Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2021

CASE NO(S).: PL200235

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

Applicant and Appellant: Armel Corporation

Subject: Request to amend the Official Plan - Refusal of request by City of Guelph

Existing Designation: Low Density Greenfield Residential

Proposed Designated: High Density Residential, Medium Density Residential, Open Space and Park

Purpose: To permit 678 dwelling units and a park

Property Address/Description: 361 Whitelaw Road

Municipality: City of Guelph

Approval Authority File No.: OZS18-005

OLT Case No.: PL200235

OLT File No.: PL200235

OLT Case Name: Armel Corporation v. Guelph (City)

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

Applicant and Appellant: Armel Corporation

Subject: Application amend Zoning By-law No. 1995-14864 - Refusal of Application by City of Guelph

Existing Zoning: Urban Reserve (UR) and Agriculture (A)

Proposed Zoning: Site Specific

Purpose: To permit 678 dwelling units and a park

Property Address/Description: 361 Whitelaw Road

Municipality: City of Guelph

Municipality File No.: OZS18-005

OLT Case No.: PL200235

OLT File No.: PL200236

Heard: June 14 to 24, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Armel Corporation

K. Mullin

City of Guelph

A. Biggart

DECISION DELIVERED BY M. RUSSO AND STEVEN COOKE AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal was a hearing of the merits for an application that was refused by the City of Guelph (the “City”) to amend the Official Plan (the “OP”) and Zoning By-laws (the “ZBL”) to the property municipally known as 361 Whitelaw Road (the “Subject Site”).

2The Armel Corporation (the “Appellant”) has proposed to intensify the Subject Site by providing a range of mixed dwelling units and designating part of the property to be a park space. City staff recommended approval of the application to Council, but the application was refused on February 10, 2020, with Council citing concerns with the proposed density, traffic, parking, and hydrology issues.

3The applications for the Subject Site would permit a redesignation from Medium and Low Density Residential and a rezoning from Agriculture Zone and Urban Reserve Zone in order to permit High Density Residential above the Medium and Low Density Residential (that is currently allowed) and Open Space and Parks (neighbourhood park).

4The Proposal consists of 678 total residential units with 552 apartment units shared within high-rise buildings ranging in heights from 8 to 9 storeys, and the mid-rise buildings proposed at 5 storeys. The additional 124 residential units are to be in stacked townhouse and townhouse-built forms.

Site Context and Area

5The Subject Site is located at the southwest corner of Paisley Road and Whitelaw Road and is located at the northwest border of the City, abutting the Township of Guelph/Eramosa.

6The Subject Site is 7.01 hectares in size with approximately 190 metres (“m”) of frontage along Paisley Road and approximately 480 m of frontage along Whitelaw Road. The Subject Site is currently vacant, and a portion is actively used as agricultural land.

7To the north of the Subject Site are primarily vacant commercial lands, with some recent commercial construction having occurred that are part of the Paisley/Imperial Commercial Mixed-Use Centre (the “Mixed-Use Node”), which allows mixed-uses as well as heights of up to 10 storeys and densities up to 150 units per hectare. To the west is an identified wetland, woodlot and agricultural lands that are situated in the Township of Guelph/Eramosa. To the east of Whitelaw Road and the Site are vacant lands zoned “General Residential Apartment” with an approved 8-storey building and additional residential units. To the south are existing single detached dwellings along Whitelaw Road and Shoemaker Crescent.

8The Subject Site is designated “Low Density Greenfield Residential” in the OP, with a small portion of the westerly edge designated as “Significant Natural Area”. The northwest portion of the Subject Site is part of the Mixed-Use Node. The Subject Site is currently zoned “Urban Reserve” (UR) along Whitelaw Road and the westerly portion of the Site is zoned “Agricultural” (A) in the Township of Guelph/Eramosa ZBL. The Urban Reserve Zone generally permits agricultural and conservation uses. The Agricultural Zone remains from when the City annexed this portion of the Site from the Township of Guelph/Eramosa.

Core Issue

9The core issue in contention for the hearing of the merits revolved around density, scale of development on the Subject Site, and the height of a number of proposed buildings.

10Both Parties acknowledged the Subject Site is appropriate for development and has the designated land use allowing for growth and development currently.

APPLICABLE LEGISLATION AND POLICIES

11Land use planning in Ontario is a policy-led system implemented in hierarchical fashion. This system is deliberately crafted to recognize that there cannot be a one-size fits all approach to implementing policy framework, given the diversity of Ontario’s local communities. As such, the broader Provincial policies and objectives are to be implemented by each municipality through their OP, ZBLs, issue-specific guidelines, etc.

12In adjudicating these appeals, the Tribunal must have regard to matters of provincial interest enumerated in s. 2 of the Planning Act (the “Act”). The Tribunal must be satisfied that the Proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”), pursuant to s. 3(5) of the Act. Further, the Tribunal must also find that the Proposal conforms with policies of the provincial plan: A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”). Lastly the Tribunal must be satisfied with the proposal’s conformity with the City OP, and that it represents good land-use planning in the public interest.

