Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 12, 2023
CASE NO(S).: OLT-22-004090
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Markham Main Street RR Inc. c/o SmartCentres Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a six storey, 308 unit retirement residence
Reference Number: PLAN 20 136386
Property Address/Description: 134, 136, 140, 144, and 152 Main Street North and 12 Wilson Street
Municipality/UT: Markham/York
OLT Case No.: OLT-22-004090
OLT Lead Case No.: OLT-22-004090
OLT Case Name: Markham Main Street RR 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: Markham Main Street RR Inc. c/o SmartCentres Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a six storey, 308 unit retirement residence
Reference Number: PLAN 20 136386
Property Address/Description: 134, 136, 140, 144, and 152 Main Street North and 12 Wilson Street
Municipality/UT: Markham/York
OLT Case No.: OLT-22-004091
OLT Lead Case No.: OLT-22-004090
Heard: March 14, 2023 by Video Hearing (“VH”)
APPEARANCES:
Parties
Counsel
Markham Main Street RR Inc. c/o SmartCentres Inc. (“Applicant”/“Appellant”)
Jason Park
City of Markham (“City”)
Maggie Cheung-Madar
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON MARCH 14, 2023 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This is a Settlement Hearing concerning an appeal by the Applicant. The Applicant is seeking an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to facilitate development at 134, 136, 140, 144 and 152 Main Street (“Subject Site”). The appeal arises following a non-decision by the City within the prescribed time period.
2Evidence in support of the settlement was provided by Kate Cooper, who was duly qualified by the Tribunal to provide opinion evidence as an expert in land use planning. The following is an account of her evidence and opinion.
The Subject Site
3Ms. Cooper testified that the Subject Site is located in the central area of Markham Village, at the northwest corner of Main Street North and Wilson Street, in the City.
4The Subject Site comprises a land assembly made up of six properties. The Subject Site is generally rectangular in shape, with the exception of a small notch at its northwest corner. It has a frontage of approximately 77.3 metres along Main Street North, approximately 96.1 metres along Wilson Street and approximately 65.5 metres along Water Street, with a total site area of approximately 8,243 square metres (0.8243 hectares).
5The Subject Site is currently occupied by seven distinct main street-style buildings, ranging in height from one- to three-storeys. These are generally characterized by diverse and well-ornamented façades, a strong orientation to the street, and narrow building frontages. These include:
134 Main Street North: A two-storey ‘gothic revival style’ house form building constructed in the 1870s, with a one-storey addition constructed prior to 1970. The commercial portion of the building is vacant and the addition includes a rental dwelling unit.
136 Main Street North: A two-storey ‘Italianate style’ brick building constructed in 1881, with a one-storey addition constructed in the 1990s. The commercial portion of the building is currently vacant, and the building includes two rental dwelling units.
140 Main Street North: A one-storey ‘Ontario Cottage/regency style’ house form building constructed in 1852. The building is used for restaurant purposes (Azyun Restaurant). This building forms part of the Markham Village Lanes development, which is further described below.
144 Main Street North: A two-storey ‘Queen Anne revival style’ house form building constructed in 1888. This building is used for restaurant and entertainment purposes (Main’s Mansion Restaurant and Bar). This building is the centrepiece of the Markham Village Lanes development. This building and 140 Main Street North are setback slightly from Main Street North, accommodating outdoor street-related dining and seating.
152 Main Street North: A two-storey ‘vernacular style’ house form building constructed in the 1870s. This building is used for commercial purposes (Babypink Studio).
12 Wilson Street: A two-storey ‘gothic revival/vernacular style’ house form building constructed in the 1870s, with several alterations and additions thereafter. Unlike the balance of the buildings within the assembly which front onto Main Street North, this property is located at the northeast corner of Wilson Street and Water Street and fronts onto Wilson Street. This property has been integrated into the Markham Village Lanes development.
Markham Village Lanes: The properties at 140 and 144 Main Street North and 12 Wilson Street were intensified with a one- to three-storey ‘C’-shaped commercial development that wrapped around the historic 144 Main Street North building to the north, west and south, and connected with the east wall of 12 Wilson Street and the west wall of 140 Main Street North. The building includes a number of non-residential uses, including office space, retail units, and restaurants and features a pedestrian-only internal courtyard that is bound by the buildings and features seating and patio areas and a central clock tower structure.
