A developer's plan to build a condo project in Toronto's King-Spadina area is darkening the desires of a city couple who want to continue generating their own power from solar energy. In a landmark case, the Ontario Municipal Board (OMB) is going to decide whether 59 Developments Inc.'s proposed 13-storey condo will be allowed to cast a shadow on a socially conscious power source.
The solar panels are located on a studio/house owned by industrial designer Richard Brault, who together with his partner, Dianne Croteau, has occupied the three-storey structure in Toronto's historic King-Spadina area for nine years.
The pair began planning the photovoltaic project in 1997, and hooked it up for a total cost of $30,000 in 1999. Mounted just below the roof above the building's courtyard entrance, the 800-watt system supplies about 25 per cent of their power needs and is part of a special Toronto Hydro pilot project encouraging renewable energy development.
It was designed to clear the shadow of any building that conforms to the area's development bylaws, which allow a 23-metre height (about eight storeys) with an upper-level setback on the top floor. Problem is, the proposed development on the south side of Richmond across from Brault's home exceeds that height.
When 59 applied to the city for a regulatory permit, it was denied. The city argued that the project showed "complete disregard for height and upper setback provisions."
But the company appealed the city's ruling to the OMB, a quasi-judicial committee appointed by the provincial government that has authority to overrule municipal decisions.
"When we made this investment, we were relying on certain things, and one of those was the zoning. We think that's one mechanism to protect our investment," says Brault. "If the OMB overturns the city's decision, it sets a very unfortunate precedent for people who might consider doing the same thing we've done."
The developer, however, sees it differently. "There is no right to light at this point," says Phillip Marsland, a principal partner in 59 Developments.
"What you also have to consider is that this building is being constructed in a downtown urban environment, and that is the nature of the beast. The city has a fairly comprehensive official plan, and it is fairly definitive as to what streets and areas have a right to light. Our project does not fall into any of those categories."
While the official plan doesn't specify how much light should be available to Brault's street, in written reasons rejecting the project the city states that it's "important" to recognize the negative impacts the shadow of Marsland's building will cast on specific neighbours.
The building's height generates "a substantive increase in the shadow impacts on neighbouring uses," which, according to the document, include a 46-unit apartment building, a community garden and "a mix of low-scale residential and non-residential uses."
According to the city's director of planning law, lawyer John Paton - who is not directly involved in this case - the issue of light comes up often in OMB cases, along with maintaining the character of neighbourhoods. But it's unusual, he says, for the question of light to be debated as an energy source.
"I can't say I've seen the argument come up all that often as it relates to solar electricity," says Paton, "but it is certainly not irrelevant. It's something that could and should be argued."
Since the city's refusal of 59 Developments' proposal and the builder's first appearance before the OMB in February, Marsland's company has modified the design of its proposal, known as Five Nine on Richmond. The revised proposal, submitted to the city in May and also rejected, has a height of 39.6 metres, or 13 storeys, and the top floor has been set back 3.3 metres.
The principal parties at the hearing are the city and 59 Developments. Brault is the only other recognized participant, a distinction that allows him to give evidence but not to cross-examine witnesses.
His evidence includes a computer shadow study showing that the revised proposal would shade his solar panels for six months of the year between 1 and 3 pm, peak generating time for his solar panels. In another twist, the development company offered to relocate the panels to the upper roof of Brault's house, but he says studies show that move wouldn't clear the building's shadow either. A decision is expected in the fall.
"This has been a tiring process, but we are grateful to have had the opportunity to present our case," says Brault. "The city is taking it very seriously. The OMB has listened to everything we've had to say. There's a lot of substance now behind the reasons why people should have the right to light, and renewable energy is one of them. It has to be dealt with."