Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 29, 2022
CASE NO(S).: OLT-22-003981 (Formerly PL160225)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 169 The Donway West Inc.
Subject: Application to amend Zoning By-law No. 7625 - Refusal or neglect of the City of Toronto to make a decision
Existing Zoning: C3(8)
Proposed Zoning: RM6(xxx)
Purpose: To permit the development of two residential buildings (34 and 39 storeys) atop a two storey base building containing retail and office uses.
Property Address/Description: 169 The Donway West
Municipality: City of Toronto
Municipality File No.: 15 227717 NNY 25 OZ
OLT Case No.: OLT-22-003981
Legacy Case No.: PL160225
OLT Lead Case No.: OLT-22-003981
Legacy Lead Case No.: PL160225
OLT Case Name: 169 The Donway West Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 169 The Donway West Inc.
Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment
Existing Designation: Commercial (COM) with a Sub-Centre (SC) overlay
Proposed Designated: Site Specific to be determined.
Purpose: To permit the development of two residential buildings (34 and 39 storeys) atop a two storey base building containing retail and office uses.
Property Address/Description: 169 The Donway West
Municipality: City of Toronto
Approval Authority File No.: 15 2277170 NNY 25 OZ
OLT Case No.: OLT-22-003992
Legacy Case No.: PL160334
OLT Lead Case No.: OLT-22-003981
Legacy Lead Case No.: PL160225
Heard: in writing
APPEARANCES:
Parties
169 The Donway West Inc. (“Applicant”)
Counsel
Sidonia Tomasella
AMENDING DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL
1These Appeals were before this Panel Member and determined by way of a Decision and Interim Order (“Interim Order”) issued on February 5, 2019, following a public hearing held on May 2, 2018, by the predecessor tribunal, the Local Planning Appeal Tribunal, now continued as the Ontario Land Tribunal (the “Tribunal”). This Panel Member remains seized for the purposes of this request for an amendment of that prior Interim Order.
2The Appeals that were, and remain before, the Tribunal related to the Applicant’s application to the City for both an Official Plan Amendment and a Zoning By-law Amendment to allow for a mixed-use development on the site located at 169 The Donway West, a redevelopment of the Don Mills Centre shopping mall.
3The hearing of the Appeals on May 2, 2018, proceeded as a settlement hearing and the Tribunal heard, and considered the comments of two residents who had been granted Party status, and the evidence of Mr. Antonio. Volpentesta, qualified as an expert in the field of land use planning.
4By its Interim Order dated February 5, 2019 (the “Interim Order”), the Tribunal allowed the Appeals in part and amended the City of Toronto Official Plan, as appended to the Interim Order as Attachment 1 (the “Tribunal Approved OPA”) and approved the amendment to Zoning By-law No. 7625 as appended to the Interim Order as Attachment 2 (the “Tribunal Approved ZBLA”). The Tribunal withheld its Final Order pending confirmation that certain conditions set out in the Interim Order have been satisfied.
5The Final Order has not yet been requested by the Parties and before doing so, the Applicant, with the consent of the City, and the involvement of the added Parties Don Mills Residents Inc. and Richwood Developments Ltd., now returns before the Tribunal to request, by written hearing, to make certain revisions to the Interim Order determined to be necessary.
6In support of this reattendance before the Tribunal, to request the amendment, the Applicant has filed the Affidavit of Antonio Volpentesta, sworn June 10, 2022 and his additional Supplementary Affidavit sworn June 16, 2022. Mr. Volpentesta, having been previously qualified by the Tribunal in the hearing, and the Tribunal, having reviewed his updated Curriculum Vitae and executed acknowledgement, finds that he remains qualified to provide expert land use planning evidence.
7The Tribunal has reviewed both planning Affidavits of Mr. Volpentesta, all of the supporting material filed as exhibits to those Affidavits and has reviewed the draft Official Plan and Zoning By-law Amendments now submitted with revisions to the previously approved instruments. The planning opinions, in support of the requested Revised Instruments, are uncontroverted as they are presented.
8As explained in detail by Mr. Volpentesta, the requested changes and the Revised Instruments are necessary as a result of a series of subsequent events and further discussions between the Parties in relation to the inclusion of community centre space within the whole of the development of the Subject Property and related development, and the area serving the Don Mills community in the vicinity of the Don Mills Centre. These facts are not disputed.
9As a result of these proposed amendments to the settlement and original instruments since approved by the City, it has been determined that it is necessary to modify the development and the enabling planning instruments previously approved in principle. The revised Zoning By-law Amendment would include the incorporation of an approximately 1,765 square metres (“m2”) community use space on the ground floor of the proposed building at the Subject Site. The constructed community use space would be conveyed to the City following completion and an additional three storeys of residential gross floor area (“GFA”) would be permitted in the proposed building. Don Mills Residents Inc. do not object but made a request as to the name of the proposed community centre now to be incorporated.
