Ed Morgan*
THE SWORD IN THE ZONE: FANTASIES OF
LAND-USE PLANNING LAW †
The theme of this article is that the contradictory impulses found in modern landuse planning law are impossible to overcome. The analysis takes place at two levels;
that is, on the level of law and on the level of land-use planning. In the first place,
the case law on the decision-making authority of municipal bodies and their provincial review boards will be examined in an effort to clarify, if possible, the question of
whether land development raises issues that are, at heart, law or policy and, consequently, whether they are entitled to intervention or deference by reviewing courts.
That case law, which forms a shell for land-use planning approaches, is then filled
in with an examination of divergent approaches toward fashioning the liveable city.
The regulatory flux between density and sprawl and the tension between more recent
new-urbanist designs and the traditional suburban development plan are explored,
demonstrating that neo-urban hub developments are premised on a false vision of
collective social experiences, while suburban garden developments are premised on
the hollow dream of an idyllic society. Each of these competing approaches simultaneously answers the weaknesses of the other and contains weaknesses of its own that
are answerable by the other. Given this incoherence, this article, therefore, endorses
a substantial deregulation of the field. Paradoxically, this advocacy of privatization
does not proceed, first and foremost, out of respect for the value of the market as efficient regulator; rather, it proceeds out respect for the values inherent in public regulation and administrative law – values which government land-use planning has
found impossible to achieve.
Keywords: municipal law, administrative law, judicial review, law and planning, new urbanism, aesthetic regulation, bonusing
I
Throwing zones at class houses
The word is out in the scientific community that a ‘new deal’ in planning
is not in the cards. ‘Natural selection,’ the theory goes, ‘has passively
guided the evolution of mammalian brains throughout time, just as politicians and entrepreneurs have indirectly shaped the organization of
* Professor of Law, University of Toronto
†
Many thanks to the participants in the Planning, Law, and Property Rights Conference
held at the University of Alberta in May 2011 and to the participants in the University
of Toronto Faculty of Law Summer Camp series held in July 2011 for their helpful
comments and discussion. Additional thanks to Eric Turkienicz for his comments and
for several puns. Errors and the worst of the puns are the author’s alone.
(2012), 62 UNIVERSITY OF TORONTO LAW JOURNAL
DOI: 10.3138/utlj.62.2.163
164 UNIVERSITY OF TORONTO LAW JOURNAL
cities large and small.’1 Our urban and suburban areas, with their societal
nerve centres and ‘highway systems . . . driven by similar principles as the
neocortex,’2 are like our brains. It is the theory of this article that the designers of these metropolitan organs and their governing laws – having
created a state of regulatory flux between density and sprawl, and between
community interests and property rights – are either hapless dreamers or
illiberal geneticists out to tinker with our metropolitan grey matter.3
The normative question addressed in this article is one that has vexed
the Canadian system for as long as local government powers have been
the subject of legal contemplation: how does community-planning
authority stack up against owners’ rights?4 The question has become particularly acute now that sustainability, environmentalism, and issues of
urban/suburban aesthetics are among the declared purposes of regulation in this field.5 What’s more, these factors are not confined to overall
policy making but spill over to the task of determining individual development applications.6 Accordingly, the subject on which this study
1 Mark A Changizi & Marc Destefano, ‘Common Scaling Laws for City Highway Systems
and the Mammalian Neocortex’ (2009) 15 Complexity 11.
2 Ibid at 11.
3 Graeme McMillan, ‘Our Cities Are Our Brains’ (19 September 2009), online: io9
<http://io9.com/5362762/our-cities-are-like-our-brains>: ‘[O]ur entire world is just
one giant living brain, and we are but living Numskulls.’
4 For the Supreme Court of Canada’s classic statement of community authority over
owners’ rights, see Township of Markham v Langstaff Land Development Ltd, [1957] SCR
336, stating that the municipality has discretion to substitute its own criteria for those
in statute. For the Supreme Court of Canada’s classic statement of property rights
over community interests, see Etobicocke Board of Education v Highbury Developments Ltd,
[1958] SCR 196 at 200: planning decisions ‘must be exercised judicially.’ On the early
fusion of administrative law principles with the legal restrictions placed on municipal
decision making, see Stanley Makuch, ‘Bora Laskin and Municipal and Planning Law’
(1985) 35 UTLJ 469. On the tension between planning and property rights, see City of
Nanaimo v Rascal Trucking Ltd, [2000] 1 SCR 342 at para 18: ‘There is ample authority,
on the interpretation of statutes generally and of municipal statutes specifically, to
support a broad and purposive approach.’ On the other hand, see R v Greenbaum,
[1993] 1 SCR 674 at 688: ‘Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred
upon them by a provincial statute.’ On the laudable goals of land-use regulation in
general, see Eran S Kaplinsky, From Farms to Suburbs: Controlling Land Subdivision (SJD
Thesis, University of Toronto, 2006) [unpublished], esp. at 22–4 [Kaplinsky].
5 See Joe Berridge, ‘Beauty, Truth, and Order, or Something Like That’ (2000) 40 Plan
Canada 14 at 14, describing Daniel Burnham’s turn-of-the-twentieth-century prescription for city building: ‘Let your watchword be order and your beacon beauty.’
6 Sandeep Kumar, ‘Urban Design Decision-Making: A Study of Ontario Municipal
Board Decisions in Toronto’ (2005) 14 Canadian Journal of Urban Research 3; the
landmark case of Township of Scarborough v Bondi, [1959] SCR 444 [Bondi], permitting
‘spot zoning’ for individual properties, is the seminal moment for the law’s authorization of this narrowing of the planning-policy gaze.
FANTASIES OF LAND-USE PLANNING LAW
165
specifically focuses is not so much municipal by-laws of general application but the pervasive practice of ad hocery in subdivision approval, spot
zoning, rezoning, and other exercises of planning law authority.7
The other subject matter explored in this study is the regulation of
urban form as an aspect of property uses. Although addressing issues of
form may not be a requirement for the theoretical justification of planning law,8 the contemporary tendency toward fusion of architectural
form and city planning9 has engaged the development-approval process
in subjective notions of ‘good living’ and ‘good design.’10 In this climate,
municipalities and their lawyers may be advocating deference to an ideology of local government11 and an accompanying urban aesthetics12
more than to the technical prowess of professional planners.13 When all
of this is combined with a zoning system dotted with property-specific
7 For a survey and critique of American jurisprudence on piecemeal authority over
property, see Carol M Rose, ‘Mahon Reconstructed: Why the Takings Issue Is Still a
Muddle’ (1984) 57 S Cal L Rev 561 at 561–2.
8 On the cultural impetus for suburban development, see Robert Fishman, Bourgeois
Utopias: The Rise and Fall of Suburbia (New York: Basic Books, 1987) at 3–17; Kenneth T
Jackson, Crabgrass Frontier: The Suburbanization of the United States (Oxford: Oxford University Press, 1985) at 11: ‘[S]uburbanization has been as much a governmental as a
natural process.’
9 See Beverly A Sandalack & Andrei Nicolai, ‘Whatever Happened to the Public
Realm?’ (2002) 42 Plan Canada 24, describing the fluctuating separation and fusion
of planning and design. On the theoretical justifications for legal regulation of form
and aesthetics in property matters, see John J Costonis, Icons and Aliens: Law, Aesthetics,
and Environmental Change (Urbana, IL: University of Illinois Press, 1989) at xvi, 1; see
also James Charles Smith, ‘Law, Beauty, and Human Stability: A Rose Is a Rose Is a
Rose’ (1990) 78 Cal L Rev 787.
10 Hok-Lin Leung ‘A New Kind of Sprawl’ (1995) 35 Plan Canada 4–5, equating ‘good
living’ with ‘suburban ideals of democracy and community’; see also Lawrence C Gerkens, ‘D is for Design,’ Planning Commissioners Journal (2010), online: <http://pcj.
typepad.com/planning_commissioners_jo/2010/02/design.html>. On ‘good living,’
see Carter Wiseman, ‘A Classy Comeback for Apartment Houses,’ New York Magazine
(10 May 1982) 67 at 67: ‘[F]ine tuning of the zoning laws and what appears to be a
sharper awareness about architecture among some developers are combining to bring
good design back to apartment form.’
11 Mark Pennington, Planning and the Political Market: Public Choice and the Politics of Government Failure (London: Athlone Press, 2000) at 11 [Pennington, Planning]: ‘[P]olitical actors are not “economic eunuchs” concerned to maximize “social welfare,” but
instead are rational actors pursuing individual self-interest.’
12 In this field, ideology and aesthetics can themselves become inseparable. See Jill
Grant, ‘Aiming for Well-Designed and Beautiful Cities’ in Jill Grant, ed, A Reader in
Canadian Planning: Linking Theory and Practice (Toronto: Thomson Canada, 2008) at
185 [Grant, ‘Aiming’]: ‘While Canadians may agree that planning to achieve efficiency, health, and safety is a well-established function of government, do they share
the same level of consensus on urban aesthetic values?’
13 See e.g. Keith Nicol, ‘Building Orientation and Heating Requirements in Canada’
(1987) 27 Plan Canada 154 at 161: ‘Specific policies that might reduce building energy
166 UNIVERSITY OF TORONTO LAW JOURNAL
exceptions and statutorily authorized deal making between cities and
owners,14 the entire land-use planning process seems to cry out for a
study of its own legitimacy.
The ambitions of this article are threefold. In the first place, it reviews
the judicial decisions surrounding the question of property rights and
planning expertise, with a view to achieving some understanding of the
debate over the proper degree of deference afforded to planning decisions. It may be rhetorically insightful for non-lawyers to ask ‘does
anyone know what “urban” means anymore?’15 but the ambivalence implied therein provides no answer to land-development questions that
statutory processes demand be answered. At some level, planning
approval is properly either a question of adjudicated property rights in
the economic interest of owners16 or collective policies in the equitable
interests of community members.17 It takes a legal theory to determine
whether curial deference to planners and local officials is, indeed, part
of the policy cure or, rather, is a prolongation of the legal disease.18
The second ambition is to trace the evolution and legal dynamics of
today’s planning approaches. In doing so, the study inevitably divides
into two sub-parts. The first traces the rise and demise of the garden city
that dominated twentieth-century law and policy,19 while the second
traces the emergence of the theory of new urbanism and its ultimate
14
15
16
17
18
19
consumption include promoting the solar orientation of streets and buildings . . . and
protecting solar access.’
Planning Act, RSO 1990, c P.13, s 37 [Planning Act]: ‘The council of a local municipality may . . . authorize increases in the height and density of development . . . that will
be permitted in return for the provision of such facilities, services or matters as are set
out in the by-law’; Bondi, supra note 6, authorizing spot zoning.
Ian Wright, ‘In Search of Grander Humane Visions’ (1996) 36 Plan Canada 3.
See Paul E Peterson, City Limits (Chicago: University of Chicago Press, 1981) at 149,
advocating the ‘consensual politics of development.’
Stephen L Elkin, City and Regime in the American Republic (Chicago: University of Chicago Press, 1987) at 100, condemning ‘growth strategies [that] themselves contribute
to inequality.’
On the current judicial approach to curial deference more generally, see Dunsmuir v
New Brunswick, [2008] 1 SCR 190, dividing questions of appellate review into tests of
‘correctness’ and ‘reasonableness.’ For a discussion of judicial interpretation of
municipal powers outside of the land-use planning field, see Ron Levi and Mariana
Valverde, ‘Freedom of the City: Canadian Cities and the Quest for Governmental Status’ (2006) 44 Osgoode Hall LJ 409, describing recent deferential judgments as part
of the legal system’s ‘new deal for cities.’
On the garden city as the planning discipline’s manifestation of modernism, see Stanley Buder, Visionaries and Planners: The Garden City Movement and the Modern Community
(Oxford: Oxford University Press, 1990) at 210, characterizing the garden city movement as a product of late-nineteenth- and early-twentieth-century optimism: ‘It looked
toward the design of communities that would further a genuinely ethical and civic life
while providing the individual a sense of connection and order.’
FANTASIES OF LAND-USE PLANNING LAW
167
submerging in a seaside of ironic reversals.20 If, as the Supreme Court of
Canada has observed, ‘[m]unicipal governments are democratic institutions through which the people of a community embark upon and structure a life together,’21 it seems important for a potentially deferential
court to know what type of structure they have actually put together. It
takes, in other words, a planning theory to determine whether local
authorities will adequately shape or bend out of shape the development
of property within their domain.
