C & P Development Limited Partnership v. Toronto (City), 2022 CanLII 109896

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2022

CASE NO(S).: OLT-21-001034

EFFECTIVE DATE: August 12, 2022

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

Applicant and Appellant: C & P Development Limited Partnership

Subject: Application to amend Zoning By-law – Refusal or neglect of City of Toronto to make a decision

Purpose: To permit a 29-storey mixed use building with ground floor retail and a 129 sq.m. Privately Owned Publicly Accessible Space

Property Address: 707, 709 and 717 Church Street, 85, 89, 93 and 97 Collier Street and 28 Park Road

Municipality: City of Toronto Municipal Number: 20 220898 STE 11 OZ OLT Case No.: OLT-21-001034

OLT Lead Case: OLT-21-001034

OLT Case Name: C & P Development Limited Partnership v. Toronto (City) BEFORE:

C. HARDY MEMBER

S. BOBKA MEMBER

) Monday, the 14th day

) of November, 2022

THIS MATTER, in respect of the lands at 707, 709 and 717 Church Street and 85, 89, 93 and 97 Collier Street and 28 Park Road in the City of Toronto, having come for a public hearing on July 7, 2022 before the Ontario Land Tribunal (the "Tribunal") and the Tribunal having issued a Decision and Interim Order on July 19, 2022 (the “Decision”) allowing the Applicant and Appellant’s appeal in part, and approving the amendment of the City of Toronto Zoning By-law 569-2013, in principle, with the Final Order withheld pending the completion of the conditions set out in the Decision;

AND THE TRIBUNAL having issued its Final Order allowing the Appeal in part and Zoning By-law No. 569- 2013 of the City of Toronto being amended in accordance with the Zoning By-law Amendment attached to the Final Order issued on August 12, 2022 as Attachment "1";

AND THE TRIBUNAL having now received, on consent, an amended final Zoning By-law Amendment;

NOW THEREFORE

THE TRIBUNAL ORDERS that the previous Final Order and Zoning By-law Amendment issued on August 12, 20222 is hereby amended; and

THE TRIBUNAL ORDERS that the Zoning By-law Amendment attached hereto as Attachment “1”, is in full force and effect.

THE TRIBUNAL ORDERS THAT, pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, notwithstanding the eventual date of the formal issuance of this Order, it shall be, and was, effective as of Friday, August 12, 2022 which is the date that the Tribunal received, considered and determined the request for the Final Order in this proceeding.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

ATTACHMENT 1

Draft Zoning By-law

CITY OF TORONTO

Bill No. ~

BY-LAW NO. XXXX-2022(OLT)

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2021 as 717 Church Street and 85, 89, 93 and 97 Collier Street.

WHEREAS the Council of the City of Toronto has been requested to amend Zoning By-law No. 569-2013 of the City of Toronto, as amended, pursuant to Section 34 of the Planning Act, R.S.O. 1990, c.P. 13, as amended, with respect to lands known municipally in the year 2021 as 717 Church Street and 85, 89, 93 and 97 Collier Street; and

WHEREAS the Ontario Land Tribunal has the authority pursuant to Section 34 of the Planning Act, R.S.O. 1990, c.P.13 to pass this By-law; and

WHEREAS the Official Plan of the City of Toronto contains such provisions relating to the authorization of increases in height and density of development; and

WHEREAS the Official Plan for the City of Toronto contains provisions relating to the use of Section 37 of the Planning Act as a mechanism to secure capital facilities required to support development; and

WHEREAS pursuant to Section 37 of the Planning Act, as it read the day before Section 1 of Schedule 17 to the COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18 came into force, a By-law under Section 34 of the Planning Act may authorize increase in the height or density of development beyond those otherwise permitted by the By-law and that will be permitted in return for the provision of such facilities, services or matter as are set out in the By-law; and

WHEREAS Subsection 37(3) of the Planning Act, as it read on the day before Section 1 of Schedule 17 to the COVID-19 Economic Recovery Act, 2020 came into force, provides that where an owner of land elects to provide facilities, services and matters in return for an increase in the density or height of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services and matters; and

WHEREAS the owner of the aforesaid lands has elected to provide the facilities, services and matters hereinafter set out; and

