Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 26th, 2024

CASE NO.: OLT-23-000211

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

Applicant and Appellant: 133 Erskine GP Inc. and QRES VI (Property) Inc.

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

Description: To permit redevelopment of property to 31-storey residential building with approximately 322 residential units

Reference Number: 21 251207 NNY 15 OZ

Property Address: 133-141 Erskine Avenue

Municipality/UT: Toronto

OLT Case No.: OLT-23-000211

OLT Lead Case No.: OLT-23-000211

OLT Case Name: 133 Erskine GP Inc. and QRES VI (Property) Inc. v. Toronto (City)

BEFORE: ) ) Wednesday, the ) 26th day of June, 2024

THIS MATTER, in respect of the lands municipally known as 133-141 Erskine Avenue in the City of Toronto, having come for a Case Management Conference on August 1, 2023 before the Ontario Land Tribunal (the “Tribunal”) and the Tribunal having issued a Decision on October 13, 2023; and

THE TRIBUNAL having been advised by the Parties on February 17, 2024 that a full uncontested settlement had been reached, on consent;

AND THE TRIBUNAL having conducted a settlement hearing, in writing, on April 17, 2024;

AND THE TRIBUNAL having read the materials filed, on consent of the Parties, including the sworn affidavit of Andrew Ferancik, MCIP, RPP, qualified to give opinion evidence in the area of land use planning and the draft version of the Zoning By-law Amendment attached hereto as Attachment 1 to this Interim Order;

AND THE TRIBUNAL having reviewed and accepted the uncontradicted land use planning opinion evidence of Mr. Ferancik, is satisfied the settlement proposal redevelops an underutilized site within a Provincially designated Urban Growth Centre at a height and density level within the range contemplated under the Secondary Plan. The proposal contributes towards increasing the diversity in the supply and mix of housing options in the local neighbourhood. It will also provide for a compact built form that promotes the use of active transportation and supports transit services. The settlement proposal addressed issues raised by the City by modifying several setbacks, podium heights, tower floorplate, and proposing a mixed use building instead of solely residential, among other things;

AND THE TRIBUNAL having found on the basis of the foregoing, that the Zoning By-Law Amendment has regard for matters of provincial interest as set out in s. 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020, conforms with the Growth Plan for the Greater Golden Horseshoe, 2020, the City of Toronto Official Plan, the Yonge-Eglinton Secondary Plan, as approved by the Province in June of 2019, and represents good planning.

NOW THEREFORE

THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified below, and the Zoning By-Law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.

The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:

1. The Tribunal has received, and approved, the Zoning By-Law Amendment submitted in a final form, confirmed to be satisfactory to the Interim Chief Planner and Executive Director, City Planning and the City Solicitor;

2. The Tribunal is advised that a Limiting Distance Agreement has been entered between the landowners of 133 Erskine Avenue, 141 Erskine Avenue and the City, to be registered on title to the applicable properties, that would prevent the erection of a building above existing height permissions on the 141 Erskine Avenue property to the extent of the separation (or such lesser extent as determined by the Interim Chief Planner and Executive Director, City Planning) between the existing building on 141 Erskine Avenue and the Revised Proposal on 133 Erskine Avenue to the satisfaction of the Interim Chief Planner and Executive Director, City Planning and the City Solicitor;

3. The Tribunal is advised that the Applicant/Appellant, 133 Erskine GP Inc. and QRES VI (Property) Inc. (“Applicant”), has, at its sole cost and expense:

   i. 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;

   ii. secured the design and 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;

   iii. ensured that implementation of the accepted Engineering Reports does not require changes to the proposed amending By-laws or that any required changes have been made to the proposed amending By-laws to the satisfaction of the Interim Chief Planner and Executive Director, City Planning and the City Solicitor, including the use of a Holding ("H") By-law symbol regarding any new municipal servicing infrastructure or upgrades to existing municipal servicing infrastructure, as may be required;

   iv. submitted a revised Transportation Impact Study, including Transportation Demand Management Plan to the satisfaction of the Interim Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services and that such matters arising from such study be secured if required;

   v. submitted an updated Heritage Impact Assessment to the satisfaction of the Senior Manager, Heritage Planning, City Planning;

   vi. submitted an updated Landscape Plan demonstrating sufficient soil volume for tree growth satisfactory to the Director, Urban Forestry, Parks Forestry and Recreation and the Interim Chief Planner and Executive Director, City Planning;

   vii. submitted an updated Pedestrian Level Wind Study, and secured any required mitigation measures in the Zoning By-law Amendment (where appropriate), to the satisfaction of the Interim Chief Planner and Executive Director, City Planning; and

   viii. submitted a Sun/Shadow Study updated Pedestrian Level Wind Study, and secured any required mitigation measures in the Zoning By-law Amendment (where appropriate), to the satisfaction of the Interim Chief Planner and Executive Director, City Planning;

4. The Tribunal is advised that City Council has approved the Rental Housing Demolition application (Application 21 251207 NNY 15 OZ) under Chapter 667 of the Toronto Municipal Code pursuant to section 111 of the City of Toronto Act, 2006, to permit the demolition of the existing rental 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 Interim Chief Planner and Executive Director, City Planning and the City Solicitor, securing the following:

   i. The replacement of the existing residential rental units on the lands;

   ii. The rents, rental tenure, unit mix, and unit sizes of the replacement rental units;

   iii. An acceptable Tenant Relocation and Assistance Plan addressing the right for existing tenants to return to replacement rental units 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 Interim Chief Planner and Executive Director, City Planning; and

   iv. Any other rental housing-related matters in conformity with Policy 3.2.1.6 of the Toronto Official Plan and Chapter 667 of the Toronto Municipal Code.

