Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 12, 2023
CASE NO(S).: OLT-22-002097
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Dundeal 212 King LP, 214 King Holdings Limited and 220 KSW LP
Subject: Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment
Existing Designation: Regeneration Areas
Proposed Designated: Site Specific (To be determined)
Purpose: To permit an 80-storey mixed-use building with 569 purpose-built rental units
Property Address/Description: 212-220 King Street West
Municipality: City of Toronto
Approval Authority File No.: 20 227738 STE 10 OZ
OLT Case No.: OLT-22-002097
OLT File No.: OLT-22-002097
OLT Case Name: Dundeal 212 King LP v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Dundeal 212 King LP, 214 King Holdings Limited and 220 KSW LP
Subject: Application to amend Zoning By-law No. 438-86 - Refusal or neglect of City of Toronto to make a decision
Existing Zoning: RA (Reinvestment Area)
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit an 80-storey mixed-use building with 569 purpose-built rental units
Property Address/Description: 212-220 King Street West
Municipality: City of Toronto
Municipality File No.: 20 227738 STE 10 OZ
OLT Case No.: OLT-22-002097
OLT File No.: OLT-22-002098
Heard: May 2, 2023, by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Dundeal 212 King LP, 214 King Holdings Limited, and 220 KSW LP | Joe Hoffman, David Bronskill (in absentia) |
| City of Toronto | Mark Crawford |
| BentallGreenOak | Andrew Jeanrie |
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM AND BITA M. RAJAEE ON MAY 2, 2023, AND INTERIM ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION AND BACKGROUND
1Dundeal 212 King LP, 214 King Holdings Limited, and 220 KSW LP (“Applicants”) filed an appeal resulting from the City of Toronto’s (“City”) failure to make a decision within the statutory timeframe for an Official Plan Amendment (“OPA”) pursuant to s. 22(7) and a Zoning By-law Amendment (“ZBLA”) pursuant to s. 34(11) of the Planning Act (“Act”). The purpose of the OPA and ZBLA is to allow for the development of an 80-storey mixed use building at 212-220 King Street West in Toronto (“Subject Site”).
2The original application proposed to amend the City’s Official Plan and Zoning By-law to permit redevelopment of the Subject Site with an 80-storey (311.8 metre [“m”]) mixed-use development, containing a total gross floor area of 116,864 square metres (“m2”), which would include 872 m2 of retail space, 74,130 m2 of office space, and 588 residential rental units. The overall floor space area of the original proposal was 24.78 times the lot area. The proposal was to retain and incorporate portions of the three existing heritage building facades as a base element, with a new interior structure constructed within the retained facades.
3Since the original proposal was considered by the City, the Parties have engaged in various consultations, meetings, and private mediation. Through the process, revisions were made to the original concept and a settlement offer and proposal were considered and accepted by both the Toronto Preservation Board and City Council in March 2023. The Settlement Proposal included required alterations to the heritage properties, as well as a recommendation for the Applicants to enter into Heritage Easement Agreements with the City to secure the conservation of the retained portions of the heritage buildings.
4Prior to the Hearing, the Tribunal was advised that the Parties had reached a settlement in this matter, which they wished to present to the Tribunal for approval.
5Moreover, the Tribunal was notified at the start of the Hearing that the Parties had collectively determined that the OPA is no longer needed. The Applicants’ Counsel indicated that they would be asking for the ZBLA only. Further details and the evidence provided to the Tribunal on this is described below.
6A Case Management Conference took place on this matter on May 20, 2022 (“CMC”). At the CMC, BentallGreenOak was granted Party Status. BentallGreenOak was also a Party to the settlement and agreed with the proposal that was presented to the Tribunal for approval. Also at the CMC, Tracy Sutherland and 200 King Street Holdings Inc. were granted Participant Status. Both provided written statements to the Tribunal, which set out their concerns with the proposal.
LOCAL AND SURROUNDING AREA CONTEXT
7The Subject Site is in Downtown Toronto in one of the five designated Urban Growth Centres in the City and at the interface of the Financial District and the King-Spadina neighbourhood. The Financial District contains a significant cluster of very tall buildings and a high density of office workers. The King-Spadina area has a highly diverse mix of uses and a large concentration of heritage properties.
8The Subject Site contains three existing historic buildings that are subject to various levels of heritage protection. Each of the three buildings are oriented primarily toward King Street West and have rear servicing and loading access from Pearl Street to the north.
