1322104 Ontario Inc. v. Toronto (City), 2022 CanLII 37727

Ontario Land Tribunal

Tribunal ontarien de l'aménagement du territoire

ISSUE DATE: May 02, 2022

CASE NO(S).: OLT-22-002213 (Formerly PL200396)

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

Applicant and Appellant: 1322104 Ontario Inc.

Subject: Application to amend Zoning By-law No. 569-2013 and Etobicoke Zoning Code - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Zoning By-law: 569-2013 - RM(u4)(x2) / Etobicoke Zoning Code – RM-1

Proposed Zoning: Zoning By-law: 569-2013 - RM(u4)(x2) Site Specific / Etobicoke Zoning Code – RM-1 Site Specific

Purpose: To permit the redevelopment of the Site into 14, back-to-back, 3-bedroom townhouse units

Property Address/Description: 80 Thirtieth Street

Municipality: City of Toronto

Municipality File No.: 19 262483 WET 03 OZ

OLT Case No.: OLT-22-002213

Legacy Case No.: PL200396

OLT Lead Case No.: OLT-22-002213

OLT Lead Case No.: PL200396

OLT Case Name: 1322104 Ontario Inc. v. Toronto (City)

Heard: March 28-29, 2022 by video hearing

APPEARANCES:

Parties

Counsel

1322104 Ontario Inc. ("Applicant")

Luke Johnston Michael Nemanic

City of Toronto ("City")

Ray Kallio Adam Ward

DECISION DELIVERED K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant proposes to develop a property located at 80 Thirtieth Street, Toronto, (the "Site") as 14 back-to-back, three (3)-bedroom townhouse units within a three (3)-storey built form. The property is notable insofar as it is located adjacent to the Metrolinx Rail Corridor.

2The case before the Tribunal is principally about rail-safety associated with said rail corridor.

3The appeal arises following the City's failure/neglect to make a decision within the statutory timeframe. While the City confirmed that it does not support the development, it called no evidence to oppose it. The City also confirmed that it has no issue with the proposed development from a land use planning or urban design standpoint. The City's concerns are exclusively about rail-safety, albeit without calling any evidence to contest the Applicant's evidence which supports the Applicant's plan from a rail safety standpoint.

4At the outset of the hearing, all of the previously added parties (Kalden Ngodup, Karma Yangchen, Alfred and Paula Engelhardt, Tenzin Yangka, Dawa Dbondup, Kathleen Ivey and William Sneddon), as represented by Frank Serafini, withdrew their party status and did not otherwise participate in the proceedings.

5The result was that the hearing was largely an uncontested event, with evidence provided exclusively by the Applicant's expert witnesses in Land Use Planning (Jim Levac), Urban Design (Eldon Theodore), and Rail Safety (Michael Mikhail), with only brief and generally inconsequential cross examination by the City.

6For the reasons that follow, the Tribunal allows the appeal in part, subject to the provisions of the Order set out below.

Site description and area context

7The Site is a 2,164 square metre ("m²") (0.22 hectare) irregularly shaped parcel municipally known as 80 Thirtieth Street, with 56.6 metres ("m") of frontage on the west side of Thirtieth Street, north of Elder Avenue, adjacent to the south side of the Metrolinx Rail Corridor.

8A commercial surface parking facility currently occupies the Site. Controlled access is provided via a driveway off of Thirtieth Street.

9The Site is generally flat, owing to a large retaining wall extending along its frontage along Thirtieth Street. The ground elevation is lowest in the Site's northeastern quadrant, approaching an underpass structure that extends under the Metrolinx Rail Corridor.

10The property is located within the Long Branch Neighbourhood of the City. Mr. Levac testified that the City defines the Long Branch Neighbourhood as a diverse Neighbourhood, encompassing lands east of Forty Second Street, south of the Metrolinx Rail Corridor, west of Twenty Second Street and north of Lake Ontario.

11Mr. Levac testified that the residential area surrounding the Site is a well-established Neighbourhood, characterized by an eclectic mix of low-rise residential built forms. The Neighbourhood generally consists of various one (1), two (2) – and four (4)-storey dwellings. A selection of mid-rise apartment structures, the Etobicoke Creek, as well as various parks and schools are interspersed within the Neighbourhood. A selection of commercial and mixed-use structures are also present along nearby Lake Shore Boulevard West.

12The Metrolinx Rail Corridor is immediately north. Further north is a continuation of Thirtieth Street and a well-established Employment Area comprised of various low-rise industrial structures and surface parking areas.

13Further east of the Site is a segment of the Long Branch Neighbourhood predominantly comprised of low-rise residential dwellings. Laburnham Park is also situated in this area, south of the Metrolinx Rail Corridor. Built forms are predominately detached dwellings. A selection of semi-detached dwellings, street-oriented townhouse dwellings and rear lane townhouse dwellings are also present in this area.

