[1]         The matter before the Tribunal is an appeal by 761 Queen Street East Ltd. (the “Owner”) pursuant to section 34(11) and section 41(12) of the Planning Act with respect to the City of Toronto’s (“City”) failure to announce a decision regarding a Proposed amendment to Zoning By-Law  No. 569-2013.

[2]         The Tribunal was informed that the Parties confirmed that a settlement had been reached and the settlement was presented for the consideration of the Tribunal.

[3]         The Affidavit of Service sworn by Lindsay Dale-Harris marked as Exhibit 2.

[4]         Ms. Dale-Harris was affirmed and qualified to provide for the Tribunal uncontested opinion evidence in areas of land use planning. Ms. Dale-Harris delivered extensive oral, written and visual evidence as contained in her affidavit.

[5]         The lands are municipally known as 759, 761 and 763 Queen Street East, in the City of Toronto (“the Site”).

[6]         The Site is located on the south side of Queen Street East, between Saulter Street and Lewis Street, east of Broadview Avenue. The Subject Property is located within the Leslieville/South Riverdale neighbourhood.

[7]         The Site has frontage of 14.905 metres (“m”) on Queen Street East, a depth of 40.456 m, and is approximately 586 square metres (“m²”) in area. June Callwood Lane extends along the south limit of the Site and provides access to Saulter and Lewis Streets.

[8]         The Site is well-served by public transit. It is located on the 501 Queen Streetcar route which operates with head times of less than 10 minute service all day and all evening, seven days a week. There are eastbound and westbound stops for this streetcar at Saulter Street. The Queen Streetcar connects directly to the Queen and Osgoode Stations on the Yonge-University subway line. For car access, there is a direct ramp to the Don Valley Parkway approximately 500 m to the east and the Gardiner Expressway and Lakeshore Boulevard are readily accessible to the south.

[9]         The Site is designated as Mixed-Use Areas on Map 18 of the City’s Official Plan and is zoned Commercial Residential CR 2.5 (c2.0; r2.0) SS2 (x2294) pursuant to By-law 569-2013, and Mixed-Use District MCR T2.5 C2.0 R2.0 H14 pursuant to former City of Toronto By-law 438-86. The applicable development standards under both By-laws permit a total density of 2.5 x the lot area, with a maximum commercial and residential density of 2.0 x the lot area, and a building height of 14.0 m.

[10]      The Recommended Proposal, with a revision date of October 12, 2022, includes:

[11]      The proposed built form, including height, massing and transition, was reviewed by City Planning staff throughout the processing of the Revised Applications. As set out in the November 14, 2022, Request for Directions Report, City planning staff confirmed that:

[12]      In a Memorandum dated August 19, 2021, Heritage Planning commented on the Heritage Impact Assessment dated April 19, 2021. The Memorandum acknowledges that the four-storey base presents a street wall height that is consistent with the adjacent heritage building at 765 Queen Street East, and that the façade design takes cues from the arched openings of the adjacent heritage building and proposes red brick materials that are compatible with the surrounding historic main street context.

[13]      Heritage Planning indicated that it had no objections to the proposed development in principle, subject to certain comments and recommendations. The minor comments were addressed through a number of subsequent meetings and revisions, with the October 2022 package including design elements to ensure that the proposed signage and arches would maintain existing datum lines and sensitivity to existing storefront configurations.

[14]      Heritage Planning is satisfied with the proposal.

[15]      Engineering and Construction Services (“ECS”) requested revisions to the Servicing and Stormwater Management Report. These comments were addressed in a Response letter dated January 20, 2022, and a revised Servicing and Stormwater Management Report.

[16]      ECS further requested in a Memorandum dated February 10, 2023, minor revisions to the material submitted, including a request that vehicular parking be provided at a resident rate of 0.39 spaces per unit. The required 11 spaces have been provided.

[17]      ECS further added that, as a preliminary notice of approval condition for site plan, a Construction Management Plan would be required for each stage of the construction process. A Construction Management Plan was prepared by Nextrans Consulting Engineers, dated April 8, 2022.

[18]      The Tribunal heard that the City Council endorsement requires the submission of a pre-construction survey and building condition assessment, a vibration study and a vibration monitoring program, together with a post-construction condition survey. The Owner engaged Valcoustics to prepare a Demolition/Construction Vibration “Zone of Influence” and Pre-Construction Studies dated July 25, 2022, and a Memorandum from EMSA Construction Group, dated October 17, 2022, requested consent for the installation of a vibration monitor inside the basement of 765 Queen Street East, which has now been installed. The pre-construction survey is in the process of being completed and will be submitted shortly. The post-condition survey cannot be completed prior to the construction, but the requirement to prepare the survey post-construction will be acknowledged in the pre-construction survey.

