Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 20, 2023
CASE NO(S).: OLT-22-004433
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Menfor Dundas Developments Inc.
Subject: Zoning By-law Amendment
Description: By-law Nos. 1093-2022 and 1094-2022 permitting the development of a 41-storey mixed use development
Reference Number: BL 1093-2022
Property Address: 212-218 Dundas Street East and 279 1/2 George Street
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-004433
OLT Lead Case No.: OLT-22-004433
OLT Case Name: Menfor Dundas Developments Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Menfor Dundas Developments Inc.
Subject: Zoning By-law Amendment
Description: By-law Nos. 1093-2022 and 1094-2022 permitting the development of a 41-storey mixed use development
Reference Number: BL 1094-2022
Property Address: 212-218 Dundas Street East and 279 1/2 George Street
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-004434
OLT Lead Case No: OLT-22-004433
Heard: July 11, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Menfor Dundas Developments Inc. | John Alati Kyle Gossen |
| City of Toronto | Ray Kallio (in absentia) Adam Ward |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON JULY 11, 2023 AND ORDER OF THE TRIBUNAL
Link to the Interim Order
1This second Case Management Conference (“CMC”) was converted to a Settlement Hearing on request of the Parties. There are two appeals. These appeals were filed by Menfor Dundas Developments Inc. (“Appellant”) against the enactment by the City of Toronto (the ”City”) of two Zoning By-law Amendments (“ZBAs”). These ZBAs apply to the properties of the Appellant municipally known as 212 and 218 Dundas Street East and 279 1/2 George Street, in the City (“Subject Site”).
2The Parties informed the Tribunal that the key issue has been the sign-off of a previously agreed s. 37 Agreement. The Parties advised that they have reached a settlement in principle on all of the issues in this matter and would be finalizing and submitting the same for final approval by the Tribunal over the coming weeks.
EVIDENCE AND ANALYSIS
3The Appellant called Todd Trudelle as an expert witness. Mr. Trudelle was affirmed by the Tribunal and qualified to provide expert opinion evidence in the area of land use planning.
4Mr. Trudelle provided background on the appeals as follows:
On July 22, 2022, City Council passed By-law Nos. 1093-2022 and 1094-2022 (attached to this Affidavit as Exhibits D and E), which amended the Comprehensive Zoning By-laws (“CZBL”) with respect to the Subject Site, permitting the use of the Subject Site in accordance with the Application, but with requirements to enter into a s. 37 Agreement and with the holding provisions prohibiting the use of the Subject Site for any purpose other than existing uses and buildings, until the (H) symbol has been removed.
The Appellant appealed the adopted ZBAs on August 22, 2022, particularly relating to the inclusion of Holding (H) provisions, matters regarding the s. 37 provisions, and to make minor corrections to the ZBAs.
5Mr. Trudelle described the Subject Site as on the northeast corner of Dundas Street East and George Street. The Subject Site has an existing four-storey commercial building generally on Dundas Street East and a three-storey detached dwelling located on George Street. The Subject Site has a total area of 2,514 square metres (“m2”) and frontages of 79.29 metres (“m”) on Dundas Street East and 42.22 m on George Street.
6Mr. Trudelle provided the following regarding the original proposal and what resulted in the settlement:
The original applications submitted to amend the Official Plan (“OPA”) and Zoning By-laws (“ZBA”), which proposed a 46-storey mixed-use building that included a 2-13 storey base building, a total gross floor area (“GFA”) of 36,328.4 m2 and a Floor Space Index (“FSI”) of 14.5 times the area of the lot. The proposal included a mix of 588 residential units, 35,299.2 m2 of residential GFA and 1,029.2 m2 of commercial retail space. Although the detached dwelling located at 279 ½ George Street forms part of the Subject Site, it will be wholly maintained in the current location with no alterations proposed.
The revised application provides for a 41-storey mixed-used development with 32,023 m2 of GFA and includes ground-floor commercial uses. The resultant FSI is 12.7 as calculated through By-law No. 569-2013. A seven-storey podium is proposed, which preserves portions of the existing four-storey heritage building currently located in the southwest corner of the Subject Site. A total of 490 residential units are proposed. The existing three-storey apartment operating as a rooming house is to remain in situ with the retention of the 10 existing rental units contained therein.
Through the City’s review of the application, it was determined that an OPA was not required as the proposal is in conformity with the Official Plan as well as Site and Area Specific Policy No. 461 (“SASP 461”).
7Mr. Trudelle described that the following planning approval is before the Tribunal as part of the settlement between the Parties:
Delete the Holding provisions from the ZBAs;
Modify the s. 37 provisions to remove the requirement for the Appellant to provide 5,000 square feet of space on the ground and mezzanine floors of the existing building, plus $500,000 to furnish the space, and to add a requirement for the Appellant to pay the City $4.25 million to be used by the City in the surrounding community;
Minor technical modifications have been made to both ZBAs to provide additional clarity as it relates to the existing building, as well as some additional minor changes agreed upon with the City.
Both ZBAs also reduce the minimum GFA for non-residential uses from 1,100 to 850 m2, being a minor reduction, which meets the intent of the CZBL and maintains the permission for additional non-residential floor area as required; and,
Additional wording changes for clarity are provided in the ZBAs.
8In support of the settlement, Mr. Trudelle provided summary opinions as directed by the Tribunal while referring to detailed analysis provided in the Planning Report prepared by the Goldberg Group dated March 2020 and the supporting report by City Staff dated October 28, 2021. Mr. Trudelle provided supporting excerpts from the staff report and indicated that he concurs with the City staff planning opinions which stated:
The proposed development is consistent with the Provincial Policy Statement (2020) and conforms with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) and conforms to the City's Official Plan.
This report reviews and recommends approval of the application to amend the Zoning By-law, both by-laws 438-86 and 569-13. The proposal is in keeping with the intent of the Toronto Official Plan, particularly as it relates to intensification in the Downtown, which is a designated growth area, in the form of a tall building which conforms to the site specific provisions of Official Plan Amendment 82, the Downtown Plan and generally conforms with the guidelines. Staff worked with the applicant and the community to address and resolve various massing issues including appropriate tower and podium heights and heritage impacts. The provision of a range of dwelling unit types will help address housing issues. Staff recommend that Council support approval of the zoning by-law amendment application.
9Based on the uncontroverted land use planning opinion evidence of Mr. Trudelle, the material that was before the Approval Authority when it made its decision, as well as the documents on file, the Tribunal finds that the proposed ZBAs have regard for the provincial interest, are consistent with the Provincial Policy Statement 2020, conform with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020, conform with the City Official Plan and the SASP 461, and represent good land use planning.
10The Tribunal has further reviewed the s. 37 agreement and finds that the requested changes are appropriate and in conformity with the provisions of the Planning Act.
INTERIM ORDER
11THE 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 12 below, and the Zoning By-law Amendments set out in Schedule 1 and Schedule 2 to this Interim Order, are hereby approved in principle.
12The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:
a. The final form of the Zoning By-law Amendments are received by the Tribunal; and,
b. Confirmation of the City Solicitor that s. 37 provisions have been finalized and registered to the Title of the subject properties.
13The Panel Member will remain seized for the purposes of reviewing and approving the final form of the Zoning By-law Amendments and the issuance of the Final Order.
14If the Parties do not submit the final drafts of the Zoning By-law Amendments, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order, set out in paragraph 12 above, have been satisfied, and do not request the issuance of the Final Order, by Friday, November, 24, 2023, 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 Amendments 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.
15The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and the 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: 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.
SCHEDULE 1
SCHEDULE 2