2245883 Ontario Inc. v. City of Toronto, 2022 CanLII 73920

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 9, 2022

CASE NO.: OLT-22-002461 (Formerly PL180617)

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

Applicant(s)/Appellant(s): 2245883 Ontario Inc.

Subject: Application to amend Zoning By-law No. 438-86 and 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: CR T5.0 C3.0 R3.0 (south portion) AND R4A Zl.O (north portion)

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit 44-storey mixed-use building

Property Address/Description: 808 Mount Pleasant Rd

Municipality: City of Toronto

Municipal File No.: 17 261931 STE 22 OZ

OLT Case No.: OLT-22-002461

OLT Legacy Case No.: PL180617

OLT File No.: OLT-22-002461

OLT Case Name: 2245883 Ontario Inc. v. City of Toronto

BEFORE:

S. TOUASAW, MEMBER

Tuesday, the 9th Day of August, 2022

THESE MATTERS, in respect of the lands at 808 Mount Pleasant Road and 247-251 Roehampton Avenue in the City of Toronto (the "Lands"), having come for public hearings on May 24, 2022 before the Ontario Land Tribunal (the "Tribunal") and the Tribunal having heard expert land use planning evidence in the matter resulting in the Tribunal's decision and interim order issued on May 31, 2022 (the "Interim Order") by which the Tribunal allowed the Applicant/Appellant’s appeal in part and approved, in principle, the draft zoning by-law amendments to City of Toronto Zoning By-law No. 569-2013 and the former City of Toronto Zoning By-law No. 438-86 which are attached as Exhibit M to the affidavit of Robert A. Dragicevic, sworn May 13, 2022, and filed as Exhibit 4 to the proceedings; and

THE TRIBUNAL having withheld its Final Order amending the City of Toronto Zoning By-law No. 569-2013 and the former City of Toronto Zoning By-law No. 438-86 pending receipt of written confirmation from the City Solicitor for the City of Toronto (the "City Solicitor") that the matters referred to in paragraph 14 of the Interim Order have been satisfied; and

THE TRIBUNAL having been advised by the City Solicitor in writing that the final form of the zoning by-law amendment to City of Toronto Zoning By-law No. 569-2013 (the "Zoning By-law Amendment") is satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning for the City of Toronto (the "Chief Planner") and the matters and conditions of the Interim Order as set out in paragraph 14(a) of the Interim Order have been satisfied; and

THE TRIBUNAL having been advised by the City Solicitor in writing that the requirements for the issuance of the Tribunal's Final Order as set out in paragraphs 14(b), 14(c), 14(d), and 14(e) of the Interim Order have not been satisfied and are not likely to be satisfied prior to Toronto City Council's passing of a Community Benefit Charges By-law on August 15, 2022 and are now instead to be secured in Schedule A to the zoning by-law amendment to City of Toronto Zoning By-law No. 569-2013 as a facility, service, or matter to be provided prior to the issuance of the first applicable permit for the Lands to be issued under the Building Code Act, 1992, S.O. 1992, c. 23, as more particularly set out in said Attachment 1; and

THE TRIBUNAL hereby confirms that it is satisfied that the manner in which the prior conditions to the Final Order previously imposed by the Tribunal will instead now be appropriately addressed through the inclusion of clauses within Attachment 1 to the final form of the Zoning By-law Amendment, and that it is accordingly appropriate that the Tribunal issue its Final Order amending the City of Toronto Zoning By-law No. 569-2013 through the revised instrument now submitted for final approval upon the request of the City; and

THE TRIBUNAL having been advised by the City Solicitor in writing that the Chief Planner has determined a zoning by-law amendment to City of Toronto Zoning By-law No. 438-86 is not necessary for the development of the Lands; and

PURSUANT TO RULE 24.3 OF THE TRIBUNAL'S RULES this Final Order is effective on August 11, 2022;

THE TRIBUNAL HEREBY ORDERS that:

1. The requirement at paragraph 14(b) of the Interim Order is waived; and

2. The requirement at paragraph 14(c) of the Interim Order is waived; and

3. The requirement at paragraph 14(d) of the Interim Order is waived; and

4. The requirement at paragraph 14(e) of the Interim Order is waived; and

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

6. The City Clerk is authorized to assign a number to the zoning by-law amendments attached hereto as Attachment 1 for record keeping purposes and to format said zoning by-law amendment, as necessary.

