Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 29, 2023

CASE NO(S).: OLT-22-003330 (Formerly PL190476)

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

Applicant and Appellant: Aryeh Construction Limited

Subject: Application to amend Zoning By-law – Refusal or neglect to make a decision

Purpose: To permit an amendment to the site-specific zoning by-law for the purpose of increasing the height of both residential towers from 19-storeys to 39-storeys and to decrease the height of the podium by one-storey

Property Address: 8293 and 8303 Warden Avenue

Municipality: City of Markham

Municipal File No.: PLAN 19 124607

OLT Case No.: OLT-22-003330

Legacy Case No.: PL190476

OLT Lead Case No.: OLT-22-003330

Legacy Lead Case No.: PL190476

OLTT Case Name: Aryeh Construction Limited v. Markham (City)

Heard: October 24, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

Aryeh Construction Limited

Jennifer Meader*

City of Markham

Andrew Baker* Victoria Chai* Maggie Cheung-Madar* Pitman Patterson* (in absentia)

Unionville Ratepayers Association

Peter Miasek

Markham Centre Landowners Group

Jason Park*

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON OCTOBER 24, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter involves a settlement hearing for an appeal by Aryeh Construction Limited (“Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) for the failure of the City of Markham (“City”) to make a decision within the statutory timeframes on a Zoning By-law Amendment (“ZBA”) for the properties municipally known as 8293 & 8303 Warden Avenue (“Subject Property”).

2The current development approvals for the Subject Property were provided by an Ontario Municipal Board Order in 2012. The proposal now seeks to amend Zoning By-law No. 2004-196, as amended (“ZBL”), to permit the increase in height of both residential towers from 19-storeys to 45-storeys for the north tower and from 19-storeys to 42-storeys for the south tower, to decrease the height of the podium by one storey to 8-storeys and to increase the number of units by 303 units.

3In addition to the statutory Parties, two additional Parties, the Unionville Ratepayers Association (“Ratepayers”) and the Markham Centre Landowners Group (“MCLOG”) were previously granted status and attended the settlement hearing.

4The Tribunal was advised that the settlement of the ZBA led to changes in the Draft Plan of Subdivision (“Draft Plan”) and associated Revised Conditions to the proposed Draft Plan (“Revised Conditions”). The Tribunal heard submissions from the Parties that the Draft Plan and Revised Conditions were within its jurisdiction and that all parties with an interest in that matter were well aware of the changes to the Draft Plan and Revised Conditions, as it had been discussed at the last Case Management Conference for the ZBA (in July 2022). The Tribunal was satisfied that the Draft Plan and Revised Conditions remain within its jurisdiction through case file PL090996; within that Order, the Tribunal ordered that “if any changes are required to be made to the draft plan, the Tribunal may be spoken to.” The Tribunal determined that it would be appropriate and efficient to hear the matters together as permitted under Rules 16.1 and 16.3 of the OLT’s Rules of Practice and Procedure.

5Counsel for the MCLOG requested that the Tribunal acknowledge that there are Minutes of Settlement (“MOS”), dated June 29, 2022, between the Appellant and the MCLOG.

SUBJECT PROPERTY

6The Subject Property has an area of 1.86 hectares (“ha”) and is located on the east side of Warden Avenue, south of Highway No. 7, in the Centre North Precinct of the Markham Centre planning district. It is identified as Part of Lot 10, Concession 5, in the City.

LEGISLATIVE TESTS

7In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans (in this case the York Region Official Plan [“ROP”] and the Markham Official Plan [“OP”]). In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and, in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.

8In considering a draft plan of subdivision, the Tribunal shall have regard to the criteria set out in s. 51(24) of the Act and be satisfied that the proposal is consistent with the PPS and conforms to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). Pursuant to s. 51(25) of the Act, the Tribunal may also consider and impose conditions that are determined to be reasonable, having regard to the nature of the proposed subdivision.

HEARING

9The Tribunal received and marked the following:

Exhibit 1: Affidavit of Service (previously marked)

Exhibit 2: Affidavit of Peter Swinton

Exhibit 3: Draft Order – October 23, 2022

10To support the proposal, the sole witness called was Peter Swinton, a land use planner who, upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty form, was qualified by the Tribunal to provide opinion evidence in land use planning.

BACKGROUND

11Mr. Swinton provided the Tribunal with a thorough overview of the proposal. He noted that the:

Existing Permissions allow for the development of two 19-storey towers including podiums of 9 and 10 storeys, which altogether would contain a total of 530 units. The development is permitted to occur on the southern portion of the Aryeh Lands. An approved driveway directly from the Aryeh Lands to the proposed road network would allow full moves access to the residential development. Three blocks of the Aryeh Lands will be dedicated to the City for parkland purposes, including the entire block north of a new public road, which is Block A on the Draft Plan [shown in Attachment ‘B’ to this Decision]. Blocks E and F will be strata parkland, with privately-owned parking structures below grade. The total amount of land to be dedicated for parkland purposes is 2.05 acres (0.83 hectares). A right-of-way is to be created through the Draft Plan to connect Clegg Road to the west, to Rougeside Promenade to the east….” (Exhibit 2, paragraph 6)

12In the application to the City on June 17, 2019, Aryeh submitted the ZBA to:

a. increase the density to 833 residential dwelling units;

b. increase the tower heights to 39 storeys (130 metres [“m”]);

c. increase the podium height to 35 m, even though the podium was reduced to 9 storeys; and

d. remove the 238.0 m Geodetic Survey of Canada (“GSC”) restriction, to allow the increased tower height.

