Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2024 CASE NO(S).: OLT-23-000747

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

Applicant/Appellant: Fouro Towers Builders Ltd. & Sasson Construction Inc.s Subject: Application to amend the Zoning By-law – neglect to make a decision Description: Proposed two high rise mixed-used towers Reference Number: ZA 18 140091 Property Address: 9331-9399 Markham Road Municipality/UT: Markham/York OLT Case No.: OLT-23-000747 OLT Lead Case No.: OLT-23-000747 OLT Case Name: Fouro Towers Builder Ltd. & Sasson Construction Inc. v. Markham (City)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Site Plan Description: Proposed two high rise mixed-used towers Reference Number: 22.114181.000.00.SPC Property Address: 9331-9399 Markham Road Municipality/UT: Markham/York OLT Case No.: OLT-23-000748 OLT Lead Case No.: OLT-23-000747

Heard: April 17, 2024 by video hearing

APPEARANCES:

Parties	Counsel
Fouro Towers Builders Ltd. & Sasson Construction Inc.	Paul DeMelo, Sarah Kagan (in absentia)
City of Markham	Pitman Patterson, Maggie Cheung-Madar, Julie Lesage

MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI ON APRIL 17, 2024 AND ORDER AND interim ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION AND BACKGROUND

1The Tribunal conducted a Settlement Hearing related to appeals filed by Fouro Towers Builders Ltd. & Sasson Construction Inc. (“Appellant”) pursuant to ss. 34(11) and 41(12) of the Planning Act (“Act”), against the failure of the City of Markham (“City”) to make a decision on Zoning By-law Amendment (“ZBA”) and Site Plan Control (“SPC”) applications (together “Applications”) within the prescribed timeframe. The Applications, as revised, apply to an assembly of three parcels of lands known municipally as 9331, 9351 and 9399 Markham Road (“Property”).

2The Property is located on the east side of Markham Road, north of 16th Avenue and south of Bur Oak Avenue. It has an area of approximately 1.13 hectares with frontage of approximately 91.4 metres (“m”) on Markham Road, and is currently developed with six one-storey, auto-oriented, strip commercial buildings.

3Land uses surrounding the Property include the following:

• to the north – a car dealership, a one-storey commercial plaza, and the Mount Joy GO Station and associated surface parking lot;
• to the east – the GO Rail Corridor;
• to the south – several commercial service and retail uses; and
• to the west (across Markham Road) – multiple high-rise mixed-use buildings, commercial retail and service shops, block and freehold townhouses, single-detached dwellings, a school, and the Markham Museum.

4The Property is located approximately 300 m from the Mount Joy GO Station and is within a Major Transit Station Area (“MTSA”), as defined in the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The surrounding area has a sidewalk network, as well as multi-use pathways along Markham Road, and on-street cycling lanes along Edward Jeffreys Avenue, with connections to the City’s trail and cycling network.

5The Property is designated ‘Urban Area’ on Map 1 Regional Structure in the Region of York Official Plan (“YROP”), ‘Mixed Use High Rise’ in the City Official Plan, 2014 (“COP”), ‘Commerical’ in the Town of Markham Official Plan, 1987 (“TOP”), and ‘Mixed Use Neighbourhood Area’ in the draft, but not approved, Markham Road Mount Joy Corridor Secondary Plan (“Draft SP”). Policy 9.3.7.3. of the COP directs that the provisions of the TOP apply until the Draft SP is approved.

6The Property is zoned ‘Highway Commercial (M.HC)’ under Zoning By-law 88-76, as amended (“ZBL 88-76”). The ZBA proposes to rezone the Property to ‘Community Amenity Four 752 (Hold) (CA4752 (H)) Zone’ to implement the proposed development.

7The original ZBA application, which applied to 9351 and 9399 Markham Road, was to facilitate the development of two 23-storey residential towers, inclusive of a four-storey mixed-use podium, providing a total of 438 residential units, with a total gross floor area (“GFA”) of 40,977 square metres (“sq m”), including 585 sq m of commercial uses. It was filed with the City in November 2018, and deemed complete as of December 13, 2018, with a public meeting held on May 19, 2019.

