Ontario Municipal Board

Commission des affaires municipales

de I'Ontario
Ontario

ISSUE DATE:

January 13, 2015

CASE NO(S).:

PL140537

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.

1990, c. P. 13, as amended
Applicant and Appellant:
Subject:

Existing Zoning:
Proposed Zoning:
Purpose:

Property Address/Description:
Municipality:
Municipal File No.:
OMB Case No.:
OMB File No.:

Urbancorp (Old Mill) Inc.

Amendment to the former City of Etobicoke
Zoning Code - Failure of the City of Toronto to
announce a decision on the application
R3 (Third Density Residential)
Site Specific (To be determined)
To permit the development proposal consisting
of 20 single detached dwellings and 72 semi
detached dwelling units
300 Valermo Drive
City of Toronto
13 180561 WET 06 OZ
PL140537
PL140537

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O.

1990, c. P. 13, as amended
Applicant and Appellant:
Subject:

Property Address/Description:
Municipality:
Municipal File No.:
OMB Case No.:
OMB File No.:

Urbancorp (Old Mill) Inc.

Proposed Plan of Subdivision - Failure of City of
Toronto to announce a decision on the application
To permit the development proposal consisting of
20 single detached dwellings, 72 semi-detached
dwelling units and four new public roads
300 Valermo Drive
City of Toronto
13 180583 WET 06 SB
PL140537
PL140538

Heard:

December 9 and 12, 2014 in Toronto, Ontario

Purpose:

PL140537

APPEARANCES:
Parties

Counsel

Urbancorp (Old Mill) Inc.

Eileen Costello

City of Toronto

Leslie Forder

DECISION OF THE BOARD DELIVERED BY J, de P. SEABORN

INTRODUCTION

[1]

The matter before the Board is an application by Urbancorp (Old Mill) Inc.

("Applicant") seeking approval for a zoning by-law amendment ("By-law") and a draft
plan of subdivision to facilitate a residential development proposed for 300 Valermo
Drive, located in the south end of the former City of Etobicoke ("Etobicoke"). At the
commencement of the hearing Ms. Costello and Ms. Forder advised that the Applicant
and the City of Toronto ("City") had reached a settlement, subject to confirmation of the
execution of an agreement pursuant to s. 37 of the Planning Act ("Act'), The hearing
had been scheduled for four days and evidence was provided on December 9, 2014 in
respect of the planning instrument for which approval was sought. Counsel requested
that the hearing stand down for the purpose of arriving at an agreement with respect to
s. 37 benefits. The parties were unable to reach an agreement and evidence was heard
in respect of whether s. 37 benefits should be paid and if so, in what amount. The
parties did however request that the Board approve the proposed By-law (Exhibit 5), but
withhold any order, in accordance with the evidence presented. Notice was given of the
hearing and no other parties or participants appeared.

EVIDENCE AND FINDINGS

[2]

In support of the application Craig Hunter, a land use planner qualified to provide

opinion evidence, testified in support of the settlement reached between the Applicant
and the City. Briefly, the site proposed for redevelopment is approximately 3.4 hectares

PL140537

('ha") with frontage of 204 metres ("m") on Valermo Drive, in Etobicoke-Lakeshore. The
site is close to the Gardiner Expressway, Highway 427 and the Brown's Line GO
Station. A former school site, the proposal is to construct 98 units, 12 of which will be
single-detached dwellings and the balance of which (86) will be constructed as semi
detached homes. The proposal includes new public roads, with access from Valermo
Drive.

[3]

Mr. Hunter explained that the application was amended in several ways to

address concerns raised by City planning staff. Specifically, with the unit count
increased from 92 dwellings to 98 dwellings, the configuration is amended to reduce the
number of single-detached homes and increase the number of semi-detached
dwellings. The By-law provides standards for each Block, including: a height restriction
of 9.5 m (the original proposal had a height standard of 12 m); increased lot frontages
from the original proposal of 12 m for the single-family dwellings and a range (about 8
m) for the semi-detached dwellings; and integral garages of varying designs for each
dwelling. These changes, in addition to reaching agreement on a range of benefits
under s. 37 of Act, resulted in support by the City of the proposal.

[4]

Mr. Hunter testified that because the property is a former school site, the City's

new comprehensive Zoning By-law No. 569-2013 does not apply. All school sites are
excluded from the application of Zoning By-law No. 569-2013 and accordingly the
former Etobicoke Zoning Code continues to apply to the lands. They are zoned R3
(Third Density Residential) which permits a range of uses including semi-detached
dwellings, single-detached dwellings, duplex and triplex dwellings, group homes and
private home day nurseries. Other uses include home office and institutional uses,
including schools, libraries and churches. The zoning standards do however require
amendment on a site specific basis and the proposed By-law sets appropriate
standards.

4
[5]

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The By-law includes clear and detailed standard for each Block and it was Mr.

Hunter's opinion that it is consistent with the Provincial Policy Statement and conforms
to the requirements of the Growth Plan. The proposal achieves the objectives of and
conforms to the policies contained in the City's Official Plan ("OP"). Mr. Hunter
reviewed the relevant policies contained in the OP and I am satisfied, based on the
opinion evidence that the proposal, as revised, represents good planning. In arriving at
this decision there has been regard to the provincial interest as required under s. 2 of
the Act, as well as the decision of City Council. The photographs of the area,
architectural drawings and renderings of the proposed development show attention to
detail and will result in a project that meets objectives of intensification and providing
new housing. The parties clearly collaborated to achieve an agreed upon project that I
find should be approved.

