1343 Ontario Municipal Board Commission des affaires municipales de l Ontario

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1 ISSUE DATE: Aug. 18, 2004 DECISION/ORDER NO: 1343 Ontario Municipal Board Commission des affaires municipales de l Ontario PL Ontario Ltd. has appealed to the Ontario Municipal Board under subsection 22(7) 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 the Official Plan for the City of Toronto to redesignate lands from Employment District to allow Residential use O.M.B. File No. O Ontario Ltd. 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 make a decision to enact a proposed amendment to Zoning By-law 1-83 of the City of Toronto to rezone lands respecting 21 Oak Street from Prestige Employment (PE) to Residential Multiple Zone (RM2) to permit the development of 105 three-storey townhouses O.M.B. File No. Z APPEARANCES: Parties Counsel Ontario Ltd. A. Brown City of Toronto Satin Finish Hardwood Flooring Inc. Canadian National Railways R. A. Robinson K. Matsumoto C.A. Lyons M. Hackl Participant Visioneering Corp. DECISION DELIVERED BY M.A.F. STOCKTON Ontario Ltd. has appealed to the Board from the refusal or neglect of the council of the City of Toronto to enact a proposed Official Plan amendment and an amendment to Zoning By-law 79B-25 to permit the development of 105 townhouses on the subject lands.

2 - 2 - PL GENERAL DESCRIPTION 21 Oak Street (the subject property) is situated in an area south of Highway 401, east of Weston Road. It is directly bounded on the south by the Canadian National Railway line, and on the east by the Canada Pacific Railway. It is located on the south side of Oak Street, just off Weston Road in the former City of York. The site is currently vacant. The proposal is for a condominium development of 105 units with freehold tenure. The units are to be approximately three (3) storeys in height. All units, according to a revised plan filed at the hearing, will be accessed by a private condominium road. The subject property is approximately 25,954 square metres (279,376 sq ft) or 6.4 acres (2.5 ha). It is a diamond shape, with approximately metres (472.7 feet) of frontage on Oak Street. The land uses north of the site are predominately commercial and industrial. Satin Finish Hardwood Flooring Inc. (Satin Finish) is located at 8 Oak Street, directly across from the subject lands. The Knob Hill Farms Terminal building at 2549 Weston Road is currently being used for discount retail. The Crossroads Plaza at 2625 Weston Road is located in the southeast quadrant of Highway 401 and Weston Road, and includes Canadian Tire, The Brick, and LCBO. Also, a new residential development of single detached dwellings and townhouses has recently been completed northeast of the subject property. A portion of this development along the Oak Street frontage is maintained for employment use, but is currently vacant. To the south, the land uses are predominately low density residential. Directly across from the site, on the opposite side of the Canadian National Railway tracks, are neighbourhoods of single detached dwellings. A recently completed residential development is located in the area of Queenslea Avenue and Rosemount Avenue, approximately 80 single detached dwellings. To the east, the land uses are predominately low density residential. However, directly east of the site, on the opposite side of the Canada Pacific Railway tracks, is Visioneering Corp. (Visioneering) at 35 Oak Street.

3 - 3 - PL To the west, the land uses are predominately commercial. Smaller businesses located adjacent to 21 Oak Street include FurnitureToronto.com, Ward Broome Coating Ltd., Hardwood Floors Centre, and AccuContracting Limited. There are a number of public and Catholic elementary and secondary schools in the area. Public transit is readily available, with daytime TTC bus service available on Oak Street and full bus service on Weston Road. A new public park (within the subdivision on the lands formerly known as 50 and 60 Oak Street) is located southeast of 21 Oak Street on West Oak Crescent. Currently, the park is not maintained and has not officially been named. Additional parks located east of the site include Pallette Parkette, Rosemount Park, and Gary Park. The Planning Framework The Official Plan for the former City of York is still in effect with respect to the subject lands. The site is designated as 'Employment', which permits uses including industrial, design, research, office, business service and major retail activities, such as recycling, composting and other reclamation industrial uses. The site is included in the Weston Secondary Plan area and identified as the Oak Street Employment Area. The purpose of the Official Plan Amendment before the Board is to re-designate the site as 'Low Density Residential', which are areas predominantly consisting of single detached, semi-detached and street townhouses. The site is zoned PE (Prestige Employment) which permits uses such as industrial uses, office uses, retail and/or showroom uses, design centre, business service, motor vehicle sales/rentals, and day nursery. The purpose of the Zoning By-law Amendment before the Board is to place the subject property in the RM2 Residential Multiple Zone, which permits uses such as townhouse, stacked townhouse, a street townhouse, and a stacked street townhouse, and to provide specific regulations to allow for storey townhouses, gross floor area limitations, maximum building height, building envelopes and landscaping. It was the evidence of Robert Dragicevic, an expert planner testifying on behalf of the appellant, that the York Plan allows a change of use of employment lands to residential, encourages a full range of housing types, including townhouses, requires