9South of the Subject Site is a block that includes Roy Thomson Hall, David Pecaut Square, and Metro Hall. East of the Site is a 24-storey office building at 200 King St. West which is also connected to St. Andrew station on the TTC Line 1 Yonge-University subway. North of the Subject Site is a high-rise mixed-use development that includes a combination of non-residential and residential uses. West of the Site is a 47-storey mixed use development that contains ground floor retail space and over two hundred residential units above.
10The Tribunal heard that the area surrounding this property has experienced a large volume of development activity over the past two decades, including some of the highest and densest development proposals in the City. Five other examples of tall building developments were identified as being constructed or completed in the area surrounding the Subject Site.
PROPOSED SETTLEMENT
11Briefly summarized, the Settlement Proposal reflects a revised design for a 250-m high mixed-use development (“Proposed Development”). While the size and extent of the Subject Site has not changed, there have been a number of revisions made since the original applications were submitted.
12The Settlement reflects the following changes from the original proposal:
a. The overall height has been reduced from 80 storeys (311.8 m) to 250 m.
b. The quantity of proposed non-residential gross floor area has been reduced to 17,950 m2, which represents the total combined amount of retail and office gross floor area located within the three existing buildings on the Subject Site. The reduction in office floor area also has the effect of reducing the scale and massing of the building. The previously proposed PATH connection has been removed from the plans, given the significant reduction in the non-residential component of the proposal, which eliminates the viability of the connection.
c. The proposed amount of residential gross floor area is 81,500 m2. The total proposed residential and non-residential gross floor area is approximately 99,450 m2. The total number of residential units has not yet been finalized.
d. The interior ground-floor mid-block connection has been maintained in the Settlement Proposal. The Proposal also considers outdoor space and amenity space on the rooftop of the tower. Details related to this part of the development will be reflected in the proposed ZBLA.
e. The amount of parking will be determined prior to the finalization of the ZBLA, as the City’s parking policies have changed since the original submission. However, the intent is to minimize the parking spaces and prioritize transit and active transportation.
f. The proposed tower floorplate is 1255 m2, which is a shift from the original proposal which included a typical office tower floor plate of 2350 m2 and residential floorplate of 990 m2. The floorplate size is appropriate for the Subject Site given the size of the Site, the setbacks, a larger servicing core and the pattern of development immediately surrounding the site of towers with varying floorplate sizes.
g. The Proposal continues to incorporate extensive heritage conservation to maintain the attributes of the three existing heritage structures on the Subject Site.
h. The built form has been modified to accommodate an alternative relationship between the retained heritage elements and the new construction. The proposed tower incorporates an increased step-back from the retained heritage elements along King Street West, maintaining step-backs of 3 m and 10 m along Simcoe and Pearl Streets respectively.
13The Parties jointly requested that the Tribunal provide a provisional approval of the ZBLA, contingent upon confirmation of the following pre-requisite matters:
a. The Tribunal has received and approved the Zoning By-law Amendment, in a final form, confirmed to be satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;
b. The Tribunal is advised that the Applicant has addressed the comments in the Engineering and Construction Services memo dated August 4, 2022, or any update to that memo, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
c. The Tribunal is advised that the Applicant has entered into an In-kind Contribution Agreement pursuant to section 37(7.1) of the Planning Act to secure 11 affordable housing rental dwelling units as part of the redevelopment, to the satisfaction of the Chief Planner and Executive Director, City Planning;
d. The Tribunal is advised that the Applicant has entered into a Heritage Easement Agreement with the City for the properties at 212 and 220 King Street West to the satisfaction of the Senior Manager, Heritage Planning, including execution of such agreement to the satisfaction of the City Solicitor;
e. The Tribunal is advised that the Applicant has entered into an agreement to amend the existing Heritage Easement Agreement for the property at 214 King Street West to the satisfaction of the Senior Manager, Heritage Planning, including execution of such agreement to the satisfaction of the City Solicitor; and
f. The Tribunal has been advised that the Applicant has provided a detailed Conservation Plan to the City, prepared by a qualified heritage consultant, to the satisfaction of the Senior Manager, Heritage Planning.
LEGISLATIVE CONTEXT
14On this appeal, the Tribunal must be satisfied that the proposed ZBLA is representative of good planning and in the public interest. With respect to the specific legislative tests to be met, the Tribunal must be satisfied that the proposed ZBLA is consistent with the Provincial Policy Statement, 2020 (“PPS”), and conforms with or does not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe Area (“Growth Plan”). Additionally, the proposed ZBLA must conform with the applicable official plans, in this case the City’s Official Plan (“OP”). Finally, the Tribunal must have regard to matters of Provincial interest set out in s. 2 of the Act, and to the information and materials that City Council received in relation to the matters under s. 2.1(2) of the Act.
