Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 26, 2023
CASE NO(S).: OLT-22-002490
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Augend Investments Ltd.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a new 24-storey residential building
Reference Number: 21 177893 STE 12 OZ
Property Address: 438-440 Avenue Road & 169-171B Balmoral Avenue
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-002490
OLT Lead Case No.: OLT-22-002490
OLT Case Name: Augend Investments Ltd. 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: Augend Investments Ltd.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a new 24-storey residential building
Reference Number: 21 177893 STE 12 OZ
Property Address: 438-440 Avenue Road & 169-171B Balmoral Avenue
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-002491
OLT Lead Case No.: OLT-22-002490
Heard: May 18, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Augend Investments Ltd. (“Appellant”) | J. Park |
| City of Toronto (“City”) | U. Gautam, J. Braun (in absentia) |
| Toronto Lands Corporation as Agent for the Toronto District School Board (“Board”) | J. Lesage (in absentia) |
| Balmoral and Avenue Neighbourhood Alliance, Ltd. (“BANA”) | R. Kehar |
| Anne Lawson and Paul Brehl | I. Flett |
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON MAY 18, 2023 AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1The first Case Management Conference (“CMC”) in this proceeding was conducted by videoconference on June 28, 2022 (“CMC”). At that time, the merits hearing was scheduled to commence on May 15, 2023 for a period of 15 days. However, prior to that date in May, 2023, the Parties advised the Tribunal that they had reached a settlement and requested that all hearing days be released except for May 18, 2023 which they proposed to be convened as a settlement hearing and the Tribunal agreed to do so.
2This matter concerns the appeal by the Appellant of the City’s failure to make a decision on the Appellant’s application for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to permit a new 24-storey residential building (“Development”) at the address municipally known as 438-440 Avenue Road and 169-171B Balmoral Avenue in the City (“Subject Site”).
3Counsel for the Appellant tendered the following materials for this settlement hearing:
(a) The Affidavit of Michael Goldberg, sworn May 12, 2023, comprising 109 pages inclusive of its exhibits;
(b) A Joint Document Book in two volumes, the first comprising 1316 pages, and the second comprising 615 pages; and
(c) The Visual Evidence Book, comprising 9 pages.
4Counsel for the Board advised the Tribunal prior to this hearing event that her client was in full agreement with the settlement and further that she was instructed not to attend as result. Counsel for all other Parties advised that they consent to the proposal except counsel for BANA, who instead advised the Tribunal that his clients do not oppose it.
EVIDENCE / ANALYSIS / CONCLUSIONS
5Counsel for the Appellant, with the consent of all Parties’ counsel, called Mr. Goldberg to provide evidence in support of the proposed settlement. Mr. Goldberg is a highly experienced urban planner who was qualified by the Tribunal to provide opinion evidence on land use planning matters in this proceeding.
6In his oral evidence, Mr. Goldberg reviewed the Visual Evidence Book and referred to many of the documents set out in the two volumes of the Joint Evidence Book. In his Affidavit and in his oral testimony, he opined as follows:
(a) He was retained in November 2019 by the Appellants to assess, from a land use perspective, proposed Official Plan Amendment (OPA), Zoning By-law Amendment (ZBA) and Site Plan Approval (SPA) applications for the lands municipally known as 438-440 Avenue Road and 169, 171A and 171B Balmoral Avenue (“Subject Site”), in the City;
(b) The subject site occupies the southwest quadrant of Avenue Road and Balmoral Avenue and is municipally known as 438-440 Avenue Road and 169, 171A and 171B Balmoral Avenue. The subject site is an assembly of five properties, including two which front onto Avenue Road and three which front onto Balmoral Avenue. The subject site is legally described as all of Lots 13 and 14 and part of Lot 12 and 15, Registered Plan 826;
(c) The subject site includes the following buildings:
438 Avenue Road - A 3-storey single detached dwelling, including an integral below grade garage with driveway access from Avenue Road;
440 Avenue Road - A 3-storey single detached dwelling with a rear attached garage and driveway access from Balmoral Avenue;
169 Balmoral Avenue - A 2-storey single detached dwelling with a rear detached garage and driveway access from Balmoral Avenue;
171A Balmoral Avenue - A 3-storey single detached dwelling with a front facing integral garage and driveway access from Balmoral Avenue; and
171B Balmoral Avenue - A 3-storey single detached dwelling with a front facing integral garage and driveway access from Balmoral Avenue;
(d) The existing buildings contain a total of 10 rental dwelling units, which consists of one bachelor unit, two one-bedroom units, three two-bedroom units, one three-bedroom unit, and three four-bedroom units. The existing 10 rental units will be replaced either on site, or off site. Discussions with the City remain ongoing at this time concerning the agreed upon manner in which to implement replacement rental housing;
(e) The application under appeal has regard for all applicable matters under Section 2 of the Planning Act, R.S.O. 1990 c. P.13 (“PA”);
(f) The proposed development represents intensification of an assembly of underutilized single detached residential lots. Development of the subject site for a tall residential building will be an efficient use of land, with a denser and more compact urban form that will cost-effectively utilize existing infrastructure and community facilities, and therefore is consistent with all applicable provisions of the Provincial Policy Statement, 2020 (“PPS”);
(g) By definition, the development represents Intensification within a Strategic Growth Area which, according to Section 7 of the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”), is a defined term, and this proposal conforms to all relevant provisions of the Growth Plan;
(h) Under the existing zoning regime, the subject site would result in an under-utilization of the subject site, from built form and housing perspectives. By contrast, the redevelopment proposal for the subject site includes optimizing the height and density of this location. The redevelopment proposal is a contemporary expression of Provincial policy that would enable the realization of intensification and contribute to the ‘complete communities’ policy priorities of the PPS and the Growth Plan;
(i) The proposed development satisfies the policies of the City OP for the many reasons set out above. In consideration of the existing and planned context of the surrounding area, its land use designations, and proximity to higher order transit and frequent transit, the proposal is an appropriate fit for this corridor location. The existing zoning inappropriately limits the intensification potential of the subject site, which zoning does not implement, nor is in conformity with, Provincial and City OP policies. The proposed OPA and ZBA for the redevelopment provide for a built form which is more appropriate for this site and its context. The proposed redevelopment is in conformity with the policies of the City OP as proposed to be amended by the OPA; and.
