Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 19, 2023 CASE NO(S).: OLT-22-002185
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Fengate CCC Holdings LP Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a mixed-use community with five residential and mixed-use buildings Reference Number: 21 179555 NNY 16 OZ Property Address: 1-3 Concorde Gate and 10-12 Concorde Place Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-002185 OLT Lead Case No: OLT-22-002185 OLT Case Name: Fengate CCC Holdings LP v. Toronto (City)
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Fengate CCC Holdings LP Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit a mixed-use community with five residential and mixed-use buildings Reference Number: 21 179556 NNY 16 SB Property Address: 1-3 Concorde Gate and 10-12 Concorde Place Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-002186 OLT Lead Case No: OLT-22-002185
PROCEEDING COMMENCED UNDER section 69(3) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Fengate CCC Holdings LP Subject: Protest the levying of fees in relation to an application for a zoning by-law amendment Description: To permit a mixed-use community with five residential and mixed-use buildings Reference Number: 21 179555 NNY 16 OZ Property Address: 1-3 Concorde Gate and 10-12 Concorde Place Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001207 OLT Lead Case No: OLT-22-002185
Heard: June 21, 2023
APPEARANCES:
| Parties | Counsel |
|---|---|
| Fengate CCC Holdings LP (Applicant/Appellant”) (“Fengate”) | J. Park |
| City of Toronto (“City”) | C. Dougherty |
| Don Mills Residents Inc. | S. Spitz |
| Toronto District School Board (“TDSB”) | P. Patterson |
MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON JUNE 21, 2023 AND INTERIM ORDER OF THE TRIBUNAL
Link to Interim Order
INTRODUCTION and BACKGROUND
1Fengate CCC Holdings LP (Applicant/Appellant” or “Fengate”) submitted applications to the City of Toronto (“City”) for a Zoning By-law Amendment (“ZBA”) and a Plan of Subdivision (“PoS”) for 1-3 Concorde Gate and 10-12 Concorde Place ("Site"). The applicant appealed the City’s failure to make a decision on the applications within the prescribed timeframes under s. 34(11) (ZBA) and s. 51(34) (PoS) of the Planning Act.
2The Original Proposal included five residential and mixed-use buildings comprised of nine towers ranging in height from 40 to 52 storeys, containing approximately 4,086 dwelling units. A total gross floor area of 308,282 square metres (“m2”), consisting of 307,004 m2 of residential space, 841 m2 of retail commercial space and 437 m2 of community space.
3The hearing on this matter was originally assigned fourteen days. Fengate notified the Tribunal that the issues of the TDSB had been resolved. The Tribunal was informed that discussions with the City including those issues raised by Don Mills Residents Inc. were progressing toward a settlement. The Tribunal, on request of the Parties, stood down to allow the discussions to advance.
4As a result, the Parties reached a settlement in principle. In 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.
5Fengate and City jointly requested that the Tribunal approve the Revised ZBA, adjourn the Site Plan Approval sine die and withhold its Final Order pending receipt of confirmation, in writing by the City Solicitor, that the prerequisite matters, outlined in paragraph [47] below, are satisfied.
6With regard to the Appeal under section 69(3) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, protesting the levying of fees in relation to the application for the zoning by-law amendment, neither Counsel spoke to this appeal during the Settlement Hearing. The Tribunal made an inquiry post hearing to understand whether the appeal under s. 69(3) of the Planning Act was resolved or forthcoming. Counsel for the Appellant indicated the matter to be still outstanding. As such, the Tribunal directs that in adjourning the Draft Plan of Subdivision (“PoS”) sine die, the s. 69(3) appeal be brought forward at the same time as the Draft PoS for the Tribunal’s consideration unless otherwise notified of the appeal withdrawal or settlement by the Parties.
SITE CONTEXT
7The Site is approximately 30,996 m2in size, is currently occupied by a commercial office development and does not include any public uses, parks, or public open spaces.
8The Wynford-Concorde area is characterized by a mix of predominantly high-rise residential buildings in addition to retirement residences, co-ops, corporate office buildings located along the east side of the Don Valley Parkway and a retail plaza on Wynford Heights Crescent. The area has direct access to the northbound Don Valley Parkway on-ramps from Eglinton Avenue and Wynford Drive and to the trailhead of the East Don Trail system on the north side of Wynford Heights Crescent.
REVISED PROPOSAL (“Proposal”)
9The Proposal includes five residential and mixed-use buildings, comprised of eight towers ranging in height from 42 to 47 storeys, inclusive of six to ten storey podiums. The provision of two new public parks located near the north and south extents of the site, now total approximately 2,544 m2 in size.
