Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2023

CASE NO(S).: OLT-22-002653 OLT-22-002104

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

Applicant/Appellant: Tesmar Holdings Inc.

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

Description: To permit the development of a 30-storey residential building in Phase 2

Reference Number: OP.21.020

Property Address: Part of Lot 15, Concession 4

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-002653

OLT Lead Case No: OLT-22-002653

OLT Case Name: Tesmar Holdings Inc. v. Vaughan (City)

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

Applicant/Appellant: Tesmar Holdings Inc.

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

Description: To permit the development of a 30-storey residential building in Phase 2

Reference Number: Z.21.041

Property Address: Part of Lot 15, Concession 4

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-002655

OLT Lead Case No: OLT-22-002653

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Tesmar Holdings Inc. and others

Subject: Zoning By-law

Description: New City-wide comprehensive zoning by-law

Reference Number: By-law 001-2021

Property Address: City Wide

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-002104

OLT Lead Case No: OLT-22-002104

OLT Case Name: D'Aversa v. Vaughan (City)

Heard: May 17, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Tesmar Holdings Inc.	Meaghan McDermid, Matthew Peretz (Student-at-Law)
City of Vaughan	Zaynab Al-waadh, Bruce Engell (in-absentia)
The Regional Municipality of York	Bola Ogunmefun
Magna International Inc.	Andrea Skinner
Canadian National Railway	Alan Heisey
Rutherford Land Development Corporation	Alexandra Whyte

DECISION BY STEVEN T. MASTORAS And p. tomilin and INTERIM ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This matter was originally scheduled before the Tribunal as a fourth Case Management Conference (“CMC”) because Tesmar Holdings Inc. (“Applicant/Appellant”) has filed two (2) appeals for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) pursuant to s. 22(7) and s. 34(11) respectively (the “Appeals”) of the Planning Act (“Act”) for failure to make a decision by the City of Vaughan (“City”).

2The subject property is located at the northeast corner of Jane Street and Riverock Gate, more particularly described as Part Lot 15, Concession 4 in the City of Vaughan (the “Tesmar Lands”). The Tesmar Lands were the subject of a multi-party settlement which resulted in the approval of an Official Plan Amendment, Zoning By-law Amendment and Site Plan by the LPAT on August 27, 2018. The Phase 2 development of the Tesmar Lands, which is located at the southwest quadrant of Caldari Road, and Abeja Street (the “Subject Lands”) are before the Tribunal at this hearing on a site-specific basis.

3The Tribunal was informed on May 15, 2023, that the Parties have reached a settlement agreement with the Applicant, subject to Holding provisions (“H”). Therefore, the CMC is converted to a hearing to consider the Settlement Proposal (“Settlement”).

CONSOLIDATION

4At the last CMC the Tribunal was advised by Counsel for the Applicant that consideration be given to the possible consolidation of these Appeals, with the site-specific appeal of the City’s Comprehensive Zoning By-law No. 001-2021 (Case No. OLT-22-002104) (“CZBL”). All Parties present for this hearing were informed of this additional consideration relating to the CZBL appeal, and there were no objections. Counsel also advised that notice of this was provided to all Parties to the CZBL appeals, and the Tribunal was informed that there were also no objections.

5The consolidation policy is to avoid a multiplicity of proceedings, avoid inconsistent decisions and to save expense. In balancing the interests of expediency and convenience with potential prejudice to others, the Tribunal finds that no prejudice is caused to any Party and finds that the site-specific Appeals will be consolidated with the CZBL, and the Settlement submissions proceeded.

LEGISLATIVE FRAMEWORK

6In deciding on the matters before it, the Tribunal must be satisfied that the proposed development is representative of good planning and in the public interest. The proposed planning instruments must be found to: have appropriate regard for the matters of Provincial interest in s. 2 of the Act; be consistent with the Provincial Policy Statement, 2020 (“PPS”); conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); conforms with the City of Vaughan Official Plan 2010 (“VOP”), the Vaughan Mills Centre Secondary Plan (“VMCSP”) and conforms with the York Region Official Plans of 2010 and 2022 (“YROP 2010” and “YROP 2022”).

EVIDENCE AND SUBMISSIONS

7Counsel for the Applicant requested the Tribunal’s concurrence that the appeals be allowed in part and approve the proposed OPA and ZBA, along with the amended CZBA as it relates to these Appeals with the appropriate conditions referenced in the Tribunal’s final decision.

8Ryan Mino-Leahan, a Registered Professional Planner was qualified by the Tribunal to provide land use planning opinion evidence, both through the comprehensive Affidavit and oral testimony relating to planning rationale in support of the Settlement. He opined that the proposed planning instruments tied to the development will permit and satisfy all requisite legislative tests and are representative of good planning in the public interest.

