Donshep Developments Limited v. Toronto (City), 2024 CanLII 118355

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 21, 2024

CASE NO(S).: OLT-23-000093

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

Applicant and Appellant: Donshep Developments Limited Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of 823 residential units and 982.4 square metres of at-grade commercial space Reference Number: 22 135742 NNY 17 OZ Property Address: 2500 Don Mills Road Municipality: City of Toronto OLT Case No.: OLT-23-000093 OLT Lead Case No.: OLT-23-000093 OLT Case Name: Donshep Developments Limited v. Toronto (City)

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

Applicant and Appellant: Donshep Developments Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of 823 residential units and 982.4 square metres of at-grade commercial space Reference Number: 22 135742 NNY 17 OZ Property Address: 2500 Don Mills Road Municipality: City of Toronto OLT Case No.: OLT-23-000094 OLT Lead Case No.: OLT-23-000093 OLT Case Name: Donshep Developments Limited v. Toronto (City)

Heard: November 8, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Donshep Developments Ltd.	Michael Foderick Jamie Cole
City of Toronto	Daniel Elmadany Laura Bisset (in absentia)
2076203 Ontario Ltd. and 2076204 Ontario Ltd.	Justine Reyes Christopher Tanzola (in absentia)
Hunters Lodge Apts. Inc.	Bruce Engell

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON NOVEMBER 8, 2024 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This was a settlement hearing with respect to Appeals brought pursuant to ss. 22(7) and 34(11) of the Planning Act (“Act”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) for the property municipally addressed as 2500 Don Mills Road (“Subject Property”) located in the City of Toronto (“City”), for the failure of council to adopt or to make a decision within the legislated timeframe.

2The purpose of the original Application was to permit the development of two towers with heights of 30 and 39 storeys. A revised Application was also submitted with two tower heights of 52 and 43 storeys. Mediation sessions between the Parties resulted in the revised Application within this settlement to permit tower heights of 49 and 44 storeys with 1,196 residential units with a gross floor area of 73,900.9 square metres (“m²”).

3The Subject Property is situated at the northwest intersection of Don Mills Road and Sheppard Avenue East. The Subject Property currently contains a gas station and associated uses. The Subject Property is designated mixed-use areas within the City’s Official Plan and within the Sheppard East Subway Corridor Secondary Plan. The Subject Property is subject to Official Plan Amendment No. 476 (“OPA No. 476”) and associated Official Plan Amendment No. 490, which both establish a general planning framework for the block bound by Sheppard Avenue East, Don Mills Road, Leith Hill Road, and St. Timothy's Catholic School.

4The Subject Property is zoned ‘C1 – General Commercial Zone’ by former City of North York Zoning By-law No. 7625, which was first enacted in 1952. The Subject Property is not subject to the City of Toronto City-wide Zoning By-law No. 569-2013. The C1 – General Commercial Zone permits a variety of commercial and institutional uses. The Subject Property would be proposed to be brought into City-wide Zoning By-law No. 569-2013.

PROPOSED SETTLEMENT

5The Applicant and the City (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeals and wish to reflect their agreement herein, before the Tribunal for approval.

6The Parties request that the Tribunal allow the Appeals and approve in principle the OPA and ZBA based on a modified proposal for its residential towers connected by a mixed-use podium agreed to with the City, and that the Tribunal shall withhold the issuance of its final order in the OPA and ZBA until the City has advised that subject to the Conditions (6) have been satisfied. Regarding Condition # 1 concerning the OPA and Condition # 2 regarding the ZBA, the Parties are currently working on this instrument and, following review and satisfaction by the City, the Parties will submit this instrument to the Tribunal for issuance as part of their request to have a final order issued.

7The changes made to the Applications in support of the settlement plans include the following:

