Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

February 13, 2024

CASE NO(S).:

OLT-22-003831

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

Applicant and Appellant:

1107656 Ontario Inc. (Times Group)

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit the development of 6 residential buildings with a total of 2,603 condominium units, an elementary school and a 3-storey commercial building with a total floor area of 9,800 square metres (105,487 square feet)

Reference Number:

PLAN 20 128679

Property Address:

Blocks 46 and Part of Block 49, Plan 65M-3226, southwest corner of Highway 7 and South Park Road, City of Markham

Municipality/UT:

City of Markham/ Regional Municipality of York

OLT Case No.:

OLT-22-003831

OLT Lead Case No.:

OLT-22-003831

OLT Case Name:

1107656 Ontario Inc. (Times Group) v. Markham (City)

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

Applicant/Appellant:

1107656 Ontario Inc. (Times Group)

Subject:

Application to amend the Zoning By-law – Neglect to make a decision

Description:

Reference Number:

PLAN 20 128679

Property Address:

Blocks 46 and Part of Block 49, Plan 65M-3226, southwest corner of Highway 7 and South Park Road, City of Markham

Heard:

November 30, 2023 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

1107656 Ontario Inc.

Sarah Kagan Ira Kagan

City of Markham

Maggie Cheung-Madar

York Region District School Board

Buck Sully

Yi Wang

Self-represented*

DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal concerns an appeal filed by 1107656 Ontario Inc. (“Applicant”) against the City of Markham (“City”) for failing to make a decision for an Official Plan Amendment (“OPA”) pursuant to s. 22 (7) and Zoning By-law Amendment (“ZBA”) pursuant to s. 34 (11) of the Planning Act (“Act”). The Property is located at the southwest corners of Highway 7 East and South Park Road and Highway 7 East and Saddlecreek Drive, legally known as Block 46 and Parts of Blocks 45 and 49 of Plan 65M-3226. The Subject Lands measure approximately 3.2 hectares (“ha”).

2The effect of the OPA and ZBA is to permit the development of the Subject Lands with a total of six residential buildings, ranging in height from 34-50 storeys, consisting of 2,603 condominium units. Block 46 of Plan 65M-3226 on the south side of Highway 7 includes three residential towers and a one storey podium. Part of Block 49 of Plan 65M-3226 is located on the north side of Highway 407 and similarly includes three residential towers and a one storey podium. The proposal also consists of an elementary school site, a three-story commercial building with a total floor area of 9,800 square metres (“m²”), a two-storey day care building and two public parks.

3In advance of the hearing, the Tribunal was advised that the Applicant and the City of Markham had settled all of their issues. The York Region District School Board (“YRDSB”) only had an interest in monitoring the proceedings to ensure that the proposed school site’s configuration and location is maintained within the proposed development.

4The remaining party, Yi Wang’s, issues were captured in the Procedural Order (“PO”). Mr. Wang’s issues related to planning matters are as follows:

Does the proposed OPA and ZBA have regard for the relevant matters of provincial interests set out in Section 2 (h,n,o)?
How will the proposed development mitigate the blocked sunlight to residential properties and the alleged negative impact to resident’s mental health and energy conservation. Is the proposed development required to do so?
Has the proposed development considered the loss of privacy for residents as people living in the high-rise could potentially look directly into their living spaces, bedrooms and backyards. This intrusion of privacy could be a major quality-of-life issue for residents who feel that their personal space is being compromised by the development.

CONTEXT

5All of the following statements are drawn from the sworn affidavits, Document Brief of the Parties and the submissions and evidence provided at the hearing.

6The following materials were identified as Exhibits and marked as follows:

Exhibit 1 - Document Book
Exhibit 2 - Affidavit of Lincoln Lo
Exhibit 3 - Official Plan Amendment
Exhibit 4 - Zoning By-law Amendment
Exhibit 5 - Shadow Simulation Report by Derek Tam
Exhibit 6 - NextEng Transportation Study Update
Exhibit 7 – Yi Wang Correspondence
Exhibit 8 – Kelvin Deng Participant Statement
Exhibit 9 – LCA Participant Statement
Exhibit 10 – Visual Evidence of Times Group

7The Tribunal only heard from one witness, Lincoln Lo. Mr. Lo was qualified as an expert in land-use planning by the Tribunal.

ISSUES BEFORE THE TRIBUNAL

8There are fundamentally three planning matters to be addressed in this hearing within the Tribunal’s jurisdiction:

i. Shadowing

ii. Loss of privacy

iii. That the proposed development meets all applicable provincial, regional and local planning tests, represents good planning and is in the public interest (“Settlement Proposal”)

ANALYSIS

9For the reasons that follow, the Tribunal orders that the appeals are allowed, in part.

Shadowing

10Through his affidavit, Mr. Lo provided an overview of the Sun/Shadow Impact Analysis Study (“Study”) prepared by Icke Brochu Architects. He advised that the City of Markham has a Sun and Shadow Terms of Reference (“TOR”), and the Study conforms with the TOR requirements.

11Mr. Lo advised that the proposed development incorporates site and building design elements to mitigate shadow impacts and to preserve sky-view.

12Mr. Lo advised that the proposed development incorporates tower setbacks from the podium to create a street wall along the public road frontages. The towers are spaced a minimum of 30 metres (“m”) to 36 m apart to prevent overcrowding and to preserve views and sunlight. The floorplates are also a maximum of 800 m² to minimize shadow impacts on the streets, surrounding community, open space areas and school block.

