Contested development: Many question whether the Ontario Municipal Board should be allowed to continue wielding its unelected power over a city crunched for resources.

thestar.com
By Jennifer Pagliaro
February 17, 2017

The house on the corner is the last holdout amidst rampant condo development.

Surrounded by cranes and the constant crash of heavy machinery from the mud pit that is now right next door, the two-storey red-brick home has stood at the corner of Broadway and Redpath Aves., northeast of the busy Yonge St. and Eglinton Ave. intersection, since at least 1931.

Past the swinging wrought-iron gate and double wooden doors, its residents are private people who have lived in this Midtown neighbourhood for more than five decades.

The mud pit on the southeast block will soon be home to two 34-storey condominium towers, which the developer pushed to build in 2012. The developer bought and then tore down two homes just to the east of the house on the corner and a three-storey apartment building to its south.

But the corner lot was not for sale. The long-time owner would not be moved.

“Build with my blessing,” she told the developer.

The city strongly rejected the developer’s plan, originally submitted as two 38-storey towers including an eight-storey podium. Staff said it didn’t conform to city plans and policies, was an inappropriate overdevelopment of the site and would set an unwelcome precedent in the lower-rise community set back from the Yonge-Eglinton intersection.

But the developer, Pemberton Group, appealed to the Ontario Municipal Board, the most powerful body of its kind in North America, which can overrule the city on most land-use and planning disputes.

And the OMB approved the development at 34 storeys in a decision made solely by long-serving and recently retired member Wilson Lee. Lee concluded the buildings would contribute to a “vibrant” and “complete” community.
Now, the house on the corner is about to be boxed in, with the OMB decision opening the door to similarly scaled developments in the surrounding neighbourhood.

Following that 2013 decision, there have been proposals for another seven towers within a 300-metre radius - all submitted at a minimum of 34 storeys. One application just west on Broadway Ave. is for two 45-storey towers, and another, on Roehampton Ave., is to graft a new 36-storey rental apartment building onto an existing rental building.

All told, if built as proposed, the developments would mean the addition of nearly 3,000 units in the area and more than 4,700 residents.

City staff have raised serious concerns about most of the pending applications - that they represent substantial overdevelopment, are poorly designed and that there is a lack of available community services to support new residents.

All but one of those applications are now headed to the OMB.

Today, the Yonge Eglinton Centre - less than one square kilometre covering primarily the areas immediately to the northeast and just southeast of the major intersection - is the most densely populated centre in the city.

That residential growth has been concentrated here is no accident. The province mandated what are called urban growth centres like this across the city to support intensification and prevent sprawl.

But with nearly 10,000 residential units in the pipeline in the Yonge-Eglinton area alone - more than is proposed in the entire city of Boston - there are growing concerns ballooning neighbourhoods like this one, and parts of downtown and North York, are buckling under that growth.

Planners, local councillors and those living in these quickly changing communities say the city is at a tipping point, with schools and child care already over capacity, a lack of community and public space, daily traffic jams, crowded subway platforms and concerns hard infrastructure like sewers can’t keep pace without new investment.

The Yonge-Eglinton Centre is the most dense centre in the city, concentrated just northeast and southeast of the busy intersection, having already grown well beyond the targets set by the province.

Though the OMB deals with one building application at a time through appeals, their cumulative decisions have proven to overwhelm neighbourhoods, with the all-powerful body effectively planning communities - what gets built and where. Those decisions are frequently made against the advice of professional staff and the will of an elected council.

This is the first in a three-part series about what happens when the OMB is in charge, the challenge it has created in managing unprecedented growth and who is responsible.

These are stories that try to see past the common criticism of NIMBYism - the “not in my backyard” attitude that can attempt to hinder reasonable growth, but distracts from the issues of lacking infrastructure currently facing the city and the OMB's responsibility in that shortfall.

Right now, the province is considering reforms to the quasi-judicial OMB - which hasn’t seen significant change in more than a decade. So, this series will also look at possible solutions, which could significantly alter the future of how the city is planned.

