Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 31, 2024
CASE NO(S).: OLT-22-004377
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 120 Metcalfe JV
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To facilitate the redevelopment of the property with an 8-storey mixed-use building
Reference Number: OPA-2021-01
Property Address: 120 Metcalfe Street, 101 & 103 Mosley Street
Municipality/UT: Aurora/York
OLT Case No.: OLT-22-004377
OLT Lead Case No.: OLT-22-004377
OLT Case Name: 120 Metcalfe JV v. Aurora (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 120 Metcalfe JV
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To facilitate the redevelopment of the property with an 8-storey mixed-use building
Reference Number: ZBA-2021-01
Property Address: 120 Metcalfe Street, 101 & 103 Mosley Street
Municipality/UT: Aurora/York
OLT Case No.: OLT-22-004378
OLT Lead Case No.: OLT-22-004377
Heard: October 20, 2023 by Video Hearing May 21, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 120 Metcalfe JV | Max Laskin |
| Town of Aurora | Chantal deSereville |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. GOPIKRISHNA ON MAY 21, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
BACKGROUND
1120 Metcalfe Inc. (“Appellant”) is the owner of 120 Metcalfe St. and 101-103 Mosley Street (“Subject Site” or “Subject Lands”), all of which are neighbouring lots in the Town of Aurora (“Town”), located in the Region of York. In December of 2020, the Appellant applied to the Town to amend the Town of Aurora Official Plan (“OP”), as well as to amend By-law 6000-17 (“ZBL”) to facilitate the redevelopment of the property with an eight-storey (8-storey) mixed-use building. The Appellant appealed the City’s lack of a decision on the applications (“Applications”) to the Tribunal on August 23, 2022. The Tribunal scheduled a Hearing to be heard by way of videoconference on October 20, 2023. Subsequent to the filing of the appeal, the Appellant reached a settlement with the Town.
2The Appellant and the Town participated in the Hearing, which was completed on October 20, 2023, as a result of which the Tribunal approved the settlement proposal in principle.
3On November 24, 2023, the Appellant contacted the Tribunal to request that no written decision be issued, notwithstanding the completion of the Hearing on October 20, 2023, to “facilitate further discussions with the Town resulting in substantial modifications to the settlement. The Appellant submitted an updated settlement (“Settlement”) on January 5, 2024, resulting in the Tribunal’s scheduling of a second Hearing, held May 21, 2024.
4At the commencement of the Hearing of May 21, 2024, the Parties and the Tribunal had a discussion to understand the relationship between the evidence tendered on October 20, 2023, with respect to the former settlement proposal, and the evidence to be tendered on May 21, 2024, with respect to the updated settlement proposal. It was agreed that the evidence provided by the Parties on October 20, 2023 would be struck off the record and findings would be made solely with respect to the evidence tendered by the Parties on May 21, 2024.
5Mr. Andrew Ferancik was affirmed to give evidence on behalf of the Appellant and recognized as an Expert Witness in the discipline of land use planning.
SUBJECT LANDS
6Mr. Ferancik stated that the Subject Lands are located on the west side of Berczy Street, opposite the Aurora GO Station, between Mosely Street to the north, and Metcalfe Street to the south, in the Town. He added that the Subject Lands are part of the Aurora Promenade situated near the historic Yonge Street Corridor and Wellington Street Corridor, and that the Aurora Promenade has been designated for intensification and a mix of uses within the “York Region Protected Major Transit Station Area- Aurora GO Station”, which looks to promote transit-supportive intensification. Mr. Ferancik described the Subject Lands as irregular in shape and consisting of three adjacent parcels of land, with a frontage of 53 metres on Metcalfe Street, 154 metres on Berczy Street, and 81 metres on Mosley Street. The Subject Lands are presently occupied by remnant low-rise industrial buildings, associated parking, and paved areas, including a 1-storey remnant portion of the former T. Sisman Shoe Factory at 103 Mosley Street. Mr. Ferancik advised that, while this building is listed on the Town’s Heritage Register, it is not designated, pursuant to the Ontario Heritage Act.