4 - 4 - PL compatibility between existing industrial uses and new residential development, and permits street townhouses. As mentioned, the York Plan also contains Specific Area Policies (section 21), including the Weston Community Plan, and Appendix A to the Weston Community Plan, which designates the subject lands as part of the Oak Street Employment Area. The secondary plan does not specifically permit changes in use, nor does it appear to prohibit such changes. Mr. Dragicevic gave his opinion that, in any event, the Weston Community Plan does not override the York Plan. Furthermore, section 12.8 of the York Plan states as follows: Council may, without amendment to this Plan, introduce residential or live/work uses in locations designated for Employment, subject to a rezoning and based on the following considerations; location s potential for employment activity; impact of residential, live-work development on existing employment and residential activities in the surrounding area; environmental suitability for residential development; availability of social and community services and residential amenities. It was Mr. Dragicevic s opinion that an amendment to the York Official Plan may not even be necessary, and that, provided the four listed criteria were met, a zoning bylaw amendment may be sufficient. However, section 6.4 of the Weston Community Plan states with respect to the Oak Street Employment Area: Permitted Uses and Heights a) Within this area, Council may pass by-laws to permit a broad range of employment uses other than municipally prohibited uses. Buildings shall range in height from 4 storeys (16 metres) up to 8 storeys (32 metres) in height. New development would be subject to appropriate setbacks to adjacent residential areas and to the railway. Ed Murphy, an expert planner giving evidence on behalf of the City, and Peter Smith, an expert planner giving evidence on behalf of Satin Finish, both disagreed with Mr. Dragicevic s interpretation on section However, Mr. Smith admitted on cross-

5 - 5 - PL examination that there was a conflict in the language of the two sections, and that section 12.8 of the York Plan was passed after section 6.4 of the Weston Community Plan. The Official Plan of the Municipality of Metropolitan Toronto, (the Metro Plan ), was approved by the Minister of Municipal Affairs on December 30, 1994, and remained in force at all relevant times in this appeal. Under the Metro Plan, the subject lands are clearly not mapped as Industrial/Employment Areas (Map 4). In the view of Mr. Dragicevic, the Metro Plan allows for integration of residential development provided the neighbouring uses are not incompatible, and specifically cites as an objective the redevelopment of obsolete industrial lands for residential purposes (section 122 (b)). While this was not disputed, Mr. Murphy pointed out that the Metro Plan states that redesignation will be supported only where it will not result in small pockets of industrial sites or the disruption of existing economically viable industrial uses. The new Official Plan for the City of Toronto remains in draft form and under appeal before the Ontario Municipal Board. If the mapping remains unchanged in the final form, there is no doubt that the subject lands would be designated as within an Employment Area (Map 13). Both Mr. Murphy and Mr. Smith emphasized the employment strategies contained in the new plan, and suggested that the Oak Street area was a key component of these strategies. It was Mr. Dragicevic s expert opinion that the proposed development complied with all of the relevant planning documents. Both Mr. Smith and Mr. Murphy held contrary views, relying heavily on the new Toronto Official Plan. The Board makes no finding on whether an Official Plan Amendment is necessary under section 12.8 of the York Plan or not. The fact is that an Official Plan Amendment is before the Board for adjudication. Nevertheless, in all other respects the Board prefers the opinion of Mr. Dragicevic, and agrees that the proposed amendment complies with the relevant planning policies of the York Official Plan and the Metro Plan. The new draft Toronto Plan, while providing some guidance to the Board, is not yet in force. The valid planning documents, which are the Metro Plan and the York Plan, do provide a mechanism for redesignation. Furthermore, the new draft Toronto Plan is schematic, and the Oak Street area is at the fringe of the employment area.

