interchange42 said:
Do we have a real estate lawyer (or paralegal, or real estate policy nerd superfan) who can clear up the following please?

As far as I know, and despite what is written in the Planning Rationale that @Msleylar has clipped above says, Toronto does not allow the sale of air rights; that's a New York thing... or at least it has been.

The Goldberg Group quote from the 2024 Provinicial Policy Statement on page 16 of the Planning Rationale that "prioritizing intensification, including potential air rights development" is part of what the Province wants to see in MTSAs, but that PPS is directed at all Ontario municipalities, not just Toronto.

I have no idea if other Ontario municipalities allow air rights to be sold or not, but it's my understanding that Toronto doesn't. By owning 162 Soudan, I believe what the proponents own are its redevelopment potential, and by surrounding the intervening property, the ability to sterilize that redevelopment potential owing to its small size. So, they don't actually own air rights, just the right to redevelop the 162 Soudan property too, no? (Understanding that it too would be too small to actually redevelop.)

42
Click to expand...

I make no claim of expertise; and would still invite such........but.........

To my understanding 'The National Club' sold 'air rights' to Scotia Bank for the construction of Scotia Plaza.

From: https://ontariorealestatesource.com/air-rights-explained/

1744319063707.png

From here: https://www.cba.org/sections/constr...ties-of-air-rights-in-canada-s-urban-landsca/

We get this:

1744319245962.png
 
The rail deck park decision is relevant for its discussion of air rights, though IANAL:


  • [2] By way of summary overview, except for Spadina Avenue and one small portion owned by the City in and on which the Puente De Luz Pedestrian Bridge (“PDL Bridge”) is located, CRAFT owns the air rights above the approximately 150 year-old downtown Toronto rail corridor now owned and operated by CN-TTR. That CN-TTR rail corridor has several tracks and marshalling yards used for the transit of rail freight and passenger trains such as GO Transit and VIA Rail (“Rail Corridor”). The Rail Corridor spans the area from approximately Blue Jays Way adjacent to the Rogers Centre in the east, to Bathurst Street in the west.
  • [3] The CRAFT air rights above the Rail Corridor (“CRAFT Property” or “CRAFT Site”) were first secured by CRAFT from CN-TTR on December 2, 2013 - well after the City bought in 2007 from CN-TTR solely the modest slice of air rights the City required to construct the PDL Bridge. The City owns Bathurst Street as well as the PDL Bridge and Spadina Avenue and all air rights above them. Spadina Avenue, like the PDL Bridge, bisects the CRAFT Property from roughly north to south. Blue Jays Way borders the eastern edge of the CRAFT Site. It is a street located on land leased by the City which also is roughly oriented in a north to south direction as it curves around the Rogers Centre, which is a well-known large sports stadium and hotel complex.

Colloquially, planners often refer to the use of Limiting Distance Agreements as securing "air rights" since they in effect sterilize lands above certain heights noted in the agreement. These are certainly a tool the City has supported in the past to secure reduced tower setbacks. I'm not sure what the case is with this application though.
 
Northern Light said:
I make no claim of expertise; and would still invite such........but.........

To my understanding 'The National Club' sold 'air rights' to Scotia Bank for the construction of Scotia Plaza.

From: https://ontariorealestatesource.com/air-rights-explained/

View attachment 643168
From here: https://www.cba.org/sections/constr...ties-of-air-rights-in-canada-s-urban-landsca/

We get this:

View attachment 643172
Click to expand...
That was in the early 1980s. Interesting that you had to go so far back for an example! And then there's...
Msleylar said:
The rail deck park decision is relevant for its discussion of air rights, though IANAL:


