Local Planning Appeal Tribunal Tribunal d’appel de l’aménagement local
ISSUE DATE: February 06, 2019 CASE NO(S).: PL170028 PL170626
The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: D. Crupi & Sons Limited Appellant: Valleymede Building AMA Corporation Subject: Proposed Official Plan Amendment No. OPA 321 Municipality: City of Toronto OMB Case No.: PL170028 OMB File No.: PL170028 OMB Case Name: D. Crupi & Sons Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: D. Crupi & Sons Limited Appellant: Global Fortune Real Estate Development Subject: By-law No. 477-2017 Municipality: City of Toronto OMB Case No.: PL170626 OMB File No.: PL170626 OMB Case Name: D. Crupi & Sons Limited v. Toronto (City)
Heard: July 30 - August 17 and September 10-11, 2018 in Toronto, Ontario
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APPEARANCES:
Parties Counsel
Global Fortune Real Estate M. Flowers and Z. Fleischer (student-at-law) Development Corporation
D. Crupi & Sons Limited D. White
Valleymede Building AMA Corporation D. Bronskill
City of Toronto R. Kallio and D. Elmadany
DECISION DELIVERED BY C.J. BRYSON AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
[1] Global Fortune Real Estate Development Corporation (“Global Fortune” and “Applicant”) wishes to develop a multi-unit residential complex at 4665 Steeles Avenue East (“Subject Lands”), inclusive of three towers, up to 793 condominium units, 12,808 square metres (“sq m”) of retail space and 3,257 sq m of office space. Global Fortune requested the City of Toronto (“City”) to convert the Subject Lands’ Official Plan (“OP”) land use designation from Regeneration Areas to Mixed Use Areas as part of the City’s five year comprehensive OP review. It then applied for a zoning by-law amendment to the Scarborough Employment Districts Zoning By-law No. 24982 (“ZB”) to allow for the introduction of residential uses on the Subject Lands and site specific performance standards.
[2] The City initiated and then authorized Official Plan Amendment 321 (“OPA 321”) on December 15, 2016 (Exhibit 1C, Tab 27), which re-designated the Subject Lands from Regeneration Areas to Mixed Use Areas. OPA 321 was a result not only of the request of Global Fortune but of the Steeles-Redlea Regeneration Area Study (“Study”) initiated by the City in 2014 and adopted by Council in 2016. 3 PL170028 PL170626
[3] The Steeles-Redlea Regeneration Area (“SRRA”) was one of seven Regeneration Areas created by City Official Plan Amendment 231 (“OPA 231”), adopted by City Council on December 18, 2013. OPA 231 also created Site and Area Specific Policy 395 (“SASP 395”) which required that lands bounded by Steeles Avenue East to the north, the Stouffville GO train corridor to the east of the Milliken Go Station, the planned Redlea Avenue extension to the west and the northern boundary of Passmore Avenue properties to the south, be developed in accordance with a framework created through a study of the area taking into account the policies of section 4.7.2 of the OP. The Study undertaken pursuant to SASP 395 was deemed sufficient by City Council for purposes of the secondary plan requirement of section 4.7.2 of the OP. OPA 231 was partially appealed but the portion creating the SRRA and SASP 395, which authorized the Study, were approved by Order of the then Ontario Municipal Board on June 22, 2015.
[4] While OPA 321 re-designated the Subject Lands and surrounding lands north of the Milliken Go Station from Regeneration Areas to Mixed Use Areas, the SRRA Study area lands south of the Milliken GO Station and north of the Passmore properties were re-designated from Regeneration Areas to Employment Areas. OPA 321 further amended SASP 395 to establish policies for development in the SRRA area (“SASP 395 No. 2), including a requirement for provision of office employment uses and the provision of two new public streets from the planned Redlea Avenue extension to the Milliken GO Station, one above and one below it, and a north-south pedestrian connection from Steeles Avenue East to the Milliken Go Station through the Subject Lands. OPA 321 also deleted the existing Site and Area Specific Policy 104 (“SASP 104”) from lands within the SRRA area, which allowed for certain sensitive uses, and added a new Site and Area Specific Policy 497 (“SASP 497”) to recognize four existing places of worship. Finally, SASP 395 No. 2 adopted the Steeles-Redlea Urban Design Guidelines (“SRUD Guidelines”) to assist in evaluating development applications for the SRRA area. The SRUD Guidelines also reference the provision of the two new public streets above and below the Milliken GO Station, indicating their conceptual design. OPA 321 was subject of extensive agency, stakeholder and public consultation. 4 PL170028 PL170626
[5] OPA 321 is subject of two appeals pursuant to section 17(24) of the Planning Act (“Act”): (1) Valleymede Building AMA Corp. (“Valleymede”), the owner of a property at the corner of Steeles Avenue East and Redlea Avenue, and; (2) D. Crupi & Sons Limited (“Crupi”), the owner of properties that host industrial uses on the north and south side of Passmore Avenue. The appeal of Valleymede was made subject of Phase II of this proceeding, which is set to commence on Monday, February 11, 2019, due to the separate nature of the appeal issues. Valleymede is concerned that it was not included in the Mixed Use designation afforded to the Subject Lands by OPA 321 and with the removal of SASP 104 as it applied to their lands. Valleymede, the City and Global Fortune shared the view at the outset of Phase I of these proceedings that any Phase I decision would not impact Phase II of the proceedings. Crupi appealed OPA 321 on the basis of claimed incompatibility of the proposed Mixed Use development with its land uses along Passmore Avenue to the southeast of the Subject Lands and Milliken GO Station. Crupi did not appeal the Mixed Use designation itself, submitting at the hearing that a different type of mixed use development with increased office space and lesser residential density would be more appropriate from a planning perspective.
[6] In response to Global Fortune’s application to allow for the desired residential, retail and office uses on the Subject Lands, the City passed By-law No. 477-2017 (Exhibit 2A, Tab 15) (“ZBA”) on April 28, 2017, subject to OPA 321 coming into force, and after extensive agency, stakeholder and public consultation. The ZBA introduced residential uses into the zone, performance standards for height, setbacks, massing and other matters, as well as comprehensive section 37 agreement requirements and a hold provision (“H”) requiring Global Fortune to provide lands for a 20-23 metre (“m”) right-of- way, to be assumed by the City as the public street just north of the Milliken GO Station, running from Redlea Avenue to the Milliken Go Station, the proposed development and the existing Splendid China Mall adjacent to the proposed development.
[7] Global Fortune appealed the ZBA pursuant to section 34(19) of the Act on a number of grounds including the need for consistent use of terminology throughout the By-law, the prohibition of openings on the south walls of the condominium towers, 5 PL170028 PL170626
minimum parking requirements, restrictions on balcony projections and maximum floor plate, section 37 agreement requirements including quantum, and the H provision and associated conditions applicable to the provision of lands for the public street and primary access to the proposed development, Milliken GO Station and Splendid China Mall. By the time of the hearing, all but one of Global Fortune’s appeal issues had been resolved between it and the City and an amended ZBA (Exhibit 27) (“ZBA No. 2”) was provided to the Tribunal for its consideration. The one remaining ZBA issue in dispute and not provided for in ZBA No. 2 is the OPA 321, SASP 395 No. 2 and ZBA requirement that the required 20-23 m right-of-way north of the Milliken GO Station be a “public” street. Global Fortune submitted at the hearing that it did not object to the extent of the 20-23 m right-of-way, the associated H provision, or to the City’s desire for the right-of-way to become a public street, but only to the requirement of “public” in the ZBA performance standard 557 under an H provision and as also found within the ZBA performance standard 2385, for it has no control over the City assuming any right-of way as a public highway under the Municipal Act, 2001.
[8] Crupi also appealed the ZBA pursuant to section 34(19) of the Act and on a global basis due to compatibility concerns, submitting the ZBA permissions endanger its existing and planned industrial operations to the southeast. Crupi owns 70 Passmore Avenue, on its north side, which hosts heavy equipment storage, indoor and outdoor repair space and a portable aggregate crushing train at the north end of the property and within approximately 175 m of the Subject Lands. Cosimo Crupi, as President of D. Crupi & Sons Ltd., testified his family company has also been exploring the siting of a ready-mix concrete batching plant on that site. Crupi also owns 83-85 Passmore Avenue, on the south side, which is occupied by a long-standing asphalt plan and associated outdoor storage. Further, Crupi owns “0” Passmore Avenue to the east of 70 Passmore Avenue, which serves as an overflow aggregate and equipment storage yard and occasional site for a portable aggregate crusher. Crupi submitted the ZBA and ZBA No. 2 are inconsistent with the policies of OPA 231, which created the former SRRA, the Provincial Policy Statement, 2014 (“PPS”) employment and compatibility policies, similar Growth Plan for the Greater Golden Horseshoe, 2017 (“GGH”) policies, the OP 6 PL170028 PL170626
Employment Areas and Mixed Use Areas policies, and general good planning principles in relation to compatibility between high density residential uses and existing and planned industrial uses.
[9] Two Participants testified at the hearing, Denis Lanoue, a member of the unincorporated Heathwood Ratepayers Association (“Heathwood”), and Keeble McFarlane, who also lives in the Heathwood low-rise residential area to the west of the Subject Lands, SRRA and Kennedy Road. They expressed concerns in regard to increased traffic through their neighbourhood, the speed of that traffic and associated public safety risks, and pressure on local public facilities, including schools and community centres.
[10] The following witnesses were qualified by the Tribunal to provide expert opinion evidence in the area of land use planning: Douglas Muirhead, Senior Planner for the City; Renrick Ashby, from the City Community Planning Division; Louis Tinker for Global Fortune, and John McDermott for Crupi. Diana Birchall, Planning and Urban Design Consultant for the City and Robert Glover for Global Fortune were qualified by the Tribunal to provide expert opinion evidence in the area of urban design.
[11] Alan Filipuzzi, of City Transportation Planning, Godly Abraham, Traffic Planning Technologist for the City, and David Richardson for Global Fortune were qualified by the Tribunal to provide expert opinion evidence in the area of transportation and/or traffic planning.
[12] Scott Penton for Global Fortune and Corey Kinart for Crupi were qualified by the Tribunal to provide expert opinion evidence in the area of acoustics, environmental noise and vibration. Nigel Taylor for Global Fortune and Bridgette Mills for Crupi were qualified by the Tribunal to provide expert opinion evidence in the area of air quality.
[13] Finally, Johnny Chimienti was qualified by the Tribunal to provide expert opinion evidence in the area of architectural design for Global Fortune and Cosimo Crupi 7 PL170028 PL170626
testified in regard to his company’s history, and its current and desired operations along Passmore Avenue.
PROPERTY, SURROUNDING CONTEXT AND PROPOSED DEVELOPMENT
[14] The Subject Lands consist of approximately 1.54 hectares (“h”) located on the south side of Steeles Avenue East, approximately 350 m east of Kennedy Road and west of Midland Avenue. They have approximately 119 m of frontage on Steeles Avenue East and a depth of 149 m, comprising the westerly portion of a larger parcel that was redeveloped into the Splendid China Mall at 4675 Steeles Avenue East. The Subject Lands are currently occupied by a surface parking lot serving the Splendid China Mall under lease from Global Fortune. The Subject Lands currently enjoy two accesses from Steeles Avenue East and can be accessed from Redlea Avenue via the Milliken GO Station private driveway. The planned grade separation for Steeles Avenue East will reduce the Steeles Avenue East access to the Subject Lands to one location on the western portion its frontage and the private Metrolinx driveway and it will remove the access to Splendid China Mall.
