Birchcliff Developments Inc. v. Toronto (City), 2022 CanLII 123630

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 30, 2022

CASE NO(S).: OLT-21-001332

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

Applicant and Appellant: Birchcliff Developments Inc.

Subject: Application to Amend the Official Plan – Refusal to make a decision

Description: To permit the construction of a 279-unit, 9 storey mixed use development

Reference Number: 20 203471 ESC 20 OZ

Property Address: 1615-1641 Kingston Road and 50-52 Birchcliff Avenue

Municipality/UT: Toronto

OLT Case No.: OLT-21-001332

OLT Lead Case No.: OLT-21-001332

OLT Case Name: Birchcliff Developments Inc. 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: Birchcliff Developments Inc.

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

Description: To permit the construction of a 279-unit, 9 storey mixed use development

Reference Number: 20 203471 ESC 20 OZ

Property Address: 1615-1641 Kingston Road and 50-52 Birchcliff Avenue

Municipality/UT: Toronto

OLT Case No.: OLT-21-001333

OLT Lead Case No.: OLT-21-001332

Heard: October 24 and 31, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Birchcliff Developments Inc.

J. Hoffman

City of Toronto

K. Czajkowski

Birch Cliff Village Community Residents Association

I. Flett

MEMORANDUM OF ORAL DECISION DELIVERED BY hugh s. wilkins ON OCTOBER 31, 2022 AND ORDER OF THE TRIBUNAL

1On October 24 and 31, 2022, the Tribunal held a settlement hearing in regard to the appeals brought by Birchcliff Developments Inc. (“Appellant”) regarding the failure of the City of Toronto (“City”) to make decisions on the Appellant’s applications for official plan and zoning by-law amendments to facilitate development on the lands located at 1615-1641 Kingston Road and 50-52 Birchcliff Avenue (“subject lands”).

2At a Case Management Conference held on January 24, 2022, the Tribunal granted Party status to the Birch Cliff Village Community Residents Association, the Toronto Lands Corporation as agent for the Toronto District School Board (“Toronto Lands Corporation”), and John Hartley in his personal capacity. On March 22, 2022, it granted Party status to the Tenants Have No Rights Association.

3As a result of settlement discussions, the Toronto Lands Corporation formally withdrew from the proceedings by email to the Tribunal, dated July 11, 2022. Mr. Hartley and the Tenants Have No Rights Association formally withdrew from the proceedings by letter to the Tribunal, dated September 27, 2022.

4In October 2022, the Appellant informed the Tribunal that it had reached a proposed settlement with the remaining Parties. The Tribunal convened a settlement hearing on October 24 and 31, 2022.

5At the settlement hearing on October 24, 2022, two members of the Tenants Have No Rights Association (Tracy Christoforou and Karen Azucar) stated that they had not agreed to the Association’s withdrawal, were opposed to the proposed settlement, and had not properly received and reviewed the proposed settlement materials. The Tribunal directed that the proposed settlement materials be forwarded to Ms. Christoforou and Ms. Azucar for their review and that they communicate any concerns that they have and then consult with the Parties regarding those concerns. The Tribunal did not grant Party status to Ms. Christoforou or Ms. Azucar and did not re-instate Party status to the Tenants Have No Rights Association; but it allowed Ms. Christoforou and Ms. Azucar to participate as Participants.

6At the resumption of the settlement hearing on October 31, 2022, the Tribunal heard evidence and submissions from the Parties in support of the proposed settlement and asked questions to and received inputs from Ms. Christoforou and Ms. Azucar regarding their concerns.

ISSUES

7When adjudicating official plan and zoning by-law amendment appeals, the Tribunal must determine whether the proposed amendments:

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

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

c) represent good planning.

8With regard to zoning by-law amendment appeals, the Tribunal must also determine whether the proposed amendment conforms with applicable official plans (in this case, the City’s Official Plan).

9For both types of appeals, the Tribunal must 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 matters under s. 2.1(2) of the Planning Act.

EVIDENCE AND SUBMISSIONS

10The Appellant filed an affidavit affirmed by Louis Tinker, dated October 19, 2022, in support of the proposed settlement. Mr. Tinker is a land use planner. He also provided oral testimony at the settlement hearing. The Tribunal qualified him to provide opinion evidence in the area of land use planning.

11The City and the Birch Cliff Village Community Residents Association support the proposed settlement. Neither of them provided evidence at the settlement hearing.

12At the settlement hearing, Mr. Tinker stated that the subject lands are made up of five adjacent properties on Kingston Road and Birchcliff Avenue. He said the existing buildings on the subject lands include a vacant two-storey building, two vacant one-storey dwellings, one vacant two-storey dwelling, and three 2.5-storey walk-up rental residential apartment buildings (Lenmore Court). He said Lenmore Court has 32 rental units, 30 of which are presently occupied. He said there is also a rental unit in the dwelling located at 52 Birchcliff Avenue.

13Mr. Tinker said the portion of the subject lands on Kingston Road are designated as Mixed Use Areas under the City’s Official Plan and the portion on Birchcliff Avenue is designated as Neighbourhoods.

