Queen and Brock Holdings Inc. v. Toronto (City), 2023 CanLII 69369

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

July 27, 2023

CASE NO(S).:

OLT-22-002167

(Formerly PL210165)

OLT-22-002237

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

Applicant and Appellant:

Queen and Brock Holdings Inc.

Subject:

Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment

Description:

To permit a 9-storey mixed use building

Property Address:

1354-1360 Queen Street West and 8-14 Brock Avenue

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT-21-002167

Legacy Case No.:

PL210165

OLT Lead Case No.:

OLT-21-002167

Legacy Lead Case No.:

PL210165

OLT Case Name:

Queen and Brock Holdings Inc. v. Toronto (City)

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

Applicant and Appellant:

Queen and Brock Holdings Inc.

Subject:

Application to amend Zoning By-law No. 438-86 - Refusal or neglect of City of Toronto to make a decision

Description:

To permit a 9-storey mixed use building

Property Address:

1354-1360 Queen Street West and 8-14 Brock Avenue

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT-21-002170

Legacy Case No.:

PL210166

OLT Lead Case No.:

OLT-21-002167

Legacy Lead Case No.:

PL210165

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Appellant:

Queen and Brock Holdings Inc.

Subject:

Objection to designating by-law 937-2021

Property Address:

1354-1360 Queen Street West

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT Lead Case No.:

OLT-22-002237

OLT-22-002237

OLT Case Name:

Queen and Brock Holdings Inc. v. Toronto (City)

Heard:

April 3, 2023 by video hearing

APPEARANCES:

Parties

Counsel/Representative

Queen and Brock Holdings Inc.

E. Costello and Meaghan Barrett

City of Toronto

M. Longo

DECISION DELIVERED BY JATINDER BHULLAR AND INTERIM ORDER OF THE TRIBUNAL

1This was a hearing in the matter of appeals made by Queen and Brock Holdings Inc. (Applicant) under subsections 22(7) and 34(11) of the Planning Act. The Appeals were brought because of the City of Toronto’s (“City”) failure to adopt an Official Plan Amendment (“OPA”) proposed by the Applicant and a failure to make a decision with respect to the Applicant’s Zoning By-law Amendment (“ZBA”) application.

2The Applicant is the owner of the entirety of two parcels of land located at the northwest corner of Queen Street West and Brock Avenue and with frontage on Abbs Street to the north. The contiguous lands are currently known municipally as 1354-1360 Queen Street West and 8-14 Brock Avenue (“Site”).

3The Applicant proposes to redevelop the Site as consisting an 11-storey mixed-use development with an overall height of 38.6 metres (exclusive of mechanical penthouse) that incorporates the primary (south) façades of 1354-1360 Queen Street West and the east façade of 1354 Queen Street West with additional stepbacks above. It contains a total gross floor area of 11,112 square metres, including 10,726 square metres of residential gross floor area and 386 square metres of retail/commercial gross floor area, resulting in an overall density of 6.0 FSI.

4A previous appeal by the Applicant regarding heritage matters has been successfully settled between the Parties and is no longer before the Tribunal at this hearing beyond informing the context of the proposal and the Site’s relationship to its surroundings.

WITNESSES

5The Applicant presented three witnesses as follows;

• Ralph Giannone to provide opinion evidence in the area of architecture and urban design;

• Michael McClelland to provide evidence in the area of heritage architecture and heritage planning; and,

• Peter Smith to provide opinion evidence in the areas of land use planning and urban design.

6The City called two witnesses as follows;

• Victoria Fusz to provide opinion evidence in the area of land use planning,

and

• Kevin Lee was provisionally qualified on consent of the parties to provide opinion evidence in the area of urban design based on his practical experience. Mr. Lee indicated no professional affiliations or training in this regard. Whereas he has training as an architect, he confirmed he has never worked as a professional architect.

EVIDENCE

7Mr. Giannone reviewed the original nine storey proposal and the proposed final 11 storey design. He testified that the change in part reflected the viable incorporation of heritage preservation and planning aspects agreed to between the City and the Applicant.

8Mr. Giannone opined that the configuration at 11 storeys is more appropriate versus if the same were to be considered for a mid-block development. He based this on his description of the subject development as a corner lot; i.e., the corner of Brock Avenue and Queen Street West. He also added that the Site is deeper than any other lot along this part of Queen Street West, with a depth of approximately 60 metres.

9Mr. Giannone opined that principal elevations of 1354 Queen Street West were incorporated into the building design to replace the contemporary base building element originally proposed to anchor the corner of Queen Street West and Brock Avenue.

10Mr. Giannone opined that the proposal is a good example of a property that is appropriate to accommodate a higher mid-rise building which can be deployed in a prominent location and massed on the property in a manner which is sensitive to adjacent lower rise properties.

11Mr. Giannone concluded that from an architectural perspective, the proposal balances heritage considerations with an appropriate and well deployed amount of density on the Site. The Revised Proposal introduces contemporary architecture in a series of elements which anchor and balance this prominent heritage corner. Finally, the mass and density has been deployed on the Site so as to mitigate impacts on the adjacent neighbourhood, and the proposal has been carefully designed at the ground floor to enhance the public realm and reduce impacts from the development.

12Mr. McClelland provided inputs with respect to the heritage aspects of the underlying property. He stated that it was a good solution for heritage aspects as per the agreement between the Applicant and the City. Mr. McClelland opined that as proposed it will provide a positive contribution to the neighbourhood.

13Mr. McClelland stated that streetscape is a very important experience for pedestrians.

14Mr. McClelland was questioned by the City regarding his evidence being more factual as there were no heritage issues before the Tribunal. Regardless, Mr. McClelland in reply, emphasized the extensive work carried out beneficially and in good faith by the Applicant in getting due diligence and exploratory work carried out to preserve the heritage and finding best treatments; e.g., tuck pointing; and methodologies to establish solutions recognizing of the heritage character through determining suitable architecture features and setback arrangements as established by Mr. Giannone.

