Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 16, 2023 CASE NO(S).: OLT-21-001815

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

Applicant and Appellant: 4926 Bathurst Inc. Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment Existing Designation: Apartment Neighbourhoods Proposed Designated: Site Specific (To be determined) Purpose: To permit a 26-storey mixed use building Property Address/Description: 4926 Bathurst Street Municipality: City of Toronto Approval Authority File No.: No. 20 219407 NNY OZ OLT Case No.: OLT-21-001815 OLT Lead Case No.: OLT-21-001815 OLT Case Name: 4926 Bathurst Inc. 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: 4926 Bathurst Inc Subject: Application to amend City of Toronto By-law No. 569-2013, as amended, and the City of North York Zoning By-law7625, as amended - neglect of the City of Toronto to make a decision Existing Zoning: C1 General Commercial (C1) Proposed Zoning: Site Specific (To be determined) Purpose: To permit a 26 storey mixed use residential development Property Address/Description: 4926 Bathurst Street Municipality: City of Toronto Municipality File No.: No. 20 219407 NNY OZ OLT File No.: OLT-21-001816 OLT Lead Case No.: OLT-21-001815

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: 4926 Bathurst Inc Subject: Site Plan Property Address/Description: 4926 Bathurst Street Municipality: City of Toronto OLT File No.: OLT-22-002304 OLT Lead Case No.: OLT-21-001815

Heard: February 27, 2023 via video

APPEARANCES:

Parties	Counsel
4926 Bathurst Inc.	Adrian Frank/Jason Park
City of Toronto	Jessica Braun
4949 Bathurst LP	Mark Flowers

[Link to Order]

MEMORANDUM OF DECISION DELIVERED BY JATINDER BHULLAR ON FEBRUARY 27, 2023 AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal, was with respect to the appeals of the refusal of the City of Toronto (“City”) to make a decision regarding an Application to amend the Official Plan and to amend the City’s By-law No. 569- 2013, as amended, and the City of North York Zoning By-law No. 7625, as amended.

2The original development proposal submitted on November 17, 2020, proposes a 26-storey mixed-use building, with retail uses at grade and residential uses above, and with a height of 83.5 metres (“m”) (89.5 metres including mechanical penthouse) (the “Development Proposal”). It would contain a total of 263 units, of which three (1.1 percent) are studio units, 106 (40.3 percent) are one-bedroom units, 127 (48.3 percent) are two-bedroom units and 27 (10.3 percent) are three-bedroom units.

3A revised development proposal submitted on June 10, 2021, continued to propose a 26-storey mixed use building, with retail uses at grade.

4The parties having reached a settlement, requested a settlement hearing. This decision reports on this settlement hearing, the evidence received, the Tribunal’s findings and the Orders made by the Tribunal.

EVIDENCE

5Peter Smith was sworn and qualified by the Tribunal to provide opinion evidence in the area of land use planning. Mr. Smith also provided an Affidavit of his land use planning evidence sworn on February 22, 2023. This was reviewed by the Tribunal prior to the hearing and was duly noted as Exhibit 2 for the record.

6The Tribunal having reviewed Mr. Smith’s Affidavit prior to the hearing, directed Mr. Smith to provide summary of land use planning evidence focused on the statutory requisites. He was also directed to provide update on the changes that led the parties to reach a settlement versus the Appellant’s original plans.

7Mr. Smith described that the Subject Site is located at the intersection of Bathurst and Finch, two Major Arterial roads, within an existing low- and mid-rise apartment cluster with heights that range from four to 10 storeys. This localized apartment cluster forms part of a larger pattern of development to the west along Finch Avenue and to the north along Bathurst Street, which contain pockets of mid- and high-rise apartments interspersed with low-rise residential, commercial and institutional uses. The site has an area of approximately 2,483 square metres (“sq m”) site with frontages of approximately 55.4 m on Finch Avenue West and approximately 45.6 m along the west side of Bathurst Street (including corner rounding).

8Mr. Smith reviewed the original proposal and current plans in a tabulation format as below:

