3555 Highway 7 Development Ltd. v. Markham (City), 2023 CanLII 100179

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 25, 2023

CASE NO(S).: OLT-22-004154

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant and Appellant: 3555 Highway 7 Development Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a mixed-use development that incorporates a 53-storey and two 40-storey towers

Reference Number: 21 106315 000 00 PLAN

Property Address: 3555 Highway 7 East

Municipality/UT: Markham/York

OLT Case No.: OLT-22-004154

OLT Lead Case No.: OLT-22-004154

OLT Case Name: 3555 Highway 7 Development Ltd. v. Markham (City)

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

Applicant and Appellant: 3555 Highway 7 Development Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a mixed-use development that incorporates a 53-storey and two 40-storey towers

Reference Number: 21 106315 000 00 PLAN

Property Address: 3555 Highway 7 East

Municipality/UT: Markham/York

OLT Case No.: OLT-22-004155

OLT Lead Case No.: OLT-22-004154

Heard: September 29, 2023

APPEARANCES:

Parties

Counsel

3555 Highway 7 Development Ltd.

Calvin Lantz Donya Yarahmadi

City of Markham

Maggie Cheung-Madar

New World Centre (Markham) Development Corp.

Matthew Helfand Eileen Costello (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON SEPTEMBER 29, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

1The matter before the Tribunal concerns two appeals filed by 3555 Highway 7 Development Ltd. (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) against the City of Markham (“City”) for its failure to make a decision on an application for an Official Plan Amendment (“OPA”) and an application for a Zoning By-law Amendment (“ZBA”) (collectively the “Applications”) within the prescribed timeframes as set out in the Act. The lands that are subject to the appeals are known municipally as 3555 Highway 7 East (“Subject Property”).

2The Applications will facilitate the redevelopment of the Subject Property with three mixed-use tower elements set on two distinct four-storey podiums. An amendment to the OPA and Markham Centre Secondary Plan (“SP”) to permit greater heights and densities is required to permit the proposed development. The proposed OPA permits a maximum height of 45-storeys measured from Highway 7 grade level and a maximum Floor Space Index (“FSI”) of 10.0. A ZBA is required to increase the permitted height and density allowed and reduce the parking standards on the Subject Property.

3The Subject Property consists of 1.1 hectares (“ha”) of vacant land located at the southwest corner of Highway 7 and South Town Centre Boulevard in the City, located within Markham Centre, adjacent to the Markham Civic Centre.

4The Subject Property is bordered by a vacant lot to the west and a private road and Thomas McQuay Park to the south. The surrounding neighborhood context includes a mix of employment and urban residential uses to the south, commercial and urban residential uses to the east, urban high-density residential uses to the north, and a proposed 2 ha mixed use high-density residential development to the west. The Subject Property is in an area of Markham Centre which is experiencing a significant increase in density and development proposals as it transforms into a high-density mixed-use community.

5The Subject Property is approximately 1.75 kilometres southeast of the Toronto Buttonville Municipal Airport and is subject to Airport Zoning Regulations, NAV Canada, and Transportation Canada regulations. Relevant to the Applications is that the Airport is scheduled to be decommissioned in November 2023.

6The Applications were filed with the City on February 10, 2021. In March 2022, a revised submission was submitted to the City based on feedback from the local community, local and regional Councillors, the Mayor, and City staff. The revised proposal contemplated 42-, 38- and 48-storey towers, set on two distinct four-storey podiums. The maximum height of the tower elements proposes not to exceed 45-storeys measured from grade. The development proposes up to 1,114 residential units.

7On July 18, 2022, the Applicant filed appeals in accordance with the Act.

8As part of ongoing discussions with the City, the Appellant filed a third submission in August 2023, refining the proposed development in terms of land use mix, tower heights, and provision of open space, reflecting a balance of proponent and City development goals and objectives. The submission consisted of draft OPA and ZBA Instruments, including draft schedules shared with City staff on July 24, 2023 (“Settlement Proposal”).

9On August 21, 2023, a second Case Management Conference (“CMC”) was conducted. The City and Appellant had reached a settlement on consent, with the neighbouring property New World Centre (Markham) Development Corp. (“New World”), a Party in the OLT appeal proceedings, seeking to review final planning instruments before agreeing with the settlement.

10On September 18, 2023, the City and Appellant reached a settlement on the final planning instruments. These instruments were shared with New World for their review and comment on the same day.

