QP Residential GP Inc. v. Toronto (City), 2022 CanLII 78157

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

August 24, 2022

CASE NO(S).:

OLT-22-002850

EFECTIVE DATE:

August 9, 2022

(formerly PL190470)

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

QP Residential GP Inc.

Subject:

Failure of the City of Toronto to announce a decision respecting Proposed Official Plan Amendment

Municipality:

City of Toronto

OLT File No.:

OLT-22-002850

OLT Legacy Case No.:

PL190470

OLT Case Name:

QP Residential GP Inc. 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:

QP Residential GP Inc.

Subject:

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

Existing Zoning:

MCR T3.0 “Mainstreet Commercial Residential”, RA “Reinvestment Area”

Proposed Zoning:

Site Specific (To be determined)

Purpose:

To permit the development of a mixed-use building

Property Address/Description:

351, 353, 371, 373 Queen Street East, 161 and 167 Parliament Street, and 80, 82, 90, 92 and 94 Power Street

Municipality:

City of Toronto

Municipality File No.:

18 136695 STE 28 OZ

OLT File No.:

OLT-22-002850

OLT Legacy Case No.:

PL190471

OLT Case Name:

QP Residential GP Inc. v. Toronto (City)

BEFORE:

G.C.P BISHOP

Tuesday, the 9^th^

ALTERNATE CHAIR

day of August, 2022

THIS MATTER having been heard by the then-Local Planning Appeal Tribunal (now, the Ontario Land Tribunal, or the “Tribunal”) on November 18, 2020

AND THE TRIBUNAL, in its Decision issued November 23, 2020 (the “Interim Decision”), having allowed the appeals filed by QP Residential GP Inc. (the “Appellant”) in File No. OLT-22-002850 (Legacy File Nos. PL190470 and PL190471), in part, and having approved in principle the Official Plan Amendment and Zoning By-law Amendments in the form of Exhibits C, D and E to the affidavit of Peter Smith, sworn November 17, 2020 (said affidavit being marked as Exhibit 1);

AND THE TRIBUNAL having withheld its final Order on the Official Plan Amendment and the Zoning By-law Amendment until the conditions identified in Attachment A to the Interim Decision are satisfied;

AND THE TRIBUNAL HAVING BEEN ADVISED by the Parties on August 9, 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 Friday, the 9^th^ day of August, 2022;

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 City’s Official Plan and 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 in accordance with section 9 of the Ontario Land Tribunal Act, 2021, and in accordance with subsections 17(50) (as applicable via subsection 22(11)) and 34(26) of the Planning Act and on the consent of the parties:

1. The appeals filed by the Appellant in Case File No. OLT-22-002850 (Legacy File Nos. PL190470 and PL190471), are allowed, in part;

2. The Tribunal hereby approves the Official Plan Amendment attached hereto as Attachment 1 to this Order;

3. The Tribunal hereby approves the Zoning By-law Amendment attached hereto as Attachment 2 to this Order;

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

5. The Tribunal may be spoken to in the event that the Parties have any difficulty in implementing this Decision and Order.

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 Tuesday, August 9, 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

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.

ATTACHMENT 1

Authority: Ontario Land Tribunal issued on November 23, 2020 and its Order issued on August 24, 2022 in Tribunal Case PL190470

CITY OF TORONTO

BY-LAW No. ~-2022(OLT)

To adopt an amendment to the Official Plan for the City of Toronto respecting the lands known municipally in the year 2021 as 351-373 Queen Street East, 161-167 Parliament Street, & 80-94 Power Street

WHEREAS after hearing the appeal under subsection 22(7) of the Planning Act, R.S.O. 1990 c. P.13, as amended, and pursuant to its Order in respect of Board File PL190470, issued on August 24, 2022, the Ontario Land Tribunal deems it advisable to amend the City of Toronto Official Plan;

The City of Toronto Official Plan, as amended, is further amended by the Ontario Land Tribunal as follows:

1. The attached Amendment No. XXX to the Official Plan is hereby adopted pursuant to the Planning Act, as amended.

PURSUANT TO THE DECISION OF THE ONTARIO LAND TRIBUNAL ISSUED ON November 23, 2020 AND ITS ORDER ISSUED ON August 24, 2022 IN TRIBUNAL CASE PL190470

AMENDMENT NO. XXX TO THE OFFICIAL PLAN

Lands known municipally in the year 2021 as 351-373 Queen Street East, 161-167 Parliament Street, & 80-94 Power Street

The Official Plan of the City of Toronto is amended as follows:

1. Chapter 6, Section 15, King-Parliament Secondary Plan, is amended by adding the following subsection to Section 15, Site and Area Specific Policies:

“7. 351-373 Queen Street East, 161-167 Parliament Street, & 80-94 Power Street

A comprehensive mixed-use development, including a substantial retail component, is permitted on the lands shown as 7 on Map 15-3. The built form on the lands will be comprised of a 3-storey base building lined with active, street-related uses, a 12- and 13-storey mid-rise element and a 27-storey tower element.”

