Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 18, 2024
CASE NO(S).: OLT-23-000278
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Jarvis & Earl Inc and Jarvis & Earl 2 Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a 58-storey residential building with a 4- to 9-storey podium base and at grade retail
Reference Number: 22 185925 STE 13 OZ
Property Address: 561 Jarvis Street, 102-120 Earl Place and 6-8 Huntley Street
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-23-000278
OLT Lead Case No: OLT-23-000278
OLT Case Name: Jarvis & Earl Inc. and Jarvis & Earl 2 Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Jarvis & Earl Inc and Jarvis & Earl 2 Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit a 58-storey residential building with a 4- to 9-storey podium base and at grade retail
Reference Number: 22 185925 STE 13 OZ
Property Address: 561 Jarvis Street, 102-120 Earl Place and 6-8 Huntley Street
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-23-000279
OLT Lead Case No: OLT-23-000278
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A.
Applicant/Appellant Jarvis & Earl Inc and Jarvis & Earl 2 Inc.
Subject: City of Toronto Site Plan Approval
Description: To permit a 58-storey residential building with a 4- to 9-storey podium base and at grade retail
Reference Number: 22 185924 STE 13 SA
Property Address: 561 Jarvis Street, 102-120 Earl Place and 6-8 Huntley Street
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-23-000280
OLT Lead Case No: OLT-23-000278
Heard: March 11, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
Jarvis & Earl Inc. and Jarvis & Earl 2 Inc.
Jason Park Sarah Kagan
City of Toronto
Ray Kallio
DECISION DELIVERED BY S.L. DIONNE AND INTERIM ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is a settlement of appeals filed by Jarvis & Earl Inc. and Jarvis & Earl 2 Inc. (“J&E”) in respect of the failure of the City of Toronto (“City”) to make decisions within the prescribed timeframes set out in the Planning Act, R.S.O. 1990, c. P.13, (“Act”), regarding applications for amendments to the City of Toronto Official Plan (“OP”) and Zoning By-law No. 569-2013, as amended (“ZBL”).
2Further, on the matter of the J&E appeal of its application for site plan approval, the Parties requested that the Tribunal adjourn this appeal sine die as they continue to work towards resolving any outstanding matters specifically regarding the site plan application. The Tribunal grants this request and the J&E appeal pursuant to s.114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A is hereby adjourned sine die.
3The appeals before the Tribunal affect the lands municipally known as 561 Jarvis Street, 102-120 Earl Place, and 6-8 Huntley Street, in the City of Toronto (“Subject Lands”). The Subject Lands are an assembly of numerous properties located within a block bounded by Jarvis Street on the west, Isabella Street on the north, Huntley Street on the east, and Earl Street on the south.
4By way of background, J&E filed applications on July 26, 2022 to permit the re-development of the Subject Lands for a proposed 58-storey residential/mixed-use building (“Original Proposal”). Following a community consultation meeting held on February 22, 2023, J&E’s applications were revised to include the 6-8 Huntley Street properties which are proposed as public parkland (“Revised Proposal”). On March 31, 2023, J&E appealed the applications on the basis of the City’s non-decision within the prescribed timeframes under the Act.
5The Tribunal held a first Case Management Conference on July 12, 2023, at which time Glen Huntley Holdings Limited and APS Holdings Limited (“Glen-Huntley”), owner(s) of neighbouring lands at 10 Huntley Street, were granted Party status, and Casey House, Jennifer Bates, and Rocky Sharma were granted Participant status. Subsequently, on January 11, 2024, by way of a Telephone Conference Call, the Tribunal granted a request by Casey House, the owner of neighbouring lands at 571 Jarvis Street and 119 Isabella Street, to change its status to that of a Party. More recently, on February 6, 2024, the Tribunal received requests from both Glen-Huntley and Casey House to downgrade their statuses from that of Party to Participant, on consent of all Parties. In summary, the Participants in the matter before the Tribunal in this Hearing include Glen-Huntley, Casey House, Jennifer Bates, and Rocky Sharma.
