Satin Finish Hardwood Flooring Ontario Limited v. Toronto (City), 2021 CanLII 129311

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

December 07, 2021

CASE NO(S).:

PL160109

PL140860

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Satin Finish Hardwood Flooring Ontario Limited

Subject:

Failure of City of Toronto to announce a decision respecting Proposed Official Plan Amendment No. 13 277919 WET 11 OZ

Municipality:

City of Toronto

OLT Case No.:

PL160109

OLT File No.:

PL160109

OLT Case Name:

Satin Finish Hardwood Flooring Ontario Limited v. Toronto (City)

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

Applicant and Appellant:

Satin Finish Hardwood Flooring Ontario Limited

Subject:

Application to amend Zoning By-law No. 1-83 and Zoning By-law 7625 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning:

Prestige Employment (PE) and Multiple Family Dwellings First Density Zone (RM1-31)

Proposed Zoning:

Site Specific (To be determined)

Purpose:

To permit 99 three-storey townhouse units on 18 blocks with a private street network.

Property Address/Description:

8 Oak Street

Municipality:

City of Toronto

Municipality File No.:

13 277919 WET 11 OZ

OLT Case No.:

PL160109

OLT File No.:

PL160110

Heard:

August 30 – September 10, 2021, October 19 - 25, 2021 and November 22, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Satin Finish Hardwood Flooring Ontario Limited

P. Harrington

City of Toronto

A. Biggart K. Layton

INTERIM DECISION OF THE TRIBUNAL DELIVERED BY S. TOUSAW

1More than one land use choice may be appropriate for a particular property. Context is key to assessing the planning merits of land uses within the built environment. The physical, economic and social characteristics of the immediate area may lead to one or more suitable end uses.

2This appeal is a case on point. A request for land use conversion from Employment to Residential (“conversion”) reveals strengths and weaknesses for both land uses. Either use may be found appropriate for the planning context and either use is likely to adapt and contribute to the area’s success over the long-term. However, one use may rise in preference above another through its relative planning merits based on the particulars of context.

3Here, the Tribunal finds in favour of conversion. Among the many reasons supporting the Decision, is the critical finding that the contextual setting here is one in a well-established transition away from traditional employment uses.

4Satin Finish Hardwood Flooring Ontario Limited (“Satin”/“Appellant”) seeks to establish a residential development at 8 Oak Street (“site”) in the City of Toronto (“City”). Satin appealed Official Plan Amendment 231 (“OPA 231”) adopted by the City which retained the site’s land use designation of General Employment Areas. Satin also appealed the absence of decisions by the City on its applications for Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) seeking approval for the residential development. These matters were heard as a combined hearing.

5Katie Butler and Robert Wood attended the first day of the hearing as Counsel for both Loblaws Inc. and CP REIT Ontario Properties Limited, being the two Participants in this case. They explained that Loblaws Inc. had previously proposed to request Party status in the hearing but is now satisfied with maintaining Participant status given its agreement with the Appellant to implement noise mitigation in the site and building designs and on Loblaws Inc.’s property, and provided that no further change in density or setbacks occur, as agreed by the Appellant. As such, these Participants have no remaining issues and will not file a Participant Statement.

6OPA 231 was adopted by the City to implement its 2013 Municipal Comprehensive Review (“MCR”) of the 2002 Official Plan. Numerous appeals were lodged against OPA 231, many were resolved, and the City-wide policies came into effect through a Decision of the Tribunal issued on April 8, 2021. Of the remaining appeals, this hearing constitutes the first site-specific case to be adjudicated.

7The Parties had requested an Interim Order, should the Tribunal find the conversion appropriate, or an Order dismissing the appeals, should the conversion not be approved. This Decision issues an Interim Order allowing the appeal to OPA 231 and directs further work among the Parties to finalize the site-specific OPA and ZBA for approval on settlement, or through a further hearing on remaining issues.

LOCATION AND PROPOSAL

8The site is located within the Weston Neighbourhood to the southeast of Highway 401’s (“401”) interchange with Weston Road (“Weston”). It is a 2.57 hectare (“ha”) rectangular property at the northeast corner of Oak Street (“Oak”) and Knob Hill Drive (“Knob Hill”). The property contains dated industrial buildings and structures, formerly used to manufacture Satin’s wood products, and which now sit vacant and unused.

9The site abuts and is bounded by Oak to the south, Knob Hill to the west, a retail plaza to the north, and the Canadian Pacific Railway MacTier Subdivision rail line (“CPR”/“railway”) to the east.

10Directly across Oak from the site is a townhouse development and east of that is a substantial lighting manufacturing facility known as Visioneering. Across Knob Hill is a large format, retail food store with other internal departments/services (“Superstore”), its extensive parking lot, and separate buildings for such uses as a bank, gas station and automobile service. Further west, across Weston from the Superstore site, are two high-rise and one mid-rise residential towers at the Weston – Oak intersection, and a variety of retail and service uses to their north along Weston. Abutting to the north of the site are several commercial buildings comprising the Crossroad’s Centre (“Crossroads”) of both large format and plaza retail, service and related businesses. Beyond the railway to the east is a large vacant parcel along Oak owned by the Visioneering site’s owner, and to its north, a low-rise residential community of townhouses and detached dwellings.

11Satin’s proposed development, from south to north, consists of 14 three-storey townhouses fronting on Oak, two mid-rise eight-storey apartment buildings with a 0.38 ha public park centred between them along Knob Hill, and a six-storey retirement home at the north end. A total of 509 residential units comprise 14 townhouses, 367 apartments and 128 retirement units. All buildings would be served by an internal private drive with two access points to/from Knob Hill. A berm would flank the east property line for noise reduction and safety regarding the railway.

LEGISLATIVE TESTS

12In making a decision under the Planning Act (“Act”) with respect to these appeals, the Tribunal must have regard to matters of provincial interest as set out in s. 2. Under s. 2.1(1), the Tribunal must also have regard to any decision of City Council made under the Act that relates to the same planning matter, and the information considered by them in making those decisions.

13Under s. 3(5), the Tribunal’s decision must conform with or not conflict with an applicable provincial plan, being A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“2020 GP”) in effect at the date of the decision. In this case, Ontario Regulation 305 (“O. Reg. 305”) of September 6, 2019 established that certain “matters shall be continued and disposed of in accordance with the 2006 Growth Plan as it read on June 16, 2006” (“2006 GP”) and among the affected documents is “Amendment No. 231 to the Official Plan of the City of Toronto.” Thus, this appeal to OPA 231 must be evaluated against the 2006 GP. For the remainder of this Decision, all references to “2006 GP” and “GP” refer to the 2006 GP, as differentiated from the 2020 GP where so noted.

