Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 27, 2024

CASE NO(S).: OLT-22-004578

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

Applicant/Appellant: Urban Capital Harbour (Marlee) Inc.

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

Description: To permit the development of a 12-storey residential building

Reference Number: 21 251194 NNY 08 OZ

Property Address: 774-782 Marlee Avenue

Municipality: City of Toronto

OLT Case No.: OLT-22-004578

OLT Lead Case No.: OLT-22-004578

OLT Case Name: Urban Capital Harbour Marlee Inc. v. Toronto (City)

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a 12-storey residential building

Reference Number: 21 251194 NNY 08 OZ

Property Address: 774-782 Marlee Avenue

Municipality/UT: City of Toronto

OLT Case No.: OLT-22-004579

OLT Lead Case No.: OLT-22-004578

Heard: January 23, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Urban Capital Harbour (Marlee) Inc.	Joe Hoffman, David Bronskill (in absentia)
City of Toronto	Marc Hardiejowski, Uttra Gautam

MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE ON JANUARY 23, 2024 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from a settlement hearing on appeals filed by Urban Capital Harbour (Marlee) Inc. (“Applicant”) in respect of the non-decision of the Council of the City of Toronto (“City”) on applications seeking amendments to the City’s Official Plan and Zoning By-law to facilitate the redevelopment of its lands. The appeals are filed pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O., 1990 c.P.13. (“Act”).

2The affected lands are municipally known as 774, 776, 778, 780 and 782 Marlee Avenue in the City of Toronto and are located on the west side of Marlee Avenue, approximately 65 metres south of Lawrence Avenue West (“Subject Property”). The lands are an assembly of five parcels, upon each of which there is an existing single detached dwelling.

3The Parties have reached a settlement and on consent are seeking the Tribunal’s approval, in principle, of the Settlement Proposal and the proposed planning instruments, which are draft Amendments to the Official Plan (“OPA”) and Zoning By-law (“ZBA”), contingent upon the satisfaction of Conditions set out in City Council’s Decision of December 13, 2023.

4The details of the Settlement Proposal are found in the Affidavit of Sean McGaffey, dated January 16, 2024, marked by the Tribunal as Exhibit 1. The Parties also filed with the Tribunal, a draft OPA marked as Exhibit 2, and a draft ZBA marked as Exhibit 3.

5Sean McGaffey, a Registered Professional Planner (“RPP”) was qualified by the Tribunal on consent of the Parties to provide expert opinion evidence in the areas of land use planning and urban design. Mr. McGaffey’s opinion evidence, provided by way of both his oral testimony and his Affidavit, was clear and fulsome and of assistance to the Tribunal in this matter.

6The Tribunal allows the appeal in part and approves the Settlement Proposal in principle, including the planning instruments being a draft OPA and ZBA (attached hereto), contingent upon the fulfilment of Conditions for the reasons set out below.

SETTLEMENT PROPOSAL

7The Settlement Proposal is a thoughtfully and well-designed mixed-use building of residential dwelling units and non-residential uses with inter-connected indoor and outdoor amenity spaces, including areas exclusively for children. It is located close to existing and planned transit infrastructure, including Line 1 Subway – Lawrence West Subway Station and existing public service facilities.

8The major components of the Settlement Proposal include the following:

a. A building height of 24 storeys, with the building mass configured into a podium tower typology and comprised of a 4 to 6 storey base element and an 18 storey tower element on the north portion of the building. The building has been thoughtfully designed with appropriate setbacks to the residential areas as outlined in Exhibit 1;

b. A total residential Gross Floor Area of 20,373 square metres (“sq m”) and a non-residential GFA of 60 sq m, resulting in a Floor Space Index of 6.80;

c. A total of 321 dwelling units, of which approximately 60 percent are one-bedroom, 24 percent are two-bedroom, 10 percent are three-bedroom, and 6 percent are studio dwelling units;

d. Indoor amenity space of 642 sq m (1.93 sq m per dwelling unit) and 651 sq m outdoor amenity space (2.02 sq m per dwelling unit);

