Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 10, 2025
CASE NO(S).:
OLT-24-000009
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Markham Suites Hotel Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a high density residential mixed-use development consisting of five new buildings and a public park
Reference Number:
PLAN 20 128653
Property Address:
8500 Warden Avenue
Municipality:
City of Markham
OLT Case No:
OLT-24-000009
OLT Lead Case No:
OLT-24-000009
OLT Case Name:
Markham Suites Hotel Limited v. Markham (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Markham Suites Hotel Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a high density residential mixed-use development consisting of five new buildings and a public park
Reference Number:
PLAN 20 128653
Property Address:
8500 Warden Avenue
Municipality:
City of Markham
OLT Case No:
OLT-24-000010
OLT Lead Case No:
OLT-24-000009
Heard:
December 04, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
City of Markham (“City”)
Pitman Patterson
Katie Butler
Markham Suites Hotel Limited (“Applicant/Appellant”)
Joseph Hoffman
David Bronskill (in absentia)
York Region Standard Condominium Corporation No. 1122
Russell Cheeseman
DECISION DELIVERED BY W. daniel best ON DECEMBER 4, 2024 AND INTERIM ORDER OF THE TRIBUNAL
Link to Interim Order
INTRODUCTION
1The Tribunal convened a hearing to consider a settlement with regard to appeals brought pursuant to s. 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) by the Applicant/Appellant against the non-decision of the City concerning an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) to permit the construction of a high-density residential mixed-use development.
2The property municipally known as 8500 Warden Avenue (“Subject Property”) is located at the southwest corner of Highway 7 and Warden Avenue and is approximately 4.12 hectares (“ha”) in size. The Subject Property has approximately 219.9 metres (“m”) of frontage along Highway 7 and approximately 193.3 m of frontage along Warden Avenue. The Subject Property is currently occupied by the Hilton Toronto/Markham Suites Hotel Conference Centre and Spa and is surrounded by a surface parking lot. The general area in proximity to the Subject Property is largely occupied by mid-rise and tall residential, office and mixed-use buildings.
3The proposed amendments to the City Official Plan (“OP”) and Zoning By-law (“ZBL”) would permit the re-development of the Subject Property to allow for five high-rise towers, with residential and non-residential uses and a public park adjoining the City-owned lands to the north. More particularly, the applications propose to redevelop the Subject Property with five buildings of heights of 40, 45, 50, 55, and 50 storeys for a total of 3,049 residential units. The proposed park would abut the City-owned lands to the north of the Subject Property that would create a contiguous public park approximately 5,160.6 square metres (“m2”) in size to serve as a gateway to the intersection of Warden Avenue and Highway 7. Access to the Subject Property is proposed from Courtyard Lane, Clegg Road, and Warden Avenue, with internal site circulation by a circular private road.
4The Parties advised that a settlement had been reached. The following table provides a statistical comparison of the original proposal and the current proposal.
Statistics
Original Proposal (September 2020)
Current Proposal (October 2024)
Site Area (Gross)
41,204 m2
41,194 m2
Parkland Dedication On-Site City-Owned Lands
1,940 m2
5,160 m2 3,144 m2 2,016 m2
Gross Floor Area Residential GFA Non-Residential GFA Hotel / Conference Centre Retail GFA Office GFA
333,192 m2 270,888 m2 62,304 m2 40,613.5 m2 6,774.9 m2 14,917 m2
306,741 m2 250,934 m2 52,082 m2 39,074 m2 3,639 m2 9,369 m2
Density
8.49 FSI (8.08 FSI including park) 7.20 FSI (excluding retained hotel, including park)
8.06 FSI (7.45 FSI including park) 6.50 FSI (excluding retained hotel and conference centre, including park)
Number of New Buildings
7
5
Building Heights (Storeys)
55, 55, 55, 55, 55, 45, 3
40, 45, 50, 55, 50
Dwelling Units
3,552 units
3,049 units
Parking Spaces
2,651 spaces
2,655 spaces
Bicycle Parking Spaces
1,191 spaces
1,882 spaces
ISSUES
5Under Rule 12.1 of the Tribunal’s Rules of Practice and Procedure, the issues to be addressed by the Tribunal when considering a proposed settlement are whether all statutory requirements and the public interest are satisfied. Based on these considerations, the Tribunal will determine whether the sought OPA and ZBA should be approved, amended, or denied and whether the proceedings should be continued or dismissed.