14O. Reg. 305 does not apply to the site-specific applications for OPA and ZBA. They must be assessed against the 2020 GP. At the Parties’ request, these differing requirements are addressed through a phased approach to the Decision. First, the conversion request is considered with reference to the applicable 2006 GP and other requirements, and if found appropriate, then second, the site-specific OPA and ZBA will be considered with reference to the 2020 GP and other requirements.

15Also under s. 3(5) of the Act, the Tribunal’s Decision on both OPA 231 and the combined OPA/ZBA must be consistent with the provincial interests expressed in policy statements, being the Provincial Policy Statement, 2020 (“PPS”) in effect at the date of this decision.

16The ZBA must conform with the Official Plan under s. 24(1) of the Act. The Clergy principle, applying the OP as it existed at the time of appeal, was not a point of contention in this hearing, and witnesses referred to both the former version of the OP and its current content as amended by the now in-force portions of OPA 231.

EVIDENCE

17Each of the Parties tendered professional evidence through qualified experts in their field who referenced a joint document book, witness statements, visual evidence and other documents in 16 Exhibits (“Ex.”) totalling a few thousand pages.

18Without objection from either Party, the Tribunal qualified each of the professional witnesses to provide opinion evidence in their field of expertise noted below. Each witness had executed the Tribunal’s Acknowledgement of Expert’s Duty form.

For the Appellant:

• Douglas Annand – land economy

• Gordon Reusing – acoustical engineering

• Michael Spaziani – urban design

• Paul Cosburn – landscape architecture

• Anthony Volpentesta – land use planning

For the City:

• Matthew Premru – land use planning and economic development

• Giuseppe Tomaselli – acoustical engineering

• Joanna Chludzinska – urban design

• Christina Heydorn – land use planning

• Franko Romano – land use planning.

SUMMARY POSITIONS

19With reference to the extensive written and oral evidence and submissions, the Parties’ positions are summarized at a high level, as set out below.

Appellant

20The Appellant requests that the conversion be allowed for the following primary reasons:

• this south of 401 area (“south 401”) has transitioned and continues to transition to a mix of uses, unlike the extensive traditional employment area north of 401 (“north 401”);

• only one traditional employment use – Visioneering – remains in south 401;

• the site’s adjacent uses are predominantly residential and retail/service, with vacant or traditional employment lands adjacent to only a small fraction of its perimeter;

• residential uses neighbouring retail uses are appropriate and common in the City, do not constitute incompatible uses, and are capable of harmonious and interdependent co-location utilizing standard mitigation measures;

• jobs anticipated at the proposed retirement home plus work-from-home employment in the apartments and townhouses will exceed the likely jobs produced by an employment use.

City

21The City requests that the conversion be denied for the following primary reasons:

• employment uses require physical space to establish, in support of integrated business clusters across wide areas that generate wealth, create jobs and support a robust economy;

• the extent of employment lands has reduced while demand has increased for this essential asset that cannot be expanded within the City;

• this site has convenient access to 401, is a short drive from the Pearson International Airport, abuts the CPR, and adjoins employment uses on three sides;

• ample opportunity for residential intensification exists within residential designations and mixed-use areas along the City’s avenues, without the need for this employment land conversion.

SUMMARY EVIDENCE

22Before making necessary findings in this matter, a high-level summary is provided of the extensive evidence received, and now categorized here by general subject matter. The evidence of the various experts intertwines when applied to the matters at issue, such that the general position of the Parties is best understood first, followed by the application of those respective positions to the statutory requirements.

23The witnesses referred to numerous regulations, policies and guidelines, all cited in their witness statements and other Exhibits. Those specific references are not identified in the following summaries, but are addressed in more detail in reference to the primary issues reviewed later.

24Capitalized terms (e.g., Employment or Residential) refer to land use designation groupings in the OP, while the same uncapitalized terms refer to their usual meaning.

Economy

25From his economic assessments, Mr. Annand, for the Appellant, finds this south 401 area to consist of a relatively small mixed-use cluster of retail, residential and limited manufacturing uses. The area has transitioned from former manufacturing uses to retail and residential, with retail itself suffering some loss of use, in part due to e-commerce. This site is not required for new retail purposes and carries limited potential for traditional employment uses, the latter being in decline in the City and growing in surrounding communities within the Greater Toronto Area.

26Mr. Annand refers to the following jobs data to illustrate the difference between north and south 401. Jobs in north 401 include 53% manufacturing/warehousing and only 23% retail, compared to south 401 with only 11% manufacturing/warehousing but fully 66% retail. Traditional industry no longer represents a significant portion in south 401. The focus towards retail here will be supported by residential intensification with its population within walking distance of services.

27Mr. Annand observes that, while close to the interchange of 401 – Weston, this site has indirect highway access and no direct exposure to 401. It must deal with many of the same issues that affected 21 Oak to the south which resulted in its previous conversion from Employment to Residential. Despite rising property and lease rates in the broader Employment area, the continued vacancy of this site suggests a low attractivity for employment investment and the need for a different use. The potential re-use of existing buildings on the site for office and industrial uses would generate less than 100 jobs, equally replaced by jobs at the planned retirement home, with additional jobs in the form of work-from-home within the townhouses and apartments.

28While compatibility is reviewed by others, Mr. Annand notes from an economic perspective that Visioneering opened and continues operating successfully despite its location adjacent to residential uses to the east and west. Visioneering is not a Party to this proceeding, suggesting a lack of opposition to the proposed residential uses here. Mr. Annand anticipates the same success as Visioneering for the existing retail uses near the proposed residential uses on this site, with the added benefit that each supports the other.

29To the contrary, Mr. Premru, for the City, emphasizes that the top concern is the availability of land for business in the pursuit of economic diversity and stability as set out by the City in its strategic plan and OP. Land is an essential input to business and is necessary to ensure the creation and retention of jobs to facilitate a live-work-play City. This site’s large size, access to 401, proximity to the airport, and connection with the north 401 industrial area, make it highly suitable for continued Employment uses. Employment areas support 27% of total jobs on only 16% of the City’s land area, which warrants protection given its relatively small land base. The City anticipates having no vacant industrial land remaining by 2031.

30With employment uses and a railway adjacent to this site, Mr. Premru opines that incompatibilities can and should be avoided by preventing the introduction of a sensitive use. Retention for an Employment use here will enhance existing or new jobs-generating opportunities on adjacent sites. In OPA 231, while some requests were considered reasonable for conversion of isolated sites based on their fit with the broader Employment area, the location and size of this site are suitable for a wide range of Employment uses.

