Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 12, 2023
CASE NO(S).: OLT-22-003642
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: First Capital Holdings (Ontario) Corporation
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit two, 21-storey towers and a 9-storey midrise building
Reference Number: 19 244758 NNY 16 OZ
Property Address: 801 York Mills Rd. & 1855 Leslie Street
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-003642
OLT Lead Case No.: OLT-22-003642
OLT Case Name: First Capital Holdings (Ontario) Corporation v. Toronto (City)
Heard: July 31, 2023 in Writing
APPEARANCES:
Parties
Counsel
First Capital Holdings (Ontario) Corporation
Denise Baker
City of Toronto
Ray Kallio
York Mills Leslie Residents Inc.
Conner Harris
DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This matter proceeded as a Settlement Hearing in writing as a result of the resolution reached between the Parties. This matter is an Appeal brought forward by First Capital Holdings (Ontario) Corporation (“Applicant”) regarding the properties municipally known as 801 York Mills Road and 1855 Leslie Street (“Subject Site”) in the City of Toronto (“City”). The Appeal arises following a non-decision by the City in relation to a Zoning by-law application, originally seeking to develop two 21-storey towers atop a six-storey podium and a nine-storey midrise building on the Subject Site.
2The written materials before the Tribunal were:
a. Exhibit 1 - Affidavit of Lindsay Dale-Harris (42 Pages)
b. Exhibit 2 - Affidavit of Tom Kasprzak (38 Pages)
c. Exhibit 3 - Document Book (553 Pages)
d. Exhibit 4 - Participant Statement of Stephen Nitikman
e. Exhibit 5 – Participant Statement of Tyson Chu
f. Exhibit 6
i. York Mills Leslie Residents Inc. (“YMLRI”) July 11, 2023, Email, Conditions Request
ii. YMLRI August 10, 2023, Letter, Additional Conditions Request
g. Exhibit 7 – First Capital Holdings (Ontario) Corporation correspondence, August 18, 2023
3To support the Settlement Plan the Tribunal, based on their Curriculum Vitae and Acknowledgement of Expert’s Duty forms, qualifies Ms. Dale-Harris and Mr. Kasprzak to provided written opinion evidence in land use planning and urban design, respectively.
SUBJECT SITE CONTEXT
4The Subject Site is approximately 1.12 hectares, having frontage along Leslie Street, 25 metres (“m”), Scarsdale Road, 71 m, and York Mills Road, 118 m. The portion of the site known at 801 York Mills Road is currently occupied by a three-storey office building and single storey building that currently houses two restaurants. The balance of the site, known as 1855 Leslie Street, is currently vacant but was previously the location of a veterinary clinic. Access to the Subject Site is provided along York Mills Road and Scarsdale Road.
SETTLEMENT PLAN
5Ms. Dale-Harris and Mr. Kasprzak provided written material with a fulsome overview of the Settlement Plan, which can be found in Exhibit 1, Page 6, and Exhibit 2, Page 5-7.
6The Settlement Plan before the Tribunal is comprised of three buildings: two 15-storeys towers atop a five-story podium and a five-storey (15 m) townhouse block. The site will have 492 vehicular parking spaces and 474 bicycle parking spaces. In total the plan will have 470 units, of which 30 will be townhouses and the remaining being divided 55.5% one-bedroom units, 30.5% two-bedroom units and 12.7% three-bedroom units. The Settlement Plan includes 994 square metres (“sq m”) of park space, 901 sq m of outdoor amenity area and 1,145 sq m of indoor amenity space. In addition to the above there will be retail uses at grade.
EVIDENCE AND ANALYSIS
7Ms. Dale-Harris provided the Tribunal with her written opinion to support her findings that the revised Settlement Plan have regard for matters of provincial interest, are consistent with the Provincial Policy Statement (“PPS”), conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and conform to the Toronto Official Plan (“TOP”).
8In addition to Ms. Dale-Harris, the Tribunal received the written opinion of Ms. Kaspzak that the proposal represents good urban design and will make a positive contribution to the general area. Moreover, the Settlement Plan conforms with the urban design policies in the City and has appropriate regard for the relevant urban design guidelines, specifically the City’s Tall Building Design Guidelines.
9As provided in her affidavit, it is the opinion of Ms. Dale-Harris that the proposed development provides an appropriate level of intensification for a site designated mixed-use and which is located along an arterial road with existing transit services. More specifically, Ms. Dale-Harris opined that the Settlement plan promotes intensification and a range of housing choices within the built-up urban area that is well-served by municipal infrastructure.
10From an urban design standpoint, Mr. Kaspzak and Ms. Dale-Harris are of the opinion that the Settlement Plan is in keeping of the neighbourhood character and provides an appropriate building height, massing, setback and transition that is compatible with the surrounding built form environment. The design of the structure limits the shadow impacts onto the surrounding properties and proposed podium height and massing compliments the adjacent street frontages.
YMLRI Request
11On July 11, 2023, YMLRI communicated (Exhibit 6A) to the Tribunal that they wish to seek the following conditions to be included with any approval of the settlement:
a. Consultation with YLRI about the location of replacement trees on the development site, to occur at the time of submission of a site plan application;
b. Consultation with YMLRI with respect to the development of a construction management plan (and the details thereof), to occur at the time of submission of a site plan application; and
c. Consultation with YMLRI with respect to the installation and location of a privacy fence at the rear of the development site, to occur at the time of submission of a site plan application.
12Ms. Dale-Harris opined that the above requested conditions are not in the original or revised issues list and are simply not appropriate conditions as part of a rezoning process. She further wrote that “Matters of tree removal and/or replacement, construction management matters and fence installation are matters for consideration through the site plan approval or building permit process and will be addressed by the City of Toronto at the appropriate time.”
