Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 27, 2023

CASE NO(S).: OLT-22-004232

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

Applicant/Appellant: DASH (QS) Inc.

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

Description: To permit a 31-storey mixed-use building

Reference Number: 21 235108 STE 13 OZ

Property Address: 120-134 Sherbourne Street, 225-229 Queen Street East

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004232

OLT Lead Case No: OLT-22-004232

OLT Case Name: DASH (QS) Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A.

Applicant/Appellant: DASH (QS) Inc.

Subject: City of Toronto Site Plan Approval

Description: To permit a 31-storey mixed-use building

Reference Number: 21 235109 STE 13 SA

Property Address: 120-134 Sherbourne Street, 225-229 Queen Street East

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004233

OLT Lead Case No: OLT-22-004232

Heard: October 11, 2023 and October 18, 2023 in writing

APPEARANCES:

Parties

DASH (Q&S) Inc.

Counsel

Jennifer Evola Signe Leisk

Parties

City of Toronto

Counsel

Kasia Czajkowski Cameron McKeich

DECISION DELIVERED BY BITA M. RAJAEE AND INTERIM ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION

1DASH (Q&S) Inc. (“Applicant”) appealed the failure of the Council of the City of Toronto (“City”) to make a decision within the statutory timeframe on applications for a Zoning By-law Amendment (“ZBA”), pursuant to section 34(11) of the Planning Act, and a Site Plan Approval, pursuant to section 114(15) of the City of Toronto Act, sought for lands known municipally as 120-134 Sherbourne Street and 225-229 Queen Street East in the City (“Subject Site”).

2The purpose of the ZBA and Site Plan Approval is to allow for the development of a building with the following non-exhaustive particulars (“Proposal”):

a. A 34-37 storey building (overall height, including a 6 metre ("m”) mechanical penthouse, of 121.4 m), containing 478 units, 40 vehicular parking spaces, and 530 bicycle parking spaces;

b. Floors 35-37 step back ranging between 14.83 m and 16.57 m to remain consistent with the shadow line cast by a 34-storey building;

c. A total Gross Floor Area (“GFA”) of 28,262 square metres (“m2”) (reduced from 29,579 m2) including 27,750 m2 of residential GFA and 512 m2 of retail GFA, resulting in a Floor Space Index of 19;

d. The existing façades of the heritage-designated properties at 229 Queen Street East and 120-122 Sherbourne Street are to be conserved and incorporated into the three-storey base building; and

e. Two floors of amenity space on Levels 4 and 5 (9.0 m in height), where the original proposal included one amenity floor on Level 4 (a height of 4.5 m).

3A Case Management Conference (“CMC”) took place on November 8, 2022, wherein it was confirmed that adequate Notice had been provided and no further Notice would be required. Moreover, Participant status was granted to the St. Lawrence Neighbourhood Association (“SLNA”). A second CMC took place on February 27, 2023, wherein a Procedural Order and Issues List were verified and it was confirmed that Tribunal-led mediation was scheduled to take place in May 2023. It was additionally explained that, for the purposes of mediation only, the Participant SLNA would be treated as a Party and be involved to that extent.

4The Applicant and the City reached a settlement with respect to this matter. As such, this Hearing in writing took place to allow the Tribunal to consider and approve the settlement, if warranted.

5In support of the settlement, the Tribunal received the following materials:

a. EXHIBIT 1: The Affidavit of David Huynh with attached Exhibits;

b. EXHIBIT 2: A draft ZBA;

c. EXHIBIT 3: Conditions to be satisfied prior to the Final Order being Issued; and

d. A draft Order.

HEARING

6In support of the settlement, the Parties relied on an Affidavit by David Huynh sworn on October 5, 2023. The Curriculum Vitae and signed Acknowledgement of Expert Duty form for Mr. Huynh were provided, and confirm his expertise in the area of land use planning. Mr. Huynh is relied upon by the Tribunal and, without objection, he is qualified to provide expert opinion evidence in the field of Land Use Planning.

7The planning documents affecting this matter include: s. 2 of the Planning Act; the Provincial Policy Statement, 2020 (“PPS”); A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”); and the City of Toronto Official Plan (“City’s OP”).