In pushing back against the development at 99 Broadway Ave., city staff weren’t saying nothing should be built there, but that what was proposed was unreasonable in the context of the surrounding neighbourhood and out of step with city plans.

City bylaws and policies set out how neighbourhoods should grow, including a principle that the tallest and densest towers should be built on the corners of major intersections, especially where there is rapid transit.

The city’s zoning bylaws permit only buildings of certain heights and densities, most below what even city staff would agree is reasonable. That forces developers to apply to the city to build above those limits.

The Ontario Railway and Municipal Board was created in 1906 to oversee municipal finances and the expanding railway systems between and within cities. The “railway” title was dropped in 1932.

There are also neighbourhood-specific studies and detailed guidelines for things like tall buildings - how far apart towers should be separated, how set back from the street and so on.

What is the OMB?
The vast majority of new applications are recommended for approval by staff and ultimately get the green light at council.

But the 99 Broadway application did not conform to the city’s plans.

City staff expected, in keeping with city policies, that development would be scaled back in both height and density from the Yonge-Eglinton intersection.

To put it in context, just after the application for 99 Broadway was submitted, city staff backed a 30-storey development on Eglinton Ave. at Redpath Ave., and later a 58-storey condo on the northeast corner of the Yonge-Eglinton intersection with support from the community and in keeping with city plans for where the tallest and densest towers should be built.

But by approving two towers at 34-storeys at 99 Broadway, the OMB allowed city plans - many of which required years of study and were signed off on by the province and the OMB - to be ignored.

Local Councillor Josh Matlow (Ward 22 St. Paul’s) said it set an untenable precedent in the neighbourhood.

“Now they’ve given a signal to developers who want to build anything,” Matlow said, pointing out the influx of new proposals for redevelopment as he toured a reporter through the area.

“We should be building communities and neighbourhoods that support a great quality of life rather than a focus on just building condos. And then you break through the whole rhetorical debate between, ‘Are you pro-condos or anti-condos?’ . . . That’s been leading the discussion for far too long,” he said. “It’s about, how do condos fit into the plan to build a community?’ rather than, how does the community deal with the fact that there’s more condos?’”

The city’s chief planner, Jennifer Keesmaat, told council in December that staff are more frequently having to push back against new applications in the Yonge-Eglinton area because of unresolved concerns about the infrastructure required to accommodate that kind of density.

Of the dozen schools in the surrounding vicinity of the Yonge Eglinton Centre, within both the Toronto District School Board and Toronto Catholic District School Board, nearly every single one is over capacity, some at more than 120 per cent, with the number of families with children moving into the area steadily increasing.

Already, prospective condo buyers in the Yonge-Eglinton area have been greeted with signs posted by the Toronto District School Board that warn: “Due to residential growth, sufficient accommodation may not be available for all students.”

Outside condos for sale in the Yonge-Eglinton area, new and potential residents are warned of schools being already over capacity with signs like this one posted in 2016.

There are similar pressures on child-care spaces, with little to no vacancies in the area, as well as strains on community and open space.

The North Toronto Memorial Community Centre, the only facility of its kind in the area, is scheduled to temporarily close for needed maintenance this fall until the end of 2018.

The OMB has typically been unmoved by these issues.

The board is ultimately guided by the province’s Growth Plan - a binding 2006 document that was meant to prevent urban sprawl, protect green space and mandate intensification in urban growth centres.

The Growth Plan originally set targets for the number of people and jobs the city should accommodate by 2031, and was recently updated with 2041 targets.

The most recent city data shows of the 400,000 new units anticipated by 2041, almost 200,000 had already been built in the 14-year period between 2001 and 2015.

While city staff say based on 2016 census data the city is on track to meet updated population targets for 2041, density in some specific areas have far exceeded the targets set out by the province.

Though the plan set a density target of 400 people and jobs per hectare (or 10,000 square metres) in the Yonge-Eglinton and other centres by 2031, Yonge-Eglinton surpassed that mark in 2006 - the year the Growth Plan came into force.

But the plan does not set out a maximum density, or ceiling on that growth. Whatever density is achieved above and beyond the current target is considered the new floor - a reality specifically cited by Lee, the OMB member, in approving the 99 Broadway application.

