Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 25, 2024
CASE NO(S).:
OLT-23-000610
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
A1 Developments Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit two new Buildings containing two Mixed Use towers of 45 and 33-storeys in height atop one shared one-and-seven-storey podium
Reference Number:
22 193284 NNY 18 OZ
Property Address:
5318-5334 Yonge Street and 11 Churchill Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-23-000610
OLT Lead Case No.:
OLT-23-000610
OLT Case Name:
A1 Developments Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
A1 Developments Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit two new Buildings containing two Mixed Use towers of 45 and 33-storeys in height atop one shared one-and-seven-storey podium
Reference Number:
22 193284 NNY 18 OZ
Property Address:
5318-5334 Yonge Street and 11 Churchill Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-23-000611
OLT Lead Case No.:
OLT-23-000610
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A
Appellant:
A1 Developments Inc.
Subject:
Site Plan
Description:
To permit two new buildings containing two mixed use towers of 45 and 33-storeys in height atop one shared one-and-seven-storey podium
Reference Number:
22 193283 NNY 18 SA
Property Address:
5318-5334 Yonge Street and 11 Churchill Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-23-000612
OLT Lead Case No.:
OLT-23-000610
Heard:
September 16, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
A1 Developments Inc.
Jason Park Sarah Kagan
City of Toronto
Uttra Gautam Jessica Braun
5336 IND Properties Inc.
Mandy Ng
MEMORANDUM OF Oral DECISION delivered BY STEVEN T. MASTORAS on September 16, 2024, AND INTERIM ORDER OF THE TRIBUNAL
Link to Interim Order
INTRODUCTION
1The matter before the Tribunal is related to appeals pursuant to subsections 22(7) and 34(11) of the Planning Act (“Act”) for refusal or non-decision of the City of Toronto (“City”) to allow an Official Plan Amendment (“OPA”) application, and a Zoning By-law Amendment (“ZBA”) application, respectively, and there is also the matter of an appeal pursuant to s.114(15) of the City of Toronto Act, to approve a Site Plan Amendment (“SPA”) application (together “Appeals”/ “Applications”).
2The Appeals were initially scheduled for a 10-day Merit Hearing before the Tribunal; however, on consent of the Parties, the Hearing is now converted to a one-day Hearing related to a Settlement Proposal (“Settlement”).
3A1 Developments Inc. (“Applicant”) filed the Appeals with respect to the lands municipally known as 5318-5334 Yonge Street and 11 Churchill Avenue (“Subject Land”). The Applications were deemed complete by the City in December 2022, and the Settlement details outlined in this Decision were adopted and approved by City Council on May 22, 2024.
4For reasons that follow in this Decision, the Tribunal, allowed the Appeals, in part, approving the draft instruments attached below, and adjourned the SPA sine die, following a comprehensive presentation from the Parties.
LEGISLATIVE FRAMEWORK
5In deciding on the matters before it, the Tribunal must be satisfied that the proposed planning instruments: represent good planning; and are in the public interest. The proposed planning instruments must also be found to have appropriate regard for the matters of Provincial interest in s. 2 of the Act; be consistent with the Provincial Policy Statement, 2020 (“PPS”); conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); conform to the City Official Plan (“COP”); and the North York Centre Secondary Plan (“NYCSP”) among several other related City policies and guidelines.
PLANNING EVIDENCE
6The Tribunal was in receipt of an Affidavit, sworn by Michael S. Goldberg, on September 10, 2024, which included his updated Witness Statement, Curriculum Vitae, and Acknowledgement of Expert’s Duty, and was marked as Exhibit 1.
7Mr. Goldberg was qualified by the Tribunal to provide expert opinion evidence relating to Land Use Planning matters associated with the Settlement. His experience in this area of the City is quite extensive, and the Tribunal noted that he has had primary carriage of the matter and was first retained by the Applicant in January 2022.
SUBJECT LAND AND SURROUNDING CONTEXT
8The Subject Land is located at the southwest corner of Yonge Street and Churchill Avenue, comprised of approximately 4,219.15 square metres (“sq m”) (0.422 hectares/1.04 acres). The Subject Land is generally located on the west side of Yonge Street, along the south side of Churchill Avenue, and maintains frontage along Canterbury Place. The Subject Land is a consolidation of several separate properties, which include one and two-storey commercial uses along Yonge Street and a three-storey residential walk-up apartment building (11 Churchill Avenue) consisting of 17 rental apartment units.
9A neighbouring parcel of land located at 5336 Yonge Street (“5336”) (directly at the southwest corner) is owned by 5336 IND Properties Inc., who is a Party to this Settlement but does not form part of the Applications. As an adjacent property, 5336 maintains a frontage along Yonge Street of 11.3 metres (“m”) and a depth along Churchill Avenue of 37.9 m. This Party has agreed to the removal/relocation of a north-south easement, currently bordering the Subject Land, in accordance with a servicing solution submitted as part of the Settlement (Exhibit 1, B). The Tribunal noted that currently, there is no application related to 5336 before the City.
