Curated North Inc. v. Markham (City), 2024 CanLII 36231

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 17, 2024

CASE NO(S).: OLT-23-000720

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

Applicant and Appellant: Curated North Inc.

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

Description: To permit a 40-storey residential building with 487 units

Reference Number: PLAN 22 265093

Property Address: 17, 19, 21 and 23 Morgan Avenue

Municipality/UT: City of Markham/ Regional Municipality of York

OLT Case No.: OLT-23-000720

OLT Lead Case No.: OLT-23-000720

OLT Case Name: Curated North Inc. v. Markham (City)

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

Applicant/Appellant: Curated North Inc.

Subject: Application to amend the Zoning By-law – Neglect to make a decision

Description: To permit a 40-storey residential building with 487 units

Reference Number: PLAN 22 265093

Property Address: 17, 19, 21 and 23 Morgan Avenue

Municipality/UT: City of Markham/ Regional Municipality of York

OLT Case No.: OLT-23-000721

OLT Lead Case No.: OLT-23-000720

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Markham

Request for: Request for Adjournment

Heard: February 29, 2024 by Written Hearing

APPEARANCES:

Parties	Counsel/Agent*
Curated North Inc. (Applicant/Appellant)	David Bronskill
City of Markham	Andrew Biggart

DECISION DELIVERED BY J. INNIS ON FEBRUARY 29, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision dismisses the City of Markham’s (“City”) motion to adjourn the appeal. As a result, this matter will proceed to a hearing on the merits scheduled to commence on Tuesday, September 3, 2024.

2The matter concerns a non-decision by the City regarding applications for an Official Plan Amendment (“OPA”) and Zoning By-Law Amendment (“ZBA”), brought pursuant to s. 22(7) and 34(11) of the Planning Act (“Act”) by Curated North Inc. (“Applicant”). The purpose of the Applications is to facilitate the development of a 40-storey residential building with 487 dwelling units and 259 parking spaces at 17, 19, 21, and 23 Morgan Avenue (“Site”).

3A 12-day merit hearing was scheduled to commence Tuesday, September 3, 2024, and the City is seeking a motion to adjourn until the completion of the City of Markham’s Younge Corridor Secondary Plan (“YCSP”), with an anticipated completion date of October 2024. The City also provided an alternative adjournment date of Q2, 2025, which is the anticipated release of the Interim Report and Draft Development Concept from the City’s YCSP. It is the City’s position that adjourning the hearing will provide the Tribunal with a better understanding of the vision for the Yonge Street Corridor in which the proposed development will be located. The Applicant seeks to move forward with the scheduled hearing and responds that a hearing is not premature, that an adjournment causing delay would be prejudicial, that there are no legal or policy requirements for a secondary plan to be in place prior to the Tribunal’s consideration of the Applications and that the motion is contrary to the Clergy Principle.

LEGISLATION

4An appeal to the Tribunal for a non-decision by City Council on a request for amendment is permitted through s. 22(7) and 34(11) of the Act.

5Under the Ontario Land Tribunal Act (“OLTA”) s. 12(2) the “Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings”.

6Further, the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”), sets out criteria for considering a motion to adjourn an appeal in Rule 17 (emphasis underlined):

17.3 Requests for Adjournment without Consent If a party objects to an adjournment request, the party requesting the adjournment must bring a motion at least 15 days before the date set for the hearing event. If the reason for an adjournment arises less than 15 days before the date set for the hearing event, the party must give notice of the request to the Tribunal and to the other parties and serve their motion materials as soon as possible. If the Tribunal refuses to consider a late request, any motion for adjournment must be made in person, at the beginning of the hearing event…

17.5 Powers of Tribunal upon Adjournment Request The Tribunal may,

a. grant the request.

b. grant the request and fix a new date or, where appropriate, the Tribunal will schedule a case management conference on the status of the matter;

c. grant a shorter adjournment than requested;

d. deny the request, even if all parties have consented;

e. direct that the hearing proceed as scheduled but with a different witness, or evidence on another issue;

f. grant an indefinite adjournment, if the Tribunal finds no substantial prejudice to the other parties or to the Tribunal’s schedule and the Tribunal concludes the request is reasonable for the determination of the issues in dispute. In this case, a party must make a request, or the Tribunal on its own initiative may direct, that the hearing be rescheduled or resumed as the case may be;

g. convert the scheduled date to a mediation or case management conference; and

h. make any other appropriate order.

