160 Cactus Avenue Limited v. Toronto (City), 2024 CanLII 452

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 02, 2024

CASE NO(S).: OLT-23-000538

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

Applicant and Appellant: 160 Cactus Avenue Limited

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

Description: To permit the development of four buildings, with heights of 15-storeys, 12-storeys, and four-storeys (as two back-to-back townhouse blocks)

Reference Number: 21 226750 NNY 18 OZ

Property Address: 150 – 160 Cactus Avenue

Municipality: City of Toronto

OLT Case No.: OLT-23-000538

OLT Lead Case No.: OLT-23-000538

OLT Case Name: 160 Cactus Avenue Limited v. Toronto (City)

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

Applicant and Appellant: 160 Cactus Avenue Limited

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

Description: To permit the development of four buildings, with heights of 15-storeys, 12-storeys, and four-storeys (as two back-to-back townhouse blocks)

Reference Number: 21 226750 NNY 18 OZ

Property Address: 150 – 160 Cactus Avenue

Municipality: City of Toronto

OLT Case No.: OLT-23-000539

OLT Lead Case No.: OLT-23-000538

Heard: November 22, 2023, in writing

APPEARANCES:

Parties

160 Cactus Avenue Limited (“Applicant”)

Counsel

David Bronskill

City of Toronto (“City”)

Adam Ward

DECISION DELIVERED JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to Order

Decision

1The Applicant seeks to redevelop a site at 150-160 Cactus Avenue, located on the southwest corner of Cactus Avenue and Steeles Avenue West (“Subject Property”), in the City, to construct four buildings. To this end, the Applicant had applied to amend the City’s Official Plan (“OP”), as well as Zoning By-law No. 569-2013. The appeals are brought respectively pursuant to sections 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), due to the failure of the City to decide in the prescribed time.

2Disposition of the matter has come before the Tribunal as a settlement motion to be heard in writing. The Tribunal confirms that it has received, reviewed and considered the following materials:

a. The uncontested opinion evidence of Michael S. Goldberg, a professional land use planner and a member of the Canadian Institute of Planners, contained in his comprehensive Affidavit affirmed on November 24, 2023 and marked as Exhibit 1; and,

b. A City Council resolution accepting the without prejudice offer to settle, adopted at Council’s meeting of November 8-10, 2023, and attached as Exhibit C to Mr. Goldberg’s Affidavit.

3The Tribunal understands that the affidavit evidence of Mr. Goldberg reflects revisions to the applications before the Tribunal that were reached through the cooperative efforts of the Parties. A comparison of the original and the revised development proposal is outlined in the following table:

Initial Submission

Settlement Plans

Total Site Area

14,173.8 sq. m (3.5 ac.)

No change

Residential GFA

34,482.0 sq. m

36,816.0 sq. m

Non-Residential GFA

186 sq. m

Total GFA

34,482.0 sq. m

37,002.0 sq. m

Floor Space Index

2.4

2.6

Market Dwelling Units

Studio

11 (2%)

One-bedroom

255 (60.3%)

224 (55%)

Two-bedroom

126 (29.8%)

134 (33%)

Three-bedroom

42 (9.9%)

40 (10%)

Total

423 Units (100%)

409 Units (100%)

Rental Replacement Units

Two-bedroom

No change

Three-bedroom

No change

Four-bedroom

No change

Total

60 (100%)

No change

Amenity Space

Indoor Amenity Space

1,205 sq. m

1,231 sq. m

Outdoor Amenity Space

1,325 sq. m

1,065 sq. m

Height

Building Height (excluding MPH)

Building A 48.9 m Building B 40.05 m

Building A 47.45 m Building B 44.5 m

Building Height (including MPH)

Building A 54.8 m Building B 45.95 m Building C 14.85 m Building D 14.85 m

Building A 52.45m Building B 49.5 m Building C 14.85 m Building D 14.85 m

Parking

Number of Vehicle Parking Spaces

319

300 (maximum)

Number of Bicycle Parking Spaces

388

403

4The City requested that the Tribunal withhold its Final Order until the City Solicitor has advised that certain conditions have been met, as identified at paragraph 33 of Mr. Goldberg’s Affidavit.

