Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 13, 2023

CASE NO(S).: OLT-22-002343 (Formerly PL140860)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 10 QEW Inc.

Appellant: 100 Metropolitan Portfolio Inc.

Appellant: 1095909 Ontario Limited (Wynn Group of Companies)

Appellant: 1107051 Ontario Ltd.; and others

Subject: Proposed Official Plan Amendment No. 231

Municipality: City of Toronto

OLT Case No.: OLT-22-002343

Legacy Case No.: PL140860

OLT Lead Case No.: OLT-22-002343

Legacy Lead Case No.: PL140860

OLT Case Name: A. Mantella & Sons Limited v. Toronto (City)

Heard: In writing

APPEARANCES:

Parties	Counsel
City of Toronto	A. Biggart C. Kapelos
G. Gagliano Properties Ltd. and Benton Property Corp.	J. Park

DECISION DELIVERED BY C. HARDY AND S. BRAUN AND ORDER OF THE TRIBUNAL

INTRODUCTION/BACKGROUND

1On December 16-18, 2013, By-law No. 1714-2013 was adopted by City of Toronto (“City”) Council, the purpose and effect of which was to adopt Official Plan Amendment 231 (“OPA 231”) to the City’s Official Plan (“OP”) regarding policies for economic health and the policies, designations and mapping for Employment Areas. On July 9, 2014, OPA 231 was approved, with limited exceptions, by the Minister of Municipal Affairs and Housing (“MMAH”). Thereafter, a total of 178 appeals were filed, including appeals of the whole of OPA 231 and other appeals made on site-specific bases.

2In previous decisions, various panels of this Tribunal (and its predecessors) have provided extensive background on the history of the OPA 231 appeals, including detail with respect to how the 178 appeals were case-managed and grouped into specific Phases.

3One of the aforementioned site-specific appeals, Appeal No. 92, was commenced by G. Gagliano Properties Ltd. and Benton Property Corp. (“Appellant”), with respect to the lands at 21 and 23 Benton Road, 1235-1255 Lawrence Avenue West and 3 and 15 Benton Road. At a Case Management Conference held on June 8, 2023, the Tribunal was advised that the City and the Appellant had reached an agreement to settle the appeal, which had been endorsed by City Council on May 10, 2023. The Tribunal directed that the City submit a written motion to settle the appeal.

4Just prior to the hearing of the motion, the Tribunal received correspondence from the Appellant dated August 25, 2023, withdrawing the appeal as it relates to 21 and 23 Benton Road. Accordingly, the motion brought forward by the City sought the approval of the Tribunal for a settlement pertaining to the remaining lands subject to Appeal No. 92, being 1235-1255 Lawrence Avenue West and 3 and 15 Benton Road (“the Lands”).

5In accordance with the Tribunal’s direction, the City submitted motion materials on September 1, 2023, including an Affidavit in support of the proposed settlement, affirmed on August 31, 2023, by Registered Professional Planner, Gerry Rogalski. Mr. Rogalski is currently a Senior Planner within the Strategic Initiatives, Policy & Analysis section of the City Planning Division. Mr. Rogalski, who has been qualified previously by this Tribunal and its predecessors to provide land use planning opinion evidence, provided a curriculum vitae and an executed Acknowledgement of Experts’ Duty and, based on a review of the foregoing, he was similarly qualified for the purposes of the present motion.

6The City, with the consent of the Appellant, sought an Order of the Tribunal modifying and approving OPA 231 as it relates to the Lands, to redesignate the Lands from General Employment Areas and Core Employment Areas to Mixed Use Areas and add a new site and area specific policy to guide development on the Lands, as set out in Exhibit “F” of the Affidavit of Mr. Rogalski. If approved, the settlement would result in the resolution of Appeal No. 92 in its entirety.

SITE CONTEXT

7The Lands are approximately 2.57 hectares in size and located at the northern periphery of an Employment Area. They are situated southeast of the intersection of Lawrence Avenue West and Keele Street and at the southeast corner of Lawrence Avenue West and Benton Road. To the north of the Lands across Lawrence Avenue West are low rise residential dwellings. To the south is a one-storey warehouse located at 21-23 Benton Road and designated Core Employment Areas. The Core Employment Area continues south and includes active manufacturing, warehouse, office and industrial uses. Immediately east of the Lands is the Metrolinx Rail corridor, with a narrow strip of Core Employment Area lands containing auto repair, retail and service uses. To the west of the Lands across Benton Road are places of worship, a warehouse and retail uses on lands designated Core Employment Area.

8At present, the Lands are developed with a one-storey industrial building that includes some two-storey office space. Surface parking and loading areas are located behind the building and next to the abutting rail corridor. OPA 231 designated the north part of the Lands as General Employment Area and the south part as Core Employment Area.

9The Core Employment Area designation permits: all types of manufacturing, processing, warehousing, wholesaling, distribution, storage, transportation facilities, vehicle repair and services, offices, research and development facilities, utilities, waste management systems, industrial trade schools, media, information and technology facilities and vertical agriculture. Ancillary uses including parks, catering facilities, small-scale restaurants, small-scale service and small-scale retail uses that are ancillary to and on the same lot as the principal employment use are permitted.