14He said the portion of the subject lands fronting on Kingston Road where the mid-rise building is being proposed is presently zoned Commercial Residential (CR) under the former City of Scarborough Zoning By-law No. 8786. He stated that this existing zoning permits various uses including dwelling units, retail stores, retirement homes and a minimum height of two storeys and a maximum height of six storeys.

15He said the portion of the subject lands fronting on Birchcliff Avenue where the low-rise rental apartment building is being proposed is presently zoned Single Family Residential (S) under the former City of Scarborough Zoning By-law No. 8786, which permits various uses, including group homes and single-family dwellings. He said it is additionally zoned under City-wide Zoning By-law No. 569-2013 as Residential Detached, which permits uses including detached dwellings, group homes, shelters and parks. He said these by-laws prescribe a maximum height of two storeys.

16Mr. Tinker stated that the proposed zoning by-law amendment would maintain the Commercial Residential and Residential Detached/Single Family Residential zoning, but would provide new site-specific development standards, including increased heights and densities, new building envelopes, and permission for the proposed uses. He stated that the proposed development would consist of a nine-storey mixed-use building located within the portion of the subject property that is designated as Mixed Use Areas in the City’s Official Plan. It would also include a four-storey apartment building within the Neighbourhoods portion. He said the proposed development would have a combined total gross floor area of 19,612 square metres (“m^2”) and a density of 3.54 times the area of the subject lands. He said the mixed use building would have a total gross floor area of 19,612 m² with 245 apartment and live-work units and 113 m²retail space fronting on Kingston Road. He said the four-storey apartment building would have a total gross floor area of 2,370 m² with 33 rental replacement units. He said there would be a total of 217 underground parking spaces provided for the entire proposed development.

17Mr. Tinker opined that the proposed instruments are consistent with the PPS, providing appropriate intensification for the area and the efficient use of land and infrastructure. He said the proposed development would be located on an arterial road with regular public transit and opportunities for active transportation. He said the subject lands are located close to local amenities and services and the proposed development would have access to existing municipal infrastructure and services.

18Mr. Tinker opined that the proposed instruments conform with the Growth Plan by providing encouraging growth and intensification in an existing built-up area located close to regular transit service and local amenities. He said the subject lands are located within a settlement area where growth and development are encouraged. He said the proposed mixed uses and range and mix of housing options provided by the proposed development would contribute to the achievement of a complete community in the area.

19Mr. Tinker opined that the proposed zoning by-law amendments conform with the City’s Official Plan. He stated that the subject lands are designated as Avenues on Map 2 (Urban Structure) of the City’s Official Plan. He said the portion of the subject lands fronting on Kingston Road is further designated as Mixed Uses Areas and the portion fronting on Birchcliff Avenue is further designated as Neighbourhoods. He opined that the proposed instruments would facilitate development that is compatible with neighbouring buildings and is in keeping with the character of the existing area. He said that the size, height, massing, and setbacks of the proposed buildings are appropriate and provide for transition to adjacent uses without causing adverse impacts to neighbours. He said shadow impacts from the proposed development would be “adequately limited” having regard for the urban context of the area. He said the proposed development implements the broad intent of the City’s 2010 Kingston Road Revitalization Study, which recommended, among other things, increased heights and densities in the area to encourage reinvestment and redevelopment.

20Mr. Tinker opined that the proposed development meets the general intent of the City’s guidelines and policies, including the Growing Up: Planning for Children in New Vertical Communities Urban Design Guidelines, the Mid-Rise Building Guidelines, the Townhouse and Low-Rise Apartment Guidelines, and the Kingston Road Birchcliff Urban Design Guidelines.

21Mr. Tinker stated that the proposed development replaces existing rental units with new rental units on-site with a similar building typology and amenity spaces for tenants. He said the ratio of parking spaces to units that currently exists at Lenmore Court would be maintained for the proposed new rental apartment building.

22Mr. Tinker stated that he had regard to the matters of provincial interest set out in s. 2 of the Planning Act, including those in relation to the orderly development of safe and healthy communities; the adequate provision of a full range of housing, including affordable housing; the adequate provision of employment opportunities; the appropriate location of growth and development; the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; and the promotion of appropriate built form.

23Mr. Tinker said City Council approved the proposed settlement subject to the Tribunal withholding the issuance of its Order until certain conditions are satisfied. Mr. Tinker opined that the requested conditions are appropriate. They are that the final Order be withheld until:

a. the final form of the official plan amendment and the zoning by-law amendments are to the satisfaction of the Chief Planner and Executive Director, City Planning, and the City Solicitor;

b. City Council has approved the rental housing demolition application 20 203480 ESC 20 RH under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006 for the site and, should City Council authorize the application, that the Appellant has entered into an agreement pursuant to Section 111 of the City of Toronto Act, 2006 incorporating securing the replacement rental dwelling units and rents, tenant assistance and other rental related matters, and registered such agreement on title, all to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

c. the Appellant has submitted an addendum to the Traffic Impact Study to the satisfaction of the General Manager, Transportation Services, addressing comments raised in the June 7, 2022 memorandum from the Manager, Development Engineering, Scarborough District; and

d. the Appellant has submitted a revised Functional Servicing and Stormwater Management Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, demonstrating how the development proposal for the site can be serviced and whether existing municipal infrastructure is adequate to support the proposed development.