The third ambition of this article is to examine the extent to which
current approaches to development decisions reflect acceptable constitutional practice. Since urban planners have not managed to fill the hollow
shell of administrative law with a coherent spatial expression,22 local
authorities have turned to incentive zoning or bonusing23 as a way of addressing both the failures of the market and the shortcomings of central
planning.24 Given a statutory framework that facilitates this public/private mix of power,25 it seems important to know how the exercise of such
authority coincides with more general requirements of equality
and consistency in the law.26 It takes a constitutional theory,27 in other
words, to determine whether the collective interest can properly add bargaining power to its list of bureaucratic levers on owners’ property rights.
There is a sense in the planning literature that ‘something must be
done’ for the future physical and cultural landscape and that we have
been recklessly throwing zones at our fragile urban/suburban environment in order to produce ‘high class residential communit[ies].’28
20 The new-urbanist movement, generally thought of as a progressive, forward-looking
school, emphasizing environmental sustainability, has also been described as embracing the ‘aesthetics of nostalgia and collective memories that embody the “inviting
urbanism” of Seaside [Florida]’; Jon Rowland, Book Review of The Seaside Debates: A
Critique 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 [Pacific
National Investments].
22 See Michael Dear & Glenda Laws, ‘The Social Theory of Planning’ (1986) 26 Plan
Canada 246.
23 Mark Pennington, Liberating the Land (London: Institute of Economic Affairs, 2002) at
114, describing ‘market based policy instruments.’
24 Pennington, Planning, supra note 11 at 12, describing both market failure and government failure as ‘institutional failure.’
25 Planning Act, supra note 14, s 37.
26 On consistence and equality as components of the rule of law, see Robert Justin Lipkin, Constitutional Revolutions (Durham, NC: Duke University Press, 2000) at 221.
27 See Reference re Secession of Quebec, [1998] 2 SCR 217 at para 32, identifying the ‘rule of
law’ as one of the unwritten theoretical underpinnings of the Canadian constitution.
28 Town History, online: Town of Hampstead <http://www.hampstead.qc.ca>: ‘The Garden City is a conceptual framework that aims at establishing an idyllic suburb . . .
[and] a high class residential community.’ For the same theme articulated in reaction
168 UNIVERSITY OF TORONTO LAW JOURNAL
Despite this urgency, the neural pathways that are our planned communities remain calcified by the contradiction between community design
and property rights, and between density and sprawl.29 As one Canadian
judge has put it, ‘[d]epending on the way the light falls, sometimes one
thinks one can see the [policy] objects. Other times one cannot and,
indeed, wonders whether there are really . . . objects there at all.’30 The
overall aspiration of this article is to spotlight the refracted prism that is
land-use planning law. The question is not whether this or that reform is
possible; the question is whether the entire system works in accordance
with 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 graduated spectrum of tests for judicial review, strung along a continuum of
administrative bodies.32 The Supreme Court has admonished that the
evaluation of an administrator’s jurisdiction must follow a ‘functional
and pragmatic’ logic,33 such that a statute perceived as ‘engag[ing] policy issues, or involv[ing] the balancing of multiple sets of interests or
considerations will demand greater deference from a reviewing court.’34
As others have noted, identifying gradations of administrative bodies
and their relative (and perceived) expertise ‘introduces an interesting,
if sometimes infuriating, complexity into the system.’35 Zoning has
29
30
31
32
33
34
35
to garden cities, see Peter Katz, ‘Introduction’ in Peter Katz, ed, The New Urbanism:
Toward an Architecture of Community (New York: McGraw-Hill, 1994) at xiii, describing
‘a growing sense that the suburban paradigm, which has dominated since the 1940s
and 1950s, cannot sustain another generation of growth.’
James Howard Kunstler, Book Review of Architecture: Choice or Fate’ by Leon Krier,
American Enterprise (1998), online: <http://www.kunstler.com/mags_choice_fate.
html>, opining that we are ‘captive victims to failed ideologies.’ See also Rolf Pendall,
‘Do Land-Use Controls Cause Sprawl?’ (1999) 26 Environment and Planning B: Planning and Design 555 at 569: ‘[T]he analysis shows that land use controls do influence
the density of new development.’
Miller v Workers’ Compensation Commission (Nfld) (1997), 154 Nfld & PEIR 52 (NL SC
(TD), cited in City of Toronto v CUPE, Local 79, [2003] 3 SCR 77 at para 63, Lebel J dissenting.
James Trefil, A Scientist in the City (New York: Anchor Books, 1994), describing cities as
operating in accordance with laws of nature.
Director of Research and Investigations v Southam Inc, [1997] 1 SCR 748, setting out sliding scale of standards of review.
UES Local 298 v Bibeault, [1988] 2 SCR 1048.
Dr Q v College of Physicians and Surgeons of British Columbia, [2003] 1 SCR 226.
Hon Harvey A Groberman, Supremacy and Curial Deference: The Supreme Court of Canada’s Approach to Statutory Interpretation by Administrative Tribunals, online: <http://www.
FANTASIES OF LAND-USE PLANNING LAW
169
rolled back and forth on this scale, at times viewed as an untouchable
discretion of expert planners and local communities, while at other
times perceived as a strictly legal decision of reviewable public officials.
On one hand, it is clear that the need for technical evaluation and
community input are among ‘a variety of reasons why municipalities
should have control over the planning of local subdivisions.’36 Pitted
against that, however, is the fact that ‘[t]he right to subdivide real property, to sell a part rather than the whole, is an ordinary incident of ownership.’37 Planning expertise, local political control, and proprietary
interests have made the question of curial deference and review a curious
mix. In determining property rights, the judiciary is within one of its most
traditional comfort zones; in determining the multi-faceted interests of
the surrounding community, the judiciary engages matters entirely
remote from its institutional competence. Justice Lebel has commented
that ‘[l]aw may look like a dry, forbidding, and not very fashionable subject. Sometimes, however, it involves broad issues of policy and the principles of municipal governance.’38 In fact, virtually every decision in this
area entails a combination of legal rights and public policies.
When it comes to local government, the basic test that the courts have
formulated – subject always to fact-specific embellishment – is that judicial
review is ‘not a vehicle for consideration of the merits of a municipality’s
decision to pass the bylaw, [but rather of] whether it conforms to proper
municipal planning principles.’39 The test, of course, is remarkable for
how unhelpful it has proved to be. Thus, the power to quash a municipal
by-law or other decision is always discretionary, which renders municipal
decisions subject to prima facie deference.40 At the same time, municipalities do not possess any greater institutional expertise on questions of statutory interpretation than do courts, which renders decisions by city
councils and their officials subject to a prima facia test of correctness.41 It
is clear enough that ‘[m]unicipalities are creatures of statute and can
36
37
38
39
40
41
statutelawsociety.org/__data/assets/pdf_file/0005/93587/Justice_Harvey_Groberman.
pdf>.
City of Vancouver v Simpson, [1977] 1 SCR 71.
Oakwood Developments Ltd v St François Xavier, [1985] 2 SCR 164 at para 8 [Oakwood Developments], citing Re Municipal Act (1959), 28 WWR 428 (BC Sup Ct). See also Re Forfar and Township of East Gwillimbury, [1971] 3 OR 337 at para 15 (Ont CA): ‘[w]hile it
is no doubt true that in a sense the statute encroaches upon an owner’s use and enjoyment of private property . . .’
Pacific National Investments, supra note 21 at para 1.
Country Pork Ltd v Township of Ashfield (2002), 60 OR (3d) 529 at 542 (Ont CA), considering the use of interim control bylaws under Ontario’s Planning Act.
Immeubles Port Louis Ltée v Lafontaine (Village), [1991] 1 SCR 326.
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.
170 UNIVERSITY OF TORONTO LAW JOURNAL
only act within the powers conferred on them by the provincial legislature,’42 but it is anyone’s guess whether it is the city or the reviewing court
that determines the contours of the power thereby conferred.
By way of illustration, courts have determined that a city government
can single out one landowner for special treatment within the overall
zoning scheme if legislatively mandated to do so43 but have no inherent
powers to discriminate between properties even if the differentiation is a
rational or reasonable one.44 Likewise, cities cannot act for the specific
purpose of depressing a property’s value if not otherwise done for a bona
fide planning purpose;45 on the other hand, a municipal action will not
be quashed merely because it will have the effect of reducing property
values even if the properties are eventually to be expropriated by the
public authority.46 Generally, down-zoning that imposes otherwise public
costs on an individual landowner is valid,47 although down-zoning specifically in anticipation of expropriation is beyond a local authority’s
powers.48 Shifting burdens from community members to an individual
owner is seen to be the essence of a valid planning policy,49 while imposing burdens on an individual owner in preference to others is seen to be
the essence of an illegal rights violation.50 The courts have made it clear
that law is mandatory while policy is discretionary, but they seem to have
difficulty distinguishing one from the other.
A series of Ontario cases dealing with the status of official plans further demonstrates the confusion. The Ontario Municipal Board (OMB)
operates under a statutory mandate to ensure that its decisions ‘have
regard’ to matters of provincial interest,51 and to render decisions that
are ‘consistent with’ any of the province’s official plans from time to
42 Shell Canada Products Ltd v City of Vancouver, [1994] 1 SCR 231 at 273. See also R v
Sharma, [1993] 1 SCR 650 at 668, citing Stanley M. Makuch, Canadian Municipal and
Planning Law (Toronto: Carswell, 1983) at 115: municipalities possess only ‘those
indispensable powers essential and not merely convenient to the effectuation of the
purposes of the corporation.’
43 See Ian M Rogers, The Law of Canadian Municipal Corporations, 2d ed (Toronto: Carswell, 1971) at 406.4: ‘The general [anti-discrimination] principle does not apply
where the enabling statute clearly specifies that certain persons or things may be excepted from its operation or expressly authorizes some form of discrimination.’
44 R v Varga (1979), 51 CCC (2d) 558 (Ont CA) and Montréal (City of) v Arcade Amusements 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 71.
47 Ibid at 557.
48 British Columbia v Tener, [1985] 1 SCR 533.
49 Stanley Makuch, Neil Craik, & Signe B Leisk, Canadian Municipal and Planning Law,
2d ed (Toronto: Carswell, 2004) at 211.
50 Kramer v Wascana Centre Authority, [1967] SCR 237.
51 Planning Act, supra note 14, s 2.
FANTASIES OF LAND-USE PLANNING LAW
171
time in effect.52 Perhaps not surprisingly, the courts have on frequent occasions perceived these terms to be crucial to the interpretation of the
Planning Act.53 What is more interesting is that the statutory phrases
have been lumped together with terminology such as ‘comprehensive
hydrogeological study’ and ‘growth management study’ found in the
regional plan,54 opening all for judicial interpretation on a correctness
standard.55 On the other hand, the Ontario courts have been at pains to
refrain from interfering with decisions of the OMB unless ‘the advantage
of doing so far outweighs the advantages of judicial restraint.’56 It has
therefore been determined to be of critical importance that the board
issue fully explanatory, rational analyses for its decisions in the public
interest57 and, at the same time, that the board ‘only needs to give the
general substance of the reasoning behind its decision.’58
In City of Toronto v Romlek Enterprises,59 the OMB accommodated a
development proposal by granting a minor variance from commercial to
mixed use, in the process increasing the density over that stipulated in
the existing zoning by-law. The approval was contrary to the Official
Plan,60 as the unit density contained in the secondary plan was exceeded
by fivefold.61 Since the Planning Act authorized certain such approvals
to proceed before a Committee of Adjustments as a form of ‘minor variance,’62 the question on appeal turned on the interpretation of the word
‘minor.’63 Previous courts had tended to find this question at most a
mixed one of law and fact, it being a quintessentially ‘relative expression
52 Ibid, s 3.5.
53 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 (Ont
Div 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 (Ont
Div 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 Decision/Order No 1928 (2006) (OMB).
61 Romlek, supra note 59 at para 14: ‘The Highland Creek Secondary Plan contains a density limit of 37 resident units per hectare. The Proposal is the equivalent of 268 units
per hectare.’
