Richmond Hill Against Overdevelopment v. Richmond Hill (City), 2024 CanLII 102763

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2024

CASE NO(S).: OLT-23-000938 OLT-23-001000

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Richmond Hill Against Overdevelopment Subject: Proposed Official Plan Amendment No. 43 Description: To permit the development of a 28 storey high-density apartment building with a podium consisting of 284 residential units Reference Number: D01-20004 (Official Plan Amendment 43) Property Addresses: 10684 and 10692 Yonge Street Municipality/UT: City of Richmond Hill/ Regional Municipality of York OLT Case No.: OLT-23-000938 OLT Lead Case No.: OLT-23-000938 OLT Case Name: Richmond Hill Against Overdevelopment v. Richmond Hill (City)

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

Applicant/Appellant: Sabella Ridge Estates Inc. Subject: Zoning By-law Amendment Application – failure to make a decision Description: To permit the development of a 28 storey high-density apartment building with a podium consisting of 284 residential units Reference Number: D02-20010 Property Address: 10684 and 10692 Yonge Street Municipality: City of Richmond Hill/ Regional Municipality of York OLT Case No.: OLT-23-001000 OLT Lead Case No.: OLT-23-001000 OLT Case Name: Sabella Ridge Estates Inc. v. Richmond Hill (City)

Heard: September 16-17, 2024 by video hearing

APPEARANCES:

Parties	Counsel
Sabella Ridge Estates Inc.	Paul DeMelo
City of Richmond Hill	Carlton Thorne
Richmond Hill Against Overdevelopment	David R. Donnelly

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION and background

1It is rare to have two fully planned and complete development proposals brought before the Tribunal as part of an Application for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”), concerning the same property. Rarer still is a case where there is no dispute that both proposals are policy-supported and otherwise satisfy the requisite statutory tests, in order for the Tribunal to approve the respective OPA and ZBA to facilitate the development of either plan. Such is the case in the present matter, however, which now tasks the Tribunal with adjudicating a contest between two worthy development proposals at 10684 and 10692 Yonge Street (the “Subject Lands”) in the City of Richmond Hill (the “City”).

2In one corner of this contest is the developer, Sabella Ridge Estates Inc. (“Sabella”), which is notably aligned with an area residents’ association, Richmond Hill Against Overdevelopment (“RHAO”). Together, they are advocating for planning approvals to permit a 28-storey apartment building with a 4.0 Floor Space Index (“FSI”) (hereafter the “28-storey proposal”). In the opposite corner is the City, which is advocating for planning approvals that will only permit a 25-storey apartment building with a 3.5 FSI (hereafter the “25-storey proposal”). The present OPA appeal concerns the passing of OPA 43, allowing the latter 25-storey proposal.

3The alliance between Sabella and RHAO is notable because the OPA appeal was initially commenced by RHAO in opposition to the 25-storey proposal. RHAO initially appealed the shorter, less dense proposal while expressing concerns about overdevelopment. Now, RHAO supports a taller and denser proposal, as sought by Sabella, but with specific surface-parking concessions that are sensitive to adjacent low-density residential uses. As it happens, RHAO’s appeal presently provides Sabella with an avenue to seek approvals from the Tribunal for its preferred 28-storey proposal – without which Sabella would have to start the OPA application process all over again.

4The City is asking the Tribunal to dismiss RHOA’s appeal, confirming approval of OPA 43, which permits the 25-storey proposal.

5Unlike the subject OPA appeal, the related ZBA appeal was commenced by Sabella, following the City’s failure to make a decision concerning Sabella’s application for a ZBA to permit the 28-storey proposal. However, the relief being sought by Sabella regarding the sought-after ZBA will be contingent upon the Tribunal first allowing RHOA’s OPA appeal, in part, to similarly permit the 28-storey proposal.

6As it relates to the ZBA appeal, the City is requesting that the Tribunal instead approve a ZBA to allow the 25-storey proposal.

7To understand how the Parties arrived at their current positions, it helps to look at the history of the underlying OPA and ZBA applications. Initially, Sabella submitted a complete application for an OPA to permit a 28-storey building with a 4.12 FSI (noting that this density is slightly greater than what they are now seeking). After receiving commentary on the plans, including from the City and neighborhood community, Sabella revised its application to seek an OPA to permit only the 25-storey proposal. This version of the plan was subsequently considered and recommended by City staff (the original 28-storey plan was never formally considered), and OPA 43 was then passed by council to facilitate the 25-storey development. As mentioned, this led to RHAO’s appeal of OPA 43.

8In a later turn of events, Sabella and RHAO found common ground, and agreed to collaboratively support the 28-storey proposal, with a concession in favour of RHAO to remove encroaching surface parking in a specific area of the Subject Lands, away from existing single-family residential homes (Sabella and RHAO agreed to implement such parking limitations within the subject ZBA). Consequently, RHAO maintained its appeal before the Tribunal, with Sabella’s support, and now they jointly pursue approval of an OPA to permit the present 28-storey proposal. Consistent with this approach, Sabella sought a corresponding ZBA to permit the same 28-storey proposal, with RHAO’s support as a means to secure the aforementioned parking limitations.

