Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 22, 2023
CASE NO(S).:
OLT-22-002141
OLT-22-003090
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
MPI Sherbourne Inc.
Subject:
Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment
Description:
To permit a 10-storey student residence building
Property Address:
294, 296, 298, and 300 Sherbourne Street
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-002141
OLT Lead Case No.:
OLT-22-002141
OLT Case Name:
MPI Sherbourne Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
MPI Sherbourne Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a 10-storey student residence building
Property Address:
294, 296, 298 and 300 Sherbourne Street
Municipality/UT:
Toronto/Toronto
Municipality File No.:
21 178622 STE 13 OZ
OLT Case No.
OLT-22-002142
OLT Lead Case No.:
OLT-22-002141
PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended
Appellant:
MPI Sherbourne Inc.
Subject:
Appeal of refusal of Heritage Permit Application
Property Address:
294, 296, 298 and 300 Sherbourne Street
Municipality:
City of Toronto
OLT Case No.:
OLT-22-003090
OLT Lead Case No.:
OLT-22-003090
OLT Case Name:
MPI Sherbourne Inc. v. Toronto (City)
Heard:
September 18, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
MPI Sherbourne Inc.
Meaghan Barrett Eileen Costello (in absentia)
City of Toronto
Ray Kallio
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON SEPTEMBER 18, 2023 AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1This was a Settlement Hearing regarding appeals by MPI Sherbourne Inc. (“Applicant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act (“Act”) and s. 42(6) of the Ontario Heritage Act (“OHA”) for the lack of decision on applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) as well as the refusal of an application for a Heritage Permit by the City of Toronto (“City”) for the properties municipally known as 294, 296, 298 and 300 Sherbourne Street (“Subject Site”).
2The property at 300 Sherbourne Street, which is currently occupied by the Kennedy Residence, a 2-1/2 storey long term care building, was incorporated into the project following a community consultation meeting held in January 2023. As a result of the addition of this property, notice of the hearing event was issued 60 days in advance of this Settlement Hearing to the additional properties within the new 120 metre (“m”) radius triggered by the expanded site. The Tribunal received and marked the Affidavit of Service confirming notice as Exhibit 1. No additional requests for Party or Participant status were received as a result of the expanded notice.
3The Settlement offer includes a new Heritage Permit application under s. 42 of the OHA to alter the on-site heritage resource (the Kennedy Residence) at 300 Sherbourne Street. The Tribunal was advised at the Hearing by Counsel for the Applicant that the Parties were now seeking an Interim Decision to adjourn the OHA appeal sine die and to approve the OPA and ZBA in principle on an interim basis subject to conditions. Counsel for the City confirmed the City’s agreement regarding this course of action.
HEARING
4The Tribunal received and marked the following:
Exhibit 1 – Affidavit of Service Exhibit 2 – Witness Statement of Courtney Heron-Monk Exhibit 3 – Visual Exhibits (September 15, 2023) Exhibit 4 – a) Joint Document Book – Volume 1 b) Joint Document Book – Volume 2
5The Tribunal had the benefit of the oral testimony and Witness Statement of Courtney Heron-Monk, a Land Use Planner retained by the Applicant. Upon review of her Curriculum Vitae and Acknowledgement of Expert’s Duty form, the Tribunal qualified Ms. Heron-Monk to provide opinion evidence in land use planning.
SUBJECT SITE AND CONTEXT
6Ms. Heron-Monk’s detailed description of the Subject Site can be found in paragraphs [37-58] of her Witness Statement (found in Exhibit 2). In general:
i. It is located on the west side of Sherbourne Street, approximately 60 m south of Gerrard Street East;
ii. It is approximately 1,848 square metres (“sq. m”) in size and generally rectangular in shape, with a frontage of approximately 44 m along Sherbourne Street and an east-west depth of approximately 42 m;
iii. The property at 294 Sherbourne Street and the Kennedy Residence on 300 Sherbourne Street are both listed on the City’s Heritage Register;
iv. It is located in the Downtown East area and within the Garden District neighbourhood;
v. It is located within 2.5 kilometres (“km”) of four major post-secondary institutions in the Downtown, including Toronto Metropolitan University, the University of Toronto’s St. George Campus, the Ontario College of Art and Design and George Brown College’s St. James Campus; and
vi. It has excellent access to public transit, including bus, subway and streetcar options and is also well-connected to the City’s cycling network.
