Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 09, 2023
CASE NO(S).: OLT-22-002182
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: 1161 Kingston Road GP Inc.
Subject: Minor Variance
Description: to permit an 8 storey, 57-unit mixed use building
Reference Number: A0276/21SC
Property Address: 1161 Kingston Road
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-002182
OLT Lead Case No: OLT-22-002182
OLT Case Name: 1161 Kingston Road GP Inc. v. Toronto (City.)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, S.O. 2006, c. 11, as amended.
Subject: Site Plan
Description: to permit an 8 storey, 57-unit mixed use building
Reference Number: 20 230414 ESC 20 SA
Property Address: 1161 Kingston Road
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-21-001894
OLT Lead Case No: OLT-22-002182
OLT Case Name: 1161 Kingston Road GP Inc. v. Toronto (City.)
Heard: December 12, 2022, by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1161 Kingston Road GP Inc. | Matthew Lakatos-Hayward |
| City of Toronto | Sara Amini |
| Bernadette Crowe | Ian Flett |
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN AND C.I. MOLINARI AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This matter involves two appeals filed by 1161 Kingston Road GP Inc. (the “Appellant”) against the City of Toronto (the “City”). The first appeal is for the refusal of an Application for Minor Variance pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (the “Act”) and the second being the failure of the City to make a decision within the prescribed timeframe for a Site Plan Control Area application pursuant to s. 114(15) of the City of Toronto Act (the “CTA”). The applications affect the lands known municipally as 1161 Kingston Road (the “Subject Lands”) located at the south-easterly corner of Kingston Road and Courcelette Road.
2The Application for Minor Variance (“MVA”) and the Site Plan Control Area application (“SPA”) were submitted to facilitate the redevelopment of a former automobile service station use on the Subject Lands to permit an eight-storey mixed use building containing 57 residential units, grade related retail space, and below grade parking accessed from Courcelette Road.
3The Subject Lands are generally rectangular in shape with an area of approximately 1,360 square meters (“m2”), a frontage along Kingston Road of 38 meters (“m”), and a frontage along Courcelette Road of 33 m.
4At the first Case Management Conference (“CMC”) held on June 9, 2022, the Tribunal granted Party Status to Bernadette Crowe, the abutting neighbour to the south of the Subject Lands, and to Mr. John Hartley, a concerned area resident.
5The Tribunal, at the first CMC, also consolidated the two appeals accepting jurisdiction of the appeal of the MVA to consider the two matters, the MVA and the SPA appeal, together pursuant to the Tribunals Rules of Practice and Procedure.
6The Tribunal issued an Order on August 17, 2022, which established the Procedural Order (the “PO”) for the purpose of governing the procedures leading up to and including the scheduled hearing for this matter. The PO, amongst other matters, set dates for the submission of witness lists, exchanging witness statements, and the submission of expert reports and participant statements.
7On October 31, 2022, the Tribunal received correspondence from Mr. Lakatos-Hayward advising that his client had reached a settlement with the City and a separate settlement with Ms. Crowe.
8The Tribunal convened a Telephone Conference Call (“TCC”) on November 25, 2022 (the Tribunal’s Order was issued on December 1, 2022) in response to a request for direction from Mr. Lakatos-Hayward regarding the filing of hearing materials and the lack of compliance with the timelines established in the PO by Mr. Hartley, a Party to the proceedings. At the TCC the Tribunal, having considered the submissions from Mr. Hartley and lack of compliance with the PO, revoked Mr. Hartley’s party status. The Tribunal granted Mr. Hartley status as a Participant in the proceedings. Mr. Hartley was advised should he wish to submit a written participant statement for the Tribunal’s consideration, it shall be submitted to the Tribunal and the other parties no later than December 2, 2022.
9The Tribunal did not receive a participant statement from Mr. Hartley.
10The Tribunal convened these proceedings as a Settlement hearing.
LEGISLATIVE FRAMEWORK
11When considering an appeal of an application for site plan control filed pursuant to s. 114(15) of the CTA, the Tribunal is to consider the submitted plans or drawings in respect to provisions of s. 114(5) of the CTA.
12When considering an appeal of an application for minor variance filed pursuant to s. 45(12) of the Act, the Tribunal shall be satisfied that the tests as set out in s. 45(1) of the Act have been met. These tests are summarized as follows:
Does the requested minor variance maintain the general intent and purpose of the Official Plan?
Does the requested minor variance maintain the general intent and purpose of the Zoning By-law?
Is the requested minor variance desirable for the appropriate development or use of the land, building or structure? And
Is the requested minor variance minor in nature?
13The Tribunal is to also have regard to matters of provincial interest as set in s. 2 of the Act as well as have regard for the decision of the Municipality and the information it considered in the course of making its decision in accordance with s. 2.1(1) of the Act.
14S. 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (the “PPS”) and conform with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (the “GP”).
EVIDENCE AND SUBMISSIONS
15The Appellant filed an affidavit affirmed by Ryan Doherty, dated November 16, 2022, in support of the proposed settlement. Mr. Doherty is a Land Use Planner and the Tribunal qualified Mr. Doherty to provide expert opinion evidence in the area of Land Use planning. The Tribunal marked the Affidavit as Exhibit 1.
