H.W.O. Doyle, LL.B., LL.M.
City Solicitor
Legal Services
100 Queen Street West
14th Floor, West Tower, City Hall
Toronto ON M5H 2N2
Tel: (416) 392-8040
Fax: (416) 392-0005
October 8, 1998
To:North York Community Council
From:H.W.O. Doyle
City Solicitor
Subject:Seneca College of Applied Arts and Technology
Application for Zoning Amendment UDOZ-88-037
43 Sheppard Avenue East
Our File ZN97.19
Purpose:
To report on the decision of the Ontario Municipal Board to allow the appeal by Seneca
College from North York Council's refusal or neglect to enact a zoning by-law amendment
and to amend By-law 7625 in accordance with Seneca's application.
Funding Sources, Financial Implications and Impact Statement:
Nil.
Recommendations:
It is recommended that this report be received for information.
Council Reference/Background/History:
In 1988, Seneca College of Applied Arts and Technology applied for a zoning amendment
to permit the construction of a commercial office tower and a college facility at 43 Sheppard
Avenue East. For a number of reasons, including the review of the land uses in the South
Downtown and the uncertainty of the location of the south-west leg of the Downtown
Service Road, this application was not proceeded with until the conclusion of the hearing
into OPA 393. The Board's decision on OPA 393 determined the preferred location for the
service road, to the east of the Seneca site, leaving Seneca free to pursue its application.
Seneca amended its application in June of 1997 to include residential uses and had requested
the Board to approve a by-law which would permit up to 100% of the gross floor area
available to be used for either commercial or residential purposes or any combination of
both. Council recommended approval of the application subject to a limitation on the
amount of residential space permitted in accordance with the provisions of OPA 447,
enacted in September 1997 and not yet approved by the Minister of Municipal Affairs or the
Ontario Municipal Board.
Comments and/or Discussion and/or Justification:
At the commencement of the hearing, counsel for the applicants moved for directions from
the Board on the relevance of OPA 447, an official plan amendment enacted after the
application and the revision to the application were filed, which placed restrictions on the
mix of uses, which the applicant argued the existing, approved official plan policies did not
contemplate. The applicant argued that the policies of the later adopted plan were not
relevant to the issues before the Board. Counsel for the City argued that, while the caselaw
is clear that subsequently adopted policies cannot be determinative of the issue at the Board,
those policies are the most recent statement of Council's intentions and are, therefore, often
relevant to the issue. The Board determined that it would not hear any evidence on OPA
447, adopted after the recent revisions to the applications, and adopted after the hearing on
OPA 393, which dealt with land use issues in the same area and at which both the City and
the applicant were parties.
While the City could no longer rely on OPA 447, the City's case also included evidence that
the policies of the existing, approved official plan encouraging the provision of significant
concentrations of commercial development at certain locations, including the node at Yonge
and Sheppard, and the application of good planning principles, supported the restriction on
the amount of residential that should be permitted at this important location.
The Board determined that it was not necessary for each and every parcel located within the
node to develop commercially in order to provide the significant commercial concentration
that the plan encourages. In fact, the Board found that there is already a significant amount
of commercial development existing or approved but unbuilt at the intersection of Yonge
and Sheppard and therefore, the City has come a long way already to achieving its goal. The
Board also found that the existing official plan policies do not regulate the mix of uses and if
the City chooses to regulate the mix of uses, it must do so by incorporating such policies
into its official plan. The City has done so in OPA 447, which is not yet approved.
The applicant requested the Board to grant relief from the condition of approval required by
the Council approval of the application, requiring the payment of the Yonge Centre
Development Charge prior to enactment or approval of the zoning by-law amendment. The
Board found that while the Development Charges Act permits the City to enter into an
agreement with an owner for early payment of development charges, the Board has no
jurisdiction to require such payments to be made in advance of application for building
permit and so the condition of Council requiring such payment was not imposed by the
Board.
A Memorandum of Oral Decision will be issued in due course.
Conclusions:
The Board's order approving the draft by-law permitting full flexibility in terms of mix of
commercial and residential uses will issue when the applicant has executed an amendment
to their existing site plan agreement to incorporate agreed upon Urban Design Principles and
the concept plans which constituted a Master Site Plan approval.
Contact Name:
Catherine M. Conrad
Solicitor
392-7244
cconrad@city.toronto.on.ca
H.W.O. Doyle
City Solicitor