5The Tribunal accepts the opinion evidence of Mr. Goldberg as presented in his Affidavit and similarly finds that the subject applications, as revised, have regard to those applicable matters of provincial interest found in section 2 of the Act, are consistent with the Provincial Policy Statement (2020), conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), conform to the City’s OP, have regard to the City’s Design Guidelines [including the Avenues and Mid-Rise Buildings (2010) Study, the Townhouse and Low-Rise Apartment Guidelines (2018), the Growing Up Guidelines (2020)] and otherwise reflect principles of good land use planning. Furthermore, considering the settlement has been endorsed by the City, the Tribunal makes its findings while exercising regard for the decision of the City pursuant to section 2.1(1)(a) of the Act.

ORDER

6THE TRIBUNAL ORDERS THAT:

a. The appeals pursuant to sections 22(7) and 34(11) of the Act are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph d., below;

b. The Official Plan Amendment attached hereto as Attachment 1 is approved in principle;

c. The Zoning By-law Amendment attached hereto as Attachment 2 is approved in principle;

d. The Tribunal will withhold issuance of its Final Order contingent upon confirmation of the following pre-requisite matters:

i. The Tribunal has received and approved the Official Plan Amendment and the Zoning By-law Amendment, in a final form, confirmed to be satisfactory to the City;

ii. The Tribunal is advised that the City Solicitor is satisfied that:

The Applicant has satisfactorily addressed the Transportation Services and Engineering and Construction Services matters in the Engineering and Construction Services Memorandum dated December 7, 2022, and any outstanding issues arising from further technical review (including provision of acceptable reports and studies), as they relate to the Official Plan and Zoning By-law Amendment applications to the satisfaction of the General Manager, Transportation Services and the Chief Engineer and Executive Director, Engineering and Construction Services;
The Applicant has submitted a revised Transportation Demand Management Plan acceptable to, and to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services and that matters arising from such study be secured, if required;
The Applicant has addressed all outstanding issues raised by Urban Forestry and Tree Protection and Plan Review as they relate to the Official Plan and Zoning By-law Amendment applications, to the satisfaction of the General Manager, Parks, Forestry and Recreation;
The Applicant has delivered a revised Pedestrian Level Wind Study to the satisfaction of the Chief Planner and Executive Director, City Planning;
The Applicant has secured replacement of the existing rental housing, including the same number of units, bedroom type and size and with similar rents;
The Applicant 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 lessen hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning;
City Council has approved the Rental Housing Demolition application (Application 21 226756 NNY 18 RH) under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006, which allows for the demolition of the sixty (60) existing rental dwelling units on the site, 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; and
The Applicant has registered a Section 118 restriction on title, under the Land Titles Act, agreeing not to transfer or charge the Parkland without the consent of the City, which restriction may be released only upon the owner transferring the Parkland to the City, all to the satisfaction of the Chief Planner and Executive Director, City Planning or designate and the City Solicitor.

e. If the Parties do not submit the final draft of the Official Plan Amendment and the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in the paragraphs above have been satisfied, and do not request the issuance of the Final Order by Wednesday, May 8, 2024, then 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 the Zoning By-law Amendment, and issuance of the Final Order by the Tribunal.

f. The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine additional timelines and deadline for the submission of the final draft of the Official Plan Amendment and the Zoning By-law Amendment, the satisfaction of the contingent pre-requisites, or the issuance of the Final Order.

7The 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.

8Tribunal may be spoken to if there are difficulties in satisfying the above conditions for the issuance of the Tribunal's Final Order.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS 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

AMENDMENT XXX TO THE OFFICIAL PLAN

LANDS MUNICIPALLY KNOWN IN THE YEAR 2022 AS 150-160 CACTUS AVENUE

The Official Plan of the City of Toronto is amended as follows:

Map 17, Land Use Plan is hereby amended by redesignating the lands known as 150-160 Cactus Avenue from Neighbourhoods to Apartment Neighbourhoods in accordance with Diagram 1 attached hereto.