16The Appellant further filed a Document Book of Visual Evidence that was marked as Exhibit 2 and a Zoning By-law Notice from the City dated December 2, 2022, that was marked as Exhibit 3.
17Mr. Doherty directed to the Tribunal to Exhibit 2 and testified that the Subject Lands are located within the City’s Birchcliff community and are located approximately 1.6 km from the Victoria Park Subway station. There is a bus route along Kingston Road in front of the Subject Lands and a streetcar service to west of the Subject Lands at Victoria Park Avenue and Kingston Road.
18Exhibit 2 includes photographs and aerial mapping which Mr. Doherty used to describe the surrounding area context noting the newer developments which he opined complemented the proposed development with four to six storey street walls and stepping down to abutting lower density uses.
The Settlement Proposal
19Mr. Doherty described the Settlement Proposal. He testified that the proposed mixed-use building will be eight storeys with a height of 26.41 m. The development will be comprised of 57 residential units of which 26 units are two bedrooms or larger and will have 5,146 m2 of residential gross floor area and 225 m2 of non-residential gross floor area, a total amenity area of 267 m2, and a Floor Space Index of 3.95. A total of 34 vehicle parking spaces will be provided including one car share parking space and one visitor parking space and a total of 63 bicycle parking spaces. The proposed building will have a setback of 2.0 m to Kingston Road (a setback of 2.5 m at grade), a south lot line setback of 7.5 m, a 0.0 m setback to Courcelette Road, and an east lot line setback of 0.0 m.
20The proposed building will have a four-storey street wall along Kingston Road and will step-back above the fourth storey. The proposal provides a six-storey element at the corner of Kingston Road and Courcelette Road with step-backs at the seventh and eighth floors. The rear elevation (southerly elevation) will provide a three-storey element with a step back at each floor above the third. The rear elevation presents as four storeys in height as it includes the exposed basement level which occurs due to the topography of the Subject Lands. Vehicle and loading access will be at the rear of the building off a driveway which provides access from Courcelette Road. The service area will include one Type C loading space. The service area and driveway will be screened with a 1.5 m soft landscape strip and a fence proposed along the southern boundary.
21The Settlement Proposal includes an outdoor amenity area on the first storey at the southeast corner of the proposed building with a terrace area that includes plantings to minimize overlook and impact. There are two retail units and the residential lobby along the Kingston Road frontage with residential units proposed along the Courcelette Road frontage.
Proposed Conditions of Approval
22The Settlement Agreement between the Parties proposes conditions of approval which form part of the agreement between the Parties. There are four conditions applying to the MVA and two conditions which apply to the SPA application.
Proposed Conditions for the Minor Variance Application:
(i) The Owner shall construct the ground floor area fronting Kingston Road and the Kingston Road street yard substantially in accordance with Drawings A100 and A201 of the revised plans prepared by RAW Architects and Design, dated September 13, 2022, and Drawings L2.0 and L3.0 prepared by thinc design, dated September 12, 2022, all drawings being subject to Site Plan Approval Condition (i) listed below.
(ii) The Owner shall construct the southeast area of the proposed development on the property substantially in accordance with Drawings A100, and A201 of the revised plans prepared by RAW Architects and Design, dated September 13, 2022, and Drawings L2.0 and L3.0, prepared by thinc design, dated September 12, 2022, all drawings being subject to Site Plan Approval Condition (i) below.
(iii) The proposed development shall be constructed substantially in accordance with the revised plans appended as Schedule “C” to the Minutes of Settlement between the Owner and Ms. Bernadette Crowe, which for greater certainty are the revised architectural, landscape and civil engineering drawings filed with the OLT on September 13, 2022, subject to any minor revisions to the revised plans that may occur in the course of finalizing the drawings as required by the City of Toronto to issue site plan approval for the proposed development; and,
(iv) The Owner shall design the lighting for the subject site to meet or exceed the City of Toronto’s Best Practices for Effective Lighting (2017), which in any event, does not reasonably lead to light trespass from the subject site to 191 Courcelette Road.
Proposed Conditions for the Site Plan Control Area Application:
(i) The Owner shall prepare a final set of site plan drawings and submit to the City, to the satisfaction of the Chief Planner; and,
(ii) The Owner and the City shall prepare and finalize a set of conditions, to the satisfaction of the Chief Planner.
The Minor Variance Application
23Mr. Doherty reviewed the relief being sought in respect of the MVA as set out below. The former City of Scarborough Birchcliff Zoning By-law No. 8786 (the “ZBL”) applies to the Subject Lands.
Variance # 1 - Performance Standard 284, Zoning By-law No. 8786
24Performance Standard 284 of the ZBL permits a maximum building height of six storeys or 20 m, excluding basements and rooftop mechanical penthouses.
25The Appellant proposes a building height of eight storeys, with an overall height of 26.41 m, excluding privacy screens, generators, ladders, green roof elements, chimneys, skylights, vents, antennae, elevator machine rooms, and parapet walls measured from the Canadian Geodetic Elevation of 133.74 m.
