PL090501

Rams Head Development Inc. 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 438-86, as amended, of the former City of Toronto to rezone lands respecting 251-255 King Street East and 37 Sherbourne Street from “RA” Reinvestment Area to include a site-specific zoning by-law amendment to permit the redevelopment of a new eighteen storey mixed use building with 147 dwelling units, retail space at grade and underground parking OMB Case No. PL090501 OMB File No. PL090517 IN THE MATTER OF subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Subject Site Plan Referred by Rams Head Development Inc. Property Address/Description 251-255 King Street East and 37 Sherbourne Street Municipality City of Toronto OMB Case No. PL090501 OMB File No. PL090501 IN THE MATTER OF subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18, as amended Appellant Rams Head Development Inc. Subject Appeal of the Decision of Council on an application

to demolish or remove a building or structure Property Address/Description 251-255 King Street East and 37 Sherbourne Street Municipality City of Toronto OMB Case No. PL090501 OMB File No. MM100006 A P P E A R A N C E S :

Parties Counsel Rams Head Development Inc.

K. M. Kovar

City of Toronto

G. A. McKay

DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER AND PARTIAL ORDER OF THE BOARD

Ontario Municipal Board

Commission des affaires municipales de l’Ontario

ISSUE DATE:

Nov. 4, 2010

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Background

Rams Head Development Inc. [Rams Head] wishes to redevelop three properties at the southeast corner of King Street and Sherbourne Street in the City of Toronto. The site is within the old Town of York that grew to become the City of Toronto. The site is also within an area that is designated in the Official Plan as a Regeneration Area where investment and intensification are encouraged. The Parties agree that no Official Plan amendment is required.

The proposal is for a mixed use residential condominium development with retail at grade. At the northwest corner of the subject lands is 251 King Street East. This site contains a three storey structure known as the National Hotel that has been listed on the City’s inventory of heritage properties since 1973. The City designated the property under the Ontario Heritage Act in late 2009, more than 15 months after Rams Head filed its planning application with the City.

The subject lands include a two storey building at 253-255 King Street East, immediately adjacent to the east of the National Hotel building, which has retail at grade and commercial uses above. The subject lands also include a two-storey building to the south at 37 Sherbourne Street which contains commercial uses. Neither of these properties is either listed on the City’s inventory of heritage properties or designated under the Ontario Heritage Act.

The matters before the Board are a proposed Zoning By-law amendment, details of a proposed site plan, and an application under s.34.1(1) of the Ontario Heritage Act to demolish or remove the designated heritage structure.

Preliminary Matters

Contraction of the Issue List:

At the outset of the hearing, the Board was advised that the Parties had settled nearly all issues dealing with the proposed site plan. Only two issues remained for the site plan matter:

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1. Is there a fire hydrant (existing or to be installed) no more than 45 metres from a fire department Siamese connection, as called for by the Fire Department?

2. Is an updated Servicing Study required to identify what improvements to the existing infrastructure are required to accommodate the proposed development?

The following issues were identified for the proposed Zoning By-Law amendment under the Planning Act and the demolition application under the Ontario Heritage Act:

1. Will the proposed project negatively impact the designated heritage building on the property known as the "National Hotel", and if so, should the requested zoning amendment be made?

2. Can or should the existing north and west walls of the heritage building be left intact, and in place, if the proposed high-rise building is built?

3. Should a Demolition Permit be issued in respect of the heritage building known as the "National Hotel"; if so, what are the conditions and limits to be attached to that permission?

4. Should the Board defer a decision on the question of demolition of the heritage building until a Heritage Conservation District Plan for the old Town of York is completed and assessed?

5. Does the proposed building meet with principles of good urban design, and is the City of Toronto's strategy for development, as outlined in the planning staff Request for Directions Report preferable?

6. What benefits or facilities under Section 37 of the Planning Act, if any, are to be required, and to be set out in the Zoning By-law?

The original application involved demolition of the entire building with accurate reconstruction of the northern and western walls which are the principal façades. The Parties agreed that, in view of a February, 2010, revised application to retain the north and west façades in situ, Issue 2 could be deleted. The Parties also agreed that Issue 4

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was no longer applicable and that Issue 6 had been resolved. The Board was left with Issues 1, 3, and 5.

The City asserted that Issue 1 should encompass consideration of retention of all four exterior walls in situ. Rams Head challenged this interpretation of Issue 1 and Counsel for Rams Head submitted that the retention of all four walls was not part of her understanding of the intent of the language in Issue 1. Counsel for the City advised that retention of all four walls in situ had always been his intention in drafting Issue 1. Both were acting as Officers of the Court in advising the Board of their different understandings of the intent of Issue 1, and the Board makes no finding on the question of which understanding is correct. Instead, the Board considered the very general language of this Issue and found that this language can reasonably include the question of the possible retention of all four walls in situ. Issue 1 remained on the Issue List.

Board Jurisdiction:

In her expert witness statement, filed as Exhibit 37 in these proceedings, Ms Sherry Pedersen, the Heritage Preservation Co-ordinator for the City within the City Planning department, considered the revised application to retain two walls in situ and stated:

“…The current proposal is to retain in situ the King and Sherbourne Street elevations [the north and west façades] of the heritage building. In accordance with s.33(1) of the Ontario Heritage Act, the revised proposal constitutes an alteration affecting the heritage attributes of a property designated under Part IV [of the Act]. The owner is required to apply to and receive Council’s consent for such alterations. While the decision of Council can be referred to the Conservation Review Board for its consideration, in accordance with s.33(13) of the Act, the decision of Council is final and not appealable to the Ontario Municipal Board…”

On its face, the statement is a collateral attack on the jurisdiction of this Board to hear and decide an appeal under s.34.1(1) of the Ontario Heritage Act of a refusal of an application for demolition where the specified terms and conditions this Board may impose under s.34.1(6)(b) might include a requirement that certain façades are to remain in situ.

