Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 08, 2022
CASE NO(S).: OLT-22-002106 (Formerly PL210257)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Referred by: 300 Bayview Ave. Ltd. & 1405768 Ont. Ltd.
Subject: Site Plan
Property Address/Description: 300 & 328 Bayview Avenue
Municipality: City of Toronto
OLT Case No.: PL210257
OLT File No.: PL210257
OLT Case Name: 300 Bayview Ave. Ltd. & 1405768 Ont. Ltd. v. Toronto (City)
Heard: February 23, 2022, by video hearing
APPEARANCES:
Parties
Counsel
300 & 328 Bayview Avenue
A. Heisey
City of Toronto
M. Piel
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant/Appellant intends to redevelop its property located at 300 and 328 Bayview Avenue, in the City of Toronto (the “subject lands”), with a five-storey building to be used as a car dealership with parking at grade.
2The basis of the appeal is from the failure of the City of Toronto to approve the plans and drawings filed in respect of a Site Plan Application within the time period specified in the Planning Act, R.S.O. 1990, c. P. 13, as amended, at which point the Applicant appealed to the Tribunal pursuant to s. 41(12) of that statute.
3The 300 and 328 Bayview Avenue property is located on the west side of Bayview Avenue, south of Labatt Avenue, and east of Old Brewery Lane. The subject property is currently a four-storey building with surface parking used as a car dealership and a four-storey commercial building with parking at grade.
4The Site Plan Application seeks to develop the property with an expanded five storey building to be used as a car dealership. The proposed expanded building is to relocate existing parking and ground floor Gross Floor Area (“GFA”) outside of the Toronto and Region Conservation Authority (“TRCA”) regulated flood plain. The GFA being proposed is reflective of the existing building GFA with additional GFA permitted for additional parking.
5More specifically, the appeal seeks to:
(i) obtain approval of the drawings and plans filed with Site Plan Application on December 24, 2019, as amended by resubmission, plans and drawings filed November 11, 2020, with the City.
(ii) amend the terms of the existing July 4, 1983, Site Plan Agreement affecting 300 Bayview Avenue and the Statement of Approval /Undertaking dated January 8, 2005, affecting 328 Bayview Avenue to permit the proposed development.
(iii) further and, in the alternative to item (ii) above, to settle the terms of a Site Plan Agreement to permit the development to proceed.
ISSUES
6City of Toronto is requiring that the land for road widening be conveyed as a pre-approval condition prior to the Site Plan Approval and that any remedial work of the contaminants found on the site be removed. It is the City’s submission that the City of Toronto Act (“COTA”) authorizes the City to require the owner to provide the City with a road-widening of 4.77 metres (“m”) wide along the entire Bayview Avenue frontage of 300 Bayview Avenue at no cost to the City as a condition of site plan approval. The central question to be answered is when the City should be entitled to the road-widening.
7The City raised further issues with regard to the location of the existing gas lines, the contemplated contamination of the soil on the property and the existing piles and placement of new supporting piles.
THE HEARING
8The Tribunal heard from seven witnesses over the three hearing days. All witnesses were qualified to provide expert evidence in their respective fields.
Appellant’s Witnesses:
Simon Lan – Environmental Engineering
Todd Trudelle – Land Use Planner
John Frankovich – Architect
Adam McEwen – Civil Engineer
City’s Witnesses:
Leontine Major – Land Use Planner
Rick Gibson – Soil & Ground Engineer
Steve Pang – Urban Forestry Planner
Site and Area Context
9The subject site comprises two (2) commercial properties with an overall site area of 11,280.58 square metres (“sq m”) with the existing car dealership at 328 Bayview Avenue having a land area of 8,091.21 sq m and 300 Bayview Avenue being 3,189.37 sq m before any road widenings. The combined site provides for 211 m of frontage along Bayview Avenue and 50.27 m on Labatt Avenue.
10The existing dealership building at 328 Bayview Avenue will remain, while the building at 300 Bayview Avenue will be demolished for the dealership addition/new dealership.