  • [2] By way of summary overview, except for Spadina Avenue and one small portion owned by the City in and on which the Puente De Luz Pedestrian Bridge (“PDL Bridge”) is located, CRAFT owns the air rights above the approximately 150 year-old downtown Toronto rail corridor now owned and operated by CN-TTR. That CN-TTR rail corridor has several tracks and marshalling yards used for the transit of rail freight and passenger trains such as GO Transit and VIA Rail (“Rail Corridor”). The Rail Corridor spans the area from approximately Blue Jays Way adjacent to the Rogers Centre in the east, to Bathurst Street in the west.
  • [3] The CRAFT air rights above the Rail Corridor (“CRAFT Property” or “CRAFT Site”) were first secured by CRAFT from CN-TTR on December 2, 2013 - well after the City bought in 2007 from CN-TTR solely the modest slice of air rights the City required to construct the PDL Bridge. The City owns Bathurst Street as well as the PDL Bridge and Spadina Avenue and all air rights above them. Spadina Avenue, like the PDL Bridge, bisects the CRAFT Property from roughly north to south. Blue Jays Way borders the eastern edge of the CRAFT Site. It is a street located on land leased by the City which also is roughly oriented in a north to south direction as it curves around the Rogers Centre, which is a well-known large sports stadium and hotel complex.

Colloquially, planners often refer to the use of Limiting Distance Agreements as securing "air rights" since they in effect sterilize lands above certain heights noted in the agreement. These are certainly a tool the City has supported in the past to secure reduced tower setbacks. I'm not sure what the case is with this application though.
Click to expand...
…this, which is different: the "air rights" here are not being moved from one site to another, they are staying right where they are above the rails, it's just that someone other than the owner of the rails and land below them has purchased them and is proposing to build right where that air already is!

Back to @NL's example though… IIRC, there is possibly one more recent similar example: Spire. Did they not transfer air rights from St James Cathedral, kitty-corner across the intersection? That would have been the early 2000s. I'm having trouble corroborating that, but if right, that's the last time I can remember something of that nature happening here. If it were still a thing, it would happen all the time, as everyone's always arguing for more height, and if there were a mechanism that made it more certain you would get that height, you would use it in the process of planning the proposal.

Instead though, we've been using Government population density policies to argue why, either with the City directly or via the OMB/OLT, even though zoning has remained quite restrictive, property X should be allowed density Y on it, namely so we can meet the government density targets. We don't go buying up other people's density as we don't need to pay for it, just argue for it!

@Msleylar is right re: LDAs: we do pay abutting property owners to give up their ability to go high, when our own property is not large enough to fit the tower we are proposing within setbacks from the property line that City Planning wants to see, but that's only for abutting property owners. While an LDA effectively stops the abutting (and compensated) property owner from building upwards, "sterilizing" their site, that is more about preserving sunlight to windows and limiting shadows, and less about grabbing the next site's density, as you can just argue for the density on a policy basis for your own property.

In the end, we're not really doing the New York air rights thing, and buying up all the buildable space from a potentially amoeba-shaped collection of properties within eyesight of ours. Instead, we're just arguing our way though cases, at the OLT if the City is not persuaded. It remains to be seen here whether the City will be persuaded that by owning the property to the east of the property they don't own, that they don't need an LDA with the intervening property owner, as they've been effectively sterilized by being somewhat encircled. And if the City isn't persuaded, it will be interesting to see if the OLT is or isn't. I think approving that would be a problematic precedent to set as it could turn property assembly into quite the quagmire.

42
 
interchange42 said:
.....
Back to @NL's example though… IIRC, there is possibly one more recent similar example: Spire. Did they not transfer air rights from St James Cathedral, kitty-corner across the intersection? That would have been the early 2000s. I'm having trouble corroborating that, but if right, that's the last time I can remember something of that nature happening here. If it were still a thing, it would happen all the time, as everyone's always arguing for more height, and if there were a mechanism that made it more certain you would get that height, you would use it in the process of planning the proposal.
42
Click to expand...

I wonder who might be a source for such information? Hmmmm

LOL

1744382945854.png


One can find a further reference to this here:

1744383007919.png

From:: https://pierrecarapetian.com/our-to...nto-Canada-2-Bedrooms-2-Bathrooms-USD879-000/
 
interchange42 said:
Do we have a real estate lawyer (or paralegal, or real estate policy nerd superfan) who can clear up the following please?