Section 34.1(6) of the Ontario Heritage Act states:

(6) After holding a hearing, the Board may order

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(a) that the appeal be dismissed; or

(b) that the municipality consent to the demolition or removal of a building or structure without terms and conditions or with such terms and conditions as the Board may specify in the order.[emphasis added by the Board]

“Demolition” is not a defined term in the Ontario Heritage Act, nor does the Act impose any restrictions on the terms and conditions the Board may specify in the Order issued under s.34.1(6)(b).

The position taken by Ms Pedersen was not advanced by Counsel for the City and the City does not challenge the Board’s jurisdiction to hear and decide this appeal under s.34.1(1), including the possible imposition of terms and conditions under s.34.1(6)(b) that the north and west façades be retained in situ as part of a Board Order that the municipality consent to the demolition.

Having regard to s.34.1 of the Ontario Heritage Act, and having heard the submissions of Counsel for the City and Counsel for Rams Head, the Board finds that the Board has full jurisdiction to hear and decide the appeal under s.34.1(1), including the possible specification and imposition of terms and conditions under s.34.1(6)(b) that would result in the retention in situ of certain façades of the heritage building as part of a Board Order that the municipality consent to the demolition.

Exclusion of Participant:

The Procedural Order in these matters issued on December 3, 2009. In addition to identifying Participants to these proceedings, the Procedural Order also required Participants to file with the Board and all Parties a Participant Statement at least 10 days prior to the commencement of the hearing or the Participant may not be permitted to give oral evidence at the hearing. The Procedural Order also set dates for expert witness statements to be filed and for any visual evidence to be disclosed.

Mr. David Sisam was recognized as a Participant in these proceedings at that prehearing conference. Unlike several other Participants in these proceedings, Mr. Sisam did not file a Participant Statement or any other materials indicating the matters he intended to address as a Participant.

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Mr. Sisam sought leave of the Board to be heard as a Participant in these proceedings and to file a sun/shadow study done by planning and urban design consultants retained by Mr. Sisam for that purpose.

The City did not object to Mr. Sisam’s request; Rams Head did object.

Mr. Sisam is a new resident of the condominium development at the corner of King Street East and Princess Street. This condominium, at 275 King Street East, is adjacent to the east of the Abbey Lane Lofts condominium development that is, in turn, adjacent to the east of the subject site. Mr. Sisam was in attendance at the prehearing conference where a panel of this Board, differently constituted, reviewed the requirements of the Procedural Order. Mr. Sisam acknowledges that he received a copy of the written Procedural Order and read it.

Mr. Sisam also acknowledges that he retained experts to do a sun/shadow study but made no arrangements for the authors of the study to be in attendance to speak to the study and be tested, should the Board decide to admit the study and hear evidence on it. The sun/shadow study was not done on the revised application of February, 2010, which Mr. Sisam acknowledges having received. The sun/shadow study was completed and provided to Mr. Sisam prior to the deadline date for expert witness statements to be exchanged and well prior to the date for disclosure of visual evidence but was not disclosed to the Parties.

As this panel of the Board stated in case PL071227 (Bond Head Development Corporation v. Town of Bradford West Gwillimbury) issued August 19. 2009:

…Procedural Orders are requirements, not suggestions. In the case of required filings, such as Participant Statements, the purpose is to ensure that the Parties are aware of matters that may arise and have an opportunity to take the steps they consider appropriate in determining the case they intend to call.

In matters where there has been no compliance with a Procedural Order, the Board looks first at the reason for the non-compliance…

Mr. Sisam advised the Board that he was unfamiliar with Board procedures, did not disclose the sun/shadow study because he wanted to circulate it within his building as supporting documentation for a petition of residents indicating opposition to the Rams Head proposal, did not realize that the study, if admitted, would require the

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attendance of the author or authors to be tested on the study, and did not realize that his Participant statement needed to be filed in advance.

The Board does not find this explanation credible. Mr. Sisam is an architect with some 40 years of experience. The Board takes Notice of the fact that the consultants he retained to do the sun/shadow study appear frequently as experts before this Board and are well familiar with the Board’s procedures. Mr. Sisam himself was in attendance at the initial prehearing conference and acknowledges having received and read the Procedural Order. The requirement to prepare a Participant Statement is not an onerous one and there was ample time to do so – more than five months between the date of the Procedural Order’s release and the filing date for Participant Statements. The sun/shadow study was in Mr. Sisam’s possession more than a month prior to the start of these proceedings and deliberately withheld. Circulation of the study to the condominium residents could easily have been done at the same time that the study, and associated Participant Statement, were filed as required by the Procedural Order.

The Board finds that there are no unusual or extenuating circumstances that would explain Mr. Sisam’s failure to file a Participant Statement. He simply did not do so. The Board heard Mr. Sisam for the purposes of understanding why he did not comply with the Procedural Order. Not being persuaded by his explanation for non-compliance, the Board declined to hear Mr. Sisam on the merits.

Addition of Participant:

Mr. Rollo Myers was initially on the City’s witness list to give evidence regarding heritage matters. Mr. Myers prepared a witness statement which was disclosed by the City to Rams Head in accordance with the requirements of the Procedural Order. As the hearing progressed, the City advised the Board and Rams Head that it would not be calling Mr. Myers after all. Mr. Myers still wished to address the Board and sought leave of the Board to be a Participant in these proceedings. Both the City and Rams Head consented to the addition of Mr. Myers as a Participant. Since Mr. Myers had prepared a witness statement that had been duly exchanged in accordance with the requirements of the Procedural Order, Rams Head was fully aware of the Mr. Myers’ anticipated evidence and Rams Head would not be prejudiced by the shift in status of Mr. Myers from witness called by the City as part of its case to witness appearing as a Participant.

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Under these circumstances, and hearing no objection, the Board added Mr. Myers as a Participant in these proceedings.

