Autumn Peak Developments Inc. v. Toronto (City), 2023 CanLII 12223

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 15, 2023

CASE NO(S).: OLT-21-001414

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Autumn Peak Developments Inc.

Subject: Request to amend the Official Plan – Failure of the City of Toronto to adopt the requested amendment

Existing Designation: Apartment Neighbourhoods

Proposed Designation: Apartment Neighbourhoods

Purpose: Infill development to permit a mid and high-rise residential development

Property Address/Description: 680-688 Sheppard Avenue East

Municipality: City of Toronto

Approval Authority File No.: 19 248099 NNY 17 OZ

OLT Case No: OLT-21-001414

OLT Lead Case No: OLT-21-001414

OLT Case Name: Autumn Peak Developments Inc. v. Toronto (City)

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

Applicant/Appellant: Autumn Peak Developments Inc.

Subject: Application to amend Zoning By-law No. 7625 & 569-2013 – Neglect or Refusal of application by City of Toronto

Existing Zoning: Multiple-Family Dwellings Third Density Zone (RM3) & Residential Multiple Dwelling Zone (RM)

Proposed Zoning: Multiple-Family Dwellings Sixth Density Zone (RM6) & Residential Apartment Zone (RA)

Purpose: Infill development to permit a mid and high-rise residential development

Property Address/Description: 680-688 Sheppard Avenue East

Municipality: City of Toronto

Municipal File No.: 20 110947 NNY 18 OZ

OLT Case No: OLT-21-001415

OLT Lead Case No: OLT-21-001414

Heard: December 15, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

City of Toronto

S. O’Connor

Autumn Peak Developments Inc.

M. Keating

MEMORANDUM OF ORAL DECISION DELIVERED BY G. BURTON AND D.S. COLBOURNE ON DECEMBER 15, 2022 AND ORDER OF THE TRIBUNAL

1A settlement hearing for this Appeal was conducted on December 15, 2022. The Ontario Land Tribunal (“OLT” or “Tribunal”) had the evidence and affidavit (Exhibit 2) of Planner Mike Dror, a well-qualified planner, in support of the proposal and qualified by the Tribunal as an expert.

2Following meetings of the Parties, the ward councillor and tenants on the original concept, an application was filed on November 2019, together with a Rental Housing Demolition application. This original proposal was for a 24-storey mixed-use building containing 492 condominium units and 35 rental replacement units, together with daycare space and a large outdoor amenity space.

3Neighbourhood residents’ associations then met in December 2019, to discuss the proposal. At its February 2020 meeting, Council then adopted a staff recommendation to have a formal community consultation meeting. This meeting was hosted by the City of Toronto (“City”) and was held on November 23, 2020.

4A revised proposal was presented in June 2021. This lowered the overall height to 22 storeys, with terracing down to the northeast area of the site, and a reduced unit count. There would be a new open space fronting onto Sheppard Avenue East, a combination of a public park to be conveyed to the City, and a Privately Owned Publicly Accessible Space (“POPS”) to the rear providing for a potential future mid-block connection.

5This was appealed to the OLT in September 2021, due to Council’s failure to make a decision. Extensive mediation then took place. Autumn Peak Developments Inc. (the ”Applicant”) made a settlement offer on July 11, 2022, which the City ultimately supported in this Hearing. The Sheppard Avenue East Community Group withdrew as a Party, so that the City remained as the only other Party. Participants included Victoria Joly, Maria Cheung and Ryan Cyrus, and the Tribunal has considered their statements.

6The settlement proposal would see a height of 22 storeys and a floorplate of 779 square metres of gross construction area (visual at Exhibit 3). An eight-storey transition element is proposed immediately north of the tower, reduced from the original 16-storey element. There would be 484 residential units and 47 rental units.

7With respect to the public realm, the proposal relocates a vehicular entrance towards the west lot line, allowing for a new 759-square-metre public park at the southeast corner. As well, a 5-metre (“m”) POPS is proposed, separating the park and the proposed building. The POPS widens to 10 m, and wraps around the park towards the rear lot line at the north. It will contain a minimum 3 m north-south pedestrian walkway. Significant detail as set out in Mr. Dror’s affidavit is to be included in the design.

8His opinion in his affidavit is that the settlement represents good planning and is consistent with the Provincial Policy Statement (2020), conforms with the Growth Plan for the Greater Golden Horseshoe (2020) and the City Official Plan, and is generally in keeping with the Secondary Plan, which encourages intensification and transit-supportive developments.

9This will intensify the subject Site, with new residential uses in mid-rise, high-rise and grade-related unit forms. It will replace the existing rental units and add a new public park and POPS. All of these are permitted and/or encouraged by the Apartment Neighbourhoods designation. The Site Plan application and appeal is deferred.

10As Mr. Dror recommends and as requested by the City, based on his uncontradicted planning evidence, the Tribunal approves the Official Plan amendments to the Secondary Plan (designation and map), and the Zoning By-Law amendment (for site-specific exceptions) in principle, subject to conditions set out in Attachment 4 being satisfied before the final order is issued.

