Amdev (Beamish) LP v. Toronto (City), 2023 CanLII 92324

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 05, 2023

CASE NO(S).: OLT-22-004501

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

Applicant and Appellant: Amdev (Beamish) LP

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

Purpose: To permit a 52-storey mixed-use building

Property Address: 4-10 Beamish Drive

Municipality: City of Toronto

Approval Authority File No.: 19 232228 WET 03 OZ

OLT Case No.: OLT-22-004501

OLT Lead Case No.: OLT-22-004501

OLT Case Name: Amdev (Beamish) LP v. Toronto (City)

Heard: August 21, 2023 by video hearing

APPEARANCES:

Parties Counsel

Amdev (Beamish) LP ("Applicant"/"Appellant") Zachary Fleisher

City of Toronto ("City") Marc Hardiejowski

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON AUGUST 21, 2023 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This is a Settlement Hearing concerning an appeal by Amdev (Beamish) LP. The Applicant is seeking a Zoning By-law Amendment ("ZBA") to facilitate redevelopment of the properties located at 4-10 Beamish Drive (the "Subject Site").

2The application initially proposed a 52-storey mixed-use building at the Subject Site, but now the Applicant is proposing a 44-storey building in order to settle the matter. The appeal arises following a non-decision by the City regarding the initial application within the prescribed time-period.

Settlement

3Uncontroverted evidence in support of the proposed settlement was provided by Anne McIlroy, a professional land use planner who was duly qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.

Background

4Ms. McIlroy provided the following account of the facts.

Subject Site

5The Subject Site is located in Etobicoke Centre in the Six Points Area of the City, on Beamish Drive between Bloor Street West to the north and Dundas Street West to the south. The Subject Site is comprised of lots municipally known as 4, 6, 8 and 10 Beamish Drive. These lots currently consist of four detached residential properties which have been re-purposed for professional office and medical uses.

6The Subject Site has a frontage along Beamish Drive of approximately 60 metres ("m"), a depth of approximately 29 m and a total site area of 2,355 square metres ("m²") (0.2355 hectares). In terms of topography, the Subject Site is generally flat.

Area Context

7The Subject Site is within 500 m of the Kipling GO station and Kipling subway station. It is part of a small area of low-rise properties fronting the west side of Beamish Drive, within a larger triangular area of properties including the Six Points Plaza. The general area context is varied and includes low-rise single detached residential properties, some re-purposed for commercial uses, and low-rise commercial properties.

8The lands surrounding the Subject Site have been the focus of considerable development activity in recent years. Existing tall buildings that were approved and constructed 10 to 15 years ago are less dense compared to recent development applications and approvals in Etobicoke Centre.

9The tallest residential mixed-use building recently constructed is 40 storeys in height, located at 5249 Dundas Street West. Earlier this year, a 50-storey residential mixed-use building was approved by the City at 5251 Dundas Street West. The City has approved multiple towers in the area ranging in heights from 25 to 45 storeys.

10North of the Subject Site are one- to two-storey commercial buildings fronting Bloor Street West. The north side of Bloor Street West contains two-storey commercial buildings and several residential buildings. The Six Points residential neighbourhood north of Bloor Street West includes primarily single-detached residential dwellings.

11The area immediately west of the Subject Site contains the Six Points Plaza, which is a large one- to two-storey commercial plaza with extensive surface parking areas. West of the plaza are single-detached residential dwellings (some used for businesses) fronting Jopling Avenue South and a hydro utility corridor west of Jopling Avenue. Six Points Plaza has recently had a large master plan approved by the City, including development of multiple buildings ranging in heights from eight to 45 storeys, a new public street and a public park.

12South of the Subject Site at 12 Beamish Drive is a one-and-a-half-storey dental office in a former detached dwelling. In the block south of Dundas Street West, between Aukland Road and Kipling Avenue are five residential towers ranging from 21 to 36 storeys. Within the block of these towers is the Six Points Park and Parc Nuvo Guest. The Kipling GO station (Milton GO corridor) and Kipling subway station on Line 2 Bloor-Danforth is accessed from St. Albans Rd. south of Dundas Street West and are located within walking distance to the Subject Site.

13St. Andrew’s Presbyterian Church and a commercial parking lot is located immediately east of the Subject Site as well as some low-rise strip commercial uses on the south side of Bloor Street West. East of the church, the area is largely defined by road infrastructure associated with the major reconstruction of Bloor Street West, Dundas Street West and Kipling Avenue known as the "Six Points Interchange Reconfiguration". This reconstruction was recently completed (2019-2021) and the new Etobicoke Civic Centre will be built one block east of the Subject Site. The City, through CreateTO, is redeveloping five major blocks in this area with mixed-use residential developments, including affordable housing and new public parks.

