Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
May 10, 2024
CASE NO(S).:
OLT-22-003274
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
Choice Properties Limited Partnership
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
to permit a 6 building, 1519 unit mixed use development
Reference Number:
21 180550 ESC 20 OZ
Property Address:
683-685 Warden Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-003274
OLT Lead Case No:
OLT-22-003274
OLT Case Name:
Choice Properties Limited Partnership v. Toronto (City.)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
to permit a 6 building, 1519 unit mixed use development
Reference Number:
21 180550 ESC 20 OZ
Property Address:
683-685 Warden Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-003275
OLT Lead Case No:
OLT-22-003274
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
to permit a 6 building, 1519 unit mixed use development
Reference Number:
21 181162 ESC 20 SB
Property Address:
683-685 Warden Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-003276
OLT Lead Case No:
OLT-22-003274
Heard:
In Writing
APPEARANCES:
Parties
Counsel
Choice Properties Limited Partnership
Eileen P.K. Costello
City of Toronto
Mark Crawford
673 Warden Realty Holdings Inc.
Christopher Tanzola
Justine Reyes
decision DELIVERED BY G.A. CROSER AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The Tribunal had originally scheduled a hearing on the merits of the appeals by Choice Properties Limited Partnership (“Applicant”) concerning the City of Toronto’s (“City”) failure to make a decision on the Official Plan Amendment (“OPA”), Zoning By-law Amendments (“ZBLA”) and Draft Plan of Subdivision Appeals (collectively the “Application”) for the property known municipally as 683 – 685 Warden Avenue (“Subject Lands”).
2Prior to the commencement of the Hearing, the Tribunal received correspondence from the Parties advising that a settlement had been reached. The Parties requested that the Merit Hearing be converted to a Written Settlement Hearing.
3Three Affidavits were submitted as part of the Written Settlement. Accordingly, the Tribunal has marked the following as exhibits:
Exhibit 1 – Affidavit of Alun S. Lloyd (Transportation)
Exhibit 2 – Affidavit of Michael Bissett (Planning)
Exhibit 3 – Affidavit of Ralph Giannone (Urban Design)
SITE AND SURROUNDING AREA
4The Subject Lands are vacant with a site area of 2.63 hectares (“ha”) (26,313 square metres (“sq m")), with a frontage of approximately 115 metres (“m”) on Warden Avenue, which also provides vehicular access to the site. The site is designated Mixed Use Areas. The properties to the east are designated Neighbourhoods, and the lands to the west (on the west side of Warden Avenue) are designated Apartment Neighbourhoods and Parks, while the lands to the north and south are designated Mixed Use Areas.
5The surrounding area includes the Warden Woods and associated ravine system, a mix of low-rise residential uses interspersed with some approvals for mid-rise buildings, industrial and employment uses. The site fronts onto Warden Avenue, a major arterial road, and is approximately 500 m south of the Toronto Transit Commission (TTC) Warden Station on the Line 2 subway line.
6The Subject Lands are located within the Warden Woods Community Secondary Plan (“Secondary Plan”), which is centred upon Warden Station and the transit accessibility it provides. The Secondary Plan addresses the need for new linkages and connections to arterial streets and public transit, between neighbourhoods, and to natural and open spaces including pedestrian and cycling routes that will enable intensification and mixed-use community growth around Warden Station.
APPLICATION HISTORY
7The original application, submitted in June 2021 (“Initial Application”), was for a transit-oriented proposal comprised of a new 0.24 ha public park, a new ‘C’-shaped public street, new pedestrian connections, and privately owned publicly accessible open spaces framed by residential and mixed-use buildings ranging from 13 to 36-storeys, with retail uses fronting Warden Avenue.
8In accordance with the Procedural Order issued by the Tribunal on April 27, 2023, the Applicant submitted revised materials in support of a revised proposal (the “November 2023 Proposal”) to address site organization, site planning and built form changes, and to address preliminary City-identified issues regarding matters of urban design and planning. The November 2023 Proposal included:
A new road network, with one curb cut introduced mid-block, with a new Public Street ‘A’ extending east through the middle of the Site and connecting to the existing Pilkington Drive cul-de-sac to the east;
A 2,015 sq m public park at the east end of the Subject Site, with frontage on Public Street ‘A’; and
Six buildings of 14 to 47-storeys.