14Residential dwellings are also situated immediately west of the Site. Further west is a further segment of the Long Branch Neighbourhood comprised of low-rise residential dwellings. Built forms are predominantly detached and semi-detached dwellings in this area. Mr. Levac noted that a mixed-use development comprised of eleven (11) development blocks of stacked, back-to-back townhouses, a retail block comprised of a multi-tenant structure, as well as a new public park (Syd Cole Park) is located southwest of the Site. Mr. Levac testified that this development, referred to as Minto Long Branch, is to be expanded easterly toward Thirty Second Street on the site of a former automotive dealership complex. A Toronto Public Library Branch and commercial structures are also present along Lake Shore Boulevard West.

15A detached dwelling is immediately south of the Site. Further south is a continuation of the Long Branch Neighbourhood comprised of low-rise residential dwellings. Mr. Levac testified that built forms are predominantly detached dwellings. He noted that a selection of street-oriented townhouse dwellings are present to the southeast. More specifically, this includes two (2) townhouse developments. The first development provides for nine (9) blocks of townhouse dwellings, located on the lands municipally addressed as 14 – 29 Twenty Ninth Street and 9 – 19 Skeens Lane. The second townhouse development provides for five (5) blocks of townhouse dwellings, including three (3) blocks of back-to-back townhouse dwellings, located on the lands municipally addressed as 68 Daisy Avenue.

16Mr. Levac testified that, given the age of the Neighbourhood, renovations, additions and new construction is common. He opined that the Neighbourhood of the Site is desirable where ongoing renewal of the housing stock appears to be generally supported by the City.

BACKGROUND AND Description of the PROPOSED DEVELOPMENT

17Mr. Levac testified that, in December 2019, Zoning By-law Amendment Applications were filed with the City to facilitate redevelopment of the Site. More specifically, these original Applications were to permit the creation of fourteen (14) back-to-back, four (4)-storey townhouse dwellings arranged in one (1) development block. On March 2, 2020, the Applications were deemed complete by City of Toronto Planning Staff.

18In September 2020, the Applications were appealed for City Council's refusal or neglect to make a decision within the prescribed 90-day timeframe.

19Mr. Levac testified that, following the appeal of the original Applications, the Applicant continued to have dialogue with the City and representatives of the neighbourhood association in an effort to resolve technical review and public concerns about the proposal. This dialogue culminated in a revised development proposal for the Site. The revised proposal is what is now before the Tribunal for consideration.

20Mr. Levac testified that the revised Proposal features the following characteristics:

• 3-storey (rather than the original 4-storey) back-to-back townhouse dwelling units.
• A total residential gross floor area of 2,062.96 m²;
• A 20.0 m separation between the adjacent rail corridor and the proposed development;
• A 1-storey, detached covered garage structure along the northern property line. This structure will accommodate additional residential parking plus visitor parking spaces, with access to be provided via a new private laneway;
• A redesigned private laneway which travels through the below-grade parking structure, extending along the eastern property line and terminating near the eastern property line;
• An integrated, internal parking space for each dwelling unit, with access via a shared central drive aisle in the below-grade parking structure. Access to the drive aisle is to be provided via the private laneway which extends through the parking structure;
• A covered balcony along the western property line, providing pedestrians with safe access over the private laneway segment leading to the covered parking structure;
• Each townhouse dwelling unit is to have direct at-grade access via the pedestrian pathway network as well as a landscaped open space area. A decorative fencing detail is to be provided at the outer perimeter of each area;
• The proposed development has been organized around a network of pedestrian pathways and landscaped open spaces. Mature plantings are contemplated along the shared property line to facilitate appropriate transition and address overlook concerns;
• A 60.08 m²outdoor amenity area is to be provided. This area is to be directly visible and accessible from the proposed pedestrian pathway network;
• A 2.5 m front yard setback is to be provided along the Site's Thirtieth Street frontage;

21Mr. Levac generally opined that the proposed development plan (as revised) will provide greater housing choice, minimize hardscape surfaces, provide sufficient separation from the adjacent Metrolinx Rail Corridor, and provide for a refined built form that continues to provide an appropriate transition in height and density to the surrounding Neighbourhood.

22From an Urban Design perspective, Mr. Theodore opined that the proposed townhouses have been designed to have an active frontage facing Thirtieth Street via entrances and windows with covered porticos. He opined that this provides informal surveillance along Thirtieth Street, enhances safety, and animates the public realm. On the opposite side, the proposal orients a non-active frontage adjacent to existing rear yards to the west, which mitigates overlook issues, protects privacy, and provides transition to surrounding residential properties.

23Mr. Theodore further opined that the proposed built form deploys high quality architecture that includes combinations of brick and cultured stone, with fenestration that includes balcony railings and awnings. The use of red brick and pitched roof will, in his opinion, complement the existing dwelling to the south and other dwellings in the neighbourhood, reinforcing a shared relationship with the area context. He testified that, the pitched roof with integrated dormers gives the three (3)-story structure an appearance of a 2.5 storey building.

24Mr. Theodore further opined that the building side facades included at-grade forecourts with decorative brick walls and landscape planters that enhance the appearance from pedestrian walkways while also establishing private amenity for each unit. The 6 m southerly side yard provides enhanced built form separation from the existing dwelling to the south. Furthermore, the rear yard's setback of 6 m achieves a similar separation to provide improved transition to the west.

