Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 28, 2023
CASE NO(S).: OLT-22-003826
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Northampton (Whitby) Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a 66-storey mixed-use building
Reference Number: 21 251414 STE 13 OZ
Property Address: 15 Charles Street East
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-003826
OLT Lead Case No.: OLT-22-003826
OLT Case Name: Northampton Inns (Whitby) Inc. v. Toronto (City)
Heard: in writing
APPEARANCES:
Parties
Counsel
Northampton (Whitby) Inc.
David Bronskill Max Larkin
City of Toronto
Gabe Szobel Jamie Dexter
Great World Properties Limited
Denise Baker Lara Kinkartz
Philstein Ltd.
Christie Gibson Signe Leisk
2581811 Ontario Inc.
Matthew Schuman Cynthia MacDougall
MEMORANDUM OF DECISION DELIVERED BY DAVID BROWN AND INTERIM ORDER OF THE TRIBUNAL
Link to Interim Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an appeal filed by Northampton (Whitby) Inc. (the “Appellant”) pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”) against the City of Toronto (the “City”) for its failure to make a decision on an application for a Zoning By-law Amendment (“ZBA”) within the timeframe prescribed in the Act.
2The lands that are the subject of the Appeal are known municipally as 15 Charles Street East and 16 Isabella Street (the “Subject Lands”). The Subject Lands have a lot frontage of 22.5 metres (“m”) on the south side of Charles Street East, east of Yonge Street, and includes a 6.5 m wide portion that extends to Isabella Street to the south, comprising a total lot area of 1,496 square metres (“m2”). The Subject Lands are currently occupied by an 11-storey, 115-room hotel and accessory restaurant with access on Charles Street East and service access provided from the adjacent lane (Biscuit Lane). A three-storey structure occupied by a restaurant use exists on the Isabella Street frontage.
3The ZBA will give effect to the Appellant’s proposal to redevelop the Subject Lands with a mixed-use, tall building with access provided from Biscuit Lane and the Isabella Street fronting portion of the Subject Lands to be dedicated to the City for parkland purposes.
4The ZBA together with an Application for Site Plan Approval (“SPA”) were submitted to the City on December 31, 2021. The Applications were deemed complete on January 31, 2022. The ZBA was appealed to the Tribunal on May 12, 2022, by the Appellant for the reason the City failed to make a decision within the applicable timeframes prescribed in the Act. A Community Consultation Meeting was held on February 6, 2023.
5The surrounding area context contains a broad mix of retail, commercial, cultural and entertainment, institutional and residential uses and buildings that range in age, style and height. The surrounding area is currently experiencing renewal and intensification, with many active development applications for new high-rise developments and several high-rise buildings recently constructed or currently under construction.
6The Appellant submitted a settlement offer to the City on May 30, 2023, (the “Settlement Proposal”) together with revised architectural plans, prepared by IBI Group Architects, referenced as Project No. 135134 and having a revision date of April 7, 2023 (the “Settlement Plans”). The Settlement Plans propose a 66-storey tower having a height of 207.9 m, excluding the mechanical penthouse, with a seven-storey podium base containing retail uses on the ground floor and residential uses above. 610 residential units are proposed comprised of a mix of 64 three-bedroom units, 129 two-bedroom units, 416 one-bedroom plus den units, and one studio unit. The ground floor proposes 165 m2 of retail space and there are 62 below-grade parking spaces for cars, and 210 bicycle parking spaces proposed. The Settlement Proposal includes 1,598 m2 of amenity space, with 1,218 m2 being indoor amenity space. A public park having an area of 150 m2 is proposed on the south side of the Subject Lands. Access to the parking area is provided over the adjacent laneway.
7The City Council endorsed the Settlement Proposal at its meeting on June 14, 2023. The Tribunal has been informed that the remaining Parties to this proceeding have also reached a settlement which includes the Appellant entering into a limiting distance agreement with 2581811 Ontario Inc., the owner of the adjacent properties to the west of Biscuit Lane, fronting on Yonge Street.
SUBMISSIONS AND EVIDENCE
8The Tribunal received an Affidavit from Amy Shepherd, a Registered Professional Planner, in support of the Settlement Proposal and Draft Zoning By-law (“Draft ZB”) and recommending approval of the ZBA as set out in the terms of the Settlement Proposal. The Affidavit of Ms. Shepherd was filed as Exhibit 1.