The Merits

Evolution of the Proposal:

Rams Head submitted its planning application to the City on July, 21, 2008. A Heritage Impact Statement dealing with the listed building at 251 King Street East was part of the formal application submission. The initial proposal called for the demolition of this building, with the reconstruction of the north and west exterior walls as part of the new development. The proposed new building was to be eighteen storeys with a seven storey podium that would wrap around the three storey heritage façade and include an instep above the heritage façade.

As a result of site constraints, the proposal included six levels of underground parking that would be accessed from vehicular elevators. A combination of brick quality and sand blasting, believed to have occurred many years ago, resulted in the deterioration of brick on the north and west exterior walls. The supporting documentation with the original application cited a concern that vibration from the excavation for the six levels of underground parking would impact the structural integrity of these two walls. The proposed demolition of the listed building and the accurate reconstruction of the north and west exterior walls, utilizing appropriate brick from the east and south exterior walls, was identified by Rams Head as the solution to these challenges.

The City referred the development proposal to the City’s Design Review Panel, a 12-member, external, independent advisory group composed primarily of practicing architects. At its meeting of September 24, 2008, the Design Review Panel considered the proposal and, according to the minutes of that meeting, concluded that:

“…the heritage building was significant for contextual reasons, as opposed to an architectural landmark, and suggested that its integration into the new construction was a suitable method for its retention…”

The Design Review Panel also made a number of suggestions, both to improve the contrast between the old and new buildings as well as other urban design matters.

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Following further consultations with the community, the ward councillor and City staff, Rams Head filed a revised proposal in May, 2009.

City Council did not approve the planning applications. Rams Head filed appeals of the planning matters to this Board on June 12, 2009.

On June 19, 2009, Rams Head submitted a notice of intention to demolish the listed building at 251 King Street East. Included in this application were proposed conditions of approval to secure the reconstruction of the principal façades of the building, namely the north and west exterior walls. At its meeting of August 5 and 6, 2009, following this application to demolish what was then a listed building, City Council issued a notice of intention to designate the property under section 29 of the Ontario Heritage Act. No objections were received and on October 27, 2009, the City designated the property at 251 King Street East under Part IV, section 29, of the Ontario Heritage Act. Prior to this designation, in mid-October, anticipating the designation of the property and pursuant to sections 30(2) and 34(1) of the Ontario Heritage Act, Rams Head submitted an application to demolish the designated heritage building at 251 King Street East.

In reports of October 5 and 20, 2009, to the Toronto Preservation Board and to the Toronto and East York Community Council, City Planning staff recommended refusal of the application to demolish the heritage building at 251 King Street East and accurately reconstruct the north and west exterior walls using salvaged material from the east and south walls. The October 5, 2009, report identified willingness by staff to consider the proposal further if the two principal façades of the heritage building, i.e., the north and west exterior walls, were retained in situ rather than being demolished and accurately reconstructed.

The Toronto Preservation Board considered the reports at its meeting of October 22, 2009. The Board disagreed with City staff and, instead, recommended that City Council support the demolition of 251 King Street East and the proposed reconstruction of the north and west exterior façades.

In a report under date of November 3, 2009, City Planning staff recommended a Development Strategy that would form the basis for settlement of the matter. The Development Strategy included, among other matters, the rehabilitation and retention in

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situ of the north and west elevations. In considering this report from City Planning staff, City Council endorsed the Development Strategy but then also added requirements for a revised Heritage Impact Statement to consider the retention in situ of the entire structure, i.e., all four exterior walls, along with a heritage peer review, a reduction in the amount of parking and off site parking for the development. The Toronto Preservation Board recommendation to support the application for demolition and accurate reconstruction of the north and west façades was not supported by City Council and City Council refused the application. Rams Head appealed that refusal to this Board.

In response to the Development Strategy set out in the staff report, Rams Head submitted a further revised application to the City on February 10, 2010. This application, now before the Board, has:

a reduced height of 17 storeys;

a podium reduced from seven to three storeys in height, reflecting the height of the heritage building; and

the north and west exterior walls retained in situ and rehabilitated with appropriate salvage material from the demolition of the east and south walls.

The City does not support the revised proposal and appears in opposition to Rams Head in these proceedings.

Expert Witnesses Who Addressed the Board:

The Board heard from 15 witnesses. The following witnesses were called by Rams Head:

1. Mr. Frank Lewinberg, a Fellow of the Canadian Institute of Planners and Registered Professional Planner in Ontario;

2. Mr. Michael McClelland, an architect with a speciality in heritage architecture, heritage land use planning and urban design;

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3. Mr. Todd Ricketts, a professional engineer, specializing in civil engineering with a focus on land development; and

4. Mr. Anthony Mirvish, a structural engineer.

The following witnesses were called by the City:

1. Ms Sherry Pedersen, the co-ordinator for Heritage Preservation Services for the east district of the City;

2. Mr. Charles Hazell, an architect with a specialty in heritage architecture;

3. Mr. Peter Kuba, a structural engineer;

4. Mr. James Parakh, an architect with a specialty in urban design; and

5. Mr. Michael Hynes, a Member of the Canadian Institute of Planners and Registered Professional Planner in Ontario.

Participants Who Addressed the Board:

The Board heard from the following witnesses who are Participants in these proceedings. All of these Participants appeared in opposition to the Rams Head proposal, generally expressing concerns similar to the evidence called by the City regarding sun/shadow, privacy and overlook, and heritage preservation. On height and setbacks, however, the Participants all strongly supported the existing zoning restrictions and did not support the City position that increased height on the subject lands is appropriate. The Participants who appeared before the Board are:

1. Mr. Robert Cishecki:

Mr. Cishecki was appearing for an organization known as Better Planning for All. Although his organization was not in existence at the time of community consultations, Mr. Cishecki provided comments to the City and has participated in the community discussions.