8The Appellant subsequently purchased 9331 Markham Road, resulting in the filing of a revised ZBA application as well as a Site Plan Control application (“Revised Applications”) in March 2022. The Revised Applications were to facilitate the development of a mixed-use development consisting of two residential towers of 37 and 42 storeys, connected by a three-storey elevated sky bridge, and two new municipal rights-of-way, being an extension of Edward Jeffreys Avenue along the south boundary of the Property and an extension of Anderson Avenue along the east boundary.

9The Revised Applications provided for a total of 933 residential units, and a total GFA of 74,840 sq m, including 1,049 sq m of commercial uses. Nine ground floor townhouse units were proposed within the building podium with direct access from the street. The Revised Applications also incorporated a train derailment barrier along the east side of the new Anderson Avenue extension.

10The Revised Applications were appealed to the Tribunal on July 13, 2023. The Tribunal received correspondence from the Appellant in advance of the Hearing advising that the Parties had reached a settlement (“Settlement”) and requesting that the Tribunal convert the proceedings to a Settlement Hearing. The Parties in attendance confirmed that they consented to the conversion of the proceedings.

11In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a Settlment Hearing on the terms of the Settlement.

12The Settlement resulted in further revisions to the Revised Applications (“Settlement ZBA Application”, “Settlement SPC Application”, and collectively, “Settlement Proposal”), including the following:

a) a mixed use building comprised of approximately 74,579 squares metres of gross floor area, including approximately 1,214 square metres of non-residential area.

b) two towers with a maximum height to the top of roof, exclusive of mechanical, of 39-storeys (Towers A and B).

c) an additional level of underground parking, providing for a total of 4-levels of underground parking.

d) an increase in the total number of parking spaces to 768 parking, at a rate of 0.65 spaces per unit for residential units, while residential visitor and non-residential parking will be provided as a shared parking supply at a rate of 0.15 spaces per units which will be augmented by enhanced transportation demand management measures to support alternative modes of transportation.

e) an increase in the right-of-way cross sections designed for the proposed extensions of Edward Jeffreys Avenue and Anderson Avenue to 23.0 metres to accommodate a paved roadway as well as streetscape elements such as sidewalks/muti-use paths, street lighting and trees to implement the streetscape policies of the draft MRMJSP.

f) four ground floor townhouse units (larger family sized units consisting of a minimum of two bedroom and two bathrooms) located in Tower B provided for affordable housing.

13The Parties further advised the Tribunal that they were seeking final approval for the Settlement ZBA Application and the conditions of SPC approval (“Conditions”), and interim approval for the Settlement SPC Application, pending receipt by the Tribunal of the final Site Plan (“SP”) drawings.

LEGISLATIVE FRAMEWORK

14When considering appeals filed pursuant to ss. 34(11) and 41(12) of the Act, the Tribunal must have regard to the matters of provincial interest pursuant to s. 2 of the Act. Section 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 with the Growth Plan. The Tribunal must be satisfied that the Settlement ZBA Application conforms with the YROP, the COP and the TOP, as well as having regard for the Draft SP.

15In consideration of the statutory requirements set out above, the Tribunal must also be satisfied that the Applications represent good land use planning and are in the public interest.

EVIDENCE

16Prior to the commencement of the Hearing, the Tribunal received an Outline of Evidence of Andrew Ferancik in support of the Settlement Proposal. The Tribunal qualified Mr. Ferancik, on consent, to provide opinion evidence pertaining to this matter in the area of land use planning.

Planning Act

17It is Mr. Ferancik’s opinion that the Settlement Proposal has appropriate regard for the relevant matters of provincial interest in s. 2 of the Act as “the intense and mixed use built form” optimizes the use of public transit and active transportation networks, implements a range of housing types, encourages a sense of place within a populated and highly walkable area of the City, is an appropriate location for the development of new tall buildings, and will contribute to reduced greenhouse gas emissions through a reduced parking supply, making nearby transit and active transportation facilities the preferred mode of travel.

Provincial Policy Statement, 2020

18In his Outline of Evidence, Mr. Ferancik opined that the Settlement Proposal supports policies 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.4.3, 1.6.7 and 1.7.1 of the PPS pertaining to promoting efficient development and land use patterns, accommodating a range of housing types, requiring residential intensification, densities, and a mix of land use that efficiently use resources, infrastructure and services, promoting active transportation, and supporting long-term economic prosperity.

