Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 28, 2024

CASE NO(S).: OLT-23-000393

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

Applicant/Appellant: Almega Asset Management Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of three residential towers, with podium

Reference Number: OZ OPA 22-16 W7

Property Address: 60 Dundas Street East

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000393

OLT Lead Case No: OLT-23-000393

OLT Case Name: Almega Asset Management Inc. v. Mississauga (City)

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

Applicant/Appellant: Almega Asset Management Inc.

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

Description: To permit the development of three residential towers, with podium

Reference Number: OZ OPA 22-16 W7

Property Address: 60 Dundas Street East

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000394

OLT Lead Case No: OLT-23-000393

PROCEEDING COMMENCED UNDER section 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Almega Asset Management Inc.

Subject: Site Plan

Description: To permit the development of three residential towers, with podium

Reference Number: SPA-92586

Property Address: 60 Dundas Street East

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000395

OLT Lead Case No: OLT-23-000393

Heard: August 19, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Almega Asset Management Inc.

Matthew Helfand

City of Mississauga

Brian Duxbury Katie Pfaff

MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI AND INTERIM ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION AND BACKGROUND

1This matter involves a settlement hearing related to appeals filed by Almega Asset Management Inc. (“Appellant”) pursuant to s. 22(7) and 34(11) of the Planning Act (“Act”) against the failure of the City of Mississauga (“City”) to make decisions within the statutory time frame regarding the Appellant’s Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (collectively “Applications”) relating to the property known municipally as 60 Dundas Street East (“Property”).

2The purpose of the Applications, as filed, was to facilitate the development of the Property with three towers ranging in height from 16 to 29 storeys, with the taller towers sharing a U-shaped podium and separated by a mid-rise 14-storey residential building with retail, commercial and ‘flexible’ space.

3The appeal pursuant to s. 41(12) of the Act for the related Site Plan Approval Application (“SPA”) had previously been, and continues to be, adjourned sine die by the Tribunal.

4The Property is located within the Downtown Cooksville area of the City, at the southeast corner of Dundas Street East and Shepard Avenue. It has an area of 10,722 square metres with a frontage of approximately 79 metres (“m”) on Dundas Street East and approximately 108 m on Shepard Avenue.

5The Property is generally flat and is currently developed with a one-storey retail shopping centre with approximately 160 parking spaces. It is bounded on the east by Cooksville Creek, with a public walkway along the east property line extending south to King Street East. To the east of the creek is an approved 17-storey condominium building currently under construction. Immediately south of the Property are two retirement buildings of 18- and 10-storeys. To the west of the Property, across Shepard Avenue, is a large commercial plaza, and to the north, across Dundas Street East, are three two-storey commercial buildings and a two-storey retail/office building.

6The Property is located approximately 150 m east of Dundas Street and Hurontario Street, which is the intersection of the planned Dundas Bus Rapid Transit (“BRT”) line and the Hazel McCallion Light Rail Transit (“LRT”) line, currently under construction and slated to be completed in 2024. The Property is also served by existing public transit bus routes and is located approximately 700 m from the Cooksville GO Station, which provides regional commuter rail service between Milton Station and Union Station during weekday peak periods.

7The Property is currently designated ‘Mixed Use’, with the eastern limit identified as ‘Natural Hazard’. It is also identified as being within the ‘Downtown’, a ‘Major Transit Station Area’ (“MTSA”), and the Dundas Street ‘Intensification Corridor’ in the City Official Plan (“COP”) and is currently zoned ‘C4’ (Mainstreet Commercial) under Zoning By-law No. 0225-2007.

8The Applications were filed on March 10, 2022, and deemed complete by the City on August 16, 2022, with a resubmission filed in December 2022. The SPA was also submitted at this time and was deemed complete on January 30, 2023.

