Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
April 25, 2023
CASE NO(S).:
OLT-21-001649
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
BJL HP Corp.
Subject:
Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment
Existing Designation:
Mixed Use Areas
Proposed Designated:
Mixed Use Areas
Purpose:
To permit a 10-storey, 128 unit mixed use development
Property Address/Description:
2-6 Howard Park Ave
Municipality:
City of Toronto
Approval Authority File No.:
21 146414 STE 04 OZ
OLT Case No.:
OLT-21-001649
OLT File No.:
OLT-21-001649
OLT Case Name:
BJL HP Corp. 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:
BJL HP Corp.
Subject:
Application to amend City of Toronto Zoning By-law 569-2013 and former City of Toronto Zoning By-law 438-86 - Refusal or neglect of City of Toronto to make a decision
Existing Zoning:
Mixed Use
Proposed Zoning:
Mixed Use (Site Specific)
Purpose:
To permit a 10-storey, 128 unit mixed use development
Property Address/Description:
2-6 Howard Park Ave
Municipality:
City of Toronto
Municipality File No.:
21 146414 STE 04 OZ
OLT Case No.:
OLT-21-001649
OLT File No.:
OLT-21-001650
Heard:
March 27, 2023 by video hearing
APPEARANCES:
Parties
Counsel
BJL HP Corp.
Eileen Costello
City of Toronto
Nathan Muscat
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM AND C. HARDY ON MARCH 27, 2023, AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1BJL HP Corp. (“Appellant”) applied to the City of Toronto (“City”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) (collectively “Applications”) for the property municipally known as 2-6 Howard Park Avenue in the City (“Subject Property”). The City failed to render a decision within statutory timelines respecting the OPA and ZBA applications and the Appellant appealed to this Tribunal pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).
2On April 21, 2021, the Appellant submitted the Applications to the City to permit a 10-storey mid-rise mixed-use building consisting of approximately 128 residential units above grade with approximately 375 square meters (“sq m”) of grade-level retail (“Original Proposal”). A Preliminary Report prepared by City staff dated June 4, 2021, was presented to City Council on June 24, 2021, and a community consultation meeting was held on July 12, 2021.
3On November 4, 2021, the Appellant appealed the City’s failure to adopt the requested OPA and the City’s failure to make a decision on the requested ZBA.
4On January 25, 2023, revised plans were submitted to the City as part of a Without Prejudice Settlement Proposal and on February 7, 2023, City Council accepted the Settlement Proposal.
PROPOSED SETTLEMENT
5Briefly summarized, the OPA attached as Schedule A to this Decision and the ZBA attached as Schedule B to this Decision facilitate the proposed settlement. The Subject Property will be redeveloped with an 11-storey mixed-use building with an overall building height of 36 metres (“m”), a total gross floor area of 8,397 sq m , approximately 130 residential dwelling units and non-residential gross floor area of 302 sq m (“Proposed Development”).
6The Proposed Development imposes modifications responding to comments from and discussions with City staff. The following modifications to the Original Proposal are proposed:
a. Increased setbacks of the ground floor of the building to expand the public realm along street frontages, including a 6.0 metre sidewalk zone on Dundas Street West and a 4.8 metre sidewalk zone on Howard Park Avenue.
b. Reduction of the overall building height to 36 metres, which was achieved through a reduction in the height of the ground floor to 4.5 metres, a reduction of the streetwall height to 23.25 metres and wrapping the mechanical penthouse with residential units.
c. Provision of a minimum of 10 per cent of the total number of units as purpose built 3-bedroom units, a minimum of 10 per cent of the total number of units as purpose built 2-bedroom units and an additional 5 per cent of the total number of units capable of being converted to 2-bedroom units.
