Maynard v. Mississippi Mills (Town), 2021 CanLII 109379

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 28, 2021

CASE NO(S).: PL210127

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Steve Maynard

Subject: By-law No. BL 11-83

Municipality: Town of Mississippi Mills

OLT Case No.: PL210127

OLT File No.: PL210127

OLT Case Name: Maynard v. Mississippi Mills (Town)

Heard: October 12, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Steven Maynard ("Appellant")

Self-represented

2241497 Ontario Ltd. (Novatech/"Applicant")

Philip Osterhout*

Town of Mississippi Mills ("Town")

Lisa Scheulderman*

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

1This is a hearing of an appeal by Steven Maynard of a decision by the Town of Mississippi Mills (the "Town") to pass a site-specific Zoning By-law ("ZBA") to permit the redevelopment of a shopping center in the Town of Almonte to permit a mixed-use plan including both commercial and residential uses. The Appellant appeals the passing of Mississippi Mills By-law No. 20-113, being a by-law to amend the comprehensive Zoning By-law No. 11-83 as it applies to the property municipally known as 430 Ottawa Street, Mississippi Mills.

2The Appellant has no apparent direct interest in the matter, other than professing to be a concerned citizen; however, the Appellant evidently did make submissions to council respecting the matter.

3The Tribunal finds it particularly noteworthy that the Town approved both a site-specific ZBA and Official Plan Amendment No. 26 ("OPA 26") to permit the subject development. However, the Appellant only appealed the ZBA. At the hearing, the Appellant acknowledged that this was a "mistake" and did not contest that he was outside the statutory timeframe to appeal OPA 26.

4The broader issues to determine of this case include whether the proposed development and corresponding ZBA:

1. Are consistent with the Provincial Policy Statement, 2020;

2. Conform with the County of Lanark's (the "County") and Town's OPs (including OPA 26); and

3. Have regard to matters of provincial interest in accordance with section 2 of the Act and constitute good planning in the public interest.

5Midway through the proceedings, the Appellant scoped his issues to only the following, with reference to the Town's OP:

1. Re: policy 3.6.1, "Goal and Objectives [of the Town OP]", the Appellant took the position that the proposed development and corresponding ZBA do not conform with the fifth objective listed at policy 3.6.1, "[to] ensure that residential intensification, infilling and redevelopment within existing neighbourhoods is compatible with surrounding uses in terms of design", because the proposed 4-story residential building to be located at the back of the property is not compatible with the single-story residences immediately adjacent to the back of the property.

2. Re: policy 3.6.3, "Affordable Housing", the Appellant took the position that the proposed development and corresponding ZBA do not conform with this policy because it does not include any affordable housing.

3. Re: policy 4.2.2.1, "Urban Design: General Policies", the Appellant took the position that the proposed development and corresponding ZBA will not acceptably impact "the character and quality of the surrounding built and natural environment" and more specifically will not adequately "mitigate impacts from noise, odours, traffic, outdoor storage and dust originating from the subject property" (as listed at General Policy no. 5(ii)).

4. Re: policy 4.2.2.1, "Urban Design: General Policies", the Appellant took the position that the proposed development and corresponding ZBA will not acceptably impact "the character and quality of the surrounding built and natural environment" and more specifically will not adequately "minimize the shadowing of adjacent properties" (as listed at General Policy no. 5(vi)).

6The only witness called in the proceedings was the Applicant's Planner, Steve Pentz, who was duly qualified as an expert in Land Use Planning. Mr. Pentz provided uncontested expert testimony in favour of the proposed development and ZBA, as described in greater detail below. It is noteworthy that Mr. Pentz was the only witness called to testify by any of the parties, so the Tribunal relied heavily on his evidence as described below.

7The Appellant's case was effectively limited to questioning Mr. Pentz within the scope of the Appellant's scoped issues listed above. At the same time, the Appellant interjected various opinions of his own on these issues while questioning Mr. Pentz. The Appellant did not submit his lay-opinions as sworn testimony, and was not qualified to do so in any event. The Tribunal therefore notes the Appellant's lay-opinions regarding the subject matter, but attributes very little weight to it.

8For the reasons that follow, the Tribunal dismisses the appeal.

