Councillor Doug Ford’s new development scheme for the Port Lands risks a significantly revised environmental assessment, throwing into doubt the promised six-year timeline for his project while potentially adding millions of dollars in additional costs, according to several lawyers familiar with the regulations.
Mr. Ford also faces the possibility of an investigation by the city’s lobbyist registrar over private meetings with representatives for the Westfield Group, an Australian shopping-mall developer. The Globe and Mail has learned that Paul Magder, a resident of the former city of York, is filing a complaint today, alleging that the company didn’t disclose its lobbying activities.
Mr. Ford’s tourist-friendly vision for the Port Lands, to be formally unveiled Tuesday at city hall, involves a mega-mall, hotels, a giant Ferris wheel and a monorail. It diverges sharply from Waterfront Toronto’s current plan, which calls for the naturalization of the mouth of the Don around a newly created delta surrounded by medium-density neighbourhoods, instead of forcing the river to turn west into the Keating Channel.
Mr. Ford’s plan largely leaves the Keating Channel intact while creating a “greenway,” running south toward the shipping channel, to accommodate possible flooding.
The environmental assessment for Waterfront Toronto’s current plan – which cost $19-million but has not yet been approved by Queen’s Park – took nine years to complete. During the process, consultants evaluated five options for naturalizing the mouth of the Don, and ranked Waterfront Toronto’s plan as “most preferred.”
The configuration in the Ford plan was deemed “moderately preferred,” scoring lower in four of seven categories. However, the assessment concluded it would be easier to build and better integrated with existing infrastructure than Waterfront Toronto’s proposal.
The city’s next challenge, according to those familiar with the assessment rules, is persuading provincial officials that they should sign off on a new plan that scored lower than what’s been on the drawing board now for several years. The Toronto Port Lands Corp., which owns the land, will be hiring engineers to peer review the results.
The ultimate decision, which falls with the Minister of the Environment, “is undeniably political,” observes development lawyer Jeff Davies, who notes that the law allows assessments to be amended.
Others predict the city will have to turn back the clock. “It will have to be done again,” said Joseph Castrilli, counsel for the Canadian Environmental Law Association. “If what goes forward is the sort of thing Ford has talked about, the existing impact assessment will be useless.”
“This proposal could be quite complicated,” added Juli Abouchar, a partner with Willms & Shier, a firm that specializes in environmental law. “I can’t see it being a fast process.”
According to a provincial spokesperson, whether or not the assessment changes will depend on the magnitude of the changes requested by the city.
“Small changes can be made through an amendment to an existing environmental assessment, while major changes that alter the scope or original nature of the project may require new or additional environmental assessment study and work,” said Kate Jordan, a spokesperson for the Ontario Ministry of the Environment.
Although the assessment was completed earlier this spring, provincial officials have yet to sign off on the proposal, which is estimated to cost $634-million, not including cleanup costs.
Mr. Ford said last week that the city can tweak the existing Lower Don/Port Lands assessment in order to proceed with a cheaper redevelopment strategy. “We are not just going to throw the EA down the toilet,” he said. “We can amend it and use it.”
But lawyer Rodney Northey, who specializes in environment assessments, noted that Mr. Ford “may be under some misapprehension” that the city can unilaterally alter legally binding elements of the assessment or even insert itself into a process initiated by two agencies (Waterfront Toronto and the TRCA) that are themselves owned by other government bodies.
The process, which is set out in provincial law, requires the backers of a project to first develop a “terms of reference” document based on consultations with the public, as well as affected public and private organizations. In the case of the lower Don and the Port Lands, the process was particularly involved because the list of stakeholders involved all three levels of government, several public sector agencies, private landowners, community groups and even local First Nations.
After Ontario’s minister of the environment approves the terms of reference, the proponents must scrutinize possible alternatives to their own plan, and then commission numerous technical and economic studies to justify the project. With the Port Lands EA, the process involved numerous opportunities for public consultation and was ultimately approved by city council, said Cindy Wilkey, a lawyer involved in the public review of Waterfront Toronto’s revitalization strategy.
As well, development sources say the city is on the hook for cleaning up the heavily polluted soil, which contains heavy metals and PCBs as well as oil and gas residues that may be leaching into the water table. Remediation costs – estimated to be in the $100-million to $150-million range – are typically the subject of intense negotiations when land changes hands, as Mr. Ford’s plan envisions.
The city may also have to adjust its planning policies to accommodate Mr. Ford’s ideas. As recently as last summer, council approved an official plan amendment (OPA) and a new zoning bylaw for the area, based on Waterfront Toronto’s revitalization strategy.
Mayor Ford voted in favour of those new planning rules, which took two years to complete.
If the proposed developments conflict with the OPA, the city could also be looking at lengthy Ontario Municipal Board challenges.
Special to The Globe and Mail, with a report from Elizabeth Church
Waterfront Toronto project would create $1.2-billion in spinoffs: consultant
If Waterfront Toronto proceeds with its $634-million plan to naturalize the mouth of the Don and create a flood protection system on the Port Lands, the city can expect to see $1.2-billion in spin-off economic activity and the creation of 8,800 job years of employment over the life of the project, according to a 2010 report prepared for the agency by a New York consulting company.
HR&A Advisors Inc., a 27-person firm specializing in real-estate advisory and economic analysis, concluded that the complex project, which involves relocating the mouth of the Don by constructing a system of valleys and promontories on the Port Lands, would unlock real estate value and reduce municipal servicing costs.
As the report stated, “When fully built out by approximately 2030, the estimated market value of new development west of the Don Roadway of $6.8-billion from 12,000 new residential units and 3.2 million square feet of commercial development would produce approximately $54.5-million in property taxes per year for the City of Toronto, and $25.5-million in new provincial and federal sales taxes. These economic benefits would not be created in the absence of the [Don Mouth Naturalization and Port Lands Flood Protection Project]improvements.”
According to its website, HR&A has worked on many high-profile international projects, including London’s transit strategy and New York City’s long-term plan. As it happens, the company’s client list also includes Westfield, the Australian shopping centre developer that’s said to have met with Councillor Doug Ford and other city officials. In 2007, HR&A did an impact study of a proposed Westfield mall in San Diego, concluding it would not undermine local businesses.