738489 Ontario Limited v. Toronto (City), 2022 CanLII 69416

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 26, 2022

CASE NO(S).: OLT-22-002457 (Formerly PL171510)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: 738489 Ontario Limited Subject: Application to amend Zoning By-law No. 436-86 – Refusal or neglect of City of Toronto to make a decision Existing Zoning: Reinvestment Area (RA) Proposed Zoning: Site Specific (To be determined) Purpose: To permit a mixed-use development with retail and commercial uses Property Address/Description: 582-590 King Street West, 471 and 473 Adelaide Street West and 115 Portland Street Municipality: City of Toronto Municipality File No.: 17 215103 STE 20 OZ OLT Case No.: OLT-22-002457 Legacy Case No.: PL171510

OLT Case Name: 738489 Ontario Limited v. Toronto (City)

BEFORE: SHARYN VINCENT, VICE-CHAIR

Tuesday, the 26th day of July, 2022

THIS MATTER having come before the Tribunal for a public hearing on May 3, 2022, and after the hearing, the Tribunal in its Decision issued June 6, 2022 having allowed the Zoning By-law Amendment appeal in principle, and having withheld its Order pending confirmation from the parties that the conditions appended to the Decision as Attachment A have been fulfilled;

AND THIS MATTER having come before the Tribunal for a Telephone Conference Call on July 26, 2022, and the Tribunal having read the uncontradicted affidavit evidence of Paul Stagl, sworn July 22, 2022, regarding the use of an “H” Holding provision in the Zoning By-law Amendment for conditions 3(b), (c), €, (f) and (g) as set out in Attachment A to the Decision that have not been fulfilled;

AND THE TRIBUNAL having been advised by the City Solicitor that conditions 3(a) and (d) as set out in Attachment A to the Decision have been met to the satisfaction of the City;

THE TRIBUNAL ORDERS that Zoning By-law Amendment attached as Appendix A is approved.

Euken Lui REGISTRAR

APPENDIX A

CITY OF TORONTO

Bill No. ~

BY-LAW No. ~ - 2021 (OLT)

To amend City of Toronto Zoning By-law 569-2013, as amended,

with respect to the lands municipally known in the year 2021 as

582-590 King Street West, 471-473 Adelaide Street West and 115 Portland Street

Whereas the Ontario Land Tribunal, in its Decision issued on [date] and its Order issued on [date], in file PL171510, in hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P13, as amended, ordered the amendment of Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2021 as 582-590 King Street West, 471-473 Adelaide Street West and 115 Portland Street; and

Whereas the Official Plan for the City of Toronto contains provisions relating to the use of a Holding (H) symbol with conditions in the Zoning By-law; and

Whereas the Official Plan for the City of Toronto contains provisions relating to the authorization of increases in height and density of development; and

Whereas pursuant to Section 37 of the Planning Act, a by-law under Section 34 of the Planning Act, may authorize increases in the height and density of development beyond those otherwise permitted by the by-law and that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law; and

Whereas pursuant to Section 37 of the Planning Act, as it read on the day before section 1 of Schedule 17 to the COVID-19 Economic Recovery Act, 2020, S.O. 2020., c. 18 (“COVID-19 Economic Recovery Act, 2020”) came into force, a by-law under Section 34 of the Planning Act, may authorize increases in the height and density of development beyond those otherwise permitted by the by-law and that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law; and

Whereas subsection 37(3) of the Planning Act, as it read on the day before section 1 of Schedule 17 to the COVID-19 Economic Recovery Act, 2020 came into force, provides that where an owner of land elects to provide facilities, services and matters in return for an increase in the height or density of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services and matters; and

Whereas the owner of the aforesaid lands has elected to provide the facilities, services and matters hereinafter set out;

Whereas the increase in height and density permitted beyond that otherwise permitted on the aforesaid lands by By-law 569-2013 as amended, is permitted in return for the provision of the facilities, services and matters set out in this By-law which is secured by one or more agreements between the owner of the land and the City of Toronto;

The Ontario Land Tribunal, by Order, amends By-law 569-2013 as follows:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law;

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, Chapter 800 Definitions;

3. Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.10 respecting the lands outlined by heavy black lines from a zone label of CRE x77 to (H) CRE (x55), as shown on Diagram 2 attached to this By-law; and

4. Zoning By-law 569-2013, as amended, is further amended by adding to Article 900.12.10 Exception Number CRE (x55) so it reads:

Exception CRE 55

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections.