EVIDENCE AND ANALYSIS

Agreed Statement of Facts

9The following are the contents of an Agreed Statement of Facts signed by the Appellant and the Applicant:

1. The subject site is designated as "Settlement Area" by the County OP; designated "Highway Commercial" by the Town OP; and zoned "Shopping Centre Commercial – Special Exception 4" (C4-4) by Zoning By-law 11-83.

2. The subject site is located in a gateway area identified by the Town OP.

3. The subject site is a 2.74-hectare parcel, which contains an existing plaza consisting of approximately 5,128 sqm (55,200 sqft) of commercial space. The plaza is approximately 30% occupied, leaving roughly 3,623 sqm (39,000 sqft) of commercial space vacant.

4. By-law 20-113 serves to re-zone 430 Ottawa to a new Special Exception within the existing Shopping Centre Commercial Zone, subject to a holding provision (C4-xh). The proposed Special Exception permits the following additional uses:

a. Apartment dwelling, low rise;

b. Apartment dwelling, mid rise

c. Dwelling units in the upper storeys of non-residential buildings.

5. The proposed Special Exception also imposes the following provisions:

a. A maximum building height of 15 metres or 4 storeys;

b. A maximum density of 50 units per net hectare;

c. A minimum setback of 60 metres from Ottawa Street, for buildings other than dwellings in the upper storeys of non-residential buildings;

d. A minimum rear yard setback of 26 metres for low- and mid-rise apartment dwellings; and

e. A holding provision prohibiting development until site plan control approval is granted by Council.

6. By-law 20-113 was passed pursuant to sections 34 and 24(2) of the Planning Act on the same date that the Town adopted OPA 26. The purpose of OPA 26 was to introduce the following site-specific highway commercial policy applicable to the subject site:

3.7.3.5 Special Site-Specific Policy for Highway Commercial (430 Ottawa Street)

On lands described as Part Lot 16, Concession 10, geographic Township of Ramsay (430 Ottawa Street), the following provisions shall apply:

1. Medium to high density residential development shall be permitted as an additional use and shall be developed in accordance with the following:

2. A maximum residential density of 50 units per net hectare is permitted. For the purpose of this policy, residential density shall be interpreted to apply to the entirety of the property.

3. Residential development may include apartment buildings and residential uses in the upper storeys of non-residential use buildings.

4. Standalone residential buildings shall be located to the rear of commercial buildings facing Ottawa Street.

5. Residential building height shall be limited to a maximum of 4 storeys for apartment buildings.

6. The County is the approval authority for amendments to the Town OP. It approved OPA 26 on May 12, 2021. OPA 26 came into force on June 8, 2021.

7. By-law 20-113 was passed by Council for the Town on November 17, 2020. The Municipality issued Notice of Passing on November 26, 2020.

8. On December 16, 2020, Mr. Maynard appealed By-law 20-113.

Consistency with the PPS

10Mr. Pentz testified that s. 1 provides policy direction with regards to "Building Strong Healthy Communities" with an emphasis on directing and focusing growth and development to settlement areas. In general terms, within settlement areas, stated that the PPS promotes:

• Efficient development patterns that can accommodate an appropriate range and mix of residential and employment uses.

• Land use patterns are to be based on densities and a mix of land uses which can efficiently use infrastructure and public services that are readily available.

• Land use patterns shall also be based on a range of uses and opportunities for intensification and redevelopment, and

• Appropriate development standards which facilitate intensification, redevelopment and compact form, while avoiding or mitigating appropriate levels of public health and safety.

11Mr. Pentz further testified that these themes from s. 1 are set out in the following specific policies of the PPS:

• Section 1.1.3.1 indicates that "Settlement areas shall be the focus of growth and development"

• Section 1.1.3.2 indicates that "land use patterns within settlements areas are to be based on densities and a mix of land uses, which meet the criteria set out in (a) to (g)", and that "land use patterns within settlement areas shall also be based on a range of uses and opportunities for intensification and redevelopment".

• Section 1.1.3.4 indicates that "Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety".

• Section 1.4 addresses housing and in Section 1.4.3, policies direct that "planning authorities shall provide an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing requirements of current and future residents of the regional market area".

