Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 27, 2023

CASE NO(S).: OLT-22-004049

PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: NJS Developments Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: to permit a 348-unit residential apartment building

Reference Number: OP.21.023

Property Address: 3836-3850 Major Mackenzie Drive W

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-004049

OLT Lead Case No: OLT-22-004049

OLT Case Name: NJS Developments Inc. v. Vaughan (City.)

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: to permit a 348-unit residential apartment building

Reference Number: Z.21.047

Property Address: 3836-3850 Major Mackenzie Drive W

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-004050

OLT Lead Case No: OLT-22-004049

Heard: June 6, 2023 by video hearing

APPEARANCES:

Parties

Counsel

NJS Developments Inc.

Steven Ferri

City of Vaughan

Marc Kemerer Candace Tashos

Regional Municipality of York

Bola Ogunmefun

G Group Major Mackenzie Inc.

Matthew Helfand Andrea Skinner (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI AND S. deBOER ON JUNE 6, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This matter involves an appeal filed by NJS Developments Inc. (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act (“Act”) against the City of Vaughan’s (“City”) failure to make a decision within the statutory time frame regarding the Appellants’ Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (“Applications”) for the property municipally known as 3836 and 3850 Major Mackenzie Drive West (“Major Mackenzie”) (“Subject Property”).

2The Applications, as revised, propose to amend the City Official Plan 2010 (“COP”), the City Zoning By-law No. 1-88, as amended (“ZBL 1-88”), and the new comprehensive City Zoning By-law No. 001-2021, as amended (“ZBL 1-21”), to facilitate the development of a tiered 4 to 12-storey residential apartment building with a total of 367 units.

3The Subject Property is currently vacant and has an area of approximately 8,884 square metres (“sq m”) with a frontage of approximately 90 metres on Major Mackenzie. The site is bounded by Major Mackenzie to the south, Sydney Circle to the west, Sandwell Street to the north, and a planned future public road to the east (“Sunset Terrace”).

4The surrounding neighbourhood is characterized by existing and future planned higher-intensity built forms including three-storey townhouses to the west and north, an approved 19-storey high-rise mixed-use building owned by G Group Major Mackenzie Inc. to the east. To the south side of Major Mackenzie is a three-storey mixed-use building and a Ministry of Transportation maintenance yard. The site is served with public transit along two major regional corridors, those being Major Mackenzie and Weston Road to the east.

5The Applications were filed with the City on December 7, 2021, and deemed complete as of December 23, 2021. The Appellant filed a revised submission on November 4, 2022, in response to feedback received through the review of the original proposal to address issues related to built-form, massing, site access, indoor amenity space, and public realm design. The revisions included an increase in the number of units from 348 to 367, and a decrease in the total gross floor area from 30,315 sq m to 28,463 sq m.

6Subsequent to the appeal of the Applications, the City endorsed the approval of the revised Applications subject to modifications to the building design and the inclusion of a Holding Symbol (“H”). Following discussions between the Parties, final revised OPA and ZBAs were agreed to between the Parties.

7The Tribunal received correspondence from the Appellant in advance of the hearing advising that the Parties had settled the issues and requesting that the Tribunal convert the proceedings to a settlement hearing.

8In 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.

LEGISLATIVE FRAMEWORK

9When considering appeals filed pursuant to s. 22(7) and 34(11) of the Planning Act, the Tribunal must have regard to the matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Applications conform with the Region of York (“Region”) Official Plan (“ROP”), the COP and both of the City Zoning By-laws.

10In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Applications represent good planning and are in the public interest.

SUBMISSIONS

11Prior to the commencement of the hearing, the Tribunal received the Affidavit of Ryan Mino-Leahan in support of the settlement. At the hearing, the Parties presented Mr. Mino-Leahan as a professional land use planner and requested the Tribunal qualify him to give expert opinion evidence in oral testimony along with his Affidavit concerning the settlement. The Tribunal qualified Ryan Mino-Leahan on consent to provide expert opinion evidence in the area of land use planning pertaining to this matter.

12Mr. Mino-Leahan provided background information on the Subject Property, the surrounding area as well as the history and processing of the Applications.

