Temple Ave Partners Inc. v. Toronto (City), 2023 CanLII 5413

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 26, 2023

CASE NO(S).: OLT-21-001749

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

Applicant and Appellant: Temple Ave Partners Inc.

Subject: Application to amend Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Residential (R (d2.0) (x811))

Proposed Zoning: Site specific – to be determined

Purpose: To permit the development of a 16-storey residential building

Property Address/Description: 2-24 Temple Avenue

Municipality: City of Toronto

Municipality File No.: 21 105906 STE 04 OZ

OLT Case No.: OLT-21-001749

OLT File No.: OLT-21-001749

OLT Case Name: Temple Ave Partners Inc. v. Toronto (City)

Heard: January 19, 2023, by video hearing

APPEARANCES:

Parties

Temple Ave Partners Inc.

Counsel

Zachary Fleisher Cole Brown (Articling Student)

Parties

City or Toronto

Counsel

Marc Hardiejowski Michelle LaFortune Adam Ward (Associate Legal Counsel)

DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Settlement Hearing (“Hearing”) for the above noted matter. Temple Ave Partners Inc (“Applicant”) has filed an appeal against the City of Toronto (“City”) for its refusal of a Zoning By-law Amendment (“ZBA”) pursuant to s. 34 (11) of the Planning Act. The properties that are subject of this appeal are known as 2-24 Temple Avenue in the City. (“subject lands”)

2The effect of the ZBA under appeal is to allow the development of a residential building and permit an increased height and density on the subject lands. The initial application was submitted in December 2020 to permit a development of a 16-storey residential building with a Gross Floor Area (“GFA”) of approximately 19,817 square metres (“sq m”) on the subject lands.

3There are two Parties and one Participant on record with respect to this matter. All are represented at this Hearing

4Counsel for the Applicant, Zachary Fleisher, advised the Tribunal that the Applicant has reached a full settlement (“proposed settlement”) with the City.

5The Tribunal has for consideration, at this Hearing, one planning instrument being a ZBA to the City of Toronto Zoning By-law No. 569-2013 as amended (Exhibit I of Exhibit 2).

6Testimony was heard from one planning witness, David McKay (“Planner”). He is qualified to give expert evidence in the discipline of land use planning. With respect to this matter, he has considerable planning experience within the subject area and the City. All Parties heard and consented to the content of the Affidavit (Exhibit 2).

BACKGROUND, SUBJECT PROPERTY AND AREA ANALYSIS

7The subject lands are located at the northwest intersection of Temple Avenue and Dufferin Street. It is generally rectangular in shape with an area of approximately 0.24 hectares (“ha”). Lot frontage along Temple Avenue is approximately 68.5 metres and (“m”) 35.5 m along Dufferin Street respectively. The subject lands are currently occupied by 2 and 3-storey detached and semi-detached houses.

8The subject lands are located in the South Parkdale community that is characterized by low rise commercial, retail, service uses, apartment buildings, converted warehouses, former manufacturing buildings, and residential neighbourhoods that branch off the main streets of the community. There has been considerable Infill and redevelopment interest in the surrounding area that is detailed in Exhibit H of Exhibit 2. The subject lands are in proximity to the King Street West and Dufferin Street Intersection which consists of a mix of commercial and service uses, as well as new mixed-use developments either approved or under construction

9The surrounding land uses consist of a range of built forms and uses including:

1. North - high rise apartments:
2. East - a mix of commercial and converted warehouses in former manufacturing buildings:
3. West - mid and high rise apartment buildings: and
4. South - low rise residential uses.

10Suffice it to say, this application has had a long history. A brief summary is as follows:

1. In December 2020, the Applicants submitted ZBA applications to the City. Staff issued a Notice of Complete Application in January 2021.
2. City staff issued a Preliminary Report in March 2021, and a community consultation meeting was held in April 2021:
3. The Applicant appealed the applications to the Tribunal on September 1, 2021
4. Subsequent to this appeal, there were a series of confidential mediation sessions with the Applicant and the City. In October 2022, the Applicant submitted an initial settlement offer which included revised architectural plans prepared by RAW dated October 11, 2022 (Exhibit E of Exhibit 2).
5. City Council adopted the recommendation of City staff to except the amended Settlement Offer (Item CC2.6 located at Exhibit G of Exhibit 2) at its meeting of December 14 and 15, 2022.

PROPOSED SETTLEMENT

11The major components of the proposed settlement include the following:

1. a 14-storey residential building excluding the amenity penthouse and mechanical penthouse;
2. a GFA of approximately 19,502 sq m representing a Floor Space Index of 8.01;
3. a total of 268 units which include the replacement of rental units/dwelling rooms. The proposed unit breakdown is 7% bachelor units, 57% one bedroom; 26% 2 bedroom, and 10% 3 bedroom units;
4. 526 sq m of indoor amenity space and 778 sq m outdoor amenity space;
5. A total of 88 vehicle parking spaces, 27 short term, and 252 long term bicycle parking spaces: and
6. A series of revisions to setbacks and stepbacks to address City and neighbourhood issues. Mature trees are able to be retained as a result of revised setback provisions.

