Some thoughts on 1960 Queen East winning at the OMB

Is there some word for something that’s both indulgent and predictably dull? If there is, it surely describes sitting through an OMB hearing for a day and a half out of sheer curiosity.

Last year, the Toronto and East York Community Council unanimously approved Reserve Investment’s proposed development at 1960-1962 Queen Street East, formerly the site of a Lick’s Burgers. (Hence the neighbourhood shorthand, where the project is simply “the Lick’s development.) I reported on the TEYCC meeting for OpenFile and spent the day live-tweeting the meeting. Out of a desire to see how the story ends more than anything, I decided I wanted to watch the OMB hearing.

Some background: the building in question is a six-storey, “mid-rise” development that City staff have explicitly said (both to me and to councillors) meets the city’s guidelines. At the OMB hearing, Anne McIlroy, whose firm helped write those guidelines said the Reserve building meets 90 or 95 percent of them. (Yes, McIlroy was retained by the developer. Whether you think this effects her credibility is up to you.)

But some people in the community were opposed. Vocally opposed. Vociferously opposed. So after the development was approved by council, they appealed it to the OMB and so there I was, in a stuffy room across the street from City Hall at the Sheraton Centre.

The hearing was tooth-achingly dull, if you were at all familiar with the matter: it largely amounted to relitigating most of the criticisms of the development that were heard at TEYCC, including but not limited to height, parking availability, and whether it would set a precedent.

What was interesting was the extent to which–and there’s no kind way to say this–the local opponents to the development harmed their own case. Several of the participants made basic factual errors about the development, having to be corrected about the shape of the building, how parking will be accommodated, and other facts that were easily accessible in City reports.

Perhaps most notable was the man (I’m not using names here because frankly I’m not in to this to embarrass people) who claimed he’d had a role in writing the mid-rise guidelines for the City, only to have Reserve’s lawyer walk him back since we’d already heard from McIlroy, who actually did write the guidelines. Better still, he spoke passionately about “urban cancer” and all the ills this development would cause despite admitting he didn’t know about the hearing until the night before.

This was on top of drama early on Tuesday over the attempt by the opposition to reschedule the hearing.

Again, I’m not trying to be cruel. If anything, the inept opposition was striking precisely because it had seemed far better organized and informed at TEYCC that at the OMB. If I wanted to be cruel I’d simply compare the opposition at the OMB to Reserve Properties’ team of lawyers and planners. But that would be unfair–you expect the developer’s deep pockets to buy good talent.

And to cap off this point (lest you think I’m still being horribly unfair to the residents) the member of the OMB leading the hearing delivered her decision only after advising residents to “do your research” and noting that coming to a hearing agreeing on the basic facts of the development “helps your case.”

And her decision was predictable–the appeal was denied and the development (after two years in various stages of permission-begging) can go forward.

The Beaches may have “lost” this battle (whether it was worth “winning” is a discussion for another time) but the political uproar around it motivated the local councillor to launch a “Visioning Study” which introduced new design guidelines that will make similar buildings substantially more difficult.

Developers, for their part, are moving on anyway. According to the Beach Metro News:

The recently adopted Beach Urban Design Guidelines (UDG), completed after months of community consultation and work by the city’s planning department and dozens of concerned Beach residents, is already facing its first two challenges, in the form of rezoning applications on the northwest and northeast corners of Queen and Woodbine.

Both applications are for six-storey condo buildings, with retail on the first floor and two floors of underground parking. Both are above the height limits in the UDG, and “neither of them comply with the recently adopted design guidelines,” according to Senior Planner Leontine Major.

Of course, this was predictable on two counts.

1) There was never going to be a developer who did more to comply with the city’s requirements than Reserve did. (Remember McIlroy’s 90-95% estimate, and the unanimous vote at TEYCC.) So almost by definition, the developments that came later would break the rules, especially after the rules were tightened to trip up future Reserve-style developments.

2) What developer, having watched Reserve get dragged to the OMB anyway, is going to start from a position of compliance in the Beaches? If they’re going to be forced to carry a vacant property through a full appeal no matter what, their opening bid is going to be just that: something they’ll have to be forced down from. It wouldn’t surprise me at this point if the developers simply take the city to the OMB after the 6-month waiting period is up.

I should stress here I have no inside knowledge of these two new development controversies at Woodbine and Queen. And whether I think developers should be able to throw down with the city at the OMB is another issue. My point is that this is an entirely predictable consequence of how the Licks’ fight played out.

I’d also point out here that this whole debacle should humble people who think that Toronto City Council sets anything as rigorous as “policies” when it comes to planning. We have aesthetic preferences that are put down on paper, and last exactly as long as it takes for the local ward Councillor to think their job might credibly be in danger. (That, less than a full year since the TEYCC vote, only a handful of people not paid to be there cared about the OMB hearing, should stiffen the spines of council but probably won’t.)

Talk about how the city “has to” defend its planning powers at the OMB can only proceed once we acknowledge the absurdity. 1960 Queen was unanimously approved by Community Council, and the chair of the committee (Gord Perks) explicitly got staff to comment on the quality of the planning. But, whoops, it turns out this development is only “good planning” if it’s never allowed to happen again without the city making it more difficult.

This has obvious implications for the Eglinton Avenue Study (which I’ve written about at Torontoist, here. As much as the Planning Department may want to expand the permissions along Eglinton so that developers can skip the zoning-planning-OMB application fiasco if they agree to play by the city’s rules, watching how this played out along Queen East I can’t help but be cynical about the chances of success.