Shiplake Properties Ltd. v. Toronto (City), 2021 CanLII 115303

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 09, 2021

CASE NO(S).: PL171113

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Shiplake Properties Ltd.

Subject: Application to amend Zoning By-law No. 438-86 - Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: R2 Z0.6

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit the development of a 38-storey mixed use building

Property Address/Description: 22 Balliol Street

Municipality: City of Toronto

Municipality File No.: 16 119794 STE 22 OZ

OLT Case No.: PL171113

OLT File No.: PL171113

OLT Case Name: Shiplake Properties Ltd. v. Toronto (City)

Heard: October 13, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Shiplake Properties Ltd.

D. Bronskill

(the “Appellant”)

City of Toronto (the “City”)

A. Suriano

K. Czajkowski

MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON OCTOBER 13, 2021 AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal under the Planning Act (the “Act”), s. 34(11), arising from City Council’s failure to make a decision on the Appellant’s Zoning By-law Application within the statutory timelines prescribed under the Act. The Subject Property is municipally known as 22 Balliol Street, City of Toronto (the “Property”).

2The Appellant has proposed to intensify the Property and is requesting permissions to construct a 38-storey, 399-unit apartment building on the site.

3The Hearing of the merits for the matter was scheduled to be heard for 12 days commencing September 29, 2021. Prior to the start of the Hearing, the Parties contacted the Tribunal and advised that a potential settlement had been reached by the Parties. However, before settlement could be agreed to, the City required Council’s direction and endorsement on how to proceed. With several issues already having been resolved, the Parties asked that the Tribunal commence the hearing after the 1^st of October to have Council’s direction on the record. If settlement was reached only a one-day hearing would be required, and if not a five to six-day hearing would suffice.

4On October 1, 2021, Council met and endorsed the recommendations of their staff to proceed with the matter and come before the Tribunal as a settlement between Parties.

5A one-day Settlement Hearing for the Zoning By-law Amendment (the “ZBLA”) was then agreed to and scheduled by the Tribunal. South Eglington Ratepayers’ & Residents’ Association (“SERRA”), whom had also been granted Party status for this matter sent correspondence to the Tribunal in advance providing their support and agreement to the settlement.

THE HEARING

6Mr. Suriano, Counsel for the City provided a brief opening submission and overview of the settlement reached. He provided some details to the changes that had led to the Parties finding common ground and leading to the issues on the matter being resolved. These included, but are not limited, to the following changes proposed:

i. reduction of the podium height from original 3-to-8 storeys to revised 1-to-4 storeys;

ii. reduction in tower floor plate size from 815 to 750 square metres (“sq m”);

iii. reduction of units from 429 to 399, with 40% being 2 and 3-bedroom units;

iv. a 3-metre-wide midblock connection between Balliol Street and Davisville Avenue;

v. requirement for a grocery store;

vi. increase of setbacks of the podium from Balliol Street and increase of tower stepbacks; and

vii. affordable housing for 25-year duration and including larger units.

7Mr. Suriano’s submissions included a brief explanation of the City’s position and factors leading to settlement on the proposal and its intensity. This included section 37 agreement benefits under the Act and the proposal’s inclusion of 32-33 units for affordable housing for 25 years as indicted above.

Applicable Legislation and Policies

8Land use planning in Ontario is a policy-led system implemented in hierarchical fashion. This system is deliberately crafted to recognize that there cannot be a one-size fits all approach to implementing policy framework, given the diversity of Ontario’s local communities. As such, the broader Provincial policies and objectives are to be implemented by each municipality through their Official Plan (“OP”), Zoning By-laws, issue-specific guidelines, etc.