9Ms. Shepherd opined that the Settlement Proposal has regard for the applicable matters of provincial interest set out in s. 2 of the Act, specifically s. 2(h) addressing the orderly development of safe and healthy communities, s. 2(j) relating to the adequate provision of a full range of housing, s. 2(p) as the Subject Lands is an appropriate location of growth and development, s. 2(q) the Settlement Proposal is designed to be sustainable, supports public transit and is oriented to pedestrians and s. 2(r) as it promotes a built form that is well-designed and encourages a sense of place.
10In consideration of the Provincial Policy Statement, 2020 (“PPS”), Ms. Shepherd opined that the Settlement Proposal and Draft ZB are consistent with the PPS. She proffered that the Settlement Proposal supports the PPS policies relating to efficient development and land use patterns, accommodating a range of housing types, densities and mix of land use that efficiently use resources, infrastructure and services, are transit-supportive and promote active transportation. Ms. Shepherd noted that the Settlement Plans include commercial and employment uses, in the form of commercial retail space, which will contribute to long-term economic prosperity and enhance the sense of place.
11The Subject Lands are located within the Downtown Urban Growth Centre, identified on Schedule 2 of A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended (“Growth Plan”). The Growth Plan further provides for the creation of Major Transit Station Areas (“MTSA”) and the City has adopted Official Plan Amendment 524 (“OPA 524”) which created the Bloor-Yonge Station Protected Major Transit Station Area (“PMTSA”) which includes the Subject Lands.
12Ms. Shepherd reviewed the Growth Plan and proffered that the Settlement Proposal introduces additional housing options to meet the projected needs of current and future residents and supports the creation of a complete community by including commercial uses and by providing additional public parkland. Given the site's location within the Downtown Toronto Urban Growth Centre, the Settlement Plans will appropriately support the density targets and help to accommodate the anticipated high levels of population and employment in the area. Ms. Shepherd opined that the Settlement Proposal conforms with the Growth Plan.
13Ms. Shepherd undertook a detailed review of the City Official Plan (“OP”). The Subject Lands are located in the Downtown and Central Waterfront area of the City’s Urban Structure (Map 2) and are designated as Mixed Use Areas Land Use which provides for a range of residential uses, offices, retail and services, institutions, entertainment, recreation and cultural activities, parks and open spaces. Mixed Use Areas are expected to accommodate most of the increase and growth in housing, retail, office, and service employment across the City.
14Having considered Chapter 2 of the OP, Ms. Shepherd opined that the Settlement Proposal and Draft ZB conform with Chapter 2 by providing additional housing which is vital to the economic health of the City and required to accommodate the needs of a growing population and meet density targets.
15Ms. Shepherd reviewed Chapter 3 of the OP and opined that the Settlement Proposal and Draft ZB conform with Chapter 3, as it will help achieve the City's intent for the public realm by providing an engaged street edge with active uses and the expansion of public parkland. The landscape design, setbacks and active ground floor uses will promote active transportation and walkability while facilitating spaces that meet the needs of the community. The Settlement Plans provide a street-oriented building that will enhance the walking environment and improve access to the current public realm along Charles Street, as well as the abutting laneway. The Settlement Plans appropriately respond to the unique configuration of the block and its relationship and transition to existing and potential future development of properties along Charles Street, Isabella Street and Yonge Street. Further, the Settlement Plans provide a seven-storey base building and generous front yard setback that provides an attractive and animated streetwall and enhanced streetscape. The top portion of the tower steps back at each floor to provide differentiation from the balance of the tower portion. The building will provide a unique design and enhance the skyline of the City.
16Ms. Shepherd opined that the Settlement Proposal and Draft ZB conform with Chapter 4 of the OP by providing a mixed-use development within the Downtown and Central Waterfront Area, on lands designated Mixed Use Areas, that is well-served by existing rapid transit, open space, community services and employment opportunities. The Settlement Plans address the development criteria of Policy 4.5.2, by providing new high-quality commercial and residential uses within an area where residents will have access to local services and parks and be able to take advantage of nearby transit. The building is appropriately massed to provide transitions to the surrounding high and mid-rise developments while limiting the new shadow impacts on the adjacent George Hislop Park and nearby Norman Jewison Park. The Settlement Plans will enhance the public realm by providing a safe and inviting environment for residents and visitors to the neighbourhood.
17The Subject Lands are within the North Downtown Yonge Site and Area-Specific Policy 382 (“SASP 382”), known as Official Plan Amendment 183 (“OPA 183”). OPA 183 seeks to reinforce the importance of Yonge Street as the City’s iconic main street and accommodate development by identifying appropriate areas with growth potential. SASP 382 provides development policies as well as policies specific to Character Areas and the Subject Lands are located within the Yonge Street Character Area. Ms. Shepherd, having reviewed the policies of OPA 183 and SASP 382, opined that the Settlement Proposal provides an appropriate transition from adjacent development and heritage properties and that the building setbacks and massing provide adequate access to sunlight, sky view and privacy.
