Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 09, 2021

CASE NO(S).: PL200514

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2160288 Ontario Inc.

Subject: Request to amend the Official Plan - Failure of City of Peterborough to adopt the requested amendment

Existing Designation: Commercial

Proposed Designated: High Density Residential

Purpose: To permit the use of the lands for high density, multi-unit residential supporting a maximum of 76 units and a maximum building height of 7 storeys with surface parking facilities

Property Address/Description: 1176 – 1182 Armour Road

Municipality: City of Peterborough

Approval Authority File No.: O19202

OLT Case No.: PL200514

OLT File No.: PL200514

OLT Case Name: 2160288 Ontario Inc. v. Peterborough (City)

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

Applicant and Appellant: 2160288 Ontario Inc.

Subject: Application to amend Zoning By-law No. 97-123 - Refusal or neglect of City of Peterborough to make a decision

Existing Zoning: 1176 Armour Road: SP.245 – Special Commercial District 1182 Armour Road: R.1, 1e, 2e, 4e

Proposed Zoning: Modified R.5 – Residential Zoning District with site specific regulations, and OS.1 – Open Space District

Purpose: To permit the use of the lands for high density, multi-unit residential supporting a maximum of 76 units and a maximum building height of 7 storeys with surface parking facilities

Property Address/Description: 1176 – 1182 Armour Road

Municipality: City of Peterborough

Municipality File No.: Z1909

OLT Case No.: PL200514

OLT File No.: PL200515

Heard: October 25, 2021 by telephone conference call

APPEARANCES:

Parties	Counsel
City of Peterborough	Alan Barber
2160288 Ontario Inc.	John Ewart
Janis O’Heron	Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON OCTOBER 25, 2021 AND ORDER OF THE TRIBUNAL

1The Ontario Land Tribunal (“OLT” or “Tribunal”) convened a telephone conference call (“TCC”) on October 25, 2021 to conduct the second Case Management Conference (“CMC”) in this proceeding. The first CMC was held on May 13, 2021.

2This matter involves an appeal by 2160288 Ontario Inc. (“Appellant”) under s. 22(7) and s. 34(11) of the Planning Act, R.S.O 1990, c. P. 13 of the refusal by the City of Peterborough (“City”) to grant an amendment of the City’s Official Plan and of the City’s Zoning By-law No. 97-123 to permit the redevelopment of the property located at the address municipally known as 1176 - 1182 Armour Road in the City (“Subject Lands”). The Appellant seeks to build a high density, multi-unit residential building supporting a maximum of 76 units and a maximum building height of 7 storeys on the Subject Lands.

3The only matter to be dealt with at this second CMC was to consider submissions on the draft Procedural Order (“PO”) forwarded to the Tribunal by the Parties in late August of 2021, notwithstanding the Order made at the first CMC issued May 28, 2021 requiring that on or before June 30, 2021 the Parties provide to the Tribunal an agreed draft PO or a draft PO which reflects both the provisions agreed to by the Parties and also those provisions which remain in dispute, if any.

4A hearing has already been set for this matter which will commence on January 24, 2022 for a period of 10 days until and including February 4, 2022.

5It was evident to the Tribunal that the last draft PO submitted by the Parties was deficient in several respects and also did not reflect agreement between the Parties concerning the Issues List set out in that draft PO, among other details. Counsel for the Applicant and Ms. O’Heron agreed to have their respective professional planners consult together with the aim of either eliminating or minimizing areas of disagreement so that a further revised draft PO would be delivered to the Tribunal within 7 days of the TCC. Subsequent to the TCC, the Parties submitted a further draft PO on November 4, 2021.

ORDER

6The Tribunal Orders that this proceeding shall be governed by the terms of the Procedural Order appended as Attachment 1.

7I will continue with the case management of this matter and will remain available to further assist the Parties if the need arises.

“William R. Middleton”

WILLIAM R. MIDDLETON MEMBER

Ontario Land Tribunal Website: www.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.

PL200514 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2160288 Ontario Inc.