INTERIM ORDER

11THE TRIBUNAL ORDERS that:

i. The Official Plan and Zoning By-law Amendment appeals are allowed in part;

ii. The draft Official Plan Amendment and Zoning By-law Amendments attached hereto as Attachments 1, 2, and 3 approved in principle;

iii. Upon being advised by the City solicitor that the conditions in Attachment 4 to this Decision and order have been met, the Tribunal will issue its final order approving the Official Plan Amendment and Zoning By-law Amendments in final form;

iv. The site plan appeal shall be held in abeyance.

v. In the event that there are any difficulties implementing any of the conditions in Attachment 4 or if any issues arise with respect to the site plan appeal, the Tribunal may be spoken to.

“G. Burton”

G. BURTON

VICE-CHAIR

“D.S. Colbourne”

D.S. Colbourne

VICE-CHAIR

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.

ATTACHMENT 1

ATTACHMENT 3

ATTACHMENT 4

In the event the Ontario Land Tribunal allows the appeal, in whole or in part, City Council direct the City Solicitor to request the Ontario Land Tribunal to withhold its final Order on the Official Plan and Zoning By-law Amendments until:

1. the final form and content of the draft Zoning By-laws are to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning and, among other matters have secured:

i. provisions for a holding by-law pursuant to Section 36 of the Planning Act related to the completion of required sanitary sewer upgrades in the Sheppard Avenue East corridor area;

ii. the unit mix shall include a minimum of 10 percent 3 bedroom and 30 percent 2 bedroom units;

iii. the full replacement of the existing rental dwelling units on the lands at 680 and 688 Sheppard Avenue East;

iv. the rents, rental tenure, unit mix, and unit sizes of the replacement rental dwelling units;

v. an acceptable Tenant Relocation and Assistance Plan addressing the right for existing tenants to return to a replacement rental unit on the lands at similar rents, the provision of alternative accommodation at similar rents, and other assistance to mitigate hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning;

vi. a minimum of ten percent (10 percent) of all non-replacement rental dwelling units at 680 and 688 Sheppard Avenue West as three-bedroom units and a minimum of thirty percent (30 percent) of all non-replacement rental dwelling units on the lands as two-bedroom units; and

vii. any other rental housing-related matters in conformity with Policy 3.2.1.6 of the Toronto Official Plan and Chapter 667 of the Toronto Municipal Code;

2. City Council direct the Chief Planner and Executive Director, City Planning, in consultation with the Chief Engineer and Executive Director, Engineering and Construction Services to impose a holding provision in the site specific by-law pursuant to Section 36 of the Planning Act, to be in lifted upon the completion of sanitary sewer upgrades in the Sheppard Avenue East corridor area and sufficient capacity is present to support the development;

3. the owner has addressed all outstanding issues raised by Engineering and Construction Services as they relate to the Official Plan Amendment and Zoning By-law Amendment applications as set out in their memo dated September 17, 2021 or as may be updated in response to further submission(s) filed by the owner, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

4. the owner has delivered a revised wind study to the satisfaction of the Chief Planner and Executive Director, City Planning;

5. the owner has entered into an agreement with the City for the conveyance of a public access/publicly-accessible privately-owned space easement with respect to the multi-use trail/mid-block connection in the location depicted in the July 4, 2022 Settlement Offer and at no cost to the City, with such conveyance to occur through the site plan approval process and on terms satisfactory to the City, or has made other arrangements for such conveyance to the satisfaction of the City Solicitor;

6. the owner has entered into an agreement with the City for the fee simple conveyance of the parkland depicted in the July 4, 2022 Settlement Offer and at no cost to the City, with such conveyance to occur prior to the issuance of the first above grade building permit, to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor, or has made other arrangements for such conveyance to the satisfaction of the City Solicitor;

7. the agreement referred to in Part 2.f. above shall include terms requiring the conveyance of the parkland free and clear, above and below grade, of all easements, encumbrances, and encroachments, in an acceptable environmental condition; the owner may propose the exception of encumbrances of tiebacks, where such an encumbrance is deemed acceptable by the General Manager, Parks, Forestry and Recreation, in consultation with the City Solicitor; and such an encumbrance will be subject to the payment of compensation to the City, in an amount as determined by the General Manager, Parks, Forestry and Recreation and the Executive Director, Corporate Real Estate Management;

8. the owner has registered a Section 118 restriction on title, under the Land Titles Act, agreeing not to transfer or charge the Parkland without the consent of the City, which restriction may be released only upon the owner transferring the Parkland to the City, all to the satisfaction of the Chief Planner and Executive Director, City Planning or designate and the City Solicitor;

9. the owner has provided an updated traffic impact study (including delay information, 50th and 95th percentile queues, available storage areas for all intersections and each movement, and digital Synchro and SimTraffic files) and any other reports necessary in support of the development to the City to the satisfaction of the General Manager, Transportation Services to ensure the safe and efficient traffic operation of the driveway in the proposed location; and

10. City Council has approved the Rental Housing Demolition application 19 248116 NNY 17 RH under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006 to permit the demolition of the existing rental dwelling units at 680 and 688 Sheppard Avenue East and the owner has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing all rental housing-related matters necessary to implement City Council's decision.