The great debate on downtown building heights in Courtroom 36

By David Reevely
Ottawa Citizen
Jan 09, 2016

Writing strict limits on the heights of new buildings into Ottawa’s allpowerful official land-use plan is OK because those limits won’t be that binding, the city’s top planning lawyer argued in court Friday.

That sound you hear is people across downtown screaming.

What was going on in Courtroom 36 in the Elgin Street courthouse was the most technical of legal proceedings. City lawyer Tim Marc was asking Judge Marc Labrosse for permission to make a full judicial appeal of an Ontario Municipal Board decision on a community design plan for Centretown. That plan took years to write and has been challenged in numerous ways. Since it governs what can be built on Ottawa’s most valuable land, both big money and the feel of downtown for decades to come are at stake.

Most of Ottawa’s big land-use fights come down to height: how tall a new building can be, considering what it’s next to. The plan for Centretown tried to do something unusual by including a schedule of precise heights for what’s allowed where. At least, that’s how it was billed.

Usually that kind of thing is done through the zoning code. The neighbourhood fights break out when a developer looks at loose wording in a neighbourhood plan and says the zoning doesn’t match it, and plays the documents off against each other. Writing specific heights into the Centretown plan was meant to forestall those lotby-lot battles and also — here’s where the city got sneaky — help the city get payments from developers that provincial law lets the government claim when they get favourable rezonings.

They’d make the planning document do what zoning is usually supposed to do, which would both lock in building heights and make it easier to bring in some money.

Developers hated it, obviously, and challenged it to the OMB, a tribunal that can overrule city council planning decisions. Specifically, a company that owns a smallish medical building and parking lot at 267 O’Connor St. objected to a nine-storey limit on its property.

The city lost. Not only can the site at 267 O’Connor take a taller building, the board said, but you can’t be that rigid in a neighbourhood plan, period.

Marc, the owlish boss of City Hall’s planning lawyers, wants that decision overturned by a judge. Veteran lawyer Janet Bradley opposed him, questioning how her client got forced into defending a part of a municipal-board ruling it hadn’t even asked for.

(Labrosse, a young judge who’s been on the bench less than two years, remarked when he was a lawyer not that long ago he might have consulted Marc and Bradley for advice if he were dealing with such a case. “I’ll put on my big-boy pants,” he joked.)

One of Marc’s arguments, astoundingly, is that the Centretown plan doesn’t put the hard limits on building heights it seems to. When the city looks at a proposed development in Centretown, Marc said, it only has to “have regard to” the plan. A final decision doesn’t have to “conform to” the plan. Its prescriptions may look specific, but they aren’t.

“There is flexibility within the document, and that was intended within (it),” Marc said. If a developer wants to build higher than the plan allows, it shouldn’t be any harder than getting a zoning change, he said.

And yet, Marc argued, stepping carefully, the heights of buildings are still important enough to pull out of mere zoning and write into the official plan. In Centretown in particular, building heights and skylines are a big part of the way the neighbourhood feels.

“That weighing (of priorities) is what the official plan is about. It is about more than that, but it is about that,” Marc said.

It’s important to set policies like this ... but of course they can still be put aside by a minor zoning variance, the kind you might get to build a deck.