Bill Hulet Editor

Here's the thing. A lot of important local issues are really complex. And to understand them we need more than "sound bites" and knee-jerk ideology. The Guelph Back-Grounder is a place where people can read the background information that explains why things are the way they are, and, the complex issues that people have to negotiate if they want to make Guelph a better city. No anger, just the facts.


Saturday, December 17, 2016

The Walmart Story---by Ben Bennett

The Walmart saga
By Ben Bennett


Summary

Ben Bennett
For more than 10 years Walmart and its developer, 6&7 Developments tried to get industrial-zoned land in Guelph’s north end rezoned for commercial development. At the very first developer-sponsored public meeting at the Evergreen Centre, a lot of people turned out to express their concerns. This established a pattern that has endured through every single public meeting on the issue from 1995 to the present day. While there were a small handful of regular speakers in favour of the proposed Wal-Mart, there were literally dozens opposed. Residents for Sustainable Development in Guelph (RSD) was formed to represent citizens opposing the development at the Ontario Municipal Board (OMB), after the developers appealed the 1997 council decision to reject the development. More legal challenges followed the OMB decision to allow the store.

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Recently, Walmart Guelph marked the 10-year anniversary of opening its store on Woodlawn Road by opening another at Stone Road. With that in mind, this is a good time to recap some of the struggle that happened in Guelph leading up to that original store opening in 2006. (Full disclosure: I was a key player in that battle, as spokesman for Residents for Sustainable Development (RSD), the citizens’ group that opposed the location Walmart chose for its first store.)

Many people shopping at either of the two Walmarts in this city will be aware of the long time it took for the first store to open, but there are likely hundreds of others who have no idea about the huge battle that preceded it. As a model for community organizing, sustained participation in a tortuous planning process, and, sheer tenacity, the big box battle in Guelph from 1994 to 2006 had few equals. It could be seen as a David and Goliath story or a tale of a community divided; the media was to play either theme, depending on the angle of the articles being written. And there were lots of articles, mostly local at first, but even the national media took an interest once the legal battle moved up the line from the Ontario Municipal Board (OMB) to the courts. There were TV programs, and even a documentary titled Walmart Nation by Toronto film-maker Andrew Munger.



Fairly early on in the legal process that followed its appeal to the Ontario Municipal Board (OMB), Walmart claimed to have a petition with 8,000-10,000 signatures supporting the company’s application to build in the north end. Residents for Sustainable Development (RSD) asked to see it---and only after long delay---RSD was allowed to see the exact wording, which turned out to be "We respectfully petition Wal-Mart Canada to set up business at Guelph, Ontario". In other words, their petition was about whether or not citizens wanted a Wal-Mart in Guelph, not whether or not they wanted it at the specific site it ended up going---and which the official plan of the city of Guelph forbade.  Later, a group called Guelph Preservation Action Committee amassed a petition of more than 12,000 names opposing the store, and that particular petition was all about the location at Woodlawn and Woolwich. No one ever suggested there wasn’t a consumer demand for big box stores. Indeed, Residents for Sustainable Development (RSD) even wrote to Walmart suggesting they build two stores – one in the west end and another in the east end, where all the new development was taking place.

From the beginning of the fight RSD set up a website (www.not-there.ca) to reinforce that the issue was location, not the store. While many of those opposed were very much against Walmart as a company, the principal arguments had to be about planning. Zoning is about the use of the land---not the individual user. Walmart was seeking to change the zoning from industrial to commercial. And to do that it needed the city to change its Official Plan. When the council refused, Walmart appealed that decision to the Ontario Municipal Board (OMB.)

The few people who actually showed up at the public meetings in support of Walmart, and the letters to the editor, focused on the need for the store, not the location. (There were surprisingly few given the apparent demand – but that is likely a biased view.) Some of them argued that if people were leaving town to shop it would be better if they stayed in Guelph. It was a fair point but as the city already had land zoned and ready in its Official Plan, it made more sense to put it there. The store could have been here in the late 1990s if Walmart had built on land with the right zoning.

That a lot of people in Guelph really wanted a Walmart, however, was confirmed in the 2003 municipal election. All the pro-Walmart candidates won, and most of those who supported the council’s decision to oppose the north end location were thrown out, including the mayor. (Ironically, two months after the store opened in the fall of 2006 most of that political support evaporated and almost all of the pro-Walmart candidates were defeated.)

