Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2022

CASE NO(S).: OLT-22-003733 (Formerly) PL170069

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

Applicant and Appellant: 2915 Bloor Street West Limited Partnership

Subject: Application to amend Zoning By-law No. 941-2003 - Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: Limited Commercial – Avenues (AV)

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 9-storey mixed-use building

Property Address/Description: 2915-2917 Bloor Street West

Municipality: City of Toronto

Municipality File No.: 16 141156 WET 05 OZ

OLT Case No.: OLT-22-003733

Legacy Case No.: PL170069

OLT Lead Case No.: OLT-22-003733

Legacy Lead Case No.: PL170069

OLT Case Name: 2915 Bloor Street West Limited Partnership v. Toronto (City)

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

Applicant/Appellant: 2915 Bloor Street West Limited Partnership

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

Reference Number: 21 237739 WET 03 OZ

Property Address: 2939-2943 Bloor Street West

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003914

OLT Lead Case No.: OLT-22-003733

Heard: July 25 and August 8. 2022 by video hearing and December 19, 2022 by telephone conference call

APPEARANCES:

Parties	Counsel
2915 Bloor Street West Limited Partnership	D. Bronskill
City of Toronto	S. O’Connor and U. Gautam (on July 25, 2022 and August 8, 2022 only)
Sunnylea Kingsway Community Association	A. Biggart (on July 25, 2022 and December 19, 2022 only) and C. Kapelos (on August 8, 2022 only)

DECISION DELIVERED BY HUGH S. WILKINS AND INTERIM ORDER OF THE TRIBUNAL

1On July 25, 2022, the Tribunal held a Case Management Conference (“CMC”) and, on August 8, 2022, it held a settlement hearing in regard to the appeals brought by 2915 Bloor Street West Limited Partnership (“Appellant”) regarding the failure of the City of Toronto (“City”) to make decisions on the Appellant’s applications for zoning by-law amendments to facilitate development on the lands located at 2915 to 2917 and 2939 to 2943 Bloor Street West (“subject properties”).

2The property located at 2915 to 2917 Bloor Street West was the subject of a zoning by-law amendment appeal hearing before the Tribunal in 2018. In the Tribunal’s decision, dated May 10, 2019 (see: 2915 Bloor Street West Limited Partnership v. Toronto (City), 2019 CanLII 42152 (ON LPAT)) (“2019 Decision”), the Tribunal rendered an interim Order inviting the Appellant to revise its proposed zoning by-law amendment and then to later return with the other Parties to the Tribunal to make submissions on a final Order.

3The Parties engaged in mediation and reached a settlement agreement, but did not return to the Tribunal for a final Order. Instead, the Appellant purchased the adjacent property at 2939 to 2943 Bloor Street West and applied for a zoning by-law amendment to facilitate the extension of the proposed development onto those lands. The City failed to make a decision on that application and the Appellant appealed.

4The Parties have now reached a global settlement agreement regarding both proceedings. The result would be one zoning by-law amendment addressing all the lands in their entirety.

5This Decision first addresses the CMC held on July 25, 2022 and then the settlement hearing held on August 8, 2022. Final materials relating to the Interim Order were received by the Tribunal on November 3 and 9 and December 6, 2022. On December 19, 2022, the Tribunal held a telephone conference call with the Parties to confirm their agreement to the contents of the Interim Order.

CMC ON JULY 25, 2022

6At the CMC held on July 25, 2022, the Parties asked that the proceedings in Tribunal Case Nos. OLT-22-003733 (the initial proceeding) and OLT-22-003914 (the subsequent proceeding) be consolidated and that a settlement hearing be scheduled. The Tribunal also addressed requests for Party and Participant status.

Requests for Status

7Sunnylea Kingsway Community Association requested Party status. It is a residents’ association that focuses on the area that includes the subject properties. It is an incorporated entity and is already a Party in Tribunal Case No. OLT-22-003733. Neither the City nor the Appellant objected to this request for Party status. The Tribunal found that Sunnylea Kingsway Community Association has a genuine interest in the proceeding, would be directly impacted by its outcome, and could assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds for adding the Sunnylea Kingsway Community Association as a Party and granted it Party status as requested.

8Robert Jenkins, Michael Green, and Nicalandro Holdings Limited each requested Participant status. Each has been involved in the initial proceeding and each either resides or owns land in the vicinity of the subject properties. None of the Parties objected to their requests for Participant status and the Tribunal granted each of them Participant status as requested.

