Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

August 5, 2022

CASE NO(S).:

OLT-22-003344

(Formerly PL171514)

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

Applicant and Appellant:

2477879 Ontario Inc. et al

Subject:

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

Existing Zoning:

Reinvestment Area (RA)

Proposed Zoning:

Site Specific (To be determined)

Purpose:

To permit a 42-storey commercial building Property

Address/Description:

301-319 King Street West

Municipality:

City of Toronto

Municipality File No.:

13 144733 STE 20 OZ

OLT Case No.:

OLT-22-003344

Legacy Case No.:

PL171514

OLT Lead Case No.:

OLT-22-003344

Legacy Lead Case No.:

PL171514

OLT Case Name:

2477879 Ontario Inc. et al v. Toronto (City)

Heard:

July 26, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

2477879 Ontario Inc.

1579661 Ontario Inc.

Claireville Holdings Limited; and Frances Danyliw

(collectively the “Applicants”)

Annik Forristal

City of Toronto (“City”)

Alexander Suriano

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON JULY 26, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Decision follows the Settlement Hearing conducted on July 26, 2022, and provides a Final Order amending City of Toronto Zoning By-law 569-2013 (“ZBL 569-2013”) in the form requested, effective as of July 26, 2022.

2The Applicants applied to the City to amend the City’s zoning requirements for the site comprised of multiple lots at 301-319 King Street West (“Site”). There are multiple buildings with heritage designations located on the Site, designated as Downtown and as Regeneration Areas in the City’s OP, within the King-Spadina Secondary Plan area and zoned as Reinvestment Area under Zoning By-law 438-86, and Commercial Residential Employment under Zoning By-law 569-2013.

3The Applicants initially made an application for zoning amendments to permit a 42-storey commercial building on the Site, which was later revised to include the lands municipally known as 301-303 King Street West. The Applicants appealed when no decision was made by City Council. The parties subsequently entered into extended discussions to resolve the Applications and the Appeal and jointly requested that the Tribunal schedule this Settlement Hearing.

4The eventually proposed and accepted development will permit a 50-storey, 157 metre-high mixed use building, inclusive of mechanical penthouse with 403 residences, 3,252 square metres of retail space and 28,440 square metre of residential space (“Development”). The overall design of the Development resulted in adjusted setbacks and step backs and amendments to the form of the base and podium of the building to accommodate the heritage properties and infill buildings. Of note is the angled built-form from the fourth to the eighth storeys, referred to as the “neck” with the residential tower then extending from the ninth to the fiftieth floor, and having a floor plate of 658 square metres.

5In support of the settlement, the Tribunal received the Affidavit of Tyler Peck sworn July 22, 2022, inclusive of 19 Exhibits A through S, which was marked as Exhibit 1 to the Hearing. All references to Exhibits in this Decision are those Exhibits within Exhibit 1 to the Hearing.

6Mr. Peck provided planning evidence in support of the proposed settlement of the Appeal, with the consent of the City. The Tribunal received Mr. Peck’s curriculum vitae (Exhibit A) and his executed Acknowledgement of Expert’s Duty dated July 21, 2020 (Exhibit B). Mr. Peck was qualified by the Tribunal to provide expert evidence in the area of land use planning.

7A draft Zoning By-law Amendment (“ZBLA”) was provided to the Tribunal for review and approval and is marked as Exhibit 2 to this Settlement Hearing. As of the date of the Order, due to the status of the City’s zoning by-laws, the Applicants and the City require only an amendment to Zoning By-law No, 569-2013. As explained herein, the Parties have requested that a final Order be made effective at the earliest possible date, and as of the date of the Settlement Hearing.

ISSES

8In considering the ZBLA Application and Appeal, the Tribunal must have regard to those matters of Provincial interest set out in s. 2 of the Planning Act, and must be satisfied, pursuant to s. 3(5) that the proposed instrument, as it will permit the proposed Development, is consistent with the Provincial Policy Statement 2020 (“PPS”) and will conform with, or not conflict with, the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”).

9The ZBLA must also conform to the City’s Official Plan (“City OP”), and its related policies, specifically, the Downtown Policies, the Regeneration Areas Policies, Transportation and Built-Form and Heritage Policies, as well as the King-Spadina Secondary Plan. The ZBLA must also provide for proper performance standards as they will be provided for in the ZBLA, as it will amend the City’s Zoning By-law. The Tribunal generally must determine if the proposed ZBLA and Development represent good planning in the public interest and should be enacted and approved.

10In considering these issues and determining this Appeal the Tribunal must also have regard to any decision of City Council as it related to the ZBLA, including its recent decision to approve the proposed settlement and amendment to the ZBLA, and also to the supporting information and material that was before Council in making such decisions in relation to the Appeal now before the Tribunal.