31Mr. Premru notes that the low vacancy rate and high lease and selling prices of Employment properties result from a high demand of a limited supply. Given the numerous opportunities for residential intensification elsewhere, this high potential site should be protected for employment purposes. Although new major retail in Employment areas may only be considered through a MCR, Mr. Premru advises that the Superstore and Crossroads developments are permitted in General Employment and such designation also permits the wide range of employment uses. Conversion requests should be evaluated through policy objectives, needs of the area, and potential outcomes in comparison to the permanent loss of employment land, all in the context of the public good.

Compatibility

32Issues of compatibility between employment and residential uses focussed on matters of acoustics as addressed through the engineering evidence, and to a lesser degree on visuals and traffic as noted by the planning evidence. Two primary documents are referenced: provincial Guideline D-6: Compatibility Between Industrial Facilities and Sensitive Land Uses (“Guideline D-6”) setting out potential influence areas based on the nature of an industrial facility, within which adverse effects on sensitive uses must be addressed; and the provincial Environmental Noise Guideline, Publication NPC-300 (“NPC-300”) setting out sound level limits from stationary sources.

33Mr. Reusing, for the Appellant, explains that the primary noise and vibration sources to be addressed are from: highways and streets, known as urban hum; the railway; and from the employment uses including truck traffic, ventilation, and on-site electricity generation. With reasonable and common mitigation measures, the sensitive residential uses can achieve compliance with Guideline D-6 and NPC-300. Abatement includes noise barriers at either or both the source (Superstore and railway) and receptor (dwellings), and berms, window and wall features at the receptor.

34Mr. Reusing advises that, of the Employment uses in the area, only the Superstore must be addressed through this proposal, given that Visioneering is flanked by residential uses situated closer to it than this site. Similarly, Mr. Reusing considers little effect on the vacant Employment property to the east of the site, should it develop in future, given its adjacency to existing residential uses to the north and east.

35Mr. Reusing is satisfied with the Appellant’s agreement with the Superstore (Ex. 5) for necessary abatement measures, recognizing that details or requirements may change based on the final design for this site and its Class assigned under NPC-300. The agreement ensures that the Appellant will pay for the necessary source abatement measures at the Superstore. He recommends Class 4 for this site, with its somewhat higher noise limits, to give the Superstore more flexibility for future changes, although both the residential and retail uses may proceed if Classes 1 or 2 are applied.

36Mr. Tomaselli, for the City, cautions that final conclusions cannot be reached on matters of compatibility and abatement given the need for potential changes to the development design, resulting from: new or corrected inputs to the noise study, including a lower speed limit on Knob Hill; trucks’ back-up beepers; refrigerated truck traffic at night; and a garbage compactor. Further work is required to assess support for a Class 4 designation, while Class 1 would be more restrictive and warrant greater mitigation.

37In the absence of final noise abatement requirements, Mr. Tomaselli does not support the proposed conversion. He does, however, acknowledge that many developments in the City have satisfied similar acoustics issues between different uses, and that requirements are often addressed at the detailed site plan control stage of approval. A general concern is the potential for more noise complaints from residents if the higher noise limits of Class 4 are applied. Mr. Tomaselli advises that the noise and vibration requirements are not insurmountable but could be greater than what was understood by Superstore, and that future compliance will rest with the employment use regarding its on-site sources of noise.

Urban Design

38Mr. Spaziani, for the Appellant, explains that in designing the concept plan, he considered all edges of the development to address compatibility and transition to streets, railway, and adjacent residential and commercial uses. In addition, the central park is considered an organizing element for the site. The result is a central public greenspace bordered by eight-storey apartments, transitioning down to six storeys for the retirement home at the site’s north end, and down to three-storey townhouses at the south end.

39Mr. Spaziani considers the resulting proposed buildings and open space to respect and complement the area’s existing built form and to account for the potential for new development to the east on the Employment lands. He notes that the expansive parking areas, known as “greyfields,” to the north and west of the site represent potential areas for the intensification of mixed uses, including residential.

40In Mr. Spaziani’s view, such site considerations as pedestrian and vehicle access, setbacks, angular planes, shadows, privacy, and public use are achieved appropriately. He considers the proposal to represent gentle intensification with substantial greenspace and outdoor areas including the public park, large courtyards, and along the railway. At 0.37 ha, the park accounts for 15% of the site area. The ungated private drive will enable convenient resident, visitor and service vehicle access.

41Mr. Spaziani acknowledges that the plan may change as matters of acoustics and City requirements are addressed, but submits that the plan demonstrates that suitable buildings, massing, setbacks, access and open space can be achieved here. The concept plan appropriately reflects the City’s guidelines for mid-rise buildings and infill townhouses. He recommends that the necessary condominium agreements for this site enable public access, including pedestrian access from Oak to the public park. While the park could be located at the Oak – Knob Hill intersection, he raises concerns with noise and safety, preferring the benefits of a more protected, mid-block environment with “eyes on the park” from the adjacent apartments.

42Although the site could accommodate a public street, Mr. Spaziani explains that the objective is to enable one-level below grade parking under the buildings and private drive. He does not recommend a gated community and anticipates that public access on the private drive would produce little additional on-site traffic, given the park’s frontage on Knob Hill and few users would drive there.

43Mr. Cosburn addressed landscape issues specifically, noting that 52% of the site is in a landscape role, including: the public park; open space along the railway that could support a dog park; amenity areas adjacent to buildings; and outdoor courtyards. Space is available for more trees along streets and the internal drive, if desired. The central park maximizes convenient access and contains ample room with recommendations for peripheral trees, and central built and natural play areas. Some shade is desirable in parks; here some shade is provided by the south apartment building, which can be replaced gradually by the shade of maturing trees. Mr. Cosburn considers the park safe and accessible given its sufficient street exposure, framing by buildings with interactions through windows and from balconies, and the vested interest of residents to keep the park safe and accessible for social interaction. He has not reviewed the potential for a public park at the intersection, but acknowledged that such location would experience less shadow, may require shade structures, and expressed preliminary concern over the potential for increased street noise.

44Ms. Chludzinska, for the City, considers the proposed site design to not reflect the existing and planned context. The necessary mitigation measures would detract from the public realm with noise barriers including screens, walls and large enclosed loading bays. Knob Hill, primarily used for goods movement, is not a suitable location for residential intensification and views from the site to the retail uses would be undesirable. Rapid transit is not nearby, although bus routes do operate along Weston and Oak. The area consists primarily of low-rise buildings and if higher were allowed here, adherence to guidelines related to street width, stepbacks and shadows should be incorporated.

