Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
November 09, 2023
CASE NO(S).:
OLT-22-003917
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Applicant and Appellant:
Timbercreek Four Quadrant GP2 Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit the redevelopment of the Subject Property with a public park and 5 mixed-use buildings
Reference Number:
PLAN 20 130784
Property Address:
288, 298, and 300 John Street
Municipality/UT:
Markham/York
OLT Case No.:
OLT-22-003917
OLT Lead Case No.:
OLT-22-003917
OLT Case Name:
Timbercreek Four Quadrant GP2 Inc. v. Markham (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Applicant/Appellant:
Timbercreek Four Quadrant GP2 Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the redevelopment of the Subject Property with a public park and 5 mixed-use buildings
Reference Number:
PLAN 20 130784
Property Address:
288, 298, and 300 John Street
Municipality/UT:
Markham/York
OLT Case No.:
OLT-22-003918
OLT Lead Case No.:
OLT-22-003917
Heard:
October, 13, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Timbercreek Four Quadrant GP2 Inc.
Mary-Flynn Fuglietti
Talia Gordner
Patrick Pinho
City of Markham
Andrew Baker
Julie Lesage
Maggie Cheung-Madar (“in absentia”)
DECISION DELIVERED BY A. mason and w. DANIEL BEST AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1Timbercreek Four Quadrant GPS Inc. (“Applicant/Appellant”) submitted applications for official plan amendment and zoning by-law amendment (“Applications”) with the City of Markham (“City”) for the lands municipally known as 288, 298, and 300 John Street in the City of Markham (‘Subject Lands”). The City is also the owner of the lands immediately to the west of the Subject Lands at 7755 Bayview Avenue (“Community Centre Lands”).
2The Applicant/Appellant appealed the Applications to the Ontario Land Tribunal (“OLT”) pursuant to Sections 22(7) and 34(11) of the Planning Act (“Act”) based on the failure of the City to make a decision within the statutory timeline (“Appeals”). The Parties engaged in two days of confidential Tribunal-led mediation on June 14 and July 12, 2023, and submitted a revised development proposal thereafter. However, the Parties were unable to resolve all issues in mediation, and the Appeals were scheduled for a seven-day merit hearing to commence on October 10, 2023. On the eve of the hearing, the Parties advised the Tribunal that a settlement had been reached with executed Minutes of Settlement, ultimately dated October 12, 2023, and they asked to convert the merit hearing to a hearing to consider a settlement proposal. The Tribunal granted the request, and the Panel convened on October 13, 2023, to hear the settlement proposal proffered by the Parties.
CONTEXT
3The Subject Lands are located within the Thornhill district of Markham and are occupied by the Thornhill Square Shopping Centre (“Thornhill Square”), comprised of three commercial buildings, along with a six-storey office building and a heritage building currently operating as a restaurant, along with associated field parking. Vehicle access is from two driveways on Green Lane to the north and one driveway on the major collector road of John Street to the south.
4The Subject Lands are bounded by John Street to the south, the Community Centre Lands, Bayview Avenue to the west, Green Lane to the north, and mixed-use residential townhouses to the east. To the east of the townhouses is the GO Rail Richmond Hill/CN Rail Line (“GO/CN Rail Corridor”). To the north is a large residential condominium site developed with three “Y”-shaped fifteen-storey buildings.
SETTLEMENT PROPOSAL
5The revised development proposal proffered as a settlement by the Parties seeks to redevelop the Subject Lands with four new buildings that include: (1) a nineteen-and seventeen-storey building on the north portion of the site (“Tower A” and “Tower B” respectively); (2) a twelve-storey building (“Building C”); (3) a seven-storey building (“Building D”) in the central portion of the site; (4) the retained heritage building, and (5) 6,887 m2 (0.69 ha or 1.70 ac) of park/open space at the south end of the site (“Settlement Proposal”). The Settlement Proposal includes a total of 615 residential units, consisting of 349 one-bedroom units and one-bedroom plus den units (57%), 192 two-bedroom and two-bedroom plus den units (31%), and 74 three-bedroom units (12%).
