Comments and Rants is not for the faint of heart. I believe in the power of negative thinking. I believe the arc of Toronto planning bends toward doom. Fight against it with your eyes open.
Comments and Rants is a mixed bag of conclusions, short essays, notes and memos, more about general planning issues, for example provincial planning matters, than the Active 18 story. The West Queen West story illustrates many points. These screeds are best served to someone with a little knowledge of the system. But there are a fair number of links to the history sections as illustrations to help newbies along the way. These are not how-to essays on the basics although there are some that might help. These are essays about how the official system doesn’t work, and how you can work most effectively in a system that doesn’t work. And whether you should try.
And there a few memos on changes in the system as I write in April 2017, like on reforms to the OMB. I’ll try to be neutral in my speculations on how these will work out. No, on second thought, I won’t.
I did a Grand Rant in the 2008 version of this Blog. My despair eight years later is of the same quality, but now it’s broader and deeper and more detailed. Just saying. Some are for the nights you are feeling alone and looking for a bridge. You are not alone—there’s a long line at the best bridges.
I start with conclusions. The first round of conclusions are in itty-bitty tiny bite size slogans for tweet brains and reporters. Then we get to conclusions for thinkers. They have complex sentences and three syllable words. And then we get to whole pages of comments which contain contradictory ideas and predictions with qualifications, for normal people.
Looking Backward and Forward
Are there useful conclusions—looking backward—to be drawn from West Queen West fandango to help others dancing with the planning beast? Let’s try.
Conclusions looking back are partly covered by my various GOOD/BAD insertions throughout the text. These reflect my thinking at the time. Some conclusions looking back may be irrelevant as the rules change. Sometimes the rules have changed for the better, sometimes for the worse. For instance, the emergence of [provincial planning]/planning/comments-and-rants/#provincial-planning) as the main driver for the next decade does change a lot of strategies but certainly not all. Past patterns of behaviour still help predict the future.
The surprising strength of the building boom is a rising tide that floats some boats and sinks others. So conclusions should be taken with a life preserver handy and possibly an extra set of oars.
And what about looking forward? The demographic and financial parameters for the future are different. And the rules are changing. Is the past any help in anticipating the future?
That said—here are some conclusions, with links that take you deeper and backward and forward and sideways and all over the place. The first take presents them as ridiculously simple formulation. Then for thinkers.
Soundbites for snowflakes, tweet brains, and reporters
The terrible built form of the twenty or so new condos in the West Queen West Triangle is largely the fault of the Planning Division. Blaming the OMB is lame. [Secondary Plans]/planning/comments-and-rants/#secondary-plans) [Failure to Plan]/planning/comments-and-rants/#what-plan) North of Queen
The Planning and Culture Divisions did an excellent job on Section 37 benefits which helped, maybe, save some neighbourhood character. TMAC falling apart wasn’t their fault. [Jobs]/planning/comments-and-rants/#jobs-jobs-jobs) TMAC [Section 37]/planning/comments-and-rants/#section-37)
But looking forward, Section 37 will be a curse for healthy neighbourhoods, misused to increase density beyond good sense. [Section 37]/planning/comments-and-rants/#section-37)
Planners think too much about built form and not enough about the local economy and jobs. Their Avenues Policy is to destroy thriving local economies in favour of the franchise economy. [Jane, Jane, Jane]/planning/comments-and-rants/#jane-jane-jane) [Jobs]/planning/comments-and-rants/#jobs-jobs-jobs)
Prediction—the last best chance for community input will be OMB fights over whether there is consistency with provincial plans and policies. [Provincial Policies]/planning/comments-and-rants/#influencing-provincial-policies)
Provincial intensification policies are geared to stuffing the downtown with lots and lots and lots of people and no transit. [Provincial Policies]/planning/comments-and-rants/#provincial-plans) [Population Targets]/planning/comments-and-rants/#population-targets)
I have seen the arc of Toronto planning and it bends toward doom.
The days of community input in planning are over. The last loopholes are being closed. What will happen in place of significant community input will be outright political brawls in City Hall and on the floor of City Council and the return of dealmaking and petty corruption. [Process, Process, Process]/planning/comments-and-rants/#introduction-110)
Conclusions for Thinkers—Looking Backward and Forward
The Toronto Planning Division bungled so much in West Queen West that any argument that we should trust that Division is a non-starter. Supervision by the OMB is a tiny, tiny, maybe, helping hand. [How Planners Failed WQW]/planning/comments-and-rants/#how-did-planners-fail-west-queen-west)
It’s necessary to put in an appearance at the official and ridiculous community consultation meetings. But the real action is in the back rooms at City Hall. Coming reforms will make this all the more true. [Official Meetings]/planning/comments-and-rants/#official-meetings) [The City Hall Maze]/planning/comments-and-rants/#the-city-hall-maze) [OMB Reform]/planning/comments-and-rants/#omb-reform)
These consultation meetings focus on built form, stepbacks, sunlight etc. No denying these are important and need attention. Increasingly they were and are just training and warm up for the snake pit at City Hall. But the much bigger make-or-break issues lie within the Provincial Plans and their mandatory intensification requirements which can’t be touched in these low-level Official Plan and zoning meetings. [Official Meetings]/planning/comments-and-rants/#official-meetings)
Official Plans, Secondary Plans, and the like, were once a swamp of confusion but also vigorous debate in the community and at the OMB. They were at least a chance for local communities to have some influence. Now the Province’s policies of mandatory intensification trump everything and make these meetings largely irrelevant. [The Official Plan]/planning/comments-and-rants/#the-official-plan) [Provincial Planning]/planning/comments-and-rants/#provincial-planning) [Provincial Plans and Policies]/planning/comments-and-rants/#provincial-plans)
The District Planning System (DPS) has been passed but not implemented. It is described as “planning by goals”. What that means is that neighbourhood input is reduced to meaningless generalities and all power is handed to the Planning Division to make deals with developers which the community can’t challenge. If DPS is implemented, it shuts third parties out of the OMB anyhow. [DPS, The citizen squeeze]/planning/comments-and-rants/#the-citizen-squeeze)
OMB reforms that reduce the scope of matters that can be brought to appeal and reduce the hearings to written appeals, brief argument and no witnesses, are a plausible idea. They might help community groups to a significant degree by reducing the scale and cost of OMB appeals. [OMB Reform]/planning/comments-and-rants/#omb-reform)
Making conformity with provincial plans the test for the OMB might open the door to huge debate. These policies are more vague than the Official Plan provisions we now wrestle with. Some of these policies might be good, if the OMB successor can actually be persuaded to enforce them. [Provincial Policies]/planning/comments-and-rants/#provincial-plans)
“Heritage District” designation is emerging as a tool to fight over-intensification. Get the old low-rise buildings designated so they can’t be replaced by new condos. It’s not simple but folks are desperate. Heritage districts are really just a new way to preserve neighbourhoods when the older planning rules are gutted and useless. [Comments and Rants—Heritage]/planning/comments-and-rants/#heritage12)
Community planning activists need to shift their focus. Built form issues are not enough. Money is where it’s at—money, taxes, budgets, taxes, money and budgets. Did I mention money? The root of many, many, many problems is an under-funded government. These are problems that can’t be solved by stepbacks. [Let’s talk about money]/planning/comments-and-rants/#let-s-talk-about-money)
The era of community input in planning is over. Live the new life if you care about your city. [The citizen squeeze]/planning/comments-and-rants/#the-citizen-squeeze)
The NIMBY Argument
The standard attack on community groups is you’re a NIMBY. (NIMBY = Not In My Back Yard.) It’s builders’ and newspaper code for “you’re rotten, stupid and selfish and standing in the way of progress by opposing this beautiful building with your foolish objections that waste time, and which we’ll look after in the back room.” Now that might be true in some cases. But mostly it’s name-calling by BILD, the developers’ industry voice. It is distressing how often the newspapers pick it up and parrot it.
Active 18 survived this, sort of, because we were about the public interest. To be fair, the West Queen West fight was never about busting an existing residential neighbourhood. We were dealing with mostly vacant land. We always came not just with helpful suggestions. We came to the public meetings with better slide shows than the other side and spoke to the public interest.
The trope is deep and nasty. One recent example. I was testifying in the recent 1181 Queen West OMB case and David Bronskill,a leading development lawyer, accused A18 of opposing all the tall building in the WQW fight. He knew better. He was at the OMB. He knew we supported his clients’ application for an 18-storey social housing building. He’s actually a nice person. But it doesn’t matter. The clichéd thinking and allegation is that anybody opposed to developers and their big buildings is fair game for stupid allegations. We know why the developers and the planners like this labeling. But why do the newspapers fall for it?
Remember what the builders do? They build and sell the condos—as many as they can get away with. You never hear them say, “we shouldn’t build until the new subway is finished.” It’s always, “Toronto needs more condos, more condos, more condos”.! Never—“so we can sell to foreign speculators looking to park their money who don’t give a XXXX about Toronto!” They take their profit and depart. Who causes the extended OMB hearings? Rarely the community groups and almost always the developers. For example, they fought tooth and nail in a massive OMB hearing to get “employment lands” redefined so they could build more condos. Not community groups.
Have your NIMBY arguments ready to go. Oh, and if you are being NIMBY—shape up!
Reporters are generally lazy and pressed for time. They need a press release, in writing, that they can copy out to make a newspaper story. You need to get it to the right person at the right time within the news organization. The media need an articulate person to interview. Don’t expect them to do any research.
Let’s Talk About Money
I’m a big fan of Cinderella’s wise fairy godmother, who told her, as she set out for the ball in a rented limo and a borrowed gown: “Sweetheart”, she said, “follow the money, forget the shoe.”
And here’s my confession. I’m a Johnny-Come-Lately to fairy-granny’s insights. The main one being:
The palace may have fabulous stepbacks and window articulation but—what’s the prince’s net cash flow before depreciation?
Which is a smart-ass way of saying—why are these mega-projects analyzed in the financial dark? Planners don’t want to talk about money. They’re stuck in the world of design. Some other city hall staff talk about budgets and taxes and money. But not planners. For Toronto planners it is heresy to ask a question like, “What is the profit margin here?”
And here’s the worse and darker evil. We citizen-activists are partners in this deluded state. We promote the illusion that better design is all it takes, hushing up about higher taxes to fund the City government. This was a bad tactic in the past. And it is disastrous going forward.
It’s not fair to say that politicians are ignorant about the money issue. Their life at City Hall is an endless grind of dealing with budget issues. Because planning discussions are supposed to be about design, they keep silent about the money. The politicians are so frightened of even the idea that there might be higher taxes there is little discussion of the consequences of underfunded government. I fear the vast apparatus of consulting the public on design issues is a way—intended or not—of channeling activists, distracting them/us, from knowing about and raising the more hard-edged financial issues.
Let me confess that I am a sinner on this front. And a beginner on the road to salvation. I am a babe in the woods. Big BAD on me. Let’s pull our heads out of the holes in the sand where we have been told to stick them, especially the hole called “design collaboration”, and consider some other facts, like money.
Residential property taxes in the city are dramatically lower than other regional municipalities. This is no secret. The prices paid for property in Toronto is boiling. Home owners are rich. They/we/I should be paying more property taxes. There is no excuse for an impoverished municipal government.
Recently the provincial government added some power for the municipalities to assist in providing affordable housing by allowing them to require affordable units in large projects. This twist is buried in new powers of “inclusionary zoning”. See [Affordable Housing]/planning/comments-and-rants/#affordable-housing16) and http://www.mah.gov.on.ca/Page13790.aspx.
Regulations are required to set out the details of how this will work. They will be complicated. I an a sceptic. Surprise! I believe the combined effect of this power and the province’s mandatory intensification will be bad for the downtown neighbourhoods. And the problems of enforcement of building standards will over time be horrendous.
My scepticism about “inclusionary zoning” as a solution to our lack of affordable housing is spelled out in [Comments and Rants—Affordable Housing.]/planning/comments-and-rants/#affordable-housing16). It should be read together with the expanding powers of the province to force intensification. See [Comments and Rants—Provincial Planing]/planning/comments-and-rants/#provincial-planning).
Where do we start!
In April the provincial government imposed a 15% tax on foreign purchasers. The theory is that “hot” foreign money is driving the condo boom. A month later it doesn’t seem that this has cooled prices much. If the super-rich in foreign lands really want to buy property in Toronto as a safe haven for their wealth, who can blame them? And if they occupy or rent units out, what’s the problem?
Another theory has it that cheap interest rates are fueling the boom. Predictions abound that housing prices will soon collapse. If interest and mortgage rates go up, and houses and condos are more expensive to carry, then prices will come down. But there is nothing to say people won’t indeed pay more to live in the core because it’s desirable. And I would say it is preferable because moving around in the city is so impossible that it’s the best option to survive in the city.
These financial factors are not things planners can control. Indeed there are no clear answers of what way these mega-trends will flow. Planners can only respond. And their response seems to be to restrict this super-growth in demand to the designated growth areas.
- The province is doing the right thing by concentrating the growth in super dense core areas.
- But doing the wrong thing by doing this without massive transit and infrastructure improvement.
- Governments can’t—or won’t—afford the infrastructure improvements.
- And we—in the inner cities—are doomed.
Why is the destroy-and-rebuild assumption underlying just about all zoning and housing policies unchallenged? What is the true cost of demolition and rebuilding as opposed to retrofitting old buildings? Why is it never analyzed? Are there fewer jobs in retrofitting? I doubt it. But there is less profit in property flipping. And from a strictly conservationist point of view, what is the true cost of waste disposal? What is the true cost of gravel and sand extraction necessary for new construction? Are Building Code regulations rigged against retrofitting?
Marie Antoinette said, “Let them eat cake.” The planners have a saying, “Let them have meetings.”
This is a section where my views have shifted a lot, especially with the coming changes in the “planning process” with stronger provincial policies on [intensification]/planning/comments-and-rants/#provincial-planning)and the [OMB reforms]/planning/comments-and-rants/#omb-reform).
My earlier view might be summarized as: It’s a jungle. Do your best. And watch your back in City Hall. This view is reflected in most of the following memos.
But given the changes in the law coming in 2017, my current thinking has evolved. It is best summarized in “The Citizen Squeeze”. It is basically this: The days of citizen input are over. The fight for a decent downtown will shift to City Council and the Province and it’s about money. See [Provincial Policies]/planning/comments-and-rants/#provincial-plans), [Mondey]/planning/comments-and-rants/#let-s-talk-about-money), [Transit]/planning/comments-and-rants/#transit), and [OMB Reform]/planning/comments-and-rants/#omb-reform).
The Citizen Squeeze
For all the frustration of which I complain in this extended blog—which are many—I have felt until recently that the effort was worth it. Someone in the planning bureaucracy was listening, even if they wished they didn’t have to. I mostly felt our suggestions would be tested. Put another way, it was accepted that citizens had a useful and legit voice.
But what I have observed in the past two or three years is a systemic effort to purge citizens from the planning process. The emerging attitude of planners and newspaper reporters and the sum total of the various procedural reforms coming down the pipe is to get rid of us. The reforms are touted as encouraging citizen participation. The end result is clear enough—they’re bundling the citizen noise into disposable packets.
I’ll illustrate what I mean in a moment with some links.
But here is the big picture about the swing of the political pendulum.
Forty to fifty years ago Toronto City Hall was famously corrupt with the councillors rubber stamping projects for their preferred developers. The ignition rhetoric was “backroom deal”. The giant brawl over St. Jamestown comes to mind. The fights got so heated that the province stepped in. The supposed cure was to impose elaborate rules and procedures developed to give the citizens a “voice”, open up the discussion, eliminate the back room, and let the citizens duke it out at the OMB, if it came to that. The premise was that public scrutiny and participation would cure the broken planning system.
But the planning issues became much more complex as the building boom progressed and the city grew and the developers wanted to get rid of the citizens because they stood in the way of quick approval and mega-profits. And so the NIMBY rhetoric was developed.
(The NIMBY argument is 85% rubbish. The monster OMB hearings which tie the system in knots are caused by the developers and their constant pushing for more and more, faster and faster. Not the occasional citizen fight.) [More on the NIMBY argument]/planning/comments-and-rants/#the-nimby-argument).
So now the pendulum swings the other way. Now is the season to drive the citizens out, discredit them and get more and more buildings squeezed into the downtown.
Planners are good at this. Young and eager planners think citizens are in the way. It’s a big generalization but I’ll throw it out there. Even just ten years ago, Planning staff were cordial and reasonably respectful. One felt they were on the side of “good planning” Now the attitude is: I have to listen but you know nothing compared to me.
The long-term and big picture effect is predictable. The door to real dialogue and influence are being shut. Developers and citizens will besiege the councillors, who are the only persons left with any power to resist the planning bureaucrats. Money will win over votes. Corruption will come back. Real money corruption, maybe. But the City Hall brawls over development proposals—definitely yes.
And thirty years from now the cry will go up—the way to fix this is to open up the back rooms and let the citizens have a view and a voice.
And we’ll start over, where we are now.
How to shut up and shut out the citizen
The Development Permit System (DPS) gives citizens a token say-so in setting goals for local planning, then shuts citizen groups out of further discussions (except at City Council) and hands over control of deal making with the developers to the Planning Division. Warning— just try and get goals sufficiently specific to be any good! Under DPS, citizens (code words—“third parties”—would not be allowed to appear at the OMB. Nirvana for the Planning Division and developers.
This is almost unnecessary in 2017 because the Planning and Legal Divisions have manipulated the [process of not reporting]/planning/comments-and-rants/#the-city-hall-maze), getting settlement instructions, mediating at the OMB and settling behind the backs of would-be citizen participants, so that citizen groups are with rare exception squeezed out of argument at the OMB.
Provincial plans are now so dominant it doesn’t matter much what the local Official Plans say. The Province rules! The Province says—intensify, end of discussion. And forget more downtown transit! All those budget fights for more transportation dollars? Those dollars will be spent to bring more people into the downtown!
The place where citizens seem to have some slight input—changes to Official Plans and zoning—are now mostly irrelevant in the face of the provincial take-over.
The OMB reforms currently on the table say that the only role for the OMB is to rule whether the various proposals conform to the provincial plans and policies. And that plan is written on high. It can’t be challenged on the key provisions. And they trump whatever the local objections might be.
The so-called citizen advice office in the OMB reform package is mostly useless. What good are more bureaucrats telling us—far too late in the game—“this is way it’s going to be. We aren’t allowed to help you argue the basic point—too many people!”
