Ontario Municipal Board Commission des affaires municipales de l Ontario

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1 ISSUE DATE: June 19, 2012 PL Ontario Municipal Board Commission des affaires municipales de l Ontario Premium Properties Limited has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from Council s refusal or neglect to enact a proposed amendment to Zoning By-law , as amended, of the former City of Toronto to rezone lands respecting 36 Eglinton Avenue West to permit the redevelopment of an apartment building with ground floor retail O.M.B. File No.: PL A P P E A R A N C E S : Parties Premium Properties Limited City of Toronto Counsel B. Engell G. Whicher Participants Thomas Cohen and Lydia Levin of Eglinton Park Residents Association Patrick Smith and Terry Mills of Avenue Road Eglinton Community Association Richard MacFairlaine of Oriole Park Association INTERIM DECISION DELIVERED BY A. CHRISTOU Introduction Premium Properties Limited (Premium) owns the commercial property at 36 Eglinton Avenue West (at the northeast corner of Duplex Avenue), which contains a sevenstorey office building. The area is known as the Yonge-Eglinton Centre - where the City encourages and directs more intense development pursuant to the Growth Plan and the Official Plan. Premium applied in June 2009, to amend the Zoning By-law to permit a 53-storey residential apartment building with retail uses on the ground floor. Following public consultation and meetings with City staff, Premium revised its proposal by: reducing

2 - 2 - PL the Gross Floor Area (GFA) from 42,000 m 2 to 32,800 m 2, reducing the height from 53-storeys to 48-storeys, reducing the floor plate to 750 m 2, reducing the number of units from 458 to 396, and introducing office space at the City s direction. They resubmitted the revised application in May When City Council did not make a decision in the required time frame, Premium appealed Council s failure to make a decision to the Ontario Municipal Board (Board). At the start of the hearing on April 16, 2012, Mr. Engell, Counsel for the appellant, advised the Board that pursuant to the Procedural Order (PO), there have been a series of meetings of the experts that has ensued in narrowing the issues, and as a result, four issues: 11, 14, 17 and 19, are resolved. He submitted assigned document, Statement of Agreed Upon Facts (Exhibit 1), which details the agreements and partial agreements reached on each of the 20 issues. Mr. Engell also submitted a Memorandum of Agreement in support of the proposed development signed by the Avenue Road Eglinton Community Association (ARECA), the Hanley Knowles Housing Co-operative, the Oriole Park Association, and Premium (Exhibit 7). The Memorandum provides for site plan related considerations and consultations with the community; section 37 considerations; and for coordination of the Premium development with the RioCan and LRT developments. Issues The main issues of the six-day hearing were generally with respect to: 1. the height and massing of the proposed 48-storey building, 2. potential shadow impacts on the community, 3. the application of the City s transition policies and guidelines for buildings situated at the edge of the Centre, and 4. the quantum of section 37 of the Planning Act bonusing benefits to the community in exchange of an increase in height and density. Although the experts agreed upon the Parking issue and no evidence was to be provided, there was some discussion by the City with respect to the queuing spaces

