OMB Hearing 

OMB hearing of challenge to City of Toronto drive-through bylaw.

The OMB heard testimony for six weeks, Monday to Thursday, from 10 am to 4 pm from September 15 to October 24, 2003.

As participants, HNRI members were not represented by a lawyer, and so were not obligated to be present each and every day of the trial. However, several attended throughout, to let the OMB know that citizens of Toronto want the Drive Through Bylaw that was passed by City Council in September 2002 to stand.

Thu 23 October - Fri 24 October 2003: - notes not available -

Wed 22 October 2003:

Susan Spiegel is acting-president of Hillcrest Neighbourhood Residents Inc., and a licensed Architect, who has been an active member of the fight against the proposed McDonald's drive-through at St. Clair and Christie. Susan testified that a survey showed 15 potential drive-through sites on the St. Clair - Oakwood strip alone, and said that she did not want other citizen groups to have to waste as much time and money fighting drive-through proposals as has HNRI.

Susan reported that Toronto's Official Plan says that drive-throughs are not only unsafe on "Main Streets", but incompatible with those locations. She reported that McDonald's ignored the Official Plan, and had deliberately undersized their proposal to avoid the site plan approval (SPA) process, thus removing the City's ability to change the proposal in any significant way. HNRI supports the City Wide Bylaws as it is good planning as well it levels the playing field and allows Owner, City Planners and Residents to have a say in proposals as they are being considered.

Lis Soderberg, HNRI secretary, testified in support of the City's anti-drive-through bylaw. She noted the inherent conflicts between city life and the commerce which are essential for its survival, but commented: "What a relief is is to be able to walk!"

Lis said that the sense of community is eroded by drive-throughs, which are created solely for profit, decreasing local employment, and which encourage transient customers, not residents. Corporations should enhance the communities they serve, not treat residents just as consumers, as "cash cows".

The lone voice of a citizen is seldom heard, but the voices of our collective goups must be: The statements of community associations like HNRI, and especially the voices our elected municipal representatives. The City of Toronto's Drive Through Bylaw was passed at City Council by a vote of 35 to 5, with the support politicians with a wide variety of party connections and from all geographical areas of the city. It should not be overturned by the unelected OMB.

Rhona Swarbrick and Janice Etter of the Pedestrian Planning Network (PPN) strongly disagreed with the comment that "what is good for our corporations is good for city". Janis said that PPN members are not anti car, anti drive-through, anti fast-food, or anti business, but are pro city, with their main interest in "pedestrianism".

Janis noted that what's not good for downtown is also not good for suburbs, because the accepted wisdom of urban experts is "suburban today; urban tomorrow". PPN has surveyed sites of pedestrian traffic accidents, and found that people do indeed walk in the suburbs ... and that's where they get killed by cars!

Rebutting the rhetorical question "How many people really care?", Janis recalled the efforts of Sarah Adler, the late HNRI president, who cared enough to fight against drive-throughs from her death-bed.

Thu 9 October - Tue 21 October 2003: - notes not available -

Wed 8 October 2003: Public Session

Presentations were made by concerned citizens, some with related professional qualifications, all concerned with the reduction in the quality of life that would result from drive-through businesses in their city:

An affidavit was read from the the old City of Toronto's last city planner, testifying that drive-throughs produce greater traffic, reduce pedestrian safety, and are inconsistent with the City of Toronto Official Plan.

The chair of the Toronto Society of Architects urged the Commission to reject the appeal of the City's Drive Through Bylaw, which he felt was fundamental to producing safe and pedestrian-friendly city neighbourhoods.

A policy maker for Toronto Environmental Alliance noted that the very nature of drive-throughs meant they would result in more idling, and asked the Commission to consider the value of air quality and the costs of air pollution associated with drive-throughs.

A professor emeritus of the University of Toronto and former Professional Planner echoed this thought, saying that though drive-throughs clearly make businesses more profitable, they also have uncosted side-effects. All but a few of these "externalities" would be negative, including increased pollution, less safe pedestrian and vehicular passage, litter, noise, etc.

A representative of the fledgling Bathurst / St. Clair Business Improvement Association reported that the BIA's members told her they don't want drive-throughs.

A petition was presented from Bracondale House signed by 58 of the 200 residents of that seniors home on St. Clair Ave. across from a proposed McDonald's drive-through, expressing concern with traffic, noise, air pollution, and decreased safety navigating sidewalks invaded by cars.

