Ontario Municipal Board Commission des affaires municipales de l’Ontario

ISSUE DATE:

March 07, 2016

CASE NO:

PL150059

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Applicant and Appellant: Subject:

Existing Zoning: Proposed Zoning: Purpose:

Property Address/Description: Municipality: Municipal File No.: OMB Case No.: OMB File No.: OMB Case Name:

Rockport (Queen & Leslie) Inc. Application to amend Zoning By-law No. 438-86 – Neglect or Refusal of application by City of Toronto MCR T2.0 C0.5 R2.0 Site specific (To be determined) To permit the development of an 8-storey mixed-use building with 110 residential units, atgrade retail and underground parking 1327 to 1339 Queen Street East City of Toronto 14 125514 STE 32 OZ PL150059 PL150059 Rockport (Queen & Leslie) Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A Subject: Referred by: Property Address/Description: Municipality: OMB Case No.: OMB File No.:

Site Plan Rockport (Queen & Leslie) Inc. 1327 to 1339 Queen Street East City of Toronto PL150059 MM150028

2 Heard:

PL150059

January 25 – 27, 2016 in Toronto, Ontario

APPEARANCES: Parties

Counsel

Rockport (Queen & Leslie) Inc.

D. Bronskill

City of Toronto

M. Longo

Leslieville Community Coalition Inc.

I. Flett P. Vittal

DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER [1]

Rockport (Queen & Leslie) Inc. (“Rockport”) wishes to develop a mixed use

project on Queen Street East in an area known as Leslieville within the City of Toronto (“City”). [2]

The City has identified several segments of Queen Street East between the Don

Valley on the west and the old City of Toronto limits on the east. [3]

The subject site is on the south side of Queen Street East within a segment

between Leslie Street on the west and the Toronto Transit Commission (“TTC”) streetcar yards on the east. [4]

This same segment on the north side of Queen Street East is between Leslie

Street on the west and Vancouver Avenue on the east. Vancouver Avenue and the TTC yards are opposite one another. [5]

In support of its proposed development, Rockport applied for a proposed site-

specific zoning by-law amendment (“ZBLA”) to Zoning By-law No. 438-86 and an associated site plan. No Official Plan Amendment (“OPA”) has been required by the City and no OPA is before the Board.

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[6]

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These matters have been the subject of two pre-hearings. This is now the

hearing of the merits. PRELIMINARY MATTERS Previous Procedural Rulings [7]

During a teleconference prehearing on November 9, 2015, the Board, differently

constituted, made certain procedural rulings. At this current hearing of the merits, the Board confirmed one of the rulings and varied a second, as follows. [8]

Leslieville Community Coalition Inc. (“LCC”) had been added as a party at the

first prehearing held May 26, 2015. At the time of this prehearing, only the proposed ZBLA was before the Board. [9]

At the November 9, 2015 prehearing, the proposed site plan was before the

Board. [10]

The Member presiding at the November prehearing consolidated the referral of

the site plan under s. 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A with the appeal of the proposed ZBLA at the request of Rockport and with no objection from any party. [11]

Counsel for LCC advised the Board at this hearing of the merits that LCC was

under the impression that it was a party to the appeal of the proposed ZBLA only and was not a party to the site plan matter. [12]

The Board could find no reference in the decision that consolidated these two

matters to any ruling that excluded LCC as a party to both the site plan referral and the appeal of the proposed ZBLA, once these matters were consolidated as distinct from the Board simply grouping the two matters to be heard together.