10The Proposal has a total gross floor area of approximately 295,786 m2, resulting in a reduced density of 9.54 FSI (Floor Space Index). This includes approximately 286,737 m2 of residential space, 2,048 m2 of retail commercial space and 7,001 m2 of space to be dedicated to the provision of a new TDSB public school within the Building 2 podium, beneath Tower 2B.
11A total of 3,914 residential units are now proposed, representing a decrease of approximately 172 units from the Original Proposal. The proposed unit mix will include a mix of studio, one, two and three-bedroom units, some of which will be configured as at-grade townhouse units. The proposed units will be supported by a combined 2.92 m2 of indoor and outdoor amenity space per unit. A total of 587 vehicular parking spaces will be provided on two to three underground parking levels, in addition to 3,956 bicycle parking spaces and 9 loading spaces.
12Street A's alignment and configuration was revised, affecting the north parcel's layout. Street A has been widened from 18.5 to 23.0 metres (“m”) and has been both shortened and reconfigured into a general “L” shape, extending north from Concorde Gate and then east to meet with Concorde Place. Due to the reconfiguration of Street A, the north public park formerly abutting Building 1 has been relocated to sit between Buildings 2 and 3 on the west/north side of Street A directly adjacent to a contiguous outdoor open space area of approximately 1,596 m2 which is to be dedicated to the proposed public-school use by way of a surface easement.
13The north parcel will now accommodate a total of three buildings and five towers (Towers 1A, 1B, 2A, 2B and 3) while the south parcel will continue to accommodate two buildings and three towers (Towers 4, 5A and 5B). Vehicular access to the buildings on the south parcel is provided by way of a private driveway from Concorde Gate.
14The proposed walkways, hard and soft landscaping treatments and tree plantings will be applied to the street frontages to enhance the pedestrian environment. Street A and Concorde Gate are intended to accommodate new bicycle lanes.
15The proposed base buildings will contain a mix of active uses at grade, including retail commercial. Buildings 1, 2 and 5 will each contain several at-grade townhouse units, while Building 3 will include at-grade townhouse units fronting the north public park. Building 2 base building is intended to accommodate the proposed public-school use.
16The proposed tower elements have been sited to exceed 25 m separation distances from other towers on the Site.
THE SETTLEMENT HEARING
17When considering an appeal of 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: Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”). The Tribunal must also be satisfied that the ZBA conforms with the OP.
18In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the ZBA represents good planning and is in the public interest.
19The Tribunal qualified Peter Smith, on consent, to provide opinion evidence as an expert in the area of land use planning and urban design.
20Mr. Smith testified that, in his professional opinion, the proposed ZBA, to permit the development of the Site in accordance with the Proposed Settlement, represents an appropriate and desirable form of land use planning and was in the public interest and met all the legislative tests. The following is an account of his uncontested evidence, which is accepted by the Tribunal.
Matters of Provincial Interest
21Mr. Smith testified that the Applications had regard to matters of provincial interest set out in s. 2 of the Act. The proposed development has regard for the orderly development of safe and healthy communities; the adequate provision of a full range of 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.
22In consideration of the PPS, Mr. Smith opined that the Settlement Proposal is consistent with the PPS, in particular the policies relating to residential intensification and the efficient use of land and infrastructure. Mr. Smith directed the Tribunal to his Witness Statement submitted with the Tribunal (Exhibit 1) which identify the relevant policies of the PPS on which Mr. Smith relied. The Tribunal was directed to the policies found in Section 1.1, which promote efficient development and land use patterns, Section 1.1.3 which promote land use patterns that efficiently use land and infrastructure and are transit supportive, Section 1.3 encouraging compact mixed-use development that incorporates employment uses to support liveable and resilient communities, Section 1.4 which direct planning authorities to provide for an appropriate range and mix of housing options, Section 1.6 encouraging the use of existing infrastructure and public service facilities which optimize and support the current and future use of transit and active transportation, and the economic policies and energy conservation and climate policies of Sections 1.7 and 1.8.
23It is Mr. Smith’s opinion that the Settlement Proposal conforms with the Growth Plan, in particular the policies that seek to optimize the use of land and infrastructure and to encourage growth and intensification in Strategic Growth Areas, including Major Transit Station Areas (MTSA), implementing the objectives for a complete community and requiring minimum density targets for MTSAs along Priority Transit Corridors.
The Site is within 530 to 800 m (approximately 800 m walking distance, representing a 10 to 11 minute walk) of the entrance to the Wynford stop on the Eglinton-Crosstown LRT (Light Rapid Transit) line, which is planned to begin operation shortly.