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City Hall

It all began back in 1994 when and the out-of-town developer named "Six and Seven Developments" applied to build a big box “power centre” anchored by a Walmart on industrial land at the north end of Guelph. A couple of months later, another developer named "Hammerson Canada" (then owner of Stone Road Mall) applied to build a power centre anchored by Walmart’s retail rival Zellers on University of Guelph lands adjacent to the Stone Road Mall. (Ironically, once built, the Zellers never really got off the ground and was subsequently replaced by a Target. That store also failed and it is now the site of the second Walmart in Guelph.)

At the time of the original applications in the mid 1990s there was a huge shopping centre zoned but unbuilt in the west end of the city, and 20,000 residents in new homes there with no local stores. And there was nothing in the east end of Guelph, although a large retail centre was zoned. There is still nothing for shoppers in the east end, although a small grocery store has been promised.

The opposition to the Walmart was, for some, as noted above, all about the company itself, but the main planning argument was about the location. Its size would place existing (and planned) shopping centres in jeopardy and its location would see increased traffic. Had the company accepted the council decision and opted to locate in the west end site that was already zoned---next to the planned Zehrs---this whole story would not have happened.  And the thousands of Guelph residents who were very keen to have a Wal-Mart in Guelph would not have had to wait so long.

We have no idea exactly how much they spent on lawyers’ fees but we do know they lost more than seven years’ worth of sales. At the minimum agreed sales rate of $505 per square foot, a 135,000 square foot store would have generated $477,225,000 in sales —almost half a billion dollars! Each year the store was not here, another $68 million in Guelph sales was lost. And the city has also lost approximately $1- 2 million in taxes.

(It was subsequently learned that Walmart was co-owner of the development company that wanted to build the power centre.  It had a very real commercial reason to want that site---in addition to the opportunity of making sales at the retail level---hence its insistence on this site and not the already zoned sites that it could have chosen. In fact, when people complain about their neighbourhood lacking things like grocery stores, part of the reason is because large retailers refuse to abide by the official plan and the OMB "enables" them by allowing them to ignore it.)

The city council, sensing this was a big issue, asked its planning staff to develop a comprehensive consultation process. Twice in the space of two weeks, the people of Guelph gave up their evenings to learn more about the big box plans. While there had been some efforts locally to mobilize people on the Wal-Mart proposal (which wasn’t hard given the company’s reputation), the sheer number of those attending both meetings was a shock to everyone. Despite the PowerPoint presentations, the nicely-coloured architectural renderings on easels, and, reassuring words from lawyers, most of the public attending those meetings was not buying it. It was the same story at the official public meetings. By a margin of perhaps 10 to one, the residents of Guelph were saying "No Thanks".
When the matters finally came to the council table for a decision (both needed zoning changes), there were more crowds of concerned citizens, more earnest deputations, and both applications were turned down.

The next day the local paper screamed, “Power to the People!”

What had happened was what is supposed to happen. The council had made a decision which supported its Official Plan and reflected the views of its constituents (or at least, those who showed up to attend the meetings).

But then the real power started to show.

Within a few weeks of the June 1997 council decision, both developers lodged appeals with the Ontario Municipal Board. (Anyone can appeal a council decision to the OMB, assuming the reasons are not considered “frivolous”, but not everyone can afford the lawyers and experts needed to carry a case. Developers, who are usually the ones doing the appealing, can afford it. It is a cost of doing business.)

The developers brought “revised” plans to the OMB and the city was ordered to hold another public consultation process. Once again, the meetings were full; once again the vast majority of the public attending said No Thanks. But by now there was a different council, with many new faces, most of whom were right in line with the free market theories being espoused by the provincial government led by Premier Mike Harris. Despite a strong staff recommendation saying the proposals really hadn’t changed, and continued public opposition, the council approved both proposals in February 1999.

So much for the people’s power. But the story didn’t end there.

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The OMB Players

For a variety of reasons, the OMB pre-hearings dragged on another two and a half years, and the proposals were sent back for a third public process in the fall of 2001.  Once again, the meetings were full; once again the vast majority of the public said "No Thanks".