45Ms. Chludzinska recommends an internal public street(s) for this site to ensure public access, more greenspace, wider sidewalks, and appropriate regard for the busy Oak – Knob Hill intersection. Measures to address on-site loading spaces would reduce the number of grade-level apartments adjacent to the public park. Such park would be better situated to the south or west of the mid-rise buildings for no shadowing and higher visibility from the adjacent streets.

Planning

46The planning evidence relied, where necessary, on the foregoing technical evidence when arriving at certain opinions summarized below.

47Mr. Volpentesta, for the Appellant, opines that the proposed residential development: fits well within the existing mix of uses in the area; represents desirable intensification; has access to and supports public transit; would not result in negative impacts to the existing and future Employment uses in this area; and satisfies all applicable policy requirements.

48He sees a fundamental disconnect between the predominant uses of south 401, being retail/service with adjacent residential, and its planned function through the OP designation of Employment. Like other sites endorsed by the City for conversion, this site warrants the change for reasons of relative isolation from industry clusters and north 401, limited demand for additional retail, and no effect on the City meeting its jobs forecast in the GP. The south 401 focus on retail/service would benefit from and be compatible with new residential uses, resulting in a more complete and walkable community.

49Ms. Heydorn, for the City, with reference to her economic expertise, emphasizes the need to protect and retain the finite supply of Employment land to encourage and assure long-term investment. Residential intensification is directed along Avenues and in Centres and should be prevented from ‘out-competing’ employment uses that may require more time to establish and produce returns. Vacant Employment land is expected to be gone by 2031. General Employment areas, such as in south 401, permit retail to support the growing population of the City. The PPS prioritizes avoidance over mitigation when protecting Employment areas. This area has some 50 businesses providing approximately 1,300 jobs. This conversion could spur further requests in the area, to the detriment of the existing and potential Employment uses.

50Mr. Romano, for the City, emphasizes that for Employment areas to be viable, they must be able to function successfully over the long-term. Introducing sensitive uses within this Employment area negatively impacts its viability. While the area has evolved to a predominance of retail, the Employment area of south 401 should be retained unencumbered by new sensitive uses. This site’s employment importance and potential is heighted by its designation as a Provincially Significant Employment Zone (“PSEZ”). The railway should remain the primary boundary between residential and employment uses. The townhouse development south of Oak is isolated and unconnected and does not warrant further intrusion of Residential in the area via this site. Similar arguments apply to the residential towers west of Weston which predate the City’s current land use structure. The availability of community services has not been fully assessed as being sufficient to support a development of some 500 units.

ANALYSIS and FINDINGS

51The review of evidence and resulting findings are organized by general subject areas intended to combine and condense the extensive Issues List (“IL”) to avoid duplication while also ensuring that all main issues are addressed. Should a specific matter from the IL appear to not be addressed, the Tribunal is satisfied that such is generally covered by these findings.

Area and Policy Context

52On the planning evidence, as supported by the technical evidence, the Tribunal finds that the conversion question turns on the evolution and nature of the area within which the site exists. The detailed policy analysis is reviewed later, but in overview, the Tribunal finds this area to comprise a mix of retail, service and residential functions (“mixed-use”) with limited remaining traditional employment uses of, for example, manufacturing or warehousing.

53When considering this conversion, certain City witnesses consider the affected area to include the entire Employment designation to the north and south of 401, while others limit their review to the immediate area of south 401 to the west of the railway. The Appellant’s witnesses consider this area completely separated from the Employment area of north 401, and also refer to a broader area to the south when considering transit and other community or social services.

54The Tribunal takes a somewhat “middle” approach from these Party positions, and finds it appropriate to base the decision on the immediate surroundings of the site, bounded by: 401 to the north; land uses abutting the east side of the railway; land uses abutting the south side of Oak; and land uses abutting the west side of Weston.

55If one is confined, for example, by the area originally defined by Mr. Romano, being the 401 – railway – Oak – Weston block, then clearly this conversion introduces and imposes a residential use into a contiguous and uninterrupted Employment area. However, the Tribunal finds that the community of interest and relevance is broader and must consider surrounding uses as advanced by Mr. Volpentesta. Mr. Romano, in cross-examination, did concede that uses to the south of Oak could also be included when assessing the area context, but maintained that the railway represents a hard eastern boundary.

56A different picture emerges when surrounding uses are considered, akin to a “checker-board” of land uses. Take the lands to the south of Oak beginning just west of Weston: residential towers in Apartment Neighbourhoods; then automobile service in General Employment; then residential townhouses in Neighbourhoods; then Visioneering manufacturing in Core Employment; and beyond that, low density residential in Neighbourhoods. A similar alternating pattern is evident heading north on the east side of the railway with: Visioneering and its vacant property as Core Employment; then townhouses and detached dwellings in Neighbourhoods, including two parks; followed by Core Employment abutting 401. Adding to the mix, across Weston from Superstore and Crossroads are small-scale retail and service uses in a Mixed Use designation along this arterial street.

57Focussing on the boundaries of this site only, one sees a similar mix of land uses: residential to the south and east; vacant employment land to the east, with Visioneering south of that; and retail uses to the west and north.

58The south 401 area is not only the southern edge of the larger Employment area extending to the north, it is also separated from north 401 by the 401 itself, and has largely converted over time from traditional or primary employment uses to either retail/service or residential uses. The functional presence and dominance of retail uses in this designated Employment area is relevant to this consideration for conversion based on the manner in which the GP addresses retail uses.

59First, the GP defines Employment Area as follows (Ex. 1 p. 38):

Employment Area

Areas designated in an official plan for clusters of business and economic activities including, but not limited to, manufacturing, warehousing, offices, and associated retail and ancillary facilities.

60The Tribunal accepts the Appellant’s position that “associated retail” is listed as opposed to stand-alone retail. Associated retail would include the sale of products manufactured at the same location, or a small retail outlet serving the needs of area workers. It does not list outright retail functions as composing part of Employment Areas, and is therefore interpreted as implying a certain hierarchy, with primary uses comprising “manufacturing, warehousing, office” and secondary uses being “associated retail and ancillary facilities.”

61The City is correct that the definition is not exhaustive, jobs in retail uses make them employment uses, and retail uses are permitted in the OP’s General Employment designation. However, the City concurs that new major retail uses would be considered conversions and would be subject to the tests in s. 2.2.6.5 of the GP.

