OMB Decision - Funds for Planning Consultant

Monarch Construction Limited

5039 Finch Avenue East and 2627 McCowan Road

Ward 18 - Scarborough Malvern

The Scarborough Community Council recommends the adoption of the following report (September 10, 1999) from the City Solicitor:

Purpose:

To report on the Ontario Municipal Board Decision respecting 5039 Finch Avenue East and 2627 McCowan Road and advise of additional funds required to pay planning consultant Jassie Khurana.

Funding Sources, Financial Implications and Impact Statement:

$6,600.00 to pay the balance of Mr. Khurana's account is in the Legal Services operating budget.

Recommendations:

It is recommended that an additional $6,600.00 be allocated from the Legal Services operating budget for the retention of an independent planning consultant for the Ontario Municipal Board hearing respecting 5039 Finch Avenue East and 2627 McCowan Road in addition to funds already approved by Council.

  Council Reference/Background/History:

On December 16 and 17, 1998, Council adopted Clause 21 embodied in Report No. 12 of the Scarborough Community Council and refused the application by Monarch Construction Limited to increase the density for their lands at the southeast corner of Finch East and McCowan. On March 2, 3 and 4, 1999, Council amended and adopted Clause 10 embodied in Report No. 2 of the Scarborough Community Council, authorizing expenditure of up to $15,000.00 for a planning consultant.

Comments and/or Discussion and/or Justification:

The OMB Decision

Monarch purchased land at the southwest and southeast corners of Finch East and McCowan in 1963. In 1973, Scarborough granted Official Plan and Zoning permission to construct high and medium density residential dwellings on these sites, but Monarch did not proceed. In 1989, the developer requested new Official Plan and Zoning provisions increasing maximum permitted densities.

After over a year of tough negotiation involving residents' associations, the former City enacted by-laws to combine the high and medium density areas on each corner, assign a maximum number of units on each side of McCowan and establish an overall height limit of 54 m (19 storeys). Monarch submitted a concept plan showing how the units would be deployed:

-on the southwest corner, 338 units in an 18 storey apartment building on the south side of Finch East (Phase I) and a 12 storey building on the west side of McCowan (Phase II); and

-on the southeast corner, 470 units in an 18 storey building on the south side of Finch East (Phase III), a 12 storey building on the east side of McCowan (Phase IV) and townhouses to the east (Phase V).

Because the general limit of 54 metres applied throughout, height was not in issue in this hearing. Rather, the Board had only to consider a proposed increase in the total number of units from 470 to 616 for Phases III, IV and V and a decrease in the units-to-indoor recreation space ratio so that the recreation centre already built with Phase III would cover the increased number of units.

The City's position was that the maximum number of units should not be increased, partly because of the hard-fought settlement in 1990, but mainly because the goals of good planning in 1999 - including a better balance of built form and numbers of units between the southwest and southeast corners of this intersection, buildings of similar size and proportion facing one another across McCowan and achieving a Phase IV that would relate much better to the houses to the southeast - showed that the original concept was superior.

Residents living in the ten storey Phase II on the west side of McCowan gave uncontradicted evidence that Monarch sales staff had told them a "mirror image" building would be built on the Phase IV. There was also uncontradicted evidence that Monarch had previously supported an increase in the height of Phase III from 18 to 19 storeys by arguing grade differences would make it appear to be the same height as the 18 storey Phase I.

Under the previous zoning, Phase IV could have 210 units. Monarch could have erected a 19 storey building with 210 units without any zoning amendment. Phase III has 19 storeys and 226 units. The request to increase Phase IV to 350 units obviously called for a building significantly wider than either Phase II or III. The City was successful in opposing an increase in the width of Phase IV and in having the height limit reduced for the Phase V townhouse site, so that Monarch cannot say it wants to build a medium or high rise building in that area, instead of townhouses.

The Board has required Monarch to develop a new site plan showing the number of units it proposes for Phase IV up to 19 storeys, but being no wider than Phase II. I have made inquiries, but do not yet have a response from Monarch as to how many units the developer now proposes for Phase IV.

Additional Funds for Planning Consultant

The original $15,000.00 estimate was the best that could be made at the time, as no prehearing conference had been held and no issues list had been drawn. Mr. Khurana was retained late in May 1999, at which time he submitted a budget and workplan for $18,000.00 in fees and $400.00 for disbursements plus GST. Having regard for the issues list that was then available and the length of time allowed by the Board for the hearing. I found this reasonable.

Mr. Khurana's account is for a fee of $21,150.00, already discounted from the time he actually invested, and disbursements of $446.17 plus GST. Significant, but necessary, extra time and effort were expended by him in reviewing and preparing evidence relating to the extensive planning history of the five phases of Monarch's development lands on both sides of McCowan and several supposedly comparable developments raised by Monarch. The City's position was that these other projects were not relevant to this case; however, evidence concerning them had to be prepared.

Conclusions:

When a settlement is achieved by residents' groups, a developer and the City that calls for varying heights and densities in different phases of a project, it may be advisable to consider enacting zoning regulations specific to each phase, rather than establishing general height limits and overall unit counts. That may reduce the likelihood of the developer later succeeding in varying from the settlement, but it will not legally prevent the re-opening of a settlement, even when some phases have been built in compliance with the agreement and even when buyers in an early phase have been told a building in a later phase will be no larger than theirs.

Contact Name:

John A. Paton

Legal Services

phone:392-7230

fax:397-4420

e-mail: jpaton@toronto.ca