12Mr. Pentz opined that the proposed ZBA is consistent with these policies from the PPS in the following ways:

1. The proposed ZBA is a site-specific amendment that accommodates residential and commercial use through intensification and redevelopment at a key location in the municipality within the urban settlement area of Almonte where existing municipal services are available;

2. The proposed ZBA allows for redevelopment of the property by adding specific residential uses as additional uses on the property, while retaining the existing underlying commercial zone to create a mixed-use zone, achieving land use efficiency through increased density;

3. The proposed ZBA establishes significant/important zone provisions to govern building height, building placement and overall site density. This speaks to having appropriate development standards to facilitate intensification and redevelopment;

4. The proposed ZBA introduces a higher density of housing option that can support the housing requirements of current and future residents in a growing municipality;

5. The proposed ZBA applies appropriate development standards to achieve compact form and land use compatibility with adjacent uses; and

6. The proposed ZBA permits an appropriate land use that would revitalize an otherwise underutilized parcel of land.

13The Appellant did not materially dispute these findings as it relates to the PPS, focussing his submissions instead on conformity with the Town's OP.

14The Tribunal is persuaded to accept Mr. Pentz's testimony and finds that the proposed ZBA is consistent with the PPS for the reasons outlined above.

Conformity with the County of Lanark's OP

15It is an uncontested fact that the subject lands are designated "Settlement Area".

16Mr. Pentz testified that s. 2.0 of the County OP deals with "Settlement Policies", and includes a general statement in s. 2.1 that reads: "The policies are intended to ensure that local Councils will have the ability and authority to shape their communities in accordance with local needs and local characteristics".

17Beyond this broad statement and approach to County planning, Mr. Pentz opined that s. 2.3.1 of the County OP (Settlement Area Policies) is particularly relevant, which sets out general policies that are meant to give direction to local Official Plans, including:

4. Local Official Plans shall promote intensification in existing built-up areas based on the type of servicing infrastructure

5. Efficient development patterns within Settlement Areas will be encouraged in Settlement Areas to optimize the use of land, resources, infrastructure and public service facilities.

6. Local land use policies shall provide for mixed used development including residential, commercial, employment lands, parks and open space and institutional uses in areas designated as a settlement area in local Official Plans

and s. 2.6.1 under Objectives (Settlement Area Land Use Policies, Objectives) indicates that Settlement Areas should:

1. ensure there is an adequate supply of residential land;

2. to provide for a range and mix of low, medium and high-density housing types in accordance with servicing capacities, and

3. provide for mixed-use communities with appropriate commercial, institutional and employment uses.

18Furthermore, Mr. Pentz noted that direction to the Town is set out in s. 2.6.2 that deals specifically with the Local Planning Framework, citing s. 2.6.2.1 which states that that "Settlement Areas shall be defined through local Official Plans and municipal zoning by‐laws. Local Councils shall zone land for specific types of residential uses and shall ensure that permitted non‐residential uses are appropriately zoned".

19Mr. Pentz opined that the extensive use of the word "local" provides strong direction toward local planning decision making. The Appellant seemingly concurred, given that his submissions were focused practically exclusively on matters involving the Town's OP. The Tribunal finds the same.

20Mr. Pentz further covered s. 2.6.2.3, which states that "Local Councils through the development of municipal zoning by‐laws and the application, where required, of site plan control, shall regulate the development of settlement areas", and s. 2.6.2.4 which sets out criteria that are to be considered in local planning decisions, including local Official Plans, zoning regulations and site plan control.

21Mr. Pentz opined that, through its policy direction to lower tier municipalities, the policy direction provided by the County OP allows for local Councils, through their respective OPs, to have the ability and authority to shape their communities in accordance with local needs and local characteristics. Again, the Appellant seemingly concurred, given that his submissions were focused on the Town's OP, and the Tribunal finds same.

22Mr. Pentz further opined that, in accordance with the above noted policies, the County OP encourages intensification in existing built-up areas, promotes and encourages efficient development patterns within Settlement Areas to optimize the use of land, resources, infrastructure, and it supports mixed-used development in areas designated as a Settlement Area. He testified that this is particularly evident in the present case given the County's approval of OPA 26.

23In summary, for the reasons covered above, Mr. Pentz opined that the proposed ZBA is in conformity with the County OP.

24The Appellant did not materially dispute these findings as it relates to the County OP, again focussing his submissions instead on conformity with the Town's OP.

25The Tribunal is persuaded to accept Mr. Pentz's testimony and finds that the proposed ZBA is in conformity with the County OP.

