Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 28, 2023
CASE NO(S).: OLT-22-003395
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Marine Lake Developments Limited
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a 59-storey mixed-use tower, including a 3-storey base building
Reference Number: 21 219268 WET 03 OZ
Property Address: 2189 Lake Shore Boulevard W
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-003395
OLT Lead Case No: OLT-22-003395
OLT Case Name: Marine Lake Developments Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Marine Lake Developments Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a 59-storey mixed-use tower, including a 3-storey base building
Reference Number: 21 219268 WET 03 OZ
Property Address: 2189 Lake Shore Boulevard W
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-003396
OLT Lead Case No: OLT-22-003395
Heard: May 23, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Marine Lake Developments Limited
Matthew Lakatos
City of Toronto
Abbie Moscovich Cameron McKeich
MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST AND DAVID BROWN ON MAY 23, 2023 AND INTERIM ORDER OF THE TRIBUNAL
Link to Final Order
1The matter before the Tribunal concerns two appeals filed by Marine Lake Developments Limited (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”) against the City of Toronto (“City”) for its failure to make a decision on an application for an Official Plan Amendment (“OPA”) and an application for a Zoning By-law Amendment (“ZBA”) (collectively the “Applications”) within the prescribed timeframes as set out in the Act. The lands that are the subject of the appeals are known municipally as 2189 Lake Shore Boulevard West (the “Subject Property”).
2The Applications will facilitate the redevelopment of the Subject Property with a mixed-use, tall building including retail floor space along the Lake Shore Boulevard West frontage. The OPA proposes to designate the Subject Property as Mixed-Use Area 'A' within the Motel Strip Secondary Plan (“MSSP”) and to add site-specific policies to permit the proposed uses, height, and density. The ZBA proposes to rezone the Subject Lands to Mixed Use (MU) which will permit the residential use, the proposed height and address the specific performance standards required for the proposed building.
3The Subject Property is located at the southeast corner of Lake Shore Boulevard West and Marine Parade Drive with a frontage of 40.3 metres (“m”) along Lake Shore Boulevard West and a frontage of 46.9 m along Marine Parade Drive. The Subject Property has an area of 2,735 square meters (“m2”) and is currently occupied with an automobile service station including a car wash and convenience store. Toronto Transit Commission (“TTC”) Streetcar Routes 501 and 508 pass in front of the Subject Property on Lake Shore Boulevard West and there are three TTC bus routes with service stops within walking distance of the Subject Property. The Mimico GO Train station is 1.4 kilometres from the Subject Property and the planned Park Lawn GO Train station is proposed on the former Christie Bakery lands located on the north side of Lake Shore Boulevard West, opposite the Subject Property.
4The area surrounding the Subject Property is referred to as Humber Bay Shores and was formerly known as the Motel Strip. The redevelopment pressures in the area resulted in the approval of the MSSP which was premised on the restriction to non-residential uses to ensure compatibility with the Christie Brown bakery operation at the northeast corner of Park Lawn Road and Lake Shore Boulevard West. With the closure of the bakery operation, the Humber Bay Shores area has experienced many redevelopments of high-rise mixed-use residential buildings.
5To the south of the Subject Property is a vacant parcel of land owned by the Toronto and Region Conservation Authority and to the east is a recently completed two-tower mixed-use development on a six-storey podium and a four-storey office building fronting on Lake Shore Boulevard West. West of the Subject Property, across Marine Parade Drive, is a TTC bus loop and the Humber Bay Park East. Diagonally opposite the Subject Property at the northwest corner of Park Lawn Road and Lake Shore Boulevard West is a four-tower mixed-use development known as Westlake Village. Opposite the Subject Property on the north side of Lake Shore Boulevard West is the former Christie Brown bakery site and a free-standing bank building. The Christie Brown bakery lands were the subject of a recent consideration by City Council with the adoption of Official Plan Amendment No. 506 creating the Christie’s Secondary Plan, deleting Site and Area Specific Policy 15 and redesignating the Christie Bakery lands to a combination of Mixed Use Areas, General Employment Areas, Parks, Utility Corridors, and Natural Areas to facilitate the development of a new mixed-use, transit-oriented community that includes a mix of mid-rise and tall buildings with a total of 15 new mixed-use towers ranging in heights from 28 to 67 storeys, the new Park Lawn GO Train station, and two new public parks.
