Ontario Land Tribunal
Tribunaux de l’aménagement du territoire Ontario
655 Bay Street, Suite 1500 Toronto ON M5G 1E5
655 rue Bay, suite 1500 Toronto ON M5G 1E5
Telephone: Toll Free: Website:
(416) 212-6349 1-866-448-2248 olt.gov.on.ca
Téléphone: Sans Frais: Site Web:
(416) 212-6349 1-866-448-2248 olt.gov.on.ca
March 28, 2023
TO: All recipients of the Ontario Land Tribunal’s Decision and Order issued on January 16, 2023 and the Replacement issued on February 8, 2023
RE: OLT CASE NO.: OLT-22-002413 (Formerly PL210317), DECISION AND ORDER ISSUED JANUARY 16, 2023 AND THE REPLACMENT DECISION ISSUED ON FEBRUARY 8, 2023
On January 16, 2023, the Ontario Land Tribunal issued its Decision and Order (“Decision”) on the above noted case. On February 8, 2023, a Replacement Decision was issued correcting the issued Decision and Order. That Replacement Decision replaced Attachment 1 to the Decision with the document that was thought to be the correct, and most recent, updated version of the Zoning By-law Amendment.
It has now been determined that the version of the Zoning By-law Amendment appended to the Replacement Decision was still not the correct version of the instrument before the Tribunal at the hearing, and approved by the Tribunal, because it contained prior and incorrect versions of the diagrams.
Rule 24.4 of the Ontario Land Tribunal’s Rules of Practice and Procedure states that the Tribunal may at any time correct a technical or typographical error made in a decision or order.
The Tribunal now further corrects the original Decision under the authority of this Rule by replacing Attachment 1 to the Decision, with a new Attachment 1 being the correct, and most recent, version of the Zoning By-law Amendment approved by the Tribunal at the hearing, inclusive of the correct diagrams.
A corrected version of the Decision issued on January 16, 2023, is enclosed with this communication. This enclosed Decision replaces the Decision issued on January 16, 2023, and the Replacement Decision issued on February 8, 2023.
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
Encl.
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 16, 2023
CASE NO(S).:
OLT-22-002413
(Formerly PL210317)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
950 King Street West Holdings Inc.
Subject:
Application to amend Zoning By-law No. 438-86 – Refusal or neglect of City of Toronto to make a decision
Purpose:
To permit a 14-storey mixed use building
Property Address:
938-950 King Street West and 95-99 Strachan Avenue
Municipality:
City of Toronto
Municipality File No.:
18 153602 STE 19 OZ
OLT Case No.:
OLT-22-2413
Legacy Case No.:
PL210317
OLT Case Name:
950 King Street West Holdings Inc. v. Toronto (City)
Heard:
July 18, 2022 by video hearing
APPEARANCES:
Parties
Counsel
950 King Street West Holdings Inc.
Brendan O’Callaghan
City of Toronto
Abbie Moscovich
1173044 Ontario Holding
Michael Foderick
King West Co. (736921 Ontario Ltd.)
Russell Cheeseman
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON JULY 18, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matters before the Ontario Land Tribunal (the “Tribunal”) are appeals filed by 950 King Street West Holdings Inc. (“Appellants”) under s. 34(11) of the Planning Act (“Act”) regarding the proposed Application to amend Zoning By-law No. 438-86 (the draft “ZBA”)
2This was scheduled as a ten (10) day hearing.
3The Tribunal was informed at the onset of the hearing that Mr. Foderick, Counsel for 1173044 Ontario Holding, wished to withdraw their Issues from “the Issues List”.
4Mr. Foderick stated that they will not withdraw their status.
5The Parties had no objections to the withdrawal request. It was noted by the Tribunal, for the record, that 1173044 Ontario Holding withdraws from the Issues List.
6The Tribunal was informed that an additional matter was to be dealt with prior to the commencement of the hearing.
7Mr. Cheeseman, Counsel for King West Co. (736921 Ontario Ltd.) had issued a summons to appear for Lynda MacDonald. Ms. MacDonald is a Professional Planner and Director of Community Planning for Toronto and East York District.
8There were objections by Mr. O’Callaghan, Counsel for 950 King Street West Holdings Inc. and Ms. Moscovich, Counsel for the City of Toronto.
9Accordingly, Mr. O’Callaghan and Ms. Moscovich are of the opinion that Mr. Cheeseman did not follow the Procedural Order on record regarding the issuance of the Witness List and the timelines in effect within the Procedural Order.
10Mr. Cheeseman replied that his request was a matter of fairness to his client.
11The Tribunal having heard the Parties’ statements, determines that:
a) There are matters of procedure that must be adhered to,
b) Ms. Macdonald’s report is part of the record,
c) The Tribunal is of the opinion that Ms. MacDonald’s testimony will not alter the proceedings and that Mr. Cheeseman’s client will not be prejudiced
d) The onus is on Mr. O’Callaghan to convince the Tribunal that the appeal is valid.