6 - 6 - PL The Board finds that the proposed development is in conformity with the policies contained in the approved Metro Plan and City of York Plan. Compatibility with Adjoining Land Uses Dealing first with the compatibility of the proposed development with the adjacent rail lands, the Board notes that at the outset of the hearing, Canadian National Railways (CN), represented by counsel, filed with the Board a copy of an agreement entered into by the Appellant (exhibit 1). The Board has reviewed its contents and is satisfied that the terms and conditions as required by CN are appropriate under the circumstances. The Board also heard uncontradicted evidence that CP Rail will be satisfied with the same features required by CN. In addition, the Board has before it the evidence of Alan Milhalj, testifying on behalf of the Appellant, largely uncontradicted on this point, that the proposed berm and wooden fences will be sufficient to isolate the proposed development from unacceptable noise and vibration. With respect to the issue of compatibility with neighbouring industrial uses, the Board heard evidence of the nature of the operations of Satin Hardwood and Visioneering, to the north and east, respectively, of the subject lands. Satin Hardwood is a light industrial wood fabricating plant, manufacturing hardwood flooring and storing product at the rear of the site. Outdoor storage is not permitted by the zoning by-law, and this aspect of the operation is a legal non-conforming use. This may impose some restriction on any further expansion. Visioneering, to the east, is a metal fabricating plant. The area immediately facing the subject lands is used for truck loading and unloading. Both operations have invested in noise suppression as a result of the two new residential subdivisions to the east. Mr. Milhalj was qualified by the Board as an expert on noise and vibration as it relates to land use planning, Ministry of Environment guidelines and traffic issues. Richard Kolomeychuk was qualified by the Board as an expert on air quality. Both gave expert opinions in their respective fields as to the compatibility of the proposed development with Satin Finish and Visioneering, and the smaller businesses to the west. While it is important to note that there is no requirement on the part of any responding party, or participant, to call like experts, the practical difficulty for such parties is that in many areas, the proponent s expert evidence remains, in large part,

7 - 7 - PL unopposed. There are no experts in the same field by which the Board can measure his or her opinions, and in the final analysis, the proponent s expert evidence has not been controverted by opinions or views of equal standing. Such is the case, in the Board s view, in this appeal. Both Mr. Milhalj and Mr. Kolomeychuk gave their evidence, supported by reports that they had prepared and filed as exhibits. Both opposing counsel cross-examined well, and raised some issues about the methodology that they had used. However, these issues were not sufficient, in the Board s opinion to discount their evidence. The only opposing views came from Mr. Smith and Mr. Murphy, land use planners, and Kyle Benham, who was qualified before the Board as a land use planner with expertise in economic development. None of these witnesses had special expertise in noise abatement, vibration, odours or traffic. Reference was made several times to a Mr. Coulter, a noise expert for Satin Finish, but he was not called as a witness. In the end, the Board is left with the evidence of Mr. Milhalj and Mr. Kolomeychuk as the best evidence before it. Mr. Milhalj testified that he had visited the subject site on ten (10) occasions, for a total of forty (40) hours. His report recommended that certain mitigating features, to be discussed later, be incorporated into the proposal. While he was questioned on cross-examination about stationary noise from bins at the Renkel site (to the west), from forklifts at the rear of Satin Finish, and truck noise, overall, the Board was left with the view that he had done a good job of assessing sound sources in the area. As noted, there were no witnesses or reports to contradict substantially his findings. Questions were raised also concerning Ministry of Environment guidelines and his compliance with them. All of the witnesses agreed that they are guidelines only and not determinative of this planning process. Nevertheless, the Board is of a view that his studies and report showed full regard for the standards contained in those guidelines. The Board also heard from William Wiener, the owner of Visioneering Corp. who stated that he had moved his business to the area in the early 1990 s on the assumption that it would remain industrial in nature. He noted that the area had begun to change to a greater residential use, and that he has had to spend a considerable amount of money on environmental mitigation. On cross-examination, he stated that he was currently operating within all Ministry guidelines. He was not familiar with the vibration and noise studies prepared by Mr. Milhalj.