25Mr. Levac generally opined that the proposed development plan (as revised) will provide greater housing choice, minimize hardscape surfaces, provide sufficient separation from the adjacent Metrolinx Rail Corridor and provide for a refined built form that continues to provide an appropriate transition in height and density to the surrounding Neighbourhood.

Policy Analysis

26Mr. Levac testified that, in order to facilitate the proposed development, revised planning instruments are necessary, including: (1) Etobicoke Zoning Code Amendment and; (2) City of Toronto Zoning By-law No. 569 – 2013 Amendment (collectively the "ZBAs"; see proposed drafts attached as Attachment 1 and 2 of this decision).

27These ZBAs seek to rezone the Site to permit the proposed residential uses, revised building envelope standards, revised development standards and revised parking standards.

28Both Mr. Levac and Mr. Theodore provided evidence relevant to the Tribunal's policy analysis respecting the proposed development and ZBAs: Mr. Levac from a Land Use Planning perspective, and Mr. Theodore from an Urban Design Perspective. Given the nature of the Applications currently before the Tribunal, being ZBA Applications, the evidence and opinions of Mr. Levac are generally the most directly on point, and so the Tribunal's analysis will most closely follow his testimony.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

29Section 2 of the Planning Act (the "Act") requires that the Tribunal, in carrying out its responsibilities, to have regard to matters of Provincial interest. Citing subsections (f), (h), (h.1), (o), (p) and (r) of s. 2, Mr. Levac opined that the proposed development and ZBAs have sufficient regard for matters of Provincial interest for the following reasons:

• the Applications will be fully serviced by and will support the optimization of existing municipal sanitary, water and stormwater management services to the satisfaction of the City;
• the Site is located within the City's Urban Area. The Applications will facilitate redevelopment of underutilized land for residential uses. Furthermore, redevelopment of underutilized lands within the City's Urban Area facilitates achievement of complete community goals by directing development to an appropriate and desirable location for orderly development to occur. The proposed development will support greater housing choice that will support the vitality and regeneration within the surrounding area.
• the Applications will facilitate a high-quality, pedestrian-oriented development. The proposed network of pedestrian pathways and public sidewalks will ensure residents and visitors are able to safely, comfortably and easily travel within and beyond the Site. Additionally, opportunities to customize units to provide for enhanced accessibility can be explored on an individual basis, at the time a dwelling is purchased.
• the proposed development will provide for a compact, high-quality built form. The proposed network of pedestrian pathways and public sidewalks will be well lit and will contribute to a safe, comfortable environment. Furthermore, the proposed development contemplates an optimized site design that minimizes pedestrian-vehicular conflicts, provides sufficient separation from the adjacent rail corridor and further contributes to the protection of public health and safety.
• the Applications will create an opportunity to intensify an existing site and proposes an opportunity for intensification on a lot having frontage on a road, in proximity to local transit services and within walking distance of destinations and services to satisfy daily needs.
• the Applications propose the creation of high-quality, compact built forms that are complimentary to the established and evolving character of the surrounding Neighbourhood. Furthermore, the Applications provide for a network of pedestrian pathways that will foster high-quality, safe, accessible, attractive and vibrant public spaces for residents and visitors.

30Mr. Theodore essentially came to the same conclusions from and Urban Design perspective. The Tribunal accepts the experts' opinions and similarly finds that the development plan and approval of the proposed ZBAs have sufficient regard to matters of Provincial interest as defined in s. 2 of the Act.

Provincial Policy Statement ("PPS"), 2020

31The PPS encourages the establishment of healthy, liveable and safe communities and requires that sufficient land be made available to accommodate an appropriate range and mix of land uses to meet projected intensification targets of the community. Citing sections 1.1.1.e, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.1.3.5, 1.1.3.6, and 1.4.3 of the PPS, Mr. Levac opined that the proposed development and ZBAs are consistent with the PPS for the following reasons:

• The Site is located within a Settlement Area, as defined by the PPS. The Applications will accordingly facilitate development in a compact form and density, promote efficient land use and development patterns by optimizing the use of existing underutilized lands in a built-up area, and maximize existing transit, community infrastructure, and infrastructure.
• The Applications represent a compatible form of intensification which fulfills PPS policy objectives. The proposed network of pedestrian pathways further supports the provision of a development that is safe, comfortable and convenient for residents and visitors.
• The Applications will contribute to the achievement of the City of Toronto's intensification targets, while facilitating a compact residential development to occur at an appropriate location and at an appropriate density to optimize use of land, resources, infrastructure and public service facilities.
• The proposed development facilitates residential intensification by introducing townhouse-style dwelling units that will facilitate greater housing choice for current and future residents of the community. It also provides for compact, transit-supportive built forms in proximity to transit services.
• No OP amendment is required to implement the proposed ZBAs. The Applications have been planned and designed to comply with the policies and objectives of the current City OP, and will serve to implement those policies and objectives of the City OP.

