Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-07-29
23 230695 S45 11 TLAB
300 BLOOR WEST JVCNB INC (Re), 2024 ONTLAB 241
DECISION AND ORDER
Issuance Date:
July 29, 2024
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):
300 BLOOR WEST JVCNB INC
Applicant(s):
AIRD & BERLIS LLP
Property Address:
300 BLOOR ST & 478 HURON ST
COA File No.:
23 167812 STE 11 MV (A0592/23TEY)
TLAB Case File No.:
23 230695 S45 11 TLAB
Hearing Date(s):
March 14, 2024
March 26, 2024
May 14, 2024
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By:
TLAB Panel Member T. KEZWER
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
Aird & Berlis LLP
Previous Owner
The Board of Turstees of 478
Owner/Appellant
300 BLOOR WEST JVCNB INC
S. Tomasella
M. Helfand
Party (TLAB)
City of Toronto
A. Sandhu
Party (TLAB)
R. Landau
Party (TLAB)
S. Dexter
Party (TLAB)
Annex Residents’ Corporation (ARC)
Expert Witness
BA Consulting Group LTD
Expert Witness
G. Davidson
Expert Witness
M. Dror
INTRODUCTION AND CONTEXT
1This was a three-day hearing before the Toronto Local Appeal Body (the “Tribunal”).
2The Appellant, 300 BLOOR STREET WEST JVCNB INC., appeals a denial by the Toronto and East York panel of the Committee of Adjustment for 4 variances for a proposed five storey addition to a development on the property located at 300 Bloor St – 478 Huron Street (the “Subject Property”). The appeal is being allowed.
3The Subject Property is located on the north-west corner of Bloor Street West and Huron Street. The Subject Property is located east of Spadina Avenue and is designated as Mixed Use in the Official Plan and is zoned CR 3.0 (c2.0; r2.5 SS2 (x289)) under the City of Toronto Zoning By-law 569-2013. Through a rezoning application process, City Council amended former Zoning By-law 438-86 and Zoning By-law 569-2013 through By-law 72-2021 and 73-2021, respectively. Given that By-law 569-2013 is fully in force as it relates to the applicable CR zone, only By-law 73-2021 is now relevant. Throughout this decision, I refer to “By-law 73-2021” and “Site-Specific Zoning By-law” interchangeably.
4The Subject Property is also located within the Downtown Toronto Urban Growth Centre, and is designated under the Downtown Secondary Plan within Mixed Use Areas 3. The Subject Property is also within two draft-delineated Protected Major Transit Station Areas (“PMTSAs”).
5The Subject Property is generally rectangular in shape and has a total size of approximately 3,635 square metres, with frontages of approximately 44.3 metres along Bloor Street West and approximately 86 metres along Huron Street.
6The Subject Property is currently under construction for a 29-storey condo building, while conserving two structures on the property, the Bloor Street United Church at the south end of the property, and Pidgeon House at the north end of the property. The property will serve a mix of uses, including residential, office space, houses of worship, etc., and these uses are not proposed to be changed under the minor variance application.
7As noted above, the Appellant is proposing to increase the height of the tower by five additional storeys. There are no proposed changes to the location of the tower, or to the podium of the tower.
8Prior to the hearing I visited the Subject Property and familiarized myself with the neighbourhood in which it is situated. In addition, I reviewed the pre-filed materials.
9I will now briefly provide a synopsis of the hearing events according to each day:
a. Day 1: Mr. Helfand provided an opening statement on behalf of the Appellant asserting that the Site-Specific Zoning By-law approval was for 29 stories, and that the policy protecting the silhouette of Knox College was changed by LPAT prior to City Council’s approval of By-law 73-2021. Mr. Helfand noted the additional cash contribution being recommended if the appeal were to be allowed which will be earmarked for community benefits. In addition, Mr. Helfand asserted that the minor variance application process is part of the planning process, and it is a public process. Mr. Helfand argued that there is a distinction between attempting to challenge the planning process versus the substance of the minor variance application itself.
Ms. Sandhu provided an opening statement on behalf of the City of Toronto, noting that City Council instructed the City Solicitor to appear in favour of the application, and that the conditions of approval as outlined in the Community Planning staff report dated November 1, 2023, include a cash contribution.
Mr. Wiercinski on behalf of the Annex Residents’ Corporation, stated that while he does not oppose increased density within the Bloor Street West corridor, residential development should follow sound comprehensive land use planning principles, considering that a new building will impact the area for many years. Mr. Wiercinski argued that the developer is double dipping by going to the Committee of Adjustment to exclude public participation in the change of the Site-Specific Zoning By-law. This is especially problematic in light of the province of Ontario’s elimination of third party appeals from the Committee of Adjustment. Mr. Wiercinski argued that the variances are being proposed due to market conditions and not for any planning purpose. There were 7 working group meetings and a community consultation process to achieve a compromise that was approved. The proper route should have been to apply for a rezoning application and not for a minor variance application. Mr. Wiercinski’s position is that the developer’s actions are a breach of trust and goodwill that was generated in the earlier consultation process.
Ms. Dexter of the Harbord Village Residents’ Association stated that neighbours and the neighbourhood association went through lengthy meetings and negotiations to arrive at the original plan for the residential tower at 29 storeys. In addition, Ms. Dexter was concerned about the notice that was provided prior to the current minor variance process beginning with the Committee of Adjustment. Ms. Dexter was also concerned about the impact of the proposed additional storeys on the private garden at the southern end of 95 Prince Arthur Avenue.
Ms. Landau on her own behalf stated that she attended 7 working group meetings in the design of the original 29-storey building, and that she did not receive any contact from the builder prior to the Committee of Adjustment hearing. The proposed tower is approximately 23 meters north of Bloor, as the Bloor Street United Church is on the corner of Bloor and Huron. The proposed tower stops just south of the south garden at 95 Prince Arthur Avenue. Ms. Landau asserted that a tall tower on a narrow residential street is problematic.
After the opening statements, Mr. Dror was qualified as an expert witness in the area of land use planning and presented his evidence in chief. Mr. Wiercinski cross-examined Mr. Dror, and the first day of the hearing was complete.
b. Day 2: Ms. Dexter cross examined Mr. Dror, and then Ms. Landau cross examined Mr. Dror. After the cross examinations were complete, Mr. Helfand declined to re-examine Mr. Dror.
Ms. Sanchez was then qualified as an expert witness to provide opinion evidence in the area of transportation engineering, and presented her evidence in chief. Ms. Sanchez was cross-examined by each of the three opposing parties, and then Mr. Helfand re-examined Ms. Sanchez.
Dr. Davidson was then qualified as an expert witness in the area of land use planning and presented his evidence in chief. Dr. Davidson’s evidence in chief was completed at the end of the second day of the hearing.
c. Day 3: The day began with Mr. Helfand cross-examining Dr. Davidson. Mr. Wiercinski then re-examined Dr. Davidson, and Ms. Landau asked a few questions of her own. Ms. Dexter declined the opportunity to provide evidence, and at that point the evidence for the hearing was complete. Ms. Landau had previously declined the opportunity to provide evidence. Each of the five parties then presented their closing arguments, followed by a brief reply by Mr. Helfand. I will briefly summarize the closing statements below:
Mr. Helfand on behalf of the Appellant argued that the Site-Specific Zoning By-law was approved by City council in July 2019, and five years later, the matter is before the Tribunal for four minor variances. Mr. Helfand asserted that the statutory process for a minor variance application was followed, and that the variances need to be evaluated on the four tests outlined in section 45(1) of the Planning Act. If the tests are met, the appeal should be allowed. In addition, Mr. Helfand argued that the opposing three parties did not present a land-use planning case, but rather a case based on principles and their view of the minor variance process. Mr. Helfand argued that Dr. Davidson did not engage with the specific variances when he provided his expert opinion evidence.
Mr. Helfand asserted that the community’s perspective and consultation is important, however, the four-part minor variance test is an objective test that must be followed. Mr. Helfand argued that the minor variance test is based on land uses and not based on how individuals or the community feels about the process.
Mr. Helfand argued that Mr Dror provided a detailed analysis of the four tests for a minor variance. Mr. Helfand noted that the Official Plan layers for this site are numerous. Official Plan Amendment 368 (“OPA 368”) established a height limit to create the Knox College View Corridor. The policy changed just before Zoning By-law 73-2021 was approved.
Mr. Helfand asserted that OPA 368 allows for an additional 5 storeys, and that this opinion which was provided by Mr. Dror was not challenged by Dr. Davidson. Mr. Helfand also argued that the proposal calls for high quality amenity space which does not violate the Official Plan, and that Dr. Davidson’s evidence on the amenities was less detailed than Mr. Dror’s evidence. Mr. Helfand asserted that Dr. Davidson’s only concern from an Official Plan perspective was that the proposal does not promote affordable ownership and affordable rental units. Mr. Helfand asserted that Dr. Davidson also recognized that the Official Plan supports ownership and market-based housing.
Mr. Helfand argued that the Subject Property is located downtown in an amenity-rich area, and that this needs to be taken into account when considering the amenity variance. Mr. Helfand argued that Dr. Davidson did not engage with the general intent and purpose test for the zoning by-law. However, this is the test that is used to determine whether a planning standard should be varied.
In terms of the test for a minor variance, Mr. Helfand argued that the evidence showed there is minimal shadowing impact on mixed use areas, and none on the neighbouring properties. In addition, Mr. Helfand posited that Ms. Sanchez’s evidence should be accepted, particularly that the additional units can be accommodated through the transportation network.
In terms of the desirability phase of the minor variance test, Mr. Helfand asserted that the location is in a transit-rich area, and there are cash contributions which will be used for a community benefit. Mr. Helfand asserted that Dr. Davidson’s opinion was that the Site-specific Zoning By-law states what is desirable, and that this opinion should not be accepted by the tribunal. In addition, Mr. Helfand posited that the parties had ample time to present their case, and they explained why the community does not like the minor variance application process, however, they have not engaged with the section 45(1) test.
