Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 27, 2022 CASE NO(S).: OLT-21-001156

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Yonge Sixteen Inc. Subject: Request to amend the Official Plan - Failure of the City of Richmond Hill to adopt the requested amendment Existing Designation: Key Development Area (KDA) Proposed Designation: To maintain the Key Development Area (KDA) designation but to allow for certain policy amendments to permit the development of two mixed-use residential/commercial buildings at 43-storeys and 38-storeys in height on top of a 6-storey podium, with a total Gross Floor Area of 66,550 square metres (705,574 square feet), at a Floor Space Index of 8.77 and 962 residential units Purpose: To permit the development of two mixed-use residential/commercial buildings at 43-storeys and 38-storeys in height on top of a 6-storey podium, with a total Gross Floor Area of 66,550 square metres (705,574 square feet), at a Floor Space Index of 8.77 and 962 residential units Property Address/Description: 9251 Yonge Street Municipality: City of Richmond Hill Approval Authority File No.: D01-19002 OLT Case No.: OLT-21-001156 OLT Lead Case No.: OLT-21-001156 OLT Case Name: Yonge Sixteen Inc. v. Richmond Hill (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Yonge Sixteen Inc. Subject: Application to amend Zoning By-law No. 276-96, as amended by site-specific Zoning By-law No. 49-12 - Neglect of the City of Richmond Hill to make a decision Existing Zoning: Key Development Area Zone under Zoning By-law No. 276-96, as amended by site-specific Zoning By-law No. 49-12 Proposed Zoning: Site Specific (to be determined) Purpose: To permit the development of two mixed-use residential/commercial buildings at 43-storeys and 38-storeys in height on top of a 6-storey podium, with a total Gross Floor Area of 66,550 square metres (705,574 square feet), at a Floor Space Index of 8.77 and 962 residential units Property Address/Description: 9251 Yonge Street Municipality: City of Richmond Hill Municipality File No.: D02-19012 OLT Case No.: OLT-21-001157 OLT Lead Case No.: OLT-21-001156

Heard: May 3, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Yonge Sixteen Inc.	Daniel Artenosi
City of Richmond Hill	Carlton Thorne

MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON MAY 3, 2022 AND ORDER OF THE TRIBUNAL

1This second Case Management Conference (“CMC”) was held in preparation for a hearing on the merits of Yonge Sixteen Inc.’s appeals to the absence of decisions by the City of Richmond Hill on applications for Official Plan Amendment and Zoning By-law Amendment for a mixed-use development at 9251 Yonge Street, Richmond Hill.

2The Parties were unable to reach a settlement in their discussions since the first CMC four months ago, but have agreed on a Procedural Order (“PO”) with an Issues List, with appropriate specificity to relevant policies. The Parties requested the approval of the PO for the four-day hearing scheduled to being on October 18, 2022. The Parties also acknowledged their continued interest in resolving issues, where possible, as they prepare for the hearing.

3The Tribunal approved the PO provided by the Parties, but following the CMC, asked the Parties to revise certain submission dates. The revised PO submitted on consent of the Parties is approved as attached to this Decision.

4The Tribunal reminded Participants to note the date in the PO by which Participant Statements must be circulated (PO paragraph 15 / PO Attachment 4).

5As noted in the Tribunal’s Decision from the first CMC, the 4-day hearing commences on Tuesday, October 18, 2022 at 10 a.m. by video hearing (“VH”). No further Notice will be given.

6Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/687587165

Access Code: 687-587-165

7Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

10The Tribunal Orders the rulings and directions contained in this Decision.

11This Member is not seized but may be contacted through the Case Coordinator for case management purposes.

"S. Tousaw"

