Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 04, 2024

CASE NO(S).: OLT-22-004391

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Franden Holdings Ltd.

Appellant: Tony and Dom's Limited

Applicant: Doughton Residences Corp.

Subject: Proposed Official Plan Amendment

Description: To facilitate the development of a 46-storey and a 56-storey residential tower with a 4-storey podium

Reference Number: OP.20.005

Property Address: 216 and 220 Doughton Road

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-004391

OLT Lead Case No.: OLT-22-004391

OLT Case Name: Franden Holdings Ltd. v. Vaughan (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Franden Holdings Ltd.

Appellant: Tony and Dom’s Limited

Applicant: Doughton Residences Corp.

Subject: Zoning By-law Amendment

Description: To permit a high-rise residential development consisting of two 47 and 49-storey residential towers

Reference Number: Z.20.013

Property Address: 216 and 220 Doughton Road

Municipality/UT: City of Vaughan/ York Region

OLT Case No.: OLT-22-004429

OLT Lead Case No.: OLT-22-004391

Heard: January 22 to February 2, 2024 by Video Hearing (Excluding January 29, 2024)

APPEARANCES:

Parties

Counsel

Doughton Residences Corp. (“Applicant”)

Daniel Artenosi, Natalie Ast, and Rowan Barron (Student-at-law)

Franden Holdings Ltd. (“Franden” / “Appellant”)

Matthew Helfand and Leo Longo (in absentia)

Tony and Dom’s Limited (“TDL” / “Appellant”)

Grace O’Brien, and Meaghan McDermid

City of Vaughan (“City”)

Marc Kemerer, Colin Dougherty, and Candace Tashos

Regional Municipality of York (“Region”)

Not present

DECISION delivered BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION AND BACKGROUND

1The matter was before the Tribunal as a nine-day hearing related to appeals pursuant to sections 17(36) and 34(19) of the Planning Act (“Act”) (collectively, the “Appeals”) following the approval of Official Plan Amendment 77 (“OPA”) and Zoning By-law Amendment No. 155-2022 (“ZBA”), by the City of Vaughan (“City”) and the Regional Municipality of York (“Region”) respectively.

2The properties which are the subject of the Appeals are located at municipal address 216 and 220 Doughton Road (“216-220” / “Subject Lands”). The OPA and ZBA were approved by the City and Region in June and August 2022 respectively, on a site-specific basis. The development approval facilitates the construction of a proposed residential development consisting of 46 and 52-storey towers and townhouses, with a total of 1,145 residential units, integrated into a four-storey podium on the Subject Lands with a stratified North-South (“N-S”) public local road allowing parking below grade (“Proposal”).

3The City and Applicant have also agreed to a design implementing a new at-grade community centre totalling 470 square metres (“m²”) of space, along with local off-site Vaughan Metropolitan Centre (“VMC”) parkland improvements for a total attributed value of $9,000,000 (“Community Benefits Package”). The value attributed to the Proposal and secured as part of a density negotiation pursuant to section 37 of the Act as permitted at that time, was ultimately approved by the City in June 2022 and requires that the owner enter into an agreement to further secure the Community Benefits Package, which may be registered on title and bind successors and assigns.

4A separate Draft Plan of Sub-division (“DPS”) was submitted by the Applicant in December 2021, followed by an interim Site Plan Application (“SPA”) in May 2022, however, neither the DPS nor the interim SPA are presently matters before the Tribunal.

5The Appellant Parties, include Franden, as the owners of property municipally known as 215 Doughton Road (“215”), located to the south-east of 216-220 and TDL, as the owners of the property municipally known as 190 Doughton Road (“190”) immediately abutting 216-220 to the east. Both Franden and TDL filed their Appeals of the ZBA and OPA following City and Region approvals respectively.

6The Appellants generally take the position that the proposed stratified N-S public local road will impair/restrict their own site development potential, with differing opinions related to their own potential development designs, densities and land use. They are seeking a decision from the Tribunal which will allow for an alternative east-west alignment of the N-S public local road, while at the same time expressing their support of an amended OPA and ZBA. There are no concerns with the height, massing and scale of the proposed development given the subject site’s location in a Regional Centre, Urban Growth Area, and Major Transportation Service Area (“MTSA”) in the VMC (Regional Centre). However, they are also recommending a redesigned community centre concept.

7The Applicant and City generally take the position that changes to the stratified N-S public local road would adversely impact the design of the community centre space, and ultimately negate the Community Benefits Package, therefore, jeopardizing the Proposal as approved by the City and Region.

8The Tribunal notes that there are no proposals currently before the City from either of the Appellants.

LEGISLATIVE FRAMEWORK

9In deciding on the matters before it, the Tribunal must be satisfied that the Proposal is representative of good planning and in the public interest. The proposed planning instruments must be found to:

• Have appropriate regard for the matters of Provincial interest in section 2 of the Act;
• Be consistent with the Provincial Policy Statement, 2020 (“PPS”);
• Conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019 (“GP”);
• Conform with the City of Vaughan Official Plan 2010 (Consolidated in 2020) (“VOP”);
• Conform with the Vaughan Metropolitan Centre Secondary Plan 2020 (“VMCSP”);
• Conform with the York Region Official Plans of 2010 and 2022 (“YROP 2010” and “YROP 2022”); and,
• Have regard for recent Bill 150 requirements.

HEARING EXHIBITS

10The following Exhibits were considered for the purposes of the Hearing:

1. A) Hearing Plan, and 1. B) Procedural Order and Issues List;
2. Joint Document Books Volume 1 and Volume 2;
3. Appellants’ Joint Document Book (January 15, 2024);
4. Compendium of Witness Statements;
5. A) Applicant’s Visual Evidence, and 5. B) Applicant’s Photos (January 8, 2024);
6. Appellant (TDL) Visual Evidence (January 8, 2024);
7. Appellant (Franden) Visual Evidence (January 8, 2024);
8. Appellant (Franden) March 2023, Planning Justification Report -170 Maplecrete Road (Separate Application);
9. Appellant (TDL) Vaughan Metropolitan Centre Transportation Master Plan (“VMC-TMP”) Update-(November 2, 2021);
10. Appellant (TDL) Vaughan Metropolitan Centre, Sub-Committee - Post Meeting Minutes (November 2, 2021);
11. WSP Canada Inc. (“WSP”) email - September 2, 2021;
12. Amended - Municipal Class Environmental Act, 2023 (“MCEA”);
13. Staff Report – 1834371 Ontario Inc.- Liberty Development Site (“Liberty”)
14. Post-Meeting Minutes of the City’s Committee of the Whole -January 23, 2024;
15. 7069 Concept Plan-September 8, 2015;
16. Vaughan Metropolitan Centre (“VMC”) Update dated January 21, 2024;
17. Weston Consulting Letter - January 30, 2024;
18. Weston Consulting Cover Letter - February 21, 2017;
19. Mr. Caricari’s email on behalf of TDL dated June 1, 2022;
20. Doughton Book of Authorities;
21. City’s reference to OLT case No OLT-21-002260;
22. TDL Book of Authorities; and,
23. Mr. Caricari’s email regarding the Liberty proposal, dated November 19, 2022.

HEARING WITNESS LIST

11The Witnesses qualified by the Tribunal through their respective sworn Affidavits and Acknowledgements of Experts’ Duty, in order of their appearance during the Hearing included the following:

1. David McKay, a Registered Professional Planner, Partner and Vice President with MacNaughton Hermsen Britton Clarkson Planning Limited (“MHBC”), was qualified to provide expert land-use planning opinion evidence, on behalf of the Applicant having direct carriage of the Application since August 2018;
2. Timothy Arnott, a Registered Professional Planner, Transportation Engineer, and Principal of BA Consulting Group Ltd. (“BA Group”), was qualified to provide expert transportation planning and engineering opinion evidence, on behalf of the Applicant, having carriage of the matter since July 2023;
3. Michael Linton, a Registered Professional Engineer, and Associate with C.F. Crozier & Associates Inc. (“Crozier”), was qualified to provide expert opinion as a transportation engineer and transportation planning, on behalf of Franden-215, having carriage of the matter since September 2023. Crozier was retained in December 2022;
4. Katie Pandey, a Registered Professional Planner and Associate at Weston Consulting (“Weston”), was qualified to provide land-use planning opinion evidence, also on behalf of Franden-215, having had carriage of the matter since August 2023; and,
5. Joe Caricari, an Architect registered in the Province of Ontario, and co-Founder and Partner of Caricari Lee Architects Inc., was qualified as an expert witness in architectural matters, on behalf of TDL-190, and initially retained in December 2021.

Uncontested Evidence

12Mr. McKay began his introductory testimony outlining the history of the Subject Lands, neighbouring projects and properties to the north and to the south-east of 216-220, and described the evolution of the Applicant’s proposal as referenced in his extensive witness statement (Exhibit 4, Tab 1-A, beginning at para. 4.0).

13Mr. McKay noted that the proposal was initially submitted for consideration in April 2019, through the City’s pre-application process and by June 2020, evolved into a proposal for 47 and 49-storey towers, totalling approximately 76,000 m², with 1,151 residential units, and a proposed density of 10.2 Floor Space Index (“FSI”). At that time, the new community centre space was proposed to be 350 m² fronting along the south-west corner of Doughton Road, and within the initially proposed built-form of the Subject Lands. By May 2021, the proposed N-S road evolved into a configuration along the shared, common property line between 216-220 and 190 with a 22 m right-of-way (“ROW”), that shortly thereafter, was reduced to a 20 m ROW at the City’s direction.

14These revisions advanced with the Applicant, and the N-S local road design continued its evolution with a connection to the north of the Subject Lands to the recently approved Liberty proposal along Highway 7. Liberty’s portion of the N-S road connects to Highway 7 and shifted to the east during its evolution, resulting in the City’s desired alignment change along the 216-220 and 190 property line, and south, affecting 215.