e. A total of 155 vehicle parking spaces for residents and 7 vehicle parking spaces for visitors within a two-level parking garage, and there are also 4 at-grade vehicle spaces for off-street pick-up and drop-off activity;

f. A total of 94 long-term bicycle parking spaces and 66 short-term bicycle parking spaces;

g. One (1) Type-G Loading space and associated staging area;

h. The vehicular driveway to the building off Marlee Avenue at the north limit of the Subject Property;

i. The building is designed of green standard(s) for EV vehicle charging infrastructure and future rough-in for individual parking spaces;

j. Geothermal heating and cooling, resulting in a reduced footprint for mechanical space and greater setbacks to the building edge along Marlee Avenue;

k. All transportation, municipal servicing and pedestrian wind conditions, and other requirements have been considered as part of the Settlement Proposal. Updates to relevant studies are included as Conditions to this Decision; and,

l. The Settlement Proposal plans are reflected in the architectural plans included in Exhibit 1, Exhibit M.

LAND USE PLANNING POLICY ANALYSIS

Provincial Policy

9Mr. McGaffey reviewed s. 2 – Provincial Interests in the Act and noted the many matters that speak specifically to the Settlement Proposal, including h), j), p), q), and r). He opined that the Settlement Proposal considers all matters related to s. 2 of the Act.

10The Tribunal heard evidence related to the relevant policies in the Provincial Policy Statement, 2020 (“PPS”) in this matter. Mr. McGaffey’s evidence is that the Settlement Proposal:

a. Contributes to the development of a healthy, safe and livable community by providing an efficient pattern of development, providing a range of market-based housing types and sizes for persons in all stages of life. It also promotes the integration of land use planning and transit-supportive development to make efficient use of existing and planned infrastructure;

b. Makes efficient use of the Subject Property in a Settlement Area, supports existing and planned infrastructure including transit and supports active transportation, in a compact built form;

c. Promotes appropriate development standards which will facilitate intensification and re-development in a compact built form, and does so while avoiding or mitigating any risks to public health or safety;

d. Supports long-term economic prosperity by providing residential uses that respond to market-based needs with diverse housing options, and promotes a sense of place through well-scaled and designed built form and architectural design, as well as landscaping that acknowledges the existing pattern of development along Marlee Avenue.

11Mr. McGaffey opined that the Proposed Settlement is consistent with the PPS.

12With respect to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), Mr. McGaffey provided evidence that:

a. The Subject Property is located in the delineated Built-Up Area within a Settlement Area. There is immediate access to frequent transit along Marlee Ave. and higher order rapid transit (Line 1 Subway - Lawrence West Subway Station) located approximately 205 metres away. The surrounding area has several existing public service facilities;

b. The Settlement Proposal provides for appropriate intensification within the delineated Built-Up boundary and in an area that has been identified in the City’s Official Plan as being appropriate for growth;

c. The Settlement Proposal will contribute to exceeding the overall minimum density target of 200 residents and jobs per hectare along the Line 1 Subway-University Subway Major Transit Station Area (“MTSA”);

d. It makes efficient use of the existing and planned services, amenities, and infrastructure, including public transit, and it contributes to the development of a complete community centred around transit and active transportation; and,

e. The settlement proposal provides for new high-quality housing units, diversifying the existing housing stock, and improving the mix of uses in the area to allow more residents to meet their daily needs without the use of an automobile.

13Mr. McGaffey opined that the Settlement Proposal conforms to the policies of the Growth Plan.

Municipal Policy

City of Toronto Official Plan (“COP”) and Urban Design Guidelines

14Fulsome evidence was provided by McGaffey by way of both his Affidavit (Exhibit 1) and oral testimony on City’s Official Plan policy framework.

15Mr. McGaffey advised the Tribunal that the Subject Property is designated Neigbourhoods on Map 17, Land Use Plan in the COP. The proposed OPA seeks to re-designate the Subject Property to Mixed-Use Areas.

16It was Mr. McGaffey’s evidence that the Settlement Proposal conforms with the COP and supports the relevant City policies related to land use, public realm, built-form, and the natural environment.

