Weston Road Limited Partnership v. Toronto (City), 2022 CanLII 73928

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 11, 2022

CASE NO.: OLT-22-002217

EFFECTIVE DATE: August 11, 2022

(Legacy Case No.: PL210256)

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

Applicant and Appellant: Weston Road Limited Partnership

Subject: Application to amend Zoning By-law No. 1-83 and Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: RM2 (Residential Multiple) by Zoning By-law No. 1-83 and RA (Residential Apartment) by Zoning By-law No. 569

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 38-storey mixed-use building

Property Address/Description: 1821 - 1823 and 1831 Weston Road

Municipality: City of Toronto

Municipality File No.: 19 254711 WET 05 OZ

OLT Case No.: OLT-22-002217

Legacy Case No.: PL210256

OLT Lead Case No.: OLT-22-002217

Legacy Lead Case No.: PL210256

OLT Case Name: Weston Road Limited Partnership v. Toronto (City)

BEFORE:

G.C.P. BISHOP ALTERNATE CHAIR Thursday, the 11th day of August, 2022

THIS MATTER, in respect of the lands in the City of Toronto at 1821-1823 and 1831 Weston Road (collectively, the “Subject Property”), having been heard at a public hearing on April 4, 2022, and the Ontario Land Tribunal (the “Tribunal”) having issued its interim decision on June 10, 2022 (the “Decision”) that the appeal under subsection 34(11) of the Planning Act (the “Appeal”) in Tribunal Case No. OLT-22-002217 should be allowed in part, and approving the proposed zoning by-law amendment in principle;

AND THE TRIBUNAL having withheld its final order, pending the satisfaction of conditions, including the receipt of the final form of the zoning by-law amendment in respect of the Subject Property;

AND THE TRIBUNAL now having received confirmation from the appellant and the City of Toronto of the fulfillment of the conditions of the Decision, including confirmation of the final form of the zoning by-law amendment, satisfactory to the City of Toronto, attached hereto as Schedule “A”;

THE TRIBUNAL ORDERS that the Appeal is allowed in part, and that Zoning By-law No. 569-2013 of the City of Toronto, as amended, is hereby amended in the manner set out in Schedule “A” to this Order;

AND PURSUANT TO RULE 24.3 OF THE TRIBUNAL’S RULES this Order is effective on August 11, 2022.

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

“Euken Lui”

EUKEN LUI ACTING 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.

SCHEDULE A

Authority: Ontario Land Tribunal Decision issued on June 10, 2022 and Ontario Land Tribunal Order issued on August 11, 2022 in Tribunal File OLT-22-002217 (Legacy Case PL210256)

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 1821, 1823 and 1831 Weston Road.

Whereas the Ontario Land Tribunal pursuant to its Decision issued on June 10, 2022 and Ontario Land Tribunal Order issued on August 11, 2022 in file OLT-22-002217 (Legacy Case PL210256), 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, for the City of Toronto with respect to lands municipally known as in the year 2021 as 1821, 1823 and 1831 Weston Road; and

Whereas Council of the City of Toronto has the authority to pursuant to Section 34 of the Planning Act, R.S.O. 1990, c. P. 13, as amended, to pass this By-law; and

Whereas Council of the City of Toronto has provided adequate information to the public and has held at least one public meeting in accordance with the Planning Act; and

Whereas pursuant to Section 39 of the Planning Act, as amended, the Council of a Municipality may, in a By-law passed under Section 34 of the Planning Act, authorize the temporary use of land, buildings or structures for any purpose set out therein that is otherwise prohibited in the By-law; and

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

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

Whereas 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;

Therefore, pursuant to the Order of the Ontario Land Tribunal, City of Toronto By-law 569-2013, as amended, is further amended 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 subject to this By-law from a zone label of RA (u489) (x423) to CR 2.5 (c2.5; r2.5) SS2 (x786), 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 786 so that it reads:

(786) Exception CR 786

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 1821, 1823 and 1831 Weston Road, if the requirements of By-law ## are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to (Y) 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 126.7 metres and elevation of the highest point of the building or structure.

(C) Despite Regulation 40.10.40.10(2), the permitted maximum height of a building or structure is the number following the HT symbol in metres as shown on Diagram 3 of By-law ##.

(D) Despite Regulations 40.5.40.10(3) to (8) and (C) above, the following equipment and structures may project beyond the permitted maximum height of a building:

(i) equipment used for the functional operation of the building including electrical, utility, mechanical and ventilation equipment, enclosed stairwells, roof access, maintenance equipment storage, elevator shafts, chimneys, and vents may project above the height limits by a maximum of 7.0 metres;

(ii) structures that enclose, screen or cover the equipment, structures and parts of a building listed in (i) above, inclusive of a mechanical penthouse, by a maximum of 7.0 metres;

(iii) architectural features, parapets, and elements and structures associated with a green roof by a maximum of 2.0 metres;

(iv) planters, landscaping features, guard rails, and divider screens on a balcony and/or terrace by a maximum of 2.5 metres;

(v) trellises, pergolas, and unenclosed structures providing safety or wind protection to rooftop amenity space by a maximum of 3.5 metres;

(vi) structures and elements related to outdoor flooring and roofing assembly features by a maximum of 0.9 metres; and

(vii) railings, guard rails, parapets, terrace walls, patios, planters, balustrades, bollards, retaining walls, wheelchair ramps and ornamental or architectural features by a maximum of 1.5 metres.

