Ed Morgan* THE SWORD IN THE ZONE: FANTASIES OF LAND …...15Ian Wright, ‘In Search of Grander...

Ed Morgan THE SWORD IN THE ZONE FANTASIES OF

LAND-USE PLANNING LAWdagger

The theme of this article is that the contradictory impulses found in modern land-use planning law are impossible to overcome The analysis takes place at two levelsthat is on the level of law and on the level of land-use planning In the first placethe case law on the decision-making authority of municipal bodies and their provin-cial review boards will be examined in an effort to clarify if possible the question ofwhether land development raises issues that are at heart law or policy and conse-quently whether they are entitled to intervention or deference by reviewing courtsThat case law which forms a shell for land-use planning approaches is then filledin with an examination of divergent approaches toward fashioning the liveable cityThe regulatory flux between density and sprawl and the tension between more recentnew-urbanist designs and the traditional suburban development plan are exploreddemonstrating that neo-urban hub developments are premised on a false vision ofcollective social experiences while suburban garden developments are premised onthe hollow dream of an idyllic society Each of these competing approaches simulta-neously answers the weaknesses of the other and contains weaknesses of its own thatare answerable by the other Given this incoherence this article therefore endorsesa substantial deregulation of the field Paradoxically this advocacy of privatizationdoes not proceed first and foremost out of respect for the value of the market as effi-cient regulator rather it proceeds out respect for the values inherent in public regu-lation and administrative law ndash values which government land-use planning hasfound impossible to achieve

Keywords municipal law administrative law judicial review law and plan-ning new urbanism aesthetic regulation bonusing

I Throwing zones at class houses

The word is out in the scientific community that a lsquonew dealrsquo in planningis not in the cards lsquoNatural selectionrsquo the theory goes lsquohas passivelyguided the evolution of mammalian brains throughout time just as poli-ticians and entrepreneurs have indirectly shaped the organization of

Professor of Law University of Torontodagger Many thanks to the participants in the Planning Law and Property Rights Conferenceheld at the University of Alberta in May 2011 and to the participants in the Universityof Toronto Faculty of Law Summer Camp series held in July 2011 for their helpfulcomments and discussion Additional thanks to Eric Turkienicz for his comments andfor several puns Errors and the worst of the puns are the authorrsquos alone

(2012) 62 UNIVERSITY OF TORONTO LAW JOURNAL DOI 103138utlj622163

cities large and smallrsquo1 Our urban and suburban areas with their societalnerve centres and lsquohighway systems driven by similar principles as theneocortexrsquo2 are like our brains It is the theory of this article that the de-signers of these metropolitan organs and their governing laws ndash havingcreated a state of regulatory flux between density and sprawl and betweencommunity interests and property rights ndash are either hapless dreamers orilliberal geneticists out to tinker with our metropolitan grey matter3

The normative question addressed in this article is one that has vexedthe Canadian system for as long as local government powers have beenthe subject of legal contemplation how does community-planningauthority stack up against ownersrsquo rights4 The question has become par-ticularly acute now that sustainability environmentalism and issues ofurbansuburban aesthetics are among the declared purposes of regula-tion in this field5 Whatrsquos more these factors are not confined to overallpolicy making but spill over to the task of determining individual devel-opment applications6 Accordingly the subject on which this study

1 Mark A Changizi amp Marc Destefano lsquoCommon Scaling Laws for City Highway Systemsand the Mammalian Neocortexrsquo (2009) 15 Complexity 11

2 Ibid at 113 Graeme McMillan lsquoOur Cities Are Our Brainsrsquo (19 September 2009) online io9

lthttpio9com5362762our-cities-are-like-our-brainsgt lsquo[O]ur entire world is justone giant living brain and we are but living Numskullsrsquo

4 For the Supreme Court of Canadarsquos classic statement of community authority overownersrsquo rights see Township of Markham v Langstaff Land Development Ltd [1957] SCR336 stating that the municipality has discretion to substitute its own criteria for thosein statute For the Supreme Court of Canadarsquos classic statement of property rightsover community interests see Etobicocke Board of Education v Highbury Developments Ltd[1958] SCR 196 at 200 planning decisions lsquomust be exercised judiciallyrsquo On the earlyfusion of administrative law principles with the legal restrictions placed on municipaldecision making see Stanley Makuch lsquoBora Laskin and Municipal and Planning Lawrsquo(1985) 35 UTLJ 469 On the tension between planning and property rights see City ofNanaimo v Rascal Trucking Ltd [2000] 1 SCR 342 at para 18 lsquoThere is ample authorityon the interpretation of statutes generally and of municipal statutes specifically tosupport a broad and purposive approachrsquo On the other hand see R v Greenbaum[1993] 1 SCR 674 at 688 lsquoMunicipalities are entirely the creatures of provincial sta-tutes Accordingly they can exercise only those powers which are explicitly conferredupon them by a provincial statutersquo On the laudable goals of land-use regulation ingeneral see Eran S Kaplinsky From Farms to Suburbs Controlling Land Subdivision (SJDThesis University of Toronto 2006) [unpublished] esp at 22ndash4 [Kaplinsky]

5 See Joe Berridge lsquoBeauty Truth and Order or Something Like Thatrsquo (2000) 40 PlanCanada 14 at 14 describing Daniel Burnhamrsquos turn-of-the-twentieth-century prescrip-tion for city building lsquoLet your watchword be order and your beacon beautyrsquo

6 Sandeep Kumar lsquoUrban Design Decision-Making A Study of Ontario MunicipalBoard Decisions in Torontorsquo (2005) 14 Canadian Journal of Urban Research 3 thelandmark case of Township of Scarborough v Bondi [1959] SCR 444 [Bondi] permittinglsquospot zoningrsquo for individual properties is the seminal moment for the lawrsquos authoriza-tion of this narrowing of the planning-policy gaze

164 UNIVERSITY OF TORONTO LAW JOURNAL

specifically focuses is not so much municipal by-laws of general applica-tion but the pervasive practice of ad hocery in subdivision approval spotzoning rezoning and other exercises of planning law authority7

The other subject matter explored in this study is the regulation ofurban form as an aspect of property uses Although addressing issues ofform may not be a requirement for the theoretical justification of plan-ning law8 the contemporary tendency toward fusion of architecturalform and city planning9 has engaged the development-approval processin subjective notions of lsquogood livingrsquo and lsquogood designrsquo10 In this climatemunicipalities and their lawyers may be advocating deference to an ide-ology of local government11 and an accompanying urban aesthetics12

more than to the technical prowess of professional planners13 When allof this is combined with a zoning system dotted with property-specific

7 For a survey and critique of American jurisprudence on piecemeal authority overproperty see Carol M Rose lsquoMahon Reconstructed Why the Takings Issue Is Still aMuddlersquo (1984) 57 S Cal L Rev 561 at 561ndash2

8 On the cultural impetus for suburban development see Robert Fishman BourgeoisUtopias The Rise and Fall of Suburbia (New York Basic Books 1987) at 3ndash17 Kenneth TJackson Crabgrass Frontier The Suburbanization of the United States (Oxford Oxford Uni-versity Press 1985) at 11 lsquo[S]uburbanization has been as much a governmental as anatural processrsquo

9 See Beverly A Sandalack amp Andrei Nicolai lsquoWhatever Happened to the PublicRealmrsquo (2002) 42 Plan Canada 24 describing the fluctuating separation and fusionof planning and design On the theoretical justifications for legal regulation of formand aesthetics in property matters see John J Costonis Icons and Aliens Law Aestheticsand Environmental Change (Urbana IL University of Illinois Press 1989) at xvi 1 seealso James Charles Smith lsquoLaw Beauty and Human Stability A Rose Is a Rose Is aRosersquo (1990) 78 Cal L Rev 787

10 Hok-Lin Leung lsquoA New Kind of Sprawlrsquo (1995) 35 Plan Canada 4ndash5 equating lsquogoodlivingrsquo with lsquosuburban ideals of democracy and communityrsquo see also Lawrence C Ger-kens lsquoD is for Designrsquo Planning Commissioners Journal (2010) online lthttppcjtypepadcomplanning_commissioners_jo201002designhtmlgt On lsquogood livingrsquosee Carter Wiseman lsquoA Classy Comeback for Apartment Housesrsquo New York Magazine(10 May 1982) 67 at 67 lsquo[F]ine tuning of the zoning laws and what appears to be asharper awareness about architecture among some developers are combining to bringgood design back to apartment formrsquo

11 Mark Pennington Planning and the Political Market Public Choice and the Politics of Gov-ernment Failure (London Athlone Press 2000) at 11 [Pennington Planning] lsquo[P]oliti-cal actors are not ldquoeconomic eunuchsrdquo concerned to maximize ldquosocial welfarerdquo butinstead are rational actors pursuing individual self-interestrsquo

12 In this field ideology and aesthetics can themselves become inseparable See JillGrant lsquoAiming for Well-Designed and Beautiful Citiesrsquo in Jill Grant ed A Reader inCanadian Planning Linking Theory and Practice (Toronto Thomson Canada 2008) at185 [Grant lsquoAimingrsquo] lsquoWhile Canadians may agree that planning to achieve effi-ciency health and safety is a well-established function of government do they sharethe same level of consensus on urban aesthetic valuesrsquo

13 See eg Keith Nicol lsquoBuilding Orientation and Heating Requirements in Canadarsquo(1987) 27 Plan Canada 154 at 161 lsquoSpecific policies that might reduce building energy

FANTASIES OF LAND-USE PLANNING LAW 165

exceptions and statutorily authorized deal making between cities andowners14 the entire land-use planning process seems to cry out for astudy of its own legitimacyThe ambitions of this article are threefold In the first place it reviews

the judicial decisions surrounding the question of property rights andplanning expertise with a view to achieving some understanding of thedebate over the proper degree of deference afforded to planning deci-sions It may be rhetorically insightful for non-lawyers to ask lsquodoesanyone know what ldquourbanrdquo means anymorersquo15 but the ambivalence im-plied therein provides no answer to land-development questions thatstatutory processes demand be answered At some level planningapproval is properly either a question of adjudicated property rights inthe economic interest of owners16 or collective policies in the equitableinterests of community members17 It takes a legal theory to determinewhether curial deference to planners and local officials is indeed partof the policy cure or rather is a prolongation of the legal disease18

The second ambition is to trace the evolution and legal dynamics oftodayrsquos planning approaches In doing so the study inevitably dividesinto two sub-parts The first traces the rise and demise of the garden citythat dominated twentieth-century law and policy19 while the secondtraces the emergence of the theory of new urbanism and its ultimate

consumption include promoting the solar orientation of streets and buildings andprotecting solar accessrsquo

14 Planning Act RSO 1990 c P13 s 37 [Planning Act] lsquoThe council of a local municipal-ity may authorize increases in the height and density of development that willbe permitted in return for the provision of such facilities services or matters as are setout in the by-lawrsquo Bondi supra note 6 authorizing spot zoning

15 Ian Wright lsquoIn Search of Grander Humane Visionsrsquo (1996) 36 Plan Canada 316 See Paul E Peterson City Limits (Chicago University of Chicago Press 1981) at 149

advocating the lsquoconsensual politics of developmentrsquo17 Stephen L Elkin City and Regime in the American Republic (Chicago University of Chi-

cago Press 1987) at 100 condemning lsquogrowth strategies [that] themselves contributeto inequalityrsquo

18 On the current judicial approach to curial deference more generally see Dunsmuir vNew Brunswick [2008] 1 SCR 190 dividing questions of appellate review into tests oflsquocorrectnessrsquo and lsquoreasonablenessrsquo For a discussion of judicial interpretation ofmunicipal powers outside of the land-use planning field see Ron Levi and MarianaValverde lsquoFreedom of the City Canadian Cities and the Quest for Governmental Sta-tusrsquo (2006) 44 Osgoode Hall LJ 409 describing recent deferential judgments as partof the legal systemrsquos lsquonew deal for citiesrsquo

19 On the garden city as the planning disciplinersquos manifestation of modernism see Stan-ley Buder Visionaries and Planners The Garden City Movement and the Modern Community(Oxford Oxford University Press 1990) at 210 characterizing the garden city move-ment as a product of late-nineteenth- and early-twentieth-century optimism lsquoIt lookedtoward the design of communities that would further a genuinely ethical and civic lifewhile providing the individual a sense of connection and orderrsquo

submerging in a seaside of ironic reversals20 If as the Supreme Court ofCanada has observed lsquo[m]unicipal governments are democratic institu-tions through which the people of a community embark upon and struc-ture a life togetherrsquo21 it seems important for a potentially deferentialcourt to know what type of structure they have actually put together Ittakes in other words a planning theory to determine whether localauthorities will adequately shape or bend out of shape the developmentof property within their domainThe third ambition of this article is to examine the extent to which

current approaches to development decisions reflect acceptable constitu-tional practice Since urban planners have not managed to fill the hollowshell of administrative law with a coherent spatial expression22 localauthorities have turned to incentive zoning or bonusing23 as a way of ad-dressing both the failures of the market and the shortcomings of centralplanning24 Given a statutory framework that facilitates this publicpri-vate mix of power25 it seems important to know how the exercise of suchauthority coincides with more general requirements of equalityand consistency in the law26 It takes a constitutional theory27 in otherwords to determine whether the collective interest can properly add bar-gaining power to its list of bureaucratic levers on ownersrsquo property rightsThere is a sense in the planning literature that lsquosomething must be

donersquo for the future physical and cultural landscape and that we havebeen recklessly throwing zones at our fragile urbansuburban environ-ment in order to produce lsquohigh class residential communit[ies]rsquo28