8As Mr. Huynh explained, the ZBA revised by the settlement agreement:

a. Is consistent with the PPS, and specifically with policies relating to residential intensification, the efficient use of land and infrastructure, and heritage conservation;

b. Conforms to or does not conflict with the Growth Plan, and in particular conforms to the policies that seek to optimize the use of land and infrastructure and to encourage growth and intensification in “strategic growth areas”, including “urban growth centres” and “major transit station areas”;

c. Conforms to the City’s OP, the Downtown Secondary Plan, the in-force King-Parliament Secondary Plan, and Site and Area Specific Policy (“SASP”) No. 517. The Subject Site is designated Regeneration Areas, one of four land use designations intended to accommodate most of the increases in jobs and population anticipated by the City’s OP. Regeneration Areas are also intended to revitalize areas of the City that are largely vacant or underused and create new jobs and homes that use existing roads, transit, sewers, social services, and other infrastructure and create and sustain well-paid, stable, safe, and fulfilling employment opportunities. Further, growth is encouraged in the Mixed Use Areas 3 and the Mixed Use Area ‘D’ designations applying to the Subject Site, as set out in Downtown Plan and the King-Parliament Secondary Plan, respectively;

d. Meets the general intent and purpose of the City’s Guidelines, such as the Tall Building Design Guidelines and the Growing Up Guidelines;

e. Has appropriate regard for the new King-Parliament Secondary Plan (Official Plan Amendment 525), the Queen Protected Major Transit Station Area (“PMTSA”) (SASP 605), the Moss Park PMTSA (SASP 763), and the Corktown PMTSA (764), all of which have been adopted by the City, but are not yet approved and not yet in force. Notably, Moss Park, located north of the Subject Site, is the site of the future Moss Park Station on the Ontario Line. Construction activities have begun to take place immediately adjacent to the Subject Site at the southeast corner of the park; and

f. Is good planning and in the public interest.

9Mr. Huynh also opined that, from an urban design perspective, the ZBA as revised by the settlement agreement responds appropriately to the surrounding built form context and conforms to the applicable urban design policies of the City’s OP. In this respect, the Proposal has been refined and further articulated to reduce the perceived massing of the building from the public realm.

10Mr. Huynh concluded that the Subject Site is underutilized in its current low-rise form given the policy context set out in detail in his Affidavit. The Proposal, as detailed in the settlement agreement, will more efficiently utilize and optimize the use of land and infrastructure by providing a diverse mix of new housing in a transit-supportive compact built form, which is consistent with the policy directions of the PPS, and conforms to the Growth Plan, Official Plan and the Downtown Secondary Plan, which seek to integrate land use and transportation planning in identified intensification areas.

11According to Mr. Huynh, the ZBA, as revised by the settlement agreement, represents good planning and satisfies the legislative tests. He recommended that the Tribunal allow the appeals in part, approving the draft ZBA in principle, subject to the satisfaction of certain conditions, which he indicated were appropriate. The same recommendation was provided with respect to the Site Plan Approval appeal.

12Of note, as the Participant SLNA was treated as a Party with respect to the mediation, the concerns it raised were addressed by the settlement agreement.

FINDINGS

13The Tribunal accepts the uncontested evidence of Mr. Huynh, and finds that the requested ZBA: is consistent with the PPS; conforms with the Growth Plan; and conforms with the City’s OP, including the Downtown Secondary Plan and the in-force King-Parliament Secondary Plan, and has appropriate regard for OPA 524, OPA 570, OPA 525, and SASP 517. Moreover, the Tribunal finds that the ZBA, as revised by the settlement agreement, represents good planning in the public interest. As it meets the required legislative tests, the ZBA warrants approval subject to the conditions agreed to by the Parties.

INTERIM ORDER

14THE TRIBUNAL ORDERS that the Applicant’s Zoning By-law Amendment appeal is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in paragraph [15] and [17] of this Decision, and the Zoning By-law Amendment, identified as Exhibit 2 at this Hearing, to the City of Toronto’s Harmonized Zoning By-law No. 569-2013 is hereby approved, in principle.

