Introduction

While most of the West Queen West action in 2006, 2007 and 2008 was south of Queen, there were a few proposals for land north of Queen. They were a wake-up call for Active 18. And thereafter there were two major development proposals in what we started calling the North West Triangle, which was then ripe for development. One was built eventually at 11 Peel, called commercially The Carnaby, while the other at 440 Dufferin has yet to be built. (See below.)

This map of the WQW Triangle south of Queen and the NW Triangle north of Queen shows the 440 Dufferin proposal marked as “SITE”. The numbered blocks are all part of the 11 Peel development.

It was generally acknowledged that the development south of Queen could have been “better managed”–-where did I learn such polite words!!!—if there had been a good plan in place before the development started. The plan and zoning designations north of Queen were slightly different but the problem was essentially the same: no plan! So we said to ourselves—and then we said it to anyone who would listen—let’s have a plan for north of Queen and put it in place now before the development wave hits.

The theme of this chapter is how the Planning Division fought us on this. Not just failed to plan but fought against planning. The story does not have a happy ending. The excuses they made for doing this are a lesson in doublespeak and bumbling. When the City and the Planning Division and their allies complain that the OMB is bad and should not be allowed to overrule the City and should be abolished, just remember: the Planning Division often fails badly. I wish I could follow this by saying, “and the OMB has a solid record of saving the City from its own follies.” Alas, no. But sometimes. At least I can say the threat of exposing the City’s follies to careful and logical scrutiny in a public forum is helpful. When they tell you they can manage nicely all by themselves, horse feathers! See OMB Reform

Various big picture planning issues pop up along the way in this story, Section 37, employment lands, height and density, secondary plans. Grease up your click finger to follow the story and the links…and lets go!

2 Gladstone Avenue

In 2006 a developer put forward a proposal for an eight-storey building for the northwest corner of Queen and Gladstone. The discussion of this was concurrent with the end of the OMB Triangle case.

Given the scale of building south of Queen, at 18 to 20 storeys, this proposal might seem like small potatoes. But it was north of Queen. And we were worried. While we supported substantial growth south of Queen in the vacant industrial land, north of Queen and east of Gladstone was a different story. The Queen-facing buildings were three or four storeys and north of that it was all three-storey-maximum residential.

Here is an original sketch of 2 Gladstone

The City would not accept the proposal for a social housing project on the terms proposed but did not oppose eight-storey height that was totally out of scale with the rest of Queen Street. This supposedly didn’t matter because it sat a storey or two down the slope into the railroad underpass so it wasn’t really so high. Still it dwarfed the Gladstone Hotel across the road. So began the sellout of the north side of Queen Street on height. At the time I didn’t think this was a huge loss. But it set the course of events for ten years as the Gladstone Hotel, one of our historic landmarks, has been dwarfed by the surrounding towers.

Active 18 supported the social housing but would not support the height. (see no indication of where to point to here)

In 2008 Streetcar Developments bought the site, did some minor revisions to the plans previously submitted, and the City approved an eight-storey condo project. (See Staff Report—07 142554 STE 18 0Z.)

11 Peel

In 2007 Context Developments acquired the Sanko “Toyland” site in the middle of the large block surrounded by Queen, Dufferin, Peel and Gladstone. It was called “Toyland” because it once functioned as a factory outlet for…toys. The building on the property was almost entirely a large one-story warehouse building. Its street address was from its frontage on Peel Street, at the north end. In fact it ran clear through the middle of the block and had an entrance on Queen Street. Context also owned adjoining land, which had a small frontage on Queen Street at the south end.

The block was designated in the Official Plan as an Employment Area. This is the equivalent of the Regeneration designation south of Queen, not in the technical sense but in the sense that it was obvious that it was “anything goes” as far as developers were concerned. More on this below at the discussion of Employment.

The developer, Context, hosted a series of meetings in 2008 to present their proposal to the community. Active 18 formed a “Toyland Tactical Task Force” and we went out in force to try to save the ‘hood from more planning disasters.

The meetings marked an interesting and good shift in the developers’ strategy of dealing with the community. Instead of the developer and the city working out what they could each live with in private meetings and then presenting this to the community, this time the developer invited the community in from the very first. This was part of a sensible trend across the city. If community views could be considered from the beginning, it lessened the fighting at the later stages. Most councillors like it, for obvious reasons. In retrospect, in this case, I don’t know that it made any substantive difference to the outcome. This approach became common in the downtown wards for a few years, and was begun by Councillor Adam Vaughan. (See Development Permit System.)

