Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 12, 2021

CASE NO: PL200090

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Southbridge Health Care GP Inc..

Subject: Application to amend Zoning By-law No.38-2007, as amended Refusal or neglect of the Town of Shelburne to make a decision

Existing Zoning: Residential Type Two

Proposed Zoning: Residential Type Two Exception Two

Purpose: To permit a parking lot

Property Address/Description: 104 Robert Street

Municipality: Town of Shelburne

Municipality File No.: Z19/03

OLT Lead Case No.: PL200090

OLT Case No.: PL200090

OLT Case Name: Southbridge Health Care GP V. Shelburne (Township)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Site Plan

Property Address/Description: 104 Robert Street

Municipality: Town of Shelburne

OLT Lead Case No.: PL200090

OLT Case No.: PL200091

Heard: March 30-31, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Southbridge Health Care GP Inc.	Eric Davis
Town of Shelburne	David Germain

DECISION DELIVERED BY M. ARPINO WITH AN ORDER AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a hearing of the merits the appeals in the aforenoted case. Southbridge Health Care GP Inc. (“Appellant”) has appealed to the Tribunal pursuant to s. 34(11) and s. 41(12) of the Planning Act arising from the Town of Shelburne’s (the “Town”) failure to render a decision on a Zoning By-law Amendment Application (“ZBA”) and a Site Plan Application (“SPA”) herein collectively referred to as the “Appeal”.

2The Appellant submitted the ZBA and related SPA to facilitate construction of a surface Parking Area consisting of 17 parking spaces (“Parking Area”) and a landscaped garden (“Garden”).

3The Parking Area and Garden are proposed to be located on the vacant land at 104 Robert Street, which is approximately 1,073 square metres (“m²”) with frontage on Robert Street, Owen Sound Street and William Street. (the “Subject Property”).

4The Subject Property is located in the County of Dufferin (the “County”). It is directed by the Provincial Policy Statement 2020 (the “PPS”), the Growth Plan for the Greater Golden Horseshoe, 2020 ( the “Growth Plan”). The Subject Property is also regulated by the County Official Plan (the “County OP”) and the Town Official Plan (“Town OP”)and the Town Zoning By-law No. 38-2007 (the “Zoning By-law”). The aforenoted are collectively referred to as the “Policy Regime.”

5The Subject Property is designated Urban Settlement Area in the County OP. It is designated Mixed-Use and Residential in the Town OP; it is within the built boundary of the Town and is zoned Residential Type Two (R2) in the Zoning By-law.

6The Shelburne Long Term Care and Retirement home (“Shelburne LTC.”) is home to approximately 88 long term care and retirement residents. It employs approximately 73 people. There are 42 on-site parking spaces at the Shelburne LTC facility for staff and visitors.

7The Shelburne LTC. was previously located on the Subject Property. Approximately ten years ago it was relocated to 200 Robert Street which is east of the Subject Property. The Parking Area is intended to accommodate overflow parking demand of the Shelburne LTC.

8The matter before the Tribunal has a long history. In 2010 the previous owner of the Subject Property sought to construct 17 parking spaces and a Garden on it. The previous owner submitted a zoning By-law Amendment Application and an Application for Site Plan Approval. Town Council did not render a decision on the 2010 applications, the previous owners did not appeal the non-decision.

9The Tribunal was informed that the ZBA and SPA are similar to the previous applications with the exception that the Appellant changed the site plan to include changes which the Town requested.

10The purpose and effect of the ZBA is to rezone the Subject Property from Residential R2 to Residential R2-2.