13The tall buildings have been designed to be slender and spaced accordingly to ensure any shadow impacts move across the adjacent neighbourhood quickly.

14Mr. Lo advised that the Study demonstrated that the shadows cast from the proposed towers moves across the neighbourhood quickly with no shadows remaining in place longer than a three-hour period.

15Mr. Lo opined that Mr. Yang’s property is located north of Highway 7, in the City of Richmond Hill, approximately 260 m from the nearest proposed residential tower.

16Mr. Lo stated that it is not reasonable that a project such as what is proposed by the Applicant on Highway 7, would be denied or even scaled back for reasons such as snow melting on the driveway of a detached home. He opined that planning is a matter of balancing objectives and making decisions that are in the broader public interest and that it would not be in the public interest to deny the proposed development based on Mr. Wang’s concerns.

17Mr. Wang advised that there is an existing shadowing effect on Laser Court with the two built towers that exist and that they block two to three hours of sunlight in the morning, particularly in winter. He stated that if the proposed tower heights are not reduced, then the cumulative shadowing effect could extend to four to six hours. Mr. Wang in his oral submissions stated that he could support 15 storeys.

18Mr. Wang presented a sun/shadow study authored by Derek Tam (“Tam Study”). It should be noted that based on a submission of Mr. Wang, Mr. Tam is either a resident or owner at Laser Court.

19Although Mr. Tam was not provided as a witness before the Tribunal, Mr. Wang used the assumptions made by the Tam Study to critique the Study provided by the Applicant.

20The Tam Study provided the following information to Mr. Wang and was forwarded to the Parties and the Tribunal. The Tam Study provides the following:

Dear Mr. Wang, I am addressing your request for a shadow simulation report regarding the impact of the two existing and six proposed towers located at South Park Road on Ward 6 of Richmond Hill, dated November 22 of this year.

Following extensive research, I selected Shadowmap as the simulation tool due to its status as the world's first maps app for interactive sunlight and shadow visualization. Leveraging global 3D terrain and building data, Shadowmap facilitates precise simulation of solar shadows for any location and time on Earth.

The simulation setup involves employing the floorplan from the Developer's Plan document provided by Times Group Incorporation for the six proposed towers (see attachment A2). These towers are positioned on the Shadowmap interface based on their approximate locations in the floorplan. Heights are estimated using the number of floors specified in the plan, with an assumption of 3.3 meters per storey. The widths and lengths of each proposed tower mimic those of the existing ones as closely as possible.

For time selection, a typical fall date, November 22, was chosen, representing a non-shortest date of fall. The simulation spans a typical fall daylight period from 8 AM to 4:30 PM.

To address file size limitations, a 15-minute sample interval was used, resulting in 35 data points for the simulation period. Actual shadow durations were manually inspected for accuracy.

It's important to note that while the exact location, dimensions, and orientation of each proposed tower may not precisely align with the floorplan, the confidence level in this simulation remains reasonably high for estimation purposes (see attachment A1 for verification of simulation setup).

The simulation objectives are threefold:

Assess the shadow effect on Mr. Wang's house.
Examine the shadow effect on 4 other houses near the location.
Evaluate the shadow effect on 2 business units near the location.

Note that the properties under evaluation are located at Ward 6 of Richmond Hill, directly north of South Park Road, Markham.

The shadow effect in this report is measured by these factors, i.e., total shadow duration and total consecutive sunlight duration. The former allows us to understand the amount of sunlight blocked during the 8.5 daylight hours and the latter, the duration of uninterrupted time suitable for work or recreation, either outdoors or near windows.

Results of the shadow simulations are as follows:

It's worth noting that the total shadow hours can only be manually observed while dragging the time bar of the tool from 8 AM to 4:30 PM. The calculation of a shadow begins when it initially makes contact with the property and concludes when it completely departs (Note: Use data points provided in attachment A1 for verifying total shadow hours and consecutive sunlight hours)

In my assessment, measuring the shadow effect on an individual house may lack meaning compared to evaluating its impact on the overall neighborhood. Treating residents as stationary objects fails to account for daily activities that require sunlight, such as lawn care, plant growth, vitamin D production during walks, and enjoyment of sunlight while having lunch and shopping at Golden Plaza.

Overall, as per the above table, this neighborhood experiences sunlight blockage from 8 am to 3:44 pm in fall, approximately 8 hours. Proximity to the towers correlates with increased total shadow duration, reaching more than 3 hours for four houses (H2, H3, H4, H5) and about 4-7 hours for two business units (B1, B2). According to a Sun Shadow Study published by the City Council of Richmond Hill, the minimum requirement for consecutive sunlight on a fall day is 5 hours (see attachment A3). Three houses (H2, H3, H4) and one business unit (B1) have violated this requirement. These numerous cases of prolonged sunlight obstruction and the breach of consecutive sunlight standards indicate a significant environmental threat to this community. The fact that your house experiences a cumulative shadow for about 2 hours and consecutive sunlight for 6.5 hours does not justify providing less consideration to other residences or businesses closer to the location; all residents should be treated equally within the community.

Sincerely,

Report compiled by Derek Tam

21By the admission of Mr. Wang, the Tam Study is “not professional but should be similar” to the study submitted by the Applicant.

