Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 11, 2023 CASE NO(S).: OLT-22-002710

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

Appellant: Markee Developments Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of 15 residential and mixed-use buildings Reference Number: 21 169802 NNY 17 OZ Property Address: 3377 Bayview Avenue Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-002710 OLT Lead Case No: OLT-22-002710 OLT Case Name: Markee Developments Inc. v. Toronto (City)

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

Appellant: Markee Developments Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of 15 residential and mixed-use buildings Reference Number: 21 169802 NNY 17 OZ Property Address: 3377 Bayview Avenue Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-002713 OLT Lead Case No: OLT-22-002710

Heard: July 24 and July 25, 2023

APPEARANCES:

Parties	Counsel
Markee Developments Inc. (“Appellant”)	D. Bronskill
City of Toronto (“City”)	J. Braun

MEMORANDUM OF ORAL DECISION DELIVERED ON JULY 25, 2023 BY KURTIS SMITH AND P. TOMILIN AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1After several detours, this matter came before the Tribunal as a Settlement Hearing, as the contesting Party, Bayview Woods Neighbourhood Association (“BWNA”) withdrew their Party Status on July 21, 2023, following the Tribunal’s oral dismissal of related Case No. OLT-23-000682 (Heritage Designation By-Law No 438-2023) on July 20, 2023. The hearing began on July 24, 2023, to receive a brief update on the matter, to confirm the withdrawal of Party Status from BWNA, and finally to direct the remaining Parties to present the Settlement to the Tribunal on July 25, 2023.

2The Settlement reached between the Appellant and the City is regarding the property Municipally known as 3377 Bayview Avenue, Toronto (“Subject Property”). The Appellant submitted applications for an Official Plan Amendment and Zoning By-law Amendment (together “Applications”) to the City on June 11, 2021. Due to the failure of the City to make a decision on the Applications within the statutory timeline set out in the Planning Act (“Act”) the Appellant appealed the Applications pursuant to s. 22(7) and s. 34(11) of the Act on March 3, 2022.

HEARING

3To support the Settlement Proposal, the sole witness called was Emma West, a land use planner who, upon review of her Curriculum Vitae and Acknowledgement of Expert’s Duty form, was qualified on consent by the Tribunal to provide opinion evidence in land use planning.

4The Tribunal marked two Exhibits into the record:

a. Exhibit 1 – Witness Statement of Emma West

b. Exhibit 2 – Bousfield Visual Document Book

5Ms. West provided the Tribunal with an all-encompassing review of the Settlement Proposal, which starts on page 7 of Exhibit 1 and utilized Exhibit 2 to provide visual context.

Site and Neighbourhood Context

6The Subject Property is an irregular shaped parcel with approximately 369.3 metres (“m”) of frontage along Bayview Avenue and approximately 250.8 m along Garnier Court. The site has significant topographical grade changes throughout, nevertheless 13.76 hectares (“ha”) of the total gross area of 22.7 ha are below the stable top-of-bank. Those lands are part of the regulated lands of the Toronto Region Conservation Authority (“TRCA”). The TRCA was a Party to this matter but withdrew their status on July 17, 2023, as their concerns were appeased through a settlement with the Appellant.

7Currently, Tyndale University occupies 35,804 square metres (“m²”) of gross floor area within buildings that are generally three to four storeys in height on the Subject Property. Prior to the ownership of Tyndale University, the site was owned by Sisters of St. Joseph where they provided their Motherhouse. Additionally, the former St. Joseph’s Morrow Park Catholic Secondary School occupied a portion of a site until 2013.

8As shown in Exhibit 2, page 3, the Subject Property is currently occupied by a number of buildings, which include a chapel, cafeteria and kitchen, classrooms, library, offices, and a gym. The site has two vehicular access points from Bayview Avenue and has an internal private road network that loops through the campus providing access to the approximately 500 parking spaces. The site has several green open spaces surrounding the buildings and parking lots.

9Surrounding the site is generally residential subdivisions with single detached dwellings, however as shown in Exhibit 2, page 4 and 6 there are a number of mid-rise buildings to the north and south of the Subject Property.