15These modifications were submitted in the December 2021, DPS by the Applicant, which by this point was defined as a newly proposed, stratified N-S public local road, the majority of which was mostly configured on 216-220 (88 percent), with the balance on 190 (12 percent) at 190’s southwest corner of the property. This design represented the preferred WSP - Option 3 alignment identified by planning staff in the VMC-TMP update, first observed at the Southeast Quadrant Landowners Meeting (“VMC-SQLM”) in August 2021, (Exhibit 2, Tab F-3), followed by ongoing consultations and through subsequent discussions with City staff.

16By March 2022, the updated DPS and architectural plans were submitted with proposed interim and ultimate conditions. As previously mentioned, the final Council approval of the OPA and ZBA took place in June 2022.

17Mr. McKay summarized his review by noting that these changes were the result of extensive public consultation, studies and iterative discussions and analysis with the Applicant and other landowners during the consultation process including the VMC-SQLM and the period following this consultation. He added that the approvals contain a renewal agreement supporting the ongoing naturalization of the Black Creek Urban Terrace, and the construction of “a 17 m wide pedestrian mews with public access easement located on the Subject Lands that is planned to link to the Black Creek Greenway, in accordance with the VMCSP” (Exhibit 2, Tab F-8 page 992) as part of the approved Proposal.

ISSUES - TRANSPORTATION AND LAND USE PLANNING

Stratified North-South Public Local Road Alignment (WSP Option 3)

18This issue was clearly the primary reason for the Appeals and absorbed the majority of time during the Hearing. Much of the focus was related to how the WSP Option 3 stratified N-S public local road alignment was selected as the preferred Option by both the City and the Applicant. Additionally, very detailed analysis from witnesses was provided through their written statements and oral testimony, respectively, assessing the proposed roadway’s impact on the development potential of the Appellants’ neighbouring properties.

Applicant Witness (Transportation)

19Mr. Arnott outlined his own history in the VMC over a career spanning 30 years. This background included consulting with a variety of projects such as: 3201 Highway 7; 1890 Highway 7; 777 Weston Road; 2951 Highway 7 and 180 Maplecrete Road; 2901 Highway 7; and 7234 Jane Street among other projects in the vicinity of the Proposal.

20Mr. Arnott’s testimony proceeded in relating to the road alignment’s decision timing, process, impact and rationale, as well as the evolution of the OPA and ZBA.

21Mr. Arnott opined that the proposal is consistent with the PPS, conforms with the GP and both the YROP 2010 and YROP 2020. Part of the basis for his opinion resulted from his review of the NextTrans Consulting Engineers (“NextTrans”) transportation impact study (“TIS”) updates conducted from April 2020 to April 2021 (Exhibit 2, Tabs D-6 and D-7). The result of this ongoing study led to the WSP draft submission presented to the VMC-SQLM of August 2021. Additionally, he noted that his opinions are based on his review and careful analysis of the OPA and ZBA, the BDP Quadrangle Architects’ (“BDP”) plans, and any available relevant engineering information provided to him along with Mr. McKay’s expert planning analysis. Finally, he outlined that he had also reviewed the VMC Transportation Master Plan (“VMC-TMP”) update, the York Region Transportation Master Plan 2016 (“YR-TMP”) and had carefully reviewed the VMCSP objectives and guidelines.

22Mr. Arnott referenced the location of the Subject Lands as being well served by area amenities, services, and transportation/transit options including its proximity to:

a) Toronto Transit Commission (“TTC”) Line 1, the VMC Bus Terminal (York Region Transit), and local Bus Stops at Jane Street and Doughton Road;

b) The VMC Urban Growth Centre;

c) The Protected Major Transit Station Area (“PMTSA 67” VMC Subway Station) and adjacent to PMTSA 56 (Creditstone BRT Station); and,

d) Current vehicular access to Doughton Road.

23Mr. Arnott also opined that while the Proposal is:

predicated on the development of a component of the public Local Street, neither OPA 77 nor By-law 155-2022 determine or secure the specific alignment of the street, which, as stated, will occur through the [DPS] process.

24He further opined that it was very common for the City to require the implementation of a detailed road via the DPS application process and that in this instance, it is also appropriate to expect that all elements of the implementation of the proposed stratified N-S public local road would involve further detailed review by the City and other experts.

25Mr. Arnott asserted that the OPA and ZBA do not fix road alignments, but that a DPS and SPA are the more appropriate instruments in such circumstances, and that the careful and detailed analysis that will follow through the DPS and SPA application process will address the final contouring and offsets at Doughton Road, which is also deemed a local road. This contouring by design is expected to eventually connect south as far as Peelar Road with minor modifications as any future re-development applications on affected properties move forward to the east and to the south of the Subject Lands.

26Mr. Arnott stated that the ZBA creates a site-specific envelope which is measured against the limits relating to height and density and that this stratified N-S public local road is appropriately identified as a public local road. By this analysis, the road would not be subject to an Environmental Assessment requirement, as opposed to the requirements of a collector road and secured through the DPS process. This point was reinforced by Mr. Arnott, during Franden Counsel’s cross-examination and is referenced in the VMCSP Schedule C Street Network (Exhibit 2, Tab C-2, pg. 1471). Also, during cross-examination from TDL Counsel, Mr. Arnott notes that the VMC-SQLM deck (Exhibit 2, F-3, pg.18) identified that aligning roads with property boundaries, requiring equity among them in terms of property impacts. He also opined that for its implementation, it relies on goodwill between landowners to reach agreements, and noted that in this instance, he was not privy to conversations between the Applicant and Appellants.

27Mr. Arnott opined that the BDP road alignment design as revised in March 2022, shown below as a “horizontal alignment” (Exhibit 5A Visuals pg.12) clearly proposes and establishes the roadway starting point from the north Liberty connection, and shows the temporary cul-de-sac, fire route, general landscaped area, and directly makes evident the City’s preferred stratified N-S public local road, guided by the WSP Option 3 proposed alignment, as incorporated into the proposal below:

28In reference to this “horizontal alignment” image, Mr. Arnott described in greater detail that the N-S public local road which commences at the north end of 216-220 (right-side-above), extends to the south (to-the-left) for approximately 31 m, and “gradually curves to the east where it adopts a reverse-curve alignment” as it approaches Doughton Road. This easterly road portion (near-bottom-of-image) extends on to 190 and represents a distance of approximately 8 m at the southwest corner of the 190 property. He also references that the while the SPA application is not a matter before the Tribunal, the final Site Plan Condition drawing denoting the City-preferred evolution of the Proposal’s road alignment can be viewed on the next page (Exhibit 5A Visuals pg.13).

29Mr. Arnott provided further detail regarding the interim stratified N-S public local road design, noting that there was a total of four-level below grade of underground vehicular and bicycle parking and that the proposed temporary cul-de-sac, would directly connect to the north Liberty roadway as both developments progressed. He asserted that the Holding provision (“H”) and relevant conditions would apply extensively as referenced in the Planning Staff Report to Council on June 6, 2022 (“PSR”) (Exhibit 2, Tab F-8 pages 985-990) and that the DPS and SPA applications would evolve as outlined in the NextTrans analysis, adding that the road further to the south would also extend “incrementally through the development review process on a site-by-site basis.” He supplemented his position on the VMCSP’s objectives in his witness statement (Exhibit 4, TAB 1A para. 5.16 - 5.23), where he addresses the comprehensive review process and the unacceptability of “offset intersections or discontinuities.” He also emphasizes here that the PSR’s final recommendations in their June 7, 2022, report to Council clearly support the “preferred alignment” ( WSP Option 3) as proposed and approved in the OPA and ZBA.

30Mr. Arnott asserted that the WSP analysis of the VMCSP’s Jane and Highway 7 road network plan is still an ongoing process. He reviewed at considerable length VMCSP section 4.3.1 (Exhibit 2, Tab C-2 pg.1409) as it applies to the approved OPA and ZBA, and he identified this as one of the defining reasons in support of his opinion that WSP Option 3 fulfills the local road objectives, as referenced below:

Street Network

4.3.1 A fine-grain grid of streets is fundamental to this plan. Schedule C identifies the public street network planned for the VMC. It is intended to optimize connectivity while providing flexibility for a range of development scenarios. Minor modifications to the location and alignment of planned streets are permitted without amendment to this plan, provided the intersections in Schedule C that include a major or minor collector street or arterial street are maintained in their general location. Generally, local streets shall straddle property lines where they appear on Schedule C to be located between two properties, to the satisfaction of the City.

The precise location, alignment and design of the streets and mews identified on Schedule C shall be determined by the City through a municipal class Environmental Assessment and/or the development application process, as appropriate, in consultation with the Region of York, with consideration for matters such as the equitable distribution of costs and land consumption, development phasing and traffic management and access requirements.

[Emphasis added]

31Mr. Arnott furthered his testimony with a more detailed analysis of the WSP August 2021, report and reviewed the three primary roadway options presented at that time. While he carefully reviewed and summarized WSP’s Option 1 and Option 2 at the Hearing, he concluded that he agreed that WSP’s Option 3 was the preferred alignment alternative, by both the Applicant and City, but that it was also his preferred choice.

32During cross-examination, Mr. Arnott acknowledged that WSP’s Option 1 and Option 2 were technically feasible alternatives. He noted that WSP’s Option 1, which was the preferred Appellants’ alternative (“Option C”) would likely result in significant concerns with road continuity, resulting in offsets, which he could not support, at the intersections of Doughton Road, Freshway Drive, Interchange Way, and south to Peelar Road over time.

33Mr. Arnott further opined that the Appellants’ preferred Option C would also very likely create issues at the B1 level below-grade (Exhibit 4, TAB 5A, pg. 47) of the approved BDP design. He asserted that the Appellants’ Option C does not take into consideration the stratified road grading differential which declines approximately four percent to five percent from north to south, requiring, at a minimum, new stormwater and watermain engineering analysis related to clearances below grade among other disciplines.

34In his Reply witness statement (Exhibit 4, TAB 2B, para. 2.4 i ), Mr. Arnott notes in greater detail as follows:

[Option C] does not appear to include any consideration of the fact that the new north-south public road is to be developed as a stratified road, with private development to be developed below the City’s right of way while also accommodating new public servicing infrastructure. In particular [Option C] does not consider how new public infrastructure requirements would be accommodate[d] within a stratified road, having consideration for the following detailed information:

a. Limiting road grades along the N-S Local Street;

b. the requirement to accommodate a new storm sewer and watermain within the stratified [ROW] associated with the N-S Local Street;

c. the requirement to achieve minimum clearances between such municipal services and the surface grades of the N-S Local Street; and,

d. the required clearances between such municipal services and the below grade elevations of the B1 and P1 levels of the underground levels of the Proposed Development.