The idea that planners are experts in making a good community grows and grows. What it really means is, shut up—we know what’s good for you.
Who actually listens now? In my experience it is the councillor who is last person standing who has a little power in the planning system.
If I were a politician the last job I would want—assuming the building boom continues—is to be a downtown councillor on the receiving end of the rage to come as the downtown neighbourhoods are destroyed.
- Public participation in the planning process through the numerous, official public consultations where we all sit around a round table and do crayoning is mostly phoney. Effective decision-making is regularly and systematically moved behind closed doors.
- Citizen groups do have an important and helpful role to play in the planning process. The first job is to attend those fool meetings with the crayons…and bring a lot of friends and…shout at people, anybody. No, I take that back. Speak firmly but nicely. We are Canadians, after all. The next job is to find those closed door meetings and open the door. And go in. And…speak firmly to the bureaucrats and the councillors and tell them what to do—in our uniquely Canadian fashion.
- Built form planning—height, sunlight, stepbacks, etc.—the thing citizens are allowed to talk about in the crayon meetings—are mostly distractions from other critical issues that we’re not invited to discuss, like population targets, transit, demolition and jobs.
- I hate criticizing these public meetings. I believe in true and meaningful consultation. My criticism might be misinterpreted as me being against public consultation. Not so! I believe that to the maximum degree possible we should have consensus politics. I believe the struggle to get to consensus is a good thing. I think structured mass meetings about the local communities by the local community are a good thing. It is how consensus politics can and should work. But I hate it when the consultation process in planning is detoured into discussions that are meaningless. The meetings should start not with the Pollyanna—“tell us what you’d like”, but rather with the real problem—“Hey gang, here’s our predicament! We have no real plan to start with. And here’s what City Legal will do to your ideas at the OMB so it doesn’t matter what you think. Furthermore the provincial policies says this. And this is how much it will cost to fight. And we have no money. And last but not least—I’m not allowed to tell you anything that dissents from provincial policy or my boss will bust me.”
Process is important. But there are so many twists and turns in the required and the informal meetings—in public and in the back room it is almost impossible to sort out.
The Planning Act requires certain public meetings to discuss any development proposal that has been filed at City Hall which requires an amendment to the zoning —and most do. These public meetings are probably the most visible thing that happens, with notice to the neighbours and a presentation somewhere in the neighbourhood. The Councillor usually attends.
But there are lots of meetings, formal and back-room, within City Hall and they are more important to the actual outcome. And the “outcome” at City Hall is the directions, or lack of them, as the matter moves forward. And at the OMB stage there are more twists and turns before the matter actually gets to a hearing. And then many procedural issues as a hearing progresses.
Anywhere along the way a case might get settled.
The basic rule for community groups is this: If you don’t participate at the early stages you can’t be a Party in the OMB proceedings. And if you’re not a Party you get left out of negotiations and the settlement.
If you do become a Party then you’re obliged to organize expert evidence and do a shitload of work to get ready for the full OMB hearing.
At every step very nice people are trying to get rid of you. You are a pest.
It boils down to this. The public meetings at which you are invited to express your views are largely meaningless and you will not be invited to the meetings that count—the OMB hearing—if you don’t put in your time at the meaningless prelude. If the case actually progresses to a public OMB hearing where you are excluded as a Party, you don’t count for much.
Usually in the contested cases your best ally is the Councillor. The real struggle is: - over exactly what instructions the councillors give to the Legal Division regarding the City’s position at the OMB, - whether Legal actually follows those instructions - and whether settlements engineered by Legal are then adopted by City Council (which often turns on what the local councillor says.)
Oh, and by the way, as I write, the Province is getting ready to [change the powers of the OMB]/planning/comments-and-rants/#omb-reform). Get ready. One thing won’t change. The real decisions will be made in the back room.
Almost every development proposal requires a zoning amendment to the then current applicable zoning and the the applicable Official Plan provisions. Because? Because … they almost always want to build more than is permitted by the zoning and Official Plan. And so, every proposal has to be presented in a public meetings, where the public can comment. The Planning Act has list of Rules about required public consultations at various stages of the process. For example, see Planning Act Sections 17(15). Or go to one of the useful sites on process.
Very often, these meetings take place after the developers and the planners have already meet and discussed the project in detail and tacitly agreed what the changes to the zoning will be. Nobody will admit they’ve agreed. Indeed, all that the planners actually do is a submit a report with recommendations to the City Council, which technically makes the decision.
The official public meetings to consider development proposals are mostly a sham. They rarely influence the planners. (That doesn’t mean you might not influence the planners in other discussions.)
It’s too late at that stage—after the developer makes their application—to change the zoning down to prohibit a proposal that otherwise fits within rules. (The planners’ failure to put in place proper Official and Secondary Plans in advance of development is a failure we see over and over.)
But the public meetings may be important for another reason. Politics. Gasp! The Councillors pay attention to who’s at the public meetings, how many, who’s mad, and how loud they are. I once saw a large and angry public meeting denouncing a particular project and the Councillor got up in the meeting and said the proposal (in its current form) would not pass at Council. Period. That’s not part of the Planning Act. That’s politics. In the back rooms in City Hall where “they” decide, they talk about the noise at the public meetings as much as the content.
These mandated meetings have a formula that is fairly rigid, although not required by statute. Someone from the Planning Division gets up and supposedly explains the project to be discussed, e.g. Great Pile Building Inc. wants to re-zone to allow a fifty-storey condo. Perhaps the planner for Great Pile will do a short presentation. Then the members of the public will be sent to tables in groups of six to ten and given big paper and magic markers or crayons and asked to discuss “what they want”. And after half an hour each group will report to the big meeting and the planner will say “thank you” and gather up the magic markers and you will be sent home. What happens to that public reaction? It gets listed in the planners’ report that goes to council. Period.
The real decisions are being made elsewhere. Your job is to find out where and be there.
One of the most serious flaws in this manner of engaging the public is the consistent strategy of not telling the meeting the reality about the legal predicament. For example, the existing zoning permits a thirty storey building anyhow and there is no chance to get less than that. Or that there is no chance of getting this developer to provide a park. The planners don’t want to open the door to a discussion about what they should have done before this application was filed. Cynical? Me? (See [Trigger Warning]/planning/comments-and-rants/#introduction).)
It is totally legitimate to say that elected public officials have to make the final decisions. It is totally illegitimate to pretend that the public have any substantial influence via the phoney process of public consultation they have been put in place.
I have had both good and bad experiences. I have been welcome or excluded from sensitive discussions. Bureaucrats vary widely on whether they can admit emotionally that the public actually might be helpful to them. Your City Councillor ought to be your best ally in all this. If they are not, you might consider tossing them out in the next election.
Sometimes confidentiality is totally proper. The City is a corporation with legal business to do on behalf of its client, the City Council, which is the body responsible to all the people. A lawyer’s opinion on trial strategy, or a settlement position, is quite properly confidential. But often this is an excuse for excessive secrecy—BAD—where it is really hiding an awkward political decision in the guise of legal strategy.
The City Hall Maze
Once a development proposal has been filed and the requisite supporting reports are filed by the developer, the Planning Division is supposed to do a report to Community Council making a recommendation for or against. Developers and community groups can make deputations before Community Council on the issue. Then Community Council accepts, amends or rejects that report and drafts instructions for the Legal Division on what to do at the OMB. For example, Planning recommends rejection, Community Council adopts that recommendation and directs City Legal to oppose at the OMB. Technically the instructions to Legal come from the full City Council which usually rubber stamps the decision of Community Council. Usually, but not always. Instructions to the Legal Division are the exclusive jurisdiction of the full Council.
Community groups and developers often appear at Community Council to support or oppose the resolution on whether to fight the case at the OMB.
There is a twisted and difficult process problem that has become quite common in the last few years. The procedure described above often doesn’t work.
The Planning Act provides that once a developer has completed an application for a change in zoning and/or the zoning relevant to a project, then the City has 90 or 120 days to say “yea” or “nay” (depending on the size of the project). If there is no decision in the required time, then the developer has the right to ask the OMB to decide on the proposal without the City having taken a position. The City can still be a Party at the OMB hearing. Indeed, it always is a Party and thus the City gets around taking an official position for OMB purposes until “later”. The file may be in mediation at the OMB before the City has taken a position and that may be something the Planning and Legal Division make up because Community Council still hasn’t passed a resolution on the subject.
Often what comes out of City Council is an instruction to the Legal Division to “go and negotiate”. The exact wording that Council uses in variants of this problem may matter, e.g. “attend and oppose but negotiate” or “consult the community groups and negotiate” or…or…
If the Planning Division does its job, it reports to Council based on the various professional reports that have been filed and gives its opinion on whether to approve the proposed zoning changes. There is a specified set of professional opinions required of the developers before their proposal can proceed. (Some say the city staff defer to these outside experts hired by the developers much too easily. But that is another story.) More typically—if there is a report—it will recommend negotiations, or perhaps recommend to “fight it” at the OMB.
Here’s the problem. More and more often Planning doesn’t get a report done within the 90 days and the file passes on to an OMB case. Then the Legal Division takes charge of the file.
As a practical matter what this means is the negotiations with the developer proceed behind closed doors at the OMB in mediation. Or, maybe, behind closed doors between the Parties. In fact what has been happening is that the negotiations go on between some of the Parties—the City and the developer to be precise—and the other Parties, the community groups who have signed up for the OMB Hearing as Parties, are left in the hall.
The procedural effect is that the public debate at Community Council about what the City’s position should be—at which the public has the chance to make deputations—has been eliminated. And replaced by secret negotiations from which we are excluded. This is BAD
The push and shove in the back room as all this plays out is BAD.
The Councillors are trapped. Their constituents want to know what the Legal Division is doing. What position are they taking? Not a good answer to say—“Sorry, our lawyers tell me it’s all privileged and secret.”
Sometimes I think the Planning Division doesn’t report on time deliberately in order to get the community groups out of the room where the negotiations are taking place. BAD BAD Planning will be negotiating with the developer and indeed have a position. By not reporting, there is no formal Council position and the case proceeds at the OMB on the developers motion, the lawyers take over, and cloak the negotiations in “privilege”. It is a back door way to put the power in the hands of the Planning and Legal Divisions and cut out the community groups. And the Councillors.
Community groups more or less have to become Parties in the OMB proceedings to be able to influence the settlements and that is no guarantee you will be included in the negotiations. What will happen is that Legal will report back to full Council their recommended settlement in a secret Council meeting.
It forces difficult choices on community groups just to have a limited say in a settlement. They should in my view apply to be a Party so the case cannot proceed at the OMB without their participation. And if the City settles in secret then the group can proceed on their own anyhow. (Not a great position!)
The excuse by the Planning Division that they’re understaffed doesn’t cut it anymore.
The effect of all this is that for community groups the best strategy is to pressure your Councillor to pressure the Legal Division to be sure they take the position you advocate.
It is a stupid mess. No, on second thought it’s not “stupid”. It is often deliberate—deliberate to get rid of “trouble-makers”.
The Ontario Municipal Board is everybody’s favorite whipping boy—except mine. “An unelected body ought not be allowed to overrule the elected city fathers” is the familiar cry. See WQW at the OMB—the Appeal and Documents—Clippings 2007.
The Province is currently soliciting public input on OMB reforms. It is a hot topic in March 2017. More on this below.
My heretical view is that the OMB is bad because City Planning and City Legal so often present a bad case. And this is mostly because the underlying planning the lawyers have to work with is not up to snuff. Removing the OMB leaves us in the hands of city planners—with no recourse, no potential overseer, to correct them. Toronto will be worse off if the OMB is taken away as a top level appeal body to hold them in check.
I’m no fan of the OMB. They did bad things in our Triangle case in 2006. See WQW at OMB. In the more recent past I’ve seen them, or heard of them, helping community groups somewhat, slightly. And this is better than being left at the mercy of the Planning Division.
I make this observation with faint enthusiasm, because the drift—or the cunning plan —of OMB and planning process reform (see [District Permit System]/planning/comments-and-rants/#the-district-planning-system)) is to get rid of the neighbourhood voice from the OMB anyhow. Why am I protecting a right to complain when they’ve rigged the system so I will not be heard at the complaint wicket? We need to scrutinize the reform proposals to see where we—the community—will stand when the dust settles.
[Depressing? Why yes. But didn’t I give a trigger warning at the beginning of this chapter. I did!]
The appointments to the OMB here have generally tracked the political sentiments of the government in power at Queen’s Park (“liberal” governments, like Davis and Rae, appointing folks somewhat sympathetic to the community, and the Harris government appointing folks much more sympathetic to the development industry). OMB members are often in office for ten years. Thus the political complexion of the OMB is slow to change and on occasion may be more progressive than the sentiment at City Hall.
In the past ten years with progressives more or less in power in Toronto and the OMB more or less in the hands of pro-development appointees, conventional downtown wisdom is that communities would do better without the OMB. But there was a time when the Toronto Council was in the hands of pro-development councillors and the OMB made some decisions in favour of community groups. Be careful what you wish for! While I agree with the sentiment that the OMB power over Toronto planning should be abolished, I have these reservations. This argument has become an excuse for poor planning by the City where better plans would, I believe, do better at the OMB.
But all the talk about pro-development bias misses the more important point in 2017. The Province requires the OMB to enforce its intensification policies. Even moderate members sympathetic to community concerns are under the gun. Development planners and lawyers say the magic words—“this project implements the Province’s intensification policies”. What you get isn’t bias, it’s obedience.
Going to the OMB
Whether and how to go to the OMB is a key issue for community groups. It represents a huge commitment in time and money that is beyond the reach of almost all community groups. For a community group to admit or declare early in the planning process that they can’t and won’t go to the OMB seals their fate. It’s hard to be heard in the settlement discussions at the best of times. To bow out of the key fight—at the OMB—is likely to doom you to irrelevance. I see groups over and over put their fate in the hands of sweet-talking City planners, believing they will look after the community interest at the OMB. And what happens over and over is, City Legal comes in, takes over representing the City and settles the case regardless of what the community thinks or wants or was promised. Or it may be the planners who settle the case. Message: Do not trust City Hall bureaucrats to look after your interests.
Experienced community activists will advise, if you can possibly manage the work, that community groups should sign up as Parties instead of Participants when the OMB case starts with the first pre-hearing. This gives you standing to proceed and make a case at the OMB if the City settles behind your back at the last minute. To be blunt, your chances in such a hearing are very poor unless you have great expert evidence. But the alternative is to be a mere Participant and coattail on the City lawyers and hope they do a good job. If you are a Party you can present your own evidence and cross-examine. Participants cannot. Remember The City, not the community, is the client of the City lawyers. They won’t let you forget it.
The last hope is that the local councillor will lean on the Legal Division to fight hard. And that you can influence the OMB proceedings indirectly with the Councillor’s help. Sometimes aggressive Councillors (aggressive for their citizens groups, that is) will word City Council Instructions to Legal staff acting for the City at the OMB, trying to stop last-minute negotiations and settlements that exclude the community. Mostly this doesn’t work. See [City Hall maze]/planning/comments-and-rants/#the-city-hall-maze). City Legal—like many planners—just believes that citizens at the OMB are a bother.
This brings us back to the beginning. Rambling citizen loudmouths at the OMB without experts are a bother to the professionals who have spent thousands on expert evidence. I do indeed think some of that expertise is bogus. But if you’re going to play with the pros you’re going to have to put on some big boy/big girl pants.
What is awesome and terrible to behold are those occasions when a a community representative at the OMB Hearing does the homework, masters the rules, choses issues wisely and has a bit of influence in OMB hearings. Terrible, because it’s a full time job to crank this out.
The demand to reform the OMB is long-standing. The OMB has been blamed for all bad planning. Never mind my objection that the OMB itself is not the biggest problem. The Province has been studying the OMB problem for some time. And on May 15, 2017, the provincial government’s press releases on OMB reform finally appeared. The actual draft legislation was introduced May 30, 2017 as Bill 139. Go here for an outline of the statutory changes.
We are getting a renamed tribunal, called the Local Planning Appeal Tribunal (LPAT), to “replace” the OMB. But it’s not a new tribunal, only the same OMB personnel with a new name and reduced and modified powers.
The general presentation of the reforms couches them as promoting community control. But “Community” here means municipal governments, not community groups. Local planning departments seemed pleased that they won’t be held in check by the OMB any longer.
How the complex set of specific reforms will actually work in practice is an open question. It will take several years to see how this all plays out.
I am by nature a contrarian. So here are some non-conforming ideas. Discussion follows.
- the simplification of OMB hearings won’t be so significant;
- costs will not be reduced significantly;
- still, some of the procedural changes will help community groups at the OMB;
- unless the Development Permit System (DPS) system is implemented to exclude third parties at the reformed OMB;
- the new test at the OMB is “conformity” with provincial policies. This may turn out to be an atomic bomb. “Provincial policies”, if read with moderate rigour, could blow up many zoning proposals. For example, Intensification is supposed to produce “complete communities”. Will the OMB actually do that?
There is no best order of discussion to sort this out. Here goes.
Type of Hearing
The appeals from local municipality rezoning to LPAT will now be on the record of documents that were before the local council, not based on a fresh hearing of the evidence. Government material says there will be no examination or cross-examination of witnesses. This is described as abandoning the current practice at the OMB as a trial de novo—which is a legal expression meaning a fresh trial, starting over, with all evidence presented anew.
The trial de novo approach at the current OMB means longer hearings and expensive expert witnesses. The planning experts produce a written report, testify in person, get cross-examined and re-examined, then come back to listen to the rival expert testify, and then advise their side’s lawyer how to cross-examine those experts, and then might come back to give reply evidence in turn, which is often in the form of a written report. In terms of time spent, the experts earn their fees.
And the cost of experts has been one issue community groups complain of. This often comes out in the press as a complaint about the length of the hearings. In fact the length of time the experts actually testify is a smaller element of their cost.
Government material also says in the future there will be time limits for parties to make arguments. (This is no big deal. In major court trials there will be written submissions at the end and then lesser time for oral submissions.) The OMB could do this now if they wanted. Preparing the closing argument is the time monster, not the oral presentation.
The more detailed Government material says that de novo appeals would be eliminated for the majority of cases.” So…will there or won’t there be witnesses at the new tribunal? Is this the loophole that ate the rope they extended to Jack to hang himself?
