111 Strachan Development LP Inc. v. Toronto (City), 2023 CanLII 73686

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 09, 2023

CASE NO(S).: OLT-22-003961

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

Applicant/Appellant: 111 Strachan Development LP Inc.

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

Description: OPA/ZBA to facilitate the redevelopment of the Property with a 14-storey mixed-use building consisting of 314 residential units and retail space

Reference Number: 21 251437 STE 10 OZ

Property Address: 109-127 Strachan Avenue

Municipality/UT: City of Toronto

OLT Case No.: OLT-22-003961

OLT Lead Case No.: OLT-22-003961

OLT Case Name: 111 Strachan Development LP Inc. v. Toronto (City)

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

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

Description: OPA/ZBA to facilitate the redevelopment of the Property with a 14-storey mixed-use building consisting of 314 residential units and retail space

Reference Number: 21 251437 STE 10 OZ

Property Address: 109-127 Strachan Avenue

Municipality/UT: City of Toronto

OLT Case No.: OLT-22-003962

OLT Lead Case No.: OLT-22-003961

Heard: June 16, 2023 by video hearing

APPEARANCES:

Parties

Counsel

111 Strachan Development LP Inc.

M. Foderick D. Angelucci

City of Toronto

D. Elmadany

MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI AND CARMINE TUCCI ON JUNE 16, 2023 AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This matter involves appeals filed by 111 Strachan Developments LP Inc. (“Appellant”) against the City of Toronto’s (“City”) failure to make a decision on Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (“Applications”) pursuant to s. 22(7) and 34(11) of the Planning Act (“Act”) within the prescribed timeframe. The Applications apply to the lands known municipally as 109-127 Strachan Avenue ("Subject Lands") located at the southeast corner of Strachan Avenue and Adelaide Street West.

2The OPA proposes to amend the City of Toronto Official Plan (“TOP”) to redesignate the Subject Lands from ‘Neighbourhoods’ to ‘Mixed Use Areas’. The ZBA proposes to re-zone the lands from ‘Industrial – I1 D3’ under the former City Zoning By-law No. 438-86, as amended (“ZBL 438-86”), to ‘Commercial Residential – CR SS2’ under the City-wide Zoning By-law No. 569-2013, as amended (“ZBL 569-2013”), with site-specific permissions to facilitate the redevelopment of the lands with a 14-storey mixed-use building consisting of 314 residential units and 339 square metres (“sq m”) of retail space. The site-specific permissions will also allow for 143 vehicle parking spaces, 323 bicycle parking spaces, and a gross floor area of 21,322 sq m (20,983 sq m of residential and 339 sq m of commercial retail) resulting in a floor space index (“FSI”) of 6.41.

3The Subject Lands are generally rectangular in shape with an approximate area of 3,327 sq m and are bounded by Strachan Avenue to the west, Adelaide Street West to the north, a public laneway known as ‘Lane E Strachan S Adelaide’ to the east and a laneway to the south. The lands are currently developed with three buildings and surface parking. The buildings consist of a three-storey mixed-use building (“Heritage Building”) constructed in 1878 and designated under the Ontario Heritage Act (“OHA”), and two one-storey commercial buildings.

4The Subject Lands are surrounded by three-storey townhouses to the west, two-storey dwellings to the north, a one- to four-storey commercial building and rear parking and backyards of two-storey dwellings to the east, and a three-storey commercial building to the south. The building to the south is to be incorporated into an approved 14-storey mixed-use development with an FSI of 9.17. A 16-storey mixed-use building with an FSI of 9.33 is proposed further southwest and a number of mid-rise residential and commercial buildings are located to the northeast along Adelaide Street West and Richmond Street West, including a 3.5-storey commercial building, a six-storey affordable rental housing building, and a 4.5-storey townhouse complex.

5The Application was filed with the City on December 23, 2021 and deemed complete as of December 28, 2021. The Appellant filed a revised submission on December 16, 2022 subsequent to community consultation and in response to feedback received through the review of the original proposal. The revised application incorporated improvements to the public realm to allow for increased pedestrian space and landscaping as well as the following:

• a reduction in the number of storeys,
• an increase to the building step-backs,
• an increase to the south yard setback,
• an increase in the total amount of amenity space,
• an increase in the number of three-bedroom units,
• the removal of an underground parking level,
• a reduction in the number of vehicular parking spaces, and
• an increase in the number of bicycle parking spaces.

