Final arguments were recently made at the Ontario Municipal Board (OMB) about the proposed six-storey condo on Queen Street East at Woodbine. Residents are fighting to maintain the historic view of the Kew Beach Firehall from being lost to large condominium development. In four to six weeks the OMB will hand down its ruling. We all hope that the Urban Design Guidelines (which are only guidelines and not law) are respected. Many fear, however, the same outcome as the loss of the Glen Davis Ravine: even though the facts and law clearly favoured preservation of the ravine, the OMB sided in complete favour of the developer.
Why does this happen?
It happens because developers enjoy enormous advantages that create an uneven playing field.
Imagine if a Canada Revenue Agency agent sat down with you and asked: How much tax do you feel like paying this year?” Wouldn’t that be shocking? After all, we all pay taxes based on a transparent scale related to our income.
Not developers. Under Section 37 of the Planning Act, (called a “slush fund” by critics), a developer sits down with the local councillor. They have a conversation about “community benefits”. In exchange for a community benefit, a developer is granted increases in height or density beyond existing zoning and policy allowances. The cash is supposed to be used to benefit a neighbourhood with improvements to infrastructure, such as lighting, or streetscape. But there is no strict definition of what” public good” or “benefit” means.
In the end, developers generally get their oversized developments approved. The councillor can negotiate deals that may benefit a small group of people in the ward, being driven by immediate political considerations. In the absence of real transparency or meaningful public participation, they both gain. There is no set formula for determining the value of Section 37 contributions, but generally it may be between 10 and 30 per cent of the value of the part of the development that exceeds zoning restrictions.
Once approved by city council – which will rubberstamp approval and cannot possible review and weigh in all the deals being made by councillors – the residents are by and large shut out of the process. If not approved, the developer can possibly appeal to the OMB, which is an appointed, unelected body that historically favours developers.
Every Province in Canada has abolished this anachronistic body except Ontario.
The other advantages that developers enjoy are deep pockets and legal resources. Residents’ groups must form on the fly, organize, fundraise, get legal help, source and hire experts, and learn the rules fast. Resident groups tend to be underfunded and under-resourced. The work load is heavy and many burn out quickly. The system unofficially holds that private property rights of developers are sacrosanct. Residents who advocate for responsible development are painted as NIMBYs and anti-progressive.
Here in the Beach, for example, the Greater Beach Neighborhood Association has done the fundraising and the heavy lifting at the recent OMB hearing on the proposed development at the northeast corner of Queen Street East and Woodbine Avenue, which would not fully preserve the view of the Firehall’s clock tower as required in the Beach Urban Design Guidelines. While the city supported its guidelines at the OMB hearing, it again fell to the residents to raise money, retain legal counsel, and take up the battle
That is part of the uneven playing field. In this OMB hearing, Beach residents, however, received one very generous contribution, namely, the pro bono services of the law firm Wood Bull LLP. This exceptional law firm has been untiring in their work for our community and we owe them an enormous debt of gratitude.
Digging deeper can be more surprising. Last year I volunteered my time to assist an investigative journalist with research about the Regent’s Park Condominium Revitalization next door to us. Title searches revealed that Councillor Pam McConnell, and some condo board members had snatched up prime condos. The developer purchased another 14 condos using numbered companies. This occurred in a development that was heavily subsidized with public tax dollars — to the tune of (estimated) $200 million.
Why would developers use numbered companies to buy their own units? Further, why can’t section 37 money be completely transparent? And why can’t there be a level playing field to ensure community input and concerns have real consideration?
Clearly the system is broken from beginning to end and needs a serious overhaul to create real transparency and procedural fairness to those of us who live here and care about our community. In the interim, let’s hope that the OMB will use its discretion to uphold the Urban Design Guidelines to preserve Queen Street East as part of our heritage.