- This doesn’t mean there won’t be oral argument before the new Tribunal. That could be eliminated as well and it might reduce the cost a little. But the cost of preparing written submissions almost always dwarfs the cost of the time to stand up and say them.
- If there is oral argument, that could well develop into an occasion when community groups can appear on a somewhat equal footing with municipalities and developers and argue their case, especially if the argument is truly based solely on the documents used at the “lower” level, i.e. City Hall.
- The cost of cross-examination at a full hearing is just a whipping boy on the cost issue. A huge cost item is the cost of the necessary experts—two parts, preparing the report and then attending to testify.
- Under the new system the cost of retaining an expert and getting a report will now be necessary at a much earlier stage—as the case is argued at City Hall. If the experts don’t have to, or aren’t allowed to testify, that will save some money. Prediction: the “exception” about testimony before the reformed Tribunal will be for the experts. Cross-examination of the experts is useful, hate to say it, lawyer-haters.
- There is nothing to suggest the proposed Support Centre will have money for experts. Let alone at the early stage when it would actually be helpful.
- Maybe the biggest cost inflator is hearings that go on and on because there are numerous parties. This is hard to fight. Many people have legitimate and different interests. The typical extended hearing is one that involves high-level Official Plan changes, e.g. changing the definition of “employment” lands. The more restricted jurisdiction of the revised Tribunal as described below may help that by cutting down the occasions when such issues arise. That sounds good. But the new bottom line test whether the changes “conform” to provincial policies has lots of potential for debate where many more parties than the immediate parties may care about how the test is applied.
- Audi alterem partem is the legal principle that a person whose rights are being decided by a quasi-judicial official has a “right to be heard”. Denying the right to be heard is the meat and potatoes of administrative law. This doesn’t necessarily mean being heard orally in argument. There are numerous cases on what and how the right to be heard is to be played out. The virtue of the trial do novo hearings at the OMB is that any errors in recognizing this right at the earlier stages can be corrected because the whole decision and its merits are tried again. In effect it erases any past procedural errors.
Abandoning this curative function will cast the spotlight on the earlier stages of the process at City Hall. Did the parties whose rights have been affected have an adequate chance to state their case? It is predictable that this problem will lead to audi alterem partem litigation in the courts.
Generally this new approach will mean the proceedings within City Hall will be much more contentious, fastidious and litigious. It will be the only chance for many people “to be heard”, or seem that way. As noted, community groups will need experts and lawyers at an earlier stage. The Support Centre advice on OMB appeals, promised by the Government—whatever it turns out to be—will be too late in the game to be of any effective help.
Referred Back to Municipal Council
The PR material and flow chart from the government tell us that if the new Local Planning Appeal Tribunal decides against a proposed by-law it will refer the matter back to the municipal council for re-consideration. Then the matter could go back to the LPAT on another appeal based on the “conformity” test.
Two hearings, and a Council re-consideration, are not simplifying anything!
The government material on May 15 boasted there would be mandatory mediation and a refinement of the issues that would go forward.
Mediation means to meet and discuss and see if there is agreement, not to rule on issues before the actual hearing. But many mediators pretend they are judges and do make “rulings”.
A different type of hearing is held to get the issues sorted out and the positions of the parties clarified, a pre-hearing. This already exists. The Government pretending this is a reform is puffery.
Mandatory mediation might put the skids under some stupidly obstinate parties.
One of the promised reforms in the pess release is a “support centre”, a new agency to provide free information and support, which may include representation at the Tribunal for citizens who want to participate in the appeal process.
This is largely window dressing. The rest of the reforms are designed to make the appeal process pointless. It’s too late for citizens at that stage. What they need is independent experts. These cost money. Without experts (whatever my skepticism about them might be) there isn’t a lot you can do. Further, and most emphatically, getting advice at the last stage of OMB appeals is way too late. The key fights will have already happened at City Hall.
If community groups are excluded from arguing at the LPAT then whatever chance there is to argue that a zoning revision does not “conform” with provincial policies won’t matter. The legal process and the power to make this exclusion of community groups is in place in the [Development Permit System (DPS)]/planning/comments-and-rants/#development-permit-system). It allows the City to impose this restrictive planning regime which effectively shuts third parties out of OMB appeals. It remains to be seen whether this is in fact imposed. If it is, it will further stress the importance of proceeding in City Hall as the last, best chance for community groups.
Aside from the process of deciding, what change will there be in the substance of the decisions by the reformed OMB/Local Planning Appeal Tribunal(LPAT)?
Issues: * Jurisdiction—how is the right to appeal being restricted further? * What test is being applied? * What can the new tribunal do?
Jurisdiction—Restricting Types of Appeal
By restricting the types of cases that can be brought to the OMB, the government has tried to reduce or eliminate the monster hearings where developers challenge not just the zoning but the Official Plan provisions. The most famous examples have to do with developers trying to get employment lands released for condos or shopping malls. When the Official Plan can be changed as easily as a zoning by-law by a concurrent appeal the effect is to undermine the existing Official Plans. And the effect of the new restrictions will be to reinforce the authority of local planning staff and the local politicians. Generally speaking this a good thing.
There are already some restrictions in the Planning Act of this sort. The reform proposals introduce more.
Limits pre 2017 reform:
- Section 17(24.5) prohibits appeals on certain topics covered in an Official Plan.
- 17(24.5)(a)—various designated environmental areas.
- 17(24.5)(b) and (c) population and employment growth number approved under the Places to Grow Plan for the Greater Golden Horseshoe.
This means the provincially dictated growth targets cannot be challenged.
Boundaries of settlement approved by the Minister
- This means designations to stop sprawl and save agricultural land.
- See also Sections 22(7.1) and (7.2).
- Sections 17(7.3) and 7.1—bar appeals on removal of lands from areas of employment.
- No appeals for two years after adoption by Council of Official Plan amendments.
- Municipal councils must revise their Official Plans every ten years—to conform with provincial policies. And on that tenth anniversary revision the floodgates open for motions to amend the Official Plan by those whose proposals have been held in check by Official Plan provisions they have been barred from challenging.
- The recent provisions regarding “inclusionary” zoning—see Section 17(24.1.2)—can’t be appealed. See Section 16(4).
Proposed new limits
The Government release says the reforms will exempt a broader range of major land use planning decisions from appeal, including:
- No applications to amend new Secondary Plans for two years unless the municipality agrees.
- No appeals from Interim Control Bylaws for a year.
- Provincial approval of Official Plans and Official pPlan updates, including conformity exercises to provincial plans.
- Minister’s zoning orders.
(I think these last three restrictions already exist.)
Major Transit Areas—500 metres:
- The Globe and Mail reported May 12 that the reforms would include a provision that “would allow municipalities to bar challenges to approved developments near GO Transit, subway or light rail stations. The story says “within 500 metres”.
- The Government’s own material mentions this as “detailed plans to support growth in major transit areas.”
- The obvious intent is to further and speed intensification along transit lines.
- The story is written on the premise that residents groups must be stopped from objecting to such projects.
- Presumably this is a change the development industry will like because it will allow it and the city planners to build monster buildings—the most profitable kind—and shut down opposition from residents in the neighbourhood.
- What will be prohibited—objections to residential and/or retail?
- Will this be a general ban in the Official Plan or one that has to be imposed each time?
- My guess is that this more than anything else will politicize the development process at City Hall. When the only chance to stop monster projects is in the Council Chamber then the politics will get intense. The politicians will be wishing for an OMB to which they could toss such political footballs.
Test to be Applied
The substantive test to be applied is, supposedly, going to change. The Government press release says it will change from “best” planning. [This is a little off. The test now is “good planning”. If there is a difference, it wouldn’t seem to matter.] The current test in the Planning Act, Section 3(5), requires changes to be “in conformity with Provincial Plans” and “consistent with the [provincial] policy statements”. The Province’s flow chart says the test will be “conformity” But elsewhere in the text it seems to imply there will be two rounds of appellate argument—both appeals on the record. In the first it seems “good planning” might be the test. Then, if the OMB rejects the amendment, it is referred back to the Municipality for a fresh decision. And the appeal from the second decision will be on the “conformity test”.
Every board or council has to exercise its authority consistent with provincial policies (Section 2(5)) and the Minister must review policies every ten years Section 2(10).
The bigger point and problem is this. “Conformity” with provincial policies and plans is conformity with provisions that are extremely vague.
- Intensification is supposed to produce “complete communities”. Obviously a “good thing”. Whatever “complete community” means!
- An official plan must address Sections 2(a) to ®, including, among other things, “adequate employment opportunities”.
- What does “adequate” mean? Is some expert going to come and tell us that as a matter expert evidence?
- Places to Grow Act, Policy 22. Section 7, requires Intensification to provide, inter alia, “vibrant neighbourhoods”.
Whether a particular zoning change is in conformity with tests like these is a dog’s breakfast in a different bowl. The hope that such hearings will be simpler is questionable at best. The arguments that can be made by community groups opposing ill thought-out and incomplete communities, that is, intensification, are intriguing. Where will all this end up? My guess—long and erudite, expert-heavy LPAT hearings that seem much like the present OMB hearing—but with fewer witnesses.
What Can the LPAT do?
Notwithstanding the open-ended and uncertain test of conformity, it seems clear enough that it is intended that the new Tribunal not be able to substitute its own opinion on what can or must be done. The current practice which allows this is the key power which makes the OMB top dog.
On the other hand, by a finding on what the vague provincial policies mean, the new Tribunal can probably get to the same position of power over the planning decision. The reasons given in the LPAT decisions on this could leave the municipality with little choice over what to do when the matter is referred back to City Council.
Appeal to Court
The courts hate appeals from administrative tribunals for the good reason that they are often about questions requiring technical competence the judges don’t have. And the tribunals hate being second-guessed by amateurs. The cases where appeals succeed are the ones where there are clear and serious procedural unfairnesses or clear misinterpretations of the law. Appeals from the OMB as a planning tribunal have rarely been successful.
Do these reforms open the appeal door again?
The virtue of the trial de novo procedure was to cure all the procedural ills that came before. The OMB was a fresh start for everyone. But that is being eliminated.
Under the reformed procedure, all the opportunities (not much) for input for aggrieved property owners will occur at the City Hall stage. What goes on there is very far from judicially fair. I foresee many complaints to court under the new scheme where citizens argue their rights have been infringed and they have not had a fair chance to make their case to the person deciding the issue.
You’ve heard the expression, “what happens in City Hall, stays in City Hall”. Not any more! Now it will be taken to Court!
Who knows exactly how this will finally get sorted out? What is fairly certain is that there is a new layer of confusion, and lawyers waiting and licking their chops.
There are many layers in all this.
It is probably true that, despite my skepticism on how much the restrictions on jurisdiction will actually tighten things up, some power in planning will shift back to the local councils from the OMB/LPAT. This is supposed to be the virtue of the new scheme.
BUT IN MY OPINION THE SHIFT IN POWER THAT FOLLOWS FROM THE OMB REFORMS—WHATEVER IT TURNS OUT TO BE—IS MUCH LESS IMPORTANT THAN THE SHIFT IN POWER FROM LOCAL MUNICIPALITIES TO THE PROVINCE. “CONFORMITY” TO PROVINCIAL POLICES IS THE THING. THE REST IS DETAILS.
Assuming my prediction about this shift in power is correct, then local citizens will quickly learn and realize that City Hall is where the fight will take place. They/we will have to “get our way” with the Community and City Councils.
If you think the five minute deputations at Community and Executive Council go on forever, just wait! If the Councillors think their offices are busy—especially for the wards where most of the condo construction goes on—just wait! There is no part of the existing City Hall process that allows real scrutiny of the expert opinions in support of projects. The secret meetings between developers and the Planning Division where new proposals are vetted will now become hot tickets.
The OMB has functioned as a safety valve for years. The councillors could oppose projects and let the issue pass on to the OMB. How will that work now if indeed power passes back to municipalities?
The Government press release refers to this supposed shift of more power to “local communities”. What this means is the local municipal councils, not to community organizations.
I would expect that planning fights will become much more political. The worry expressed by the development industry that local Councillors will end up doing the bidding of the noisy NIMBYs has some truth. So does the unspoken flip side—corruption will come back in. The developers will need to win elections to make money. The forgotten benefit of the OMB—reducing corruption—will be fondly remembered.
Well advised community groups will lawyer up much earlier and the processes within City Hall will become much more formal and difficult.
Having said that, the observations earlier that maybe the vagueness of the test at the new Tribunal will generate a new type of argument, with some potential for community groups, bears some thought. Maybe there will be some hope for communities at the LPAT? Would the new Tribunal, ever, for example, stand up to the City and the developer and say that a proposal does not meet the test in the provincial policies that we end up with a “complete community”?
The Official Plan
To plan means to arrange the future—hopefully. This seems like a good and necessary idea when there are so many serious risks of future “bad things” that might be avoided with a little foresight. (If you’re a country mouse, you’re hard wired to plan for bad things—like winter.) The wise use of government power to require or ban things now because they may harm us in the future is right on for me, speaking as a country mouse. Assessing risk isn’t the strongest mouse skill. The key word is wise. Still we try. And all this is at odds with the spirit of the city mice who take risks, make their money NOW and move to Florida with their loot. Failure? Never happens. The kids can look after it.
The Official Plan is one of the key ways municipal governments are allowed to plan. They can control what gets built by zoning by-laws. That is, they can control the size and shape of buildings and the permitted uses. And they can—now they have to—have an Official Plan which spells out how they will change those zoning by-laws in the future. (See: Planning Act, Section 34) An Official Plan (the “OP”) is a document passed by a municipality in a by-law, but in accordance with special rules requiring public input. Have a look at one. See Toronto Official Plan, Changes in zoning have to “conform with” with the Official Plan. (Section 24(1) Planning Act.
But zoning power lets them say what you can’t build where and for what purpose. Compare this to a Soviet system where the government controls all the resources and can indeed direct growth because it has all the money. That’s a different kind of planning! The planning power of a city like Toronto is a relatively weak power but in an era of a dynamic growing economy the planning power is none the less significant. Where cheap land is in high demand the constrictions of zoning are the subject of plenty of disputes. Changing zoning rules keeps some Councillors—and the OMB—very busy! Which is, hey, what this blog is all about.
Since 2005, the Provincial Government has added an important layer to planning in the GTA: itself. The Official Plans of the local governments must be consistent with provincial plans. The main thrust of the province is to protect a green belt and enforce “intensification” in the core of Golden Horseshoe municipalities. In the big picture, the requirement of “intensification” looms large over everything at the local level. See Provincial Policies.
The Official Plan is the key document. It has to be reviewed every five years and amended to be “consistent with” provincial policies. This is the key way the Province enforces its planning will.
And just remember, even if you think you’ve hit rock bottom and you finally have the real, clear and true Official Plan rules the OMB can and often does change the Official Plan. It’s complicated.
The OP is the subject of colossal disputes. Some want it so detailed that the bad guys are excluded and prohibited forever from whatever. And some want it so vague that it effectively prohibits nothing. In the context of a never-ending battle the OP has bred numerous fringe planning documents and quasi-plans, e.g. Secondary Plans, Area Studies, Guidelines, and on and on, which baffle and confuse. A big boo for the bafflers, AKA—the planning bureaucracy.
There are more weasel words in Cerlox-bound piles than weasels in all the swamps of Georgia.
Can we make sense of this? Perhaps not. But let’s try. Take a Valium. We’re about to go down the rabbit hole.
In my 2008 write up I had a Section called Rants. One of my Rants was about the ineffectiveness of the Official Plan. My attitude and conclusions about it and all its permutations, off-shoots and overgrowth, and, indeed, the whole planning process, haven’t changed. The details have. There are more of them. More confusion. From the point of view of the community seeking some small measure of local input and control—it’s all BAD.
The usual problem for the average citizen is that, all of sudden, we learn of a huge building about to be built down the street that looks very bad for the community. So we decide to fight it. And as we dig in we find out it the planning system is so complicated it will take massive effort. But on a closer look it emerges the issues and the system are not actually difficult, just complicated. And there are always a few organizational whiz kids in every neighborhood who can handle the complications. When you discover the massive amount of money being spent by the development industry to push their projects forward you will feel puny. You call on the local Councillor, whether shrewd and helpful or dim bulb. Good luck. It seems like you’re making progress at City Hall but then a hearing at the Ontario Municipal Board looms. OMG! Lawyers! And expert witnesses! But then, you think, what are they expert about?
I’m not going to tell you have a good chance in all this mess and against such forces. You don’t. I’ll give you some suggestions how to maximize your chances.
It seems every new building is a new crisis and a new OMB case. This is exhausting for all community organizations. This is BAD. Why is this? Official Plans are supposed to put rules in place so that each new project isn’t a brand new problem and we don’t have to re-invent the wheel. Why doesn’t the Official Plan work as it was intended—which was to set out clear basic rules that don’t change?
One reason is that the building boom has overwhelmed the Planning Division. Another reason is that the permutations of “plans”, studies, Heritage Districts, Secondary Plans, provincial policies, Development Permit System, etc. etc. have diluted and corrupted the force of the Official Plan so that the process is close to meaningless. “Broken” is the nicest of the words that comes to mind.
Another reason is that it is way too easy to amend the Official Plan. Applications by developers are very often applications to amend the Official Plan so it conforms with their development proposal. And the OMB is very open to this.
The best advice to community groups is to get ahead of the game and fight to get Secondary Plans in place before development hits. But this advice means work before the crisis of actual proposals appear. Being proactive is very hard. We’re amateurs. Who has the time? See North of Queen for an example of Active 18’s partially successful effort to put a Secondary Plan in place against the opposition of the Planning Division. And see WQW at the OMB—Secondary Plan for the story of the disastrous effect of the failure of the Planning Division to plan ahead with a proper Secondary Plan.
Remember this basic rule—a developer has a right to build in accordance with the plans and by-laws in place when they apply with their plans to City Hall. Seems fair.
I’m not going to tell you citizen planning is easy. But I’ll give some comments about it that might work to your advantage. My opinion is that it is the best “bang for your buck” if you want to influence the future of your neighborhood.
The Official Plan Is So Vague As To Be Almost Useless
First, look at the Official Plan. Actually look at the clauses and the maps. Sounds rather noble and wise. Unless of course you want to know what the words actually mean. It consists of intentions and platitudes. It is, for example, ridiculously out of sync with the transit reality in Toronto. It has been written, in my opinion, to gut any clarity or rules in planning in Toronto so that every project is a subject for negotiation and a deal between the planners and the bureaucrats. In our 2006 OMB hearing on the WQW Triangle we had a week of expert evidence just trying to figure out what the governing Plan provisions were. If citizens wrote this document—if we had the time and resources to write this document—it would be clear and precise so we wouldn’t need to go a thousand meetings to discuss every new development proposal from the ground up.