6The Appellant also filed a Site Plan Application with the City, which has not been appealed to the Tribunal. The Site Plan was made available to the Tribunal to provide context to the proposed development that the OPA and ZBA will facilitate.

7The Tribunal received correspondence from the Appellant in advance of the hearing advising that the Parties have reached a settlement and requesting that the Tribunal convert the proceedings to a settlement hearing. The Parties in attendance confirmed that they consented to the conversion of the proceedings.

8In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.

9The Parties further advised the Tribunal that they were seeking approval in principle for the proposed OPA and ZBA based on the settlement (“Settlement Proposal”), pending receipt by the Tribunal of the OPA and ZBA in final form and content satisfactory to the City, as well as confirmation of certain pre-requisite matters having been fulfilled by the Appellant.

LEGISLATIVE FRAMEWORK

10When considering appeals filed pursuant to s. 22(7) and 34(11) of the Act, the Tribunal must have regard to the matters of provincial interest pursuant to s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Applications conform with the TOP.

11In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Applications represent good land use planning and are in the public interest.

SUBMISSIONS

12Prior to the commencement of the hearing, the Tribunal received the Affidavit of Amy Shepherd in support of the settlement. The Tribunal qualified Ms. Shepherd, on consent, to provide opinion evidence pertaining to this matter in the area of land use planning.

13With respect to the regulatory and policy context, Ms. Shepherd opined that the Applications have regard for the applicable matters of provincial interest pursuant to s. 2 of the Act and support the higher-level policies in the PPS and the Growth Plan including policies pertaining to the efficient use of urban land with existing services and planned or existing transit, policies for meeting a broad range of housing types and densities, the provision of a complete community as well as incorporating and preserving heritage resources.

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

14It is Ms. Shepherd’s opinion that the Settlement Proposal meets the following applicable matters of provincial interest in s. 2 of the Act:

d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;

h) the orderly development of safe and healthy communities;

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

p) the appropriate location of growth and development;

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

r) the promotion of built form that,

(i)is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

In her opinion, the Settlement Proposal has regard for these matters as it represents orderly development providing a range of housing in an appropriate location with careful regard for intensification of the site. In addition, the Subject Lands are well serviced by community services including schools and parks and are proximate to public transit. She opined that the Settlement Proposal is well designed, provides an opportunity for a healthy public realm, encourages a sense of place, and provides for the preservation of the Heritage Building.

PPS

15In her Affidavit, Ms. Shepherd further opined that the Settlement Proposal is consistent with the PPS, and in particular, supports policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.3.1, 1.4.3, 1.5.1, 1.6.3, 1.6.7, 1.7.1, 1.8 and 2.6.1, pertaining to ‘efficient development and land use patterns’, accommodating a range of housing types, residential intensification, densities and mix of land use that efficiently use resources, infrastructure and services, which are transit-supportive and promote active transportation, and which support long-term economic prosperity, and the conservation of significant built heritage resources.

Growth Plan

16In her Affidavit, Ms. Shepherd further opined that the Settlement Proposal conforms with the Growth Plan, and in particular, policies 2.2.1(2)(c), 2.2.1(3)(c), 2.2.1(4), 2.2.2(3), 2.2.5.3, 2.2.6(2), 2.2.6(2) and 4.2.7(1), pertaining to directing growth and intensification to existing built-up areas and in strategic growth areas with existing or planned transit, supporting a range of housing types and employment opportunities, the conservation of heritage resources, the achievement of complete communities, and the achievement of a more compact built-form and vibrant public realm.

TOP

17Ms. Shepherd opined that the Settlement Proposal conforms to the TOP, and in particular, policy 5.3.1.3 related to ensuring amendments to the TOP are compatible with its physical context and will not affect nearby lands designated ‘Neighbourhoods’ or ‘Apartment Neighbourhoods’ in a manner contrary to the policies of the TOP. In addition, she opined that the Settlement Proposal conforms to the following TOP policies: 2.3.1, 2.4(4), 2.4(7), 3.1.1(2), 3.1.3(1), 3.1.3(4), 3.1.3(6), 3.1.6(4), 3.1.6(6), 3.1.6(26), 3.2.1(1), 3.3.1(3), 4.5(1) and 4.5(2) which focus on compatibility, reducing auto dependency, the provision of off-street parking, walkable communities, fitting with the existing and planned context, minimizing the impacts of vehicle parking, access and servicing needs, transition in scale of development, heritage conservation, providing a range of housing, enhancing the public realm, and development criteria for mixed-use developments.

