Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 29, 2023

CASE NO(S).: OLT-22-002442

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

Applicant and Appellant: Cosmetica Investments Inc.

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

Description: Failure to adopt the requested amendment

Reference Number: 20 112107 ESC 21 OZ

Property Address: 1960 Eglington Avenue East

Municipality/UT: Toronto

OLT Case No.: OLT-22-002442

Legacy Case No.: PL200545

OLT Lead Case No.: OLT-22-002442

Legacy Lead Case No.: PL200545

OLT Case Name: Cosmetica Investments Inc. v City of Toronto

Heard: March 13, 2023

APPEARANCES:

Parties	Counsel
Cosmetica Investments Inc.	Andrew Jeanrie Stephanie Brazzell – Co-Counsel
City of Toronto	Daniel Elmadany Amanda Hill, in absentia
RioCan Holdings Inc., 2075963 Ontario Ltd. and 2076031 Ontario Ltd.	Calvin Lantz
1920 Eglinton Ave.	Max Laskin, in absentia David Bronskill, in absentia

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST AND C. HARDY ON MARCH 13, 2023 AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1Cosmetica Investments Inc. (“Appellant”) filed an appeal pursuant to s. 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the failure of the City of Toronto (“City”) to adopt its application for an Official Plan Amendment (“OPA”) relating to the property municipally known as 1960 Eglinton Avenue East, Toronto (“Subject Property”).

2The Subject Property is currently the site of an operational two-storey industrial building with surface parking and a loading area. The Subject Property is in the Golden Mile Secondary Plan study area.

3The Appellant’s proposed OPA would add a Site and Area-Specific Policy (“SASP”) relating to the Subject Property to permit a mixed-use development which includes residential units, new road, public parks, and employment uses.

4On January 5, 2023, the Tribunal was informed that all Parties had reached a proposed settlement of the appeal.

5On March 13, 2023, the Tribunal held a settlement hearing to address the proposed settlement.

BACKGROUND

6Relevant to this settlement hearing is the related Golden Mile Secondary Plan (“OPA 499”), which was adopted by City Council in October 2020. The Appellant had submitted its original OPA application to add a new SASP, as further detailed below, prior to the adoption of OPA 499. On October 26, 2020, the Appellant appealed its OPA application to the Tribunal. On November 27, 2020, the Appellant appealed parts of OPA 499 to the Tribunal.

7The Parties advised the Tribunal that the OPA presently before the Tribunal works in concert with OPA 499 resulting in some duplicative policies. The Parties further advised the Tribunal that the Appellant’s OPA 499 appeals may be resolved within the next few months. As it is the City’s practice to avoid having duplicate policies in its documents, the Parties are requesting that the Tribunal withhold its Order in the settlement hearing until policies relevant to the Subject Property in OPA 499 have been determined.

ISSUES

8When adjudicating official plan amendment appeals, the Tribunal must determine whether the proposed amendments:

a. are consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”).

b. conform with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”).

c. conforms with applicable official plans (in this case, the City Official Plan (“TOP”); and

d. represent good planning.

9In making a determination, the Tribunal must have regard to the matters of Provincial interest set out in s. 2 of the Act and have regard to the information and materials that City Council received in relation to the matters under s. 2.1(2) of the Act.

EVIDENCE AND SUBMISSIONS

10The Appellant filed an affidavit affirmed by Lindsay Dale-Harris, dated March 10, 2023, in support of the proposed settlement. Ms. Dale-Harris is a Land Use Planner and provided oral testimony at the settlement hearing. The Tribunal qualified her to provide opinion evidence in land use planning.

11The Tribunal marked the following Exhibits at the hearing:

a. Exhibit 1 – Affidavit of Lindsay Dale-Harris

b. Exhibit 2 – Draft OPA dated March 7, 2023

12The City and RioCan Holdings Inc., 2075963 Ontario Ltd. and 2076031 Ontario Ltd. support the proposed settlement and did not provide independent evidence at the settlement hearing. 1920 Eglinton Ave. was also supportive of the proposed settlement, however, was not in attendance at the settlement hearing.

13Ms. Dale Harris stated the Subject Property is approximately 4.6 hectares (ha) in size and located at the northeast corner of Eglinton Avenue East (“Eglinton Avenue”) and Warden Avenue.

14Ms. Dale-Harris advised that the Subject Property is located within the Golden Mile area, which extends from Victoria Park Avenue (on the west) to Birchmount Road (on the east) on both the north and south sides of Eglinton Avenue East within the Scarborough District of the City. This area, which was originally developed as an industrial district, is now characterized by a mix of large-format retail stores as well as employment uses.