20 The new-urbanist movement generally thought of as a progressive forward-lookingschool emphasizing environmental sustainability has also been described as embra-cing the lsquoaesthetics of nostalgia and collective memories that embody the ldquoinvitingurbanismrdquo of Seaside [Florida]rsquo Jon Rowland Book Review of The Seaside Debates ACritique of New Urbanism ed by Todd W Bressi (2003) 87 Urban Design Quarterly

21 Pacific National Investments Ltd v City of Victoria [2000] 2 SCR 919 at para 30 [PacificNational Investments]

22 See Michael Dear amp Glenda Laws lsquoThe Social Theory of Planningrsquo (1986) 26 PlanCanada 246

23 Mark Pennington Liberating the Land (London Institute of Economic Affairs 2002) at114 describing lsquomarket based policy instrumentsrsquo

24 Pennington Planning supra note 11 at 12 describing both market failure and govern-ment failure as lsquoinstitutional failurersquo

25 Planning Act supra note 14 s 3726 On consistence and equality as components of the rule of law see Robert Justin Lip-

kin Constitutional Revolutions (Durham NC Duke University Press 2000) at 22127 See Reference re Secession of Quebec [1998] 2 SCR 217 at para 32 identifying the lsquorule of

lawrsquo as one of the unwritten theoretical underpinnings of the Canadian constitution28 Town History online Town of Hampstead lthttpwwwhampsteadqccagt lsquoThe Gar-

den City is a conceptual framework that aims at establishing an idyllic suburb [and] a high class residential communityrsquo For the same theme articulated in reaction

Despite this urgency the neural pathways that are our planned commu-nities remain calcified by the contradiction between community designand property rights and between density and sprawl29 As one Canadianjudge has put it lsquo[d]epending on the way the light falls sometimes onethinks one can see the [policy] objects Other times one cannot andindeed wonders whether there are really objects there at allrsquo30 Theoverall aspiration of this article is to spotlight the refracted prism that island-use planning law The question is not whether this or that reform ispossible the question is whether the entire system works in accordancewith the unruly laws of nature31 or some semblance of the rule of law

II Administrative law Like a rolling zone

Canadian administrative law has arrived at a point where there is a grad-uated spectrum of tests for judicial review strung along a continuum ofadministrative bodies32 The Supreme Court has admonished that theevaluation of an administratorrsquos jurisdiction must follow a lsquofunctionaland pragmaticrsquo logic33 such that a statute perceived as lsquoengag[ing] pol-icy issues or involv[ing] the balancing of multiple sets of interests orconsiderations will demand greater deference from a reviewing courtrsquo34

As others have noted identifying gradations of administrative bodiesand their relative (and perceived) expertise lsquointroduces an interestingif sometimes infuriating complexity into the systemrsquo35 Zoning has

to garden cities see Peter Katz lsquoIntroductionrsquo in Peter Katz ed The New UrbanismToward an Architecture of Community (New York McGraw-Hill 1994) at xiii describinglsquoa growing sense that the suburban paradigm which has dominated since the 1940sand 1950s cannot sustain another generation of growthrsquo

29 James Howard Kunstler Book Review of Architecture Choice or Fatersquo by Leon KrierAmerican Enterprise (1998) online lthttpwwwkunstlercommags_choice_fatehtmlgt opining that we are lsquocaptive victims to failed ideologiesrsquo See also Rolf PendalllsquoDo Land-Use Controls Cause Sprawlrsquo (1999) 26 Environment and Planning B Plan-ning and Design 555 at 569 lsquo[T]he analysis shows that land use controls do influencethe density of new developmentrsquo

30 Miller v Workersrsquo Compensation Commission (Nfld) (1997) 154 Nfld amp PEIR 52 (NL SC(TD) cited in City of Toronto v CUPE Local 79 [2003] 3 SCR 77 at para 63 Lebel J dis-senting

31 James Trefil A Scientist in the City (New York Anchor Books 1994) describing cities asoperating in accordance with laws of nature

32 Director of Research and Investigations v Southam Inc [1997] 1 SCR 748 setting out slid-ing scale of standards of review

33 UES Local 298 v Bibeault [1988] 2 SCR 104834 Dr Q v College of Physicians and Surgeons of British Columbia [2003] 1 SCR 22635 Hon Harvey A Groberman Supremacy and Curial Deference The Supreme Court of Cana-

darsquos Approach to Statutory Interpretation by Administrative Tribunals online lthttpwww

rolled back and forth on this scale at times viewed as an untouchablediscretion of expert planners and local communities while at othertimes perceived as a strictly legal decision of reviewable public officialsOn one hand it is clear that the need for technical evaluation and

community input are among lsquoa variety of reasons why municipalitiesshould have control over the planning of local subdivisionsrsquo36 Pittedagainst that however is the fact that lsquo[t]he right to subdivide real prop-erty to sell a part rather than the whole is an ordinary incident of owner-shiprsquo37 Planning expertise local political control and proprietaryinterests have made the question of curial deference and review a curiousmix In determining property rights the judiciary is within one of its mosttraditional comfort zones in determining the multi-faceted interests ofthe surrounding community the judiciary engages matters entirelyremote from its institutional competence Justice Lebel has commentedthat lsquo[l]aw may look like a dry forbidding and not very fashionable sub-ject Sometimes however it involves broad issues of policy and the princi-ples of municipal governancersquo38 In fact virtually every decision in thisarea entails a combination of legal rights and public policiesWhen it comes to local government the basic test that the courts have

formulated ndash subject always to fact-specific embellishment ndash is that judicialreview is lsquonot a vehicle for consideration of the merits of a municipalityrsquosdecision to pass the bylaw [but rather of] whether it conforms to propermunicipal planning principlesrsquo39 The test of course is remarkable forhow unhelpful it has proved to be Thus the power to quash a municipalby-law or other decision is always discretionary which renders municipaldecisions subject to prima facie deference40 At the same time municipali-ties do not possess any greater institutional expertise on questions of stat-utory interpretation than do courts which renders decisions by citycouncils and their officials subject to a prima facia test of correctness41 Itis clear enough that lsquo[m]unicipalities are creatures of statute and can

statutelawsocietyorg__dataassetspdf_file000593587Justice_Harvey_Grobermanpdfgt

36 City of Vancouver v Simpson [1977] 1 SCR 7137 Oakwood Developments Ltd v St Franccedilois Xavier [1985] 2 SCR 164 at para 8 [Oakwood De-

velopments] citing Re Municipal Act (1959) 28 WWR 428 (BC Sup Ct) See also Re For-far and Township of East Gwillimbury [1971] 3 OR 337 at para 15 (Ont CA) lsquo[w]hile itis no doubt true that in a sense the statute encroaches upon an ownerrsquos use and enjoy-ment of private property rsquo

38 Pacific National Investments supra note 21 at para 139 Country Pork Ltd v Township of Ashfield (2002) 60 OR (3d) 529 at 542 (Ont CA) consid-

ering the use of interim control bylaws under Ontariorsquos Planning Act40 Immeubles Port Louis Lteacutee v Lafontaine (Village) [1991] 1 SCR 32641 City of London v RSJ Holdings Inc [2007] 2 SCR 588 at para 37 citing Nanaimo (City) v

Rascal Trucking Ltd [2000] 1 SCR 342 at para 29

only act within the powers conferred on them by the provincial legisla-turersquo42 but it is anyonersquos guess whether it is the city or the reviewing courtthat determines the contours of the power thereby conferredBy way of illustration courts have determined that a city government

can single out one landowner for special treatment within the overallzoning scheme if legislatively mandated to do so43 but have no inherentpowers to discriminate between properties even if the differentiation is arational or reasonable one44 Likewise cities cannot act for the specificpurpose of depressing a propertyrsquos value if not otherwise done for a bonafide planning purpose45 on the other hand a municipal action will notbe quashed merely because it will have the effect of reducing propertyvalues even if the properties are eventually to be expropriated by thepublic authority46 Generally down-zoning that imposes otherwise publiccosts on an individual landowner is valid47 although down-zoning specif-ically in anticipation of expropriation is beyond a local authorityrsquospowers48 Shifting burdens from community members to an individualowner is seen to be the essence of a valid planning policy49 while impos-ing burdens on an individual owner in preference to others is seen to bethe essence of an illegal rights violation50 The courts have made it clearthat law is mandatory while policy is discretionary but they seem to havedifficulty distinguishing one from the otherA series of Ontario cases dealing with the status of official plans fur-

ther demonstrates the confusion The Ontario Municipal Board (OMB)operates under a statutory mandate to ensure that its decisions lsquohaveregardrsquo to matters of provincial interest51 and to render decisions thatare lsquoconsistent withrsquo any of the provincersquos official plans from time to

42 Shell Canada Products Ltd v City of Vancouver [1994] 1 SCR 231 at 273 See also R vSharma [1993] 1 SCR 650 at 668 citing Stanley M Makuch Canadian Municipal andPlanning Law (Toronto Carswell 1983) at 115 municipalities possess only lsquothoseindispensable powers essential and not merely convenient to the effectuation of thepurposes of the corporationrsquo

43 See Ian M Rogers The Law of Canadian Municipal Corporations 2d ed (Toronto Cars-well 1971) at 4064 lsquoThe general [anti-discrimination] principle does not applywhere the enabling statute clearly specifies that certain persons or things may be ex-cepted from its operation or expressly authorizes some form of discriminationrsquo

44 R v Varga (1979) 51 CCC (2d) 558 (Ont CA) and Montreacuteal (City of) v Arcade Amuse-ments Inc [1985] 1 SCR 368

45 Hauff v City of Vancouver (1980) 12 MPLR 125 (BC SC)46 City of Vancouver v Simpson [1977] 1 SCR 7147 Ibid at 55748 British Columbia v Tener [1985] 1 SCR 53349 Stanley Makuch Neil Craik amp Signe B Leisk Canadian Municipal and Planning Law

2d ed (Toronto Carswell 2004) at 21150 Kramer v Wascana Centre Authority [1967] SCR 23751 Planning Act supra note 14 s 2

time in effect52 Perhaps not surprisingly the courts have on frequent oc-casions perceived these terms to be crucial to the interpretation of thePlanning Act53 What is more interesting is that the statutory phraseshave been lumped together with terminology such as lsquocomprehensivehydrogeological studyrsquo and lsquogrowth management studyrsquo found in theregional plan54 opening all for judicial interpretation on a correctnessstandard55 On the other hand the Ontario courts have been at pains torefrain from interfering with decisions of the OMB unless lsquothe advantageof doing so far outweighs the advantages of judicial restraintrsquo56 It hastherefore been determined to be of critical importance that the boardissue fully explanatory rational analyses for its decisions in the publicinterest57 and at the same time that the board lsquoonly needs to give thegeneral substance of the reasoning behind its decisionrsquo58

In City of Toronto v Romlek Enterprises59 the OMB accommodated adevelopment proposal by granting a minor variance from commercial tomixed use in the process increasing the density over that stipulated inthe existing zoning by-law The approval was contrary to the OfficialPlan60 as the unit density contained in the secondary plan was exceededby fivefold61 Since the Planning Act authorized certain such approvalsto proceed before a Committee of Adjustments as a form of lsquominor vari-ancersquo62 the question on appeal turned on the interpretation of the wordlsquominorrsquo63 Previous courts had tended to find this question at most amixed one of law and fact it being a quintessentially lsquorelative expression

52 Ibid s 3553 Concerned Citizens of King Township v King Township [2003] OJ No 3517 ( QL) (Ont

Div Ct)54 Oak Ridges Moraine Conservation Act 2001 SO 2001 c 31 as amended 2006 c 21

Schedule F ss 122 136(1) s 5 (content of the Oak Ridges Moraine Plan)55 On the correctness analysis for leave to appeal an OMB decision on a point of law

see Juno Developments v Town of Parry Sound [1997] OJ No 976 (QL) at para 7 (OntDiv Ct) and Toronto Transit Commission v City of Toronto (1990) 2 MPLR (2d) 42(Ont Div Ct)

56 Minster of Health v Ontario Human Rights Commission (1993) 20 CHRR 421 (OntDiv Ct)

57 Re Cloverdale Shopping Centre Ltd (1966) 57 DLR (2d) 206 (Ont CA) [Cloverdale]58 Zellers Limited v Royal Cobourg Centres Limited [2001] MPLR (3d) 122 (Ont Div Ct)

[Zellers]59 2008 CanLII 52618 (Ont Div Ct) [Romlek]60 DecisionOrder No 1928 (2006) (OMB)61 Romlek supra note 59 at para 14 lsquoThe Highland Creek Secondary Plan contains a den-

sity limit of 37 resident units per hectare The Proposal is the equivalent of 268 unitsper hectarersquo

62 Planning Act supra note 14 s 45(1)63 Ontario Municipal Board Act RSO 1990 c O28 s 96(1) (criteria for leave to appeal)

[that] must be interpreted with regard to the particular circumstance in-volvedrsquo64 This time however the Divisional Court opined that lsquo[t]heproper interpretation and application of an Official Plan and the confor-mity of a proposed development with an Official Plan is a question oflawrsquo65

