Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 09, 2024 CASE NO(S).: OLT-23-000351
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Appellant: Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the construction of a 60-storey mixed-use building Property Address: 49-51 Yonge Street Municipality: Toronto/Toronto Reference Number: 21 235446 STE 13 OZ OLT Case No.: OLT-23-000351 OLT Lead Case No.: OLT-23-000351 OLT Case Name: Calloway Real Estate Investment Trust Inc. v. Toronto (City)
Heard: In Writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp (“Appellants/Applicants”) | Joe Hoffman |
| City of Toronto (“City”) | Gabe Szobel |
| 53 Yonge Portfolio Inc. and 55 Yonge Portfolio Inc. | Daniel Angelucci |
| bcIMC Realty Corporation | Jonathan Cheng |
| 20 Wellington Street Toronto Holdings Inc. | Grace O’Brien |
DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The Tribunal convened a hearing in writing only to consider a settlement with regard to an appeal brought pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) by the Applicants/Appellants against the non-decision of the City concerning Zoning By-law Amendment (“ZBA”) to permit the construction of a 60-storey mixed-use building at 49-51 Yonge Street (“Subject Property”) in the City.
2The Subject Property is located on the northeast corner of Yonge Street and Wellington Street. The Subject Property has an area of 582 square metres (“m2”) and the inclusion of the lane on the east side of the site would increase the size to 702 m2. The lane is not under the ownership of the Applicants, and it is not part of the application before the Tribunal.
3The Subject Property is currently occupied by a 4-storey commercial building with ground floor retail facing Yonge Street and Wellington Street. The ground floor area was previously utilized for a restaurant use but is now vacant. The main entrance to the office portion of the building is from Wellington Street, while access to the restaurant is directly from Yonge Street. The loading area is accessed via a private lane from Wellington Street.
4The November 2021 submission to the City was for a 60-storey mixed-use building. The property at 49 Yonge Street is designated under Part IV of the Ontario Heritage Act, RSO 1990, c O.18a (“OHA”) and at the time of the November 2021 submission, the property at 51 Yonge Street was listed on the City’s Heritage Register. Portions of both properties were proposed to be preserved and incorporated into the podium of the proposed mixed-use development.
5The Parties advised that a settlement had been reached. The settlement proposal (“Settlement Proposal”) consists of:
The addition of a 58-storey residential tower to the existing 4-storey buildings for a total of 62-storeys (exclusive of a mechanical penthouse).
The heritage elements of both the existing 4-storey designated heritage property at 49 Yonge and the building on the recently designated heritage property at 51 Yonge will be conserved as part of the residential tower design.
Adjusted setbacks, stepbacks and tower setbacks to ensure appropriate heritage conservation and an appropriate relationship with neighbouring properties and buildings.
A total of 247 residential units and 1,752 m2 of commercial Gross Floor Area (“GFA”) are proposed, resulting in a total GFA of 21,642 m2 and a floor space index (“FSI”) of 37.19.
Amenity space shall be provided at a minimum ratio of 2 m2 for indoor amenity space for each dwelling unit and a minimum ratio of 0.9 m2 for outdoor amenity space for each dwelling unit.
Two levels of below-grade floor area are proposed that will accommodate 248 bicycle parking spaces, stormwater tanks, electrical and telecommunication rooms on the first below-grade level.
The lower basement level accommodates a mechanical room, stormwater management tank along with garbage and bin storage areas.
No minimum requirement for resident vehicle parking spaces, visitor parking spaces or commercial/non-residential parking spaces, with minimum bicycle parking spaces to be provided in accordance with applicable City Zoning By-laws.
ISSUES
6Under Rule 12.1 of the Tribunal’s Rules of Practice and Procedure, the issues to be addressed by the Tribunal when considering a proposed settlement are whether all statutory requirements and the public interest are satisfied. Based on these considerations, the Tribunal will determine whether the ZBA should be approved, amended, or repealed and whether the proceedings should be continued or dismissed.
7When adjudicating a ZBA, the Tribunal must determine whether the proposed amendment:
Is consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2024 (“PPS, 2024”)); and
Represents good planning.
8With regard to ZBA appeals, the Tribunal must also determine whether the proposed amendment conforms with the applicable official plans.
9The Tribunal also must have regard to the matters of provincial interest set out in s. 2 of the Act and regard to the decision of the City and the information considered by it pursuant to s. 2.1(1) of the Act.
SUBMISSIONS AND EVIDENCE
10In support of the proposed settlement, the Applicant filed an affidavit sworn by Michael S. Goldberg, dated June 26, 2024, marked as Exhibit 1. Mr. Goldberg is a Principal of a land use planning consulting firm. Based on his experience and expertise, the Tribunal qualified him to provide opinion evidence as an expert in land use planning.
11A Supplementary Affidavit to Mr. Goldberg’s affidavit was requested by the Tribunal on October 22, 2024. This request was due to the implementation date of PPS 2024 on October 20, 2024. The Tribunal received the Supplementary Affidavit on November 28, 2024, marked as Exhibit 2.
12Mr. Goldberg stated that the Settlement Proposal addresses building design criteria, represents a sensitively designed mixed-use redevelopment of residential, office and retail uses, while integrating the important heritage resources and attributes of the existing buildings on site.