6On the north end of the site, Tower A and Tower B share a six-storey podium fronting Green Lane. The podium provides two storeys of retail and office uses, including Gross Floor Area (“GFA”) for the replacement of the pharmacy and grocery uses currently serving the community in Thornhill Square. Rooftop amenity space is provided on the podium.
7In the central portion of the site, Building C is proposed atop a six-storey podium with rooftop amenity space. In the central/eastern area of the site, Building D is stepped along Porterfied Crescent and massed under the 45-degree angular plane measured to the lot lines of the townhouses to the east, and provides ground-floor retail.
8Tower A, B, and C are designed as 750 square metres (“m2”)floorplates. In total, the Settlement Proposal will comprise 69,949 m2 of GFA, resulting in a gross Floor Space Index (“FSI”) of 2.21 and a net FSI of 2.90.
9The Settlement Proposal provides 1, 210 parking spaces in 3 levels of underground parking, with 706 resident parking, 504 shared retail and visitor parking, and 80 spaces for church parking and shared with the retail and visitor parking. There are 73 surface parking stalls for visitor and retail use. Bicycle parking is provided with 206 long-term spaces and 20 short term spaces. All four buildings are serviced by a proposed “loop” internal driveway network, providing access to the shared underground parking and service areas.
10A 6,887m2 public park on the south end of the Subjects Lands is proposed with frontage on John Street and Porterfield Crescent and sized to serve the existing and planned community. The heritage building operating as a restaurant will remain as is.
LEGISLATIVE FRAMEWORK
11When considering appeals filed pursuant to s. 22(7) and s. 34(11) of the Act, the Tribunal must have regard to the matters of Provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to A Place to Grow; Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). The Tribunal must also be satisfied that the Applications conform with the Region of York (“Region”) Official Plan 2010 (“ROP 2010”), the City of Markham Official Plan 2014 (“OP 2014”), and the City of Markham Official Plan 1987 (OP “1987”).
12In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Applications represent good planning and are in the public interest.
SUBMISSIONS AND EVIDENCE
13On consent, the Tribunal qualified Michael Goldberg, a registered Professional Planner, to provide opinion evidence in land use planning. Mr. Goldberg provided an affidavit sworn on October 12, 2023, in support of the Settlement Proposal and approval of the OPA and ZBA (Exhibit 1).
14Mr. Goldberg provided evidence to the Tribunal that the Settlement Proposal incorporates the following changes to the development concept that resolve the difference between the Parties:
Tower A to be set back 15m from the western property line to ensure a minimum 30 metre tower separation to any future redevelopment of the Community Center Lands;
A minimum separation of 30 meters between Tower A and Tower B;
Maximum tower floor plates of 750 meters square of Tower A and Tower B;
A mechanism to finalize Tower C dimensions and setbacks to be inserted into the final ZBA;
Agreement between the Parties set out in the Minutes of Settlement that, if the City redevelops the Community Centre Lands in the future, the Applicant/Appellant will not oppose such redevelopment and will provide access to the Subject Lands for any works by the City respecting decommissioning of the north-south portion of the private loop road and construction of connections to the City’s future public road;
A mechanism for agreement set out in the Minutes of Settlement regarding the over dedication of parkland in the Settlement Proposal and ownership of any such over dedication; and,
A process to finalize the sanitary sewer detailed design, upgrades, construction methodology, and agreements with the City and Region of York set out in the Minutes of Settlement.
15Mr. Goldberg opined that the Subject Lands are a major redevelopment of a suburban commercial site in the municipally planned evolution of the community. The Settlement Proposal promotes a broader potential in the community to live and work near the proposed office, commercial, parkland, and heritage uses as directed by Provincial policy set out in the Growth Plan and PPS.
16Mr. Goldberg provided evidence that the ROP 2010 promotes intensification and redevelopment of the Subject Lands from a suburban-style big box commercial use with field parking to a redevelopment supporting mixed use, transit, complete communities, and a range of housing types for the current and planned community. Based on this, Mr. Goldberg opined that the Settlement Plan conforms to the ROP 2010.