OP 575
24Mr. Smith proffered that the City delineated the boundaries of MTSAs across the City in conformity with the Growth Plan, with the approval of Official Plan Amendment 575 (“OPA 575”) which created the Wynford MTSA and Site Area Specific Policies 685 (“SASP 685”) which establish a minimum population and employment target of 200 residents and jobs combined per hectare. OPA 575 includes the Subject Lands within the boundaries of the Wynford MTSA and advised that the Subject Lands are in close proximity to the future Wynford LRT station located on the Eglinton Crosstown LRT route located directly south of the Subject Property on Eglinton Avenue East.
City’s Official Plans
25Mr. Smith noted that the land use designation is Mixed-Use Areas. He explained that Mixed-Use Areas are one of four land use designations anticipated to accommodate much of Toronto’s increased growth.
26The Tribunal heard the OP envisions that development in Mixed-Use Areas will create a balance of high-quality commercial, residential, institutional, and open space uses that reduce automobile dependency, satisfy the needs of the local community, and provide for new homes for the City’s growing population on underutilized lands.
27Mr. Smith reviewed the criteria for development in the Mixed-Use Areas policies and opined that the Settlement Proposal achieves a balance of high-quality commercial, residential, institutional, and open spaces uses that reduce automobile dependency and meet the needs of the local community providing new jobs, a school and homes for the City’s growing population on underutilized lands.
28With regard to the Public Realm and Built Form policies of the OP, Mr. Smith reviewed renderings prepared by the Architect and explained how the Settlement Proposal will result in a public realm that provides a continuous frontage of ground floor uses to enhance the safety, amenity and animation of Concorde Place, Concorde Gate, Street A.
Zoning
29The in-force Zoning By-law applying to the Subject Site is Zoning By-law 7625 of the former City of North York, as amended.
30Under By-law 7625, the Subject Site is zoned MO(1) (Industrial-Office Business Park Zone, with a site-specific exception). The MO(1) zone permits a range of non-residential uses, including office uses, hotels, financial institutions, restaurants and accessory retail stores and service shops, in addition to light industrial uses. Residential uses are not permitted in the MO(1) zone.
31In this regard, Mr. Smith explained that the proposed amendment incorporates all the zoning provisions that would be required to bring the zoning into conformity within the new City-wide ZBL 569-2013.
City’s Guidelines
32With respect to the City’s Growing Up Guidelines (“GUG”), which recommends a range of unit sizes, Mr. Smith opined that the Settlement Proposal is generally in keeping with the guidelines in the sense that the unit mix includes approximately 1,062 two-bedroom units, representing 27.1 percent of the total unit count, and 351 three-bedroom units, representing 9 percent of the total unit count, both of which meet the Guidelines. The guidelines seek to achieve a minimum of 25% two and three-bedroom units, comprised of 15% two-bedroom units and 10% three-bedroom units. The Proposal will also have access to a new school, parks, and active transportation paths.
33Mr. Smith summarized the City’s Tall Building Design Guidelines (“TBDG”). In his opinion the Proposal is generally in accordance with the TBDG which have flexibility for larger floor plates for taller buildings. He qualified the Settlement Proposal’s floor plates’ range from slightly larger to somewhat larger than the recommended limit of 750 m2. He noted the consideration that the Proposal exceeds the recommended minimum tower setback of 12.5 m and the recommended minimum tower separation of 25 m.
Pet Friendly Design Guidelines
34Mr. Smith testified that under the Pet Friendly Design the proposed development provides for well designed high-quality pet friendly amenities that included external open spaces and living spaces that are supportive of a growing pet population.
FCM/RAC Rail Proximity Guidelines
35Section 3.0 of the Rail Proximity Guidelines sets out the main objective being to mitigate railway-oriented impacts such as noise, vibration, and safety hazards and to ensure that the quality of life of a building’s residents and users is not negatively affected. Mr. Smith explained that Building 3 of the proposed development will include a 25m setback from the rail line and will be fitted with a safety barrier crash wall.
Comments from Participants
36The Tribunal received written statements from Participants who held concerns related to height, traffic, rail safety and design guidelines. Mr. Smith addressed these concerns extensively through his evidence.
37It was Mr. Smith’s overall opinion that the Settlement is consistent with the land use planning framework established in the PPS, conform with the Growth Plan and the OP.
FINDINGS AND DISPOSITION
38The Tribunal accepts the uncontroverted planning evidence and opinions of Mr. Smith in the disposition of the appeal.
39The Tribunal accepts the submission of Mr. Smith that the Settlement Proposal will not create unacceptable built form impacts on nearby properties or the public realm noting the site is located within a high-rise context and is well separated from low-rise residential areas and other shadow-sensitive areas.