11The site-specific zone would permit use of the Subject Property as parking area with a maximum of 17 parking spaces and a landscaped memorial garden.. The ZBA would exempt the Subject Property from the R2 Regulations as follows:

a. a reduced planting strip on the north side of the proposed parking area of 1.0 metres; the Zoning By-law requires a minimum of 3.0 metres adjacent to an interior side or rear lot line of a lot in a residential zone; and

b. a reduced planting strip on the south side of the proposed parking area of 0.78 metres, whereas the Zoning By-law requires a minimum of 3.0 metres adjacent to a public street of a lot in a residential zone; and

c. a parking area configuration with an increased minimum driving aisle width of 3.6 metres as opposed to the 3.5 metres required by the Zoning By-law.

12The ZBA was given first and second reading on August 26, 2019; the third and final reading of the ZBA was deferred until the Site Plan was approved by Town Council.

13The Site Plan was considered by Council on September 9, 2019. A motion to approve the Site Plan ended in a tie vote with one member of Council having abstained from voting. The ZBA did not receive third reading and no decision was rendered regarding the SPA.

14The Parties jointly submitted a Document Book which is Exhibit 1 to the Hearing. Matt Alexander the Senior Planner for the County was summoned by the Appellant to provide testimony at the hearing. The Appellant did not call Mr. Alexander to testify.

15The Tribunal heard evidence from three (3) land use planners. The Town called Nick McDonald. Steve Wever is the Town Planner, he provided testimony under summons, at the request of the Appellant. The Appellant also called Kory Chisolm to provide testimony.

16After reviewing each curriculum vitae and after having considered the submissions of counsel, the Tribunal determined that Mr. McDonald, Mr. Wever and Mr. Chisolm were all qualified to provide expert opinion evidence regarding the land use planning matters before the Tribunal.

ISSUES

17There are two core issues in this matter when determining whether the ZBA is consistent with the PPS, conform to the Growth Plan, the Town OP and the County OP polices regarding development in Settlement Areas.:

1. Does the construction of the Parking Area and Garden accord with provisions of the PPS, the Growth Plan, the County OP, and the Town OP regarding?

a) Intensification

b) -infrastructure management

• Is the Parking Area and Garden efficient use of land?

• Does the Parking Area and Garden sterilize of the Subject Property?

2. Does the Parking Area and Garden conform to the Town OP policies regarding permitted uses for land designated Residential and Mixed Use; - Urban Design and Active Transportation?

INTENSIFICATION

18The Policy Regime defines intensification:

Intensification: means the development of a property, site or area at a higher density than currently exists through:

a) redevelopment, including the reuse of brownfield sites;

b) the development of vacant and/or underutilized lots within previously developed areas; c) infill development; and d) the expansion or conversion of existing buildings.

19The Policy Regime provides that development and growth in Settlement Areas shall be based on intensification where possible. They concurred that Intensification requires higher density than currently exists. There was a fundamental disagreement regarding the determinative factors of higher density.

20Mr. McDonald opined that higher density is determined by an increase in the number of residential units, or the creation of jobs, or an increase in gross floor area that could be used for any purpose. He stated that these are the only metrics of higher density. Mr. McDonald did not provide policy basis or other foundation for his opinion.

21Mr. Wever testified that intensification must be assessed in an “holistic” manner. He stated that intensification is determined by examining the entirety of a development, to consider its viability or how the integral parts or function of the development are compatible with or facilitate the functionality of the Settlement Area or the community as a whole.

22He stated that this approach is reflected in the County OP s. 3.4.2 d) which provides:

The following criteria will assist the County and local municipalities in the evaluation and consideration of applications for intensification:…

ii. the proposed development provides a diverse and compatible mix of land uses including residential uses and potentially commercial or employment uses, to support vibrant neighbourhoods;…

viii. the development proposal provides for high quality public open spaces with site design and urban design standards that create attractive and vibrant places;…

ix. the proposed development is compatible with the existing development and the physical character and scale of adjacent buildings, streetscapes, and surrounding neighbourhood, and provides appropriate transition of built forms to adjacent uses;…”

23Mr. Wever stated that the Shelburne LTC is integral to the Town. He testified that it has a critical need for additional parking which has been outstanding for years. He stated that the Parking Area and Garden is a development based on intensification because it facilitates the viability of the Shelburne LTC. and addresses a community issue regarding parking.