The Official Plan is supposed to be the benchmark for land use and new construction in Toronto. New or amended by-laws have to conform to it. If the Plan says your neighborhood is single family, low rise, residential, the City cannot pass a by-law permitting a high rise. The problem is that other than protecting low rise residential areas (to be fair—a good portion of the City) the OP designations are so vague to be useless.
Here’s an example from the WQW story. Large swaths of lands along the railway lines that used to be the industrial core of Toronto and which are derelict old industrial buildings or simply empty fields are designated as “regeneration”. Go to Section 4.7 of the Official Plan. There you will find the definition of “regeneration”. It says, in a nutshell, that development shall not proceed until there is a Secondary Plan and the Secondary Plan will guide the “revitalization” of the area having regard to…creating jobs…restoring and retaining existing buildings…the unique character of the area…a heritage strategy…” Okay. Can anyone tell me what this means? The developers and the OMB drove a truck down this superhighway in our case. There were no teeth to the heritage provisions or the jobs provisions, nor was there any attempt on the horizon by Planning to get any. The “unique character of the area” really means “build condos”. In the Queen West Triangle case at the OMB our suggestion that it might mean something other than high rise condos for singles was dismissed as bizarre.
There is a way to deal with vagueness in the Official Plan. It’s called a Secondary Plan. It is a more detailed Section, added by way of amendment to the OP and applies to a particular area.
Another aspect of vagueness shows up when dealing with Regeneration Areas. The areas so designated in the OP are usually lands close to the railway tracks where factory buildings have been abandoned. The OP is completely vague as to what can be built there but says there should be a plan first. The City has no plan. And, as with the WQW Triangle, developers come along and do more or less what they want. These areas are likely doomed to massive high rises with no significant mixed use, inadequate parks, nothing for families, seniors or the poor. It doesn’t have to be this way. You can plan in advance. The category “egeneration” in fact means the City is supposed to plan in advance by doing Secondary Plans, but the Planning Division doesn’t want to. Neighbours are left to be reactive to developers’ plans—and are the losers at the OMB.
Vagueness is the easy part. Where the Plan might have a meaning that gets in the way of development, it gets amended. This has got to be a joke. Developers routinely apply for an OP Amendment along with their zoning amendment.
If the City won’t agree to change these, the developer can appeal the City decision to the OMB. Another end run is this. The City fails to respond to or make a decision on the developers application, then the developer can apply directly to the OMB. These are the high profile OMB fights you read about.
The Province put a slight break on this by barring applications to amend the OP and certain kinds of amendments, those which eroded Employment Areas and expanded subdivisions into surrounding Agricultural land (see Planning Act section 17(24.5)). In the GTA the Employment Lands reserved for “heavy” industry are a prime target for raw land to build more condos.
This ban applied except when the Municipality did its compulsory five-year review and amendment of its Official Plan to bring it up-to-date and into conformity with ever evolving provincial policies.
So when the City finally brought in its proposed general review of the OP in 2012, including amendments regarding Employment Lands, there was an avalanche of industry amendments as well as many individual proposed amendments to try and free up development sites.
The Province, in 2017, is proposing further restrictions to the jurisdiction to amend the Official Plan. This may cut down some of the endless rewriting. But the effect of the jurisdiction changes at the OMB are minor compared to the Province’s own plans which require intensification.
One of the root problems of the Triangle fight was the fact that a detailed Secondary Plan was not in place for the area before the development wave hit. The OMB can overrule a Secondary Plan but it is hard to justify doing that when that plan is up-to-date and backed up by experts.
The Area Study required for the WQW Triangle could have been the basis for a fresh Secondary Plan for the Triangle with some teeth if it had been in place before the development applications hit City Hall. Developers generally have the right to have their applications considered based on the in-force zoning and plans. See WQW at the OMB—Secondary Plan for an account of A18’s first stab at getting a Secondary Plan.
This Plan might have mattered if it had been in place before the three fresh Baywood proposals were presented—which is unclear, see above—and if it addressed the Queen Street height and design issues properly. It did not.
The Official Plan requires that for a Regeneration area—that’s us—there be an Area Study which, among other things, set out design guidelines. All we got by way of design was the eight-storey height allowance. We needed something better, especially if we were to be stuck with the eight storey street wall.
In 2007 there were, as there still are, development pressures north of Queen and west of Gladstone Avenue. We wanted a clear Secondary Plan there to prevent a repeat of the disaster south of Queen. See North of Queen for the story of our efforts to get a Secondary plan in the “Northwest Triangle”, as we called it. It’s depressing. Very. Two BADS before you even get to it!
Limits of built-form planning
Planning activists seem to focus on built form massing, stepbacks, shadow studies, building separation, and so on. These are very important threads of community building. Built-form issues are the meat and potatoes of planning struggles and are important in their way. Don’t get me wrong, many are worth mounting a substantial battle about. But watching a typical OMB battle you might think that’s all there is. Lack of transit, affordable employment space, affordable housing, buildings that last more than thirty years, forest cover, quality of parks, and ugly buildings some of the critical issues that are mere background noise in the typical planning fight.
Citizen activists should have a significant say on these issues as well, for the same reason noted above. But the process to involve citizens in these fringe issues is not developed. I obviously don’t mean these issues really are, or should be, fringe. I regret that this is the case. Substantial efforts by A18 on fringe issues of park development, arts facilities, local jobs, for example have paid off (though certainly not perfectly) in community development, in addition to whatever improvements we made to the built form.
I am disappointed with what we have achieved in the planning process in the last ten years. See Report Card). On the flip side I am somewhat impressed with what we achieved on the fringes of the land use planning process. And we are greatly challenged for the future by all those fringe projects and issues. What do I mean?
By the land use process I mean those zoning issues regarding massing, land use, etc. which we discuss with the Planning Division at endless public meetings and which end up at the OMB.
Built form involving street layout, massing, stepbacks, etc. is important. The public discussion, and OMB adjudication of these matters, is well developed and well attended. Yes, I have lots to say about how this could be better. But the point is that this process, focusing on these details, distracts us from so many other related issues that are not covered. And from policy issues and decisions at higher levels that are more important and are not as scrutinized as they should be.
Some of my disappointment comes from how the system has failed its own limited goals and powers. But a lot of the frustration comes from the fact that core decisions—population growth and mass transit—are made elsewhere and come from sources and powers that are beyond the control or influence of the local planning process. For example, the federal government decides to admit an extra 200,000 immigrants to Canada in the next five years. Half of them will come to Toronto. Decisions on height and massing and what our parks will be like are things largely determined by the overwhelming mandate directed by the Province to over-stuff our cities with people, while the Province neither provides nor requires additional transit to move those new people when the system is already at capacity.
Fringe issues are fringe, meaning there are some things to do with zoning that can help a little, like affordable housing, income inequality, jobs, environmental issues. The question is—how far can we go in the arena of land use planning? Local politicians may have some power to address some of these bigger issues beyond their land use zoning powers. So working the land use planning process also means working the local politicians and bureaucrats outside the narrow confines of land use planning under The Planning Act and before the OMB.
I’m a big government guy. I think governments should work expansively to solve social problems. With substantial public input. But I’ve also seen how regularly we hit the limits of bureaucratic capacity and efficiency and I think, the private sector is better at many things and the volunteer sector is under-used. Where to draw this boundary is a perpetual issue. Creating rules and schemes that the City can’t enforce is not good. There is no good answer.
The most burning example of failure, to me, is the failure to think hard and be tough about jobs. Jobs should be just as important as architecture.
See [JOBS, JOBS, JOBS]/planning/comments-and-rants/#jobs-jobs-jobs).
If your objective is affordable family housing you can only go so far by particular zoning, e.g. requiring a high proportion of two and three bedroom units in a condo, or Official Plan Policy 3.2.1, which bonuses “20% of additional housing units as affordable housing”. These policies are from the new [“affordable housing” policies.]/planning/comments-and-rants/#section-37-and-affordable-housing) Note these can be provided as on-site space OR as land/cash for affordable housing off-site. Then you will have to move on to non-profit and cooperative housing organizations to actually build the housing.
Another example. Many areas of the city are now overbuilt, especially in the downtown. I say overbuilt because there is not enough transit to cope with all the people. Still, proposals for more projects flood in. And they are approved on the basis that that people don’t need cars because they will use public transit. But it doesn’t exist now and adequate transit in the future—if there will be any—is decades away. Why are we discussing the shape of the new buildings when the question should be, “where is the transit?” Financing and building transit isn’t a zoning issue. The false assumption that there will be transit is a planning problem. Indeed it is one of the worst lies on which the current system is founded.
Message: Once you’ve figured out the massing and permitted uses under The Planning Act, your work has just begun. No. That’s wrong. Stop all building until the transit is in place to transport the people. Then, talk about design.
Development Permit System
The City has put in place a new system for planning called the Development Permit System that they hope will be better for citizen participation. That’s the friendly gloss by the Planning Division. See the City of Toronto’s “Reset” Initiative, or the actual proposed by-law that is currently under appeal at the OMB.)
The new system comes into effect slowly, area by area, according to directions by City Council. At this moment it isn’t in effect anywhere…except that it could be proclaimed in effect anywhere and everywhere.
In a nutshell it says there will be detailed discussions in each neighborhood to establish goals which will be described in a by-law (like zoning by-laws). After that developers will have to fit within the goals, period. No more endless amendments to by-laws and the Official Plan. Except, _except_…where there needs to be negotiations to smooth out the details. Aye, there’s the rub.
The big issue for the community is who has a seat at the table to smooth out the details. Under the DPS system these discussions will be between the developer and a council-appointed authority. The community will not be able to participate in the discussions or have a place at the OMB if these fights get serious.
By comparison, in the current system community groups can go to the OMB as a party and argue at the highest level on an equal footing with the developer and the City.
To me this is just starting all over with a scheme for secondary plans only calling them something different and then excluding the community from the discussion as the details are finalized. Why go through all this for a something that produces essentially the same result?
The new system has yet to come into effect so who really knows how it will work.
Community groups should be aggressive in these early DPS meetings on goals. My strongest advice is that community groups have to be aggressive in determining the amount of discretion allowed in the wording of the goals. If the terms are too broad we will have to appeal at the early stage. Assume that the maximum build-out allowed by the discretion will be what you are going to get.
The Planning and Legal Divisions will compromise away everything at the later stage.
Remember the developers can appeal but community groups cannot.
There is a thorny legal issue buried here. Community groups and citizens affected by these compromises are excluded from a say at the OMB by the new scheme. But that doesn’t mean that the compromises will be safe from attack in court.
Being aggressive before the crisis hits is hard sledding.
The new system does have the advantage of starting over and having discussions before the development crises actually hit.
The whole exercise seems to me like re-creating a Secondary Plan for a particular area. Why are we doing this? Is it to make it simpler for the community, in that they talk about goals and not details? Is it to give power to the bureaucrats to the exclusion of the community to settle cases?
I would observe that the hope that this scheme will simplify or eliminate the huge amount of squabbling and expensive litigation at the OMB is optimistic, bordering on naïve. The greater the discretion residing with the bureaucrats, and the greater the clamor of the public to be heard, the greater the likelihood we will simply move the expensive litigation from the OMB forum to the Court forum. The issue will be whether the compromise is within the declared goals or whether the bureaucrats have exceeded their jurisdiction in the compromise.
Role of the Politician
If the scheme is in place it effectively gives all the power to the Chief Planner when the inevitable fights arise about a project. The politicians, who will be on the receiving end from angry community groups who have no say anywhere else will be unhappy. Their only course of action will be to deny the designation of a DPS area or the approval of the goals before any project appears on the horizon.
Planners and Fake Planning
After a decade of participation and observation I’ve come to the strong conclusion that our Official Plan is a toothless piece of BS. And it is intended, by the powers—yes THEM—to be that way. It is only the a baseline for the planners to start the bargaining.
The Official Plan is so vague and porous as to mean a developer can make a viable proposal for a huge building just about anywhere (except in the middle of established residential areas). This means just about all downtown property is valued as if 30 storeys can be built there. The whole of the planning regime is largely useless to control over-building. This summarized (and over-simplifies—but not by a lot) my big picture cynicism about the present planning regime. See [Comments and Rants—What Plan]/planning/comments-and-rants/#what-plan).
Furthermore, Provincial level planning is conducted in such a way to undermine what remaining effect the Official Plan might have. [See Comments and Rants—Provincial Planning.]/planning/comments-and-rants/#provincial-planning)
While the fat stack of reports and regulations might look like a set of rules it is, in fact, chaos, a situation which sets up endless bargaining about maybe-rules. I might sound like a right-winger complaining there are too many rules. In fact I’m a left-winger complaining the rules should be clear and tougher. (Is that left-wing?) This chaos gives power to the bureaucrats, never a good idea.
Planners want to be seen as independent professionals with expertise. They don’t deserve it. They are mostly experts in junk language. There are a few technical matters where they have some expertise, for example the application of shadow studies illustrating the shadows at 3 pm on the vernal equinox given buildings of different heights, or at 6 pm, or 10 am. Valuable objective info. But somehow this morphs into a binding opinion—this is enough sun for you! Expertise is a back door way of shutting out the people’s voice. See [Planners and Good Planning]/planning/comments-and-rants/#good-planning-and-planners)
Official Plans carve vast swaths of the City of Toronto as open to intensification. They function mostly to enable the development industry to overbuild. They are the starting point for planners to make deals with developers. See [Official Plans]/planning/comments-and-rants/#the-official-plan). Planners present Official Plans to the public as in some way effective to control development—then work in the backroom making deals to evade and gut them.
The scheme might work if the defining of goals and the range of options were tight and truly reflected a community consensus. Frankly I think this is impossible.
An aggressive use of Secondary Plans is a better way to deal with the overload to the planning system.
Eliminating the OMB is impossible as long as there are provincial planning considerations that have to be incorporated. And when will that end? It never should.
The longer I participate in the planning process the more I see that many of the real problems lie outside the realm of zoning and in the back rooms of Queen’s Park.
Let’s start by saying it’s a good thing that the Province tries to plan at a regional level. There are many things that would not, and can not, be addressed in local plans. The Province’s efforts in this area are relatively new. The province’s goal of fighting sprawl and forcing intensification in certain designated urban areas seems right. And, frankly, politically brave because it forces municipalities to accept intensification. A GOOD.
The substantial increase in provincial planning power is relatively new. Its impact is dramatic. But how it works out in practice is obscure. And the end result turns out to be very BAD, especially for the downtown areas of Toronto.
It is bad—in a nutshell—because the province is forcing intensification without any apparent limits and not providing the resources (e.g. transit funding) to cope with it.
Section 37 deals were once denounced as the “crack cocaine” of development. See Clippings—2006. I defend Section 37 [here]/planning/comments-and-rants/#section-3715). In 2017 the ‘crack cocaine’ of development that is destroying our inner cities is the provincial policies regarding intensification.
The Future is Different
[Looking backward]/planning/comments-and-rants/#conclusions) will take you to certain conclusions. Looking forward poses more problems and different rules. Does the past teach us about the future?
From the point of view of community organizations what should we be doing now.
- Intensification is a fact of demographic trends and a side effect of international money movement and an environmental necessity. These are forces beyond local control.
- Provincial planning rules which mandate extreme intensification in the inner city overwhelm local planning rules about built form. Built-form fights are still necessary but no longer sufficient if we want to protect livable communities.
- In practice this means we need to aim higher, at the provincial plans and planners. They are invisible to community activists. They should be front and centre.
- The kind of intensified supergrowth in the core that the Province wants is perfect for condo developers. These are the projects that yield super-profits.
- The Planning Division is not allowed to argue about the province’s intensification targets.
- The [record of the Planning Division in WQW]/planning/comments-and-rants/#how-did-planners-fail-west-queen-west) is pretty poor in protecting the neighbourhood. Just in terms of the record of past competence there is no reason to trust them going forward.
- Issues of taxation, budgets, etc., deserve our highest degree of attention and political activism. In saving livable downtown communities these matter most. Funding transit is just the most prominent example.
In summary, let’s talk about money!
Generally speaking the provincial policies require the local plans to meet the Province’s intensification targets for employment and residential growth. But while vaguely worded, the order from on high in the provincial plans to intensify is used regularly in OMB arguments to overrule or interpret the equally vague language of the Official Plans in order to justify bigger buildings. See: Places To Grow Act (PDF) and the related Plan.
And the Planning Act, Section 3, now requires that the Official Plan must conform to the provincial policies on planning and the Province’s regional planning policies under the Places to Grow Act and policies set out under that legislation. The requirement that every OMB hearing on any Official Plan amendment must be in conformity with these policies means the provincial policies are being applied all the time, not just at the five year intervals when the municipality rewrites its plan and submits it to the Province. So…even if you think you know what the Official Plan says, you don’t.
The Policies are the highest level of goodness. Think blue sky and sunny weather. Go to the Province’s web site and click on the PDF button to pull up the actual document.
Then the Province has more detailed plans under the Places to Grow—Growth for the Greater Golden Horseshoe Act. The plans are in fact formal Regulations adopted by the Lieutenant Governor in Council (the Provincial Cabinet). Again there is procedure spelled out in this Act for amending, the possibility of hearings and public input. Bottom line, the Minister of Municipal Affairs decides. Which means the Provincial Planning Secretariat.
There are several plans under this Act. The key one for my purposes is the Greater Golden Horseshoe Plan. It was laid out in 2006 and it is now being revised.
See the Proposed Plan for the Greater Golden Horseshoe.
And see Planning Act, Section 3.
Read the two sets of Provincial Policies noted above. They are the basis of a command to rewrite just about anything in the Official Plan. The extent to which the Provincial Secretariat demands changes is just emerging as these new powers begin to be fully exercised.
The provincial plans have to be revised every ten years and local Official Plans have to be revised every five years and brought into conformity. But even before that happens the OMB is obliged to enforce the provincial plan. Typically that means interpreting an Official Plan so that it “conforms”.
The way all this works out in practice is devilish for communities and godly for developers.