Presentations were also made by representatives of other organisations, including the East Beach Property Association and Feet on the Street, as well as by unaffiliated citizens concerned about quality of life in their compact city neighbourhoods.

An important political comment was made that as the City had followed due process in its enactment of the Drive-Through Bylaw, the OMB should should respect the will of the citizens expressed through their duly-elected representatives.

Thu 25 September - Tue 7 October 2003: - notes not available -

Wed 24 September 2003: At the seventh day of the hearing, the city lawyer continued questioning Amelia Floro, a Toronto urban designer, who testified that drive-throughs usually result in more curb cuts, and thus reduce onstreet parking as well as trees and street furniture.

Floro presented her conclusion that the city bylaw limiting drive-throughs to compatible areas, such as those at least 30m distant from residential lot lines, was appropriate, and that drive-throughs were not appropriate in mixed use areas.

The appellants' lawyer's cross-examination of this witness focussed on the specific activities that she performed in support of these conclusions, and noted the absence of detailed logs of those supporting activities.

The appellants' lawyer requested that the the City Planner (Klaus Lehman) provide them with some samples of the 3 bigabytes of material (notes and pictures) that was accumulated in the course of planning the Bylaw.

Thu 18 September - Tue 23 September 2003: - notes not available -

Wed 17 September: At the third day of the hearing the appellants' lawyers cross-examined the city's transportation expert, Mark Steven Lenters. The restaurant industry lawyer took issue with Lenters's claim that some problems with drive-throughs "cannot be mitigated" through good site design, and the bank's lawyer noted that there had been little or no study of drive-throughs at banks.

The city's next witness was Robert Stevens, an acoustic engineer, who disagreed with the witness statement by the appellants' acoustics expert as to the sound levels that would result at a typical drive-through.

Tue 16 September 2003: At the second day of the hearing the City of Toronto lawyer began calling witnesses to support the Drive Through Bylaw:

Klaus Lehman is the City of Toronto planner working on a new master zoning bylaw to replace the multiple inconsistent bylaws of the pre-amalgamation municipalities (e.g. which contain 25 defns of "restaurant", and 5 of "bank"). Lehman testified that drive-throughs are a new phenomenon, a 1990s evolution of the quick service food industry which is not properly considered in existing bylaws. He said that businesses build drive-throughs to increase business volume, and usually ignore their impact on adjacent land use.

Mark Steven Lenters is a traffic engineer who studied traffic patterns in west end Toronto drive-throughs. Lenters testified that queued traffic for drive-throughs leads to conflicts with pedestrians, and also often blocks vehicular access. He found that with drive-throughs pedestrian access was less convenient and more dangerous.

Mon 15 September 2003: At the first day of the hearing, with J. R. Boxman as chair, each side outlined its case, and listed the expert witness that it intended to call.

The City of Toronto lawyer stated that the case is about where a new land-use should be permitted, to which old bylaws of components of old unamalgamated Metro Toronto didn't apply. She said that by excludinq drive-throughs in residential zones the bylaw followed planners' recommendions, and that contrary to the industry characterisation, it was not a "banning" or "down-zoning".

October 1st was designated as the evening session where statements from the general public will be allowed.

11 July 2003: At this second OMB pre-hearing, the challenge by the restaurant and other industries (e.g. financial services) of the City's Drive through Bylaw was heard by judge Madam J. Seaborn. It was decided that six weeks would be reserved for the hearing, which will include statements from various experts on behalf of the City, HNRI and the bylaw's opponents. There will be at least one evening session to allow stmts from the general public.

1 May 2003: With half-a-dozen interested citizens attending, Ontario Municipal Board judge J. Seaborn met with 15 lawyers at an OMB "pre-hearing" to discuss challenges from the restaurant and other industries (e.g. financial services) to the City's Drive through Bylaw.

The City of Toronto lawyer reported that the Scarborough Town Centre had been granted an exemption from that bylaw; the judge agreed to note the intent of City Council in allowing an exemption for that non-residential, high-traffic location.

For the complete text of the decision from J. de P. Seaborn, Vice Chair, click here. (The text of the decision starts on page 6.)

A second pre-hearing was scheduled for 10 a.m. on July 11 at the OMB offices at 655 Bay St.; the actual hearing, predicted to last 6 weeks, is scheduled to start September 15, 2003.

15 July 2002: The Ontario Municipal Board ruled that it could not hear an appeal from McDonald's of the City of Toronto's interim control bylaw regarding drive-thrus on St. Clair until the legal case now before the courts has concluded.

