Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 22, 2024

CASE NO.: OLT-23-000647

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

Applicant/Appellant: First Capital Realty Inc.

Subject: Request to amend the Official Plan – Failure to make a decision

Description: To facilitate the development of a 24-storey residential building

Reference Number: 22 170531 NNY 08 OZ

Property Address: 34 – 70 Montgomery Avenue

Municipality: City of Toronto

OLT Case No.: OLT-23-000647

OLT Lead Case No.: OLT-23-000647

OLT Case Name: First Capital Realty Inc. v. Toronto (City)

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

Applicant/Appellant: First Capital Realty Inc.

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

Description: To facilitate the development of a 24-storey residential building

Reference Number: 22 170531 NNY 08 OZ

Property Address: 34 – 70 Montgomery Avenue

Municipality: City of Toronto

OLT Case No.: OLT-23-000648

OLT Lead Case No.: OLT-23-000647

BEFORE:

A. MASON MEMBER

Monday, the 22nd July, 2024

THESE MATTERS involving appeals under subsections 22(7) and 34(11) of the Planning Act, R. S.O. 1990, c. P. 13, as amended, regarding the failure of the City of Toronto to make a decision within the prescribed time period in respect to applications for an Official Plan Amendment and Zoning By-Law Amendment to originally facilitate a 24-storey residential mixed-use building with 306 residential dwelling units and 535 square metres of grade-related retail at 24-74 Montgomery Avenue, having come before the Tribunal for a written hearing to consider a settlement proposal proffered on consent of the Parties on June 27, 2024;

AND THE TRIBUNAL, having received and considered the visual and written materials filed on consent of the Parties, including the affidavit and exhibits, sworn and dated June 11, 2024, of Katie Hickey, a member of the Ontario Professional Planners Institute and Canadian Institute of Planners, in the area of land use planning;

AND THE TRIBUNAL, having reviewed and considered the uncontroverted affidavit evidence of Katie Hickey on the nature and scope of the revisions that have led to the settlement proposal, including:

i. a 27-storey residential mixed-use building inclusive of a 6-storey podium comprised of 353 residential dwelling units and 550 square metres of non-residential GFA;

ii. a redesigned podium to include a colonnade along the south, east and west sides of the building to achieve greater setbacks and opportunities for tree planting on Montgomery Avenue;

iii. revised programming on the ground floor to include commercial space along the majority of the Montgomery Avenue and Duplex Avenue frontages, along with the residential lobby and ancillary residential and commercial uses such as long-term bike storage and servicing areas;

iv. podium step backs on Levels 2-6 of varying depths;

v. modifications to the tower element step backs;

vi. incorporation of specific performance standards, including;

a. securing of ten affordable housing units for a minimum of 25 years through agreement with the City of Toronto as set out more specifically in the proposed revised Official Plan Amendment;

b. provision of amenity space at a combined rate of 4.0 square meters each dwelling unit; and

c. provision of a minimum of 15 percent of the units as 2-bedroom units, a minimum of 10 percent of the units as 3-bedroom units, and additional 15 percent of the units to be provided as a combination of 2-bedroom and 3-bedroom units, or units that can be converted to 2-bedroom and 3-bedroom units through the use of adaptable design measures.

AND THE TRIBUNAL, having accepted the uncontested evidence of Katie Hickey, finds that the proposed settlement and the revised instruments giving effect thereto:

i. have appropriate regard for matters of provincial interest under s. 2 of the Planning Act, in particular by optimizing the use of existing land and infrastructure within a settlement area;

ii. are consistent with the Provincial Policy Statement 2020, conforms to and does not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, by supporting intensification in underutilized sites in built-up urban areas that are well served by municipal infrastructure and higher-order transit;

iii. are in conformity with the City of Toronto Official Plan that was in force at the time of the initial applications in June 2022 and the policies of the Yonge-Eglinton Secondary Plan (OPA 405), as they would facilitate a proposed development that will fit in with the existing and approved buildings within the Montgomery Square Character Area,

iv. represent good planning and are in the public interest by implementing a high-quality transit-oriented mixed-use proposal that would result in the introduction of additional housing, including affordable housing units, within the Yonge-Eglinton Area.

