5400 Yonge Holdings Ltd. v. Toronto (City), 2021 CanLII 88693

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 14, 2021

CASE NO(S).: PL180686

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 5400 Yonge Holdings Ltd.

Subject: Request to amend the Official Plan - Refusal of request by the City of Toronto

Existing Designation: Mixed Use Areas

Proposed Designated: Mixed Use Areas

Purpose: To permit

Property Address/Description: 5400 Yonge Street and 15 Horsham Avenue

Municipality: City of Toronto

Approval Authority File No.: OPA 18

OLT Lead Case No.: PL180686

OLT Case No.: PL180686

OLT Case Name: 5400 Yonge Holdings Ltd. 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: 5400 Yonge Holdings Ltd.

Subject: Application amend former City of North York Zoning By-law 7625 - Refusal of Application by City of Toronto

Existing Zoning: General Commercial Zones (C1)

Proposed Zoning: Site Specific TBD

Purpose: To permit

Property Address/Description: 5400 Yonge Street and 15 Horsham Avenue

Municipality: City of Toronto

Municipality File No.: BL 7625

OLT Case No.: PL180686

OLT File No.: PL180687

Heard: October 7 – 9 and October 13 – 15, 2020 by video hearing

APPEARANCES:

Parties

Counsel

5400 Yonge Holdings Ltd.

D. Bronskill

City of Toronto

G. Szobel

Paul Antonacci and Linda Nakhjavan

S. O’Melia

Participant

Counsel

Bert Chen

A. Baker

DECISION OF THE TRIBUNAL DELIVERED BY G.C.P. BISHOP AND INTERIM ORDER OF THE TRIBUNAL

1This hearing is as a result of the failure of the Council for the City of Toronto (the “City”) to act on applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”), for a 32-storey mixed use building, filed by 5400 Yonge Holdings Ltd., (the “Applicant””) with respect to lands municipally know as 5400 Yonge Street and 15 Horsham Avenue (the “subject property”). These two properties are being consolidated and forms the basis of the overall lands subject to these appeals.

Local and Area Context

2The subject property is an amalgamation of two properties being 5400 Yonge Street, in the northeast corner of the block and 15 Horsham Avenue, in the northwest corner of the block.

3The subject property is located between two subway stations approximately 600 metres (“m”) to 700 m from the Finch subway station to the north and the North York Centre subway station to the south. The subject property is on the west side of Yonge Street and situated at the north end of a block bounded by Yonge Street on the east, Horsham Avenue along the north and a portion of the west and Canterbury Place along the southern portion of the west side of the subject property. The frontages are 47.5 m, 62 m and 34 m respectively, together with a total site area of approximately 3476.9 square metres (“sq m”).

4There is a five-story office building, with a three-storey wing, facing Yonge Street on the east portion of the subject property, and the 15 Horsham Avenue portion of the subject property has an existing three-story building with driveway access from Canterbury Place.

5There are four other properties contained within this block all south of the subject property. The west half of the block, south of the property, bounded by Canterbury Place and Churchill Avenue, is the site of a new development, under construction, for a proposed 30-storey building. In the east half of this block the first property directly south of the subject property is owned by Paul Antonacci and Linda Nakhjavan (the “Appellants”) and comprises of approximately 7.3 m of frontage along Yonge Street. The next property to the south is owned by Bert Chen, the only participant in this hearing event. Mr. Chen’s property is also contained within the east half of the block with approximately 10.6 m of frontage along Yonge Street. The balance of the lands, in the east half of the block, is a large parcel that extends down to Churchill Avenue and is the location of a church that was constructed roughly 15 years ago.

6Directly across the street, on the east side of Yonge Street, there is a building with a three-story podium with twin towers protruding from its base to a height of 28 storeys. To the north of the subject property is a 22-storey mixed use residential building, cornering on Yonge Street and Horsham Avenue and a four-story townhouse complex to the west of this residential building.