Site Specific Provisions:

(A) On 582-590 King Street West, 471-473 Adelaide Street West and 115 Street, if the requirements of By-law _____-2021 (OLT) are complied with, buildings and structures in compliance with (B) to (V) below may be erected or used;

(B) The lot consists of those lands shown on the attached Diagram 1;

(C) In addition to the non-residential uses permitted in regulation 50.10.20.10(1)(A), public parking is also permitted;

(D) The permitted maximum non-residential gross floor area of all buildings and structures is 37,500 square metres;

(E) Despite regulation 50.5.40.10(1), the height of a building or structure is measured from the Canadian Geodetic Datum elevation of 89.29 metres to the highest point of a building or structure;

(F) Despite regulations 50.10.40.10(1) and (2), the permitted maximum height of a building or structure, including the mechanical penthouse at a height of 51.95 metres, is the number in metres following the letters "HT" as shown on Diagram 3 of By-law [Clerks to insert By-law ##];

(G) Despite regulation 50.10.40.10(4), the permitted maximum number of storeys in a building is the number following the ST symbol as shown on Diagram 3 of By-law [Clerks to supply By-law ##];

(H) Despite (F) above, and regulations 50.5.40.10(4), (5), (6), (7), and (8), the following equipment or structures may project beyond the permitted maximum height shown on Diagram 3 of By- law [Clerks to supply by-law ##] as follows:

i. Elevator shafts, elevator overrun, elevator machine room, enclosed stairwells, and access ladders to a maximum of 8.5 metres;

ii. Electrical or utility equipment, window washing equipment, cooling tower, air handlers, exhaust fans, maintenance equipment storage, chimneys, vents, and water supply facilities, and structures that enclose, screen or cover the elements listed above, to a maximum of 1.5 metres;

iii. Parapets, railings, dividers, architectural features ornamental elements, canopies, guard rails, lightning rods, privacy screens, insulation and roof surface materials, building equipment and noise and wind mitigation structures, to a maximum of 3.0 metres; and

iv. Landscaping features and structures used for outdoor amenity space or open air recreation, terraces, trellises, roof drainage, noise and wind mitigation structures, and planting and other landscaping structures or elements of a green roof, to a maximum of 3.0 metres;

(I) Despite clauses 50.5.40.70, 50.10.40.70 and 50.10.40.80, the required minimum building setbacks and minimum above-ground distance between main walls are shown in metres on Diagrams 3, 4 and 4.A – 4.H of By-law [Clerks to supply by-law ##];

(J) Despite (I) above, and regulation 5.10.40.70(1), and clauses 50.5.40.60 and 50.10.40.60, the following elements may encroach into the required minimum building setbacks and main wall separation distances as follows:

i. Ornamental and architectural elements, window projections, window washing equipment, mechanical and privacy screens, mechanical equipment, fences, patios, decks, pillars, terraces, planters, trellises, railings, guard rails, balustrades, stairs, stair enclosures, wheelchair ramps, site servicing, art and landscape features and awnings, to a maximum of 3.0 metres;

ii. Canopies and underground garage ramps to a maximum of 4.0 metres; and

iii. Cornices, parapets, lighting fixtures, window sills, eaves, vents and stacks, ventilation shafts, to a maximum of 1.0 metre;

(K) Regulation 50.10.40.30(1), with respect to maximum building depth, does not apply;

(L) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, a maximum of 122 parking spaces are required on the lot;

(M) Despite Regulation 200.5.1.10(2), any parking spaces provided on the lot within an “automated parking system” may have a minimum width of 2.6 metres, and be obstructed on one side, without being required to provide additional width of 0.3 metres for the obstructed sides of the parking space;

(i) for the purpose of this exception, an "automated parking system" means a mechanical system for the purpose of parking and retrieving vehicles with or without drivers in the vehicle during parking and without the use of ramping or drive aisles, and where automated maneuvering of other vehicles may be required for vehicles to be parked or retrieved;

(N) Despite Regulation 200.5.1.10(2)(D), Electric Vehicle Infrastructure, including electrical vehicle supply equipment, does not constitute an obstruction to a parking space;

(O) Regulations 200.5.1.10(5), (6) and (14) do not apply to parking spaces in an “automated parking system”;

(P) Despite Regulation 200.15.10(1) and Clauses 200.15.10.5 and 200.15.10.10, accessible parking spaces are not required;

(Q) Despite 200.5.1.10(13), access to parking spaces may be provided by an "automated parking system";

(R) Regulations 200.5.1(3) and (12) do not apply to an "automated parking system", provided that the access to the elevating mechanism enclosure of the "automated parking system" complies with the following minimum dimensions:

(i) Length of 5.6 metres;

(ii) Width of 3.4 metres;

(iii) Vertical clearance of 2.1 metres; and

(iv) the entire length of the elevating mechanism enclosure must be adjacent to a 1.5 metre wide accessible barrier free aisle or path;

(S) Despite regulation 230.5.1.10(9)(A), "long-term" and "short-term" bicycle parking spaces for non-residential uses may be located at grade, the ground floor and/or in a P1 level on any level above or below ground in the building;

(T) Despite regulation 230.5.10.1(1) and Table 230.5.10.1(1):

(i) a minimum of 64 bicycle parking spaces must be provided as "long-term" bicycle parking spaces; and

(ii) a minimum of 28 bicycle parking spaces must be provided as "short-term" bicycle parking spaces.