THE TRIBUNAL may be spoken to in the event any matter arises in connection with the implementation of this Final Order.

“S. Tousaw”

MEMBER

ATTACHMENT 1

CITY OF TORONTO

BY-LAW XXX-2022

To amend Zoning By-law No. 569-2013, as amended, with respect to part of the lands municipally known in the year 2021 as 808 Mount Pleasant Road, and the lands municipally known in the year 2021 as 247-251 Roehampton Avenue.

Whereas the Ontario Land Tribunal Decision issued May 31, 2022 and Ontario Land Tribunal Order issued ___ in Tribunal Case No. OLT-22-002461 (formerly OLT Case No. PL180617), upon hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, deems it advisable to amend By-law 569-2013, as amended, with respect to a portion of the lands municipally known in the year 2021 as 808 Mount Pleasant Road, and the lands municipally known in the year 2021 as 247-251 Roehampton Avenue; 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 No. 569-2013, as amended, is permitted in return for the provision of the facilities, services and matters set out in this By-law which will be secured by one or more agreements between the owner of the land and the City of Toronto;

The Ontario Land Tribunal enacts:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1, attached 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 subject to this by-law, from a zone label of CR 5.0 (c3.0; r3.0) SS2 (x1218) and R (d1.0) (x941) to a zone label of CR 5.0 (c3.0; r3.0) SS2 (x777) and from a zone label of R (d1.0) to O, as shown on Diagram 2, attached to and forming part of this By-law;

4. Zoning By-law 569-2013, as amended, is further amended by adding Article 900.11.10 Exception Number 777, so that it reads:

(777) Exception CR 777

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 808 Mount Pleasant Road and 247-251 Roehampton Avenue, if the requirements in Section 4 and Schedule A of By-law [Clerks to supply By-law Number] are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to (T) below;

(B) Despite Regulation 40.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum elevation of 158.50 metres and the elevation of the highest point of the building or structure;

(C) Despite Regulation 40.10.40.1(1), both residential and non-residential use portions of the building may be located on the first storey of the building;

(D) Despite Regulation 40.10.40.1(2)(A), for any non-residential use the floor level of the first storey must be within 0.8 metres of the ground measured at the lot line abutting the street directly opposite each pedestrian entrance;

(E) Despite Regulation 40.10.40.10(2), the permitted maximum height of any part of a building or structure is the numerical value, in metres, following the letters “HT” shown on Diagram 3 of By-law [Clerks to supply By-law Number];

(F) Despite Regulations 40.5.40.10(3) to (8) and (E) 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) a parapet, roof drainage components, or thermal and waterproofing assembly located at each of the roof levels of the building, to a maximum of 1.8 metres;

(ii) safety railings, fences and guardrails at each of the roof levels of the building, to a maximum of 2.0 metres;

(iii) structures on the roof of any part of the building used for outside or open air recreation, green roof elements, planters, wind mitigation elements, noise mitigation elements, screens, trellises, landscape features, telecommunications equipment and antennae, and partitions dividing outdoor recreation areas, to a maximum of 3.0 metres; and

(iv) mechanical penthouses, equipment used for the functional operation of the building, such as electrical, utility, mechanical and ventilation equipment, stairs, stair enclosures, window washing equipment, lightning rods, exhaust flues, vents, ventilating equipment, chimney stack, and garbage chute overruns, and structures that enclose, screen or cover the equipment, structures and parts of a building listed in this section, to a maximum of 5.0 metres;

(v) building elements on top of a building element or structure listed in (F)(iv) above, including a parapet, chimneys, pipes, vents, cooling towers, cooling tower perimeter walls, elevator overruns, roof drainage components, and thermal and waterproofing assembly, to a maximum of 2.5 metres above the mechanical penthouse;