6The balance of the Subject Site is occupied by a combination of surface parking areas, driveways and hard and soft landscaped areas. In terms of landscaping, a number of shrubs and mature trees are located on the landholding. Vehicular access is provided by way of curb cuts along Water Street and Main Street North, and a combination of curb cuts and rolled curbs along Wilson Street.
7With respect to topography, the Subject Site experiences a change in grade with elevations decreasing, moving away from Main Street North, toward the rear of the Subject Site. The change in elevation is particularly visible when viewed from Wilson Street.
8Ms. Cooper confirmed that the commercial uses on the Subject Site have not thrived in some time and vacancies have increased in recent years, particularly within the Markham Village Lanes building. At the time when the Applications were submitted in December 2020, approximately 70 percent of the commercial units were vacant.
The Original Proposal and Settlement Proposal
9Ms. Cooper testified that the original proposal contemplated a six-storey (excluding mechanical elements) seniors-oriented institutional building and provided for the in situ retention and restoration of various important heritage assets on the property. The building would have a height of six storeys when viewed from Main Street North and appear as seven-storeys from the western portion of the Wilson Street frontage and from Water Street due to the falling grade toward the west. The building was proposed to contain a total gross floor area of approximately 22,650 square metres, resulting in a density equivalent to 2.74 times the area of the Subject Site.
10The original proposal was to be located behind the existing heritage buildings along Main Street North (134, 136, 140, 144 and 152 Main Street North), which were proposed to be retained in situ, enhanced, and leased for commercial purposes as part of the development. The Markham Village Lanes development along with the rear additions to 134, 136 and 144 Main Street North and a portion of 12 Wilson Street were proposed to be removed to facilitate the development. Elements of the 12 Wilson Street façade were proposed to be retained and integrated into the building massing.
11The six-storey building was to be comprised of four interconnected double loaded corridors, which framed the edges of the Subject Site and produced a generally ‘J’-shaped floorplate, when viewed in the plan. The building massing would wrap around an open area in the centre of the Subject Site that featured a vehicular access driveway (off of Water Street), with access and egress ramp to the underground parking garage, surface parking areas, along with servicing, loading, and landscaped areas.
12A total of 308 seniors suites were proposed, comprised of 110 retirement independent living units, 131 independent supportive living units, 33 assisted living units and 34 memory care units.
13Ms. Cooper testified that, generally, the settlement proposal continues to be similar to the Original Proposal; however, most significantly, the proposed use of the building has been revised (no longer being proposed as a seniors-oriented institutional building) and the massing has been massaged to provide more step backs and articulation in order to respond to concerns from City Staff regarding the building’s interface with adjacent properties. A description of the settlement proposal, focusing primarily on key changes, was described by Ms. Cooper as follows.
14The settlement proposal comprises a six-storey (seven-level) residential/mixed-use building containing a total gross floor area of 24,068 square metres, providing for a density of 3.01 times the area of the Subject Site. The building continues to feature a height of six storeys when viewed from Main Street North, with an additional level (Level 0) becoming visible towards the rear of the site as a result of a decrease in grade towards the west.
15The settlement proposal continues to include a building comprised of four interconnected double loaded corridors, framing the edges of the site and creating a generally ‘J’-shaped floorplate, when viewed in the plan. The massing continues to wrap around an open courtyard in the centre of the site, which includes loading, landscaping and access and egress functions, with a driveway continuing to be provided off of Water Street, at the northwest corner of the Subject Site.
16The settlement proposal continues to provide for the retention of 134, 136, 140, 144 and 152 Main Street North in situ and will continue to enhance/restore and lease these addresses for commercial purposes as part of the development.
