Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 17, 2023
CASE NO(S).: OLT-22-002154
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Tuxedo Court GP Ltd.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit two, 644-unit mixed use building development
Reference Number: 21 149511 ESC 24 OZ
Property Address: 40-42 Tuxedo Court
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-002154
OLT Lead Case No: OLT-22-002154
OLT Case Name: Tuxedo Court GP Ltd. v. Toronto (City.)
Heard: June 20, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Tuxedo Court (GP) Limited
D. Bronskill
City of Toronto
J. Davidson
Toronto and Region Conservation Authority
B. Montgomery
DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The Tribunal convened a settlement hearing with respect to a Settlement for the above noted matter. Tuxedo Court GP Limited (“Applicant”) has filed an appeal against the City of Toronto (“City”) for its failure to make a decision on a Zoning By-law Amendment(s) (“ZBA”) pursuant to s. 34(11) of the Planning Act (“Act”). The property is known municipally as 40 and 42 Tuxedo Court (“Subject Property”).
2There presently exists a 15-storey apartment building (40 Tuxedo Court) and a two-storey commercial building (42 Tuxedo Court) on the Subject Property. The Applicant intends to redevelop a portion of the Subject Property and a ZBA is required in order to facilitate the proposed mixed-use development consisting of two towers of 26 and 29 storeys respectively.
3The three Parties are all represented at the settlement hearing as noted above.
4Counsel for the Applicant, David Bronskill, advised the Tribunal that the Applicant has reached a full settlement (“Proposed Settlement”) with the City. The details of the Proposed Settlement are found in the Affidavit of Ben Larson marked as Exhibit 2 to this proceeding.
5The Parties are seeking the Tribunal’s approval of a ZBA to the City’s Zoning By-law No. 569-2013 as amended (Exhibit 2, Exhibit E) and also a ZBA to the former City of Scarborough, Woburn Community Zoning By-law No. 9510.
6Testimony is heard from one planning witness, Ben Larson (the “Planner”). He is qualified to give expert opinion evidence in the discipline of land use planning. With respect to this matter, he has considerable planning experience within the subject area and the City. All Parties heard and consented to the content of the Affidavit (marked as Exhibit 2) and the Planner’s expert evidence. The Tribunal makes use of both oral and Affidavit evidence in the construct of this Decision.
BACKGROUND, SUBJECT PROPERTY AND AREA ANALYSIS
7The Subject Property is located on the north side of Tuxedo Court, which is located generally to the southeast of Highway 401 and Markham Road, in the City. The total site area is approximately 1.4 hectares (“ha”) and has approximately 50 metres (“m”) frontage along Tuxedo Court. The Subject Property is currently occupied by a 15-storey apartment building and a two-storey commercial building. The balance of the Subject Property consists of surface parking areas, a driveway, and soft landscaping areas.
8Surrounding land uses are:
a. North - the East Highland Creek and Valley;
b. East – a 15-storey apartment building (30 Tuxedo Court);
c. South – two 15-storey apartments (10 and 20 Tuxedo Court) and a daycare centre; and,
d. West - a 15-storey apartment building (50 Tuxedo Court).
9Suffice it to say, this application has some considerable history, which included mediation. A brief summary is as follows:
a. The Applicant submitted initial ZBA and Site Plan Control applications to the City in May 2021. These Applications included the requisite background information, studies, and site plan drawings to meet the City requirements.
b. In January 2022, the Applicant appealed the ZBA to the Tribunal.
c. In October 2022, the Applicant and their consulting team engaged in without prejudice mediation with the City and agency staff in respect of the redevelopment proposal for the Subject Property.
d. The Applicant, through its solicitor, then provided a without prejudice settlement offer to the City, which included architectural plans prepared by the IBI Group dated December 12, 2022.
e. At the March 29 – 30, 2023 meeting, City Council adopted staff recommendations related to the Proposed Settlement subject to six conditions being fulfilled (Item 2023.CC5.13 found in Exhibit 2, Exhibit B) prior to the Tribunal issuing a Final Order.
