[crs1026]

Apologies - forgot about the paywall

- Paul

To get the rail-deck park, Toronto needs to work with developers

MARCUS GEE

The Globe and Mail

Published Friday, Sep. 16, 2016 5:30PM EDT


Everyone agrees that building a big new park over the rail lands in downtown Toronto is an inspired idea. The question is how to pay for it.

City hall is considering a change to the city’s official plan that would designate the area as public space. That would prevent developers from building condos, malls or office towers there. The trouble is that the city would be stuck with the vast bill – at least $1.05-billion, according to the city’s preliminary estimate – to build a park on an enormous roof, or deck, above the rail lines. Why not work with developers instead? Why not let them build on the site but insist they set aside space for public squares, playgrounds and parkland?

As it happens, one group of developers has approached the city with just such a plan. Led by Craft Development Corp., they have in mind an ambitious mixed-use project that would include residential, office and retail buildings as well as six to eight acres of park and public space. They say they have commissioned engineering studies, hired an architect to produce drawings and approached the city to lay out their plans, although they are not ready to unveil them publicly yet.

Jennifer Keesmaat, the city’s chief planner says, she is not interested. She knows about the proposal but has no confirmation that the developers have secured the necessary air rights over the tracks. Even if they had, she told me, no project could proceed without the city’s say-so. If the developers challenge the city through legal channels on its plan for a “rail-deck park,” as it has been called since Mayor John Tory announced it last month, “I could not be more confident that they would not be successful.” At the Ontario Municipal Board, which referees development disputes, “this will be a no brainer.”

She argues that with space for new parks in downtown vanishingly scarce, decking over the rail lands is Toronto’s last chance to create a grand, signature park in the heart of the city.

As condo towers sprout left and right, the number of people living downtown is expected to double over the next quarter century, reaching almost half a million. Providing more space for all those people to stroll and play and walk their dogs only makes sense.

The 21 acres the park would cover – the equivalent of four large city blocks – is the minimum Toronto needs for its soaring downtown population, Ms. Keesmaat says. “Why would we make it even smaller by putting condos on it? That is flabbergasting in its small-mindedness.”

So instead of working with developers to create the park, the city intends to soak them for the cost. A city report released on Thursday says that “staff will identify options to enhance growth-oriented revenues so that local development activity can fund a significant portion of the rail-deck park project.” In other words, fees and charges developers pay when they put up a building would rise, inevitably affecting the cost of housing in a city where it is already painfully expensive. City hall would also pass the hat to “corporate sponsors, foundations and other philanthropic organizations.”

These are less funding plans than funding hopes. With so many pressing needs, from transit to housing, it seems rash to add another project to the long list that must be paid for … somehow.

It would be wiser to work with developers to get this project done. Private interests can often help create great public spaces.

At New York’s Hudson Yards, the vast real estate development taking shape on the west side of Manhattan, the developers are putting in more than five acres of gardens and plazas, linking up to the popular High Line park. Only this week, they unveiled plans for a centrepiece. Called Vessel, it will consist of “154 intricately interconnecting flights of stairs” that visitors can climb and explore.

One of the Hudson Yards developers, Oxford Properties, once proposed a rail-deck park of its own as part of a plan to build a Toronto casino. City council voted down the casino, but Oxford says it now wants to build a bigger convention centre in the area. That project could include green space over the rail yards that would dovetail with the city’s park plans, Oxford chief executive Blake Hutcheson says.

On Toronto’s developing waterfront, new condos and office buildings are already mixed in with creative public spaces such as Sherbourne Common, Sugar Beach and the wave decks. The virtue of that mix is that, with lots of people working and living nearby, the spaces are sure to be active and vital. While the rail-deck park could never hope to equal the leafy expanses of Central Park, it might mimic the vitality of busy urban spaces like Rockefeller Centre.

It is great that Mr. Tory and Ms. Keesmaat are seizing this chance to create a dramatic new public space in a downtown that sorely needs it. They are right to think big. But they should open their minds to letting developers help the vision take form.

