1014 Ontario Municipal Board Commission des affaires municipales de l Ontario. Quad (King & Brant) Inc.

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1 ISSUE DATE: April 16, 2007 DECISION/ORDER NO: 1014 Ontario Municipal Board Commission des affaires municipales de l Ontario PL Floyd Prager, Morton Prager, Ontario Ltd. and the City of Toronto have appealed to the Ontario Municipal Board under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from a decision of the Committee of Adjustment of the City of Toronto which granted an application by Ontario Limited numbered A0140/06TEY for variance from the provisions of By-law , as amended, respecting 399 Adelaide Street West OMB File No. V APPEARANCES: Parties Quad (King & Brant) Inc Ontario Ltd., Morton Prager, Estate of Floyd Prager City of Toronto Counsel J. Dawson C. Tanzola S. Rosenthal S. Haniford A. Moscovich DECISION OF THE BOARD DELIVERED BY J. de P. SEABORN The City of Toronto (City) and the Pragers/ Ontario Ltd. (Pragers) have appealed variances authorized by the Committee of Adjustment (Committee) to facilitate a project proposed by Quad (King & Brant) Inc. (Quad). Quad proposes to construct an 11-storey residential building at 399 Adelaide Street West (Adelaide) and in order to accommodate the project, certain variances are required. The appeal launched by the Pragers was settled, leaving the Board to determine the appeal by the City which relates to variances sought by Quad from the requirements of By-law , as amended, (By-law) in respect of first, height; and second, a balcony projection into the step-back situated at the eighth floor. There were also a series of variances that were authorized by the Committee and not in dispute between the parties, as described later in the decision.

2 - 2 - PL With respect to height, the Committee authorized the variance, as requested. The variance authorizes an increase in height to metres (including mechanical penthouse) from the provisions of the By-law (23 metres, plus 5 metres for the mechanical penthouse). Quad had also requested relief from the Committee from the provisions of the By-law which requires a step-back at the 20 metre height limit. That variance was not authorized and Quad did not appeal the Committee s refusal. Instead, Quad revised its plans to meet that By-law requirement. However, as a result of amending their plans to accommodate the step-back at the 20 metre height limit, an additional variance was identified by the City to permit the balcony projection into the step-back at the 8 th storey. Since the application and variances before the Board are slightly different from those that were considered by the Committee, with the consent of all parties, the Board amends the application pursuant to subsection 45(18.1) of the Planning Act. Given the amendment is minor, the Board finds that no further notice of the application need be given. In support of variances sought, Mr. Glover (urban design) and Mr. Gladki (planning) testified on behalf of Quad. Ms Hill (planning) and Ms Old (urban design) testified on behalf of the City. There were no participants at the hearing. The Project Quad proposes to redevelop a vacant lot on a portion of a Block bounded by Adelaide to the north, Spadina Avenue to the east, Brant Street to the west and King Street West to the south. The lot is a rectangular parcel about 1,959 square metres located one property to the east of the southwest corner of Adelaide and Brant. The intersection to the east is Spadina Avenue and Adelaide. Part of the Block has been previously redeveloped and Quad s proposal for an 11-storey residential tower was described as Phase III of the Quad Lofts development. The building will face Adelaide and include approximately 160 residential units, live/work units, and underground parking and a shared interior courtyard. It will share facilities with the two residential towers previously approved in the same Block. The building facing Brant is a 9-storey (about 30 metres to the top of roof, plus 5 metres for the mechanical penthouse) office building (Quad II). To the south is an interior building (Quad I) at 11-storeys (36.3

3 - 3 - PL metres to the top of roof, and 41.5 metres, including mechanicals). The proposed Quad III building will share access, loading, outdoor amenity space (interior courtyard), and an internal circular driveway with the Quad I and II towers. The project was characterized by Quad as the third phase in a project designed to redevelop the entire Block. There will also be a mid-block pedestrian connection between Adelaide to the north and King Street to the south. There was general agreement among the witnesses that the project will improve upon the existing streetscape on Adelaide, provide a pedestrian environment and replace what is currently a parking lot and sales office. As indicated, the overall massing and step-backs are not generally at issue, and continued redevelopment of the Block is supported by the City. Issues and Position of the Parties As indicated at the outset, the main issue for determination by the Board is whether a minor variance should be authorized for an increase in height beyond what is permitted under the By-law. The City supports redevelopment on the Block, but not at the height proposed by Quad. While the Committee authorized the variance sought, Ms Hill explained that it did so without the benefit of a planning report, beyond a letter she prepared indicating that is was the view of staff that the variance for height should not be authorized. In deciding to appeal the decision taken by the Committee, Council determined in May of 2006, that a variance should only be authorized to permit the building to be constructed to a height of 29.6 metres, including mechanical penthouse. Rather than appeal the refusal by the Committee to authorize the variance requiring step-backs above the 20 metre height limit, Quad revised its plans and the variance is no longer necessary. However, in its review of the revised plans, City staff identified a new variance that is required to accommodate the balcony projection. This variance is also opposed by the City in addition to the variance in respect of height.

