Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 22, 2023
CASE NO(S).: OLT-21-001257
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: DVP Hotel Development LP
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit four mixed-use buildings
Reference Number: 20 198704 NNY 16 OZ
Property Address: 175 Wynford Drive
Municipality/UT: North York/Toronto
OLT Case No.: OLT-21-001257
OLT File No.: OLT-21-001257
OLT case Name: DVP Hotel Development LP v. Toronto (City)
Heard: May 3, 2023 by video hearing
APPEARANCES:
Parties
Counsel
DVP Hotel Development LP
Andrew Jeanrie Stephanie Brazzell
City of Toronto
Jason Davidson
IMARA National
Christina Kapelos
Don Mills Residents Inc.
Conner Harris
MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI AND DAVID BROWN ON MAY 3, 2023 AND INTERIM ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1This matter involves an appeal filed by DVP Hotel Development LP (“Appellant”) against the City of Toronto’s (“City”) failure to make a decision on a Zoning By-law Amendment (“ZBA”) Application (“Application”) pursuant to s. 34(11) of the Planning Act (“Act”) within the prescribed timeframe. The Application affects the lands known municipally as 175 Wynford Drive (“Subject Property”) located north of Eglinton Avenue East between the Don Valley Parkway and Wynford Drive.
2The Application proposes to amend the former City of North York Zoning By-law No. 7625, as amended by By-law No. 112-2016 (“ZBL 7625”) and the City of Toronto Zoning By-law No. 569-2013, as amended (“ZBL 569-2013”) to facilitate the redevelopment of the Subject Property to permit four residential towers with heights varying between 47 and 54 storeys sited atop five- and six-storey podiums comprised of a hotel, retail uses, community uses, and a daycare.
3The Subject Property is approximately 21,920 square metres (“m2”) in area and is bounded by the on-ramp to the Don Valley Parkway to the west, a private road north of Eglinton Avenue East to the south, frontage on Wynford Drive to the east and woodlands to the north. It is currently developed with a hotel and convention centre, accessory recreational amenities, and associated commercial uses (including a restaurant and gift shop). The Subject Property is accessed from the private road located on the south side and a driveway from Wynford Drive near the north limit of the property. The frontage on the private road is elevated from the lands to the south by a significant retaining wall that ranges in height from approximately 5 to 8 metres (“m”).
4The Subject Property is surrounded by predominantly high-density residential uses comprised of high-rise condominiums both north and south of Eglinton Avenue East, with substantial separation from low-density surrounding residential neighbourhoods in the range of 519 m to 765 m. Directly south of the Subject Property is a mid-rise condominium development, abutting to the west is the Accolade Condominium building, and to the north and northeast are office buildings and a commercial plaza. There are significant natural areas proximate to the site including the woodlands to the immediate north and a conservation area to the east. The site is in close proximity to significant transportation corridors including the Don Valley Parkway and Eglinton Avenue East and is located within a Strategic Growth Area and a Major Transit Station Area (“MTSA”) as defined by A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”) and as designated in the City Official Plan (“OP”). The Subject Property is served by higher-order public transit including the Eglinton Crosstown Light Rail Transit (“LRT”) (currently under construction).
5The Application was filed with the City on September 25, 2020 and deemed complete as of November 11, 2020. The Appellant filed a revised submission in June 2021 in response to feedback received through the review of the original proposal and subsequent to Tribunal-led Mediation addressing issues related to the built form, height, massing, and public realm design. The proposal was further amended resulting in the proposal filed with the Tribunal as described in the plans, dated January 20, 2023 (“Proposal”). The four towers and podiums contain 2,576 dwelling units and 125 hotel suites with 154,921 m2 of residential floor area, 14,543 m2 of non-residential floor area with four levels of underground parking. The proposal also includes two privately owned publicly accessible spaces (“POPS”).
6On February 22, 2023, the Toronto Lands Corporation withdrew as a Party from the appeal advising that its issues had been addressed.
7The Tribunal was advised ahead of the hearing that the Toronto and Region Conservation Authority is satisfied with the terms of the settlement and would not attend the hearing.
8Arising from settlement discussions with the Don Mills Ratepayers Inc. and IMARA National, the Proposal was further revised to reduce tower floor plates in Towers 1,3, and 4, shift and rotate Towers 1 and 3 together, with revising the middle tower sections of Towers 1 and 3, creating greater tower separations. Tower heights were revised to offset the reduced tower floor plates with an overall reduction in the gross floor area of approximately 4,000 m2. The total number of residential units is reduced to 2,496 units (“Settlement Proposal”). The revisions are detailed in Exhibit 3 filed with the Tribunal.