PROPOSED SETTLEMENT
10The major components of the Proposed Settlement include the following:
a. Two towers with heights of 28 storeys (west tower) and 22 storeys (east tower). Each tower rises from independent one- to two-storey podium base buildings. The proposed buildings will have a total Gross Floor Area of 38,055 square metres (“sq m”) consisting of residential uses, a daycare complete with an outdoor area, and ground floor retail space;
b. There are proposed to be 645 dwelling units of which approximately 10% will be three bedrooms and 20% will be two bedrooms;
c. There is a proposed one-storey 418.5 sq m daycare with a contiguous outdoor daycare space. Two, one-storey retail spaces are proposed on the ground floor of the westerly towers base building;
d. The existing 216-unit rental apartment building will be retained, and the existing rental tenure of the existing apartments will be secured. Improvements will be provided by the Applicant to the existing 15-storey apartment building;
e. Privately Owned and Publicly Accessible Open Space and both indoor and outdoor residential amenity spaces are provided for in the Proposed Settlement;
f. The adjacent East Highland Creek and Valley to the north has the Toronto and Region Conservation Authority drip line and associated 10-metre buffer line along with the long term stable top of slope, with associated setback lines properly established;
g. All transportation, vehicular access, municipal servicing and pedestrian wind conditions and requirements have been considered as part of the Proposed Settlement. Updates to relevant studies are included as conditions to this Decision;
h. City green standards will be addressed, at the time of the site plan control application, for this development; and,
i. The Proposed Settlement plans are reflected in the architectural plans prepared by the IBI Group, which are included in Exhibit 2, Exhibit D.
LAND USE PLANNING POLICY
11Mr. Larson, in his testimony, advised the Tribunal that he routinely takes a very comprehensive view and review of all relevant planning policy and urban design objectives. After doing so for this application, he prepared a comprehensive Affidavit in support of the Proposed Settlement. The ZBA applications are also supported by a multi-disciplinary project team.
Provincial Policy
12Mr. Larson reviewed s. 2 – Provincial Interests in the Act and noted the many matters that speak specifically to the Proposed Settlement. He opined that the Proposed Settlement gives proper consideration to all matters related to s. 2 of the Act.
13The Planner outlined the relevant policies in the Provincial Policy Statement, 2020 (“PPS 2020”), which articulates the provincial-led planning policy regime. PPS 2020 encourages the wise management of land in order to achieve efficient land use patterns by directing growth to settlement areas and promoting a compact form of development. Provisions of the PPS 2020 summarized in testimony are:
a. Promoting efficient development and resilient land use patterns that sustain healthy, liveable, and safe communities;
b. Focusing growth and development in settlement areas;
c. Provision of an appropriate range of residential and other uses, and accommodating a significant supply and range of housing options through intensification and redevelopment;
d. The integration of land use planning, growth management, and transit supportive development;
e. Promoting densities and mix of land uses which result in the efficient use of land and infrastructure;
f. Identifying appropriate areas for intensification with appropriate development standards which facilitate intensification, redevelopment, and compact form, while avoiding or mitigating public health and safety risks;
g. Supporting active transportation and development that is transit supportive and promotes healthy, active communities by planning for public spaces and facilities that are safe, meet pedestrian needs, and foster social interaction;
h. Supporting long-term prosperity by optimizing the use of land resources, infrastructure, and public service facilities; and,
i. The integration of land use planning, growth management, and transit supportive development.
14Mr. Larson opined that the Proposed Settlement is consistent with the PPS 2020.