By contrast in 583753 Ontario Limited v Regional Municipality of York66

the OMB refused to accommodate a development proposal by denyingthe inclusion of lands lying within the lsquoprotected countrysidersquo areas ofOntariorsquos Greenbelt Plan67 as the active parklands or amenity space re-quired of developers for subdivision approval68 The board was of theview that by virtue of its inclusion in a subdivision proposal such vacantparkland would become an ancillary part of a settlement area contraryto the terms of the Plan69 Although the crucial term lsquosettlement areasrsquois a defined term in the statutorily authorized Greenbelt Plan70 the Divi-sional Court held that this was far from the type of clearly delineated71

and substantial72 statutory definition that has traditionally been consid-ered a question of law Rather the court perceived the OMB as havingadequately fulfilled its duty to assess the policy objectives of the Plan asa whole rather than in its discrete statutorily defined parts73 Althoughit conceded that lsquothe correctness of the three above decisions is opento serious debatersquo74 it refused to intervene based on its perception thatlsquothe decisions are policy decisions not decisions on questions of lawrsquo75

Since the complex combination of environmental and planning ex-pertise required to properly assess the Greenbelt Plan was found tobe squarely within the institutional competence of the board the

64 Perry v Taggart [1971] 3 OR 666 668 (Ont Sup Ct)65 Romlek supra note 59 at para 38 citing City of Toronto v 2059946 Ontario Ltd [2007]

OJ No 3021 (QL) at para 4 (Ont Div Ct)66 2007 CanLII 40538 (Ont Div Ct)67 Greenbelt Act 2005 SO 2005 c 1 s 3(1) authorizing establishment of the Greenbelt

Plan68 See 583753 Ontario Limited v Regional Municipality of York (2006) No 3289 (OMB)

[583753 Ontario Limited]69 The preclusion of lsquosettlement areasrsquo from expanding into lsquoprotected countrysidersquo is

found in section 34213 of the Greenbelt Plan OIC 2082005 (2005) O Gaz 899(effective 16 December 2004)

70 Ibid71 See Basso v Township of King (2005) 50 OMBR 129 (OMB) [Basso] stating that the def-

inition of lsquobed and breakfast establishmentrsquo is a question of law72 City of Vaughan v Rizmi Holdings Limited [2003] OJ No 2053 (QL) (Ont Div Ct)73 583753 Ontario Limited supra note 68 at para 7 citing Kraft Canada Inc v Menkes et al

(18 July 2007) 54806 released July 1807 at para 13 (Ont Div Ct) [Kraft] stating thatthe entire order of an OMB decision must be capable of review not just discrete parts

74 583753 Ontario Limited supra note 68 at para 1475 Ibid at para 11

court concluded that it lsquocould not see appellate review of these deci-sions being of much or any assistance in future developments in thegreenbeltrsquo76

Accordingly official plans authorized by provincial statute are alterna-tively law and policy77 likewise decisions interpreting them are alterna-tively subject to a correctness and a reasonableness standard of review78

Their terms are a matter of precise definition79 likewise their stated cri-teria must be examined as part of a larger picture rather than as specifi-cally defined terms80 The OMB is required to give reasons so that thepublic in whose interest it acts understands its rationale81 likewise theboard is required to give only the most cursory of justifications for itsdecisions82 The courts have declared that lsquo[t]hose engaged in the plan-ning process are entitled to know the appropriate weight and consider-ation to be given to provincial policies as well as to official plan policiesin decisions concerning land use planningrsquo83 nevertheless no suchknowledge has been conveyed and none seems to existWhen it comes to the question of deference or judicial review the

Supreme Court has consistently recognized that the legislature has con-ferred certain discretionary powers of decision on administrators andnot on the courts84 On the other hand it has occasionally had toremind itself of the rule-of-law postulate requiring all such decisions tolsquobe based upon a weighing of considerations pertinent to the object ofthe administrationrsquo85 and that whether the matter is properly character-ized as one of formal law or of policy lsquothe policy and objects [are those]of the governing Actrsquo86 Since it is forbidden for land-use decisionmakers to act on a predisposition not expressed in their governing

76 Ibid at para 1577 For a brief discussion of this conflict see Barnet Kussner amp Jeff Cowan lsquoConflicting

Court Decisions on OMB Appealsrsquo Nova Res Urbis GTA Edition (21 November 2007)online Weirfoulds lthttpwwwweirfouldscomfiles1560_GovernmentUpdate_Winter08pdfpagemode=nonegt

78 For both standards applied at once see Ontario Liquor Control Board v Lifford WineAgencies [2005] OJ No 3042 (QL) (Ont CA)

79 Basso supra note 7180 Kraft supra note 7381 Cloverdale supra note 5782 Zellers supra note 5883 City of Toronto v 2059946 Ontario Limited [2007] OJ No 3021 (Div Ct) cited in Gordon E

Petch Curial Deference and the Ontario Municipal Board (20 October 2009) onlinelthttpwwwmunicipallawchamberscomdptpetchUploaded_FilesCurialDeferenceandtheOntarioMunicipalBoardpdfgt

84 Smith amp Rhuland Ltd v The Queen ex rel Brice Andrews [1953] 2 SCR 95 at 10785 Roncarelli v Duplessis [1959] SCR 121 at 140 [Roncarelli]86 Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 at 1034 Lord Reid

concurring [Padfield]

legislation87 the key to solving the lawpolicy interventiondeferencefull reasonscursory explanation correctnessreasonableness quagmireis to unearth the theory of land development embedded in their man-date The courts on their own provide little more than a framework foroverlapping wrinkles and contradictory folds the real test is to be ironedout by comprehending the planning theory that currently governs oururban and suburban growth

III Planning theory Romancing the zone

For a discipline born of creative minds88 urban planning is remarkablefor its reactive rather than its proactive nature The early twentieth cen-tury saw the garden city grow out of revulsion for the Victorian erarsquostumultuous industrial city89 while the late twentieth century saw thenew-urbanist movement grow out of a revulsion for the uniform monot-ony of the modernist suburb90 Accordingly while planners and urbanreformers have been anxious to participate in contemporary societyrsquoslsquounexampled rate of progress and inventionrsquo91 their inventions have fre-quently contained the seeds of their own contradictions Indeed thecompeting theories that co-exist in the land-use planning communityseem premised more on competing fantasies of the lsquogood communityrsquothan anything else92 This portion of the article examines two of theprominent planning theories to emerge in the past centuryIn one sense of course the two prevailing views of good planning dis-

cussed here ndash the garden-city vision of future utopias and the new-urbanistvision of past perfection ndash have a common denominator they reject thesecond law of thermodynamics and recoil from random motion93 In

87 See Oakwood Developments supra note 37 at para 17 where the municipality lsquorefused toentertain any pertinent information of this nature ldquodue to its belief that the landshould not be subdivided under any circumstancesrdquorsquo

88 Jill Grant Planning the Good Community (London Routledge 2006) at 36 [Grant Plan-ning] describing early-twentieth-century innovations in planning as having beenlsquoborn of the creative mind of a deeply spiritual visionaryrsquo

89 Robert Fishman Urban Utopias in the Twentieth Century (New York Basic Books 1977)at 30 [Fishman]

90 Leon Krier lsquoDrawingsrsquo (1984) 54 Architectural Design 16 [Krier lsquoDrawingsrsquo]91 Fishman supra note 89 at 29 citing Ebenezer Howard as father of the garden city92 Grant Planning supra note 88 at 224 lsquo[b]ut the very notion that we might define the

good community in precise or unitary terms must be challengedrsquo93 See Steven Greenhut lsquoNew Urbanism Same Old Social Engineeringrsquo (2006) 56 Free-

man Ideas on Liberty 3 at 9 contemporary planners lsquouse the language of deregula-tion and fairness meanwhile denying that calls for heavy-handed central planninghave anything to do with their movementrsquo

fact it is trite to say that all planning policies embody a felt need fororder and for enhancing societal and personal potentials94 Despite thisoverarching drive to transform a chaotic landscape into controlled devel-opment the dominant planning paradigms have both managed to pro-duce similarly defective cities and environs irreparable lsquodead zonesrsquo95

encircled by surreal enclaves These surroundings in turn are them-selves a direct product of planning policies whose failures have been ascolossal as their aspirations The law of land-use planning has producedtwo distinctive types cities and suburbs and despite the shared goals ofproducing the good community these have come to reflect either lsquocar-toon architecture and parking lotsrsquo96 or lsquoelitist values and [inaccessible]expert judgmentrsquo97

Todayrsquos superficial planning realities have emerged from a set ofdeep-seated fantasies romanticizing the power of the law as a vehicle forescape from and recreation of the town-and-country mix The SupremeCourt of Canada demonstrated the trend in Edwards Books98 in which itupheld Ontariorsquos Sunday closing laws in the face of a challenge by agroup of Toronto-based retailers99 The Court reasoned that the statu-tory policy unlike its older federal counterpart100 only incidentallyaffected religious freedom101 In arriving at its conclusion that thestatute embodied a reasonable limit on the appellantsrsquo constitutionalrights102 the Court heavily romanticized the pseudo-rural environmentof Canadarsquos urban centres In Chief Justice Dicksonrsquos words

94 Lawrence Haworth The Good City (Bloomington IN Indiana University Press 1963)at 22

95 James Howard Kunstler The Geography of Nowhere The Rise and Decline of Amer-icarsquos Man-Made Landscape (New York Simon amp Schuster 1993) at 306 [KunstlerGeography]

96 Ibid (publisherrsquos blurb)97 Jill Grant lsquoThe Ironies of New Urbanismrsquo (2006) 15 Canadian Journal of Urban

Research 17198 Edwards Books and Art Ltd v The Queen [1986] 2 SCR 713 [Edwards Books]99 The challenged legislation was the Retail Business Holidays Act RSO 1980 c 453 [Retail

Business Holidays Act]100 The federal Lordrsquos Day Act RSC 1970 c L-13 was struck down as unconstitutional in

R v Big M Drug Mart Ltd [1985] 1 SCR 295101 The Retail Business Holidays Act supra note 99 was enacted following publication of

the Ontario Law Reform Commission Report on Sunday Observance Legislation(Toronto Department of Justice 1970) with an expressly secular purpose

102 The appellants a small coalition of Toronto-based retailers argued that the Ontarioenactment violated section 2(a) of the Canadian Charter of Rights and Freedoms Part Iof the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982c 11 [Charter] The provincersquos response endorsed by the Court was that any suchinfringement of freedom of religion was within reasonable limits and therefore justi-fied under section 1 of the Charter

A family visit to an uncle or a grandmother the attendance of a parent at achildrsquos sports tournament a picnic a swim or a hike in the park on a summerday or a family expedition to a zoo circus or exhibition ndash these and hundredsof other leisure activities are amongst the simplest but most profound joys thatany of us can know103

The Courtrsquos pastoral imagery harkens back to the turn-of-the-centurywork of town planner Ebenezer Howard and his seminal treatise GardenCities of To-Morrow104 Howardrsquos vision embraced a quasi-urban environ-ment that lsquoas it grows the free gifts of Nature ndash fresh air sunlightbreathing room and playing room ndash shall be still retained in all neededabundancersquo105 Indeed Chief Justice Dicksonrsquos infatuation nearly a cen-tury after its first appearance goes far to demonstrate that Howardrsquoswork from its origin as a lsquomodest little tract could actually have come tobe the most important book on the planning of cities that has appearedin the last centuryrsquo106 Its champions and its critics alike concede thatHowardrsquos concept of separating residences from other uses has beenendlessly romanced by professionals in the field lsquo[c]ity planners and de-signers are still thoroughly governed intellectually by its underlyingprinciplesrsquo107

A KILLING TWO BURBS WITH ONE ZONE

The garden-city project was both pragmatic and utopian It embracedthe eminently reasonable goal of moving from industrialized areas togreener pastures indeed the planning theory that continues to predom-inate and to resist change in Torontorsquos two largest suburbs108 was oncedescribed by no less a futurist than HG Wells as ushering in lsquoa regener-ate world cleansed of suffering and sorrowrsquo109 As is evident from thesocio-romantic language in which this version of urban design was origi-nally expressed the theory was premised on a combination of lsquotwo

103 Edwards Books supra note 98 at para 126104 Ebenezer Howard Garden Cities of To-Morrow ed by FJ Osborn (London Faber and

Faber 1946) [Howard]105 Ibid at 113106 Lewis Mumford lsquoReevaluations I Howardrsquos Garden Cityrsquo The New York Review of Books

(April 1965) at 10107 Jane Jacobs The Death and Life of Great American Cities (New York Random House

1961) at 8 [Jacobs]108 Phinjo Gombu lsquoParadise Saved GTA Growth Plans Aim to Rein in Sprawlrsquo The

Toronto Star (14 January 2011) A1 [Gombu] lsquoOntario Infrastructure Minister BobChiarelli says he is aware the situation in Mississauga and Brampton ldquohas to bewatched very carefullyrdquorsquo

109 HG Wells New Worlds for Old (London Donohue 1913) at 20

parallel tendencies in design These are social reform and improvementin aesthetic appearancersquo110