(j) From a local planning perspective, the redevelopment proposal, implements and satisfies the applicable Healthy Neighbourhoods, Apartment Neighbourhood, Housing, Public Realm, Built Form and Implementation provisions and policies of the City OP. It has been demonstrated that the subject site can appropriately, and in a compatible manner, accommodate the height and density proposed, similar to other tall apartment building forms along the Avenue Road and St. Clair Avenue West corridors, which corridors are also adjacent to low-rise Neighbourhoods areas.
7Based on its review of the written and oral evidence of Mr. Goldberg and of the materials submitted for this settlement hearing, as described in paragraph [3] above, the Tribunal is satisfied that the consent settlement is fair and reasonable and that it; satisfies all requirements under Section 2 of the Planning Act; is consistent with the terms of the PPS; conforms to the applicable provisions of the Growth Plan and the City’s Official Plan and all of its subordinate policies; and represents good planning.
IMTERIM ORDER
8THE TRIBUNAL ORDERS THAT the appeal is allowed, on an interim basis, contingent upon confirmation and satisfaction of those pre-requisite matters identified in paragraph [9] below.
9The Tribunal Orders that the Official Plan Amendment (“OPA”) appended to this Order as Attachment 1 and the Zoning Bylaw Amendment amending the City-wide Zoning By-law 569-2013 (“ZBA1”) appended as Attachment 2 and the Zoning Bylaw Amendment amending the former City of Toronto Zoning By-law 438-86 (“ZBA2”) appended as Attachment 3 are approved in principle subject to the following prerequisite conditions:
(a) the final form and content of the draft OPA, ZBA1 and ZBA2 are satisfactory to the City Solicitor, and the Chief Planner and Executive Director, City Planning Division;
(b) the Appellant has provided a Functional Servicing Report and Stormwater Management Report, including the Foundation Drainage Report satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services, and the General Manager, Toronto Water;
(c) the Appellant, at its sole expense, has designed and provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing Report and Stormwater Management Report, including the Foundation Drainage Report, 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, should they determine that improvements or upgrades are required to support the development reflected in the OPA, ZBA1 and ZBA2; and
(d) the Appellant has revised its wind study for the proposed development in accordance with the City's terms of reference for wind studies to the satisfaction of the Chief Planner and Executive Director, City Planning.
10The Tribunal will withhold the issuance of its Final Order approving the OPA and ZBA1 and ZBA2 contingent upon confirmation by the counsel for the City and for the Appellant of the pre-requisite conditions described above in paragraph [9].
11The Panel Member will remain seized in the event that the Parties require assistance with the implementation of these Interim Orders and with respect to the issuance of the Final Order.
12If the Parties do not provide confirmation that all contingent pre-requisites to the issuance of the Final Order set out in paragraph [9] and paragraph [10] above have been satisfied, and do not request the issuance of the Final Order by Thursday, November 30 2023, then the Parties shall provide a written status report to the Tribunal as to the timing of the expected confirmation and issuance. In the event the Tribunal fails to receive the required status report by December 1, 2023, and/or in the event that the contingent pre-requisites are not satisfied within ninety days thereafter, or by such other deadline as the Tribunal may impose, then the Tribunal may then dismiss this Appeal.
13The Tribunal may, as necessary, arrange a further hearing event to determine any matters arising from the Interim Orders, the satisfaction of the contingent pre-requisites and the issuance of the Final Order, and to deal with any other matters relating to the implementation of the Interim Orders made herein.
“William R. Middleton”
WILLIAM R. MIDDLETON
VICE-CHAIR
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
Attachment 3