6Prior to the Hearing, the Tribunal was advised that J&E and the City had reached a settlement on the matters in dispute between them and that City Council had approved a Settlement Proposal, in principle, at a meeting on February 6, 2024. The Parties are seeking the Tribunal’s approval, in principle, of the Settlement Proposal and the proposed planning instruments, which are an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”), contingent upon the satisfaction of Conditions as set out in City Council’s decision from February 6-7, 2024.
7For the reasons set out below, the Tribunal allows the appeals in part and approves, in principle, the proposed OPA (Attachment 1) and ZBA (Attachment 2) contingent upon the fulfilment of Conditions set out in this Order.
SETTLEMENT PROPOSAL
8The Subject Lands are approximately 2,354 square metres (“m2”) or 0.23 hectares (“ha”) in area and are currently developed with several low-rise buildings. A total of 31 rental dwellings thereon were occupied at the time that the applications were submitted.
9The Settlement Proposal involves the re-development of the Subject Lands for a 58-storey residential/mixed-use building, comprised of the following:
A built form of a six-storey podium element, having a three to six-storey street wall condition along Earl Street and Jarvis Place, and a 52-storey tower element for a maximum building height of 200.40 metres (“m”) (including the mechanical penthouse);
A total Gross Floor Area (“GFA”) of approximately 43,848 m2, of which approximately 154 m2 is at grade retail GFA, which equates to a Floor Space Index (“FSI”) of 23.54. The net gross density including the parklands equates to a FSI of 18.62;
A total of 708 residential apartment units, including 677 market units and 31 rental replacement units. There is a mix of unit types, of which six (0.8 percent) are studio dwelling units, 464 (65.6 percent) are one-bedroom, 164 (23.1 percent) are two-bedroom, 74 (10.1 percent) are three-bedroom. Three of the units are at-grade townhouse-style apartment units;
Amenity space at a minimum rate of 3.5 m2 per dwelling unit will be provided, with the indoor amenity space located on Levels 4-7, all-inclusive, and outdoor amenity space on roof levels 3, 4 and 6;
All access, loading and servicing functions are provided through the vehicular driveway to the building off Earl Street in the southwest corner of the site, including the underground parking garage ingress/egress ramp;
A total of 75 vehicle parking spaces, which includes 66 vehicle spaces for residents, seven vehicle parking spaces for visitors, and two car-sharing spaces within the three-level parking garage;
A total of 709 bicycle parking spaces, of which 638 are long-term and 71 short-term bicycle parking spaces; and
One (1) Type-C and one (1) Type-G Loading spaces are located at-grade, internal to the building envelope.
10Retail use(s) are located at grade along Jarvis Street, and the residential lobby and townhouse-style apartment units with individual front doors are located along Earl Street.
11That portion of the Subject Lands, referred to as 6-8 Huntley Street, is proposed as a parkland dedication in an amount of 491 m2 (0.049 ha), which represents an over-dedication at 20 percent of the Subject Lands area.
12The Settlement Proposal varies from the Original and Revised proposals in that:
The scale of the podium element has been reduced from nine to six storeys and setback further from Jarvis Street and Earl Place;
The street wall heights adjacent to Earl Place have been reduced and simplified and made to be more consistent. The massing has been simplified by removing terraces and cantilevered areas, particularly along the north building face;
The tower floorplate has been compressed in its east-west dimension and extended in its north-south dimension, resulting in it being further away from Earl Place and Jarvis Street and reinforcing the podium element as the primary building element when viewed from the public realm along those streets; and
The building setbacks allow for an expanded pedestrian zone and opportunities for landscaping and streetscaping along Jarvis Street and Earl Place.
13The Settlement Proposal is reflected in the architectural plans prepared by Krikor Architects and Planners, dated December 6, 2023.
