Sequence Condos Inc. v. Toronto (City), 2022 CanLII 63798

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 12, 2022

CASE NO(S).: OLT-21-001850

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Referred by: Sequence Condos Inc.

Subject: Site Plan

Property Address/Description: 1221 Markham Road

Municipality: City of Toronto

OLT Case No.: OLT-21-001850

OLT Lead Case No.: OLT-21-001850

OLT Case Name: Sequence Condos Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Sequence Condos Inc.

Subject: Minor Variance

Variance from By-law No.: By-law 1000-2011(OMB)

Property Address/Description: 1221 Markham Road

Municipality: City of Toronto

Municipal File No.: A0347/21SC

OLT Case No.: OLT-22-002001

OLT Lead Case No.: OLT-21-001850

Heard: June 21, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Sequence Condos Inc.

John Alati and Jamie Cole

City of Toronto

Roman Ivanov

MEMORANDUM OF DECISION DELIVERED BY S. BRAUN ON JUNE 21, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a settlement hearing in relation to appeals by Sequence Condos Inc. (“Appellant”) against the failure of the City of Toronto (“City”) to make a decision within the prescribed timeframe on a site plan control area application (“SPA”) pursuant to s. 114(15) of the City of Toronto Act¹ and the refusal of the City’s Committee of Adjustment (“Committee”) to approve associated minor variances pursuant to s. 45(12) of the Planning Act² (“Act”) in relation to the property at 1221 Markham Road (“subject site”).

2At the outset of the hearing, the Parties jointly requested the Tribunal adjourn the SPA matter until August 15, 2022, so as to provide the City with time to complete its review of the resubmission and issue the Notice of Approval Conditions (NOAC). They further requested the Tribunal approve the appeal of the minor variance application in part, subject to the condition that the owner enter into an amending s. 37 agreement.

3The Tribunal heard evidence from Peter Smith, a registered professional planner, who was qualified to provide land use planning opinion evidence. Mr. Smith provided a sworn Affidavit (Exhibit 1) and delivered a detailed contextual and land use planning rationale in support of the settlement.

SITE CONTEXT AND DEVELOPMENT PROPOSAL

4The subject site is rectangular in shape and approximately 1.89 hectares, located on the east side of Markham Road roughly 150 metres north of Ellesmere Road. It is presently occupied by a single-storey commercial plaza containing a variety of restaurants, medical offices and shops, as well as a large surface parking area. The surrounding area includes existing 15-storey and proposed 26 and 29 storey buildings to the north; two existing 16-storey buildings to the immediate south, as well as proposed buildings up to 36 storeys further south.

5In 2011, through By-law 1000-2011 (OMB) (“ZBL”), the Ontario Municipal Board approved the redevelopment of the subject site with three tall buildings ranging in height from 20-26 storeys, collectively containing 733 dwelling units. Since that time, revisions have been made to the development proposal in response to: comments from the City, the adoption of City-wide Tall Building Design Guidelines in 2013; and the evolving height context in the surrounding area.

6The SPA, filed with the City in July 2020, contemplated the redevelopment of the subject site with three residential towers at heights of 20, 26 and 30 storeys, containing a total of 866 dwelling units. The proposal included the conveyance of a public road to the City, consistent with the provisions of the ZBL. On September 30, 2021, the Appellant filed an associated application for a series of minor variances (28 in total), the purpose of which was twofold:

i. to implement a number of design refinements resulting from comments received from the City and other agency staff in relation to the SPA under review; and

ii. to resolve drafting errors in the ZBL.

7Following the refusal of the minor variance application and the subsequent filing of the present appeals, the SPA and the list of requested variances were revised and resubmitted. That set of revisions represents the current proposal, which is the subject of the settlement agreement between the Parties and for which the Tribunal’s approval is sought.

8The current proposal contemplates the redevelopment of the subject site with three towers of 21, 27 and 30 storeys. Building A is a mixed-use building consisting of ground floor retail with dwelling units above and includes a 6-storey podium element with a tower rising above to 30 storeys. Buildings B and C, at 21 and 27 storeys respectively, are residential towers proposed to be joined by a 4-storey podium. The development proposal, as revised, now contemplates a total of 879 dwelling units (650 one bedroom; 161 two-bedroom; and 68 three-bedroom).

LEGISLATIVE FRAMEWORK

9The key issue for the purposes of this hearing is whether the series of minor variances, as requested, meet the four tests set out in s. 45(1) of the Act. The Tribunal must be satisfied that the variances:

a) maintain the general intent and purpose of the official plan (“OP”);

b) maintain the general intent and purpose of the ZBL;

c) are desirable for the appropriate development or use of the land, building or structure; and

d) are minor in nature.