Anyhow, there we were in 2008 in the same room with the developer and the City planners, hearing and participating in a frank discussion on how to plan this block. The issue that emerged was where to have the park/open space: in the interior of the block, or along Dufferin? The developer wanted the former. We supported them. The City wanted the latter and refused the developer’s proposal. The developer chose to sell and walk away rather than fight. The second issue was, how tall? The developer wanted big-big-big and Active 18 said, no. The City wasn’t fighting this with any apparent enthusiasm. When the next proposal by Streetcar came along a few years later the City rolled over on height.

What was eventually built there by the next developer was a park along Dufferin Street with the highrises in the middle of the block. Active 18 thought this configuration and park design was poor. As I write in 2017, this new park has yet to built out. Time will tell how it well it works. To be fair, once the City ruled where in the block the park would be, they did accept public input on the design of the park. (See below.)

My view is that the money spent on the small uncomfortable park is wasted. Let’s see what it’s like when it’s actually built.

Nobody was arguing against some open space as part of this major project. The City wanted it as a public park on the Dufferin Street side. Everybody else thought a park there would be awful, right beside a busy noisy street and on land with bad slopes. To put the park in the middle of the block with building on both sides would create space that would seem private to anyone walking down Dufferin. “I can go in there? Really!” We said, “Take the more-or-less private open space, and a cash contribution for parks.” On the other hand, some park space north of Queen would be very nice in a ward dramatically under-parked. But, on the other hand there was and is a large school playground two blocks to the north. And there was a huge undeveloped block of empty unused land across Dufferin behind the 440 Dufferin site. Why use all the Section 37 money from this large project to build such a crummy park?

It was a bad decision. If we had some park moxie south of Queen it sure wasn’t working for us in this fight.

I want to give a GOOD to the discussion, although the result was disappointing. The developer had classy consultants and had thought out their proposal. And the City had a reason for objecting to the massing and layout. We disagreed. But the reasoning was serious.

Anyhow, Context sold to Streetcar, which already owned 2 Peel. And we moved on to their revised plan for the block. Before we got into detailed discussions with Streetcar about their proposals for the site, which came in 2012, Active 18 organized its own planning charrette for the Northwest Triangle. See below.

Streetcar

If you are trying to follow this chronologically, good luck. In fact, the development of Active 18’s Secondary Plan for the Northwest Triangle which is described below was mostly done before Streetcar presented its proposal for the 2-6 Peel Street property. (2-6 Peel equals 11 Peel. If you don’t understand that, then you don’t understand basic arithmetic—just like me.)

Streetcar was one of the best developers I dealt with in my ten years in terms of being open to the community and thinking like a downtowner. We had several meetings with them and their architects. Their plan gave the City what it wanted, a park on the Dufferin side, and configured their buildings along an interior street/passage. It’s unusual and interesting. Let’s see how it works. GOOD work, TACT Architects and Prish Jain.

Here are renderings before construction:

The view from the west of the new park. It looks as wide as a football field is long, instead of as being as wide as a hockey rink, as it actually is.

The Gladstone façade

Again, a GOOD to Streetcar for listening to the community.

Aside from choosing the second-best location for the park in this block, the design process of the new park itself was well done and the plans look good for an attractive space in an awkward location. It will be called Pessoa Park after the noted Portuguese poet, very fitting for the neighbourhood.

And two BADS. The City agreed, over our objections and warnings, to a 19-storey tower at the south end. “Bad precedent for the plaza site south of Queen. We don’t want the Gladstone dwarfed and surrounded in pit of condos,” we said like a sour-puss. “Oh, no,” they cried. “No, no, that’s completely different.” (See 1181 Queen Street West.) I won’t say here what the Planning Division finally did say about south of Queen.

No. I will. When we got to arguing about the overbuilding and height at 1181 Queen, one of the excuses was—gee, look at the big one north of Queen!

And, no surprise, the Section 37 money was all scooped to build out the crummy park facing on Dufferin.

A Northwest Secondary Plan

After the big whiff south of Queen and the two bad experiences (2 Gladstone and 11 Peel/Context) Active 18, never modest, decided in 2008 that if the Planning Division wouldn’t plan to protect the neighbourhood, then we would! And just as we did in 2006 south of Queen, we rallied our forces and did our own plan for the Northwest Triangle.