EXPERT WITNESSES

13The Appellant called four witnesses and each of them provided an Acknowledgment of Expert’s Duty Form and their Curriculum Vitae (“CV”). The Tribunal was asked that they be recognized and qualified as experts in their fields as follows:

i. Hugh Handy – Land-Use Planning;

ii. David Moore – Urban Design;

iii. Julia Salvini – Transportation Planning and Engineering; and

iv. Angela Kroetsch – Transportation Engineering and Design.

14The City called two witnesses and they also provided an Acknowledgment of Expert’s Duty Form and their CV. The Tribunal was asked that they be recognized and qualified as experts in their fields as follows:

i. Franco Romano – Land- Use Panning; and

ii. William Maria – Transportation Planning and Engineering.

15Having heard no objections on the qualifying of the expert witnesses from Counsel and upon review of their CV and Expert’s Duty Form, the Tribunal duly affirmed and qualified the witnesses in their respected fields.

PLANNING AND URBAN DESIGN

The Planning Act

16Section 2 of the Act identifies matters of provincial interest and provides a lengthy list of criteria to which a municipality shall “have regard to” in carrying out its responsibility and evaluating applications for development.

17Mr. Handy provided the opinion that the Proposal indeed has regard to s. 2 of the Act. In his opinion the development efficiently utilizes existing services, provides for a range of housing types, complies with accessibility standards, and does not infringe on any natural features, areas, or functions. He further opined the Proposal includes a range of densities that efficiently uses land and infrastructure while encouraging use of active transportation and transit and provides a pedestrian trail system that will facilitate pedestrian movement through the Site to public transit routes.

18Mr. Handy as well as Mr. Moore opined on behalf of the Appellant, that the buildings include setbacks and step-backs to minimize the height and massing of the buildings along Paisley Road creating a pedestrian-friendly streetscape. Further, both Messer’s opined having the higher buildings towards the north and transitioning south to the mid-rise built form, to townhouse and to the parklands proposed, exemplifies orderly development of safe healthy communities, with a full range of housing options proposed.

The Growth Plan

19Section 2.2.1 of the Growth Plan outlines the growth management policies of Ontario.

20Policy 2.2.1.2 provides for forecasted growth to be allocated based on the following:

a) the vast majority of growth will be directed to settlement areas that:

i. have a delineated built boundary;

ii. have existing or planned municipal water and wastewater systems; and

iii. can support the achievement of complete communities;

b) growth will be limited in settlement areas that:

i. are rural settlements;

ii. are not serviced by existing or planned municipal water and wastewater systems; or

iii. are in the Greenbelt Area;

c) within settlement areas, growth will be focused in:

i. delineated built-up areas;

ii. strategic growth areas;

iii. locations with existing or planned transit, with a priority on higher order transit where it exists or is planned; and

iv. areas with existing or planned public service facilities;

21Strategic Growth Areas are defined as follows:

Within settlement areas, nodes, corridors, and other areas that have been identified by municipalities or the Province to be the focus for accommodating intensification and higher density mixed uses in a more compact built form. Strategic growth areas include urban growth centres, major transit station areas, and other major opportunities that may include infill, redevelopment, brownfield sites, the expansion or conversion of existing buildings, or grey fields. Lands along major roads, arterials, or other areas with existing or planned frequent transit service or higher order transit corridors may also be identified as strategic growth areas.

22Mr. Handy opined that the Proposal conforms with the policies of s. 2.2.1 above and conform with s. 2.2.1.4, the establishment of complete communities that:

a. feature a diverse mix of land uses, including residential and employment uses, and convenient access to local stores, services, and public service facilities.

b. improve social equity and overall quality of life, including human health, for people of all ages, abilities, and incomes.

c. provide a diverse range and mix of housing options, including additional residential units and affordable housing, to accommodate people at all stages of life, and to accommodate the needs of all household sizes and incomes.

d. expand convenient access to:

i. a range of transportation options, including options for the safe, comfortable, and convenient use of active transportation.

ii. public service facilities co-located and integrated in community hubs.

iii. an appropriate supply of safe, publicly accessible open spaces, parks, trails, and other recreational facilities; and

iv. healthy, local, and affordable food options, including through urban agriculture.

e. provide for a more compact built form and a vibrant public realm, including public open spaces.

f. mitigate and adapt to the impacts of a changing climate, improve resilience, and reduce greenhouse gas emissions, and contribute to environmental sustainability; and

g. integrate green infrastructure and appropriate low impact development.