HEARING
15As evidence at the hearing, the Tribunal received the following exhibits, which were identified sequentially during the hearing:
Exhibit 1: Affidavit of Service of Notice of CMC
Exhibit 2: Affidavit of Benjamin Hoff
Exhibit 3: Visual Exhibits
Exhibit 4: Architectural Plans
Exhibit 5: City Council Minutes; March 29, 2023
16In support of the proposed ZBLA, and the Settlement Proposal among the Parties, the Applicants presented Benjamin Hoff, a Registered Professional Planner in the Province of Ontario and a member of the Canadian Institute of Planners, whom the Tribunal qualified, on consent of the Parties, to provide land use planning opinion evidence. By way of written and oral testimony, Mr. Hoff provided a comprehensive contextual and planning rationale in support of the Proposed Development. He opined that the proposed ZBLA, which would facilitate the Proposed Development, satisfies all requisite legislative tests described above.
17During his testimony, Mr. Hoff also addressed the concerns raised by the Participants in their respective statements that were filed with the Tribunal.
18The City and BentallGreenOak supported the proposed settlement and did not provide evidence at the settlement hearing.
EVIDENCE
The Planning Act
19Mr. Hoff indicated that the Proposed Development has appropriate regard for relevant matters of provincial interest. Specifically, it was his opinion that the proposal directly aligns with the Act, given that it will provide a full range of housing options, is in an appropriate location for growth, is well designed, provides public spaces, provides employment opportunities and development, and is pedestrian friendly with several options for the use of public transportation. He also noted that it will conserve heritage attributes of the three existing heritage buildings and will be supported by existing water and sanitary sewage infrastructure. He contended that it will be an orderly development that provides new mixed-use options that are appropriately integrated into the existing and planned context of the Subject Site. Moreover, it will have a mix of unit sizes as well as affordable housing units.
PPS
20It was Mr. Hoff’s opinion that the Proposed Development is consistent with the PPS. The PPS encourages development patterns that support diverse, healthy, and liveable communities by encouraging intensification at appropriate locations, to accommodate growth and increase urban vitality.
21Mr. Hoff highlighted multiple sections of the PPS during his testimony to demonstrate how the Proposed Development was in alignment with the PPS. Specifically, Mr. Hoff highlighted Sections 1.1, 1.3, 1.4, 1.6, 1.7, and 1.8 in providing specific examples that support this opinion.
Growth Plan
22It was Mr. Hoff’s opinion that the Proposed Development conforms with the Growth Plan and in particular, the guiding principles in Section 1.2.1. In addition, he suggested that the proposal especially supports sections related to urban growth centres, transit corridors, employment, and housing.
23Specifically, Mr. Hoff noted that the Subject Property is located within the Downtown Toronto Urban Growth Centre and is within the ridership catchment areas of St. Andrew and Osgoode transit stations. The Proposal also preserves cultural heritage resources and provides higher density residential and commercial uses within a full range of services and amenities.
City’s OP
24It was Mr. Hoff’s opinion that the Settlement Proposed conforms with the OP, such as with its public realm policies. Specifically, he referenced how the project complied with Chapter 2, Shaping the City, and Chapter 3, Building a Successful City. He also referred the Tribunal to Sections 3.1.1 – The Public Realm, and Policy 3.1.1.2, with which the Proposed Development conforms in his opinion.
25Mr. Hoff opined that the retainment of heritage buildings is a critical part of the project conforming with the OP public realm policies. In addition, he noted that the Settlement Proposal will accommodate space for pedestrian movement, street trees and other landscaping, and streetscape features and amenities.
26Mr. Hoff also contended that the Project conforms with the OP’s built form policies in that it fits with the existing and planned context which is surrounded by some of the tallest and densest built forms in Toronto, and provides setbacks, steps-backs, and tower separation distances that have regard for the retained cultural heritage elements and result in appropriate separation to adjoining existing and approved tall buildings.
27He also opined that the 250 m height is compatible with the existing and planned pattern of development in the surrounding area while maintaining adequate sunlight on streets, sidewalks, and nearby parks and open spaces.
28Mr. Hoff indicated that the Proposal conforms with the OP’s policies for tall buildings. He confirmed that the setbacks allow for an appropriate framing of the heritage elements and respect the existing and planned development on neighbouring properties. It was his contention that the proposed tower floorplate, while larger than typical for a building this size, is justifiable given the context of the Subject Site in recognition of minimal shadow impacts, large site size, appropriate overall tower separation, the requirement to accommodate a larger servicing core for a tower of this height, and the pattern of development in the immediate surroundings that includes numerous towers in proximity with varying floorplate sizes.