First, the provincial policies and legislation appear to leave to the municipalities in their Official Plans the ways in which they comply with the provincial growth targets. But the effect of the provincial policies as applied at the OMB is to overrule the Official Plan and allow an almost unlimited amount of intensification.
Note that the Policy says:
the minimum intensification and density targets...are minimum targets, and the municipalities are encouraged to go beyond these minimum targets where appropriate, except where doing so would conflict with policy of this Plan, the PPS or any other Provincial plan.
So here is the battleground language. This is where the Province more or less takes over the planning function from the City. There are indeed other provincial policies expressed as goals for good neighbourhoods. But do they conflict? Municipalities are “encouraged” to exceed the the minimums. Provincial policies trump the Official Plan. Pull up almost any recent “planning rationale” for a new development and you will see how the developer’s planners rationalize just about any degree of height and density with this language.
It doesn’t seem impossible to argue that the contrary policies are there. I’m not aware of a serious shootout between top level experts at the OMB on the priority of policies and what the OMB can and will do. This is something to watch.
Second, it appears to the little guy on the receiving end of all this—and the community groups trying to preserve or protect real neighbourhoods—that it is the local planners who have failed. Well, often they have, but just as often they are having intensification imposed on them from on high.
Third, the policies setting out targeted growth of certain populations by a certain date—fair enough—are turned into a rationale for unlimited growth. The planning rationales presented by developers’ planners to the City and the OMB baldly state the province mandates intensification—so here it is.
The City planners seem to accept this approach. We never hear them say “Toronto doesn’t need to absorb any more large projects because we already have approvals enough to meet provincial policy targets and we don’t have the transit in place to provide for the population we’ve got, let alone more.
The proposed new plan for the Golden Horseshoe gives population targets for the various parts of the GTA and says says 60% of this additional population is to be added to already built up areas. See the Appendix to the revised policy. The new population target for the City of Toronto is 3.4M by 2041. In 2016 the population was 2.8M. So, in 25 years Toronto is supposed to grow by 600,000. See Growth Plan 2017—Schedule 3
This 60% rule is largely irrelevant for the City, as opposed to other parts of the GTA, because the whole city is a built-up area. For the rest of the GTA this “rule” is helpful, maybe, on sprawl.
Where are these 600,000 people supposed to live within the Municipality of Metropolitan Toronto? The Growth Plan says two things. First that the City must designate growth areas. And second that the growth areas will be the downtown, Yonge and Eglington, North York, Etobicoke and Scarborough City Centres. This corresponds to what the Toronto Official Plan (OP) provides. With the exception that the OP also says growth can occur along the designated Avenues. These are on an OP map:
The Avenues roughly correspond to the main streets of Toronto, like Queen Street, Danforth, Bloor Street, etc. The map shows in red, brown and yellow where 600,000 people are to be housed in the next 25 years. 600,000 is slightly less than the population of the whole Borough of the City of Toronto and East York.
Chief planner Jennifer Keesmat is quoted as saying the downtown of Toronto will gain about 225,000 residents in the next 25 years, almost doubling in population.
So the intensification that is happening now in downtown Toronto is just the beginning. It will be replicated, if the Province has its way, in the four other growth centres in the city and along the Avenues, where there is currently a height limit of about eight storeys (depending on the width of the street).
It appears it will be necessary to tear up and out all the buildings currently existing on the Avenues and build to ten stories. Bye-bye main street commerce. Hello chain stores. Transit on those overbuilt avenues? Don’t even think about it!
Our Queen Street West is an example of an Avenue that will be targeted. And the defensive response? It has started already. Make the street a Heritage District. Welcome to the future.
My back-of-the-envelope math says still more high rises than this will be required.
Here is the bafflegab. The Province says in its policies this intensification will be in “complete communities”. The provincial Plan is cleverly silent on how to pay for the necessary services for these “complete communities”. Or higher development charges for these highly urbanized areas? Parks are more expensive downtown. How can the Province order higher population density and “promise” complete cities while providing no money to pay for the transit? The Plan says there should be parks but not that there must. The only must, it seems, is—take more people.
A tight analysis of wording of the policies reveals that local authorities SHALL do certain things but SHOULD do others. They “shall protect and preserve employment areas and ensure that the necessary infrastructure is provided …” and provide infrastructure for industry (Policy 18.104.22.168) But when it comes to parks all that is required is that they “should be promoted” (Policy 1.5.1).
The OMB is obliged to apply the provincial policies and plans. The OMB case law likes to say the bottom line is “good planning”, which trumps everything. But [it doesn’t, any more, probably]/planning/comments-and-rants/#omb-reform). The obligation to take more people without the funds to pay for services trumps everything.
BILD, the development industry lobby group is all over this. In a two page paid spread in The Toronto Star, Oct. 1, 2016, they note the trend and complain of NIMBYism. Do they complain that there is not enough money for public transit? No. Because they can build, walk away and leave the transit problem for someone else.
The transit problem is acute all over Toronto after years of neglect. In the Province’s defence you could say Toronto politicians look foolish fighting over which subject subway or LRT line to build when the province is prepared to spend. But the problem is deeper. Even the money offered isn’t close to what is needed. Some of the areas designated for intensification within the City, like west central downtown, WQW, don’t have the political clout to get the transit dollars.
So the premise of “complete communities” is a fraud.
Viewed from this larger perspective Active 18’s successful efforts to secure Section 37 benefits to round out our crash intensification are remarkable. And at this level of abstraction, the assistance of the Planning Division on various projects (see [Section 37]/planning/comments-and-rants/#section-3715)) was a good effort, swimming upstream against a provincial system that wants to dump people and hide. You can judge West Queen West as a prototype of getting to a “complete community” in extreme intensification, but also an obvious failure regarding transit.
This can look very different in rural towns, where the issue is subdivision sprawl, and in the downtowns of the major cities, where the issue is “how high”. But the bottom line is the same. “You gotta take more people”— in certain, broadly defined intensified spots, e.g. downtown Toronto.
Where’s the money?
The Provincial Plan for the Golden Horseshoe spells out areas for intensification, eg. downtown Toronto, Yonge/Eglington, Hamilton, etc. No big surprises. Then it goes further and spells out requirements to manage this growth.
Without going into exhaustive detail here, consider the following.
Regarding transit—Section 2.2.1 says the population and employment forecasts…(more on these later) WILL be used…to focus growth in areas with existing or planned transit…” What does this mean? I think it means that the Province signs on to the strategy that the municipalities are required to intensify in certain areas without there being transit in place. It only has to be planned. Here is a major BAD.
Another example—Section 22.214.171.124(d)(v) Got it? Go on—pull it up and actually read the words. (Read it once—you’re a better person. Read it twice—you’re an Expert!) Does the provincial plan require adequate parks in the designated intensified areas? You wish. It actually says if you follow the policies in the plan that it will support “the achievement of complete communities”…by the provision of a supply of parks…” Well, what policies give the municipalities the money to build such things?
What we’ve got is an elaborate scheme of political “lies” that sound great but in fact what the provincial planning does is force certain municipalities to intensify without providing the resources to end up with “complete communities”. Who wins? Condo developers. BAD
Go to [Comments and Rants—Transit]/planning/comments-and-rants/#transit) where I really unload.
Provincial Policies do not apply on their face to specific buildings. It’s only when you get involved in a specific fight over a particular proposed project that you see the intensification policies in action.
So, for example, the Official Plan designates Avenues for 8-storey rebuilds. (I don’t like that policy but never mind for the moment.) The developer will argue through their experts that provincial policies and plans are the higher authority and the Official Plan should be interpreted to be consistent and therefore, the general policy of intensification trumps the OP and they should get permission for a twenty-storey building. For Toronto to meet its population targets this twenty-storey building is, by golly, absolutely required!
Population targets are the key element in this scheme of forced intensification.
The provincial plan requires Toronto to plan for a population of 3.4 million by 2041. See the population targets in revisions to the Places to Grow Act at the end of the document.
There are a number of factors to be mushed together here to address the question—to meet our target by 2041 do we need to any more condos at all, and if so, how many more? I believe the answer is that we don’t need any more and we can’t absorb any more people until the transit infrastructure is actually and truly upgraded for the new population.
- How many approved but unbuilt residential units are there? For how many people?
- Will the actual population growth exceed the Provincial target? If that is so, does good planning dictate we build more than the provincial targets indicate?
- The need for residential housing is not just a function of building new units but also a function of what is being demolished.
Influencing Provincial Policies
My 2017 opinion is that provincial policies are just about the most important “rules” shaping our cities.
The Ministry of Municipal Affairs has recently completed four studies of growth and green belts etc. in southern Ontario. They are preliminary to changes in the Places To Grow Act. They are available online. The Ministry invites comments. The relevant legislation required periodic revisions, studies and opportunity from the public for comment. At least at the formal level the Province is open to input from the public.
The development industry is very public in pitching its point of view. Municipal governments in the GTA are alive to the importance of these policies and speak up. Where are the community groups?
It might be said that at the provincial level it is the job of the municipalities to lobby the provincial government on regional planning issues, not local communities. I would like to believe that would work. But I don’t. Because after all is said and done the city wants the new buildings and the revenue they create and is prepared to ignore the serious problems that are being inflicted on their local people.
And I’d like to believe far-sighted community activists could get it together and blow the whistle on the long-run damage being done to them. But the hard truth is that volunteer organizations can’t deal with issues that seem so remote.
It’s the professional planners who seem to be at fault here. The provincial policies may mandate growth to meet certain targets. But they don’t require that anybody exceeds those targets. They don’t require growth to meet the targets decades before the target date. They may permit growth based on necessary future transit development but they don’t require it when when there is no commitment to build the transit. Why don’t professional planners blow the whistle on this disaster? Is it because their employer, the City Council, wants the tax revenue now?
Good Planning and Planners
This is a grab bag of Rants about planning in general.
- What is planning “expertise”?
- What is “good planning”?
- Is planning law?
- How planners failed WQW.
- OR…forget all the general blah and just ask this question—how can anyone call themselves a planner and approve downtown projects knowing the necessary transit is not going to be built? Study the wiggles and squirms, evasions and doublespeak as they collect their fees and ignore that key and fundamental question.
the great lie of planning…intensification without transit
What is Planning Expertise?
Planners generally (huge bite here, sorry) think they are professionals with valid opinions that are better/independent/above-the-fray and above politics. Mostly I think this is BS. “Mostly” is the key word. Scrub their brains for the technical bits that can help but don’t let them bamboozle you into thinking their values are better than yours.
There are a few things in the planning world where there is some expertise based on technical knowledge. A good example is shadow drawings. Everyone is concerned regarding a new building, “what happens to my sun?” Computers can generate maps of shadows cast at different times by different buildings. There is definite expertise in knowing how this works. But there is none in knowing whether that shadow effect is good or bad. Planners have conventions and benchmarks for measuring the shadows, for example at the equinoxes. But somehow that seems to shut down the discussion. If, for example, there is sunshine on the north side of the street at 4 p.m. that’s a fact. But is it good enough? That’s a value question that experts can’t answer.
I’ve spent many years in court. Wrestling with expert witnesses is standard fare. By my legal standards, planning experts are barely in the semi-finals.
In court you can’t be an expert in what the judge or jury is going to decide, for example the meaning of the Criminal Code or “did he shoot the gun?”. But planning experts opine on what the provincial policies mean,which is what the OMB actually decides. This wouldn’t bother me so much so long as the expert opinion were given no more weight than anybody else’s opinion on the subject. The point is this. In the planning world the meaning of the Official Plan is fair game for anyone who can read and speak in sentences. Who is qualified to be an expert on the holes in a sieve?
Or the experts will prove, technically, with their computer drawings of perspective (definitely generated by an expert) that if you are standing right across the street looking at the proposed building you’ll only actually see the first five storeys. It will be like the next six aren’t there. And that settles it, says the expert. The building counts for five storeys. Thanks for the technical info but says who? What if I look up? What if I walk down the street a hundred yards and look from that angle? “Hey look! It’s fifteen storeys, not five!”
My point is that there are indeed topics where some planners have useful info based on expertise. But most of what should be front and centre in the decision-making is about values, where there is no expertise.
Are there going to be too many people in the neighbourhood? A planner might remind us that the provincial policies and Places to Grow Act require—or urge—us to take more people. But that isn’t expertise. That’s doing what you’re told.
At the OMB
Over and over at the OMB you hear planning experts summarize their evidence by saying their opinion is based on good planning. I’ve heard the OMB ask for this as if it is the definitive test.
In their world “good planning” seems to be a matter of opinion which only an expert can give. Somebody who lives in the community can’t be an “expert” and therefore can’t give an opinion what is “good planning” for their neighbourhood. Basically this dodge has been used as a way of cutting the community out of the decision making by making the opinions of real people irrelevant.
I accept completely that the opinion of Joe Smith on population growth estimates for the the province are probably worthless and it makes sense to exclude them. Similarly, with “I don’t like that building.” But an opinion by a resident that the traffic is unsafe is surely as valuable—rather, let me say, worthy of cross-examination to test that conclusion—as the traffic expert who says there are fourteen cars an hour turning left at that corner.
I can’t figure out what “good planning” means. Can it mean something different from what the Official Plan and the provincial policies mean? Can’t be. To decide on such a basis would be a fundamental error. The OMB is a creature of statute.
Maybe it means that the OMB can take into regard matters and knowledge known to it because it is an expert tribunal—but not in evidence. This also would be an error of law.
Some old case law suggests that “good planning” is the principle that individual property rights should not be infringed. Does that trump what the municipal by-laws, the Official Plan and provincial policies and statutes and regulations say? That ought not to be case. But it might be the covert rule that rules, sometimes.
What is a planning law expert? Clearly there are a crew of folks with more experience arguing about this stuff than the average Joe and more time to study the documents and regulations than the average Joe or Joan. But in my world of the courtroom it would be nip and tuck whether they would be recognized as “experts”. In the legal world you can’t be an expert on what the judge has to decide—the meaning of the law. And often, that is what planning experts are doing, explaining, or trying to explain, what the various Official Plan provisions mean.
If you look up what the Ontario Professional Planners Institute says a planner is, you won’t find an explanation of “good planning”. (Look under Policy. You will see a bold headline that says they are “in the public interest”. But look at their professional obligations and they’re all about being loyal to the the client. None of this gets to “good planning”.
City Hall planners
There are “planners” at City Hall. As you read through this blog—brave soul!—you’ll see all the different stages and kinds of things they do, from running the public meetings at the beginning of the process to attending the OMB in mediations and to give evidence. Importantly, they make deals with developers and recommend settlements to the Councillors. All the way along they pose as experts.
They are at their best when they report to Council on completed development applications with opinions whether the proposal conforms with the Official Plan and provincial policies. This wording sounds great but there is a big hole.
When applications from developers are received they are required to submit various reports from professional planners on various topics. The City Hall planners seem to adopt what these planners tell them, which is invariably that the project submitted by the people paying them to write these reports is fabulous. The planners circulate the reports to various City Hall Divisions, e.g., Parks, Roads, etc. and collate their comments.
The part of the process which is good—i.e. reasonable folks could differ—is the receipt and comment by the Planning Division itself on the applicable zoning and whether the project complies or whether a requested variance is in accord with the Official Plan.
The part that is often terrible is the uncritical acceptance of reports such as traffic and wind impacts. The premise of all these reports coming from the outside seems to be that the City can easily incorporate our additional overload. And that seems to be it.
Does “good planning” have anything to do with the public good?
But as noted in [City Hall Maze]/planning/comments-and-rants/#the-city-hall-maze), there is a current trend not to complete the planning report in a timely fashion, so the case will proceed to the OMB and mediation under the control of the Legal Division and Planning’s expertise, such as it is, in the various plans and policies disappears.
It disappears because the Legal Division is more interested in settling. It is maybe more budget stressed than the Planning Division.
What is Good Planning?
The expression “good planning” is everywhere. But what does it mean?
Is it what we expect of planners? Or do we expect them to enforce the Official Plan and provincial policies, even if the planner thinks they are not good planning?
Take two steps away from the real world of zoning and you can get into thick weeds of politics and values that are, rightly or wrongly, not on the table, for example, the redistribution of income.
Planners have a professional association with standards and a disciple procedure. Does it sanction planners if they don’t deliver “good planning”? Hint—they don’t have a definition of “good planning” as a base line.
You often hear the expression from experts at the OMB or from the Board itself in its reasons, that a proposal is, or is not, “good planning”, as if that was a necessary finding before a proposal could be approved. But I can’t really tell what is being referred to.
Here are some options:
- The proposal has been well studied and is supported by real data and real expert evidence. (The is code. The real meaning is that only experts know what is good for the neighbourhood.)
- The proposal is consistent with the Official Plan and provincial policies.
- OMB submissions and conclusions are often framed…“for all these reasons the proposal is, or is not, good planning.” Or it might be, “it is also “good planning”, as if that is some additional or different criterion.
- Some older cases seem to suggest that it means that “good planning” pays due respect to the rights of property owners to do what they will with their property except as specifically and directly infringed by legislation.
- Court interpretations of the jurisdiction of the OMB indeed suggest that the job of the OMB is to consider the changes proposed on the basis of whether they are “good planning”—period. Whatever that means to the Board. But I wonder how the broad and open test can co-exist with the recent requirement that decisions have to be “consistent with” provincial policies.
- Couple an original and open jurisdiction for the OMB with a requirement of expert evidence and you’ve got a formula to exclude community opinion.
None of these ideas helps very much. There is something to argue every time when you get to the values that underlie interpretation. Confused? Go back and think about what might count as planning expertise anyhow.
I have no good answer here. Best advice—treat “good planning” as if it means what the Official Plan and provincial policies mean. There is still lots of room for interpretation. And second, always have some qualified expert out front saying that the values and judgment he or she offers—which just happen to reflect the values of their client, the community, really aren’t anything so low class at all. The expert has that opinion based on six truck loads of data and three university degrees.
Is Planning “law”?
Q: Is planning “law”?
A: Sort of. [I hear you snickering! Stop! This is in fact an extremely precise answer!]
You don’t need to be a lawyer to represent a party at the OMB. But a lawyer with a track record has a definite advantage. But if you talk good and know your stuff, they’ll listen. But, probably not if what you’re saying seems like a legal argument. And if you want to threaten to appeal to Court for some reason, best to be a lawyer. An OMB hearing looks a lot like a real court trial. The participants all sit where they would if Judge Judy were presiding. You’re expected to behave like a lawyer. The arguments sound like court arguments.
