Tim Hortons

[realcity]

Drive-thru provision may drive coffee franchise to sue

Posted By JORDAN PRESS

Tim Hortons may sue and Lowe's could find a way to build where it wants to in the wake of the city adopting a new official plan.

The document, which will guide where and how development will take place over the coming decades, also sets guidelines for where new halfway houses, health-care facilities and student homes can be built.

The official plan is now in the hands of provincial officials who will pore through it before opening a 20-day period for public appeals, likely in October.

Besides Tim Hortons, there could be a slew of hearings for companies and individuals unimpressed with how the document treats them or their properties.

"We're hoping that (the number of appeals) will be minimal," said George Wallace, the city's planning director.

Topping the list is Tim Hortons. The coffee and doughnut purveyor bristles at one provision of the new plan, designed to "discourage" drive-thru lanes.

Only once has the company gone to the Ontario Municipal Board over an official plan issue related to drive-thrus.

It won.

Company lawyer Michael Polowin said he'd rather see things worked out before a hearing becomes necessary.

"We don't want to go the OMB, but if we have to, we will," he said.

The city produced a number of studies to back up parts of the official plan, but didn't provide one to explain its drive-thru rationale, Polowin said.

The OMB, which has final say on all planning decisions, will believe the city is unfairly targeting one industry and require the city to change the wording in the document, Polowin said.

The word that causes the most concern is "discourage." Tim Hortons believes that's tantamount to a prohibition; the city says it allows planners to deal with drive-thru applications on a case-by-case basis.

"We thought the wording we put in there addressed their concerns," Wallace said, "but it did not."

Wallace said the city expects Tim Hortons to file an appeal, which would result in a hearing likely by April or May.

Tim Hortons says drive-thrus are central to its business plan and the wording wouldn't permit it to build any new stores in the city.

The company says it is planning six more locations in Kingston, which could create 200 new jobs, according to a letter Polowin sent to city hall. (Tim Hortons already has 23 locations in Kingston and employs 600 people.)

Polowin said the belief that drive-thrus cause excess emissions is false. Peer-reviewed studies the company commissioned showed that idling for about four minutes in a drive-thru line emits less greenhouse gases than parking a car, going into a store and then starting it again five minutes later.

"The air quality thing is simply wrong. It couldn't be further from the truth," Polowin said. "We've had the science done."

He said the company wants to present the information to planners and councillors, which is why it didn't hand over the studies. "The documents need to be properly presented," he said. "The City of Kingston doesn't have a science department."

The new planning document merges the official plans from the former townships of Pittsburgh and Kingston and the former city. Wallace said planners didn't introduce a lot of new information into the document and tried to correct any past errors.

Property owners that wanted their land zoned a particular way in the new plan didn't always get their wish.

"We were not doing that unless there was an exceptional circumstance," Wallace said.

"That would include NCS Holdings."

NCS Holdings Ltd. is the company that owns land along Gardiners Road where Lowe's wants to build. If the city grants its request, the official plan would be amended to allow commercial development on land that is zoned for industrial use only.

Such a change would allow Lowe's to build its proposed home improvement store, which is the subject of an OMB hearing slated for the winter.

The official plan will also limit development to areas that already have municipal services, mainly south of Hwy. 401.

The growth boundary could change depending on whether any challenges are successful. If one property sneaks in and pushes the line out a little farther, that gives fodder for the next land owner to ask for the same treatment.

More information about the city's new official plan can be found online at http://www.cityofkingston.ca/officialplan.

- - -

What is an official plan?

* An official plan is the primary planning document for a municipality. It lays out how and where development can take place based on projected growth in the coming decades.

* This plan will replace the plans from the former city, Pittsburgh and Kingston townships.

* City planners expect Kingston's population to grow to 133,100 from the current population of about 117,200, an increase of 15,900 people over the next 17 years.

* They also estimate the local economy will grow and create new jobs, with a target of 700 new jobs per year being created in Kingston, or about 14,000 by 2026.