9Although the Parties have settled their issues, the Tribunal must still determine if the proposal meets provincial interests and municipal policy framework. In adjudicating the appeal, the Tribunal must have regard to matters of provincial interest enumerated in s. 2 of the Act. The Tribunal must be satisfied that the proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”) and pursuant to s. 3(5) of the Act. Further, the Tribunal must also find that the proposal conforms with policies of the provincial plan: A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”). Lastly the Tribunal must be satisfied with the proposal’s conformity with the City OP, and that it represents good land-use planning in the public interest.

Expert Witness

10The Tribunal affirmed Tom Kasprzak. He provided his Acknowledgement of Expert’s Duty form and having heard his credentials with no objection, the Tribunal qualified Mr. Kasprzak to provide opinion evidence in the field of land-use planning.

11Mr. Kasprzak provided a brief history of the application and advised his firm had been retained by the Appellant in 2017 and he personally has been working on the file since 2019.

The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), The PPS and The Growth Plan

12Mr. Kasprzak provided the Tribunal his expert opinion on the proposal’s regard to the Act. In his opinion the proposal with its revisions is appropriate and has had regard to the Act, particularly to matters of provincial interest in s. 2 and all relevant subsections within.

13In the opinion of Mr. Kasprzak, the proposal is consistent with the PPS. He provided evidence that the Property is within the identified settlement area, which shall be the focus of growth and development and opined the proposal is an efficient use of land, infrastructure and is transit supportive. Bringing the Tribunal to s. 1.1.3.1 and s.1.1.3.2, he opined the proposal is consistent with these policies.

14Mr. Kasprzak further opined the proposal is consistent with s. 1.1.3.3 and s.1.1.3.4. In his opinion the intensification sought provides a range of housing options that are a compact built form near transit and have the available infrastructure necessary, while being conveniently located near several public service facilities.

15Section 1.4.3 provides greater detail to the range and mix of housing options and affordable housing needs the PPS requires planning authorities to consider. Mr. Kasprzak opined the proposal is consistent with this policy, with emphasis on affordable housing needs provided. He opined this is demonstrated by the proposal’s 25-year commitment to provide 32-33 units focusing on those needs.

16Concluding Mr. Kasprzak’s opinions on the proposal’s consistency with the PPS, he opined the land use pattern, density and mix of uses of the proposal, minimize the length and number of vehicular trips of occupants with its proximity to transit and accessibility to active transport as is required in s. 1.6.7.4. Further promoting energy conservation and climate change strategies by the proposal’s compact form and its overall consistency with s. 1.8.1 (a).

17In providing his opinion to the proposal’s conformity to the Growth Plan, Mr. Kasprzak opined conformity is highlighted by the Property and the proposal being within an identified strategic growth area and being 500 to 800 metres away from the Davisville/Yonge Subway station.

18Mr. Kasprzak directed the Tribunal to s. 2.2.1, Managing Growth and s. 2.2.1.2(c) again highlighting the proposal’s location within a settlement area and subsections:

i. being within a delineated built up area;

ii. strategic growth area;

iii. proximity to higher order transit; and

iv. proximity to public service facilities.

19Section 2.2.1.3 (c) provides direction for an urban form that optimizes infrastructure, particularly along transit corridors that support the achievement of complete communities through a more compact form.

20Mr. Kasprzak opined the proposal supports the achievement of complete communities, conforming with s. 2.2.1.4 (a), which directs a diverse mix of land uses, including residential and employment, as well as convenient access to local stores, services, and public service facilities. He also opined the proposal provides a diverse range and mix of housing options as directed in s. 2.2.1.4 (c), including affordable options. In conclusion he opined the proposal provides compact built form conforming with s. 2.2.1.4 (e), with a vibrant public realm and public open space.

21Mr. Kasprzak provided his expert opinion that the Growth Plan policies cited above, as well as a general analysis of the proposal to the Growth Plan overall, lends to his ultimate opinion, that the proposal conforms to the Growth Plan.

The Official Plan and Secondary Plan

22Mr. Kasprzak opined the proposal being in an Apartment Neighbourhood land-use designation and adjacent to the mixed-use area of Yonge Street, transitions well to the lower scale built forms existing to the north and the high and mid density built forms, both existing and proposed to the east.

