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|Local Planning Appeal Tribunal | |
|Tribunal d’appel de l’aménagement local | |
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|ISSUE DATE: |May 26, 2020 |CASE NO(S).: |PL170892 |
|The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the |
|Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal. |
|PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended |
|Applicant and Appellant: |K.P. Isberg Construction Inc. |
|Subject: |Application to amend Zoning By-law No. 438-86 - Refusal or neglect of the City|
| |of Toronto to make a decision |
|Existing Zoning: |Commercial – Other |
|Proposed Zoning: |Mixed Use – Residential/Non-Residential |
|Purpose: |To permit the construction of an 11 storey mixed-use building with 443 m2 of |
| |commercial space at grade, 23 residential units above and 41 underground |
| |parking spaces. |
|Property Address/Description: |183-189 Avenue Road and 109 Pears Avenue |
|Municipality: |City of Toronto |
|Municipality File No.: |16 259549 STE 27 OZ |
|OMB Case No.: |PL170892 |
|OMB File No.: |PL170892 |
|OMB Case Name: |K.P. Isberg Construction Inc. v. Toronto (City) |
|Heard: |July 15 to 26, 2019 in Toronto, Ontario |
|APPEARANCES: | |
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|Parties |Counsel |
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|K.P. Isberg Construction Inc. (Davenport Pears Realty Inc.) |Patrick Harrington |
|(“Applicant”) |Meaghan Barrett |
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|City of Toronto (“City”) |Mark Crawford |
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|ABC Residents Association (“ABC”) |Andrew Biggart |
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|Kenneth Tilden |Self-represented |
DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1] This Appeal, pursuant to s. 34(11) of the Planning Act, (“Act”), relates to the Applicant’s proposal to develop a mixed use building at the southeast corner of Avenue Road and Pears Avenue (the “Site”) containing 20 expansive high-end residential units spread over nine floors (with an additional wrapped mechanical penthouse) located above a ground floor retail space (collectively, the “Development”). The City failed to make a decision but since that time has been involved in extensive discussions with the Applicant, which has resulted in a number of iterative design forms, but no consensus. That iterative process has led to the submission of the current plans for the Development now presented to the Tribunal for approval.
2] The City and ABC are not opposed to development on the Site, but they have a number of urban design and built form concerns including the proposed overall height of 38.95 metres (“m”) and the manner in which it will rise above the adjacent residential neighbourhood to the east. The City and ABC ask that the Tribunal deny the appeal to prevent the Development in its current proposed form.
3] The Applicant requests that the Tribunal approve the proposed Zoning By-law Amendment that would enable the Development, subject to certain conditions as recommended by the Applicant’s planners, and inclusive of certain conditions requested by the City and ABC.
THE PARTIES, PARTICIPANTS AND THE HEARING
4] Two additional Parties, Ms. Nora Pratt and Mr. Ken Tilden were granted status during the Prehearing conferences. A total of 14 Participants were listed in the Procedural Order to provide testimony to the Tribunal.
5] At the opening of the hearing, Ms. Pratt advised the Tribunal, through Mr. Biggart, that she wished to withdraw as a Party to the hearing, as she was content to allow ABC to represent her interests but intended to provide testimony as a Participant. The request was granted.
6] The Tribunal was also advised that a large number of the Participants previously granted status by the Tribunal were also prepared to withdraw and permit ABC to advocate on their behalf, leaving only Ms. Munaza Chaudry and Mr. Rafael Wagner to provide additional testimony as Participants, in addition to Ms. Pratt.
7] Mr. Tilden advised the Tribunal at the opening of the hearing that notwithstanding the status granted to him previously, and his ability to make submissions, conduct cross-examination and call witnesses, he was content to monitor the hearing and permit ABC and the City to also advocate his interests. Mr. Tilden was advised that he remained a Party and during the first week was granted the opportunity to make submissions and ask questions of all witnesses, but advised the Panel, in each case, that he was satisfied with the cross-examination of the Applicant’s witnesses by ABC and the City and had no questions. At the end of the first week, Mr. Tilden advised that he would be travelling the following week for a personal commitment, would no longer be in attendance at the hearing, and wished to formally withdraw as a Party or Participant at the hearing. Mr. Tilden wishes to receive a copy of the decision of the Tribunal when issued.
8] The hearing was conducted over the course of seven days, with a suspension of the hearing during the first week due to the illness of one of the witnesses. The Tribunal heard from the following witnesses, each of whom were qualified to provide expert opinion evidence in their respective identified areas of expertise:
For the Applicant:
1. Peter Smith – Urban Design and Urban Planning
2. Steven Krossey – Traffic Engineering
For the City:
1. Swathika Anandan – Urban Design
2. Kevin Friedrich – Urban Planning
For ABC:
1. Michael Spaziani – Architecture and Urban Design
2. Michael Tedesco - Transportation
9] At the joint suggestion of all counsel, the Panel member conducted a Site visit to the local area for the purposes of assisting the Tribunal in understanding and considering the oral and documentary evidence presented in the hearing. The Site visit was conducted on the morning of July 18, 2019, without the presence of any witnesses or counsel, and was helpful in putting the evidence as to the immediate and local context of the Site, and the proposed Development, into observed perspective. This included the nature of the grade and elevation changes on the Site itself, the layout and form of the adjacent, and nearby, streets and properties including the residences east of the Development. The Panel also had the opportunity to view some of the nearby developments identified in the course of the hearing as contextual and comparative buildings, including 128 Pears Avenue (“The Perry”).
ISSUES
10] The Issues List in the Procedural Order governed the presentation of the evidence and the hearing of this Appeal. The issues before the Tribunal can be broadly identified as the determination of whether the Zoning By-law Amendments of Zoning By-law Nos. 438-86 and 569-2013 (the “ZBLAs”) that will permit the Development: have sufficient regard to the Provincial interests listed in s. 2 of the Act; are consistent with the Provincial Policy Statement, 2014 in force as of the date of the hearing (“2014 PPS”) and the 2020 Provincial Policy Statement (“2020 PPS”) in force as of May 1, 2020; conform to the applicable Growth Plan for the Greater Golden Horseshoe (“Growth Plan”); conform to the City’s Official Plan (“OP”) and any related and applicable secondary plans, as addressed in the evidence; properly adhere to all relevant design guidelines; and represent good planning in the public interest.
11] As the issues unfolded in the presentation of the evidence, it became clear that the broader issues were to be distilled down to the more specific issues which included the following:
a) whether the height of the building, as a whole, is appropriate;
b) whether the shadowing created by the Development conformed to the OP;
c) whether the proposed parking, loading and access, relative to the two streets, and the side laneway, are appropriate; and
d) whether the Development has appropriate set-backs and step-backs on the upper storeys, and is massed and scaled, such that it transitions to, and is compatible and contextually appropriate with, the adjacent low rise residential neighbourhood to the east.
THE SITE AND THE DEVELOPMENT
12] The Site is an assembly of lots located at the southeast corner of Avenue Road and Pears Avenue with Avenue Road to the west, Pears Avenue to the north, a public laneway to the east, and a commercial detached structure to the south. The north western-most lots at the corner (189 Avenue Road and 111 Pears Avenue) are utilized as a parking lot. The two adjacent municipal lots to the south (183 and 185 Avenue Road) are respectively a two and a half storey dwelling listed on the heritage register that was previously a dwelling and now is occupied by a daycare, and a 2-storey commercial building. The last lot in the northwest corner of the assembly, at 109 Pears Avenue, contains an unoccupied, water damaged two-storey dwelling, and a rear detached garage, and are located adjacent to the laneway.
13] Of some relevance to the consideration of the Development is that the Site is sloped in two directions: downwards from west to east, as Pears Avenue also slopes downwards from Avenue Road; and downwards from south to north as Avenue Road also slopes downwards to the intersection with Pears Avenue. The grade differential from the southwest corner of the Site to the northeast corner is 3.9 m and as a result, the Development, as proposed, will relate differently to the lower elevation of the residences and park to the east and northeast and to the higher properties located to the south.
14] The proposed building, as it has been presented to the Tribunal in the drawings and renderings, represents a somewhat unique built-form. On the ground floor level, the retail entrance will be from Avenue Road. The main entrance to the residential units will also be from Avenue Road but located at the northwest corner of Avenue Road and Pears Avenue. There will be 449 square meters (“sq m”) of retail space. The ground floor height will be expansive, with a mezzanine level, and set at approximately 6.7 m in height, with a sizeable glass-enclosed atrium.
15] The remaining upper-floor residential segments of the Development have been described as a “boutique condominium”. The average size of the 20 condominium dwelling units will be 3,000 square feet with the largest being approximately 7,000 square feet. Some units are spread over two floors. The ceiling heights of the seven floors containing the 20 residential units are higher than usual, each at a height ranging between 3.65 m to 3.8 m. The building will be topped by a wrapped mechanical penthouse.
16] There is some disagreement as to the identified number of storeys of the building. In terms of distinct levels/floors, it is correctly identified as nine storeys by the Applicant and Mr. Smith. In terms of relative heights of the levels/storeys, the City however considers the building to be 11 storeys with the first floor and mezzanine counting as two storeys and the wrapped mechanical penthouse counting as an additional storey. Mr. Spaziani adds another storey based on the determination of the floor level of the first parking level of the building. There is no dispute that the height to the top of the ninth storey is 35.20 m and that the total height of the building to the top of the mechanical penthouse is 38.95 m.
17] The Development will have an overall site density of 5.84 floor space index (FSI).
18] The opportunity for debate as to the storeyed height of the building is apparent from the renderings of the exterior in the architectural plans. The exterior built-form design is very articulated with varying depths, heights, set-backs and step-backs, balcony and terrace forms, extensions and inundations, window placement and material forms. The manner in which the design accommodates the engineered infrastructure to support the vertical vegetation, inclusive of mature trees in select points on the building’s façades, obscures to some extent the delineation of the individual floors in some parts of the building. Terraces are noticeably substantial in mass and size as they are intended to provide expansive terrace amenity space for unit owners and to accommodate the vertical forest. The Development is, in the Tribunal’s view, most certainly the antithesis of the standard form of mid-rise building with regimented set-backs and step-backs that would result in what is commonly referred to as the “wedding cake” tiered built-form adhering to the technical angular plane ratios and proportions.