Conformity with the Town's OP

26It is an uncontested fact that the Town OP was approved by the Ministry of Municipal Affairs and Housing in 2006, and OPA No. 21, which was prepared as a "Five Year Update", was approved by the County in 2019.

27It is also an uncontested fact that OPA 26 was approved by the County on May 12, 2021 and is not subject to an appeal. OPA 26 is a site-specific OPA, adopted by council at the same time as the subject ZBA currently under appeal, involving the subject site and it is site specific to the proposed development. The Tribunal finds that, in the words of Mr. Pentz, OPA 26 goes "hand-in-hand" with the subject ZBA and both are designed to facilitate the Applicant's proposed development.

28The Tribunal finds that, to be successful, the proposed ZBA must conform with the Town's OP, OPA 21, and OPA 26. At the same time, the Tribunal notes that it is a generally accepted principle that updated polices (i.e. OPA 21 in the present case) are to be preferred over policies of older OPs, in the event of a conflict, because they reflect new, better informed planning ideas. While not invalidating older plans, they may have also been tested against newer provincial policy documents. Similarly, it is also a generally accepted principle that geographically specific policies (i.e. OPA 26 in the present case) are preferred over more general policies, in the event of a conflict, because it reflects policies specifically tailored to specific conditions and context of a particular site.

29The uncontroverted evidence of Mr. Pentz is that the subject lands are designated "Highway Commercial". The Highway Commercial designation applies to lands in Almonte that are located along both sides of the Ottawa Street corridor between Paterson Street and the roundabout at County Road 17. The Highway Commercial designation policies are found within s. 3.7 of the OP entitled "Commercial and Industrial Land Use Policies". These policies contain the "Goals and Objectives" for the commercial and industrial land use designations, which are outlined in s. 3.7.1. Mr. Pentz opined that the proposed ZBA conforms with the primary goal stated therein, which is to "develop the economic potential of the area and create employment opportunities which strengthen the social fabric of the community", insofar as the proposed development redevelops a currently underused commercial building into a better designed commercial space, noting that the introduction of a residential use, while maintaining commercial zoning, designation and its policies, does not conflict with these objectives.

30Mr. Pentz drew the Tribunal's attention to four subsections of the Highway Commercial designation within the prior OP, plus a fifth introduced by OPA 26:

1. 3.7.3.1 Permitted Uses – lists range of permitted uses, with residential generally not being permitted (Mr. Pentz explained that this is why OPA 26 was required, and OPA 26 essentially trumps this policy insofar as it allows site-specific residential uses);

2. 3.7.3.2 Highway Commercial Policies – provides several general policies for commercial development in the designation;

3. 3.7.3.3 Highway Commercial Areas as Community Gateways – this section has specific emphasis on community gateways;

4. 3.7.3.4 Shopping Centre Commercial Development – identifies 2 properties in the designation that have been approved for shopping-centre development, including the subject property and the property directly across the street.

5. 3.7.3.5 "Special Site-Specific Policy for Highway Commercial (430 Ottawa Street)" [created by OPA 26] – permits mixed-use development specifically on the subject lands.

31Mr. Pentz's uncontroverted evidence is that OPA 26 added medium to high density residential uses as additional uses within the Highway Commercial designation on the subject property, which accomplishes the following:

• Establishes a maximum residential density of 50 units per net hectare;

• Permits residential units on upper-storeys of non-residential buildings;

• Directs that standalone residential buildings shall be located at the rear of commercial buildings;

• Limits residential building height to 4-storeys.

32Mr. Pentz's uncontroverted evidence is that these items are all designed to accommodate a mixed-use development on the property as illustrated in the Applicant's Concept Plan.

33Mr. Pentz drew the Tribunal's attention to s. 3.7.3.3 of the OP which states "it is the intent of this Plan to improve the visual image of highway commercial areas and develop them as gateways to the urban communities". He further opined that one of the ways to improve the visual image of the corridor is to bring buildings closer to the street, such as with the Applicant's proposal, in favour over a vast vacant parking lot which currently exists at the subject site.