The garden-city theory was unlike anything that had come before itthe harbinger of the new town-planning discipline and envisioned lsquoanentirely novel relationship between Western man and the organizationof his cities ndash resulting from the industrial revolutionrsquo111 It was there-fore a turn-of-the-century product of its times as much as it was an effortto be a plan for all time Howardrsquos thought reflected a broadly modernistif paradoxical impulse to both break free from and restart history112 es-caping from those places where lsquocivilization works its miracles and civi-lized man is turned back almost into a savagersquo113

As a reaction against the urban intensification of the late nineteenthcentury114 Howardrsquos garden-city vision was one that saw urbanizationas a sinful115 and indeed an unnatural form of existence116 Althoughthe original garden-city developments were designed as a consciousdeviation from the Dickensian quality of the nineteenth-century indus-trial city117 Howardrsquos notion was that they were to be privately financedand created as a product of private ordering ndash thus maintainingtheir place within lsquothe most beautiful and wonderful of natural lawsrsquo118

In the words of one early English thinker on cities and their role

110 Norman Lucey lsquoThe Effect of Sir Ebenezer Howard and the Garden City Movementon Twentieth Century Town Planningrsquo (1973) online lthttpwwwrickmansworthhertsfreeservecoukhoward1htmgt For a full exploration of the social and eco-nomic factors driving suburban development see Dolores Hayden Building SuburbiaGreen Fields and Urban Growth (London Vintage Books 2004) also Dolores HaydenThe Power of Place Urban Landscapes as Public History (Cambridge MIT Press 1995) at43 lsquo[S]ocial history is embedded in urban landscapesrsquo

111 Francois Choay The Modern City Planning and the Nineteenth Century (New York Brazil-ler 1969) at 7

112 Paul de Man lsquoLiterary History and Literary Modernityrsquo in Paul de Man ed Blindnessand Insight (Oxon UK Methuen 1983) 142

113 Alexis de Tocqueville Journeys to England and Ireland (London Faber and Faber1958) at 108

114 Adna Weber The Growth of Cities in the Nineteenth Century (New York Macmillan 1899)at 1 lsquoThe tendency towards concentration and agglomeration is all but universal inthe Western worldrsquo

115 Cf John Ruskin lsquoUnto This Lastrsquo The Works of John Ruskin (London George Allen1903) at 205 lsquothe smoke of their [citiesrsquo] sins going up into heaven like the furnace ofSodomrsquo

116 JA Hobson The Evolution of Modern Capitalism (London Walter Scott 1906) at 354condemning lsquothe huge hideous conglomerations of factory buildings warehouses andcheap workmenrsquos shelters which make the industrial townrsquo

117 See Book Review of Dickens and the City by FS Schwarzbach (1980) 35 Nineteenth-Century Fiction 105 at 106 describing lsquoDickensrsquos deeply troubled vision of life insocietyrsquo

118 Howard supra note 104 at 149

in the universal order lsquoGod made the country but man made thetownrsquo119

The heart of urban planning in the early twentieth century and themost fundamental policy objective of Howardrsquos garden city was the sepa-ration of uses of land into distinctive residential districts as opposed tocommercial and industrial zones120 This distinction in keeping with theevangelical tone of Howardrsquos land-use theories has been characterizedby the courts as lsquoa natural and sensible one and well within the broadterms of the enabling statute [for municipal zoning authority]rsquo121 It isenvisioned as a product of nature as much as it is a product of policy andis part and parcel of the desired return to a less contrived mode of lifethat reflects the lsquoanti-urban animusrsquo122 of its original thinkers While theentirely new garden cities were planned in order to repopulate the coun-tryside123 the twentieth-century phenomenon of zoning was implemen-ted in order to bring a similar semblance of harmony and nature toliving conditions within the cities themselves124

Given that the primary aesthetic of early town planning was one ofspontaneous development around natural unplanned garden areaswith lsquono wretched and festering suburb anywherersquo125 it is not surprisingthat the corresponding politics of the movement had a distinctly anar-chist strain126 What is perhaps more surprising and ironic is that thecontemporaneous zoning policy in urban areas was one of hyper con-trol While the point of zoning is to distinguish between properties onthe basis of their location ndash with specified uses permitted in one zoneand prohibited under otherwise identical circumstances across an im-posed boundary127 ndash the further point is to ensure strict uniformity from

119 William Cowper lsquoThe Taskrsquo in HS Milford ed The Poetical Works of William Cowper(London Oxford University Press 1905) 127 at 143ndash4

120 See R v Bell [1979] 2 SCR 212 at 219 authorizing land zoning by usage but not whenthe municipality deviates from use as a criterion of zoning

121 Ottawa v Royal Trust Co [1964] SCR 526 at 538122 William Peterson lsquoThe Ideological Origins of Britainrsquos New Townsrsquo (1968) 36 Journal

of the American Institute of Planners 160 at 162123 Howard supra note 104 at 42 lsquo[I]t is deeply to be regretted that people should

further deplete the country districtsrsquo124 Dugald MacFadyen Sir Ebenezer Howard and the Town Planning Movement (Manchester

UK Manchester University Press 1970) at 27 lsquoHoward was thinking of a marriage ofTown and Country a new phase of World civilization an even more ambitious aimrsquo

125 Howard supra note 104 at 50126 Eliseacutee Reclus lsquoThe Evolution of Citiesrsquo (1895) 67 Contemporary Review 263 describ-

ing the ideal combination town and country life127 Bondi supra note 6 at para 451 lsquoOn one side of an arbitrary line an owner may be pre-

vented from doing something with his property which another owner on the otherside of the line with a property which corresponds in all respects except location isfree to dorsquo

one property to another128 And while lsquomathematical identity of condi-tions does not always existrsquo129 and spot zoning is generally a permittedexercise of municipal power where accompanied by a non-discriminatoryrationale130 municipalities have come to eschew all individualized dis-tinctions between parcels of land in the same locality with differentia-tions or proximate mixing of uses rejected as displaying lsquono rhyme norreason in a planning sensersquo131

For reasons which harken back to Howardrsquos original garden-citytheories the promotion of uniformity has gone together with an over-arching planning-policy conviction that lsquo[a] motivation to preserve landsin their natural state is a proper municipal purposersquo132 The result hasbeen a transformation of the garden-city ideal into the lsquogarden suburbrsquoreality an accommodation of the middle-class family market in an envi-ronment adapted to automobiles separate uses between commercialand residential areas social mobility and a hierarchy of streets andneighbourhoods133 As transplanted from its English origins to NorthAmerica the garden suburb supported rising property values completewith fully detached houses easily accessible front-yard driveways and gar-ages and spacious setbacks and lawns134 In other words the physicaldesign features that worked best in marketing to a growing middle classbecame embedded in suburban planning and its accompanying regula-tion As scholars in the history of town planning have noted lsquoHowardrsquosgarden city theory disappeared even as the design elements associatedwith it became omnipresentrsquo135

Critics have in recent years been at pains to point out that lsquo[t]he twoelements of the suburban pattern that cause the greatest problemsare the extreme separation of uses and the vast distances betweenthingsrsquo136 Indeed so ubiquitous has the pattern of suburban develop-ment become that urban planning itself is now more a matter of publicadministration and bureaucracy than it is a matter of design all theauthentic design questions having been long lsquoldquosolvedrdquo by civil engineers

128 City of Toronto v Mandelbaum [1932] OR 552 (Ont Sup Ct)129 Bondi supra note 6 at para 451130 Re Township of North York [1960] OR 374 (Ont CA)131 Borough of North York v HG Winton Ltd (1978) 6 MPLR 1 at 12 (Ont Div Ct)132 First National Properties Ltd v District of Highlands (2001) 17 MPLR (3d) 80 at 102

(BC CA)133 See Barbara M Kelly Expanding the American Dream Building and Rebuilding Levittown

(Albany NY SUNY Press 1993)134 Jill Grant lsquoFrom lsquoSugar cookiesrsquo to lsquoGingerbread menrsquo Conformity in Suburban

Designrsquo (2002) 151 Planners Network 10135 Grant Planning supra note 88 at 42136 Kunstler Geography supra note 95 at 117

and their brethren and written into the municipal zoning codesrsquo137

Accordingly the traditionally most popular forms of urban habitat ndash lsquotherow house with a granny flat over the garage in the rear (accessed by theservice alley) across the street from the retail storefront with the lawyerrsquosoffice above with its third-floor residents looking down on the park thesidewalk cafeacute and the corner groceryrsquo138 ndash are not only contrary to mod-ernist suburban design they are generally illegal139

The professional response to the modernist embrace of suburbia hasbeen twofold On the one hand scholars of landscape studies focus onthe empirical chronicling of suburbiarsquos manifestations noting the archi-tectural resemblance of structures built along commercial-highway stripsto traditional urban forms140 In this school of thought there is a resignedfatalism as to the flaws of land-use policy and the resultant suburbansprawl lsquoWhat shall be done about the new ubiquitous metropolis Theanswer is simple to phrase but not so simple to execute We must learn tolive with itrsquo141 This uncritical posture may not always celebrate the unaes-thetic results of uniform automobile-centred planning policies142 but ittends to look at design pieces rather than at the whole communityeffect143 The upshot of the landscape science that emphasizes traffic fea-tures uniformity and technical detail over and above collective liveabilityand human-scale developments is a wasteful144 if spacious form ofsprawling land use the result has been the death of numerous suburbs atthe hands of a single detached zone145 This phenomenon has in turnprompted increased concerns over the finiteness of resources and the sus-tainability of the ever-expanding urban and suburban terrain146 The

137 Ibid at 113138 Daniel K Slone amp Doris S Goldstein A Legal Guide to Urban and Sustainable Development

(Hoboken NJ John Wiley amp Sons 2008) at 2ndash3 [Slone amp Goldstein]139 Ibid at 1lsquo[T]he places people love have been made illegal to buildrsquo140 See eg John Brinckerhoff Jackson Discovering the Vernacular Landscape (New Haven

Yale University Press 1984)141 Pierce Lewis lsquoThe Galactic Metropolisrsquo in George Macinko amp Rutherford H Platt eds

Beyond the Urban Fringe Land Use Issues of Nonmetropolitan America (Minneapolis Uni-versity of Minnesota Press 1983) 23 at 41ndash2

142 Slone amp Goldstein supra note 138 at 6 lsquoAutomobile-centric design results in uglylandscapesrsquo

143 Ibid at 25 contrasting contemporary zoning policy with more contemporary theoriesof urbanism lsquoUrbanist law looks at the whole not just the piecesrsquo

144 James Howard Kunstler lsquoFarewell to Suburbiarsquo Ottawa Citizen (19 April 2008) B7lsquo[T]he project of suburbia represents the greatest misallocation of resources in thehistory of the worldrsquo

145 See Gombu supra note 108 at A1 arguing that Mississauga and Brampton exhibit thelong-term effects of lsquosprawling ad hoc development [and] traffic congestionrsquo

146 See eg Norman Myers lsquoConsumption Challenge to Sustainable DevelopmentrsquoScience (4 April 1997) 53 at 53ndash7

zoning phenomenon that allocates more resources to separating proper-ties than to linking them together has resulted in a level of degradationof urban aesthetics and the inhabited environment that is difficult tooverstate147

B THEYrsquoLL ZONE YOU WHEN YOUrsquoRE RIDING IN YOUR CAR

By contrast urban planning itself has taken a theoretical turn back to aresurrected form of urbanism The movement in this direction beganwith Jane Jacobsrsquos early 1960s writings celebrating a revival of dense andmixed-use metropolitan neighbourhoods148 This enthusiasm for neo-traditional pedestrian-friendly and transit-oriented streetscapes has coa-lesced around the banner of lsquoNew Urbanismrsquo149 advocating improvingcommunities through a variety of strategies from larger county-sized re-gions to building-specific proposals150 As a design movement this retro-urban aesthetic has eschewed the spatial expanses favoured by an openautomobile-centred modernism151 in favour of walkable city centres withwell-defined edges that enclose and concentrate development ratherthan allowing it to sprawl152

From a sociological perspective the new urbanists have sought to reac-quaint modern cities with the historic form of the European quartierwith its integration of lsquowork culture leisure and residence into a denseurban environmentrsquo153 And as a political ideology new urbanism drewheavily on the romanticized Marxism of the late 1970s154 using the callfor traditional building practices as a surrogate for the rejection of

147 Kunstler Geography supra note 95 at 122ndash3 lsquoThus a Jacksonian student of landscapecan observe a Red Barn hamburger joint he can remark on its architectural resem-blance to certain farm structures of the past measure its dimensions figure out thematerials that went into building it record the square footage of its parking lot and never arrive at the conclusion that the Red Barn is an ignoble piece of shit thatdegrades the communityrsquo

148 Jacobs supra note 107149 In the United Kingdom the term lsquourban villagersquo is more prevalent than the North

American lsquoNew Urbanismrsquo although the design principles are similar the British liter-ature places greater emphasis on the ratio of employment to residential uses SeeBridget Franklin amp Malcolm Tait lsquoConstructing an Image The Urban Village Con-cept in the UKrsquo (2002) 1 Planning Theory 250

150 See Peter Katz The New Urbanism Toward an Architecture of Community (New YorkMcGraw Hill 1994)

151 For an early-modernist spatial manifesto see Raymond Unwi Nothing Gained by Over-crowding (London Garden and Town Planning Association 1912)