10The variances must also be consistent with the Provincial Policy Statement (“PPS”) and conform to/not conflict with any applicable Provincial plan which, in this instance, is A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019 (“GP”). Finally, the Tribunal must have regard to matters of Provincial interest and to the decision made by the approval authority, as well as the information and material considered by it in the course of making its decision.

11In addition to the foregoing, as the Tribunal has been presented with two variances which have been amended since the application was considered by the Committee, it must be satisfied that such amendments are minor for the purposes of s. 45(18.1.1) of the Act, such that no further notice of this hearing is required.

12The list of 28 requested variances to the ZBL are appended to the Affidavit of Peter Smith (Exhibit 1) at Tab E and have been reproduced and attached as Schedule 1 to this Decision.

PLANNING EVIDENCE

13Mr. Smith provided a brief overview of the evolution of the proposal, noting that various revisions have been made to the development initially approved through the OMB decision in 2011 in an effort to appropriately respond to current Tall Building Design Guidelines and urban design objectives. He drew the Tribunal’s attention to some of the most notable changes and explained the reasoning behind each, as follows:

a) An increase in the height of Building A from 25 to 30 storeys

i. as originally approved in 2011, this was to be the second tallest of the three buildings, but, given its proposed location fronting onto a Major Road (Markham Road) and the evolving height context in the area, which now includes approvals for buildings of up to 34-storeys, it was felt that Building A should be the tallest of the three buildings on the subject site.

ii. focusing the majority of the total additional height contemplated by the revised development at the Building A location adequately limits impacts of additional tower height, such as shadowing

b) Introduction of a four-storey podium to link Buildings B and C

i. while the development initially approved in 2011 did not contemplate a linkage between these two buildings, Tall Building Design Guidelines have since been adopted by the City, directing that tall buildings should consist of three parts: a base, a tower and a top, carefully integrated into a single whole, the base of which should be designed to respect and reinforce good street proportion and pedestrian scale.

ii. the newly added four-storey podium linkage between Buildings B and C improves engagement with the street, provides an enhanced pedestrian experience and better aligns with OP objectives, urban design principles and Tall Building Design Guidelines

c) Increase in gross floor area (“GFA”) from 62,000 square metres approved in 2011 to the currently proposed 74,750 square metres and an increase in the number of dwelling units from 733 to 879

i. the variances to the gross floor area, as well as the number of dwelling units, are a by-product of the increases in height and the introduction of the four-storey podium connecting Buildings B and C

d) A reduction in the number of parking spaces from 879 to 747 (just less than one space per unit)

i. this reduction responds to current parking provisions in By-law 56-2013 and is supported by a Transportation Impact Study, which was ultimately accepted by the City’s Engineering Department and Construction Services Department.

Minor Variances

14As previously noted, the Appellant seeks a total of 28 minor variances, appended to this Decision as Schedule 1. For the purposes of presenting his opinions with respect to how the variances meet the four tests, Mr. Smith organized the requested variances into 8 categories, as follows:

1. Height (Variances 1, 2, 3 and 4), Gross Floor Area (Variances 8, 9, 10 and 11) and Dwelling Units (Variance 12)

2. Main Wall Separation (Variance 5) and Lot Coverage (Variance 13)

3. Amenity Space (Variance 6)

4. Lot Area (Variance 7)

5. Floorplate Size (Variance 14)

6. Setbacks (Variances 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26)

7. Parking (Variance 27)

8. Phasing of Public Road Conveyance (Variance 28)

15Also, as previously noted, two of the variances have been amended since the Committee considered the application. These relate to:

a) a reduction in the amount of relief sought with respect to additional height for the mechanical penthouse (Variance 4); and

b) a slight increase in the relief requested with respect to the amount of indoor amenity space to be provided (Variance 6)

16With respect to Variance 4, Mr. Smith explained City staff requested a slight reduction in the additional height requested for vertical projections, such as mechanical penthouses, from the originally requested 9.0 metres to 8.0 metres and, as such, this variance was revised to reflect same. Similarly, with respect to Variance 6, discussions with City staff determined that the amenity area would be calculated for the entirety of the subject site rather than for each individual block. Accordingly, the requested variance was revised to reflect the rate applicable to the entire site. Mr. Smith further explained that the combined indoor and outdoor amenity space exceeds the requirements set out in the ZBL and, from a practical perspective, the outdoor amenity areas will be collectively used by residents of all three buildings.

17In Mr. Smith’s opinion, the foregoing amendments are minor and, as such, require no further notice in accordance with s. 45 (18.1.1) of the Act.