Mr. Cishecki is strongly opposed to both the City’s development strategy that includes the demolition of all but the north and west exterior walls and to the Rams

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Head revised application that similarly demolishes all but these same two walls. Mr. Cishecki asserts that the heritage building is appropriate for full retention and feels that the retention of two exterior walls is insufficient and inappropriate. In addition, Mr. Cishecki takes the position that the existing zoning by-law requirements, particularly for setbacks and height restrictions, are appropriate for the site and fit the Official Plan designation of Regeneration Area while respecting and preserving heritage buildings.

2. Mr. Robert Sherrin:

Mr. Sherrin is a resident of Abbey Lane Lofts, the condominium immediately adjacent to the east of the subject site. As Chair of the St. Lawrence Neighbourhood Association Development Committee he attended all community consultations and has been consistent in his opposition to the proposal.

Mr. Sherrin adopted Mr. Cishecki’s view that the existing Zoning By-law requirements are appropriate and noted that his condominium was built almost entirely within the Zoning By-law requirements for setbacks and height.

Mr. Sherrin also expressed particular concern about privacy and overlook. He noted that Mr. Sisam’s building to the east of Abbey Lane Lofts is much taller than Abbey Lane Lofts and has terraces and windows that overlook Abbey Lane Lofts and intrude on the privacy of residents of that building. He is concerned that there is inadequate privacy from overlook in the design of the Rams Head building and wishes to see increased setbacks as the building rises. Mr. Sherrin also noted that the east wall of the proposed building would rise much higher than the Abbey Lane Lofts and felt the design left residents of Abbey Lane Lofts looking at a blank wall.

3. Mr. Brian Cishecki:

Mr. Cishecki is a resident of the Abbey Lane Lofts and the brother of Mr. Robert Cishecki. He adopted both the evidence of his brother and that of Mr. Sherrin.

4. Mr. Adam Meghji:

Mr. Meghji is a resident of Abbey Lane Lofts. He adopted and strongly supported the evidence of Mr. Sherrin.

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5. Ms Suzanne Kavanagh:

Ms Kavanagh is the President of the St. Lawrence Neighbourhood Association. The subject lands are within the area served by the St. Lawrence Neighbourhood Association.

Ms Kavanagh feels strongly that green roofs should be incorporated into any new buildings. She is concerned that this proposal continues a trend of new high rise condominiums that do not fit into the heritage character of the neighbourhood and, in preserving primarily facades, do not properly respect the importance of heritage buildings. In addition to the Rams Head proposal, Ms Kavanagh cited King’s Court (at the northeast corner of King and Sherbourne, opposite the subject site), Mozo (at the northwest corner of King and Sherbourne) and East (Mr. Sisam’s building to the east of Abbey Lane Lofts) as being examples of new high rise development that is out of keeping with the area.

6. Mr. Rollo Myers:

Mr. Myers reviewed some of the key heritage features of the area. He strongly endorsed the view, articulated in part by Ms Kavanagh, that the area needs to be considered block by block and as a whole for heritage, and not on a site by site basis. He echoed the evidence of Mr. Robert Cishecki and Mr. Sherrin in supporting the existing Zoning By-law requirements for height and setbacks. He specifically cited the Abbey Lane Lofts as a good example of new construction fitting into the heritage character of the neighbourhood.

Mr. Myers also criticized the East condominium as adding little to the neighbourhood. He disagreed with Ms Kavanagh regarding King’s Court and Mozo. In the King’s Court case, Mr. Myers acknowledged that the corner building retained only two exterior walls but noted that the height was justified by the preservation of a second full heritage building to the north. For Mozo, Mr. Myers felt the height was justified by heritage preservation and the provision of a park.

Finally, Mr. Myers asserted that all existing buildings should be retained and reused, whether they have been designated or otherwise listed as heritage resources or

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not. In Mr. Myers view, all existing buildings are part of the fabric of this neighbourhood and support its heritage characteristics.

Several Participants identified at the prehearing did not follow through by filing Participant Statements and did not appear in these proceedings. Ms Debra Corey did file a Participant Statement but was unable to attend the hearing.

Two Walls or Four Walls:

The question of whether only the northern and western façades or all four façades should be retained revolves around the City’s policies regarding heritage conservation.

Retaining the two principal façades in situ – the northern face on King Street and the western face on Sherbourne Street – is no longer an issue between the Parties.

Although the original proposal was to demolish all four walls and then accurately reconstruct the northern and western walls with appropriate materials salvaged from the eastern and southern walls, the proposal has changed. While the Toronto Preservation Board recommended support of the proposed demolition and reconstruction of the northern and western walls, City staff called for the retention in situ of these two façades. The City staff position in favour of the retention in situ of these two walls is found in its October reports to the Toronto Preservation Board and in its November 3, 2009, report to Council. The November report repeated the desirability of retaining the northern and western walls in situ as part of the Development Strategy to settle this matter. The staff report did not recommend that all four walls be retained in situ and Council had no professional staff report before it that made such a recommendation.

Council endorsed the staff report then added requirements for a further heritage impact statement and peer review to see if all four walls could be retained. The Council action then indicated that retention in situ of only the northern and western walls would be considered following this further study and peer review. Rams Head had already filed a Heritage Impact Statement with its application materials. The City retained Mr. Hazell to do the peer review of the heritage-related materials that had been filed. Mr. Hazell was directed by Ms Pedersen, the City’s in-house heritage expert, with regard to the work he was to undertake as part of the peer review.

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While Mr. Hazell used different descriptors of the condition of the northern and western walls, in cross-examination it became clear that both he and Mr. McClelland, a heritage architect called by Rams Head, were in very close agreement on the condition of these walls, the key features, and the opportunity to retain them. By the time witness statements were to be filed, at the end of March, Rams Head had already re-examined the building and submitted its revised proposal in February, 2010, to maintain the northern and western walls in situ.

In her witness statement, filed at the end of March, 2010, Ms Pedersen repeats the importance of retaining the northern and western walls in situ, while questioning whether more of the building could be retained.

