Toronto Rail Deck Development | 239.43m | 72s | LIUNA | Sweeny &Co

[Big Daddy]

^ https://globalnews.ca/news/3830064/development-group-touts-its-plan-for-toronto-rail-corridor/

There are various ways to look at this, but the long term needs of the city should take precedence. The city is growing fast and a park here is vital - there just aren't any other viable options for a large downtown park. there are plenty if condos downtown and many more coming, the thousands of downtown residents needs this park. I'm sure Mayor Tory can convince the Province and even the Feds to contribute to such an important addition to Toronto's urban landscape.

 

[jje1000]

No new content, FYI other than the ad that argues that the city doesn't have the money to create the park and that handing it over to the developers means that Toronto will get a park for free. Lots of appealing to the "taxpayers".

I don't mind development over the site, but the siteplan as-is is awful. Again, it's essentially creating another east-west wall of buildings, and the unnecessarily high park deck (excessive parking underneath) means that pedestrian visibility (people will be looking into a berm on all sides) and accessibility (via a few staircases) of the park will be low. Furthermore, the narrowness of the park means that programming will also be limited.

I would rather have fewer but taller and more stand-alone towers with a park as close to street level as possible, rather than the fortress they're proposing.

 

[3Dementia]

^ sort of agree. While the idea of "orca" condos funding a park this size is pie-in-sky (probably 2 or 3 times the cost of their business model)... there are some possibilities given "who pays".

The city can't do it alone. Given this sketch is due north of Cityplace Podiums incorporated, I could see such a park succeed with some thought to scale. Repeating Cityplace would only leave a glorified green hydro corridor park. This is such a major challenge (including funding of course), there needs to be a cityplace fix in the mix. A few taller towers to (hopefully) help pay a share for the park...... and low/medium rise built form with super-animation retail at street/park level to make this "downtown" minor miracle a destination. Not pizza pizza and a soccer school.

It's a downtown chance of a lifetime... needs some lawnmowers, events and the second best restaurant in the city etc. ;-)

 

[TJ O'Pootertoot]

There are various ways to look at this, but the long term needs of the city should take precedence. The city is growing fast and a park here is vital - there just aren't any other viable options for a large downtown park.

Ah, but take precedence over what? It sounds like you (and Joe Cressy, in the video) are assuming the long-term needs of the city should take place over property rights.
What if you happen to live downtown and I think the city's long-term needs require that your neighbourhood be turned into a park? You OK with that? The city's growing fast and all. We'll just bulldoze your house and write you a cheque.
It's vital. There aren't any other viable locations, you see.

The issue isn't whether it should be a park but how many acres and how to accomplish it given the financial and legal (ie planning) context in which we operate.

Those legal letters that flashed by on the screen there don't put the issue to rest, but they keep furthering the argument - not disputed by the city in concrete form - that ORCA owns the rights and you can't get around that issue with grand arguments about what the city needs. If the city needs it, they need to acquire the lands one way or another.

Note that Cressy doesn't dispute it in the video either. He just says "getting there first doesn't mean you have the best idea." That's not the issue at all. That may be true but buying the land (or air rights, of course) sure gives you more of a right to determine what to do or not do with the land you own than some government that dreams up an idea it can't even pay for.

From where I sit ,the ownership is the key issue. If ORCA doesn't have it, this is all a big scam. If the city doesn't have it (especially if they know ORCA does), they've been blowing smoke from day one to buy a legacy with money they don't have and to undermine the rights of people they know to be the legal owners. Soon enough we'll know which.

 

[steveintoronto]

Well this shall be interesting. I think we still have an open debate at the Rail Deck Park thread about whether or not you can stratify and then buy/sell air rights here. I have yet to go through a number of potentially relevant SCC cases posted by @steveintoronto and add my thoughts. That issue alone would potentially be a matter to go to the courts in this case. But if we are to assume that they do have those rights and they can submit the OPA, this still gets very juicy.

But I'll propose hypothetical stuff, including rights, potential court cases and lawsuits goes in the Rail Deck Park thread, and we save this one for the specifics of the proposed development. Thoughts?

I almost jumped in a couple of times on the latest string, the sublime meets the ridiculous. As best I could, by stopping the vid, I read those solicitors letters...and they're interesting more for what they don't say than do.

But since posting what I have in the Rail Deck Park string, I have some further info, already forwarded to Federal ummmm...'operatives' taking a very keen interest in all of this. They're keeping their 'ammo' dry so far, letting the 'locals' shoot themselves up until entering the fray with a legal letter to shut them all down. But they won't do it until they see what comes out of the domestic skirmish. (If they do enter the fray, it's going to cause a massive upheaval on who owns other property adjacent to the "Esplanade Corridor" as detailed in the "Tripartite Agreement".