The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

If the Parties do not submit the final drafts of the Zoning By-Law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out above have been satisfied, and do not request the issuance of the Final Order, by December 1, 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 Zoning By-Law Amendment and issuance of the Final Order by the Tribunal.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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

City of Toronto By-law xxx-2024

Authority: Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order issued on [date] in Tribunal File [-]

CITY OF TORONTO BY-LAW ###-2024

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2024 as 133 Erskine Avenue Avenue

Whereas the Ontario Land Tribunal, by its Decision issued on [date] and its Order issued on [date], in respect of Tribunal File [-], upon hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P13, as amended, determined to amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year [insert year] as [insert all addresses]; and

Whereas the Ontario Land Tribunal has the authority pursuant to Section 34 of the Planning Act, as amended, to pass this By-law; and

Whereas pursuant to Section 39 of the Planning Act, as amended, the council of a municipality may, in a by-law passed under Section 34 of the Planning Act, authorize the temporary use of land, buildings or structures for any purpose set out therein that is otherwise prohibited in the by-law.

The Council of the City of Toronto enacts:

The Ontario Land Tribunal Orders:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram [-] attached to this By-law.

2. 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.

3. Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.10 respecting the lands outlined by heavy black lines from a zone label of R (d2.0) (x912) to a zone label of R (d2.0) (x [exception number]) as shown on Diagram [-] attached to this By-law.

4. Zoning By-law 569 -2013, as amended, is further amended by amending the Height Overlay Map in Section 995.20 for the lands subject to this By-law, from a height and storey label of HT [-] to a height label of HT [-], as shown on Diagram [-] attached to this By-law.

5. Zoning By-law 569-2013, as amended, is further amended by [adding] Article 900.[-].[-] Exception Number [-] so that it reads:

([assigned exception number]) Exception [zone symbol] ([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:

(XXX) Exception R XXX

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 133 Erskine Avenue, as shown on Diagram 1 of By-law [Clerks to insert by- law ##], if the requirements of By-law [Clerks to insert by-law ##] are complied with, a building or structure may be constructed, used or enlarged in compliance with Sections (B) to (X) below;

(B) Despite Regulation 10.5.40.10 (1) the height of a building or structure is the distance between the Canadian Geodetic Datum of 158.30 metres and the elevation of the highest point of the building or structure;

(C) Despite Regulation 10.10.40.10 (1), 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 supply by-law ##];

(D) Despite Regulations 10.5.40.10 (2) and (3) and (C) above, the following building elements and structures are permitted to project vertically beyond the height limits specified on Diagram 3 attached to By-law [Clerks to insert By-law ##]:

(i) a parapet, roof drainage components, or thermal and waterproofing assembly located at each of the roof levels of the building, all of which may project up to a maximum of 1.8 metres;

(ii) safety railings, balcony or terrace privacy screens, fences and guardrails at each of the roof levels of the building, all of which may project up to a maximum of 2.0 metres;

(iii) structures on the roof of any part of the building used for outside or open air recreation, green roof elements, planters, wind mitigation elements, noise mitigation elements, screens, trellises, landscape features, telecommunications equipment and antennae,and partitions dividing outdoor recreation areas, all of which may project up to a maximum of 3.0 metres; and

(iv) mechanical penthouses, equipment used for the functional operation of the building, such as electrical, utility, mechanical and ventilation equipment, stairs, stair enclosures, window washing equipment, lightning rods, exhaust flues, vents, ventilating equipment, chimney stack, and garbage chute overruns, and structures that enclose, screen or cover the equipment, structures and parts of a building listed in this section, all of which may project up to a maximum of 7.0 metres;

(E) Regulation 10.5.40.10(4) regarding horizontal limits on elements for functional operation of a building does not apply.

