Verdiroc Developments Corp. v. Toronto (City), 2021 CanLII 51744

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2021

CASE NO(S).: MM210004

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Subject: Site Plan

Referred by: Verdiroc Developments Corporation

Property Address/Description: 1744 Ellesmere Rd.

Municipality: City of Toronto

LPAT Case No.: MM210004

LPAT File No.: MM210004

LPAT Case Name: Verdiroc Developments Corp. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Tracey Herrington

Applicant: Verdiroc Developments Corporation

Subject: Minor Variance

Property Address/Description: 1744 Ellesmere Rd.

Variance from By-law: Scarborough District Employment Zoning By-law No. 24982

Municipality: City of Toronto

Municipal File No.: A0200/20SC

LPAT Case No.: MM210004

LPAT File No.: MM210005

Heard: May 25, 2021 via video hearing

APPEARANCES:

Parties

Counsel/Representative*

Verdiroc Developments Corp.

David Bronskill/Matthew Lakatos-Hayward

City of Toronto

Laura Pinder

Tracey Herrington

Self-Represented*

DECISION AND INTERIM ORDER OF THE TRIBUNAL DELIVERED BY BRYAN W. TUCKEY

1The Tribunal conducted a hearing on two distinct and separate appeals both regarding properties (“subject site”) known municipally as 1744, 1750 and 1758 Ellesmere Road in the City of Toronto (“City”). The appeals are as follows:

1. an appeal by Tracey Herrington (“Appellant”) against the City’s Committee of Adjustment (“CoA”) approval of a Minor Variance request by Verdiroc Developments Corp. (“Applicant”) pursuant to s. 115 (14) of the City of Toronto Act, 2006; and

2. an appeal by the Applicant against the City’s failure to approve a Site Plan Application (“SPA”) pursuant to s. 114 (15) of the City of Toronto Act, 2006.

2Counsel for the Applicant, David Bronskill requested that the two “applications should be considered together to ensure that they are addressed efficiently and equitably”. The Tribunal agrees and the hearing is organized to first deal with the appeal to the CoA approved Minor Variances and second to “hear and determine the requirements including the provisions of any agreement required” respecting the SPA.

3There are three parties of record with respect to the Minor Variance appeal and two parties of record regarding the SPA appeal. Ms. Herrington noted she represented the North Bendale Community which is not a City registered ratepayer association. She does not have standing on the SPA matter but with consent of the parties remained on the video call to hear evidence provided by the Applicant.

4The parties called one land use planning witness. Janice Robinson is qualified as an expert in land use planning and gave evidence evaluating the proposed development (“proposal”) against relevant public policy. Exhibit 1 is the Document Book and Exhibit 2 is the Visual Reference Book

BACKGROUND

5The subject site has a relatively long history. The proposal before the Tribunal is to construct 242 affordable rental housing units with 87 parking spaces in a single building on the subject site. The unit breakdown is 10% three bedroom, 50% two bedroom and 40% one bedroom which exceeds the standards found in the City’s ‘Growing Up: Planning for Children in the New Vertical Communities’ guidelines. The proposal provides for approximately 794 square metres (“sq. m”) of outdoor and 485 sq. m of indoor amenity space both in excess of the City standard of 2 sq. m per residential unit for each amenity area.

6In 2010 the City reviewed an initial proposal to construct 150 affordable rental units on 1744 Ellesmere Road and 1,355 sq. m of commercial uses on 1750 and 1758 Elsmere Road. The 2010 proposal had:

a. approval under the City’s Open Door Affordable Rental Housing Program;

b. minor variances were approved to increase the number of residential units (150), increase the amount of commercial Gross Floor Area and establish the parking requirements for residential and commercial uses; and

c. a SPA is required and has been in process since 2010.

7The SPA has been recently revised to add an additional 92 affordable housing rental units for a total of 242 along with a complete series of revised site plan drawings. The Toronto Housing Secretariat has expressed its support of the additional rental units and the requested Minor Variances.

8In 2020, the CoA had before it two Minor Variances to consider both against performance standards found in Scarborough District Employment Zoning By-law No. 24982 (“ZBL”) being:

1. 242 dwelling units whereas the maximum number of dwelling units is 116 (150 approved by A0101/10SC); and

2. 87 parking spaces whereas the minimum number of parking spaces is 290 (minimum 54 approved by A0101/10SC).

The proposal meets all other performance standards relating to height, coverage, floor space index, density, setbacks, and massing.