Now that I know others have taken note, as Don has, it's worth posting it: (I've found some more references since this, but they apply to application, not case law)

A Short Treatise on Canadian Constitutional Law

...etc....

https://books.google.ca/books?id=pYc43S0cjFIC&pg=PA226&lpg=PA226&dq=Grand+Trunk+Railway+Co.+v.+City+of+Toronto+parliament+of+canada+good&source=bl&ots=wIMad3Ycg6&sig=eMhe6XMVh3AenHWGbGqsNYHoYWk&hl=en&sa=X&ved=0ahUKEwjctayjjOHWAhVi4oMKHTUwBIoQ6AEIPzAE#v=onepage&q=Grand Trunk Railway Co. v. City of Toronto parliament of canada good&f=false

I'm loathe to post what else I supplied with that to the "Federal operative" until I carefully go over it, but I did counsel to read back as well as forward from the pages supplied.

Neither I (and I'm not a solicitor, just a scholar) nor any of those who I'm supplying this to have found anything to overturn the Statutes, Acts and SCC rulings that detail this case and its standing.

I have to leave it at that for now...

 

[steveintoronto]

Originally from the Union Station thread, but reposted in the Rail Deck string, pg 33 (IIRC) as well as further quotes and details in later posts, but this is the nub of the case that neither the City (save for indirect ownership via provincial statute accorded from Parliament) or the railways now or ever has had ownership to begin with. They did for land outside of the "Esplanade Corridor", which is all detailed in later SCC cases since this reference was published, and the SCC reaffirming many times that the corridor is "for the good of Canada" (in other words, belonging to the "Dominion", the People). The SCC makes this point emphatically in a number of cases. It's the foundation of their dismissing actions by the Grand Trunk and CP against the City for (effectively) recompense for having to pay the City as a share of their 'easements' over the Corridor. (Easements *may* be granted indefinitely, it does not follow that "ownership" is conferred by that, no matter what claimants are stating)

Further to the previous post, continued digging on the matter of ownership of the USRC as that pertains to air-rights, Union Station and shed land ownership and other matters, it's difficult slogging, a lot shows, but interpreting it and not having more recent court decisions and/or precedents hinders knowing the legal status, but just found this:
[...]
...the Canadian Pacific Railway Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company by the Dominion Government of the "use for railway purposes" on and over the filled-in areas included within the lines formed by the production of the sides of the streets. At a later date the Dominion Government granted these areas to the city in trust to be used as public highways, subject to an agreement respecting the railways, known as the "Old Windmill Line Agreement," and excepting therefrom strips of land 66 feet in width between the southerly ends of the areas and the harbour, reserved as and for "an allowance for a public highway." In June, 1909, the Board of Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there. Held, Girouard and Duff, JJ. dissenting, that the Board had jurisdiction to make -such order; that the street prolongations mentioned were highways within the meaning of the "Railway Act"; that the Act of Parliament validating the agreement made in 1892 was not a "special Act" within the meaning of "The Railway Act" and did not alter the character of the agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific Railway Company, having acquired only a limited right or easement in the filled-in land, had not such a title thereto as would deprive the public of the right to pass over the same as a means of communication between the streets and the harbour.
[...]
I'll add more in quotation:

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/9855/index.do?r=AAAAAQAKUGVyc29ubmUgYgE

At a first glance, this appears more than profound! Haven't even begun to read this in detail, but it offers the City an interpretation of "bridging" the USRC for Rail Deck Park. I realize the point is relevant to more than just Union Station, but unless some of these earlier judgements were rendered moot or not-pertinent in later rulings, things are about to get very interesting as the City digs on ownership of the USRC and adjacent properties. (Edit: Note use of the term "possession" not "ownership" in reference to the railways)

Edit to Add: Can't quote due to copy-block, but the "Tripartite Agreement" (also referred to as "Esplanade Agreement") described at: https://books.google.ca/books?id=BupHAQAAMAAJ&pg=PA572&lpg=PA572&dq=Esplanade+or+Tripartite+Agreement&source=bl&ots=1q9Pyh4ENJ&sig=B_54nS2NfC0ZCshhgm5qZje8RhQ&hl=en&sa=X&ved=0ahUKEwjzrZ2slM7PAhWo34MKHRFMD7cQ6AEIKDAC#v=onepage&q=Esplanade or Tripartite Agreement&f=false

In fact "copy block" was gotten around by taking screen shots of the pages in later posts in the Rail Deck Park string. The book is a provincial repository of statutes, absolutely public domain.