9The Tribunal received correspondence from the Appellant in advance of the hearing advising that the Parties have settled the issues and requesting that the Tribunal convert the proceedings to a Settlement hearing. The Parties in attendance confirmed to the Tribunal that they consented to the conversion of the proceedings.
10In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.
11The Appellant advised the Tribunal ahead of the hearing that all Parties have withdrawn their issues but for those on a revised consolidated issues list submitted to the Tribunal. The Appellant further advised the Tribunal that they were seeking approval in principle for the Settlement Proposal and that neither of the issues on the revised consolidated issues list are issues in dispute between the Parties. The revised issues list consisted of one issue from the Appellant related to whether the ZBA is good planning and in the public interest and one issue from the City related to whether, in the event the appeal is allowed, the Tribunal’s Order should be withheld until certain conditions are satisfied.
12The Appellant advised the Tribunal that they are no longer pursuing the Plan of Subdivision application filed in connection with the Application as the revised proposal does not include the dedication of a public road. The Appellant anticipates they will be withdrawing the related appeal brought under section 51(34) of the Act.
13The Appellant submitted revised draft By-laws as Exhibits 4a and 4b, to replace the draft By-laws that were included in the Joint Document Book entered as Exhibit 1.
LEGISLATIVE FRAMEWORK
14When considering an appeal of an application to amend a zoning by-law filed pursuant to s. 34 of the Act, the Tribunal must have regard to matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the Growth Plan. The Tribunal must also be satisfied that the ZBA conforms with the OP.
15In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the ZBA represents good planning and is in the public interest.
SUBMISSIONS
16The Tribunal qualified Peter Smith, on consent, to provide opinion evidence as an expert in the area of land use planning and urban design.
17With respect to the policy and regulatory context, Mr. Smith opined that the ZBA has regard for the applicable matters of provincial interest pursuant to s. 2 of the Act, and in particular:
h) the orderly development of safe and healthy communities,
j) the adequate provision of a full range of housing, including affordable housing,
d) the conservation of features of significant architectural, cultural and historical interest,
p) the appropriate location of growth and development,
q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians, and
r) the promotion of built form that is well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.
18Mr. Smith opined the Settlement Proposal represents orderly development providing a range of housing in an appropriate location for growth. The Subject Lands are well serviced by municipal infrastructure including convenient access to public transit. The Settlement Proposal includes high quality public spaces that will encourage a sense of place that is safe, accessible, attractive and vibrant.
19In consideration of the PPS, Mr. Smith opined that the Settlement Proposal is consistent with the PPS, in particular the policies relating to residential intensification and the efficient use of land and infrastructure. Mr. Smith directed the Tribunal to his Witness Statements submitted with the Tribunal (Exhibits 5 and 6) which identify the relevant policies of the PPS on which Mr. Smith relied. The Tribunal was directed to the policies found in Section 1.1, which promote efficient development and land use patterns, Section 1.1.3 which promote land use patterns that efficiently use land and infrastructure and are transit supportive, Section 1.3 encouraging compact mixed-use development that incorporates employment uses to support liveable and resilient communities, Section 1.4 which direct planning authorities to provide for an appropriate range and mix of housing options, Section 1.6 encouraging that the use of existing infrastructure and public service facilities should be optimized and supporting the current and future use of transit and active transportation, and the economic policies and energy conservation and climate policies of Sections 1.7 and 1.8.
20It is Mr. Smith’s opinion that the Settlement Proposal conforms with the Growth Plan, in particular the policies that seek to optimize the use of land and infrastructure and to encourage growth and intensification in Strategic Growth Areas, including MTSAs implementing the objectives for a complete community and requiring minimum density targets for MTSAs along Priority Transit Corridors.
21Mr. Smith proffered that the City delineated the boundaries of MTSAs across the City in conformity with the Growth Plan, with the approval of Official Plan Amendment 575 (“OPA 575”) which created the Wynford MTSA and Site Area Specific Policies 685 (“SASP 685”) which establish a minimum population and employment target of 200 residents and jobs combined per hectare. OPA 575 includes the Subject Lands within the boundaries of the Wynford MTSA and Mr. Smith advised that the Subject Lands are in close proximity to the future Wynford LRT station located on the Eglinton Crosstown LRT route located directly south of the Subject Property on Eglinton Avenue East.
22The Subject Property is designated Mixed Use Areas in the OP, with the northern portion designated Other Open Space Areas and Natural Areas, which coincides with the ravine lands. Mr. Smith opined that the Settlement Proposal conforms to, and is permitted by, the Mixed Use Areas designation, which is one of four land use designations anticipated to accommodate much of the City’s growth.
23Mr. Smith reviewed the criteria for development in the Mixed Use Areas policies and opined that the Settlement Proposal achieves a balance of high quality commercial, residential, institutional, and open spaces uses that reduce automobile dependency and meet the needs of the local community providing new jobs and homes for the City’s growing population on underutilized lands.