Ms. Sandu on behalf of the City of Toronto asserted that the City’s position is that the appeal should be allowed, and that the Tribunal should favour the evidence provided by the applicant’s expert land use planner. In addition, Ms. Sandu argued that the conditions of approval being requested are appropriate, and that the expert testimony of Mr. Dror in this regard should be accepted.
Mr. Wiercinski on behalf of the Annex Residents’ Corporation provided an outline of the history of the submissions for the property. This included:
December 27, 2017 – 38 storey proposal – first submission
June 8, 2018 – 27 storey proposal – second submission
March 11, 2019 – 29 storey proposal – third submission
May 15, 2019 – amendment to OPA 368
July 2019 – passing of Site-specific Zoning By-law 73-2021
March 4, 2020 – First Site Plan Application with 248 units
January 2022 – Most recent Site Plan Application with 284 units
June 23, 2023 – Minor Variance Application to Committee of Adjustment with 349 units
Mr. Wiercinski asserted that the appellant should have proceeded by way of amending the zoning by-law, and not by way of a minor variance application. Mr. Wiercinski argued that the four tests for a minor variance have not been met based on the evidence before the tribunal. In addition, a failure to consult is not good planning as required by the four tests.
Mr. Wiercinski posited that the Official Plan makes it clear that the emphasis is on addressing current needs, which is affordability. Mr. Wiercinski noted that with regard to the Protected Major Transit Station Areas (“PMTSAs”), neither have been approved yet.
Mr. Wiercinski argued that the applicant submitted the original zoning by-law application fully aware that OPA 368 was going to be modified. Mr. Wiercinski believes that the applicant did not push the height issue because this allowed for the application to be approved more quickly.
Mr. Wiercinski asserted that the appellant seeks to alter the consensus which was achieved following extensive community consultation, and that this is a form of double dipping, where a Committee of Adjustment application is brought to short circuit the rezoning application process upon which the original approval was granted. Mr. Wiercinski argued that Mr. Dror’s expert witness statement at paragraph 25 discusses the desirability of the proposed variances from a planning and public point of view. Yet, Mr. Wiercinski asserts that the application was motivated by the applicant’s economic interests and not by any planning interest or economic policy. The proposal adds additional potential revenue of many millions of dollars. From Mr. Wiercinski’s perspective, this is not a minor variance issue. Mr. Wiercinski argued that Committee of Adjustment hearings are quick and they exclude the public except for strict compliance with provisions of the Planning Act.
Mr. Wiercinski reviewed the percentage increases in the minor variances and argued that these proposed increases are not minor.
In addition, Mr. Wiercinski argued that Mr. Dror’s evidence did not address the cumulative impact of new towers along Bloor Street in addition to the proposal before the Tribunal. For instance, there is a combined storm and sanitary sewer for Bloor Street. What will the impact of all these towers be on this piece of infrastructure?
Mr. Wiercinski argued that many of the amenities which Mr. Dror cited in his evidence are city-wide amenities, and not local community facilities. A reduction in the amenity space for the proposed development is not minor because there are a large number of units being added to Bloor Street. Mr. Wiercinski asserted that existing amenity space cannot be used to justify a decrease in amenity space, and that the cumulative impact of new developments must be considered. Mr. Wiercinski asserted that there was no public engagement for this minor variance application.
Ms. Dexter spoke on behalf of the Harbord Village Residents’ Association (the “HVRA”), which views its catchment area to be Bloor Street to College Street, between Bathurst Street and Spadina Street. Ms. Dexter asserted that the minor variance process was a process which denied the community a voice in the revision of a major project. The HVRA has a 20-year record of participation in local developments, including major street studies, official plan amendments, block plans, studies, individual developments, etc. They participate in major developments such as the Mirvish Village development to plans for a basement apartment by a local owner. The HVRA was a party at the OPA 368 hearing.
Ms. Dexter argued that the minor variance process used by the applicant is not trivial, it excludes broad public participation, it weakens the community voice, and it curtails the community’s right to be heard and to participate in changes to their neighbourhood.
Ms. Dexter argued that the Committee of Adjustment process has weaknesses which include that it has a limited staff, the notification area around a site is limited, and there is an opportunity for only 5 minute public deputations at the hearing itself.
In contrast, Ms. Dexter argued that the rezoning process is more transparent, it involves the participation of professional planning staff and technicians, and it mandates public engagement.
Ms. Dexter asserted that the applicant did not reach out to the HVRA, and the HVRA did not take part in the COA hearing because it was not aware of the application. In Ms. Dexter’s view, the successful collaboration and consensus achieved through by-law 73-2021 was turned into a private process for a quick deal which was only sidelined by the COA denial of the application.
Ms. Dexter asserted that the City of Toronto does not have a good understanding of what the recent growth in the population is and the current demand levels for services in the immediate area.
Ms. Dexter argued that the proposal before the Tribunal has metrics which are beyond the number of people impacted on a typical Committee of Adjustment file. In Ms. Dexter’s view, this is a matter which is not in Committee of Adjustment territory, and the community was prevented from providing their input on a major change.
Ms. Landau is a resident in the immediate neighbourhood, and she asserted that the Annex is known for 2-3 storey red-brick Victorian and Edwardian buildings from the late 1800s. The Madison Avenue Heritage Conservation District is nearby.
Ms. Landau argued that the original height in By-Law 73-2021 was as a result of many concerns, with the Knox College View Corridor being only one of those concerns. Ms. Landua asserted that the June 11, 2019, City of Toronto Staff report (Exhibit 16) discusses the heigh and massing of the podium and how it overwhelmed the abutting pedestrian sidewalk. The Site-specific Zoning By-law’s purpose was to balance various considerations, including height impacting streetscape, setbacks, and reducing height to protect adjacent heritage elements.
Ms. Landau is also concerned about the impact on shadowing on the garden at 95 Prince Arthur Avenue. Ms. Landau noted that while the proposed PMTSAs give minimum density requirements, it is not clear when these requirements are reached that it is preferable to add more density or to add density around other areas that have not reached their density target.
Ms. Landau argued that the general purpose of the Official Plan is for holistic city planning and zoning on a global basis, and not for sites to be considered independently on one-off bases. Ms. Landau noted that the Committee of Adjustment applications are heard and decided on the same day, which does not provide for constructive community participation.
Mr. Helfand made a brief reply to a few of the points made by Ms. Landau.
10Seventeen exhibits were entered into the record for this hearing:
Exhibit 1: Expert Witness Statement of Mike Dror received by the Tribunal on February 12, 2024.
Exhibit 2: Responding Expert Witness Statement of Mike Dror received by the Tribunal on February 27, 2024.
Exhibit 3: Reply Expert Witness Statement of Mike Dror received by the Tribunal on March 8, 2024.
Exhibit 4: Expert Witness Statement of Claudia M. Sánchez received by the Tribunal on February 12, 2024.
Exhibit 5: Document Disclosure of Claudia M. Sánchez received by the Tribunal on February 12, 2024.
Exhibit 6: Extracts from December 2017 Bousfields Inc. study: 300 Bloor Street West & 478 Huron Street Planning & Urban Design Rationale
Exhibit 7: City Development Guide: Official Plan and Zoning By-law Amendment
Exhibit 8: Getting to know the City of Toronto: Committee of Adjustment brochure
Exhibit 9: Streets of Toronto article by Ron Johnson dated July 28, 2023
Exhibit 10: CIELO Marketing Screenshot
Exhibit 11: Tweet by Jennifer Keesmat
Exhibit 12: 300 Bloor Street West and 478 Huron Street - Zoning Amendment - Preliminary Report from Community Planning dated June 22, 2018
Exhibit 13: Expert Witness Statement of Gary Davidson received by the Tribunal on February 12, 2024 filed as part 1 of a 4 part filing by S. Dexter with the document being labelled as Party Document Disclosure and the expert witness statement beginning at page 322
Exhibit 14: Responding Expert Witness Statement of Gary Davidson received by the Tribunal on February 27, 2024.
Exhibit 15: Committee of Adjustment Agenda Toronto and East York Panel November 8, 2023
Exhibit 16: 300 Bloor Street West and 478 Huron Street – Zoning By-law Amendment – Final Report from Community Planning dated June 11, 2019
Exhibit 17: City of Toronto’s Document Disclosure Book received by the Tribunal on February 12, 2024
11I will now outline the legal framework guiding this matter.
THE LEGISLATIVE AND POLICY FRAMEWORK
12Provincial Interest - S. 2
A decision of the Toronto Local Appeal Body (the “Tribunal”) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.
13Provincial Policy – S. 3
A decision of the Tribunal must be consistent with the 2020 Provincial Policy Statement (the “Provincial Policy Statement”) and conform to the Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”) for the subject area.
14Variance – S. 45(1)
In considering a proposal for variances from the applicable Zoning By-law, the Tribunal must be satisfied that the proposal meets 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.
15The requested variances are as follows:
- Chapter 900.11.10, Exception CR 289, Regulation (B), By-law 569-2013, and Section 4.(B), By-law 73-2021
The maximum permitted total gross floor area is 27,000 m2.
The altered development will have a total gross floor area of 30,368 m2.
- Chapter 900.11.10, Exception CR 289, Regulation (B)(i), By-law 569-2013, and Section 4.(B)(i), By-law 73-2021
The maximum permitted residential gross floor area is 20,475 m2.
The altered development will have a residential gross floor area of 23,859 m2.
- Chapter 900.11.10, Exception CR 289, Regulation (F), By-law 569-2013, and Section 4.(C), By-law 73-2021
The maximum permitted building heights, as shown on Diagram 3 of By-law 73- 2021; are 104 m, 100.5 m, and 97 m.