3 - 3 - PL and how the valet system will work at rush hours. Also, the City requires three parking spaces to be provided for the commercial component, which Premium opposes. The subject of this hearing has generated significant community interest, both in support and in opposition of this development, and several people were in attendance throughout the hearing. The Eglinton Park Residents Association (EPRA) (Mr. Cohen and Ms. Levin) appeared in opposition. The Oriole Park Association (Mr. MacFarlane) supports the project in principle, but would prefer a lower building, transition in height, and more community benefits. ARECA (Mr. Smith and Mr. Mills) appeared in support, subject to conditions detailed in the Memorandum of Agreement (Exhibit 7) particularly with respect to section 37 community improvements such as streets and parks. They assert that positive design is needed to address pedestrian scale and relationship. ARECA would favour a plan where intensification is to take place in the Yonge-Egliton Centre Focused Area. Also in support was Steven Pinnock, a property owner in the immediate area, who indicated that the proposed density is appropriate due to the proximity to the Yonge subway and the Eglinton LRT; and there are other similar, near 50-storey high buildings in the area. The Board heard planning opinion evidence from land use planner Paul Stagl on behalf of the appellant. The City produced evidence from land use planner John Andreevski; policy planner, Community Facilities and Services, Paula Prieditis; and urban designer, Rong Yu. Site and area context The subject site at 36 Eglinton Avenue West is situated in the northwest quadrant of the Yonge-Eglinton Centre (YEC) identified as area A in the Secondary Plan. The YEC is bounded by Yonge Street to the east, Eglinton Avenue to the south, Duplex Avenue to the west, and Orchard View Avenue to the north. The site has a frontage of 40 m on Eglinton Avenue and 35 m on Duplex Avenue, with a lot area of 1403 m 2. The property is designated Growth Area and is within the Yonge-Eglinton Centre Focused Area (Exhibit 5, tab 47, page 876), established through the Places to Grow Plan exercise Official Plan Amendment No. 63 (OPA 63). The City of Toronto Official

4 - 4 - PL Plan (OP) directs growth to Centres such as this. The site is located at a significant public transit node at the crossroads of a very important transit hub in the City. This is a desirable location planned for intensification and City building initiatives, established through major recent City initiated studies to guide reinvestment and renewal as well as significant private development applications. The YEC has been planned and designated Regional District Centre since It is designated Mixed Use Areas in the OP. YEC is a priority area for intensification and it is the second most important development area in the City after the downtown. It contains a vibrant mix of uses including: two RioCan office towers at 2300 Yonge Street and 20 Eglinton Avenue West, at 88 m and 119 m high (24 and 30-storeys); two residential towers at 411 Duplex Avenue and 38 Orchard View Boulevard with 790 units, 22 and 17 storeys high; and a retail component of 26,000 m 2. The RioCan office towers were subject to a rezoning in 2010, which increased the GFA and building height to 30 and 37-storeys (112 m and m) respectively. The Neon building at 455 Duplex Avenue at the northeast corner of Orchard View Avenue, while outside the YEC Focused Area, was approved in 2011 for 20 storeys of residential (Exhibit 5, tabs 73 to 76). The northeast and southeast quadrants of the YEC also contain a number of buildings ranging in height from 17 to 39 storeys. The two Minto buildings on the east side of Yonge Street, south of Eglinton, stand at 39 and 54 storeys (118 m and 160 m high) respectively, while an application is before the City for 8 Eglinton Avenue East, seeking 44- and 64-storey buildings at 144 m and 207 m high respectively (Exhibit 5, tabs 79 to 82). The southwest quadrant of the YEC contains the City owned (TTC) lands and private lands, which were subject to a study finalized in 2009 that provides guidance for future intensification Official Plan Amendment No. 73 (OPA 73). The area was prezoned to accommodate up to 17-storey mixed commercial and residential buildings ranging in height from 120 m and reducing to 56 m toward Duplex; a bus facility; and a subway/rapid transit station, all at a density of seven times the lot area (Exhibit 5, Tab 12).