9The Applications, along with the SPA, were appealed to the Tribunal on April 28, 2023, followed by a statutory public meeting held on October 23, 2023, wherein a staff recommendation report was presented to the City Planning and Development Committee (“Committee”). The Committee directed the City Solicitor and City staff to attend the Tribunal hearing in opposition to the Applications and to continue discussions with the Appellant in an attempt to resolve the appeals.

10Case Management Conferences were held on September 12, 2023, and November 30, 2023, at which no additional Parties or Participants sought status. As such, only the Appellant and the City are Parties to the appeals.

11Post-appeal, a without prejudice resubmission was filed with the City on November 27, 2023, which was the subject of Tribunal-led mediation. Following mediation, a with prejudice settlement offer was submitted to the City, which included revised architectural plans intended to resolve the Appeals (“Settlement”).

12The Settlement includes reduced tower heights, changes to vehicular and pedestrian site access, and other modifications to address the Natural Hazard lands and the limits of the Property.

13The Tribunal received correspondence from the Appellant in advance of the Hearing, advising that the Parties had settled the issues and requesting that the Tribunal convert the proceedings to a settlement hearing. The Parties sought approval of the proposed OPA and ZBA submitted as part of the Settlement (“Settlement OPA” and “Settlement ZBA”, together “Settlement OPA and ZBA”). The appeal of the SPA continues to be adjourned sine die.

14In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the Settlement.

LEGISLATIVE FRAMEWORK

15When considering appeals filed pursuant to s. 22(7) and 34(11) of the Act, the Tribunal must have regard to the relevant matters of provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Applications conform with the Region of Peel (“Region”) Official Plan (“ROP”) and the COP.

16In consideration of the statutory requirements set out above, the Tribunal must also be satisfied that the Settlement represents good land use planning and is in the public interest.

WITNESSES

17Prior to the commencement of the hearing, the Tribunal received the Affidavit of Michael Bissett in support of the Settlement. The Tribunal qualified Mr. Bissett, on consent, to provide expert opinion evidence in the area of land use planning.

LAND USE PLANNING EVIDENCE

18Mr. Bissett provided background information on the Property, the surrounding area, the proposed use, and the history and processing of the Applications.

19Mr. Bissett opined that the Settlement OPA and ZBA meet the applicable regulatory and policy requirements, represent good land use planning and should be approved.

20In addition, Mr. Bissett submitted that the Settlement OPA and ZBA take into account and are supportive of the Metrolinx 2041 Regional Transportation Plan, which contains actions to better integrate transportation and land use planning, especially around transit stations and mobility hubs.

The Planning Act

21Mr. Bissett opined that the Settlement OPA and ZBA have regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, as the Property is located within an identified intensification area and corridor, and is adjacent to the BRT and LRT lines as well as existing frequent bus service along Hurontario Street and Dundas Street. It was his opinion that, in this regard, the Property is an ideal location for high-density development, given its location within the downtown and its proximity to several existing and planned higher-order transit routes.

Provincial Policy Statement

22Mr. Bissett opined that the Settlement OPA and ZBA are consistent with the PPS, in particular, the policies relating to residential intensification and the efficient use of land and infrastructure as the PPS places increased emphasis on promoting transit-supportive development, encouraging an increase in the mix and supply of housing, protecting the environment, and supporting the economy and job creation.

Growth Plan

23Mr. Bissett opined that the Settlement OPA and ZBA conform with the Growth Plan, in particular, the policies relating to the creation of complete communities and optimizing the use of land and infrastructure. He noted that the Property is within a ‘Strategic Growth Area’ (“SGA”) as defined in the Growth Plan as an appropriate location for intensification. He noted that the Growth Plan identifies that SGAs include urban growth centres and MTSAs, as well as lands along major roads, arterial roads, or other areas with existing or planned frequent transit services or higher-order transit corridors.

24In his Affidavit, Mr. Bissett stated that, in this regard, the Property is located in proximity to the Cooksville GO Station, the BRT and LRT lines. In addition, the Hurontario Street corridor is identified as a Priority Transit Corridor on Schedule 5 of the Growth Plan.