	Original Proposal (December 2020)	Current Plans (August 2022)
Site Area	2,483 m2	2,483 m2
Total Gross Floor Area: Residential: Retail:	21,205 m2 20,305 m2 900 m2	20,352 m2 19,452 m2 900 m2
Density	8.54 FSI (8.18 FSI residential, 0.36 FSI commercial)	8.20 FSI (7.84 FSI residential, 0.36 FSI commercial)
Total Units	263 units (100%) 3 studio units (1%) 106 one-bedroom (40%) 127 two-bedroom (48%) 27 three-bedroom (10%)	259 units (100%)* 3 studio units (1%) 104 one-bedroom (40%) 126 two-bedroom (48%) 26 three-bedroom (10%)
Overall Amenity Space Indoor Amenity Space Outdoor Amenity Space	1,056 m2 (4.02 m2/unit) 528 m2 (2.01 m2/unit) 528 m2 (2.01 m2/unit)	1,036 m2 518 m2 (2.0 m2/unit) 518 m2 (2.0 m2/unit)
Vehicular Parking Space Residential Parking Visitor Parking	197 (0.75 per unit) 158 (0.60 per unit) 39 (0.15 per unit)	130 (0.50 per unit) 104 (0.40 per unit) 26 (0.10 per unit)
Bicycle Parking Spaces Residential Long-Term Residential Short-Term	198 179 19	196 177 19
Loading Spaces	1 Type ‘G/B’	1 Type ‘G/B’

*Unit mix may vary based on marketing.

9Mr. Smith opined that the proposal is aligned with original design except for a reduction in GFA as well as reduced parking for vehicles in line with such being more in line with City’s directions.

10Mr. Smith opined that the Settlement Proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”). In particular, the policy directions respecting residential intensification and the efficient use of land and infrastructure. For the detailed evidence Mr. Smith referred to his sworn evidence in Exhibit 2.

11Mr. Smith opined that the Settlement Proposal conforms with the Growth Plan for the Greater Golden Horseshoe (2019), amended by Amendment No. 1 (the “Growth Plan”). He referred to policies on growth being focused on delineated built-up areas, strategic growth areas, locations with existing or planned transit (with a priority on higher order transit where it exists or is planned), and areas with existing or planned public service facilities. He also provided evidence on how the proposal contributes towards minimum intensification targets while help achieve complete communities.

12In review of the City’s Official Plan, Mr. Smith stated that the Subject Site is located along an Avenue on Finch Avenue West. He stated that the framework for new development on each Avenue is to be established by a new Zoning By-law and design guidelines, based on consultation with the local community, that will set out the mix of uses, heights, densities and other zoning standards. He added the Subject Site is also designated Apartment Neighbourhoods.

13Mr. Smith opined that the Settlement Proposal requires the redesignation of the Subject Site from Apartment Neighbourhoods to Mixed-Use Areas, consistent with the other three corners of the intersection. Mr. Smith concluded that the Mixed-Use Areas designation would allow the retail commercial uses on the ground floor at the proposed size of 900 sq m. Mr. Smith opined that the requested Official Plan Amendment is thus appropriate for the Subject Site in the context of City’s overall policies.

14Mr. Smith reviewed the applicable Zoning By-law(s) that apply to the Subject Site. He stated that the Subject Site is not included in the new City-wide Zoning By-law 569-2013. He stated that the Subject Site is currently subject to Zoning By-law 7625, as amended, of the former City of North York.

15Mr. Smith opined that the proposed Zoning By-law Amendment would add the Subject Site to By-law 569-2013 and rezone it to CR (Commercial-Residential) in accordance with the proposed Mixed Use Areas designation. The proposed zoning would also include a CR Exception zone, which would establish built form regulations in accordance with the Settlement Proposal. An amendment to By-law 7625 is not required because the CR provisions of By-law 569-2013 have now been approved by the Tribunal and are fully in force.

16Mr. Smith also reviewed the applicable policies in the “Tall Building Design Guidelines”, “Avenue and Mid-Rise Guidelines”, and “Growing Up Guidelines”. He opined the Settlement Proposal has due regard for all these guidelines.

17Mr. Smith in his concluding summary opined that, the Settlement Proposal, as reflected in the Current Plans, represents good planning and urban design and the proposed Official Plan Amendment and Zoning By-law Amendment are consistent with the Provincial Policy Statement and conform with the Growth Plan for the Greater Golden Horseshoe and the City of Toronto Official Plan.

FINDINGS

18Based on the uncontroverted and unopposed opinion evidence in the area of land use planning provided by Mr. Smith as well as all the material on file the Tribunal finds that the Official Plan Amendment and the Zoning By-law Amendment have due regard for the Provincial Interest, are consistent with the Provincial Policy Statement 2020, conform with the Growth Plan for the Greater Golden Horseshoe and represent good land use planning.

19The Tribunal additional finds that the Zoning By-law Amendment conforms with the City Official Plan as amended by the requested Official Plan Amendment.

20The Tribunal accepts as reasonable the conditions for finalization of the Official Plan Amendment presented jointly by the parties so that the planning instruments can be finalized and submitted to the Tribunal for final review and Order.

ORDER

21THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [22] below, and the Official Plan Amendment and the Zoning By-law Amendment set out in Attachment 1 and Attachment 2, respectively, to this Interim Order, are hereby approved in principle.