Art by Scott Mooney
This time the staff produced a report supporting both developments, with the Walmart going first and the Zellers following some years later. This led to furious lobbying by the University of Guelph and a combination of in-fighting and unlikely allegiances at the council table that saw each proposal turned down. This decision had little to do with the input from the public or the planning staff, but everything to do with the power of local politics. (Around this time Guelph Against Goliath was published, which I wrote with my partner Gail McCormack.)

The OMB hearing finally got under way the following summer. As the representative for our local citizens’ group, Residents for Sustainable Development (RSD), I was a non-lawyer surrounded by the best of Bay Street. They had the power. We had the passion. It was not a particularly good match.

Being an old boys’ club, there is a culture that permeates the hearing process that makes it pretty clear that only lawyers need apply. It doesn’t mean that as a non-lawyer you cannot play, and it is not as if the other players are not courteous and accommodating. This was certainly my experience. But there is a reality here that cannot be ignored. Lawyers at this level are paid big bucks because they know the game. They have access to resources and experts that the citizen can only dream about and the collegiality of the courtroom environment guarantees they will be heard.

Based on some of the decisions that have come down during the four years of pre-hearings and motions that we were part of, we sometimes wondered if anyone was even listening. In most cases, the decisions did not even acknowledge the arguments and points we had made.

The way the OMB is set up, all the decision-making power is with one person: the presiding member. OMB members are political appointees. The idea of an “appeals court” for council decisions makes sense, but as long as the people making the decisions cannot be realistically accessed or challenged by the public, there will always be question marks that hang over their decisions.

The OMB hearing started as planned on April 15, 2002. The players were:
  •  Armel Corporation, which owned the west end shopping centre new anchored by the large Zehrs 
  • The Bay, which owned Zellers 
  • the University of Guelph, which owned the lands east of the Stone Road Mall 
  • 6&7 Developments, which was co-owned by Walmart and wanted to build on the land it had purchased at Woodlawn and Woolwich
  • the City of Guelph, 
  • Residents for Sustainable Development (RSD)
  • Dr. Griff Morgan, a local activist who was representing the Council of Canadians 
  • the Ignatius Jesuit Centre, which owned land right behind where the Walmart was proposed
There was an immediate delay while the Board called for Walmart sales figures.

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The Time Line

In September 2002, we got back to business.

Phase One of the hearing---the market issues---was to be about six weeks of in-camera sessions on what kind of sales a Walmart can be expected to do in Guelph. Based on the previous analysis, we knew it will be somewhere between $450 and $600 per square foot but they still had to argue about the exact figure for six weeks! This part was moved to Toronto, as it was in camera. It ran for several months - six weeks having been a somewhat hopeful underestimate.

The parties had reserved (more realistically) four to six months for the actual hearing, which was to be held at the Guelph City Hall council chambers.

On November 10 2003, the mayor and most of the “progressive” councillors were swept out of office and replaced by candidates whose mantra essentially was Wal-Mart and low taxes.

One of council’s first acts was to instruct its solicitor and Aird & Berlis LLP to undertake discussions and negotiations with the parties to the hearing to determine whether and on what terms settlement with some or all of the parties may be achieved. A public meeting was scheduled for May 25 2004, at the Italian Canadian Club. At the meeting, staff were to present a report on the outcome of those discussions.

As if by magic, in the days leading up to the meeting, it was announced that the University, the Bay and 6&7 had resolved their differences and a couple of days later we were advised that Armel was out of it, too, having settled its differences. No details. No comment.

Council sat through 42 delegations on the big box issue, May 25 2004, with 37 of them opposed. The vote was 10-3 to support both big box proposals.

Griff on the left, and Vi Morgan on the right---with Maude Barlow
in the middle. Three well-loved individuals.
Photo from the Council of Canadians.
RSD was now the only party opposing the developments (Dr. Morgan having passed away earlier that year.). It was time to get a lawyer. Enter Eric Gillespie. The actual hearing began as scheduled August 3.

At a public night at the Italian Canadian Club about 400 people showed up, with more than 70 on the speakers list, with all but 5 opposing the Walmart.