(Exhibit 3, p. 3)
7In terms of the neighbourhood context, the Garden District features eclectic and varied built form, with low-rise house-form dwellings and taller building forms, including apartment buildings ranging between five storeys and 50 storeys, with even taller buildings located along the Yonge Street corridor. This district is unique with a variety of built heritage resources and iconic parks, including Allan Gardens.
PROPOSAL
8The proposal is for a 20-storey student residence building with a three-storey (12.35 m) base building and a 17-storey element above, with an overall height of 65.5 m, including the mechanical penthouse. It is proposed to include 12,920 sq. m of Gross Floor Area, resulting in a density of 7.0 Floor Space Index (“FSI”). The building would include a total of 185 units and 392 beds.
9The following chart summarizes the changes from the original proposal:
(Exhibit 2, paragraph 36)
LEGISLATIVE TESTS
10In making its Decision on the proposed OPA and ZBA before it, the Tribunal must be satisfied that they are consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with applicable provincial plans and Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and be satisfied that the proposed instruments represent good planning and are in the public interest.
PLANNING EVIDENCE
11Regarding s. 2 of the Act, Ms. Heron-Monk was of the opinion that the proposal had appropriate regard for the matters of provincial interest. She stated that the proposal is appropriately located near post-secondary institutions in an area which is planned for growth and well-served by existing and planned transit. It has been carefully designed to incorporate the on-site heritage resource at 300 Sherbourne Street and to also be compatible with the character of the neighbourhood.
12In terms of the PPS, Ms. Heron-Monk opined that the proposal is consistent, and specifically implements the policies pertaining to residential intensification, cultural heritage conservation, the provision of a range and mix of housing options and the efficient use of land and infrastructure.
13It was her opinion that the proposal conforms with the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and specifically with the “policies that seek to optimize the use of land and infrastructure and to encourage growth and intensification in “strategic growth areas”, including “urban growth centres” and “major transit station areas”.”
14With regard to the OP, Ms. Heron-Monk was of the opinion that the proposal:
i. Provides needed student housing which will support the expansion of the nearby post-secondary institutions;
ii. Helps to preserve the architectural and cultural heritage of the area;
iii. Will respect the character of the buildings, streetscapes and open space patterns in this Apartment Neighbourhood;
iv. Directs targeted growth to a transit-supportive area and will support transit ridership and active transportation;
v. Features a building design that conserves the integrity of the cultural heritage value of the site and surrounding area; and
vi. Is consistent with the development criteria for Apartment Neighbourhoods as set out in Policy 4.2(2) specifically with regard to appropriate transition, angular plane, minimization of shadow impacts and provision of high-quality indoor and outdoor amenity spaces.
15Ms. Heron-Monk also explained that the proposal:
i. Is consistent with the objectives of the Garden District Heritage Conservation District;
ii. Meets the key objectives of the Garden District Site and Area Specific Policy 461;
iii. Conforms with the direction of the Downtown Secondary Plan; and
warrants relief from the Downtown Tall Building Setback By-laws.
16Regarding Zoning By-law No. 569-2013, Ms. Heron-Monk opined that the proposed ZBA would “introduce site-specific performance standards to permit the proposed development … [and that the proposed ZBA] is appropriate and will support provincial and municipal policy objectives ….” She was also of the opinion that the conditions were appropriate.