Variance # 2 - Performance Standard 284, Zoning By-law No. 8786
26Performance Standard 284 of the ZBL permits a maximum gross floor area of 3.5 times the area of the lot or parcel.
27The Appellant proposes a gross floor area of 3.95 times the area of the lot.
Variance # 3 - Performance Standard 290, Zoning By-law No. 8786
28Performance Standard 290 of the ZBL requires a minimum building setback of 3 m from the lot line along Kingston Road for all uses permitted in the CR Zone, with the exception of dwelling units on the first floor.
29The Appellant proposes a building setback from the lot line along Kingston Road of 2 m excluding canopies used for weather protection.
Variance # 4 - Performance Standard 291, Zoning By-law No. 8786
30Performance Standard 291 of the ZBL requires a minimum building setback of 1.5m from a lot line abutting a public street other than Kingston Road.
31The Appellant proposes a building setback from the lot line along Courcelette Road of 0.0 m.
Variance # 5 - Performance Standard 293, Zoning By-law No. 8786
32Performance Standard 293 of the ZBL requires that buildings shall not exceed a 45-degree angular plane from the lot line of abutting Single-Family Residential (S), Two-Family Residential (T) and Multiple-Family (M) Zones.
33The Appellant proposes a building that exceeds a 45-degree angular plane measured from the mid-point of the lot line of the abutting Two-Family Residential (T) Zone.
Variance # 6 - Performance Standard 294, Zoning By-law No. 8786
34Performance Standard 294 of the ZBL requires a minimum 7.5 m building setback from the rear lot line abutting Single-Family Residential (S), Two-Family Residential (T) and Multiple-Family (M) Zones. The ZBL defines Courcelette Road as the front lot line as the site is located on a corner lot and Courcelette Road is the shorter of the two frontages.
35The Appellant proposes a building providing a 0m setback from the east lot line which is defined as the rear lot line in this instance.
Variance # 7 - Performance Standard 296, Zoning By-law No. 8786
36Performance Standard 296 of the ZBL requires that for that portion of a building above 14 m in height, buildings shall be stepped back an additional 1.5 m from the main wall abutting a public street.
37The Appellant proposes a building which at 14 m in height, proposes a step-back from 0 m to 2.0 m from the front main wall along Kingston Road and proposes a 0 m step-back from the front main wall along Courcelette Road.
Variance # 8 - Performance Standard 300, Zoning By-law No. 8786
38Performance Standard 300 of the ZBL requires a minimum floor to ceiling height of the first floor shall be 4.5 m for buildings or structures.
39The Appellant proposes a floor to ceiling height of the first floor of 3.5 m.
Variance # 9 – Clause VI (12)(2), Zoning By-law No. 8786
40Clause VI (12)(2) of the ZBL requires that in areas designated on Schedule "A" as "CR", the lands not covered by permitted buildings, structures and required parking spaces, shall be used only for landscaping, 50% of which shall be soft landscaping. Outdoor patio areas ancillary to a non-residential use in the "CR" Zone shall not be considered landscaping and shall be permitted.
41The Appellant proposes lands not covered by permitted buildings, structures and required parking spaces, may be used for landscaping as well as driveways, loading or parking spaces, walkways and electrical elements and directly associated elements such as curbs or retaining walls, of which a minimum of 123.15 m² shall be used for landscaping, consisting of a minimum 97.98 m² or 79% soft landscaping.
Variance # 10 – Clause VI (19), Zoning By-law No. 8786
42Clause VI (19) of the ZBL requires that in areas designated in Schedule "A" as "CR", the basement shall be used only for storage purposes for the occupants of the building.
43The Appellant proposes that basement level P1 shall be used for storage purposes for the occupants of the building and in addition shall be used for indoor residential amenity space and mechanical and electrical rooms.
Variance # 11 – Clause VII (1)(1), Zoning By-law No. 8786
44Clause VII (1)(1) of the ZBL requires a total of 59 parking spaces are provided, consisting of 57 resident spaces, no visitor spaces and two non-residential spaces.
45The Appellant proposes a total of 34 parking spaces shall be provided, consisting of 32 resident spaces, one car share space and one residential visitor / non-residential parking space. Four of the proposed parking spaces will be designated small car spaces.
Variance # 12 – Clause VII (1)(4)(1), Zoning By-law No. 8786
46Clause VII (1)(4)(1) of the ZBL requires the minimum dimensions of a parking space accessed by a 6 m wide drive aisle shall be 5.6 m in length, 2 m in height and 2.6 m in width and where accessed by a less than 6 m wide drive aisle shall be 5.6 m in length, 2 m in height and 3 m in width.
47The Appellant proposes that bicycle parking spaces may encroach into or obstruct a required vehicle parking space provided that the encroachment is no more than 0.6 m into the length of the required parking space.
Variance # 13 – Clause VII (1)(4)(1), Zoning By-law No. 8786
48Clause VII (1)(4)(1) of the ZBL requires the minimum dimensions of a parking space accessed by a 6 m wide drive aisle shall be 5.6 m in length, 2 m in height and 2.6 m in width and where accessed by a less than 6 m wide drive aisle shall be 5.6 m in length, 2 m in height and 3 m in width.