19] As the Development is presented and advocated by the Applicant, the design of the built-form arguably implements many of the applicable performance standard and guideline elements, but instead of stringent angular plane applications, it relies upon other high-quality built-form and urban design elements to allow for transition and fit. These features identified by the Applicant include such things as: non-regimented step-backs; a 3 m depth set-back on the north side; additional step-back on the east side along the lane, resulting in a widened laneway; varied textures and building materials; expansive terraces; and, perhaps most notably, the engineering and integration of living/vertical forest elements as green growth buffers throughout each of the four faces of the structure. This vertical green space will utilize new hydration and nutrient delivery technologies for the growing of larger scale trees and vegetative elements at all levels of the structure. Due to the unique and enhanced private green space design, and the fact that each unit will have at least one private terrace, there will be no indoor or outdoor amenity space.
20] The manner in which the east, rear, side of the building, facing the low-rise residential street, will relate to the lands to the east, is determined by the elements of the built-form, as described above, including the proposed step-backs as the building rises. Again, due to the very diverse nature of the exterior façade elements, and variations in the built-form articulations, the terraces, surfaces, balconies and vegetative elements vary within each floor, and also from floor-to-floor, on all sides, including the east façade. This creates somewhat of a challenge in delineating the outline of the cross-section views of each side of the building, including the east side, as compared with a more conventional cross-section view of structures, and their balconies/terraces. It also makes easy comparisons between the outline of the east side of the Development, with the rear cross-section outlines of other building forms more difficult.
21] The step-backs on each side of the building have been presented in ranges, rather than specifics, due to the varied nature of the profile of the structure. The step-backs on the east side were summarized by Mr. Smith. At ground level and the mezzanine, the setbacks range from 7.1 m to 8.9 m increasing to a step-back range of 7.1 m to 9.2 m on Levels 2 and 3, and then increasing again to a range of 8.6 m to 10.9 m on Levels 4 through 7. At Level 8 the step-backs again increase to a range between 8.6 m and 12.2 m and finally at Level 9 are between 12.0 m and 15.6 m. Finally, the exteriors of the wrapped mechanical penthouse, on the east side are setback between 12.0 m and 16.9 m from the lot line.
22] With respect to loading, transportation and parking, the existing public laneway to the east of the structure will be enlarged through a 1.67 m public laneway dedication. With an additional set-back of 0.67 m on the east side, the increased laneway width will be 6.0 m wide (from its current width) intended to better accommodate laneway traffic from Pears Avenue to the interior of the rear lane, which otherwise does not connect to another public street. A garage entrance to the underground parking levels is to be located off the public laneway. There is no loading area.
23] A 3.0 m wide on-site parkland dedication is proposed along the northern edge of the Site. As the street does, this landscaped area will slope upwards westerly towards Avenue Road from the east. An angled walkway, with stairs, will connect the pedestrian area along Avenue Road in a northeastern direction towards Ramsden Park. This proposed public walkway will dissect this parkland dedication and allow pedestrians to walk towards the expansive path that enters Ramsden Park from its most southwesterly point, across the street on Pears Avenue.
24] As it will be designed, this described Pears Avenue parkland dedication is to represent a prominent landscaped pedestrian gateway from the corner of Avenue Road and Pears Avenue to the Ramsden Park corner entrance across the street from the Development. The site visit assisted in confirming the rendered views of the development from this corner entrance to Ramsden Park towards this parkland dedication found at page 19 of the Exhibit Book (Exhibit 2).
25] There is a heritage conservation element to the Development, as it will be designed around, and incorporate, the existing listed heritage building at 183 Avenue Road, through the use of preserved façade, cantilevered terraces and articulated features. This aspect of the Development has not been contentious.
26] Mr. Smith, in his evidence, identified the manner in which the height, gross floor area (“GFA”), design, and scale of the Development was reduced or altered from its earliest submission. The description of the altered form was supplemented by a summary table at page 15 of Exhibit 4.
THE PHYSICAL CONTEXT
27] The Tribunal was provided with a comprehensive overview of the surrounding area and physical context. The Site is within the well-known and distinctive Bloor-Yorkville area comprised of equally well-known high-end shops and restaurants, cultural/tourism institutions, and a wide mix of residential and commercial uses, heights, densities and built-forms. Higher buildings are located along the arterial streets and generally heights decrease westerly from Yonge Street towards Avenue Road, and also, northerly from Bloor Street West.
28] To the east, along Pears Avenue, on the south side, are 2 and 3 storey dwellings facing towards Ramsden Park. The street dead-ends at a two-building residential development accessed from Hillsboro Avenue (30 and 50 Hillsboro Avenue). The residential dwellings on Pears Avenue back onto the rear extension of the lane (which veers easterly at the southeastern corner of the Site) and in most cases are considerably lower than the level of the lane due to the upward slope of the land from north to south where the buildings fronting on Davenport Road back onto the same rear lane.
29] To the north of the Site between Avenue Road and Ramsden Park, across Pears Avenue is a 3-storey commercial building, and farther along Avenue Road, a number of 2 and 3 storey commercial detached and row buildings.
30] To the west, across Avenue Road, on the opposite corner of Avenue Road and Pears Avenue is “Pears on the Avenue”, a recent 20-storey mixed use condominium building. Pears on the Avenue is 71 m in height inclusive of mechanical penthouse.
31] To the immediate south, on the east side of Avenue Road, are two and a half storey semi-detached commercially occupied converted dwellings also listed on the Heritage Register and beyond that, on the east side of Avenue Road, other low profile buildings that continue around and along the north side of Davenport Road (which, as indicated back onto the lane above the residential dwellings on the south side of Pears Avenue, and is to the rear of Davenport Terrace—142-202 Davenport Road).
32] It is unnecessary for the purpose of this Decision to review the remainder of the surrounding context and the Tribunal has received the benefit of detail from the various witnesses, which was contextually considered during the site visit.
33] As height is an issue, it is of relevance to note those developments in the surrounding area with increased heights, as they are of assistance to the Tribunal in the analysis of the proposed height of the proposed development. All buildings are within close proximity to the Site. They are, with their noted heights and storeys, as follows:
a) just west of the intersection of Pears Avenue and Avenue Road, on the north side of Pears Avenue, is the development at 128 Pears Avenue, known as “The Perry”; (11 storeys plus wrapped mechanical, and 39.65 m in height);
b) west of the Pears on the Avenue building mentioned above, are two developments. The first is a 25-storey residential building built in1969, which is now to be replaced with a new development lying between Davenport Road and Pears Avenue and known as the “AYC Condos” at 250 Davenport Road; (27 storeys; 92.2 m including mechanical);
c) farther west from AYC Condos, on Davenport Road, at 314-326 Davenport Road, “Designers Walk” has been approved; (at 22-storeys, and 79 m including mechanical);
d) south of the Site, on the east side of Avenue Road, south of Davenport Road, is 151 Avenue Road, the “DASH”; (10-storeys and 37.7 m inclusive of mechanical);
e) south and east of the Site, on the south side of Davenport are three developments, one of these is 128 Hazelton Avenue; (9 storeys, and 37.9 m including mechanical);
f) adjacent to 128 Hazelton Avenue is 133 Hazelton Avenue; (9 storeys and 36 m including mechanical);
g) and adjacent to 133 Hazelton Avenue is 181 Davenport Road; (12 storeys and 42.7 m including mechanical).
34] From the perspective of transportation and transit the Site has close proximity to transit with two Toronto Transit Commission subway stations within walking distance – Rosedale Station on the Yonge line and Bay station on the Bloor-Danforth line. This is in addition to two surface transit routes described in the evidence. It is established that although the Site may be within a major transit station area, the City has not yet delineated the boundaries of either of the two subway stations as major transit station areas.
35] With respect to the adjacent streets, Pears Avenue, as indicated, is a dead-end street with permit parking on the south side and limited 1-hour parking on the north side. Avenue Road is a two way, six-lane Major Arterial road with a right-of-way width between 23 m and 24 m. The nature of the signage and stopping, parking and loading restrictions on the east side of Avenue Road as it extends along the proposed building will be further addressed in the analysis of the evidence relating to parking, loading and traffic.
THE PLANNING AND POLICY CONTEXT
36] The Tribunal received the testimony and planning opinions of both Mr. Smith and Mr. Friedrich who reviewed the policy framework that applies to this Development. The other witnesses also supplemented this evidence with identification of the other urban design and built-form policies.
37] The policy review has included Policies 1.1.3.3 and 4.7 of the 2014 PPS. There was little contention as to the application of the Provincial policies relating to intensification and the well-cited identification in the PPS of official plans as the most important vehicle for implementing the PPS.
38] Similarly, the application of the policy framework in the 2019 Growth Plan was also reviewed. Again, at this higher policy level, there is little dispute as to matters of conformity of the proposal with the Growth Plan as the subject Site is acknowledged as being within a strategic growth area appropriate for intensification given its location in the Downtown urban growth centre and the Mixed Use designation. As the Growth plan defines a “major transit station area” the Site may also be within the radius of such areas, being within a 650 m radius of the Bay subway station and a 700 m radius from the Rosedale subway station. The matters of intensification and optimization as addressed in the PPS and the Growth Plan were raised in the evidence and are discussed below.
39] With respect to applicable local policies in the City’s OP and related planning policies:
a) the Site is located in the “Downtown” on the Urban Structure mapping of the OP, which is identified as an area for employment and residential growth;
b) the Site is designated as “Mixed Use Areas” in the OP and an area expected to accommodate the City’s increased growth.
c) as the evidence unfolded in the hearing, it became clear that the built-form policies within s. 3.1.2 of the City’s OP were perhaps the most relevant to the determination of the issues, and these are discussed further below;
d) the Site is also subject to the policies contained in Site and Area Specific Policy 211 (“SASP 211”). These are also discussed below;
e) the Site is adjacent to, or in proximity to, the “Ramsden Park Neighbourhood” and the “Davenport Terrace Area of Special Identity” which calls into play those policies applicable to proximate development;
f) the City’s Secondary Plan for the Downtown (“Downtown Plan”) was enacted a year and a half after the Application was submitted, and the Site is within “Mixed Use Areas 3 – Main Street” under that plan. Pears Avenue is the dividing line in this area, under the plan, and properties on the north side of Pears Avenue, on both sides of Avenue Road are “Mixed Use Areas 4 – Local”), Under the transitional provisions that apply to the Downtown Plan, it is not applicable, but nevertheless, has been addressed by the planners in their evidence.