(F) Despite Regulation 10.10.40.50 (1), a building with 20 or more dwelling units must provide amenity space on the lot at the following rate:

(i) At least 1.49 square metres for each dwelling unit as indoor amenity space; and

(ii) At least 1.59 square metres for each dwelling unit as outdoor amenity space;

(G) Regulation 10.5.50.10(4) regarding minimum landscaping requirements shall not apply to any apartment building or mixed use building on the lot;

(H) Regulation 10.5.50.10(5) requiring a 1.5-metre wide strip of soft landscaping along any part of a lot line abutting another lot in the Residential Zone category does not apply;

(I) Clause 10.5.60.20 regarding the setback of ancillary structures does not apply;

(J) Regulation 10.5.80.30 (1) regarding parking space separation from the main walls of an apartment building does not apply;

(K) Regulation 10.10.40.30 (1) regarding maximum building depth does not apply;

(L) Despite Regulation 10.10.40.40(1), the permitted maximum gross floor area of all buildings and structures on the lot is 23,880 square metres, of which:

(i) The permitted maximum gross floor area for residential uses is 23,810 square metres; and

(ii) The permitted minimum gross floor area for non-residential uses is 70 square metres;

(M) Despite Clauses 10.5.40.70 and 10.10.40.70, the required minimum buildings setbacks are as shown on Diagram 3 of By-law [Clerks to insert By-law ##];

(N) Despite Regulations 10.5.40.60(1), (2), (3), (7), and (8), and (L) above, the following building elements and structures are permitted to encroach into the required building setbacks shown on Diagram 3 of By-law [Clerks to insert By- law ##];

(i) lighting fixtures, architectural features, structural/non-structural architectural columns/piers, canopies, window washing equipment, parapets, parapet flashing, roof and terrace scuppers, roof overhang, gutter, downspout, trellises, window sills, guardrails,balustrades, railings, wind mitigation and acoustic screens and features, planters, wheel chair ramps, mechanical exhaust and intake components, gas meters, underground garage ramps and their associated structures and elements, retaining walls, fences, Siamese connections and privacy screens, all of which may encroach a maximum of 1.5 metres; and

(ii) balconies may encroach a maximum of 1.5 metres as follows:

(A) Any main walls from the first storey to the fourth storey

(B) Only where permitted by a Balcony Zone of Diagram 3 of By-law [Clerks to insert By-law ##] from the fourth storey to the thirty- fifth storey;

(O) Despite Regulation 200.5.1(3), a drive aisle may have a minimum with of 5.6 metres.

(P) Despite Regulation 200.5.10.1 and Table 200.5.10.1, parking spaces must be provided and maintained on the lot in accordance with the following requirements:

(i) A minimum of 0 residential occupant parking spaces for each dwelling unit, but not exceeding the following permitted maximums:

a. 0.3 for each bachelor dwelling unit up to 45 square metres and 1.0 for each bachelor dwelling unit greater than 45 square metres;

b. 0.5 for each one bedroom dwelling unit;

c. 0.8 for each two bedroom dwelling unit; and

d. 1.0 for each three or more bedroom dwelling unit;

(ii) A minimum of 5 up to a maximum of 32 visitor parking spaces;

(Q) Despite Regulation 200.5.1.10 (2), a maximum of 10% of parking spaces may have minimum dimensions of:

(i) A length of 5.3 metres;

(ii) A width of 2.4 metres; and

(iii) A vertical clearance of 1.7 metres;

(R) Despite Regulations 200.15.1(1) to (3) and By-law 579-2017, accessible parking spaces must be provided and maintained in accordance with the following:

a. An accessible parking space must have the following minimum dimensions:

i. Length of 5.6 metres;

ii. Width of 3.4 metres; and

iii. Vertical clearance of 2.1 metres;

b. The entire length of an accessible parking space must be adjacent to a 1.5 metre wide accessible barrier free aisle or path as shown on Diagram 1 and Diagram 2 of By-law 579-2017;

(S) Regulation 200.15.1 (4) regarding the location of accessible parking spaces does not apply;

(T) Despite clause 220.5.10.1, loading spaces must be provided and maintained on the lot as follows:

(i) One “Type G” loading space;

(U) Despite Regulation 230.5.10.1(5)(A) and Table 230.5.10.1(1), bicycle parking spaces must be provided and maintained on the lot in accordance with the following:

(i) A minimum of 0.9 “long-term” bicycle parking spaces must be provided for each dwelling unit; and

(ii) A minimum of 0.1 “short-term” bicycle parking spaces must be provided for each dwelling unit;

(V) Regulation 230.5.1.10(12) regarding bicycle maintenance facilities does not apply

(W) Regulation 230.40.1.20(2) regarding location requirements for “short-term” bicycle parking spaces relative to a building entrance does not apply.

(X) In addition to the permitted uses identified in Regulation 10.10.20.20 (1), pet services, a veterinary hospital, a personal service shop, an art gallery, an office, a medical office, a take-out eating establishment, outdoor patio, and an eating establishment are permitted uses on the lot;

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

6. None of the provisions of Zoning By-law 569-2013, as amended, or this Bylaw apply to prevent the erection and use of a temporary sales or leasing office on the lot, used exclusively for the initial sale and/or initial leasing of dwelling units on the lands to which this By-law applies for a period of 3 years from the date this By-law comes into full force and effect, after which this temporary use permission expires.

7. Notwithstanding any severance, partition or division of the lands, the provisions of this By-law shall apply to the whole of the lands, if no severance, partition or division had occurred.

Ontario Land Tribunal Decision issued on [date] and Ontario Land Tribunal Order issued on [date] in Tribunal File [-]