As far as I know, and despite what is written in the Planning Rationale that @Msleylar has clipped above says, Toronto does not allow the sale of air rights; that's a New York thing... or at least it has been.

The Goldberg Group quote from the 2024 Provinicial Policy Statement on page 16 of the Planning Rationale that "prioritizing intensification, including potential air rights development" is part of what the Province wants to see in MTSAs, but that PPS is directed at all Ontario municipalities, not just Toronto.

I have no idea if other Ontario municipalities allow air rights to be sold or not, but it's my understanding that Toronto doesn't. By owning 162 Soudan, I believe what the proponents own are its redevelopment potential, and by surrounding the intervening property, the ability to sterilize that redevelopment potential owing to its small size. So, they don't actually own air rights, just the right to redevelop the 162 Soudan property too, no? (Understanding that it too would be too small to actually redevelop.)

42
Click to expand...
Correct. That horse trading is not a thing we do here, currently. I don't even know how the concept of "air rights" - or the sale and transfer of the as-of-right FSI from one plot to another - would even work in the Toronto planning context. As Interchange correctly notes, we do make use of LDAs or Limiting Distance Agreements. Whereas 'air rights' sell the vertical permissions, LDA's sell horizontal. An LDA permits an adjacent owner to ignore setback requirements and have the building come closer to the lot line in exchange for a one time payment. This neuters any development potential on the seller's lot.
Northern Light said:
I make no claim of expertise; and would still invite such........but.........

To my understanding 'The National Club' sold 'air rights' to Scotia Bank for the construction of Scotia Plaza.

From: https://ontariorealestatesource.com/air-rights-explained/

View attachment 643168
From here: https://www.cba.org/sections/constr...ties-of-air-rights-in-canada-s-urban-landsca/

We get this:

View attachment 643172
Click to expand...
There are some historic cases of this - as Interchange notes below, Sp!re and St. James - but it's not something that's contemplated in the Planning Act (in fact, the word "air" or the phrase "air right" appear precisely 0 times).
Msleylar said:
The rail deck park decision is relevant for its discussion of air rights, though IANAL:


  • [2] By way of summary overview, except for Spadina Avenue and one small portion owned by the City in and on which the Puente De Luz Pedestrian Bridge (“PDL Bridge”) is located, CRAFT owns the air rights above the approximately 150 year-old downtown Toronto rail corridor now owned and operated by CN-TTR. That CN-TTR rail corridor has several tracks and marshalling yards used for the transit of rail freight and passenger trains such as GO Transit and VIA Rail (“Rail Corridor”). The Rail Corridor spans the area from approximately Blue Jays Way adjacent to the Rogers Centre in the east, to Bathurst Street in the west.
  • [3] The CRAFT air rights above the Rail Corridor (“CRAFT Property” or “CRAFT Site”) were first secured by CRAFT from CN-TTR on December 2, 2013 - well after the City bought in 2007 from CN-TTR solely the modest slice of air rights the City required to construct the PDL Bridge. The City owns Bathurst Street as well as the PDL Bridge and Spadina Avenue and all air rights above them. Spadina Avenue, like the PDL Bridge, bisects the CRAFT Property from roughly north to south. Blue Jays Way borders the eastern edge of the CRAFT Site. It is a street located on land leased by the City which also is roughly oriented in a north to south direction as it curves around the Rogers Centre, which is a well-known large sports stadium and hotel complex.

Colloquially, planners often refer to the use of Limiting Distance Agreements as securing "air rights" since they in effect sterilize lands above certain heights noted in the agreement. These are certainly a tool the City has supported in the past to secure reduced tower setbacks. I'm not sure what the case is with this application though.
Click to expand...
The Rail Deck Park decision used this term (incorrectly, IMO) because it was a strata agreement which contemplates one use being built entirely on top of the other. This is extremely rare in Toronto and even then, we normally just secure encroachment agreements for that kind of thing.
interchange42 said:
That was in the early 1980s. Interesting that you had to go so far back for an example! And then there's...