[15] The Stouffville GO rail corridor runs to the east of the Subject Lands with the Milliken GO Station adjacent and approximately 50 m southeast of the development site. To the west is a two storey medical office building and surface parking lot, a vacant parcel owned by the City, a two storey commercial-industrial building (Wei’s Auto Service) and another two storey commercial-industrial building (Diamatic Metal Fabricating). Across Steeles Avenue East to the north is the City of Markham and three large commercial complexes: Pacific Mall, Kennedy Corners and Market Village. Approximately 100 m to the northeast, is the Mon Sheong Court & Care seniors’ complex with residential buildings ranging from six to 24 storeys in height. Further to the west and east are established low rise residential areas and further to the south are a mixture of industrial, commercial, retail, service and institutional uses, including the Crupi operations. 8 PL170028 PL170626
[16] The proposed development consists of three towers of 17 (“Tower A”), 26 (“Tower B”) and 28 (“Tower C”) storeys, resting upon podiums of three to five storeys. It is to proceed in phases, with construction of Tower B in the southwest of the Subject Lands, then Tower C to the east and Tower A to the northwest. A north-south pedestrian connection is to run through the middle of the site to connect Steeles Avenue East and the development to the Milliken GO Station. The proposal includes a privately owned but publicly accessible central open space, a large amount of retail space abutting the existing Splendid China Mall and a commercial office component split between Towers B and C. Parking is to be both above grade and within three levels of continuous underground parking, to be integrated with parking for Splendid China Mall which will lose it surface parking lot due to the development. Temporary parking for Splendid China Mall customers during the early stages of the phased development may reside on other Global Fortune lands directly south of the Milliken GO Station and is to be confirmed between the City and Global Fortune during the site plan process. The proposal also includes a mix of indoor and outdoor amenity space, including an outdoor space on the roof of the podium of Tower C.
[17] As noted above, OPA 231 created seven Regeneration Areas including the SRRA. Regeneration Areas under the City OP provide for a broad mix of uses including residential, commercial, light industrial, institutional, parks and open space. It is applied to areas with significant vacant lands and or buildings in need of revitalization. Per section 4.7 of the OP, not all Regeneration Areas will be prone to the same mix of uses but will be subject to a Secondary Plan, or in this case, the Study as approved by Council in OPA 231 and SASP 395, to satisfy the otherwise OP requirement for a secondary plan to guide such development.
[18] The Study undertaken recommended the SRRA lands north of the Milliken GO Station be considered for new residential uses and be re-designated from Regeneration Areas to Mixed Use Areas. These lands are approximately one third of the SRRA lands. The Study found intensification along Steeles Avenue East would enhance the existing public realm and pedestrian environment and support use of the Milliken GO Station 9 PL170028 PL170626
and planned enhancements to it and the Stouffville GO rail line. The City also considered the change to Mixed Use as complimentary to proposed high density development permissions across Steeles Avenue East in the City of Markham. Finally, the Study found SRRA lands to the south of the Milliken GO Station were more prone to land use compatibility issues with permitted industrial uses along Passmore Avenue and beyond, which may not be able to be sufficiently mitigated. Those lands were therefore re-designated from Regeneration Areas to Employment Areas.
[19] SASP 104 applied to the SRRA lands and beyond, including the Crupi land holdings described above. SASP 104 permits business and trade schools, libraries, fraternal organizations, long-term care facilities, recreational uses and places of worship. It was established in the former City of Scarborough Official Plan which was carried over into the City OP. SASP 104 as it applied to the SRRA was deleted by OPA 321, per recommendation of the Study. This change removed SASP 104 permitted sensitive uses from the SRRA lands with the caveat of the implementation of SASP 497 that accommodated four existing places of worship along Kennedy Road and Midland Avenue.
[20] City OP Mixed Use Areas policy allows for a broad mix of residential, commercial, office and institutional uses in single or mixed use buildings, as well as parks and open spaces. A balance of uses is sought within Mixed Use areas, while maintaining a focus upon reduced auto dependence and providing compact residential units along Avenues, services for the needs of the immediate community and thoughtful transition to nearby Neighbourhoods. Mixed Use Areas are to provide an attractive pedestrian environment, access to schools, parks, community centres and libraries.
[21] The Subject Lands and lands north of Passmore Avenue, including the Crupi lands at 70 Passmore Avenue, are subject to the ZB, which permits some sensitive uses including day nurseries, financial institutions, personal service shops, restaurants, retail stores, and vehicle service stations and repair shops. The City of Toronto Zoning By-law No. 569-2013 is not applicable to the Subject Lands. 10 PL170028 PL170626
[22] Crupi Lands south of Passmore Avenue, including Crupi lands at 83-85 Passmore Avenue, are subject to both the ZB and the City Zoning By-law No. 569- 2013. Generally, lands on the north and south side of Passmore Avenue however are zoned to permit industrial uses and open storage. Crupi’s asphalt plant at 83-85 Passmore Avenue was established prior to the ZB, which considers an asphalt plant a prohibited use, so it enjoys legal non-conforming status. City By-law No. 569-2013 originally permitted the use of an asphalt plan for this property but that permission was later removed by an amending by-law, which is currently subject of separate appeal before the Tribunal.
PARTICIPANT CONCERNS
[23] Mr. Lanoue and Mr. McFarlane testified to their concerns about potential increased traffic volumes and speed concerns in the Heathwood neighbourhood, highlighting a young student that was hit by a car in the area and died as a result. They commented on the existing congestion at the Kennedy and Steeles intersection and existing demands on local services, including schools and community centres.
[24] The City retained R.E. Millward Associates Ltd. to prepare a Community Services and Facilities Assessment and Implementation Plan as part of considering residential development in the SRRA. That Assessment undertook an evaluation of existing facilities within a study area that extended to the City of Markham and beyond the parameters of the SRRA to a reasonable catchment area. The Assessment noted 49 elementary schools and 12 secondary schools at or near capacity in the study area and a lack of subsidized child care spaces. It also noted that this is not an unusual situation throughout the City. For implementation, it identified the need to support child care space, funding for libraries, community agency and cultural space for local programs and settlement services, and improvements to the L’Amoreaux, Stephen Leacock and Milliken Park Community Recreation Centres for youth and child programming and other services. 11 PL170028 PL170626
[25] OPA 321 and SASP 395 No. 2 identify affordable housing, child care spaces, community agency and cultural space, along with library and community centre improvements as priority community benefits as required for residential development within the SSRA. ZBA No. 2 includes section 37 agreement requirements for community open space, park improvements, speed bumps in the Heathwood neighbourhood, improvements to the L’Amoreaux Community Centre and a range of service and traffic improvements throughout the immediate area of the proposed development. The Tribunal notes school boards did not appeal OPA 321 or the ZBA though they were consulted for the Community Services and Facilities Assessment, the Study, OPA 321 and the ZBA. ZBA No. 2 as amended has no substantial changes in this regard. Accordingly, the Tribunal is satisfied the requirements of the ZBA as incorporated into ZBA No. 2 as amended will address the pressures identified in the Assessment, in proportion to this particular SRRA development.
[26] In regard to traffic and related safety concerns, Mr. Richardson opined without objection or reply evidence being brought forward that there was no reason for residents of the proposed development to utilize the Heathwood neighbourhood streets to access anything but community services such as schools or the L’Amoureux Community Centre. He further opined there is a sufficient network of collector and arterial streets in the area and planned improvements to same resulting from the proposed development which together will improve the current traffic situation. The Steeles Avenue East grade separation project is also meant to improve traffic congestion in the area. Finally, the ZBA No. 2 requirements for the installation of speed bumps in the Heathwood neighbourhood are to specifically address the safety concerns raised.
[27] The Tribunal is therefore satisfied that OPA 321, SASP 395 No. 2 and ZBA No. 2 as amended will improve traffic congestion in the area and will address the safety concerns of the Heathwood residents as well as a substantial portion of the identified community service needs in the Community Services and Facilities Assessment. The Tribunal is also satisfied that in the absence of school boards contesting the proposed development on the basis of capacity, that students living in the new residential units 12 PL170028 PL170626
can be accommodated in the catchment area identified in the Community Services and Facilities Assessment.
PLANNING EVIDENCE
[28] The Tribunal will now address the planning evidence of the City, Global Fortune and Crupi in reference to the issues list for Crupi as outlined in the PO for the hearing, issued on May 28, 2018. The PPS, GGH and OP policies noted therein which relate specifically to matters of compatibility will be addressed separately and further below. The Tribunal considers the Global Fortune and additional Crupi challenge to the ZBA regarding Street A legal and jurisdictional arguments and as such those issues will also be addressed separately and further below.
[29] Mr. Crupi described his family’s business history to the Tribunal. Under cross- examination, as well as within his earlier correspondence to the City regarding OPA 321 and the proposed development, Mr. Crupi stated that there were no possible conditions of approval for the proposed development that could provide the Crupi businesses assurance in relation to potential land use conflicts arising. The only Crupi request of the Tribunal was to remove permissions for high density residential development throughout the SRRA, by not authorizing OPA 321 or the ZBA in any respect.
[30] As noted above, Crupi did not appeal the OPA 231 conversion of Employment Lands to Regeneration Areas for the SRRA. The Tribunal therefore accepts that the present case is not an appeal regarding the conversion of Employment Lands, invoking related PPS, GGH and OP policies, but an appeal of the proposed Mixed Use Areas designation and proposed development on the basis of compatibility concerns. Those concerns are to be evaluated in view of OPA 321, the ZBA and relevant PPS, GGH and OP compatibility policies and City and MECP compatibility guidelines, including the required supporting environmental studies for the development application.
[31] Compatibility is not about prohibition but in this context an exercise in assessing 13 PL170028 PL170626
the potential adverse impacts of a high density mixed use development on existing and planned industry activities to the southeast and vice versa, and the availability of mitigation tools to address any adverse effects arising.
[32] The first issue identified by Crupi in the PO seeks to have the Tribunal assess whether OPA 321 and the ZBA reflect the principles found in sections 2.2.4.5, 2.2.4.6, 2.2.4.7, 3.5.1.2(b) and 4.6 of OPA 231. These portions of OPA 231 were partially approved by City Council on December 18, 2013 and were later amended in part on appeal and by Order of the Tribunal on July 10, 2018. The City objects to the applicability of OPA 231 sections 2.2.4.6 and 2.2.4.7 to the assessment of OPA 321 and the ZBA. Global Fortune objects to the applicability of OPA section 4.6 to the within appeals. The Tribunal agrees with the City and Global Fortune in both regards.
[33] Section 2.2.4.6 of OPA 231 relates to Employment Areas in the vicinity of existing major transportation infrastructure and the need to preserve same for industrial uses. The subject Crupi operations are not in the vicinity of City defined major transportation infrastructure. Section 2.2.4.7 of OPA 231 relates to priority movement of trucks and transit vehicles on roads in the area. There is no evidence of any current of future interference with movement of Crupi trucks to and from the area arising from the proposed development or instruments. Further, section 4.6 of OPA 231 applies to City defined employment areas. The appeals of Crupi do not engage employment area policy therein but to OPA 321 and compatibility policies as outlined above. The recent Tribunal approved amendments to OPA 231 policies do not effect these conclusions.