6The Appellant filed the Applications with the City on September 17, 2021, and the City deemed the Applications complete on October 12, 2021. On April 7, 2021, the Appellant filed their appeals with the City in accordance with the provisions of the Act. A Statutory Public Meeting was held on April 19, 2022. A revised submission was filed with the City on January 20, 2023, and after entering into settlement discussions with the City, the Appellant filed a further revision on May 10, 2023. The revised submission included a set of Architectural Plans prepared by Wallman Architects with a reference Project no. 21-04 2189 and having a revision date of April 5, 2023, which form the basis for the Settlement being presented to the Tribunal (the “Settlement Plans”).
7The Settlement Plans describe a 51-storey tower on a four-storey podium having a gross floor area of 42,636.6 m2 including 600 m2 of retail floor space along the Lake Shore Boulevard West frontage of the building. The building proposes 676 residential units of which 10% will be three-bedroom units, 27% will be two-bedroom units, and 59% will be one-bedroom units with the balance being studio units. A total of 193 vehicle parking spaces is proposed together with 569 bicycle parking spaces and the proposed building will have an FSI of 15.6.
8The Settlement Plans detail the proposed setbacks at grade and a series of step-backs at the upper floors which provide for terraces, balconies and outdoor amenity spaces. Loading and vehicular access on Marine Parade Drive at the southwest corner of the Subject Lands. Amenity space is provided at a combined indoor and outdoor rate of 4.0 m2. A large outdoor terrace is proposed on the third floor at the southeast corner.
9The City attended the hearing indicating its support of the proposed settlement.
LEGISLATIVE FRAMEWORK
10When considering an appeal of an application to amend an official plan filed pursuant to s. 22 of the Act and 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 A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, as amended (2020) (“Growth Plan”). The Tribunal must also be satisfied that the ZBA conforms with the official plan(s) in effect.
11In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the OPA and ZBA represent good planning and are in the public interest.
EVIDENCE AND SUBMISSIONS
12The Tribunal, on consent, qualified Ashley Paton, a Registered Professional Planner, to provide opinion evidence as an expert in land use planning. Ms. Paton provided an Affidavit sworn on May 19, 2023, in support of the Settlement Proposal and approval of the OPA and ZBA (Exhibit 1).
13Ms. Paton reviewed the Settlement Plans, included in Exhibit C in Tribunal Exhibit 1, detailing the proposed setbacks and step-backs for the proposed building. She explained that modifications to the overall height, shape and location of the mechanical penthouse, tower floor plate size and orientation, and sculpting of the tower were incorporated into the Settlement Plans to reduce shadow impacts on a proposed public park on the former Christie bakery lands northwest of the Subject Property.
14Ms. Paton explained that the Settlement Proposal supports the redesignation of the Subject Lands from Mixed Use Area B in the MSSP to Mixed Use Area A with a site-specific provision to permit the proposed density. The Settlement Proposal will also support the rezoning of the Subject Property including amending the Etobicoke Zoning Code(“EZC”), as amended by By-law No. 1994-197, to permit residential uses, increased height and density and revised performance standards. An amendment to City Wide Zoning By-law No. 569-2016 (“ZBL”) is also proposed to include the Subject Property in the ZBL and include a site-specific exception to permit increased height, increased gross floor area and site-specific performance standards. The Settlement Proposal will also require that the amending zoning by-laws include an “H” Holding symbol to be removed by the City upon the Appellant providing an acceptable Functional Servicing Report and an acceptable agreement for the construction and upgrade of sanitary sewer services including the required Environmental Compliance Approvals from the Ministry of Environment, Conservation and Parks.
15The terms of the Settlement Proposal include requesting the Tribunal withhold issuance of its final order until the Appellant has provided confirmation to the City that the OPA and ZBA are in a final form acceptable to the City and that the Appellant has provided an acceptable Construction Dewatering Plan and Functional Servicing Report, a Pedestrian Wind Study, and a Transportation Impact Study.
Planning Evidence
16Ms. Paton reviewed the matters of provincial interest as set out in s. 2 of the Act and specifically subsections (e) through (s). Ms. Paton opined that the Settlement Proposal has appropriate regard for these matters.
17In consideration of the PPS, Ms. Paton reviewed the policies relating to residential intensification, the efficient use of land and infrastructure, the promotion of transit-supportive development, encouraging an increase in the mix and supply of housing, protecting the environment and public safety, reducing barriers and costs for development, and supporting the economy and job creation. She opined that the Settlement Proposal is consistent with PPS as the resultant development will contribute to the supply of a range and mix of housing options in a transit-supportive, compact urban form within an existing settlement area and in an area well-served by existing and planned public transit infrastructure including the planned Park Lawn GO Train station.