Region Official Plan

25Mr. Bissett advised that the enactment of Bill 150, the Planning Statute Law Amendment Act, 2023 (“Bill 150”), reversed the Ministerial approval of the Region’s new ROP and replaced it with the ROP as adopted by the Region, subject to a few modifications (“Bill 150 ROP”). He noted that his analysis of the Settlement OPA and ZBA addresses the Bill 150 ROP.

26Mr. Bissett advised that the Property is located within the delineation of an MTSA around stations and stops on the BRT and LRT lines in the Bill 150 ROP. He submitted that the Settlement OPA and ZBA conform with the Bill 150 ROP, which places considerable emphasis on intensification within the Urban System, particularly in SGAs, including MTSAs. In his opinion, the Settlement OPA and ZBA support the Region’s Growth Management objectives by optimizing the use of existing land supply within the Region and intensifying an underutilized parcel of land within the downtown and within an MTSA and an SGA. He added that the Settlement OPA and ZBA provide for a development that takes advantage of existing infrastructure and supports cost-effective development patterns.

27Mr. Bissett proffered that the Settlement OPA and ZBA also support the Region’s objective to establish complete communities, as the proposed development will provide for new residential and non-residential uses in an area that is well-served by existing and planned transit. In addition, the Settlement OPA and ZBA also support the Region’s intensification and housing goals with a compact development that offers a range of dwelling types.

City Official Plan

28Mr. Bissett opined that the Settlement OPA and ZBA conform to the growth management policies of the COP by providing new residential housing units and mixed-use development within an identified ‘Intensification Area’ that is located proximate to existing and planned higher-order transit. He added that the Settlement OPA and ZBA conform with the ‘Complete Communities’ policies of the COP, which encourage compact, mixed-use development, environments that foster incidental and recreational activity, and land use planning practices conducive to good public health.

29In addition, Mr. Bissett noted that the Settlement OPA and ZBA address the COP housing policies as the development of the Property will result in an additional 1,140 dwelling units in a tall building with a mix of unit types in a compact built form within walking distance of three higher-order transit lines. In this regard, he noted that the Settlement OPA and ZBA support the City’s goals and objectives of creating well-connected communities that support walking, cycling and transit, as well as the COP policies relating to built form and the public realm.

30Mr. Bissett noted that, while the existing planning framework in the COP for the Downtown allows for heights up to 25 storeys on lands designated ‘Residential High Density’, the proposed heights of 16, 31 and 32 storeys are appropriate given the COP’s direction for intensification at the greatest scale and intensity within the Downtown. He opined that, in this regard, the proposed height would maintain the hierarchy set out in the COP and would continue to provide for a downward transition of building heights from the Hurontario Street and Dundas Street intersection and the Cooksville GO Station, where taller building heights are currently planned and proposed. He added that the proposed heights are also consistent with the pattern of approved heights within the Downtown Cooksville Character Area.

31Mr. Bissett proffered that, subsequent to the submission of the Applications, several OPAs were adopted by the City, including OPA 144, pertaining to Protected MTSAs (“PMTSA”), maximum building heights, community infrastructure, parks, urban design, roads and pedestrian connections, among other items, which are relevant to the Applications. OPA 144 adds Schedule 11 to the COP, which places the Property in the Dundas PMTSA. He noted that, while these OPAs are determinative to his opinions, they are informative in relation to assessing the Applications.

Zoning By-law

32As submitted by Mr. Bissett, the Settlement ZBA proposes to rezone the majority of the Property from ‘C4’ to a site-specific ‘RA5-XX’ (Residential Apartment Five – Exception XX) zone to establish the required development standards on the Property, including permissions for permitted height, density, and setbacks, among others. It was his opinion that the proposed RA5 zone is the appropriate zoning category for the proposed development, given that the RA5 zone anticipates development in the form of tall residential buildings within intensification areas. He noted that the easterly portion of the Property adjacent to Cooksville Creek would be rezoned from ‘C4’ to ‘G1’ (Greenlands – Natural Hazards) to limit permitted uses to flood control, stormwater management, erosion management, natural heritage features and conservation areas.