12The Tribunal ruled that Ms. Macdonald will not appear to testify.
13During the hearing procedures, the Tribunal was informed that all Parties had come to an agreement to rely on the testimony of the witnesses for the 950 King Street West Holdings Inc.
14The Tribunal qualified and affirmed the Appellant’s Planner Peter Smith to provide expert land use planning evidence, Architect Dermot Sweeny to provide expert Architectural, Urban Design and Heritage evidence and Transportation Planner Richard Pernicky to provide expert evidence. The testimony of these witnesses was not contested and accepted in their entirety.
PROPOSAL OVERVIEW
15The Tribunal heard the proposed development consists of a 14-storey mixed-use building (49.95 metres including mechanical penthouse), including a 3-storey base building with retail and residential uses at-grade and residential uses on Level 2 and above. The building is comprised of 12,550 square metres (“sq m”) of gross floor area, including 123 sq m of commercial retail space at-grade, as well as one level of below-grade parking. A total of 192 12 rental residential dwelling units are proposed, including 16 studio units, 102 one-bedroom units, 51 two-bedroom units, 15 three-bedroom units and 8 live-work units. A total of 14 car parking spaces and 199 bicycle parking spaces are proposed. The proposed development will have a density of 9.17 Floor Space Index.
EVIDENCE AND FINDINGS
16Mr. Smith opined the proposed rezoning is appropriate and desirable in land use planning and urban design terms and should be approved. The proposed development would fit harmoniously with the existing and planned built form context and meets the intent of the applicable policy framework at the Provincial and City levels which supports residential/mixed-use intensification on the site.
17Mr. Smith further opined, the proposed redevelopment would result in a building that is complementary to the existing and approved mid-rise and tall mid-rise developments along this segment of King Street West. It will appropriately intensify an underutilized site, improve the streetscape along King Street West and Strachan Avenue by providing active uses at grade, result in the conservation and restoration of a significant built heritage resource, and provide new purpose-built rental housing supply, including new affordable rental units, in a built form that is in keeping with the existing and planned surrounding context.
18The Tribunal was informed that the proposed development is in keeping with the policy framework expressed in the Provincial Policy Statement (2020), the Growth Plan for the Greater Golden Horseshoe (2019) and the Toronto Official Plan, all of which promote transit-supportive intensification and a range of housing options within built-up urban areas, particularly in locations which are well-served by municipal infrastructure, including public transit. The introduction of residential uses, in combination with ground floor retail uses, is in keeping with the policy framework that applies to lands designated Mixed Use Areas along an Avenue. The proposed development will be compatible with residential, commercial and employment uses in the immediate area.
19Further, the Tribunal in arriving at the Decision to approve the Zoning By-law which was filed as Exhibit 3 in the Hearing, the Tribunal was aware of the concerns raised by King West Co., a Party to these hearings the landowner of the lands on the east side of the 6.0-metre (“m”) lane that abuts the lands of the Applicant.
20The Tribunal finds, based on the uncontradicted evidence of the Planner, Mr. Smith, and the Architect, Mr. Sweeny, that the location of the eastern wall of the proposed building containing windows, balconies, and terraces on floors 2 through 5, at a distance of 3.0 m from the centre-line of the lane, constitutes good urban planning and good urban design. The Tribunal finds that such a condition will not impact the ability of the King West Co. lands to accommodate a similar development at the same setback from the centre-line of the laneway. As such the approval of the subject by-law amendment is supportable on the evidence.
21In conclusion, the Tribunal finds that the proposed settlement, as described in the affidavits and through the oral evidence presented at this hearing, is appropriate and desirable in this location of the City, represents good land use planning, is consistent or in conformity with and meets the objectives of all public policy and is in the public interest.
22The Tribunal was presented with a draft ZBA, in a final form and content satisfactory to the City and finds the contents to be in order. The Tribunal finds that the appeal should be allowed in part and that the proposed zoning by-law amendment is approved. The Tribunal also finds it appropriate to have the Order be effective at the date of the settlement hearing, being July 20, 2022, in keeping with Rule 24.3 of the Tribunal’s – Rules of Practice and Procedure.
ORDER
23THE TRIBUNAL ORDERS that the Zoning Appeal is allowed and that Zoning By-law No. 569-2013 of the City of Toronto as amended, is hereby amended in the manner set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk to format, as may be necessary, and assign a number to these by-laws for record keeping purposes.
24AND THE TRIBUNAL DIRECTS that the applicable community benefits and other matters in support of the development as set out in Attachment 1 and any appendix thereto are to be secured in a Section 37 Agreement executed by the owner and registered on title to the satisfaction of the City Solicitor.
25AND THE TRIBUNAL FURTHER ORDERS that it may be spoken to in the event any matter or matters should arise in the connection with the implementation of this Order. And pursuant to Rule 24.3 of the Tribunal’s rules this Order is effective on July 20, 2022.
“Carmine Tucci”
CARMINE TUCCI
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.