34Regarding OPA 26, which has already been established as having been designed to facilitate the Applicants development proposal, Mr. Pentz testified that the subject ZBA directly implements the policy direction given through OPA 26 to create a mixed use. He opined that it does so as follows (with the balance of the Highway Commercial designation policies remaining in effect):

1. Creates a special site-specific Highway Commercial zone by replacing existing C4-4 zone with new provisions;

2. indicates that the following residential uses are permitted:

a. low and mid-rise apartments

b. dwelling unit or units in upper-storeys of a non-residential building

3. establishes zone requirements for apartment uses by requiring apartment buildings to be in accordance with R4 zone standards;

4. defines apartment dwelling, mid-rise;

5. through notwithstanding clauses, it

a. establishes a maximum building height of 15m or 4-storeys

b. establishes a maximum density of 50 units per hectare.

c. establishes a minimum setback of 60m from Ottawa St

d. establishes a minimum rear setback requirement of 26m for apartment dwellings

6. includes a holding provision to be removed only upon approval of a site plan application.

35The Tribunal accepts Mr. Pentz's opinions and finds that the proposed ZBA directly implements the site-specific policy of OPA 26 to allow the proposed development and, given that the permitted uses and zone provisions respecting the existing C4 zone are maintained, the proposed ZBA does not conflict with any of the policies of the Highway Commercial designation. The result, the Tribunal finds, is that the proposed ZBA quite clearly conforms with the relevant OPs and, in particular, OPA 26.

36Mr. Pentz noted and opined that OPA 26 did not include any policy cross-reference to the Residential policies in s. 3.6 of the OP. As a Result, those policies of s. 3.6 do not apply. The Tribunal is persuaded to accept this and finds the same. However, Mr. Pentz noted that s. 3.6.5.5 of the OP sets out seven criteria that medium density residential proposals are to address, which were addressed in the Planning Rationale to support OPA 26. He notes that, while the polices of s. 3.6 do not apply, the proposed ZBA is nevertheless in conformity with these criteria.

37It is noteworthy that, through cross-examination of Mr. Pentz, the Appellant took special exception to criteria 3 and 5, as it relates to visual conformity and adequate buffering from the existing residential area to the north of the site. In addressing this, notwithstanding his position that s. 3.6 does not apply, Mr. Pentz testified as follows:

• The 4-storey building height was approved through OPA 26, and the concept plan provides for considerable building setbacks from property lines. The zoning by-law amendment provisions would implement a 26 metres ("m") rear setback from the northern residences that would provide an appropriate buffer between a 4-storey residential building and the neighbouring residential uses.

• The sun shadow study prepared to illustrate shadow effects demonstrate that a 4-storey building has little to no impact on the abutting residential uses to the rear. This is in part due to a sizeable 26 m rear setback.

• The 26 m rear setback is approximately 3½ times more than the 7.5 m rear setback required for a R4 zone and about 8½ times the rear setback requirement in the C4 zone.

• The existing C4 zone would permit a 14 m tall commercial building (only 1 m less than what has been approved) to be positioned 3 m from the rear lot line. As a result, the proposed 26 m setback should be considered a significant improvement from the perspective of the northern neighbours – to ensure spatial separation to address shadowing and mitigate any other potential impacts – being much better than what is permitted as-of-right.

• An increase in one storey over the as-of-right C4 zoning is relatively minor given the size of the property and sizeable yards that are being proposed. The proposed 4-storey apartment building is not out of character with other 3-storey apartment building heights north of the property. The proposed building height of 15 m is also nearly the same as the maximum 14 m building height permitted in the current C4 zone.

• The concept plan illustrates that landscaping requirements along the property lines can assist in providing additional visual buffering between adjacent uses.

38The Tribunal accepts Mr. Pentz's opinions regarding the satisfaction of the criteria of s. 3.6, despite finding that it does not apply to the subject matter. More particularly, the Tribunal finds that the proposed ZBA does a better job of achieving visual conformity and adequate buffering from the existing residential area to the north of the site, compared to the current by-law.

39Mr. Pentz further noted and opined that s. 2.5.1, 2.5.2 and 2.5.3, found under the title "Growth and Settlement", speak to the philosophy of growth allocation in the Municipality, and include Goals and Objectives (2.5.1), Smart Growth (2.5.2) and Growth and Settlement Strategy (2.5.3) policies. He opined that these are important sections of the Plan to provide a basis for where growth is to be directed and to guide the creation of the Plan's land use designations and policies related to accommodating growth, Municipality-wide, as expressed through s. 2.5.3.2 (Settlement Strategy) and s. 2.5.3.2.2 (70/30 Settlement Strategy). He concluded that the proposed land uses enabled by the subject ZBA conform with these sections by promoting an efficient use of land within the urban area, noting again that the ZBA is specifically designed to implement the policy directions set out in the OP, as amended through OPA 26.