32Mr. Levac noted that s. 1.2.6.1 of the PPS states that major facilities (i.e. a rail corridor) and sensitive land uses shall be planned and developed to avoid or, if avoidance is not possible, minimize and mitigate potential adverse effects. As it relates to this section, Mr. Levac opined that the proposed development represents a sensitive land use in proximity to a major facility (the Metrolinx rail Corridor) as defined by the PPS. Mr. Levac opined that the Applications adequately contemplate the development in proximity to the Metrolinx Rail Corridor, and it has been planned and designed to incorporate sufficient mitigation measures (see Rail Safety Measures described in greater detail below).

33On the same topic, Mr. Levac further noted that s. 1.6.9.1 of the PPS states that development occurring in the vicinity of rail facilities shall ensure that the long-term operation and economic role of rail facilities is protected and that sensitive land uses (such as residential dwellings) are appropriately designed, buffered and/or separated from rail facilities. Mr. Levac opined that the Applications will facilitate a residential development that is sufficiently buffered from the adjacent Metrolinx Rail Corridor via a combination of a concrete barrier wall along the shared property line and a landscape buffer along the shared property line. Collectively, he opined that these measures are consistent with s. 1.6.9.1 of the PPS by ensuring that a minimum setback distance of 20 m from the rail corridor is maintained. It is noteworthy that, in Mr. Mikhail's evidence, it was confirmed that such setback calculations considered the "worst case scenario" involving the possible addition of another rail line in the corridor at the closest possible proximity to the proposed development.

34Mr. Theodore essentially came to the same conclusions from and Urban Design perspective. The Tribunal accepts the experts' opinions and similarly finds that the development plan and approval of the proposed ZBAs are consistent with the PPS.

A Place to Grow – Growth Plan for the Greater Golden Horseshoe

35The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management in the Greater Golden Horseshoe Region. Citing sections 1.2.1, 2.2.1, 2.2.2, 2.2.6, and 5.2.4.5 of the Growth Plan, Mr. Levac opined that the proposed development and ZBAs conform with the Growth Plan for the following reasons:

• The Applications direct compact, transit-supportive development to an appropriate location that will support the achievement of complete communities and best utilize an underutilized site. Furthermore, a range of services and facilities are available in the surrounding area, many within walking distance to support daily needs.
• Overall, the Growth Plan directs that development and redevelopment, through intensification, is to be directed to settlement areas that have a delineated built boundary, have existing or planned municipal water and wastewater systems, can support the achievement of complete communities and away from hazardous lands. The Site is located within the City of Toronto's Settlement Area and Built-Up Area. As such, it is an appropriate location for growth to occur. The Site is also within walking distance of numerous transit services, including street-level transit that operates along Lake Shore Boulevard West, as well as services and public service facilities to meet the daily needs of residents. Furthermore, it is on full municipal services.
• The proposed development will provide for 14 new townhouse-style dwelling units that will contribute to housing choice for current and future residents of the Long Branch community and households of varying sizes, incomes, life stages and lifestyle preferences.
• The Applications will facilitate intensification on lands that are underutilized and, in so doing, will support achievement of the minimum intensification targets for the City established by Growth Plan.

36Mr. Theodore essentially came to the same conclusions from and Urban Design perspective. The Tribunal accepts the experts' opinions and similarly finds that the development plan and approval of the proposed ZBAs conform with the Growth Plan.

Toronto Official Plan

37The City OP contains goals, objectives and policies that were established to guide how growth and development is to be managed up to the year 2031. The following is an account of Mr. Levac's evidence and opinion as it relates to the proposed development's/ZBAs' conformity with the OP.

38The policies of the OP found throughout Chapters 2, 3 and 4 speak to the City encouraging compact development that is in appropriate locations, pedestrian-oriented and of a high-quality. Development is also to consider the existing and planned context in which it is located. Furthermore, development is to respect and maintain the established character of Neighbourhoods.

39The Applications represent contextually appropriate intensification of underutilized lands. Specifically, the Proposal contemplates redevelopment toward the periphery of a stable Neighbourhood and on a site that is in close proximity to transit services, commercial destinations, parks and public service facilities – all of which enable a complete community where residents are able to live, work, play and shop within their Neighbourhood. Given the locational attributes, the proposal will facilitate development in a location identified as an appropriate location for development to occur and will facilitate a built form that is both compatible and complimentary to the surrounding community.

40In accordance with Map 2, City Structure, the Site is located in the 'Neighbourhoods' component of the City Structure. Policy 2.3.1.1 states that "Neighbourhoods are low rise and low density residential areas that are considered to be physically stable. Development in Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas".

41The proposed development achieves this policy objective given that a low-rise built form is contemplated. Furthermore, the proposal has been planned and designed to provide for a refined architectural design that respects and reinforces the physical character of the surrounding Neighbourhood.

42Section 3.1.1 of the Official Plan provides the City's policy framework for public realm considerations. Collectively, the policies of Section 3.1.1 state that publicly accessible and private spaces are to be encouraged in order to contribute to the achievement of complete, walkable communities. Policy 3.1.1.1 states that "The public realm is comprised of all public and private spaces to which the public has access. It is a network that includes, but it is not limited to, streets and lanes, parks and open spaces and the parts of private and public buildings that the public is invited into".

