Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 20, 2023
CASE NO(S).: OLT-22-003837
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Joseph Chen
Subject: Zoning By-law
Description: ZBA to facilitate mixed use development
Reference Number: BL 268-2022
Property Address: 140, 150, 156, 158 and 160 Borough Drive
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-003837
OLT Lead Case No: OLT-22-003837
OLT Case Name: Chen v. Toronto (City)
Heard: October 21, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Joseph Chen (Appellant) | Self-Represented |
| City of Toronto | Mark Crawford* |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON OCTOBER 21, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from a Motion from the City of Toronto (“City”), pursuant to s. 34(25) of the Planning Act (“Act”) and s. 9(1) of the Ontario Land Tribunal Act (“OLT Act”) requesting the Tribunal to dismiss the Appeal of Joseph Chen (“Appellant”) without hearing, on the basis that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground on which the Tribunal could allow all or part of the Appeal.
2The City is the owner of lands known municipally as 158 Borough Drive (“Subject Property”), in which the proposed development subject to Appeal is located. The Subject Property has an area of 6,535 square metres with 101.4 metres (“m”) of frontage on Borough Drive and 53.5 m of frontage on Town Centre Court.
3The Subject Property is designated Mixed-use Areas and located within the Scarborough Centre Secondary Plan (“Secondary Plan”) and currently zoned City Centre Residential (CCR) (H) and are subject to Exception No. 531 under the Former City of Scarborough Zoning By-Law No. 24982 (“ZBL”) (Progress Employment District). The CCR zone permits all types of dwelling units, day nurseries and private daycares. The Holding symbol (H) may be removed by amending the ZBL subject to certain conditions.
4The development on the Subject Property is part of the Housing Now Initiative, initiated by the City in December of 2018, to accelerate the development of affordable housing and mixed-income, mixed-use, transit-oriented communities on City owned properties. City Council approved inclusion of the Subject Property in the housing Now Initiative “Phase Two”.
5On July 21, 2021, CreateTO, an agency established by the City to manage its portfolio of real estate assets, filed a Zoning By-Law Amendment Application (“Application”) to redevelop the Subject Property with a mixed-use building with two residential towers of 27 and 42 storeys, with approximately 645 dwelling units, of which 33 and 50% respectively will be provided as affordable housing. The development also includes a day nursery with programmable outdoor space and two publicly accessible pedestrian connections along the north and west side of the Subject Property.
6The City also filed an Application for Official Plan Amendment (“OPA”) for the sole purpose of exempting the Subject Property from the parkland dedication policy in the Secondary Plan.
7The City and CreateTO led public consultations as part of the Application, exceeding requirements of the Act and the City of Toronto Official Plan (“OP”). Input from members of the public were incorporated in the revisions regarding the Application including but not limited to;
Increase tower stepbacks to reduce visual impact and potential adverse wind conditions at the street level; and
The addition of more affordable housing units in the east tower through increase in height and enhancements to landscaping.
8The City staff report dated March 10, 2022, concluded that the proposed development was appropriate for the site, has regard for matters of provincial interest in accordance with s. 2 of the Act, is consistent with the Provincial Policy Statement (“PPS”), and conforms to the Growth Plan for the Greater Golden Horseshoe (“GP”) and the OP.
9On March 25, 2022, the Planning and Housing Committee (“PHC”) held a statutory public meeting regarding the Application. Only three written submissions were made, including one from the Appellant opposing the Application. As a result of the PHC recommending Approval, City Council enacted By-Law No. 268-2022 to permit the proposed development.
10On May 9, 2022, the City received the Appeal by the Appellant.
Appeal
11The Appellant filed for Appeal with the following grounds:
i. The changes in intensity of use have direct negative impacts on the immediate neighbourhood;
ii. Residents of an adjacent building in good faith on the former by-law in force when they moved in (sic);
iii. The Application does not comply with the Secondary Plan;
iv. The Application does not comply with the Phase Two Background Report for Scarborough Centre;
v. The Application does not comply with the OP;
vi. The addition of more towers in this limited space will lead to excess congestion with all of its implications and is not conducive to a sustainable, healthy community.
12In their submission to the PHC, the Appellant noted the following additional concerns for Appeal:
vii. The Environmental impact the development will have on the area;
viii. The Socioeconomic impact the development will have on the area; and
ix. The City has the tool of Inclusionary Zoning to achieve affordable housing in the City.