7The subject property is centralized roughly between Park Home Avenue and Empress Avenue, to the south, and Finch Avenue, to the north. This section of Yonge Street is still populated with smaller low-rise buildings on narrow lots together with a mix of high-rise development ranging from 14 to 42 stories in height. From the evidence presented, a number of these high rise, mixed use buildings were constructed prior to the introduction of the Tall Building Design Guidelines adopted in March of 2013. Many of these buildings have shorter podium heights and larger tower floor plates when compared to the Tall Building Design Guidelines.

Description of the Development

8The proposal before the Tribunal has a list of changes that occurred through revisions, in discussion with City staff, when compared to the original proposal submitted to the City. Although there are some minor adjustments required to the architectural plans, through testimony of the witnesses, the Tribunal was working with the version submitted on September 18, 2020, as illustrated in Exhibit 6.

9The proposed building is a 32-storey residential and mixed use building containing 533 dwelling units consisting of 122 one-bedroom units, 129 one-bedroom plus den units, 92 two-bedroom units and 57 three-bedroom units located in a combination of a portion of the “U” shaped, six-storey podium and the 26 storey tower.

10The podium itself is set back approximately 4.2 m from Yonge Street, 1.6 m along Horsham Avenue, and 1.5 m from the south lot line, in two locations. The podium is set back 18 m from the Canterbury Place frontage and 5 m from the eastern edge of the new public park.

11The original proposal included a point tower at the northeast corner of the subject property on the original “L” shaped podium which has now been amended to an articulated and curved rectangular shaped tower along the northern portion of the site abutting Horsham Avenue. The point tower is set back a further 5 m from the podium along Yonge Street and a further 3 m from the podium along Horsham Avenue and Canterbury Place.

12A new public park has been incorporated at the corner of Horsham Avenue and Canterbury Place with a total area of 347.69 sq m, representing 10% of the site area and Immediately east and south of the dedicated park is private outdoor landscaped open space.

13Within the ground floor level, having a height of 6.8 m for shops and indoor amenity space, there is a mezzanine level internal to these areas that supplies 407 bicycle parking spaces. The ground floor proposes retail space along Yonge Street, with direct access from the street. Principal access to the residential area faces Horsham Avenue continued by a wrap around indoor amenity space along Horsham Avenue and Canterbury Place, directly adjacent to the outdoor amenity space and the proposed public park.

14The overall gross floor area of the proposed building is approximately 30,380 sq m, split between 570 sq m of ground floor non-residential/retail space and 29,810 sq m of residential space. The original proposal contained approximately 1692 sq m of non-residential space, with a ground floor lobby and office space on the second floor. The Applicant has removed the office space but the City seeks the replacement of some of the office space, that exist in the two buildings on the subject lands having a cumulative total of 3207 sq m, of non-residential uses.

15Vehicular access to the building remains off Canterbury Place, generally running parallel to the south property line. The driveway access is covered by a combination of the six-story podium, when first entering the property, then continuing under an internal second story outdoor amenity space situated between the sections of six storey podiums that extend in a southerly direction, south of the point tower. This internal driveway, which allows two-way traffic, flows directly onto the ramp for the underground parking but also swings northerly to both the loading ramp and three temporary parking spaces in the location of a secondary entrance to the main lobby. The loading area and staging area are located between the indoor amenity space and the waste storage room for the building. Just outside the secondary entrance, there is a row of short-term bicycle parking spaces.

16The ramp to the underground parking leads to three underground levels consisting of a total of 212 parking spaces inclusive of 12 handicapped spaces. Of the total available parking there are 53 spaces dedicated to visitor and commercial uses.

17The Appellants have two issues. They own the property directly south of the subject property along Yonge Street and are concerned about the future redevelopment of their property without consideration of alternate access from the rear of the block as opposed to the existing access along Yonge Street. The position of their counsel is that a block study is required in advance of any approvals. It is their position that the alternate access would allow more intensification on their property, in line with the direction of intensification, as a general theme, throughout the various policy documents. The second issue relates to the proposed design of the podium and the effects this may have on any future potential construction on their property.