THE SETTLEMENT PROPOSAL
10Mr. Goldberg briefly outlined the original proposal as submitted in January 2022. He then informed the Tribunal that, following its initial submission, an additional parcel was added to the Subject Land (5318 Yonge Street), which formed part of the Applicant’s revised submissions, ultimately deemed complete by the City in December 2022. The assembly increased the Subject Land area from 3,686.55 sq m to 4,219.15 sq m.
11The Applicant seeks to redevelop the Subject Land by demolishing the existing buildings and constructing two new buildings containing two mixed-use towers of 45-storeys (“Building/Tower A”) and 35-storey (“Building/Tower B”) in height above a shared, one, four, and seven-storey podium. The total height of Building/Tower A is 143.5 m, and the total height of Building/Tower B is 113 m (excluding a 6.5 m mechanical penthouse component of each Tower).
12There are a proposed total of 963 residential units, including the 17 rental replacement units and a proposed mix of unit types, including:
One studio unit (0.1%);
706 one-bedroom units (73.3%);
154 two-bedroom units (16.0%); and
102 three-bedroom units (10.6%).
13The Settlement proposes an OPA which amends the NYCSP by increasing the overall permitted height of the residential tower from 87 m to 143.5 m and 113 m (exclusive of the mechanical penthouse) and by increasing the overall permitted Floor Space Index (“FSI”) from an existing base of 3.75 FSI (4.98 FSI with density incentives) to 14.2 FSI. A further OPA is not required in the Mixed Use Area G designation in the NYCSP, which currently permits up to 20% for non-residential uses.
14The ZBA seeks to rezone the Site from General Commercial Zone (C1) to a Multiple-Family Dwellings Sixth Density Zone (RM6), with Site Specific exceptions to provide zoning standards relating to the building height, density, parking, and additional zoning regulations. Both the OPA and ZBA draft instruments are attached below with this Decision.
15Other important elements of the Settlement include the following:
a) A total Gross Floor Area (“GFA”) of 59,715.3 sq m and a total FSI of 14.2;
b) There will be a new servicing alignment along Churchill Avenue and Canterbury Place for the Subject Land substantially as shown on the attached servicing alignment plan prepared by Masongsong Associates dated April 29, 2024 (Exhibit 1, pg. 74);
c) The at-base building setbacks are 10 m for Building/Tower A along Yonge Street, at grade from the curb, and 1.5 m from lot lines for Tower B along Canterbury Place at grade (exposed basement) and along Churchill Avenue;
d) The Building/Tower components above the base buildings, establish setbacks at a minimum of 5 m along Canterbury Place, 3 m from the north property line adjacent to 5336, and 7.1 m to the Yonge Street lot line;
e) Building/Tower A is setback 10 m from the south property line, with a further tower-component step back of 3.0 m beyond the podium along Yonge Street, and the proposed depth of the balconies on the south side of Building/Tower A has been reduced to 1.2 m. The seven-storey podium for Building A is flush with the property lines to the north and south;
f) Building/Tower B is setback 12.5 m from the south property line, with a further tower-component step back of 3.0 m along Churchill Avenue, combined with a graduated transitional tower-component step back from 3.0 m at the north end to a 1.5 m step back at the south end;
g) Building/Tower A residential lobby is along Yonge Street, abutting adjacent commercial/retail wrap-around space (at grade level), and the Building/Tower B residential lobby is along Canterbury Place (P1 level), with immediate access to common area parking, garbage, and mechanical rooms;
h) There is a combined total indoor/outdoor amenity space of 3848.28 sq m, shared between both Towers, equalling a ratio of 2.0 sq m per dwelling unit, exceeding the NYCSP requirements, and the Tower separation between buildings is 24.3 m, slightly less than the 25 m standard requirement;
i) There are four levels of below-grade parking, connecting both Building/Towers A and B, with a combined total of 273 vehicular residential, visitor, short-term and car-share spaces. There is a combined total of 733 bicycle parking spaces for residents, including short-term visitor and publicly accessible spaces;
j) There is no on-site park proposed or required by the City; however, the necessary parkland for the development will be provided either as an off-site dedication or a cash-in-lieu of parkland payment; and
k) The Proposal is subject to the City’s Community Benefits Charge By-law No. 1139-2022.
16Furthermore, a component of the Settlement also addresses that the demolition and the replacement of the 17 rental units at 11 Churchill Avenue will be in accordance with the policies of the COP and the terms to be approved through the Rental Housing Demolition Application, filed concurrently.