10Mr. Volpentesta confirms that the change to the proposed development now requires that certain revisions be made to the Tribunal-approved OPA and the Tribunal-approved ZBLA. The Tribunal has been presented with a revised Official Plan Amendment (“Revised OPA”) revising the previous Tribunal Approved OPA and a revised Zoning By-law Amendment (“Revised ZBLA”) revising the instruments previously approved in principle in the Interim Order (collectively, the “Revised Instruments”). The Tribunal is assisted with redline versions of both Revised Instruments identifying the revisions to the Tribunal Approved OPA and ZBLA for the Subject Site as approved by the Tribunal in its Decision on February 5, 2019.
11Mr. Volpentesta confirms that the key changes to the Tribunal-approved OPA, which are reflected in the Revised OPA, are as follows:
(a) The maximum permitted height of any building or structure on the lands is 86.7 metres (“m”), excluding the mechanical penthouse, above the established grade of 147 m Canadian Geodetic Datum; and,
(b) The maximum permitted density on the lands is 5.15 times the lot area.
12Mr. Volpentesta explains that the key changes to the Tribunal-approved ZBLA, which are reflected in the Revised ZBLA, are as follows:
(a) The provision for a community use space (the "Community Space") of a minimum of 1,700 m2 (18,300 sq ft) GFA to be provided on the first storey of the proposed building at 169 The Donway West;
(b) An increase in height of an additional three storeys (no more than 10 m in height) to facilitate the increase in residential GFA totaling no more than 845 m2 per storey;
(c) A maximum total height of 87 m and 28 storeys, not including mechanical penthouse, with the upper floors stepping back generally in accordance with the roof plan as depicted on the settlement plans attached as Exhibit “P” to Mr. Volpentesta’s Affidavit of June 10, 2022;
(d) A maximum of 570 dwelling units shall be permitted, of which a minimum of 10% shall be three-bedroom units and 20% shall be two bedroom units;
(e) An increase to the total maximum GFA to 43,000 m2 from 39,000 m2 and the removal of all commercial GFA;
(f) The inclusion of a minimum of 410 parking spaces for the use of residents, a minimum of 40 visitor parking spaces of which seven will be reserved for the Community Space parking from 7 a.m. to 9:30 pm, and five car share spaces;
(g) One type G and one type C loading space shall be provided. The commercial parking and the type B loading space have been eliminated as a result of the elimination of the commercial uses;
(h) The provision of short-term and long-term bicycle parking updated to better reflect the applicable Toronto Green Standards and the bicycle parking requirements of Zoning By-law No. 569-2013; and,
(i) An increase in the Section 37 payment from $3 million (indexed) to $4 million (indexed) based on increased density, which $4 million (indexed) shall be dedicated to the construction of the Community Space.
13The Tribunal heard and considered Mr. Volpentesta’s prior evidence during the May, 2018 hearing that the Tribunal Approved OPA and ZBA for the Lands were consistent with the policies of the Provincial Policy Statement (“PPS”) and were in conformity with the policies of the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). At the time of the approval, the Tribunal had also considered the comments provided by the Participants raising concerns regarding shadow, wind, traffic and community services.
14The Tribunal was then satisfied and found that the Tribunal Approved OPA and the Tribunal Approved ZBLA, as they would facilitate the Development, were consistent with the PPS as it then was, and conformed to the Growth Plan as it then was. As the proposed development had been presented, and upon the evidence provided, the Tribunal concluded that the proposed Development was sensitive and appropriate in all respects relating to context, urban design, compatibility, neighbourhood sensitivity and transition, transit oriented intensification and other Official Plan policies, as it was to be placed on the Site and within the community. The Tribunal made the finding that the Development, and the Tribunal Approved Instruments, conformed to policies of City’s Official Plan, as it would be amended, and all related design policies and design guidelines, represented good planning, and was in the public interest.
15Mr. Volpentesta has now affirmed that the Revised Instruments do not materially change the evidence he provided at the settlement hearing respecting the Tribunal-approved OPA and ZBLA and that it continues to be his opinion that the Revised Instruments are consistent with the PPS, conform with the Growth Plan, and that the Revised ZBLA conforms with the City of Toronto Official Plan.
16In forming that opinion regarding the Revised Instruments, Mr. Volpentesta has also expressly considered the concerns that were raised by the Participants to the proceeding, Mr. Ari Kurk and Mr. Michael Lee, particularly related to shadowing, but also in respect of concerns raised at the hearing related to wind, traffic, and community services. The Tribunal has considered the evidence now provided by Mr. Volpentesta and specifically, the revised shadow study undertaken to assess the impact of the incremental shadowing resulting from the revised proposal, which is included in Mr. Volpentesta’s Affidavit evidence.
17The shadow studies demonstrate that the property at 7 Rainham Place will be unaffected by any incremental shadowing as a result of the proposed additional 3 storeys and that there will be some incremental shadow impact on the roof of 29 Sanderling Place at 9:18 a.m. on March/September 21, 2021 but that the roof of 29 Sanderling Place will be completely out of shadow by 10:18 a.m. Mr. Volpentesta is of the opinion that the Revised Instruments minimize, and adequately limit, the shadow impact on Neighbourhoods-designated properties, including in particular, 7 Rainham Place and 29 Sanderling Place, the residences owned by Mr. Kurk and Mr. Lee, respectively. It is also his opinion that the Revised Instruments create no new impacts in terms of wind conditions, traffic, or community facilities, in which concerns were raised, generally, by the Participants, but were not expanded upon or supported by any evidence.
