Bay-Elizabeth Construction Ltd. and Smye Homes Ltd. v. Toronto (City), 2022 CanLII 69413

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 26, 2022

CASE NO(S).: OLT-21-001814 (Formerly PL190312)

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

Applicant/Appellant: Bay-Elizabeth Construction Ltd. and Smye Homes Ltd.

Subject: Minor Variance

Description: to permit a 19 and 22-storey residential building with a seven-storey podium

Reference Number: A0454/18TEY

Property Address: 70 and 100 Edward St and 636 Bay St.

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-21-001814

Legacy Case No: PL190312

OLT Lead Case No: OLT-21-001814

Legacy Lead Case No: PL190312

OLT Case Name: Bay-Elizabeth / Smye Homes v. Toronto (City)

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

Subject: Site Plan

Description: to permit a 19 and 22-storey residential building with a seven-storey podium

Reference Number: A0454/18TEY

Property Address: 70 and 100 Edward St and 636 Bay St

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-21-001837

Legacy Case No: MM160028

OLT Lead Case No: OLT-21-001814

Legacy Lead Case No: PL190312

OLT Case Name: Bay-Elizabeth Construction Ltd. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 69(3) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Protest of fees

Reference Number: 16 136299 STE 27 SA

Property Address: 70 and 100 Edward St and 636 Bay St

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-21-001862

Legacy Case No: MM170095

OLT Lead Case No: OLT-21-001814

Legacy Lead Case No: PL190312

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1 Yorkville Inc.

Appellant: 1095909 Ontario Limited (Wynn Group of Companies)

Appellant: 11 Yorkville Partners Inc.

Appellant: 110 Adelaide Street East Inc.; and others

Subject: Proposed Official Plan Amendment No. OPA 352

Municipality: City of Toronto

OLT Case No.: OLT-22-002456 Legacy Case No.: PL161316

OLT File No.: OLT-22-002456

Legacy File No.: PL161316

OMB Case Name: ADI Development Group Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1 Yorkville Inc.

Appellant: 1095909 Ontario Limited (Wynn Group of Companies)

Appellant: 11 Yorkville Partners Inc.

Appellant: 110 Adelaide Street East Inc.; and others

Subject: By-law No. BL 1106-2016

Municipality: City of Toronto

OLT Case No.: OLT-22-002456 Legacy Case No.: PL161316

OLT File No: OLT-22-002458

Legacy File No.: PL161317

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1 Yorkville Inc.

Appellant: 11 Yorkville Partners Inc.

Appellant: 110 Adelaide Street East Inc.

Appellant: 1147380 Ontario Limited; and others

Subject: By-law No. BL 1107-2016

Municipality: City of Toronto

OLT Case No.: OLT-22-002456 Legacy Case No.: PL161316

OLT File No.: OLT-22-002460

Legacy File No.: PL161318

Heard: January 14, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.	John Alati Jamie Cole
City of Toronto	Gabe Szobel Cameron McKeich
Hospital for Sick Children	Catherine Lyons

MEMORANDUM OF ORAL DECISION DELIVERED STEVEN COOKE ON JANUARY 14, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Bay- Elizabeth Construction Ltd. and Smye Homes Ltd. (“Applicants”) have made appeals under s. 45 (12) for a Minor Variance (“MV”) denial by the City of Toronto (“City”) and s. 69 (3) for the payment under protest, of the Planning Act, R.S.O. 1990, c. P.13, as amended. The Applicants have also made an appeal of a site plan application under s. 114 (15) of the City of Toronto Act, 200, s.o.2006, c.11, Sched A, as amended.

2The matter before the Tribunal was a settlement hearing for the purpose of addressing the appeals of the MV. While the appeals for the site plan where not heard during these proceedings, the parties have requested that this Member be seized of the hearing on the merits of the site plan appeals for consistency purposes. As for the appeals under s. 69 (3) the Applicants have indicated that upon approval of the MV they will be withdrawing the appeal.

3The Applicants propose to construct two mixed use buildings with a 99.75 square metre (“sq m”) Privately Own and Publicly Accessible Open Space (“POPS”). The Building A would include a 19-storey residential tower with 189 dwelling units and Building B would include a 22-storey residential tower with 325 dwelling units for a combined total of 514 dwelling units. The combined vehicle parking would include 98 spaces and 528 bicycle parking spaces.