18Ms. Paton reviewed the applicable policies of the Growth Plan proffering that the Subject Property is an underutilized parcel of land that is well served by municipal services and transit. The Subject Lands are approximately 390 m from the planned Park Lawn GO Train station which is located on the Lakeshore West GO rail line, a “priority transit corridor” identified in the Growth Plan. The Subject Property is located on the TTC 501 Streetcar Route and thus is served by frequent transit service as defined in the Growth Plan and is located within a “Strategic Growth Area”. Ms. Paton advised that the City adopted Official Plan Amendment 570 which defines the boundaries of the Park Lawn Protected Major Transit Station Area (“PMTSA”) that includes the Subject Property. Ms. Paton opined that the Growth Plan directs within an MTSA, development shall be transit-supportive and accommodate intensification and higher density mixed uses in a compact built form. Ms. Paton opined that the Settlement Proposal conforms with the policies of the Growth Plan.
19Ms. Paton reviewed the City Official Plan (“OP”) and testified that the Subject Property is subject to the Avenue policies and is designated Mixed Use Areas in the OP Land Use Map.
20Ms. Paton referred to Policy 2.2 (2) of the OP and specifically the following excerpts:
Growth will be directed to the... Avenues... as shown on map 2 in order to:
a) use municipal land, infrastructure and services efficiently;
b) concentrate jobs in people in areas well served by surface transit and rapid transit stations;
e) offer opportunities for people of all means to be affordably housed;
f) facilitate social interaction, public safety and cultural and economic activity;
g) improve air quality, energy efficiency and reduce greenhouse gas emissions; and
i) protect neighbourhoods, green spaces, and natural heritage features and functions from the effects of nearby development.
21Further, Ms. Payton directed the Tribunal to the explanatory text in Section 2.2.3 [“Avenues: Reurbanizing Arterial Corridors”] which states:
The Avenues are important corridors along major streets where reurbanization is anticipated and encouraged to create new housing and job opportunities while improving the pedestrian environment, the look of the street, shopping opportunities and transit service for community residents.
22Ms. Paton referenced Policy 2.2.3(1) which details that reurbanization of Avenues will be achieved through the preparation of Avenue Studies. She noted that the OP specifically states that there is no “one-size-fits-all” program for reurbanizing the Avenues. In light of the foregoing, Ms. Payton proffered that City Planning undertook a study for portions of the MSSP area including the lands fronting on Lake Shore Boulevard West. The result of the study was the adoption of the Humber Bay Shores Urban Design Guidelines and Public Realm Plan (“HBSUDG”).
23The Mixed Use Areas designation permits a broad range of commercial, residential, and institutional uses in single or mixed-use buildings, as well as parks and open spaces. Ms. Paton opined that the OP envisions that redevelopment in Mixed Use Areas will create a balance of high-quality commercial, residential, institutional, and open space uses that reduce automobile dependency and meets the needs of the local community and will provide for new jobs and homes for the City's growing population on underutilized lands. She proffered that the Settlement Proposal will achieve these objectives.
24Ms. Paton directed the Tribunal to Policy 4.5.2 in the OP which sets out several criteria for development for Mixed Use Areas and specifically directed the Tribunal to the following which state that Mixed Use Areas development will:
c) locate and mass new buildings to provide a transition between areas of different development intensity and scale…;
d) locate and mass new buildings so as to adequately limit shadow impacts on adjacent Neighbourhoods, particularly during the spring and fall equinoxes;
e) locate and mass new buildings to frame the edges of streets and parks with good proportion and maintain sunlight and comfortable wind conditions for pedestrians on adjacent streets, parks and open spaces;
f) provide an attractive, comfortable and safe pedestrian environment;
h) take advantage of nearby transit services;
i) provide good site access and circulation and an adequate supply of parking for residents and visitors;
j) locate and screen service areas, ramps and garbage storage to minimize the impact on adjacent streets and residences; and
k) provide indoor and outdoor recreation space for building residents...