• Changing the tower heights from 52 and 43 storeys to 49 and 44 storeys;
• Increasing total gross floor area from 72,682.7 m² to 73,900.9 m²;
• Providing 1,003 m² of non-residential gross floor area at-grade along Sheppard Avenue, Don Mills Road and future Street B;
• Relocating the taller tower from the north portion of the site to the south end;
• Increasing tower floorplates of both buildings from 750 metres (“m") to 780 m;
• Increasing tower separation on site from 26.8 m to 34.27 m;
• Maintaining the public park at the northwest portion of the subject site and providing public access through the widened lands to Don Mills Road, incorporating interim servicing for the park and the provision of access through an east-west easement from Don Mills Road, until such time as Street B is constructed and conveyed to the City from the adjacent landowners;
• Removing the driveway at the north part of the site and providing for a new interim access roughly through the center of the Don Mills Road frontage generally in the location of the existing curb cut, that would be closed when Street B is conveyed and open for public use;
• Shifting the north tower towards the north of the site, reducing the ground floor setback from 11.67 m to 6.5 m to the current north property line;
• Increasing the number of units from 1,167 to 1,196;
• Increasing bike parking from 876 to 896;
• Decreasing vehicle parking from 339 spaces (including 29 for visitors) to 318 (maintaining a minimum of 28 parking spaces for visitors);
• Increasing outdoor amenity space from 1.5 m² per unit to 1.75 m² per unit while leaving the indoor amenity space rate of 1.5 m² per unit unchanged;
• Minor changes to floor areas and unit mix associated with the above changes, providing a minimum of 10% three-bedroom and 15% two-bedroom units in the development;
• Adding a publicly accessible mid-block connection in the form of a pedestrian walkway and landscaped area on the western edge of the property, connecting Sheppard Avenue East and the new public park; and,
• Providing 2% of the residential gross floor area as affordable rental housing for a minimum of 40 years.

8FVM Property Inc. and CF/Realty, Counsel Max Laskin, advised he would not attend the settlement hearing and advised that FVM Property Inc. and CF/Realty Holdings Inc. have no objection to the settlement.

WITNESS

9Evidence in support of the proposed Application was provided by Graig Uens, a Land Use Planner. Mr. Uens was qualified to provide expert land use planning opinion evidence.

10The Tribunal marked the following documents as an Exhibit:

Exhibit 1: Affidavit of Graig Uens dated November 5, 2024. Exhibit 2: Draft Plan Conditions Exhibit 3: Draft OPA

EVIDENCE

11Mr. Uens provided a Summary Expert Opinion, that the proposed settlement constitutes appropriate development of a mixed-use area site, located at the intersection of two Avenues and major streets, within the Sheppard East Subway Corridor Secondary Plan (“SESCSP”) and the Council-approved Don Mills Major Transit Station Area, with good access to amenities and transit. The proposed mix of uses of residential and non-residential uses, support a diverse mix of uses in the area. The proposed unit mix contributes to the City’s housing targets by providing a variety of apartment units in an area that includes large areas of low-rise residential buildings, a large shopping centre with considerable surface parking, existing apartment buildings, schools, and open spaces.

12According to Mr. Uens, as part of the Settlement Plans, an interim vehicle access along the Don Mills Road frontage is proposed through the podium at the ground floor level. When the new east-west street B is constructed, vehicle access would be relocated from the Don Mills Road entrance to a driveway intersecting the new street. A public pedestrian connection through the podium would replace the interim vehicle access at this time. The north setback would remain as a landscaped pedestrian space and both a visual and physical connection to the new park from Don Mills Road.

13Mr. Uens advised the original and revised Applications had maintained the private driveway adjacent to future Street B in OPA No. 476. The uses that were previously proposed along the private driveway were primarily servicing and back of house uses. In addition to removing the private driveway from this location on the north end of the Site, the built form was revised, as shown in the settlement plans, to align the base building to create a building edge with non-residential uses at-grade that wrapped the corner at Don Mills and future Street B to better relate to the existing and planned public street system and animate the public realm.

14Mr. Uens highlighted the built form in the settlement plans appropriately relates to all adjacent streets and properties, including the future street along the north property line, the proposed park to the northwest, the St. Timothy Catholic School property to the west, and low-rise housing to the northwest, limiting impacts to areas of lower scale in accordance with the City’s built form policy objectives.

15In Mr. Uens opinion, the built form in the Settlement plans has been designed, massed, and sited with regard for the site and surrounding area, is consistent with relevant provincial and city policy documents, relevant guidelines, and current best practices. The revised built form improves the public space along all current and future public frontages and has been designed and sited with specific regard for the City’s public realm policies.

16Mr. Uens advised, a new public park of 661 m² will be created which will add to the planned future park of 1,604 m² within the OPA No. 476 Block as established in the SESCSP s. 4.2.10 Sheppard-Don Mills-Leith Hill and contributes to supporting the achievement of a complete community.

