November 28, 2018 Via…

November 28, 2018 Via Courier Ministry of Municipal Affairs and Housing Municipal Services Division Municipal Services Office - Central Ontario 777 Bay Street, Floor 13 Toronto ON M5G 2E5 ATTN:The Honourable Steve Clark, MPP Minister of Municipal Affairs Dear Sirs / Mesdames: Re: Adoption of City of Toronto Official Plan Amendment –Yonge-Eglinton Official Plan Amendment No. 405 (By-law 1284-2018) EBR Registry Number: 013-3483 Ministry Reference Number: 20-OP-187916 We are counsel to N. H. D. Development Limited (“NHD”) with respect to the above-captioned matter. We are writing on behalf of NHD, in response to the abovementioned invitation for comments, to express our client’s concerns with Official Plan Amendment No. 405 as adopted by City Council on July 27, 2018 (the “Proposed Plan”) currently before the Ministry for review. NHD and companies associated therewith have interests within the area covered by the Proposed Plan as well as interests across Toronto, so it is fair to say that NHD is concerned generally with land use planning in Toronto. NHD submits that many of the provisions of the Proposed Plan are inappropriate from a land use planning policy perspective and it should be significantly modified before it is approved, in whatever forum that may ultimately be. Further, there are legal issues attending the Proposed Plan that must be addressed prior to its approval. At the drafting and implementation level, the Proposed Plan is deficient in providing for appropriate and objective direction.  The following are the general categories of land use planning policy issues which NHD is raising, a number of which are intertwined with legal issues: 1.The Taking of Private Property (a)The proposed appropriation by the City of private interests in land for purpose of an expansion to the public realm, without a legal basis for such taking; and (b)The proposed appropriation of private property, financial or otherwise, for the purpose of providing inadequately described facilities for the use of the public, without a legal basis for such taking. 2.The proposed imposition of built-form restrictions which are at once too specific and unnecessarily restrictive (e.g. specific building height, base building height, building set-back, building stepback, building separation and open space metrics) to provide for contextually appropriate intensification with adequate scope for architectural expression and too arbitrary (e.g. “…contribute to: the skyline of Midtown”) for any reader of the Proposed Plan to understood what is intended to be communicated. 3.The proposed imposition of rigid housing unit size and mix requirements, which impede the ability to respond to market demand, increase housing costs and lead to inefficiencies in the provision of community service facilities. 4.The proposed imposition of a parkland provision which provides effectively unfettered discretion to the municipality in enacting a parkland dedication by-law, without regard for the potential negative implications for Provincial intensification objectives. Further, a proposal to create a requirement for parkland dedication off-site which is not supported by law. 5.The proposed imposition of restrictions on the timing of development linked to the provision of community service facilities, which are for practical purposes at the discretion of the City or a third party such as a school board. 6.The proposed imposition of strict requirements, in certain areas and including the Subject Property, for maintaining or increasing the gross floor area of identified non-residential uses. 7.The proposed imposition on building (including interior) and site programming of requirements for amenity space. The foregoing will be addressed in turn, followed by commentary on the more distinct legal issues (the proper use of Section 37 of the Planning Act and the proper Planning Act route for approval of the Proposed Plan). It is important to note at the outset that on its own terms, the very detailed and prescriptive nature of the Proposed Plan is problematic. Section 2.1.4 would provide that any application to amend the Proposed Plan enables the City to conduct studies or a Secondary Plan review, in its discretion, prior to the consideration of the application. The City has argued in LPAT proceedings that a similar provision entitles it to apply new policy, created after the submission date of the application, to the consideration of the application. Thus proposing any change to a detailed numerical standard in the Proposed Plan renders the applicant subject to the risk of the arbitrariness of after-the-fact land use regulation. 