15With respect to the Applicant’s ZBA appeal, namely OLT-22-004232, the TRIBUNAL ORDERS that the Tribunal will withhold issuance of its Final Order until the Tribunal has been advised in writing by the City Solicitor that the following outstanding matters have been completed and satisfied:

a. The Applicant has withdrawn its appeal of the King-Parliament Secondary Plan and implementing Zoning By-law (By-law 394-2021) to the Ontario Land Tribunal within Ontario Land Tribunal Cases OLT-21-001024 and OLT-21-00-1042, subject to confirmation that the Zoning By-law Amendments secured through Ontario Land Tribunal Case OLT-22-004232 prevail;

b. The final form and content of the draft Zoning By-law Amendment are to the satisfaction of the Chief Planner and Executive Director, City Planning, and the City Solicitor;

c. The Applicant has resubmitted the Functional Servicing and Stormwater Management Report and Hydrogeological Report, which includes confirmation of water, sanitary, and stormwater capacity, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, or the Chief Engineer and Executive Director, Engineering and Construction Services has determined that holding provisions are required in the Zoning By-law Amendment;

d. The Applicant has addressed all outstanding issues outlined in the Urban Forestry memo dated March 17, 2022, as they relate to tree planting, soil volume, utility conflicts, tree protection, and Toronto Green Standards, to the satisfaction of the Supervisor, Tree Protection and Plan Review;

e. The Applicant has submitted a Revised Heritage Impact Assessment that includes a conservation strategy for the properties at 229 Queen Street East and 120-122 Sherbourne Street, to the satisfaction of the Senior Manager, Heritage Planning;

f. The Applicant has entered into a Heritage Easement Agreement with the City for the properties at 229 Queen Street East and 120-122 Sherbourne Street substantially in accordance with the plans and drawings dated June 23, 2023, prepared by IBI Group and on file with the Senior Manager, Heritage Planning, the Heritage Impact Assessment dated November 4, 2021, and addendum dated June 22, 2023, prepared by ERA Architects Inc., all to the satisfaction of the Senior Manager, Heritage Planning, including execution and registration of such agreement to the satisfaction of the City Solicitor; and

g. The Applicant has provided a detailed Conservation Plan, prepared by a qualified heritage consultant, that is consistent with the conservation strategy set out in the Heritage Impact Assessment dated November 4, 2021, and addendum dated June 22, 2023, prepared by ERA Architects Inc., for 229 Queen Street East and 120-122 Sherbourne Street, to the satisfaction of the Senior Manager, Heritage Planning.

16With respect to the Applicant’s Site Plan Approval appeal, namely OLT-22-004233, the TRIBUNAL ORDERS that the Tribunal will withhold issuance of its Final Order until the Tribunal has been advised in writing by the City Solicitor that the following outstanding matters have been completed and satisfied:

a. The City has issued Notice of Approval Conditions to the satisfaction of the Chief Planner and Executive Director, City Planning; and

b. The Applicant has completed all required road widenings and conveyances to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.

17With respect to both appeals, namely OLT-22-004232 and OLT-22-004233, the TRIBUNAL ORDERS that the Tribunal will withhold issuance of its Final Order until the Tribunal has been advised in writing by the City Solicitor that the following outstanding matters have been completed and satisfied:

a. The Applicant has entered into a Heritage Easement Agreement with the City for the properties at 229 Queen Street East and 120-122 Sherbourne Street substantially in accordance with the plans and drawings dated June 23, 2023, prepared by IBI Group and on file with the Senior Manager, Heritage Planning, the Heritage Impact Assessment dated November 4, 2021, and addendum dated June 22, 2023, prepared by ERA Architects Inc., subject to and in accordance with the Conservation Plan required in Part b below, to the satisfaction of the Senior Manager, Heritage Planning, including execution of such agreement to the satisfaction of the City Solicitor; and

b. A detailed Conservation Plan has been provided to the City, prepared by a qualified heritage consultant that is consistent with the conservation strategy set out in the Heritage Impact Assessment dated November 4, 2021, and addendum dated June 22, 2023, prepared by ERA Architects Inc., for 229 Queen Street East and 120-122 Sherbourne Street, to the satisfaction of the Senior Manager, Heritage Planning.

18The Parties shall provide a written status update to the Tribunal by April 30, 2024, with respect to the finalization of the conditions for approval and whether the Tribunal can issue its Final Order. If the Parties fail to do so, the Tribunal may schedule, on a peremptory basis, a further Case Management Conference to address status matters.

19The Panel Member will remain seized with respect to these appeals for the purpose of the issuance of the Final Order.

“Bita M. Rajaee”

BITA M. RAJAEE 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.