62The Tribunal finds that the Superstore and Crossroads developments, while permitted in General Employment by their pre-existence, represent lower priority Employment uses on a substantial portion of the south 401 area, and if proposed today, would be subject to the full conversion criteria of the GP. This finding is supported by Mr. Volpentesta’s evidence when he explained under cross-examination how these properties are “essentially already converted.” Not in conflict with such conclusion is the current identification of Provincially Significant Employment Zones (“PSEZ”) that, except for a small southerly portion of the Superstore property, does not include the Superstore and Crossroads properties as provincially significant (Ex. 8, p. 14).

63Thus, the Tribunal finds that the south 401 area is both physically and functionally a separated and lower priority employment area, as compared to north 401 consisting of an extensive area of core employment uses focussing on manufacturing, warehousing and distribution. In this site and area context, the Tribunal finds that the proposed residential uses would not be unusual or unprecedented amidst these surroundings. In such planning context, the detailed statutory requirements will be examined.

Conversion Criteria

64Central to the question of conversion is s. 2.2.6.5 of the 2006 GP which provided a focus for evidence and submissions. The planning witnesses generally agree that the 2020 PPS defers to the requirements of the GP, which “take precedence over the policies of the PPS to the extent of any conflict” or which “address the same, similar, related or overlapping matters” (Ex. 2 p. 54). While the PPS policies on conversion appear not to conflict with the GP, they do address the same subject matter, resulting in the proper focus here on the GP requirements for conversion requests, as set out below (Ex. 1, p. 33).

2.2.6.5. Municipalities may permit conversion of lands within employment areas, to non-employment uses, only through a municipal comprehensive review where it has been demonstrated that -

a) there is a need for the conversion

b) the municipality will meet the employment forecasts allocated to the municipality pursuant to this Plan

c) the conversion will not adversely affect the overall viability of the employment area, and achievement of the intensification target, density targets, and other policies of this Plan

d) there is existing or planned infrastructure to accommodate the proposed conversion

e) the lands are not required over the long term for the employment purposes for which they are designated

f) cross-jurisdictional issues have been considered.

For the purposes of this policy, major retail uses are considered non-employment uses.

65The Parties agree that OPA 231 represents the culmination of a MCR, being the necessary precondition enabling the consideration of a conversion under the GP. The Parties agree that criterion d) is satisfied given that infrastructure is considered capable of accommodating residential uses, and also agree that no cross-jurisdictional issues arise under criterion f).

66At issue are criteria a) need, b) forecasts, c) viability and e) long term.

Need

67The Parties agree that the “need for a conversion” may consider both numerical and non-numerical planning objectives. Numerically, there is no dispute that the GP’s forecast for the City’s population can be achieved through the various OP designations permitting residential intensification. This residential proposal is not needed to enable the City to house its forecasted population within the planning horizon of 2031.

68The Parties disagree on the application of policy considerations related to need. Mr. Volpentesta refers to the City’s own planning report that refers to the effect of “achieving other planning objectives” when considering the need for conversions. He opines that the provincial and City objectives for residential intensification are appropriate considerations here given the mixed-use area. Mr. Volpentesta also finds support in the City’s endorsement of numerous conversion requests through OPA 231 which considered remnant, isolated or incompatible sites for employment uses. He views this site as similar, given its long-standing vacancy consistent with the evolution of this area away from traditional employment uses. Mr. Annand notes the complementary economic relationship between residential development and the existing retail functions.

69The City disagrees that a need exists for the conversion. Ms. Heydorn explains that, in keeping with the GP and PPS, the OP directs residential growth to Centres and Avenues while ensuring that Employment areas remain unencumbered from potentially incompatible uses. Opposite the need for this conversion are the City’s economic development objectives of retaining employment areas for the long-term to encourage and assure investment. Employment areas represent a finite resource warranting protection for present and future use, intensification of jobs, and future re-use as needs evolve. Ms. Heydorn opines that the need for residential uses is further diminished by their potential incompatibility with adjacent employment uses. She does not consider this site as a remnant or isolated property in employment terms.

70On the requirement for need, the Tribunal finds that the area context lends support for a conversion, in keeping with the kinds of considerations given by the City to other sites. The once traditional employment uses at south 401 have long evolved to retail and services for residents of the area and beyond. The mix of uses, including a range of low-rise to high-rise residential buildings in the immediate area, supports the need criterion through the provincial planning objectives for the contextually appropriate and efficient use of land, including residential intensification. Also tempering the requirement for need is Ms. Heydorn and Mr. Romano’s concurrence that south 401 has evolved to a retail function, separate from and unlike north 401 where traditional and intensive employment uses predominate.

71As such, the Tribunal finds there is a reasonable need for the conversion, sufficient to satisfy this criterion of the GP. This area has evolved and continues to evolve to a mix of uses and away from traditional employment functions. Somewhat aligned with Ms. Heydorn’s emphasis that Mixed Use Areas are intended to absorb most new housing and commerce, this area, although not so designated, replicates such areas and offers similar potential. Indeed the west side of Weston, forming part of this area and just across the Superstore property from this site, is designated as Mixed Use. Also, using the City’s consideration of remnant properties, the evolution to residential and non-traditional employment uses here results in this site representing a somewhat remnant Employment property. Within all of the foregoing context, the continued evolution of uses appropriate for the area, in this case, Residential, can be viewed as needed.

Employment Forecast

72Under the GP, a conversion must not prevent the City from meeting its employment forecast. The Parties agree that sufficient opportunity exists within existing designations permitting employment, and through further intensification of same, to meet the GP’s employment forecast to 2031. The City does not contest the Appellant’s evidence that lands designated as Employment account for approximately 25% of total jobs within Toronto and, after accounting for the City’s agreement to certain conversion requests, 97% of the Employment lands will remain under OPA 231.

73The Tribunal finds that the City will meet its employment forecast as required by the GP.

Viability

74The evidence on criterion c) focusses on whether the conversion will adversely affect the overall viability of the employment area. The criterion goes on to require achievement of the GP’s “intensification target, density targets, and other policies.” The intensification and density targets are not analyzed nor at issue given that they apply to residential development, and the Parties agree that, while this conversion is not necessary for the City to satisfy these requirements, it will support and not detract from achieving intensification and density targets. Regarding “other policies” of the GP, the witnesses refer to those when supporting their position.

