Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
August 09, 2024
CASE NO(S).:
OLT-23-000941
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Marlin Realty Ltd.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the development of a 38-storey mixed-use building containing 399 dwelling units
Reference Number:
22 225744 STE 19 OZ
Property Address:
8 Dawes Road
Municipality:
City of Toronto
OLT Case No.:
OLT-23-000941
OLT Lead Case No.:
OLT-23-000941
OLT Case Name:
Marlin Realty Ltd. v. Toronto (City)
Heard:
August 02, 2024 by Written Hearing
APPEARANCES:
Parties
Counsel
Marlin Realty Ltd. (“Applicant/Appellant”)
D. Angelucci M. Foderick
City of Toronto (“City”)
J. Davidson M. Mahoney
Minto Communities Canada Inc. on behalf of Minto (Dawes) GP Inc. (“Minto”)
B. Schubert C. MacDougall
Canadian Tire Corporation Ltd. (“CTC”)
Jennifer Evola
6 Dawes Fitzrovia Inc. (“6DF”)
Michael Cara
Jacob’s Tent Inc. (“JT”)
Michael Cara
Tri-Metro Investments Inc. (“TMI”)
Andy Margaritis
DECISION DELIVERED BY T.F. NG AND INTERIM ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal was recently converted to a written Hearing to consider a settlement proposal (“Settlement”) from a previously scheduled Hearing of the Appellant’s appeal of a Zoning By-law amendment (“ZBA”) of Zoning By-law No. 569-2013.
2The purpose of the ZBA was to facilitate the development of a 38-storey mixed-use building containing 399 dwelling units at 8 Dawes Road (“Subject Property”) in the City of Toronto (“City”).
3The Appellant and the City have settled the matter through a Settlement Offer accepted by the City (the “Settlement Proposal”). Minto, CTC, 6DF, JT and TMI agree with the Settlement Proposal and consent thereto. Following the Settlement Proposal, a preliminary Zoning By-law Amendment (the “draft ZBA”) was provided, which was, if the Tribunal thought fit, to be approved in principle subject to conditions to be fulfilled before the Final Order for the Zoning By-law may be issued.
4Michael Goldberg, a Registered Professional Planner (RPP) (“the Expert”), swore an affidavit on July 24, 2024, on behalf of the Appellant in support of the Settlement Proposal. The Affidavit was marked as Exhibit 1, and the accompanying “Settlement Material” was marked as Exhibit 2.
5The Tribunal, having considered the uncontested sworn statement of the Expert, the Settlement Proposal, and having reviewed the documents filed, allows the appeal in part for the reasons set out below.
PLANNING EVIDENCE
6The Expert described the chronology of events relating to the ZBA matter and the Settlement Proposal being put before the Tribunal. The Expert has reviewed all applicable file documents and the legislative, policy and guideline framework in support of the proposed application and Settlement Proposal.
7The relevant policy framework includes the Provincial Policy Statement 2020 (“PPS”), the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”) and the City’s Official Plan (“OP”). He opined that the Settlement Proposal and the Appellant’s ZBA represent good land use planning and recommended approval of the Settlement Proposal subject to conditions being fulfilled before the issuance of the Final Order.
AREA CONTEXT
8The Subject Property is an irregularly shaped, vacant lot of 0.62 acres located approximately 160 metres (“m”) south of Danforth Avenue and immediately north of the GO Transit Rail Line in the Danforth neighbourhood of the City.
9The Subject Property is located within a proposed, although not yet Ministerially approved, Protected Major Transit Station Area (PMTSA – SASP 621), approximately 400 m southeast of the Main Street subway station along the Bloor-Yonge TTC Line 2 and approximately 350 m east of the Danforth GO Station.
10The OP designates the Subject Property as Mixed Use Areas on Map 21 – Land Use Plan and identifies it as being located south of an Avenue, as shown on Map 2. The Subject Property is also within the Employment Priority Area on Map 3 and within Character Area C on Map 5 of Site and Area Specific Policy (SASP) 577 (OPA 478).
11The Subject Property has excellent rapid transit accessibility and is within very close walking proximity to the Main Street subway station and the Danforth GO Station.
12The surrounding area, including the Subject Property, is an important growth area of high-density, high-rise, transit-supportive, mixed-use developments, including residential and non-residential uses.
