Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 16, 2023

CASE NO(S).: OLT-22-004540

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

Applicant/Appellant: Churchill Beecroft Developments 1 Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the construction of 44 three-storey townhouses. Reference Number: 21 235582 NNY 18 OZ Property Address: 68, 70, 72, 74, 76 and 78 Churchill Avenue Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-004540 OLT Lead Case No: OLT-22-004540 OLT Case Name: Churchill Beecroft Developments 1 Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A.

Applicant/Appellant: Churchill Beecroft Developments 1 Inc. Subject: Site Plan Description: To permit the construction of 44 three-storey townhouses. Reference Number: 21 235584 NNY 18 SA Property Address: 68, 70, 72, 74, 76 and 78 Churchill Avenue Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-004541 OLT Lead Case No: OLT-22-004540

Heard: April 11, 2023 by video hearing

APPEARANCES:

Parties Counsel

Churchill Beecroft Developments 1 Inc. Jason Park Olivia Rasekhi

City of Toronto Ray Kallio Adam Ward

MEMORANUDM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON APRIL 11, 2023 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Hearing was convened on April 11, 2023, to consider the appeal by Churchill Beecroft Developments 1 Inc. (“Applicant”) pursuant to s. 34(11) of the Planning Act (“Act”). An appeal has also been submitted pursuant to s. 114(15) of the City of Toronto Act seeking Site Plan approval, but for reasons described below, was not considered at this Hearing. The s. 34(11) appeal arises from the failure of the City of Toronto (“City”) to make a decision with respect to a Zoning By-law Amendment Applications (“ZBAs”) submitted by the Applicant, pertaining to lands known municipally as 68-78 Churchill Avenue in the City (“Subject Lands”). The purpose of the ZBAs is to allow for the constructions of forty (40) residential dwellings.

2At the Hearing, the Tribunal canvassed Counsel who confirmed that there was no issue with the service of the Notice. The Tribunal is in receipt of the Affidavit of Service of Fredric N. Cheng, sworn on March 16, 2023, which was marked as Exhibit 1, and confirms that Notice was duly served.

3Initially, this Hearing was scheduled to be a Case Management Conference, but prior to this date, the Parties advised that they had reached a settlement, which they hoped to present to the Tribunal for approval. As such, a Hearing took place to consider the settlement.

PARTY/PARTICIPANT STATUS REQUESTS

4The Tribunal was tasked with adjudicating six (6) requests for Participant Status.

5The following opposed the proposal: Joshua Blinick, Alex Pivovarov, Eric Borromeo, Suranjita and Mousam Hazarika, and Enshu Pan. Collectively, those opposing the proposal raised concerns, including but not limited to: impacts on privacy, environmental concerns (such as tree retention), increase in traffic and congestion, increase in noise due to additional density, lack of conformity with the surrounding neighbourhood, danger of precedent-setting for other developments in this area, and concerns with impacts of construction.

6The Tribunal also received a Participant Status Request from Jeff Oulahen, who supported the proposal, indicating that this would provide for much needed housing supply in the City, that it would be good to have a mix of housing types within this neighbourhood, and that the proposal had positive features.

7The Tribunal found that these individuals had an interest in the matter and would assist it in understanding the potential impacts of the ZBAs on the local community. Moreover, the Parties did not object to any of the requests. As such, the Tribunal granted Participant status to those persons listed in paragraphs [5] and [6] above.

SITE AND AREA CONTEXT

8The Subject Lands are 8,376 square metres (“m2”) in size. They have 91.7 metres (“m”) of frontage onto Churchill Avenue and a depth of approximately 90.95 m. They are the consolidation of six large and long single detached lots, which vary from the pattern within the area as they are larger and deeper lots. They currently contain six single detached dwellings fronting onto Churchill Avenue.

9The surrounding area consists of townhomes (including the Johnson Farm Lane Project across the street and Modus townhouses at 36-49 Churchill Avenue), institutional uses, and single detached dwellings. High-rise buildings are located on the east side of the Subject Lands, starting at 200 m to the east, and in close proximity to Yonge Street. The area where the Subject Lands are located forms the western boundary of the North York Centre Secondary Plan (“NYCSP”) area, where the City has envisioned and planned for significant growth and intensification.