24Mr. Wever testified that the Parking Area and Garden is a development at a higher density because the Subject Property is not used for any purpose. He stated people would use the Parking Area to park their vehicles and they would enjoy the Garden. It was his opinion that the net result would be intensification of use of the Subject Property.

25Mr. Chisolm testified that the Shelburne LTC. is a significant operation which is beneficial to the Town. He stated that deficient parking is an operational issue for the Shelbourne LTC.

26At paragraph 279 of his witness statement Mr. Chisolm states “No increase in density is proposed.” During cross examination Mr. Chisolm disavowed this statement. He testified that what he had intended to communicate was, that if using “traditional metrics” one would conclude that there is no increase in density from the Parking Area and Garden. Mr. Chisolm testified that an increase in the use of land is a metric of higher density.

27Mr. Chisolm testified that in his professional opinion the of Parking Area and Garden is development of the Subject Property at a higher density through development of a vacant lot and also through facilitating the continued operation of the Shelburne LTC.

Analysis re: intensification

28The Tribunal did not receive evidence that the Shelburne LTC would cease operating if it did not acquire additional parking. The Tribunal did not give weight to the possible closure of the Shelburne LTC.

29It is clear that the Policy Regime encourages intensification where appropriate. The Tribunal found that Mr. McDonald’s list determinators of higher density is too restrictive and does not facilitate a change of use as intensification.

30The Tribunal accepts the professional opinion of Mr. Wever and Mr. Chisolm that the Parking Area and Garden is a development based on intensification because it achieves higher density of the Subject Property than currently exists by an increase in use.

INFRASTRUCTURE MANAGEMENT

EFFICIENT USE OF INFRASTRUCTURE

31PPS s. 1.1.3.2 provides:

Land use patterns within Settlement Areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion; …

32Mr. McDonald testified that the Policy Regime requires the efficient use of infrastructure. He testified that Subject Property is an example of where infrastructure has been provided and the development of residential uses would make the best use of the investments which have been made. It was his opinion that the Parking Area and Garden within the built-up area does not support the efficient use of existing infrastructure. He stated that the Subject Property may be vacant because the Shelburne LTC has no need for it other than for parking. He suggested that a third party might be interested in developing it.

33Mr. Wever acknowledged that the Subject Property is a candidate for both commercial and residential development. He testified that although there were preliminary discussions about developing the Subject Property in the past, he was not aware of anyone interested in developing the Subject Property.

34He informed the Tribunal that there is a long-standing issue regarding the need for sewers in the vicinity of the Subject Property. Mr. Wever testified that it would be prohibitive or problematic for any residential development on the west side of the Subject Property. He also stated that construction of the Parking Area and Garden would not interrupt or require alteration or expansion of existing infrastructure.

35During cross-examination Mr. McDonald acknowledged that he was not aware of the servicing issues in the neighbourhood. He stated that “if the Subject Property were developed maybe the servicing issues could be addressed”.

36Mr. Chisolm testified that the Parking Area and Garden make efficient use of existing infrastructure because it would make use of the Subject Property which is underutilized. He stated that the Shelburne LTC staff drive around the neighbourhood looking for available on-street parking. In his opinion the Parking Area will make street parking available for the neighbourhood and does not require expansion or disruption of infrastructure.

37The Tribunal noted Mr. McDonald’s opinion that the Parking Area and Garden do not facilitate the Town achieving its intensification target. The Tribunal accepts Mr. Wever’s opinion that the Intensification target is applied to the entire Town and not on a site by site basis.

38The Tribunal was provided the uncontroverted testimony of Mr. Wever that municipal services are not readily available to facilitate development of the Subject Property. The Tribunal accepts the evidence of Mr. Chisolm that on occasion staff of Shelburne LTC drive around looking for available parking spaces.