9Following the submission of the November 2023 Proposal, the Parties continued to work towards resolving the City’s key issues with the Application, resulting in a comprehensive re-design of the development proposal for the Subject Lands (the “Settlement Proposal”).
SETTLEMENT PROPOSAL BEFORE THE TRIBUNAL
10The Parties requested that the Tribunal issue an Interim Decision granting the Appeals in part and providing approval in principle to the Settlement Proposal, while withholding the issuance of the Final Order on the OPA and ZBLAs until the conditions agreed upon by both Parties had been met.
11With respect to the subdivision, the Parties advised that a revised Draft Plan of Subdivision will be submitted in the future to implement the Settlement Proposal. The Plan of Subdivision will identify the new public streets, public parks, and development blocks. It is the intent of the Parties that the Applicant, in conjunction with the City, will develop appropriate conditions of draft approval for consideration by the Tribunal. The Parties requested that the Tribunal adjourn the Draft Plan of Subdivision Appeal sine die to permit the parties to continue to develop the plan and conditions.
12The Settlement Proposal offered significant changes to the Initial Application, including building location, orientation, and height, including transitioning down in height to the east and south; provision of non-residential space; parkland; configuration of the public road network; and site organization. The Settlement Proposal provides for a mixed residential/retail development of five buildings, ranging in height from 17-storeys (with a six-storey mid-rise component) to 49-storeys, with approximately 2,100 dwelling units including a unit mix of 15% two-bedroom units and 10% three-bedroom units. A total of approximately 130,260 sq m of Gross Floor Area (“GFA”) is proposed, inclusive of 985 sq m of non-residential GFA, resulting in a gross density of 4.95 Floor Space Index (FSI). This will be supported by a series of new public streets connecting Warden Avenue and Pilkington Drive and a 2,015 sq m public park located towards the east side of the site.
13The following table provides a comparison summary of the changes through the Initial Application, November 2023 Proposal and Settlement Proposal.
Original Proposal
November 2023 Proposal
Settlement Offer
Gross Site Area Road Conveyance Net Site Area
26,315.1 sq m 2,486.3 sq m 16,061.1 sq m
26,315.1 sq m 5,871.0 sq m 20,444.1 sq m
26,315.1 sq m 6,042.1 sq m 20,230.0 sq m
Parkland Dedication
7,767.7 sq m
2,037 sq m
2,015 sq m
Total Gross Floor Area Res GFA Non-Res GFA
121,003 sq m 120,010 sq m 993 sq m
157,617 sq m 156,915 sq m 702 sq m
130,259 sq m 129,274 sq m 985 sq m
FSI
4.60
6.0
4.95
Height
13 to 36 storeys
14 to 47 storeys
6 to 49 storeys
Unit Count
1,519
2,399 (15% two-bed and 10% three-bed)
2,123 (15% two-bed and 10% three-bed)
Amenity Space
6,088.0 sq m (4.0 sq m/unit)
4.0 sq m/unit
4.0 sq m/unit
Total Vehicular Parking
996
1,147
1,048
Total Bike Parking
1,521
1,836
1,607
OFFICIAL PLAN AND ZONING BY-LAW AMENDMENTS
14The OPA proposes to add a Site and Area Specific Policy to:
Encourage the optimization of existing infrastructure, including the nearby Warden Subway Station;
Permit the development of a mix of mid-rise and tall buildings, providing for appropriate scale in relation to the adjacent Neighbourhoods designated lands to the east and appropriate setbacks to Warden Avenue to the west;
Establish a new public street to provide vehicular, pedestrian and cycling access to the site and adjacent lands to the east, north and south; and
Add a new public park up to a maximum of 2,015 sq m of area with two public street frontages, providing for new pedestrian connections.
