Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2023

CASE NO(S).: OLT-22-003600

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

Applicant and Appellant: 9861 Yonge Developments Inc.

Subject: Request to amend the Official Plan - Failure of the City of Richmond Hill to adopt the requested amendment

Existing Designation: “Downtown Local Centre”

Proposed Designation: An amendment to the Official Plan for the City of Richmond Hill Planning Area to seek additional density within the “Civic District” of the “Downtown Local Centre” designation in order to facilitate the proposed mixed-use development on the subject lands

Purpose: To permit the construction of a mid-rise mixed-use residential/commercial development consisting of a 5-storey commercial building along Yonge Street, an 8-storey residential building in the centre of the subject lands and 4 townhouse units fronting onto Church Street for a combined total of 82 residential units

Property Address/Description: 9861 Yonge Street and 240 Church Street

Municipality: City of Richmond Hill

Approval Authority File No.: D01-12011

OLT Case No.: OLT-22-003600

Legacy Case No.: PL171381

OLT Lead Case No.: OLT-22-003600

Legacy Lead Case No.: PL171381

OLT Case Name: 9861 Yonge Developments Inc. v. Richmond Hill (City)

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

Applicant and Appellant: 9861 Yonge Developments Inc.

Subject: Application to amend Zoning By-law No. 66-71, as amended - Neglect of the City of Richmond Hill to make a decision

Existing Zoning: “Residential Multiple Third Density (RM3) Zone” and “Residential Second Density (R2) Zone”

Proposed Zoning: “General Commercial Residential (GCR) Zone”

Purpose: To permit the construction of a mid-rise mixed-use residential/commercial development consisting of a 5-storey commercial building along Yonge Street, an 8-storey residential building in the centre of the subject lands and 4 townhouse units fronting onto Church Street for a combined total of 82 residential units

Property Address/Description: 9861 Yonge Street and 240 Church Street

Municipality: City of Richmond Hill

Municipality File No.: D02-12032

OLT File No.: OLT-22-003602

Legacy File No.: PL171382

OLT Lead Case No.: OLT-22-003600

Legacy Lead Case No.: PL171381

Heard: September 19, 2023 by video hearing

APPEARANCES:

Parties	Counsel
9861 Yonge Street Development Inc.	David Neligan
City of Richmond Hill	Carlton Thorne
Metroview Developments (Harding) Inc.	Ian Andres

DECISION DELIVERED BY A. MASON AND STEVEN COOKE AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This is a Settlement Hearing concerning an appeal by 9861 Yonge Street Development Inc. (“Applicant/Appellant”) against the failure of the City of Richmond Hill (“Town”) Council to make a decision with respect to applications for site-specific Official Plan and Zoning By-law Amendments (the “Applications”) for the lands known as 9861 Yonge Street and 236-240 Church Street (the “Subject Property”).

2At a prior case management on March 18, 2018 at the Ontario Municipal Board (“OMB”), as it then was, Party status was conferred to Metroview Developments (Harding) Inc. (“Metroview”) being the owner of the lands to the south of the Subject Property. At the same hearing event, Participant status was conferred to Vladimir Arkhangeliskiy and Masoud Mollajafar (together, the “Participants”).

3Prior to the hearing of any evidence, Metroview advised that their attendance at the settlement hearing event was not in objection to the settlement achieved between the other Parties.

4Counsel for the Applicant/Appellant advised that no communication from the Participants was received in response to the settlement between the Parties and the Participants did not attend the hearing event.

5On consent, one witness was proffered to give sworn, viva voce evidence to the Tribunal in support of the revised development concept (the “Revised Development”). The Tribunal qualified Michael Testaguzza, a Land Use Planner and Registered Professional Planner in the Province of Ontario, to prove opinion evidence in the field of land use planning.

6Mr. Testaguzza provided an affidavit sworn on May 15, 2023 in support of the settlement proposal (Exhibit 1).

BACKGROUND

7The Subject Property is located on the east side of Yonge Street, approximately 160 meters (“m”) south of Major Mackenzie Drive and is comprised of three separate parcels, being 9861 Yonge Street and 236-240 Church Street South.

8The Applications have undergone multiple iterations over several years and were appealed to the OMB, as it then was, in November 2017 and assigned file numbers PL171381 and PL171382 (the “Appeals”). Ultimately discussions between the City and Applicant/Appellant resulted in a revised development concept submitted to the City in February 2021 (the “Revised Development”). On November 24, 2021, Richmond Hill City Council resolved to support the Revised Development and its site-specific Official Plan Amendment and Zoning By-law Amendments in principle, subject to specific conditions to be satisfied. This is the settlement proposal before the Tribunal.