9The CoA approved the Applicant’s 2020 Minor Variance application (File No. A0200/20SC) subject to seven conditions including: a revised SPA to secure Storm Water Management facilities and the provision of sufficient services to the subject site and confirmation the development has received City Council approval to extend the Open Door Affordable Rental Housing Program incentives to the additional 92 units and that the necessary agreements to ensure the operation of those units at affordable rents have been executed. A Notice of Decision was circulated on Monday October 19, 2020.

SITE AND AREA CONTEXT

10The subject site is located on the north side of Ellesmere Road east of Grangeway Avenue within the Scarborough Centre (“Centre”). It is a triangular shape with an area of 5,900 sq. m and a frontage of 120.75 metres (“m”) and is occupied by an existing dry cleaning establishment.

11The subject site is a short walking distance to the Scarborough Town Centre, a regional shopping centre containing a wide range of shops, services, dining and entertainment facilities as well as several other similar stand alone commercial and service facilities in the general area. The site is well served by both local and regional public transit and is within 500 m of the McCowan LRT station.

12The surrounding land use context finds: to the east retail uses and Sheridan Nurseries; to the north a TTC works yard and an approved high density mixed use development; to the west, the offices of Community Living Toronto; and to the south, across Ellesmere Road, an existing residential neighbourhood.

PROVINCIAL POLICY

13Ms. Robison’s review of provincial policy began with s. 2 of the Planning Act noting that the City and Tribunal ‘shall have regard to’ matters of provincial interest. Regarding this matter, she made reference to provincial interest relating to orderly development of safe and heathy communities, accessibility for persons with disabilities, the adequate provision of a full range of housing, including affordable housing, the coordination of planning activities of public bodies, the appropriate location of growth and development, promotion of sustainable development, and the promotion and design of a high quality built form.

14Ms. Robinson outlined the relevant policies of the 2020 Provincial Policy Statement (“2020 PPS”) being:

a. promoting efficient development and land use patterns;

b. accommodating an appropriate affordable and market-based range and mix of residential units;

c. the integration of land use planning, growth management, transit supportive development;

d. the efficient use of land and infrastructure;

e. support active transportation and be transit supportive;

f. identify appropriate areas for intensification with appropriate development standards;

g. provide for an appropriate range and mix of housing options and densities;

h. directing development of new housing to locations that have an appropriate level of infrastructure and public service facilities; and

i. establishing development standards which minimize the cost of housing and facilitating compact form.

15Ms. Robinson gave evidence with respect to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) as amended. She made special note the subject site is located in a defined Urban Growth Centre which Growth Plan policy intends to be the focal point for major population and employment growth and accommodate and support the transit both at a regional an local level (s. 2.2.3). Other relevant policy considerations include:

a. support the achievement of complete communities that have a diverse mix of land uses and mix of housing options with convenient access to transit facilities;

b. give priority to intensification and higher densities in strategic locations to make efficient use of land, infrastructure and transit (s. 2.2.6);

c. provide a desirable and appropriate form of infill development within the delineated built up area (s. 2.2.2); and

d. the integration of infrastructure planning, land use planning and infrastructure investment (including Transportation system planning) will be coordinated (s. 3.2.1 and 3.2.2).

16In Ms. Robinson’s professional opinion, the proposal has appropriate regard to the matters of provincial interest found in s. 2 of the Planning Act, is consistent with the 2020 PPS, and conforms to the Growth Plan.

MINOR VARIANCE APPEALS

Appellant Testimony

17Ms. Herrington is the sole appellant of the approval of the Minor Variance by the City’s CoA. It is worthy of note that she has been subject to several personal challenges over the last number of months but is able to be a full and competent participant in these proceedings. She lives in what is commonly known as the North Bendale Community located south of the proposal. The Appellant called no land use planning or transportation witnesses to give evidence but did provide testimony to assist the Tribunal.

18The Appellant noted the considerable change in the area. She stated that the notice for the Minor Variance application should have been greater considering the size and scale of the proposal. Therefore only a few residents in the area had the opportunity to voice their opinion and give feedback at the CoA hearing. She outlined that the major concerns of area residents with respect to the proposal are as follows:

a. the proposed density described in the application as the number of residential units;

b. the need to understand the rationale for the parking variance which she felt was excessive and therefore the proposal does not enough parking on site for the residents of the rental units. Overflow parking could find its way to the neighbourhood’s local streets;

c. the need for traffic and parking requirements to be put into place by the City in the greater neighbourhood. There is a school near the subject site and parking, speed reductions and traffic calming measures are appropriate;

d. why there are no examples or ‘proxy sites’ used to reality check the proposed parking standards. The City offered no basis for the parking standard approved by the CoA; and

e. the size and scale of the proposal merits a more robust community discussion and involvement.