LAND USE PLANNING POLICY

12Mr. McKay, in his testimony, advised the Tribunal that he routinely takes a very comprehensive view and review of all relevant planning policy and urban design objectives. After doing so for this application, he prepared a comprehensive Affidavit in support of the proposed settlement which included a Detailed Planning and Urban Design Rationale (Exhibit H of Exhibit 2). The ZBA applications are also supported by a multi-disciplinary project team. The Tribunal makes use of both oral testimony and written material in the construct of this decision.

Provincial Policy

13Mr. McKay reviewed s. 2 – Provincial Interests in the Act and noted the many matters that speak specifically to the proposed settlement. He opined that the proposed settlement gives proper consideration to all matters related to s. 2 of the Planning Act.

14The Planner outlined the relevant policies the Provincial Policy Statement, 2020 (“PPS”), which articulates the Provincial-led planning policy regime. The PPS encourages the wise management of land in order to achieve efficient land use patterns by directing growth to settlement areas and promoting a compact form of development. Provisions of the PPS summarized in his evidence are:

1. promoting densities and mix of land uses which result in efficient use of lands, infrastructure, and land use patterns;
2. accommodation of an appropriate range of residential and other uses and accommodating a significant supply and range of housing options through intensification and redevelopment. The proposal will offer additional housing options to existing and future residents in the immediate area and the City as a whole;
3. the integration of land use planning, growth management, and transit supportive development. The subject lands are in close proximity to existing streetcar and bus routes, as well as the Exhibition Go Station and the planned future King-Liberty SmartTrack Station, thereby supporting active transportation and are transit supportive;
4. identifies appropriate areas for intensification with appropriate development standards and directing development to locations that have an appropriate level of infrastructure and public service facilities;
5. is developed in a manner which is compatible with and supportive of the adjacent residential apartment and neighborhood uses; and
6. supports long-term prosperity by optimizing the use of land resources, infrastructure, and public service facilities.

15Mr. McKay opined that the proposed ZBA is consistent with the 2020 PPS

16The Planner gave evidence with respect to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) as amended. The Growth Plan establishes a comprehensive growth management strategy for municipalities in the Greater Golden Horseshoe. Relevant policy considerations include:

1. being within the delineated built-up area and ‘strategic growth area’, near Priority Transit Corridors and within a Major Transit Station Area as defined by the Growth Plan:
2. provides for a complete community by promoting a compact built form that is integrated both within the community and with adjacent land uses;
3. supports the creation of complete communities and optimizing the use of land and infrastructure. Represents a diverse range and mix of housing options that are convenient to a range of transportation facilities, provides for a more compact built form and vibrant public realm are encouraged;
4. municipalities are directed to undertake integrated planning in order to manage forecasted growth to the horizon of the Growth Plan. Integrated planning will assist in providing an urban form that will optimize infrastructure, particularly along transit and transportation corridors, in an effort to support the achievement of complete communities through a more compact built form:
5. supports intensification to make efficient use of land and infrastructure is promoted;
6. support a range and mix of housing options, including additional residential units and affordable housing, to serve all sizes, incomes, and ages of households;
7. supports active transportation and are transit supportive; identifies appropriate areas for intensification with appropriate development standards and directing development to locations that have an appropriate level of infrastructure and public service facilities; and
8. helps ensure economic development and competitiveness of the Greater Golden Horseshoe by integrating and aligning land use planning and economic development goals and strategies.

17Mr. McKay is of the opinion that the proposed ZBA conform to the policies of the 2019 Growth Plan

Municipal Policy

City of Toronto Official Plan (“City OP”)

18The subject lands are designated “Apartment Neighbourhoods” on Map 18, Land Use Plan, of the City OP. Apartment Neighbourhoods are residential areas with taller buildings and higher density where compatible infill developments may take place. City OP policy state that compatible infill development may take place where there is sufficient space on a site to accommodate a building addition or new building. The City OP policy directs a high quality urban environment for both new and existing residents.