18In the Tribunal’s Decision of February 5, 2019, the Tribunal fully considered and determined that the issue of shadowing that had been raised by the Participants and the incremental shadow that would occur for limited periods of time in limited area where the periphery of the shadows would pass. The Tribunal concluded that any potential shadow impact was adequately considered and adequately limited as it would affect neighbouring streets, properties and open spaces as required by the City’s Official Plan and was not of an unacceptable nature. Based upon the evidence now provided with respect to the revisions, the Tribunal finds that those previous determinations remain unchanged and that the final form of the development, as approved and permitted by the final form of the planning instruments, will minimize and adequately limit the shadow impact on Neighbourhoods-designated properties, open spaces and streets.
19The Tribunal was also satisfied, in May of 2018, that the development processes, as of that date, and which were to continue through the Site Plan Agreement, had, or would, fully and adequately address such matters of traffic, wind, and community services. Mr. Volpentesta’s planning opinion now expressed is that the Tribunal’s conclusions provided at the settlement hearing in May of 2018, remain unaltered by the proposed revisions to the previously Approved Instruments. Mr. Volpentesta has opined that the Revised Instruments will continue to adequately limit uncomfortable wind conditions on neighbouring streets, properties and open spaces, in accordance with City of Toronto Built Form Policies. It is also his opinion that the Revised Instruments will not cause any undue traffic impacts. The proposal will include appropriate traffic demand management measures to reduce vehicular trips. In addition, the commercial parking and the type B loading space have been eliminated, as a result of the elimination of the commercial uses in the development.
20It is Mr. Volpentesta’s opinion that the Revised Instruments, which incorporate a new community facility in the form of a community use space on the ground floor of the development, will serve the Don Mills Community and will improve availability and access to community services. This represents good planning and it is his view that it is appropriate to make these revisions to the Tribunal Approved Instruments as they were appended to the Tribunal’s Decision and Interim Order issued on February 5, 2019.
21The Tribunal has considered all of the evidence now provided and is satisfied that the proposed revisions to the Tribunal Approved Instruments fully accord with, and do not alter, the nature of the development, the evidence that was first before the Tribunal, and the overall findings and conclusions of the Tribunal. Although, at first glance, there are a fair number of revisions to the proposed development and the previous Tribunal Approved Instruments under the prior order, the Tribunal is of the view that when the substantial scale and complexity of the entirety of the proposed development, and the limited change to the exterior mass, scale and outward design and appearance of the proposed development is considered, the Revised Instruments should be approved.
22The Tribunal is satisfied that the revisions result in minimal or no substantial change to the totality of the evidence and the overall result of good planning in the public interest remains now, as it was when the Interim Order was first made by the Tribunal. With the Consent of the City, and with the involvement of the Don Mills Residents Inc. noted, the Tribunal is satisfied that the Revised Instruments meet the intent of the Tribunal’s Interim Order and that the Interim Order of the Tribunal issued on February 5, 2019, should be amended and revised.
23With respect to the matter of the conditions, the Tribunal has considered the revised conditions and the opinion provided by Mr. Volpentesta as to their necessity. The Revised OPA is in final form and if approved, will not require the further review of the City, as was originally anticipated. It is only the form of the Revised ZBLA that will require further review and sign off before submission to the Tribunal for final review and approval under the Final Order.
24The Tribunal finds the requested conditions to be appropriate and is aware that the request for the Final Order is most likely to be made on or before August 12, 2022.
INTERIM ORDER
25The Tribunal Orders that the Interim Order of the Tribunal issued on February 5, 2019, is hereby amended and revised by:
(a) deleting and replacing the Official Plan Amendment in Attachment 1 appended to the Interim Order with the revised Official Plan Amendment attached to this Decision and Interim Order as Attachment 1; and,
(b) deleting and replacing the Zoning By-law Amendment appended as Attachment 1 to the Interim Order with the revised Zoning By-law Amendment attached to this Decision and Interim Order as Attachment 2.
26The Tribunal further Orders that the Interim Order of the Tribunal issued on February 5, 2019, is also amended and revised by deleting paragraph [39] of the Tribunal’s Interim Order in its entirety and replacing it with the following:
39The Tribunal’s Final Order will be withheld until such time as the following pre-requisite conditions have been satisfied:
(a) The Tribunal has received, and approved, the final form and content of the Zoning By-law Amendment in Attachment 2, which is in a form to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, in consultation with the Chief Engineer and Executive Director, Engineering and Construction Services, and other appropriate divisions; and,
(b) the owner has entered into an agreement pursuant to Section 37 of the Planning Act (the "Section 37 Agreement") and any other necessary agreements, satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor, with such agreement(s) registered on title to 169 The Donway West, in a manner satisfactory to the City Solicitor to secure the community benefits and matters of legal convenience at the owner's expense, as set out in Part 4 below.
27The 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 and may be spoken to in the event some matter or matters should arise in connection with the implementation of this Interim Order.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
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
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