25 April 2002 - Councillor Joe Mihevc (Ward 21, St. Paul's West) expressed dismay at fast-food giant McDonald's decision to challenge the City's Interim Control By-law (ICB), related to its location at 710 St. Clair Ave. West, by taking the City to Weekly court on May 7th, and filing an appeal with the Ontario Municipal Board.

Mihevc said, "They are acting like bad corporate neighbours, ignoring the huge number of community residents opposed to the installation of a commercial drive-thru. This really threatens McDonald's reputation as a good community citizen."

The Council-adopted ICB prohibits drive-thrus on St. Clair Ave. West between Bathurst St. and Oakwood Avenue for a one-year period while city planners study their appropriateness for this pedestrian-friendly urban neighbourhood. Councillor Mihevc said that he had hoped that the Interim Control by-law would have persuaded McDonald's to meet with the greater community, hear their concerns, and negotiate an alternative.

Mihevc said, "By appealing to the courts and Ontario Municipal Board, McDonald's is saying, in essence, that they are unwilling to listen." He added, "Shame on McDonald's. Residents have echoed City planning staff in saying that a drive-thru in the St. Clair-Christie neighbourhood is wrong-headed, and for very good reasons: traffic
congestion, danger to pedestrians young and old, increased pollution, and changing the character of a wonderful, pedestrian-oriented street."

Many residents in the community have staged weekly pickets near the McDonald's located at 710 St. Clair Ave. West since word of the drive-thru plans became public. A large community rally is planned for April 27th at 11:30 a.m. to reiterate the neighbourhood opposition.

Mihevc concluded, "The planning department at every level from junior planners, senior planners and transportation planners at the City of Toronto agree that this is the absolutely wrong location for a drive-thru." He added, "When city planners, community members, and local political leadership all say that the site is inappropriate,
McDonald's should pay heed, rather than try to ram its idea down people's throats."

16 April 2002: This was the week that McDonald's filed a complaint to challenge the interim control bylaw at the Ontario Municipal Board (OMB), as well as in the courts.

1 March 2002 - The ongoing uncertainty concerning a proposed McDonald's Drive-Thru in the St. Clair and Christie area has moved local residents to continue their regular Saturday morning public protests in the hope that McDonald's will respect the intent of the recently-passed interim city bylaw and begin a dialogue with the community.

"We are obviously very pleased that the city recognizes the need to control the growth of drive-thru facilities in Toronto," says local Councillor Joe Mihevc (Ward 21, St. Paul's) of the February 14 interim control bylaw, which places a one-year halt on all drive-thru developments on St. Clair Ave. West between Oakwood and Bathurst streets.

"But we are concerned that McDonald's may not respect the intent of this interim bylaw and may go ahead and challenge it in court," cautions Mihevc. "This would be contrary to the goal of the interim bylaw, which is to allow the city and communities such as Humewood and Hillcrest time to develop policies to manage the growth of drive-thru facilities in the city."

This Saturday, local residents and members of the Humewood Neighbourhood Committee will continue their 11 a.m. to 12 p.m. demonstrations in front of McDonald's restaurant at 710 St. Clair Ave. West, west of Christie St.

"We support our local businesses and we want them to prosper," says Sarah Adler, a longtime local resident and member of the Humewood Neighbourhood Committee. "The community has worked very hard to stop this drive-thru and at the same time encourage an open dialogue with McDonald's to find a compromise that we can all live with," she adds.

"Unfortunately, as of this date, they have not agreed to any dialogue with this community, and therefore, we are very concerned that McDonald's will not abide by the bylaw and will instead go ahead with their plans against the wishes of local residents, many businesses, city planners, traffic engineers and city council itself."

The Humewood Neighbourhood Committee estimates that a drive-thru would result in as many as 60-80 cars per hour, which means 120-160 cars in and out, crossing the sidewalk at peak times. This would threaten pedestrian safety in a neighbourhood with a large population of young children and senior citizens. A drive-thru would also increase traffic problems in an already congested street and contribute to air pollution in a neighbourhood with many schools and daycares.

"McDonald's prides itself on being a corporation that listens to its communities, and we are determined to ensure they live up to that commitment," says Adler.

14 February 2002: Toronto City Council passed an interim control bylaw that freezes development along St. Clair Ave. West from Bathurst St. to Oakwood Ave. for one year. The intention is to eventually develop consistent and more permanent bylaws controlling drive-thrus throughout the City of Toronto.
 

Last updated: 18-Jun-2004
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