10Yonge Street, located 400 m to the east, provides numerous shopping, recreational, and employment opportunities. The site is within walking distance of surface transit, rapid transit, schools, places of worship, parks, recreational facilities, and libraries. Moreover, Yonge Street is identified as a “Major Street” on Map 3 of the City of Toronto Official Plan (“City OP”). Yonge Street is also a “Higher Order Transit Corridor” (Map 4 – City OP) served by subway services as well as frequent transit surface bus routes. The closest subway entrance is the North York Centre subway station, located approximately 600 m from the Subject Lands. Yonge Street is a main TTC arterial and is also served by GO Transit buses and York Region VIVA service.

THE PROPOSAL BEFORE THE TRIBUNAL

11The ZBAs as reflected in the Settlement Proposal would facilitate the redevelopment of the Subject Lands with 40 residential units, comprising of 9 detached dwellings fronting onto Churchill Avenue and 31 three-storey townhouses internal to the site (“Proposed Development”). Access is provided by an internal private street that would be publicly accessible to enable vehicular and pedestrian access and garbage pickup/service vehicle access within the site. The private road would be a crescent road that would connect to Churchill Avenue at both ends. The existing buildings on the Subject Lands would be demolished.

12The Settlement Proposal resulted from numerous discussions between the Applicant and City staff. At its meetings of March 29, 30, 31, 2023, City Council adopted the confidential staff recommendation to settle this matter.

13The primary changes from the original application to the Settlement Proposal are the reduction in number of units from 44 to 40, use of the Churchill Avenue fronting lots from townhouses to nine (9) single detached lots/dwellings, and the reduction of the total Gross Floor Area from 8,376 m2 to 7,815 m2.

14In order to implement the Development Proposal, Zoning By-law Amendments to the former City of North York Zoning By-law 7625 and the City’s Harmonized Zoning By-law 569-2013 are required:

a. By-law 7625 of the former City of North York (“North York’s ZBL”) zones the Subject Lands Residential Fourth Density Zone (R4). The R4 zoning permits single detached dwellings and requires an amendment to permit the townhouse form of development. The ZBA Application for North York’s ZBL seeks to rezone the Subject Lands to Multiple-Family Dwellings Sixth Density Zone (RM6) with site-specific exceptions to provide zoning standards relating to the form of housing, and additional zoning regulations, as necessary, to permit the Proposed Development.

b. By-law 569-2013 of the City (“Toronto’s ZBL”) zones the Subject Lands Residential Detached (RD(f15.0;a550)(x5)). The ZBA Application for ZBL 569-2013 seeks to rezone the Subject Lands to Residential Townhouse (RT) with site specific provisions. Other required zoning standards may be identified through the technical review process with City staff.

15The Site Plan Control application is also subject to this appeal but was not discussed at the Hearing, as the Parties expect that all Site Plan related issues will be resolved between them.

THE HEARING

16In support of the settlement agreement reached between the Parties, the Applicant called one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty form for Mr. Michael S. Goldberg. Mr. Goldberg was qualified, without objection, to provide expert opinion evidence in the field of Land Use Planning.

17It was the professional planning opinion of Mr. Goldberg that the revised ZBAs are consistent with the Act, have had appropriate regard for matters of provincial interest, and conform to all applicable provincial policies and plans. Moreover, he indicated that they represent good planning, and are in the public interest.

The Planning Act (“Act”)

18It was Mr. Goldberg’s opinion that the ZBAs, the Proposed Development, and the Settlement Proposal have regard for matters of provincial interest under s. 2 of the Act, which the Tribunal must consider.