152 See Krier lsquoDrawingsrsquo supra note 90153 Leon Krier Rational Architecture (Brussels Archives drsquoArchitecture Moderne 1978) at

163154 Ibid at 180

market-driven development and the advocacy of a collective urban life-style and a more lsquoauthenticrsquo and popular democracy155 It therefore con-tains echoes of the rebellious impetus for Ebenezer Howardrsquos garden cityThe new-urbanist theories have become so influential that over time

they have overflowed the left banks of their original proponents andhave flooded into the political mainstream Neo-traditionalists havecome to embrace the American small town156 sustainable inner urbanredesign157 and regional and trans-county transit structures158 Thesevarious initiatives have typically been packaged with a quality of timeless-ness that espouses both classicism and ultra-modernism in an attempt toappeal to all sectors of western culture159

A form of new urbanism has claimed even the Prince of Wales as anadherent with HRH calling for a return to the design features of theEuropean city lsquoa well-formed square or courtyard [over] a random scat-tering of developersrsquo plotsrsquo160 The new-urbanist designs have in turnmorphed into the lsquosmart growthrsquo political movement and the lsquosustain-abilityrsquo environmental platform161 culminating in Ontariorsquos legislativeinitiatives incorporating sustainable development values into amendedregional development plans162 As one scholar has described the coales-cence of these contemporary planning theories

New urbanism tried to develop an environmental and social conscience smartgrowth manuals often illustrated the traditional urban forms popularised bynew urbanism and in the wake of environmental concerns about global warm-ing sustainability became the mot du jour of discourse about cities163

155 For a manifesto on lsquoauthenticityrsquo as a value in urban architecture see Andres DuanyElizabeth Plater-Zyberk amp Jeff Speck Suburban Nation The Rise of Sprawl and the Declineof the American Dream (New York North Point Press 2000)

156 Andres Duany amp Elizabeth Plater-Zyberk lsquoThe Second Coming of the American SmallTownrsquo (1992) 16 Wilson Quarterly 19

157 Doug Kelbaugh The Pedestrian Pocket Book A New Suburban Design Strategy (New YorkPrinceton Architectural Press 1989)

158 Peter Calthorpe lsquoThe Regionrsquo in Peter Katz ed The New Urbanism Toward an Architec-ture of Community (New York McGraw-Hill 1994) at xi

159 Peter Calthorpe The Next American Metropolis (New York Princeton ArchitecturalPress 1993) at 16

160 HRH The Prince of Wales A Vision of Britain (London Doubleday Press 1989) at 87161 See generally Pierre Filion Trudi Bunting amp Leonard Gertler lsquoCities and Transition

Changing Patterns of Urban Growth and Form in Canadarsquo in T Bunting and P Filioneds Canadian Cities in Transition The Twenty-First Century 2d ed (Oxford UniversityPress 2000) 1

162 Places to Grow Act SO 2005 c 13 as amended 2009 c 12 Schedule L s 18163 Jill Grant lsquoTheory and Practice in Planning the Suburbs Challenges to Implementing

New Urbanism Smart Growth and Sustainability Principlesrsquo (2009) 10 PlanningTheory and Practice 11 at 13 [Grant lsquoTheoryrsquo]

Much as these theories have conquered the discursive side of theurban planning discipline164 the rhetoric of mixed use walkabilitytransit-orientation and intensification has often been submerged in thereality of suburban development165 It is in the suburbs where consu-mers and developers converge in creating the real estate commoditiesthat make up the active markets166 and it is there that the theoreticalniceties of the planning profession confront the combined publicpri-vate infrastructure driven by politicians large landholders smallerbuilders and marketing agencies167 It is in the suburbs in otherwords where the theories are most severely tested and most oftenfail168 Empirically it is easy to discern the continued prevalence of sin-gle-family homes and auto-centric street design169 garage-front housesand private gated communities proliferate170 including in Canadawhere density tends overall to be more intense than in comparable UScities171

That is not to say however that new-urbanist design has not attractedits adherents in the market Indeed many of the features espoused bythat movement have become aesthetic staples of the contemporarydevelopment industry albeit in a less comprehensive way than envi-sioned by the totalizing theories that would spawn entire neo-traditionalcities172 Even those locales that have produced distinctly new-urbanistdevelopments however reveal a disjuncture between planning theory

164 Traditional suburban development has gone so out of favour in academic planningcircles that single-family automobile-oriented housing development has been blamedfor ills as far afield as the North American tendency toward obesity see Christine Krey-ling lsquoFat City Are We Building Sick Communitiesrsquo(2001) 67 Planning 4

165 Pierre Filion amp Kathleen McSpurren lsquoSmart Growth and Development Reality TheDifficult Coordination of Land Use and Transportation Objectivesrsquo (2007) 44 UrbanStudies 501ndash523

166 Grant lsquoTheoryrsquo supra note 163 at 14167 Michael Buzzelli amp Richard Harris lsquoCities as the Industrial Districts of Housebuild-

ingrsquo(2006) 30 International Journal of Urban and Regional Research 894 M Buzzelliamp R Harris lsquoSmall Is Transient Housebuilding Firms in Ontario Canadarsquo (2003) 18Housing Studies 369

168 Andrejs Skaburskis lsquoNew Urbanism and Sprawl A Toronto Case Studyrsquo (2006) 25Journal of Planning Education and Research 233

169 Karen Falconer Al-Hindi lsquoThe New Urbanism Where and for Whomrsquo (2001) 22Urban Geography 202

170 Stephan E Barton amp Carol J Silverman lsquoHistory and Structure of the Common Inter-est Communityrsquo in S Barton amp CJ Silverman eds Common Interest Communities PrivateGovernments and the Public Interest (Berkeley University of California Press 1994) 3

171 Larry S Bourne lsquoThe Urban Sprawl Debate Myths Realities and Hidden Agendasrsquo(2001) 41 Plan Canada 26

172 See Jill Grant lsquoExploring the Influence of New Urbanism in Community PlanningPracticersquo (2003) 20 Journal of Architectural and Planning Research 234

and practice173 In the first place new-urbanist developments are forthe most part quintessentially suburban creating tame insular enclavesmore characterized by their garden-city-like sedentary atmospherethan by any actual urban and therefore dangerous pulse174 They aretypically located in former green-field sites on the outskirts of citiesrather than in their core175 and maintain their suburban-style residen-tialretail mix higher densities do not appear to have reversed thebedroom quality of these commuter enclaves176 Accordingly the lsquosus-tainablersquo developments that ring major urban centres have not reducedbut rather have added to the phenomenon of sprawl that is theiravowed nemesis177

Moreover land values have placed new urban developments ndash alreadyamong the more expensive forms of new housing growth178 ndash in themost outlying locations The result has been new communities withincreasingly lengthy commutes to centres of employment179 Thus withthe exception of some rather elite gentrified enclaves in the urbancore180 housing for the middle class has resisted intensification of densi-ties and remained attached to the ever-expanding metropolitan periph-eries181 The lsquosmart growthrsquo suburbs may be better designed but they

173 On the impossibility of achieving Copernicusrsquos desired lsquounified intuitively visualizablerepresentation of the cosmos that captures what is really there and is therefore aes-thetically pleasingrsquo see Thomas Nickles From Copernicus to Ptolemy Inconsistency andMethod (Amsterdam Kluwer 2002) at 3

174 Peter Marcuse lsquoThe New Urbanism The Dangers So Farrsquo (2000)140 DISP The Plan-ning Review 4

175 Tom Angotti lsquoNU The Same Old Anti-Urbanismrsquo (2002) 151 Planners Network 18176 For a Canadian suburban new-urbanist example see David Gordon amp Ken Tam-

minga lsquoLarge Scale Traditional Neighbourhood Development and Pre-Emptive Eco-system Planning The Markham Experiencersquo (2002) 7 Journal of Urban Design 321For the implementation of new-urbanist theories in Canada in a more urban settingsee John Sewell The Shape of the City Toronto Struggles with Modern Planning (TorontoUniversity of Toronto Press 1993)

177 Jeffrey Zimmerman lsquoThe ldquoNaturerdquo of Urbanism on the New Urbanist Frontier Sus-tainable Development or Defense of the Suburban Dreamrsquo (2001) 22 Urban Geogra-phy 249 at 261 claiming that sustainable development lsquolegitimates growth at theurban fringersquo

178 Grant lsquoAimingrsquo supra note 12 at 167 lsquoEmulating urban conditions that generatehigh densities and facilitate mass transit use proves expensive in the contemporarycontextrsquo

179 Douglas Frantz amp Catherine Collins Celebration USA Living in Disneyrsquos Brave New Town(New York Henry Holt 1999)

180 John Caulfield City Form and Everyday Life Torontorsquos Gentrification and Critical SocialPractice (Toronto University of Toronto Press 1994)

181 Ray Tomalty The Compact Metropolis Growth Management and Intensification in Vancou-ver Toronto and Montreal (Toronto ICURR 1997)

are no less suburban and only in the stylistic sense lsquosmarterrsquo than themodernist single-family non-mixed-use variety182

Moreover the much vaunted public quality of open space in new-urbanist theory183 is for the most part a strictly theoretical aspect of new-urbanist developments Indeed critics have claimed that these high-endenclaves have actually privatized what was heretofore publicly accessiblespace184 and that the conversion of malls into town squares is more ofa mirage than a reality In point of fact the conversion just as frequentlymoves in the opposite direction with public sidewalks and streets beingclosed off and occupied by licensed cafeacutes and retail-oriented pedestrianthoroughfares This combined privatization of the formerly public realmand dressed-up publicization of what is essentially private property exclu-sive to community residents and customers creates in effect the oppositeof what new urbanism so strenuously advocates When this phenomenonoccurs in the urban core ndash its original and most natural home ndash the resultcan be the transformation of an authentic cityscape into an entertain-ment district185 marketed primarily to tourists and the wealthiest of resi-dents who live in a quasi-theme park186

In addition to all of that new urbanismrsquos sophisticated design standardsfor public spaces have augmented the de-industrialization of the down-town core areas in which it aspires to take hold187 To new-urbanist theor-ists this phenomenon reflects nothing more and nothing less than themunicipal circle of life lsquoa free society organically adjusting its habitatrsquo188

This adjustment however has resulted in a rather notorious loss of pub-lic housing189 forcing the poor to the periphery where their employment(but where no new-urbanist aesthetic) lies as the affluent repopulatethe core The ostensibly democratic and socially conscious planning

182 Hok-Lin Leung lsquoA New Kind of Sprawlrsquo (1995) 35 Plan Canada 4 describing designersuburbs

183 Charles Bohl Place Making Developing Town Centers Main Streets and Urban Villages(Washington DC Urban Land Institute 2002)

184 Karen Falconer Al-Hindi amp Caedmon Staddon lsquoThe Hidden Histories and Geogra-phies of Neotraditional Town Planning The Case of Seaside Floridarsquo (1997) 15 Envi-ronment and Planning D Society and Space 349 [Al-Hindi amp Staddon]

185 See Sharon Zukin Loft Living Culture and Capital in Urban Change (Rutgers NJ Rut-gers University Press 1989) describing New Yorkrsquos Soho district

186 Mark Gottdiener The Theming of America Dreams Visions and Commercial Spaces (Boul-der CO Westview Press 1997)

187 On sophistication and quality of design and the need for expertise in planning new-urbanist communities see FK Al-Hindi amp K Till lsquo(Re)placing the New Urbanism De-bates Towards an Interdisciplinary Research Agendarsquo (2001) 22 Urban Geography 189

188 Andres Duany lsquoGentrification and the Paradox of Affordable Housingrsquo Pro-Urb List-serve (31 October 2001) cited in Grant lsquoAimingrsquo supra note 12 at 170

189 Edward G Goetz Clearing the Way Deconcentrating the Poor in Urban America (Washing-ton DC Urban Institute 2003)

movement as a consequence has contributed to the destruction of poorand working-class neighbourhoods displacing entire communities in itseconomically classist wake190

Far from an lsquoemancipatory recovery of authentic forms of local urban-ismrsquo191 new-urbanist developments have all but eliminated local grass-roots urban life192 Although new urbanism in theory reacts against thesegregating alienating effects of modernist suburban development193 ndashindeed its advocates rail against traditional planning policies thathave lsquodeprived the poor of the most basic services while enriching thecountryrsquos most privileged citizens [and] fueled racial and ethnic hostil-ityrsquo194 ndash critics of suburban development that spawned the new-urbanistmovement have tended to ignore the costs of their own proposals andhave generally over-argued their case195 High-end residential commu-nities may have come ungated196 but the actual achievements of post-modernist urbanists are still far from planned egalitarian development197

IV Constitutional law Wringing water from a zone

The efforts of courts and planners have combined to produce a double-barrelled conundrum an indeterminate legal framework for land-usedecisions and an indeterminate planning framework for property-rights

190 Richard Milgrom lsquoEngaging New Urbanismrsquo (2002) 151 Planners Network 2191 Al-Hindi amp Staddon supra note 184 at 369192 Alex Anas lsquoThe Costs and Benefits of Fragmented Metropolitan Governance and the New

Regionalist Policiesrsquo Planning and Markets (1999) online lthttpwww-pamuscedugt de-scribing new-urbanist development as among the least affordable in the United States