9Mr. Mino-Leahan testified that the matter before the Tribunal relates specifically to the Phase 2 elements of the development, and that the entirety of Phase 1 had been completed and is presently in built-form and fully occupied, combined with the completion of two roadway extensions.

The Phase 2 development proposal (“Phase 2 Development”) consists of a 30-storey residential building containing a maximum of 301 residential units and includes the elimination of the required non-residential uses on the Tesmar Lands.

OPA and ZBAs

10Mr. Mino-Leahan opined that the OPA maintains the High-Rise Mixed-Use land use designation and many of the existing site-specific policies, including those related to compatibility, while amending the site-specific policy to provide for the additional residential intensification contemplated for the last phase of development of the Tesmar Lands. The purpose of ZBA 1-88 is to implement site-specific amendments to the City’s Zoning By-law No. 1-88 to facilitate the “Phase 2 Development” as set out in the Settlement. Mr. Mino-Leahan stated there is no change in the proposed zoning category but rather amendments to existing standards to facilitate the proposed development.

11Furthermore, as background, Mr. Mino-Leahan testified that on October 20, 2021, City Council passed the new Comprehensive Zoning By-law No. 001-2021 (“ZBL 001-2021”), which applies to all lands within the City, including the Tesmar Lands. ZBL 001-2021 incorrectly re-zoned the Tesmar Lands “Service Commercial Zone SC-701” and did not incorporate the site-specific zoning as approved by the LPAT in the 2018 Approvals. Accordingly, Tesmar, along with others, appealed ZBL 001-2021 to the Tribunal.

12Accordingly, Mr. Mino-Leahan testified that two separate ZBAs (amending 1-88 and 001-2021) have been prepared and submitted to the Tribunal with the requisite Phase 2 H provisions, as part of the Settlement for its consideration and approval.

13Mr. Mino-Leahan expanded on this in his testimony, which included the fact that Phase 2 H conditions point to the need for some additional noise and vibration analysis, and a supplemental traffic mobility assessment along with the implementation of site plan conditions to the satisfaction of the Parties. He concluded that subject to these H provisions, there was sufficient land use planning rationale for the Tribunal’s approval of the Settlement.

Regard for Matters of Provincial Interest [Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

14Mr. Mino-Leahan noted that the Settlement had regard to all matters of Provincial interest pursuant to s. 2 of the Act including the following:

h) The orderly development of safe and healthy communities;

j) The adequate provision of a full range of housing, including affordable housing;

k) The adequate provision of employment opportunities;

p) The appropriate location of growth and development;

q) The promotion of development that is designed to be sustainable, to support public transit and be oriented to pedestrians;

r) The promotion of built form that

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe,

accessible, attractive and vibrant.

15Mr. Mino-Leahan also noted that pursuant to s. 3(5) of the Act, there is the requirement that the Tribunal 's decision:

1. shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

2. shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

16In summary, Mr. Mino-Leahan opined that the proposed OPA, and amendments to ZB 1-88 and ZB 001-2021 (collectively, the “Tesmar Planning Documents”) to facilitate the Phase 2 Development on the Subject Lands have regard for the above-noted requirements of the Act and matters of provincial interest.

Consistency with the PPS

17Mr. Mino-Leahan opined that the Settlement was consistent with the PPS, in that it is supportive of intensification that is planned and coordinated within built-up areas that have a compact form, mix of uses and densities that allow for the efficient use of land, infrastructure and public service facilities. Furthermore, the Settlement achieves efficient and resilient development and land use patterns, with a particular emphasis on policies 1.1.1 a), b), e), and 1.1.2. Mr. Mino-Leahan asserted that the development meets the intent of these PPS policies with respect to efficient use of land and infrastructure.

18Regarding the elimination of non-residential uses on the Subject Lands, Mr. Mino-Leahan made reference to the Altus study which indicates a greater level of intensification for residential uses are intended to support a range and mix of land uses in addition to office and retail within the broader community.

19Furthermore, regarding PPS policies 1.1.3.4 and 1.2.6.1, the Settlement is consistent with these guidelines, in that major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and ensures the long-term operational and economic viability of the development, and is therefore consistent with the PPS.

20The Tribunal agrees that the Settlement, the OPA and the ZBA are consistent with the PPS.

Conforms with the Growth Plan (“GP”)

21Mr. Mino-Leahan opined that the Settlement conforms to the GP, and shows particular regard to policies within s. 2.2.1.2, relating to development in designated “settlement areas, nodes, corridors, and other areas that have been identified by municipalities or the Province to be the focus for accommodating intensification and higher-density mixed uses in a more compact built form,” within a delineated built boundary with existing or new water and wastewater systems.

22Furthermore, he opined that the Settlement conforms to GP s. 2.2.1.4, which directs the achievement of complete communities that feature a diverse mix of land uses, including residential, employment uses and convenient access to local stores, services and public service facilities and expand access to a range of transportation options.