15Mr. McClelland concluded that the primary elevations on each of the properties will be restored and conserved in situ and incorporated into a new contemporary mixed use building which has been designed with appropriate stepbacks from these heritage elevations and which will incorporate a restrained set of materials in a palette complimentary to the heritage attributes on the Site.

16Mr. Smith referred to the evidence of Mr. Giannone and opined that the building design is distinctive, responds to the evolving built from context of Queen Street West as an Avenue, and has been designed to animate the pedestrian realm along Queen Street West and Brock Avenue. He testified that this design is well articulated, with numerous stepbacks that will create appropriate built form relationships to the adjacent Neighbourhood and to the heritage attributes on and adjacent to the Site.

17Mr. Smith testified that for massing, the base of the building has been designed to reflect the character and scale of the existing buildings fronting Queen Street West and the surrounding Parkdale neighbourhood and has been designed and programmed in a manner that appropriately responds to the low-scale character of the Neighbourhood to the north and the low-rise commercial character to the west.

18Mr. Smith further highlighted his testimony as follows:

• The development is proposed to contain six 3-bedroom townhouse units with direct access from Brock Avenue and Abbs Street. The building height steps up to 4 storeys and the massing is broken up with incremental stepping that creates a transition down towards the adjacent Neighbourhood.

• The proposal includes the retention of the primary (south) façades of 1354- 1360 Queen Street West and the east façade of 1354 Queen Street West, while removing and replacing 8-14 Brock Avenue to accommodate the new construction. The reconstructed storefronts along the Queen Street West frontage will reflect the low-rise scale of the surrounding Parkdale Main Street and will maintain at-grade commercial uses along the Avenue. Consistent with the Original Proposal, the corner of Queen Street West and Brock Avenue is marked by a recessed ground floor corner entry, reinforcing the building’s relationship to the intersection and reflecting the design of the original building at 1354 Queen Street West, while animating the intersection.

• Along Queen Street West, the base building is built to the lot line and provides for an expanded sidewalk clearway of 2.4 metres. Along Brock Avenue, planting strips have been introduced along the street. The proposal maintains a sidewalk clearway of 2.1 metres along Brock Avenue. Along Abbs Street, the sidewalk zone has been slightly expanded from 1.9 metres to 2.1 metres.

• Above the base building, the massing has been modified to appropriately respond to the heritage fabric below. On the south elevation, the proposed development incorporates a 5.0 metre stepback above the second storey, and an additional 3.0 metre stepback at Level 10. This design strategy ensures that the building base maintains its relationship to the street, established by the existing buildings, while also mitigating potential visual impacts to the public realm along Queen Street West.

• As a result of the width of the Abbs Street right-of-way, the building would be set back between approximately 9.1 and 21.1 metres from the closest lot within the Neighbourhoods designated lands to the north

• Vehicular access to the building’s loading and parking areas is provided from a driveway off of Abbs Street. With respect to vehicular parking, the revised proposal includes 36 vehicular spaces, all of which are proposed for residents (0.21 spaces/unit), while 8 are proposed to be equipped with electric vehicle charging equipment. All of the parking spaces would be provided below grade within one level of underground parking.

o The proposal includes 178 bicycle parking spaces, including 156 long-term bicycle parking spaces to serve the future residents, 18 short-term bicycle parking spaces for residential visitors and 4 bicycle parking spaces for retail patrons.

19Mr. Smith reviewed the top-down hierarchy of planning framework and opined in detail that the proposal suitably and appropriately meets all requisites. Mr. Smith also addressed all issues in the Procedural Order (“PO”). Some of his key testimony is extracted/noted below:

• The proposal has regard for section 2 of the Planning Act as it supports or provides for;

o the orderly development of safe and healthy communities;

o the adequate provision of a full range of housing, including affordable housing;

o the conservation of features of significant architectural, cultural and historical interest;

o the appropriate location of growth and development;

o the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; and

o 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.

• The proposal is consistent with Provincial Policy Statement 2020 (PPS 2020) as it provides for residential intensification, the efficient use of land and infrastructure, and cultural heritage conservation.

• The proposal conforms with the Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”). The policies conformed with and associated aspects include:

o Site is part of a “strategic growth area” pursuant to the Growth Plan (i.e., a focus for accommodating intensification and higher-density mixed uses in a more compact built form). “Strategic growth areas” include urban growth centres, major transit station areas, and other major opportunities that may include infill, redevelopment, brownfield sites, the expansion or conversion of existing buildings, or greyfields. Lands along major roads, arterials, or other areas with existing or planned frequent transit service may also be identified as strategic growth areas.

o The Growth Plan defines “frequent transit” as “a public transit service that runs at least every 15 minutes in both directions throughout the day and into the evening every day of the week”. In this respect, the subject site is located on a major arterial road and is adjacent to existing frequent transit service i.e., the 501 Queen streetcar route, which offers service every 10 minutes or less every day.

• The proposal conforms with City Official Plan except for the requested OPA. The key aspects noted are;

o The Mixed Use Areas designation applies to the majority of the subject site, occupying a depth of 38 metres. Based on the depth of the subject site (approximately 61 metres), the Mixed Use Areas designation applies to approximately 62% of the subject site, with the remaining 38% falling within the Neighbourhoods designation. Further, as stated in Policy 5.6(5), the boundaries of land use designations on Maps 13-23 inclusive are general except where delimited by a defined Secondary Plan or area specific policy, or where they coincide with fixed distinguishable features such as roads, public laneways, utility corridors, railroads, watercourses or other clearly defined physical features.

o The Mixed Use Areas designation is one of four land use designations intended to accommodate most of the increase in jobs and population anticipated by the Official Plan’s growth strategy. As set out in Section 4.5 of the Official Plan, the intent of the designation is to achieve a multitude of planning objectives by combining a broad range of residential, office, retail and services, institutions, entertainment, recreation and cultural uses, as well as parks and open spaces.