 

[muller877]

From the Globe article

Jennifer Keesmaat, the city’s chief planner says, she is not interested. She knows about the proposal but has no confirmation that the developers have secured the necessary air rights over the tracks. Even if they had, she told me, no project could proceed without the city’s say-so. If the developers challenge the city through legal channels on its plan for a “rail-deck park,” as it has been called since Mayor John Tory announced it last month, “I could not be more confident that they would not be successful.” At the Ontario Municipal Board, which referees development disputes, “this will be a no brainer.”

I often wonder about Jennifer Keesmaat. Does she know what she is talking about? The city cannot slap a change in the by-laws to stop a development nor to drive down the value of the land to expropriate it for cheaper.

The city over the past 30 years has encouraged the conversion of former industrial/rail land around this site and permitted dense development. Look at Cityplace, South Core and the future growth at the Globe and Mail site. The owners of the land will show these to the OMB as precedents and the OMB will permit similar development on this site.

This is classic OMB stuff...the Chief Planner should be there to rationally discuss things and this role should not be a popularity contest.

 

[steveintoronto]

Apologies - forgot about the paywall

- Paul

That article wasn't originally paywalled. lol...I wonder if they decided to make it so due to linking it here some weeks back? It was well-discussed and generally agreed with at the time. Keesmaat comes off looking hysteric. Notice the dialog from city hall has gone awfully quiet lately? Reality has a habit of doing that...

 

[Euphoria]

The city can prevent development and keep development costs down along the corridor through zoning, period. That's how the province was able to create the Greenbelt, not through land acquisition but zoning. If it isn't zoned for development then it has no private development value. The city and province should work in concert to protect this last bastion of open space in the core. If there is any development at all, it should be strictly controlled and contained.

 

[steveintoronto]

The city can prevent development and keep development costs down along the corridor through zoning, period.

"Along" (in terms of beside) the corridor, yes, But not *in or on* the corridor. They think they can, but they don't have the jurisdiction to do it over federally regulated areas. *IF* that corridor ceases to be used under federal terms as defined under various acts (Railway and Transportation Act are two) then it's possible that land use zoning can be affected by the City.

That's how the province was able to create the Greenbelt, not through land acquisition but zoning.

Actually it was a provincial act:

The Greenbelt Act, 2005
Email this page

The Greenbelt Act, 2005 enables the creation of a Greenbelt Plan to protect about 1.8 million acres of environmentally sensitive and agricultural land in the Golden Horseshoe from urban development and sprawl. It includes and builds on about 800,000 acres of land within the Niagara Escarpment Plan and the Oak Ridges Moraine Conservation Plan.

The legislation authorizes the government to designate a Greenbelt Area and establish a Greenbelt Plan. It sets out the main elements and objectives for the Greenbelt, which are addressed in the Plan. It also requires planning decisions to conform to the Greenbelt Plan.

Pursuant to the Greenbelt Act, 2005, the Greenbelt Council was appointed by the minister in June 2005. The council will provide advice on the administration of the Greenbelt and will guide the government on such matters as the implementation of the Greenbelt Plan, performance measures and the 10-year review of the plan.
[...]

http://www.mah.gov.on.ca/Page195.aspx

 

[Euphoria]

Right, essentially The Greenbelt Act enshrines the zoning of that swath of land. Even if the rail corridor is federally controlled, any development along it that isn't rail-related would still be subject to city plans. The Province could, through legislation, protect the city's interests along that corridor from the likes of the OMB in the same way that The Greenbelt Act does. Some legislation/agreement at the federal level may be necessary. I don't pretend to know the answer to that.

 

[salsa]

Air rights deal could complicate plan to build park over downtown rail corridor

Two Toronto law firms are confirming the existence of an agreement to transfer the rights to the air space over the rail corridor to a GTA developer with dreams of building condominiums — in the same space being eyed by the city and Mayor John Tory for a large public park. That confirmation comes just ahead of a debate at council Wednesday over plans for the so called “Rail Deck Park,” which may now be complicated by the developers’ interest.

https://www.thestar.com/news/gta/20...o-build-park-over-downtown-rail-corridor.html

 

[steveintoronto]

Air rights deal could complicate plan to build park over downtown rail corridor

Excellent heads up, Salsa. I've been using Google News to look for leads on this, just checked half an hour ago, no hits, and the TorStar does themselves no favours by featuring maybe eight stories or so on their website now for iPad imbeciles.