Three days were reserved to hear the final arguments on both the planning and charter issues, beginning with 6&7 Developments, October 19 2004. A statement by Bob Boxma, September 1, 2004 read: "RSD intends to argue that the Board, in considering whether to approve the planning instruments for the 6&7 lands, must have regard for the right of freedom of religion that is protected under the Canadian Charter of Rights", and On October 21---more than seven years after its first prehearing conference---the Ontario Municipal Board hearing ended.

"You have presented me with probably the biggest challenge of my life, " said OMB chair Box Boxma as the hearing came to end.

To no one's real surprise, the Ontario Municipal Board announced in January 2005 that it had approved the proposed Wal-Mart big box development at Woolwich and Woodlawn in Guelph.

RSD sought leave to appeal the OMB’s decision and the hearing was held 3 at the Divisional Court of Ontario in Toronto. In March Madame Justice Ellen Macdonald granted RSD leave to appeal, delaying the opening of the Walmart.

In the meantime, RSD held a public meeting to discuss other uses for the 6&7 site and sent the report off to Walmart.

There were presentations on the traffic, tax and social impacts of a business park, a cooperative housing development, a retirement/nursing home facility and a sports and playing fields complex. Other uses suggested included a community park, a research centre, a second campus for Conestoga College and a windmill farm.

In July 2005, despite the oppressive heat, about 400 Guelph residents and some out-of-town visitors packed into Chalmers Church for a Not There fund-raising concert. The show featured many of the local musicians who played on the CD, plus a bonus appearance by Juno-winner Stephen Fearing, who was one of the speakers at the original Walmart public meeting at the Evergreen Centre 10 years ago.  Singers James Gordon (now a Guelph City Councillor) and Sam Turton were interviewed by CBC earlier that day.

In August, 2005 the Divisional Court dismissed RSD’s appeal. RSD subsequently appealed that decision to the Court of Appeal, and a challenge under the Charter of Rights and Freedoms remained an option when other legal avenues had been exhausted.

In the meantime, RSD reached out to Walmart again.   In a letter to Wal-Mart Canada CEO Mario Pilozzi the group offered to withdraw its appeal if the company could prove its claims that there was majority support in Guelph for a Walmart at the Woodlawn and Woolwich location store at that location. Walmart declined RSD's offer.

In 2006  I published Secrets, Lies and No Replies. It was designed “to set the record straight about a number of matters and to provide some background on the efforts RSD has made over the years to come up with a community solution to this divisive issue.”

Later in 2006, the Ontario Court of Appeal refused RSD’s leave to appeal the August Divisional Court decision.

That was it for RSD’s legal options.

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The Multi-Faith Challenge

Soon after the appear, a local multi-faith group brought a Charter challenge against the rezoning that allowed the Walmart.

Citing Section 273 of the Municipal Act, the application was filed alleging that the by-law was illegal—in violation of the Canadian Charter of Rights and Freedoms—in that major commercial activity would directly and substantially interfere with the religious beliefs and practices of individuals of many faiths who use the Ignatius Jesuit Centre and adjoining lands.  Section 273(1) of the Municipal Act states that any person can apply to the Ontario Superior Court of Justice to have a municipal by-law quashed for illegality.

This move led to some serious negotiations with the big box store’s lawyers, resulting in a settlement.

The full details of the settlement were not made public but the highlights were. They included further visual and noise mitigation through the use of berms and extensive plantings and landscape alterations.

Progressive Lawyer
and all around great guy:
Eric Gillespie
As a result, there were significant plantings along the boundary between the development and the Marymount Cemetery/Jesuit lands, including numerous mature cedar trees and the establishment of a “living wall,” created from growing willows. As part of the settlement, 6&7 also agreed to work with acoustical engineers on potential noise impacts and increased the height of the berm.

The group’s lawyer, Eric Gillespie (who represented RSD at the OMB) said after the settlement:
“These steps were not directed by the OMB—or by the courts. 6&7 has voluntarily agreed to assist with these measures. The fact that significant litigation around these issues has been avoided clearly benefits all of the parties, and everyone involved in the settlement deserves to be commended."

Walmart’s north end store finally opened in the fall of 2006.

2 comments:

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  2. What a terrific read! Ben Bennett's synopsis of Guelph's riveting Walmart saga offers generous recognition where recognition is due. I'm sure his article will please all those who gave up their free-time over a span of 10 years to oppose Walmart at Council and the OMB. Well Done!

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