19Counsel for the Applicant or the City did not cross examine the Appellant’s testimony but did point out that as part of the Minor Variance application, a Parking Justification letter prepared by Lea Consulting (Exhibit 1 Tab 12) was provided and the minimum parking ratio of 0.36 spaces per residential unit is the same as determined in the 2010 Minor Variance decision.

MINOR VARIANCE TESTS

Maintain the General Intent of the Official Plan

20Evidence demonstrates that the City has a very robust, detailed and iterative planning policy regime made up of an official plan, secondary plans and guidelines to assist development proposals. Suffice to say, City plans have regard to, are consistent with or conform to provincial policy.

21The planner testified that the subject site is in the Scarborough Centre as illustrated on Map 2: Urban Structure of the City Official Plan (“City OP”) and is designated as Mixed Use Areas (Map 19 – Land Use Plan). These are land use designations where growth and development is planned to occur and permit a wide range of uses including residential apartment buildings. City OP growth management policies directs growth to areas that are well serviced by transit and existing road networks.

22The Scarborough Centre Secondary Plan (“SCSP”) specifically the McCowan Precinct also has a policy regime relevant to development on the subject site. The SCSP policy is an effort to achieve an urban focal point for the eastern reaches of the City and envisions a centre where a full range of urban uses will be permitted and concentrated to create a dynamic mixed use area. The SCSP plans are to accommodate approximately 40,000 residents and 23,000 jobs.

23Map 4 – Higher Order Transit Corridors of the Toronto OP illustrated that the subject site is well served by higher order and local transit. Map 5-3 – Street Network and Map 5-4 – Active Transportation Network found in the SCSP illustrate how the City has comprehensively planned for and accommodated all modes of transportation within the Scarborough Centre area.

24Ms. Robinson noted the proposed residential apartment building is permitted in the land use designation and applicable policies. Housing policies of the City OP encourage a wide range of housing related to form, tenure, and affordability be provided to meet the current and future needs of City residents. New housing is encouraged both through intensification and infill.

25In keeping with the above evidence, Ms. Robinson opined that the “proposed development and requested variances therefore meet the general intent and purpose of the Official Plan”

Maintain the General Intent and Purpose of the City’s ZBL

26The subject site is zoned City Centre Office – CCO and City Centre Residential -CCR in the former city of Scarborough Employment Districts By-law No. 24982 (Progress Employment District). The new City wide ZBL 569-2013 does not apply in this area. Performance standards in this zone relate to: Maximum area of certain commercial uses; a maximum of 116 dwelling units; street yard setbacks and a required parking standard. There are no provisions with respect to building height, density or gross floor area.

27A minor variance application to facilitate 150 affordable rental dwelling units and a parking standard equivalent to 0.36 spaces per unit (AO108/10SC) was approved by the CoA on December 1, 2010.

28Ms. Robinson stated that the subject site is within the CCR zone which permits residential apartment buildings. The minor variance speaks specifically to the number of dwelling units permitted which has been considered and increased by the CoA previously. Because the ZBL has no performance standard relating to height, coverage, gross floor area or Floor Space Index the proposal “is in compliance with those important measures of a development”.

29The planner noted that the applicable parking standards in the ZBL are extremely dated and in today’s context a much lower parking standard is applicable. In support of the application a parking letter completed by LEA Consulting (Exhibit 1 Tab 12) confirmed that if the City wide ZBL 569-2013 was in effect a much lower parking standard would be applied and the parking standard approved in 2010 by the CoA is maintained and reflected in the requested parking variance. Conclusions found in the LEA letter recommended that a combined minimum ratio of 0.36 spaces per unit for residents and visitors means a minimum parking supply of 87 spaces in required for the subject site.

30In the planner’s opinion the proposal “complies with the zones permitted uses, the height and density of the proposal are permitted, and the proposed parking ratio was approved in in the previous CoA decision, the general intent and purpose of the zoning by-law has been met.”

Be Desirable for the Appropriate Development or Use of the Land, Building or Structure

31Ms. Robinson noted that there is a considerable shortage of affordable rental housing in the City and the proposal would add 242 affordable rental units to that inventory. The Applicant is committed to seek City Council’s approval to extend Open Door incentives to the additional 92 units. She noted City Council support for the proposal as demonstrated by several letters from Councillors (Exhibit 1, Tab 17). The subject site is in the Scarborough Centre where population growth is planned for and encouraged and is zoned to permit residential uses as proposed.