19Mr. McKay summarized his evidence and Planning and Urban Design Rationale report by noting that the City OP sets out a number of criteria for development within Apartment Neighbourhoods and sets out a number of strategies and objectives to assist in meeting this outcome, which with respect to this proposal include:

1. design and construction that is of a quality that ensures any new development enhances the quality of the public realm;
2. is located and organized to fit with the existing and/or planned context. The proposal will frame and support adjacent streets, parks, and open spaces to improve the safety, pedestrian interest, and casual views of the spaces from the development;
3. give prominence to the main street setting while maintaining appropriate transitioning to the existing apartment neighborhood and low rise residential properties through a series of stepbacks and setbacks;
4. new housing supply will be encouraged through intensification and infill that is consistent with the City OP. This proposal will add to the overall housing stock of the City and accommodate various household sizes, as well as residents and tenants in various life stages and income within the community;
5. will replace the rental existing dwelling units and add to the housing supply through reinvestment and optimize an underutilized site;
6. will support existing retail, commercial, office and service uses to foster a complete community;
7. will support existing and planned future transit facilities In an ideal infill location at a transit supportive density;
8. will contribute to the quality of life of residents by locating and massing new buildings to ensure an appropriate transition between areas of different development intensity and scale by using such methods as setbacks, a stepping down of heights, appropriate horizontal separation from existing buildings, ensuring there are limited shadow impacts on adjacent properties and
9. to provide a pedestrian scaled building and a streetwall to frame and animate the public realm and streetscape along both Temple Avenue. and Dufferin Street.

20Mr. McKay opined that the ZBA conforms with the intent of the City OP with specific reference to the Apartment Neighbourhoods designation and the policies related to quality architectural, landscape and urban design, provision of much needed housing, built form considerations that include appropriate massing, scale and a focus on appropriate streetwall relationships , a high quality public realm, and a careful balance of competing interests.

City of Toronto Zoning By-law

21The subject lands are presently zoned ‘Residential’ (R(d2.0,x811)) in the comprehensive City Zoning By-law No. 569 –2013 (“By-law 569-2013”). The zone permits a range of residential uses which include apartment buildings. A site specific zoning by-law x811 applies to the subject lands with parts that refer to the City’s By-law No. 518-06 for 8 Temple Avenue.

22The Planner advised the Tribunal that it was determined by City staff that only By-law 569-2013 requires an amendment as appeals against By-law No. 438 – 86 have been resolved the residential zone provisions found in By-law 569-2013 have come into full force and effect.

23The Planner confirmed that the ZBA found at Attachment 1 to this Decision serves to implement the proposed settlement and resulting development by providing a series of specific provisions relating to building heights, density, setbacks, stepbacks and other zone necessary amendments. He noted that the increased setbacks would protect existing street trees along Temple Avenue.

24The Planner made special note of the following, in his evidence, to demonstrate how he came to his conclusion. The proposed settlement:

1. provides for an appropriate scale of intensification given the subject lands in keeping with the Apartment Neighborhood designation. Opportunities for infill development within this designation is contemplated through intensification opportunities;
2. intensification on the subject lands is promoted by the applicable public policy framework. The efficient and optimal use of land and infrastructure along with the encouragement to integrate land use planning and transportation planning is an important public policy direction;
3. the proposed settlement is of a built form and urban design perspective that is contextually appropriate and will represent a high-quality architectural addition to the area. It will fit harmoniously with the existing and planned built form context The subject property represents an intensification opportunity which can accommodate the revised development proposal along with the replacement of the existing rental dwelling units/rooms in an appropriate built form while maintaining mature trees along Temple Avenue;
4. the proposed development is carefully designed to ensure it will be compatible with the height and massing of existing, approved, and proposed developments in the surrounding area. It will provide an appropriate transition to adjacent existing and future build forms;
5. the addition of 268 dwelling units will assist in the achievement of the housing policies of the City’s OP by providing new housing, in a mix of unit types, and makes provision for the replacement existing rental housing units/rooms, thereby contributing to the development of a complete community which is transit supportive.
6. the subject lands are located less than.800 m from existing and future higher order transit and is well served by local transit thereby implementing important public policy directions of both the Province and City.

City Guidelines Relating to the Proposed Settlement and Planning Instruments

25Mr. McKay brought to the attention of the Tribunal a number of City Guidelines that are relevant to the proposed settlement. These guidelines are not statutory policy documents but serve to compliment and provide detail with respect to City OP policy. In his evidence, the Planner testified that the proposed settlement has had appropriate regard for the following City guidelines:

1. Tall Building Guidelines;
2. Pet Friendly Guidelines; and
3. Growing up - Planning for Children in New Vertical Communities.

26In conclusion, Mr. McKay is of the opinion that the proposed settlement represents good planning and is in the public interest. The proposed ZBA has appropriate regard for s. 2 of the Act, is consistent with the 2020 PPS, conforms to the 2019 Growth Plan, as amended, conforms with the policies of the City OP, and has appropriate regard for the relevant City-wide Guidelines.