The Applications

18An OPA to the North York Centre Secondary Plan (“NYCSP”) and ZBA to the former City of North York Zoning By-law No. 7625 are required.

19The subject OPA application proposes to amend the NYCSP by:

1. Increasing the overall permitted height of the residential tower from 87 m to 100.82 m (to the top of the roof slab) and 106.82 m (to the top of the mechanical penthouse);

2. Amending Map 8-2 (Prime Frontage Area) to include the subject site as a Prime Frontage Area; and

3. Increasing the overall site density from 4.98 FSI to 8.6 (inclusive of density incentives).

20The ZBA application seeks to rezone the mixed-use site from General Commercial Zone (C1) and C1(12) to a Multiple-Family Dwellings Sixth Density Zone (RM6) with site specific exceptions allowing the commercial uses and to provide zoning standards relating to the building height, density, parking, and additional zoning regulations as necessary to permit the proposed redevelopment.

The Applicant’s Case

21The Tribunal heard from three witnesses. Carlos Antunes, in the area of Architecture, Kenneth Chan, on transportation matters and Michael Goldberg in the discipline of planning

22Mr. Antunes was qualified to provide expert opinion evidence in the area of Architecture. Most of the information supplied to the Tribunal was factual, with respect of the design and layout of the most recent architectural plans. From his testimony, three areas of concern emerged with respect to this latest version of plans and drawings. These relate to the extension of decks from the six-storey podium along Yonge Street closer than 10 m from the curb, the set back of the podium 1.5 m from the southerly lot line, adjacent to the Appellants’ property, and the floorplate of the tower.

23In direct exam, Mr. Antunes stated that his client was in agreement with the removal of the balconies that extended beyond the front face of the podium along Yonge Street. This would leave the indented balconies remaining along this easterly facing façade and a minimum of 10 m from the curb. Mr. Antunes, in direct, also conceded the removal of the balconies along the south end of the podium, facing the Appellants’ property. In cross- examination from the Appellants a concern was raised over the set back of the podium, 1.5 m from the southern lot line, whereas the initial design had a blank podium wall, flush to the lot line. And, lastly, the City questioned Mr. Antunes about the increased size of the floorplate of the tower. The actual size of the floorplate is 795 sq m but, depending on by-law interpretation, one by-law produces a floorplate of 774 sq m and the other by-law produces a floorplate of 755 sq m. The maximum size of the floorplate in the Tall Building Design Guidelines is 750 sq m.

24Mr. Antunes opined that the change in design of the overall massing and podium configuration is an attempt to adhere to City driven questions and concerns and not by his client. The result of these concerns has driven the re-assigning of units/mix, the push/extension of the tower plate to the west along Horsham Avenue and the amended configuration/location of the podium.

25Mr. Chan, who was qualified by the Tribunal to provide expert opinion evidence in the area of transportation, gave the Tribunal an overview of his work and findings. The cross examination focused on the study required for this development. Section 4.3 of the NYCSP deals with Transportation Capacity and Long Range Development Levels and the anticipated level of development is based on a number of assumptions and factors such as trip generation rates, modal split, gross floor area per population estimates and the extent to which commercial permissions will be maximized. The City focused on section 4.3.c)(i) of the NYCSP which states that a zoning by-law may be enacted that would permit an increase in either the residential or non-residential gross floor area levels to be exceeded where “a comprehensive transportation study demonstrates that the overall trip generation rate is not increased.” Mr. Chan opined that there is nothing in the secondary plan to define a comprehensive transportation study and he therefore consulted with the City in order to gather the set parameters required for the scoped report that he produced. Mr. Chan was not challenged, by any witness, on the findings of his report.

26Mr. Goldberg was qualified by the Tribunal in the area of land use planning and gave an overview of the planning regime for the subject property and surrounding area. In relation to the City of Toronto Official Plan (“CTOP”), the subject property is: located in the Centres designation on the Urban Structure, Map 2; situated along a Higher Order Transit Corridor along Yonge Street, on Map 4, and; in the Mixed Use Areas designation on the Land Use Plan, on Map 16. No amendment to the CTOP is required for this proposal.