6When considering an application to amend an OP, filed pursuant to s. 22 and an application to amend a ZBA, filed pursuant to s. 34 of the Act, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and regard to the decision of the City and the information considered by it pursuant to s. 2.1(1) of the Act.
7Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2024 (“PPS”). The Tribunal must also be satisfied that the ZBA conforms with the applicable OPs in effect and represents good planning.
SUBMISSIONS AND EVIDENCE
8In support of the proposed settlement, the Applicant filed the following Exhibits:
Exhibit 1: Document Book, received November 28, 2024
Exhibit 2: Witness Statement of David Charezenko, dated October 23, 2024
Exhibit 3: Supplemental Affidavit of David Charezenko (post-hearing, requested by the Tribunal), dated December 13, 2024
9Mr. Charezenko is a Principal at a land-use planning consulting firm. Based on his experience and expertise, the Tribunal qualified him to provide opinion evidence as an expert in land use planning.
10Mr. Charezenko stated that the Settlement Proposal supports intensification policy directions within built-up urban areas through efficient use of the Subject Property, which is well served by municipal infrastructure, including existing frequent and higher-order transit.
11Mr. Charezenko advised that the Subject Property is located within Markham Centre, an identified strategic growth area and is located within a Major Transit Station Area.
12Mr. Charezenko opined that the Settlement Proposal would contribute to an appropriate range and mix of housing options and densities to meet the projected market-based and affordable housing needs of current and future residents through transit-supportive development and intensification.
13Mr. Charezenko stated that the Settlement Proposal will revitalize the site located within Markham Centre, with the new buildings arranged in a perimeter plan around the edges of the Subject Property, parallel to Highway 7, Warden Avenue, Clegg Road, and Courtyard Lane. He continued that the street-oriented development, with discernable podium and tower elements, in tandem with active at-grade uses, new parkland, landscaping and streetscaping improvements, will provide for a high quality of the public realm on the Subject Property and result in a considerable improvement over the existing condition.
14Mr. Charezenko opined that the proposed height and massing would fit harmoniously within the existing and planned built-form context and would have no unacceptable built-form impacts on nearby properties or the public realm. He stated the Subject Property is located within a high-rise context and is well separated from the closest low-rise residential neighbourhoods and other shadow-sensitive areas.
15Mr. Charezenko advised that the Settlement Proposal will be a high-quality addition to Markham Centre, in keeping with the built-form policies of the OP and the nodal development pattern emerging around the Cedarland Bus Rapid Transit Station and landmark intersection between the Highway 7 and Warden Avenue corridors.
16Mr. Charezenko opined that the Settlement Proposal represents good planning and urban design and addresses the relevant matters of provincial interest identified in s. 2 of the Act, is consistent with the PPS and conforms with the York Region 2010 Official Plan (“ROP-2010”), is consistent with the York Region 2022 Official Plan (“ROP- 2022”), and conforms with the Town of Markham Official Plan-1987 (“OP-1987”), Markham Centre Secondary Plan-1997 (“MSP”) and the City of Markham Official Plan-2014 (“OP-2014”).
ANALYSIS AND FINDINGS
17Under Rule 12.1, if all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving a proposed settlement with any necessary amendments. In considering the statutory provisions and the public interest, the Tribunal must determine whether the outcome of the proposed settlement conforms with the provisions of the applicable legislation. This informs the Tribunal on whether the appeals should be allowed or dismissed.
18The Tribunal accepts the uncontradicted planning opinion evidence of Mr. Charezenko in its entirety. The Tribunal had regard for the decision and considered the information available to City Council pursuant to s. 2.1(1) of the Act and finds that the Settlement Proposal addresses the relevant matters of provincial interest identified in s. 2 of the Act, is appropriate and desirable from a land use planning perspective, is consistent with the policy framework expressed in the PPS and conforms with the ROP- 2010, is consistent with the ROP-2022, and conforms with OP-1987, MSP, and OP-2014, and has appropriate regard for applicable guidelines.
19Mr. Charezenko recommends that the Tribunal should withhold its Final Order until the conditions listed in paragraph [21] below are satisfied. Should it be determined by the City and the Applicant that the conditions are satisfied for any particular phase of development, the Tribunal would issue its Final Order for such phase only, with the Tribunal’s Final Order for such other phases to be issued at such time as the conditions for those phases are satisfied.