PLANNING EVIDENCE

4With the consent of all parties, Michael Goldberg was qualified by the Tribunal to give expert opinion land-use planning evidence. Mr. Goldberg was the only expert that was called to provide the Tribunal with evidence in this matter and provided an executed Acknowledgement of Expert’s Duty.

5Mr. Goldberg informed the Tribunal that the parties have come to an agreed settlement regarding the MV. It is the request of the Applicant that the Tribunal withhold its final Order until the Site Plan is approved, or the parties agree that it can be issued.

6In the determination of this Appeal, it must be noted that pursuant to s. 45 of the Planning Act (“Act”), this is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act have been met is on the Applicant.

7The Tribunal must evaluate the minor variance in the context of the following four tests under s. 45(1) of the Act:

a. Do they maintain the general intent and purpose of the Zoning By-law (“ZBL”)?

b. Do they maintain the general intent and purpose of the Official Plan (“OP”)?

c. Are they minor?

d. Are they desirable for the appropriate development or use of the land?

8In addition, s. 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

Requested Minor Variances

9The Applicant is requesting sixteen MVs for the two proposed buildings. While both buildings require relief from By-law No. 438-86, only Building B requires relief from By-law No. 569-2013.

10Taken from the Affidavit of Mr. Goldberg the MV’s are:

1. 40.10.40.40.(1) By-law 569-2013 (Building B)

(A) The total permitted maximum floor space index for all uses on the lot is 7.8 times the lot area: 20,099.82 square metres. The proposed total maximum floor space index for all uses is 9.08 times the lot area: 23,405.1 square metres.

(C) The permitted maximum floor space index for residential uses on the lot is 7.8 times the lot area: 20,099.82 square metres. The proposed maximum floor space index for residential uses is 8.85 times the lot area: 22,800.1 square metres.

2. 600.10.10.(1) Development Standard Set 1- By-law 569-2013 (Building B)

(A)(ii) The setback for a tower must be 12.5 metres from the centre line of an abutting lane. The proposed tower is 10.0 metres to the centre line of Barnaby Place.

(A)(iii) The setback for a tower must be 12.5 metres from a lot line having no abutting street or lane. The proposed tower is 10.0 metres to the north property towards Elm Street.

3. 200.5.10.1.(1) By-law 569-2013 (Building B)

The required minimum number of parking spaces for the dwelling units is 196 spaces.

The required minimum number of parking spaces for visitors is 32 spaces. The proposal will have 62 spaces of which 33 spaces will be visitor spaces.

4. 200.15.10. By-law 569-2013 (Building B)

(C) The required minimum number of accessible parking spaces is 7. The proposed number of accessible parking spaces is 4.

5. 40.10.40.10.(1) Development Standard Set 1 – By-law 569-2013 (Building B)

(A) The maximum height of a building or structure on a lot subject to Development Standard Set 1 (SS1) is 61.0 metres. The proposed height of the building is 72.25 metres.

6. 40.10.40.50.(1) By-law 569-2013 (Building B)

A building with 20 or more dwelling units must provide amenity space at a minimum rate of 4.0 square metres for each dwelling unit: 1,304 square metres. The proposed total amenity space provided is 1,133 square metres, comprised of 682 square metres of indoor amenity space and 451 square metres of outdoor amenity space.

7. 40.10.40.70.(1) Development Standard Set 1 – By-law 569-2013 (Building B)

At least 75 percent of the main wall of the building facing a front lot line must be located at or between the front lot line and a maximum of 3.0 metres from the front lot line. The main walls of the building will be 3.2 metres from Edward Street and 4.5 metres from Bay Street.