193 See eg Katherine OrsquoRegan amp John Quigley lsquoWhere Youth Live Economic Effects ofUrban Space and Employment Prospectsrsquo (1998) 35 Urban Studies 1187 describinglsquosocial isolationrsquo experienced in the traditional suburban development

194 Jerry Frug lsquoThe Geography of Communityrsquo (1996) 48 Stan L Rev 1047 at 1048195 Peter Gordon amp Harry W Richardson lsquoCritiquing Sprawlrsquos Criticsrsquo (2000) 365 Policy

Analysis 1 at 2 lsquo[A]dvocates of smart growth offer little analysis or discussion of thecosts the implied tradeoffs the consistency of the vision or even the consumerrsquosdesire for such communitiesrsquo See also Randall Crane lsquoCounterpoint Accessibilityand Sprawlrsquo (2008) 1 J Transport and Land Use 13 at 13 lsquoIt is now more difficult toargue that sprawl is new peculiarly American or universally bad however one mightmeasure sprawl new American or badrsquo

196 See Citizens against Gated Enclaves v Whitley Heights Civic Association 28 Cal (2d) 451(Cal Ct App 1994) striking down homeownersrsquo associationsrsquo actions in fencing offpublic streets for limited access For a survey of changes in zoning laws necessary forthe move from traditional suburban development to new-urbanist development seeBrian W Ohm amp Robert J Sitkowski lsquoThe Influence of New Urbanism on Local Ordi-nances The Twilight of Zoningrsquo (2003) 35 Urban Lawyer 783

197 On confronting inequality as an as yet unattained goal of local government seeSheryll D Cashin lsquoLocalism Self-Interest and the Tyranny of the Favored Quarter Ad-dressing the Barriers to New Regionalismrsquo (2000) 8 Geo LJ 1985

decisions Conscious of the pervasive sense of lsquomarket failurersquo that haspressed planning theory into public service198 local authorities havenevertheless proved unable to fashion an overarching approach tolsquodeliver[ing] the improvements in environmental quality that are nowdemanded by electorates throughout the industrialized worldrsquo199

Accordingly they have come to implement their top-down powers bymeans of lsquocase-by-case evaluations and decisions where public bodiesretain the power to contract as they pleasersquo200 In an effort to combinethe needs of owners seeking development approval with the needs ofcommunities for amenities and services201 municipalities have resortedto deal making as a means of site-specific planning202

Although municipalities generally have no authority to impose affir-mative duties and design specifications on developers203 it has beenfound to be within a cityrsquos exercise of public powers to contract with adeveloper in relation to local amenities in return for developmentapproval204 Where there is statutory language sanctioning such arrange-ments205 local authorities can and do exact concessions and variouscontractual specifications from owners206 Accordingly even though

198 Anthony Harrison Economics and Land Use Planning (London Croom Helm 1977) at62 identifying lsquoa number of general ways in which markets may fail which are particu-larly relevant to land use planningrsquo

199 Pennington Planning supra note 11 at 1200 Stefano Moroni lsquoLand Use Planning and the Lawrsquo (2007) 6 Planning Theory 107201 In US terminology developers pay lsquovarious types of fees or provide goods in kind to

get permission to do their projects collectively known as ldquoexactionsrdquorsquo William AFischel Regulatory Takings (Cambridge MA Harvard University Press 1995) at 341Exactions have been judicially defined as lsquoland use decisions conditioning approval ofdevelopment on the dedication of property to public usersquo City of Monterey v Del MonteDunes 526 US 687 at 702 (1999)

202 Planning Act supra note 14 s 37 See David Ruston Letrsquos Make a Deal Negotiating DeveloperContributions through Voluntary Planning Agreements in New South Wales (Sydney AustraliaUniversity of New South Wales 2009) at 11 lsquoDeveloper Contributions have emergedwithin planning frameworks as the most common approach to funding the infrastruc-ture which supports the basic needs of population growth and new developmentrsquo

203 Re Mississauga Golf amp Country Club Ltd [1963] 2 OR 625 (Ont CA) But see Sanbay De-velopments Ltd v City of London [1975] 1 SCR 485 requiring specific agreements oversiting and design before issuing development approval

204 First City Development Corp v Durham (Regional Municipality) (1989) 41 MPLR 241 citedin Pacific National Investments supra note 21 at para 126 Bastarache J dissenting

205 Re Walmar Investments Ltd and City of North Bay [1970] 1 OR 109 (Ont CA) additionalreasons given [1970] 3 OR 492 (Ont CA) confirming that contractual arrangementswith developers are enforceable where there is specific statutory language authorizingsuch contracting

206 For a legal history of such contractual dealings between city governments and develo-pers see Vicki Been lsquoldquoExitrdquo as a Constraint on Land Use Exactions Rethinking theUnconstitutional Conditions Doctrinersquo (1991) 91 Colum L Rev 473 at 478ndash83

municipal governments cannot literally sell zoning207 they enjoy a case-by-case discretion to require developers to contribute local amenitiesand social services as a quid quo pro for the approval process208

Although Canada lacks a strong constitutional doctrine of regulatorytakings209 severe downzoning has occasionally been seen by courts asequivalent to a de facto expropriation210 The more pressing questionwith respect to zoning however is not so much with government tak-ings but with government lsquogivingsrsquo211 It seems obvious in other contextsthat if government doles out licences and privileges inconsistently or inaccordance with criteria unrelated to the sought-after licence212 a

207 Vancouver v Registrar Vancouver Land Registration District [1955] 2 DLR 709 See alsoDavid P Jones amp Anne S de Villars eds Principles of Administrative Law 3d ed (TorontoCarswell 1999) at 181 Since the 1950s however local authorities have had the powerto make payment for infrastructure a condition of subdivision approval see Townshipof Toronto v GS Shipp amp Son Ltd [1952] OWN 775 (OMB)

208 City of Toronto v Minto BYG Inc (2001) 20 MPLR (3d) 123 (Ont SC) The process isone of contract and must therefore be consensual Re Copthorne Holdings (1987) 36MPLR 122 (OMB) The provision for lsquobonusingrsquo with respect to height and densitycontained in section 162 of the City of Toronto Official Plan currently provides theregulatory platform for such arrangements within Toronto see City of Toronto v MintoBYG Inc [2000] OMB Dec No 1102 (OMB) application for leave to appeal dismissed[2001] OJ No 455 (QL) (Ont SC)

209 Gosselin v AG Quebec [2002] 4 SCR 429 at 491 describing the issue of whether section7 could operate to protect economic rights as an open question For a thoroughreview of the constitutional position see Bryan P Schwartz amp Melanie R BueckertlsquoRegulatory Takings in Canadarsquo (2006) 5 Washington University Global Studies LawReview 477

210 It has been the OMBrsquos position that where lands are downzoned for conservation orrecreational purposes for the benefit of the public at large (ie for park lands) thezoning change will only be approved where the governmental authority is prepared toacquire the lands within a reasonable time Re Nepean Restricted Area By-law 7376(1979) 9 OMBR 36 (OMB) Re Ottawa Zoning By-law 80-87 (1998) 21 OMBR 426(OMB) Cadillac-Fairview Corporation Ltd v City of Toronto (1980) 11 OMBR 97 (OMB)Minto Developments Inc v Ottawa (2002) 45 OMBR 240 (OMB) Re Brighton Official PlanAmendment No 20 (2003) 46 OMBR 78 (OMB) Elsewhere local government mustcompensate a landowner for sterilizing or downzoning of property in advance of apurchase of those lands see Columbia Estate Co v District of Burnaby [1974] 5 WWR 735(BC SC) zoning by-law rezoned land from industrial to parking area to reserve theland for possible future use as a park Mariner Real Estate Ltd v Nova Scotia (1999) 177DLR (4th) 696 (NS CA) citing Alberta v Nilsson (1999) 24 RPR (3d) 237 at para 48(Alta QB) stating that compensation is due when downzoning is of lsquosufficient severityto remove virtually all of the rights associated with the property holderrsquos interestrsquo Seealso Expropriations Act RSO 1990 c E26 and Local Government Act RSBC 1996 c 323s 914(2) (landowner to be paid compensation where lands restricted to public use)

211 Richard A Epstein Bargaining with the State (Princeton NJ Princeton University Press1993) at 4ndash5

212 Reference re Manitoba Language Rights [1985] 1 SCR 721 at para 59 describing the ruleof law as lsquopreclusive of the influence of arbitrary powerrsquo

constitutionally significant rule-of-law problem is thereby raised Thenotion of bonus zoning where local authorities grant to some whatothers cannot access raises the bar of examination potentially to thelevel of constitutional lawAccordingly municipalities review boards and courts have struggled

with the question of whether an lsquoessential nexusrsquo must exist between thezoning restriction being lifted and the property ownerrsquos concession of-fered in return213 Likewise they have flowed back and forth on whetherthere needs to be any lsquorough proportionalityrsquo between the value of theproperty concessions exacted from the owner and the harm or costs en-gendered by the spot zoning214 The quest in other words has been notso much for optimal efficiency in resource allocation as between devel-oper and local community215 but rather for efficient allocations within aconstitutional framework that prohibits governmentrsquos excesses216

Perhaps the best example is provided by the 1430 Yonge Streetappeal217 where the city of Toronto demanded and the OMB approvedthat the developer provide a number of amenities unrelated to the devel-opment itself These included a $25000 cash payment and the installingin a nearby park of a number of permanent benches and a water foun-tain for dogs218 The board reasoned that the magnitude of the section37 bonus was lsquocommensurate with the additional density or developmentrights achieved beyond those permitted as of rightrsquo219 It then concludedthat the additions to the park although several blocks from and notlsquorelated or justified by the projectrsquo220 did constitute a lsquobenefit to thepublicrsquo221 that could be imposed by the city under section 37 of the Plan-ning Act even in the absence of an agreement The court reasoned that

213 lsquoEssential nexusrsquo is the first half of the lsquounconstitutional conditionsrsquo doctrine formu-lated by the Supreme Court of the United States Nollan v California Coastal Commis-sion 483 US 825 (1987) [Nollan]

214 lsquoRough proportionalityrsquo is the second half of the lsquounconstitutional conditionsrsquo doc-trine under US constitutional law Dolan v City of Tigard 512 US 374 (1994)

215 William A Fischel lsquoThe Economics of Land Use Exactions A Property Rights Analysisrsquo(1987) 50 Law amp Contemp Probs 101 at 104ndash6 describing how the nexus and propor-tionality rules can on occasion reduce efficient allocations

216 Lee Anne Fennell lsquoHard Bargains and Real Steals Land Use Exactions Revisitedrsquo(2000) 86 Iowa L Rev 1 at 13 [Fennell] lsquoThe NollanDolan rules are perhaps bestunderstood as a highly visible symbolic protest against governmental excessrsquo Govern-ment excess may of course be benevolently motivated see Jerold S Kayden lsquoZoningfor Dollars New Rules for an Old Gamersquo (1991) 39 Wash UJ Urb amp Contemp L 3

217 Re City of Toronto Official Plan Residential Building Amendment [2003] OMB Dec No 926(OMB)

218 Ibid219 Ibid at para 18220 Ibid at para 22221 Ibid

since the public could see the developerowner lsquogetting additionaldevelopment rights the public should receive some tangible benefitrsquo222

Any requirement of a nexus that would link the park benches and foun-tain to the development itself223 was thereby thrown to the dogsOn the other side of the coin the OMB has on different occasions ac-

knowledged that starved as municipalities might be during times of fis-cal restraint lsquo[t]he Planning Act is not a revenue statutersquo224 In theprocess it has embraced the requirement that lsquothere must be a nexusbetween the development and the section 37 [of the Planning Act] ben-efitsrsquo225 Indeed the board has been at pains to specify that lsquothe benefits[exacted from the developer] pertain to the development (whether on-site or off) not to unrelated municipal projects (no matter how meritori-ous)rsquo226 On this reasoning planning officials cannot when they see adeveloper coming their way compile lsquoa wish list prepared on an ad hocbasis as a result of an application filed for a rezoningrsquo227

It should be noted that in Toronto section 37 agreements were stan-dardized as a matter of city policy in late 2007228 The policy requiresany bargain to be construed as resulting in development that in one wayor another constitutes lsquogood planningrsquo229 Torontorsquos Official Plan thengoes on to provide a list of criteria or guidance points for implementa-tion of this term230 In Toronto and other municipalities with similar

222 Ibid at para 23223 See Re City of Toronto Official Plan Redesignate Lands Amendment) [2005] OMB Dec

No 1 (OMB) [IrberHoldings]224 Sterling Silver Development Corp v City of Toronto [2005] OMB Dec No 1313 at para 80

(OMB)225 Ibid226 Ibid227 Sunny Hill Gardens Inc v City of Toronto [2006] OMB Dec No 595 at para 33 (OMB)228 City of Toronto Implementation Guidelines for Section 37 of the Planning Act (as adopted by

City Council at meeting of 19ndash20 November 2007) and Protocol for Negotiating Section 37 Com-munity Benefits (as adopted by City Council at meeting of 11ndash3 December 2007) [Implementa-tion Guidelines] online City of Toronto lthttpwwwtorontocaplanningpdfs37_consolidation_080117pdfgt