19It was Mr. Ferancik’s opinion that the Settlement Proposal is consistent with the PPS, as it represents a compact form of development that will introduce a variety of housing units to an underutilized site that is well-served by infrastructure, amenities, and facilities. In addition, it is “designed to a high standard of quality and provides generous setbacks and transitions to the public realm and surrounding uses”, and is “conducive to provincial goals of reducing automobile use, making efficient use of infrastructure, improving public health, and reducing urban sprawl”.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe

20In his Outline of Evidence, Mr. Ferancik further opined that the Settlement Proposal conforms with the Growth Plan, including contributing to the objective of prioritizing growth close to transit investments. He stated that the Settlement Proposal implements policies of the Growth Plan related to directing growth to settlement areas and achieving complete communities by providing a range of dwelling units sizes, providing convenient access to local stores and services, and being accessible by active transportation. It was his opinion that the proposed compact form contributes to a vibrant public realm along Markham Road and supports existing and planned transit infrastructure.

21Mr. Ferancik opined that the Settlement Proposal represents an appropriate form of development within the MTSA, which will “assist with achieving densities that will efficiently utilize the existing infrastructure and create a dynamic, complete community”, thereby supporting the viability of existing and planned rapid transit. He added that the Settlement Proposal will support the achievement of a complete community by providing for a compact, high-density development, and a range of non-residential uses within an MTSA.

Region of York Official Plan

22Mr. Ferancik opined that the Settlement Proposal conforms with the YROP policies as it “contributes to the Region’s intensification strategy by directing development to the Built-up Area/Urban Area, which is anticipated to accommodate future growth”.

23In particular, Mr. Ferancik noted that the housing policies of the YROP promote a diverse range and mix of housing options and densities that support the achievement of the minimum intensification, affordable housing, and density targets, and contribute to the creation of complete communities. He submitted that the Settlement Proposal will enable the development of an underutilized property with “an efficient and compact tall building in proximity to transit”, and provides “a range of housing options, including two-bedroom and three-bedroom units, to serve a variety of household sizes and provide affordable options as the economy changes”.

City of Markham Official Plan, 2014

24Mr. Ferancik advised that the Property is designated ‘Mixed Use High Rise’ in the COP, which permits a mix of residential, retail, restaurant, and service uses at a maximum building height of 15 storeys, unless otherwise specified in a secondary plan or site-specific policy. He added that, despite this designation, the Property is within an area identified in the COP to which the provisions of the TOP apply until the Draft SP is approved. As the Draft SP is not yet approved, the policies of the TOP continue to apply.

Town of Markham Official Plan, 1987

25Mr. Ferancik advised that lands designated ‘Commercial’ in the TOP are intended to be used primarily for a full rage of business establishments, including shopping facilities, personal and service commercial facilities, offices, and mixed-use developments. As the Settlement Proposal is a mixed-use development, comprised of commercial and residential uses, it was his opinion that the proposed use is contemplated by the ‘Commercial’ designation. He added that there are no policies in the TOP related to permitted heights or densities in the ‘Commercial’ designation.

26Mr. Ferancik stated that the Property is further designated ‘Community Amenity Area’ under the ‘Commerical’ land use category in the TOP. He noted that section 3.4.6.2 of the TOP explains that ‘Community Amenity Areas’ are to “function as significant and identifiable focal points for the areas served”, to “provide for a multi-use, multi-purpose centre offering a diverse range of retail, service, community, institutional and recreational uses serving nearby residential and/or business areas”, and to “accommodate office development and medium and high-density housing at appropriate locations”.

27Mr. Ferancik submitted that high density residential uses “are contemplated and permitted by the [TOP] in the ‘Community Amenity Area,’ as long as it is located within an appropriate location as indicated in Section 2.13”. It was his opinion that the Settlement Proposal implements the relevant policies of the TOP, is consistent with the design criteria and objectives, and “will preserve the planned function of the Community Amenity Area as a multi-use, multi-purpose centre for the surrounding neighbourhoods”. He futher added that it “introduces appropriate infill development in an emerging high-density mixed use area in close proximity to amenities and transit and is designed in a way that complements the existing and planned character of the area”.