22Mr. Wang, by not providing an expert witness on the Sun/Shadow issue, compromised his position. Moreover, based on Mr. Wang’s submitted documents, Mr. Tam either owns or resides at a property on Laser Court. This issue introduces bias which, along with the narrow scope and no knowledge of the expertise of the author on the subject of the Tam Study, significantly impacts the Tribunal to accept the information over the findings provided by the Applicant.

23Based on the foregoing, the Tribunal finds that there is no probative value in the Tam Study and finds no basis to reject the findings of the Study provided by the Applicant at the application stage and accepted by the City.

Privacy

24Mr. Lo advised that the Subject Lands are located within an active urban environment and are surrounded by a variety of medium and high-density uses.

25Mr. Lo stated that the Subject Lands are located along a rapid transit corridor, adjacent to a higher-order transit stop and within a Major Transit Station Area (“MTSA”).

26Mr. Lo advised that intensification and tall buildings are anticipated and appropriate in this area. He opined that the ability to see a high-rise building at this location from a surrounding low-density community should be expected and is not an indication that the privacy of the low-rise community is being infringed upon.

27For context, Mr. Lo advised that the nearest low-density community (not within the Leitchcroft community that already incorporates a mix of heights and densities) is to the north, within the City of Richmond Hill and 120 m or more away from the proposed development.

28Mr. Lo opined that people living in the proposed development will, be able to gaze upon neighbourhoods in Richmond Hill, but they will not be able to invade people’s privacy from such a distance, just as people standing in the rear yards of the detached homes could not peer into the apartment balconies and invade the privacy of the people living in the proposed development.

29Mr. Lo stated that the proposed development locates high-rise buildings in an area where they are planned to be located. The Subject Lands are within an active urban context adjacent to higher-order transit where tall buildings already exist and where more are anticipated.

30Mr. Lo advised that the proposed development provides an appropriate amount of spatial separation from the low-rise community to the north and will not cause any unreasonable privacy or overlook issues beyond what can be expected in an urban environment that is to be the focus of transit-supportive growth.

31Mr. Wang presented only anecdotal and conjectural arguments to refute the testimony of Mr. Lo regarding the issue of privacy.

32The Tribunal is persuaded that the issue of privacy has been adequately addressed based on the uncontroverted evidence and opinion of Mr. Lo.

Proposed Settlement

33Mr. Wang’s concern that the proposed OPA and ZBA had regard for the relevant matters of provincial interests set out in Section 2 (h,n,o) will be addressed in this section.

34The Subject Lands include lands located at the southwest corners of Highway 7 East and South Park Road and Highway 7 East and Saddlecreek Drive, legally known as Block 46 and Parts of Blocks 45 and 49 of Plan 65M-3226. The Subject Lands measure approximately 3.2 ha.

35The Subject Lands form part of the larger Leitchcroft community, generally located on the south side of Highway 7, between Bayview Avenue and Pond Drive, that the Applicant has developed over several years. The lands to the east of the Subject Lands have largely been developed, constructed and occupied, consisting of a mixed-use, mixed-density community. The Subject Lands represent the only vacant properties remaining in the community and their development would represent its full build-out.

36The Subject Lands have substantial frontage onto Highway 7, a regional corridor with existing rapid bus transit service on a dedicated right-of-way, with a VIVA bus stop (Chalmers VIVA Purple Bus Rapid Transit [“BRT”] Station) immediately adjacent along Highway 7.

37The immediate surrounding land uses include Highway 7, a commercial plaza (Golden Plaza), office buildings and low-rise residential uses in the City of Richmond Hill to the north. Land uses to the south include Ada Mackenzie Park and Highway 407. Land uses to the west include German Mills Creek and Highway 407. Land uses to the east include medium and high-density residential, neighbourhood parks and a commercial plaza (The Galleria Shoppes).

38The Subject Lands are well served by existing and planned public transit and are located in close proximity to existing cycling facilities along Highway 7 which contains dedicated bicycle lanes.

39Mr. Lo provided the Tribunal with a fulsome affidavit which describes the Subject Lands and surrounding lands, sets out the planning policy and regulatory context including matters of provincial interest, describes the settlement with the City, describes the proposed OPA and ZBA, and outlines his opinion and recommendations to the Tribunal.

40The proposed OPA provides for a site-specific exception to the 2014 City of Markham Official Plan, as amended (“OP”) to provide for the residential uses and the proposed building heights of up to 50 storeys and an overall 5.0 Floor Space Index (“FSI”). The OP permits a maximum building height of 15 storeys and a 2.5 FSI within the ‘Mixed Use High Rise’ designation. An Area and Site-Specific Policy will also be revised with respect to securing a public elementary school site in the Leitchcroft community.

41The proposed ZBA seeks to amend the Subject Property as follows:

Existing Zoning

Amendment

Business Park34 [BP34 (H)] Zone

Community Amenity Two X1 Hold [CA2XX (H)] Zone

Business Park3649 [BP3649 (H)] Zone

Community Amenity Two X2 Hold [CA2XX (H)] Zone

Business Corridor37 [BC37 (H)] Zone

Business Park3649 Hold [BP3649 (H)] Zone

Business Corridor3749 [BC3749 (H)] Zone

Open Space One (OS1) Zone

Residential Two – Lane Access583 [R2-LA583] Zone

Open Space Two (OS2) Zone

42The ZBA is required to permit a high-density mixed-use development on the lands comprised of six apartment towers with heights ranging between 34 and 50 storeys joined by podiums. The development also includes two parks and a school block. This zoning by-law amendment also includes site-specific provisions to permit the development of a supermarket within the Leitchcroft community.