8. 4(2)(a) and 12(2) 260(II)&(III) and 12(1) 368(vi) – By-law 438-86 (Both Buildings)

The by-law limits a building height to 61.0 metres and must not penetrate a 60 degree angular plane at the permitted height. The proposed building has a height of 72.25 metres and penetrates the 60 degree angular plane. [70 Edward St] (Building B)

The by-law limits a building height to 46.0 metres and must not penetrate a 60 degree angular plane at the permitted height. The proposed building has a height of 63.55 metres and penetrates the 60 degree angular plane. [100 Edward St] (Building A)

9. 4(12) By-law 438-86 (Building B)

The by-law requires 652 square metres of indoor residential amenity space and 652 square metres of outdoor residential amenity space. The proposed indoor residential amenity space will be 682 square metres and outdoor residential amenity space will be 451 square metres. [70 Edward St] (Building B)

10. 4(5)(B) By-law 438-86 (Building A)

The required minimum number of parking spaces for the dwelling units is 116 spaces. The required minimum number of parking spaces for visitors is 12 spaces. The proposal will have 36 spaces of which 12 spaces will be visitor spaces. (Building A)

11. 8(3) Part I 1 and 12(1) 368 By-law 438-86 (Both Buildings)

The by-law requires that the combined non-residential gross floor area and residential gross floor area be not more than 7.8 times the area of the lot: 20,099.82 square metres. The proposed building is 9.2 times the lot area: 23,723.6 square metres of combined non-residential gross floor area and residential gross floor area. [70 Edward St] (Building B)

The by-law requires that the combined non-residential gross floor area and residential gross floor area be not more than 6.0 times the area of the lot: 8,609.4 square metres. The proposed building is 9.36 times the lot area; 13,432.3 square metres of combined non-residential gross floor area and residential gross floor area. [100 Edward St] (Building A)

12. 8(3) Part I 3(A) and 12(1) 368(ii) By-law 438-86 (Both Buildings)

The by-law requires that the residential gross floor area be not more than 7.8 times the area of the lot: 20,099.82 square metres. The proposed 9 residential gross floor area of the building is 9.2 times the lot area; 23,118.6 square metres. [70 Edward St] (Building B)

The by-law requires that the residential gross floor area be not more than 6.0 times the area of the lot: 8,609.4 square metres. The proposed residential gross floor area of the building is 9.36 times the lot area; 13,061.3 square metres. [100 Edward St] (Building A)

13. 12(2) 111(a) By-law 438-86 (Building B)

(ii) The by-law requires that the exterior face of the exterior wall of the building or structure is set back no less than 7.5 metres from the Bay Street lot line for a height of not less than 3 metres above grade. The proposed building will be setback only 4.5 metres from the Bay Street lot line. [70 Edward St] (Building B)

14. 12(1) 368(v) By-law 438-86 (Building A)

The by-law limits the building to 11,186 square metres of residential gross floor area and non-residential gross floor area. The proposed building will have 13,432.3 square metres of residential gross floor area and non-residential gross floor area. (Building A)

(ii) The by-law limits the building to a residential gross floor area that does not exceed 10,697 square metres; The proposed building will have 13,061.3 square metres of residential gross floor area. (Building A)

(v) The by-law limits the building to contain not more than 165 dwelling units of which not fewer than 19 are one bedroom dwelling units and not more than 6 are bachelor dwelling units; The proposed building will have 189 dwelling units. (Building A)

(vi) The by-law limits the height of the building does not exceed 46.0 metres exclusive of those elements permitted by subsection 4(2)(a)(i) and to be above a height limit of 46.0 metres; 63.55 m. (Building A)

15. 12(2) 380 By-law 438-86 (Both Buildings)

(1)(a) The setback for a tower must be 3.0 metres to a lot line abutting a street and 12.5 metres from the centre line of that street. The proposed tower is 2.4 metres to Elizabeth Street and is 11.8 metres from the centre line (100 Edward St). (Building A)

(1)(b) The setback for a tower must be 12.5 metres from the centre line that is a public lane. The proposed tower is 5.5 metres to Barnaby Place (100 Edward St) (Building A); The proposed tower is 10.0 metres to Barnaby Place (70 Edward St). (Building B)

(1)(c) The setback for a tower must be 12.5 metres from a lot line having no abutting street or lane. The proposed tower is 6.6 metres to the north lot line towards Elm Street (100 Edward St) (Building A); The proposed 10 tower is 10.0 metres to the north lot line towards Elm Street (70 Edwards St) (Building B).

(2) Every tower must be no closer than 25 metres to another tower on the same lot. The proposed setback between the towers at 100 Edward St and 70 Edward St is 22.7 metres (Both Buildings).

(5)(a) Platforms such as a balcony, projecting up to 1.5 metres from the tower may encroach into the separation distances required in sections 12(2)380.(2). The balconies on 100 Edward St (Building A) project 1.75 metres from the tower and encroach into the separation distance required between the towers at 100 Edward St (Building A) and 70 Edward St (Building B).

