Kingston KROCK Centre - Kingston Regional Sports and Entertainment Centre (KRSEC) -- Large Venue Entertainment Centre (LVEC) Skydome OMB Decision, April 2004

    Rogers Blue Jay Baseball Partnership has appealed to the
    Ontario Municipal Board under subsection 17(24) of the
    Planning Act, R.S.O. 1990, c. P.13, as amended, from a
    decision of the City of Toronto to approve Proposed
    Amendment No. 229 to the Official Plan for the City of
    Toronto to redesignate lands at 28 Rees Street in the City
    of Toronto (Toronto) to allow for residential uses O.M.B.
    File No. O020090 and

    Rogers Blue Jay Baseball Partnership has appealed to the
    Ontario Municipal Board under subsection 34(19) of the
    Planning Act, R.S.O. 1990, c. P.13, as amended, against
    Zoning By-law No. 459-2002 of the City of Toronto (Toronto)
    O.M.B. File No. R020137

                    [2004] O.M.B.D. No. 409
              File Nos. PL020556, O020090, R020137


                    Ontario Municipal Board
                  M. Hubbard and G.C.P. Bishop
                        April 27, 2004.
                          (52 paras.)

COUNSEL:
     S. Bradley, for City of Toronto Urban Development
          Services.
     J. Davies and J. Alati, for Rogers Blue Jays Baseball
          Partnership.

DECISION DELIVERED BY M. HUBBARD AND G.C.P. BISHOP AND ORDER
OF THE BOARD:--

[para1]     The City proposes to build a seniors affordable
housing project within Block 18AB at 28 Rees Street located in
the Railway Lands Central Part II Plan. This site is located
on the south side of Bremner Boulevard directly south of
SkyDome, bounded on the east by Rees Street; to the south by
the John Street pumping station and to the west, on Block 18C,
by the bus parking lot.


[para2]     The Board has before it two planning instruments:
Official Plan Amendment 229 and accompanying Zoning By-law
Amendment 459-2002, that have the effect of inserting the
residential designation into the Railway Lands Secondary Plan
and the Railway Lands Central Zoning By-law 1994-0806 on the
subject property.

[para3]     The subject property is one of many blocks of land
contained within the lands comprising the Railway Lands Part
II Plan. The Railway Lands, being such a large tract of land,
are broken into precincts and blocks to distinguish the
various tracts of land. The accompanying by-laws were formed
in three parts, being the west, east and central area.

[para4]     The subject property is located in the central
area, which also includes other properties such as the CN
Tower, SkyDome and the Renaissance Hotel. A portion of this
area is known as precinct A, in accordance with Map E of the
1986 Part II Plan. This precinct encompasses Block 19A, being
the location of the SkyDome; Blocks 18C and 18AB (the subject
property) directly south and across Bremner Boulevard from the

Blocks 20A and 20B), southwest of the SkyDome; Block 19
directly west of the SkyDome and the CN Tower located directly
east of the SkyDome.

[para5]     A review of the Part II Plan was initiated in 1990
and ultimately led to the passing of by-laws to adopt a new
Part II Plan and Zoning By-law in 1991, then known as Railway
Lands West, that included both central and west lands. These
amendments were appealed to the Ontario Municipal Board
("OMB"), which led to the issuance of the Railway Lands
Central Part II Official Plan and the Railway Lands Central
Zoning By-law 1994-0806 in October 1994.

[para6]     The 1991 Zoning By-law that was appealed permitted
no residential density on Blocks 18AB, 18C, 19, 20 and
designated Block 21 for commercial/institutional uses.

[para7]     The resulting Board decision in 1994 permitted no
residential density on Blocks 18AB, 18C, 19 and two blocks

decision did allow a degree of residential development on
Blocks 20A and 20B, being the east half of Block 20/23.


[para8]     A Stadium Precinct Agreement and a Stadium
Precinct Environmental Agreement have been entered into and
registered in 1986. Various issues that must be dealt with in
conjunction with the submission of a site plan application are
items such as noise, vibration, stadium lighting, air quality,
wind and rail corridor snow, sun and shade, soils, groundwater
and stormwater management. Although these may be required at
site plan stage for the development of an as-of-right use, the
Board finds that the request to add the residential use should
bear consideration in advance of any amendment to insert this
new use in the Official Plan or current By-law.

     REQUEST FOR PROPOSALS

[para9]     The City issued, on July 24th, 2002, a Request for
Proposals (RFP) document for the provision of affordable
seniors housing at 28 Rees Street addressed to for-profit and
non-profit corporations interested in developing and operating
affordable rental seniors housing.

[para10]     What must be pointed out is that there have been
no responses to the RFP.


[para11]     Furthermore, there is no development proposal
before this panel of the Board. As it will be apparent in the
decision, the lack of sufficient detail makes it impossible
for the Board to assess how the proposal would function and
interact with the existing uses and users.