40These findings were not specifically contested by the Appellant, and the Tribunal is persuaded to accept it for the same reasons provided by Mr. Pentz.

41Mr. Pentz testified that s. 4.2.1 of the OP relates to the Goals and Objectives under the heading of Design. He stated that this section speaks to the importance of high-quality design, with the goals and objectives of "requiring new development and redevelopment to respect the scale and form of the area's small town and rural character". This section also includes the s. 4.2.2 titled Urban Design, with General Policies related to same at 4.2.2.1.

42Mr. Pentz took the position that this Urban Design section refers to design guidelines and sets out design criteria to be applied at the time of development, which, in his opinion, means at the time of site plan approval in the present case. Put another way, Mr. Pentz opined that the proposed ZBA establishes the development standards for the property, but the urban design elements of the Urban Design policies are specifically reviewed through the site plan approval process.

43Through his cross-examination of Mr. Pentz, the Appellant took exception to this, positing that this results in a situation whereby the public has no route to appeal detailed elements of urban design that would be covered in a future site plan. The Appellant posited, through his questions, that the subject ZBA results in "too much wiggle room" as it relates to design elements. The Tribunal notes, however, that the Appellant provided no law or precedent to support his position, insofar as he expects the ZBA to include detailed design elements, stating only that it is not fair for the public to be left out of the process to determine these details.

44Mr. Pentz unwaveringly responded by stating again that details respecting urban design are dealt with at the site plan stage of the proposed development and, notwithstanding this fact, careful attention was given to urban design principles through the development of the concept plan for the purpose of the OPA and ZBA applications. Mr. Pentz repeated that the purpose of the ZBA is to accommodate future development, and the submitted concept plan is merely a tool to illustrate the concept of the proposed development, as a means to set out the necessary zoning standards to allow it.

45Mr. Pentz also emphasized that the proposed ZBA includes a holding provision that can only be removed upon a site plan approval from Council. This provides Council with ultimate control over urban design issues as may arise through the site plan approval process.

46After considering the Appellant's position on this point, the Tribunal does not accept that a ZBA should include detailed urban design considerations – at least not to a degree that would normally be captured only in a proposed site plan. Such a proposition would make zoning standards impossibly inflexible, likely requiring a new ZBA every time something minor arises which requires a change in the design, or whenever a property owner wishes to undertake renovations that affects the buildings' design. The Tribunal finds that the proposed ZBA is sufficiently detailed to limit the development to that which is more generally outlined in the Applicant's concept plan.

47Mr. Pentz's testimony continued to cover s. 4.4.2(2) "Economic Development" of the OP, which is specific to business development policies. He opined that this policy speaks to the significance of the Ottawa Street corridor as a commercial centre, and the importance of maintaining the character and identity of the corridor. He further opined that the proposed ZBA conforms to the policy despite the introduction of a residential component because it is located at the rear of the property and screened from the road by commercial components. He went on to point out that the proposed development actually does a better job of supporting this policy by bringing the commercial elements of the property forward, closer to Ottawa Street, which, he opined, serves to enhance the commercial streetscape along the community gateway section of corridor.

48These findings were not specifically contested by the Appellant, and the Tribunal is persuaded to accept it for the same reasons provided by Mr. Pentz.

49In conclusion, Mr. Pentz opined that the ZBA conforms with the Town OP by doing precisely what is directed by the OP, as amended by OPA 26. He emphasized that key elements of the ZBA that speak to conformity with the OP (as amended) are included in the By-law:

1. The amendment permits low and mid-rise apartments, and residential units in the upper stories of a commercial building, consistent with the OPA .

2. It ensures that the residential uses are sited in compliance with R4 zone provisions (Residential 4th Density zone, which is the only zone that permits apartment buildings), consistent with the OPA .

3. It includes a maximum density provision, consistent with the density set out in the OPA.

4. It includes a provision to address maximum building height, consistent with the OPA.

5. It includes a provision to ensure that residential buildings are sited towards the rear of the property and behind the commercial buildings, consistent with the OPA.