Attachment 2

By-law Amendment

To amend Zoning City of Toronto By-law 569-2013, as amended, with respect to the lands municipally known in the year 2021 as 150-160 Cactus Avenue

The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.
The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, as amended, Chapter 800 Definitions.
Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.1 respecting the lands outlined by heavy black lines from a zone label of [RT (au220.0)] to a zone label of [R x [exception number] and OR as shown on Diagram [2] attached to this By-law.
Zoning By-law 569-2013, as amended, is further amended by [adding] Article 900.[2].[10] Exception Number [-] so that it reads:

([assigned exception number]) Exception [R] ([assigned exception number])

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

Site Specific Provisions:

(A) On lands municipally known as [150-160 Cactus Avenue], if the requirements of By-law [Clerks to insert By-law number] are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to ([T]) below;

(B) Despite regulations [10.5.40.10(1)], the height of a building or structure is the distance between the Canadian Geodetic Datum of [192.6] metres and the elevation of the highest point of the building or structure;

(D) Despite regulations 10.5.40.10, and 10.10.40.10, the permitted maximum height of a building or structure is the number in metres following the letters "HT" as shown on Diagram [3] of By-law [Clerks to insert By-law number];

(E) Despite Regulations 10.5.40.10(2), (3) and (4) and 10.10.40.10(8), (9) and (10) and (C) above, the following equipment and structures may project beyond the permitted maximum height shown on Diagram 3 of By-law [Clerks to insert By-law number];

(i) equipment used for the functional operation of the building, including electrical, utility, mechanical and ventilation equipment, as well as enclosed stairwells, roof access, maintenance equipment storage, elevator shafts, elevator overruns, cooling towers, heating, cooling or ventilating equipment, chimneys, and vents, parapet by a maximum of [6.0] metres;

(ii) structures that enclose, screen or cover the equipment, structures and parts of a building listed in (i) above, including a mechanical penthouse, by a maximum of [6.5] metres;

(iii) architectural features, parapets, and elements and structures associated with a green roof, by a maximum of [3.0] metres;

(iv) building maintenance units and window washing equipment, by a maximum of [6.0] metres;

(v) planters, landscaping features, lighting fixtures, guard rails, and divider screens on a balcony and/or terrace, by a maximum of [3.0] metres;

(vi) antennae and other communication equipment, flagpoles and satellite dishes, by a maximum of [3.5] metres; and

(vii) trellises, pergolas, awnings, canopies, bollards, fences, guardrails, parapets, pipes, railings, and unenclosed structures providing safety or wind protection to rooftop amenity space, by a maximum of [3.0] metres;

(F) Despite regulations 10.5.60.50(2) and 10.10.40.40.(1), the permitted maximum gross floor area of all buildings and structures is [38,900] square metres, of which:

(i) the permitted maximum gross floor area for residential uses is 38,650 square metres;

(ii) the required minimum gross floor area for non-residential uses is 185.8 square metres;

(iii) the permitted maximum gross floor area for non-residential uses is 250 square metres;

(G) In addition to the permitted exclusions of Regulation 10.5.40.40(4), the gross floor area is reduced by the area in the building used for indoor amenity space not required by this By-law;

(H) Despite regulation [10.10.40.50(1)], amenity space must be provided at the following rate:

(i) at least [2.0] square metres for each dwelling unit in as indoor amenity space;

(ii) at least [2.0] square metres of outdoor amenity space for each dwelling unit in of which [40] square metres must be in a location adjoining or directly accessible to the indoor amenity space;

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

(I) Despite Clauses 10.5.40.70 and 10.10.40.70, the required minimum building setbacks are as shown in metres on Diagram 3 of By-law [Clerks to insert By-law number];

(J) Despite Regulation 10.10.40.80(1), the required minimum separation distance of main walls are as shown in metres on Diagram 3 of By-law [Clerks to insert By-law number];

(i) decks, porches, and terraces, by a maximum of [3.0] metres;

(ii) balconies by a maximum of [1.5] metres;

(iii) canopies and awnings, by a maximum of [2.5] metres;