62 Planning Act, supra note 14, s 45(1).
63 Ontario Municipal Board Act, RSO 1990, c O.28, s 96(1): (criteria for leave to appeal).
172 UNIVERSITY OF TORONTO LAW JOURNAL
[that] must be interpreted with regard to the particular circumstance involved.’64 This time, however, the Divisional Court opined that ‘[t]he
proper interpretation and application of an Official Plan and the conformity of a proposed development with an Official Plan is a question of
law.’65
By contrast, in 583753 Ontario Limited v Regional Municipality of York,66
the OMB refused to accommodate a development proposal by denying
the inclusion of lands lying within the ‘protected countryside’ areas of
Ontario’s Greenbelt Plan67 as the active parklands or amenity space required of developers for subdivision approval.68 The board was of the
view that, by virtue of its inclusion in a subdivision proposal, such vacant
parkland would become an ancillary part of a settlement area, contrary
to the terms of the Plan.69 Although the crucial term ‘settlement areas’
is a defined term in the statutorily authorized Greenbelt Plan,70 the Divisional Court held that this was far from the type of clearly delineated71
and substantial72 statutory definition that has traditionally been considered a question of law. Rather, the court perceived the OMB as having
adequately fulfilled its duty to assess the policy objectives of the Plan as
a whole rather than in its discrete statutorily defined parts.73 Although
it conceded that ‘the correctness of the three above decisions is open
to serious debate,’74 it refused to intervene based on its perception that
‘the decisions are policy decisions, not decisions on questions of law.’75
Since the complex combination of environmental and planning expertise required to properly assess the Greenbelt Plan was found to
be 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
Plan.
68 See 583753 Ontario Limited v Regional Municipality of York (2006), No 3289 (OMB)
[583753 Ontario Limited].
69 The preclusion of ‘settlement areas’ from expanding into ‘protected countryside’ is
found in section 3.4.213 of the Greenbelt Plan, OIC 208/2005 (2005), O Gaz, 899
(effective 16 December 2004).
70 Ibid.
71 See Basso v Township of King (2005), 50 OMBR 129 (OMB) [Basso], stating that the definition of ‘bed and breakfast establishment’ is a question of law.
72 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) 548/06, released July 18/07 at para 13 (Ont Div Ct) [Kraft], stating that
the entire order of an OMB decision must be capable of review, not just discrete parts.
74 583753 Ontario Limited, supra note 68 at para 14.
75 Ibid at para 11.
FANTASIES OF LAND-USE PLANNING LAW
173
court concluded that it ‘could not see appellate review of these decisions being of much, or any assistance in future developments in the
greenbelt.’76
Accordingly, official plans authorized by provincial statute are alternatively law and policy;77 likewise, decisions interpreting them are alternatively subject to a correctness and a reasonableness standard of review.78
Their terms are a matter of precise definition;79 likewise, their stated criteria must be examined as part of a larger picture rather than as specifically defined terms.80 The OMB is required to give reasons so that the
public in whose interest it acts understands its rationale;81 likewise, the
board is required to give only the most cursory of justifications for its
decisions.82 The courts have declared that ‘[t]hose engaged in the planning process are entitled to know the appropriate weight and consideration to be given to provincial policies as well as to official plan policies
in decisions concerning land use planning’;83 nevertheless, no such
knowledge has been conveyed and none seems to exist.
When it comes to the question of deference or judicial review, the
Supreme Court has consistently recognized that the legislature has conferred certain discretionary powers of decision on administrators and
not on the courts.84 On the other hand, it has occasionally had to
remind itself of the rule-of-law postulate requiring all such decisions to
‘be based upon a weighing of considerations pertinent to the object of
the administration’85 and that, whether the matter is properly characterized as one of formal law or of policy, ‘the policy and objects [are those]
of the governing Act.’86 Since it is forbidden for land-use decision
makers to act on a predisposition not expressed in their governing
76 Ibid at para 15.
77 For a brief discussion of this conflict, see Barnet Kussner & Jeff Cowan, ‘Conflicting
Court Decisions on OMB Appeals’ Nova Res Urbis: GTA Edition (21 November 2007),
online: Weirfoulds <http://www.weirfoulds.com/files/1560_GovernmentUpdate_
Winter08.pdf#pagemode=none>.
78 For both standards applied at once, see Ontario Liquor Control Board v Lifford Wine
Agencies, [2005] OJ No 3042 (QL) (Ont CA).
79 Basso, supra note 71.
80 Kraft, supra note 73.
81 Cloverdale, supra note 57.
82 Zellers, supra note 58.
83 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), online:
<http://www.municipallawchambers.com/dpt/petch/Uploaded_Files/CurialDeference
andtheOntarioMunicipalBoard.pdf>.
84 Smith & Rhuland Ltd v The Queen ex rel Brice Andrews, [1953] 2 SCR 95 at 107.
85 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].
174 UNIVERSITY OF TORONTO LAW JOURNAL
legislation,87 the key to solving the law/policy, intervention/deference,
full reasons/cursory explanation, correctness/reasonableness quagmire
is to unearth the theory of land development embedded in their mandate. The courts on their own provide little more than a framework for
overlapping wrinkles and contradictory folds; the real test is to be ironed
out by comprehending the planning theory that currently governs our
urban and suburban growth.
III
Planning theory: Romancing the zone
For a discipline born of creative minds,88 urban planning is remarkable
for its reactive rather than its proactive nature. The early twentieth century saw the garden city grow out of revulsion for the Victorian era’s
tumultuous industrial city,89 while the late twentieth century saw the
new-urbanist movement grow out of a revulsion for the uniform monotony of the modernist suburb.90 Accordingly, while planners and urban
reformers have been anxious to participate in contemporary society’s
‘unexampled rate of progress and invention,’91 their inventions have frequently contained the seeds of their own contradictions. Indeed, the
competing theories that co-exist in the land-use planning community
seem premised more on competing fantasies of the ‘good community’
than anything else.92 This portion of the article examines two of the
prominent planning theories to emerge in the past century.
In one sense, of course, the two prevailing views of good planning discussed here – the garden-city vision of future utopias and the new-urbanist
vision of past perfection – have a common denominator: they reject the
second law of thermodynamics and recoil from random motion.93 In
87 See Oakwood Developments, supra note 37 at para 17, where the municipality ‘refused to
entertain any pertinent information of this nature “due to its belief that the land
should not be subdivided under any circumstances.”’
88 Jill Grant, Planning the Good Community (London: Routledge, 2006) at 36 [Grant, Planning], describing early-twentieth-century innovations in planning as having been
‘born of the creative mind of a deeply spiritual visionary.’
89 Robert Fishman, Urban Utopias in the Twentieth Century (New York: Basic Books, 1977)
at 30 [Fishman].
90 Leon Krier, ‘Drawings’ (1984) 54 Architectural Design 16 [Krier, ‘Drawings’].
91 Fishman, supra note 89 at 29, citing Ebenezer Howard as father of the garden city.
92 Grant, Planning, supra note 88 at 224: ‘[b]ut the very notion that we might define the
good community in precise or unitary terms must be challenged.’
93 See Steven Greenhut, ‘New Urbanism: Same Old Social Engineering’ (2006) 56 Freeman: Ideas on Liberty 3 at 9: contemporary planners ‘use the language of deregulation and fairness, meanwhile denying that calls for heavy-handed central planning
have anything to do with their movement.’
FANTASIES OF LAND-USE PLANNING LAW
175
fact, it is trite to say that all planning policies embody a felt need for
order and for enhancing societal and personal potentials.94 Despite this
overarching drive to transform a chaotic landscape into controlled development, the dominant planning paradigms have both managed to produce similarly defective cities and environs: irreparable ‘dead zones’95
encircled by surreal enclaves. These surroundings, in turn, are themselves a direct product of planning policies whose failures have been as
colossal as their aspirations. The law of land-use planning has produced
two distinctive types, cities and suburbs; and despite the shared goals of
producing the good community, these have come to reflect either ‘cartoon architecture and parking lots,’96 or ‘elitist values and [inaccessible]
expert judgment.’97
Today’s superficial planning realities have emerged from a set of
deep-seated fantasies, romanticizing the power of the law as a vehicle for
escape from, and recreation of, the town-and-country mix. The Supreme
Court of Canada demonstrated the trend in Edwards Books,98 in which it
upheld Ontario’s Sunday closing laws in the face of a challenge by a
group of Toronto-based retailers.99 The Court reasoned that the statutory policy, unlike its older federal counterpart,100 only incidentally
affected religious freedom.101 In arriving at its conclusion that the
statute embodied a reasonable limit on the appellants’ constitutional
rights,102 the Court heavily romanticized the pseudo-rural environment
of Canada’s urban centres. In Chief Justice Dickson’s 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 America’s Man-Made Landscape (New York: Simon & Schuster, 1993) at 306 [Kunstler,
Geography].
96 Ibid (publisher’s blurb).
97 Jill Grant, ‘The Ironies of New Urbanism’ (2006) 15 Canadian Journal of Urban
Research 171.
98 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 Lord’s Day Act, RSC 1970, c L-13, was struck down as unconstitutional in
R v Big M Drug Mart Ltd, [1985] 1 SCR 295.
101 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 Ontario
enactment violated section 2(a) of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982,
c 11 [Charter]. The province’s response, endorsed by the Court, was that any such
infringement of freedom of religion was within reasonable limits and therefore justified under section 1 of the Charter.
176 UNIVERSITY OF TORONTO LAW JOURNAL
A family visit to an uncle or a grandmother, the attendance of a parent at a
child’s sports tournament, a picnic, a swim, or a hike in the park on a summer
day, or a family expedition to a zoo, circus or exhibition – these, and hundreds
of other leisure activities are amongst the simplest but most profound joys that
any of us can know.103
The Court’s pastoral imagery harkens back to the turn-of-the-century
work of town planner Ebenezer Howard and his seminal treatise, Garden
Cities of To-Morrow.104 Howard’s vision embraced a quasi-urban environment that, ‘as it grows, the free gifts of Nature – fresh air, sunlight,
breathing room and playing room – shall be still retained in all needed
abundance.’105 Indeed, Chief Justice Dickson’s infatuation nearly a century after its first appearance goes far to demonstrate that Howard’s
work, from its origin as a ‘modest little tract could actually have come to
be the most important book on the planning of cities that has appeared
in the last century.’106 Its champions and its critics alike concede that
Howard’s concept of separating residences from other uses has been
endlessly romanced by professionals in the field: ‘[c]ity planners and designers . . . are still thoroughly governed intellectually by its underlying
principles.’107
A KILLING TWO BURBS WITH ONE ZONE
The garden-city project was both pragmatic and utopian. It embraced
the eminently reasonable goal of moving from industrialized areas to
greener pastures; indeed, the planning theory that continues to predominate, and to resist change, in Toronto’s two largest suburbs,108 was once
described by no less a futurist than HG Wells as ushering in ‘a regenerate world, cleansed of suffering and sorrow.’109 As is evident from the
socio-romantic language in which this version of urban design was originally expressed, the theory was premised on a combination of ‘two
103 Edwards Books, supra note 98 at para 126.
104 Ebenezer Howard, Garden Cities of To-Morrow, ed by FJ Osborn (London: Faber and
Faber, 1946) [Howard].
105 Ibid at 113.
106 Lewis Mumford, ‘Reevaluations I: Howard’s Garden City,’ The New York Review of Books
(April 1965) at 10.
107 Jane Jacobs, The Death and Life of Great American Cities (New York: Random House,
1961) at 8 [Jacobs].
108 Phinjo Gombu, ‘Paradise Saved? GTA Growth Plans Aim to Rein in Sprawl,’ The
Toronto Star (14 January 2011) A1 [Gombu]: ‘Ontario Infrastructure Minister Bob
Chiarelli says he is aware the situation in Mississauga and Brampton “has to be
watched very carefully.”’