23He opined the proposal conforms to OP polices in s. 2.3.1, Healthy Neighbourhoods. Specifically, s. 2.3.1.2, that highlights Apartment Neighbourhoods are residential areas with taller buildings and higher densities than Neighbourhoods and are considered to be physically stable. Any proposed development should be compatible to the existing and anticipated context of the area, while providing quality indoor and outdoor amenity space and maintaining adequate sunlight, privacy and limiting shadows for proposed and existing units in the area.

24Mr. Kasprzak brought the Tribunal to the Visual Evidence in Exhibit 2 and opined the shadow studies provided and overall visual evidence demonstrate the proposal’s conformity to s. 2.3.1.2. Further he opined the visual evidence demonstrates the proposal’s conformity to s. 2.3.1.3. In Mr. Kasprzak’s opinion, the compatibility and gradual transitions of the proposal to the north (approximately 168 metres to the closest Neighbourhood) and east are quite visible and his evidence on setbacks and stepbacks are meeting the urban design tool requirements of the 45 degree angular plane, which reinforce the policy goal and his opinion of conformity.

25Mr. Kasprazak opined Public Realm (policy 3.1.1) is achieved by the proposal’s urban design thrust and focus on comfortable and accessible street design and midblock pedestrian connections. As well as the proposed retail entrance for the building being pushed forward closer to the sidewalk and pedestrian access.

26Built Form (policy 3.1.2) is achieved in the opinion of Mr. Kasprazk with the building location and modified stepbacks and setbacks proposed; as well as retail entrance details indicated above and main and secondary building entrances appropriately incorporated, while driveway access is setback from main building façade.

27Mr. Kasprzak opined that the proposal provides conformity to the Tall Building responsibilities set out in s. 3.1.3 of the OP. The three elements of base, tower, and top are well set out, as well as appropriate design elements including projecting balconies only on the west side of the building. Mr. Kasprzak also opined, the reduced floor plates proposed and slender tower design, with its limited shadow impacts led to his opinion that the proposal conforms to this relevant OP policy.

28Mr. Kasprzak provided his overall opinion that the proposal conforms to the Yonge-Eglington Secondary Plan (2014), that applies to and is still in force for the proposal and the Property. The reason for this is that the Appellant had applied for a ZBLA before the current in force Yonge-Eglington Secondary Plan (“Amendment 405”) came into effect. Section 10.9 of Amendment 405 states that the previous plan is still in force if an appeal predates the current plan’s adoption.

29Although not in force, Mr. Kasprzak opined the proposal does take direction and implements appropriate aspects of Amendment 405, particularly with revisions proposed with stepbacks, public realm and pedestrian connections. Mr. Kasprzak also opined the proposal respects elements of s. 1.3.3 (d) and the Davisville Character Area, where new tall buildings are to be compatible and provide adequate sunlight and sky view, which was previously discussed. He also opined the proposal respects Amendment 405, s. 5.4.3 (h) and the 25 to 40 storey heights envisioned for the Davisville area and heights diminishing and transitioning as distance increases from the subway station.

Tall Building Design Guidelines and Other Issues from Issues List

30Mr. Kasprzak opined the proposal respects and has regard to the City’s Tall Building Design Guidelines. In his opinion the proposal is within a cluster of existing and proposed tall buildings, which also fall within the range of approved and allowed heights. He opined the evidence already provided demonstrates this and added emphasis on the following guidelines (but not exclusive to):

i. s.1.3, Fit and Transition;

ii. s. 1.4, Sunlight and Sky View;

iii. s. 2.6, Pedestrian connections;

iv. s. 3, Tall Building Design and s. 3.1.1, base building scale and height;

v. s. 3.2.1, floor plate and shape; and

vi. concluding with s. 3.2.5, balconies.