Our concern was, as I noted above, not just for the block just west of Gladstone Avenue and east of Dufferin (the Toyland/Streetcar block), but also for the larger block west of Dufferin to the railroad tracks which run northwest and north to Florence Avenue. There was as much empty land here as in the triangle space south of Queen. Room for thousands of condos or a park. Was that a full-throated warbling bureaucrat I heard singing, “we need a park, a park, a park”?

But more than that, there was the one-story large warehouse space at 440 Dufferin, discussed above, filled with industrial studios, artists, carpenters and the like. Some in Active 18 yearned for work space for artists, while others championed small-scale blue-collar and artisan work space. Whichever, we wanted to save employment space in our neighbourhood.

There are two important and overlapping themes to the NW Triangle story—a Secondary Plan and employment work space.

The first thread is our effort to put in place a Secondary Plan for the Northwest Triangle, and how the Planning Division fought against doing this. Secondary Plans are a decent (but not perfect) tool for communities to use to control and shape new development. The failure of the Planning Division to use them is a major BAD. The whining by the Planning Division that the OMB is terrible rings hollow to me when the Planning Division repeatedly shows up there with weak and out-of-date plans and invites defeat. Read on. First read the story of what happened to us. And later we’ll come back to how this general failing of the Planning Division has evolved.

The second thread is employment, which overlaps with Secondary Plans in the story of the Northwest Triangle.

Employment is a major planning issue all over the city, way bigger than the Northwest Triangle. We were an example. The issue, crudely put is this: how do you support affordable employment space, indeed any employment space, in the face of the tsunami of condos? Developers want to build and sell condos. There is a ready market. But where will all these new people work?

There is half an answer that is easy and the planners have relied on it, way too much, in my view. There could be a few “clean” employment uses mixed into the new buildings. Very clean. Like dentists, banks, and drugstore chains. Nothing wrong with a few dentists. But where is the work space for blue collar jobs? They are being driven out of the downtown. I don’t mean steel smelters. I mean carpentry shops and mechanics and the like.

Secondary Plan charrette

Steve Heuchert, one of Active 18’s stalwart steering committee members and a professional planner and adjunct planning prof at York University, had the good idea to make the preparation of a Secondary Plan for the Northwest Triangle a course assignment. It seemed like a sound exercise in the practical problems of real life planning. And it was. The results were terrific for all concerned.

The students surveyed and interviewed people in the Northwest Triangle neighbourhood. Three teams generated impressive hard copy plans. Several of us went up to York University to comment and judge. Then the prepared plans were presented at a public meeting—a planning charrette—organized by Active 18 and held at the Gladstone Hotel in December 2009. We publicized this as a planning exercise for the neighbourhood. And indeed it was a fair approximation of what the Planning Division should have been doing.

Have a look here and here for two of those excellent student presentations.

This was the third time Active 18 had presented classy public consultations on plans for our neighbourhood while the Planning Division dozed. See 2006 and 2008. They knew they had bungled south of Queen by not having a secondary plan. Were they generating one for north of Queen? No. But they came to watch.

After the student efforts and the public consultation, Active 18 prepared its own Secondary Plan and asked the Planning Division and the City to pass it and make it part of the Official Plan. Like I said, if they wouldn’t do their job, we’d do it for them. The steering committee considered and passed it (revised to Feb. 16, 2010 by the Active 18 steering committee.) Here it is.

PROPOSED SECONDARY PLAN

Summary

1. The area north of Queen and east and west of Dufferin is appropriate for intensification with the completion of the Dufferin Underpass.
2. It is currently designated as an Employment Area. That purposes continues to be appropriate and desirable.
3. The Secondary Plan sets out more specific goal and objectives for site specific development to further development of employment within the area.

Proposed Secondary Plan Area

- The proposed area is set out on the attached map. It corresponds to the area of the Official Plan north of Queen, south of Florence and Peel and east of the railroad tracks which is designated as an Employment Area.

Low Rise

- The surrounding area is all low rise and no development proposals greater than six storeys should be permitted and those only located such that they have no shadow impact on the surrounding residential areas.

Streets

- A standard street grid should be required of any developments in the large blocks east and west of Dufferin.

