Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 12, 2021

CASE NO(S).: MM210003

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Gotfryd Group Inc.

Request for: Motion for Directions

Heard: June 11, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
Gotfryd Group Inc.	R. Cheeseman
City of Richmond Hill	C. Thorne

DECISION DELIVERED BY D.S. COLBOURNE AND G. BURTON AND ORDER OF THE TRIBUNAL

THE GOTFRYD GROUP

1The Gotfryd Group, owner of the property at 19 Leonard Street, in the City of Richmond Hill (the “City”), made a Motion for Directions under s. 34(10.5) of the Planning Act (the “Act”), dated January 20, 2021. It seeks an order of the Tribunal:

Firstly, a declaration that the application for a zoning by-law amendment (“ZBLA”) submitted by the Group on November 20, 2020, to the City contained all of the information and materials required in the Richmond Hill Official Plan, as authorized by subsections 34 (10.1) and (10.2) of the Act, and that these were provided to the City of Richmond Hill.

Secondly, an order of the Tribunal determining that the City’s requirements made under Section 34 (10.2) were unreasonable.

2As to the documentation requirements for a Zoning By-law Amendment (“ZBLA”) application, the Act sets out the following:

a. Section 34(10.1) requires the submission of prescribed information, and

b. Section 34(10.2) states that council may require any other information or material that the council considers it may need, but only if the official plan contains provisions relating to requirements under the subsection.

c. Section 5.3 of the Richmond Hill Official Plan (“OP”) deals with Complete Application Submission Requirements, and clause 5.3.3 states that the number and scope of the information including studies, reports, statements and drawings to be required for the submission of a complete application shall be in keeping with the scope and complexity of the application.

d. Section 10 of the OP deals directly with the subject lands, by an amendment made by the Ontario Municipal Board (“OMB”) in 2014. In subsections a, b, c and d are the requirements for an approved Environmental Assessment (“EA”), funding for that assessment, a Natural Heritage Evaluation, and public works options prior to development. Details of these are set out in the section entitled “Information Requirements”, in subsection 7 of Section 5.3.

e. Section 5.6 of the OP states:

The specific scope of the reports and studies to be submitted as part of a development application will be identified at a pre-application meeting required in accordance with Section 5.4 of the Plan.

3As contained in the Affidavit of Doris Cheng, Senior Planner for the City (Exhibit 2, Tab 2), the subject property is approximately 0.73 hectares in size. It is located on the north side of Elgin Mills Road West, west of Yonge Street, and south of a portion of Leonard Street in the City. Exhibit "A" to her Affidavit is an Air Photograph dated 2020, showing the property and the broader context of the surrounding area.

4Of significance, a tributary of German Mills Creek crosses the property on approximately the west side, in a roughly north/south direction, bisecting the property into west and east areas. Exhibit "B" to her Affidavit are a series of Historical Aerial Photographs from York Region Maps. The photograph dated 1954, illustrates the original alignment of the creek, and the photo dated 1970 illustrates the realignment of the creek, which remains its current form today. An air photo dated 2017, shows the establishment of vegetation on the site, and the photo dated 2020, illustrates present-day conditions. It is Ms. Cheng’s understanding from the Applicant that historical land uses on the property included a tannery, automobile sales and service facility, and a gas station.

5The majority of the property is comprised of a meandering natural heritage system, which includes German Mills Creek, a significant woodland that is contiguous with the creek, and its associated flood hazard. The remaining tablelands are currently vacant.

6The property abuts residential lands to the west, Elgin Mills Road to the south, Yonge Street to the east, Leonard Street and a vacant parcel of land at 10766 Yonge Street to the northeast. Toll Bar Park, owned by the City, and naturalized open space lands owned by the Toronto Region Conservation Authority (“TRCA”) are located north of the site.

7A small portion of the land sought to be developed in the present application, Ms. Cheng stated, has frontage on Yonge Street and is currently designated 'Regional Mixed Use Corridor'. The majority of the lands in the ZBLA Application are designated 'Natural Core' and 'Neighbourhood' in the City's OP. The lands are also the subject of an OMB decision dated August 26, 2014 (PL110189). This decision has been incorporated into the City's OP as site-specific Exception, Policy No. 10. The portion of the parcel designated 'Natural Core' contains an identified Natural Heritage Feature, consisting of the German Mills Creek, a Significant Woodland that is contiguous to the creek corridor, and an associated Flood Hazard, regulated by the Toronto and Region Conservation Authority (the "TRCA").