4 - 4 - PL Site Area and Applicable Planning Policies and Zoning There was considerable planning evidence provided to the Board with respect to the King-Spadina area generally and in particular, efforts by the City to encourage residential and mixed use development on older commercial and industrial sites. Briefly, over the past several years numerous new mixed use developments have been approved in the King-Spadina area in accordance with applicable City policies, most notably the King-Spadina Secondary Plan (Secondary Plan). While evidence was provided in respect of the Provincial Policy Statement (PPS), Metro Plan, and both the City s Official Plan and new Official Plan, the policies contained in the Secondary Plan are most important given the efforts the City has made to encourage reinvestment and redevelopment in the King-Spadina area. The Secondary Plan covers an area bounded by Bathurst Street to the west, Front Street to the south, Queen Street to the north and Simcoe Street to the east. The Urban Structure Plan identifies significant street and open space areas, as well as potential gateways, view terminus, building and landscape edges, and mid-block connections. The Quad site is not on a significant street although it is shown as containing a mid-block connection, which has been incorporated into the design. The Block is not an Area of Special Identity. Generally, the Secondary Plan promotes new investment in the King-Spadina area and sets out built form principles to be considered in evaluating new buildings proposed for the area. The Secondary Plan also provides specific policies that pertain to heritage buildings and building on significant streets, neither of which are applicable to Quad s proposal. The witnesses were in agreement that, for the most part, reinvestment in King- Spadina has been very successful. Redevelopment has resulted in an attractive downtown community which has an improved streetscape, pedestrian realm and achieved the stated objectives of the Secondary Plan to attract new investment to the area, protect heritage buildings, and support an active media, design and fashion community while at the same time introducing mixed use buildings and residential condominiums, including live/work units.

5 - 5 - PL The site is zoned RA, which imposes the 23 metre height limit (plus 5 metres to accommodate the mechanical penthouse) and the minimum 3.0 metre set-back from the main wall at 20 metres. However as Ms Hill explained, staff have supported variances for additional height beyond the 23 metre height limit up to about 29.6 metres on the condition that the additional height wraps around the rooftop mechanical equipment. Simply put, the mechanical penthouse, which would normally be above the top of roof (5 metres) may be wrapped with additional living space. This condition is permitted as long as it does not create any additional sun or shadow impacts. While the most recent By-law amendment (2006) is under appeal, it incorporates Council s view that increased height can be achieved by wrapping the mechanical penthouse to achieve additional living space above the 23 metre height limit. The position of Quad was that a building at eleven storeys would be consistent with both the existing and planned context for King-Spadina generally, and this Block in particular. At the north west corner of the Block is 425 Adelaide Street West, an older 11 storey commercial building with a height of approximately 42.5 metres. Directly to the east of the proposed building are a series of older buildings at approximate heights of 7.2 metres, 21.2 metres (with increased height to about 24.6/26.5 metres at the top corners of the building), and at the north east corner of the Block (Adelaide and Spadina) is a commercial building at 35.2 metres (rising to 38.7 at the corners). Clearly then, with the exception of the smaller building directly to the east of the site, the buildings along the south side of Adelaide on this Block are taller than the height limit of 29.6 metres recommended by the City. However, this circumstance is not surprising given the age of the existing buildings, especially those at the corner of Adelaide and Brant and Adelaide and Spadina. In considering the appropriate height, Quad looked in particular at new buildings and specifically the height permitted for Quad II, directly to the south. Quad argued that the proposed height for its third building is consistent with the surrounding height approved for Quad I and Quad II and, in the absence of any impact, the variance as requested should be authorized. With respect to the balcony projection Mr. Gladki testified that under the current plans, the only balcony that projects into the 3 metre step-back is at the 8 th storey. While the By-law requires a 3 metre step-back to be from the main wall, if the balcony is treated as that main wall then the By-law requirement is satisfied. In Mr. Gladki s view, the balcony projection is therefore a technical variance and minor in impact. In short,

6 - 6 - PL the City argued permitting any balcony projection defeats the purpose of the step-back above the 20 metre height limit. Decision In considering the variances, the Board is required to apply the tests set out in subsection 45(1) of the Planning Act. In light of the City s overall objectives for the area and Council s direction that some variance from the existing By-law requirements in respect of height is good planning, the Board finds that a variance in respect of height maintains the purpose and general intent of the Official Plan and Zoning By-law. Numerous projects in the area have proceeded through the minor variance process and received authorizations for increased height beyond what is set out in the By-law. In these instances variances for height have been found to maintain the purpose and general intent of the Official Plan and Zoning By-law and in this regard, Quad s application is no different. The real issue is whether the extent of the variance from the By-law Quad seeks for the increase in height is desirable, and minor in impact. The increase in height proposed by the City assumes a design that incorporates step-backs above the 20 metre height limit. The height of 29.6 metres includes the mechanical penthouse, which under the By-law is restricted to 5 metres. However, the mechanical penthouse can be wrapped thereby providing additional living space above 23 metres. Quad proposes metres, resulting in 11-storeys, which also includes the mechanical penthouse. There is a less than 10 metre difference between the parties (leaving aside the matter of the balcony projection); yet, the Board was told in evidence and submissions that the difference between the parties was material given the height limits adopted by Council for the King-Spadina area. In this regard, the City witnesses expressed particular concern that should a variance be authorized beyond what Council has directed be authorized, it would set an unfortunate precedent for other redevelopment in proximity to this Block. On the issue of precedent in the King-Spadina area, the Board disagrees. Each case must be decided on its own merit. Each Block is different, depending on the height limit, existing context and planned context. The City has authorized numerous variances in the area generally, depending on the proposal and impact, if any. The height limits under the existing zoning are 23 metres for most of King-Spadina, rising to 39 metres for buildings fronting onto Spadina. What is most