REVISED DEVELOPMENT

9The Revised Development consists of a 10-storey midrise, mixed-use, building with a 3-storey height along the Church Street frontage of the Subject Property. The building will contain 149 residential units and 179 parking spaces, along with nearly 260 square meters of retail uses (2-units) facing Yonge Street and wrapping around the southern corner of the building to provide frontage onto a proposed park. Bike parking is provided for residents and for people accessing the site.

10A 5.1 m road widening is provided on the Yonge Street frontage, with a building set back of a 1 m. The Revised Development provides for a step-back from Yonge Street at the 6th storey and respects a 45-degree angular plane from the opposite side of Yonge Street. Active entrances to the retail and residential uses are both on the west elevation of the building.

11Adjacent to Church Street, the building is 3-storeys in height with individual unit entrances facing the street and a 4 m set back from the property line. The façade on the Church Street elevation steps back at 3-storeys and 6-storeys thereby respecting a 45-degree angular plane from the east side of Church Street. Vehicular access is provided to the site via Church Street.

12The City has planned a park to the south and the building sits at a 3 m set back from this lot line.

FINDINGS OF THE TRIBUNAL

13Having heard and considered the sworn, uncontested viva voce and written evidence of the Mr. Testaguzza, the Tribunal is satisfied, and finds that the Revised Development constitutes good planning in accordance with the requirements of the Planning Act, provincial policy including the 2020 Provincial Policy Statement and the 2020 Growth Plan, the Region of York Official Plan 2010 (“Regional OP”) and the City of Richmond Hill Official Plan (“Richmond Hill OP”). More specifically, the Tribunal finds that:

• The mixed-use intensification of the Revised Development is desirable and in conformity to provincial policy as implemented through the Regional OP, and the Richmond Hill OP, and represents good planning and the efficient use of land and infrastructure in an existing urban area.
• The Revised Development directs intensification to existing higher order transit and the mixed-use form meets the needs of area residents while also providing retail and commercial uses.
• The built form provides an appropriate range of housing types and provides a contextually appropriate street-orientated development and transition between Yonge Street on the west with active retail uses at grade, to the low-rise neighbourhood on Church Street with townhouses and direct pedestrian access.
• The design encourages transit use and active transportation while enhancing the pedestrian experience with street orientated design.

INTERIM ORDER

14THE TRIBUNAL ORDERS the appeals be allowed in part, on an interim basis, contingent upon confirmation, satisfaction and receipt of those pre-requisite matters identified in paragraph 15 below, and the Official Plan Amendment and Zoning By-law attached hereto as Schedule 1 and Schedule 2 attached to and forming part of this decision, are hereby approved in principle.

15The Tribunal withholds the issuance of its Final Order contingent upon confirmation by the City Solicitor of the following pre-requisite matters:

a. That the Tribunal has received, and approved, the Official Plan Amendment and Zoning By-law Amendment submitted in final form, confirmed to be satisfactory to the Commissioner of Planning and Infrastructure; and

a. That the Tribunal is advised that the related Site Plan application for the development has been finalized to the satisfaction of the Commissioner of Planning and Infrastructure.

16Tribunal shall be in receipt of notice of the above within 4 months from the issuance of this decision or the Parties shall provide a written update to the Tribunal as to the timing of the expected confirmation and submission of the final form of the draft Official Plan Amendment and Zoning By-Law Amendment. 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 dismiss the Appeal.

17The Panel Members remain seized for the purposes of reviewing the final draft of the Official Plan Amendment and final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

18The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional time-lines 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.

“A. Mason”

A. MASON MEMBER

“Steven Cooke”

STEVEN COOKE VICE-CHAIR

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.

SCHEDULE 1

The Corporation of the City of Richmond Hill By-law 109-21

A By-law to Amend By-law 66-71, as amended, of The Corporation of the City of Richmond Hill Now Therefore the Ontario Land Tribunal hereby approves as follows:

1. That By-law 66-71, as amended of The Corporation of the City of Richmond Hill (“By-law 66-71”) be and is hereby further amended as follows:

a) by rezoning those lands shown on Schedule “A” to this By-law 109-21 (the “Lands”) to “Residential Multiple Six Density (RM6) Zone” under By-law 66-71; and,

b) by adding the following to Section 11 – Special Provisions “11.158

Notwithstanding any inconsistent or conflicting provisions of By-Law 66-71, as amended, the following special provisions shall apply to the lands zoned “Residential Multiple Six Density (RM6) Zone” and more particularly shown as “RM6” on Schedule “A” to By-law 109-21 and denoted by a bracketed number (11.158):

i) DEFINITIONS

For the purposes of this by-law, the following definitions shall apply:

(a) FLOOR SPACE INDEX (FSI) means the maximum GROSS FLOOR AREA of all BUILDINGS on a LOT expressed as a ratio or multiple of the LOT AREA.