27The subject property is located in the NYCSP area and more specifically located in North York Centre North as illustrated on Map 8-1. The subject property is in Mixed Use Area ‘G’, which limits the maximum Commercial Use to 20% and has a base density limit of 3.75 times the Floor Space Index (“FSI”) with bonusing of up to 33% for a maximum density 4.9875 FSI. The maximum height limit along this section of Yonge Street is 87 m.

28Mr. Goldberg stated that the City of Toronto Zoning By-law No. 569-2013 does not apply to this area and the former City of North York Zoning By-law No. 7625 governs the subject property. The current zoning on that portion abutting Yonge Street is General Commercial One (C1) and the western portion of the property, along Horsham Avenue and Canterbury Place is Commercial One – Exception 12 (C1(12)).

29Mr. Goldberg summarized themes from both the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”). Mr. Goldberg focused on section 4.6 of the PPS with respect to the implementation of official plans where it states that, “in order to protect provincial interests, planning authorities shall keep their official plans up-to-date with this Provincial Policy Statement. The policies of this Provincial Policy Statement continue to apply after adoption and approval of an official plan.” He stated that, in accordance with section 9.1 of the NYCSP, the secondary plan will be reviewed at five-year intervals. The NYCSP dates back to 1997 and was carried forward into the 2002 CTOP.

30Mr. Goldberg also reviewed the concept of need as it relates to the minimum intensification and density targets in section 5.2.5 of the Growth Plan. Mr. Goldberg stated that these intensification targets are minimums and should not be used to stagnate the potential optimization of any site.

31Mr. Goldberg stated that, the proposal in front of the Tribunal, meets the goals and objectives of both the PPS and the Growth Plan. The proposed development optimizes the land and infrastructure in an area where public transportation is optimized. It is in a compact form on a main street, in a downtown Urban Growth Centre, where the most intense development is directed, which will also assist in revitalization of the area. Mr. Goldberg opines that the subject proposal is consistent with the policies of the PPS and conforms to the policies of the Growth Plan.

32Mr. Goldberg reviewed various sections of the CTOP. They included the mixed-use area policies, built form policies and housing policies. Mr. Goldberg stated that North York has a vibrant downtown with a cluster of density in this growth centre area. The focus of these mixed-use areas is to reduce the reliance on automobiles by locating jobs and homes within this downtown core. The vision is to create a safe pedestrian environment with access to the various types of transit. Mr. Goldberg stated that there is no prescription for height or density in the CTOP and it is his opinion that the location and form of the proposed development implements and satisfies the applicable sections of the CTOP and, therefore conforms.

33Mr. Goldberg reads the NYCSP, in its entirety, with a liberal interpretation. This document was approved, subject to modifications, on December 4, 1998. There have been many site specific OPAs since its adoption, all having a cumulative affect on the continuing evolution of the North York centre.

34Section 1.14 states in part that:

… The City will be satisfied that the proposed amendment is minor in nature and local in scope, and that it does not materially alter provisions of this secondary plan dealing with boundaries, land use, density, height or built form. However, the numeric limits contained within this secondary plan with respect to density, and the limits respecting height, will nonetheless be considered to be absolute.

35Given the age of the NYCSP, Mr. Goldberg sets aside the absolute limits with respect to density and height and focuses on whether the proposed amendment is minor in nature and local in scope through the eyes of not just the provisions of this secondary plan but also the principles of an independent review of the PPS and Growth Plan.

36Mr. Goldberg looks at the proposed increase in height of the building through urban design and built form, all in relation to the local and existing context. Mr. Goldberg stated that the immediate neighborhood is made up of large slab buildings, with similar heights that were constructed before the introduction of the City’s Tall Building Design Guidelines which have directed the design and construction of modern, slender and tall residential towers with spatial separation that will appear slender in this immediate area.