The Applications

13Mr. Mino-Leahan advised the Tribunal that the OPA proposes to redesignate the Subject Property from Low-Rise Mixed-Use and Low-Rise Residential to Mid-Rise Residential, and includes other site-specific provisions to increase the maximum floor space index (“FSI”) from 1.5 times the area of the site to 3.25 times the net developable area, and to permit an increase in the maximum building height from four storeys to 12 storeys.

14Mr. Mino-Leahan described the proposed site-specific ZBAs in his Affidavit as providing the required permissions for the development of the site with a tiered four to 12-storey residential apartment building with a total of 367 residential dwelling units and with a FSI of 3.25 times the net developable area of the Subject Property. The building will be ‘C-shaped’ fronting directly on existing and future public roads to the north, east and south. Building height and massing is focused at the southeast corner with terracing in height down to four storeys towards the north and to six storeys towards the west, providing a reduction in scale and massing towards surrounding residential uses. The proposed building will be served by an at-grade amenity area within the central and western portions of the site as well as on the roof at the fifth level at the north end of the building. Access to the at-grade parking and loading areas and the ramp to the two-level underground parking garage will be provided from a private driveway accessing Sunset Terrace. The Proposed Development will provide 418 parking spaces of which 11 are accessible as well as 228 short-term and long-term bicycle parking spaces.

15Mr. Mino-Leahan explained that the Holding provisions contained in the ZBAs would require the following conditions to be fulfilled by the Appellant prior to removal:

a) a Functional Servicing and Stormwater Management Report to be submitted to the satisfaction of the City, and an Agreement to be entered into with the City in the event infrastructure improvements are required external to the Subject Property;

b) a peer review of the Noise Study to the satisfaction of the City, and the payment of a surcharge fee if required;

c) the submission of the Phase Two Environmental Site Assessment and a Reliance Letter to the satisfaction of the City;

d) the submission of a revised Transportation Mobility Plan to the satisfaction of the City;

e) the Sunset Terrace extension to be either constructed or for the Appellant to demonstrate through a comprehensive Transportation Impact Study, to the satisfaction of the City, that an alternate interim roadway for the extension can be achieved and for the Appellant to identify and secure any necessary lands to facilitate the interim solution; and

f) an amending Subdivision Agreement to be executed and registered on title.

16Mr. Mino-Leahan reviewed the particulars related to the need for two ZBAs, one to amend ZBL 1-88 and one to amend ZBL 1-21, explaining the timing of the adoption by the City of ZBL 1-21 and subsequent appeal and approval by the Tribunal, relative to the date of submission of the Applications. Mr. Mino-Leahan advised that, as the Applications were processed prior to the Tribunal issuing its order related to ZBL 1-21, the transition provisions of ZBL 1-21 do not apply and the Applications were subject to a dual review under both ZBL 1-88 and ZBL 1-21. Accordingly, both ZBAs are required in order to facilitate the review by the City of the associated Site Development Application under either ZBA.

17As described by Mr. Mino-Leahan, the ZBA to amend ZBL 1-88 proposes to rezone the Subject Property from a site-specific ‘RR Rural Residential Zone’ and a site-specific ‘RT1 Residential Townhouse Zone’ to a site-specific ‘RA3 Apartment Residential Zone’ subject to the conditions of the H provision. The site-specific exceptions include the following:

• amend the definitions of Lot, Parking Space, and Front Lot Line,
• amend the minimum parking space requirements,
• reduce the landscaping requirements and add items permitted within the landscape strip,
• increase the maximum building height and mechanical penthouse, and
• amend standards for projections, below-grade parking structures, minimum amenity area, lot area, and setbacks.

18As described by Mr. Mino-Leahan, the ZBA to amend ZBL 1-21 proposes to rezone the Subject Property from a site-specific ‘RE Estate Residential Zone’ and a site-specific ‘RT Townhouse Residential Zone’ to a site-specific ‘RM3 Multiple Unit Residential Zone’ subject to the conditions of the H provision. The site-specific exceptions include the following:

• amend the definitions of Lot and Front Lot Line,
• reduce the landscaping requirements and add items permitted within the landscape strip,
• increase the maximum building height and mechanical penthouse,
• remove podium, tower and angular plane requirements,
• reduce stacked bicycle parking space dimensions, and,
• amend standards for projections, intake shafts, below-grade parking structure, minimum amenity area, lot area, and setbacks.