17Mr. McGaffey made special note of how the Settlement Proposal addresses the criteria related to development in Mixed-Use Areas that are adjacent or close to Neighborhoods, most notably policy 4.5 (2) which sets out the criteria for new development within Mixed-Use Areas.

18Mr. McGaffey opined that the Settlement Proposal conforms with the intent of the City OP with specific reference to the Mixed-Use Areas designation, that the proposed re-designation was appropriate in this context, and will help achieve Provincial planning goals, and is in the public interest.

19The Tribunal was provided with detailed evidence related to Mr. McGaffey’s assessment of the Settlement Proposal in the context of the City’s Urban Design Guidelines for Tall Buildings and Growing Up! Planning for Children in New Vertical Communities. Mr. McGaffey opined that the Settlement Proposal has had adequate regard for the applicable City guidelines.

City of Toronto Zoning By-law No. 569-2013, as amended

20It is proposed that the Subject Property be rezoned to an appropriate Zone category and that site specific performance standards be established to implement the Settlement Proposal.

21The Tribunal was provided with a draft ZBA to amend By-law 569-2013 (Exhibit 3).

CONDITIONS

22City Council, in its meeting of December 13, 2023, adopted a Report and the Recommendations of City Staff in respect of the appeals and the Settlement Proposal. This Report is found in Exhibit 1, Exhibit L.

23The Report sets out City Council’s request that the Tribunal include certain conditions prior to issuing a Final Order. The conditions include the finalization of the required OPA and ZBA, provisions for updated technical studies related to site servicing, transportation, pedestrian level wind study, etc., and provisions for entering into agreement(s) for the design and construction of any improvements to municipal infrastructure, etc., as may be determined through the updated studies, all to the satisfaction of the City.

24Mr. McGaffey noted that he has reviewed the conditions and agrees that they are appropriate conditions to apply in this context.

TRIBUNAL FINDINGS

25The Tribunal accepts the evidence of Mr. McGaffey in its entirety and finds the proposed OPA and ZBA (and the redevelopment that will be implemented) meet all the relevant policy tests of s. 2 of the Act, the PPS, the Growth Plan, all relevant foundational policies of the City OP, and the intent of the City’s By-law No. 569-2013. The development represents good planning and is in the public interest.

26The Tribunal finds that the City has well-established planning policy for the Subject Property and surrounding area, and has followed a comprehensive planning review of the Settlement Proposal. The Applicant has presented detailed plans which are used as the basis for the necessary ZBA changes. These plans are found in Exhibit 1, Exhibit M.

27The Tribunal is satisfied that the Proposed OPA and ZBA are appropriate to facilitate the re-development of the Subject Property for the provision of much needed housing supply in a manner that fits within its local context. The Tribunal agrees that the Settlement Proposal has had appropriate regard for the relevant City Guidelines.

28In making its Decision on the appeals before it, the Tribunal has had appropriate regard for matters of provincial interest set out in s.2 of the Act and is satisfied that the Settlement Proposal should be approved in principle, subject to Conditions.

29The Tribunal finds that the Settlement Proposal aligns with the established principles of relevant Provincial policy (PPS) and the COP as they will facilitate a development that:

a. Is located on lands within “Mixed Use Areas” designation in the City OP where intensification is promoted. It is close to existing and proposed public transit facilities and routes;

b. Represents a comprehensive, well-organized development and land use pattern that serves to make efficient use of land and infrastructure;

c. Accommodates an appropriate range of residential and other uses and contributes to the supply and range of housing options through intensification and redevelopment sensitive to the surrounding area;

d. Serves to integrate land use planning, growth management, transit supportive development as it offers excellent transit-oriented development;

e. Promotes density and a mix of land uses which result in the efficient use of land and infrastructure. It is appropriately scaled and sized to ensure a balance between the priority of intensification without resulting in negative built form impacts on nearby low-density neighbourhoods, by providing a gradual transition of scale and density;

f. Contributes to the creation of complete communities and optimizes the use of land and infrastructure; with a diverse mix of land uses by promoting a compact built form that is integrated into the community and with adjacent land uses;

g. Protects the natural environment; and,

h. Makes efficient use of available infrastructure to accommodate growth.

30The Tribunal is satisfied that the Settlement Proposal is consistent with the PPS and conforms with the Growth Plan and COP.

