Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 12, 2022 CASE NO(S).: OLT-22-002383 (Formerly PL210208)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Artlife Developments Subject: Application to amend Cliffcrest Community Zoning By-law 9396- Refusal of Application by the City of Toronto Existing Zoning: Highway Commercial (HC) Zone Proposed Zoning: Apartment Purpose: To permit a 10-storey mixed-use building. Property Address/Description: 2872, 2880 & 2882 Kingston Road Municipality: City of Toronto Municipality File No.: 18 255259 ESC 36 OZ OLT Case No.: OLT-22-002383 Legacy Case No.: PL210208 OLT File No.: OLT-22-002383 OLT Case Name: Artlife Developments v. Toronto (City)
Heard: June 28, 2022 by video hearing; August 9, 2022 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Artlife Developments | I. Tang, L. English |
| City of Toronto | S. Amini, M. Mahoney |
MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON JUNE 28, 2022 AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1The Appellant, Artlife Developments (988725 Canada Inc. and 10156507 Canada Corp.), is the owner of the property municipally known as 2872, 2880, and 2882 Kingston Road in the City of Toronto (the "Subject Property"). The Subject Property is located on the northwest corner of Kingston Road and Harewood Avenue, just east of the intersection of St. Clair Avenue East and Kingston Road and is approximately 0.467 acres in size. The Subject Property has frontages along both Kingston Road and Harewood Avenue and a laneway owned by the City of Toronto (the "City"), 4.66 metres wide, abuts the northern property line of the Subject Property extending west from Harewood Avenue.
2The Appellant applied to the City for an amendment to the City's zoning by-law to permit redevelopment of the Subject Property as follows: A 10 storey mixed use building comprised of 145 residential units atop commercial space, with three levels of underground parking. City Council refused the requested amendment and the Appellant appealed that decision to the Tribunal pursuant to s. 34(11) of the Planning Act ("Act") (the "Appeal").
3Further discussions occurred between the Appellant and City staff regarding a potential settlement of the Appeal including further consideration by City Council, and ultimately a settlement was reached between the Appellant and the City, with City Council approving such settlement.
4Pursuant to the settlement, the proposed redevelopment and corresponding requested amendment to the City's Zoning By-law before the Tribunal for its consideration at today's proceedings is a nine (9) storey mixed use building comprised of 138 residential units atop ground floor commercial space and underground parking Zoning By-law Amendment (the "ZBA").
5Three persons granted Participant status in the Appeal provided written submissions to the Tribunal with respect to this matter: Janet May, Janet Sumner, and the Cliffcrest Scarborough Village SW Residents Association by its representative, Tom Kasanda, who advised that he is past President and a current Director of that Association. (The latter two persons held Party status originally but converted to Participant status prior to this Hearing on consent of all Parties.)
6The following documents were entered as Exhibits in Evidence:
Exhibit 1: Affidavit of Service of Edmund Un sworn August 5, 2021
Exhibit 2: Affidavit of Elyn Minassian affirmed June 27, 2022
Exhibit 3: Affidavit of Michael Goldberg affirmed June 17, 2022; and
Exhibit 4: Extracts from Goldberg Planning Report dated November 9, 2018.
7At the conclusion of the Hearing on June 28, 2022, the Tribunal rendered an oral interim decision approving the ZBA subject to certain conditions which must be fulfilled prior to the Tribunal issuing its Final Order. This is the written memorandum of that interim decision. The Parties briefly attended before the Panel again on August 9, 2022 at the direction of the Panel for the purposes of clarifying the form of the Interim Order.
EVIDENCE
8At the Hearing, the Appellant called one witness, Michael Goldberg, who was qualified by the Tribunal to provide expert opinion land use planning evidence. Mr. Goldberg's Curriculum Vitae and Acknowledgement of Expert's Duty are found at Exhibit A to Exhibit 3 in evidence of this proceeding, being Mr. Goldberg's Affidavit.
9Mr. Goldberg provided expert professional land use planning opinion evidence at the Hearing in summary as follows:
(a) The ZBA has regard for the matters of Provincial interest set out in Section 2 of the Planning Act, R.S.O. 1990, as amended (the "Planning Act") including the orderly development of safe and healthy communities, the appropriate location of growth and development and the promotion of development that is designed to be sustainable, to support public transit and be oriented to pedestrians. Mr. Goldberg testified that the ZBA will include a holding provision to ensure that there is adequate servicing capacity. The proposed development will be on Kingston Road, which is an arterial road with sidewalks that is well-served by public transit. Further, Mr. Goldberg opined that the proposed development has been designed to encourage a "sense of place" that will provide "high quality, safe, accessible, attractive and vibrant public spaces."
(b) The ZBA is consistent with the Provincial Policy Statement, 2020 (the "PPS") and, in particular, the proposed development will, among other things, promote efficient cost-effective development and the integration of growth management, transit-supportive development, intensification, and infrastructure planning (Policy 1). In this regard, Mr. Goldberg noted that the Subject Property is located along a designated transit corridor and the City's Official Plan designates the Subject Property as "Mixed Use Areas" which has been identified as an area of intensification. Moreover, with reference to the policy which directs planning authorities to provide for an appropriate range and mix of housing options and densities, Mr. Goldberg noted that the proposed development provides an appropriate range of housing units, including 68.8% 1-bedroom units, 14.5% 2-bedroom units, and 12.3% 3-bedroom units.