49The Appellant proposes a total of four designated small car parking spaces will be provided. Where the drive aisle has a width of 6 m or greater, the proposed building will contain two small car parking spaces which will have a minimum width of 2.6 m and a minimum length of 5.6 m, despite being obstructed on one or two sides. Where the drive aisle has a width of less than 6 m, the proposed building will contain two small car parking spaces, which have a minimum width of 2.9 m and a minimum length of 5 m, despite being obstructed on one or two sides.
Variance # 14 – Clause VII (1)(4)(2)(3), Zoning By-law No. 8786
50Clause VII (1)(4)(2)(3) of the ZBL requires that for uses other than those set out in Subsections 1.4.2.1 and 1.4.2.2, a driveway shall have a minimum width of 3 m per lane.
51The Appellant proposes that the proposed two-way driveway has a minimum width of 3.5 m.
52Mr. Doherty reviewed three additional areas of non-compliance identified by the City in Exhibit 3, the Zoning By-law Notice. The additional items are:
Variance # 15 – Performance Standard 205, Zoning By-law No. 8786
53Performance Standard 205 of the ZBL requires that bicycle parking spaces shall be provided at the rate of 0.5 bicycles per dwelling unit, of which 80% is for occupant use, and 20% is for visitor use. Bicycle parking spaces shall not be provided within a dwelling unit or on a balcony associated therewith, and shall be provided as follows:
where the bicycles are to be parked in a horizontal position, the space shall have horizontal dimensions of at least 0.6 m by 1.8 m per bicycle and a vertical dimension of at least 1.9 m;
where the bicycles are to be parked in a vertical position, the space shall have horizontal dimensions of at least 0.6 m by 1.2 m per bicycle and a vertical dimension of at least 1.9 m;
resident bicycle parking spaces shall be located in a secured room or area; and,
visitor bicycle parking spaces shall be located outside on the ground floor or first underground parking level in a publicly accessible area.
54For parking spaces with associated bicycle parking spaces, the Appellant proposes to include a bicycle parking space within the overall length of the vehicle parking space located within the parking garage structure and advised that the vehicle and bicycle parking space would be assigned to a single unit owner.
Variance # 16 – Performance Standard 301, Zoning By-law No. 8786
55Performance Standard 301 of the ZBL requires that no person shall erect or use a building containing 20 or more dwelling units unless amenity space or contiguous amenity space is provided, at least one of which contains a kitchen and a washroom, at a rate of a minimum of 2 m2 of amenity space for each dwelling unit. Further where amenity space is located outdoors, it shall be provided at a rate of a minimum of 2 m2 of amenity space for each dwelling unit of which at least 40 m2 is to be provided in a location adjoining or directly accessible from the indoor amenity space.
56Mr. Doherty advised that he believes that the proposal complies with the identified section; however, there appears to remain some confusion over the interpretation of the provisions of the ZBL and as such, the Appellant is requesting relief from the section subject to confirmation of the exact relief required, if any.
Variance # 17 – Performance Standard 298, Zoning By-law No. 8786
57Performance Standard 298 of the ZBL requires a minimum 1.5 m strip of land immediately abutting Single-Family Residential (S), Two-Family Residential (T), and Multiple-Family (M) Zones shall be used for soft landscaping purposes only.
58The Appellant proposes a minimum width of 1.5 m strip of soft landscaping along the south lot line and a 0.7 m strip of soft landscaping along the portion of the east lot line abutting a residential zone.
Planning Evidence
59Mr. Doherty reviewed s. 2 of the Act and directed the Tribunal to s. 2 (e), (f), (h), (j), (n), (p), (q), and (r) and proffered that the Settlement Proposal provides for the redevelopment of an underutilized property currently occupied by a vehicle service station with an eight-storey mid-rise building containing 57 residential dwelling units and 225 square metres of at grade retail commercial space. He opined that the Subject Lands represents an appropriate location for the proposed level of intensification given its location along a Major Arterial road served by existing municipal infrastructure, including transit. The Settlement Proposal will provide for the orderly development of the Birchcliff Community, will encourage the use of active and public transportation, will assist in meeting the housing demand in the City, has been designed to reflect the planned land use context for the Subject Lands, and will provide a built form that respects adjacent uses in a manner that is consistent with the existing land use context. Mr. Doherty further opined that the Settlement Proposal has been designed to encourage the efficient use of energy and water through the incorporation of geothermal energy and water-reuse technologies.
60It is Mr. Doherty’s opinion that the Settlement Proposal has appropriate regard for the matters of provincial interest as set out in s. 2 of the Act.
61In consideration of the PPS, Mr. Doherty, in his Witness Statement, reviewed the applicable policies in sections 1.1, 1.4, 1.6, 1.7, and 1.8, concluding that the Settlement Proposal is consistent with these policies as it will re-utilize a low-intensity vehicle service station with a mixed-use development promoting a density, a range of housing and supporting retail commercial uses that will efficiently utilize existing infrastructure and will result in a transit supportive development. In addition, Mr. Doherty found that the Settlement Proposal optimizes the use of land, resources, infrastructure and public service facilities, and has been designed to support energy conservation and efficiency.