33Mr. Bissett advised that the Settlement ZBA includes a holding provision, which requires the execution of a Development Agreement, the submission of updated reports and environmental studies and documents, as required, to the satisfaction of the City, the dedication of hazard lands and associated buffers, and the conveyance of a surface easement for an erosion access allowance.

34It was Mr. Bissett’s opinion that the Settlement ZBA is appropriate and desirable in land use planning and urban design terms and should be approved, as it will facilitate residential intensification of an underutilized site where growth is contemplated while providing for a built form that meets the intent of the COP policies and in keeping with the existing and planned context.

Conclusions

35Mr. Bissett opined that the Settlement OPA and ZBA have regard for the matters of Provincial interest in s. 2 of the Act, are consistent with the PPS, conform with the Growth Plan and the Bill 150 ROP, conform with the overall policy directions of the COP, have appropriate regard for the relevant urban design guidelines, represent good land use planning and are in the public interest. He noted that the Settlement OPA and ZBA will result in the redevelopment of an underutilized parcel of land in favour of new residential buildings with commercial uses at grade, which will contribute to the provision of new housing options in the community, as well as an attractive, safe, and comfortable environment that encourages walking, strengthens local retailing, and further promotes the use of transit and active transportation.

36Mr. Bissett opined that the Settlement OPA and ZBA provide adequate setbacks to the floodplain associated with Cooksville Creek, ensuring the protection of natural heritage features and Natural Hazards, and mitigating risks to public safety. Additionally, the Settlement OPA and ZBA have appropriate regard for the City’s urban design guidelines, including generally respecting the angular plane in order to mitigate shadow impacts on the north side of Dundas Street East and the public realm.

37Based on the foregoing, it was Mr. Bissett’s opinion that the Settlement OPA and ZBA are appropriate and desirable in terms of land use planning and urban design and should be approved in principle.

ANALYSIS AND FINDINGS

38The Tribunal accepts the uncontroverted testimony and evidence of Mr. Bissett. In consideration of his evidence and the resulting settlement of the appeals, the Tribunal is satisfied that the Settlement OPA and ZBA have sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the Settlement OPA and ZBA are consistent with the PPS and are in conformity with the Growth Plan, the Bill 150 ROP and the COP, represent good land use planning and are in the public interest.

39The Tribunal finds that the holding symbol is appropriate for the Settlement ZBA and will ensure any outstanding technical matters are adequately addressed prior to the Proposed Development being permitted.

INTERIM ORDER

40THE TRIBUNAL ORDERS that the appeals under subsection 22(7) and 34(11) of the Planning Act are allowed, in part, on an interim basis, and the Official Plan Amendment and Zoning By-law Amendment set out in Attachments 1 and 2 to this Interim Order are hereby approved in principle.

41The Tribunal will withhold the issuance of its Final Order until such time as the final form of the instruments satisfactory to the Parties is submitted to the Tribunal.

42If the Parties do not submit the final drafts of the Official Plan Amendment and Zoning By-law Amendment and do not request the issuance of the Final Order by February 28, 2025, the Parties 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 Amendments and request for issuance of the Final Order by the Tribunal.

43The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instruments.

44THE TRIBUNAL ORDERS that the related Site Plan Approval appeal continues to be adjourned sine die. The Parties are directed to provide the Tribunal with a status update in respect of the appeal by no later than Friday, February 28, 2025.

45The Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-Law Amendment and the issuance of the Final Order.

46The Member is not seized with respect to the Site Plan Approval appeal.

“C. I. Molinari”

C. I. MOLINARI

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