13The Subject Property is excluded from the new City-wide Zoning By-law No. 569-2013 and is zoned under the former Zoning By-law No. 438-86 as Industrial Districts (I1 D1). The subject application proposes to bring the Subject Property into Zoning By-law No. 569-2013 and to rezone it as Commercial Residential (CR) through a site-specific amendment.
14The surrounding area, including Character Area C of SASP 577, contains a mix of existing, proposed, and approved tall towers ranging in height from eight to 59-storeys.
THE REVISED PROPOSAL
15The revised Proposal includes architectural plans produced following discussions between the Appellant and the City.
16The Proposal seeks to redevelop the Subject Property by constructing a 52-storey mixed-use building with a four-storey podium element and 579 dwelling units, including non-residential space at-grade and vehicular parking distributed throughout one level of underground parking, at-grade, and within the southern portion of the building at levels two to four (abutting the crash wall facing the GO rail tracks). The proposal continues to provide a privately owned public space (POPS) located at the southwest corner of the Subject Property, as well as a road widening along Dawes Road.
17The revised Proposal incorporates one level of affordable housing (for a total of 12 units) to be located on the third floor, as described in the Settlement Offer, which will be secured as an in-kind community benefit contribution.
ANALYSIS/FINDINGS
18The Tribunal agrees with the uncontested opinion evidence of the Expert that the Settlement Proposal:
a) Supports and advances the PPS policy direction to optimize the use of the land, resources, and the existing and planned infrastructure. The proposed 52-storey mixed-use building is appropriate and suitable for this site and its surrounding context. The redevelopment proposal and the draft ZBA are consistent with the PPS.
b) Optimizes the use of land with an urban form that will more efficiently utilize existing infrastructure and community facilities. The convenient access to a range of transit options allows for optimal utilization of transit, minimizing vehicle trips, maximizing alternative forms of active transportation, and promoting energy efficiency.
c) Introduces a mixed-use development with additional housing, including affordable housing units, contributing to a more ‘complete community.’ The housing policies relating to providing a mix of housing options and densities are satisfied and advanced.
d) Contributes to satisfying the projected minimum population growth needs for this Strategic Growth Area.
e) Conforms with the policies of the Growth Plan and is consistent with the PPS.
f) Conforms with the OP by:
Creating a well-designed, high-quality mixed-use residential and commercial building on this underutilized Subject Property, offering a range of residential unit types, including affordable housing units and amenities in a building designed to advance the vision for the Strategic Growth Area.
Proposing a development designed to conform to the development criteria for development in Mixed Use Areas and the Built Form policies for new developments in Policy 3.1.2 of the OP.
Introducing a housing form similar to the evolving character of this neighbourhood and providing for a range of dwelling unit types, including a minimum of 25% of the proposed dwelling units being family-sized units of two-bedroom or larger.
Siting a 52-storey mixed-use residential tower at this location, which is of a height that is compatible and similar to the approved 59-storey development to the northwest and is designed with appropriate regard to the built form to the lower scale areas to the east.
Being appropriately massed and designed to fit in with the existing and planned context of the neighbourhood with no adverse planning impacts.
19The Tribunal finds that the Settlement Proposal as presented:
a) Is consistent with the PPS, particularly Policy 1.1.3.1 of the PPS, which states that “settlement areas shall be the focus for growth and development.” The Subject Property is located within the settlement boundary and built-up area where growth and development are to be the focus. Policy 1.1.3.3 speaks to planning authorities identifying and promoting opportunities for intensification and redevelopment, while Policy 1.1.3.4 facilitates such intensification to the appropriate development standards. The Settlement Proposal is consistent with these policies.
b) Conforms to the Growth Plan’s principles as set out in Section 1.2.1, which the Settlement Proposal “supports the achievement of complete communities that are designed to support healthy and active living and meet people’s needs for daily living throughout an entire lifetime; prioritizes intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability; supports a range and mix of housing options, including second units and affordable housing, to serve all sizes, incomes, and ages of households.”
c) Conforms to the OP, where Section 2.2(2) directs that “Growth shall be directed to the Centres, Avenues, Employment Areas and the Downtown on Map 2, to meet objectives that include: use of municipal land, infrastructure and services efficiently; concentrating jobs and people in areas well served by surface transit and rapid transit stations; promoting mixed-use development to increase opportunities for living close to work and to encourage walking and cycling for local trips; facilitating social interaction, public safety and cultural and economic activity; and protecting neighbourhoods, green spaces and natural heritage features and functions from the effects of nearby development.”