35Mr. Arnott added in oral testimony that in addition to these concerns, Option C which shifts the proposed road to the west, requires additional expert impact analysis from a variety of disciplines including but not limited to the following:

• Strata analysis;
• Watermain supply;
• Natural Gas supply;
• Stormwater and Hydrogeological engineering;
• Civil, Mechanical and Structural engineering; and,
• Detailed Architectural, Planning, Streetscape, Landscape and further Site Plan review and redesign.

36Mr. Arnott remained adamant that these among other disciplines would have to be further engaged or re-engaged, to assess the Appellants’ Option C proposed redesign. He reiterated that where the Liberty development ties in with the north-east corner of 216-220 and is anticipated to run through in a north-south direction, the road is almost entirely within the easterly length of the Subject Lands, bearing approximately 88 percent of its dimensions. The slight contour east to the 190 property represented an approximate portion of 12 percent of the length of the proposed road connecting at Doughton Road. He also concurred with the City’s preference regarding the 20 m ROW width which he considered appropriate in this circumstance. He further agreed with the City’s desire to implement a 3 m road widening along Doughton Road, allowing for a 26 m ROW width, which is incorporated into the DPS and SPA applications, and ultimately supports further growth in the Southeast Quadrant.

37Mr. Arnott’s extensive testimony relating to the OPA and ZBA can be summarized as being consistent with the support of the City’s transportation and planning staff, among other agencies. His stated that his preference with the approved stratified N-S public local road allows for continuity, generally avoiding negatively impactful offsets further to the south and may also be subject to minor modifications resulting from any new site-specific applications at 190 or 215 that are not currently proposed to the City.

38Regarding the direct or indirect impact on 215, Mr. Arnott reiterated that City guidelines and policies will further adjust to any development application and will result in conceptual alignment adjustments in greater detail tying into the Applicant’s DPS and interim SPA applications. He further opined that in the absence of any redevelopment applications at 190 and/or 215, it was premature to fully assess to what extent any roadway modifications may be required. He also made numerous references to the fact that he generally concurs with Mr. McKay’s planning analysis relating to the conceptual designs submitted by BDP for both 215 and 190 which follow below in Mr. McKay’s testimony, as it relates to the proposed roadway alignment. He asserted “that OPA 77 does not direct how the final alignment will be determined on lands south of Doughton Road, which are not themselves the subject of OPA 77.”

39In summary, Mr. Arnott concurred with the City’s decision to mandate the public roadway from the beginning of the process, and with the more contiguous plan represented by the City-preferred WSP Option 3. He asserted that it represents a fair and balanced approach, reiterating that minor modifications can and will be further addressed. He concurs with the PSR’s conclusion that this Option “best [meets] the policies and objectives of the VMCSP in terms of fairness, and [equitability] of straddling local streets along property lines where possible” (Exhibit 2, F-8, pg. 979). He reconfirmed that as other proposals for redevelopment evolve to the east and south, so to will the new road. Worth noting, he also reminded the Tribunal, that the re-alignment with the Liberty project did not go through a process of public consultation, in contrast to the Subject Lands in this matter.

40Mr. Arnott concluded that overall, the alignment follows the policies of the VMCSP and represents the principles of good transportation planning. He maintained confidence in his view that the requisite DPS and SPA applications will secure a more precise result for the stratified N-S public local road as it impacts the Subject Lands presently, and will guide the general direction of the roadway in a continuous manner further to the south of the Proposal.

41Finally, Mr. Arnott referred to his witness statement (Exhibit 4, Tab 2-A, paras 6.10 to 6.38) where he expanded in detail related to the Issues List referenced in the Hearing Plan and completed his testimony with the following conclusion that the Application: Has regard to matters of provincial interest; Is consistent with the PPS; Conforms with the Growth Plan; Conforms with the 2010 YROP and the 2022 YROP; Conforms with the VOP; Conforms with the VMCSP, as proposed to be amended; and, represents good transportation planning and is in the public interest. He recommends that the Tribunal dismiss the appeals and to allow OPA 77 and By-law No. 155-2022 to come into full force and effect.

Planning Evidence

Applicant Witness (Land Use Planning)

42Mr. McKay’s association with planning applications in the VMC includes, but is not limited to the following:

• Involvement with the VMC Secondary Plan appeals and mediation thereto (2012 to 2017) on behalf of SmartCentres;
• KPMG Tower (100 New Park Place);
• PWC / YMCA Tower (200 Apple Mill Road);
• Transit City Towers 1, 2 and 3 (5 Buttermill Avenue, 898 Portage Parkway and 950 Portage Parkway);
• 175 Millway Avenue (East Block Phase 1 and Phase 2)
• 2901 Highway 7;
• 2951 Highway 7 and 180 Maplecrete Road;
• ArtWalk Condominiums (101 Edgeley Boulevard); and
• Park Place Condominiums (7 Commerce Street).

43Mr. McKay resumed his testimony by turning to the legislative framework, providing some important background information about the surrounding community, and outlined the formal planning submissions made on behalf of the Applicant.

44Regarding the site-specific details, Mr. McKay opined that the ZBA Schedule 1 (Exhibit 2, Tab F-12) confirmed the City’s support of the Application with C9 permission, the H provision, a DPS requirement for the stratified N-S local road agreement, and a community centre space, as agreed to, with local park improvements and the specified value in the Community Benefits Package. He reiterated that images are essentially an illustration with no other determinative effect, as all requirements of the ZBA are subject to the very detailed H provision. This includes examples such as setbacks, step backs, precise ROW measurements and stressed that all of the H provision requirements will be addressed in the DPS application process. He asserted that this process will be subject to future public meetings and consultations, and full City Council review and approval, which is very common in the VMC. He also testified that the SPA application comes before City Council and public submissions are permitted, consistent with policies of the City, and that Minor Variance applications may also follow as permitted and if deemed necessary

The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

45Mr. McKay opined both in his witness statement (Exhibit 4,Tab 1-A, para. 6.3) and in testimony that the Proposal has appropriate regard for s.2 of the Act, and specifically highlighted the following subsections:

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(g) the minimization of waste;

(h) the orderly development of safe and healthy communities;

(m) the co-ordination of planning activities of public bodies;

(p) the appropriate location of growth and development

(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to Pedestrians; and,

(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

Provincial Policy Statement (“PPS”)

46Mr. McKay stated that the Proposal maintains consistency with the PPS, in that it meets the MTSA’ s planning objectives, optimizes the potential of the Subject Lands, adheres to the VMCSP’s guidelines, is an efficient use of land, effectively balancing policy, design, engineering, and architecture, and was ultimately approved by the City and Region following a comprehensive public process.

47Mr. McKay made reference to PPS policy 1.1.1 g): “ensuring that necessary infrastructure and public service facilities are or will be available to meet current and projected needs;” and, opined that the Community Benefits Package, the DPS and SPA applications will all serve to fulfill this important policy objective.

48Mr. McKay further emphasized the importance of PPS policy 1.1.3.4: “Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety;” whereby he asserted that the approved Proposal fully achieves this objective and referenced, by way of example, the fact that the road was originally private, and appropriately evolved into a public local road.

49Mr. McKay concluded that the Proposal successfully achieves “the efficient development of underutilized lands within the existing urban area of the [City], in an area targeted for significant growth” (Exhibit 4,Tab 1-A, para. 6.4).

Growth Plan (“GP”)

50Mr. McKay stated that the Subject Lands are subject to the GP and are specifically identified within an Urban Growth Centre and are within a Major Transit Station Area (“MTSA”) as defined by the GP. More specifically, he opined that the Proposal conforms to the GP, “in that [it] provide[s] for a complete community with a high-quality, transit-supportive built form, providing for a range of housing options and unit sizes” and the Proposal conforms with the Urban Growth Centre objectives and the MTSA where intensification is promoted. He reiterated that the compact built form is an efficient use of land, and “supports the optimization of land use and infrastructure through the proposed intensification,” and is supportive of the “City’s intensification vision, and will allow for additional housing options including supporting growth in close proximity to existing services, helping to achieve a complete community”(Exhibit 4,Tab 1-A, paras 6.5-6.6).

York Region Official Plan 2010 and 2022 (“YROP 2010” and “YROP 2022”)

51Mr. McKay opined that OPA 77, as approved, allows for a significant development of residential units that are supportive of transit, along with encouraging a meaningful range of housing types, including one, two and three-bedroom, pedestrian-friendly options that are readily accessible, close to amenities with ample parking and easy access to local, collector and arterial roadways.

52Mr. McKay outlined that the site-specific OPA 77 approved by the Region on August 16, 2022, conforms with the YROP 2010, and to the Ministry of Municipal Affairs and Housing (“MMAH) Ministerial approval of the YROP 2022. Mr. McKay further opined that notwithstanding more recent changes to this by MMAH, the Proposal continues to conform with the YROP 2022, although not determinative in this instance. The Proposal is still in conformity with its proximity to the “Urban Area” and within a “Regional Centre” close to previously referenced transit and transportation corridors.

City of Vaughan Official Plan (“VOP”)

53Mr. McKay referenced his witness statement further to expand on the Proposal’s conformity with the VOP, (para. 6.10) “by providing new housing units within the urban built boundary, contributing to the achievement of the City’s population targets. Further, the proposal will contribute to the City’s goal of intensification areas accommodating 45 percent of the City’s urban growth to 2031.”

54Mr. McKay opined that by accessing existing municipal infrastructure and other services, the Proposal is an efficient form of land use, with accessibility and network connectivity, making better land use of underutilized property, and is very much in keeping with the objectives and vision of the VOP.