15The in-force Zoning By-law for the Subject Property is the former Scarborough Zoning Code. As such, the Settlement Proposal requires an amendment to the City-wide Zoning By-law 569-2013, as amended. The ZBLA proposes to add the Subject Property to City-wide Zoning By-law 569-2013 subject to a CR and OR Exception category. The CR Exception category would include maximum heights and building envelope as well as specifying a maximum gross floor area and other relevant performance standards.
16The OPA and ZBLA implementing the Settlement Proposal are attached to this Decision as Attachment 1 and Attachment 2.
PLANNING EVIDENCE
17Michael Bissett provided planning evidence in the form of a written Affidavit in support of the Settlement. Based on Mr. Bissett’s knowledge and expertise in the area of land use planning, the Tribunal accepts Mr. Bissett’s Affidavit and qualifies him to provide expert opinion evidence in the area of land use planning.
18It was evident from a review of the Affidavit prepared by Mr. Bissett that the Settlement Proposal will contribute to the achievement of numerous policy directions articulated in the Provincial Policy Statement, 2020 (“PPS”), the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and the City of Toronto Official Plan (“OP”), all of which support intensification on underutilized sites within built-up urban areas, particularly in locations that are well served by municipal infrastructure, including higher-order public transit. Pursuant to the Growth Plan, the Subject Site is located within a “strategic growth area”. The Growth Plan defines “strategic growth areas” as those areas intended to accommodate intensification and higher densities with a mix of uses in a more compact built form. In this respect, the proposal provides for a desirable mixed-use development with convenient access to the Warden Subway Station.
19Mr. Bissett also opined that the Subject Property was identified for growth and intensification pursuant to its Mixed Use Areas designation in the OP. The OP states that the Mixed Use Areas designation is one of four land use designations that is intended to absorb the majority of growth and will accommodate the largest increase in jobs and population anticipated by the OP’s growth strategy.
20With respect to the proposed massing and height, Mr. Bissett’s evidence was that the Settlement Proposal focused height on and adjacent to Warden Avenue, with heights gradually stepping down to the east. In this respect, tall building elements are proposed on the west and middle portions of the Site, while mid-rise and tall mid-rise elements are proposed at the east end of the Site, proximate to the proposed on-site parkland dedication and with a stepping down of tall building heights toward the south. The proposed mid-rise form would also be compatible with the existing low-rise residential dwellings to the east of the Site. All proposed tall buildings would fit within a 45-degree angular plane measured from lands designated Neighbourhoods to the east. In Mr. Bissett’s opinion, the proposal fit within its existing and planned context and was appropriately designed to conform to the applicable policies of the OP.
21The Secondary Plan applies to lands on the east side of Warden Avenue, generally between Danforth Road to the south and southeast and Fairfax Crescent to the north and is comprised of a mixture of public and private lands, including lands owned by Ontario Hydro and the TTC. The intent of the Secondary Plan is to support private and public investment in the creation of the community in a manner that is integrated with the surrounding residential communities and ravine system and to establish compatible interfaces with residual and abutting Employment Areas.
22Mr. Bissett noted in his evidence that the Subject Property was one of the few sites within the Secondary Plan area where transit-supportive development could occur, given the location of the large natural features to the west, the developed low-rise areas to the east and south, and the intervening hydro facility lands between the Warden Subway Station and the Subject Site
23It was the view of Mr. Bissett that the Secondary Plan was “out of date”. He explained that the mid-range densities and heights identified in the Secondary Plan provide for a modest degree of intensification and that the Secondary Plan had not been updated since its adoption in 2005. Mr. Bissett opined that the Proposed Development conformed to the Secondary Plan, subject to the amendment to provide for the proposed form of intensification.
24Mr. Bissett’s evidence noted that Policy 2.1.1 of the Secondary Plan provides that mixed-use development with mid-range densities and heights will be permitted and encouraged on the arterial road frontages of Warden Avenue and Danforth Road, with the highest densities and heights located in the Mixed Use Areas and Apartment Neighbourhoods designations closest to the subway station.
25Mr. Bissett’s planning conclusion was that the Settlement Proposal would allow appropriate intensification on an underutilized site in proximity to the Warden Subway Station in the form of a transit-supportive mixed-use development that will make efficient use of existing infrastructure and planned transit service levels. In the Planner’s opinion, the proposed conditions for the OPA and ZBLAs were appropriate and reasonable.