     SITE VISIT

[para12]     On consent of the parties, Ms Hubbard attended
the site on October 18, 2002 and Mr. Bishop attended the site
on April 5, 2004. On both occasions, the Board was in
attendance during an event at the SkyDome. Mr. Bishop also
attended the site on April 1, 2004, on a non-event day, with
permission of the parties.

     TRANSPORTATION AND SECURITY

[para13]     At the outset, the Board finds that there was no
argument between the parties as to any impact this site would
potentially generate on the overall capacity to the local road
system. In fact, it is Ms Kozorys-Smith's position that the
conversion to residential will actually alleviate some of the

already available as of right on the subject property.

[para14]     The Board finds that the question as to impact
cannot be understood in a merely conventional sense. What is
singular about the present situation requires an understanding
of how the proposed building may be impacted by the colossal
traffic volume generated by huge events, whether the
co-existence of the proposal with the existing situation is
possible, and whether it would make sense at all.

[para15]     The City compared the combined access or
commingling of the traffic of the subject site with examples
such as the arrangement at 65 Navy Wharf, located in Block 19,
directly to the west of the SkyDome. In this instance, a
single curb cut allows for the flow of traffic in three ways.
The traffic and parking for the building at 65 Navy Wharf
enters and exits from the same location, directly to the north
of the two ramps leading to and from the underground parking,
which is used as a public parking lot.

[para16]     The access ramp located on the subject property
servicing the SkyDome, CN Tower and the Renaissance Hotel is,
to say the least, massive, in order to accommodate the need to

move large transport trailers and buses and sometimes cranes
and dump trucks, before and after events at the SkyDome.
Testimony at the hearing indicated that movements like this
are not limited to specific times during the day, but could
include truck movements throughout the night, in the case of a
large concert event.

[para17]     Counsel for the City tendered the position that

residential use and an as-of-right use such as an office
building (the residential use would only yield 25% of the
office use occupancy load) is simply a better scenario. This
scenario, combined with the way the parking is allowed to
develop depending on the type of use, would also add to the
volume of traffic and consequently, create a greater security
concern. Under the residential use, the parking associated to
the use must be accessory and contained within the principal
building. In the case of the office use, the related parking
could be provided as far as 300 metres away from the principal
building. Under this scenario, the parking under a proposed
office building on the subject property could be managed as
public parking and used for general parking on event days,
thus increasing the amount of traffic along the ramp and

through the security check.

[para18]     The Board found this an interesting proposition
that was never tested by any of the expert witnesses at this
hearing. The City's experts were limited to the impacts that
the proposed use may bring to this site with no comparison to
the impacts that an office use, or any other as-of-right use,
may create. This simplistic assessment does not take into
account any of the many varied factors that would affect the
parking patterns that emerge from the different uses. Could
the Board then assume that the office use would create a
parking pattern that would see the parking lot empty on almost
all event days, since the events generally occur in the
evenings or weekends, when the office building would be empty?
One could then take the next leap and argue that security may
actually improve, as all vehicles would be arriving for the
same common purpose, to park in either the parking lot under
the SkyDome or the parking lot in the proposed building to
enjoy the event, thus eliminating a further commingling of
uses. This would also eliminate any security concern if the
proposed building needed evacuation and it would always be
empty during event times. There is too much speculation on
anyone's part without the necessary examination.


[para19]     The Board was also asked to consider the whole
evolution of the planning for the Railway Lands in the context
that planning evolves and is not stagnant. This Board assumes
this was for the purpose of demonstrating the evolution of the
change or addition of the residential uses inserted into the
Railway Lands. The general evolution of the residential use
has seen a massive conversion of lands, both east and west of
the SkyDome, to residential uses. The general trend west of
the SkyDome has seen this residential conversion slowly
advance eastward, toward the SkyDome. The Block 20 conversion,
southwest of the SkyDome, was in 1994; Block 21, northwest of
the SkyDome and north of the railway corridor, in 1997; and
Block 19, directly west of the SkyDome, in 2000. The Board
does note that these were not all created by conversion but
also created by exception.

[para20]     The Board finds that all of these sites, without
even considering the vast difference in site attributes, were
developed prior to that fateful day in New York on September
11, 2001.

[para21]     The security evidence tendered by the City

primarily dealt with the many deficiencies in the security
both throughout and around the SkyDome and that there are many
other options to cause harm to this structure without going
down the access ramp, leading to the underground parking
ringed under the stadium seating area.

[para22]     Counsel for the City premised that certainly any
clever terrorist would not choose access by the ramp, where
the physical checking of the vehicles entering the SkyDome
takes place.

[para23]     The Board concurs that the developments on the
other blocks to the west of the SkyDome may have been or will

The Board cannot accept that attributes or constraints of the
various sites are anywhere close to the same as the subject
site.