[19]      Further comments were received from other departments and agencies, such as  Rogers, Toronto Hydro, Toronto Lands Corporation, Canada Post, Enbridge, Economic Development & Culture, Environment & Energy Division, and the Toronto Catholic District School Board. All comments have been addressed or will be addressed through the site plan and permitting stages of the project.

[20]      Ms. Dale-Harris confirmed that all City and agency comments have been addressed in the Recommended Proposal.

[21]      Section 2 of the Planning Act sets out matters of provincial interest. The Recommended Proposal has appropriate regard for, and will achieve, the following, as implemented through provincial and local policy documents:

[22]      Ms. Dale-Harris opined the Recommended Proposal has regard for matters of Provincial interest, including the orderly development of safe and healthy communities; the adequate provision of a full range of housing; the appropriate location of growth and development; the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians, the promotion of a built form that is well designed and provides for public spaces that are of high quality, and the mitigation of greenhouse gas emissions through increased emphasis on the use of transit and limiting the availability of car parking.

[23]      The Recommended Proposal addresses the policies of the Provincial Policy Statement, 2020 (“PPS”) regarding building strong and healthy communities by:

[24]      The Recommended Proposal also addresses the housing policies by providing for a range and mix of housing options and densities to meet projected housing needs through an appropriate form of residential intensification that is directed to an area where appropriate levels of infrastructure and public service facilities are available. (Policies 1.4.1 and 1.4.3)

[25]      Section 1.7, Long Term Economic Prosperity, identifies that maintaining and, where possible, enhancing the vitality and viability of main streets supports long-term economic prosperity (1.7.1 d)).

[26]      Section 2.6 of the 2020 PPS directs that significant built heritage resources be conserved. Development that is proposed on lands adjacent to a protected heritage property is required to conserve the heritage attributes of the protected heritage property. Although the adjacent property at 765 Queen Street East is not designated as a heritage property, sufficient study has been undertaken to ensure that its potential heritage attributes are appropriately protected and conserved through the proposed development.

[27]      Ms. Dale-Harris opined that the Revised Applications, as modified in the Recommended Proposal is consistent with its policies and, in particular, the policies promoting the efficient use of land and infrastructure in a transit-supportive manner and the enhancement of main streets.

[28]      The Site is within an appropriate location for accommodating intensification and higher-density mixed-uses in a more compact built form. The Site is located on an Avenue on Map 2 of the Official Plan, and on a Major Street on Map 3 of the Official Plan. Queen Street East is served by existing frequent transit service, including the 501 streetcar route, which is part of the ten-minute network and is also identified as a Transit Priority Segment on Map 5 of the Official Plan. The Recommended Proposal conforms with policy 2.2.1.2.(c) of the Growth Plan. It provides for an appropriate level of growth within a settlement area, at a location which is well served by existing transit and existing public service facilities.

[29]      The Recommended Proposal conforms to the objective to support the achievement of complete communities by:

[30]      Ms. Dale-Harris opined that the proposed mixed-use development is an appropriate form of transit supportive intensification for this section of Queen Street East. The proposed development supports the provincial growth management policies and land use goals, as contained in the Growth Plan, and conforms with its policy objectives.

[31]      Queen Street East, between the Don Valley Parkway and Victoria Park Avenue, along which is the Site, is identified as an Avenue on Map 2, Urban Structure of the Official Plan. Section 2.2.3 of the Official Plan directs that Avenues are important corridors along major streets where reurbanization is anticipated and encouraged.

[32]      Policy 2.2.3.1 provides that reurbanizing the Avenues is to be achieved through the preparation of Avenue Studies for strategic mixed-use segments of the corridors shown on Map 2. These Studies are to be used to establish, among other things, contextually appropriate as-of-right zoning. In 2010, City Planning staff completed the Avenues and Mid-Rise Building Study to identify performance standards that are appropriate to apply to new development located on a designated Avenue. As noted in the 2014 Planning Rationale, in July 2010 City Council removed Queen Street East from the Avenue Study but did not amend the Urban Structure Map to delete the designation.

