BSAR (Queen) LP v. Toronto (City), 2022 CanLII 73915

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 12, 2022

CASE NO.: OLT-22-002282 (formerly PL200567)

EFFECTIVE DATE: August 11, 2022

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

Applicant and Appellant: BSAR (Queen) LP

Subject: Application to amend Zoning By-law No. 569-2013 - Refusal or neglect of the City of Toronto to make a decision

Purpose: To permit an 8 storey mixed-use residential building with ground floor retail

Property Address/Description: 1521 Queen Street West

Municipality: City of Toronto

Municipality File No.: 19247355 STE 04 0Z

OLT Case No.: OLT-22-002282

Legacy Case No.: PL200567

OLT Lead Case No.: OLT-22-002282

Legacy Lead Case No. PL200567

OLT Case Name: BSAR (Queen) LP v. Toronto (City)

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

Applicant and Appellant: BSAR (Queen) LP

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

Purpose: To permit an 8 storey mixed-use residential building with ground floor retail

Property Address/Description: 1521 Queen Street West

Municipality: City of Toronto

Municipality File No.: 19247355 STE 04 0Z

OLT Case No.: OLT-22-002284

Legacy Case No.: PL200568

OLT Lead Case No.: OLT-22-002282

Legacy Lead Case No.: PL200567

BEFORE:

G.C.P BISHOP Friday, the 12th ASSOCIATE CHAIR day of August, 2022

THESE MATTERS, in respect of the lands at 1521 Queen Street West in the City of Toronto, having come for public hearings on May 17, 2022 before the Ontario Land Tribunal (the "Tribunal") and the Tribunal having issued a Decision and Interim Order on June 3, 2022 allowing the Applicant/Appellant’s appeals of the request to amend the City of Toronto Official Plan and application to amend City of Toronto Zoning By-law No. 569-2013 and City of Toronto Zoning By-law No. 438-86; and

THE TRIBUNAL HAVING BEEN ADVISED by the Parties on August 10, 2022 that these above-noted conditions have been fully satisfied or otherwise addressed to the satisfaction of the Parties and that the City and the Applicant and Appellant are thus jointly requesting that the Tribunal proceed to issue its Final Order on that basis;

AND THE TRIBUNAL having received, considered and determined the request for the Final Order on Thursday, the 11th day of August, 2022;

AND THE TRIBUNAL having received confirmation from the Appellant and the City of Toronto that the provisions in City of Toronto By-law 569-2013 applicable to the Subject Property are in force and that as per Article 1.5.6 of City of Toronto By-law 569-2013, By-law 569-2013 supersedes former municipal zoning by-laws, including City of Toronto Zoning By-law 438-86, where it applies;

AND THE TRIBUNAL BEING SATISFIED that the prior conditions to the Final Orders previously imposed by the Tribunal, upon the consent of the parties, have been satisfied or will now be appropriately addressed and that it is accordingly appropriate that the Tribunal issue its Final Order amending the identified Zoning By-laws through the revised instruments now submitted for final approval upon the joint request of the City and the Applicant and Appellant;

NOW THEREFORE

THE TRIBUNAL ORDERS that the Appeals are allowed in part and:

1. Zoning By-law No. 569-2013 of the City of Toronto is amended in accordance with the zoning by-law amendment attached hereto as Attachment "A"; and

THE TRIBUNAL authorizes the municipal clerk to format, as may be necessary, and assign a number to these by-laws for record keeping purposes.

THE TRIBUNAL ORDERS THAT, pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, notwithstanding the eventual date of the formal issuance of this Order, it shall be, and was, effective as of Thursday, August 11, 2022 which is the date that the Tribunal received, considered and determined the request for the Final Order in this proceeding.

“Euken Lui”

EUKEN LUI

REGISTRAR

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 A

Authority: Ontario Land Tribunal Decision and Order issued on June 3, 2022 in File OLT-22-002282

CITY OF TORONTO

BY-LAW -2022 (OLT)

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2021 as 1521 Queen Street West.

