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LOCAL PLANNING APPEAL TRIBUNAL Tribunal D'appel De L'aménagement Local PROCEEDING COMMENCED UNDER Subsection 22(7) of the Planning Act, R.S.O

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LOCAL PLANNING APPEAL TRIBUNAL Tribunal D'appel De L'aménagement Local PROCEEDING COMMENCED UNDER Subsection 22(7) of the Planning Act, R.S.O Local Planning Appeal Tribunal Tribunal d’appel de l’aménagement local ISSUE DATE: May 12, 2021 CASE NO(S).: PL180211 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 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: CRAFT Acquisitions Corporation and P.I.T.S. Developments Inc. Subject: Request to amend the City of Toronto Official Plan, Railway Lands West and Central Secondary Plans – Neglect or Refusal of request by the City of Toronto Existing Designation: Utility Corridors and Parks on Map 18 – Land Use Plan Proposed Designated: Site Specific (To be determined) Purpose: To permit a large-scale mixed-use development with a major park and open space component over the railway corridor Property Address/Description: Railway Lands between Bathurst Street and Blue Jays Way Municipality: City of Toronto Approval Authority File No.: 17 164359 STE 20 OZ OMB Case No.: PL180211 OMB File No.: PL180211 OMB Case Name: CRAFT Acquisitions Corporation v. Toronto (City) PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Canadian National Railway (“CN”) and Toronto Terminals Railway (“TTR”) 2 PL180211 Subject: Application for Consent - Failure of the City of Toronto Committee of Adjustment to make a decision Purpose: To serve and merge the air right properties above rail corridor Property Address/Description: 18D York Street Municipality: City of Toronto Municipal File No.: B0025/19TEY LPAT Case No.: PL200140 LPAT File No.: PL200140 LPAT Case Name: Canadian National Railway v. Toronto (City) PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Canadian National Railway (“CN”) and Toronto Terminals Railway (“TTR”) Subject: Application for Consent - Failure of the City of Toronto Committee of Adjustment to make a decision Purpose: To serve and merge the air right properties above rail corridor Property Address/Description: 18D York Street Municipality: City of Toronto Municipal File No.: B0026/19TEY LPAT Case No.: PL200140 LPAT File No.: PL200141 PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Canadian National Railway (“CN”) and Toronto Terminals Railway (“TTR”) Subject: Application for Consent - Failure of the City of Toronto Committee of Adjustment to make a decision Purpose: To serve and merge the air right properties above rail corridor Property Address/Description: 18D York Street Municipality: City of Toronto Municipal File No.: B0027/19TEY LPAT Case No.: PL200140 LPAT File No.: PL200142 3 PL180211 Heard: November 2 to 5, 2020 inclusive; November 9, 10, 12, 13; November 16, 17, 23 to 25, inclusive, 2020; January 18 to 22, inclusive; January 18, 19, 25 to 29, 2021 inclusive, February 1 to 5, 2021 inclusive; February 8 to 12, 2021, inclusive; and March 2, 3 and 4, 2021, inclusive. APPEARANCES: Parties Counsel/Representative* CRAFT Acquisitions Corporation Ira Kagan P.I.T.S. Developments Inc. Kristie Jennings Barnett Kussner Denise Baker Sarah Kagan (student-at-law) City of Toronto Brendan O’Callaghan Joanna Wice Grange Community Association Inc. Max Allen* Metrolinx Corporation Jennifer Evola Canadian National Railway Company Alan Heisey Toronto Terminal Railway Company Michael Krygier-Baum Ltd. DECISION DELIVERED BY WILLIAM R. MIDDLETON, T. PREVEDEL AND C. TUCCI ON MARCH 4, 2021 AND ORDER OF THE TRIBUNAL 4 PL180211 Table of Contents 1. Introduction Paragraphs (a) General 1-18 (b) Tribunal rulings 19-21 (c) Materials before the Tribunal 22 2. The Test Governing an OPA Application 23-41 (a) Position of the City of Toronto (“City”) 23-30 (b) Position of the CRAFT Acquisitions 31-33 Corporation and P.I.T.S. Developments Inc. (“CRAFT”) (c) Decision of the Panel on the OPA Test 34-41 Analysis of the Evidence 42-185 (a) Urban Design/Architectural/Landscape Design 42-86 (b) Parks/Open Spaces: “The Parks Issue” 87-104 (c) Engineering/Structural 105-119 (d) Traffic/Transportation 120-130 (e) Stormwater/Water/Sewage Servicing 131-147 (f) Overall Planning Issues 148-185 3. Conclusions: Decision and Orders of the Tribunal 186-200 5 PL180211 1. INTRODUCTION (a) General [1] The Parties to this proceeding are CRAFT Acquisitions Corporation and P.I.T.S. Developments Inc. (“CRAFT”), the City of Toronto (“City”), the Grange Community Association (“GCA”) and Canadian National Railways (“CN”) and Toronto Transit Railways (“TTR”), (collectively “CN-TTR”). Metrolinx Corporation (“Metrolinx”), an Ontario crown corporation, became a Participant following its withdrawal on July 23, 2020 as a