In this case the altered development will have maximum heights of 120.5 m, 117 m, and 113.5 m; as shown on Revised Diagram 3.
- Chapter 900.11.10, Exception CR 289, Regulations (G) and (G)(i), By-law 569-2013, and Section 4.(G) and 4.(G)(i), By-law 73-2021
A minimum of 3.88 m2 of amenity space for each dwelling unit must be provided of which a minimum of 1.88 m2 for each dwelling unit must be indoor amenity space.
In this case, the altered development will have a minimum of 3.2 m2 of amenity space for each dwelling unit, of which a minimum of 1.64 m2 for each dwelling unit will be indoor amenity space.
SUMMARY OF EVIDENCE
Mr. Dror
16Mr. Dror is a land use planner who has been practicing since 2013, and Partner at Bousfields Inc., where he has worked since 2015. Mr. Dror is a Full Member of the Ontario Professional Planners Institute and the Canadian Institute of Planners. In addition, Mr. Dror is an Associate Member of the Urban Land Institute. Mr. Dror was qualified as an expert witness to provide opinion evidence in the area of land use planning.
17Mr. Dror opined that the proposed variances individually and cumulatively meet the s. 45(1) test outlined in the Planning Act for a minor variance. I will now review what I consider to be some of the highlights of Mr. Dror’s evidence.
18Mr. Dror noted that the proposal is for an additional 5-storeys to be added to the 29-storey approved skyscraper. There is no change in the location of the tower or of the site plan. Mr. Dror’s opinion is that the proposal does not project beyond the height silhouette for Knox College, and therefore conforms to the Official Plan view policy for Knox College. Mr. Dror also opined that the proposed tall building meets the amenity space requirements, and notes that the gross amount of amenity space is not being reduced. The minor variance is required due to the ratios decreasing due to the shrink-wrap tower defined in the Site-Specific Zoning By-law.
19Mr. Dror’s opinion is that there are two changes which make the proposal appropriate: (1) the Knox College View Corridor has changed, and (2) the context has changed with new approvals and proposals within the immediate context. On cross-examination by Mr. Wiercinski regarding the heights of the new approvals at Bloor St. and Spadina Ave., Mr. Dror opined that new projects are for the maximum height allowed under the Knox College View Corridor.
20Mr. Dror also reviewed the KPMB Architects Shadow Study prepared in February 2024, and opined that there are no impacts on the neighbourhoods at the equinoxes. There is a limited impact on Paul Martel Park. There is also minimal impact on the private garden at the south end of 95 Prince Arthur Avenue. Mr. Dror opined that mixed use areas are not afforded the same shadow protection as in neighbourhoods.
21Mr. Dror opined on cross-examination that the current proposal responds to a missed opportunity to add additional housing on a site where the additional housing could be added without additional impacts.
22Mr. Dror’s evidence will be reviewed in greater detail below when analyzing the various parts of the Planning Act’s section 45(1) test.
Ms. Sanchez
23Ms. Sanchez is a registered Professional Engineer with Professional Engineers Ontario, and a member of the Institute of Transportation Engineers. Ms. Sanchez is an Associate of BA Consulting Group Ltd., a firm specializing in transportation planning and transportation impacts of land development. Ms. Sanchez has over 12 year of experience in the preparation of various transportation planning studies, and the functional design of site vehicular systems, vehicular parking, bicycle parking, and loading facilities. Ms. Sanchez has specific experience with mixed-use and residential development proposals within the City of Toronto, including high density residential, office, retail and commercial uses comparable to the proposal before the Tribunal. Ms. Sanchez was qualified as an expert to provide opinion evidence in the area of transportation engineering.
24Ms. Sanchez noted that no variance is being sought for the vehicular parking, bicycle parking, or loading requirements as part of the minor variance application.
25Ms. Sanchez opined that the site is a good candidate for intensification from a transportation perspective due to its excellent existing transportation context, which includes being 200m to St. George Subway Station and 200m to Spadina Station, both of which are transfer stations for the Toronto Transit Commission’s Line 1 (Yonge-University-Spadina) and Line 2 (Bloor-Danforth). In addition, the Subject Property is close to significant employment, commercial, retail and recreational centres along Bloor Street West which can be reached on foot and by transit.
26Ms. Sanchez opined that the proposed parking supply remains appropriate, and that there is in significant impact from the proposal due to incremental vehicular activity on the local traffic operations, local transit facilities, and local pedestrian facilities
27Ms. Sanchez noted that the proposed additional 65 units are forecast to generate 10 additional two-way vehicular trips in the morning and afternoon peak hours. Ms. Sanchez opined that the conclusions of the BA Consulting Group Ltd. transportation study entitled “300 Bloor Street West, Proposed Multi-Use Development, Transportation Considerations” and dated December 2017, (the “BA Group December 2017 Report”) remain valid, in that the site generated traffic volumes can easily be accommodated on the area street network.
28In addition, Ms. Sanchez opined that the additional 65 units are forecast to generate 34 and 26 additional two-way person trips in the morning and afternoon peak hours, compared to the BA Group December 2017 Report. The proposal is also forecast to generate 14 and 9 additional two-way transit trips in the morning and afternoon peak hours, compared to the BA Group December 2017 ZBA Report. Ms. Sanchez provided her opinion that the proposal does not result in a significant increase in the number of residents and/or employees at the site that will be using transit as their primary mode of transportation in the peak hours.
29Ms. Sanchez also noted that the proposal is forecasted to generate 21 and 14 additional two-way person trips walking to and from the Subject Property in the morning and afternoon peak hours compared to the BA Group December 2017 Report. Ms. Sanchez opined that this does not represent a significant increase in the number of residents and/or employees at the site that will be walking on area sidewalks and at the area pedestrian crossings.
30In addition, the proposal is forecasted to generate 3 and 2 additional two-way cycling trips in the morning and afternoon peak hours, compared to the BA Group December 2017 Report. Ms. Sanchez is of the opinion that this does not represent a significant increase in the number of residents and/or employees at the Subject Property that will be cycling as their primary mode of transportation in the peak hours.
31Ms. Sanchez opined that the proposed parking supply and parking facilities are appropriate and will meet the parking needs of the development. Ms. Sanchez noted that the current proposal includes 133 resident parking spaces, which is an effective resident parking rate of 0.38 per dwelling unit. This is greater than the minimum required resident parking rate in By-law 73-2021, which is 0.31 spaces per dwelling unit.
32Ms. Sanchez opined that the increase of 10 additional two-way vehicle trips in both weekday morning and afternoon peak hours is a small increase compared to the volumes assessed in detail as part of the BA Group December 2017 Report, which was approved by City transportation staff. Ms. Sanchez opined that the conclusions of the BA Group December 2017 report remain valid, and that the site-generated traffic volumes can be acceptably accommodated on the area street network.
33Ms. Sanchez provided her opinion that the proposal will generate an additional 14 and 9 two-way transit trips in the morning and afternoon peak hours compared to the assessed trips in the BA Group December 2017 ZBA Report. Ms. Sanchez noted that these additional transit trips will be distributed between the various transit options available near the Subject Property. Ms. Sanchez opined that the outcome is a small increase in the number of riders on the local transit facilities which can be acceptably accommodated in the context of the broader demands on the transit system.
34Ms. Sanchez’s overall opinion is that the proposed development with the additional 65 units in the minor variance request are appropriate and can be supported by the area transportation networks. Ms. Sanchez also opined that the incremental activity levels dealing with pedestrian, cycling, parking and traffic are small. Ms. Sanchez also noted that the transportation impacts of the development were assessed and reviewed in detail as part of the rezoning process and approved by City of Toronto staff. Ms. Sanchez opined that the conclusions previously reached remain valid.
Dr. Davidson
35Dr. Davidson is a professional planner and a full member of the Canadian Institute of Planners where he holds the designation of Fellow of the Canadian Institute of Planners. In addition, Dr. Davidson is a member of the Ontario Professional Planners Institute, where he holds the designation of Registered Professional Planner. Dr. Davidson is also a member of the Association of Land Economists and holds the designation of Professional Land Economist. Dr. Davidson’s experience dates from the 1970s, and in 2002 he established The Davidson Group Inc., a planning consulting firm. Dr. Davidson was qualified as an expert witness to provide opinion evidence in the area of land use planning.
36Dr. Davidson noted that the original December 2017 rezoning application proposed a 38-storey mixed use building. The application was revised and approved for a 29-storey building in By-law 73-2021.
37Dr. Davidson opined that between March 2020 and November 2022, a Site Plan Application, followed by a series of resubmissions, was filed in conjunction with By-law 73-2021. Dr. Davidson’s opinion is that some of these altered the intention of the agreements that led to By-law 73-2021, specifically the number and configuration of the residential units and the amenity space per unit.
38Dr. Davidson’s opinion is that the process that resulted in By-law 73-2021 embraced the ongoing planning evolution of increased density along Bloor Street, while at the same time expressing concern for the well-being of future residents through the provision of appropriate amenity space. The gestation of By-law 73-2021 was a collaborative effort between the developer and the community. A consensus was reached, an implementing by-law was approved by Council and no appeals were lodged. Dr. Davidson views it as an excellent example of how the rezoning process can and should work.
39Dr. Davidson noted that the minor variance application concentrates on increasing height, dwelling units and gross floor area, while decreasing amenity space. Dr. Davidson opined that there was no broad public involvement in this proposal, and the proposed changes were not considered minor by the Committee of Adjustment.
40Dr. Davidson’s opinion is that sound planning is based on two pivotal concepts - substance and process. This starts with the Planning Act and continues through various Provincial policy documents and implementation instruments at the municipal level and extends to formal decision-making and appeal bodies. Dr. Davidson categorized housing intensification to be the substance of the matter, and public involvement to be the process.