22The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor for the City of Toronto that the necessary conditions for final Order of the Tribunal have been met as per Attachment 3.

23If the Parties do not submit the final drafts of the Official Plan Amendment and the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in Attachment 3 have been satisfied, and do not request the issuance of the Final Order, by Monday, July 10, 2023, the Applicant 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 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.

24The Tribunal may, as necessary, arrange the further attendance of the to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre- requisites and the issuance of the Final Order.

25The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

“Jatinder Bhullar”

JATINDER BHULLAR 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 1

Draft Official Plan Amendment

Authority: Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order issued on [date] in Tribunal File OLT-21-001815

CITY OF TORONTO

BY-LAW No. XXX-2023(OLT)

To adopt Amendment No. XXX to the Official Plan for the City of Toronto with respect to lands municipally known in the year 2022 as 4926 Bathurst Street.

WHEREAS the Ontario Land Tribunal, pursuant to its Decision/Order on [date], deems it advisable to amend the City of Toronto Official Plan with respect to certain lands known municipally as 4926 Bathurst Street;

The Official Plan of the City of Toronto, as amended, is further amended by the Ontario Land Tribunal as follows:

1. The attached Amendment No. 645 to the Official Plan of the City of Toronto is hereby approved.

Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal issued on [date] in File OLT-21-001815.

City of Toronto By-law No. XXX-2023(OLT)

AMENDMENT NO. XXX TO THE OFFICIAL PLAN

LANDS MUNICIPALLY KNOWN IN THE YEAR 2022 AS 4926 BATHURST STREET

The following text and map constitute Amendment No. 645 to the City of Toronto Official Plan.

The Official Plan of the City of Toronto as amended as follows:

1. Map 16, Land Use Plan is hereby amended by redesignating the lands known as 4926 Bathurst Street from Apartment Neighbourhoods to Mixed Use Areas in accordance with Schedule A attached hereto.

City of Toronto By-law No. XXX-2023(OLT)

Attachment 2

Draft Zoning By-law Amendment

Authority: Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order issued on [date] in Tribunal File OLT-21-001815

CITY OF TORONTO

BY-LAW XXX-2023(OLT)

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2022 as 4926 Bathurst Street

Whereas the Ontario Land Tribunal, in its Decision issued on [date] and its Order issued on [date], in file OLT-21-001815, in hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P13, as amended, ordered the amendment of Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2022 as 4926 Bathurst Street;

The Ontario Land Tribunal, by Order, amends Zoning By-law 569-2013, as amended, as follows:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, Chapter 800 Definitions.

3. Zoning By-law 569-2013, as amended, is further amended by adding the lands subject to this By-law to the Zoning By-law Map in Section 990.10, and applying the following zone label to these lands: CR 2.0 (c2.0; r2.0) SS2 (x####) as shown on Diagram 2 attached to this By-law.

4. Zoning By-law 569-2013, as amended, is further amended by adding the lands subject to this By-law to the Policy Areas Overlay Map in Article 995.10.1 and applying the following Policy Area label to these lands: PA4, as shown on Diagram 3 attached to this By-law.

5. Zoning By-law 569-2013, as amended, is further amended by adding the lands to the Lot Coverage Overlay Map in Article 995.30.1 and applying the following lot coverage label to these lands: 30, as shown on Diagram 4 attached to this By-law.

6. Zoning By-law 569-2013, as amended, is further amended by adding the lands to the Height Overlay Map in Article 995.20.1 and applying the following height label to these lands: HT 9.2, ST 3 as shown on Diagram 5 attached to this By-law.

7. Zoning By-law 569-2013, as amended, is further amended by adding Article 900.11.10 Exception Number CR #### so that it reads:

(####) Exception CR ####

The lands, or a portion thereof as noted below, are subject to the following Site-Specific Provisions, Prevailing By-laws and Prevailing Sections:

Site Specific Provisions:

On 4926 Bathurst Street, as shown on Diagram 1 of By-Law [Clerks to supply By-law ##], a mixed-use building may be erected or constructed in compliance with Regulations (A) to (Q) below:

(A) Despite Regulations 40.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum of 192.15 metres and elevation of the highest point of the building or structure;

(B) Despite Regulation 40.10.40.10(1), (2) and (3), the permitted maximum height of a building or structure is the number following the HT symbol in metres and the ST symbol in storeys as shown on Diagram 6 of By-law [Clerks to supply By-law ##];

(C) Despite Regulations 40.5.40.10(3) to (8) and (B) above, the following equipment and structures may project beyond the permitted maximum height of a building:

(i) equipment used for the functional operation of the building including electrical, utility, mechanical and ventilation equipment, roof access, maintenance equipment storage, chimneys, roof assemblies and vents and building maintenance units and window washing equipment may project above the height limits to a maximum of 6.0 metres;