Consolidation Request

9The Appellant requested, on consent, that the proceedings be consolidated. The Parties and issues in the two proceedings are the same and the proposed settlement envisions the approval of a single instrument. The Tribunal found that it would be efficient and appropriate for the two proceedings to be consolidated.

Scheduling of the Settlement Hearing

10As noted above, the Parties reached a proposed global settlement addressing the appeals. The Tribunal scheduled a settlement hearing for August 8, 2022. It asked the Appellant to send the proposed settlement materials to the Participants immediately and asked the Participants to serve on the Parties and file with the Tribunal any written submissions regarding the proposed settlement by August 2, 2022.

SETTLEMENT HEARING ON AUGUST 8, 2022

11The Tribunal held the settlement hearing by video on August 8, 2022. Upon hearing the evidence and submissions of the Parties and the reviewing the submissions of the Participants, the Tribunal made an interim Order allowing the appeal, in part, and approving the proposed Zoning By-law Amendment, in principle.

Issues

12When adjudicating a zoning by-law amendment appeal under s. 34(11) of the Planning Act, the Tribunal must determine whether the proposed amendment:

a) is consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”));

b) conforms with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”);

c) conforms with applicable official plans (in this case, the City’s Official Plan); and,

d) represents good planning.

The Tribunal must also have regard to the matters of provincial interest set out in s. 2 of the Planning Act and have regard to the information and materials that City Council received in relation to the matter under s. 2.1(2) of the Planning Act.

Evidence and Submissions

13In support of the proposed settlement, the Appellant filed an affidavit sworn by Antonio Volpentesta, dated August 5, 2022. He is a land use planner retained by the Appellant. He also provided oral testimony at the settlement hearing. The Tribunal qualified him to provide opinion evidence in the area of land use planning.

14The City and Sunnylea Kingsway Community Association did not provide evidence at the settlement hearing. They both support the proposed settlement.

15Mr. Volpentesta stated that the proposed Zoning By-law Amendments would facilitate the development of a seven-storey mixed-use building with retail at grade and 225 residential units. He said it would have 68 residential parking spaces and 23 visitor and commercial parking spaces and an indoor and outdoor amenity of 900 square metres in total. He said the building would have 169 one-bedroom, 34 two-bedroom, and 23 three-bedroom units.

16He stated that the subject property is zoned under the former City of Etobicoke Zoning Code, as amended by By-law No. 941-2003, as AV (Limited Commercial – Avenues) zone with a height limit of six storeys. He said that it is within a “hole” in the new City-Wide Zoning By-law No. 569-2013 for which there is no zoning. He said it, therefore, is not presently subject to that By-law.

17Mr. Volpentesta opined that the proposed Zoning By-law Amendment is consistent with the PPS. In particular, he stated that it facilitates appropriate residential intensification, the efficient use of land and infrastructure, and development that is transit-supportive and provides an increase in the mix and supply of housing.

18Mr. Volpentesta opined that the proposed Zoning By-law Amendment conforms with the Growth Plan. He said the subject property is located within a “strategic growth area” and within 120 metres of a TTC subway station. He said the proposed Zoning By-law Amendment would help to create of a complete community and optimize the use of land and infrastructure.

19Mr. Volpentesta opined that the proposed Zoning By-law Amendment conforms with the City’s Official Plan. He stated that the subject properties are designated as being within a Mixed Use Area, which permits a broad range of commercial, residential and institutional uses in single use or mixed-use buildings. He opined that the proposed development addresses the Official Plan’s criteria for Mixed Use Areas, including those addressing setbacks, angular planes, and shadowing. He said it also properly addresses the Official Plan’s policies on intensification, compatibility, and transition to neighbouring uses.

20Mr. Volpentesta stated that the subject properties are subject to the Bloor-Kingsway Urban Design Guidelines, which aim to ensure a high quality of urban design and building treatment that is sensitive to the area’s features and the nearby residential neighbourhoods. He said the goals and objectives of the Bloor-Kingsway Guidelines include reinforcement of the distinctive character of the area, the on-going provision of local shops, services and amenities, preservation and enhancement of the pedestrian urban experience, and encouragement of appropriate building types and designs. He stated that the proposed instruments address and have appropriate regard for these Guidelines.