(c) The ZBA conforms with the Growth Plan for the Greater Golden Horseshoe, 2020 (the "Growth Plan") and conforms to the policies that encourage compact and vibrant complete communities that optimize the use of land and infrastructure. In this regard, Mr. Goldberg noted that the Subject Property is located within a Strategic Growth Area that has Frequent Transit service within the meaning of the Growth Plan and, as such, is an area where the Growth Plan policies direct the most intensive forms of growth. The Growth Plan also encourages intensification in appropriate locations and in his opinion the Subject Property is appropriate for the proposed mid-rise mixed use development as it can "co-exist comfortably and compatibly with the lower forms of adjacent development." Mr. Goldberg also testified that the Subject Property is well-served by shopping, services, places of employment, education, recreation, and community facilities. Mr. Goldberg opined that the housing mix and density will contribute to the evolution of the area as a "more complete community" in conformity with Policy 2.2.6 of the Growth Plan.
(d) The ZBA conforms with the City's Official Plan (the "OP") and in particular its Growth Management Policies, Healthy Neighbourhood Policies, Avenues Policies, Mixed Use Areas Policies, and Public Realm and Built Form Policies and Housing Policies. Mr. Goldberg testified that the Subject Property is identified in the OP as part of an Avenue, a Transit Priority Segment, and Mixed Use Areas, being an area identified to accommodate additional growth with additional heights and densities. In Mr. Goldberg's opinion, the overall height, together with the setbacks and stepbacks, provide for adequate transition in height towards the adjacent neighbourhoods such that the proposed 9 storey height "contextually fits into the existing and planned context of the surrounding area." Mr. Goldberg also opined that the proposed development has been designed to adequately limit shadows on streets, open spaces, parks and other properties.
(e) The proposed development generally satisfies the City's Mid-Rise Guidelines with regard to performance standards to achieve a mid-rise built form that is moderate in scale and reflects high quality design and materials. Mr. Goldberg noted that these Guidelines are not found within the City's OP and Section 5.3.2.1 of the City's OP "suggests that the guideline documents are intended as a flexible document, used with discretion, based on context and are not assigned the same status as City OP policy." In support of his opinion that the proposed development generally satisfies the City's Mid-Rise Guidelines, Mr. Goldberg provided detailed evidence regarding the various elements of the Guidelines including setbacks and stepbacks of the proposed development and attention to the Guidelines pertaining to addressing shadowing, the streetscape and façade design and articulation of the proposed development.
(f) With regard to the written submissions of the 3 Participants, Mr. Goldberg opined that the proposed height and density, together with the setbacks and stepbacks, contribute to a proposed development that constitutes an appropriate built form and scale of intensification for the Subject Property. Mr. Goldberg opined that many of the concerns of the Participants, including those regarding transportation impacts and tree preservation, have been addressed satisfactorily through the professional reports and studies submitted to the City in support of the ZBA. Mr. Goldberg advised that the tree preservation plan will include addressing the preservation of trees on the adjacent properties. Mr. Goldberg also advised that there will be "Privately-Owned Publicly Accessible Space" provided as part of the proposed development, a wide pedestrian zone along both Kingston Road and Harewood Avenue and landscaping, all of which will contribute to an "activated public realm that is comfortable and functional."
ANALYSIS AND FINDINGS
10The Tribunal, having heard the uncontroverted evidence of the professional land use Planner, Michael Goldberg, and considered his Affidavit and excerpts of his Planning Report (Exhibits in Evidence 3 and 4 respectively), is satisfied that the ZBA is consistent with the PPS, conforms with the Growth Plan and the City's OP, has regard for the matters of Provincial interest set out in Section 2 of the Act and constitutes good land use planning.
11The Tribunal has considered the concerns raised by the Participants in their respective written submissions and is satisfied, on the evidence of Mr. Goldberg, that such concerns have been addressed appropriately in connection with the ZBA.
INTERIM ORDER
12THE TRIBUNAL ORDERS on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in Paragraph 13 below THAT the Appeal is allowed in part and the ZBA set out in Schedule A to this Order with respect to the lands municipally known as 2872, 2880 and 2882 Kingston Road as shown on Schedule B appended to this Order, is hereby approved in principle.
13The Tribunal will withhold the issuance of its Final Order contingent upon confirmation, satisfaction, or receipt of the following pre-requisite matters:
a. the Tribunal has received and approved the ZBA submitted in a final form, confirmed to be satisfactory to (1) the City Solicitor; (2) the Chief Planner and Executive Director, City Planning; and (3) the Chief Engineer and Executive Director, Engineering and Construction Services; and
b. the Tribunal has received written notification from the City Solicitor that the owner has, at its sole expense, provided a Stormwater Management Stage 1 Report, a Hydrogeological Report and Summary Forms for each report, acceptable to the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water.
14The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the ZBA and the issuance of the Final Order and with respect to such outstanding matters relating to this Interim Order and may be spoken to concerning matters relating to this interim contingent Order and the issuance of the Final Order.
15If the Parties do not submit the final draft of the ZBA and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 13 have been satisfied, and request the issuance of the Final Order, by no later than Friday October 28, 2022, the Appellant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft ZBA and issuance of the Final Order by the Tribunal. In the event that the Tribunal fails to receive the required status report, and/or in the event that the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
16The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the timelines and deadline for the submission of the final form of the ZBA, the satisfaction of the contingent pre-requisites and the issuance of the Final Order and such further follow-up as may be required to have the Final Order issued by the Tribunal.
"D. Arnold"
D. ARNOLD
MEMBER
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.