o As set out in Section 4.1 of the Official Plan, Neighbourhoods are considered physically stable areas made up of residential uses in lower scale buildings such as detached houses, semi-detached houses, duplexes, triplexes and townhouses, as well as interspersed walk- up apartments that are no higher than four storeys. The Neighbourhoods designation also permits low scale institutions such as places of worship, community centres and schools.

o Policy 4.1(1) states that Neighbourhoods are considered physically stable areas made up of residential uses in lower scale buildings such as detached houses, semi-detached houses, duplexes, triplexes and townhouses, as well as interspersed walk-up apartments that are no higher than four storeys. The Neighbourhoods designation also permits low scale institutions such as places of worship, community centres and schools.

o An Official Plan Amendment is required to redesignate the northerly portion of the subject site from Neighbourhoods to Mixed Use Areas as the northerly portion of the proposed building is taller than the 4-storey height permitted by the Neighbourhoods designation applying to the portion of the site. The Official Plan Amendment is also proposed in order to permit the underground parking garage to extend into the Neighbourhoods portion of the site.

• Proposed OPA 445 would amend Chapter 7 of the Official Plan to introduce a new Site and Area Specific Policy for the lands fronting on Queen Street West between Roncesvalles Avenue and Bathurst Street (SASP 566). While OPA 445 is not determinative, the proposal application was made prior to the adoption of this OPA 445 and the policy is also under appeal. The proposal has in spite regard for this in respect of the following;

o In locations such as Avenues which are planned for intensification, the planned context should prevail. In this regard, recent approvals and proposals within the Parkdale Main Street area provide for greater height than what would be permitted by SASP 566.

o Proposed Policy 3.3 states that Boulevard Spaces will be prioritized for public realm improvements that expand landscaped space and increase active uses within the publicly- owned boulevard. Where appropriate, development of properties adjacent to Boulevard Spaces will consider expansion of these spaces through building setbacks, easements or conveyances, while ensuring the development is compatible with the immediate heritage context. In my opinion, the proposal is in keeping with the proposed policy directions for Boulevard Spaces.

o The proposed development is not in keeping with the proposed policy directions in Policies 5.3, 5.4 and 5.5. In my opinion, the policies are not appropriate Official Plan policies, in part because they are expressed as numerical regulations (relating to height, stepbacks or setbacks, etc.). They do not recognize site-specific conditions or provide flexibility for site-specific design solutions e.g., the potential for larger and deeper corner lots, such as the subject site, to accommodate greater height and density. That being said, it is noted that the proposed building stepbacks are generally in keeping with Policies 5.4 and 5.5, with the exception that the upper stepback facing Queen Street will be above Level 9, rather than above Level 5. In this regard, I will rely on the evidence of Ralph Giannone. In addition, the revised conservation approach for the subject site was endorsed by the City through City Council’s adoption of the recommendations contained in the May 27, 2022, Report for Action from the City Solicitor.

o The draft policies propose a 9.0 metre rear setback from adjacent Neighbourhoods properties, inclusive of any public laneway, and an additional 3.0 metre stepback above a height of 16.5 metres. In my opinion, the proposal is in keeping with these proposed built form directions.

o Proposed Policy 5.9 further requires that, where possible, access to site servicing and parking will be provided at the rear of the subject site from a lane or a shared driveway and any access stairs and garbage collection/storage and loading areas will be incorporated inside the building. In my opinion, the proposal is in keeping with these proposed built form directions.

o Proposed Policy 7.3 provides that, in new developments, with the exception of lobby entrances, residential uses, will not be permitted on the ground floor along street frontages. Further, on corner properties, proposed Policy 7.4 provides that residential lobbies will not be permitted on the Queen Street West frontage. In my opinion, the proposal is generally in keeping with these proposed built form directions.

o Proposed Policies 8.1 and 8.2 seek to ensure that the configuration of street level commercial uses and residential uses above maintain the general scale and width of existing storefronts along Queen Street West. Proposed Policy 8.3.2 encourages new development on corner properties to incorporate recessed building entrances for ground floor commercial spaces and proposed Policy 8.3.3 encourages new development to incorporate chamfered corners at building entrances and storefronts. In my opinion, the proposal is in keeping with these proposed built form directions.

o Section 11 of the proposed SASP states that the conservation and enhancement of the historic character of Queen Street West is a primary objective of the SASP. Proposed Policy 11.1 indicates that development proposed on, or adjacent to, a designated heritage property or a property listed on the City’s Heritage Register will require additional consideration and design solutions to conserve the cultural heritage values, heritage attributes and character of these properties. In my opinion, the proposal is in keeping with these proposed heritage policy directions. In this regard, I will rely on the evidence of Michael McClelland.

• Avenues and Mid-Rise Buildings Study (the “Mid-Rise Guidelines”), as set out in Sections 4.8, 5.4 and 5.5 of our Planning and Urban Design Rationale report. In my opinion, the proposed development is generally in keeping with the intent of these Guidelines.

• In consideration of City-wide Zoning By-law 569-2013 the south part of the subject site CR 2.5 (c1.0; r2.0) SS2 (x1766), with a maximum height of 14.0 metres. The CR Zone permits a range of commercial uses including offices, personal service shops, retail stores, eating establishments and take-out eating establishments. Residential uses in the form of dwelling units in an apartment building and a mixed-use building, as well as residential care homes and retirement homes, are also permitted. The maximum permitted density is 2.5 FSI, including a commercial FSI of 1.0 and a residential FSI of 2.0.

o Exception CR 1766 provides for site-specific parking rates in accordance with the former MCR zoning and provides that Section 12(2) 270 of former City of Toronto By-law 438-86 (as described above) will continue to prevail.

o The north part of the subject site is zoned R (d1.0) (x803), with a maximum height of 10.0 metres. The R zone permits residential uses in various building types, including apartment buildings, as well as a limited number of non-residential uses including day nurseries, places of worship, and retail stores. The maximum permitted density is 1.0 FSI.

o Exception R 803 permits nursing homes, retirement homes, religious residences, community centres and libraries, subject to specified conditions.

o The proposed Zoning By-law Amendment would rezone the entirety of the subject site to CR and would introduce site-specific performance standards to permit the proposed development.