Site Context

11The proposed development is located as the combined lots municipally known at 70 and 100 Edward Street, and 636 Bay Street (Subject Site). The Subject Site current uses are for the most part two surface parking lots.

12Mr. Goldberg testified that the Subject Site is located within the OP designation of Downtown, and within the Mixed Use Areas designation. The Subject Site is supported by public transit that includes immediate surface transit, and multiple subway station options within a walkable distance. The Subject Site is also located just north of the Downtown Core making the location walkable to major employment.

13The Tribunal was informed by Mr. Goldberg, that the Growth Plan 2020, (“GP”), locates the Subject Site within an Urban Growth Centre.

14Each of the proposed buildings are restricted in height by the SickKids’ Helicopter Flight Path that services the Hospital for Sick Children (“SickKids”) and numerous other hospitals in the immediate vicinity.

Provincial Policy Statement 2020

15It was the expert opinion of Mr. Goldberg that the proposed development advances and is consistent with the policy direction of the PPS.

16It is his opinion that the proposed development optimizes existing infrastructure in a cost-effective manner, intensifies two vacant lots in an identified Urban Growth Centre, and is well supported by frequent surface and subway transit options within an immediate walking distance.

17The Tribunal was informed that the PPS housing policies in s. 1.4 call for a need to provide an appropriate range of housing types and densities. It was the opinion of Mr. Goldberg that the proposed development while smaller in height, due to the flight path restriction, than most tall buildings in the Downtown area does provide a range of 1-bedroom to 3-bedroom dwelling units as desired by the City.

Growth Plan 2020

18The GP identifies the Subject Site as being part of the identified Urban Growth Centre. Mr. Goldberg informed the Tribunal that this designation identifies the area to contribute to growth forecasts of achieving the goal of an overall City population of 3.4 million by 2041. It was his opinion that the infill intensification of the under-utilized Subject Site was appropriate in contributing to achieve these goals.

19The GP also calls for an orderly development of settlement area lands that are Transit-supportive and are near Higher Order Transit. Mr. Goldberg testified that the proposed mixed use development has immediate surface transit at the Subject Site and is within walking distance to several Subway stations. It is his opinion that the proposed development would conform to these policies in the GP.

The City Official Plan

20The Subject Site is subject to various policies of the City OP that include the growth management policies, mixed use areas policies, built form policies, and housing policies.

Growth Management

21Section 2 of the OP contains the growth management policies of the City. Mr. Goldberg directed the Tribunal to sections of this policy that he indicates had the most relevance to the proposed development.

22S. 2.2 states that:

Generally, the growth areas are locations where good transit access can be provided along bus and streetcar routes and at rapid transit stations. Areas that can best accommodate this growth are shown on Map 2: Downtown, including Central Waterfront, the Centres, the Avenues and the Employment Districts. A vibrant mix of residential and employment growth is seen for the Downtown and the Centres.

23It was the opinion of Mr. Goldberg, that the proposed development meets the objectives of this policy. Specifically, he refers to the quick access to both rapid and surface public transit, the creation of residential dwellings that provide opportunities to walk or bicycle to work and utilizes existing municipal services and infrastructure.

Mix Use Areas

24Section 4.5 of the OP describes Mixed Use Areas as:

Mixed Use Areas achieve a multitude of planning objectives by combining a broad array of residential uses, offices, retail and services, institutions, entertainment, recreation and cultural activities, and parks and open spaces. Torontonians will be able to live, work, and shop in the same area, or even the same building, giving people an opportunity to depend less on their cars, and create districts along transit routes that are animated, attractive and safe at all hours of the day and night.

25In the testimony of Mr. Goldberg, he describes the proposed development as a design that would frame the street edge. The buildings orientation to the street with an approximate 6.1 metres (“m”) to 9.1 m sidewalk width would provide for a comfortable pedestrian environment. The buildings will contain at grade commercial opportunities.

26Vehicular parking access and internal loading spaces would enter the Subject Site through the Barnaby Place laneway with a separate access to both buildings. Due to the Subject Site location to public transit, Mr. Goldberg stated that consideration of a lower parking standard was warranted.

