Danforth Eusten Holdings Inc. v. City of Toronto, 2024 CanLII 25600

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 21, 2024

CASE NO(S).:

OLT-22-004703

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

Applicant and Appellant:

Danforth Eusten Holdings Inc.

Subject:

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

Description:

To permit a 10-storey building consisting of rental and retail space

Property Address:

975 Danforth Avenue

Municipality:

City of Toronto

Reference Number:

22 146296 STE 14 OZ

OLT Case No.:

OLT-22-004703

OLT Lead Case No.:

OLT-22-004703

OLT Case Name:

Danforth Eusten Holdings Inc. v. City of Toronto

Heard

February 26, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Danforth Euston Holdings Inc.

Daniel Angelucci Michael Foderick (in absentia)

City of Toronto

Adam Ward Mark Crawford (in absentia)

Memorandum of Oral DECISION DELIVERED BY gregory j. INGRAM on FEBRUARY 26, 2024 AND interim ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns an application filed by Danforth Eusten Holdings Inc. (“Applicant / Appellant”) to amend the City’s Zoning By-law (“ZBA”) to permit a 10-storey mixed-use building with 57 residential apartment rental units, retail space on the ground floor and a community room below grade at 975 Danforth Avenue in the City of Toronto (“Subject Property”). Currently, there is a single-storey, vacant commercial building on the Subject Property.

2The Subject Property is located on Danforth Avenue in the Blake-Jones neighbourhood of Toronto. The surrounding area includes several two to three-storey commercial storefronts with some multi-storey apartment buildings. The Tribunal was also made aware of five other active development projects in the Danforth Avenue area.

3The City deemed the application complete in September of 2022. An appeal was filed by the Applicant due to the City’s failure to decide on the application within the legislative time frame pursuant to s. 34(11) of the Planning Act (“Act”) in November of 2022.

4Mediation discussions occurred between the Parties beginning in July 2023 and at its December meetings, City Council authorized City staff to support the Settlement Proposal (“Settlement”) and to attend the Tribunal Hearing where the appeal would be heard to support it.

SETTLEMENT PROPOSAL

5The Settlement resolves the appeal launched by the Applicant, and the revised ZBA before the Tribunal reflects the Settlement discussions between the Parties. The revised development concept is consistent with the revisions proposed.

6Through the mediation process, the Parties agreed on multiple changes to the original ZBA application resulting in reductions in building height, total gross floor area, density, dwelling units, and amenity space. Increases in vehicle and bicycle parking were also agreed upon. The revised ZBA is in Attachment 1 below.

LEGISLATIVE CONTEXT

7The issues that the Tribunal must address when adjudicating a ZBA appeal are whether the proposed instruments:

a) Are consistent with the Provincial Policy Statement, 2020;

b) Conform with applicable Provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019);

c) Conform with applicable Official Plans and the Zoning By-law for the City of Toronto; and

d) Represent good planning.

8The Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act and have regard to the information and materials that the City received concerning the matters under s. 2.1(2) of the Act.

HEARING AND FINDINGS

9Mike Dror, a Registered Professional Planner, and member of the Canadian Institute of Planners, was qualified by the Tribunal to provide land use planning opinion evidence and delivered a comprehensive contextual and planning rationale supporting the revised ZBA.

10As evidence in the Hearing, three documents were marked as Exhibits:

Exhibit 1: Affidavit of Mike Dror

Exhibit 2: Draft Zoning By-Law

Exhibit 3: Settlement Plans

11The draft ZBA, Mr. Dror opined, represents good planning, is in the public interest, and is consistent with, and in conformity with provincial policies, and the various City planning guidelines and policies.

12A detailed comparison between the Original Proposal and the Settlement was provided by Mr. Dror and is summarized in Exhibit 1 and labelled as Table 1- Statistical Comparison.

13In summary, he proffered that the mixed-use design benefits commercial opportunities, and increases housing options in the City with 45% of the housing units being two bedrooms or larger. He also opined that the proposed development will be serviced by a range of transportation options and public services.

14Mr. Dror recommended that the Tribunal withhold its approval of the draft ZBA in accordance with the City Council direction from December 2023 until the Tribunal has been notified by the City that the conditions in Attachment 3 have been met.

15The Tribunal also heard that the Appellant has agreed to formally withdraw their appeal of Official Plan Amendment No. 573 (OLT Case File No. OLT-22-003830) following the Settlement Hearing, should the Tribunal endorse the Settlement Proposal.

16Having reviewed all the materials submitted, heard submissions indicating support from the City Council, and the uncontested evidence of Mike Dror, the Tribunal approves the Settlement in principle based on the overall planning merits of the proposal.

17The Tribunal agrees to issue an Interim Order which will be converted to a Final Order once the Tribunal is notified by the City that all the agreed-upon conditions have been met.