13The Appellant had not retained counsel, witnesses or provided any other basis for the Appeal.
MOTION TO DISMISS
14The City’s Motion to Dismiss the Appeal is on the basis that the Appeal does not disclose valid land use planning grounds, does not explain how the Application is inconsistent with the PPS, fails to conform with the GP and the OP and the claim that it has no reasonable prospect of success.
15S. 9(1) of the OLT Act provides the Tribunal the authority to make orders or give directions as necessary or incidental in the exercise of its powers. S. 34(25) of the Act permits the Tribunal on its own initiative or on the motion of a party to dismiss all or part of an Appeal without holding a hearing if certain criteria is met. The Appellant relies on s. 34(25) to argue that the Appeal does not disclose a valid land use planning ground and has no reasonable prospect of success.
16In support of its Motion to Dismiss, the City brought forward one witness, Anna Procopio. Ms. Procopio is a senior planner working for the City of Toronto, a full member of the Canadian Institute of Professional Planners and the Ontario Professional Planners Institute. Following a review of the qualifications of Ms. Procopio and with no objection, Ms. Procopio was qualified to provide opinion evidence in the area of land use planning.
17The City relied on the following documentary evidence for the motion:
a. Affidavit of Anna Procopio, sworn on October 4, 2022, and the exhibits thereto;
b. The record compiled by the City Clerk in regards to the Appeal;
c. Book of Authorities provided on behalf of the City; and
d. File contents of OLT Case No. OLT-22-003837.
18The Appellant provided no documentary evidence other than an email contending points raised by the City’s motion materials.
19For the reasons that follow, the Tribunal favours the argument and evidence provided by the City in this matter, particularly the Affidavit of Anna Procopio, an Expert in land use planning.
20Pursuant to s. 2.1 of the Act, The Tribunal is to have regard for previous decisions of Council relating to the Application. The Tribunal has had such regard and notes that in this case, both the City staff report and evidence of Ms. Procopio, explained that the legislative requirements were met.
21Ms. Procopio’s Affidavit demonstrated that the Application is consistent with the PPS, citing the direction to promote transit-supportive developments that include a range of housing options. The proposed development also provides for a wide range of housing types including affordable housing and market rate housing.
22The GP provides a strategic framework for managing growth and environmental protection in the Greater Golden Horseshoe region, of which the City forms an integral part. Urban growth centres are to be planned, to accommodate significant population and employment growth as the proposed development will provide.
23The OP places the Subject Property within Scarborough Centre, a designated Centre in the City where growth is recommended to contribute to the City’s financial health, promote mixed-use development and increase opportunities for living close to work and offer opportunity for affordable housing.
24The Secondary Plan speaks to encouraging the opportunity for redeveloping parking lots and other under-utilized lands, the Subject Property being an example of such lands.
25Ms. Procopio’s Affidavit also refutes each of the Appellants’ grounds for Appeal as noted in paragraphs [11] and [12] above.
EVIDENCE
Ground (i) changes in intensity of use have direct negative impacts on immediate neighbourhood
26Ms. Procopio refuted Ground (i) of the Appeal, stating that the built form, including height and density were closely reviewed through the application process and various iterations of the plans were submitted to refine the massing in order to ensure an appropriate built form, and relationship to adjacent land uses. Ms. Procopio further opined that the built form was reviewed and commented on by the City of Toronto Design Review Panel, City Urban Design staff and City staff from various other commenting divisions. Ms. Procopio directed the Tribunal to the City Staff Report, which concluded that the “proposed land use and density provides a built form that supports an efficient use of land and existing transportation infrastructure” and that the “proposed building fits the existing and planned context.”
Ground (ii) residents of adjacent building relied on former zoning by-law
27Ms. Procopio stated that a Zoning By-Law Amendment (“ZBLA”), such as the one the Applicant seeks in this matter, is requested in order to implement the provisions of the OP, the Secondary Plan, the PPS and the GP. Ms. Procopio opined that lack of compliance with the in-force zoning at the time of the Application was not a valid reason or ground for Appeal, as the purpose of a ZBLA is to amend a zoning By-law, subject to conformity with the policies outlined above.
Ground (iii) Application does not comply with the Secondary Plan
28Ms. Procopio noted that the Appellant alleges that the Application does not comply with the Secondary Plan, however, fails to provide analysis or reason to substantiate non-conformity with the policy.