ANALYSIS OF THE EVIDENCE AND FINDINGS

11Upon hearing the uncontroverted planning evidence of Mr. Peck, and for the reasons set out herein, the Tribunal found, in all respects, that the proposed ZBLA, as it will permit the proposed Development, addressed all of the statutory requirements under the Planning Act, was in conformity to all municipal planning policies and represented good planning in the public interest. The Tribunal accordingly delivered an oral decision allowing the ZBLA Appeal, in part, and amending ZBL 569-2013 as it will apply with respect to the Site in accordance with the draft ZBLA submitted jointly by the Applicants and the City.

12Mr. Peck provided a comprehensive overview of the history of the Applications and the amended iterations of the proposed Development and an overall summary of the final proposed built-form as it will integrate the heritage buildings along King Street West and be constructed. The Development’s existing and planned context was also thoroughly reviewed by Mr. Peck in his Affidavit. The Tribunal has reviewed the plans, drawings and renderings (Exhibit L to Mr. Peck’s Affidavit) presented to illustrate the final form of the proposed Development as it will be situated on the south side of King Street West.

13The Development’s overall design retains the facades of the heritage buildings fronting onto the south side of King Street West which are to be preserved in place, repaired and restored, with infill base buildings proposed for the vacant portions of the Site. This three-storey built-form is to provide a continuity of streetscape and represent the base for the Development. The ground floor uses will include restaurant uses as well as the entrance to the tower and other commercial and office uses. Access to the underground garage and loading spaces will be directed to the rear of the building via the public lane.

14The overall design in the proposed Development results in a 50-storey tower rising from the base of heritage buildings and facades, and new construction, through the transition of the “neck” created by the interesting angled built-form extending outwards from the fourth through to the eighth storeys, and then rising vertically thereafter. Mr. Peck has reviewed the setbacks relative to the context, with the initial setback of 6.1 metres from King Street West at the starting point of the neck at the fourth storey and then decreasing in the angle to a final 3-meter setback from the street for the tower. Similarly, the angled neck on the west and east sides of the building will angle outward from the third storey with an eventual setback average of 11.5 metres on the west side of the tower and 10.0 meters to the façade on the east side of the tower. A uniform tower setback of 1.5 meters will exist at the rear along the lane. The 4.4 square meters of amenity space per unit provided for within the building exceeds the applicable amenity space performance standard under ZBL 569-2013.

15Mr. Peck also provided an overview of the agreed-upon section 37 community benefit contribution to the City. This amount is to be allocated for community services and facilities in the local Ward area at the discretion of the Chief Planner and Executive Director of City Planning in consultation with the Ward Councillor. The agreement is also in place for the Applicants to use best efforts to include at least three commercial restaurant uses on the ground floor of the Site, with the intent of preserving aspects of the “restaurant row” character preceding the Development.

16Mr. Peck’s evidence confirms to the Tribunal that in all respects the proposed Development, as it will be permitted under the ZBLA, “hits all the marks” of the higher order planning policies set out in the PPS and the Growth Plan and has regard for those matters of Provincial interest. The Development, as it will exist within the vibrant and evolving King-Spadina East precinct and Entertainment District, part of the City’s settlement area identified for growth and development, will provide appropriate intensification with an appropriate range and mix of housing types in proximity to employment areas and promote economic development in close proximity to multiple transit routes and facilities. The Development will contribute to a complete community. As demonstrated in the Heritage Impact Assessment, the Development will also importantly conserve built heritage resources and heritage attributes of protected heritage property.

17Mr. Peck has opined, and the Tribunal accepts and concludes, that in all respects the proposed Development and the ZBLA are consistent with the PPS, conform to the Growth plan and have appropriate regard for matters of Provincial interest.

18It is evident that the focus of the efforts of the Applicants and the City have really been directed to matters of conformity with those core planning policies of the Official Plan and King-Spadina Secondary Plan, inclusive of the Downtown, Regeneration Area, Transportation, Built Form and Heritage Polices. Mr. Peck has addressed the manner in which the final iteration of the proposed Development, as accepted and approved by City Council, conforms to all of these policies, and is supportive and compliant with other newer policies that, while not technically applicable to the Development due to their in-force dates, nevertheless have been considered.

