Urban design decision-making: a study of Ontario municipal board decisions in Toronto.

Kumar, Sandeep

Abstract

The paper is a study of a Canadian decision-making model in urban design review process. The study focuses on the Ontario Municipal Board (OMB), a provincially-appointed administrative tribunal, which is unarguably a powerful decision-making body with respect to matters of urban planning in the province of Ontario. The design decisions made by the OMB have a significant and lasting impact on the physical fabric and visual make-up of cities in Ontario. This research assesses six Board decisions to explore how design decisions are made, identify factors used to evaluate the design quality of development proposals, and examine whether such a decision-making model has helped enhance the quality of the built environment. The study suggests that the OMB model has both pros and cons but is certainly not fully conducive for reviewing and adjudicating designs. It further suggests that the OMB makes conscious attempts to recognize urban design as an important and integral part of planning and supports less rigid design control measures despite being mainly concerned about the "measurable" impacts of a design on a community. Overall, this adjudicative process attempts to balance private and public interests but while doing so may not have led to the best design solution.

Keywords: urban design, decision-making, Ontario Municipal Board, Toronto

Resume

Cet article analyse le modele de processus decisionnel canadien concernant le processus d'evaluation de design urbain. L'etude se concentre sur la Commission des Affaires Municipales de l'Ontario (CAMO), un tribunal administratif qui est incontestablement un puissant organisme de processus decisionnel en ce qui concerne les questions d'amenagement urbain en Ontario. Les decisions de design urbain, effectuees par la CAMO, ont un impact significatif et durable sur le tissu urbain des villes en Ontario. Afin d'explorer le processus decisionnel nous avons evaluez six decisions de la CAMO. Il s'agit d'identifier les facteurs utilises pour evaluer la qualite des designs urbains et d'examiner si ce modele de processus decisionnel aide a rehausser la qualite de l'environnement urbain. L'etude suggere que le modele de la CAMO comporte des aspects positifs et negatifs sans etre pour autant completement adequat pour effectuer l'evaluation et l'allocation des designs urbains. L'etude suggere egalement que la CAMO reconnaisse l'importance du design urbain comme une partie integrante de l'amenagement urbain. En effet, la CAMO doit imposer des mesures de controle moins rigides malgre le fait que la Commission est principalement concernee par les impacts mesurables du design urbain sur la communaute. En general, le processus adjudicatif essaye d'equilibrer les interets prives et publics, ce faisant, la Commission n'a pas toujours opte pour le meilleur design urbain.

Mots cles: design urbain, processus decisionnel, Commission des Affaires Municipales de l'Ontario, Toronto

Introduction

The design quality of development proposais is reviewed and decided in different ways. There are municipal-level review committees such as in British Columbia and Quebec in Canada (Kumar, 2002) and all across the United States (Lightner, 1993) that review design aspects of development proposais. National and provincial governments also appoint special committees to review designs in their respective capital cities. The National Capital Commission (1) (NCC) in Ottawa and the Wascana Centre Authority (2) (WCA) in Regina Saskatchewan are examples of such committees in Canada. The staff of local municipal authorities also review designs of development projects and are usually the first people who get to review and make decisions. Kumar's (2002) survey of urban design regulations in Canada reveals that a different form of decision-making model exists where there is no design review panel. This model constitutes provincially-appointed quasi-judicial boards that play a significant role in making final design decisions in case of appeals and by far could have the greatest impact on the built environment and communities in their respective provinces.

This study investigates the design decision-making model in which the provincially-appointed body is the final authority in the design- and planning-related appeals process. The Ontario Municipal Board (OMB), an administrative tribunal in the Canadian province of Ontario exemplifies such a model. The OMB is an important and powerful decision-making body in Ontario with respect to urban planning- and urban design-related matters. No provincial board in Canada has as extensive a jurisdiction over planning and urban design matters as the OMB (Chipman, 2002). Its decisions have a significant and lasting impact on the physical fabric and visual quality of cities in Ontario.

In recent years, the public and media perceptions of the OMB have become distinctly negative. Local Toronto media has chastised OMB for its ineffectiveness and questioned its relevance many times (For instance, Stein and Swainson, 2000, regarding OMB's decision to allow development on the Oak Ridges Moraine; Immen 2002, on allowing condominium development near Fort York, a revered historic site in Toronto). It has labelled the Board as "a rogue regulator that has been terrorizing Ontario towns and cities," "an affront to democracy,.... pro-developer," and a "paternalistic relic" to name a few (Barber, 2002a; Barber, 2001). Many Ontario municipalities have also expressed their frustrations with the costly and sometimes lengthy appeal process. These dissenting voices in the recent years have become widespread and much louder, asking for major reforms and even the abolition of the OMB.

Architecture critics Christopher Hume (2003) and Albert Warson (2001) compare urban design in Toronto and Vancouver and conclude that Toronto is far behind Vancouver. Hume says that this is partly because the OMB appeal process is largely driven by lawyers rather than planners, who are more attuned with the city building practices than the lawyers. He further argues that the decisions of the design review panel in Vancouver have led to better designs and generated a better built environment in Vancouver than what OMB has achieved in Toronto. Punter's (2003a, 2003b) study of Vancouver's design review panel supports Hume's argument. Punter attributes the success of Vancouver's design review panel to its early intervention into the design process, the quality of its critique, the independence of its advice, the transparency of its process, and its ability to support design innovation and imagination.

Design review (3) by design review panels as a successful model of decision-making is highly debatable. Barring Vancouver's, the design review process is often contentious and unsatisfactory (Scheer, 1994; Delafons, 1990; Hough, 1994; Punter, 1994). Several reasons for the ineffectiveness of design review are documented in literature, though mostly by American scholars (Lai, 1994; Scheer, 1994; Wallis, 1994; Zotti, 1987; Williams, 1977; Poole, 1987). Concerns arise primarily from the lack of due process, fairness, and objectivity. Design review is also perceived as a rigid process that discourages innovation, since innovation conflicts with established legal standards. Kumar (2003) details how lack of access to and misuse of information makes the review process unsatisfactory. Kumar and George (2002) explain how design review process is fraught with the fallacious arguments, which gives rise to inconsistent decisions.