229 Ibid s 21230 City of Toronto Toronto Official Plan (Toronto City of Toronto 2010) (as consoli-

dated December 2010) at ch 511 online lthttpwwwtorontocaplanningofficial_planpdf_chapter1-5chapters1_5_dec2010pdfgt [Toronto Official Plan] TheOfficial Plan provides lsquo(a) The capital facilities must bear a reasonable planning rela-tionship to the increase in the height andor density of a proposed developmentincluding at a minimum having an appropriate geographic relationship to the devel-opment and addressing planning issues associated with the development [para] ((b)The development must constitute good planning be consistent with the objectivesand policies of this Plan and comply with the built form policies and all applicableneighbourhood protection policies and [para] (c) The use of Section 37 must be contin-gent upon adequate infrastructure to support the developmentrsquo

policies therefore the problem of identifying fair bargains ndash generallythought of as one of fair allocation of financial responsibility for commu-nity amenities ndash has been displaced with the search for lsquogood planningrsquoThe notion that the latter is more determinate than the former how-ever is itself one more illusion of the planning discipline and its atten-dant bureaucracyOnce the board adopts the view that the benefits to be received by the

city amount to something more specific than a general improvementto the neighbourhood231 the section 37 bargain can become a one-sided affair Indeed the process can ultimately convert an accommoda-tion that is otherwise described as lsquovoluntary and nothing morersquo232 intoa coercive arrangement The city must of course satisfy its onus in show-ing that there is some nexus between the development and the exactedbenefit and that the proposition conforms with the general criteria oflsquogood planningrsquo233 but after that the OMB has had little trouble in pos-ing the central question as to whether the exaction amounts to a fairreturn on the value added by the increased density or other zoning per-missions234 The courts have characterized zoning decisions as lsquotran-scend[ing] the interests of the immediate partiesrsquo235 ndash an attitude whichhas in turn led to a tolerance for extra-contractual terms imposed inthe guise of a section 37 agreement236

The fact that the bargains struck with a local authority are in effectless than voluntary puts a different face on those economic theories thathave endorsed zoning as a saleable right237 Building on the seminalwork of Ronald Coase238 economics scholars contend that bundling thepublic zoning power as yet one more negotiable instrument in the realproperty market has the effect of correcting market deficiencies by col-lecting and increasing accessible information and equalizing other

231 See Davenport Three Develco Inc v City of Toronto [2006] OMB Dec No 637 (OMB)232 Daniels HR Corp v City of Toronto [2007] OMB Dec No 176 at para 33 (OMB)233 On the cityrsquos onus under section 37 of the Planning Act see 1640830 Ontario Inc v City

of Toronto [2007] OMB Dec No 914 (OMB) see also the Toronto Official Plan crite-ria supra note 230

234 See Elderbrook Developments Ltd v City of North York [2005] OMB Dec No 980 (OMB)235 City of Ottawa v Minto Communities Inc (13 November 2009) Ottawa DC-09-001527 at

para 30 (Ont Div Ct)236 Even the most innovative contemporary views of contract law in which parole evi-

dence is permitted as proof of a collateral bargain fall short of imposing unbargainedterms on the basis of their objective fairness alone see City and Westminster Properties(1934) Ltd v Mudd [1959] Ch 129 (HC)

237 The economic analysis of zoning power as a community property right is most fully ex-plored in William A Fischel The Economics of Zoning Laws A Property Rights Approach toAmerican Land Use Controls (Baltimore MD Johns Hopkins University Press 1985)

238 Ronald Coase lsquoThe Problem of Social Costrsquo (1960) 3 J Legal Econ 1

transaction costs and community interests239 The result it is argued is amore efficient allocation of land resources across communities allowingdevelopers lsquoto engage in a proposed land use by paying a specific in-kindprice ndash the remediation of all cognizable negative externalitiesrsquo240 Freelyalienable zoning power under something equivalent to although moreall-encompassing than section 37 of the Planning Act241 would providecommunities with a means of compensating themselves for any negativeeffects of a development proposal and at the same time would providedevelopers with a means of valuing the zoning permission they seek242

Pitted against this market-oriented view of zoning as a commodifiedremedial approach to the market deficiencies is a view that such lsquoincen-tive zoningrsquo243 or lsquodensity bonusingrsquo244 does little more than to lsquorequirethe landowner to give up what he is legally permitted to have in order toobtain what he may already be entitled torsquo245 In Justice Scaliarsquos view

239 In this the property rights theorists are close intellectual relatives of institutionaleconomists see Lawrence Wai-Chung Lai lsquoNeo-Institutional Economics and PlanningTheoryrsquo (2005) 4 Plan Theory 8 For a useful assessment of Coasersquos relevance to plan-ning law see Kaplinsky supra note 4 at 27ndash30

240 Fennell supra note 216 at 68 Fennell goes on to note ibid that under a full-fledgedbargaining approach to development approval lsquo[t]he landowner thus holds a right tobuy something (here the communityrsquos entitlement to prevent development of a cer-tain nature) at a specified price (the in-kind remediation of cognizable negative ex-ternalities) while the community has no right to veto the transactionrsquo The proposalbuilds on notions that liability rules provide owners with a form of lsquocall optionrsquo underwhich they can elect lsquoto buy the entitlement for the damage amountrsquo Ian Ayres ampEric Talley lsquoSolomonic Bargaining Dividing a Legal Entitlement to Facilitate CoaseanTradersquo (1995) 104 Yale LJ 1027 at 1041 For other versions of this proposal see RobertC Ellickson lsquoSuburban Growth Controls An Economic and Legal Analysisrsquo (1977) 86Yale LJ 385 Ian Ayres amp JM Balkin lsquoLegal Entitlements as Auctions Property RulesLiability Rules and Beyondrsquo (1996) 106 Yale LJ 703 and Frederick W Acker lsquoPerfor-mance Zoningrsquo (1991) 67 Notre Dame L Rev 363

241 In 584952 Ontario Ltd v City of Toronto [2007] OMB Dec No 827 (OMB) the boardnoted that the sole trigger for section 37 benefits is increased density This limitationhowever is more typically honoured in its breach

242 For the seminal work on this theory of Coasean bargaining in land use see William AFischel lsquoA Property Rights Approach to Municipal Zoningrsquo (1978) 54 Land Econom-ics 64

243 Levitt v Town of South Kingstown RI Sup Ct LEXIS 12 at 6 (RI Sup Ct 2001) definingincentive zoning as lsquo[t]he process whereby the local authority may grant additionaldevelopment capacity in exchange for the developerrsquos provision of a public benefit oramenity as specified in the local ordinancesrsquo

244 PalmerSixth Street Properties v City of Los Angeles 175 Cal App 4th 1396 (Cal Ct App2009) at n 7 stating that lsquo[a] density bonus is an incentive in the form of a densityincrease which local governments provide in return for a developerrsquos voluntary inclu-sion of affordable housing units within a projectrsquo

245 Outdoor Systems v City of Mesa 819 P 2d 44 at 53 (Ariz SC 1991) Cameron J dissenting[Outdoor Systems]

such schemes provide owners with a lsquotake it or leave itrsquo option thatmakes the conditions demanded in return for development approval lsquoanout-and-out plan of extortionrsquo246 Characterizing the opposition to suchpseudo-bargains as a manifestation of lsquofear and loathingrsquo of governmentmanipulation247 commentators and courts in the United States havebegun to equate exactions ndash especially those imposed without proof ofnegative externalities flowing from a development proposal248 ndash with itsfar more sinister linguistic cousin249 The involuntary nature of land-ownersrsquo concessions to overreaching municipalities250 effectively permit-ting them lsquoto pay for the privilege of using their landrsquo251 has been seento violate fundamental constitutional principles that cannot be bar-gained away252

Despite an equally jaded view of negotiated bonuses making the occa-sional appearances in Canadian planning literature253 bargaining overheight and density exemptions from otherwise applicable zoning hasbecome increasingly entrenched As already discussed a direction touse ndash and in a general way how to use ndash the incentive provision of thePlanning Act has been expressly embedded in the text of Torontorsquos Offi-cial Plan254 And while this link to statutory authorization in one senserepresents rule-of-law compliance255 it also accentuates the fact thatproperty rights can be defined by deal making256 that is expanded or

246 Nollan supra note 213 at 837247 Robert L Glicksman lsquoFear and Loathing on the Federal Landsrsquo (1997) 45 U Kans L

Rev 647 Mitchell F Disney lsquoFear and Loathing on the California Coastline AreCoastal Commission Property Exactions Constitutionalrsquo (1987) 14 Pepp L Rev 357

248 William J Jones Insurance Trust v Fort Smith 731 F Supp 912 at 914 (WD Ark 1990) stat-ing that absent demonstrable externalities relating to the landownerrsquos proposal lsquothecondition which the City attaches to building permits is simple extortionrsquo

249 Outdoor Systems supra note 245 at 53 characterizing incentive zoning as lsquobureaucraticextortion if not judicial extortionrsquo see generally Gregory S Alexander lsquoTakings Nar-ratives and Powerrsquo (1988) 88 Colum L Rev 1752 at 1764ndash7

250 Fennell supra note 216 at 14 lsquo[T]he term used to designate the landownerrsquos concessionin the land use bargain ndash ldquoexactionrdquo ndash is not just heavily loaded but is actually a synonymfor ldquoextortionrdquorsquo citing Blackrsquos Law Dictionary 6th ed sub verbo lsquoexactionrsquo lsquoexactionrsquo islsquo[t]he wrongful act of an officer or other person in compelling payment of a fee orreward for his services under color of his official authority where no payment is duersquo

251 JED Assocrsquos Inc v Town of Atkinson 121 NH 581 (NH Sup Ct 1981)252 Robbins Auto Parts Inc v City of Laconia 117 NH 235 at 237 (NH Sup Ct 1977)253 See Stanley Makuch lsquoPlanning or Blackmailrsquo (1985) 25 Plan Canada 8254 Supra note 230255 AV Dicey Introduction to the Study of the Law of the Constitution (London Macmillan

1885) at 167 [Dicey] lsquoThe first of these features is the omnipotence or undisputedsupremacy [and] sovereignty of Parliamentrsquo

256 Patrick Devine Section 37 lsquoAn Update on Letrsquos Make A Deal Planningrsquo (5 March2008) online Fraser Milner Casgrain LLP lthttpwwwfmc-lawcomuploadenpublications2008RealEstate_Mar2008_Devine_Sliwa_Section37pdfgt

limited on an individualized basis contrary to the legal equality of rightsholders that permeates constitutional governance257

Indeed the freedom of contract that lies at the heart of section 37 ar-rangements may be less free and less contractual than the PlanningActrsquos language would suggest In a style reminiscent of Edward G Robin-son in Little Caesar258 the Toronto Official Plan like the old-schoolunderworld259 allows owners lsquoto elect to develop at such increasedheight andor density as may be permitted in return for providingspecified capital facilities or else to develop in accordance with theheight and density permitted by the zoning by-law in the absence of anysuch increasesrsquo260 It authorizes use of section 37 of the Planning Act foran assortment of listed purposes including the preservation of heritageresources261 the replacement of rental housing262 and the securing ofcapital assets for the community at large263 The Official Plan specificallyadopts the nexus requirement264 more to the point however use of thebonusincentive method is tempered by the admonishment ndash repeatedin the guidelines for the Planrsquos implementation265 ndash that the develop-ment facilitated by section 37 lsquomust constitute good planningrsquo266

It is thus the lsquogood planningrsquo criterion that ultimately inhibits a muni-cipalityrsquos overzealous attempt to extract ndash or exact ndash water from a land-ownerrsquos stone And since planning decisions like all administrative actsmust be made lsquoldquoaccording to lawrdquo and in accordance with proper prin-ciples reflected in the ldquopolicy and objects of the [governing] Actrdquorsquo267

257 Dicey supra note 255 at 167 lsquoIn England the idea of legal equality or of the universalsubjection of all classes to one law has been pushed to its utmost limitrsquo

258 Little Caesar 1930 Warner Brothers see Rob MacDonald lsquoUDI Forecast LuncheonSpeechrsquo Goodman Report (23 January 2009) online lthttpwwwgoodmanreportcomExpertaspid=205gt describing lsquothe blackmail cloaked as voluntary contribu-tions that often go along with the development approval processrsquo

259 See Re Mediplex of Connecticut Inc 319 Decisions and Orders of the National Labor Re-lations Board 281 at 288 (1995) where a witness recounts the threat that he lsquohad anice carrsquo and that lsquoit would be a shame if anything happened to itrsquo See also State of Ari-zona v Walker 2008 WL 2168004 at para 17 (Ariz Ct App 2008) dismissing the defen-dantrsquos argument that prosecutorrsquos release document amounted to lsquoan offer he[couldnrsquot] refusersquo

260 Toronto Official Plan supra note 230 s 511 policy 2261 Ibid s 511 policy 5(a)262 Ibid s 511 policy 5(b)263 Ibid s 511 policy 5(d)264 Ibid s 511 policy 1(a)265 Implementation Guidelines supra note 228266 Toronto Official Plan supra note 230 s 511 policy 1(b) Implementation Guide-

lines supra note 228 s 1 lsquoThe proposed development must represent goodplanningrsquo

