Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-10-03
20 230483 S45 09 TLAB
908 SCW Properties Inc. (Re), 2023 ONTLAB 141
DECISION AND ORDER
Issuance Date:
October 3, 2023
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s):
908 SCW PROPERTIES INC
Applicant(s):
BOUSFIELDS INC.
Property Address:
908 ST CLAIR AVE W
COA File No.:
20 122874 STE 09 MV (A0296/20TEY)
TLAB Case File No.:
20 230483 S45 09 TLAB
Hearing Date(s):
June 2, 2021
Deadline Date for Closing Submissions/Undertakings:
June 8, 2021
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
908 SCW Properties Inc
A. Suriano
Applicant
Bousfields Inc
Owner
908 SCW Properties Inc
Party (TLAB)
A. Nayer
Participant
I. Kuperman
Expert Witness
M. Dror
INTRODUCTION AND CONTEXT
1On July 2, 2021, the Toronto Local Appeal Body (TLAB) issued a decision authorizing 25 variances, with two conditions, to facilitate the construction of a 12-storey mixed use building.
2The Hearing was convened as a settlement Hearing as the Parties had reached agreement. One Participant spoke in opposition to the proposal.
3On August 23, 2023, the TLAB received a communication from counsel for the Applicant/Appellant (Appellant) in the matter, requesting an opportunity to speak to the TLAB “with regards to compliance with one of the conditions set out in the order because of statutory changes.”
4The condition which the Parties have agreed may be removed is as follows:
Condition 2:
a. 908 SCW Properties Inc. shall make a cash contribution to the City of Toronto, in the amount of $450,000.00 to the satisfaction of the City Solicitor, to be allocated towards improvements at Charles Brereton Park or another local community project in the vicinity of the site to be determined by the Chief Planner and Executive Director, City Planning in consultation with the Ward Councillor. The financial contribution shall be indexed upwardly in accordance with the Statistics Canada Non-Residential Construction Price Index for Toronto, calculated from the date of final approval of the minor variance application to the date of payment and
b. 908 SCW Properties Inc. shall provide a letter from its solicitor confirming that it has provided to the City of Toronto, the cash contribution referred to above in Condition 2a.
5The Appellant proposed the now contested condition at the settlement Hearing, which reflected a condition the local councillor had requested of the Committee of Adjustment (COA).
6The ostensible difficulty that has arisen with the Decision and Order is that changes to the Planning Act have altered the means and mechanisms by which community benefits may be obtained by municipalities.
7Under the provision of TLAB Rule 29.2, I agreed to hear the request to vary the Decision of July 2, 2021 to remove the condition of approval.
Condition Imposed by the TLAB Must be Satisfied
29.2 Subject to subsection 45(9) and 53(41) of the Planning Act a condition imposed in a TLAB decision shall be satisfied by the date and in the manner ordered by the TLAB. If a condition is not satisfied, and subject to the terms or order or any statutory requirements, subject to any statutory requirements, the TLAB may on its own initiative, or by Motion, require the Parties to re-attend before it.
THE LEGISLATIVE AND POLICY FRAMEWORK
8Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.
9Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
10The Motion materials of the Appellant were accompanied by a “with prejudice” letter from the City’s lawyer in support of the request, and contained the affidavit of Mike Dror, a professional planner. Subsequent to the Hearing, I received confirmatory information from legal counsel for the Appellant and the City.
ISSUES AND ANALYSIS
11I was the presiding Member at the settlement Hearing on the basis of which the variances were approved. At the time, I requested an explanation of the legal authority by which the TLAB could impose a condition requiring a cash contribution to the City, as was being requested.
12The City was not in attendance at the initial Hearing, but at the request of the Appellant’s counsel, Mr. Davidson, representing the City, provided a written communication after the Hearing. The City was of the view that the proposed condition fell within the authority conferred upon the TLAB under Section 45(9), met the intent of the City’s Official Plan policies, and was appropriate in that instance.
13On the basis of the City’s assurance, and as the Parties all agreed to the condition as part of the settlement, the condition was attached to the approval of the variances. Despite my hesitancy as to the TLAB’s jurisdiction to impose such a cash contribution as a condition of variance approval, I acceded to the request in deference to a settlement agreement and with the view that securing the cash contribution to City purposes supported the public interest more than not doing so.
14In August 2022, City Council adopted a Community Benefit Charge (CBC) By-law. This By-law levies a charge of 4% of the value of the land at the time of first building permit on all qualifying developments. It is the Appellant’s contention that the CBC By-law now serves a similar purpose as the condition to contribute a cash payment did at the time of the Decision.
15The condition requires that the Owner pay $450,000 prior to issuance of the first above-grade building permit. The Owner is also now required to pay a charge pursuant to the CBC By-law.
16The Appellant has made a payment to the City of Toronto in the amount of $891,300 pursuant to the CBC By-law.
17I note that the condition now in question was voluntarily proposed by the Appellant at the time of the settlement Hearing. This payment was to be a cash contribution to public purposes in addition to what was payable under the fee regime that was in force at the time that the variances were approved. I also note that the Ward Councillor at the time, who requested the cash contribution, is no longer in office.
18TLAB Decisions are final and binding and there is generally little scope for revision of conditions attached to a Decision. In this case, the Appellant had motivated strongly that the condition be secured via the TLAB Decision. Rule 29.2 of the TLAB’s Rules offers very limited leeway to address the fulfillment of conditions imposed in a TLAB decision
19I find that the request in this case falls within the intent of the Rule. I accept the advice of the Appellant and the City that the CBC By-law codifies and quantifies the extent of cash contributions to the City obtained previously under (different) provisions of the Planning Act.
20In my view, the cash contribution that was imposed as a condition, (to be allocated towards improvements at Charles Brereton Park or another local community project in the vicinity of the site) can be achieved via a CBC payment. I find that the manner in which the condition is to be satisfied can be varied in this case without injury to the public interest.
21Mr. Nayer, who was the only other Party to the matter, was in attendance at the Motion Hearing. He advised that he had no objection to removal of this condition of approval as long as the payment was equal to or greater than what was originally agreed upon and that no other conditions were changed.
22The stated purpose of the condition in question was to improve Charles Brereton Park as the first priority. As park improvements can be funded through Development Charges[1] as well as through Community Benefits Charges, I sought assurances that the total quantum of fees paid by this development towards improvements to parks would be at least as much as was payable under the fee scheme when the condition was imposed.
23I thank Mr. Davidson and Mr. Suriano for providing a breakdown after the Motion Hearing of the total value of the Parks and Recreation component of the Development Charge and the applicable Community Benefit Charge. I am satisfied that the total amount payable by the development towards parks improvements via a combination of Development Charges and Community Benefits Charges exceeds the amount that would have been secured through Development Charges and the imposition of the cash contribution as intended in the condition of approval.
CONCLUSION
24I am satisfied that the manner in which the cash contribution for a local park improvement (or another local community project) that was secured through a condition of approval can be achieved via the payment of a Community Benefits Charge.
25As I have been provided with documentation that the full Community Benefits payment has already been made to the City, there is no further need to secure the contribution via fulfillment of a condition of approval, and that therefore the condition may be removed.
DECISION AND ORDER
26That condition number 2 of TLAB Decision dated July 2, 2021, (parts a. and b.) (File Number 20 230483 S45 09 TLAB) be deemed to be fulfilled through payment of a Community Benefits Charge payment equal to or greater than $450,000.
A. Bassios
Panel Member
1Development Charges Act, 1997.
2 (1) The Council of a municipality may by by-law impose development charges against land to pay for increased capital costs required because of increased needs for services arising from development of the area to which the by-law applies.