The story is still not definitive, but at least it's now being realized that Tory, Keesmaat, Cressy et al have not being doing their homework. Not even close...
[A letter sent from CN Rail’s and TTR’s lawyer at WeirFoulds LLP confirms the agreement and says that same confirmation was provided directly from the rail companies to city planning staff in September 2015 — more than a year before rail deck park was proposed publicly.]

Although I've yet to read a direct legal opinion on this case, it's still my contention that any of the now divulged agreements are conditional, have to be, since the jurisdiction of that corridor lies with the Feds, and will continue to be as long as that is an active national rail corridor.

I'm sure there's a lot more dirty shoes to drop on this one.

CN/TTR - if they still hold title - may be quite willing to work with the City in preference to private developers. However, you can be sure that they will cite the developers' proposals when they present their asking price.

Yeah, I can't believe that the City (as represented by Tory, Keesmaat, Councillors et al) is this bumblingly stupid....lol...but maybe they are...but one hopes that it is a ruse to better their options at getting the best deal.

However, the (ostensible) present holders of the air-rights might also be playing for best price.

But I still wonder...in a federally regulated rail corridor, do even the railway companies own those rights? The Feds might yet step in and declare the *Crown* owns those rights, and it's only through the grace of federal statutes that the railways have the right of ownership for the surface of the corridor.

If, for instance, the TTC wished to push a subway under that land, the railways, other than on safety or contesting conflict of their own operations, could not stop it. If the City wished to put a bridge over that corridor, same applies.

There's something very peculiar being missed in this whole affair...

 

[AlvinofDiaspar]

But I still wonder...in a federally regulated rail corridor, do even the railway companies own those rights? The Feds might yet step in and declare the *Crown* owns those rights, and it's only through the grace of federal statutes that the railways have the right of ownership for the surface of the corridor.

If, for instance, the TTC wished to push a subway under that land, the railways, other than on safety or contesting conflict of their own operations, could not stop it. If the City wished to put a bridge over that corridor, same applies.

There's something very peculiar being missed in this whole affair...

Also, it would be kind of weird for TTR to argue the city proposing a park on top is intruding into railway uses when you turn around and sell it for condo developments. How is that not a more permanent, more intrusive use of the corridor?

AoD

 

[steveintoronto]

Also, it would be kind of weird for TTR to argue the city proposing a park on top is intruding into railway uses when you turn around and sell it for condo developments. How is that not a more permanent, more intrusive use of the corridor?

AoD

Yeah...and to take this to the abstract extreme...to what height do the air-rights go? When the railway (CP explicitly) was accorded land at the time of confederation, it was contingent on a number of conditions. This has come up in a number of court cases, some at the Supreme Court of Upper Canada, years ago, and of Canada more recently. I'm not in the position to cite reference, but I'm sure someone is. I get a huge sixth-sense that if City Hall has got this so wrong so far, (and apparently they have) then what other elephant in the trench have they missed? I can't believe the Feds are OK with all of this, nothing screams "jurisdiction" like the Feds citing their own statutes.

Perhaps legal counsel at City Hall should send a memo to the Mayor's Office advising that they retain expert counsel on this before getting in any deeper?

Lol...perhaps they already have, and the memo wasn't read?

Edit to Add: Re-reading what I wrote:

If, for instance, the TTC wished to push a subway under that land, the railways, other than on safety or contesting conflict of their own operations, could not stop it. If the City wished to put a bridge over that corridor, same applies.

There's something very peculiar being missed in this whole affair...

And that, plus the scenario Alvin posits, offers a possible solution:

It *is* determined to not only be Fed jurisdiction (which evidence so far indicates) and further to that, the Feds *do* claim it as Crown property, but then interpret their own legislation that will allow them to cede it (in some form, whole or in part) with conditions, to the City. It might take a clause being inserted into the Transportation or related Act, but that's up for review anyway.

So the Feds agree to this in principle, get a court order withholding any further action until the act is re-written.

I'll see what examples of this I can cite. Will dig later, but any help from readers or Urban Toronto on this most appreciated. Quite often digging is only as effective as having the right tag.

