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Board turns down Mizrahi building - for now

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A long-awaited decison (kind of) in the appeal by Mizrahi seeking to overturn the City’s decision against its 12-storey building at Island Park and Richmond Road is finally out. It’s good news – sort of.

The Ontario Municipal Board (OMB) has rejected the developer’s appeal in a lengthy decision, but on the basis that Mizrahi hasn’t designed such a “landmark” building that it would qualify for extra height.

But, rather than close the door to the development, the Board has drawn a roadmap for changes that could allow it to proceed. It has outlined (non-exhaustively) nine characteristics of a “landmark”, “scenic” and “picturesque” building that, while loosey-goosey, could eventually be met to go ahead with the project.

The alternative to a major redesign to fit those criteria, says the Board, is to allow the project to go ahead as proposed, but lopping off the top three storeys. It writes:

“It is the extra storeys at the top for which an incentive is being sought, under the rubric of complementing overarching planning objectives. The Board would have expected more substantial evidence, to confirm that the extra storeys contributed to its ‘landmark’ or ‘scenic’ character, and hence qualify for the desired exceptional treatment.” It adds with respect to the City's policies on landmark architecture that the "intent of those provisions was to foresee a project with what, in the vernacular, the Board would call an element of 'wow'."

Mizrahi has therefore been invited to move forward with a re-design, and the City has been invited to specify how a new design would “objectively” meet the nine critera.

So, for now, the case is adjourned, not finished, pending indication of whether the developer wants to move forward with a nine-storey building or pursue a revised proposal. The Board says it expects that direction within six months of this decision.

For those familiar with the protracted history behind the City’s most recent Infill I rules, there are some similar features. In that case, the City was challenged by the Board to demonstrate how it could regulate character. The rules that the City proposed, and eventually adopted, proposed a way to objectively define character through such features as parking, landscaping and others.

In challenging the City to “objectively” define a “landmark” feature, the Board has kept the door open to regulating subjective characteristics that don’t always lend themselves well to quantification. It refers specifically to the Infill I case when it says, “[a]rchitectural objectives and assessments are not a forbidden topic.”

This decision just came out this morning, and I’ll be studying it further in the days to come. It’s unknown whether Mizrahi will pursue the re-design route. If he does, I will be seeking the most transparent and consultative process possible as the City determines how it will measure whether a building is “landmark” or not.

I’ll be sure to provide updates as warranted.

Posted May 11, 2015