Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2022

CASE NO(S).: OLT-21-001736

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Firmland (Kingston Road) Inc. Subject: Minor Variance Property Address/Description: 4694 - 4696 Kingston Road Variance from By-law: City of Scarborough West Hill Community Zoning By-law No. 10327 Municipality: City of Toronto Municipal File No.: A00018/21SC OLT Case No.: OLT-21-001736 OLT Lead Case No.: OLT-21-001736 OLT Case Name: Firmland (Kingston Road) Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Subject: Site Plan Referred by: City of Toronto Property Address/Description: 4694 - 4696 Kingston Road Municipality: City of Toronto OLT Case No.: OLT-21-001367 OLT Lead Case No.: OLT-21-001736

Heard: April 29, 2022 in writing

APPEARANCES:

Parties Firmland (Kingston Road) Inc. (the “Appellant”)

Counsel J. Fraser S. Tomasella

Parties City of Toronto (the “City”)

Counsel G. Dedelli

DECISION DELIVERED BY M. RUSSO AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal under the Planning Act (the “Act”), s. 45(12), arising from the City’s Committee of Adjustment’s (the “CofA”) refusal of the Appellant’s Minor Variance (the “MV”) application and further the City’s failure to decide, within statutory timeframes, with respect to a Site Plan application (“SP”) under s. 114(15) of the City of Toronto Act, 2006. The Subject Property is municipally known as 4694-4696 Kingston Road, in the City (formerly, Scarborough) (the “Subject Site”).

2The Appellant is proposing to redevelop the Subject Site, which currently contains a four-storey motel. The proposal includes a 12-storey mixed-use, mid-rise building with 168 dwelling units, 65 square metres of non-residential gross floor area (“GFA”) and 170 underground parking spaces.

3A Case Management Conference (the “CMC”) was heard for this matter on March 25, 2022. At the CMC, the following Order was provided on this matter:

a. The Tribunal orders that the Hearing in the MV appeal will be held by Written Hearing, in accordance with the schedule set out in paragraph 12 of the Tribunal’s Decision issued on April 12, 2022.

b. The Tribunal orders that the SP appeal is adjourned sine die. The Parties will provide the Tribunal’s Case Coordinator with an update on the progress of the SP appeal on or before May 30, 2022.

4The Parties have come before the Tribunal on this matter having settled all contested issues previously held on this matter, and on consent, requesting this Hearing be a Settlement Hearing for the MV appeal.

Applicable Legislation and Policies

5Land 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 (the “ZBL”), issue-specific guidelines, etc.

6Although the Parties have settled their issues, the Tribunal must still determine if the proposal meets provincial interests and the municipal policy framework. In adjudicating the appeal, the Tribunal is still tasked to determine if the relief sought from the ZBL and the variances before the Tribunal are consistent with Provincial interests as set out in the Provincial Policy Statement, 2020 (“PPS’’), conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), and meet the four tests of a minor variance as set out in s. 45(1) of the Act. The Tribunal must also have regard to matters of Provincial interest set out in s. 2 of the Act.

THE HEARING AND THE PLANNING WITNESS

7Jointly, the Parties relied on the written evidence of Mike Dror, a Registered Professional Planner with close to 20 years of professional experience in the Province of Ontario. The Tribunal was asked that he be qualified to provide expert evidence on the proposed Settlement.

8Provided to the Tribunal was Mr. Dror’s executed affidavit and written evidence on the matter. Included within as Exhibit A and B were his Curriculum Vitae (“CV”) and Acknowledgement of Expert's Duty form for the Tribunal’s consideration.

9Upon review of Mr. Dror’s CV, Acknowledgement of Expert's Duty form and executed affidavit as a whole, the Tribunal qualified Mr. Dror to provide expert opinion evidence pertaining to land-use planning for this Hearing. His executed affidavit was marked as Exhibit 1 for the Hearing.

10Mr. Dror advised the Tribunal that Bousfields (the planning firm he is employed with) was retained to provide land-use planning services by the Appellant in 2019, in connection with the MV and SP applications provided to the City.

11In preparing his Affidavit, and in the preparation of various materials throughout the application process, Mr. Dror advised the Tribunal that he had conducted a review of the current land use planning policy framework applicable to the Subject Site, which included the Act, the PPS, Growth Plan, City’s OP, West Hill Community ZBL (“ZBL 10327”), as well as the City-wide ZBL (“ZBL 569- 2013”), which does not technically apply, but which was considered in his analysis of the applications.