…this, which is different: the "air rights" here are not being moved from one site to another, they are staying right where they are above the rails, it's just that someone other than the owner of the rails and land below them has purchased them and is proposing to build right where that air already is!

Back to @NL's example though… IIRC, there is possibly one more recent similar example: Spire. Did they not transfer air rights from St James Cathedral, kitty-corner across the intersection? That would have been the early 2000s. I'm having trouble corroborating that, but if right, that's the last time I can remember something of that nature happening here. If it were still a thing, it would happen all the time, as everyone's always arguing for more height, and if there were a mechanism that made it more certain you would get that height, you would use it in the process of planning the proposal.

Instead though, we've been using Government population density policies to argue why, either with the City directly or via the OMB/OLT, even though zoning has remained quite restrictive, property X should be allowed density Y on it, namely so we can meet the government density targets. We don't go buying up other people's density as we don't need to pay for it, just argue for it!

@Msleylar is right re: LDAs: we do pay abutting property owners to give up their ability to go high, when our own property is not large enough to fit the tower we are proposing within setbacks from the property line that City Planning wants to see, but that's only for abutting property owners. While an LDA effectively stops the abutting (and compensated) property owner from building upwards, "sterilizing" their site, that is more about preserving sunlight to windows and limiting shadows, and less about grabbing the next site's density, as you can just argue for the density on a policy basis for your own property.

In the end, we're not really doing the New York air rights thing, and buying up all the buildable space from a potentially amoeba-shaped collection of properties within eyesight of ours. Instead, we're just arguing our way though cases, at the OLT if the City is not persuaded. It remains to be seen here whether the City will be persuaded that by owning the property to the east of the property they don't own, that they don't need an LDA with the intervening property owner, as they've been effectively sterilized by being somewhat encircled. And if the City isn't persuaded, it will be interesting to see if the OLT is or isn't. I think approving that would be a problematic precedent to set as it could turn property assembly into quite the quagmire.

42
Click to expand...
Correct. We just don't do this kind of thing in Toronto and Goldberg should know better than to use that terminology in a report. It's colloquial at best and, professionally, belies that the user doesn't actually know what they're talking about.
 
More ruminating on this site:

I didn't want to muddy the waters of my air rights posts by getting into the other issues here, but I should acknowledge them.

Agreed with members above, that the micropark proposed here is ridiculous, and maybe even the single worst parkland dedication I have ever seen proposed in this city. For it to already be effectively designed as a paved entry area other than for three small planter gardens, and essentially act as the front walk for the residential lobby and for two fire escape doors, one on either side of the lobby doors... ...it surprises me that they did not also propose that the area that the driveway crosses the 6m-wide Soudan frontage should not also be considered parkland. Go nuts and claim you've given over even more of the lot to the City! It's already staggering gall that allowed their current proposal to be put forward, so why not fully commit to the offence?! So close to fully offensive, shoulda gone for broke...

The 10.5m separation distance to the west is interesting, partly because the 19-storey Distinction Condos at 11 Lillian were allowed to be built within 4m of their lot line. How did they get away with that at the time? The Tall Buildings Guidelines were created in 2012, and 2013 was when Distinction's rezoning was initially sought, and at the time, Planning wasn't so sure that a 17-storey building was appropriate for the site. By 2015, however, Planning recommended approval of the application with the building reduced to 14 storeys. So, how did Planning rationalize the 4m setback" Here's how they did it:

"In this case, the proposal is for a tall building of 14 storeys with a tower floor-plate of 662 square metres, which is a relatively small "tall" building with less than the typical 750 square metre floor plate. As a result, Planning staff are of the opinion that it is not essential to fully achieve the setback and separation distance guidelines provided that their intent is maintained and impacts are mitigated appropriately, taking into consideration the context and circumstances of adjacent sites.​
​
The proposed tower setback of 4 metres to the east property line plus the setbacks of the existing co-op building at 148 Soudan Avenue would establish a separation to the co-op building ranging from 9.79 to 11.48 metres. In addition, the northeast and northwest corners of the proposed tower have been chamfered which marginally increases the setbacks of the tower at those points and allows increased light and oblique sky views into and from the units in the existing co-op building at 148 Soudan Avenue.​
​
The lands east of the subject site at 148 Soudan Avenue contain a 3.5-storey, 34-unit co-op apartment building. Given that the building at 148 Soudan Avenue is a co-op it may be less likely to be redeveloped than a group of single detached and/or semi-detached houses or a small rental apartment building."​

