Spacing introduces a new and sporadic column called Ask A Planner. We’ll ask some of our sources to translate policy and bureaucrat-speak and give us open and honest analysis on a current city-building topic. The first topic is the recent OMB decision to deny a big box retail complex to be built in Leslieville.
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The Ontario Municipal Board recently issued its decision in SmartCentres/Toronto Film Studios v. City of Toronto. As regular readers of Spacing will know, this was a very hotly contested battle in the media and at the Board. In the end, the Board decided not to allow the appeals, and thus denied Smart Centre to build their planned big box complex. The 50+ pages decision is surprisingly entertaining in spots. The goal of today’s column is to try to explain the decision for non-planners.
Q: What were the main issues that the Board issued its decision upon?
For the Board, the case came down to two main issues: Did the City respond reasonably to the SmartCentres application? and Did the SmartCentres application represent good planning?
THE CITY’S CASE:
Q: What did the City do in response to the SmartCentres application?
The City tried to prevent the project by passing new Official Plan policy restrictions.
Q: How so?
Basically, the Official Plan at the time said that converting the lands from industrial/employment to non-industrial/employment could be done, but it had to be justified through a special study where certain tests were met. The â€œlocal Councillorâ€ — Paula Fletcher — however, initiated a parallel, and separate, policy change process that â€œignored the City’s professional staff.â€ It was this politically-driven policy process that lead to the planning policy changes that unambiguously â€œslammed the doorâ€ on any retail on the SmartCentres property.
Q: What is wrong with that?
The Board found that the justification for passing these restrictions were completely unsubstantiated and unworkable, and were merely a knee-jerk reactionary response by the â€œlocal councillor to an unwanted application.â€ Furthermore, the Board found that the City’s response â€œrepresent[ed] a panicked response to an unwanted development scheme and are neither a warranted nor rational response.” In doing so, it found that the City threw its own (2 year old) policies â€œunder the bus.â€ What is unfortunate, is that this response was completely unnecessary (see below).
Q: But would the ends have even justified the means?
Nope. The City’s goal was stated at the Board to be the protection of the existing businesses in the South of Eastern Employment District. To do this, the City said it had a vision of a “modern business campus” for the property and the policies it adopted were to implement this vision. This vision was completely absent from the Final Report by staff and the resulting Official Plan Amendment. One of the problems of this concept, it was pointed out by SmartCentres market analyst (and not contradicted by the City’s expert), is that this concept would actually have the same impact as the SmartCentres application on the adjacent lands: Drive up the land value and drive out existing businesses.
Q: Which means?
If the City’s vision, enacted “as a political whim without one iota of substantiating planning analysis,” had prevailed it would have eventually screwed the district.
THE SMARTCENTRES APPLICATION:
Q: OK… so the City acted in bad faith… why doesn’t that mean that the application is approved?
All OMB hearings are hearings de novo. This means that regardless of who appealed what, or what municipal body did or did not approve what, both sides at the hearing have to start from scratch and re-present the case from square one. Prior approval is basically interesting trivia. This is, in part, why OMB hearings are incredibly expensive undertakings for big projects. (speculation is that this hearing cost SmartCentres well over $1million).
Q: So, what did SmartCentres want permission to build anyway?
The SmartCentres proposal was for 65,000 square metres of primarily retail floor area (including, likely, a Wal-Mart). Unlike similar suburban counterparts, the design of the project was much more suited to an urban centre. While there were still a significant number of parking spaces, they were concentrated in the middle of the site, with buildings along the street frontages mostly shielding them from view. Additionally, the buildings would be clad in different colours of bricks and feature varying roof-lines. Very unlike a comparable development in Mississauga or Vaughan, if only in terms of urban design.
Q: So what happened when the application was submitted?
The application triggered the requirement for the City to study the effects of the proposed development. This study took the City 22 months to prepare. One of the components of the study is an evaluation of whether the conversion, if approved, would destabilize the remainder of the industrial district. Destabilization was described by the City’s market analyst as “retail contagion,” whereby isolated retail developments do not stay isolated for long. Approving this development would put increasing land value pressures on the adjacent properties (at least) to seek their own retail conversion permissions because retail land is more valuable than industrial land. Approving the development would predictably lead to other properties terminating leases, not renewing leases, and “displacing price sensitive businesses that rely on proximity to the Downtown Core.”
Q: What about the market analyst for SmartCentres? What did he have to say?
Unfortunately, for SmartCentres, the Board found that the SmartCentres market analyst failed to investigate the possible negative impacts this application could have had on neighbouring properties and the employment district as a whole. Instead, they provided evidence that only described the benefits of the proposal to the city and the area. This wasn’t the test that the applicant had to satisfy; a fact that was not lost on the Board. “The responsibility rests with SmartCentres to unambiguously demonstrate that all of the tests have been satisfied,” the Board wrote.
Q: Which means?
Ultimately, the Board agreed with the City’s position regarding the application, and noted that “genies, once out of the bottle, are near impossible to recapture,” and denied the application.
In its decision, and in summary, the Board made some important observations. Firstly, the often characterization of retail jobs as “not real jobs” seemed to almost personally offend the Board. It scolded the “stigmatization” of retail jobs and reminded all that the type of job is not a planning matter, and, like it or not, “retail is economic development.”
Secondly, and more importantly, the Board openly shamed the City’s baseless politicizing of land use planning, how it ignored its professional planning staff, and its reactionary approach to unwanted development. That the City ultimately won in the end was merely coincidental to its position going in. If anything, the City should send SmartCentres a thank you note for doing its job for them. In doing so, the Board concluded that, while the City “maintains the right to regulate land use policy,” in doing so, its motivations must be bona fide. In doing so, the Board made the broad observation that “legitimacy of purpose” is fundamental to a proper planning exercise. And as such, the Board must review the genesis of municipal planning decisions, lest “municipal planning decisions be impervious to review and critical examination.”
This decision reinforced that land use planning, though ultimately a political decision, should be above petty politics. If the City Political Class ever wants to take ultimate control of its own land use planning destiny, this decision should be a strong wake up call that it needs to be smarter, more prepared, more proactive, and, frankly, more grown up.
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In order to have urban planners go on the record with brutal and honest opinions on such hot topics, Spacing has to leave the author’s name anonymous. The reason is simple: in most cases, the planners Spacing talks to are not allowed to speak publicly because their employer does not want controversial employees. Spacing has made sure that the author does not have any involvement with either side so that they have minimal bias when answering our questions. Our editors also comb the piece and challenge the planner(s) on specific things in order to make it as objective as possible.
photo by Jay Morrison