Ontario Municipal Board (OMB) hearings aren't normally the stage for protracted debates about growing garlic. Indeed, I'm sure I detected exasperation on the face of J. R. Boxma, the OMB member presiding over the hearing into a proposed building at 533 Richmond West, when lawyers and witnesses started sparring over definitions of the "growing season" and talk turned to pungent herbs and the impact of shade.
Thanks to the city and the Alex Wilson Community Garden, though, vegetables - specifically, plants grown in the public park at 552 Richmond West across from the proposed development - were front and centre. The hearing that began in February 2004 and continued through a couple of weeks in June and July recently came to a conclusion with the December 30 release of the OMB's decision.
Garlic won. Or rather, sunlight won.
The OMB dismissed an appeal by Portland Investments Inc. to build a 13-storey residential condominium at the southeast corner of Richmond and Portland. The developer's proposal for a 39.6-metre-high building was almost twice the 23 metres allowed for the site. When the city denied the developer's application for the land to be rezoned, Portland Investments Inc. appealed to the OMB, which has the power to overturn municipal decisions.
In arguing against the proposed development, the city relied on the policies set out in the King-Spadina Part II Plan, which provides an exhaustively detailed planning framework for guiding growth in this rapidly changing area. Height battles are nothing new for the city, developers and the OMB, but one of the things that made this hearing different - in fact, precedent-setting - was that the developer's proposal was also being contested by a community garden.
At the hearing, Alex Wilson Community Garden member Richard Brault argued that a 39.6-metre building would shorten the growing season for a significant number of allotment plots in the park and shade the entire garden from late October to late February, making it less appealing as public open space even outside of the growing season.
For the garden, the issue was the right to sunlight, something that's not enshrined in law.
In dismissing the developer's appeal, the OMB's Boxma stressed established urban planning reasons ("This proposal is simply too big - it is an attempt to over-build in this relatively small lot") and reinforced the importance of the city's master plan for the King-Spadina area.
But he also went further, nudging sunlight rights into the set of factors involved in planning decisions, by citing shadow impacts not only on the community garden, but also on the shared social space of the sidewalk on the north side of Richmond (which would have seen additional shade for six months of the year), on the solar panels of a live-work studio at 550 Richmond West and on the supportive housing facility Portland Place (where 27 tenants in south-facing units would have experienced increased shade from the development).
Just think - along with garlic and gardens, the OMB ruled for sidewalks, solar panels and residents of social housing. In the last days of a dark year, sun won.