8The application for a ZBLA proposes to rezone the parcel from Flood and Neighbourhood Zone to Site-Specific Mixed Use (“SSMU”) and Site-Specific Open Space (“SSOS”). The Mixed Use (“MU”) zone would facilitate the proposed development of two residential towers, consisting of a 15-storey and an 8-storey building connected by a three-storey podium, with retail and commercial space at grade. Ms. Cheng surmised that the Open Space (“OS”) zone is intended to permit conservation, flood protection, accessory and below grade parking uses. However, no such zoning categories exist in current City By-laws.

9The Gotfryd Group submitted its application for a ZBLA on November 20, 2020. They stated that “all of the required information and material was submitted along with the application”. However, by letter of December 16, 2020, the municipality informed them that it considered the application incomplete (the “application complete” letter as it was referred to, paradoxically). The Applicant stated in its Motion that:

the materials required by the City of Richmond Hill in the December 21, 2020 notice were not appropriate for a zoning by-law amendment. These materials would be appropriate for site plan approval and would be addressed, if required, when an application for site plan approval was made.

10According to Ms. Cheng’s Affidavit, the series of meetings, discussions and exchanges between the parties leading up to the application’s submission appear to be as follows:

11On May 22, 2018, the Applicant had a meeting with TRCA. Arising from that meeting there was an extensive list of reports and documents required of the Applicant specific to TRCA’s concerns, given the site composition and condition.

12There was a Pre-submission meeting that took place June 11, 2018, with City planning staff. After that meeting, the City issued a letter dated July 9, 2018, outlining the requirements for a complete application. This identified an extensive list of requirements for all the steps in the development approval process.

13After that meeting, the Applicant decided to reduce the scale of the development, so that it would be in conformity with the OP. Therefore, the City’s previous requirements for an Official Plan Amendment (“OPA”) and a Draft Plan of Condominium were no longer applicable, and the Site Plan Application would be addressed later in the process.

14That City letter, identified on page 5, is a list of "Additional Requirements"; which describes planning, engineering, and other specific studies not identified as specific to any particular step in the development approval process, but which were added to the list of requirements. It also included a repeat of the TRCA requirement list of May 2018.

15The application for a ZBLA was submitted November 20, 2020.

16The December 16, 2020 letter from the City deeming the application “incomplete”, dealt only with the Zoning By-law application requirements. In much of the evidence, this letter was called an “application complete” letter (which the Tribunal presumes is its usual abbreviation).

17That same City letter contains the following advice:

if you consider any or all of the required information to be unnecessary in order for the City to consider the completeness of the application, please provide a written explanation outlining your request for exemption from the City’s requirements.

18The Cheng affidavit states:

To my knowledge, the City received no written request from the Applicant stating that the required information is unnecessary or unreasonable. The only response is this Motion dated January 20, 2021.

19In support of this Motion, the Applicant submitted affidavits of several experts, with many attachments. These included their reports in support of the application, and/or other reports and documents in their fields as foundation for their opinions.

20The first witness for the Applicant was Ronald Palmer, a land use and policy planner of over 35 years’ experience, and a member of the Canadian Institute of Planners and a Registered Professional Planner. He was of the opinion that the ZBLA Application Requirements were satisfied.

21He continued:

The Additional Requirements in particular are, in my professional opinion, not necessary to support the Rezoning Application, although many of them would be appropriate for, and will be prepared in the context of a subsequent application for Site Plan Approval, once the Rezoning is approved and the principle of development established.

Within the development approvals process there are basically two types of supporting studies that are required - studies that establish the principle of development (developable area), permitted land uses, development regulations, and other, more detailed studies that support the specific elements of a development project that ensure a specifically achievable and well-functioning development project.

The key question in this case is what is required to support the Rezoning Application, which is intended to articulate the principle of development on the Subject Site. The City's letter, dated July 9th, 2018, identified, very specifically, the studies required to support the Rezoning Application. That letter also identified studies required to support a Site Plan Application, as well as “Additional Study Requirements” that were not specifically linked to any particular step in the development approval process.”

22Mark Schollen is a landscape architect and principal of Schollen & Company Inc., providing consulting services in landscape architecture, natural heritage resource management, Green Infrastructure design, watercourse rehabilitation design, environmental restoration and parks and open space system design and management.

23In his affidavit, he states that throughout his career he has prepared restoration plans for watercourses, wetlands, and natural heritage systems for sites within the Rouge, Don, Humber, Credit, Grand, Thames, Nipigon, Cypress and Holland River watersheds, as well as sites on Lakes Erie, Superior, Ontario, Huron and the St. Lawrence Seaway. He has participated in the preparation of stormwater strategies for a range of development sites. He was a contributing author to the Stage 1 and Stage 2 Stormwater Management - Best Management Practices, Planning and Design Manuals, as well as a joint TRCA/CVC Low Impact Development Design Guidelines Manual. He was also the principal author of a technical manual on habitat creation for Environment Canada.