[34] OPA 231 sections 2.2.4.5 and 3.5.1.2(b) relate to the need for mitigation studies at proponent cost and efforts through same to mitigate against complaints arising from residential uses being developed near existing and planned industrial uses. This matter will be addressed through compatibility evidence and findings below and again, the Tribunal approved amendments to these OPA 231 policies do not change the related conclusions. 14 PL170028 PL170626
[35] Section 3.5.1.2(b) of OPA 231 indicates the City will pursue economic development that protects employment areas as stable places of business. Of note here is the evidence of Mr. McDermott for Crupi. He provided the Tribunal with a chart outlining his view of employment area destabilization as a result of the introduction of residential uses into the SRRA. The Tribunal finds there was no substantiating evidence for a destabilization of Crupi or other nearby industrial uses identified during the hearing. To the contrary, the evidence demonstrated a nearby concrete batching facility was recently approved by the City and MECP and that Crupi has also obtained recent MECP approvals relating to its operations. There was no evidence of closures or mitigated operations pertaining to Crupi or other industrial operators in the area arising from nearby existing residential and sensitive uses.
[36] The second issue identified by Crupi seeks the Tribunal to assess whether OPA 321 and the ZBA are consistent with PPS policies 1.2.6.1, 1.3.1, 1.3.2.1 and 1.3.2.3. The City objects to the relevance of policy 1.3.2.3 regarding the protection of employment areas in proximity to PPS defined major goods movement facilities and corridors, which are not found around the SRRA and Crupi lands. They also object to the relevance of PPS employment area policy as relevant to assessing conversion of Regeneration Lands to Mixed Use Areas. Global Fortune objects to the relevancy of policies 1.3.2.1 and 1.3.2.3 on this same basis.
[37] Policy 1.3.2.1 speaks generally to protection of PPS defined employment areas for current and future employment uses and specifically to infrastructure for same. If this policy is applicable, it will be sufficiently dealt with by the compatibility assessment below. The Tribunal agrees that policy 1.3.2.3 is not applicable to the within appeals for reasons stated by the City. PPS policy 1.2.6.1 pertains to land use compatibility and long term viability of major facilities such as the Crupi operations along Passmore Avenue. Accordingly, it too will be addressed by the compatibility evidence and findings below.
[38] PPS policy 1.3.1 speaks generally to providing an appropriate mix of employment 15 PL170028 PL170626
uses through municipal planning policy and maintaining sites for same. In this regard, Mr. McDermott proposed that OPA 321 was inappropriate for while it provides for residential, retail and office uses, it does not consider large office development as an alternative to the Global Fortune proposal. There was no evidence provided to the Tribunal however of a requirement to do so, of any market demand for such alternative development in the area or of any reduction in potential compatibility issues in that context. The suggestion of Mr. McDermott that an eight storey limit for residential use along Steeles Avenue East, with a requirement for offices between those residences and the Milliken GO Station was not accompanied by evidence to demonstrate it would result in fewer potential compatibility issues.
[39] The third issue identified by Crupi is the alleged lack of conformity of OPA 321 and the ZBA with GGH policies 2.2.5(7) and (8). The City objects to the relevance of policy 2.2.5(8) on the same basis as it objected to the relevance of PPS policy 1.3.2.3, that the Crupi operations and proposed development are not near GGH defined major goods movement facilities and corridors. The policy also references prime employment area identification which does not apply to the Crupi or other nearby industrial lands. The Tribunal agrees with the City position.
[40] In regard to GGH policy 2.2.5(7), the City submits OPA 321 and the ZBA conform to it for the goal of the policy is to prohibit residential uses and limit sensitive uses in employment areas. OPA 321 and the ZBA do not provide for residential uses in employment areas. OPA 321 also deleted SASP 104 from employment areas within the SRRA. Finally, existing sensitive uses within the SRRA employment areas are left intact but there is no evidence of adverse effects from those sensitive uses upon Crupi operations.
[41] Issues 4 through 6 identified by Crupi in the PO bring into question whether it is generally appropriate and good planning to locate high density residential uses adjacent to and overlooking employment areas and whether there is an appropriate planning rationale for the proposed high density development on the Subject Lands. 16 PL170028 PL170626
[42] The City and Global Fortune argue justification exists for the proposed development and instruments due to the Study undertaken, OPA 321 and SASP 395 No. 2 policies for development of SRRA lands, SRUD Guidelines to inform those policies and the development, and the detailed community improvement and compatibility performance standards in the ZBA and ZBA No. 2. They submit the location and planning rationale for the proposed development are supported by PPS, GGH and City OP policies at large and that issues of compatibility and community service pressures have been fully assessed and addressed by the proposed instruments and underlying studies of the proponent and the City.
[43] The City and Global Fortune illustrated that high density residential uses already exist approximately 100 m to the northeast of the Subject Lands and to the southwest of the Crupi operations, both with direct overlook of those operations. The Tribunal accepts that the orientation and design of the proposed towers preclude direct overlook of the Crupi operations. And, there is no evidence that lesser height, density or a different mix of uses on the Subject Lands would lessen the potential impact of development upon Crupi operations. The Tribunal accepts the City and Global Fortune position that there is nothing inherently objectionable to having high density residential uses near industrial uses but that it is a matter of compatibility in view of evidence of potential adverse effects of a development upon the continued industrial uses on nearby lands, relevant regulatory constraints and development design.
[44] Issues 8-15 identified by Crupi in the PO engage compatibility concerns regarding noise, odour, dust and potential complaints of residents of the proposed development in regard to Crupi’s existing and planned operations at 70 and 83-85 Passmore Avenue. Accordingly, these issues will be addressed below in the compatibility analysis.
[45] In closing submissions, Crupi raised the new issue of the legality of the Street A ZBA conditions which will be addressed below. Crupi further raised a new issue regarding the proper servicing for the development, on the basis of the Witness 17 PL170028 PL170626
Statement of Pezhman Imani for the City. Prior to the hearing, the City determined it unnecessary to call evidence from Mr. Imani for it was satisfied with the performance standards of the ZBA and the opportunity to further address servicing in the site plan process. The Tribunal is satisfied, in absence of clear evidence as to the inability of the ZBA and site plan process to address these concerns, that this issue need not be addressed. Further, the Tribunal cannot see any connection between the public nature of Street A and development servicing and adverse impacts upon Crupi operations arising from the proposed development and instruments.
[46] Crupi also submitted in closing that it would be improper to approve the proposed development and instruments in absence of evidence from Splendid China Mall regarding same. Again, Crupi did not provide the Tribunal any evidence of potential negative impacts upon Splendid China Mall arising from the proposal. The Tribunal notes that Splendid China Mall did not participate in the hearing and it fails to see a connection between Splendid China Mall access and parking needs and impacts upon the Crupi operations arising from the proposed development.
[47] Finally, Crupi raised an issue that agreements between it and Global Fortune are required to protect Crupi from harm arising from MECP complaints. Given that potential terms of an agreement within Tribunal planning jurisdiction were not provided to the Tribunal, it cannot comment on the planning aspects of same. It is clear however that the PPS, GGH and OP do not require agreements between private parties as part of the planning process. The MECP D-6 Guidelines recommendation for such agreements regarding compatibility issues will be addressed below.
[48] Subject to any unresolved compatibility issues, the relevant PPS, GGH and OP policies overwhelmingly support the proposed development and OPA 321 and ZBA instruments in supporting high density residential and mixed use development upon the Subject Lands. The proposed development is along an identified City Avenue, is comprised of compact urban form housing, serviced by existing and to be improved infrastructure, adjacent to a major transit station area which is also subject of planned 18 PL170028 PL170626
improvements, and provides substantial community improvements through a required section 37 agreement. The proposal includes enhancements to the public realm along Steeles Avenue East, the mid-block pedestrian connection and Street A to the Milliken GO Station. It includes significant open public space and renders no shadows, wind or other discernable adverse impacts of concern upon residential neighbourhoods to the east and west and mixed uses to the north and south.
[49] OPA 321 and SASP 395 No. 2 provide for Street A, enhancing access to transit services and providing for better connections throughout SRRA lands upon future development. They also designate two thirds of SRRA lands back to employment areas and thereby demonstrate a balanced approach in the conversion of Regeneration Lands to permitted use designations and remove SASP 104 sensitive uses from the immediate area. Further, the proposed development is reflective of proposed mixed use and high density residential development across Steeles Avenue East in the City of Markham, which is out for public comment per direction of City of Markham Council.
[50] The Tribunal therefore accepts the proposed development and instruments of OPA 321 and ZBA No. 2 as amended are consistent with the PPS, conform to the GGH and OP policies pertaining to employment lands and mixed use lands, and respect the City OP, and SRUD Guidelines.
COMPATIBILITY
[51] Pursuant to section 7 of the PO, the experts on environmental or compatibility evidence, as contemplated in the PPS, GGH, OP, OPA 321, SASP 395 No. 2, ZBA and MECP D-6 and NPC-300 Guidelines, were directed to meet and strive toward an agreed statement of facts. Mr. Penton, Mr. Kinart, Mr. Taylor and Ms. Mills met to discuss the Crupi compatibility concerns regarding OPA 321, the ZBA and proposed development. They came to an Agreed Statement of Facts as a result of that meeting (Exhibit 20), which is appended to this Decision as Attachment 2. 19 PL170028 PL170626
[52] The Agreed Statement Facts was reached despite some debate amongst the Parties and experts as to the classification of the mobile aggregate crushing train located in the north portion of 70 Passmore Avenue, approximately 175 m southeast of the Subject Lands, and the uncontested evidence of Mr. Penton that the mobile crushing train could not continue to be located at its current location pursuant to its Environmental Compliance Approval (“ECA”) requirement that it be at least 350 m from any sensitive use. The experts agreed to proceed with the compatibility and mitigation analysis on the basis of the worst case scenario, being that the Subject Lands are within the 300 m separation distance from existing 70 Passmore Avenue crushing operations, as outlined in the MECP D-6 Guidelines as applicable to Class III industries and the proposed introduction of residential uses. They further agreed to proceed as though section 4.10 of the D-6 Guidelines applied due to that current Class III operation and the proposed infill development on the Subject Lands. There was no disagreement that the proposed development is within the 1000 m D-6 Guideline influence zone of the mobile crushing operation at 70 Passmore Avenue and the asphalt plant at 83-85 Passmore Avenue, also a Class III industrial operation. Further, there was no disagreement that the potential ready-mix concrete batching plant for 70 Passmore Avenue would be a Class II industrial facility with a 70 m recommended separation distance and a 300 m influence zone for purposes of the D-6 Guidelines. Finally, the Parties and experts agreed that MECP NPC-300 Guidelines for noise limits applies to the proposed development and Subject Lands, which are a Class 4 area for purposes of those Guidelines.