11The surrounding area context is as follows:
North: On the north side of Labatt Avenue are the lands municipally known as 1- 25 Defries Street. A thirty-seven-storey residential condominium building is under construction on that site.
East: CNR and GO Transit-Metrolinx tracks, the Don Trail, Don River and the Don Valley Parkway are all east of Bayview Avenue.
South: A dog park located at Queen Street East and River Street.
West: A townhouse development.
The Proposed Development
12The proposed development is for the construction of a new four-storey motor vehicle sales and service building (car dealership) primarily at 300 Bayview Avenue. The new building will encroach into the 328 Bayview Avenue lands.
13The proposed building contains a showroom, service area, office and parking facilities and has a total gross floor area of approximately 4,465 sq m.
14Access to the new dealership will be by a new two-way driveway off Bayview Avenue.
15A 4.77-m-wide road widening along the entire frontage of 300 Bayview Avenue.
16Within the area to be conveyed to the City, there is a 2.1-m-wide sidewalk proposed, as well as the planting of new trees within the road allowance (all of the existing mature City-owned trees are proposed to be removed).
17The building, the former Watts building, has been identified to have some heritage significance though the property is not designated or listed.
18Discussions have resulted in an agreement that the building can be demolished and that a heritage commemoration strategy be accepted. This heritage commemoration includes displays at grade that provide information on the area, the Don River and the history of the Watts building while providing a designated area on the site that is landscaped and provides seating areas. This has been accepted by Heritage Preservation Services and will also tie in with the future sidewalk along Bayview and future plans for the creation of a “trail” along the west side of Bayview Avenue.
PLANNING CONTEXT
19Mr. Heisey provided the Tribunal with a concise summary of where the Parties stood with respect to the proposed Site Plan.
20Although matters of planning policy has not been raised as an issue, a review of the proposal for conformity and consistency with the Provincial Policy Statement 2020 (“PPS”), the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”), the City of Toronto Official Plan (“City OP”), and Zoning By-law No. 438-86 as they apply to the subject proposal was provided to the Tribunal by Mr. Trudelle.
21Mr. Trudelle opined that the proposal is consistent with the PPS, 2020 as it relates to the use of existing infrastructure and facilities while maintaining active employment uses as set out in Policies 1 1.1 a) and b) (Managing and Directing Land Use) as well as Policy 1.3.1 (Employment).
22He also stated that the proposal conforms to Policy 1.2.1 (Guiding Principles) of the Growth Plan for the Greater Golden Horseshoe, 2020. The proposed new dealership will contribute further to economic opportunities and is compatible with surrounding development.
23The City OP currently identifies the lands within the Downtown and Central Waterfront Area on Map 2 of the City OP. The site is also located within the Queen- River Secondary Plan Area that designates the site as “Existing Use Areas” that does not alter the existing development permissions for the site.
24Land Use Map By-law No. 438-86 zones the subject site I2 D3 (Industrial District) which permits the proposed use. By-law No. 569-2013 is the City’s new comprehensive By-law of which some parts remain under appeal. The subject site is excluded from this by-law.
Applicant’s Case
25Mr. Trudelle stated there is no dispute over the City’s request for the required road widening at no cost to the City. In this instance, the size of the road widening triggers the need for Phase 1 and Phase 2 ESA reports, a City Peer Review and ultimately a full Risk Assessment or remediation of the lands should contaminants be found. The Phase 1 and Phase 2 ESA works are underway. He stated that as identified by Mr. Lan, the full review process with the City and the Ministry of the Environment, Conservation and Parks could take between 2 and 3 years to complete.
26It was his opinion that having worked on similar cases regarding road widenings to be conveyed to the City of Toronto, all had been determined to be appropriately applied as a post-approval condition. The Tribunal was brought to several cases to illustrate this point.
27The Tribunal heard that the existing building can be demolished allowing remediation of the road widening lands to take place by including the road widening transfer as a post-approval condition, this would also permit the issuance of a building permit and construction to proceed while remediation works are ongoing.
