Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 27, 2022

CASE NO(S).: OLT-21-001361

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

Applicant and Appellant: PEM (Church) Limited Partnership

Subject: Application to amend Zoning By-law No. 438-86 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: CR T3.0 C2.0 R3.0

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 54-storey residential building with retail at grade

Property Address/Description: 137-149 Church Street and 18-20 Dalhousie Street

Municipality: City of Toronto

Municipality File No.: 18 174573 STE 27 OZ

OLT Case No.: OLT-21-001361

OLT Lead Case No.: OLT-21-001361

OLT Case Name: PEM (Church) Limited Partnership v. Toronto (City)

Heard: July 19, 2022 by video hearing

APPEARANCES:

Parties	Counsel
PEM (Church) Limited Partnership	David Bronskill
City of Toronto	Daniel Elmadany

MEMORANDUM OF ORAL DECISION BY D. CHIPMAN ON JULY 19, 2022, AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a Settlement Hearing for the appeal brought by PEM (Church) Limited Partnership (“Appellant”) regarding the failure of the City of Toronto (“City”) to make a decision on the Appellant’s application for a Zoning By-law Amendment to facilitate a development on the lands located at 137-149 Church Street and 18-20 Dalhousie Street (“Subject Property” / “Subject Site”).

2The Tribunal heard through Mr. Bronskill that Ms. Sharmini Mahadevan, counsel to the property owners of the three properties to the north of the Subject Property would not be attending the hearing as a settlement had been signed so there will be no need to participate in the Settlement Hearing.

3The Tribunal marked the following documents as Exhibits contained in one PDF:

a. Exhibit 1- Exhibit A - Affidavit of David Huynh

b. Exhibit 2 – Exhibit C – Visual Evidence Book, Exhibit D – Document Book

BACKGROUND AND AREA CONTEXT

4The Subject Site is located along the Church Street corridor, which lies between the east edge of the Financial District and the west edge of the King-Parliament area. The Subject Site is a through lot with frontage on the east side of Church Street and the west side of Dalhousie Street and is generally located mid-block between Shuter Street to the north and Queen Street East to the south. The Subject Site is rectangular in shape, has an approximate site area of 1,545 square metres (0.15 hectares) with frontages of approximately 45.75 metres on Church Street and 46.09 metres on Dalhousie Street.

5The east downtown area, including the Subject Site, has seen significant change and redevelopment over the past two decades, particularly through redevelopment south of Queen Street East (i.e. King Parliament and St. Lawrence) and north of Dundas Street East. The immediate context surrounding the Subject Site is currently subject to several active development applications both proposed and under construction. While this redevelopment was initially focused on vacant sites throughout the east downtown, in more recent years the focus has shifted to other properties that are considered underutilized for their context, including former automotive uses and low-rise commercial buildings.

6The Subject Site is an assembly of four parcels municipally known as 137 Church Street, 139-141 Church Street, 145 Church Street, 149 Church Street, 18 and 20 Dalhousie Street.

7To the immediate north of the Subject Site along the Church Street frontage are two 2-storey buildings (151 and 155 Church Street), which are occupied by retail and service commercial uses at grade and either commercial office or residential units on the upper storeys. These buildings share a party wall with an adjoining 2-storey building along the Dalhousie Street frontage (24 and 26 Dalhousie Street) which contain service commercial uses.

8The west side of Church Street between Shuter Street and Dundas Street East is predominantly occupied by St. Michael’s Cathedral Basilica and its associated buildings (200 Church Street and 57 Bond Street).

9To the immediate south of the Subject Site, at the northeast corner of Church Street and Queen Street East is a property assembly that is currently occupied by a number of commercial, retail and restaurant uses within buildings ranging from 1 to 3-storeys in height (60-64 Queen Street East and 131-135 Church Street).

10To the east of the Subject Site, on the block bound by Queen Street East, Dalhousie Street, Shuter Street and Mutual Street, is a large mixed-use development containing a recently completed 29-storey building and a new public park, as well as three additional buildings ranging from 27- to 51-storeys in height that remain under construction (88 Church Street and 10, 30 and 50 Mutual Street).