In her evidence at the hearing of the merits, Ms Pedersen was clear that all four walls should be retained in situ. In support of this position, she cited the Reasons for Designation in By-law 1086-2009. The statement of cultural heritage value includes the following:

“…Historically the property has been associated with inn keeping since the mid 1800s, and the present building is purportedly the oldest surviving hotel in the original Town of York that is recognized on the City’s heritage inventory. In the 1870s, William Burke operated the Grand Central Hotel on-site. By the close of the 19th century, the operation was known as the National Hotel, and continued in business under this name through the post-Word War II era. In 1905, the building was extended by a rear (south) addition.

The National Hotel was updated with highly crafted elements of Edwardian Classicism, the most popular style of the era that was favoured particularly for commercial and residential buildings. The National Hotel displays key elements of the style in the extended and decorated cornice marking the façades along King Street East and Sherbourne Street, the oversized voussoirs and keystones highlighting the round-arched door and window openings, and the other Classical detailing…”

In terms of the structure itself, the Reasons for Designation clearly emphasize the northern and western façades, being the King Street and Sherbourne Street faces.

The eastern wall is largely obscured by the building that is immediately adjacent to the east and forms part of the subject lands. The southern wall has been altered over time and faces a narrow alley between it and the adjacent building to the south. Neither the eastern nor the southern wall was mentioned in the November 2009 Development

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Strategy and report to Council. Moreover, retention of the principal façades is a pattern the City already established directly opposite the subject lands at the northeast corner of King Street and Sherbourne Street.

Ms Pedersen also took the Board to the Parks Canada Standards and Guidelines for the Conservation of Historic Places in Canada, and advised the Board that this document has been adopted by the City to guide its decisions regarding heritage properties. In setting out the principles behind the Standards and Guidelines, the document states:

“… Decisions regarding any conservation action on the heritage value of a historic place require sound, cautious judgment to balance conflicting requirements while engaging all relevant stakeholders and considering case-specific criteria. Engaging multidisciplinary experts and all relevant stakeholders is often necessary in the decision-making process…

… Planning must precede any interventions to a historic place. In other words, conservation work must be coordinated and integrated with planning and other future-oriented activities. Planning is the mechanism that links a comprehensive understanding of a historic place with interventions that respect that place’s specific heritage value. In planning, it is important to maintain a firm sense of the longer term and the larger picture, and to not place emphasis on particular character-defining elements at the expense of others. Planning should include consideration of all factors affecting the future of a historic place, including the owner’s needs, resources and external constraints…” [emphasis added by the Board]

At the hearing of the merits, the Board heard from structural engineers, one for Rams Head and one for the City, who agreed that the site is very small, that adequate underground parking required substantial excavation, that the walls required extraordinary bracing to protect them from damage during excavation, and that it was not at all clear that the equipment needed to do the excavation could physically fit in and out of the interior of the heritage building such that all four walls could be retained in situ, rather than just the northern and western walls. In light of this evidence, the City did not pursue the retention in situ of all four walls. Instead, the City position now was that the eastern and southern walls could be demolished but they would have to be re-built in their entirety.

Three principal things flow from the City position that the eastern and southern walls should be fully rebuilt. The first, and perhaps the most compelling, is that the

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Board had before it no heritage justification for this position. Ms Pedersen testified that, in her opinion, rebuilding is not heritage conservation. She went so far as to say that she did not believe she could recommend the redesignation of the rebuilt eastern and southern walls.

With no heritage evidence to support the complete rebuilding of these two walls, the Board then turned to the second matter and considered the heritage impact on the northern and western walls that are to remain in situ. The Parties agree that these two principal façades require restoration. And the Parties agree on the desirability of utilizing appropriate materials salvaged from the demolition of the eastern and southern walls. If materials salvaged from the eastern and southern walls are to used in the restoration of the northern and western walls, these materials then obviously cannot be used to implement a complete rebuilding of the eastern and southern walls. On balance, the Board finds that the proper restoration of the northern and western walls far outranks the rebuilding of the eastern and southern walls, particularly when this suggested rebuilding came to the Board with no heritage evidence to support it.

The City acknowledges that rebuilding the eastern and southern walls – both of which would be largely internal to the new development – would require a complete redesign of the entire project. The Board then turns to the third matter which is the question: should the project be completely redesigned to accommodate the rebuilding of these two walls?

The City’s heritage and urban design evidence is that the rebuilding of these two secondary walls is necessary for the heritage building to read as a complete building within the proposed new development.

Rams Head has already proposed to rebuild portions of both of these walls and integrate them into the new development. Specifically, Rams Head proposes to rebuild the eastern wall to 8m in length from the King Street face. The southern wall is to be rebuilt to a length of 3m from the Sherbourne Street face. In addition, the King Street frontage will utilize large glass entry doors that reveal the rebuilt eastern wall, and a similar technique to reveal the rebuilt southern wall.

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Coupled with the retained and restored northern and western walls, the reveals of the eastern and southern walls allow the heritage building to be read as a distinct volume and emphasize its importance at the corner of King and Sherbourne Streets.

The Board finds that the proposed reveals meet both the urban design and heritage goals of the City and that a complete rebuilding of the eastern and southern walls is both unnecessary to achieve these goals and of questionable heritage and urban design value.

The Board finds that the Rams Head proposal appropriately conserves the principal heritage features of this heritage property and conforms to the heritage requirements of the City’s heritage policies.

Building Design to Emphasize Heritage:

The heritage building is three storeys in height. The original proposal called for a podium that was seven storeys in height that would wrap around the heritage building. The City’s Development Strategy calls for a podium of four storeys in height. The Rams Head proposal that is before the Board has reduced the podium height still further to three storeys. The reduction is significant since this three storey height means that the newly constructed podium will now rise only to the height of the heritage structure.

With the northern and western walls retained and restored in situ, the three storey podium will be visible along King Street and Sherbourne Street. In each case it will be visually separated from the heritage structure by the two reveals of the rebuilt sections of the eastern and southern walls. By maintaining a height of three storeys, and with a distinct design treatment to complement the brick on the restored and rebuilt façades, the three storey podium will now draw the eye to the heritage structure and allow the restored and rebuilt façades to be read as full volume. The Board finds that the Rams Head proposal for a three storey podium better complements and emphasizes the heritage structure than the four storey podium proposed by the City.