12Further, Mr. Dror highlighted he had also reviewed all relevant materials related to the applications including staff reports, departmental and agency circulation comments and comments from members of the public on the applications.

DESCRIPTION OF THE SUBJECT SITE AND SURROUNDING CONTEXT

Subject Site

13The Subject Site is located on the north side of Kingston Road, west of Highland Creek (note that for the purposes of this application and for ease of description, Mr. Dror has assumed that this portion of Kingston Road is an east-west road). Irregular in shape, the Subject Site has a total area of approximately 4,456 square metres, with a frontage of 60.48 metres (“m”) along Kingston Road and a maximum depth of 79.18 m. The Subject Site is currently occupied by the Knights Inn Motel, a “T”-shaped, 4-storey building oriented towards Kingston Road that is surrounded by surface parking.

14The Subject Site includes a portion of the Highland Creek ravine and natural heritage system and, accordingly, falls within the Toronto Region Conservation Authority (“TRCA”) regulation limit. A long-term stable top of bank line and a natural feature limit was identified and staked in consultation with the TRCA.

15The Subject Site is designated Mixed-Use Areas by the OP and located along an Avenue. It also abuts Highland Creek, which as noted above is part of the natural heritage system in the City and is an area within the jurisdiction of the TRCA.

Immediate Surroundings

16To the immediate east of the Subject Site (again, for ease of description, the assumption is that this section of Kingston Road is an east-west road) is the Toronto Mahavihara, a Buddhist temple which occupies two single-storey homes at 4698 Kingston Road.

17Past the temple is Colonel Danforth Park, which forms part of the Highland Creek ravine. Further east of the ravine at 1625 Military Trail and 6000 Kingston Road is a property subject to recently adopted Official Plan Amendment (“OPA”) and rezoning application to amend the City OP and applicable ZBLs in order to permit two 8-storey (27 m, excluding mechanical penthouse) residential buildings. The proposal contemplates approximately 35,167 square metres of GFA including 549 residential units. The resulting floor space index is approximately 2.93 times the lot area (gross).

18To the immediate west of the Subject Site is a triangular-shaped lot that is occupied by a single-storey auto shop building, occupied by a number of auto-related businesses and surrounded by surface parking used for vehicular sales and outdoor storage (4690 Kingston Road). West of the parking lot is the Lido Motel at 4674 Kingston Road which includes two buildings, one and two storeys in height, surrounded by surface parking. Mr. Dror indicated that it is his understanding that a portion of the Lido Motel is or has recently been used by the City as a Shelter, Support and Housing Administration Office for emergency shelter spaces. To the rear (north) of the motel, at 4662 Kingston Road, is a condominium community of 2-storey detached and townhouse dwellings serviced by a private street network. The condominium’s outdoor amenity space, including an outdoor pool and tennis court, are located at the far east of the site, north of Lido Motel and abutting the west lot line of 4690 Kingston Road.

19To the immediate north of the Subject Site is the Highland Creek ravine and natural heritage system.

Transportation

20The Subject Site is well connected to the surrounding road network. Kingston Road is classified as a major arterial, with a right-of-way width of between approximately 53 and 58 m in front of the Subject Site (and a planned right-of-way width of “45 m and over” on Map 3 of the City OP). In the segment abutting the Subject Site, Kingston Road has seven lanes (including a centre turning lane) of traffic.

21The Subject Site is well-served by public transit, with a number of surface transit routes also located within walking distance of the Subject Site. The nearest bus stop is located approximately 50 m south of the Subject Site. Routes servicing the Subject Site include:

• 86 Scarborough bus route, which operates daily between Kennedy Station on Line 2 of Bloor-Danforth Subway, the Toronto Zoo, and the area of Lawrence Avenue East and Beechgrove Drive; and

• 986 Scarborough Express bus route, which operates Monday to Friday at peak hours between Kennedy Station on Line 2 of Bloor-Danforth Subway and the area of Meadowvale Road and Sheppard Avenue East.

22The 86 Scarborough bus route is on a RapidTO corridor and has a dedicated bus lane for the majority of the route, from Brimley Road to Morningside Avenue. It operates as part of the 10-Minute Network, with 10-minute or better service all day, every day, and would be considered “frequent transit” by the Growth Plan.

23The nearest higher-order transit station is the University of Toronto Scarborough Campus GO Bus, approximately 1.2 kilometres northwest of the Subject Site.