11On June 8, 2018, a Zoning By-law Amendment application was submitted, at the time of the initial submission the proposal contemplated the redevelopment of the Subject Site with a 49-storey mixed-use building with a measured height of 156 metres, inclusive of the mechanical penthouse (the “Original Proposal”). 480 square metres of retail uses were proposed at grade, as well as 414 residential units with a floor space index (the “FSI”) of 23.60. A 28-storey lower tower portion was proposed atop a 2-6 storey podium, with the uppermost levels of the building set back along the north side to accommodate the St. Michaels Hospital Helicopter Flight Path.

12A Notice of Complete Application was received on August 1,2019, deeming the Application complete as of July 26, 2018.

13A Community Consultation Meeting was held by City Planning Staff at the Bond Place Hotel on June 19, 2019.

14In response to comments received from City Staff and external commenting agencies on the Original Proposal, a resubmission of revised and additional materials in support of the Application was filed on May 21, 2020.

15On November 29, 2021, through discussions with the City, the proposed development was revised to include a 54-storey tower and 27-storey tower with a 3-8 storey podium, with 469 units with a 20.5 FSI and 106 residential parking spaces.

16On September 1, 2021, the applicant appealed the application to the Ontario Land Tribunal (the “OLT”) due to Council not making a decision within the 120-day time frame under the Planning Act.

17On December 2, 2021, a final resubmission of materials in support of the Application were submitted to the City. Through this and the previous resubmissions, the development proposal was revised to consist of a 54-storey mixed-use building, with a total height of 173.5 metres including the mechanical penthouse (the “Settlement Proposal”). In the Settlement Proposal the lower tower is proposed to be 27-storeys in height, atop a 3 to 8-storey podium. The upper tower is stepped back along the east lot line at Levels 30, 32, 34, and 54, including the mechanical penthouse. An overall density of 20.5 FSI is proposed, with 469 residential units and 291 square metres of retail at grade along Church Street.

18On December 15, 2021, City Council adopted the recommendations of a report from City Planning (dated December 1, 2021) including an intention to designate the portion of the Subject Site municipally known as 147 Church Street (including 149 Church Street and 18 and 20 Dalhousie Street) under Part IV, Section 29 of the Ontario Heritage Act. Council’s approval of the alterations to 147 Church Street is conditional, including a requirement for the Owner to enter into a Heritage Easement Agreement with the City and provide a detailed Conservation Plan.

PLANNING INSTRUMENT

19The Settlement Proposal requires a Zoning By-law Amendment (the “ZBA”) to facilitate the development. The Tribunal was provided the following ZBA to consider for approval in principle at this Settlement Hearing being:

• to amend the in-force City Zoning By-law No. 569-2013, as amended

POLICY AND REGULATORY CONTEXT

20The parties jointly requested the Tribunal approve the ZBA. In support of the settlement, the Tribunal heard uncontested land use planning opinion evidence from David Huynh. Mr. Huynh is a Registered Professional Planner and full member of the Canadian Institute of Planners. He was qualified by the Tribunal and provided a detailed contextual and land use planning rationale to support the ZBA. In his opinion, the ZBA satisfies all legislative tests under the Act and represents good planning in the public interest.

Planning Act

21Section 2 of the Planning Act, R.S.O. 1990 c. P.13 (the “Planning Act”) sets out matters of provincial interest for which planning authorities shall have regard to, among other matters, in carrying out their responsibilities to the legislation.

22The Tribunal heard that the Settlement Proposal has regard for these matters of provincial interest:

a. the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest (d);

b. the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems (f);

c. the orderly development of safe and healthy communities (h);

d. the adequate provision of a full range of housing, including affordable housing (j);

e. the appropriate location of growth and development (p);

f. the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians (q); and

g. the promotion of built form that is well designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant (r).

Provincial Policy Statement 2020

23Subsection 3(5) of the Planning Act requires that a decision of the council of a municipality, among other approval authorities, in respect of the exercise of any authority that affects a planning matter, be consistent with the policy statements that are in effect on the date of the decision and conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

24The Tribunal heard that the Application, as reflected in the Settlement Proposal, is consistent with the PPS 2020, in particular the policies relating to intensification and the efficient use of land and infrastructure.