40] With respect to zoning, the Site is zoned as “CR T2.0 C2.0 R2.0” under the in-force Zoning By-law No 438-86, as amended. The maximum permitted height is 14.0 m. and a GFA of 2 times the lot area for residential uses. The CR Mixed Commercial-Residential zone allows a broad range of residential and non-residential uses or a combination. The City’s new harmonized by-law, as it is in-force, would affect only a portion of the Site and would not affect 189 Avenue Road and as it does the remainder, is similar, as it would be zoned, to the current in-force Zoning By-law No. 438-86.
41] With respect to the applicable zoning standards, the various performance standards were reviewed by the witnesses in the hearing as the built-form and design were examined and considered in the opinions of the experts.
42] Finally, the determination of the issues in relation to policy also brings into play those applicable design guidelines. The Bloor-Yorkville/North Midtown Urban Design Guidelines of the Toronto Urban Design Guidelines (“Bloor/Midtown Guidelines” or “Urban Design Guidelines”) (Tab 8) apply as the Site is within the “Avenue Road Corridor”.
43] Given the built-form proposed, the 2010 Mid-Rise Buildings Performance Standards (“Mid-Rise Guidelines”) (Tab 9) that were set out in the 2010 Avenues and Mid-Rise Buildings Study have also been considered by the witnesses. The applicability of the Mid-Rise Guidelines was addressed by the experts in the hearing. Given that the Site is not on a designated “Avenue” under the OP, and that the building exceeds the equivalency ratio relative to the width of the Avenue Road right-of-way, these Mid-Rise Guidelines arguably do not technically apply. However, in April 2016 an Addendum was approved by Council that had the Mid-Rise Guidelines, supplemented by an Attachment (Tab 13), apply to any site designated as Mixed Use Areas fronting onto Major Streets with planned rights-of-way at least 20 m wide, where mid-rise development is supported. The applicability of the Mid-Rise Guidelines was not agreed upon by the parties, but it is the Applicant’s position that this Development appropriately considers the performance standards to the extent required when considering the existing and planned context.
ANALYSIS OF THE EVIDENCE AND FINDINGS
The “Journey”, the “Route” and the “Destination”
44] The Applicant, in the opening of this hearing, and again in closing, made what can be considered figurative or metaphorical references to the planning and urban design considerations at play in this proposed Development. Applying travel or “journey” metaphors to this Appeal, the Applicant submits that there is more than “one way to get to where you are going” and that as long as we reach the correct destination, the road or path travelled to get there, even if it is a different and alternate route, can nevertheless be appropriate. Under the Applicant’s submitted approach, the planning policy framework is the destination, and the Urban Design Guidelines and performance standards are the means to “getting there”. Applying the metaphor, or perhaps, the analogy, urban design and matters of interface, shadow, height, setbacks, and other design standards may provide alternatives to the usual “route” but still arrive at the ultimate point of achieving consistency and conformity with policy.
45] The City rejects the Applicant’s metaphorical lens and submits that the ultimate “destination” is the Site itself, and what is a good and proper development on that Site. From the City’s perspective we reach that end through adherence to planning policy as such policy is guided by the standards and Urban Design Guidelines. These guidelines and urban design standards are, the City argues, not mere “suggestions” as to the route we take to arrive at “good buildings” that function well for the Site, and are appropriate for both the residents of the Site, and those that suround the Site. For the City, these guidelines are instead the fundamental implementation directive tools that ensure we get to what is good development, and stay away from what is not good development, in the implementation of planning policy.
46] With the evidence presented in this hearing, and the unique characteristics of the proposed Development, the Tribunal would view the opposing figurative approaches and metaphors advanced by the parties as somewhat helpful but in some respects, imprecise. The appropriate analytical approach to the evidence described by the parties may ultimately amount to the same thing at the end of the day. The destination, in the Tribunal’s view, is a development that represents good planning in the public interest that adheres to the requirements of consistency and conformity to provincial and local policy as we know them, in compliance with the Act. Planning policies are the established roadmap to good planning since the proposed Development must itself represent good planning, and achieve consistency and conformity with those policies. The various guidelines and standards for urban design, as they implement policy, provide exactly that—guidance to the consideration and application—the navigation if you will, of planning policy in order to reach the ultimate destination.
47] On the evidence presented in this Appeal, and as the Tribunal “finds its way”, the questions to be considered are: Has the manner in which the Development has been designed, within its context, deviated too far from the OP design, development and built-form policies as they are guided by the urban design and built-form performance standards and guidelines such that it does not achieve consistency and conformity to urban design, built-form, development and planning policies? Or alternatively, does the Development’s unique character and design elements (such as the articulation, terraces, living vertical forest, height, and set-backs) result in a deviation from certain urban design guidelines for built-form that is indeed different, but still “ends up” arriving at a Development that is consistent with, and conforms to, applicable planning policies and represents good planning?
Higher Order Policy – The PPS and the Growth Plan
48] There is little regarding the higher order levels of Provincial Policy, within the PPS and the Growth Plan that has been seriously contentious in this hearing, aside from the thorny issue of “optimization”, based on the Growth Plan, and a differing approach by Mr. Friedrich, to the issue of consistency and conformity in relation to built-form and development policies in the OP.
49] All of the experts and the parties agree that the Site, as it is in a strategic growth area and within the City’s designated urban growth centre, in proximity to transit stations, is appropriate for intensification and redevelopment. Also, not at issue, and noted in the evidence, was the often-cited policy imperative in the PPS that the City’s OP is the most important vehicle for implementation of polices in the PPS.
50] There are two aspects of consistency with the PPS and conformity with the Growth Plan about which the parties, and their respective planning experts cannot agree, and where their approaches diverge.
51] First, Mr. Smith and Mr. Friedrich do not agree upon the manner in which the policies of the Growth Plan address optimization and the prioritization of intensification under the Growth Plan. In Mr. Smith’s view, as optimization and the priority of intensification are provided for within the PPS and the Growth Plan, the Plan creates an imperative of intensification on sites such as this Site in the strategic growth areas. Since such areas are the subject of the policy directions to focus growth where there is existing urban land supply and existing infrastructure and transit, and to create complete communities, the proposed Development represents conformity to such policies of intensification and optimization as they represent and “intensification first” approach to development.
52] Mr. Friedrich, and the City, acknowledge that the Site is appropriate for intensification but place emphasis on the fact that the policies within the PPS and the Growth Plan do not speak to the optimization of a single site, but rather the optimization of urban areas where infrastructure and transit already exist, and the prioritization of intensifications in areas (and not sites) that are appropriate for intensification.
53] The Tribunal finds, as it has before, that Mr. Smith’s receptive approach to optimizing land and infrastructure (and thus density) and the ‘intensification first” priority is appropriate and supported by policy. It is not unreasonable, and indeed necessary, to consider the policies of optimization and intensification as they are identified in the Growth Plan (and the 2014 PPS) as being relevant when the size and high density of development of some larger sites is being considered. However, the Tribunal is not of the view that the intensification/optimization policies and objectives as set out in the Growth Plan, or the PPS, are to be utilized vigorously in every instance, as a matter of course, to justify greater size, mass, density or scale, irrespective of those other important policies which speak to fit, compatibility, transition and good design principles.
54] Given the limited size and the nature of this Development as a “boutique condominium”, the Tribunal cannot necessarily conclude that the question of the ultimate height, design and form of the proposed Development that is now before the Tribunal is significantly influenced by such optimization and intensification policies. Some limited manner of optimization, intensification and redevelopment are certainly appropriate, and upon the evidence, will be achieved if the Development is approved as proposed, or, equally so, if a modified development, reduced in scale or design to achieve better transition, is ultimately needed and approved. The Tribunal cannot, however, find that optimization and intensification polices in the Growth Plan, in and of themselves, operate to justify the approval of a Development of this nature that may be excessive in height, or may fail to adhere to built-form policies and Urban Design Guidelines that inform those policies, particularly where the nature of the intensification, upon a moderately sized parcel of land, does not achieve significance in terms of density. There are only 20 units in this building.
55] The Tribunal prefers the evidence of Mr. Friedrich on this point, and cannot conclude, on the facts of this Appeal, that these policies in the PPS or Growth Plan are of significant relevance to the real issues in dispute—transition, scale, massing, and compatibility. At the same time, the Tribunal wishes to clarify that, as a matter of common sense, in the application of the provincial intensification and optimization policies to smaller sites such as this, once the appropriate size and scale of the built-form of the Development is determined, such that it represents a compatible Development that provides transition in its design to the low-rise residential neighbourhood to which it abuts, there will be effective intensification of the Site, and optimization of infrastructure. On the evidence presented, the Development will thus achieve consistency and conformity with those higher order provincial policies when conformity with the local planning policies is achieved.
56] The Tribunal however is unable to accept Mr. Friedrich’s summary conclusion that the Development as proposed does not have regard to s. 2(p) and (r) of the Act and is therefore inconsistent with the PPS. Frankly, the Tribunal has some difficulty understanding Mr. Friedrich’s final planning opinion in this regard. Mr. Friedrich asserts that the OP is the most important vehicle for implementation of the PPS, including the identification of areas appropriate for intensification—a policy imperative that is not disputed and is readily accepted by the Tribunal (and now highlighted in the preamble of the 2020 PPS). Mr. Friedrich, upon this premise, somehow concludes that, ergo, as the proposed Development does not conform to design, built-form, and development policies of the OP, that the Development is thus inconsistent with the policy outcomes of the PPS.
57] The Tribunal finds this approach difficult to accept must agree with Mr. Smith’s opinion that the Development in its proposed form, and its located designation in the OP, has regard to both these identified section of the Act and is consistent with the policies of the PPS. The urban design and built-form issues are properly matters addressed in the City’s OP and related policies and are not matters that give rise to inconsistency with the PPS. A proposed development may achieve consistency with the PPS, and conform to the higher order intensification, optimization and development policies in the Growth Plan, but fail to conform to the local planning policies which more specifically deal with the site-specific development and design issues that are addressed in the OP.
58] Similarly, the Tribunal prefers the evidence of Mr. Smith and the submissions of the Applicant on the matter of conformity to the Growth Plan as it was amended in 2019. With the removal of reference to achieving “the desired urban structure”, and as the Growth Plan speaks to transition from strategic growth areas to adjacent areas, and not transition within a strategic growth areas, the Development, as proposed, conforms to, and does not conflict with, the policies of the Growth Plan that relate to urban structure or transition.