[53] The mitigation measures outlined in the Agreed Statement of Facts and secured by ZBA No. 2 include use of blank facades on the south facing walls of the three towers above the podium levels, a 4.2 m high noise wall to shield the outdoor amenity space on the podium of Tower C, enclosed noise buffer balconies (“ENBBs”) to be located on the east and south facades of Towers B and C above the podium level, mandatory central air conditioning with provision for carbon filters as deemed necessary, self-sealing doors for all doorways leading on to southern facing balconies on the podium level of Tower B, and imposition of warning clauses into all agreements of purchase and sale for 20 PL170028 PL170626
residential units, for noise, odour and dust, to be registered on title. Details of the satisfactory warning clauses were provided by the experts as Exhibit 22.
[54] Section 4.10 of the D-6 Guidelines applies when an infill development or transition to mixed use is proposed within the relevant minimum separation distance. It requires that the proposal be supported by OP policies or a formal planning process, with boundaries of redevelopment clearly defined, and specific zoning performance standards based upon the worst case scenario. The Guideline suggests a feasibility analysis be undertaken to justify the development, in face of its anticipated off-site adverse impacts and available mitigation. It indicates that analysis should involve detailed mapping of the proposed development, all nearby industrial facilities and the sources of adverse impacts, followed by an assessment of contaminant discharges from industries, available mitigation efforts which are feasible upon technical assessments, and an indication of how the mitigation efforts will be secured. It also suggests proponents are to demonstrate there are no objections to the proposal raised by industries and others stakeholders. Further, when the proposed development includes sensitive or residential uses, it suggests warning clauses be required regarding potential nuisance effects from nearby industry and that those clauses be included in offers of purchase and sale and registered on title.
[55] It is not clear to the Tribunal that section 4.10 of the D-6 Guidelines applies to the current situation. Section 1.2.3 states that the Guideline as a whole is not intended to address non-stationary industrial facilities such as a portable asphalt plant. Presumably the same intent applies to a portable crushing operation. A minimum separation distance is not engaged in the experts’ analysis and Agreed Statement of Facts other than in relation to the portable crusher on 70 Passmore Avenue. If section 4.10 does not apply for the reasons stated, only the general provisions of the D-6 Guidelines would apply to the proposed development as being within the influence area of the deemed Class III operations on 70 and 83-85 Passmore Avenue and not the section 4.10 requirement for an absence of stakeholder complaints. 21 PL170028 PL170626
[56] Regardless of these concerns, the Tribunal does not find that section 4.10 of the D-6 Guidelines suggests a demonstrable absence of any complaints, but only of evidenced complaints that cannot be addressed by effective, secured mitigation. To read the Guidelines to the contrary would negate the purpose of the Guidelines read as a whole, put form over substance and allow for abuse of process. The Tribunal also does not find the Guidelines suggest agreements between the proponent and industry are required in every case but only where genuine concerns regarding a lack of sufficient mitigation exist and an agreement is deemed required by the approval authority in relation to development application(s). Finally, despite the use of the word “shall” in the Guidelines, they are guidelines and not a legal requirement until imposed in a municipal and/or subsequent Tribunal approval.
[57] With that said, the Tribunal will proceed to review the compatibility evidence and the proposed development and instruments in view of the worst case scenario as accepted by the experts. The Agreed Statement Facts addresses potential air quality and noise adverse effects arising from the existing and planned Crupi operations on future residents of the proposed development and vice versa. The experts agree that the proposal can proceed if section 4.10 of the D-6 Guidelines is met. They further agree that air quality is not a concern as measured at the property line of the Crupi properties and that noise emanating from the Crupi and other area land uses can meet the NPC-300 Guideline limits in relation to the proposed Class IV area development, with the mitigation measures proposed by Global Fortune and secured by ZBA No. 2 performance standard 2385.
[58] Upon these agreed facts, they further agree the only remaining compatibility concerns are potential future complaints regarding fugitive odour and dust. Crupi is concerned that complaints in this regard may lead to changes to existing ECAs and limits on current and planned operations, whether or not there is an infringement of existing ECAs or related regulations, and related MECP enforcement. On this basis, the Crupi experts submitted that there is not an absence of valid objections as required by section 4.10 of the D-6 Guidelines and Crupi pressed the Tribunal to grant the Crupi 22 PL170028 PL170626
appeals or, in the alternative, for the Tribunal to order agreements between Crupi and Global Fortune to protect them against the results of such complaints. The Tribunal, in absence of any suggested terms or conditions of approval in this regard, presumes the desired terms would be in relation to future needed mitigation on site of Crupi operations and or indemnity for same and any resulting enforcement costs, which are not conditions of approval within the jurisdiction of the Tribunal on this appeal. The Tribunal is also not satisfied that there is an evidenced concern or complaints arising from future residents of the development in regard to fugitive odour or dust, given the mitigation measures secured in ZBA No.2 and the absence of evidence of such complaints from existing sensitive uses in the area, which have direct overlook of the Crupi operations and unsealed windows and balconies.
[59] The experts agreed that potential conflicts between industry and sensitive land uses are site specific and to be addressed through context specific studies as contemplated by the Guidelines, regulations and standards of the MECP. Accordingly, they agreed that the Miller Paving example submitted by Crupi is not helpful to the Tribunal in assessing sufficient mitigation in the circumstances of the development. Further, Crupi’s experts added a caveat to the Agreed Statement Facts - that mitigation measures listed therein would not eliminate the potential for complaints and that consideration of agreements between Crupi and Global Fortune should be considered, including those contemplated under the Industrial and Mining Lands Compensation Act (“IMLCA”). Agreements contemplated by the IMLCA are between owners of an industry and owners of land adjacent for payment of compensation by the industrial owner due to any damage or injury resulting or likely to result to the existing neighbouring uses from the operation of the industry. That is not our context or what is contemplated by Crupi in this instance. Crupi wishes to secure provision of potential future on-site mitigation and or indemnity from Global Fortune if Crupi is required to engage in MECP complaint processes, implement changes in their operation or face regulatory infractions as a result. It did not suggest that it is concerned with civil liability or precluding same as a result of existing sensitive use neighbours. 23 PL170028 PL170626
[60] The Tribunal finds that absent further evidenced mitigation needs or the refusal of Global Fortune to provide what the experts have agreed upon, that there are no valid objections to the proposed development for purposes of section 4.10 of Guideline D-6. The concerns of fugitive dust and odour complaints and the lack of evidence regarding their potential will be addressed below. The Tribunal further finds that it is not authorized to create and impose private agreements upon the parties, which are not provided for in an underlying municipal condition of approval or otherwise demonstrated to be within Tribunal jurisdiction.
[61] The experts agree that MECP air quality standards are to be met at the property line of Crupi operations regardless of proposed neighbouring uses. Mr. Taylor opined that there are no air quality concerns at the Crupi property lines in view of Crupi ECAs and other MECP regulatory requirements and that any levels would be higher at existing residential receptor areas to the east of the Crupi operations and would decrease with the elevation of proposed development. Mr. Taylor also notes that Crupi is bound to control fugitive dust per its ECA and the MECP required Best Management Practices Plan for the Control of Fugitive Dust Emissions and that no further mitigation is required as a result of the proposed development from a regulatory standpoint. Ms. Mills testified that potential air quality complaints are not eliminated despite the lack of further regulatory requirements for existing or planned Crupi operations. She suggested agreements are required to protect Crupi but again, no potential terms or conditions were proposed for Tribunal consideration as necessary to mitigate such potential adverse impacts and as demonstrably within Tribunal jurisdiction to impose.
[62] Ms. Mills did raise a concern regarding some specific inputs in the air quality analysis of Mr. Taylor in her in chief testimony, which took place after examination of Mr. Taylor, which was not subject of cross-examination by Crupi. This concern not being put to Mr. Taylor in cross-examination brought about a breach of the Rule in Browne v. Dunn1 – put simply, Mr. Taylor was not given an opportunity to respond to the concern.
1 Browne v. Dunn (1893) 6 R. 67, H.L. 24 PL170028 PL170626
As a result and in the interest of hearing all potentially material evidence in the public interest, the Tribunal permitted Global Fortune to call reply evidence from Mr. Taylor following the evidence of Ms. Mills. Counsel for Crupi objected strenuously to this allowance, suggesting it was a grave breach of procedural fairness and natural justice. The Tribunal however found that the evidence should have been put to Mr. Taylor before being raised by Ms. Mills after his testimony and further indicated to Crupi counsel the opportunity to request a recall of Ms. Mills should it feel the response of Mr. Taylor raised disputed, material compatibility impacts for consideration by the Tribunal. A request to recall Ms. Mills was not made by counsel for Crupi. Further, the Tribunal finds the recalculation regarding air quality with the desired inputs of Ms. Mills demonstrated no regulatory concern or further compatibility concern from those already addressed by the Agreed Statement of Facts. It was also suggested by Crupi that the disagreement over proper inputs should bring the weight attributed to all of Mr. Taylor’s work into question, a suggestion the Tribunal declined to accept. There was no evidence of a lack of credibility or bad faith but only of a difference of opinion.
[63] In regard to fugitive dust and odour, it is important to recognize that there was no evidence presented of such complaints from the residents of the high-density Mon Sheong development approximately 100 m to the northeast of the Subject Lands, though it does not enjoy the mitigation measures agreed to by Global Fortune and enjoys direct overlook of the Crupi operations to the south. Further, any such complaints and resulting mitigation in relation to 83-85 Passmore Avenue operations, which resulted from the Mon Sheong residences at 2020 McNicoll Avenue to the southwest of the asphalt plant were due to direct views at a closer range, unsealed windows and balconies, and an absence of on-site mitigation measures. There is no evidence that the proposed residential units in Towers A, B and C will have views of the Crupi operations, given the siting and orientation of buildings, or that fugitive dust and odour will be an issue given the requirements for blank facades, ENBBs, self-sealing doors and other agreed upon odour measures. Further, there was no evidence of complaints regarding fugitive odour and dust or otherwise from sensitive use receptors far closer to the Crupi operations, including existing SASP 104 uses and low-rise residential properties to the 25 PL170028 PL170626
east and west of the Crupi operations.
[64] Mr. Penton and Mr. Taylor, for Novus Environmental, prepared noise and air quality impact assessments in relation to Crupi operations on Passmore Avenue, other area industrial operators and the proposed development. Those impact assessments were reviewed by the City and their consultant Golder Associates (Exhibit 2B, Tabs 23- 41). Crupi’s experts, Mr. Kinart and Ms. Mills, reviewed the assessments but did not prepare independent assessments and did not share all available Crupi operation and monitoring information with Novus prior to or during the mandated meeting of experts for purposes of reaching an agreed statement of facts. Further, the repeated concerns of potential fugitive dust and odour complaints raised by Mr. Kinart and Ms. Mills, which were said to be based upon their significant experience with similar industrial operations to those of Crupi, were not accompanied by any evidence of those operations, their planning and environmental compliance history, surrounding context details, relevant regulatory approvals or relevant studies. Accordingly, the Tribunal gives more weight to the detailed and updated impact assessments of Novus and the peer review conclusions of Golder Associates in reaching its conclusions.
