New York’s Parks Commissioner, Mitchell Silver, has a theory that there are two kinds of cities when it comes to how they are built: plan-making cities and deal-making cities.

He mentioned this during a panel discussion in Toronto at the Economic Club of Canada luncheon last November.

Some places have these rules laid out in a plan that people follow. In other places, the rules amount, in effect, to a proposal to “make us an offer.”

Toronto’s chief planner, Jennifer Keesmaat, was on the panel. She immediately nodded as if he’d crystallized something elusive and essential.

Toronto, she said, is totally a deal-making city.

And the concept does seem to crystallize a lot about how Toronto development happens (or doesn’t) and the flare-ups in the news we hear about it along the way.

I was reminded of this exchange this week as I followed the arguments about a proposed eight-storey condo building on Davenport, opposed by Margaret Atwood, Galen Weston and some other high-profile Annex residents.

The contours of the arguments are by now familiar: “Developers running roughshod over the rules that protect our neighbourhoods” on one side versus “entitled NIMBYs hate new housing” on the other.

We know this fight because we have it all the time.

It can be fun! It plays to our snobberies and assumptions.

The one-liners are already written.

“This is an illegal assault on our community!”

“This is just what the city needs in a housing crisis and what our guidelines call for!”

“Which developer greased your palms?”

“Why do you hate those less fortunate than you?”

If some nuance is lost about what people really want or don’t want, that’s just standard operating procedure.

In fact, I think the system we have — call it Let’s-Make-a-Deal city-building — virtually ensures we have these fights, again and again.

I don’t know if that’s for better or for worse.

But it’s certainly not for easy understanding.

Let’s go back to Silver’s point: Toronto does have a plan. Officially. It’s called the “Official Plan.”

And it calls for intensification — more units for people to live in — on main streets, such as Davenport. Specifically, it says we need to accomplish this by getting developers to build mid-rise buildings.

An eight-storey building on a street such as Davenport is something we want to encourage.

That’s the plan.

But that isn’t the rule.

The rules, laid out in the zoning bylaws, say that you cannot build anything higher than two storeys, unless you get a specific exemption from the bylaw. Any neighbour could look at that and plainly see: an eight-storey building on that street is a violation of the bylaw! It’s against the rules!

So our plan says we want to encourage something, and our rules seem to say that same something is forbidden.

What’s that all about?

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Deal-making.

The zoning bylaws are not intended to be interpreted as rules that explain what the city wants and expects. In fact, many of the homes and businesses that have been standing for generations in our most apparently successful and beloved neighbourhoods do not conform to the zoning bylaws. These aren’t rules; they are the opening offer in negotiations.

If you’re a builder, you can take them as they are and have no further fuss, or you can make a counter-offer.

For instance, you could propose building something that the city, in it’s official plan, says it wants to encourage.

And then the negotiations continue: neighbours get to weigh in and ask for changes; the city might ask for cash for community benefits through Section 37 of the planning act; the developer might offer to trade one thing (a floor of height or a certain number of parking spots) for another (giving cash for a park, or changing the building materials, or including some affordable units).

And, if no one can come to a deal, then the Ontario Municipal Board can rule for one side or another. The OMB has long stood as the ultimate judge in this adversarial framework.

There are benefits to the city, and city councillors, from this system: they get to be involved, site-by-site in designing any proposed building and can extract dollars to build community amenities.

Councillor Gord Perks has explained, on Twitter, that the zoning bylaws and accompanying process shouldn’t be interpreted as forbidding anything, but as identifying a threshold at which community consultation and approval is needed.

It’s a threshold at which you need to get democracy involved in development . . . if you look at it from a certain perspective.

But there are drawbacks; it’s natural that people who live in a neighbourhood will object to changes to it, especially changes that might give them less privacy, or create more traffic on their street, or spoil their view, or bring down their property values.

Very often they are right that the change will have some negative effect on them, even if it benefits the city.

Now, if there were clear rules saying that something was allowed to be built, then those objections might be washed away as just the way things work in the big city.

But the existence of zoning bylaws that depict the proposal as “illegal” will only tend to harden their conviction that they are being wronged by a shady developer, and give fuel to their rhetorical depiction of the change as unjustified.

And, in the meantime, the deal-making nature of the process gives incentives to everyone involved to begin at more extreme ends of the spectrum than they otherwise would, so that any compromise that they settle on ends up closer to what they actually want.

Developers have often said it can be as hard, long and expensive to negotiate a midrise building as it is a highrise — and much less profitable.

So why not go up, up, up, if you’re going to endure the hassle anyway?

Would we be better off with clear plan-based rules, than with case-by-case deal-making? I don’t know. Silver said unequivocally that New York, where he works, is a deal-making city. But I see online that he’s given lectures saying plan-based cities can be most successful, because of the clarity they offer, and that, in deal-making cities, plans “lose credibility and public trust.”

What does seem obvious to me is that the Selfish NIMBY vs. Greedy Developer headline battles we usually see are a perhaps inevitable byproduct of the way the oppositional case-by-case development system is built. These fights are just part of the deal.

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