February 24, 2000

To: Scarborough Community Council

From: City Solicitor

Subject: Ontario Municipal Board decision respecting 5739-5745 Finch Avenue East - Juhan Holdings

Ward 18 (Scarborough Malvern)

Purpose:

To report upon the Ontario Municipal Board decision regarding a rezoning and site plan approval sought by Juhan Holdings Inc. to permit a Coffee Time outlet at 5739-5745 Finch Avenue East.

Finance Implications and Impact Statement:

The adoption of this report would increase by $5,750.26 the fees, originally estimated to be $15,000, for the outside consultants retained in respect of this matter. Funds are available in the Legal Division's budget allocation for outside consultants for Ontario Municipal Board hearings.

Recommendations:

It is recommended that:

(1) the City Solicitor be authorised to increase the retainer of Tedesco Engineering from $7,000.00 to $14,624.51, thereby increasing by $5,750.26 the fees, originally estimated to be $15,000, for outside consultants retained in respect of the OMB appeals by Juhan Holdings Inc. to establish a Coffee Time outlet at 5739-5745 Finch Avenue East.

(2) this report be otherwise received for information.

Background:

Juhan Holdings Inc. ("Juhan") applied for an amendment to the Zoning By-law of the former City of Scarborough to permit a restaurant at 5739-5745 Finch Avenue East. Juhan intended to establish a Coffee Time outlet in this corner plaza at the insertion of Finch Avenue East and Baldoon Road. On July 29, 30 and 31, 1998, City Council, (in adopting Cl. 29 of Scarborough Community Council Report No. 7), refused the application and Juhan appealed to the Ontario Municipal Board (the "OMB"). In addition to Juhan's application for a restaurant use, planning staff had also recommended that the Zoning By-law be updated to permit a day nursery and personal services shops on the site. The City opposed only the restaurant use, not the day nursery or personal service shops. Juhan also appealed its site plan application for the proposed Coffee Time and this was also opposed by the City at the OMB.

Comments:

The OMB's decision, which issued on September 30, 1999, accepted the City's arguments and refused Juhan's request to permit a Coffee Time. At the OMB's request, I am in the process of preparing and submitting to the OMB a form of zoning by-law amendment which will permit a day nursery and personal service shops in addition to those uses already allowed. I anticipate the OMB will soon issue its Order amending the Zoning By-law in accordance with the draft by-law which I am preparing, after which these new uses, but not restaurants, will be permitted on the site.

As the City's planning staff supported Juhan's application, it was necessary for the City Solicitor to retain outside experts to provide evidence in opposition to Juhan's appeal. By my report (October 2, 1998) to Scarborough Community Council, (found in Cl. 19 of Scarborough Community Council Report No. 10 adopted by City Council on October 28, 29 and 30, 1998), I sought funds to retain such witnesses and estimated that the cost would be $15,000.00. The City retained Robert Truman and Associates to give planning evidence and Tedesco Engineering to give traffic evidence. Mr. Truman's retainer had an upset limit of $7,000.00 and his final fee was $6,125.75. Mr. Tedesco's retainer had an upset limit of $7,700.00 and he was paid that amount in full. The combined total of both accounts is therefore $13,825.75 which is $1,174.25 less than the estimated amount of $15,000.00.

The appeal, which was originally scheduled for just two days, actually ran for six days. As a result, Mr. Tedesco provided services beyond those contemplated by his original retainer. The value of these additional services is $6,924.51, almost double the original upset limit of $7,700.00. Mr. Tedesco has asked that consideration be given to extending his retainer to cover the full amount of his rendered services. While I am comfortable in retroactively increasing Mr. Tedesco's retainer to pay $1,174.25 (being the remaining balance from the original estimate of $15,000.00), I cannot extend the retainer to cover more than that without the concurrence of City Council. Paying Mr. Tedesco in full for all services rendered would require payment of $5,750.26 more than the original estimate of $15,000.00. However, given the additional time required for the extended hearing and the satisfactory result, I am recommending that Council authorise this additional payment. The funds would come out of the Legal Department account for outside consultants.

Conclusions:

It is appropriate to permit payment of $5,750.26 more than the original estimate of $15,000.00 for outside witnesses and to increase the retainer of Tedesco Engineering from $7,000.00 to $14,624.51. The decision of the OMB should also be received for information.

Contact:

Stephen M. Bradley, Solicitor

Telephone: (416) 392-7790

Fax: (416) 397-4420

E-mail: sbradley@toronto.ca

H.W.O. Doyle

City Solicitor

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