ANALYSIS AND FINDINGS
26The Tribunal finds that given the uncontroverted evidence of Mr. Bissett, the Proposed Development of this vacant site is consistent with good land use planning, as well as the overarching Provincial and City policy direction.
27The Settlement Proposal will facilitate new street connections and include a new public park that will be visually and physically accessible with the proposed public street network. It will optimize the use of land and infrastructure in the area. The proposed mix of uses, which will include ground floor retail uses fronting onto Warden Avenue, as well as residential uses, conforms with the Mixed Use Area designation in the OP. The development will add additional units to the existing housing stock and provide a minimum of 15% and 10% for two and three-bedroom units, respectively. Residential intensification is appropriate in this location and the proximity to the Warden Subway Station will support transit ridership.
28In short, the Tribunal finds that the Settlement Proposal has regard for the Planning Act; is consistent with the Provincial Policy Statement, and conforms to the Growth Plan. As well, the Settlement Proposal, as implemented through the proposed OPA, conforms with the OP, and the ZBLA conforms and implements the intent of the OP.
ORDER
29THE TRIBUNAL ORDERS THAT the Appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in paragraph [30] below and that the Zoning By-law Amendments and Official Plan Amendments set out in Attachments 1 and Attachment 2 to this Interim Order, are hereby approved in principle.
30The Tribunal will withhold the issuance of its Final Order contingent upon confirmation in writing from the City of Toronto Solicitor, of the following pre-requisite matters:
a. The Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;
b. The Tribunal has received, and approved, the Official Plan Amendment submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning, the City Solicitor and the Chief Planner and Executive Director, City Planning;
c. The Tribunal is advised that the Applicant has submitted Site and Area Specific Policies for the Official Plan Amendment to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;
d. The Tribunal is advised that the Applicant has submitted a revised Functional Servicing Report and Stormwater Management Report, Hydrogeological Review, including the Foundation Drainage Report (“Engineering Reports”) to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;
e. The Tribunal is advised that the Applicant has secured the design and the provision of financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Engineering Reports, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;
f. The Tribunal is advised that the Applicant has provided an addendum to the Transportation Impact Study, to the satisfaction of the General Manager, Transportation Services;
g. The Tribunal is advised that the Applicant has submitted a Phasing Plan for the development subject of the Settlement Offer satisfactory to the Chief Planner and Executive Director, City Planning, in consultation with the General Manager, Transportation Services, the General Manager, Parks, Forestry and Recreation, the Chief Engineer and Executive Director, Engineering and Construction Services;
h. The Tribunal is advised that the Applicant has submitted a Wind Tunnel Study, such report to be reviewed with recommendations implemented as part of the amending Official Plan policies and Zoning By-laws, to the satisfaction of the Chief Planner and Executive Director, City Planning;
i. The Tribunal is advised that the Applicant has submitted a revised Shadow Study, landscape plans, Soil Volume plan and chart, TGS statistics template and checklist, and Streetscape cross sections, to be reviewed with recommendations implemented as part of the amending Official Plan policies and Zoning By-laws, to the satisfaction of the Chief Planner and Executive Director, City Planning;
j. The Tribunal is advised that the Applicant has submitted a revised Public Utility Plan to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and
k. The Tribunal is advised that the Applicant has entered into an In-kind Contribution Agreement pursuant to section 37(7.1) of the Planning Act to secure any in-kind contribution. Should there be no agreement on the type or valuation of the in-kind contribution, the owner shall provide a cash contribution equal in value to the Community Benefits Charge applicable to the project, consistent with section 37 of the Planning Act.
31THE TRIBUNAL ORDERS THAT the draft Plan of Subdivision is to be adjourned sine die.
32If the Parties do not submit the final draft 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 [30] above have been satisfied, and do not request the issuance of the Final Order, by Friday, November 29, 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 Amendments and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
33The 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.
34The Tribunal Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment, Zoning By-law Amendment and the issuance of the Final Order.
“G.A. Croser”
G.A. CROSER
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1
ATTACHMENT 2