24Related to the City’s requirements in this matter, he states:

Several of these concerns relate to certain requirements around the relocation of German Mills Creek. This relocation would be carried out in accordance with the requirements of the TRCA. Furthermore, similar projects have been approved by the TRCA in which a watercourse has been altered to the benefit of the sustainability of the watershed.

At this stage, the scale and scope of the studies related to natural heritage that were submitted to the City were appropriate for an application for a Zoning By-law amendment. There are more studies before the extent and feasibility of the development parcel can be confirmed.

A Restoration Concept Plan was prepared by my firm that was sufficient to define the limit of development in support of the Zoning By-law amendment application. A detailed restoration plan will be prepared for submission as a component of the SPA package. The Restoration Concept Plan that was prepared by my firm illustrates the area that is proposed to be restored along the reach of the realigned watercourse. A detailed compensation/ enhancement plan will be prepared as a component of the SPA submission package. The Corridor Reach Analysis was addressed as a component of the characterization of the existing conditions that was completed by my firm and documented in the NHE [Natural Heritage Evaluation]. With respect to the Meanderbelt Analysis, it is my opinion that this study is not warranted since there are fixed points along the alignment of the creek that do not allow it to meander. The culvert at Leonard Street and the culvert at Elgin Mills Road West are in close proximity to one another and therefore there is no potential for the watercourse to meander in response to fluvial processes between these fixed points. Upstream of Leonard Street, the watercourse is also fixed in its location due to the outlet of the on-line tormwater [sic] management pond at Toll Bar Park…

25Sal Spitale is an ecologist with North South Environmental Inc. He completed a Natural Heritage Evaluation ("NHE") of the property in order to assess the woodland and German Mills Creek area.

26His opinion is that:

This report establishes that the NHE has undertaken an evaluation and characterization of features and ecological functions on and adjacent to the subject property. The NHE has evaluated potential impacts to features, ecological functions, and hydrologic features as a result of the proposed Conceptual Development and proposed appropriate mitigation measures. The NHE has concluded, in accordance with the relevant policy frameworks of the Province, the Region, the City of Richmond Hill, and in addition to the decision of the Ontario Municipal Board, that there will be no negative impacts to the features and ecological functions including wildlife habitat, riparian cover and fish habitat as a result of the proposed Conceptual Development, so long as identified mitigation measures are implemented.

At this stage, the scale and scope of the studies related to natural heritage that were submitted to the City were appropriate for an application for a zoning by-law amendment. Furthermore, the NHE was completed in full to meet the requirements and address comments related to the Terms of Reference reviewed by the Toronto and Region Conservation Authority. Any further details or reporting would typically be completed at a future detailed design stage.

27Bill Coffey is an Environmental Engineer specializing in water resources. His focus was directed to the options for flood mitigation to improve the level of protection within a Flood Vulnerable Area. He performed work for the City in 2016, a post-EA study called Area Flood Remediation Study for the Yonge Street and Elgin Mills Road Area. He stated, “The subject property… lies just outside the FVA and the Study Area limit for the EA study, however, the subject property was included in the hydraulic model for the EA study. (Exhibit 1, Affidavit of Bill Coffey, para. 7).”

The City of Richmond Hill

28The City opposes the Motion and relief being sought by the Gotfryd Group on the following grounds:

The Moving Party's zoning by-law amendment application (the "ZBLA Application") was incomplete on the date of its submission to the City on or about November 20, 2020. …It was deemed incomplete by the City with respect to the following outstanding items:

• A description of the proposed ZBLA which references proposed Zoning By-law categories (existing and proposed) rather than references to Official Plan designations;

• All development statistics necessary to inform the proposed draft Zoning By-law, including the proposed number of units and parking spaces; and,

the completion of the Fee Schedule.

29The City continued:

A Draft Zoning By-law is required. It should be noted that reference to a site specific Mixed-Use (SSMU) Zone has been noted, however this is not a zoning category used by the City. Please refer to an example of a recent City Zoning By-law within the City's Regional Mixed-Use Corridor for guidance;

• The Complete Development Application Advertising Fee ($651.00) and the Council Public Meeting Advertising Fee ($651.00) are required. Please note that the Pre-submission Fee Paid in 2018 ($600) is to be subtracted from the total fee to be submitted. In this regard, the total fees owing for this application is $14,417.00;

• site statistics shall be provided on the conceptual Site Plan and Elevation drawings.