28Mr. Trudelle opined, his coordinated approach of demolition, remediation and construction occurring in a simultaneous path reduces the number and length of disruptions to the neighbours and the Bayview Avenue Right-Of Way (“ROW”).
29The Tribunal heard that given the site conditions identified, a full remediation or Risk Assessment for the Conveyance Land will be needed prior to land conveyancing, as per the City of Toronto policy. In order to meet the City of Toronto policy and if land conveyance is a pre-approval condition, the excavation work required for either the full remediation or the Risk Assessment will need to be conducted independently prior to the proposed development activities.
30If the excavation for the Risk Assessment is undertaken separately prior to redevelopment activities, drivers and pedestrians on adjacent roadways as well as residents on surrounding properties would be subjected to extended periods of construction disturbances which are unnecessary if conducted concurrently.
31Mr. Trudelle testified that the fulfillment of ROW requirements set out in the Official Plan are not time sensitive. The Tribunal heard that in circumstances where the City requires a road widening for scheduled improvements, the City is often required to expropriate the lands in order for their schedule to be maintained and the required works to be completed.
32In this situation, the Applicant has not been made aware of any immediate improvements to the Bayview Avenue ROW that would necessitate the immediate transfer of the road widening for the City to carry out necessary improvements and the lands have been identified on the plans and are available to the City to take at any time in the future of which will be secured in the site plan agreement.
33The Tribunal heard that the section of Bayview Avenue between Dundas Street East to the north and Queen Street East to the south is currently identified as a 20 m ROW. The existing width of the ROW is 15.23 m and is bordered by the CN tracks and ROW to the east. For the widening of Bayview to take place, the full amount of the widening is being taken from the west side of Bayview Avenue along the frontage occupied by the subject site. A limiting factor in the future widening of Bayview Avenue is the presence of the Dundas Street East overpass which is constructed on concrete supports that are in close proximity to the paved surface of Bayview Avenue on the west side. The eventual widening of Bayview Avenue at Dundas Street East is not possible until such time as the Dundas Street East overpass is reconstructed, and the concrete foundation is replaced and relocated outside of the future 20 m planned ROW.
34It was further noted by Mr. Lan that the only requirement for the timing of the conveyance and remediation in advance of site plan approval arises from a City of Toronto Council Policy entitled “Policy for Accepting Potentially Contaminated Lands to be Conveyed to the City under the Planning Act” adopted by City Council in 2015.
35He informed the Tribunal that the 2015 Policy was not adopted pursuant to any statutory authority authorizing the policy and there is no provision in COTA or the Ontario Land Tribunal Act directing the Ontario Land Tribunal to consider the 2015 policy, have regard to the 2015 policy, be consistent with the 2015 Policy and/or conform to the 2015 Policy. It was submitted that this Policy should not be followed in respect to the timing of the road widening conveyance.
36Mr. Lan stated that the Applicant agrees to fully comply with the 2015 Policy in every respect with the exception of the timing of the conveyance.
37The Tribunal heard the existing building on 300 Bayview Avenue (the Watts Building) is currently located within the future ROW and more specifically, is constructed on support piles given the location with an identified floodway. These piles extend approximately 30 m down to bedrock. The road widening of 4.77 m will include the area of the support piles that are currently on private property. The City has requested an unencumbered road widening and, in this circumstance, the full removal of the piles to their full depth would be extremely cost prohibitive and the ability to remove these piers in their entirety provides for a complicated and difficult construction and engineering project.
38Mr. McEwen opined the removal of the top 2.5 m of the foundation piles is considered sufficient to accommodate any future shallow services. Beyond 2 m from the future property line the future road widening will be unencumbered and can accommodate deeper municipal services and utilities. It was also noted that the requested 2.1 m new City sidewalk is located 0.3 m from the property line and will ultimately extend to 2.4 m from the future property line. A removal of the existing foundation piles to a depth of 2.5 m provides sufficient space below grade to accommodate the required sidewalk construction and base materials.