* While the population could rise, the number of people per household is anticipated to fall over the next 15 years. That will require 13,300 new homes and apartments to be built by 2026, or about 780 new residential units per year.

http://www.thewhig.com/ArticleDisplay.aspx?e=1666595

[realcity]

What's with Wal-Mart (their developers) and Tim Hortons bullying cities by threatening to go the OMB every time they don't get their way?

Cities should be allowed to build and design their own city. Wal-Mart and Tim Hortons don't get to decide. For once I'd like to see a city hire a lawyer for a $100,000 and call their bluff. Going to the OMB doesn't mean the City automatically will lose.

[Hammer Native]

It seems like the cities almost always lose though, at least everytime I read about cases going to the OMB. I think that Wal-Mart in Burlington on Fairview was fought at the OMB. I think our councilors knew we would likely lose the fight over the Fifty Road development. I just don't recall reading many times of the OMB siding with the policies of the cities. And probably these companies are aware of that. Even smaller cases, like that Bellevue house being torn down on Concession Street and the owner was required by our by-laws to erect a new one. He fought that at the OMB and won. A business owner wants to build a self storage facility near Cootes Paradise (at Olympic and Cootes Drive in Dundas). That's against the zoning by-law but he's going to fight that at the OMB.

I think I said long ago this agency has to go, you'd almost think it was in the pocket of these developers. I think our civic politicians should collectively start putting pressure on our provincial MPP's. Until that happens our official plans might as well be written on toilet paper.

[bigguy1231]

I don't think it's a matter of the developer's bullying the cities, but more a matter of fairness. The problem is cities are targetting specific businesses in their official plans. What the developers are arguing is that the same rules should apply to all businesses. Thats where cities lose at the OMB.

As for the Wal-Mart on Fairview in Burlington, the property was zoned commercial, in fact there was a Barn supermarket on the site. When the developer bought the property they applied for and were approved for a permit. Then the city changed their minds and tried to recind the approval. Thats why they lost the fight at the OMB. You have to realize that most of these developements are years in planning. Cities with ever changing councils can't just come in and change the rules at the last minute. Thats why we have the OMB. To provide a little continuity.

[realcity]

I can understand the continuity. And Im in favour of having a third party to resolve the disputes particularly since they likely know more about and are more educated/informed about urban development then a city councilor would be. But I don't understand with every ruling the OMB seems to support sprawl over in-fill and density.

[bigguy1231]

Originally Posted by realcity

I can understand the continuity. And Im in favour of having a third party to resolve the disputes particularly since they likely know more about and are more educated/informed about urban development then a city councilor would be. But I don't understand with every ruling the OMB seems to support sprawl over in-fill and density.

It's because alot of the cases that go to the OMB have been in the planning stages for years and years and when first proposed they met the guidelines of that time. But once it comes time to get the shovel in the ground the cities change the rules. Thats why the developers use the OMB and thats why they win. If the rules didn't change there would be no need for an OMB. It's about keeping politics out of the developement process.

[highwater]

What you call 'politics', some people call good planning. Good planning principles should factor into the OMB's decisions far more often than they do. And with the bulk of political donations being made by developers, giving into their demands is political too.

[Hammer Native]

Originally Posted by bigguy1231

It's because alot of the cases that go to the OMB have been in the planning stages for years and years and when first proposed they met the guidelines of that time. But once it comes time to get the shovel in the ground the cities change the rules. Thats why the developers use the OMB and thats why they win. If the rules didn't change there would be no need for an OMB. It's about keeping politics out of the developement process.

I will say I think your points about why the OMB was formed and about fairness in the process are valid, but I think the process has gone beyond being fair and seems to become one sided. Yes it's cases of communities and their councils verses corporations and developers and most of the time it seems the communities lose.

