Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 22, 2022
CASE NO(S).:
OLT-22-002172
(Formerly PL210041)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
i2 Developments (Old Weston) Inc.
Subject:
Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment
Existing Designation:
Site and Area Specific Policy 441
Proposed Designated:
Site and Area Specific Policy 441
Purpose:
To permit the redevelopment of the property with a 29-storey mixed-use building consisting of residential units and commercial space
Property Address/Description:
290 Old Weston Road
Municipality:
City of Toronto
Approval Authority File No.:
20 169194 STE 09 OZ
OLT Case No.:
OLT-22-002172
Legacy Case No.:
PL210041
OLT Lead Case No.:
OLT-22-002172
Legacy Lead Case No.:
PL210041
OLT Case Name:
i2 Developments (Old Weston) 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:
i2 Developments (Old Weston) Inc.
Subject:
Application to amend Zoning By-law No. 569-2013 - Neglect of the City of Toronto to make a decision
Existing Zoning:
Employment (E)
Proposed Zoning:
Commercial-Residential (CR) with site-specific height, massing, and parking provisions
Purpose:
To permit the redevelopment of the property with a 29-storey mixed-use building consisting of residential units and commercial space
Property Address/Description:
290 Old Weston Road
Municipality:
City of Toronto
Municipality File No.:
20 169194 STE 09 OZ
OLT Case No.:
OLT-22-002184
Legacy Case No.:
PL210043
OLT Lead Case No.:
OLT-22-002172
Legacy Lead Case No.:
PL210041
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
i2 Developments (Old Weston) Inc.
Subject:
Application to amend Zoning By-law No. 438-86 - Neglect of the City of Toronto to make a decision
Existing Zoning:
Employment (E)
Proposed Zoning:
Commercial-Residential (CR) with site-specific height, massing, and parking provisions
Purpose:
To permit the redevelopment of the property with a 29-storey mixed-use building consisting of residential units and commercial space
Property Address/Description:
290 Old Weston Road
Municipality:
City of Toronto
Municipality File No.:
20 169194 STE 09 OZ
OLT Case No.:
OLT-22-002183
Legacy Case No.:
PL210042
OLT Lead Case No.:
OLT-22-002172
Legacy Lead Case No.:
PL210041
Heard:
June 9, 2022 by video hearing
APPEARANCES:
Parties
Counsel
I2 Developments (Old Weston) Inc. (“Applicant”)
Michael Foderick Daniel Angelucci
City of Toronto (“City”)
Gabe Szobel
Delta Property Holdings Inc. c/o Sequoia Grove Homes Inc. (“Delta”)
Adrian Frank Jason Park (in absentia)
DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL
1The Tribunal convened a settlement hearing with respect to this matter. The Applicant made an application to the City for an Official Plan Amendment (“OPA”) pursuant to s. 22 (17) and two Zoning By-law Amendments pursuant to s. 34 (11) of the Planning Act to permit a 29 storey mixed-use development on a property known municipally as 290 Old Weston Road (“Subject Property”). When the City did not make a decision within the statutory timeframe provided for in the Planning Act, the Applicant filed the appeals.
2All three Parties of record in respect of this matter are in attendance in these proceedings. Exhibit 2 is the Affidavit of Michael Bissett and Exhibit 3 is the OLT Settlement Hearing Document Book. All Parties consented to the content of the Exhibits.
3Mr. Foderick, Counsel for the Applicant, described that through considerable concerted efforts of all involved in this matter, the Applicant has come to a proposed settlement with both the City and Delta. Evidence on this proposed settlement (“proposal”) is what is before the Tribunal today. Mr. Foderick also clarified three matters with respect to the planning instruments required to implement the proposal, they are as follows:
a. It has been determined by the City and the Applicant that the application for an OPA that was originally before the City and now in front of this Tribunal is no longer required. The Applicant will be withdrawing its appeal on this matter;
b. It has also been determined by the City that this application needs only to amend one of the City-wide Zoning By-law’s (“ZBA”) being By-law No. 569-2013 (“ZBL 569-2013”). No amendment is required to By-law No. 438-86 as the CR zoning in ZBL 569-2013 is now in full force and effect. Therefore, the Tribunal will only be dealing with one ZBA in this proceeding, being ZBL 569-2013; and
c. There is an application that is before the City for a draft Plan of Subdivision that with the proposal as presented is no longer required. The Applicant will be withdrawing this application to the City.
