Law Times

Law Times • June 29/JuLy 6, 2009 FOCUS 'Store wars' challenge big-box retailers BY GLENN KAUTH Law Times Owen Sound has rejected Wal- Mart's bid to expand its loca- tion there with its so-called Supercentre grocery offerings. The decision follows bids to halt similar proposals in other cit- ies, including Thunder Bay and Woodstock. In Thunder Bay, city council recently approved the expansion over protests from an environmental group, while in Woodstock, the issue went to the Ontario Municipal Board, which last year approved the retailer's plans. In Owen Sound, local politi- cians based their rejection of what was a 39,000-square-foot addition to its store on the need to protect the city's downtown. In particular, they worried about the impact on a grocery store owned by Metro Ontario Inc. "Allowing the expansion will increase the risk that the down- town store will close," according to minutes of a city council meeting where a Metro execu- tive gave dire warnings about the impact of Wal-Mart's plans. Such battles aren't new, of course. Residents in Guelph, along with the city council there, fought against a Wal-Mart store for years until a compromise a few years ago finally allowed I n one of the latest acts of what planning lawyers call the "store wars," the City of the retailer to proceed. But Eric Gillespie, a Toronto lawyer who was part of the battle against the Guelph location, suspects the scales have tipped at least some- what against big-box develop- ment proposals. As a result, while Wal-Mart isn't appealing Owen Sound's decision, he feels the city would have a better chance of defending it before the Ontario Municipal Board due to changes to the Planning Act in 2007. "Under the current Planning Act, more weight has been given to the decisions of municipal councils. So, it is reasonable to think that, just as in the Leslieville case, . . . the City of Owen Sound denial might also well be upheld," he says, referring to the recent battle between the City of Toronto and a developer over a proposed big-box project near its east-end industrial lands. In Owen Sound's case, coun- cillors based their decision in part on the city's official plan, which emphasizes maintaining the viability of the downtown. In Leslieville, meanwhile, the battle was over a plan by SmartCentres to build a massive power centre in an area the city had desig- nated employment lands geared primarily towards the redevelop- ment of creative jobs in film and media. Arguments against the SmartCentres proposal included claims it would threaten the city's plans by allowing retail to take 'There certainly seems to be more of a trend where coun- cils are giving greater consid- eration to their existing busi- nesses without automatically saying all new development is good,' says Eric Gillespie. over the area. The developer took the case to the OMB, which earlier this year ruled in the city's favour. Speculation was that Wal- Mart likely would have been a key tenant there as well. "There certainly seems to be more of a trend where coun- cils are giving greater consider- ation to their existing businesses without automatically saying all new development is good," says Gillespie, who also fought against the Leslieville proposal on behalf of two community groups. Wal-Mart, however, denies it's meeting more opposition. "As a company, we're still growing. We're seeing a huge welcome mat in most communities," says com- pany spokesman Kevin Groh, who points out that Wal-Mart has 25 to 30 projects in the works in "Ontario and beyond." "Very few of those will receive any sort of substan- tial municipal challenge that's beyond the norm when you're proposing a project the size of a Wal-Mart," Groh adds. Still, the retailer has come up against somewhat novel bases for opposition to its proposals in recent years. In Thunder Bay, for example, the battle was over whether the planned expansion would destroy too much green space. In Port Elgin, meanwhile, resi- dents justified their opposition to a Wal-Mart store there on claims the design of its proper- ties are a threat to public safety — particularly to that of women — due to its sprawling parking lots. But Gillespie, who han- dled that case as well, notes the retailer's moves to redesign the proposal before an OMB hear- ing blunted the complaints and therefore allowed it to proceed. As in Owen Sound, the issue over a Wal-Mart grocery expan- sion in Woodstock centred on alleged threats to downtown businesses as well as claims that allowing it to go ahead near a competitor's planned store would create too much retail capacity. But last year, the OMB rejected KEEP CURRENT ON A BROAD RANGE OF MUNICIPAL LAW ISSUES NEW EDITION RUSSELL ON ROADS, 2ND EDITION W.D. (RUSTY) RUSSELL, Q.C., B.A., LL.B. Understand the rules of the road. This clear and concise manual will help you analyze the issues, prepare for the problems, get immediate access to the case law, and make sense of it all with crystal-clear commentary. This text is a revised, updated, and expanded edition of Russell on Roads (1st edition) categorized into 33 established road and road- related principles with supporting legal cases. 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In doing so, it noted that in order to prove a competing store's risk of closure, it would need to provide financial information as well as hear testi- mony from one of its operators. Guelph, of course, was one of the more storied Wal-Mart controversies, a scenario that eventually saw a challenge against the store based on a freedom of religion application arguing that the retailer would impinge on a neighbouring Jesuit retreat. But after Wal-Mart agreed to a "liv- ing wall of willows" that would separate the two properties, the parties agreed to settle their dif- ferences, Gillespie notes. Now, the Jesuit community is planning a long-term, old- growth forest project for the area, a move Gillespie says is proof the mitigation measures have been effective. The case is evidence as well, he argues, that residents' battles with big-box retailers aren't necessarily about stopping developments but rath- er about mitigating or resolving potential harms from them. "Sometimes, they are about saying 'no,' such as Leslieville. In other cases, it may be possible to explore a resolution that would allow Wal-Mart or large-scale shopping to exist in some form with its neighbours." LT PAGE 13 AVAILABLE RISK-FREE FOR 30 DAYS: Order Online at www.carswell.com Call Toll Free: 1-800-387-5164 (In Toronto: 416-609-3800) Prices will be converted to Canadian currency at time of invoicing. Shipping and handling are extra. Prices subject to change without notice due to currency fluctuations and subject to applicable taxes. Untitled-3 1 www.lawtimesnews.com 6/22/09 11:35:17 AM 12928-11066 MM1 05/09

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