18Ms. Shepherd maintained that the Settlement Proposal meets the test set out in policy 5.3.1.3, as it would permit the development of a building that is compatible with its physical context in terms of massing and tiering to address potential shadow and wind impacts and would therefore not result in any unacceptable adverse impact on the public realm or on lands designated ‘Neighbourhoods’ or ‘Apartment Neighbourhoods’. Further, she opined that the Settlement Proposal supports the TOP policies that: direct intensification to areas that are well-served by transit, other services and infrastructure; consolidate access points; locate and mass new buildings to provide transition between areas of different development intensity and scale; provide high quality built form and building design; preserve heritage assets by maintaining the Heritage Building which will help with the transition and connection to the lands to the north; improve the public realm and pedestrian conditions; provide a range of housing forms to help meet the needs of a variety of households; and contribute to the achievement of a complete community.

19Ms. Shepherd proffered that the Subject Lands are located within the ‘Garrison Common North’ Secondary Plan (“Secondary Plan”) area and also within ‘Site and Area Specific Policy 2’ of the Secondary Plan where a mix of employment and residential uses are permitted, provided that employment uses are restricted to those compatible with adjacent and neighbouring residential uses. In her opinion, the Settlement Proposal conforms to the Secondary Plan, and in particular policy 2.1 which states that new development will be integrated into the established city fabric in terms of streets and blocks, uses and density patterns; include a variety of land use and densities including community services and facilities, so that development can respond to changing market demands over time and provide services for new residents and tenants; and provide for a range of housing types in terms of size, type, affordability and tenure.

20In Ms. Sheppard’s opinion, the OPA further meets the test set out in policy 5.3.1.3 of the Official Plan, as the Secondary Plan contemplates a form of development that is not compatible with the existing ‘Neighborhoods’ designation, and because the form of development described in the planning instruments that facilitate the Settlement Proposal would be compatible with the physical context of the neighbourhood and would not affect nearby lands designated ‘Neighbourhoods’ or ‘Apartment Neighbourhoods’ in a manner contrary to the policies of the Official Plan or the Secondary Plan.

21In conclusion, Ms. Sheppard opined that the Settlement Proposal conforms with the Secondary Plan and supports its policy objectives regarding integrating new development within the established neighbourhood fabric and providing a range of housing types.

22Ms. Shepherd summarized the City’s ‘Mid-Rise Buildings Design Guidelines’ (“MBDG”) which propose a series of performance standards that will guide the design of mid-rise buildings in a manner appropriate to lands designated ‘Avenues’, and the ‘Growing Up Guidelines’ (“GUG”) which provide direction on how new development can better function for larger households. She proffered that the guidelines are non-statutory and are not determinative as policy, but, as per policy 5.3.2.1 of the TOP, were adopted to advance the TOP vision, objectives, and policies.

23With respect to the MBDG, Ms. Shepherd advised that, while the Subject Lands are not on an ‘Avenue’, she considered the building typology to be closer to a mid-rise than a tall building and noted that City staff included commentary on the MBDG in the staff report to Council. In this respect, she focused on the following performance standards, concluding that the Settlement Proposal has appropriate regard for the MBDG and is consistent with its design intent and strategic direction and meets the angular plane and sunlight standards:

a) buildings are moderate in height – no taller than the right-of-way is wide (a 1:1 ratio), up to a maximum height of 11 storeys (36 metres), excluding mechanical penthouse;

b) buildings provide an appropriate transition in scale to adjacent neighbourhoods, taking into account a 45-degree angular plane;

c) sidewalks are wide enough to include and support trees, generate a lively pedestrian culture and ensure accessibility for all;

d) sidewalks on the Avenues enjoy at least five hours of sunlight from the spring through to the fall; and

e) the ground floors of buildings provide uses that enliven sidewalks and create safe pedestrian conditions.