 

[steveintoronto]

Googling can be pot luck, usually down to the search tag. How's this for serendipity? I'm going to email this lawyer and suggest he write a piece for TorStar, or perhaps the editors at UrbanToronto might wish for a piece appearing here on this subject?

Bob Aaron bob@aaron.ca
March 26, 2005
Who owns air above our homes?
Reader requests local no-fly zone

Property rights are lower than ever

Noisy neighbours and noisy neighbourhoods continue to be a matter of considerable concern to Toronto-area homeowners.

One Star reader recently emailed me with an unusual type of noise grievance. Instead of complaining about frisky neighbours, he was agitated about the noise from aircraft flying over his house.

"Can I enforce a no-flight zone over my house?" he asked. No doubt he had in mind a well-known principle of land ownership, which originated in the Middle Ages: Whoever owns the land also owns whatever is above and below it.

Apparently the reader lives under the flight path to a runway at Pearson airport, and is super-sensitive to the noise of aircraft thundering over his roof all day, every day.

If he had lived in Europe in the 13th century, he would have had no trouble enforcing a no-flight zone over his house (not just because there were no airplanes at the time). The law was that a landowner owned everything "to the heavens" and "to the depths."

Times have changed, as courts and legislatures have whittled away at the rights that once accompanied land ownership.

A huge swath of land surrounding the Pearson runways is governed by airport zoning regulations, which are actually registered on the property titles. They provide written notice to purchasers that their land is under or near a flight path, and that the government has assigned air rights over the properties to the airlines and airport operators.

And even in the absence of zoning rules, the courts have reduced the rights of property owners from the heavens to something a little closer to the ground.

Back in the 1980s, Alberta Power Ltd. constructed a power line along a municipal roadway adjacent to Kenneth Didow's farm. The cross-arms of the transmission lines and the wires attached to them extended about six feet over the Didow property, interfering with spraying, seeding and other farm activities.

The Alberta Court of Appeal was asked to declare the cross-arms a trespass on the Didow land.

In a well-reasoned and researched judgment, the court reviewed the law of air rights in the United Kingdom, Canada and the United States, going back to 1610.

Historically, anything overhanging a property whether it was trees, signs, telephone wires or even an adjacent building was considered by the courts to be either a trespass or a nuisance.

Gradually, however, the courts began to acknowledge the realities of air travel.

In Britain, back in 1977, Lord Bernstein of Leigh sued a company that flew over his lands to take aerial photographs. The court denied his claim and proposed a balance between the rights of the landowner and the public air space. Beyond the height necessary for the landowner's use, the court said the air space becomes public domain.

This rule was adopted in the Didow case, and the cross-arms were ruled to be a trespass because they interfered with the use and enjoyment of his land.

Air-space rights are not restricted to the aviation industry.

Several years ago, a client of mine was approached by a Toronto developer who wanted to build a tall condominium next door to her house. A huge crane was necessary to construct the building, and it would have to rotate above her house. As well, the developer wanted to insert steel tieback rods under the house, in order to support the foundations during the excavation.

Without my client's co-operation, construction costs would have been significantly higher, and we negotiated what I thought was a generous agreement.

Subsurface mineral rights are another story. Historically, when the Crown transferred land to original Canadian settlers, it reserved for itself all mines and minerals below the surface. If there's gold under your house, you don't own it.

There are separate rules for gas and oil, which can migrate back and forth below ground. Simply stated, the rule is that you don't own the gas or oil under your property until you bring it to the surface.

As for the Star reader who wants to stop planes flying over his house, he's out of luck.

http://www.aaron.ca/columns/2005-03-26.htm

Bob Aaron is a Toronto real estate lawyer. He can be reached by e-mail at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818. Visit http://www.aaron.ca

Citations at link supplied, unable to attach them as a file.

 

[DonValleyRainbow]

I highly doubt that TTR/CN would be laying claim to these rights if they didn't own them, at least in majority. I think best case scenario for this consortium, maybe they own a piece, or secured some agreement-in-principle.

Air rights deal could complicate plan to build park over downtown rail corridor



https://www.thestar.com/news/gta/20...o-build-park-over-downtown-rail-corridor.html

While the letters end speculation than an agreement had been made, after the Star first reported the developers’ claims that had been circulating at city hall, it does not say the property has already changed hands.