20Mr. Smith also testified that:

• The proposed development provides for appropriate transition to adjacent areas in terms of height and scale as required in the Official Plan. Notably, proposed SASP 566 includes an area-specific approach to transition that differs from the 45-degree angular plane that is commonly used as a default approach in many areas of the City; specifically, the policy would permit a height of 16.5 metres with a 9.0 metre setback from an adjacent Neighbourhoods-designated property i.e., equivalent to a 61.5-degree angular plane. The proposed height (38.6 metres) and setback from the Neighbourhoods (21.1 metres) respects this angular plane.

• Guideline #1 with respect to overall building height provides for “a maximum mid-rise height” of 11 storeys (36 metres) on Avenues. Similarly, the Official Plan recognizes mid-rise scale development as “a transit-supportive form of development” and that the heights of mid-rise buildings are “contextual” and “informed by the width of the right-of-way onto which they front” and may vary between four and 11 storeys.

• While both the Mid-Rise Building Guidelines and the Official Plan generally limit mid-rise heights to the width of the Avenue right-of-way, there are numerous examples of taller mid- rise buildings that have been approved throughout the City. (See Issue #11 below.) In my opinion, the development has appropriate regard to the applicable City of Toronto Mid-rise Building Performance Standards through the application of setbacks and stepbacks to Queen Street West, as well as to the neighbouring properties to the north.

• The proposed development represents good and appropriate land use planning and urban design, having regard to matters such as the existing and planning context, and appropriate building height, floor plate and building setbacks and stepbacks with regard to shadow and sky view impact on the public realm.

• In locations such as Avenues which are planned for intensification, the planned context should prevail.

• The planned context as proposed through SASP 566 includes requirements for setbacks and stepbacks along Queen Street, Brock Avenue (the side street) and Abbs Street (rear transition to Neighbourhoods). At Levels 1-5, the proposed building meets the recommended stepbacks (and, in some cases, provides greater stepbacks and/or at lower heights). While recognizing that greater height is being proposed, these design moves in combination with the conservation of the heritage structures will help to ensure that the building will fit with the planned context envisaged through SASP 566.

• In my opinion, the proposed building height, floor plate and building setbacks and stepbacks are appropriate as they would adequately limit shadow impacts on the Neighbourhoods designated properties to the north, as well as appropriately limit sky view impacts on the public realm along Queen Street West and Brock Avenue.

• A tenant assistance plan has been provided.

21Mr. Fusz reviewed key elements of the original proposal and the proposal before the Tribunal. She summarized it as follows:

Initial Submission September 29, 2020

With Prejudice Settlement Offer April 25, 2022

Revised Proposal December 23, 2022

Building Height

9-storeys, 36.2 m

11-storeys, 42.9 m

11-storeys, 43.58 m

Gross Floor Area

Res: 9,160.6 m2 Non-Res: 538.8 m2 Total: 9,699.4 m2

Res: 10,907.5 m2 Non-Res: 479.2 m2 Total: 11,386.7 m2

Res: 10,726 m2 Non-Res: 386.1 m2 Total: 11,112.1 m2

Floor Space Index

5.2

6.2

6.0

Residential Units

Studio: 6 1- Bedroom: 75 2- Bedroom: 23 3- Bedroom: 13 Total: 117 units

Jr 1-Bedroom: 8 1- Bedroom: 77 2- Bedroom: 41 3- Bedroom: 16 Total: 142 units

Jr 1-Bedroom: 31 1- Bedroom: 78 2- Bedroom: 44 3- Bedroom: 19 Total: 172 units

Amenity Space

Indoor: 234 m2 Outdoor: 234 m2

Indoor: 457.6 m2 Outdoor: 110.4 m2

Indoor: 544.9 m2 Outdoor: 122.2 m2

Vehicular Parking Spaces

Resident: 38

Resident: 36

Resident: 36

Bicycle Parking Spaces

Short-Term: 12 Long-Term: 106 Total: 118 spaces

Short-Term: 20 Long-Term: 128 Total: 148 spaces

Short-Term: 22 Long-Term: 156 Total: 178 spaces

22Mr. Fusz opined that there were policy concerns and issues with the proposed development. The following is excerpted or otherwise noted in this context:

• The streetwall character of Queen Street West is a product of the area's evolution as a main street and the redevelopment of the area is to "fit" that context, with OPA 445 more clearly articulating the performance standards that would result in development that "fits" the area's context.

• Although the subject site is an appropriate location for growth and development as identified in the City's Official Plan, growth and development is still expected to occur in a manner that fits within the existing and planned context and is well- designed. The proposed development represents the over development of the lot as it fails to appropriately respond to the existing and planned context and does not represent a well-designed built form that encourages a sense of place as it does not relate appropriately to the scale of the historic Queen Street West.

• Although currently under appeal, Council's adoption of the OPA 445 represents Council's expectations for new development within the SASP area, which is to support opportunities for contextually appropriate growth and change. For the Parkdale Main Street area in particular, it's to continue its role as a mixed-use main street with the form and character of new buildings and additions to existing buildings relating appropriately to the scale and historic character of Queen Street West, while supporting incremental growth.

• The subject site is an appropriate location for intensification, the proposed building height and massing fails to comply with the Official Plan's objective for development that is to be located and massed to fit within its existing and planned context. The existing context does not contemplate the level of intensification the Application seeks, particularly from a building height perspective. Additionally, OPA 445 is informative, not determinative, of context- appropriate intensification and does not contemplate the building height the Application proposes.

• The Application is consistent with the PPS, however, the Application, mainly the proposed building height and massing, does not conform to the policies of the Official Plan

• The proposed development, Official Plan Amendment, and Zoning By-law Amendment largely conform with the Growth Plan.