43The Applications contemplate the provision of new landscaped open spaces, pedestrian pathways and a private laneway that will enable public realm enhancements, social interaction and passive outdoor enjoyment. It will also facilitate safe, convenient access for pedestrians, cyclists and vehicles into the Site and beyond.

44Section 3.1.2 of the Official Plan provides policy objectives for site organization, building shape, scale and massing, building design and amenity spaces. Collectively, these policies state that development is to fit within the existing and planned context, it is to frame the street, provide park and open spaces, maximize direct sunlight and daylight, and provide outdoor amenity spaces. Policy 3.1.2.1 states that development is to be located and organized to fit within the existing and planned context, it is to frame and support adjacent streets, lanes, parks and open spaces.

45The proposed development is of a form and scale that is appropriate and compatible with the surrounding Neighbourhood. Furthermore, the development has been positioned to frame the public street and provides views to the open spaces. A series of new open spaces are also to be provided.

46Policy 3.1.2.2 states that development is to provide accessible open space. The proposed development meets this policy objective as it contemplates the provision of an outdoor amenity area and landscaped open space areas along the property lines. Collectively, these proposed areas are to provide a variety of accessible open spaces that have direct sunlight and daylight and are safe, comfortable and accessible from the proposed network of pedestrian pathways.

47Policy 3.1.2.3 states that development is to protect the privacy of adjacent buildings through the use of setbacks and separation distances between neighboring properties and buildings containing windows. The proposed development contemplates an increased side yard setback, as measured from the shared southern property line to the perimeter of the nearest exterior wall. Additionally, a wooden privacy fence and a landscaped buffer along the shared property line are to be provided. The combination of a refined architectural design, privacy fencing, an increased setback and a landscaped buffer will ensure that sufficient privacy is provided between dwellings on the Site and the adjacent residential dwelling.

48Section 3.1.3 of the Official Plan states that three (3) scales of building types are permitted to occur – Townhouse and Low-Rise Apartments, Mid-Rise and Tall. As the proposed development contemplates a townhouse built form, policies 3.1.3.1 and 3.1.3.2 apply.

49Policy 3.1.3.1 states that a mix of buildings are encouraged on larger sites, so long as due consideration is given to the size and shape of buildings, streets and open spaces, building separation and appropriate transition in scale. The proposed development has been carefully planned and designed to provide for an optimized site design that facilitates well-designed low-rise residential built forms. Sufficient separation between the proposal and adjacent lots as well as an appropriate transition in scale is provided.

50Policy 3.1.3.2 states that townhouse buildings are to not to exceed four (4) storeys in height. The Applications contemplates 14, 3-storey, back-to-back townhouse units. In this instance, the proposed built form and height facilitates a development that is compatible with the surrounding context, provides an appropriate transition and does not create any unacceptable adverse daylight or privacy concerns. Furthermore, the proposed built form is consistent with other townhouse built forms found in the surrounding area.

51Chapter 4 of the Official Plan contains the City's land use policy objectives. Overall, the policy objectives are organized based on eight (8) land use categories. In accordance with Map 15 of the Official Plan, the Site is designated 'Neighbourhoods'.

52Mr. Levac noted Policy 4.1.5, which states that development in Neighbourhoods is to respect and reinforce the physical character of the Neighbourhood, but he opined that this policy does not apply to the Site given its size and configuration, being atypical and not in conformity by its nature with prevailing patterns in the surrounding Neighbourhood.

53Collectively, Policy 4.1.9 and 4.1.10 state that infill development in Neighbourhoods is permitted, provided consideration has been given to heights, massing, scale of built forms, setbacks, street patterns, pedestrian access, servicing areas that are out of public view and parking. Furthermore, where development that varies from the local pattern is contemplated, the evaluation criterion identified in Policy 4.1.9 applies.

54As it relates to this policy, the Site has a unique lot size and configuration when compared to lots in the surrounding Neighbourhood. Notwithstanding, the proposed development has been planned and designed to have built forms that are consistent with and complimentary to those in the surrounding community (see the Visual Evidence Book). More specifically, the development is respectful of the surrounding residential development forms, provides a refined, high-quality design, provides sufficient setbacks and provides for development that opens onto and addresses the public realm. The revised Proposal, with a three (3)-storey built form, provides an appropriate and desirable transition to the surrounding residential dwellings. It also supports a building height, massing and scale that is respectful to those in the surrounding community. It is noteworthy that the proposal is substantially similar to the three (3) back-to-back townhouse block developments currently being constructed at nearby 68 Daisy Avenue.

55Additionally, the proposed network of pedestrian pathways on the Site will facilitate a development pattern that frames the street edge, ensures direct sunlight and sky views are provided, while also preventing adverse privacy impacts on adjacent properties. The provision of integrated, dedicated parking spaces to serve dwelling units that are out of public view serves to implement the above-noted policy objectives for infill development in Neighbourhoods.

56Mr. Theodore essentially came to the same conclusions from and Urban Design perspective. The Tribunal accepts the experts' opinions and similarly finds that the development plan and approval of the proposed ZBAs conform with the City OP.