109 HG Wells, New Worlds for Old (London: Donohue, 1913) at 20.
FANTASIES OF LAND-USE PLANNING LAW
177
parallel tendencies in design. These are social reform and improvement
in aesthetic appearance.’110
The garden-city theory was, unlike anything that had come before it,
the harbinger of the new town-planning discipline and envisioned ‘an
entirely novel relationship between Western man and the organization
of his cities – resulting from the industrial revolution.’111 It was, therefore, a turn-of-the-century product of its times as much as it was an effort
to be a plan for all time. Howard’s thought reflected a broadly modernist
if paradoxical impulse to both break free from and restart history,112 escaping from those places where ‘civilization works its miracles and civilized man is turned back almost into a savage.’113
As a reaction against the urban intensification of the late nineteenth
century,114 Howard’s garden-city vision was one that saw urbanization
as a sinful115 and, indeed, an unnatural form of existence.116 Although
the original garden-city developments were designed as a conscious
deviation from the Dickensian quality of the nineteenth-century industrial city,117 Howard’s notion was that they were to be privately financed
and created as a product of private ordering – thus maintaining
their place within ‘the most beautiful and wonderful of natural laws.’118
In the words of one early English thinker on cities and their role
110 Norman Lucey, ‘The Effect of Sir Ebenezer Howard and the Garden City Movement
on Twentieth Century Town Planning’ (1973), online: <http://www.rickmansworth
herts.freeserve.co.uk/howard1.htm>. For a full exploration of the social and economic factors driving suburban development, see Dolores Hayden, Building Suburbia:
Green Fields and Urban Growth (London: Vintage Books, 2004); also Dolores Hayden,
The Power of Place: Urban Landscapes as Public History (Cambridge: MIT Press, 1995) at
43: ‘[S]ocial history is embedded in urban landscapes.’
111 Francois Choay, The Modern City: Planning and the Nineteenth Century (New York: Braziller, 1969) at 7.
112 Paul de Man, ‘Literary History and Literary Modernity’ in Paul de Man, ed, Blindness
and Insight (Oxon, UK: Methuen, 1983) 142.
113 Alexis de Tocqueville, Journeys to England and Ireland (London: Faber and Faber,
1958) at 108.
114 Adna Weber, The Growth of Cities in the Nineteenth Century (New York: Macmillan, 1899)
at 1: ‘The tendency towards concentration and agglomeration is all but universal in
the Western world.’
115 C.f. John Ruskin, ‘Unto This Last’ The Works of John Ruskin (London: George Allen,
1903) at 205: ‘the smoke of their [cities’] sins going up into heaven like the furnace of
Sodom.’
116 JA Hobson, The Evolution of Modern Capitalism (London: Walter Scott, 1906) at 354,
condemning ‘the huge hideous conglomerations of factory buildings, warehouses and
cheap workmen’s shelters, which make the industrial town.’
117 See Book Review of Dickens and the City by FS Schwarzbach, (1980) 35 NineteenthCentury Fiction 105 at 106, describing ‘Dickens’s deeply troubled vision of life in
society.’
118 Howard, supra note 104 at 149.
178 UNIVERSITY OF TORONTO LAW JOURNAL
in the universal order, ‘God made the country, but man made the
town.’119
The heart of urban planning in the early twentieth century, and the
most fundamental policy objective of Howard’s garden city, was the separation of uses of land into distinctive residential districts, as opposed to
commercial and industrial zones.120 This distinction, in keeping with the
evangelical tone of Howard’s land-use theories, has been characterized
by the courts as ‘a natural and sensible one and well within the broad
terms of the enabling statute [for municipal zoning authority].’121 It is
envisioned as a product of nature as much as it is a product of policy and
is part and parcel of the desired return to a less contrived mode of life
that reflects the ‘anti-urban animus’122 of its original thinkers. While the
entirely new garden cities were planned in order to repopulate the countryside,123 the twentieth-century phenomenon of zoning was implemented in order to bring a similar semblance of harmony and nature to
living conditions within the cities themselves.124
Given that the primary aesthetic of early town planning was one of
spontaneous development around natural, unplanned garden areas,
with ‘no wretched and festering suburb anywhere,’125 it is not surprising
that the corresponding politics of the movement had a distinctly anarchist strain.126 What is perhaps more surprising, and ironic, is that the
contemporaneous zoning policy in urban areas was one of hyper control. While the point of zoning is to distinguish between properties on
the basis of their location – with specified uses permitted in one zone
and prohibited under otherwise identical circumstances across an imposed boundary127 – the further point is to ensure strict uniformity from
119 William Cowper, ‘The Task’ in HS Milford, ed, The Poetical Works of William Cowper
(London: Oxford University Press, 1905) 127 at 143–4.
120 See R v Bell, [1979] 2 SCR 212 at 219, authorizing land zoning by usage but not when
the municipality deviates from use as a criterion of zoning.
121 Ottawa v Royal Trust Co, [1964] SCR 526 at 538.
122 William Peterson, ‘The Ideological Origins of Britain’s New Towns’ (1968) 36 Journal
of the American Institute of Planners 160 at 162.
123 Howard, supra note 104 at 42: ‘[I]t is deeply to be regretted that people should . . .
further deplete the country districts.’
124 Dugald MacFadyen, Sir Ebenezer Howard and the Town Planning Movement (Manchester,
UK: Manchester University Press, 1970) at 27: ‘Howard was thinking of a marriage of
Town and Country, a new phase of World civilization, an even more ambitious aim.’
125 Howard, supra note 104 at 50.
126 Elisée Reclus, ‘The Evolution of Cities’ (1895) 67 Contemporary Review 263, describing the ideal combination town and country life.
127 Bondi, supra note 6 at para 451: ‘On one side of an arbitrary line an owner may be prevented from doing something with his property which another owner, on the other
side of the line, with a property which corresponds in all respects except location, is
free to do.’
FANTASIES OF LAND-USE PLANNING LAW
179
one property to another.128 And while ‘mathematical identity of conditions does not always exist’129 and spot zoning is generally a permitted
exercise of municipal power where accompanied by a non-discriminatory
rationale,130 municipalities have come to eschew all individualized distinctions between parcels of land in the same locality, with differentiations or proximate mixing of uses rejected as displaying ‘no rhyme nor
reason, in a planning sense.’131
For reasons which harken back to Howard’s original garden-city
theories, the promotion of uniformity has gone together with an overarching planning-policy conviction that ‘[a] motivation to preserve lands
in their natural state is a proper municipal purpose.’132 The result has
been a transformation of the garden-city ideal into the ‘garden suburb’
reality: an accommodation of the middle-class family market in an environment adapted to automobiles, separate uses between commercial
and residential areas, social mobility, and a hierarchy of streets and
neighbourhoods.133 As transplanted from its English origins to North
America, the garden suburb supported rising property values, complete
with fully detached houses, easily accessible front-yard driveways and garages, and spacious setbacks and lawns.134 In other words, the physical
design features that worked best in marketing to a growing middle class
became embedded in suburban planning and its accompanying regulation. As scholars in the history of town planning have noted, ‘Howard’s
garden city theory disappeared even as the design elements associated
with it became omnipresent.’135
Critics have, in recent years, been at pains to point out that ‘[t]he two
elements of the suburban pattern that cause the greatest problems
are the extreme separation of uses and the vast distances between
things.’136 Indeed, so ubiquitous has the pattern of suburban development become that urban planning itself is now more a matter of public
administration and bureaucracy than it is a matter of design, all the
authentic design questions having been long ‘“solved” by civil engineers
128
129
130
131
132
133
134
135
136
City of Toronto v Mandelbaum, [1932] OR 552 (Ont Sup Ct).
Bondi, supra note 6 at para 451.
Re Township of North York, [1960] OR 374 (Ont CA).
Borough of North York v HG Winton Ltd (1978), 6 MPLR 1 at 12 (Ont Div Ct).
First National Properties Ltd v District of Highlands (2001), 17 MPLR (3d) 80 at 102
(BC CA).
See Barbara M Kelly, Expanding the American Dream: Building and Rebuilding Levittown
(Albany, NY: SUNY Press, 1993).
Jill Grant, ‘From ‘Sugar cookies’ to ‘Gingerbread men’: Conformity in Suburban
Design’ (2002) 151 Planners Network 10.
Grant, Planning, supra note 88 at 42.
Kunstler, Geography, supra note 95 at 117.
180 UNIVERSITY OF TORONTO LAW JOURNAL
and their brethren and written into the municipal zoning codes.’137
Accordingly, the traditionally most popular forms of urban habitat – ‘the
row house with a granny flat over the garage in the rear (accessed by the
service alley), across the street from the retail storefront with the lawyer’s
office above, with its third-floor residents looking down on the park, the
sidewalk café, and the corner grocery’138 – are not only contrary to modernist suburban design, they are generally illegal.139
The professional response to the modernist embrace of suburbia has
been twofold. On the one hand, scholars of landscape studies focus on
the empirical chronicling of suburbia’s manifestations, noting the architectural resemblance of structures built along commercial-highway strips
to traditional urban forms.140 In this school of thought, there is a resigned
fatalism as to the flaws of land-use policy and the resultant suburban
sprawl: ‘What shall be done about the new ubiquitous metropolis? The
answer is simple to phrase but not so simple to execute. We must learn to
live with it.’141 This uncritical posture may not always celebrate the unaesthetic results of uniform, automobile-centred planning policies,142 but it
tends to look at design pieces rather than at the whole community
effect.143 The upshot of the landscape science that emphasizes traffic features, uniformity, and technical detail over and above collective liveability
and human-scale developments is a wasteful,144 if spacious, form of
sprawling land use; the result has been the death of numerous suburbs at
the hands of a single detached zone.145 This phenomenon has, in turn,
prompted increased concerns over the finiteness of resources and the sustainability of the ever-expanding urban and suburban terrain.146 The
137 Ibid at 113.
138 Daniel K Slone & Doris S Goldstein, A Legal Guide to Urban and Sustainable Development
(Hoboken, NJ: John Wiley & Sons, 2008) at 2–3 [Slone & Goldstein].
139 Ibid at 1:‘[T]he places people love have been made illegal to build.’
140 See e.g. John Brinckerhoff Jackson, Discovering the Vernacular Landscape (New Haven:
Yale University Press, 1984).
141 Pierce Lewis, ‘The Galactic Metropolis’ in George Macinko & Rutherford H Platt, eds,
Beyond the Urban Fringe: Land Use Issues of Nonmetropolitan America (Minneapolis: University of Minnesota Press, 1983) 23 at 41–2.
142 Slone & Goldstein, supra note 138 at 6: ‘Automobile-centric design results in ugly
landscapes.’
143 Ibid at 25, contrasting contemporary zoning policy with more contemporary theories
of urbanism: ‘Urbanist law looks at the whole, not just the pieces.’
144 James Howard Kunstler, ‘Farewell to Suburbia,’ Ottawa Citizen (19 April 2008) B7:
‘[T]he project of suburbia represents the greatest misallocation of resources in the
history of the world.’
145 See Gombu, supra note 108 at A1, arguing that Mississauga and Brampton exhibit the
long-term effects of ‘sprawling, ad hoc development . . . [and] traffic congestion.’
146 See, e.g. Norman Myers, ‘Consumption: Challenge to Sustainable Development’
Science (4 April 1997) 53 at 53–7.
FANTASIES OF LAND-USE PLANNING LAW
181
zoning phenomenon that allocates more resources to separating properties than to linking them together has resulted in a level of degradation
of urban aesthetics and the inhabited environment that is difficult to
overstate.147
B THEY’LL ZONE YOU WHEN YOU’RE RIDING IN YOUR CAR
By contrast, urban planning itself has taken a theoretical turn back to a
resurrected form of urbanism. The movement in this direction began
with Jane Jacobs’s early 1960s writings celebrating a revival of dense and
mixed-use metropolitan neighbourhoods.148 This enthusiasm for neotraditional, pedestrian-friendly and transit-oriented streetscapes has coalesced around the banner of ‘New Urbanism,’149 advocating improving
communities through a variety of strategies from larger, county-sized regions to building-specific proposals.150 As a design movement, this retrourban aesthetic has eschewed the spatial expanses favoured by an open,
automobile-centred modernism151 in favour of walkable city centres with
well-defined edges that enclose and concentrate development rather
than allowing it to sprawl.152
From a sociological perspective, the new urbanists have sought to reacquaint modern cities with the historic form of the European quartier,
with its integration of ‘work, culture, leisure and residence into a dense
urban environment.’153 And as a political ideology, new urbanism drew
heavily on the romanticized Marxism of the late 1970s,154 using the call
for traditional building practices as a surrogate for the rejection of
147 Kunstler, Geography, supra note 95 at 122–3: ‘Thus, a Jacksonian student of landscape
can observe a Red Barn hamburger joint, he can remark on its architectural resemblance to certain farm structures of the past, measure its dimensions, figure out the
materials 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 that
degrades the community.’