Scheer (1994), who has been at the forefront of studies on design review committees in the US, raises some important questions about decision-making in design. She points to fundamental questions such as who should judge design, whose tastes should matter, and whose interest it is to control the design quality of buildings. For her, the purpose of design review is not to deliver justice to the parties involved, but to deliver the best environment to the community. She strongly argues "the explicit and fair process might not be the one that delivers the best environment." She also asserts that striving for objectivity in decision-making stifles design excellence.

While assessing the provincial decision-making model, the study also intends to test the veracity of critics' claims about the OMB and OMB design decisions. It finds answers to the questions such as: What are the characteristics of the Board's decisions? Which factors were considered while making design decisions? Has the OMB process in anyway enhanced the quality of the built environment in Ontario cities? Is this a "good" model of decision-making in urban design? This study intends not to look at the administrative, procedural or political challenges and issues that the OMB faces and neither does it view the OMB and its adjudicative process from the lens of legal ideologies, theories or parlance. The focus of the study is on the role and procedures of the OMB and characteristics of its recent design decisions.

To answer these questions, a select set of six board decisions, which encased significant discussions on the design aspects of the development proposals, has been analysed using content analysis. The analysis also relied upon documents such as submissions made by the main proponents and opponents of the proposals, witness statements, city staff reports, and consultants' reports. To further enrich the data, four OMB members and four private and public urban designers were interviewed.

The study suggests that the OMB has made conscious attempts to recognize urban design as an important and integral part of planning while being cognizant of its special nature and needs. The Board has developed new policies and allowed new methods of visualization to assess the impacts of design. Although adversarial in nature and restricted in their approach to adjudicate design issues, the steps involved in the review process inadvertently force the parties involved to consciously construct, further refine and clearly articulate and explain otherwise clouded "design rationale." It is undoubtedly clear that the Board supports less rigid design control measures, but its approach to evaluating the adverse impact of design projects nullifies its efforts to allow for more flexibility in design. Overall, this adjudicative process appears to balance private and public interests but while doing so may not lead to the best design solution.

The remainder of the paper has five parts. The first part goes into the details of the OMB, its origin, functions, and its decisionmaking process. The second part details six case studies. It briefly discusses the design issues involved in each case, the ideas of the proponents and opponents of the proposals, and the Board's decisions. The third part presents findings based on the analysis of these cases. The fourth part evaluates the design quality of the projects using City of Toronto's Urban Design Handbook as a yardstick. The fifth part closes the paper with some conclusions and recommendations for further studies.

The Ontario Municipal Board

The Ontario Municipal Board is unique in Canada because of its unusual degree of regulatory authority over planning matters in comparison to similar tribunals in other provinces. Since its existence, it has played a decisive role in overseeing planning in Ontario. The Board considers appeals against all land use planning decisions made by municipalities and local boards under the Ontario Planning Act. It has the authority to approve or reject those decisions or substitute its own decisions. Its decisions are final and not subject to judicial review, except on questions of jurisdiction or law.

Every province in Canada has statutorily codified processes for appeal local governments' design and planning decisions. With the exception of British Columbia and Quebec, all other provinces have provincial boards that have jurisdiction to hear appeals of land use planning decisions made by municipal councils, local or regional planning authorities, committees or boards. Saskatchewan Municipal Board, Prince Edward Island Regulatory Appeals Commission, Nova Scotia Utilities and Review Board, and New Brunswick Provincial Planning Appeal Board are just a few of these provincial boards. The nature of these appeal boards' decisions and the extent of their authority on land use planning issues vary significantly between provinces. Unlike the OMB, all other provincial boards have limited jurisdiction over planning matters. Similarly, few states in the U.S.A. make use of a state agency to review local planning or design decisions and those agencies that exist have limited roles, for example, the Land Use Board of Appeals of Oregon. The main difference in jurisdiction among the boards is based on whether the appeals are necessary only on the grounds of errors in applying the rules of natural justice, perception of impropriety, or lack of due process, or whether the appeals could be made simply because appellant happens to disagree with the local government's decision.

The OMB began as the Ontario Railway and Municipal Board (ORMB) created in 1906 to regulate rapidly growing municipal street railways in the province. But as the railways grew, so did the cities. During the depression years of the late 1920s and early 1930s, it became necessary for the ORMB to oversee and regulate financial matters, such as debt consolidation of municipalities, which were teetering on the edge of bankruptcy. By 1932, the ORMB was granted a wider jurisdiction over municipal affairs when managing street railways were no longer a major concern.

In the current provincial administrative structure, the OMB comes under the administrative authority of the Ontario Ministry of Municipal Affairs. But the Board is considered independent of the Ministry and is responsible to the Ministry only in purely administrative matters. The Board now consists of between thirty and thirty-five members, all appointed by the provincial government for three-year terms with the possibility of reappointment. Initially, lawyers were the predominant players on the Board, but now accountants, engineers, urban planners, public administrators, citizen activists, and local politicians are active members. The members choose a chair and several vice-chairs among themselves.

The OMB exercises jurisdiction under more than 100 public and private statutes pertaining to municipal matters. However, most of its hearings have been about planning-related matters under the Planning Act. These include appeals relating to Official Plans, zoning by-laws, interim control by-laws, minor variances, subdivision plans, and severance among other matters derived from the Planning Act. They may also include designs, urban designs, and other design-related details of proposed developments. Appeals to OMB in Toronto can originate in the following four ways (refer to Figure 1):

1. an applicant may file an objection to the City does not render a decision on a rezoning or Official Plan amendment within 90 days of the receipt of the application;

2. an individual or group may file an objection to the Committee of Adjustment's decision on a minor variance;

3. an applicant may appeal the City Council's decision on a rezoning or Official Plan amendment application; and

4. the Ministry of Municipal Affairs, which approves Council's decision on Official Plan amendments, may choose to refer the amendment to OMB. However, as of 1998, only the new Official Plan, not amendment, goes to the Ministry for an approval.