CONTEXT

7Affidavits (‘affidavit/s”) were filed on the merits of the appeal and the Tribunal hereby qualifies the authors to provide opinion evidence in land use planning:

a) For the Applicant: David A. McKay, Registered Professional Planner

b) For the City: Jennifer Kim, Senior Planner, City of Markham Jason Ezer, Senior Planner, Region of York

8The Site is located on the west side of Yonge Street and on the south side of Morgan Avenue. It is approximately 0.24 hectares, with 60 metres of frontage along Morgan Avenue and are currently occupied by four single detached dwellings.

9Directly north and east of the Site are single detached dwellings. South of the Site are single detached dwellings, and further south is a commercial plaza and a cluster of high-rise towers along Yonge Street. West of the Site are single detached dwellings, a commercial plaza fronting Yonge Street, and three high-rise residential towers with at grade commercial uses.

10The Site is located within the delineated boundary of a Protected Major Transit Station Area (“PMTSA”) for the Clark Subway Station. The minimum density for the Clark PMTSA is 250 people and jobs per hectare. The Region of York (“Region”) Official Plan (“ROP”) identifies the Site as “Urban Area” and designates it as a “Community Area”. The 2014 City Official Plan (“COP”) designated the Site as “Mixed Use High Rise” (17, 19 and 21 Morgan Avenue, permitting a maximum building height of 15-storeys) and “Residential Mid-Rise” (23 Morgan Avenue, permitting a maximum building height of six-storeys).

11The Site is located within an Intensification Area, the future YCSP and are subject to area and site-specific policies in s. 9.18 Thornhill. The provisions of the revised 1987 City of Markham’s Official Plan (“MOP”), as amended and Secondary Plan (PD 3-1), as amended, shall apply to the Site until the approval of the YCSP. Schedule A- Land Use map in the MOP designated the Site as “Urban Residential” and further designates the Site as “Low-Density Housing” in the Thornhill Secondary Plan (PD 3-1). The Site is zoned as “Fourth Density Single Family Residential” (R4) Zone, which permits single detached dwellings, parks and other recreational areas under the control of a municipality or public authority, and schools under the jurisdiction of the Public/Separate School Board.

12As preliminary work for the YCSP, the City conducted a study known as the Yonge Corridor Land Use and Built Form Study (“Yonge Corridor Study”) that contained potential concepts for the three station areas along the Yonge Corridor, including the Clark Subway Station, and was endorsed by Council on June 14, 2022. The development of the YCSP commenced in October 2023 and is expected to be completed and approved on or before October 2025.

13The applications for an OPA and ZBA were deemed complete by the City on December 23, 2022, and were to facilitate the development of a 33-storey residential building with a total of 387 residential dwelling units. On June 6, 2023, the applications were the subject of a Public Meeting. The City received a revised submission on June 30, 2023, seeking to increase the building height to 40-storeys and consist of 487 residential dwelling units and five levels of underground parking with 259 parking spaces. On July 4, 2023, the revised applications were appealed to the Tribunal for a non-decision by City Council.

SUBMISSIONS

The City

14The City submits as follows, based on the affidavits.

a. The City submits that it would be premature to make a decision regarding the proposed development as the current in-effect policies do not consider the PMTSA and were approved prior to the approval of the subway extension. The Application proposes a height and density that is not contemplated under the existing policy framework, which is currently being updated through the YCSP. The Planning Justification Report dated November 28, 2022, submitted in support of the Application, cites the arrival of the subway as a major justification for the size and scale of the proposed development. It is undetermined how the proposed development may ‘fit’ within the vision for the Yonge Street Corridor and should become clearer with the release of the YCSP Interim Report and Draft Development Concept. Ensuring that planning decisions anticipate and mitigate future land use planning conflicts serves the public interest.

