Speech against 223 Princess St at Planning Committee

By: Jeff McLaren

ABSTRACT:
My speech at planning giving the four major reasons for voting against the 223 Princess St. development application

I cannot yet support this application for four reasons. First, it does not seem to support enough of the intents of the official plan. 2) Insufficient justification has been provided for amending the height provision in the bylaw. 3) I believe the negotiation procedure starts at the wrong starting anchor point and lastly 4) the staff comprehensive report has some important errors and is incomplete because it has missed several relevant points in important planning tests.



Point 1



One of the intents of the OP is to intensify the city. One of the points of education that I have received from staff is that we do not want hard numbers in the OP rather they should be in the zoning bylaw. To this end it would seem that the zoning bylaw has provided the hard numbers to determine how much intensification is acceptable. I refer you to the 2nd peer review addendum in which we can see that the zoning bylaw provides for 3 to 4 times the EXISTING massing and a proportional amount of intensification. – In this sense I can see why one might think that an OP amendment isn’t necessary.



However, another point of education that I have received from staff is that the OP should be read in its entirety and thought of as a whole to ensure that all applicable polices are considered – in other words we should not be looking at only one intent to justify applications – similarly, we should not be looking only at one intention to determine whether an OP amendment is needed. – We really cannot look at intensification only.



As I read the OP I have discerned several relevant intents in addition to the intensification intention. Three of the more relevant ones – in the OP’s own words since we should look at section 2 of the OP with greater weight than the rest – are 1) an intention “To protect, conserve, and strategically deploy the natural, cultural and built resources of the City ” –Goal section 2.



I believe putting a 21 century 15 storey tall building in the midst of 2, 3, or 4 storey 18th and 19th century human scale buildings goes against the OP’s intent to protect and conserve cultural and built resources especially as it relates to sense of place, and, as the 2nd peer review suggests, in terms of appropriateness of massing and density.



A second and closely related intent discernible in the OP is to ENHANCE cultural heritage resources, that is OP 2.8. Including skylines, views capes and view planes. In some cases the term “to and from” is used: OP 7.3.a2.



I have been educated by City staff that bylaws are the concrete legal rules that determine the limits of the intents. It therefore seems that we should not change the bylaw without also changing, annulling or exempting the relevant connected intents of the OP – because as both the OP and the Planning Act say: OP 1.1: “no zoning bylaw or public work can be undertaken that is contrary to the OP.” – changing a bylaw requires as a precondition changing all the applicable policies in the OP – we really should have an OP amendment too.



A third intent I have discerned in the OP is to manage the degree of change with an orderly transition. Again, the current bylaw provides for the correct and acceptable numbers. The current bylaw already allows for over 3 times as much density and massing than currently exits. This is what the community has considered orderly and managed transition. If we amend the bylaw we necessarily break from the intent of the OP in this case. And so really the proponent should be applying for an OP amendment to allow for disorderly and unmanaged transition. Remember, The OP gives intents and the zoning bylaw gives cold hard numbers to those intents. The height limit in the zoning bylaw, as I understand from people who were involved in the original crafting, was arrived at with broad public consultation and support, and therefore reflects the will and sentiment of the people at the time – and, clearly, judging from the response today, the sentiment of the people today too. We cannot discount this – the bylaw is NOT out of date.



And so my first point is that this zoning amendment meets one OP intent but fails to respect at least 3 other intents. It has not been demonstrated that the one intent significantly outweighs the other three intents nor that they have been mitigated in a healthy way for the community. Therefore the official response that there is no need for an OP amendment on page 52 of 56 is both incorrect as far as it goes and incomplete as it is missing all proper considerations.



Point 2



The entire comprehensive staff report seems to give reasons to build – but not reasons to amend the bylaw. The question before us is not whether we should build or not – the question is whether we amend the bylaw. Consider some representative examples:



EG 1: page 10 of 56. All of these references to the PPS are reasons to build not reasons to amend the bylaw – because they apply just as well to an as-of-right building (an as-of-right building is of course a bylaw compliant building). Also, this point is an example of mere assertions without reference – anyone can make an assertion without evidence or logical connection “the sewers will work because it is a beautiful building – I like it” – but that would be silly (because it is unconnected to reality) and unprofessional (because it has nothing to do with proper planning rational). Asserted claims must be backed up with a reason or an example or an accountable authority.



EG 2: page 14 of 56 under OP considerations. This is another example of assertions without reference which could be considered even more true with an as-or-right building. 1) “vertical intensification” occurs with 8 storeys too 2) there are not any residential units in the old theater property so even one more unit would contribute to sustainability and injections of growth. – so far these are “reasons” to build, not reasons to amend the bylaw. 3) “compatible with its surroundings” this assertion is neither clear nor demonstrated but if it were then that might be a possible debatable but contributing justification to amend the bylaw. And this is a major missing point that I will get to in my fourth point.