15The Planner gave evidence with respect to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan 2020”). The Growth Plan 2020 establishes a comprehensive growth management strategy for municipalities in the Greater Golden Horseshoe. Relevant policy considerations included in his testimony are:
a. Encouraging the achievement of complete communities that are designed to support healthy and active living and meet people's needs throughout an entire lifetime. The Proposed Settlement provides for a complete community by promoting a compact built form that is integrated in the community and with adjacent land uses.
b. The prioritization of intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure to support transit viability. The Subject Property is located in a Mixed Use Area, is well served by surface transit, a network of major streets, along with existing and future high order transit facilities.
c. Supporting a range and mix of housing options, including additional residential units and affordable housing, to serve all sizes and incomes and ages of households.
d. Important policies relating to the creation of complete communities and optimizing the use of land and infrastructure. A diverse range and mix of housing options that are convenient to a range of transportation facilities and provide for a more compact built form and vibrant public realm are encouraged.
e. Municipalities are directed to undertake integrated planning in order to manage forecasted growth to the horizon of the Growth Plan 2020. Growth will be focused on delineated built up areas which is generally all of the City. Integrated planning will assist in providing an urban form that will optimize infrastructure, particularly along transit and transportation corridors.
f. Development should respect the long term goals of mitigating and adapting to climate change by encouraging resilient and sustainable buildings and places, reducing greenhouse gas emissions, integrating green infrastructure and low impact development.
g. The need to optimize existing infrastructure before new infrastructure is built thereby making efficient use of available infrastructure to accommodate growth.
16Mr. Larson is of the opinion that the Proposed Settlement conforms to the policies of the Growth Plan 2020.
Municipal Policy
City of Toronto Official Plan (“City OP”)
17Mr. Larson advised the Tribunal that the City OP broadly guides land use and development planning throughout the City. It is premised on steering growth and change to parts of the City that can and should have the ability to accommodate this change, while protecting Neighbourhoods and green spaces from development pressures.
18The Subject Property is designated Mixed Use Areas on Map 23, Land Use, of the City OP. The Mixed Use Areas designation permits a broad range of commercial, residential, and institutional uses either in single use or mixed-use buildings. It also permits parks, open spaces, and utilities. Development in these areas is intended to create a balance of high quality commercial, residential, institutional, and open space uses that reduces automobile dependency, meets the needs of the local community, and will provide for jobs and homes on underutilized lands in the City. It is also situated in close proximity to Markham Road, which, in the City OP, is classified as a Major Street and as a Transit Priority Segment within the “expansion” elements category.
19The Planner noted that the proposed development supports the relevant City OP policies which include:
a. The integration and support for public and active transportation.
b. Ensuring healthy neighborhoods and a development which is compatible to those neighbourhoods.
c. The location and organization of vehicle parking, vehicle access, service areas and utilities to minimize their impact on the subject lands and the surrounding properties. Considerable care was taken to ensure that the location and massing of the new building provides an appropriate transition between areas of different development intensity and scale.
d. Providing sufficient indoor and outdoor amenity space for the residents. This includes a Privately-Owned Publicly Accessible Open Space between the two buildings.
e. Assisting in the provision of a full range of housing both in terms of form, tenure, and affordability to meet the current and future needs of City residents. A minimum of 20% of the total number of units will be two-bedroom and 10% three-bedroom units are provided. The existing 216 rental units will be retained and improved.
f. Protecting the natural environment by clearly establishing the Toronto and Region Conservation Authority drip line and associated 10-m buffer line as well as the long-term stable top of slope with the associated set back lines.
20Mr. Larson made special note of how the Proposed Settlement addresses the criteria related to development in Mixed-Use Areas that are adjacent or close to Neighborhoods. The proposed development is:
a. Compatible with the nearby low-density neighbourhoods;
b. Provides a gradual transition of scale and density as needed to meet the City OP objectives. This is achieved by the stepping down of buildings towards and setbacks from the Neighbourhoods;
c. Serves to maintain adequate light in privacy for residents in the Neighbourhoods; and,
d. Serves to reduce any resulting traffic and parking impacts on the surrounding community and will therefore not significantly diminish the areas residential amenity.
21Mr. Larson opined that the proposed development conforms with the intent of the City OP with specific reference to the Mixed-Use Areas designation and the policies related to growth management, proposed mix of residential and commercial uses, provision and retention of much needed housing, establishing the necessary amenities to serve the residents of the proposed development, built form, parks and public realm, and the recognition and identification of the Highland Creek’s important natural environment features.