5 - 5 - PL The area to the west of the subject property, on the north west corner of Eglinton Avenue and Duplex Avenue, contains a Hydro substation and three-storey high Hydro buildings extending north on Duplex Avenue. The Eglinton Avenue frontage to the west, which is occupied by a mixture of low and mid-rise apartment buildings, is designated Avenues in the Official Plan and is designated for mixed-use development. It can accommodate buildings up to 36 m in height as-of-right. Lowdensity residential detached, semidetached low and mid-rise apartments are interspersed in the residential neighbourhoods to the west of Duplex Avenue and north of Eglinton Avenue. The Eglinton Community Park is located about 300 m west of Duplex Avenue. Height, massing and transition in building height The applicant s position The Interpretation section in the OP (Exhibit 5, page 104) provides guidance on how policies of the areas subject to Secondary Plans are to be interpreted. In cases of conflict it suggests: the Secondary Plan policy will prevail. This was an important matter in this hearing, as there appears to be some difference of opinion in the interpretation between the parties, of the building height transition policies. The appellant maintains that notwithstanding the general transition policies in the OP and the specific policies in the YEC Secondary Plan of December 2010 (page 118) for the southwest and northeast quadrants, the Secondary Plan is silent about transition to abutting and adjacent lands in the northwest quadrant. The height and massing of the proposed building are therefore supported in the OP and the YEC Secondary Plan. Mr. Stagl s evidence was that although the site is viewed as a periphery site in both OPA 63 and Official Plan Amendment 116 (OPA 116), the OP has no periphery policies and no minimum size requirements. The OP does not utilize height and density criteria and density is not a measure of intensity. While the YEC Secondary Plan provides policy direction, it is not prescriptive in height and density. He opined that the proposed development is consistent with the OP, OPA 63, the Growth Plan and the Provincial Policy Statement. The site is situated in a designated Centre where greater height and density are directed; it is near transit infrastructure and is

6 - 6 - PL capable and suitable to accommodate intense development. With respect to transition, he opined that there are a series of intervening land uses between this development and the Neighbourhood designation to the west, with the closest residential property being 70 m away. Distance, therefore, provides for the notion of transition. Further, the City uses angular plane calculations to determine compatibility, with a threshold of between 60 o and 75 o of angular plane. The rear yard of the dwelling fronting on Henning Avenue at 70 m distance for the Premium building provides a 65 o angular plane. Mr. Stagl submitted that the OP objective is to avoid adverse impacts - light, view and privacy - and it turns its focus on design and build form to achieve it. The City has turned its mind on this approach and has produced design guidelines for the YEC on how to assess development proposals. It was his opinion that the density factor is not determinative vis a vis adverse impact. Premium s development provides for an appropriate relationship between the YEC context and the adjoining land uses. It has addressed privacy and overlook concerns raised by the City by removing or reducing the balconies from the west side of the building and increasing the distance from the RioCan buildings on the east side. The building podium addresses the street relationship and the middle of the building is (marginally) stepped back. The difference and disagreement with the City is in the number of storeys and shadows. Therefore, the proposed height and density of the building, in his view, are appropriate for this location and represent good planning. The City s position The City planners took the opposing view: that the scale and intensity of development in the periphery of the Centre is inappropriate; and the OP transition policies are supreme, notwithstanding that the Secondary Plan may not specifically address transition in the northwest quadrant. According to Mr. Andreevski, the Secondary Plan (Tab 4, page 69) states, protect adjacent Neighbourhoods from encroachment, therefore, transition in scale and intensity should take place within the Centre. The City applied its transition and stepping down theory by drawing straight lines in plain view/cross section (unnumbered) exhibit from the roof of the recently rezoned

7 - 7 - PL m taller RioCan building to the roof of the lower 112 m RioCan building and projecting it to the Premium property to come to its conclusion that a height of between 25 storeys (78 m) and 33 storeys (102 m) would afford the appropriate transition the OP provides for. This would provide for the stepping down of building heights, which would achieve the objective of lower buildings toward the Neighbourhoods designation. The shadow impacts The applicant s position Mr. Stagl testified that the proposed development does not encroach onto the Neighbourhoods designation, as it is not directly opposite. The area on the west side of Duplex Avenue is designated Avenues and Mixed Use Areas. The OP addresses shadow impacts in the Neighbourhoods and Mixed Use Areas designations and speaks to adequately limiting shadow impacts and minimizing any additional shadowing on parks. It does not imply eliminating shadows. The Secondary Plan (Tab 6, page 119) speaks of protect from overshadowing and avoid shadows over long periods. The Tall Buildings section in the YEC Urban Design Guidelines, 2009, (Tab 24, page 443) accepts there will be shadowing, but it should not create extensive shadowing of surrounding context. He opined that the shadow of a slender tower moves quickly, as opposed to the shadow of a broad slab building such as 411 Duplex Avenue. The Massing and Angular Planes section (page 427) provides for the limiting of back yard shadows in the southwest quadrant, and some of these principles were transferred in OPA 63 to other quadrants, except the northwest. The applicant produced and submitted sun/shade studies with the application and subsequently provided updates and supplementary information at the City s request. Due to a disagreement for the March 21 morning shadow analysis between the applicant and the City, a third party Urban Strategies prepared an independent assessment and included the additional height of the RioCan development (Exhibit 8). It results in a slightly longer but slender shadow (by the Premium building) in the Eglinton Park at 9:18 a.m. By 11:18 a.m., shadows clear both the park and the Neighbourhoods designation (Tab 52, page 958). It was Mr. Stagl s opinion that the Premium building shadow moves quicker than the RioCan shadow; the impact times