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[13]

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As such, the Board at this hearing of the merits confirmed to the parties that the

result of the consolidation is that parties to the appeal of the proposed ZBLA are also now parties to the referral of the site plan. [14]

The second ruling made by the Board, differently constituted, was to adjourn the

site plan matter to a separate, as yet undetermined, time. In that ruling, the Board went on to state that the Member hearing the merits of the appeal of the proposed ZBLA would also be seized for the appeal of the site plan. [15]

The Board at this hearing of the merits could find no basis for this ruling in the

decision arising from the November 9, 2015 prehearing. [16]

On its face, the Member presiding did not hear any evidence on the site plan at

that prehearing or at the May 2015 prehearing. Moreover, the Member stated at the close of the decision on the November 2015 prehearing that the Member was not seized of the hearing of the merits. [17]

The site plan having been adjourned at the November 2015 prehearing to an

unscheduled future date, this current hearing of the merits has dealt with the appeal of the proposed ZBLA only. Since the site plan was not before this hearing of the merits of the proposed ZBLA, this Member is not seized of any hearing of the referral of the site plan. [18]

The Board, at this hearing of the merits, varies the ruling respecting a Member

being seized for both the appeal of the proposed ZBLA and the not yet scheduled referral of the site plan to make clear that the assignment of a Member to the hearing of the not yet scheduled referral of the site plan will be subject to the Board’s calendar with the assignment made in the usual manner. Partial Settlement [19]

At the outset of the hearing, the Board was advised that Rockport and the City

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had reached a settlement. The City now appeared in support of the revised proposal although the Board was advised that the City would not be calling any witnesses. [20]

LCC continued to appear in opposition. Participants who addressed the Board in

this matter also appeared in opposition. Narrowing of Issues List [21]

LCC placed five issues on the Issues List. They are: 1. Is the proposed height consistent with applicable Official Plan policies, in particular policies 2.2.3.3(b), 3.1.2.3 (a)(b)(c)(d)(e), 3.1.2.4, 4.5.2 (c)(e)(d)(f)? a. Will the proposed height set a precedent for development that is inconsistent with existing and planned contexts along Queen Street East? b. Does the “wrapped mechanical” concept appropriately capture the intention of policies and guidelines that constrain the height of a buildings and permit mechanical penthouses to exceed those heights? 2. Does the proposed angular plane at the south elevation transition development to the nearby neighbourhood in a way that prevents overlook and other adverse conditions? 3. Is the built form proposed along Memory Lane appropriate in regard to Toronto Official Plan policies 3.1.2.1 (b) and 3.1.2.3 (c)? 4. Are the proposed built forms at the north and south of the site, when taken together, function in a way that is consistent with Toronto Official Plan policies 3.1.2.1 (a)(b)(c)? Does the proposed organization of this site represent good planning? 5. What role, if any, should the Performance Standards for Mid-Rise Buildings in determining the appropriate built form at this site?

[22]

At the outset of the hearing, LCC advised the Board that it now wished to

withdraw issue 3 and issue 4. The Board confirmed that issues 1, 2 and 5 remain on the Issues List for the hearing.

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Motion brought by Leslieville Community Coalition Inc. [23]

LCC brought a motion for directions, returnable at the outset of the hearing, as

follows: 1. The Board to give direction to the Parties in this proceeding in respect of the applicability and according weight the Board will assign to the City of Toronto’s Mid-Rise Building Performance Standards, also referred to as the Mid-Rise Guidelines (“MRG”) in advance of the hearing of evidence in the instant appeal pursuant to section 37(a) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 and Rule 90 of the Board’s Rules of Practice and 2. In the alternative, to separate the hearing into two phases. The first to deal with evidence and argument as it pertains to the applicability and weight, if any, the Board should attach to the Mid-Rise Guidelines with the second phase to hear the substantive appeal following the Board’s findings on the first phase pursuant to section 37(a) Ontario Municipal Board Act, R.S.O. 1990, c. O.28 and the Rule 90 of the Board’s Rules of Practice and Procedure; and 3. Such other relief as counsel may seek and the Board may allow.

[24]

At the outset of the motion, the Board advised the parties that the Board had

read all the materials filed by the parties in this motion matter and wished to confirm certain points with LCC. [25]

The Board confirmed first that LCC continued to seek the relief as set out in the

motion. [26]

The Board then confirmed that LCC placed issue 5 on the Issues List and was

neither withdrawing nor seeking to amend issue 5. The Board repeats issue 5 here for the reader’s ease of reference: 5. What role, if any, should the Performance Standards for Mid-Rise Buildings in determining the appropriate built form at this site?