SETTLEMENT PROPOSAL

24As indicated at the onset of this Decision, the proposal in its current form (the “Settlement Proposal”) would demolish the existing four-storey motel building and construct an 11-storey mid-rise building with 168 residential units and 65 square metres of office space at grade. A partial 12th storey is to be located north of the mechanical areas and will provide limited indoor amenity space (including washrooms) and will provide access to a rooftop amenity terrace.

25The Settlement Proposal would consist of two distinct elements: a 5-storey base and a mid-rise element rising up to 11 storeys plus the penthouse. The base of the podium along Kingston Road would be lined with the residential lobby entrance, the proposed office space, five integrated 2-storey townhouse units and a fitness studio, which is part of the building’s indoor amenity.

26The Settlement Proposal would be accessed via a driveway off Kingston Road to be located on the east side of the site, which provides access to a drop-off area, the underground garage ramp and the loading areas, all of which are interior to the site. In addition, the proposal would provide approximately 40 percent of the site area to the TRCA as a community benefit. The precise configuration of the lands to be conveyed to the TRCA was determined in consultation with the TRCA.

27The Settlement Proposal has evolved throughout the SP and MV Application processes, with the overall changes summarized in the table below. Overall, the Settlement Proposal was revised to provide for a slightly higher GFA and height to introduce non-residential space to the formerly residential-only proposal, to increase the proportion of family-sized units, the amenity space, and the parking.

THE VARIANCES

28With respect to the MV Application, the following 8 variances are requested to facilitate the development of the proposal:

i. Height

Schedule "B", Performance Standard 603: The maximum height is eight storys, excluding basement and rooftop mechanical penthouse, whereas a maximum height of 12 stories is proposed (note: Floor 12 is integrated into the mechanical penthouse and only has 74 square m of GFA, which includes access and a washroom).

ii. Underground Setback

Clause VI, 13: A 3.0 m setback from streets is required, whereas the underground structures are set back 0 m from Kingston Road.

iii. Front yard setback

Schedule "B", Performance Standard 400: A minimum 3 m building setback is required from the street line, whereas a minimum 2.4 m building setback is provided from the street line (note: the majority of building, aside from architectural elements is in fact set back 3 m from the street line).

iv. Front yard setback

Schedule "B", Performance Standard 602: The wall of the building fronting or abutting Kingston Road shall be a minimum width of 70% of the lot at the street line for lots having frontage or flankage of more than 30 m and 60% for lots having frontage or flankage of up to 30 m and shall be set back a minimum of 3 m and a maximum of 5 m from the street line, whereas:

• Floors 1-5 are set back 2.4 m from the street line;

• Floors 6-11 are set back 6 m from the street line; and

• the mechanical penthouse has a width of 40% of the lot at the street line and is set back 9.975 m from the street line;

v. Rear yard setback

Schedule "B", Performance Standard 86: A 7.5 m rear yard setback is required, whereas the building is to be set back a minimum of 3.0 m from the proposed new rear lot line following conveyance of lands to the TRCA.

vi. Residential Parking

Clause VII, Provision 1.1: One parking space per dwelling unit is required (168 spaces), whereas 144 spaces are provided (note: 25 additional parking spaces are proposed for visitors, and one additional space is proposed for commercial uses, for a total of 170 spaces).

vii. Commercial Parking

Schedule “B”, Performance Standard 324: Notwithstanding Clause VII, Provision 1.1, 2.5 parking space per 100 square m of gross floor area is required for office and retail uses in residential/commercial mixed-use buildings (2 spaces), whereas 1 parking spaces is proposed to be dedicated to commercial uses.

viii. Parking Space Dimensions

Clause VII, Provision 1.3.1(a): The minimum width of a parking space shall be 2.6 m, which shall be increased by 0.3 m for each side of the parking space which is obstructed, whereas a maximum of 15 percent (26 parking spaces) of the proposed parking with one or both sides obstructed are proposed to have a minimum width of 2.5 m. (note: currently, no parking spaces are proposed to be obstructed; this variance is being pre-emptively sought to accommodate minor variations to the as-built condition of parking spaces arising from the construction and design development process (e.g. minor tolerances for pouring concrete columns, placement of pipes along walls and columns, etc.)

