Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 21, 2023

CASE NO(S).: OLT-22-002957 (Formerly PL210231)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: King David Inc.

Subject: By-law No. 2021-15

Municipality: City of Markham

OLT Case No.: OLT-22-002957

Legacy Case No.: PL210231

OLT Lead Case No.: OLT-22-002957

Legacy Lead Case No.: PL210231

OLT Case Name: King David Inc. v. Markham (City)

Heard: November 15, 2022 by video hearing

APPEARANCES:

Parties	Counsel
King David Inc.	M. McDermid
City of Markham	M. Cheung-Madar
Flato Developments Inc.	K. Sliwa, M. Reedijk and D. Betlej
Leporis Construction Inc.	K. Sliwa, M. Reedijk and D. Betlej

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON NOVEMBER 15, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a settlement hearing that was held on November 15, 2022 regarding the appeal brought by King David Inc. (“Appellant”) of the passage by the City of Markham (“City”) of a zoning by-law amendment to facilitate development on the lands located 2695 Elgin Mills Road East (“subject lands”).

2The subject lands are located east of Highway 404 on lands designated as “Urban Area”, “Service Employment”, “Business Park Employment”, and “Greenway System Area” under the City’s Official Plan. They are currently zoned “Rural Residential Four (RR4)” under the City’s Zoning By-law No. 304-87. The proposed Zoning By-law Amendment would delete the subject lands from the designated areas of Zoning By-law No. 304-87 and re-zone the subject lands to “Business Corridor (BC)”, “Business Park (BP)”, and “Open Space One (OS1)” under the City’s Zoning By-law No. 177-96.

3At a Case Management Conference, held on December 7, 2021, the Tribunal granted Party status to Flato Developments Inc. (“Applicant”) and Leporis Construction Inc. (“Leporis”). Leporis owns lands adjacent to the subject lands.

4On October 11, 2022, the Applicant informed the Tribunal that a proposed settlement of the appeal had been reached.

5On November 15, 2022, the Tribunal convened a settlement hearing to consider the proposed settlement.

ISSUES

6The issues that the Tribunal must address when adjudicating a zoning by-law amendment appeal are whether the proposed instrument:

a) is consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”));

b) conforms with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019 as amended (“Growth Plan”));

c) conforms with applicable official plans (in this case, the York Region Official Plan and the City’s Official Plan); and

d) represents good planning.

7The Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and have regard to the decision made by City Council to pass the proposed Zoning By-law Amendment and the information and materials that City Council considered when making its decision (as required under s. 2.1(1) of the Planning Act).

EVIDENCE AND SUBMISSIONS

8The Applicant filed an affidavit sworn by Emma West, dated November 8, 2022. Ms. West is a land use planner retained by the Applicant. She also provided oral testimony at the settlement hearing. The Tribunal qualified her to provide opinion evidence in the area of land use planning.

9The City and Leporis support the proposed settlement. Neither of them provided evidence at the settlement hearing.

10Ms. West stated that the proposed Zoning By-law Amendment would permit Employment Zone uses on the subject lands subject to site-specific development standards while retaining a portion of the lands for environmental protection. She said the proposed site-specific Business Corridor Zone (BC680) would be located on the northern part of the subject lands and have building heights that are a function of the lot area and the allowable coverage. She said that retail stores and places of worship would be permitted subject to gross floor area restrictions. Ms. West said the proposed site-specific Business Park Zone (BP681) would be located on the southern part of the subject lands. She said it would aim to be a visually attractive area that balances function with aesthetics. She said the remaining lands, constituting roughly 50 percent of the subject lands, would be zoned Open Space to protect natural heritage features. She stated that as a result of the proposed settlement, the Parties agreed to requirements for landscaping adjacent to front lot lines in the Business Corridor Zone (BC680) and reduced maximum building heights in the Business Corridor Zone (BC680) and Business Park Zone (BP*681).