Transportation

14From a public transit perspective, the Subject Site has access to surface bus routes, higher-order transit (Kipling Station on Line 2 Bloor-Danforth) and is also serviced by regional rail service (GO). From Kipling Station, the Toronto Transit Commission (TTC) operates numerous bus routes including service to Toronto Pearson Airport via Route 900 Airport Express.

15Main bus routes operating in proximity to the Subject Site include routes to and from Kipling Station, Dundas Street West, Bloor Street West and Kipling Avenue, and include the following:

• Route #30 Lambton;
• Route #44 / #944 Kipling South / Kipling South Express;
• Route #45 / #945 Kipling / Kipling Express;
• Route #46 Martin Grove;
• Route #49 Bloor West;
• Route #111 East Mall;
• Route #112 West Mall;
• Route #123 Sherway; and
• Route #927 Highway 27 Express.

Proposed Settlement

16In May 2023, the Applicant proposed a settlement to the City which was ultimately accepted ("Settlement Proposal"). The Settlement Proposal is based on "Revised Plans", which would be implemented through the resulting proposed ZBA. Key aspects of the Revised Plans include:

• A reduced height from 52 storeys (167.5 m, excluding 6 m high mechanical penthouse) to 44 storeys (137.7 m, excluding 6 m high mechanical penthouse and an outdoor amenity terrace);
• A Tower setback of 12.5 m to the west and south property lines;
• A tiered five-storey and eight-storey podium, with increased setbacks;
• Maximum tower floor plates (gross construction area) of 825 m² for storeys nine to 28 and 785 m² for storeys 29 to 44;
• A public landscaped walkway along the southern portion of the Lands, which is adjacent to a commercial area, bicycle parking spaces, outdoor amenity patio, and an indoor pet wash area and outdoor pet relief area;
• The Revised Plans provide a minimum of 10% three-bedroom units and 15% two-bedroom units, with the plans showing 7.1% studio units, 43.2 % one-bedroom units, 39.1% two-bedroom units and 10.6% three-bedroom units.
• The Revised Plans comply with the indoor and outdoor amenity space ratio requirement as set in Zoning By-law No. 569-2013, which requires 4 m² per unit of indoor and outdoor amenity space, of which at least 2 m² per unit is dedicated towards indoor amenity.
• The Revised Plans’ vehicle parking ratio meets or exceeds the new City-wide parking standards for Zone A in By-law No. 89-2022.

17As part of the settlement, the Applicant agreed that the final order of the Tribunal would be withheld, pending completion of the following conditions:

• Confirmation that the ZBA is in final form and content, to the satisfaction of the City Solicitor and Chief Planner and Executive Director, City Planning;
• The owner has submitted a revised Functional Servicing Report and Stormwater Management Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, with such report to determine the storm water run-off, sanitary flow and water supply demand resulting from the development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development and/or any upgrades that may be required;
• The owner has made arrangements to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, for the construction of any improvements to the municipal infrastructure, including the use of a Holding provision in the site-specific zoning by-law amendment, if necessary, should it be determined that upgrades are required to the infrastructure to support the development as identified in the accepted Functional Servicing and Stormwater Management Reports accepted by the Chief Engineer and Executive Director of Engineering & Construction Services;
• The owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review, as they relate to the ZBA application, to the satisfaction of the General Manager, Parks, Forestry and Recreation;
• The owner has submitted a revised a Transportation Impact Study, to the satisfaction of the General Manager, Transportation Services; and
• The owner has submitted a revised Pedestrian Wind Study, to the satisfaction of the Chief Planner and Executive Director, City Planning, with recommendations implemented as part of the ZBA to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.

Planning Analysis

18The following opinions were expressed by Ms. McIlroy.

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

19The Settlement Proposal and its implementing ZBA, have regard to relevant matters of provincial interest in Section 2 of the Planning Act including interests identified at subsections f, g, h, i, j, I, o, p, q, r and s.

Provincial Policy Statement ("PPS")

20The Settlement Proposal is consistent with the PPS, and in particular, policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.4.3, 1.6.2, 1.6.3, 1.6.7.4, 1.7.1, and 1.8.1.

Growth Plan for the Greater Golden Horseshoe ("Growth Plan")

21The Growth Plan Policy 2.2.1(2)(c) provides that, within settlement areas, growth will be focused in delineated built-up areas, strategic growth areas, locations with existing or planned transit (with a priority on higher order transit where it exists or is planned), and areas with existing or planned public service facilities. The Revised Plans conform with the Growth Plan insofar as the Subject Site is an appropriate location for intensification, given its location in a City Centre, and its proximity to high order transit.