Vaughan Metropolitan Centre Secondary Plan (“VMCSP”);

55In a similar fashion, Mr. McKay reaffirmed that the Proposal is also in keeping with the planned objectives within the VMC and highlighted its regard to the VMCSP’s residential density objectives, with a range of housing unit options achieving relative population targets, in close proximity to a variety of central transit alternatives within existing and planned infrastructure improvements. He further referenced the VMCSP’s Schedule 13 in his witness statement to provide greater clarity in this regard (Exhibit 2, C-2).

56Mr. McKay referenced his Planning Justification Reports previously submitted in support of the Proposal at the City and Region in April 2020 and April 2021 (collectively the “PJRs”) (Exhibit 2, D-3 and D-4). Based on these PJRs and his oral testimony he summarized that the planning rationale exists for the Tribunal to refuse the Appeals, and allow OPA 77, and ZBA 155-2022 to come into effect, as approved by the City and the Region respectively.

Community Benefits Package (“section 37 Agreement”)

57Mr. McKay opined in his witness statement regarding the City’s approval of this element of the Proposal as follows:

• As approved, By-law 155-2022 secures an in-kind community benefits package in exchange for the height and density of development permitted thereunder, which is comprised of the 470 sq m of community space at the southeast corner of the building as well as off-site VMC park enhancements for a total value of $9,000,000.00 … By-law 155-2022 requires 216-220 Doughton Road that the owner enter into an agreement to further secure the Community Benefits Package, which may be registered on title and bind successors and assigns (the “Section 37 Agreement”).
• …the former Section 37 provisions in the Planning Act provided the legislative basis for By-law 155-2022 to secure the Community Benefits Package and the requirement for the owner and the City to enter into the Section 37 Agreement. The former Section 37 provisions in the Planning Act have since been replaced with a new Section 37 framework that authorizes the City to enact a by-law requiring certain developments to pay a Community Benefits Charge (a “CBC”) at the time of building permit issuance. In contrast to the former Section 37 provisions upon which the Community Benefits Package is secured in By-law 155-2022, a CBC is limited to 4% of the value of the land; and,
• The City enacted its CBC By-law No. 201-2022 on September 14, 2022 (the “CBC By-law”). In keeping with the new Section 37 provisions in the Planning Act, the CBC is limited to 4% of the value of the lands at the time of building permit issuance. I am advised and verily believe that while the new Section 37 provisions and the CBC By-law permit an applicant to provide an in-kind community benefit if accepted by the City, neither Section 37 nor the CBC By-law authorize the City to require an in-kind contribution. Any in-kind contribution to be secured is a voluntary arrangement, and the value of the contribution is offset against the CBC Charge that is payable at the time of the building permit issuance. In all cases, the maximum CBC payable for a development is limited to 4% of the value of the lands.

WSP Option 3 Road Alignment and Redevelopment at 190 and 215

58Regarding WSP Option 3, Mr. McKay provided his planning expertise at the Hearing by firstly expressing support for Mr. Arnott’s written and oral witness evidence. He asserted that his planning rationale for the adoption and relevance of the roadway, as approved, is consistent with Mr. Arnott’s extensive analysis above, and confirmed in his testimony that from a land use planning perspective, he was fully supportive of WSP Option 3, as approved.

59Mr. McKay supplemented Mr. Arnott’s written and oral evidence by directly addressing the Appellants’ claims that there is an adverse potential redevelopment impact at 190 and 215, and referenced BDP’s schematic architectural designs which were retained by the Applicant for review by the Tribunal (Exhibit 5A, pg. 52).

60Mr. McKay expanded on the fact that the current potential impact of WSP Option- 3, effectively meets the VMCSP guidelines as they impact 190 and 215, and that the stratified N-S public local road in the below “horizontal-alignment” graphic shows that building heights, densities and massing can all be achieved with the proposed 20 m ROW as approved by the City at both neighbouring sites.

61The diagram below also shows that a 4.5 FSI is achievable on both 190 and 215, allowing for a nine-storey mid-rise building with 150 residential units at 190, and a larger 25-storey building with six and 12-storey graduated podiums/towers totalling approximately 400 residential units. He summarized that each application scenario would require a site-specific ZBA application.

62Mr. McKay opined that while the precise and final location of the stratified N-S public local road will be determined by the DPS and SPA application process in relation to 216-220, it is clear that as proposed, there is no negative or adverse impact on current site criteria relating to 190 and 215. He asserted further that despite the fact that there are still no current site-specific applications before the City on behalf of the Appellants, with this evidence from BDP, these densities are achievable without OPA applications. He stated that any site-specific densities sought by 190 and 215 that are above the stipulated VMCSP guidelines could be achieved with City and Region approvals following application submissions. He also stated that there was nothing preventing the Appellants from seeking this further relief from the City and Region, and encouraged the Appellants to either pursue the additional heights and densities, or perhaps consider other alternatives such as consolidation with neighbouring landowners.

63Mr. McKay also outlined that the Liberty property which directly abuts 216-220 and 190 from the north of both properties, was required to shift the proposed N-S local road on the Liberty property to the east, caused, in part, by the consolidation of the Subject Lands in this matter as both redevelopment concepts evolved.

64Mr. McKay reconfirmed that it was with the encouragement and support from the City, and at the direction of the City staff, that the City’s preferred WSP Option 3 roadway form part of the revised plans. This also incorporated the final Community Benefits Package. As a result, what followed was the submission of the preliminary DPS application in December 2021, and the interim SPA application, submitted in May 2022.

65Regarding the DPS application, Mr. McKay also referenced the VMCSP as follows (Exhibit 2, Tab C-2, para. 10.3.1):

• 10.3.1 To secure the related infrastructure improvements and community facilities required, all new development in the VMC that requires the conveyance of land for streets, parks and/ or other public facilities, as part of its initial development application process, generally shall proceed by way of the subdivision approval process. As per Policy 10.2.6(b), where the City and an applicant agree that a plan of subdivision is not required for an initial phase of development, the City may permit a street to be conveyed through the rezoning and/or site plan approval process. Further, the conveyance of Mews streets to the City, for the purpose of public walkways, may proceed through the rezoning or site plan process, if determined appropriate by the City.

66Mr. McKay described how consultations following VMC-SQLM in August 2021 (Exhibit 2, Tab F-2) resulted in the revised Proposal modified to include a redesigned, larger community centre concept totalling 470 m² (approximately 5000 square feet) which culminated in the final design phase of the Proposal. As approved, the Proposal provided a more pronounced street-level design allowing a rather unique façade element that projected beyond the previously designed building envelope, in an effort to create a more inviting public impression. It was identified at the outset of the Hearing that this community centre is the first of its kind, approved in the VMC.

67The Tribunal notes that Counsel for the City was present throughout the testimony of Mr. Arnott and Mr. McKay, and submitted its full support of the expert witness statements both in their respective Affidavits and in their oral testimony. Counsel limited their co-Examinations-in-Chief in each instance to assist the Tribunal with clarifications of fact, the requisite public consultation process, and the basis for their approval of the Proposal. The City did not provide any witness statements or witness testimony and relied entirely on the expert witness statements and oral testimony of the Applicant.

68In particular, Counsel for the City identified during its Co-Examinations-in-Chief, that ongoing iterative meetings and discussions occurred with the Applicant throughout the evolution of the Proposal. Furthermore, in testimony from Mr. McKay, it was reconfirmed that the result of this and the broader community consultation involving the Proposal, and neighbouring applications over the course of several years, culminated in City Council’s ultimate support of the site-specific OPA and ZBA, with WSP Option 3 as the City’s preferred stratified N-S public local road alignment and the proposed 20m ROW. Further emphasis was also given to how the guidelines prescribed in the VMCSP s.4.3.1 guided the City’s final decision.

69Counsel for the City also focussed its questions around the importance of the impact of the new community centre and the implications of a decision requiring its redesign. Mr. McKay testified that a decision to require a redesign of the roadway shifting it to the west, would ultimately truncate the community centre space, and therefore jeopardize the Community Benefits Package. These additional questions of Mr. McKay clarified the rationale behind the City’s preferred roadway alignment and the Proposal’s architectural design. He also provided further clarity around the public consultation process and the importance of the Community Benefits Package to the City, further referencing the naturalization of the Black Creek Urban Terrace, and the construction of “a 17 m wide pedestrian mews with public access easement located on the Subject Lands that is planned to link to the Black Creek Greenway,” as part of local park improvements.

70During cross-examination, Mr. McKay emphasized that the Appellants’ impact analysis on 190 and 215, appeared to be focused on the maximization of density, rather than the more appropriate planning reference of optimization. He asserted that it is “guesswork” to assess development potential of these properties fully and accurately in the absence of planning applications, and that “speculative” schematics do not allow for the usual planning rigour necessary. He reiterated that based on VMCSP guidelines, 190 and 215 could comfortably achieve the density targets as outlined in the BDP analysis above. He coupled this with his view that achieving the upper range of FSI, heights and final built form could only occur with more detailed redevelopment plans. He re-emphasized that additional densities were feasible through a comprehensive application process, and again noted that consolidation alternatives with neighbouring landowners could/should also be given consideration.

71During further cross-examination, Mr. McKay did not disagree with the perception that the Proposal’s timing, the consolidation of 216-220, and the resulting Liberty roadway realignment created improved leverage in the Applicant’s efforts to obtain a higher density of 11.54 FSI with a total of 1145 residential units. However, he asserted that in the absence of any other neighbouring applications at 190 or 215, it was the planning reality that the City had to consider at the time. He noted that there were approximately 29 other site-specific projects in the VMC where densities higher than 4.5 FSI were the result, all of which maintain different site characteristics and conditions.

72Mr. McKay reiterated his view and the opinion of Mr. Arnott, that the DPS and SPA applications will ultimately define and implement the final design of the shared roadway allowing for minor modifications where required and will be responsive to neighbouring site-specific applications that may follow; that the approved Proposal is equitable and follows the City’s transportation and VMCSP’s guidelines and objectives; that it does not negatively/adversely impact the Appellant lands; and that the significant Community Benefits Package including the current design of the community centre, as supported by the City, with local park improvements among other elements, will be maintained with a favourable Tribunal decision.