41Dr. Davidson’s opinion is that the process used to develop By-law 73-2021 relied on these two core principles – substance through housing intensification and process through public involvement - to provide a desirable planning outcome. However, Dr. Davidson opined that the current minor variance application process demonstrates the problems that occur when these principles are separated. Dr. Davidson’s opinion is that the minor variance application was neither timely or efficient and has resulted in an appeal.
42Dr. Davidson reviewed the various branches of the section 45(1) test for a minor variance application.
43The first branch of the minor variance test deals with the Official Plan. Dr. Davidson provided his opinion that there is enough market-based housing in the condo market. Section 3.2.1 of the Official Plan was quoted by Dr. Davidson as one of the bases for his opinion. Mr. Helfand pointed out on cross-examination that this particular quote was present in the November 2002 version of the Official Plan. Dr. Davidson’s opined that the text is accurate today and was accurate in 2002.
44Dr. Davidson provided his further opinion on cross-examination that it would be meeting an important land use planning objective if units in the development were designated for affordable rental housing, although he was not prepared to provide a percentage of affordable rental units in the development which he would find to be satisfactory.
45Dr. Davidson’s opinion was that there is a concern in Toronto about housing in the affordable and affordable rental housing market, and that the minor variance application does not address this concern.
46The second branch of the test for a minor variance deals with whether the variance maintains the general intent and purpose of the Zoning By-law. Dr. Davidson’s opinion is that Zoning By-law 73,2021 is a site-specific bylaw which amended the general by-law, being By-law 569-2013. The Site-Specific Zoning By-law outlines detailed provisions and standards (i.e. a specific intent) for the development of the site. Therefore, Dr. Davidson’s opinion is that the concept of general intent, is no longer relevant. In other words, the concept of general intent applies to a general zoning by-law covering a municipality and not to a site-specific zoning by-law.
47Dr. Davidson’s opinion is that the appropriate approach would be to seek a rezoning through City Council through section 34 of the Planning Act. This is because the applicable zoning by-law is a site-specific amendment to the parent zoning by-law.
48Dr. Davidson opined that the minor variance request results in an increase in height, gross floor area, number of units, number of 1-bedroom units, and a decrease in per unit amenity space. Dr. Davidson noted that By-law 73-2021 already provided a considerable change in height and density from By-law 569-2013. Dr. Davidson therefore opined that the proposed variances are not minor in nature.
49Dr. Davidson provided his opinion that some additional units appear to have been added to the lower floors of the proposal because the unit count has increased beyond the number of units which were in the By-law 73-2021.
50On cross-examination by Mr. Helfand, Dr. Davidson opined that it was difficult to find what the general purpose would be for a site-specific zoning by-law. This is because a site-specific zoning by-law sets specific provisions for a site, whereas Zoning By-law 569-2013 applies to the entire City. Dr. Davidson’s opinion is that Zoning By-law 73-2021, outlines the specific intent and purpose for the site.
51Dr. Davidson provided his opinion that only when there is a very minor matter or a mistake in the by-law should a site-specific zoning by-law be varied by a minor variance. If the height is set by the site-specific zoning by-law, it should not be varied by way of a minor variance application. Rather, it should be varied through section 34 of the Planning Act. Dr. Davidson’s opinion is that there is no scenario where the height variance meets the four tests. For example, the height increase could be for affordable rental units only with full community agreement, and in Dr. Davidson’s opinion, it would still not meet the four tests.
52Dr. Davidson also opined that for the third branch of a minor variance test, it is best applied when dealing with a municipal comprehensive zoning by-law. In the case at bar, Dr. Davidson’s opinion is that the appropriate development of the land is spelled out in detail in By-law 73-2021. Dr. Davidson noted that it was only following extensive public consultation that City Council decided what was the appropriate development of the Subject Property and enshrined it in By-law 73-2021.
53As for the fourth branch of the minor variance test, Dr. Davidson’s opinion is that the proposed changes are not minor, and that the relief available to the property owner is section 34 of the Planning Act, which is for a rezoning, and would require public meetings, perhaps changes to the proposal, and then City council would make a decision.
54Dr. Davidson opined that the process of obtaining a site-specific zoning by-law, and then applying for a minor variance application can be viewed as double dipping. Dr. Davidson outlined several concerns he has with this process, including:
a. It undermines the use of site-specific zoning by-laws to determine the detailed
development of the land with any long-term certainty.
b. It by-passes citizens’ groups and community members that have worked diligently to develop a consensus on the specific parameters of developments.
c. It diminishes public trust in the planning process.
55Dr. Davidson’s opinion is that once a consensus is achieved for a development, if a developer submits a minor variance application to change that development, this results in a situation where the type of public consultation that the Toronto Official Plan envisions is avoided. Dr. Davidson opined that the long-term outcome can be adversarial positions between the community and developers, especially in circumstances where the minor variance application is an attempt to obtain development permissions which were not part of the negotiated agreement.
56Dr. Davidson opined that close to the Subject Property at 316 Bloor Street West, a similar situation has occurred. A site-specific zoning by-law, based on extensive community consultation and a mediated Ontario Municipal Board settlement, was followed by a minor variance application. The City appealed the original Committee of Adjustment approval of the minor variance application.
57Dr. Davidson notes that the detailed provisions of By-law 73-2021 were negotiated through a re-zoning process that included substantial public involvement. 11 consultation meetings were held, which led to a consensus on the proposed development, and the passage of By-law 73-2021. Dr. Davidson’s opinion is that the process that led to the passage of By-law 73-2021 through the re-zoning process represents sound planning practice. It addresses both the substance and process required to meet the goals, objectives, and policies of the Toronto Official Plan.
58Dr. Davidson provided his further opinion that the minor variance application brought by the developer seeks primarily to increase density, height, and residential unit count. It deals only partially with the substance (i.e. housing intensification), as it reduces items important to future residents like amenity space.
59Dr. Davidson opined that it is very important for there to be public involvement in the planning process. This is one of the two key pillars of planning (i.e. the process of planning). There were 11 meetings with individuals and community representatives for the creation of by-law 73-2021. Dr. Davidson’s opinion is that the applicant chose a route that limited the public involvement process and denied the right of appeal to the community members and residents’ groups that participated in the lengthy consultation that led to By-law 73-2021.
60The three parties opposed to the proposal feel that the minor variance application process does not adequately account for the consultation process that occurred in the creation of the original Site-Specific Zoning By-law. For example, there were 11 meetings which were attended by the various parties throughout this process, and no appeals were lodged against the by-law when it was passed.
61Now, several years later, the three parties are upset because the builder followed the letter of the law when filing the minor variance application. For example, notice must be posted on the site and mailed to neighbours within 60 metres of the subject site. The Applicant followed this requirement. The Applicant did not go beyond procedural the requirements for a minor variance application.
62In addition, I would like to note that Dr. Davidson provided his opinion that he does not consider the Committee of Adjustment hearing process to be a robust public involvement process.
63Dr. Davidson also provided his opinion that the Tribunal has discretionary powers to turn down a minor variance application even if the application meets the four tests.
Provincial Interest
64Section 2 of the Planning Act identifies matters of provincial interest to which the Tribunal shall have regard.
65Mr. Dror opined that the development has appropriate and adequate regard for matters of provincial interest.
66Dr. Davidson noted in his Expert Witness statement (Exhibit 13) that section 2(j) outlines a matter of Provincial Interest to be “the adequate supply of a full range of housing, including affordable housing”.
67I find that various matters of provincial interest are supported by the proposal, and that the most relevant subsections of section 2 of the Planning Act include: (h) the orderly development of safe and healthy communities, (j) the adequate provision of a full range of housing, (p) the appropriate location of growth and development, (q) the promotion of transit supportive development, and (r) the promotion of well-designed built form.
68I do not feel it is necessary to review the cited provisions in detail in this decision as the provincial interest provides the framework within which the various planning documents such as the Official Plan and Zoning By-Law operate.
69In conclusion, I find that various matters of provincial interest are supported by the subject proposal, including the matters of provincial interest which are cited above.
Provincial Policy Statement and Growth Plan for the Greater Golden Horseshoe
70A successful minor variance application before the Tribunal must be consistent with the Provincial Policy Statement (2020), and conform to the Growth Plan for the Greater Golden Horseshoe (2019).
71Mr. Brooks took the Tribunal to the efficient land use/intensification policies found in Policies 1.1.1, 1.1.3.2 and 1.1.3.3 of the PPS, and to the growth management policies in Policies 2.2.1.2, 2.2.3 and 2.2.4 of the Growth Plan. He offered the opinion that the proposed modified amendments would be consistent with the PPS and would conform with the Growth Plan.
72Mr. Dror provided his opinion that the proposal is consistent with the Provincial Policy Statement, and cited the following Policies in particular: 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.4.3, 1.6.7.4, 1.7.1, 1.8.1, 2.6.1, and 2.6.3. Mr. Dror’s opinion is that the proposed variances will facilitate the intensification of the subject site, which is located within walking distance of four subway stations. In addition, the proposal will result in a built form that is compatible with the general height scale of other approved buildings in the surrounding neighbourhood.
73With regard to the Growth Plan, Mr. Dror provided his opinion that the proposal conforms with the Growth Plan, in particular the Guiding Principles in Section 1.2.1 and Sections 2.2.1(2)(c), 2.2.1(3)(c), 2.2.1(4), 2.2.2, 2.2.3, 2.2.4 and 2.2.6. In this regard, the proposed variances will result in an even more transit supportive and pedestrian-oriented development that will make more efficient use of an underutilized parcel of land within an urban growth centre and a strategic growth area.