22The Settlement Proposal otherwise conforms with the Growth Plan, and in particular, the Guiding Principles in Section 1.2.1 and Policies 2.2.1(2)(c), 2.2.1(3)(b, c, d), 2.2.1(4), 2.2.2(3), 2.2.3.(1)(b, c, d), 2.2.4(9), 2.2.4 (10), 2.2.6(2), 5.2.5(1) and 5.2.5(6).

City of Toronto Official Plan ("City OP")

23The applicable land use designation on the Subject Site is Mixed-Use Areas, as identified on Map 14 (Land Use Plan) of the City OP. The lands directly to the north, east, west, and south are also designated Mixed-Use Areas. Lands further north of the Subject Site are designated Neighbourhoods and lands farther southeast are designated as Core Employment Areas.

24Section 4.2 of the City OP recognizes that under the Mixed-Use Areas designation a broad range of commercial, residential and institutional uses, in single use or mixed-use buildings, are permitted. Criteria for intensification of Mixed-Use Areas is stated in Section 4.5.

25The Settlement Proposal conforms to the following policies of the City OP (as it existed in June 2022), including Policies:2.2(2), 2.2.2 (1), 2.2.2(2), 2.3.1(3), 2.4(4), 2.4(7), 2.4(8)(a), 3.1.1(1), 3.1.1(2), 3.1.3(1), 3.1.3 (2), 3.1.3(3), 3.1.3(4), 3.1.3(5), 3.1.3(6), 3.1.3 (7), 3.1.3(8), 3.1.3(9), 3.1.3(10), 3.2.1(1), 3.2.1(2), 4.5(1), 4.5(2).

Etobicoke Center Secondary Plan ("ECSP")

26The ECSP promotes a vibrant mix of employment and housing opportunities for residents to walk or use public transit to get to work and reduce auto dependency. Map 12-1 of the ECSP identifies seven distinct areas within Etobicoke Centre to be enhanced based on their prospective location, physical form, and function. The location of the Subject Site is within one of these identified areas, the Six Points Focus Area, and is adjacent to Islington Village along Bloor Street West. The Six Points Focus Area is and will continue to form a high-density mixed-use neighbourhood that benefits from proximity to Kipling Station.

27Furthermore, the Settlement Proposal conforms to the following policies of the ECSP, including Policies: 3.3.1, 3.3.1.1, 3.3.1.2, 3.3.1.3, 3.4.1, 3.4.4, 3.4.6, 3.6.1, 3.9.4, 3.9.5, 3.10.1, 3.10.2, 3.10.3, 3.13.2, 3.13.2.1.

Etobicoke Zoning Code

28The Subject Site is subject to the Etobicoke Zoning Code. It is currently zoned as Etobicoke Centre (EC2). Tall buildings up to 60 m, excluding the mechanical penthouse, (approximately 20 storeys) are already permitted under EC2 zoning.

29The existing permitted uses pursuant to the Etobicoke Zoning Code include:

• Residential dwelling units and senior citizen apartment units permitted above the ground floor only, in combination with any other permitted uses;
• Neighbourhood stores; bakery shops; banks; municipal uses; temporary sales offices for the purposes of marketing and sales related to use(s) permitted on the property within a building on the same lot; administrative/business/professional offices; photographers; shoe repair shops; tailor; public parking areas; customer-operated automatic laundries; nursery;
• Day nurseries; health centres; commercial schools; athletic/fitness clubs; convenience/ take-out/standard restaurants, with or without patios; one (1) food vending cart, except on a corner lot where a second food vending cart will be permitted; medical and dental offices; dry cleaners; service rental shops; duplicating stores; personal service/grooming shops; community centres; places of worship; elementary schools, secondary schools; commercial schools; veterinary hospitals; retail stores; craft and art galleries; and
• Apartment houses, senior citizen apartment buildings and community houses, hotels, theatres, cinemas, undertaking establishments, hospitals, museums, television and radio studios, and movie film studios.

30The proposed uses as part of the Revised Plans are among these permitted uses.

Applicable Guidelines

31The "Growing Up: Planning for Children in New Vertical Communities Urban Design Guidelines" seek to achieve a minimum of 25% two- and three-bedroom units, comprised of 15% two-bedroom units and 10% three-bedroom units. The Settlement Proposal exceeds these guidelines by providing 39.1% two-bedroom units and 10.6% three-bedroom units.

32The "Pet Friendly Design Guidelines and Best Practices for New Multi-unit Buildings" were developed and apply City-wide to new multi-unit residential buildings that are required to provide amenity space. This document is intended to guide new developments in a direction that is supportive of a growing pet population. The Settlement Proposal includes an indoor pet wash area and outdoor pet relief area at the southwest corner of the site.