b. There are concerns that the Functional Servicing and Stormwater Management Report dated November 14, 2022, (and amended June 23, 2023) “do not address the sanitary servicing constraints to support their proposed development”. The associated servicing studies for the YCSP are underway and the proposed development should be coordinated and adhere to the recommendations of the municipal servicing concept and strategy to facilitate orderly development. Further, the Regional staff encouraged the Applicant to work with the City in developing the YCSP as “the appropriate level of planned intensification is required at the Secondary Plan level and cannot be properly evaluated on a site-by-site basis” (Region of York’s Pre-Application Consultation comments, dated October 22, 2022).

c. Even if the proposed development was approved at the September 2024, hearing date, there is no practical way that the proposed development would commence construction in the subsequent few months. Therefore, adjourning the hearing until at least the release of the Interim Report for the YCSP and Draft Development Concept would avoid site-by-site planning and potential need of holding provisions or withholding Final Orders to deal with servicing issues.

d. As this site is mid-block, without frontage on Yonge Street, it is preferred by the City that the appeals be adjourned until the completion/approval of the YCSP so that the Tribunal can access the proposed development with greater certainty regarding its compatibility within the context that will exist. However, the City recognizes the need to balance competing private and public interests, and as the City is anticipating the Interim Report and Draft Development Concept for the YCSP to be completed by the end of 2024, an adjournment of the hearing to Q2 of 2025, would provide the Applicant and the City an opportunity to consider the YCSP Interim Report and Draft Development Concept and prepare witness statements.

e. As this proposed development would form part of the ‘existing context’ for the Yonge Street Corridor, it would be prejudicial to the City and the public interest if the proceeding occurs prior to the completion of the YCSP Interim Report and Draft Development Concept being presented to the City’s Development Services Committee. Should the proposed development be approved, it would be taken into consideration when allocating heights and densities along the east side of Yonge Street and may impact the persons and jobs allocation for other sites within the Yonge Street Corridor. This would not provide for “complete and planned communities where such an increase in density accommodates community services and facilities, schools, and amenities for the increased residents to the area”. Further, prejudice of the YCSP would occur as this proposed development would set a precedent as the City has received other development proposals for other sites in the Yonge Street Corridor.

f. The Applicant is partly relying on the Clark Subway Station to justify the scale of intensification at the Site. As the subway station is not expected to open until at least 2031, there would be no prejudice to the Applicant if the hearing dates are adjourned from September 2024 to dates in Q2, 2025.

g. Allowing the proceedings to occur as scheduled with a proposed development application with a significant increase in density on a site-by-site basis, without understanding the future intended context “does not constitute comprehensive and good land use planning”.

h. On October 17, 2023, the Tribunal approved a settlement for lands known municipally as 36 to 48 Steeles Avenue East and 37 to 40 Highland Park Avenue (“Zonix Applications”). The Zonix Applications are a larger site, with a different context that front directly onto Steeles Avenue East. These were not mid-block applications, and as such, the advancement of these applications would not prejudice the planned development as envisioned by the City in the Yonge Corridor Land Use and Built Form Study. Also, the Zonix Applications do not prejudice the heights that are to occur in mid-block areas of the Younge-Steeles Corridor, which are to have lower heights than those that front directly onto Steeles or Yonge. Given the location and proposed size of the development, the proposed development would cause significant prejudice to the YCSP.

i. Further, there is the potential that the completion of the YCSP may reduce issues or result in a negotiated settlement.

The Applicant/Appellant

15The Applicant submits as follows, based on the affidavits.

a. The Applicant responds that the Act entitles them to a hearing of the merits and any concerns regarding the prematurity of this matter should be addressed through said hearing. The applications were deemed complete and the principles of natural justice and procedural fairness “provide certainty for applicants, such as the Respondent, regarding the policies against which any Act application will be tested and the case it needs to meet”.

b. The City’s motion for adjournment would further seemingly afford the City with an opportunity to introduce a new policy framework that would be applicable to the Site and therefore, is contrary to the Clergy Principle.

c. The City provided no evidence of prejudice since it has previously supported approval of a high-density development in the area, nor did it pass an Interim Control By-law, and “any alleged prejudice is entirely of the City’s own making” given that the City did not act timely to implement the 2014 City Official Plan. An adjournment would represent prejudicial delay to the Respondent, and such a delay as sought by the City is unreasonable.

