Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 17, 2023

CASE NO(S).: OLT-22-002961

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

Applicant and Appellant: Rimap and Main Developments Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a 40-storey mixed-use building

Reference Number: 21 215777 WET 03 OZ

Property Address: 5238 Dundas Street West and 28 Jopling Avenue South

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002961

OLT Lead Case No.: OLT-22-002961

OLT Case Name: Rimap and Main Developments Inc. v. Toronto (City)

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

Applicant/Appellant: Rimap and Main Developments Inc.

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

Description: To permit a 40-storey mixed-use building

Reference Number: 21 215777 WET 03 OZ

Property Address: 5238 Dundas Street West and 28 Jopling Avenue South

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002962

OLT Lead Case No.: OLT-22-002961

Heard: April 24, 2023 by video hearing

APPEARANCES:

Parties

Counsel

City of Toronto

Cameron McKeich Sara Amini (in absentia)

Rimap and Main Developments Inc.

David Bronskill

DECISION DELIVERED BY W. DANIEL BEST AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1Rimap and Main Developments Inc. (“Rimap”) filed appeals pursuant to s. 22(7) and 34(11) of the Planning Act (“Act”) against the City of Toronto (“City”) for failure to make decisions within the statutory timeframes on applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) for the properties known as 5238 Dundas Street West and 28 Jopling Avenue South (“Subject Lands”).

2The application for the Subject Lands is for a 40-storey mixed-use building with 475 dwelling units and 380 square metres (“m²”) of retail space on the ground floor. The existing buildings will be demolished and a 340 m² public park is proposed to be located at 28 Jopling Avenue South.

3The Subject Lands includes two land parcels at 5238 Dundas Street West and 28 Jopling Avenue South separated by a city-owned strip of land. 5238 Dundas Street West is 2,417 m² and is bounded by three streets with a frontage of 35 metres (“m”) along Dundas Street West to the southeast, 40 m along Jopling Avenue South to the northeast, and 40 m along Aukland Road to the southwest. Currently, there is an existing one (1)-storey commercial building with surface parking spaces operating as a restaurant. 28 Jopling Street South has a one (1)-storey detached house with a 12 m frontage onto Jopling Street South.

4The Subject Lands are located approximately 180 m southeast of Bloor Street and 295 m southwest of Kipling Avenue. The subject site is kitty corner with the Kipling Transit Hub which includes the Kipling Subway Station located on the Bloor-Danforth Subway Line. The subway entrance is approximately 200 m from the subject site. The Kipling Subway Station shares an underground tunnel to the Kipling Transit Hub which is a part of the GO Transit system which connects directly to the MiWay Transit System (Mississauga Transit). This transit hub across the street is an important gateway transit facility, providing this area with direct and rapid transit to the Downtown and many other parts of Toronto and beyond in all directions

5The Subject Lands are zoned "Etobicoke Centre 2" EC2 in the Etobicoke Zoning Code, as amended by By-law No. 1088-2002. The EC2 zone permits both residential and a range of non-residential uses. The maximum building height permitted is 24 m and the maximum floor space index permitted is 3.5 times the area of the lot. The Zoning By-law requires a minimum of 25% of the site area to be reserved for landscaped open space and a minimum of 1.5 m² per dwelling unit of indoor amenity space to be provided. The Zoning By-law also provides several performance standards including maximum podium height, minimum and maximum building setbacks, and maximum tower floor plate size. The subject site is not subject to city-wide Zoning By-law No. 569-2013.

6To the north of the Subject Lands the Etobicoke York Community Council recommended Council approval of the Zoning By-law Amendment application for a 27 and 33-storey mixed use building. Further north are 1-2 storey commercial buildings fronting onto Bloor Street West. To the east is Six Points Plaza with surface parking spaces. An Official Plan Amendment and Zoning By-law Amendment application has been submitted for this site proposing four mixed use development blocks with building heights between 10 and 45 storeys and a public street. Further east, a Zoning By-law Amendment application has been submitted for 4-8 Beamish Drive proposing a 32-storey residential building. To the south across Dundas Street West is a 40-storey mixed use rental building with commercial space on the ground floor. To the west across from Aukland Road are one (1)-storey commercial buildings fronting onto Dundas Street West. The hydro corridor is also located along the west side of Aukland Road. Further west is a residential neighbourhood with one (1) and two (2)-storey detached houses.