59] To deal with the submissions of the parties, it is the view of the Tribunal that both the Applicant on the one hand, and the City and ABC, on the other, overstate the matter of how consistency with the PPS and conformity to the Growth Plan are impacted by the focused examination of the OP policies relating to built-form, height, mass, scale, etc. Any good development proposal in an existing urban area, as it will improve an underdeveloped site, and likely increase density and make efficient use of municipal infrastructure, and take advantage of proximity to transit, will most likely achieve consistency and conformity with the Province of Ontario’s higher order policies relating to intensification, optimization and intensification first approach. There may, in some cases be matters of degree, on the facts of an appeal, that may affect consistency with the PPS or conformity with the Growth Plan: i.e. where a site’s potential for intensification and optimization may be better achieved due to various factors such as a site’s location or substantial size, where it is able to accommodate greater density, but seriously fails to do so.
60] It is the OP that then addresses matters of compatibility, transition to lower-rise residential neighbourhoods and parks, and the “nitty gritty” aspects of height, mass, scale, articulation, terraces, set-backs, step-backs, immediate context and consideration of impacts. Those built-form and urban design issues are matters of conformity with the local planning policies, If the Development fails to meet the urban design and built-form policies of the OP, and specifically, if there is insufficient transition because it is too high, or too big, or incompatible, this does not, as a matter of course, create inconsistency with the PPS or non-conformity with the broader policies of the Growth Plan that relate to intensification. The Applicant may be overreaching in the scale of the redevelopment, but it nevertheless would achieve consistency and conformity with the higher order Provincial Policy.
61] Equally so, if, as the Development’s built-form might eventually be approved, if it is determined that there must be reductions or modifications to the height, mass, scale, set-backs, or step-backs, and if there is a necessary and resultant reduction in floor-space, height, or terrace size necessary to meet the required transition to the low-rise neighbourhood, and ensure compatibility, as required by the OP policies, this numerical change in density, units, height or mass and scale of the Development will still conform with the Growth Plan’s policies. The Development will still result in redevelopment and intensification of the Site with the introduction of multiple units, and efficient use of municipal infrastructure, all in proximity to transit, result in conformity to the Growth Plan’s policies that speak to these matters and the fact.
62] To summarize, the Tribunal, upon the evidence, accepts the submissions of the Applicant that the central disputed issues of built-form and urban design in this Appeal are not elevated to the level of the higher order policies of the PPS or the Growth Plan. The Tribunal finds that the Development, as proposed, or as it must be modified as directed by the Tribunal in accordance with this Decision and Order, and as it will result in a mixed-use multi-unit residential building in some form, has regard to the enumerated matters in s. 2 of the Act, is consistent with the 2014 PPS and conforms to the Growth Plan.
63] This analysis and finding is not altered by the amendments to the 2020 PPS and the same analysis applies. The 2020 PPS will have come into effect on May 1, 2020, since the hearing of this Appeal was completed. The Tribunal has already noted that there are, upon the whole of the evidence, no real high-level issues arising from provincial policies in the PPS in this Appeal. To the contrary, there has been universal recognition as to the appropriateness of the Site for intensification and redevelopment. The Tribunal has carefully reviewed the evidence of the planning witnesses as it related in a very limited manner to the question of consistency with the PPS policies in effect at that time. The Tribunal has also considered the revisions to the PPS in effect as of May 1, 2020.
64] The Tribunal is satisfied, and finds, that the proposed development as it would be enabled by the ZBLAs, is also consistent with the 2020 PPS, as it would be consistent with the 2014 PPS. For the reasons that will follow, for clarity, the Tribunal is also satisfied that the proposed development as it might be approved as modified and governed by the findings and Order of the Tribunal in this Decision would also be consistent with the 2020 PPS, as it would be found by the Tribunal to be consistent with the 2014 PPS.
65] It remains to delve into the more challenging determinations relating to height, loading, traffic and parking, shadow and the matter of conformity with the OP and related policies, guidelines, and standards, as they address height, built-form and urban design. It is these matters that lead the Tribunal to determine that modification of the Development is required for approval.
Height
66] Height in context, in and of itself, is not ordinarily segregated as an issue and determined in isolation from the building’s built-form design and its mass, scale, set-backs, step-backs etc. The various built-form and development policies, aided by the guidelines, consider height as part of the holistic process of examining the manner in which the Development’s proposed built-form transitions to, and is compatible with, the lower scaled residential neighbourhood and nearby park, and matters of impact are examined, the height of the building.
67] Understanding the need to also examine height in relation to shadow and impacts, and the many policies and guidelines that examine compatibility and transition, as argued by the City and ABC, the Tribunal will nevertheless first consider the issue of overall height, in the existing and planned context of the area.
68] The City and ABC submit that the building proposed is too high. In Mr. Friedrich’s opinion, SASP 211, and the policies of the OP, requires transition in the height of buildings from the Height Ridges down to the generally lower and mid-rise context of the Bloor-Yorkville/North Midtown Area. As the Mid-Rise Guidelines apply to dictate a maximum height equal to the 23 m or 24 m width of Avenue Road, Mr. Friedrich is of the view that the 38.95 m height exceeds the maximum height by almost 16 m and represents a ratio of 1:7 instead of 1:1. Mr. Spaziani’s opinion is also that the building is incompatible with the prevailing height regime, given the imbalanced ratio relative to Avenue Road and the 20 m wide right-of-way of 20 m on Pears Avenue and is properly categorized as a tall building.
69] It is the view of the Tribunal that the opinions advanced by Mr. Friedrich and Mr. Spaziani are too heavily reliant upon the guideline ratios in the standards, rather than the broader policies relating to context, and ignore the Development’s proximity to other approved and existing mid-rise and high-rise buildings and the Site’s location on Avenue Road. In this respect the Tribunal prefers the opinion evidence of Mr. Smith which more reasonably focuses on the building’s existing and planned context.
70] This is, in the Tribunal’s view, consistent with the policy regime relating to height as provided for in SASP 211 in the City’s OP (Tab 4). Those policies, utilizing Map 2, identify the Height Peaks along Bloor Street West, Yonge Street, Bay Street and Avenue Road, relative to the identified low rise areas, and direct transitions in height away from the Height Ridges, northerly, along the “in-between” areas along the north part of Avenue Road, Davenport Road, Yonge Street and Pears Avenue, inclusive of the Site (but excluding that portion of Pears Avenue, east of the Site). Mr. Smith, in his evidence provided an overview of the various existing and proposed buildings such as the Pears on the Avenue, The Perry, DASH, Designers Walk, and the three developments on the south side of Davenport Road, on either side of Hazelton Avenue, that are at heights clearly consistent with the policy regime as to height set out in SASP 211.
71] A comparison of Map 2 in SASP 211 of the OP (Tab 4, page 123) with the map of “Nearby Developments” (Exhibit 2, page 5) reviewed by Mr. Smith aptly demonstrates the reality of the existing height context as it conforms to the identified planned contextual transition in height. Those policies provide for transitions of density and scale towards the boundaries of the Bloor Yorkville/North Midtown Area, a transition which is identified as reinforcing “the diversity of built form and use”, while fostering the stability of the Neighbourhoods, and minimizing conflicts between mixed-use and residential areas. The heights of existing and approved heights, including The Perry and DASH, to the west and south of the Site indicate that the policies relating to height, scale and density are being consistently applied.
72] In the Tribunal’s view the proposed height of the Development, is thus not inconsistent with the existing height context or the planned height regimes in the OP and prefers, and relies upon, Mr. Smith’s opinion that the building height conforms with the policies and planned height framework set out in SASP 211. Mr. Smith concludes that the height is appropriate due to the built-form context within the Avenue Road and Davenport Road corridors, in which the Site is situate, and which demonstrates a mixture of both tall and mid-rise buildings of similar heights, or taller. When considering the key policy imperatives that the Development “fit” and be “compatible with” the existing and planned context, in relation to height the Tribunal finds that it is.
73] Accordingly, the Tribunal’s analysis of the evidence begins with this finding as to “pure” overall height, and concludes that the proposed height of the Development at 38.95 m, is in good company with The Perry, at 39.65 m, down the street, conforms to the City’s OP, and the SASP 211 policies, and is compatible and appropriate as it is situate in the immediate existing and planned context, on Avenue Road, in the Bloor Yorkville/North Midtown Area.
74] To return to the point made at the outset of this section, it remain necessary, however, to examine the built form as a whole, inclusive of that overall height, to examine transitioning to the adjacent low-rise residential Neighbourhood, in terms of the Development’s mass, scale, angular planes, step-backs and set-backs and matters of impact as to shadow and privacy and overlook. While the overall height of the Development, in and of itself, may be appropriate in the broader existing and planned context, this does not in any way necessarily determine whether the building can, or should achieve that height, throughout the entirety of the built-form, when considering and applying the other identified policies relating to transition, scale and fit and the other policies relevant to built-form, transition and those guidelines which assist in applying those policies. Those policies that speak to stepping down of heights towards low-rise areas may practically require a reduction of the height within the design to achieve that step-down or angular plane. In that regard, the guidelines and performance standards are all still in play.
Loading, Parking, Traffic
75] The City has not opposed, and takes no issue with, the parking numbers or loading and traffic related matters. ABC, through Mr. Tedesco’s evidence (and that of the Participants) objects to the Development’s parking and lack of attention to loading and traffic.
76] The existing ZBL standard would require a total of 20 parking spaces, while the harmonized ZBL would require a minimum of 18 and a maximum of 27. The Development will provide 45 below-ground parking spaces accessed through a garage door on the east laneway, 43 of which will be resident parking for the 20 units, with two spaces available for visitors.
77] Clearly the provision of over two parking spaces per unit represents a high order of supply which Mr. Smith indicates is, in his view, not unusual for a luxury boutique condominium such as the Development. Mr. Tedesco did not raise any real issue with the number of parking spaces, addressed the matter of calculating traffic volumes relative to parking spaces, and provided comments regarding parking maximums but conceded that there would be only modest traffic generated by the Development.
78] The Tribunal finds that the Development’s provision for parking raises no concerns for the Tribunal.
79] Much of the focus of the evidence in relation to loading and parking, was in relation to the requirements for loading and the absence of any loading document planned for the Development. It is not disputed that technically, under both the in-force, and harmonized ZBLs, there is no requirement for a loading space where the number of dwelling units is less than 30, or a retail store or restaurant is in the development which is less than 500 sq m.