21Mr. Volpentesta also stated that the City’s Mid-Rise Building Guidelines apply to the subject property. He said that these Guidelines provide performance standards relating to the design of mid-rise buildings to ensure that the area is developed in an appropriate and context-sensitive manner. He said they aim to ensure that: new buildings are moderate in height and are not taller than the width of the street right-of-way; minimum ground floor heights are 4.5 metres to facilitate retail uses at grade; buildings provide an appropriate transition in scale to adjacent neighbourhoods, taking into account a 45 degree angular plane; building frontages exceeding 60 metres are articulated to ensure that facades are not overly long; buildings reflect design excellence and green building innovation; and sidewalks are wide enough to include and support trees, generate a lively pedestrian culture, and ensure accessibility. He stated that in the Tribunal’s Interim Order, dated May 10, 2019, it suggested modifications to the building proposal to better address, among other things, the Mid-Rise Guidelines. He said these included suggestions that the proposed development:

• have a reduced height (up to 6 storeys, plus mechanical penthouse and limited area structures associated with rooftop indoor and/or outdoor amenity space);
• comply with the angular plane of the existing zoning and front, side and rear stepbacks; and,
• have a reduced floor space index (FSI) resulting from these suggested revisions.

22Mr. Volpentesta said the proposed settlement responds to these recommendations by reducing the height of the proposed development and providing setbacks and a rear angular plane to achieve a built form that implements the applicable policies and zoning. He opined that the proposed height and massing would fit harmoniously with the existing and planned context of the area with an appropriately scaled building and transition to the adjacent neighbourhoods.

23Mr. Volpentesta stated that he had regard to the matters of provincial interest set out in s. 2 of the Planning Act, including those related to the orderly development of a safe and healthy community, provision of a range of housing options, provision of employment opportunities, and the appropriate location for development close to amenities and public transit.

24Mr. Volpentesta stated that the proposed settlement envisions that the Tribunal’s final Order be withheld until the City advises that:

• the proposed Zoning By-law Amendment is in a final form and content that is satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;
• the owner of the subject property has submitted a revised Functional Servicing Report and Hydrogeological Report addressing all outstanding issues raised by the City’s Engineering and Construction Services as they relate to the Zoning By-law Amendment application as set out in their memorandum, dated March 23, 2022, or as may be updated in response to further submission(s) filed by the owner, to the satisfaction of the City’s Chief Engineer and Executive Director, Engineering and Construction Services;
• the owner has made satisfactory arrangements with the City’s Engineering and Construction Services and entered into the appropriate agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support the development, according to the accepted Functional Servicing Report and Traffic Impact Study accepted by the City’s Chief Engineer and Executive Director of Engineering and Construction Services;
• the owner has submitted to the City’s General Manager of Transportation Services, for review and acceptance, a revised Transportation Impact Study and Parking Study to the satisfaction of the City’s General Manager of Transportation Services;
• the owner has submitted a revised Landscape Plan, Soil Volume Plan, Arborist Report and Tree Protection Plan, for review to the satisfaction of the City’s General Manager, Parks, Forestry and Recreation, and any necessary financial securities, to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Parks, Forestry and Recreation, and that such matters arising from such studies and plans be secured if required;
• the owner has submitted and received approval from City Council regarding a Rental Housing Demolition and Conversation Application pursuant to Section 111 of the City of Toronto Act, 2006 with respect to the existing rental dwelling units being demolished on the subject property; and,
• the owner entering into an agreement under Section 37 of the Planning Act and/or the Site Plan Control Process to secure the following matters:
  • the owner work with City staff to provide space within the development for installation of maintenance access holes and sampling ports on the properties, as close to the property line as possible, for both storm and sanitary service connections, in accordance with the Sewers By-law Chapter 68-10;
  • the owner work with City staff to achieve appropriate unit sizes for the two bedroom and three-bedroom units to accommodate families;
  • secure the road widening of 0.4 metres along the Bloor Street West frontage of the properties and a laneway widening of 1.67 metres across the rear of the property abutting the existing public laneway;
  • secure planters for the rear terraces, including an obligation for maintenance as part of the common elements of the condominium corporation, to ensure year round plantings that provide visual screening; and,
  • satisfactory arrangements are made with the City’s Chief Engineer and Executive Director, Engineering and Construction Services for the design and construction of new infrastructure or any improvements to the existing municipal infrastructure, should it be determined in the revised Functional Servicing Report and/or revised Hydrogeological Report that new infrastructure and/or upgrades/improvements are required to the existing infrastructure, to support the development, and that the owner has entered into a financially secured agreement to pay for and construct any necessary municipal infrastructure, with any such agreement to be executed prior to issuance of an above-grade building permit.

