FEATURE: The OMB and Norman Street: an inside look

cranes by david seaborn1. Where it all started

by Eric Darwin

Readers with a high pain threshold will recall the very controversial and adversarial Preston-Carling plan the City developed in 2013. It recognized the ongoing land stampede by developers to acquire lands along the O-Train Trillium corridor and the intersection of Preston and Carling. Some parcels of land were upzoned several times, sometimes while buildings were still under development.

Local residents in the Little Italy neighbourhood felt patronized, pushed, and ignored. So too, I suspect, did some city planning staff who saw years of community contact goodwill evaporate as senior managers and Toronto consultants were parachuted in to push through more, more, more.

At the end, the City summed up the plan, branding it a “new southern gateway” to the downtown. It called for 55-storey buildings close to the Carling transit station, descending downward slightly as one gets further away. The Claridge ICON building, 48 storeys, is the first very tall building underway, and three 20- to 30-storey towers on Champagne Avenue nearby are either finished or underway.

One salient site rezoning in the Preston-Carling issue resonated throughout the city and got lots of media attention. The line of stub end streets that run east off Preston to the railway tracks are chock-a-block with small homes, usually two storeys, on small 25 foot lots. The affordability of these houses, plus the safe streets, have attracted families with children looking to live quietly in the city. But one side of Norman Street was bought up by developers, who proposed, at various times, an 18-storey, a 14-storey, or a nine-storey apartment building. All the adjacent houses are two storeys.

Residents tried working with the city to improve the plan. The major problems included the location of the front entrance at the very end of the stub end street. There was no provision for cars, delivery vans, ParaTranspo, taxis or any other vehicles to turn around. The city had originally proposed nine-storey mid-rise zoning for every stub end street, but backed down when challenged by the community to prove that the buildings were accessible. Except for Taggart’s 95 Norman. That building just had to go ahead.

2. Save Little Italy

Pictured here is former councillor Diane Holmes (at left) with members of Save Little Italy. At far right is Jamie Liew, who was the group’s lawyer at the OMB.

Pictured here is former councillor Diane Holmes (at left) with members of Save Little Italy. At far right is Jamie Liew, who was the group’s lawyer at the OMB.

A citizens’ group, called Save Little Italy, part of the Dalhousie Community Association, appealed the plan to the Ontario Municipal Board, which can review municipal decisions.

Appeals are expensive. Lawyers and certified planners and engineers are required to give “professional opinions.” Save Little Italy had teas, bento box sales, comedy nights, beer chug-a-lugs, t-shirt sales, etc., and raised $35,000. The first problem was finding those professionals to advise us and take our side. They are scarcer than the proverbial hen’s teeth.

Basically, Ottawa is a small town, and every consultant has worked or wants to work with developers or the city itself. They don’t view assignments with “troublemakers” as worthwhile.

3. The hearing (part one)

The hearing itself took place in the Heritage Building wing of City Hall.

Our lawyer had one side of the central microphone stand. She was backed up by our hired planner, our transportation expert, and a few local residents. The other side of the microphone stand held the City and developer’s side, sitting intermingled, and chatting amongst themselves in their black suits.

At the introduction of the parties, our lead lawyer, working pro bono, revealed it was her first time before the OMB. This evoked gales of laughter from the city and developer sides and considerable smirking from the chair. It played out like a bad TV cartoon with one group of children pointing their fingers at the “out” group and calling insults. It was a bizarre start to the hearing.

The City and developer wanted their architect to be first on the stand to introduce the proposed building. In a totally unbiased way, they claimed. We objected.

Days later, when it came time for the architect to give his professional opinion, the city and developer made a big deal of how he was just going to give the same unbiased intro that the unenlightened folks on our side had objected to.

After those remarks, the architect proceeded to give extensive praise to his wonderful project; praise that was so fulsome it was embarrassing. But unbiased.

At the OMB, the chairman hears evidence from experts. These experts swear an oath to give their professional opinion as the truth, the whole truth, and nothing but the truth. That the expert is the same person who created the material justifying the development in the first place, or is in the employ of the developer and being paid to give his or her evidence, isn’t supposed to influence them one whit. Totally unbiased.

There are a series of measures to establish one’s expertise. This includes university credentials, membership in professional associations, years of experience, being on a city listing, or having been recognized by the OMB in previous cases. This latter point gave rise to several witnesses being introduced with, “You remember Joe from the XYZ case argued last year or the ABC case back in ‘09.” All very collegial and chummy.

Our transportation witness had a degree in planning and international experience. Naturally, our opponents mocked his lack of Ottawa experience. More astoundingly, as soon as he introduced a drawing that showed road dimensions, they objected vociferously that, as he wasn’t a professional engineer, he could not introduce or give evidence to a drawing, even if provided by a municipality itself.

Their transportation planner, however, having a veritable alphabet of professional designations, spent an enormous amount of time on access to the garage, which at first puzzled us, as we had no issues with the garage access. He justified his traffic counts as being from standard reference materials derived from studies in dozens of cities. He didn’t bother to point out that most of the studies are from the US, most are suburban and exurban, most from areas with transit share of less than one percent, and of dubious to no relevance to a central Ottawa site next to a transit station with high modal split.

Apparently no one has bothered to calibrate the models to Canadian cities, let alone Ottawa. But, certifiably, expert.

4. The hearing (part two)

One of our arguments was that the city designated 10 stub end streets running off Preston for low rise housing, i.e., the two-storey houses there now and, with intensification, allowing for four floors. The only exception was Taggart’s proposal.

The City and developer turned this argument on its head, arguing that the real exception was that the city even recognized the low-rise housing at all, and that mid-rise and high-rise apartments are the norm in areas close to downtown. If you’re in a two-storey Centretown house, count your blessings, and your days, because you won’t last with that attitude at City Hall, with the blessing of the OMB.

