Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 05, 2021
CASE NO(S).: PL200550
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1388010 Ontario Inc. & 401701 Ontario Ltd.
Subject: Application to amend the former City of Toronto Zoning By-law 438-86 and the City-wide Zoning By-law 569-2013 - Refusal or neglect of City of Toronto to make a decision
Existing Zoning: Residential R2, Z2.0 under Zoning By-law 438-86, as amended, and Residential R (d2.0, x917), with site exception x917
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a 38-storey residential building containing 536 new residential dwelling units
Property Address/Description: 95-131 & 155 Balliol Street
Municipality: City of Toronto
Municipality File No.: 20 155678 STE 12 OZ
OLT Case No.: PL200550
OLT File No.: PL200550
OLT Case Name: 1388010 Ontario Inc and 401701 Ontario Limited v. Toronto (City)
Heard: October 25, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
1388010 Ontario Inc. & 401701 Ontario Ltd.
Eileen Costello Jasmine Chung
City of Toronto
Kasia Czajkowski
G.R. Feldman Investments Ltd.
Maggie Bassani
Toronto District School Board
Julie Lesage, in absentia
South Eglinton Ratepayers’ and Residents’ Association
Andy Gort*
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON OCTOBER 25, 25, 2021 AND INTERIM ORDER OF THE TRIBUNAL
11388010 Ontario Inc. and 401701 Ontario Ltd. (collectively the “Appellant”) originally proposed to develop a 38-storey residential building on the western portion of the lands known municipally as 95-131 and 155 Balliol Street (“subject property”). The Appellant applied to the City of Toronto (“City”) for Zoning By-law Amendments to amend the former City of Toronto Zoning By-law No. 438-86 (“ZBLA 436-86”) and the City-wide Zoning By-law No. 569-2013 (“ZBLA 569-2013”) (collectively the “Proposed ZBLAs”). The City failed to make a decision on the ZBLA applications within the legislated time and the Appellant appealed to the Tribunal pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).
2At a Case Management Conference (“CMC”) held before a panel differently constituted on March 16, 2021, G.R. Feldman Investment Ltd. (“Feldman”) and The Toronto District School Board (“TDSB”) were granted party status. Subsequent to the CMC, the Tribunal received a request for party status from the South Eglinton Ratepayers’ and Residents’ Association (“SERRA”). By its Order dated April 1, 2021, SERRA was granted party status by the Tribunal.
3During the CMC, counsel for the Appellant advised the Tribunal that productive discussions were ongoing between the parties and that they were interested in pursuing mediation. Tribunal-led mediation was held in June 2021 following which the Appellant presented a settlement offer to the City on September 29, 2021 entered as Exhibit 4, Tab 4 (“Proposed Settlement”). City Council accepted the Proposed Settlement at the October 1, and 4, 2021 meeting subject to the conditions set out in Attachment 1 to the Draft Order presented and entered into as Exhibit 7 (“Conditions”).
4The Tribunal was provided with a copy of the Minutes of Settlement (“MOS”) signed by the Appellant and the TDSB entered as Exhibit 2 and subsequent letter dated October 13, 2021 from their Counsel, Ms. Lesage, entered as Exhibit 4, Tab 9. Ms. Lesage advised that the TDSB has resolved its issues with the Proposed ZBLAs and as such, withdraws its issues in this matter. Further, Ms. Lesage advised that the TDSB withdraws its objections to the approval of the settlement by the Tribunal. Ms. Lesage further advised that the TDSB’s only remaining interest is to ensure that there are no changes to the Appellants’ Proposed ZBLAs which are material to the TDSB’s interests.
5By letter dated October 1, 2021 from their representative Mr. Gort, SERRA advised the City that it supports the Proposed Settlement, entered as Exhibit 4, Tab 6.
6By letter dated October 22, 2021 from Feldman’s Counsel Ms. Bassani to the Tribunal, entered as Exhibit 3, Ms. Bassani advised that Feldman has resolved its issues with the Proposed ZBLAs and withdraws its objections to the approval of the Proposed ZBLAs by the Tribunal and withdraws its issues in this matter. Ms. Bassani further advised that Feldman’s only remaining interest is also to ensure that there are no changes to the Appellants’ Proposed ZBLAs affecting any setbacks.
7The hearing on the merits was converted to a one-day settlement hearing. On the morning of the hearing, the Tribunal was notified via e-mail that the TDSB would not be attending the settlement hearing.
8In support of the settlement, the parties jointly requested the Tribunal approve in principle the Proposed ZBLAs and withhold its final Order pending confirmation from the City Solicitor that the Conditions have been satisfied. In addition, counsel for Feldman requested that the final Order be withheld pending confirmation from Feldman to the Tribunal that it is satisfied with the Proposed ZBLAs in their final form. All parties consented to Feldman’s request.