25Ms. Paton then reviewed the Policies contained in Chapter 3 of the OP that address the Public Realm, Built Form, Building Typology, and Housing. Ms. Paton proffered that the Public Realm policies contained in Section 3.1.1 include incorporating a complete streets approach by improving the quality and convenience of active transportation options and designing sidewalks and boulevards to provide safe, attractive, and comfortable spaces for all users by providing well-designed and coordinated landscaping and setbacks. The Built Form policies in Section 3.1.3 speak to the relationship of the location and organization of development ensuring that the proposed development fits harmoniously within its context. Ms. Paton proffered that the Settlement Proposal will provide appropriate setbacks to the public realm, tower setbacks that comply with the policies, and a vehicle and service access on Marine Parade Drive well removed from the intersection of Lake Shore Boulevard West. The development will include step-backs above the street wall to frame the street and create a comfortable public realm and provide a good transition in scale.
26Ms. Paton opined that the Settlement Proposal will promote civic life and provide amenities for pedestrians in the public realm to make areas adjacent to streets and open spaces attractive, interesting, comfortable, and functional.
27Ms. Paton reviewed Section 3.1.4 policies which address building typology, specifically Tall Buildings. Policy 8 sets out that Tall Buildings should typically be designed to consist of three parts, a base, a tower, and a top. The Settlement Plans describe a four-storey podium (base) along Lake Shore Boulevard West consistent with the development immediately adjacent to the east, a tower portion having a floor plate that allows appropriate setbacks to achieve privacy, allow sunlight and open views, limits shadow impact on the public realm, and a top that incorporates the mechanical penthouse into the design.
28Turning to the MSSP, Ms. Paton explained that the OPA will amend the MSSP to designate the Subject Property as Mixed Use Area A which permits residential uses and to create a Site Area Specific Policy to permit the proposed density. She explained that with the redesignation of the Christie bakery lands there is no longer a need to create a buffer around the lands as was the intent and purpose of the Mixed Use Area B designation that currently applies to the Subject Property.
29Ms. Paton opined that the proposed amendments are appropriate and the Settlement Proposal will conform with the applicable policies in the MSSP Mixed Use Area A designation. The proposed density is in keeping with recent developments and approvals in the area.
30The Tall Building Design Guidelines (“TBDG”) in the OP establishes guidelines addressing site context, site organization, building design, and the pedestrian realm for the development of tall buildings across the City. Ms. Paton proffered that the Settlement Proposal will meet and exceed the tower setbacks and the floor plates have been sculpted to maximize sunlight and minimize shadow impacts.
31Ms. Paton reviewed the HBSUDG which establishes guidelines to create vibrant pedestrian-oriented streetscapes and support diverse building forms and activities and ensure access to sunlight and sky views. Ms. Paton opined that the Settlement Proposal achieves the intent of HBSUDG as it will provide for active ground floor retail uses along Lake Shore Boulevard West, and the proposed setbacks at the ground floor will contribute to increased pedestrian activity and improvements in the public realm.
32Ms. Paton concluded by opining that the Settlement Proposal as described in the Settlement Plans and as facilitated by the Applications conforms to the policies of the OP as set out above and generally conforms to the policies of the proposed amended MSSP designation and the site-specific amendment will address the proposed height and density. Ms. Paton further opined that the Settlement Plans will implement the guidelines as set out in the TBDG and the HBSUDG.
33The Subject Property is currently zoned CL-H (Limited Commercial) with an “H” holding symbol under the EZC. Ms. Paton explained that the ZBA proposes to amend the EZC to permit residential uses and increase the permitted height and density. The Subject Property is not included in the lands that are subject to the provisions of the ZBL and the ZBA proposes to amend the ZBL to include the Subject Property. Further, the ZBA will include a site-specific exception to facilitate the Settlement Proposal and it is proposed to include a Holding provision to address servicing issues related to the proposed development on the Subject Property.
34Ms. Paton opined that the ZBA required to implement the Settlement Proposal will conform to the OPA and the OP will facilitate the orderly development of the Subject Property and represents good planning.
35In conclusion, Ms. Paton proffered that the Subject Property is an underutilized site located within an MTSA and is currently well-served by public transit. She opined that optimizing density in an area that is well served by both existing and planned transit infrastructure is in the public interest. The Settlement Proposal is contextually appropriate for a tall building and will prioritize pedestrian activity through increased building setbacks on the ground floor, will limit shadow impacts on the public realm and is a built form that will fit harmoniously with the existing and planned context of the Subject Property.