148 Jacobs, supra note 107.
149 In the United Kingdom, the term ‘urban village’ is more prevalent than the North
American ‘New Urbanism’; although the design principles are similar, the British literature places greater emphasis on the ratio of employment to residential uses. See
Bridget Franklin & Malcolm Tait, ‘Constructing an Image: The Urban Village Concept in the UK’ (2002) 1 Planning Theory 250.
150 See Peter Katz, The New Urbanism: Toward an Architecture of Community (New York:
McGraw Hill, 1994).
151 For an early-modernist spatial manifesto, see Raymond Unwi, Nothing Gained by Overcrowding (London: Garden and Town Planning Association, 1912).
152 See Krier, ‘Drawings,’ supra note 90.
153 Leon Krier, Rational Architecture (Brussels: Archives d’Architecture Moderne, 1978) at
163.
154 Ibid at 180.
182 UNIVERSITY OF TORONTO LAW JOURNAL
market-driven development and the advocacy of a collective urban lifestyle and a more ‘authentic’ and popular democracy.155 It therefore contains echoes of the rebellious impetus for Ebenezer Howard’s garden city.
The new-urbanist theories have become so influential that, over time,
they have overflowed the left banks of their original proponents and
have flooded into the political mainstream. Neo-traditionalists have
come to embrace the American small town,156 sustainable inner urban
redesign,157 and regional and trans-county transit structures.158 These
various initiatives have typically been packaged with a quality of timelessness that espouses both classicism and ultra-modernism in an attempt to
appeal to all sectors of western culture.159
A form of new urbanism has claimed even the Prince of Wales as an
adherent, with HRH calling for a return to the design features of the
European city: ‘a well-formed square or courtyard [over] a random scattering of developers’ plots.’160 The new-urbanist designs have, in turn,
morphed into the ‘smart growth’ political movement and the ‘sustainability’ environmental platform,161 culminating in Ontario’s legislative
initiatives incorporating sustainable development values into amended
regional development plans.162 As one scholar has described the coalescence of these contemporary planning theories:
New urbanism tried to develop an environmental and social conscience, smart
growth manuals often illustrated the traditional urban forms popularised by
new urbanism and, in the wake of environmental concerns about global warming, sustainability became the mot du jour of discourse about cities.163
155 For a manifesto on ‘authenticity’ as a value in urban architecture, see Andres Duany,
Elizabeth Plater-Zyberk, & Jeff Speck, Suburban Nation: The Rise of Sprawl and the Decline
of the American Dream (New York: North Point Press, 2000).
156 Andres Duany & Elizabeth Plater-Zyberk, ‘The Second Coming of the American Small
Town’ (1992) 16 Wilson Quarterly 19.
157 Doug Kelbaugh, The Pedestrian Pocket Book: A New Suburban Design Strategy (New York:
Princeton Architectural Press, 1989).
158 Peter Calthorpe, ‘The Region’ in Peter Katz, ed, The New Urbanism: Toward an Architecture of Community (New York: McGraw-Hill, 1994) at xi.
159 Peter Calthorpe, The Next American Metropolis (New York: Princeton Architectural
Press, 1993) at 16.
160 HRH, The Prince of Wales, A Vision of Britain (London: Doubleday Press, 1989) at 87.
161 See generally, Pierre Filion, Trudi Bunting, & Leonard Gertler, ‘Cities and Transition:
Changing Patterns of Urban Growth and Form in Canada’ in T Bunting and P Filion,
eds, Canadian Cities in Transition: The Twenty-First Century, 2d ed (Oxford University
Press, 2000) 1.
162 Places to Grow Act, SO 2005, c 13, as amended 2009, c 12, Schedule L, s 18.
163 Jill Grant, ‘Theory and Practice in Planning the Suburbs: Challenges to Implementing
New Urbanism, Smart Growth, and Sustainability Principles’ (2009) 10 Planning
Theory and Practice 11 at 13 [Grant, ‘Theory’].
FANTASIES OF LAND-USE PLANNING LAW
183
Much as these theories have conquered the discursive side of the
urban planning discipline,164 the rhetoric of mixed use, walkability,
transit-orientation, and intensification has often been submerged in the
reality of suburban development.165 It is in the suburbs where consumers and developers converge in creating the real estate commodities
that make up the active markets,166 and it is there that the theoretical
niceties of the planning profession confront the combined public/private infrastructure driven by politicians, large landholders, smaller
builders, and marketing agencies.167 It is in the suburbs, in other
words, where the theories are most severely tested and most often
fail.168 Empirically, it is easy to discern the continued prevalence of single-family homes and auto-centric street design;169 garage-front houses
and private, gated communities proliferate,170 including in Canada,
where density tends overall to be more intense than in comparable US
cities.171
That is not to say, however, that new-urbanist design has not attracted
its adherents in the market. Indeed, many of the features espoused by
that movement have become aesthetic staples of the contemporary
development industry, albeit in a less comprehensive way than envisioned by the totalizing theories that would spawn entire neo-traditional
cities.172 Even those locales that have produced distinctly new-urbanist
developments, however, reveal a disjuncture between planning theory
164 Traditional suburban development has gone so out of favour in academic planning
circles that single-family, automobile-oriented housing development has been blamed
for ills as far afield as the North American tendency toward obesity; see Christine Kreyling, ‘Fat City: Are We Building Sick Communities?’(2001) 67 Planning 4.
165 Pierre Filion & Kathleen McSpurren, ‘Smart Growth and Development Reality: The
Difficult Coordination of Land Use and Transportation Objectives’ (2007) 44 Urban
Studies 501–523.
166 Grant, ‘Theory,’ supra note 163 at 14.
167 Michael Buzzelli & Richard Harris, ‘Cities as the Industrial Districts of Housebuilding’(2006) 30 International Journal of Urban and Regional Research 894; M Buzzelli
& R Harris, ‘Small Is Transient: Housebuilding Firms in Ontario, Canada’ (2003) 18
Housing Studies 369.
168 Andrejs Skaburskis, ‘New Urbanism and Sprawl: A Toronto Case Study’ (2006) 25
Journal of Planning Education and Research 233.
169 Karen Falconer Al-Hindi, ‘The New Urbanism: Where and for Whom?’ (2001) 22
Urban Geography 202.
170 Stephan E Barton & Carol J Silverman, ‘History and Structure of the Common Interest Community’ in S Barton & CJ Silverman, eds, Common Interest Communities: Private
Governments and the Public Interest (Berkeley: University of California Press, 1994) 3.
171 Larry S Bourne, ‘The Urban Sprawl Debate: Myths, Realities and Hidden Agendas’
(2001) 41 Plan Canada 26.
172 See Jill Grant, ‘Exploring the Influence of New Urbanism in Community Planning
Practice’ (2003) 20 Journal of Architectural and Planning Research 234.
184 UNIVERSITY OF TORONTO LAW JOURNAL
and practice.173 In the first place, new-urbanist developments are, for
the most part, quintessentially suburban, creating tame, insular enclaves
more characterized by their garden-city-like, sedentary atmosphere
than by any actual urban and therefore dangerous pulse.174 They are
typically located in former green-field sites on the outskirts of cities
rather than in their core175 and maintain their suburban-style residential/retail mix; higher densities do not appear to have reversed the
bedroom quality of these commuter enclaves.176 Accordingly, the ‘sustainable’ developments that ring major urban centres have not reduced,
but rather have added to, the phenomenon of sprawl that is their
avowed nemesis.177
Moreover, land values have placed new urban developments – already
among the more expensive forms of new housing growth178 – in the
most outlying locations. The result has been new communities with
increasingly lengthy commutes to centres of employment.179 Thus, with
the exception of some rather elite, gentrified enclaves in the urban
core,180 housing for the middle class has resisted intensification of densities and remained attached to the ever-expanding metropolitan peripheries.181 The ‘smart growth’ suburbs may be better designed, but they
173 On the impossibility of achieving Copernicus’s desired ‘unified, intuitively visualizable
representation of the cosmos that captures what is really there and is therefore aesthetically pleasing,’ see Thomas Nickles, From Copernicus to Ptolemy: Inconsistency and
Method (Amsterdam: Kluwer, 2002) at 3.
174 Peter Marcuse, ‘The New Urbanism: The Dangers So Far’ (2000)140 DISP: The Planning Review 4.
175 Tom Angotti, ‘NU: The Same Old Anti-Urbanism’ (2002) 151 Planners Network 18.
176 For a Canadian, suburban, new-urbanist example, see David Gordon & Ken Tamminga, ‘Large Scale Traditional Neighbourhood Development and Pre-Emptive Ecosystem Planning: The Markham Experience’ (2002) 7 Journal of Urban Design 321.
For the implementation of new-urbanist theories in Canada in a more urban setting,
see John Sewell, The Shape of the City: Toronto Struggles with Modern Planning (Toronto:
University of Toronto Press, 1993).
177 Jeffrey Zimmerman, ‘The “Nature” of Urbanism on the New Urbanist Frontier: Sustainable Development or Defense of the Suburban Dream?’ (2001) 22 Urban Geography 249 at 261, claiming that sustainable development ‘legitimates growth at the
urban fringe.’
178 Grant, ‘Aiming,’ supra note 12 at 167: ‘Emulating urban conditions that generate
high densities and facilitate mass transit use proves expensive in the contemporary
context.’
179 Douglas Frantz & Catherine Collins, Celebration USA: Living in Disney’s Brave New Town
(New York: Henry Holt, 1999).
180 John Caulfield, City Form and Everyday Life: Toronto’s Gentrification and Critical Social
Practice (Toronto: University of Toronto Press, 1994).
181 Ray Tomalty, The Compact Metropolis: Growth Management and Intensification in Vancouver, Toronto and Montreal (Toronto: ICURR, 1997).
FANTASIES OF LAND-USE PLANNING LAW
185
are no less suburban, and only in the stylistic sense ‘smarter’, than the
modernist, single-family, non-mixed-use variety.182
Moreover, the much vaunted public quality of open space in newurbanist theory183 is, for the most part, a strictly theoretical aspect of newurbanist developments. Indeed, critics have claimed that these high-end
enclaves have actually privatized what was heretofore publicly accessible
space184 and that the conversion of malls into town squares is more of
a mirage than a reality. In point of fact, the conversion just as frequently
moves in the opposite direction, with public sidewalks and streets being
closed off and occupied by licensed cafés and retail-oriented pedestrian
thoroughfares. This combined privatization of the formerly public realm
and dressed-up publicization of what is essentially private property exclusive to community residents and customers creates, in effect, the opposite
of what new urbanism so strenuously advocates. When this phenomenon
occurs in the urban core – its original and most natural home – the result
can be the transformation of an authentic cityscape into an entertainment district,185 marketed primarily to tourists and the wealthiest of residents, who live in a quasi-theme park.186
In addition to all of that, new urbanism’s sophisticated design standards
for public spaces have augmented the de-industrialization of the downtown core areas in which it aspires to take hold.187 To new-urbanist theorists, this phenomenon reflects nothing more and nothing less than the
municipal circle of life, ‘a free society organically adjusting its habitat.’188
This adjustment, however, has resulted in a rather notorious loss of public housing,189 forcing the poor to the periphery where their employment
(but where no new-urbanist aesthetic) lies as the affluent repopulate
the core. The ostensibly democratic and socially conscious planning
182 Hok-Lin Leung, ‘A New Kind of Sprawl’ (1995) 35 Plan Canada 4, describing designer
suburbs.
183 Charles Bohl, Place Making: Developing Town Centers, Main Streets, and Urban Villages
(Washington, DC: Urban Land Institute, 2002).
184 Karen Falconer Al-Hindi & Caedmon Staddon, ‘The Hidden Histories and Geographies of Neotraditional Town Planning: The Case of Seaside, Florida’ (1997) 15 Environment and Planning D: Society and Space 349 [Al-Hindi & Staddon].
185 See Sharon Zukin, Loft Living: Culture and Capital in Urban Change (Rutgers, NJ: Rutgers University Press, 1989), describing New York’s Soho district.
186 Mark Gottdiener, The Theming of America: Dreams, Visions, and Commercial Spaces (Boulder, CO: Westview Press, 1997).
187 On sophistication and quality of design and the need for expertise in planning newurbanist communities, see FK Al-Hindi & K Till, ‘(Re)placing the New Urbanism Debates: Towards an Interdisciplinary Research Agenda’ (2001) 22 Urban Geography 189.