37With increased height, density will automatically follow. Mr. Goldberg was most critical of this aging NYCSP when it came to density. In context this is a glaring example of how the secondary plan has outlived its purpose. Through the lens of the PPS this policy is simply inappropriate as the direction should be to optimize use in infrastructure in a proper built form and the direct link between provincial policy, in his opinion, is being ignored by the City.

38The base density calculation for the subject lands is being further hampered through a density transfer that took place in 1995 whereby the density available on the 15 Horsham Avenue portion of the property was transferred to a property to the north. Without this density transfer the base density plus incentives would equate to 4.98 FSI. but with the density transfer the total achievable FSI for the entire site is 3.16. It is Mr. Goldberg's estimation that this would reduce the proposed building height by 24 stories.

39It is Mr. Goldberg's opinion the density policies of the NYCSP do not accommodate sufficient growth for the subject site to properly implement the Centres policies of the CTOP or the policies of the PPS and the Growth Plan and would be a complete underutilization of the site. It is Mr. Goldberg’s review of the evolving nature of the policies, as expressed through the many site specific OPAs, that draw his conclusions with respect to conformity to the policies of the NYCSP.

The City’s Case

40The Tribunal heard from three witnesses. Rong Yu, in the area of Urban Design, Diane Ho, on transportation matters and Stephen Gardiner in the discipline of planning, all of whom were qualified by the Tribunal in their respective areas of expertise.

41Rong Yu focused on the two issues that still remain. These are building height and floor plate size and it is her opinion that these two matters do not meet the planned context for the NYCSP or the City’s Tall Building Design Guidelines respectively. It was her position that the increase in height and density was simply not required and that there was no rationale for these increases.

42Ms. Yu, in cross-examination, did admit that purely from an urban design perspective she could accept a set of drawings that would modify the height to the 87 m maximum allowed in the NYCSP and the maximum of a 750 sq m floorplate. Also in cross-examination, given the proposed amendments to the balconies, both along the Yonge Street section and common property line with the neighbour to the south, she is satisfied with the built form of the podium in this area.

43Diane Ho reviewed policies that relate to transportation. The specific issue is Ms. Ho’s reference to Policy 1.13 of the NYCSP which states that “Any general change in the boundaries, densities or heights of the North York Centre South or of the North York Centre North will be preceded by a comprehensive review of this secondary plan.” Based on this policy Ms. Ho concludes that a comprehensive review, including a comprehensive transportation study, is required as per Policy 4.3(c) of the NYCSP to justify this significant increase in density.

44Ms. Ho opined that a City-initiated review of the NYCSP is not required, given that the current plan meets all relevant policy tests. Reviewing the NYCSP in isolation the Tribunal may agree, but not in the face of the many policy documents and guidelines that have been produced since 1998, not to mention that numerous site specific OPAs have also participated in shaping the current landscape, contributing to the ever changing existing context.

45The Tribunal will not take a rigid view of the NYCSP and accept the conclusion that a site specific OPA requires a comprehensive study of the whole of the secondary plan, given this evolution that has occurred over the past 20 plus years. On the contrary, it is the City that must look at the cumulative affect of both the changes in upper tier policy and the ongoing amendments to the NYCSP and decide when is it time to update the secondary plan to bring it more in line with what is evolving and has actually occurred.

46Stephen Gardiner presented opinion planning evidence on behalf of the City. The Tribunal found that Mr. Gardiner took a different approach to his evidence and spent more time on the need for complete communities, as defined and stated in section 1.2.1 of the Growth Plan. He focused on this theme throughout his evidence, when referring to the various planning instruments.

47With this theme in mind Mr. Gardiner reviewed a number of documents which included the 2019 Toronto Employment Survey and the 2016 State of Mobility Hubs which illustrate that the NYCSP area is the second highest and already exceeds the minimum number of jobs and people per hectare.

48It is Mr. Gardiner's position that the NYCSP achieves the principles set out in the PPS and the Growth Plan with this current framework of densities and heights with further density incentive policies that integrate land use planning with investment in public service facilities thus creating complete communities.