The City’s Development Strategy suggests stepping the high rise building back at the fifth floor 5m on King Street and 3m on Sherbourne Street. The Rams Head proposal calls for stepping the high rise back on the fourth floor, better emphasizing the three storey heritage structure, but has a different size of stepback. Along Sherbourne

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Street, Rams Head proposes a step back of 1.78m. Along the western part of the King Street façade, the stepback would be 2.58m. As the building approaches Abbey Lane Lofts to the east, the stepback increases to 5.5m. This brings the eastern point of the building into line with the stepback of Abbey Lane Lofts. The Board finds that the Rams Head proposed stepbacks meet the triple object of emphasizing the heritage building, assisting in defining the street edge, and fitting compatibly with the existing stepback of Abbey Lane Lofts adjacent to the east.

The Rams Head proposal calls for balconies on King Street and on Sherbourne Street. The City wants no balconies on King Street. In support of this position, the City cites two matters:

1. an urban design preference for a building face that is not interrupted with balconies, and

2. a preference for the stepback to read as large as possible and balconies would intrude forward visually onto that stepback toward King Street.

The Board is not persuaded by either of these reasons.

The Zoning By-law permits balconies to intrude on a heritage stepback by 1.5m. The new comprehensive Zoning By-law permits balconies to intrude up to 2.5m. The City position that balconies clutter the northern face of the high rise structure and reduce the emphasis on the heritage building flies in the face of existing and proposed Zoning By-law permissions for balconies.

The Board has also considered the desirability of having balconies as private outdoor amenity space, especially in an intensely urban location with no reasonable prospect of common outdoor amenity space for the prospective tenants of the building. The Board finds that the Rams Head proposal for balconies on both the King Street and Sherbourne Street sides better balances urban design, heritage emphasis, and appropriate provision for private outdoor amenity space than the City proposal to eliminate balconies on King Street.

On balance, the Board finds that the Rams Head proposal conforms to the Official Plan requirements for the provision of amenity space for residents.

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Sun, Shadow, Sky View and Height:

Sun and shadow issues are directly related to the question of height. All Participants opposed the height proposed by Rams Head as well as that proposed by the City.

Rams Head proposes to integrate the mechanical penthouse into the building rather than have it perched on top. As such, it is included in the height proposed by Rams Head. The City assumes the mechanical penthouse is additional and has not included it in its height recommendation. When these different design driven assumptions are taken into account, the Parties agree that the effective difference between the City and Rams Head is 3 metres, or about one floor.

The sun and shadow study, filed as Exhibit 9 in these proceedings, demonstrates that the difference of about 3 metres in height produces a tiny difference in the amount of additional shadow on the north side of King Street. And, because the floor plate is small, the shadow moves quickly.

The City supports its proposed further reduction by noting that it will result in no shadow at all on the north side of King Street on June 21st, where the Rams Head proposal results in minor, brief shadowing on the north side of King Street on that date.

Rams Head opposes this further reduction and relies on section 3.1.2.4 of the Official Plan which states:

“…New development will be massed to define the edges of street, parks and open spaces at good proportion. Taller building will be located to ensure adequate access to sky view for the proposed and future use of these areas…

The requirement in the Official Plan is for “adequate access” to sky view. There is no reference to the opposite sidewalk and no restriction on the amount of sunlight and shadow during daylight hours at this location. The Board finds that a minor shadow increment, moving quickly, meets the Official Plan requirement for adequate access to sky view and the Rams Head proposal conforms to the Official Plan.

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Privacy and Overlook:

While the Participants do not agree with the height proposed by the City, they agree with the City proposal to have a further setback from the south face of the building, at the southeast corner, for floors five to fifteen. As noted above, the Participants who are resident in Abbey Lane Lofts already feel their privacy has been intruded upon by the height and configuration of Mr. Sisam’s condominium to the east of the Lofts. They seek a design that provides increased light from the west while reducing overlook and increasing privacy.

The proposals by the City and Rams Head both call for a setback or cutout at the southeast corner of the building that is 8.35 metres wide along the south face, or about the width of two units. Neither the City nor Rams Head proposes a general setback at this height along the entire width of the south face of the building.

At issue is the depth of the southeast corner setback from that south face. The Rams Head proposal calls for a setback of 4.5 metres; the City proposes a setback of 7 metres. The setback of 4.5 metres meets the setback to the third floor terrace of the south face of the Abbey Lane Lofts. The 7 metre setback would meet the line of the 5th floor of the Lofts.

The Official Plan requirement at section 3.1.2.3 is that new development will be

“…massed to fit harmoniously into its existing and/or planned context, and will limit its impacts on neighbouring streets…and properties by …

c) providing for adequate light and privacy…”

Rams Head asserts that the City has traditionally interpreted “adequate light” as “daylight” and not “direct sunlight”. City witnesses did not dispute this assertion.

The 4.5 metre setback allows for sunlight for part of the day and daylight for part of the day. As such, the Board finds that it meets the Official Plan test of adequate light.

Unlike the condominium to the east of the Lofts, the Rams Head proposal has no balconies facing, and therefore directly overlooking, the Lofts. Some detailing has been proposed for the eastern façade of the building, but it generally respects the privacy of the Lofts.

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Some of the Participants expressed the concern that the proposed design resulted in a blank wall, to which they objected. The Board has some difficulty reconciling this concern with the very strongly expressed concern regarding the need for privacy and keeping overlook of the Lofts to a minimum.

Residents in an intensely urban setting should expect some intrusion and overlook into private outdoor amenity space from adjacent neighbours. The Rams Head proposal holds the opportunity for such intrusion to a minimum while providing appropriate private outdoor amenity space for the new residents of this proposed development. The Board is persuaded that introducing more life into the eastern façade of the proposed building would likely result in a level of privacy intrusion and overlook from additional windows or balconies that is inappropriate and would not support the goal of reasonable compatibility between adjacent residential structures.