80] Relying upon Policy 3.1.2.2 of the OP, Mr. Tedesco is nevertheless of the opinion that the Development will result in adverse traffic impact as a result of the absence of any loading facility, either a Type B or Type G, in the design. The absence of any loading area is compounded by the fact that there is a no-delivery zone on Avenue Road, and that the Commercial Loading Zone cannot be used between 3 p.m. and 7 p.m. Mr. Tedesco’s principal argument in support of the need for a loading area is that the intent of the ZBLs is to eliminate the imposition of an onerous requirement for a small site with few regular-sized units, and that in the circumstances here, because the larger Site and the number of large-sized units is not “typical”, Mr. Tedesco concludes that a loading facility can and should be accommodated in the building’s design. Mr. Tedesco’s other worry is that a subsequent minor variance or rezoning could increase the number of units above 30, and thereby circumvent the requirement/need for a loading facility.
81] The focus of concerns of ABC, as covered by Mr. Tedesco’s evidence relates to the adverse impact that the absence of a loading facility will have on the laneway which is high-volume and of significance to the residents and occupants of Pears Avenue and Davenport Terrace. Mr. Tedesco went through a variety of scenarios which would result in the obstruction of the dead-end laneway and blocking the ability to unload for deliveries.
82] The Tribunal has considered the evidence provided by the planners and the experts in transportation and traffic, Mr. Tedesco and Mr. Krossey, including the interpretive differences as to whether subsection (10) of section 220.5.10.1 of ZBL No. 569-2013 creates an exception requiring a loading dock, because the Site is in excess of 1,000 sq m and the interpretive differences as to the impact of the restrictions on loading, stopping and parking on the adjacent streets.
83] The Tribunal has also considered the concerns expressed by Ms. Chaudry, Ms. Pratt and Mr. Wagner in relation to their concerns relating to the use of the laneway and apprehensions regarding trucks attending to the Development.
84] The Tribunal prefers the overall opinions of Mr. Krossey on the subject of loading, rather than the views expressed by Mr. Tedesco based on his interpretative analysis of the ZBLs, and a variety of apprehensions relating to future applications for minor variances, enforcement, and the possible behaviours of delivery staff, that are not really supported by the evidence. The three non-expert witnesses echoed the various apprehensions regarding lane usage, and the inclinations of those persons driving delivery vans and trucks. The City, on its zoning review, and more so, in the course of the intensive examination of the proposed Development, has determined that the loading facility is not warranted. The City appears to have no difficulty with the practical availability of trucks to both load and unload and deliver. There are only 20 units in the building and more limited demands for use, and very limited number of move ins/move outs, will not change regardless of the size of the units. The Tribunal does not consider the finely-honed dissection of the identified zones on Avenue Road, and the argument as to whether a pizza is “delivered” or “unloaded”, to sensibly alter the reality as to how the identified stopping zones on Avenue Road will serve the Development. The apprehensions regarding the now significantly enlarged laneway and its use are not really borne out by the evidence and give no credit to the management of deliveries by the Applicant’s on-site management and scheduling of loading operations, or the availability of loading space in the area, inclusive of the designated lay-by space and the underutilized loading zone on Avenue Road, capable of servicing the Site.
85] The Tribunal accepts the opinions provided by Mr. Krossey and finds that neither a Type B or Type G loading space is required, as a matter of function or planning policy or zoning standards, given the nature and character of the Development. The Tribunal finds matters of access, service areas and parking, inclusive of loading requirements, have been provided for so as to sufficiently minimize any impact of the operational and functional aspects of the Development relative to adjacent streets. In the Tribunal’s view, the enlarged laneway, adjacency to Avenue Road and Pears Avenue, and the building’s design have sufficiently integrated services and utility functions. Accordingly, the Tribunal finds that the Development will conform to Policy 2.1.2.2 of the City’s OP.
Shadow
86] Before delving into the built-form policies, matters of urban design and the matter of transition and fit, the Tribunal will also first consider the matter of shadow as it has been modeled based upon the proposed design now before the Tribunal.
87] Shadow impacts for this Development are subject to the OP and SASP 211 policies that direct that this Development “adequately limit” shadow impacts on adjacent Neighbourhoods and nearby residences, particularly during the spring and fall equinoxes, and maintain sunlight for pedestrians on adjacent streets, and open spaces. Shadows on parks must be minimized to ensure their utility.
88] On the whole of the evidence, neither the City’s evidence, nor ABC’s evidence raised serious objection to the incremental shadow impact of the Development. The shadow studies introduced by the Applicant and the City (Exhibits 9 and 15) demonstrate that only marginal shadow will move over the extreme south east corner of the entrance to Ramsden Park.
89] As for the residences to the east, due to the shadows cast by the Pears on the Avenue building to the west, incremental shadows cast in the spring and fall equinoxes from the Development were limited in area, limited to the late afternoon, and passed briefly through the neighbourhood. Mr. Smith also noted that as the shadows moved over the residences to the east, the covered area was, for the duration of coverage, on the rooftops of the residences.
90] Mr. Smith’s opinion was that such additional shadows beyond what already existed as a result of existing structures, were adequately limited in the adjacent streets and residences, and sufficiently minimized over Ramsden Park such that they did not affect the utility of the Park. Although initially expressing some concerns, Mr. Friedrich conceded in cross-examination that it was something that was acceptable, noting that reductions in height and massing would have a corresponding reduction in shadow. Mr. Spaziani expressed a similar view, that the incremental shadowing was not necessarily unacceptable but noting that shadowing would be further reduced if the height, massing and scale were reduced.
91] The Tribunal finds that as the Development is proposed, shadowing will be adequately limited on the adjacent residential neighbourhood and sufficiently minimized over Ramsden Park such that it will not adversely affect the utility of the Park. To the extent that the built-form’s massing and scale may be further modified (to a lesser, and not greater, extent), obviously any such changes to reduce the size and scale may result in a reduction in shadow such that the finding of the Tribunal would not change.
The Specifics of the Local Planning Policy Lens
92] The focus of this hearing has been on the specific context of the Development as it is located on Pears Avenue immediately to the west of a residential neighbourhood and across from Ramsden Park. There is little dispute as to the applicable planning policies that are to be considered and applied when considering whether the Development is appropriate in that context. The policies collectively express in different ways matters of compatibility, context, transition, patterns of height, the public realm, urban design, and the limiting of shadow, wind and privacy impacts. In viewing the proposed Development against these planning policies, the lens is further focused on matters of height, transition, mass and articulation, shadow, and privacy overlook.
93] The salient policies identified and considered by the witnesses in the evidence can be distilled down to a number of commonly expressed policy directives which focus on transition, compatibility and impacts as the Development will exist in the immediacy of its location adjacent to the residential neighbourhood to the east and Ramsden Park. These policies that have been considered by the Tribunal, can be condensed as follows:
a) Policy 2.3.1 of the OP addresses Healthy Neighbourhoods and requires that development in growth areas “…demonstrate a transition in height, scale and intensity as necessary to ensure that the stability and general amenity of the adjacent neighbourhood areas are not adversely affected.” More specifically, Policy 2.3.1.3 provides that the Development as it is adjacent to a Neighbourhood must: be “compatible with those Neighbourhoods”; “provide a gradual transition of scale and density, as necessary to achieve the objectives of [the OP] through the stepping down of buildings towards and setbacks from those Neighbourhoods”; and maintain adequate light and privacy for residents in the Neighbourhoods.
b) The Built Form set out in Policies 3.1.2.1 through 6 of the OP apply to the design of the Development and specifically Policy 3.1.2.3 provides that the Development must be massed and its exterior façade designed to “fit harmoniously into its existing and/or planned context and will limit its impact on neighbouring streets, parks, open spaces and properties” through adherence to six policy sections relating to massing, transitions in scale, light and privacy, and shadowing.
c) The policies in 4.5.2 applicable to Mixed Use Areas similarly support the transition and scale policies requiring that new buildings be located and massed to provide transition between areas of different development intensity and scale, as necessary to achieve the objectives of the Plan, through “means such as providing appropriate setbacks and/or stepping down of heights, particularly towards lower scale Neighbourhoods”.
d) SASP 211 relating to the Bloor Yorkville/North Midtown area apply to this Development specifically as it includes and refers to the Ramsden Park Neighbourhood. There are a number of relevant policy statements. “Developments on sites near [Ramsden Park Neighbourhood] will be designed with sufficient setbacks and transitions in scale, through means such as angular planes and step-downs in height, to adequately limit shadow, wind and privacy impacts upon nearby residences and the public realm.”
e) In SASP 211, as this Development is located on Avenue Road, it is intended to have lower heights than areas in the Height Ridges to the south along and near Bloor and Yonge Streets but, in the immediacy of its location adjacent to the low-rise residential neighbourhood to the east, its scale “should be compatible with the adjacent neighbourhoods” and “should be of a lesser scale and contextually appropriate and compatible with the adjacent low-rise areas.” It is also required to be “designed to adequately limit shadow, wind and privacy impacts upon these lower-scale areas through distance separation and transitions in scale including means such as angular planes and step-downs in heights”.
f) SASP 211 sets out an objective for urban design: “New buildings will achieve a harmonious relationship to their built form context through building height, massing, setbacks, roofline and profile architectural expression as well as sensitively integrated vehicle access and loading”. To assist in meeting the objectives of the plan and the area specific policies, SASP 211 provides that the Bloor-Yorkville/North Midtown Urban Design Guidelines will be used “to provide direction for reviewing development applications in this area” and are to be read in conjunction with other urban design policies in the OP.
94] Also discussed in the evidence is the Secondary Plan for the Downtown (“Downtown Plan”) which was enacted some 18 months after the Applicant’s Application was submitted, but which states that it is not applicable to applications that were completed prior to its approval.
The Guidelines
95] The Tribunal has heard considerable evidence relating to the various guidelines and performance standards that have been considered by the witnesses in assessing the Development. They include: the Bloor/Midtown Guidelines referenced above and the Mid-Rise Design Guidelines and Performance Standards.
96] The Bloor/Midtown Guidelines (Tab 8) echo the policies of the OP with respect to the Avenue Road Corridor. Section 3.1.8 of these Guidelines recognize that development in the corridor is proximate to low-scale residential neighbourhoods on either side and that special consideration should be given to impacts. The first specific guideline is that Mixed Use Areas development will “locate and mass new buildings to provide a transition between areas of different development intensity and scale, particularly providing setbacks from and stepping down of heights towards lower scale Neighbourhoods.” The Built-form guidelines in the Bloor/Midtown Guidelines also recognize the stable and established low-rise residential area to the east of the Development as particularly sensitive to dramatic change and provides that development in adjacent areas (i.e. on the Site) “must ensure no adverse impacts on these residential areas”. Under these Guidelines no specified built-form angular planes apply to the Site.