17The most significant revisions between the original proposal and settlement proposal relate to the following matters:
a. Revising the use of the building to a mixed use residential/commercial building;
b. Removing the radial pick-up/drop-off cul-de-sac between 144 and 152 Main Street North and introducing built-form in its place (discussed below);
c. Changing the massing of the Main Street wing of the building along the Main Street North frontage by:
i. Introducing a three- to four-storey building element between 144 and 152 Main Street North in place of the previously proposed pick-up/drop-off cul-de-sac. The massing element, which includes at-grade retail fronting Main Street North and residential units above, is setback 4.28 metres from the east property line with a three-storey street wall. The building steps back 8.99 metres above Level 3 (providing for a 13.3 metre setback at Level 4) and steps back an additional 13.3 metres above Level 4 (providing for a 26.6-metre setback at Levels 5 and 6);
ii. Increasing the building’s setback to the east property line at the north end of the Main Street North frontage (to the rear of 152 Main Street North);
iii. Introducing an approximate 10.4-metre step back above Level 4 of the Main Street North frontage (to the rear of 134 and 136 Main Street North) to accommodate an outdoor amenity terrace, providing for a 25.1-metre setback at Levels 5 and 6. Previously, Levels 1 to 6 were setback 15 metres from the east property line with no step backs);
iv. Introducing a minimum step back of 1.5 metres along the balance of the Main Street North frontage above Level 4, providing for a minimum 25.1-metre setback from the east property line at Levels 5 and 6;
v. Removing all projecting balconies facing Main Street North;
d. Changing the massing of the Wilson Street wing of the building along the Wilson Street frontage by:
i. Reducing the height of the western end of the Wilson Street wing of the building to five storeys (six storeys when viewed from Water Street and the western portion of Wilson Street). The Wilson Street wing was previously proposed to be six storeys in height (seven storeys when viewed from Water Street and the western portion of Wilson Street) all the way to Water Street;
ii. Demolishing and replicating the façade of 12 Wilson Street, and incorporating this into the building massing, as opposed to retaining the original façade in situ;
iii. Reducing the building’s setback to the south property line from 4.5 metres to 3.0 metres at Levels 0 and 1 (other than the reconstructed 12 Wilson Street façade which will generally be located in the same location as the original façade);
iv. Introducing a two-storey integrated townhouse unit at Levels 0 and 1, with fine grain cladding and fenestration patterns which emphasize a townhouse articulation and design;
v. Introducing a 1.5-metre step back above Level 1, providing for a setback of 4.5 metres at Levels 2 to 6;
vi. Limiting the depth of the projecting balconies at Levels 3 and 4 to 1.5 metres so that they do not project into the setback of Levels 0 to 1 below;
vii. Eliminating projecting balconies on Levels 5 and 6 and replacing them with inset balconies;
e. Changing the massing of the Water Street wing of the building along the Water Street frontage by:
i. Reducing the height of the Water Street wing of the building to five storeys (six storeys when viewed from Water Street). The Water Street wing was previously proposed to be six storeys in height (seven storeys when viewed from Water Street);
ii. Reducing the building’s setback from the west property line from 3 metres to 2.5 metres at Levels 0 to 4;
iii. Introducing a 2.5-metre step back at Level 5 (the sixth storey when viewed from Water Street), providing for a 5-metre setback at this level;
iv. Removing projecting balconies in favour of inset balconies at all levels;
f. Changing the massing of the north wing of the building by:
i. Decreasing the setback to the west property line from 4.3 metres to 4.1 metres;
ii. Simplifying the terracing structure to the west to include a 6.9-metre step back above Level 3, providing for an 11.0-metre setback at Levels 4 to 6. The Original Proposal included additional step backs above Levels 4, and 5, which have been eliminated;
iii. Eliminating north facing projecting balconies;
g. Removing all surface parking spaces within the internal open space and introducing additional soft landscaping;
h. Changing the location and configuration of the parking garage access/egress ramp and modifying the layout of the below grade parking garage;
i. Introducing a partial second level of below grade parking;
j. Modifying the parking rate to meet a ratio equivalent to 0.9 parking spaces per unit for residential dwelling units plus a minimum parking ratio of 0.1 spaces per unit and a maximum parking ratio of 0.15 spaces per unit for visitor parking spaces, which is permitted to be shared with commercial parking;
k. Changing the location of the loading space within the internal open space;
l. Removing the lay-by proposed along Wilson Street; and,
m. Making significant changes to the internal layout of the building to reflect the revised use.
Planning Policy Framework
Section 2 of the Planning Act
18Ms. Cooper opined that the proposed instruments appropriately has regard to matters of provincial interest identified in Section 2 of the Planning Act.
19Based on Ms. Cooper’s evidence, the Tribunal finds same.
Provincial Policy Statement (“PPS”)
20Regarding the PPS, Ms. Cooper confirmed that she has reviewed and considered the entire PPS, but focussed on the following particular policies: sections 1.1.1, 1.1.2, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.3.1, 1.4.3, 1.6.3, 1.6.7.4, 1.7.1, 1.8.1, 2.6.1, and 2.6.3.