9ZBLA 436-86 was taken into evidence as Exhibit 5 and is attached as Schedule A and ZBLA 569-2013 was taken into evidence as Exhibit 6 and is attached as Schedule B.
SUBJECT PROPERTY AND SURROUNDING AREA
10The subject property is approximately 0.98 hectares (“ha”) with a frontage of approximately 166 metres (“m”) on Balliol Street and a depth of approximately 59 m. The properties located at 95-131 Balliol Street (“western portion”) are currently occupied by 19 rental townhouses. The properties located at 155 Balliol Street (“eastern portion”) are currently occupied by an 18-storey rental apartment building with 267 rental apartment units.
11The City of Toronto Official Plan (“OP”) has designated the subject property as “Apartment Neighbourhoods”, which are residential areas with taller buildings and higher densities where compatible infill development may take place.
12The subject property is zoned Lands Residential (R2, Z2.0) pursuant to By-law No. 438-86 and Residential (R (d2.0, x917)) pursuant to By-law No. 569-2013. The Proposed ZBLAs would maintain the “R2 Zone” and “R Zone” respectively, and establish site specific exceptions to the subject property which are required to permit the proposed building height and density and to incorporate a series of other appropriate development standards.
13The subject property is located within close proximity to the Yonge-University-Spadina Subway Line and is within 500 m of the Davisville Subway Station (“Subway Station”). This Station is a transit hub and provides connection to other transit services such as bus routes.
14Immediately north of Balliol Street are high-rise residential buildings. Directly east of the subject property are apartment buildings, a recreation facility and some commercial buildings. To the south and west of the subject lands are residential apartments buildings and office buildings.
DEVELOPMENT PROPOSAL
Original Proposal
15The purpose of the original ZBLA 436-86 and ZBLA 569-2013 applications (together “original proposal”) was to permit the Appellant to redevelop the western portion of the subject property with a 38-storey residential building with a tower floor plat of 750 square metres above the 12th floor. The existing 18-storey rental building on the eastern portion of the subject property would be retained. The original proposal included a total of 555 dwelling units, including 19 rental replacement townhouses, a variety of outdoor and indoor amenity spaces and a total of 286 vehicle parking spaces and 500 long-term bicycle parking spaces in a three (3)-level underground garage. The eastern portion of the subject property would maintain the existing apartment building.
Revised Proposal
16The revised proposal is the result of discussions with the City, community consultation and input and mediation. The subject property would be rezoned and add site-specific provisions as set out in Schedules A and B (“revised proposal”).
17The key elements of the revised proposal are the reduction in building height to 37-storeys and a reduction in the number of dwelling units to 442, including the 19 replacement townhouse units. There is a slight increase to the tower floorplate from 750 square metres (“sq m”) to 784 sq m.
18The location of the 19 replacement rental townhouse units would be within the four (4)-storey podium and include two-bedroom, three-bedroom and four-bedroom units. One of the Conditions that the Appellant has agreed to is the commitment to provide tenant relocation packages and this will be one of the items addressed in the Section 37 Agreement to be entered into with the City.
1940% of the new units in the 37-storey building of the revised proposal will contain two-bedroom and three-bedroom units. There will be a private daycare area incorporated into the podium with an adjacent outdoor daycare area. A 904 sq m parkland dedication will be located on the western portion of the subject property. There will be a publicly accessible pedestrian walkway midblock connection located on the east side of the site.
20The parties have agreed that the existing rental units located in the building on the eastern portion of the subject property and the 19 replacement townhouse units will be maintained as rental units for a period of 20 years. This Condition will also be detailed in the Section 37 Agreement to be entered into between the Appellant and the City.
PLANNING EVIDENCE
21Planning evidence and opinion to support the Proposed ZBLAs was provided by David McKay. Mr. McKay is a Registered Professional Planner and a full member of the Canadian Institute of Planners and the Ontario Professional Planners Institute and was qualified by the Tribunal to provide expert land use planning evidence.
22Mr. McKay provided detailed contextual and land use planning evidence and rationale to support the proposed settlement. Mr. McKay reviewed the Proposed ZBLAs and in his professional opinion, the Proposed ZBLAs attached as Schedules A and B constitute good planning and conform to all applicable planning policies.
23In support of his overall conclusions, Mr. McKay noted that the subject property is well suited for intensification. The revised proposal will contribute to a mix of housing options while promoting the development of a complete community that is transit supportive.