97] The Mid-Rise Guidelines were addressed differently in the evidence by Mr. Smith, then as considered by Mr. Spaziani and Mr. Friedrich. Mr. Smith’s view is that the policies of the OP which focus on context and the fit and compatibility of a development in its immediate surroundings means that the Mid-Rise Guideline performance standards cannot be strictly applied to a building with a mid-rise typology on this Site without consideration of the site context. For Mr. Smith these, and all guidelines, are a useful tool to translate policy into building design, and can be used in the evaluation, but they do not represent an exhaustive list that precludes other design responses and the building need not follow them with precision. Height, massing, and scale must conform to policy and not the guidelines. Mr. Smith has noted that achieving excellence in design is of significance and that the Mid-Rise Guidelines recognize that exceptions are warranted to the performance standards when it can be demonstrated that the development is striving for excellence in design and that a specific guideline/performance standard is not appropriate in that instance.
98] Mr. Spaziani and Mr. Friedrich opine that the Mid-Rise Guidelines, and each of the Performance Standards, should be considered in order to achieve conformity with the OP policies. Of particular importance is Performance Standard No. 5B which deals with rear transition to Neighbourhoods for shallow properties. In that case there is to be “a minimum setback of 7.5 m from the property line and a 45-degree angular plane from a height of 10.5 m above that 7.5 setback line to a maximum height of 1:1. This provides a lower building at the rear and a gradual transition form the rear property line.” Performance Standard No. 5B expressly provides for a situation, such as in this case, where a public laneway abuts a site, the laneway can be included for the purposes of establishing the setback and the angular plane.
99] It is noted in the evidence, and a finding of the Tribunal, that none of the other nearby developments forming the existing context, as identified in this Decision, complied precisely with the Performance Standard No. 5B, as none of them achieved the 7.5 m setback and none remained below the 45-degree angular plane, and none were restricted to that maximum height/right-of-way ratio standard.
Compatibility, Transition in Scale – The Design - Step-backs and Angular Plane
100] These issues of compatibility, transition in height and scale, and the practical manner in which the design of the built-form addresses the policies outlined above, as also addressed in the Guidelines are, by process of elimination, the remaining, and most contentious issue, between the Applicant, and the City and ABC.
Analysis – South, West and North Façades of the Development
101] At the outset of the examination of these design and transition/compatibility issues, the Tribunal must make clear that it finds that the manner in which the building relates to the south, west and north sides of the proposed Development, which respectively are adjacent to the commercial low-rise structures to the south on Avenue Road, to Avenue Road to the West and Pears Avenue to the north are not, upon all of the evidence, of concern. As the Tribunal has considered the evidence, the opinions of the witnesses, and examined the comparative analysis of other nearby developments, the Tribunal finds that the over-all function, form, set-backs and step-backs, as they are expressed in the intricacies of the south, west and north façades, are appropriate and conform to the policies in the OP and the design guidelines. This finding as to these three sides is concurrent with the finding as to the appropriateness of the overall height of the building.
102] Generally, the design of the building does, as Mr. Smith opined, establish a good relationship with Avenue Road, and Pears Avenue as it is located at the intersection of these two streets, and given the performance guidelines that apply. The building has utilized setbacks, terracing and façade modulation that creates good transition to the public realm and nearby developments on the north and west sides. The Development maintains more than adequate separation distances and building orientation to the west and north due to the street widths and to the south, with window and private amenity space locations which adequately addresses privacy and overlook concerns. The manner in which the south, west, and north façades each maintain a good relationship to the surrounding mid-rise and low-rise context is in keeping with the surrounding pattern of development and redevelopment along Avenue Road. The Tribunal accepts these opinions as they relate to these three sides of the Development.
103] Generally, the Tribunal accepts the opinions provided by Mr. Smith and finds that the Development appropriately frames both Avenue Road and Pears Avenue street frontages, improves the pedestrian realm and appropriately introduces grade-related increased height commercial space that frames the heritage façade of 183 Avenue Road and improves the animation of the street. As the Developments interacts with Avenue Road and Pears Avenue, it is contextually appropriate and presents as a high-quality mid-rise typology building that is indeed architecturally distinctive. The Tribunal is of the view that the manner in which the articulation of these three sides of the building is presented, as it facilitates and creates vegetative elements and green space in the vertical space above, is distinctive, well-suited to the location, and represents an unusual and positive insertion of mature vegetation into the streetscape and the building’s aesthetics.
104] The Tribunal has considered the evidence and the opinions expressed by the planning and urban design experts called by the City and ABC. The Tribunal has considered, and made its findings in relation to, the separate matters of height, shadow, traffic, parking and loading, and the opinion evidence heard in regards to the issues arising in respect of those issues. Otherwise, with respect to the overall design of the Development and matters of built-form, urban design, set-backs, step-backs, height, mass, scale and transition, generally the evidence of the City and ABC, as it relates to these matters of built-form and transition and compatibility that are in contention, have focused on the east side. The primary concerns relate to the failure of the Development to address those planning policies, as guided by the performance standards contained in the Guidelines, relating to the adjacent residential neighbourhood to the east.
105] In the whole of the evidence, where there have been criticisms levied as to those aspects of the design relating to the Avenue Road presence, the south side or north side of the building as it includes the parkland dedication, the Tribunal cannot conclude that there are built-form or design concerns that represent matters of non-conformity with the OP. The Tribunal prefers and accepts Mr. Smith’s analysis of the individual performance standards in the Mid-Rise Guidelines and the Bloor-Yorkville Design Guidelines, and the various policies of the OP, including SASP 211, as they have been identified above and finds that the Development’s design and built-form, excepting those aspects of the east façade addressed below, conform to the relevant City OP’s policies.
106] It is admittedly rather unusual to consider matters of policy conformity in a fragmented and compartmentalized fashion, as is occurring here, with respect to the four different sides of a proposed development. Here the Tribunal is essentially finding that it is relatively satisfied with respect to three of the four sides of the structure, but not the side that abuts the low-rise residential neighbourhood. It is practically possible and necessary, in the Tribunal’s view, to take this approach, based on the evidence presented.
107] The reality is that the concerns that exist for the Tribunal relate almost exclusively to matters of transition in scale, height, compatibility, as they in turn relate to built-form, angular plane and step-back guidelines as they intend to achieve that transition to low-rise neighbourhood to the east of the Development. To put it in simple terms—but for the failure of the east façade of the proposed structure to conform to those various policies relating to the transition in scale and compatibility with the adjacent low-rise residential neighbourhood on the east, the Tribunal would consider, on the whole, that the Development conforms to the identified policies of the OP, and should be approved in light of the Tribunal’s finding on the other matters addressed.
108] The Tribunal now turns to the question of why it is unable to make that “holistic finding” of the Development’s conformity with the City’s OP policies relating to built-form, transition of scale, and compatibility.
Analysis – The East Façade – Transition to the Residential Neighbourhood
109] The Applicant has, through its evidence, and primarily, Mr. Smith’s opinion evidence, submitted that there is appropriate rear yard transition on the east side of the Development that conforms to the OP and the performance standards in the Mid-Rise Guidelines. This is based upon several points and submissions advanced by the Applicant, and include the following:
a) the proposal has evolved considerably from the municipal review process that has resulted in a number of key qualitative changes, including the number of storeys, step-backs, the laneway, and the dedication of the frontage on Pears Avenue;
b) the built form, as described by Mr. Smith, is “complicated”, with terraces that are not continuous, random in placement with a resultant “erosion” of the different elements, with a lot of “movement in and out” and does not lend itself to a simplistic numerical expression of the set-backs;
c) the extent and manner in which the terraces extend from the building face is a key part of the design concept and integral to the overall design that allows for the vertical forest. Irrigation and nutrient delivery, with taller trees suspended in the air, necessitates the deeper terraces;
d) the laneway, with the ground level set-back, and the conveyance to the City, is to be effectively widened to 6.0 m, which thus serves to separate the Development from the closest property line in the adjacent residential neighbourhood;
e) from there, at ground level, the further step-backs results in a minimum distance separation to the east building face of 7.1 m and increasing to 8.5 m and 8.9 m, inclusive of the laneway.
f) the set-back key plans (Tab 23A, page 1076 to 1081) and the north and south Elevations (Exhibit 2, page 16) demonstrate that the separation distance to the building face (i.e. excluding all terraces and balconies) then steps-back a further 1.5 m for floors 3 to 8 in a staggered fashion, and then once more by 3.4 m for the ninth floor.
g) the need for transition is acknowledged as the Development is adjacent to the Neighbourhoods, but Mr. Smith has testified that, as the policy reads, it does not require “transition” in the general sense, or transition for transition sake. The policies, especially the urban design policies, instead speak to purposive “transition that is appropriate in intensity and scale” to achieve the objectives of the OP and achieve compatible building relationships with adjacent areas with no adverse built form impacts that fit harmoniously in the existing and planned context;
h) transition can be achieved with many geometric relationships and a variety of different methods, and Mr. Smith emphasizes that while angular plane is one possible geometric relationship, no mandatory angular plane is required, and neither is it an absolute requirement. In Mr. Smith’s view, slavish adherence to each of the individual Mid-Rise Guidelines, if they do apply, is not what the guidelines or the policies call for. The guidelines strive for excellence in built-form, and if excellence can be achieved without strict adherence to each performance standard, and conform to the built-form policies of the OP, then there can be a good planning result. In this case Mr. Smith’s opinion is that the distinctive design and unique aspects of the Development incorporating the vertical forest, large terraces, and varied articulation achieves excellence, fit, compatibility and a transition of scale and height that is contextually appropriate to the adjacent low-rise neighbourhood;
i) in this case, Mr. Smith indicated, in cross-examination that the transition to be considered in this case is for a development that has a “moderate difference in scale” from the residential dwellings to the east;
j) the Applicant’s position is that the Development’s rear/east elevation is well within the comparative range of the various similar rear-yard transitions approved in the nearby area (such as The Perry, 321 Davenport Road and 126/128 Hazelton Avenue). The various cross-section overlays, presented through Mr. Smith (Exhibit 2, pages 20 to 26) compare the rear elevations of these approved developments with this Development. None of these buildings comply with the Mid-Rise Guidelines and in Mr. Smith’s view the proposed rear yard relationship of the Development with the adjacent neighbourhood is similar to, and in keeping with, the existing and planned built-form context that exists with other buildings in the area.
k) this, Mr. Smith indicates, accounts for the immediate advantage of the Development arising from the additional 6 m setback (the laneway) which serves to create an immediate separation of the Development from the residences to the east. Mr. Smith’s evidence is that while the Development does not follow a 45-degree angular plane, the design does adopt a strategy of moving the massing back. This, he points out, is in keeping with what has been proposed and approved elsewhere. The geometric relationship to the east and the massing, Mr. Smith indicates, is mitigated by the already-mentioned setback arising from the lane, as well as the fact that the terraces facing the neighbourhood are deeper than, by comparison, The Perry, and will have significant tree plantings. These elements, it is argued, mitigate the potential for overlook and privacy;
l) stepping back the east side of the Development beyond the 2 step-backs that already exist would, in Mr. Smith’s view, be inappropriate for three reasons: first, Mr. Smith concludes that some of the special high-quality excellence that will arise from the current design will be lost; second, there would be a reduction in the optimization and intensification of the Development and in Mr. Smith’s opinion, any such reduction would not necessarily result in conformity with the Growth Plan; and third, there is no good reason to cut back the height or push it further away as it will make no difference in the impact upon the neighbouring properties.
m) Mr. Smith, in cross-examination, admitted that the sheer mass and proximity of a building have an impact upon adjacent properties, but is of the view that the noted design elements mitigate this impact;
n) overall Mr. Smith was of the view that the OP policies, in regard to transition, privacy, massing, proportion, compatibility and fit were satisfied with respect to the east façade, as with the Development as a whole. Turning again to the roadmap metaphor, the Applicant’s submission on the matter of the rear yard transition of the east elevation of the Development is that: “The proposal represents an “alternate route” but does arrive at the “principle” destination”.