4Mr. Szobel, on behalf of the City, confirmed that the City’s position with respect to the appeals are to be dealt with by the Tribunal and the disposition of the planning instruments described by Mr. Foderick is that of the City.
5The Tribunal agrees and finds that the only planning instrument that is required to implement the proposal is an amendment to ZBL 569-2013.
6The parties called one land use planning witness. Michael Bissett is qualified as an expert in the discipline of land use planning and gave evidence evaluating the development that is the subject of the proposed settlement against relevant public policy.
BACKGROUND
7Suffice it to say the proposal has a relatively long application history. A brief summary is as follows:
a. A pre-application meeting was held in June 2019. A combined OPA and ZBA application followed in July 2020;
b. City Council directed staff to conduct a community consultation meeting which was held in November 2020.
c. The Applicant appealed the Application to the Tribunal in December 2020;
d. As the planning policy of the area was changing, the City staff recommended to City Council in a Directions Report in April 2021 that staff continue discussions with the Applicant and other stakeholders to determine an acceptable land use framework and built form for the Subject Property;
e. Subsequent to the appeal a draft Plan of Subdivision application was made to the City and a number of revisions to the proposal were made to address comments received.
f. A proposed settlement was made to the City on May 4, 2022 which included revised Architectural Plans (“Settlement Plans”) found at Exhibit 2 Tab H. City Council supported the Settlement Plans on May 11 2022.
THE PROPOSAL
8The proposal is a mixed-use development consisting of:
a. A 29-storey building with a maximum floor plate of 790 square metres (“sq m”), maximum height of 91.3 metres (“m”) exclusive of mechanical penthouse;
b. A maximum of 369 residential units including a minimum of 9% three bedroom and 21% two bedroom units;
c. A stand alone six storey non-residential building fronting on Old Weston Road of a minimum of 1,960 sq m:
d. A total Gross Floor Area of 27,438 sq m and Floor Space Index of 3.97:
e. The conveyance of approximately 660 sq m of public parkland;
f. Access from Old Weston Road in conjunction with Delta; and
g. Mutually agreed upon s. 37 benefits that will become a Schedule to the ZBA.
SITE AND AREA CONTEXT
9The Subject Property is generally triangular in shape with an area of 6,919 sq m. The eastern property line is irregular and contains small pockets that have frontage of approximately 56 m on Old Weston Road. Between these pockets are existing semi detached dwellings. The Subject Property has been vacant for a number of years.
10To the North – is the Delta Bingo commercial property, to the West is the CP rail line and to the South a triangular employment lot.
11The Subject Property is in close proximity to three rail corridors and is evolving from a number of industrial and auto repair facilities as new development comes to the area. This evolution will continue with the addition of the St. Clair West-Old Weston Go/Smart Track Station located north of the Subject Property at St. Clair Avenue West. The immediate area consists of a variety of housing and building typology which is predominantly semi-detached dwellings with a variety of institutional, commercial and employment uses found throughout the neighbourhood.
12The Subject Property is well served by public transit with the existing Toronto Transit Commission St. Clair streetcar corridor less than 250 m to the north. There are a number of additional transit facilities now being planned near the Subject Property which will improve the areas existing, robust transit network.
PROVINCIAL POLICY
13Mr. Bissett’s review of provincial policy began with s. 2 of the Planning Act, noting that the City and Tribunal ‘shall have regard to’ matters of provincial interest. Regarding this matter, he made reference to provincial interests that relate to the adequate provision of existing services including transit; orderly development of safe and heathy communities; accessibility for persons with disabilities; the adequate provision of a full range of housing, including affordable housing; the coordination of planning activities of public bodies; the appropriate location of growth and development; development that is designed to be sustainable, promotion of sustainable development; and the promotion and design of a high quality built form.