d. The motion directly conflicts with the City’s approach to the Zonix’s Application which was another intensification proposal that was governed by the same policy framework in which the Tribunal approved a 44-storey tower and a 40-storey tower, in advance of the YCSP for the area. Noted in the Decision was that the Yonge Corridor Study “is an indication of the current City Council direction in respect to the form of development contemplated for these lands and the surrounding lands”.

e. The Yonge Corridor Study includes a conceptual massing for the Clark Station Area and identifies 26.9 hectares of potential development area along the corridor. Refence from the City Motion Record supports this position: the Yonge Corridor Study as it “advances the technical work need to confirm the transit-orientated community potential of the Steeles, Clark and Royal Orchard Stations.” (Page 57 of the City Motion Record) and (…the Study Area is an appropriate location for high-density development.” (Page 69 of City Motion Record).

f. The implementation chronology of the 2014 Official Plan supports that any alleged prejudice is entirely of the City’s own making. The City did not complete its initial study regarding the intensification in this area until 2020 and took an additional two years for Council to endorse the Yonge Corridor Study. It took another 16 months to commence the YCSP process and this occurred after the Respondent had already appealed their Applications to the Tribunal.

g. Reference to case law, including the following from Shifton Properties Ltd v. Brantford (City), 2010 CarswellOnt 9865, was provided as the Respondent submitted that the delay sought by the City would be prejudicial to their interests:

…to further delay the Sifton and Grandview hearings, would, in the Board’s view introduce a question of fairness, would unreasonably delay and prejudice the appellant’s ability to test the proposed development of their land, and for these reasons it is not acceptable. The Appellants are strongly suggesting that the Clergy Property principle applies, and the Board should proceed with the appeals, independent of any other proceedings. The long-held position of this Board has been that the test that must be met is based on the planning parameters of the day, not on something to be implemented in the future.

h. As the City Council endorsed the Yonge Corridor Study for intensification around the Clark Subway Station, an application of this sort should not be of surprise to the City or the public. Further, the Applications, supported by studies, were circulated to external agencies, reviewed by City staff and underwent a Statutory Public Meeting. As such, no prejudice to the City would occur should the hearing proceed as scheduled.

16Concerns raised by the City that should this hearing proceed, the outcome could potentially set a precedent and thus prejudice the outcome of the YCSP, would suggest that other applications would or should be approved simply based on the planned context. The Applicant suggests that alternatively, every individual application should be evaluated on its own merits.

17The Applicant further submits that a delay is prejudicial to this application considering that both planning approvals and the construction process are lengthy. The Clark Subway is scheduled to open in seven years and the development proposed will take approximately four to five years to construct and occupy. Given all that is required to complete the planning approval process, building permits, sales to meet financing requirements, construction and occupancy, any delay would be prejudicial to the Applicant. Further, the housing required to maximize ridership should be in place to support transit infrastructure investment prior to, or concurrently with the subway opening.

18Identified servicing issues/constraints by the City and Region were reviewed and responded to by the Applicant’s Engineers through the second submission filed in June 2023. Servicing can be managed and resolved through standard approval processes, which may include utilizing a holding provision to ensure that all necessary matters are addressed before construction begins and as such, there is no need to wait for the YCSP to be completed. Similarly, the recently approved settlement of the Zonix Applications by the Tribunal withheld the Final Order until “the Applicant/Appellant has entered into any agreements required to secure any required upgrades or improvements to the existing municipality infrastructure” (Zonix Group Inc. v. Markham (City) 2023 CarswellOnt 16312).

ISSUES AND FINDINGS

19Both the City and Applicant acknowledged that there are no legislative or policy requirements for a secondary plan to be prepared or adopted by the City prior to the Tribunal considering the Applications; and that no Interim Control By-law was imposed by City Council that included the Site. The Tribunal accepts this and further, that the Act entitles the Respondent to a hearing under s. 22(7) and 34(24).

20The Tribunal finds that the City’s motion to adjourn is premised on the prematurity of a merit hearing and the prejudice that would occur to the City, Region and public interest, should it proceed. The City submitted that a decision from a merit hearing in advance of the completed YCSP or at the least, the release of the Interim Report and Draft Development Concept, would prejudice the outcome of the YCSP, by forming part of the ‘existing context’, impact development capacity for other lands in the study area, and allow for site-by-site planning that does not lend to building complete communities. The City contended that public interest is best served by making certain that planning decisions will avoid future land use planning conflicts. However, the Tribunal finds that determining what would constitute good land use planning is best derived through a full hearing on the merits.