24Mr. McKay opined that the Proposed ZBLAs are consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”). The Proposed ZBLAs will permit intensification of land that is in close proximity to a Subway Station thereby efficiently utilizing existing transit infrastructure. It will provide a mix of housing types and unit sizes to serve local and future residents in the City and represents appropriate intensification within an Apartment Neighbourhood.
25The City of Toronto Official Plan (“OP”) designates the subject property “Apartment Neighbourhoods” and these areas are intended to provide for intensification opportunities in the form of infill development. According to Mr. McKay, the site-specific provisions in the Proposed ZBLAs are in keeping with the policy intent of the OP. The revised proposal represents an efficient use of land compatible with the surrounding built form and the podium sculpting will mitigate any shadow impacts. Mr. McKay opined that the revised proposal will achieve the Housing Policies of the OP by contributing to the City’s housing stock as a whole with the provision of new housing in a mix of unit types while retaining existing rental housing units.
26Mr. McKay testified that the subject property is an appropriate location for intensification thereby implementing the vision within the Yonge-Eglinton Secondary Plan (“Secondary Plan”). The increased density resulting from the revised proposal supports the existing and planned transit infrastructure in close proximity to higher order transit. The revised proposal will facilitate a mix of housing types and sizes providing options to families and contributing to a complete community.
27In response to questions from the City, Mr. McKay confirmed that the Conditions in the Proposed Settlement are typical conditions, are appropriate and represent good planning.
28The Proposed ZBLAs adequately address concerns and issues identified by the parties. The revised proposal will facilitate development of the subject property in a way that is compatible with the surrounding land uses, is consistent with, and in conformity with, the land use planning framework established in the PPS and Growth Plan, and will conform to the OP and Secondary Plan.
FINDINGS AND DISPOSITION
29In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided by Mr. McKay. The Tribunal is persuaded by the evidence that the revised proposal promotes efficient development of land, accommodates a range of appropriate mixed uses, intensifies uses within an Apartment Neighbourhood and major transit station area, contributes to the range of housing options available and will be a positive addition to the City.
30The Proposed ZBLAs are consistent with the policy direction of the PPS and conform with the Growth Plan, conform to the directives and policies of the OP and Secondary Plan and represent good planning, in the public interest.
INTERIM ORDER
31THE TRIBUNAL ORDERS on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [32] below, THAT the appeal is allowed in part, and the Zoning By-law Amendments set out in Schedules A and B to this Order, are hereby approved in principle.
32The Tribunal will withhold the issuance of its Final Order contingent upon confirmation, satisfaction or receipt, from the City Solicitor, of the following pre-requisite matters:
a. The Tribunal has received and approved the Zoning By-law Amendments submitted in a final form, confirmed to be satisfactory to: (1) the Chief Planner and Executive Director, City Planning; (2) the City Solicitor and; (3) the solicitor for G.R. Feldman Investments Ltd;
b. The Tribunal is advised that the owner has addressed all of the comments in the February 25, 2021 Memorandum from Engineering and Construction Services, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
c. The Tribunal is advised that arrangements satisfactory to the City are in place whereby the owner pays for and constructs any improvements to the municipal infrastructure in connection with the Functional Servicing Report and Hydrogeological Report, to be submitted for review and acceptance by the Chief Engineer and Executive Director, Engineering and Construction Services, should it be determined that improvements to such infrastructure are required to support this development arising from the accepted engineering reports;
d. The Tribunal is advised that a Section 37 Agreement satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor, has been executed and registered on title to the satisfaction of the City Solicitor, securing the community benefits and matters of legal convenience to support the development described in Recommendation 6 of the City Council instructions; and
e. The Tribunal is advised that City Council has approved the Rental Housing Demolition Application No. 18 173492 STE 22 RH in accordance with Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006, to allow for the demolition of the nineteen (19) existing townhouse rental dwelling units at 95-131 Balliol Street and the owner has entered into one or more agreements with the City, and those agreement(s) have been registered on title to 95-131 and 155 Balliol Street, securing rental housing related matters, all to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.
33The Panel Member will remain seized for the purposes of reviewing and approving the final drafts of the Zoning By-Law Amendments and the issuance of the Final Order and with respect to such outstanding matters relating to this Interim Order and may be spoken to concerning matters relating to this Interim contingent Order and the issuance of the Final Order.
34If the Parties do not submit the final drafts of the Zoning By-law Amendments, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 32 above have been satisfied, and request the issuance of the Final Order, by Wednesday, May 25, 2022, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendments and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
35The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the time lines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order and such further follow-up as may be required to have the Final Order issued by the Tribunal.
“C. Hardy”
C. HARDY
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.