7The proposed OPA is an amendment to the Etobicoke Centre Secondary Plan (“Secondary Plan”) to provide for an alternative parkland dedication rate of 20% as required in the Secondary Plan to 12.4% (300 m²).

8The proposed ZBA is required as the Subject Lands are subject to Zoning By-law No. 1088-2002, which amended the former Township of Etobicoke Zoning Code. The subject site is zoned Etobicoke Centre 2 (EC2), a zone category that permits, among other things, apartment houses. The zone permits a maximum density of 3.5 times the area of the lot and a maximum height of 24.0 m. The subject site is not subject to City-wide By-law No. 569-2013. By-law No. 1088-2002 amended the Etobicoke Zoning Code to conform with the Etobicoke Centre Secondary Plan. Given that By-law No. 569-2013 regulations for CR zones are fully in force and effect, an amendment to By-law No. 569-2013 will be required to implement the redevelopment proposal.

9On March 4, 2023, the Tribunal was informed that all Parties had reached a proposed settlement for the appeal.

10On April 24, 2023 the Tribunal held a settlement hearing to address the proposed settlement.

ISSUES

11When adjudicating OPA and ZBA appeals, the Tribunal must determine whether the proposed amendments:

(a) are consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”)).

(b) conform with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”)).

(c) conforms with applicable official plans in this case the City of Toronto Official Plan (“TOP”); and

(d) represent good planning.

12In making a determination, the Tribunal must have regard to the matters of Provincial interest set out in s. 2 of the Planning Act and have regard to the information and materials that City Council received in relation to the matters under s. 2.1(2) of the Act.

EVIDENCE AND SUBMISSIONS

13The Tribunal marked the following Exhibits at the Hearing:

(a) Exhibit 1 - Affidavit of Michael S. Goldberg

(b) Exhibit 2 – Visual Evidence Booklet

14The Tribunal heard from one witness, Michael S. Goldberg, Planning Consultant for Rimap. Mr. Goldberg was affirmed and qualified to give expert opinion evidence in land use planning in this matter by the Tribunal. The City appeared in support of the settlement but did not provide evidence at the settlement hearing.

15Mr. Goldberg provided an overview of the revised development proposal that would redevelop the subject site by demolishing the existing buildings and constructing a 41-storey mixed-use building, with a four (4) and six (6)-storey podium element, and a 300 m² public park.

16The entrance to the residential lobby is located on the south side of the ground floor adjacent to Aukland Road. Adjacent to the residential lobby is proposed indoor amenity area (85.2 m²) which is adjacent to an outdoor amenity area (518.1 m²) towards the rear of the building and other open space areas. Immediately north of the indoor amenity area is a short-term bicycle parking room which has an exterior door for access, separate of the main lobby. Further north is the mail room. The north side of the ground floor includes a driveway from Jopling Avenue South, and a covered turn-a-round, which accesses both the underground parking and loading area.

17The proposed mixed-use building will have 380.2 m² of commercial space located on the ground floor fronting/facing the Dundas Street West sidewalk. Landscaping at grade level is provided along Dundas Street West, Jopling Avenue South, and Aukland Road. Additionally, further landscaping is proposed in the rear yard in the outdoor amenity area.

18Mr. Goldberg stated in his Affidavit that the facts and opinions expressed therein are, in part, supported by the work of other experts retained by the Applicant. The multi-disciplinary nature of this project meant that the following experts were retained to provide input and support for these applications:

a. Architecture, IBI Group;

b. Sun/Shadow Study, IBI Group;

c. Landscape Architecture, SVN Architects and Planners;

d. Transportation and Parking, Crozier and Associates;

e. Functional Servicing and Stormwater Management, Lithos Group Inc.;

f. Pedestrian Wind Study, Gradient Wind;

g. Geotechnical and Hydrogeological Report, EXP Services Inc.