• Policy 2.2.3.1 of the City’s OP states that urbanization of the Avenues will be achieved through the preparation of Avenue Studies for strategic, mixed-use segments of the corridors shown on Map 2. Through OPA 445 and its implementing by-law, the type and form of contextually appropriate development is determined and was created in consultation with the local community.

• Although under appeal, OPA 445 is informative of the type of development that is appropriate along the segment of Queen Street West where the subject site is located. OPA 445 directs that new development and additions on existing buildings will have a maximum overall height of six- storeys, being 20 metres, whereas the Application proposes a height of 11-storeys and 43.58 metres.

• While the revised application incorporates some stepping in the rear, the eleventh floor still extends within the portion of the subject site designated Neighbourhoods. The scale of the proposed development within lands designated Neighbourhoods is not contextually appropriate and does not provide a gradual transition of scale and density towards adjacent Neighbourhood-designated lands.

• The existing context surrounding the subject site is generally comprised of low rise buildings that do not exceed four-storeys in height and the planned context, through OPA 445, are contextually appropriate mid-rise buildings, along Queen Street West, that do not exceed six-storeys in height.

• The proposed building height of 11-storeys is neither reflective of the existing nor planned context. In May of 2022, City Council adopted a Zoning By-law Amendment at 1488 Queen Street West to permit a six-storey and 20 metre mixed-use building. Additionally, a context emerging from two recent City Council-supported and Tribunal- approved settlements of development applications along Queen Street West, between Dufferin Street and Roncesvalles Avenue, are buildings with heights of seven-storeys and eight-storeys, excluding the mechanical penthouse and amenity area. Although these buildings do not conform to the height permissions of OPA 445, these developments were considered to be contextually appropriate given each proposal's overall massing, distribution of density across the site, conformity with the land use designation policies of the Official Plan, and building transition along Queen Street West and the rear of these sites.

• If approved, the proposed building would have a greater height and massing than any other building fronting Queen Street West within this segment of the street, which could set a negative precedent for future development in the area and would negatively impact the historic character of the Queen Street West streetscape.

• The draft Official Plan Amendment submitted in support of the Application proposes to redesignate the rear portion of the subject from Neighbourhoods to Mixed Use Areas. The proposed redesignation of these lands would create a pattern of development (the consolidation of Neighbourhood lands to Mixed Use Areas) that is not contemplated in the Official Plan, nor OPA 445. In extending the depth of the Mixed Use Areas designation, the resulting massing and scale of the proposed building fails to fit within the surrounding existing and planned context.

• The proposed development does not appropriately transition within the extent of the Mixed Use Areas to the adjacent Neighbourhood designated lands to the north and west of the subject site which is largely comprised of low scale residential buildings with heights ranging between one and three-storeys. Issues related to transition are, in part, a result of the proposed building height.

• The consolidation of Neighbourhood properties and the proposed redesignation of those properties to Mixed Use Areas is not encouraged by OPA 445. The unconformity of the built form proposed through the Application is worsened, in part, as a result of the consolidation of Neighbourhood properties.

• OPA 445 ultimately directs a maximum building height of six-storeys and 20 metres, whereas the Application proposes a building height of 11-storeys and 43.58 metres. The proposed building height would have the effect of negatively impacting the surrounding area as a result of the proposed building's mass and scale.

• Despite my overall opinion that the Tribunal should refuse the appeal before it, the conditions identified in issue 14 are appropriate for implementing any approvals. I will speak to these conditions in my evidence.

23The Tribunal confirmed at the hearing that it will not convert a provisional qualification accorded to Mr. Lee to full qualification in the area of urban design or urban planning. The provisional qualification was granted in consideration of the possible veracity and suitability of his testimony at the hearing.

24The testimony presented by Mr. Lee lacked depth, objectivity and at times was anchored by repeatedly reciting policies without associated supportable urban design or urban planning context and interpretation. Hence the evidence and testimony of Mr. Lee is accorded lesser weight as it relates to other witnesses so duly qualified including Mr. Smith.

25Mr. Lee testified that his key concern was related overall height, which represented an overdevelopment of the Site. The massing above the streetwall does not fit with the existing or planned context on the adjacent streets and it will create negative visual impact on the public realm.

26Mr. Lee also testified that the proposed design falls short in considering its relationship with the neighbouring properties on all four sides of the Site.

27Some additional testimony of Mr. Lee is noted or excerpted as follows:

• The proposal maintains the existing heritage street wall condition on the lower podium through conservation of the existing heritage buildings from the Queen Street West frontage. While the retention of the heritage base buildings retains the original streetwall on the site there is not enough shaping of the mass above that point to provide good street proportion and "fit" along this segment of Queen Street West.

• The height and overall mass of the building will negatively impact the surrounding public realm and its neighbours. The 11-storey, 38.5 metres plus 5 metre tall mechanical height will create a street proportion that is not consistent with the surrounding context on Queen Street West. Queen Street West is a narrow avenue with a 20 metre width. The existing context is 3-storey historic commercial row buildings. The planned context for this area should be reviewed in the context of the Official Plan and informed by the Council-adopted SASP 566 and city-wide Mid-rise Performance Standards, which establishes 20 metres as the maximum allowable height along the street. The proposed height exceeds the existing planning framework by a significant margin and the building massing will not fit with the strong main street existing and planned context of Queen Street West.

• The extent of the building above the podium is overwhelming the 2-3 storey base. The dense mass of the building of the upper levels is diminishing the read of the lower base visible from the public realm with its scale. For this reason, I opine that the proportion of the upper facade does not fit with the low-scale adjacent building facades on Queen Street and Brock Avenue

• The proposal does not meet this policy, which states that the maximum height of new buildings should be 6 storeys, 20 metres, excluding the mechanical element on the roof. The building height of the proposal is 11-storey or approximately 38.6 metres without the 5-metre tall mechanical penthouse. While this policy does not need to be conformed to (as the policy remains under appeal) the degree the application diverges from this standard and the stated goals of OPA 445 is significant. In my opinion, this condition does not fit in both the broader and immediate contexts along Queen Street West.