74Mr. Dror’s further opinion is that the proposal will optimize the use of land and infrastructure. The Subject Property is located in one of the most transit-accessible locations in the city, approximately 190 metres from the Spadina subway station and 225 metres from the St. George subway station, both of which provide access to both Line 1 – Yonge-University, and Line 2 – Bloor-Danforth. The Spadina and St. George stations are two of only four interchange subway stations in the City of Toronto (the others being Bloor-Yonge and Sheppard-Yonge).
75Dr. Davidson provided his opinion that an in-depth review of the multiple policies in the Ontario Planning Act, the Provincial Policy Statement and Growth Plan is not required for the minor variance application. Rather, a limited review based on the twin planning objectives of housing intensification (substance) and public involvement (process) is sufficient.
76Dr. Davidson reviewed some sections in the Provincial Policy Statement, including section 1.4, which deals broadly with housing and in Section 1.4.3 states: “Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area”.
77Dr. Davidson also reviewed Section 4.1 of the Provincial Policy Statement which states that “The official plan is the most important vehicle for implementation of this Provincial Policy Statement. Comprehensive, integrated, and long-term planning is best achieved through official plans”.
78In terms of the Growth Plan, Dr. Davidson referred to Section 2.2.6 and subsection 1(a) that “support housing choice through the achievement of the minimum intensification and density targets in this Plan, as well as the other policies of this Plan by:
I. identifying a diverse range and mix of housing options and densities, including additional residential units and affordable housing to meet projected needs of current and future residents, and
II. establishing targets for affordable ownership housing and rental housing.
79Dr. Davidson also referred to the Growth Plan in Section 5.1, which notes the importance of collaborative actions for implementation and states: “Key to the success of this plan is its effective implementation. Successful implementation will require that all levels of government, First Nations and Métis communities, non-governmental organizations, the private sector, and residents work together in a coordinated and collaborative way to implement the policies of this plan to realize its goals.” This section is most noteworthy for Dr. Davidson’s opinion that even if the proposal meets the four criteria for a minor variance as outlined under section 45(1) of the Planning Act, the Tribunal has a residual power to deny the minor variance application.
80Mr. Wiercinski, Ms. Dexter, and Ms. Landau argued strongly that the builder went through an entire consultation process under section 34 of the Planning Act to create the Site-Specific Zoning By-law, and that the same process should now be followed to amend the process.
81I have cited in more detail some of Dr. Davidson’s references to the Provincial Policy Statement (2020) and the Growth Plan for the Greater Golden Horseshoe (2019) as these quotes help to elucidate Dr. Davidson’s opinion regarding the application. These quotes focus narrowly on Dr. Davidson’s opinion regarding affordable housing. The Tribunal must have regard for these documents globally, and I find that the proposal meets the test for these documents when these documents are considered on a comprehensive level.
82I do not feel it is necessary to review any additional cited provisions of these policies in greater detail in this decision as these documents are general in nature and provide the framework within which the Official Plan and Zoning By-Law operate.
83I find that the proposal is consistent with the Provincial Policy Statement (2020), and conforms to the Growth Plan for the Greater Golden Horseshoe (2019).
ISSUES AND ANALYSIS
84I will now go through the four statutory tests and my findings on each test for each of the four requested variances.
85I would first like to note that the Official Plan policy documents that impact the Subject Property are dense. If I refer to a policy in the context of a particular minor variance this means that I considered it for the other minor variances as well, even if not explicitly discussed elsewhere. The same applies for any matter dealing with the remaining three subsection 45(1) tests.
Maximum permitted total gross floor area – variance 1
- Chapter 900.11.10, Exception CR 289, Regulation (B), By-law 569-2013, and Section 4.(B), By-law 73-2021
The maximum permitted total gross floor area is 27,000 m2.
The altered development will have a total gross floor area of 30,368 m2.
Maximum permitted residential gross floor area – variance 2
- Chapter 900.11.10, Exception CR 289, Regulation (B)(i), By-law 569-2013, and Section 4.(B)(i), By-law 73-2021
The maximum permitted residential gross floor area is 20,475 m2.
The altered development will have a residential gross floor area of 23,859 m2.
Do the proposed variances maintain the general intent and purpose of the Official Plan?
86The Official Plan portion of the minor variance test includes a dense assortment of policies, such as the City of Toronto Official Plan, Official Plan Amendment 368 dealing with the Knox View Corridor, the Downtown Secondary Plan, Site and Area Specific Policy 334 (“SASP 334”), which applies to the Bloor Corridor between Avenue Road and Bathurst Street (“OPA 365”), and Official Plan Amendment 524 (“OPA 524”), which proposes to introduce Site and Area Specific Policies 597 and 598 (“SASP 597” and “SASP 598”) with respect to the Spadina and St. George Protected Major Transit Station Areas (“PMTSAs”), respectively.
87The Subject Property is located within the Downtown Toronto Urban Growth Centre, and is designated under the Official Plan within Mixed Use Areas.
88The Downtown Secondary Plan designates the subject site Mixed Use Areas 3 – Main Street on Map 41-3 Mixed Use Areas. Policy 6.28 provides that development in Mixed Use Areas 3 will be in the form of mid-rise buildings, with some low-rise and tall buildings permitted based on compatibility. Mr. Dror provided his opinion that the proposal maintains the general intent purpose of the Downtown Secondary Plan.
89SASP 334, which applies to the Bloor Corridor between Avenue Road and Bathurst Street, provides that development will generally provide for a transition in height, density, and scale from higher building forms in the east to a low-rise main street character in the west, with nodes of development concentrated at key intersections adjacent to transit hubs. The subject site is identified as being within the Institutional Precinct, where development will contribute to a cohesive and pedestrian oriented public realm, with a consistent street wall, active uses at-grade. Mr. Dror provided his opinion that the proposal maintains the general intent purpose of SASP 334.
90The subject site is also located within two SASPs introduced by OPA 524, which was adopted by City Council at its meeting on February 2 and 3, 2022. SASP 597 and SASP 598, which apply to the Spadina and St. George PMTSAs, include the subject site within the delineated boundaries and would require that existing and new development within the PMTSAs be planned for a minimum population and employment target of 300 and 400 residents and jobs combined per hectare, respectively. They also specify minimum density requirements for individual properties and areas within each PMTSA, with both SASPs specifying a minimum density of 2.0 FSI for the subject site. To date, the Minister has not approved OPA 524 and accordingly, it is not yet in force.
91Mr. Dror opined, and I agree that both gross floor area variances are the direct result of the height variance, as no massing revisions are proposed aside from the increase in tower height. Mr. Dror provided his opinion that neither SASP 334 nor the Mixed Use Areas or Mixed Use Areas 3 designations include limits on density.
92Mr. Dror provided his further opinion that the overall density resulting from the increase in gross floor area, 8.35 FSI (increased from 7.43 FSI), continues to be appropriate for the subject site. Mr. Dror opined that it is important and appropriate from a planning policy perspective to optimize density on the subject site given its location relative to two higher order subway lines, the surrounding built form context, frontage on a major street, and its location within the Downtown. Mr. Dror further opined that the proposed development will contribute to intensification in the Downtown Toronto urban growth centre in a manner that conforms with the urban design and built form policies of the Official Plan and the Downtown Secondary Plan. Mr. Dror is of the opinion that the proposed density responds appropriately to the directions of the Official Plan to promote development standards that facilitate all forms of residential intensification and redevelopment and to promote densities for new housing which efficiently use land, resources, infrastructure, and public service facilities and support the use of active transportation and transit. I agree with Mr. Dror’s opinions as expressed above.
93Mr. Dror provided his opinion that lands designated Mixed Use Areas, and the Downtown as a whole, are anticipated to absorb much of the new housing in Toronto in the coming decades, and the proposed increase in height, resulting in 65 additional residential dwelling units appropriately addresses the Official Plan’s policies related to housing and residential intensification.
94Mr. Dror was of the opinion that the density variances would optimize density on a site well-served by two subway lines and exceed the minimum density proposed by SASP 597 and SASP 598.
95Dr. Davidson provided his opinion that the Official Plan recognizes the need for intensification but focuses on affordable and rental housing.
96For example, Dr. Davidson referred to Section 3.2.1 which states: “The current production of ownership housing, especially condominium apartments, is in abundant supply. What is needed is a healthier balance among high rise ownership housing and other forms of housing, including purpose-built rental housing, affordable rental housing, and affordable low-rise ownership housing for larger households with children and multi-family households.”
97Dr. Davidson noted that the Official Plan is a complex document and there are various official plan amendments that apply to this proposal. Dr. Davidson opined that the Official Plan supports increased density, especially at transit nodes, and a general increase in housing supply. However, Dr. Davidson’s opinion is that there is also a focus on rental and affordable housing, and larger units for families.
98Dr. Davidson opined that while the proposal before the Tribunal adds units and density, the development itself does not provide affordable or rental units. In addition, Dr. Davidson noted that the revised plans reduce the number of 2-bedroom units and increase the number of 1-bedroom units.
99Dr. Davidson’s opinion is that the proposed variances run counter to the general intent of the Official Plan, specifically the detailed policies on the need for residential units that are affordable, rental, and geared to families with children.
100While I agree that the Official Plan deals with the need for housing that is affordable, rental, and geared to families with children, I do not find that this is the general intent and purpose of the Official Plan for the present proposal. I find that the proposal meets the general intent and purpose of the Official Plan through its increase of density within an area that is designated Mixed Use Areas in the Official Plan, and Mixed Use Areas 3 in the Downtown Plan. I have noted above my agreement with the opinions expressed by Mr. Dror with regards to the Official Plan.
101In conclusion, I find that the proposed density variances meet the general intent and purpose of the Official Plan.
Do the variances maintain the general intent and purpose of the Zoning By-Law?
102The intent and purpose of the gross floor area variances is to secure the gross floor area resulting from the approved massing envelope.
103Mr. Dror provided his opinion that permitted gross floor area and other internal performance standards are typically byproducts of the approved massing envelope of a tall building.