73Mr. McKay concluded that the approved Proposal and implementing instruments (OPA 77 and ZBA 155-2022) have appropriate regard for s. 2 of the Act; are consistent with the PPS; conform to the GP; conform to the YROP 2010 and the YROP 2022 (although not determinative); conform with the VOP and the VMCSP; have appropriate regard and respond to the City’s Design Guidelines; and represent good planning which is in the public interest. He therefore recommends that the Tribunal should dismiss the Appeals and approve the Proposal in support of the Applicant and City’s position.

Appellant Witness (Transportation)

74Mr. Linton commenced his testimony highlighting his carriage of the matter on behalf of Franden-215, and noted at the outset that although there was no agreed upon statement of facts concluded between him and Mr. Arnott, that the two of them worked cooperatively in preparation for the Hearing. He further testified to his reliance on the planning evidence of Ms. Pandey, also acting on behalf of Franden-215.

75At a high level, Mr. Linton provided his outline of the relevant transit oriented specifics surrounding the Proposal, and generally in the VMC and the VMCSP, which were fundamentally consistent with Mr. Arnott’s testimony and the general planning submissions of Mr. McKay.

76Mr. Linton’s testimony initially focused around his opinion that the VMCSP section 4.3.1 (Exhibit 2, Tab C-2) does not make mention of a general City policy that a DPS application related to a new local roadway design is required. He also emphasized his view that the proposed WSP Option 3, approved stratified N-S public local road should be evaluated further on the question of equitability and its importance in this matter. He concurred that generally speaking, any particular alignment could inhibit the development potential of 215 and/or 190, while also agreeing with the need for a N-S roadway in this instance resulting from the Liberty application approval process.

77Mr. Linton reviewed the WSP Options outlined at the VMC-SQLM in August 2021, as follows:

• Option 1- He opined that this Option is consistent with what the Appellants’ preferred Option-C represents, and shifts the roadway entirely on the easterly limit of 216-220 at the property line of 190, and parallel to 215’s westerly property limit and within the limits of preferred ROW. He acknowledged that this would likely result in the need for a redesign of the community centre space;
• Option 2- He opined that this Option consumes more of the Applicant’s site as compared to representing a more ideal scenario for 215, leaving no remnant parcel within its property;
• Option 3- He opined that this Option as approved in the Proposal, involves an improved balance, with a reverse-curve at the south, encroaching on 190 and is less impactful on 216-220. However, he stated this Option is also more significantly impactful on 215 resulting in a larger remnant parcel of land. This would also result in an estimated higher than 300 residential unit potential shortfall relying on Ms. Pandey’s planning analysis.

78Mr. Linton opined that all scenarios were technically acceptable, and in his analysis that it was clear that the City’s intention is to have a “continuous roadway between Highway 7 and Peelar Road, and not a discontinuous road with offset intersections.” He further asserted that “there could be a multitude of alignment options” and “that even if an alignment that involves reasonable departures from the City’s criteria is considered technically acceptable from a transportation perspective, the alignment would require ultimate approval from the approval authority” (Exhibit 4, Tab 3-A).

79Mr. Linton initially suggested that the public consultation process was somewhat inadequate, limiting follow-up input from area landowners, however, it was quickly established that this assertion did not form part of any evidence submitted to the Tribunal prior to the hearing, and therefore, was not pursued further.

80Instead, Mr. Linton returned to a review of Crozier’s alignment alternatives as follows:

• Option A – Displays a continuation of the N-S local road through 215, with straight tangents leaving a much larger remnant parcel of 1139.2 m², but may not meet the City’s engineering design criteria.
• Option B - Represents an alignment which departs from the City’s engineering design criteria, and leaves a larger remnant parcel than desired by 215, and also represents a modified version of the City’s WSP Option 3.
• Option C - Represents a variation of the City’s preferred WSP Option 1, reducing the impact on the size of the remnant parcel at 215 to a total of 320 m², and is the recommended roadway alignment of the Appellants.

[emphasis denotes the Appellants’ preferred Option C]

81Mr. Linton relied on Ms. Pandey’s witness statement which shows that Option C (Exhibit 4, Tab 3-B, pg.214) could accommodate up to 812 residential units within a two-tower proposal at 215, as Franden’s improved road alignment. As compared with the City’s preferred WSP Option 3 and BDP’s plan, this would limit 215 to approximately 400 residential units identified. This scenario also shows a more detailed relationship to the neighbouring development to the east as displayed below:

82Mr. Linton testified that he concurred with Mr. Arnott’s assertion that a continuous roadway is preferred to one that creates offsets and continued with his own position that Crozier’s Option C alignment is preferable. He stated that Option C conforms with the VMCSP’s guidelines and that in his interpretation, is also more equitable.

83In his witness statement and testimony, Mr. Linton asserted that regarding Issues 12 through 14, his views were as follows:

a) The NextTrans Transportation Impact Study (“TIS”) does not accurately assess the impacts of the amended VMCSP Street Network - Schedule C, because it lacks analysis on operational safety related to offsets, and proposes to introduce offsets contrary to the policy;

b) The VOP notes a policy objective to eliminate jogs at intersections, as opposed to offsets, and the TIS does not look at alternate configurations fully;

c) The N-S roadway, as illustrated, does not represent good transportation planning, but that its importance to the fine grain grid of streets, in this matter represents a discontinuity and runs counter to City and Regional policy goals to achieve viable active modes of transportation; and,

d) This version of the N-S roadway creates an offset in Schedule C to the VMCSP that will disrupt the ability to establish a fine-grain grid network of streets, and presents safety concerns for pedestrians and cyclists moving north-south, thus, deterring walking and cycling.

84Mr. Linton concluded that it was his opinion that Schedule C, and any implementing Zoning By-Law (“ZBL”) should maintain the N-S local road in a continuous alignment, substantially in the form of Option C, and not in a discontinuous fashion sought in the Proposal, and that a continuous alignment would represent good transportation planning.

85During extensive cross examination, which follows, Mr. Linton testified he was not present during the VMC-SQLM in August 2021, and that Crozier had been retained in December 2022. He also confirmed that in the lead up to this Hearing, no communication with WSP or City staff had ever transpired, and there is currently no application pending from 215 to his knowledge. Mr. Linton acknowledged that the question of equitability was addressed in the PSR (Exhibit 2, Tab F-8, pg.979) whereby the report states as follows:

• The Development proposes the delivery of a new north-south local street and a portion of the required pedestrian mews outlined in Schedule C - Street Network of the VMCSP that will contribute to the finer grid network and connectivity in the VMC, promoting multiple modes of transportation including use of walking, cycling and public transit. The alignment as proposed, varies slightly from the VMCSP. Through the VMC Transportation Master Plan (‘TMP’) update, the City’s consultant WSP identified three north-south street alignments and recommended one (Option 3) as the preferred road alignment. The subject development’s proposed street alignment [matches] the City’s preferred Option 3 and best [meets] the policies and objectives of the VMCSP in terms of fairness and equability of straddling local streets along property lines where possible.

[emphasis added]

86Further cross examination and testimony from Mr. Linton, provided greater clarity for the Tribunal as follows:

a) He had no knowledge of discussions that took place around the subject of equitability, that led to 190’s portion of the roadway representing approximately 12 percent, and WSP Options leaving differing degrees of remnant parcels at 215;

b) He acknowledged the City’s mandate to ensure that decisions are made in the public interest and is cognizant of the significance of the Community Benefits Package, but was not in a position to comment on the redesign impact associated with a 65 m² portion of the community centre that would be truncated if the Appellants’ preferred Option C were to be implemented.

c) He agreed the 20 m ROW was appropriate, and that the Applicant’s cross section of the approved stratified N-S public local road appeared accurate, and acknowledged that the VMCSP’s Schedule C could be adhered to through the DPS application process;

d) He recognized the WSP analysis required work with active site-specific applications at that time, and that part of its mandate superseded individual landowner alignment preferences, and confirmed that it also evaluated Options “collectively” throughout the process, contemplating/anticipating future redevelopment applications;

e) However, he highlighted his view as follows (Exhibit 4, 3-B, para. 7):

• …in my opinion the alignment modifications being sought by the Applicant (216-220 Doughton Road) are not minor as they shift the roadway alignment partially into one property not owned by the Applicant (190 Doughton Road) and shift the continuation of a necessary future alignment on additional lands not owned by the Applicant (215 Doughton Road). The negative impacts of this alignment shift in development potential on the 215 Doughton Road lands, and the ability for the 215 Doughton Road lands to meet the City’s policy objectives under future redevelopment, have been detailed in the witness statement of Katie Pandey - which do not consider these impacts minor.

f) Neighbouring redevelopment applications have their own circumstances/characteristics to deal with on a site-specific basis, and added that in some instances they may not fully understand the alignment implications approved by the City;

g) All WSP Options would have a shifting impact on other redevelopment parcels and that it was a “fair statement” when suggested that this Proposal may not have required an OPA related to WSP Option 3. He also acknowledged that the Proposal’s approved OPA did not directly propose any changes to 215;

h) Any consent from 190 or 215 was likely or not achievable because WSP Option 3 was not deemed by the Appellants to be either “minor” or equitable and that the Tribunal should determine whether the alignment modifications are “minor” and require consent from neighbouring property owners, which he asserted was a common practice in other jurisdictions (without providing examples);

i) When referred to Exhibit 11 (WSP email to landowners, dated September 2, 2021 following the VMC-SQLM in August 2021), as follows:

• Dear Stakeholder,

  Thank you for those who were able to attend the Vaughan Metropolitan Centre Southeast Quadrant Landowners Meeting on Thursday, August 26th. Our team presented the attached PDF of slides and discussion ensued. No decision was made regarding the final alignment of the north-south road. It was agreed that the equitable sharing of property impacts due to the road is important. There were requests for the CAD files to be able to see the details of the three proposed alignments. The CAD also has been attached to this message. Please note that the CAD file is strictly a conceptual plan to convey options and is not a legal survey plan or a construction drawing,

j) he acknowledged that CAD files were strictly conceptual plans at the time and not legal surveys, and that no formal decisions regarding the road alignment were made, that equitable sharing of the roadway alignment was important which forms part of the related development benefits for 190 through this sharing of property in all WSP Options scenarios representing a degree of equitability;

k) While he had never personally been involved in the design of a stratified road, Crozier engineers from his firm did have experience in that field and acknowledged that a number of engineering disciplines, among other experts, would be required at some considerable expense to determine the feasibility of alternate alignments such as Option C;

l) He concurred that the impact on the community centre re-design would not be the only consideration through this analysis, and that there was no “suite” of any alternate architectural designs to draw upon provided as evidence at the Hearing;

m) That after reviewing Exhibit 13 (Liberty- Planning Staff Report to Council-January 23, 2024) which stated as follows in paragraph 5:

o THAT the revised Draft Plan of Subdivision File 19T-13V006 (1834371 Ontario Inc.) as shown on Attachment 6, BE DRAFT APPROVED, to facilitate the creation of three mixed-use development blocks, a park block, public rights-of-way (ROW), road widenings, and 0.3m reserves, subject to the Conditions of Draft Plan of Subdivision Approval in Attachment 12 to this Report,

n) He concurred that this clause, among others, requires Liberty to submit a DPS to proceed with the road alignment with the 0.3 m reserve, which is commonly accepted and further requires detailed drawings with a significant number of conditions of DPS approval outlined in the staff report in Attachments 6 and 12, with a 20 m ROW Street A, B, and Highway 7, all subject to the satisfaction of the City.