18With regard to the number of variances sought, the in-force Zoning By-law applicable to the subject site is the former City of Scarborough Woburn Community Zoning By-law No. 9510, as amended by site-specific Zoning By-law 1000-2011 (OMB) (“ZBL”). The ZBL does not specify heights, building separation and setbacks through the use of a building envelope diagram but, rather, through a series of individual regulations, a complexity giving rise to the number of variances required to give effect to the development proposal. Despite the numerous variances sought, it was Mr. Smith’s opinion that the proposal presently before the Tribunal is generally in keeping with the approved built form and site organization in the ZBL, including the provision of a new public road and landscaped open space.

19While not exhaustively addressed in this decision, Mr. Smith provided a detailed review of the 28 requested variances and explained how the four tests set out in s. 45(1) of the Act are satisfied. For the sake of brevity, what follows is a summary of what the Tribunal considered to be the more noteworthy portions of Mr. Smith’s evidence in this regard.

Do the variances maintain the general intent and purpose of the OP?

20The subject site is designated within the OP as a Mixed Use Area, permitting a broad range of uses in single use or mixed-use buildings as well as parks and open spaces and utilities. It is also located within the Markham-Ellesmere Revitalization Area and is subject to Site and Area Specific Policy No. 322 (“SASP 322), which envisions intensification and additional housing as part of the area’s revitalization strategy.

21In Mr. Smith’s view, the proposed development meets the criteria for Mixed Use Areas set out in OP Policy 4.5(2) including, but not limited to: the creation of high quality commercial, residential, institutional and open spaces uses, reducing automobile dependency and meeting the needs of the local community.

22With specific reference to the requested variances for height, Mr. Smith explained that neither the Mixed Use Areas designation nor SASP 322 specify a height limit for the subject site and, as such, the appropriate height for development thereon is informed by the surrounding built form context, as well as applicable growth management, built form and land use policies. In his view, the proposed height increase for Building A from 25 to 30 storeys is in keeping with changes to the built form context in the area since 2011, which now includes approved and proposed tall buildings of 34 and 36 storeys. With respect to the requested height variances for Buildings B and C (from 20 to 21 and 26 to 27 storeys, respectively), he noted these are slight increases which result from the counting of the proposed mezzanine level in the number of storeys. He also pointed out that the proposal is consistent with the high-rise vision for the subject site, as articulated in the City’s Council-adopted Conceptual Master Plan.

23Mr. Smith expressed the view that the proposal supports OP Mixed Use Area objectives, which speak to locating and massing development to: provide appropriate transition between areas of different intensity; adequately limit shadow impacts upon properties in adjacent Neighbourhoods; frame street edges and provide a comfortable pedestrian environment; and take advantage of nearby transit.

24He explained that the tallest building (Building A – 30 storeys) has been deliberately located adjacent to Markham Road with a pedestrian-scaled 6 storey podium providing active retail spaces spanning the entire frontage on Markham Road, which is preferable from an urban design perspective. He also drew the Tribunal’s attention to the conclusions of a shadow study, which demonstrate that the tower elements of the proposal are similar to as-of-right shadow impacts. On this basis, he opined shadow impacts will be adequately limited in accordance with OP policies. Finally, he noted that the 2041 Regional Transportation Plan (“RTP”) proposes bus rapid transit along Ellesmere Road and that this portion of Ellesmere Road has been identified as a Transit Corridor.

25Mr. Smith explained that Mixed Use Areas are anticipated to absorb much of the new housing in the City and this particular Mixed Use Area is located within the Markham-Ellesmere area, where revitalization and renewal have been encouraged by the City for over a decade. For all of the foregoing reasons, he opined that the variances, as requested, maintain the general intent and purpose of the OP and specifically, SASP 322 which, in his view, provides a policy basis for the redevelopment of the subject site as proposed.

Are the variances desirable for the appropriate development of the land?

26Mr. Smith explained that, as the proposal will support numerous policies of the OP and SASP (including providing dwelling units and a mix of uses while taking advantage of transit services in an area which is well served by municipal infrastructure), the series of variances now before the Tribunal which will permit the proposed development are desirable and appropriate.

Do the variances maintain the general intent and purpose of the ZBL?

27Despite the number of variances required to give effect to the current proposal, Mr. Smith opined that this proposal is fundamentally similar to the development permitted by the ZBL and, as such, the general intent and purpose of the ZBL is maintained.

28The ZBL permits a mixed-use development on the site consisting of three tall buildings and specifies a total of 37 individual performance standards for the subject site. Mr. Smith explained that it is this level of specificity within the ZBL that results in the need for multiple variances to accommodate any minor deviation. For example, since the four-storey podium which is now proposed to link Buildings B and C was not contemplated in the development originally approved in 2011, a number of variances are now required to accommodate this change. In Mr. Smith’s view, the many variances proposed are reflective of minor deviations with the result that the overall development concept approved in 2011 is generally maintained.