7 - 7 - PL significant is determining what is desirable for the land, accepting that both the City and Quad want the site redeveloped. While the height as proposed by Quad is consistent with the height approved for Quad II, that is an interior building. A better comparable is Quad I which has frontage on Brant Street and at nine storeys, is about (or just under) 35 metres, including the mechanical penthouse. While Ms Hill testified that Quad I on Brant was not, in her view, a complete success, there was no real indication of negative impact arising from the decision that was made to authorize the variance which resulted in the increased height limit for Quad I. With respect to the variance sought to authorize an increase in height to metres the Board finds that while the variance satisfies the tests under subsection 45(1) the Planning Act in respect of maintaining the general intent and purpose of the Official Plan and Zoning By-law, the request for an additional 10 meters (beyond what Council has approved) is neither desirable nor minor. The Board finds that in the circumstances what is desirable for the appropriate development of the lands is to authorize a variance from the By-law in respect of height which will result in a building largely consistent in height with Quad I on Brant Street. The Board therefore authorizes a variance from the By-law to permit a maximum building height of 34.6 metres, which will include the mechanical penthouse. The rooftop mechanical equipment may be wrapped, consistent with the policy of City and the 2006 proposed By-law amendment. Simply put, a new building fronting Adelaide within this particular Block is desirable, but its height should not exceed the height of the building at the northeast corner of Adelaide and Spadina, where increased heights are permitted as of right. In considering the matter of height, significant evidence was provided with respect to policies contained in the new Official Plan, in particular those that relate to tall buildings. For the purpose of this minor variance application it is not necessary to comment on these policies, other than to note that the general thrust is to situate taller buildings to the east of King-Spadina, toward the financial district. As indicated previously, the Board is persuaded that what is most relevant in determining desirability of the height variance is considering what has occurred on the Block where the Quad Lofts buildings are situated.

8 - 8 - PL The Board finds that a variance should be authorized to accommodate a balcony projection. The reason for this conclusion is that there is no discernable impact associated with the projection. The balcony itself will have a glass railing and is well incorporated into the overall design of the building. Quad revised its plans following the determination by the Committee that a step-back is necessary at the 20 metre height limit. With the step-back incorporated the By-law requirement is respected and the minor variance necessary for the balcony projection is technical, minor, and should be authorized. There was no evidence of impact for the balcony projection, other than a suggestion of crowding into the rear interior courtyard. Similarly, variances 1 through 4, described below and which were not appealed, and are not in dispute, are authorized by the Board. The decision of the Board is that the appeal is allowed in part, and the following variances from the provisions of the By-law are authorized: 1. The By-law requires an apartment building containing more than 30 dwelling units to have 1 - type G loading space with a minimum width of 4.0 metres and a length of 13.0 metres. No loading spaces are being provided. 2. The By-law requires square metres of outdoor residential amenity space. The proposal contains 70 square metres of outdoor residential amenity space. 3. The By-law requires the portion of a building located beyond 25 metres from a street or public park to be set back a minimum distance of 7.5 metres from the side and rear lot lines. The proposed building is set back 0.01 metres from the east side lot line, 0.01 metres from the west side lot line and 0.40 metres from the rear lot line. 4. The By-law requires apartment buildings more than 2800 square metres to provided and maintain an unobstructed, hard surface driveway that serves as an entrance to the building and is laid out so that motor vehicles can enter and leave the lot while driving forward in one continuous movement. No driveway is being provided.

9 - 9 - PL The By-law limits a building to a maximum height of 23.0 metres, plus 5 metres for the mechanical penthouse. The Board authorizes a maximum building height of 34.6 metres, which includes the 5 metre allowance for the mechanical penthouse, which may be wrapped. That portion of the building exceeding a height of 20 metres shall be set back at least 3 metres from the main front wall as required under the By-law, with the exception of any balcony projection. At the request of Ms Rosenthal, whose client s appeal was resolved at the commencement of the hearing, the Board attaches the Minutes of Settlement (Exhibit 21) as Attachment 1 to the decision. The Board s Order is withheld pending finalization by the parties with respect to appropriate conditions necessary to implement the decision of the Board. Counsel indicated that the conditions of any authorization would vary somewhat depending on the decision of the Board with respect to the height variance and balcony projection variance. The parties are to file agreed upon conditions within 60 days of the date of this decision. Thereafter the Board s Order will issue. If any difficulties arise with respect to the conditions, the Board may be spoken to through the planner and a telephone conference call may be arranged. J. de P. Seaborn J. de P. SEABORN VICE- CHAIR

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