62Mr. Doherty opined that the Settlement Proposal including the recommended conditions of approval is consistent with the PPS.
63In consideration of the GP, Mr. Doherty’s Witness Statement provided a review of the relevant policies in the Policies for Where and How to Grow section including those in sections 2.2.1, 2.2.2, 2.2.4, 2.2.5, and 2.2.6. The Moving People policies set out in section 3.2.3 are referenced and the Climate Change policies in section 4.2.10 are also reviewed.
64Mr. Doherty opined that the Subject Lands are located within the City which is an existing delineated built-up urban area as defined by the GP. The GP encourages intensification generally throughout the delineated built-up area and both the GP and the PPS speak to optimizing the use of land and infrastructure. Mr. Doherty proffered that the Subject Lands are well served by existing municipal infrastructure, including major roads, transit, and community facilities. Further, the Subject Lands are within a “strategic growth area” as defined by the GP which are to be a focus for accommodating intensification and higher-density mixed-use uses in a more compact built form. The provision of new retail commercial use at grade will enhance and enliven the character of Kingston Road. The proposed mix of higher density residential and commercial uses on the site in proximity to the streetcar service and broader subway service will promote transit ridership, active forms of transportation and will support the achievement of a complete community as promoted in the GP.
65Mr. Doherty stated that it is his opinion that the Settlement Proposal and the recommended conditions of approval conform to the policies of the GP.
66In consideration of the City’s Official Plan (the “OP”), Mr. Doherty testified that the portion of Kingston Road where the Subject Property is located is designated Avenues on Map 2 of the OP and Kingston Road is identified as a Major Arterial road with a planned right-of-way width of 20 m. The Subject Lands are within the Mixed Use Areas Land Use designation on Map 21 of the OP.
67Mr. Doherty testified that the Growth Management policies found in section 2.2 of the OP direct growth to areas where transit services and other infrastructure are available including the Avenues. Policy 2.2 (2) sets out several objectives that can be met by this strategy, including: using municipal land, infrastructure and services efficiently; concentrating jobs and people in areas well served by transit; promoting mixed use development to encourage walking and cycling for local trips; facilitating social interaction, public safety and cultural and economic activity; improving air quality and energy efficiency and reducing greenhouse gas emissions; and, protecting neighbourhoods and green spaces from the effects of nearby development.
68Section 2.2.3 entitled Avenues: Reurbanizing Arterial Corridors states that reurbanization along Avenues can create new housing and jobs while improving the pedestrian environment, the look of the street, shopping opportunities and transit service for community residents. Section 2.2.3 sets out that the framework for new development along each Avenue is to be established through the preparation of “Avenue Studies” for particular segments of designated Avenues. The framework for development along the Kingston Road Avenue was established through the Kingston Road Revitalization Study and By-law 1055-2013, which identified the Subject Site as suitable for a mid-rise building.
69Mr. Doherty testified that the Mixed Use Areas designation permits a broad range of commercial, residential, and institutional uses. The OP sets out that development in Mixed Use Areas will create a balance of high-quality commercial, residential, institutional and open space uses that reduces automobile dependency and meets the needs of the local community and will provide for new jobs and homes on underutilized lands along the Avenues. Policy 4.5 of the OP sets out several criteria for development within Mixed Use Areas which address massing, shadow impact, transition between adjacent areas of lower built form, frame the street edge with good proportion, maintain sunlight and comfortable wind conditions for pedestrians on adjacent streets, parks and open spaces, support transit, provide resident amenity space, and energy conservation and green infrastructure opportunities.
70Mr. Doherty opined that the Settlement Proposal achieves the goals of the Avenues classification and Mixed Use Areas designation applying to the Subject Lands by providing new mid-rise housing options and retail commercial space in a compact, transit supportive format, that re-urbanizes and re-animates the Subject Lands in a manner consistent with the OP. He continued that the introduction of approximately 57 new dwelling units and a total combined residential and non-residential gross floor area of 5,371 m2 will support the broader intensification objectives of the OP in directing growth to underutilized sites along the Avenues.
71In consideration of infrastructure policy, Mr. Doherty testified that the required site servicing and stormwater management reports have been submitted to the City and updated as required throughout the process. A Transportation Impact Study has been completed and filed with the City supporting the Settlement Proposal. The City has indicated the findings of the reports are acceptable in principle and Mr. Doherty confirmed that the reports will be revised as required through the finalization of the SPA process.
72Section 3.1.1 of the OP emphasizes the importance of the public realm as the central organizing element of the City and its neighbourhoods and sets out direction as it relates to the design of both public and accessible private spaces that form part of the broader public realm. Section 3.1.1 contains policies that recognize City streets are significant public open spaces which connect people and places and support the development of sustainable, economically vibrant and complete communities. Further, the policies state that the design of sidewalks and boulevards will provide safe, attractive, interesting and comfortable spaces for users of all ages and abilities.