31The Tribunal has had regard to the decision of City Council, and the information and materials considered by it. The Tribunal acknowledges City Council’s consent to the Settlement Proposal.

32The Tribunal finds that the conditions requested by the City and found in Exhibit 1, Exhibit L are appropriate and must be met by the Applicant in keeping with normal City practices. These Conditions are found in the Interim Order of this Tribunal.

33In conclusion, the Tribunal finds that the Proposed Settlement as illustrated in the series of architectural plans found in Exhibit 1, Exhibit M will be an appropriate and desirable addition to the City, represents good land use planning, is consistent or in conformity with, and meets, the objectives of all requisite public policy, and is in the public interest.

INTERIM ORDER

34THE 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 [35] below, and the Official Plan Amendment and Zoning By-law Amendment set out in Attachments 1 and 2, respectively, are hereby approved in principle.

35The Tribunal will withhold the issuance of its Final Order contingent upon confirmation from the City Solicitor, of the following pre-requisite matters:

a. The Tribunal has received and approved the Official Plan Amendment in a final form, satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor.

b. The Tribunal has received and approved the Zoning By-law Amendment in a final form, satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor. It is noted that the Zoning By-law Amendment may include provisions for a holding by-law pursuant to Section 36 of the Planning Act regarding the provision of an acceptable sanitary system solution constructed and operational as determined by the Chief Engineer and Executive Director, Engineering and Construction Services, which may include the applicant obtaining the Ministry of the Environment, Conservation and Parks Environmental Compliance Approval and upgrading the existing municipal infrastructure off site, subject to review of the updated Functional Servicing Report to be provided by the Owner;

c. The Tribunal is advised that the Owner has satisfactorily addressed the Transportation Services and Engineering and Construction Services matters in the Engineering and Construction Services Memorandum dated August 10, 2023, and any outstanding issues arising from the ongoing technical review (including but not limited to provision of acceptable reports and studies, parking supply, and the Toronto Green Standards), as they relate to the Official Plan Amendment and Zoning By-law Amendment to the satisfaction of the General Manager, Transportation Services, and Chief Engineer and Executive Director, Engineering and Construction Services;

d. The Tribunal has been advised that the Owner has submitted to the Chief Engineer and Executive Director of Engineering and Construction Services for review and acceptance, prior to approval of the rezoning application, a Functional Servicing Report to determine the storm water runoff, sanitary flow, and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development;

e. The Tribunal is advised that the Owner has made satisfactory arrangements with Engineering and Construction Services to enter into the appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the accepted Functional Servicing Report accepted by the Chief Engineer and Executive Director of Engineering and Construction Services;

f. The Tribunal has been advised that the Owner has agreed to provide financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the acceptable Functional Servicing Report and Stormwater Management Report, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and General Manager, Toronto Water, where it has been determined that improvements or upgrades are required to support the development, and in requiring any off site municipal infrastructure upgrades, the Owner is to make satisfactory arrangements with Engineering and Construction Services for Work on the City's Right-of-Way;

g. The Tribunal has been advised that the Owner has provided space within the development for the installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Sewers By-law Chapter 681.10;

h. The Tribunal has been advised that the Owner has submitted a Housing Issues Report and tenant relocation and assistance plan to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor in accordance with Official Plan Policy 3.2.1.12;

i. The Tribunal has been advised that the Owner has submitted an updated Pedestrian Level Wind Study, to the satisfaction of the Chief Planner and Executive Director, City Planning;

j. The Tribunal has been advised that the Owner has submitted an updated complete Toronto Green Standards Checklist and Statistics Template, to the satisfaction of the Chief Planner and Executive Director, City Planning;

k. The Tribunal has been advised that the Owner has 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,

l. The Tribunal is advised that the Owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor.

36The 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.

37If 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, July 26, 2024, 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.

38The 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 instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“S.L. Dionne”

S.L. DIONNE MEMBER

Ontario Land Tribunal Website: 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 – DRAFT OFFICIAL PLAN AMENDMENT

ATTACHMENT 2 – DRAFT ZONING BY-LAW