24With regard to the Public Realm and Built Form policies of the OP, Mr. Smith reviewed renderings prepared by the Architect and explained how the Settlement Proposal will reduce significantly and eliminate where possible the current grade separation on the property resulting in a public realm that is visible and accessible from the street level. There has been great effort made to connect the pedestrian experience to the public realm with pass throughs between the towers and access to the POPS proposed. Mr. Smith opined that the Settlement Proposal conforms with the OP.
25Mr. Smith summarized the City’s Tall Building Design Guidelines (“TBDG”) and Growing Up Guidelines (“GUG”). In his opinion the Proposal is generally in accordance with the TBDG which include sections relating to site context, site organization, tall building massing and the pedestrian realm, but which have flexibility for larger floor plates for taller buildings. He qualified that his opinion stands despite the Settlement Proposal’s floor plates’ range from slightly larger to somewhat larger than the recommended limit of 750 m2, and taking into consideration that the Settlement Proposal exceeds the recommended minimum tower setback of 12.5 m and the recommended minimum tower separation of 25 m.
26With respect to the GUG which recommend a range of unit sizes, Mr. Smith opined that the Settlement Proposal is generally in keeping with the guidelines in the sense that the unit mix includes approximately 370 two-bedroom units representing 15 percent of the total unit count and 249 three-bedroom units representing 10 percent of the total unit count, both of which meet the GUG with respect to bedroom count.
27Mr. Smith advised the Tribunal that the Subject Property is currently subject to both ZBL 569-2013 and ZBL 7625. ZBL 569-2013 currently zones the Subject Property RA, Exception 7, (Residential Apartment) with the ravine lands zoned “ON” (Open Space – Natural). The RA zone permits apartment buildings, together with a limited range of institutional and commercial uses, among other uses. The Exception 7 provides that site-specific Zoning By-law 112-2016 (“ZBL 112-2016”) applies. ZBL 112-2016 amended ZBL 7625.
28ZBL 7625 zones the Subject Property, RM6(163)(H), with the exception of the ravine lands, which are zoned O1(36). The RM6(163)(H) zone provisions applying to the Subject Property were amended by ZBL 112- 2016. Permitted uses in the RM6(163)(H) zone include apartment house dwellings, a retirement residence and a hotel. The zoning permits three buildings on the property, being the northerly portion of the existing hotel to remain and two new residential towers of 30 and 36 storeys. The zoning caps the gross floor area at 72,900 m2 and permits a maximum of 700 residential units and a maximum of 353 hotel suites. A Holding provision (“H”) also applies, limiting the permitted uses to the uses and buildings that existed on the site as of November 10, 2015, until such time as the H is removed.
29Mr. Smith explained that the Holding provisions contained in the zoning would require the owner to make arrangements for managing ground water on the site and enter into a Discharge Agreement, if required, and to submit a site plan application and enter into a Site Plan Agreement as part of a redevelopment proposal. He proffered that the City no longer applies such conditions to rezoning applications.
30With the ZBA, the existing zoning is proposed to be replaced with two instruments specific to the Settlement Proposal, in order to amend both ZBL 569-2013 and ZBL 7625. Mr. Smith advised the Tribunal that the ZBA does not propose a Holding designation and that it is not being requested by the City.
31Mr. Smith advised the Tribunal that he has reviewed the Participant Statements filed in response to the ZBA. He has summarized the comments and concerns into eight issues which include: intensification, height, massing and built form, density, the public realm, community services and facilities, natural heritage, and public interest. Addressing each issue, Mr. Smith opined that:
the intensification proposed is supported by policy directions articulated in the PPS, the Growth Plan and the OP, all of which support intensification on sites, such as the Subject Property, which are served by municipal infrastructure including higher order transit;
the proposed building heights, ranging from 49 to 54 storeys, fit within the context of the existing high-rise neighbourhood, the buildings will be well separated from low-rise residential neighbourhoods and the site can accommodate the proposed building heights without any unacceptable built form impacts including shadow, views and privacy impacts;
the interplay of heights, tower floor plates and separation distances are appropriate and conform with OP massing and built form policies 3.1.3 and 3.1.4 and are generally in keeping with the intent of the TBDG;
the proposed net density (lands below top of slope excluded) of 10.3 floor space index is appropriate and desirable and is in keeping with the policy direction to optimize the use of the land and infrastructure, including the Wynford transit station;
the proposed regrading of the site, walk through podiums, and addition of the POPS will significantly improve the public realm and landscape approach making the site more integrated with its surroundings and more accessible for pedestrians through the site and down to Eglinton Avenue East;
the proposed on-site POPS and daycare and the proposed public elementary school on a nearby development site will help to deliver community services and facilities to the neighbourhood;
the proposed development will relocate the buildings further away from the natural heritage features on the site, including the existing building that encroaches into the long-term stable top of slope (“LTSTS”), resulting in an adjustment to the ON zoning boundary;
the proposal represents good planning and urban design and is in the broad public interest as it achieves planning objectives including transit supportive intensification, additional housing supply and improvements to the public realm without any unacceptable built form impacts.