75On the matter of viability, Mr. Volpentesta contends, in part relying on the evidence of Mr. Annand, that this area has already converted to essentially non-employment uses and therefore this conversion has no effect on the overall viability of the extensive Employment lands at north 401 or elsewhere. With only one remaining manufacturing use in south 401, he concludes there is no cluster of employment uses to protect. Although retail uses are permitted within General Employment areas, the GP considers major retail as non-employment uses for the purposes of considering conversions. As such, Mr. Volpentesta considers this conversion to abut lands to the west and north that are essentially already converted as viewed by the GP.

76In contrast, the City’s planning witnesses, including Mr. Premru, posit that this area contains a traditional employment use, could contain others on this site and on the vacant Core Employment property to the east, and in addition, the retail lands could revert to more intensive employment uses in future. As a result, this conversion would “adversely affect the overall viability of the employment area” and therefore lacks conformity with the GP.

77While arriving at different recommendations, Mr. Reusing and Mr. Tomaselli acknowledge that residential and retail uses can co-exist successfully with mitigation measures implemented as necessary for the site and area. Related to viability, Mr. Tomaselli emphasizes that future compliance with noise and vibration regulations rests with the employment use, once the residential use is established.

78Again with reference to the area context reviewed earlier, the Tribunal finds for the Appellant on this criterion of viability. The dominance of retail and service functions on the Superstore and Crossroads sites reduces the weight of this test for conversion. It already functions separate and apart from north 401. This conversion does not adversely affect the overall viability of the employment area, whether that be within the immediate area of south 401 alone, or in connection with north 401.

79First, the GP definition of “employment area” refers to “associated retail” as a permitted component land use. Consistent with the Appellant’s case, the Tribunal takes this terminology to mean retail uses that are connected or related to a main employment use such as “manufacturing, warehousing, offices” as noted in the definition. Such is not the case here, where the large employment properties to the north and west of the site are used entirely for large-format “big box” retail stores, smaller retail outlets, and a variety of consumer service functions. Even the very recently established e-commerce outlet at Crossroads, noted by Mr. Romano, may represent the evolving retail market but remains a retail/service use unassociated with a main employment use per the GP definition.

80Second, the GP requires major retail uses to be considered non-employment uses for the purpose of considering conversions. It is interesting that this sentence is absent a section number and is simply added to the end of s. 2.2.6.5. Presumably, this statement intends that when a major retail use is proposed on Employment lands, it must be considered a conversion and must comply with the applicable criteria. This interpretation was shared by the planning evidence.

81However, the statement may have further applicability in this case, as implied by Mr. Volpentesta. Here, when considering a conversion request for Residential on this site, certain adjacent lands constitute major retail uses, and those uses “are considered non-employment uses.” In other words, this conversion could be viewed as abutting non-employment uses to the north and west. Tempering this interpretation is the planning evidence on both sides, generally agreeing that retail uses do functionally constitute employment uses, and the General Employment designation on these properties continues to permit traditional employment uses such as manufacturing. However, the Tribunal does find that the GP’s treatment of major retail, requiring it to satisfy the same rigour of conversion criteria as this site, is a further example of constituting a lower priority of use within employment areas. As a result, the Tribunal considers the well-established transition of this area to retail to support a finding of no adverse affect on the overall viability of the employment area.

82On the effects of disturbance and noise on overall viability, the Tribunal accepts the engineering evidence that retail and residential uses can and do co-locate in compliance with regulations through appropriate mitigation in design, equipment and structures.

83For the vacant Employment property to the east and Visioneering to the southeast of the site, the Tribunal finds no adverse affect on overall viability given the presence of adjacent, established residential neighbourhoods. Together, these properties are virtually surrounded by Residential areas which already impose compatibility requirements on existing or proposed Employment uses. The witnesses agree that Visioneering is a highly successful manufacturer that operates in the absence of conflict with its residential neighbours.

84While some refer to the vacant Employment property north of Oak as Visioneering’s “buffer land,” the Tribunal considers it awaiting Employment development for which viability must be assessed. The conversion of 8 Oak will add a residential use to the west of this vacant Employment property but with little effect on the NPC-300 and Guideline D-6 compliance requirements. The west end of the Employment property is already within the recommended setback area from existing residential uses to the north and southwest for all classes of employment uses. The proposed distance from proposed dwellings at 8 Oak, with the intervening railway, results in very little or no effect on the compliance requirements of future Employment uses. The Tribunal finds such result to not detrimentally affect the viability of the vacant parcel.

85All told, the Tribunal finds that, given the transition of this area to primarily retail functions, its distinction and separation from the clusters of traditional employment uses of north 401, and the reasonable ability to mitigate incompatibilities and comply with noise or vibration requirements, this conversion will not adversely affect the overall viability of the Employment area.

86Section 2.2.6.5(c) of the GP also requires that the conversion not adversely affect “other policies” of the GP. The planning witnesses refer to matters in s. 2.2.2 including a) and b) intensification areas, d), g) and h) pedestrian-friendly and complete communities, and f) sufficient land for employment. Reference was also made to s. 2.2.6 for Employment Lands, including subsections: 1 - adequate supply; 2 - promoting economic development and competitiveness through a) a mix of employment uses, b) a range of suitable sites for now and in future, c) preserving employment areas; and 9 - preserve lands near highway interchanges and airports for manufacturing, warehousing and associated uses.

87Again, the Tribunal does not find that this conversion adversely affects these policy intentions. With reference to the GP’s definition of intensification areas, although south 401 is not so designated in the OP, this site does represent an “other major opportunity” for infill and redevelopment given the area’s long established transition to retail and residential functions, and sufficient Employment lands remain to meet the forecasted jobs target. As advanced by the Appellant’s witnesses, the proposed residential uses do provide jobs, primarily in the retirement home but also through the increasing trend of work-from-home jobs.

88These policies continue to draw attention and priority to the main employment uses of manufacturing, warehousing, offices, and “associated retail” as defined under “Employment Area,” again underscoring that this area has transitioned away from core employment uses to a major retail focus along with residential uses within and adjacent to south 401. This conversion fits within the area context by adding a substantial residential use in support of the retail functions. Given this transition and adjacent residential uses, this conversion does not result in losing a highly suitable site for traditional employment uses. While the Tribunal concurs with the City that a manufacturing use could locate and succeed compatibly on this site, as exemplified by nearby Visioneering, the area context leads to the conclusion that Residential is a better fit here without offending the protective “other policies” of the GP.

Long Term

89A similar rationale as above applies to the GP conversion test of demonstrating that the site is not required over the long term for employment purposes. The long term is a long time, and the Tribunal finds on the Appellant’s evidence, that the reasonable application of this term is influenced by the site’s context. The City’s position that virtually all Employment lands are required for the future given their fixed amount without potential of more being designated, is somewhat tempered by the City’s agreement that some sites are suitable for conversion based on local circumstances.