17The witness provided evidence that the Subject Lands are within a Local Centre as set out in the OP 2014, that it is an area prioritized for accommodating intensification, and that the Settlement Proposal is an appropriate infill redevelopment of an underutilized site. The witness provided evidence that the redevelopment represents appropriate intensification, and a mix of land uses that align with existing and planned area transit.
18The witness opined that the Settlement Proposal is compatible with the adjacent uses and capable of “living in harmony” with the existing and planned community context, as demonstrated by:
Multi-storey buildings that provide a mix of residential unit types with integrated retail and service uses;
Park and open space use that provide a soft landscaped connection to the Community Centre Lands and serve to enhance and expand the existing community facilities for residents, businesses, and workers;
A mix of uses that promote and support walking, cycling, and use of transit;
An appropriate scale of development that reflects adjacent uses and heights through descending building heights and respect for the 45-degree angular plane, along with park and open space adjacency to low-rise residential uses on the south end of the Subject Lands;
Building heights that are moderately taller than those adjacent on the north side of Green Land but have a much smaller scale due to smaller floor plates;
An appropriate transition in intensity of uses down to lower mid-rise buildings moving south, thereby respecting the low-rise residential neighbourhood south of John Street and the townhouses to the east;
General replacement of the planned function of the Thornhill Center through the new mixed-use buildings, delivering a compact mix of revitalized and pedestrian-orientated urban form containing residential, retail, office, and park uses; and,
The cultural heritage of Markham is being conserved through the maintenance of the heritage building and enhanced through the addition of the park space in front providing increased exposure to the public realm.
19The witness addressed the concerns of the Participants in the Appeals, which were related to community services and the loss of existing retail and office space; traffic congestion and parking; height and density, green space and environmental concerns, heritage conservation, and compatibility with the surrounding community. Mr. Goldberg opined that, for the reasons set out above, the Settlement Proposal provides the appropriate regard to the issues raised by the Participants.
20Overall, Mr. Goldberg opined that the Settlement Proposal has the necessary regard for Provincial, Regional, and local planning policy and constitutes good planning.
ANALYSIS AND FINDINGS
21Having heard the uncontested sworn and oral evidence of Mr. Goldberg and reviewed the Participants statements, the Tribunal is satisfied that the Settlement Proposal addresses the concerns of the neighbours and aligns with provincial, regional, and local planning policy regimes that guide intensification and orderly development of the Subject Lands.
22The 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 provides for a complete community supporting public transit, and that the Settlement Plans represent a well-designed built form.
23The Tribunal finds that the Settlement Proposal is consistent with the PPS as it proposes an efficient development and land use pattern that provides an appropriate range and mix of housing types that will meet the needs of current and future residents. The Settlement Proposal represents an integration of land use planning, growth management, transit-supportive development, intensification, and infrastructure planning to achieve a cost-effective development pattern that optimizes transit investment.
24In consideration of the Growth Plan, the Tribunal finds that the Settlement Proposal supports the achievement of complete communities that are designed to support healthy and active living by providing compact built form and a mix and range of housing. The Subject Lands is located within the “delineated built boundary” and appropriate for intensification that optimizes the use of existing urban land supply.
25The Tribunal finds that the Settlement Proposal conforms to the ROP 2010 as it proposes development that will contribute to the creation of complete communities, represents intensification in a compact development pattern, is transit-supportive, and will minimize land consumption and service costs to meet density targets. The ROP 2010 requires that communities be designed to prioritize active transportation, transit-supportive development, and intensification in appropriate locations, and the Tribunal is satisfied that the Settlement Proposal achieves these objectives.
26The Tribunal is satisfied that the Settlement Proposal proposes a density that is appropriate for the Subject Property being in an urban area and within a municipally identified Local Center expected to accommodate intensification that is compact, optimized, and transit supportive. The Tribunal finds that the proposed density and mixed-use function are compatible with the existing and planned community context and conforms to the OP 2014 and OP 1987.