As I suspected: the deal hasn't been solidified.

If I were a betting man, if the city doesn't compromise here, I'd put my chips on this going to the OMB and/or divisional court. No way TTR/CN and Craft are going to let the city wipe away the potential money in this deal, not without getting something.

 

[steveintoronto]

I'm finding this more intriguing than ever in terms of who actually owns and/or administrates (with right to lease them) the air-rights. US legal precedents may or may not be viable here, so did some digging on Gare Centrale:

[...]
The new station plan allowed for the development of air-rights, similar to Grand Central Terminal and Penn Station, both in New York City. The new Central Station would be situated in the block bounded by De la Gauchetière Street to the south, Mansfield Street to the west, Cathcart Street to the north and University Street to the east.

Central Station was designed by John Schofield, architect-in-chief of CNR. Construction started in 1926, but was halted in 1930 as a result of the Great Depression. Construction resumed in 1939, the economy having improved. The new station finally opened on July 14, 1943, as the first of a series of large-scale urban redevelopment projects undertaken by CNR and the federal government in Downtown Montreal. But the Central Station that came out was a more modest central station with 20 tracks (16 of which had platforms).

The opening of a 'central' station was part of a consolidation project undertaken by CNR since 1929 with the enactment of the Canadian National Montreal Terminals Act, 1929 by Parliament; this saw the closure of former temporary stations operated by CNR predecessors Grand Trunk (Bonaventure Station) and Canadian Northern. [...]

http://www.revolvy.com/main/index.php?s=Gare Centrale (Montreal)&item_type=topic

This article is well written and obviously well-researched, but of course, not legally definitive. But note! "Canadian National Montreal Terminals Act, 1929 by Parliament".

Very interesting....got to research that later.

Here's another article from TorStar:

There’s money in the air, especially above Union Station’s train tracks.

In a growing metropolis like Toronto, every speck of space comes with a dollar sign, from the ground beneath our feet to the air above our heads.

And increasingly, cities around the world are using that “air” — or more specifically, the rights to it — to transform skylines. Should Toronto be doing the same?

Air rights are used “to either preserve a historical building of a lower density, or the character of a neighbourhood,” said David Lieberman, an associate professor at the University of Toronto who teaches architecture and urban design.

Say, for example, a historic theatre house needs funds. If the plot of land it is located on allows for higher density/more storeys than the theatre’s status quo, the rights to that “air” can be sold to another property. The density of that property can then be increased.

Air rights can also help facilitate massive development projects, like Hudson Yards, the so-called “floating city” being built above an active train yard in New York. It’s the largest private development in U.S. history, and includes a 99-year lease with the Metropolitan Transportation Authority to the air rights above the tracks.

As Lieberman noted, the tracks that divide Toronto’s downtown, as well as the rail yards in the city’s outskirts, are cumbersome to navigate and build around. Selling air rights could offer a way to better integrate these spaces: Just imagine a new neighbourhood springing up above the tracks leading to and from Union Station.

For David Amborski, director of Ryerson University’s Centre for Urban Research and Land Development, transit air rights hold lots of potential.

“You could lease air rights above significant transit sites and transit locations, and that’d be a way to capture revenue to fund transit investment,” he said, adding he doesn’t know if building above Union Station’s train tracks is technically feasible.

Related:

More Big Ideas

Interactive: explore big ideas posed by experts

As for air rights in general, Amborski said they’re an idea Toronto has barely explored, and that comes with some risk.

“They have to be used appropriately and studied very carefully,” he said.

For example, a poorly planned air rights development could lead to conflict between lower infrastructure, like a train station, and upper infrastructure, like an apartment building or school. When the lower infrastructure was originally designed, engineers may not have considered that something might be built on top of it somewhere down the line.

Lieberman said if Toronto properly co-ordinates air rights, it can lead to much smarter urban planning based on neighbourhoods as a whole.

“So much of our zoning here and in most jurisdictions is done on an individual property-by-property basis, and doesn’t necessarily make for an intelligent texture of the city,” he said.

Ultimately, Lieberman said, air rights should be part of a conversation about how Toronto becomes a more sustainable and enjoyable place to live.