TRIBUNAL FINDINGS

27The Tribunal accepts the uncontested evidence of Mr. McKay in its entirety and finds the ZBA (as put forward in the proposed settlement) meets all the relevant policy tests of s. 2 of the Planning Act, the PPS, the Growth Plan, and all relevant foundational policies of the City OP, and meets the intent of Zoning By-law No. 569-2013, as amended. It represents good planning and is in the public interest.

28The Tribunal finds that the City has extremely well established planning policy for the subject lands and surrounding area, and has followed a careful, complete, and comprehensive planning review of the proposed settlement and the proposed ZBA.

29The Tribunal finds that the ZBA aligns with the established principles of relevant Provincial policy; the City OP with reasons that include the following:

1. the subject lands are designated “Apartment Neighbourhoods” Land Use Plan, of the City OP. Apartment Neighbourhoods are residential areas with taller buildings and higher density and are where compatible infill developments are contemplated by City OP policy. The proposed development has been shown to be compatible infill development as there is sufficient space on the subject lands to accommodate the new building;
2. represents a development and land use pattern that serves to make efficient use of land and infrastructure and provides for an appropriate scale of intensification;
3. assists in the provision of a full range of housing both in terms of form, tenure, and affordability to meet the current and future needs of Toronto residents. A minimum of 15% of the total number of units will be two-bedroom and 10% three-bedroom units. The proposal makes provision for the replacement existing rental housing units/rooms;
4. serves to integrate land use planning, growth management, transit supportive development as it offers excellent transit-oriented development. It benefits from frequent local transit service and is less than 800 m from existing and future higher order transit;
5. promotes densities which result in the efficient use of land and infrastructure. It is appropriately scaled and sized to ensure a balance between the priority of intensification without resulting in negative built form impacts by providing appropriate setbacks and stepbacks to adjacent existing uses. It is carefully designed to ensure compatibility with the height and massing of existing, approved, and proposed developments in the surrounding area;
6. contributes to the creation of complete communities and optimizes the use of land and infrastructure; with a diverse mix of land uses by promoting a compact built form that is integrated into the both the existing community and adjacent land uses;
7. helps to ensure economic development and competitiveness of the City;
8. serves to integrate and align land use planning and economic development goals and strategies; and,
9. makes efficient use of available infrastructure to accommodate growth.

30In conclusion, the Tribunal finds that the proposed settlement, as presented, is appropriate and a desirable addition to the City and the South Parkdale Community, represents good land use planning, is consistent or in conformity with and meets the objectives of all requisite public policy and is in the public interest.

31The Tribunal is presented with a draft ZBA to implement the proposed settlement that was presented to the City Council at the meeting of December 14 and 15, 2022. City Council accepted the settlement offer subject to a series of conditions (Exhibit G of Exhibit 2. It is therefore appropriate, that City conditions are part of this Interim Order to ensure all necessary matters and requirements are met prior to the Final Order being issued.

INTERIM ORDER

32THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, upon confirmation, satisfaction or receipt of those prerequisite matters identified in paragraph 33 below and the proposed development of the lands in accordance with the plans illustrated in Exhibit E of Exhibit 2 of this proceeding and generally in accordance with the draft Zoning By-law Amendment found in Attachment 1 is approved in principle;

33The Tribunal will withhold the issuance of its Final Order contingent upon confirmation from the Parties, of the following prerequisite matters:

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

b. City Council has approved the Rental Housing Demolition application for 2 – 24 Temple Avenue, under Chapter 667 of the Toronto Municipal Code and pursuant to Section 111 of the City of Toronto Act to demolish the existing rental dwelling units at 2 – 24 Temple Avenue, and, should City Council authorize the application, that the owner has entered into a Section 111 Agreement pursuant to Section 111 of the City of Toronto Act, 2006, and registered said Agreement on title to the, satisfaction of the City Solicitor;

c. the Owner has submitted a revised Functional Servicing Report and Stormwater Management Report, Hydrogeological Review, including the Foundation Drainage Report (“Engineering Reports”) to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;

d. the Owner has secured the design and provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports in order to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

e. the Owner has submitted a revised Transportation Impact Study, including an updated Parking and Loading Study and Transportation Demand Management strategy, all to the satisfaction of the General Manger, Transportation Services; and

f. the Owner has submitted a revised exploratory root excavation report, to the satisfaction of the Supervisor Tree Protection and Plan Review, Urban Forestry.

34The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the issuance of the Final Order and 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 above mentioned appeal.

35If 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 paragraph 33 above have been satisfied, and do not request the issuance of the Final Order by Friday, August 18, 2023, 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 Zoning By-law Amendment 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 revisit this Order.

36The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines end deadline for the submission of the final form of the instrument, the satisfaction of contingent pre-requisites and the issuance of the Final Order.

“Bryan W. Tuckey”

BRYAN W. TUCKEY MEMBER

Ontario Land Tribunal Website: 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.