87It is noteworthy that concurrent to the timing of Mr. Linton’s testimony, Exhibit 14 (Post-Meeting Minutes of the City’s Committee of the Whole - para. 3, January 23, 2024) was submitted as further evidence indicating that recommendations were before City Council regarding the Liberty proposal. The Tribunal was later advised that these recommendations were approved by City Council, while this hearing was ongoing the same day of January 30, 2024.

88Planning staff recommendations and City Council supported the removal of the “Liberty H Symbol”, implementing the DPS, OPA and ZBA final instruments, with conceptual Site Plans, and supported that the Liberty proposal should be forwarded to the Region for final consideration.

Appellant Witness (Land Use Planning)

89Ms. Pandey commenced her testimony by noting that Weston was retained by Franden originally in 2015, but more recently since March 2022 specific to this Appeal, and confirmed that she was not the planner of record until August 2023. She outlined that her background in the VMC included applications with townhomes in the Bathurst Avenue and Keele Street vicinity, during her three years as an Associate Planner with Weston.

90Ms. Pandey reconfirmed that she did not object to the Proposal’s density, and was generally aligned with Mr. McKay’s statement of agreed-upon facts relating to land use planning, however, her primary focus was her opposition to the stratified N-S public local road, based on 215’s inequitable share of the roadway, as well as its negative impact on the development potential of 215.

91In her witness statement, she states that the Proposal lacked regard for the “achievement of provincial, regional and local policy direction related to intensification, density targets, and maximizing investment in higher order transit” (Exhibit 4, Tab 4-A, para.11). She asserted that an improved roadway realignment would represent good land use planning, which is more appropriate and in the public interest.

92Ms. Pandey also initially referenced adjacent property to the east described as 185 Doughton Road and 108-112 Maplecrete Road (“MegaVista”), which is approved with a high density, two-tower project consisting of 42 and 39 storeys, and 7.73 FSI, which she opined represented good planning. She briefly identified other VMC proposals to the south and west, including 233 Doughton Road, 7551 and 7601 Jane Street (“Omega”), with numerous other significant densities in the mix.

93Ms. Pandey generally opined that the ZBA must comply with the OPA, and that she had not previously experienced a scenario whereby a DPS application deals with the implementation of a public local roadway. She asserted that, in her experience, the ZBA stage is where the community centre proposal should have been more appropriately dealt with. She further testified that the Tribunal must determine how changes to the roadway alignment should be implemented as opposed to the DPS application process, which should primarily address the conveyance aspect of such a re-alignment.

94In order to demonstrate alternative development options for 215, Ms. Pandey referenced a series of design images produced by Weston, with four scenarios displaying different roadway alignments and densities, and generally outlined each scenario with images C1-C4 as follows (Exhibit 7, pgs.20-23):

• C1 - Referred to this as a worse-case scenario, with a City standard road alignment with a 6-storey podium and 42-storey tower, a 4.7 FSI, and with a total of approximately 436 units;
• C2 - Referred to this as a well-planned Option B road alignment, showing a six-storey podium, 42-storey tower, 5.3 FSI and approximately 497 units, noting that a tower at the north end of 215 was not feasible;
• C3 - Referred to this as a scenario with greater potential displaying the Appellants’ preferred Option C road alignment, a larger six-storey podium, 42-storey tower, 5.6 FSI and approximately 526 units, also noting that a tower at the north end of 215 was not feasible; and,
• C4 - Referred to this as the optimal scenario also displaying the Appellants’ preferred Option C road alignment, with a single large two-storey podium, two towers with at 42 and 39-storeys, 8.7 FSI, and approximately 812 units. She state that this scenario is precluded with the stratified N-S public local road alignment (Option 3), as approved by the City, and represented a reduction of 215’s FSI by 3.4 (25,935 m²), with a shortfall of approximately 315 units.

95Based on Ms. Pandey’s summary of the four scenarios, she concluded that the approved stratified N-S public local road alignment (Option 3) “considerably constrains the appropriate development” of 215. Instead, she preferred that relying on Mr. Linton’s review, Crozier Option C which realigns the roadway further to the west on 215’s land improves its development potential and has a minimal impact on the Proposal.

96Ms. Pandey then proceeded to address the re-design issue around the community centre by suggesting that the bump-out portion could be relocated into one of the ground level townhome units, with the Appellants’ preferred Option C road realignment. She attempted this without any architectural or factual analysis submitted by Weston in advance of the Hearing, and shortly thereafter, re-focused her testimony on land use planning opinion.

97Ms. Pandey outlined in her witness statement that Option C “better balances the impacts of the right-of-way and more equitably shares the burden of accommodating the public road between landowners as it maintains the same development yield in terms of height, density, GFA and residential units on the Applicant’s Lands while significantly increasing the potential development yield of Franden’s Property.”

98Ms. Pandey’s opinions on the statutory planning policy framework and Issues List (#1- #14) are detailed in her written witness statement (Exhibit 4, Tab 4-A, pgs. 172-201, paras 49-190) and Reply witness statement (Tab 4-B). In oral testimony, she focused her opinions predominantly addressing the following issues:

a) Regarding s. 2 of the Act, Ms. Pandey opined that in this context, the issue of equitability comes into question in relation to;

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(h) the orderly development of safe and healthy communities;

b) Regarding consistency with the PPS, Ms. Pandey opined that she generally agreed that the Proposal maintains consistency, however, it could be improved with the re-alignment to Option C. Nonetheless, she asserted that the Proposal did not maintain consistency with the PPS in relation to the transportation system not integrating appropriately as follows below:

1.1.1, Healthy, liveable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

b) accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons), employment (including industrial and commercial), institutional (including places of worship, cemeteries and long-term care homes), recreation, park and open space, and other uses to meet long-term needs;

c) avoiding development and land use patterns which may cause

environmental or public health and safety concerns;

d) avoiding development and land use patterns that would prevent the efficient expansion of settlement areas in those areas which are adjacent or close to settlement areas;

e) promoting the integration of land use planning, growth management,

transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit

investments, and standards to minimize land consumption and servicing

costs;

1.1.3.4 Appropriate development standards should be promoted which facilitate intensification, redevelopment, and compact form, while avoiding or mitigating risks to public health and safety.

1.2 Coordination

a) A coordinated, integrated and comprehensive approach should be used when dealing with planning matters within municipalities, across lower, single and/or upper-tier municipal boundaries, and with other orders of government, agencies and boards including:

b) managing and/or promoting growth and development that is integrated with infrastructure planning;

c) economic development strategies; managing natural heritage, water, agricultural, mineral, and cultural heritage and archaeological resources;

d) infrastructure, multimodal transportation systems, public service facilities and waste management systems;

e) ecosystem, shoreline, watershed, and Great Lakes related issues;

f) natural and human-made hazards;

g) population, housing and employment projections, based on regional market areas; and

h) addressing housing needs in accordance with provincial policy statements such as the Policy Statement: Service Manager Housing and Homelessness Plans.

1.4.3 Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area by:

b) permitting and facilitating:

1. all housing options required to meet the social, health, economic and well-being requirements of current and future residents, including special needs requirements and needs arising from demographic changes and employment opportunities; and

2. all types of residential intensification, including additional residential units, and redevelopment in accordance with policy 1.1.3.3;

c) directing the development of new housing towards locations where

appropriate levels of infrastructure and public service facilities are or will be available to support current and projected needs;

f) establishing development standards for residential intensification,

redevelopment and new residential development which minimize the cost of housing and facilitate compact form, while maintaining appropriate levels of public health and safety; and

1.6.7.2 Efficient use should be made of existing and planned infrastructure, including through the use of transportation demand management strategies, where feasible.

c) Ms. Pandey also opined that the Proposal does not conform with the GP 2019, primarily because of the limitations that the roadway imposes on surrounding lands, and the need for improved integration with surrounding landowners, referencing the following sections in the GP:

1.2.1 Guiding Principles

2.2.1 Managing Growth

2. Forecasted growth to the horizon of this Plan will be allocated based on

the following:

a) the vast majority of growth will be directed to settlement areas that:

i. have a delineated built boundary;

ii. have existing or planned municipal water and wastewater

systems; and

iii. can support the achievement of complete communities;

b) growth will be limited in settlement areas that:

i. are rural settlements;

ii. are not serviced by existing or planned municipal water and

wastewater systems; or

iii. are in the Greenbelt Area;

c) within settlement areas, growth will be focused in:

i. delineated built-up areas;

ii. strategic growth areas;

iii. locations with existing or planned transit, with a priority on

higher order transit where it exists or is planned; and

iv. areas with existing or planned public service facilities;

4. Applying the policies of this Plan will support the achievement of

complete communities that:

b) improve social equity and overall quality of life, including human

health, for people of all ages, abilities, and incomes;

d) expand convenient access to:

i. a range of transportation options, including options for the

safe, comfortable and convenient use of active

transportation;

ii. public service facilities, co-located and integrated in

community hubs;

iii. an appropriate supply of safe, publicly-accessible open

spaces, parks, trails, and other recreational facilities; and

iv. healthy, local, and affordable food options, including

through urban agriculture;

e) provide for a more compact built form and a vibrant public realm,

including public open spaces;

f) mitigate and adapt to the impacts of a changing climate, improve

resilience and reduce greenhouse gas emissions, and contribute to

environmental sustainability; and

3.2 Policies for Infrastructure to Support Growth

3.2.1 Integrated Planning

1. Infrastructure planning, land use planning, and infrastructure investment will be co-ordinated to implement this Plan.