(G) Despite (L) below , no portion of a building or structure is permitted to be located between established grade and an elevation of 165.5 metres Canadian Geodetic Datum within the area identified as “Area Subject to 4(G) of this By-law”;

(H) Despite Regulation 40.10.40.10(5), the required minimum height of the first storey, as measured between the floor of the first storey and the ceiling of the first storey, is 3.8 metres, and:

(i) for the purpose of this exception, a mezzanine, partial storey, or mechanical penthouse space does not constitute a storey;

(I) Despite Regulation 40.10.40.40(1) the permitted maximum gross floor area is 34,000 square metres of which;

(i) the permitted maximum gross floor area for residential uses is 32,900 square metres;

(ii) the permitted maximum gross floor area for non-residential uses is 1,100 square metres;

(iii) the required minimum gross floor area for non-residential uses is 500 square metres;

(J) Dwelling Units on the lot must include:

i) a minimum of 15 per cent of the total number of units as 2-bedroom units;

ii) a minimum of 10 per cent of the total number of units as 3-bedroom units;

iii) an additional 15 percent of the total number of units will be a combination of 2-bedroom and 3-bedroom units, or units that can be converted to 2-bedroom or 3-bedroom units through the use of adaptable design measures

(K) Despite Regulation 40.10.40.50 (1), a minimum of 430 square metres of outdoor amenity space and a minimum of 1,285 square metres of indoor amenity space must be provided on the lot;

(L) Despite Regulations 40.5.40.70(1), 40.10.40.70(2) and 40.10.40.80(2) the required minimum building setbacks and minimum required above-ground separation distances between main walls of buildings or structures with or without windows are as shown on Diagram 3 of By-law [Clerks to supply By-law Number];

(M) Despite Clause 40.10.40.60 and (L) above, the following elements may encroach into the required minimum building setbacks:

(i) lighting fixtures, canopies architectural features, structural/non-structural architectural columns/piers, window washing equipment, parapets, parapet flashing, roof and terrace scuppers, roof overhang, gutter, downspout, trellises, window sills, guardrails, balustrades, railings, wind mitigation and acoustic screens and features, planters, stairs, wheel chair ramps, mechanical exhaust and intake components, gas meters, underground garage ramps and their associated structures and elements, retaining walls, fences, Siamese connections and privacy screens, to a maximum of 2.0 metres; and

(ii) balconies may encroach to a maximum of 2.5 metres;

(N) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, parking spaces must be provided in accordance with the following:

(i) a minimum of 0.17 for each dwelling unit, and

(ii) No parking spaces are required for all other uses on the lot;

(O) Despite Regulation 200.5.10.1(1), "car-share parking spaces" may replace parking spaces otherwise required for residential occupants, subject to the following:

(i) a reduction of 4 resident occupant parking spaces will be permitted for each "car-share parking space" provided that the maximum reduction permitted be capped by the application of the following formula:

• 4 multiplied by (total number of dwelling units divided by 60), rounded down to the nearest whole number;

(ii) 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

(iii) 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;

(P) Despite Regulation 200.5.1.10(2), a maximum of 10% of the required parking spaces may have minimum dimensions of:

(i) length of 5.1 metres;

(ii) width of 2.4 metres;

(iii) vertical clearance of 1.7 metres; and

(iv) the side of the parking space may be obstructed;

(Q) Despite Regulation 200.15.1(1), accessible parking spaces must comply with the following:

(i) accessible parking spaces must be located on the same level as a barrier free passenger elevator that provides access to the first storey of the building;

(ii) an accessible parking space must have the following minimum dimensions:

(A) length of 5.6 metres;

(B) width of 3.4 metres; and

(C) vertical clearance of 2.1 metres;

(R) Despite Clause 220.5.10.1… a minimum of one (1) Type "G" loading space and one (1) Type "C" loading space must be provided on the lot;

(S) Despite Regulation 230.5.1.10 (9) a required bicycle parking space may be located on any storey of a building or structure including all levels of the building or structure below established grade;

(T) Despite Regulation 40.10.50.10 (3), a 1.5 metre landscape strip abutting a lot in the Residential Zone is not required;

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

5. Despite any existing or future severance, partition or division of the lands subject to this By-law which are shown on Diagram 1, the provisions of this By-law apply to whole of the lands as if no severance, partition or division occurred.

