DIG Developments Inc. v. Toronto (City), 2024 CanLII 97516

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 02, 2024

CASE NO(S).: OLT-22-004682

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: 11 120956 NNY 34 SB

Property Address: 78 Tisdale Ave

Municipality: Toronto

OLT Case No.: OLT-22-004682

OLT Lead Case No.: OLT-22-004682

OLT Case Name: DIG Developments Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, S.O. 2006, c. 11, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Site Plan – Failure of Approval Authority to make a decision

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: 10 320052 NNY 34 SA

Property Address: 78 Tisdale Ave

Municipality: Toronto

OLT Case No.: OLT-22-004683

OLT Lead Case No.: OLT-22-004682

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Minor Variance – Approval Authority Refusal of Application

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: A0205/22NY

Property Address: 78 Tisdale Ave

Municipality: Toronto

OLT Case No.: OLT-22-004684

OLT Lead Case No.: OLT-22-004682

Heard: June 11 to 14, 2024 by video hearing

APPEARANCES:

Parties Counsel

Fiera FP Real Estate Financing LP Raj Kehar Narmanda Gunawardana

City of Toronto Cameron McKeich Derin Abimbola

DECISION DELIVERED BY S. DEBOER AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was the Appeal by Fiera FP Real Estate Financing Fund LP (“Appellant”) due to the refusal of the Minor Variance Application under s. 45(12) of the Planning Act by the City of Toronto (“City”) Committee of Adjustment North York Panel (“COA”). The Appellant also appealed the non-decision of the COA pertaining to the Plan of Subdivision Application under s. 51(34) of the Planning Act and the Site Plan Application under s. 114(15) of the City of Toronto Act. The Subject Property concerning these Applications is municipally known as 78 Tisdale Avenue (“SP”). The Tribunal notes that DIG Developments Inc. was the original Appellant to these Applications. Since the time of the original appeals, the Appellant acquired the SP from DIG Developments Inc. and has taken over the appeals to this matter. However, since DIG Developments Inc. was the original Appellant to the appeals, their name will remain on the Title of Proceedings of these appeals.

2The nature of the Minor Variance Application would provide relief from Zoning By-law No. 261-2017 to increase the total number of townhome units from the previously approved 35 units to 52 units. The Minor Variance Application would seek relief to change the orientation of the blocks, reduce permitted setbacks, and increase the overall lot coverage from the permitted 45% to 48%. All of the requested variances before the Tribunal are listed below:

a. To permit a maximum number of dwelling units of 52, whereas By-law No. 261-2017 permits a maximum number of dwelling units of 35;

b. To permit a maximum lot coverage of 48%, whereas By-law No. 261-2017 permits a maximum lot coverage of 45%;

c. To replace Schedule 2 (Outline of Blocks) with a new Schedule 2, as set out below;

d. To replace Schedule 3 (Outline of Blocks 5 and 6) with a new Schedule 3, as set out below;

e. To replace Schedule 4 (Outline of Blocks 2 and 3) with a new Schedule 4, as set out below;

f. To provide a minimum front yard setback of Block 4 of 1.5 metres (“m”), whereas By-law No. 261-2017 requires a minimum front yard setback to Block 4 of 6 m;

g. To permit a maximum height for a building of 12.55 m and four storeys, whereas By-law No. 261-2017 permits a maximum building height of 11.25 m and three storeys.

3The owner of the SP prior to the Appellant had applied for a Zoning By-law amendment to develop the SP constructing 35 townhouses comprising of three-storey units in a total of six townhouse blocks. The Zoning By-law Application proposed to change the use from industrial to residential in order to construct the proposed townhouses. Included in this proposal was a new public street with a cul-de-sac. The City approved Site-Specific Zoning By-law No. 261-2017 for the SP. The former owner had included related Applications for Site Plan and Draft Plan of Subdivision approval. The proposed development was never constructed. The Appellant became the beneficial owner of the SP following a receivership process of the former owner.

4The Appellant then filed a Minor Variance Application, Site Plan Application, and a Draft Plan of Subdivision to the COA in March of 2022. The Applications were heard at the June 6, 2022, COA meeting. The COA ultimately refused the Minor Variance Application and did not decide on the Draft Plan of Subdivision or the Site Plan Applications. The Applications were appealed to the Toronto Local Appeal Body with respect to the Site Plan Application. The Applications pertaining to the Minor Variance Application and the Draft Plan of Subdivision were filed with the Tribunal.

5At the second Case Management Conference (“CMC”) held before the Tribunal on June 6, 2023, it was ruled that all of the Applications would be consolidated to be heard before the Tribunal. The Parties agreed after the CMC to enter Tribunal led mediation which took place in July 2023. The mediation process was unsuccessful. As a result, the Merit Hearing was needed to be heard before the Tribunal.

THE MERIT HEARING

Preliminary Matters

6At the commencement of the Hearing, the Appellant requested that an extra variance be added to the Application. This variance would permit the use of a rooftop patio room not exceeding 15.5 square metres (“m²”) and rooftop terrace safety barriers should not be included in the calculations of building height and total number of storeys. The Tribunal ruled that this requested variance is not minor in nature and if requested, would result in a postponement of the Merit Hearing as further Notice would be needed before the Hearing could commence. The Appellant then revoked the request of this extra variance, and the Tribunal ruled the Merit Hearing could continue as scheduled and no evidence would be allowed that would pertain to this variance.