14Mr. Bissett reviewed the 2020 Provincial Policy Statement (“2020 PPS”) in its entirety and made special reference to important relevant policies including:
a. Promoting efficient development and land use patterns;
b. Accommodating an appropriate affordable and market-based range and mix of residential units;
c. The integration of land use planning, growth management, transit supportive development;
d. The efficient use of land and infrastructure;
e. Support active transportation and be transit supportive;
f. Identify appropriate areas for intensification with appropriate development standards;
g. Provide for an appropriate range and mix of housing options and densities;
h. Directing development of new housing to locations that have an appropriate level of infrastructure and public service facilities; and
i. Establishing development standards which minimize the cost of housing and facilitate compact form.
15Mr. Bissett gave evidence with respect to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) as amended. He noted that the Growth Plan policies have been strengthened in each iteration. He made special note that the Subject Property has the characteristics of a “Strategic Growth Area” and is appropriate for intensification in keeping with the Growth Plan’s intent. Therefore, it can be considered part of the City’s planning framework as a location for major population and employment growth and a location which can accommodate and support transit both at a regional and local level. Other relevant policy considerations include:
a. Support the achievement of complete communities that have a diverse mix of land uses and mix of housing options with convenient access to transit facilities;
b. Give priority to intensification and higher densities in strategic locations to make efficient use of land, infrastructure, and transit. while “optimizing” the use of the land supply and infrastructure;
c. Provide a desirable and appropriate form of infill development within the delineated built up area;
d. Is considered a “Brownfield Site” and would meet the definition of a “major transit station area” because it is close to the planned St. Clair-Old Weston GO/Smart Track station. It is a clear policy of the Growth Plan that “planning will be prioritized for major transit station areas on priority corridors including zoning in a manner that implements the policies of this Plan”; and
e. The integration of infrastructure planning, land use planning and infrastructure investment (including Transportation system planning) will be coordinated.
16In Mr. Bissett’s professional opinion, the proposal has appropriate regard to the matters of provincial interest found in s. 2 of the Planning Act, is consistent with the 2020 PPS, and conforms to the Growth Plan.
17The Tribunal accepts Mr. Bissett’s evidence in its entirety and finds the proposal has appropriate regard to the matters of provincial interest found in s. 2 of the Planning Act, is consistent with the 2020 PPS, and conforms to the Growth Plan
MUNICPAL POLICY
18Evidence demonstrates that the City has a very robust, detailed, and iterative planning policy regime made up of an official plan, secondary plans, and guidelines to assist in the evaluation and review of development proposals. Suffice to say, City plans have regard to, are consistent with or conform to provincial policy.
19Mr. Bissett in his testimony spoke to the planning regime within the context of the Subject Property by evaluating all the relevant policy documents in their entirety to demonstrate how the proposal either conforms to the in-force policy or has appropriate regard to the emerging policy framework for the area.
City of Toronto Official Plan (“Toronto OP”)
20The Subject Property is designated as General Employment as identified on Map 17 – Land Use Plan which permits a broad range of business and economic activity.
21Mr. Bissett opined that the proposal conforms to the Toronto OP. He proffered in his witness statement and evidence a complete listing of relevant Toronto OP policies to demonstrate how the proposal conforms including:
a. Growth Management Policies that illustrate how the City will accommodate future population and job growth to 2031; growth in the City “will be steered to areas that are well served by transit, the existing road network and which have a number of properties with redevelopment potential;
b. The proposal is of high quality urban design and is in keeping with the Built Form Policies. It recognizes the importance of the public realm and is an essential ingredient to the building of a livable City. Much care has been taken in the massing, appropriate transition to adjoining properties, surrounding neighbourhoods and the existing rail corridor; ensuring high quality exterior design elements; limiting surface parking; to provide access to outdoor amenity space and makes improvements to adjacent sidewalks, public realm, and the streetscape.