23Regarding policy 2.2.2.2 of the GP, the Settlement provides that the annual minimum intensification target contained in the applicable upper-tier official plan that is approved and in effect will continue to apply and is within the Primary Centre, consistent with the objectives of the VMCSP, meeting the City's intensification target, with appropriate heights and densities.

24For these and other reasons in the Affidavit, it is Mr. Mino-Leahan’s opinion that the Application conforms to the GP.

25The Tribunal finds that the Settlement, the OPA and ZBA conform to the GP.

Conforms with the YROP 2010 and the YROP 2022

26Mr. Mino-Leahan opined that the Settlement conforms with the YROP 2010, and although not required due to the timing of these Appeals, also conforms with the updated YROP 2022.

27Mr. Mino-Leahan opined that the Settlement conforms with Regional policies respecting intensification within the built boundary (Policy 5.3.1) and the balancing of residential and employment uses to improve the possibilities for working and living in close proximity (Policy 5.2.5). He testified that the development supports high-quality urban design and pedestrian friendly communities in keeping with the YROP 2010 (Policy 5.2.8 and Policy 5.2.10).

28Mr. Mino-Leahan also opined on the Regional Transit Priority Network in both the YROP 2010 and the YROP 2022, and specifically addressed the Future Major Transit Station Area (Future MTSA-77) in concert with the overall economic, environmental and community building decisions that will manage growth through a series of regional strategies, plans and guidelines to support and guide the Region.

29The Tribunal agrees with Mr. Mino-Leahan’s opinion, that the Tesmar Planning Documents conform with both the YROP 2010 and YROP 2022.

Conforms with the City of Vaughan Official Plan 2010 and the VMCSP

30Mr. Mino-Leahan opined that the Settlement, from a land use planning perspective, conforms and is consistent with the VMCSP with an emerging high-density mixed-use community with new developments being approved and constructed frequently. The Phase 2 Development supports the overall context of the VMCSP that requires a full range of uses including residential and non-residential uses that have the opportunity to be realized as this community transitions over time.

31Furthermore, the Phase 2 development will contribute to the residential growth projected for the Jane Street Corridor (869 units) within the VMCSP. The proposed development of the Subject Lands will contribute to the need for population and growth in the Jane Street Corridor, as identified in the VMCSP, which implements growth projections of the VOP 2010.

32Mr. Mino-Leahan concluded that the Settlement conforms and is consistent with both plans and therefore merits the Tribunal’s approval of the Settlement terms.

33The Tribunal accepts Mr. Mino-Leahan’s opinions and finds that the proposed development is compatible with the character of the neighbourhood and is satisfied that the Settlement and implementing of the OPA and the ZBA maintains the general intent and purpose of the VOP and VMCSP.

DISPOSITION

34Based on the uncontroverted testimony of Mr. Mino-Leahan, accompanied with his Affidavit and the agreement at the hearing by all the Parties, the Tribunal finds that the requisite tests have been met including having regard to matters of Provincial interest in s. 2 of the Act; consistency with the PPS; conformity to the GP; conformity with the VOP, the VMCSP, the YROP 2010 and YROP 2022.

35Therefore, the Tribunal concurs with the Settlement, and the appeals shall be allowed in accordance with the terms of the Settlement and the Order as follows:

ORDER

36THE TRIBUNAL ORDERS that the appeal of the OPA is allowed in part and is authorized as appended to this decision and as set out in Attachment A.

37THE TRIBUNAL FURTHER ORDERS that the amendment to Zoning By-law No. 1-88 is allowed in part and generally approved in the form appended to this decision and as set out in Attachment B.

38THE TRIBUNAL FURTHER ORDERS that the appeal to amendment Zoning By-law No. 001-2021 is allowed in part, and generally approved in the form appended to this decision as set out in Attachment C.

39THE TRIBUNAL FURTHER ORDERS that it shall withhold its final Order until such time that the Tribunal has received confirmation in writing from Tesmar Holdings Inc. with the consent of the Parties that:

1. A site plan has been prepared for the Phase 2 development of the Subject Lands to the satisfaction of the City of Vaughan, Region of York, Magna International Inc. and Canadian National Railway; and

2. The final form of the amendments to Zoning By-law No. 1-88 and the Comprehensive Zoning By-law No. 001-2021 are provided to the Tribunal in a form satisfactory to the Parties and the Tribunal.

40THE TRIBUNAL FURTHER ORDERS that the Appeals are consolidated and;

• The hearing previously scheduled to commence on August 8, 2023, for a total length of fourteen (14) days is hereby adjourned;
• The Parties are required to update the Tribunal as to the status of the matters on or before November 30, 2023, by reporting back to the Case Coordinator;
• If any difficulties arise in connection with the satisfaction of these conditions, the Tribunal may be spoken to.

“Steven T. Mastoras”

STEVEN T. MASTORAS MEMBER

“P. Tomilin”

P. TOMILIN 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.