7The Appellant requested that the Appeals concerning the Draft Plan of Subdivision Application and the Site Plan Application be adjourned sine die and that the Application concerning the minor variances would be the only Application heard before the Tribunal. The City did not object or raise concerns about the Appellant’s request. The Tribunal then ruled that this request was appropriate and that the only Application that would be heard during this hearing event would be the Minor Variance Application.

Exhibits

8The Tribunal entered the following items into evidence for the Merit Hearing:

1 – Appellant Document Book Vol 1

2 – Appellant Document Book Vol 2

3 – City Supplementary Document Book

4 – Witness Statement of Ted Davidson

5 – Ted Davidson Reply Statement to Derrick Wong

6 – Ted Davidson Reply Statement to Grace Gao

7 – Witness Statement of Derrick Wong

8 – Witness Statement of Grace Gao

9 – Appellant Visual book

10 – Plans in front of COA March 2022

11 – Plans in front of Tribunal May 9, 2023

12 – Consolidated Visual City of Toronto OP Maps, site plan comparison etc.

13 – Block Illustration of prior approved development

14 – Shadow study for the Bartley development

15 – City’s Visual Evidence

16 – Description of Site Plan Controls from City’s Website Downloaded on June 10, 2024.

17 – Record of site condition for 78 Tisdale 206347

18 – 104-110 Bartley Drive Plan of Subdivision Application Final Report, Sept. 23, 2019

19 – Schedule 3 to the City of Toronto Official Plan

9It must be noted that the City had raised an issue concerning the Appellant’s Document Books, specifically Tab 24 pertaining to the Servicing Capacity Report and Tab 25 pertaining to the Traffic Operations Report as there were not any experts bought before the Tribunal to provide evidence in chief that could be cross examined by the City. The Tribunal agreed with the City’s position and no testimony could be presented, nor would the Tribunal place any weight upon these specific reports when finalizing a decision.

10The Tribunal notes that two Participant Statements had been received by the Tribunal for this hearing event. The two Participant Statements were from Yasmin Shariff and Ilir Kurizo, who each respectfully reside at 80 and 84 Sufi Crescent. It must be noted for reference that Sufi Crescent is directly adjacent to the west of the SP.

Witnesses

11The following were the Witnesses that were bought before the Tribunal. All the Witnesses were qualified to give expert opinion evidence in their areas of expertise:

• Ted Davidson as an expert in land use planning for the Appellant.

• Derrick Wong as an expert in land use planning and Grace Gao as an expert in urban design, both for the City.

Issues

Does the proposed development have regard for the matters of provincial interest as set out in s. 2 of the Planning Act, in particular s. 2 (f), (h), (i), (j), (o), (p) and (r)?

12It was Mr. Davidson’s opinion that the Application does have regard to these particular sections of the Planning Act and the Application is of provincial interest. The previously approved Zoning By-law Amendment demonstrated that there were adequate provisions for an efficient use of communication, transportation, sewage and water services. The proposed extension of the roadway through the SP and attaching to the lands adjacent to the south will allow for an efficient use of sanitary and water services. The Application will allow for a more efficient and orderly development of a safe and healthy community and will provide for a new public thoroughfare or public street allowing for a more efficient use of traffic flow in and out of the SP. The Application is within walking distance of a major transit initiative which is appropriate for the proposed residential intensification. The final design of the newly proposed public thoroughfare can be addressed during the site plan Application process. The proposed changes to the driveway access for some of the townhouse blocks are appropriate and meet the City’s Urban Design Guidelines and, in his opinion, are an improvement on the original approved Zoning By-law Application.

13Mr. Wong agreed that the Application before the Tribunal is of provincial interest and that the Tribunal shall have regard to the decision that was made by the local planning authority concerning the Application.

Is the proposed development consistent with the Provincial Policy Statement, 2020 including s. 1.1.3.3 and 4.6?

14Mr. Davidson opined that the Application is consistent with the Provincial Policy Statement, 2020 (“PPS”) as the SP is an appropriate location for growth and intensification. The SP has been previously approved for a 35-unit townhouse complex. The proposed additional 17 units would provide an appropriate amount of further intensification as the location of the SP is within walking distance to a major transit initiative. The proposed building type before the Tribunal had previously been approved. The built form and orientation of the building blocks represents a modest intensification and meets the PPS guidelines.

15Concerning s. 4.6 of the PPS, it was Mr. Davidson’s opinion that the Application does take into consideration the local planning context. The proposal provides an appropriate level of intensification and does conform to the City’s Official Plan (“COP”) policies concerning residential intensification.

16Mr. Wong’s opinion concerning the PPS was that the Minor Variance Application is not able to demonstrate that it meets with the COP’s standards such as the Toronto Green Standards and the Application does not include a Transportation Demand Management Strategy. The Application does not demonstrate consistency with s. 1.6.6. of the PPS referring to sewage, water, and stormwater standards. Section 1.6.1 of the PPS concerns public infrastructure that shall be provided in an efficient manner. The Application has not demonstrated as to how this would be achieved. As such, it was his opinion that the Application does not meet the criteria of the PPS.

Does the proposed development conform with the Growth Plan for the Greater Golden Horseshoe (“GGH”), 2020 including s. 5.2.5.8?