PLANNING OPINION AND LEGISLATIVE POLICY MATTERS
Provincial Policy Statement, 2020 (“PPS”)
17Mr. Goldberg generally opined that the OPA and ZBA, which facilitate the proposed development, are consistent with the PPS and provide for a compact built form that is efficient and optimizes the use of services within the NYCSP Centre, providing for an appropriate mix of uses and unit types and sizes that contributes to a complete community, that is transit-supportive for existing and future transit.
A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”)
18Mr. Goldberg maintained that the OPA and ZBA, which facilitate the proposed development, conform to the GP, as it is within a Strategic Growth area, which is also defined as “an Urban Growth Centre, a Major Transit Station Area [(“MTSA”)], that is serviced by Higher Order Transit and Frequent Transit.”
19Furthermore, Mr. Goldberg stated that the GP’s focus on complete communities is achieved by the proposal in relation to MTSAs that form part of the NYCSP, with its compact built form, the addition of 963 residential units, proximity to transit and other modes of transportation, shops, services, entertainment, parks, community facilities, a wide variety of dining alternatives. He focused his remarks on the expanded public realm, streetscape improvements and the addition of new commercial uses at the Subject Land, which is seriously underutilized in its current form.
20Mr. Goldberg also addressed the pending implementation of the new Provincial Planning Statement, 2024 (“new PPS”), which is expected to replace the current PPS and the GP, with an expected commencement date of October 20, 2024, by stating that should the issuance of the Tribunal’s Decision occur subsequent to this date, the proposal continues to maintain consistency with the new PPS.
City Official Plan (“COP”) and North York Centre Secondary Plan (“NYCSP”)
21The Subject Land is currently designated Mixed-Use Areas through the COP and under the NYCSP. Mr. Goldberg provided extensive detail around the COP (Exhibit 1, paras. 53-60) with a particular focus on the importance of the North York “downtown” as one of four prominent centres in the City, with an emphasis on Healthy Neighbourhoods policies in the COP, and appropriate transition between this Proposal and the immediate neighbourhood to the west between Yonge Street and Beecroft Road.
22Additional policy areas of conformity with the COP included but were not limited to Public Realm and Built Form; Wind Study requirements; Shadow Impact analysis; Housing priorities where building design achieves compatibility and fit within the existing and planned context, achieving density that can be accommodated by existing infrastructure; and a particular focus on the importance of Mixed Use Areas (Exhibit 1, paras.89-92).
23Mr. Goldberg stated that the NYCSP more appropriately dealt with the Subject Land requirements, and his Witness Statement and testimony focused to a greater degree on the NYCSP, as opposed to the COP. He further opined that the
height and density prescriptions of the NYCSP are old and outdated, as have been demonstrated and reflected in prior height and density OPA approvals within NYCSP. Through this OPA application, the City OP is being kept up-to-date with the current PPS 2020 and Growth Plan 2020. The height and density reflected in this proposal are a contemporary expression of the use and intensity of redevelopment in a Centre, an Urban Growth Centre and a Major Transit Station Area of the City of Toronto. As such, the proposal has been appropriately and reasonably justified from land use and urban design perspectives.
24This interpretation became more evident throughout the Witness Statement (Exhibit 1, paras. 95-122), which was supplemented by Mr. Goldberg’s testimony and was also reinforced by Counsel for the City at the Hearing.
25Finally, Mr. Goldberg asserted that the proposal has regard to other very relevant policies such as OPA 570 adopted by the City, which identifies Protected MTSAs associated with transit stations, requiring Provincial approval; City Tall Building Design Guidelines (2013); Growing Up; Planning For Children in New Vertical Communities; and Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings.
26Finally, although Mr. Goldberg did not directly testify to regard for s. 2 of the Act, his summary opinions were readily interpreted by the Tribunal that the Proposal shows regard for this legislative requirement. He opined that the OPA and ZBA, which facilitate the proposed development, represent a site-specific redevelopment that is well suited for intensification and the orderly development of safe and healthy communities, providing an appropriate location of growth and development with a level of density that is transit-supportive and in close proximity to future higher-order transit. He added that there will also be an adequate provision of employment opportunities as well, with the commercial at-grade elements in the design. He concluded that the overall Provincial policy directives help to achieve the City’s density targets for this specific Urban Growth Centre and represent good planning.
PARTICIPANT STATEMENT
27The Yonge Corridor Condominium Association (“YCCA”) is an association that represents more than 100 condominium building boards of directors along the Yonge Street Corridor. The YCCA provided a detailed summary of its issues of concern prior to the original CMC on October 19, 2023, and re-submitted the identical correspondence in the lead-up to this Settlement. Issues that were identified included but were not limited to the following:
Development charges and their impact on hard and soft infrastructure;
Vehicular traffic and unit/visitor parking impact, public parking, for retail commercial, and multi-residential impact on such;
Green space access in short supply, parks, and recreation programmes;
Family-oriented unit design;
Line 1 added impact; Local school impact; and
Requesting a 20% reduction in height and number of units, with increased parking for new units and visitors.
