Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2024 CASE NO(S).: OLT-23-000720

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

Applicant and Appellant: Curated North Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a 40-storey residential building with 487 units Reference Number: PLAN 22 265093 Property Address: 17, 19, 21 & 23 Morgan Avenue Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-23-000720 OLT Lead Case No.: OLT-23-000720 OLT Case Name: Curated North Inc. v. Markham (City)

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

Applicant/Appellant: Curated North Inc. Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit a 40-storey residential building with 487 units Reference Number: PLAN 22 265093 Property Address: 17, 19, 21 & 23 Morgan Avenue Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-23-000721 OLT Lead Case No.: OLT-23-000720

Heard: September 3, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Curated North Inc.	David Bronskill
City of Markham	Maggie Cheung-Madar, Andrew Biggart (in absentia)
Sunfield Homes Ltd.	Sidonia Tomasella

MEMORANDUM OF ORAL DECISION DELIVERED BY S. Dixon ON September 3, 2024 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises from a Hearing on the Merits regarding appeals filed by Curated North Inc. (“Appellant”) pursuant to ss. 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (together, “Applications”) in the City of Markham (“City”) for lands municipally known as 17, 19, 21, and 23 Morgan Avenue (“Subject Lands”).

2Prior to the appeals, the Applications proposed to facilitate the development of a 40-storey residential building with a total gross floor area (“GFA”) of 33,023 square metres (“m²”) and a floor space index (“FSI”) of 13.07. The proposed development contained 487 dwelling units, consisting of 358 one-bedroom units, 111 two-bedroom units, and 18 three-bedroom units.

3The City did not make a decision on the Applications within the statutory timeframes prescribed by the Act and the appeals were filed on that basis.

SETTLEMENT

4The Parties advised the Tribunal that, following the cooperative efforts of the Parties and a series of Tribunal-led mediation sessions, a settlement was reached and subsequently accepted by City Council on July 17, 2024 (“Settlement”).

5The Settlement facilitates the development of a 44-storey residential building with a total GFA of 36,950 m² and an FSI of 14.7. A total of 553 dwelling units are proposed, consisting of 386 one-bedroom units, 127 two-bedroom units, and 40 three-bedroom units.

6In support of the Settlement, the Tribunal was in receipt of the sworn Affidavit of David McKay, which was marked as Exhibit 1.

7Mr. McKay is a Partner and Vice President with MHBC Planning Limited and a Registered Professional Planner. He has been practicing land use planning for 27 years and has been qualified by the Tribunal on numerous occasions to provide expert opinion evidence in that regard. He was so qualified once again by the Tribunal at the Hearing.

ANALYSIS

Site and Area Context

8Mr. McKay proffered that the Subject Lands – comprised of four rectangular parcels with a single detached dwelling on each lot – are located on the south side of Morgan Avenue, approximately 95 metres east of the Yonge Street and Morgan Avenue intersection. The total lot area of the Subject Lands is approximately 0.24 hectares, with approximately 60 metres of frontage along Morgan Avenue and a lot depth of approximately 40 metres.

9The Subject Lands are surrounded by single detached residential dwellings to the north, south, and east. A low-rise commercial plaza is located to the west of the Subject Lands, fronting onto Yonge Street. Three high-rise residential towers with at-grade commercial uses are located further to the west, on the other side of Yonge Street.

10Mr. McKay noted that, while the existing surrounding context is largely that of low-rise residential uses, the lands to the north, east, and south are in the process of being planned for greater intensity to support the planned transit infrastructure of the Yonge North Subway Extension along Yonge Street. Accordingly, there are several active high-rise residential and mixed-use development applications in proximity to the Subject Lands.

Planning Analysis

11Mr. McKay proffered that the Subject Lands:

a) Are serviced by existing transit, including bus routes along Yonge Street and Clark Avenue on the west side of Yonge Street that connect to other higher order transit stations and broader connectivity within the City and the Region of York (“Region”);

b) Are within a Protected Major Transit Station Area (“PMTSA”) with the planned Clark Subway Station to the west of the Subject Lands at the Yonge Street/Clark Avenue intersection; and

c) Have access to a variety of retail/businesses and public facilities, including schools, parks, community centres, libraries, places of worship, and social/health service providers.

12In addition to the revised development figures noted in Paragraph [5], above, Mr. McKay proffered that other key aspects of the Settlement include the following:

a) An additional 15 per cent of the total number of dwelling units are to be designed to be converted to two-bedroom and/or three-bedroom units through the use of adaptable design measures;

b) An on-site bike share station, which will consist of a minimum of 15 bicycles (including 10 e-bikes), will be provided;

c) 1.5 per cent of the total number of units will be provided as affordable units in accordance with the Region’s definition, with the unit mix to be consistent with the building as a whole; and

d) Parkland dedication will be provided as a cash-in-lieu payment and/or the purchase of properties in the area for off-site parkland.

13Based on the Settlement, Mr. McKay prepared revised versions of the Applications, including a Draft OPA to the 1987 City Official Plan (“1987 COP”), a Draft OPA to the 2014 City Official Plan (“2014 COP”), and a Draft ZBA (together, “Revised Applications”). The Draft OPAs and Draft ZBA are attached to this Decision as Attachments 1, 2, and 3, respectively.