Edit to Add:

Take note! Reading through the links supplied, and my preface, the term "easement" recurs many times.

An easement is a legal right to use another's land for a specific limited purpose. In other words, when someone is granted an easement, he is granted the legal right to use the property, but the legal title to the land itself remains with the owner of the land.

What is an Easement? - Real Estate Law - FreeAdvice.com
https://real-estate-law.freeadvice.com/real-estate-law/zoning/easement.htm

If one reads the "statutes" and "agreements" let alone the SCC rulings and Parliamentary statements, the railways (mostly Grand Trunk and CP were referenced in the agreements, this is prior to the great amalgamation later under CN)(legal applicability was assumed, not negated at that time) were to pay *costs* to the City for upkeep of the underlying infrastructure, including even a main trunk sewer running under parts of the "viaduct", as well as bridges and other structures.

If what appears to be the case of the agreements still being current and enforceable...there's a shid-load of grief in gondolas headed to railway headquarters . Calgary and Montreal, watch out...

No wonder the rail companies now refuse to comment on this...

Here's the source of much of the information referenced, unless linked otherwise (SCC, etc)

 

[Big Daddy]

well, it gets curiouser and curiouser.

 

[Automation Gallery]

Hmm? ORCA claims to own or have an agreement to approx. 80% of the air rights
https://globalnews.ca/video/3829865...tout-their-plan-over-mayors-for-rail-corridor

 

[raptor]

Is it really a matter of who owns what at this point? we have established that if the city needs all the air rights, they can expropriate. The real question is at what cost, and how to pay for it?

 

[Dr. Snoot]

Ah, but take precedence over what? It sounds like you (and Joe Cressy, in the video) are assuming the long-term needs of the city should take place over property rights.
What if you happen to live downtown and I think the city's long-term needs require that your neighbourhood be turned into a park? You OK with that? The city's growing fast and all. We'll just bulldoze your house and write you a cheque.

This is a silly post. Nobody lives there now so expropriating property rights, especially if they are only air rights, is not displacing anybody. Even if it were, that's how democracy works and you'd be welcome to protest the decision, which I assure you would not be made lightly. The City and all sorts of levels of government (in every country ever) regularly expropriate property for public projects. Probably every major public space you can think of involved expropriation. Dozens of properties are expropriated to build subways. The government is required to justify the expropriation and pay market value; the decision can be contested. This is not the Three Gorges Dam, so let's calm down.

 

[innsertnamehere]

Ah, but take precedence over what? It sounds like you (and Joe Cressy, in the video) are assuming the long-term needs of the city should take place over property rights.
What if you happen to live downtown and I think the city's long-term needs require that your neighbourhood be turned into a park? You OK with that? The city's growing fast and all. We'll just bulldoze your house and write you a cheque.

Yup, they can and will do exactly that. How do you think any public infrastructure gets built? The 407 East involved the expropriation of dozens of farms, many of them unhappy to give them up. Every time a road is widened the municipality goes and expropriates small strips of land to widen the street. The city has expropriated land for TTC bus garages, for parks, for almost everything. Hell, they even expropriated land for Dundas Square and 10 Dundas. It is far, far more routine than many think, and is very far from an extreme measure.

Also, important to note, but the right to private land is not enshrined in the constitution like it is south of the border. Canadians do not have an intrinsic right to private land. It is protected partially though other rights.. but the process of expropriation is much less extensive than that in the US. The biggest difference is that in Canada the government gets the land while lawsuits are worked out - while in the US the land is not handed over until the courts have finished their work.

 

[TJ O'Pootertoot]

This is a silly post. Nobody lives there now so expropriating property rights, especially if they are only air rights, is not displacing anybody. Even if it were, that's how democracy works and you'd be welcome to protest the decision, which I assure you would not be made lightly.

It's not a silly post; who lives there or doesn't is irrelevant and I understand perfectly well how expropriation works and how and why it gets done.

But the City's argument has largely been that ORCA can't even prove they have the rights in the first place. If they do have the rights, the City proposed its park knowing full well another development was coming on the site, from the actual owners, and that they were undercutting it. That means they were not honest with "taxpayers" either about what the ORCA proposal was or how much the cost would be - because their $1B+ cost excludes actually acquiring the land. So, they tabled a proposal for land they knew someone else owned and only retroactively threw out some, "well, we could always expropriate" once everyone in the public got excited about their "Central Park."

I don't take your assurances the decision "Would not be made lightly." Where's the evidence for that based on their cavalier tenor so far?

Probably every major public space you can think of involved expropriation..