17Concerning the GGH, Mr. Davidson opined that the GGH was created and approved after the approval of the previous Zoning By-law Amendment Application. As such, the previous Application did not have any regard to the GGH. The GGH requires municipalities to implement the polices of the GGH in their local OPs. Mr. Davidson continued to opine that the Application before the Tribunal does take into account and conforms with the GGH including the geographical relationship to the Eglinton Crosstown LRT, which is in the final stages of being built for more efficient transit options. The proposed increase in intensification will help meet the housing targets of the City, as required by the GGH. As such, the Application before the Tribunal conforms to the GGH.

18It was Mr. Wong’s opinion that the Application conforms with the broader policies of the GGH by providing a different type of housing that in a largely homogeneous neighbourhood. However, Mr. Wong did opine that the Application does not conform to the policies concerning sewers and other municipal services that are needed for this proposed development.

Does the proposed development maintain the general intent and purpose of the City of Toronto Official Plan, including Policies 2.2 (Structuring Growth in the City), 2.3.1 (Healthy Neighbourhoods), 3.1.1 (Public Realm), 3.1.3 (Built Form) 3.1.4 (Building Types – Townhouse and Low-Rise apartments), 4.1 (Neighbourhoods) and 5.5 (The Planning Process), 5.6 (Interpretation)?

19On the issue concerning Chapter 2 of the COP, it was Mr. Davidson’s opinion that the Application will allow for the completion of a planned street network and link to separate yet adjacent developments together and make for a more efficient use of vehicular traffic. The Application’s proposed street connection with the property to the south will help provide for an efficient use of the City’s water services.

20Mr. Davidson gave opinion that the SP is not an “Established Neighbourhood” as the area is in transition from low scale industrial to residential uses. Most of the lands in the area have been transformed from these industrial forms to residential uses. Most of the forms of residential uses are that of townhouse and other multiple forms of housing. These residential housing forms are appropriate when considering the proximity to a major transit station and commercial establishments. The proposal respects the existing forms of residential uses in the neighbourhood. The Application conforms with Policy 2.3.1.5 (e) as the proposal will complete a local road and extend the road into larger road networks. The proposal allows for an improvement in pedestrian and other forms of transportation and is within the approved distance of a high form of transit.

21Focusing on Chapter 3 of the COP, Mr. Davidson opined that the public realm is further enhanced as the new public street will be complete with the adjacent property to the south and will improve the public realm by allowing for a more efficient use of all forms of transportation and will now fit better into the larger road network. The form of housing proposed will include a form that is mostly proposed to be three bedrooms and is considered to be more ‘family oriented’ than the previously approved Application. The SP is within an area of transition from light industrial to residential. The lands are not designated to be a part of any employment lands. In Mr. Davidson’s opinion, the Application conforms with Chapter 3 of the COP.

22Concerning Chapter 4 – Land Use Designations – of the COP, Mr. Davidson opined that the SP is currently designated as “Neighbourhoods” in the COP. This approved designation allows for residential dwellings including the use of townhouses that are of a similar height, massing, scale, and dwelling types to the surrounding area. The Application meets the prevailing setbacks to buildings in the area. The Application respects the physical characteristics of the area and meets the COP policy of not being higher than four storeys. The Application before the Tribunal conforms with the provisions of s. 4.1.9 of the COP and the Application is compatible with the surrounding area as per s. 4.1.8 of the COP.

23As for Chapter 5 of the COP concerning the planning process, it was Mr. Davidson’s opinion that the Application was completed and circulated in the proper manner and in accordance with the COP. Since this was a Minor Variance Application, a pre-application meeting was not required nor was there a need for a mandatory public meeting. All of the relevant information was submitted to the City and to the COA. The Appellant followed all the correct steps and procedures to necessitate a complete Application and it was heard in its entirety before the COA. As such, Mr. Davidson opined that the Appellant met all the requirements of Chapter 5 of the COP.

24It was Mr. Wong’s opinion that the proposal does not comply with Policy 2.3.1.1 as the Application has the least amount of any open space in the area and does not respect the existing physical character of the area. Mr. Wong continued with his opinion that the Application does not comply with Policy 3.1.1.6 of the COP as there is a lack of information that is needed to confirm compliance to this policy. Policy 3.1.4 directs that townhouse and low-rise developments are to be no taller than four storeys in height. He opined that the proposal does not include a grading plan, nor does it provide for adequate daylight on occupied ground floors. As such, it does not comply to the Policies of 3.1.4.

25Concerning Policy 4.1.5, Mr. Wong opined that while the proposal is materially consistent with the prevailing character of the neighbourhood, a 52-unit hybrid back-to-back townhouse development does not comply with Policy 4.1.5.

Does the proposed development meet the general intent and purpose of the City of Toronto Townhouse and Low-rise Apartment Design Guidelines?

26Mr. Davidson opined that the requested relief to the development blocks are minor in nature. The redesign of the blocks is to allow for the completion of the public street. By purposing this new completed public street, the Application will eliminate all front facing garages and all vehicular access to the townhomes will be from a rear garage entrance. Since there is not a purposed cul-de-sac separating the SP from the adjacent property to the South, the townhouse blocks can be proportionately expanded to allow for the extra townhouse units while maintaining the appropriate setbacks. The requested relief pertaining to storeys and height are compatible with the surrounding area. The Zoning By-law currently permits a height of three storeys with a mechanical penthouse and has an overall height of 11.25 m. The Appellant is asking for relief to add a storey for a total of four storeys and a total height relief of 12.55 m. The total lot coverage of 48% from the permitted 45% would be in keeping with the general intent and purpose of the above stated guidelines as the lot coverage would equal what had previously been permitted. Mr. Davidson opined that many of the elements of the proposal can be dealt with at the Plan of Subdivision and the Site Plan Application process. Mr. Davidson opined that the Application does meet the general intent and purpose of the City of Toronto Townhouse and Low-rise Apartment Design Guidelines.