[FIGURE 1 OMITTED]

The Board functions in a court-like manner within the operative and legislative parameters defined in its enabling legislation called the Ontario Municipal Board Act. In the absence of clear directives from the Province, most policies pertaining to rules of procedure and approach to decision-making are internally developed and applied. To conduct hearings across the province, it employs panels of one to three members. The hearings are open to the public and frequently are adversarial in nature. The decisions are based on the evidence and the arguments presented at the hearings. The evidence and the presenters are subject to cross-examination. Legal counsel may (and frequently does) represent petitioners to the OMB. They may call witnesses and presenters to testify. Conducting pre-hearing conferences has become common practice of the board members because it allows them to gain some idea of the issues to be addressed and to determine the manner of conducting hearings. In the recent years the Board has increasingly used mediation as a way of resolving disputes without full hearings.

OMB hearings are based on two important principles: natural justice and de novo. Natural justice includes the concept that all parties of a dispute, and all those who will be affected by a decision, have a right to be heard. The OMB provides that opportunity so that proceedings are less like a court of law and more accessible to citizens, but it has yet to shed the formal court-like setting entrenched since the creation of ORMB. The other important tenet of the Board--de novo--means that each case is treated as a new consideration of the facts, applicable laws, and by-laws and/or regulations. Although the Board strives for consistency, its decision-making is not bound by previous Board decisions. It is free to decide a matter on the basis of the unique facts and circumstances of each case.

More than 6,000 cases come to the OMB every year. Less than 3 percent are heard and decided (Chipman, 2002). The remaining cases are withdrawn or settled before a hearing takes place. Among the cases decided between 1995 and 2000, only a fraction pertained to design or design-related issues. According to Chipman (2002), only 19 percent of 201 cases in his research sample decided between 1995 and 2000 had some element of urban design; two-thirds of these received approval from the Board. The applications considered were predominantly residential in nature (half were of a "minor variance (4)" type) and involved residential owners seeking approvals to build. Neighbours opposed almost three-fourths of these applications.

Case Studies

This study looked at six cases decided in the last decade. All the cases are located in the Toronto area and have significant design components. The cases were carefully selected from the compilation of OMB cases in the QuickLaw database, in consultation with several OMB members, a senior planner in a municipal law firm, and an experienced urban designer in a leading urban design firm in Toronto. The cases selected deal primarily with design and urban design matters. Three (Bloor and St. George, Yonge and Eglinton and Etobicoke motel strip) were high-profile and highly contentious cases. The other three projects, although contentious, were similar in terms of their location, context and type. These three were included to compare the OMB decisions and look for any inconsistencies in decision-making and in the reasons provided. Figure 2 explains the locations of the projects.

[FIGURE 2 OMITTED]

All the chosen cases were rezoning and Official Plan amendment appeals. With exception of the Etobicoke case, all cases were appeals made by developers against the Toronto City Council's decisions on the proposed Official Plan and Zoning amendments. Among the six cases, at the time of writing this paper, two (Bloor and St. George and Etobicoke Motel Strip) are under construction while one (Minto) is yet to start.

The Board approved all the appeals; however, in some cases, it asked for some modifications in the designs. Table 1 presents a summary of the projects proposed, the parties involved, and the decisions rendered. Here is a brief description of the each case.

Yonge and Eglinton (Minto Case)

The Minto case, named after the Minto condominium development, is one of the most controversial OMB cases in the recent years. This case centred on a developer's appeal of the residents' opposition to the increase in the permitted density of the Yonge-Eglinton area, one of the busiest intersections in Toronto. The proposal entailed the construction of two residential/retail buildings, one 47 storeys and one 38 storeys designed by the world-renowned architectural firm, Chicago-based Skidmore, Owings and Merrill, along Yonge Street, a major thoroughfare in the city (see Image 1). Among almost twenty issues ranging from traffic to shadow impacts, concerns about height and density became the two most contentious topics.

While the City supported the developer's revised proposal through a negotiated settlement, three local residents' associations opposed the proposal. The neighbours considered the towers inappropriate to the site because of the high density, height, and the resulting externalities such wind, shadow, and sun. In their view, the development was going to seriously harm the quality of life of the surrounding low-density residential neighbourhood.

The Board approved the developer's requested increases to height and density on the grounds that the proposed heights were in consonance with the existing landscape of tall buildings in the vicinity. Certain parts of the Board's ruling were significant from an urban design point of view. They reinforced the growing importance of urban design in land use planning evaluation. In their landmark ruling, the Board, first time ever, concluded that building mass is more important than density.

Bloor and St. George

The University of Toronto, one of the premier educational institutions in Canada, requested an amendment in Toronto's Official Plan and Zoning Bylaw to increase the permitted height at the northeast part of the campus. The proposed student residence was meant to satisfy the growing need for student accommodation on the campus. The contentious element in this case was the 13-storey tower at the northeast corner of Bloor Street West and St. George. The tower defied height restrictions allowed in that area, but complied with the density allowance (see Image 2).

The major opponent of this proposal was the Bata Shoe Museum Foundation located across the street. The Foundation was concerned with how the tower, a new gateway to the University of Toronto, would create shadows and lighting issues for the museum. In addition, there were other issues brought up at the hearing related to shadow impacts on the street and the adjacent buildings, uncomfortable pedestrian conditions, and the corner treatment of the proposed building. Convinced that the proposal represented good planning and generally had regard for the City's urban design guidelines, the Board approved the proposal without any modification.

