November 28, 2018 Via Email…

November 28, 2018 Via Email and Courier Ministry of Municipal Affairs and Housing Municipal Services Division Municipal Office - Central Ontario 777 Bay Street, Floor 13 Toronto ON M5G 2E5 Dear Sirs/Mesdames: Re:Proposed City of Toronto Official Plan Amendment No. 406 (By-law 1111-2018) (the “Proposed Amendment”) EBR Registry Number: 013-3485 Ministry Reference Number: 20-OP-178646 We are counsel to the parties identified in Appendix “A” (the “Companies”), all of whom have an interest in certain respective properties and/or filed site-specific development applications prior to the adoption of the Proposed Amendment by City Council. Each of the Companies submitted comments to the City in the course of the public consultation process identifying various concerns with respect to the Proposed Amendment. Such comments include our letter, dated June 26, 2018 (attached hereto), which was filed on behalf of a number of the Companies. The concerns set out in the attached letter, and in the other comments submitted on behalf of the Companies during the public consultation process, were not addressed by the Proposed Amendment, in the form adopted by City Council, from the Companies’ perspective. Accordingly, and for the additional reasons set out herein, the Proposed Amendment, as adopted, is not appropriate from a land use planning policy perspective and should be significantly modified before it is approved, in whatever forum that may ultimately be. In addition, we submit that there are legal issues attending the Proposed Amendments that must be addressed prior to its approval. Further, as set out in our previous submissions to the City, given that the Companies each had an interest in certain properties and/or filed development applications prior to City Council’s adoption of the Proposed Amendment, we submit that the Proposed Amendment should be modified to exclude each of the properties identified in Appendix “A”. In the absence of the requested site-specific exemptions, the Companies continue to have concerns with respect to the Proposed Amendment. The following are the Companies’ general categories of land use planning policy concerns with respect to the Proposed Amendment, in the form adopted by City Council, 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 unnecessarily restrictive and/or too arbitrary. 3.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. 4.The proposed imposition of parkland provisions which are inappropriate, including a policy which would effectively provide unfettered discretion to the municipality in enacting a parkland dedication by-law, without regard for the potential negative implications for Provincial intensification objectives. 5.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. 6.The limitation of new residential development, in certain areas, to that permitted under existing zoning. 7.The proposed imposition of strict requirements, in certain areas, for maintaining or increasing the gross floor area of certain non-residential uses. 8.The proposed imposition on building (including interiors) and site programming of requirements for amenity space. The foregoing will be addressed in turn, followed by commentary on the more purely legal issue of the proper Planning Act route for approval of the Proposed Amendment. 1.The Taking of Private Property (a)The appropriation of private interests in land: The Proposed Amendment includes numerous policies 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. Downtown Plan Sections 8.5, 8.11, 9.1.2, 9.2, 9.3, 9.4, 9.5, 9.7). These provisions very generally fall into two categories. The first is, for practical purposes, widenings of public sidewalks, with reference to a specific numerical standard. The second category is for similar widenings, but imprecisely described, and other enhancements to the public realm including POPS and forecourts. An immediate issue is that the taking of any property must have a basis in law, and the Proposed Amendment 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 desirable intensification is discouraged. (b)The appropriation of private property, financial and otherwise: The Proposed Amendment 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. Downtown Plan Sections 5.2, 10.3, 10.5, 10.9, 10.11). Further, there is no direction or suggestion for how such “contribution” relates to the development from which it is to be exacted. We also note that the City seeks, in Section 10.1, to elevate the status of a non-statutory instrument, providing that the “Downtown Community Services and Facilities Strategy” will “guide” the provision of community service facilities. This is contrary to law and inconsistent with existing official plan policy which clearly demarcates limits to the application of such non-statutory instruments. 