17In conclusion, Ms. Heron-Monk opined that:
the OPA and ZBA that permit the Proposed Development are consistent with the PPS, conform with the Growth Plan and conform with the Official Plan. The proposal represents an appropriate level of intensification at a suitable location and in an appropriate built form based on the existing and planned context of the site. The proposed building location, height and massing would be appropriate for the site and compatible with the surroundings, would bring much-needed student housing with associated amenities to the site and contribute to an expanded and enhanced public realm along Sherbourne Street. (Exhibit 2, paragraph [180])
FINDINGS
18The Tribunal accepts the uncontested evidence of Ms. Heron-Monk and similarly finds that the requested OPA and ZBA: are consistent with the PPS; conform with the Growth Plan; conform with the City’s OP, including the Downtown Secondary Plan; and also have appropriate regard for OPA 352, OPA 524, the Garden District Heritage Conservation District Plan and the Tall Building Design Guidelines. Moreover, the Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and finds that the proposed instruments represent good planning in the public interest.
19Specifically, the Tribunal finds that the proposal will provide needed student housing, in an appropriate, transit-supportive location while maintaining and restoring part of the on-site heritage resource at 300 Sherbourne Street, respecting the character of the area and limiting shadowing on Allan Gardens.
20As a result of the foregoing, the Tribunal will approve the proposed OPA and ZBA, in principle, and withhold the Final Order until the conditions are met.
INTERIM ORDER
21THE TRIBUNAL ORDERS THAT the appeal brought under s. 42(6) of the Ontario Heritage Act is adjourned sine die;
22THE TRIBUNAL ORDERS THAT the remaining appeals brought under s. 22(7) and s. 34(11) of the Planning Act are allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [23] below, and the Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) set out in Attachments 1 and 2 (respectively) to this Interim Order, are hereby approved in principle.
23The Tribunal will withhold the issuance of its Final Order contingent upon confirmation by the Applicant or the City Solicitor, of the following pre-requisite matters:
i. The Tribunal has received, and approved, the OPA and the ZBA submitted in final forms, confirmed to be satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;
ii. The Tribunal is advised that the Functional Servicing Report, Stormwater Management Report, Hydrogeological Report and Groundwater Report have been completed to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
iii. The Tribunal is advised that the Applicant has entered into the appropriate agreement(s) with the City for the design, construction and financial securities for any improvements to the municipal infrastructure, in connection with a Functional Servicing Report as accepted by the City's Chief Engineer and Executive Director, Engineering and Construction Services should such Director determine that improvements to such infrastructure are required, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
iv. The Tribunal is advised that Applicant has submitted a complete re-submission with revised plans for the expanded development site, to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning; and
v. The Tribunal is advised that the Applicant has provided a detailed Conservation Plan, prepared by a qualified heritage consultant that is consistent with the conservation strategy set out in the Heritage Impact Assessment prepared by ERA Architects Inc., dated Friday, June 23, 2023, to the satisfaction of the Senior Manager, Heritage Planning.
24The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan and ZBA and the issuance of the Final Order.
25If the Parties do not submit the final drafts of the Official Plan and ZBA, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [23] above have been satisfied, and do not request the issuance of the Final Order within 180 days of the issuance of this Interim Order, the Applicant and the City 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 and ZBA and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
26The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.
“S. Bobka”
S. BOBKA 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.
ATTACHMENT 1
Authority: Ontario Land Tribunal Decision issued on XXXX, 2023 and Order issued on XXXX, 2023 in Tribunal File OLT-22-002141
CITY OF TORONTO
BY LAW No. XXXX-20XX (OLT)
To adopt Amendment No. 682 to the Official Plan of the City of Toronto with respect to lands municipally known in the year 2022 as 294-300 Sherbourne Street
Whereas authority is given to the Ontario Land Tribunal under the Planning Act, R.S.O. 1990, c. P.13, as amended, upon hearing the appeal of the owners, to pass this By-law; and
Therefore the Official Plan of the City of Toronto, as amended, is further amended by the Ontario Land Tribunal as follows:
1. The attached Amendment No. 682 to the Official Plan is hereby adopted pursuant to the
Planning Act, R.S.O. 1990, c P.13, as amended.