LEGISLATIVE FRAMEWORK
14When considering appeals filed pursuant to s. 22(7) and 34(11) of the Act, the Tribunal must have regard to the matters of Provincial interest as set out in s. 2 of the Act, and the Tribunal shall have regard to the information and materials that City Council received in relation to the matters under s. 2.1(2) of the Act. Further, s. 3(5) of the Act requires Decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to A Place to Grow; Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”), as well as conforms to, or does not conflict with the OP, including any applicable Secondary Plans and City Guidelines as the case may be.
15In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the planning instruments resulting from the Settlement Proposal represent good planning.
EVIDENCE AND EXHIBITS
16Evidence in support of the Settlement Proposal was provided by David Huynh, a Registered Professional Planner in the Province of Ontario, who was duly qualified by the Tribunal to provide expert opinion evidence in the area of land use planning. Further details of the Settlement are found in Mr. Huynh’s Affidavit, dated March 6, 2024, and marked by the Tribunal as Exhibit 1. The Parties also filed with the Tribunal proposed planning instruments to implement the Settlement Proposal, being a draft amendment and schedules to the OP marked as Exhibits 2A and 2B, and a draft amendment and schedules to the ZBL marked as Exhibits 3A and 3B.
17Mr. Huynh’s opinion evidence, provided by way of both his oral testimony and his Affidavit, was clear and fulsome. Mr. Huynh considered matters of Provincial interest as set out in s. 2 of the Act, all the applicable land use planning policies at the Provincial and Municipal levels, as well as relevant urban design guidelines and studies, and how the Settlement Proposal would fit within its surrounding context.
18Mr. Huynh described the surrounding neighbourhood as a “tight urban condition” with different land uses and building types of varying heights, including tall buildings, in close relationship to one another.
19He advised that the Subject Lands are located within 450 m of the Sherborne subway station on TTC Line 2 (Bloor-Danforth), 500 m of the Wellesley subway station on TTC Line 1 (Yonge-University-Spadina), and 600 m of the Bloor-Yonge subway station (an interchange station of TTC Lines 1 and 2), which places the Settlement Proposal within a less than 10-minute walk to public transit.
Matters of Provincial Interest
20With respect to matters of Provincial interest, as set out in s. 2 of the Act, Mr. Huynh opined that the PPS, Growth Plan, and policies of the OP and Secondary Plan all support the intensification of underbuilt sites in Downtown Toronto that are well served by public transit, such as the Subject Lands. He opined that the Settlement Proposal has appropriate regard for matters of Provincial interest as set out in paragraph 115 of his Affidavit (Exhibit 1, PDF Pg. 21).
PPS 2020
21With respect to consistency with the PPS, Mr. Huynh opined that the Settlement Proposal is consistent with the policies that promote efficient use of land and development patterns, intensification, re-development and compact form, particularly in areas well-served by public transit, as discussed in paragraphs 117 to 119 of his Affidavit (Exhibit 1, PDF Pg. 21 and 22).
Growth Plan
22With respect to conformity with the Growth Plan, Mr. Huynh opined that the Subject Lands are part of a “Strategic Growth Area” under the Growth Plan, defined as those areas identified by Municipalities or the Province to be the focus for accommodating intensification and higher density mixed uses in a more compact built form. The Subject Lands are included in the “Downtown Toronto Urban Growth Centre” and fall within the definition of a protected “Major Transit Station Area” (“MTSA”).
23He opined that the Settlement Proposal conforms with the Growth Plan, in particular those policies that seek to optimize the use of land and infrastructure and to encourage growth and intensification in strategic growth areas, including urban growth areas, MTSAs, and lands served by frequent transit. As set out in paragraph 127 of his Affidavit (Exhibit 1, PDF Pg 24), the Subject Lands are located in proximity to the 94 Wellesley and 506 College streetcar routes which meet the definition of “frequent transit”, in that they run at least every 15 minutes in both directions throughout the day and into the evening every day of the week.