Employment and Section 37

- The lands in question should be developed to continue and expand employment opportunities.
- Site-specific development should stress guarantees of low cost space for compatible light industrial uses by Section 37 agreements.
- Small size space for start-up businesses should be favored.
- Recycled and retrofitted buildings should be favored.

Employment and Residential

- South Queen has been re-designated and developed for residential purposes and the neighborhood now needs maximum development of employment.
- Some transition areas may include some residential uses as part of a mixed uses.
- A substantial seniors' residence should be permitted as the sole exception to employment area designation.
- None of the land should be permitted for high-rise residential purposes.
- Employment uses should be compatible with the surrounding residential area.

Seniors' Residential

- There is strong need in the neighborhood for a seniors' residence. This should be the only substantial encroachment into the employment purposes of the area.

Site Specific

A---West Side of Dufferin

- A street grid within this area should be required as part of the first development.
- The portion of the existing building with the sawtooth roof should be preserved.
- The Florence Avenue portion of the area should be compatible low rise mixed use residential.
- Light industrial uses should be the primary use allowed here.

B---Between Dufferin and Gladstone

- This area should remain designated as an employment area. Mixed use is appropriate here including white collar and live/work.

C---East of Gladstone

- Mixed use including commercial, residential and light industrial is appropriate here.
- Any building massing and design should respect the primacy of the Gladstone Hotel as the neighborhood landmark.

Comments

• A Secondary Plan is just an elaboration of the Official Plan. No specific form is required. They are usually fairly detailed designs for a particular area with specific zoning. Pull up the Official Plan for the City of Toronto online and go to Volume Two and you will see several dozen Secondary Plans. They differ in style from the rest of the Official Plan in the detailed plans. Our proposed plan could not, of course, be passed by City Council simply as presented. It would have to be presented in the various meetings required by the Planning Act. Provoking the Planning Division to get off their duff and do the work necessary was exactly our intention.

• Our proposed Secondary Plan carried forward the purpose of the existing Official Plan and zoning, so, we felt, it did not require specific re-zoning. Site specific zoning would be necessary later as development proposals came in. But our Secondary Plan would be a clear record of the studied and considered intentions of the community and the City. The land should not be left without an up-to-date Plan given the major change to the immediate neighbourhood as a result of the new Dufferin underpass which dramatically lightened the traffic load on Gladstone and quite logically increased the pressure for residential redevelopment along Gladstone. We all felt, no more condos—we need jobs.

• The lands in question between Gladstone and Dufferin were designated as employment lands in Chapter 4 of the Official Plan on Land Use. The land west of Dufferin was not designated as an employment district in Ch. 2 on “Shaping the City”.

• The Planning Division wouldn’t touch the Active 18 proposals west of Dufferin. Their reason was that the employment designation there was solid and the area didn’t need any further protection from conversion to residential uses, or regarding height. This was wrong given the Dorsay decision, which we pointed out to them. Read our letter to Planning and their response. For more on this arcane but important dispute, seeEmployment. This was a double BAD.

But the Planning Division did give on two points.

East of Gladstone—A Small Success

There was a small success. For the part of the NW Triangle east of Gladstone the Planning Division agreed to do a Secondary Plan. It was pretty simple. They hosted the required public meeting. The owners of the Price Chopper site did not object to what amounted to a downzoning of their parking lot from high rise to low rise residential. The effect is that the Official Plan, by virtue of this Secondary Plan, prohibits high density coverage in that parking lot space.

This amendment seemed relatively obvious. The east side of Northcote was and is a stable low rise family neighbourhood. One intent of the Official Plan was to preserve the low rise neighbourhoods off the main drags.

How safe is this? Answer—nothing is certain but an up-to-date Secondary plan is as safe as you can get. Yes, a developer could apply for a variation of the Secondary Plan to allow for a high rise but given that the proposal would be poor planning on its face and contrary to an up-to-date amendment, it would probably lose if fought at the OMB.

So here is an example, the sole example I have, of the Planning Division being pro-active and supporting a Secondary Plan before the developers can weigh in with a bad proposal. At last, a GOOD.

Area Plan

There was a further concession of a sort. Planning agreed they would do an area study of the land west of Dufferin to consider a future road network. Studies have no force of law. As to our suggestion they designate some of the land west of Dufferin as a park before there was a fight over that land with a developer, well, get lost. Pardon? Didn’t I hear you saying yesterday that Ward 18 was park deficient?