Site and Specific Policy No. 322 (“SASP 322”)
22The Subject Property is within the SASP 322 – Markham-Ellesmere Revitalization Area, which applies to various sites designated Mixed Use Areas and Apartment Neighbourhoods fronting on, or in close proximity to Markham Road generally between Progress Avenue and Brimorton Drive. The City has recognized this area as having the potential for redevelopment and intensification and the intent of SASP 322 is to support renewal of the area through private and public investment.
23Mr. Larson is of the opinion that the Proposed Settlement conforms to SASP 322 as it:
a. Is close to but does not impede the establishment of the new public street encouraged by SASP 322;
b. Serves to renew the existing rental apartment building which includes a retrofit to improve energy efficiency, enhanced landscaping, and tenant amenities;
c. Facilitates publicly accessible pedestrian connections through the Subject Property;
d. Provides a daycare that is integrated in the base of the east tower along with a continuous outdoor area for the use of the daycare; and,
e. Has been reviewed against and has appropriate regard to the Markham-Ellesmere Urban Design Guidelines.
City of Toronto Zoning By-law(s)
24The Subject Property is zoned Apartment Residential (A) under the former City of Scarborough Woburn Community Zoning By-law No. 9510 (“By-law 9510”).
25Under the new City-wide Zoning By-law No. 569-2013 (“By-law 569-2013”), the Subject Property is zoned in a Residential Apartment Commercial (“RAC”) zone. This zone permits residential apartments and some non-residential uses subject to conditions. The provisions of By-law 569-2013 are now generally in force in effect for all lands in the City.
26The Tribunal learned in oral evidence that both By-law 9510 and By-law 569-2013 must be addressed to properly implement the Proposed Settlement.
27The Tribunal is presented with a draft ZBA to amend By-law 569-2013 (Exhibit 2, Exhibit E).
28The proposed ZBA would rezone the subject lands to an Exception RAC Zone in keeping with City practices. The ZBA establishes provisions for such matters such as permitted uses, location of buildings, maximum heights and gross floor area of buildings, tower setbacks, tower separation requirements, minimum required parking and loading requirements and minimum amount of two and three bedroom units. There are a series of exception regulations and other salient applicable regulations.
OTHER CONSIDERATIONS
City Guidelines Relating to the Proposed Settlement
29Mr. Larson brought to the attention of the Tribunal a number of City Guidelines that are relevant to the Proposed Settlement. These guidelines are not statutory policy documents but serve to complement and detail City OP policy. The Planner advised the Tribunal that the Proposed Settlement has had appropriate regard for the following City guidelines:
a. Markham-Ellesmere Urban Design Guidelines;
b. Tall Building Guidelines; and,
c. Growing up - Planning for Children in New Vertical Communities.
City of Toronto Council Conditions (‘City Council’)
30City Council in its meeting of March 28, 2023, released a Request for Direction Report 2023.CCS.13 (Exhibit 2, Exhibit B). In this report, City Council requests that the Tribunal include six conditions prior to issuing a Final Order. The conditions include the finalization of the required ZBA(s), provisions for site servicing, a revised Transportation Impact Study, an updated pedestrian level wind study, establishment of improvements to the existing rental apartment, and ensuring that the comments of the Toronto and Region Conservation Authority have been addressed.
31Mr. Larson noted that these are relatively standard conditions of City Council in like situations, has reviewed the conditions and agrees to an Interim decision of the Tribunal subject to these conditions.
TRIBUNAL FINDINGS
32The Tribunal accepts the evidence of Mr. Larson in its entirety and finds the proposed ZBAs (and the redevelopment that will be implemented) meet all the relevant policy tests of s. 2 of the Act, the PPS 2020, the Growth Plan 2020, all relevant foundational policies of the City OP, and the intent of the City’s By-law No. 569-2013 and the former City of Scarborough By-law No. 9510. The development represents good planning and is in the public interest. The Tribunal agrees that the Proposed Settlement has had appropriate regard for the relevant City Guidelines and SASP 322.