[65] One further noise concern was raised by Mr. Kinart for Crupi, being the potential for City noise by-law violations and related enforcement due to the by-law’s reference to out-dated MECP NPC-205 Guidelines instead of current NPC-300 Guidelines, which include Class IV development designations. Evidence was submitted by Mr. Penton and the City that the City is in the process of updating its noise by-law to include reference to NPC-300 Guidelines and Class 4 designations. The Tribunal accepts the evidence of Mr. Penton that prosecution is unlikely in the context of the City providing a Class 4 designation to the proposed development and updating its noise by-law to recognize the revised limits applicable to same. He noted a breach of the by-law would require the mobile crushing operations at 70 Passmore Avenue to continue in its current location or the proposed concrete batch plant to be in place there and for the City to adhere to out- dated NPC-205 Class 1 limits versus NPC-300 Class IV limits for noise, in face of providing the Subject Lands a Class IV designation. The Tribunal further notes that 26 PL170028 PL170626
noise by-law prosecutions are relatively rare, generally without significant fines and generally do not provide for mitigation measures or operational changes as relief. Further, the Tribunal finds there was no evidence provided of potential noise by-law violations by Crupi even within the existing by-law context.
[66] There was no authority provided to the Tribunal requiring that a proposed development be free of any potential compatibility concerns for the Tribunal to authorize same. Compatibility is an issue of sufficient mitigation in the context of the existing and planned Crupi operations along Passmore Avenue and the proposed development. Given the extensive environmental studies undertaken by Global Fortune and peer reviewed by the City, which have not been impugned in this proceeding and which underlie the substantial Agreed Statement of Facts, and the absence of further suggested, evidenced or authorized mitigation measures, the Tribunal accepts that sufficient mitigation measures are secured in ZBA No. 2. The Tribunal further accepts that the secured mitigation is sufficient to meet the evidenced concerns of Crupi, the MECP D-6 and NPC-300 Guidelines and the related provisions of the PPS, GGH, OP, OPA 321 and SASP 395 No. 2 as outlined above.
[67] Returning briefly to the evidence of Mr. McDermott in Exhibit 39, Tab M, being a chart that indicates approval of high-density residential uses near industry endangering employment areas and destabilizing Crupi industrial operations, the Tribunal was provided no evidence to substantiate this theory in the context. To the contrary, the evidence at the hearing demonstrated existing residential and sensitive uses and permissions for same have not impacted the ability of Crupi operations to function or expand with necessary MECP approvals, or a new concrete batching plant of Metrocon from being approved for 65 Passmore Avenue. Further, there was evidence that Crupi required an amended ECA at 83-85 Passmore Avenue in response to complaints from the Mon Sheong residents on McNicoll Avenue but that mitigation and the alteration to the ECA was also a result of regulatory and ECA compliance issues for the ongoing operations. 27 PL170028 PL170626
PUBLIC STREET A
[68] OPA 321 amends Schedule 2 to the City OP, the Designation of Planned but Unbuilt Roads, to include the new Street A and B above and below the Milliken GO Station respectively. SASP 395 No. 2 added further policy in this regard:
Two new streets, each having a right-of-way of 20-23 metres, are required to be provided east of Redlea Avenue to frame the north and south sides of the Milliken Go Station site, as generally shown on the map accompanying this policy. Development approvals will secure the required street rights-of-way on affected lands, including lands abutting the Milliken GO Station site as required.
Further, the SRUD Guidelines provide the public streets shall be provided where appropriate in the opinion of City Planning and in accordance with the City’s Development and Infrastructure and Policy Standards (“DIPS”) and further outline their design, including sidewalks, street trees, other streetscape amenities, dedicated cycling lanes and vehicular lanes with the potential for buses. The ZBA was drafted and approved on these bases, to secure a public street above the Milliken GO Station, reflecting the depicted Street A, signalization of same and other area traffic improvements per the traffic impact assessments underlying the approval. Notably, Global Fortune did not appeal OPA 321 or SASP 395 No. 2 in regard to the requirement for developers to secure Street A rights-of-way, including from Metrolinx as needed. The Tribunal also accepts the use of the word street connotes its intended public nature.
[69] The Tribunal is satisfied that it has been the City’s consistent intention to require Street A to be a public street and that Global Fortune’s proposal included the intention to obtain the necessary lands for same and convey them to the City for this purpose. Any reference to the incremental provision of lands for the identified streets in the Study relate to unknown proposals at the time of the Study and other potential developments in the SRRA area. The Tribunal is also satisfied upon the evidence of Mr. Filipuzzi and Mr. Abraham that Street A is necessary as the primary access to the proposed development, the integrated Splendid China Mall and the Milliken Go Station. The existing 10 m private Metrolinx driveway to the Milliken GO Station as depicted in 28 PL170028 PL170626
Exhibit 10 is not sufficient to serve as the primary access to the proposed development and other entities, was never proposed as such by Global Fortune and cannot meet the applicable City policy standards for the contemplated development access.
[70] It was only at the hearing that Global Fortune raised a serious challenge to the requirement to provide the necessary lands in a form that the City could assume a 20- 23 m right-of-way as a public street. There was a vague suggestion by Mr. Richardson that the 10 m private Metrolinx driveway is sufficient to service the development, Splendid China Mall and the Milliken GO Station, but it was not supported by underlying traffic impact or peer review analysis or supported by the other traffic experts. The Tribunal prefers the evidence of Mr. Filipuzzi and Mr. Abraham for this reason.
[71] The Global Fortune challenge ended with its closing submission that it is not concerned with the City’s desire to assume a right-of-way as a public street, but only with the word “public” in the ZBA given its lack of authority to create same. It is unclear to the Tribunal what purpose the removal of the word “public” would serve if Global Fortune still must obtain and provide a 20-23 m right-of-way for the development and it does not object to the City assuming same as a public street. Global Fortune may contemplate obtaining lesser right-of-way land rights but that would then require the City to obtain rights required for its assumption of the required 20-23 m right-of-way as a public street. This was not the intent of OPA 321, SASP 395 No. 2 or the ZBA, all of which were predicated upon the Global Fortune proposal and studies supporting the provision of the required right-of-way. That is not a burden the Tribunal is prepared to shift to the City given its legitimate policy intent and given the necessity of the required elements of Street A to service the development, Splendid China Mall and the Milliken GO Station.
[72] Mr. Tinker testified for Global Fortune that the ZBA H provision requiring a public street was inappropriate for Global Fortune could not provide a public street. Mr. Richardson also conveyed this opinion and he and Mr. Tinker agreed that if the public requirement was not appropriate under an H provision due to lack of ownership of or 29 PL170028 PL170626
rights to the necessary lands, that even the requirement for provision of 20-23 m right- of-way would be inappropriate under an H provision or as a condition approval due to lack of Global Fortune control of the necessary lands and lack of authority to provide those lands as a public street. Mr. Tinker also suggested newly at the hearing that Global Fortune could provide up to 10 m from the Subject Lands for a portion of any public Street A. Mr. Tinker however admitted in cross-examination that a further zoning by-law amendment would be required should Global Fortune provide 10 m to the City from the southern flank of the Subject Lands, reducing the Tower B setback from Street A to zero. The City was unequivocal through its witnesses and submissions that a zero setback was unacceptable as was the provision of only part of the lands for the intended 20-23 m right-of-way, which would shift the burden for acquisition of the remaining required lands to the City.
[73] Mr. McDermott testified that any approval condition for the provision of a road which was dependent upon the consent of a non-party landowner was inappropriate from a planning perspective. Crupi repeated this assertion in its closing arguments and like Global Fortune, submitted authorities in support of its assertion.
[74] The Tribunal acknowledges it is trite law that neither Global Fortune nor the Tribunal can compel the City to assume a public street upon it obtaining lands for same. That legal principle however does not detract from the authority for the City to impose the requirement for provision of the lands necessary for a public street as a condition of approval through an H provision or otherwise, especially when supported by OPA 321 and SASP 395 No. 2.
[75] Crupi submitted specifically that it would be error of law for the Tribunal to approve instruments that include a condition dependent upon the consent of a non-party for access to the proposed development. In this regard, Crupi submitted Eastman v. Dewdney Mountain Farms Ltd. [2017] OJ No. 5054, 2017 ONSC 5749, 2017 CarswellOnt 15193 (“Dewdney”), a decision of Divisional Court on appeal from the Ontario Municipal Board. The Tribunal does not accept this case stands for the principle 30 PL170028 PL170626
asserted by Crupi. The context in the cited case involved the need to access and use lands of multiple private land owners for purposes of installing noise mitigation infrastructure along an aggregate haul route. There was no evidence those property owners had been provided information in regard to the unspecified noise mitigation berms and other measures or that they were in active discussions to provide consent. This is not a comparable context of the Global Fortune proposal and related instruments before the Tribunal, in which the proponent, the City and Metrolinx are well aware of the exact proposed Street A, from which all will benefit, and there is some evidence of ongoing discussions in that regard.
[76] Further, in the Order arising from the Motion for Leave to Appeal in Dewdney, the Divisional Court stated the relevant question for the panel on appeal as follows: “Did the Board err in law by having no evidence before it that the proposed mitigation measures for noise that it relied upon could ever be feasible and/or implemented and that the legal authority to do so exists?”. The Divisional Court panel then re-framed the question on appeal as: “whether the OMB erred in proposing noise mitigation measures without evidence supporting their feasibility.” The determination on that issue in favour of the Appellant follows the Court’s determination that the condition was not accompanied by any evidence regarding whether private land owners would consider providing access for the installation of undetermined mitigation measures and that the Board ordered an agreement for access between “relevant parties” which would not be understood to include non-parties to the matter before the Board and the Court. It appears therefore that it was the lack of evidence of feasibility and the failure of the Board to address potential and correct parties to a necessary agreement as the basis of the error and resulting order granting the appeal from the condition imposed by the Board. The case does not stand for a general proposition that any condition engaging the land interests of non-parties is without authority of a municipal approval authority or the Tribunal, under an H provision or otherwise. Finally, it is also notable that Crupi did not list access as an issue in the PO and that access for the Global Fortune development has no demonstrable impact on nearby Crupi operations or lands. 31 PL170028 PL170626
[77] In the re-hearing of Dewdney by Tribunal Member Swinkin, he agreed with the Appellant that the zoning approval for the desired aggregate development would be premature without clear evidence as to the proposed noise mitigation measures and their placement and given that same had not been thoroughly researched in view of the project and potential impacts on residents abutting the road for truck traffic at the time of the hearing. In the present case, the requirements of Street A are clear and engage one informed non-party property owner in the process of securing the necessary lands, with no appeal of same by the proponent or Metrolinx regarding that OPA 321 and SASP 395 No. 2 plan and some evidence of ongoing discussions regarding same.
[78] On the basis of these distinctions and findings, the Tribunal prefers the approach of Tribunal Member Jacobs in Blue Water Ranch Developments Inc., Re, 2015 CarswellOnt 1630, which while issued prior to the Dewdney decision is not rendered unlawful by it. In that case, a future road was required to be provided which rested upon land rights of a non-party, to serve a 468 unit residential development of two towers of 22 and 19 storeys in height and a third six storey independent living facility. The City in that case submitted the applications for a zoning by-law amendment and site plan approval were premature because the required land rights for the future road had not been secured. The Board determined there was some evidence of positive negotiations for the necessary access rights and that the provision of the road was a matter best left for implementation, leaving the Board to proceed to assess the planning merits of the proposal and instruments. In that regard, the Board determined that while the road did depend on agreement of a non-party the proposal could be approved on its planning merits. Accordingly, the Board withheld its order approving the proposal and instruments pending resolution of the road access and made its approval conditional as follows: “The Board will withhold its order on both the zoning by-law amendment and site plan pending the following: … 3. The parties advising the Board that the appropriate easements to allow development of the future new road have been secured.” While we too have limited evidence of the Metrolinx negotiations in our case, the Tribunal notes that Member Jacobs gave little weight to the negotiation evidence in the case above due to those persons not being present at the hearing and proceeded with approval on 32 PL170028 PL170626
the planning merits regardless.
