OMB debrief

The Ontario Municipal Board hearing for the “109OZ” proposal ran from 5 to 15 November 2013 — eight business days because Remembrance Day interposed.

The Applicant for the “109OZ” proposal had appealed on the grounds that the City had failed to decide on the proposal within the statutory 120 day deadline (the appeal was about 150 days after the application; everyone knows that 120 days is too little for the City to carry out other legally mandated duties, so it is customary to wait over a year before this kind of appeal).

City Council had directed that any settlement would have to include all parties to the case: the OCA, the City, and the Appellant; and that the City would remain in opposition unless there was a settlement.

The Appellant had advanced certain proposals that, in the view of the OCA Negotiation Steering Committee, did not adequately respond to the very strong community mandate to Keep Ossington Lowrise — and to conserve Ossington’s great historic character, juice its vibrant business community, respect the adjacent residents, and protect local schoolchildren, pedestrians, and cyclists.

The OCA advanced to the Appellant a proposal that the Steering Committee regarded as going a long way for these goals, while also including various creative out-of-the-box features that (though profitable for developers and good for communities) are blocked by various hamhanded City regulations and are therefore unattainable in circumstances outside an OMB settlement. It got zero traction — which did not surprise me, inasmuch as the Appellant seems to have been fixated on a six storey building from the start.

The adjudicating OMB Member was Jason Chee-Hing (who had in 2011 approved the settlement at 41 Ossington).

The order of proceedings went: Appellant calls their witnesses; City calls theirs; OCA calls ours; closing arguments in that order with Appellant getting the last word.

Appellant was represented by David Bronskill and called as witnesses J Craig Hunter (a planner), Anne McIlroy (an urban designer who oversaw the production of the famous /Avenues and Mid-rise Buildings Study/), David Bouwsma (who uses a CAD program to make pictures of where a hypothetical building would cast shadows on various days and times), and Alun Owen (who counts cars and pedestrians crossing various places at various times, snaps pictures of trucks making tight turns makes speculative estimates of when people would use cars and trucks for a hypothetical building, and uses a CAD program to make pictures of vehicles of various sizes making tight turns).

City was represented by Amanda Hill and called as witnesses Franco Romano (an independent outside planner) and Ran Chen (an urban designer from City Planning).

OCA was represented by Charles Campbell and called as witnesses Terry Mills (a planner who wrote the /Ossington Avenue High Street Development Review/, Arris Strategy Studios), Thomas Rees (City Planning), Olga Ferreira (our neighbour on Givins), and Jessica Wilson (OCA President).

A few Participants also spoke: Penny Carter (our neighbour on Argyle Place), the Coalition of Residents’ and Ratepayers’ Associations (incarnated in Eileen Denny, CORRA Vice Chair), and [***].

The Appellant took up the first four days. The City called its witnesses on Tuesday and Wednesday of the second week; Wednesday morning was set aside for Participants. OCA called witnesses on Thursday. Closing arguments were presented on Friday the 15th.

Beyond these sparse generalities, an immense amount of detail remains to be reported. I confine myself to illustrative anecdotes, the flow of procedural skulduggery, amusing zings, and potentially important moments.

Bronskill’s opening statement was intended to suggest that we are nuts and should be ignored while City and Appellant work things out responsibly.

The first witnesses, Craig Hunter and Anne McIlroy, generally acknowledged that the street has distinctive character in large part contributed by the predominance of two- and three-storey heritage potential buildings. Hunter also acknowledged that the buildings across the street were unlikely to be demolished any time soon. McIlroy, who recounted how miserable the apartments of her hip youth were by comparison with today’s more advanced apartments, was more optimistic that they would be demolished soon.

Bouwsma’s primary contribution was the concept of a ‘shadow increment’ depicted as a bright yellow patch and constituted by the difference between the proposed building and the mereological sum of (i) an as-of-right (but, as Amanda Hill pointed out, Site Plan Approval-unfriendly) “donut” building and (ii) the angular plane envelope described in City Planning’s problematic May 18 rejection report. Campbell exposed Bouwsma’s qualification to pronounce only on what a certain shadow would be and not on whether that shadow would be OK.

Owen’s testimony was notable for its neglect to assess the traffic impacts of development of all /Area 2/ at the scale proposed. Owen thought that was OK because the traffic isn’t too high yet; when the building where the traffic is too high gets proposed, then it will be turned back. Needless to say, the impacts Owen considered were only incremental impacts, and he proposed no absolute threshold. Also amusing was the revelation that Owen’s car counters had been snoozing on the job.

