Timbertrin (Guildwood) GP Inc. v. Toronto (City), 2024 CanLII 16968

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 29, 2024

CASE NO(S).: OLT-22-002424

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

Applicant/Appellant: Timbertrin (Guildwood) GP Inc.

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

Description: Reference Number ZBA to permit 4 mixed-use buildings 21 138377 ESC 24 OZ

Property Address/Description: 4121 Kingston Road

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002424

OLT Lead Case No.: OLT-22-002424

OLT Case Name: Timbertrin (Guildwood) GP Inc. v. Toronto (City)

Heard: February 8, 2024, in writing

APPEARANCES:

Parties	Counsel
Timbertrin (Guildwood) GP Inc. ("Applicant/Appellant")	Rodney Gill, David Bronskill
City of Toronto ("Toronto")	Mark Crawford
Metrolinx	Christie E. Gibson

MEMORANDUM Of WRITTEN DECISION DELIVERED BY JACKIE DENYES ON FEBRUARY 8, 2024, AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1This matter before the Tribunal concerns an appeal filed by Timbertrin (Guildwood) GP Inc. (the "Applicant / Appellant") pursuant to s. 34 (11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act") against the City of Toronto for its failure to make a decision on an application to amend the Zoning By-law within the applicable timeframes prescribed in the Act. The application was deemed complete on June 1, 2021.

2Throughout 2022 and early 2023, ongoing dialogue ensued between City Staff, the Applicant/Appellant and Metrolinx to resolve issues of proposed heights, density, built form, site organization and parkland dedication requirements which have culminated in this Revised Settlement Proposal. The lands that are subject to the Appeal are known municipally as 4121 Kingston Road located on the south side of Kingston Road in East Scarborough within the West Hill Neighbourhood ("Subject Lands / Subject Site"). It has a frontage of approximately 170 meters ("m") along Kingston Road, an approximate depth of 70 to 190 m and a total site area of approximately 1.58 hectares (15,775 square meters ("m²")) as shown in Exhibit "C" of Mr. Huynh's affidavit.

3The surrounding area context contains low-rise buildings, townhouse apartments, vehicle dealerships and commercial plazas and is identified as a Neighbourhood Improvement Area. To the immediate south of the site is Metrolinx's Guildwood GO Transit Station. To the south of the GO station is the Guildwood Neighbourhood characterized by low-rise residential uses.

4The site has three shared access points including one with Metrolinx Guildwood GO Transit Station, Kingston Road intersection with Celeste Drive and two off of Kingston Road. The Revised Settlement Proposal encompasses the development of a comprehensive road network plan (two new public streets) that will increase connectivity through the Subject Site, the entire block and to the surrounding area.

5On July 19, 2023, Toronto City Council adopted the Revised Settlement Proposal from the Applicant/Appellant which deals with Built Form, On-Site Parkland & Public Realm, and Road Network. The Revised Settlement Proposal will see the development of two mid-rise buildings being 13 (Building A) and 12 storeys (Building B) along Kingston Road and two taller buildings at 29 (Building C) and 38 storeys (Building D), within the southerly portion of the property adjacent to the Guildwood GO Transit/VIA Rail station parking lot, thereby resulting in the creation of 1029 residential units.

6The Tribunal has been informed that Metrolinx and the Applicant/Appellant have now also reached a Proposed Settlement.

EVIDENCE

7The Tribunal marked as Exhibit 1 the affidavit of David Huynh, Registered Professional Planner affirmed on February 5, 2024. Mr. Huynh was retained on behalf of the Applicant/Appellant in support of the Revised Settlement Proposal for the development of lands in accordance with the Revised Plans identified as Exhibit "F" in his affidavit and the draft Zoning By-law Amendment ("Draft ZBL") identified as Exhibit "L".

8Mr. Huynh opined that the Revised Settlement Proposal contemplates approximately 1,029 residential dwelling units, along with approximately 3,550 m² of retail space, and 481 parking spaces. In terms of amenity space, a total of 4,224 m² is provided (min.4.0 m²/dwelling unit) of which approximately 2,071 m² is allocated indoor amenity space.

9Regarding on-site parkland and public realm, Mr. Huynh noted that through mediation with City Staff, Metrolinx and the Applicant/Appellant, on-site parkland dedication of approximately 719 m² is proposed to satisfy a portion of the parkland dedication requirement pursuant to s. 42 of the Act and in keeping with policy 3.2.3(8) of the Official Plan ("OP"). The remainder of the parkland dedication requirement will be provided as a cash-in-lieu payment prior to the issuance of the first above-ground building permit.

10In addition to the on-site parkland dedication, 388 m² of enhanced landscape is proposed immediately adjacent to the proposed park as a privately-owned, publicly accessible, open space, as an extension of the public park which will be secured through the Zoning By-law Amendment.