8 - 8 - PL The Board accepts the opinions given by Mr. Milhalj and Mr. Kolomeychuk. Their reports have indicated that with sufficient buffering and mitigation the proposed development will be compatible with surrounding land uses. Accordingly, the Board finds that the proposed redesignation of employment uses to residential uses is appropriate and compatible with surrounding uses, and that it is acceptable and compatible with respect to noise, impact from proximity to railway operations, impact on nearby or adjacent railway operations, truck operations, dust and odour, and in particular whether the proposal meets all MOE and other guidelines with respect to noise. Proposed Living Environment A great deal of time was expended at the hearing on the proposed development itself. The Board was taken through a review of the Toronto Urban Design Guidelines for Infill Townhouses. These guidelines, while not a planning policy document as such, deal with such matters as building location and separation; light, view and privacy; streets and parking. There remains some dispute between the parties as to the extent to which the design features of the proposed development comply with these guidelines, and the extent to which such features need to comply. Many of the design issues in dispute are in fact site plan issues; however, the site plan agreement was not before the Board. The zoning by-law is required to include a footprint of the development as part of the zoning amendment, which the Board is unwilling to approve until the site plan issues are resolved. Generally, however, the Board is well satisfied, from the evidence provided relating to separation distances, site orientation, and buffering that the living environment of the proposed residential use will be quite acceptable. From the evidence of the appellant s expert witnesses, it is clear that a number of mitigation measures are necessary and the Board finds that these measures are reasonable and appropriate in the circumstances. In summary, the Board is prepared to approve the development in principle to permit the development to proceed, and will be prepared to approve the Official Plan Amendment and zoning by-law amendment, without approving an exact number of

9 - 9 - PL units, once the site plan issues are resolved. This will be reflected in the Board s decision. Future Use of Subject Lands Douglas Annand, an expert in market analysis and land economy, testified on behalf of the Appellent. It was his view that the subject property was not a strategic site for maintenance of employment lands, and that it was too small to have a significant impact on employment. He stated that the failure of the Metro Plan to designate the subject lands as within an employment area was an indicator that they were not part of a larger citywide employment strategy. While considered to be part of the 400 corridor (that is, lands along the 400 highway), the subject lands, he felt, being located south of highway 401, were more appropriately considered part of the Weston economic area, where there has been a reduction in employment. He summarized by saying that the Oak Street area is in transition, with large retail, and residential growth now mixed with earlier industrial use. Mr. Annand also stated that neither of the two existing larger manufacturing facilities in the area, namely Satin Finish and Visioneering, would be a catalyst for future employment growth. Of the subject site, Mr. Annand stated that its relatively small size, without a building, makes it unlikely to be attractive to a manufacturing buyer. In giving evidence on behalf of the City, Kyle Benham placed a great deal of emphasis on the new Toronto draft plan and its focus on employment areas, of which Oak Street is identified as part. He provided data (exhibit 39) to show that employment in the manufacturing sector is down in the Oak Street area, but overall, employment is steady. He acknowledged that the Oak Street area is undergoing a transition from industrial to mixed industrial and retail, but argued that there has been overall growth in manufacturing in the 400 corridor over the past 5 years. The Board prefers the evidence of Mr. Annand as to the history and potential for future employment growth in the Oak Street area. It clearly is undergoing a transition from an industrial area, a fact which Mr. Benham conceded in his evidence. There have been large retail developments to the north, and two recent residential developments to the east.