[33]      Chapter 2.2.3 acknowledges that not all Avenues can be studied at once, and that development may occur prior to the completion of an Avenue Study. The sidebar on page 2-22 acknowledges that the rezoning process, which must assess the criteria in chapter 2.2.3 and in the Mixed-Use Areas policies, will result in a process that mirrors that for the Avenue Study. Policy 2.2.3.4 provides that the review will include an assessment of the impacts of the incremental development of the entire Avenue segment at a similar form, scale, and intensity, and consider whether that development would adversely impact any adjacent Neighbourhoods and whether it is supportable by available infrastructure. Policy 2.2.3.3 provides that development on an Avenue must implement the policies of the Plan for the relevant designation area.

[34]      Ms.Dale-Harris provided that the Recommended Proposal represents a form of reurbanization that promotes the use of transit, increases housing options, and contributes to a safe and attractive pedestrian environment on Queen Street East. It conforms to the Avenue policies in Chapter 2.2.3.

[35]      The Site is designated Mixed-Use Areas on Map 18 of the Toronto Official Plan. Properties on the north side of Queen Street across from the Site are also designated Mixed-Use Areas. Properties located immediately south of the Site are designated Neighbourhoods. The Official Plan expects that Mixed-Use Areas will absorb most of the anticipated future increase in new housing, as well as retail, office and service employment. The growth management policies of the Official Plan direct new growth to Avenues and Mixed-Use Areas.

[36]      A wide variety of uses are permitted in Mixed-Use Areas, including residential, offices, retail and services, institutional and entertainment uses. The uses proposed in the Recommended Proposal conform with these permitted uses.

[37]      The Recommended Proposal satisfies the criteria for new development proposed in Mixed-Use Areas set out in Section 4.5.2 of the Official Plan. The new development on the Site:

[38]      Ms. Dale-Harris summarized the mixed-use building proposed for the Site conforms with the land use policies and development criteria for Mixed-Use Areas of the Toronto Official Plan.

[39]      The Recommended Proposal conforms to the built form policies of Section 3.1.2 of the Official Plan, including those in force at the time the Initial Applications were filed and those in force today.

[40]      The development fits with its context as it frames and supports Queen Street East: the main entrances of the building are clearly visible and directly accessible from the public sidewalk on Queen Street East, and ground floor uses have views into and access to the adjacent street. Parking and vehicular access is provided from June Callwood Lane and is organized in an underground parking stacker to minimize impact on surrounding properties. No surface parking is located between the front face of the building and the sidewalk.

[41]      The massing of the building fits harmoniously into its existing and planned context. Any impact on neighbouring streets and properties is minimized by the building, which frames Queen Street East, respects the character of the adjacent main street buildings and creates an appropriate transition in scale to the residential neighbourhood to the south. Adequate light and privacy for neighbouring properties and limited shadowing is provided through the use of stepbacks and an angular plane.

[42]      The Province approved Official Plan Amendments No. 479 and 480 on September 11, 2020, which updated the Public Realm and Built Form policies in the Official Plan.

[43]      Section 3.1.1 sets out policies applying to the public realm, including streets, parks, open spaces and public buildings. Policy 3.1.1(1) states that the public realm is comprised of all public and private spaces to which the public has access. Policy 3.1.1(2) outlines that the public realm will, among other things, provide the organizing framework and setting for development; foster complete, well-connected walkable communities and employment areas that meet the daily needs of people and support a mix of activities; provide a comfortable, attractive and vibrant, safe and accessible setting for civic life and daily social interaction; provide opportunities for passive and active recreation; and be functional and fit within a larger network. Policy 3.1.1(3) further outlines that the City will seek opportunities to expand and enhance the public realm in order to support the needs of existing and future populations.

[44]      Policy 3.1.1(6) recognizes that City streets are significant public open spaces which connect people and places and support the development of sustainable, economically vibrant and complete communities.

[45]      Section 3.1.2 provides principles that speak to the relationship between the location and organization of development, its massing and the interface between the building and the public realm. Policy 3.1.2(1) provides that development will be located and organized to fit with its existing and planned context and to frame and support adjacent streets, lanes, parks and open spaces. Relevant criteria include:

[46]      Policy 3.1.2(3) directs that development will protect privacy within adjacent buildings by providing setbacks and separation distances from neighbouring properties and adjacent building walls containing windows.

[47]      Policy 3.1.2(4) requires development to locate and organize vehicle parking, vehicular access and ramps, loading, servicing, storage areas and utilities to minimize their impact and improve the safety and attractiveness of the public realm, the site and surrounding properties.

[48]      Section 3.1.2 also includes additional language with respect to street proportion. The sidebar notes that street proportion will be determined by considering the existing conditions and determining the appropriate setbacks, scale and massing of buildings to provide a street proportion that will provide good sunlight and daylight conditions and will be implemented through a number of measures including setbacks, building heights, pedestrian perception zones, streetwall heights, base building heights and stepbacks.