188 Andres Duany, ‘Gentrification and the Paradox of Affordable Housing’ Pro-Urb Listserve (31 October 2001), cited in Grant, ‘Aiming,’ supra note 12 at 170.
189 Edward G Goetz, Clearing the Way: Deconcentrating the Poor in Urban America (Washington, DC: Urban Institute, 2003).
186 UNIVERSITY OF TORONTO LAW JOURNAL
movement, as a consequence, has contributed to the destruction of poor
and working-class neighbourhoods, displacing entire communities in its
economically classist wake.190
Far from an ‘emancipatory recovery of authentic forms of local urbanism,’191 new-urbanist developments have all but eliminated local, grassroots urban life.192 Although new urbanism, in theory, reacts against the
segregating, alienating effects of modernist suburban development193 –
indeed, its advocates rail against traditional planning policies that
have ‘deprived the poor of the most basic services while enriching the
country’s most privileged citizens [and] fueled racial and ethnic hostility’194 – critics of suburban development that spawned the new-urbanist
movement have tended to ignore the costs of their own proposals and
have generally over-argued their case.195 High-end residential communities may have come ungated,196 but the actual achievements of postmodernist urbanists are still far from planned egalitarian development.197
IV
Constitutional law: Wringing water from a zone
The efforts of courts and planners have combined to produce a doublebarrelled conundrum: an indeterminate legal framework for land-use
decisions and an indeterminate planning framework for property-rights
190 Richard Milgrom, ‘Engaging New Urbanism’ (2002) 151 Planners Network 2.
191 Al-Hindi & Staddon, supra note 184 at 369.
192 Alex Anas, ‘The Costs and Benefits of Fragmented Metropolitan Governance and the New
Regionalist Policies,’ Planning and Markets (1999), online: <http://www-pam.usc.edu>, describing new-urbanist development as among the least affordable in the United States.
193 See e.g. Katherine O’Regan & John Quigley, ‘Where Youth Live: Economic Effects of
Urban Space and Employment Prospects’ (1998) 35 Urban Studies 1187, describing
‘social isolation’ experienced in the traditional suburban development.
194 Jerry Frug, ‘The Geography of Community’ (1996) 48 Stan L Rev 1047 at 1048.
195 Peter Gordon & Harry W Richardson, ‘Critiquing Sprawl’s Critics’ (2000) 365 Policy
Analysis 1 at 2: ‘[A]dvocates of smart growth offer little analysis or discussion of the
costs, the implied tradeoffs, the consistency of the vision, or even the consumer’s
desire for such communities.’ See also Randall Crane, ‘Counterpoint: Accessibility
and Sprawl’ (2008) 1 J Transport and Land Use 13 at 13: ‘It is now more difficult to
argue that sprawl is new, peculiarly American, or universally bad, however one might
measure sprawl, new, American, or bad.’
196 See Citizens against Gated Enclaves v Whitley Heights Civic Association, 28 Cal (2d) 451
(Cal Ct App 1994), striking down homeowners’ associations’ actions in fencing off
public streets for limited access. For a survey of changes in zoning laws necessary for
the move from traditional suburban development to new-urbanist development, see
Brian W Ohm & Robert J Sitkowski, ‘The Influence of New Urbanism on Local Ordinances: The Twilight of Zoning?’ (2003) 35 Urban Lawyer 783.
197 On confronting inequality as an as yet unattained goal of local government, see
Sheryll D Cashin, ‘Localism, Self-Interest and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism’ (2000) 8 Geo LJ 1985.
FANTASIES OF LAND-USE PLANNING LAW
187
decisions. Conscious of the pervasive sense of ‘market failure’ that has
pressed planning theory into public service,198 local authorities have,
nevertheless, proved unable to fashion an overarching approach to
‘deliver[ing] the improvements in environmental quality that are now
demanded by electorates throughout the industrialized world.’199
Accordingly, they have come to implement their top-down powers by
means of ‘case-by-case evaluations and decisions, where public bodies
retain the power to contract as they please.’200 In an effort to combine
the needs of owners seeking development approval with the needs of
communities for amenities and services,201 municipalities have resorted
to deal making as a means of site-specific planning.202
Although municipalities generally have no authority to impose affirmative duties and design specifications on developers,203 it has been
found to be within a city’s exercise of public powers to contract with a
developer in relation to local amenities in return for development
approval.204 Where there is statutory language sanctioning such arrangements,205 local authorities can, and do, exact concessions and various
contractual specifications from owners.206 Accordingly, even though
198 Anthony Harrison, Economics and Land Use Planning (London: Croom Helm, 1977) at
62, identifying ‘a number of general ways in which markets may fail which are particularly relevant to land use planning.’
199 Pennington, Planning, supra note 11 at 1.
200 Stefano Moroni, ‘Land Use Planning and the Law’ (2007) 6 Planning Theory 107.
201 In US terminology, developers pay ‘various types of fees or provide goods in kind to
get permission to do their projects . . . collectively known as “exactions”’; William A
Fischel, Regulatory Takings (Cambridge, MA: Harvard University Press, 1995) at 341.
Exactions have been judicially defined as ‘land use decisions conditioning approval of
development on the dedication of property to public use’; City of Monterey v Del Monte
Dunes, 526 US 687 at 702 (1999).
202 Planning Act, supra note 14, s 37. See David Ruston, Let’s Make a Deal: Negotiating Developer
Contributions through Voluntary Planning Agreements in New South Wales (Sydney, Australia:
University of New South Wales, 2009) at 1.1: ‘Developer Contributions have emerged
within planning frameworks as the most common approach to funding the infrastructure which supports the basic needs of population growth and new development.’
203 Re Mississauga Golf & Country Club Ltd, [1963] 2 OR 625 (Ont CA). But see Sanbay Developments Ltd v City of London, [1975] 1 SCR 485, requiring specific agreements over
siting and design before issuing development approval.
204 First City Development Corp v Durham (Regional Municipality) (1989), 41 MPLR 241, cited
in 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), additional
reasons given [1970] 3 OR 492 (Ont CA), confirming that contractual arrangements
with developers are enforceable where there is specific statutory language authorizing
such contracting.
206 For a legal history of such contractual dealings between city governments and developers, see Vicki Been, ‘“Exit” as a Constraint on Land Use Exactions: Rethinking the
Unconstitutional Conditions Doctrine’ (1991) 91 Colum L Rev 473 at 478–83.
188 UNIVERSITY OF TORONTO LAW JOURNAL
municipal governments cannot literally sell zoning,207 they enjoy a caseby-case discretion to require developers to contribute local amenities
and social services as a quid quo pro for the approval process.208
Although Canada lacks a strong constitutional doctrine of regulatory
takings,209 severe downzoning has occasionally been seen by courts as
equivalent to a de facto expropriation.210 The more pressing question
with respect to zoning, however, is not so much with government takings, but with government ‘givings.’211 It seems obvious in other contexts
that if government doles out licences and privileges inconsistently or in
accordance with criteria unrelated to the sought-after licence,212 a
207 Vancouver v Registrar Vancouver Land Registration District, [1955] 2 DLR 709. See also
David P Jones & Anne S de Villars, eds, Principles of Administrative Law, 3d ed (Toronto:
Carswell, 1999) at 181. Since the 1950s, however, local authorities have had the power
to make payment for infrastructure a condition of subdivision approval; see Township
of Toronto v GS Shipp & Son Ltd, [1952] OWN 775 (OMB).
208 City of Toronto v Minto BYG Inc (2001), 20 MPLR (3d) 123 (Ont SC). The process is
one of contract and must, therefore, be consensual; Re Copthorne Holdings (1987), 36
MPLR 122 (OMB). The provision for ‘bonusing’ with respect to height and density
contained in section 16.2 of the City of Toronto Official Plan currently provides the
regulatory platform for such arrangements within Toronto; see City of Toronto v Minto
BYG 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 section
7 could operate to protect economic rights as an open question. For a thorough
review of the constitutional position, see Bryan P Schwartz & Melanie R Bueckert,
‘Regulatory Takings in Canada’ (2006) 5 Washington University Global Studies Law
Review 477.
210 It has been the OMB’s position that where lands are downzoned for conservation or
recreational purposes for the benefit of the public at large (i.e., for park lands), the
zoning change will only be approved where the governmental authority is prepared to
acquire the lands within a reasonable time; Re Nepean Restricted Area By-law 73/76
(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 Plan
Amendment No 20 (2003), 46 OMBR 78 (OMB). Elsewhere, local government must
compensate a landowner for sterilizing or downzoning of property in advance of a
purchase 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 the
land for possible future use as a park; Mariner Real Estate Ltd v Nova Scotia (1999), 177
DLR (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 ‘sufficient severity
to remove virtually all of the rights associated with the property holder’s interest.’ See
also, Expropriations Act, RSO 1990, c E.26; and Local Government Act, RSBC 1996, c 323,
s 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 Press,
1993) at 4–5.
212 Reference re Manitoba Language Rights, [1985] 1 SCR 721 at para 59, describing the rule
of law as ‘preclusive of the influence of arbitrary power.’
FANTASIES OF LAND-USE PLANNING LAW
189
constitutionally significant rule-of-law problem is thereby raised. The
notion of bonus zoning, where local authorities grant to some what
others cannot access, raises the bar of examination potentially to the
level of constitutional law.
Accordingly, municipalities, review boards, and courts have struggled
with the question of whether an ‘essential nexus’ must exist between the
zoning restriction being lifted and the property owner’s concession offered in return.213 Likewise, they have flowed back and forth on whether
there needs to be any ‘rough proportionality’ between the value of the
property concessions exacted from the owner and the harm or costs engendered by the spot zoning.214 The quest, in other words, has been not
so much for optimal efficiency in resource allocation as between developer and local community215 but rather for efficient allocations within a
constitutional framework that prohibits government’s excesses.216
Perhaps the best example is provided by the 1430 Yonge Street
appeal,217 where the city of Toronto demanded, and the OMB approved,
that the developer provide a number of amenities unrelated to the development itself. These included a $25,000 cash payment and the installing
in a nearby park of a number of permanent benches and a water fountain for dogs.218 The board reasoned that the magnitude of the section
37 bonus was ‘commensurate with the additional density or development
rights achieved beyond those permitted as of right.’219 It then concluded
that the additions to the park, although several blocks from and not
‘related or justified by the project,’220 did constitute a ‘benefit to the
public’221 that could be imposed by the city under section 37 of the Planning Act even in the absence of an agreement. The court reasoned that,
213 ‘Essential nexus’ is the first half of the ‘unconstitutional conditions’ doctrine formulated by the Supreme Court of the United States; Nollan v California Coastal Commission, 483 US 825 (1987) [Nollan].
214 ‘Rough proportionality’ is the second half of the ‘unconstitutional conditions’ doctrine under US constitutional law; Dolan v City of Tigard, 512 US 374 (1994).
215 William A Fischel, ‘The Economics of Land Use Exactions: A Property Rights Analysis’
(1987) 50 Law & Contemp Probs 101 at 104–6, describing how the nexus and proportionality rules can, on occasion, reduce efficient allocations.
216 Lee Anne Fennell, ‘Hard Bargains and Real Steals: Land Use Exactions Revisited’
(2000) 86 Iowa L Rev 1 at 13 [Fennell]: ‘The Nollan/Dolan rules are perhaps best
understood as a highly visible symbolic protest against governmental excess.’ Government excess may, of course, be benevolently motivated; see Jerold S Kayden, ‘Zoning
for Dollars: New Rules for an Old Game?’ (1991) 39 Wash UJ Urb & Contemp L 3.
217 Re City of Toronto Official Plan Residential Building Amendment, [2003] OMB Dec No 926
(OMB).
218 Ibid.
219 Ibid at para 18.
220 Ibid at para 22.
221 Ibid.
190 UNIVERSITY OF TORONTO LAW JOURNAL
since the public could see the developer/owner ‘getting additional
development rights, the public should receive some tangible benefit.’222
Any requirement of a nexus that would link the park benches and fountain to the development itself 223 was thereby thrown to the dogs.