City of Toronto Townhouse and Low-rise Apartment Design Guidelines

57The Townhouse and Low-Rise Apartment Design Guidelines ("Guidelines") are not an operative part of the OP. However, as testified by Mr. Levac and Mr. Theodore, the Guidelines provide detailed design directions in order to guide low-rise residential developments occurring across the City and how to implement land use, urban design, public realm and transportation policies of the OP.

58In summary, Mr. Levac and Mr. Theodore similarly opined that the proposed development and corresponding planning instruments are adequately consistent with and have appropriate regard for the Guidelines. Noting that the Guidelines are not an operative part of the OP, the Tribunal accepts their evidence and finds same.

Long Branch Neighbourhood Character Guidelines

59The Long Branch Neighbourhood Character Guidelines ("Character Guidelines") are also not an operative part of the OP. However, as testified by Mr. Levac and Mr. Theodore, the Character Guidelines provide detailed directions in order to guide residential developments occurring throughout the Long Branch Neighbourhood and how to implement built form policies of the OP.

60In summary, Mr. Levac and Mr. Theodore similarly opined that he proposed development and corresponding planning instruments are adequately consistent with and have appropriate regard for the Character Guidelines. Noting that the Character Guidelines are not an operative part of the OP, the Tribunal accepts their evidence and finds same.

Toronto Green Standards

61The Toronto Green Standards ("TGS") are also not an operative part of the OP. However, as testified by Mr. Levac, the TGS serve to implement the OP's sustainable development policies and it is the City's practice to require any development Applications to demonstrate compliance with a minimum performance level prior to receiving development approval.

62Mr. Levac noted that the applicable performance standards of the TGS will be further reviewed during the future detailed design stage of the development. Nevertheless, he opined that that the proposed development already conforms to the intent of the TGS and will achieve compliance with the minimum performance standards.

Rail Safety Measures

63Mr. Mikhail provided evidence to the Tribunal in relation to Rail Safety Measures, and specifically as it may relate to appropriate regard to s. 2(h) and (o) of the Act, consistency with policies 1.2.6 and 1.6.9.1 of the PPS, and conformity with policies 2.2.4.5 and 3.4.21 of the City OP.

64Mr. Mikhail testified that he reviewed and relied upon the following documents in preparation of his evidence:

• Architectural Drawing of the Applicant;
• Guidelines for New Development in Proximity to Railway Operations, J.E. Coulter Associates Limited, (2013) ("FCM/RAC Guidelines").
• Review of Crash Wall Design Guidelines Memorandum, AECOM (March 25th, 2013).
• Submission Guidelines for Crash Walls, AECOM (July 29th, 2014).
• E-mail correspondence with Metrolinx indicating rail data (October 14, 2021).
• CN Rail Data Letter (January 21st, 2016).
• Data and Statistics on Rail Transportation Occurrences by the Transportation Safety Board of Canada (TSB).
• Derailment Protection Report and drawings prepared by JSW + Associates (December 15, 2021) (the "Derailment Protection Report").
• Land Use Study: Development in Proximity to Rail Operations, submitted to City of Toronto by IBI Group and Stantec, (March 2019).

65Mr. Mikhail testified that, through the Derailment Protection Report, the Applicant's development proposal was assessed to determine whether the plan provides adequate protection against various forms of derailment, products of derailment, and trespassing onto the rail corridor.

66Proposed derailment protection measures include:

• A crash wall derailment protection feature that is 5.0 m in height and a minimum of 450 mm in width, situated directly on the property line along the northern limits of the development.
• A return crash wall derailment protection feature that is 2.135 m high and a minimum 450 mm in width on the western limits of the development, spanning 15.4 m in length. The proposed return crash wall will tie into the proposed crash wall.
• A total minimum setback of 25.0 m, inclusive of the 5.0 m tall crash wall.
• The aforementioned derailment protection features are designed and measured based on a potential future Principal Mainline track at 10 feet (3.048 m) from the property line, being the closest a track can be located adjacent the development.

67Mr. Mikhail noted that the data and statistics tabulated by the Transportation Safety Board of Canada illustrates the following information which contributed to formatting his opinion:

• The entire rail subdivision that this corridor operates within does not possess a single fatality or injury resulting from fire since 1983 (when the data was first recorded). Fire therefore poses little to no risk to the development.
• Based on the entirety of data compiled, within all of Canada since 1983, there has only been one (1) incident that resulted in fatalities due to train explosion. That event was the Lac-Mégantic tragedy in 2013. Nevertheless, the risk of explosion is very low and it would be extremely unrealistic to attempt to protect against an event of such magnitude if it was to occur in the City.
• There have been no recorded fatalities within the rail corridor since 1983 as a result of speeding.
• There has been one (1) fatal incident within the entire Oakville rail subdivision since 1983 as a result of derailment. The incident took place in Burlington in 2012 and resulted in fatal injuries to three (3) of the operating crew. Therefore, historical evidence suggests that while derailments may occur, fatality rates are infrequent and have not involved residents of neighbouring lands. In addition, if a derailment event was to occur in the vicinity of the Site, the protection feature(s) proposed will substantially mitigate adverse risks to the development.