ORDER

18THE TRIBUNAL ORDERS THAT:

1. the appeal by the Applicant of the Zoning By-law amendment for 975 Danforth Avenue, in the City of Toronto, is allowed, in part;

2. the draft Zoning By-law amendment in Attachment 1 in accordance with the Settlement plans and drawings in Attachment 2, is approved in principle;

3. the issuance of its Final Order is contingent upon confirmation of the City Solicitor, of the conditions in Attachment 3 being fulfilled;

4. if the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other conditions to the issuance of the Final Order set out in Attachment 3 have been satisfied, and do not request the issuance of the Final Order, four months from the issuance of this order, 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 Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event, the contingent conditions are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the appeal;

5. the Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order; and

6. the Tribunal may, as necessary, arrange for 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.

“Gregory J. Ingram”

GREGORY J. INGRAM

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 TORONTO

BY-LAW [Clerks to insert By-law number]

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2023 as 975 Danforth Avenue.

Whereas the Ontario Land Tribunal, by its Decision issued on [date] and its Order issued on [date], in respect of Tribunal File OLT-22-004703, upon hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P13, as amended, determined to amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2023 as 975 Danforth Avenue; and

Whereas the Ontario Land Tribunal has the authority pursuant to Section 34 of the Planning Act, as amended, to pass this By-law; and

The Ontario Land Tribunal Orders:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, as amended, Chapter 800 Definitions.

3. Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.1 respecting the lands outlined by heavy black lines from a zone label of CR 3.0 (c2.0; r2.5) SS2 (x2219) to a zone label of CR 3.0 (c2.0; r2.5) SS2 (x#### ) as shown on Diagram 2 attached to this By-law.

4. Zoning By-law 569-2013, as amended, is further amended by amending and replacing Article 900.11.10 Exception Number #### so that it reads:

(####) Exception CR (####)

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections:

Site Specific Provisions:

(A) On lands municipally known as 975 Danforth Avenue, if the requirements

of By-law #### are complied with, a building or structure may be

City of Toronto By-law [Clerks to insert By-law number]

constructed, used or enlarged in compliance with Regulations (B) to (O) below;

(B) Despite regulations 40.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum of [-] metres and the elevation of the highest point of the building or structure;

(C) Despite regulation 40.10.40.10(2), the permitted maximum height of a building or structure is the number in metres following the letters "HT" as shown on Diagram 3 of By-law ####;

(D) Despite regulations [40.5.40.10(3) to (8) and (C) above, the following equipment and structures may project beyond the permitted maximum height shown on Diagram 3 of By-law ####:

(i) indoor and outdoor amenity spaces and areas used to access such spaces, and equipment used for the functional operation of the building, including electrical, utility, mechanical and ventilation equipment, as well as enclosed stairwells, roof access, maintenance equipment storage, chimneys, and vents, by a maximum of 3.0 metres;

(ii) structures that enclose, screen, or cover the equipment, structures and parts of a building listed in (i) above, including a mechanical penthouse, by a maximum of 3.0 metres, if these elements are set back a minimum of 3.0 metres from the north, west and south main walls of the storey below;

(iii) elevator shafts and overruns, inclusive of the elevator machine room and other elements required for the functional operation of the building and structures that enclose, screen or cover these elements, by a maximum of 5.0 metres;

(iv) architectural features, parapets, and elements and structures

associated with a green roof, by a maximum of 3.0 metres;

(v) building maintenance units and window washing equipment, by a maximum of 3.0 metres;

(vi) planters, landscaping features, guard rails, and divider screens on a balcony and/or terrace, by a maximum of 2.5 metres;

(vii) antennae, flagpoles and satellite dishes, by a maximum of 1.5 metres; and

(viii) trellises, pergolas, and unenclosed structures providing safety or wind protection to rooftop amenity space, by a maximum of 3.0 meters;

City of Toronto By-law [Clerks to insert By-law number]

(E) Despite regulation 40.10.40.40(1), the permitted maximum gross floor area of all buildings and structures is 4,500 square metres, of which:

(i) the permitted maximum gross floor area for residential uses is 4,000 square metres;

(ii) the permitted maximum gross floor area for non-residential uses is 500 square metres;

(F) Despite regulation 40.10.40.50(1), a minimum of 230 square metres of

amenity space shall be provided, of which:

(i) a minimum of 105 square metres shall be indoor amenity space;

(ii) a minimum of 125 square metres shall be outdoor amenity space; and

(iii) no more than 25% of the outdoor component may be a green roof;

(G) Despite regulations 40.10.40.70(2) and 40.10.40.80(2), the required minimum building setbacks and minimum above-ground separation distances between main walls are as shown in metres on Diagram 3 of By-law ####;

(H) Despite Clause 40.10.40.60 and (F) above, the following elements may encroach into the required minimum building setbacks and main wall separation distances as follows:

(i) decks, porches, and balconies, by a maximum of 1.5 metres, except that no balconies are permitted along south or west main walls of the building;