Some cynics in our community association argued previously that the low-rise designations in the plan were tokens, sacrificial zones doomed to be overrun with high rises from all the surrounding zones. Designed to fail. It was disconcerting to have that view confirmed by the City at the hearing.

When we appealed the plan, we had a wide number of things to object to. It became too onerous and expensive to appeal them all, so it was necessary to focus the argument on key points.

Before the hearing, the City came to us and offered settlements on several items. We negotiated significant concessions and improvements to the plan. We were told these were “without prejudice” and the settlements would not be used at the OMB.

However, they were, with both the developer and City arguing that what came out of the settlements contradicted our positions on the remaining issues. Of course, they didn’t review the significant concessions we did win that were consistent. We didn’t spend time on them either, because it would complicate the arguments. Moral: don’t trust anyone.

5. Moments of humour

Throughout the hearing, I was surprised at the lengthy, boring testimony, with day after day of “Turn to binder 4, tab 77, typed page 23 but handwritten page number 26, point C, ii, point four, third line down, last phrase, after the comma…”

The only saving graces were the number of times the lawyers or witnesses dropped the binders, with pages spilling out across the floor, or the witness that called bullet points “bulletin points.” Or maybe that is non-violent City-speak.

Actually, there were other humorous moments too. We had big snowfalls during the hearing, and snow continually slid down off the sloped roofs of the historic old teachers college building. Each slide startled and disconcerted the Toronto lawyer, who will probably spend the rest of her life telling people about the huge snowfalls in Ottawa and avalanches from buildings.

A key city witness mistook a pee break for a “go home” break, and there was an awkward recess and frantic search to retrieve him.

The pipes down the hall by the mayor’s office broke and flooded the stairwell, setting off fire alarms, and the building had to be evacuated, but a number of the folks in suits had left their winter duds in their cars in the garages or elsewhere in the building and it was snowing like mad.

6. Can you fight City Hall?

2013-03-28-04-03-05-DSC_0500-resizedAt the OMB, it is hard to “out-planner” the entire City planning department, or the developers’ hired planners, as their resources are greater and their depth of knowledge is always deeper.

Similarly, we didn’t have a Toronto lawyer who specializes in OMB and development issues. So we put some effort into providing lay witnesses who could offer simple truths.

Our more nimble and articulate witnesses were shut down by ignoring them and offering minimal cross examination. Less chance to talk, that way. But the local residents of the street shone brightly.

When one gave evidence of the difficulty getting an ambulance to take his anaphylactic child to the hospital, everyone was leaning forward to hear the story. It was the most movement I saw the chair make in three weeks.

Some of the City and developer witnesses went on and on about issues that were not issues to us. We didn’t cross-examine that testimony because it wasn’t relevant to our complaint. Nonetheless, in the decision the chair complained we didn’t cross examine that testimony.

The City, throughout the original planning exercise, claimed the Taggart property was vacant. It wasn’t, and isn’t. We pointed out then, in writing, that people were living in those houses and businesses were in the commercial properties.

The City refused to change the description as “vacant.” They repeated that claim to the planning committee, and then to council.

Then, at the OMB appeal, they again characterized the lot as “vacant.” There must be a reason for this, but I’m not sure what it could be. So, at the hearing, we produced photographic evidence and testimony from neighbours that the houses were occupied, which was even then contested, though the landlord – Taggart – was sitting in the hearing room and collecting rent on the properties. It added a surreal element to the process.

The OMB hearing wasn’t like Perry Mason or TV show trials. It was much pettier. Scoring points came from discovering a witness hadn’t ridden the O-Train recently, so how could he possibly understand how transit-oriented this building was?

Or claiming blighting land uses in the area included not just car repair garages, but their conversion to architects’ offices. Or objecting to the use of a word in a casual way that isn’t strictly to the definition the City gives it in some obscure appendix residing in Dante’s seventh circle. Although, in those cases, I suspect the interruption was more aimed at breaking up a flow of testimony or throwing someone off track rather than being strictly on a point of law or clarity.

7. How it all turned out

A month after the hearing, the decision came down from the chair.

We lost, on all counts.

What about our argument that the front door of the building is inaccessible to ParaTranspo, FedEx, UPS, and other vehicles unless they use the sidewalks or homeowners’ property to turn around? The chair put his faith in the transportation consultants, who stated that the proposal will not result in undue transportation impacts.

What about the nine-storey building being the only one on 10 stub end streets, making it exceptional? Nope, the exception is that any low- rise zoning is there at all.

What about the 695- square-foot amenity space on the roof? Does it constitute a 10th floor? It’s a non-countable projection, says the OMB.

My guess is that, after this, no builder will put a meeting room, exercise room, or party room within the zoned-for or approved floor space within the legally developable height limit, but will always put it in an extra floor (err, sorry, projection) on the roof, provided it is less than 200 square metres (2,100 square feet).

The OMB process wasn’t without its good points. Like all disasters, it was an educational experience. It wasn’t exactly a bonding exercise with the city planning department, more like a bondage exercise, with local residents on the rack. The City, after all, gets to write up the rules, tell the story of the process and spin it all so it looks legit, glossing over the machinations and missing terms of references.

It writes the plan itself, and I suspect somewhere in a cubicle some planner has a list of weasel words he is obliged to sprinkle through every document, so that developers and big bosses can later point to those particular words and say “see, the plan envisioned this [insert latest travesty here].”

On the positive side, a bunch of neighbours became better friends and allies. We all became better educated about the treacherous planning process and learned that nothing in a plan actually means what it appears to mean. We had a lot of shared beer nights and food at local restaurants in Little Italy.

And I would recommend the egg salad wrap in the City Hall cafeteria.

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