LEGISLATION

11As outlined in his affidavit, Mr. Huynh undertook a detailed review of the relevant legislation in sum as follows:

[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

12Mr. Huynh opined that the Settlement Proposal has regard for the applicable matters of provincial interest set out in s. 2 of the Act, specifically addressing the orderly development of safe and healthy communities, relating to the adequate provision of a full range of housing, as the Subject Lands are an appropriate location of growth and development, the Settlement Proposal is designed to be sustainable, supports public transit and is oriented to pedestrians and promotes a built form that is well-designed and encourages a sense of place.

Provincial Policy Statement, 2020 ("PPS")

13In consideration of the PPS Mr. Huynh opined that the Settlement Proposal and Draft ZBL are consistent with the PPS and applicable policies 1.1.1., 1.1.3.2, 1.1.3.4, 1.2.6.1., 1.6.3, 1.7.1 and 1.8.1. He proffered that the Settlement Proposal supports the PPS policies relating to heritage conservation, building strong communities by promoting efficient development and land use patterns, accommodating residential intensification with a range of housing types, densities and mix of land use that efficiently use resources, infrastructure, and services, are transit-supportive and promote active transportation.

Growth Plan for the Greater Golden Horseshow (2019, as amended) ("Growth Plan")

14In his affidavit, Mr. Huynh sets out the policies addressed in the Growth Plan that provide framework for implementing the province's vision for managing growth across the region to the year 2051. Mr. Huynh referred to s. 1.2.1, 1.2.3, 2.1, 2.2.1(2)(c), 2.2.2(4), 2.2.2(3), 2.2.4(1) (2), (3)(a), 5.2.5(1), 2.2.4(6), 2.2.4(9), 2.2.6 (1) and (2), 3.1, 3.2.3(1)(2), 4.2.5(2), 4.2.10(1), and 5.2.5(6).

Metrolinx Regional Transportation Plan

15Mr. Huynh indicates in his affidavit on March 8, 2018, that Metrolinx adopted a new Regional Transportation Plan ("2041 RTP") that sets out key goals and directions that go beyond the Growth Plan to provide more detailed strategies and actions for the Greater Toronto and Hamilton Area's transportation systems. He referred to Strategies 1, 2 and 4.

City of Toronto Official Plan ("OP")

16Referring to the City of Toronto OP, the relevant excerpts are referred to specifically in policy 5.6 (1) and (1.1).

Growth Management Policies

17Chapter 2 outlines the City's growth management strategy. Policy 2.1(3), Chapter 2, s. 2.2 (2), 2.2.3, and 2.2.3(1)

Transportation Policies

18Maps 4 and 5 identify the Guildwood GO Station and Lake Shore East Line. He referred to s. 2.4 (4), (8), and (9)(a).

Land Use Designation Policies

19Referring to Map 23, the Subject Site is designated Mixed Use Area. He referred to s. 4.5 and 4.5(2), s. 2.3.1 of the OP which contain policies regarding development of Mixed-Use Areas adjacent to Neighbourhoods and cites specifically s. 2.3.1(3), and 2.3.1(4).

Public Realm Policies

20The OP recognizes public realm policies that emphasize the importance of providing beautiful, comfortable, safe and accessible streets, parks, open spaces and public buildings to draw people together. He referred to policies 3.1.1(1), 3.1.1(2),3.1.1(6), 3.1.1(8), 3.1.1(9), (13), (14) (15), and (18).

Built Form Policies

21The OP recognizes the importance of good urban design as an essential ingredient of city building. He referred to policies 3.1.3 (1), (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11). Section 3.1.4 of the OP recognizes Toronto is a complex city built over many decades with a diversity of uses, block, lot and building type patterns. He referred to policy 3.1.3(4), (5), (6); Policy 3.1.4 (8), (9), (10), (11), (12).

Housing Policies

22Policy 3.2.1(1) and (2) support a full range of housing in terms of form, tenure and affordability and new housing supply will be encouraged through intensification and infill .

Implementation Policies

23Policy 5.3.2(1) of the OP provides that guidelines and plans express Council policy and not part of the plan unless the plan has been specifically amended to include them.

ZONING

Former City of Scarborough West Hill Community Zoning By-law

24The Subject Site is zoned Commercial/Residential Zone by the West Hill Community Zoning By-law No. 10327, as amended and permits a wide range of office, retail, service, institutional and multi-unit residential use.

City-wide Zoning By-law 569-2013

25The Subject Site is currently not subject to Zoning By-law No. 569-2013. An updated proposed Draft ZBL is identified in Exhibit "L" to Mr. Huynh's affidavit.

City Policies

26Mr. Huynh enumerated a number of local Guidelines that set standards and master planning policies for future and current growth as follows: Kingston Road Avenues Study, Kingston Road Urban Design Guidelines, Avenues and Mid-Rise Building Guidelines, Tall Building Design Guidelines, Growing Up Guidelines, and Kingston Road Guildwood Planning Study where standards and master planning policies that were put in place by City Council and are identified as exhibits to Mr. Huynh's affidavit.