104Mr. Dror opined that the additional gross floor area will facilitate the inclusion of an additional 65 residential dwelling units from what the most recent SPA drawings, which will contribute to addressing the housing supply crisis. In his opinion, the proposal maintains the general intent and purpose of the Zoning By-law.
105Dr. Davidson provided his opinion that in the case of By-law 73-2021 the concept of “general intent” is no longer relevant. Dr. Davidson’s opinion is that the concept of general intent, as laid out in section 45(1) of the Planning Act applies to a general zoning by-law covering a municipality. By-law 73-2021 is a site-specific zoning by-law which amended the general by-law, being By-law 569-2013.
106In other words, Dr. Davidson’s opinion is that the Site-Specific Zoning By-law defines the exact provisions for the site. There is no “general intent” but only a “specific intent” laid out in By-law 73-2021. Dr. Davidson provided his opinion that to amend a site-specific by-law would require a rezoning of the property through another site-specific by-law approved by Council.
107I do not agree that an applicant is unable to obtain a minor variance to a site-specific zoning by-law. The text of section 45(1) is as follows:
Powers of committee
45 (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained. R.S.O. 1990, c. P.13, s. 45 (1); 2006, c. 23, s. 18 (1); 2009, c. 33, Sched. 21, s. 10 (11).
108By-law 73-2021 was passed under section 34 of the Planning Act. Section 45(1) of the Planning Act clearly authorizes minor variance applications for any by-law that is passed under section 34. The legislation does not bar minor variance applications for site-specific zoning by-laws. Rather, the section 45(1) test must be reviewed to determine whether a proposal meets the requirements to be successful.
109In conclusion, I find that the general intent and purpose of the zoning by-law are maintained by both gross floor area variances.
Are the variances desirable for the appropriate development or use of the land?
110Mr. Dror provided his opinion that the requested variances are appropriate and desirable, as they will permit the intensification of an underutilized property in a manner that is consistent with the PPS 2020, conforms with the Growth Plan 2019, conforms with the City of Toronto’s Official Plan and conforms with the Downtown Secondary Plan, all of which encourage intensification within built up urban areas to provide for the efficient use of land and municipal infrastructure, particularly in areas that are served by higher order public transit and frequent transit.
111Mr. Dror opined that the subject site is located in an area of the City where development of this scale is planned for and intended, and is located within two recently delineated PMTSAs. Mr. Dror provided his further opinion that the variances will permit the redevelopment of a strategically located property with a high-quality development that will contain retail uses at-grade, retain the Bloor Street United Church and City Shul as institutional uses on the subject site, conserve two heritage resources in the Bloor Street United Church and Pigeon House, introduce office uses, and provide additional housing (349 units of varying types and sizes) in a desirable area within proximity of higher-order transit. I accept Mr. Dror’s opinion as stated above.
112Dr. Davidson’s opinion is that following extensive public consultation, City Council decided what the appropriate development of the land is and enshrined it in By-law 73-2021.
113Dr. Davidson’s opinion is that the desirability test of a minor variance application was meant to assess a general comprehensive zoning by-law. This test cannot be met by a site-specific by-law, as a site-specific by-law defines the appropriate development of the land.
114As noted above when discussing the general intent and purpose of the zoning by-law, I find that the Planning Act’s section 45(1) test applies to a minor variance application from a site-specific zoning-bylaw. In other words, the desirability test must be applied to the proposal to determine whether it meets this stage of the test.
115I find that the proposed increase in gross floor area will result in increased density in an appropriate neighbourhood of the City and that this phase of the test has been met. The proposed gross floor variances are desirable for the appropriate development and use of the land.
Are the variances minor?
116The test of minor is not intended as simply a numerical assessment. It is an assessment of the impact of a proposal.
117Mr. Dror’s opinion is that the impacts associated with the requested variances are minor in nature from both a quantitative and qualitative perspective, and will not result in any undue adverse impacts.
118Ms. Sanchez in her evidence noted that no variance is being sought for the vehicular parking, bicycle parking, or loading requirements as part of the minor variance application.
119As I noted previously, Ms. Sanchez opined that the site is a good candidate for intensification from a transportation perspective due to its excellent existing transportation context, which includes being 200m to St. George Subway Station and 200m to Spadina Station, both of which are transfer stations for the Toronto Transit Commission’s Line 1 (Yonge-University-Spadina) and Line 2 (Bloor-Danforth). In addition, the Subject Property is close to significant employment, commercial, retail and recreational centres along Bloor Street West which can be reached on foot and by transit.
120Ms. Sanchez opined that the conclusions of the BA Consulting Group Ltd. December 2017 Report remain valid. The study dealt with additional vehicular traffic volumes, two-way person transit trips, two-way person walking trips, two-way cycling trips, parking supply and parking facilities, etc. all from the proposed additional 65 units. The study concluded that the additional traffic volumes can be acceptably accommodated on the area street network, area pedestrian network, and local transportation network.
121Ms. Sanchez’s overall opinion is that the proposed development with the additional 65 units in the minor variance request are appropriate and can be supported by the area transportation networks. Ms. Sanchez also opined that the incremental activity levels dealing with pedestrian, cycling, parking and traffic are small. Ms. Sanchez also noted that the transportation impacts of the development were assessed and reviewed in detail as part of the rezoning process and approved by City of Toronto staff. Ms. Sanchez opined that the conclusions previously reached remain valid.
122Dr. Davidson opined that By-law 73-2021 already provided a considerable change in height and density from By-laws 438-86 and 569-2013, and that the proposal is not minor.
123Dr. Davidson provided his opinion that a possible trend may be emerging whereby developers obtain approvals under section 34 of the Planning Act, and then apply for minor variances under section 45(1) of the Planning Act. In other words, a developer applies for a site-specific rezoning to alter provisions of the comprehensive zoning by-law, and once permission has been received, applies for minor variances.
124The concerns with this approach identified by Dr. Davidson include: undermining the use of site-specific zoning by-laws to determine the detailed development of the land with any long-term certainty, by-passing citizens’ groups and community members that have worked diligently to develop a consensus on the specific parameters of developments, and diminishing public trust in the planning process.
125I would like to note that the Planning Act provides applicants the opportunity to apply for a minor variance. In addition, the Planning Act outlines a different process for minor variance applications than for rezoning applications. There is no bar to prevent a minor variance application for a site that has gone through the rezoning process. If a proposal meets the four tests for a minor variance, and the decision-making body determines that it is not appropriate to exercise its residual power and refuse the application, the proposal must be allowed.
126Based on the evidence from Mr. Dror and Ms. Sanchez, I find that the proposed increased gross floor area variances are minor in nature and will not cause an impact which rises to the level of undue adverse impact.
Conclusion
127I find that the maximum permitted gross floor area and maximum permitted residential floor area variances meet the requirements of section 45(1) of the Planning Act.
Maximum permitted building heights – variance 3
- Chapter 900.11.10, Exception CR 289, Regulation (F), By-law 569-2013, and Section 4.(C), By-law 73-2021
The maximum permitted building heights, as shown on Diagram 3 of By-law 73- 2021; are 104 m, 100.5 m, and 97 m.
In this case the altered development will have maximum heights of 120.5 m, 117 m, and 113.5 m; as shown on Revised Diagram 3.
Does the proposed variance maintain the general intent and purpose of the Official Plan?
128The subject site is designated Mixed Use Areas in the Official Plan and Mixed Use Areas 3 in the Downtown Secondary Plan. The intent and purpose of the relevant Official Plan policies is to allow for mixed-use buildings based on compatibility.
129Mr. Dror’s opinion is that the proposed height variance maintains the general intent and purpose of the Official Plan as it implements the Official Plan view policy for Knox College, by ensuring the building continues to not project beyond the silhouette of Knox College, as updated in OPA 368.
130Mr. Dror’s further opinion is that the proposal, with the additional height, will continue to provide for a true mixed-use building, with a mix of new housing, office uses, retail and place of worship uses on the subject site, along with two new Privately-Owned Publicly Accessible Spaces (“POPS”).
131Mr. Dror further opined that none of the Mixed Use Areas, Mixed Use Areas 3 or Institutional Precinct designations provide for specific height limits, but rather speak to the need for compatibility and for a transition in height from higher building forms in the east to a low-rise main street character in the west, with nodes of development concentrated at key intersections adjacent to transit hubs. Mr. Dror opined that with the 16.5 metre (5-storey) increase in height, the proposal will continue to achieve a compatible relationship with its surroundings through the continued provision of an appropriately scaled base building and the conservation and incorporation of Pidgeon House (478 Huron Street) into the base building.
132A key document at issue for this variance is OPA 368 and the amended Heritage Policy A.5 in Section 4 of the Official Plan regarding Knox College. In addition, OPA 365 which has partially amended SASP 334, particularly for the Spadina Node, which does not apply to the subject site. OPA 365 also includes a new map, which remains under appeal but would apply to the subject site. Mr. Dror provided his opinion that the proposal meets the general intent and purpose of OPA 368 and OPA 365.
133Mr. Dror opined that at the time of the previous rezoning application’s approval, the 29-storey height was agreed upon in order to ensure compliance with the test proposed at the time by OPA 368, which would have prohibited projections beyond the silhouette of Knox College when viewed from the southeast and southwest corners of College Street and Spadina Avenue. OPA 368 was modified to measure the views from the northeast and northwest corners instead, resulting in the potential for additional height due to the increased view angle. Mr. Dror’s opinion is that an additional 16.5 metres (for a total of 120.5 metres) in height, will allow the building to continue to fit below the Knox College View Corridor, as modified, continuing to meet the intent and purpose of the Official Plan’s view policies, particularly Policy 3.1.6(44). A View Corridor Analysis was prepared by KPMB Architects to confirm that the proposed changes to the building will not infringe upon the identified views of Knox College. I agree with Mr. Dror’s opinion that proposal allows the building to fit within the Knox College View Corridor.