d) Conforms to Section 3.1.3. of the Built Form Policies in the OP as the proposed building is designed with a base building/podium and adequate step back. The base of the building incorporates the residential lobby, loading facilities, and underground parking garage ramp. The tower adequately steps back above the four-storey podium element. The redevelopment proposal has an attractive and appropriate design that will enhance the pedestrian environment and compatibly fit in its existing and planned context, generally implementing the design criteria of this section of the OP. The Built Form policies applicable to the redevelopment proposal have been satisfactorily addressed, and the proposed redevelopment and the draft ZBA conform with the OP policies for Built Form.
e) Meets Section 1.1 of the Tall Building Design Guidelines 2013 in responding to the patterns, opportunities and challenges within the area and Section 1.3 on fitting within the existing and planned context with the appropriate transition.
f) Meets the Growing Up, Planning for Children in New Vertical Communities - the Growing Up Guidelines 2020, by providing a minimum of 25% large units.
CONCLUSION
20The Tribunal is satisfied that the Settlement Proposal represents good planning and that the proposed draft ZBA has regard for the matters of Provincial interest as set out in section 2 of the Planning Act, is consistent with the PPS, and conforms to the Growth Plan and the OP.
INTERIM ORDER
21THE TRIBUNAL ORDERS THAT the appeal is allowed in part and,
The preliminary draft Zoning By-law Amendment, attached as Attachment 1, is approved in principle, which shall be substantially in accordance with the plans and drawings by Arcadis Architects (Canada) Inc. dated May 3, 2024 (in Exhibit 1, Exhibit D schedule A) contingent upon satisfaction of those pre-requisite matters identified in subparagraph 2 below;
The Final Order of the Tribunal will not be issued until the Tribunal is in receipt of written communications from the City Solicitor and Counsel to Minto (Dawes) GP Inc. that the following conditions have been satisfied:
a) The final form and content of the draft Zoning By-law being to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning, and to the satisfaction of Minto (Dawes) GP Inc., acting reasonably;
b) The parking supply required for the development being set out in the final form of the draft Zoning By-law, to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;
c) The owner/applicant providing confirmation of water, sanitary and stormwater capacity (and conformity with the accepted Master Functional Servicing Report respecting Character Area C in Official Plan Amendment No. 478) to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, or the determination of whether holding provisions are required in the Zoning By-law Amendment;
d) The owner/applicant securing through the Site Plan Approval process and any municipal infrastructure agreement the design and the provision of financial securities for any upgrades or required improvements to the existing municipal infrastructure and/or new 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, should it be determined that improvements or upgrades and/or new infrastructure are required to support the development;
e) The owner/applicant submitting a wind tunnel study acceptable to, and to the satisfaction of, the Chief Planner and Executive Director, City Planning, and to the satisfaction of Minto (Dawes) GP Inc., acting reasonably, and that such matters arising from such study be secured if required through the Site Plan Approval process;
f) The owner/applicant submitting a revised transportation impact study and a parking and loading study acceptable to, and to the satisfaction of, the General Manager, Transportation Services, and that such matters arising from such studies be secured if required through the Site Plan Approval process;
g) The owner/applicant submitting a revised landscape plan which includes a notation that a volume of 30 cubic metres of soil will be provided for each tree, with utilities shown to Quality Level A (QL-A) if required by the Quality Level B (QL-B), and provides any necessary financial securities, to the satisfaction of the Chief Planner and the General Manager, Parks, Forestry and Recreation, and that such matters arising from such study be secured if required through the Site Plan Approval process;
h) The owner/applicant submitting an environmental noise and vibration report and completing a peer review of the submitted environmental noise and vibration assessment report at the owner/applicant's sole expense, to the satisfaction of the Chief Planner and Executive Director, City Planning; and
i) The owner/applicant submitting a rail safety report and completing a peer review of the submitted rail safety report at the owner/applicant's sole expense, to the satisfaction of the Chief Planner and Executive Director, City Planning.
The Parties shall forward the final agreed draft Zoning By-law to the Tribunal for approval and issuance of the Final Order .
The Parties shall update the Tribunal on the progress of fulfilment of conditions within six months of the date of this Order.
The Tribunal may be spoken to in the event of issues arising from the implementation of this Order.
“T.F. NG”
T.F. NG
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.