• By failing to fit within the existing and planned context, or create good relationships to other buildings adjacent to the Site, and negative impacts on the public realm with the creation of an inconsistent street proportion, collectively the proposal fails to provide visual cohesion through massing and therefore does not conform with SASP 566 or achieve its objectives.

• The proposal does not maintain the intent of the City-wide Mid-rise Building Performance Standards. The proposal is inconsistent with the guidelines in terms of maximum building height, setbacks, step backs as well as the relationship of the proposal to the surrounding public realm.

• The height of the proposal protrudes the angular plane which is capped at the height of 20 metres as per the guidelines, and the proposal is attempting to setback the overwhelmingly tall building from the Neighbourhoods by introducing the number of stepbacks. In my opinion, this condition is not an appropriate way of making a transition in scale to the low scale Neighbourhoods to north.

• The non-compliance with this guideline further emphasizes the excessive development of the proposal. Even with the multiple stepbacks from the Brock frontage, the proposed height of 11 stories represents unacceptable visual impact and will restrict access to sunlight and skyview.

• In its current form, the proposal fails to be consistent and would not fit with the existing and the planned context. The proposed height is too tall to fit within the Parkdale Main Street character area identified by SASP 566, and its height and lack of adequate stepbacks do not provide adequate built form transition to the low-scale Neighbourhoods to the north.

• Proposed stepbacks are not adequate to push the tall massing from the low-scale area to north to provide gradual transition of scale and density. Despite the number of proposed stepbacks away from the streets and the Neighbourhoods, the proposal’s height will not frame the very narrow streets with good proportion. The intensity and scale of the proposal will also fail to maintain the equal level of light and shadow that would have been created by a building which conforms to the policies of the OP and the Council’s new direction on built form in the area.

• the proposal does not conform with the policies of the Official Plan. It further fails to achieve the objectives set out in the Mid-rise Design Guidelines, and is contrary to the policies and goals of the under-appeal OPA 445.

• The proposed massing is excessive; the proposed building height does not fit the existing and planned context of the area; the insufficient rear and side building step backs do not provide appropriate transition to the neighbouring properties and provides additional impacts to the north by way of its extending height into the Neighbourhoods lands.

28Mr. Lee also presented some computer-generated modelling results which showed perspectives of the proposal as it would visually relate to possible views along Queen Street West.

ANALYSIS

29There was substantial consensus among the planning witnesses that intensification is appropriate for the Site. Whereas there were subtle and different emphasis on certain aspects of the Planning Act, PPS 2020 and the Growth Plan, and the City OP polices on Avenues, these differences were marginal.

30The primary difference in testimony related to a fit of the proposal within the existing context as well as the planned context as envisaged in OPA 445. Here the dispute was primarily between the evidence on urban design and urban planning.

31Additionally, whereas Mr. Smith cited examples of 11-storey or higher developments in avenues across the City, he stated that he recognizes that Queen Street West has a narrower width. He, however, emphasized that coupled with the proposal being a deep corner lot and with the suitable setbacks and stepbacks, the site is suitable for an 11-storey building as suitably designed in recognition of the heritage character and the mix of low-rise components in the design.

32The evidence of both the City and Applicant planning witnesses supported that the requested OPA which would seek to redesignate one third of the site to Mixed Use Areas was appropriate.

33There was agreement between all witnesses that OPA 445 is not in force and effect and cannot be used for testing conformity. In such situations having regard for is the test. In particular the limits on height of six storeys is primarily driven by the elements in OPA 445.

34It was agreed between the witnesses that there have been approvals of greater than six storeys by the City in the area where OPA 445 is planned to be applicable. There was also a reference to a City owned development of 10 storeys in height on the south side opposite of the proposed development before the Tribunal. It was noted that the City development was further offset towards the south from Queen Street West.

35There was general agreement for the satisfactory provision of tenant assistance packages and the conditions to be met prior to final approvals for the OPA and ZBA being granted.

36The Tribunal notes that Mr. Giannone and Mr. Smith provided exhaustive evidence which demonstrated that with the proposal being a corner property development, a deeper lot, a well recognized and to be kept, as well as to be maintained, historic Queen Street West frontage, there are very positive experiences in the public realm to be expected, notably a revitalization of the Queen Street West and Brock Avenue degenerated and run down neighbourhood.

37Mr. Lee’s evidence based largely on computer modelling failed to establish counter hypothesis of degraded urban design or urban planning aspects in the proposal. Mr. Lee’s overdependence on OPA 445’s future context had little support based on actual approvals based on examples of recent approvals along Queen Street West. Mr. Lee’s graphic visuals at times appeared to highlight non-objective and rather biased choices of angles to be demonstrated or the choice of colours in his graphics. Mr. Lee provided little evidence on impact and details of public realm negative interactions. Mr. Smith conversely provided considerations and showed that the proposal would suitably animate the area around the intersection of Queen Street West and Brock Avenue.

38Mr. Lee provided reference to mid-rise building guidelines and interpreted them rigidly as though these have the planning significance of the City’s OP.

39The Tribunal further notes that Mr. Lee’s evidence on urban design and urban planning was depended upon by the City’s planning witness, Ms. Fusz.

40In weighing the evidence of Mr. Lee against that of Mr. Giannone and Mr. Smith, the Tribunal prefers the evidence of Mr. Giannone and Mr. Smith. This is based on the comprehensive and detailed aspects assessed by the witnesses on behalf of the Applicant, versus Mr. Lee’s evidence that lacked the veracity and detail vis-à-vis urban design and urban planning aspects, and being at times a recital of policies than actual opinion evidence.

41The Tribunal was also informed by the Parties that with request to the Tenant Assistance Plan, they have reached a settlement on this matter in reference to City Official Plan policy 3.2.1.12 (at Ex 6A, T4, p.212).