City Official Plan
24With respect to conformity with the OP, Mr. Huynh provided evidence that the Subject Lands are located within the “Downtown” as identified on Map 2 (Urban Structure) in the OP and are designated “Neighbourhoods”. Mr. Huynh indicated that the Settlement Proposal will provide additional residential supply and options in the marketplace, and will replace the existing 31 rental units consistent with City policy. He opined that the Settlement Proposal conforms with the OP, and that the re-designation of the Subject Lands to “Mixed Use Areas” and “Parks” to permit a mix of uses, including residential and retail, and to recognize the parkland dedication, is appropriate from a land use perspective, and that the proposed OPA (Exhibits 2A and 2B) is appropriate and should be approved. It was also Mr. Huynh’s opinion that the Settlement Proposal also conforms with the Downtown Secondary Plan policies.
25In terms of OPA No 352 and the tall building setbacks in Downtown, Mr. Huynh advised that relief from the 12.5 m standard may be permitted through a rezoning or minor variance, provided that the space between towers will meet certain criteria. He opined that the Settlement Proposal warrants relief from the Downtown Tall Building Setback By-laws as outlined in paragraphs 238 to 246 of his Affidavit (Exhibit 1, PDF Pg. 47 and 48).
Zoning By-law
26Pursuant to the ZBL, the Subject Lands are currently zoned as follows:
561 Jarvis Street: “Residential ‘R’” (d2.0) (x644), with a height limit of 18 m; and
102-120 Earl Place and 6-8 Huntley Street: “Residential ‘R’” (d2.0) (x504), with a height limit of 18.0 m.
27It is proposed that the Subject Lands be rezoned to an appropriate “Commercial Residential ‘CR’” Zone category to align with and implement the Mixed-Use Areas designation in the OP and to “Open Space ‘OR’” for the 6-8 Huntley Street portion in recognition of the parkland dedication. The CR zone would permit a wide range of uses, including various non-residential uses and dwelling units in a mixed-use building and that site-specific performance standards be established to implement the Settlement Proposal. The Tribunal was provided with a draft ZBA to amend By-law No. 569-2013 (Exhibit 3A and 3B), and it was Mr. Huynh’s opinion that the proposed zone categories are appropriate.
Participant Concerns
28Mr. Huynh testified that he had evaluated the requested OPA and ZBA from a land use planning and urban design perspective, as well as potential impacts on adjacent lands, particularly with respect to light, view, privacy, and shadow. It was his opinion that the Subject Lands are in a location appropriate for a tall building and that the proposed height, siting, and massing of the Settlement Proposal are appropriate from a block approach and consistent with the City’s urban design guidelines. With respect to the shadow impact assessment(s), it was his opinion that the shadow impacts are adequately limited and will not unduly impact nearby heritage properties.
29In conclusion, it was Mr. Huynh’s uncontroverted expert opinion that the Settlement Proposal and the implementing OPA and ZBA represent good planning and are in the public interest.
CONDITIONS
30City Council approved the Settlement Proposal at its meeting of February 6, 2024, as set out in Exhibit 1, (Tab Exhibit I), and which requests that before the Tribunal issues a Final Order that certain conditions be satisfied. The conditions include the finalization of the required OPA and ZBA, provisions for updated technical studies related to site servicing, stormwater management and hydrogeology, and provisions for entering into agreement(s) for the design, construction and financial securities of any upgrades or improvements to Municipal infrastructure as may be determined necessary through the updated studies, all to the satisfaction of the City. Additionally, J&E will also need to meet the City’s requirements with respect to the replacement of rental housing supply.
31Mr. Huynh noted that he has reviewed the conditions and advised that they are typical standard City conditions, and are appropriate conditions to apply in this context.
ANALYSIS AND FINDINGS
32The Tribunal accepts the evidence and uncontroverted professional opinions of Mr. Huynh in its entirety.
33The Tribunal finds that the Settlement Proposal will enhance this area of the City by intensifying and optimizing underutilized lands in a manner that is compatible with the emerging and planned context of the area, is appropriate and desirable from a land use and urban design perspective, and represents good planning and is in the public interest.