[49]      Policy 3.1.2(5) directs that development will be located and massed to fit within the existing and planned context, define and frame the edge of the public realm with good street proportion, fit with the character and ensure access to direct sunlight and daylight on the public realm by: providing streetwall heights and setbacks that fit harmoniously with the existing and/or planned context; and stepping back building mass and reducing building footprints above the streetwall height.

[50]      Further, refinements have been made to both the sidebar text and Policy 3.1.2(6) to clarify that development must provide good transition in scale in consideration of both the existing and planned contexts of neighbouring properties and the public realm. In particular, Policy 3.1.2(6) requires development to provide good transition in scale between areas of different building heights and/or intensity of use in consideration of both the existing and planned contexts of neighbouring properties and the public realm. In this regard, Policy 3.1.2(7) states that transition in scale will be provided within the development site and measured from shared and adjacent property lines.

[51]      Policy 3.1.2(9) directs that the design of new building facades visible from the public realm will consider the scale, proportion, materiality and rhythm of the facade to:

[52]      Policy 3.1.2(10) requires that development will promote civic life and provide amenity for pedestrians in the public realm to make areas adjacent to streets, parks and open spaces attractive, interesting, comfortable and functional by providing:

[53]      Policy 3.1.2(11) encourages new indoor and outdoor shared amenity spaces provided as part of multi-unit residential developments to be high quality, well designed, and consider the needs of residents of all ages and abilities over time and throughout the year.

[54]      Section 3.1.3 of the Official Plan recognizes that Toronto is a complex city built over many decades with a diversity of uses, block, lot and building type patterns. The Official Plan recognizes mid-rise scale development as “a transit-supportive form of development” and that the heights of mid-rise buildings are “contextual” and “informed by the width of the right-of-way onto which they front” and may vary between four and 11 storeys. Policy 3.1.3(4) states that mid-rise buildings will be designed to:

[55]      It was noted that since the initial application was filed, before OPA 479 and OPA 480 received Ministerial approval, the policies summarized above are relevantbut not determinative in terms of the evaluation of the proposal in relation to the Official Plan policy framework.

[56]      Ms. Dale-Harris summarized that the proposal addresses the built form and public realm policies below, after discussion of the applicable Urban Design Guidelines.

[57]      Chapter 3.1.6 addresses heritage conservation. Policy 5 directs that proposed development on or adjacent to properties on the Heritage Register will ensure that the integrity of the heritage property’s cultural heritage value and attributes will be retained. A Heritage Impact Assessment (“HIA”) has been completed with reference to the characteristics of Queen Street East and the adjacent Ralph Thornton Community Centre. The HIA has been considered by Heritage Planning staff and design revisions have been incorporated to the satisfaction of staff, including the mitigation of perception of height through incremental stepbacks beginning on the fifth floor, and a contemporary façade design that takes cues from the arched openings of buildings along Queen Street East.

[58]      The proposal conforms with the housing policies of the Official Plan by providing a full range housing in terms of form, tenure, and affordability to maintain the current and future needs of residents (policy 3.2.1.1).

[59]      Policy 3.2.1.2 directs the maintenance and replenishment of the existing housing stock and encourages new housing supply through intensification that is consistent with the Official Plan.

[60]      The City adopted Mid-Rise Building Performance Standards in 2010 and an Addendum to those standards in 2016, which are to be used together during the evaluation of mid-rise development standards (Mid-Rise Guidelines).

[61]      The main components of the Mid-Rise Guidelines are as follows:

[62]      Ms. Dale-harris testified that the Growing Up Guidelines were adopted by the City on July 28, 2020. The intent of the Guidelines is to ensure that new development in vertical communities within a dense infill context will continue to provide for complete communities with a range of unit types and sizes, ensuring livability for the needs of Toronto’s growing population.

[63]      Section 2.3 provides that indoor and outdoor amenity spaces should be provided in compliance with By-law 569-2013. As noted above, a generous indoor and outdoor amenity space has been provided on the rooftop, lobby, and basement levels.

[64]      Ms. Dale-Harris further provided that Section 3.0 provides guidelines for unit sizes to accommodate functional and adequate living space. The ideal unit size for a two bedroom unit is 90 m², and a three bedroom unit is 106 m². The units have been designed to be generous in size, with several of the two bedroom units larger than 100 m². Guidelines respecting floor layouts and the provision of private outdoor amenity space have also been considered in the building layout and design.