On the other side of the coin, the OMB has, on different occasions, acknowledged that, starved as municipalities might be during times of fiscal restraint, ‘[t]he Planning Act is not a revenue statute.’224 In the
process, it has embraced the requirement that ‘there must be a nexus
between the development and the section 37 [of the Planning Act] benefits.’225 Indeed, the board has been at pains to specify that ‘the benefits
[exacted from the developer] pertain to the development (whether onsite or off), not to unrelated municipal projects (no matter how meritorious).’226 On this reasoning, planning officials cannot, when they see a
developer coming their way, compile ‘a wish list prepared on an ad hoc
basis as a result of an application filed for a rezoning.’227
It should be noted that, in Toronto, section 37 agreements were standardized as a matter of city policy in late 2007.228 The policy requires
any bargain to be construed as resulting in development that in one way
or another constitutes ‘good planning.’229 Toronto’s Official Plan then
goes on to provide a list of criteria, or guidance points, for implementation of this term.230 In Toronto and other municipalities with similar
222 Ibid at para 23.
223 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 Ibid.
226 Ibid.
227 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 19–20 November 2007) and Protocol for Negotiating Section 37 Community Benefits (as adopted by City Council at meeting of 11–3 December 2007) [Implementation Guidelines], online: City of Toronto <http://www.toronto.ca/planning/pdf/
s37_consolidation_080117.pdf>.
229 Ibid, s 2.1.
230 City of Toronto, Toronto Official Plan (Toronto: City of Toronto, 2010) (as consolidated December 2010) at ch 5.1.1, online: <http://www.toronto.ca/planning/offi
cial_plan/pdf_chapter1-5/chapters1_5_dec2010.pdf> [Toronto Official Plan]. The
Official Plan provides: ‘(a) The capital facilities must bear a reasonable planning relationship to the increase in the height and/or density of a proposed development
including, at a minimum, having an appropriate geographic relationship to the development and addressing planning issues associated with the development; [¶] ((b)
The development must constitute good planning, be consistent with the objectives
and policies of this Plan, and comply with the built form policies and all applicable
neighbourhood protection policies; and [¶] (c) The use of Section 37 must be contingent upon adequate infrastructure to support the development.’
FANTASIES OF LAND-USE PLANNING LAW
191
policies, therefore, the problem of identifying fair bargains – generally
thought of as one of fair allocation of financial responsibility for community amenities – has been displaced with the search for ‘good planning.’
The notion that the latter is more determinate than the former, however, is itself one more illusion of the planning discipline and its attendant bureaucracy.
Once the board adopts the view that the benefits to be received by the
city amount to something more specific than a general improvement
to the neighbourhood,231 the section 37 bargain can become a onesided affair. Indeed, the process can ultimately convert an accommodation that is otherwise described as ‘voluntary and nothing more’232 into
a coercive arrangement. The city must, of course, satisfy its onus in showing that there is some nexus between the development and the exacted
benefit and that the proposition conforms with the general criteria of
‘good planning’;233 but after that, the OMB has had little trouble in posing the central question as to whether the exaction amounts to a fair
return on the value added by the increased density or other zoning permissions.234 The courts have characterized zoning decisions as ‘transcend[ing] the interests of the immediate parties’235 – an attitude which
has, in turn, led to a tolerance for extra-contractual terms imposed in
the guise of a section 37 agreement.236
The fact that the bargains struck with a local authority are, in effect,
less than voluntary puts a different face on those economic theories that
have endorsed zoning as a saleable right.237 Building on the seminal
work of Ronald Coase,238 economics scholars contend that bundling the
public zoning power as yet one more negotiable instrument in the real
property market has the effect of correcting market deficiencies by collecting 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 city’s 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 criteria, 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 evidence is permitted as proof of a collateral bargain, fall short of imposing unbargained
terms 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 explored in William A Fischel, The Economics of Zoning Laws: A Property Rights Approach to
American Land Use Controls (Baltimore, MD: Johns Hopkins University Press, 1985).
238 Ronald Coase, ‘The Problem of Social Cost’ (1960) 3 J Legal Econ 1.
192 UNIVERSITY OF TORONTO LAW JOURNAL
transaction costs and community interests.239 The result, it is argued, is a
more efficient allocation of land resources across communities, allowing
developers ‘to engage in a proposed land use by paying a specific in-kind
price – the remediation of all cognizable negative externalities.’240 Freely
alienable zoning power under something equivalent to, although more
all-encompassing than, section 37 of the Planning Act241 would provide
communities with a means of compensating themselves for any negative
effects of a development proposal and, at the same time, would provide
developers with a means of valuing the zoning permission they seek.242
Pitted against this market-oriented view of zoning as a commodified,
remedial approach to the market deficiencies, is a view that such ‘incentive zoning’243 or ‘density bonusing’244 does little more than to ‘require
the landowner to give up what he is legally permitted to have in order to
obtain what he may already be entitled to.’245 In Justice Scalia’s view,
239 In this, the property rights theorists are close intellectual relatives of institutional
economists; see Lawrence Wai-Chung Lai, ‘Neo-Institutional Economics and Planning
Theory’ (2005) 4 Plan Theory 8. For a useful assessment of Coase’s relevance to planning law, see Kaplinsky, supra note 4 at 27–30.
240 Fennell, supra note 216 at 68. Fennell goes on to note, ibid, that under a full-fledged
bargaining approach to development approval, ‘[t]he landowner thus holds a right to
buy something (here, the community’s entitlement to prevent development of a certain nature) at a specified price (the in-kind remediation of cognizable negative externalities), while the community has no right to veto the transaction.’ The proposal
builds on notions that liability rules provide owners with a form of ‘call option,’ under
which they can elect ‘to buy the entitlement for the damage amount’; Ian Ayres &
Eric Talley, ‘Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean
Trade’ (1995) 104 Yale LJ 1027 at 1041. For other versions of this proposal, see Robert
C Ellickson, ‘Suburban Growth Controls: An Economic and Legal Analysis’ (1977) 86
Yale LJ 385; Ian Ayres & JM Balkin, ‘Legal Entitlements as Auctions: Property Rules,
Liability Rules, and Beyond’ (1996) 106 Yale LJ 703; and Frederick W Acker, ‘Performance Zoning’ (1991) 67 Notre Dame L Rev 363.
241 In 584952 Ontario Ltd v City of Toronto, [2007] OMB Dec No 827 (OMB), the board
noted that the sole trigger for section 37 benefits is increased density. This limitation,
however, is more typically honoured in its breach.
242 For the seminal work on this theory of Coasean bargaining in land use, see William A
Fischel, ‘A Property Rights Approach to Municipal Zoning’ (1978) 54 Land Economics 64.
243 Levitt v Town of South Kingstown, RI Sup Ct LEXIS 12 at 6 (RI Sup Ct 2001), defining
incentive zoning as ‘[t]he process whereby the local authority may grant additional
development capacity in exchange for the developer’s provision of a public benefit or
amenity as specified in the local ordinances.’
244 Palmer/Sixth Street Properties v City of Los Angeles, 175 Cal App 4th 1396 (Cal Ct App
2009) at n 7, stating that ‘[a] density bonus is an incentive, in the form of a density
increase, which local governments provide in return for a developer’s voluntary inclusion of affordable housing units within a project.’
245 Outdoor Systems v City of Mesa, 819 P 2d 44 at 53 (Ariz SC 1991), Cameron J, dissenting
[Outdoor Systems].
FANTASIES OF LAND-USE PLANNING LAW
193
such schemes provide owners with a ‘take it or leave it’ option that
makes the conditions demanded in return for development approval ‘an
out-and-out plan of extortion.’246 Characterizing the opposition to such
pseudo-bargains as a manifestation of ‘fear and loathing’ of government
manipulation,247 commentators and courts in the United States have
begun to equate exactions – especially those imposed without proof of
negative externalities flowing from a development proposal248 – with its
far more sinister linguistic cousin.249 The involuntary nature of landowners’ concessions to overreaching municipalities,250 effectively permitting them ‘to pay for the privilege of using their land,’251 has been seen
to violate fundamental constitutional principles that cannot be bargained away.252
Despite an equally jaded view of negotiated bonuses making the occasional appearances in Canadian planning literature,253 bargaining over
height and density exemptions from otherwise applicable zoning has
become increasingly entrenched. As already discussed, a direction to
use – and, in a general way, how to use – the incentive provision of the
Planning Act has been expressly embedded in the text of Toronto’s Official Plan.254 And while this link to statutory authorization in one sense
represents rule-of-law compliance,255 it also accentuates the fact that
property rights can be defined by deal making;256 that is, expanded or
246 Nollan, supra note 213 at 837.
247 Robert L Glicksman, ‘Fear and Loathing on the Federal Lands’ (1997) 45 U Kans L
Rev 647; Mitchell F Disney, ‘Fear and Loathing on the California Coastline: Are
Coastal Commission Property Exactions Constitutional?’ (1987) 14 Pepp L Rev 357.
248 William J Jones Insurance Trust v Fort Smith, 731 F Supp 912 at 914 (WD Ark 1990), stating that, absent demonstrable externalities relating to the landowner’s proposal, ‘the
condition which the City attaches to building permits is simple extortion.’
249 Outdoor Systems, supra note 245 at 53, characterizing incentive zoning as ‘bureaucratic
extortion, if not judicial extortion’; see generally Gregory S Alexander, ‘Takings, Narratives, and Power’ (1988) 88 Colum L Rev 1752 at 1764–7.
250 Fennell, supra note 216 at 14: ‘[T]he term used to designate the landowner’s concession
in the land use bargain – “exaction” – is not just heavily loaded but is actually a synonym
for “extortion,”’ citing Black’s Law Dictionary, 6th ed, sub verbo ‘exaction’: ‘exaction’ is
‘[t]he wrongful act of an officer or other person in compelling payment of a fee or
reward for his services, under color of his official authority, where no payment is due.’
251 JED Assoc’s, 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, ‘Planning or Blackmail?’ (1985) 25 Plan Canada 8.
254 Supra note 230.
255 AV Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan,
1885) at 167 [Dicey]: ‘The first of these features is the omnipotence or undisputed
supremacy . . . [and] sovereignty of Parliament.’
256 Patrick Devine, Section 37: ‘An Update on Let’s Make A Deal Planning’ (5 March
2008), online: Fraser Milner Casgrain LLP, <http://www.fmc-law.com/upload/en/
publications/2008/RealEstate_Mar2008_Devine_Sliwa_Section37.pdf.>
194 UNIVERSITY OF TORONTO LAW JOURNAL
limited, on an individualized basis, contrary to the legal equality of rights
holders that permeates constitutional governance.257
Indeed, the freedom of contract that lies at the heart of section 37 arrangements may be less free, and less contractual, than the Planning
Act’s language would suggest. In a style reminiscent of Edward G Robinson in Little Caesar,258 the Toronto Official Plan, like the old-school
underworld,259 allows owners ‘to elect to develop at such increased
height and/or density as may be permitted . . . in return for providing
specified capital facilities . . . or else to develop in accordance with the
height and density permitted by the zoning by-law in the absence of any
such increases.’260 It authorizes use of section 37 of the Planning Act for
an assortment of listed purposes, including the preservation of heritage
resources,261 the replacement of rental housing,262 and the securing of
capital assets for the community at large.263 The Official Plan specifically
adopts the nexus requirement;264 more to the point, however, use of the
bonus/incentive method is tempered by the admonishment – repeated
in the guidelines for the Plan’s implementation265 – that the development facilitated by section 37 ‘must constitute good planning.’266
It is thus the ‘good planning’ criterion that ultimately inhibits a municipality’s overzealous attempt to extract – or exact – water from a landowner’s stone. And since planning decisions, like all administrative acts,
must be made ‘“according to law” and in accordance with proper principles reflected in the “policy and objects of the [governing] Act,”’267
257 Dicey, supra note 255 at 167: ‘In England the idea of legal equality, or of the universal
subjection of all classes to one law . . . has been pushed to its utmost limit.’
258 Little Caesar, 1930, Warner Brothers; see Rob MacDonald, ‘UDI Forecast Luncheon
Speech,’ Goodman Report (23 January 2009), online: <http://www.goodmanreport.
com/Expert.asp?id=205>, describing ‘the blackmail cloaked as voluntary contributions that often go along with the development approval process.’
259 See Re Mediplex of Connecticut, Inc, 319 Decisions and Orders of the National Labor Relations Board 281 at 288 (1995), where a witness recounts the threat that he ‘had a
nice car’ and that ‘it would be a shame if anything happened to it.’ See also State of Arizona v Walker, 2008 WL 2168004 at para 17 (Ariz Ct App 2008), dismissing the defendant’s argument that prosecutor’s release document amounted to ‘an offer he
[couldn’t] refuse.’