c. The recognition of the need to support a full range of housing with respect to form tenure and affordability. New housing supply will be encouraged through intensification and infill.
d. The encouragement that sites in areas well serviced by transit are integrated in an effort to achieve a more intense, mixed use pattern of development, have better pedestrian and cycling conditions and minimize the need for long-term costly infrastructure;
e. Makes provision for new streets to improve the transportation network and support future growth in this area of the City. The Davenport Road connection has the clear effect of meeting this important City objective; and
f. The proposal will see the conveyance of 660 sq m of public parkland that will help enhance and expand the parkland system especially important in this evolving area.
Site and Area Specific Policy 441 (“SASP 441”)
22SASP 441 is in-force and applies to the Subject Property by permitting “light employment and residential uses”. There are no other restrictions introduced in SASP 441. The planner is of the opinion that the proposal conforms to the policies as amended through Official Plan 231.
Evolving City Planning Policy
23The City is changing at a rapid pace and its planning policy is adjusting in an effort to keep up with and meet the challenges of the reality of this evolution. Hence, there are a number of recently adopted, or ‘in the works, planning policies directions that are not yet adopted by City Council or were not in-force when this application was deemed complete. Mr. Bissett in his evidence spoke to those relevant to demonstrate how the proposal has had regard for each of these recent planning initiatives. His testimony included reviews of:
a. Official Plan Amendments 479 and 480 which provide updated City policy with respect to built form and public realm;
b. The Keele-St. Clair Local Area Study – is in process for a portion of the City in which the Subject Property is located. It was intended to establish a vision and a planning framework for development, zoning amendments and urban design guidelines. Planning and Housing Committee has considered this report and it is part of the current Municipal Comprehensive Review and Growth Plan conformity exercise. In keeping with the directions found in the study, the proposal is in an area that is recognized as an area that may be suitable for redevelopment and contribute to complete communities.
c. The Subject Property has been considered fit for conversion to a Mixed-Use Area. Hence, the proposal serves to demonstrate the feasibility and appropriateness of a Mixed-Use designation. Direction given to future secondary plans include: a variety of building types and heights up to 35 storeys; provision of a pedestrian-scale streetwall; lining the street where possible with active uses and ground floor entrances flush to grade; and providing building setbacks that support generous public sidewalks, planting of street trees and pedestrian amenities;
d. The policy outcome of the Keele-St. Clair Local Area Study was adopted by the City as Official Plan Amendment 537 in May, 2022.
e. St Clair-Weston Area Protected Major Transit Station Area (“PMTSA”) - Official Plan Amendment 537 promotes the delineation of a PMTSA to advance provincial and City planning policy objectives. Policies in the PMTSA will enable the City to use Inclusionary Zoning to secure affordable housing, it sets a minimum residential and employment target; and sets a minimum density of 2.5 Floor Space Index on the Subject Property.
f. St. Clair Avenue West Area Transportation Master Plan (“TMP”) – began with a notice of commencement in September 2015 to meet the requirements of an Environmental Assessment. The purpose was to investigate possible solutions to the traffic congestion in the area. Included in this investigation was the extension of Davenport Road. There has not been an Official Plan Amendment brought forward as of yet to implement road improvements, but the proposal incorporates those necessary as part of its design.
24In conclusion, Mr. Bissett opined that the proposal has appropriate regard for Official Plan Amendments 479 and 480; the Keele-St. Clair Local Area Study as implemented by Official Plan Amendment 537; the St Clair-Weston Area Protected Major Transit Station Area as implemented by Official Plan Amendment 537; and the St. Clair Avenue West Area Transportation Master Plan. The Tribunal agrees.