10Ms. West communicated to the Tribunal that within 500 m from the Subject Property, there are three surface transit services that are accessed through the pedestrian sidewalks along both sides of Bayview Avenue. Additionally, as part of the Metrolinx Regional Transit Plan, there are planned rapid transit corridors and potential transit linkages that are within 720 m from the Subject Property.

Settlement Proposal

11Ms. West communicated to the Tribunal that the Settlement Proposal

is based on a vision to provide residential infill in a campus-like setting that: preserves and expands the open space network throughout the site; is complementary to the heritage character of the existing university complex; responds to the existing topography; and protects natural features.

She further states that “the vision provides a framework of integrated public and shared streets, cycling and pedestrian connections, access to open spaces, views and sensitively placed buildings.”.

12The site will be divided by a public road (conveyed to the City), with an 18.5 m right-of-way that is crescent-like starting/ending at Bayview Avenue that provides access to internal road networks and parking. There will continue to be several open spaces throughout the Subject Property, with two public parks and a Privately-owned Publicly Accessible Open Space (“POPS”) that is referred to as the “Academic Green”. Ms. West explained that the other landscape open space areas on the Subject Property including the lands that are below the top-of-bank, provide a grand total of 6,622 m² of public parkland.

13As shown on Exhibit 2, page 24, 12 new residential buildings are proposed, being developed in three phases. In total there are 1,510 residential rental units proposed, which will be a mix of studio, one-, two-, and three-bedroom units, having access to 1,334 vehicular underground parking spaces and 1,525 bicycle parking spaces.

14Ms. West further explained that of the 1,510 residential units, there are 239 affordable rental units of which 34 are secured as in-kind contributions pursuant to subsection 37(6) of the Act.

15Ms. West opined that the proposed buildings have been designed with “wide-shallow units”, which means that the depth of the buildings are also shallow (14.6 m). The majority of the buildings are mid-rise, ranging from six-eight storeys with the exception of two tall buildings, which are 15 and 24 storeys atop a six to eight storey podium. Ms. West further explained that the buildings are designed in such a way to have a proportional relationship to the public roads and have incorporated stepbacks to the buildings greater than six or seven storeys. Additionally, the proposed buildings fronting onto Bayview Avenue and the new public road, a 45-degree angular plain has been applied at the height of 80% of the right-of-way.

16Ms. West communicated to the Tribunal that the lands below the stable top-of-bank and the associated 10 m average setback will be conveyed to the City or TRCA and that the proposal maintained the University use on the Subject Property, utilizing most of the existing buildings.

Planning Evidence

17Ms. West provided the Tribunal with oral and written evidence (Exhibit 1, pages 17-45) to support her findings that the Applications have regard to s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (“PPS”), conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), conform to the City of Toronto Official Plan (“TOP”), and has appropriate regard for the applicable guidelines.

Planning Act

18As it relates to the Act, Ms. West opined that the proposal has regard for section 2 of the Act. In particular, the orderly development of safe and healthy communities (s.2.f), providing a full range of housing, including affordable housing (s.2.j), located in an appropriate location for growth (s.2.p), supportive of public transit and is pedestrian oriented (s2.q) and is well designed, encourages a sense of place, and provides for public spaces that are safe, accessible, attractive and vibrant (s.2.r).

Provincial Policy Statement

19It is the opinion of Ms. West that

the proposal is consistent with the PPS as it will, among other reasons, contribute to supplying a range of housing options, at a density which promotes efficient land use that supports the conservation and preservation of natural resources.

Ms. West provided the Tribunal with a fulsome list of PPS polices that in her opinion are supported by the Settlement Proposal.

Growth Plan for the Greater Golden Horseshoe

20The Subject Property is part of a strategic growth area in the Growth Plan. Ms. West opined that the Settlement Proposal supports the strategic growth initiatives as it is located along a major street with frequent transit services and is located within 500-800 m from the planned rapid transit route.

21Ms. West further opined that the proposal conforms to the Growth Plan “as it will, among other reasons, intensify strategic growth area, integrate land use planning and infrastructure, and restore and protect the natural heritage system.”.

Toronto Official Plan

22Ms. West provided a generous review of the TOP as it relates to the Settlement Proposal, which can be found in Exhibit 1, pages 23 - 33. She opined that the Settlement Proposal “introduces an appropriate form of intensification in a proposed Apartment Neighbourhoods designation, while respecting the Neighbourhoods to the south and Natural Areas to the east.” She went on by stating the “proposal provides an appropriate balance among the applicable planning objectives, including transit-supportive intensification, increased housing supply, natural heritage conservation and limited built form impacts.”