PLANNING ANALYSIS AND EVIDENCE

The Four Tests Set Out in [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

Test One: Maintain the General intent and Purpose of the OP

29Mr. Dror opined that the proposal would maintain the general intent and purpose of the City OP. The proposal would provide new mid-rise apartment and at-grade integrated townhouse housing options, along with a small office component, in a manner that is consistent with the Mixed-Use Areas designation, which encourages both single-use and mixed-use buildings.

30The Subject Site is also identified as being located along an Avenue, one of the areas that the OP identifies as a target for accommodating growth and intensification. The OP encourages increasing the City’s housing supply, and supports intensification on Avenues, particularly in proximity to public transit. Mr. Dror gave evidence that the Settlement Proposal meets the above goals.

31In the opinion of Mr. Dror, the proposed height is in keeping with the City’s Mid-Rise Building Design Guidelines (“Guidelines”), and in fact lessor than can be sought based on the Guidelines.

32The urban design elements (setbacks, stepbacks, built form and more) are in keeping with OP polices and Guidelines according to Mr. Dror and appropriate based on the site context and evolution of the area.

33Mr. Dror opined that both the residential and office parking variances maintain the intent and purpose of the OP, as they are modest reductions, supported by technical analysis (Memorandum provided by the BA Group) and the Subject Site’s proximity to transit.

34Mr. Dror concluded that Test One has been met and opined the Settlement Proposal and MV’s sought meet the general intent and purpose of the OP.

Test Two: Maintain the General Intent and Purpose of the ZBL

35Mr. Dror advised the Tribunal that the Subject Site is not subject to ZBL No. 569-2013 as it falls in a “hole” within the City’s mapping (which he confirmed with City Staff).

36The Subject Site is zoned Commercial Residential (“CR”) by ZBL No. 10327.

37The CR zone permits residential uses, as well as a number of non-residential uses including offices, personal service shops, retails stores and restaurants, along with hotels and motels, a number of institutional uses, and other uses.

38The zoning includes a number of applicable performance standards (height, setbacks, frontage, landscaping, parking and more). Through his analysis and technical reports provided, Mr. Dror concluded that the Settlement Proposal meets the performance standards set out in the ZBL or their general intent and purpose.

39Mr. Dror concluded and opined that the requested variances maintain the general intent and purpose of ZBL No. 10327. He maintains that the Settlement Proposal ensures that the proposed built form and massing are appropriate for the area, and individually, as well as collectively, the requested variances satisfy Test Two of the Act.

Test Three: Minor in Nature

40Mr. Dror provided the opinion that an assessment of the requested variances against the test of “minor” is not solely a numerical assessment but also involves an assessment of impact. In this regard, the requested variances should not create any adverse impacts on nearby properties.

41Mr. Dror turned the Tribunal to the shadow studies provided by CORE Architects. In his opinion, the shadow studies demonstrate that no negative impacts are felt with the height of the proposal.

42Further, Mr. Dror’s analysis of the setbacks and stepbacks, as well as landscaping provided reinforce his opinion that the Settlement Proposal on the Subject Site is appropriate and “minor in nature”.

43Overall, Mr. Dror concluded that the remaining variances are modest in nature and do not negatively impact the surrounding area (turning to various technical studies for the proposal and also his own analysis), and for all the above reasons, Mr. Dror provided his concluding opinion, that the Settlement Proposal satisfies Test Three of the Act and is indeed minor in nature.

Test Four: Desirable for the Appropriate Development and Use of Land

44Mr. Dror summarized and opined that the requested variances are appropriate and desirable. The proposed development will provide additional housing and employment options within proximity of existing and planned transit, along one of the City’s Avenues, intensifying an underutilized site in a manner that is supportive of both Provincial and City policy directions that encourage the efficient use of land and infrastructure. The development will help to reinvest into and expand the City’s housing stock in an area well served by frequent transit and other infrastructure and amenities, including the Highland Creek, which is to be expanded as part of the Subject Site’s redevelopment.

45Expanding on Test Four and speaking to the Settlement Proposal in its entirety, Mr. Dror opined that through his analysis and with the technical evidence and studies provided, it is his opinion that the Settlement Proposal has regard to s. 2 of the Act, is consistent with the PPS and conforms with the Growth Plan.

CONDITIONS OF APPROVAL

46Mr. Dror advised the Tribunal that he had reviewed the conditions provided by City planning staff and that of the TRCA. In his opinion, the conditions are appropriate, and any decision of this Tribunal should be subject to the conditions (as set out and attached to this decision).