Planning Act

19Mr. Goldberg gave opinion that the proposed development has regard for matters of provincial interest as set out in the s. 2 of the Planning Act:

(2) The Minister, the council of a municipality, a local board, a planning board, and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

the protection of ecological systems, including natural areas, features and functions.

the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems.

the adequate provision and distribution of educational, health, social, cultural, and recreational facilities.

the adequate provision of a full range of housing, including affordable housing.

the appropriate location of growth and development.

the promotion of built form that, is well-designed, encourages a sense of place, and

provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.

Provincial Policy Statement 2020 (“PPS”)

20Mr. Goldberg opines that the revised development proposal supports and advances the PPS policy direction to optimize the use of the land, resources, and the existing and planned infrastructure. He expands his position that the proposed 41-storey mixed-use building is appropriate and suitable for this site and its surrounding context. In view of the above, the redevelopment proposal is consistent with the PPS.

21The PPS provides a policy framework that promotes and encourages intensification in centres and in locations well served by municipal infrastructure, including rapid transit. Mr. Goldberg relied on the following PPS policies:

(a) Part IV, paragraph 5 relating to the Vision for Ontario's Land Use Planning System.

(b) Part V, Section 1.1.1 (a), (c), and (e) relating to healthy, livable, and integrated communities.

(c) Part V, Section 1.1.2, relating to appropriate range and mix of land uses within settlement areas.

(d) Part V, Section 1.1.3.2, relating to land use patterns within settlement areas.

(e) Part V, Section 1.1.3.3, relating to planning authorities identifying appropriate locations and promoting opportunities for intensification and redevelopment.

(f) Part V, Section 1.1.3.4, relating to appropriate development standards to facilitate intensification.

(g) Part V, Section 1.1.3.5 relating to planning authorities shall establish and implement minimum targets for intensification and redevelopment within built-up areas.

(h) Part V, Section 1.1.3.6, relating to efficient development of land adjacent to built-up areas.

(i) Part V, Section 1.4.1(a) relating to providing an appropriate range and mix of housing options and densities.

(j) Part V, Section 1.4.3, relating to planning authorities permitting and facilitating all forms of housing required to meet the social, health and well-being requirements of current and future residents, all forms of residential intensification, directing the development of new housing toward locations where appropriate levels of infrastructure and public service facilities are or will be available, 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;

(k) Part V, Section 1.6.6.2, relating to the optimization of existing infrastructure and facilities.

(l) Part V, Section 1.6.7.2, relating to efficient use should be made of existing and planned infrastructure, including by transportation demand management strategies.

(m) Part V, Section 1,6.7.4, relating to a land use pattern, density and mix of uses should be promoted that minimize the length and number of vehicle trips and support current and future use of transit.

(n) Part V, Section 1.7.1, relating to supporting economic prosperity.

(o) Part V, Section 1.8.1, relating to energy conservation and promotion of compact forms and transit and reduction of greenhouse gases and climate change adaptation; and

(p) Part V, Section 4.6, relating to implementation and interpretation.

Places to Grow: The Growth Plan for the Greater Golden Horseshoe

22Mr. Goldberg opines that the proposal implements the policies of the Growth Plan by:

a. Accommodating a compact, intensified, transit-supportive, pedestrian-oriented urban form. The proposed intensification is also supportive of alternative modes of active transportation such as walking and cycling.

b. Making more efficient use of, and optimizing the land base and infrastructure, in a location well served by high order public transit and within very close proximity to areas of employment, recreation, shops, and services.

c. Introducing a residential development on an underutilized site on lands within an Urban Growth Centre, contributing to a 'complete community'. The standards employed in this development are context related to achieve a compatible and fitting built form.

23The Growth Plan policies encourage intensification in appropriate locations. The site is in Etobicoke Centre, an Urban Growth Centre, where higher density developments comprise the existing and planned context. This location in the City of Toronto is also well served with public services for health, education, recreation, employment and entertainment uses and activities.

24The proposal contributes to the City achieving its minimum growth targets as set out in the Growth Plan.