2. Planning for new or expanded infrastructure will occur in an integrated manner, including

evaluations of long-range scenario-based land use planning, environmental planning and financial

planning, and will be supported by relevant studies and should involve:

a) leveraging infrastructure investment to direct growth and development in accordance with the policies and schedules of this Plan, including the achievement of the minimum intensification and density targets in this Plan;

b) providing sufficient infrastructure capacity in strategic growth areas;

c) identifying the full life cycle costs of infrastructure and developing options to pay for these costs over the long-term; and

d) considering the impacts of a changing climate.

3. Infrastructure investment and other implementation tools and mechanisms will be used to facilitate intensification and higher density development in strategic growth areas. Priority will be given to infrastructure investments made by the Province that support the policies and schedules of this Plan.

3.2.2 Transportation – General

1. Transportation system planning, land use planning, and transportation investment will be co-ordinated to implement this Plan.

3.2.3 Moving People

1. Public transit will be the first priority for transportation infrastructure

planning and major transportation investments.

2. All decisions on transit planning and investment will be made according to the following criteria:

a) aligning with, and supporting, the priorities identified in Schedule 5;

b) prioritizing areas with existing or planned higher residential or

employment densities to optimize return on investment and the efficiency and viability of existing and planned transit service levels;

c) increasing the capacity of existing transit systems to support strategic

growth areas;

d) expanding transit service to areas that have achieved, or will be planned to achieve, transit-supportive densities and provide a mix of residential, office, institutional, and commercial development, wherever possible;

e) facilitating improved linkages between and within municipalities from

nearby neighbourhoods to urban growth centres, major transit station areas, and other strategic growth areas;

f) increasing the modal share of transit; and

g) contributing towards the provincial greenhouse gas emissions

reduction targets.

d) Regarding the YROP 2010, Ms. Pandey opined that while there was conformity, the Proposal’s road alignment imposes limits on the redevelopment of 215 and restricts its potential for improved development scenarios, and therefore, did not conform to the YROP 2010.

e) Ms. Pandey agreed that the YROP 2022 is not determinative in this matter, however, she emphasized the importance of new and increasing growth targets and opined that the Proposal did not conform to the YROP 2022.

f) Ms. Pandey also opined that the Proposal did not conform with the VOP for similar reasons and emphasized that this was primarily based on her view that it was not equitable.

g) Regarding conformity with the VMCSP, Ms. Pandey opined that the Proposal does not achieve optimal coordination, with the straddling of the roadway, and does not conform to the requisite s. 4.3.1, because the road alignment has no regard to the impact on 215. She further asserted on this issue, that the question of equitability is also relevant, and that the approved road alignment again, adversely impacts the development potential of 215 with the loss of 315 units. She stated that this negative downstream impact with its absorption of the entire length of the roadway could be remedied by amending the alignment to reflect the alternative Option C.

99Ms. Pandey concluded that 190 also had a number of concerns in common with 215, and asserted that 190 could benefit further in terms of its own redevelopment options with alternative Option C. By revising the design of the community centre and shifting the N-S road to the west, she asserted that this would achieve the objectives of the planning policy framework and legislative requirements.

100Finally, Ms. Pandey summarized her evidence by stating that the Proposal: was not equitable or appropriate; did not represent good planning; was not consistent with the PPS; did not conform to the GP, the YROP 2010 or YROP 2020, the VOP and the VMCSP. She also encouraged the Tribunal to allow the Appeals and amend the OPA and ZBA instruments, bringing both in line with the Appellants’ alternative Option C road alignment.

101During extensive cross-examination, a number of important issues were raised along with some new Exhibits from Counsel for both the Applicant and the City. A brief summary of Ms. Pandey’s responses follows below:

a) No redevelopment applications to her knowledge have been submitted at 215;

b) No prior knowledge of any ongoing detailed community centre design discussions between the Applicant and City, and had minimal prior exposure to any stratified road matters and a DPS application process to secure such a road;

c) Weston consulted with the City related to the Proposal on numerous occasions including March, May, June and July of 2022, and the City was fully aware of their concerns with Option 3 prior to its final decision. She also confirmed that Weston was consulted at a second VMC-SQLM in April 2022 and that no direct discussions took place between Weston and WSP regarding road alignment Options at any point in the lead-up to the City’s approval;

d) Concurrence with the Proposal’s site-specific height, density, built form, provision of parking and land use, but primarily disagrees with the roadway alignment;

e) Acknowledgement that the OPA depicts the road alignment which also requires a DPS application, and that the ZBA depicts the road conceptually and without specificity;

f) Acknowledgement that the Proposal impacts 215 indirectly, and could not opine on the horizontal road alignment design specifically, yet Mr. Linton’s evidence was that all three of the Appellants’ Options were feasible, and claimed to rely on Ms. Pandey’s evidence regarding development scenarios;

g) Confirmed that Exhibit 15 (dated September 2015) displays a development schematic and roadway straddling 215 and the site to the west known as the OMEGA site. Asserted that equitability was different at that time although the VMCSP s. 4.3.1 had not changed;

h) Acknowledgement that in Exhibit 5, BDP development designs (pg. 52) achieve all current density guidelines and objectives;

i) After reviewing Exhibit 16 (dated January 31, 2024), Ms. Pandey also acknowledged that the VMCSP Sub-Committee studies update is recommending that 215 remains unaffected with existing densities and heights of up to 25-storey; and that she was unaware of the fact that Weston is actively engaged with the City in this review process, sharing its input on a site further to the east of 215 at 44 Creditstone Road and 31 Maplecrete Road (new Exhibit 17, dated January 30, 2024).

Appellant (TDL-190) Architectural Evidence

102Although initial concerns were submitted with regard to Mr. Caricari’s impartiality, the Tribunal determined that his testimony was welcome, in an effort to assist the Tribunal in its analysis, exclusively related to architectural elements of the Proposal.

103Mr. Caricari agreed and noted that although he is also a development consultant (Land Development Corporation) retained by TDL-190, he was not a qualified land use planner and avoided any analysis in that regard.

104Mr. Caricari’s site design options related to 190 were reviewed by the Tribunal as Exhibit 6, where he opined that from a design perspective, 190 could potentially achieve a height of 12-storey, with a 6.41 FSI and approximately 116 units, with the Applicant’s approved N-S public road. However, he asserted that with the alternative Option C roadway, 190 could achieve a tower of 30-storey, a 10.07 FSI, allowing for 218 units, within a very efficient design. This of course would mean that the roadway would shift to the west, entirely on 216-220, allowing only the ROW to abut the property line at 190.

105Regarding the community centre, Mr. Caricari opined that the bump-out design could be reduced by approximately 43 m² (differing with Mr. Linton who referenced 65 m²) with a new version, easily allowing the relocation of the space within the built-form envelope of the Proposal’s podium design. He attempted to demonstrate this by sketching an outline of where the space could potentially be relocated. He suggested several times, that there could be a “thousand different options” in design that could be considered.

106Mr. Caricari had not submitted any other design alternatives for consideration and analysis of the Parties prior to the Hearing other than Exhibit 6. Instead, he opted to graphically annotate the existing architectural design of the community centre and propose design revisions via screen-sharing in real-time.

107Mr. Caricari concluded that the approved stratified N-S public local road restricted 190’s ability to achieve higher density and built form, by creating an irregular-shaped lot, ultimately preventing a tower design and limiting the height to a mid-rise building allowing only 10-12 storeys.

108During cross-examination, Mr. Caricari agreed or acknowledged the following:

a) The WSP Option 3 N-S roadway creates a new driveway benefitting 190, at the north end of the property, in addition to an existing access/egress point along Doughton Road;

b) There were other examples of land assemblies including Liberty, Omega and MegaVista surrounding 190, and that these assemblies allow for significantly higher densities;

c) That with the existing width of 190 (30.5 m) along Doughton Road, the impact on a new building width would be limited by a setback requirement at 190’s property line, therefore restricting the site to a midrise range of 10-12 storeys, with a 4.0 FSI, requiring an OPA and ZBA. However, he asserted that with the proposed alternate roadway shift to the west (Option C), a tower building design could meet that setback condition and achieve higher density;

d) That in order to implement Option C, a broad range of expert disciplines would have to be engaged as previously demonstrated in the testimony of other witnesses;

e) There was no current proposal before the City relating to 190;

f) He had not had any discussions with the City regarding the relocation/re-design of the community centre;

g) That a new N-S roadway is a public benefit; and,

h) That Exhibit 19, (May 31, 2022 and June 1, 2022 emails) made evident an ongoing desire by TDL existed, in pursuit of some form of consolidation/assembly with the adjacent landowner to the east. The emails state that TDL was seeking a “consolidated plan,” for higher density in an effort to “work collaboratively with staff and the community.” The email goes on to state that he would “discuss with our client to explore alternative uses for the site that will complement the predominantly residential proposed surrounding developments.”

ANALYSIS AND DISPOSITION

Stratified North-South Public Local Road Alignment (WSP Option 3)

109Without question, this transportation issue remained at the forefront of most of the nine-day Hearing. As witness testimony advanced, and became subject to cross-examination, factual analysis, and due process, it became quite evident to the Tribunal that the process of consulting landowners in the VMC generally, and the VMC Southeast Quadrant, in particular, was a comprehensive and challenging task.