STERILIZATION OF LAND

39Mr. McDonald opined that if allowed to remain vacant, the Subject Property is more available for intensification. He testified that the Parking Area will “sterilize” Subject Property from intensification.

40Neither Mr. Wever nor Mr. Chisolm provided evidence regarding the length of time that the Parking Area would be used. Both Mr. Chisolm and Mr. Wever testified that in their opinion the Parking Area and Garden do not preclude future development of the Subject Property.

41Comments from the County Planning Department (July 12, 2019) provide:

“Based on our review, the applications for a Zoning By-law Amendment and the approval of a Site Plan are consistent with the Urban Settlement Area designation and the related policies in the Dufferin County Official Plan. It is recommended that: •The zoning by-law retain permission for residential land uses on the subject lands;…”

42The Tribunal noted that the County supported the development of the Parking Area and Garden. The County recommended that residential use of the Subject Property should also be permitted. The Tribunal determined that the ZBA would not restrict the Permitted Uses of the Subject Property. Mr. McDonald did not provide policy basis or evidence that the construction of a paved parking area will preclude future intensification of the Subject Property, The Tribunal preferred the opinions of Mr. Wever and Mr. Chisolm that construction of Parking Area and Garden do not preclude future development of the Subject Property as all of the existing Permitted Uses remain.

TOWN OP

LAND USE DESIGNATIONS

43Approval of the ZBA requires that it maintain the general intent and purpose of the Town OP policies regarding land use designations. The Subject Property is designated Mixed Use and Residential. A stand-alone parking area is not directly mentioned as a permitted use in either land use designation.

44Mr. McDonald referred to s. 4.2.2 of the Town OP which are the Objectives of the Residential land use designation:

a) To direct the majority of future housing development to the designated residential areas through intensification, redevelopment and greenfield development on full municipal services to promote compact urban form.

b) To ensure a variety of housing types to accommodate the diverse economic and social needs and desires of the residents.

c) To participate in government programs relating to housing where considered appropriate to the community.

d) To encourage a high standard of urban design for all residential development, that supports pedestrian and cyclist access, safety and convenience.

e) To encourage, and where possible require, the use of energy and water conservation measures, sustainable building technologies, landscape treatments and infrastructure.

f) To protect the existing residential areas adjacent to the downtown core.

g) To encourage and support the intensification of previously developed residential areas in order to optimize the use of land and infrastructure.

45Mr. McDonald stated that the aforenoted policies demonstrate the Town’s intent to promote residential intensification on land which is designated for residential use. He opined that the Parking Area and Garden are not permitted uses of land which is designated for residential use and do not conform to the Town OP objectives.

46Mr. Wever testified that the Garden will add a positive feature to the streetscape and supports pedestrian traffic which aligns with objective (c).

47Mr. McDonald stated that in his opinion the Parking Area does not conform to s. 4.4.2 of the Town OP which are the Objectives of the Mixed Use designation:

a) To provide for a mix of land uses in the Downtown Mixed Use areas as a transitional area between the Commercial Core and the outlying residential neighbourhoods.

b) To direct new mixed use development in a manner that contributes to providing a range of services, housing and employment opportunities to the community and supports the role and function of each mixed use area

c) To encourage a high standard of urban design for all mixed use development that recognizes the cultural heritage value of the downtown core, is compatible with the existing built form and overall character of the area, and supports pedestrian and cyclist access, safety and convenience.

d) To promote mixed use buildings with compatible residential, commercial and office employment uses.

e) To encourage, and where possible require, the use of energy and water conservation measures, sustainable building technologies, landscape treatments and infrastructure.

f) To promote opportunities for intensification and redevelopment in the downtown core.

g) To support the compatible commercial of office employment use of existing dwellings fronting Main Street to the east of the downtown core that will encourage the retention and improvement of these dwellings and maintain the residential character of this corridor.

h) To promote live-work opportunities that reduce the need for daily commuting between areas of housing, commerce and employment.

i) To provide for the integrated development of a mixed use centre with a range of retail and commercial services, supported with housing and local employment opportunities, as a community and regional destination and service centre.