(b) APARTMENT DWELLING means a BUILDING or STRUCTURE containing five or more dwelling units all of which have a common external access to the BUILDING by means of a common corridor system and/or direct exterior access for residential units.

(c) AMENITY SPACE means outdoor space on a LOT that is communal and available for use by the occupants of a BUILDING on the LOT for recreational or social activities.

(d) MECHANICAL PENTHOUSE means the rooftop floor area above the livable area of a BUILDING that is used exclusively for the accommodation of stairwells and/or mechanical equipment necessary to physically operate the BUILDING such as heating, ventilation, air conditioning, electrical, telephone, plumbing, fire protection and elevator equipment and includes walls and STRUCTURES intended to screen the mechanical penthouse and equipment.

(e) FLOOR AREA means the total horizontal area of all floors in a BUILDING.

(f) PARKING STRUCTURE means a BUILDING or part thereof used for the storage or parking of motor vehicles, which can be above or below GRADE.

(g) GROSS FLOOR AREA means the aggregate of the FLOOR AREAS of a BUILDING measured between the exterior faces

The Corporation of the City of Richmond Hill By-law 109-21

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of the exterior walls of the BUILDING at each floor level but excluding basement, MECHANICAL PENTHOUSES, loading areas, a PARKING STRUCTURE, elevator shaft, stairwell, mechanical or electrical rooms and any space with a floor to ceiling height of less than 1.8 metres.

(h) RESTAURANT means a BUILDING or STRUCTURE or part thereof whose principal business is the preparation and serving of food and refreshments to the public for consumption within the BUILDING or STRUCTURE, but does not include a DRIVE-IN RESTAURANT, TAKEOUT RESTAURANT or FAST FOOD RESTAURANT.

(i) RESTAURANT, FAST FOOD means a BUILDING or STRUCTURE or part thereof whose principal business is the sale of pre-prepared or rapidly prepared food directly to the customer in a ready to consume state for consumption either within or outside the BUILDING.

(j) RESTAURANT, TAKEOUT means a BUILDING or STRUCTURE, or part thereof, designed and used for the sale of food or refreshments to the public and from which food or refreshment is made available to the customer from within the BUILDING; in addition, no provision is made for consumption of the food or refreshment by the customer while in his car, within the BUILDING or elsewhere on the site.

ii) PERMITTED USES

The following uses shall be permitted:

(a) DWELLING, APARTMENT (1)

(b) STORE, RETAIL (2)

(c) OFFICES

(d) RESTAURANT (2)

(e) RESTAURANT, FAST FOOD (2)

(f) RESTAURANT, TAKEOUT (2) NOTES:

(1) No DWELLING UNIT shall be permitted to front on or face Yonge Street on the ground floor of a BUILDING.

(2) The uses described in (a) to (f) inclusive shall only be permitted along Yonge Street.

iii) DEVELOPMENT STANDARDS

The following development standards shall apply:

(a) The lands shown on Schedule “A” shall be deemed to be a LOT.

(b) Yonge Street shall be deemed to be the FRONT LOT LINE.

(c) Minimum LOT FRONTAGE: 20 metres

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(d) Minimum LOT AREA: 2,700 sq. metres

(e) Minimum FRONT YARD: 1.0 metres

(f) Minimum SIDE YARD (North): 1.3 metres

(g) Any portion of the BUILDING that is located within 7.5 metres of the north LOT LINE shall have a maximum HEIGHT of 6 STOREYS.

(h) Minimum SIDE YARD (South): 1.5 metres

(i) A setback of 0 metres may be permitted to the south LOT LINE for the 2nd to 10th STOREYS of the BUILDING.

(j) Minimum REAR YARD: 4.0 metres

(k) Minimum below grade SETBACK (north): 1.3 metres

(l) The maximum FLOOR SPACE INDEX shall be 4.6.

For the purpose of calculating FLOOR SPACE INDEX, the LOT AREA shall be deemed to be 2,876.97 square metres (30,967.45 square feet), exclusive of any conveyance(s) for road allowance, road widening or daylighting triangle purposes.

(m) Maximum GROSS FLOOR AREA: 13,135.50 square metres

(n) Maximum HEIGHT: 10 STOREYS or 34 metres

(o) A MECHANICAL PENTHOUSE shall not exceed 5.0 metres in height and shall not occupy more than 40% of the area of the roof upon which it is located.