2. Map 15-3, Areas of Special Identity, is amended to show the lands known municipally in 2021 as 351-373 Queen Street East, 161-167 Parliament Street, & 80-94 Power Street as Site and Area Specific Policy Area Number 7, as shown on the attached Schedule A.

ATTACHMENT 2

Authority: Ontario Land Tribunal issued on November 23, 2020 and its Order issued on August 24, 2022 in Tribunal Case PL190470

CITY OF TORONTO

BY-LAW NO. XXXX-2022(OLT)

To amend Zoning By-law No. 569-2013 with respect to the lands municipally known

in the year 2021 as 351-373 Queen Street East,161-167 Parliament Street

& 80-94 Power Street

Whereas the Ontario Land Tribunal pursuant to its Decision/Orders issued on November 23, 2020, and on August 24, 2022 in respect of Tribunal File PL190470, 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 the Zoning By-law for the City of Toronto, being By-law 569-2013, as amended, with respect to lands municipally known in the year 2019 as 351-373 Queen Street East,161-167 Parliament Street and 80-94 Power 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 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 is secured by one or more agreements between the owner of the land and the City of Toronto; and

Now therefore pursuant to the Order of Ontario Land Tribunal, By-law No. 569-2013 is further amended as follows:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to By-law.

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law No. 569-2013, Chapter 800 Definitions.

(i)

3. Zoning By-law No. 569-2013, as amended, is further amended by amending the zone labels on the Zoning By-law Map in Section 990.10 respecting the lands outlined by heavy black lines from CRE (x1), CR 3.0 (c3.0; r3.0) SS2 (x2172) and CR 3.0 (c3.0; r3.0) SS2 (x1715) to CR 3.0 (c3.0; r3.0) SS2 (x770) and O, as shown on Diagram 2 attached to this By-law.

(ii)

4. Zoning By-law No. 569-2013, as amended, is further amended by adding to Article 900.11.10 Exception Number 770, so it reads:

(770) Exception CR 770

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) For the purpose of this exception, Regulation 900.11.10(333) applies to the lands identified as "Part 1" and Regulation 900.11.10(339) applies to the lands identified as "Part 2", as shown on Diagram 1 of By-law [Clerks to supply by-law ##];

(iii)

(B) Despite (A) above, if the requirements of Section 6 and Schedule A of By-law [Clerks to supply by-law ##] are complied with, Regulations 900.11.10(333) and (339) do not apply to the lands municipally known as 351-373 Queen Street East, 161-167 Parliament Street, & 80-94 Power Street, and a building, structure, addition or enlargement may be constructed in compliance with (C) to (T) below;

(iv)

(C) Despite Regulation 40.5.40.10(1) and (2), the height of a building is measured as the vertical distance between the Canadian Geodetic Datum elevation of 83.92 metres and the elevation of the highest point of the building or structure;

(v)

(D) Despite Regulations 40.5.40.10(2), (3), (4), (5), (7) and (8), the following elements of a building or structure may project above the permitted maximum building heights shown on Diagram 3 of By-law [Clerks to supply by-law ##]:

(vi)

(i) Chimneys, vents, parapets, maintenance equipment storage, privacy screens, railings, dividers and guard rails, light fixtures, to a maximum of 3.0 metres;

(ii) Mechanical and electrical equipment located on the portion of the building labelled "ST 1” and “HT 7.5” as shown on Diagram 3 of By-law [Clerks to supply by-law ##], to a maximum of 4.5 metres;

(iii) landscaping elements, pergolas, partition screens, wind screens, sun shades, maintenance equipment and elements of a green roof and outdoor amenity to a maximum of 4.0 metres;

(iv) a mechanical penthouse located on the roof of the building, which includes equipment for the functional operation of the building, and structures that enclose, screen or cover such equipment, may project a maximum of 6.0 metres, to not exceed a height of 97.5 metres, as shown on Diagram 3 of By-law [clerks to supply By-law ##]; and

(v) an elevator overrun located on the mechanical penthouse may project above the height specified in (D)(iv) by a maximum of 1.5 metres, to not exceed a height of 99.0 metres, as shown on Diagram 3 of By-law [Clerks to supply by-law ##];

(E) Despite Regulation 40.5.40.60(1) and Clause 40.10.40.60 the following building elements and structures are permitted to encroach into the required minimum building setbacks shown on Diagram 3 of By-law [Clerks to supply by-law ##]:

(i) canopies, balustrades, cornices, wall pilasters, signage, eaves, light fixtures, stairs, and window sills to a maximum of 1.5 metres;

(vii)

(ii) balconies on the north and west main walls above a height of 16 metres, to a maximum of 1.5 metres;

(F) In addition to the exclusions listed in Regulation 40.5.40.40(3), mechanical, electrical and storage rooms located on first storey and the mezzanine level will be excluded from the calculation for gross floor area;

(viii)

(G) Despite Regulation 40.10.40.10(2), the permitted maximum height of a building or structure is the numerical value, in metres, following the letters "HT" as shown on Diagram 3 of By-law [Clerks to supply by-law ##];