29Ms. Procopio further opined that the proposed ZBLA conforms with the policies of the Secondary Plan. The Subject Property is located within the Secondary Plan Civic Precinct, which specifically speaks to the opportunity for redeveloping of parking lots and other under-utilized lands such as the Subject Property.
Ground (iv) the Application does not comply with the Phase 2 Background Report for Scarborough Centre
30Ms. Procopio explained that the Phase 2 Background Report is not an in-force policy document requiring compliance as the Appellant suggests. The Phase 2 Background Report captures and summarizes the planning review and analysis, development concepts explored and consultation undertaken as part of Phase 2 of the Study to inform the update to the Secondary Plan.
31Ms. Procopio concluded her opinion on Ground (iv) stating that the proposed ZBLA aligns with the vision and findings of the report.
Ground (v) the Application does not comply with the OP
32Ms. Procopio explained that the Appellant alleges that the Application does not comply with the OP, however, fails to substantiate its claim.
33Under the OP, the Subject Property is located within Scarborough Centre, one of the designated “Centres” in the City. The OP states that Centres are places with excellent transit, accessibility where jobs, housing and services will be concentrated in dynamic mixed-use settings with different levels of activity and intensity.
34Further Ms. Procopio opined that the Subject Property is designated Mixed Use Areas, which permits a broad range of commercial, residential and institutional uses in single-use or mixed-use buildings. The OP directs Mixed Use Areas will absorb most of the anticipated increase in retail, office and service employment in the City as well new housing.
35As a result of the lack of explanation from the Appellant as well as the OP direction in regards to development of lands located in Centres, and on lands designated Mixed-Use, Ms. Procopio opined that the proposed ZBLA conforms with the OP.
Ground (vi) the addition of more towers in this limited space will lead to excess congestion with all of its implications and is not conducive to a sustainable, healthy community
36Ms. Procopio explained that no reasons or evidence were provided as to how the addition of the two towers on the Subject Property would lead to “excess congestion with all of its implications.”
37The City staff report indicates that the proposed development is anticipated to generate approximately 135 two way vehicle trips in both the weekday AM and PM peak hours. The report goes on to state that given the level of trip generation, there will be minimal impacts to the area, and can be acceptably accommodated on the adjacent street network. Further, the development proposes to make improvements to transit and streetscape, which can adequately accommodate traffic expected to be generated.
ANALYSIS AND CONCLUSION
38The Tribunal finds that the Appeal should be dismissed without hearing on the basis that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground on which the Tribunal could allow all or part of the Appeal.
39Additional concerns of environmental and socioeconomic impacts arising from the proposed development, were raised in the Appellants’ letter to the PHC, however no evidence was presented to substantiate such claims.
40The Appellant also noted in their letter to the PHC, that the Subject Property would be better for community purposes, however this is not a valid ground for Appeal. Despite this, the proposed development would have community use through a daycare centre and associated outdoor play space.
41All concerns raised by the Appellant were extensively studied and analyzed as reflected in various plans and reports filed.
42S. 34(25) of the Act empowers the Tribunal to dismiss an Appeal if it is of the opinion that the reasons set out in the notice of Appeal do not disclose any apparent land use planning ground upon which it could allow all or part of the Appeal.
43In its Book of Authorities, the City cited Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740 (“East Beach Case”). The East Beach Case established that the Tribunal should not take away the right of Appeal whimsically, readily and without serious consideration of the circumstances of each case. At the same time, in order for an Appeal to have merit it must disclose whether any apparent planning grounds on which Appeals can be allowed or refused.
44Although the Appellant utilizes planning language to describe a list of concerns, including citing issues of conformity with the OP as well as the Secondary Plan, the Tribunal is guided by the Decision in the East Beach Case, which establishes that simply raising such grounds are insufficient to justify an Appeal. The Appellant did not provide sufficient reasoning to justify its concerns with the OP and Secondary Plan.
45As a result of no further evidence supporting this position as well the uncontroverted testimony of Ms. Procopio that the proposed development meets the necessary legislative tests, the Tribunal finds, pursuant to s. 34(25) of the Act, that the Appeal should be dismissed without hearing, on the basis that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground on which all or part of the Appeal could be allowed.
46THE TRIBUNAL ORDERS that the motion is granted and that the Appeal by Joseph Chen is dismissed.
“S. Mann”
S. MANN
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.