Outdoor Amenity Space:

The proposal before the Board includes private outdoor amenity space, principally in the form of balconies. The proposal does not include common outdoor amenity space. The Zoning By-law requirement is for 2m2 per unit of common indoor and outdoor amenity space. The Rams Head proposal provides common indoor amenity space equal to a total of about 1.57m2 per unit. No common outdoor amenity space is proposed.

The site is relatively small. Realistic opportunities for locating common outdoor amenity space at grade are not available. The Board explored the possibility of some redesign of the proposed building to incorporate common rooftop outdoor amenity space. The present design calls for a green roof in response to City policies encouraging new construction to incorporate green roofs. The Board is satisfied, and the Parties agree, that a redesign for common rooftop amenity space would mean that the building could not also accommodate a green roof, and a choice between the two must be made.

Rams Head justifies the lack of outdoor amenity space by pointing to existing parks in the broader neighbourhood and to the relatively ready access to downtown cultural and recreational assets, given the physical location of the building a short distance to the east of the downtown area. The Official Plan encourages outdoor

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amenity space. It speaks of private balconies and terraces, roof top gardens, and so on. The key is that there is access to some sort of outdoor amenity space. The Official Plan accepts private outdoor amenity space and does not require common outdoor amenity space. The vast majority of the units in the proposed building have private outdoor amenity space in the form of balconies or terraces. Only the units within the three storey podium and heritage building have no balconies or terraces.

On balance, the Board finds that a green roof is more desirable and better meets the public interest than converting this space to common outdoor amenity space. The Board finds that the proposed amenity space conforms to the Official Plan.

Servicing and Water Fire Flow:

There are two issues here, and they are:

1. Is there a fire hydrant (existing or to be installed) no more than 45 metres from a fire department Siamese connection, as called for by the Fire Department?

2. Is an updated Servicing Study required to identify what improvements to the existing infrastructure are required to accommodate the proposed development?

The City called no evidence on these two issues.

The Board heard from Mr. Todd Ricketts, a professional engineer, specializing in civil engineering with a focus on land development.

On the first issue regarding the fire hydrant, the underlying question is whether there is adequate water flow for firefighting purposes in the event of a fire in the proposed building. Initial flow tests have already been done and the results indicated that no improvement is needed. Rams Head has agreed to do a second test to determine if the results of the first test are confirmed.

If improvement in the water fire flow is needed, Rams Head proposes the installation of a booster pump in the building, with no need for an upgrade to municipal infrastructure. Mr. Ricketts testified that the use of a booster pump on premises is the common solution where additional fire flow is needed. The Board heard no contrary evidence.

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On the second issue of servicing, Mr. Rickett’s unchallenged evidence is that this development proposal has no impact on existing municipal infrastructure and no improvements to the existing infrastructure are required to accommodate the proposed development. The Board heard no contrary evidence.

Consistency with the Provincial Policy Statement:

The Provincial Policy Statement [PPS] is clear that it is intended to be read in its entirety and relevant policies are to be applied in each situation. There are several sections of the PPS that are relevant to consideration of the matters before the Board.

In terms of development, the PPS focuses growth within settlement areas, with cost effective development standards that minimize land consumption and servicing costs. The PPS stresses the need to utilize infrastructure efficiently by designating areas for intensification and growth within built-up areas and ensuring an appropriate mix of land uses. While encouraging intensification, the PPS also calls for an appropriate range and mix of housing to recognize a variety of housing needs. The proposal before the Board is clearly in a built-up settlement area. Designated as a Regeneration Area, discussed in greater detail below, it has been identified by the City in the City’s Official Plan as an area for intensification, investment and growth. With this designation, the City effectively invites proposals for intensification and redevelopment.

In terms of cultural heritage, the PPS calls for the conservation of significant cultural heritage resources, meaning the

“…identification, protection, use and/or management of cultural heritage…resources in such a way that their heritage values, attributes and integrity are retained…”

When the PPS directs that it be read as a whole and that all relevant policies be considered and applied, it does not assume that there is no need for balance or for a careful examination of the ways in which, and the extent to which, the core goals of the relevant policies may be implemented in the context of a particular proposal before the Board. To the contrary, the appropriate application of the PPS requires, for example, that a proposal for intensification on lands that include a heritage property must look at the interaction between the relevant policies rather than see them as opposing fortresses in a zero sum game where if one wins the other must lose.

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The proposal before the Board retains in situ and fully restores the two primary heritage façades. Reduction of the podium to three storeys to meet the height of the heritage structure, rebuilding part of the secondary exterior walls, and providing significant reveals and stepbacks above the three storey height all allow the heritage structure to be read as full volume and retain its prominence at the corner of King Street and Sherbourne Street in the Old Town of York. In doing so, the Board finds that the Rams Head proposal has retained the heritage value, attributes and integrity of the heritage property while also meeting the policy goals of intensification, investment, efficient use of infrastructure, transit supportive development, and the provision of a range and mix of housing.

The Board finds that the Rams Head proposal is consistent with the Provincial Policy Statement.

Conformity with the Growth Plan for the Greater Golden Horseshoe:

The Growth Plan for the Greater Golden Horseshoe echoes the PPS in calling for intensification and growth to be directed to settlement areas, emphasizing transit supportive forms that reduce auto dependency and generate increased opportunities for residents to live and work locally. Located at the corner of two transit lines – the King Street streetcar and the Sherbourne Street bus route – and a relatively short walk to the downtown, the Board finds that the proposal before the Board conforms to the Growth Plan for the Greater Golden Horseshoe.