Matlow, who as an environmental activist fought to protect the Oak Ridges Moraine, said he strongly supports the intentions of the Growth Plan to prevent sprawl and protect green space.

“But you can’t then go to the other extreme where you’re basically sprawling upward without supporting the quality of life on the ground,” he said. The councillor pushed for the city’s “Midtown in Focus” study that is underway to look at available infrastructure.

“What this is all about is trying to change the narrative from always reacting to condo proposals to having substantive data in front of us as to what kind of infrastructure priorities we have . . . When will the toilets not flush anymore? When will the lights go out? What kind of transit do we need?”

For city planners, the ultimate goal is livability. Unlike developers, planners say they’re looking well beyond immediate market forces - at a 30-year horizon.

“We are trying to look at issues comprehensively around growth,” said Gregg Lintern, the city’s director of community planning for the Toronto and East York district.

“That means every 20,000 or 30,000 people you’ve got a new community centre coming in or a daycare or you’re sizing the pipes right or you’re building the transportation system.”

The challenge, Lintern says, is the way in which OMB decisions can be “context making” - a single proposal is submitted just above what the city thinks is an acceptable height and the OMB finds two additional storeys is reasonable. Then the next application comes along and a developer wants two more storeys and that is seen to be generally within the acceptable range.

“That happens four times, you’ve got a new context,” Lintern said. “And the incrementalism that sometimes, not all the time, comes with some of these decisions threatens, I think, our ability to achieve managed growth.”

Without sticking to a comprehensive plan, the risk, Lintern says, is this: “You wake up with a much-less livable situation, and that’s not good planning.”

Residents’ groups representing Yonge-Eglinton neighbourhoods say they understand growth has to take place and aren’t NIMBYs opposing new development on principle.

“I think the biggest concern that we have is we’re going to lose the quality of life in the area,” resident Andy Gort, president of the South Eglinton Ratepayers’ and Residents’ Association, told the Star.

Gort recently stood in front of a group of about 70 residents who had gathered in the gym of a local church over concerns of an application for a 25- and 20-storey condo development on Brownlow Ave. The residents wanted to know how they could fight back. They dropped $20 bills with volunteers as they exited, committing to a fund to hire lawyers and planners to defend their interests against high-priced development teams at the OMB.

Gort told the crowd not to expect a townhouse development - that didn’t fit either with what already exists in the neighbourhood. But he said the residents’ association would fight for a more modest midrise development.

“We cared about the height, but that was not the main issue,” he said. “Once everything’s done, how livable is the area still?”

Back at the house on the corner, life has already been dramatically altered.

By 6 p.m., the stream of cars is constant as the grown daughter of the owner of the house on the corner of Broadway and Redpath stands at the door. Their friends and neighbours have long gone. She talks about waiting for multiple trains until she can get on at Eglinton station. She worries about burst pipes and aging infrastructure that may not be able to keep up with new development. She’s not opposed to change, but says the neighbourhood must remain livable.

“The only way a city can actually grow is to be progressive so that they actually can move forward and be the city that it wants to be. But in order to do so, you also have to have a plan in place.”

Without it, she says, “Everybody loses.”

The growth challenge extends beyond the Yonge-Eglinton area.

When the OMB is mentioned at city hall, many veteran councillors point north. You have to look at North York, they say, to understand what can go wrong.

Today, North York Centre is unrecognizable from the city’s vision for a mix of commercial, residential and retail space.

North York Centre was conceived in the 1980s to be a mixed use community - a new “downtown” - on top of what is now two subway lines. Today, there is a struggle to form even a business improvement area in neighbourhoods overwhelmed with condo development.

Though the city designated the southern half of the centre largely for office space, successful applications and appeals to the OMB for condo developments have overwhelmed those sites, with some 8,000 units either built or proposed in the last five years.

Because of that residential growth, the city recently reported the ratio of jobs to people in North York has declined to below 2006 levels. And like Yonge-Eglinton, North York Centre has already surpassed the 2041 density targets for people and jobs set out by the province.

Local Councillor John Filion (Ward 23 Willowdale) said the vision of a complete community in the area has failed.