25Mr. Hunyh referred the Tribunal to the following policies stating that the ZBA is consistent with the PPS, including but not limited to Policies 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.4.3, 1.6.7.4, 1.7.1, 1.8.1 and 2.6.

26He opined that given the location of the Subject Site within Downtown Toronto, near existing and planned higher-order transit and within walking distance of schools, community service facilities, employment opportunities and commercial businesses, the Subject Site is an ideal location for mixed-use (residential and retail) intensification consistent with the direction of the PPS.

27The Tribunal heard that the residential component of the Settlement Proposal will contribute to the range of housing options in the east Downtown area and its urban context will promote transit use and active transportation by future residents of the Subject Site. The proposed built form is compact and will make efficient use of the land in a manner that is compatible with the surrounding existing and planned built form context, including the conservation of the existing heritage designated building at 147 Church Street.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended

28Mr. Huynh referred the Tribunal to the following policies and provided context as to the ZBA conformity with the Growth Plan, and in particular Policies 1.2.1, 1.2.3, 2.1, 2.2.1(4), 2.2.2(1), 2.2.2(3), 2.2.3(1), 2.2.4(2), 2.2.4(9), 2.2.6(1), 4.2.7(1) and 4.2.10(1).

29The Subject Site is located within an area expressly identified for accommodating a significant share of population and employment growth, and the Settlement Proposal will contribute to the achievement of complete communities and appropriate levels of intensification within the Downtown Urban Growth Centre and the major transit station areas associated with the Dundas, Queen, and King subway stations.

30He opined that the Settlement Proposal will support the ongoing creation of a complete community in the east Downtown by expanding the range and mix of housing options in the area and by locating residential intensification where future residents will support recent and planned investments in transit, community services and facilities.

City of Toronto Official Plan

31It was his opinion that the Application, as reflected in the Settlement Proposal, conforms to the City of Toronto Official Plan, in particular the policies of the applicable Mixed Use Areas designation, as well as policies related to growth management, built form and housing. He noted that these extracts are based on the in-force Official Plan as of the date the Application was deemed complete. He had reviewed OPA 479 (public realm), OPA 480 (built form), OPA 456 (transportation), OPA 352 (downtown tall buildings) and OPA 406 (the Downtown Plan) and advised that the Settlement Proposal conforms to the directions of these Official Plan Amendments.

32The Tribunal heard that the ZBA is in keeping with the overall policy directions set out in the Official Plan, and in particular Policies 2.2.1(4), 2.2.1(5), 2.4(4), 2.4(8), 3.1.1(9) and (10), 3.1.2(1) through 3.1.2(5), 3.1.3(1) and 3.1.3(2).

33It was his opinion that the Subject Site is well situated to accommodate the level of intensification proposed. Being located within both the Downtown and the Mixed Use Areas designation, the Subject Site is within one of the limited areas within the City where the Official Plan expressly directs residential growth and intensification to occur. In addition, as an existing underutilized site within an urban context that includes transit and other municipal infrastructure and services, intensification of the level proposed will support the objectives of the Official Plan’s growth management strategy, while avoiding any impacts onto lands designated Neighbourhoods and supporting an improved public realm.

Downtown Plan (Official Plan Amendment 406)

34Mr. Huynh stated that the Application was submitted prior to the Downtown Plan and was deemed complete as of July 26, 2018, prior to both Council’s and the ministry’s approval of OPA 406. As such, the policies of the Downtown Plan are not applicable to the Settlement Proposal as specifically stated in Policy 1.9.

35Notwithstanding the non-applicability of the Downtown Plan, the Tribunal heard that the Application, as reflected in the Settlement Proposal, does conform with the policies of the Secondary Plan for the Downtown, in particular the policies for the Mixed Use Areas 2 designation and the policies related to development in proximity to existing and planned rapid transit stations.

36The Tribunal heard that the scale of intensification and proposed built form contemplated by the Settlement Proposal conforms to the policies of the Downtown Plan for Mixed Use Areas 2 and represents an appropriate balancing of the policies for development in proximity to existing and planned rapid transit stations and the built form policies.

