Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 21, 2022

CASE NO(S).: OLT-21-001071

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

Applicant and Appellant: Format Queensway Limited Partnership

Subject: Application to amend Zoning By-law No. 320 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Avenues

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 14-storey mixed use building containing 183 dwelling units

Property Address/Description: 875 The Queensway

Municipality: City of Toronto

Municipality File No.: 20 229385 WET 03 OZ

OLT Case No.: OLT-21-001071

OLT File No.: OLT-21-001071

OLT Case Name: Format Queensway Limited Partnership v. Toronto (City)

Heard: October 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Format Queensway Limited Partnership	Ira Kagan Sarah Kagan
City of Toronto	Jamie Dexter
Costco Wholesale	Joseph Hoffman

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON OCTOBER 12, 2022 AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter involves a settlement hearing for an appeal by Format Queensway Limited Partnership (“Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) for the failure of the City of Toronto (“City”) to make a decision within the statutory timeframes on a Zoning By-law Amendment (“ZBA”) for the property municipally known as 875 The Queensway (“Subject Site”).

2Initially, the proposal sought to permit a 14-storey mixed use building containing 183 dwelling units. The proposal was revised several times and the final revised application now proposes a mixed-use development comprising of an 11-storey mixed use building with 148 residential units and 238 square metres (“sq m”) of non-residential gross floor area at grade.

3The Tribunal was advised prior to the Hearing that the Parties had reached a settlement which would be presented to the Tribunal for consideration.

LEGISLATIVE TESTS

4In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.

HEARING

5The Tribunal received and marked the following:

Exhibit 1: Affidavit of Service (previously marked)

Exhibit 2: Revised Appellant Document Book

6The only witness called by the Appellant was Michael S. Goldberg, a Land Use Planner who, upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty form, was qualified by the Tribunal to provide opinion evidence in land use planning.

Summary of Revisions

7Mr. Goldberg provided a summary of the revisions made to the proposal as a result of the settlement. They include (but are not limited) to the following:

Description	Initial Proposal	Final proposal
Reduction in units	183 units	148 units
Reduction in GFA	13,923.0 sq m	11,461.0 sq m
Reduction in FSI	6.61 times the area of the lot	5.44 times the area of the lot
Increase in ground floor commercial space	185.0 sq m	238.0 sq m
Decrease in overall building height	14-storeys (44.80 m)	11-storeys (35.15 m)
Reduction in front yard stepbacks	a series of 7 stepbacks above the fifth storey	a series of 4 stepbacks above the sixth storey
Indoor amenity space	366 sq. m (2.0 sq m/unit) located on the ground floor	315 sq. m (2.12 sq m/unit) located on the ground floor
Outdoor amenity space	217 sq. m (1.18 sq m/unit) located on the ground floor 161 sq. m (0.87 sq m/unit) located on the 14th floor	155 sq. m (1.04 sq m/unit) located on the ground floor 289 sq. m (1.95 sq m/unit) located at the mechanical penthouse floor

8As a result of the reduction from 183 units to 148 units, the proposal now has a unit breakdown of:

a. 55 (37.16%) 1-Bedroom units; b. 47 (31.76%) 1-Bedroom + Den units; c. 15 (10.14%) 2-Bedroom units; d. 15 (10.14%) 2-Bedroom + Den units; e. 15 (10.14%) 3-Bedroom units f. 1 (0.68%) 3-Bedroom + Den unit -------------------------------------------------------------- 148 (100%) Total

Supporting Reports and Studies

9The proposal was supported by the following plans and/or reports:

a. Planning Rationale Report: KFA Architects and Planners Inc. b. Architectural Plans: KFA Architects and Planners Inc. c. Landscape Architecture Plans: Adesso Design Inc. d. Arborist Report and Tree Preservation Plan: Jack Arboriculture Inc. e. Sun / Shadow Study: KFA Architects and Planners Inc. f. Transportation Impact Study: Nextrans Consulting Engineers g. Functional Servicing and Stormwater Management: Cole Engineering Group Ltd. h. Pedestrian Wind Study: Novus Environmental i. Noise Impact Study: Sonair Environmental j. Geotechnical Report, Palmer k. Hydrogeological Study: Palmer l. Compatibility/Mitigation Study: Sonair Environmental

Subject Site

10The Subject Site is currently vacant but was previously used for a gas station and car wash. To the east, directly adjacent to the Subject Site, is an 11-storey mixed-use building that is currently under construction and to the west is a one-to-two storey commercial building.

11Mr. Goldberg explained that the Subject Site is “located on the south side of The Queensway, midblock between Plastics Avenue to the east and Canmotor Avenue to the west and is two blocks east of the intersection of Islington Avenue and The Queensway, in the former City of Etobicoke.”