S. TOUSAW MEMBER

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

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

OLT-21-001156 – Appendix 1

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Yonge Sixteen Inc. Subject: Request to amend the Official Plan - Failure of the City of Richmond Hill to adopt the requested amendment Existing Designation: Key Development Area (KDA) Proposed Designation: To maintain the Key Development Area (KDA) designation but to allow for certain policy amendments to permit the development of two mixed-use residential/commercial buildings at 43-storeys and 38-storeys in height on top of a 6-storey podium, with a total Gross Floor Area of 66,550 square metres (705,574 square feet), at a Floor Space Index of 8.77 and 962 residential units Purpose: To permit the development of two mixed-use residential/commercial buildings at 43-storeys and 38-storeys in height on top of a 6-storey podium, with a total Gross Floor Area of 66,550 square metres (705,574 square feet), at a Floor Space Index of 8.77 and 962 residential units Property Address/Description: 9251 Yonge Street Municipality: City of Richmond Hill Approval Authority File No.: D01-19002 OLT Case No.: OLT-21-001156 OLT Lead Case No.: OLT-21-001156 OLT Case Name: Yonge Sixteen Inc. v. Richmond Hill (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Yonge Sixteen Inc. Subject: Application to amend Zoning By-law No. 276-96, as amended by site-specific Zoning By-law No. 49-12 - Neglect of the City of Richmond Hill to make a decision Existing Zoning: Key Development Area Zone under Zoning By-law No. 276-96, as amended by site-specific Zoning By-law No. 49-12 Proposed Zoning: Site Specific (to be determined) Purpose: To permit the development of two mixed-use residential/commercial buildings at 43-storeys and 38-storeys in height on top of a 6-storey podium, with a total Gross Floor Area of 66,550 square metres (705,574 square feet), at a Floor Space Index of 8.77 and 962 residential units Property Address/Description: 9251 Yonge Street Municipality: City of Richmond Hill Municipality File No.: D02-19012 OLT Case No.: OLT-21-001157 OLT Lead Case No.: OLT-21-001156

Procedural Order

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on October 18, 2022 at 10 a.m. at the following link:

GoTo Meeting: https://global.gotomeeting.com/join/687587165

Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373

Access Code: 687-587-165

3. The parties’ initial estimation for the length of the hearing is 4 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. If the applicant intends to seek approval of a revised proposal at the hearing, the Applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, to the other Parties by no later than July 13, 2022. The Applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before June 15, 2022 and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before June 29, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT Case Coordinator on or before August 3, 2022.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 14 below.

14. On or before August 30, 2022, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 23 below.

15. On or before August 30, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before September 23, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT Case Coordinator a written response to any written evidence on or before September 13, 2022 and in accordance with paragraph 23 below

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before September 23, 2022.

19. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT Case Coordinator, on or before October 12, 2022.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

21. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal on or before October 11, 2022 that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 6, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES

1. Yonge Sixteen Inc. (Applicant/Appellant) Counsel: Overland LLP 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Daniel Artenosi Email: dartenosi@overlandllp.ca Tel: (416) 730-0320 Natalie Ast Email: nast@overlandllp.ca Tel: (416) 730-0387

2. City of Richmond Hill Counsel: Legal Services Department 225 East Beaver Creek, 8th Floor Richmond Hill, ON L4B 3P4 Carlton Thorne Assistant City Solicitor Email: carlton.thorne@richmondhill.ca Tel: (905) 747-6479

PARTICIPANTS

1. 9218 Yonge Street Inc. / Taheri Development Inc. Counsel/Representative: Overland LLP 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Christopher Tanzola Email: ctanzola@overlandllp.ca Tel: (416) 730-0645 Michael Cara Email: mcara@overlandllp.ca Tel: (416) 730-1529

2. Mayvern Area Residents Association Counsel/Representative: Pat Pollock Email: mhpollock@hotmail.com

3. Galina Tikhonovsky Email: lina.novsky@gmail.com

4. May Liu Email: mayliu88@hotmail.com

5. Valentina Krimsky Email: tina07k@yahoo.ca

6. Wen Zhi Email: wen2084@gmail.com

ATTACHMENT 2

ISSUES LIST

The identification of an issue on this Issues List does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant will be a matter of evidence and argument at the hearing.

Issues List of the City of Richmond Hill

1. Does the development proposal consisting of Official Plan and Zoning By-law Amendments for the subject lands (collectively the “development proposal”) have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(h), 2(m), 2(p) and 2(r) therein?

2. Is the development proposal consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular, but not limited to, the following policy sections:

• Policy Sections 1.1.3.2, 1.1.3.3 and 1.1.3.4 (Settlement Areas);
• Policy Section 1.4.3 (Housing); and,
• Policy Section 4.6 (Implementation and Interpretation).