[27]

The Performance Standards for Mid-Rise Buildings, as LCC noted in its motion,

is also referred to as the Mid-Rise Guidelines (“Guidelines”).

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[28]

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Issue 5 directly engages the question of the role the Guidelines should play in

determining the appropriate built form. [29]

When a party places an issue on the Issues List, the Board expects the party to

be prepared to call evidence on that issue. By maintaining issue 5 on the Issues List, the question of the role of these Guidelines becomes a matter for adjudication based on the evidence called at the hearing. [30]

The first relief sought asks the Board to determine the applicability of the

Guidelines and the weight the Board will give the Guidelines “…in advance of the hearing of the evidence in the … appeal”. [31]

This relief would require the Board to make findings and a determination on a

matter that will be the subject of evidence prior to hearing any of the evidence. The Board finds that acceding to this request would create a fundamental unfairness in the Board’s procedure in this hearing. The Board denied this request. [32]

The second request was sought in the alternative and was to phase the hearing

such that the Board would hear the evidence and make a decision on the question of the applicability and the weight the Board would assign to the Guidelines. [33]

The hearing was scheduled for five days and was set at the second pre-hearing

held on November 9, 2015. [34]

The Board finds that acceding to this request at the scheduled start of a five-day

hearing to phase that five-day hearing, with a decision on the first phase before proceeding to the remainder of the hearing, would result in unwarranted complication and delay in the hearing. The Board denied this alternative request. Time Allocation [35]

Following the disposition of the motion, the Board turned to the question of time

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allocation. The Board expressed the view that this was now a fairly focussed hearing and that it was important to ensure that matters would be dealt with in a fair and efficient manner. To that end, the Board advised the parties that the Board would be setting time limits for each witness. [36]

No party objected to the allocation of time.

[37]

Following submissions, the Board allocated time then recessed briefly to provide

an opportunity for counsel to meet with their respective witnesses to prepare for evidence to be given within the time allocated. Witnesses Heard [38]

The Board heard from three expert witnesses: 1. Michael Bissett, a full Member of the Canadian Institute of Planners and a Registered Professional Planner in Ontario whom the Board qualified to provide independent expert opinion evidence in land use planning matters. Mr. Bissett was called by Rockport. 2. Kennedy Self, a retired Member of the Canadian Institute of Planners and retired Registered Professional Planner in Ontario whom the Board qualified to provide independent expert opinion evidence in land use planning matters. Mr. Self was called by LCC. 3. Anne McIlroy, a full Member of the Canadian Institute of Planners and a Registered Professional Planner in Ontario who is also a Member of the Royal Architectural Institute of Canada. The Board qualified Ms. McIlroy to provide independent expert opinion evidence in urban design. Ms. McIlroy was called by Rockport.

[39]

Belinda Schubert, added as a participant at a prehearing, advised the Board that

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she was unable to attend the hearing and did not testify. [40]

The Board also heard from four other witnesses: 1. Garth Norbraten, an architect who lives in the area. Mr. Norbraten was called by LCC and there was no request to qualify Mr. Norbraten to provide independent expert opinion evidence. Mr. Norbraten described the character of Queen Street East in the vicinity of the subject site. His evidence was consistent with the evidence of Mr. Bissett in this regard. Mr. Norbraten opposes the Rockport proposal as being too tall. 2. Victoria Dinnick, called by LCC and who is Chair of LCC. Ms. Dinnick owns two residential properties near the subject site and works nearby on Queen Street East. Ms. Dinnick opposes the Rockport proposal as being too tall and described it as looming over adjacent and nearby properties. Ms. Dinnick also expressed the concern that she would be able to see the Queen Street East portion of the proposed Rockport building from the rear of her two houses. 3. Caroline Winship, a participant who has been a very active citizen in the development of Guidelines for the segment of Queen Street East that goes west from Leslie Street and, therefore, west of the segment in which the subject site is located. Ms. Winship opposes the Rockport proposal as being too tall and creating an undesirable wall on Queen Street East. 4. Jeffrey Levitt, the Vice President of the Greater Beach Neighbourhood Association (“GBNA”) who testified on behalf of the GBNA. The GBNA had been added as a participant in these proceedings at a prehearing. The GBNA is an umbrella organization of residents’ associations that includes those within the segment of Queen Street East that is east of Coxwell Avenue to the old City of Toronto limits at the eastern end. This