39He opined that the existing watermain poses no constraints on the subject development and can be removed and disconnected from the municipal water supply in accordance with City of Toronto standards.
40With regard to the daylighting issue raised as part of the requirement for daylighting in the road widening lands to locate services, the Applicant has responded to this issue as outlined in paragraph [51] below.
City’s Case
41It was the City's submission, that should the Tribunal approval of plans and drawings, the Appellant would be simply promising in a site plan agreement the conveyance of the road-widening to the City after the approval of the aforementioned plans and drawings.
42Ms. Leontine stated that the City's Authority to Require Road-Widening Conveyance pursuant to subsection 114(11) of COTA provides the authority to require the owner of land to provide, to the satisfaction and at no expense to the City, widenings of highways that abut the land subject to satisfying the requirements of subsection 114 (12) of COTA.
43In this case, the Tribunal heard uncontroverted opinion evidence that Bayview Avenue is abutting the property at 300 Bayview Avenue and is shown on Map 3 of the City's Official Plan as an existing major street with a designated 20 m right-of-way.
44Ms. Leontine stated that the conditions of approval which are at issue are nearly always "pre-approval" conditions of site plan control, meaning they are matters to be completed by the owner to the City's satisfaction before the plans and drawings are approved. If not, she opined, the City is at risk of having approved a development that did not implement the policies of the City's Official Plan, contrary to the direction of the Official Plan.
45It was her opinion that a delay in the conveyance may result in the City never obtaining the widening at all, since the process to convey requires active participation by the property owner to provide information and respond to the city's peer reviewer with further information if required, provide legal descriptions and surveys etc. With site plan approvals in place, the owner may proceed to have a building permit issued for the development, construct the development, and have the constructed buildings occupied and businesses operating before the City acquires the widening.
46It was her view, the City's standard process of requiring conveyances as a "pre-approval" condition is designed to incentivize the owner to complete the process in order to acquire the necessary building permits. Once building permits are issued on the basis of approved site plan drawings, she opined there is little incentive for a property owner to complete the process of conveying the land to the City.
47She also noted that the City regularly adds to, and alters, transportation networks in the City, including its roads. City services such as sewers and other water infrastructure, and utilities are also located within the City's rights-of-way. Having the road widening pre-approval ensures the safety of public service providers access to lands that are remediated for safety purposes should the lands be contaminated.
48Mr. Gibson informed the Tribunal that in early 2015, City Council adopted the City's Conveyance Policy. The objective and purpose of the policy is to establish environmental procedures and criteria that:
(a) provide environmental guidelines and a consistent process for staff and the development industry with respect to the conveyance of lands as a condition of approval for a development;
(b) protect the environment and safeguard public health; and
(c) ensure alignment with the City's programs and services.
49The Tribunal heard that as per the City's Conveyance Policy, the City does not require an owner of land to file a Record of Site Condition with the Ministry prior to conveying lands to the City as a condition of Site Plan Approval provided various criteria are met. For conveyance lands greater than 100 sq m, but where the land use is not changing and the average width of the conveyed lands is greater than 1.0 m, a Record of Site Condition is not required to satisfy the Policy; however, the successful third-party peer review of environmental documentation (Phase One Environmental Site Assessment (ESA) and Phase Two ESA) is required to satisfy the requirements of the Policy.
50This necessarily requires the owner to satisfy the City's Conveyance Policy prior to the conveyance of lands to the City pursuant to the development approval process, the City requires the owner to successfully demonstrate to the City that the lands to be conveyed as a condition of a development approval meet the applicable Site Condition Standards published in the document: "Soil, Groundwater and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act" for the intended land use. The City ensures the lands meet the applicable standards by retaining a third-party QP to peer review environmental reports prepared by a QP retained by the owner of the lands. It was his opinion it would not be in the public interest to permit the conveyance otherwise.