73Policies in section 3.1.3 address the built form. Mr. Doherty reviewed the relevant policies in detail testifying that the principles speak to the relationship between the location and organization of development, its massing and the interface between the building and the public realm. The Built Form policies included in policy 3.1.3(1) set out that development will be located and organized to fit with its existing and planned context and to frame and support adjacent streets, lanes, parks and open spaces by generally locating buildings parallel to the street with consistent front yard setbacks; locating main building entrances on prominent building facades so that they front onto and are visible and directly accessible from a public street; providing ground floor uses; preserving existing mature trees wherever possible; and providing comfortable wind conditions and air circulation at the street and adjacent open spaces. Further policies in 3.1.3 address privacy, location of access, parking, loading and service areas, massing and street wall heights, transition in scale with surrounding uses and building heights, the promotion of civic life and the public realm.
74Section 3.1.4 of the OP speaks specifically to mid-rise buildings stating that they are considered to be a transit-supportive form of development that provides a level of intensification at a scale between low-rise and tall building forms. Mid-rise building heights are contextual and are informed by the width of the right-of-way onto which they front. Policy 3.1.4(4) states that mid-rise buildings will be designed to have heights that are generally no greater than the width of the right-of-way that it fronts onto, maintain appropriate street proportion and open sky views from the public realm by stepping back building massing generally at a height equivalent to 80% of the adjacent right-of-way width, and allow for daylight and privacy on occupied ground floor units through the provision of appropriate facing distances, building heights, angular planes, and step-backs.
75Mr. Doherty opined that from a public realm and built form perspective, the Settlement Proposal’s mid-rise design represents a contemporary response to the apartment buildings within the immediate surrounding area and reflects the emerging mixed-use commercial character along this segment of Kingston Road. The inclusion of commercial uses in the form of grade related retail commercial space will help to activate this corner lot and provide an improved pedestrian experience along Kingston Road, while the proposed residential units will provide for an active frontage along Courcelette Road. The proposed building is set back by a minimum 2.5 m from the Kingston Road property line on the ground floor and 2.0 m above, which will ensure that there is sufficient space for a 2.1 m wide public sidewalk, 0.8 m curb edge zone, new tree plantings, and required underground utilities. The proposed retail commercial spaces will be articulated with clear transparent glazing and will be directly accessible and visible from the public sidewalk.
76In terms of the overall massing, Mr. Doherty proffered his opinion that the Settlement Proposal conforms with the built form policies of the OP. The Settlement Proposal will provide for an eight-storey building mass sited parallel to the Kingston Road frontage with good street proportion, articulated with a four-storey street wall, increasing to six storeys at the corner of Kingston Road and Courcelette Road resulting in a street wall that is generally equivalent to approximately 65% of the Kingston Road right-of-way width. Above the height of the four-storey street wall, the Settlement Proposal introduces progressive step-backs at Levels 5, 7 and 8, providing for a highly articulated massing that is consistent within the context of mid-rise buildings facing Kingston Road. On the west facing elevation along Courcelette Road, the Settlement Proposal provides for a six-storey element at the corner with step-backs at Levels 7 and 8, with a downward transition in height as the building extends southward. Mr. Doherty continued that due to the provision of geothermal heating and cooling equipment in the basement, the building will not feature a standard projecting mechanical penthouse, further reducing the potential visual massing and built form impacts on adjacent properties and the public realm. At grade, the proposed residential and retail entrances will be located along the primary building façade along Kingston Road, will be directly accessible and will have clear views to and from the public realm. All vehicle parking, loading and service functions will be located internally within the building and accessed from the rear of the building. The parking, loading, and servicing entrances will be screened from abutting properties by way of a 1.8 m tall fence and 1.5 m wide landscaping buffer along the south lot line. The Settlement Proposal has been designed in a manner to provide adequate transition in height and scale to the adjacent Neighbourhoods designated areas to the south and the southeast.
77Mr. Doherty testified that the Settlement Proposal has been designed to utilize water and energy conservation technologies, including geothermal heating and cooling, a green roof system and electric vehicle parking spaces, among other measures, to reduce the environmental impact of the building. The proposed building is intended to achieve Tier 2 of the Toronto Green Standard and a LEED - Platinum Certification thereby meeting the intent of the Natural Environment policies of section 3.4 of the OP.
78Mr. Doherty concluded stating that it is his opinion based on his submissions, the Settlement Proposal meets the general intent and purpose of the OP and the proposed site plan and the conditions recommended conform to the policies of the OP.
79Mr. Doherty concluded that the Settlement Proposal meets the general intent and purpose of the ZBL by ensuring that the proposal results in a built form and massing that is appropriate for the Subject Lands. The requested height is appropriate for a mid-rise building and in keeping with other comparable buildings within the area. The increase in FSI will create a more functional building which can accommodate larger units providing an appropriate range of unit types. The setback relief being sought is appropriate in the context of the proposed building. The Angular Plane relief is appropriately addressed through the terraced step-backs proposed. The proposed step-backs will result in a highly articulated and varied street wall condition along Kingston Road which meets the general intent of the performance standards. The parking reduction is supported by a Transportation Impact Assessment and the reduction in parking space dimensions to accommodate a bike parking space within the same parking space is a functional and appropriate solution.