19Mr. Mino-Leahan advised that for both ZBAs, the H will require fulfillment of the conditions prior to removal. He confirmed that the H provisions are identical for both ZBAs.

20Mr. Mino-Leahan further advised that the proposed OPA and ZBAs provide enough flexibility for the finalization of the Site Development Application that was submitted to the City on December 19, 2022 and that will be revised in the near future.

21Mr. Mino-Leahan described the built form of the proposed development as directing the height and density to the southeast corner of the Subject Property with the terraced building design graduated to the west and north resulting in 12 storeys at the southeast corner, six storeys at the southwest corner and four storeys at the north end fronting on Sandwell Street.

POLICY FRAMEWORK

The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

22With respect to the policy and regulatory context, Mr. Mino-Leahan opined that the Applications have regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, and in particular:

• the orderly development of safe and healthy communities,
• the adequate provision of a full range of housing, including affordable housing,
• the appropriate location of growth and development,
• the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians, and
• 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.

PPS

23Mr. Mino-Leahan opined that the Applications are consistent with the PPS, and in particular the policies that direct the management of land uses to achieve efficient and resilient development and land use patterns, including policy 1.1.1 which promotes efficient development and land use patterns, policy 1.1.3.1 which requires that settlement areas be the focus of growth and development, policy 1.1.3.2 which encourages densities and mix of land uses that efficiently use land and resources, and policy 1.4.3 which directs municipalities to provide for an appropriate range and mix of housing options and densities. He referred the Tribunal to his Affidavit, in which he notes that, the PPS is “supportive of intensification that is planned and coordinated within built-up areas that have a compact form, mix of uses and densities that allow for the efficient use of land, infrastructure and public service facilities”.

Growth Plan

24It was Mr. Mino-Leahan’s opinion that the Applications conform with the Growth Plan, and in particular policy 2.2.1.2 that requires the vast majority of growth to be directed to settlement areas that have a delineated built boundary, have existing or planned municipal water and wastewater systems, and can support the achievement of complete communities. The policy requires that, within settlement areas, growth is to be focused in delineated built-up areas, strategic growth areas, locations with existing or planned transit, with a priority on higher order transit and areas with planned public service facilities. He noted that the Subject Property is located within a designated greenfield area of a settlement area and is currently served by full municipal services and higher-order transit. His Affidavit further notes that the development “conforms to the policy framework of the Growth Plan, as the built form would efficiently and appropriately intensify the Subject Lands at a density supportive of Growth Plan objectives with respect to directing growth to Settlement Areas”.

ROP

25The Subject Property is designated ‘Urban Area’ in the ROP. It was Mr. Mino-Leahan’s opinion that the Applications conform to the ROP, and in particular policies in sections 5.2 and 5.3 that focus growth in urban areas and encourage intensification within the built boundary and development that maximizes efficiencies in infrastructure delivery, supports active and public transportation uses and provides for a wide range of housing.

26Mr. Mino-Leahan noted that the Region has a new Official Plan (“ROP 2022”) that was approved on November 4, 2022. Although the Applications are not subject to the ROP 2022, he reviewed the Applications in the context of its policies and it is his opinion that the Applications conform to both the ROP and the ROP 2022.

COP

27Mr. Mino-Leahan opined that the Applications implement the overall policy direction and intent of the COP and therefore conform to the COP, notwithstanding the policies being modified through the OPA. He noted that the east portion of the Subject Property is located within the Vellore Centre ‘Local Centre’ which, as identified in section 2.2.5 and Schedule 1 of the COP, is identified as an ‘Intensification Area’. He advised that ‘Local Centres’ are the focus for “multi-family developments” and may permit mid-rise and high-rise buildings as appropriate.

28Mr. Mino-Leahan advised that the west portion of the Subject Property is located within a ‘Community Area’ which are predominantly comprised of low-rise residential development, but that limited intensification is permitted provided it is compatible with the character, form, and planned function of the surrounding context as per policy 2.2.3.3.