[65]      Ms. Dale-Harris opined that the Recommended Proposal is consistent with and/or conforms to the recent planning framework established through the 2020 PPS, the Growth Plan and the City of Toronto Official Plan. The proposed development is respectful of the existing development context, acknowledges the adjacent heritage building through its massing, scale and architectural expression, and minimizes any visual impacts along the Queen Street East main street and on the residential neighbourhoods to the south through the provision of setbacks and stepbacks.

[66]      The proposed massing comprises a base volume, which occupies the entire width and length of the Site, consistent with other commercial buildings along this stretch of Queen Street. The ground level storefronts are setback from the property line to allow for generous entryways with columns that are features of the facade and maintain the built form character along Queen Street where buildings are built up to the property line. The four-storey height of the base is similar to the height of the Ralph Thornton Centre. Above the four-storey base, each of the additional three storeys step back incrementally from the Queen Street frontage, starting with a setback of approximately 3.3 m on the fifth storey. Similar setbacks are also present on the rear elevation, facing June Callwood Way, starting at level four. Small setbacks are present on narrow portions of the west and east elevations, adjacent to existing buildings, for the purpose of increasing natural light within the units of the development.

[67]      The Recommended Proposal addresses the applicable Toronto Official Plan policies (Policies 3.1.2(1), 3.1.2(2), 3.1.2(3), 3.1.2(4), 3.1.2(5), 3.1.3(1), 4.2(2)). The Recommended Proposal:

[68]      Ms. Dale-Harris opined that from an urban design perspective, the Recommended Proposal provides an appropriate built form pattern and establishes a good relationship between the proposed building on the Site and the Queen Street East streetscape and limits any adverse impact upon the adjacent Neighbourhoods to the south.

[69]      At the time of submission of the Initial Application, amendments were sought to both By-law 438-86 and By-law 569-2013. Since that time, as the applicable regulations in By-law 569-2013 have come into force, By- law 438-86 is no longer applicable.

[70]      The Draft Zoning By-law Amendment submitted in May of 2022 has been prepared to implement the proposed development plans, and includes revisions to the base zone standards for the following elements:

[71]      Ms. Dale-Harris opined that the Recommended Proposal is consistent with the 2020 PPS, conforms to the 2020 Growth Plan and the City of Toronto Official Plan and provides for a building which reflects the objectives of the Owner while addressing the comments and concerns received from City Planning staff and City agencies.

[72]      Ms. Dale-Harris further opined the proposal, as currently constituted, represents good land use planning and should be approved, subject to the preconditions of release of the final Order as identified by City Council.

[73]      The Tribunal accepts the uncontroverted evidence of Ms.Dale-Harris in support of the settlement.

[74]      The Tribunal finds that the Settlement Proposal will fit harmoniously with the existing and planned built form context and will enhance the area by intensifying an underutilized site which is well served with municipal infrastructure.

[75]      The Settlement Proposal will be an efficient use of the land and will support the achievement of the PPS and Growth Plan policy directions promoting intensification within a built-up urban area. The Settlement Proposal will result in a desirable mixed-use intensification project having convenient access to transit. Further, the Tribunal is satisfied that the Settlement Proposed will create a high-quality addition to the area, in keeping with the built form policies of the TOP

[76]      The Tribunal finds that the Settlement Proposal is consistent with the Provincial Policy Statement 2020, conforms with the policies of the Growth Plan for the Greater Golden Horseshoe 2019, and the City of Toronto Official Plan. The Settlement Proposal represents good planning and is in the public interest.

[77]      THIS MATTER having come on for public hearing on Friday, the 17th day of February, 2023, and the Tribunal having received the Oral and Affidavit evidence of the Applicant in support of the proposal;

[78]      AND THE TRIBUNAL having issued an oral Decision allowing the appeal in part, and approving the proposed zoning by-law amendment in principle;

[79]      AND THE TRIBUNAL having received submissions from the parties that the final Order be withheld until such time as the City Solicitor advises that certain pre-conditions, included herein as Attachment 1, have been satisfied; 

[80]      AND THE TRIBUNAL having been advised by the Parties that the pre-conditions have been satisfied to the satisfaction of the City; 

[81]      THE TRIBUNAL ORDERS with respect to the above-referenced appeal that the appeal is allowed in part and Zoning By-law 569-2013, as amended, is further amended in accordance with the zoning by-law amendment attached to this Order as Schedule 1. The Tribunal authorizes the municipal clerk to format, as may be necessary, and assign a number of this by-law for record keeping purposes.