I'm also interested to see if they try to challenge the escarpment limit with this application. I am leaning towards no, for a few reasons.
- On the DRP agenda, this project is listed as being at the Site Plan Approval stage, which indicates that they're moving forward with the current zoning, which wouldn't allow for 38 storeys. In the past, Vrancor has been able to attain Minor Variances for variances that really aren't minor, though, including variances for 20/22 George, so who knows?
- I have never seen Vrancor take a project to LPAT, and my assumption is that they, for some reason or another, have a good relationship with the City.
- Vrancor, like pretty much any developer, doesn't care about height, but cares about GFA. If going above and beyond the height limit poses a big challenge and a big expense (it does) and if the City will work to preserve their godawful sacred cow height limit by conceding on floorplate size, tower separation, podium size, and everything in between (they absolutely will and do), any developer is going to go for the path of least resistance.
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Perhaps unsurprisingly, I disagree with the notion that the escarpment height limit is just a guideline and that the City will seriously consider attempts to build above and beyond it. I have a few reasons for holding this viewpoint.
- The height limit is not just including in the Tall Building Guidelines, but written into the Downtown Secondary Plan which is implemented through the Official Plan and is therefore an explicit policy that planning staff can point to and fall back on when reviewing an application.
- When the Downtown Secondary Plan was passed, it included pre-zoning of the downtown for the heights that the City wants. This is great if you're a supporter of the DSP (specifically, if you support the built form that it results in) and mostly care about quantity of construction. I would assert that this can be bad if you place more value on evaluating individual projects on their planning and architectural merits - and that the way it has been implemented in our downtown is not positive for the overall outcome of development within the downtown.
- The pre-zoning of the downtown, which in my opinion prioritizes subpar built form of development, also acts an indisputable deterrent to challenging the height limit. For the vast vast majority of developers who focus on GFA and who aren't particularly interested in how that GFA is achieved via the built form, attaining the necessary GFA for a project to be buildable through methods that don't require rezoning (like massive floorplates, smaller separation distances, gargantuan podiums) is much more attractive to methods that would require rezoning (building towers that are taller than 30 storeys but sticking to 750 square metre floorplates, meeting 25 metre separation distances, etc) because it's a hell of a lot faster and cheaper and it's more of a sure bet.
- I have listened to proponents of the height limit try to assuage concerns about the limit by stating the City will consider proposals above the limit for years now, and in that time I have seen no evidence whatsoever that they will do such a thing with any serious intent.
Legally, the City has to consider any rezoning or OPA application. They have to cite their policies and the provincial policies as to why or why not a project should be approved. I believe that almost anyone who has read multiple staff reports on certain applications can deduce that these policies are broad (which is not necessarily a bad thing), that they can be read in many different ways, and that they are often applied in different ways and often applied inconsistently — we have seen this a lot with the midrises that have been proposed in the North End over the years!
And there are policies on the books that specifically address whether or not the City thinks that buildings over the height of the escarpment are appropriate - and those policies read quite clearly that the City does not think they are. It is absolutely possible in theory for some proponent to bring an above-limit proposal to the City and for the City to determine that it loves such a proposal and either not cite the height limit policy in any recommendation or downplay it by cobbling together other policies and saying that they feel the height is warranted.
I cannot deny the possibility of that situation. I absolutely will posit that such a situation is *phenomenally* unlikely. The City has been crystal clear that they are going to defend the escarpment height limit with both their words and their actions.
And even in this fairy tale case of the City really liking a proposal above the limit, let's not forget about the role that the Ontario Lands Tribunal (nee LPAT, nee OMB) plays. If there were someone opposed to this application, and if they brought it to the OLT, they absolutely can and absolutely will point to the policies on the book that state such height is inappropriate in Hamilton as a reason that such an approval should be overturned.
I know that if I was a developer, the risk of investing hundreds of thousands of dollars and likely years of time in proposing a building above the height limit would almost certainly not be worth it. Especially considering I can meet my necessary GFA through proposing a shitty building that doesn't challenge the City's star development policy.
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I am doubtful, for all of the above reasons that the height limit will be seriously challenged anytime soon. I'm neither a lawyer nor a planner so I can't speak for whether the OLT would side with a project of greater height. There certainly is built precedent with Landmark, policy precedent with Television City and Royal Connaught, and potentially future precedent with the Pier 8 tower, and I would agree with and dearly hope that the Tribunal finds there is good planning justification for taller towers, but I do not see the risk outweighing the reward of testing the waters anytime soon.
An onslaught of development is likely coming, but all signs so far point to future projects being more of the sub-par stuff we've seen to date, and all signs point to the City continuing to completely squander their opportunity to try and shape developments for the better, rather than just the shorter.
We'll see what the coming years bring, I suppose. I don't have the hopes that I once did.
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