(iv) exterior stairs, access ramps such as wheelchair ramps, underground garage ramps and their associated structures, and elevating devices, by a maximum of [3.0] metres;

(v) cladding added to the exterior surface of the main wall of a building, by a maximum of [1.0] metres;

(vi) architectural features, such as a pilaster, decorative column, cornice, sill, belt course, or chimney breast, by a maximum of [1.5] metres;

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

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

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

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

(xi) lighting fixtures, bicycle parking areas, fences and safety railings, planters, balustrades, bollards, landscape and public art features, by a maximum of [3.0] metres;

(K) For the purposes of this exception, regulations 10.10.40.30 (1), and 10.10.40.40.(1) shall not apply;

(L) Despite Regulation 200.5.1.10(2), a maximum of 25% of the parking spaces may have minimum dimensions of:

(i) length of 5.1 metres;

(ii) width of 2.4 metres;

(iii) vertical clearance of 1.7 metres; and

(iv) the side of the parking space is obstructed is not required to be increased by 0.3 metres;

(M) Despite Article 200.15.1, an accessible parking space must have the following minimum dimensions:

(i) a length of 5.6 metres;

(ii) a width of 3.4 metres;

(iii) a vertical clearance of 2.1 metres; and

(iv) a 1.5-metre-wide accessible barrier free aisle is not required for the entire length of an accessible parking space

(N) Despite Regulation 200.15.1(4), an accessible parking space is not required to be closest to a barrier-free passenger elevator that provides access to the first elevator;

(O) Despite regulation [200.5.10.1(1)] and [Table 200.5.10.1], parking spaces must be provided in accordance with the following:

(i) A maximum of 0.3 for each bachelor dwelling unit;

(ii) A maximum of 0.5 for each one bedroom dwelling unit;

(iii) A maximum of 0.8 for each two bedroom dwelling unit;

(iv) A maximum of 1.0 for each three or more bedroom dwelling unit;

(v) a minimum of 2.0 plus 0.01 per dwelling unit for visitor parking spaces and for non-residential uses;

(P) Despite regulations [230.5.10.1(1)(3) and (5)] and [Table 230.5.10.1(1)], bicycle parking spaces must be provided in accordance with the following minimum rates:

(i) [0.78] "long-term" bicycle parking spaces for each dwelling unit;

(ii) [0.09] "short-term bicycle parking spaces for each dwelling unit;

(Q) Despite regulation [230.5.1.10(4)(A)], the required minimum width of a bicycle parking space is:

(i) length of [1.8] metres;

(ii) width of [0.3] metres; and

(iii) vertical clearance of [1.0] metres;

(R) Despite regulation [230.5.1.10(4)(A)(ii)], the required minimum dimensions of a stacked bicycle parking space are;

(i) length of [1.8] metres;

(ii) width of [0.3] metres; and

(iii) vertical clearance of [1.0] metres;

(S) In addition to the locations a "long-term" bicycle parking space may be located as in regulations [230.5.1.10(9)(B)(i)(ii) and (iii)], "long-term" bicycle parking spaces may also be located above or below grade, outdoors or indoors including within a secured room or enclosure or unenclosed space, or combination thereof, or bike locker;

(T) Despite regulation [230.5.1.10(10)], "short-term" bicycle parking spaces may also be located in a stacked bicycle parking space and may also be located above or below grade, outdoors or indoors including within a secured room or enclosure or unenclosed space, or combination thereof, or bike locker;

Prevailing By-laws and Prevailing Sections: (None Apply)

Despite any severance, partition or division of the lands, the provisions of this By-law shall apply as if no severance, partition or division occurred.
None of the provisions of this By-law or By-law 569-2013, as amended, apply to prevent the erection and use of a Construction Office/Sales Office and associated parking on the lands identified on Diagram 1 of this By-law where a Construction Office/Sales Office means buildings, structures, facilities or trailers, or portions thereof, used for the purpose of the administration and management of construction activity and/or for selling or leasing dwelling units and/or non-residential gross floor area on the lands identified on Diagram 1 of this By-law.