Etobicoke Motel Strip

This case involved the restructuring of land parcels and the re-designation of land uses on a long (almost a kilometre) 50-acre (20 hectare) strip of waterfront land along Lake Ontario between the Humber River and Mimico Creek in the former City of Etobicokc (now a part ofthe City of Toronto). This strip of land, commonly known as the "Etobicoke Motel Strip," was initially a hodgepodge of motels, single-family homes, a restaurant, and a service station. To revitalize and redevelop the area, the City developed a plan for the area in 1986, commonly known as "Etobicoke Motel Strip Secondary Plan."

In 1989, the City's plan came under attack when the provincial Minister of Municipal Affairs and Housing challenged it by expressing a "provincial interest" on the Motel Strip land. Initially, the Province could not articulate its interest clearly. But almost three years later, the Province clarified its interest, which centred on concerns about the built form of the new development and public access to the waterfront amenities. To articulate and refine its interest further, the province hired an architectural firm to develop a set of design guidelines. The Province's concept was not well received by parties to the case. The scheme was oblivious to the unique characteristics of the site. It included mostly "low rise 'barrack like' buildings on a grid block pattern [that paid little] attention to the existing views, waterfront and the transportation corridor." (OMBD 656, 1992)

In response to the Province's design proposal, the City hired an urban design consultant to develop a competing set of design guidelines to satisfy the provincial interest while keeping the goals initially developed for the area. The City's concept incorporated a broad range of activities including high-density residential, retail, public, commercial, and institutional uses. The accompanied urban design guidelines maintained the views of the waterfront from the proposed built form while dedicating and protecting the public realm along the waterfront as demanded by the Province. But to maintain public access to the waterfront, the plan required the transfer of a substantial portion of private lands (almost 75m in depth and almost a kilometre long) to public hands.

Despite its several positive aspects, the Plan was inherently rife with issues: the purpose, use and function of the proposed waterfront amenity strip was not clear; the ways to achieve land acquisition were vague; and a formula that adequately compensated individual property owners for dedicating their lands for the public use did not exist. Overall, the Board was satisfied with the Plan but suggested some modifications based on the concerns raised by all the interested parties involved--the individual landowners, the City, and the Province. The modifications included some of the highly strict design standards from the design guidelines such as height limits, "sky exposure planes" and density levels based on minimum lot frontage.

The Yonge condominium building cases

These were three cases along Yonge Street in Toronto that were similar in terms of location, context, development, and amendments. The reason for the selection of these cases was to discover inconsistencies, if any, in the OMB decisions. All three came to the OMB in the same year with a request to increase the heights and densities permitted in the Toronto Official Plan and the zoning by-law. The proposed developments saw high-rise condominium buildings with retail along Yonge Street but built within the low-rise, single-family neighbourhoods. Building height, massing and shadow impacts on the surrounding areas, and access to the buildings were the main concerns of opponents. A brief description of each case follows.

Yonge and Wanless

This proposal involved the redevelopment of two sites on both sides of Yonge Street and the replacement of a car dealership, a non-conforming use. A seven-storey mixed commercial-residential development was planned for one site; a six-storey mixed commercial-residential building with townhouses at the back was planned for the other. For the City, the heights and densities of the proposed development were excessive. It also objected on the grounds that the massing of the built form was out of scale and context. The proposed entry to the building from a local residential street was the most contentious part of the proposal for the City and the local residents.

The Board approved the proposal for both sites and did not consider the alternative put forth by the City. It felt that the rezoning of the land from car dealership to mixed commercial-residential would reinforce the residential character of the two local residential streets. It appreciated that the proposed building mass was scaled to a size appropriate for the adjacent residential developments as it moved away from Yonge Street (see Image 3). The Board found that the relief in height, setbacks, and angular planes asked by the developer did not significantly impact sunlight and privacy on adjacent residents. The Board was also satisfied that the landscaping proposed by the developer mitigated any impact on traffic.

Yonge and Roxborough

This development proposal was strongly opposed by the local residents and ratepayer associations on the grounds that the height, density, and use of the building would diminish the high quality of their environment. The City, on the other hand, concerned about the proposed height, not the proposed use of the area.

The Board approved the proposal for several reasons including the fact that it had some meritorious features like horizontal and vertical recessions and brick masonry (see Image 4). As well, the height was reduced from the initial proposal. The Board felt that the proposed building would not result in a shadow impact any different from the current impact and that the concerns of the opposition were not unique to this site. The Board further stated that the mass transit corridor to the east of Yonge Street mitigated the impact ofthe proposed building on the surrounding neighbourhood.

Yonge and Alexandra

The City and the local residents opposed this proposed condominium building because they felt that it was an encroachment on a low-density residential area. They believed that the proposed building would degrade the character of the entrance of Yonge Street from Alexandra Boulevard. They were also concerned that the height of the building would cause a shadow impact on the surrounding area.

The Board was satisfied with the proposal. It concluded that the increase in height would not have a major shadow impact. It ruled that the proposed building complied with the angular provisions arising from the main street requirements by terracing the heights to mitigate the mass (see Image 5).

Table 2 presents a snap shot of the design issues involved in all the six cases. Height, density, massing, shadow, the relationship with the surrounding buildings, and traffic were found most contentious.

Analysis

The analysis of OMB decisions in the above cases and related documents reveal five characteristics of its decisions. They are discussed in the following five sub-sections. Among the six decisions rendered by the Board, the Minto, the Etobicoke motel strip, and the Bloor and St. George cases were detailed and much better explained and articulated. They inform us more clearly about the Board's stand and handling of various urban design issues. In almost all the cases, the recurring urban design issues were about built form, massing, height, and the resulting impacts such as shadow, sunlight, wind, privacy and traffic on private and public properties.

How does the Board evaluate design?