City Guidelines
25Mr. Bissett provided testimony with respect to the two City Guidelines that are relevant to this proposal and their principles and directions are incorporated into the Settlement Plans. Although not statutory policy, they give important guidance to prospective developments. He reviewed both to ensure that the proposal had appropriate regard for:
a. The City-wide Tall Building Design Guidelines adopted in 2013; and
b. The Guidelines for New Development in Proximity to Railway Operations that address the significant changes in both Federal and some provincial land use acts. The Guidelines also now provide direction when converting industrial or commercial property into a residential use when in close proximity to a rail corridor. Mr. Bissett took some time in his evidence to show how these guidelines have been met on the site to ensure the safety of future residents.
26The Tribunal agrees with and accepts Mr. Bissett’s uncontested evidence and finds that the proposal has appropriate regard to the evolving City planning policy, the City-wide Zoning By-law interpretation and City guidelines in its entirety.
City-wide Zoning By-law
27ZBL 569-2013, as amended, zones the Subject Property E1.0 (x288) which permits a range of employment uses and has a height limit of 23 m. The Applicant and City are close to finishing the preparation of a ZBA that will be appropriate for attachment to the Tribunal’s Final Order. The Tribunal is prepared to issue a Final Order upon being advised by the City Solicitor the ZBA is satisfactory to appropriate City staff and a copy has been received for the Tribunal’s review and approval.
28In conclusion, Mr. Bissett opined that the proposal conforms to all of the City’s in-force statutory documents, has appropriate regard for relevant policy documents that were adopted and brought into force after the application was deemed complete and has had appropriate regard for relevant City guidelines. He emphasized that the proposal:
a. Is an appropriate location for intensification, is well served by transit, is in keeping with Provincial policies with respect to the “optimization” of the use of land, infrastructure, services and transit and the Mixed Use designation that is proposed for the Subject Property is recognized as one of the four land use designations where growth is intended to happen.
b. The proposal is consistent with the in-force land use permission of SASP 441 as it has commercial and residential uses in single or mixed-use buildings. The proposal will create a balance of high quality commercial, residential, institutional, and open space uses. The location of the dwelling units are situated in accordance with recommended rail separation.
c. The height and density are contextually appropriate, and the massing of the buildings conform with the built form policies of the Toronto OP and perform well within the area context. The proposal has a podium base and a slender tower and generally fits within a 45 degree angular plane to the nearest “Neighbourhoods” designated areas. A development with a 3.95 Floor Space Index is both appropriate and desirable on the Subject Property.
d. The proposal is of a high quality built form and urban design that is both appropriate and desirable. It will fit harmoniously with both the existing and planned context, and conforms to the built form, open space and transportation policies. It improves the public realm and is of a contemporary design that will result in significant urban design improvements over the existing site conditions.
Section 37 Benefits
29The Applicant and the City have negotiated a comprehensive package of community benefits that will be secured in a s. 37 Agreement. The Applicant will either convey 18 Affordable Rental Units and administrative space to a non-profit organization or provide a cash contribution. The Executive Director of the Housing Secretariat will determine if the proposed Affordable Rental Units are an appropriate addition to the City’s housing portfolio. In the Council Resolution approving the proposed settlement, there is a wide-ranging series of conditions that will find their way into a s. 37 Agreement.
30Mr. Bissett is of the opinion that the proposed s. 37 conditions are appropriate, represent good planning and are in the public interest. All required conditions will become a Schedule to the ZBA. Mr. Szobel confirmed this approach is satisfactory to the City.
31The City and the Applicant both advised the Tribunal of the importance of having a Final Order issued by the Tribunal before August 12, 2022. On that date new Community Benefits policy will come into force in the City and should the Final Order not be issued; a new Community Benefits Agreement would need to be negotiated making use of the new policy framework.
32With the Tribunal issuing this Decision, meeting the August 12 2022 deadline is in the hands of the City and the Applicant. One would expect to see the draft ZBA well before the August date, so the Tribunal has sufficient time to review, approve the ZBA for attachment to the Final Order. Both the Applicant and the City assured the Tribunal that the ZBA is very close to being finalized.
33The Tribunal directs that the draft ZBA be submitted to the Case Coordinator no later than July 22, 2022 at 4:30 p.m. to ensure the Tribunal has the necessary time to review, approve and issue the Final Order.