13The settlement before the Tribunal now accounts for an increase in density (from 530 to 833 units) as identified in the ZBA and Proposed Massing Sketch (both found in Exhibit 2) and a lowering and widening of the podium to 8 storeys. This will ensure that all above grade parking within the podium will be surrounded by residential units and will not be visible from adjacent streets or parkland. As a result, the greater length of podium will have a setback of 1 m from Block F.

14As the podium height was lowered and the City requested that the heights of the two towers be varied, the towers have been increased to 45 storeys for the north tower and 42 storeys for the south tower. Despite these changes in massing, Mr. Swinton clarified that the increase of 303 units remains the same as in the June 17, 2019, ZBA application, resulting in a total of 833 units.

15The City also asked that the development site and strata park areas be shifted to the north and the Regional Municipality of York (“Region”) requested a road widening increase from the 2012 proposal (21.3 m) to the current 21.5 m. This resulted in an update to the Draft Plan (dated October 13, 2022, and included as Attachment “B” to this Decision.) The change in road widening reduced the park dedication to Block A by approximately 0.001 ha, which was added to Block F keeping the land dedication whole. To address the shift and potential timing changes to the road dedications, changes to the Revised Conditions (found in Attachment “C” to this Decision) are also being requested.

16Also at the City’s request, there will be commercial space with a minimum gross floor area of 195 square metres (“sq m”) on the ground floor adjacent to Rougeside Promenade.

EVIDENCE

17It was Mr. Swinton’s opinion that the

settlement before the Tribunal represents a collaborative effort between the City and Aryeh to achieve the objectives of both parties. The settlement and associated ZBA ... Draft Plan and DPCs [Revised Conditions] represent good planning and should be approved. (Exhibit 2, paragraph 50)

18Mr. Swinton testified that the proposal has appropriate regard for matters of provincial interest per s.2 of the Act. He specified that:

a. there are no natural features that would be negatively impacted;

b. the Subject Property is within the Built-up Area and does not contain any agricultural resources;

c. no known natural or mineral resources exist on the Subject Property;

d. the proposal conserves features of architectural and cultural significance;

e. the proposal is representative of the efficient use and conservation of energy and water and the efficient use of services (including communication, transportation, sewage, water and waste management systems) and will minimize waste;

f. the proposal contributes to the orderly development of safe and healthy communities and its design ensures accessibility for persons with disabilities;

g. the proposal contributes to a range of housing;

h. the proposal has been designed to be sustainable, public transit supportive and pedestrian-oriented; and

i. the proposal promotes a well-designed built form which encourages a sense of place while providing high quality, safe, accessible and vibrant public spaces.

19It was Mr. Swinton’s opinion that the proposal is consistent with the PPS, specifically policies: 1.1.1 e), 1.1.2, 1.1.3.1 through 1.1.3.7, 1.4.1, 1.4.3, 1.6.1, 1.6.7.4, and 1.7.1. He stated that increasing the density:

a. improves the cost effectiveness of the development;

b. assists in the achievement of a desired mix of land uses;

c. makes efficient use of lands within a Designated Growth Area;

d. ensures that resources (such as transit and energy) are used efficiently;

e. assists the City in meeting or exceeding the minimum standards set out in the GP and the ROP;

f. aligns with the phasing strategy for Markham Centre, facilitating the completion of Rougeside Promenade, an important east/west collector for the area;

g. supports the higher order bus rapid transit system;

h. supports active transit and public service infrastructure; and

i. assists in the achievement of a range and mix of housing types and densities.

20The GP identifies Markham Centre as an Urban Growth Centre. Mr. Swinton opined that increasing the density from 530 units (approved in 2012) to the current 833 units, provides a 57% increase which will help to meet the increased intensification objectives of the GP. He spoke to specific policies 1.2.1, 2.2.1.2, 2.2.1.3, 2.2.1.4, 2.2.2.3, 2.2.6.2 and 2.2.6.3 which promote intensification that meets the definition of ’Complete Communities’, stating that the proposal is well-situated (near parks, a school and the Rouge Valley) for residential development. Mr. Swinton also noted that the proposal “maintains its street and park friendly relationships, supports transit infrastructure in the area, and fits within the definition of Compact Built Form.” Finally, he opined that by increasing the number of smaller market units, the proposal helps to improve housing affordability (per s. 2.2.6) through intensification and density targets as well as the diversification of housing stock.