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segment begins well to the east of the subject site. Mr. Jeffrey expressed concern about the height of the Rockport proposal. ISSUES, ANALYSIS AND FINDINGS Site and Area [41]

The subject site is bounded by Queen Street East on the north, Memory Lane on

the south, Knox Avenue to the east and Laing Street to the west. [42]

There is a park to the southwest. Specifically, south of Memory Lane and west of

Laing Street. [43]

While Queen Street East at this location is identified as an Avenue in the City’s

Official Plan (“OP”) and is designated Mixed Use, the area south of Memory Lane is generally designated Neighbourhoods in the OP. [44]

The south side of Memory Lane also has some commercial uses, including

garages and automotive repair, but the predominant use south of Memory Lane is residential with the OP designation of Neighbourhoods. [45]

The area is well-served by transit, with both streetcars and buses.

[46]

The City did not undertake an Avenue study that included this segment of Queen

Street East. The City directed Rockport to undertake a segment study on this portion of Queen Street East. Rockport did so. [47]

This segment study forms the basis for determining the character of this part of

Queen Street East and assists in informing the answer to the question of whether the proposed development is appropriate for the site. [48]

Since the proposed development would be on the south side of Queen Street

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East, the focus for determining the character is on the south side of the street. [49]

The south side of Queen Street East in this segment is characterized by low-rise

buildings in a mix of residential, restaurant, retail and automotive uses, including gaps between structures. [50]

The north side of the street has a more typical main street character with retail at

grade and residential uses above. The north side of the street also includes some more intense residential development. [51]

All witnesses who addressed the Board agreed on the pattern of existing

development on this segment of Queen Street East and that this pattern differs from segments to the east and to the west. Official Plan Policies and Mid-Rise Guidelines [52]

The proposed ZBLA to permit the Rockport development must conform to the

OP. The Board identifies three sets of policies that are germane in this case. They are policies that deal with the re-urbanization of streets identified in the OP as Avenues, policies to govern built form and policies to govern new development in areas designated as Mixed Use in the OP. Official Plan Policies for Re-urbanizing Avenues [53]

These policies recognize that new development and intensification will occur

along streets, like Queen Street East, that the OP has identified as Avenues. [54]

Policy 2.2.3 of the OP sets out the policies for re-urbanizing and intensifying

arterial corridors identified as Avenues. The policies begin with the requirement of an Avenue study. As noted above, the City has not undertaken an Avenue study of this segment of Queen Street East. Instead, the City directed Rockport to undertake a segment study, which Rockport did.

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[55]

The Rockport proposal requires an amendment to the zoning by-law.

[56]

Policy 2.2.3.3(b) addresses the circumstance of a proposed development that

requires a zoning by-law amendment prior to the completion of an Avenue Study, as follows: 2.2.3.3(b) Development in Mixed Use Areas on Avenues, prior to an Avenue Study has the potential to set a precedent for the form and scale of reurbanization along the Avenue … … Development requiring a rezoning will not be allowed to proceed prior to completion of an Avenue Study unless the review demonstrates to Council’s satisfaction that subsequent development of the entire Avenue segment will have no adverse impacts within the context and parameters of the review …

[57]

LCC has raised the issue of whether the proposed development meets the

requirements of, among other OP policies, policy 2.2.3.3(b) particularly in terms of a precedent that LCC considers to be undesirable. [58]

Since the proposal now before the Board has come on the consent of the City,

the Board draws the reasonable and inescapable inference that City Council is now satisfied that this proposal meets the requirements of OP policy 2.2.3.3(b). [59]

The Board has no contrary evidence before it.

Official Plan Policies for Built Form and Development in Mixed Use Areas [60]

The built form policies of the OP begin with the statement, at policy 3.1.2.1: New development will be located and organized to fit with its existing and/or planned context.