27Ms. Gao opined that there are many items in which the Minor Variance Application is not in compliance with the Townhouse and Low-Rise Apartment Guidelines. Mr. Gao opined that the Application does not meet the Guidelines of s. 3.1 Streets, Lanes and Walkways as inter alia, the laneways have no soft landscaping, the laneways do not provide room for garbage collection or snow storage. Concerning the building design, it was Ms. Gao’s opinion that the proposal is for a five-storey building and not a previously approved three-storey building. The building height exceeds the approved 11.5 m height permission and in accordance with the Guidelines, the minimum facing distance should be 7.5 m whereas the Application provides for 6.5 m. The Applicant has not provided any supporting materials pertaining to snow storage, community mailboxes, utilities or garbage pickup. Without these supported materials, it was Ms. Gao’s opinion that the Application does not meet these Guidelines and should not be approved.

Does the Minor Variance Application maintain the general intent and purpose of the Zoning By-law No. 7625 and site-specific Zoning By-law Nos. 261-2017 and 762-2017 with respect to the variances sought for: a) Building Height; b) Number of Storeys; c) Number of Dwelling Units; d) Lot coverage; e) Outline of Proposed Blocks; and f) Front yard setbacks?

28It was Mr. Davidson’s opinion that the Application is similar in proposed height to adjacent developments. There are other developments in the immediate area that are in the range of height of 13 to 14 m. The Application’s requested relief of 12.55 m is not out of the realm of overall dwelling heights in the area. Therefore, he opined that the Application is compatible with the area. Concerning the four-storey request, it was his opinion that four storeys are permitted within the COP and the site-specific polices pertaining to the SP. Focusing on the increase of total units, this intensification request can be accommodated without creating any adverse impacts to the surrounding properties and city services such as water and sewer requirements. As for the requested relief in lot coverage, it was Mr. Davidson’s opinion that the total lot coverage before the Zoning By-law approval in 2017 was 48% and the Appellant is asking for the same total lot coverage as was approved before the 2017 Zoning By-law approval took place. This requested relief maintained the general intent and purpose to the Zoning By-laws. Concerning the outlined proposed blocks, it was Mr. Davidson’s opinion that the proposed public street allows for the townhouse blocks to be adjusted to fit better into a form that takes into consideration the completed public street. The realigning of these blocks is minor in nature and does not adversely affect the surrounding neighbourhood. The requested increase in lot coverage would not allow any lot coverage that is greater than what was previously allowed. As for the front yard setbacks, Mr. Davidson opined that they have been maintained or improved. As such, the requested variance is in keeping with the general intent and purpose of the Zoning By-law.

29Mr. Wong opined that the front-to-back relationship of the proposal is not appropriate and that a total of 52 units is an overdevelopment of the SP. Mr. Wong opined that the design of the private driveway was unsafe and inadequate. The approved 35-unit proposal is the appropriate level of intensification for the SP. Any further intensification would be inappropriate.

Are the proposed variances minor in nature, both individually and cumulatively, in particular with respect to: a) Impact on adjacent land uses, including privacy and overlook; and b) Ability to store and remove solid waste?

30With regards to this issue, Mr. Davidson opined that the requested additional height is in keeping with the lands directly to the south of the SP and is compatible to the surrounding area. The setbacks to the properties located directly to the west of the SP have been maintained. As for the issue concerning storing and removing of solid waste, this is not an item that requires a minor variance permission. It was Mr. Davidson’s opinion that items such as this are a part of the draft plan of subdivision of the site plan process.

31Mr. Wong opined that these two issues are important and that the Appellant needs to prove how these issues are to be agreed upon and without data or reports to determine how these items are to be mitigated, then the Minor Variance Application does not meet the four tests.

Are the proposed variances desirable for the appropriate development of the land, and in particular, is the site organization, proposed vehicular and pedestrian access, and the proposed location of buildings, utilities, landscaped open spaces and the public street appropriate?

32Mr. Davidson opined that there is very little change to the site itself. In fact, the locations of the townhouse blocks are the same as was previously approved. The landscape open spaces have not been altered. The only change is the removal of the cul-de-sac and replacing it with a completed public roadway. This completed public roadway to the Bartley project directly to the south has been desired by City Staff. Mr. Davidson opined that the changes to Block 4 to accommodate the proposed public roadway is still in keeping with the City’s Townhouse and Low-Rise Apartment Guidelines. It was his opinion that the proposed Block 4 is an improvement over the previously approved Block 4 when considering the proposed building setbacks.

Are the Minor Variance and Site Plan Control Applications premature in the absence of a Draft Plan of Subdivision Application?

33Mr. Davidson gave opinion that the Tribunal is only hearing the Minor Variance Application that is before it. The Draft Plan of Subdivision is not being heard before the Tribunal and therefore cannot be considered premature.

34It was Mr. Wong’s opinion that all these reports are necessary in order to provide consistency between the Applications. Without all these planning justification reports, the City could be held to the permissions of the Minor Variance Application and would be handcuffed in the approval of the Draft Plan of Subdivision Application and the Site Plan Control Application.