SETTLEMENT PROPOSAL
7The revised Settlement Proposal proposes to construct two 9-storey “U”-shaped (U-shaped) buildings on the Subject Lands connected by a single-storey central lobby and a residential amenity lounge. At the request of Town staff, a substantial “Urban Square” with an area of 315 square meters has been added on the Mosley Street frontage and an entry court has been incorporated on the Berczy Street frontage.
8Mr. Ferancik described each of the two U-shaped buildings as having nine storeys, a GFA of 41,541 sq. metres divided into 230 sq. metres of office space, and 41,221 sq. metres of residential space spread over 600 residential units. Each building has a FSI of 3.97, comprised of 324 residential parking spots, 71 commercial and visitor parking spots and 122 cycle parking spots..
PLANNING EVIDENCE
9Mr. Ferancik prefaced his planning commentary by stating that, for the OPA and ZBA to be approved, the proposal had to conform to higher level Provincial Policies, such as the Provincial Policy Statement, 2020, as well as the Growth Plan for the Golden Horseshoe (as amended in 2019), in addition to all applicable Official Plans, including Regional and Municipal plans, and including secondary plans, where necessary.
10Mr. Ferancik spoke to the relationship between the Application and the Provincial Policy Statement, 2020 (“PPS”). Referring to Policies 1.1.1, 1.4.3, 1.6.7.4, and 1.7.1 of the PPS, he described how the proposed development conforms to the PPS as a result of being located in a Settlement Area which has been earmarked for intensification. He then detailed how the proposed development would result in a mix of housing types in an underutilized brownfield site, while optimizing existing infrastructure and representing transit-supportive development.
11Mr. Ferancik specifically noted that, while Policy 2.6 of the PPS prohibited development or site alteration of protected heritage (“Heritage”) property without ensuring the conservation of the Heritage attributes of the property in question, it did not apply to this Application because the Town had not deemed 34 Berczy to be a Heritage site.
12On the basis of this evidence, Mr. Ferancik concluded that the Application conformed to the PPS.
GROWTH PLAN FOR THE GOLDEN HORSESHOE (2019)
13Mr. Ferancik relied on Policies 2.2.1.2, 2.2.1.4, 2.2.6.1 and 2.2.6.2 of the Growth Plan to describe how the Settlement Proposal conformed with the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”). His evidence focused on how the implementation of the Settlement Proposal would result in an appropriate development of underutilized lands that would contribute to minimum intensification and density targets. In the context of appropriate development of the site, Mr. Ferancik pointed out that the Subject Lands could accommodate higher-density residential use as proposed by the Appellant. He also dwelt on how the Subject Lands are located within a strategic growth area, and how the Site’s proximity to existing higher-order transit supported the transportation objectives of the Growth Plan.
14On the basis of this evidence, Mr. Ferancik concluded that the proposal conformed to the Growth Plan.
REGION OF YORK OFFICIAL PLAN (2010)
15Mr. Ferancik prefaced his evidence on the relationship between the Settlement Proposal and the Region of York’s Official Plan, 2010 (“YROP”), by pointing out that the latter was the applicable Official Plan when the Applications were filed with the Town. After highlighting how the YROP identified the Subject Site as being within an Urban Area, he discussed how Policies 3.5.3 and 3.5.4 of the YROP encouraged intensification and growth in the Urban Areas and how the Settlement Proposal would result in residential intensification within the built-up area near a Regional Corridor. Mr. Ferancik opined that the built form would add to the range of housing types available in the community and that the increased density would increase the ridership base for transit and customer base for surrounding businesses.
16Mr. Ferancik referred to Section 4.4 of the YROP, which focuses on the promotion of retail uses which are walkable and transit-supportive, and discussed how the Settlement Proposal conformed to this section through the creation of an expanded retail space adjacent to the Aurora GO Station, fronting onto the public square.