• The Environmental Study Report, Drainage and Stormwater Management Report, and the Preliminary Flood Remediation Study submitted with the application, were prepared for off-site works/projects and do not address the subject proposal. Accordingly, site specific studies addressing the proposed development on the subject properties are required to support the subject application.

• The proposed Zoning By-law Amendment application proposes the removal of a portion of a Significant Woodland within the City's Greenway System and Natural Core designation of the City's Official Plan. Further, it also proposes the relocation of German Mills Creek. Accordingly, as identified in the Pre-submission letter dated July 9, 2018, the following additional studies/reports are required to support the subject Zoning By-law Amendment application:

i. Tree Inventory and Preservation Plan;

ii. Stream Restoration Plan;

iii. Compensation and Enhancement Plan;

iv. Corridor Reach Analysis;

v. Meanderbelt Analysis;

vi. Fluvial Geomorphic Analysis;

vii. Floodplain Analysis (site specific for this property which includes hydrology and hydraulics, with regard for the fact the downstream flood remediation project works are not proceeding;

viii. Hydrogeological Report reflective of the current development proposal;

ix. Functional Servicing Report and Grading Plan; and Phase 1 and 2 Environmental Investigations reflecting current conditions. The reports submitted are dated 2007 and 2008 and are therefore outdated.

x. a Parking Study is required to justify the proposed reduction;

xi. a Transportation Mobility/Impact Study to demonstrate the feasibility of the proposed development;

xii. a Transportation Demand Management Plan;

xiii. an Access Study, and,

xiv. an On-Site Circulation Plan.

30The City concluded:

The Moving Party's Zoning By-law Amendment Application remains incomplete at the present time and requires submission of, at a minimum, the following outstanding items “ (as above).

31In addition to the Affidavit of Doris Cheng, the City submitted affidavits of City employees Michelle Dobbie, Jeff Walters, Hubert Ng, Tony Chiu, and Rob Nicol. Quentin Hanchard, Associate Director, Development Planning and Permits, TRCA for this Region and the Region of Peel, prepared a supporting affidavit for the City.

32Following a meeting between the Applicant and the TRCA in May 2018, the following e-mail from Doris Cheng dated June 8, 2018, was sent to the Applicant.

Thank you for your patience. Based on the concept that was provided and the meeting on Tuesday May 22, 2018, TRCA has the following comments and provides the following required information which will need to be satisfied as part of the pre-consultation.

33TRCA Involvement with the construction of the site specific Policies.

TRCA staff worked with the Town of Richmond Hill to construct the site specific policies as they exist today. With the proposal as presented, staff does not agree with your consultant team's interpretation of the policies as they were presented in support of the concept application. We believe the concept plan which illustrates the natural core to the north of this site is misleading, as the corridor in this area is significantly wider than shown: Furthermore, it is our position that the intent of the site specific policies was to determine the extent of the floodplain AFTER all of the required works were undertaken in accordance with the infrastructure improvements as per the Environmental Assessment. When those works have been implemented, TRCA recognized that the extent of the floodplain may or may not impact the limit of development on this site (plus the buffer).

TRCA staff have always acknowledged that the subject lands have a very limited development capacity, and with the infrastructure improvements, there was some potential that additional lands may be available. Cornerstone to this, was the need to also include 10766 Yonge Street as part of the overall development. Unfortunately, it is our understanding that 10766 Yonge Street is no longer part of this proposal, as it has been sold, thereby further limiting the development potential for the lands for 19 Leonard Street.

Notwithstanding the location of the floodplain, and how it may change with the overall infrastructure improvements in the area, there remains the issue that the property contains a stream corridor as well as a Significant Woodland as designated in the Region of York Official Plan and the Town of Richmond Hill Official Plan. With the current environmental policies today, TRCA has never suggested in recent years that the full removal of the features to facilitate additional developable lands would be appropriate, or supported on this site.

With this in mind, the proposed concept proposes the' removal of a large portion of natural core/significant woodland. As such, TRCA staff see any proposal on this site as a 2 step process:

Policy Compliance:

Please demonstrate how you have met the requirements of the site specific policies. This includes the approval of the EA for the area, confirming the preferred alternative, attaining confirmation that the funding has been secured to undertake the works by the Town, and that the works are completed which impacts the floodplain on this property.

Once the site specific policies have been met for this site, the proposal needs to be able to demonstrate how the policies within the Town's official plan and the Regional Official Plan have been addressed. (While the site specific policies address the floodplain as the existing limit of development, it does not include the fact that other policies and environmental features on this site would still contribute to the overall limit of development (i.e. limit of significant woodlot and its associated buffer, top of bank, etc.). Please demonstrate how redesignating natural core is appropriate, and consistent with Provincial, Regional, and municipal policies.