17A new public park of 661 m² will be created which will add to the planned future park of 1,604 m² within the OPA No. 476 Block as established in the SESCSP Section 4.2.10 Sheppard-Don Mills-Leith Hill and contributes to supporting the achievement of a complete community.

18The proposed affordable housing benefit, representing 2% of the residential gross floor area, responds directly to the SESCSP Policy 4.2.10 e) related to the objective of creating a complete community by providing affordable housing. The affordable housing provided on this site would be for a minimum period of 40 years.

19In Mr. Uens opinion, the proposed settlement has regard for the matters of provincial interest under s. 2 of the Act, is consistent with the Provincial Planning Statement, 2024 (PPS), and conforms with the City Official Plan (“OP”), as amended by the proposed OPA and relevant City Guidelines. Mr. Uens advised, as of the date of his Affidavit and Hearing, the Province has not enacted any transition regulation related to the PPS, which applies to this site, therefore only the PPS applies and not the former Growth Plan or Provincial Policy Statement, 2020. The proposed settlement represents good planning and is in the public interest.

Disposition

20In the absence of any planning evidence to the contrary, the Tribunal accepts the land use planning evidence and expert opinion provided by Mr. Uens in the form of an Affidavit sworn on November 5, 2024, and oral evidence at this Hearing. The proposed development is consistent with the PPS, has been designed in accordance with the policies of the City OP and relevant City Guidelines, and represents good planning.

21The Tribunal acknowledges the cooperation between the Parties in having reached a Settlement.

ORDER

22THE TRIBUNAL ORDERS that the appeals are allowed in part and the Tribunal shall withhold the issuance of its final order in the Official Plan Amendment and Zoning By-law Amendment until the City has advised that:

1. the final form and content of the draft Official Plan Amendment substantially in accordance with Confidential Appendix C to the report (July 12, 2024) from the City Solicitor is satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;
2. the final form and content of the draft Zoning By-law Amendment is satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;
3. the owner has, at its sole expense: a. submitted a revised Functional Servicing Report and Stormwater Management Report, Hydrogeological Review, including the Foundation Drainage Report ("Engineering Reports") to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water; b. secured the design and provided financial securities in respect of any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the Engineering Reports accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water; c. ensured that implementation of the accepted Engineering Reports does not require changes to the proposed amending By-law or that any required changes have been made to the proposed amending By-law to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, including the use of a Holding By-law symbol regarding any new municipal servicing infrastructure or upgrades to existing municipal servicing infrastructure, as may be required; d. submitted an updated Transportation Impact Study or Addendum, and updated Parking and Loading Study or Addendum, to reflect revisions to site circulation, loading, parking and access for the development, to the satisfaction of the General Manager, Transportation Services; e. submitted a revised Travel Demand Management Plan acceptable to, and to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services, and that matters arising from such study be satisfactorily addressed and secured if required; f. submitted an updated Pedestrian Level Wind Study, and thereafter implemented any necessary mitigation measures in the Zoning By-law Amendment, to the satisfaction of the Chief Planner and Executive Director, City Planning; and, g. submitted an updated Sun/Shadow Study to the satisfaction to the Chief Planner and Executive Director, City Planning.
4. an agreement pursuant to subsection 37(7.1) of the Planning Act has been entered into between the City and the owner and registered on title to the lands to secure the provision of the in-kind contributions identified in Part 3 (contribution of affordable housing) of the City Council Decision under Item DM21.1, dated September 5, 2024, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;
5. the owner has secured the conveyance to the City of a portion the interim access driveway, abutting the Don Mills Road right-of way, to the satisfaction of the General Manager, Transportation Services, the Chief Engineer and Executive Director, Engineering and Construction Services, the Executive Director, Corporate and Real Estate Management and the City Solicitor; and,
6. an easement is conveyed to the owner, and an easement agreement is entered into to be registered on title to the lands conveyed to the City in Condition 5, above, to authorize interim vehicular, pedestrian and cycling access over such lands, in a content and form satisfactory to the General Manager, Transportation Services, the Chief Engineer and Executive Director, Engineering and Construction Services, the Executive Director, Corporate and Real Estate Management, and the City Solicitor.

23AND THE TRIBUNAL FURTHER ORDERS that it may be spoken to should a matter arise in connection with the implementation of this Interim Order.

“Eric S. Crowe”

ERIC S. CROWE 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.