Development is constantly in the news these days, between governments of all levels looking for ways to speed it up to citizens’ and resident groups expressing opposition to particular developments. Brighton is no different: we’ve had some big development proposals lately, and residents have expressed opposition to some of them.
I thought I’d address some common arguments against development here, maybe as a handy reference for when new development proposals come up, because the rationale by which we accept or reject them remains the same almost regardless of what the proposal is. The rationale includes property rights, planning considerations, and the interests of the community.
Property Rights
This concept goes back to before there was a Canada, and everyone understands it in the abstract: people get to do what they want on their own land, provided it’s legal. Nonetheless, we tend to have both less and more rights than we assume.
First, we have less rights than we think. In our system of land, we don’t actually own it. Land ownership in Canada is actually a right to use land that is owned by the Crown. The law behind it is archaic, complex, and problematic (maybe another post for another day) but the point here is that none of us have absolute right to our land. Our use of the land is still subject to regulation (and taxes) by the government. Think of it as a subscription service.
Our use of the land is also limited in the sense that we have surface rights: we might “own” the land, but not what’s under it or over it or around it. We have no inherent right to the minerals below or the sky above or the view around.
That brings us to where people have more rights to their land than we sometimes think. Because our right to our land has everything to do with whether our use is legal, and nothing to do with whether or not our neighbours like it. When people write to me or come to council to express opposition to a development, it’s very often the closest neighbours, the people who will be the most impacted by the change in their neighbourhood. I am tremendously sympathetic to people: change is hard, and the people I hear from very often start their letter by indicating how long they’ve been a resident there, showing just how big of a change it will be to them to have a view disrupted or a difference in traffic flow on their street or some other change. (The change people tend to object to most often is related to aesthetics: they think a particular building is or will be ugly. I can respect someone’s opinion without having to share it, but I’m always surprised to hear from people that their aesthetic opinions should trump other people’s property rights.) But no matter how big of a change it is for neighbours, so long as it’s still a legal change — which is to say that the proposed use of the property meets the requirements of federal, provincial, and municipal laws — then in our system that use is allowed.
Sometimes I ask people “if this was your property, would you like it if your neighbours could veto your choice of how to use it?” Like most of our laws, property rights work best when we all recognize that in order for any of us to have those rights, we must all have those rights, even when I dislike how you want to use them.
Planning Considerations
Planning refers to both a municipal department that regulates development according to provincial and municipal laws and regulations, and the theory behind the way those laws and regulations are developed. Planners look at the shape of a community — types of housing, types of commercial, how traffic flows, etc — to determine the best way to grow a community, using lots of data and projections to try to lay out the ideal shape of the town as it develops over time. Think of the zag in County Road 2, where Main St meets Prince Edward St: it’s been there for 150 years, but if they’d had a Planner back then it wouldn’t have been there in the first place, much less causing traffic problems for us today!
Planning rules start with the Planning Act, a piece of provincial legislation, and the Provincial Planning Statement (PPS) that interprets the Act and gives guidelines to how it should be applied according to current needs and priorities in Ontario. Then there are Official Plans at both the County and lower-tier municipal levels: these lay out the geography and demographics of the area, and the needs and values that guide planning decisions. Brighton’s Official Plan must be aligned with the Northumberland County Official Plan, should reflect the PPS, and must adhere to the Planning Act. Brighton will be updating our Official Plan in the coming year, watch for it!
Within our Official Plan is our Zoning By-Law, which is a list of rules of what can be built within which zone, including which zones go where. Planners determine the best places for residential, commercial, or industrial growth, and mark those areas on the map. They determine the limits of development: most of the Zoning By-Law is a list of allowable dimensions of buildings, required setbacks from property lines, etc., in order to keep a neighbourhood orderly. Prior to zoning regulations, neighbourhoods often developed out of shantytowns, becoming more ordered over time; now we lay out all of the order in advance instead. (This can be problematic too – another post for another day!) And of course, all building must adhere to the Ontario Building Code.
I once had some neighbours object to the height of a home that was built next door to theirs. They were incensed that it was built “to within an inch of the maximum height!” I’m not sure what to do with that; it wasn’t built over the maximum height, and if these neighbours wanted to renovate their home it could be made just as high. The fact that they knew that there was a maximum height, and that they knew this home was within that maximum height, didn’t reduce their frustration; but they also didn’t ask how that maximum height came to be, or to have it changed, and presumably they’d like to retain the right to build within the maximum height range themselves someday. Zoning by-laws are fair because they apply to everyone; but they’re also flexible, in that anyone can ask for a special zone with different requirements.
Where this is particularly challenging is when standards change. Not long ago, the highest allowable building in Brighton was three stories. We’re looking at a proposal on Monday for a hotel that will be six stories. For people who weren’t allowed to build a five-storey development in the past (if there were any), this must seem unfair. For people who live in an area that has all one- or two-storey buildings, having six stories within sight must feel like a massive change. That’s really hard.