Provincial Policy Statement 2020 (“PPS”) and A Place to Grow: A Growth Plan for the Golden Horseshoe 2020 (“Growth Plan”)

19Mr. Goldberg testified that the ZBAs, and the Proposed Development they facilitate, are consistent with the PPS and in conformity with the Growth Plan. Specifically, the Settlement Proposal, if approved, would result in a better, more efficient, and compact use on a large, consolidated parcel of land, would optimize the utilization of the land base and its available infrastructure, and would support rapid and surface transit within walking distance of the Subject Lands. Also, by broadening the range and choice of housing opportunities in this neighbourhood, the Settlement Proposal would contribute to achieving a more “complete community”. This is both encouraged and promoted by the PPS and the Growth Plan.

20With respect to the PPS, Mr. Goldberg referred to numerous policies and testified that it provides a policy framework that promotes and encourages intensification, such as the Proposed Development, in locations well served by municipal infrastructure and rapid transit, such as the Subject Lands. He further explained that the Settlement Proposal supports and advances the PPS policy direction to optimize the use of the land, resources, and the existing and planned infrastructure. Thus, he opined that the Proposed Development would be appropriate and suitable for this site and its surrounding context. Moreover, the Proposed Development is well designed and would be sympathetic and compatible with the surrounding character of the area. Lastly, according to Mr. Goldberg, the Proposed Development would introduce additional housing choice, in townhouse and smaller single detached dwellings, representing a broadening of choice within this centrally located neighbourhood in the City.

21With respect to the Growth Plan, Mr. Goldberg again referred to numerous policies and testified that the Settlement Proposal represents intensification within an area meeting the Growth Plan definition of a Major Transit Station Area. Moreover, the Subject Lands are located within the area identified as “built-up area.” Thus, the Subject Lands are well located to achieve a moderate intensification at the scale and density proposed. This in turn moderately increases housing supply within the neighbourhood area. Moreover, according to Mr. Goldberg, the Subject Lands are under-utilized, as they are extremely deep and are surrounded on all sides by smaller more shallow residential lots. From a planning perspective, it is desirable to broaden housing type offerings, advancing the principle of a better balance and choice of housing in this neighbourhood and in having this community evolve as a more complete community. This furthers the life cycle and housing related policies sought by the Growth Plan.

City of Toronto Official Plan (“City OP”)

22Mr. Goldberg explained that the Subject Lands are designated as “Neighbourhoods” on Map 16 – Land Use of the City OP. According to s. 4.1.1, “Neighbourhoods” are considered “physically stable areas made up of residential uses in lower scale buildings such as detached houses, semi-detached houses, duplexes, triplexes, and townhouses, as well as interspersed walk-up apartments that are no higher than four storeys.”

23Mr. Goldberg first clarified that the proposed three-storey townhomes and the single detached dwellings and lots are permitted in this part of the Neighbourhoods area designation and an Official Plan Amendment is therefore not required.

24Mr. Goldberg then testified that the ZBAs, the Proposed Development they facilitate, and the Settlement Proposal are in conformity with the City OP. He opined that the Settlement Proposal fits, will be compatible with, and respects and reinforces the existing physical character of the area, which already includes many townhouses in the immediate Neighbourhoods area. Moreover, pursuant to the Healthy Neighbourhoods provisions set out in s. 2.3.1 of the City OP, there is an expectation that physical change will occur within a neighbourhood and these neighbourhoods will not stay frozen in time. To that end, the Proposed Development represents an infill housing project that respects the physical character of the area and reinforces the low-rise residential stability of the neighbourhood. Mr. Goldberg stated that to respect and reinforce does not call for sameness or replication of what exists today, but requires that a redevelopment achieve a harmonious co-existence with the physical character of the area so that instability and transformational change do not arise. This notion of peaceful and compatible coexistence forms part of the intent of ss. 4.1.8, 4.1.9, and 4.1.10.

