Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 09, 2023

CASE NO(S).: OLT-22-003956

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

Applicant and Appellant: Digram Developments Helen Inc.

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

Description: To permit the development of a 10-storey residential building

Reference Number: PLAN 19 137397

Property Address: 55, 63 and 83 Helen Avenue

Municipality/UT: Markham/York

OLT Case No.: OLT-22-003956

OLT Lead Case No.: OLT-22-003956

OLT Case Name: Digram Developments Helen Inc. v. Markham (City)

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

Applicant/Appellant: Digram Developments Helen Inc.

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

Description: To permit the development of a 10-storey residential building

Reference Number: SU/ZA 17 135415

Property Address: 55, 63 and 83 Helen Avenue

Municipality/UT: Markham/York

OLT Case No.: OLT-22-003957

OLT Lead Case No.: OLT-22-003956

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Digram Developments Helen Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the development of a 10-storey residential building

Reference Number: SU/ZA 17 135415

Property Address: 55, 63 and 83 Helen Avenue

Municipality/UT: Markham/York

OLT Case No.: OLT-22-003958

OLT Lead Case No.: OLT-22-003956

Heard: February 27, 2023 by Video Hearing

Parties	Counsel
Digram Developments Helen Inc.	Mark Flowers
City of Markham The Regional Municipality of York	Maggie Cheung-Madar Samantha Whalen

MEMORANDUM OF DECISION DELIVERED BY GREGORY J. INGRAM AND SIMRANJEET MANN ON FEBRUARY 27, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Settlement Hearing relates to an appeal brought pursuant to s. 22(7), s. 34(11) and s. 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), from the failure of the City of Markham (“City”) to make a decision within the statutory timeframes of the Act with respect to applications for an Official Plan Amendment, Zoning By-law Amendment and Plan of Subdivision. The appeal has been filed by Digram Developments Helen Inc. (“Appellant”) regarding lands located at 55, 63 and 83 Helen Avenue (“Subject Property”), in the City.

2The Owner owns four parcels of land known municipally as 55, 63, and 83 Helen Avenue and 7987 Kennedy Road. The Applications do not apply to the entirety of the lands owned by the Owner. The Applications apply to an area consisting of approximately 1.179 hectares (2.913 acres) on part of 55, 63 and 83 Helen Avenue, with approximately 112.07 metres of frontage on Helen Avenue and 23.39 metres on Greenberg Gate located approximately 180 metres east of Kennedy Road and 50 metres north of Highway 407 in the City of Markham, Regional Municipality of York (“Subject Lands”). Other lands within the Owner’s ownership are located to the south and west of the Subject Lands consisting of 0.549 hectares (1.35 acres) and are identified as “Other lands owned by Applicant not part of this application” on the Draft Plan of Subdivision (“DPS”)-(?). The Appellant intends to redevelop the Subject Property with a 10-storey-high residential building, an extension of Peshawar Avenue, and a park block.

3On October 27, 2022, the Tribunal held its first CMC (“1st CMC”), at which it consolidated the OPA, ZBA and Subdivision appeals and granted Party status to The Regional Municipality of York.

4On December 14, 2022, the Tribunal held the second CMC (“2nd CMC”), during which the Parties advised that they remained confident that a settlement would be reached and that some additional time would be required to work through one remaining issue and to allow the City of Markham Council (“Council”) meetings to take place. The Parties anticipated that they would be in position to file the required materials and present a settlement to the Tribunal for consideration at the end of February 2023.

5The Tribunal scheduled a third CMC (“3rd CMC”), with the direction that Parties be prepared either to present the terms of the settlement of the appeal, or, in the event a settlement had not been reached, have a final draft Procedural Order and Issues List ready for review and approval by the Tribunal.

6On February 13, 2023, the Tribunal was notified by the City of Markham that the Parties would like to proceed with a settlement Hearing on February 27th, 2023, and confirmed that representatives for Digram Developments Helen Inc. would provide the Tribunal with a Joint Affidavit of a proposed settlement.

DESCRIPTION OF THE SETTLEMENT PROPOSAL

7The proposed development is for the creation of one (1) block within the proposed Draft Plan of Subdivision (“proposed DPS”) for Residential High Rise consisting of 0.616 hectares that will accommodate approximately 295 apartment units with a maximum height of 10 storeys and a gross floor area of 3.3 times the lot area based on the Concept Site Plan submitted.