36Ms. Paton recommended that the Tribunal allow the appeals, approve the OPA and ZBA as set out in the Settlement Proposal to facilitate the proposed development as described in the Settlement Plans and withhold issuance of its final order until such time as the conditions requested by the City have been fulfilled.
ANALYSIS AND FINDINGS
37Having considered the uncontroverted testimony of Ms. Paton and her Affidavit in support of the Settlement Proposal and having reviewed the Settlement Plans, the Tribunal finds that the Settlement Proposal will facilitate the redevelopment of an underutilized parcel of land and the proposal represents an appropriate optimization of the lands and public infrastructure, in particular the existing and planned public transit infrastructure.
38The Tribunal finds that the Settlement Proposal is consistent with the PPS as it seeks to sustain a healthy, liveable, and safe community through the promotion of the integration of land use planning, growth management, transit-supportive development, intensification, and infrastructure planning to achieve cost-effective development patterns that optimize transit investments and implement standards to minimize land consumption and servicing costs.
39The Tribunal, in consideration of the Growth Plan, finds that the Settlement Proposal conforms to the policies of the Growth Plan. The Settlement Proposal is located in a strategic growth area with access to existing and planned higher-order transit and public service facilities. The Settlement Proposal will optimize infrastructure investment and in particular transit infrastructure supporting the MTSA and support the achievement of complete communities with a compact built form.
40In consideration of the OP, the Tribunal finds that the Settlement Proposal is an appropriate reurbanization as contemplated in the Avenues policies. The Settlement Proposal represents a high-quality mixed-use development that reduces automobile dependency meets the needs of the local community and provides new job opportunities and homes for the City’s growing population on underutilized lands as envisioned in the Mixed Use Areas policies. The Built Form policies and Public Realm policies are appropriately implemented in the Settlement Proposal and the Tribunal is satisfied that the TBDG have been incorporated and applied in the Settlement Plans.
41The Tribunal has considered the MSSP and the HBSUDG and finds that the proposed OPA conforms with the OP and is consistent with the evolving context of the lands that are subject to the MSSP. The site-specific policies contemplated to address the proposed height and density are appropriate to optimize the transit infrastructure investments and support the MTSA.
42The Tribunal finds that the ZBA proposed to facilitate the development as described in the Settlement Plans and implement the corresponding OPA conforms with the OP and the proposed amendments to the MSSP.
43The Tribunal has considered the matters of provincial interest as set out in s. 2 of the Act and is satisfied that the approval of the OPA and the ZBA will have regard for such matters including being an appropriate location for growth, promoting a design that supports public transit, is a well-designed built form, and mitigates greenhouse gas emissions with the reduction of reliance on the automobile.
44In consideration of the above, the Tribunal is satisfied that the Settlement Proposal and the requisite OPA and ZBA represent good planning and are in the public interest.
45The Tribunal allows the appeals and approves the OPA and ZBA in principle in accordance with the Settlement Proposal and the Settlement Plans found in Exhibit C to the Tribunal's Exhibit 1. The Tribunal will withhold issuance of its final order subject to being provided with and approving the OPA and ZBA instruments in their final form as confirmed acceptable by the City and on the conditions requested by the City arising from the Settlement Proposal.
INTERIM ORDER
46THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, on an interim basis, and that the proposed Official Plan Amendment and Zoning By-law Amendments to reflect the Settlement Proposal as described in the Settlement Plans included in Exhibit C of the Tribunal’s Exhibit 1 (for greater clarity the Settlement Plans are the Architectural Plans prepared by Wallman Architects, Project no. 21-04 2189 and having a revision date of April 5, 2023), are hereby approved in principle.
47AND THAT the Tribunal will withhold issuance of its Final Order contingent upon confirmation from the City Solicitor, of the following pre-requisite matters:
The Tribunal has received, and approved, the Official Plan Amendment and 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
The Tribunal shall be in receipt of confirmation from the City Solicitor that the Owner has provided:
i. A Construction Dewatering Plan and Functional Servicing Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.
ii. A Pedestrian Wind Study to the satisfaction of the Chief Planner, and Executive Director, City Planning; and
iii. A Transportation Impact Study to the satisfaction of the Executive Director, Transportation Services and Chief Planner and Executive Director, City Planning.
48If 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 47 above have been satisfied, and do not request the issuance of the Final Order, by Friday, February 23, 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.
49The Panel will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment(s) and the Zoning By-law Amendment(s) and the issuance of the Final Order.
50The 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.
“W. Daniel Best”
W. DANIEL BEST
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.