34Mr. Hanchard’s affidavit in this matter describes the TRCA’s concerns. It includes:

i. Since the ZBLA application proposes to remove a portion of a Significant Woodland within the City's OP Greenway System and Natural Core designation and the relocation of German Mills Creek, the City advised the Applicant that the application was incomplete and requested additional studies to support the application.

ii. In Mr. Hanchard’s professional opinion, the City’s requirements in the letter of December 16, 2020, are both necessary and reasonable.

35TRCA had provided input to the City's OP Policies governing complete applications, reflecting its role as a commenting agency under the Act, and its role as a regulatory authority under the Conservation Authorities Act. It has the duty to review all Act applications based on the policies outlined in TRCA's Living City Policies, 2014, which is a 'Program' implemented under the Conservation Authorities Act and Ontario Regulation No. 166/06 (“O.Reg 166/06”).

36The Living City Policies have as goals to prevent, eliminate or reduce the risk to life and property from flooding, erosion and slope instability, in addition to maintaining, restoring and enhancing the ecological function of natural systems. These policies operate in parallel to the Provincial Policy Statement (“PPS”) Policies of 2020, and inform TRCA's input into the planning process, as well as its watershed management and Regulatory responsibilities.

37Under O. Reg. 166/06, any development, interference or alteration within a Regulated Area is prohibited, unless approval is provided by TRCA. The entirety of the subject property is regulated by TRCA, pursuant to the above.

38In Mr. Palmer’s affidavit of May 26, 2021, he opines that the planning hierarchy in Ontario establishes a multi-step process, for which different levels of detail (study) are required. Mr. Hanchard agrees in principle with this assertion. In simple terms, the types of applications for individual properties could be said to be seeking to establish first the principle of development - i.e. that a land use and density are appropriate for a given property (or portions thereof). This includes OPAs and ZBLAs. Then the site-specific parameters and detailed design of the development, such as a site plan application, would occur.

39In this Application, he pointed out, the principal drivers of the Natural Core designation are natural hazards (riverine flooding and erosion) associated with German Mills Creek. Based upon current floodplain mapping, the whole of the eastern portion of the property where development is proposed to be located within the floodplain. As well, a stream corridor with a large upstream drainage area, riverine erosion hazards must also be considered.

40Unlike the more general nature of mapping in an OP, a zoning by-law provides precisely defined lines. To do this and to establish the viability of the zones proposed, the Act and the PPS obligate decision makers to ensure that natural hazards are delineated, and that no development occurs within these areas. Natural hazards must be identified at the ZBLA stage. If it cannot be established that the floodplain and natural hazards on this site can be managed as required by provincial, city and TRCA standards, potential development will be limited and/or precluded on the property.

41Several of the studies identified by the City in their letter of December 16, 2020, are for the purpose of delineating and assessing the natural hazards on the site. These include the Corridor Reach Analysis, Meanderbelt Analysis, Fluvial Geomorphic Analysis and Floodplain Analysis.

42Mr. Hanchard testified that he understood that these studies have not been provided to date. These reports are critical to establishing the viability of the zone boundaries proposed, since German Mills Creek is known as an erosive stream, resulting from its highly urbanized context.

43Mr. Hanchard cited the opinion of Mr. Palmer for the Applicant, wherein the two proposed site-specific zoning categories are outlined. These are "Site Specific Open Space" and "Site Specific Mixed Use". The former generally includes the western portion of the subject property, and the latter, the eastern portion. The proposed setback (i.e. the 40-metre stream corridor) appears to be the determinant for the dimension of the proposed Site Specific Open Space zone. This had been used in the affidavits provided by Mr. Schollen as well as Mr. Spitale. However, Figure 16 of Mr. Palmer’s Planning Rationale Report shows the conceptual below-grade plan for the proposed development. This Figure shows that the underground garage would extend significantly into the Conceptual Open Space zone.

44There are natural hazards associated with German Mills Creek (both riverine erosion and flooding), and the Applicant proposes to significantly reduce the open space area where the natural hazards are occurring on site. Therefore, the Corridor Reach Analysis, Meanderbelt Analysis, and Fluvial Geomorphic Analysis are critical, in his opinion, to establishing the extent of the natural hazards on the site. This is needed at present and over the long term, as well as some delineation where development may be appropriate on the site (if at all).