6. 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 Diagram 2 of By-law [Clerks to supply By-law Number] 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 to be 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 By-law [Clerks to supply By-law Number] 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 By-law [Clerks to supply By-law Number] 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 Case No. OLT-22-002461 (formerly OLT Case No. PL180617)

SCHEDULE A

Section 37 Provisions

Prior to the issuance of the first permit under the Building Code Act, 1992 in respect of the lands shown on Diagram 1 attached to this By-law, the owner shall enter into an agreement under 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 came into force, 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. Prior to the earlier of the registration of the first condominium in respect of any part of the lands and the first occupancy of any part of the development, the owner shall design, construct, finish, commission, and convey to the City no less than 5,000 square feet of space within the development, being the most northern non-residential unit adjacent to the on-site parkland dedication and the on-site parkland over-dedication (said dedication and over-dedication described in paragraphs 4 and 5 below) for the City's EarlyON program (the "EarlyON Space"), all at no cost to the City and in accordance with the terms and conditions of an agreement entered into between the owner and the City 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 came into force, to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Children's Services;

2. Prior to the issuance of the first above grade building permit for any part of the lands, the owner shall prepare and submit a final design submission for the EarlyON Space to the City, to the satisfaction of the Executive Director, Corporate Real Estate Management, the General Manager, Children's Services, and the Chief Planner and Executive Director, City Planning;

3. Prior to the earlier of the first condominium registration in respect of any part of the lands and the first residential use of any part of the development, but in any event prior to the conveyance of the EarlyON Space to the City, the owner shall enter into and register on title an Easement and Cost Sharing Agreement, for nominal consideration and at no cost to the City, that is in a form satisfactory to the City Solicitor, to address and/or provide for the integrated support, use, operation, maintenance, repair, replacement and reconstruction of certain shared facilities, and the sharing of costs in respect thereof, or portions of the lands to be owned by the City and the owner as they pertain to the EarlyON Space;

4. Prior to the issuance of the first permit under the Building Code Act, 1992 for any part of the lands, save and except for a demolition permit, the owner shall convey to the City the fee simple interest in a part of the lands with an area of no less than 47 square metres as an over-dedication of public parkland which is adjacent to the parkland dedication as described in paragraph 5 below, at no cost to the City and subject to the owner transferring the over-dedication lands to the City free and clear, above and below grade, of all easements, encumbrances, and encroachments, in an acceptable environmental condition, to the satisfaction of the General Manager, Parks, Forestry and Recreation in accordance with all applicable City policies, and subject to the authority granted to the General Manager, Parks, Forestry and Recreation in respect of tiebacks;

5. Prior to the issuance of the first permit under the Building Code Act, 1992 for any part of the lands, save and except for a demolition permit, the owner shall convey to the City the fee simple interest in a part of the lands municipally known as 247 Roehampton Avenue, 249 Roehampton Avenue, and 251 Roehampton Avenue having an area no less than 269.98 square metres, for the purpose of a parkland dedication pursuant to Section 42 of the Planning Act, at no cost to the City, free and clear, above and below grade, of all easements, encumbrances, and encroachments, in an acceptable environmental condition in accordance with all applicable City policies, and subject to the authority granted to the General Manager, Parks, Forestry and Recreation in respect of tiebacks, to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor;

6. Prior to the issuance of the first permit under the Building Code Act, 1992 for any part of the lands, the owner shall submit specification and landscape plans to the City showing the scope and detail of the base park improvements to the lands referred to in paragraphs 4 and 5 above, together with supporting materials and documentation as may be required, to the satisfaction of the General Manager, Parks, Forestry, and Recreation;

