Item - 2022.CC41.12
Tracking Status
- City Council adopted this item on March 9, 2022 without amendments and without debate.
CC41.12 - 169 The Donway West - Request for Directions regarding Ontario Land Tribunal Appeal
- Decision Type:
- ACTION
- Status:
- Adopted on Consent
- Ward:
- 16 - Don Valley East
City Council Decision
City Council on March 9, 2022, adopted the following:
1. City Council adopt the confidential instructions to staff in Confidential Attachment 1 to the report (March 2, 2022) from the City Solicitor.
2. City Council authorize the public release of the confidential instructions to staff in Confidential Attachment 1 to the report (March 2, 2022) from the City Solicitor.
3. City Council direct that the balance of Confidential Attachment 1 to the report (March 2, 2022) from the City Solicitor remain confidential, as it contains advice that is subject to solicitor-client privilege.
The confidential instructions to staff in Confidential Attachment 1 to the report (March 2, 2022) from the City Solicitor, were adopted by City Council and are now public as follows:
1. City Council accept the with-prejudice settlement offer dated February 28, 2021 attached as Public Appendix A to the report (March 2, 2022) from the City Solicitor (the "Settlement Offer") provided that within ten business days of the adoption of this City Council decision, the Don Mills Residents Inc. elects either Part 1a. or Part 1b. below as follows:
a. within ten business days of the adoption of this City Council decision, the Don Mills Residents Inc. withdraws its appeal to the Court of Appeal in the matter CV-19-623680; and provides a written communication to the City Solicitor, undertaking that the organization will not appeal or cause to be appealed the Rezoning and Official Plan Amendment for the lands at 966 Don Mills Road as adopted by City Council on November 9, 2021 to the Ontario Land Tribunal; or
b. within ten business days of the adoption of this City Council decision, the Don Mills Residents Inc. enters into Minutes of Settlement with the City, to the satisfaction of the City Solicitor, in which it agrees that:
i. the Don Mills Residents Inc. will modify its appeal to the Court of Appeal in the matter CV-19-623680, to withdraw its request for injunctive relief/specific performance requiring the construction of the community centre at 966 Don Mills Road and regarding the use of the 17 million dollars (indexed) in Section 37 money related to the community centre;
ii. the Don Mills Residents Inc.'s requests for declaratory relief and a trial to determine consequential (monetary) damages would continue, but an upper limit of $450,000 would be set on the damages that could be claimed by the Don Mills Residents Inc.; and
iii. the Don Mills Residents Inc. will not appeal or cause to be appealed the Rezoning and Official Plan Amendment for the lands at 966 Don Mills Road as adopted by City Council on November 9, 2021 to the Ontario Land Tribunal.
2. City Council authorize the City Solicitor to advise the Ontario Land Tribunal that the City supports the request by owner that the Ontario Land Tribunal revise its decision in matter PL160225 to allow the development proposal to proceed as generally described in the Settlement Offer.
3. Should the Ontario Land Tribunal agree to revise its decision in this matter, City Council authorize the City Solicitor to request the Ontario Land Tribunal to withhold the issuance of any final Order(s) until such time as the Ontario Land Tribunal has been advised by the City Solicitor that:
a. the final form and content of the Zoning By-law Amendments are to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, in consultation with the Chief Engineer and Executive Director, Engineering and Construction Services, and other appropriate divisions;
b. the owner has entered into an agreement pursuant to Section 37 of the Planning Act (the "Section 37 Agreement") and any other necessary agreements, satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor, with such agreement(s) registered on title to 169 The Donway West, in a manner satisfactory to the City Solicitor to secure the community benefits and matters of legal convenience at the owner's expense, as set out in Part 4 below;
c. the owner has, at the owner's expense provided an updated Functional Servicing and Stormwater Management Report; to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and
d) the owner has submitted a complete Site Plan Application to the City.