[61]

The planning expert called by LCC suggested that the planned context is the

zoning by-law applicable to the site. [62]

The Board disagrees and attaches no weight to this opinion.

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[63]

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The planned context differs from the existing context. In this case, the planned

context is re-urbanization and intensification of Avenues. The planned context is not the existing zoning for the site. If the OP intended the planned context to be the existing zoning for the site then the Board would not expect to find any language in the OP that contemplated zoning by-law amendments on streets identified as Avenues. [64]

Built form policy 3.1.2.3 repeats this point about new development fitting into the

planned context. This policy then goes on to call for massing that frames adjacent streets, exterior design elements to influence character, scale and appearance, and appropriate transitions in scale to neighbouring buildings. [65]

Built form policy 3.1.2.4 also emphasizes defining the street edge and locating

taller buildings to ensure adequate access to sky view. [66]

The subject site is designated mixed use.

[67]

The policies governing development criteria in mixed use areas also emphasize

the importance of framing the street edge, creating a desirable pedestrian environment, providing appropriate transitions to lower scale areas designated as Neighbourhoods, and locating and massing new developments to limit shadow impacts adequately. [68]

The Rockport proposal masses the tallest part of the development at the north

end of the site, fronting on Queen Street East. This element frames the street edge and steps back from Queen Street East as it rises. Exterior design elements create a proposed façade that emphasizes the step back and contributes to a desirable pedestrian realm. [69]

With its ultimate, mid-rise height of 25.8 metres (“m”), which includes the

mechanical penthouse that is wrapped with residential units largely facing south, this taller part of the proposed development provides adequate and ample access to sky view, limits shadow impacts adequately and provides adequate light and privacy.

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[70]

Memory Lane is a public lane that borders the subject site to the south.

[71]

At the south end of the site, adjacent to Memory Lane, is the townhouse element.

This arrangement puts the lowest elements of the development proposal at the south end of the site, resulting in an appropriate and compatible transition to the residential uses in the area designated Neighbourhoods to the south of Memory Lane. Role of the Mid-Rise Guidelines [72]

The mid-rise Guidelines are general guidelines intended to inform mid-rise

development on streets identified as Avenues. The evidence before the Board is that the City has applied the Guidelines in some areas and not in others. [73]

For the Queen Street East segment that is to the west of the segment in which

the subject site is located, the City developed segment-specific guidelines. These are the guidelines about which Ms. Winship testified and on which she had worked so hard. [74]

Rather than simply leaving these segment-specific guidelines as guidelines only,

the City folded several of the recommended guidelines into a formal amendment to the OP. In doing so, the guidelines that were included in the OP assumed the requirement of conformity and not simply the usual standard of consideration that is attributable to guidelines that are not in an official plan. [75]

At the time of this hearing, there were no Council-adopted segment-specific

guidelines for the segment of Queen Street East that is the subject of this hearing and no such guidelines had become part of the OP. [76]

As such, the Board is left with the more general Guidelines for consideration and

the requirement of conformity with the existing OP policies that address built form and mixed use areas. [77]

The Guidelines are not a checklist. While the Guidelines may use the terminology

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of performance standards, the performance standards in the Guidelines do not have the status of performance standards in the applicable zoning by-law. The Guidelines are matters to be considered when weighing the appropriateness of the proposal as a whole. [78]

Phrased another way, and in answer to issue 5 as posed by LCC, the Board

finds that the Guidelines are relevant but not determinative. [79]

Two performance standards in the Guidelines best inform consideration of the

Rockport proposal: maximum allowable height and rear transition to areas designated as Neighbourhoods when dealing with a deep property. [80]

The Guidelines refer generally to maximum height as being 20 m plus 5 m for a

mechanical penthouse, for a total building height of 25 m. The tallest component of the proposal is 25.8 m. [81]

When considering height, the Guidelines emphasize the importance of angular

planes. [82]

These angular planes provide guidance on massing and step backs which, in

turn, provide a basis to assess the desirability of the resulting pedestrian realm, access to sky view, transition to areas designated Neighbourhoods and adequacy of light and privacy. These are the same matters that are set out in the OP policies discussed above. [83]

Issue 2 raises a question regarding overlook as follows: 2. Does the proposed angular plane at the south elevation transition development to the nearby neighbourhood in a way that prevents overlook and other adverse conditions?