8 - 8 - PL are minimal; and there is no adverse impact on the park. By April 10, there are no shadows in the park. Since the OP test is to minimize impact on the park and not to eliminate it, the slender building design achieves the objective and does not create a lingering shadow impact. The City s position The City, seconded by EPRA (Ms. Levin), asserted that the Premium development, at 23 times coverage, does not provide meaningful transition to the community. It is too high and its shadow, particularly in the morning, would impact people s ability to use certain areas in the park. The development intrudes and does not complement the community. A lower building could however be supported, together with improvements to the abutting streetscape. The quantum of section 37 bonusing benefits Pursuant to section 37 of the Planning Act, Council may pass a by-law to authorize increases in the height and density of development otherwise permitted in the By-law that will be permitted in return for the provisions of such facilities, services or matters as set out in the By-law. The planning report in Tab 57 recommended refusal of the development and although priorities were identified, no section 37 by-law was passed. However, the City advised the applicant on February 13, 2012, that there are a number of community facilities and matters that are required in the area (Exhibit 2, page 54) valued at $2.5 million. This includes enlargement of facilities in the Eglinton Park, improvements to the public library and pool in the community centre and a new day care. No discussions with the community and local Councillor have taken place so far. Mr. Stagl s testimony was that at present, there is no consistent pattern of applying section 37 in the City. Section 37 bonusing applies to increase in GFA over what is permitted as-of-right (7,018 m 2 ). The $2.5 million suggested by the City represents $99 per m 2 of excess proposed GFA of 32,150 m 2. He provided an extensive list of section 37 amounts that have been assessed to other developments in the YEC and vicinity:

9 - 9 - PL PROJECT CONTRIBUTION $/m 2 RioCan Duplex Roehampton 9.00 Minto Neon Manhattan Roehampton AVERAGE Mr. Stagl concluded that what is proposed by the City is not appropriate and the dollar amount is too high. It is out of context. His estimate would be for a contribution between $500,000 and $1,000,000 ($20 to $45 per m 2 ) for this development. What improvements this development is to cover, is something that needs to be discussed with the community. Terry Mills, a representative of ARECA and planner by profession, with extensive involvement in this area, submitted that section 37 funding could be used to provide for street parks and improve the pedestrian environment and corner treatment on Eglinton Avenue and Duplex Avenue. Ms. Prieditis, a planner with the City and expert in community services and facilities, has been involved in the Yonge/Eglinton Focus Review. She has conducted a community facilities needs study for the area in 2005 and identified that due to the increase in population, the community is in need of multi-purpose recreation space, day care ($50,000), park improvements and acquisition of new park. Two additional issues have recently arisen in the areas that are in need of funding: 1. exterior streetscape improvements at the library, for $100,000; and 2. repairs to the Memorial pool, for $675,000. Ms. Prieditis testified that the developer has been advised of the list as per Mr. Andreevski s witness statement (Exhibit 10). This is a shopping list of benefits and is subject to negotiations. She submitted, It is rare that a development will sustain the full amount. The developer should work with Facilities and Real Estate to determine the value of the additional floor space.