13Ten days following the hearing date on August 10, 2023, YMLRI submitted Exhibit 6B requesting the Tribunal to consider including the following conditions:
a. The applicant be required, at the time of making a site plan application, to consult with YMLRI with respect to the location of replacement trees on the site;
b. The applicant be required, at the time of making a site plan application, to consult with YMLRI with respect to the details of a construction management plan with respect to construction on the site; and
c. The applicant be required to consult with YMLRI with respect to the details of a privacy fence to be installed at the rear of the property.
14Given the late nature of the submissions of the YMLRI, the Tribunal provided Counsel for the Applicant, Ms. Baker, the opportunity to respond.
15As provided in Exhibit 7, Ms. Baker states:
It is submitted that the submission of the YMLRI should be given no weight by the Tribunal. The YMLRI is a party in this matter, however they chose to not fulfill the obligations associated with being a party, namely they refused to have their planner attend the expert witness meetings, and they filed no evidence in this hearing, despite maintaining issues on the issues list. Notwithstanding this, the solicitor for the YMLRI has purported to enter evidence by way of letter dated August 10, 2023, which is more than two months after the deadline for which evidence was to be provided. In addition, when the matter was converted to a settlement hearing, any evidence associated with the settlement hearing could have been provided up to 10 days in advance of the settlement hearing date.
Participant Statements
16The Tribunal was in receipt of two Participant Statements in opposition to the Proposal from: (1) Stephen Nitikman, of 39 Hurlingham Crescent (Exhibit 4), and (2) Tyson Chu, resident of 22 Hurlingham Crescent (Exhibit 5). These statements raised a handful of concerns including traffic, property values, trees/landscaping, loss of employment lands and concerns of administerial process.
17Nearly all of the concerns were addressed by the Expert Witnesses of the Applicant. However, due to the late submission of one of the Participant Statements, Counsel for the Applicant addressed the Participant Statement concerns in a letter dated August 18, 2023 (Exhibit 7) as well.
18The issues raised and the positions taken by the Participants were taken into considering by the Tribunal in making its findings in this Decision.
FINDINGS
19The Tribunal accepts the uncontested written evidence of Ms. Dale-Harris and Mr. Kaspzak and is satisfied that the Zoning By-law Amendment represents good planning, has regard for matters of provincial interest, is consistent with the PPS, conforms to the Growth Plan and TOP and has appropriate regard for the applicable guidelines. The Settlement Plan will provide an appropriate level of intensification on a mixed-use site and has been designed in such a way to compliment the neighbourhood character.
20The Tribunal accepts Ms. Dale-Harris opinion regarding the July 11, 2023, conditions requested by YMLRI. Additionally, the Tribunal concurs with the submissions of Ms. Baker regarding the YMLRI August 10, 2023, conditions request.
ORDER
21THE 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 22 below and the Zoning By-law Amendment, set out in Attachment 1 to this Interim Order, is hereby approved in principle.
22The Tribunal will withhold the issuance of its Final Order, contingent upon confirmation of the City Solicitor of the following pre-requisite matters:
a. the outstanding issues identified in the memorandum, dated September 7, 2022, from Engineering and Construction Services, have been addressed to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
b. all encroachments within City easements have been addressed to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
c. a revised parking and loading study has been submitted to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, with the appropriate development standards to be secured in the implementing Zoning By-law;
d. a Transportation Demand Management plan has been submitted to the satisfaction of the Chief Planner and Executive Director, City Planning;
e. a revised Functional Servicing Report, Stormwater Management Report and Hydrogeological Review (the "Engineering Reports") are submitted to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
f. appropriate legal mechanisms are in place requiring:
i. the design and the provision by the Owner of any upgrades or required improvements to the existing municipal infrastructure and/or new 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, should it be determined that improvements or upgrades and/or new infrastructure are required to support the development, and that financial security has been provided by the Owner to secure same;
ii. transportation improvements in the area by the Owner, including signal modifications and/or upgrades, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and that financial security has been provided by the Owner to secure same;
iii. the provision of such matters arising from the accepted Transportation Demand Management by the Owner, if required;
iv. the provision of an access easement by the Owner in favour of the City in perpetuity, to be registered on title prior to condominium registration, with such access easement to include support rights as applicable, for public pedestrian and vehicular use of the L shaped private driveway with a minimum width of 9.1 metres on the north/south portion and 8.1 metres on the east/west portion, all to the satisfaction of the Chief Planner and Executive Director, City Planning, the General Manager, Transportation Services and the City Solicitor; such access easement shall include use associated with the property adjacent to the west (municipally known as 799 York Mills Road) to provide a future pedestrian and vehicular link to York Mills Road and Scarsdale Road;
v. that prior to the first above-grade building permit, the Owner convey to the City, an on-site parkland dedication, having a minimum size of 994 square metres at the southeast corner of the site with frontage on Scarsdale Road, on terms to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor, in partial fulfilment of the parkland dedication requirement pursuant to Section 42 of the Planning Act;
vi. that prior to the issuance of the first above-grade building permit, the Owner make a cash-in-lieu payment for the residual 97 square metres of the parkland dedication requirement, pursuant to Section 42 of the Planning Act; and
vii. the Owner to design and construct the Above Base Park Improvements to the new park, contingent on the provision of a development charge credit against the Parks and Recreation component of the Development Charges.
23The 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.
24If the Parties do not submit the final drafts of the Zoning By-law Amendment, do not provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 22 above have been satisfied, and do not request the issuance of the Final Order, by Wednesday, January 31, 2024, then the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
25The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional time lines and deadlines 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.
“Kurtis Smith”
KURTIS SMITH
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