The proposal for this pair of 27-storey condo towers for Centretown is at the centre of a legal battle about whether height limits can be included in community design plans.
The city is stuck with a ruling that strict maximum heights for buildings can’t be locked into the plan for Centretown, a Superior Court judge has ruled.
With its plan for the downtown district, the City of Ottawa tried to get a little bit cute. Usually, how tall a building can be is written into the city’s zoning code, which is relatively easy to change. When the city updated its plan a couple of years ago for Centretown, the neighbourhood that’s seen the most battles over tall buildings lately, it tried to set maximum heights in Centretown’s “community design plan,” a broader and more powerful thing that’s more difficult to tweak.
Most fights over proposals for tall buildings come about when property owners say a community design plan seems to allow taller construction than some obsolete zoning bylaw. Locking buildings heights, in storeys and metres, into Centretown’s plan was supposed to forestall those fights and, thanks to a quirk of Ontario’s planning law, make the city some money off developers when their rezoning applications are successful.
No can do, ruled the Ontario Municipal Board, which can and does overturn city council decisions. Community design plans aren’t meant to be that specific, the board said. It’s one thing to set ranges or define what you mean by a low-rise or a high-rise building, but if you want maximum heights set for each piece of land in downtown Ottawa, you put them in the zoning.
That decision could in theory be overruled by a court. But there’s no legal question with the board’s decision that’s worth a court’s time, Justice Marc Labrosse decided after hearing the outline of the city’s challenge from city lawyer Tim Marc.
Labrosse denied the city “leave to appeal” — the opportunity to have the case heard in full before a panel of appeal judges.
The OMB gets its authority from provincial laws and it should only be overruled when it’s made an unreasonable decision, Labrosse wrote. “This (decision) was within the board’s jurisdiction and the reasonableness (or correctness) of the board’s decision is not open to serious debate,” the judge said.
Its adjudicator, Richard Makuch, considered all the evidence and did his job, Labrosse wrote. Marc had complained that Makuch didn’t give the city’s experts their due, but although Makuch didn’t wrestle deeply with the arguments they made when he wrote his own ruling, the judge found he clearly had heard them, and there’s no sign that Makuch misunderstood what they were saying.
If there’s a saving grace for the city — and others in Ontario that might want to copy Ottawa — Labrosse said the municipal board’s ruling isn’t total and sweeping. “The board’s decision is specific to these circumstances and not a broader statement of the law that relates to official plans,” he wrote.
But still, the city lost, which means its attempt to head off future tall-building fights is scotched and it has to pay the corporation that owns the building and parking lot at 267 O’Connor St., which wants to redevelop the property and won this court battle along the way, $9,000 in compensation for the court time.