10General Employment Areas are generally located on the periphery of Employment Areas on major roads where retail, service and restaurant uses can benefit from visibility and transit access to draw the broader public and serve workers in the Employment Area. Permitted uses include all uses in the Core Employment Area as well as retail, service, restaurant and fitness centre uses.

SETTLEMENT

11Broadly, the proposed settlement (contained within Exhibit “F” to the Affidavit of Mr. Rogalski) would modify Map 2, Urban Structure, by deleting Employment Areas on the Lands and would also modify Map 23, by redesignating the lands at 1235-1255, 3 Benton Road and a portion of 15 Benton Road from General Employment Areas and Core Employment Areas to Mixed Use Areas. The proposal also contemplates the addition of a new Site and Area Specific Policy No. 867 (“SASP 867”) intended to guide development of the Lands. SASP 867 includes policies aimed at: ensuring employment uses are developed prior to, or concurrent with, residential uses; ensuring the provision of a minimum amount of affordable housing; and ensuring compatibility and safety with the adjacent rail corridor as well as avoiding land use conflicts.

12Mr. Rogalski affirmed that the approval of the proposed settlement is representative of good planning as it will:

• ensure that the economic function of the Lands is maintained by securing an increase of employment Gross Floor Area (“GFA”) on the Lands that significantly exceeds a replacement of existing employment space on the Lands through future development;
• require that development of employment GFA occur prior to or concurrently with residential development to ensure appropriate and balanced phasing and contribute to a complete community;
• not adversely affect the overall viability of the Employment Area and maintain a stable operating environment for business and economic activities, in particular on the Core Employment Area lands west and south of the Lands;
• protect Employment Areas and their uses in conformity with Section 2.2.4, Employment Areas: Supporting Business and Employment Growth of the OP. Employment uses are to be compatible with residential uses and mitigate impacts from and be compatible with surrounding employment uses and the rail corridor, mitigating any impact upon business operations;
• concentrate residential development towards the northern area of the Lands and Lawrence Avenue West and retain the southern area of the Lands as Core Employment Area. The retained Core Employment Area lands will be appropriately situated contiguous with the remainder of the Employment Area located to the south and west;
• ensure compatibility and safety with the adjacent rail corridor, and appropriately avoid land use conflicts between residential development on the Lands, in conformity with the Compatibility/Mitigation policies in Section 2.2.4 of the OP;
• secure the provision of affordable housing; and
• redesignate the north portion of the lands to Mixed Use Areas, which is appropriately situated within the surrounding area context given that:
  1. these lands will benefit from transit access and visibility to Lawrence Avenue West, a Major Street on Map 3 of the OP; and
  2. the Mixed Use Area along the south side of Lawrence Avenue West will be extended eastward so that it continues from a point west of Keele Street to the rail corridor located at the eastern edge of the Lands.

13In light of the foregoing, Mr. Rogalski affirmed that the proposed settlement has regard for matters of provincial interest in s. 2 of the Planning Act and is consistent with Provincial Policy Statement 2020. With respect to the requirement for conformity with the Growth Plan, Mr. Rogalski’s Affidavit explains the application of Ontario Regulation 305/19, which was filed by the Province and came into force on September 6, 2019. This regulation pertains to transitional matters for Growth Plans under the Places to Grow Act, 2005 and transitions OPA 231 under the 2006 Growth Plan, such that the 2020 Growth Plan, as amended, and the policies contained within it, including the Provincially Significant Employment Zones framework, are not applicable to those sites and policy matters that have appeal status under OPA 231, including matters related to site specific appeals. Mr. Rogalski affirmed that the proposed settlement conforms to the 2006 Growth plan, that it maintains the intent and purpose of the OP and will resolve Appeal No. 92 of OPA 231 in its entirety.

14Based on the uncontested Affidavit evidence of Mr. Rogalski, the Tribunal approves the proposed modifications to OPA 231, having been satisfied that they meet all requisite legislative tests and are representative of good planning.

ORDER

15THE TRIBUNAL ORDERS that:

a) the appeal by G. Gagliano Properties Ltd. and Benton Property Corp.is allowed in part, Official Plan Amendment 231 to the Official Plan for the City of Toronto is modified and approved as set out in Attachment 1 and such modifications are hereby in full force and effect as they apply to the lands at 1235-1255 Lawrence Avenue West and 3 and 15 Benton Road;

b) this Order and the approval of the above-mentioned portions of OPA 231 are without prejudice to the disposition of the unapproved portions of OPA 231, including but not limited to positions taken by the parties to any remaining site or area specific appeals. Thus, the Tribunal may render future Orders respecting such unapproved portions of OPA 231 which are inconsistent with one or more aspects of this Order, including without limitation approving site-specific modifications that deviate from or are inconsistent with this Order or such policies, non-policy text, that are approved hereby on a City-wide basis (or as approved in respect of other lands which are subject to the same policies, schedules and associated text). However, this does not affect the City’s right to assert that the approved policies and non-policy text should be applied to the specific sites or areas without modification on the basis that they constitute good planning;

c) notwithstanding anything ordered above, the Tribunal hereby retains jurisdiction to consider and approve modifications to any policies, non-policy text, definitions and mapping approved herein as may be appropriate to dispose of any of the outstanding appeals before the Tribunal, in accordance with section 9 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c.21, Sched.6; and

d) the Panel may be spoken to should issues arise with respect to the implementation of this Order.