17Based on the above evidence, Mr. Ferancik concluded that the appeal (“Appeal”) before the Tribunal conformed to the YROP.
TOWN OF AURORA OFFICIAL PLAN
18Mr. Ferancik reiterated how most of the Subject Site with the exception of 103 Mosley Street, is part of the Aurora Promenade, which is classified as Stable Neighbourhoods. He said that no buildings are proposed within the Stable Neighbourhoods-designated portion of the Subject Lands, because this part will be used for landscaping, outdoor amenity uses and the 315 square metre “urban square”, that has been requested by the Town.
19Mr. Ferancik referred to section 3 of the Town of Aurora’s Official Plan (“OP”), and spoke to how the proposal satisfied this section through directing intensification for an area that has been earmarked for the same, as well as by providing for the orderly development of new mixed-residential and non-residential uses adjacent to the Aurora GO Station, thereby supporting the creation of a vibrant and complete community. He then spoke to how the proposal satisfies the architectural principles found in section 4.2 of the OP by providing a 9-storey mid-rise form (which may be constructed in phases) with appropriate step-backs, and incorporation of articulated design features and recessed areas in the building massing to break up its visual impact. Recessed entryways to the central lobby and secondary residential entrances will provide weather protection, while parking, loading and refuse collection areas will be integrated into the building massing and screened from public view. Rooftop mechanical areas and elevator overruns are also recessed from the parapet of the roof.
20Lastly, Mr. Ferancik spoke to how the proposal will fulfill the policies found in Section 6 of the OP which encourage a mix of housing through provision of a mix of ground-related units along the street frontages and apartment units within the upper levels that represent a more attainable form of housing relative to the existing housing stock. He emphasized how the Stable Neighbourhoods part of the Site would remain untouched by the construction and would house the urban square such that the proposed landscaping and outdoor amenity areas would function as a compatible rear-yard to rear-yard condition.
AURORA PROMENADE SECONDARY PLAN
21Mr. Ferancik began his evidence about how the proposal conformed to the Secondary Plan by discussing its objectives, as found in Chapter 11 of the OP. He stated that the major component of the Subject Site is located within the Promenade General and Special Design Areas on Schedule B1’ of the OP.
22Mr. Ferancik asserted that the Settlement Proposal contributes to the goals of Chapter 11 by referencing local heritage in its architecture, by supporting multi-modal transportation and sustainability by increasing density and delivering a mix of uses close to rapid transit, and by appropriately transitioning to existing residential lands and respecting the existing context of the neighbourhood.
23After noting that most of the Site carries the Promenade General sub-designation within the Aurora Promenade Secondary Plan, Mr. Ferancik explained how this designation, primarily composed of automobile-oriented commercial retail plazas, holds the greatest potential for future redevelopment. The transformation into a vibrant, pedestrian-oriented mixed-use area would take place through the introduction of higher densities in high-quality mid-rise forms close to the street and the provision of appropriate transitions to adjacent neighbourhoods. Mr. Ferancik asserted that the Settlement Proposal’s provision of ground level retail, in conjunction with transitional landscaping and amenity areas where the Site abuts existing residential uses, would result in the transformation of this part of the Aurora Promenade into a “vibrant pedestrian-oriented mixed-use area” as envisioned by the Secondary Plan.
ZONING BY-LAW 6000-17
24Mr. Ferancik identified Zoning By-law 6000-17 (“ZBL”) as the Zoning By-Law applicable to the Subject Site as ZBL 6000-17 zones most of the Subject Site as E2, which indicates a General Employment Zone, while the northwestern parcel (101 Mosley Street) is zoned R7-SN (497), indicating a Special Mixed Density Residential Zone. While the E2 Zone permits a range of industrial/employment uses, as well as some accessory commercial/retail uses, the R7- SN(497) zone permits a range of medium-density residential zones mainly comprised of detached and semi-detached houses and multiplexes. Various site standards apply to this zone, depending on the type of dwelling being constructed. In addition, the lot was rezoned as part of By-law 6190-19, which added 101 Mosley Street to exception 497, modifying the parent site standards.