48Mr. McDonald testified the Parking Area and Garden is not a permitted use in the Mixed Use designation. In his opinion the Town identified its vision for the development of land which is designated Residential and Mixed Use and the Parking Area and Garden do not conform with the aforenoted objectives.

49Mr. Wever stated that the Town OP policies regarding the Mixed Use designation intend to ensure that dwellings outside of the downtown core is are maintained. He opined that the Parking Area and Garden provide a suitable transition from the Mixed Use areas to the Commercial Core and the outlying residential neighbourhoods which achieves objective 4.4.2 a). He stated that Parking Area and Garden support the Shelburne LTC. Thereby satisfying the objectives in 4.4.2 b) and g).

50It was Mr. Wever’s opinion that the ZBA conforms to the Town OP policies regarding permitted uses in the Mixed Use and Residential land use designations. He stated that the Parking Area and Garden will support the continued operation of the Shelburne LTC. and address a parking deficiency in the community.

51In cross-examination Mr. Wever testified that the Subject Property can be used as a “stand alone” parking lot. In his opinion the Parking Area would be a secondary use which supports a permitted use, notwithstanding that the permitted use is on a different parcel of land.

52His opinion that the Parking Area is a secondary use to the Shelbourne LTC was based on the proximity of Shelburne LTC and also the significance of the Parking Area to the Shelburne LTC; as such in his opinion the Parking Area maintains the general intent and purpose of the Town OP.

53In cross-examination Mr. Wever acknowledged that the determination of whether the Parking Area is ancillary to the Shelburne LTC across the street was a “judgment call”. He stated that in coming to his opinion he had referred to the Town’s Objectives in Section 3 e) of the Town OP:

SECTION 3 – OBJECTIVES The following section establishes the primary objectives on which the Plan is based. These objectives relate to the entire Town and establish the framework for the remaining policies in the Plan. Each of the objectives is equally important when considering future development. Where situations of uncertainty or conflict arise in the interpretation or implementation of the Plan, reference should be made to these objectives.:….. e) To address issues related to traffic and parking for existing and new development and to ensure that safe and effective pedestrian movement is available throughout the Town.

54He stated that the Parking Area would support the Shelburne LTC by addressing a parking deficiency and as such satisfies Objective (e).

55Mr. Wever stated that the criteria for residential Development in s. 4.2.3.2 do not apply to secondary uses. He referred to s. 4.2.3.3. It was his testimony that the Parking Area and Garden conform to the criteria for Secondary Uses in an area which is designated as Residential and permits low density use, Mr. Wever opined that a secondary use is deemed to have the same permitted density as the primary use, the Shelburne LTC is high density.

56In his witness statement Mr. Chisolm provided his opinion that the Parking Area and Garden conform with the Town OP policies regarding secondary uses. Mr. Chisolm provided his opinion that the Parking Area and Garden would have a positive impact on the residential community by making on-street parking available and the Garden would improve the public realm. He stated that the infrastructure is adequate for the use the Parking Area and Garden are compatible with the neighbourhood. He stated that Site Plan incorporates all the Town’s requested amendments.

57The Tribunal noted s. 1.3.2 of the Town OP which identifies the “key direction” for the Town. It states, “Should uncertainty or conflict arise in the interpretation and implementation of the Plan, reference should be made to the Objectives in Section 3” The Tribunal determined that while the list of Objectives is not all-inclusive, it is significant that one of the Objectives reflects the Town’s “key direction” to address issues related to parking.

58The Tribunal considered the Town OP polices regarding Residential Targets in s. 4.2. of the Town OP and the Minimum targets established for the Town. The Tribunal accepts Mr. Wever’s opinion that the targets are to be achieved across the Town where appropriate, not on a site- by- site basis.