“C. Hardy”

C. HARDY MEMBER

“S. Braun”

S. BRAUN 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

Proposed Modification to OPA 231 Settlement of Appeal No. 92 respecting 1235-1255 Lawrence Avenue West and 3 and 15 Benton Road

OPA 231 is modified with respect to the lands municipally known in 2022 as 1235-1255 Lawrence Avenue West and 3 and 15 Benton Road as follows:

1. Map 2, Urban Structure, shown as Appendix 1, is modified by deleting Employment Areas on the lands municipally known in 2022 as 1235-1255 Lawrence Avenue West, 3 Benton Road and a portion of 15 Benton Road, as shown on attached Schedule A.

2. Map 23 of 48, shown in Appendix 2, is modified by redesignating the lands municipally known in 2022 as 1235-1255 Lawrence Avenue West, 3 Benton Road and a portion of 15 Benton Road from General Employment Areas and Core Employment Areas to Mixed Use Areas, as shown on attached Schedule B.

3. Chapter 7, Site and Area Specific Policies, is amended by adding Site and Area Specific Policy 867 for the lands municipally known in 2022 as 1235-1255 Lawrence Avenue West, 3 and 15 Benton Road, as follows:

'867. 1235-1255 Lawrence Avenue West, 3 and 15 Benton Road

1. A mixed-use and mixed-income development is permitted provided that:

a) A minimum of 20,500 square metres of employment gross floor area is developed at full build out of the lands. The employment gross floor area will:

i. be comprised of uses permitted in Core Employment Areas and General Employment Areas that are compatible with residential uses;

ii. be constructed on the lands prior to or concurrent with any residential gross floor area;

iii. contain a minimum of 50 percent of employment gross floor area devoted to Core Employment Areas uses such as office, media, artist studio, lab, research and development facilities, information and technology facilities, cultural industry spaces, incubator and/or co-working space; and

iv. contain not more than 4,000 square metres of the employment gross floor area devoted to retail and personal service uses.

b) New development containing residential units is located on the part of the lands designated Mixed Use Areas and will secure a minimum amount of affordable housing as follows:

i. if a condominium development is proposed, a minimum of 5 percent of the total new residential gross floor area shall be secured as affordable ownership housing or a minimum of 5 percent of the total new residential gross floor area shall be secured as affordable rental housing; or

ii. if a purpose-built rental development is proposed after 2025, a minimum of 5 percent of the total new residential gross floor area shall be secured as affordable rental housing;

iii. the affordable housing shall be secured at affordable rents or affordable ownership prices for a period of at least 25 years from the date of first residential occupancy of the unit; and

iv. the unit mix of the affordable housing shall reflect the market component of the development, as appropriate, to achieve a balanced mix of unit types and sizes and support the creation of affordable housing suitable for families.

c) The provision of affordable housing required by Policy b) shall be secured through one or more agreements with the City.

d) Conditions to be met prior to the removal of a holding ("H") provision on the lands shall include the following:

i. Entering into a Municipal Housing Project Facility Agreement or such other agreement(s) as may be satisfactory to the City Solicitor to secure the provision of affordable housing; and

ii. The submission and acceptance of a Housing Issues Report, to the satisfaction of the Chief Planner and Executive Director, that identifies the unit mix, unit sizes, and how affordable housing requirements will be met.

e) As part of a complete Zoning By-law Amendment application for the lands:

i. a phasing plan will be submitted to demonstrate, to the City’s satisfaction, how the required non-residential gross floor area will be achieved; and

ii. a Rail Safety and Rail Mitigation Report will be submitted, peer reviewed and implemented, at the applicant's expense, to the City's satisfaction, and reviewed by the applicable rail operator.

f) Development will be set back a minimum of 30 metres from the property line of the rail corridor, or an appropriate distance deemed to provide risk mitigation through a peer-reviewed Rail Safety and Risk Mitigation Study.

g) Employment uses on the lands will be located and designed to mitigate impacts from and be compatible with existing nearby employment uses and the rail corridor.

2. Area A may be used for underground parking, loading, service, access and/or mechanical facilities to serve the uses on the Mixed Use Areas portion of the lands. No residential uses are permitted in Area A.’

3. Map 28, Site and Area Specific Policies (Key Map), is modified to add the lands municipally known in 2022 as 1235-1255 Lawrence Avenue West, 3 Benton Road and 15 Benton Road as Site and Area Specific Policy No. 867.

Schedule A

Schedule B