Party to the CRAFT Official Plan Amendment (“CRAFT OPA”) application. This Local Planning Appeal Tribunal (“LPAT”, “Tribunal”, “Panel”) hearing proceeded in three phases: Phase I is the subject matter of another LPAT Decision issued on October 16, 2020 in case nos. PL180211/PL200140 and shall not be further referenced; Phase II was the presentation of CRAFT’s case-in-chief, commencing November 2, 2020; and Phase III was the presentation of the City’s responding case-in-chief, commencing on January 18, 2021, which ended with the oral arguments of all Parties on March 2, 3 and 4, 2021, based on their written final submissions as requested by this Panel. The proceeding involved 36 total hearing days for Phases I, II and III. The Panel reserved its rulings at the conclusion of final argument on March 4, 2021, and now delivers this Decision. [2] By way of summary overview, except for Spadina Avenue and one small portion owned by the City in and on which the Puente De Luz Pedestrian Bridge (“PDL Bridge”) is located, CRAFT owns the air rights above the approximately 150 year-old downtown Toronto rail corridor now owned and operated by CN-TTR. That CN-TTR rail corridor has several tracks and marshalling yards used for the transit of rail freight and passenger trains such as GO Transit and VIA Rail (“Rail Corridor”). The Rail Corridor spans the area from approximately Blue Jays Way adjacent to the Rogers Centre in the east, to Bathurst Street in the west. [3] The CRAFT air rights above the Rail Corridor (“CRAFT Property” or “CRAFT Site”) were first secured by CRAFT from CN-TTR on December 2, 2013 - well after the 6 PL180211 City bought in 2007 from CN-TTR solely the modest slice of air rights the City required to construct the PDL Bridge. The City owns Bathurst Street as well as the PDL Bridge and Spadina Avenue and all air rights above them. Spadina Avenue, like the PDL Bridge, bisects the CRAFT Property from roughly north to south. Blue Jays Way borders the eastern edge of the CRAFT Site. It is a street located on land leased by the City which also is roughly oriented in a north to south direction as it curves around the Rogers Centre, which is a well-known large sports stadium and hotel complex. [4] The Rail Corridor and the CRAFT Property were designated under the City’s Official Plan (“OP”) as a Utility Corridor. It has been recognized by the City and others for many years that the rather barren Rail Corridor could be eventually developed for different purposes. Indeed, the majority of the major land parcels surrounding the Rail Corridor have been designated Mixed-Use, and almost all of them are populated in part by large, tall office or residential towers with approximately the same range of heights as is proposed for the buildings under one conceptual example relating to the OPA application by CRAFT (i.e. the “Concept Plan” discussed at length in Part 2 below). Under the City’s OP, two secondary plans, the Railway Central and West Secondary Plans, were promulgated by the City in 1994 for the very reason that development in the Rail Corridor has been contemplated for several decades. In fact, one portion of the air rights above the Rail Corridor not owned by CRAFT or CN-TTR is the portion owned by Metrolinx and it is already designated Mixed-Use. Presumably this is one reason why Metrolinx decided to remove itself from the application by CRAFT for an OPA changing the designation for the CRAFT Site to Mixed-Use in order to permit a significant development on the CRAFT Site, which is the subject matter of this appeal. [5] The evidence before the Tribunal indicated that CRAFT began its internal planning process regarding a possible large mixed-use development in its air rights over the Rail Corridor as early as 2013. This first resulted in the internal presentation in 2014 of a development proposal for the CRAFT Site. CRAFT’s planning representative Mr. Ian Graham later made a presentation to Mr. Gregg Lintern, then the City’s Chief Planner on August 26, 2015. An initial concept plan was presented by CRAFT’s 7 PL180211 architect to the City’s planning department on January 26, 2016. Correspondence continued to be exchanged by CRAFT with the City in March and April 2016 concerning the Rail Corridor planning process. [6] Evidence tendered by CRAFT established that, to the surprise of CRAFT, its representative Mr. Graham was told not to proceed with a private OPA proposal for the CRAFT Site in a July 20, 2016 meeting with the City’s planning department, attended by Mr. Lintern. It soon became apparent that the City had rather different plans for the CRAFT Property: the City’s Mayor made an announcement on August 3, 2016 that a new public park would be built by the City on the CRAFT Site, to be called “Rail Deck Park”.
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