23Mr. Romano opined in contrast that the Proposal does not conform to the policies of the Growth Plan. It was his position that the Proposal fails to be in a Built-Up Area, the City’s Downtown, an Intensification Corridor or in proximity of a Major Transit Station. He further opined that even when meeting certain criteria such as being located within a Mixed-Use Node, only a portion of the Subject Site falls within the periphery of the Node.

24The City’s submission was that the evidence provided by the Appellant has put emphasis and justified the Proposal’s magnitude of development, on the Subject Lands being partially within a Mixed-Use Node. However, Mr. Romano disagreed with this assertion and brought the Tribunal to s. 5.2.5.8 of the Growth Plan, which states:

The identification of strategic growth areas, delineated built-up areas, and designated greenfield areas are not land use designations and their delineation does not confer any new land use designations, nor alter existing land use designations. Any development on lands within the boundary of these identified areas is still subject to relevant provincial and municipal land use planning policies and approval processes.

25The Appellant did not dispute the land use designation and submitted an official plan amendment (“OPA”) and zoning by-law amendment (“ZBLA”) were required to facilitate the Proposal. However, the Growth Plan provides direction and outlines the growth management policies of Ontario as indicated. The Appellant’s submission was that the Growth Plan does not limit development to only occur in the Strategic Growth Area and it is the policies themselves that dictate growth management within the Growth Plan.

26Policy 2.2.7, Designated Greenfield Areas states:

1. New development taking place in designated greenfield areas will be planned, designated, zoned and designed in a manner that:

a) supports the achievement of complete communities;

b) supports active transportation; and

c) encourages the integration and sustained viability of transit services.

2. The minimum density target applicable to the designated greenfield area of each upper-and single tier municipality is as follows:

The Cities of Barrie, Brantford, Guelph, Hamilton, Orillia and Peterborough and the Regions of Durham, Halton, Niagara, Peel, Waterloo and York will plan to achieve within the horizon of this Plana minimum density target that is not less than 50 residents and jobs combined per hectare.

3. The minimum density target will be measured over the entire designated greenfield area of each upper-or single-tier municipality, excluding the following:

a) natural heritage features and areas, natural heritage systems and flood plains, provided development is prohibited in these areas;

b) rights-of-way for:

i. electricity transmission lines;

ii. energy transmission pipelines;

iii. freeways, as defined by and mapped as part of the Ontario Road Network; and

iv. railways;

c) employment areas; and

d) cemeteries.

27The Growth Plan in s. 2.2.7 requires that the minimum density target applicable to the OP land use designation in the Greenfield area of the City is 50 residents and jobs combined per hectare, as indicated above. It is uncontested that this provincially mandated target is being met and is forecasted to continue to be met. The City’s submission is that this demonstrates that there is “no need” for the Proposal’s large deviation from what is allowed, low to medium growth, meeting the City’s vision while still contributing to the minimum density targets.

28It was the City’s submission and Mr. Romano’s evidence that the Subject Site’s current OP designation conforms to, and does not conflict with, the Growth Plan. Council’s decision on the application does not affect the implementation of the Growth Plan policies or give rise to a conflict or non-conformity with those policies.

The Provincial Policy Statement

29Mr. Romano testified that the Proposal incorporates a high-density form of development which is inappropriate for this location and represents an overdevelopment of the Subject Site. The Proposal therefore is not consistent with the PPS.

30He opined, in implementing the PPS, the OP identifies appropriate locations where development, intensification and redevelopment are to be accommodated. These are shown on Schedule 1 – Growth Plan Elements of the OP. The Subject Site is not within the Built-Up Area where the City has prioritized growth. Rather, it is within the Greenfield Area where less intense forms of development are directed.

31In formulating his opinion, Mr. Romano took direction from Policy 1.1.3.3 which states:

Planning authorities shall identify appropriate locations and promote opportunities for transit supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, including brownfield sites, and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs.

Mr. Romano opined that the Subject Site not falling within the Built-Up Area identified by the City, being at the periphery geographically of the City (opposed to the Downtown), not being in proximity to Major Transit Station or within a Intensification Corridor fails the test of consistency above, in s. 1.1.3.3 and therefore is not appropriate for the density proposed.

32Mr. Handy in contrast gave his opinion that the Proposal is consistent with the PPS and provided several policies in support of his opinion. In his opinion, the Subject Site is located within a Mixed-Use Node, which the City has acknowledged may accommodate additional density in accordance with approved community mixed use node principles. Therefore, not falling in the land use areas put forward by Mr. Romano, does not preclude, nor prohibit the Proposal. Mr. Handy opined it is the Proposal’s overall relation to the surrounding amenities and services combined with its transitioned more dense growth within the Mixed-Use Node diminishing to a proposed park, that support the Proposal’s overall consistency with policies of the PPS, and in his opinion the appropriateness of the Proposal.