14Mr. McKay proffered that the Draft OPAs will establish the permitted height and density for the Subject Lands, while the Draft ZBA will implement matters including, but not limited to, height, density, setbacks, step-backs, and parking. The Draft ZBA also includes holding provisions relative to further studies and, if necessary, the securement of infrastructure upgrades.

15In Mr. McKay’s professional opinion, the Revised Applications:

a) Provide for appropriate and reasonable density on the Subject Lands that, at the scale contemplated, will optimise the use of land and infrastructure, and will contribute to growth and intensification in a PMTSA;

b) Permit a range of residential housing units and types, including affordable housing units, fostering diversity and strengthening the area’s stability, livability, and revitalisation, while helping to create a complete community;

c) Permit redevelopment of the Subject Lands in an appropriate manner, utilising and optimising existing municipal infrastructure;

d) Will not cause any environmental or public health and safety concerns;

e) Promote a sustainable community by incorporating low-impact development measures and transportation demand management measures;

f) Will enhance the pedestrian environment and improve streetscaping along the adjacent public street frontage;

g) Permit a development that is in reasonable walking and cycling distance to commercial, recreational, and educational facilities, thus supporting a healthy and active lifestyle for future residents and visitors; and

h) Are compatible with the adjacent and surrounding land use context, including the existing and planned uses within the Yonge Corridor, posing no adverse wind, shadow, or privacy impacts to adjacent properties and the low-rise neighbourhood to the east of Dudley Avenue.

16Accordingly, it is Mr. McKay’s opinion that the Revised Applications:

a) Have appropriate regard for matters of provincial interest as set out in s. 2 of the Act, and in particular matters 2(a), (e), (f), (h), (h.1), (j), (l), (o), (p), (q), (r), and (s);

b) Are consistent with the Provincial Policy Statement, 2020 (“PPS”), and in particular Policies/Sections 1.1.1, 1.1.3.1 to 1.1.3.4, 1.4.1, 1.4.3, 1.6.3, 1.6.6.1, 1.6.6.2, 1.6.6.7, 1.6.7, 1.7, and 1.8;

c) Conform to the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”), and in particular Policies/Sections 1.2.1, 2.2.1.2, 2.2.1.4, 2.2.2.2, 2.2.4.2, 2.2.4.3, 2.2.4.6, 2.2.4.8, 2.2.4.9, 2.2.6.3, 3.2.1, 3.2.2, and 4.2.10;

d) Conform to the Region Official Plan (“ROP”), and in particular Policies/Sections 2.3, 4.1.1, 4.2.1 to 4.2.5, 4.2.7, 4.4.2, 4.4.7, 4.4.8, 6.1, and 6.4;

e) Conform to the 1987 COP and the 2014 COP, except as requested to be amended;

f) Conform to the Thornhill Secondary Plan Area, except as requested to be amended; and

g) Have appropriate regard to the applicable urban design guidelines of the City.

Participant Statement

17At the Case Management Conference held for these proceedings on October 11, 2023, Ward One (South) Thornhill Residents Inc. (“WOSTRI”) was conferred Participant status by the Tribunal. In both his Affidavit and at the Hearing, Mr. McKay provided his professional planning opinion in response to each of the concerns raised by WOSTRI in their Participant Statement filed with the Tribunal.

18The Tribunal is satisfied that the concerns by WOSTRI have been appropriately addressed by the Revised Applications.

FINDINGS

19Based on the expert opinion evidence of Mr. McKay, the Tribunal finds that the Revised Applications have appropriate regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, conform to the Growth Plan and ROP, conform to the 1987 COP and the 2014 COP, except as requested to be amended, represent good planning, and are in the public interest.

INTERIM ORDER

20THE TRIBUNAL ORDERS that the appeals pursuant to ss. 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), are allowed in part.

21THE TRIBUNAL ORDERS that the Official Plan for the City of Markham, 1987, is to be modified generally in accordance with the Draft Official Plan Amendment as set out in Attachment 1 to this Order.

22THE TRIBUNAL ORDERS that the Official Plan for the City of Markham, 2014, is to be modified generally in accordance with the Draft Official Plan Amendment set out in Attachment 2 to this Order.

23THE TRIBUNAL ORDERS that By-law No. 177-96 to the City of Markham is to be modified generally in accordance with the Draft Zoning By-law Amendment as set out in Attachment 3 to this Order.

24THE TRIBUNAL ORDERS that the final approval of the draft instruments listed in Paragraphs [21] to [23], above, shall be withheld by the Tribunal until counsel for Curated North Inc. provides the Tribunal with a final revised version of the draft instruments that is satisfactory to the Parties.

25THE TRIBUNAL ORDERS that, should the final revised version of the draft instruments not be provided to the Tribunal within six months of the date of this Interim Order, the Parties shall provide the Tribunal with a written status update.

26The Tribunal may be spoken to in the event the Parties require the Tribunal’s assistance with respect to any of the Interim Orders described above.

27This Member is seized for the purposes of reviewing and approving the final revised version of the draft instruments.

“S. Dixon”

S. DIXON

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

ATTACHMENT 3