260 Toronto Official Plan, supra note 230, s 5.1.1, policy 2.
261 Ibid, s 5.1.1, policy 5(a).
262 Ibid, s 5.1.1, policy 5(b).
263 Ibid, s 5.1.1, policy 5(d).
264 Ibid, s 5.1.1, policy 1(a).
265 Implementation Guidelines, supra note 228.
266 Toronto Official Plan, supra note 230, s 5.1.1, policy 1(b); Implementation Guidelines, supra note 228, s 1: ‘The proposed development must represent good
planning.’
267 Oakwood Developments, supra note 37 at para 16, citing Padfield, supra note 86 at 1034.
FANTASIES OF LAND-USE PLANNING LAW
195
the meaning of ‘good planning’ is central to the development approval
enterprise. All of which brings the analysis full circle to the fantasies of
land-use planning. We may turn out to be deferent and to permit quasivoluntary regulatory bargains based on a mythological sense of ‘good
planning.’268 The rule of law – ‘open, stable, clear, and general rules,
[with] even-handed enforcement of those laws,’269 – cannot be satisfied
by a discipline based on little more than ideology and taste.270 And while
the legislative authorization for these bureaucratic practices may provide
them with a modicum of protection from review by the courts,271 the
debate over these legal values is still very much engaged.
It is not enough to say, as planners are wont to, that ‘design matters,’272 or that ‘aesthetic standards are an appropriate component of
land use.’273 As can be seen in the suburban versus new urban debate,
there is a dearth of objective criteria on which to measure one planning
theory against another. Ironically, design factors, the one set of criteria
traditionally been thought to be off regulatory limits,274 have gone from
nothing to everything (or, at least, to a significant factor). Aesthetic interests are more than just one among many ways to exercise the state’s
regulatory power over property;275 decision makers are now fully
engaged in ensuring that a new development be ‘a place of pleasing
design 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 26:
‘Does the good community require a particular shape? . . . For every household willing
to buy a home in a compact transit node, another two to four households may choose
detached homes in the suburbs.’
269 British Columbia v Imperial Tobacco Canada Ltd, [2005] 2 SCR 473, citing PW Hogg &
CF Zwibel, ‘The Rule of Law in the Supreme Court of Canada’ (2005) 55 UTLJ 715 at
717–8. 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 (Cambridge, UK: Cambridge University Press, 1974) at 18, describing the original impetus
for town planning as having two dimensions: ‘aesthetic/architectural, and social.’
271 See Authorson v Attorney General of Canada, [2003] 2 SCR 40 at para 15: ‘The Department
of Veterans Affairs Act, s 5.1(4) takes a property claim from a vulnerable group, in disregard of the Crown’s fiduciary duty to disabled veterans. However, that taking is within
the power of Parliament.’
272 Edward T McMahon, ‘Design Matters’ (1996) 21 Planning Commissioners Journal 5.
273 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 (Md
1908) at 114: ‘[P]urely aesthetic restrictions on buildings will not be tolerated.’
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 of
‘increasingly stringent engineering and design standards, a continuous shifting of the
costs of improvements and services from municipalities to developers, and increased
public control over all aspects of subdivision.’
196 UNIVERSITY OF TORONTO LAW JOURNAL
of charm.’276 In the absence of objective planning criteria, all the planning profession – and, consequently, the law – has to offer is an effort to
ensure that the city be ‘beautiful as well as healthy.’277
V
The sword in the zone
Just as ‘blight is an elastic concept,’278 so is its opposite; ‘good planning’
is as elastic a concept as bad planning, all of which is as elusive as good
and bad taste.279 When the subjectivity of the governing planning
theories is coupled with the coercive possibilities of incentive zoning,280
the mix is antithetical to the rule of law.281 It is simply not possible to
determine whether the local authority ‘has taken into consideration
matters which were not proper to be regarded, or has omitted to consider matters which were of direct importance,’282 since there are no
agreed upon criteria which span the potentially applicable planning approaches. The criteria are inherently subjective in every sense of the
term.283
It is a fundamental that in a society ‘founded on the rule of law . . .
the statute and regulations define the scope of the [public officials’] discretion.’284 It is equally obvious that no valid discretion exists where
the exercise of the administrative power becomes ‘equated with
276 Berman v Parker, 348 US 26 at 33 (1954).
277 Ibid.
278 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 & Dist Co v City of Denver, 107 P 261 at 264 (Col SC 1910): ‘The
cut of dress, the color of garment worn, the styles of hat, the architecture of the building, or its color may be distasteful to the refined senses of some, but government can
neither control nor regulate in such affairs.’
280 For the perfect combination of the aesthetic and marketable nature of zoning control,
see Ehrlich v City of Culver City, 911 P 2d 429 (Cal SC 1996), upholding the city’s ‘fee in
lieu of art’ exaction on developer.
281 See Roncarelli, supra note 85 at 142, condemning executive action ‘dictated by and according to the arbitrary likes, dislikes . . . of public officers’ as contrary to the rule of
law.
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 a
matter of disputed politics; see Euclid v Ambler Realty Co, 272 US 365 at 393 (1926): ‘If
[zoning ordinances] are not satisfying to a majority of the citizens, their recourse is
to the ballot – not the courts,’ citing State v New Orleans, 97 So 440 at 444 (La
SC 1923).
284 City of Montréal v Montreal Port Authority, [2010] 1 SCR 427 at para 33.
FANTASIES OF LAND-USE PLANNING LAW
197
arbitrariness.’285 Since it is likely that successive municipal councils or
land-use regulatory bodies ‘might never agree on what the public
needs from an aesthetic standpoint,’286 the system puts city officials’ veto
power over land use ‘at a continual seesaw.’287 That state of ideological
and aesthetic flux,288 in turn, inevitably abuses constitutional values.289
There is good reason that ‘[b]eauty has been the queen in many areas
but has never been a favorite of the law.’290 Defence of the community –
the zoning shield – has become, in the hands of municipal authorities, a
means by which to slash away at the individual landowner – a regulatory
sword. This sword in the zone cries out for a substantial reduction, or
possibly the elimination, of current local government practices. There is,
arguably, a discernible need for a new, autonomous deal for cities
enabling them to control their finances,291 toxic emissions292 and other
measurable harms;293 but the imposition of good taste in the guise of
good planning serves no such cognizable ends.
Wholesale change is an admittedly impractical notion, given the
deeply ingrained place of zoning law in the land-regulatory regime.294
Our neural pathways are impressed with the image of a regime of local
governance of which zoning is an integral part. Nevertheless, something
must be done to transform a regulatory system built at least partly on
subjective aesthetic and ideological criteria; one that has managed to
285
286
287
288
289
290
291
292
293
294
Ibid.
City of Youngstown v Kahn Bros Building Co, 148 NE 842 at 844 (Ohio SC 1925).
Ibid.
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 Fourteenth Amendment’s due process clause.
Charter, supra note 102: ‘Whereas Canada is founded upon principles that recognize . . . the rule of law . . .’; Hill v Church of Scientology, [1995] 2 SCR 1130, recognizing
‘Charter values’ as a source of constitutional law; Godbout v City of Longueuil, [1997] 3
SCR 844: ‘Indeed, municipalities – although institutionally distinct from the provincial
governments that create them – cannot but be described as “‘governmental entities”’
at para 50.
William H Agnor, ‘Beauty Begins a Comeback: Aesthetic Considerations in Zoning’
(1962) 11 Journal of Public Law 260.
See e.g. United Taxi Drivers’ Fellowship of Southern Alberta v City of Calgary, [2004] 1 SCR
485, expanding the interpretation of a municipality’s business licensing authority.
Croplife Canada v City of Toronto (2005), 75 OR (3d) 357 (Ont CA), upholding a pesticide control by-law.
Spraytech v Town of Hudson, [2001] 2 SCR 241 at para 31, invoking the ‘precautionary
principle’ in upholding a by-law banning lawn spray based on material risk of harm.
Carol M Rose, ‘Planning and Dealing: Piecemeal Land Controls as a Problem of Local
Legitimacy’ (1983) 71 Cal L Rev 837 at 844, stating that privatization of planning regimes ‘would require a forbidding array of changes in current land use regulatory
practice’; also Fennell, supra note 216 at 85: ‘The long history of zoning and land use
planning presents a formidable obstacle.’
198 UNIVERSITY OF TORONTO LAW JOURNAL
convert the methodical, property-value shield of zoning law into an
impulsive, property-value sword of development control. At the very
least, courts must ensure that land-use controls and their concomitant
trade-offs, bonuses and exactions go no further than necessary in addressing the direct externalities of development.295
The built environment may well connect with the cultural environment,296 all of which is no doubt important for society’s future.297
Indeed, planning, design, and city identity have merged in the discourse
of contemporary urban affairs298 so as to legitimate municipal officials’
use of their regulatory authority to protect against signage clutter and
other visual assaults on the local public image.299 The overriding legal
treatment, however, must strain to avoid aesthetic judgment.300 For a
planning bureaucracy to lead rather than to follow the material culture is not only to take an illiberal turn from the ordinary process;301
295 For a market-oriented proposal for wholesale deregulation and replacing of traditional zoning law, see Doublas W Kmiec, ‘Deregulating Land Use: An Alternative Free
Enterprise Development System’ (1981) 130 U Pa L Rev 28. For a more modest,
common-law alternative aimed at internalizing the externalities of development, see
Robert C Ellickson, ‘Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as
Land Use Controls’ (1973) 40 U Chicago L Rev 681.
296 On the relationship between culture (especially future-oriented cultural decay) and
urban architecture and the looming crisis in both, see James Howard Kunstler, The
City in the Mind: Notes on the Urban Condition (New York: Simon & Schuster, 2002) at
141: ‘If Las Vegas is truly our city of the future, then we might as well all cut our own
throats tomorrow.’
297 See Norman Williams, ‘Legal Techniques to Protect and to Promote Aesthetics along
Transportation Corridors’ (1968) 17 Buff L Rev 701.
298 Koray Velabeyoglu, Urban Design in the Post-Modern Context (Izmir, Turkey: Izmir Institute of Technology, 1999) at 14.
299 City Council v Taxpayers for Vincent 466 US 789 at 807 (1984), upholding a prohibition
on ‘the visual assault on the citizens of Los Angeles presented by an accumulation of
signs posted on public property.’
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 committee;
also Metromedia, Inc v San Diego, 453 US 490 at 507–8 (1981), stating that a city’s aesthetic interests are substantial enough to justify content-neutral prohibition against
billboards.
301 Monika Sharma, Neetika Mor, & Amit Kumar, Urban Typology at 4, online: 7-UrbanTypology <http://www.scribd.com/doc/32003159/>: ‘Culture is the prime force that
develops settlement types by trials in long time periods’; Graeme Evans, Cultural Planning: An Urban Renaissance? (London: Routledge, 2001) at 32: ‘[A] lack of democratic
consensus and a cultural planning approach are common [to planning typologies].’
In fact, the governmental approval apparatus tends to straddle imposing and reflecting the material culture. For an illustration of this ambiguous relationship and a thorough analysis of how the subdivision approval process is ‘designed first and foremost
to maximize the community’s influence on the form of the development,’ see Kaplinsky, supra note 4 at 229, and ibid, ch 3 at pt 3.
FANTASIES OF LAND-USE PLANNING LAW
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it is to immerse oneself in a fallacy.302 The illusion of legal craftsmanship, of sculpting the planned city and suburb, is a fantasy whose time
is up.
302 Dick Stanley, ‘The Three Faces of Culture’ in Caroline Andres, Monica Gattinger, M
Sharon Jeannotte, & Will Straw, eds, Accounting for Culture: Thinking Through Cultural
Citizenship (Ottawa: University of Ottawa Press, 2005) at 20–1, stating that culture is
related to citizenship, not hierarchy or authority. Herbert J Gans, ‘Urban Vitality and
the Fallacy of Physical Determinism’ in Herbert J Gans, ed, People, Plans and Policies
(New York: Columbia University Press, 1991) at 35, noting the ‘physical fallacy’ that
leads critics and contemporary planners to ‘ignore the social, cultural, and economic
factors that contribute to vitality and dullness . . . and blind(s) [them] to the true
causes of the city’s problems.’