Official Plan Amendment 352

37On November 9, 2016, City Council adopted Official Plan Amendment No. 352 (“OPA 352”), which introduced Site and Area Specific Policy 517 (“SASP 517”) applying to the Downtown area, generally bounded by Bathurst Street, Lake Ontario, the Don River, Rosedale Valley Road and the CPR tracks. On the same date, City Council enacted By-law No. 1106-2016 to amend By-law No. 438-86 with respect to tall building setbacks in the “Toronto Downtown” area in order to implement OPA 352. A companion by-law, By-law No. 1107-2016, was enacted on the same date to amend By-law No. 569-2013. OPA 352, as well as By-laws No. 1106-2016 and No. 1107-2016, came into force May 28, 2021.

38The Tribunal heard that the Settlement Proposal provides a high quality, comfortable public realm, appropriately limited shadow impacts on various parks and open spaces; provides appropriate access to natural light and pedestrian level sky views and limits and mitigates uncomfortable wind conditions. Therefore, a reduced setback to the north is appropriate as a 45 metre separation distance is provided to the tower at 65 Shuter Street.

39The proposed tower separation distances that will be achieved to the approved developments to the immediate south of the Subject Site and to the east, on the east side of Dalhousie Street, have been evaluated and will provide appropriate and reasonable levels of privacy and views between towers for future occupants. The proposed 27-storey tower element and 54-storey tower element fit within the planned and existing built form context and will achieve appropriate tower separation distances.

ZONING BY-LAW

40The in-force Zoning By-law applying to the Subject Site, at the time of the Application submission, was Zoning By-law No. 438-86 of the former City of Toronto, as amended. Under By-law No. 438-86, the Subject Site was zoned CR T3.0 C2.0 R3.0 Commercial Residential Zone, with a maximum height of 18.0 metres.

41The CR (Commercial Residential) zone permitted a wide range of residential and non-residential uses, with a maximum total density of 4.0 times the area of the lot, a maximum non-residential density of 2.0 times and a maximum residential density of 3.0 times. A series of permissive and restrictive exceptions applied to the Subject Site, including Sections 12(1)3(b), 12(2)132, 12(2)259, and 12(2)260.

42The Tribunal heard that the new City-wide Zoning By-law No. 569-2013 is in force, except for certain limited provisions that remain under appeal. As such, an amendment to Zoning By-law No. 438-86 is no longer required to permit the Settlement Proposal, as the in-force provisions of Zoning By-law No. 569-2013 supersede the provisions of Zoning By-law No. 438-86.

43The Subject Site is zoned CR 3.0 (c2.0; r3.0) SS1 (x2165), under Zoning By-law No. 569-2013, with a maximum permitted height of 18.0 metres. The majority of the built form standards applicable under By-law No. 569-2013 have been carried forward from By-law No. 438-86, while exception 2165 specifies that certain permissive and restrictive exceptions of By-law No. 438-86 (including Sections 12(2)132, 12(2)259 and 12(2)260) continue to apply.

By-law No. 1432-2017 – St. Michael’s Hospital Helicopter Flight Path

44The Tribunal heard that By-law No. 1432-2017 is the implementing By-law of Ontario Regulation 114/16, providing zoning provisions to protect the St. Michael’s Hospital Helicopter Flight Path. This By-law prohibits any buildings or structures (including temporary structures such as cranes) from penetrating the height limits shown on the “Air Ambulance Service Protection Corridor Maps” for each relevant hospital.

45The Settlement Proposal is stepped back from the north property line above Level 27 to accommodate the flight path. A 2.6 metre setback from the flight path to the north façade of the upper tower levels is proposed to accommodate construction and future building maintenance along this façade without penetrating the flight path.

46Mr. Huynh stated that during the application review process, the draft Zoning By-law Amendment was reviewed by WSP on behalf of St. Michael’s Hospital and found to demonstrate compliance with By-law No. 1432-2017.