“But you have to accept a different density of city, and is Toronto ready for that? Maybe not yet,” he said, citing the backlash against the Mirvish Towers proposal for three 80-plus-storey buildings. City council has agreed to convene a panel on the future of the proposal.

Lieberman noted New York is one of the most sustainable cities in the world because of how it consolidates infrastructure — transportation, water, power and so forth. Part of that process is the city’s longstanding history with air rights, and how residents navigate competing demands to maintain neighbourhood character and get the most out of every inch of space.

“The dispersed building of a city, such as we have — not only in the downtown core, but in Toronto as a whole — has been disastrous,” he said.

https://www.thestar.com/news/gta/2014/04/02/big_idea_use_air_rights_to_build_a_better_city.html

 

[steveintoronto]

This appears to have such profound implications that I defer from commenting any further at this time. Act too long to post in full, please access link at bottom for the entirety. Will read intently and comment more later:

Canadian National Montreal Terminals Act, 1929
S.C. 1929, c. 12

Assented to 1929-06-14

An Act respecting the Construction by the Canadian National Railway Company of certain terminal facilities with grade separation and other works at and in the vicinity of the City of Montreal

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: —

Marginal note:Short title
Canadian National Montreal Terminals Act, 1929.


Marginal note
Power to construct and complete works described in schedule
2 The Governor in Council may provide for the construction and completion by the Canadian National Railway Company (hereinafter called “the Company”) of terminal stations and offices, local stations, station grounds, yards, tracks, terminal facilities, power houses, pipes, wires and conduits for any purpose, bridges, viaducts, tunnels, subways, branch and connecting lines and tracks, buildings and structures of every description and for any purpose, and improvements, works, plant, apparatus and appliances for the movement, handling or convenient accommodation of every kind of traffic, also street and highway diversions and widenings, new streets and highways, subway and overhead streets, and also approaches, lanes, alleyways, and other means of passage, with the right to acquire or to take under the provisions of section nine of this Act or otherwise lands and interests in lands for all such purposes, all on the Island of Montreal in the Province of Quebec, or on the mainland adjacent thereto, as shown generally on the plan or plans thereof to be from time to time approved by the Governor in Council under the provisions of section seven of this Act; the whole being hereinafter referred to as the “said works”, and a short description whereof for the information of Parliament but not intended to be exhaustive, being set out in the schedule hereto.

[...continues at length...]
http://laws-lois.justice.gc.ca/eng/acts/c-19.1/page-1.html

Edit to Add:
A very quick thought, not able to cite precedent at this time, but have seen reference to this in Cdn legislation and legal practice:

The Feds might be amenable to *leasing* the air-rights (with the co-operation of TTR and CN, who obviously have priority of use if need be) to the City of Toronto. That's based on the premise of it being established that private ownership of those air-rights is at the grace of the Crown via the Feds to begin with. Just a thought, I'll research that later.

Second Edit: Union Station was also built by an Act of Parliament. Which makes me question whether the City of Toronto just owns the building, but not the land or air rights. Will dig on that later, must run.

 

[AlvinofDiaspar]

And more from the Globe, referring to the Craft proposal:

http://www.theglobeandmail.com/news...s-for-toronto-rail-deck-park/article32252388/

To address this claim, Mr. Griffis instructed his lawyers to send The Globe two short letters provided to city planners and dated Sept. 15. One is from a lawyer for Craft, the other from a lawyer for Canadian National Railway Co. and the Toronto Terminals Railway Co. Ltd., the company co-owned by CN and Canadian Pacific Railway Ltd. that controls the tracks around Union Station.

The letters say that Craft entered into a “binding and enforceable” agreement of purchase and sale in 2013 for “air space above the rail, south of Front Street West, between Bathurst Street and Blue Jays Way.”

The letters do not say if the deal has closed. The letters also do not say whether the deal is conditional on the land actually being zoned for development or for a certain density – a common clause in such deals. Mr. Griffis would not reveal any other details on Tuesday. Mr. Sweeny said the deal had not yet closed.
...

According to its website, Craft has not attempted a project approaching this magnitude in the past: It has only nine smaller developments in Toronto, but has built plazas and retail developments in smaller cities around Southern Ontario, including Kitchener and Keswick.

Sounds like someone tried to make an end run.

AoD