Green light’s still flashing on drive-throughs

…describing the decision "as a huge victory for the communities of Toronto." The bylaw stands as the best evidence yet that council is willing to stand behind the pro-people, pro-sidewalk vision of urban life contained in its new Official Plan. Although it breaks no new ground legislatively, it is undeniably progressive — and it will be noticed. Toronto: the first North American city to sanction gay marriages, the first to ban drive-throughs. I like the sound of that, even if it isn't entirely true.

The Globe and Mail
January 28, 2004

Green light’s still flashing on drive-throughs
John Barber

For a lot of people, especially Ontario Liberals, it will be hard to resist trumpeting the latest decision of the Ontario Municipal Board — to uphold a controversial city bylaw that virtually bans the development of new drive-through retail facilities — as the dawn of a new era of civic co-operation.

Look, they will say, the star chamber is listening. Now it will even let cities pass bylaws that upset Paul Godfrey.

The decision offers no actual evidence to support the view, but there are a few fleeting indications of hope in its pages. It is surprising to read that the board actually consulted relevant provincial legislation and policies in deciding the case. As its best-informed critics have pointed out, the board traditionally considers itself unbound by any policies but its own. Then there's the shocking, although qualified statement that "the decision of council should not be interfered with lightly."

That's exciting stuff for local Kremlinologists, but it hardly suggests that the wall's about to fall. Even the original Mike Harris OMB, whose members were told to support "economic development" above all else, would have balked at overthrowing Toronto's drive-through ban.

The main reason is that the bylaw was well crafted and situated firmly within a traditional municipal jurisdiction — the zoning of nuisance land uses — and any decision to overthrow that basic authority would have been revolutionary. Many observers, including sharp-eyed developers, would conclude that municipal councils in Ontario had lost the last vestige of their questionable authority. If a city can't prohibit people from slaughtering pigs in their backyards — or forging widgets, or scrapping cars or grilling cheeseburgers 1,000 at a time — what can it do?

In other respects, the decision is not nearly so definitive as its supporters might suggest. In fact, it leaves plenty of room for developers to seek new drive-throughs by means of site-specific rezonings, even going so far as to order the city to grant such approvals in suburban areas where drive-throughs can allegedly be accommodated "without impact." Developers will clearly have to spend more money to get approvals for new suburban drive-throughs, but the green light's still flashing.

As for Mr. Godfrey, he isn't finished yet either. As a proponent of the St. Clair Avenue drive-through that originally inspired the so-called ban, he and his colleagues in the venture may still win approval for it when Divisional Court hears their case this June. Their lawyers will argue, not without evidence, that the city treated them unfairly by banning drive-throughs shortly after their otherwise legal application appeared.

All the same, Councillor Joe Mihevc isn't far wrong in describing the decision "as a huge victory for the communities of Toronto." The bylaw stands as the best evidence yet that council is willing to stand behind the pro-people, pro-sidewalk vision of urban life contained in its new Official Plan. Although it breaks no new ground legislatively, it is undeniably progressive — and it will be noticed.

Toronto: the first North American city to sanction gay marriages, the first to ban drive-throughs. I like the sound of that, even if it isn't entirely true.

Ultimate approval of the Godfrey McDonald's will be a cruel reward for the activists of the Humewood Neighbourhood Residents Association, whose fight against it led to the adoption of a citywide bylaw. For the rest of us, though, the battle is won.

The decision to ban drive-throughs wasn't even controversial when it came to council — and it held up even after two councillors, Paul Sutherland and Betty Disero, discovered who owned the St. Clair property and immediately filed affidavits on his behalf, claiming they were misled by wicked Joe Mihevc into supporting the bylaw against their wills. They're gone now, of course, and that comedy is over. One swallow may not make a summer, but it's always welcome.

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