33The City-wide "Tall Building Design Guidelines" states site-specific heights will be refined through a re-zoning process that takes both height and building performance standards into consideration to determine whether a development application performs to the highest architectural and built form design standards. Thes guidelines are not intended to be strictly applied, but rather include flexibility to meet their overall intent.

34The Tall Building Design Guidelines provide recommendations for tall building design including building placement, orientation and entrances, base building massing, tower size, setbacks and separations, public realm considerations, transition, and sustainable design. Collectively, the recommendations help create well-designed tall buildings that fit the site and context and minimize negative urban design impacts. These guidelines are used to supplement the review of the new built form and to evaluate specific site conditions and the type of built form being proposed. The Tall Building Design Guidelines include sections related to Site Context, Site Organization, Tall Building Design and Pedestrian Realm, each containing its own principal guideline statements. The Settlement Proposal follows the general intent and purpose of the Tall Building Design Guidelines.

35The "Etobicoke Centre Urban Design Guidelines" are to be read in conjunction with the ECSP. The guidelines were developed subsequent to those found in Chapter 12 of the Official Plan Secondary Plans. These guidelines function as a framework for the form and layout of new development in the area. The Settlement Proposal follows the general intent and purpose of relevant sections in the Etobicoke Centre Urban Design Guidelines.

Summary and Conclusion

36Ms. McIlroy opined that the intensification on the Subject Site is supported by numerous policy directions articulated in the PPS, the Growth Plan, the City OP and the ECSP, all of which promote intensification on sites well served by municipal infrastructure, including higher-order transit.

37She further opined that the Subject Site is well-situated for intensification given its proximity to major transit. The Subject Site is located within 500 m of the Kipling subway a Council-adopted Protected Major Transit Station Area (PMTSA), and Kipling GO station, which is classified as a mobility hub in Metrolinx’s Mobility Hub Guidelines. Accordingly, she opined, the proposed development would provide for an appropriate level of transit-supportive residential intensification that would encourage transit ridership.

38Ms. McIlroy further testified that the Subject Site is located within Etobicoke Centre, which is planned to become the western downtown for the City of Toronto, where many development and open space improvements, including a new civic centre, will combine to transform the area into a vibrant, mixed-use, transit supportive and complete community.

39From a land use perspective, Ms. McIlroy opined that the Revised Plans conform with the land use permissions of the Mixed-Use designation, which permits a broad range of commercial, residential and institutional uses, in single use or mixed-use buildings.

40From an urban design perspective, Ms. McIlroy opined that the Revised Plans provide for a height and massing that would fit harmoniously within its existing and planned context while ensuring appropriate transition to the existing adjacent neighbourhoods.

41Ms. McIlroy concluded that the Settlement Proposal and related Revised Plans are appropriate and desirable from a land use planning and urban design perspective and should be facilitated through the approval (in principle) of the jointly proposed ZBA.

42The Tribunal accepts Ms. McIlroy’s evidence and opinions, and similarly finds that the Settlement Proposal and related Revised Plans are consistent with the PPS, conforms to the Growth Plan, the City OP, and the ECSP, has appropriate regard for the matters of provincial interest set out in Section 2 of the Planning Act and applicable urban design guidelines, represents good planning and is in the public interest.

INTERIM ORDER

43THE TRIBUNAL ORDERS that;

1. The appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in subparagraph 2 below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.

2. The Tribunal will withhold issuance of its Final Order contingent upon confirmation from the Parties of the following pre-requisite matters:

a) the proposed Zoning By-law Amendment instruments are in a final form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b) the Owner has submitted a revised Functional Servicing and Stormwater Management Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and such report shall determine the stormwater run-off, sanitary flow and water supply demand resulting from the revised development proposal and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development and/or whether any upgrades that may be required;

c) the Owner has made arrangements to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, for the construction of any improvements to the municipal infrastructure, including the use of a Holding provision in the site-specific zoning by-law amendment, if necessary, should it be determined that upgrades are required to the infrastructure to support the development as identified in the accepted Functional Servicing and Stormwater Management Reports accepted by the Chief Engineer and Executive Director, Engineering and Construction Services;

d) the Owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review, as they relate to the Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry and Recreation;

e) the Owner has provided a revised Transportation Impact Study, to the satisfaction of the General Manager, Transportation Services; and

f) the Owner has provided a revised Pedestrian Wind Study, to the satisfaction of the Chief Planner and Executive Director, City Planning, with recommendations implemented as part of the amending Zoning By-laws, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.

3. The 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.

4. If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in subparagraph 2 above have been satisfied, and do not request the issuance of the Final Order, by February 21, 2024, 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.

5. The 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 instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

"K.R. Andrews"

K.R. ANDREWS 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.

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