25Mr. Volpentesta opined that these conditions are reasonable and appropriate.

26In response to concerns raised by the Participants regarding traffic, transit, and parking, he stated that these issues are addressed in the Appellant’s Transportation Impact Study and Parking Study and updates will be considered by the City as part of the above-noted conditions. He stated that compatibility, building height, and massing concerns have been addressed through the modifications to the proposed development agreed to by the Parties and that appropriate regard has been had to the City’s applicable guidelines, including the City’s Mid-Rise Building Guidelines. Regarding potential impacts on a possible right of way for access, utilities and light for the use of 2901 Bloor Street West, he stated that these concerns have been discussed to the satisfaction of the Participant, Nicalandro Holdings Limited, for the time being.

Findings

27Based on Mr. Volpentesta’s opinion evidence, the Tribunal finds that the proposed Zoning By-law Amendment is consistent with the PPS, conforms with the Growth Plan, conforms with the City’s Official Plan and applicable Secondary Plans, and constitutes good planning.

28The Tribunal has had regard to the matters of provincial interest in s. 2 of the Planning Act and the information and materials that City Council received in relation to the matter.

29On November 8, 2022, the Appellant informed the Tribunal that a s. 37 Agreement would not be executed and that the s. 37-related items set out above will be addressed through the site plan control process.

CMC ORDER

30The Tribunal orders that Sunnylea Kingsway Community Association is a Party in both Tribunal Case Nos. OLT-22-003733 and OLT-22-003914.

31The Tribunal orders that Robert Jenkins, Micheal Green, and Nicalandro Holdings Limited are each Participants in both Tribunal Case Nos. OLT-22-003733 and OLT-22-003914.

32The Tribunal orders that the proceedings in Tribunal Case Nos. OLT-22-003733 and OLT-22-003914 are consolidated.

INTERIM ORDER

33The Tribunal orders the appeals are allowed, in part, on an interim basis, and the draft preliminary Zoning By-law Amendment (to be reviewed by the City’s planning staff and Sunnylea Kingsway Community Association) set out in Attachment 1 to this Interim Order, is approved in principle, contingent upon written confirmation from the Parties that the matters identified in paragraph [34] below have been completed.

34The Tribunal will withhold the issuance of its Final Order contingent upon written confirmation from the Parties that:

• the zoning by-law amendments are in a form satisfactory to the Parties;
• the Owner has submitted a revised Functional Servicing Report and Hydrogeological Report addressing all outstanding issues raised by Engineering and Construction Services as they relate to the Zoning By-law Amendment Application, as set out in their memorandum dated March 23, 2022, or as may be updated in response to further submission(s) filed by the Owner, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
• the Owner has submitted a revised Transportation Impact Study and Parking Study for review and acceptance, to the satisfaction of the General Manager of Transportation Services;
• the Owner has made satisfactory arrangements with Engineering and Construction Services and entered into the appropriate agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the accepted Functional Servicing Report and Traffic Impact Study, accepted by the Chief Engineer and Executive Director of Engineering and Construction Services and the General Manager of Transportation Services;
• the Owner has submitted a revised Landscape Plan, Soil Volume Plan, Arborist Report and Tree Protection Plan, for review to the satisfaction of the General Manager, Parks, Forestry and Recreation; and any necessary financial securities, to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Parks, Forestry and Recreation, and that such matters arising from such studies and plans be secured, if required; and,
• the Owner has submitted and received approval from City Council regarding a Rental Housing Demolition and Conversion Application, pursuant to Section 111 of the City of Toronto Act, 2006 with respect to the existing rental dwelling units being demolished on the Properties.

35This Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

36If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [34] above have been satisfied, and do not request the issuance of the Final Order, by Friday, March 31, 2023, the Parties 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 Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

“Hugh S. Wilkins”

HUGH S. WILKINS VICE-CHAIR

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

OLT-22-003733 – Attachment 1