68Mr. Mikhail concluded that the Applicant's development proposal, including planned derailment protection features, are adequate from a rail safety standpoint for the following reasons:

• The FCM/RAC Guidelines stipulate that the horizontal setback guideline of 30 m may be reduced to 20 m with the construction of a crash wall, and such a feature is included in the Applicant's plan.
• The proposed crash wall will be designed with the track design speed of 95 mph (153 km/h) and assumes an additional Principal Mainline track at 10 feet (3.048 m) from the property line. This, in effect, assumes a Principal Mainline track at the closest possible distance from the development.
• Based on the FCM/RAC guidelines and past precedence in the City of Toronto, a total setback of at least 25 m, consisting of the above referenced 20 m horizontal setback and an additional 5 m vertical setback, is acceptable and safe provided that the aforementioned 5 m high crash wall is installed.
• The subject development is proposing a 15.4 m long return crash wall as an additional safety measure, which exceeds the mandated minimum of 6 m in length.

69Mr. Mikail noted that existing residential development around the Site were not built to current Rail Safety standards; however, as a consequence of the proposed derailment protection measures associated with the proposed development, some adjacent residences will also benefit from an increased degree of derailment protection. In addition, fencing and other attributes associated with the proposed plan along the rail corridor will also better discourage trespassing than what currently exists, noting that injuries and fatalities associated with trespassing are far more common than those associated with rail accidents.

70The Tribunal accepts Mr. Mikhail's evidence and opinion and correspondingly finds the Applicant's development plans adequately address the provincial and municipal policy objectives associated with rail safety.

Summary and Conclusion

71The Tribunal finds that the proposed ZBAs have appropriate regard for matters of Provincial interest under Section 2 of the Planning Act, are consistent with the policies and directives of the PPS and conform to the policies of the Growth Plan and City OP, and generally represent good planning in the public interest. This conclusion includes consideration of those policy objectives that address rail safety concerns, and the Tribunal finds that the derailment protection measures proposed as part of the development plan are adequate to address such risks associated with the proposed development.

THE TRIBUNAL ORDERS that;

1. the appeal is allowed in part, and the modifications to Zoning By-law No. 569-2013 and Etobicoke Zoning Code attached to this Order as Attachment 1 and 2, respectively, are approved subject to the fulfillment of the Conditions attached to this Order as Attachment 3, to the satisfaction of the City of Toronto. The Tribunal authorizes the Municipal Clerk of the City of Toronto to assign a number to this by-law for record keeping purposes.

2. The Tribunal may be spoken to in the event that the Parties have any difficulty in implementing this Decision and Order.

"K.R. Andrews"

K.R. ANDREWS

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

Draft Zoning By-law Amendment

BY-LAW No. XXX-20XX

To amend Zoning By-law No. 569-2013, as amended, with respect to the lands municipally known as 80 Thirtieth Street

WHEREAS authority is given to Council by Section 34 of the Planning Act, R.S.O. 1990, c.P. 13, as amended, to pass Zoning By-laws; and

WHEREAS Council of the City of Toronto has provided adequate information to the public and has held at least ne public meeting in accordance with the Planning Act;

Whereas Council f the City of Toronto, at its meeting on ______________, 20XX, determined to amend the City of Toronto Zoning By-law 569 – 2013 with respect to the lands known municipally in the year 20XX as 80 Thirtieth Street;

The Council of the City of Toronto hereby enacts 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 No. 569- 2013, Chapter 800 Definitions.

3. Zoning By-law No. 569- 2013, as amended, is further amended by adding the lands subject to this By-law to the Zoning By-law Map in Section 900.1 and applying the Zone Label as shown on Diagram 2 attached to this By-law.

4. Zoning By-law No. 569 – 2013, as amended, is further amended by adding the lands subject to this By-law to the Height Overlay Map in Section 995.20.1 and applying the Height labels as shown on Diagram 3 attached to this By-law.

5. Zoning By-law No. 569 – 2013, as amended, is further amended by adding the lands subject to this By-law to the Lot Coverage Overlay Map in Section 995.30.1 and applying the Lot Coverage label as shown on Diagram 4 attached to this By-law.

6. Zoning By-law No. 569-2013, as amended, is further amended by adding Article 900.5.10.(XX) so it reads:

(XXX) Exception RT XXX

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) In addition the permitted residential building types in Chapter 10.60.20.40, back-to-back townhouses shall be permitted;

(B) Regulation 10.60.30.0(2) shall not apply;

(C) Regulation 10.60.30.20 shall not apply;

(D) Despite Regulation 10.60.30.40.1, the maximum permitted lot coverage for all buildings and structures shall be as shown on Diagram 4 attached to this By-law;

(E) Despite Regulation 10.60.40.10.1, the maximum permitted height for all buildings and structures is the numerical value, in metres, following the letters HT as shown on Diagram 3 attached to this By-law;

(F) Despite (E) above, the following elements of a building or structure may exceed the maximum permitted heights:

i. Wind screens, mechanical equipment and any associated enclosure structures, parapets, fences, guard rails, railings and dividers, balustrades, eaves, screens, stairs, roof drainage, window sills, window washing equipment, chimneys, vents, lighting rods, light fixtures, architectural features and landscaping, which may project a maximum of 2.0 metres;

(G) Regulation 10.60.40.40.1 shall not apply;

(H) Despite Regulation 10.60.40.70, the required minimum building setbacks shall be as shown on Diagram 5 attached to this By-law;

(I) Regulation 10.60.40.80 shall not apply;

(J) Despite Regulation 200.5.10.1, parking spaces shall be provided as follows:

i. 28 parking spaces for residents;

ii. 3 parking spaces for visitors;

(K) A maximum of 60 square metres of outdoor amenity areas shall be provided.