ORDER
20THE TRIBUNAL ORDERS THAT the appeals are allowed in part, on an interim basis, contingent upon the satisfaction of the conditions set out in paragraph [21] below, and the Official Plan Amendment set out in Attachment 1, and the Zoning By-law Amendment set out in Attachment 2 to this Interim Order, are hereby approved in principle.
21The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following prerequisite matters:
The Applicant has entered into any agreements required to secure any upgrades or improvements to the existing municipal infrastructure should they be required, all to the satisfaction of the City (for greater clarity, without limiting the generality of the foregoing, the City specifically requires the Applicant to enter into an agreement with the City related to municipal infrastructure and servicing, to the satisfaction of the City’s Director of Engineering or designate);
The proposed Official Plan and Zoning By-law Amendments are satisfactory to the City in form and content;
Servicing infrastructure has been addressed to the satisfaction of the City, including through a revised Stormwater Management and Functional Servicing Report containing a Water Supply Analysis and a Sanitary Capacity Analysis to address the City’s comments to the satisfaction of the City’s Director of Engineering;
The proposed development has adequately addressed the City’s comments on the Stormwater Management and Functional Servicing Brief submitted from January and April 2021, including water supply and sanitary capacity constraints;
The Applicant has prepared and submitted a Water Supply Analysis, to the satisfaction of the City, to determine what is required to provide water services for the development of the lands without causing adverse impacts on the water supply system. The Applicant has identified if there are any water supply constraints for the Subject Property and, if applicable, the Applicant has evaluated and recommended preferred water supply solutions;
The Applicant has fulfilled the recommendations and the necessary works to mitigate any water supply issues identified in the Water Supply Analysis. If the Water Supply Analysis recommended additional water infrastructure(s) necessary to provide municipal services to the development of the lands, then the Applicant has either completed that additional water infrastructure(s) or executed any agreement with the City regarding the construction of the required water infrastructure(s), at no cost to the City and has provided financial securities, submitted detailed engineering drawings, paid required fees in accordance with the latest Fee By-Law, provided insurance, etc. as required, to the satisfaction of the City’s Director of Engineering;
The Applicant has prepared and submitted a Sanitary Capacity Analysis, to the satisfaction of the City, to determine what is required to provide sanitary services for the development of the lands without causing adverse impacts on the sanitary sewer system. The Applicant has identified if there are any sanitary capacity constraints for the Subject Property. If so, the Applicant has evaluated and recommended sanitary capacity solutions;
The Applicant has fulfilled or implemented the recommendations and the necessary works to mitigate any sanitary capacity issues identified in the Sanitary Capacity Analysis. If the Sanitary Capacity Analysis recommended additional sanitary infrastructure(s) necessary to provide municipal services to the development of the lands, then the Applicant has either completed that additional sanitary infrastructure(s) or executed any agreement with the City regarding the construction of the required sanitary infrastructure(s), at no cost to the City, and has provided financial securities, submitted detailed engineering drawings, paid required fees in accordance with the latest Fee By-Law, provided insurance, etc. as required, to the satisfaction of the City’s Director of Engineering;
The Applicant has provided a revised/updated Transportation Impact Study, Functional Traffic Design Study, and an enhanced Transportation Demand Management (TDM) Plan to address the City’s comments dated August 28, 2023, including but not limited to active transportation, facility design along Courtyard Lane, and parking demand monitoring program for each development phase as part of the enhanced TDM measures, to the satisfaction of the City’s Director of Engineering or designate; and
The proposed parking standards, including the dimensions of parking spaces and the parking rates for non-residential uses, are appropriate to the satisfaction of the City.
22The Tribunal may, upon request of the Applicant with the consent of the City, issue its Final Order for the whole of the Subject Property or for any phase of development, subject to the Applicant satisfying the conditions in paragraph [21], as they may apply to any such phase.
23The 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.
24If 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 [21] above have been satisfied, and do not request the issuance of the Final Order by Wednesday, June 4, 2025, the Applicant and the City 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 draft Official Plan Amendment and Zoning By-law Amendment and issuance of the Final Order by the Tribunal.
“W. Daniel Best”
W. DANIEL BEST
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