Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 28, 2023

CASE NO(S).: OLT-22-002187

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

Applicant and Appellant: BJL Properties Inc.

Subject: Application to amend Zoning By-law Nos. 438-86 and 569-2013 – Neglect or Refusal of application by the City of Toronto

Existing Zoning: CRE (x12) and CRE (x23)

Proposed Zoning: CR SS1 (x339)

Purpose: To permit the development of a 19-storey mixed use building on the Lands

Property Address/Description: 102 Berkeley Street

Municipality: City of Toronto

Municipal File No.: 21 221292 STE 13 OZ

OLT Case No.: OLT-22-002187

OLT Lead Case No.: OLT-22-002187

OLT Case Name: BJL Properties Inc. v. Toronto (City)

Heard: June 13, 2023, by video hearing

APPEARANCES:

Parties	Counsel
BJL Properties Inc.	Mark Flowers Alexis Egi (Student)
City of Toronto	Michael Mahoney Mark Crawford (in absentia)
MPCT 49 Ontario Street LP & Whiterock 49 Ontario Street LP (“MPCT/Whiterock”)	Joe Hoffman Rodney Gill (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER AND K.R. ANDREWS ON JUNE 13, 2023, AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal brought pursuant to s.34(11) of the Planning Act (the “Act”) by BJL Properties Inc. (the “Applicant”). The appeal arises following a non-decision by the City of Toronto (the “City”) within the prescribed time period. The Applicant is seeking a zoning by-law amendment (“ZBLA”) to permit a 19-storey mixed-use development having 181 units at 102 Berkeley Street (the “Subject Property”).

2The Parties advised that a settlement had been reached in advance of the hearing on the merits and requested that the merit hearing be converted to a settlement hearing.

3There were three iterations of the development that led to the eventual settlement with the City and MPCT/Whiterock. The Applicant revised the application to address concerns the City had raised with respect to the built form, setbacks, massing, and public realm, amongst other matters. Settlement was reached with MPCT/Whiterock specifically through design changes to the proposed tower that would create more space and privacy with the building to the south of 102 Berkeley Street, which is owned by MPCT/Whiterock.

4The ability to deliver public park space and the protection of the low-rise built form heritage along Berkely Street formed the basis of the Settlement proposal.

5The Applicant’s Planner, Peter Smith, testified in support of the settlement. The Tribunal qualified him to provide expert opinion evidence in land use planning matters.

6The Tribunal, having considered the uncontested testimony of Mr. Smith and having reviewed his affidavit and the visual evidence provided by the Applicant, allowed the appeal, and approved the planning instruments in principle with a final Order to be withheld subsequent to the various conditions being satisfied, as described further below.

AREA CONTEXT

7The Subject Property is located on the west side of Berkeley Street, between Richmond Street East and Adelaide Street East which are both classified as Major Arterial Roads. At present, the Subject Property contains a single-storey warehouse building that covers most of the lot, and Berkeley Street is known for its low-rise rowhouses. In the surrounding area, there are residential and commercial uses. The site is located in a rejuvenation area and several new projects in the vicinity have been approved with building heights ranging up to 44 storeys. The area is well serviced by transit facilities, including bus and streetcar routes. The construction of the Ontario Line subway will add another transit option with station access planned within walking distance of the Subject Property.

8Immediately south of the Subject Property is 49 Ontario Street, in combination with 72 – 94 Berkeley Street, (the “MPCT/Whiterock Site”) this site has been the subject of a recently approved rezoning application for a mixed-use development consisting of three buildings of 11, 39, and 44 storeys, and a new 581 square metre public park fronting Berkeley Street.

PROPOSED SETTLEMENT

9The Settlement Proposal is centred on the creation of an expanded park along the Berkeley Street frontage. A portion of the park would be stratified to provide the same depth as the proposed park to be built on the MPCT/Whiterock Site. The increase to the depth of the park along Berkeley Street necessitates a greater setback to the proposed building, which has the concurrent benefit of maintaining the low-rise scale of buildings immediately situated along Berkely Street. The only building element close to the Berkeley Street frontage will be a single storey entry building, which will be set back 8.35 metres from the street in order to satisfy fire access requirements.

10The reduction in the depth of the tower necessitated an increase in the tower height to compensate for the reduced floor plate size. The height of the building was therefore increased from 19 to 35 storeys. The revised proposal is consequently a 35-storey mixed-use condominium building, which includes a total of 257 dwelling units

LEGISLATION FRAMEWORK

11In reaching a decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act (“Act”), as well as the position taken by the municipality and the information considered by it, pursuant to s. 2.1(1) of the Act. The Tribunal’s decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”), conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), and conform with the applicable City’s Official Plan and Secondary Plans.