45Mr. Hanchard also noted that to his knowledge, the Applicant has not submitted a Compensation and Enhancement Plan. TRCA does not object to this plan being provided at a subsequent stage of planning approvals, subject to first establishing the viability of the proposed Open Space corridor to achieve a net environmental gain (terrestrial and aquatic), via the other studies required in support of the ZBLA application.

46Also, to his knowledge, the Applicant had not submitted additional floodplain analyses, relying instead upon a Hydraulic Analysis report completed in August 2018. This report provides some site-specific information for potential development on this property taken from the broader flood remediation study for the Yonge and Elgin Mills flood vulnerable area. However, the City has no plans at present to proceed with implementing the preferred option, as it is not funded nor within the City's ten-year capital budget. Accordingly, a proposal for development on the property will need to demonstrate that the floodplain can be remediated from the site, to the satisfaction of TRCA and the City, without the larger works. This must not preclude the preferred option at any future point. This information is critical to determining whether proposed zone boundaries are viable and feasible. In his opinion, the Hydraulic Analysis Report (August 2018) does not address the requirements for a Floodplain Analysis. It does not demonstrate that the floodplain can be remediated without a larger City-led remediation program, consistent with the proposed zone boundaries, while meeting Provincial policy requirements.

47The “complete application” letter also outlined the need for a hydrogeological study. In his opinion, a hydrogeological study must indeed be completed for the ZBLA application. This area of the City is known for high groundwater conditions, which can be a significant impediment to development. A hydrogeological report would specifically assess whether development within the Site Specific Mixed Use zone is viable as proposed, while meeting provincial, York Region, City and TRCA requirements.

48The “complete application” letter also outlined the need for a Functional Servicing Study and Grading Plan. Mr. Palmer for the Applicant had opined that this (and other reports) could be completed as part of subsequent planning applications. He explained that a functional servicing study is typically a high-level assessment, demonstrating that a site can be serviced. More detailed analysis is then often included in subsequent planning applications. In Mr. Hanchard’s opinion, however, a feasibility assessment consistent with a Functional Servicing Study is required at this time to demonstrate that the proposed zone boundaries can be accommodated from a servicing perspective. This would confirm the extent of development proposed within the Site Specific Mixed Use Zone, the potential for high ground water conditions (possibly, a constraint to stormwater management), the limited opportunities that may exist for meeting stormwater management on-site, as well as challenges in accommodating grade transitions within the proposed Mixed Use zone.

49Thus, in his opinion, the requirements listed in paragraph 8 of the City’s letter are necessary and reasonable in order to support the principle of development in the proposed ZBLA on the subject lands.

50Ms. Doris Cheng is a Senior Planner in the City’s Planning and Infrastructure Department, and her responsibilities include processing of planning applications.

51In her review of the application, she had referenced to the City’s Consolidation Form and the City’s Consolidated Development Application guide, both of which are attached to her affidavit. She has reviewed the requirements of the OP (Sections 5.3.4 and 5.3.5) with respect to the complete application requirements. As she understands it, the proposal intends to expand the area of developable lands in accordance with Section 5.3.7. She lists the documents necessary to support any expansion. She has also reviewed and adopted the evidence of the other City witnesses.

52In her extensive affidavit, she sets out and reviews the site description and the process that has occurred, challenges some of the Applicant’s experts’ submissions, and reviews details of the Applicant’s motion. Together with the other City witnesses, she has concluded, in part:

(We) accept that the Required FSR (as defined in the Affidavit of Mr. Rob Nicoll) can satisfy the items listed under 15 and 16. Staff also accept that items 9 and 22 can be provided outside of the current ZBLA Application process provided that these items are submitted during another phase(s) of the overall development approval process.

53Pages 8 and 9 of her affidavit, set out the documentation the City has determined to be outstanding, items (a) to (s), especially the seven planning items. She purposefully discusses the Complete Application Form:

which has been specifically structured to provide administrative staff with standard processing protocol, without which any application becomes a very onerous task on City staff to search for, organize and disseminate the necessary information.

54She takes exception to the Palmer suggestion that all of the information is contained in their submission, but that it is up to staff to seek it out. He also suggested that some information will be provided at another time in the process.

55She discussed the incomplete nature of the Conceptual Plan.

56Based upon Phase 1 and 2 of the Environmental Site Assessments and Supplementary Phase 2 Report dated 2007 and 2008 (which she refers to as out of date), she requires up-to-date reports to deal with the issue of contaminants.

57She deals with the issue of additional requirements by saying that “following the pre-submission meeting, all the requirements will be determined, and it is the Applicant’s risk to determine as set out in the OP that it is otherwise.”

