Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 28, 2024

CASE NO(S).: OLT-22-004590

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

Applicant and Appellant: 355 Adelaide Nominee Inc.

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

Purpose: To permit a 48-storey mixed-use building

Property Address/Description: 353 and 355 Adelaide St. W., 46 Charlotte St., and 16 Oxley St.

Municipality: City of Toronto

Municipality File No.: 20 160837 STE 10 OZ

OLT Case No.: OLT-22-004590

OLT Lead Case No.: OLT-22-004590

OLT Case Name: 355 Adelaide Nominee Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Applicant and Appellant: 355 Adelaide Nominee Inc.

Subject: Site Plan

Purpose: To permit a 48-storey mixed-use building

Property Address/Description: 353 and 355 Adelaide St. W., 46 Charlotte St., and 16 Oxley St.

Municipality: City of Toronto

OLT Case No.: OLT-22-004591

OLT Lead Case No.: OLT-22-004590

Heard: June 7, 2024, by video hearing

APPEARANCES:

Parties Counsel

355 Adelaide Nominee Inc. (“Appellant”) J. Park A. Frank (in absentia)

City of Toronto (“City”) D. Elmadany M. Piel (in absentia)

DevGreat Inc. (“DevGreat”) J. Cheng C. Lantz (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY MEMBERS G. ROSS AND A. SAUVE ON JUNE 7, 2024 AND INTERIM ORDER OF THE TRIBUNAL

LINK TO ORDER

INTRODUCTION AND BACKGROUND

1This Decision stems from a Settlement Hearing (“Settlement”) related to the Appellant’s applications for a Zoning By-law Amendment to the City’s Zoning By-law No. 569-2013 (“ZBL Appeal”) and an application for Site Plan Approval to permit the redevelopment of lands municipally known as 353-355 Adelaide Street West, 46 Charlotte Street, and 16 Oxley Street in the City (the “Subject Lands”).

2City Council rejected the Appellant’s February 2023 resubmission of the Rezoning application, which included changes to the building height - increased to 58 Stories, a total of Gross Floor Area of 32,857 square metres, and a density of 25.77 Floor Space Index. This included an 11-storey base building and a 47-storey tower element.

3At the February 10, 2023, Case Management Conference (“CMC”), DevGreat, the Owners of lands municipally known as 101-105 Spadina Avenue and 363 Adelaide Street West, were granted Party status to the Appeal. Participant status was granted to Alexander Perel, Diana Petramala, Robert Davidovitz. Sarah Merredew was previously granted Participant status at the June 18, 2023 CMC.

4The Appellant, City and the Parties to the Appeal have since had discussions to address issues with the ZBL Appeal and Site Plan applications, including the proposed mix of uses, build form height massing, tower separation and the public realm design. On November 29, 2023, a new proposal with significant notable changes were submitted. The notable changes included:

i. Reconfiguration of two building elements, consisting of a 58-storey building fronting Adelaide Street West, Charlotte Street and a 12-storey building fronting Oxley Street. The two buildings were joined by a one-storey connector and shared loading, bicycle parking and amenity areas. There were set backs, stepbacks, recess changes, chamfering, radial separation increases in various subject areas to address concerns related to the walkability, to respect to the integrity of the heritage building and address many of the concerns of the written participant statements;

ii. The placement of the retail space, at grade, was shifted to the northeast corner of Adelaide Street West and Charlotte Street. An indoor amenity room is now located at the northwest corner of the building at grade;

iii. The base building office space on levels 2, 3 and 4 were replaced with residential dwelling units;

iv. The vehicle access along Oxley Street was removed in favour of a residential lobby for the southerly 12-storey building element;

v. The loading and servicing access on Charlotte Street remained; and

vi. The 39-storey tower on the DevGreat lands now has a minimum 20.0 metre radial separation distance from the northwest corner, the tower floor plate was increased the number of vehicle parking spaces was reduced to zero.