25Mr. Ferancik spoke to the need for an amendment to the Zoning By-law to enable the development of the site in a manner that achieves Provincial and Regional policy directives and consistency with the general intent of the Aurora Official Plan. He explained that the draft ZBA proposes that the entirety of the Subject Site be rezoned PDS4 (Promenade Downtown Shoulder – Special Mixed Density Residential) to better reflect the planned context of the area and support higher-order transit at the Aurora GO Station.
26On the basis of the above evidence, Mr. Ferancik concluded that the proposal conforms to the higher level Provincial Policies and to the applicable Official Policies and the Zoning By-Laws, and recommended that the Tribunal approve both the OPA and the ZBA.
27The Tribunal approved the OPA and ZBA in principle, and stated that the final forms of both documents would be signed off once the conditions stated in this Order have been satisfied.
REASONS, ANALYSIS, AND FINDINGS
28The Tribunal has considered the totality of the evidence before it and accepts the uncontroverted expert land use planning evidence and opinions of Mr. Ferancik. The Tribunal is satisfied that the OPA and ZBLA have due regard for matters of Provincial interest under Section 2 of the Act.
29The Tribunal finds that the OPA and ZBA are consistent with the PPS because they provide for an efficient use of underutilized land within the Town, and that they conform to the Growth Plan by facilitating intensification and by supporting orderly development with the Aurora Promenade, and Provincially and Municipally-delineated Protected Major Transit Station Areas.
30The Tribunal finds that the OPA and ZBA conform to the YROP through the intensification of a site within the Urban area, as well as the creation of new housing that supports existing and planned higher-order transit service. It also finds that the OPA and ZBA conform to the intent and purpose of the OP because they result in an appropriate level of intensification and mix of uses in a Site contained in the Aurora Promenade, as well as by conforming to the intent of the Aurora Promenade Secondary Plan through introduction of a mid-rise built form and a mix of uses to support a walkable, transit-supported area in the Town.
31With respect to the proposed conditions and the withholding of the Tribunal’s Final Order, Mr. Ferancik did not raise any concerns, or offer any other comments or concerns raised with respect to the conditions. The Tribunal finds that it is appropriate to withhold the Final Order until the conditions outlined in Paragraph 33 have been fulfilled to its satisfaction.
DECISION AND ORDER
32THE TRIBUNAL ORDERS THAT the Appeal is allowed on an interim basis, contingent upon receipt of the matters identified in Paragraph 33 below, and that the draft Official Plan Amendment and draft Zoning By-law Amendment set out in Attachments 1 and 2 to this Interim Order are hereby approved in principle.
33THE TRIBUNAL ALSO ORDERS THAT issuance of its Final Order will be withheld, contingent upon confirmation from the Town of Aurora of the following matters:
(a) that the Tribunal has received, and approved, the Official Plan Amendment submitted in a final form, confirmed to be satisfactory to City Planning and the City Solicitor; and,
(b) that the Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to City Planning and the City Solicitor.
34THE TRIBUNAL FURTHER ORDERS THAT, if the Parties do not submit the final form of the Official Plan Amendment and Zoning By-law Amendment(s) and provide confirmation that the contingent pre-requisites to the issuance of the Final Order, set out in Paragraph 33, have been satisfied, and if the Parties do not request the issuance of the Final Order by December 31, 2024, the Applicant and the Town 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 Official Plan Amendment and Zoning By-law Amendment(s) and request for issuance of the Final Order by the Tribunal. In the event that the Tribunal fails to receive the required status report, and/or in the event that the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, then the Tribunal may then dismiss the Appeal.
35The Member will remain seized for the purposes of reviewing and approving the final form of the Official Plan Amendment and Zoning By-law Amendment and the issuance of the Final Order.
“S. Gopikrishna”
S. Gopikrishna
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