Urban Design Guidelines

47Mr. Huynh opined that the minimum tower setbacks to the north property line, as proposed at 7.5 metres for the lower tower element and 10.2 metres for the upper tower element, are adequate in consideration of the context to the immediate north. The adjacent properties to the north include three small commercial properties (151 and 155 Church Street and 24-26 Shuter Street) which have a collective site length of approximately 16 metres and width of approximately 34 metres. Further north is the “Jazz” development which features an approximately 20.0 metre setback from its 28-storey tower to its south property line. As the immediately adjacent properties to the north of the Subject Site are of insufficient size (even as an assembly) to accommodate a tower, the resulting minimum tower separation distance between the tower component of the Settlement Proposal and the tower component of the existing “Jazz” development (at approximately 43.5 metres) will well exceed the 25 metres recommended in the Guidelines.

48The proposed 10.0 metre tower setback to the south property matches the 10.0 metre tower setback provided by the approved development to the south. The resulting total tower separation distance of 20.0 metres, while less than the 25.0 metres recommended in the Guidelines, was in his opinion appropriate for the Subject Site. Further, the tower setback proposed along the east property line, including 10.9 metres to the centreline of Dalhousie Street, appropriately responds to the location, setback and organization of the towers that are part of the under-construction development along the east side of Dalhousie Street.

49The City accepted the proposed settlement subject a number of conditions that must be satisfied by the Applicant; the City requested that should the Tribunal allow the appeal, that the Final Order be withheld until the Tribunal has been advised by the City Solicitor that these conditions have been met.

FINDINGS AND ANALYSIS

50The Tribunal finds that the Application, as reflected in the Settlement Proposal, represents good planning and urban design and that the proposed Zoning By-law Amendment is consistent with the Provincial Policy Statement 2020 and conforms with the Growth Plan for the Greater Golden Horseshoe 2019, as amended, the City of Toronto Official Plan and the Downtown Plan.

51The Tribunal accepts the uncontested evidence of the Mr. Huynh in its entirety and finds the proposed instruments as put forward in the Proposed Settlement meet all the relevant policy tests of the Planning Act, PPS 2020, the Growth Plan and all relevant foundational policies of the City’s OP. It represents good planning and is in the public interest.

52The Tribunal finds that the City has well established planning policy for the area surrounding the Subject Site and has followed a careful, complete, and comprehensive planning review of the revised proposal. The Proposed Settlement aligns with established principles of both provincial and City OP policy making it an appropriate location for the proposed development.

53Reasons include the following:

1. The proposal is compatible to the surrounding communities and optimizes the use of a large, well configured, under utilized site located in a strategic growth area where intensification and high density development exists and is planned to continue;

2. represents an intensification first approach to development and city-building;

3. is served by existing transit facilities and will serve to efficiently use, and significantly contributes to new, municipal infrastructure in the immediate area;

4. has been evaluated against and shown to meet all land use, transportation, built form, urban design, public realm, and parks and open space policies of relevant City OP policies;

5. ensures an attractive and functional public realm;

6. the proposal serves to broaden housing types and choice in this neighbourhood by providing larger units for families, households with children and multi-family households. It contributes to and supports a mixed use, mixed income community by supplying a full range of housing and the continued evolution of this complete community; and

7. represents an efficient use of land and will make use of existing infrastructure in a cost-effective manner by using existing and contributing to the planned infrastructure in the area.

54The supply of all forms of housing is an important policy objective of both the province and the City. The Tribunal is pleased to see the Proposed Settlement includes a mix of residential uses that include two and three bedroom units suitable for families which will become an important addition to the housing supply in the City. Provincial and City housing policy is important in the Tribunal’s consideration of this Proposed Settlement.

55The Settlement Proposal will appropriately intensify an underutilized site with a mixed-use development within the Downtown Urban Growth Centre in proximity to existing and planned higher-order transit stations. The proposal will create new housing and new retail uses in an area intended for significant growth in keeping with the applicable Mixed Use Areas designation in the Official Plan.

56The Tribunal finds that the proposed built form is contextually appropriate and the proposed height and massing will fit harmoniously within the context of existing and approved buildings within the area. The proposed development will reinforce the existing and planned scale of the Church Street corridor through a series of building setbacks, step backs, articulation on the lower podium and the retention of the heritage building at 137 Church Street and will support the pedestrian realm along the adjacent public streets.

57The Tribunal finds that the Settlement Proposal has appropriately taken into consideration provisions to protect the St. Michael’s Hospital Helicopter Flight Path.