TRIBUNAL FINDINGS
34The Tribunal finds that the City has well established planning policy for the area surrounding the Subject Property and followed a careful, complete, and comprehensive planning review of the applications received from the Applicant. The proposal aligns with established policy principles by establishing in this area of transition, a compact urban form, making efficient use of land and infrastructure, optimizing infrastructure including existing transit resources, and serves to make appropriate use of an under utilized brownfield site. The built form is of a high quality design and is in keeping with the changing neighbourhood character and the massing of the building provides an appropriate transition to the existing neighbourhoods. It is indeed an appropriate location for the development of this nature.
35The application is local in context, but it is essential one recognizes the evolution of the provincial policy direction which identifies that in areas with the characteristics of a “Strategic Growth Area”, which are considered a major transit station area and are a “Brown Field” site, are areas with intensification potential. They are intended to: be a focal point of residential and employment growth; a location of compact urban form within built up areas of urban municipalities; make efficient use of existing infrastructure by “optimizing” the use of land, infrastructure, and transit; be of an urban design that protects and enhances the neighbourhood and streetscape; and most importantly provide a policy context to encourage much needed housing supply.
36The supply of all forms of housing is an important policy objective of both the Province and the City. Provincial and City housing policy has weight in the Tribunal’s consideration of the proposal.
37The Tribunal agrees that an OPA is not necessary to implement this proposal. The City planning framework has evolved in a way that clearly establishes that the proposal is contemplated for the area.
38Although not in the Order, the Tribunal directs that the appeal with respect of this OPA will be withdrawn well before the Final Order is issued. Not having this withdrawal may impede the issuance of the Final Order.
39The Tribunal is pleased that in this matter only one of the two City-wide Zoning By-laws require an amendment and finds that only ZBL 569-2013 requires disposition in this matter. With respect to the Plan of Subdivision, it is not before the Tribunal but again the Applicant has committed to withdraw that application from the City and the Tribunal expects this to be done.
40The Tribunal accepts Mr. Bissett’s evidence in its entirety and finds that the ZBA when constructed in keeping with and substantially in accordance with the Settlement Plans found in Exhibit 2 Tab H, have appropriate regard to matters of provincial interest found in s. 2 of the Planning Act, is consistent with the 2020 PPS and conforms to the Growth Plan. With respect of municipal policy, the Tribunal finds that the proposal conforms to the Toronto OP, and SASP 441, it has appropriate regard to the evolving City planning policy, the City-wide Zoning By-law interpretation and City guidelines in their entirety.
41The Tribunal recognizes that, as both Messrs. Angelucci and Szobel stated, the Applicant and City are aligned and very close to finalizing a draft ZBA appropriate for the review and approval of the Tribunal. The time frame of the issuance of a Final Order in this matter was clearly stated during the course of the hearing and is further set out in section [32] and [33] above.
42The Tribunal finds that the proposal, as presented, is appropriate and a desirable addition to the area, represents good land use planning, is consistent or in conformity with and meets the objectives of all requisite public policy and is in the public interest.
43Therefore, the Tribunal is prepared to allow the appeal in part and give approval to the ZBA in principle subject to the conditions found in the Order.
INTERIM ORDER
44Accordingly, the Tribunal Orders.
a. That the appeal be allowed in part, and that the Zoning By-law Amendment is approved in principle, substantially in accordance with the plans and drawings found in Exhibit 2 Tab H.
b. The Tribunal will withhold its Final Order until the Tribunal has been advised that the final form of the Zoning By-law Amendment is to the satisfaction of the City Solicitor and Chief Planner and Executive Director, City Planning, and that it includes those terms set out in City Council’s decision on Item CC43.24 adopted on May 11 and May 12, 2022.
c. The Tribunal will receive a copy of the final draft Zoning By-law Amendment for review, approval to be attached to the Final Order.
d. The panel member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the issuance of the Final Order.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
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.