51Mr. Gibson stated the City's Conveyance Policy appropriately balances the interests of the public with the interests of the owner. Satisfaction of the Policy prior to the conveyance of the road-widening helps ensure the City will not risk incurring costs associated with the remediation or risk assessment of lands following their conveyance to the City.
52He informed the Tribunal that the City does not wish to bear the financial burden associated with some risk management measures included in a Certificate of Property Use (CPU) that is ultimately issued by the Ministry following its acceptance of a risk assessment.
53He also was clear that the obligation to satisfy the requirements of a CPU fall on the owner of the lands subject to the CPU. He described how a lack of coordination by an owner with the Ministry and the City can result in risk management measures being located within the boundaries of road-widening lands and the City then being frustrated in acquiring the road-widening because the City's policy does not permit the assumption of financial obligations to monitor certain risk management measures.
54He confirmed that the owner has not yet provided the City with the environmental reports required under to be peer reviewed so the City can be assured that the road-widening is appropriately remediated, or risk assessed prior to its transfer to the City.
55Ms. Leontine commented on conflicts between the below grade utilities and tree plantings as shown on the landscape plan and section drawings stating it was her opinion that until such time that the location of utilities is determined, by means of daylighting these utilities, City staff are unable to determine if the tree plantings as shown on the landscape plan and sections are appropriately located.
56Ms. Leontine stated that 300 Bayview Avenue is currently located within the future ROW and is constructed on support piles given the location is within an identified floodway. These piles extend approximately 30 m down to bedrock. The road widening of 4.77 m will include the area of the support piles that are currently on private property. The City has requested an unencumbered road widening conveyance and, in this circumstance, it means the full removal of the piles to their full depth.
FINDINGS
57In coming to its decision, the Tribunal must make a determination that each of the following tests has been met with respect to this site plan control application:
(a) Subsection 3(5) of the Planning Act, R.S.O. 1990, c.P.13, as amended (the "Planning Act"), requires that all decisions in respect of land use planning matters be consistent with and conform to Provincial policy and provincial plans notwithstanding this is an appeal under section 114 of COTA; and
(b) that the proposal:
i. is consistent with provincial policy and conforms with provincial plans;
ii. conforms with the official plan;
iii. is in the public interest;
iv. and represents good planning.
58The Tribunal finds that the Applicant while illustrating the intention to expand on the dealership business conforms to provincial policies with respect to employment and advancing business in the Province, as outlined by Mr. Trudelle through his testimony, the Applicant has not provided sufficient reasoning to substantiate the conveyance of the road-widening along the frontage of 300 Bayview Avenue post-approval of plans and drawings.
59Recognizing that COTA authorizes the City to require the owner to provide the City with a road-widening of 4.77 metres wide along the entire Bayview Avenue frontage of 300 Bayview Avenue at no cost to the City as a condition of site plan approval, the Tribunal has weighed this standard planning process against an individual business interest and found that it is not in the general public’s best interest to agree to the post -approval of the plans and drawings.
60The Tribunal recognizes that the City, in the interest of good planning, has devised an internal review process through which any applicant filing a site plan for approval receives notice from the Chief Planner identifying that, in order to approve plans and drawings the owner must first satisfy specific conditions, such as registration of conveyances of land authorized by COTA to the City.
61The Tribunal understands these standard practices are there to ensure applications are received, reviewed, treated equal and in keeping with the interests of the public and to ensure that all applications are measured against planning instruments such as the OP and provincial interests.
62The Tribunal heard that notice on the requirement of an unencumbered conveyance was advanced to the Appellant as a matter of standard practice, as well, several email exchanges requesting clarification on submitted materials which the Tribunal heard were still outstanding as of the date of the hearing.
63The Tribunal reminds the Appellant that the onus is on them to conduct their due diligence on conformity with the City's Official Plan and its environmental policies. In approving the site plan and drawings prior to having the Applicant provide their due diligence with respect to environmental concerns, the Tribunal finds, that there is no guarantee that the conveyance would be unencumbered or provided to the City when needed for the road-widening.