7. None of the provisions of Zoning By-law 569-2013 shall apply to prevent a sales office on the lot.

8. Despite any future severance, partition or division of the lot as shown on Diagram 1, the provisions of this By-law shall apply as if no severance, partition or division occurred.

ENACTED AND PASSED this _____________________ day of _______________________, 20XX.

JOHN TORY ULLI S. WATKISS

Mayor City Clerk

ATTACHMENT 2

Draft Zoning By-law Amendment

BY-LAW No. XXXX-20XX

To amend the Etobicoke Zoning Code, as amended, with respect to the lands municipally known as 80 Thirtieth Street.

WHEREAS authority is given to Council by Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended, to pass this By-law; and

WHEREAS Council of the City of Toronto has provided adequate information to the public and has held at least one public meeting in accordance with the Planning Act; and

WHEREAS Council of the City of Toronto, at its meeting on ___________________, 20XX, determined to amend the Etobicoke Zoning Code of the former City of Etobicoke with respect to lands known municipally in the year 20XX as 80 Thirtieth Street;

The Council of the City of Toronto enacts:

1. For the purpose of this By-law, the following definitions shall apply:

a. 'Back-to-Back Townhouse Dwellings' means a townhouse not exceeding four (4) storeys in height, containing more than two (2) attached dwelling units that are divided in plan, each with an entrance that is independent or through a common area;

b. 'Height' means the vertical distance between grade and the highest point of the building or structure;

c. 'Outdoor Amenity Space' shall mean space provided for private outdoor enjoyment in the form of common landscaped areas.

2. Notwithstanding the provisions of the Etobicoke Zoning Code, as amended, the following shall be permitted on the lands described by Schedule 'A' attached hereto:

a. Back-to-Back Townhouse Dwelling Units shall be permitted;

b. A total gross floor area of 2,065 square metres shall be permitted;

c. No portion of any above grade structure erected or used on the lands shall extend beyond the heavy lines on Schedule 'B' attached hereto, measured from the property lines, except for terraces, uncovered steps to grade and patios, balconies, covered and uncovered porches, transformers, garbage chutes, mail kiosks, utility boxes, ancillary garbage structure, hydro vault and other minor projections;

d. The maximum building height shall be as indicated on Schedule 'B';

e. 60 square metres of outdoor amenity space shall be provided;

f. Parking spaces shall be provided in accordance with the following:

i. 28 spaces for resident use;

ii. 3 spaces for visitor use

3. Notwithstanding any severances, partition or division of the lands shown on Schedule 'A', the regulations of this By-law shall continue to apply to the whole of the lands as if no severance, partition or division had occurred.

4. Where the provisions of this By-law conflict with the provisions of the former Etobicoke Zoning Code, the provisions of this By-law shall apply.

BY-LAW NUMBER AND ADOPTION DATE

DESCRIPTON OF PROPERTY

PURPOSE OF BY-LAW

80 Thirtieth Street

To permit back-to-back townhouse dwellings.

ENACTED AND PASSED this _______________day of _____________, AD, 20XX.

JOHN TORY, ULLI S. WATKISS

Mayor City Clerk

ATTACHMENT 3

POST-APPROVAL CONDITIONS

a) The proposed Zoning By-law Amendment is in a final form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b) The owner has agreed to the peer review of the Derailment Protection Report by the City's Peer Reviewer, at the owner's expense, to determine the appropriate building setback from the rail corridor and mitigation measures to the satisfaction of Metrolinx, the Chief Planner and Executive Director, City Planning and the City Solicitor;

c) The owner has submitted a revised Environmental Noise and Vibration Assessment to be further peer reviewed at the owner's expense and resolved to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;

d) The owner has submitted a revised Functional Servicing and Stormwater Management Report to determine the stormwater runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

e) The owner has entered into the appropriate agreement with the City for the design, construction and provision of financial securities for any improvements to the municipal infrastructure to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, should it be determined that improvements or upgrades are required to the infrastructure to accommodate this development;

f) The owner has provided space within the development for the 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 By-law Chapter 681;

g) The owner has submitted a revised Transportation Operations Review to the satisfaction to the General Manager, Transportation Services; and

h) The owner has submitted a revised Landscape Plan, all requirements and related approval processes of the City's Tree By-laws have been completed and all Tree Preservation matters are resolved to the satisfaction of the General Manager, Parks, Forestry and Recreation.