What I think it comes down to is this: We, the citizens of these communities, through our elected representatives ultimately, should have the right to decide the destiny of our cities and towns. What kind of formations do we want for our communities. We are after all the ones who live here. Our neighbourhoods are too many times seeing things decided by Ontario bureaucrats and developers and corporations, and even small business people wanting to push through their own agendas.

Yes the rules do change, maybe too many times but it is inevitable to improve or even maintain quality of life in communities, things sometimes have to change. After all times change, peoples thoughts on things change, and of course the people themselves who live here change. One hundred years ago it was okay to have all heavy industry on the waterfront, people had jobs and to them life was good. Now we value our waterfronts too much. In fact our west harbourfront was destined to become more industrial but the council at the time changed plans. Thirty years ago drive-thrus were a novelty, and power centres were unheard of. Now we're in danger of being overrun with them.

How do we maintain fairness in the process for developers who had proper zoning and had projects planned for years? I don't know maybe some type of grandfather clauses will need to be implemented in official plans. However there have been cases of developers buying property and wanting to change the zoning and fight like they almost have the right to do that.

I do think councils though need to be more pro-active and quicker in implementing new planning, (like not waiting until we have too many drive-thrus and many businesses become dependent on them), and removing archaic by-laws. (the Pearl Factory case comes to mind.)

You know once in a while we do see progressive developers work with the communities and councils on building things that are suitable, and can contribute and improve neighbourhoods. And these are likely the ones who don't end up fighting at the OMB.

[SteelTown]

Usually OMB tries to pick the middle ground. For example with banning drive thrus in the North End, part of Setting Sail, the OMB agreed with the city to ban drive thrus for certain areas. But the proposed retail for Barton/Ferguson will be allowed to have a drive through.

[realcity]

O good the OMB agreed with democracy.

Hammer Native has a very good point. We elected the city councilors they make a decision on our behalf.... democracy... then the OMB can reverse the process.

Who are these are powerful people. Who's on the board, qualifications, appointments. How can i get on the Board?

[markbarbera]

The problem with 'democracy' in its current state, is that there is the potential for small special interest groups to apply undue influence on vulnerable segments of said democracy and force an agenda sympathetic to their own individual cause which is not necessary in the best interest of society as a whole (said interest group could be a development firm bankrolling election campaigns, or a group of activists leveraging influence on sympathetic council members). The extremely high level of voter apathy magnifies the influence these group can have on the municipal level. OMB is intended to counter the potential for this kind of undue influence on the democratic process.

With regard to the sentiment that a large number of decisions in favour of developers implies undemocratic activity, well, in my eyes that's akin to labeling the Ontario Ombudsman or Auditor General of Canada as anti-government anarchists.

[FairHamilton]

Originally Posted by markbarbera

The problem with 'democracy' in its current state, is that there is the potential for small special interest groups to apply undue influence on vulnerable segments of said democracy and force an agenda sympathetic to their own individual cause which is not necessary in the best interest of society as a whole (said interest group could be a development firm bankrolling election campaigns, or a group of activists leveraging influence on sympathetic council members). The extremely high level of voter apathy magnifies the influence these group can have on the municipal level. OMB is intended to counter the potential for this kind of undue influence on the democratic process.

With regard to the sentiment that a large number of decisions in favour of developers implies undemocratic activity, well, in my eyes that's akin to labeling the Ontario Ombudsman or Auditor General of Canada as anti-government anarchists.

So, when the OMB sides with a developer when there is planning, city council and community rejection of a plan, they are saving democracy from the special interest groups?

[markbarbera]

Originally Posted by FairHamilton

So, when the OMB sides with a developer when there is planning, city council and community rejection of a plan, they are saving democracy from the special interest groups?

If the OMB rules against a city in favour of an appelant, it is done with justification and not simply on a whim. They are one of the oldest judiciary boards in the province, and its members are members of the Society of Ontario Adjudicators and Regulators. Its current chair is a former Mayor of Newcastle, and was a councillor for many years prior to that. The OMB is an avenue for appeal of a decision that someone feels was incorrect or wrong, be they developers, community organizations, or ratepayer associations, or simply a concerned citizen. In this role, they do serve democracy well.