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

12The Tribunal finds that the settlement proposal has sufficient regard for matters of provincial interest in accordance with s. 2, especially such matters that encourage intensification within transit supported areas, while also being sensitive to neighbourhood character, promotion of appropriate built form, and establishment of quality public spaces. Given that the City endorses the settlement, the Tribunal also finds that the revised proposal has appropriate regard to the decision of council pursuant to s. 2.1(1).

Provincial Policy Statement

13Mr. Smith opined that the Settlement Proposal is consistent with the Provincial Policy Statement, 2020 (“PPS”). In particular, the policy directions concerning residential intensification and the efficient use of land and infrastructure. The Planner referred to numerous policies in the PPS and testified that the proposed redevelopment of the Subject Property advanced the PPS policy direction to optimize the use of land, resources, and the existing infrastructure. The Settlement Proposal would contribute to a more “complete community”, through its range of housing opportunities and public park. He also noted that the proposed public park and the increased setback to the tower element of the redevelopment was sensitive of the cultural built heritage along the Berkeley and Richmond Street frontages.

Growth Plan for the Greater Golden Horseshoe (2019)

14Mr. Smith listed several policies located within the Growth Plan that, in his opinion, demonstrated the Application’s conformity with this policy document. He referred to policies on strategic growth areas and noted policies that seek to optimize the use of land and infrastructure.

15Mr. Smith reminded the Panel that the Subject Property will eventually be located within two major transit areas by virtue of its proximity to two proposed subway stations for the Ontario Line.

City of Toronto Official Plan

16Mr. Smith provided a very detailed overview of the Subject Property’s immediate surroundings and where the site fit within secondary plans and existing zoning. The Subject Property is located within the Downtown area of the City’s Official Plan (“City OP”), which is a target for a vibrant mix of residential and employment growth. The land use designation for the area is ‘Regeneration Areas’ which is a growth designation intended to accommodate planned growth within the City.

17Mr. Smith referenced Section 4.7 of the City OP, which sets out the intentions of a Regeneration area, including: provision of a broad mix of commercial, residential, parks and open spaces to revitalize areas of the City that are underused. He noted that it is also the intent of this policy to create new jobs and homes that use the existing infrastructure and create and sustain stable employment opportunities.

Secondary Plans – Downtown Plan

18The Downtown Plan designates most of the Subject Property as Mixed Use Areas 2 – Intermediate, except for the Berkely Street frontage which is designated Mixed Use Areas 4 – Local. Mr. Smith noted that Policy 6.25 includes building typologies that respond to the proposed development of the site including mid-rise and some tall buildings.

19As set out in Policy 6.33 of the City OP, Mixed Use Areas 4 will contain residential, small-scale office and retail uses that generally serve the needs of the local community. Mixed Use Areas 4 areas will be of a low-rise scale which will be compatible with the existing physical character of the neighbourhood as well as the planned context.

20Mr. Smith opined that the development proposal accommodates this dual designation. The development includes a one-storey building entry element that is set back 8.35 metres from the Berkeley Street frontage – which aligns with the Mixed Use Areas 4 designation. In addition, he also noted that the proposed public park that will front Berkeley Street and the portion of the one-storey entry building also conforms with the Mixed Use Areas 4 designation.

21The rear portion of the Subject Property containing the tower element of the proposal will be set back a minimum of 17.88 metres from the street frontage and is sited within the Mixed Use Areas 2 portion of the Subject Property. In Mr. Smith’s opinion, the proposed height and built form conforms with the applicable land use designations.

22With respect to housing, Mr. Smith spoke about the balanced mix of unit types and sizes that are contemplated by the proposal. He referenced Policy 11.1 which supports the creation of housing units suitable for families and opined that the proposed mix conforms with this policy.

Secondary Plan – King Parliament Secondary Plan

23The Subject Property is also subject to the King-Parliament Secondary Plan. In Mr. Smith’s opinion, the proposed ZBLA conforms with the in-force King-Parliament Secondary Plan.

24The Secondary Plan designates the Subject property Regeneration Area A, which is regarded as “an area targeted for significant growth,” having a mix of compatible land uses including commercial, industrial, and residential within new and existing buildings.

25It was noted in Mr. Smith’s affidavit that an updated Secondary Plan and implementing Zoning By-law Amendments for the King-Parliament areas were adopted by City Council on May 5, 2021. The updated Secondary Plan, as adopted by the City were appealed to the Tribunal and, accordingly, are not in force or applicable to this application.

Official Plan Amendment No. 570

26Mr. Smith explained that, in July 2022, the City adopted four Official Plan Amendments (OPA 540, OPA 544, OPA 570, and OPA 575) regarding Major Transit Station Areas and a subset of these areas identified as Protected Major Transit Station Areas (“PMTSA”). The City intends to implement its council-approved inclusionary zoning policy framework in these areas. These OPAs are still under review by the Province.