33Mr. Handy stated that the Proposal is consistent with s. 1.1.1, establishing a healthy, livable and safe community, of the PPS. Subsections of this policy speak to promoting efficient development and land use patterns while accommodating an appropriate mix and range of residential units. Further, this policy strives to promote transit supportive development and improve access to elderly or those with disabilities while avoiding public health and safety concerns and minimizing land consumption and servicing costs.

34It is uncontested that the Subject Site falls within the Settlement Area of the City prescribed by the province and where growth is promoted as indicated in s. 1.1.3.1.

35Section 1.1.3.2 states that settlement areas are to be based on densities and a mix of land uses which efficiently use land and resources. Mr. Handy opined the Proposal achieves and is consistent with this policy. He further provided evidence in his testimony that the Proposal being in close proximity to public transit, public service facilities, and having sufficient infrastructure in place, while being pedestrian friendly and providing active transportation connections, minimizes climate change concerns in further support his opinion of consistency to the PPS.

36Mr. Handy provided his opinion that the Proposal is consistent with s. 1.4.3, and as he previously indicated, provides for a range and mix of housing choices and is a Compact Urban Form. Its proposed land use pattern encourages efficient land use, walkable communities and mixed land uses. Further, Mr. Handy responded to the Mr. Romano’s criticism that the Proposal lacks the mixed land use required in the definition of Compact Urban Form. To this Mr. Handy opined that mixed use is encouraged, not an absolute requirement. With ample retail/commercial developments existing and proposed to the immediate north of the Subject Site, the Proposal focuses on the built forms ranging from townhouse to apartment. In his opinion, this creates a true complete community and a harmonious as well as compatible fit that is consistent with the PPS.

37The Proposal is consistent with s. 1.5.1, the promotion of healthy active communities, in the opinion of Mr. Handy. The inclusion of active transportation connections on Site combined with pedestrian friendly connections to the community and onsite, as well as the inclusion of a neighbourhood park proposed, aid in formulating his opinion. Mr. Handy further opined that the factors above, combined with having transit in close proximity further highlight consistency with s. 1.6.7.4, minimizing vehicular dependency and s. 1.8.1 preparing for and mitigating climate change.

The Official Plan

38The City submits that schedule 1 of the OP, the Growth Plan elements map depicts the following:

i. The Site is not located in proximity to a Major Transit Station

ii. The Site is not located in an Intensification Corridor;

iii. The Site is partially located within the depiction of a Community Mixed Use Node;

iv. The Site is not within the Urban Growth Centre; and

v. The Site is within the Greenfield Area.

39Further the City submitted, the Subject Lands are already afforded greater permissions than many other low-rise residential sites throughout the City. Low Density Residential permits a maximum height of 3-storeys and 35 units per hectare. The Subject Site, with its designation of Low-Density Greenfield Residential, already permits a much higher density than permitted in the Low-Density Residential designation. Low Density Greenfield Residential permits a height of 6-storeys and a maximum density of 60 units per hectare and a minimum density of 20 units per hectare.

40Mr. Handy confirmed that the Low-Density Greenfield designation allows for growth as provided above. He did although note, that the units per hectare could be increased to 100 with available density bonussing. He opined, the current designation is not necessarily a limitation, that it reinforces the Strategic Goal of the City to develop the Subject Site into a complete community. He opined that the increased density can be justified interpreting the policies in their entirety, not dissected one by one. It was Mr. Handy’s conclusion that the evolution of the area combined with the many attributes of the Proposal demonstrate conformity with the OP.

41Mr. Romano opined that s. 1.3.14 reinforces the Proposal’s non-conformity and the City’s position that there is “no need” for the intensity of the Proposal, particularly citing subsections:

iii. Suitability of the site or area for the proposed use, particularly in relation to the other sites or areas of the City.

iv. Compatibility of the proposed use with adjacent land use designations

v. The need for the proposed use, in light of projected population and employment targets.

42The submission of the Appellant was that s. 1.3.14 is indeed part of the interpretation of the OP, however, the OP also includes s. 1.3.1. Section 1.3.1 instructs the reader to read the OP in its entirety as a policy framework, and that no provision is elevated above others, as also opined by Mr. Handy. The Appellant also submitted that s. 1.3.14 and subsections within are not determinative or overriding, as somewhat suggested by Mr. Romano.

43Mr. Moore opined that the Proposal has gone to great lengths to respect and incorporate urban design principles that are appropriate and within the policies of the City OP. These include and are not limited to appropriate separation distances, public realm, setbacks and stepbacks, with the use of angular planes to justify the built forms proposed. The Proposal has submitted shadow studies that have demonstrated no negative impacts to neighbouring homes or buildings. Mr. Moore opined that the Proposal is an attractive, well designed complete community that transitions well to the low-rise built form existing to the south.

44Mr. Romano stated the OP requires the Proposal to be generally consistent to the concept plan. Further, he opined the concept plan envisions taller buildings generally be located near the Main Street / Elmira Road intersection or some distance away from the Subject Site. The Subject Site is at the periphery, outside of the node elements and containing no streetwall building elements.