15Eglinton Avenue East is identified as a Major Street and High-Order Transit Corridor in the TOP. The Eglinton Crosstown Light Rail Transit (ECLRT) is a major transit project which, when it opens in 2023, will provide an important east-west connection across the City. There is a planned stop within 25 metres of the Subject Property at Eglinton Avenue East and Warden Avenue (the “Golden Mile Station”).

16As set out above, prior to the adoption of OPA 499, the Appellant submitted an application to amend the TOP to add a new SASP (OPA City File No. 20 112107 ESC 21 OZ). The proposed SASP was intended to set out a high-level vision for redeveloping the Subject Property over the long term with a mix of residential and non-residential uses, new streets, parks, and open spaces, and a new modernized and expanded industrial facility to accommodate the Appellant’s operation.

17Ms. Dale-Harris provided the Tribunal with an overview of the application before the Tribunal (“Settlement Plan”) with a focus on land use and density, compatibility and mitigation, transportation, parkland, the public realm, built form and phasing. A summary of the Settlement Plan from Ms. Dale-Harris’ affidavit is as follows:

a. A new public street network will be created through the Subject Property with widths and alignments in accordance with OPA 499.

b. A public park with a minimum area of 2,470 square metres with frontages on both Ashtonbee Road and Street A. This parkland dedication will form the westerly portion of the park identified as “East Park” in OPA 499.

c. Three privately-owned publicly accessible spaces (“POPS”) with a total of approximately 2,900 square metres will be provided, as follows: a 1,600-square metre POPS will be centrally located on Block "B" with frontage on Street B; a 750-square metre POPS will be located at the northeast corner of Warden Avenue and Eglinton Avenue East; and a 570-square metre POPS will be located on the eastern portion of Block "D", abutting the public park on Block "A".

d. The Proposed SASP sets out two proposed policies designed to secure employment uses on the Subject Property.

e. There are four (4) tall buildings (A, C, D and E) ranging in height from 18-storeys to 48-storeys and one (1) mid-rise building with a height of 10-storeys. This represents a reduction in the number of tall buildings from those requested in the original OPA. There is now a single 48 storey tall building on Eglinton Avenue East and the 45-storey tall building in the original OPA has been replaced with a 10-storey mid-rise building. The 30- storey tall building on the east side of Street B has been reduced to 18 storeys, and tall building heights on the balance of Block 1 have been adjusted to optimize the number of units close to the ECLRT and minimize shadowing on the public realm, the POPS, and the future East Park.

f. The tall buildings all maintain a maximum 750 square metre tower floor plate consistent with OPA 499 (Policy 7.42 d). A minimum tower separation distance of 30 metres is proposed, which is consistent with OPA 499 (Policy 7.42 e). Six storey podiums will be provided along Eglinton Avenue East, Warden Avenue, Street A and Street B to frame the streets and contribute to a comfortable public realm.

g. The shadow studies demonstrate that the proposed building forms and heights have been carefully sited to minimize shadow impacts and maximum sunlight opportunity on the public park and the north side of the future Street A. The resulting shadowing for the development proposed within the Settlement Plans generally complies with the sun/shadow policies in OPA 499 on new parks (Policy 7.47). As identified by Policy 7.50, minor deviations to Policy 7.49 may be permitted through a Zoning By-law Amendment provided that the intent of the policy is maintained in a quantitative and qualitative sense.

h. A community service facility plan is required as part of any application for a Draft Plan of Subdivision or Zoning By-law Amendment and any on-site community service facilities are encouraged to be provided in an earlier phase of development. This facility may include a not-for-profit licensed Child Care Centre.

i. Given the size of the Subject Property, and the importance of the current operations of the Appellant, the development is proposed to occur in three phases. The phasing of the development is generally identified in the proposed OPA setting out what is to be included in each phase, allowing for some adjustment as to the components associated with each. Detailed phasing will be addressed and secured through future applications.

18The Settlement Plans are the result of a series of revisions, which have been made to the original OPA to provide an appropriate response to the comments provided by the City to respect the structure and key principles set out in OPA 499.

19Ms. Dale-Harris referenced sections 37-40 and 44-45 of her affidavit and opined that the Settlement Plan has regard for matters of Provincial interest, including the orderly development of safe and healthy communities; the adequate provision of a full range of housing; adequate provision of employment opportunities; the appropriate location of growth and development; and the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians.