[84]

Concerns about overlook were expressed by Ms. Dinnick and Mr. Self, the

planner called by LCC.

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As noted above, the Guidelines suggest the height of mid-rise buildings should

be 20 m with an additional 5 m for the mechanical penthouse for a total of 25 m. In this case, the height is 25.8 m, including the mechanical penthouse that is wrapped with residential units that face predominantly south. [86]

No concern was expressed about overlook from units within the 20 m height

envelope on that portion of the development that is located at the Queen Street East end of the site. No concern was expressed about overlook from the townhouse units that are located at the Memory Lane end of the site. [87]

Concern about overlook was directed at the units that wrap the mechanical

penthouse and are found in the 5.8 m top portion of the height at the Queen Street East end. [88]

The Board attaches no weight to these concerns.

[89]

Overlook is not the test. The OP is clear that the tests are adequate light and

adequate privacy. [90]

There is no dispute that the subject site is a deep lot. With the massing of the

higher building element on the Queen Street East end, the depth of the lot and the intervening Memory Lane on the south, there is nearly 32 m of distance between the location of these upper residential units and the nearest lot line in the area designated Neighbourhoods to the south. This is a substantial separation distance that does not result in any inadequacy in light or privacy. [91]

In addition to being within the angular plane for height from Queen Street East,

the proposed upper residential units are within the angular plane for deep lots to transition to nearby areas that are designated as Neighbourhoods. [92]

Finally, the fact that one might be able to see the upper portions of the building,

or that those in those upper residential units might see some rear decks and yards in

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the distance, simply does not equate to inadequate privacy. The Rockport proposal is in an urban area, with a planned context of intensification and re-urbanization along a major street, which meets the tests of the OP and is a mere 0.8 m taller than the suggested total height of the Guidelines. [93]

The Board finds that the proposed ZBLA conforms to the OP.

Matters of Provincial Interest, Provincial Policy Statement and Growth Plan [94]

This proposal represents modest intensification within a settlement area, makes

efficient use of land and infrastructure, is transit-oriented, and contributes to the provision of a range of housing and to the furtherance of a complete community. [95]

The Board finds that the proposed ZBLA appropriately implements matters of

provincial interest as found in s. 2 of the Planning Act, R.S.O. 1990, c. P.13 (“Act”), is consistent with the Provincial Policy Statement and conforms to the provincial Growth Plan for the Greater Golden Horseshoe. Regard for Municipal Decision [96]

Section 2.1 of the Act requires that the Board have regard to the decision of the

municipal council and to any supporting information and material the municipal council considered in reaching its decision. [97]

The City appeared in support of the proposed ZBLA and the Board had before it

the public decision of City Council in this regard. [98]

The Board had no access to the supporting information and material considered

by City Council in reaching its decision since that information and material was contained in a confidential report from the City Solicitor to the City Council and, therefore, not disclosed to the Board.

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[99]

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The Board is satisfied that it has had appropriate regard to the requirements of s.

2.1 of the Act. [100] The appeal is allowed in part. [101] At the request of Rockport, and with consent of the City and with the consent of LCC in the alternative, the Board withholds its order until it has received confirmation from the City Solicitor that: 1. the final form of the zoning by-law amendment is to the satisfaction of the Chief Planner and Executive Director, City Planning, the City Solicitor, counsel to Rockport and counsel to LCC, [102] At the request of the City, and with the consent of Rockport and with the consent of LCC in the alternative, the Board further withholds its order until has received confirmation from the City Solicitor that: 1. all site plan pre-approval conditions have been satisfied, and 2. approval has been granted for the demolition of the existing buildings on the site, as set out in the decision of the City Council on December 9, 2015. “Susan de Avellar Schiller”

SUSAN de AVELLAR SCHILLER VICE-CHAIR

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format. Ontario Municipal Board A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248