18Ms. Shepherd advised that the Subject Lands are also within the Downtown Secondary Plan (“DSP”) area. Having considered the policies of the DSP, Ms. Shepherd concluded that the Settlement Proposal promotes walking, cycling and transit usage and optimizes infrastructure. Further, she opined that the Settlement Plans will improve the public realm and pedestrian safety and fit harmoniously into the area’s planned and built context while minimizing adverse impacts associated with densification.
19Official Plan Amendment 352 (“OPA 352”) introduced Site and Area Specific Plan 517 (“SASP 517”) which included the Subject Lands. SASP 517 is intended to ensure tall buildings are developed with appropriate setbacks from the lot lines to the tower portion of the building to achieve appropriate separation distances between towers. Further, appropriate tower separations will ensure that individual tall buildings on a site and the cumulative effect of multiple tall buildings within a block will contribute to building strong healthy communities and will fit in with the existing and/or planned context. Ms. Shepherd opined that the Settlement Plans provide appropriate setbacks and separation from potential future development within the block and conform to the policies of OPA 352 and SASP 517
20Ms. Shepherd submitted that in order to implement the Settlement Plans an amendment to the City Zoning By-law 569-2013, as amended (“ZBL”) is required. The ZBA proposes to amend the ZBL to allow for increased height and density, reduced setbacks and other site-specific provisions. The Draft ZB will bring the zoning of the Subject Lands into conformity with the broader policy framework for the Downtown and lands within proximity to proposed PMTSAs.
21Ms. Shepherd concluded by opining that the Draft ZB, proposed to implement the Settlement Proposal, is appropriate and constitutes good planning.
22Ms. Shepherd recommended that the Tribunal allow the Appeal, in principle, and withhold issuance of the Final Order, subject to the fulfilment of the conditions described within the Settlement Proposal, as set out in her Affidavit.
ANALYSIS AND FINDINGS
23The Tribunal, having considered the uncontroverted affidavit evidence of Ms. Shepherd, accepts the opinions proffered by Ms. Shepherd and finds as follows.
24The Settlement Proposal has regard for matters of provincial interest as set out in s. 2 of the Act as it will support the orderly development of safe and healthy communities, will provide a range of housing, is an appropriate location for growth, promotes development that is designed to support public transit and pedestrians, will be sustainable and is well designed.
25The Tribunal finds that the Settlement Proposal supports provincial and municipal policy directions that support intensification and infill development on underutilized sites within the built-up urban area, particularly in locations which are well-served by municipal infrastructure, including public transit.
26The Subject Lands are in an area expected to accommodate significant growth and intensification. The Tribunal finds that the Settlement Proposal will be an efficient and optimized use of the Subject Lands with an urban form that will efficiently utilize existing infrastructure and community facilities. The convenient access to a range of transit options allows for maximum utilization of transit, minimizing vehicle trips while encouraging alternative forms of active transportation and promoting energy efficiency. The Settlement Plans propose a new building that offers opportunities for energy conservation and the incorporation of green infrastructure.
27The Settlement Proposal proposes a density that is contemplated and promoted by the PPS and Growth Plan and the Tribunal finds that the Draft ZB required to implement the Settlement Proposal is consistent with the PPS and conforms to the Growth Plan.
28The Tribunal finds that the Settlement Proposal conforms with the OP as it supports the policies for focusing growth in areas that are well-served by transit and other services and infrastructure, locating and massing new buildings to provide transition between areas of different development intensity and scale, providing a high-quality built form and building design, improving the public realm and pedestrian conditions and contributing to the achievement of a complete community.
29Further, the Tribunal finds that the Settlement Proposal appropriately responds to the policies of the OP, the DSP and SASPs, which anticipate intensifying Mixed Use Areas and the Downtown and Central Waterfront Area through the promotion of a variety of land uses, a range of housing types in terms of size and type and improvements to the public realm and municipal parkland system.
30The Tribunal is satisfied that the ZBA required to facilitate the development of the Subject Lands, in accordance with the Settlement Plans, represents good planning and is in the public interest.
31The Tribunal allows the appeals and approves the ZBA in principle, in accordance with the Settlement Proposal, the Settlement Plans and the Draft ZB included in Tribunal Exhibit 1. The Tribunal withholds issuance of its Final Order, subject to the City providing confirmation that the conditions requested have been satisfied and the Tribunal has been provided with the final form of the ZBA for approval.