As I read report PC-16-085, I could only discern one possibly valid justification for extending the height requirement of the bylaw: OP Section 10A.4.7 – which is referred to on page 26 of 56 and uses the language “clearly indicates to the satisfaction of the City….a greater height within a specified building envelope may be approved”. – I can assure you it is “not clear” in any sense of the word. Consider the two most likely senses of the word “clear” 1) easily seen or understood: is not the case as this entire speech demonstrates and second sense 2) strong endorsement: I certainly disagree with 15 storeys and I am under the impression that I hold some authority in the City – and I can assure you that reasons for 15 storeys have not been met to my satisfaction. – However, noticing that the bylaw height bisects the 8th floor on the vertical plane, I would have no problem extending the height to finish the 8th floor since that would fulfill that OP requirement and half a floor is ridiculous – the full 8th floor I can see clearly and it would be to my satisfaction. But anything more than that is unclear and not justified and unsatisfactory.



The question before us is whether to amend a bylaw. The question is NOT whether to build or not build. The reason and rational provided in this report have not provided any good reason to amend the bylaw. They are all reasons to build and are more or less equally useful to justify building a 25.5 metre tall as-of-right, bylaw compliant building. The planning rational is “good to build” but it does NOT provide any reason to amend the bylaw.



Reasons to amend the bylaw should take the form of comparing contradictory OP intents and showing how their relative and net total value for the city would be increased with a zoning bylaw amendment. This is where the question of whether we should amend a bylaw is answered. The question of whether to amend the zoning bylaw has not been answered clearly or satisfactorily in this report.



Point 3



There seems to be a predisposition of thought that the law should be the starting anchor point for negotiation in each instance. This seems perverse.



Consider an analogy to the law forbidding the killing of another human being. If we can say the intent of an anti-homicide law is to promote a safe and harmonious society then it is perverse to try to negotiate the law’s sanction of a murder just because you wish it. The issue at stake is whether the intent is furthered by lifting the ‘no killing’ restriction. We have some cases where it is legitimate (ie self-defense and in a war zone).



Similarly, we have a bylaw – it’s the law. An application for change should give good reasons why the community would benefit more if the bylaw were to be altered than enforced.



But that is not what appears to be happening here. The zoning bylaw seems to be treated as the starting anchor point to a negotiation similar to how car and real estate venders start with an asking price and then try to get the best deal.



The law is our collective enterprise – a social contract that affects us ALL as a community – it is not a commodity to be discarded at the first opportune minute for the highest price. The law is our collective inheritance; the fabric of our social life; and the substance of peace, order, and good government. It is debasing and perverse to treat these noble aspects of our community as mere disposable commodities because they are irreplaceable when lost.



Point 4



While the report seems to say a lot without real substance and evades the real question of whether to amend the bylaw or not, there appear to be two major types of errors in the report 1) errors of fact; and 2) errors of omission.



Let me show two examples of errors of fact:



1) On page 20 of 56 the staff report alleges: “there are no significant views of cultural heritage resources in the area of the subject site that are identified in the official plan”. May I draw your attention to 3.10.A.10 which claims that “new development must protect the views to and from a fortification, as set out in Section 7.” and 7.3.A.2b in which protection must be afforded to “viewscapes to and from the fortifications;” and finally Section 7 and the Heritage Act make explicit reference to scenic vistas, viewplanes and streetscapes. The downtown and harbour area is identified in many places as just such a place – just consider 10A.4.1. where it is, in fact, so defined.



2) On page 21 of 56 there is a reference to “improved human scale” as if getting closer to human scale is possible and equivalent to human scale. This is incorrect: human scale is a quality that IS or IS NOT; it is like, death you are dead or alive (only in poetry can you say half dead, which actually equals alive, and there is no room for poetics in proper planning rational). Something is or is not human scale. “Getting closer” means it is not human scale. Therefore, since human scale is a condition to satisfy, claiming “improved human scale” is an admission that this condition is not satisfied while wording it in a way that makes it sound AS IF it were satisfied. This is highly inappropriate in its grammatical deceptiveness.



Now consider three very egregious error of omission:



First, concerning the Downtown and Harbour Area Architectural Guidelines, starting on page 37 of 56, a list appears which seems to be an example of picking and choosing the friendly policies and omitting the policy points that do not fit a desired outcome.



The following points, which I find quite damning of the proposed application, are simply not mentioned or addressed:



1) “[City Council] should not permit upzoning that will result in the creation of new buildings tall enough to fundamentally change the image of the Downtown and Harbour Area….further rezonings within the Downtown and Harbour Area over and above the density the existing zoning allows, are most certain to undermine the much admired existing urban and architectural character of the Area.” – pages 4 and 5



2) “It is our view that in regard to such urban design considerations as massing, setbacks, and height, ‘complement’ and ‘complementary[sic] should be taken to mean that the massing of the of the[sic] proposed new design would be similar to that of the existing building; and that its setbacks, and height at the street façade are also very similar to it. In short, as far as the volumetrics of a new building or addition to and existing building are concerned, ‘complementary’ should be considered to mean ‘very similar to’” – page 7.



The consultants who wrote the study that makes up part of the OP say: don’t change the bylaw here – respect the bylaw. No real reason has been given to amend the bylaw.



The second and third examples are found on page 20:



a list of OP adverse effects is given and how the applicant has dealt with each. Except that ‘h’ and ‘k’, which are the crux of many of public concerns, are not addressed or handled. Failing to deal with these two adverse effects should be reason enough to reject this application.



This application does not fulfill the intents of the OP, does not provide justification for amending the bylaw, is following the wrong negotiation process and is missing critical information. I cannot support this.

Added on: Aug 26, 2016