Built Form

27It is the expert opinion of Mr. Goldberg that the design of the proposed development will help frame the frontages of the Subject Site along Bay Street, Edward Street, and Elizabeth Street. The proposed development includes a POPs that will have frontage on Edward Street and will front the interior portions of both buildings. The revised settlement proposal addresses street front elevations that provides clear visible entrances to both the residential towers and the commercial portion of the buildings.

28The Tribunal was informed that in the opinion of Mr. Goldberg, both buildings provide appropriate separation distances and setbacks that will result in a comfortable public realm. The mixed use proposed development with at grade commercial spaces is consistent with the character of the area.

Housing Policies

29The OP gives direction for new developments to provide a range of housing choice be made available and encourages intensification of infill lots. The City OP also seeks a balance of appropriate housing types as defined by the subject area Neighbourhoods.

30Mr. Goldberg testified that the revised proposed development would now include 378 (74%) one bedroom dwelling units, 84 (16%) two bedroom dwelling units, and 51 (10%) three bedroom dwelling units providing options for families as desired by the City.

31He further opined that an increase in housing stock was desirable for the Subject Sites location by constructing an infill site that provides housing opportunities close to major employment areas of the Downtown Core and hospital district.

Four Tests

32It was the expert opinion of Mr. Goldberg, that the proposed MV’s meet the general intent of the City OP. The Subject Site is underutilized, and the proposed infill development adequately meets many of the desired policies in the City OP.

33Mr. Goldberg stated that the revised settlement meets the general intent and purpose of the ZBL and does not give rise to any adverse planning impacts.

34As the helicopter flight path maintains a height restriction that is normally lower than other buildings in the immediate area, it was the opinion of Mr. Goldberg that from a numeric and magnitude perspective the requested MV’s collectively are minor in nature.

35He further informed the Tribunal that the proposed development would provide a more efficient utilization of the built-form that is compatible to existing and planned Downtown Area. The proposed development would increase a range of dwelling options that is supported by public transit as desired by the City. For these reason Mr. Goldberg opined that the requested MV’s should be considered desirable development of land uses.

SickKids

36SickKids appeared before the Tribunal as an interested party given that the location of the proposed buildings are in the helicopter flight path to the hospital that could potentially intrude into the flight path. The Tribunal was informed that there are two potential flight paths in the City depending on wind conditions. The SickKids’ flight path services an east/west orientation and services numerous hospitals in the immediate area.

37Counsel for SickKids advised the Tribunal that the Applicants and the City have been working cooperatively with them to come to a suitable resolution and has provided the Tribunal several conditions for its consideration.

38Mr. Goldberg indicated that the Applicants have no concerns with the conditions and supports its inclusion to the Order of the Tribunal

DISPOSITION

39In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided Mr. Goldberg. The Tribunal is persuaded by the evidence that the proposal meets the criteria set out in the legislative four test to be considered for a MV.

40The proposal meets the intent of the City OP and ZBL by its promotion of efficient development of land, accommodates a range of appropriate mixed uses, and intensifies uses within the Downtown area.

41As an infill development of two surface parking lots, the proposed development is supported by a high order of public transit and contributes to the range of housing options, in particular, with the increase in three-bedroom dwelling units as desired by the City, is considered to be an appropriate and desirable development of land use.

42The Tribunal accepts the evidence of Mr. Goldberg that the MV’s are minor in nature and do not raise any adverse planning impacts.

43The Tribunal finds that the proposal is consistent with the policy direction established by the PPS, and conforms to the relevant directives established by the GP, and as maintained by the OP. The Tribunal is further satisfied that the proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and is in the greater public interest. More significantly, the proposal furthers the goals and objectives of the Provincial planning regime to increase housing opportunities in a designated Urban Growth Centre.

44The Tribunal recognizes the concerns of SickKids in regard to the existing helicopter flight path. In the view of the Tribunal this flight path is considered to be significant infrastructure that is required for the greater public good. The Tribunal is satisfied that the condition specified by SickKids that is attached, and have been agreed upon by all of the Parties is appropriate.

ORDER

45THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 438-86 and By-law No. 569-2013 as indicated in Attachment 1 are authorized subject to the conditions set out in Attachment 2 to this Order.

46The Member remains seized for the remaining matters before the Tribunal.

47The Member may be spoken to should any issues arise.

“Steven Cooke”

STEVEN COOKE

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.