[bigguy1231]

Originally Posted by markbarbera

The problem with 'democracy' in its current state, is that there is the potential for small special interest groups to apply undue influence on vulnerable segments of said democracy and force an agenda sympathetic to their own individual cause which is not necessary in the best interest of society as a whole (said interest group could be a development firm bankrolling election campaigns, or a group of activists leveraging influence on sympathetic council members). The extremely high level of voter apathy magnifies the influence these group can have on the municipal level. OMB is intended to counter the potential for this kind of undue influence on the democratic process

I agree, but isn't that what democracy is all about. You can't exclude groups just because they are well financed.

As for voter apathy in municipal elections, I tend to look at it from another point of view. That view being that it is not so much apathy as it is contentment. People just don't expect or demand too much of municipal politicians. As long as the municipality provides the basic services in a reasonable and timely manor voters will be happy. Issues that certain groups may feel stongly about just don't matter to the majority. There are not enough serious issues on a municipal level to spark large electoral turnouts and thats the way municipal politicians like it. They take care of the little things and avoid the contentous issues as much as possible.

[highwater]

Originally Posted by bigguy1231

You can't exclude groups just because they are well financed.

Strawman much? No one is suggesting excluding people who simply have money, it's how they use their money to buy undue influence, and the sense of entitlement that their money gives them, that subverts democracy. In any case, if you can't exclude groups just because they're well-financed, then you can't exclude groups just because they're vocal either, yet many well-financed, well-connected voices in this city see no irony in attempting to marginalize progressive advocacy groups. You yourself have mocked alternative transportation proponents in this forum, yet you rush to the defense of poor, misunderstood, 'well-financed' developers. You can't have it both ways.

[bigguy1231]

Originally Posted by highwater

Strawman much? No one is suggesting excluding people who simply have money, it's how they use their money to buy undue influence, and the sense of entitlement that their money gives them, that subverts democracy. In any case, if you can't exclude groups just because they're well-financed, then you can't exclude groups just because they're vocal either, yet many well-financed, well-connected voices in this city see no irony in attempting to marginalize progressive advocacy groups. You yourself have mocked alternative transportation proponents in this forum, yet you rush to the defense of poor, misunderstood, 'well-financed' developers. You can't have it both ways.

I didn't say anybody should be excluded, I think all opinions should be heard whether I agree with them or not. It doesn't cost anything to voice an opinion.

As for some having undue influence because they have money that may be so, but who are you or for that matter who am I to tell them how they can spend it. It's all part of the freedom we enjoy in this democracy. If you have something that people want to hear, it will be heard no matter how much money the opposing group may have.

I am in no way defending the developers, in my opinion most of them are scumbags. I am simply defending their right to represent themselves in whatever way they see fit. If that means them giving to election campaigns then so be it. There are limits to what they can give, and when it gets right down to it they only have one vote just like the rest of us. As for the marginalization of so called progressive advocacy groups thats all a matter of opinion. One persons progressive advocate is another persons whiner and complainer. It just depends on your point of view on the issues involved.

[adam]

It should be evident by now that if a development isn't in the best interest of those in the community, then we are going to "whine and complain" as you so lovingly put it.

[realcity]

Does anyone notice that drivers' loose their minds when going past a Tim Hortons?

It's like "hey do you want a coffee?" "umm, ya sure". Driver then skids over all the lanes cutting people off while they slam on the brakes.

[realcity]

I also noticed a big mobile sign at the corner of the new crappy drive-thru only Tims at Main & Wentworth saying "DRIVE THRU NOW OPEN"

No really? that's all your stupid store is. That would be awesome if it's not performing well and they have to convert back to a seating store.

[Hammer Native]

Lovely, a mobile sign accompanying the drive-thru, on Main Street to boot. I guess Upper James has it's share.