Markham Road Mount Joy Corridor Secondary Plan

28Mr. Ferancik advised that lands designated ‘Mixed use High Rise’ in the Draft SP are intended to “deliver high density development to support a mix of uses and range of building types that optimizes opportunities for accessing existing and planned transit facilities and services at the Mount Joy GO Station”. He opined that the Settlement Proposal conforms to, and is highly responsive to, the policies related to development within the Draft SP area.

29Mr. Ferancik submitted that the Settlement Proposal will support and promote transit use by providing for up to 990 new housing units within an MTSA and providing the opportunity for a minimum of 1,200 sq m of pedestrian-oriented retail space. He added that the proposed building heights “of approximately 39-storeys (with potential for some variability) will provide an appropriate building height transition to the 45-storey buildings permitted within the Mount Joy GO Station Mixed Use Node”.

30With respect to the relevant policies in the Draft SP, Mr. Ferancik opined that the Settlement Proposal implements the objectives, and conforms to the policies related to: providing a range of housing types and tenures, and affordable housing options; the provision of community infrastructure and services; urban form and character; the design and arrangement of streetscapes; built form; height; active transportation; and intensification.

Zoning By-law 88-76, as amended

31As the Property is zoned ‘Highway Commerical (M.HC)’ under ZBL 88-76, Mr. Ferancik noted that a site-specific ZBA is required to implement any form of meaningful intensification on the Property, and that the draft ZBA had been prepared and vetted by the City.

Conclusions and Recommendations

32Mr. Ferancik proffered his professional planning opinion that the Settlement Proposal and corresponding planning instruments have appropriate regard to matters of provincial interest, are consistent with the PPS, conform with the Growth Plan, the YROP, the COP, and the TOP, and align with the Draft SP. He furthered that the ZBA and SP represent an appropriate and desirable form of land use planning and should be approved.

ANALYSIS AND FINDINGS

33The Tribunal accepts the uncontroverted testimony and evidence of Mr. Ferancik.

34The Tribunal finds that the Settlement Proposal will fit harmoniously with the existing and planned built form context and will enhance the area by intensifying an underutilized site which is well-served with municipal infrastructure and higher-order transit.

35The Settlement Proposal will be an efficient use of the land and will support the achievement of the PPS and Growth Plan policy directions, promoting intensification within a built-up urban area resulting in a desirable mixed-use intensification project having convenient access to transit, and providing a range of housing types.

36In consideration of the evidence of Mr. Ferancik and the revisions resulting in the Settlement Proposal, the Tribunal is satisfied that the ZBA and SP have sufficient and proper regard for those matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the ZBA and SP are consistent with the PPS, conform with the policies of the Growth Plan, the YROP, the TOP, the COP and the Draft SP, are appropriate and desirable from a land use planning perspective, and represent good land use planning.

37Therefore, the Tribunal approves the Settlement ZBA Application, and approves the Settlement SPC Application, in principle, pending receipt of the final SP drawings, and subject to the Conditions as set out in the Order.

ORDER

38THE TRIBUNAL ORDERS THAT the appeal is allowed and Zoning By-law 88-76, as amended, is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the Municipal Clerk of the City of Markham to assign a number to this By-law for record keeping purposes.

INTERIM ORDER

39THE TRIBUNAL ORDERS THAT the Site Plan appeal is allowed in part, on an interim basis, contingent upon receipt of the updated final Site Plan drawings to be filed with the Tribunal, and the Site Plan is hereby approved in principle, subject to the Conditions set out in Attachment 2.

40The Tribunal will withhold the issuance of its Final Order of the Site Plan appeal contingent upon receipt of the final updated Site Plan drawings.

41The Panel Member will remain seized for the purposes of reviewing and approving the final Site Plan drawings and the issuance of the Final Order.

42If the Parties do not submit the final Site Plan drawings, and do not request the issuance of the Final Order, by Monday, June 17, 2024, the Appellant 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 Site Plan drawings and issuance of the Final Order by the Tribunal.

43The Tribunal may, as necessary, arrange for the further attendance of the Parties by Telephone Conference Call to determine additional timelines and deadlines for the submission of the final form of the Site Plan drawings, and the issuance of the Final Order.

“C. I. Molinari”

C. I. MOLINARI 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