At this point, late Friday afternoon, the procedural skulduggery — not entirely unexpected — rolled out. The Appellant had changed the proposal! The new one made certain inconsequential modifications to the height and massing and gave City Urban Design extensive control over the facade at Site Plan Approval! Now suddenly it is OK with Romano and Chen!

(Chen, no surprise perhaps. But Romano? His witness statement had trashed the height and massing as grossly out of scale. Drop the height by 7% and the massing by 0.5% and now its OK?)

The big tricksy plan to isolate the community is rolling out! Oh noes! What are we gonna do?

Two things: ensure that the direction of Council to oppose the proposal absent any settlement would be respected; ensure that we would bring to the stand Thomas Rees, City Planning’s author of the Ossington Planning Study and proposed Area Specific Official Plan Amendment.

Tuesday morning was taken up with procedural issues: the new plans were presented and Campbell requested (a) an adjournment and (b) that Thomas Rees would be subpoenaed as our witness. The adjournment was refused but the addition of Rees was granted.

Hill also asked some perfunctory questions of Romano and Chen.

Tuesday afternoon, Campbell cross-examined Romano. Romano acknowledged that the new proposal was not consequentially different from the old and that he thought the old proposal was grossly out of scale with the ‘existing context’ — the buildings that are there now. The new proposal is OK, however — because it is in line with the ‘planned context’, which emerged after he filed his witness statement. Namely, the proposed OPA. But the OPA limits to five storeys in /Area 2/? Yeah well six, five, what’s the difference!

My impression was that Romano’s line of reasoning was the object of considerable puzzlement.

I wasn’t there on Wednesday. Neither was Romano, who had booked a trip out of the country starting Wednesday for the rest of the week. My recollection is that Mr Chee-Hing found that decision somewhat anomalous.

Thursday Terry Mills was back on the stand (apparently Campbell had put Mills in chief on Wednesday afternoon), under cross by Bronskill. Mills’s vision of a below 18m building was getting a lot of traction, as were Mills’s concerns about the capacity of the laneway.

Olga Ferreira gave a vivid and clever testimony about the centrality to the community of the Givins vegetable gardens, the constraints on the laneway, and the natural concerns about backyard amenity with 40-some balconies more or less across the street.

Tom Rees kicked major butt. He was unflappable on the importance of preserving Ossington’s character and heritage, on the incompatibility of a six-storey building with that aim, and on the fact that /Mixed-Use Areas/ are not an OP focus for intensification.

Jessica Wilson also kicked major butt. Bronskill attempted to show her up as an ingnant amateur planning fancier, but got outsmarted: on the issue of where the OP says growth is required in general /Mixed-Use Areas/, she got him to reveal as his justification a passage which no planner had ever before mentioned — thereby tipping his hand to Campbell’s Associate Laura Bowman who would go on to write up a killer factum overnight. Bronskill also attempted to show up Wilson as, like, disrespectful or something? I didn’t get what he was trying to do as he read into evidence Wilson’s FB post criticizing Hill’s limited enthusiasm in pursuing the Council direction to oppose the Appeal. Astonishingly — though Bronskill did not read it out loud — the printed post concluded “right now the OMB is our new best friend”. Wow!

Friday morning Bowman showed up with a killer factum — by a huge margin the best thing I’ve read on the law of this stuff — while Bronskill had drank some wine and turned in early. Accordingly, while Bronskill’s summary statement was a bunch of technical legal stuff and debating sophism, Campbell drove home an awesome Jimmy Stewart-like speech on principles. (Hill, by contrast, was reduced to ‘commending’ the opinions of Romano and Chen and getting grilled on whether the City was or wasn’t opposed to the proposal. Friday morning was also marked by extensive questioning of Hunter by Mr Chee-Hing about laneway capacity.) Campbell’s focus was on (i) the extent to which ‘expert’ trumps ‘lay’ opinion on whether an impact is OK, and if so what the point of community consultation is; (ii) the precedential issue about /MU/ versus /Avenue/; (iii) the ‘burden of proof’ question regarding whether Appellant has justified all the requested overage.

At the end, Mr Chee-Hing announced that his decision would be forthcoming in the future — and not the near future.