On January 9 Ecojustice, on behalf of Environmental Defence, launched a judicial review of the Minister of Municipal Affairs and Housing’s changes to Hamilton’s (aka The Hammer) official plan. The changes made by the minister will encourage urban sprawl over sustainable densification.
In an interview with rabble.ca, Phil Pothen, in-house Counsel and Ontario Environment Program Manager with Environmental Defence, said, “The governments actions were so extraordinarily out of line, in Hamilton, that even though it hardly ever makes sense to seek an application for judicial review, this is one of those cases when it really does make sense.”
Even if the court accepts there wasn’t a need for the land, that is not enough.
The environmental groups have to show that the government’s bad decision was so extreme, so blatantly contrary to the law that it rises to the level of malfeasance.
Hamiltonians overwhelming came out in support of densification and efficient land use. City council was given a very clear mandate from voters and constituents indicating they wanted denser neighbourhoods and homes built within existing neighbourhoods. That hasn’t changed.
According to Pothen, Hamilton had a plan detailing where new homes could be built within the existing boundary. The provincial government literally ripped those provisions out of the official plan.
Minister Clark then used that provincial change as a pretext for demanding more greenfield land be opened up for sprawl.
Typically, land use planning issues are handled by the Ontario Land Tribunal (OLT). Instead, a panel of judges will hear this argument.
Going to court actually makes things much more difficult for a non-governmental organization (NGO) opposing the government. OLT members are typically lawyers, architects, planners and public administrators selected based on special expertise in planning.
In court, an NGO has to give duelling land use planning lessons to the court and establish basic principles of land use planning through evidence which you wouldn’t have to do at a tribunal.
Government has not provided reasons for municipal interference
In this case, Clark was bound by the Growth Plan and the Provincial Policy Statement through the Planning Act. However, Clark didn’t provide any reasons for interfering with Hamilton’s Official Plan.
“The key piece of context is that there is no legitimate explanation for what the government is doing to the Greenbelt,” explained Pothen. “There’s not even a plausible argument to be made that they need the Greenbelt land or that we’re going to get more homes as a result of paving part of the Greenbelt.”
In fact, there is a vast, untapped supply of existing designated greenfield and whitebelt areas that would allow sprawl to continue – albeit, this is a terrible idea — at the same pace it has even without any densification improvement in the Greater Toronto and Hamilton Area (GTHA) for years. That means the province would never have to use any Greenbelt land.
But Hamiltonians have been clear – they want intensification to save prime farmland, wetlands and areas with species at risk. Hamilton’s official plan proved the city doesn’t need to sprawl in order to house their designated population increase.
According to EJ lawyer, Laura Bowman, Clark didn’t comply with the Growth Plan minimum intensification requirements that impose an intensity first approach.
Clark is bound by the 2020 policy put in place by Ford’s cabinet. Instead, Clark chose to put his amendments on the Environmental Registry with no explanation. That’s neither transparent nor justifiable especially in light of the fact that only cabinet can change that policy.
“The Minister took the view that Hamilton was wrong that they could accommodate some of it [designated growth] through apartments. But that’s not a Growth Plan Policy,” stated Bowman in an interview with rabble.ca.
Bowman says the case is really about whether municipalities, under the Growth Plan, are able to choose to accommodate growth in different ways than the 1950’s sprawl model.
Ironically, the entire purpose of the Growth Plan was to force municipalities, and Clark, to do just that.
“The Minister’s decision is unreasonable because we don’t know why he chose to expand Hamilton by 2,200 acres. There were no public reasons given,” explained Bowman.
There was also no underlying analysis provided in Clark’s decision which means there’s no way to know how his decision could comply with the Growth Plan.
Bowman added, “In fact, he [Clark] doesn’t seem to know how either because his amendments – the Growth Plan requires a 50 per cent intensification minimum – took out the intensification levels and left them blank.”
Instead, Clark favoured single family housing and decided to ignore some of the prescription in the Growth Plan requiring him to show that growth could not be accommodated within the settlement area.
“Democracy is undermined when folks are able to get the government to do things that the government knows are blatantly contrary to the public interest,” observed Pothen.
Ford government “acting like a band of pirates”
The Duffins-Rouge Agricultural Preserve is thousands of acres of land that was only ever sold for agricultural rights. Development rights remained held by the public in trust in the form of these easements.
