Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 24, 2022
CASE NO(S).: OLT-21-001283
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: HS4 Finch Investments Inc.
Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment
Existing Designation: Mixed Use Areas
Proposed Designated: Site Specific – to be determined
Purpose: To permit a mixed use building with four built form components
Property Address/Description: 2370 Finch Avenue West
Municipality: City of Toronto
Approval Authority File No.: 17 262422 WET 07 OZ
OLT Case No.: OLT-21-001283
OLT Lead Case No.: OLT-21-001283
OLT Case Name: HS4 Investments Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: HS4 Finch Investments Inc.
Subject: Application to amend Zoning By-law Nos. 7625 and 569-2013– Neglect or Refusal of application by the City of Toronto
Existing Zoning: Commercial Residential and Mixed Use Commercial Zone
Proposed Zoning: Site Specific – to be determined
Purpose: To permit a mixed use building with four built form components
Property Address/Description: 2370 Finch Avenue West
Municipality: City of Toronto
Municipality File No.: 17 262422 WET 07 OZ
OLT Case No.: OLT-21-001284
OLT Lead Case No.: OLT-21-001283
Heard: June 14, 2022 by Video Hearing
APPEARANCES:
Parties City of Toronto HS4 Finch Investments Inc.
Counsel K. Czajkowski R. Cheeseman S. Fleming
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JUNE 14, 2022 AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1HS4 Finch Investments Inc. (“Applicant”) appealed the failure of the City of Toronto (“City”) to adopt the requested Official Plan Amendment (“OPA”) pursuant to s. 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) and the failure of the City to make a decision on the Zoning By-law Amendment (“ZBLA”) within the statutory timeframe pursuant s. 34(11) of the Act. Both applications relate to the property located at 2370 Finch Avenue West, in the City (“Subject Property”).
Procedural Matters
2There was no issue with service of Notice of the first CMC and the Tribunal was in receipt of the Affidavit of Service of Darlene Hornsby dated February 22, 2022. The Tribunal marked the Affidavit of Service as Exhibit 1 and no further notice was required.
Proposal
3The applications to facilitate the development of the Subject Property were originally submitted on November 14, 2017 and were declared complete January 12, 2018. The applications went through a number of revisions to respond to comments from the City and public bodies.
4The current proposal before the Tribunal is for one 11-storey mixed-use building at the front of the Subject Property connected to one six-storey apartment building with two levels of underground parking at the rear of the Subject Property. There are a total of 192 dwelling units, 196 vehicular parking spaces and 151 bicycle parking spaces (together referred to as the “Proposed Development”). The Proposed Development will be a total Gross Floor Area (“GFA”) of 14,652.6 square metres or a Floor Space Index (“FSI”) of 3.72.
5The OPA attached as Schedule “A” to this Decision will amend the Emery Village Secondary Plan (“Secondary Plan”) for the Subject Property, to permit a total maximum GFA of 14,655 square metres (equal to a Floor Space Index of 3.72) whereas the Secondary Plan currently permits a maximum Floor Space Index of 2.97.
6The ZBLA attached as Schedule “B” to this Decision will amend Zoning By-law No. 569-2013 and re-zone the Subject Property from CR 2.5 (c1.0; r2.5) SS2 (x211) Zone to (H) CR 2.5 (c1.0; r2.5) SS2 (614) Zone, which will permit the Proposed Development. The ZBLA will also permit a GFA up to a maximum of 14,655 square metres of which a minimum GFA of 210 square metres must be non-residential use. The proposed ZBLA provides the following:
a. Setbacks to reflect the proposed building design with certain yard encroachments;
b. A maximum building height of 11 storeys and 6 storeys for the highest portions with certain exemptions;
c. Certain percentages of dwelling units by number of bedrooms;
d. A reduction in minimum parking in exchange for car-share parking spaces;
e. That the new zoning provisions apply to the whole of the site regardless of future severance; and,
f. A Holding Symbol with one condition to be satisfied prior to removal.
7The ZBLA further deletes provisions in Exception 211. In accordance with s. 37 of the Act, the ZBLA also requires that the Applicant enter into an agreement to pay money to the City to fund the capital facilities cited in the Secondary Plan in exchange for increased height and density related to the Proposed Development.