Clumps of words are interpreted as if they were laws. The OMB will tell you every case is different and there is no precedent. But development lawyers argue all the time: treat us “like them” because we’re no different. Or don’t treat us like them, because we’re different.
If you take a planning case to court complaining the OMB misapplied the Official Plan the court will say, “but the Official Plan is not a law, it’s policy, and we can’t interpret and overrule on that. Who’s to argue? The Official Plan is very vague. But then at the OMB you’ll hear over and over that “the meaning of this is perfectly clear.”
Remember this basic rule:
The Official Plan is to law as an omelet is to a tractor.
When I’m talking to a planner I say, “I’m a lawyer!” When I’m talking to everybody else in the planning whorl I say, “Don’t ask me. I am just a lawyer with forty years experience interpreting statutes!”
Bottom line—you can go pretty far down the planning track if you study hard and talk good. Go for it!
How did Planners Fail West Queen West?
It’s a grim task but somebody has to add it up. Or try. Somebody other than a planner. If the general object is “good planning”, did we get any? If we didn’t, were our expectations realistic?
Was there “good planning” in WQW? With a few exceptions the answer is “no”. (And since that’s the answer, why would we [give up the occasional protection of the OMB?]/planning/comments-and-rants/#omb-reform))
The Planning Division has a barge-load of excuses for the problem in WQW, a problem that seems to recur elsewhere in the city. They toss out substitutes—studies, guidelines, etc. which talk about the problems but have no teeth. The biggest excuse is, “we’re understaffed.” I respect that, sort of. [Hey, dude, get more staff—we’re in a building boom!] But then they should be saying “Sorry. This needs a study and a Secondary Plan and we can’t do it. The planning in your neighbourhood is definitely not “good planning”. Tough luck.
Here’s my short-form list of notable successes and failures in WQW. There’s nothing here that hasn’t been discussed in the history sections of the blog.
Mistakes That Matter
The planners failed to have a Secondary Plan in place for the Triangle before the condo wave hit in 2005.
When the first WQW proposal came in from The Bohemian, the planners bargained badly. They agreed to close and sell off the Northcote right-of-way. They let them build over the Northcote right-of-way at Queen Street. They let them situate their tower so that it blocked the sky view down Northcote passage. BAD to close the street, but terrible to bargain away the view of the sky.
Because there was no plan in place for the Triangle, which the Garrison Common Secondary Plan required, the Triangle got built out with no cross streets. Planning 101—BAD.
In fact A18 did the area planning with the 2005 charrette. Planners watched. When we got to the OMB hearing they were playing catch up. They tried to create an area plan by having a combined hearing for three adjoining developers. Fake planning.
There was no Secondary Plan and therefore no employment policy in place, as the “regeneration” designation required. When the employment issue came up at the OMB the Planning Division was winging it and lost the opportunity to get substantial “non-residential” uses in the new buildings as the “regeneration” designation contemplated. You can read the OMB decisions here and here and here.
(You could say the OMB was wrong to force the case forward before a Secondary Plan could be prepared. But that is no excuse for the Planning Division’s delays.)
The City was dragged kicking and screaming to the provision of a new park for the neighbourhood.
The planner assigned to this file and the lawyer for the City at the OMB laboured valiantly and well during the OMB hearing. But it was too late. We ended up with an over-dense superblock. The particular planner on this file did not fail. She was a star.
The Planning and Legal Divisions settled the Triangle appeal cases too early. They lost a great bargaining position with two of three developments.
And they made a very bad settlement bargain for Section 37 benefits with Verdiroc.
A Secondary Plan for the Triangle area was still required and prepared and passed by City Council in 2007. And Planning seems to have lost the Secondary Plan, so that in 2017 in dealing with 1181 Queen they seemed to think it didn’t exist. And so they are faced with yet another tower in the Triangle that would otherwise have been of manageable size if the Plan they prepared ten years earlier had not disappeared.
The planners were pretty good on park design issues and related “arts precinct” discussions. This compliment doesn’t belong in this list of BADS. But what the hell.
They were EXCELLENT when it came to bargaining the Section 37 benefits with Urbancorp that eventually lead to the TMAC facility. True, Active 18 lead them into it, with the Councillor’s help, but they performed extremely well in that complex negotiation. They are not responsible for TMAC’s internal problems. [OMG! Another GOOD for the planners. My argument is falling apart!]
& 14. They fought again and refused to do a secondary plan north of Queen. See the NW Triangle. We drafted it for them! They insisted is wasn’t necessary, even after seeing the disaster south of Queen. Result: another disaster.
Then they denied legal and planing advice we gave them that 440 Dufferin was not sufficiently protected when designated as an “employment area”. And eventually they had to accept an oversized project at 440 Dufferin because of their failure to act.
If they wouldn’t do a Secondary Plan, we said at least do an Area Study of the NW Triangle area to lay out roads and parks etc. They still haven’t done it in 2017. Another disastrous overbuild is coming.
A18 and the Councillor forced them to bargain for some employment space in the 440 Dufferin project to compensate for what was being lost. The result is a minor accommodation that could have been way better if they had planned ahead. You might think this is a carbuncle on No. 15. Wrong. Defining compensating employment was a big argument in the OMB case and the lost Secondary Plan. It rates a BAD in 440 Dufferin. The modestly good result is half what it should have been.
The planners denied that a “bar concentration” zoning was even possible until they got beat up in Parkdale and were forced to draft one. It works fine.
The bottom line is that the Planning Division failed over and over to do the basic planning. This is not “good planning”. They may have “good planning” ideas in their heads, and the best of intentions. But when it comes down to what’s on paper, they’ve got nada! The idea that the City of Toronto can look after itself without the supervision of the OMB just seems absurd.
I say the Planning Division. Perhaps I should say the City doesn’t exercise its powers until it too late. Perhaps I should say the communities are not far-sighted enough. There is indeed blame to be spread around. But what sticks in my craw are the numerous times I’ve seen and heard staff planners telling a public meeting that plans are not necessary or some study will do to deal with a pending problem when it is perfectly obvious that this is an excuse to get out of more work and probably an excuse for their not having taken the initiative earlier.
Architecture and Design
The Toronto’s condo boom has produced, and still produces, great masses of awful, boring, square glass and aluminum boxes. The streetscapes of the rebuilt avenues are uninteresting. Active 18 spent a great deal of energy in 2007-2010 trying to bully or inspire better architecture. We failed. The annual PUG Awards for good (and bad) architecture, since discontinued, ran brilliantly for a number of years, naming the best and the worst new buildings based on public voting. The PUG awards were discontinued in 2014 by the organizers who said that after ten years they had had no visible effect on Toronto architecture.
Two BADS for Toronto architecture.
Why is this? Almost every architect I have cursed for an ugly building has done a good one. The talent is here. Why the cumulative awful result?
There are many facets to this problem and alas, we can’t do anything about it. Mostly it’s not the fault of the Planning Division. Here are some thoughts.
- If you say a builder can only build to three-times coverage and no more than, for example, three storeys that fill the whole lot, you have determined the shape of the building. The builder, who is a a capitalist, will want to—and probably will—build a box that is three storeys high to get the maximum allowable volume. You can restrict the building size and dimensions in other ways, by stepbacks, for example. But the builder will build as close to the outer bounds of his permitted envelop to get the most internal square footage. Articulated buildings are not economic. The odds are strong all buildings will be as boxy as possible.
- When buildings are built by developers who have no continuing interest in the building, because they immediately sell to condo owners and a condo corporation, there is no pride of ownership that might inspire someone to build beautifully because that’s where they live or because their name is on the building.
- Toronto streets are narrow. Sunlight issues on narrow streets are hard. If you want to insist on some sunlight on our sidewalks the wedding cake style of buildings with stepbacks at the high levels is a simple way to do it. These standard mid-rise buildings are boring.
- We continue with overhead wiring on most of streets. We will never have attractive streets.
- I like “wow” architecture. The floating table top building at OCAD University is my favourite…so weird! But the bottom line is different. Most buildings look good if they fit into their neighbourhood. Context matters a lot. Architects value this. Developers usually don’t. “I should get to build on my land what I want. None of the neighbours’ business.”
- Planners and other City bureaucrats have very little power to compel improvement. Generally speaking, who wants bureaucrats in charge of design anyway? But we start at such a low level that even a bureaucrat could do better. And I have seen them repeatedly make great suggestions to developers and their architects, usually to no avail.
Control of Design and Architecture?
Leaving aside whether City control over architectural design is a good idea—what are the City’s real powers?
Zoning—in the Planning Act
Until quite recently formal power over design matters was limited to what might be crudely summarized as massing or building envelope, height, stepbacks etc. The City can pass by-laws on this consistent with the policies in the Official Plan and in provincial policies under Section 34 of the Planning Act. These are the kinds of things that get discussed when we go to meetings about zoning amendments.
The City adopted guidelines a few years ago for mid-rise and tall buildings, setting out more details on various design issues. The most controversial item was minimum separation for neighbouring tall buildings. Another one, in the mid-rise guidelines, standardized the height of buildings in relation to the width of the street.
Guidelines are only that, guidelines with no force of law, and are regularly ignored by the OMB.
These guidelines have since been incorporated into the Official Plan, although there are numerous appeals against the tall building provisions for downtown buildings.
The guidelines are definitely sensible as a way of standardizing some complex design issues. But they also standardize the massing of buildings. The end result will be that all the buildings along an avenue will be shaped the same. So if your concern is interesting architecture—these are the Death Star.
Site Plan control
Section 41, Planning Act
In 2010 these powers where expanded by an amendment to the Planning Act, Section 41(4)(2)(d):
matters relating to exterior design, including without limitation the character, scale, appearance and design features of buildings, and their sustainable design, but only to the extent that it is a matter of exterior design, if an official plan and a by-law passed under subsection (2) that both contain provisions relating to such matters are in effect in the municipality;
City of Toronto Act, Section 114 gives the same power to the City.
This staff report tells of the proposed changes—they were appealed—and the appeal was settled.
This is the report of the settlement but it doesn’t tell what changes were made to the rules
But, most important from the point of view of community groups, we cannot be parties to site plan arguments under the existing rules. Sometimes these details don’t matter. But sometimes they do. And it has become a strategy for City Legal and developers at the OMB to defer important questions, pretending they are minor, to site plan review, from which community groups, even those who may have been be parties at the OMB, are excluded.
The Heritage Act provides another basis for controlling design. The procedures are complex but they come closest to actual bureaucratic influence on the details of what a building looks like. See [Heritage]/planning/comments-and-rants/#heritage12)
Other Design Powers
Regeneration Areas and Avenue designations in the Official Plan have some provisions mandating attention to design. But these provisions don’t confer any more power to control massing and design (that is, built form) than already exists elsewhere. See Chapter 2 of the Official Plan–Avenues Look at the St Lawrence Neighbourhood Design Guidelines, for example.
Design Review Panels
A system of design review panels exists. This programme became permanent in 2009 but only applies to specific buildings one at a time. And it is advisory only. (This would be a good time to revisit A18’s adventure with the semi-secret peer review of a Baywood building.)
If you went to one of these Design Review meetings and watched, you would see a panel of architects criticizing—mostly polite but in public—the design of various building proposals submitted by other architects. The Design Review Panel meetings do not allow public participation, only observation. The basic criteria are how the proposal fits with the existing planning rules. But there is scope for comments about architecture above and beyond the basics. The result might be some recommendations for change or an outright rejection. The recommendations go back to planning staff for their edification, however. All staff can do is refer to these ideas in opining whether the proposal fits within the Official Plan, or if there is an Official Plan amendment proposed, they can consider whether the there are obvious design issues arising from that proposal.
This process is modestly helpful. But it is still mostly bound within the four corners of the existing rules. No great architecture is likely to emerge at the end of this tunnel.
For interest check out: Waterfront Design Review Panel.
The Ward 20 Model
Councillor Adam Vaughan required developers to present to public meetings before submitting to Planning. He had no authority to do this but most developers cooperated. His successors, Ceta Ramkhalawansingh and Joe Cressey continued this. The community attends and critiques the numerous new buildings proposed for this downtown ward, often raising architecture and design issues in a free-wheeling discussion. And the Councillor sometimes tells the developers “come back to the next meeting with something better”. In the bargaining that these extended discussions entail, as developers maneuver to get community acceptance—that will probably get them the Councillor’s backing and speed them through the planning process—there is some room for the public, by diligent attention to detail, to persuade (if that’s the word) them to make some design improvements. They have been modestly successful in this forum where A18 failed ten years ago in design meetings after the proposals had been submitted to City Hall.
The strength of this model depends on having a councillor sitting at the front of the room who is knowledgeable about planning matters and who knows how to have his or her way with the Planning Division.
I find it hard to support or advocate more bureaucratic control over architecture and design. Everything points to conformity. The question is open whether more public participation would make any difference. What we’ve had so far is fringe critiques in circumstances where they have no real legal effect.
It is urban legend that architects often like the public criticism of cheap design which they are forced to produce by developers who think only of money. The theory is that the architects would like to do better. Personally, I have seen little evidence this is true.
I think making a lot of noise about bad design is helpful but we shouldn’t allow the demand for good design to become an extra or a luxury for which developers get more density.
Putting some lay and community representatives on the design review panels might help.
In passing I’ll give a GOOD to the much improved attitude of the Parks Division on public input in design issues.
None of the schemes for compelling better design work very well. We’re not a city that demands great design in our residential buildings. Our record on major public commissions is spotty. Sad. A topic for another day.
The Provincial policies of the past twenty years of fighting sprawl and forcing urban intensification are mostly right. The environment demands it. So we struggle with a provincial mandate that our cities should get bigger and more dense. Let’s give this a GOOD. But doing this without a transit policy to make those cities livable is a huge BAD. A triple BAD.
A huge proportion of the big-building planning fights in Toronto over big buildings, where discussions blather on about the formalities of sunlight and stepbacks and so forth, miss the big point. In my neighbourhood the practical problem is this. The Queen (and King) streetcars are so overcrowded at rush hours that you can’t get on. Or if you do, it’s a hopeless crush. Trying to drive the same route is disastrous. We could find room for more buildings in the neighbourhood and design them nicely but what’s the point if the transit is overwhelmed already.
Density used to mean residents per square kilometre. That measure was taken apart, rightly, because it only made sense when talking about the biggest averages, not when applied to a particular building project in a particular district.
The real issue regarding density is traffic and pedestrian volume, delivery trucks, bicycle volume and adequate public transit. Public meetings discussing sunlight are missing the big issue. The traffic experts and planners who tell us this building is OK are often basing that on orders from on high that “people won’t drive anymore” and someday there might be a subway and it’s OK to approve a plan that overloads the downtown streets…because…we’re planning a world that will never exist. A huge Bad.
They should be saying—
All major downtown development should be frozen until public transit catches up.
Remember all that stuff I’ve written about how high-quality Secondary Plans might, might, save us. All those Secondary Plans should start by saying “No more building until subway construction catches up.”
I’m not from the outer boroughs. Been there many times in my car. The traffic problems are worse. The transit problems are by reputation as bad, but different. It appeared to me the pedestrian problems are not as bad.
Big diff? Not much. We’re all in the same sinking boat.
Obviously these are problems that go way beyond land use and built form issues of the typical planning fight and involve policies at the higher levels of government over money! I would like to draw a thick black line and ignore these problems when doing a local planning fight. So we can wrestle with the issues we have some chance of influencing. But we need to bite the bullet and recognize it can’t be done. We need citizen organizations functioning at the city-wide and provincial levels to advocate for the little guy. Sounds suspiciously like a political party. I’m not happy with this conclusion.
Recent amendments to The Heritage Act strengthened this scheme of property control. Generally, everybody thinks saving old buildings is a good thing—until they decide to save yours and you get the bill!
The heritage system has its own set of rules and procedures that run parallel to the planning system. My big picture comparison: Heritage intends to save buildings. Planning is a scheme for their orderly destruction as we rebuild the city.
My big picture observation: as planning fails to protect neigbourhoods, people turn to heritage district designation of a whole area or street to save the ‘hood. The planning system is just too slow and rigid. The irony is that when the heritage district designation is worked through, the Official Plan is supposed to be redone to conform.
The effort in 2017 to have Queen West from Bathurst to Roncesvalles designated as a heritage district is a good example of turning to heritage for salvation. The effort gets a GOOD. The overlap and confusion gets a BAD for the planners.
Warning—heritage buildings are different from heritage districts. Most important distinction is that the whole of a heritage building is protected but only the facades of a heritage district.
How heritage works
This is not the place to learn all about it. West Queen West had very few heritage issues. The Province published excellent guidelines for both heritage buildings and districts.
Check out the final product of a “heritage district” designation, a “heritage district plan”: Queen West Heritage District.
The stages to pay attention to are: - getting the district designated; - appeals and exemptions from that designation; - detailing the “heritage attributes” of the buildings to be preserved; - what power heritage rules have over buildings adjoining those designated; - trying to get a change in a building after a designation and an attribute have been fixed.
A heritage district under the Heritage Act can include architecturally distinguished buildings and buildings in a district where there is historic or “cultural value or interest”. Just enough of an elastic meaning to invite confusion. It can mean what everyone would think is the normal meaning—an old and beautiful building.
In the early stages of the WQW struggle we sought to get the old warehouse building at 48 Abell declared a heritage building. Our argument was not based so much on its architecture. Most people would say the exterior was dreary and the interior space neat—wood beams and floors etc. There are many buildings like it. We tried to argue that as a culture hub for a number of years it fell within the the envelope of cultural values or interest. We failed at City Council.
A district can be of heritage significance and worthy of protection. There are districts of older homes or factories of a certain vintage or uniform style that are easy to recognize. South Rosedale Heritage Conservation District.
The effort to get Queen Street in its entirety declared a “heritage district” poses the problem nicely. There are indeed many, many buildings of the same vintage and style along the street, often concentrated in particular blocks. There are a number of individual buildings of indisputably heritage value. And there are sections of the street where a heritage designation is odd. A gas station? But the argument is, you should read the street as a whole.
This is a struggle that is on-going in 2017. The City commissioned outside experts to appraise the whole street. They recommended against designating the whole street, although they did propose to designate large portions of it.
The community fought back, led by the Ossington Residents and eventually the whole street was designated. Now the struggle will evolve into a building-by-building struggle on how much of each building should be preserved and where, if at all, there should be exceptions and higher buildings allowed.