NOW THEREFORE:

THE 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 paragraphs i-xii below, and the Official Plan Amendment and Zoning By-Law Amendment set out in Attachment 1 and 2 respectively to this Interim Order, are hereby approved in principle.

AND THE TRIBUNAL will withhold the issuance of its Final Order contingent upon confirmation from the City Solicitor, of satisfaction of the following pre-requisite matters:

i. the final form and content of the Official Plan Amendment and Zoning By-law Amendments are to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

ii. City Council, or the Chief Planner and Executive Director, City Planning, where authorized to do so, has approved a Rental Housing Demolition application 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 one existing rental dwelling unit at 70 Montgomery Avenue and the Applicant/Appellant has provided an undertaking to the City to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing an acceptable Tenant Relocation and Assistance Plan addressing financial compensation and other assistance to lessen hardship;

iii. the Applicant/Appellant has entered into one or more agreements, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, to ensure the provision of the affordable housing in accordance with the terms of Settlement Offer;

iv. the Applicant/Appellant has submitted updated sun/shadow and pedestrian level wind studies, including the identification of any required mitigation measures to be secured in the Zoning By-law Amendment and through the site plan process to the satisfaction of the Chief Planner and Executive Director, City Planning;

v. the Applicant/Appellant has submitted a revised Travel 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 such matters arising from such study be secured if required through the implementing Zoning By-law Amendment and, or Site Plan approval;

vi. the Applicant/Appellant has satisfactorily addressed the Transportation Services matters in the Engineering and Construction Services Memorandum dated March 10, 2023, any outstanding issues raised by Transportation Services, arising from the ongoing technical review (including provision of acceptable reports and studies including a revised Transportation Impact Study, including all requested revisions to the satisfaction of the General Manager, Transportation Services), as they relate to the Official Plan Amendment and Zoning By-law Amendment applications to the satisfaction of the General Manager, Transportation Services;

vii. the Applicant/Appellant has satisfactorily addressed matters from Engineering and Construction Services as contained in the Engineering and Construction Services Memorandum dated March 10, 2023, or any outstanding issues raised by Engineering and Construction Services, arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

viii. the Applicant/Appellant has satisfactorily addressed matters from Parks, Forestry and Recreation as contained in the Parks, Forestry and Recreation Memorandum dated January 4, 2023, or any outstanding issues raised by Parks, Forestry and Recreation arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry and Recreation;

ix. the Applicant/Appellant has satisfactorily addressed matters from Tree Protection and Plan Review, Urban Forestry Memorandum dated October 18, 2022, or any outstanding issues raised by Urban Forestry, arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry and Recreation;

x. the Applicant/Appellant has submitted to the Chief Engineer and Executive Director, Engineering and Construction Services for review and acceptance, prior to final approval of the rezoning, a Functional Servicing Report to determine the storm water runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development;

xi. the Applicant/Appellant has made satisfactory arrangements with Engineering and Construction Services and entered into the appropriate financially secured agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the accepted Functional Servicing Report accepted by the Chief Engineer and Executive Director, Engineering and Construction Services; and,

xii. the Applicant/Appellant has provided space within the development for installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Toronto Municipal Code Chapter 681, Sewers, Section 681-10.

AND THE TRIBUNAL FURTHER orders that the member will remain seized for the purposes of reviewing and approving the final drafts of the Official Plan Amendment and Zoning By-Law Amendment and the issuance of the Final Order.

AND THE TRIBUNAL FURTHER orders that if the Parties do not submit the final drafts 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 paragraphs i-xii directly above have been satisfied, and do not request the issuance of the Final Order by Wednesday, January 8, 2025, 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 Amendment and issuance of the Final Order by the Tribunal.

AND THE TRIBUNAL FURTHER orders that it may, as necessary, arrange the further attendance of the Parties to determine the additional timelines and deadlines for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“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”

Attachment “2”