Progress at the OMB - Residents and City Against 8-Storey Application

An application was made to redevelop a 1 story medical offices building  on Bloor near Prince Edward Drive into a very hefty 8 storey mixed use block with shops on the main floor. In consultation with the city for approvals for a design that was too big for the lot, the allotted interval for consensus ran out. This happens often when one or the other (or both) sides refuses to negotiate.  The one public meeting that was held indicated that the district residents were adamantly opposed to the proposal and the Councillor, Mr Di Ciano, agreed.  With the application at a stalemate, the developer was permitted to proceed to the next level for resolution by having the Ontario Municipal Board decide what could be erected.

The OMB hearing in June 2018 has demonstrated unequivocally that there is only one issue on the table. It is the struggle for supremacy  between the unique-to-this-area Urban Design Guidelines, formulated and adopted in 2003, and the more recent  Midrise guidelines passed and adopted in 2010. While there are similarities between these two documents, the Urban Design guidelines were applicable between Prince Edward Drive and Montgomery only. The Midrise Guidelines were created as a blanket template to cover off  all other avenues  across the city not graced with a formal study.  The avenue studies were deemed to be too time consuming and costly to prepare and development parameters were a pressing developer requirement.  However, the Midrise Guidelines are now the battering ram being used to destroy the Urban Design Guidelines created by the community in consultation with  City of Etobicoke planners and staff. It is also important to note that the Urban Design Guidelines were  created at the time the city was undergoing amalgamation and attempting to reconcile  and roll up all older studies. Having the OMB agree that our older Guidelines are the equivalent of an avenue study, with all the protection that implies, is the key to success at this hearing.

The developer introduced witnesses to buttress their position that their offer to the community was hugely generous in that it provided MORE than the new Mid-rise Guidelines dictated - such as a deeper set back on the sidewalk . The developer's witnesses made deprecating and unsubtle denigration  of the community and the shopping district as being not terribly interesting in character nor imbued with any marked historic perspective. The absence of formal municipal historical protection  and recognition was also underscored. The upshot was that these contextual considerations were considered insufficient to put the brakes on a very modern and 4-times- taller building than the surrounding 2 storey structures, according to the developer.

The city countered  by illustrating firmly, using both the Urban Design Guidelines AND  the Mid-rise Guidelines,  that the application failed to meet requirements and limitations no matter which hat was worn. By attempting  to borrow selectively from both documents, the project failed to satisfy in its attempt to find a middle ground. The city also made a persuasive argument that the Urban Design Guidelines of 2003 constitute and are the equivalent of an avenue study  since the terms defining an avenue study were being composed at the time the guidelines were passed.

It is important to note that the City lawyer has the job of defending a mountain of  overlapping documents from several municipalities, going back 20 years in this case. The developer's lawyer has merely to select small excerpts from the ones that support his case, and find and exploit the discrepancies between older pieces of legislation. The City lawyer has a monumental task of knitting up the intentions and finding the bridges between documents that are sometimes vague to persuade the OMB chair to rule in favour.

There was the better part of one day devoted  to impact statements made by residents, not represented by a planner or a lawyer. This is a compelling element  in an OMB hearing  where deeply personal and sometimes brilliantly perceptive observations add vigor and colour to  an otherwise drab set of statistics and lifeless drawings. The distress that neighbors feel when an oversized building suddenly looms in their immediate future behind their homes cannot be overstated. Residents from Bermuda Avenue made stark statements  about the crushing impacts they have suffered - houses that cannot find a buyer now and the potential damage to gardens and trees, the trashing of their sense of privacy, and the inadequacy of the rear lane-way for current and future vehicular use. Due to inadequate space for outdoor amenities for the new building,  residents are appalled  to think their front gardens  and the Parklawn Cemetary (also private property)  would become the shortest route for the relief of pet dogs.  The developer's chief planner callously dismissed  these concerns as "the cost of living in the  big city". That gross discourtesy went over like a lead balloon.

Traffic issues were resolved between the various departments and the developer, so no presentations were made in that regard, which disappointed residents. While OMB  decisions are made based on Planning issues, extracted from the thousands of pages of  bylaws, guidelines, studies, and  the Official Plan, the perspective of a more subjective residents view is still of value. Otherwise decisions might as well be rendered by computer- the most recent date on the most recent document would carry the day, to the letter of the law.  Let it also be understood that the Official Plan is filled with all sorts of fashionable flowery language about happy neighborhoods, affordable housing and transportation,  green space, trees and history. In truth, this is a featherweight consideration in these fights at the OMB because each piece of land is dealt with in absolute isolation , pushing every conceivable constraint as far as possible , (and each of these to be considered a "minor" concession) , without real binding consideration for the buildings nearby. The terms of "sensitive transition" therefore become laughable when the building requested is 8 storeys (where 6 storeys is permitted) on too small a plot of land, incapable of providing adequate green space, and not prepared to adhere to angular planes or setbacks. While it is said that anyone is legally permitted to ask for more than the bylaws permit , the cost of refusing the permission and then having to fight it again and again is an enormous ongoing burden on city taxpayers.

The KPRI  prepared an historical review to support the stringent design elements put in place by Robert Home Smith, starting in 1910, and applying to north of Bloor initially and executed south of Bloor as time  and development of the neighborhood proceeded. Read the KPRI presentation HERE . The presentation  was made to refute the airy dismissal by the developer's experts regarding the intrinsic character  and historical elements.

There were two lawyers for the developer, one for the city and one for the SKCA and 1 other lawyer representing himself. The developer made his case, and the city started in on theirs when time ran out.  The city will resume and then the SKCA lawyer will make his case before the Board in December. One hopes the Chair of the OMB will find an hour to visit the site in the meanwhile.

The case is scheduled to recommence Dec 4th at 655 Bay Street, Floor 16.  It should be a fascinating wrap-up for Christmas.


Fiona Campbell, President, KPRI