80Mr. Doherty opined that the variances enumerated in his testimony are minor in nature and will not create any adverse impact when considered in their overall context. He concluded that the Settlement Proposal will result in a development that is desirable and appropriate for the Subject Lands as the replacement of a service station use on an underutilized parcel of land with a mid-rise building on a Major Arterial road is an efficient use of lands and the proposed eight storey building is consistent with the direction provided in the Kingston Road Revitalization study.
81Mr. Doherty reviewed the recommended conditions of approval proffering that the conditions are appropriate should the Tribunal allow the appeals.
82The City confirmed that they support the Settlement Proposal presented before the Tribunal. The Draft Order filed with the Tribunal is on consent and Ms. Amini requested that the conditions included be attached to any Order allowing the appeal and approving the Settlement Proposal.
83Mr. Flett confirmed that his client has negotiated a positive settlement with the Appellant and supports the Settlement Proposal before the Tribunal.
ANALYSIS AND FINDINGS
84The Tribunal accepts the uncontroverted planning opinion evidence of Mr. Doherty in support of the Settlement Proposal. The Tribunal further acknowledges the settlement reached between the Appellant and the City and between the Appellant and the neighbour, Ms. Crowe, addressing the issues surrounding the appeal.
85Having regard for the matters of provincial interest as set out in s.2 of the Act, the Tribunal finds the Settlement Proposal provides for the appropriate redevelopment of an underutilized property. The Subject Property represents an appropriate location for the level of intensification proposed as it is situated on a Major Arterial road which is well served by existing municipal infrastructure, including transit. The Settlement Proposal will provide for the orderly development of the community and contribute to meeting the housing demand in the City. The Tribunal finds that the proposed built form respects the adjacent existing land use context, and the design implements technologies that will make efficient use of energy and water resources.
86The Tribunal finds that the Settlement Proposal and the conditions of approval recommended are consistent with the policies of the PPS. The Tribunal, in consideration of the applicable policies contained with the PPS, notes that the direction contained in the policies relating to residential intensification and the efficient use of land and infrastructure have particular relevance in the context of this matter. The Tribunal notes that the PPS emphasizes the promotion of transit-supportive development and encourages an increase in the mix and supply of housing.
87The GP emphasizes the optimization of the use of land and infrastructure and in particular transit infrastructure. The Tribunal accepts the evidence of the Appellant’s planner and finds that the Settlement Proposal conforms to the policies of the GP as it contributes to the creation of a complete community and appropriately optimizes the use of the Subject Lands and supports the transit infrastructure investments of the City and Province. The Subject Lands are well served by existing municipal infrastructure and is located on a Major Arterial road which is well served by transit and in good proximity to multiple community facilities. The Tribunal accepts the opinion proffered that the Subject Lands are within a Strategic Growth Area as defined in the GP and which are to be a focus for accommodating intensification and higher-density mixed-use uses in a more compact built form.
88In consideration of the OP, the Tribunal finds that the Subject Lands are an appropriate location for a mid-rise building given the location on Kingston Road which is identified as a Major Arterial road and designated Avenues in the OP Urban Form mapping. The OP directs growth and re-urbanization to be located on roads within the Avenues designation. The Subject Lands are designated as Mixed Use Areas within the Land Use policies designation which provides for a broad range of commercial, residential, and institutional uses in mixed-use buildings and anticipates that lands within this designation will absorb much of the new housing to be built in the City. The OP supports and anticipates intensification within the Mixed-Use Areas along streets with the Avenues designation. The Tribunal finds that the Settlement Proposal achieves these goals as set out in the OP.
89The Tribunal finds that the Settlement Proposal’s mid-rise design reflects the emerging mixed-use commercial character along this segment of Kingston Road and the inclusion of grade related commercial uses will activate this corner lot and provide an improved pedestrian experience along Kingston Road. The overall massing conforms to the intent and purpose of the OP and will appropriately frame Kingston Road and the intersection with Courcelette Road with good street proportion. The Settlement Proposal provides for an appropriate transition in height and scale to the adjacent Neighbourhoods designated areas to the south and southeast and incorporates appropriate buffers and screening to ensure privacy and minimize impacts.
90The Tribunal finds the Settlement Proposal conforms with the applicable housing policies of the OP as the proposal will result in the construction of new housing on an underutilized site in a compact, transit supportive urban form that provides a mix of housing types. The Settlement Proposal has been designed to utilize water and energy conservation technologies, including geothermal heating and cooling, a green roof system, and electric vehicle parking spaces in response to the Environmental policies of the OP.
91The Tribunal is satisfied that the Settlement Proposal maintains the general intent and purpose of the OP. The Tribunal finds that the SPA as described in the Settlement Proposal and the recommended conditions of approval conform to the OP.