7. Prior to the issuance of first permit under the Building Code Act, 1992 for any part of the lands, the Owner shall provide the City with financial security in the amount of 120% of the value of the base park improvements to the lands referred to in paragraphs 4 and 5 above, to the satisfaction of the General Manager, Parks, Forestry, and Recreation;

8. Prior to the issuance of the first above grade building permit for any part of the lands, the owner shall demonstrate to the City that the limiting distance requirements of the Ontario Building Code have been satisfied in respect of the lands referred to in paragraphs 4 and 5 above and the building to be constructed within the lands, to the satisfaction of General Manager, Parks, Forestry, and Recreation;

9. The owner shall provide no less than 15 percent of the total number of residential units as 2-bedroom units, no less than 10 percent of the total number of residential units as 3-bedroom units, and no less than 15 percent of the total number of residential units as convertible to 2-or-3-bedroom units, to the satisfaction of the Chief Planner and Executive Director, City Planning as a part of the site plan control application for the development;

10. The owner shall construct and maintain the development in accordance with the Tier 1 performance measures of the Toronto Green Standard applicable at the time the complete site plan control application for the lands was submitted to the City;

11. The owner shall provide the following Transportation Demand Management measures to the satisfaction of the Chief Planner and Executive Director, City Planning:

(i) one (1) car-share and/or bike-share membership per unit, offered in the first year of occupancy;

(ii) one (1) pre-loaded Presto card ($100 value) per unit offered in the first year of occupancy; and

(iii) a minimum of two (2) bike repair stations provided on-site, with the location of said repair stations to be finalized pursuant to the site plan control application process, to the satisfaction of the Chief Planner and Executive Director, City Planning; and

(iv) Pursuant to the site plan control application process for the development, the owner shall review the potential to include 1 to 2 publicly accessible car-share spaces within the development, to the satisfaction of the Chief Planner and Executive Director;

12. Prior to final site plan approval for the lands, the owner shall prepare all required documentation and convey a road-widening (right-of-way) of Mount Pleasant Road to the City along the frontage of a portion of the site abutting Mount Pleasant Road with a width of no less than 2.0 metres, as shown on Diagram 1 of this By-law, at no cost to the City and free and clear of all physical encumbrances above and below grade and of all title encumbrances and in accordance with all City policies respecting the conveyance of potentially environmentally contaminated lands, to be subject to a right of way in favour of the owner until such time as the road-widening (right-of-way) is dedicated as public highway, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the City Solicitor;

13. Prior to final site plan approval for the lands, the owner shall prepare all required documentation and convey a pedestrian clearway easement to the City, with all rights of support and at no cost to the City and in priority to all title encumbrances, which commences at the south property line of the site with variable width not exceeding approximately 0.40 metres and a variable length not exceeding approximately 8 metres along the Mount Pleasant Road frontage of the lands, with the final area and configuration of the pedestrian clearway easement area to be determined through the site plan control application process, to the satisfaction of the Chief Engineering and Executive Director, Engineering and Construction Services and the City Solicitor;

14. Prior to the earlier of final site plan approval for the lands and the issuance of the first permit for excavation or shoring work within any part of the lands, the owner shall submit the following materials to the City, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services:

(i) An updated Functional Servicing and Stormwater Management Report;

(ii) An updated Hydrogeological Report;

(iii) A completed Servicing Report Groundwater Summary Form; and

(iv) A completed Hydrogeological Review Summary Form;

(collectively, the "Engineering Reports");

15. Prior to the earlier of final site plan approval for the lands and the issuance of the first permit for excavation or shoring work within any part of the lands, the owner shall secure the design of and provide financially security for the construction of all improvements to municipal infrastructure recommended or required by the Engineering Reports, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water; and

16. Prior to the issuance of the first above grade building permit for any part of the lands, the owner shall construct and make operational all upgrades or required improvements to municipal infrastructure as identified in the Engineering Reports, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, save and except for upgrades or required improvements to accommodate groundwater discharge from the below grade construction within the lands in which case those matters shall be constructed and made operational by the owner prior to the issuance of the first permit for excavation or shoring work within the lands, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water.