The Board's way of evaluating a design is based on the design's adverse impact on the public and private realms. The harm a design causes could be actual and measurable, or it could be a perceived harm to private and public properties. An adverse impact of a proposed development, for instance, could take the form of shadows that fall on adjacent private properties or create uncomfortable pedestrian conditions on a public street.

Unfortunately, there is no written policy or guidance from the provincial government about how to evaluate the impacts of design. The Board, therefore, informs its decision using municipal urban design documents, such as Toronto's Urban Design Handbook for any specific design guidelines, Secondary/Part II plans for design principles and approaches, and municipal Official Plans for design policies. To evaluate these impacts, in one of the cases, the presiding Board member paid a rare visit to the site in question. Sometimes the Board allowed computer modelling techniques to depict shadow conditions at different times of the day to calculate the shadow impacts. Generally, however, the Board relied on the testimony of urban design experts and detailed technical studies to make decisions. Invariably, the Board reacted positively to the design measures proposed to mitigate certain adverse impacts even though the effectiveness of those measures were not proven or evaluated.

In its decisions, the Board often refers to "good" urban design but never explains what it means by "good" urban design. One can extrapolate from the decisions that good planning or good design means conformity with the approved planning policies, minimum adverse impact and increased compatibility with the surroundings (Chipman 2002). However, these criteria are open to multiple interpretations and have been applied in vastly different ways.

Practicing urban designers in Toronto along with American scholars like Scheer (1994) believe that urban design issues cannot always be "measured". Toronto urban designers consider Board's design decisions, which rely heavily on impact assessments, to be inherently flawed. One urban designer said that in a civil society we follow a prescribed etiquette. Urban design is good etiquettenits impact cannot be "measured." The employment of adverse impact tests fails to evaluate certain qualitative and experiential--though quintessential--aspects of the urban design, such as building mass, view, privacy and pedestrian's comfort. Even when the test is employed to study shadows, noise, traffic volume and so on, we don't know whether it contributes meaningfully to create a better urban design. Although the Board's regular use of adverse impact tests may have produced consistent outcomes, this test minimizes the Board's ability to address broader, more diffuse outcomes that may impinge upon public interest and policy concerns.

What approach does the Board use while making design decisions?

In practice, the Board is solely concerned with the design issues raised by the involved parties. Although the Board has frequently asked for modifications, it never proposes alternatives to the two proposals under consideration. This approach severely limits the Board's ability to make decisions on design issues. Also, because the Board focuses only on impacts on the parties before it and generally considers each application on its own merits, it rarely addresses the question of the cumulative impact of similar applications.

OMB's disregard for alternative designs places it far apart from Vancouver's design review panel. This is a lost opportunity for the OMB to do a better job deciding design issues. The approach inhibits design innovation or creativity. It is important to note, however, that unlike Vancouver's review panel, OMB follows an adversarial process to evaluate measurable, potential and perceived harms. To add to this, the OMB's current statutory mandate prohibits an early intervention in designs, nor does the Board have a mechanism to intervene on a priori basis, which is agreed among scholars to be key to a successful urban design.

Recently, the Board had made attempts to clarify how it views urban design, explain a number of contentious urban design terms like "compatibility," and determine a position on important design issues like whether mass supersedes density. Interestingly, although these issues remained unexplained for a long time, only recently some have been clarified in detail. Urban design, as the Board explains, is both a process and an end product. It says that from an approvals point of view, it is desirable to know what the product will look like. It considers the urban design process to be a means for evaluating the relationship of a design and its surroundings. Despite some clarity over its stand on urban design, the Board's view may seem myopic and perhaps even outdated to urban design scholars and practitioners.

In the Minto decision, the Board clearly stated that building mass is a more important consideration than density. It concluded that through bold and thoughtful design, the end product can address built form principles of City's official plan. The Board asserted that a restriction on density does not necessarily lead to a good urban design but a "good" design approach may alleviate the impacts of density. In the Yonge and Wanless case, the Board clarified the meaning of "compatibility" by saying that it should not be misconstrued as "sameness" in the built form and density. Compatibility, for the Board, achieves a proper relationship between new and existing designs through, for instance, transition of height or variation of built form, scale and massing.

How does the Board treat designers and designs?

In all the cases examined in this study the OMB consistently recognized the need to allow designers' creativity and flexibility to develop the built form. To achieve this, it loosely applied the language in Toronto's Official Plan and other planning policy documents to test the design quality of a development project. In design matters it looked for a "close compliance to the existing official plan and zoning requirements" and not a "strict compliance." For instance, in the Bloor-St. George decision, the Board says, "the literal reading of these sections [in the Official Plan] and the guidelines is simply too narrow and legalistic an approach to judge this proposal. The wording of Official Plans should not be seen or interpreted so as to become strait jackets to good planning." It further adds, "The urban design criteria are not intended to stifle creativity or unfairly limit flexibility but result in a set of expectations of a property." in the Etobicoke case, the Board says, "The introduction of very strict design standards with height limits and sky exposure planes within the test of plan is most inappropriate." It further ruled, "While most of numeric standards should be removed, they should be replaced with stronger policies and performance standards that articulate the principles behind the standards and that require a heavy onus on Council to have regard to the detailed guidelines." This laissez-faire approach is welcoming and may be of some help to achieve design excellence. However, its basic approach to look for adverse impact goes counter to the flexibility that it espouses.

The cases in hand reveal that the Board tended to permit more height and density than the municipal stipulations by loosely interpreting and applying the wording of the Official and Secondary Plans. In the absence of any significant adverse impact, the Board paid more attention to urban design experts and invariably approved the higher density and height desired by the developers. This, when compared with the historical data, shows a shift in its approach of assessing development projects. The highest ever rate of development approvals (Chipman 2002) is testament to this change in thinking. Chipman (2002) says that despite an insufficient number of recent decisions in his dataset, the Board appears to now pay less attention to the protection of low-density residential neighbourhoods, which it guarded vigorously in the past. Perhaps this shift in approach is to bring the OMB in line with the need to intensify, infill and create a compact form of cities.