11The Settlement Proposal was based on the following revisions:

a. Three tower elements set on two distinct four storey building podiums, with tower heights of 45-storeys and two 38-storeys towers.

b. Up to 1,250 residential units, a total Gross Floor Area (“GFA”) of 110,431 square metres (“m2”)., including a residential GFA of 101,394 m2, a non-residential GFA of 9,037 m2, and a total density of FSI of 10.0.

12Counsel for the City and New World attended the hearing, indicating support of the Settlement Proposal.

LEGISLATIVE FRAMEWORK

13When considering an appeal of an application to amend an official plan, filed pursuant to s. 22 of the Act, and an application to amend a zoning by-law, filed pursuant to s. 34 of the Act, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, as amended, 2020 (“Growth Plan”). The Tribunal must also be satisfied that the ZBA conforms with the official plan(s) in effect.

14In consideration of the statutory requirements, as set out above, the Tribunal must be satisfied that the OPA and ZBA represent good planning and are in the public interest.

EVIDENCE AND SUBMISSIONS

15The Tribunal qualified Melanie Hare, a Registered Professional Planner, to provide opinion evidence as an expert in land use planning. Ms. Hare provided an affidavit sworn on September 27, 2023, in support of the Settlement Proposal and approval of the OPA and ZBA instruments (“Exhibit 1”).

16Ms. Hare reviewed the Settlement Proposal consisting of redeveloping the Subject Property into an urban high-density mixed-use development set within an enhanced public realm that includes streetscaping and gathering spaces animated by retail, grocery, commercial, fitness, day care, and restaurant facilities within three tower elements set on two distinct four-storey building podiums. The following are key elements of the redevelopment:

a. The podiums include structured parking (above-ground parkade) of a maximum height of three-storeys measured from grade and will be partially lined with active uses or architecturally integrated treatment.

b. The maximum height of the eastern tower element will not exceed the greater of 45-storeys or 169 metres (“m”) measured from grade. The maximum height of the remaining tower elements will not exceed the greater of 40-storeys or 150 m. The maximum floor plate sizes for the non-podium floors will be up to 850 m2.

c. The maximum proposed overall site density will not exceed 10 FSI.

d. The maximum proposed GFA will be 110,431 m2. The GFA calculation excludes any structured parking (above-ground parkade). The proposed development includes the following GFA breakdown:

i. Residential and amenity uses of a maximum GFA of 101,394 m2.

ii. Non-residential uses GFA (including, but not limited to commercial, retail stores, and day care uses) of a minimum of 9,037 m2, whereby non-residential uses excluding retail stores uses of a minimum of 5,574 m2.

e. Up to 1,250 residential units, composed of a mix of studio to three-bedroom dwellings are proposed. 100 residential market rental units, to be located within Phase 2 of the development, are proposed, and will be composed of a mix of studio to three-bedroom dwellings.

f. A parking ratio of a minimum of 0.6 spaces/unit for residential uses, 0.1 spaces/unit for visitors, and 1 space/100 m2 for non-residential GFA is proposed.

g. A bicycle parking ratio of a minimum of 0.8 long-term spaces/unit and 0.2 short-term spaces/unit for residential uses and 0.2 long-term spaces/100 m2 and 0.15 short term spaces/100 m2 for all other non-residential uses.

h. Phase 1 of development will include a 45-storey tower, which will include underground parking levels, situated at southwest corner of Highway 7 and South Town Centre Boulevard.

i. Phase 2A of development is proposed to include a 38-storey tower and the western podium building, including both structured parking and underground parking levels.

j. Phase 2B of development is proposed to include a 38-storey tower located on the shared western podium.

17The terms of the Settlement Proposal include a request for the Tribunal to approve the proposed OPA and ZBA instruments, as presented in Tabs 12 and 13 of the Joint Document Book (“Exhibit 2”).

PLANNING EVIDENCE

18Ms. Hare reviewed the matters of provincial interest as set out in s. 2 of the Act and specifically subsections (e) to (s). Ms. Hare opined that the Settlement Proposal has appropriate regard for these matters. In consideration of the PPS, Ms. Hare reviewed the policies related to the intensification of a vacant site allowing for an efficient use of existing infrastructure including public transportation. In doing so the Settlement Proposal creates a high-density mixed-use development with a sense of place and open spaces that will be enjoyed by the public, workers, and residents. By increasing housing and employment opportunities within Markham Centre, the proposed development contributes to the long-term economic prosperity of Markham, York Region, and the Province.