(E) 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 4.0 metres, and:

(i) for the purpose of this exception, any portion of a building that is located between Canadian Geodetic Datum elevations of 126.70 metres and 133.70 metres will be considered as one storey; and

(ii) for the purpose of this exception, a mezzanine does not constitute a storey.

(F) Despite Regulation 40.10.40.40(1), the permitted maximum gross floor area is 35,550 square metres, of which:

(i) the permitted maximum gross floor area for residential uses is 35,290 square metres; and

(ii) the permitted minimum gross floor area for non-residential uses is 200 square metres.

(G) Dwelling units must be provided as follows:

(i) a minimum of 10 percent of the total number of dwelling units on the lot must contain a minimum of three bedrooms;

(ii) a minimum of 25 percent of the total number of dwellings units on the lot must contain a minimum of two or three bedrooms; and

(iii) in the event that the calculation of the number of required dwelling units with two or three bedrooms results in a number with a fraction, the number shall be rounded down to the nearest whole number.

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

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

(ii) at least 2.0 square metres of outdoor amenity space for each dwelling unit of which 40 square metres must be in a location adjoining or directly accessible to the indoor amenity space.

(I) Despite Regulation 40.10.40.70(2), the required minimum building setbacks are as shown in metres on Diagram 3 of By-law ##.

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

(i) roof overhangs, balconies, terraces, balustrades, trellises, canopies, awnings chimneys, vents, pipes cornices, eaves, railings, guardrails, parapets, landscape and green roof elements, planters, lighting fixtures, architectural and ornamental features, public art features, window washing equipment, decorative privacy screens, exterior stairs, underground garage ramps, vents, wheelchair ramps, wind mitigation features and windowsills, to a maximum of 3.8 metres.

(K) Despite Clause (J) above, above a height of 27.0 metres, balconies may not be closer to the side lot lines than 10.0 metres.

(L) Despite Regulation 40.10.50.10(2), no fence is required along the side lot line abutting a lot in the Residential Apartment Zone category.

(M) Despite Regulation 40.10.50.10(3), no soft landscaping is required along the side lot line abutting a lot in the Residential Apartment Zone category.

(N) Regulations 40.5.40.10(5) and 40.5.40.10(8), with respect to the functional operation of a building, do not apply.

(O) 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 0.35 residential occupant parking spaces for each dwelling unit;

(ii) a minimum of 0.04 parking spaces for each dwelling unit for the shared use of residential visitors and non-residential uses; and

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

(a) 4 multiplied by the total number of dwelling units divided by 60, and rounded down to the nearest whole number.

(P) For the purposes of (M)(iii) above:

(i) Car-share means the practice where a number of people share the use of one or more cars that are owned by a profit or non-profit car-sharing organization and where such an organization may require that use of cars be reserved in advance, charge fees based on time and/or kilometres driven, and set membership requirements of the car-sharing organization, including the payment of a membership fee that may or may not be refundable; and

(ii) Car-share parking space means a parking space that is reserved and actively used for car-sharing.

(Q) Despite Regulation 200.5.1.10(2), a maximum of five (5) percent of the total parking spaces provided on the lot may have a minimum width of 2.6 metres, despite being obstructed on one side, as described in Regulation 200.5.1.10(2)(D).

(R) Despite Regulation 200.5.1.10(2)(D), equipment for the charging of one electric vehicle is permitted within a parking space.

(S) Despite Regulations 200.15.1(1), 200.15.1(3), and 200.15.10(1)(C), accessible parking spaces must comply with the following:

(i) a minimum of six (6) accessible parking spaces must be provided;

(ii) accessible parking spaces 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;

(iii) the entire length of an accessible parking space must be adjacent to a 1.5 metre wide accessible barrier free aisle or path.

(T) Despite Regulation 200.15.1(4), an accessible parking space is not required to be the closest parking space to:

(i) a barrier free entrance to a building;

(ii) a barrier free passenger elevator that provides access to the first storey of the building; and

(iii) the shortest route from the required entrances in (i) and (ii) above.

(U) Despite Regulations 230.5.10.1(1)(3) and (5) and Table 230.5.10.1(1), bicycle parking spaces must be provided in accordance with the following minimum rates:

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

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

(iii) No bicycle parking spaces are required for non-residential uses on the lot.

(V) Despite Regulation 230.5.1.10(4), stacked bicycle parking spaces provided in a horizontal orientation may have the following minimum dimensions:

(i) a minimum length of 1.8 metres;

(ii) a minimum width of 0.4 metres; and

(iii) a minimum vertical clearance for each bicycle parking space of 1.2 metres.