24Ms. Shepherd focused on the following provisions of the GUG, concluding that the Settlement Proposal has appropriate regard for the guidelines, exceeds the guidelines with respect to the two- and three-bedroom units, and is consistent with its intent and strategic direction:

a) seeking to achieve a minimum of 25% two and three-bedroom units, comprised of 15% two-bedroom units and 10% three-bedroom units;

b) providing innovative building massing and design, providing eyes on the street and outdoor space;

c) locating amenity space vertically throughout the building to minimize vertical distances to some types of amenity space; and,

d) locating outdoor amenity space to maximize access to sunlight while providing areas of shade.

ZBL

25Ms. Shepherd advised the Tribunal that, although ZBL 569-2013 was intended to replace the older zoning by-laws of the former municipalities, there are still many sites throughout the City that are not covered by ZBL 569-2013 and are still governed by the former municipal zoning by-laws, including the Subject Lands. In this respect, she advised that an objective of the ZBA is to update the zoning of the Subject Lands so that it conforms with the TOP, as the current industrial zoning under ZBL 438-86 does not comply with the current ‘Neighbourhoods’ designation or the proposed ‘Mixed Use Areas’ designation. She recommended that the Subject Lands be brought into ZBL 569-2013 and rezoned as ‘Commercial Residential – CR SS2’, with certain site-specific provisions which are to be subject to further review and modification in coordination with the City. She opined that the draft ZBA is appropriate and constitutes good land use planning.

Heritage Building

26With respect to heritage conservation, Ms. Shepherd confirmed that the Settlement Proposal includes the in-situ retention of the Heritage Building and the removal of its one-storey rear wing. The Heritage Building will continue to be used for commercial uses on the ground floor, with residential uses above. The proposed new building will attach to the Heritage Building on its east and south elevations with no new construction proposed above the roof of the Heritage Building. The City agreed to the removal of the rear wing as its removal is proposed in association with an approach that accommodates intensification of the Subject Lands while conserving the Heritage Building.

27Ms. Shephard opined that the Settlement Proposal appropriately conserves the Heritage Building while allowing for the intensification of the Subject Lands, consistent with provincial and municipal planning policy frameworks, and constitutes good land use planning.

Participant Statements

28The concerns raised by the Participants include: building height, transit, sewer infrastructure, traffic, shadows, density, affordable housing, the historic neighbourhood and the Heritage Building, the need for an area planning study, the lack of public consultation and lack of signage on the Subject Lands. Ms. Shepherd addressed most of these concerns throughout her testimony and added that:

• engineering studies are required to the satisfaction of the City with respect to infrastructure requirements, as well as the design and provision of financial securities for any upgrades or required improvements to the existing municipal infrastructure;
• the technical studies will ensure that the Subject Lands can be adequately serviced;
• with respect to addressing affordable housing, the Settlement Proposal exceeds the two- and three-bedroom unit requirements of the GUG and the owner of the Subject Lands is in discussions with the City regarding the potential provision of affordable housing as an in-kind contribution in accordance with the City's Community Benefits Charge By-law;
• a public consultation strategy report was prepared that set out the minimum public consultation requirements and what was proposed beyond the minimum. Public consultation included a community consultation meeting and other consultations and site-walks with area residents, as well as ongoing dialogue particularly as it related to the Heritage Building and discussions related to building height, massing and setbacks which resulted in changes to the design of the building; and
• the signage on the Subject Lands met the requirements of the City.

29Addressing the proposed OPA and ZBA instruments, Ms. Shepherd advised that the Appellant is seeking conditional approval for both instruments at this time which propose to rezone the Subject Lands to a ‘Commercial Residential’ zone, with appropriate site-specific zone requirements for height, setbacks, step-backs, percent of larger units, GFA exclusions, encroachment provisions, parking provisions and indoor and outdoor amenity space and to redesignate the Subject Lands to ‘Mixed Use Areas’ and amend the Secondary Plan to identify that ‘a mix of commercial and residential uses are permitted’.

30Ms. Shepherd concluded that the OPA and ZBA are appropriate and desirable from a land use planning perspective.

ANALYSIS AND FINDINGS

31The Tribunal accepts the uncontroverted testimony and evidence of Ms. Shepherd.

32The Tribunal finds that the Settlement Proposal will fit harmoniously with the existing and planned built form context and will enhance the area by intensifying an underutilized site which is well served with municipal infrastructure.