ENACTED AND PASSED this day of , A.D. 20XX.
Ontario Land Tribunal Decision issued on XXXX, 2023 and Order issued on XXXX, 2023 in Tribunal File OLT-22-002141
City of Toronto By-law XXXX-2022(OLT)
AMENDMENT NO. 682 TO THE OFFICIAL PLAN
LANDS MUNICIPALLY KNOWN IN THE YEAR 2022 AS
294-300 SHERBOURNE STREET
The following text and map constitute Amendment No. 682 to the City of Toronto Official Plan. The Official Plan of the City of Toronto is amended as follows:
Map 18, Land Use Plan is amended by re-designating the lands known municipally in the year 2022 as 294-300 Sherbourne Street from Neighbourhoods to Apartment Neighbourhoods, as shown on the attached Schedule 1.
Site and Area Specific Policy 461, is amended by adding a new Section 7 - Site Specific Policies, and new Policy 7.1 as follows:
Section 7 – Site Specific Policies
294-300 Sherbourne Street
7.1 294-300 Sherbourne Street
Notwithstanding the policies in Site and Area Specific Policy 461, on the lands municipally known in the year 2022 as 294-300 Sherboune Street:
a) a building height of up to 65.5 metres is permitted; and a minimum building setback of 10 metres is required from the properties within the Neighbourhoods designation to the north and west of the lands.
ATTACHMENT 2
Authority: Toronto and East York Community Council Item [-], as adopted by City of Toronto Council on , 20
CITY OF TORONTO
BY-LAW [Clerks to insert By-law number]
To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2022 as 294-300 Sherbourne Street.
Whereas Council of the City of Toronto has the authority pursuant to Section 34 of the Planning Act, R.S.O. 1990, c. P. 13, as amended, to pass this By-law; and
Whereas Council of the City of Toronto has provided adequate information to the public and has held at least one public meeting in accordance with the Planning Act, as amended; and
The Council of the City of Toronto enacts:
The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.
The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, as amended, Chapter 800 Definitions.
Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.1 respecting the lands outlined by heavy black lines from a zone label of R (d1.0)(x865) to a zone label of R (d1.0) (xXXX) as shown on Diagram 2 attached to this By-law.
Zoning By-law 569-2013, as amended, is further amended by adding Article
900.2.10 Exception Number XXX so that it reads:
(XXX) Exception R XXX
The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections:
Site Specific Provisions:
(A) On lands municipally known as 294-300 Sherbourne Street, if the requirements of By-law [Clerks to insert By-law number] are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to (P) below;
(B) Despite regulation 10.5.40.10(1), the height of a building or structure is
the distance between the Canadian Geodetic Datum of 92.9 metres and the elevation of the highest point of the building or structure;
(C) Despite regulation 10.10.20.10(1), a university residence is a permitted use on the lot;
(i) For the purpose of this by-law, a university residence means a building that may be owned or operated by a college, and it may be owned or operated by another party for the use/benefit of students attending one or more universities, polytechnical institutes, colleges, or other educational institutions.