How does OMB tackle public and private interests?

The cases indicate that the OMB is sensitive to both public and private interests. Balancing these interests within the context of the larger public interest has been to be central to its decision-making. In almost all the cases, the Board paid close attention to the rights of private citizens and gave full cognisance to their discomfort with new developments. It also strove to find a balance between the public and private rights.

This balancing act was delicate and tricky, particularly in the Etobicoke case, where the Province, on behalf of the public, declared its interest to have a substantial portion of private lands transfer to the public domain. In its final decision, the Board said, "Any consideration of the public interest in a democratic society designing high standards of government and justice must be all-encompassing. Regard for the general [public] good must include and be sensitive to private and minority rights amid the sometimes conflicting policies and public goals to which the local municipality, region and province aspire." While the Board endorsed Province's idea of dedicating a large chunk of land to the public domain because of greater public benefit, the Board acted as a guardian to ensure that any new policies and policy amendments with respect to the land transfer involved the owners of those properties and took their interests into account. Eventually, owners were well compensated. On the density transfer and the requirement of minimum 70 metres frontage issues, the Board attended to the concerns of each property owner to ensure that none were short-changed in density transfer or in redevelopment entitlements as a result of a blanket set of design guidelines.

While the Board allowed the opportunity to all the parties to be heard, its balancing act may not have produced the best built form. For instance, the decision to remove the 70 metres frontage minimum requirement from the Secondary Plan to achieve certain density, height and massing now poses a serious threat to the integrity of the whole built form of the Motel Strip. Consequently, lots with less than 70 metres frontage have almost the same development rights as others. This is leading to overcrowding, and difficulty in providing adequate services (see Images 6 and 7). The resulting built form is riddled with sun, light, and privacy issues.

What was Board's impact on the way design is presented?

The Board decisions suggest us that the review process helped the parties to develop and strengthen their "design rationale," which was unclear in the proposal initially submitted. The Board's adjudication process allows them not only to clearly articulate the rationale and but also to refine it. The product of design in itself cannot explain what initiated its design. However, a design rationale is valuable if review committees are to make fair and equitable decisions. It allows everyone with different interests, values, and disciplinary backgrounds to understand the artefact better and to create conditions for a meaningful dialogue between all stakeholders. What is not clear is whether the explanation of design rationale eventually leads to a better built form.

Post-construction Evaluation of the projects

The evaluation of design quality is conducted to ascertain whether the cases approved were of good design quality and whether they added value to the built environment. The quality of designs was evaluated against the principles set forth in the City of Toronto Urban Design Handbook and secondary plans, where available. Table 3 describes the extent to which various urban design elements outlined in the Handbook and secondary plans were addressed in each case. The design elements were assessed and classified under three categories--Very Well Addressed, Addressed to Some Extent, and Not Addressed. The evaluation was performed by a careful and systematic visual observation of the projects during repeated site visits, a careful reading and understanding of the drawings presented to the Board, and a thorough examination of the testimonies and opinions presented in support of and against the design issues raised.

Clearly, the designs incorporated several design elements of the Urban Design handbook. In particular, building massing, provision of open spaces, and position of buildings on the site relative to streets received most attention from the property developers. The building form and massing exceeded the expectations. However, the creation of a comfortable pedestrian environment did not receive the same kind of consideration. Little or no street amenities, such as trees, benches, planters and signs, were provided. The provision of weather protection devices, such as colonnades, canopies, and arcades, as part of the design was also missing. Neither the City nor the public raised any of these concerns during the hearings.

The Board's approach considers the positions of only two groups--the applicants and the opponents to the application. This approach fails to consider the interests of non-represented persons or groups, or aspects to public interest not raised by the parties. Larger public issues, such as social housing, weather protection devices, and enhance pedestrian environments, remain unaddressed. This exclusionary practice, as mentioned earlier in the paper, severely curtails Board's ability to consider the impacts on broader public policy, which is at odds with its mandate.

The cases reveal that urban designers, often appearing as expert witnesses before the OMB, describe the designs in question using appealing metaphors. This flowery language appears to influence the Board's final decision. In reality, the metaphors are incorrect descriptors of the actual designs. Case in point is the Bloor and St. George project. The proponents of the project urged the Board to consider the building design as a gateway to the University of Toronto. The building was described as a "glass lantern," a "sculptural" piece and a "jewel" that would mark the entry to the University campus. The gushing descriptions urban designers failed to characterize the actual nature of the building. The completed building looks like any other tall building on any intersection in Toronto. Besides its height, the building has no feature that could mistake it as a jewelled gateway to a premier institution like University of Toronto (see Image 2).

Conclusions

Despite a limited set of design-laden cases, this study answers questions raised earlier regarding the claims of OMB critics, the characteristics of OMB decisions, and the factors that influenced the Board's decisions. It also clarifies how the OMB evaluates designs, how it tackles public and private interests and the ways it deals with designers. The post-construction evaluation of the projects provides answers to the questions around the design quality of the buildings adjudicated by the OMB.

The study makes abundantly clear that the provincial decision-making model such as that of the OMB is not the best model for judging urban design. Despite the negative perceptions and allegations levelled against the OMB, the study suggests that Board's urban design decisions in these six cases have been convincing as far as impact assessment is concerned. Although the Board constantly looked for a measurable harm done by a proposed development as a test for its design quality, it did take into account individual concerns while assessing the larger public benefit and allowed greater flexibility to designers. In an attempt to balance the interests of public and private citizens and to keeping a long-term vision, the final decision may not have led to the best design and, at times, outraged the local residents. The Board's approach to not seek design alternatives may deter efforts to achieve "good" urban design. Clearly, the approach allows little or no room for nurturing or fostering design excellence. The post-construction evaluation of the projects suggests that although the products of OMB's decisions generally had good building form and massing, they were seriously devoid of public amenities stipulated in municipal plans.