19Ms. Hare reviewed the applicable policies of the Growth Plan and submits that the proposed development conforms with, and is supported by, the policies of the Growth Plan. The proposed development intensifies a vacant site in both an Urban Growth Centre (“UGC”) and Major Transit Station Area (“MTSA”), providing a dense mix of housing and employment uses in an active transportation and transit-supportive location. Located at the centre of an MTSA on a Priority Transit Corridor, the proposed development will contribute to the achievement of the minimum 160 people and jobs per hectare density, and the Region’s draft target of 200 people and jobs per hectare density. The proposed development provides for a range of housing unit sizes and tenures, and major office uses, creating a complete community capable of housing growth in a strategically important UGC. Internal circulation and open space networks and connections to surrounding active transportation networks promote active transportation and a healthy community. Ancillary retail, that can serve residents and employees of the development and the surrounding area, further adds to a complete community. Overall, the proposed development will ensure a coordinated and appropriate intensification of land that is well-serviced by a major recent investment in transit, the VIVA Rapidway BRT.

20Ms. Hare reviewed the Settlement Proposal in the context of the York Region Official Plan, 2010 (“ROP”) and advised the proposed development conforms with and supports the policies of the ROP. Specifically, the proposed development contributes to high-quality urban design and pedestrian friendly communities, provides a mix and range of unit sizes and tenures, creates a mixed-use pedestrian environment in a Regional Centre that promotes transit use that includes street related retail use. The on-site retail will be walkable, transit supportive, and integrated into Markham Centre’s pedestrian and cycling network. The proposed development’s retail and commercial uses are designed in a compact form that is pedestrian-oriented and transit-supportive. The proposed development intensifies a vacant site in both a Regional Centre and Regional Corridor, providing a dense mix of housing and employment uses in an active transportation and transit supportive location. The proposed development supports the ROP policies of healthy communities and directs growth to a focal point of high densities and a mix of uses.

21Ms. Hare advised that the proposed development conforms to the Markham Official Plan, 1987 (“OP 1987”) as it contributes to the planned function as a multiuse centre with a range of retail, institutional, recreational, office, and higher density housing uses on the Subject Property. The Subject Property is located at the intersection of two arterial roads and is well served by public transit and is integrated into the broader planned development in Markham Centre.

22Ms. Hare advised that OP-1987 has been replaced by the Council adopted 2014 Markham Official Plan (“OP”), however, the OP remains under appeal at the Ontario Land Tribunal, meaning that OP 1987 remains in force. Therefore, the designation and policies of OP-1987 still prevail for the Subject Property.

23Ms. Hare opined that the proposed development conforms with, and is supported by, the policies of the OP. The proposed development intensifies a vacant site in a Regional Centre, a Regional Rapid Transit Corridor, and on lands identified as Mixed-Use High Density providing a dense mix of housing and employment uses in an active transportation and transit-supportive location. The proposed development conforms with the intent of the OP policies by directing high-density mixed-use growth and community amenities to an area that is designated to see the greatest levels of intensification in Markham.

24Ms. Hare advised the proposed development conforms with the intent of the SP PD 33-1. Specifically, the site is identified as being at a key activity node and that its location on Highway 7 East places it in a high activity area comprised of high-density residential, office, hotel, and entertainment uses. The SP identifies the corner of South Town Centre Boulevard and Highway 7 East as a Landmark location. Ms. Hare opined the proposed development conforms with the intent of the policies of the OP and SP PD 33-1; however, the proposed development will require an OPA to permit greater heights and densities on site.

25Ms. Hare highlighted that the Markham Centre Zoning By-law 2004-196 (“By-law 2004-196”) implemented the City-initiated Official Plan Amendment 21 (“OPA 21”) with the intention of creating a vibrant and dynamic downtown core in the City. OPA 21 and the implementing By-law 2004-196 support transit-oriented, pedestrian-oriented, and mixed-use development in the plan area. By-law 2004-196 applies to the entirety of the Subject Property. The proposed development complies with the provisions of By-law 2004-196 by proposing a high-density, transit, and pedestrian supportive mixed-use development. The site’s zoning under By-law 2004-196 allows for a range of non-residential uses, including hotel, retail, commercial, office, community, recreational, and institutional uses. However, the proposed development requires a ZBA to permit the proposed heights, densities, and to define the GFA for the mix of uses on the site.

26Ms. Hare stated that By-law 2012-28 amended Zoning By-law 2004-196 to add site specific policies to the Subject Property. The site-specific policies permit an additional use of 500 apartment dwellings within a building also containing hotel, trade, or convention centre, one or more restaurants, commercial fitness, and office or medical office or personal service store or retail stores. Exemptions also dictate the Subject Property parking standards, as well as provisions for maximum net floor area, minimum and maximum heights, setbacks, and holding zones. To implement the proposed development, current zoning regulations will need to be amended to allow for the density, heights, and mix of uses proposed.