267 Oakwood Developments supra note 37 at para 16 citing Padfield supra note 86 at 1034

the meaning of lsquogood planningrsquo is central to the development approvalenterprise All of which brings the analysis full circle to the fantasies ofland-use planning We may turn out to be deferent and to permit quasi-voluntary regulatory bargains based on a mythological sense of lsquogoodplanningrsquo268 The rule of law ndash lsquoopen stable clear and general rules[with] even-handed enforcement of those lawsrsquo269 ndash cannot be satisfiedby a discipline based on little more than ideology and taste270 And whilethe legislative authorization for these bureaucratic practices may providethem with a modicum of protection from review by the courts271 thedebate over these legal values is still very much engagedIt is not enough to say as planners are wont to that lsquodesign mat-

tersrsquo272 or that lsquoaesthetic standards are an appropriate component ofland usersquo273 As can be seen in the suburban versus new urban debatethere is a dearth of objective criteria on which to measure one planningtheory against another Ironically design factors the one set of criteriatraditionally been thought to be off regulatory limits274 have gone fromnothing to everything (or at least to a significant factor) Aesthetic in-terests are more than just one among many ways to exercise the statersquosregulatory power over property275 decision makers are now fullyengaged in ensuring that a new development be lsquoa place of pleasingdesign rather than an ugly sore a blight on the community which robs it

268 At least not in a singular identifiable sense See Grant Planning supra note 88 at 26lsquoDoes the good community require a particular shape For every household willingto buy a home in a compact transit node another two to four households may choosedetached homes in the suburbsrsquo

269 British Columbia v Imperial Tobacco Canada Ltd [2005] 2 SCR 473 citing PW Hogg ampCF Zwibel lsquoThe Rule of Law in the Supreme Court of Canadarsquo (2005) 55 UTLJ 715 at717ndash8 See also Bacon v Saskatchewan Crop Insurance Corp [1999] WWR 51 (Sask CA)confirming parliamentary sovereignty

270 See Stephen L Elkin Politics and Land Use Planning The London Experience (Cam-bridge UK Cambridge University Press 1974) at 18 describing the original impetusfor town planning as having two dimensions lsquoaestheticarchitectural and socialrsquo

271 See Authorson v Attorney General of Canada [2003] 2 SCR 40 at para 15 lsquoThe Departmentof Veterans Affairs Act s 51(4) takes a property claim from a vulnerable group in disre-gard of the Crownrsquos fiduciary duty to disabled veterans However that taking is withinthe power of Parliamentrsquo

272 Edward T McMahon lsquoDesign Mattersrsquo (1996) 21 Planning Commissioners Journal 5273 Anderson v Issaquah 70 Wn App 64 at 82 (Wash CA 1993)274 Bostock v Sams 52 A 665 (Md SC 1902) prohibiting refusal of a building permit on a

subjective assessment of value by city officials See also Cochran v Preston 70 A 113 (Md1908) at 114 lsquo[P]urely aesthetic restrictions on buildings will not be toleratedrsquo

275 See People v Stover 240 NYS 2d 734 (NY Ct App 1962) appeal dismissed 375 US 42(1963) See also Kaplinsky supra note 4 at 227 which speaks of converging trends oflsquoincreasingly stringent engineering and design standards a continuous shifting of thecosts of improvements and services from municipalities to developers and increasedpublic control over all aspects of subdivisionrsquo

of charmrsquo276 In the absence of objective planning criteria all the plan-ning profession ndash and consequently the law ndash has to offer is an effort toensure that the city be lsquobeautiful as well as healthyrsquo277

V The sword in the zone

Just as lsquoblight is an elastic conceptrsquo278 so is its opposite lsquogood planningrsquois as elastic a concept as bad planning all of which is as elusive as goodand bad taste279 When the subjectivity of the governing planningtheories is coupled with the coercive possibilities of incentive zoning280

the mix is antithetical to the rule of law281 It is simply not possible todetermine whether the local authority lsquohas taken into considerationmatters which were not proper to be regarded or has omitted to con-sider matters which were of direct importancersquo282 since there are noagreed upon criteria which span the potentially applicable planning ap-proaches The criteria are inherently subjective in every sense of theterm283

It is a fundamental that in a society lsquofounded on the rule of law the statute and regulations define the scope of the [public officialsrsquo] dis-cretionrsquo284 It is equally obvious that no valid discretion exists wherethe exercise of the administrative power becomes lsquoequated with

276 Berman v Parker 348 US 26 at 33 (1954)277 Ibid278 In the matter of Parminder Kaur v New York State Urban Development Corp 2010 NY Int 123

(NY Ct App 2010)279 See Curran Bill Posting amp Dist Co v City of Denver 107 P 261 at 264 (Col SC 1910) lsquoThe

cut of dress the color of garment worn the styles of hat the architecture of the build-ing or its color may be distasteful to the refined senses of some but government canneither control nor regulate in such affairsrsquo

280 For the perfect combination of the aesthetic and marketable nature of zoning controlsee Ehrlich v City of Culver City 911 P 2d 429 (Cal SC 1996) upholding the cityrsquos lsquofee inlieu of artrsquo exaction on developer

281 See Roncarelli supra note 85 at 142 condemning executive action lsquodictated by and ac-cording to the arbitrary likes dislikes of public officersrsquo as contrary to the rule oflaw

282 R v Paddington Valuation Officer ex parte Peachey Property Corp Ltd [1966] 1 QB 380(CA)

283 Indeed the US Supreme Court has acknowledged that planning choices are often amatter of disputed politics see Euclid v Ambler Realty Co 272 US 365 at 393 (1926) lsquoIf[zoning ordinances] are not satisfying to a majority of the citizens their recourse isto the ballot ndash not the courtsrsquo citing State v New Orleans 97 So 440 at 444 (LaSC 1923)

284 City of Montreacuteal v Montreal Port Authority [2010] 1 SCR 427 at para 33

arbitrarinessrsquo285 Since it is likely that successive municipal councils orland-use regulatory bodies lsquomight never agree on what the publicneeds from an aesthetic standpointrsquo286 the system puts city officialsrsquo vetopower over land use lsquoat a continual seesawrsquo287 That state of ideologicaland aesthetic flux288 in turn inevitably abuses constitutional values289

There is good reason that lsquo[b]eauty has been the queen in many areasbut has never been a favorite of the lawrsquo290 Defence of the community ndashthe zoning shield ndash has become in the hands of municipal authorities ameans by which to slash away at the individual landowner ndash a regulatorysword This sword in the zone cries out for a substantial reduction orpossibly the elimination of current local government practices There isarguably a discernible need for a new autonomous deal for citiesenabling them to control their finances291 toxic emissions292 and othermeasurable harms293 but the imposition of good taste in the guise ofgood planning serves no such cognizable endsWholesale change is an admittedly impractical notion given the

deeply ingrained place of zoning law in the land-regulatory regime294

Our neural pathways are impressed with the image of a regime of localgovernance of which zoning is an integral part Nevertheless somethingmust be done to transform a regulatory system built at least partly onsubjective aesthetic and ideological criteria one that has managed to

285 Ibid286 City of Youngstown v Kahn Bros Building Co 148 NE 842 at 844 (Ohio SC 1925)287 Ibid288 Appeal of Medinger 104 A 2d 118 (Pa SC 1954) stating that aesthetic legislation can

only be applied in a subjective and capricious manner and thus violates the Four-teenth Amendmentrsquos due process clause

289 Charter supra note 102 lsquoWhereas Canada is founded upon principles that recog-nize the rule of law rsquo Hill v Church of Scientology [1995] 2 SCR 1130 recognizinglsquoCharter valuesrsquo as a source of constitutional law Godbout v City of Longueuil [1997] 3SCR 844 lsquoIndeed municipalities ndash although institutionally distinct from the provincialgovernments that create them ndash cannot but be described as ldquolsquogovernmental entitiesrdquorsquoat para 50

290 William H Agnor lsquoBeauty Begins a Comeback Aesthetic Considerations in Zoningrsquo(1962) 11 Journal of Public Law 260

291 See eg United Taxi Driversrsquo Fellowship of Southern Alberta v City of Calgary [2004] 1 SCR485 expanding the interpretation of a municipalityrsquos business licensing authority

292 Croplife Canada v City of Toronto (2005) 75 OR (3d) 357 (Ont CA) upholding a pesti-cide control by-law

293 Spraytech v Town of Hudson [2001] 2 SCR 241 at para 31 invoking the lsquoprecautionaryprinciplersquo in upholding a by-law banning lawn spray based on material risk of harm

294 Carol M Rose lsquoPlanning and Dealing Piecemeal Land Controls as a Problem of LocalLegitimacyrsquo (1983) 71 Cal L Rev 837 at 844 stating that privatization of planning re-gimes lsquowould require a forbidding array of changes in current land use regulatorypracticersquo also Fennell supra note 216 at 85 lsquoThe long history of zoning and land useplanning presents a formidable obstaclersquo

convert the methodical property-value shield of zoning law into animpulsive property-value sword of development control At the veryleast courts must ensure that land-use controls and their concomitanttrade-offs bonuses and exactions go no further than necessary in addres-sing the direct externalities of development295

The built environment may well connect with the cultural environ-ment296 all of which is no doubt important for societyrsquos future297

Indeed planning design and city identity have merged in the discourseof contemporary urban affairs298 so as to legitimate municipal officialsrsquouse of their regulatory authority to protect against signage clutter andother visual assaults on the local public image299 The overriding legaltreatment however must strain to avoid aesthetic judgment300 For aplanning bureaucracy to lead rather than to follow the material cul-ture is not only to take an illiberal turn from the ordinary process301

295 For a market-oriented proposal for wholesale deregulation and replacing of tradi-tional zoning law see Doublas W Kmiec lsquoDeregulating Land Use An Alternative FreeEnterprise Development Systemrsquo (1981) 130 U Pa L Rev 28 For a more modestcommon-law alternative aimed at internalizing the externalities of development seeRobert C Ellickson lsquoAlternatives to Zoning Covenants Nuisance Rules and Fines asLand Use Controlsrsquo (1973) 40 U Chicago L Rev 681

296 On the relationship between culture (especially future-oriented cultural decay) andurban architecture and the looming crisis in both see James Howard Kunstler TheCity in the Mind Notes on the Urban Condition (New York Simon amp Schuster 2002) at141 lsquoIf Las Vegas is truly our city of the future then we might as well all cut our ownthroats tomorrowrsquo

297 See Norman Williams lsquoLegal Techniques to Protect and to Promote Aesthetics alongTransportation Corridorsrsquo (1968) 17 Buff L Rev 701

298 Koray Velabeyoglu Urban Design in the Post-Modern Context (Izmir Turkey Izmir Insti-tute of Technology 1999) at 14

299 City Council v Taxpayers for Vincent 466 US 789 at 807 (1984) upholding a prohibitionon lsquothe visual assault on the citizens of Los Angeles presented by an accumulation ofsigns posted on public propertyrsquo

300 See Pacesetter Homes Inc v Village of Olympia Fields 244 NE 2d 369 (Ill Ct App 1968)invalidating the delegation of decision making to an architectural advisory committeealso Metromedia Inc v San Diego 453 US 490 at 507ndash8 (1981) stating that a cityrsquos aes-thetic interests are substantial enough to justify content-neutral prohibition againstbillboards

301 Monika Sharma Neetika Mor amp Amit Kumar Urban Typology at 4 online 7-Urban-Typology lthttpwwwscribdcomdoc32003159gt lsquoCulture is the prime force thatdevelops settlement types by trials in long time periodsrsquo Graeme Evans Cultural Plan-ning An Urban Renaissance (London Routledge 2001) at 32 lsquo[A] lack of democraticconsensus and a cultural planning approach are common [to planning typologies]rsquoIn fact the governmental approval apparatus tends to straddle imposing and reflect-ing the material culture For an illustration of this ambiguous relationship and a thor-ough analysis of how the subdivision approval process is lsquodesigned first and foremostto maximize the communityrsquos influence on the form of the developmentrsquo see Ka-plinsky supra note 4 at 229 and ibid ch 3 at pt 3

it is to immerse oneself in a fallacy302 The illusion of legal craftsman-ship of sculpting the planned city and suburb is a fantasy whose timeis up

302 Dick Stanley lsquoThe Three Faces of Culturersquo in Caroline Andres Monica Gattinger MSharon Jeannotte amp Will Straw eds Accounting for Culture Thinking Through CulturalCitizenship (Ottawa University of Ottawa Press 2005) at 20ndash1 stating that culture isrelated to citizenship not hierarchy or authority Herbert J Gans lsquoUrban Vitality andthe Fallacy of Physical Determinismrsquo in Herbert J Gans ed People Plans and Policies(New York Columbia University Press 1991) at 35 noting the lsquophysical fallacyrsquo thatleads critics and contemporary planners to lsquoignore the social cultural and economicfactors that contribute to vitality and dullness and blind(s) [them] to the truecauses of the cityrsquos problemsrsquo

THE SWORD IN THE ZONE FANTASIES OF LAND-USE PLANNING LAW
- A KILLING TWO BURBS WITH ONE ZONE
- B THEYrsquoLL ZONE YOU WHEN YOUrsquoRE RIDING IN YOUR CAR
- - IV Constitutional law Wringing water from a zone
  - V The sword in the zone

Page 2: Ed Morgan* THE SWORD IN THE ZONE: FANTASIES OF LAND …...15Ian Wright, ‘In Search of Grander Humane Visions’ (1996) 36 Plan Canada 3. 16See Paul E Peterson, City Limits (Chicago: