Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 11, 2022
CASE NO(S).: PL200354
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 20 York Inc.
Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment
Existing Designation: Mixed Use Areas
Proposed Designated: Mixed Use Areas
Purpose: To permit the development of a 48 storey office building
Property Address/Description: 149, 151, 171 Front Street West, 7 Station Street, 20 York Street
Municipality: City of Toronto
Approval Authority File No.: 14 122777 STE 20 OZ
OLT Case No.: PL200354
OLT File No.: PL200354
OLT Case Name: 20 York 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: 20 York Inc.
Subject: Application to amend Zoning By-law No. 595-2007 - Refusal or neglect of City of Toronto to make a decision
Existing Zoning: CR Block 6
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit the development of a 48 storey office building
Property Address/Description: 149, 151, 171 Front Street West, 7 Station Street, 20 York Street
Municipality: City of Toronto
Municipality File No.: 14 122777 STE 20 OZ
OLT Case No.: PL200354
OLT File No.: PL200355
Heard: December 1, 2021 by video hearing
APPEARANCES:
Parties
20 York Inc. (the “Appellant”)
Counsel
J. Cheng C. Lantz
City of Toronto (the “City”)
A. Suriano M. Mahoney S. Mazzuca (student-at-law)
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON DECEMBER 1, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal are appeals under the Planning Act (the “Act”), s. 22(7) and s. 34(11), arising from City Council’s failure to make a decision on the Appellant’s Official Plan Amendment (the “OPA”) and Zoning By-law Amendment (the “ZBLA”) applications within the statutory timelines prescribed under the Act.
2The Subject Property is an irregularly shaped parcel, located south of Front Street West and north of the rail corridor, between York Street to the east and Lower Simcoe Street to the west, and are a assembly of multiple lots municipally known as 149, 151, 171 Front Street West, 7 Station Street, and 20 York Street, City of Toronto (the "Property")
3In February 2014, an application seeking an OPA and ZBLA was made to redevelop the Property with a 48-storey office building. Although City Council approved the requested amendments in principle, subject to certain pre-conditions, the implementing by-laws were never enacted by Council.
4In March 2019, the Appellant filed a resubmission with the City, featuring a redesigned development scheme for the Property. This revised scheme proposed changes to the building design, additional non-residential use permissions, and increased height and density.
5In July 2020, the Appellant filed a further resubmission with the City, incorporating refinements to the development proposal. The revised scheme included a 52-storey building with approximately 116,682 square metres (“m2”) of new commercial Gross Floor Area (“GFA”) and 32,362 m2 of retained GFA. The programming of the building involved retail and office uses, as well as a new data centre.
6The final revision and proposal before the Tribunal involves a 54-storey non-residential building, with a maximum height of 300 metres (“m”), including mechanical penthouse. The proposed development includes retail uses in the podium on the first three floors of the building, six storeys of data centre and related uses, and forty (40) floors of office uses. A total of 142 vehicular parking spaces are proposed within basement levels 2 to 4. Further, the proposed overall development is seeking to have maximum total new GFA of 135,000 m2, which, as shown on the present plans, and includes 110,143 m2 of office GFA, 7,985 m2 of data centre GFA, and 2,927 m2 of retail GFA. Approximately 28,544 m2 of existing GFA in the 149-171 Front Street West data centre and 20 York Street building is proposed to be retained (all the above collectively referred to as, the “Proposal”).
7Under the City Official Plan (the “OP”), the Property is located within the Downtown and Central Waterfront and the Financial District. In terms of land use, the Property is designated as Mixed-Use Areas, which allows for a broad array of residential, office, retail, and institutional uses. The OP directs most of the City's growth in office, retail, service employment, and housing toward Mixed-Use Areas. The Property is also subject to the Railway Lands East Secondary Plan (the "Secondary Plan"), which designates the lands as Mixed-Use Areas "A" within Precinct 7. Under this Secondary Plan, Mixed-Use Areas "A" is regarded as a commercial extension of the existing Financial District and an appropriate location for the primary concentration of office uses with the plan area.
8In terms of zoning, the Property is subject to the Railway Lands East Area A Zoning By-law, which was passed by City Council as By-law No. 168-93, as amended by By-law No. 595-2007. The Property is zoned CR Block 6, which permits a range of non-residential uses, subject to certain development standards. The Property is neither subject to the citywide Zoning By-law No. 569-2013 nor the former City of Toronto Zoning By-law No. 438-86.
9An eight (8)-storey non-residential building is currently located at 151 Front Street West and one (1) to four (4)-storey commercial building containing an enclosed pedestrian walkway, known as the “SkyWalk”, is located at 20 York Street. A private driveway and surface parking area is located at 7 Station Street, with vehicular access to the site via York Street and Simcoe Street.
10In order to permit the proposed redevelopment of the Property, it is necessary to amend the Secondary Plan to permit the additional density sought. An amendment to the Zoning By-law is also needed to permit an increase in height and density, as well as to establish development standards for the redevelopment proposal.
11The City and Appellant have come before the Tribunal with all contested issues resolved, and the matter having been converted to a settlement hearing.
Applicable Legislation and Policies
12Land use planning in Ontario is a policy-led system implemented in hierarchical fashion. This system is deliberately crafted to recognize that there cannot be a one-size fits all approach to implementing policy framework, given the diversity of Ontario’s local communities. As such, the broader Provincial policies and objectives are to be implemented by each municipality through their Official Plan (“OP”), Zoning By-laws, issue-specific guidelines, etc.
13Although the Parties have settled their issues, the Tribunal must still determine if the proposal meets provincial interests and municipal policy framework. In adjudicating the appeal, the Tribunal must have regard to matters of provincial interest enumerated in s. 2 of the Act. The Tribunal must be satisfied that the proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”) and pursuant to s. 3(5) of the Act. Further, the Tribunal must also find that the proposal conforms with policies of the provincial plan: A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”). Lastly the Tribunal must be satisfied with the proposal’s conformity with the City OP, and that it represents good land-use planning in the public interest.
THE HEARING
14The Tribunal affirmed Benjamin Hoff. Provided in Exhibit 5 was his Acknowledgement of Expert’s Duty form and Curriculum Vitae. Having reviewed both and having heard viva voce his credentials with no objection, the Tribunal qualified Mr. Hoff to provide opinion evidence in the field of land-use planning.
15Mr. Hoff provided his viva voce testimony to the Tribunal as well as relied on written evidence found in:
Exhibit 1- Architectural Drawings (June 30th, 2021)
Exhibit 2- Visual Exhibits (November 2021)
Exhibit 3- Joint Document Book
Exhibit 5- Evidence Outline of Benjamin Hoff
16Mr. Hoff provided a brief history of the application and advised the Tribunal his firm had been retained by the Appellant in 2003. He highlighted as has been reviewed in the introduction of this decision, this proposal has a long history. He personally has been working on the file since 2019.
The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
17Mr. Hoff provided the Tribunal his expert opinion on the Proposal’s regard to the Act. In his opinion the Proposal with its revisions are appropriate and have regard to the Act, particularly to matters of provincial interest in s. 2 and all relevant subsections within, and including but not exclusive to:
The conservation of features of significant architectural, cultural, and historical interest;
The adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
The adequate provision of employment opportunities;
The protection of the financial and economic well-being of the Province and its municipalities;
The coordination of planning activities of public bodies;
The resolution of planning conflicts involving public and private interests;
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 built form that is well designed, encourages a sense of place and provides for high quality public spaces.
The Provincial Policy Statement
18In the opinion of Mr. Hoff, the Proposal is consistent with the PPS. He provided evidence that the Property is within the identified settlement area, which shall be the focus of growth and development and opined the Proposal is an efficient use of land, infrastructure and is transit supportive. Bringing the Tribunal to s. 1.1.3.1 and s.1.1.3.2, he opined the Proposal is consistent with these policies.
19Policy 1.3.1 states that planning authorities shall promote economic development and competitiveness by providing for an appropriate mix and range of employment, institutional and broader mixed uses to meet long-term needs; by encouraging compact, mixed-use development that incorporates compatible employment uses; and by ensuring that necessary infrastructure is provided to support current and projected needs.
20Policy 1.6.1 directs infrastructure and public services to be integrated with land use planning and growth management so that they are provided in an efficient manner to accommodate current and projected needs.
21Policy 1.7.1 promotes long-term economic success, particularly through improving the vibrancy of the Downtown, improving infrastructure, and encouraging possibilities for economic development.
22Policy 1.8.1 supports energy conservation and efficiency through reduced greenhouse gas emissions by encouraging development of compact form, active transportation and transit, focusing of major employment on sites that are well served by transit, improving the mix of employment and housing, and maximizing energy efficiency and conservation.
23It was the opinion of Mr. Hoff that the Proposal before the Tribunal is consistent with all the above policies and all relevant PPS policies. The proposed development is a compact built form that represents an efficient and optimized use of land, given its intensification of a centrally located site in the City’s Downtown, that is well served by existing infrastructure and services, and in close proximity to rapid transit. The Proposal will also contribute to long-term economic prosperity by expanding the necessary telecommunications infrastructure and introducing employment uses that will contribute to economic development and meeting long-term needs of the area while supporting and building a strong community.
The Growth Plan
24Pertaining to conformity to the Growth Plan, Mr. Hoff was of the opinion the Proposal conforms to all relevant policies and listed for the Tribunal, key points which focused on:
It’s location within a settlement area (s. 2.2.1.2)
Transit support and its likely imminent identification within a major transit station area – as it abuts Union Station (s.2.2.4) and (s.2.2.4.9)
Urban Growth Centre / intensification (s. 2.2.3)
The augmentation and contribution to the provincial mandated 400 residents and jobs per hectare (s.2.2.3.2a)
Infrastructure (existing and growth of the data centre) (s.3.2.8.1)
Compact built form development
Appropriate parking reduction
Retention of cultural heritage resources (s.4.2.7)
25Section 2.2.5 of the Growth Plan focuses on employment and includes policies to promote economic development and competitiveness. Policy 2.2.5.2 directs major office development to urban growth centres, major transit station areas or other strategic growth areas with existing or planned frequent transit service. Policy 2.2.5.3 further directs retail and office uses to locations that support active transportation and have existing or planned transit. Mr. Hoff opined the Proposal conforms with the above policies as well as all relevant Growth Plan policies
The Official Plan
26The Property is subject to the City’s OP. Since the time of the Appellant’s application, OPAs Nos. 406, 479 and 480 have come into force. While these OPAs were approved after the applications were submitted, Mr. Hoff opined that the Proposal generally conforms and maintains the intent of these newer OPAs and conforms to the operative OP that the Property is subject to.
27The Property is located within the Downtown and Central Waterfront on Map 2. Policy 2.2.2 directs growth to Downtown, as well as Centres, Avenues and Employment Areas in order to make efficient use of municipal land, infrastructure and services, and concentrate jobs and people in areas well served by transit that creates assessment growth and contribute to the City’s fiscal health (Policies 2.2.2.a,b,c,d).
28Section 2.2.1 of the Official Plan outlines specific objectives for the Downtown, highlighting the importance of its role as the city’s economic and cultural hub which is critical to the health and prosperity of the entire surrounding region
29Policy 2.2.1.6 directs that the “Downtown Toronto Urban Growth Centre will be planned to optimize the public investment in higher order transit within the Centre and thus should exceed the minimum combined gross density target of 400 residents and jobs per hectare set out in the Growth Plan.” Policy 2.2.1.7 states that Downtown will accommodate development that “builds on the strength of Downtown as the premier employment, institutional, retail, arts and culture, and entertainment centre in the Greater Golden Horseshoe; advances economic competitiveness and helps to attract provincially, nationally and internationally significant investment; and focuses on the Financial District as the prime location for the development of prestige commercial office buildings.”
30Mr. Hoff opined the proposal helps implement the policies related to Downtown with approximately 130,000 m2 of new non-residential GFA, within a new high-quality office building which contributes to the employment growth in Downtown, on a site adjacent to Union Station which optimizes public transit investment.
31Section 2.4 sets out a number of policy directions to integrate transportation and land use planning, emphasizing a more intense mixed-use pattern of development to minimize long-term infrastructure costs, reduce car dependency and make public and active transportation more attractive. Mr. Hoff opined that the Proposal is concentrated in an area well served by higher order transit and proposes infrastructure to support active transportation including a total of 465 bicycle parking spaces.
32Speaking to policies of Urban Design, Mr. Hoff opined the Proposal conforms in a manner that is attractive and inline with the City’s vision. Citing policies dealing with public realm, Mr. Hoff directed the Tribunal to s. 3.1.1, and opined the Proposal incorporates private and public space appropriately and is designed to expand and enhance walking and cycling networks. He further opined that the Proposal promotes street-oriented development with access and frontage from street edges in a design that is accessible, comfortable, and safe as well as integrated into the local network of pedestrian movement.
33Mr. Hoff also noted that the Proposal seeks to enhance the public realm through the streetscape enhancements to Station Street for pedestrian comfort and movement, as well as proposing a new internal elevated pedestrian connection (Skywalk) within the building, which will be integrated into the wider PATH network and connect to Union Station, the Union-Pearson Express, and the CN Tower and Rogers Centre.
34Sections 3.1.2 and 3.1.3 contain policies regarding built form and building types. OPA 480 and OPA 479 introduced new and revised policies to these Sections. Mr. Hoff again opined that although not operative it should be noted that in his opinion the Proposal takes direction and conforms to these in force policies. Policy 3.1.2.1 provides direction and in Mr. Hoff’s opinion the Proposal organizes and locates the development to enhance its context, including adjacent streets, parks and open space, as well as the safety, comfort, and experience of pedestrians, through providing additional setbacks and open space where appropriate. These policies also speak to locating building entrances on prominent building façades along public streets, which the Proposal has provided.
35Section 3.1.5 contains specific policies regarding the preservation of heritage resources. Mr. Hoff opined the Proposal ensures that the integrity of the heritage property’s cultural heritage value and attributes will be retained, as is required in s. 3.1.5.5. Further the Proposal provides adaptive re-use of properties as directed by s. 3.1.5.6.
36Section 3.5 identifies how Toronto’s economic health can be sustained and strengthened, and includes policies that promote transit-oriented office growth in the Downtown and the Centre Waterfront, among other intensification areas in the City that are supported by existing and approved transit (Policy 3.5.1.2.a). Policy 3.5.1.5 speaks to investment on the part of public agencies or through partnership agreements to ensure that key infrastructure including telecommunications networks is maintained, improved and extended to support current and future employment needs.
37Mr. Hoff opined that the introduction of over 110,143 m2 of office uses within the Downtown adjacent to Union Station and 7,985 m2 of integral new data centre uses, expanding upon the existing data centre at 149-171 Front Street West (the largest and most crucial hub for internet and telecommunications infrastructure in Canada), is a key infrastructure project, and the Proposal will without doubt contribute to the City’s economic vitality and competitiveness.
38In Mr. Hoff’s opinion the Proposal conforms with the OP, including policies for the Downtown & Central Waterfront and Mixed-Use Areas.
39Mr. Hoff opined the Proposal is in keeping with the goals of the Downtown Secondary Plan. The scale and built form of the development, and the proposed employment uses are appropriate for its context on the western edge of the Financial District, and will help reinforce Downtown as an economic driver for the city, region, province, and country. The proposed development will encourage active transportation and transit use through improvements to the pedestrian realm both within (Skywalk and PATH) and surrounding the building.
40It was Mr. Hoff’s opinion that the Proposal is in keeping with the objectives of the Railway Land East Secondary Plan, as well as policies for Mixed-Use Areas “A”. However, amendment Policy 10.9 is required to permit the GFA of the current Proposal.
41In summary Mr. Hoff concluded that in his opinion the Proposal conforms to the OP and OPAs in force (highlighting the OPAs are not operative to the Proposal, as the applications were complete prior to the implementation of the OPAs). However, in his opinion it is important to note the Proposal has gone to great lengths to embed the current vision and objectives of Council, which have been adopted and implemented by the OPAs, and seen within the design and revisions of the Proposal.
Zoning By-laws
42The Property is subject to Railway Land East Area A, Zoning By-law No. 168-93. It is Mr. Hoff’s opinion that the Proposal meets the general intent of By-law No. 168-93. Various provisions of By-law No. 168-93 applying to the Property include maximum density and height, parking rate. Permitted uses have since been amended by site-specific By-law No. 595-2007, which is reviewed in the following paragraph.
43Site-specific ZBLA No. 595-2007 also applies to the property. By-law No. 595-2007 was enacted in 2007 with previous approvals sought on the Property and added 151 Front Street West to By-law No. 168-93.
44Pursuant to Section 37 of the Act, By-law No. 595-2007 permits a lengthy list of permissions, subject to provisions to be secured in a Section 37 Agreement.
45Mr. Hoff opined the Proposal meets the general intent of By-law No. 595-2007. The proposed office, retail, and technology centre uses are permitted. However, as noted, a ZBLA is required to implement the proposed development, including but not limited to amendments to the provisions for maximum height and density, built form provisions, including the minimum required setbacks and stepbacks, and revisions to the minimum requirements for parking spaces and other matters.