43It is Mr. Lo’s uncontroverted evidence and opinion that the Settlement Proposal to be implemented through the proposed OPA and ZBA is consistent with the Provincial Policy Statement (“PPS”), conforms to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended, 2020 (“Growth Plan”), is in conformity with the to the 2010 York Region Official Plan (“2010 YROP”) , the 2022 YROP and OP, represents good planning and is in the public interest.

44It is Mr. Lo’s opinion that the proposed development does not create any adverse impacts, can be adequately serviced and represents appropriate and compatible development for the area.

45The Tribunal accepts Mr. Lo’s evidence and opinion that the proposal provides for the development of a complete community with a diverse mix of compatible land uses. The proposed amendments, which will implement the development, represent good planning and are in the public interest.

46 Section 2 of the Act outlines matters of Provincial interest including the appropriate location of growth and development, which are further reflected through the policy statements issued under Section 3 of the Act. The following matters of provincial interest are relevant to the Subject Lands:

(h) the orderly development of safe and healthy communities;

(n) the resolution of planning conflicts involving public and private interests;

(o) the protection of public health and safety;

(p) the appropriate location of growth and development;

(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;

(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

47The proposed development has regard for subsection (h) as it completes the last remaining undeveloped block in the Leitchcroft community, which has been comprehensively planned. The proposed development provides for apartment units in an area dominated by ground-related housing units, is within walking distance to a variety of retail and employment opportunities and provides a residential user base for higher-order transit and active transportation infrastructure.

48The proposed development has regard for subsection (n) as it satisfies the City and Regional Municipality of York’s (“Region”) public planning interests. The proposed development has been through a planning process led by the City, where comments have been received and addressed. The development applications associated with the proposed development involved consultation and coordination with public bodies through the circulation of the application and related materials, including the Region, Toronto and Region Conservation Authority (“TRCA”) and various agencies to ensure that planning was coordinated. The proposed OPA and ZBA, in addition to the Site Plan approval process, will ensure that private property interests are also appropriately addressed.

49The proposed development has regard for subsection (o), as the Subject Lands are located within an active built-up urban environment and as such, provides a development and land use pattern that is consistent with the existing and planned surrounding context and will not cause environmental or public health and safety concerns.

50The proposed development has regard for subsection (p), as the Subject Lands are located within a built-up area and identified Key Development Area, which is to be the focus of significant growth and development. The Subject Lands are also along a regional corridor (Highway 7) where all levels of government have invested greatly in upgrading transit to a bus rapid transit system. The proposed development will optimize this investment and is well serviced by surrounding public facilities in the already-established community of Leitchcroft. All considered, the Subject Lands are an appropriate location for growth and development.

51The proposed development has regard for subsection (q), as the proposed development provides a high-density residential user base for active transportation and higher-order transit infrastructure. The increased population provides both residential opportunities within walking distance of existing public service facilities and also provides a ridership base to support the potential upgrading of transit infrastructure along Highway 7, from the current BRT to a Light Rail Transit.

52The proposed development has regard for subsection (r), as the proposal has been professionally designed and provides a development that has been designed to achieve a high-quality built form.

53The proposed development is consistent with the PPS as it will be serviced through minimal extensions of existing servicing infrastructure and will be supported by nearby public service facilities. The proposed development will develop the last remaining vacant parcels in the community, and it will provide a mix of land uses, while increasing the range of housing types. The proposed development will build upon a development pattern that already establishes these principles and further add to the creation of a complete community. The proposed development will provide a combination of a mix of land uses where daily amenities are available within walking and/or biking distance and provide transit-supportive density along a higher-order transit corridor. The proposed development will provide a contemporary built form that follows the City’s urban design guidelines.

54The proposed development is consistent with the PPS as it provides a high-density, mixed-use development that will ensure efficient use of the Subject Lands, support existing and planned transit infrastructure and use existing public infrastructure.

55The proposed development provides a mix of uses at an appropriate density right at the Highway 7/Chalmers/South Park Road intersection. The Subject Lands are located within the built-up area and the proposed development will efficiently use existing infrastructure, community facilities and transportation services. The proposed development will locate residents within walking distance to existing transit stops and provide immediate access to active transportation routes along Highway 7. Based on the foregoing, the proposed development conforms with the policies of the Growth Plan.

56The proposed development complies with the 2010 YROP by locating compact, dense, mixed-use development in the Urban Area along a Regional Corridor where such growth should be focused. It will provide high-density uses adjacent to a rapid transit corridor which will assist the Region to achieve its intensification and transit objectives. The proposed apartment units will also diversify the housing stock in the surrounding community, providing opportunity for a greater range of household types and affordability.

57On June 30, 2022, the Region adopted 2022 YROP which is intended to ensure that its policy directives align with the updated PPS and Growth Plan. The 2022 YROP was approved with modifications by the Minister of Municipal Affairs and Housing (MMAH) on November 4, 2022.

58The proposed development has appropriate regard for the 2022 YROP by proposing residential development where such growth should be focused. It will provide new high-density apartment units, which will compliment the surrounding housing stock and will assist the Region in achieving its intensification targets. Based on the foregoing, the proposed development conforms to the 2022 YROP.

59The City of Markham adopted the City’s new OP in December 2013, which was subsequently approved by York Region in June 2014. The OP was appealed to the OLT; however, it has since been approved except for site-specific appeals. Mr. Lo relied on the applicable and in-force policies from the April 2018 Consolidation of the OP.