SETTLEMENT

5On March 4, 2024, the Appellant submitted a Settlement offer to resolve the Appeal with the City. The terms were set out in a letter outlining the revisions made to the proposed development and the proposed conditions of the Settlement. Additional materials provided included Architectural Plans, a Heritage Impact Assessment and a Pedestrian Level Wind Study.

6The Settlement was provisionally approved by City Council with conditions.

7The Parties are proposing a Settlement that includes an Interim Order for the ZBL Appeal and adjourning the Site Plan appeal sine die which will likely be withdrawn once there is a Final Order for the ZBL Appeal.

EVIDENCE AND ANALYSIS

8The Tribunal qualified Ryan D. Doherty as an Expert Witness (“Expert”) in Land Use Planning on request of the Parties. The Expert was the only witness presented at the Settlement.

9The following have been marked as Exhibits to this Settlement:

i. Exhibit 1 – Affidavit of Ryan D. Doherty;

ii. Exhibit 2 – Visual Evidence Book; and

iii. Exhibit 3 – Draft Conditions.

10The Expert opined that the Settlement is consistent with Provincial interests, as set out in s. 2 of the Planning Act and conforms to the Provincial Policy Statement, 2020 (“PPS”). The Expert provided evidence that the location of the Subject Lands is identified for growth and development – in particular as the Subject Lands fall within an identified intensification area. The Expert also testified that the Settlement provides high-density development and new housing which includes a full range of compact built form housing, inclusive of affordable housing, and uses existing infrastructure. The Expert opined that access to higher order transit and existing streetcar service adequately addresses the current and future needs to walkable access to transit. The Expert further opined that the Settlement also conserves valued heritage components of the development considering cultural and architectural interests, as well as efficient use and conservation of energy, water and waste management which have been accounted for in the plan.

11The Expert provided evidence that the proposed development also conforms to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and is compliant with it’s guiding principals as set out in s. 1.2.1. The Expert opined that the proposal optimizes the use of both land and infrastructure, in locations targeted for strategic urban growth, and falls within higher order transit areas. The Expert testified that the Settlement also includes a mixed use of housing and affordable housing options.

12The Expert provided evidence that the proposed development conforms to the City’s Official Plan (“OP”) with the identification of areas designated for regeneration, including the Downtown and Central Waterfront Areas. The Expert further testified that it is notable that in this proposed development, the concentration of people and jobs are in areas supported by transit, and where walking and cycling can be encouraged. The Expert also provided evidence that the proposed development promotes energy efficiency and green spaces which supports neighbourhoods and conforms to the public realm and built form policies in the OP. The Expert proffered that the proposed development also accounts for the OP’s building facades and grade relationships within the public realm. Concerning the integrity of the heritage considerations, as noted in Policy 3.1.6(6) of the OP, the Expert opined that the proposed development encourages adaptive re-use of properties such as the portion of the development that includes the Gelber Building at 353-355 Adelaide Street West.

13The Expert provided evidence that the Settlement conforms to Official Plan Amendment 352 that introduced a Site and Area Specific Policy which applies to the Downtown area and the relationship between tall buildings, the viability of where they can be located, and addresses heritage easements.

14The Expert provided evidence that the Settlement conforms to The Downtown Secondary Plan which promotes similar attributes as seen in the above Growth Plan and PPS – in particular as it relates to the promotion of two- and three-bedroom units.

15The Expert also provided evidence that the Settlement conforms to the King-Spadina Secondary Plan – in particular as it relates to removal of existing surface parking around heritage buildings and mid-block connectors, and the new Vertical Communities in the Growing Up Plan.

16The Expert reviewed the Participant Statements and the concerns raised therein. The concerns generally related to the proposed height and massing, the relationship between the proposed building and both the public realm and adjacent properties, traffic impacts, and the impact of increased density. The Tribunal finds that the Settlement addresses these concerns.

FINDINGS

17Having received no contrary evidence, the Tribunal accepts the evidence of the Expert and agrees with the conclusions.