The Ford government has essentially given away this essential corridor without even extracting the development value of that land for the people.
“The threat to democracy is the government acting like a band of pirates who have taken over the ship and are dividing the spoils amongst themselves rather than a captain of the ship trying to steer the thing in all of our interests,” said Pothen.
Developers have had a longstanding influence on planning policy in Ontario. Bowman points to the fact that the Planning Act is routinely amended every couple of years.
While more recent major overhauls have reflected public calls for more greenspaces and walkable communities, Bowman see tremendous tension because developers are very powerful economic players.
Developers have been countering the restrictions imposed by the Growth Plan (2005) by disseminating land shortage propaganda for the past 17 years. Simultaneously, they were amassing properties and approvals to build on them and then not building on them.
All of this was a ploy to ‘prove’ there’s a (phantom) land shortage that does not exist.
The Ford winning a majority government in the last election opened the flood gates for developers who were handed everything they had been asking for.
Conservation authorities were stripped of their powers. Growth plan restrictions were undermined by inflating population projections. The market was geared to favour sprawl.
And, so the pendulum swings back and forth with each passing provincial government.
“This is not a good way for us to be planning our communities. We need to find a stable compromise between what developers see as desirable and what is in the public interest. That has really been illusive for the last 20 years. People thought we were doing ok until 2018,” explained Bowman.
Sprawl will grow public debt by billions
The much larger issue is that with each swing land use planning decisions, infrastructure decisions and spending are locked in.
This round of sprawl is going to create billions and billions of dollars of public debt if the land is serviced — the culmination of downloading development fees onto municipalities.
Bowman points out that ultimately, some of these developments will never be built because the motivation is simply land speculation to make a profit.
When the Growth Plan and Greenbelt were put in place, developers bought up properties below development value. However, there is no guarantee that once these speculators get approval, they will actually build homes.
Regardless, the Growth Plan forces municipalities to service those properties with sewers, water, electricity and roads at tax payer expense.
Municipalities wanting to phase in growth, by developing inside their urban boundary before expanding out, are not allowed to. This plan is absolutely not in the public interest.
Clark’s plan is purely in the interest of land and infrastructure speculators who will flip the property to make a profit on land they never intend to develop. And, that is exactly what happened to Hamilton.
Bowman points out that this is actually, “A trifecta of interests. There’s the construction industry. There’s the aggregate industry which benefits massively from expanding roads and building highways. All of these sectors benefit from uncontrolled land use planning.”
The impact on the democratic process is clear – Clark’s decision was posted for consultation without including the changes, if any, he intended to make.
While the people of Hamilton had no opportunity to comment on the undisclosed proposed amendments, the general comments that were submitted overwhelmingly favoured keeping growth within the urban boundary.
“This is a very direct undermining of democracy. The Minister is also elected, but the Minister apparently didn’t see fit to be accountable for his decision by providing reasons or consultation on his decision,” said Bowman.
She went on to explain, “What we are seeing is the tremendous influence of developers and land speculators on the policy process.”
The fight over 15-minute communities
Hamilton is a city that historically embraced 15-minute communities. Durand, Westdale, and Jamesville are thriving neighbourhoods that are home to art galleries, cafes, theatres, independent retailers, and schools. No car required to reach everything within a 15-minute walk.
Recent online attacks of these complete communities highlight the lack of any plausible argument to be made in support of sprawl.
“What the government wants in terms of development is so at odds with what people actually want that government has to recruit influencers to concoct a conspiracy theory in order to muster up some kind of foot soldiers to take their side,” explained Pothen.
According to Pothen, no one on the political spectrum actually opposes the idea of walkable communities. Instead, the Ford government is creating a fake moral panic about something that isn’t happening.
Influencers Jordan Peterson and Chris Sky are spewing the mantra.
Sky, whose real name is Chris Saccoccia, is vice president of Sky Development Group. The sprawl development company, owned by Sky’s father, typically builds 4,900 square foot suburban homes.
Sky, who established himself as a prominent anti-vaxxer, COVID conspiracy theorist who associates with neo-Nazis, is anti-15-minute communities.
At the end of the day Bowman says, “This is about providing profit for developers and land speculators. This decision is really about interfering to privilege a very narrow sector and that sector is not people who are looking for affordable housing.”
For more information and actions check out handsoffthegreenbelt.ca.