21The Applicant provided evidence that the merit hearing for the Applications are not premature, as the City has significant guidance from the Yonge Corridor Study, and this is supported by the settlement achieved for the Zionx Applications. In the City’s evidence, they state that “the subject appeal, unlike the Zonix settlement, is located mid-block, is not in keeping with the vision for the site or the areas as evidenced by the Younge Corridor Land Use and Built Form Study…” (underlined for emphasis).

22While the Tribunal concurs with the City that the Zonix Applications are aligned to the vision within the Younge Corridor Study, and provide for a different context by having a larger site that fronts onto Steeles Avenue East, the Tribunal finds that they are still part of the study area. Therefore, it can be assumed that this too will impact the outcome of the YCSP, albeit in favour of the current Council’s intended vision for the area. With this in mind, the Tribunal prefers the evidence and submissions of the Applicant insofar as the City has sufficient guidance to determine the appropriateness of development on lands within the study area. Consequently, the present Applications should similarly proceed with a merit hearing.

23When considering the prejudice to the City, Region and the public interest as purported by the City’s motion, the Tribunal must also consider the prejudice of delay, procedural fairness and the principles of natural justice.

24Both Parties acknowledge that delay in and of itself can be prejudicial in some circumstances. The Applicant suggests that any prejudice experienced by the City is entirely of its own making given the chronology of events leading to the completion of the YCSP. Accepting the Applicant’s evidence, the Tribunal finds that the need for a new secondary plan was identified in 2014, and yet the City did not compete its initial study regarding intensification until 2020. While it may appear that the process to adopt a new secondary plan may be lagging, the Tribunal finds that this does not excuse the prejudice caused by the City.

25Given that the new subway station set to open in 2031, the Tribunal prefers the opinion evidence provided by the Applicant insofar as an adjournment would cause delay of the proposed development. The Tribunal further finds that fulfilling the intensification of the PMTSA, which is required to provide the ridership needed to support the transit infrastructure, should be in place prior to or coincide with the opening of the subway. The Tribunal accepts the fact that the inevitable lengthy process between development approvals and occupancy is significant and an adjournment until the approval of the YCSP, of which itself is subject to potential appeals, would only exacerbate the potential delay.

26The Tribunal also prefers the evidence of the Applicant regarding servicing constraints for the Site, as this matter may be addressed at the merit hearing and has the potential to find resolve through the standard approvals process.

27It is accepted that the Applications were deemed complete by the City prior to the commencement of the YCSP process. The Tribunal further accepts the Applicant’s submissions insofar as an adjournment until the release of the interim report and development concept study and/or the adoption of the YCSP would act to effectively oust the Clergy principle. As found in Masters v. Claremont Development Corporation, 2021 CarswellOnt 6492 (Ontario Divisional Court):

The underlying concern was for procedural fairness. How could it be fair to require that an application adhere to an understood policy framework and then, in the course of examining the proposal, change the policy foundation thereby making it more difficult, perhaps even impossible, for the application to proceed.

28The Tribunal accepts the evidence provided by the Applicant and concurs that a motion to adjourn these Appeals to await the Interim Report or adoption of the YCSP contradicts the tenets of natural justice and procedural fairness.

29In making this decision, the Tribunal has considered the prejudices to the City, Region and public interest against those such as delay, procedural fairness and natural justice. The Tribunal finds that a decision on the proposed development may no more or less prejudice the outcome of the YCSP, than the one derived through a settlement. It further finds that the prejudice of delay is evident and seeking an adjournment so that the YCSP policies may also be applied to these Applications would be contrary to the Clergy Principle. As such, the Tribunal finds that, on balance, the potential prejudices suffered by the respective Parties favours proceeding to a fair and expeditious hearing.

ORDER

30THE TRIBUNAL ORDERS that the motion to adjourn is dismissed and that the 12-day merit hearing to commence on Tuesday, September 3, 2024, shall proceed as scheduled.

“J. Innis”

J. INNIS

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.