32She opined that the requested minor variances are desirable for the appropriate development of the land.

Be Minor in Nature

33In her consideration of the proposal, Ms. Robinson evaluated both the proposal’s impacts and the numerical variances. She opined that there is no impact on the surrounding uses. The adjacent uses on the north side of Ellesmere Road are either non-residential or high density residential uses in zones where both are planned as-of-right. Shadow drawings for March and September demonstrate there are no shadow impacts on the residential homes on the south side of Ellesmere Road.

34The planner advised that lower parking ratio (supported by LEA Consulting) will adequately serve the needs of residents and the subject site is well served with public transit making the proposed parking ratio appropriate for the subject site.

35It is Ms. Robinson’s opinion that the increased number of units reflects the planned context of the area and the form and massing of the proposal is permitted by the ZBL. Therefore, the variance for the number of units is minor in nature and the proposed parking ratio is appropriate for the proposed use in this location.

36In conclusion Ms. Robinson opined that the proposed development complies or conforms to all relevant provincial planning documents; clearly meets all the four minor variance tests found in s. 45 (1) of the Planning Act; is good planning and in the public interest.

37The Tribunal agrees with Ms. Robinson’s opinion and notes that in the October 19, 2020 Notice of Decision on the Minor Variance Application, the CoA approval is subject to seven conditions. By dismissing the appeal, the Tribunal is concurring with, and agreeing, that all seven conditions are appropriate and must be met by the applicant in keeping with normal City practices.

SITE PLAN

38A previous SPA was submitted In August 2010 intended to implement the development contemplated at that time. The Applicant has requested to revise the existing SPA to implement the proposal being considered by the Tribunal. Tribunal authority under s. 41 (12.1) of the Planning Act is “…to hear and determine the matter in issue and determine the details of the plans or drawings and determine the requirements, including the provisions of any agreement required…”

39Mr. Lakatos – Hayward advised the Tribunal that the Applicant and the City are working collaboratively to refine the SPA. It has been advanced it to the point where the applicant has received from the City a Notice of Approval Conditions (“NOAC”). The NOAC with a Climans Green Liang Architects Inc. site plan drawing dated May 19, 2021 is marked as Exhibit 3. Therefore, there is a consensus between the Applicant and City regarding the plans, drawings, and required agreements.

40The Tribunal finds there is little adjudication required in relation to the SPA.

41Ms. Robinson described in detail the revised SPA and the drawings found in Exhibit 2 pages 8 – 33. She noted that there have been refinements to the SPA since the Exhibit was prepared as follows:

a. the tower height is now 15 storeys;

b. there is a change to the podium and step back of the building at the rear of the structure to transition better from the existing residential neighbourhood;

c. there is increased landscaping and outdoor amenity areas;

d. the access to the underground parking has been moved to the rear of the building; and

e. all bachelor units were removed from the proposed 242 units

42The planner stated the proposal is designed to have:

a. a minimum impact on and meets the 45 degree angular plane when measured to the neighbourhood to the south;

b. there is an appropriate transition to the lower scale and higher density uses;

c. the massing of the buildings are appropriate;

d. has regard to the City’s Mid Rise Guidelines; has integrated indoor and outdoor amenity areas;

e. has no shadowing impact on the neighbourhood to the south; and

f. the development is of an appropriate scale.

43Ms. Robinson went through the NOAC in detail illustrating it is a very complete, comprehensive and exhaustive series of drawings and conditions. It remains a work in progress but serves to illustrate the efforts both the City and Applicant have made to finalize the SPA. The NOAC does not constitute approval but does serve to delegate the issuing of approval to the appropriate staff once the owner has satisfied all of the pre-approval conditions.

44The NOAC has a series of 12 Pre-Approval Conditions which the owner is responsible to satisfy within two years. A Legal Services condition is to “enter into the City’s standard site plan agreement to and including registration of the site plan agreement on title to the subject lands by the City at the Owner’s expense.”

45Following the approval of the site plan the City has set out a total of 27 post approval conditions that will be incorporated into a site plan agreement. The conditions are very comprehensive and wide ranging in scope.

46Ms. Robinson opined that the SPA is complete and is suitable to implement the proposal on the subject site. The NOAC provides appropriate both pre and post approval conditions that are typically found in the City and are tailored to the subject site. The SPA represents good planning.