Are the Minor Variance and Site Plan Control Applications premature in the absence of supporting information including: a) Accessibility Design Standards Checklist; b) Project Data Sheet; c) Contaminated Site Assessment; d) Geotechnical Study/Hydrogeological Review; e) Stormwater Management Report; f) Environmental Impact Study; g) Servicing Report; h) Transportation Impact Study; i) Tree Preservation Plan; j) Energy Efficiency Report; k) Tree Preservation Plan; l) Energy Efficiency Report; m) Toronto Green Standard (Version 4) Checklist; n) Planning Rationale; o) Energy Strategy; p) Boundary Plan of Survey; q) Concept Site and Landscape Plan; r) Lighting Plan; s) Public Utilities Plan; t) Site Grading Plan; u) Site and Building Elevations; v) Roof Plan; and w) Topographical Survey.

35It was Mr. Davidson’s opinion that these reports are not a part of a Minor Variance Application. These reports had been previously filed with the previously approved site-specific Zoning By-law in 2017. Those reports would be needed if this was another Zoning By-law Application. However, since this is a Minor Variance Application and not a Zoning By-law Application, then these studies are not needed. Mr. Davidson gave opinion that some of these studies will require updating, however, that is part of the separate Draft Plan of Subdivision and the Site Plan Application stage.

36Mr. Wong’s opinion was similar to the previous issue and that approval of the Minor Variance Application would limit what the City could implement with regards to the Plan of Subdivision and Site Plan Applications.

In the event the proposed development is approved in whole or in part, should the Tribunal withhold its Order(s) on the minor variances until the Tribunal receives confirmation from the City Solicitor that the following conditions have been satisfied:

a) The owner is to provide the following to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services:

i) Contaminated Site Assessment; ii) Geotechnical Study/Hydrogeological Review; iii) Stormwater Management Report; iv) Environmental Impact Study; v) Servicing Report; and vi) Transportation Impact Study.

b) The owner is to provide the following to the satisfaction of the Chief Planner and Executive Director, City Planning:

i) Tree Preservation Plan; ii) Energy Efficiency Report; iii) Toronto Green Standard (Version 4) Checklist; iv) Planning Rationale; v) Energy Strategy; vi) Boundary Plan of Survey; vii) Concept Site and Landscape Plan; viii) Lighting Plan; ix) Public Utilities Plan; x) Site Grading Plan; xi) Site and Building Elevations; xii) Roof Plan; and xiii) Topographical Survey.

37It was Mr. Davidson’s opinion that these studies being requested by the City are not requirements of a Minor Variance Application and should not be attached as conditions to any Order by the Tribunal should the Tribunal approve the Minor Variance Application. These reports can be submitted or updated in the Draft Plan of Subdivision or the Site Plan Approval stage.

38It was Ms. Gao’s opinion that these studies are relevant and needed to justify all the Applications. Not having these reports means that the Applications are incomplete, and the Appellant does not have enough evidence to prove that any of the applications should be approved by the Tribunal.

In the event the proposed development is approved in whole or in part, should the Tribunal withhold its Order(s) on the Site Plan Control Application until the Tribunal receives confirmation from the City Solicitor that the following conditions have been satisfied: a) the owner has submitted a draft plan of subdivision Application and received approval from the Chief Planner and Executive Director, City Planning; b) the City has issued Notice of Approval Conditions for the Site Plan Control Application to the satisfaction of the Chief Planner and Executive Director, City Planning; and c) the owner has completed all required conveyances to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and the City Solicitor.

39Mr. Davidson opined that these requests from the City are not a part of a Minor Variance Application process. These requested reports can be either updated or produced at the site plan or plan of subdivision stage.

40Mr. Wong opined that these conditions are necessary to hold the Appellant to the standards that have been established with the City and the City’s OP.

Four Tests of a Minor Variance

Is the Application in keeping with the general intent and purpose of the Official Plan of the City of Toronto?

41Mr. Davidson opined that the Application does meet the general intent and purpose of the COP. The Application meets the general intent and purpose of Chapters 2, 3, 4 and 5 and meets the general intent and purpose of the site-specific COP Policy 89. The Application meets the general intent and purpose of the Townhouse and Low-rise Buildings Guidelines as the townhouses are built to a maximum of four storeys as per the Guidelines.

42It was Mr. Wong’s opinion that the Application does not conform to the COP. The Application does not conform specifically to Policy 2.3.1.1 concerning consistency of development in neighbourhoods and respecting the existing physical character of buildings and streetscapes. Mr. Wong continued to give opinion that the Application may not comply with Policy 3.1.1 pertaining to open spaces. Without more information from the Appellant, he cannot confirm whether the Application complies to this Policy. Mr. Wong opined that the Application does not comply with Policy 3.1.4 (c) as the Application does not allow for enough daylight and privacy on occupied ground floor units, building heights and angular planes. Mr. Wong continued to opine that the Application does not comply with Policy 4.1.5 which focuses on prevailing heights, massing and scale of buildings and prevailing building types. Overall, it was Mr. Wong’s opinion that the Application does not conform to the COP.