10 PL It was her opinion that it would be appropriate for the parties to discuss the various options and determine the quantum. The parties could also seek mediation for the distribution of the funds if there is disagreement. Good planning and the public interest Mr. Stagl concluded the proposed development represents good planning as it provides for intensification and redevelopment of the underutilized site in the YEC, where intensification is directed in the OP. It is located in the periphery of the Centre and maintains transition from the residential areas and does not directly abut the Neighbourhood s designation. The City s recommendation for 85 m height does not reflect the policy instruments in place and was only recently advanced with Mr. Andreevski s supplementary witness statement. The proposed building would therefore be appropriate development for the area. It is compatible with surrounding development and the limited amount of shadow is manageable, as the shadow dissipates by 11:00 a.m. in the early spring. It is suitable development and it is in the public interest. Discussion and findings What is before the Board is the question of whether a tall building situated within the intensely planned and developed Yonge-Eglinton Centre poses adverse impact to the lower density community to the west, by virtue of its height and mass. Both parties have suggested that the Board should determine what the appropriate height should be. The challenge for the Board is to analyse and weigh the facts presented by the parties and residents, and to determine a considerate decision based on law and good planning principles, consistent with the provincial and City of Toronto policies and long-term goals for this area. The Board heard from residents that this is a vibrant and very desirable community to live in, with significant community spirit and drive. People are aware of their surroundings and the fact that this is a large urban centre, close to jobs, shopping, recreation and excellent public transit. They have made a commitment to enjoy their area literally situated in the shadow of this urban centre, while safeguarding the community from further intrusions and adverse effects of large-scale developments to their neighbourhood.

11 PL What is very striking to the Board is the sheer size and mass of the YEC as shown in the City s built form analysis graphic, in a three dimensional form and in aerial photo exhibits (Tab 44, page 821). There is no question that the City has planned this centre for a long time with tall buildings in mind, particularly within the Yonge-Eglinton Centre Focused Area, which includes the four quadrants of the Yonge/Eglinton intersection and the subject property. Tall buildings are front and centre and they are seen interspersed not only inside the Yonge/Eglinton Centre, but are spread over into the periphery in the lower density areas in Apartment Neighbourhoods and Neighbourhoods designations. Some large buildings outside the Centre appear to predate the new City of Toronto OP with its protective policies for Neighbourhoods and are thus legal nonconforming. The Board heard opposing views from the developer and the City and also from some community associations and residents who appeared both in support and in opposition to this development. The City and some of the residents, including EPRA, are concerned with the proposed height and density of this building, which would be nearly 160 m tall at 48 storeys. They assert there would be significant shadow impacts, which need to be minimized by reducing the height. Traffic is also a concern for EPRA (Mr. Cohen), particularly on Duplex Avenue as well as the proliferation of tall buildings in the YEC. The streetscape on both street frontages of the building needs to be improved in design and function. Parking and waste management need to be addressed through site plan control. Shadow impact The City adamantly defended its position that the building is too high and the height impacts the community by casting a long shadow beam in a northwest direction, all the way to the Eglinton Park, about 300 m away. The City s planners spent many hours painstakingly describing the effect of the massive shadow cast from the whole of the YEC development and by implication the proposed Premium building. The shadow studies for March 21 at 9:18 a.m. (Exhibit 5, page 1129) were particularly striking to the Board, because they show almost 90% of the area north of Eglinton Avenue, west of Duplex Avenue, east of Colin Avenue and as far north as Montgomery Avenue, being under a blanket of shadow. The Premium building shadow at 9:18 a.m. on March 21 seems to extend about 80 m beyond and intrudes