42Based on the totality of evidence before it the Tribunal finds that the setbacks and stepbacks in the proposal as well as the design with a maximum height with a mix of heritage and low level structures enveloping the overall development including the height of front wall on Queen Street low rise townhouse like façade along Brock Avenue, are appropriate with a maximum height of 11 storeys for part of the footprint of the site.

43The Tribunal based on the totality of evidence before it finds that the proposed OPA and ZBA have regard for the Provincial Interest per s. 2 of the Planning Act, are consistent with PPS 2020, conform with the Growth Plan and the City’s Official Plan except for the OPA as requested, and that the ZBA conforms with the City OP as amended by the requested OPA.

44The Tribunal finds that the conditions for final approval as presented by the Parties and included in the interim Order made by the Tribunal are appropriate before the final approval of the requested OPA and ZBA.

INTERIM ORDER

45THE TRIBUNAL ORDERS THAT the appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 46 below, and the Official Plan Amendment and the Zoning By-law Amendment set out in Attachments 1 and 2, respectively to this Interim Order, are hereby approved in principle.

46The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the [City Solicitor], of the following pre-requisite matters:

(a) The draft Official Plan and Zoning By-law have been reviewed and revised until they have a form and content that is to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.

(b) An updated pedestrian level wind study has been provided to the satisfaction of the Chief Planner and Executive Director, City Planning.

(c) The Appellant has addressed the outstanding comments identified in the memorandum dated March 2, 2023 or as may be updated from the Manager, Development Engineering, Engineering and Construction Services, including an updated Functional Servicing and Stormwater Management Report that addresses staff's concerns.

(d) The Appellant has designed and provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing and Stormwater Management Report and Hydrogeological Assessment to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, should it be determined that improvements or upgrades are required to support the development, according to the Functional Servicing and Stormwater Management Report and Hydrogeological Assessment, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services.

(e) The Applicant has withdrawn its appeal of Official Plan Amendment 445 (Parkdale Main Street and West Queen West Site and Area Specific Policy) and associated Zoning By-laws as they relate to the subject property.

(f) The Applicant has withdrawn its appeal of the Parkdale Main Street Heritage Conservation District Plan as it relates to the subject property and following the inclusion of the subject property on Schedule “F” to the Plan.

(g) Queen and Brock Holdings Inc. has entered into an agreement with the City securing a tenant assistance plan pursuant to policy 3.2.1.12 of the City’s Official Plan, referencing the terms in Schedule 3 to the Reply Witness Statement of Andrew Cohrs, as amended in the evidence presented by Peter Smith (Exhibit 10B). This agreement shall be provided by the City no later than 60 days following the Tribunal’s approval in principle and executed in a form satisfactory to both Parties by no later than 30 days upon receipt.

47The Panel Member 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.

48If 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 46 above have been satisfied, and do not request the issuance of the Final Order, by Friday, October 20, 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 Amendment and issuance of the Final Order by the Tribunal.

49The 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.

“Jatinder Bhullar”

JATINDER BHULLAR

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

Draft Official Plan Amendment

(Draft Official Plan Amendment, February 17, 2023)

Authority: Ontario Land Tribunal Decision issued on

------ n Tribunal File OLT-22-002167

CITY OF TORONTO BY-LAW No. XXXX-2023

To adopt Amendment No. XXX to the Official Plan of the City of Toronto with respect to lands municipally known as 1354 to 1360 Queen Street West and 8 to 14 Brock Avenue

Whereas the Owner of the lands appealed a proposed official plan amendment to the Ontario Land Tribunal pursuant to Section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended; and

Whereas the Ontario Land Tribunal Order issued on --- in File OLT-22-002167

approved amendments to the Official Plan for the City of Toronto with respect to the lands; The Ontario Land Tribunal Orders:

1. The attached Amendment XXX to the Official Plan is hereby in force pursuant to the Planning Act, as amended. Pursuant to Ontario Land Tribunal Order issued on ---- and Ontario Land in File OLT-22-002167

AMENDMENT NO. XXX TO THE OFFICIAL PLAN

LANDS MUNICIPALLY KNOWN IN THE YEAR 2022 AS 1354 TO 1360 QUEEN STREET WEST AND 8 TO 14 BROCK AVENUE

The following text and map constitute Amendment No. XXX to the City of Toronto Official

Plan.

The Official Plan of the City of Toronto is amended as follows:

1. Map 18, Land Use Plan is hereby amended by re-designating the rear portion of the lands known municipally in the year 2020 as 8 to 14 Brock Avenue from Neighbourhoods to Mixed Use Areas, as shown on the attached Schedule A.

ATTACHMENT 2

Draft Zoning By-law Amendment

Authority: Ontario Land Tribunal Decision issued on

---- in Tribunal File OLT-22-002167

CITY OF TORONTO

BY-LAW No. xxx-2023(OLT)

To amend Zoning By-law No. 569-2013, as amended, with respect to the lands municipally known in the year 2022 as 1354 to 1360 Queen Street West and 8 to 14 Brock Avenue.

Whereas the Ontario Land Tribunal, in its Decision issued on [date] and its Order issued on [date], in file OLT-22-002071 in hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P13, as amended, ordered the amendment of Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2022 as 1354 to 1360 Queen Street West and 8 to 14 Brock Avenue.

The Ontario Land Tribunal, by Order amends By-law 569-2013 as follows:

Whereas authority is given to the Council of a municipality by Section 34 of the Planning Act, R.S.O. 1990, c.P. 13, as amended, to pass this By-law; and

Whereas Council of the City of Toronto has provided adequate information to the public and has held at least one public meeting in accordance with the Planning Act;

The Council of the City of Toronto enacts:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law [Clerk to provide By-law No.].

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning

By-law No. 569-2013, Chapter 800 Definitions.