6. It includes a holding provision that shall remain in place until a site plan approval has been granted.

50The Tribunal accepts Mr. Pentz's conclusions regarding conformity with the Town's OP for the reasons set out above.

Issues Raised by the Appellant (as scoped at the hearing)

51As stated earlier in this decision, the Appellant scoped his issues midway through the hearing, arguing that the proposed ZBA is not in conformity with the following policies of the Town OP:

1. Section 3.6.1: "Goal and Objectives";

2. Section 3.6.3: "Affordable Housing";

3. Section 4.2.2.1: "Urban Design: General Policies" (General Policy no. 5(ii)); and

4. Section 4.2.2.1: "Urban Design: General Policies" (General Policy no. 5(vi)).

52While most of these issues have been largely addressed above in this decision, the Tribunal will specifically address each of these issues below for the sake of clarity.

Compatibility with surrounding residences

53The Appellant took the position that the proposed development and corresponding ZBA do not conform with the fifth objective listed at policy 3.6.1, "[to] ensure that residential intensification, infilling and redevelopment within existing neighbourhoods is compatible with surrounding uses in terms of design", because the proposed four (4)-story residential building to be located at the back of the property is not compatible with the single-story residences immediately adjacent to the back of the property.

54The Tribunal notes that the Appellant did not clearly articulate his position insofar as he did not articulate how the proposed apartment building is not compatible, other than to propose that it involves different built forms which, he suggested, are inherently incompatible.

55When questioned about this by the Appellant, Mr. Pentz was unwavering with his explanation insofar as it was his opinion that the 26 m rear setback provided enough of a buffer to adequate step-down the relative heights of the respective buildings, and he noted that the shadow studies showed little if any direct impact on the adjacent residences. He further noted that there is little practical difference between the maximum height allowed in the proposed ZBA (15m) versus the current zoning (14m), and the proposed development is generally in keeping with existing apartment building heights in the area. He also emphasized that specific design details, including landscape plans, will form part of the site plan application and are not at issue with resect to the ZBA appeal.

56The Tribunal is persuaded to accept Mr. Pentz's opinion in this regard, noting that it has already found that policy 3.6 does not apply to the subject matter, and detailed design considerations are properly dealt with at the site plan approval stage of the planning process. Nevertheless, it finds no obvious conflict from a conformity standpoint pursuant to the fifth objective listed at policy 3.6.1.

Affordable housing

57The Appellant took the position that the proposed development and corresponding ZBA do not conform with policy 3.6.3 because it does not include any affordable housing. The Appellant posited that all development must address policy 3.6.3 insofar as it must provide at least some affordable housing.

58When questioned about this by the Appellant, Mr. Pentz was unwavering with his explanation insofar as it was his opinion that not all development must include affordable housing, and this does not put it at odds with the OP policy or the PPS in this regard. The Appellant went on to ask Mr. Pentz how the municipality planned to address affordable housing, which Mr. Pentz understandably could not answer (since he is not an employee or representative of the municipality).

59The Tribunal notes that policy 3.6.3 does state that "Council will provide for affordable housing by enabling a full range of housing types and densities to meet projected demographic and market requirements of current and future residents of the municipality […]". However, the plain reading of this policy puts this onus on the municipality, not developers. Furthermore, the Tribunal finds that the Applicant is supporting this policy insofar as the proposal includes "a full range of housing types and densities". Additionally, no evidence was provided to support the Appellant's notion that there was a shortage of affordable housing in Almonte.

60Accordingly, the Tribunal finds nothing to suggest that affordable housing is an issue in the present case. Furthermore, the subject ZBA does not, in and of itself, preclude affordable housing at the subject site. The Tribunal accordingly finds that there is no lack of conformity in this regard.

Mitigation of potential nuisance originating from the subject property

61The Appellant took the position that the proposed development and corresponding ZBA do not conform with policy 4.2.2.1 because it will not adequately "mitigate impacts from noise, odours, traffic, outdoor storage and dust originating from the subject property", these being listed at General Policy no. 5(ii).

62When questioned about this by the Appellant, Mr. Pentz addressed the Appellant's proposition simply by stating that these types of concerns are dealt with through particular site plan measures, as required by the municipality. He noted that the holding provision of the ZBA ensures that these types of concerns are addressed before actual development is approved.