Opinions differ but mine is that maybe 25% of the buildings are of real historical interest for their architectural quality. Another 40% are of a consistent style, with historic features, low rise and make a terrific streetscape of historical interest. The last third are ugly and decrepit and should be replaced. Alas.
I would keep many, many old buildings just because they will provide relatively cheap space for the businesses that occupy them.
Why does this difference of opinion matter? The over-simplified reason is that a designation of the whole street put a freeze and probably a kill on rebuilding the street as mid-rise, mixed residential and commercial the way the Avenues Policy in the Official Plan contemplates and allows. It is the best bet to keep out chain stores and keep the local feel of Queen Street given how weak the planning tools are.
A second argument about heritage is the cultural one. Queen Street has become a great destination shopping street. Some say world class. Is this of sufficient importance to rate as cultural heritage? Most would say no. But for some the destination shopping thing is driving the bus. It is a perfectly legitimate concern and objective. Tourism matters. Retail jobs matter. But these concerns are more properly part of the planning regime protecting uses by zoning. But then who cares about proper. Use what works.
The existing zoning and Official Plan designations make Queen Street an Avenue which means an 8-story rebuild as mid-rise, mixed use buildings. Rebuilding as mid-rise kills the funky small stores that bring shoppers from all over the world to the Queen West strip.
A Heritage District designation, once in place, trumps the Avenues Policy. Indeed the Act says the Official Plan should be made consistent with the Heritage district.
While a heritage district designation doesn’t prohibit replacing all buildings, it brings their design under the purview of the Heritage Division, which generally will prevent highrises. (Because the façades, which are thing being saved, are two of five storeys and a highrise would destroy that. Sounds good for the neighbourhoods that want to keep things low rise and small scale and bad for the owners who naturally want to expand and then have to deal with the Heritage Division on details.
Note that a “heritage district” designation only affects façades. There are probably more controls desirable if control of shopping is the objective, like the size of the stores. And these need to be done by a Secondary Plan.
Heritage District start-up
Study of building/area
The first step is a detailed study of the buildings that might be designated, setting out their heritage value.
Section 40: -Council “may undertake” a study of the area to determine whether or not to designate it.
Active 18 did its own heritage study to try to get the ball rolling, because City Hall would not.
get link You may have to do the same thing. But it’s no guarantee the heritage bureaucracy will carry it forward. Get ready to hear, “wait in line.”
have we got hold of this yet
Protection during study period
Section 30 -as soon as the notice of intention to designate is completed, any permit that permitted alteration/demolition is void, and the consent of Council must be sought for any alteration or demolition
Section. 40.1 -if Council decides to undertake a study, it can designate the area a “heritage conservation study area” for up to one year—this by-law can prohibit the erection, demolition, alteration, etc. of buildings within the by-law area. NOTE: this by-law can be appealed to the OMB. NOTE: this interim control by-law cannot be applied in this area again for 3 years.
Designation by by-law
Section 29 -a municipality can designate a property to be of cultural heritage value through a by-law. NOTE: this by-law can be appealed to the OMB.
Section 41 -if the Official Plan contains provisions regarding HCDs, Council can designate any part of the municipality a HCD through a by-law. NOTE: provisions regarding conflict with properties that are individually designated. NOTE: this by-law can be appealed to the OMB.
Protection of buildings from demolition
Sections 33, 34, 34.1 -in order to erect, alter or demolish a designated building, the owner has to get written consent of the Council. Refusal to provide consent or provision of consent with conditions can be appealed to the OMB and the OMB can order the Council to issue the consent (with or without conditions).
Section 42 -in order to erect, alter or demolish a building in a Heritage Conservation District, the owner has to obtain a permit from the municipality. Refusal to provide a permit or provision of a permit with conditions can be appealed to the OMB and the OMB can order the Council to issue the permit (with or without conditions).
Sections. 41.1, 41.2 -Council “shall” adopt a HCD plan regarding the goals for the HCD and a statement regarding why it was designated, etc. No by-laws can be passed that are contrary to the plan objectives.
Jane, Jane, Jane
It’s necessary to be able to speak in a familiar way about the great Jane Jacobs. She is the Goddess. If you never met her, pretend, wistfully: at the market…a rainy Saturday…buying zucchinis. Whatever. It will add immeasurably to your street cred.
Do read her famous book, The Death and Life of American Cities. A classic.
See the Jane Jacobs Report Card I drafted to myself after Round One of the West Queen West struggle. It was my attempt to evaluate our work in light of what I thought Jane would say. But if you dig a bit, what the exercise taught me was that JJ didn’t have a lot to offer in situations such as ours.
Jane wrote about why not to tear down thriving urban communities and replace them with something planned. She fought Robert Moses’ efforts to bulldoze midtown Manhattan in favour of thruways, and to replace old buildings filled with long-standing communities and businesses with well-designed high-rises. Because, duh, community is about people, not buildings.
Her famous fights with Robert Moses, the building czar of mid-century New York, have a very different political context. In the ‘30s, ‘40s, and ‘50s the federal government in the US was throwing money at the municipalities for urban renewal and highways. Once an area of slums was declared blighted it could be acquired and rebuilt. Toronto never had such vast access to money. And so it has very few neighbourhoods that were demolished and rebuilt. (Regent Park being one example of this happening.) So Toronto never went through the extreme dislocation of urban renewal to which Jane famously, and correctly, took vigorous exception.
Jane wasn’t writing about abandoned industrial land. She wasn’t writing about the evils of free trade which decimated our local industries by exporting the jobs and emptied the industrial core of Toronto—and much of the industrial north eastern United States.
When the problem is what to build in acres of empty land, what’s the message?
The modern day Jacobites will say, build small scale, small stores, no chains etc. Respectfully, I say they’ve missed the message.
The modern Jacobite/urbanistas sound to me like they believe boutique shopping is the essence of everything. It makes one highly suspicious they’ve never heard of work.
In Jane’s era and context, in densely built Manhattan, saving the community meant saving the old buildings and their cheap space where folks could operate good businesses, blue collar sorts, and creative sorts. Jane said at a later stage, great ideas require old buildings. (It’s an interesting debate whether by that she meant—because the space in old buildings is cheap! Or because great ideas only flourish in lofts of sandblasted century-old brick. You can tell a lot by how people answer this question. Try it.)
My belief is that Jane would shrug at the problem of trying to re-create—or create—a vibrant mixed community in a newly built community. Imitating small scale stores is largely meaningless when the rent is so high that no one except dentists and chains can afford them. What the problem is really about in contemporary Toronto is to stop the demolition of older buildings so they can provide cheap work and retail space for enterprising sorts of people.
The epitome of BAD in modern planning, Jane would tell us—as I divine it—is the Avenues Policy in the Official Plan, which is a scheme to tear out the successful main streets and rebuild them with expensive mid-rise building. It is a plan to destroy local commerce—the Toronto equivalent of urban renewal.
When this morphs into trying to provide cheap space in new buildings, I don’t think Jane is any help. That doesn’t mean there might not be some ways to address this in new construction. These are not easy problems. But Toronto’s Planning Division doesn’t even try to deal with them. The Economic Development Division has evaporated. And if you think and hope the left on Council will carry the flag here, that seems dubious. Too many are in thrall to the construction unions who want to destroy and build, destroy and build, because that provides construction jobs.
The knotty part is financing, taxes and mortgages. How can you build and finance new construction and have it generate cheap work space? Jane tells us zip on this front, except don’t tear down the old. She was against taking grants or using subsidies because they didn’t work to save communities. So we have to leave Jane behind when it comes to ways to finance cheap work space in new buildings.
Another version of the urbanista fallacy is the design fetish. (This pains me to say, because I am an architecture junkie and love beautiful or unusual buildings and dream of ways to make them happen.) The urbanistas will say planning is about built form, that is, what the buildings look like. They’re right in the sense that that is indeed what planning, as practiced, is about—and doing a bad job of it. What it should be about is the “use” of the buildings. It is after all land use planning. It should be about how the buildings are used. If jobs require a building to look a certain way, then it is a good building, even if the urbanistas don’t think it’s beautiful. Jane would agree with me—she told me so over zucchinis—“it’s the use that matters, not the design.”
In the right wing press, Jane Jacobs is about NIMBY-ism (“not in my back yard”). This is not a fair allegation. Because Jane was mostly about stopping massive construction projects. In Toronto her big victory was stopping the Spadina Expressway from plowing through downtown, and in New York, the Crosstown and West Side Expressways. This is not merely the back yard!
Did I hear you mention regional planning, containing urban sprawl, accommodating massive population growth, intensification? These are real and pressing problems. I don’t think the gospel of Jane helps much.
And Richard Florida? He is good, even if over–exposed. Jobs in the creative sector are an engine of growth. Now, Richard, a lot of those jobs need cheap space. What have you got to say about how to supply it? Pardon. I didn’t hear you. Pardon again. Richard, are you there? Oh, he’s busy at Rotman, organizing research grants from billionaires—for whom start-up is what you do in your Porsche.
Jobs, Jobs, Jobs
Toronto planners approach planning as architects and designers with little regard for the commerce of the street—which is where the jobs are. The Economic Development Division (with a few exceptions among the cultural planners) is equally blind. Jane Jacobs’ great message in The Death and Life of American Cities was…“don’t tear down a working neigbourhood. It may look a decrepit but you will rarely recreate the economy and human networks you destroy. You do more damage than good.” Pretty simple. [See Jane, Jane Jane]/planning/comments-and-rants/#jane-jane-jane).
But that is exactly what our Planning Division wants to do in Toronto. They find all the great main streets, the vibrant hearts of local commerce, and they call them “Avenues”. This means the Official Plan designates them for mid-rise redevelopment. Which means: they are targeted for destruction. And they’re proud of the policy, because it lets us build more housing, even though we don’t need any to meet provincial targets. See [Provincial Level Planning]/planning/comments-and-rants/#provincial-level-planning).
My experience in the last ten years has been that the Planning Division has been too little concerned with jobs. Too little because they focus on preserving employment space for major white collar jobs (e.g. bank and finance) and big factory jobs and not enough on small scale and start-up businesses, which is where new employment is created.
The topic is complex but it is extremely important for healthy communities. We want jobs in the neighbourhood, not miles and miles away requiring expensive commutes. Obviously some commuting is going to happen in a healthy and vibrant economy. But we’re long past the era where jobs are dirty and noisy and must be kept far away from where people live. Factory jobs seem to be a declining sector. Much greater effort should be spent getting employment space right in our neighbourhoods.
An important aspect of the jobs issue is affordable retail space. This is not just the key to vibrant main streets which are the heart and soul of local communities. Affordable space also means local jobs. What do the planners do? First sin is their policy of tearing down and rebuilding on the Avenues. They insist on retail at grade in all new buildings on the main streets. That’s good. But they also allow oversized stores to accommodate the chains. This will be the future fight on Queen Street in the Heritage workout.
What’s the result so far? Walk down Queen West and count the “for rent” signs and empty stores. And dentist offices. Jane warned us. Don’t rip out streets that work.
Think about [the finances of all this]/planning/comments-and-rants/#let-s-talk-about-money) for a moment. New buildings get re-assessed and real estate taxes jump up for new businesses. Who can afford higher rents?
Condo developers tend to hold on to that mandatory space in the new buildings as opposed to the condos which they sell. Because they get a rebate on their real estate taxes for empty unrented space. It doesn’t cost much for them to hold out for high-rent tenants. And they do.
To the credit of Mayor Tory, in January 2017 he got City Council to eliminate this tax break.
But developers can deduct the rest of the losses on that empty space from the profit they made on the condo building up above.
Why aren’t the planners up in arms about these financial issues at the public meetings? Maybe I should say: where is the Economic Development Division? And why do community activists ignore this?
Yes, I’m more concerned here with small and new businesses, not large, white collar, corporations. I’m not against bank and hospital and university and insurance jobs. They get lots of attention. The planners neglect software start-ups. New restaurants. Specialized auto services. Home care services. Artistic lighting companies. Retrofitting old houses. Specialty electronics, retail and repair. And the like. Things that are reasonably compatible with residential neighbourhoods. We often hear the words “creative industries”. These need protection. And they’re not getting it. My beef is that “planning” seems at war with the needs of such businesses.
The Official Plan has an Avenues Policy. This is the policy in the Official Plan that certain mostly downtown streets are designated as Avenues. If a street is designated as an Avenue, the permitted zoning can be changed to 8 storeys. These streets are typically low rise and commercial, for example, St. Clair Avenue West or Yonge north of Eglington. What this means in reality is that the planners want to tear out all our most successful main streets and rebuilding them as mid-rise residential building with retail at grade. Planners like to say Toronto can fulfill all its goals for new housing by building like this on the Avenues.
Tearing down old warehouse space to build more condos. Why? More of these should be recycled. But the City doesn’t have the power to prohibit demolition of industrial buildings. BAD
The City actually wants to tear down and rebuild. Because bigger, newer buildings increases tax revenue. The development and construction industry and the construction unions are in on this. They all profit from building, with nominal regard for what is left after. Preserving older buildings for economic reasons as opposed to [“heritage”]/planning/comments-and-rants/#heritage) reasons doesn’t cut it.
The whole cycle is destructive to opportunity for small business.
How to fight this?
Put in place a Secondary Plan for the Avenue which overrules the Avenue designation on height. Limit the height to 3 storeys so that new buildings will be uneconomic. If new buildings can’t be defeated, zone the retail space at grade to be small units, too small for chains, so hopefully the rent will have to be low.
One popular strategy these days to deal with this problem is getting a “heritage” designation for the whole street. This allows control over all buildings, even those that have no heritage value. It allows for a requirement that new buildings should have harmonized design and height.
At the moment, you hear about it as a technical problem of the Official Plan categories, Employment Districts and Employment Areas, which lock up developable land. And this will be the focus of the Official Plan (OP) Review process. Those who thrive on condo construction will run away with the OP in the interests of the great bubble. But there is more to a healthy economy than building condos. Of course construction is a good thing, but if that’s the only source of jobs—watch out, Toronto!
The debate needs an additional focus on non-construction jobs. Here is a short list of employment related issues:
The planned destruction of cheap and viable retail space along our main Streets by virtue of the Avenues Policies in the Official Plan.
Employment Districts and Employment Areas.
The City needs the power to stop the Demolition of older, useful industrial buildings. Only the Province can give this.
Compelling mixed use buildings to have cheap employment space.
Where is the Economic Development Division?
Financing cheap employment space.
The Active 18 Experience
In my Official Plan Rant –- [Secondary Plans]/planning/comments-and-rants/#secondary-plans)—which is highly recommended—and West Queen West at the OMB) and South of Queen)—I discuss the Active 18 experience in trying to protect and secure employment space in our neighborhood. Key points in that history:
A—In 2005-2006 in the West Queen West Triangle, south of Queen:
The City invented a jobs policy in the middle of the OMB hearing to try to force the inclusion of some work space in the new buildings. This was an elaborate discussion of mixed use zoning. See below. A noble effort but too late. Where was the policy before the developers made their applications to City Hall? And, having worked it out, why has it died for other areas?
In desperation we tried to get the old warehouse building at 48 Abell designateed as a heritage building so we could stop the demolition of this great employment space. We failed. The enemy at the City Council vote was not so much the developer, whom we could have beaten, but the construction unions. Guess what? In 2010 there were no plans to tear down the main part of that building!
We succeeded in getting some live-work space for artists in one of the new buildings as part of a compromise to allow the building at 150 Sudbury to go ahead. Artscape is the developer.
In 2010 A18 tried to alert the Planning Division to the risk that their policy of relying on Section 22(7) to block developers from forcing the conversion of Employment Areas was in jeopardy. This was spelled out in our June 22 2010 letter. Planning’s response was July 13. This was an afterthought by us in an effort to get them to move on a Secondary Plan for the Northwest Triangle.
July 13 Response
The Avenues Policy which says tear down two and three storey traditional commercial streets and build new eight storey buildings is a long term killer for small retail. To me it is plain this policy must be abandoned. It’s appalling the planners think it is good.
At one point somebody thought it was a good idea to let the intensification happen along the main roads in Toronto—the Avenues. The City did need space for more people and mid-rise along these streets seemed like a good idea. To developers, that is. But small stores can’t pay the rent in new buildings. Further, developers, looking for financing are reliant on pre-sales and pre-leases with wealthy chains which smaller operations can’t match. Game over for small business.
Small retail is everybody’s favorite road to riches. Think—small restaurants and specialty shoe/hat/craft boutiques, etc. etc. Perhaps I think some of this shopping is frivolous but there’s no question I’d rather save and promote these job sites than favour main street mid-rise condo projects. Residential condo sites are just not the priority these days.
Employment Districts and Employment Areas
The sections in the Planning Act which protect Employment Areas and Employment Districts are out of touch with modern employment trends. Those policies are holding land for major industry. That’s not going to happen. Jobs come from start-up small businesses. Small business needs cheap space. Some need funky space in older buildings. Some just need cheap space, which never comes in new construction.
See Ch 4, Section 4.6 and Ch 2, Section 2.2.4
See Maps 13-23
Employment Districts are larger areas and Employment Areas generally are smaller areas scattered around the City, typically along the rail lines. It is the latter where we need an inventive policy allowing mixed-use development which requires employment be included. And not just any employment space but cheap employment space.
The City has no power—which only the province can give—to stop demolition of non-residential buildings. I would never argue that all the old and abandoned industrial buildings should be saved. But the City does not even have the basic tools to write a policy to save some of the older funkier buildings that convert well to small business use. 401 Richmond is an example of how an old building can be successfully recycled.
The standard answer to the demand for cheap space for jobs is that it’s not economic. That’s true, if you tear down the cheap space and put up new construction that costs so much and is taxed at higher rates, so that that any space inside is expensive! Part of the answer is to stop the wanton demolition of the cheap space in Toronto.
So, Ms. Premier, first step, give the City the power to do that. If you are serious about requiring employment space as part of the Province’s “Places to Grow” policies, then give the policy some teeth!
In desperation, people turn to the Heritage Act. which gives the power to stop demolition of some older buildings. We tried declaring 48 Abell declared heritage in the WQW fight.
No matter how many old buildings are saved for employment purposes it will be a fraction of what is required. And we want and need lots of new construction. So the issue is how to enforce mixed use with good but cheap employment space in new construction. If we can figure how to do that, we can release some—even a lot of—the lands in Employment Districts and Employment Areas for development.