WHEREAS the increases in height and density permitted beyond that otherwise permitted on the aforesaid lands by the Zoning By-law No. 569-2013, as amended, are to be permitted in return for the provisions of the facilities, services and matters set out in this By-law that are secured by one or more agreements between the owner of the land and the City of Toronto; and

WHEREAS the Local Planning Appeal Tribunal, by its Decision/Order issued on November 15, 2022 in OLT Case No. OLT-21-001034 approved amendments to Zoning By-law No. 569-2013 of the former City of Toronto, as amended , pursuant to Section 34 of the Planning Act, R.S.O. 1990, c.P. 13, as amended, with respect to lands known municipally as 717 Church Street and 85, 89, 93 and 97 Collier Street; and

WHEREAS the Local Planning Appeal Tribunal is continued under the name Ontario Land Tribunal (the “OLT”) and any reference to the Local Planning Appeal Tribunal or LPAT in this By-law is deemed to be a reference to the OLT; and

NOW THEREFORE pursuant to the Order of the OLT, Zoning By-law No. 569-2013, as amended, is further amended as follows:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, Chapter 800 Definitions, unless otherwise defined herein.

3. Zoning By-law 569-2013, as amended, is further amended by amending and replacing Article 900.11.10 Exception Number 1894 so that it reads:

(1894) Exception CR 1894

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections.

Site Specific Provisions:

(A) On 717 Church Street and 85, 89, 93 and 97 Collier Street, if the requirements of Section 5 and Schedule A of By-law [clerks to supply by-law #] are complied with, then a building or structure may be constructed in compliance with regulations (B) to (T) below.

(B) The lands consist of the area within the heavy lines as shown on Diagram 1 of [clerks to supply by-law#].

(C) For the purpose of this exception, a partial mezzanine is not a storey;

(D) Despite regulation 40.10.40.40(1), the permitted maximum gross floor area for all buildings and structures is 17,750 square metres, allocated as follows:

i. The permitted maximum gross floor area for residential uses is 17,650 square metres; and

ii. The permitted maximum gross floor area for non-residential uses is 100 square metres;

(E) A building, structure, addition, or enlargement that contains more than 80 dwelling units is subject to the following:

i. a minimum of 20 percent of the total number of dwelling units must contain two bedrooms;

ii. a minimum of 10 percent of the total number of dwelling units must contain three or more bedrooms;

iii. an additional 10 percent of the total number of dwelling units will be any combination of two bedroom and three bedroom dwelling units, or dwelling units that can be converted into any combination of two and three bedroom dwelling units; and

iv. convertible dwelling units, as described in (D)(iii) above, may be converted using accessible or adaptable design measures such as knock-out panels;

(F) Despite regulation 40.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum of 115.8 metres and the elevation of the highest point of the building or structure;

(G) Despite regulation 40.10.40.10(1), the permitted maximum height of any building or structure on the lands is the numerical value, in metres, following the symbol "HT" on Diagram 2 attached to By-law (Clerks to supply by-law ##);

(H) Despite clause 40.5.40.10, clause 40.5.75.1 and regulation (G) above, the following elements of a building may exceed the permitted maximum height as follows:

i. Wind screens, parapets, terrace or balcony guardrails, ornamental elements, pavers, balustrades, railings and dividers, art and landscaping features, pergolas, trellises, planters, eaves, privacy screens, stair enclosures, skylights, stacks, telecommunication equipment, antennas, flues, architectural screens, access hatches, roof assemblies, roof drainage, window washing equipment, chimneys, vents, light fixtures, pavers, elements of a green roof, structures located on the roof used for outside or open air recreation, which may project above the height limits shown on Diagram 2 attached to By-law [Clerks to supply ##] by no more than 3.0 metres;

ii. Elevator overrun and associated machine room and lightning rods, which may project above the height limits shown on Diagram 2 attached to By-law [Clerks to supply ##] by no more than 4.0 metres; and

iii. Cooling towers and screening elements for cooling towers which may project above the height limits shown on Diagram 2 attached to By-law [Clerks to supply ##] by no more than 2.0 metres and are required to be screened from view.

(I) Despite regulation 40.10.40.70(1) and 600.10.10(1), the required minimum building setbacks must be provided as shown in metres on Diagram 2 of By-law [Clerks to supply ##].