18The Tribunal finds that the Applications, as reflected in the Settlement and which will facilitate the proposal generally in accordance with the architectural drawings as reflected in Attachment 1, are consistent with the PPS, conform with the Growth Plan, the OP, the Downtown Plan, the King-Spadina Secondary Plan and has appropriate regard for the relevant urban design guidelines.

INTERIM ORDER

19THE TRIBUNAL ORDERS THAT the appeals by 355 Adelaide Nominee Inc. (the “owner”), for the Zoning By-law Amendment is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [20] below and the Zoning By-law Amendment set out in Attachment 2 to this Interim Order is hereby approved in principle.

20The Tribunal will withhold issuance of its Final Order contingent upon:

a. confirmation of the City Solicitor of the following conditions:

i. the Tribunal has received, and approved, the final form and content of the Zoning By-law Amendment confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor, which will include the minimum number of two bedroom and three bedroom and additional two and three-bedroom requirements in the Downtown Plan;

ii. the Tribunal is advised that the owner has, at its sole cost and expense 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;

iii. 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; and

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

v. the Tribunal is advised that the owner has provided a detailed Conservation Plan prepared by a qualified heritage consultant that is substantially in accordance with the conservation strategy set out in the Heritage Impact Assessment for 355 Adelaide Street West, prepared by ERA Architects Inc., dated February 9, 2024, to the satisfaction of the Senior Manager, Heritage Planning;

vi. the Tribunal is advised that the owner has entered into a Heritage Easement Agreement with the City for the property at 355 Adelaide Street West substantially in accordance with plans and drawings prepared by Arcadis Architects (Canada Inc.), dated February 29, 2024, submitted with the Heritage Impact Assessment prepared by ERA Architects Inc., dated February 9, 2024, subject to and in accordance with the approved Conservation Plan required above, to the satisfaction of the Senior Manager, Heritage Planning including execution of such agreement to the satisfaction of the City Solicitor; and

vii. the Tribunal is advised that the owner has withdrawn its site-specific appeal of Official Plan Amendment 486.

b. confirmation of the Appellant and DevGreat Inc. of the following:

i. the Tribunal is advised that the form of easement over a portion of DevGreat Inc.’s adjacent property (or the adjacent land to be acquired by DevGreat Inc.) to be conveyed to the City has been settled among the City, the Appellant and DevGreat Inc.;

ii. the Tribunal is advised that the necessary construction agreements have been settled, executed and delivered by the Appellant and DevGreat Inc.;

iii. the Tribunal is advised that the Appellant and DevGreat Inc. have executed and delivered to each other and to the City consents in the form agreed by the Appellant and DevGreat Inc. to the installation of tie-backs on their respective properties;

iv. the Tribunal is advised that the reciprocal agreement between the Appellant and DevGreat Inc. has been settled, executed and delivered by the Appellant and DevGreat Inc.;

v. the Tribunal is advised that the easement over a portion of the Appellant property in favour of DevGreat Inc.’s land (and/or land to be acquired by DevGreat Inc.) has been executed and delivered and registered on title to the subject property in priority to all cautions, leases, financial encumbrances and options to purchase with all necessary consents having been obtained as evidenced by a certificate issued under subsection 53(42) of Planning Act (Ontario); and

vi. the Tribunal is advised that the Limiting Distance Agreement over a southerly portion of the subject lands has been executed and delivered by the Appellant, DevGreat Inc. and the City, and has been registered on title to the subject property in the priority required by the City; or

c. alternately, that arrangements satisfactory to both DevGreat Inc. and the Appellant have been made in respect of the matters in (b) above.

21The Panel Members will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment to authorize the issuance of the Final Order subject of the requested order above.

22If 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 in paragraphs [20] and [21] above have been satisfied, and do not request the issuance of the Final Order by Tuesday, July 1, 2025, 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 draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal.

23The Tribunal may be spoken to in the event that any difficulties arise in satisfying the above condition for the issuance of the Tribunal's Final Order.

“G. Ross”

G. ROSS MEMBER

“A. Sauve”

A. SAUVE 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

ATTACHMENT 2