Guidelines

23Ms. West identified three guidelines that relate to the Subject Property: Tall Buildings Guidelines, Mid-Rise Buildings Performance Standards, and Growing Up Urban Design Guidelines. She communicated to the Tribunal that in accordance with Policy 5.3.2.(1) of the TOP, it is Ms. West opinion that guidelines do not have the same weight as policy.

24As it relates to the above-mentioned guidelines, Ms. West opined that the Settlement Proposal has appropriate regard as the built form provides appropriate transition, building separation, and an appropriate mix of larger size residential rental unit options.

FINDINGS

25The Tribunal accepts the uncontested planning evidence and opinions of Ms. West and is satisfied that the Applications represent good planning, have regard for matters of provincial interest, are consistent with the PPS, conform to the Growth Plan, TOP and have appropriate regard for the applicable Guidelines.

INTERIM ORDER

26THE 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 27 below, and the Official Plan Amendment and Zoning By-law Amendment are hereby approved in principle.

27The Tribunal’s Final Order is withheld pending written confirmation from the City Solicitor of the following pre-requisite matters:

a. the Tribunal has received, and approved, the Official Plan Amendment and Zoning By-law Amendment submitted in the final form and content, confirmed to be satisfactory to the City Solicitor, and the Chief Planner and Executive Directory, City Planning Division;

b. the Owner has provided a Functional Servicing Report and Stormwater Management Report, including the Foundation Drainage Report, satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services, and the General Manager, Toronto Water addressing the comments as contained within the Engineering and Construction Services memorandum dated February 13, 2023;

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 and Stormwater Management Report, including the Foundation Drainage Report, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering 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;

d. the Owner has at its sole expense provided a revised Traffic Impact Study, including Travel Demand Management Measures satisfactory to the General Manager and Chief Engineer, Engineering and Construction Services, the General Manager, Transportation Services, and the Chief Planner and Executive Director, City Planning;

e. the Owner has made satisfactory arrangements with Engineering and Construction Services and entered into the appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades and road improvements are required to the infrastructure to support this development;

f. the Owner has obtained Draft Plan of Subdivision approval from the Chief Planner and Executive Director, City Planning;

g. the Owner has entered into a Municipal Housing Facility Agreement, as part of the City's Open Door Affordable Housing Program, to secure the 205 affordable housing units;

h. the Owner has paid any outstanding planning application fees to the City Planning Division, to the satisfaction of the Chief Planner and Executive Director, City Planning;

i. the Owner has entered into a Heritage Easement Agreement with the City for the Designated Property substantially in accordance with the Heritage Impact Assessment prepared by ASI, dated June 2021, and the Heritage Impact Assessment Supplement, prepared by ASI, dated January 2023 and in accordance with the Conservation Plan required in Part 4.j. below to the satisfaction of the Senior Manager, Heritage Planning including registration of such agreement to the satisfaction of the City Solicitor;

j. the Owner has provided a detailed Conservation Plan, prepared by a qualified heritage consultant that is consistent with the conservation strategy set out in the Heritage Impact Assessment for the Designated Property prepared by ASI, dated June 2021 and the Heritage Impact Assessment Supplement, prepared by ASI, dated January 2023, to the satisfaction of the Senior Manager, Heritage Planning; and

k. the Owner has entered into the In-kind Contribution Agreement pursuant to section 37(7.1) of the Planning Act to secure the construction and provision of 34 affordable housing rental dwelling units as part of the development as in-kind contribution pursuant to subsection 37(6) of the Planning Act, to the satisfaction of the City Solicitor, and the Chief Planner and Executive Director, City Planning.

28The Panel Members will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment, Zoning By-law Amendment and the issuance of the Final Order.

29If the Parties do not submit the final drafts of the Official Plan Amendment, Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 27 above have been satisfied, and do not request the issuance of the Final Order, by Friday, January 26, 2024, the Appellant 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, Site Plan 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.

30The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“Kurtis Smith”

KURTIS SMITH MEMBER

“P. Tomilin”

P. TOMILIN 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.