So, Planning figured the short 3.5 storey co-op* wouldn't be redeveloped, but here we are... I suppose we're supposed to see the 6.5m distance from the lot line at 148 as more generous than the 4m distance for Distinction. Essentially, the existing 3.5 storey co-op is about that distance from the lot line, so they're going for that again. The tower above though, has 904m2 floor-plates. If they carved about 5 metres off its east-west width, they would have the standard 750m2 floor-plate, and we'd have a 15.5m separation distance, which would be quite a bit better... but still not what the City looks for. For the record, as this tower is proposed with 6 elevators, I am in favour of exempting the m2 of the 5th and 6th elevator shafts from the floor-plate size, but if you carve off 5 more metres for better separation, then you probably only need 5 elevators.

Anyway, I just wanted to vent about those issues too. Done.

42

*All recent docs call it a co-ownership building, not a co-op.
 
Last edited:
Looks like the purchase price on this was $23M and transacted April 28th.

+/- 23,000 SF rentable on an older building with 34 units, so certainly purchased on the basis of development. Stafford Berwick deal a lot cleaner at a lower price point.

I don't buy the argument that ownership of 162 allows for sterilization of an actually viable development site to the east. Bad planning.
 
DF416604 said:
Looks like the purchase price on this was $23M and transacted April 28th.

+/- 23,000 SF rentable on an older building with 34 units, so certainly purchased on the basis of development. Stafford Berwick deal a lot cleaner at a lower price point.

I don't buy the argument that ownership of 162 allows for sterilization of an actually viable development site to the east. Bad planning.
Click to expand...
so they can just get it approved and than sell off 162 in the future afterwards or are they going to put some sort of restrictive height covenant on the property for future owners. Why dont they just turn 162 into parkland than..
 
ProjectEnd said:
Correct. That horse trading is not a thing we do here, currently. I don't even know how the concept of "air rights" - or the sale and transfer of the as-of-right FSI from one plot to another - would even work in the Toronto planning context. As Interchange correctly notes, we do make use of LDAs or Limiting Distance Agreements. Whereas 'air rights' sell the vertical permissions, LDA's sell horizontal. An LDA permits an adjacent owner to ignore setback requirements and have the building come closer to the lot line in exchange for a one time payment. This neuters any development potential on the seller's lot.

There are some historic cases of this - as Interchange notes below, Sp!re and St. James - but it's not something that's contemplated in the Planning Act (in fact, the word "air" or the phrase "air right" appear precisely 0 times).

The Rail Deck Park decision used this term (incorrectly, IMO) because it was a strata agreement which contemplates one use being built entirely on top of the other. This is extremely rare in Toronto and even then, we normally just secure encroachment agreements for that kind of thing.

Correct. We just don't do this kind of thing in Toronto and Goldberg should know better than to use that terminology in a report. It's colloquial at best and, professionally, belies that the user doesn't actually know what they're talking about.
Click to expand...
A couple of notes:

Air rights historically did have a function in the planning act until the mid 2010's I believe - and were very, very rarely used. From what I remember it allowed the sale of existing density from one site to another, subject to municipal approval. Very few projects bothered as you could just... rezone your land for generally less money. There are a few examples (ScotiaPlaza, Sp!re) where the city would have not otherwise agreed to a rezoning of that scale where it "made sense". From what I recall, Toronto at one point had permitted it only on density allocated to heritage structures and significant landmarks.

It all got deleted about a decade ago as it was effectively worthless and was not functionally in use.