1.The Taking of Private Property (a)The appropriation of private interests in land: The Proposed Plan includes numerous provisions which contemplate provision for access by the general public over private property and/or specific improvements to the public realm being provided by private landowners (e.g. sections 3.1.3, 3.1.4, 3.1.5, 3.1.8, 3.2.2(b), 3.2.3, 3.2.4, 3.2.5, 3.2.6, 3.2.8, 3.2.10, 3.2.11, 3.3.25, 4.1.3, 4.2.5, 5.6.7). These provisions very generally fall into two categories. The first is, for practical purposes, widenings of public sidewalks, a number of which are described with specific numerical standards. The second category is for similar widenings, but imprecisely described, and other enhancements to the public realm including mid-block connections and forecourts. It must be noted that beyond the above categories and provisions, that section 9.6.1 specifically contemplates the conveyance of an easement to the City. An immediate issue is that the taking of any property must have a basis in law, and the Proposed Plan demonstrates no such basis. The result here is that the taking would be arbitrary from a functional perspective: the City would not be required to justify the taking on the basis of a legitimate planning policy objective. Putting aside the illegality, the negative policy implication is that the certainty for all stakeholders which is supposed to be the result of the planning process is diminished and that desirable intensification is discouraged. (b)The appropriation of private property, financial and otherwise: The Proposed Plan contains numerous provisions which on its plain words “require” the provision of, or contributions toward, community service facilities, but provides no basis in law for such taking (e.g. Sections 6.5, 6.10, 9.4.6). Further, there is no direction or suggestion for how such “contribution” relates to the development from which it is to be exacted. For example, Section 3.3.25 suggests that an as-yet undefined taking of land for public purposes is possible, and for a property of a substantial size Section 9.4.6 indicates that provision of a fully finished and outfitted, but undefined community service facility will be requested. Section 5.1.1.(g) requires the provision of public art, without identifying any parameters on such provision. Thus a development parcel effectively becomes smaller from the taking of an interest in land, limiting development, while such lessened development is burdened with additional requirements not justified in law or good planning policy. The cumulative effect is to both discourage intensification and to lessen the likely amount of intensification which is to occur, in the area which is bisected by the location of the largest expenditure on public transit in recent history. 2.Built-Form Restrictions The Proposed Plan would provide, at an official plan level, a detailed and prescriptive built-form regime (e.g. Sections 3.2.2(b), 3.2.3, 3.2.10, 3.2.11, 5.3.5, 5.3.30, 5.3.32, 5.3.33, 5.3.34, 5.3.34, 5.3.35, 5.3.36, 5.3.40, 5.3.44, 5.3.51) which a priori discourages intensification and diminishes the opportunity for creative architectural design. It is perhaps worth noting that no new tall buildings except for those in locations specifically identified would be permitted, notwithstanding that small-footprint, tall buildings provide the best opportunity to preserve soft landscaped areas of grade, and also to preserve sky-view, both of which purport to be goals of the Proposed Plan. However, the restrictions on built-form extend well beyond the detailed numerical standards and tall building prohibition. In addition to requirements respecting the relationship of the proposed development to the “skyline”, without any guidance on what such a relationship should be, there are a number of directions to “minimize” shadow impacts and “maximize” skyview and sunlight. The issue with such wording is that it must be seen as arbitrary, since on the plain words such minimization and maximization lead to the same unreasonable result: constructing no new buildings at all. 3.Housing Mix Part 7 of the Proposed Plan sets out housing policies. The unit mix and size requirements will have a negative impact an affordability, which will be exacerbated in the event that a development is compelled to subsidize housing in order to make it affordable to low and moderate income households. Furthermore, the prescriptive nature of the mix means that a developer or landlord will be limited in its ability to tailor the building program to the market or the neighbourhood. This means less efficiency in the provision of both private and public services. 4.Parkland Section 3.3.18 of the Proposed Plan purports to require the City to adopt a new parkland dedication by-law, with the sole constraints that the alternate rate(s) would be “commensurate with the intensity of development”. Given the other “takings” contemplated by the Proposed Plan which are identified herein, parameters for the park “taking” should be established in the Proposed Plan which are sufficiently defined so as to permit an assessment in land use planning policy terms of their collective effect. Furthermore, we submit that the apparent intent of Sections 3.3.19, 3.3.20 and 3.3.21 collectively may be to require off-site parkland dedication. We submit that such cannot be required as a matter of law, so either such sections should be deleted or clarified that such is not the intent.  