12The Subject Site is:

a) a regularly shaped rectangular lot measuring 2,172.50 sq m (23,384.59 sq. ft) in size and is reduced to 2,107.50 sq m (22,676.90 sq ft) after The Queensway road widening is taken;

b) generally flat, with a frontage measuring approximately 34.16 m along The Queensway, and a depth of 62.26 m;

c) currently occupied by a vacant one-storey car wash (which will be demolished) and is almost entirely paved, with minimal vegetation and no on-site trees or boulevard trees along the road frontages;

d) located within an Avenues on the Urban Structure Map 2 and is designated Mixed Use Areas on Map 15 of the City Official Plan (“OP”);

e) zoned “Limited Commercial – Avenues Zone (AV)” under the Etobicoke Zoning By-law No. 514-2003 (“ZBL”).

13In terms of the local area context, Mr. Goldberg explained that the Subject Site is:

a) on The Queensway corridor which is primarily designated Mixed Use Areas for parcels fronting onto The Queensway, with Employment located to the south, and Neighbourhoods located to the north. Its built form consists of a “mix of commercial uses, two storey mixed-use buildings with commercial at grade and residential above and several mid-rise buildings approved and under construction.”

b) within walking distance of shops, restaurants, and services along The Queensway and is well-served by community, recreational, religious and educational facilities.

c) serviced by bus routes which link to GO Transit and subway service.

d) located approximately 430 m from the onramps to the Gardiner Expressway, which connects to both Downtown Toronto to the east, and the Greater Toronto Area (GTA) to the west.

e) part of a corridor and area of retail and service commercial properties which is undergoing significant development in the form of mid-rise and tall buildings along The Queensway and on the sites between The Queensway and the Gardiner Expressway, between Kipling Avenue and Royal York Road.

Planning Analysis

14Mr. Goldberg provided a very thorough planning analysis for the Tribunal. He opined that the proposal has regard for matters of provincial interest found in s. 2 of the Act, specifically s. 2 (f), (h), (j), (n), (p), (q) and (r). He stated that the proposal:

is well supported by the existing infrastructure … provides for a range of dwelling units which include 102 (68.92%) 1-bedroom units, 30 (20.28%) 2-bedroom units, and 16 (10.82%) 3- bedroom units … will contribute to the economic viability of this Avenues along The Queensway … is located within an Avenue, a land use designation in the City OP where growth is anticipated … [and] is well designed and of high quality which encourages a sense of place from site organization and architectural perspectives.

15It was Mr. Goldberg’s opinion that the proposal is consistent with the PPS, which provides a policy framework that promotes and encourages intensification in locations well-served by municipal infrastructure. He cited many specific policies and stated that the proposal is:

consistent with the PPS relating to intensification, redevelopment and compact form, optimizing the land base and available infrastructure, is transit-supportive, is in a location that intrinsically promotes alternative modes of transportation such as walking and cycling. The Subject Site is an appropriate and optimal location to accommodate the proposed mid-rise, mixed use form of residential and commercial intensification…. In [his] opinion, the Proposed Development will facilitate the intensification of the Subject Site, which is located within a close distance to surface transit routes linking directly to the subway system. Redevelopment of the Subject Site with a mixed-use, mid-rise building will be a contextually optimized use of land, with a denser urban form that will more efficiently utilize existing infrastructure and community facilities in a manner consistent with PPS policy 1.1.1(a). The convenient access to transit promotes the more optimal utilization of transit, minimizing vehicle trips and promoting energy efficiency.

16Mr. Goldberg explained that the GP promotes intensification and optimization of both the land base and infrastructure in order to create complete communities. He opined that the Subject Site, located in a ‘built-up area’, is both appropriate and optimal

in order to “accommodate the proposed mixed use, mid-rise form of residential and commercial intensification.”

17He further explained that the proposal conforms in the following ways to various GP policies, including (but not limited to):

a) s. 1.2.1 - It is a mid-rise form of intensification with various unit typologies, located along an Avenue with regular transit service, as well as the proposed 114 bicycle parking spaces;

b) s. 2.2.1.2 - It is in a Strategic Growth Area where intensification is encouraged and it is served by several bus routes;

c) s. 2.2.2 - It will help to satisfy if not exceed “the minimum projected population growth for this Strategic Growth Area … [It] is very accessible to existing public transit … is well served by [amenities] … [and will] better utilize and optimize the Subject Site”; and

d) s. 2.2.6 – It will, through the variety of units, help to provide a mix of housing options and densities, thereby contributing to a more complete community.

18Mr. Goldberg testified that the proposed development conforms with the OP, specifically the policies related to:

a) Growth Management

b) Employment Areas

c) Avenues

d) Mixed Use Areas

e) Public Realm and Built Form

f) Housing.