Subject: Request to amend the Official Plan - Failure of City of Peterborough to adopt the requested amendment

Existing Designation: Commercial

Proposed Designated: High Density Residential

Purpose: To permit the use of the lands for high density, multi-unit residential supporting a maximum of 76 units and a maximum building height of 7 storeys with surface parking facilities

Property Address/Description: 1176 – 1182 Armour Road

Municipality: City of Peterborough

Approval Authority File No.: O19202

OLT Case No.: PL200514

OLT File No.: PL200514

OLT Case Name: 2160288 Ontario Inc. v. Peterborough (City)

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

Applicant and Appellant: 2160288 Ontario Inc.

Subject: Application to amend Zoning By-law No. 97-123 - Refusal or neglect of City of Peterborough to make a decision

Existing Zoning: 1176 Armour Road: SP.245 – Special Commercial District 1182 Armour Road: R.1, 1e, 2e, 4e

Proposed Zoning: Modified R.5 – Residential Zoning District with site specific regulations, and OS.1 – Open Space District

Purpose: To permit the use of the lands for high density, multi-unit residential supporting a maximum of 76 units and a maximum building height of 7 storeys with surface parking facilities

Property Address/Description: 1176 – 1182 Armour Road

Municipality: City of Peterborough

Municipality File No.: Z1909

OLT Case No.: PL200514

OLT File No.: PL200515

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on January 24, 2022 commencing at 10 a.m. and continuing on January 25, 26, 27, 28, 31, 2022 and February 1 to 4, 2022 as follows:

GoTo Meeting: https://global.gotomeeting.com/join/404723717

Audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391

Access Code: 404-723-717

3. The parties’ initial estimation for the length of the hearing is 8 to 10 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before November 26, 2021 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before December 31, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case Coordinator on or before January 14, 2022.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as described in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before December 17, 2021, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 22 below.

14. On or before December 17, 2021, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before January 7, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT Case Coordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before January 14, 2022.

18. Any documents which may be used by a party in cross-examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT Case Coordinator, on or before January 21, 2022.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal (See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion).

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 7, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANT

PARTIES	COUNSEL/REPRESENTATIVE

1. City of Peterborough | Legal Services Branch
   500 George Street North
   Peterborough, ON K9H 3R9
   Alan Barber
   Email: abarber@peterborough.ca
   Tel: (705) 742-7777 ext. 1893
2. 2160288 Ontario Inc. | Ewart O'Dwyer
   311 George Street North
   Suite 103
   Peterborough, ON K9J 3H3
   John Ewart
   Email: jewart@ewartodwyer.com
   Tel: (705) 874-0404 ext. 226
3. Janis O’Heron | Self-represented
   Email: janis.oheron@hotmail.com
   Tel: (705) 761-2594

PARTICIPANTS

1. Ann Hume Email: ann.hume@sympatico.ca Tel: (705) 745-3562

2. Gregory Pulham Email: pulhamgr@hotmail.ca Tel: (705) 876-0336

3. Ronald Egan Email: ronegan@cogeco.ca Tel: (705) 933-4662

4. Dawson (Joseph) Bick Email: daws1616@gmail.com

5. Michael O’Neill Email: traffic.mike@hotmail.com Email: moneill@blackandmcdonald.com

6. 2012542 Ontario Inc. (Terry Freeburn) 479 Water Street Peterborough, ON K9H 3M2

ATTACHMENT 2

ISSUES LIST FOR HEARING

Note 1: Any Party may call or not call evidence on any issue; however, a Party is obligated to call evidence on any issues raised by that Party.

1. Do the proposed amendments have regard for matters of Provincial interest identified in the Planning Act, in particular subsections 2 (a), (d), (f), (h), (i), (j), (k), (o), (p), (q), (r), (s)?

2. Are the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the Provincial Policy Statement, in particular policies 1.1.1; 1.1.2; 1.1.3; 1.2; 1.3.1; 1.4.3; 1.5; 1.6.6; 1.6.6.7; 1.6.7.4; 1.7; 1.7.1; 1.8; 2.1; 2.2, 2.6, 3.0, 3.1.7?

3. Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019) as amended, in particular policies 1.2.1; 2.2.1; 2.2.2(3); 3.1.7; 3.2.6; 3.2.7 (2); 4.2.1; 4.2.2; 4.2.3; 4.2.4; 4.2.10; 5.2.4; 5.2.5

4. Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with, and maintain the intent of, the policies of the City’s Official Plan, In particular:

• Schedule N (Auburn North Secondary Plan)
• Goals and Objective Sections 2.1.3; 2.1.6; 2.1.7; 2.1.8; 2.1; 2.1.10;
• The Regional Setting 2.2;
• Commercial Structure 2.3.2; 2.3.8;
• Growth Management Strategy 2.4.1; 2.4.2; 2.4.3; 2.4.3.3; 2.4.4.4; 2.4.4.3, 2.4.7.7;
• Transportation 2.4.8;
• Cultural Heritage 2.4.9.3.4 (3rd paragraph);
• Natural Heritage 2.4.10;
• Infrastructure and Public Service Facilities 2.4.11.1;
• Water 2.4.13;
• Natural Areas 3.3;
• Energy 3.7.1; 3.7.2;
• Residential Designations 4.2.2.3.3; 4.2.2.3.2.3; 4.2.3; 4.2.5.6; 4.2.5.7;
• Commercial Area 4.3.5; 4.3.5.6;
• Transportation 5.1.11; 5.2.5.7; 5.4.2; 5.4.11; 5.7.2; 5.11;
• Sequence of Development and Servicing Policy 7.1; 7.2.2; 7.5; 7.7;
• Implementation 9.1.3; 9.2.5; 9.2.6;
• Secondary Plans 9.5;
• Auburn North Secondary Plan 10.4; 10.4.2.4; Schedule N;
• Schedules B, D & E;
• Tables 1 & 2.

5. Does the removal of the Commercial Designation and the change in zoning from Neighbourhood Commercial remove an important local commercial use which will have implications on the local resident’s access to convenient commercial needs, traffic patterns in the Secondary Plan area, the balance of land uses within the larger community and the failure to establish a complete community?

6. Does the proposed high density residential development represent an orderly and appropriate land use for this site, and does it complement the character of the surrounding neighbourhood?

7. Is the approval premature in light of the traffic planning update for this specific area that was initiated in response to this proposal and should deference be given to Council’s resolution to defer their decision to seek the traffic planning update?

8. Is the approval premature in light of the pending realignment of Armour Road as proposed in the North End EA Study which may have implications on the design of the proposed development, safe vehicle and pedestrian movement and access to adequate infrastructure?

9. Is the proposal consistent with the objective of protecting the water quality in Thompson Creek and the Otonabee River as outlined in the Official Plan particularly in view of the location of the City’s water intake and treatment facility immediately downstream of the proposed development and local wells in the immediate area?

10. In view of the close proximity of sensitive areas and natural heritage features both on and adjacent to the subject lands, have the implications of the drainage, stormwater, building location, proposed fill and associated hazards related to slopes and flood-lines been adequately evaluated and considered in the design of the proposed development?

11. Are the proposed exceptions to the standard zone regulations justified and will these reductions have potential implications on adjacent roadways and properties particularly in view of the reduced lot area per dwelling unit, the reduced building setback from the northern lot line and the lands zoned OS.1, the reduced parking requirement and the increased lot coverage for open parking, driveways, and vehicle movement areas?

12. Is it appropriate in view of the zoning exceptions included in the Zoning By-law Amendment to defer the implementation of the Meander Beltwidth and Fluvial Geomorphological Assessment, the scoped Environmental Impact Study, the completion of the Armour Road alignment study and the upgrading of the identified downstream servicing improvements until the Site Plan Approval Process?

13. Is the proposed reduction in the parking requirement justified in view of the specific local land uses including the limited local amenities and given that the target occupants will be young professionals?

14. Has site access been properly assessed particularly in view of the single access and the positioning of the building to allow safe emergency access?

15. Is zoning of the eastern portion of the site as Open Space sufficient compensation for the loss of amenity space and community focus as a result of the change in land use to high density residential from commercial?

16. Does the Proposed Development represent good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 2160288 Ontario Inc.
2. Janis O’Heron
3. City of Peterborough
4. 2160288 Ontario Inc. – Reply Evidence

Note: The Hearing panel will determine the timing for the evidence of participants.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.