As our community grows, we have to decide if we want to grow outward or upward. Either we “densify” (more people per sq km) in our existing area, or we eat up more and more farmland and woodlands outside the built boundary. Provincial regulations say we need to densify at least a certain amount before we can expand our urban boundary, but I would argue that doing so also aligns with our local values and geography: we’re a historic farming community known for our natural spaces, wetlands, shoreline, and parks. Preserving these for future generations by building higher than two or three storeys is a smart move, and the first six-storey building has to go somewhere. Planners help make sure that it goes in a place that is appropriate for it, and in accordance with the law.
The Interests of the Community
This is where Council comes in. We don’t see a planning proposal until it’s already been through a long and thorough process, checking to make sure that it meets all of the above laws and won’t have significant environmental impacts, etc. We can talk about whether those rules should be strengthened or streamlined (or both), but they are what they are, and by the time a proposal comes to Council it has already passed the legality test. So the landowner’s proposal for how they want to use their land has been deemed legal and possible. So what do we need Council for?
Council also has to consider the overall interests of the community. Will this proposal have negative externalities, changing the nature or feel of the community? Think of an example such as if a major industrial development were proposed just outside of a major and well-established tourism area: sure the new development is legal, and would create some jobs, but it could also undermine an established industry in the community. Should it be allowed? Does Council have a plan to invest in expanding the town’s industrial capacity, or to build a new road that would circumvent this industrial area to help tourists get to the tourist area? Is the need for this proposed development so great that the gain is greater than the pain of change?
I have discovered the hard way that Council is very limited in what we can consider as reasons for denying a development proposal. I voted against a development in the past on the basis of trying to protect the nearby marsh from light pollution and other impacts that are not regulated under the Planning Act. I was told, when the developer appealed to the Ontario Land Tribunal, that because such things aren’t regulated under the Planning Act that they were not admissible in our case — but the only reason I voted against the development proposal was precisely because those things aren’t regulated adequately! Such gaps in the system are very problematic, but we’re not able to change them at the municipal level. For the most part, if our Planning staff have presented us with a complete application, there’s no real reason for us to say no to it. If we do, the land owner is allowed to appeal (as any land owner may) to the Ontario Land Tribunal, and if the municipality loses that appeal we lose all input into the development moving forward. So we need to be careful about how we apply the “interests of the community” if doing so limits a land owner’s property rights.
Common (Losing) Arguments
The most common arguments I hear against development are as follows:
- “I’m not against a development like this, but it doesn’t belong in this neighbourhood.” This is the essence of the term NIMBY, which is an acronym for Not In My Back Yard – the idea that someone believes that such a thing should exist, but only in someone else’s neighbourhood. There might be a good reason why a particular neighbourhood is a bad fit for a development, but that needs to be carefully considered and justified – so if you have knowledge of the neighbourhood that our Planning staff lack, please bring it up! But unless it’s rooted in fact, this phrase is very commonly used to oppose development on vibes alone, and that can’t be the basis for development rules.
- “It doesn’t fit with the existing character of the neighbourhood.” This statement is problematic because it exists in a lot of Official Plans. The goal was to have a general similarity in a neighbourhood, so that it feels orderly. The trouble is that “character of the neighbourhood” is almost entirely subjective, and so this label gets applied to cover everything from rejecting increased density (e.g., going from single-family detached homes to rows of townhouses or apartments) to thinly veiled classist or racist attitudes. (There’s a long history of planning and real estate rules being used to keep neighbourhoods white!)
- “I’ve lived here a long time.” I mentioned this above, and I am very sympathetic to the challenge of seeing major changes in your environment. But length of tenure on your property doesn’t outweigh the property rights of your neighbours, and people also refer to their length of tenure when arguing in favour of their own property rights. When it comes down to it, the same rights apply to any landowner regardless of whether they’ve owned the property for a century or a minute.
- “They’re just trying to make a profit.” Often, people refer to the intentions of the landowner proposing development, as if that should remove their rights. It does not. Planners and members of Council will certainly consider the intentions of the developer as part of the planning proposal: how will this intended use affect the community, economy, traffic flows, natural environment? But whether or not someone makes money from their development is not something we regulate, and any property owner has the right to develop their property in a way that might be profitable provided it’s otherwise legal.
All of these arguments have emotional power, but don’t hold up to legal measures. If you find yourself opposed to a development proposal, think through your arguments and do your best to go deeper than these common approaches. It might be that there IS a legitimate reason to oppose the development, and we need to hear about that; but we hear these arguments every single time, and including them will undermine your case.
If you’re struggling with change in your neighbourhood, let me know. I’ve said “change is hard” several times in this post, and that’s not a dismissal of your opposition to it; I’m serious and genuine, and I’m happy to talk it through with you and sit with that discomfort. Change comes to us all, eventually, and we need to be able to sit with each other through it if we want to maintain the integrity of our community and our bonds with each other. Development should be something we can celebrate together, as our community thrives, rather than something that tears us apart.