110Counsel for Franden takes the view that the public consultation process was “flawed” and “at a minimum, an imperfect process.” Counsel for TDL goes further to state that:

Council adopted the applicant’s site-specific application which had already implemented Option 3, and in doing so, will permit the imposition of public infrastructure on TDL’s lands. If TDL cannot appeal this decision, this is contrary to the public process that is contemplated by the Planning Act for imposing infrastructure on private lands.

111The City submitted that the process was “a robust public process and was not determined by the application” and that “it was vetted by the Region and Reginal staff in approving OPA 77.” The Tribunal has determined that a decision with regard to whether the public consultation process was fulsome is not necessarily warranted in its consideration of the approved OPA/ZBA before it. While some landowners chose not to engage initially in the VMC-SQLM of August 2021 (Appellants included), during the period that followed there was evidence of ongoing correspondence with the City in the lead-up to Council’s consideration and approval of the Proposal by June 2022.

112The Tribunal finds that the road alignment evidence of Mr. Arnott, supported by Mr. McKay’s additional land use planning evidence was compelling, quite definitive, and is preferred. The Tribunal also agrees that the appropriate provisions/conditions are in place through the OPA and ZBA, that will allow all landowners the opportunity to re-engage with the City over time, as it also considers the preliminary SPA application, and follows the public consultation process as further required by the City. A comprehensive process will follow allowing a more detailed analysis of all of the requisite instruments, as further reinforced by evidence submitted relating to the Liberty proposal more recently.

Development Impact on Appellant Properties

113The task of evaluating future redevelopment potential is a rather challenging one, and often wrought with countless variables including the involvement of a variety of expert disciplines, and normally based on the genuine authenticity of any applicant’s intentions.

114The Tribunal was presented with a variety of differing schematic scenarios relating to some future redevelopment options at 190 and larger more intensified design alternatives at 215. It became quite evident during the hearing, that what related to the prospect of densities, heights and intensification objectives on the Appellants’ respective properties, with no formal applications having been submitted, were purely speculative.

115There is general agreement that each site has significant redevelopment potential, based on their current GFA, as outlined by Mr. McKay and BDP through their visual evidence. Their individual site characteristics were also reinforced by Weston’s assortment of design alternatives as presented during the Hearing, although they persisted with their desire for much more, with limited reasoning. Some suggested alternatives with respect to the prospect of assembly and/or site consolidation opportunities have also been encouraged. Both 190 and 215 would likely stand to benefit significantly if this were to transpire.

116After careful analysis, the Tribunal is persuaded and prefers the extensive written, visual and oral testimony of the Applicant’s evidence. Appellant evidence did not warrant a rejection of the Proposal. The Tribunal determined that there is nothing preventing the Appellants from pursuing their own applications within the context of the current and ongoing VMCSP guidelines and principles. Finally, the Tribunal also finds that it would be inappropriate to venture in to determining the potential for the Appellants’ parcels, where a formal redevelopment application is not even a matter before it.

Community Benefits Package

117Evidence during the course of the Hearing surrounding this component of the Proposal was overshadowed by the roadway and redevelopment scenarios on 190 and 215, and could have been deemed to be an uncontested issue. Nonetheless, the Tribunal determined that this issue was a critical underlying element in its deliberations. The significance of this component of the Proposal, as approved, cannot be underestimated and the Tribunal must have regard for the details involved.

118The City convincingly supported the Proposal and the very important elements associated with the Community Benefits Package. The total amount of $9,000,000 for off-site VMC park enhancements and on-site community space totaling 470 m² for community uses, is a meaningful negotiated contribution, that will complement and enhance future planning and growth objectives in the VMC’s Southeast Quadrant.

119Counsel for the City submitted that the “section 37 benefit can only be secured if the project represents good planning.” The Appellants’ proposed amendments to the OPA and ZBA, as submitted for the first time during closing statements, conflicts with the City’s approval of the Proposal and the Tribunal is persuaded by the City’s submissions that any amendments would very likely jeopardize the Community Benefits Package secured in support of the Proposal. WSP Option 3, clearly represents the City’s preferred alignment, in the “context of an uneven property fabric in the area” and that it represent fairness and the most equitable option in conformity with Policy 4.3.1. The Tribunal finds that it is persuaded by submissions from Counsel for the Applicant, stating that “The Applicant does not agree that the Appellant’s proposed modifications to the OPA 77 Schedule or the By-law 155-2022 Schedule will have the intended legal effect as these instruments do not fix the alignment. The Tribunal agrees that a westerly shift in the road alignment (Option C) would likely require a multi-disciplinary redesign of the Proposal, and very likely impact the viability of the Community Benefits Package.

120Appellant witness efforts to suggest a re-design of the community space were purely based on a difference of opinion associated with the road alignment. These efforts were given limited weight. It may often be the case that one architectural design does not meet another architect’s preferences, however, the City’s position was clear, in that the design stems from a desire to appeal at-grade-level, to the immediate community with somewhat of a statement piece along Doughton Road, which the Tribunal found to be quite credible.

121Therefore, the Tribunal prefers the evidence in support of the Proposal and concurs with the overall Community Benefits Package, including the community centre design, as approved by the City.

Land Use Planning Considerations

122Fundamentally, while this Hearing has heard considerable evidence related to road alignments and redevelopment concepts on neighbouring properties adjacent to the Proposal, the Decision of the Tribunal must determine whether it supports the OPA and ZBA and the requisite details/conditions within each, respectively.

123As summarized in witness statements and other materials submitted, the Proposal, as approved by the City consists of the following:

i. Two (2), 46 (Tower 1) and 52-storey (Tower 2) residential apartment buildings ranging from 770 m² to 800 m² in floor plate sizes above the 5th floor;

ii. 1,145 residential units;

iii. A 4-storey shared podium with lobby, amenity space, 470 m² of community space, and nine (9) townhouse units located at grade;

iv. Four (4) levels of underground parking, accessed from Doughton Road with a portion of the underground parking garage (stratified) beneath a future north-south local street;

v. A 20 m wide north-south street (partially stratified) extending from the north property line aligning with a north-south street on the adjacent property to the north and extending to Doughton Road;

vi. A total GFA of 86,551 m² and an FSI of 11.54;

vii. A combined indoor and outdoor amenity of 4,273 m², landscaped area of 440 m² (mews), 470 m² of community uses, and private balconies of 5,930 m²;

viii. Community benefits totaling $9,000,000.00 as a contribution for off-site VMC park enhancements and on-site community space, pursuant to Section 37 of the Act; and,

ix. A total of 573 parking spaces (residential and visitor).

124The Proposal’s Site-Specific OPA 77 permits the increase to the maximum permitted height and FSI (noted above), beyond the stipulated VMCSP guidelines, and it permits the development to proceed within the Black Creek Renewal Corridor. In addition, as required by the City, it allows for a new stratified N-S public local roadway with a 20 m ROW. The WSP analysis and public consultation process allowed for this outcome, and ultimately the City’s preferred alignment was approved, generally in line with the objectives of the VMCSP’s Schedule C. With this in mind, the Tribunal determined that the City acted accordingly and in the public interest, and above any individual landowner interests.

125The Proposal’s Site-Specific ZBA 155-2022 schematically shows the proposed roadway, and most importantly contains the H provision, requiring the DPS application among a number of other conditions including precise roadway setbacks, and allowing the flexibility for Minor Variances if necessary.

126Having carefully considered the totality of the land use planning evidence, and all submissions from Counsel on behalf of the Parties, the Tribunal prefers the evidence provided by the Applicants with the City’s support. The Tribunal is satisfied that the OPA and ZBA do not fix the final road alignment and that this will evolve over time with this and other applications as they proceed. Furthermore, the Tribunal agrees that the DPS and SPA application process will ultimately implement and fix the precise alignment, through a process of public consultation, and a decision by City Council.

127The road alignment analysis, process, and the perceived adverse/negative impact on the redevelopment potential of 190 and 215 were the primary contested issues. The Appellants were given considerable latitude to detail their redevelopment ambitions with a multitude of hypothetical schematic design scenarios, however, for the Tribunal to determine that any of these scenarios are acceptable, would be inappropriate. The Tribunal does, however, have appropriate regard for the VMCSP as it impacts 190 and 215, which sets out the requisite planning guidelines and objectives for future applications.

128Over the course of the Hearing, it also became quite evident that ongoing City deliberations around the VMCSP are current (January 2024), and relevant to these sites and other ongoing applications. The Liberty example is perhaps the most relevant to this Proposal, evolving with the easterly shift of the N-S roadway alignment after the consolidation of 216-220. This example is evidence that reinforces the Tribunal’s confidence in the process. The interests of the Appellants are preserved with the current 25-storey maximum heights, and in the case of 190, enhanced (with an increased FSI of 5). Finally, the Tribunal agrees that Applicant witness assertions that site “optimization” and not “maximization” as the appropriate land use and infrastructure planning concepts have guided this Proposal, and should also guide any future neighbouring applications.

129The Tribunal concludes that it supports Official Plan Amendment 77 (“OPA 77”) and Zoning By-law Amendment (“ZBA”) 155-2022 as approved by the City, which also :

• have the appropriate regard for s. 2 of the Act;
• are consistent with the PPS;
• conform with Growth Plan;
• conforms with the YROP 2010;
• conform with the YROP 2022;
• conform with VOP;
• conform with the VMCSP; and,
• represent good planning, is in the public interest, and should be approved, brought into force, and effect.

Bill 150

130The Tribunal is aware that Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”), received Royal Assent on December 6, 2023.

131Important to note, is that the VOP is not affected by this, and given that the Province’s approval of the YROP 2022 was rescinded, the Parties generally agreed that the YROP 2022 is not determinative in this matter. As of the date of this hearing matter, there is no consolidated version of the new YROP 2022, with the relevant modifications approved under the OPAA, and based on testimony from both planning experts, and through Counsel closing submissions, the Tribunal is satisfied this Decision does not turn on this, as the YROP 2022 contains many of the policies from the YROP 2010. Therefore, the Tribunal determines that OPA 77 and ZBA 155-2022 conform with both.

ORDER

132THE TRIBUNAL ORDERS that the appeals by Franden Holdings Ltd., and Tony and Dom’s Limited, are hereby dismissed.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.