11Ms. West opined that the proposed Zoning By-law Amendment is consistent with the PPS. She said it facilitates the efficient use of land by permitting employment uses in an employment designated area with available public service facilities, access to public roads, and transit. She stated that the proposed Zoning By-law Amendment would facilitate compact development at an appropriate density and support the long-term employment needs of the community. She opined that it promotes economic prosperity and opportunities for economic development and protects natural heritage features through buffering and the designation of much of the subject lands as Open Space.

12Ms. West opined that the proposed Zoning By-law Amendment conforms with the Growth Plan. She said the subject lands are designated under the Growth Plan as a Provincially Significant Employment Zone. She said the proposed Zoning By-law Amendment would facilitate the re-urbanization of a land parcel within the Urban Area and provide for a mix of employment uses with convenient access to a range of transportation options. She reiterated that it would ensure employment uses on the subject lands over the long term.

13Ms. West opined that the proposed Zoning By-law Amendment conforms with the York Region Official Plan, 2010 and the York Region Official Plan, 2022. She stated that the subject lands are designated as “Urban Area” under the York Region Official Plan, 2010 and as “Urban Area” and “Employment Area” under the York Region Official Plan, 2022. She said the Urban Areas are intended as the focus for growth and development in the Region. She said the proposed Zoning By-law Amendment would contribute to the Region’s economic base and provide for a diverse range of employment uses over the long term. She said it would facilitate transit supportive employment opportunities in a compact built form that is close to an established community allowing residents to live close to their workplaces.

14Ms. West opined that the proposed Zoning By-law Amendment conforms with the City’s Official Plan. She stated that the subject lands are designated as “Urban Area”, “Service Employment”, “Business Park Employment”, and “Greenway System”. She said the subject lands are an appropriate location for office, hotel, and other general employment uses and that they would complement surrounding uses. She said the proposed permitted density under the proposed Zoning By-law Amendment optimizes the use of land and infrastructure and the proposed Zoning By-law Amendment would facilitate appropriate built form and urban design through its setbacks, site organization, and buffers from natural features. She said the proposed Zoning By-law Amendment is subject to the urban design guidelines set out in the City’s Cathedral Community Design Plan, which identifies the subject lands as “Business Corridor”, “Business Park”, and “Employment District”. She opined that the proposed Zoning By-law Amendment would facilitate development that is consistent with the Design Plan’s built form design guidelines by facilitating the development of buildings, parking and pedestrian areas that are located in a way that minimizes impacts on adjacent areas and provides for the configuration of the subject lands with convenient and safe access and egress. Ms. West opined that, while the proposed Zoning By-law Amendment would reduce parking requirements, this is appropriate given the availability of transit in the area and the fact that reduced parking would allow for a more efficient use of land. She said that the proposed Zoning By-law Amendment’s requirements for the protection of natural features would help maintain the character and identity of the area and the proposed development would not disrupt view corridors of the nearby Cathedral of the Transfiguration.

15Ms. West stated that she had regard to the matters of provincial interest set out in s. 2 of the Planning Act, including those on the protection of ecological systems, the orderly development of safe and healthy communities, the provision of employment opportunities, the appropriate location of growth and development, support for public transit, and promotion of appropriate built form.

FINDINGS

16Based on Ms. West’s opinion evidence, the Tribunal finds that the proposed Zoning By-law Amendment is consistent with the PPS and conforms with the Growth Plan, the York Region Official Plan, and the City’s Official Plan. The Tribunal has had regard to the City’s applicable policies and guidelines and the matters of provincial interest in s. 2 of the Planning Act as well as the decision of City Council and the information and materials that City Council considered when making its decision. The Tribunal finds that the proposed Zoning By-law Amendment constitutes good planning.

ORDER

17The Tribunal orders the appeal is allowed in part.

18The Tribunal orders that the City of Markham Zoning By-law No. 304-87 and City of Markham Zoning By-law No. 177-96 are amended in accordance with the Zoning By-law Amendment attached as Attachment 1 to this Order and Decision.

19The Tribunal authorizes the municipal clerk to format, as may be necessary, and assign a number to the Zoning By-law Amendment for record keeping purposes.

“Hugh S. Wilkins”

hugh s. wilkins

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.

Attachment 1