[79] This leaves the question however of whether an H provision is an appropriate approval mechanism to secure the lands necessary for a public street when it is to be placed in whole or in part upon land owned by a non-party to the matter before the municipal approval authority and the Tribunal on appeal. In this regard, Global Fortune cited 2206211 Ont. Inc. v. Pickering (City), 2016 CarswellOnt 12724. In that case, Tribunal Member Jackson examined an H provision attached to a zoning by-law amendment for a commercial plaza which required the applicant to design, construct and pay for a road on City of Pickering property which was not necessary to service the proposed development. The City of Pickering submitted that it could impose that requirement under an H provision for it had official policies to provide for same and that the road was required for site service. The proponent, which already enjoyed access to its lands, was willing to provide an easement over its lands to contribute to a desired road but not to build the public road on City of Pickering lands for purposes of the City alone. Member Jackson found that there was no evidence the public road was needed to provide access to the proposed development for it enjoyed sufficient alternative access. She found the H provision inappropriate for this reason.
[80] In the present case, there is a preponderance of evidence that Street A is necessary to service the proposed development as well as the integrated Splendid China Mall, which have no sufficient alternative access via the existing private Metrolinx driveway or otherwise. Street A is also not required for general City purposes and is not to be on City lands, available to the City to develop on its own. Accordingly, the bases for the removal of the H provision by Member Jackson as an improper use of an H provision do not exist in the present case.
[81] The Tribunal finds that the City is authorized and justified in this case to require the provision of the lands necessary to create a public Street A, under an H provision or otherwise in the ZBA. It further finds that the requirement is supported not only by OPA 321 and SASP 395 No. 2, which was not appealed by Global Fortune or Metrolinx, but 33 PL170028 PL170626
also by PPS and GGH policies relating to integrated planning and development of fulsome access to major transit services.
CONCLUSION
[82] The Tribunal is satisfied that the proposed development on the Subject Lands addresses all evidenced needs of compatibility with existing and planned Crupi operations through undisputed studies, an Agreed Statement of Facts and related mitigation measures secured through ZBA No. 2 performance standards. It is further satisfied that the City is authorized and justified to require provision of a 20-23 m right- of-way by the proponent in a form to allow the City to assume same as a public street as indicated in OPA 321, SASP 395 No. 2 and the SRUD Guidelines. Finally, the Tribunal is satisfied that the proposed development, OPA 321 and the ZBA No. 2 as amended below are consistent with the PPS, conform to the GGH and OP and otherwise represent good planning upon extensive consultation with all stakeholders, including Metrolinx and Crupi, and the public.
[83] Upon the submissions of the Parties and Participants and the planning, urban design, compatibility and transportation and traffic opinion evidence provided, the Tribunal dismisses the Crupi OPA 321 and ZBA appeals and grants the ZBA appeal of Global Fortune in part, allowing amendments to the ZBA per ZBA No. 2 but with the inclusion of the word “public” in performance standards 557 and 2385 as they pertain to the public Street A clearly identified in OPA 321, SASP 395 No. 2 and the SRUD Guidelines.
[84] The Order of the Tribunal in regard to OPA 321 will be withheld pending the disposition in the Valleymede appeal. The Order in regard to the ZBA will be withheld for one year to allow Global Fortune to secure the necessary lands for the 20-23 m right-of-way from the Redlea Avenue extension to the north side of the Milliken GO Station and Splendid China Mall and to provide them to the City for purposes of its desired assumption of the right-of-way as a public street. 34 PL170028 PL170626
[85] The Tribunal is satisfied that the proposed development, OPA 321 and ZBA No. 2 as amended above are consistent with the PPS, conform to the GGH and overall OP policies and have regard to the matters of provincial interest in s. 2 of the Act. The Tribunal is further satisfied that the proposed development, OPA 321 and ZBA No. 2 as amended above represent good planning in providing for mixed use development and intensification along an Avenue and near higher order transit, with public access and related traffic improvements for the proposed development, Splendid China Mall and the Milliken GO Station, and in comprehensively addressing compatibility of the new high- density residential and included office and retail uses with existing and planned industrial uses to the southeast.
[86] Although incompatibility was the basis of the Crupi OPA 321 and ZBA appeals, Crupi did not demonstrate adverse impacts resulting from the proposed development and instruments upon its existing and planned operations along Passmore Avenue. Crupi did not propose further mitigation conditions to those found in ZBA No. 2 as amended but only a ban on such development in the SRRA. In the alternative, Crupi suggested agreements were required between Global Fortune and itself for incompatibility impacts arising. Crupi however did not demonstrate the Tribunal has authority to impose private agreements or specify any potential terms that may be within Tribunal jurisdiction to impose as conditions of approval. The Tribunal acknowledges that the Ministry of Environment, Conservation and Parks (“MECP”) D-6 Guideline suggests agreements between parties facing land use compatibility issues in relation to intensification and infill in Mixed Use Areas but it is not a legal requirement and the D-6 Guideline does not specify any universal terms for such agreements regarding mitigation or indemnity. The Tribunal further acknowledges that Crupi wished to submit examples of agreements relating to other developments at the hearing. The Tribunal did not permit submission of those agreements for they did not pertain to the context and compatibility issues at hand and they were not indicated in any witness statements or the detailed Procedural Order (“PO”) for the hearing. The PO was predicated on being forthright in regard to any comparative examples regarding compatibility to ensure relevance and materiality and to allow other Parties to prepare and respond accordingly. 35 PL170028 PL170626
[87] The Tribunal is also satisfied that Street A, as identified in OPA 321, SASP 395 No. 2 and the SRUD Guidelines is the primary access for not only the Subject Lands and proposed development, but also for Splendid China Mall, which will lose its Steeles Avenue East access upon implementation of the planned Steeles Avenue East grade separation, and the Milliken GO Station. The City’s intention to require a 20-23 m right- of-way be provided by Global Fortune in a form that would allow the City to assume it as a public street has been consistent throughout OPA 321, SASP 395 No. 2, the SRUD Guidelines, the ZBA and the iterations of the Global Fortune development plan. The Tribunal finds the City has legal authority to impose this development requirement through its planning policy and instruments in the context that it is demonstrably necessary for the development, that it is feasible to meet the requirement and that it is supported by provincial policy regarding integrated planning and accessible transit services.
[88] Although Crupi raised an objection to the ZBA requirement for a public street for its creation is dependent upon lands owned by a non-party to the proceedings (Metrolinx) and Global Fortune raised objection to the requirement of “public” being included in the H provision and otherwise in the ZBA for its lack of authority to create the public street, the Tribunal was not satisfied with the authorities submitted by these Parties in support of their positions. The Tribunal does not accept that there is a blanket legal prohibition on conditions of approval engaging the land interests of non-parties or of the inclusion of same in an H provision or condition related to an approval, when the requirement is supported by valid OP policy, guidelines and instruments as well as PPS and GGH provisions. While it is trite law that only the City can assume a right-of-way as a public street, there is no legal impediment to the City requiring the conveyance of land for that purpose as a condition of approval or as subject of an H provision in the ZBA.
[89] The Tribunal finds there is some evidence of ongoing discussions between Global Fortune and the City with Metrolinx in regard to the provision of some or all of the lands necessary for the clearly identified and necessary Street A above the Milliken GO Station, directly to the south of the proposed development. Accordingly, the Tribunal will 36 PL170028 PL170626
provide time for those discussions to continue after it has assessed and otherwise approved OPA 321 and ZBA No. 2 as amended on their planning merits.
[90] Finally, the Tribunal is satisfied the traffic, public safety and other concerns of the Participants have been satisfactorily addressed by OPA 321 and ZBA No. 2 as amended and specifically by the requirement in ZBA No. 2 to provide for speed bumps within the Heathwood neighbourhood and for substantial support for the improvement of community services in the Heathwood area under the ZBA No. 2 s. 37 agreement provisions.
INTERIM ORDER
[91] The D. Crupi & Sons Limited appeal of OPA 321 is dismissed and the amendment to OPA 321 is approved in principle subject to the disposition in the appeal of Valleymede in Phase II of these proceedings.
[92] The D. Crupi & Sons Limited appeal of By-law No. 477-2017 of the City of Toronto is dismissed.
[93] The Global Fortune appeal of By-law No. 477-2017 of the City of Toronto is allowed in part. The Tribunal approves in principle the ZBA substantially in accordance with Exhibit 27, attached to this Decision and Order as Attachment 1, and further amended as follows:
• Performance Standard 2385 2.A.(b) shall read: The design, construction and financing of all or a portion of the new east-west public street extending from Redlea Avenue and terminating at the GO/Metrolinx station to the satisfaction of the Chief Planner and Executive Director, City Planning Division and Chief Engineer and Executive Director of Engineering and Construction Services. 37 PL170028 PL170626
• Performance Standard 537(ii)(a) shall read: Satisfactory arrangements shall be made for the design, construction and financing of all or a portion of an east-west public street to frame the north side of Milliken GO Station extending east from Redlea Avenue and terminating at the GO Metrolinx Station having a 20 to 23 metre right of way, as generally shown on the Map 30 accompanying new Site and Area Specific Policy No. 395 of Official Plan Amendment No. 321, to the satisfaction of the City Solicitor, Chief Planner and Executive Director, City Planning Division and the Executive Director, Engineering and Construction Services; and City of Toronto By-law No. 477-2017.
In all other respects, the Global Fortune appeal of By-law No. 477-2017 is dismissed.
[94] The Tribunal will withhold its Order on approval of Zoning By-law No. 477, as amended, pending the following:
1. The City and Global Fortune resolving any technical revisions to the zoning by-law amendment and providing the Tribunal the zoning by-law amendment in final form for its approval as to form and content; and
2. The City and Global Fortune advising the Tribunal that the necessary lands for Street A identified in OPA 321 and the ZBA, as amended by this Order, have been secured to be transferred to the City for its assumption of Street A as a public street.
3. The timeframe for issuance of the Order shall be one year. Should the parties have difficulty in meeting the conditions for the ZBA approval noted above within this timeframe, the Tribunal may be spoken to by way of teleconference at a time convenient to the Tribunal and to the Parties.
38 PL170028 PL170626
[95] This Member is seized.
“C.J. Bryson”
C.J. BRYSON MEMBER
If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.
Local Planning Appeal Tribunal A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248 ATTACHMENT 1
1
Authority: Planning and Growth Management ColllJllitteeItem PG19 .4, adopted as amended, by Cityof Toronto Council on April 26, 27 and 28, 2017
CITY OF TORONTO BY-LAW 477-2017
To amend former Cityof Scarborough Employment DistrictsZoning By-law 24982, as amended, (MillikenEmployment District) with respect to the lands municipally known as 4665 Steeles Avenue East.