ACTIVE TRANSPORTATION

59PPS Section 1.1.3.2 e) provides:

Land use patterns within settlement areas shall be based on densities and a mix of land uses which: support active transportation;

60A similar provision is included in the Settlement Area Policies in the County OP s. 3.3.1 g) Local municipalities are encouraged to promote the long-term economic prosperity of settlement areas through the following:

i. Promote development within settlement areas that is compact, mixed use, and supports transit and active transportation…”

61Mr. McDonald testified that the Parking Area does not promote Active Transportation. He stated that the Garden might be a walking destination. He noted that it would be privately owned, and public access might not be permitted. There is no indication, through the review of the site plan and the proposed site plan agreement, that the Garden is exclusive.

62Mr. Chisolm and Mr. Wever both testified that the Parking Area and Garden support active transportation. Mr. Wever stated that the Garden would be a high-profile pedestrian destination.

63The Tribunal determined that a landscaped area located on a high-profile corner would be a pedestrian destination. The Tribunal is satisfied that the Parking Area and Garden promote active transportation as required by the Policy Regime.

URBAN DESIGN POLICIES

64The Town OP s. 7.16.4 c) includes specific polices regarding Parking, Access and Circulation:

“…..c) Surface parking areas should be located to the rear or sides of buildings in areas that can be appropriately screened so they do not dominate the streetscape while allowing sufficient visibility to achieve safety and functionality, connected to sidewalks, designed with landscaped islands of sufficient size to ensure growth of vegetation including healthy trees. Exceptions to the location of parking areas will be considered on a site-specific basis where frontage along Provincial Highways or County Roads or other conditions warrant consideration of parking area locations along the street frontage, provided the development addresses the landscaping, design and screening of the parking areas to minimize the streetscape dominance of the parking areas and to allow for sufficient visibility to achieve safety and functionality, pedestrian access, safety and convenience to the satisfaction of the Town…” . Emphasis added.

65In cross-examination Mr. Wever acknowledged that the Parking Area does not align with the policies which stipulate that parking areas should be located to the rear or sides of buildings. He opined that the Garden would screen the Parking Area and add favourably to the streetscape.

66He stated that the Town OP policy which directs parking to the rear of buildings is intended to address circumstances where parking in front of a building would create safety issues. He stated that these safety issues are not applicable because the construction of a building is not being contemplated and the Garden will provide an attractive streetscape. He asserted that due to the location of the Garden; the Parking Area would be hardly visible.

67Mr. Wever testified that the policy is not an absolute direction; it stipulates factors to be considered on a site- by-site basis., It was his opinion that the matter before the Tribunal is a circumstance in which an exception is appropriate.

68The Town raised compliance with s. 7.12 b) of the Town OP as an issue to be adjudicated. Section 7.12 b) provides:

When assessing any development proposal, the Town will give consideration to the following:… b) The need for the development in relation to creating a complete community and having regard to the sustainability policies of this Plan;…”

69The Tribunal does not agree with the Town that the word “need” in s. 7.12 b) represents a threshold test to be satisfied. In making its determination regarding this matter.

70The Tribunal gave no weight to the conflicting evidence regarding the availability of alternative parking in the vicinity of the Subject Property. The Tribunal did not give weight to the evidence which suggested that buildings had been have been removed to facilitate construction of parking areas in the Town.

71Mr. Wever has been working with the Town for 13 years and he provided a thorough analysis of the Town OP policies in the context of the Parking Area and Garden. The Tribunal prefers his professional opinion regarding conformity of the ZBA to the Town OP. The Tribunal finds that the Parking Area and Garden conforms to the Town OP polices.

72The Tribunal accepts the uncontested evidence that the Applicant submitted a site plan which was amended to incorporate the changes suggested by the Town.