25Moreover, Mr. Goldberg explained that the Settlement Proposal will augment the range and choice of housing opportunities within this neighbourhood. The Proposed Development would provide housing for the “missing middle,” allowing for a compromise between the single detached large dwellings and the high-rise developments in close proximity of the Subject Lands. The City OP directs that this occurs throughout the City and in neighbourhoods in order to strike the desired balance of housing stock in a variety of areas in the City. This way, additional households can benefit from the educational, commercial, and recreational amenities provided in the neighbourhoods. Mr. Goldberg added that the converse also applies, wherein neighbourhood amenities would also benefit from the additional population. From a population perspective, the use of the Subject Lands for moderately intensified residential purposes, at the density proposed, would contribute to satisfying the projected minimum population targets and growth needs for an area that is very close to rapid transit.

26Additionally, according to Mr. Goldberg, the Proposal Development would employ site standards, including lot configuration, height, density, setbacks, angular planes, and landscaped areas that would allow for an appropriate, sensitive, and gradual fit with the adjacent single detached residential neighbourhood. In fact, the Proposed Development would allow for an attractive development at a height and density that can be supported from planning and urban design perspectives. Moreover, the proposed form, design, and zoning standards ensure that the Proposed Development conforms with the “Neighbourhoods” development criteria of being sensitive, gradual, and fitting the existing physical character of the established residential neighbourhood. In short, the site organization and development standards, as well as the built form conform to the criteria set out in ss. 4.1.5 and 4.1.9 of the City OP.

27Mr. Goldberg discussed the Public Realm Policies (as amended by OPA 479) in s. 3.1.1 of the City OP. The proposal would provide for improved landscaping along Churchill Avenue, contributing to an attractive streetscape, and satisfying the policy requirements for the Public Realm. For example, Mr. Goldberg referenced an Arborist Report, which indicates that some trees on the site, such as those along the northern edge of the Subject Lands (which are quite mature trees), would be preserved and permits would be required to implement the works near some of these trees; and a number of new on-site trees and boulevard trees would be planted. This is to be addressed in more detail at the Site Plan stage, but Mr. Goldberg mentioned it specifically as it addressed one of the primary concerns of the Participants.

28Mr. Goldberg also discussed the Built Form Policies (as amended by OPA 480) in s. 3.1.2 of the City OP. He opined that the Proposed Development has been designed to appropriately generate a balance of accommodating form, building mass, density, height, and setbacks that compatibly fits in its existing and planned context, as directed in this section of the City OP. Of note, the fine-grain details, such as perimeter privacy fencing details, will be addressed at the Site Plan stage.

29He confirmed in his testimony that the Townhouse and Low-Rise Apartment Design Guidelines have been generally satisfied by the Settlement Proposal. Mr. Goldberg went into significant detail regarding the various aspects of the project (including walkways, building placement, site servicing, parking, fit and transition, setbacks, entrances, amenity space, stormwater management, utilities, etc.) and detailed how the Proposed Development implements the Guidelines.

30In short, Mr. Goldberg confirmed that the ZBAs as revised by the Settlement Proposal, and the Proposed Development they facilitate, would implement and satisfy the policies of the City OP and are in conformity with it.

Participants’ Concerns

31Throughout his testimony, Mr. Goldberg addressed many of the concerns raised by the Participants, as they mirrored some general planning questions. However, in addition, he specifically addressed the following concerns raised by the Participants.

32With respect to privacy concerns, Mr. Goldberg explained that every care has been taken to ensure that as many trees be retained and protected as possible, which would assist in ensuring privacy. Moreover, Mr. Goldberg added that the standards that have been employed in the Proposed Development are conventional rear-yard standards to ensure privacy. Additionally, fencing is to be provided, which would also address privacy concerns.

33With respect to concerns that this Proposed Development would set a precedent for similar developments in the area, Mr. Goldberg explained that the precedent that has led to this Proposed Development already exists in the area and began about thirty years ago. This Proposed Development is simply augmenting the neighbourhood with what already exists. Moreover, he further explained that each application would be considered separately, and a future application may also be appropriate for the area if it paid a similar amount of attention to detail as is apparent in this Proposed Development.

34Lastly, with respect to a number of concerns, such as concerns regarding the construction process, Mr. Goldberg explained that those issues would be dealt with after this ZBA stage. For example, to get a building permit and begin construction, a construction management plan is required and will clarify how construction is to take place with the least amount of inconvenience placed on the neighbourhood.