27Mr. Smith nevertheless noted that the Subject Property is located within the boundary of a PMTSA as a result of the planned subway stations for the Ontario Line. The PMTSA targets for the two planned subway stations in the vicinity of the proposed development are planned for a minimum population and employment target of 400 residents and jobs per hectare. Mr. Smith opined that the Settlement Proposal will help give effect to the policy direction set out in the proposed OPA 570.

Design Guidelines

28Mr. Smith briefly discussed the Urban Design Guidelines for the King-Parliament area. He made reference to the directions aimed at maintaining the low-rise character of Berkely Street, which the Settlement Proposal aligns with, given the public park is to be situated on the Berkeley Street frontage.

29With respect to the Tall Building Design Guidelines, Mr. Smith stated that these guidelines do not apply to the Subject Property given the fact that it is located within a Secondary Plan Area (King-Parliament). However, Mr. Smith is nevertheless of the view that the Settlement Proposal was generally in keeping with the City-wide Tall Building Design Guidelines.

30The Growing Up Guidelines were adopted by the City to direct how new development can better function for larger households. In Mr. Smith’s opinion, the proposed unit mix would be in accordance with the Growing Up Guidelines.

31Mr. Smith further opined that the proposed redevelopment was contextually appropriate and would represent a high-quality architectural addition to the area. He also noted that while the proposed height of the building has increased significantly through discussions with the City, in his view the height was appropriate given the evolving height context of the King-Parliament area.

Zoning

32The in-force zoning by-law applying to the Subject Property is By-law 569-2013. The majority of the site is zoned CRE (x12) with the exception of the northerly 3.5 metres (approximately) which is zoned CRE(x23).

33The CRE zone permits a wide range of uses including residential buildings, retail, office, and institutional. Exception CRE 23 states that no building or structure within 12 metres of the lot line abutting Berkeley Street may exceed a height of 12 metres.

34The proposed zoning amendment would rezone the subject site to CR SS1 and “O” for open space zoning along the Berkeley Street frontage.

35Mr. Smith noted that certain vertical projections beyond these heights are still under discussion with the City and may be further refined.

FINDINGS

36Based on the uncontroverted and unopposed opinion evidence in the area of land use planning provided by Mr. Smith, the Tribunal finds that the proposed ZBLA has appropriate regard for matters of Provincial Interest, is consistent with the PPS, conforms with the Growth Plan, City OP, other applicable City policies and otherwise represents good land use planning.

37The Tribunal finds that the proposed redevelopment of the Subject Property will fit harmoniously with the existing and planned built form context and is an appropriate utilization to optimize the use of the Subject Property. The site is in an area where intensification is to be promoted and, as ably reviewed by Mr. Smith, all documents individually and cumulatively encourage growth and intensification in the area where the Subject Property is located.

38The intensification is further appropriate given the site’s proximity to higher order public transit. While the proposed tower height is a significant increase from what was originally contemplated, the Tribunal finds that it responds appropriately to the evolving height context in the King-Parliament area, is responsive to the built form heritage of Berkeley Street and the built form and massing conforms with all applicable policies, the City OP and Secondary Plans.

INTERIM ORDER

39THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 40 below, and a Zoning By-law Amendment for 102 Berkeley Street is hereby approved in principle.

40The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:

a. The Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to: (i) the Chief Planner and Executive Director, City Planning and the City Solicitor; (ii) BJL Properties Inc.; and (iii) MPCT 49 Ontario Street LP and Whiterock 49 Ontario Street LP;

b. The owner has withdrawn its site-specific appeal of Official Plan Amendment 525, and shall not seek any Party or Participant status on the appeals of OPA 525;

c. The owner has submitted a revised pedestrian level wind study to the satisfaction of the Chief Planner and Executive Director, City Planning, with any required wind mitigation measures implemented through the Site Plan Approval process to the satisfaction of the Chief Planner and Executive Director, City Planning;

d. The owner has provided an access agreement for shared vehicle access and a loading agreement for shared loading facilities, to the satisfaction of the General Manager, Transportation Services;

e. The owner has addressed outstanding issues in relation to site servicing and has submitted a Functional Servicing and Stormwater Management Report, Hydrogeological and Geotechnical Reports, and any other related engineering reports and drawings, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and has agreed that the design and implementation of municipal infrastructure will be at the owner’s sole cost and expense for any upgrades or improvements to City infrastructure identified in the approved Functional Servicing and Stormwater Management, Hydrogeological and/or Geotechnical Reports, with such improvements being secured to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and

f. The Owner has entered into an In-kind Contribution Agreement pursuant to Section 37(7.1) of the Planning Act to secure the stratified on-site parkland dedication, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.

41The Panel Members 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.

42If the Parties do not submit the final drafts 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 2 above have been satisfied, and do not request the issuance of the Final Order, by Friday, March 29, 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 and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, the Tribunal may then dismiss the Appeal.

43The 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(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“G.A Croser”

G. A. CROSER MEMBER

“K.R. Andrews”

K.R. ANDREWS 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.