(W) Despite Regulation 230.5.1.10(9), long-term bicycle parking spaces are permitted to be located on all levels of the building and parking garage both above and below a Canadian Geodetic Datum elevation of 126.7 metres.

(X) Despite Regulation 230.5.1.10(10), required "short-term" bicycle parking spaces may be located in a stacked bicycle parking space.

(Y) Despite Regulation 220.5.10.1(2), one Type "G" loading space must be provided.

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. Temporary use(s):

(A) None of the provisions of By-law 569-2013, as amended, apply to prevent the erection and use of a sales, leasing or construction office on the lot for a period of not more than 3 years from the date this By-law comes into full force and effect.

7. Section 37 Provisions:

(A) Pursuant to Section 37 of the Planning Act, and subject to compliance with this By-law, the increase in height and density of the development is permitted beyond that otherwise permitted on the lands shown on Diagram 1 in return for the provision by the owner, at the owner's expense of the facilities, services and matters set out in Schedule A 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 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.

Pursuant to the Decision and Order of the Ontario Land Tribunal issued on June 10, 2022 and Ontario Land Tribunal Order issued on August 11, 2022 in Tribunal File OLT-22-002217 (Legacy Case PL210256).

SCHEDULE A

Section 37 Provisions

Prior to the issuance of any Building Permit, the owner shall enter into an agreement to the satisfaction of the City Solicitor 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 secure the community benefits below.

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:

1. Prior to issuance of first above-grade permit, the owner shall pay to the City a cash contribution of $1,600,000.00 (One Million, Six Hundred Thousand) (the "Cash Contribution") to the City to be allocated as follows:

A. $1,000,000.00 (One Million) paid into a capital reserve account designated the "Weston Village Revitalization Fund", with such funds to be used within the Weston Village Business Improvement Area (or adjacent areas on Weston Road) for capital improvements to the public realm, in consultation with a Weston Village Revitalization Committee of local residents and business owners appointed by City Council, and chaired by the local Ward Councillor, and in consultation with the local Ward Councillor;

B. $500,000.00 (Five Hundred Thousand) to the City of Toronto for capital improvements to local City of Toronto Parks and/or a dog off-leash park, in consultation with the General Manager, Parks, Forestry and Recreation in Ward 5 (2021 boundaries) and in consultation with the local Ward Councillor; and

C. $100,000.00 (One Hundred Thousand) towards the revitalization of the Weston Library Branch.

2. The cash contribution set out in Subsection 1 above shall be indexed upwardly in accordance with the Statistics Canada Non-Residential 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 execution of the Section 37 Agreement to the date of payment of the Cash Contribution by the owner to the City.

3. In the event the Cash Contribution in Subsection 1 has not been used for the intended purpose within three (3) years of the By-law coming into full force and effect, the Cash Contribution may be redirected for another purpose(s), at the discretion of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor, provided that the purpose is identified in the Official Plan and will benefit the community in the vicinity of the Property.

4. The owner shall provide the following to support the development of the lands:

A. Prior to the earlier of the issuance of any Building Permit or Site Plan Approval, the owner has submitted a Noise and Vibration Feasibility Study, the study has been peer reviewed by a third-party Noise and Vibration Consultant retained by the City of Toronto at the owner's expense, and the owner has agreed to implement the noise and vibration control measures and recommendations identified through the peer review, with these measures to be secured through the Site Plan Control process, all to the satisfaction of the Chief Planner and Executive Director, City Planning;

B. Prior to the earlier of the issuance of any Building Permit or Site Plan Approval, the owner has submitted a Derailment Protection Report, the report has been peer reviewed by a third-party retained by the City of Toronto at the owner's expense, and the owner has agreed to implement the derailment protection measures and recommendations identified through the peer review, with these measures to be secured through the Site Plan Control process, all to the satisfaction of the Chief Planner and Executive Director, City Planning;

C. Prior to the earlier of the issuance of any Building Permit or Site Plan Approval, the owner has submitted a revised Transportation Impact Study including a revised Parking Justification to the satisfaction of the General Manager, Transportation Services;

D. Prior to the earlier of the issuance of any Building Permit or Site Plan Approval, the owner has entered into an appropriate agreement with the City introducing, at no cost to the City, any ultimately-approved traffic control signal timing adjustments and additional phases, including any hardware modifications, required at the signalised intersections in the immediate vicinity of the site to facilitate forecast traffic from the subject development to the satisfaction of the General Manager, Transportation Services;

E. Prior to the earlier of the issuance of any Building Permit or Site Plan Approval, the owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the Zoning By-law Amendment application, to the satisfaction of the Supervisor, Tree Protection and Plan Review; and

F. Prior to the earlier of the issuance of any Building Permit or Site Plan Approval, the owner has submitted a revised Landscape Plan and/or Tree Inventory and Preservation Plan Report and that Tree Preservation matters are resolved to the satisfaction of the General Manager, Parks, Forestry and Recreation.

Diagram 1

Diagram 2

Diagram 3