Ontario Land Tribunal
Issue Date: April 05, 2023 Case No(s).: OLT-21-001651
Proceeding commenced under section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: BJL Sumach Corp. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: to permit a 143 unit mixed-use development Reference Number: 20 220233 STE 13 OZ Property Address: 471-479 Queen Street E. Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001651 OLT Lead Case No: OLT-21-001651 OLT Case Name: BJL Sumach Corp. v. Toronto (City.)
Heard: March 22, 2023
Appearances
| Parties | Counsel/Representative* |
|---|---|
| BJL Sumach Corp. ("Applicant/Appellant") | Matthew Helfand |
| City of Toronto | Colin Dougherty, Mark Crawford |
| Preserve Corktown | Douglas Best* |
Memorandum of Oral Decision Delivered by D. Chipman on March 22, 2023 and Order of the Tribunal
Introduction
1This Decision approves the settlement as endorsed by the Parties in relation to appeal brought under s. 34(11) of the Planning Act ("Act") by BJL Sumach Corp. ("Appellant") against the City of Toronto ("City") for failure to make a decision within the statutory timeframes on an application for a Zoning By-law Amendment ("ZBLA") in relation to the properties at 471, 473, 475, 477, and 479 Queen Street East.
2The original application proposed to permit a 15-storey (51.1 metres plus a 3.7-metre mechanical penthouse) mixed-use building with ground floor retail and 143 residential dwelling units. The application, through extensive discussions, is now being presented as a Settlement Proposal.
3The sworn Affidavit of Peter F. Smith was received as part of the Witness Statement and as noted below was marked as Exhibit 1. Mr. Smith who is a Registered Professional Planner with Bousfields Inc. was affirmed under oath and qualified to give expert opinion evidence in the area of land use planning.
4Submissions in support of a revised proposal for the Development ("Revised Development") of the land were submitted with the consent of the Parties which results in an amended Zoning By-law for a mixed-use development at 471-479 Queen Street East.
5The following materials were received and marked as Exhibits to the hearing:
- Exhibit 1: Witness Statement of Peter Smith, Land Use Planner
- Exhibit 2: Document Book
- Exhibit 3: Visual Evidence Book
- Exhibit 4: Revised draft Zoning By-Law Amendment ("Revised ZBLA").
The Revisions to the Development
6The Tribunal was advised that the final resolution has resulted in revisions that meet the expectations of the Parties and is considered to achieve the required conformity with the City's urban design and planning policies. It is the revised Development and Revised ZBLA that were presented with the assistance of expert planning and urban design evidence from Mr. Smith.
7Mr. Smith provided the Tribunal with a brief chronology of the application, context of the site and surrounding area and a very comprehensive overview of the revisions incorporated as follows:
- The setback to the south (rear) wall of the building was increased, thereby increasing the separation from the south side of rear lane from 5.5 metres to 6.0 metres.
- The height of the podium along Queen Street was reduced from 7 storeys to 6 storeys.
- The podium cantilever, which is now from Levels 3 to 6, was reduced from 1.2 metres to 0.6 metres.
- Above Level 14, the 2.5 metre setback from the south elevation was moved to the north elevation to decrease the massing facing Queen Street East.
- Vehicular access will no longer be provided from Queen Street East. Inbound and outbound vehicular access will be provided from Sumach Street.
- The loading area has been fully enclosed in the base building, which has filled in the area formerly occupied by the north/south drive aisle, with a proposed overhead automatic garage door at the southern end of the loading area to screen it from the public realm.
- Amenity space has been increased from 3.34 square metres per unit to 4.0 square metres per unit, including 2.95 square metres per unit of indoor space and 1.05 square metres per unit of outdoor space. Additional indoor and outdoor amenity area has been included on the amenity/mechanical penthouse level.
Planning Evidence, Analysis and Findings
8The Tribunal accepts the unchallenged evidence of Mr. Smith and finds that based upon the revisions and modifications, as reflected and permitted through the draft Revised ZBLA, the revised proposal is consistent with the Provincial Policy Statement, conforms to the Growth Plan, as it has been amended, conforms to the City's planning policies as set out in the Official Plan and related plans. In coming to this conclusion, the Tribunal finds that the proposed development has regard for those matters of Provincial interest set out in s. 2(1) of the Act.
9Mr. Smith opined that the Revised Development proposal represents good planning and good urban design and has recommended approval in accordance with the Revised draft ZBLA marked as Exhibit 4.