27The Tribunal is satisfied that outdoor amenity areas are appropriate to the subject site and will be finalized through the required site plan approval process.
28The Tribunal accepts that an appropriate mechanism has been set out between the Parties to resolve identified sanitary servicing issues through the Minutes of Settlement.
29In consideration of the above, the Tribunal finds that the Settlement Proposal represents good planning and is in the public interest.
ORDER
30THE TRIBUNAL ORDERS THAT the appeals be allowed, in part, and approves in principle the Official Plan Amendment (Schedule 1) and Zoning By-Law Amendment (Schedule 2) attached hereto and forming part of this decision; and,
31THAT the Tribunal will withhold issuance of its Final Order contingent upon confirmation in writing from the City Solicitor of the following pre-requisite matters as set out in paragraph 4 of the Minutes of Settlement between the parties dated October 12, 2023:
a. The following conditions respecting sanitary servicing have been met, to the satisfaction of the City’s Director of Engineering (or delegate), in which case the City will no longer require that an “H” condition pursuant to Section 36 of the Act be placed in the final form of the ZBA:
i. The Applicant/Appellant shall provide a detailed design for a sanitary sewer upgrade to accommodate the Settlement Proposal, in the form of a revised Functional Servicing Report and any ancillary documentation, which shall:
Demonstrate how the proposed municipal sanitary sewer upgrades can be constructed and ensure that a constructability methodology is achievable given all constraints existing on the Subject Lands, including geological conditions and the existing infrastructure in the municipal right-of-way;
Acknowledge that approval of the detailed design within the Region of York’s right-of-way and is subject to approval by the Region of York; and,
ii. Acknowledge that as a condition of Site Plan Approval, the Applicant/Appellant shall enter into an agreement with the City with respect to the construction of the sanitary sewer upgrade solution, which shall address financial securities, servicing allocation from the City and Region, fees in accordance with the applicable Fee By-Law, and insurance requirements, all to the satisfaction of the City’s Director of Engineering.
b. The final form and content of the draft OPA and ZBA for the Settlement Proposal are resolved to the satisfaction of the City Solicitor and the Commissioner of Development Services, which shall include that:
i. The ZBA shall be amended to specify that the minimum setbacks between the western elevation and southern elevations of Building “C” and the western and southern lot lines, respectively, shall be a distance that is equivalent to or greater than the distance of the outline of Building “C” shown on the site plan drawing prepared by Graziani + Corazza Architects. Inc. dated January 23, 2023 (appended to Schedule 2 as Attachment “E”) to the respective lot lines, all the while maintaining a minimum separation distance between Building “C” and Building “E” that is no less than depicted on the same site plan drawing.
ii. The ZBA shall specify that the minimum distance between Towers A and B shall be 30 metres.
iii. The ZBA shall specify that the maximum floorplate of Towers A and B shall be 750 m2.
iv. The ZBA shall specify that the minimum setback of Tower A from the western lot line shall be 15 metres.
32The Parties shall provide a written interim update to the Tribunal on the status of the progress of the matters on Monday, June 10, 2024.
33If the Parties do not submit the final draft of the Official Plan Amendment and final draft of the Zoning By-law Amendment, and provide confirmation that the contingent pre-requisites to the issuance of the Final Order set out in paragraph above have been satisfied and do not request the issuance of the Final Order, by Friday, October 10, 2025, the Applicant/Appellant and the City of Markham shall provide a written Status Report to the Tribunal by that date as to the timing of the expected confirmation and submission of the final form of the draft Official Plan Amendment and Zoning By-law Amendment and request for issuance of the Final Order by the Tribunal.
34The Panel will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment, the Zoning By-law Amendment, and the issuance of the Final Order.
35The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadlines for the submission of the final form of the instruments and the satisfaction of the contingent pre-requisites to the issuance of the Final Order.
“A. Mason”
A. MASON
MEMBER
“W. Daniel Best”
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.