3. Zoning By-law No. 569-2013, as amended, is further amended by amending the Zoning By-law Map in Section 990.10 for the lands subject to this By-law by applying the following zone labels to the lands: to CR 2.5 (c1.0; r2.0) SS2 (x####) as shown on Diagram

2 attached to this By-law [Clerk to provide By-law No.].

4. Zoning By-law No. 569-2013, as amended, is further amended by amending Article

900.11.10 Exception Number ### so that it reads:

(###) Exception CR (###)

The lands are subject to the following Site Specific Provisions, Prevailing By-laws and

Prevailing Sections.

Site Specific Provisions:

(A) On the lands municipally known as 1354 to 1360 Queen Street West and 8 to 14

Brock Avenue, if the requirements of by-law [Clerk to provide By-law No.] are complied with, a mixed-use building, structure, addition or enlargement may be constructed or used if it complies with (B) through (S) below;

(B) The lot consists of those lands shown on Diagram 1 attached to By-law [Clerk to provide By-law No.];

(C) Despite Regulation 40.10.40.1(1), residential use areas may be located on the same storey as non-residential uses;

(D) Despite Regulation 40.10.40.40(1), the permitted maximum total gross floor area

is 11,500 square metres, of which:

(i) the maximum permitted residential gross floor area is 11,000 square metres;

(ii) the maximum permitted non-residential gross floor area is 500 square

metres;

(E) Despite Regulation 40.5.40.10(1) and (2), the height of a building or structure is measured as the vertical distance between the Canadian Geodetic Datum elevation of 95.11 metres and the highest point of the building or structure;

(F) Despite Regulation 40.10.40.10(2), the permitted maximum height of a building or structure is the numerical value, in metres, following the letters HT as shown on Diagram 3 of By-law [Clerk to provide By-law No.];

(G) Despite Clause 40.5.40.10 and (F) above, the following elements of a building or structure may project above the permitted maximum building heights shown on Diagram 3 of By-law [Clerk to provide By-law No.]:

(i) Mechanical penthouse, mechanical elements, elevator over runs, any eaves, canopies, cornices, lighting fixtures, awnings, fences, and safety railings, architectural features, parapets, trellises, balustrades, window sills, window washing equipment, privacy screens, architectural screens, guardrails, chimneys, vents, stacks, terraces, platforms, transformer vaults, wheelchair ramps, retaining walls, ornamental elements, architectural elements, landscaping elements, green roof elements, paving and insulation, outdoor furniture, roof access hatches, planters, and public art features, elements or structures on the roof of the building used for outside or open air recreation, safety or wind protection purposes up to a maximum of 6.0 metres;

(H) Despite Regulation 40.10.40.10(5), the minimum height of the first storey is 3.7 metres;

(I) Despite Regulations 40.10.40.60 and 40.5.40.60(1), and 40.10.40.70(2), the required minimum building setbacks in metres are as shown on Diagram 3 of By- law [Clerk to provide By-law No.];

(J) Despite Regulation 40.5.40.60(1), 40.10.40.60 and (I) above, the following building elements and structures are permitted to encroach into the required building setbacks Diagram 3 of By-law [Clerk to provide By-law No.]:

(i) cornices, light fixtures, ornamental elements, parapets, art and landscape features, patios, decks, pillars, trellises, balconies, terraces, eaves, window sills, bay windows, planters, ventilation shafts, guardrails, balustrades, railings, stairs and stair enclosures, doors, wheelchair ramps, fences, screens, site servicing features, awnings, retaining walls and curbs, monitor wells, bicycle parking and overhead canopies up to a maximum of 4.0 metres;

(K) Despite Regulation 40.10.40.50(1) and (2), a building with 20 or more dwelling units must provide amenity space at the following rate:

(i) at least 3.16 square metres for each dwelling unit as indoor amenity space;

and

(ii) at least 0.71 square metres of outdoor amenity space for each dwelling unit of which 40 square metres must be in a location adjoining or directly accessible to the indoor amenity space;

(L) Despite Regulation 40.10.50.10(2) and (3), a fence and soft landscaping is not required along the lot line abutting the lot in the Residential Zone category;

(M) Despite Regulation 40.10.90.40(2), vehicle access to the loading space may be over the Residential Zone category;

(N) Despite Regulations 200.5.1(1), Table 200.5.10.1, and 900.11.10(2), the following parking provisions apply:

(i) no parking spaces are required for residents;

(ii) no parking spaces are required for residential visitor and non-residential uses. (O) Ingress and egress access to parking spaces below grade may be accessed by a

car elevator;

(P) Despite Regulation 230.5.1, bicycle parking spaces are permitted to be located in all levels of the building and parking garage both above and below average grade. Long term and short term bicycle parking spaces may:

(i) consist of both vertical and horizontal spaces;

(ii) be located in lockers;

(iii) be stacked.

(Q) Despite Regulations 230.5.10.1(1)(3) and (5) and Table 230.5.10.1(1), bicycle parking spaces must be provided in accordance with the following minimum rates:

(i) 0.9 "long-term" bicycle parking spaces for each dwelling unit; (ii) 0.1 "short-term bicycle parking spaces for each dwelling unit;

(R) Despite Regulation 230.5.1.10(10), long-term and short-term bicycle parking spaces may be located in a stacked bicycle parking space having the following minimum dimensions;

(i) minimum length of 1.5 metres;

(ii) minimum spacing of 0.3 metres; and

(iii)minimum overhead clearance of 2.1 metres;

(S) Both long-term and short-term bicycle parking spaces may be located in secure bicycle storage rooms;

Prevailing By-laws and Prevailing Sections: (None apply).

5. None of the provisions of By-law 569-2013, as amended, apply to prevent a temporary sales office on the lot, used exclusively for the initial sale and/or initial leasing of dwelling units proposed on the same lot;

6. Despite any future severance, partition or division of the lands as shown on Diagram 1, the provisions of this By-law shall apply as if no severance, partition or division occurred.

Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order issued on [date]

in Tribunal File OLT-22-002167