From the findings of the study, one can make two broad assertions about decision-making in urban design: 1. Disjunction between process and outcome and 2. Inherent problems in evaluating design quality. It is both ironic and well-known that planning processes which are democratic, fair and just, do not necessarily result in good planning or design outcomes (Scheer, 1994). In the cases studied here, several opponents to the projects, mostly by the local residents, could be construed as a result of the Not In My Back Yard syndrome or fear of projects setting precedence for similar high-rise developments in the future. However legitimate these concerns are, the neighbours' opposition has been more a matter of personal interest, mainly to protect their private property values from any intrusions, rather than a genuine spirit of public interest. Historically, we see that the ruthless authoritarianism of Haussmann in Paris and design autocracies elsewhere in the world have produced better quality urban environments than designs created by fair, open and just processes. While OMB attempts to provide a fair decision-making process, it often overlooks design issues.

The second assertion is that perhaps, the subjective nature of design makes its evaluation inherently problematic. For this reason, the assessment of design becomes particularly difficult in an adversarial situation, much more so when it is set in a quasi-judicial setting. Invariably, in order to achieve objectivity in such a context, design issues are reduced to impact assessments. However, it is abundantly clear that the tendency to use objective criteria like impact assessment is not an effective way of evaluating designs. According to Scheer (1994), "design excellence is not easily defined by hard and fast principles and is not subject to objective criteria, and judgments are necessarily dependent on the aesthetic response to singular, particular case, not a universal abstraction." In the rush to attain objectivity, the important questions get scuttled or are never asked: Shall the OMB decision only concern itself with the contextual issues like massing and relationship to streets and leaving meaning and style alone? Shall OMB view the building as an object, to be judged without reference to its meaning or use or place in the larger site? What can possibly serve as criteria for judgment?

These questions could be answered if there is a decision-making entity that has the expertise in design and is dedicated to safeguarding the design quality of the built environment. Such an entity could be a design review committee. Although rife with endemic problems in the United States, the design review committee of Vancouver has proven its usefulness in reviewing designs. Perhaps such a decision-making model could be introduced in Ontario to serve as the gatekeeper of design in Ontario cities. Such a model requires a change in the provincial Planning Act that would allow municipalities to institute such committees, like Local Architectural Conservation Advisory Committees established to safeguard heritage properties. Bill 26, the provincial legislation currently being discussed to reform Ontario's Planning Act, can encourage the role of design review committees. The Bill can allow municipalities to offer development bonuses if the developers agree to go through design review committees and abide by their design advice.

Although out of the scope of inquiry of this study, Board decisions may have influenced how urban design is viewed, practiced and adjudicated by municipal and private sector planners, urban designers and architects. They may have also triggered some administrative and operative (and possibly ideological) changes in the urban design and planning services of municipal governments. These have not been answered in this research but could be subject of future study. A future study can also compare a large sample of OMB design decisions with the decisions made by design review panels in provinces such as British Columbia and Quebec. This idea could be further extended by assessing the impacts of the decisions of these two entities on the built environment of their respective communities. Like the studies of Stamps (1994, 1997) and Stamps and Nasar (1997), empirical studies could be used to assess the public's view on the projects approved by the two entities.

Acknowledgements

The research was supported by Ryerson Internal Social Sciences and Humanities Research Council of Canada Fund and the Ryerson Faculty of Community Services Scholarly Research and Creative Fund. An earlier version of the paper was presented in the joint ACSP-AESOP Congress in Leuven, Belgium and a short version appeared in the Ontario Planning Journal. David Gordon's (of Queen's University) valuable comments at the Leuven Congress were helpful in revising the paper. The author acknowledges the help of his research assistants, Audrey Alemao, Carmela Liggio, Karima Esmail and Brooke Sykes, who devoted considerable amount of time in collecting data from various sources. He particularly thanks Robert Price for his editorial comments. The author appreciates the comments of the two anonymous reviewers.

References

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Notes

(1) NCC is a crown corporation created to develop and maintain the nature and character of Ottawa, the capital of Canada.

(2) WCA is a creature of the Province of Saskatchewan, mandated to enhance the character of Regina, the capital of Saskatchewan.

(3) Design review is an administrative mechanism to control the design quality of proposed additions and alterations to the built environment. It is a formal, structured and often mandatory process that is administered by local governments and, usually, conducted by an appointed group of public officials and local residents. (Kumar, 2003)

(4) Minor Variance is a variance to the provisions in the zoning by-law if the proposed project conforms to the uses permitted but do not conform to all the zoning provisions.

Sandeep Kumar

School of Urban and Regional Planning

Ryerson University

Table 1: A summary of the cases

Cases Nature of OMB Policy Content
 Applications Decision

Yonge and Two high rise Approved Yonge--Elington
Elington Residential Part II plan, Toronto
(Minto Buildings Official Plan 1993
Case)
Bloor and Students' Approved City's official
St. George Residence Plan, University of
 Toronto
 Part II Plan
Yonge and Residential Approved Toronto Official Plan
Wanless building Yonge-Lawrence
 Part II Plan
Yonge and Residential Approved Toronto Official Plan
Roxborough building 1993
Yonge and Residential Approved Toronto Official Plan
Alexandra building 1993, Yonge-
 Lawrence Part II Plan
Etobicoke Secondary Approved Etobicoke Official
Motel Strip plan with Plan, Motel Strip
 modifica- Secondary Plan
 tions