9As explained by counsel for the City, City Council has never contemplated the 28-storey proposal, nor has it provided instructions to him to advocate for anything other than the 25-storey proposal that is facilitated by OPA 43. In other words, he has no authority to concede the contest in favour of the 28-storey proposal, regardless of the evidence before the Tribunal.

Site Description and Surrounding Context

10Evidence about the general characteristics of the Subject Lands and surrounding context was provided by Sabella’s Land Use Planner, Lincoln Lo (“Expert Lo”). As with the remainder of his evidence, there was no dispute about his account of such facts.

11The Subject Lands measure approximately 0.5 hectares (1.4 acres) in size and are located on the west side of Yonge Street, generally between Elgin Mills Road and Oxford Street. The Subject Lands feature a larger ‘bulb’ fronting onto Younge Street, and a ‘panhandle” projecting to the west. An illustration of the Subject Lands, together with an outline of some aspects of the original 28-storey proposal, are shown below at Figure 1:

Figure 1: the Subject Lands

12Within the above drawing, the red line intersecting the panhandle indicates the approximate area, west of the line, that Sabella agrees to restrict surface parking.

13The Subject Lands are located within an active urban environment and are surrounded by a variety of uses. The immediate surrounding land uses include:

• NORTH: Commercial Plaza (Elgin Mills Centre).
• SOUTH: Commercial Plaza.
• WEST: Single Detached Dwellings.
• EAST: Yonge Street Frontage; Auto Dealerships; Auto Service/Repair Shops; Restaurant; Hotel.

14The Subject Lands are also located within the Elgin Mills Protected Major Transit Station Area (PMTSA), which has a minimum density target of 160 people and jobs per hectare. Having frontage onto Yonge Street, which is a regional corridor with existing rapid bus transit service on a dedicated right-of-way, the Subject Lands are well served by existing and planned higher-order transit. The Subject Lands are also located near existing and planned cycling facilities.

The Development Proposals

15Expert Lo confirmed that Sabella’s current proposal features the following:

• A 28-storey mixed-use building with a 5-storey podium fronting along the west side of Yonge Street;
• 343 apartment units;
• 307 parking spaces proposed within one level of underground and four levels of above-grade parking (within the podium);
• overall density of 4.0 FSI;
• at-grade commercial space fronting along Yonge Street (185 square metres (“m²”); and
• private open space area at the rear of the Subject Lands (234 m²) providing passive recreational opportunities.

16Expert Lo highlighted the differences in the draft planning instruments to allow the 28-storey proposal, compared to the same instruments to allow the 25-storey proposal:

• The maximum overall height is increased from 25-storeys to 28-storeys;
• The maximum podium height is increased from 4-storeys to 5-storeys;
• The maximum overall density is increased from 3.5 FSI to 4.0 FSI;

17Expert Lo further confirmed the following differences featured within the planned 28-storey proposal, compared to the 25-storey proposal:

• The total planned number of units is increased from 247 to 343;
• The total planned number of affordable housing units (being studio and one-bedroom units) is decreased from 111 units (45% of the total) to 107 units (31% of the total); and
• The total planned number of family units (being three-bedroom units) is increased from 13 (5% of the total) to 36 (10% of the total).

18Expert Lo testified that, beyond the above-noted differences, the characteristics of the two proposals are materially the same. Furthermore, he emphasized that, in his opinion, the differences between the two proposals do not give rise to any distinct negative impacts on the surrounding area, or otherwise any planning concerns.

Summary of Evidence and Analysis

19As mentioned, there is no dispute that both proposals are policy-supported, and the proposed planning instruments to enable either of the proposed developments satisfy the requisite statutory tests. The Tribunal comes to this finding upon hearing the uncontroverted submissions of the parties and accepting the duly qualified expert opinion testimony of Expert Lo. There was no other evidence heard in the case.

20In summary, Expert Lo testified that the subject OPAs and ZBAs, to facilitate both proposals, have sufficient regard to the matters of Provincial Interest listed at s. 2 of the Planning Act, are consistent with the Provincial Policy Statement, 2020, and conform with and do not conflict with the Growth Plan in accordance with s. 3(5) of the Planning Act. Furthermore, he opined that both proposals conform with the York Region Official Plan (both 2010 and 2022 versions) in accordance with s.17(34.1) of the Planning Act, and (as it relates to the proposed ZBAs) both proposals conform with the Richmond Hill Official Plan (as respectively amended by the presently proposed OPAs) in accordance with s. 24(1) of the Planning Act.

21In support of his above conclusions, Expert Lo opined that both development plans represent good planning in the public interest by providing an appropriate form of development that is compatible with the existing surrounding land uses and will contribute to diversifying the range and mix of housing in the area. He further opined that both versions of the development consider the planning context of the surrounding lands, including compatibility, both keep within the policy regime applicable to the Subject Lands, and, importantly, both adequately employ the existing surrounding municipal infrastructure (notably, major transit infrastructure).