45Mr. Moore in his reply witness statement responded to this opinion of Mr. Romano and his reference to taller buildings being generally near the Main Street / Elmira Road intersection within the concept plan. In reply, Mr. Moore makes the distinction that “generally” does not mean “only”.

46Mr. Moore provided evidence that the concept plan was developed in 2012. There has been significant natural evolution in the area, and the concept plan itself had written into it, the intention of the plan to evolve. This is demonstrated by the lands across the street to the east also not having been depicted in the concept plan, but now having approvals for an 8-storey building. Mr. Handy opined similar conclusions could be derived from how the north side of Paisley Road has developed. Where high density was conceptualized, but the area has primarily developed to provide low rise commercial big box stores.

47Mr. Handy provided his opinion that the Proposal conforms with s. 9.3.1.1 of the OP which sets out development criteria for multi-unit residential buildings and intensification proposals.

48The Appellant’s submission was that the introductory text of s. 9.3.1.1 says the criteria will be used to assess “development” proposals for multi-unit residential within all designations. Further the OP definition of “development” explicitly includes in subsection (a) – a change in land use requiring Act approval, which includes, as is sought by the Proposal, a ZBLA or OPA. Therefore, it is reasonable to conclude these criteria are relevant to question the appropriateness of redesignation, and the only evidence before the Tribunal (opined by Mr. Handy) is that the criteria are met.

49Mr. Handy opined that the Proposal conforms to s. 9.3.4 (medium density residential policy) and s. 9.3.5 (high density residential policy).

50It was the opinion of Mr. Handy that the Strategic Goals of the City of planning for complete communities, utilizing existing infrastructure and amenities, pedestrian friendly and inclusion of active transportation and proximity to public transit, are met with the Proposal. The Proposal’s fulfilling of these goals for Mr. Handy is indicative of good land-use planning in the public interest.

51In contrast, Mr. Romano opined that the current designation achieves the Strategic Goals of the City and the Proposal is an overdevelopment that is not required.

52Mr. Handy stated that the Urban Structure of the Proposal and set out by the City in its current Low-Density Greenfield designation is not static and are often blending and overlapping with other urban structures (examples being: Built-Up Area, Urban Growth Centres, Mixed Use Nodes etc.). It is the evolution of the area (including the approved 8-storey building across the street, not in the Built-Up Area but similar to as proposed in the Mixed-Use Node) and the Proposal’s compact built form and ability to expand on characteristics sought in Urban Structure in areas of walkability, active transportation and many others mentioned that support the increased density sought and that fulfill provincial interests and City Strategic Goals.

53Mr. Romano opined the proposed ZBLA provides for an increased intensity of development which does not conform to the OP policy framework and conflicts with provincial policy.

54Mr. Handy opined that the Proposal does not conflict with provincial policy and as opined conforms and is consistent with provincial interests. Further conforming with the City OP and strategically developing the Site in an appropriate well thought out design as follows:

a) “Specialized High-Density Apartment” (R.4B-22(H)) Zone on the north end of the Site that is part of the Mixed Use Node.

b) “Specialized General Apartment” (R.4A-55(H)) Zone on the mid-rise apartments in the middle of the Site; and

c) “Specialized Cluster Townhouse’ (R.3-66(H)) Zone on the southerly end of the residential portion of the Site.

d) The most southerly portion of the Site is proposed to be zoned “Neighbourhood Park (P.2) Zone” for the proposed Neighbourhood Park, and a small portion of land along the woodlot on the westerly side of the Site is proposed to be rezoned to “Conservation Land (P.1) Zone” to reflect the small area that acts as part of the 30 metre buffer to the adjacent heritage feature.

55Mr. Handy opined the ZBLA proposed further mitigates potential concerns by proposing a Holding Provision (H) be placed on the proposed residential zones to ensure that Whitelaw Road is redesigned and reconstructed prior to site development, also ensure the Owner submits a detailed Energy Strategy Report to show how the proposed buildings will be designed and constructed in a manner that contributes to the City’s Community Energy Initiative.

TRANSPORTATION

Driveway to Arterial Road

56Ms. Salvini provided the Tribunal her summary opinion that the Proposal with three entrance points was appropriate. The Whitelaw Road traffic concerns can be immediately remedied by appropriate road markings and signage and eventual road widening allowing for an additional right turn lane. Lasty, in her opinion, there are no unacceptable safety concerns created by the Proposal.

57Mr. Maria, opined in contrast, that the three entrances are inappropriate and specifically the Paisley Road access point does not conform to the City’s Traffic Impact Study Guidelines (s. 3.8.1), as the demonstration of “need” has not been fulfilled.