I just thought of High Park, Queen's Park and Ontario Place. Were those expropriated?

The issue is not the "morality" of expropriation, it's that the city has potentially been disingenuous about the ownership situation (and, by extension, the project budget). From Day 1 they acted like the site was just a free site, up for grabs and then took umbrage at these horrible developers stepping on their toes. The reality seems to be the opposite. Seems to be.

Yup, they can and will do exactly that. How do you think any public infrastructure gets built? The 407 East involved the expropriation of dozens of farms, many of them unhappy to give them up.

Thank you for explaining that governments regularly take land for projects and for the constitutional lesson; I assure you I am more than aware of both. But per above, that's not the issue.

I think it's a great place for a park -one way or another - and I have no moral or legal or constitutional objections to expropriating especially since, as you point out, no one lives there. No old lady is losing her home and no village is being flooded. But we still live in a democracy. The issue is the narrative and what is actually going on and how the city actually plans to do this and whether they made their proposal when and how they did because they thought they could actually do it, or whether it was to undermine a legitimate planning proposal they knew was in the works.

I can understand if that doesn't matter to everyone but it does matter to me (just like the disingenuous spin about "lived experience" during the SSE consultations and the dismissal of facts in the Gardiner hybrid debate matter to me).

 

[Midtown Urbanist]

Is it really a matter of who owns what at this point? we have established that if the city needs all the air rights, they can expropriate. The real question is at what cost, and how to pay for it?

It does matter, for setting precedent.

I don't think we have seen a level of government exercise expropriation of air rights, least of all the municipality (which has dubious jurisdiction on many matters to begin with).

I fully expect Sweeny &Co to get their expropriation payday here. It is just going to simultaneous be a precedent setting case that is settled at provincial court, rather than at the OMB. Which is constitutionally and legally fascinating, for those interested in the subject.

 

[steveintoronto]

Yup, they can and will do exactly that. How do you think any public infrastructure gets built? The 407 East involved the expropriation of dozens of farms, many of them unhappy to give them up. Every time a road is widened the municipality goes and expropriates small strips of land to widen the street. The city has expropriated land for TTC bus garages, for parks, for almost everything. Hell, they even expropriated land for Dundas Square and 10 Dundas. It is far, far more routine than many think, and is very far from an extreme measure.

Also, important to note, but the right to private land is not enshrined in the constitution like it is south of the border. Canadians do not have an intrinsic right to private land. It is protected partially though other rights.. but the process of expropriation is much less extensive than that in the US. The biggest difference is that in Canada the government gets the land while lawsuits are worked out - while in the US the land is not handed over until the courts have finished their work.

I gave you a 'like' even though some points must be clarified, and this is one:

Also, important to note, but the right to private land is not enshrined in the constitution like it is south of the border.

Even though the US Con might have "enshrined rights"...the federal government has far more power than Canada, Canada being one of the loosest federations in the West.

"Eminent Domain" does not exist in Canada, at least not per-se legally. I won't go into a discussion on same here at this time, but refer to the following:

I don't think we have seen a level of government exercise expropriation of air rights, least of all the municipality (which has dubious jurisdiction on many matters to begin with).

At the municipal level, and perhaps provincial (I haven't researched) you may be right, but it certainly has at the federal level.

An example:

What are federal airport zoning regulations?
Airport zoning regulations (AZR) restrict the heights of buildings, structures and objects (including natural growth, such as trees) on regulated land. Legislation allowing for AZRs is found in section 5.4 of the Aeronautics Act.

Transport Canada may enact AZR in order to:

• protect aircraft from hazards (e.g., bird strikes and electronic signal interference)
• protect existing airport operations (e.g., airspace management and emergency response )
• ensure that future development near an airport stays compatible with the safe operation of aircraft and of the airport itself

Lands within the airport boundary are under the control of the airport operator and do not require AZR. Since Transport Canada certification requirements normally extend beyond airport boundaries, AZR apply to surrounding off-airport land.
[...]

https://www.tc.gc.ca › Home › Regions › Ontario Region › Air Transportation - Ontario

Similar powers over 'air rights' exist over railway corridors, *no matter the claimed ownership*. In the case of the USRC (The "Esplanade Corridor" in statutes and acts), the land remains the realm of the "Dominion of Canada". But that's another matter...

 

[TJ O'Pootertoot]

I think the important takeaway is one party has a great plan for a park and another party says it's their "land" and they're going to develop a chunk and build a very similar, but smaller park...

...but both have to answer to larger legal issues that have yet to be resolved or addressed, irrespective of the planning process, which is chugging along on its own steam. Both parties should show some humility and deference in the face of that.