7The Parties jointly requested that the Tribunal approve the OPA and ZBA in principle and withhold the Final Order pending:
a. The ZBA be finalized in a form and content acceptable to the City Solicitor, Chief Planner and Executive Director, City Planning.
b. The owner has addressed outstanding issues related to site servicing and has submitted reports and drawings to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services related to:
i. Functional Servicing and Stormwater Management Report.
ii. Hydrogeological and Geotechnical Report; and
iii. Any other related engineering reports and drawings
c. The owner has agreed that the design and implementation of municipal infrastructure will be at the owner’s sole cost and expense for any upgrades or improvements to City infrastructure identified in the approved Functional Servicing and Stormwater Management, Hydrogeological and/or Geotechnical Reports, with such improvements being secured to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.
d. The owner has agreed to prepare a Construction Management Plan to the satisfaction of the Chief Planner and Executive Director, City Planning to be secured as a condition of Site Plan Approval; and
e. The owner has agreed to submit documentation and financial contributions in the form of certified cheques (overall amount to be determined) for the implementation of a Transportation Demand Management (TDM) plan prior to the Site Plan Approval. These provisions include the following items:
i. One (1) bike-share membership per unit, offered for the first year of occupancy; and
ii. A minimum of one (1) bike repair station provided on-site (together referred to as “Conditions”).
8The Parties agreed that the City Solicitor will notify the Tribunal on or before July 31, 2023, that the Conditions listed in paragraph 7 above have been satisfied and will request a Final Order, or in the alternative, will provide the Tribunal with a status update.
AREA CONTEXT
9The Subject Property is located at the northwest corner of Dundas Street West and Howard Park Avenue and is currently occupied by an automobile service and repair shop and associated surface parking. It is triangular in shape with approximately 42.4 m of frontage on Dundas Street West and approximately 44.3 m of frontage on Howard Park Avenue.
10To the north and west of the Subject Property are a variety of uses including institutional, commercial, and residential. Similarly, to the south are commercial and residential uses, including a 10-storey apartment building. To the east of the Subject Property are retail, commercial and residential uses including several properties listed on the City Heritage Register.
LEGISLATIVE CONTEXT
11On this appeal, the Tribunal must be satisfied that the proposed OPA and ZBA are representative of good planning and in the public interest. With respect to the specific legislative tests to be met, the Tribunal must be satisfied that the foregoing are consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe Area (“Growth Plan”). Additionally, the proposed modification to the OPA must conform with the policy regime of the applicable official plan, which in this instance is the City OP and the proposed amendment to the ZBA must conform with the City OP, as modified.
12Finally, the Tribunal must have regard to matters of Provincial interest set out in s. 2 of the Planning Act, as well as to the decision of the City and the information considered by it, pursuant to s. 2.1(1) of the Act.
HEARING
13On May 9, 2022, at a Case Management Conference held before a panel differently constituted, seven (7) individuals were granted Participant Status. On January 19, 2023, the Participants jointly filed one (1) Participant Statement setting out concerns that they had with the Original Proposal.
14As evidence at the hearing, the Tribunal received the following exhibits, which were identified sequentially during the hearing:
Exhibit 1: Affidavit of Peter F. Smith
Exhibit 2: Visual Evidence
Exhibit 3: Draft Official Plan Amendment
Exhibit 4: Draft Zoning By-law Amendment
15On consent of the Parties, Peter F. Smith, a Registered Professional Planner, whom the Tribunal qualified to provide land use planning and urban design opinion evidence, provided an affidavit and delivered a comprehensive contextual and planning rationale in support of the Proposed Development. He opined that the OPA and ZBA which will facilitate the Proposed Development, satisfy all requisite legislative tests and overall are representative of good planning and urban design and are in the public interest.
16During his testimony, Mr. Smith addressed concerns raised by the Participants and responded to the joint Participant statement that was filed with the Tribunal.
17The City supports the proposed settlement and did not provide evidence at the settlement hearing.
EVIDENCE
The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
18Mr. Smith indicated that the Proposed Development has appropriate regard for relevant matters of provincial interest. Specifically, it was his opinion that the proposal directly aligns with the Act given that it will provide a full range of housing options, is in an appropriate location for growth and development and is pedestrian friendly with several options for the use of public transportation.
PPS
19It was also Mr. Smith’s opinion that the Proposed Development is consistent with the PPS. The PPS encourages development patterns that support diverse, healthy, and liveable communities by encouraging intensification at appropriate locations, to accommodate growth and increase urban vitality.
20Mr. Smith highlighted Sections One and Two of the PPS during his testimony to demonstrate the alignment with the Proposed Development. Specifically, Mr. Smith suggested that it offers market-based residential types, optimizes transit investments, and minimizes land consumption and servicing costs. He also believes that the Proposed Development emphasizes the importance of using existing infrastructure before considering new development.
Growth Plan
21It is Mr. Smith’s opinion that the Proposed Development conforms with the Growth Plan and in particular, the guiding principles in Section 1.2.1 and Policies 2.2.1(2), 2.2.1(3)(c), 2.2.1(4), 2.2.2(3), 2.2.4(1), 2.2.4(2), 2.2.4(3)(a), 2.2.4(6), 2.2.4(9), 2.2.4(10), 2.2.6(1), 2.2.6(2), 3.2.1(1), 3.2.3(1), 3.2.3(2), 4.2.7(1), 4.2.7(2), Section 5.1 and Policy 5.2.5(6).
22Mr. Smith indicated that the Subject Property is included in a ‘strategic growth area’ as defined by the Growth Plan as it is located on a major arterial road and is adjacent to existing frequent transit service i.e., the 505 Dundas streetcar route.
City OP
23It is Mr. Smith’s opinion that the Proposed Development conforms with the OP. He stated that the OPA includes amendments to the Site and Area Specific Policy 553 (“SASP 553”). The OPA is required in order to permit the proposed built form, which differs from specific design parameters specified in SASP 553, and in particular with respect to angular planes, stepbacks and setbacks.
24Mr. Smith indicated that the Subject Property is within the Avenues area where re-urbanization is anticipated and creating new housing and job opportunities are encouraged. The Subject Property is designated Mixed Use Areas and he opined that the intent of this designation is to combine a broad range of residential, office, retail and services, institutions, entertainment, recreation and cultural uses as well as parks and open spaces.
SITE AND AREA SPECIFIC POLICY 553
25Mr. Smith contends that the Proposed Development is generally consistent with the intended policy direction in SASP 553 in the sections related to built form (section 6), building design (section 7), public realm, parks, and open space (section 9), and sustainability (section 10). It is his opinion that while the Proposed Development is consistent with SASP 553, certain aspects do not comply resulting in the requirement of an OPA.
26Mr. Smith indicated that the OPA would permit the proposed built form, which differs from some of the specific design parameters specified in SASP 553 as expressed by Policies 6.6(a)(i), 6.6(a)(iii) and 6.6(a)(iv) of the SASP.
27Mr. Smith noted that through the planning and design process the Appellant made revisions to the Original Proposal to fully comply and/or reduce differences with SASP 553 wherever possible. For example, the building setback and the ground floor height were adjusted from the Original Proposal to meet the policy and the overall height of the building was reduced to limit the building’s massing impact on the street and neighbouring properties. Mr. Smith opined that the location of the Proposed Development on the corner of Dundas Street West and Howard Park Avenue provide an opportunity for greater height and massing to mark the corner in a manner that is compatible with the surrounding area. It was noted by Mr. Smith that City Staff are in support of the amendment request.
28It is Mr. Smith’s opinion that the Proposed Development is generally in keeping with the intent of SASP 553.
Zoning By-law No. 569-2013
29Mr. Smith opined that the current zoning permits the proposed use but would not permit the proposed density.
30Mr. Smith testified that the Subject Property is zoned CR 3.0 (Commercial Residential) with a maximum height of thirteen metres and a maximum density of 3.0 Floor Space Index (“FSI”) including a maximum commercial density of 1.0 FSI and a maximum residential density of 2.5 FSI. An amendment to By-law No. 569-2013 is required in order to introduce a site-specific exception to permit the Proposed Development on the Subject Property.
Participant Statement
31In advance of the hearing, a joint Participant statement was submitted to the Tribunal on behalf of all seven Participants. The Participant statement raised a number of concerns including access, parking, community benefits and built form.
32With respect to access, Mr. Smith testified that ownership, operation and ongoing maintenance of the private laneway will remain unchanged during and after construction of the Proposed Development. He noted that a Transportation Impact Study had been completed by the Appellant and was deemed acceptable by the City.
33Mr. Smith advised the Tribunal that the Proposed Development included 40 parking spaces for 130 residential units. Mr. Smith conceded that the number of parking spaces is limited, however it is in keeping with buildings in urban locations and with the newly adopted City by-law that does not mandate a minimum parking requirement for residential buildings. He reminded the Tribunal that the Transportation Demand Management Plan condition directly responds to parking concerns.
34Mr. Smith testified that community benefits contributions continue to be discussed among the Parties. Similar to addressing the parking concerns, Mr. Smith noted that contributions would be secured through satisfaction of the conditions.
35With respect to built form and construction, Mr. Smith reiterated that setbacks and overall height had been addressed through the revisions to the Original Proposal. In addition, the conditions contemplate a Construction Management Plan that will address many of the concerns raised by the Participants.
Summary
36Mr. Smith opined that the Settlement Proposal is an appropriate use of the Subject Property and ensures appropriate built form relationships with the surrounding existing and planned context. It is his position that the Proposed Development meets the intent of the Dundas-Roncesvalles Urban Design Guidelines and the Mid-Rise Building Design Guidelines. It is his view that it represents an architecturally distinctive mid-rise building that responds to the triangular shape of the site, provides for a flatiron-shaped building that addresses both street frontages and anchors the intersection.
37Mr. Smith recommended that the Tribunal approve the OPA and ZBA subject to the conditions, which he opined were appropriate.
ANALYSIS AND DISPOSITION
38Based on the uncontested opinion evidence provided by Mr. Smith, the Tribunal finds that the proposed OPA and ZBA are consistent with the PPS and conform with the Growth Plan and are appropriate to implement Municipal and Provincial policy directions.
39The Tribunal has had regard for applicable policies and guidelines and matters of provincial interest in s. 2 of the Act. In addition, the Tribunal considered the information and materials that the City received in relation to the matter. The Tribunal finds that the proposed OPA and ZBA constitute good land use planning.
40In determining the matter, the Tribunal accepts and adopts the uncontested land use planning and urban design evidence and expert opinions provided by Mr. Smith. The Tribunal is persuaded by the evidence that the Proposed Development promotes intensification in an appropriate location given its proximity to transit services and arterial roadways. The revisions made to the Original Proposal are generally consistent with the policies of SASP 553 relating to built form.
41The Tribunal has considered the concerns raised by the Participants and finds that they have been/will be appropriately addressed through the revisions to the Original Proposal and through the satisfaction of the conditions.
ORDER
42The Tribunal orders that the appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 43 below, and the Official Plan Amendment and Zoning By-law Amendment set out in Schedules A and B to this Interim Order are hereby approved in principle.
43The Tribunal will withhold issuance of its Final Order contingent upon satisfactory fulfillment of the following pre-requisite matters.
The ZBA be finalized in a form and content acceptable to the City Solicitor, Chief Planner and Executive Director, City Planning.
The owner has addressed outstanding issues related to site servicing and has submitted reports and drawings to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services related to:
i. Functional Servicing and Stormwater Management Report.
ii. Hydrogeological and Geotechnical Report; and
iii. Any other related engineering reports and drawings
The owner has agreed that the design and implementation of municipal infrastructure will be at the owner’s sole cost and expense for any upgrades or improvements to City infrastructure identified in the approved Functional Servicing and Stormwater Management, Hydrogeological and/or Geotechnical Reports, with such improvements being secured to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.
The owner has agreed to prepare a Construction Management Plan to the satisfaction of the Chief Planner and Executive Director, City Planning to be secured as a condition of Site Plan Approval; and
The owner has agreed to submit documentation and financial contributions in the form of certified cheques (overall amount to be determined) for the implementation of a Transportation Demand Management (TDM) plan prior to the Site Plan Approval. These provisions include the following items:
i. One (1) bike-share membership per unit, offered for the first year of occupancy; and
ii. A minimum of one (1) bike repair stations provided on-site (together referred to as “Conditions”)
44The Panel will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-law Amendment and the issuance of the Final Order.
45If the Parties do not submit the final drafts of the Official Plan Amendment and Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 43 above have been satisfied, and do not request the issuance of the Final Order by Monday July 31, 2023, the Appellant 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 Amendment and Zoning By-law 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 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.
46The 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.
47The Panel may be spoken to should any issues arise with respect to the implementation of this Order.
“Gregory J. Ingram”
Gregory J. INGRAM
MEMBER
“C. Hardy”
C. HARDY
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.