90As noted earlier, the GP is reasonably interpreted as giving priority and emphasis to manufacturing and warehousing, with different treatment of major retail uses. For purposes of conversion, the latter are considered non-employment uses. This direction in the GP somewhat reduces the strength of the City’s otherwise valid position that retail is a permitted use in the General Employment designation. While retail is permitted by the OP, the major retail in south 401 would today require a conversion. Given the transition of south 401 to a mix of uses, with a focus on retail and service, this site is considered as not required over the long term for “employment purposes.”

Provincial Policy Statement

91The planning witnesses referred to the directions of the PPS in support of their positions while recognizing that the GP prevails over PPS policies which overlap or conflict with the GP. In s. 1.1.1, healthy communities are to be sustained by such measures as: a) land use patterns which protect the public financial well-being; b) accommodating a range of mix of residential types, including multi-unit buildings and housing for older persons; e) cost-effective development patterns that support transit and minimize land consumption; and f) improving accessibility for persons with disabilities and older persons.

92The broader area’s community and social services are addressed through the Appellant’s study (Ex. 3, p. 87). The Tribunal finds that the evidence demonstrates the sufficiency of area schools, libraries, community centres, places of worship, and parkland to accommodate these new residential units. Public transit is also available with connections to rapid transit, while access to the nearby wide range of retail uses is anticipated to be primarily on person-powered transport (pedestrian, bicycle, wheelchair, etc.).

93The City stresses the relevance of s. 1.2.6 addressing land use compatibility between major facilities, such as manufacturing or rail corridors, and sensitive land uses, such as residential and associated amenity areas.

1.2.6.1 Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.

94The City argues that adverse effects shall be avoided, and only if avoidance is not possible, that minimization and mitigation may be pursued. The City stresses that avoidance is possible here by denying the conversion. The retail uses constitute noise generators that require addressing when received by residential uses. The Appellant submits that the PPS defines “major facilities” with reference to such uses as airports, manufacturing, and railways. The Appellant concludes that this site imposes no effect on either Visioneering or the vacant Employment land to the east, and the retail uses to the north and east do not constitute major facilities.

95Again, recognizing the validity in both Parties’ positions, the Tribunal finds for the Appellant in the context of this site, with reference to the PPS directions in their entirety, including its directions for integrated mixed uses, walkable communities, and protecting employment areas. The Tribunal finds the PPS to reflect the GP in the manner that it addresses retail uses relative to traditional employment uses. For example, the PPS references “manufacturing uses” in its definition of “major facilities” but does not reference retail (Ex. 2, p. 96). Also, the PPS definition of “employment area” is identical to that of the GP, referencing “associated retail” with the same implications for this dispute as described earlier under the GP.

96The Parties agree that the residential use proposed on this site is a “sensitive land use” which must address the potential adverse effects from adjacent and area-wide noise in accordance with provincial guidelines. The Tribunal does not find this fact to be contrary to s. 1.2.6.1 of the PPS, given that retail uses comprise the adjacent use with which noise compliance is required, and virtually no effect arises on the vacant Employment property to the east, given its separation from this site by the railway and the existing surrounding residential uses.

97The City argues that, because the retail uses require mitigation from the proposed sensitive use, they constitute a “major facility” which must be protected by preventing this conversion. Consistent with the Appellant’s response, the Tribunal finds that, while mitigation is necessary, retail uses are not the primary employment uses that the PPS intends to protect, and the PPS actually encourages such mixed-use development in pursuit of complete communities. In such context, the Tribunal finds that “avoidance is not possible” per s. 1.2.6.1, which then enables the mitigation of adverse effects.

98In relation to PSEZ, s. 1.3.2.4 of the PPS enables permission for a conversion through a MCR subject to requirements of protection and need as covered by the GP here. PSEZ is not invoked as a review consideration except where conversions are considered outside of a MCR, which is not the case here. Thus, the existence of this site now designated as PSEZ is not a barrier to this conversion. The applicable GP here predates the PSEZ mapping, and the PPS enables consideration of a conversion during a MCR, even within PSEZ areas. While the Tribunal accepts the City’s position that this appeal site’s subsequent designation as PSEZ supports its potential contribution to retaining employment lands for future use, the PSEZ itself is not a barrier to conversion on this appeal. The site and area context result in the finding here, similar to the GP findings, that the PPS requirements for need and long-term retention of employment areas are satisfied.

99Like the GP, s. 1.3.2.2 of the PPS promotes the review of employment areas during a MCR, and separating industrial areas from sensitive uses and vice versa. This appeal results in such review relative to this site, and for the reasons given throughout this Decision, a conversion here is found to be consistent with the PPS.

Summary

100In summary, as presented and argued by the Parties respectively, a conversion here can be seen as resulting in both negative and positive effects. On the down-side, it: reduces the amount of remaining Employment land in the City; introduces a residential use in the Employment block west of the railway and north of Oak; imposes necessary mitigation measures on an existing retail use; and potentially imposes the threat of restrictions on future industrial uses on adjoining lands. On the up-side, it: represents residential intensification within an existing mixed-use area; supports the retail and service commercial area with convenient pedestrian proximity; creates public open space available to the area’s residents and workers alike; and produces long-term employment in the planned retirement home.

101While not utilized in arriving at this Decision, it is interesting to note, as implied by the Appellant, that no area landowners appear to oppose this conversion request. The Superstore remained as a Participant, having been satisfied by its agreement with the Appellant related to concept design and implementing various mitigation components. None of Crossroads, Visioneering, nor the owner of the vacant Employment land to the east of the site, participated in this hearing. Similarly, no objections were heard from residential owners in the area, from either the townhouse development across Oak, or from the low-rise neighbourhood across the railway to east.

102Although the absence of opposition does not necessarily equate to support, it does suggest a likelihood of community understanding of the area’s transition, where retail and service functions can co-exist acceptably with residential uses. Further, it may suggest that the Appellant’s development plan presents reasonable transitions in height and density relative to neighbouring residential areas. At the very least, the absence of overt opposition to the conversion is seen to align with the Tribunal’s findings here after weighing all of the evidence.

103For all of the reasons outlined, this conversion is found to have regard for the provincial interests of s. 2 of the Act, including: (h) orderly development; (j) a full range of housing; (k) adequate provision of employment; (l) financial and economic well-being; (o) public health and safety; and (p) location of growth and development. The conversion conforms with the GP, including the specific requirements of s. 2.2.6.5 including need, employment forecast, viability, infrastructure, and long-term requirements. The conversion is also found to be consistent with the PPS, including its direction for efficient land use patterns, a range and mix of housing, land use compatibility, protecting employment areas, and compact, mixed use development. The City’s related decisions raised in evidence, including its approval or denial of requests for conversion under OPA 231, have been duly considered in making this Decision.