10The Tribunal heard the proposed development will fit harmoniously with the existing and planned built form context and will enhance the area by intensifying an underutilized site in the Downtown while supporting the achievement of policy directions, promoting intensification within built-up urban areas and the efficient use of land, particularly in locations that are well served by municipal infrastructure, including existing and planned higher-order transit.
11The Tribunal heard that the site has been identified as an "urban growth centre" in the Growth Plan for the Greater Golden Horseshoe (the "Growth Plan"). In addition, the site is located within a "major transit station area" as defined by the Growth Plan and is adjacent to the 501 Queen streetcar route and within close proximity to the 504 King streetcar route. The planned Ontario Line, future Corktown station will be located approximately 620 metres from the site with the future Moss Park station being located approximately 850 metres from the site. As well, the site is approximately a 20-minute walk (approximately 1.65 kilometres) from the Queen subway station on the Yonge-University-Spadina subway line.
12Pursuant to the Mixed-Use Areas designation in the Official Plan, its Mixed-Use Areas 3 designation in the Downtown Plan and its inclusion within Mixed-Use Area "D" (Queen Street) in the in-force King Parliament Secondary Plan, the site is identified for growth and intensification.
13The Tribunal heard that the proposed development represents an appropriate form of residential/mixed-use intensification in a location that is well suited for redevelopment with a level of intensification which is appropriate given the site's proximity to municipal infrastructure, including public transit, as well as the wide array of commercial, service and institutional uses within the area.
14Mr. Smith reviewed the draft Revised ZBLA marked as Exhibit 4 and appended as Attachment 1 to this Decision and Order. The instrument will permit the Revised Development as presented and includes three diagrams outlining the assigned zones.
15The Tribunal accordingly finds that the draft Revised ZBLA attached as Attachment 1 to this Decision and Order can be approved in principle, under an Interim Order, with the Final Order to issue by the Tribunal, subject to the fulfillment of the identified conditions set out in the Order below.
16The Tribunal delivered a brief oral decision to this effect at the hearing, with this Memorandum of Decision and Interim Order to follow.
Order
17THE TRIBUNAL ORDERS that the appeal is allowed in part, and on an interim basis, the proposed Revised Development presented, and the draft Zoning By-law Amendment required to permit the Revised Development appended to this Memorandum of Decision and Order as Attachment 1, are hereby provisionally approved, in principle.
18The Tribunal will, as requested, withhold issuance of its Final Order, conditional upon the Tribunal being advised by BJL Sumach Corp. and the City that the following conditions have been met:
a) the Ontario Land Tribunal has been advised by the City Solicitor that the proposed Zoning By-law Amendment is in a form satisfactory to the City;
b) the owner has addressed all outstanding issues raised by Engineering and Construction Services as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction;
c) the owner has provided an addendum to the Transportation Impact Study from the BA Group, dated November 2020, to reflect the elimination of the access for servicing vehicles from Queen Street East to the satisfaction of the General Manager, Transportation Services;
d) the owner has made satisfactory arrangements for the construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support the development as identified in the Functional Servicing and Stormwater Management Reports accepted by the Chief Engineer and Executive Director of Engineering & Construction Services, and the Transportation Impact Study accepted by the General Manager, Transportation Services;
e) the owner has withdrawn its appeal of Official Plan Amendment 525, being the King-Parliament Secondary Plan, and the associated Zoning By-law 393-2021, as they relate to the subject lands; and
f) the owner has made satisfactory arrangements to ensure that, upon application for site plan approval, the Director, Traffic Management, Transportation Services, will work with the Applicant to establish a construction management working group that meets monthly, and invites local stakeholders, including Municipal Licensing and Standards, adjacent neighbours, local resident groups, local Business Improvement Areas and local school administration, Toronto Building and other City Divisions as requested.
19THE TRIBUNAL FURTHER ORDERS the Panel Member will remain seized for the purposes of reviewing and approving the issuance of the Final Order and with respect to any outstanding matters relating to this Interim Order.
20In the event matters arise which are related to the implementation of this Interim Order, the Tribunal may be spoken to.
21If the Parties do not submit the final Zoning By-law Amendment and provide confirmation that all other pre-requisite conditions set out in paragraph [18] above have been satisfied, and request the issuance of the Final Order, by Friday, December 1, 2023, the Applicant and the City shall provide a joint written status report to the Tribunal by that date, as to the timing of the issuance of the Final Order by the Tribunal.
The Tribunal may, as necessary, arrange the further attendance of the Parties by telephone conference call to determine the timelines for the submission of the final form of the instrument, and the issuance of the Final Order and such further follow-up as may be required to have the Final Order issued by the Tribunal.
"D. Chipman"
D. Chipman
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.
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