Four years later, where is this Area Plan?

Employment Lands

At this point we need back up and explain Employment Lands and Employment Districts.

Which is harder? Olympic gymnastics or explaining Toronto planning?

Answer: Tasmania is an island.

Don’t get stranded thinking high rise condos are the only issue in Toronto planning. Where people work is just as important. Don’t argue with me!

First, the single word “employment” tells you nothing in technical planning lingo. There are various schemes to preserve land for employment uses. In the current market, condo developers would build condos on all of them. For all my beefing about the Planning Division I respect their determination to save land for future employment uses. In our particular neighbourhood they blew it. But at a higher level they fought the good fight.

• The part of the Northwest Triangle west of Gladstone and east of Dufferin was designated an Employment Area. The land in the NW Triangle west of Dufferin was designated an Employment District. The large parking lot for The Price Chopper grocery Store had no employment designation.

The Planning Division was prepared to move on some of the land not designated Employment Lands, Area, or District, or “area of employment”. But they thought they didn’t need to do anything for the area west of Dufferin. And they were ready to deal away the land in the middle, between Gladstone and Dufferin.

Employment Districts and Employment Areas are not types of Secondary Plans. They are land use designations in the Official Plan. That means zoning changes have to conform to these Official Plan definition. These designations cover a substantial amount of land in Toronto. The designation is intended to preserve that land for employment purposes, a very important objective.

Employment Areas were defined in the Official Plan at Ch 4.11.. The basic thrust was to deny residential development and allow only employment uses. Don’t confuse this with Employment Districts, which were defined in Ch 2.2.4 of the Official Plan. These are also reserved for employment uses. The former tend to be smaller sized abandoned industrial lands along the rail corridors. The later tend to be larger tracts in the outer area of the city, which have large scale industrial uses. The protection for the latter was tougher but not so tough as the Planning Division presumed.

The Planning Act also provided in Section 22(7.3) that a frustrated would-be developer cannot appeal to the OMB where a municipality refuses to change a planning designation into an “area of employment”. Thus if the City didn’t agree to the change the developer was trapped until the mandatory five year review came up when they could apply to amend whatever the City said. This limitation was put in the Act to protect the employment lands from constant erosion through OMB appeals. [Removing land from agricultural designation was another similar exception.] Another way to say this is that the City couldn’t keep up with the avalanche of appeals.

[Does Section 22(7.3) on “areas of employment” apply both to Employment Districts and Employment Areas? This is a question only lawyers could love! If it does not apply to Employment Areas then they are exposed to the OMB ruling in favour of the developers to recycle them from jobs to condos. This wasn’t the problem in the NW Triangle.]

This issue is discussed further and in more detail in my Employment Rant. As explained there, it is not at all clear that Employment Areas, as opposed to Employment Districts, are safe.

The Planning Division said they didn’t need to do a new plan west of Dufferin. They thought that since these lands were areas of employment, they were safe from condo development.

They actually didn’t care about the area between Gladstone and Dufferin and they bargained with the developer there on the assumption there would be conversion. This wasn’t so great a sin because the location of the property and the road reconfiguration was such that some conversion was appropriate.

The conversion of employment lands of either type was and still is a very important issue in Toronto planning all over the City. The demand for condos is so great that if allowed, the developers would consume all the available land building condos. Some crazy people think there should be land for jobs. Why? Because all these people need to work somewhere and it would be better for everyone if all the work spots weren’t in Ajax and Brampton and Hamilton. (If you have to ask ‘why’—shoot yourself!)

When and how employment lands could be converted to condos and shopping malls was the subject of a huge city-wide fight in 2012 as part of the City’s general review of the Official Plan.

The Planning Division said they believed that because of Section 27 (7.3) of the Planning Act that developers could not appeal the City’s refusal to re-designate “employment areas” to Residential to the OMB. Steve Heuchert and I cautioned them quite explicitly that the OMB might recognize an exception to this for the land along Dufferin based on the Dorsay case. Put bluntly the protection they thought they had was in serious jeopardy. And therefore they should put a Secondary Plan in place before the land was forced into condos.

The point of this arcane dispute was the effort by Active 18 to try to save a near perfect employment space at 440 Dufferin. It was, and as of March 2017 still is, a terrific old one-storey industrial building inhabited by a mixed bag of studio and fabrication shops: some artist, some artisan and some small scale blue collar. It was important, affordable work space for the neighbourhood.