63The Tribunal again accepts Mr. Pentz's explanation and finds that there is nothing inherent in the proposed ZBA to suggest an inevitable issue with nuisances listed at General Policy no. 5(ii) of policy 4.2.2.1. The Appellant provided no evidence to the contrary. The Tribunal accordingly finds that there is no lack of conformity in this regard.

Minimization of potential shadowing of adjacent properties

64The Appellant took the position that the proposed development and corresponding ZBA do not conform with policy 4.2.2.1 because it will not adequately "minimize the shadowing of adjacent properties, particularly outdoor amenity areas", this being listed at General Policy no. 5(vi).

65When questioned about this by the Appellant, Mr. Pentz directed the Tribunal's attention to the shadow study, which showed only a very small amount of shadow being cast by the apartment building on the adjacent residences, and only early in the morning on a few specific days of the year. Most days of the year, there was no shadows cast.

66Through his cross-examination of Mr. Pentz, the Appellant posited that no shadows were acceptable pursuant to the policy. Mr. Pentz disagreed, and opined that the policy only requires a minimization, not elimination of shadows, which the proposed heights and setbacks of the apartment building adequately satisfied. When the Appellant posited that the building could be moved even further away from the rear residences, Mr. Pentz pointed out that this would conflict with policy-driven efforts to keep the residential component further away from Ottawa Street, and a more balanced approach is appropriate.

67The Tribunal is persuaded to accept Mr. Pentz's opinion in this regard, noting that the evidence showed practically no shadows cast on the residences by the proposed apartment building. The Tribunal does not accept the Appellant's proposition that minimization means elimination. The Tribunal also agrees that the relevant policy supports keeping the residential component away from Ottawa Street. The Tribunal also notes that none of the actual residents living north of the subject site submitted any concerns of any kind to the Tribunal, suggesting that the Appellant's issue is entirely theoretical.

Summary and Conclusions

68In summary, the Tribunal finds that the ZBA is consistent with the PPS, conforms with the County OP, conforms with the Town OP and OPA 26 in particular, it addresses potential impacts on neighbouring properties adequately through height restrictions and setbacks, plus the holding provision regarding approval of a site plan. More particularly, the ZBA maintains the commercial zoning to accommodate improved commercial exposure along the frontage of the property at Ottawa Street, which is recognized as a high-profile parcel of land and commercial gateway to the Community, while, at the same time, providing an opportunity for additional housing for a growing Municipality.

69Furthermore, for the same reasons, the Tribunal finds that the ZBA has regard to matters of provincial interest in accordance with s. 2 of the Planning Act and constitutes good planning in the public interest. In addition, it does so by supporting community development through redevelopment of an otherwise inefficient and underutilized site at a strategic location, thereby contributing to a more complete and balanced community.

Costs

70At the conclusion of the hearing, counsel for both the Applicant and the Town raised the prospect of costs against the Appellant. At the time, the Tribunal indicated that it would provide directions as part of and contingent upon this decision. Pursuant to the below Order, the Tribunal will accept written submissions on costs from all parties.

ORDER

71THE TRIBUNAL ORDERS that:

1. the appeal against By-law No. 20-113 of the Town of Mississippi Mills is dismissed; and

2. In accordance with Rule 23 of the Tribunal's Rules of Practice and Procedure, written submissions respecting costs of this appeal shall be served and filed by the parties as follows:

a. within 35 days of the issuance of this decision, the Applicant and the Town may serve upon the Appellant, and file with the Tribunal, written submissions and documentation which shall include:

i. the reasons for the request and the amount requested;

ii. an estimate of any extra preparation or hearing time caused by the conduct alleged to attract costs;

iii. copies of supporting invoices for expenses claimed or an affidavit of a person responsible for payment of those expenses verifying that the expenses were properly incurred; and

iv. an affidavit verifying that the costs claimed were incurred directly and necessarily for the time period in question;

b. within 15 days of service of the documentation from the parties requesting costs, the Appellant shall provide a written response to the Tribunal and the other parties to whom the request for costs is made. For greater clarity, the aforementioned 15-day limitation period commences upon service of the documentation from the last party to serve its documentation requesting costs;

c. within 10 days of the service of the written response, the parties requesting costs may provide a written reply to the Tribunal and the other parties; and

d. The Tribunal Member who conducted the hearing event on the merits shall make the decision on the request for costs.

"K.R. Andrews"

K.R. ANDREWS

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.