2.Built-Form Restrictions The Proposed Amendment would provide, in addition to the detailed and prescriptive built-form regime set out in the proposed official plan amendment No. 352 and its implementing zoning which a priori discourages intensification and diminishes the opportunity for architectural design, further provisions which serve as restrictions on built-form. In Part 9 of the Downtown Plan, 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 directions to “minimize” shadows and “maximize” 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. Further, the a priori restriction of floor plate sizes for non-residential buildings to a floor plate of 750 square meters would effectively discourage commercial office development as there is very little market demand for such product in major office centres. 3.The Timing of Development and Community Service Facilities The Proposed Amendment includes holding provisions providing for the delay of development pending the provision community service facilities (e.g. Downtown Plan Section 14.8, dovetailing with Section 5.2). 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 apparent/implied inclusion of public schools in the definition of “community service facility” is particularly problematic in this respect. 4.Housing Mix Part 11 of the Proposed Amendment sets out housing policies. The proposed unit mix and size requirements will have a negative impact on affordability contrary to Provincial policy, which will be exacerbated in the event that as a result of other city initiatives 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 the ability of a developer or landlord to tailor the building program to the market or the neighbourhood is limited. This means less efficiency in the provision of both private and public services. 5.Parkland Section 7.4.1 of the Proposed Amendment purports to require the City to adopt a new parkland dedication by-law, with the sole constraint that the alternate rate(s) would be “commensurate with the intensity of development”. We submit that parameters for the required dedication of parkland “taking” should be established in the Proposed Amendment 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 7.4.2 and 7.4.3 collectively is to require off-site parkland dedication when desired by the City. We submit that such cannot be required as a matter of law, so either such sections should be deleted or revised. We also think it should be noted that Section 7.4.3, which requires development adjacent to a park to provide certain additional setbacks or incur additional construction costs if there are facing windows, is inconsistent with Section 7.4.6 which purports to require windows to provide for “increasing the passive surveillance and safety of the parks”. This is potentially a significant issue given that Section 7.42.1 clearly sets out that on-site parkland will be City’s first priority to meet dedication requirements. 6.Limitation on Residential Development The location of residential development in close proximity to commercial development is mutually beneficial to both. The prospect of workers having the option of a short commute is often an attractive feature for commercial tenants. Further, residential uses typically attract other amenities which are also amenities for the users of commercial office space (e.g. convenience retail, services). Thus we submit that any cap on new residential development in official plan policy in the context of Downtown Toronto will only be counter-productive as it diminishes the attractiveness of the affected area. The arbitrary limitation on residential usage serves to limit opportunities for active transportation and the creation of complete communities and, further, lessens support for public transit and other existing area amenities, all without regard for whether a more intense mix of uses creates material negative impacts on any stakeholder. 7.Requirements to Retain/Increase Non-Residential Uses Policies in the Proposed Amendment such as Downtown Plan Sections 6.2, 6.6, 6.8 and 10.5 require either the retention or an increase of the gross floor area of an identified non-residential use. As set out above, with respect to office uses, in the absence of a demonstrated area-wide loss of office commercial floor space any restriction on the market will be counter-productive. Strict numerical standards for such exacerbate the problem. Since residential and non-residential uses have differing building requirements, to say nothing of differing tenant requirements (which can take the form of such things as separate elevator cores or other building services), accommodating the varied requirements into one development, and particularly into one building, is a real impediment to an intensified use of a property. We note as well that the proposed requirement to maintain in any new development all previously existing gross floor area that would constitute “cultural spaces”, in addition to being unfair to any owner thereof, which now has the market for such space severely restricted, will serve as a strong disincentive going forward to the provision of space to any tenant with a significant linkage to “cultural” activity caught by the policy definition. 