64From the evidence of Mr. Trudelle, the Tribunal heard that the City has no plans for the road-widening lands. Ms. Major, on the other hand, testified the City does have plans to provide pedestrian connections on Bayview Avenue and to provide sidewalks south of the site to connect to Corktown Common. The Tribunal remains convinced that the pre-approval conveyance of the lands moves the City closer to this objective.
65The Tribunal heard the uncontroverted planning opinion evidence that the City is entitled to the road-widening as a condition of development approval at no cost to the City and free from all encumbrances as per s. 114 of COTA.
66The Tribunal considered the cross examination testimony of Mr. Trudelle who conceded, that if the owner fails to perform on its promise to convey the road-widening, the City will have to incur expenses to either sue under the site plan agreement to compel performance of the promise contained therein or expropriate the road-widening and pay compensation to the owner to implement the policy objectives of the City's Official Plan. The Tribunal’s finds that this is contrary to public interest and cannot consider this result as good planning.
67The Tribunal recognizes that the balance between that of City planning standards and the business interests of the Applicant/Appellant can at times lead to contrary expectations. The Tribunal on hearing the history of this application, recognizes that the Applicant has taken a start-stop approach to satisfying the City’s request for substantive information on which this matter depends to move forward. In doing so, the Applicant has created frustration for both Parties.
68The Tribunal having found both Parties in this matter have failed to agree on many aspects of this proposal, one thing is clear, it will require that the Parties work cooperatively and expeditiously together to ensure both the interest of the Applicant and the requirements of the City on the conveyance is completed in a timely manner and to the satisfaction of the City's environmental and conveyance policy requirements. This includes the requirement of having the City engage in a third party peer review of the comments on all environmental reports to ensure compliance with the standards of the Environmental Protection Act.
69The Appellant testified that conditions surrounding the timing of, and the condition of lands required to be conveyed can be outlined in a Site Plan Agreement.
70This Tribunal must make its decision based on what is presented in evidence at the Hearing. Having received no evidence in the form of a Site Plan Agreement, on consent, and with the understanding that there are a number of issues still to be addressed by the Applicant, particularly surrounding the remediation of the lands, the Tribunal finds it is not in the public interest to permit the Appellant to convey to the City of Toronto a road-widening along the frontage of 300 Bayview Avenue after the approval of plans and drawings pursuant to this appeal under section 114 of the City of Toronto Act, 2006.
71As for the questions raised regarding the necessity of a daylighting exercise, the Tribunal was informed that a daylighting exercise took place on March 29, 2022, with the City of Toronto invited to attend at the site to observe the daylighting process and findings of the gas lines in relation to the new tree plantings to satisfy the City's Urban Forestry division with the provision of required information which were of the concern at this hearing.
72With regard to the cut down and/or removal of the piles from the road-widening lands, the Tribunal finds that through the testimony of Mr. McEwan and on concurrence of the City, this matter can be addressed through the Notice of Approval Conditions.
INTERIM ORDER
73The Tribunal orders that the appeal is allowed, in part, and that the Tribunal will withhold its final order approving the plans and drawings and directs the Appellant to:
(a) satisfy the conditions of approval for the site plan application to the satisfaction of the named City Official and as presented by the City in evidence as Appendix "4" to Exhibit 31 as modified by paragraph 11 of Exhibit 32;
(b) revise all necessary plans and drawings for the Tribunal's approval to illustrate the horizontal and vertical location of the active gas main on the site and resubmit the revisions to the satisfaction of the Director, Community Planning, Toronto & East York District for the City of Toronto in consultation with the Manager, Urban Forestry for the City of Toronto; and
(c) revise Drawing A2.0 (Ground Floor) to remove illustrations of the existing structure (above and below grade) on the site and resubmit the revised drawing to the satisfaction of the Director, Community Planning, Toronto & East York District for the City of Toronto.
“D. Chipman”
d.chipman
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.