Whereas authority is given to Council by Section 34 of the Planning Act, RS.O. 1990, c. P.13, as amended, to pass this By-law; and
Whereas Council of the Cityof Toronto has provided adequate informationto the public and has held at least one public meeting in accordance withthe Planning Act; and
Whereas the Ontario Municipal Board, pursuant to its Orders issuedon January 22, 2008 and on May 26, 2009, approvedBy-law 239-2010(0MB) being a By-law "to amend the former City of Scarborough EmploymentDistricts Zoning By-law 24982, as amended, with respect to the lands municipally knownas 4665 Steele� Avenue East"; and
Whereas pursuant to Section 37 of the Planning Act, the Council of a municipalitymay in a By-law passed under Section 34 of the Planning Act, authorize increases in the height and density of development beyond those otherwise permitted by the by-law in returnfor the provision of such facilities, services and matters as are set out in the By-law; and
Whereas subsection 37(3) of the Planning Act provides that, where an Owner of land elects to provide facilities,services or matters in returnfor an increase in the height or densityof development, the municipalitymay require th� owner to enter into one or more agreements with the municipalitydealing with the facilities,services and matters; and
Whereas the Owner of the lands hereinafter referredto has elected to provide the facilities, services and maters, as hereinafter set forth; and
Whereas the increase in height and density permittedhereunder, beyond those otherwise permitted in the aforesaid lands by By-law 24982, as amended, are to be permittedin returnfor the provision of the facilities,services and matters set out in the By-law and are to be secured by one or more agreements between the owner of such lands and the City of Toronto; and
Whereas Council has required the Owner of the aforesaid lands to enter into one or more agreementsdealing with certainfacilities, services and matters in return forthe increases in height and densityin connection with the aforesaidlands as permitted in this By-law;
The Council of the Cityof Toronto enacts: l. SCHEDULE 'A' of the Employment Districts Zoning By-law 24982 (Milliken Employment District),is amended by deleting the existingzoning and replacing it with the followingSchedule '1' so that the amended zoning shall read as follows: ^
•—"[Deleted; 3
City of Toronto By-law 477-2017 Dateteds 1NTP.NSTTY OF TTSK 868 The gross floor area of all permitted uses in the CommerciaI/ResideutialZone (CR), shall not exceed 96 900 square metres, excluding the gross floor area of jE3K3ose3 siCTse Iba'3?sa- hagcQn^; -^ Deleted; Encloied Noise BufTcr BBlcpaies 869 The gross floor area of all residential uses within a mixed use building shall not exceed 61 000 square metres, excluding the gross floor area of enclosed noise bujRF&r balconies; 870 The gross floor area of all retail uses within mixed use buildings shall not exceed 12 900 square metres; 871 A minimum gross floor area of,2,Op.O square metres shall be prpyidedas office -•€ Deleted! 3 D uses within the mixed use building in Phase I (first building permit); 872 Maximum 793 dwelling uuits as follows: (i) On lands identified as Phase 1 ^3l^g_'B')_qn_Scl?dyl_e '2', /.--<" Deleted: Tower D maximum 249 dwelling units; (ii) On lands identified as Phase 2 (gy3l^ag.'C')_on,Schedyle_'^_ ../-<' Deleted: Tower 3 maximum 386 dwelling units; -,--r Deleted; Tower ~) (iii) On lands identified as Phase 3 (^'<3J (iv) Notwithstanding 872(i) to (iii) the maximum number of dwelling units for each Phase may be increased by 20 percent provided the maximum number of dweUiag units on the Jot identified on Schedule '1' does not -c Deleted; L D exceed 793 dweUmg umts; SETBACKS 1198 The minimum setbacks and stepbacks from the lot Une(s) to the main wall(s) of any building(s) and minimum separation distances between JbnsN'isEasshaH be Deleted; buitdingsaad additional atepbacly ftom the main iYnll(s) of any buitding(s) to tlio main wnll(s) of any the minimum distance in metres specified by the numbers on attached Schedule buildfBg(s)andmiQirnums;paialiondi5Uncesbemeca '2'; buildings sb all 1199 Notwithstanding CLAUSE V - GENERAL PROVISIONS, Sub-Clause 5 (Main Wall Projections), the following building elements and stmctures may encroach into a required minimum building setback from the main wall as follows: (i) Awnings, canopies, porches, stoops, lighting fixtures, ornamental elements, trellises, comices, window sills, stairs, wheelchair ramps, balustrades, landscape features: a maximum projection of 3.0 metres; 5 '1 Deleted: 16 City of Toronto By-law 477-2017 X ResiffllenHsul: I TvBe'0'?.02dmlgsoace_aTtd.l Type'C'.loadins space are to._be. ^wded.m;Rhase l_IB_ai^Eg_'3ri. and ITvpe^B'loading space .is,to_beDrovided,ia_ jPhas3_3_(Byi?ag "A'diel^adins needs of flie residential use withmPhase 2 fBuildraa^C'") is to be scared with the retail loadins supplv. of Phase 2, which may be provided off-site and shared_\vith the retail uses at 4675 Steeles Avenue East ^L 0'fs!2S:.il''TO8'IB''<£aicl2Tv£)3_'C' iiosdmg spac®j@"e required for the office comssseBL 'RNdijEaagiiSjDTO^dsd ofT-siSs andsnaied with the retail uses at 4675 Ssseies A'yfiBEs Sast, PARKTNC 1671 The following provisions of CLAUSE V - GENERAL PROVISIONS are not applicable Sub-CIauses: 6. (Underground Structwes); 7.1.1. (Application of Parking Rates-Location); 7.2. (Table of Required Parking Rates); and 7.4.1. (Height (above grade Parking Structures)): Required Vehicle Parking Rates Except as otherwise specifically regulated by the By-law, parking spaces shall be provided in accordance with the parking rates set out in^^&misace Sastcbrd Deleted: the follow bg: 3672. 1672 ^^itnum"s25E:d3 parking spaces^r dwelling^aa^ shall bejiravidedbassdon < Deleted: fee felloT^asiE sHtes ssr^e r.^Be&fivs vssS. twses: Deleted; 1/0 V'f Deleted! per ,-^—J]l_r—P:»!? spaces fer sscfl ibai^or-^TOS^Jii? ^iaifc (^ DcFeted! unit aati ©-8 ssa?^ fe esu^a _v3l__Required visitor parking spaces and parking spaces for non^residential _....-< Deleted;? useEymay.J^S31Me<^.. —(Dfitcted: \~-~(0etcted;^ 1673 Retail (including restaurants): Minimum 3.0 parking spaces per 100 square \^ '(Deleted!; metres of gross floor area; X Peletedi-s Im) 1674 Offices: Minimum 1^ parking spaces per 100 square metres of gross floor^ -r Deleted; 5 D area; 1675 Bicycle parking spaces shall not be provided within a dwelling unit or on a "balcony associated thereto, or in a storage locker; 1676 If the calculation of the minimum bicycle parking spaces for all uses results in a fraction of a bicycle parking space being required, the number of required bicycle parking spaces must be rounded up to the next whole number; 1677 Meaning ofLong-Temi Bicycle Parking and Short-Term Bicycle Parking: (i) Long-term bicycle parking spaces are for use by the occupants ortenants 1. .. _, „,_,. '(Deleted; 18 City of Toronto By-law 477-2017 1682 A required "long-term" bicycle parking space may be located: (i) on the first storey of the building; (ii) on the second storey of the building; .{iu^i or lev&Is of fee builjElin£b'eIow-gIS!US.d commencbis with_tl? first leveL below-srouBd and.movms: down.Jn^ne level increments when at least_5Q%. of file area of t'hat level is occupied by bicxdeBartdhs sp-aces, until_atL required bicycle wuikins spaces have been provided.. Deleted; the first level of tjhe building below-ground; and Deleted; Bicycle Parking Space Rates Short-Term Bicycle Parking Long-Term Bicycle Parking Spaces Use Spaces Office the minimum number ofshort- the minimum number of long-term term bicycle parking spaces to be bicycle parking spaces to be provided provided is 3 plus 0.15 bicycle is 0.13 for each 100 square metres of parking spaces for each interior floor area used for an office 100 square metres of interior floor area used for an office ••-^DeIetetIsasitaaaiunBamiSsction&'eak (Hext Page) Bicycle .Parking Space Rates Short-Tenn Bicycle Parking Long-Tenn Bicycle Parking Spaces Use Spaces Personal the minimum number of short- the minimum number of long-term Service Shop, term bicycle parking spaces to be bicycle parking spaces to be provided Service Shops provided is 3 plus 0.25 bicycle is 0.13 for each 100 square metres of parking spaces for each interior floor area used for a personal 100 square metres of interior floor services shop^id servacs slipp area used for a personal service s^ss as& ssavacsi shop, -(DeictedsS Restaurant the minimum number of short- the minimum number of long-term term bicycle parking spaces to be bicycle parking spaces to be provided provided is 3 plus 0.25 bicycle is 0.13 for each 100 square metres of parking spaces for each interior floor area used for a 100 square metres of interior floor restaurant area used for a restaurant {Deleted; 20 City of Toronto By-law 477-2017 D 1754 Unenclosed structures and equipment providing safety or wind protection to rooftop amenity space may exceed the permittsd maximum height for that building by 3.0 metres, if the structures are no closer than 2,0 metres from the interior face of any main wall, ^ Deleted;; 3 1755 A parapet wall may exceed the permitted maximum height for a building by 2.0 metre^ (^Deleted;; 1 MTSCfXT-ANEOlTS "\ 2079 All th? provisions of this By-law shall apply collectively to the^ri C_^_ s?Il?;^d_!-sft^ notwithstanding its future division into two or more parcels; 2080 Amenity space for each mixed use building with 20 or more dwelling units shall be provided at a minimum rate of 4 metres squared for each dwelling unit, ofwhich: (i) a minimum of 2 metres squared for each dwelling unit is indoor' amenity space; (ii) a minimum of 40 metres squared is outdoor amenity space in a location adjoining or directly accessible to an indoor amenity space; and (iii) a maximum of 25 percent of the outdoor component may be a green roo(. Deleted;; D ^---(Deieted! uuf*»Bim—»«Section Bvea^ (NeiA t:Sge}iuiBKttiuaiu™u) 2081 Outdoor amenity space shall be accessible to all residents within the mixed use buildings upon completion of the development ^ Deleted;; D iXXX. Outdoor amenihf space nrovided above the 3rllstorcv on Buildine •C' shall be) 'screened alone its east and south Derimeterbv_a_noise_wall_with.a minimuml iheiehl of 4.2 metres; 2082 The separation distance between the main walls of the building(s) above ~^ ^^tjireys shall be a^mimum of 25 metres; .- .-.--c Deleted; 8 2083 The maximum floor plate area of each storey above^ storeys shallbe750 metres ^/--c Deleted; 8 ^ squared, including all built area within the mixed use building but excluding the Deleted?; ~) floor area of any enclosed noise buffer balconies^ • , ,„.---<_ 2084 The minimum height of the first storey, measured between the floor of the first storey and the ceiling of the first storey, shall be 4.5 metre^ -f Deleted:; D SECTTON 37 2385 1. Pursuant to Section 37 of the P/c?nn(ng^(c/t and subject to compliance with this By-law, ths increase in height and density of development is permitted in return for the provision by the owner, at the owner's expense, of the following facilities, services and matters which are secured by one or more agreements pursuant to Section 37(3) of the Planning Act that are in a form and registered 11 ..