PLANNING OPINION

27It was the planning opinion of Mr. Huynh that the Revised Proposed Settlement promotes intensification, residential/mixed-use intensification, is supportive of and implements policy directions.

ANALYSIS AND FINDINGS

28The Tribunal accepts the uncontroverted affidavit evidence of Mr. David Huynh in support of the planning merits of the Revised Settlement Proposal.

29The Tribunal finds the Revised Settlement Proposal has appropriate regard for matters of provincial interest as set out in s. 2 of the Act as it will support the orderly development of safe and healthy communities, will provide a range of housing, in an appropriate location for growth, promote development that is designed to support public transit and pedestrians and is sustainable.

30The Tribunal finds that the Revised Settlement Proposal supports provincial and municipal policy directions that support intensification and infill development on underutilized sites within the built-up urban area, particularly in locations which are well-served by municipal infrastructure, including public transit.

31The Tribunal finds that the Revised Settlement Proposal will be an efficient and optimized use of the Subject Lands and will efficiently utilize existing infrastructure and community facilities. The convenient access to a range of transit options allows for maximum utilization of transit, minimizing vehicle trips while encouraging alternative forms of active transportation and promoting energy efficiency.

32The Revised Settlement Proposal proposes a density that is contemplated and promoted by the PPS and Growth Plan and the Tribunal finds that the Draft ZBL required to implement the Settlement Proposal is consistent with the PPS and conforms to the Growth Plan.

33Further, the Tribunal finds that the Revised Settlement Proposal appropriately responds to the policies of the OP, the Site and Area Specific Policies which anticipate intensifying Mixed-use areas through the promotion of a variety of land uses, range of housing types in terms of size and type and improvements to the public realm.

34The Tribunal finds that the Revised Settlement Proposal conforms with the Growth Plan for the Greater Golden Horseshoe (2019) as amended by achieving density targets and integrating land use and transportation planning objectives and conforms with the City of Toronto OP by adding additional units to the existing housing stock.

35The Tribunal further finds that the Revised Settlement Proposal, as supported by the Parties, represents good planning, and is in the public interest as it will facilitate the advancement of development and growth in an intensification and a mixed-use designated area.

INTERIM ORDER

36THE TRIBUNAL ORDERS that:

1. The above-noted appeal pursuant to subsection 34(11) of the Planning Act is allowed, in part, and the draft Zoning By-law Amendment identified as Exhibit "L" in Mr. Huynh's affidavit (the "Draft Zoning By-Law Amendment") and the proposed development of the lands in accordance with the Revised Plans identified as Exhibit "F" in the Affidavit of David Huynh, accords with the evidence presented in the written settlement hearing and is approved in principle; and,

2. The Tribunal will withhold the issuance of its Final Order contingent upon the receipt and approval of the Zoning By-Law Amendment in its final form and written confirmation from the Parties that:

a. The form and content of the Zoning By-law Amendment, that includes a Holding provision pursuant to section 36 of the Planning Act, that will be lifted when the new public street and servicing internal to the site, and any required external infrastructure, are secured in an agreement, to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning and Metrolinx;

b. The Applicant has addressed the major outstanding issues raised by the Engineering and Construction Services in their memo dated June 8, 2021, as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

c. The Applicant has conducted downstream storm sewer capacity analysis and overland flow route capacity analysis to justify the alterations to the existing storm drainage patterns as shown on the Conceptual Servicing Plan to the satisfaction of the Executive Director, Engineering and Construction Services;

d. Transportation Services has confirmed that the proposed transportation impact, parking, and loading are acceptable;

e. The Applicant has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review in their memo dated June 8, 2021 as they relate to the Zoning By-law Amendment application, to the satisfaction of the Supervisor, Tree Protection and Plan Review and the Owner has submitted a revised Landscape Plan and/or Tree Inventory and Preservation Plan Report and that Tree Preservation matters are resolved to the satisfaction of the General Manager, Parks, Forestry and Recreation;

f. The Applicant has addressed the comments from the Toronto Transit Commission in their letter dated June 1, 2021; and,

g. Metrolinx has confirmed that a commercial agreement between Metrolinx and the Applicant has been entered into that facilitates the construction of the new public streets and servicing internal to the property to the satisfaction of Metrolinx.

37The Member will remain seized to review and approve the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

38If the Parties do not submit the final draft of the Zoning By-law Amendment and provide confirmation that the contingent pre-requisites to the issuance of the Final Order set out in paragraph [36] above have been satisfied, and do not request the issuance of the Final Order by Friday, October 25, 2024, Counsel for the Applicant/Appellant and the City of Toronto 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 request for issuance of the Final Order by the Tribunal.

"Jackie Denyes"

JACKIE DENYES

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.