134The timing of OPA 368 and the approval of zoning by-law 73-2021 was a bone of contention for the three opposing parties. The opposing parties felt that the applicant was aware that OPA 368 was being amended, and that if the applicant intended to change the height of the tower, that this should have been done prior to Zoning By law 73-2021 being passed. That being said, the HVRA and the Annex Residents’ Corporation were both parties to the LPAT appeals dealing with OPA 368. In other words, the awareness of the change to OPA 368 cuts both ways. If the HVRA and the Annex Residents’ Corporation were concerned about the Subject Property, they did not have to consent to the resolution of the matter. As I have stated previously in this decision, the applicant is following proper planning processes by filing a minor variance application. The issue is whether the minor variance application meets the four tests outlined in section 45(1) of the Planning Act.
135Mr. Dror also opined that the proposed height variance meets the intent of the relevant Official Plan policies by resulting in minimal incremental shadow impact on Neighbourhoods and Parks, and the public realm, as well as surrounding properties.
136In addition, the Subject Property is designated under Part VI of the Ontario Heritage Act through By-law 1635-2019 with respect to 300 Bloor Street West and By-law 1640-2019, as amended by By-law 1793-2019, with respect to 478 Huron Street. The Subject Property is located outside of but adjacent to the West Annex Phase 1 Heritage Conservation District Plan, which is designated under Part V of the Ontario Heritage Act, through By-law 1329-2015.
137Mr. Dror provided his opinion that with respect to Policies 3.1.6(5) and (26) related to development on the subject site, the proposed variances include no changes to the building’s built form, aside from the increased tower height. Mr. Dror opined that no changes are proposed to the heritage conservation program, and no revisions were required to the heritage easement agreement (provided for in By-law 1512-2019). Mr. Dror noted that a detailed heritage review process was undertaken as part of the rezoning application, and that a Heritage Impact Assessment was not required by the City in support of this minor variance application. Mr. Dror provided his opinion that the proposed variances would maintain the general intent and purpose of the Official Plan given that there would be no additional impacts on the cultural heritage value and attributes of the Subject Property. I agree with Mr. Dror that the proposal is consistent with the Official Plan when viewed through the lens of cultural heritage value and attributes of the Subject Property.
138Mr. Dror reviewed Policy 3.1.6(32), opining that the Subject Property is adjacent to a property (11 Madison Avenue) within the West Annex Phase 1 Heritage Conservation District Plan. Mr. Dror opined that the West Annex Phase 1 Heritage Conservation District Plan’s focus on the district’s landscape character of landscaped front yards, architectural style, and the physical form of buildings along Madison Avenue will be maintained. Mr. Dror noted that the only physical change resulting from the proposed minor variances is the increased height. Therefore, Mr. Dror’s opinion is that the proposed change would have no impact on the heritage values, attributes, and character of the West Annex Phase 1 Heritage Conservation District Plan. I agree with Mr. Dror on this matter.
139In conclusion, I find that the proposed maximum permitted building heights variance maintains the general intent and purpose of the Official Plan, with regards to heritage, the Knox College View Corridor, and other relevant provisions of the Official Plan.
Do the variances maintain the general intent and purpose of the Zoning By-Law?
140The intent of regulating the height of a building is to help mitigate massing impacts that can result from additional height, and to help maintain a consistent scale of development within a given neighbourhood. In addition, the intent and purpose of the height zoning by-law provision is to secure a height that meets the Knox College view policy.
141Mr. Dror’s opinion is that the proposed height increase maintains the general intent and purpose of the zoning bylaw since the intent of By-law 569-2013, as amended by By-law 73-2021, is to permit a tall mixed-use building with an appropriately scaled podium that conserves the heritage attributes of the former Bloor Street United Church and Pidgeon House. Mr. Dror provided his opinion that the proposal maintains this intent while providing five additional tower storeys, providing desirable additional housing in a transit-supportive location with minimal incremental built form impacts. I agree with Mr. Dror’s opinion.
142Mr. Dror opined that the only change to the massing envelope is a 16.5 metre increase to the height of the tower. Mr. Dror provided his opinion that since the enactment of the Site-Specific Zoning By-law approving the 29-storey, 104.0 metre building, the surrounding context has changed with a new tall building approval at 334-350 Bloor Street West at 35 storeys and 118.0 metres, a tall building approval by the Committee of Adjustment at 316 Bloor Street West at 36 storeys and 121.14 metres (which has been appealed to the Ontario Land Tribunal by the City of Toronto), and a proposal at 320-332 Bloor Street West at 36 storeys and 112.0 metres.
143I find that the proposed height variance maintains the general intent and purpose of the zoning bylaw. The proposal results in an increased height to the mixed-use building which is consistent with other development in the area.
Are the variances desirable for the appropriate development or use of the land?
144Mr. Dror provided his opinion that the proposal will facilitate the optimization of land use on the subject site, by maintaining the originally planned uses while providing for an additional 65 residential units over and above the number of units in the most recent SPA plans.
145I agree and find that the height variance will provide for a more efficient use of the land at a density and built form that is transit supportive, and appropriate for this location.
Are the variances minor?
146Mr. Dror reviewed a Shadow Study dated February 2024, prepared by KPMB. Mr. Dror opined that with respect to the potential impact of the additional height of the building, there is no incremental shadow impact on Neighbourhoods, and minimal incremental impacts on Paul Martell Park to the west. On Paul Martell Park, the only incremental impact are slivers of shadow on the northwest corner of the park at 9:18 a.m. and northeast corner of the park at 10:18 on June 21st. In Mr. Dror’s opinion, the impact is adequately limited and preserves the park’s utility.
147Mr. Dror dealt with the public realm, providing his opinion that the proposal continues to maintain an acceptable amount of sunlight on the surrounding sidewalks. At the equinoxes, there will be additional slivers of incremental shadow impact at 10:18 a.m. on the west Madison Avenue sidewalk, at 12:18 p.m. on the west Huron Street sidewalk, at 1:18 p.m. on the east Madison Avenue sidewalk, and at 3:18 p.m. on the west St. George Street sidewalk. Mr. Dror’s opinion is that the shadow will have only limited incremental impacts, and will not linger on any one stretch of sidewalk for more than an hour. I accept Mr. Dror’s opinion on this matter.
148Mr. Dror opined that the development criteria for development in Mixed Use Areas (Policy 4.5(2)) focuses on locating and massing new buildings so as to: (d) adequately limit shadow impacts on adjacent Neighbourhoods, particularly during the spring and fall equinoxes, and (e)frame the edges of streets and parks with good proportion and maintain sunlight and comfortable wind conditions for pedestrians on adjacent streets, parks, and open spaces. In addition, the Official Plan’s built form Policy 3.1.4(10) provides that the tower portion of a tall building should be designed to: (b) limit shadow impacts on the public realm and surrounding properties, and (c) maximize access to sunlight and open views of the sky from the public realm. In this regard, Mr. Dror’s opinion is that the Official Plan is primarily concerned with shadow impacts on Neighbourhoods, adjacent streets, parks, and open spaces, rather than on other properties within Mixed Use Areas.
149Mr. Dror reviewed the proposed shadow impact of the requested height variance on 95 Prince Arthur Avenue, a Mixed Use Areas designated property within an urban area, as it was identified as an issue in a number of objection letters filed with the Committee of Adjustment. Mr. Dror’s opinion is that while the proposal does continue to shadow 95 Prince Arthur on March 21st, September 21st, and December 21st, none of the shadow is incremental shadow resulting from the proposed variances. In other words, the shadow was already cast by the original approval.
150Mr. Dror’s opinion is that on June 21st, there is a sliver of incremental shadow on the southwest corner of the 95 Prince Arthur Avenue building at 1:18 p.m., and on the southwest corner of the property at 2:18 p.m. At 3:18 p.m., there will be a small amount of incremental shadowing on the at-grade gardens associated with 95 Prince Arthur Avenue, which will be gone before 4:18 p.m. Mr. Dror’s opinion is that since the studied incremental shadow impact occurs only on June 21st, only at three time periods throughout the day, and only impacts a useable amenity area for no more than one hour, and given that the Official Plan’s focus is on protecting Neighbourhoods, adjacent streets, parks, and open spaces, the incremental shadow impacts on 95 Prince Arthur Avenue are minor. I agree with Mr. Dror’s opinion regarding the shadow impact.
151In conclusion, I find that the proposed height variance is minor and does not result in an impact that rises to the level of undue adverse impact.
Conclusion
152I find that the maximum permitted building height variance meets the requirements of section 45(1) if the Planning Act.
Minimum amenity space – variance 4
- Chapter 900.11.10, Exception CR 289, Regulations (G) and (G)(i), By-law 569-2013, and Section 4.(G) and 4.(G)(i), By-law 73-2021
A minimum of 3.88 m2 of amenity space for each dwelling unit must be provided of which a minimum of 1.88 m2 for each dwelling unit must be indoor amenity space.
In this case, the altered development will have a minimum of 3.2 m2 of amenity space for each dwelling unit, of which a minimum of 1.64 m2 for each dwelling unit will be indoor amenity space.
Do the proposed variances maintain the general intent and purpose of the Official Plan?
