The appeal to the OMB is not with respect to the project itself, but related to the if the city acted properly in the application an Interim Control By-Law to freeze development for a year. It is basically a question of whether or not the city is acting in good faith in the application of the ICBL or if it was implemented as a delay tactic to avoid dealing with the application - if the OMB determines in their view that is the situation (and Rio-can may have a pretty strong case) then the ICBL will be overturned and the city will actually have to deal with the application (meaning the councilors, community, planning department etc will have an opportunity to work through the planning process to deal with the issues Sunnyray & AoD have noted.... unless the city continues to delay beyond the prescribed timelines in the Planning Act, at which time Rio-Can could again appeal to the OMB due to a non-decision from the city).
From a community planning perspective I would certainly share many concerns raise regarding the proposed tenant - however the planning process focuses on land-use rather than tenants and cannot discriminate against specific tenants or discriminate against specific people. Furthermore the OMB appeal is not to circumvent council or the community on the application itself, but rather that any landowner affected by the passing of an ICBL has 60 days to launch an appeal to the OMB if they believe that the ICBL was inappropriately applied. ICBLs have also under the Municipal Act been appealed to the courts.
ICBLs have in the past been overturned by the OMB or by the courts if they were initially passed by a municipality in bad faith after finding that it was unfair and discriminatory and represented an abuse of process. So the question in this specific situation is - was the ICBL passed in good faith with strong planning rationale to study the Bathurst corridor and determine appropriate future planning? or was the ICBL passed in bad faith as a reaction with the intent to delay and discriminate specifically against the Rio-Can application?
People may not like the appeal to the OMB, but Rio-Can may have a case in this situation - should be interesting to watch.
Well,... the Friends of Kensington folks seems to think otherwise,.... hence their crowdfunding,...
"What happens next?"
"RioCan has just appealed the by-law to the Ontario Municipal Board (OMB), which means their entire proposal could be decided at an OMB hearing in the next four or five months. RioCan is challenging the ICBL, saying it is inappropriate. They’re also asking the OMB to allow re-zoning of 420 Bathurst St., which would enable a 65’ high, 129,000 sq ft shopping mall, anchored by a suburban-sized Walmart to be built in close proximity to Kensington Market and directly adjacent to dozens of homes. Did we mention that the development would include a 300-car parking lot and a large four-bay loading dock?"
https://projexity.com/projects/view/Save-Kensington-Market-from-Big-Box/18
https://www.facebook.com/FriendsofKensingtonMarket
The Interim Control By-Law that city council passed 36-1 without any debate on the last day council sat before their summer break,... which they are still on, even though the other school-kids are back in class already! ;P
"The by-law was passed without debate or discussion at Friday’s city council meeting and restricts new building developments on both sides of Bathurst Street from Dupont to Queen streets for one year while the city prepares a land-use study. This includes a controversial proposal from RioCan Real Estate Investment Trust for a three-story retail complex with a Wal-Mart store."
"Councillor Mike Layton represents the ward and brought forward the by-law to give the city time to research what kind of effect big-box stores might have on the area. While he said the Wal-Mart proposal played a role, he added that the uncertainty surrounding some lots, such as the site of Honest Ed’s, which was recently put up for sale, spurred him to investigate what the future of Bathurst Street might look like."
http://www.theglobeandmail.com/news/toronto/wal-mart-put-on-hold-for-kensington/article13331100/
BTW,... AlvinOfDiaspar,.... if this project gets more windows,... then there will just be more windows for opponents to break.