Whereas the Ontario Land Tribunal, in its Decision and Order issued on June 3, 2022, in file OLT-22-002282, 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 1521 Queen Street West; 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 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, 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 CR 2.5 (c1.0; r2.0) SS2 (x2609) to a zone label of CR 2.5 (c1.0; r2.0) SS2 (x788) as shown on Diagram 2 attached to this By-law.

4. Zoning By-law 569-2013, as amended, is further amended by adding Article 900.11.10 Exception Number 788so that it reads:

(788) Exception CR (788)

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 1521 Queen Street West, if the requirements of By-law [Clerks to insert By-law ##] are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to (O) below:

(B) Despite Regulations 40.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum of 96.90 metres and the elevation of the highest point of the building or structure;

(C) Despite Regulations 40.10.40.10(2) and (7), the permitted maximum height of a building or structure is the number in metres following the letters "HT" and the permitted maximum number of storeys in a building is the number following the letters "ST" as shown on Diagram 3 of By-law [Clerks to insert By-law ##]; and

(i) For the purposes of this exception, a mechanical penthouse located above the uppermost storey of the building, which is limited in use to mechanical, electrical, heating, cooling and other areas dedicated to the functional operation of the building, as well as a maximum of 250 square metres of gross floor area comprising indoor amenity space and access to outdoor amenity space, does not constitute a storey;

(D) Despite Regulation 40.10.40.1(1), residential lobby access and mail room may be located at the same storey as non-residential use portions of the building;

(E) Despite Regulations 40.5.40.10(3) to (8) and (C) above, the following equipment and structures may project beyond the permitted maximum height shown on Diagram 3 of By-law [Clerks to insert By-law ##]:

(i) equipment used for the functional operation of the building including electrical, utility, enclosed stairwells, roof access, maintenance equipment storage, light fixtures, chimneys, and vents, by a maximum of 2 metres;

(ii) elevator shafts /overrun, by a maximum of 3 metres;

(iii) structures that enclose, screen or cover the equipment, structures and parts of a building listed in (i) and (ii) above, inclusive of a mechanical penthouse, by a maximum of 2 metres;

(iv) architectural features, parapets, roof drainage, insulation and elements and structures associated with a roof, green roof, and terrace by a maximum of 2 metres;

(v) building maintenance units and window washing equipment, by a maximum of 2 metres;

(vi) planters, landscaping features, guard rails, and divider screens on a balcony and/or terrace, by a maximum of 2 metres; and

(vii) trellises, pergolas, and unenclosed structures providing safety or wind protection to rooftop amenity space, by a maximum of 3 metres;

(F) Despite Regulation 40.10.40.40(1), the permitted maximum gross floor area of all buildings and structures on the lot is 6,900 square metres, of which:

(i) the permitted maximum gross floor area for residential uses is 6,700 square metres;

(ii) the permitted maximum gross floor area for non-residential uses is 400 square metres;

(iii) the required minimum gross floor area for non-residential uses is 200 square metres;

(G) Despite Regulation 40.10.40.50(1) and (2), a building with 20 or more dwelling units must provide amenity space on the lot at the following rate:

(i) at least 2.0 square metres for each dwelling unit as indoor amenity space;

(ii) at least 2.0 square metres for reach dwelling unit as outdoor amenity space;

(H) Despite Regulation 40.10.40.70(2), the required minimum building setbacks are as shown in metres on Diagram 3 of By-law [Clerks to insert By-law ##];

(I) Despite Clause 40.10.40.60 and (H) above, the following elements may encroach into the required minimum building setbacks as follows:

(i) balconies, by a maximum of 1.5 metres;

(ii) canopies and awnings, by a maximum of 1.5 metres;

(iii) access ramps and elevating devices, by a maximum of 1.5 metres;

(iv) cladding added to the exterior surface of the main wall of a building, by a maximum of 0.5 metres;

(v) architectural features, such as a pilaster, decorative column, cornice, sill, or belt course, by a maximum of 0.5 metres;

(vi) window projections, including bay windows and box windows, by a maximum of 0.5 metres;

(vii) eaves, by a maximum of 0.5 metres;

(viii) air conditioners, satellite dishes, antennae, vents, and pipes, by a maximum of 1.0 metres; and,