46The City and Appellant have agreed to terms and Section 37 provisions allowing for height and density increases beyond By-law No. 595-2007, which is now before the Tribunal for approval.
Design Guidelines
47In May 2013, the City adopted the city-wide Tall Buildings Design Guidelines (the “Guidelines”), which implement the policies of the OP, offers design directions, and establishes a unified set of performance measures related to site context, site organization, general building design, building bases, towers, and the pedestrian realm.
48Mr. Hoff opined the Proposal is generally in keeping with the performance measures of the Guidelines. Despite being a large office tower, the Proposal adequately limits shadow impacts onto surrounding parks and open spaces. The tower provides adequate separation distance to other towers in the surrounding context (exceeds the minimum 25 metres).
49The proposed tower features large floor plates, beyond the maximum 750 m2 recommended in the Guidelines. Large floor plates are typical of office developments, and required to make commercial developments viable, which the Guidelines recognize and provides flexibility on a site-specific basis where adequate tower separation, setbacks, and stepbacks are achieved. The building also has a distinct tower top with an iconic green “crown” that will contribute to Toronto’s skyline and provide an amenity space for building occupants.
50Mr. Hoff opined the Proposal before the Tribunal provides a built form that is appropriate and contextual in relation to the surrounding built form and land use context. In closing the proposal meets the overall intent of the Guidelines and conforms to the tall building policies of the OP (s. 3.1.3.7-10).
Summary and Planning Opinions
51Mr. Hoff opined that the Proposal as it has evolved and through its numerous revisions is in the public interest. It allows for a number of identified policy objectives, and delivers a significant amount of new non-residential GFA, contributing to employment growth in the financial core, supported by Union Station’s multiple high-order transit connections. It also seizes the unique opportunity to expand upon a critical telecommunications infrastructure in a central Downtown location.
52Further, in Mr. Hoff’s opinion, the Proposal provides a number of community benefits including:
An indexed payment of $5,000,000 to the City to be allocated towards the following:
$1,750,000 towards public art;
$1,000,000 towards new off-site affordable housing;
$1,000,000 towards arts and culture in Ward 10;
$1,000,000 for the study of and/or capital investment in the implementation of the Downtown Parks and Public Realm Plan; and
$250,000 for the City of Toronto’s Residential School Survivor’s Legacy Structure.
53In Mr. Hoff’s opinion, these community benefits pursuant to Section 37 of the Act, are appropriate and have been agreed to in principle by the Parties.
54In conclusion, it was Mr. Hoff’s expert opinion that the proposed development, including the proposed OPA and ZBLA, have regard to s. 2 of the Act and are consistent with the PPS. They and are in conformity with the Growth Plan and the City OP and represent good land use planning and are in the public interest. In Mr. Hoff’s professional opinion, the Tribunal should approve the OPA and ZBLA in principle and withhold its final order pending the fulfilment of the conditions, as outlined in Exhibit 4 and provided to the Tribunal for its consideration.
Analysis and Disposition
55The Tribunal, having reviewed all evidence provided in Exhibits 1-5, and having heard the viva voce opinions of Mr. Hoff, accepts the uncontroverted expert land-use planning evidence provided by the witness. The Tribunal finds that the proposed planning instruments, will permit the development and have appropriate regard for matters of Provincial Interest and s. 2 of the Act. The Tribunal also finds that the OPA and ZBLA are consistent with the PPS, conform to the Growth Plan, the City OP and Secondary Plan, and represent good land-use planning, and are in the public interest.
56The Tribunal, having been provided evidence and having heard from Mr. Hoff that Section 37 contributions proposed meet the provisions set out in the Act, find its use to be appropriate and acceptable.
INTERIM ORDER
57The Tribunal Orders that the appeal is allowed in principle, and the Official Plan for the City of Toronto is to be amended as set out in Attachment 1 to this Order.
58The Tribunal Orders that the appeal is allowed in part and the Zoning By-law Amendment is approved in principle.
59The Tribunal will withhold its final Order pending completion of the items set out in Attachment 1, to be read as amended in accordance with this Decision and Order.
60If the parties have not completed the items in Attachment 1 within six months of the issuance of this Decision, the parties shall provide a written status update to the Tribunal’s Case Coordinator by that same date.
61The Member may be spoken to, at a time that is convenient to the Tribunal and the Parties, should any difficulties arise in finalizing the items set out in Attachment 1.
“M. Russo”
M. russo
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.