5.The Timing of Development and Community Service Facilities The Proposed Plan includes holding provisions providing for the delay of development pending the provision community service facilities (e.g. Section 9.5.1.c). However, it is not appropriate to delay development pending the provision of community service facilities since such provision is at the discretion of community service providers. The inclusion of public schools in the definition of “community service facility” is particularly problematic in this respect. The Toronto District School Board (“TDSB”) has publicly taken the position that development ought to be delayed pending confirmation of school capacity, in full knowledge of and despite Ministry of Education policy that capital facilities to provide therefor will not be funded until the students are already present (e.g. being bussed or accommodated in portable classrooms). The Proposed Plan provides the basis for implementing the TDSB position effectively thwarting Ministry of Education policy, which we submit is intended to impose fiscal discipline on TDSB, which has a large stock of underutilized capital facilities. NHD also submits that the Proposed Plan would purport to remit the ability to define such facilities and thus the nature and scale of the taking to a non-statutory instrument, a “Mid-town Community Services and Facilities Strategy”, which is to “guide” the provision of community services. This instrument is not subject to appeal. In any event, this attempt to effectively elevate the status of a non-statutory instrument through the Proposed Plan is both illegal and contrary to the existing Official Plan. 6.Requirements to Retain/Increase Non-residential Uses The Proposed Plan includes area-specific policies which purport to require non-residential uses as a minimum percentage of gross floor area, subject to in all circumstances replacing 100% of any pre-existing office gross floor area (Sections 2.5.4, 2.5.7). At the outset, we submit that these provisions are contrary to law, as they effectively amount to conditional zoning without satisfying the statutory pre-conditions therefor. In any event, these policies are likely to impede intensification given the differing markets for residential and non-residential uses and the different building requirements for these uses (where such must be combined in single building). Given the existing and forthcoming transit infrastructure in the vicinity, the efficient use thereof provided by intensified land use should be a priority. 7.Design and Location of Amenity Space Part 5.7 of the Proposed Plan provides policies intended to deal with both indoor and outdoor amenity space. At the outset, we submit that the elements of interior building design purported to be governed are beyond the purview of the Planning Act. Next, the mandatory wording of the provisions leads to unreasonable and undesirable results: for example, the amenity space in a seniors’ building would be required to provide “elements and programming” for children. Other mandatory wording requires exterior windows for amenity space, but not all interior amenity space benefits from windows and being above grade, squash courts and saunas being prima facie examples, but a windowless environment can also be desired for facilities such as media rooms. With respect to outdoor amenity space, the wording is ambiguous and subjective and thus inappropriate for an official plan. For example, Section 5.2.2(a), provides that “outdoor amenity spaces will be sited and designed to…maximize skyviews and sunlight in the space”. On the plain words, this means that outdoor amenity space can only be located on the tops of towers or slab buildings: no balconies or amenity space on a podium level would be permitted (because neither skyviews nor sunlight can be “maximized” when the space is adjacent to building mass). This interpretation is not, of course, reasonable but when you cannot apply the plain words a subjective interpretation is necessarily inserted, and ambiguity is the outcome. 8.Legal Issues The City purported to process the Proposed Plan through Section 26 of the Planning Act, the effect of which is that no appeal thereof to the Local Planning Appeal Tribunal exists. NHD submits that this is not supported by law. The Proposed Plan is a secondary plan. It is thus by definition geographically limited, not comprehensive, and the subject matter otherwise therein is self-evidently does not meet the statutory requirements for a “revision” pursuant to Section 26 of the Planning Act. If it were held to be so, any municipality could invoke Section 26 for any official plan amendment and thus shield such official plan amendment from appeal. Furthermore, Section 9.4.5 explicitly ties the proposed exaction of “contributions” pursuant to Section 37 of the Planning Act to the value of increased density. This cannot be a land use planning policy goal: there is no nexus to the implications of the proposed development in any planning sense. It thus cannot be justified under the Planning Act. Conclusion As it is evident from the foregoing, the Proposed Plan discourages intensification, hurts housing affordability and not only does it not promote the efficient use of community service facilities, it provides a platform for TDSB to effectively thwart Ministry of Education policy directed at the efficient use of TDSB resources. It is thus inconsistent with the Provincial Policy Statement and does not conform to the Growth Plan for the Greater Golden Horseshoe 2017.  Given the range of deficiencies in the Proposed Plan, we would respectfully suggest either that the Ministry undertake an extensive consultative program prior to modifying and approving same or to not render any decision. This would permit interested parties to appeal the non-decision to the Local Planning Appeal Tribunal where the matter could be mediated or, failing that, litigated. Yours truly, McCarthy Tétrault LLP John A.R. Dawson