4. City Council authorize the entering into of an agreement pursuant to Section 37 of the Planning Act as follows, satisfactory to the City Solicitor:
a. the community benefits offered in the Settlement Offer and recommended to be secured in the Section 37 Agreement are as follows:
i. A contribution of four million dollars (indexed) to be put toward a community space of approximately 1,766 square metres (19,000 square feet) of gross floor area to be provided on the first storey of the proposed building at 169 The Donway West (the " Community Space"); the owner shall construct and finish the Community Space at its own cost, inclusive of all fixtures, and shall also provide furnishings and equipment for the Community Space, to a maximum cost of $350,000.00; the Community Space will be conveyed to the City at a nominal cost upon the earlier of completion of the Community Space; registration of a condominium corporation at 169 The Donway; or first occupancy of 169 The Donway and will be operated by the City or a third party operator; and
ii. the Community Space will be finished with flexible meeting/fitness spaces, gymnasium/auditorium area and associated changing rooms and washrooms, administrative space, and an integrated walking track, and the facility will be fully accessible for people with disabilities and will have visible frontage and signage; the City and the owner shall work together to finalize the details of the design, construction and finishes of the Community Space that is acceptable to both parties, prior the issuance of any above grade permits for the building at 169 The Donway West, to the satisfaction of General Manger, Parks, Forestry and Recreation; and
b. the matters to be secured as a legal convenience in the Section 37 Agreement are as follows:
i. a minimum of ten percent three bedroom units and twenty percent two bedroom units shall be provided; and
ii. the parking rate as set out in the Settlement Offer will be supplemented by three additional Travel Demand Management measures agreed to by the owner:
a. one Bikeshare station will be provided (financial contribution of $50,000);
b. preloaded Presto Cards with a value of $150.00 shall be provided to each unit; and
c. five dedicated carshare spaces which shall be located on P1 Level and accessible to the public.
5. City Council approve a development charge credit against the Parks, Forestry and Recreation component of the Development Charges for the constructing and finishing by the owner of the Community Space at 169 The Donway West to the satisfaction of the General Manager, Parks, Forestry and Recreation, the total Parks, Forestry and Recreation component of overall Development Charges for 169 The Donway West is currently estimated at up to $2.89 million based on November 2020 rates; that amount shall be indexed to the date of the pulling of the first above grade building permit (the "Indexed Amount"); if the Parks, Forestry and Recreation component of the Development Charges payable at the time is more than the Indexed Amount, CF/Lanterra shall receive credits equivalent to the actual costs of constructing and finishing the Community Space (less the indexed $4 million) Section 37 contribution to be paid by the owner), to a maximum of the total available Parks, Forestry and Recreation credit; if the Parks, Forestry and Recreation component of the Development Charges payable at the time is less than the Indexed Amount, the difference between the Indexed Amount and the Parks, Forestry and Recreation component will be paid to owner by Parks, Forestry and Recreation from a Section 42 Reserve Fund to offset the actual costs of constructing and finishing the Community Space.
6. City Council amend Item NY26.2 adopted on November 9, 10 and 12, 2021 as follows:
i. Part 5 of Council's decision shall be amended so that it now reads:
5. City Council direct CreateTO and the Executive Director, Corporate Real Estate Management, in consultation with other City divisions, to consider the feasibility of a not-for-profit long-term care facility as a potential future use for the 966 Don Mills Road site and to work with the principals of the Thompson House and Don Mills Residents Inc. on a business case, including fit and requisite funding;
i. Part 6 of the instructions to Staff from City Council shall be amended so that it now reads:
6. City Council direct staff to form a working group on the potential future uses of the public lands at 966 Don Mills Road; the group shall be formed after the City takes possession of the lands and shall include at a minimum 3 members of the executive of the Don Mills Residents Inc. and other members of the community, which shall include the possible use of the lands for the development of a new, non-profit long term care home; the working group shall be consulted at least 3 times before a report on the future use of the lands at 966 Don Mills Road is presented to City Council.
7. City Council authorize the City Solicitor and necessary City staff to take such necessary steps, as required, to implement City Council's decision.
The balance of Confidential Attachment 1 to the report (March 2, 2022) from the City Solicitor remains confidential in accordance with the provisions of the City of Toronto Act, 2006, as it contains advice that is subject to solicitor-client privilege.
Confidential Attachment - Litigation or potential litigation that affects the City or one of its agencies or corporations and advice or communications that are subject to solicitor-client privilege.
Background Information (City Council)
https://www.toronto.ca/legdocs/mmis/2022/cc/bgrd/backgroundfile-222413.pdf
Public Appendix A - Letter from Aird Berlis dated February 28, 2022
https://www.toronto.ca/legdocs/mmis/2022/cc/bgrd/backgroundfile-222414.pdf
Confidential Attachment 1
Communications (City Council)
https://www.toronto.ca/legdocs/mmis/2022/cc/comm/communicationfile-146156.pdf