COMPLETE COMMUNITIES

73The Policy Regime include policies which encourage development which achieves complete communities. Mr. McDonald opined that the Parking Area and Garden do not align with these policies, he maintained that the Parking Area and Garden would be a missed opportunity to use the Subject Property for mixed use development. The Tribunal does not accept Mr. McDonald’s opinion that future development of the subject Property for mixed use purposes would be thwarted if the Parking Area and Garden are constructed. All of the existing uses for the Subject Property will remain to guarantee any future development potential.

DOES THE ZBA REPRESENT GOOD PLANNING IN THE PUBLIC INTEREST?

74Mr. Chisolm opined that the Parking Area and Garden represent good planning in the public interest. He stated that the Parking Area and Garden will utilize vacant land to support the Shelburne LTC. He also opined that the Garden provides an attractive streetscape and will have a positive impact on the Public Realm.

75Mr. McDonald testified that it would not be in the public interest to approve the ZBA because it would permit serviceable property on a main street with high profile to be underutilized for an undetermined period of time. He stated that it does not promote active transportation and is not good planning in the public interest.

76Mr. Wever stated that the ZBA represents good planning in the public interest. He stated that it would be contrary to public interest to make decisions which could have a detrimental impact to the Town. He acknowledged that he did not have evidence that Shelburne LTC would cease operating if it could not construct the Parking Area and Garden; he said a reasonable inference can be made from the fact that two owners have sought additional parking for the facility.

77The Parties did not provide detailed evidence regarding the Site Plan. The Tribunal heard the uncontested evidence of Mr. Wever and Mr. Chisolm that the Site Plan was amended to include the changes that the Town requested. They each stated that it accords with the Policy Regime and represents good planning in the public interest.

78The Tribunal determined that it would be appropriate to approve the ZBA but to withhold its Order until a Site Plan Agreement is executed regarding the Parking Area and Garden on the Subject Property.

DECISION AND ORDER

79The Tribunal did not give weight to the suggestion that the Shelburne LTC may cease to operate if additional parking is not provided. the Tribunal accepted the evidence of Mr. Chisolm that the Shelburne LTC is experiencing operational challenges that can be addressed by additional parking and accepted his testimony that on occasion people drive around the neighbourhood in search of available parking spaces.

80The Tribunal considered Mr. McDonald’s opinion that it would be preferable for the Subject Property to be developed for residential use. On the weight of the evidence and the aforenoted findings, the Tribunal finds that the greater public interest is better served by permitting the Parking Area and Garden to address the parking issues in the surrounding area.

81The Tribunal did not hear any evidence on a shortage of housing stock in the Town of Shelburne. The Tribunal heard evidence that this particular site has servicing issues. The Tribunal must weigh the need for housing intensification versus the need for off street parking. Given the servicing issue and the need for off street parking, the Tribunal finds that this particular property is better suited for parking in the short term. This determination is based on the knowledge that the development rights remain in place.

82The Tribunal, upon all of the findings made, and the evidence as presented in the hearing, and for those reasons set out herein, finds that the ZBA is consistent with the PPS, conforms to the Growth Plan, the County OP, and the Town OP, represents good planning, in the public interest.

83In making this finding, the Tribunal has had regard to matters of provincial interest as set out in s. 2 of the Planning Act, and the Policy Regime. The Tribunal also had regard to the supporting information and material that was provided to the Town. It is the finding of the Tribunal that the Appeal has merit.

84THE TRIBUNAL ORDERS that the Appeal is allowed, and the Town is directed to amend By-law No. 38-2007 in the form generally as set out in Attachment 1 to this Decision.

85The Tribunal approves the Site Plan in the form generally as illustrated in Attachment 2 to this decision.

86THE TRIBUNAL ORDERS that the Appeal is allowed, on an interim basis, until the parties inform the Tribunal that the Site Plan agreement has been executed.

87This Member may be spoken to, through the case coordinator, if anything arises from this decision.

“M. Arpino”

M. ARPINO

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.