58Ms. Kroetsch, also in support of the Appellant, testified that the “need” that Mr. Maria had referred to, was assessed by City staff as well as the Appellant’s consultants. In her opinion, the Paisley Road access is an improvement to the Original Proposal and does conform to the City’s design guidelines for driveway access to arterial roads, as well to the Geometric Design Guide for Canadian Road, issued by the Transportation Association of Canada (the “TAC”).

59Mr. Maria opined that Ms. Salvini’s chosen proxy sites were qualitatively different and had conditions differing from the intersection of Whitelaw Road and Paisley Road. Therefore, he opined the current transportation conditions are not appropriate to support the intensity of the Proposal and as such, creates a safety concern from his perspective.

Northbound Left Turn and Associated Traffic Concerns

60Ms. Salvini opined that the future traffic operations at the Paisley and Whitelaw intersection would be an acceptable level in 2030 with a northbound left turn lane.

61Ms. Salvini testified that the addition of a northbound left turning lane would improve the overall traffic conditions on Whitelaw Road Northbound, while still allowing space for right tuning vehicles to bypass and proceed onto Paisley Road (not optimal, but possible). The inclusion of a right-turning lane to bypass left-turning vehicles, would be optimal and be the best alterative for the intersection. These traffic improvements have already been identified by the City and Ms. Salvini opined are likely to occur in time with or without the Appellant’s specific Proposal.

62Mr. Maria conceded to these opinions shared by Ms. Salvini in cross-examination.

63Ms. Kroetsch provided testimony and overall conclusions in line with Ms. Salvini’s evidence and provided her professional opinion that:

a) a westbound left turn lane can be accommodated at the Paisley Road and Whitelaw Road intersection; and

b) that the design of the Site access to an arterial road (Paisley Road) complies with the standards and criteria outlined in the City of Guelph Development Engineering Manual (Version 2.0 dated January 2019), including the TAC manual (2017) requirements for stopping sight distance and decision site distance.

64Ms. Kroetsch also had prepared a drawing based on the City’s collector road standards, which depicted alternatives with northbound traffic on Whitelaw Road, including the left turning lane with and without the right turning lane as well.

Transportation Safety Issues

65On the issue of the transportation safety, it was the submission of the Appellant that specific evidence provided by Mr. Maria, pertaining to the Paisley and Whitelaw intersection was introduced in his testimony and was not in his witness statement, namely:

i. the TAC manual requiring 200 m separation between intersections

ii. And City engineering design guidelines requiring 100 m

66In cross-examination, Mr. Maria did acknowledge that the 200 m TAC requirement applies in “areas of intense development” which both Parties put forward this area is not. He also acknowledged that the intersection arrangement and distance is an existing condition that would have to be dealt with regardless of the intensity of development on the Subject Site.

67The Appellant additionally submitted that in cross-examination, Mr. Maria admitted that the separation distance more accurately speaks to driveways not intersections. Also, the 100 m requirement does not apply to multi-residential driveways.

68Ms. Kroetsch opined the Proposal has considered and has mitigated any transportation safety issues. More importantly in their opinion, any remaining perceived safety issues may be dealt with more appropriately at the site plan stage and the proposed Holding condition provides additional surety and opportunities to refine and deal with any safety issues, if any, are still deemed to exist or to be relevant by the City and their staff.

69Ms. Salvini shared the same opinion as Ms. Kroetsch and further opined that changes to the intersection of Whitelaw and Paisley have already been contemplated and reviewed by the City, irrespective of the current Proposal and concurred that the site Plan stage is when these technical aspects are often reviewed. She provided in her witness reply statement (page 8) possible configurations and diagrams that have been submitted to the City.

Proposed Resident and Visitor Parking

70The Proposal includes a parking provision of 1.1 spaces per unit, including 0.1 spaces per unit for the apartment uses (or 608 spaces for 552 units) and 1.2 spaces per unit including 0.2 spaces per unit for the townhouse units (or 152 spaces for 126 units). The total amount of parking proposed is 760 spaces including 678 spaces for residents and 82 spaces for visitors. The Proposal includes the same amount of resident parking and fewer spaces for visitors relative to the general ZBL requirements. The Proposal is deficient by 88 spaces.

71The witnesses further agreed that the residential parking rate was appropriate and concerns only remained with the visitor rate being deficient.

72Ms. Salvini opined the 0.1 slight parking reduction sought is appropriate and meets the mixed-use designation recognizing only residential uses are proposed. She opined the IBI study provided in evidence and the three proxy studies used to derive her findings demonstrate the sufficiency of the parking provided, aided by the Proposal’s proximity to public transit and overall trend moving away from automobile dependency.

73Mr. Maria opined that the reduction in visitor parking is not supportable as the Proposal is in fact entirely residential as noted and the mixed-use philosophy of rapid visitor turn over does not apply. Also, he was not convinced of the suitability of the proxy sites studied and that their findings are comparable to the Proposal. Mr. Maria opined that transit service, active transport and walkability of the proposed site are quite inferior to the proxy sites studied.