13Mr. Goldberg advised that the Settlement Proposal fits in with the existing and planned context and does not result in any adverse planning impacts to neighbouring lands, open spaces, or public parks. In addition, as directed by the PPS 2024 and the Downtown Secondary Plan (“OPA 406”), the proposal optimizes the use of this land and available infrastructure in the Downtown area where significant growth is directed.
14Mr. Goldberg opined that the Settlement Proposal provides for the redevelopment of the Subject Property in a manner that is sensitive to the existing and planned context, and in particular the important heritage resources and attributes of the existing building. He further opined that the Settlement Proposal provides for a compact built form that is transit-supportive, located in an identified Urban Growth Centre, and will not result in undue adverse impacts to the surrounding area, all while contributing to the City’s housing targets.
15Mr. Goldberg advised that the Settlement Proposal is consistent with the PPS 2024, conforms to the City Official Plan (“COP”), OPA 406, Downtown Tall Buildings Setback Site and Area Specific Policy (SASP) No. 517 (“OPA 352”) and represents good land use planning.
ANALYSIS AND FINDINGS
16Under Rule 12.1, if all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving a proposed settlement with any necessary amendments. In considering the statutory provisions and the public interest, the Tribunal must determine whether the outcome of the proposed settlement conforms with the provisions of the applicable legislation. This informs the Tribunal on whether the appeal should be allowed or dismissed and whether, in the present case, the ZBA should be approved, amended, or repealed, in whole or in part, under s. 34(26) of the Act.
17The applicable statutory requirements to be addressed by the Tribunal in a ZBA appeal under s. 34(11) of the Act are found in s. 2, s. 2.1, s. 3(5), and s. 24(1) of the Act.
18The Tribunal accepts the uncontradicted planning opinion evidence of Mr. Goldberg in its entirety. The Tribunal had regard for the decision and considered the information available to City Council pursuant to s. 2.1(1) of the Act and finds that the Settlement Proposal meets all the relevant tests of s. 2 of the Act, the PPS 2024, is in conformity with the City OP, represents good planning, and is in the public interest.
19Mr. Goldberg recommends that the Tribunal should approve the ZBA and withhold its Final Order until:
The Zoning By-law Amendment has been finalized in a form and content satisfactory to the City Solicitor and Chief Planner and Executive Director, City Planning, that implements the proposed development;
The Owner has provided an access agreement for shared vehicle access and a loading agreement for shared loading facilities, to the satisfaction of the General Manager, Transportation Services;
The Owner has addressed outstanding issues in relation to site servicing and has submitted a Functional Servicing Report, Hydrogeological and Geotechnical Report, and any other related engineering reports and drawings, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and has agreed that the design and implementation of municipal infrastructure will be at the Owner’s sole cost and expense for any upgrades or improvements to City infrastructure identified in the approved Functional Servicing and Stormwater Management, Hydrogeological and/or Geotechnical Reports, with such improvements being secured to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
The Owner provides a detailed Conservation Plan, prepared by a qualified heritage consultant that is consistent with the conservation strategy set out in the Heritage Impact Assessment for 49 and 51 Yonge Street dated February 20, 2024, prepared by GBCA Architects, to the satisfaction of the Senior Manager, Heritage Planning; and,
The Owner enters into a Heritage Easement Agreement with the City for the properties at 49 and 51 Yonge Street substantially in accordance with the plans and drawings dated February 8, 2024, prepared by Architects Alliance and the required Conservation Plan.
ORDER
20THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, on an interim basis contingent on the satisfaction of the conditions set out in paragraph [21] below and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is approved in principle.
21THE TRIBUNAL ORDERS THAT the Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:
The Zoning By-law Amendment has been finalized in a form and content satisfactory to the City Solicitor and Chief Planner and Executive Director, City Planning, that implements the proposed development;
The Owner has provided an access agreement for shared vehicle access and a loading agreement for shared loading facilities, to the satisfaction of the General Manager, Transportation Services;
The Owner has addressed outstanding issues in relation to site servicing and has submitted a Functional Servicing Report, Hydrogeological and Geotechnical Report, and any other related engineering reports and drawings, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and has agreed that the design and implementation of municipal infrastructure will be at the Owner’s sole cost and expense for any upgrades or improvements to City infrastructure identified in the approved Functional Servicing and Stormwater Management, Hydrogeological and/or Geotechnical Reports, with such improvements being secured to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
The Owner provides a detailed Conservation Plan, prepared by a qualified heritage consultant that is consistent with the conservation strategy set out in the Heritage Impact Assessment for 49 and 51 Yonge Street dated February 20, 2024, prepared by GBCA Architects, to the satisfaction of the Senior Manager, Heritage Planning; and,
The Owner enters into a Heritage Easement Agreement with the City for the properties at 49 and 51 Yonge Street substantially in accordance with the plans and drawings dated February 8, 2024, prepared by Architects Alliance and the required Conservation Plan.
22The 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.
23If 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 [21] above have been satisfied, and do not request the issuance of the Final Order, by Wednesday, May 28, 2025, the Parties 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 Zoning By-law Amendment and issuance of the Final Order by the Tribunal.
“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