--•"(Deleted! 22 City of Toronto By-law 477-2017 registration of the Section 37 Agreement to the date of payment, towards the expansion of the L'Amoreaux Community Centre; 3^_The following matters^s to be secured in the Section 37 Agreement ^ajegal convenience to support development^ -'C _ Oeleted; A. Prior to the issuance ofiihe first a'bove-srade bmldine permit. for a btrildins or sfruatureJnPijase 1. the Owner shall enter into.a financially secured Asreemeat to file satisfecriQn of fee Chief Ensineer and Executive Director ofEngmeerins and .Construction Semc&s to include t'he fQUowins. --< Deleted:: (a) Construction of&e^tenMonofRedlea_Avenue_to^ Deleted! The dtsign, coastmction and fmanciDg of Passmore Avenue and all services to fhe development^ property line to ^he satisfaction oftheChrefEnaineer and Executive Director ofETisineering.& Construction. Services;. ..-< Deleted:; _The design, construction and financing of all or a portion of a new east-west^reet^xtendmjgfromRedlea^A.venue Deleted: road terminating at the GO/Metrolinx station to the satisfaction of the Chief Planner and Executive Director, City Planning Division and Chief Engineer and Executive Director of Engineering and Construption Services; (d Constniction ofiRtets.ejcAo^mGilQiy_eiiiecL^_K.auii:edjtJLttLe_. (Moved (insertion) [11 .f ££.dlea.Avejiu^anJ_Sjte.eI^Avexffl!^BasUTitpjBi3&tioa.m^^ ^~C Deleted: I ma.dejEoja^ojnjiiQd^JwB^e^AmLlanes^oi^^^^ Deleted: onthenorthboufldapproacli ian(Lo^^shac^Jfln' ( .fet Provide financial security and pay ensmeerine and inspection fees for.the above municipal lafrastmcture improvements and make necessary arranaements with Ensineerins and Constiuction Services to can-v out: the 'work; ft) . _ The Owner must orovide a Letter of Credit in tlie_amoynt of. $400,OOQ_for_tiieT>roECSedjraffic. control signals, at the_ intersection ofRedlea Avenue at Passmore Avenue and Redlea Avenue at the GO Northerlv Site Driveway: 1 ^ ---'[Deleted: 24 City of Toronto By-law 477-2017 D. The servicing report is to include the groundwater fmdinss and confinn whether or not ffie receiving sewer system has fee capacity, .(Deleted: -r to accommodate groundwater and the storm/santtaT^fIows , Deleted: T anticipated to be generated by the site; /£ -'//> Deleted; K—^Thejw?yisl '(Deleted! 26 City of Toronto By-law 477-2017 (b) The Owner entering into an agreement pursuant to Section 37 of the Planning Act to the satisfaction of the Chief Planner and Bxecutlve Director, City Planning Division, and the City Solicitor, such agreement to be registered on title to the lands to secure the benefits identified in Performance Standard 2385. Enacted and passed on April 28,2017 -(Deteted;^ 3 Francis Nunziata, Uli S. Watkiss, Speaker City Clerk (Seal of the City) /-/-Cpetcted! t ... [Ill) "Codetcd; 3 17 ...... -cDeleted: 28 City ofToronto By-law 477-2017 ! Deleted; Schedule T ^ STEEIES AVENUE EAST BaaNia>°_A ?3i.ase3 s. EAj ^t Bsziidiigs PiQEseJ. tdlNwmi 4665 Steeeles Avenue East Zoning By-Law Amendment File if 13 273308 ESC 39 OZ Mil&catai.'sy'RaiiOwsl'B^w Area Affected By This Sy-Lsw NmiflSca'? ^ S3ft5n7 ATTACHMENT 2 LOCAL PLANNING APPEAL TRI.BUNAL, L.P.A.T. Case Nos. PL170028; PL170626 APPEALS OF CITY OF TORONTO OFFICIAL PLAN AMENDMENT NO. 321 AND ZONING BY-LAW NO. 477-2017 AIR QUALITYAND NOISE EXPERTS MEETING August 3, 2018 In Attendance: • Ms. Bridget Mills, P .Eng., BCX Environmental Consultants ("BCX"), air quality expert for D. Crupi & Sons Ltd. (11 Crupi"). • Mr. Corey Kinart, MBA, P.Eng., Howe Gastmeier Chapnik Ltd. (11HGC"), noise expert for Crupi. • Mr. Nigel Taylor, M.Sc., EP, Novus Environmental Inc. ("Novus"), air quality expert for Global Fortune Real Estate Development Corporation ("Global Fortune"). • Mr. Scott Penton, P.Eng., Nevus, noise expert for Global Fortune. Summaryof Meeting: The experts discussed technical issues with the air quality and noise modelling, and comments from HGC and BCX arising from their Reply Witness Statements. Updated noise modelling was provided to HGC on July 13 and July 31, 2018, and updated air quality modelling was provided to BCX on July 16 and July 27, 2018 for their review. Additional conference calls were held on July 26 and August 2, 2018. Agreed Statement of Facts • With respect to Ministry of the Environment, Conservationand Parks ("MECP") Guideline D-6, Novus and BCX/HGC are in agreement that Section 4.10 of the Guidelin� applies. From an air quality and noise perspective, development may occur within the Recommended Minimum· Separation Distances, provided that the provisions of Section 4.10 are met. • The noise experts agree that the sound levels of existing Crupi operations in the area, and future operations currently contemplated by Crupi for 70 Passmore, can meet the applicable MECP guideline limits at the proposed development, with the noise control measures proposed for the development. • The MECP Publication NPC-300 Class 4 noise guideline limits apply to the proposed development. • Transportation noise can be addressed at the time of Site Plan Approval forthe proposed development. • MECP air quality standards for conventional air quality contaminants (e.g., oxides of nitrogen, suspended particulate matter, and other chemicals) must be met at the property lines of the industries. Thusj the outstanding air quality contaminants of concern for the proposed development are the nuisance contaminants of fugitive odour and fugitive dust. » The experts agree that proposed development at the 4665 Steeles property is feasible from an air quality and noise perspective with appropriate air and noise mitigation measures to minimize the potential for complaints and impact of any such complaints on the current and future industries/industrial uses to the south and east of the proposed development. • The experts agree that the following measures may reduce the potential risk of complaints/ and Giobal Fortune has agreed to their inclusion: o Visual screening in the form of blank facades on the southern-most faces of the Building A/ Building B and Building C residential towers, above podium level; o A 4.2 m high noise wall to shield the outdoor amenity area located on the Tower C podium roof; o Enclosed noise buffer balconies to be located on the east and south facades of Tower B and Tower C, above the podium level, which will also serve to reduce the potential for complaints for odour; o That mandatory central air conditioning be provided, and that the heating, ventilation and air conditioning ("HVAC") systems for the buildings be designed to include provisions for the installation of carbon filters, if deemed necessary in the future; o The buildings should be maintained under positive pressure under normal weather conditions, in accordance with current practices advocated by the American Society of Heating, Refrigerating and Air-Condjtioning Engineers ("ASHRAE"}; o Self-sealing doors for alt doorways leading on to the southern facing balconies of the podiunn level of Tower B (floors 2 through 6); o The fallowing warning clauses should be included in documents registered on Title and in agreements of Offers of Purchase and Sale, lease/rental agreements and condominium declarations: " Noise warning clauses that are, at a minimum, consistent with the applicable recommendations of MECP guideline NPC-300, Metrolinx and CN Rail; and, • An odour and dust warning clause • It is BCK's opinion that, despite the above mitigation measures/ the potential for complaints are not eliminated and, as such, consideration of other agreements between the developer and industries are warranted, for example, agreements under the Industrial and Mining Lands Compensation Act. IMovus disagrees/ and is uncertain if such agreements can be considered at this stage or impfemented by the Tribunal. Agreement The Issues - Issues of D. Crupi & Sons Ltd. fssue 10, Has the potentiaffor impacts resulting from complaints from the residents of the high density high rise residential development at 4665 SteeSes Avenue East on the Crup's repair one! service facifity at 70 Passmore Avenue been property assessed? Issue 13. Has the potentia! for impacts resulting from a future Crupf Ready-Mix Plant at 70 Passmore Avenue been property assessed? Issue 14. Has the possibility that a future new Ready-Mix Plant at 70 Passmore Avenue wil! be restricted or compromised as a result of the proposed high density high rise residential uses at 4665 Steeles Avenue East been properly assessed? Issue 15. Is st appropriate and does it represent good pfanning to locate high density high rise residential uses at 4665 Steeles Avenue East withf n the D-6 Zone of influence of the Crupi asphalt plant at 85 Passmore Avenue? {ssue 16. Has the potential for future restrictions on the existing Crupi Environmental Compliance Approvals resulting from compfahts from the residents of the proposed high density high rise residential development at 4565 Steeles Avenue East been property assessed? 1 Issue 17. Has the potential for increased difficulty in Crupi obtaining future EnvironmentaS Compliance i . Approvals resulting from the presence of sensitive receptors in the form of high density high use residential I units being constructed at 4665 Steetes Avenue East been properly assessed? ! j Issues 10 and issues 13 through 17 address air quality and noise. The experts agree that these issues are not well-worded and defer to the agreed statement of facts above. 1 1 I Issue 18. Is there validity for the concern about conflicts between heavy mctustrlai land uses and \ residentia! land uses resulting from noise, dust, odour or visual impact (using the Miller Asphalt Plant at I 4615 Thickson Hoad in Whttby, Ontario as a comparison)? I Novus and BCX/HGC agree that conflicts between industrial and sensitive land uses are possible. I However/ these potential concerns are site-specific, and are appropriately addressed through I studies conducted in accordance with Provincial guidelines, regulations and standards, including, as applicable, MECP Guideline D-6. The example in Issue 18 was given because no air j quality mitigation measures were originally identified. Mitigation measures have now been identified, as described above, 4 Signatures ZL_^. T^^?^p^\ ^Q~7, ^^——3 Name: Ms. Bridget Mills, P.Eng., BO Name: Mr. Corey KInart, P.EngVHGC Date; ,.-Ay93...2018 -._. -.. Date; . /i^^wA <"" ^~ —y y ^ ^ Name: Mr. Nlgel Taylor, M.Sc./ EP, Novus Name; >^%^Sc(^P^5n/ P.Eng., Novus Date: ^^^__ Date; _A^4/3^L^ Chief Planner and Executive Director, City Planning, a privately owned publicly accessible (POPS) courtyard area located between Deleted: ¥ tmjding A andJBuiidmg B providing direct at-^Tade^connectior^ Deleted; Tower between the new pedestrian walkway. The specific location, Deleted! Tower configmatioDi^imiEg and design to be determined during Site Plan Deleted:. Control Approval and secured in a Site Plan Agreement with the Deleted: ^ City,.. Deleted: f Deleted! the first !?^?;5^-?^^?A^IL9X^J?-S^9J^5l^^iy^ Deleted! ( each phase .pfthedevelopraent, the Owner shall have completed Deleted i.Tower •construction of the portion of the publicly accessible walkway and Deleted! BuildtngB) fg