PARTCIPANTS

74Three participants were granted status for these proceedings. The Tribunal reviewed the participant statements provided and considered the information within its overall analysis of the matter.

75Five primary concerns were cited by the participants, which generally focused on:

i. The Proposal’s conformity to the City’s urban structure, strategic goals and representation of good planning and in the public interest.

ii. The form and content of the implementing ZBL and the Proposal’s conformity to the OP.

iii. Are there any adverse impacts created with the Proposal’s approval to the surrounding area or adjacent properties?

iv. Does the Proposal represent good planning?

v. General transportation concerns.

Other concerns not relevant to land-use planning or beyond the scope and authority of the Tribunal were not dealt with by this Panel.

76Having heard the evidence provided from the witnesses during testimony and within their witness statements, the Tribunal is satisfied the concerns of the participants were raised and spoken to during the hearing.

Recommended Conditions

77Mr. Romano stated that the proposed conditions of approval are not appropriate. His primary concerns were that significant matters are left to a future date or the site plan stage, with no certainty as to their completion and timing.

78Mr. Handy conversely opined the conditions are appropriate and have been well thought out and encompass the interests of the Appellant while protecting the interests of the City. Significant matters are not left to future dates, they are conditions set out that are subject to the site plan which is appropriate and quite common in the development process. Further the conditions have been analyzed as well as contributed to by City staff and deemed supportable. Lastly, Mr. Handy opined that the ZBLA being subject to two Holding provisions is appropriate and mitigates potential concerns.

79Mr. Romano opined that the appeals should be dismissed, however in the event the Tribunal grant the appeals, in his opinion it would be appropriate that the Tribunal order that the proposed ZBL be amended to identify the exact land area that is to be zoned High-Density Residential and Medium-Density Residential for the purpose of ensuring that the number of units to be developed on each parcel is appropriately limited within the by-law.

80To the above, Mr. Handy’s evidence was that the limit is defined by the map provided and as part of site plan approval, the Owner will have to show how the proposed number of units complies with the maximum density. Therefore, in his opinion the distinction between high and medium densities for the Proposal is well mapped out and does not require any further amending.

Analysis and Findings

81The Tribunal having heard the testimony and with its review of the witness statements, is more so persuaded by the opinions of Messrs. Handy and Moore than those offered by Mr. Romano on matters pertaining to the Act. The provincial interests of the Act are broad, higher level interests that the Tribunal finds have been met by the Proposal with the comprehensive testimony of Messrs. Handy and Moore, and their evidence presented on relevant criteria of s. 2 (a-s).

82The Tribunal has had regard to Council’s decision on the matter, as set out in s. 2.1(a). With this, the Tribunal accepts the position of the Appellant and submissions by Counsel that there were no technical comments in support of Council’s refusal, particularly in light of City staff’s recommendation of approval. In its analysis, the Tribunal also has had regard to s. 2.1(b) and the information that Council had before it when making its decision. The Tribunal finds that the opinion provided by Mr. Handy that Council’s concerns regarding density, traffic, hydrology and reduced parking were in fact addressed through various studies before Council, including Traffic Impact Study, Hydrogeological Study and various others that supported the approval of the Proposal.

83The Tribunal is tasked to determine conformity of the Proposal to the Growth Plan. From the evidence provided, the Tribunal is persuaded more so by the opinions of Mr. Handy and submissions of the Appellant, particularly on sections cited above but not limited only those.

84The Tribunal does not accept the position that the Proposal does not conform with the Growth Plan because it does not fall within the Growth Areas identified (Built-Up Area, the City’s Downtown, an Intensification Corridor or in proximity of a Major Transit Station). The Proposal’s failure to be within those areas at no point within the Growth Plan is deemed to be prohibited. The Tribunal finds conversely that it does fall within a Strategic Node and as directed “growth is focused within that node”. The numerous other policies that the Proposal adheres to and evidence provided, satisfy the Tribunal on the conformity of the Proposal in its entirety with the Growth Plan.

85The Tribunal is not satisfied by the position “there is no need for the Proposal” and that the current land use designation of the Subject Lands already conforms to the Growth Plan. It is the Proposal itself that must be evaluated and its conformity to the policies of the Growth Plan.

86The Tribunal also accepts the opinion of Mr. Handy and the submissions of the Appellant, that the 50 persons and jobs per hectare imposed by the Province is a minimum. Achieving that threshold does not preclude a municipality of surpassing it. It is in fact, good land-use planning to continue to implement good growth when proposed. Good land-use planning does not simply cease or limit growth because of a threshold, it continues to test the Proposal against the policies they are subject to.

87The Tribunal, when considering the appeals before it, is tasked to determine if what is proposed is consistent with the PPS. Whether, a less dense proposal would be consistent with the PPS is not before the Panel, nor does it preclude the Proposal before it. The merits of what is being proposed, and its consistency with the PPS, is the basis on which the Tribunal is to make its determination.