43Ms. Gao gave opinion that a grading report is needed to understand the building heights in comparison to the grade of the SP and the land grade’s relationship to the adjacent lands. If the Appellant had gone through a Zoning By-law Application instead of a Minor Variance Application, then the grading report – amongst other required reports of a Zoning By-law Application – would have been a part of the By-law Application whereas it is not a requirement of a Minor Variance Application.

Is the Application in keeping with the general intent and purpose of both the site-specific zoning by-laws and the relevant provisions of former North York Zoning By-law No. 7625?

44It was Mr. Davidson’s opinion that the Application does not change the purpose or use of the SP. The Application does require some minor reconfigurations to some of the townhouse blocks due to the newly proposed public street. This reconfiguration eliminates the front yard driveways and garages and will provide consistency with the other blocks. The Application is once again in keeping with the City’s Urban Design Guidelines. The Application’s requested relief is in keeping with the Zoning By-law as it does not change the use of the SP and is in a similar form that is already approved by the Site-Specific Zoning By-law.

45Mr. Wong gave opinion that the Application is an overdevelopment of the lands. The proposed back-to-back townhouses does not maintain the general intent and purpose of the Zoning By-law. The request of a total of 48% lot coverage is an overdevelopment and a 45% coverage for 35 townhouse units is more appropriate and does conform to the existing Zoning By-law. The proposed townhouse blocks do not meet the general intent and purpose of the Zoning By-law as the previously approved Zoning By-law allows for 35 units which was an appropriate level of development.

Is the Application desirable for the appropriate development or use of the land?

46In Mr. Davidson’s opinion, the Application’s intent is for the same use that is already permitted. The Application is requesting relief for intensification of a previously approved townhouse complex. The total lot coverage would increase by 3% to the originally approved 48%. The requested height relief and additional units will not have any impact with the surrounding area and will be similar in nature to other townhouse complexes in the area. The Application proposes to complete a public roadway with the development to the South and the public street is desired by City Staff and will provide continuity to both the SP and the southern development.

47It was Mr. Wong’s opinion that the Minor Variance Application is an overdevelopment of the site. The location of the buildings and the proposed location of the public street are untested against City standards. Without further clarifying information, the Application is not an appropriate use of the lands.

48Ms. Gao opined that the requested variances are not desirable nor are they appropriate. The footprints of the townhouse blocks are excessive, do not have adequate front yard setbacks, do not have enough building separation between building blocks, there is limited opportunity for tree planting and the building orientations are inappropriate when taking into account the adjacent properties. The variances are not minor in nature and should not be approved.

Is the Application minor in nature?

49Mr. Davidson opined that the Application and the requested relief will not create any undue adverse affects to the SP or the surrounding developments. The requested increase in intensification is minor on both a qualitative and quantitative scale. The use of the SP is the same as was already approved. The proposed completed public street with the development to the south is an improvement as compared to the previously approved cul-de-sac and the completed public street is desired by City Staff.

50Mr. Wong opined that the requested relief from 35 townhouse units to 52 units is an overdevelopment of the lands. The Application would have a negative impact to the abutting townhouses on Sufi Crescent. The requested increase in units is not minor in nature and should not be approved.

Overall Opinions

51It was Mr. Davidson’s overall opinion that the Minor Variance Application should be approved as the Application allows for a form of intensification that is suitable for the SP. The intensification would provide for further housing options which is needed in the City, and in this particular case, near a Major Public Transit Station. When the previous Zoning By-law Application was approved in 2017, it was done without a major transit station in the area. Now that the Scarborough LRT is nearing completion, this extra intensification would be appropriate while still using the proposed built form of townhouses. Since the use of the SP is still the same as was previously approved, there was not a need for another Zoning By-law Amendment Application and the Minor Variance Application was an appropriate instrument to use to increase the intensification of the SP.

52It was Mr. Davidson’s opinion that the Application is consistent with the PPS. The addition of 17 dwelling units will provide for a level on intensification that is similar to the surrounding area considering the location of the SP as it is near a Major Transit Station Area. The Application conforms to the GGH as it is providing for an appropriate level of residential intensification that is within walking distance to a Proposed Major Transit Station Area. The Application before the Tribunal meets the four tests and conforms to the COP, conforms to the Zoning By-law and is good land use planning. The Application should be approved as presented to the Tribunal.

53Mr. Wong opined that the Application is an overdevelopment of a previously approved townhouse project. It was his opinion that if the Application was approved by the Tribunal, it would tie the City’s hands in the Site Plan and the Plan of Subdivision process. The requested variances do not meet the four tests of a minor variance when examined individually or in totality. Mr. Wong opined that his overall opinion has been consistent throughout the Application process and is in agreement with the decision of the COA to deny the Application.

54Ms. Gao’s overall opinion was that the Minor Variance Application that is before the Tribunal does not conform to the COP, nor meet the Townhouse and Low-Rise Apartment Guidelines. The Application does not meet the general intent and purpose of the COP. The absence of supporting reports or materials does not provide enough information to allow the Application to be approved.

FINDINGS AND ANALYSIS

55In rendering a Decision, the Tribunal must consider the evidence that has been presented before it, including any Participant Statements. The Tribunal must give regard to the decision of the COA and items presented before the COA, including public comments, both written and orally submitted.

56The Tribunal is aware that the City was not in agreement with the Appellant that a Minor Variance Application was the appropriate method to be taken concerning the SP and that a Zoning By-law Amendment should have been the instrument to be used for the SP.