(ii) structures that enclose, screen or cover the equipment, structures and parts of a building listed in (i) above, inclusive of a mechanical penthouse, enclosed stairwells and elevator shafts may project above the height limits to a maximum of 6.0 metres;

(iii) planters, landscaping features, guard rails, and divider screens on a balcony and/or terrace may project above the height limits to a maximum of 1.8 metres;

(D) Regulation 40.10.30.40(1) with respect to permitted maximum lot coverage does not apply;

(E) Despite Regulation 40.10.40.1(1), residential use portions of the building, other than a dwelling unit, are permitted to be located on the same level as non-residential use portions of the building;

(F) Despite Regulation 40.10.40.40(1), the permitted maximum gross floor area is 20,500 square metres, of which:

(i) the permitted maximum gross floor area for residential uses is 19,600 square metres; and

(ii) the permitted minimum gross floor area for non-residential uses is 700 square metres;

(G) Despite Regulation 40.10.40.70(2), the required minimum building setbacks are as shown in metres on Diagram 6 of By-law [Clerks to supply By-law ##];

(H) despite Clause 40.10.40.60 and (G) above, the following elements may encroach into the required minimum building setbacks and separation distances as follows:

(i) balconies, to a maximum of 1.5 metres;

(ii) architectural features, such as a pilaster, decorative column, cornice, sill, belt course, or chimney breast, window projections, including bay windows and box windows and eaves to a maximum of 1 metre;

(iii) cladding added to the exterior surface of the main wall of a building, to a maximum of 0.5 metres;

(I) Despite 40.10.50.10(3), no soft landscaping is required along the lot line abutting the Residential Apartment Zone category;

(J) Despite Regulations 200.5.10.1(1) and (6), and Table 200.5.10.1, vehicle parking spaces must be provided on the lot in compliance with the following minimum rates:

(i) 0.40 parking spaces per dwelling unit for residents;

(ii) 0.10 parking spaces per dwelling unit for visitors, which may be used for non-residential uses;

(iii) No parking spaces are required for non-residential uses; and

(iv) Parking spaces may be provided on a non-exclusive basis and may be located in a public parking area;

(K) Despite Regulation 200.5.1.10(2), up to 5 percent of the parking spaces may have a minimum length of 5.3 metres;

(L) Despite Regulation 200.5.1.10(2), a maximum of 5 percent of the parking spaces may have a minimum width of 2.6 metres if they are obstructed on one or both sides;

(M) Regulation 200.15.1(4) with respect to the location of accessible parking spaces does not apply;

(N) Despite Regulation 230.5.1.10(9)(B), required “long-term” bicycle parking spaces for a dwelling unit may be located on the first storey of the building, the mezzanine level, the second storey of the building, and any level of the building below ground; and

(O) In addition to the locations listed in Regulations 230.5.1.10(9)(A)(i), (ii) and (iii), "long-term" bicycle parking space may be located on any level of the building within a secured room, in a stacked manner and/or in bicycle lockers.

Prevailing By-laws and Prevailing Sections: None Apply

8. Despite any severance, partition or division of the lands, the provisions of this By-law shall apply as if no severance, partition or division occurred.

9. Temporary use:

(A) None of the provisions of By-law 569-2013, as amended, apply to prevent the erection and use of a "Temporary Sales Office" on the lot for a period of not more than 3 years from the date this By-law comes into full force and effect, provided:

(i) A "Temporary Sales Office" shall mean a structure used exclusively for the purpose of marketing, sales and leasing of dwelling units, to be constructed on the lot;

Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order issued on [date] in Tribunal File OLT-21-001815.

Attachment 3

Conditions for Finalizing Official Plan Amendment and Zoning By-law Amendment

OLT-21-001815 – 4926 Bathurst Street, Toronto

Conditions for the Issuance of Tribunal Order for the OPA and Zoning By-law Amendment (as set out in the Affidavit of Peter Smith sworn February 22, 2023, at paragraph 62):

a) the final form and content of the draft Official Plan and Zoning By-law Amendments are determined to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

b) the Applicant has provided a revised Functional Servicing Report, Stormwater Management Report, Municipal Servicing and Grading Plan, and any other reports or documents deemed necessary in support of the development to the City for review and acceptance by and to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and

c) if necessary, the Applicant has entered into a financially secured agreement to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services for the construction of any improvements to the municipal infrastructure, at the owner's sole expense, should it be determined that upgrades are required to support the development as identified in the accepted Functional Servicing and Stormwater Management Reports or other reports accepted by the Chief Engineer and Executive Director, Engineering and Construction Services.