34The Tribunal is satisfied that the proposed OPA and ZBA are appropriate to facilitate the redevelopment of the Subject Lands for the provision of much needed additional housing supply, including replacement rental housing supply, in a manner that fits within its local context and will be an appropriate and desirable addition to the City.
35The Tribunal is satisfied that the Settlement Proposal (as presently before the Tribunal) has had appropriate regard for the relevant City Guidelines. Having said this, the Tribunal notes that the site plan, having been adjourned sine die by the Tribunal, is not a matter before it in this Hearing. As such, no finding as to the site plan drawings in and of themselves has been made in this Decision.
36In making its Decision on the appeals before it, the Tribunal has had appropriate regard for matters of Provincial interest as set out in s. 2 of the Act and is satisfied that the Settlement Proposal should be approved in principle, subject to Conditions.
37The Tribunal has had regard to the decision of City Council and the information and materials considered by it. The Tribunal acknowledges City Council’s consent to the Settlement Proposal. The Tribunal finds that the Conditions requested by the City are appropriate. These Conditions are found in the Interim Order of this Tribunal.
38In conclusion, the Tribunal finds that the proposed OPA and ZBA, and the Settlement Proposal that will be implemented by way of these amendments, meet all the applicable statutory tests in that they are consistent with the PPS, conform with the Growth Plan, and conform to the policies of the OP, and represent good land use planning, and are in the public interest.
39Accordingly, the Tribunal allows the appeals and grants the requested approvals in principle, contingent upon the fulfilment of the Conditions as set out it the details below.
ORDER
40THE TRIBUNAL ORDERS THAT the appeal of the site plan pursuant to s. 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A, is hereby adjourned sine die.
41THE TRIBUNAL FURTHER ORDERS, ON AN INTERIM BASIS, THAT the appeals pursuant to s. 22(7) and 34(11) of the Planning Act are allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [42] below, and the Official Plan Amendment and Zoning By-law Amendment set out in Attachments 1 and 2, respectively, are hereby approved in principle.
42The Tribunal will withhold the issuance of its Final Order contingent upon confirmation from the City Solicitor, of the following pre-requisite matters:
i. The Ontario Land Tribunal has been advised by the City Solicitor that the proposed OPA and Zoning By-law Amendments are in their final form and content and are satisfactory to the City;
ii. The Owner has resubmitted the Functional Servicing and Stormwater Management Report and Hydrogeological Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
iii. The Owner has entered into an agreement or agreements or otherwise secured the design, construction, and the provision of financial securities for any required upgrades or improvements to the existing municipal infrastructure should it be determined that improvements or upgrades are required to support the development as may be identified in the accepted Functional Servicing and Stormwater Management Report, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
iv. The Owner has secured replacement of the existing rental housing, including the same number of units, bedroom type and size and with similar rents;
v. The Owner has secured an acceptable Tenant Relocation and Assistance Plan addressing the right for existing and former tenants to return to a replacement rental unit on the lands at similar rents, the provision of alternative accommodation at similar rents, and other assistance to mitigate hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning; and
vi. City Council has approved the Rental Housing Demolition application 22 199096 STE 13 RH under Chapter 667 of the Toronto Municipal Code pursuant to s. 111 of the City of Toronto Act, 2006 to permit the demolition of the existing rental dwelling units, and the Owner has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing all rental housing-related matters necessary to implement City Council's decision.
43The Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-law Amendment and the issuance of the Final Order.
44If the Parties do not submit the final drafts of the Official Plan Amendment and Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in Paragraph [41] above have been satisfied, and do not request the issuance of the Final Order by Friday, October 18, 2024, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Official Plan Amendment and Zoning By-law Amendment and Issuance of the Final Order by the Tribunal.
45The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.
“S.L. Dionne”
S.L. DIONNE
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal. ATTACHMENT 1 – DRAFT OFFICIAL PLAN AMENDMENT
ATTACHMENT 2 – DRAFT ZONING BY-LAW