21It was Mr. Swinton’s opinion that the proposal conforms with the ROP, including specific policies 3.1.3, 3.2.3, 3.5.3, 3.5.7, 5.2.3, 5.2.4, 5.2.5, 5.2.8, 5.2.10, 5.3.1, 5.3.3 through 5.3.6, 5.4.1 through 5.4.7, 5.4.19, 5.4.20 and 5.4.23. He stated that:

a. the proposal complies with all parking standards;

b. the strata park blocks will be well-designed public spaces;

c. the scale of the proposal is consistent with nearby development and respects the transition to the heights intended along Highway 7;

d. the increase in density will help with the supply of housing within a Regional Centre;

e. the proposal fits with the intended uses for Markham Centre and the nearby Major Transit Station Area; and

f. the proposal is responsive to the ROP’s desire that the most growth should occur in Regional Centres.

22Mr. Swinton explained that the Subject Property is subject to the Markham Centre Secondary Plan, OPA 21 (“Secondary Plan”). It was his opinion that the proposal conforms with the Secondary Plan and does not require an Official Plan Amendment. He referenced specific policies including:

a. policy 3.2.1.3 that refers to height;

b. policy 3.10 that refers to Heritage Conservation; and

c. policies 4.1.3, 4.3.2.1 and 4.3.2.3 which refer to densities.

23Mr. Swinton clarified that the new OP approved by City Council in 2014 was subject to appeal, in part, at the time of the Appellant’s application in 2019. That OP designated the Subject Property as ’Mixed Use High Rise’. Mr. Swinton noted that the City “has confirmed that heights and densities within this designation are superseded by the Secondary Plan … and no OPAs to the new OP were required” of the Appellant for their application filed after 2014. It was his opinion that the proposal was in conformity with the OP.

24Mr. Swinton opined that the Draft Plan:

has appropriate regard to the heath, safety, convenience, accessibility for persons with disabilities, welfare of the present and future inhabitants of the City, and all applicable criteria in section 51(24) of the Planning Act. The DPCs [Revised Conditions] are reasonable and will allow for the implementation of the … Draft Plan.” (Exhibit 2, paragraph 49)

Throughout his evidence, Mr. Swinton explained that the proposal had regard specifically for s. 51(24) (a) – (d) and (h) – (l). Regarding the Revised Conditions, Mr. Swinton testified that the Revised Conditions were appropriate, and he noted that they reflect the City’s desire to see Block B dedicated early, as it is critical to the servicing of the proposal.

25It was Mr. Swinton’s overall opinion that the proposal has regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS, conforms with the GP, ROP, OP and Secondary Plan, and represents good land use planning in the public interest.

FINDINGS

26The Tribunal heard uncontested evidence and submissions in support of the proposed ZBA, Draft Plan and Revised Conditions and the Tribunal accepts the uncontroverted testimony of Mr. Swinton.

27The Tribunal is satisfied that the proposal:

a. is appropriately located and contributes to a ‘Complete Community’;

b. will assist with the diversification, affordability and supply of housing in the City;

c. makes efficient use of existing services and infrastructure (including transit);

d. will assist with the achievement of intensification and density targets;

e. features built form, height and massing that is consistent with, and appropriate for, the surrounding area; and

f. features well-designed public spaces.

28The Tribunal is satisfied that regard has been had for the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality, that the criteria outlined in s. 51(24) have been met and the Revised Conditions are reasonable and appropriate. The Tribunal finds that the proposal is aptly located near services and infrastructure (including transit), provides much-needed, additional, diversified housing for the area in a suitable location for intensification. Further, the proposal will contribute to the orderly development of safe and healthy communities and is not premature.

29The Tribunal is satisfied that the proposal is consistent with the PPS and conforms to the GP, ROP, OP and Secondary Plan.

30The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality and is satisfied that the proposed ZBA, Draft Plan and Revised Conditions represent good planning in the public interest.

31As a result of the foregoing, the Tribunal will approve the settlement.

ORDER

32THE TRIBUNAL ORDERS that:

a) The appeal is granted in part and the Zoning By-law Amendment is approved in the form attached to this Order as Attachment ‘A’; the appeal is otherwise dismissed;

b) The revisions to the Draft Plan of Subdivision are approved in the form attached to this Order as Attachment ‘B’;

c) The approval of the Draft Plan of Subdivision attached as Attachment ‘B’ is subject to the Draft Plan Conditions attached to this Order as Attachment ‘C’;

d) Pursuant to subsections 51(56.1) and 51(58) of the Planning Act, the City shall have the authority to clear the Draft Plan Conditions found at Attachment ‘C’ and to administer final approval of the Draft Plan of Subdivision found at Attachment ‘B’; and

e) The Tribunal may be spoken to if any issues arise regarding the clearing of any of the Draft Plan Conditions.

“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 A

Attachment B

Attachment C