Air rights are made famous in NYC, where the city has unamendable FSI limits. This creates situations where developers horse-trade these rights. It doesn't work in Ontario as we have an effectively unlimited process of rezoning to create "new density".

The Rail Deck Park decision incorrectly references it as ORCA owns a "stratified" parcel above the rail corridor (the "air rights"). This isn't a zoning permission, but rather physical ownership of the air above the corridor. This also differs from encroachment agreements, which function almost more like an easement in that the City maintains ownership of the land and air and an encroachment agreement simply permits adjacent private structures to "encroach" into city land. The rail deck development will not "encroach" into the rail corridor, at least beyond support columns which will presumably be secured via easement or modifications to the strata parcel, and will be located entirely in "land", or really "space" for which ORCA owns outright.

In the case of this parcel - they appear to own 162 Soudan and not 160. 160 is too small to develop independently for a tall building, and the applicants wholesale ownership of 162 Soudan means that no tall building can be erected west of that. Using "air rights" in the Planning Rationale is likely referencing the "tower separation" space, a key metric in Toronto highrise design (albeit an abstract one without specific legal mechanisms beyond Limiting distance agreements previously mentioned), just done in a poor way. It is regular practice in Toronto tower justifications to identify that adjacent parcels are not suitable for highrise development (too small ,etc.), enabling reduced tower setbacks on the proposed development.
 
innsertnamehere said:
A couple of notes:

Air rights historically did have a function in the planning act until the mid 2010's I believe - and were very, very rarely used. From what I remember it allowed the sale of existing density from one site to another, subject to municipal approval. Very few projects bothered as you could just... rezone your land for generally less money. There are a few examples (ScotiaPlaza, Sp!re) where the city would have not otherwise agreed to a rezoning of that scale where it "made sense". From what I recall, Toronto at one point had permitted it only on density allocated to heritage structures and significant landmarks.

It all got deleted about a decade ago as it was effectively worthless and was not functionally in use.

Air rights are made famous in NYC, where the city has unamendable FSI limits. This creates situations where developers horse-trade these rights. It doesn't work in Ontario as we have an effectively unlimited process of rezoning to create "new density".

The Rail Deck Park decision incorrectly references it as ORCA owns a "stratified" parcel above the rail corridor (the "air rights"). This isn't a zoning permission, but rather physical ownership of the air above the corridor. This also differs from encroachment agreements, which function almost more like an easement in that the City maintains ownership of the land and air and an encroachment agreement simply permits adjacent private structures to "encroach" into city land. The rail deck development will not "encroach" into the rail corridor, at least beyond support columns which will presumably be secured via easement or modifications to the strata parcel, and will be located entirely in "land", or really "space" for which ORCA owns outright.

In the case of this parcel - they appear to own 162 Soudan and not 160. 160 is too small to develop independently for a tall building, and the applicants wholesale ownership of 162 Soudan means that no tall building can be erected west of that. Using "air rights" in the Planning Rationale is likely referencing the "tower separation" space, a key metric in Toronto highrise design (albeit an abstract one without specific legal mechanisms beyond Limiting distance agreements previously mentioned), just done in a poor way. It is regular practice in Toronto tower justifications to identify that adjacent parcels are not suitable for highrise development (too small ,etc.), enabling reduced tower setbacks on the proposed development.
Click to expand...
Scotia is especially interesting because Campeau also transferred rights from the lots that would become WaterPark Place I & II (10 and 20 Bay Street) to 40 King to get it as close as possible to the Reichmann's dominating FCP.
 
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Community Consultation Meeting - 148-158 Soudan Avenue​


Tuesday, June 24, 2025 6:00 PM - 7:30 PM
(UTC-04:00) Eastern Time (US & Canada)

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Agenda​

A Community Consultation Meeting to discuss the Zoning By-law Amendment Application located at 148-158 Soudan Avenue.
 
Any ‘outcome’ from the consultation meeting?

It sounds like they need to go back to the drawing board.

Pronto.
 
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