CONCLUSIONS AND RECOMMENDATION TO TRIBUNAL

47Mr. Dror concluded that for all the reasons provided in his Affidavit, approval of the MV requests with the proposed conditions is in the public interest and represents good land-use planning. The requested variances are consistent with the PPS and conform to the Growth Plan; maintain the general intent and purpose of the OP and ZBL; are desirable for the appropriate development and use of the Subject Site; and are minor in nature.

48It was his recommendation to the Tribunal that the MV appeal be allowed, in part, granting the MVs subject to the proposed conditions.

ANALYSIS AND DISPOSITION

49The Tribunal has reviewed the affidavit and uncontroverted evidence of Mr. Dror, who was qualified to give expert land-use planning evidence. The Tribunal is persuaded by the evidence and finds that the proposed settlement and the variances sought have regard to relevant Provincial interests, as set out in the Act.

50The Tribunal finds that the proposal and the variances sought are consistent with the policy direction established by the PPS, and conform with the Growth Plan.

51The Tribunal finds that the proposal and variances sought satisfy the four tests for a minor variance set out in s. 45(1) of the Act.

52The evidence of Mr. Dror satisfied the Tribunal that no negative impacts are created, and the character of the area is maintained and in fact, improved with the proposed development and its integration into the community.

53The Tribunal has reviewed the conditions of approval proposed. The Tribunal finds them to be appropriate and helpful in both reaching settlement between the Parties, but more importantly, conforming with policy and ensuring the impacts of overview, setbacks, parking and many others are addressed.

ORDER

54THE TRIBUNAL ORDERS that the appeals are allowed in part and the variances to By-law No. 10327 are authorized subject to conditions as set out in Attachment 1.

“M. Russo”

M. russo

MEMBER

Ontario Land Tribunal

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

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

OLT-21-001736 – Attachment 1

CONDITIONS OF APPROVAL

1. The owner of 4694-4696 Kingston Road (the "Owner"), at its sole cost and expense, shall enter into and register on title to the lands an agreement pursuant to section 45(9.1) of the Planning Act, R.S.O. 1990, c. P.13, between the Owner and the City, to the satisfaction of the City Solicitor, in consultation with the Chief Planner and Executive Director, City Planning, to secure the following:

(a) That the Owner convey to the TRCA the Natural Areas/Open Space Block having an area of 1,719.2 square metres identified as Part 1 on the draft R-Plan prepared by R-PE Surveying Ltd., together with an access easement over Parts 3 and 4 as identified on the Draft R Plan prepared by R-PE Surveying Ltd. prior to the earliest of registration of a plan of condominium on the site or three years following issuance of the first above grade building permit;

(b) Prior to the issuance of the first above-grade building permit for the development, the Owner shall pay to the City the sum of one hundred and thirty thousand dollars ($130,000), in Canadian funds, indexed upwardly in accordance with the Statistics Canada Non-Residential Construction Price Index for Toronto, calculated from the date that the Committee's decision is final and binding to the date of payment by the Owner to the City, to be allocated towards general park improvements in the Scarborough-Rogue Park Ward to the satisfaction of the Chief Planner, in consultation with the Ward Councillor;

(c) If, upon the expiry of 3 years from the date that the Tribunal's decision is final and binding, the cash contribution referred to in Section (b) above has not been used by the City for the intended purpose(s) set out Section (b) above, any portion of the cash contribution may be redirected for another purpose at the discretion of the Chief Planner, in consultation with the Ward Councillor, provided that the purpose is identified in the Toronto Official Plan and will benefit the community in the vicinity of the Lands; and

(d) The Owner acknowledges and agrees that the development proposal for 4694-4696 Kingston Road is subject to the Site Plan Control Application approval process and that the plans and drawings submitted to the City for approval shall show the area to be conveyed by the Owner to the TRCA. The Owner acknowledges and agrees that it shall enter into a site plan agreement pursuant to s. 41 of the Planning Act and Section 114 of the City of Toronto Act, 2006, for 4694-4696 Kingston Road, to the satisfaction of the Chief Planner and Executive Director, City Planning.

2. The building shall be constructed substantially in accordance with Site Plan Drawing A101 and Elevation Drawings A400, A401, A402, A403 prepared by Core Architects Inc., issued on May 27, 2021, as detailed on Figures 1 - 5 attached to the report from the Director, Community Planning, Scarborough District, dated July 20, 2021. Any variances that may appear on these plans but are not listed in the written decision are not authorized.