58There is also a significant list of conditions requested by City Council should the Tribunal approve in principle what is proposed. It is evident that the Applicant has a substantial path of City approvals to follow before a Final Order may be issued. The Tribunal is prepared to give an Interim Order approving the Proposed Settlement in part. It is therefore appropriate that City Conditions are part of this Interim Order to ensure all necessary matters and requirements are met prior to the Final Order being issued.

ORDER

59THE TRIBUNAL ORDERS that the appeal against By-law No. 569-2013 of the City of Toronto is allowed in part and approved in principle.

60THE TRIBUNAL ORDERS that the Final Order be withheld pending written confirmation from the City Solicitor that the following conditions, set out below in Attachment 1 to this Order, which includes the execution of a Section 37 agreement, as well as the finalization of the form and content of the Zoning By-law Amendment have been satisfied.

“D. Chipman”

D. chipman

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.

ATTACHMENT 1

Authority: Ontario Land Tribunal Decision issued on [date] and Order issued on [date] in Tribunal File OLT-21-001361

CITY OF TORONTO

BY-LAW XXXX-2022(OLT)

To amend the City of Toronto Zoning By-law 569-2013, as amended, with respect to the lands known municipally in the year 2021 as 137-149 Church Street and 18-20 Dalhousie Street.

Whereas the Ontario Land Tribunal, in its Decision issued on [date] and its Order issued on [date], in file OLT-21-001361, 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 137-149 Church Street and 18-20 Dalhousie Street; 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 subsection 37(3) of the Planning Act 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 and the Ontario Land Tribunal, upon appeal, 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; and

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 Orders:

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 to CR 3.0 (c2.0; r3.0) SS1 (x448), as shown on Diagram 2 attached to this By-law.

4. Zoning By-law 569-2013, as amended, is further amended by adding to Article 900.11.10 Exception Number 448, so that it reads:

(448) Exception CR 448

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 137-149 Church Street and 18-20 Dalhousie Street, as shown on Diagram 1 of of By-law [Clerks to supply by-law ##], if the requirements of Sections 6 and 7 and Schedule A of By-law [Clerks to supply by-law ##] are complied with, a building or structure may be constructed, used or enlarged in compliance with regulations (B) through (N) below;

(B) Despite Regulation 40.10.40.40(1), the permitted maximum gross floor area must not exceed 32,500 square metres, and is subject to the following:

(i) a maximum gross floor area 32,100 square metres may be used for residential uses; and,

(ii) a minimum gross floor area 280 square metres must be provided for non-residential uses;

(C) The provision of dwelling units is subject to the following:

(i) A minimum of 18 percent of the total number of dwelling units must contain two bedrooms;

(ii) A minimum of 10 percent of the total number of dwelling units must contain three or more bedrooms;

(D) Despite Regulations 40.5.40.10(1) and (2), the height of a building or structure is measured from the orthometric elevation of 87.69 metres with reference to CGVD1928:Pre1978Adj to the highest point of the building or structure;

(E) Despite Regulation 40.10.40.10(1), the permitted maximum height of a building or structure, including a mechanical penthouse, is the number following the symbol “HT” as shown on Diagram 3 of By-law [Clerks to supply by-law ##];

(F) Despite Regulation 40.10.40.10(7), the permitted maximum storeys of any part of a building or structure, including a mechanical penthouse, is the number following the symbol “ST” as shown on Diagram 3 of By-law [Clerks to supply by-law ##];

(G) Despite (F) above and Clause 40.5.40.10, the following elements, structures, equipment, or parts of a building are permitted to project above the permitted maximum height as shown on Diagram 3 of By-law [Clerks to supply by-law ##] as follows:

(i) elements of a green roof, drainage, insulation and roof surface materials, parapets, vents and planters within the area labelled “LOWER TOWER” on Diagram 3, to a maximum of 1.0 metres or an orthometric elevation of 173.1 metres with reference to CGVD1928:Pre1978Adj, whichever is less;

(ii) railings and dividers, wind screens, landscaping elements, davit arms, aeronautical lighting, and light fixtures within the area labelled “LOWER TOWER” on Diagram 3, to a maximum of 2.5 metres or an orthometric elevation of 174.6 metres with reference to CGVD1928:Pre1978Adj, whichever is less;