INTERIM ORDER
32THE TRIBUNAL ORDERS THAT the appeals be allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [33] below and the Zoning By-Law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.
33The Tribunal will withhold the issuance of its Final Order contingent upon the receipt and approval of the Zoning By-law Amendment in its final form and confirmation from the Solicitor for the City of Toronto of the following pre-requisite matters:
a. The final form and content of the Zoning By-law Amendment submitted to the Tribunal for approval is satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;
b. Pursuant to Section 42 of the Planning Act, R.S.O. 1990, c. P. 13, as amended, prior to the first above-grade building permit, the Owner shall convey to the City of Toronto an on-site parkland dedication having a minimum size of 150 square metres to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor;
c. The on-site parkland dedication shall be subject to the owner transferring the parkland to the City of Toronto free and clear, above and below grade, of all easements, encumbrances, and encroachments, in an acceptable environmental condition;
d. The Owner has submitted an addendum to the Pedestrian Wind Study, including the identification of any required mitigation measures to be secured in the Zoning By-law Amendment and through the Site Plan Control Process, to the satisfaction of the Chief Planner and Executive Director, City Planning;
e. The Owner has addressed all outstanding issues raised by Urban Forestry as they relate to tree planting, soil volume, utility conflicts, tree protection, and Toronto Green Standards, to the satisfaction of the Supervisor, Tree Protection and Plan Review; and
f. The Owner has resolved matters related to roadway widening and conveyances, as well as matters related to functional servicing and stormwater management, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.
34The Member will remain seized to review and approve the final draft of the Zoning By-law Amendment and the issuance of the Final Order.
35If the Parties do not submit the 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 [33] above have been satisfied, and do not request the issuance of the Final Order, by Friday, August 30, 2024, 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 Zoning By-law Amendment and request for issuance of the Final Order by the Tribunal.
36The 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 instrument and the satisfaction of the contingent pre-requisites to the issuance of the Final Order.
“David Brown”
DAVID BROWN
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.
ATTACHMENT 1
CITY OF TORONTO
BY-LAW XXXX-202#
To amend the City of Toronto Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2023 as 15 Charles Street East & 16 Isabella Street
Whereas the Council of the City of Toronto has the authority to pass this By-law pursuant to Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended; and
Whereas the 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; 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, Chapter 800 Definitions.
Zoning By-law 569-2013, as amended, is further amended by applying the following zone label on the Zoning By-law Map in Section 990.10, to the lands: CR (-)(x ###) as shown on Diagram 2 attached to this By-law.
Zoning By-law 569-2013, as amended, is further amended by adding Article 900.11.10 Exception Number (x####) so that it reads:
(xxx) Exception CR (-) (xXXX)
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 15 Charles Street East and 16 Isabella Street, if the requirements of Section (-) and Schedule (-) of By-law [Clerks to supply by-law ##] are complied with, a building, structure, addition or enlargement may be constructed and used in compliance with (B) to (W) below;
(B) Despite Regulations 40.5.40.10 (1) and (2), the height of a building or structure is measured from the Canadian Geodetic Datum elevation of 215 metres, and must not exceed the height in metres specified on Diagram 3 metres to the elevation of the highest point of the building or structure and also must not exceed 67 storeys, not including a mezzanine;
(C) Despite (F) and (I) below and Regulation 40.5.40.10 the following building elements, structures, or equipment are permitted to project above the permitted maximum heights as shown on Diagram 3 of By-law [Clerks to supply by-law ##] as follows:
(i) mechanical penthouse by a maximum of 7.5 metres;
(ii) structural projections permitted by Section (D) of By-law [Clerks to supply by-law ##]; and
(iii) equipment used for the functional operation of a building including electrical, utility, ventilation equipment, chimneys, vents, roof access, maintenance equipment storage, elevator shafts, elevator overruns and structures that enclose, screen or cover these elements, architectural features, parapets, balustrades, pergolas, guardrails, roof buildup, green roof elements, outdoor furniture, walkways, planters, and elements or structures on the roof of the building used for outside or open air recreation, safety or wind protection purposes, by a maximum of 10.0 metres;
(D) Regulation 40.5.40.60(1), with respect to structural and height requirements for canopies and awnings, does not apply;