57The Tribunal notes that the only Application before it is the Minor Variance Application. The Tribunal ruled at the beginning of the Merit Hearing that the Appeals concerning the Plan of Subdivision and the Site Plan Application were to be adjourned sine die until the Minor Variance Application was decided upon.

58The Tribunal reiterates as noted in paragraph [9] of this decision that Tab 24 (Servicing Capacity Report) and Tab 25 (Traffic Operations Report) of the Joint Document Book Volume 2 were not taken into consideration in the Tribunal’s analysis of the evidence as there was not an independent expert to provide oral testimony to these reports.

59The Tribunal finds that the Appellant had the right to use the Minor Variance Application process as there was not a change to the use of the SP. The Minor Variance Application used in this matter is requesting relief from the Site-Specific Zoning By-law which allowed for inter alia 35 dwelling units, a lot coverage of 45%, a building height of three storeys and a total building height of 11.25 m.

60The Tribunal must reiterate the purpose of a Minor Variance Application. The purpose is to allow what is considered to be minor changes or permissions for what can be built or allowed on a property.

61Concerning the Planning Act, the Tribunal prefers the evidence of Mr. Davidson and finds that the Application has regard for provincial interest as per s. 2 of the Planning Act.

62Focusing on the PPS, the Tribunal finds that Mr. Davidson has demonstrated that the Application will promote a form of intensification that is similar to other forms in the immediate area. These similar forms were agreed upon by both of the land use planning experts in their Agreed Statement of Facts.

63As for the GGH, the Tribunal finds that the previously approved planning instrument for the SP was completed prior to the implementation of the GGH. The requested relief does take into account the GGH and housing targets that have been set out in the GGH. The proposal also takes into account the proximity to the Eglinton Crosstown LRT and the requirements for intensification along Major Transit Stations. Therefore, the Tribunal finds that the proposal does conform to the GGH.

64In consideration of the COP, the Tribunal prefers the evidence of Mr. Davidson. The Appellant has demonstrated that the Minor Variance Application will conform to the COP, specifically the issues considered under Chapters 2, 3, 4 and 5 of the COP that pertain to the Minor Variance Application. Mr. Davidson presented evidence that the previously approved 35-unit townhouse proposal did conform to the COP and that the Minor Variance Application before the Tribunal still conforms to the COP. Mr. Davidson has demonstrated that the Application will allow for a built form that will fit into the existing or planned context of the area. The Minor Variance Application proposes to complete a road network that – in Mr. Davidson’s opinion – is wanted by the City’s Transportation Staff. This opinion was not opposed by the City.

65The Tribunal agrees that the proposed completed roadway would be a benefit not only to the persons occupying the proposed townhouses on the SP, but the persons occupying the townhomes directly adjacent to the south of the SP as it would allow a complete throughfare to take place.

66The Tribunal found that many of the concerns brought forth by the City’s experts were issues that pertain to the Plan of Subdivision and the Site Plan Applications. In layman’s terms, the Minor Variance Application Appeal allows for the “what” can be built, whereas the Plan of Subdivision and Site Plan Appeals focus on the “how”. As such, the Tribunal finds that the City’s experts were more focused on the “how” than the “what”. The City’s position was that the approval of the Minor Variance Application by the Tribunal would ‘handcuff” the City in relation to the other two planning instruments. The Tribunal disagrees with this argument. The Minor Variance Application – if approved – would create the requested permissions as to what can be built – as a limit – on the SP. The Appellant and City could agree to allow these maximum permissions to occur, or the Appellant and the City could agree to a lesser amount of total dwelling units through the Plan of Subdivision and Site Plan Appeals.

Four Tests of a Minor Variance

Does the Application meet the general intent and purpose of the COP?

67With regard to this first test of a Minor Variance Application, the Tribunal prefers the evidence of Mr. Davidson. Mr. Davidson has provided evidence that the Application meets the relevant polices to Chapters 2, 3, 4 and 5 of the COP. The requested variances demonstrate that the proposal is similar to the previously approved 35-unit townhouse complex. The requested variances allow for an appropriate level of intensification that take into account the surrounding neighbourhood, including the developments that have occurred adjacent to the SP. The Tribunal agrees with Mr. Davidson’s opinion that the SP is an area in transition from a low scale industrial use and is not an “Established Neighbourhood”, which conforms to the Site Area Specific Policy 89.

Does the Application meet the general intent and purpose of the applicable Zoning By-laws?

68The site-specific Zoning By-law was implemented in 2017 which allowed for the conversion of the SP from “Industrial” to “Residential Multiple Dwelling Units”. The Tribunal agrees with the evidence provided by Mr. Davidson that the use of the SP is not changing. The Zoning By-law allows for a maximum of four storeys and a total building height of 11.25 m. The Minor Variance Application is requesting a total building height increase from 11.25 m to 12.55 m. The Application is requesting for a total lot coverage of 48% whereas the Zoning By-law allows for a total coverage of 45%. The Tribunal finds that this requested increase is in keeping with the general intent of the Zoning By-law. The Tribunal finds that the replacement of the building block Schedule is in keeping with the general intent of the Zoning By-law as it allows for an efficient intensification of the SP and the requested front yard setback of Block 4 is in keeping with the general intent of the Zoning By-law.

Are the requested variances desirable and appropriate for the development of the land?