29For development immediately adjacent to ‘Community Areas’, including the east portion of the Subject Property, Mr. Mino-Leahan noted that COP policy 2.2.3.4 requires appropriate transition in scale, intensity, and use, and the mitigation of adverse noise and traffic impacts, while fulfilling the objectives of ‘Intensification Areas’.

30In his opinion, the OPA brings the Subject Property into a consistent land use designation and has regard for the intensification strategy in the COP and therefore conforms to the policy intent of the COP.

ZBL 1-88 and ZBL 001-2021

31In Mr. Mino-Leahan’s opinion, the requested amendments for both ZBL 1-88 and ZBL 001-2021 allow the applications to conform to the general intent and purpose of both ZBLs. The holding provisions included in the applications allow the City to ensure that the applications maintain the built form as presented.

Conclusions

32Mr. Mino-Leahan opined that the proposed zoning standards will ensure an appropriate built form and transition to the existing developments to the west and north, with the majority of the massing being focused at the southeast portion of the site and the height and intensity terraced down to the west and north. He further opined that the proposed OPA and ZBAs represent good land use planning and that their approval is in the public interest.

33Mr. Mino-Leahan concluded that the Applications are consistent with the PPS, conform to the Growth Plan and to both the ROP and the COP. He recommended that the Tribunal approve the OPA and ZBAs as submitted.

PARTICIPANT STATEMENTS

34Mr. Mino-Leahan advised the Tribunal that the issues in the Participant Statements filed in response to the appeal, and those of the members of the public involved at the public meeting, centered mostly around traffic, height, and density. Mr. Mino-Leahan advised that these issues formed part of the technical review of the Applications by the City and that, resulting from the technical review, the H attached to the ZBAs requires a further traffic study to address traffic concerns but he noted that the current traffic study supports the development from a traffic perspective. With respect to height and density, Mr. Mino-Leahan advised that the terracing of the building heights to the west and north ensures compatibility with, and appropriate transitioning to, surrounding development and that the ZBAs regulate a maximum of four storeys at the north end of the Subject Property.

35With respect to the Participant concern related to the Vellore Village District Core Study Review, Mr. Mino-Leahan advised that it was his understanding that the study was identified by the City but that no such study was undertaken.

ANALYSIS AND FINDINGS

36The Tribunal accepts the uncontroverted testimony and evidence of Mr. Mino-Leahan.

37The Tribunal finds that the proposed development will fit harmoniously with the existing and planned built form context and will enhance the area by providing intensification in an area which is well served with municipal infrastructure and transit while ensuring compatibility with the surrounding existing and planned developments. The development will be an efficient use of the land and will support the achievement of the PPS and Growth Plan policy directions promoting intensification within a built-up urban area.

38The Tribunal accepts the submission of Mr. Mino-Leahan that the proposed development will not create unacceptable built form impacts on nearby properties. Further, the Tribunal is satisfied that the built form will create a high-quality addition to the area, in the context of the terracing of the building from 12 storeys at the southeast portion of the property down to six storeys to the west and four storeys to the north.

39In consideration of the submissions of Mr. Mino-Leahan and the revisions to the proposal resulting in the settlement of the appeals, the Tribunal is satisfied that the Applications have sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the Applications are consistent with the PPS, conform to the policies of the Growth Plan, and conform to the policies of the ROP and the COP.

40The Tribunal finds that the applications as presented conform to the general intent and purpose of both ZBL 1-88 and ZBL 001-2021. The Tribunal finds that the provisions included with the holding symbols are appropriate for the applications.

ORDER

41THE TRIBUNAL ORDERS that the appeal is allowed in part and the Official Plan of the City of Vaughan is amended as set out in Attachment 1 to this Order.

42THE TRIBUNAL ORDERS that the appeal is allowed in part and Zoning By-law 1-88 of the City of Vaughan is amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of the City of Vaughan to assign a number to this By-law for record keeping purposes.

43THE TRIBUNAL ORDERS that the appeal is allowed in part and Zoning By-law 001-2021 of the City of Vaughan is amended as set out in Attachment 3 to this Order. The Tribunal authorizes the municipal clerk of the City of Vaughan to assign a number to this By-law for record keeping purposes.

“C. I. Molinari”

C. I. MOLINARI

MEMBER

“S. deBoer”

S. deBOER

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.