The necessary studies associated with the development, including those pertaining to the feasibility of relocating the creek to the proposed location, must be addressed prior to the establishment of the new Zoning By-law on the site. This will aid in ensuring the City's overall Greenway System is sufficiently protected, that the flood hazard no longer impacts the proposed developable area, and that existing City Services and Infrastructure are not negatively impacted.

58Contrary to the opinion in the Palmer Affidavit, she confirmed that the missing documents, reports and studies must be filed in support of the ZBLA application in order to review and assess the proposed change in land use. This would include a reduction of the Natural Heritage System through the relocation of German Mills Creek, and the removal of a portion of the Significant Woodlands to expand the developable area.

59Section 14 of the Schollen Affidavit states that:

"the scale and scope of the studies related to natural heritage that were submitted to the City were appropriate for an application for a Zoning By-law amendment, and that it is "not reasonable for the City to require such detailed studies before the extent and feasibility of the development parcel can be confirmed.

60Further, Schollen goes on to state that a "Restoration Concept Plan was prepared by my firm that was sufficient to define the limit of development in support of the Zoning By-law amendment application."

61Ms. Cheng provided her professional opinion of these statements. With respect to Schollen's assertion regarding the "scale and scope of the studies provided," she noted that the letter dated October 14, 2014, prepared by Schollen & Company Inc. and attached as Exhibit "C" to his Affidavit was not included as part of the submission package provided by the Applicant. The Restoration Concept Plan referred to in the Schollen Affidavit does not exist. She assumes he is referring to the "Composite Concept Plan", which in her opinion (as per Ms. Dobbie), does not serve the same purpose.

62Regarding his statement that it is "not reasonable for the City to require such detailed studies before the extent and feasibility of the development parcel can be confirmed", in her opinion, until such time as the limit of the Flood Hazard and Natural Heritage System has been relocated and no longer impacts the developable land area, it is premature to change the zone of a property that contains a known Flood Hazard and contamination, without the necessary information to assess the application.

63The Affidavit of Mr. Jeff Walters, a professional engineer and manager, Engineering Subdivisions and Infrastructure Planning for the City, stated that it is necessary and reasonable for the City to require the submission of a Hydrogeological Report. This would identify site specific constraints associated with groundwater or geologic conditions, and demonstrate that the proposed land use and anticipated built form, including underground structures, are feasible. In addition, it would show that impacts associated with temporary construction or permanent dewatering could be mitigated using conventional techniques. The Hydrogeological Report should be based on reasonable assumptions on the depth or range of depth of underground structures and parking. The Hydrogeological Report including any assumptions could be updated based on final field investigations and building design information at the site plan approval stage.

64The joint Affidavit of Messrs. Hubert Ng (Manager of Transportation) and Tony Chiu (Transportation Engineer) with the City affirms that in their professional opinion, the proposed ZBLA requires a Transportation Impact Study, an Access Study, a Parking Study and a Transportation Demand Management Plan to ensure good transportation planning. These are their reasons:

• To ensure that the transportation system can accommodate the newly generated vehicular and person trips, and appropriate mitigations are implemented to accommodate the new trips;

• To ensure that the proposed site accesses are situated in appropriate locations from a transportation safety perspective;

• To ensure that the proposed parking supply can accommodate the future parking demand, once the proposed development is in place; and,

• To ensure that sufficient transportation demand management measures are provided to encourage future residents and tenants to use other non-single occupancy modes of transportation.

65Mr. Robert Nichol is a Certified Engineering Technologist and currently, Project Coordinator – Site Plans for the City. In his current position, he is responsible for processing development applications to ensure municipal infrastructure and private servicing conforms to City standards. He has been involved in the preparation of Development Engineering pre-submission requirements for this development.

66He relies upon section 5.3 5 (d) of the OP, which sets out the Application Submissions Requirements. He also references section 3.1.9.3 of the OP dealing with Master Environmental Servicing Plans, as the subject lands are located within the study area of the 2014 Urban Master Environmental Servicing Plan (“UMESP”) and the application must demonstrate conformity to the UMESP in accordance with the policies outlined therein.

67In her affidavit, Ms. Michelle Dobbie, a planner and Manager, Park and Natural Heritage Planning, relied upon the “complete application” provisions of the OP as well as the evidence of Doris Cheng. She pointed out that:

A Tree Inventory and Preservation Plan is required on sites proposed to be rezoned in order to understand the tree species, size, health and their specific location on the site.

A Stream Restoration Plan is required where disturbance is being proposed to a portion of a key natural heritage feature/key hydrological feature. This Plan allows municipal staff, the public and City Council to understand how the lands will be restored following the disturbance.