10 PL With respect to these residential developments, it was Mr. Murphy s contention that these two residential developments, on the edges of the Oak Street employment area simply realigned the boundary between residential and industrial land uses, and were therefore acceptable. By contrast the proposal would place a residential development in the middle of an industrial area. On this issue, the Board is of the view that the Oak Street area must be viewed in a broader context. The two industrial uses in question, Satin Finish and Visioneering, have co-existed beside the two recent residential developments for a number of years. In some areas the separation between the residential use and the industrial use is less than what is being proposed. Furthermore, the proposed development borders on existing residential development to the south, separated only by the rail corridor discussed earlier. Furthermore, the Board is not satisfied that the site, which is now vacant, can usefully be restored to an industrial use. It has been available to purchasers for a number of years without a realistic proposal for its redevelopment to industrial use. The potential for new employment, if a new building appropriate to the size of the site were erected, would be jobs. This represents less then 1% of the total employment in the 400 Corridor. It is the Board s view that its use as residential lands, with the ensuing property tax revenues would be a vast improvement over its current condition. For these reasons, the Board finds that the proposed redesignation from employment uses to residential uses will not significantly reduce employment opportunities, nor create other negative economic or financial impacts on the local employment district. The Board further finds that the proposed redesignation will not have a negative impact on the long-term viability of surrounding businesses and the Oak Street Employment District, nor set an undesirable precedent. Infrastructure The area appears to be well served by elementary and secondary schools of both the public school board and the Catholic Board. The public board had no objections to the proposed Official Plan Amendment and zoning amendment.

11 PL The Catholic Board was opposed, stating that it had concerns about the capacity of its schools. The Catholic Board will, however, be eligible for development charges as units are constructed. Retail shopping is readily available on Weston Road to the west, and at the new Crossroads development to the north. Churches, hospitals, libraries and recreation facilities are available nearby. Overall, the Board finds that the proposed redesignation of employment uses to residential use is appropriate having regard for the accessibility of and proximity to community infrastructure. Transit The area is well serviced by the TTC with rush hour service on Oak Street and regular service on Weston Road to the west. Between the subject property and Weston Road, Oak Street is a four-lane road with sidewalks on both sides. It is a five-minute walk from the subject property to Weston Road. In addition, the area is serviced by the Weston GO station, located near Weston Road and Lawrence Avenue to the south. TTC connections to the GO station are good. Some safety issues were raised with respect to pedestrian traffic crossing the railway line, which intersects Oak Street to the east. Most of the retail amenities and transit are in the Weston Road area to the west, in the opposite direction. Furthermore, the two new subdivisions referred to are located east of the rail crossing, requiring pedestrian traffic from that direction to cross the rail line to get to Weston Road. The Board finds, therefore, that the presence of the rail crossing is not a significant safety issue in this case. The Board finds that the proposed redesignation of employment uses to residential uses is appropriate having regard to existing and planned transportation infrastructure, including, but not limited to, transit and pedestrian linkages. Parkland Dedication The Board heard evidence about the location of several parks in the area, including an undeveloped parkette within a few hundred yards of the subject property.

12 PL Notwithstanding this, the City is requesting, should the Board allow this appeal, that the proponent be required to dedicate 0.29 acres of the subject property for an additional parkette. The result of this dedication would be a reduction of 6 units. The City argues that although the existing parks are located within a short radius, the walking distance is in fact much greater owing to the layout of local roadways. The proponent asserts that this park dedication is unnecessary given the availability of other parks in the area, and that a cash-in-lieu payment would be more appropriate to assist in upgrading existing facilities. Mr. Dragicevic testified that sufficient amenity space could be provided on the site, without setting aside parkland. The Board agrees. A small parkette (Rosemount Park) has been dedicated at the south end of Yelland Street, just west of the Rosemount subdivision, but has not yet been improved. A cash-in-lieu payment would allow improvement of this parkette, without another park dedication, which might also remain unimproved for an indeterminate length of time. In other words, the overall park situation will be enhanced by way of a cash-in-lieu payment, and another park dedication will, as a contrast, be more piecemeal. The Board finds that the amount, location and configuration of the parkland being proposed is sufficient to adequately meet both the needs of the residents of the proposed development and the City s usual planning objectives and standards for public parks. Decision For all of the above reasons, the Board approves the Official Plan amendment and zoning by-law amendment in principle, generally in accordance with exhibit 50. The Board s order will be withheld, however, until: The agreement with Canadian National Railways has been registered, and proof of registration has been provided to the Board. A site plan agreement has been prepared and entered into between the proponent and the City.

13 PL The Board has been provided with the necessary draft documents that have been refined to incorporate the requisite footprint flowing from the site plan deliberations. The Board will remain seized of this matter, and in the event that no agreement in respect of the site plan is reached, the matter may be spoken to. M. A. F. STOCKTON MEMBER