69With regard to the third test of a Minor Variance Application, the Tribunal finds that the Minor Variance Application is adding a proposed intensification that is appropriate and compatible with the surrounding area. To provide further context, in terms of land use planning, the term “compatibility” does not mean “the same as, nor does it mean being similar to”. Being compatible merely implies the capability of being able to coexist in harmony. The Tribunal finds that the Minor Variance Application is compatible and will provide an appropriate form on intensification that is similar to the surrounding neighbourhood.

Are the variances minor in nature?

70The Tribunal prefers the evidence of Mr. Davidson in that the proposed development blocks are similar in nature. Blocks 1, 2, 3 and 6 are essentially very similar as compared to the 35-unit approved development. Blocks 4 and 5 have further changes in size due to the proposed roadway as to the previously approved development which includes a cul-de-sac. A proposed elimination of this cul-de-sac allows for a complete roadway with the adjacent development to the south and allows for a more efficient intensification of the SP. The proposed completed roadway allows for the additional 3% of lot coverage to be attained in an efficient fashion and the requested overall height request will allow for a four-storey development to occur in an appropriate manner.

71Overall, the Tribunal finds that the evidence presented by the Appellant has demonstrated that the four tests of each minor variance request has been met. However, the Tribunal must take into consideration the totality of the requested variances and their overall effect on the SP and the surrounding area. With that in mind, the Tribunal finds that the requested minor variances have a cumulative effect that has an overall positive impact when taking into consideration the proposed completed road network, the proximity to a Major Transit Station Area and a requested intensification that is deemed as appropriate by the Tribunal.

Conclusionary Findings

72The Tribunal finds that the Minor Variance Application is of provincial interest as per s. 2 of the Planning Act. The Tribunal finds that the Minor Variance Application is consistent with the PPS and conforms to the GGH.

73The Tribunal finds that the Appellant has demonstrated that the Minor Variance Application has met the four tests as set out in s. 45(1) of the Planning Act. The Tribunal finds that the City’s arguments or evidence against the Minor Variance Application before the Tribunal were focused on issues pertaining to the Plan of Subdivision and the Site Plan Appeals. The Tribunal notes that it ruled at the beginning of the Merit Hearing that the only application that was to be heard was the Minor Variance Application. The Plan of Subdivision and the Site Plan Appeals were adjourned sine die until the Decision pertaining to the Minor Variance Application had been determined.

74The Tribunal finds that the Minor Variance Application’s intensification is appropriate when taking into consideration the SP’s geographical proximity to a Major Transit Station Area. The proposed townhouses are similar in nature to the adjacent properties and will be compatible with the surrounding neighbourhood.

75The Tribunal finds that the requested conditions by the Appellant of an Interim Order are appropriate, however, these conditions do not absolve the Appellant of any further conditions, reports or requirements of the City pertaining to the Appellant’s Draft Plan of Subdivision and the Site Plan Appeals.

INTERIM ORDER

76THE 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 Attachment B below, and the variances to the City of Toronto By-law No. 261-2017 as set out in Attachment A below are hereby authorized in principle.

77The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor that the conditions in Attachment B have been satisfied.

78The Panel Member will remain seized for the purpose of issuing the Final Order.

79If the Parties do not inform the Tribunal that the conditions in Attachment B have been satisfied and the request of a Final Order is not made by Thursday, June 26, 2025, the Appellant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation of the conditions in Attachment B and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the even the conditions of Attachment B are not satisfied by the above indicated date, or by any other deadline the Tribunal may impose, the Tribunal may then dismiss the Appeal.

80The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines or deadlines required to satisfy the conditions in Attachment B and the issuance of the Final Order.

“S. deBoer”

S. deBOER

MEMBER

Ontario Land Tribunal

Website: 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 A

MINOR VARIANCES TO THE CITY OF TORONTO

ZONING BY-LAW NO. 261-2017

1. To permit the maximum number of dwellings units of 52, whereas By-law 261- 2017 permits a maximum number of dwellings of 35;

2. To permit a maximum lot coverage of 48%, whereas By-law 261-2017 permits a maximum lot coverage of 45%;

3. To replace Schedule 2 (Outline of Blocks) with a new Schedule 2, as attached;

4. To replace Schedule 3 (Outline of Blocks 5 and 6) with a new Schedule 3, as attached;

5. To replace Schedule 4 (Outline of Blocks 2 and 3) with new Schedule 4, as attached;

6. To provide minimum front yard setback of Block 4 of 1.5 metres, whereas By- law 261-2017 requires a minimum front yard setback to Block 4 of 6 metres;

7. To permit a maximum height of a building of 12.55 metres and four storeys, whereas By-law 261-2017 permits a maximum building height of 11.25 metres and three storeys.

ATTACHMENT B

APPROVAL CONDITIONS

1. The Tribunal approves, on an interim basis, the minor variances at Attachment “A” to this Interim Order with the Final Order being withheld until the Tribunal has been advised that the following conditions have been met:

a. that a transportation report in a form satisfactory to the City has been submitted in support of the minor variances that confirms that the increase in unit count for the subject site is feasible; and

b. that a servicing report in a form satisfactory to the City has been submitted in support of the minor variances that confirms that the increase in unit count is feasible;

2. The final Order of the Tribunal approving the minor variances shall be subject to the following subsection 45(9) Planning Act conditions:

a. Submission of a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code 813, Trees Article II Trees on City Street;

b. Submission of a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

3. The Tribunal may be spoken to concerning issues arising from the implementation of this Order.

Tribunal Registrar