19It was his overall opinion that the proposal conforms with the OP for the following reasons:

• The Subject Site is identified as part of an Avenues and a Transit Priority Segment, an area identified to accommodate additional growth;

• The Subject Site is designated Mixed Use Areas, a land use designation also contemplated for growth with additional heights and densities and for a mix of uses compatible and complementary with existing, approved and Proposed Development along this Avenues;

• The overall height of the proposal together with the Proposed Development setbacks and stepbacks, provide for adequate transitions toward The Queensway. The proposed height of 11-storeys supports the policies of the City OP and contextually fits into the existing and planned mid-rise context of the surrounding area;

• The Proposed Development has been designed to adequately limit shadows on streets, open spaces, parks and properties; and

• The proposed unit mix within the building provides for a number of two and three bedroom units that are suitable for families living along The Queensway corridor.

20Mr. Goldberg also spoke to the City’s Mid-Rise Guidelines which contain “performance standards to guide development to achieve mid-rise built form that is moderate in scale and reflects high quality design and materials.” He explained that as provided for in s. 5.3.2.1 of the OP, these guidelines are not to be given the same status as OP policy, but rather to be used flexibly with discretion and based on context.

21It was his opinion that:

the Proposed Development has been designed to generally satisfy the Mid-Rise Guidelines. As part of The Queensway Avenues Study, a Tree Planting Strategy and Design Guidelines were developed for the area where the site is located. These Guidelines were created to promote a coordinated approach for the development of The Queensway Avenue and serve as a complement to other more general City of Toronto Guidelines and Official Plan policies. The intent of the Guidelines is to foster creation of a high quality, safe urban environment with attractive streetscapes, pedestrian friendly public and semi-public open spaces, and a consistent, vibrant street frontage.

22It was Mr. Goldberg’s overall opinion that the proposed development has regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS, conforms with the GP and the OP and represents good land-use planning in the public interest.

FINDINGS

23The Tribunal accepts the uncontroverted testimony of Mr. Goldberg and is satisfied that the proposed ZBA is consistent with the PPS and conforms to the OP. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and is satisfied that the proposed ZBA represents good planning and is in the public interest, specifically as it will provide a range of housing options located near public transit, infrastructure and amenities, which will contribute to a more complete community.

ORDER

24THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [25] below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.

25The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:

1. The Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to: City Solicitor and the Chief Planner and Executive Director, City Planning and shall include the following:

i. a minimum of 10 percent of the dwelling units on the lands must be three-bedroom units and a minimum of 20 percent of the dwelling units on the lands must be two-bedrooms units; and

ii. any mitigation and/or restrictions on the proposed built form to address the accepted and peer reviewed Land Use Compatibility and Mitigation Study satisfactory to the Chief Planner and Executive Director, City Planning.

2. The Tribunal is advised that the Applicant has provided a revised Functional Servicing Report, including confirmation of water and fire flow, sanitary, and storm water capacity, and Storm Water Management Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water.

3. The Tribunal is advised that the Applicant has submitted a revised Transportation Impact Study to the satisfaction of the General Manager, Transportation Services.

4. The Tribunal is advised that the Applicant has made satisfactory arrangements with the City and has entered into the appropriate agreements 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, Storm Water Management Report, and the Transportation Impact Study accepted by the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water, and the General Manager, Transportation Services.

5. The Tribunal is advised that the Applicant has provided space within the development for installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Sewers Chapter 681-10, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.

6. The Tribunal is advised that the Applicant has submitted a revised Landscape Concept Plan, Soil Volume Plan, and Tree Preservation Plan, and all tree preservation matters are resolved, all to the satisfaction of the General Manager, Parks, Forestry, and Recreation.

7. The Tribunal is advised of the Receipt of the City Council resolution approving the identification of the Subject Site as a Class 4 Property.

8. The Tribunal is advised that both the submitted Noise and Vibration Feasibility Study and the Land Use Compatibility and Mitigation Study have been peer reviewed by third-party consultants retained by the City of Toronto at the Applicant's expense and the Applicant has secured any mitigation measures and recommendations of the peer review with the design of any required mitigation measures to be secured through the site plan application review process, all to the satisfaction of the Chief Planner and Executive Director, City Planning.

9. The Tribunal is advised that the Applicant has submitted updated Wind Studies, including a wind tunnel test complete with a statistical wind analysis to determine the impacts and efficacy of the recommended wind mitigation measures, with the design and construction of any required mitigation measures to be secured through the site plan application review process, all to the satisfaction of the Chief Planner and Executive Director, City Planning.

26The Panel 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.

27If 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 [25] above have been satisfied, and do not request the issuance of the Final Order, by Friday, October 11, 2024, 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 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.

28The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“S. Bobka”

S. BOBKA MEMBER

Ontario Land Tribunal

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

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

ATTACHMENT 1