60The proposed development will provide high-density apartment units with a range of bedroom types in an area that predominantly consists of ground-related townhouses. The proposed high-density units will diversify the City’s housing stock to better meet the needs of current and future residents.

61The recently approved lands immediately east of the Subject Lands introduced the podium and tower built form to the community which the proposed development will continue. The proposed development does not raise any issues of compatibility and does not introduce any sensitive land uses to the area.

62The proposed development is supported by existing local and regional rapid transit infrastructure operated by York Region Transit (“YRT”) and GO Transit. The Subject Lands are well served by public transit and the proposed development will locate high-density residential uses within walking distance to several transit stations and this location of the proposed development is likely to increase transit ridership within the City.

63The proposed development includes numerous public amenities including a two-storey daycare and a four acre ("ac”) block reserved for a future elementary school. In addition to the public amenities contemplated via the proposed development, the Subject Lands are located in the established Leitchcroft community which includes numerous public amenities including two public parks (a 2.83 ac park immediately to the west and a 1.88 ac park immediately southeast of the Subject Lands).

64The proposed apartment units, by virtue of their smaller size, are intrinsically more affordable for both purchase or rent than the majority of the low-density housing stock that exist in the City. The proposed high-density dwellings will be located in close proximity to higher-order transit, which will increase accessibility and reduce living costs for a variety of households. Additionally, the proposed high-density apartment units are within large buildings that can leverage economies of scale in multi-unit construction which can spread the construction cost of the building over a greater number of individual dwelling units within the building.

65The Applicant is continuing to assess the proposed development to see if it is a viable option for seniors-oriented housing. This will further be analyzed at the site plan approval stage to see what (if any) seniors-oriented amenities and design options can be implemented in the development.

66Mr. Lo addressed the concerns of the Participants in the Appeals, which were related to sky-view, sun/shadow impacts, intensification, transportation safety concerns, height and noise studies. Mr. Lo opined that the Settlement Proposal provides the appropriate regard to the issues raised by the Participants.

67Having heard the uncontested sworn and oral evidence of Mr. Lo and reviewed the Participants statements, the Tribunal is satisfied that the Settlement Proposal addresses the concerns of the neighbours and aligns with provincial, regional and local planning policy regimes that guide intensification and orderly development of the Subject Lands.

68The Tribunal has considered the matters of Provincial interest as set out in s. 2 of the Act and is satisfied that the approval of the OPA and the ZBA will have regard for such matters, including being an appropriate location for growth, promoting a design that provides for a complete community supporting public transit and that the Settlement Plans represent a well-designed built form.

69The Tribunal finds that the Settlement Proposal is consistent with the PPS as it proposes an efficient development and land use pattern that provides an appropriate range and mix of housing types that will meet the needs of current and future residents. The Settlement Proposal represents an integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve a cost-effective development pattern that optimizes transit investment.

70In consideration of the Growth Plan, the Tribunal finds that the Settlement Proposal supports the achievement of complete communities that are designed to support healthy and active living by providing compact built form and a mix and range of housing.

71The Tribunal finds that the Settlement Proposal conforms to the YROP as it proposes development that will contribute to the creation of complete communities, represents intensification in a compact development pattern, will be transit-supportive and will minimize land consumption and service costs to meet density targets. YROP requires that communities be designed to prioritize active transportation, transit-supportive development and intensification in appropriate locations, and the Tribunal is satisfied that the Settlement Proposal achieves these objectives.

72The proposed development complies with the City’s urban structure and growth management strategies by locating a high-density, mixed-use development in a Key Development Area where such uses are to be focused. The proposed development will increase the housing choice and employment opportunities in the area, at densities that support the investment made in higher-order transit on Highway 7.

73The Tribunal is satisfied that the settlement has appropriate regard for matters of provincial interest, is consistent with the PPS, conforms to the Growth Plan, is in conformity with the 2010 YROP and the 2022 YROP and City OP, represents good planning and is in the public interest.

ORDER

74THE TRIBUNAL ORDERS that the appeal pursuant to s.22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, is allowed, in part, and the Official Plan Amendment to the City of Markham Official Plan, as amended, attached hereto as “Attachment 1” is approved in principle.

75THE TRIBUNAL ORDERS that the appeal pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, is allowed, in part, and the Zoning By-law Amendment to the City of Markham Zoning By-law 2004-196, as amended, attached hereto as “Attachment 2” is approved in principle.

76THE TRIBUNAL ORDERS the final Order approving the Planning Instruments is withheld pending:

a. Receipt by the Tribunal of the final form of the Planning Instruments, confirmed to be satisfactory by the City and the Appellant.

77The Member will remain seized and may be spoken to through the Tribunal’s Case Coordinator if there are any issues with respect to the implementation of this Order.

“W. Daniel Best”

W. daniel Best

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

CITY OF MARKHAM

OFFICIAL PLAN AMENDMENT NO. XXX

To amend the City of Markham Official Plan, 2014, as amended.

(Times Group Corporation)

November 2023

CITY OF MARKHAM

OFFICIAL PLAN AMENDMENT NO. XXX

To amend the City of Markham Official Plan 2014, as amended.

This Official Plan Amendment was adopted by the Corporation of the City of Markham, By-law No. 2023-___ in accordance with the Planning Act, R.S.O., 1990 c.P.13, as amended, on November __, 2023

Mayor

City Clerk

By-law 2023-___

Being a by-law to adopt Amendment No. XXX

to the City of Markham Official Plan 2014, as amended.