88The Tribunal is therefore persuaded more so by the opinions provided by Mr. Handy and finds that the Proposal is consistent with the PPS. The inclusion within the Mixed-Use Node and the range of units proposed, as well as the evolving area support this opinion. Further the amenities, public service facilities and infrastructure in place, combined with the pedestrian and active transportation incorporated within the Proposal, demonstrate consistency with provincial interests and with the PPS.

89The Tribunal has considered the evidence provided by the witnesses relevant to the City OP. In its analysis, the Tribunal has weighed into its findings, the opinion evidence of Mr. Handy (and conceded in cross-examination by Mr. Romano), which highlighted s. 9.3.3.4. This OP policy made it clear that the Subject Site has available to it and meets policy through bonussing (and being on an Arterial route) to develop up to 100 units per hectare with no OPA being required.

90The Tribunal does not accept the argument that the Proposal is outside the Urban Structure, thus does not conform to the City’s growth strategy. These lines are not absolute without flexibility. They are strategic boundaries, with strategic concepts in mind. The Tribunal when considering how development has evolved to the north of the Subject Site finds it reasonable to conclude, if area developments do not meet the densities set out in that area (mid and high density residential) or in fact provide no residential at all, it is logical to amend and shift some density to abutting areas identified to encompass growth in a similar manner and sharing many of the same geographical and already developed amenities.

91The Tribunal finds that the Proposal conforms to the City OP. The Tribunal is satisfied and is persuaded more so by the opinion evidence provided by Messrs. Handy and Moore, that was premised more so on the Proposal before the Tribunal, verses in contrast, the Subject Site’s current designation meeting the objectives and goals of the OP, and of the increased density sought “not being needed”.

92The Tribunal did consider Subsection V in s. 1.3.14, and the argument of “need”, as it is indeed a subsection of policy in the OP. This differs to the weight of the argument when put up against the Growth Plan or PPS, where no policy consists of the “no need” argument. However, the Tribunal did consider the submission of the Appellant that specific subsections are not determinative or overriding.

93The Tribunal having considered the testimony and written statements of the witnesses pertaining to transportation prefer the opinions of Mmes. Salvini and Kroetsch.

94The third driveway access (Paisley Road) although discouraged, is not prohibited by policy and can be provided with safety concerns being addressed in the opinion of Mmes. Salvini and Kroetsch. The Tribunal finds the proposed three access points, are a better alternative in terms of simple functionality (three access points verses two). With the evidence provided by Ms. Kroetsch that compliance is provided with the City Transportation Manuel and Canadian Transportation Association, the Tribunal finds this third access point to be appropriate.

95The Tribunal is satisfied that the intersection at Paisley Road and Whitelaw Road can function in a safe manner. Although improvements will benefit the current situation, the Tribunal also concurs that the site plan stage can address any technical concerns. Further, the Tribunal is satisfied that the inclusion of a Holding provision included prior to any development to satisfy outstanding concerns, further eliminates any uncertainty and the need to demonstrate compliance at this time.

96Lastly, the Tribunal is satisfied that the issue of visitor parking has been addressed and accepts the conclusions of Ms. Salvini and the proxy site findings used in her analysis support the reduction. The Tribunal finds that the visitor parking reduction proposed is appropriate and does agree that the walkability as well as public and active transportation already in place and proposed are sufficient. The opinion of Ms. Salvini that likely improvements will follow in public transportation, with greater demand and active transportation improvements are incorporated within the Proposal itself were both satisfactory to the Tribunal.

Decision

97The Tribunal has considered all information that the Parties have provided and is satisfied that the scale and built form proposed by the Appellant on the Subject Lands are appropriate for the area and compatible with the existing and evolving context of the area.

98The Tribunal is satisfied that all issues provided in the Procedural Order for this hearing have been addressed and the evidence provided supports the approval of the Proposal.

99The Tribunal having heard the testimony of the witnesses and having been provided submissions by Counsel and reviewing the evidence provided in its totality finds that the Appellant’s Proposal and both the OPA and ZBLA sought, have regard to s. 2 of the Act as required. The Proposal is consistent with the PPS and conforms to the Growth Plan and the City OP and represents good land-use planning in the public interest.

ORDER

100THE TRIBUNAL ORDERS that the Official Plan Amendment appeal is allowed, and the Official Plan for the City of Guelph is amended as set out in Attachment 1 to this Order.

101THE TRIBUNAL ORDERS that the Zoning By-law Amendment appeal is allowed, and the City of Guelph is directed to amend By-law (1995) – 14864 as set out in Attachment 2 to this Order.

“M. Russo”

M. russo

Member

“Steven Cooke”

steven cooke

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.

PL200235 – Attachment 1

PL200235 – Attachment 2