153Mr. Dror’s opinion is that the proposed development would continue to provide a significant amount of amenity space (3.2 square metres per unit) for the residents, within an amenity-rich area of the City served by numerous institutions, community services and recreational facilities. Mr. Dror’s opinion is that the proposed amenity space will be high quality with a variety of indoor and outdoor programming, and is complementary to the variety of community services and facilities within the neighbourhood. Mr. Dror opined that additional amenity space is provided by a POPS space at grade and a mid-block connection to the POPS at the under-construction KESKUS International Estonian Centre to the west, as well as in the private terraces for residents. Mr. Dror noted that the revised proposal continues to include the POPS space on the subject site, which is not counted towards the required outdoor amenity space although it will functionally provide outdoor amenity space
154Mr. Dror’s opinion is that the proposed amenity space will be high quality, well designed and consider the needs of all ages and abilities in accordance with Official Plan Policy 3.1.3(11), with a variety of different spaces including green space at grade, a pet relief and pet exercise area, a lounge and outdoor patio area at grade, fitness rooms, dining areas, business centre, a media lounge, and multiple terraces.
155Mr. Dror further opined that the amenity space is appropriate given the area context. Furthermore, the subject site is located in proximity to a number of other parks and open spaces and community services and facilities, including Paul Martel Park, Matt Cohen Park, the Huron-Washington Parkette, Huron Street Playground, Robert Street Park, and a new POPS at the KESKUS International Estonian Centre to the immediate west. Nearby community services and facilities include the Miles Nadal Jewish Community Centre to the southwest, the University of Toronto and its various public spaces to the south and southeast, and various other institutions along Bloor Street within the Institutional Precinct, including the Bata Shoe Museum, the Royal Conservatory of Music/Koerner Hall, and the Royal Ontario Museum.
156The opposing parties argued that institutions which are regional magnets should not be taken into consideration when dealing with the amenity space. In addition, the opposing parties argued that there are numerous new developments and residents in the immediate neighbourhood which are not fully accounted for. I do not agree that the surrounding amenity spaces can be discounted because they are regional magnets. These spaces are still present and accessible to current and future neighbourhood residents.
157In conclusion, I find that the amenity space variance maintains the general intent and purpose of the Official Plan.
Do the variances maintain the general intent and purpose of the Zoning By-Law?
158The intent of the amenity space requirement is to provide sufficient communal amenity space for the future residents of the building.
159Mr. Dror opined that although the amenity ratios have decreased, the overall amount of amenity has remained consistent and will continue to be provided at a similar proportion as intended by By-law 73-2021. Further, Mr. Dror noted that indoor amenity space continues to be provided within the building on the ground level, Level 4, Level 4’s mezzanine, and on Level 6, in keeping with the intent of By-law 73-2021 and By law 569-2013.
160Mr. Dror also opined that the by-law requirement of providing a minimum of 40 square metres of outdoor amenity space in a location adjoining or directly accessible to a portion of the indoor amenity space is met, with all but approximately 60 square metres of the 545 square metres outdoor amenity space abutting indoor amenity space.
161I accept Mr. Dror’s opinion and find that the proposal meets the general intent and purpose of the Zoning By-law.
Are the variances desirable for the appropriate development or use of the land?
162Mr. Dror noted that the proposal will also include public realm improvements in the form of the two POPS, including the mid-block connection between Huron Street and the POPS/mid-block connection at the KESKUS International Estonian Centre to the immediate west, connecting to Madison Avenue.
163I agree with Mr. Dror’s opinion that proposal is located in an amenity-rich area, and it includes contributions which are not technically considered amenity space, however, which contribute to the areas that can be enjoyed by residents and members of the public.
164I find that the proposed amenity variance is desirable for the appropriate development or use of the land.
Are the variances minor?
165Mr. Dror opined that the proposal represents a minor reduction in the ratios of overall amenity space per unit from 3.88 to 3.2 square metres, and of indoor amenity space per unit from 1.88 to 1.64 square metres. Mr. Dror’s opinion is that this variance is minor in the context of the additional housing being provided on the site and the overarching goal of achieving appropriate intensification on the Subject Property.
166Mr. Dror also provided examples of recent approvals, particularly in the Downtown, of amenity space ratios that are less than what is proposed with the requested amenity space ratio. These include, among others:
| Address | Indoor (m2/unit) | Outdoor (m2/unit) | Total (m2/unit) |
|---|---|---|---|
| 767-773 Yonge St | 2.0 | 0.86 | 2.86 |
| 15 Mary St | 2.0 | 0.66 | 2.66 |
| 2 Bloor St. | 2.0 | 0.6 | 2.6 |
| 20 Edward St | 1.5 | 1.1 | 2.6 |
| 357-391 Yonge St. | 2.0 | 0.3 | 2.3 |
| 283 Adelaide St W | 1.27 | 1.02 | 2.29 |
| 2 Carlton St | 1.6 | 0.6 | 2.2 |
| 489-539 King St W | 1.5 | 0.7 | 2.2 |
| 8-30 Widmer St | 1.0 | 1.0 | 2.0 |
| 475 Yonge St | 1.3 | 0.7 | 2.0 |
| 15-35 Mercer St | 1.24 | 0.55 | 1.79 |
167I agree with Mr. Dror’s opinions as outlined above, and I find that the proposed amenity space variance is minor and does not cause an impact which rises to the level of undue adverse impact.
Conclusion
168I find that the minimum amenity space variance meets the statutory test to be considered a minor variance pursuant to section 45(1) of the Planning Act.
Section 45(1) Residual Power to Deny a Minor Variance
169Dr. Davidson provided his opinion that a proposal which meets the section 45(1) test for a minor variance can be denied by the Tribunal by using its residual power pursuant to section 45(1).
170I agree with Dr. Davidson that this residual power exists, and I think that this is one such case where the potential use of this residual power must be explored.
171The main basis for using this residual power would be that the developer’s behaviour was so egregious in choosing to go by the route of a section 45(1) minor variance application instead of a section 34(1) rezoning application that this application should not be allowed.
172There were 11 meetings in the development of the Site-Specific Zoning By-law. There were no appeals to the Site-Specific Zoning By-law when it was passed by city council, meaning that there was broad buy-in by all parties involved. The Site-Specific Zoning By-law was passed after a resolution had been reached on the appeal of OPA 368. In other words, the applicant and the City of Toronto were likely aware that additional height was now possible under OPA 368. However, as I noted above, the HVRA and the Annex Residents’ Corporation were also parties to the LPAT appeal dealing with OPA 368, and they consented to the resolution of the height issue.
173The three parties opposed to the minor variance application participated in the original rezoning application process for the approved 29 storey condominium tower, and they feel strongly aggrieved that the property owner has chosen to file a minor variance application, and not go through the rezoning process.
174Dr. Davidson in his Responding Expert Witness Statement dated February 27, 2024, provided his opinion that “There is no suggestion that there were errors or omissions in By-law 73-2021. That By-law is indeed prescriptive, it is a site-specific by-law. It was forged out of an extensive public consultation process and was not intended to be varied. It was a bond between the developer and the residents, which was broken with the application for minor variances.”
175The rezoning process involves public consultation and contains certain appeal rights. The minor variance process does not normally include a public consultation process and there is no right of appeal from third parties since the enactment of Bill 23.
176Dr. Davidson’s opinion is that the process of working with a developer to come to a consensus on a development and then for the developer to submit a minor variance application does not promote the type of public consultation that the Official Plan envisions. Dr. Davidson’s opinion is that in the long-term, this course of action creates adversarial positions, especially if the minor variance application attempts to regain development permissions that were not part of the negotiated agreement.
177Dr. Davidson noted other properties where a similar strategy is being pursued, such as at 316 Bloor Street West. In that case, a site-specific zoning by-law, based on extensive community consultation and a mediated OMB settlement, was followed by a minor variance application.
178Dr. Davidson’s opinion is that sound planning is based on two pivotal concepts - substance and process. Dr. Davidson’s further opinion is that the minor variance application does not meet these concepts. There is no additional affordable or rental housing being provided (i.e. substance), and there was no public consultation process (i.e. process) beyond the minor variance application.
179On the other hand, section 45(1) of the Planning Act exists as a planning process that has been provided by the Ontario legislature. Section 45(1) does not exclude site-specific zoning by-laws. The applicant followed the notice requirements for this section. There has been a three-day hearing before this Tribunal with the participation of three parties opposed to the proposal. One of the parties opposed to the application retained an expert planning witness.
180In addition, the City of Toronto is in support of this minor variance application. Clearly, the City views section 45(1) as an appropriate remedy in this situation, and is not of the position that a section 34(1) application should be brought instead. While the Tribunal is responsible for determining this issue, the City’s position is noteworthy.
181Ms. Dexter argued quite strongly that the section 45(1) process chosen by the developer represents a threat to the democratic participation in the land use planning process and the ability of City residents to have a say in how their City is being built. While I understand Ms. Dexter’s argument, as I noted above, the Ontario legislature made the section 45(1) process available to the applicant, and the City of Toronto is in support of the application. The City of Toronto is governed by a democratically elected city council.
182Considering all the factors above, I do not feel that the use of the Tribunal’s section 45(1) residual power is warranted in this situation, and I decline to use it.
CONCLUSION
183I find that each of the variances meet the four statutory tests for a minor variance outlined in section 45(1) of the Act. I decline to exercise the Tribunal’s residual power to deny the minor variance application.
DECISION AND ORDER
184The appeal is allowed on the following condition:
The owner shall provide the following to be secured in a Section 45(9) agreement to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning:
a) a cash contribution of $450,000 for each increment of additional 1 to 745 square metres of additional gross floor area (representing additional height beyond the original approval) beyond the maximum permitted total gross floor area of 27,000 square metres permitted in Section 4(B), Bylaw 73-2021, payable prior to building permit issuance, towards social services, community facilities, park improvements, road safety, active transportation, community and cultural facilities and streetscape improvements in Ward 11, to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor; and
b) the cash contribution referred to above shall be indexed upwardly in accordance with the Statistics Canada Residential Building Construction Price Index for the Toronto Census Metropolitan Area, reported quarterly by Statistics Canada in Building Construction Price Indexes Table 18-10-0135-01, or its successor, calculated from the date of this Tribunal decision to the date of payment.
T. Kezwer
Panel Member