By illegal, we mean against the legislated rules.
An illegal building is rarely contrary to the extensive technical requirements of the Ontario Building Code. Rather, it is contrary to the overarching laws and fundamental policies that shape Toronto.
WHAT STEPS SHOULD YOU TAKE TO BUILD YOUR ILLEGAL BUILDING?
If your project is only slightly illegal – a few extra storeys here, a bit too crowded there – in order to get permission to do the project you will go to a Committee of Adjustment panel where no helpful records are ever kept of the proceedings. So at the Committee you’re always in uncharted waters. Furthermore, there is no precedent-setting appeal process that might shape future decisions by the Committee or inform other applicants about what kinds of “adjustments” to the law the Committee of Adjustment could properly find acceptable. There is, in other words, no case law. The theory behind this is that every Committee of Adjustment decision is specific to a local situation and is not comparable to other situations, so of course nothing is a precedent. But don’t despair. At the Committee of Adjustment, having paid your $4000+ application fee, you – like approximately nine out of ten other applicants – will get what you ask for.
If your project is very illegal, it will cost you more in hired private-enterprise lawyers and experts. They will take your proposal to the Planning Division and Community Council and, on your behalf, apply for considerably more than you really want so you can look like you’re making a real sacrifice when you eventually make a more reasonable – though still illegal – proposal, and the city staff and politicians can feel that they’ve accomplished something significant when you alter your original disgraceful application. If the process is extensive and complex, it may take as much as $1,000,000 of your money to break the law.
WHY HIRE A PLANNER?
Hiring a planner is a good investment. Your planner will give his expert opinion that your illegal building is completely in accord with higher policy that encourages intensification (this is usually cited in his opinion in great detail), and “in my opinion” the building “fits right in.” Your planner will cite other buildings – probably recently built in the area, also illegal – to prove that your building is appropriate. If there’s a problem with the proposal that is plainly unsolvable, your planner will ignore it. If appropriate social infrastructure may or may not be available, your planner will take the optimistic view that it may be available, and won’t dig deeper. The planning rationale will often be published in the name of a prominent planning firm without a designated author, so your planner, if pressed, can deny he really meant what the planning rationale says.
Sometimes the planning rationale refers to other documents you’ve commissioned that cite small and presumably fixable technical problems (violent winds, unmanageable traffic), but no private-enterprise planning report that is publicly available has ever criticized a project on planning grounds.
The planning rationale and all the other studies you’ve commissioned will say nothing about how the proposed building will actually be built, on the grounds that that issue is irrelevant now and will be addressed at a later date, behind closed doors, during what’s called the site approval process – from which the public is excluded.
WHAT THE ONTARIO MUNICIPAL BOARD DOES
Suppose somebody is determined to stand in the way of your building – maybe the city planning division or city council just can’t stand your proposal, or the neighbours are prepared to fight. Outspend them. You can buy lots of expertise that neither the city nor the neighbours can match. Sheer quantity doesn’t always win, but it helps. The OMB has many rules that are “judicial” – that is, the Board is required to decide the case that’s before it based on the evidence that is presented. Sometimes that evidence is quantifiable data, sometimes it is in the form of opinion evidence. The Board does not think of itself as an investigative body that can obtain evidence for itself – as European courts usually do (and as the Board can do in fact although rarely does in practice) – but rather as an adjudicative body, so it makes its decisions on the basis of what it hears from the contending parties. Make sure it hears what you want it to hear.
This does not mean that the Board is inherently pro-developer, as it is often said to be. It means that money talks, because of what it can buy. But ideas talk, too, and you should be wary of them at Board hearings.
FIRST THINGS FIRST
Don’t worry about whether your project can actually be built economically without causing misery to the neighbours or the city as a whole. First, get permission to put up the building you want. The issue of how to build it comes later, and that’s none of the public’s business. If you were to abandon your car in the middle of the street, blocking traffic, it would soon be towed away and you would be fined (or jailed). But if your building project “needs” to block a couple of lanes of vehicular and bicycle traffic, for two or three years, just ask. The city will figure out how many parking spaces you’ll take up, send you an invoice for the (reduced) parking fees, and approve your application. Street and sidewalk blockages for private gain are never turned down.
It’s hard to believe it’s that easy in Toronto, but it is.
WHAT WILL YOUR PLANNING RATIONALE REPORT SAY?
The planning rationale document produced by your hired planner will look like others of its kind; it will be similarly organized; and it will say the same things. It will be graphically attractive. It will be long. It will be mostly boilerplate. It is not meant to be read. Instead, it is designed to (1) meet the planning division’s requirement that such a document be produced, and (2) exhibit civic responsibility and due diligence on your part. The part of your planning report (i.e., most of it) that rehashes various existing policies and rules is not news to anybody. The architectural description and context of your building, and much of the rest of the report, is simply repeated from other documents. The part that represents your planner’s opinion that your building is terrific is just an opinion.
If your planner started out liking your original proposal for a 44-storey building, he’ll also like your revised proposal for a 25-storey building, and for the same reasons.
AVOID HERITAGE CONSERVATION DISTRICTS
Heritage Conservation Districts are meant to preserve and enhance the appearance and function of special historic areas. Avoid these districts. They are subject to particular laws and procedures that make disrespectful projects especially onerous. Heritage Conservation Districts are governed by The Heritage Act, which is essentially bullet-proof and which overrides The Planning Act. Hic sunt dracones.
“GUIDELINES” ARE NOT LAWS
Cities are known as “creatures of the province.” That means that the province can decide what laws a city can enact, how a city can raise money through taxation, and how a city can control property development.
Toronto has dealt with this by putting in place guidelines – which don’t have the force of law, but are better than nothing when arguing a case at the Ontario Municipal Board. These guidelines give property developers some idea of what are acceptable parameters when contemplating the general form and location of new multi-unit buildings. There are Tall Building Guidelines in place. Mid-Rise Guidelines and Low-Rise/Townhouse Guidelines are in preparation. These guideline documents are, as you would expect, well written, beautifully illustrated, thoughtful, exhaustive and open to argument and contradiction at every turn.
The regime of guidelines (and zoning by-laws in general) is a recent invention. The surviving part of old downtown Toronto that everybody admires was built without such a regime.
WHAT IS A “PLANNING ISSUE”?
Planning issues are issues that the various decision-making bodies (Committees of Adjustment, the Ontario Municipal Board, etc.) feel comfortable in dealing with, and do deal with. Infrastructure overload, transit availability and separation distances between tall buildings are planning issues. Debatable aesthetics and unseemly greed are not planning issues. You won’t be questioned on them.
Max Allen, December 2015