(J) Despite regulation (I) above, the required minimum building setback of the fourth storey of the building is 3.2 metres from the lot line abutting Collier Street and 3.5 metres from the lot line abutting Park Road, excluding structural supports and columns; and

i. for the purpose of interpreting this regulation, a partial mezzanine is not a storey;

(K) In addition to regulation (I) above, the required minimum building setbacks from the west lot line are also shown on Diagram 3 of By-law ## [Clerks to insert By-law number].

(L) Despite regulations 40.5.40.60(1), clause 40.10.40.60 and regulation (I), (J), and (K) above, the following elements of a building may encroach into the required building setback as follows:

ii. Cornices, eaves, light fixtures, parapets, art and landscaping features, fences and safety railings, juliette balconies, trellises, balustrades, chimneys, vents, wheelchair ramps, retaining walls, window sills, vertical window screens, screens, ornamental elements, ventilation shafts, mechanical equipment, frames, walkways, stairs, stair landings, decks, planters, art features, architectural features, site servicing features, window washing equipment, mullion cap extensions, screening, fences, up to a maximum of 0.5 metres;

iii. Awning and canopies, up to a maximum of 2.0 metres;

iv. Balconies up to a maximum of 1.7 metres, but shall only be permitted above the thirteenth storey, except that on the Park Road frontage balconies shall only be permitted above the fourteenth storey; and

v. Structural columns, including required insulation and cladding, up to a maximum of 1.7 metres, but shall only be permitted below the second storey on the portion of the building facing the west lot line.

(M) Article 600.20.10 with respect to priority retail streets does not apply;

(N) Despite regulation 40.10.40.50(1)(A) and (B) and (2), amenity space must be provided as follows:

i. A minimum of 1.9 square metres per dwelling unit of indoor amenity space;

ii. A minimum of 0.4 square metres per dwelling unit of outdoor amenity space in a location adjoining or directly accessible to the indoor amenity space; and

iii. No outdoor amenity space is required for non-residential uses;

(O) Despite clause 200.5.1, regulations 200.5.1.10(8), (12) and (13), clause 200.15.10, regulation 200.5.10.1 and Table 200.5.10.1, a minimum of three parking spaces are required and a maximum of five parking spaces may be provided for all uses on the lands, and may be provided as:

i. "car-share parking spaces";

ii. parking spaces for short-term pick-up and drop-off activities; or

iii. residential and non-residential visitor parking spaces.

(P) Despite regulation 200.5.1(3) and 200.5.1.10(2), a parking space may be obstructed by a structural wall, structural column or a loading space without requiring additional width to be provided on the obstructed side, and a drive aisle is not required.

(Q) Despite regulation 200.5.1.10(2), a parking space must have the following minimum dimensions:

i. Length of 5.6 metres;

ii. Width of 2.4 metres; and

iii. Vertical clearance of 2.0 metres.

(R) Despite regulation 230.5.1.10 (4) and (5);

i. The minimum dimension of a bicycle parking space if placed in a vertical position on a mechanical device is:

a. minimum vertical clearance of 1.9 metres;

b. minimum width of 0.45 metres; and

c. minimum horizontal clearance of 1.2 metres.

ii. The minimum dimension of a stacked bicycle parking space is:

a. minimum vertical clearance of 2.5 metres;

b. minimum width of 0.45 metres; and

c. minimum horizontal clearance of 1.8 metres.

(S) Despite regulation 230.40.1.20(2), a “short-term” bicycle parking space may be located more than 30 metres from a pedestrian entrance to the building on the lot.

(T) For the purpose of this exception, “car-share” means the practice whereby a number of people share the use of one or more motor vehicles that are owned by a profit or non-profit car-sharing organization and such car-share motor vehicles are made available to at least the occupants of the building for short term rental, including hourly rental and a "car-share parking space" means a parking space exclusively reserved and signed for a car used only for "car-share" purposes.

Prevailing By-laws and Prevailing Sections:

(A) Section 12(2) 132 of former City of Toronto By-law 438-86;

4. Despite any existing or future severance, partition or division of the lands, the provisions of this By-law apply to the whole of the lands shown on Diagram 1 attached to this By-law as if no severance, partition or division occurred.