29Mr. Hoff referred to Section 3.1.6 – Heritage Conservation and indicated his opinion that the Settlement Proposal conforms to the heritage conservation policies. His opinion was informed by the Heritage Impact Assessment, which supported the original proposal and has continued to be relied on in shaping revisions to the conservation approach. He noted that the Settlement Proposal will conserve the cultural heritage values, attributes, and character of the three existing heritage properties.
30Mr. Hoff opined that the Proposal conforms with the OP’s policies related to housing. He referred to Section 11.1 of the Downtown Secondary Plan and indicated that the development will include a minimum of 15% two-bedroom units, minimum of 10% three-bedroom units, and an additional 15% of the total number of units as a combination of two and three-bedroom units or units that can be converted through accessible or adaptable design measures. Further, he noted that the project will include a mix of market housing and will contribute 11 affordable two-bedroom units. It was also his opinion that the proximity to current and planned transit infrastructure made it an ideal area for transit-supportive intensification.
31Mr. Hoff indicated that while an OPA was filed with the original proposal, through settlement discussions with Community Planning, it has been determined that a Site and Area Specific Policy to the Official Plan was no longer required and the Proposed Development, as is, conforms with the OP.
King-Spadina Secondary Plan (“KSSP”) and Proposed Update
32Mr. Hoff provided an overview of the KSSP and submitted that the Proposed Development contributes to the objectives of the KSSP and will support its ongoing vitality by contributing to the objectives of residential and non-residential intensification and the conservation approach regarding the three existing cultural heritage assets.
33Mr. Hoff noted that the KSSP is being updated and he opined that, while the updated KSSP is not in force, the Proposed Development has appropriate regard for it and will reflect Council’s updated vision for the King-Spadina neighbourhood. Specifically, he referred to the building height transition that the development supports, and the public realm improvements through the proposed Privately Owned, Public Spaces (“POPS”) that will further support area parks and open spaces with, in his words, “an innovative, elevated public space” (pg. 43, Exhibit 1).
Proposed King-Spadina Heritage Conservation District Plan (“HCD”) (2017 – Under Appeal)
34Mr. Hoff indicated that the proposed HCD identifies contributing and non-contributing properties to heritage conservation. The three existing heritage properties on the Subject Site are identified as contributing properties and the HCD Plan contains policies and guidelines applicable to alterations and additions to contributing properties.
35It was Mr. Hoff’s opinion that, while the HCD is under appeal, the proposal represents a good outcome for the retained heritage building elements. He noted that the step-backs are generous, and that the new construction is compatible with and respectful of the three heritage properties as it will conserve their cultural heritage value, attributes, and character.
Tall Building Design Guidelines (2013) (“TBDG”)
36Mr. Hoff provided an explanation of the TBDG and noted that all tall building proposals in the City are subject to the TBDG. He indicated that the proposal is generally in keeping with the performance measures set out in the TBDG and specifically with respect to site context and organization, tall building design, and the pedestrian realm. He contended that the reuse of the heritage structures will accommodate street level uses and more opportunities for pedestrians to experience the heritage character of the area. Further, he indicated that, through the site-plan control process, opportunities related to streetscape enhancements will be explored and issues with wind conditions will also be studied to ensure impacts on the public realm are minimized.
Growing Up Urban Design Guidelines (“GUDG”)
37Mr. Hoff explained that these guidelines were adopted by City Council in 2020 with the intent of integrating “family suitable design into the planning of new multi-unit residential development.”
38Mr. Hoff contended that the Proposed Development meets the intent of the GUDG in that it will increase the amount of family-friendly housing opportunities in a dense urban context, close to transit and other amenities, and will provide communal indoor and outdoor residential amenity space. In addition, at the individual unit level, a proportion of larger units will accommodate families in all stages of life. Mr. Hoff indicated that, to ensure overall affordability, unit sizes will be optimized based on market demand in the surrounding area which he indicated is common in contemporary development proposals.
ZBLA
39Mr. Hoff indicated that a ZBLA is required to amend the City’s Zoning By-law 569-2013 to implement the standards that define the proposal, as detailed above.
40He further opined that the required ZBLA will implement the Settlement Proposal and represents good planning and design. He also confirmed that the proposed ZBLA will be subject to finalization to the satisfaction of City Staff.
