Hurray – our golf course is saved.
Bar a few voices of opposition, that was the nearly unanimous cheer in Oakville last month, when Steve Clark, Ontario’s Minister of Municipal Affairs and Housing, sent out an announcement saying he had talked ClubLink into withdrawing its application to build housing on the Glen Abbey golf course.
Issued only a few weeks before the case was to land before the Ontario Land Tribunal (OLT), the decision was applauded by local politicians.
Mayor Rob Burton, who has staked his political career by spending more than $10 million to stop development on the renowned golf course, said the news was precisely what residents and politicians have been working towards for years.
But some planners and municipal law experts are questioning the dangers of doing planning this way.
The reasons for disallowing the ClubLink plans are entirely sound. As local politicians and many thoughtful and knowledgeable citizens pointed out repeatedly, the town’s official plan comprehensively outlines how and where Oakville will grow.
The notion that an individual landowner should turn that on its head simply because it no longer wishes to run a golf course was naturally infuriating to the community.
But does that good end justify the means? Should we celebrate a win that came about by abandoning an open, transparent and legal process and replacing it with political interference?
And what if the next secret phone call between the minister and ClubLink offers behind-the-scenes support for developing another golf course, maybe Milton’s RattleSnake Point Golf Club, where the company has already expressed interest in building?
Loss of democracy; risk of corruption
The politicization of the planning process worries Stéphane Émard-Chabot, a law professor at the University of Ottawa and legal counsel for the Federation of Canadian Municipalities (FCM).
“When you shift decision-making behind closed doors, you are asking for trouble,” he warns.
“Yes, there might be some good outcomes from it, but the loss of due process, the loss of transparency, the loss of local decision making, the loss of democracy and the risk of corruption that comes with this type of decision far outweigh potentially the one good decision once in a while.”
Neil Smiley, a planning and development lawyer and partner with the law firm Fasken, echoed those concerns.
“The planning process, in my mind, shouldn’t be made hostage to political intervention,” says Smiley. “It risks land being developed on the basis of lobbying, not on real planning principles.”
And while Oakville residents may be celebrating success and saving the cost of a scheduled 19-week OLT hearing, skirting the planning process in favour of a political solution also comes with the danger of increasing public cynicism, warns Smiley.
“I suspect the public loses some confidence in the process since they have no direct say in political decisions,” he adds. “It’s a double-edged sword.”
Coincidentally, Smiley represented TransCanada before the OMB back in 2009, when Oakville opposed the gas plant and eventually turned to intense political lobbying to get its way.
“Oakville is no stranger to defending what it sees as inappropriate development,” admits the lawyer.
'Don't know what the horse-trading was'
The announcement by Minister Steve Clark came within weeks of public calls by the Region of Halton and town asking the province to impose an MZO or use “other tools” to stop the Glen Abbey development.
The motions were rather oddly waffling in tone, avoiding simply asking for an MZO, a tool that Doug Ford’s Conservative government has used with increasing frequency since its election. Even the minister’s announcement of success contained more than the usual amount of pique displayed publicly, noting that the political resolutions “were not clear and left too many variables for outcomes on the table.”
“We decided it was better to not restrict ourselves to just one planning tool but leave it up to the province to decide in their opinion which of the various tools should have been used to conserve this cultural heritage landscape,” explains Ward 2 councillor Cathy Duddeck, who represents the Glen Abbey area and formally moved town council’s request.
While the MZO is a formalized route to political interference, the minister’s involvement in the Glen Abbey case is fuzzier.
Duddeck says local officials aren’t privy to what Clark may have said to convince ClubLink to withdraw its application.
“That’s between the minister and the applicant, but we’re just happy with the outcome. Extremely happy with the outcome.”
That lack of transparency particularly worries Émard-Chabot, who notes that ClubLink has several properties that are candidates for redevelopment, including one in the suburban community of Kanata near Ottawa that is subject to a similar fight.
“When you're dealing with property owners that own vast amounts of property in different communities and a decision is made behind closed doors somewhere, we don't know what the trade-offs were. We don't know what the horse-trading was. We don't know if the golf course in the riding that is politically sensitive was given preference over one in a riding that is either safe or lost for that government anyway,” he says.
“The more we stray from decision making that is transparent, based on principle, clear, appealable – the more we stray from that, the more our democracy gets in trouble – and the more you're opening yourself up to people going for a beer or a round of golf, ironically, and resolving a whole bunch of matters where the population and local officials might have no inkling.”
Duddeck defends the decision by the town to seek a political solution rather than following through with the scheduled hearing before the OLT.
She claims the tribunal is a “highly political” body staffed by political appointees who make decisions for a community they don’t live in.
“Quite honestly, I’ve never had much faith in those tribunals because I often feel you’re rolling the dice,” said Duddeck.
MZOs need transparency
While technically the withdrawal of an application isn’t part of a public planning process, Paul Lowes, president-elect for the Ontario Professional Planners Institute, says the public should recognize that all planning decisions are ultimately political decisions.
He adds that OPPI recognizes the merit of MZOs in limited circumstances but has urged the province to create more transparency around their use.
“We have suggested they should be supported by a planning justification report – just like in any application is supported by a planning justification report – that sets out why they are consistent with provincial policy and why they are needed in this instance,” he says.
Émard-Chabot would take it one step further, requiring some legislative framework providing parameters to the use of the orders and requiring all the documents related to an order to be published upon its issue.
“If you look at the research by organizations like Transparency International and so on, markers of corruption and the key risk factors of corruption are lack of transparency and concentration of power in the hands of only one person and that's what you’ve got here,” he warns.
“The more they are being used, the more it raises eyebrows in the legal or planning community.”
Despite repeated requests to both, neither Burton nor ClubLink agreed to be interviewed for this story.