We can enforce the former by requiring new buildings in these areas to include a percentage of space that is for employment. This is not easy but neither is it impossible. The City prepared such a policy in the WQW OMB case. See WQW at the OMB. As policies go, we can do better. But it’s a start.
In my view, free market ideology gets in the way. “You shouldn’t prevent a developer from getting maximum return from his property!” Let them sell or rent, however they can make the most money. Damn the neighborhood! You see this same attitude in Planning’s refusal to consider limitations on bar concentration. It is expressed in language of “can’t”. The “can’t” part is wrong. They mean “won’t”. It is a reflection of contemporary planners’ fixation on the supposed benefits of the free market.
Nobody believes anymore that the market is wise and produces a result that’s inevitably good for society. When are the planners going to catch up with the bank regulators!
The dumbest part is that the province’s guidelines for development in fact call for employment space, not just new residential Space. The City isn’t even trying to fulfill this part of its planning mandate from the Province.
In the WQW OMB case, the City came up with a policy for enforcing employment space in the new buildings. It was too late in the day to do any good. And I have some criticisms of it. But it’s just not true it can’t be done.
The City presented a survey of the employment space that existed before the development started and then purported to require as much job space in the new buildings. The scheme foundered because most of the old industrial buildings had been torn down before the developers bought the sites and the policy was being proposed after the development applications were tabled. But who’s to object if a policy requires a majority of employment space in new mixed use buildings. (Guess? The first two don’t count!)
The City’s WQW scheme was not going to produce cheap space, but it would produce employment space.
There is no reason to release the land in employment Districts or Areas on the basis that it goes to the highest and best use, that is, the most profitable for the development industry—in other words, condos. It’s there for long term employment. Not construction jobs. Under this approach the land will be worth less. That’s the point! Condo builders will say, “we can get a better return elsewhere!” The construction unions will say, “do what the capitalist bosses want!” I say, hang tough! Let the property value fall, until it’s economic to build for jobs.
My observation and fear is that the planners and politicians are so paralyzed by the fear of opening the door that they come up with any policy. And eventually the whole edifice will collapse in a heap.
Here’s the dirty underbelly of the argument. Some planners, the architecturally inclined, put out the idea that planning is only about built form. That is, if a building of a certain size and shape is OK from a planning and architectural point of view, there is no basis to say one use as opposed to another is permissible. If you admit a building of ten storeys fits ok, then there is no basis to say any part must be used for employment—or anything else.
This is the great design fallacy. It’s not all about design, fit and great architecture. The Planning Act is mostly about land use. Indeed it’s not strong enough on design. See [Design Rant]/planning/comments-and-rants/#architecture-and-design). It’s the professional planners and their out-of-date free market ideology that are at fault.
Here’s where Jane’s message, twice removed, is useful. It’s all about how the space is used, about healthy, vibrant, interactive streets with mixed uses. Whether Jane would say in the modern context it’s OK to enforce mixed use by a plan which requires some space for employment uses—since she hated all plans—is an open question. If she won’t, I would.
Financing Cheap Space
The issue isn’t just employment space, it’s cheap space. Job growth comes from new small business. New small business, including retail and artists, need cheap space. What is evident is that you can only go so far with zoning and demolition as a means of creating employment space. How do you finance it?
Answer #1—Artscape is a successful model of financing cheap space for artists. The problem with Artscape is not that artists are being privileged. The problem is that the City isn’t doing the same for other types of small businesses.
Answer #2—Artscape is a non-profit, independent corporation. Where is the “Artscape” for small businesses? Are you listening, BIAs?
Answer #3—Section 37 allows deals with respect to density bonusing. That’s how the Artscape deal in WQW was done. There is no reason why such deals are restricted to artists.
Answer #4—Where is the Economic Development Division? They should be leading the charge on these issues.
Circa 2010, Section 37 is good. It directs compensatory benefits to the neighbourhood that suffers from an increase in density. It has helped the City in many ways, from TIFF to Lisgar Park. Yes, it’s an extra kind-of, sort-of tax on development. That’s a good thing. Municipalities, especially in dense downtowns, don’t have enough money. And developers do.
Circa 2017, Section 37 is bad. - Affordable housing is the latest rage as a Section 37 benefit. It is not a community benefit to the local community. It is just more people. That might very well be a benefit to the city as a whole but it is not a benefit to the local neighbourhood. It should not be considered as a Section 37 benefit. See [Affordable Housing]/planning/comments-and-rants/#section-37-and-affordable-housing) - And where it is in fact used for real community benefits it presents the City the difficult job of enforcing that that public benefit is real and continuing. - As with many, many institutional problems,there is enough money for capital projects—for buildings—but not enough for programs. Section 37 can’t be used for programs. It isn’t to be a substitute for standard budget items and taxes. Perfectly sensible. But think where that leaves us. - The successful examples of Section 37 in WQW are Lisgar Park and the Theatre Centre. The problematic one at the moment (June 2017) is TMAC.
Section 37 has been good for West Queen West. Look what we got. And let’s be realistic. We had a unique opportunity with so much development in so short a time. But let’s not be modest. We played our cards right. Remember the history? No?! Detention for you! If you want to review:
- Section 37 was not part of the OMB case; the OMB doesn’t award Section 37 benefits.
- But they were part of the settlement of the appeals.
- We got more Section 37 in the agreement for 2-90 Lisgar which produced TMAC;
- and also in the settlement of 440 Dufferin which produced—or will produce—the employment incubator.
- Section 37 money funded two parks, see Lisgar Square and 11 Peel.
- The settlement with Verdiroc of the 48 Abell appeal produced two minor benefits. They were long and hard in the enforcement.
- And the Section 37 Treaty with NORTH-SOUTH A-B ████████ established the Nuclear and Bio-weapon Storage ████████ See [████████] for those details.
If you don’t, won’t, or can’t remember the historical details, remember this—Section 37 deals can get messy.
The Verdiroc problem? The Section 37 benefits as the appeal was settled were:
- a right for the City to buy six units on the Mews at supposed bargain prices;
- artist studio spaces in the affordable building in the west end of the property which was the first to get built out.
In the first case there was great difficulty finding any arts organization that could afford the space. Eventually in 2016, Ben Woolfitt’s foundation committed to buy them for a new art gallery. This was a great result, but it was close to a no-go.
The second? The studio space was never built into that building until some of the artist residents discovered the obligation. As much as I can tell, the space was too small and went unnoticed after construction and occupancy. Eventually it got established. Lesson: the Planning Division is not equipped to do detailed enforcement. This is not criticism as much as an acknowledgement of a limitation.
Section 37 Politics
Section 37 may have been good for WQW but it’s the bad boy of planning politics. It seems to get lots of City Council attention. Google Section 37, Toronto then curl up with the device of your choice. And a recharging device.
To suggest the whole city is jealous of what we have achieved would be shallow and out of whack. So let me repeat it, sort of, conceptually. Everybody knows that ten years ago WQW used Section 37 to snatch a decent neighbourhood from a mindless condo tsunami. And Section 37 went from an annoying afterthought to the cure-de-jour.
Back in 2005 Section 37 benefits had a bad name. One of the early news articles called them the “crack cocaine of development”. See Clippings 2006 now everybody wants to get high.
Here’s a key fact that has been consistent throughout the decade and the entire debate. The Planning Act has always been interpreted so that the benefits have to benefit the immediate neighbours. Downtown areas with lots of development just get more Section 37 money, period. Underlying a lot of the friction is this—suburban councillors see this as a budget bonus for the inner city and want to share the money. One report to City Council suggested this should happen. But the guidelines as finally adopted did not accept this and the amendments to the Official Plan stuck to the old, and I’d say, proper view of things.
So, bugger off, Scarborough! (Oh, sorry, that’s so rude!) The downtown bears the burden of the extra density. So it should get the benefit of this money.
But that is hardly the end of the Section 37 debate.
Section 37 politics—Part Two
The money from Section 37 is…wonderful and everybody wants it, or to control it. Well, actually it’s not that much, but for politicians who won’t raise taxes it’s something to argue oover while the city rots.
- How Much in Total? Look what we got for a decent summary of the actual amounts collected.
- A Fixed Rate It is a perfectly legit issue that the Section 37 contribution should be predictable. Should we set a rate per square metre, for example? Make it just another tax on development. (Does this makes sense? Yes, it cuts out messy discussion and bargaining with the developer over how much money and how much extra density. But, by making it a rule and a right you have simply increased the permissible density. Another nail in the coffin of the Official Plan and zoning rules. Here you would have an automatic bump-up in density. This is twisted! Why not fix the density rules so they mean something and then bump up the standard development charges the developers pay now for basic services? And for a peek at how really, really twisted this will all become see the world of the future—go to [Comments and Rants—Affordable Housing]/planning/comments-and-rants/#affordable-housing16))
- Profit Margin If there’s to be a tax should it be based on square footage, or profit margin?
The Arts In the past few years, Section 37 benefits have been most famously used to fund arts facilities. WQW is an example. The TIFF facility is another. Most developers stopped complaining about Section 37 and learned to wear it. They come forward with their proposals and include a list of possible Section 37 benefits. Or just say to the community in the public meetings—you tell us. Non-profit groups go shopping for pending developments to get them free space. In an era of a building boom, why be shy? The totally legitimate issue is whether the arts are getting too much of the Section 37 loot. Just because that’s what the neighbourhood wants, does that mean they should get it? I note in passing the Corktown Residents have established a list of priorities for Section 37 benefits, when they arrive. Good for them. But there’s the rub. Should the people in their chaos and grubby lives decide their few pleasures, or the planners in their ivory towers?
Control? A special fund etc. Section 37 money should not go into General Revenues when it has been accepted by the City for specific purposes. I am sceptical of some of the reform zeal on this front. The money doesn’t go into the councillors’ pockets. The reformers are folks who want to control how it is spent. The reformers want to channel Section 37 money away from its intended purpose—to compensate for extra density.
Parks The Parks Division, chronically underfunded, want the Section 37 money to upgrade local parks. A lot of these upgrades should be part of regular maintenance.
Affordable Housing It’s probably fair to say that affordable housing is the most underfunded municipal function. (Up there with transit!) And no surprise that City Hall housing bureaucrats turn their eyes towards the Section 37 funds.
It’s hard to be critical when the need is strong. But I will. [Before you get out your knife to attack me as NIMBY remember the WQW Triangle has a large affordable building which was totally supported by Active 18.]
Section 37 and Affordable Housing
It’s a pretty obvious argument that affordable housing does not benefit the immediate neighbours but rather is a general public benefit. Arguments to the contrary, most people would agree, are just twisted words to get the get the money. Yes, of course, affordable housing needs some government money. But this is not the way. There is a much more elaborate policy coming called “Inclusionary Zoning”. It is discussed in more detail in [Comments and Rants–Affordable Housing]/planning/comments-and-rants/#affordable-housing16). There are serious problems there.
But, here’s the point, using Section 37 money to bring more people—“the affordables”—into the neighbourhood increases the burden on local facilities and thus is a disadvantage to the neighbourhood. Not a benefit.
Standing back a few yards—or miles—here’s the issue. The province is requiring [much greater downtown intensification]/planning/comments-and-rants/#the-future-is-different). [The real crack cocaine of development these days is the province’s policies for intensification.] To make this intensification work we need many more public benefits in the intensified core. Section 37 is a back door way to get these, sometimes.
Would it be better to bite the bullet and simply increase the development charges to allow a budget for extra parks, recreation centres etc.? It would make some people happy because the cost of development would be fixed. Period. It would also cut out the local community from the discussion of how much intensification to accept—that might make the Planning Division happy, too.
Getting the price of housing down to affordable levels is a central problem in our modern cities. If planning has a role to play in moderating unequal income distribution, this is it! Even the planners are onboard for this. The issue is—how?
In mid-April 2017 the Provincial government announced a package of reforms and new regulations they hope will address the spiraling cost of housing. One very good thing about the package is that it steps outside the realm of land-use planning and addresses the money questions more directly. That doesn’t mean these proposals are good enough. I have some comments here but with this critical qualifier, that these proposals are brand new and my thoughts are speculative.
- Tax on foreign buyers. Rent control makes sense but is it high enough? Nothing wrong with rich people investing in real estate. Coupled with the tax on vacant homes this may cool the speculation which takes the form of rich foreigners buying Toronto condos and letting them sit empty as a way of stashing their money someplace safe.
- It is hard to know how many empty condos there are. It seems a lot.
- Between empty condos and approved but unbuilt units one would like to know how much housing is needed to meet the Provincial housing targets.
- Perhaps the provincial targets are unrealistically low? Perhaps more people are moving to the big city than the demographers expected? But is the demand that people want to live downtown so surprising?
- A lot of bad planning decisions are based on the supposed demand for units. Will we now see that demand is a ghost?
- Rich people still need places to park their money. Are rental buildings an answer for them?
I’ve noted elsewhere how pathetic the planners are in their traditional planning functions in confronting the super-profits made by developers. [They don’t do it]/planning/comments-and-rants/#let-s-talk-about-money). They’re very good at operating a system of fake planning which inflates property values. See [What Plan]/planning/comments-and-rants/#what-plan)
About affordable housing. Let’s pass quickly over the weakness of higher levels of government in subsidizing low-cost housing. I’m talking to you, Ottawa! Guaranteeing and subsidizing mortgages for non-profits was one successful programme that did this for many years. It led to a generation of non-profit and co-op housing projects that, for a while, funded the regime in which these independent housing providers were established. It wasn’t that expensive to the federal budget. But the federal Tories squashed this for ideological reasons. And for the last fifteen years, through the boom years, there was virtually no new source of affordable housing in Toronto. The politics of all this are another story and in any event funding on this scale truly is above the pay grade of local planners.
I should note in passing that there have been a few deals under Section 37 to provide affordable housing. Pretty minor. The Artscape deal at 150 Sudbury is one. See WQW at the OMB—Settlement
To make a long sad story even longer, the provincial government has recently tried to establish a new source of affordable housing, and the political calling card is “inclusionary zoning”.
In 2016 the Province amended the Planning Act to give municipalities new power to permit “inclusionary zoning”. This is billed as a way to get affordable housing. It is an important initiative. Exactly how it works is not yet determined because much depends on the enabling regulations which have not yet been promulgated. And then Official Plan amendments are necessary before the City can do anything. Got it? Study the amendment to Section 16 of the Planning Act, Subsection (7): “The policies described in subsection (4) shall include the prescribed provisions and provisions about the prescribed matters.” That should make it clear.
The details about how this will work are more important than the other details. Follow the magic ball.
Here is the latest government declaration of what is intended.
- A municipal assessment report is to be prepared prior to adopting official plan policies for inclusionary zoning and reviewed every five (5) years. This report will be subject to criteria set out in regulation.
- Municipal inclusionary zoning requirements must be outlined in municipal official plan policies.
- While inclusionary zoning by-laws cannot be appealed to the Ontario Municipal Board (except by the minister), appeals of typical zoning matters, such as building height and density, are permitted even when used as measures and incentives to meet inclusionary zoning needs.
- Municipalities may permit affordable housing units to be located on another site, subject to criteria set out in regulation.
- Municipalities cannot accept cash in lieu of affordable units.
- Municipalities may use Section 37 of the Planning Act (allowing for greater building height and density in exchange for community benefits, such as heritage preservation or improvements to parkland) in combination with inclusionary zoning, subject to criteria set out in regulation.
- Landowners must enter into agreements with the municipality that may be registered on title and enforceable against subsequent owners, to ensure that the units remain affordable over time.
- The minister is provided with regulatory authority to exempt certain developments from inclusionary zoning.
- Municipalities must establish procedures for the administration of affordable housing units so that they remain affordable over the long term and meet reporting requirements.
As noted, there are regulations yet to come that will be very important to the working of this new regime.
Let’s think through this new scheme. We’re going to be living with it for a long time. It is at least an effort to get at a substantial stream of affordable housing. But why did it take so long? And it’s a scheme that depends on the building boom continuing. We only get affordable units as a fringe benefit of major projects.
Problems to watch:
- It creates an as yet undefined scheme for administering this new housing. Will the big builders be the long term administrators of the affordable buildings, collecting the rent? Determining who gets the affordable units? Fixing the plumbing? Administering the funding for repairs? These are are all functions familiar to existing non-profit housing providers. But now the City has the job of supervising?
- What’s the meaning of “affordable”? I read that the definition will be rent at 30% of income. If that indeed is the standard when the regulations are drafted, will it mean the new landlord has to take folks on welfare and 30% of their income?
- The government blurb above says the required units will not have to be in the same building as the project for which the landlord is getting density bonuses. Well, if not, how far afield will the poor folks be moved? This represents a retreat for the government, which preferred that the units be located in the same building.
In fact, it means that the scheme is not inclusionary zoning at all. The City can’t force the builders to include affordable units in the same building!
- The scheme as outlined allows the Section 37 benefits to pay for heritage and park upgrades. Whatever this eventually means in practice, it points to a major erosion in the neighbourhoods. “Park upgrades” is the next column over to “park maintenance”. There are major issues buried here. Does it mean that the builders can bargain for higher density, provide nicer parks for the rich and housing for the poor somewhere else?
- Note, the scheme provides that there will be no appeal to the OMB of the inclusionary zoning deals. Again, we need to see the eventual wording. Does this actually means that the spin-off building can be parachuted into a new neighbourhood and there will be no right of appeal for that neighbourhood?
- It appears to me that the “affordable units” are being achieved in exchange in exchange for bonus density. This is how Section 37 worked. Will there still be Section 37 benefits available to the neighbourhood that suffers the extra density? If so, will they be reduced?
I foresee many problems. And probably a major objection. Builders will want more density for more profitable units in exchange for the less profitable units built elsewhere. The legislation envisions that Section 37 will be used. (It’s not clear whether it will be completely used up.) This means communities will suffer more density, but what will they get as compensation?
It forces the question: are more people in the ‘hood, whether rich or poor, a benefit or compensation for the great density and bigger profits to the developer? And this: has the province, by a sleight of hand, just increased the permitted densities across the board—forget what the Official Plans say?
How can planners approach the bargaining on this without full disclosure of the developers’ profits?
How will this scheme be imposed on condo buildings?
So, I would guess, the issue will sharpen gravely. Community groups might be perfecly willing to have affordable units in the neighbourhood—I hope so—but might now be opposed to Section 37 benefits and gifting higher density to developers because it brings only the burden of more people, and no additional, compensatory services.