31Speaking to additional issues originally cited, Mr. Kasprzak opined the proposal provides adequate vehicular parking for the residential portion of the building and further provides adequate servicing and loading facilities, which are setback and incorporated into the envelope of the building.

32Mr. Kasprzak also opined that other aspects, including landscape and tree preservation or potential replacement has been considered by the proposal. However, the Parties have agreed that the site plan approval stage is the appropriate time to address landscape and tree preservation and replacement concerns.

Summary of Land-Use Planning Opinion

33Mr. Kasprzak summarized that he had reviewed the settlement letter included in Exhibit 1, page 610-612 and opined the terms and land-use planning aspects referenced are appropriate and justify the ZBLA request. He also opined that if the Tribunal was inclined to impose the draft conditions provided, the withholding of the Order and draft conditions to be imposed were appropriate.

34He concluded that it was his expert land-use planning opinion that ZBLA sought was appropriate and should be approved. He opined the proposal has had regard to s. 2 of with the Act, is consistent with the PPS and conforms to the Growth Plan, the OP and applicable Secondary Plan and represents good land-use planning that is in the public interest.

DECISION

35The Tribunal, having reviewed all evidence provided in Exhibit 1-5, and having heard the opinions of Mr. Kasprzak, accepts the uncontroverted expert land-use planning evidence provided by the witness. The Tribunal finds that the proposed planning instruments, as it will permit the development have appropriate regard for the matters of Provincial Interest and s. 2 of the Act. The Tribunal also finds that the ZBLA is consistent with the PPS, conform to the GP, the City OP and Secondary Plan, and represent good land-use planning, and is in the public interest.

36The Tribunal, having been provided evidence and having heard from Mr. Kasprzak that s. 37 contributions proposed meet the provisions set out in the Act, find its use to be appropriate and acceptable.

INTERIM ORDER

37The Tribunal Orders that the appeal is allowed in part and the Zoning By-law Amendment is approved in principle.

38The Tribunal will withhold its final Order pending completion of the items set out in Attachment 1, to be read as amended in accordance with this Decision and Order.

39If the parties have not completed the items in Attachment 1 within six months of the issuance of this Decision, the parties shall provide a written status update to the Tribunal’s Case Coordinator by that same date.

40The Member may be spoken to, at a time that is convenient to the Tribunal and the Parties, should any difficulties arise in finalizing the items set out in Attachment 1.

“M. Russo”

M. russo

Member

Ontario Land Tribunal

Website: www.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.

PL171113 – Attachment 1

Conditions of Final Order

The Tribunal shall withhold its final order on the Zoning By-law Amendment application until such time as the Tribunal has been advised by the City Solicitor that:

1. the proposed Zoning By-law Amendment is in a final form satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;

2. the owner has submitted a revised Functional Servicing Report which addresses the May 18, 2016 Memorandum from Engineering and Construction Services, including confirmation of water and fire flow, sanitary and storm water capacity, and a Storm Water Management Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

3. the owner has submitted an updated Hydrogeological Report and supporting documents addressing any on-site groundwater to the satisfaction of the General Manager, Toronto Water;

4. 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; and

5. 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 following community benefits and matters of legal convenience to support the development:

a. on-site affordable housing as described in the With Prejudice Settlement Offer dated September 1, 2021, with the election of the option of either a total of 32 affordable housing units or 33 affordable housing units to be made by the City Solicitor in consultation with the Ward Councillor and City Planning; and

b. the provision by the Applicant of a publicly accessible pedestrian walkway (the "Midblock Connection"), to be secured by means of a surface pedestrian public easement, in the location as generally shown as "midblock connection" on the Revised Plans dated July 6, 2021 and prepared by gh3 Architects, the final location and design of which will be secured as part of and through the site plan approval process. The Midblock Connection shall have a minimum width of 3.0 metres, unless otherwise satisfactory to the Chief Planner and Executive Director, City Planning Division.