12 PL into a small part of the park. Exhibit 17, an air photo of the Eglinton Park and vicinity, shows that there are many trees in the park in the vicinity of the shadow projection, and these trees shed their own shadow on the park. Building shadows need to be assessed objectively by the City, as they are only one aspect when one tries to assess impacts on parks. Parks inherently have trees, and shadows from these trees contribute to the overall ambiance. Some times of the year shadows may be desirable, while in other times of the year, sunshine may be more desirable. The Board is satisfied the shadow projection of the Premium building would mainly impose on the park in the early morning hours, in early spring, and move fast out of the park, thus minimizing adverse impact. The City s argument, with respect to the residential area, would also appear to lose some of its shine, as the incremental shadow impact from this building represents a rather small amount vis a vis the shadow imposed from the existing and already approved development in the YEC. Apparently City staff had no massing and shadow concerns when City Council approved the zoning increase in height and mass for the two RioCan buildings, which in fact impacts the community to a much large degree. Fortunately, the early spring shadows on the park and residential area, from the Premium building and the YEC, would dissipate by 11:18 a.m. Gradation The City planners insisted the OP dictates that a gradation of building heights is essential in order to safeguard the integrity of the low-density areas in the vicinity. A particular example noted was the planning of the southwest quadrant, which contains a large City-owned parcel of land and includes future subway and LRT interfaces, in addition to large mixed-use buildings. This southwest quadrant was specifically planned in the Secondary Plan to provide a stepping down of building heights along Duplex Avenue to the west, as it directly interfaces with low density residential. The same stepping down policy, oddly enough, did not apply to the residential areas to the south of the Centre. With respect to the northwest quadrant, the City chose a somewhat simplistic method of connecting the dots from the roofs of the two RioCan office buildings and projecting a diagonal descending line to the Premium building, thus providing for

13 PL what they consider a natural stepping down effect and a reduced building height to 85 m. However, this methodology appears to be based on a drafting exercise rather than being rooted in the applicable policy the OP clearly directs. For example, contrary to the City planners wish, there is no expressed policy framework in the Secondary Plan to locate the tallest buildings only at the Yonge/Eglinton corner. Also, according to the evidence, although transition is a desirable policy objective, stepping down of buildings is not mandatory. Both parties provided evidence on the use of angular planes as a tool of determining appropriate building height. Although there was reference of an existing 61 m building height provision in the By-law for the YEC, it was premised on a 45 o angular plane. The planners however applied different methods in determining building height desirable to their respective clients, with much higher degrees of angular plane with a range of between 60 o and 75 o. It was finally agreed to by the City that not one development in the northwest quadrant of the YEC can or has achieved the 45 o angular plane. All developments require exemption through zoning. There also appears to be some inconsistency as to the drafting of the policies in the YEC Secondary Plan, as it clearly specifies transition policies for the southwest and northeast quadrants, but is silent for the northwest quadrant. It is not clear to the Board as to whether the drafters of the recent Secondary Plan intentionally omitted transition policies for the northwest quadrant, or if it was an inadvertent omission. No compelling evidence was adduced to support the City s position. Two community associations, a co-op building association and a local property owner supported the applicant s position (with some conditions) that this is an urban site that requires an urban solution. They raised some considerate planning arguments with respect to: 1. the numerous existing and planned tall buildings in the YEC; 2. the inconsistency in statutory documents that guide development and inform decision making in this special area of the City; and 3. the absence of building height policies in the Secondary Plan, specifically for Area A (northwest quadrant).