49Mr. Gardiner goes on to state that the proposed application, with a significant site-specific density increase, has no regard for the limits, policies and vision of the NYCSP. A density that significantly exceeds the planning policy framework is not needed to achieve matters of public interest. It is his opinion that infill development with the density consistent with the current policy framework would be appropriated and would appropriately respond to matters of provincial interest.

The Appellants’ Case

50Jim Kotsopoulos, gave opinion planning evidence and Michael Koutsoulis gave evidence in the disciplines of Architecture and Urban Design. Both were qualified by the Tribunal to give expert testimony in their fields.

51The Tribunal was presented with two design concepts from Mr. Koutsoulis. The first dealt with 5376 Yonge Street in isolation and the second design included the property and 5374 Yonge Street, being the property directly to the south.

52The first concept does not illustrate the potential of any built form concept other than to illustrate that the stand-alone site does not have the required width to permit the required parking access aisle width and turning radii.

53The Tribunal finds this is simply a statement of fact. In no way does the proposed development change this fact other than to be sympathetic to any potential this site may ultimately achieve if it is ever re-developed. This can be accommodated by ensuring some compatibility along the common lot line to allow this lot to reach whatever potential it may have, given its present constraints.

54The second concept proposes combining the two properties to the south of the subject lands to create a low to mid rise building concept. This proposal is suggesting a potential of up to 30 residential units in a five-storey building and illustrates access from Yonge Street directly onto a down ramp to a location in the basement where two cars can park and a car lift would shuttle cars to a second basement level where it is proposed the cars will be horizontally stacked to conserve space. Mr. Koutsoulis opines that all of this is better achieved with a private access through the subject property due to the potential constraints the City may impose on any re-development using the Yonge Street access.

55Mr. Kotsopoulos stated that, in his opinion, the proposed development, at 5400 Yonge Street, conforms with the overarching applicable policies set out in the PPS and the Growth Plan. The proposal will make full and cost-effective use of the existing infrastructure, public transit, and human services systems within a highly urbanized environment. The proposed development represents transit supportive density and the subject site is an ideal location for it. The proposed development conforms to the Growth Plan and represents an appropriate intensification of residential and commercial uses, thus implementing an urban and compact community.

56However, Mr. Kotsopoulos stated that to ensure this proposal constitutes and considers all aspects of “good planning”, it must take into consideration, the surrounding existing context, in particular the abutting lands to the south. As currently designed, the proposed development will prejudice and inhibit the ability of the 5376 Yonge Street property from optimally redeveloping in the future. The proposal must concern itself and consider the surrounding existing and planned context by satisfactorily providing for the ability of the adjacent lands to develop in a comprehensive manner and a block assessment should be imposed to achieve these results.

Findings

57The Tribunal finds that there is a circular argument taking place within the City’s evidence to justify the outcome. The Tribunal also sees a divergence between height and density within the NYCSP as it relates to the CTOP and the provincial policy documents. Simply put, if the NYCSP is meeting its goals and objectives with respect to the PPS and Growth Plan then the Tribunal must accept, given the density limits including the bonusing, that roughly a six-storey podium is all that is required to satisfy the direction in PPS and Growth Plan with respect to the level of intensification on the subject property. This is a massive underutilization of this site.

58The concern of the City is that by approving this development it would be setting a precedent by approving a density very large in comparison to the NYCSP policies. On this point the Tribunal disagrees. The subject property is located in a very unique location within the NYCSP. When looking at the block structure within the boundaries of the secondary plan, the existing block together with the block directly to the south of Churchill Avenue are unique to the area. This is the only location within the secondary plan area where the area for intensification within the secondary plan boundary is broken by a public north/south road, being Canterbury Place. The secondary plan boundary, west of Yonge Street, lies between Yonge Street and Beecroft Road to the west. The existence of Canterbury Place, running north/south, between Ellerslie Avenue and Horsham Avenue creates two city blocks with considerably less depth from Yonge Street than anything within the whole of the NYCSP area. These two narrow depth blocks do not allow for the accumulation or combining of properties moving Westerly away from Yonge Street to the westerly limit of the NYCSP area, due to the break created by Canterbury Place. This eliminates the opportunity to “spread” the FSI in a stepdown fashion as one moves away from the center corridor.