City of Toronto Official Plan

25The Subject Lands are located within the Etobicoke Centre. Section 2.2(2) indicates that “Growth shall be directed to the Centres, Avenues, Employment Areas and the Downtown to meet objectives that include:

a. Achieve a minimum combined gross density target of 400 jobs and residents per hectare for each Centre which delineates the boundaries of the urban growth centres for the purposes of the Growth Plan.

b. Use municipal land, infrastructure and services efficiently.

c. Concentrate jobs and people in areas well served by surface transit and rapid transit stations.

d. Promote mixed use development to increase opportunities for living close to work and to encourage walking and cycling for local trips.

e. Facilitate social interaction, public safety and cultural and economic activity.

f. Protect neighbourhoods, green spaces and natural heritage features and functions from the effects of nearby development.

26Mr. Goldberg states the proposed development fulfills the main objectives for Centres, providing a higher density residential use development that will contribute to the housing stock of the Centre and support the significant public investment in the existing transit infrastructure. The redevelopment proposal provides a range of unit sizes and types to accommodate the growth planned for the Centre. The design will accommodate pedestrians and cyclists and will provide a high-quality public realm, including active uses on the frontage, all in accordance with the growth management policies.

27Mr. Goldberg states that the proposal conforms with Section 2.3.1 of the TOP which contains policies for Healthy Neighbourhoods that are to be read in conjunction with policies of Section 4 of the OP. The lands located to the southwest of the subject site, on the south side of the Toronto Hydro Corridor, are within the Neighbourhoods land use designation. The policies for that designation recognize that some physical change will occur over time and that new development in growth areas will respect the existing physical character and reinforce the stability of the areas where little growth is expected. Policy 2 of s. 2.3.1 states:

Developments in Mixed Use Areas, Regeneration Areas and Apartment Neighbourhoods that are adjacent or close to Neighbourhoods will:

a) Be compatible with those Neighbourhoods.

b) Provide a gradual transition of scale and density, as necessary to achieve the objectives of this Plan through the stepping down of buildings towards and setbacks from those Neighbourhoods.

c) Maintain adequate light and privacy for residents in those Neighbourhoods; and

d) Attenuate resulting traffic and parking impacts on adjacent neighbourhood streets so as not to significantly diminish the residential amenity of those Neighbourhoods.

28Mr. Goldberg states that the proposal conforms with Section 4.5 of the TOP which addresses the Mixed Use Areas policies and describes the function and character of Mixed Use Areas, as follows:

Mixed Use Areas achieve a multitude of planning objectives by combining a broad array of residential uses, offices, retail and services, institutions, entertainment, recreation and cultural activities, and parks and open spaces. Torontonians will be able to live, work, and shop in the same area, or even the same building, giving people an opportunity to depend less on their cars, and create districts along transit routes that are animated, attractive, and safe at all hours of the day and night.

29Mr. Goldberg opines that the proposal has an attractive and appropriate design that will enhance the pedestrian environment and compatibly fit in its existing and planned context, generally implementing the design criteria of this section of the TOP. The Built Form policies applicable to the proposal have been satisfactorily addressed and the proposed development is in conformity with the TOP policies for Built Form.

30Mr. Goldberg states the Subject Lands are part of a Centre and surrounded by the Mixed Use Areas designation, within which are tall high-rise rental and condominium buildings along Dundas Street West. Adding more housing units to this area will contribute to creating a more ‘complete community’ by providing more housing options for those individuals who live and work in the Etobicoke Centre and choose to live close to the transit hub/subway/Go Transit trains/surface transit. He opines that from a planning perspective, it is highly desirable to broaden the housing type and choice of housing in this neighbourhood, providing larger units for families, households with children, and multi-family households, and in having this community evolve as a more 'complete community'. As such, the proposed development conforms with the applicable housing policies in Section 3.2.1 of the TOP.

31Mr. Goldberg states that the Subject Lands are subject to the Etobicoke Centre Secondary Plan (“ECSP”), which contains strategic policies to achieve an urban focal point for the west district of the City of Toronto. Enhancing the concentration of employment and housing in Etobicoke Centre will better utilize the substantial public transit and other urban infrastructure that currently exists in this area and provides opportunities for residents to walk or use public transit to get to work or other destinations, thereby reducing auto dependency.