40The Tribunal is satisfied that the Settlement Proposed will create a high-quality addition to the area, in keeping with the built form policies of the OP and the nodal development pattern emerging around the Eglinton-Crosstown LRT system.
41The Settlement Proposal will support the achievement of the PPS and Growth Plan policy directions promoting intensification within a built-up urban area and will be an efficient use of the land resulting in a desirable mixed-use intensification project having convenient access to transit, recreation, shopping and employment opportunities, while incorporating a school on the site.
42The Tribunal finds that the Settlement Proposal will enhance the area by intensifying an underutilized site which is well served with municipal infrastructure.
43The ZBA is consistent with the policy direction of the PPS and conforms to the directives of the Growth Plan and the policy intent of the OP. It has appropriate regard for matters of Provincial interest and represent good planning that is in the public interest.
44Furthermore, considering the Proposed Settlement has been endorsed by the City, the Tribunal makes its findings while exercising regard for the decision of the City pursuant to s. 2.1(1)(a) of the Act.
45The Tribunal approves the ZBA in principle, subject to the conditions as recommended by Mr. Smith being approval of the final form of the zoning by-law to the satisfaction of the City Solicitor. With respect to the Draft Plan of Subdivision appeal, this appeal shall be adjourned sine die to allow the City and the Appellant to finalize the approval conditions and to provide them to the Tribunal.
INTERIM ORDER
46THE 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 [47] below, and the draft Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.
47THE TRIBUNAL will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, in writing, that the following prerequisite matters have been completed:
a. the Tribunal has received, and approved, the Zoning By-law Amendments submitted in a final form, confirmed satisfactory to the City Solicitor, Chief Planner and Executive Director, City Planning;
b. the Owner has provided a Functional Servicing Report, Stormwater Management Report and Hydrogeological Review, including the Foundation Drainage Report, satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services;
c. the Owner at its sole expense has designed and provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing Report, Stormwater Management Report and Hydrogeological Review, including the Foundation Drainage Report, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Functional Servicing Report and Stormwater Management Report, Foundation Drainage Report, and Hydrogeological Review, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;
d. the implementation of the Functional Servicing Report, Groundwater Report, Stormwater Management Report and Hydrogeological Report, including the Foundation Drainage Report, accepted by Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services, does not require changes to the proposed amending by-law or any such required changes have been made to the proposed amending by-law to the satisfaction of the Chief Planner and Executive Director, City Planning Division and the City Solicitor;
e. the Owner has submitted a revised Traffic Impact Study which includes Travel Demand Management measures acceptable to, and to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services, and that matters arising from the Study be secured if required and/or provided for in the Zoning By-law Amendment, including the appropriate parking ratios for the development;
f. the Owner has submitted updated Functional Road Plans, including pavement marking and signage plans, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
g. the Owner has submitted a Phasing Plan to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the Chief Planner and Executive Director, City Planning;
h. the Owner has submitted an updated Rail Safety Report to the satisfaction of the Chief Planner and Executive Director, City Planning, and further the Owner's solicitor has confirmed to the City Solicitor that the Owner agrees to a condition of draft plan of subdivision approval to incorporate the mitigation measures outlined in the Rail Safety Report as part of the final development; and
i. the Owner has submitted an updated Pedestrian Level Wind Study to the satisfaction of the Chief Planner and Executive Director, City Planning, and further, the Owner's solicitor has confirmed to the City Solicitor that the Owner agrees to a condition of draft plan of subdivision approval to incorporate the mitigation measures outlined in the Pedestrian Level Wind Study as part of the final development. For clarity, such mitigation measures shall not extend to changes to the building envelope, but may include mitigation measures such as chamfered corners, inset building entrances, or the like, and any other mitigation measures recommended by the wind consultant that would normally be addressed as part of the site plan control application.
48THE TRIBUNAL ORDERS that the Draft Plan of Subdivision appeal section 51(34), shall be adjourned sine die to allow the City and the Appellant to finalize the approval conditions and to provide them to the Tribunal.
49THE TRIBUNAL ORDERS that the s. 69(3) appeal protesting the levying of fees in relation to the application for a zoning by-law amendment, shall be adjourned sine die and be brought forward with the Draft PoS for the Tribunal’s consideration unless otherwise notified of the appeal withdrawal or settlement by the Parties.
50The Panel Member will remain seized for reviewing and approving the final draft of the Zoning By-Law Amendment and issuing the Final Order.
51If 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 [47] above have been satisfied, and do not request the issuance of the Final Order by Monday, January, 2, 2024, then 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, and/or in the event 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.
52The 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.
“D. Chipman”
D. CHIPMAN 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.
Attachment 1