27In conclusion, Ms. Hare proffered that the Settlement Proposal responds to comments received from the City through the development application process. The resulting revisions to the 2021 submission are a result of this collaboration and have resulted in improvements to the development and resultant Settlement Proposal. Ms. Hare stated that the Settlement Proposal satisfies the applicable provisions of the Act, is consistent with the Provincial Policy Statement, conforms to the Growth Plan, the Region of York Official Plan, the intent of the Markham Official Plan and the in-force Markham Centre Secondary Plan.

28Ms. Hare advised the Settlement Proposal represents an orderly development of the Subject Property at an appropriate location for growth and intensification in Markham’s City Centre. The Settlement Proposal will implement the proposed development and contribute an improved public realm and a range of housing in a vertically integrated mixed-use development adjacent to higher-order transit.

29Ms. Hare opined that the Settlement Proposal represents good planning and is in the public interest. Ms. Hare recommended that the Settlement Proposal be approved and that the Order submitted on consent with the City and the Applicant be issued, giving effect to the proposed OPA and ZBA instruments.

ANALYSIS AND FINDINGS

30Having considered the uncontroverted testimony of Ms. Hare and her affidavit in support of the Settlement Proposal and having reviewed the proposed instruments, the Tribunal finds that the Settlement Proposal represents an appropriate optimization of the lands, public infrastructure, and existing public transit infrastructure.

31The Tribunal finds that the Settlement Proposal is consistent with the PPS as it seeks to sustain a healthy, liveable, and safe community through the promotion of the integration of land use planning, growth management, transit-supportive development, intensification, and infrastructure planning to achieve cost-effective development patterns that optimize transit investments and implement standards to minimize land consumption and servicing costs.

32The Tribunal, in consideration of the Growth Plan, finds that the Settlement Proposal conforms to the policies of the Growth Plan. The Subject Property is in a strategic growth area with access to existing higher-order transit and public service facilities. The Settlement Proposal will optimize infrastructure investment and transit infrastructure supporting the MTSA and support the achievement of complete communities with a compact built form.

33In consideration of the OP, the Tribunal finds that the Settlement Proposal represents a high-quality and mixed-use development that reduces automobile dependency, meets the needs of the local community, and provides new job opportunities and homes for the City’s growing population on underutilized lands. The Built Form policies and Public Realm are appropriately implemented in the Settlement Proposal.

34The Tribunal has considered the SP and finds that the OPA conforms with the OP and is consistent with the lands that will be subject to the SP. The site-specific policies contemplated to address the proposed height, floor plate size, density and affordability are appropriate to optimize the transit infrastructure investments and support the MTSA.

35The Tribunal finds that the ZBA, proposed to facilitate the development, as described in the Settlement Proposal, and implement the corresponding OPA, conforms with the OP and SP.

36The Tribunal has considered the matters of provincial interest as set out in s. 2 of the Act and is satisfied that the approval of the OPA and the ZBA will have regard for such matters, including being an appropriate location for growth, promoting a design that supports public transit, being a well-designed built form, and contributing to the range of housing options required to meet the social, health, and economic needs of residents to support their well-being, and assisting with the short-term and long-term projected needs of current and future residents.

37In consideration of the above, the Tribunal is satisfied that the Settlement Proposal and the requisite OPA and ZBA constitute good land use planning and are in the public interest.

38The Tribunal allows the appeals and approves the OPA and ZBA instruments contained in Attachment 1 and 2 of this Decision.

39The Tribunal may be spoken to through the Case Coordinator if some matter should arise in connection with the implementation of this Order.

ORDER

40THE TRIBUNAL ORDERS THAT the appeal pursuant to s.22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, is allowed and the Official Plan Amendment to the City of Markham Official Plan, as amended, attached hereto as “Attachment 1” is approved; and

41THAT the appeal pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, is allowed and the Zoning By-law Amendment to the City of Markham Zoning By-law 2004-196, as amended, attached hereto as “Attachment 2” is approved; and

42THE TRIBUNAL authorizes the municipal clerk to format, as may be necessary, and assign a number to these bylaws for record keeping purposes.

“W. Daniel Best”

W. DANIEL BEST

MEMBER

Ontario Land Tribunal

Website: www.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

Attachment 2