32Mr. Goldberg submits the proposed 41-storey building conforms with ECSP policies and is consistent with other existing, approved, and proposed tall buildings around the Kipling subway station and transit hub. Just south of the subject site, on the southeast corner of the same intersection, is a newly constructed 40-storey residential tower. To the north of the existing 40-storey building are a series of five (5) tall buildings with heights of 22-to-36-storeys. The lots on the northwest side of the 28 Jopling Avenue South portion of the subject site (8-26 Jopling Avenue South) are subject to a recent approval for 27-storey and 33-storey buildings. To the south of the subject site is a recent approval for a 50-storey building located at 5251 Dundas Street West, and to the east of the subject site is a recent proposal for a 52-storey building located at 4-10 Beamish Drive. The area proposals and approvals are within this range of heights supportive and compatible with the area and with the Kipling Subway Station and Transit Hub.

Conclusionary Opinion

33Mr. Goldberg summarized his evidence by stating that the OPA and ZBA constitute good land use planning in accordance with applicable Provincial and City policies and is in the greater public interest.

34The Parties are jointly requesting that the appeal be granted and that the Official Plan and Zoning By-law Amendment be approved, in principle. The Parties further recommends that the Tribunal withhold issuance of the Final Order regarding the OPA and ZBA appeal until such time as the Tribunal has been advised by the City Solicitor that the conditions set out in the City Council resolution have been satisfactorily addressed.

FINDINGS

35Based on the uncontested opinion evidence of Mr. Goldberg, The Tribunal finds that the proposed OPA and ZBA are consistent with the PPS, conforms with the Growth Plan and TOP. The Tribunal has had regard to the City’s applicable policies and guidelines and the matters of provincial interest in s. 2 of the Act as well as the information and materials that City Council received in relation to the matter. The Tribunal finds that the proposed OPA and ZBA constitute good planning.

INTERIM ORDER

THE TRIBUNAL ORDERS that the appeals are allowed in part and that the Official Plan and Zoning By-law Amendments are approved.

36The Tribunal will withhold issuance of the Final Order regarding the OPA and ZBA appeal contingent upon confirmation of the City Solicitor of the following pre-requisite matters:

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

b) the owner has submitted a revised Functional Servicing and Stormwater Management Report to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services, and such report shall determine the stormwater run-off, sanitary flow and water supply demand resulting from the proposed development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development and/or any upgrades that may be required;

c) the owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review, as they relate to the Official Plan and Zoning By-law Amendment application, to the satisfaction of the Supervisor, Tree Protection and Plan Review and the General Manager, Parks, Forestry and Recreation;

d) the owner has provided a revised Transportation Impact Study to the satisfaction of the General Manager, Transportation Services;

e) the owner has provided a revised Pedestrian Wind Study to the satisfaction of the Chief Planner and Executive Director, City Planning, with recommendations implemented as part of the amending Zoning By- laws to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;

f) the submitted Noise Feasibility Assessment has been peer reviewed by a qualified third-party consultant retained by the City of Toronto at the owner's expense, to the satisfaction of the Chief Planner and Executive Director, City Planning; and

g) the Electromagnetic Field Management Report has been reviewed and accepted by Toronto Public Health.

37In the event it is determined that upgrades are required to the infrastructure to support the development according to the accepted Functional Servicing and Stormwater Management Report and the Traffic Impact Study, a Holding Provision (“H”) be included in the final form of the site-specific Zoning By-law Amendment, not to be lifted until such time as the owner has made satisfactory arrangements, including entering into appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services.

38If the Parties do not submit the final drafts of the Official Plan Amendment and provide confirmation that all conditions to the issuance of the Final Order set out in paragraph 39 above have been satisfied, and do not request the issuance of the Final Order by Tuesday, October 31, 2023, the Parties shall provide a written status update 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, zoning by-law amendment and issuance of the Final Order by the Tribunal.

39The Member will remain seized subject to availability for the purposes of reviewing and approving the final draft of the official plan amendment, zoning by-law amendment and the issuance of the Final Order.

40The 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.

“W. Daniel Best”

W. DANIEL BEST

MEMBER

Ontario Land Tribunal

Website: www.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.