(p) DWELLING UNITS along Church Street South shall have a maximum HEIGHT of 3 STOREYS.

(q) No BUILDING or STRUCTURE or part thereof shall be located above a 45 degree angular plane measured perpendicular from the westerly LOT LINES of the residential properties on the east side of Church Street South, starting at a height equal to the finished GRADE of the LOT LINE.

(r) Notwithstanding Section 4.51 of By-law 66-71, any portion of the first STOREY up to a maximum of 5.0 metres in height shall not be considered an additional STOREY.

(s) Minimum commercial FLOOR SPACE: 250 square metres

(t) Minimum driveway width: 6.0 metres

(u) A strip of land not less than 0.7 metres in depth immediately abutting the north LOT LINE shall be used for no other purpose than landscaping. Notwithstanding the foregoing, mechanical equipment and ventilation shafts shall be permitted to encroach into the required landscaping.

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(v) AMENITY SPACE must be provided for each DWELLING UNIT at a minimum rate of 2.0 square metres per DWELLING UNIT.

(w) The provisions of Subsection 6.9.2.1 shall not apply.

iv) PARKING AND LOADING STANDARDS

Parking and loading spaces shall be provided in accordance with the following:

(a) Minimum number of Loading Spaces (1): 1

(b) The minimum number of PARKING SPACES shall be calculated in accordance with the following standards:

Residential Uses:

i. 1-bedroom: 0.9 spaces per DWELLING UNIT

ii. 2-bedroom: 1.0 spaces per DWELLING UNIT

iii. 3-bedroom: 1.2 spaces per DWELLING UNIT

iv. Visitor: 0.15 spaces per DWELLING UNIT Non-Residential Uses:

v. Commercial: 4.0 spaces per 100 square metres

(c) Minimum number of bicycle parking spaces (2): 0.6 spaces per DWELLING UNIT

NOTES:

(1) Each loading space shall have a width of not less than 4.0 metres, a length of not less than 13.0 metres, and an overhead clearance of not less than 6.5 metres.

(2) A minimum of 5% of the required bicycle parking spaces shall be provided at-grade.

2. All other provisions of By-law 66-71 as amended, not inconsistent with the foregoing, shall continue to apply to the lands shown on Schedule “A” attached hereto.

3. The imperial measurements found in this by-law in brackets are provided for information purposes only and are intended to be an approximate conversion of the metric measurements. The metric or SI measurements shall be deemed to be the standards established by this by-law and, wherever there is a variance between the metric or SI measurements and the imperial measurements, the metric or SI measurement shall apply.

4. Schedule “A” attached to By-law 109-21 is declared to form a part of this by-law.

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The Corporation of The City Of Richmond Hill Explanatory Note to By-Law 109-21

By-law 109-21 affects the lands described as Part of Lots 22, 23, and 26 and Lots 24 and 25, Plan 2383, municipally known as 9861 Yonge Street and 236 and 240 Church Street South.

By-law 66-71, as amended, zones the subject lands “Residential Multiple Third Density (RM3) Zone” and “Residential Second Density (R2) Zone”, which does not permit the proposed development.

By-law 109-21 will have the effect of rezoning the subject lands to “Residential Multiple Six Density (RM6) Zone” under By-law 66-71, as amended, to permit a 10-storey mixed-use residential/commercial building on the subject lands.

SCHEDULE 2

Attachment “1”

The Richmond Hill Official Plan is amended as follows:

That Schedule A11 (Exceptions) to the Richmond Hill Official Plan be amended to identify the subject lands as Exception Area Number 32, as shown on Schedule 1 attached.

By adding the following to Chapter 6 (Exceptions):

“6.32

Notwithstanding any other provision of this Plan to the contrary, in accordance with Ontario Land Tribunal Decision (Case No. PL171381) for the lands known as Part of Lots 22, 23 and 26 and Lots 24 and 25, Registered Plan 2383 (Municipal Addresses: 9861 Yonge Street and 236 and 240 Church Street South) and shown as Exception Area Number “32” on Schedule A11 (Exceptions) to this Plan, the following shall apply:

a) It is intended that the subject lands be developed in the form of a mixed-use residential/commercial building, with a maximum gross floor area of 13,135.50 square metres (141,389.35 square feet);

b) The maximum density permitted on the subject lands shall be 4.6 FSI (Floor Space Index) based on a total combined lot area of 2,876.97 square metres (30,967.45 square feet);

c) The maximum building height permitted on the subject lands shall be 10 storeys; and,

d) Section 3.4.1.59 shall not apply to the subject lands.”