59The Tall Building Design Guidelines came into effect in 2013. One of the issues the Tribunal faces is whether the proposed development on the subject property fulfills the requirements of the Tall Building Design Guidelines. The only minor exception is a small increase in tower floor plate. In all other respects the proposed development meets these suggested guidelines. This minor increase in floorplate will not be noticeable especially given the close proximity to other towers with much larger tower floorplates in the immediate neighbourhood.

60An urban growth centre is where high rise and high density-mixed use developments are promoted and coexist with lower forms of development. The two small remaining properties, along Yonge Street, form the overall character of not only this block but the surrounding neighbourhood.

61A block assessment was not done for the approval, by the City, of the 30-story apartment complex, under construction, directly south of the subject lands fronting on Canterbury Place. At that time access to Canterbury Place, for these two remaining properties, may have been suggested through these lands. At that time the two properties on the subject site were separate parcels of land. The two properties have now merged for the current proposal on the subject property. Without this merger and development proposal would there be a demand now for a block assessment? What would have resulted from a block assessment at the time the development proposal for the 30-storey residential building to the south was working its way through the planning process? The answers to these questions will never be tested.

62The Tribunal finds there is no compelling reason for an overall block assessment with regard to access to the two remaining parcels directly south of the subject lands. The negotiation of any access, through the subject property, will be by way of private negotiation between the parties with no involvement from the Tribunal. The property at 5374 and 5376 Yonge Street are separately conveyable parcels and a planning assessment on the joint properties is, at best, unhelpful speculation. No feasibility or costing has been completed and the Tribunal will not impose a condition based on the unknown. Also, given the direction to a more transit supportable community, the future timing of any development will have an effect on the outcome.

63The Tribunal does find that the subject proposal requires further alteration to be sensitive to the property at 5376 Yonge Street, in a fashion that will all allow this property to see its full, albeit, limited potential and represent good planning. The potential solutions were discussed within the context of this hearing and the Tribunal is satisfied that the plans will be amended to remove the balconies along the south wall of the six-storey podium. This section of podium is proposed to be 1.5 m north of the common property line. Any design elements in the proposed podium will accommodate the potential construction of a building at 5376 Yonge Street along the common property line.

64Official Plan Amendment 231 was discussed at this hearing event. This OPA gives direction to the increase of office space where a minimum of 1000 sq m of office space currently exists. This OPA is under appeal in this regard therefore the Tribunal will not impose office replacement.

65With the modifications now proposed by the Applicant there was no substantial dispute over built form or urban design matters remaining and there is minimal and acceptable impact from shadowing. The proposed development will fit harmoniously with the existing context.

66The Tribunal was led through a series of development proposals that were either approved by the City or by the Local Planning Appeal Tribunal, or one of its predecessors. Given the age of the NYCSP these approvals spanned many years and have contributed the ever-evolving change with the planned context. The Tribunal agrees with Mr. Goldberg and finds that a liberal interpretation of section 1.14 of the NYCSP is required to ensure meaningful intensification takes place considering the policy direction from the PPS and Growth Plan.

67The review of the various development proposals also illustrated some inconsistencies with respect to what facilities, services or matters that have been accepted as contributions as part of the Section 37 Agreement. The Tribunal has been asked to leave matters dealing with the Section 37 Agreement to the parties. The parties will inform the Tribunal, through the Case Coordinator, if any issues arise.

68The Tribunal agrees with the opinion evidence of Mr. Goldberg and Mr. Kotsopoulos. The Tribunal is satisfied that the proposed amendments are consistent with the PPS and conform with the policies of the Growth Plan. The Tribunal is also satisfied that the proposed official plan and zoning by-law amendments conform with objectives and policies of the CTOP, as the NYCSP will be amended. The Tribunal has also reviewed its decision in light of the 2021 PPS and finds consistency with this latest version of the PPS.