68Dealing with the Schollen “Composite Concept Plan” she states:

The Composite Concept Plan that Mr. Schollen refers to as a Restoration Concept plan does not, contrary to what Mr. Schollen states, “illustrate the area that is proposed to be restored along the reach of the realigned watercourse.” The Plan does not label areas that are intended to be restored or include any descriptions or illustrations of what species or ecological techniques are intended to be used to restore the stream corridor if it is relocated from the middle of the subject lands to the west side of the lands. The Composite Concept Plan provided does not include the information typically provided in a Stream Restoration Plan and in my professional opinion should not be accepted as such.

69Mr. Robert Nicholl is Project Coordinator with the City, responsible for processing development applications to ensure that municipal infrastructure and private servicing conform to City Standards and Specifications, the OP, Provincial Acts and Policies and Municipal By-laws, with an emphasis on public safety. He stated:

For the reasons identified above, it is my professional opinion that the Required FSR (Functional Servicing Report) is a necessary and reasonable City requirement to adequately assess the feasibility of the Zoning By-law Amendment proposal for the subject lands. (emphasis added).

FINDINGS AND OPINION

70The Tribunal is not about to determine whether the Applicant’s reports referred to and/or presented in the affidavits are or should be satisfactory for the City’s review. The Act authorises the setting of standards for all developments by way of an OP provision. It appears to the Tribunal that those in Richmond Hill’s OP are of universal application, and are therefore patently reasonable. No other applicant seems to have filed a similar Motion.

71The reports and studies have not been submitted in the detail that the City requires. The Tribunal is not qualified to assess the experts’ reports or submissions; and it has heard only competing evidence on this fundamental issue. Nor does it think that the municipality should have to search the application for the details it requires. The Act conveys a broad authority to municipalities to require supporting materials so long as they are contained in the OP. There is also the suggestion that some of the reports and analysis the Applicant relies upon are not current, and/or requirements have changed.

72The Tribunal finds the affidavit of Quentin Hanchard particularly relevant, since the whole of the subject property is regulated by TRCA pursuant to Ontario Regulation No. 166/06. TRCA would have to authorize any development here.

73The City’s requirements and those of TRCA (which deal with more than the ZBLA requirements) were set out following the meetings in May and June of 2018, with TRCA and the pre-submission meeting. After the pre-submission, the Applicant reduced the proposal so that it required only a ZBLA application. In its view, this was all that was required. That pared-down application was submitted in November 2020, over two years later. At no time does it appear that the Applicant and/or experts met with the City to discuss the proposal and requirements set out following the two meetings (TRCA and pre-submission, both in 2018). Discussion could possibly have eliminated the necessity for this Motion.

74The June 2018 meeting set out what in the Tribunal’s view are significant concerns, limited development capacity and the impact of infrastructure requirements. These were continued in the list of requirements after the pre-submission meeting in 2018, and is also included in the letter following submission of the application in 2020.

75The key to the proposal must be the determination of the developable area of the property, or as suggested, “the principle of development”. These words seem to be differently interpreted by the Parties. Considering TRCA’s concerns from its early meeting of 2018, it all relates to determining what area of the site can be used for development, if any, given the stream change proposed and the rest of the site conditions.

76The study and document requirements here are two-fold. One relates to the documents and reports necessary for the TRCA as a commenting authority to the City, and as well, the TRCA permit process. Then there are the City’s requirements as set out in the OP. These, in the Tribunal’s view, are extensive but necessary, given the OP Special Area provisions applicable to the site given its very nature.

77Based upon the nature and condition of the site, the OP provisions for application content, and the requirements of TRCA should be met or at least discussed. The Tribunal dismisses the Motion.

78It appeared that some of the Applicant’s documentation has been provided in the affidavits in this matter. As well, the staff have reconsidered and readjusted some of the requirements.

79However, the Motion is refused, and the Tribunal looks to the Parties to get together to further consider requirements.

80To respond specifically to the Motion:

Firstly, a declaration that the application for a zoning by-law amendment (“ZBLA”) submitted by the Group on November 20, 2020, to the City contained all of the information and materials required in the Richmond Hill Official Plan, as authorized by subsections 34 (10.1) and (10.2) of the Act, and that these were provided to the City of Richmond Hill.

RESPONSE: NOT PROVIDED as required.

Secondly, an order of the Tribunal determining that the City’s requirements made under Section 34 (10.2) were unreasonable.

RESPONSE: They were NOT UNREASONABLE.

“D.S. Colbourne”

D.S. COLBOURNE VICE CHAIR

“G. Burton”

G. BURTON VICE CHAIR

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.