20Ms. Dale-Harris referenced sections 52-59 of her affidavit which illustrate the key elements of the Settlement Plan that conform with the Growth Plan. She opined that the Settlement Plan seeks to establish complete communities and optimize the use of major transit investment; provides an appropriate level of intensification around the Golden Mile Station, prioritizes the support of transit infrastructure and the creation of active transportation networks, provides for opportunities for significant employment uses, provides opportunities for the provision of housing, optimizes the use of land and infrastructure (both existing and planned) and minimizes the effects of climate change.

21Ms. Dale-Harris testified that the proposed OPA supports and conforms with the TOP’s in-force growth management strategy and Land Use Compatibility policies set out in Chapter 2, the policies with respect to the Public Realm, Built Form, Housing and Parkland in Chapter 3, the land use policies set out in Section 4, and the Secondary Plan policies, as implemented through OPA 499, identified in Section 5. These policies recognize the importance of well-designed and appropriate levels of intensification for both residential and employment uses directly related to the use and support of transit.

22Ms. Dale-Harris summarized her evidence by advising the Tribunal that the proposed OPA has regard to matters of Provincial interest in the Act, is consistent with the PPS and conforms with the Growth Plan. Further, it conforms with the mixed-use area designation policies as well as those set out in Chapters 2 and 3 of the TOP. The Proposed OPA provides for a development which is contextually appropriate, will facilitate a comprehensive, transit-supportive, and complete mixed-use community along the ECLRT within the Golden Mile Secondary Plan area.

23Ms. Dale-Harris opined that the proposed OPA represents good planning, is in the public interest, and should be approved.

24There were no concerns identified with Ms. Dale-Harris’ evidence from the other Parties of the appeal.

25The Parties are jointly requesting that the Tribunal allow the appeal in part and approve the OPA, in principle. The Parties are further requesting that the Tribunal withhold the final Order subject to the following conditions:

a. the final form of the OPA is to the satisfaction of the Chief Planner and Executive Director, City Planning, and the City Solicitor, including any revisions to the maps and schedules to the OPA as may be necessary to implement the proposed development on the Subject Property; and

b. the Appellant has agreed to resolve its appeal of OPA 499, including the GMSP to implement the proposed development and that OPA 499, as adopted by City Council, is brought into force as it applies to the Subject Property, subject to any authorized changes as may be required as determined by the Chief Planner and Executive Director, City Planning and the City Solicitor to implement the proposed development for the Subject Property, including, but not limited to, minimizing duplicative/repetitive policies, maps or references and, if deemed appropriate, incorporating the proposed SASP into Section 14 of the GMSP, instead of Chapter 7, Site and Area Specific Policies of the Official Plan.

FINDINGS

26Based on the uncontested opinion evidence of Ms. Dale-Harris, the Tribunal finds that the proposed OPA is consistent with the PPS and conforms with the Growth Plan and TOP. The Tribunal has had regard to the City’s applicable policies and guidelines and the matters of provincial interest in s. 2 of the Act as well as the information and materials that City Council received in relation to the matter. The Tribunal finds that the proposed OPA constitute good planning.

INTERIM ORDER

27The Tribunal orders that the appeal is allowed, in part, on an interim basis contingent upon confirmation, satisfaction or receipt of the conditions set out in paragraph 28 below, and the Official Plan Amendment set out in Attachment 1 to this Interim Order is hereby approved in principle.

28The Tribunal will withhold the issuance of the Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:

a. the final form of the Official Plan Amendment is to the satisfaction of the Chief Planner and Executive Director, City Planning, and the City Solicitor; including any revisions to the maps and schedules to the Official Plan Amendment as may be necessary to implement the proposed development on the lands municipally known as 1960 Eglinton Avenue East; and

b. the Owner has agreed to resolve its appeal of Official Plan Amendment 499, including the Golden Mile Secondary Plan to implement the proposed development and that Official Plan Amendment 499 as adopted by City Council is brought into force as it applies to the lands subject of the appeal, subject to any authorized changes as may be required as determined by the Chief Planner and Executive Director, City Planning and the City Solicitor to implement the proposed development for the lands subject of the appeal, including, but not limited to, minimizing duplicative/repetitive policies, maps or references and, if deemed appropriate, incorporating the proposed Site and Area-Specific Policy into Section 14 of the Golden Mile Secondary Plan, instead of Chapter 7, Site and Area Specific Policies of the Official Plan.

29If the Parties do not submit the final drafts of the Official Plan Amendment and provide confirmation that all conditions to the issuance of the Final Order set out in paragraph 27 above have been satisfied, and do not request the issuance of the Final Order by September 30, 2023, the Parties shall provide a written status update 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 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 conditions 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.

30This Panel will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and the issuance of the Final Order.

31The 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.

“W. Daniel Best”

W. DANIEL BEST

MEMBER

“C. Hardy”

C. HARDY

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.

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