The goal of our Secondary Plan efforts was get an integrated plan for all the triangle of land west of Dufferin and north to Florence which kept that affordable work space as is but set up some kind of trade-off with an owner or developer of the rest of the land that made such a deal feasible. It seemed to Steve and me that losing the Northwest Triangle to development was inevitable given the Dorsay decision. So a good plan that anticipated its conversion should be put in place, one that stressed continued employment uses. No question this was hard. The owner had the right to demolish. But we wanted to have a plan that made it attractive not to. Getting a mixed use building with more dentists and bank branches was second best.

There’s more below on the specific application of this problem to 440 Dufferin.

I admit I’m free with my criticisms of the Planning Division but let me say here that they were doing the Lord’s work. It was and is necessary to save land for employment purposes in metro Toronto. Big GOOD. Given their way, the development industry would build condos everywhere and there would be no place to work. Correction: no place to build new work space.

I note that this confusing scheme was replaced when the City finally got the amendments to the Official Plan through the system. See Chapter Four of the revised Official Plan.

The new scheme redefines Employment Districts as Core Employment Areas and Employment Areas as General Employment Areas and then gives some details how and where the boundaries of the former can be infringed for uses that don’t impinge on the heavier industrial uses intended for the Core. Basically the amendments allowed for a tidier way for the developers to infringe around the perimeters but did not give up on saving the core lands for heavy industry. The set of amendments also released a lot of the orphan Employment Areas for mixed use.

In 2011 the City, through the Planning Division, set out on its mandatory five-year review of the Official Plan. A key issue was reconsideration of the definition of Employment Lands setting out when and how designated lands could be released and converted for condo development. This was a huge issue. The City’s proposal was appealed to the OMB and the legislature (I attended one OMB pre-hearing on this with over a hundred lawyers!). check---did you mean to say legislature

And in that massive hearing there were many individual application for exemption from the general provisions, whatever they would turn out to be. And among the applicants for an exemption was the developer for 440 Dufferin. No surprise.

Since applications for changes to ‘employment’ designation could only be made when the five-year revisions were being considered, every developer with a dream of a condo project had to put his or her oar in the water. (Indeed the proposal was that the bar for applying for a change to an Official Plan “employment” designation be changed to ten years. So, double the trouble, it seemed. All this, I would observe, was sound and fury, because when the revisions to the general Official Plan provisions regarding conversion of employment lands came out the other end of this sausage machine the definition was broad enough to let the developers make an application just about anytime based on a test that was semi-tough.

Given the legal/OMB brawl I’d give the Planning and Legal Divisions an “OK” for the result of that battle.

I have no great quarrel with this general result—not that anybody cares what I think. My beef is that they botched it on Dufferin Street. They could have made a good try at saving 440 Dufferin and they did not.

Another perspective: Good the planners care about (largely phantom) heavy industry jobs. But all the studies tell us new jobs come from small start-ups. The City cares most about tax revenue. The little guys don’t cut it.

My criticism here is that the nature of employment being defended here ignored the real engine of job growth—small start-up firms and small business. Good to hold hands and pray for for big factories. And I’d never say “forget those dinosaurs”. Who knows? Those jobs are usually thought the best the working class can get. But where’s the focus on work space for small scale entrepreneurs? The Planning Division can point to growing employment in the city—hurrah—but those are mostly white collar jobs. To me there is a big BAD here.

440 Dufferin Street

440 Dufferin Street is the address for a one-storey, white warehouse building that runs about two blocks on the west side of Dufferin north of the railway underpass. (The developer’s corporate name is Siteline 390 Dufferin Street Inc.) Part of it is a handsome old industrial building with a saw-tooth roof and skylights. The rest is a series of junky add-ons.

This photo stresses the junky add-ons!

Inside, it is broken up into a honeycomb of industrial shops and studios and has been filled for years with a mix of artisans and carpenters and…whoever needs space less than factory size in which to build, fabricate, paint, whatever. The building is a treasure for the West Queen West neighbourhood—where the art gets made, and some money. It is precisely the kind of small scale production hub we, and the downtown, need.

It still functions in 2017 as I write, long after the OMB approval. Developers have no obligation to actually do what they argue is so necessary. But 440 is doomed, a victim of the condo craze. This is the water we swim in. The whys and the hows are a sad story for Toronto.