33The Settlement Proposal will be an efficient use of the land and will support the achievement of the PPS and Growth Plan policy directions promoting intensification within a built-up urban area. The Settlement Proposal will result in a desirable mixed-use intensification project having convenient access to transit, while incorporating the preservation of the Heritage Building and providing a range of housing types in terms of unit size and number of bedrooms.

34The Tribunal accepts the submission of Ms. Shepherd that the Settlement Proposal will not create unacceptable built form impacts on nearby properties or the public realm noting the built form incorporates setbacks and step-backs to meet the shadowing and sunlight requirements of the MBDG. Further, the 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 TOP.

35In consideration of the submissions of Ms. Shepherd and the revisions to the proposal resulting in the Settlement Proposal, the Tribunal is satisfied that the OPA and ZBA have sufficient and proper regard for those matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the OPA and ZBA are consistent with the PPS, conform to the policies of the Growth Plan and the TOP, are appropriate and desirable from a land use planning perspective and represent good land use planning.

36The Tribunal approves the OPA and ZBA in principle, subject to the conditions as recommended by Ms. Shepherd, being approval of the final form of the OPA and ZBA instruments to the satisfaction of the City.

INTERIM ORDER

37THE TRIBUNAL ORDERS THAT the appeals are allowed, in part, on an interim basis, and the Tribunal approves in principle the revised proposal for the lands municipally known as 109-127 Strachan Avenue, in the City of Toronto, substantially in accordance with the proposed Official Plan Amendment in Attachment 1 and the proposed Zoning By-law Amendment in Attachment 2 to be generally in accordance with the plans and drawings in Attachment 3.

38The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:

1. The Tribunal has been advised by the City Solicitor that:

a. the final form and content of the Official Plan Amendment is satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;

b. the final form and content of the Zoning By-law Amendment is satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;

c. the Owner has at its sole cost and expense:

i. submitted a revised Functional Servicing Report, Stormwater Management Report, and Hydrogeological Review, including the Foundation Drainage Report (“Engineering Reports”), to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;

ii. has secured the design and provision of financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Engineering Reports, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

iii. ensured the implementation of the accepted Engineering Reports does not require changes to the proposed amending By-laws or any such required changes have been made to the proposed amending By-laws, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, including the use of a Holding (“H”) By-law symbol regarding any new or upgrades to existing municipal servicing infrastructure as may be required; and,

iv. submitted a Tenant Relocation and Assistance Plan in accordance with Official Plan Policy 3.2.1.12 to be implemented prior to the issuance of Notice of Approval Conditions for Site Plan Approval that mitigates hardship for the tenants of 111 Strachan Avenue, which property is proposed to be demolished; the Plan shall be developed in consultation with, and to the satisfaction of, the City Solicitor and the Chief Planner and Executive Director, City Planning; and implemented prior to the issuance of Notice of Approval Conditions for Site Plan Approval;

d. the Owner shall enter into a Heritage Easement Agreement with the City for the property at 127 Strachan Avenue substantially in accordance with plans and drawings dated December 16, 2022 prepared by IBI Group and the Heritage Impact Assessment dated December 22, 2022 prepared by Goldsmith Borgal & Company Ltd. Architects, subject to and in accordance with the approved Conservation Plan required below, to the satisfaction of the Senior Manager, Heritage Planning, Urban Design, City Planning, including execution of such agreement to the satisfaction of the City Solicitor; and,

e. the Owner shall provide a detailed Conservation Plan prepared by a qualified heritage consultant that is substantially in accordance with the conservation strategy set out in the Heritage Impact Assessment for 127 Strachan Avenue dated December 22, 2022 prepared by Goldsmith Borgal & Company Ltd. Architects, to the satisfaction of the Senior Manager, Heritage Planning, Urban Design, City Planning.

39The Panel Members will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-Law Amendment and the issuance of the Final Order.

40If the Parties do not submit the final drafts of the Official Plan Amendment and Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [38] above have been satisfied, and do not request the issuance of the Final Order, by December 16, 2023, the Parties 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 request for 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.

41The 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 prerequisites to the issuance of the Final Order.

“C. I. Molinari”

C. I. MOLINARI

MEMBER

“Carmine Tucci”

CARMINE TUCCI

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

ATTACHMENT 2

ATTACHMENT 3