8It is proposed that the Concept Site Plan provide for an appropriate transition to a height of three storeys at the east side of Block 1 within the proposed DPS where the proposed building is set back approximately 10.6 metres (“m”) from the existing low-rise development. The proposed residential building is set close to Helen Avenue in order to promote active transportation and transit in the area and to support a strong urban design presence.

9The documentation also proposes that vehicular access for the residential development is from the proposed extension of Peshawar Avenue through the proposed DPS, which, in addition to facilitating the creation of the proposed development block, will complete the planned local street pattern which is currently terminated in a temporary turning circle east of the Subject Lands. The majority of parking is proposed to be located underground within two levels.

10Parties submitted a Joint Affidavit indicating that a Traffic Impact Study and Functional Traffic Design Study confirming that site access and sight lines are satisfactory and that improvements recommended will address network intersection operations within the planned horizon. The Parking Utilization Study confirms that the proposed parking supply which has informed the parking requirements of the proposed ZBA are appropriate to accommodate the anticipated parking demand.

11The proposed development will be serviced using full municipal services and will rely on existing community facilities in the surrounding area to the east. A Functional Servicing Report submitted confirms that the proposed development can be serviced with a combination of existing municipal services and upgrades to municipal services within the Helen Avenue right-of-way.

12In addition, the proposed development and extension of Peshawar Avenue allow the existing temporary turning circle on the existing Peshawar Avenue to be removed from the lands east of the Subject Lands, which will facilitate the use of existing City-owned land for a neighbourhood park and the opportunity to develop and expand the planned park including lands within Block 2 of the proposed DPS, and the opportunity to expand further to the south.

13The proposed settlement requests that the Tribunal provide the following:

a. a Decision and Order approving the proposed Official Plan Amendment in the form contained in the proposed Official Plan Amendment (“proposed OPA”). The proposed OPA is for an amendment to the Markham OP 2014, to add a new site-specific policy to Section 9.19 as Subsection 9.19.14 to designate the Subject Lands as High-Rise Residential to allow a maximum permitted building height of 10 storeys and a maximum floor space index (“FSI”) of 3.3, applying to the Subject Lands only;

b. a Decision and Order approving the Amending Zoning By-law. The proposed ZBA is to remove the lands from the designated area of By-law 304-87, as amended, to incorporate the lands into the designated area of By-law 177-96, as amended, and to rezone the lands from RR1 in By-law 304-87 to Residential Four724 (R4724) Zone in By-law 177-96. Several site-specific exceptions are proposed in order to facilitate the development of a 10-storey residential building with associated parking and vehicular circulation; and

c. a Decision and Order approving the proposed Draft Plan of Subdivision . The proposed DPS proposes to create one (1) block for Residential High Rise use, 1 block for public park use, 1 block for road widening and 1 proposed public road right-of-way.

ISSUES

14The issues that the Tribunal must address when adjudicating an OPA, ZBA and DPS settlement concern whether the proposed instruments:

a. are consistent with Policy Statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 [“PPS”]);

b. conform with applicable Provincial, regional and municipal plans (in this case, Growth Plan for the Greater Golden Horseshoe 2020(?), York Region Official Plan, Markham Official Plan);

c. conform with the nature and intent of applicable Zoning By-laws;

d. represent good planning.

15The 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 the City of Markham Council received in relation to the matters under s. 2.1(2) of the Planning Act.

EVIDENCE AND SUBMISSIONS

16The Appellant filed an Affidavit affirmed by Mark Yarranton and Alistair Shields dated February 21, 2023 in support of the proposed settlement. Mr. Yarranton and Mr. Shields are land use planners retained by the Appellant. Mr. Shields provided oral testimony at the settlement hearing. The Tribunal qualified him to provide opinion evidence in the area of land use planning.

17The witness noted that the Appellant prepared for and/or made representations at community and municipal committee meetings. In addition, the Appellant also met with City staff to refine the proposal, and as part of settlement discussions with the City participated in the finalization of the instruments now being put forward to the Tribunal through this settlement Affidavit.

18The Tribunal received and marked the following document as Exhibit 1:

• Joint Affidavit of Mark Yarranton, B.E.S., M.C.I.P, R.P.P., KLM Planning Partners Inc. and Alistair Shields, Planner at KLM Planning Partners Inc.