3. Is the development proposal in conformity with the A Plan to Grow: Growth Plan for the Greater Golden Horseshoe (2020) (the “Growth Plan”), in particular, but not limited to, the following policy sections:

• Policy Section 1.2.1 (Guiding Principles);
• Policy Section 2.2.2(3) (Delineated Built-up Areas);
• Policy 2.2.4(2) and 2.2.4(9) (Transit Corridors and Station Areas); and
• Policy Section 5.2.5(8) (Implementation and Interpretation).

4. Is the development proposal in conformity with the relevant policies in the Regional Official Plan (the “ROP”), in particular, but not limited to, the following policy sections:

• Policy Section 5.2.10 (Sustainable Cities, Sustainable Communities);
• Policy Sections 5.3.3, 5.3.6 and 5.3.9 (Intensification);
• Policy Sections 5.4.6 and 5.4.8 (Regional Centres and Corridors);
• Policy Sections 5.4.32, 5.4.33 and 5.4.34 (Regional Corridors)?

5. Does the development proposal maintain the intent and principles of, and does it conform with, the City of Richmond Hill’s Official Plan (the “Plan”), in particular, but not limited to, the following policy sections:

• Policy Section 3.1.5.2 and 3.1.5.6 (Housing);
• Policy Sections 3.4.1.39 and 3.4.1.59 (Urban Design);
• Policy Section 3.5.4 (Transit Oriented Development);
• Policy Sections 4.4.1.6, 4.4.1.7, 4.4.1.8 and 4.4.2 (Key Development Areas);
• Policy Section 6.5 (Exceptions)
• any other policies related to the above?

6. Does the development proposal have appropriate regard for the draft Yonge and Carrville/16th Avenue Key Development Area Secondary Plan as endorsed by Council in particular, but not limited to, the following policy sections:

• Policy Section 11.2.2 (Height);
• Policy Section 11.2.3 (Density);
• Policy Section 11.2.5 (Built Form);
• Policy Section 11.2.7 (Housing);
• Policy Section 11.4.2 (Transit);
• Policy Section 11.4.3 (Transportation Demand Management); and
• Policy Section 11.4.8 (Parking)?

7. Does the development proposal have appropriate regard for the City-wide Urban Design Guidelines and the Report including, but not limited to, the following policy section in particular:

• Policy Section 6.6 (Tall Buildings)?

8. Does the development proposal represent an overdevelopment of the site?

9. Are the proposed density, building height, built form and overall site design for the development proposal appropriate with respect to the established urban structure framework and planning function of other lands in the vicinity?

10. Does the development proposal provide an appropriate transition to adjacent and surrounding areas?

11. Does the development proposal fit within the character of adjacent and surrounding lands?

12. Is the proposed Zoning By-law Amendment appropriate, including with respect to whether it sufficiently regulates matters of built form including, height, density, massing, scale, setbacks and parking having regard for the subject lands, adjacent property and the character of the surrounding lands?

13. Does the development proposal provide appropriate parking?

14. Is the proposed development premature pending completion of improvements to transit services, including the extension of Metrolinx subway facilities and enhancements to the Viva Bus Rapid Transit system?

15. In the event that the Tribunal approves the proposed Official Plan and Zoning By-law Amendments, in principle, should: (a) the final order respecting the Official Plan Amendment application be withheld until such time as the City advises the Tribunal that the Official Plan Amendment has been finalized to the satisfaction of the Commissioner of Planning and Infrastructure; and, (b) the final order respecting the Zoning By-law Amendment application be withheld until such time as the City advises the Tribunal that: (i) the draft Zoning By-law Amendment has been finalized to the satisfaction of the City’s Commissioner of Planning and Infrastructure; and, (ii) the related Site Plan application for the development has been finalized to the satisfaction of the Commissioner of Planning and Infrastructure.

16. Does the development proposal represent good land use planning and is it in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Yonge Sixteen Inc.
2. City of Richmond Hill.
3. Yonge Sixteen Inc. (in reply)

ATTACHMENT 4

LIST OF EXCHANGE DATES

1. List of Witnesses June 15, 2022
2. Meeting of Experts June 29, 2022
3. Revisions to Proposal July 13, 2022
4. Agreed Statement of Facts August 3, 2022
5. Witness Statements August 30, 2022
6. Participant Statements August 30, 2022
7. Reply to Witness Statements September 13, 2022
8. Joint Document Book September 23, 2022
9. Visual Evidence September 29, 2022
10. Hearing Plan October 6, 2022
11. Cross Examination Documents October 12, 2022

Meaning of Terms used in the Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.