22Given this evidence and the Tribunal’s acceptance of it, the Tribunal finds that it is in a position to approve either version of the subject OPAs and ZBAs, reflecting either the 25- or 28-storey proposals. To determine which version it will approve, however, the Tribunal finds that the case turns on which development proposal better adheres to the statutory requirements set out in the Planning Act. In this sense, the matter becomes a question of which proposal is more consistent with the policies of the PPS and conforms more closely with the polices of the Growth Plan, York Region Official Plan and (in the case of the ZBA application) the Richmond Hill Official Plan (as respectively amended).

23On this point, in distinguishing the two proposals, Expert Lo opined that the increase in height and density of the 28-storey proposal does not represent an overdevelopment of the Subject Lands, but rather it better optimizes growth in an area that is envisioned for such growth. It is worth noting that, in this regard, he also opined that the 25-storey proposal does not represent an underdevelopment of the site, but the 28-storey proposal better optimizes existing infrastructure and investments made in transit infrastructure in the area. With its greater density and corresponding increase in the number of additional housing units, he further opined that the 28-storey proposal better contributes to the area’s supply and choice of housing.

24For these reasons, Expert Lo concluded that the taller/denser 28-storey proposal represents better planning and better serves the public interest.

25Regarding the parking concession in RHAO’s favour, the Tribunal heard from Expert Lo that the agreement between Sabella and RHAO involves the ‘sterilization’ of the western most end of the panhandle portion of the Subject Lands. Expert Lo explained that, through the subject ZBA, limitations would be placed on this portion of the site to disallow parking or any other potentially impactful uses. He further clarified that he was not of the opinion that this concession had any policy implications (it neither made the proposal more or less policy-supported). The City, meanwhile, took no position on this point. As a result, the Tribunal finds that there is nothing to prevent Sabella from providing this concession from a policy standpoint, and it can therefore form part of the 28-storey proposal (through the ZBA) without any effect on the present decision.

26Through cross-examination, the City attempted to challenge Expert Lo’s opinion that the 28-storey proposal represents better planning and better serves the public interest, by pointing out that the proposal for a 28-storey building is taller than current buildings in other areas of the City where taller buildings are permitted as-of-right. The inference, as presented by the City, is that the 28-storey proposal lacks conformity in the subject area, because it is taller than buildings in other areas where taller building are already planned for. The City further put questions to Expert Lo suggesting that a shorter, less dense building is more compatible with the surrounding low-rise neighbourhoods.

27In response, Expert Lo acknowledged that the 28-storey proposal is clearly taller and denser than the 25-storey proposal in a mathematical sense, but he remained steadfast that the differences between the two proposals are not perceptible from a compatibility standpoint. In his answers, he highlighted that compatibility is not a mathematical exercise. He further emphasized that compatibility is, instead, a question concerning negative impacts (or lack thereof) on surrounding lands and uses. On this point, he confirmed that there are no anticipated negative impacts resulting from the proposed increase in height and density of the 28-storey proposal. To be clear, he testified that there are equally no unacceptable negative impacts from either proposal, from a compatibility standpoint.

28In a further effort by the City to undermine Expert Lo’s opinion concerning the merits of the 28-storey proposal, the City questioned him on the decrease in affordable housing units within the taller proposal. While Expert Low acknowledged that there is a slight decrease in the number of planned affordable housing units (minus four units), the 28-storey proposal also increases, more substantially, the number of family units (plus 23 units), which are also in short supply. Put another way, he opined that the slight decrease in affordable housing units is more than offset by the increase in family units.

29Upon hearing Expert Lo’s unwavering testimony supporting Sabella’s and RHAO’s position that the planning instruments necessary to develop the 28-storey proposal represent better planning and better serve the public interest, the Tribunal comes to the same conclusion. The Tribunal finds that the key to this finding is Mr. Lo’s opinion that the 28-storey proposal better optimizes existing infrastructure and investments made in transit infrastructure in the area, notably within the PMTSA. Clearly, the Tribunal finds, the various provincial and municipal policies in support of focusing greater density in PMTSAs, support the 28-storey development.

ORDER

30THE TRIBUNAL ORDERS THAT the appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 31 below, and the Official Plan Amendment set out in Attachment 1 to this Interim Order and the Zoning By-law Amendment set out in Attachment 2 to this Interim Order are both hereby approved in principle.

31The 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 and content of the Official Plan Amendment is satisfactory to the City’s Commissioner of Planning and Building Services; and

b. The final form and content of the Zoning By-law Amendment is satisfactory to the City’s Commissioner of Planning and Building Services;

32The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-Law Amendment and the issuance of the Final Order.

33If the Parties do not submit the final drafts of the Official Plan Amendment and Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 31 above have been satisfied, and do not request the issuance of the Final Order by Friday, February 28, 2025, 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 Official Plan Amendment and Zoning By-law Amendment and issuance of the Final Order by the Tribunal.

34The 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 instruments, the satisfaction of the contingent prerequisites and the issuance of the Final Order.

35The Tribunal may be spoken to in the event that the Parties have any difficulty in implementing this Interim Order.

“K.R. Andrews”

K.R. ANDREWS 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

Attachment 2