(ii) terraces, guards and guardrails, railings, parapets, privacy and wind screens, landscape planters and terrace platforms to the extent of the main wall of the storey below;

(iii) canopies and awnings, by a maximum of 3.0 metres;

(iv) exterior stairs, access ramps and elevating devices, by a maximum of 1.5 metres;

(v) cladding added to the exterior surface of the main wall of a

building, by a maximum of 0.5 metres;

(vi) architectural features, such as a pilaster, decorative column,

City of Toronto By-law [Clerks to insert By-law number]

cornice, sill, belt course, or chimney breast, by a maximum of 1.5 metres;

(vii) window projections, including bay windows and box windows, by a maximum of 1.0 metres;

(viii) eaves, by a maximum of 1.0 metres;

(ix) a dormer, by a maximum of 1.0 metres; and

(x) air conditioners, satellite dishes, antennae, vents, and pipes, by a maximum of 1.0 metres;

(I) Despite regulation 200.5.10.1(1) and Table 200.5.10.1, parking spaces

must be provided in accordance with the following:

(i) A minimum of 0.0 parking spaces for each dwelling unit for residential occupants;

(ii) Parking spaces for residential occupants of the building may be provided at a maximum rate of:

(a) 0.3 for each bachelor dwelling unit up to 45 square metres and 1.0 for each bachelor dwelling unit greater than 45 square metres;

(b) 0.5 for each one bedroom dwelling unit;

(c) 0.8 for each two bedroom dwelling unit;

(d) 1.0 for each three or more bedroom dwelling unit;

(iii) A minimum of 2.0 pus 0.01 per dwelling unit for residential visitors;

(iv) Parking spaces for residential visitors of the building may be provided at a maximum rate of:

(a) 1.0 for each dwelling unit for the first five (5) dwelling units; and

(b) 0.1 for each dwelling unit for the sixth and subsequent

dwelling units;

(v) Parking spaces may be provided within a stacked parking space;

(J) Despite regulation 200.5.1.10(2), any parking spaces provided on the lot may be provided within a stacked parking space may have a minimum

City of Toronto By-law [Clerks to insert By-law number]

width of 2.2 metres and minimum length of 5.0 metres, and may be obstructed on any side, as described in regulation 200.5.1.10(2)(D), without being required to provide additional width for the obstructed sides of the parking space;

(K) Regulations 200.5.1.10(5) and (6) does not apply;

(L) Regulation 200.5.1(3) regarding drive aisle width does not apply;

(M) Regulations 200.5.1.10(2), (3) and (4) do not apply;

(N) Despite Regulations 230.5.1.10(10), both “long-term” and “short-term” bicycle parking spaces may be provided in a stacked bicycle parking space.

(O) Despite Regulation 220.5.1(2), a loading space is not required. Prevailing By-laws and Prevailing Sections: None Apply

Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order

issued on [date] in Tribunal File [-]

ATTACHMENT 2

ATTACHMENT 3

The Tribunal’s Final Order is withheld until the Tribunal has been advised that the following conditions have been met to the satisfaction of the City Solicitor:

1. The final form and content of the draft zoning by-law is to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

2. The Owner has addressed all outstanding issues raised by Engineering and Construction Services as they relate to the application to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

3. The Owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the application, to the satisfaction of the Supervisor, Tree Protection and Plan Review; and,

4. The Owner has submitted a construction management plan to the satisfaction of the General Manager, Transportation Services and the Chief Planner and Executive Director, City Planning, prior to the commencement of any shoring or excavation work, which includes the requirement for the Owner to undertake the following items in addition to the City’s standard construction management plan: 219992/557055 MTDOCS 50072878

a. Establish a construction liaison committee made up of local residents and businesses including a representative from local residents associations, to the satisfaction of the local Councillor, with the construction liaison committee to meet once every two weeks (or at longer intervals agreed between the parties at each meeting) starting at the beginning of construction, and notes/action items from those meetings to be shared with the members and the Councillor’s office in a timely way following each meeting;

b. Sweep the construction site daily and nightly, or more frequently as needed to be cleared of any construction debris and made safe;

c. to pressure wash the construction site and adjacent sidewalks, laneways and roadways weekly, or more or less frequently as needed to be cleared of any construction debris and made safe;

d. to ensure that the existing sidewalks and all pedestrian walkways have proper lighting to ensure safety and visibility at all times of the day and night;

e. to consult and communicate all construction, parking and road occupancy impacts with local businesses and residents in advance of any physical road modifications;

f. to install appropriate signage and converging mirrors where necessary to ensure that pedestrians’, cyclists’ and motorists’ safety is considered at all times;

g. to post a 24/7 contact number for the site superintendent on the construction hoarding;

h. to create a publicly accessible website with regular construction updates and post the website address on the subject site; and,

i. to allocate a minimum of 75 percent of the total surface area on the construction hoarding to artwork at the Owner’s sole cost, with the design and artist to be chosen at the Owner’s sole discretion.