Participant Concerns
41The Participants to the Hearing raised concerns related to building proximity and the impact on their privacy, built form, air quality, impact on neighbouring buildings, construction management and disruption, heritage preservation, and cumulative effects of multiple towers in the same area. Mr. Hoff provided comments on each of the issues raised by referring to the details of the proposal and to relevant statutes and processes of the City, indicating that the Proposed Development addressed the concerns as required. Moreover, several of the concerns are to be addressed at other stages of this development, outside of the ZBLA application.
Summary Comments
42Mr. Hoff indicated, in summary, that the proposal represents an orderly development of the Subject Site at an appropriate location for growth where there is a diverse availability of existing and planned transit and other municipal infrastructure. In addition, he contended that the Proposed Development provides for a range of housing options based on cost and size in an area where employment opportunities exist. It was his opinion that the Settlement Proposal, if approved, will implement the full range of planning policies referenced above.
43In closing, Mr. Hoff indicated support for the prerequisite conditions outlined at paragraph 13 of this Decision that would ensure the following:
The provision of 11 affordable rental housing units;
The ZBLA is in a form satisfactory to the City;
Engineering and Construction Services conditions are addressed; and
Heritage alternations will be undertaken in accordance with submitted plans and with a Conservation Plan satisfactory to the City and will be secured through a Heritage Easement Agreement.
ANALYSIS AND DISPOSITION
44The Tribunal, having heard uncontroverted expert opinion evidence in the area of land use planning in support of a settlement among the Parties, is satisfied that the ZBLA, the settlement, the Proposed Development they facilitate, and the Conditions to the ZBLA have appropriate regard for matters of provincial interest, are consistent with the Provincial Policy Statement, conform with the Growth Plan for the Greater Golden Horseshoe, conform with the City of Toronto Official Plan, including a number of other pertinent municipal policies and guidelines, represent good planning, and are in the public interest.
INTERIM ORDER
THE TRIBUNAL ORDERS that:
45The appeal pursuant to s. 34(11) of the Planning Act is allowed in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in the paragraphs below, and a Zoning By-law amendment, to facilitate the Proposed Development of the Subject Site in accordance with the plans marked by the Tribunal as Exhibit 4, is hereby approved in principle.
46The Tribunal will withhold issuance of its Final Order contingent upon confirmation of the following pre-requisite matters:
i. The Tribunal has received and approved the Zoning By-law Amendment, in a final form, confirmed to be satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;
ii. The Tribunal is advised that the Applicant has addressed the comments in the Engineering and Construction Services memo dated August 4, 2022, or any update to that memo, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
iii. The Tribunal is advised that the Applicant has entered into an In-kind Contribution Agreement pursuant to section 37(7.1) of the Planning Act to secure 11 affordable housing rental dwelling units as part of the redevelopment, to the satisfaction of the Chief Planner and Executive Director, City Planning;
iv. The Tribunal is advised that the Applicant has entered into a Heritage Easement Agreement with the City for the properties at 212 and 220 King Street West to the satisfaction of the Senior Manager, Heritage Planning, including execution of such agreement to the satisfaction of the City Solicitor;
v. The Tribunal is advised that the Applicant has entered into an agreement to amend the existing Heritage Easement Agreement for the property at 214 King Street West to the satisfaction of the Senior Manager, Heritage Planning, including execution of such agreement to the satisfaction of the City Solicitor; and
vi. The Tribunal has been advised that the Applicant has provided a detailed Conservation Plan to the City prepared by a qualified heritage consultant to the satisfaction of the Senior Manager, Heritage Planning.
47The Official Plan amendment application is hereby dismissed, having heard the uncontested land use planning evidence of Mr. Hoff that the settlement conforms with the City of Toronto Official Plan and an Official Plan amendment is not required to implement the settlement.
48If the Parties do not submit the final draft of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in the paragraphs above have been satisfied, and do not request the issuance of the Final Order by November 3, 2023, then the Applicants shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal.
49The Tribunal may, as necessary, arrange for further attendance by the Parties via Telephone Conference Calls to determine additional timelines and a deadline for the submission of the final draft of the Zoning By-law Amendment, the satisfaction of the contingent pre-requisites, or the issuance of the Final Order if required.
50The Panel Members will remain seized for the purposes of reviewing and approving the final draft Zoning By-law Amendment and the issuance of the Final Order.
51The Tribunal may be spoken to if there are difficulties in satisfying the above conditions for the issuance of the Tribunal's final Order.
“Gregory J. Ingram”
GREGORY J. INGRAM
MEMBER
“Bita M. Rajaee”
Bita m. RAJaEE
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.