19In support of the Applications, the following supporting material was also submitted to the City and is available to the Tribunal:

• a description of the Development Proposal;

• applications for Draft Plan of Subdivision, Zoning By-law Amendment and Official Plan Amendment, and

• a draft Official Plan Amendment.

20The Region of York and the City of Markham support the Affidavit.

21Mr. Shields submitted that the application has appropriate regard for all relevant matters of the Provincial interest found in Section 2 of the Planning Act as per his specific examples below:

• The proposed DPS is not premature as it relies on existing available municipal services, transit and community facilities.

• The Subject Lands are suitable for purposes of roads, parks and residential use, as evidenced through the Environmental Site Assessment.

• The proposed DPS, subject to the approval of the proposed OPA, conforms to the Official Plan and adjacent plans with respect to the extension of existing roads and development of City-owned land for parks.

Provincial Policy Statement (PPS)

22Mr. Shields indicated that through their process they reviewed and considered the PPS, and submit that the proposed OPA, ZBA and DPS are consistent with the PPS. In particular, he submitted that the OPA, ZBA and DPS respects the efficient use of land and infrastructure and the provision of appropriate density and housing types that are compatible with surrounding land uses. He further noted that the plan is consistent with supporting transit use, as the development is within an emerging Major Transit Station Area. Mr. Shields further offered that the Subject Lands are located within the existing urban boundary of the City of Markham. Finally, he referred to the results of a Traffic Impact Study and Functional Traffic Design Study which confirmed adequate sight lines and stopping distances for the safe access of vehicles to the development.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020

23Mr. Shields submitted that, on behalf of the Appellant, he reviewed and considered the entire Growth Plan in forming planning opinion, and concluded that the proposed OPA, ZBA, DPS and proposed conditions (“Conditions”) conform to the objectives of the Growth Plan.

24In his testimony, Mr. Shields suggested that the guiding principles of the Growth Plan align with the proposed plan submitted by Digram Developments Helen Inc., in that the proposed development is within the delineated Built-up Area and within a strategic growth area as part of an emerging Major Transit Station Area identified within the YROP 2022. He noted that, should the development be permitted to proceed, the Subject Lands are serviced by existing water and wastewater systems.

25Mr. Shields opined that the proposed ZBA provides for appropriate performance standards to implement the proposed changes and would create a complete community through the provision of residential uses that contribute to a greater range and mix of housing options within an existing settlement area of a density and form that support all forms of safe transportation, including walking and cycling.

York Region Official Plan (YROP) 2022 and 2010

26The new York Region Official Plan 2022 (“YROP 2022”) was adopted by Regional Council on June 30, 2022 and approved with modifications by the Minister of Municipal Affairs and Housing on November 4, 2022.

27In speaking to the issue of the YROP, Mr. Shields confirmed that the Subject Lands are designated as Urban Area – Regional Structure and Community Area – Land Use Designations. He noted that Urban Areas and Community Areas are identified as primary locations for growth and development within York Region. Community Areas are intended to be where the majority of residents, personal services, retail, arts, culture, recreational facilities and human services needs will be located and shall contain a wide range and mix of housing types, sizes, tenures that include options that are affordable to residents at all stages of life.

28Mr. Shields submitted as evidence that the Subject lands are located within a Major Transit Station Area, which meets the priorities identified in the ROP 2022 and its predecessor ROP 2010.

29Further, Mr. Shields referred to Section 7.4.13 of ROP 2022, and noted that development applications which have not been deemed complete by the date of the Plan’s approval shall be subject to the policies of the Plan. He submitted that, given that the Applications were deemed complete on December 19, 2019, prior to the approval of ROP 2022, the intent is that the Applications are transitioned and not strictly subject to the policies of ROP 2022.

30In addition to his reference to the ROP 2022, Mr. Shields made reference to the ROP 2010 and submitted that the Proposals align with its principles as well. Specifically, he suggested that the Proposal promotes intensification in strategic locations in the Built-up Area to maximize efficiencies in infrastructure delivery, human services provision and transit ridership, which are priorities in the ROP 2010.

City of Markham Official Plan, 2014

31Mr. Shields referred to Section 8.2.1.3 of the Markham OP 2014, which states:

In considering an application for development approval on lands designated ‘Residential’, Council shall ensure that development has adequate transportation and water and wastewater infrastructure, and adequate community infrastructure such as public schools and parks and open spaces, and has regard for the Urban Design and Sustainable Development policies outlined in Chapter 6 of this Plan.

32He confirmed in his testimony that the proposed development will be serviced by existing transportation and municipal services. A park block is included as part of the proposed development and a number of existing public parks are located in close proximity to the Subject Lands. He also emphasized that the Subject Lands are adequately serviced by other community infrastructure such as open space, schools and public transit. It was his opinion that the proposed development is in conformity with the Urban Design and Sustainable Development policies.

33Mr. Shields also referred to Section 8.2.5.1 of the Markham OP 2014 with respect to building design, residential intensification, opportunities for infilling, responsiveness to transportation infrastructure, and, which states that the policy of Council is that new buildings “provide a transition in height and massing to adjacent ‘Residential Low Rise’ and ‘Residential Mid Rise’ areas”. It was his opinion that the proposed development strongly meets the expectations of the Markham OP 2014 and through the proposed ZBA will regulate the height and massing of the proposed development by virtue of other provisions, including minimum yards and maximum heights at set distances from the existing residential uses to the proposed use.

City of Markham Zoning By-law 304-87

34It was noted by Mr. Shields that the Subject Lands are zoned Rural Residential (RR1) within Zoning By-law 304-87, and the proposed uses are not permitted. As a result, an amendment to By-law 304-87 is required to implement and regulate the proposed development on the Subject Lands.

35Mr. Shields explained that the purpose and effect of the proposed ZBA is to remove the lands from the designated area of By-law 304-87, as amended, to incorporate the lands into the designated area of By-law 177-96, as amended, and to rezone the lands from RR1 in By-law 304-87 to Residential Four724 (R4724) Zone in By-law 177-96. Several site-specific exceptions are proposed in order to facilitate the development.

36Mr. Shields made the Tribunal aware of the various site-specific exceptions that would be included in the ZBA that are proposed through the Residential Four 724 (R4724) zone. The site-specific exceptions include permitted uses, setbacks, maximum heights, and architectural and mechanical features.

Summary Comments by Witness

37Mr. Shields closed by stating that the proposed OPA, proposed ZBA, proposed DPS and proposed Conditions satisfy the applicable provisions of the Planning Act, are consistent with the PPS, and conform with the Growth Plan, the ROPs (2010 and 2022) and the Markham OP 2014, as proposed to be amended by the proposed OPA.

38He also stated that the proposed development, as set out in the proposed OPA, proposed ZBA, proposed DPS and proposed Conditions, constitutes good planning and is in the public interest.

39Chair confirmed that no further evidence was going to be presented.

TRIBUNAL FINDINGS

40Based on Mr. Shields’ opinion evidence, the Tribunal finds that the proposed OPA, ZBA and DPS are consistent with the PPS and conform with the Growth Plan and the YROP and City of Markham Official Plan, and that the ZBA is appropriate to implement the municipal, regional and Provincial policy directions.

41The Tribunal has had regard to the applicable policies and guidelines and the matters of Provincial interest in s. 2 of the Planning 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.

ORDER

42THE TRIBUNAL ORDERS that the appeal is allowed, and:

1. the Official Plan for the City of Markham is amended as set out in Attachment 1 to this Order;

2. By-law 304-87 and By-law 177-96 of the City of Markham are hereby amended as set out in Attachment 2 to this Order and the Tribunal authorizes the Municipal Clerk of the City of Markham to assign a number to this By-law for record-keeping purposes;

3. the draft plan (Attachment 3 to this Order) is approved as shown on the plan prepared by KLM Planning Partners Inc. dated October 14, 2022, with a Surveyor’s Certificate from Schaeffer Dzaldov Bennett Ltd. dated November 11, 2020 and identified as Project No. P-2849 and DWG, and is approved subject to the fulfillment of the conditions set out in Attachment 4 to this Order;

4. that, pursuant to subsection 51(56.1) of the Planning Act, the City of Markham shall have the authority to clear the Conditions of draft plan Approval and to administer Final Approval of the Plan of Subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the Conditions of draft plan Approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

“Gregory J. Ingram”

GREGORY J. INGRAM MEMBER

“S. Mann”

S. MANN 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.

Attachment 1

Attachment 3