21Upon considering these policies, Ms. Cooper opined that the proposed instruments are consistent with the PPS and the policies promoting intensification and the efficient use of land and infrastructure in particular.
22Based on Ms. Cooper’s evidence, the Tribunal finds same.
A Place To Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)
23Regarding the Growth Plan, Ms. Cooper confirmed that she has reviewed and considered the entire Growth Plan, but focussed on the following particular policies:
sections 2.2.1(2)(c), 2.2.1(3)(c), 2.2.1(4), 2.2.2(3), 2.2.4(3)(a), 2.2.6(1), 2.2.6(2), and 4.2.7(1).
24Upon considering these policies, Ms. Cooper opined that the proposed instruments conform with the Growth Plan and the policies encouraging growth and intensification generally throughout existing built-up areas and in “strategic growth areas” which exhibit characteristics of “major transit station areas” in particular.
25Based on Ms. Cooper’s evidence, the Tribunal finds same.
York Region Official Plan (“ROP”)
26Ms. Cooper testified that the Subject Site is located within the Urban Area on Map 1 (Regional Structure) of the ROP and is identified as being located in proximity to a GO Station on Map 11 (Transit Network).
27Ms. Cooper further confirmed that she has reviewed the applicable policies of the ROP, in force at the time of the applications (consolidated version April 2019), focussing on the policies related to healthy communities (Policies 3.1.1, 3.1.2, 3.1.3, 3.2.3, 3.4.8, and 3.4.9), policies related to housing (Policy 3.5.4), policies related to economic vitality (Policy 4.4.1), policies related to sustainable cities and sustainable communities (Policies 5.2.8, and 5.2.10), and policies related to intensification (Policy 5.3.1, 5.3.3, 5.3.6, 5.3.10, 5.5.1, and 5.5.3).
28Upon considering these policies, Ms. Cooper opined that the proposed instruments conform with the ROP and the above noted policies, in particular.
29Ms. Cooper noted that York Region Council adopted the “2022 Regional Official Plan” in June 2022 (approved by the Minister of Municipal Affairs and Housing, in November 2022). However, given that the 2022 ROP was not in force at the time, she determined that it should not form part of the determinative policy framework applicable to the Applications. Notwithstanding this, she testified that she reviewed the 2022 ROP and opined that the proposed instruments conform with it.
30Based on Ms. Cooper’s evidence, the Tribunal finds same regarding both versions of the ROP.
City Official Plan (“OP”)
31Ms. Cooper testified that the Subject Site is identified as being within a Mixed Use Neighbourhood Area on Map 1 (Markham Structure) of the OP, and is located within a Heritage Centre (Markham Village) as identified on Map 2 (Centres, Corridors and Transit Network). She added that Heritage Centres form part of Markham’s ‘centres and corridors’ intensification strategy, and the Subject Site is designated as Mixed-Use Heritage Main Street on Map 3 (Land Use). Ms. Cooper further testified that the Subject Site is also identified as being located within a Heritage Conservation District on Map 13 (Heritage Conservation Districts), and is subject to Site and Area Specific Policies for Markham Village, as identified on Figure 9.13.1 of the OP.
32Ms. Cooper further confirmed that she has reviewed the applicable policies of the OP, focussing on the policies related to Markham’s goal and objectives of building complete communities (Policies 2.2.2.1, 2.2.2.3, and 2.2.2.6), the policies related to Markham’s structure (Policies 2.3.2(e), and 2.3.2(f)), the policies related to Markham’s intensification strategy (Policies 2.4.1, 2.4.2, 2.4.3, 2.4.7, 2.4.10, and 2.4.11), the policies related to Heritage Centres (Policy 2.5.4.1), the policies related to housing (Policies 4.1.1.1, 4.1.1.2, 4.1.2.2, 4.1.2.4, and 4.1.3.2), the policies related to the protection and conservation of heritage resources (Policies 4.5.1.1, 4.5.2.1, 4.5.2.3, 4.5.3.1, 4.5.3.3, 4.5.3.4, 4.5.3.8, and 4.5.3.11), the policies related to urban design of the public realm and streets and blocks, streetscapes, built form and site development (Policies 6.1.2.2, 6.1.2.3, 6.1.2.5, 6.1.4.1, 6.1.4.2, 6.1.4.3, 6.1.8.1, 6.1.8.2, 6.1.8.3, 6.1.8.4, 6.1.8.5, 6.1.8.6, and 6.1.8.7), and sustainable development (Policies 6.2.2.2, and 6.2.3.1).