8The Holding Symbol within the ZBLA can be removed with the submission of a Noise and Vibration Study addressing any noise and vibration concerns to the satisfaction of the Chief Planner and Executive Director, City Planning Division.
Subject Property
9The Subject Property is an irregularly shaped parcel located on the north side of Finch Avenue West, just west of Weston Road. The Subject Property has an area of 3,937.9 square metres with 38.1 metres fronting onto Finch Avenue West and currently, contains a one-storey drive-through car wash facility.
10The area to the immediate north of the Subject Property is the location for a proposed new future Public Road 2A. North of this proposed road are mainly employment areas occupied by low-rise buildings.
11To the immediate south of the Subject Property is Finch Avenue West, which contains a mix of commercial and residential uses. Directly across from the Subject Property to the south is a 13-storey apartment building, which contains retail located at grade level.
12The areas to the immediate east and west of the Subject Property contain one-storey restaurants.
13The Subject Property is identified within an “Avenues” designation on the Urban Structure of the OP and is designated as “Mixed Use Areas” on the Land Use Plan. The Secondary Plan designates the Subject Property as “Mixed Use Areas C1” which permits, among others, a broad range of commercial, residential and institutional uses in single use or mixed use buildings.
14Zoning By-law No. 569-2013 currently zones the Subject Property as Commercial Residential CR 2.5 (c1.0; r2.5) SS2 (x211) which permits, among others, a broad range of commercial uses with dwelling units in mixed use buildings, apartment buildings, and townhouses. The maximum overall density permitted is 2.5 times the lot area and the SS2 standards allow a maximum building height of 14.0 metres. Under Exception 211, the Subject Property is also subject to the City of North York Zoning By-law No. 7625 as amended, which zones the Subject Property as Mixed Use Commercial Zone [C5(H2)].
EVIDENCE
15Prior to the scheduled second Case Management Conference (“CMC”), the Tribunal was advised that a settlement had been reached between the Parties. The Parties jointly requested that the Tribunal approve the OPA and ZBLA in principle. It was further requested that the Final Order be withheld pending:
a. submission to the Tribunal of the OPA and ZBLA in their final forms; and,
b. notification from the City Solicitor that the s. 37 Agreement has been executed and registered on title to the Subject Property to the satisfaction of the City Solicitor.
16Following some discussion, the Parties agreed that the City Solicitor will notify the Tribunal on or before July 15, 2022 that conditions (a) and (b) above have been satisfied and will request a Final Order, or in the alternative, will provide the Tribunal with a status update.
17As evidence in the hearing, the Tribunal received the following exhibits, which were identified sequentially during the hearing:
a. Exhibit 1: The Original Affidavit of Service of the Notice
b. Exhibit 2: Affidavit of Robert Walters
c. Exhibit 3: Proposed Official Plan Amendment No. 581
d. Exhibit 4: Proposed Zoning By-law Amendment No. 569-2013
18The Applicant called Robert Walters as its planning witness who was qualified by the Tribunal, without objection, to provide expert evidence in the area of Land Use Planning. Mr. Walters’ CV and Acknowledgement of Expert’s Duty were appended to his Affidavit, which was filed as Exhibit 2. He provided a contextual and land use planning rationale to support the proposed settlement and reviewed the Provincial Policy Statement, 2020 (“PPS”), A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), Official Plan (“OP”) and Secondary Plan.
Provincial Policy Statement, 2020 (“PPS”)
19The PPS outlines the policies to manage and direct land use to achieve effective and efficient development and land use patterns.
20Policy 1.1.1(a) of the PPS provides for a healthy, livable and safe community by promoting efficient development and a land use pattern that sustains the financial well-being of the Province of Ontario and the City over the long term. In his affidavit, Mr. Walters opined that the OPA and ZBLA facilitate high density residential development in compact form, which will utilize and support public transit. Mr. Walters testified that the Finch Avenue West corridor is currently under construction with the Light Rail Transit (“LRT”) expansion slated to be completed in 2023.
21Policies 1.1.3.2(a), (b), (e) and (f) of the PPS speak to land use patterns within settlement areas. Mr. Walters opined that the OPA and ZBLA efficiently make use of land and resources and will make appropriate use of existing and planned infrastructure. Mr. Walters reiterated that the Proposed Development is supportive of transit as it will make use of the planned LRT along the Finch Avenue West corridor.