92The Subject Lands are currently zoned CR – Commercial Residential in the ZBL and include numerous site-specific provisions which permit, among other uses, a mixed-use building. The Tribunal’s review and consideration of the individual items of relief being sought in respect to the MVA finds that the Settlement Proposal maintains the general intent and purpose of the ZBL. The Tribunal accepts the Appellant’s submission that the intent of the ZBL is to regulate built form, massing, and transition to adjacent uses and is satisfied that the Settlement Proposal results in an appropriate response to the intent and purpose of the ZBL.
93The Tribunal finds that the requested variances are minor in nature. The impact of the individual variances has been mitigated through design or are technical in nature and do not result in a discernable impact. The support of the immediate neighbour to the south, subject to the terms and conditions of their Minutes of Settlement, confirms that the impacts on the neighbour have been addressed. The City’s support for the Settlement Proposal similarly confirms the impacts of the requested variances are appropriately mitigated.
94The Settlement Proposal will result in the replacement and remediation of an existing automotive service station with a mid-rise, mixed-use building that will provide additional housing options and commercial uses in a transit supportive manner on a Major Arterial road and Avenue identified in the OP. The Tribunal concludes that the minor variances are desirable for the appropriate development and use of the Subject Lands.
95The Tribunal finds that the Settlement Proposal is in the public interest and represents good planning. The conditions of approval recommended are appropriate.
96The Tribunal allows the appeal and approves the MVA and SPA in principle subject to the conditions as set out in this decision.
97The Tribunal will withhold its final order in respect of the MVA appeal until the Appellant and City provide confirmation of the variances required. Should the final list include relief that, in the opinion of the Tribunal, is significantly or substantially different than those variances considered in this decision, the Tribunal may request additional submissions to support the variances identified as referenced above.
98Further, the Tribunal will withhold its final order in respect of the SPA appeal until the Parties have provided the Tribunal with confirmation that the conditions as set out in Attachment 2 to this decision have been fulfilled.
ORDER
99THE TRIBUNAL ORDERS that in accordance with s. 45(9), 45(18), and 45(18.1) of the Planning Act, R.S.O. 1990, c. P. 13 as amended, the appeal is allowed in part and the variances to Zoning By-law No. 8786 are authorized subject to the conditions provided for in Attachment 1 to this Order, with the final order withheld until such time as the Parties provide a final list of the requested variances, satisfactory to the Chief Planner of the City of Toronto, to the Tribunal. The Tribunal reserves the right to request supplementary evidence from the Appellant in support of any further variances that may be identified.
100THE TRIBUNAL ORDERS that in accordance with s. 114(16) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, as amended, the draft site plan is approved in principle, and the Site Plan Appeal is allowed in part, with the final order withheld until such time as the Parties provide written confirmation to the Tribunal that the conditions provided for in Attachment 2 have been satisfied.
101THE TRIBUNAL ORDERS that in the event the Parties do not provide confirmation that the contingent pre-requisites of the Site Plan Appeal have been satisfied by October 31, 2023, the Parties shall provide a written status report to the Tribunal.
102The Panel shall remain seized of this matter for the purposes of reviewing and approving the final draft site plan and the Notice of Approval Conditions, the final list of variances, and the issuance of the Final Order.
103The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call in the event any difficulties arise in fulfilling the conditions of this Order.
“David Brown”
DAVID BROWN
MEMBER
“C. I. Molinari”
C. I. MOLINARI
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 CONDITIONS OF MINOR VARIANCE APPROVAL
The Owner shall construct the ground floor area fronting Kingston Road and the Kingston Road street yard substantially in accordance with Drawings A100 and A201 of the Revised Plans prepared by RAW Architects and Design, dated September 13, 2022, and Drawings L2.0 and L3.0 prepared by thinc design, dated September 12, 2022, all drawings being subject to Site Plan Approval Condition 1 below.
The Owner shall construct the southeast area of the proposed development on the Property substantially in accordance with Drawings A100, and A201 prepared by RAW Architects and Design, dated September 13, 2022, and Drawings L2.0 and L3.0, prepared by thinc design, dated September 12, 2022, all drawings being subject to Site Plan Approval Condition 1 below.
The proposed development shall be constructed substantially in accordance with the revised plans appended as Schedule “C” to the Minutes of Settlement between the Owner and Ms. Bernadette Crowe, appended as Exhibit “M” to the Affidavit of Ryan Doherty being Exhibit 1 filed with the Tribunal, which for greater certainty are the revised architectural, landscape and civil engineering drawings filed with the Tribunal on September 13, 2022, subject to any minor revisions to the revised plans that may occur in the course of finalizing the drawings as required by the City of Toronto to issue site plan approval for the proposed development; and
The Owner shall design the lighting for the Subject Site to meet or exceed the City of Toronto’s Best Practices for Effective Lighting (2017), which in any event, does not reasonably lead to light trespass from the Subject Site to 191 Courcelette Road.
ATTACHMENT 2 CONDITIONS OF SITE PLAN APPROVAL
The Owner shall submit a final set of site plan drawings to the City of Toronto, to the satisfaction of the Chief Planner of the City of Toronto; and
The Owner and the City of Toronto shall finalize a set of conditions for approval of the Site Plan drawings, to the satisfaction of the Chief Planner of the City of Toronto.