(iii) elements of a green roof, drainage, insulation and roof surface materials, parapets, railings, window washing equipment, building maintenance units, lightning rods, antennae, satellite dishes, vents, aeronautical lighting, unenclosed stairs, cooling and ventilating equipment within the area labelled “MECHANICAL PENTHOUSE” on Diagram 3, to a maximum of 6.5 metres;

And

(iv) except where the above (G)(i), (ii) and (iii) apply, elements of a green roof, drainage, insulation and roof surface materials, wind screens, parapets, awnings, guard rails, railings and dividers, structures for open air recreation, pergolas, trellises, terraces, landscaping elements, planters, aeronautical lighting, light fixtures, architectural features, balustrades, eaves, screens, chimneys and vents, a maximum of 2.5 metres;

(H) Despite Regulations 40.10.40.50(1)(B) and 40.10.40.50(2), a minimum of 938 square metres of outdoor amenity space must be provided;

(I) Despite Regulation 40.10.40.70(1) and Clause 600.10.10, the required minimum building setbacks are as shown in metres on Diagram 3 By-law [Clerks to supply by-law ##];

(J) Despite (I) above and Clause 40.10.40.60, the following elements of a building or structure are permitted to encroach into the required minimum building setbacks as follows:

(i) cladding, eaves, cornices, parapets, windowsills, bollards, and columns a maximum of 0.3 metres; and

(ii) canopies, light fixtures, awnings, ornamental elements, architectural features, planters, guardrails, railings or dividers, stairs, stair enclosures, access ramps, vents, screens and landscape planters and features, public art features, window washing equipment and building maintenance units a maximum of 1.5 metres;

(iii) davit arms and window washing equipment along the east and west building main walls a maximum of 2.2 metres;

(iv) planters or site servicing features located at grade a maximum of 3.5 metres;

(v) along the east and west building main walls for the storeys located wholly above the orthometric elevation of 113.24 metres and below the orthometric elevation of 172.12 metres with reference to CGVD1928:Pre1978Adj balconies, balcony dividers and balcony railings a maximum of 1.5 metres;

(K) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, a total of 120 parking spaces for a mixed use building must be provided and maintained in accordance with the following:

(i) a minimum of 0.029 parking spaces per dwelling unit must be provided for visitors to residents of the mixed use building; and

(ii) no parking spaces are required for non-residential uses;

(L) Despite Regulation 200.15.1(1), an accessible parking space must have the following minimum dimensions:

(i) a width of 3.4 metres;

(ii) a 1.5 metre wide accessible barrier-free aisle or path is required along the entire length of one side of an accessible parking space.

(M) Despite Clause 220.5.10.1, one Type “G” loading space and one Type “C” loading space must be provided and maintained on the lot;

(N) Despite Regulation 230.5.1.10(10), both “long-term” and “short-term” bicycle parking spaces may be provided in a stacked bicycle parking space;

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

5. Despite any existing or future severance, partition or division of the lands subject to Bylaw [Clerks to supply by-law ##], the provisions of this By-law will apply to the whole of the lands as one lot as if no severance, partition or division had occurred.

6. The provisions of this By-law respecting the height of any building or structure, including permitted exceptions, are subject to any further limitations as may be set out in a by-law passed under an agreement pursuant to Section 5.81 of the Aeronautics Act, R.S.C. 1985, c. A-2.

7. Section 37 Provisions

(A) Pursuant to Section 37 of the Planning Act, and subject to compliance with this Bylaw, 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 hereof 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 required that the owner provide certain facilities, services or matters prior to the issuance of a building permit, the issuance of such permit shall be dependent on satisfaction of the same.

(C) The owner shall not use, or permit the use of, a building or structure 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 issued on [date] and Ontario Land Tribunal Order issued on [date]in Tribunal File OLT-21-001361.

SCHEDULE A

Section 37 Provisions

The facilities, services and matters set out below are required to be provided to the City at the owner's expense in return for the increase in height and density of the proposed development on the lands as shown in Diagram 1 in this By-law and secured in an agreement or agreements under Section 37(3) of the Planning Act whereby the owner agrees as follows: