Several years ago, a Canadian mining company was brought to my attention. This corporation purportedly had holdings that included some of the richest rare earth minerals (the elements required for the manufacture of eletric vehicle batteries) deposits in North America.

I was intrigued, particularly given our federal government’s policy underwriting the shift to electric vehicles.

So, after completing proper due diligence to confirm that the mineral assays bore out their claims, I purchased a sizeable quantity of shares in the company.

Now, for reasons I will not go into here, that investment did not pan out and I took some losses. But, that is the risk one runs in any business undertaking.

Fact is, even armed with thorough research and information, on occasion something will go south and the smart business person simply cuts their losses and moves on.

This is normal, typical and accepted practice in businesses large and small across virtually every industry sector — well, all except one.

No corporate executive or business owner makes an investment decision partially or wholly predicated on the belief that their return on investment (profit) will be safeguarded, or increased, by completing a government application to have that elected body change a few laws or grant a few exemptions for them.

On the face of it, that is a ludicrous premise — except for one industry.

In fact, for those in this industry it is normal and common practice to make such an application with the expectation that the government will, indeed, change, alter or grant exemptions to the prevailing legal framework.

Moreover, this industry’s expectation must be considered “reasonable,” since every level of government in this province accepts and endorses the practice.

The industry?

Real estate development — and, for both infill and new development, the applications abound.

To get some idea of what these applications might look like, let’s examine a few.

In Virgil, at 1537 Concession 6 Rd., 448 Line 2 Rd. and unaddressed lands on the northside of Line 2 Road, we have the Konik Estates Phase 2 application.

The developer applied for the property(s) to be rezoned, from Virgil community zoning district — residential development (RD) for detached single-family residential to residential (R2) with site-specific provisions and residential multiple with site-specific provisions.

So what are these “site-specific provisions” — modifications to existing bylaw/planning requirements — you ask?

In this case, they include reduced lot frontages, reduced lot size, reduced setbacks (front yard, side yard, accessory building, swimming pool, etc.), increased garage door sizes, increased driveway width and special provisions for porches, patios and steps to encroach into the setbacks.

In short, a fairly lengthy set of provisions specifically designed to increase the yield (dwellings per acre) on the property(s), thereby positively impacting the developer’s return on investment.

Moving to Old Town, where the spectre of an apartment building at 223-227 Mary St. has raised its nasty head once again, a developer is applying for rezoning from an Old Town community zoning district — established residential (ER) zone to an Old Town community zoning district — residential multiple (RM1) site-specific zone.

While this revised design is significantly improved over the initial 2023 overture, since the focus of this week’s column is not to comment on design, this columnist will refrain from doing so — except to say it is a good design in the wrong place, at the northwest anchor of Old Town’s established residential district, and every single abutting property will suffer from a loss of privacy and from the shadow cast by the proposed building.

So, what does the re-zoning mean?

In real terms vis-à-vis the application, it allows for a building height of 12 metres as opposed to the current maximum height of 10 metres (32.81 feet).

But the developer has, in their application, asked for a site-specific provision allowing the height of the building to be 14 metres (45.93 feet), not including the parapets and, I assume, rooftop mechanical enclosures.

Furthermore, the town’s Official Plan specifies that medium density (RM1) residential developments will not exceed a net density of 30 units per hectare, however, the application asks for a net density of 99.25 units per hectare … an ask of more than 107 per cent in excess of prevailing legislation.   

Now, we’ll head back out to Virgil where another application for re-zoning and site-specific provisions has been filed relative to part of the lands at 1570 Niagara Stone Rd. (Cornerstone Church).

In 2023, the lands were rezoned to Virgil community zoning district — village commercial holding zone and Virgil community zoning district — residential holding zone in order to facilitate the severance of the property.

The new application is for rezoning to Virgil community zoning district — residential multiple (RM1) with site-specific provisions to allow the developer to construct a condominium comprised of a row of townhouses and an apartment building (the latter not a permitted use in the RM1 zoning).

And that is the first ask, for a site-specific RM1 zone that allows for the construction of the apartment — something normally allowed only in RM2.

And the application continues with site-specific provisions, which for the townhouses include increased lot coverage, 50 per cent compared to RM1’s standard 35 per cent, significantly reduced front, side and rear yard setbacks, reduction in the distance between buildings and increased allowance for encroachment into the setbacks for porches, decks, steps and etc.

For the apartment, the application is identical when it comes to increased lot coverage, and the ask includes reduced setbacks (actual distance somewhat different than for the towns).

In this case however, there is also a request for an increased maximum height from the existing RM2 (a more practical standard given the proposal is for an apartment building) of 10.5 metres to 13 metres — a 30 per cent height increase.

From these three examples, which are typical development applications drawn from the town website, it becomes very clear that the requests contained within the applications are generally not minor in nature nor few in number.

By this point, you may be a little curious regarding how this state of affairs came to be.

Well, planning in Canada from its earliest advent in the 1890s has always been a bit of a battleground between those with conflicting interests.

In his 1981 thesis entitled “The Evolution of Urban and Regional Planning in Canada,” Thomas Gunton suggests that after the Second World War:

“Housing and land were defined as one of the sectors of the economy affected by market failures. Major government reports defined a new postwar system of urban and regional planning to mitigate these failures in land and housing markets. The reports were highly critical of the type of planning existing in the ’20s and proposed a new, more comprehensive system of planning and of controls over property.”

Gunton continued, “The urban liberals, however, who were the dominant group, were apprehensive about the increased role of the state envisaged in these reports. Consequently, they only partially implemented the recommended reforms. Urban and regional planning, although strengthened, was ultimately subordinated to the interests of private markets and property. It again became a passive system of regulation providing necessary services to accommodate private expansion and regulations to enhance property rights.”

He then wrote, “The tendency of liberal planning to shift back and forth between more aggressive intervention during times of crisis and very passive intervention during times of stability has meant that, because of the long lag times between the emergence of crisis and the creation of plans and institutions capable of managing the crisis, Canadian planning has been strongest after the crisis has already subsided or when it has changed form. Consequently, the ability to plan has been highest when the need to plan has been lowest.”

In short, we have a passive system designed to support the interests of private developers and, during the last few decades of relative stability, the ability of planners to aggressively intervene has been distinctly curtailed.

Thus, as the economic and resultant political power of the real estate development industry has grown, the planning agencies responsible for holding them in check and accountable to the various planning instruments are at their lowest ebb since the 1940s.

And, we have the Wild West without sheriffs.

Brian Marshall is a NOTL realtor, author and expert consultant on architectural design, restoration and heritage.