The tale of North York
“When the city amalgamated, as much as there was a lot of awful things about that, at least there was an attempt to, ‘Let’s create this official plan and let’s try to bring some sense to this. Let’s try to create some relationship between the amount of new development and transportation, social infrastructure. Let’s designate certain areas for this, certain areas to that,’ more intelligently than they had been previously,” he said.

“And as imperfect as that was, it at least sort of gave you, if that had been followed, it gave you sort of a fighting chance. But it hasn’t been followed because of the Ontario Municipal Board.”

Joe Nanos, the city’s director of community planning in North York, agreed OMB decisions can “erode” the city’s plans.

“Maybe one decision may not have an impact,” he said. “But when you start looking at cumulative decisions both by city council or the OMB, that will set a direction or a trend in terms of what the end result will be.”

Just 4 per cent of development applications end up at the OMB, a figure several councillors and planners say does not acknowledge the constant “threat of the OMB.”

Every application becomes a negotiation between the developer, lawyers, staff and the local councillor. If that negotiation breaks down, the developer can always appeal to the OMB with little regard for the decisions made by council or the position of city staff.

The city is at a disadvantage with a lack of resources to deal with both new applications and appeals.

In Yonge-Eglinton, for example, there are two planners to deal with new applications who are also responsible for defending those files at the OMB, if they are appealed. In Boston, where the applications are fewer, there are 14 planners.

The number of OMB hearings in Toronto has increased 45 per cent since 2013, with 213 total hearings in 2016 - representing work totalling 615 days. A majority of those hearings are for minor changes to existing buildings.

The pressure of keeping up with the work has forced staff to prioritize the more complex files over fights they know they can’t win at the OMB, and has seen a trend toward more settlements with developers, councillors say. That reality was confirmed by planning staff not authorized to speak on the record.

“If you speak with some of our best planners they’ll acknowledge that they’re not providing the advice that perhaps they would have liked to give. They’re giving the advice that they feel like they’ve got to give that might pass the board. But that’s not a good way to plan a city,” Matlow said.

With the condo boom continuing in places like downtown’s King-Spadina neighbourhood - which has grown from 945 residents to 19,000 in the last two decades - that pressure on planners to keep up has only increased.

Local Councillor Joe Cressy (Ward 20 Trinity-Spadina) recently spelled out the numbers at a meeting, saying his area had 25 active appeals totaling more than 1,000 storeys of development.

“That’s five and a half CN Towers in Ward 20 alone.”

At a community meeting on the third floor of the Chelsea Hotel at Gerrard and Yonge Sts. in September, a group of downtown residents who are no strangers to development have had enough.

They’ve come to hear from city staff and a developer’s team about a plan to build an 80-storey tower on Elm St., proposed to be built on top of a heritage building on a very small lot on a street with a storied history.

Lucy Brennan asks a question during a public meeting about a proposed 80-storey condo at 8 Elm St. that drew almost 100 residents. The proposal has been appealed to the OMB.

When residents hear plans to turn part of the heritage building into a loading bay for garbage trucks so narrow it will need a rotating platform to make pick-up possible, there is laughter.

“If ever there was a blasphemy put on our city, I think it’s this tower,” said local resident William Stratas.
It’s a sentiment backed by local Councillor Kristyn Wong-Tam (Ward 27 Toronto Centre-Rosedale).

“I don’t recall any other application, I know there’s not another application in Ward 27, where we’ve seen incredible density proposed by a developer,” she said. “How much density is too much density and where is that density appropriate? . . . I would think that the application’s not anywhere close to being acceptable.”

Staff wrote a strong refusal of the application that month.

The developer recently appealed to the OMB.

As he walked amongst the growing number of towers in his North York ward, Councillor Filion says few residents realize who’s really in control of growth and ultimately responsible for planning the city.

At community meetings, he now asks residents whether they’ve heard of the OMB. Some have. He then asks: “Can you name one member?”

“And nobody can ever name a member,” he said. To which he replies:

“Well, the interesting thing is, those people have more power than I do . . . They’re the ones who make all the final decisions, not me, not the person you elected.”