29As discussed above in paragraph 6, a secondary reason for the minor variance application was to correct drafting errors in the ZBL. Mr. Smith explained that the specified dimensions in relation to the future public road as set out in the ZBL incorrectly included the width of the right-of-way of that future public road. Variances are now sought to exclude that future public road from the eastern and southern lot line setbacks.

Are the variances minor in nature?

30With respect to the evaluation of the requested variances against this branch of the four-part test, Mr. Smith noted that the assessment to be undertaken is not solely numerical in nature, but predominantly an assessment with respect to the resulting impact of the variances, if approved. In his view, from an impact perspective, the only noticeable built form change is the addition of 5 storeys to Building A. He noted that a variety of studies including, but not limited to: functional servicing, traffic and shadowing concluded that the impacts of both of these changes and the development, as a whole, are minor and acceptable.

Overall Planning Opinion

31Ultimately, in Mr. Smith’s view, the requested variances meet the four tests in s. 45(1) of the Act, when considered individually as well as cumulatively. He opined the proposed development is representative of good planning, resulting in the revitalization and intensification of the subject site in accordance with the vision for the area articulated in SASP 322, with the proposed building heights and other changes reflecting an improved urban design (as compared to the in-force zoning), which responds appropriately to the area’s current height context and City-wide Tall Building Design Guidelines.

32Given that the proposal will result in an increase in the mix and supply of housing in a transit-supportive location that has been identified for redevelopment, Mr. Smith opined the SPA, the associated minor variances and the development they will ultimately permit, have regard to matters of Provincial interest; are consistent with the PPS; and conform to the GP and specifically policies which encourage residential intensification, the creation of complete communities and efficient/optimal use of land and infrastructure.

33Lastly, Mr. Smith recommended the Tribunal include, as a condition of approval, a requirement that the owner to enter into an amended s. 37 agreement which, inter alia, increases the total cash contribution to be provided to the City (from the original $440,000 to $1,420,000) and specifies details with respect to the design, construction and conveyance of the public road.

ANALYSIS AND DISPOSITION

34The Tribunal wholly accepts the uncontested evidence and opinions of Mr. Smith and finds the proposed development to be representative of good planning. The Tribunal finds the requested variances, both individually and cumulatively, meet the four tests set out in s. 45(1) of the Act, are consistent with the PPS and conform to the GP. With respect to the two amended variances, the Tribunal finds these to be minor and accordingly, no further notice is required pursuant to s. 45 (18.1.1) of the Act.

35The requested variances allow for changes to the design and height of the buildings originally approved in 2011. These changes appropriately respond to both the built form transformation which has been occurring in the surrounding area (for example, the increase in approved and proposed heights of between 34 and 36 storeys), as well as updated guidelines with respect to urban design and tall building development.

36The Tribunal agrees with Mr. Smith’s opinion that, despite the seemingly large number of variances requested, the revised proposal is fundamentally similar to that which is permitted by the ZBL. The Tribunal further agrees that the proposal provides for the appropriate development of a property located in an area which has been planned for revitalization and intensification for more than a decade.

37Finally, the Tribunal accepts the evidence of Mr. Smith with respect to the appropriateness of requiring the owner to enter into an amended s. 37 agreement, which will, accordingly, be included as a Condition of Approval.

38With respect to the Tribunal having regard to the decision of the approval authority, it is noted that notwithstanding the previous refusal of the minor variance application, the City appeared at this hearing in support of the settlement and requested the Tribunal conditionally approve the minor variances before it.

ORDER

39The Tribunal, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45 (18.1.1) of the Planning Act.

40The appeal of the minor variance application is allowed in part. The list of minor variances contained within Exhibit E to the Affidavit of Peter Smith, sworn June 20, 2022 (reproduced and attached hereto as Schedule 1) are authorized, subject to the following condition:

i. that the owner enter into an amending s. 37 agreement which, among other things, amends the total cash contribution to be provided and contains schedules setting out the details of the public road construction and its ultimate conveyance.

41The Tribunal further Orders that the appeal of the non-decision on the site plan control application is adjourned, on consent, until August 15, 2022. The Parties shall advise the Case Co-ordinator in writing should they require an extension of this deadline.

“S. Braun”

S. braun

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 “1”

Exhibit E to the Affidavit of Peter Smith

Footnotes

1. 12006, S.O. 2006 c. 11, Sched. A.
2. 2R.S.O. 1990, c. P. 13, as amended.