THAT COUNCIL OF THE CORPORATION OF THE CITY OF MARKHAM, IN ACCORDANCE WITH THE PROVISIONS OF THE PLANNING ACT, R.S.O., 1990 HEREBY ENACTS AS FOLLOWS

THAT Amendment No. XXX to the City of Markham Official Plan 2014, as amended, attached hereto, is hereby adopted.
THAT this by-law shall come into force and take effect on the date of the final passing thereof.

Read a first, second and third time and passed on November ___, 2023.

City Clerk

Mayor

CONTENTS

PART I – INTRODUCTION............................................................................................. 5

1.0 GENERAL.............................................................................................................. 6

2.0 LOCATION............................................................................................................ 6

3.0 PURPOSE............................................................................................................. 6

4.0 BASIS..................................................................................................................... 6

PART II – THE OFFICIAL PLAN AMENDMENT ...................................................... 7

1.0 THE OFFICIAL PLAN AMENDMENT............................................................... 8

2.0 IMPLEMENTATION AND INTERPRETATION................................................ 8

3.0 SCHEDULES........................................................................................................ 9

PART I – INTRODUCTION

(This is not an operative part of Official Plan Amendment No. XXX)

PART I – INTRODUCTION

1.0 GENERAL

1.1 PART I – INTRODUCTION, is included for information purposes and is not an operative part of the Official Plan Amendment.

1.2 PART II – THE OFFICIAL PLAN AMENDMENT, including Schedules “A”, “B” and “C” attached thereto, constitutes Official Plan Amendment No. XXX. Part II is an operative part of this Official Plan Amendment.

2.0 LOCATION

The lands subject to this amendment, as identified on the Figures in the amendment are located south of Highway 7, between South Park Road and Bayview Avenue and are part of blocks on a registered plan of subdivision (Blocks 46 and Part of 49, Plan 65M-3226). The lands are approximately 6.6 hectares (16.3 acres) and are part of the remaining portion of the Leitchcroft community yet to be developed.

3.0 PURPOSE

The purpose of this Amendment is to provide for maximum building heights of 34 to 50 storeys, with a maximum overall density of up to 9.5 Floor Space Index (FSI) within the ‘Mixed Use High Rise’ designation on the subject lands as an Area and Site Specific Policy. An Area and Site Specific Policy will also be revised with respect to securing a public elementary school site in the Leitchcroft community.

4.0 BASIS OF THIS OFFICIAL PLAN AMENDMENT

Council adopted a modification to the 2014 Official Plan, as amended in June 2017 which was subsequently approved by the OMB in November 2017 and is now in effect on the subject lands. The modification implemented an employment lands conversion subject to satisfying site-specific policies, which deferred the employment land use designation.

An amendment to the 2014 Official Plan, as amended is now required to provide for the residential uses and the proposed building heights of up to 50 storeys and an overall 5.0 Floor Space Index (FSI), as the 2014 Official Plan currently permits a maximum building height of 15 storeys and a 2.5 Floor Space Index (FSI) within the ‘Mixed Use High Rise’ designation. An Area and Site Specific Policy will also be revised with respect to securing a public elementary school site in the Leitchcroft community following discussions with the school board.

An associated Zoning By-law amendment is also required to implement the new Official Plan land use designation and development standards, including the height permission and Floor Space Index (FSI).

PART II – THE OFFICIAL PLAN AMENDMENT

(This is an operative part of

Official Plan Amendment No. XXX)

PART II – THE OFFICIAL PLAN AMENDMENT

1.0 THE OFFICIAL PLAN AMENDMENT

1.1 Section 9.6.1 of the Official Plan 2014, as amended is hereby amended to add references to Section 9.6.X on Figure 9.6.1 as follows:

Figure 9.6.1

1.2 Section 9.6.4 of the Official Plan 2014, as amended is hereby amended by deleting and replacing it with the following:

“9.6.4

The following provisions shall apply to the lands designated ‘Business Park Office Priority Employment’ shown on Figure 9.6.4:

a) the following uses shall also be permitted:

i. entertainment use such as cinemas and theatres, motion simulation rides, laser games and similar types of uses;

ii. recreational use such as bowling alleys, curling rinks, billiard halls or similar indoor leisure activities;

iii. retail, service, banquet hall and night club;

iv. grocery store and supermarket;

v. private school;

vi. commercial school;

b) future development of the lands shall be subject to a transportation impact assessment confirming the associated traffic volumes and movements can be accommodated to the satisfaction of Markham; and,

c) in considering an application for development approval on the lands, a comprehensive block plan shall be prepared in accordance with Section 10.1.4 of this Plan.

Figure 9.6.4”

1.3 Section 9.6.5 of the Official Plan 2014, as amended is hereby amended by deleting and replacing it with the following:

“Section 9.6.5 Southwest Corner of Highway 7 and South Park Road

The following provisions shall apply to the lands outlined in Figure 9.6.5:

a) future development of the lands shall be subject to a transportation impact assessment confirming the associated traffic volumes and movements can be accommodated to the satisfaction of Markham; and,

b) in considering an application for development approval on the lands, a comprehensive block plan shall be prepared in accordance with Section 10.1.4 of this Plan.

c) The following height and density provisions shall apply to the Mixed Use High Rise’ lands located on the southwest corner of Highway 7 and South Park Road as shown in hatching on Figure 9.6.5:

i. the maximum building height shall be in accordance with the maximum number of storeys shown in Figure 9.6.5

ii. the total floor space index of all buildings on the lands shall not exceed 9.5.