5. Section 37 Provisions:

(A) Pursuant to Section 37 of the Planning Act, and subject to compliance with this By-law, the increase in height and density of the development is permitted beyond that otherwise permitted on the lands shown on Diagram 1 in return for the provision by the owner, at the owner’s expense of the facilities, services and matters set out in Schedule A of this By-law and which are secured by one or more agreements pursuant to Section 37(3) of the Planning Act that are in a form and registered on title to the lands, to the satisfaction of the City Solicitor;

(B) Where Schedule A of this By-law requires the owner to provide certain facilities, services or matters prior to the issuance of a building permit, the issuance of such permit shall be dependent on satisfaction of the same; and

(C) The owner shall not use, or permit the use of, a building or structure erected with an increase in height or density pursuant to this By-law unless all provisions of Schedule A are satisfied.

Ontario Land Tribunal Decision/Orders issued November 15, 2022 in OLT File No. OLT-21-001034.

SCHEDULE A

Section 37 Provisions

The facilities, services and matters set out below are required to be provided to the City at the Owner's expense in return for the increase in height and density of the proposed development on the lands as shown in Diagram 1 of this By-law and secured in an agreement or agreements under Section 37(3) of the Planning Act, and any other necessary agreement(s), whereby the owner agrees as follows:

1. An indexed cash contribution of $3,800,000 to be paid by the Applicant prior to the issuance of the first above-grade building permit for the proposed development, to be allocated as follows, the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the local Ward Councillor:

A. $500,000 to be allocated for on-site public art;

B. $500,000 to be allocated for enhanced streetscape improvements adjacent to the Subject Site, including improvements to Collier Street that enhance the urban design of that street;

C. $1,000,000 to be allocated for affordable housing initiatives; and

D. $1,800,000 to be allocated for social services, community facilities, park improvements and road safety and streetscape improvements in the immediate area of Bloor Street East, Yonge Street, Rosedale Valley Road and St. Paul's Square.

2. In the event that the cash contribution in Part 3.a.i. above has not been used for the intended purpose within three (3) years of the Zoning By-law Amendment coming into full force and effect, the cash contribution may be redirected for another purpose at the discretion of the Chief Planner and Executive Director, City Planning, in consultation with the local Ward Councillor.

3. The conveyance by the Applicant to the City of a road widening of 2.38 metres along the Park Road frontage of the Subject Site.

4. The Applicant shall provide, at its own expense, all to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, an unencumbered privately-owned, publicly-accessible space located along the west corner of the Subject Site along Church Street and Collier Street as generally shown on the Revised Plans dated June 1, 2022, in Confidential Attachment 3 to the report (June 8, 2022) from the City Solicitor, and have a minimum area of not less than 129.3 square metres; prior to the issuance of site plan approval, the Applicant shall convey for nominal consideration an easement along the surface of the privately-owned, publicly-accessible space lands to the City; the specific location, configuration, and design of the privately-owned, publicly-accessible space area shall be determined through the site plan approval process and shall be secured in a Site Plan Agreement with the City to the satisfaction of the Director, Community Planning, Toronto and East York District; the Applicant shall own, operate, maintain, and repair the privately-owned, publicly-accessible space and shall be required to install and maintain a sign stating that members of the public shall be entitled to use the privately-owned, publicly-accessible space area, all at the Applicant's own expense; and alternatively, the Applicant may convey to the City the area intended for the privately-owned, publicly-accessible space as on-site parkland in full or partial satisfaction of its parkland contribution as required by Section 42 of the Planning Act, at the election of the Chief Planner and Executive Director, City Planning and the General Manager, Parks, Forestry, and Recreation.

5. The Applicant agrees to implement one of the four (4) design options (Options A, B, C, or D) for grade-related access to the Subject Site as generally shown on the Revised Plans dated June 1, 2022, to be selected by, and to the satisfaction of, the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services, in consultation with the local community.

6. Prior to Site Plan Approval, the Applicant agree to provide a Construction Management plan and Neighbourhood Community Strategy to the satisfaction of the Chief Planer and Executive Director, City Planning, in consultation with the Chief Engineer and Executive Director, Engineering and Construction Services and the local Ward Councillor.