32Addressing the two proposed draft ZBA instruments, Mr. Smith advised that the Appellant is seeking conditional approval for both instruments at this time but expects the amendment to ZBL 7625 may ultimately not be required by the City. In this regard, Mr. Smith explained that the proposed amendment to ZBL 569-2013 incorporates all the zoning provisions that would be required by the amendment to ZBL 7625 and proposes to rezone the Subject Property to a Commercial Residential zone, with an appropriate exception, which will permit the hotel, retail and residential uses. The instruments would also adjust the ON zoning boundary to follow the LTSTS.
33Mr. Smith concluded that the ZBA is appropriate and desirable from both a land use planning and urban design perspective. Mr. Smith opined that the ZBA and Settlement Proposal are consistent with the PPS, conform to the Growth Plan and conform to the OP. He recommended the Tribunal approve the ZBA subject to the two proposed conditions, the receipt of the final form of the draft zoning by-law(s) in a form acceptable to the City and receipt of confirmation that water, wastewater and storm water capacity is sufficient for the redevelopment of the Subject Lands.
ANALYSIS AND FINDINGS
34The Tribunal accepts the uncontroverted testimony and evidence of Mr. Smith.
35The Tribunal finds that the Settlement Proposal will fit harmoniously with the existing and planned built form context and will enhance the area by intensifying an underutilized site which is well served with municipal infrastructure.
36The Settlement Proposal will support the achievement of the PPS and Growth Plan policy directions promoting intensification within a built-up urban area and will be an efficient use of the land. The Settlement Proposal will result in a desirable mixed-use intensification project having convenient access to transit, recreation, cultural and community uses, restaurants, shopping and employment opportunities, while incorporating a hotel use on the site.
37The Tribunal accepts the submission of Mr. Smith that the Settlement Proposal will not create unacceptable built form impacts on nearby properties or the public realm noting the site is located within a high-rise context and is well separated from low-rise residential areas and other shadow-sensitive areas. Further, the Tribunal is satisfied that the Settlement Proposed will create a high-quality addition to the area, in keeping with the built form policies of the OP and the nodal development pattern emerging around the Eglinton-Crosstown LRT system.
38The Tribunal notes that a significant benefit of the Settlement Proposal is the change proposed in the relationship of the Subject Property to the surrounding public realm. The elimination of the retaining walls and significant grading separation between the surrounding street frontage and the public realm proposed through the POPS and pedestrian accessibility to the Subject Lands represents an admirable effort in the design to achieve the goals and objectives set out in the OP in respect to the built form and public realm policies.
39In consideration of the submissions of Mr. Smith and the revisions to the proposal resulting in the Settlement Proposal, the Tribunal is satisfied that the ZBA has had sufficient and proper regard for those matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the ZBA is consistent with the PPS, conforms to the policies of the Growth Plan, and conforms to the policies of the OP.
40The Tribunal approves the ZBA in principle subject to the conditions as recommended by Mr. Smith being, approval of the final form of the zoning by-law(s) to the satisfaction of the City Solicitor and Chief Planner, and confirmation of water, sanitary and storm water infrastructure capacity.
INTERIM ORDER
41THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, on an interim basis, contingent upon receipt of those pre-requisite matters identified in paragraph 42 below, and that the Zoning By-law Amendments set out in Attachments 1 and 2 to this Interim Order are hereby approved in principle.
42The Tribunal will withhold issuance of its Final Order contingent upon confirmation from the City Solicitor, of the following pre-requisite matters:
a. The Tribunal has received, and approved, the Zoning By-law Amendment(s) submitted in a final form, confirmed satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor and;
b. The Tribunal shall be in receipt of confirmation from the City Solicitor that the Owner has provided confirmation of water, sanitary and stormwater capacity to the Chief Engineer and Executive Director, Engineering and Construction Services.
43If the Parties do not submit the final draft of the Zoning By-law Amendment(s), and provide confirmation that the contingent pre-requisites to the issuance of the Final Order set out in paragraph 42 above have been satisfied, and do not request the issuance of the Final Order, by Friday, January 12, 2024, 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(s) and request for 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 that 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.
44The Panel will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment(s) and the issuance of the Final Order.
45The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument and the satisfaction of the contingent pre-requisites to the issuance of the Final Order.
“C. I. Molinari”
C. I. MOLINARI
MEMBER
“David Brown”
DAVID BROWN
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