Figure 9.6.5.”

1.4 Section 9.6.9 of the Official Plan 2014, as amended is hereby amended by deleting and replacing it with the following:

“9.6.9 Public School Site

A public school site for the Leitchcroft district as generally identified in Figure 9.6.9 and on Map 14 – Public School, Place of Worship and Park Sites shall be secured through the development approval process, to the satisfaction of the York Region District School Board and the City of Markham.

Figure 9.6.9”

1.5 Map 1 – Markham Structure of the Official Plan 2014 is hereby amended by redesignating certain lands from the “Employment Area” designation and replacing it with the “Neighbourhood Area” designation, as shown in Schedule “A” attached hereto.

1.6 Map 3 – Land Use of the Official Plan 2014 is hereby amended by redesignating certain lands from the “Business Park Office Priority Employment” designation and replacing it with the “Mixed Use High Rise” designation, as shown in Schedule “B” attached hereto.

1.7 Map 14 – Public School, Place of Worship and Park Sites of the Official Plan 2014 is hereby amended to identify a public school site as shown on Schedule “C” attached hereto.

2.0 INTERPRETATION

The provisions of the Official Plan 2014, as amended, regarding the implementation and interpretation of the Plan, shall apply in regard to this Amendment, except as specifically provided for in this Amendment.

This Amendment shall be implemented through an amendment to Zoning By-law 177-96, as amended and Site Plan Control in conformity with the provisions of this Amendment.

Prior to Council’s decision becoming final, this Amendment may be modified to incorporate technical amendments to the text and schedule(s). Technical amendments are those minor changes that do not affect the policy or intent of the Amendment. For such technical amendments, the notice provisions of Section 10.7.5 of the City of Markham Official Plan 2014, as amended, shall not apply.

(November 2023)

SCHEDULE “A”

SCHEDULE “B”

SCHEDULE “C”

Attachment 2

EXPLANATORY NOTE

BY-LAW NO. 2023-XX A By-law to amend By-law 177-96, as amended.

Times Group Corporation

Block 46 and Part of Blocks 45 and 49, Plan 65M-3226

South of Highway 7, between Bayview Avenue and Saddlecreek Drive

PLAN 20 128679

LANDS AFFECTED This by-law applies to properties located on the south side of Highway 7, between Bayview Avenue and Saddle Creek Drive measuring approximately 7.3 hectares (18.0 acres).

EXISTING ZONING The subject lands are zoned Business Park34 [BP34 (H)] Zone, Business Park3649 [BP3649 (H)] Zone, Business Corridor37 [BC37 (H)] Zone, Business Corridor3749 [BC3749 (H)] Zone, and Residential Two – Lane Access583 [R2-LA583] Zone under Bylaw 177-96, as amended.

PURPOSE AND EFFECT The purpose and effect of this By-law is to rezone the subject lands under By-law 177-96, as amended as follows:

from:

Business Park34 [BP34 (H)] Zone

Business Park3649 [BP3649 (H)] Zone

Business Corridor37 [BC37 (H)] Zone

Business Corridor3749 [BC3749 (H)] Zone

Residential Two – Lane Access583 [R2-LA583] Zone

to:

Community Amenity Two X1 Hold [CA2XX (H)] Zone

Community Amenity Two X2 Hold [CA2XX (H)] Zone

Business Park3649 Hold [BP3649 (H)] Zone

Open Space One (OS1) Zone

Open Space Two (OS2) Zone

in order to permit a high density mixed-use development on the lands comprised of six apartment towers with heights ranging between 34 and 50 storeys joined by podiums. The development also includes two parks and a school block. This zoning bylaw amendment also includes site-specific provisions to permit the development of a supermarket within the Leitchcroft community.

Note Regarding Further Planning Applications on this Property

The Planning Act provides that no person shall apply for a minor variance from the provisions of this by-law before the second anniversary of the day on which the by-law was amended, unless the Council has declared by resolution that such an application is permitted.

BY-LAW 2023-XX

A by-law to amend 177-96, as amended.

The Council of the Corporation of the city of Markham hereby enacts as follows:

THAT Zoning By-law 177-96, as amended, is hereby further amended as it applies to the lands outlined on Schedule ‘A’, as follows:

1.1 By rezoning the lands outlined on Schedule ‘A’ attached hereto

from:

Business Park34 [BP34 (H)] Zone

Business Park3649 [BP3649 (H)] Zone

Business Corridor37 [BC37 (H)] Zone

Business Corridor3749 [BC3749 (H)] Zone

Residential Two – Lane Access583 [R2-LA583] Zone

to:

Community Amenity Two X1 Hold [CA2XX (H)] Zone

Community Amenity Two X2 Hold [CA2XX (H)] Zone

Business ParkX [BPX (H)] Zone

Open Space One (OS1) Zone

Open Space Two (OS2) Zone

1.2 By adding the following subsections to Section 7 – EXCEPTIONS:

Exception

7.X1

Times Group Corporation

South of Highway 7, between Bayview Avenue and South Park Road

Parent Zone

CA2

File

ZA XX

Amending By-law

2023-XX

Notwithstanding any other provisions of this By-law, the following provisions shall apply to the land denoted by the symbol *X1 on the schedules to this By- law. All other provisions, unless specifically modified/amended by this section, continue to apply to the lands subject to this section.