28Mr. Goldberg responded to each of these concerns directly in his Witness Statement (Exhibit 1, paras. 167-189). In his oral testimony, he stated that the specific request from the YCCA for a 20 percent overall reduction in height and unit count was purely aspirational. He asserted that the Proposal was circulated and comprehensively documented to all requisite City agencies, achieved success through Tribunal-led and independent mediation efforts, and ultimately resulted in City Council’s approval of the Settlement before the Tribunal.
29Mr. Goldberg’s conclusions, provided in substantial detail in his Witness Statement (Exhibit 1, paras.190-196), much of which was reinforced through his closing testimony, that the OPA and ZBA which facilitate the proposed development has regard for s. 2 of the Act, is consistent with the PPS (and the new PPS, effective October 20, 2024), conforms to the GP, the COP, the NYCSP and all other related policies and guidelines of the City. He stated that there were no adverse impacts from the Proposal in reference to the YCCA Participant issues and the closest low-density residential Neighbourhood area.
CONCLUSION AND DISPOSITION
30Based on the uncontroverted land use planning evidence from the Applicant, through the comprehensive Witness Statement and oral testimony, and on consent of all of the Parties, the Tribunal finds that the OPA and ZBA, as presented, merits the Tribunal’s approval. The Proposal meets all of the necessary legislative requirements and is representative of good planning in the public interest.
31The Parties have clearly worked diligently in this very important City corridor to achieve an acceptable Settlement over time, with an evolving and impressive architectural design. This followed community consultation and Tribunal-led mediation, with particular attention to infrastructure improvements. The Settlement further reinforces the Provincial and Municipal policy objectives through a meaningful Proposal that will have significant economic and community benefits. Any remaining issues are expected to be resolved through the final implementation of the OPA and ZBA instruments with all Conditions on consent and will no doubt be finalized in the comprehensive SPA process that will follow at the appropriate time.
32In conclusion, the Tribunal agrees with the evidence and will allow the Appeals, in part, as follows in the Order below in accordance with the architectural plans prepared by Dialog dated April 19, 2024, and the servicing plan prepared by Masongsong Associates dated April 29, 2024, (Exhibit 1, B) along with the planning instruments attached as Schedule A and Schedule B for the Proposal, which is approved in principle.
INTERIM ORDER
33THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [34] below and the Official Plan Amendment set out in Schedule A and the Zoning By-law Amendment set out in Schedule B to this Interim Order are hereby approved in principle.
34The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:
a. The Tribunal is advised that the Applicant has submitted a revised Functional Servicing Report to determine the stormwater 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 to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
b. The Tribunal is advised that the Applicant has provided a revised Pedestrian Wind Study, such report to be reviewed with recommendations implemented as part of the amending Zoning By-law(s) and/or secured in a development agreement, to the satisfaction of the Chief Planner and Executive Director, City Planning;
c. The Tribunal has received and approved the Official Plan Amendment and Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;
d. The Tribunal is advised that should it be determined that upgrades are required to the infrastructure to support the development according to the accepted Functional Servicing Report, the Applicant will have entered into appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and General Manager of Transportation Services, or alternatively a Holding Provision shall be included in the final form of the site-specific Zoning By-law Amendment, not to be lifted until such time as the Owner has made satisfactory arrangements, including entering into appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and
e. The Tribunal is advised that City Council has approved the Rental Housing Demolition application (Application 22 193302 NNY 18 RH) 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 existing rental units on the Site, and the Owner has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing the following:
i. The replacement of the existing residential rental units on the lands;
ii. The rents, rental tenure, unit mix, and unit sizes of the replacement rental units;
iii. An acceptable Tenant Relocation and Assistance Plan addressing the right for existing tenants to return to replacement rental units on the lands at similar rents, the provision of alternative accommodation at similar rents, and other assistance to mitigate hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning; and
iv. Any other rental housing-related matters in conformity with Policy 3.2.1.6 of the Toronto Official Plan and Chapter 667 of the Toronto Municipal Code.
35THE TRIBUNAL FURTHER ORDERS that the Site Plan Amendment pursuant to s. 114(15) of the City of Toronto Act, is adjourned sine die;
36The 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.
37If 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 paragraph [34] above have been satisfied and do not request issuance of the Final Order by Wednesday, April 30, 2025, the Applicant and the City shall provide a written status update to the Tribunal by that date.
38The Member may be spoken to in the event any matter or matters should arise in connection with the implementation of this Order.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.
SCHEDULE A
SCHEDULE B