The Hearing (part i)

Our lawyer had the one side of the central microphone stand. She was backed up by our hired planner, our transportation expert, and a few local residents. The other side of the microphone stand held the City and the Developer side, sitting intermingled, and chatting and giggling amongst themselves in their black suits.

The City lawyer and the developer’s Toronto-based lawyer shared a table. Their side included senior city planners and case staff and planning consultants and transportation engineers and architects.

The owners of Taggart came in occasionally, and sat amongst their hired consultants and city staff to the point one couldn’t recall which person belonged to which side. Maybe it didn’t matter anyway.

At the introduction of the parties, our lead lawyer, working pro bono, revealed it was her first time before the OMB. This evoked gales of laughter from the city and developer sides and considerable smirking from the chair.

It played out like a bad TV cartoon with one group of children pointing their fingers at the “out” group and calling insults. It was a bizarre start to the hearing. Justice is always dignified.

The City and Developer wanted their architect to be first on the stand, to “introduce” the proposed building. In a totally unbiased way, they claimed. We objected.

Days later, when it came time for the architect to give his professional opinion, the city and developer made a big deal of how he was just going to give the same unbiased intro that the unenlightened folks on our side had objected to.

After those snide remarks, the architect proceeded to give extensive praise to his wonderful project. Praise that was so fulsome I thought it was embarrassing. But unbiased.

Let the Experts Pronounce

At the OMB, the chairman hears evidence from Experts. These experts swear an oath to give their professional opinion as the truth, the whole truth, and nothing but the truth.

That the expert is the same person who created the material justifying the development in the first place, or is in the employ of the developer and being paid to give his or her evidence, isn’t supposed to influence them one wit. Totally unbiased.

There are a series of measures to establish one’s expertness. This included university credentials, membership in professional associations, year of experience, being on a city listing, or having been recognized by the OMB in previous cases.

This latter point gave rise to several witnesses being introduced on a “you remember Joe from the XYZ case argued last year or the ABC case back in ‘09” type of thing. All very collegial and chummy.

Our transportation witness has a degree in planning and international experience. Naturally our opponents mocked the lack of Ottawa experience.

More astoundingly, as soon as he introduced a drawing that showed road dimensions, they objected vociferously that as he wasn’t a professional engineer he could not introduce or give evidence to a drawing, even if provided by a municipality itself. So a transportation planner can’t refer to turn radii on streets unless he is certified to draw them. Hmm.

Their transportation planner however, having a veritable alphabet of professional designations, was permitted to plod through lots of evidence. He spent an enormous amount of time on access to the garage, which at first puzzled us, as we had no issues with the garage access.

As the trail  hearing went on, we were further baffled why the city and developer spent hours and hours on items we were not contending. For example, we had no objection to there being windows in the proposed building.

 

 

The expert justified his traffic counts as being from standard reference materials derived from studies in dozens of cities. He didn’t bother to point out that most of the studies are from the US, most are from suburban and exurban cases, most from areas with transit share of less than 1%, and of dubious-to-no relevance to a central Ottawa site next to a transit station with high modal split.

Apparently no one has bothered to calibrate the models to Canadian cities, let alone Ottawa. But certifiably expert.

After a lengthy elaboration of a proof that the street could handle all the traffic generated by the apartment building, we asked why they needed so much parking in excess of projected demand, since a major selling point of the building was that it was near transit?

The answer was … the amount of parking is a marketing decision by the developer and the transportation plan comes after that.

That’s pretty much the story of the whole neighbourhood plan too: the plan justifies the developers wishes rather than planning first, developing after. Rinse and repeat.

Direct Answers

During cross examination, we asked their transportation expert if a UPS or FedEx or para Transpo van could turn around on the stub end street at the front door of the apartment building.

His answer began with a definitive “Yes!”, followed by a lengthy elaboration, and concluding with a slightly more mumbled sum up, that a passenger car could make the turnaround. That FedEx truck may still be stuck there forever for all we learned.

Similarly, he was allowed to introduce drawings. He presented evidence of a standard street width permitted in Ottawa as being not much larger than Norman Street. His version of the whole truth neglected to point out that a street with two ends is somewhat different from a  stub end, that Norman wasn’t a new build, that it didn’t have extensive setbacks to the sidewalk or to the front of the houses as imagined on the drawing.

Mind, consistency was notable in its absence at this hearing.

The Architect argued that he put a large entertainment room on the roof of the building to improve its looks, at the urging of the Urban Design Review Panel to improve the cornice line, and minutes later argued that the room was invisible and no one could see it.

That the Urban Design Review Panel doesn’t review the propriety of the city’s zoning, according to my memory, but only the proposed building design, didn’t stop the developer from claiming the UDRP “had no objections” to putting a nine storey building on the street. Well, duh !

Snow … Storm

Our witnesses introduced photographic evidence that the already-narrow street became much narrower after snowfalls. One of the photos had a camera date on it, and the city’s lawyer jumped up with a Environment Canada report for that date, showing that it was a late winter snowfall, in March.

This gave him the opening to spend a lot of court time pointing out how rare snowfalls are in Ottawa in March. That the issue was the snowbank, and not the date, meant not a whit, as he shifted the focus to the time of year rather than the snowbank itself.

I’m not sure if he thought the date was relevant, or that chairman was so dense as to not recognize a diversionary tactic.

Later, another resident witness referred to the snowbanks on the street, giving the city lawyer the opportunity to jump up and go through the EnviroCan report all over again, emphasizing the unusualness of snow falls in Ottawa in March.

It was a tich ironic, since the hearings were held in February during record snowfalls in Ottawa.

Good for the Goose

The City had told the developer in their application for approval of the building that it was inappropriate to compare their building to higher buildings in the adjacent Ward (west of the OTrain), because those buildings were in a different planning designation.

And then the city proceeded to continually refer to a photo that contrasted the proposed building on Norman to the taller ones it had told the developer not to use as comparisons.

We were repeatedly told that the nine storey apartment building was compatible to the two storey houses across the stub end street because they were so similar.

How similar?

Similarities include the apartment building having windows facing the street, as did the houses. And that the apartments were to be used for residential purposes, just like the houses along the street. And that there were sidewalks in front of both. And both had doors! Imagine that! Totally similar. Straight face all the time.

above: drawing showing windows on one version of the proposed building, which according to the city is very significant. 

And that the proposed nine storey building backing onto two storey houses facing Beech Street and across from two story houses on Norman formed a nice transition between the two because the houses on Beech, might, someday, include a restaurant or something, so the nine floors was a land use transition even if wasn’t a height transition.

Seriously.