Why is it a sad story? It’s not a sad story because high-rise condos are being built and built and built in the downtown area. I hope it’s clear in the totality of this blog that I think downtown intensification is a necessity and a good thing, but one being handled very badly. (See Transit) It’s sad because destroying affordable work space in the downtown area when and where it could be saved is very, very bad. It forces the folks who work there to close up shop and maybe move to the distant perimeter of the city, or to other cheaper cities, like Hamilton. If they happened to live close by, as many did, it makes them commuters. It tends to force them to move to the fringe. The capitalist logic of this appeals to some. The richer, white collar types can take over the core of the city because…because that’s what the rich want.

Nothing intrinsically better about artists and carpenters. What’s wrong is forcing them out of the inner city. We would all do better and be happier if we mixed it up a little. The pure logic of capitalism, the logic of condo builders, says “Get out my way. I can make money destroying and rebuilding.” (See Jane, Jane Jane.) The Planning Division are their enablers. Call me crazy, but I think bankers and carpenters should live next door to each other.

The project at 440 Dufferin illustrates many BADS. The City fought putting in place a Secondary Plan that might have saved some terrific employment space. Then, sure enough, when the development proposal came along the City proved helpless to protect affordable work space. To her credit Councillor Bailao tried her best to fight all this, but was batted down by the Planning Division.

Here are the plans proposed for 440 Dufferin, to replace the affordable work space. We had the usual meetings to discuss.

Not only did the developer apply for an exemption in the context of the massive OMB hearing on revisions to the employment definition, they also made their development application to the City. They would presumably rely on the Dorsay decision to be able to stickhandle around the employment designation problem when their case got to the OMB, whatever the result of the OMB reconsideration of the definition might be going forward.

The City’s first response was “No. We’ll see you at the OMB.”

Siteline made its Application to the City on Dec 2, 2011.

Here is the first sketch of what the 440 project would look like.

A key part of that application was a document required of every developer, called the Planning Rationale. In this report the developer’s expert planner has to address the issues related to zoning, the Official Plan, provincial policies etc. Their planner was Pino di Mascio. (See the Planning Rationale.) Pino is one of the best. Too bad he works for developers. You would never know, reading this report, that the issue of conversion from employment was a key problem.

Siteline then proceeded with their OMB application.

After various meetings herein discussed, Siteline submitted a revised proposal on November 14, 2013.

This matter came up at the Planning and Growth Management Committee in November 2013. Active 18 opposed. (See our letter. LINK---can't find this specific letter) A key issue at this stage was the conversion from employment to residential uses. After a report from Planning and Growth Management, on Aug 25, 2014, City Council instructed staff to oppose the application at the OMB. Everybody in the room—except the developer—was pretending the Dorsay decision didn’t exist.

Active 18 decided on this file that we would fight through the OMB. The steering committee thought saving light industrial space was very important for our neighbourhood. It was not about artists, it was about blue collar downtown work space. We floated the idea of affordable light industrial space as part of the development, perhaps as the Section 37 benefit, but employment was the key issue for us. The land was a designated Employment Area. Yes there was the wrinkle of the Dorsay decision, but given the history with the Planning Division on this issue, and the ongoing fight about employment lands, here, at last, we thought, hoped, the City would take a stand. This was a perfect example of a functioning building to save.

In February 2015 there was an OMB-supervised mediation. Active 18 attended because we were a Party. The discussion there was confidential and privileged so I can’t report what happened. But what followed after the mediation was a revised proposal to the City. I will say that although A18 was a Party and part of the mediation, that does not mean much. The bulk of negotiations took place outside the mediation room and excluded us. It was a dynamic just like others I had seen. (See City Hall Maze.)

On April 28, 2015, Siteline sent the City a revised proposal reflecting the mediation, saying they would proceed with their OMB case based on the revision. What emerged in this revision was a proposal that one of the new buildings would be designed for employment purposes and the City would take some space in this building as the Section 37 benefit and operate a “manufacturing incubator”. This was what A18 had pushed as a compromise in the mediation process when the City gave up fighting against the change in the employment designation. The City’s cheery announcement is LINK. cannot find

On May 6, 2015, the OMB ordered the matter to proceed on June 15, 2015.

The City rejected the revised proposal and the case headed for the OMB although negotiations continued. The revised proposal on April 28 (see LINK---cannot find in our database or in the city database; only request for direction to council referring to it) was much improved (that is, if you give up altogether on fighting the conversion) and the eventual settlement was very close to this.

In the negotiations as we proceeded up to the OMB case the developer was very hardball. The Councillor, Ana Bailao, went to bat. No trouble convincing her that losing affordable work space was a BAD. I suggested that we create the equivalent of Artscape—called Workscape—as a nonprofit corporation to receive and administer Section 37 benefits for affordable work space. The developer didn’t like that. He had in mind, maybe some offices or short term leases.

And the Planning Division? And their representatives in the Legal Division? Now they feared they would lose the basic argument against conversion of employment land to residential land based on the Dorsay argument! (see LINK---what link do you want here) Too late for a Secondary Plan! Who knew they would collapse like this? Well, just about everybody!

Their lawyers were being cautious because of the Dorsay decsion. Where were they three years before?

So the discussions proceeded, conferring and bargaining about the configuration and massing of the proposed residential building. Forget the militant argument of yore that a Secondary Plan wasn’t necessary because the “employment” designation was so solid. (There is something I’m not going to say now about what I said to them then, which is discussed in the prior paragraph.)

The OMB case was started and exhibits were going in. Those exhibits are listed here.

To her great credit the Councillor kept the heat on Planning and Legal. GOOD If left to their druthers, the City bureaucrats would have given up early. An interesting sidebar here was the way this struggle shook out in the wording of City Council’s instructions to the Legal Division, and how Legal interpreted these words. I have seen this several time in my local cases and in other OMB cases where I have been acting for community groups. The Councillors word the instructions to Legal very tough, trying to force Legal to fight. And we go into Mediation (which is confidential) and to the OMB in this and other cases and we witness Legal much more ready to settle than the instructions from their client would indicate. (see LINK---to what?)

In terms of massing, the collapse was pathetic. The original design for the building, assuming we were going to get a residential building, wasn’t bad compared to the usual square boxes. This looked like the letter E. Good. But Planning said ‘too tall’ and so the building was reconfigured and now looked like a good old square box: not so tall, but with almost the same square footage. No loss of profit here. BAD By this point I was so used to this kind of disappointment I almost didn’t notice.

What happened on the fight over the light industrial space? In one meeting, some eager young types from Economic Development came to present their fabulous new idea: the City would take space for light industrial uses and run a new-industry incubator!

“Great idea!” we said. “You kids are so clever!”

It was agreed that the northernmost building in the complex would all be work space, some light, some office. The City would get two floors and free rent for 25 years. There was some back and forth over how many years. And that was that. The case was settled.

The OMB case actually started. The Book of Documents filed at the hearing by Siteline is at LINK---we don't have the book of documents in one place, only the index pages. That collection of documents gives a good history of the application, although it is from the point of view of the developer, meaning that the virtue of keeping the land as employment use is completely disparaged.

The eventual compromise increased the City lease for the “manufacturing incubator” in the north building from 10 to 25 years.

I give the incubator compromise a grudging GOOD. Not because of the Planning Division, but because the Economic Development Division finally got off their keister.

I give Councilor Bailao a GOOD for pushing hard.

I give the Planning Division two BADS for blowing this at every stage.

In this kind of dynamic, the position of the community group is like the spring mushrooms in the Ardennes Forest before the Nazis invaded France. Crush time! You sign on as a Party at the OMB to help the City fight for the right thing. You push the Councillor to push the Planning Division to push the Legal Division to fight back. It’s like the intelligence guys who said to the French hiding in their fortresses along the Maginot Line: “Hey guys, they’ll come through the forest and they’ll be driving a Dorsay. Remember we warned you about the Dorsay. It’s very fast. Why don’t you build a fort over there!” Never mind.

Already I gave them a BAD. Have another two. BAD, BAD.

And a few months after the settlement, we learned the whole project, as approved, was for sale. The warehouse space still is for sale, tenants included. They continue there knowing they could be evicted on short notice. The City has no jurisdiction to block demolition of industrial property.

There is no obligation on a developer to build what they get approvals for. Sales between developers of unbuilt approvals, or of development properties in the approval process, are common, as the West Queen West tale tells you. The Section 37 benefits won from 290-440 Dufferin are in theory binding on anyone who buys the property. But as sure as night follows day, the next developer will want to change the proposal.