19Ultimately, in consideration of these policies it is Mr. Peck’s planning opinion that the Development’s built-form has incorporated appropriate urban design principles relating to scale, massing, height, street level proportionality, pedestrian oriented uses and the public realm, with appropriate transition to immediate context and general west to east height transition (as demonstrated by the context visuals included in Mr. Peck’s affidavit materials). Shadowing, wind conditions, sky view, have all been considered and addressed and there is, in Mr. Peck’s view, conformity with the tall building policies requiring the Development to contribute to and reinforce the emerging pattern of tall buildings in the area that is compatible with its existing and planned contexts. From a heritage perspective the Heritage Impact Assessment demonstrates that the heritage impacts of the Development are acceptable, consistent with redevelopment in the area and incorporates and preserves a considerable amount of the heritage fabric in maintaining the heritage building “street wall” along the south side of this block of King Street West.

20Mr. Peck has also opined that the Development has regard for OPA 352 relating to Tall Buildings, meets the intent of the “priority retail streets” Zoning By-laws 1681-2019 and 1682-2019, and the pending King-Spadina Secondary Plan amendments (OPA 486) and King-Spadina Heritage Conservation District Plan.

21Mr. Peck has provided his overall planning opinions supportive of the Development and the ZBLA presented for consideration and approval by the Tribunal.

22Accepting the whole of Mr. Peck’s planning opinions, and in summary, the Tribunal finds that the proposed Development represents an appropriate form of intensification for the Site and in considering the higher order Provincial polices, finds that it has regard for those matters of Provincial interest set out in s. 2 of the Planning Act, is consistent with the PPS 2020 as it represents intensification and efficient development in an existing urban area that is well-served by existing infrastructure including access to higher order transit infrastructure. The Development, as it will be permitted under the ZBLA also conforms to the Growth Plan 2020 as it represents appropriate intensification within the delineated built-up area and urban growth centre that has been identified in the Official Plan as a focus for growth, and comprises transit-supportive, mixed use development that will contribute to the realization of a complete community.

23The Tribunal finds that the proposed Development conforms to the policies of the Official Plan and the King-Spadina Secondary Plan, and is compatible and in keeping with the existing and planned context of tall buildings, with respect to development in Regeneration Areas in the Downtown and Central Waterfront by introducing a mixed use tall building which adequately transitions to the surrounding area and provides a compatible built form with respect to the base building, setbacks and step backs from the existing heritage buildings.

24Generally, the Tribunal finds that the Development appropriately integrates heritage buildings, provides for additional housing options in the area, provides for restaurant and commercial/offices uses, and will contribute to the vibrancy of Restaurant Row and the Entertainment District.

25The Tribunal finds that the proposed Development represents good planning and is in the public interest.

26With respect to the form of the ZBLA presented under the settlement proposed by the Applicants and approved by City Council on February 26, 2020 (Exhibit K). Mr. Peck has addressed the inclusion of the Holding Provisions pursuant to s. 36 of the Planning Act and as provided for in the City’s Official Plan which will allow for the implementation of the settlement by allowing for the Applicants and the City to collectively focus on three “tranches” of conditional requirements: the finalization and registration of a Section 37 Agreement; the finalization of the Heritage Easement Agreement; and the resolution of outstanding engineering and construction matters through a Functional Servicing Report and Stormwater Management Report. In Mr. Peck’s view, the utilization of the Holding Provisions within the ZBLA requiring the satisfaction of these conditions represents an appropriate means of securing the ultimate desired use of the Subject Site in conformity with the Official Plan.

27The Tribunal will accordingly allow the Appeal in part and will make the necessary Order based upon the draft Zoning By-law Amendment presented jointly by the Applicants and the City. As well, although it is likely that this Memorandum of Oral Decision and the formal Order will be issued well in advance of August 12, 2022, out of an abundance of caution the Tribunal has, and will, direct that the Order of the Tribunal will be effective as of the date of this Settlement Hearing. The Tribunal is mindful of the impending change in the legislation governing community benefits under s. 37 of the Planning Act, and the ultimate impact of the City’s new community benefits charge by-law expected to be enacted by City Council on the 15^th day of August 2022 upon pending developments and zoning by-law applications that have not resulted in a final by-law being passed prior to the passage of the new community benefits charge by-law.

ORDER

28THE TRIBUNAL ORDERS that the Appeal is allowed in part and Zoning By-law 569-2013 of the City of Toronto, as amended, is hereby amended in the manner set out in Attachment “1” to this Order. The Tribunal authorizes the municipal clerk of the City of Toronto to format, as may be necessary, and assign a number to these by-laws for record keeping purposes.

29Pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, this Order shall be, and was, effective as of the date of the hearing of this Appeal, and the delivery of the Oral Decision and Order of the Tribunal, on Tuesday, July 26, 2022.

“David L. Lanthier”

DAVID L. LANTHIER

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.

Attachment “1”