Zoning By-law Amendments (“ZBA”) and Conditions

35A ZBA is required to facilitate the Proposed Development. As outlined above at paragraph [14] of this Decision, Mr. Goldberg recommended that the ZBAs to North York’s ZBL and Toronto’s ZBL, attached to this Decision, be approved in principle. He confirmed that both ZBAs are substantially very similar.

36He further recommended that the Tribunal withhold its Final Order on the ZBAs pending confirmation of three conditions, itemized below in the Order, which he testified were appropriate.

Conclusion

37Mr. Goldberg concluded that the revised ZBAs, as modified by the Settlement Proposal, have appropriate regard for matters of provincial interest outlined in the Planning Act, are consistent with the PPS, conform to the Growth Plan, and conform to the City OP. He further summarized that the ZBAs are premised on sound and reasonable planning analysis, represent a good planning solution, and are in the public interest. Moreover, he stated that no adverse planning impact is anticipated by the Settlement Proposal in relation to the existing residential area. He recommended that the ZBAs, as revised by the Settlement Proposal, be approved in principle.

38The City’s Counsel confirmed that the City agreed with Mr. Goldberg’s testimony and recommendations.

FINDINGS AND DISPOSITION

39The Tribunal is satisfied by the evidence provided by Mr. Goldberg through his uncontroverted testimony. The Tribunal finds that the proposed ZBAs, the Settlement Proposal, and the Proposed Development of the Subject Lands align with good land use planning, satisfy all legislative tests as detailed above, and warrant approval. In particular, the proposal represents an efficient, transit supportive development. The Tribunal is satisfied that the proposed ZBAs, as well as the conditions proposed, implement the development of the Subject Lands in the manner being proposed.

INTERIM ORDERS

THE TRIBUNAL ORDERS that:

40The appeal of the application for zoning by-law amendment made by the Applicant is allowed, in part, and the Zoning By-law Amendment to the former City of North York Zoning By-law 7625, attached as Attachment 1, is approved in principle. The Tribunal will withhold its final Order subject to the satisfaction of the matters set out in paragraph [42] of this Decision.

41The appeal of the application for zoning by-law amendment made by the Applicant is allowed, in part, and the Zoning By-law Amendment to the City of Toronto’s Harmonized By-law 569-2013, attached as Attachment 2, is approved in principle. The Tribunal will withhold its final Order subject to the satisfaction of the matters set out in paragraph [42] of this Decision.

42The Tribunal’s final Order is withheld until the Tribunal has been advised in writing by the City Solicitor that the following outstanding matters have been completed:

a. The proposed Zoning By-law Amendments are in a final form satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor.

b. The Applicant has resubmitted the Functional Servicing and Stormwater Management Report and Hydrogeological Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.

c. The Applicant has entered into an agreement or agreements or otherwise secured the design, construction, and the provision of financial securities for any required upgrades or improvements to the existing municipal infrastructure should it be determined that improvements or upgrades are required to support the development as may be identified in the accepted Functional Servicing and Stormwater Management Report, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.

43In the event that the conditions for approval of Final Orders have not been finalized by December 1, 2023, the Parties shall provide a written status update to the Tribunal by that date. If the Parties fail to do so, the Tribunal may schedule, on a peremptory basis, a further Case Management Conference to address status matters.

44With respect to the site plan appeal, OLT file 22-004541, the Parties shall finalize the notice of approval conditions for site plan approval. Until such time as this is completed, the Site Plan appeal will be held in abeyance. In the event that the Parties are able to resolve all issues pertaining to the Site Plan appeal, the Tribunal encourages them to seek approval in writing pursuant to the Tribunal’s Rules of Practice and Procedure.

45The Tribunal may be spoken to in the event that there are difficulties in satisfying the above conditions for the issuance of the Tribunal's final Order in respect of the zoning by-law amendments appeal and/or finalizing the notice of approval conditions for site plan approval.

46This Member will continue to be seized with respect to these appeals.

“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.

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