Conformity with the City of Toronto Official Plan:

The subject lands are designated as a Regeneration Area. This designation is intended to:

“…open up unique areas of the City to a wide array of uses to help attract investment, re-use buildings, encourage new construction and bring life to the streets. These areas are key to the Plan’s growth strategy, reintegrating areas of the City that are no longer in productive urban use due to shifts in the local or global economies…”

This planned context for the area has been implemented by the City with the intensification and development of several high rises that sit along side older and lower buildings. Some of the newer development has included conservation of heritage

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features where the subject lands contained a heritage property. Other developments simply brought modern design to redefine the streetscape.

Each Regeneration Area is required to have a secondary plan. In this case, it is the King Parliament Secondary Plan. The King Parliament Secondary Plan repeats the emphasis of Regeneration Areas on attracting new investment and promoting the introduction of a variety of uses, including residential. The Secondary Plan includes the design requirements for new development to “…respect the historical and urban design significance of the area…”

The Board has already reviewed the many ways in which the Rams Head proposal respects the historical and urban design significance of the site and surrounding area. The three storey podium and stepbacks enhance the heritage structure and provide a sympathetic transition to adjacent properties. The residential tower has a relatively small floor plate, providing sky view and implementing City preferences for tall buildings. Retail uses are provided at grade, helping to define the street edge and maintain a lively pedestrian realm.

The issue before the Board is whether the proposal conforms to the Official Plan, not whether some other design might also conform to the Official Plan. In this regard, the Board adopts the approach in Toronto (City) Official Plan Student Residence Amendment (Re), [2002] O.M.B.D. No. 184, at paragraph 16:

“…The test for the Board in this matter is whether what the proponent seeks represents good planning and conforms to the intent of the existing Official Plan. The matter will succeed or fail on that test and not on whether some other built form would do…”

The Board finds that the Rams Head proposal conforms to the King Parliament Secondary Plan and to the City of Toronto Official Plan.

Regard for Matters of Provincial Interest:

Section 2 of the Planning Act sets out matters of Provincial interest. Included here are the conservation of historical features, appropriate location of growth and development, adequate provision of a full range of housing, and designing development to support public transit and be oriented to pedestrians. For the reasons cited in the

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preceding sections, the Board finds that the Rams Head proposal has appropriately considered and implemented matters of Provincial interest.

Regard for the Council Decision and Material in Support:

Section 2.1 of the Planning Act requires this Board to have regard for the decision by municipal council and to the supporting information and material council considered in making its decision. The Board is also mindful of the November 13, 2009, decision of the Divisional Court in City of Ottawa v. Minto Communities Inc. in which the Court considered whether this section of the Act required deference by the Board to a decision of the municipal council. The Court found that the Board has an obligation to consider carefully the decision of the municipal council but is not obligated to afford great deference to council’s decision:

“…if this court were considering a review of the decision by the municipality, without any intervening process before the OMB, great deference would have to be afforded to Council’s decision. However, the main reason for such deference is the recognition that the court does not inherently have any expertise in land use planning decisions. On the other hand, the OMB certainly does. The OMB can therefore oversee or review planning decisions by municipal councils from the vantage point of its expertise. There is another important difference between the court and the OMB. Unlike the court, the Board may determine the appeal based on fresh and expanded evidence, rather than merely reviewing the record of what was before Council in making its decision. The OMB process affords the parties a full hearing that includes an opportunity to present evidence, including expert evidence that may not have been before the municipal council in making its decision.

Furthermore, it is important to keep in mind that the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate. The decision to be made by the Board transcends the interests of the immediate parties because it is charged with responsibility to determine whether a land planning proposal is in the public interest. At first instance, that public interest is determined by Municipal Council, but on appeal the Board has the obligation to exercise its independent judgment on the planning merits of the application and to assess the proposal and the positions of the parties from the perspective of applicable legislation, regulations, provincial plans, the provincial policy statement, official plans and bylaws and even the potential impact on neighbouring municipalities. In doing so, it brings its own expertise to bear…”

In this case, the Board has regard for the fact that while Council sought the retention of all four walls of the heritage property, it only had before it the Planning staff

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report that set out the Development Strategy and recommended the retention in situ of the northern and western façades. While seeking retention of all four walls, Council first endorsed the Development Strategy that called for the retention in situ of only two walls.

The Rams Head proposal reflects the Development Strategy, endorsed by Council, and then improves upon it by further enhancing the heritage structure and providing a more sympathetic transition to adjacent properties. The appropriateness of all four walls being retained in situ was not supported by staff reports before Council but was canvassed thoroughly in the evidence called by the Parties in these proceedings. Following a testing of this evidence, the suggestion that all four walls be retained in situ was not pursued by the City.

Having regard to the decision of Council, the supporting materials before Council, the evidence called and tested at this hearing, the Board finds that the Rams Head proposal is reasonable, appropriate, implements matters of Provincial interest, is consistent with the Provincial Policy Statement, conforms to the Growth Plan for the Greater Golden Horseshoe and the City of Toronto Official Plan, and is in the public interest.

The appeal is allowed in part.

City of Toronto By-law 438-86 is amended in accordance with the revised proposed zoning by-law amendment filed as Exhibit 59 in these proceedings. At the request of the Parties, and on consent, the Board withholds its Order regarding this amendment until the Parties file with the Board an executed s.37 agreement and advise the Board that the agreement has been registered on title.

The Board determines the details of the site plan, as filed as Exhibit 17 in these proceedings, subject to the conditions filed as Exhibit 60 in these proceedings. At the request of the Parties, and on consent, the Board’s Order regarding the site plan matter is withheld until the Board is advised that the pre-approval conditions have been satisfied and a site plan agreement is signed and registered on title.

On the appeal under the Ontario Heritage Act, the Board directs the City to consent to the demolition of the heritage property at 251 King Street East and repeal the designating by-law, subject to the conditions that the northern and western walls are to

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be retained in situ and restored and that a common law easement agreement is entered into between the proponent and the City and registered on title prior the demolition or repeal of the designating by-law.

If difficulties arise, the Board may be spoken to.

So Orders the Board.

“Susan de Avellar Schiller” SUSAN de AVELLAR SCHILLER MEMBER