(U) Despite regulations 50.10.90.10(1), 220.5.10.1 (3), (4), (5), (8), and article 220.20.1, a minimum of two Type “B” loading spaces and two Type “C” loading spaces must be provided and maintained; and

(V) Section 600.10 with respect to building setbacks for buildings in the downtown, does not apply.

5. Holding Provisions

(A) The lands zoned with the “(H)” symbol delineated by heavy lines on Diagram 2 attached to and forming part of this By-law shall not be used for any purpose other than the uses and buildings as existed on the site as of the date of the passing of this by-law until the “(H)” symbol has been removed.

(B) An amending by-law to remove the Holding provision in (A) above, in whole or in part, shall be enacted by City Council when the following conditions have been fulfilled to the satisfaction of Council:

(i) The comments in Part I.A.2. of the Memorandum from the Manager, Development Engineering, Engineering and Construction Services, dated December 21, 2017, have been addressed to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services

(ii) The owner has entered into and registered on title a Heritage Easement Agreement with the City for the property at 582 King Street West, including 590 and 592 King Street West and 471 and 473 Adelaide Street West, substantially in accordance with plans and drawings prepared by KFA Architects and Planners Inc. dated March 13, 2020, and the Heritage Impact Assessment prepared by GBCA Architects dated February 28, 2020, subject to and in accordance with the approved Conservation Plan referred to below, all to the satisfaction of the Senior Manager, Heritage Planning including execution of such agreement to the satisfaction of the City Solicitor

(iii) The owner has provided a detailed Conservation Plan prepared by a qualified heritage consultant that is substantially in accordance with the conservation strategy set out in the Heritage Impact Assessment for the Lands dated February 28, 2020, to the satisfaction of the Senior Manager, Heritage Planning

(iv) The owner has withdrawn their appeal(s) of the King-Spadina Heritage Conservation District Plan, and if not an appellant, but rather a party to such appeals, the owner shall withdraw as a party and not seek any party or participant status on the appeals, as it relates to the development site

(v) The owner has paid for and constructed any improvements to the municipal infrastructure in connection with the Functional Servicing Report, to be submitted for review and acceptance by the Chief Engineer and Executive Director, Engineering and Construction Services, should it be determined that improvements to such infrastructure are required to support this development.

Prevailing By-laws and Prevailing Sections: (None Apply)

6. Despite any future severance, partition or division of the lands shown on Diagram 1, the provisions of this By-law will apply as if no severance, partition or division has occurred.

7. Section 37 Provisions

(A) Pursuant to Section 37 of the Planning Act, and subject to compliance with this By-law, the increase in height and density of the development is permitted beyond that otherwise permitted on the lands shown on Diagram 1 in return for the provision by the owner, at the owner's expense of the facilities, services and matters set out in Schedule A and which are secured by one or more agreements pursuant to Section 37(3) of the Planning Act that are in a form and registered on title to the lands, to the satisfaction of the City Solicitor;

(B) Where Schedule A of this By-law requires the owner to provide certain facilities, services or matters prior to the issuance of a building permit, the issuance of such permit shall be dependent on the satisfaction of the same; and

(C) The owner shall not use, or permit the use of, a building or structure on the site erected with an increase in height and density pursuant to this By-law unless all provisions of Schedule A are satisfied.

Ontario Land Tribunal Decision isued on [DATE] and Order issued on [date] in OLT File No. PL171510

SCHEDULE A

Section 37 Provisions

The facilities, services and matters set out below are required to be provided by the owner of the lot at their expense to the City in accordance with one or more agreements pursuant to Section 37(3) of the Planning Act, in a form satisfactory to the City with conditions providing for indexing escalation of both the financial contributions and letters of credit, development charges, indemnity, GST, HST, termination and unwinding, and registration and priority of agreement:

1. The owner shall provide community benefits as follows:

a. Prior to the issuance of the first above-grade building permit, the owner shall make a cash contribution in the amount of $1,015,000.00 to be directed towards the provision of community services and facilities, parkland improvements and/or public realm improvements in the vicinity of the lot to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor;

b. the cash contribution referred to in Part 1.a. above shall be increased upwards by indexing in accordance with the Statistics Canada Non-Residential Construction Price Index for Toronto, calculated from the date of registration of the Section 37 Agreement to the date the payment is made to the City;

c. in the event the cash contribution referred to in Part 1.a. above has not been used for the intended purposes within three (3) years of the By-law coming into full force and effect, the cash contribution may be redirected for another purpose, at the discretion of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor, provided that the purpose is identified in the Toronto Official Plan and will benefit the community in the Ward; and

2. The following matter is also to be secured in the Section 37 Agreement as a legal convenience to support development:

a. prior to the commencement of any demolition, shoring or excavation work, the owner agrees to submit, and thereafter implement, a construction management plan to address such matters as noise, dust, street closures, parking and laneway uses and access; such plan shall be to the satisfaction of the General Manager, Transportation Services and the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor;