Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 5, 2023

CASE NO(S).: OLT-22-002403 (Formerly PL210192)

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

Applicant and Appellant: 36 Eglinton Duplex Inc.

Subject: Application to amend Site-Specific Zoning By-law No. 1117-2013 - Refusal of Application by the City of Toronto

Description: To permit the redevelopment of the subject property to consist of a 65-storey (220 metre) mixed-use building, comprised of a 5-storey base building and a 60-storey tower above, to contain a total of 663 dwelling units and 550 square metres of retail and office space

Reference Number: 21 101581 NNY 08 OZ

Property Address: 36-44 Eglinton Avenue West

Municipality: City of Toronto

OLT Case No.: OLT-22-002403

Legacy Case No.: PL210192

OLT Lead Case No.: OLT-22-002403

Legacy Lead Case No.: PL210192

OLT Case Name: 36 Eglinton Duplex Inc. v. Toronto (City)

Heard: December 7, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
36 Eglinton Duplex Inc. (“Applicant” / “Appellant”)	David Bronskill
City of Toronto (“City”)	Daniel Elmadany Sarah O’Connor (in absentia)
RioCan YEC Holdings Inc. (“RioCan”)	Justin McLarty
Toronto District School Board Toronto Lands Corporation.	No one appeared
Eglinton Park Residents Association (“EPRA”)	Thomas Cohen*

DECISION DELIVERED BY T.F. NG AND INTERIM ORDER OF THE TRIBUNAL

1This matter was scheduled for one day as a settlement hearing. The Applicant, 36 Eglinton Duplex Inc. made an application in July 2020 to the City of Toronto (“City”) for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act to permit a 65 storey residential mixed use development on properties municipally known as 36 – 44 Eglinton Avenue West (“subject property” / “subject site”). Although City Council refused the application in October 2020, the Applicant did not file an appeal.

2Instead, on January 12, 2021, the Applicant resubmitted a subsequent rezoning application to the City in terms consistent with the previous application. This application was refused by City Council on March 10, 2021 and the Applicant appealed.

3The Applicant then submitted an Official Plan Amendment (“OPA”) application on November 3, 2021 to amend the Chapter 7 Site and Area Specific Policies on the requirement for replacement of existing office gross floor area (“GFA”). City Council refused the application in February 2022, the Applicant appealed but has since withdrawn the OPA appeal.

4Thereafter, the Parties had engaged in Mediation and City Council had accepted the Applicant’s Settlement Offer (“proposed settlement” / “settlement proposal”) and directed the City Solicitor to attend at the hearing in support of the Revised Zoning By-law Amendment (“Revised ZBA”) application.

5All Parties in attendance in these proceedings were in agreement to and consent to the proposed settlement. The Affidavit of Alex Savanyu, the Applicant’s planner was marked as Exhibit 1.

6Mr. Bronskill, Counsel for the Applicant, briefed the Tribunal on the background of this matter and the proposed settlement with the City.

7Mr. Elmadany, on behalf of the City, confirmed the settlement proposal has been accepted by the City. Mr. Savanyu was qualified as an expert to give opinion evidence in land use planning matters. Mr. Savanyu testified in support of the proposed settlement evaluated against relevant public policy.

THE PROPOSAL

8The revised proposal (“Revised Proposal”) is attached as Exhibit D in Exhibit 1. The Revised Proposal is for a 59-storey mixed-use building (191.39 metres or 199.9 metres inclusive of the mechanical penthouse), reduced from the original height of 65 storeys (220 metres including mechanical penthouse). The Revised Proposal includes an aggregate GFA of 42,607 square metres, including 39,835.7 square metres of residential GFA, 2,677.6 square metres of office GFA and 94 square metres of retail GFA. The residential component of the proposal results in 614 dwelling units, of which 10.1% will have three bedrooms and approximately 31.1% will have two bedrooms. The Revised Proposal has a floor space index (“FSI”) of 30.5.

9Along Duplex Avenue, the ground floor will be set back 3.0 metres from the property line for the north portion of the building incrementally increasing to a maximum of 5.0 metres adjacent to the retail space in the south portion of the building, near the southwest corner. Similarly, along Eglinton Avenue West, the ground floor is set back 1.0 metre on the east portion adjacent to the office lobby, incrementally increasing to the west to a maximum of 5.0 metres at the corner (0.6 metres to 4.6 metres to the south lot line, post-road widening), creating an expanded public realm at the intersection with enhanced landscaping and seating. Vehicular access to the parking garage ramp and the loading space is consolidated at one access point on Duplex Avenue at the north lot line. The podium is generally built to the north and east property lines.

10The ground floor will consist of a residential lobby and an office lobby along Eglinton Avenue West and a double-height retail space at the corner of Eglinton Avenue West and Duplex Avenue, as well as vehicular access to the underground parking ramp and loading space from Duplex Avenue along the north property line, along with a mailroom and moving rooms.

SITE AND AREA CONTEXT

11The subject site is located at the northeast corner of Eglinton Avenue West and Duplex Avenue. It is located within less than a two-minute walk (approximately 110 metres) from the Yonge-Eglinton intersection.

12The subject site is approximately 1,398 square metres in size and generally square in shape, with frontages of approximately 40.05 metres along Eglinton Avenue West and 34.75 metres along Duplex Avenue. The subject site is generally flat along the front and rear lot lines, and slopes approximately 1.2 metre downward from north to south.

13The subject site is currently occupied by a 7-storey commercial building built in 1957, which includes a range of office, educational and retail uses. The building is generally built out to the lot lines along Eglinton Avenue West and Duplex Avenue, with a varied setback to the east lot line (0.0 metres to 1.2 metres) and a larger setback to the north (approximately 6.5 metres).

14Pedestrian entrances are provided along Eglinton Avenue West with a pedestrian entrance to the office lobby located at the midpoint of the frontage. The building is clad almost entirely in glass along the Eglinton Avenue West and Duplex Avenue frontages. The rear (north) façade of the building reveals the brick construction of the building and includes punched windows on floors 2 to 7.

15The vehicular entrance to the underground parking garage is located along Duplex Avenue near the north end of the subject site. The 6.5 metre setback area along the north property line is currently used for loading, servicing and parking. There are no trees within the immediate vicinity of the subject site.

16The subject site is located in the northwest quadrant of the Yonge-Eglinton Centre, within the city block bounded by Eglinton Avenue West to the south, Yonge Street to the east, Orchard View Boulevard to the north and Duplex Avenue to the west.

17The Yonge-Eglinton Centre is a vibrant mixed-use area focused on the Yonge-Eglinton intersection that includes the Eglinton subway station and the future Eglinton-Yonge station on the Eglinton-Crosstown light rail transit (“LRT”) line. The Yonge-Eglinton Centre is generally bounded by Mount Pleasant Road on the east, Soudan Avenue and Berwick Avenue on the south, Duplex Avenue and Yonge Street on the west, and by Orchard View Boulevard and Keewatin Avenue on the north.

18The subject site is located within the Yonge-Eglinton Crossroads Character Area as identified in the Yonge-Eglinton Secondary Plan which is focused on the intersection of Yonge Street and Eglinton Avenue. The area contains a mix of office, retail and residential uses, and includes the highest heights and intensity of existing buildings and newer development within the Yonge-Eglinton Secondary Plan area. Existing, proposed and under review Mixed Use Developments range in height from 12 storeys to 70 storeys.

19To the immediate north of the subject site is a 22-storey slab-style rental apartment building (411 Duplex Avenue), oriented in a north-south direction and extending to the north end of the block to Orchard View Boulevard.

20To the east of the subject site, encompassing the remainder of the block bounded by Duplex Avenue, Eglinton Avenue West, Yonge Street and Orchard View Boulevard, is the RioCan Yonge Eglinton Centre Complex. The development includes two office buildings of 30 storeys, with zoning approval for an additional 7 storeys (2300 Yonge Street), and 22 storeys, with zoning approval for an additional 5 storeys (20 Eglinton Avenue West). The fourth building in the Yonge Eglinton Centre Complex is a 17-storey rental apartment building (33 Orchard View Boulevard). Several floors of commercial space line the periphery of the buildings along Yonge Street and Eglinton Avenue West, along with an underground retail concourse and connection to the subway.

21Further east, within the northeast quadrant of Yonge Street and Eglinton Avenue, is a 58-storey mixed-use building (E Condos) at the corner (8 Eglinton Avenue East) and a 36-storey building at 15 Roehampton Avenue, as well as a 46-storey building at 41 Roehampton Avenue, which is currently under construction. Within the southeast quadrant of Yonge Street and Eglinton Avenue are a number of existing and approved tall buildings including 1 Eglinton Avenue East (65 storeys, approved), 2221 Yonge Street (58 storeys, built), 2191 Yonge Street (54 storeys, built), 2181 Yonge Street (39 storeys, built) and 2161 Yonge Street, located at the northeast corner of Yonge Street and Soudan Avenue (35 storeys, approved).

22To the immediate south of the subject site, at the southeast corner of Eglinton Avenue and Duplex Avenue, is a construction staging site for the Eglinton-Crosstown LRT line. Following completion of construction, the main entrance to the Eglinton LRT station will be built on the lands, just west of the existing subway station entrance. The lands are subject to a site-specific zoning by-law adopted in 2009 (By-law 236-2009), which permits a mixed- use development with a maximum height of 120 metres.

23Further south along Duplex Avenue is the Eglinton subway station bus terminal, a TTC service building and a 17-storey apartment building with integrated townhouse units along the Duplex frontage (60 Berwick Avenue). Further east is the Canada Square complex, which comprises virtually the remainder of the southwest quadrant of the Yonge-Eglinton Centre, bounded by Eglinton Avenue West, Yonge Street, Berwick Avenue and Duplex Avenue. Canada Square includes a 17-storey office building at the corner of Yonge Street and Eglinton Avenue (2200 Yonge Street), a 6-storey office building set further back from Yonge Street (2190 Yonge Street) and an 18-storey office building at the northwest corner of Yonge Street and Berwick Avenue (2180 Yonge Street), as well as a retail concourse and connections to the Eglinton subway station and the bus terminal.

24A redevelopment application for Canada Square is under review. The proposal is for five mixed-use towers at 45, 55, 60, 60 and 70 storeys, an open space program and transit infrastructure improvements.

25To the west of the subject site, at the northwest corner of Duplex Avenue and Eglinton Avenue West, at 50-90 Eglinton Avenue West, is currently developed with a two-storey former Toronto Hydro Eglinton Substation building (50 Eglinton Avenue West), as well as a 3-storey office building as an addition to the Eglinton Substation (60 Eglinton Avenue West) and a 6-storey office building with ground floor retail at the northeast corner of Eglinton Avenue and Henning Avenue (90 Eglinton Avenue West). The Hydro substation building at 50 Eglinton Avenue West is designated under Part IV of the Ontario Heritage Act. The combined site was rezoned to permit a two-tower development, with a 32-storey residential tower oriented north-south along the Duplex Avenue frontage and a 24-storey residential tower at the northeast corner of Eglinton Avenue and Henning Avenue. A revised application was recently approved with increased heights of 35- and 33-storeys.

26To the north of 50-90 Eglinton Avenue West, along the west side of Duplex Avenue, is a 4- storey building used as a Toronto Hydro transformer station (390-400 Duplex Avenue). Further north are low-rise detached and semi-detached dwellings fronting on Duplex Avenue and Orchard View Boulevard. To the west of Duplex Avenue is a low-rise residential enclave fronting on both sides of Henning Avenue, which dead ends south of Orchard View Boulevard.

27Further west, on the north side of Eglinton Avenue, west of Henning Avenue, are mid-rise office and residential buildings ranging in height from 4- to 8-storeys approaching Eglinton Park. Eglinton Park is an expansive City park which extends north from Eglinton Avenue West to Roselawn Avenue and consists of two baseball diamonds, Tommy Flynn Playground, a surface parking lot, North Toronto Memorial Arena, the North Toronto Memorial Community Centre and an underground parking garage.

28From a public transit perspective, the subject site has excellent access to existing and planned higher-order transit and surface transit services. The subject site is located within a one- to two-minute walking distance of the closest entrances to the existing Eglinton subway station and the Eglinton-Yonge station on the Eglinton Crosstown LRT, which is currently under construction. An entrance to the existing subway station is located approximately 90 metres from the subject site within the RioCan Yonge Eglinton Centre. The main entrance to the LRT interchange station will be located approximately 110 metres from the subject site on the south side of Eglinton Avenue.

29The Eglinton-Crosstown line is a 19-kilometre LRT that will run through the heart of Toronto. Running along Eglinton Avenue, the LRT will connect from Jane Street / Black Creek Drive in the west to the Kennedy subway station in the east. Approximately 10 kilometres of the line will be tunneled underground between Keele Street and Brentcliffe Road; beyond Brentcliffe Road, the LRT will continue east to the Kennedy subway station within an at-grade right-of-way separated from traffic.

PROVINCIAL POLICY STATEMENT 2020 (“PPS”)

30In Mr. Savanyu’s opinion, the Revised Proposal is consistent with the PPS, in particular, the policies relating to residential intensification, employment uses, and the efficient use of land and infrastructure.

31He stressed the following policy directions from the PPS as relevant:

a. Policy 1.1.1, which provides that healthy, liveable and safe communities are to be sustained by promoting efficient development and land use patterns; accommodating an appropriate affordable and market-based range and mix of residential types, employment, institutional, recreation, park and open space, and other uses to meet long-term needs; and promoting the integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit investments and standards to minimize land consumption and servicing costs.

b. Policy 1.1.3.3, which directs planning authorities to identify and promote opportunities for transit-supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment, where this can be accommodated taking into account existing building stock or areas and the availability of suitable existing or planned infrastructure and public service facilities.

c. Policy 1.3.1 which states that planning authorities shall promote economic development and competitiveness by, among other approaches, providing for an appropriate mix and range of employment, institutional and broader mixed uses to meet long-term needs. It also encourages compact, mixed-use development that incorporates compatible employment uses to support liveable and resilient communities.

d. Policy 1.4.3, which encourages the provision of an appropriate range and mix of housing options and densities by, among other things, promoting densities for new housing which efficiently use land, resources, infrastructure and public service facilities and support the use of active transportation and transit in areas where it exists or is to be developed and requiring transit-supportive development and prioritizing intensification in proximity to transit, including corridors and stations.

e. Policy 1.8.1, which directs planning authorities to support energy conservation and efficiency, improved air quality, reduced greenhouse gas emissions and preparing for the impacts of a changing climate through land use and development patterns which: promote compact form and a structure of nodes and corridors; promote the use of active transportation and transit in and between residential, employment and other areas; encourage transit-supportive development and intensification to improve the mix of employment and housing uses to shorten commute journeys and decrease transportation congestion.

f. Policy 4.6, which states that “the official plan is the most important vehicle for implementation of this Provincial Policy Statement”, it goes on to say that “the policies of this Provincial Policy Statement continue to apply after adoption and approval of an official plan”.

32The Tribunal agrees with Mr. Savanyu. The proposed development is centrally located at the identified subject site that will encourage a transit supportive and employment enhancing development. Just about 100 metres across from the subject property is the Eglinton subway station. The mixed use development comprising a varied mix and sizes of residential units and offices with retail space is an efficient use of the land and infrastructure. It prioritizes intensification in proximity to the subway and bus station area. The Tribunal finds that the proposal is consistent with the PPS.

GROWTH PLAN

33Mr. Savanyu opined that the Revised Proposal conforms with the Growth Plan for the Greater Golden Horseshoe 2019 as amended (“Growth Plan”), in particular, the policies that seek to promote economic development and increase employment densities, optimize the use of land and infrastructure and encourage growth and intensification in “strategic growth areas”, including “urban growth centres” and “major transit station areas”.

34The Guiding Principles which are important for the successful realization of the Growth Plan are set out in Section 1.2.1. The Key principles relevant to the Revised Proposal include:

a. supporting the achievement of complete communities that are designed to support healthy and active living and meet people’s needs for daily living throughout an entire lifetime;

b. prioritizing intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability;

c. providing flexibility to capitalize on new economic and employment opportunities as they emerge;

d. supporting a range and mix of housing options, including second units and affordable housing, to serve all sizes, incomes and ages of households; and

e. improving the integration of land use planning with planning and investment in infrastructure and public service facilities.

35The site is located within the Yonge-Eglinton Centre Urban Growth Centre (identified on Schedule 4 of the Growth Plan) and is within a “major transit station area” as defined by the Growth Plan. In this regard, the definition of a “major transit station area” is “the area including and around any existing or planned higher order transit station within a settlement area. Major transit station areas generally are defined as the area within an approximate 500 to 800 metre radius of a transit station, representing about a 10-minute walk.” In turn, “higher order transit” is defined as “transit that generally operates in partially or completely dedicated rights-of-way, outside of mixed traffic, and therefore can achieve levels of speed and reliability greater than mixed-traffic transit. Higher order transit can include heavy rail (such as subways and inter-city rail), light rail, and buses in dedicated rights-of-way”.

36The subject site is located within 90 to 110 metres of the Yonge-Eglinton subway/LRT interchange station and, accordingly, would fall within the definition of a “major transit station area”.

37The subject site is also located within a major transit station area, being the Eglinton Protected Major Transit Station Area (“PMTSA”) as delineated by the City through Official Plan Amendment No. 570 and in Site and Area Specific Policy 723. The subject site is located within an area that is ascribed a minimum density of 3.0 FSI. The entire Eglinton PMTSA is planned for 600 persons and jobs per hectare. The minimum planned persons and jobs has been exceeded for the Eglinton PMTSA.

38The Tribunal finds that the proposed development is in a strategic growth area with existing higher order transit at the Yonge-Eglinton subway station Yonge line 1 and the planned Yonge-Eglinton crosstown LRT (s.2.2.1(2)(c)). The Revised Proposal is sited close to a transit and transportation corridor and will support the achievement of a complete community with the compact built form of the proposed building (s.2.2.1(3)(c)).

39The Tribunal finds that the proposed development is identified within a major transit station area (“MTSA”) and planning for growth and development is to be prioritized.

40Section 2.2.4(1), which requires that “priority transit corridors” shown on Schedule 5 will be identified in official plans and that planning will be prioritized for “major transit station areas” on “priority transit corridors”, including “zoning in a manner that implements the policies of this Plan”. In this regard, Schedule 5 identifies Line 1 Yonge-University-Spadina subway line as “existing higher order transit” and the Eglinton Crosstown LRT as a “priority transit corridor”.

41Section 2.2.4(3)(a) goes on to require that “major transit station areas” on subway lines be planned for a minimum density target of 200 residents and jobs combined per hectare. Policy 2.2.4(6) states that, within major transit station areas on priority transit corridors or on subway lines, land uses and built form that would adversely affect the achievement of the minimum density targets will be prohibited.

42The Tribunal is satisfied that the proposed development with the mixed range of residential units and some offices and retail fulfils the objectives of the policies of the Growth Plan including the ascribed density targets of residents and jobs per hectare.

43The proposed development supports the achievement of complete communities as the mixed use development incorporates a mix of residential unit sizes that cater for different household sizes and incomes (s.2.2.6(3)). The Tribunal finds that the Revised Proposal conforms to the Growth Plan.

City of Toronto Official Plan (“City OP” / “OP”)

44In Mr. Savanyu’s opinion, the Revised Proposal conforms with the OP and is permitted by the applicable Mixed Use Areas designation.

45As part of the proposed settlement, the Revised Proposal contemplates that the Official Plan Amendment regarding the requirement for office replacement in the Yonge-Eglinton Secondary Plan area will be withdrawn, as the Revised Proposal was revised to incorporate office uses that meet the requirement of the office replacement policies.

46The Land Use Plan (Map 17) designates the subject site as Mixed Use Areas. Lands surrounding the subject site are designated Mixed Use Areas, with the exception of lands designated Neighbourhoods on the west side of Duplex Avenue, approximately 26 metres northwest of the subject site. In this regard, the closest property within the Neighbourhoods designation is the Toronto Hydro substation at 390-400 Duplex Avenue, while the nearest residential properties are 21 Henning Avenue (61 metres to the west/northwest) and 410 Duplex Avenue (65 metres to the north).

47The Mixed Use Areas designation permits a broad range of commercial, residential and institutional uses in single use or mixed-use buildings, as well as parks and open spaces and utilities. The OP envisions that development in Mixed Use Areas will create a balance of high quality commercial, residential, institutional and open space uses that reduces automobile dependency and meets the needs of the local community and will provide for new jobs and homes for Toronto’s growing population on underutilized lands in the Centres and elsewhere.

48Mr. Savanyu explained that section 4.5(2) of the OP sets out a number of criteria for development within the Mixed Use Areas designation, including:

a. locating and massing new buildings to provide a transition between areas of different development intensity and scale as necessary to achieve the objectives of the Plan, through means such as providing appropriate setbacks and/or a stepping down of heights, particularly towards lower scale Neighbourhoods;

b. locating and massing new buildings so as to adequately limit shadow impacts on adjacent Neighbourhoods, particularly during the spring and fall equinoxes;

c. locating and massing new buildings to frame the edges of streets and parks with good proportion and maintaining sunlight and comfortable wind conditions for pedestrians on adjacent streets, parks and open spaces;

d. providing an attractive, comfortable and safe pedestrian environment;

e. providing good site access and circulation and an adequate supply of parking for residents and visitors; and

f. locating and screening service areas, ramps and garbage storage to minimize the impact on adjacent streets and residences; and providing indoor and outdoor recreation space for building residents.

49On Map 2, Urban Structure of the OP, the Yonge-Eglinton Centre is identified as a Centre. The subject site is located within the Yonge-Eglinton Centre.

50Yonge-Eglinton Centre is situated in Midtown Toronto (“Midtown”) with a more central location in Toronto’s transit network. The Centre is at the crossroads of the Yonge subway line and the Eglinton Crosstown light rapid transit line, both of which bisect the City. At this strategic location, the Centre serves as a major residential area, employment centre and an important institutional, retail and entertainment destination, highly accessible for a large segment of Toronto.

51Section 2.2.2(2) states that each Centre will have a Secondary Plan that will achieve a number of policy directions in Section 2.2.2(2) and s. 5.2.1 of the OP. In accordance with these policies, the Yonge-Eglinton Centre is subject to the Yonge-Eglinton Secondary Plan.

52The OP identifies this portion of Eglinton Avenue as a “Transit Corridor” and Yonge Street as a “TTC Subway and LRT Lines” on Map 4 – Higher Order Transit Corridors and Eglinton Avenue as “Transit Priority Segments” and Yonge Street as “TTC Subway and LRT” Lines on Map 5 – Surface Transit Priority Network.

53In Mr. Savanyu’s opinion, the Revised Proposal conforms with the public realm and built form policies in Sections 3.1.1-3.1.4 of the OP. In this regard, the public realm will be significantly improved upon, specifically, along Duplex Avenue, the ground floor will be set back 3.0 metres from the property line for the north portion of the building with the south portion near the corner of Eglinton incrementally increasing to a maximum of 5.0 metres adjacent to the retail space. Similarly, along Eglinton Avenue West, the ground floor is set back 1.0 metre on the east portion adjacent to the office lobby, incrementally increasing to the west to a maximum of 5.0 metres at the corner (0.6 metres to 4.6 metres to the lot line, post-road widening), creating an expanded public realm at the intersection with enhanced landscaping and seating.

54With respect to tower setbacks to the east, the residential units from Levels 7-29 in the tower will be set back 10.0 metres to 11.5 metres from the east property boundary, exceeding the as-of-right 8.0 metre setback in By-law No.1117-2013. To the east, the existing 20 Eglinton Avenue West RioCan office building is 22 storeys in height, with zoning approval for up to 27 storeys. The 20 Eglinton Avenue West building is set back approximately 3.0 metres from the shared property boundary with the subject site, resulting in a 13.0 metre to 14.5 metre separation distance between tower faces. Above Level 29, the remainder of the tower will be set back 8.5 metres to 10.0 metres from the east lot line, exceeding the as-of-right 8.0 metres in By-law No.1117-2013.

55Mr. Savanyu opined that separation distances between adjacent buildings are more critical in circumstances where the facing buildings are both residential buildings. Given that 20 Eglinton Avenue West is an office building, which is primarily occupied during weekday work hours, the potential for privacy and overview impacts between properties is minimized.

56The OP’s housing policies support a full range of housing in terms of form, tenure and affordability, across the City and within neighbourhoods, to meet the current and future needs of residents including a full range of housing which includes among other things, rental and affordable housing (section 3.2.1(1)). Section 3.2.1(2) provides that new housing supply will be encouraged through intensification and infill that is consistent with the OP.

57Section 5.3.2(1) of the City OP contemplated that City Council will adopt Guidelines that implement the OP. Further that while guidelines and plans express Council policy, they are not part of the OP unless the OP has been specifically amended to include them, and do not have the status of policies in the OP adopted under the Planning Act. In Mr. Savanyu’s opinion, the Revised Proposal achieves the intent of the applicable guidelines. Mr. Savanyu described how the proposal meets the Tall Building Design Guidelines (“Design Guidelines”); and the Growing Up: Planning for Children in New Vertical Communities (“Growing up Guidelines”) in the proposed building’s design, setbacks, stepbacks for the Design Guidelines; and the unit sizes and mix for the Growing up Guidelines.

Yonge-Eglinton Secondary Plan (“OPA 405” / “Secondary Plan”)

58In Mr. Savanyu’s opinion, the Secondary Plan implements the OP policies contained in Section 2, specifically with regards to targeting growth to growth areas that are well served by public transit and higher-order transit stations.

59On June 5, 2019, the Ministry of Municipal Affairs and Housing approved Official Plan Amendment No. 405 (“OPA 405”), with a number of significant modifications and brought it into full force and effect.

60On Map 21-1, the site is located within the Yonge-Eglinton Centre (Urban Growth Centre). Section 2.3.1 describes the Yonge-Eglinton Centre as a major centre of economic activity, with a concentration of existing and new office uses and other value-added employment sectors along Yonge Street and Eglinton Avenue, a civic and cultural hub, a focal area for retail and service uses, and a residential area, with a collection of residential and mixed-use neighbourhoods with varied characters and scales that support a diverse population.

61On Map 21-2, the subject site is located within the “Yonge-Eglinton Crossroads Core” Character Area. The Midtown Cores are vibrant mixed-use areas centred around Midtown’s transit stations. The Midtown Cores will continue to function as mixed-use nodes with intensity of development differing between the Midtown Cores. Specifically, the scale and form of intensification will be generally less near Davisville Station, Mount Pleasant Station and Bayview Focus Area than exists, and is planned, at the Yonge-Eglinton Crossroads. Edges of Midtown Cores will be designed to ensure connectivity and built form transition (s. 1.3.5).

62On Map 21-3, the subject site is identified within a Midtown Transit Station Area, specifically the Subway Station Area and Crosstown Station Area Core associated with the Eglinton Subway and Crosstown LRT Station Transit Node. Section 2.4.1 directs that transit station areas will be planned to accommodate higher density development to optimize return on investment and increase the efficiency and viability of existing and planned transit service levels. The following policies relate to development within Midtown Transit Station Areas:

a. section 2.4.1.2 – Within all Midtown Transit Station Areas, development will be supported, where appropriate, by planning for a diverse mix of uses to support existing and planned transit service levels; fostering collaboration between public and private sectors; providing alternative development standards; and prohibiting land uses and built form that would adversely affect the achievement of transit-supportive densities.

b. section 2.4.1.3 – The highest density of development shall be located in close proximity to existing or proposed higher order transit stations.

c. section 2.4.2 – Station Area Core zones, including the transit station(s), will include residential intensification, a concentration of office uses and collectively greater intensity than in the Secondary Zones.

d. section 2.4.4 – The Yonge-Eglinton Transit Station Area is to achieve or exceed a minimum density target of 600 residents and jobs per hectare.

63On Map 21-4, the subject site is identified within the Mixed Use Areas “A” land use designation. Section 2.5.3 states that Mixed Use Areas “A” are Midtown’s premier locations for intensification, including residential, major office and other employment uses. A broad mix of residential, retail and service, office, institutional, entertainment and cultural uses are desired and permitted. Single-use residential buildings, stand-alone retail stores and vehicle-related uses will not be permitted. Section 2.5.4 requires that tall buildings and large redevelopment sites capable of accommodating multiple buildings will provide 100 percent replacement of any existing office gross floor area located on the site, while section 2.5.5 permits all or a portion of the office space required by section 2.5.4 to be transferred to another site within the Secondary Plan area subject to certain criteria.

64Mr. Savanyu reiterated that the Revised Proposal incorporates 2,677.6 square metres of office GFA, which is generally consistent with the existing office space on the subject site and meets the intent of section 2.5.4.

65Mr. Savanyu opined that the Revised Proposal implements the above-noted policies through the provision of active at-grade retail uses along Eglinton Avenue West, an expanded public realm along both street frontages including generous setbacks at the corner of the intersection, coordinated and enhanced landscaping and locating loading and parking out of view from the public realm.

Built Form

66Mr. Savanyu expressed that section 5 of the Secondary Plan sets out the built form principles applicable to growth and intensification within the Midtown.

67Section 5.1.1 states that growth and intensification will be accommodated in a variety of building types and scales suitable and appropriate to the existing and planned context of the character areas that comprise Midtown, while enhancing the liveability of a building’s surroundings and the spaces within the building. Mr. Savanyu noted that the following built form principles are relevant to:

a. provide a variety of building types with a range of heights to fit with the planned character, promote localized sense of place and create a distinct skyline that reinforces Midtown’s location in the City’s urban structure;

b. allow for compatible low-rise development in Neighbourhoods and provide transition from Mixed Use Areas and Apartment Neighbourhoods through a variety of context-appropriate approaches that adequately limit shadow and privacy impacts, such as transitioning building heights, inclusive of base buildings, placing buildings in landscaped settings with building setbacks, or a combination thereof;

c. contribute to Midtown’s green, landscaped character by ensuring high-quality landscaping at grade, providing appropriate spacing and separation between tall buildings where these are permitted, and ensuring mid-rise buildings and the base of tall buildings have a scale that is compatible with the existing and planned character of the area;

d. ensure liveable and comfortable spaces that also contribute to a resilient future by locating, designing and massing buildings to mitigate the cumulative impact of multiple tall buildings, ensuring adequate access to sky view from the public realm, allowing adequate sunlight to penetrate to the street, and ensuring good wind conditions in all seasons;

e. provide adequate access to sunlight along the Midtown Villages, Park Street Loop, Eglinton Green Line, major pedestrian routes and parks and open spaces to create great places for people to walk, shop, relax and play; and

f. complement the scale, character, form and setting of heritage resources and heritage conservation districts through sensitive massing and placement of new buildings to lend prominence to these resources.

68Mr. Savanyu explained that section 5.3.1 states development will consist of a variety of building types contributing to a compact, transit-supportive built form; a diversity of building types and housing forms; the skyline of Midtown; the desired character of particular areas; and a comfortable public realm.

69Section 5.3.4 provides that setbacks will be compatible with the building line of other adjacent properties and on both sides of the street. Following therefrom, section 5.3.5 states that development fronting Eglinton Avenue in the Yonge-Eglinton Crossroads Character Area will create a consistent and continuous streetwall. Furthermore, s. 5.3.6 states that buildings will have vertical and horizontal articulation to be compatible with the rhythm and scale of the existing streetscape.

70Mr. Savanyu stated that section 5.3.35 provides that base buildings of tall buildings will generally step back along street frontages at certain heights to:

a. achieve compatibility with existing and/or planned character, such as maintaining or establishing cornice lines;

b. ensure a consistent and/or compatible streetwall within the Character Area and to adjacent Character Areas on the same street;

c. provide good proportion between buildings; and

d. provide adequate sunlight on sidewalks.

71With regard for section 5.3.45, it states that the minimum tower separation distance between residential tall buildings will be specified in implementing zoning by-laws in order to achieve good sky view and sunlight, as well as to contribute to the desired character of an area.

72Mr. Savanyu added that the application was revised to address shadow impacts on Eglinton Park and setbacks and stepbacks to mitigate wind impacts on the public realm along Duplex Avenue as reflected in the Revised Proposal. The materiality and design of the tower top and mechanical level will be distinct from the middle portion of the tower. This will be further defined and enhanced through the site plan approval process.

Sunlight and Comfort

73As for sunlight and comfort, Mr. Savanyu pointed to section 5.6.1 which provides that development will be located and designed to “maintain adequate access to sunlight” on Eglinton Park, the largest and most significant park in the area, and that all development proposals will be encouraged to minimize net new shadows on Eglinton Park. Section 5.6.3 defines “net new shadow” as shadow cast by a proposed development in excess of the shadow already cast by existing and approved buildings and structures as well as buildings and structures permitted as-of- right in the zoning by-law. Section 5.6.4 states that applicants will be required to demonstrate the shadow impacts of proposed developments on parks and open spaces as measured on March 21 and September 21 between 10:18 a.m. and 4:18 p.m.

74Further, section 5.6.5 states that the height ranges and other policy directions established in the Secondary Plan result in acceptable shadow impacts; however, attention to the massing and stepbacks of buildings may be required to ensure an adequate amount of sunlight on parks and open spaces.

75The Tribunal was informed that the application was revised to address shadows on Eglinton Park, and the proposal is to ensure the park maintains adequate access to sunlight as required by the Secondary Plan.

Housing

76Mr. Savanyu referred to section 7.1 that requires developments containing more than 80 new residential units to include a minimum of 15% two-bedroom units and 10% three-bedroom units, with an additional 15% being a combination of two-bedroom and three-bedroom units, or units that can be converted to two-bedroom and three-bedroom units through the use of “adaptable design measures”.

77The Revised Proposal, he said, includes 31.1% two-bedroom units and 10.1% three-bedroom units for a total of 41.2% two- and three-bedroom units, in accordance with section 7.1 in the Secondary Plan.

Official Plan Amendment No. 231 (“OPA 231”)

78OPA 231 was adopted by City Council on December 18, 2013. OPA 231 was appealed to the Ontario Municipal Board (“OMB”) by a number of parties. Subsequently, portions of OPA 231 have been approved by the OMB, although portions remain under appeal and are not in force. It should be noted that proposed section 3.5.1(9), as described below, remains under appeal and is not in force.

79Mr. Savanyu pointed out that OPA 231 contains new economic policies and new policies and designations for Employment Areas as part of the Official Plan and Municipal Comprehensive Reviews. In addition to policies applying to Employment Areas, OPA 231 proposes to introduce policies with respect to office replacement in “transit-rich” areas. The office replacement policies are not yet in force.

80Nevertheless, the proposed s. 3.5.1(9) would require that new development that includes residential units on a property with at least 1,000 square metres of existing non-residential gross floor area used for office space must increase the non-residential gross floor area used for office purposes, where the property is located in a Mixed Use Area or Regeneration Area within the Downtown and Central Waterfront or a Centre or within 500 metres of an existing or approved and funded subway, light rapid transit or GO train station.

81Since the existing non-residential gross floor area on the subject site used for office space is approximately 2,560 square metres, the Revised Proposal will incorporate 2,677.6 square metres of office GFA, in compliance with proposed s. 3.5.1(9).

Zoning

82The new City-wide Zoning By-law No. 569-2013 was enacted by Council on May 9, 2013. However, it was subject to numerous appeals to the OMB. The City-wide Zoning By-law has now been substantially approved by the Tribunal and is in force, except for those provisions that remain under appeal. The subject site is not currently included in By-law No. 569-2013. The in-force zoning by-law applying to the subject site is the former City of Toronto By-law No. 438-86, as amended by By-law No. 1117-2013.

83Mr. Savanyu explained that the Site-specific By-law No. 1117-2013 permits a mixed-use building and accessory uses, including an underground parking garage, subject to a number of site-specific provisions. In particular, the by-law permits a total maximum gross floor area of 25,500 square metres (18.24 FSI), including a maximum of 25,165 square metres of residential gross floor area (18.0 FSI) and a minimum of 338 square metres of non-residential gross floor area (0.24 FSI). The permitted maximum height is 122.55 metres to the top of the mechanical penthouse, subject to several permitted projections, including a 1.2 metre projection for rooftop mechanical elements.

84The specified building envelope and tower setbacks are shown on Map 2. Among other matters, they permit a 19.3 metre high base building along Duplex Avenue and the easterly portion of the Eglinton Avenue West frontage, with required setbacks of 3.0 metres to the tower along Duplex Avenue and 4.5 metres along Eglinton Avenue West. The minimum required tower setbacks from the north and east lot lines are 4.5 metres and 8 metres, respectively. Along the east wall of the building, windows of a dwelling unit, other than the window of a kitchen, den or bathroom, are only permitted to be located within the first 2.5 metres of a corner of the building.

85As set out in the settlement proposal, the subject site would be brought into By-law No. 569-2013 and an amendment prepared as an exception to City-wide Zoning By-law No. 569-2013. As the CR Zone in By-law No. 569-2013 is in force and effect, only one zoning amendment is required for this application to implement the Revised Proposal.

86Mr. Savanyu concluded that the Revised Proposal represents good planning and that the proposed ZBA is consistent with the PPS and conforms with the Growth Plan, and the City OP, including the Yonge-Eglinton Secondary Plan. He recommended approval of the requested ZBA with final order withheld pending fulfillment of agreed conditions.

87The Tribunal concurs that the Revised Proposal provides for an appropriate level of intensification, in accordance with the applicable provincial and municipal policies. In this regard, the subject site is located in a “strategic growth area”, within the Yonge-Eglinton urban growth centre, along a major arterial road with frequent transit service and in proximity to an existing and planned higher-order transit stations on the Yonge-University-Spadina line and Eglinton Crosstown LRT.

88Residential and employment intensification on the subject site is promoted by the applicable policy framework. The policy directions at both the provincial and City levels emphasize the efficient and optimal use of land and infrastructure and encourage the integration of land use planning and transportation planning. The Tribunal agrees and finds that, optimizing the use of land and infrastructure and creating new housing options and employment opportunities in areas such as this that are well-served by transit and other municipal infrastructure is in the public interest.

89From a built form perspective, the Tribunal agrees with Mr. Savanyu that the Revised Proposal is contextually appropriate built form addition to the Yonge-Eglinton Centre, in keeping with the built form policies of the OP and the Secondary Plan. The Revised Proposal will provide continuous and appropriately scaled streetwall heights (as generally contemplated in the Secondary Plan) with setbacks providing a comfortable public realm along Eglinton Avenue West and Duplex Avenue.

90The Tribunal finds that the proposed podium height and massing is contextually appropriate and improves the public realm with active uses at grade and greater setbacks at the corner of the Eglinton Avenue West and Duplex Avenue intersection, consistent with the public realm policies of the Secondary Plan, specifically the planned “Eglinton Green Line”. The proposed tower has been carefully designed to adequately limit shadow impacts on the surrounding parks and streets and on properties designated Neighbourhoods. The Revised Proposal conforms with the built form and massing policies of the OP and the Secondary Plan, and generally maintains the intent and purpose of the relevant Urban Design Guidelines.

91The Tribunal agrees that the proposed development recognizes that the public realm contributes to a liveable community. The improvements to the streetscape and amenity space contemplated will provide benefits to residents. The proposal supports an increase of a range of residential unit sizes at separate affordability levels.

92The Tribunal finds that the proposed development conforms to the City OP, the Secondary Plan and maintains the intent of relevant City guidelines. The proposal is in keeping with the optimized use of land, infrastructure and transit in the Mixed-Use Area designation. In this site location, the height, density and massing of the building is appropriate. The proposal’s design and built form will harmoniously fit the existing and planned context of the area.

CONCLUSION

93The Tribunal finds that the proposed development makes efficient use of land and infrastructure in keeping with policy objectives. The compact urban form optimizes extant infrastructure of higher order transit resources, aligns with City’s OP policies, and appropriately develops the subject property. The high quality 59 storey tower built form design is compatible with the existing mixed use and residential buildings around the Yonge Eglinton Centre area. The proposed development is appropriately located at the corner intersection of Eglinton Avenue West and Duplex Avenue and frames the streets in good proportion.

94The application relates to a proposal in a strategic growth area and a major transit station area where intensification is prioritized, that is, an area for residential and employment growth, in an urban built up area, where the compact urban form may be located. The proposed development takes advantage of the existing services infrastructure, optimizes land use, protects and enhances the streetscape as well as the neighbourhood character. The proposed development will increase the housing stock and residential supply in the City consistent with municipal and provincial objectives.

95The Tribunal accepts Mr. Savanyu’s opinion evidence and finds that the ZBA is substantially in accordance with the plans found in Exhibit 1 at Exhibit D. The application has regard to matters of provincial interest found in s. 2 of the Planning Act, is consistent with the PPS and conforms to the Growth Plan, the City OP and the Yonge Eglinton Secondary Plan. It maintains the intent of the Zoning By-law and applicable guidelines. The Tribunal finds that the proposal represents good land use planning and is in the public interest.

96Having considered the documents, the evidence and uncontested testimony, the Tribunal will allow the appeal in part and withhold final order subject to conditions.

INTERIM ORDER

97Accordingly, the Tribunal Orders that:

1. The appeal is allowed in part and the Zoning By-law Amendment is approved in principle, substantially in accordance with the plans and drawings referred to in Exhibit 1 at Exhibit D.

2. The Tribunal will withhold its Final Order until the Tribunal has been advised by the City Solicitor that the following conditions consistent with City Council Decision Item CC45.22 adopted on June 15 and 16, 2022 have been satisfied:

a. the owner has withdrawn its Official Plan Amendment;

b. the proposed Zoning By-law Amendment(s) are in a final form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor; and

c. the owner has, at its sole cost and expense:

i. submitted a revised Functional Servicing Report and Stormwater Management Report, Hydrogeological Review, including the Foundation Drainage Report (“Engineering Reports”) to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;

ii. secured the design and provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Engineering Reports, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

iii. submitted a revised Transportation Impact Study, including an updated Parking and Loading Study and transportation demand management strategy satisfactory to the General Manager, Transportation Services and thereafter implement any such requirements as part of a site plan control application; and

iv. submitted an updated Computational Fluid Dynamics pedestrian level wind study that reflects the revised proposal, including the identification of any required mitigation measures to be secured through the site plan process, all to the satisfaction of the Chief Planner and Executive Director, City Planning.

3. The Tribunal be furnished a copy of the final draft Zoning By-Law Amendment for review and approval for attachment to the Final Order.

98The member remains seized for reviewing and approving the Final Draft Zoning By-law Amendment and issuance of the Final Order.

“T.F. Ng”

T. F. NG

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.