110] The parties have been intent on adhering to these metaphorical references to paths, routes, roadmaps and the “destination” in the analysis of the City’s planning policies, the relative function of the guidelines and performance standards and the evidence in this hearing. If it must, the Tribunal must then conclude that as the proposal is required to address the contextual circumstances of the Development’s adjacency to a low-rise residential Neighbourhoods area, and the policies that very clearly focus on matters of transition and compatibility, the Applicant has unfortunately lost its way. In proposing a design that is indeed striking, complicated, unique and challenging in its delivery of a vertical forest, the Applicant has strayed too far from the policy imperatives that are laid out in the City’s OP for this type of Development on this type of Site, and in doing so has failed to reach conformity with the principles set out in the OP policies governing a Mixed Use development adjacent to the residences on Pears Avenue.
111] Generally, the Tribunal finds that, upon the facts of this case, the Bloor/Midtown Guidelines and the Mid-Rise Guidelines can be used in the evaluation of this proposal, but as this proposed Development, and others in the immediate contextual area have been considered and approved, the guidelines obviously do not provide a regimented set of performance standards that must be adhered to in order to achieve conformity with the OP’s policies, particularly as they relate to transition. There is no absolute as to angular plane that must exist, and there is no absolute as to the setback of the building on the east side. This is not to relegate the performance standards and guidelines contained in the two Guidelines as irrelevant or inapplicable as they do provide important design elements that assist in the application of policy. Ultimately, for this Development, as the planning and design policies of the OP are to be applied, the non-conformity is with policy, and not the guidelines.
112] Generally, the Tribunal prefers the evidence of Mr. Friedrich and Mr. Spaziani as they have approached the matter of conformity with the OP policies that squarely address matters of transition and compatibility in relation to the Pears on the Avenue residential neighbourhood to the east of the Development.
113] The Tribunal has considered the submissions and opinion evidence provided by the Applicant as outline in paragraph 109 above.
114] The fact that the proposal has, to the time of the hearing, undergone key changes is irrelevant to the determination of the matter of conformity as the Tribunal is required to find whether the current proposal, as it is now presented conforms to the policies of the OP. The extent to which all the other issues in dispute have been decided by the Tribunal in this Decision, including height, leaves only the matter of the east portion of the Development’s design. The Tribunal is unable to agree with Mr. Smith’s identification of the relativity of the Development, to the adjacent residential built-form as “not a moderate difference in scale”.
115] As Mr. Smith conceded in cross-examination the sheer mass of a building, and its proximity, can represent an impact, and in this case, the Tribunal finds that as the Development rises up, as it does along the east side, there is adverse impact—and the type of impact that is identified in the OP. Mr. Smith also conceded in cross-examination that it would be possible to reduce potential impacts, if the height of the building on the Avenue Road/west side remained the same, but was reduced on the rear/east side of the building. The proposed overall maximum height, which the Tribunal has already found to be appropriate in its existing and planned context, could be maintained, but to the extent necessary, step-down heights on the east side could be modified downward.
116] The Tribunal has carefully considered all of the evidence and has undertaken a close examination of the comparative overlays prepared by both the Applicant and ABC. The Tribunal has also examined the Applicant’s architectural renderings, the south and north elevation profiles, and the revised architectural drawings (Exhibit 2 and Exhibit 23A), in the context of the testimony of the witnesses to consider the matter of conformity with the key policies of the OP that address transition.
117] The Tribunal finds that notwithstanding the acknowledged setback of the building from the neighbourhood at ground level, emphasized by Mr. Smith in his evidence, the profile of the east side of the Development, as it maintains only the two step-backs, with the ultimate overall height of the building, does not provide a gradual transition of scale and density to achieve the objectives of the OP as provided for in Policy 2.3.1. As the building is viewed from the perspective of the residents to the east, the building’s mass and scale, without additional step-backs, cannot be determined by the Tribunal to fit harmoniously into its existing and/or planned context and such vertical massing will, the Tribunal finds, represent an adverse impact as set out in the Built-form policies in 3.1.2.1. The policies in 4.5.2 applicable to Mixed Use Areas as they relate to transition and scale are also, in the Tribunal’s view, not adequately addressed on the east side.
118] The Tribunal has also considered the additionally prescriptive policies in SASP 211 which specifically deals with developments near the Ramsden Park Neighbourhood and finds that the absence of any angular plane of significance, and more pronounced step-downs in height towards the residences to the east, results in impacts relating to privacy and overlook, and as well, reductions in sky view. In the Tribunal’s view, the opportunities for screening, and additional measures during site plan review, will not sufficiently mitigate the adverse impact arising from the sheer vertical height of the mass of the building, without sufficient step-back or angular plane, as the building will rise above this eastern end of Pears Avenue.
119] More specifically the Tribunal finds that without additional step-backs achieving some manner of angular profile, the Development fails to conform with the policies of SASP 211 that direct that such adjacent structures should be of a lesser scale and textually appropriate and compatible with the adjacent low-rise areas. Further, the Tribunal finds that the manner in which the east side of the structure rises, after the initial setback, without transitions in scale and greater step-back distance separations, fails to meet the objective of urban design under SASP 211 which is to ensure that new buildings achieve a harmonious relationship to their built form context through height, massing, set-backs and profile architectural expression.
120] The Tribunal has noted specifically that while Mr. Smith’s evidence addressed the numerical step-backs of the building’s east face, exclusive of the terraces, it is the substantial form of the terraces, and the engineered water and nutrient delivery infrastructure and receptacles, to accommodate the vertical forest design, that serve to visually affect the mass and scale of the exterior and obviate the effects of the limited step-backs that have been integrated into the profile of the east elevation. The Tribunal must agree with Mr. Spaziani and Mr. Friedrich, and as noted in Mr. Smith’s cross-examination by Mr. Crawford, that the substantial terraces and the trees unquestionably add more massing and affect the profile of the east façade as it rises up from the ground level. This perceived vertical rise is indeed “in the eye of the beholder”, as noted in the course of the testimony, but as the evidence has been examined it is the Tribunal’s view that the massing of the building’s east side, depicted in the renderings and plans, brings the façade of the building “back out” to the edge of the terraces. While the terraces are not a continuous line (as with The Perry for example) this nevertheless results in the profile of the east face of the building rising vertically without defined step-downs in height that would achieve greater separation distance from the neighbourhood, in the upper levels, create a larger sky-view, increased distance separation to reduce opportunity for overlook, and create the kind of transition of scale and height referred to in the various identified portions of the OP policies.
121] This aspect of the evidence relating to the extent to which the design of the terraces and geometrics of the east side of the building do not create a step-back of the massing, and thus assist in transition in scale, is not insignificant for the Tribunal. Upon the evidence, the Tribunal prefers Mr. Spaziani’s opinion from the perspective of an architect and urban design expert, that although they may serve the needs of the vertical forest or market users, the use of the large terraces, as substantial cantilevered balconies, add the perception of increased mass to the building – an increase to the massing that already lacks defined step-backs and create privacy and overlook impacts that are not mitigated by the west-to-east directions of the dwellings. As such the Tribunal agrees with the assessment that the east side of the building rises suddenly in scale, with little relief, and results in a poor fit and incompatible form adjacent to the residential area. The Tribunal agrees with Mr. Spaziani’s view that the massing of the east side must be further reduced by incremental step-backs on the east side. Mr. Friedrich also is of the view that adjusting the building mass on the east side is necessary to achieve conformity with the OP polices.
122] The Tribunal also finds, in examining the on-site elevations, that the expressed opinions as to the impact of the relative elevation of the site on the east side are well-founded. The manner in which the transition in scale is insufficient, and the extent to which the east façade will be contextually inappropriate, is exacerbated by the difference in elevation between the Site, and the residential dwellings at the lower elevation, to the east.
123] With respect to the Applicant’s reliance upon the element of excellence in design achieved through the vertical forest and the unique aspects of its form, the Tribunal accepts that the Mid-Rise Guidelines make reference to exceptions where the Applicant can demonstrate that a specific guideline is not appropriate. However, the Applicant’s submissions are advanced on the basis that those Guidelines need not be strictly adhered to, and where they do, the Applicant has the onus of establishing why a standard should be excepted. In this case the Development does not meet the requirement of a 7.5 m setback, nor the referenced 45-degree angular plane referred to in Performance Standard No. 5B. At the end of the day, the Tribunal has indicated that the Development as a whole might achieve conformity were it not for its failure to conform to those policies which require transition and compatibility on the east side. The excellence in design, which the Tribunal accepts as the case, upon the evidence, must not serve to validate the absence of step-down, and a more angular plane, if such absences represent non-conformity.
124] A good portion of the evidence involved the examination of the comparative overlays and cross-section elevations of other rear yard transitions, set-backs and step-backs. The Applicant’s submission is that these demonstrate that the proposed Development’s east side function is in keeping with other similar developments. The Tribunal does not agree and prefers the analysis of ABC’s and the City’s witnesses as they have differentiated the manner in which these other developments have achieved conformity.