(E) Regulations 40.10.20.100(33) and Section 150.100, with respect to specific use conditions for eating establishments do not apply;
(F) Despite Regulation 40.10.40.1(1), residential use, portions of a building may be located below or on the same storey as non-residential use portions of a building;
(G) The total number of dwelling units must not exceed 620;
(H) Despite Regulation 40.10.40.10(1), the permitted maximum height of a building or structure is the numerical value, in metres, following the letters "HT" on Diagram 3 of [Clerks to supply by-law ##];
(I) Despite Regulation 40.10.40.60(9), angular plane requirements shall not apply;
(J) Despite Regulation 40.10.40.40(1), the maximum permitted gross floor area of all buildings and structures must not exceed 45,000 square metres, provided:
(i) the residential gross floor area does not exceed 44,700 square metres; and
(ii) the non-residential gross floor area does not exceed 300 square metres;
(K) Despite Regulation 40.10.40.50(1), a minimum of 2.50 square metres of amenity space for each dwelling unit must be provided, of which:
(i) at least 2.0 square metres for each dwelling unit is indoor amenity space;
(ii) at least 0.50 square metres is outdoor amenity space in a location adjoining or directly accessible to the indoor amenity space;
(iii) Regulation 40.10.40.50(2), with respect to amenity space for buildings with non-residential uses in SS1 Areas, does not apply;
(L) Despite Clause 40.10.40.60 and Regulation M below, the following elements of a building or structure are permitted to encroach into the required minimum building setbacks, as shown on Diagram 4 of By-law [Clerks to supply by-law ##]:
(i) cornices, canopies, eaves, awnings, skylights, ornamental elements, trellises, lighting fixtures, window sills, screens, fences, landscape elements, retaining walls, ramps to an underground garage, stairways, railings, architectural fins, and public art features;
(ii) parapets, window washing equipment including Building Maintenance Unit (BMU), damper equipment to reduce building movement, architectural flutes, pillars, open air recreation structures or equipment;
(iii) balconies and terraces to a maximum of 2.0 metres;
(M) Despite Regulations 40.10.40.70(1) and 40.10.40.80(1), the required minimum building setbacks and separation distances shall be provided according to Diagram 4 of this By-law. [Clerks to supply by-law ##];
(N) Despite 40.10.50.10(1), minimum yards shall be provided as shown in Diagram 4 which forms part of this exception;
(O) Minimum building height step backs shall be provided as shown in Diagram 4, which forms part of this exception;
(P) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, parking spaces must be provided and maintained in accordance with the following:
(i) a minimum of 0.09 parking spaces for each dwelling unit;
(ii) a minimum of 0.01 parking spaces to be shared between residential visitors and non-residential uses; and,
(iii) a total of 3 barrier-free parking spaces must be provided.
(Q) For each car-share parking space provided on the lands, the minimum number of parking spaces for residents required pursuant to regulation (P)(i) above may be reduced by four (4) parking spaces, up to a maximum reduction as calculated by the following formula: 4 x (the total number of dwelling units on the lands divided by 60), rounded down to the nearest whole number;
(R) For the purposes of (Q) above:
(i) car-share means the practice whereby a number of people share the use of one or more vehicles that are owned and operated by a profit or non-profit car-sharing organization, and such car-share vehicles are made available to at least the occupants of the building for short-term rental, including hourly rental; and
(ii) car-share parking space means a parking space exclusively reserved and signed for a car used only for car-share purposes;
(S) Despite Regulation 200.5.1.10(2), parking spaces may have a minimum width of 2.4 metres;
(T) A minimum of 20% of all parking spaces provided must be equipped with an energized outlet capable of providing Level 2 charging or higher to the parking space;
(U) Despite Regulations 200.5.1.10(2)(A) and (D), electric vehicle infrastructure, including electrical vehicle supply equipment, does not constitute an obstruction to a parking space;
(V) Despite Clause 220.5.10.1, one (1) Type "G" and (1) Type “C” loading space must be provided and maintained on the lot;
(W) Despite Regulations 230.5.1.10(10) and Clause 230.40.1.20, “short-term” bicycle parking spaces may be:
(i) Located in a stacked bicycle parking space arrangement;
(ii) Located, outdoors, indoors, or in an enclosed room or enclosure, and located on any floor of a building;
(iii) Located more than 2.0 metres from a pedestrian entrance to the building.
(X) Despite Regulation 230.5.1.10(9), both “long-term” and “short-term” bicycle parking spaces may be provided in a stacked bicycle parking space arrangement and in any combination of vertical, horizontal or stacked positions;
Prevailing By-laws and Prevailing Sections: (None Apply)
- Despite any severance, partition or division of the lands, the provisions of this By-law shall apply as if no severance, partition or division occurred.
Enacted and passed on, 202#
Frances Nunziata, John D. Elvidge,
Speaker Interim City Clerk
(Seal of the City)