69The Tribunal approves, in principle, the plans and drawings as illustrated in Exhibit 6 with further amendments for the removal of the protruding balconies along Yonge Street, within 10 m of the curb and the removal of the balconies along the south wall of the eastern podium section that abuts 5376 Yonge Street and incorporated design elements along this wall so as to allow this property, to the immediate south, to be able to build a blank wall along the common property line.

70The Tribunal will allow the appeals, in part, to direct amendment of the NYCSP and amendment of North York Zoning By-law No. 7625, as amended, to accommodate the proposed development but will withhold its final order until the Tribunal has received a written notice from counsel that the identified matters have been addressed. The Tribunal has not been provided with draft instruments for consideration at this time and accordingly it will remain for the Tribunal to review and approve the final form of the amendments once they have been provided in accordance with the Interim Order.

INTERIM ORDER

71The Tribunal orders that the Appeals brought by the Applicant, 5400 Yonge Holdings Ltd., pursuant to s. 22(7) and 34(11), are allowed in part. The Tribunal makes the following interim provisional order, subject to the satisfaction of the matters stipulated, as follows:

(a) The Tribunal orders, on an interim basis, that the proposed Development presented at the hearing of these Appeals, and the amendment of The North York Centre Secondary Plan to the Official Plan for the City of Toronto and the amendment to ZBA to the former City of North York Zoning By-law No. 7625 required to permit the proposed Development, are provisionally approved, in principle.

(b) The Tribunal will withhold issuance of its Final Order, conditional upon, and pending receipt and approval of the final draft of the amending instruments and pending confirmation or receipt of, the following from the Parties:

1. the Ontario Land Tribunal has been advised by the City Solicitor that the proposed Official Plan and Zoning By-law amendments are in a form and with content satisfactory to the Director, Community Planning, North York District and the City Solicitor

2. the City Solicitor confirms that the owner has provided a Functional Servicing Report, a Stormwater Management Report, and a Hydrogeological Report, acceptable to the Chief Engineer and Executive Director, Engineering and Construction Services;

3. the City Solicitor confirms that the owner has designed and provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing Report, Stormwater Management Report, and Hydrogeological Report to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, should it be determined that improvements or upgrades are required to support the development, according to the Functional Servicing Report, Stormwater Management Report, and Hydrogeological Study, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services;

4. the City Solicitor confirms that the implementation of the Functional Servicing Report, Stormwater Management Report and Hydrogeological Report accepted by the Chief Engineer and Executive Director, Engineering and Construction Services either does not require changes to the proposed amending by-laws or any such required changes have been made to the proposed amending by-laws to the satisfaction of the Chief Planner and Executive Director, City Planning, the City Solicitor and the Chief Engineer and Executive Director, Engineering and Construction Services; and

5. the City Solicitor confirms the satisfactory execution and registration of a Section 37 Agreement satisfactory to the Chief Planner and Executive Director, City Planning to secure the Section 37 matters.

72The Panel Member will remain seized for the purposes of reviewing and approving the final drafts of the Zoning By-Law Amendments and the issuance of the Final Order and with respect to such outstanding matters relating to this Interim Order. In the event that issues arise in connection with satisfaction of the above conditions, the Member may be spoken to through a request to the Case Coordinator.

73If the Parties do not submit the final drafts of the amending instruments, and provide confirmation that all other pre-requisite conditions set out in paragraph 71 above have been satisfied, and request the issuance of the Final Order, by Tuesday, May 31, 2022, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft amendments to the North York Centre Secondary Plan for the City of Toronto and former City of North York Zoning By-law No. 7625 and issuance of the Final Order by the Tribunal. The Tribunal may, as necessary arrange the further attendance of the Parties by Telephone Conference Call to determine the time lines for the submission of the final form of the instruments and the issuance of the Final Order and such further follow-up as may be required to have the Final Order issued by the Tribunal.

“G.C.P. Bishop”

G.C.P. BISHOP

VICE CHAIR

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.