Cases Opposition Support Current
 Status

Yonge and Residents' Developer, Under
Elington Association City construction
(Minto of Toronto
Case)
Bloor and Bata Shoe Applicant Construction
St. George Museum (University completed
 of Toronto),
 York Club,
 City of
 Toronto
Yonge and Residents, Developer Construction
Wanless City of completed
 Toronto
Yonge and Ratepayers' Owner Construction
Roxborough Association, completed
 City of
 Toronto
Yonge and Residents, Developer Construction
Alexandra City of completed
 Toronto
Etobicoke Christie Former City Under
Motel Strip Brown, of construction
 Residents, Etobicoke,
 Province of Province of
 Ontario, Ontario
 Former City of
 Etobicoke

Table 2: Urban design issues challenged in the cases

 Issues

 Physical Form and Amenity

 Built Form

 Shadow
 Impact
 on
 adjacent
 Nature of private
 propert-
Cases Applications Height Density Massing ies

Yonge and Two high x x x x
Eglinton rise
(Minto case) residential
 buildings
Bloor and Students' x x x
St. George residence
Yonge and Residential x x x
Wanless building
yonge and Residential x x x x
Roxborough building
Yonge and Residential x x x x
Alexandra building
Etobicoke Secondary x x x
motel strip plan

 Issues

 Physical Form and Amenity

 Built Form

 Relationship The Pedestrian
 of new Environment
 buildings to
 their Built Safety
 Form Building in Pedestrian
Cases context Setback Design Circulation

Yonge and x x x
Eglinton
(Minto case)
Bloor and x
St. George
Yonge and x
Wanless
yonge and x
Roxborough
Yonge and x
Alexandra
Etobicoke x
motel strip

 Issues

 Physical Form and Amenity

 Quality in
 the Public
 The Pedestrian Environment Realm

 Wind Maintaining
 Sunlight on Speed and
 Parks and Levels and Improving
 Pedestrian Pedestrian Pedestrian the Public
Cases Amenity Streets Comfort Realm

Yonge and x
Eglinton
(Minto case)
Bloor and x x x
St. George
Yonge and
Wanless
yonge and x
Roxborough
Yonge and
Alexandra
Etobicoke
motel strip

 Issues

 Physical Form and Amenity

 Reinforcing the City Pattern

 Location of
 buildings
 with
 Reinforcing respect to
 the Pattern Streets and Areas of Prominent
 of Natural Open Special Areas and
Cases Features Spaces Identity Sites

Yonge and x
Eglinton
(Minto case)
Bloor and x x x
St. George
Yonge and
Wanless
yonge and
Roxborough
Yonge and
Alexandra
Etobicoke x
motel strip

 Issues

 Physical Form and
 Amenity

 Reinforcing the
 City Pattern

 Views Precedent
 and for future
Cases Heritage Vistas development Traffic Parking

Yonge and x x x
Eglinton
(Minto case)
Bloor and x x
St. George
Yonge and x
Wanless
yonge and x x
Roxborough
Yonge and
Alexandra
Etobicoke
motel strip

 Issues

 The Environment Housing Access
 to site
 Land use Afforda- from a
 Compati- ble local
Cases Parking Standards bility Housing street

Yonge and x
Eglinton
(Minto case)
Bloor and
St. George
Yonge and x
Wanless
yonge and x
Roxborough
Yonge and
Alexandra
Etobicoke x x x
motel strip

Note: Privacy, separation and overlook conditions of the built form
were not challenged in any project. Residential Intensification was
also not an contentious item.

Table 3: The extent to which urban design elements addressed by the
projects

 Location and organisation of Buildings relative to
 Streets and Open Spaces

 Setbacks Open Midblock
 from Space in Pedestrian
 Cases Street Corners the Block Passage

Yonge and
Eglinton
(Minto Case) 1 not clear not clear 1
Bloor and St.
George 2 1 1
Yonge and not
Alexandra 1 1 2 applicable
Yonge and not
Roxborough 1 2 2 applicable
Yonge and not
Wanless 1 2 1 applicable
Etobicoke
Motel Strip 1 1 1 1

 Location
 and
 organi-
 sation of
 Buildings
 relative
 to
 Streets
 and Open Building Massing
 Spaces
 Harmony with
 Building Street Neighbouring Tall
 Cases Address Enclosure Development Buildings

Yonge and
Eglinton
(Minto Case) 1 1 1 2
Bloor and St.
George 1 1 2 2
Yonge and
Alexandra 1 1 1 1
Yonge and
Roxborough 1 2 1 1
Yonge and
Wanless 1 1 1 1
Etobicoke
Motel Strip 1 1 2 1

 A Comfortable and Usable Pedestrian
 Environment
 Building
 Massing Pedestrian
 Amenity
 Light, adjacent to Pedestrian
 View and Streetscape the Amenity in
 Cases Privacy Improvement Sidewalk the Block

Yonge and
Eglinton
(Minto Case) 1 1 not clear not clear
Bloor and St.
George 1 not clear not clear 1
Yonge and
Alexandra 1 3 3 3
Yonge and not
Roxborough 1 2 1 applicable
Yonge and
Wanless 1 not clear 1 1
Etobicoke
Motel Strip 3 2 1 1

 A Comfortable and Usable
 Pedestrian Environment Plant-
 ing,
 Pedestrian Seating Landscaping
 Amenity in Weather and for Surface
 Cases the Block Protection Lighting Parking Lots

Yonge and
Eglinton
(Minto Case) not clear not clear not clear not clear
Bloor and St.
George 1 not clear not clear Not applicable
Yonge and
Alexandra 3 2 3 Not applicable
Yonge and not
Roxborough applicable 2 3 Not applicable
Yonge and
Wanless 1 2 3 1
Etobicoke
Motel Strip 1 3 1 1

 Public
 Cases Art

Yonge and
Eglinton not
(Minto Case) clear
Bloor and St. not
George clear
Yonge and
Alexandra 3
Yonge and
Roxborough 3
Yonge and
Wanless 2
Etobicoke
Motel Strip 2

1--Very well addressed

2--Addressed to some extent

3--Not addressed