[6]

With respect to the request for benefits pursuant to the provisions of s. 37 of the

Act, I find that a contribution is warranted however for an amount less than requested by
the City. Briefly, the City seeks a contribution of $500,000 which in the opinion of
Cynthia Owusu-Gyimah, represents an appropriate contribution to be allocated toward
local park improvements in accordance with the direction from Council (Exhibit 8). Ms.
Owusu-Gyimah explained the process followed by the City in arriving at the amount of
the initial recommended contribution, which included consultation with the local
councillor and obtaining land values from the real estate division. The increase in
density beyond what is permitted was valued to arrive at the amount the City seeks for
local park improvements, including play structures, landscaping improvements and a
splash pad. The original request identified by staff was for a contribution of $1 million.
However, Ms. Owusu-Gyimah testified that the decrease in height reflected in the
revised application is, from the City's perspective, an important change to the project,
the direction from Council is to seek $500,000 to satisfy the s. 37 requirement. It was
her opinion that the amount requested is connected to the development and will result in
local park improvements close to the site and provide an appropriate benefit which
represents a fair recognition of the Applicant obtaining an increase in density but

PL140537

reducing overall heights in accordance with the revised plans for the Blocks.

[7]

Mr. Hunter testified that the City has failed to establish a basis for any

contribution pursuant to its policies and the provisions of s. 37 of the Act. There was
agreement between the planners that the development proposal represents good
planning and the By-law, regardless of any contribution under s. 37, conforms to the
City's OP. Mr. Hunter stated that he did not question whether his client's project was
eligible to make a contribution of community benefits but he does question the
reasonableness of the request.

[8]

First, Mr. Hunter indicated that there is no clear rationale for the request given

agreement on the built form and design for the development. It was his view that there
was no real basis for the original request at $1 million, nor for reduced request at
$500,000. The community service and facility study for the area found that existing
services meet the needs of the current residents and can easily meet the requirements
for future growth. There was no shortage of parkland identified in the study. The study
concluded that if there is a community need, it is for more daycare, yet the request from
the City is for park improvements. Ms. Owusu-Gyimah was fair in agreeing that the
funds obtained as cash-in-lieu of parkland contribution could be used to improve local
parks.

[9]

Second, Mr. Hunter testified that the amount sought is excessive when

considering both need and contributions made by similar projects. The project is not a
high-rise and if it were, a "ball-park" figure would be about $1,600 per unit or $150,000
for 98 units. The development is for town-houses and these types of projects at the
scale proposed would typically result in a contribution within a range of $50,000 to
$150,000. On this basis, even the $500,000 sought by the City is simply too high. As
compared to other town-house projects in the area which have resulted in a range of
contributions between $50,000 and $150,000 (Exhibit 15), the amount sought by the
City cannot be justified. Ms. Owusu-Gyimah confirmed that if development consisted of

PL140537

single-family homes as opposed to townhouses, s. 37 benefits would not be sought.

[10]

Lastly, it was Mr. Hunter's opinion that the request by the City is simply not fair or

moderate. The City has failed to establish a link between the project and the benefits
sought. The application of s. 37 is discretionary and there has to be a justifiable
planning rationale associated with the request. The community service study identified
daycare as a need, yet the local councillor seeks a contribution for park improvements.
A contribution of $500,000 might be appropriate for a high-rise project based on
comparable projects in the City as long as a link has been established. Instead, it was
Mr. Hunter's opinion that the City relied on unsubstantiated land values and applied a
range to the increase in density for a townhouse project. I accept that on the facts of this
case the valuation employed is not transparent. On this basis it was Mr. Hunter's view
that there can be no contribution and the City's guidelines and protocol for negotiating s.
37 benefits has not been followed with respect to the application.

[11]

Based on the evidence heard, I find that while a s. 37 contribution is warranted

given the increase in density that results from the project, the amount sought by the City
is excessive. Both witnesses were fair and straightforward in their respective opinions,
agreeing that there were weaknesses in the position taken by each. However, relying on
the contributions made for projects in the area, even accepting that many are high-rise
developments, some contribution pursuant to s. 37 of the Act is justified. As Mr. Hunter
indicated, the project does qualify for a contribution but I accept his opinion and
reasoning as to why the amount claimed is excessive. Neither the original amount
sought of $1 million nor the reduced request at $500,000 following changes to the
project are clearly justified. Several Board decisions on the issue of s. 37 benefits
collectively emphasize that contributions must be justified and I adopt the submissions
of Ms. Costello in this regard. The Board has routinely held that it lies with the
municipality to prove the connection between the amount of the benefit sought and the
community benefit it seeks to fund. The specific request must include a relationship to
the proposal. Finally, the use of s. 37 must be based on fair, clear, transparent,

PL140537

predictable specific requirements. While the deficiency identified related to daycare and
the benefit requested is for local park improvements, I am prepared to require some
contribution to represent the increase in density reflected in the By-law. The Board has
jurisdiction to require a lesser amount than requested by the City and consistent with
the opinion of Mr. Hunter, a $150,000 contribution falls with a range of amounts paid for
other townhouse projects.

DECISION
[12]

The Board orders that the appeal is allowed in part. The Etobicoke Zoning Code

is amended in the manner set out in Exhibit 5 and as amended, is approved. The
Board's order is however withheld to allow the parties an opportunity to revise Exhibit 5
to make certain housekeeping changes and to reflect the decision in respect of benefits
payable under s. 37 of the Act which is established at $150,000. The amended By-law
should be provided to the Board within 30 days of the date of this decision and
thereafter the Board's order will issue. The application made pursuant to the provisions
of s. 51(34) of the Act is adjourned sine die. Counsel may contact the Board to arrange
a hearing date when they are ready to proceed with the draft plan of subdivision.

"J. de P. Seaborn"

J. de P. SEABORN
VICE-CHAIR

Ontario Municipal Board

A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248