14 PL In essence, although the OP and Secondary Plans for the YEC provide explicit policy direction for the transition of building heights toward the periphery and approaching the low- density areas in the southwest and northeast quadrants, the YEC Secondary Plan is silent with respect to the northwest quadrant, where the subject property resides. In cases of disagreement, the OP informs us that the the Secondary Plan policy will prevail. Notwithstanding the peculiarities or shortcomings of the Secondary Plan, the Board is charged with the responsibility and the task of determining whether good planning principles and fit within the community context and area for this development, ought to be considered. The planners were asked what, in their respective view, would be a reasonable and appropriate building height for the subject property and its context in the YEC. Mr. Stagl opined that a building of 125 m in height might be appropriate. Mr. Andreevski accepted there is some flexibility in the OP, but felt 120 m is too high. He offered that something between 102 m (from zoning grade - geodetic datum m) and 106 m from actual grade, or 33-storeys high, would be acceptable. Ms. Yu suggested a height of 82 m to 106 m (Exhibit 15, page 7) and later increased her recommendation to 90 m to 100 m as more appropriate. The Board appreciates the frankness of the witnesses, which assisted the Board in its deliberation. Despite the inconsistency in building height numbers offered by the two City planners, the difference in height between the City and the applicant now appears to be reduced from about 50 m to about 20 m. The Board understands from the evidence that there are a number of residential buildings in the area that are within the range of 104 to 118 m with 33 and 39-storeys. Two examples are the Minto buildings at 30 Roehampton Avenue, north of Eglinton and 2195 Yonge Street, south of Eglinton. However, 30 Roehampton is outside the Focused Area but within the YEC boundary and is designated Apartment Neighbourhoods Yonge Street (within the Focused Area ) contains two Minto buildings with 160 m and 118 m (54 and 39 storeys) with the lower building being in somewhat similar situation as the proposed Premium building i.e. in close proximity to lower density residential. Based on the evidence and its own analysis, the Board finds that a 38- to 39-storey building (approximately 118 m high including rooftop equipment, with 750 m 2 floor plate) at the northeast corner of Eglinton Avenue and Duplex Avenue would provide

15 PL for a development of an appropriate scale and height that respects both its YEC attributes and the objectives of the residents in the lower density residential area to the northwest. Further, a 118 m high building would be 39 m lower than what was applied for (157 m), a 25% reduction in height. A 25% reduction in height would also represent a significant reduction in the shadow projection, reducing or minimizing shadow impacts on the community and the park, consistent with the OP direction. The reduced height would also provide for the City s desired stepping down notion of building heights from the massive RioCan buildings (153.5 m) to Duplex Avenue. The intent of transition policies is to manage adverse impacts and minimize conflict. The policy language in the Secondary Plan does not provide for mandatory stepping down, as transition can be achieved through design and orientation. The Board finds that the transition in building heights in this case (in the absence of specific Secondary Plan policies) is in fact achieved from south to north (from the northeast corner of Eglinton/Duplex) in this instance, and it is represented by the difference in height from the Premium building (38 to 39 storeys), to the 411 Duplex Avenue 22- storey residential apartment and the 20-storey Neon building at 455 Duplex Avenue, which are directly across the area designated Neighbourhoods. The Premier building would be across from or adjacent to a Mixed Use designated area to the west. The Board would like to point out that a reduction in building height should not directly result in reduced unit sizes in order to increase yield. For the benefit of good planning, a building in this central area of the City should be able to accommodate a range of unit types and sizes, including two and three bedroom apartments. The Board therefore directs the developer and the City to cooperatively determine the appropriate unit mix and reflect this in the Zoning By-law. If resolution cannot be reached, the Board may be spoken to and expert evidence can be presented to the Board. The Board does not anticipate that a residential tower of approximately 118 m total height will impact the viability of the Yonge/Eglinton Centre and the community, given its proximity to a very significant transportation hub. There is a symbiotic relationship between the Yonge/Eglinton Centre and the surrounding residential area, notwithstanding the shadow effects present today.