22Mr. Walters opined that the Proposed Development is consistent with the Housing Policies found within the PPS. Policy 1.4.3(b) directs planning authorities to provide an appropriate range and mix of housing options and densities by permitting housing options to meet the requirements of current and future residents and permitting all types of residential intensification. The Proposed Development will provide apartment dwellings as a cost-effective housing option providing for residential intensification, which is transit supportive and uses existing infrastructure and public service facilities.
A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)
23The policies within the Growth Plan provide direction on where growth should be distributed and how it should occur regarding development, population growth and employment.
24In his affidavit, Mr. Walters opined that the Subject Property is part of the built-up area fronting a Priority Transit Corridor in the Growth Plan. In accordance with Policies 2.2.1.4(a) and (c), the OPA and ZBLA will permit high density apartments which will add to the diverse range and mix of housing options. This is supportive of a complete community and accommodates residents at all stages of life, household sizes and incomes.
25Mr. Walters also testified that the increase in density permitted by the OPA and ZBLA will assist in achieving a minimum density target of 160 residents and jobs combined per hectare along a planned LRT line, which is supportive of Policy 2.2.4.3(b).
City Official Plan (“OP”) and Emery Village Secondary Plan (“Secondary Plan”)
26Mr. Walters provided the following account of the relevant OP and Secondary Plan provisions and policies applicable to this matter.
27In his affidavit, Mr. Walters noted that the OPA and ZBLA are supported by studies and materials that have been reviewed by the City and other public bodies who determined that they conform to the OP policies.
28The Built Form Principles contained within the Secondary Plan have been met with the Proposed Development. The building massing provides adequate street definition with the 11-storey mixed use building incorporating grade-level retail and commercial along Finch Avenue West. Loading and service areas do not face the street, underground parking entrances are at the side of the buildings and there is limited surface parking.
Good Land Use Planning and in the Public Interest
29Mr. Walters opined that the Proposed Development facilitated by the OPA and ZBLA is compatible with the surrounding area, is in the public interest and represents good planning.
CONCLUSION
30The Subject Property is designated “Avenues” and fronts a major roadway, being Finch Avenue West. The Finch Avenue West corridor is currently under construction with the LRT expansion scheduled to be completed in 2023. The Subject Property is prime to be considered for redevelopment and higher height and density given its location. It is adjacent to transit and will be compatible with other tall residential and mixed use buildings in the area.
31The PPS, Growth Plan, OP and Secondary Plan all call for compatible intensification for complete communities to offer a range and mix of housing options to current and future residents. The Tribunal finds that the Proposed Development satisfies all statutory tests as contained in Mr. Walters’ affidavit.
32The Tribunal accepts and agrees with Mr. Walters’ opinions and finds that the OPA and ZBLA may be approved in principle, subject to the holding provision. The Tribunal will withhold its Final Order pending receipt of the final forms of the OPA and ZBLA and confirmation from the City Solicitor that the s. 37 Agreement has been finalized and registered on title to the Subject Property.
INTERIM ORDER
33The Tribunal orders that the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 34 below, and the Official Plan Amendment and Zoning By-law Amendment set out in Schedules A and B to this Interim Order are hereby approved in principle.
34The Tribunal will withhold the issuance of its Final Order contingent upon satisfactory fulfillment of the following pre-requisite matters:
a. Transmission to the Tribunal by the City Solicitor of the final forms of the amendments to the City of Toronto Official Plan and Zoning By-law No. 569-2013 generally in accordance with Schedules A and B to this Interim Order; and,
b. Confirmation by the City Solicitor that an agreement pursuant to s. 37 of the Planning Act has been executed by the Applicant and the City, and is registered on title to the Subject Property.
35The Tribunal Member is not seized but will remain available for case management.
36If the Parties do not satisfy the pre-requisites set out in paragraph 34 above, and do not request the issuance of the Final Order on or before July 15, 2022, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Official Plan Amendment and Zoning By-law Amendment for the issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
37The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.
“C. Hardy”
C. HARDY 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.
SCHEDULE A
SCHEDULE B