33The Tribunal finds that the City has extremely well established planning policy for the Subject Property and surrounding area and has followed a careful, complete, and comprehensive planning review of the Proposed ZBAs. The Applicant has presented detailed plans which are used as a basis for the necessary ZBA changes. These plans are found in Exhibit 2, Exhibit D.
34The Tribunal finds that the Proposed ZBAs align with the established principles of relevant Provincial Policy, the City OP, and the SASP 322 as they facilitate a development that:
a. is located on lands within “Mixed Use Areas” designation in the City OP where intensification is promoted. It is close to existing and proposed public transit facilities and routes;
b. represents a comprehensive, well-organized development and land use pattern that serves to make efficient use of land and infrastructure;
c. accommodates an appropriate range of residential and other uses and provides a significant supply and range of housing options through intensification and redevelopment. It includes the retention of and improvement to 216 existing apartment rental units;
d. serves to integrate land use planning, growth management, transit supportive development as it offers excellent transit-oriented development;
e. promotes densities and mix of land uses which result in the efficient use of land and infrastructure. It is appropriately scaled and sized to ensure a balance between the priority of intensification without resulting in negative built form impacts on nearby low-density neighbourhoods by providing a gradual transition of scale and density;
f. contributes to the creation of complete communities and optimizes the use of land and infrastructure; with a diverse mix of land uses by promoting a compact built form that is integrated into the community and with adjacent land uses. This includes the provision of a daycare that is integrated in the base of one of the residential buildings;
g. protects the natural environment in keeping with the policy direction of the Toronto and Region Conservation Authority; and,
h. makes efficient use of available infrastructure to accommodate growth.
35The Tribunal finds that the six conditions found in the March 28, 2023, Notice of Decision (2023.CCS.13) are appropriate and must be met by the Applicant in keeping with normal City practices. These conditions are found in the Interim Order of this Tribunal.
36In conclusion, the Tribunal finds that the Proposed Settlement as illustrated in Exhibit 2, Exhibit D being a series of architectural plans prepared by the IBI Group, is an appropriate and desirable addition to the City, represents good land use planning, is consistent or in conformity with and meets the objectives of all requisite public policy and is in the public interest.
INTERIM ORDER
37Accordingly, the Tribunal Orders on an Interim basis THAT:
a. The Appeal pursuant to s. 34(11) of the Planning Act is allowed, in part, and the Zoning By-law Amendments are hereby approved in principle;
b. The Tribunal will withhold issuance of its Final Order contingent upon written confirmation from the Parties, of the following pre-requisite matters:
a. the proposed Zoning By-law Amendment(s) are in a final form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;
b. the Applicant has provided confirmation of water, sanitary and stormwater capacity to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, or the Chief Engineer and Executive Director, Engineering and Construction Services has determined that holding provisions are required in the Zoning By-law amendment and that the final form of Zoning By-law Amendments includes same;
c. the Applicant has submitted a revised Transportation Impact Study, including an updated Parking and Loading Study and Transportation Demand Management strategy to the satisfaction of, the General Manager, Transportation Services and that such matters arising from such study be secured, if required;
d. the Applicant has provided an updated pedestrian level wind study based on wind tunnel analysis and the Toronto Green Standard template and statistics, to the satisfaction of the Chief Planner and Executive Director, City Planning;
e. the Applicant has undertaken a tenant survey and accessibility audit of the existing building at 40 Tuxedo Court, to the satisfaction of the Chief Planner and Executive Director, City Planning, to determine appropriate improvements and the City has satisfactorily secured same; and
f. the Applicant has addressed the comments from the Toronto and Region Conservation Authority.
c. The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendments and the issuance of the Final Order.
d. If the Parties do not provide confirmation that all contingent pre-requisites to the issuance of the Final Order as set out in paragraph 37 b) above have been satisfied, and do not request the issuance of the Final Order, by Friday, December 15, 2023, 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 Amendments and issuance of the Final Order by the Tribunal.
e. The 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 instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
MEMBER
Ontario Land Tribunal
Website: 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.