(ix) retaining walls located in the rear yard setback;

(J) Clause 40.10.50.10(3), with regards to landscaping, does not apply;

(K) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, no parking spaces are required for residential occupants, residential visitors, or non-residential uses

(L) Despite (K) above a minimum of two (2) "car-share parking spaces" must be provided, subject to the following:

(i) For the purpose of this exception, "car-share" means the practice whereby a number of people share the use of one or more motor vehicles and such "car-share" motor vehicles are made available to at least the occupants of the building for short-term rental, including hourly rental; and

(ii) For the purpose of this exception, "car-share parking space" means a parking space exclusively reserved and signed for a vehicle used only for "car-share" purposes;

(M) Despite Regulation 40.10.80.20(1), a parking space may be located 0 metres from a lot line;

(N) Despite Regulation 220.5.10.1, one Type “G” loading space must be provided;

(O) Despite Regulations 230.5.10.1, bicycle parking spaces must be provided in accordance with the following minimum rates:

(i) 0.1 "short-term" bicycle parking spaces for each dwelling unit; and

(ii) 0.9 "long-term" bicycle parking spaces for each dwelling unit;

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

5. Despite any severance, partition or division of the lands, the provisions of this By-law shall apply as if no severance, partition or division occurred.

6. Section 37 Requirements:

(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 attached to this By-law in return for the provision by the owner, at the owner's expense of the facilities, services and matters set out in Schedule A attached to this By-law 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 attached to 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 satisfaction of the same; and

(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 and Order issued on June 3, 2022 in File OLT-22-002282

SCHEDULE A

Section 37 Requirements

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 and register same in priority, to the satisfaction of the City Solicitor, whereby the owner agrees to secure the facilities, services and matters set out below which are required to be provided to the City at the owner's expense as follows:

1. A cash contribution of one million dollars ($1,000,000.00) to the City's Capital Revolving Reserve Fund for Affordable Housing, to be paid prior to the earlier of issuance of notice of approval conditions for site plan approval for the development, issuance of the first building permit for the construction of the development, or 18 months from the date of Council endorsement of the Settlement Offer, to be allocated towards the City’s Multi-Unit Residential Acquisition Program to facilitate the acquisition of affordable housing in the Parkdale neighbourhood;

2. The cash contribution referred to in Clause 1 above shall be indexed upwardly in accordance with the Statistics Canada Residential Building Construction Price Index for the Toronto Census Metropolitan Area, reported quarterly by Statistics Canada in Building Construction Price Indexes Table 18-10-0135-01, or its successor, calculated from the date of the Agreement to the date of payment;

3. A cash contribution of two-hundred thousand dollars ($200,000.00) for tenant compensation and reasonable administration costs to be allocated to the 2022 Approved Operating Budget for Shelter, Support and Housing Administration and to be paid upon the execution and registration of the Section 37 Agreement and upon the issuance of a Final Order by the Tribunal approving the development, and administered in accordance with an agreement between the City and the Parkdale Neighbourhood Land Trust;

4. Any remaining unused and unallocated funds referred to in Clause 3 above shall be allocated towards the City’s Multi-Unit Residential Acquisition Program to facilitate the acquisition of affordable housing in the Parkdale neighbourhood;

5. The following transportation demand management measures to support the development:

(A) a payment of fifty thousand dollars ($50,000.00) payable to the City prior to first above grade building permit to provide a new bike-share station on the Site or the surrounding area;

(B) one car-share membership per unit, offered in the first five years of occupancy;

(C) one bike-share membership per unit, offered in the first five years of occupancy;

(D) One pre-loaded Presto card ($150.00 value) per unit, offered in the first five years of occupancy; and

(E) A minimum of one bike repair station provided on the Site;

6. The owner shall provide and maintain the residential dwelling units on the Site, once constructed, as rental dwelling units, together with the associated facilities and amenities, for a period of at least twenty (20) years beginning from the date of first residential occupancy with no applications for demolition or conversion from residential rental use made during such twenty (20) year period, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor; and

7. The owner shall at the time of and through the Site Plan Approval process for the proposed development secure improvements to the architecture and materiality of the building.