[para24]     Just as the City has laid the foundation that the
planning of this area has not been stagnant, the Board finds
it difficult to accept that the events of September 11, 2001
should not be at least cause for one to pause and carefully
consider the ramifications.


[para25]     The Board finds the security evidence is wanting,
primarily because insufficient study and detail was supplied
to the Board. This was through no fault of the very credible
experts at the hearing but was caused by the lack of a
reasonable development plan as introduced through the evidence
of Mr. Vogt. There is no question that a full application for
site plan need not be submitted in advance of the applications
for Official Plan Amendment and Zoning change, but the
development of the plans would have assisted everyone and the
Board in a full and proper evaluation of the site. This
ill-conceived approach has not been helpful to the Board.

[para26]     With respect to the transportation issue, the
Board finds and accepts the evidence of Mr. R. McBride,
Traffic Consultant for the appellants. The Board finds that
the conflicting right of access, combined with the significant
vehicular congestion before and after events is unacceptable
for a residential use.

     PLANNING

[para27]     Mr. A. Cranston, Senior City Planner, described a

site located within Block 18AB and reviewed the current
designations and the proposed amendments.

[para28]     It was his testimony that the existing Official
Plan designates the site as SkyDome Subcentre Special Mixed
Use Area B by the Railway Lands Central Part II Plan. The plan
states that the lands around SkyDome are appropriate for a
significant concentration of commercial, institutional,
cultural, recreational, open space and retail uses but does
not include residential uses (Exhibit 3C, p. 610, policy
10:2:2). The existing zoning contained in the Railway Lands
Central Zoning By-law No 1994-0806, as amended, zones the site
Mixed Commercial Residential ("CR") which permits:

     Non-residential gross
     floor area (GFA)         maximum 21,127 square metres

     Residential GFA          maximum 0 square metres

     Total GFA                maximum 21,127 square metres

     Height limit             35 metres


     (Exhibit 3A, Tab 9)

[para29]     In his testimony, Mr. Cranston stated that the
proposed Official Plan Amendment No. 229 would amend the
designation to include residential uses and Zoning By-law No.
459-2002 would amend the Railway Lands Central Zoning By-law
to permit 20,000 square metres of residential GFA on Block
18AB, thereby Zoning it CR - Mixed Commercial Residential.

[para30]     The site, according to the City Planner,
currently permits a range of non-residential uses within the
21,127 square metres of non-residential GFA within Blocks
18AB. In addition to the office uses, the subject site may
include schools, hospitals, a community centre, an arena, or
place of amusement, to name just a few.

[para31]     In his planning analysis, the City Planner
described in detail the high-density development on Blocks
20/23 just west of Block 18C, now under construction, which
consists of four towers containing 1632 residential units. He
referred also to Block 19 located west of the SkyDome that
consists of a 34 storey tower, containing 404 residential
units. There is also high-density residential development on

the north side of Queens Quay, south of Lakeshore Boulevard,
and further residential development on Block 21 located north
of the rail corridor on Front Street with further construction
taking place on Blocks 8 and 10 in the Railway Lands East

[para32]     Mr. Cranston reviewed the plans for proposed
parks within the Railway Lands as well as a community centre
and school facility within Block 31 in the Railway Lands West.
It was his view that, as new residential development occurs,
the at-grade related commercial facilities will emerge to
provide amenities such as clinics, hair salons, barbershops,
banks and convenience stores.

[para33]     The City Planner reviewed for the Board the
pedestrian linkages, cultural amenities, sporting events and
tourist attractions within and adjacent to the Railway Lands.

[para34]     The Board notes that there was no dispute from
the appellant with respect to the relevant Official Plan
policies and Provincial Policy Statement. Mr. Cranston
outlined policy references in support of the amendment of the
Part II Plan to rezone the site to allow for residential uses.


[para35]     Mr. P. Smith, consulting land use planner for the
appellant, reviewed the site's policy and regulatory context,
the new City Official Plan and the current and old staff
reports. He also made numerous site visits. It was his
planning opinion that the applications before the Board,
namely Official Plan Amendment 229 and By-law 459-2002 do not
represent good planning. The site is not conducive to
residential uses. In his opinion, the site should be developed
for non-residential uses that would complement SkyDome as an
urban stadium and multipurpose facility. If a residential use
should be permitted, a number of incompatible land use impacts
would result. He stated that a consistent history of planning
exists in this precinct and for this site, Block 18AB, for
non-residential uses only.

[para36]     The precinct, as Mr. Smith defines it, is bounded
to the north by Front Street West, to the west by Blue Jays
Way, to the south by the Gardiner Expressway and Lakeshore
Boulevard and to the east by Simcoe Street (Exhibit 85). It is
his view that the precinct, as described, should always be a
non-residential complex. Currently there are no existing
residential uses nor are there any planned. There are three

massive structures: SkyDome, CN Tower, and the Metro
Convention Centre, requiring tractor trailer, truck, vehicular
and pedestrian traffic as part of the servicing of these
facilities.

[para37]     The precinct, in addition to being a tourist and
event destination, supports substantial City infrastructure
including the John Street Pumping Station, Enwave Cooling
Station and major elements of the City infrastructure such as
the Lakeshore/Gardiner Expressway and CN Rail. The precinct,
as Mr. Smith describes it, is located between two emerging
residential neighbourhoods, but is not part of them. Given the
described uses, it is his opinion that there are similarities
to industrial context as opposed to a residential context.

[para38]     Mr. Smith testified that there is no compelling
planning reason put forward to justify changing land use
strategy by adding residential uses.

[para39]     To support his analysis, he refers to planning
reports with regard to impacts of the SkyDome on blocks 18AB
and 18C with respect to noise, traffic and lighting. The City
staff in planning reports No 16 dated October 7, 1991 and

October 4, 1991 state clearly that their proposal for
"non-residential uses around SkyDome were intended not only to
buffer the residential uses to the west but also create a
vibrant well-designed and public urban setting for the stadium
and its related functions." (Exhibit 3A, Tab 4 and 5).

[para40]     Mr. Smith, to put the SkyDome into perspective,
stated that the scale is immense and has a footprint of 4.4
hectares (11 acres) and height of 31 storeys on the roof of
the SkyDome.

[para41]     In his conclusions, Mr. Smith testified that this
precinct, as he describes it, is non-residential, the

essentially fully developed today. The John Street Pumping
Station, Enwave Cooling Station, and the Roundhouse facility
are uses established for the immediate and the long term.
Bremner Boulevard is a heavily used arterial road.

[para42]     With respect to the site itself, that is, the
north part of Block 18AB, in Mr. Smith's opinion, the southern
portion is occupied by a large pumping station that extends
across the full width of the site and is currently being

expanded. The northern part of the block on which the proposed
residential use is planned is occupied by a 10 to 12 metre
wide ramp for access to the SkyDome service tunnel and the
underground parking servicing the SkyDome, the Renaissance
Hotel and CN Tower. Blocks 18AB and 18C (the bus parking
facility) have the potential to create negative impacts for
residential uses on the subject site. The site constraints
include an area of 3500 square metres, leaving little room to
buffer the residential uses. The site is shallow, with a
north-south dimension of 30 metres. It was Mr. Smith's opinion
that, given the established land use structure and the urban
form, a residential use is not desirable.

[para43]     In conclusion, Mr. Smith testified that a
residential use is neither desirable nor appropriate on the
subject site. It was his testimony that Official Plan
Amendment 229 and Zoning By-law 459-2002 should be refused by
the Board.

[para44]     The Board accepts fully the planning analysis of
Peter Smith.

[para45]     The Board finds firstly that in the absence of

detailed or conceptual site plans and no technical reports to
support the City's application for Official Plan Amendment and
rezoning for Blocks 18AB, it is not possible to assess the
impacts of the proposed residential use on SkyDome, the CN
Tower or the Renaissance Hotel in the situation where such
detailed analysis is of huge importance.

[para46]     Secondly, the Board finds that the Railway Lands
West, the precinct west of Spadina, includes housing policies
(Block 31 for social housing, and Blocks 32 and 36 for
affordable housing) that will adequately satisfy the
objectives for affordable housing in a planned neighbourhood
with the full range of community services and facilities.
Furthermore, as pointed out by Mr. Smith, one must not readily
dismiss the contribution that may be made by the private
sector. In other words, it would be intellectually dishonest
to say that to deny the proposal would deny the fulfillment of
an affordable housing opportunity.

[para47]     Thirdly, the constraints to Blocks 18AB and 18C
are immense, as part of the proposed site is presently devoted
to servicing a ramp of 10 to 12 metres in width. This is the
ramp for access to the SkyDome service, access to SkyDome, the

Renaissance Hotel and the CN Tower. It is the only lifeline to
these facilities, for which security and accessibility is of
paramount and tremendous importance. To say that the existing
constraints are abundantly clear is to underline the obvious,
as the panel for the hearing can attest, upon an on-site
inspection. The commingling of the traffic for residential use
and the traffic of the large-scale institutional uses for
sports events, commercial-retail uses and convention traffic
would constitute a situation that is both unprecedented and
difficult. No evidence has been presented to the Board that
the proposal will, in the end, work.

[para48]     The Board finds that the City staff reports found
in Exhibit 3A, Tab 4 and 5, which propose non-residential uses
for the area around the SkyDome in an effort to create a
vibrant well-designed public setting for the stadium and
related functions still stands today. The City staff reports
and supporting rationale have not changed.

     Order

[para49]     The Board allows the appeal of Rogers Blue Jays