24Mr. Tinker stated that amendments are required to both the City’s Zoning By-law No. 569-2013 and the former City of Scarborough Zoning By-law No. 8786. Explaining that the draft zoning by-law amendment filed with the Tribunal sets out the substance of the final amendments that will be proposed, he opined that it constitutes good planning. He stated that the final versions of the proposed amendments would be presented to the Tribunal in their appropriate form prior to the Parties’ request for a final Order. Subsequent to the settlement hearing, the Appellant informed the Tribunal on December 23, 2022 that that an amendment to the former City of Scarborough Zoning By-law No. 8786 is no longer required because appeals of the City’s Zoning By-law 569-2013 as they apply to the subject lands have been resolved.

Ms. Cristoforou’s and Ms. Azucar’s Concerns

25After ensuring that Ms. Cristoforou and Ms. Azucar had received the proposed settlement materials at the settlement hearing on October 24, 2022 and having given them time to review the materials and consult with the Parties and others, the Tribunal asked Ms. Cristoforou and Ms. Azucar to state their concerns at the settlement hearing on October 31, 2022. They set out the following concerns:

a. all existing tenants of Lenmore Court must be re-housed on the site and the site of the new rental building must be secured as affordable housing permanently;

b. all new rental units must have adequate light, including those that will be sunken or below grade;

c. the new rental units must have the same size and layouts as the existing units;

d. long-term tenants must have the first choice of units in the new building;

e. long-term tenants must have the right to add their dependents to their leases;

f. there must be a six-week adjournment in these proceedings and support must be provided to the tenants to help them acquire independent legal advice;

g. the Tribunal must provide an up-to-date and detailed presentation on the circumstances in which tenants will be housed;

h. the tenants must be strongly represented in the process under s. 111 of the City of Toronto Act, 2006 and be fully involved in negotiating financial compensation and arrangements;

i. it must be acknowledged on the record that there has been a governance failure given that the collective voices of tenants are not being heard; and,

j. local safe, clean and affordable housing for the tenants must be ensured as well as compensation from the Appellant for any rent differentials during construction.

26Addressing these concerns, Mr. Tinker stated that many of them focus solely on issues relevant to the demolition permit application process under s. 111 of the City of Toronto Act, 2006 and lie beyond the area of land use planning and the subject matter of the proceedings before the Tribunal. He said that all of the units in the proposed low-rise rental apartment building would have adequate light, including those on the ground floor. He said that windows on all floors would be of roughly the same size and number and that, given the proposed setbacks and landscaping, there would be no privacy issues for units on the ground floor. He said it was his understanding that the units in the new building are planned to have the same gross floor area and configuration of bedrooms as the existing units. Mr. Tinker said tenants at Lenmore Court will have the opportunity to be fully engaged in the rental demolition application process under s. 111 of the City of Toronto Act, 2006 and will have an opportunity to express their concerns in that process.

FINDINGS

27Based on the opinion evidence of Mr. Tinker, the Tribunal finds that the proposed instruments are consistent with the PPS and conform with the Growth Plan. It also finds that the proposed zoning by-law amendment conforms with the City’s Official Plan. The Tribunal has had regard to the City’s applicable policies and guidelines and the matters of provincial interest in s. 2 of the Planning Act as well as the information and materials that City Council received in relation to the matter. The Tribunal finds that the proposed instruments constitute good planning.

28The Tribunal has taken into account the concerns raised by Ms. Cristoforou and Ms. Azucar and finds that the planning-related concerns that they have raised have been addressed by the Appellant. The Tribunal encourages Ms. Cristoforou and Ms. Azucar to engage in the public process related to the Appellant’s application under s. 111 of the City of Toronto Act, 2006 and express their relevant concerns in that process.

INTERIM ORDER

29The Tribunal orders that the appeals are allowed, in part, on an interim basis contingent on the satisfaction of the conditions set out in paragraph [30] below and it orders that the official plan amendment, set out in Attachment 1 to this Interim Order, and the zoning by-law amendment, set out in Attachment 2 to this Interim Order, are approved in principle.

30The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:

a. the final form of the official plan amendment and the zoning by-law amendment are to the satisfaction of the Chief Planner and Executive Director, City Planning, and the City Solicitor;

31This Panel Member will remain seized for the purposes of reviewing and approving the final draft of the official plan amendment and zoning by-law amendment and the issuance of the Final Order.

32If the Parties do not submit the final drafts of the official plan amendment and zoning by-law amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [30] above have been satisfied, and do not request the issuance of the Final Order, by Friday, April 28, 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 official plan amendment and 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 appeals.

33The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional time lines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites, and the issuance of the Final Order.

“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.

ATTACHMENT 1

ATTACHMENT 2