125] Despite the fact that the height of each of these other buildings identified in the evidence, and listed in this Decision, also extends beyond the 45-degree angular plane and do not achieve the 7.5 m setback, (and in some cases may be close to what is proposed by the Applicant), the Tribunal finds that these comparatives do not assist the Applicant in its submissions. To the contrary, it is the finding of the Tribunal that those other developments, can be distinguished as to the manner in which they have been designed to relate to the rear yard context. The DASH development as an example, might also have a noticeable lack of angular geometric at the rear, and a similar 6 m setback, such that it too is not adhering to the Performance Standards in the Mid-Rise Guidelines. The development at the DASH does not however abut on a low rise residential neighbourhood and is not the subject of special policy in SASP 211 as this Development is.
126] In examining the comparisons, the Tribunal also finds that the two corner developments at 126 and 128 Hazelton Avenue and 133 Hazelton Avenue although not set-back from the rear property line, as the subject Development is, nevertheless succeed in achieving a significant step-down in height towards a similarly low-rise residential area to the side street, with significantly more limited balconies extending and intruding back from the building’s face.
127] A final example is The Perry. The Tribunal has examined the comparative overlays, the photos, the architectural plans and considered the evidence of the experts and finds that The Perry, if anything, demonstrates a more reasonable and effective example of conformity with those OP policies that focus on built-form, design and transitioning to low-rise residential areas that abut the development. In comparison, the Development does not, in the Tribunal’s view, achieve that transition.
128] Finally, the Tribunal can address the three reasons provided by Mr. Smith in his evidence as to why there should be no further stepping back or stepping down of the east side of the Development. First, for the reasons indicated herein, the Tribunal has concluded that the balance of the issues relating to design, overall height, shadow, traffic and loading, and the overall design of the development as it functions on the north, west and south portions of the Development achieve conformity with the OP. It is somewhat overreaching to assert that reworking the east side of the Development as it transitions to the residential neighbourhood, with a consequential reduction in the floor area for some units, will mean a substantial portion of the special high-quality excellence will be lost.
129] Second, as has been covered in this Decision, it is the conclusion of this Panel that the optimization and intensification of the Site will be achieved regardless of the modifications that might be made and the east side of the building, with its rather substantial terracing, need not exist to achieve an acceptable degree of intensification, and optimization of infrastructure. That assertion is, in the view of the Tribunal, also far reaching and perhaps somewhat disingenuous for a modest-sized site such as this Site, and the modest number of large-sized units proposed by the Applicant.
130] As to the third reason expressed by Mr. Smith, the Tribunal is also unable to agree that to cut back the height or step-back the east side of the built-form will make no difference in the impact on the neighbouring properties. The lack of transition, and the substantial massing, without step-back, gradual step-downs in height, and transition in scale, as it fails to be achieve a compatible fit with the adjacent dwellings, in the Tribunal’s view, does impact the low-rise neighbourhood, results in loss of privacy, creates overlook conditions, and imposes no transition between a difference in scale that is not as “modest” as has been suggested by the Applicant’s evidence.
131] Accordingly, upon all of the evidence, for the reasons given, as a result of the form and function of the east side of the building, as it fails to achieve the required transition in scale, and is incompatible and does not fit harmoniously with the low rise residential character of the Neighbourhoods area to the east, the Tribunal must find that the ZBLAs, as they would permit the proposed Development, in its current form does not conform with the built form and development policies identified.
132] Mr. Smith has identified the complicated nature of the Developments design and built-form and the manner in which the expansive terraces are integral to the design necessary to achieve the vertical forest. There is no evidence to challenge this assertion but equally so, the Tribunal in unable to conclude that modifications to the eastern profile of the building cannot be made such that there will be some of the step-down and angular geometric necessary to achieve conformity. As a result the proposed Development has not yet reached that “principle” destination, referred to by the Applicant’s counsel in the closing submission. In the view of the Tribunal, it still, with modifications, can reach the point of conformity.
133] While the building’s design, in the view of the Tribunal, indeed “strives for excellence in design”, that excellence cannot trump the required sensitivity to the low-rise residential neighbourhood that lies to the east that is contained in the OP’s policies that address transition in scale. It is the Tribunal’s view that the design of the east side of the building can nevertheless be altered and still achieve that excellence but must allow for greater step-backs, as the east façade rises above a point above Levels 4 or 5, to provide some greater measure of geometric relationship, that achieves some measure of angular plane, if not in strict adherence to the performance standards of the Mid-Rise Guidelines.
134] To be clear, it is not the finding of the Tribunal that the Development, on the east side, must achieve the 45-degree angular plane, or limited 24 m height identified by Mr. Spaziani and ABC in the various overlays in Exhibit 14. In considering the whole of the evidence, and in particular the existing and planned context, the various approved developments, it is the finding of the Tribunal that the kind of adaptive step-backs seen with The Perry, (considered by Mr. Smith and in the cross section overlay on page 22 of Exhibit 2, and considered by Mr. Spaziani and in the cross section on page 7 of Exhibit 14) can be applied to the height of 38.95 m proposed for the Applicant’s Development and achieve conformity.
Summary of Findings and Directions of the Tribunal
135] The Tribunal finds that the proposed Development has had regard for and implements the matters of Provincial interest, as set out in s. 2 of the Act.
136] On the facts of this case the Tribunal is of the view that as this Development will redevelop the Site, increase density, make efficient use of municipal infrastructure and take advantage of proximity to transit, it will achieve consistency and conformity with the Province of Ontario’s higher order policies by replacing underdeveloped site with inefficient use of land, with a quality higher density development.
137] The Tribunal finds that the Development as it is currently proposed, and enabled by the ZBLAs, was consistent with the 2014 PPS as it read at the time of the hearing, and is also consistent with the 2020 PPS as it now reads as of the time of the issuance of this Decision. Any modifications to the east portion of the building, as addressed in this Decision, will not alter this finding.
138] The Tribunal finds that the Development, as it is currently proposed, and enabled by the ZBLAs conforms to the 2019 Growth Plan. Any modifications as addressed in this Decision will not alter this finding.
139] Subject to the concerns as to the absence of step-down height on the east side of the Development, the Tribunal finds that the overall proposed height of the Development, in and of itself, conforms to the City’s OP and the SASP 211 policies as it will exist within the existing and planned context, on Avenue Road, in the Bloor Yorkville/North Midtown area.
140] The Tribunal has considered the objections of ABC as they relate to traffic, loading zones, and the impact of this Development on truck deliveries/unloading or the use of the laneway and does not find that the parking, or the absence of the internal designed loading facility is problematic.
141] The Tribunal finds that as the Development is proposed, shadowing is adequately limited on the adjacent residential neighbourhood and sufficiently minimized over Ramsden Park, in that it will not adversely affect the utility of the Park. Any modifications that might be made to the eastern façade of the building, if they further reduce shadow, will obviously continue to conform to the OP policies relating to shadow.
142] Notwithstanding these findings as to conformity with respect to OP policies, and those guidelines which serve to implement those policies, the Tribunal finds that the proposed Development does not conform to those polices of the OP, and the SASP 211 as they require that the Development be compatible with designated Neighbourhoods in the OP and require a gradual transition of scale and density by stepping down buildings towards, and setbacks from those Neighbourhoods. Adequate light and privacy have not been preserved for those residents to the east of the Development. There has been no perceptible transition in scale and height as this Development represents a mass that is not unsubstantial in comparison with the residential dwellings below it. As such it is not compatible with, and does not represent a harmonious fit with, the physical character of the residential area adjacent to its east façade.
143] The Tribunal finds that these policy requirements are strengthened by SASP 211. Specifically, the Tribunal finds that the east segment of the built-form has not been designed with sufficient setbacks and transition in scale, through the use of angular planes and step-downs in height to adequately limit privacy impacts and the loss of sky view.
144] For clarity, again, were it not for the failure of the east façade of the proposed Development to conform to those various policies relating to the transition in scale and compatibility with the adjacent low-rise residential neighbourhood on the east, the Tribunal would find, on the whole, that the Development (with its overall height as proposed herein) conforms to the identified policies of the OP, and should be approved in light of the Tribunal’s finding on the other matters addressed. With modification that will implement some measure of step-down in height, and create step-backs in building face, with consideration for the manner in which the deep and substantial terraces add to perceived outward massing of the structure, the building, with the 6 m lane widening, can achieve conformity with those policies addressed at length in this Decision and as such, would represent good planning in the public interest.
145] For these reasons, as has been urged by the City in this case, as Vice-Chair Makuch did in the decision rendered in Bathurst & Glencairn Square Ltd. v. Toronto (City), [2017] O.M.B.D. No. 1219, the Tribunal will, in this case, not approve the proposed Development in the exact form it has been presented in the hearing of this Appeal, but neither will it dismiss the Appeal. The Applicant will accordingly be permitted the opportunity to amend its Development proposal, in accordance with the content of this Decision and continue discussions with the City and ABC with a view to presenting an amended proposal to this Panel.
146] The Tribunal will permit the Applicant, the City and ABC a period of eight months from the date of the issuance of this Decision, to return to the Tribunal with a request for a hearing of a final proposal and amended version of Exhibit 29 (being the draft Order with appended draft Zoning-By-laws), including those provisional conditions set out in the draft Order, failing which the Appeal will be dismissed.
147] Having considered the submissions, the Tribunal would direct that a cap on the number of units, set at 20, would be appropriate considering the evidence and opinions provided in the hearing.
148] In the event all or any one of the parties, upon the issuance of this Decision, or thereafter, require an extension of this deadline, they may make such request to the Tribunal. In the event such a request is made to the Tribunal at a later date, the Tribunal is to be provided with a status report as to the progress made by the parties, and a proposed time frame in which the parties can reasonably complete discussions to resolve the Appeal based upon the content of this Decision.
149] The Panel Member, having heard the evidence, and barring any unforeseen circumstances, will remain seized.
ORDER
150] The Tribunal orders that the Appeal is not dismissed, and the final determination of this Appeal is deferred, and is adjourned, in accordance with the terms of this Decision for a period of eight months from the date of the issuance of this Decision.
151] Unless extended by further Order of the Tribunal, in the absence of the receipt, by the Tribunal, of a request by a party for a further hearing event to consider an amended proposal in accordance with this Decision by that deadline, the Appeal will be dismissed by the Tribunal, without further notice to the parties.
152] Should the Applicant elect not to present an amended proposal to the City as provided for in this Decision, at any time hereafter, the Applicant shall advise the Tribunal, and upon receipt of such notice, the Tribunal will dismiss the Appeal.
“David L. Lanthier”
David L. Lanthier
VICE-CHAIR
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