7.XX.1 Special Zone Standards

The CA2 Zone standards in Table B7 do not apply. The following special zone standards shall apply:

The lot line abutting Highway 7 shall be deemed to be the front lot line

Maximum building height – 143 metres

Maximum number of dwelling units – 1,145

Minimum front yard – 1.0 metres

Minimum interior side yard – 2.0 metres

Minimum exterior side yard – 1.0 metres

Minimum rear yard – 2.0 metres

Minimum setback from a daylighting triangle – 0.0m

Minimum landscaped open space – 5%

Maximum Floor Space Index – 10.7

Encroachments into all yards by architectural features, terraces, roof overhangs, eaves, cornices, sills, rainwater leaders, canopies, porches, architectural wing walls, ramps, retaining walls, shafts, balconies, underground cellars, underground parking garage, underground storage lockers, underground bicycle racks, underground functional mechanical equipment, stairs and landings shall be set back 0.0 metres from any lot line.

In the calculation of height, mechanical features, such as but not limited to structures containing the equipment necessary to control an elevator, and any ornamental roof construction features including towers, steeples, parapets or cupolas are permitted to project a maximum of 8.0 metres above the highest point of the roof surface, regardless of the height of the building.

The minimum permitted podium height shall be 2 storeys (10.5 metres); and the maximum permitted podium height shall be 4 storeys.

The minimum first storey height for any non-residential uses shall be 7.5 metres and the portion of the first storey above 4.2 metres shall not be deemed an additional storey.

Business offices and medical offices are not permitted in the first storey of a building containing apartment dwellings.

7.XX.2 Special Parking Provisions

The following parking provisions apply:

Parking for apartment dwellings shall be provided at a rate of:

i) A minimum of 1.04 parking spaces per dwelling unit;

a) Up to 30 percent of the required number of parking spaces for apartment dwellings may be provided as tandem spaces.

b) Tandem parking spaces shall not be shared by more than one unit owner.

ii) A minimum of 0.08 visitor parking spaces per dwelling unit.

a) Visitor parking shall not be comprised of tandem parking spaces.

A minimum of one loading space is required.

Exception

7.X2

Times Group Corporation

South of Highway 7, between Bayview Avenue and South Park Road

Parent Zone

CA2

File

ZA XX

Amending By-law

2023-XX

Notwithstanding any other provisions of this By-law, the following provisions shall apply to the land denoted by the symbol *X2 on the schedules to this By- law. All other provisions, unless specifically modified/amended by this section, continue to apply to the lands subject to this section.

7.XX.1 Special Zone Standards

The CA2 Zone standards in Table B7 do not apply. The following special zone standards shall apply:

The lot line abutting South Park Road shall be deemed to be the front lot line

Maximum building height – 165 metres

Maximum number of dwelling units – 1,440

Minimum front yard – 1.5 metres

Minimum interior side yard – 5.0 metres

Minimum rear yard – 14.0 metres

Minimum landscaped open space – 25%

Maximum Floor Space Index – 8.7

7.XX.2 Special Parking Provisions

The following parking provisions apply:

Parking for apartment dwellings shall be provided at a rate of:

i) A minimum of 1.04 parking spaces per dwelling unit;

a) Up to 30 percent of the required number of parking spaces for apartment dwellings may be provided as tandem spaces.

b) Tandem parking spaces shall not be shared by more than one unit owner.

ii) A minimum of 0.08 visitor parking spaces per dwelling unit.

a) Visitor parking shall not be comprised of tandem parking spaces.

1.3 By adding the following subsections to Section 2.5 – HOLDING PROVISIONS:

“Holding Provision in the Leitchcroft Community (By-law 2023-XX)

The Holding provision (H) applying to those lands within the Leitchcroft Community as shown on Schedule A1, shall not be lifted until the following conditions have been met:

i) The Owner is required to make satisfactory arrangements, including execution of Site Plan Agreement (or Development Agreement or any other such agreement to the satisfaction of the City) for construction of municipal road and services at no cost to the City and provide financial securities, submit detailed engineering drawings, pay required fees in accordance with the latest Fee By-law, provide insurance, as required, to the satisfaction of Director of Engineering;

ii) Update the Transportation Impact Study prepared by NexTrans (dated October 2023) to the satisfaction of the City; and,

iii) The Owner is required to demonstrate that construction has commenced on Part of Block 45 prior to applying for any above grade building permits for any other portion of the site”

1.4 By deleting and replacing ‘Section 7.36.1 Additional permitted uses’ to state the following:

a) Art galleries

b) Commercial fitness centres

c) Libraries

d) Museums, private

e) Places of amusement

f) Private clubs

g) Restaurants, take-out

h) Retail store

i) Schools, commercial

j) theatres

k) Supermarket

l) Pharmacy

Provided that:

i) there is no outdoor storage and outdoor display and sales

ii) A supermarket shall have a minimum Gross Floor Area of 30,000ft².

1.5 Section 7.36.2f) is deleted.

All other provisions of By-law 177-66, as amended not inconsistent with the provisions of this by-law shall continue to apply.

Read and first, second and third time and passed on November XX, 2023.

Kimberly Kitteringham

City Clerk

Frank Scarpitti

Mayor

1107656 Ontario Inc. (Times Group) v. Markham (City), 2024 CanLII 11548

Case Summary

INTRODUCTION

CONTEXT

ISSUES BEFORE THE TRIBUNAL

ANALYSIS

Shadowing

Privacy

Proposed Settlement

ORDER