33In addition, Ms. Cooper confirmed that she has reviewed the policies related to land use, in particular the general policies for development within a Mixed Use designation and the specific policies for development within the Mixed Use Heritage Main Street designation (Policies 8.3.1.1, 8.3.1.2, 8.3.1.4, 8.3.7.1, 8.3.7.2, 8.3.7.3, 8.3.7.4, and 8.3.7.5), as well as policies contained within the Markham Village Site-Specific Policy Area contained in Section 9.13 of the Official Plan (Policies 9.13.2, 9.13.4.1, 9.13.4.3, 9.13.4.9, and 9.13.4.10).
34Upon considering these policies, Ms. Cooper opined that the proposed instruments conform with the OP and the above noted policies in particular, and specifically those policies that apply to lands within Heritage Centres and Mixed Use Neighbourhood Areas, and lands designated Mixed Use Heritage Main Street.
35Based on Ms. Cooper’s evidence, the Tribunal finds same.
36Given the above opined conformity, Ms. Cooper explained that the requested OPA is only being sought out of an abundance of caution.
Markham Village Heritage Conservation District Plan (“MVHCDP”)
37Ms. Cooper testified that the Subject Site is located within the MVHCDP, which is comprised of a number of components including design guidelines, building policies and building and site design guidelines, implementation processes and appendices. She opined that the proposed development has appropriate regard for the broad aims and strategic direction of the MVHCDP, noting that the details associated with implementing the plan’s guidance on the proposed development will be appropriately refined at the Site Plan Approval application stage in collaboration with City Staff.
38Based on Ms. Cooper’s evidence, the Tribunal finds same.
Zoning By-law No. 1229
39Ms. Cooper testified that the Subject Site is regulated by City Zoning By-law No. 1229, as amended, and is zoned C2 (Central Commercial). She stated that the existing by-law permits commercial uses such as retail stores, service shops, personal service shops, banks, professional offices, restaurants, theatres, bakeries, custom workshops, hotels, medical clinics, newspaper offices, private clubs, studios, taverns, undertaking establishments and associated accessory uses. Apartment house dwellings are also a permitted residential building type within the C2 Zone.
40Ms. Cooper testified that the settlement proposal will maintain the C2 (Central Commercial) zone category applying to the Subject Site. However, the requested ZBA is necessary to introduce a number of site-specific development standards in order to modify the permitted height and density, amend the permitted building envelopes, clarify the proposed uses, and modify other development standards to accommodate the settlement proposal.
Summary and Conclusion
41Summarily, Ms. Cooper opined that the proposed instruments address the relevant matters of provincial interest identified in Section 2 of the Planning Act, are consistent with the policies of the PPS and conform with the Growth Plan, the ROP and OP. She further opined that the proposed instruments appropriately address the broad aims and strategic direction of the MVHCDP, with the details of which to be appropriately refined at the Site Plan Approval application stage.
42Based on Ms. Cooper’s evidence, the Tribunal finds same.
43The Tribunal confirms that it has reviewed and considered the comments offered by the Participants in this matter.
ORDER
44THE 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 subparagraph 2 below, and the Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) set out in Attachments 1 and 2 (respectively) to this Interim Order, are hereby approved in principle;
the Tribunal will withhold the issuance of its Final Order contingent upon the Tribunal receiving and approving the OPA and ZBA submitted in a final form, confirmed to be satisfactory to: the Chief Planner and Executive Director, City Planning and the City Solicitor;
the Panel Member will remain seized for the purposes of reviewing and approving the final draft of the OPA and ZBA and the issuance of the Final Order;
if the Parties do not submit the final drafts of the OPA and ZBA, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in subparagraph 2 above have been satisfied, and do not request the issuance of the Final Order by sixty (60) days following the issuance of this Decision, 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 OPA and ZBA 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; and,
the Tribunal may, as necessary, arrange the further attendance of the Parties by Video Hearing or 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.
“K.R. Andrews”
K.R. ANDREWS
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 2