8.Building Programming and Interior Design The Proposed Amendment includes “Amenity Space” which would effectively require amenities to be provided within commercial office buildings without regard to tenant-demand for such amenities. This would severely hamper new office buildings in competing for tenants by forcing amenities to be provided which tenants do not necessarily want nor are prepared to pay for. The problem is exacerbated (and this would apply to residential and residential mixed-use projects as well) by the provisions directed at the design of the amenity space, and in particular provisions related to the interior design of buildings. 9.Legal Issues The City purported to process the Proposed Amendment through Section 26 of the Planning Act, the effect of which is that no appeal in respect of the Minister’s decision thereof to the Local Planning Appeal Tribunal exists. We submit that this is not supported by law. The Proposed Amendment is a secondary plan. It is thus by definition geographically limited, not comprehensive, and the subject matter otherwise therein 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. On behalf of two groups of clients, being Rom-Grand Waterfront Limited and associated companies, and Pier 27 Toronto Inc. and associated companies, all as set out in Appendix “A”, we would make one final comment. Their respective properties are located within the Central Waterfront Secondary Plan. On their behalf we further submit that the entire area of the Central Waterfront Secondary Plan should be excluded from the operation of the Proposed Amendment. The Central Waterfront Plan is a comprehensive Secondary Plan intended, from the outset, to work on the context of the “parent” official plan. Implementing agreements have been entered into with the City in good faith in reliance on this framework. The Proposed Amendment introduces new restrictions/requirements. It is unfair and unnecessary to layer new responsibilities over the existing framework. As a final matter, please note that, notwithstanding the foregoing, the objections of Infrastructure Ontario to the Proposed Amendment are limited to the failure thereof to exempt its properties therefrom. Conclusion As is evident from the foregoing, the Proposed Amendment discourages intensification, both commercial and residential, hurts housing affordability and does not promote the efficient use of community service facilities. It thus does not represent good land use planning, is inconsistent with the Provincial Policy Statement and does not conform to the Growth Plan for the Greater Golden Horseshoe 2017. We reiterate that the Companies’ position that the Proposed Amendment should be modified to exclude their respective lands. In the absence of modifying the Proposed Amendments to provide the requested site-specific exemptions, given the range of deficiencies in the Proposed Amendment in their current, we would respectfully suggest that the Ministry undertake an extensive consultative program prior to approving same in order to effectively and meaningfully address the concerns raised herein or, alternatively, not to 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 Cynthia A. MacDougall Appendix “A” PartyProperty (By municipal address) RFT Holdings Corp. Lands within the block bounded by Charles Street West (north), Yonge Street (east), St. Mary Street (south) and St. Nicholas Street (west) Wellesley Residences Corp.50 Wellesley Street East, 31-35 Dundonald Street Widmer Residences Corp. and Plazacorp Properties Limited8- 20 Widmer Street and 28-30 Widmer Street, 309-315 Adelaide Street West Plazacorp Properties Limited20 and 26 Maitland Street, 15 Wellesley Street Tribute (Church Street) Limited70-72 Carlton Street 250 Davenport Holdings Inc.250 Davenport Road RAD (Front-Wellington) Nominee Inc.412, 418, 422, 426, 430, 436, 450, 452, 460,470, 472, 480, 486 Front Street West, 421, 423, 425, 427, 433, 435, 437, 453, 455, 457, 459, and 456 Wellington Street West, 8 Spadina Avenue, 1 and 19 Draper Street Infrastructure Ontario11 and 33 Centre Avenue, 80 Chestnut Street Infrastructure Ontario900 Bay Street (Macdonald Block Complex) 19 Duncan Property Inc. 19 Duncan Street, 219-223 Adelaide Street West Larco Investments Ltd.34-50 King Street, 2 Toronto Street 1 Front Street West Holdings Ltd.1 Front Street West Rom-Grand Waterfront Ltd., 1147390 Ontario Limited and Queen’s Quay Avante Limited178-180 Queens Quay East Pier 27 Toronto Inc., Pier 27 Toronto (West) Inc., and Pier 27 Toronto (North) Inc.7,15, 25R, 29 and 39 Queens Quay East bcIMC Realty Corporation and Quadreal Property GroupLands bounded by King Street (north), Bay Street (west), Yonge Street (east), Wellington Street West (south) including, but not limited to, 187 and 199 Bay Street, 21 Melinda Street, 25 King Street West, 30 Wellington Street and 56 Yonge Street. (Commerce Court) Yonge & Scollard Developments Inc.874-878 Yonge Street, 3-11 Scollard Street Graywood PA GP Inc.350-354 Adelaide Street West, 102-118 Peter Street 2547575 Ontario Inc. 33 and 37 Parliament Street 2046478 Ontario Ltd., 14 Prince Arthur Ltd.10, 14 Prince Arthur Avenue Deltera Inc.420 Dupont Street and 275 Albany Avenue Minto Communities Canada Inc. Minto Communities Inc. Minto Properties Inc.295 Jarvis Street Minto Communities Canada Inc. Minto Communities Inc. Minto Properties Inc.110 Maitland Street