(H) Despite Regulation 40.10.40.10(7), the permitted maximum number of storeys in a building is the numerical value following the letters "ST" as shown on Diagram 3 of By-law [Clerks to supply by-law ##];

(I) Despite (G) above, the following portions of a building do not constitute a storey:

(i) a partial storey between the third floor and the fourth floor of a building;

(ii) a "mezzanine level" of a building; and

(iii) for the purpose of this exception, a "me mezzanine level" is a level located between the first storey and the second full storey, provided that the gross floor area of the mezzanine level must not exceed 50% of the gross floor area of the first storey in the building;

(ix)

(J) Despite Regulation 40.10.40.40(1), the total gross floor area of buildings and structures on the lot must not exceed a maximum of 35,700 square metres, of which:

(i) A maximum gross floor area of 32,100 square metres may be residential uses;

(ii) A minimum gross floor area of 3,400 square metres must be non-residential uses; and

(x)

(iii) A maximum gross floor area of 4,000 square metres may be non-residential uses;

(xi)

(K) Despite Regulation 40.10.40.50(1)(A), at least 1.5 square metres for each dwelling unit of indoor amenity space must be provided;

(xii)

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

(xiii)

(M) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, parking spaces must be provided at a minimum rate of:

(xiv)

(i) 0.2 parking spaces per dwelling unit for residential occupants; and

(xv)

(ii) 0.1 parking spaces per dwelling unit for the shared use of residential visitors and non-residential uses;

(xvi)

(N) Despite (L) above, "car-share parking space" 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", to a maximum of 2 "car-share parking spaces";

(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;

(xvii)

(O) Despite Regulation 200.15.10(1), a minimum of 5 accessible parking spaces must be provided;

(xviii)

(P) Despite Regulations 200.15.1(1) and (3), an accessible parking space must be provided as follows:

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

a. length of 5.6 metres;

b. width of 3.4 metres;

c. vertical clearance of 2.1 metres; and

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

(Q) Despite Regulations 230.5.1.10(10) and 230.50.1.20(1), both "long-term" and "short-term" bicycle parking spaces may be provided in a stacked bicycle parking space and may be located in an enclosed room;

(xix)

(R) Despite Regulations 220.5.1.10(1), 220.5.10.1(2), (3) and (4), two Type “B” loading spaces and one Type “G” loading space must be provided and maintained on the lot;

(xx)

(S) A minimum of 40 percent of the total number of dwelling units on the lot must contain two or more bedrooms, of which a minimum of 10 percent of the total number of dwelling units must contain three or more bedrooms; and,

(T) Regulation 40.10.20.100 (1)(A) regarding the permitted maximum interior floor area of eating establishments and take-out eating establishments does not apply.

(xxi)

Prevailing By-laws and Provisions: (None Apply)

1. Despite any future severance, partition or division of the lands shown on Diagram 1, the provisions of this By-law shall apply as if no severance, partition or division occurred.

2. 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;

(xxii)

(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

(xxiii)

(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 OF THE ONTARIO LAND TRIBUNAL ISSUED ON November 23, 2020 AND ITS ORDER ISSUED ON August 24, 2022 IN TRIBUNAL CASE PL190470

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/or 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) a cash contribution of one million, five hundred thousand dollars ($1,500,000.00) to be paid by the Owner prior to the issuance of the first above-grade building permit and to be allocated as follows: 50 percent shall be put toward capital improvements in Toronto Community Housing buildings and/or new or existing affordable housing units within proximity of the subject site in the Ward, with the remaining 50 percent to be put towards local streetscape, parkland and/or community facilities within proximity of the subject site in the Ward, at the discretion of the Chief Planner and Executive Director, City Planning and in consultation with the Ward Councillor;

(2) the cash contribution referred to in (1) shall be indexed upwardly in accordance with the Statistics Canada Residential or Non-Residential, as the case may be, 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; and

(3) in the event the cash contribution referred to in (1) above has not been used for the determined purpose within three (3) years of the amending Zoning By-laws coming into full force and effect, the cash contribution may be redirected for another purpose, at the discretion of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor, provided the purpose is identified in Official Plan Policy 5.1.1 and will benefit the community in the vicinity of the lands; and

(4) the Section 37 Agreement will also secure the following matters as a legal convenience to support the development:

i. replacement rental dwelling units and, rents, tenant relocation and assistance, any other rental housing-related matters and other Section 37 matters, all to the satisfaction of the City Solicitor;

ii. the Owner shall develop a Tenant Relocation and Assistance Plan with assistance and financial compensation provisions that extend beyond those provided under the Residential Tenancies Act, 2006, based on the City's usual considerations and requirements as of the date of the Settlement Offer, all to the satisfaction of the Chief Planner and Executive Director, City Planning; and

iii. the Owner shall provide and maintain within the new residential building(s) a dwelling unit mix that includes a minimum of 10 percent three-bedroom dwelling units and a minimum of 30 percent two-bedroom units, for a minimum of 40 percent of the total number of dwelling units having two or more bedrooms.