47Ms. Pinder advised the Tribunal that the City and the Applicant are aligned and very close to finalizing the NOAC. There may be minor revisions but the way the NOAC is structured any refinements are covered by the Pre-Approval Conditions.

48The Tribunal finds, regarding the revised SPA, that there is no substantive matter at issue, the plans and drawings are complete, and the provisions required in a site plan agreement are well articulated in manner that may be further implemented by the Applicant and the City.

FINDINGS

49The Tribunal finds that the City has well established planning policy for the area surrounding the subject site and followed a careful, complete and comprehensive planning review of the both the Minor Variance Application and revised SPA. The proposed development aligns with established policy principles by enhancing the areas compact urban form and making efficient use of land, infrastructure and existing transit resources. The built form is of a high quality design and is in keeping with the changing neighbourhood character and the massing of the building provides an appropriate transition to the existing neighbourhoods. It is indeed an appropriate location for the development of this nature.

50The application is local in context, but it is essential one recognizes the evolution provincial policy direction which identifies Urban Growth Centres as the focal point of residential and employment growth, encourages compact urban form within built up areas of urban municipalities, the efficient use of existing infrastructure, urban design that protects and enhances the neighbourhood and streetscape, and most importantly providing a policy context to encourage much needed housing supply. The Applicant is committed to construct an additional 242 purpose-built rental units which is an important addition to the rental housing supply in the City. Provincial policy has considerable weight in the Tribunals consideration of the proposal.

51The Tribunal accepts Ms. Robinson’s evidence and finds that the Minor Variance’s and SPA have appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the 2020 PPS and conforms to the Growth Plan 2019.

52The Tribunal gives weight to the CoA approval of this application. The CoA considered the application within the context of s. 45 (1) of the Act, reviewed staff reports, heard public comments and found the proposal met all necessary legislative tests. The Tribunal agrees with this conclusion.

53The Tribunal finds the proposed development and requested variances meets the four test of s. 45 (1) of the Planning Act and:

a. the general intent and purpose of the Official Plan is maintained;

b. the general intent and purpose of the zoning by-law is maintained;

c. the variances are considered desirable for the appropriate development of the land; and

d. the variances are minor in nature.

54The Tribunal finds that the seven conditions found in the October 19, 2020 Notice of Decision are appropriate and must be met by the Applicant in keeping with normal City practices. By dismissing the appeal, the Tribunal is concurring with and agreeing to all seven conditions.

55The Tribunal concurs with the opinion that the SPA is complete and is suitable to implement the proposal on the subject site. The NOAC represents appropriate both pre and post approval conditions that are typically found in the City and are tailored to the subject site. The SPA represents good planning.

56The Tribunal finds that the revised SPA presents no substantive matters remaining in issue, the plans and drawings are complete, and the provisions of a site plan agreement well articulated in manner that may be further implemented by the Applicant and the City.

57The Tribunal recognizes that, as Ms. Pinder stated, the Applicant and City are aligned and very close to finalizing the NOAC and any minor revisions may be addressed by refinements as the Pre-Approval Conditions are cleared by the City. The Tribunal is prepared to give approval in principle subject to conditions found in the Order.

58The Tribunal finds that the proposed development, as presented, is appropriate and a desirable addition to the area, represents good land use planning, is consistent or in conformity with and meets the objectives of all requisite public policy and is in the public interest.

ORDER

59Accordingly, the Tribunal Orders.

60THAT the appeal pursuant to s. 45(12) of the Planning Act is dismissed and the variances to By-law No. 24982 are authorized subject to the seven conditions found in the October 19, 2020 Notice of Decision of the Committtee of Adjustment determining the Applicant’s 2020 Minor Variance application (File No. A0200/20SC).

61THAT the Site Plan prepared by Climans Green Liang Architects Inc. dated May 19, 2021 is approved in principle and the Tribunal will withhold issuance of the Final Order for the Site Plan Approval until the Tribunal has been advised by the City Solicitor that the following conditions are met to the City’s satisfaction:

a. The Tribunal is provided with final versions of the Notice of Approval Conditions and associated plans and drawings, which have been amended, if necessary, to reflect any revisions arising out of satisfying the Pre-Approval Conditions;

b. The owner has satisfied all pre-approval conditions of the Notice of Approval Conditions, including the execution and registration of a Site Plan Agreement with the City and

c. The City will advise the Tribunal regarding the status of a) and b) no later than Tuesday November 30, 2021 if these conditions have not been met.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

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.