(D) Despite regulation 10.10.40.10(1), the permitted maximum height of a building or structure is the number in metres following the letters "HT" as shown on Diagram 4 of By-law [Clerks to insert By-law number];
(E) Despite regulations 10.5.40.10(2) and (4) and 10.10.40.10(8), (9) and (10) and (D) above, the following equipment and structures may project beyond the permitted maximum height shown on Diagram 4 of By-law [Clerks to insert By-law number]:
(i) equipment used for the functional operation of the building, including electrical, utility, mechanical and ventilation equipment, as well as enclosed stairwells, roof access, maintenance equipment storage, elevator shafts, chimneys, and vents, by a maximum of 6.0 metres;
(ii) structures that enclose, screen, or cover the equipment, structures and parts of a building listed in (i) above, including a mechanical penthouse, by a maximum of 6.0 metres;
(iii) architectural features, parapets, and elements and structures
associated with a green roof, by a maximum of 3.0 metres;
(iv) building maintenance units and window washing equipment, by a maximum of 6.0 metres;
(v) planters, landscaping features, guard rails, and divider screens on a balcony and/or terrace, by a maximum of 3.0 metres;
(vi) antennae, flagpoles and satellite dishes, by a maximum of 6.0 metres; and
(vii) trellises, pergolas, and unenclosed structures providing safety or wind protection to rooftop amenity space, by a maximum of 6.0 metres;
(F) Despite regulation 10.10.40.30(1), the maximum permitted building depth is 42.85 metres;
(G) Despite regulation 10.10.40.40(1), the permitted maximum gross floor area of all buildings and structures shall not exceed 15,000 square metres;
(H) Despite regulation 10.10.40.50(1), no outdoor amenity space is required on the lot;
(I) Despite Clauses 10.5.40.70 and 10.10.40.70, the required minimum building setbacks are as shown in metres on Diagram 4 of By-law [Clerks to insert By-law number];
(J) Despite regulation 10.10.40.80(1), the required separation of main walls are as shown in metres on Diagram 4 of By-law [Clerks to insert By-law number];
(K) Despite Clause 10.5.40.60 and (I) and (J) above, the following elements may encroach into the required minimum building setbacks and main wall separation distances as follows:
(i) decks, porches, and balconies, by a maximum of 3.0 metres;
(ii) canopies and awnings, by a maximum of 3.0 metres;
(iii) exterior stairs, access ramps and elevating devices, by a maximum of 3.0 metres;
(iv) cladding added to the exterior surface of the main wall of a
building, by a maximum of 1.0 metres;
(v) architectural features, such as a pilaster, decorative column, cornice, sill, belt course, or chimney breast, by a maximum of 1.0 metres;
(vi) window projections, including bay windows and box windows, by a maximum of 1.0 metres;
(vii) eaves, by a maximum of 1.0 metres;
(viii) dormers, by a maximum of 1.0 metres; and
(ix) air conditioners, satellite dishes, antennae, vents, and pipes, by a maximum of 1.0 metres; and
(L) Despite regulation 200.5.10.1(1) and Table 200.5.10.1, parking spaces
must be provided in accordance with the following:
(i) a minimum of 3 visitor parking spaces shall be provided on the lot;
(M) Despite regulations 230.5.10.1(1) and (5) and Table 230.5.10.1(1), bicycle parking spaces must be provided in accordance with the following minimum rates:
(i) 0.9 "long-term" bicycle parking spaces for each dwelling unit;
(ii) 0.2 "short-term bicycle parking spaces for each dwelling unit;
(N) Despite regulations 230.5.1.10(4) and (5), a stacked bicycle parking space must have the following minimum dimensions:
(i) a minimum length of 1.8 metres;
(ii) a minimum width of 0.25 metres; and
(iii) a minimum vertical clearance of 1.2 metres;
(O) Despite regulation 230.5.1.10(4), a stacked bicycle parking space may overlap horizontally with another stacked bicycle parking space;
(P) Regulation 10.5.40.10(4) respecting landscaping requirements for an apartment building does not apply;
(Q) Despite regulation 10.5.50.10(5), no landscaping is required abutting the Residential Zone category;
(R) Despite regulation 10.5.100.1.(5), vehicular access to the lot will be provided via the adjacent laneway;
(S) Despite Regulation 800.50(15) and (H) above, facilities included in the indoor amenity space may be made available for use by persons who are not occupants of the building for a fee, and such fee may be payable through a club membership.
Prevailing By-laws and Prevailing Sections: (None Apply)
- Despite any existing or future consent, severance, partition or division of the lands, the provisions of By-law [Clerks to insert By-law number] apply to the whole of these lands, as if no consent, severance, partition or division had occurred.
Enacted and passed on [Clerks to insert date].
Frances Nunziata, John D. Elvidge,
Speaker City Clerk
(Seal of the City)