104The Tribunal finds that this conversion through OPA 231 satisfies all statutory tests and represents good planning in the public interest. The appeal to OPA 231 is allowed.

Site-Specific OPA and ZBA

105The Parties agree that should the Tribunal find in favour of conversion, the OPA and ZBA warrant further discussion to arrive at suitable policies and provisions. With the OPA 231 appeal addressing the question of conversion, the Tribunal does not consider the site-specific OPA to constitute a conversion request. Rather, the OPA will establish the appropriate designation and any required site-specific policies for this site which has already achieved its conversion. The same applies to the ZBA.

106With the extensive and detailed evidence received, the Tribunal accepts, in part, the Appellant’s request for preliminary direction on key issues. However, given that the site design will continue to evolve following this Decision on the conversion, the following observations are preliminary only, not to be considered binding or prescriptive determinations in relation to the further hearing of these matters on their merits, and will be subject to a final consideration of an evidence-based settlement or a hearing on the merits of remaining issues.

Designation and Zone

107The Appellant’s proposed OP designation of Apartment Neighbourhoods seems appropriate for the intended development and utilizes the same designation as the residential towers to the west of the Superstore property. From the evidence, the Tribunal wonders whether a Mixed Use designation would be appropriate on this site, given its existence in similar contexts, including along the west side of Weston. There may be reasons, not addressed in the hearing to date, for considering a Mixed Use designation here. While either designation is not likely to change the nature of the proposed residential uses, Mr. Volpentesta is open to considering other designations and the City may prefer one designation over the other.

108The Parties are encouraged to arrive at a suitable designation and corresponding zone, which may contain provisions, if warranted, to: ensure the establishment of the retirement residence; enable home-based businesses in the townhouses, if desired, as exist in the townhouses across Oak; and address any necessary site-specific zone provisions.

Site Layout

109The concept plan is found to be reasonable, subject to various refinements to be addressed either in the ZBA or later under site plan control, including: noise compliance; enhanced landscaping along streets and the internal drive in accordance with City guidelines; facade features for the corner townhouse unit at Oak and Knob Hill; features to enhance the enjoyment and function of the townhouse rear decks; and height, as reviewed next.

110The Tribunal finds that the proposed heights of buildings appear suitable for the site and area. The three-storey townhouses reflect the same across Oak and create a gentle transition in height from Oak to the mid-rise apartment building behind the townhouses. The proposed eight-storey apartment buildings seem suitable and appropriate for the area given the potential height of Employment buildings to the east and west, and the substantial setback from the residential neighbourhood to the east with the intervening railway. The six-storey retirement home will provide a suitable transition towards the lower plaza buildings at Crossroads.

111The Tribunal accepts that the proposed stepbacks for the upper floors of the six- and eight-storey buildings respect the intentions of the City’s Mid-Rise Guidelines, given that the proposed landscaping between Knob Hill and the buildings will appear as part of the public street such that the 1:1 ratio is visually achieved. However, the Tribunal encourages the Appellant to ensure that the stepbacks are deep enough to enhance the perception of a lower building as viewed from the street and from within the public park.

Private Drive

112The private drive is found to not be prohibited by the OP and to legitimately result in maximizing below-grade parking at one level, with the beneficial effect of lowering purchase and maintenance costs for future owners. The railway to the east and the orientation of area streets result in no need to establish new through-connections. The deficiencies identified by the City may be addressed through such measures as: additional visitor surface parking spaces where appropriate; more and wider sidewalks; suitable solutions for necessary loading bays; and enhanced tree-planting along the drive.

Public Park

113The park location is considered appropriate for the site and broader area. Being framed by the apartments to the north and south will ensure “eyes on the park” to enhance its use and safety. The park will be visible and available, not just to area residents, but also to shoppers, workers and visitors.

114The City prefers that the park abut the Oak – Knob Hill intersection to enhance visibility and to avoid the shadow of buildings. While the Tribunal agrees that such location could also be suitable, it raises potential issues of safety and street noise, when compared to the proposed location between the apartments. While shadows would be eliminated with a corner location, the Tribunal considers that the shadow from the south apartment building is not unacceptable. At the spring and fall equinoxes, less than half of the park area at any given time will be shadowed, with such area becoming progressively less up to the summer solstice, and then increasing again towards fall. The Appellant is encouraged to further reduce shadowing by enhancing the stepback of the park-facing upper floors of the south apartment building.

115Public pedestrian access to the park should be ensured through appropriate site plan measures, including from Oak at the site’s southeast corner.

Railway

116The Appellant fully acknowledges the need to address noise and vibration emissions from the railway through the use of setbacks, berming, landscaping, and structural noise barriers. Similar compatibility has been achieved in the existing residential developments immediately east and south of the site which also abut the railway.

Noise Classification

117The Tribunal agrees with the City that insufficient information is available from the hearing for a final Decision on the classification to be applied to this site under NPC-300. The Tribunal prefers to leave this determination with the City given the technical experts’ general agreement that whichever Class is eventually allocated, acoustical compliance is achievable through source/receiver mitigation, which the Appellant has agreed to provide. The Tribunal anticipates that the Parties will reach a settlement on the noise classification and resulting requirements, including through a subsequent site plan application, but like other matters remaining at issue, may address unresolved matters at the next phase of hearing on these appeals.

INTERIM ORDER

118As an Interim Order, the Tribunal Orders that the appeal of OPA 231 is allowed in part, and Orders that a modification to OPA 231 will be approved for the conversion from the General Employment Areas designation in the Official Plan for the City of Toronto to a designation permitting residential uses on lands municipally identified as 8 Oak Street, City of Toronto.

119For the next phase of hearing on these appeals, the Parties are directed to consider the Tribunal’s preliminary, non-binding observations on the site-specific OPA and ZBA, and to finalize those documents for approval on settlement, or for a further hearing on remaining issues.

120Within six months of this Decision’s date of issuance, the Appellant is directed to either seek a final Order on the OPA and ZBA on consent and supported by a planning affidavit, or provide an update on the status of the appeals, any remaining unresolved issues, and the need for a further CMC and/or hearing on the merits.

121This Member will remain seized for these appeals and may be contacted through the Case Coordinator should issues arise.

“S. Tousaw”

S. TOUSAW

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.