation will streamline the planning and approval process. It complements existing authority of Manitoba municipalities to create, administer and enforce their own development plans, zoning and other bylaws respecting land use and development in their municipality.
This means if municipalities undertake effective and timely decision-making processes, with up-to-date development plans and zoning bylaws, fewer appeals could result.
However, if local decision-making is not transparent, development plans and zoning bylaws unclear, or municipal officials are unable or unwilling to explain their outcomes to applicants, then there is a process in place to ensure a fair and unbiased decision is ultimately made. This is the core of Bill 37.
No one can argue that democratically elected municipal officials know their communities best. However, in the absence of clear bylaws and local planning, partiality can result. Applicants expect and deserve a clear explanation of why their application is being denied. In the absence of this, the appeals process comes into play, during which the municipal board will assess the decision based on all of the information available. It is critical for the municipality to be able to reference its local planning policies and bylaws in support of its decision. Handing down a ‘denied’ decision without any explanation not only is often the catalyst for an appeal, but can have a negative impact on how long a hearing or decision can take.
Another concern raised has been that there will suddenly be a flood of thousands of appeals. Coincidentally, in 2018 there existed just that scenario, when the current municipal board inherited a nine-year backlog of assessment appeals on taxes. Property owners were frustrated, and municipalities were liable for interest owed on back taxes.
The municipal board developed a ‘made-in-Manitoba’ framework for the assessment appeals process. Using case management, a mediation-driven process in which the parties come together and try to find resolution to the issues without going to a hearing, most of the backlog has been eliminated – and municipalities will no longer be paying interest on business assessments that are almost a decade old.
The municipal board’s outstanding work over the past three years is an excellent example of eliminating red tape and saving money and time for municipalities and their ratepayers. This is the very reason it is the appropriate body to ensure there is a transparent, timely, and consistent appeals process in Manitoba.
Jeff Bereza is chair of the Manitoba Municipal Board and a former councillor for the City of Portage la Prairie.