16 PL Parking The reduced building height would also provide for a commensurate reduction in the number of units and parking spaces, which would alleviate some of the City s concerns with parking for this development. Premium expressed concerns with the City s request for three parking spaces for the owners of the commercial component. The City does not normally require parking for customers of commercial uses on main streets. The Board is satisfied that although there appears to be sufficient public parking available in this area to accommodate any need for commercial customer parking, the condo owners of these commercial units ought to have dedicated parking spaces within the development. The Board directs that three parking spaces for commercial unit owners be reflected in the By-law. The City has expressed a concern on how to deal with the operation of the valet parking and parking stacker arrangement proposed by the applicant, as it may create traffic impact. This is a relatively new and generally untried parking procedure with limited experience in the City. City staff is concerned the system may fail particularly in the evening rush hours and prefer to spell out the particulars of the parking operation management plan in the Zoning By-law. The proponent is of the view that this matter can be addressed in the site plan stage, as the Operation Management Plan usually comes after the project is built. The 12 pick-up/drop-off parking spaces are not allocated in the By-law because they are in excess of the parking requirement. The City encourages alternative parking arrangements such as parking stackers. Since the parties had agreed beforehand to not deal with this matter at the hearing, no parking related expert opinion was proffered. The Board directs the parties to work cooperatively to resolve the matter in a timely fashion. A viable Operation Management Plan to the City s satisfaction should be developed and options of its implementation should be discussed on whether a binding agreement can be entered into at the Zoning stage, or if such plan should be implemented in the site plan stage. If no resolution can be reached, the parties may seek mediation procedure. Alternatively, the Board may be spoken to and expert evidence can be presented to the Board.

17 PL Waste management Because there is no site plan application submitted for this development, the City has concerns about the operation of the waste management area. Technical Services have commended that the layout of the design is not adequate for City pick-up of waste. Staff prefers to deal with this matter in the Zoning By-law. The developer would like to defer it to the site plan stage, and if it cannot be resolved, they would provide for private garbage pick-up. The Board directs the parties to resolve this matter collaboratively. If no resolution can be reached, the Board may be spoken to and expert evidence can be presented to the Board. Office uses At the City s request, the developer has incorporated a small office GFA component (approximately 2000 m 2 ) to the development. However, the introduction of office space has been at the detriment and expense of private amenity space for the building residents a reduction from 1436 m 2 to 673 m 2. The Board and some of the area residents are concerned with the loss of amenity space in this development and would prefer that the appropriate amenity space be provided within. The intent of the private amenity space is that the development should provide for the needs of its residents, without further impacting the limited community resources. The introduction of a small amount of office GFA in a mixed use building ought to be reconsidered by the parties, particularly, as according to the City s evidence, no other residential building in this area has been required to include office space. No compelling evidence was adduced to support this departure. The YEC already contains ample dedicated office building space for employment. The Board directs that adequate private amenity space be provided to meet the by-law requirements of approximately 2 m 2 per unit; and in light of the reduced size of the building, office GFA be provided only if, and as required. The By-law should be drafted accordingly to provide flexibility. Section 37 contribution The parties requested the Board to determine the quantum of section 37 contributions for this development. Based on the evidence and having considered

18 PL the amounts other developments in the area have contributed, the Board sets the quantum of the section 37 contributions to be in the range of $25.00 to $45.00 per m 2 of additional GFA above the permitted GFA. The City has listed items of interest that need to be funded through development proposals in the community. The Board recognizes that the needs in the community may far exceed the section 37 amounts that can be generated by this development or any one development. The parties and participants have agreed that further fulsome discussions are needed on how section 37 contributions ought to be fairly determined and for what purposes. The Board will therefore defer its final Order until a section 37 agreement is conferred and agreed upon, and the Board is so advised. The Board directs the parties to resolve this matter collaboratively and to enter in consultation with the relevant community associations and the local Councilor. If no resolution can be reached, the Board may be spoken to. The by-law Mr. Andreevski opined that the format of the draft zoning by-law submitted by the applicant is acceptable to the City. However, fine-tuning and additional provisions to implement agreed statements of fact will be required. He asked the Board to withhold its Order until the section 37 Agreement is in place. He also would like the Board to direct Premium to file a site plan application. Disposition The Board directs the parties to draft the zoning by-law to reflect the Board s direction in this decision. The Board may be spoken to in the presence of all parties, should the need arise in implementation of this Decision. The parties are directed to complete all outstanding matters within 120 days from this decision. Once the changes discussed in this Decision can be considered and accommodated, the Board would encourage Premium to submit a site plan application to the City.

19 PL The Board s Order will issue when all the matters reflected in this Decision have been satisfactorily completed. A. Christou A. CHRISTOU MEMBER