Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 17, 2021

CASE NO(S).: PL210276

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Dustin Gosnell

Subject: Proposed Official Plan Amendment No. 33

Municipality: City of London

OLT Case No.: PL210276

OLT File No.: PL210276

OLT Case Name: Gosnell v. London (City)

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

Appellant: Dustin Gosnell

Subject: By-law No. Z.1-212914

Municipality: City of London

OLT Case No.: PL210276

OLT File No.: PL210277

Heard: In writing

APPEARANCES:

Parties	Counsel
City of London and Housing Development Corporation London	Aynsley Anderson Vanetia R
Dustin Gosnell	Self-represented

DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL

BACKGROUND

1The City of London Housing Development Corporation ("City Housing") is proposing to redevelop the site at 345 Sylvan Street (the “Subject Lands”) for a three-storey apartment building containing 42 dwellings units consisting of modestly sized apartment units (one bedroom units with floor areas of approximately 42 square metres (“m²”)) in order to meet affordability criteria. The proposal would also provide 22 outdoor parking spaces. It made applications for Official Plan and Zoning By-law Amendments in order to proceed. The applications were approved by City Council and appealed to this Tribunal by Dustin Gosnell (the “Appellant”).

2The Tribunal had set a hearing via video conference scheduled to commence on November 3, 2021 with three days set aside. The hearing was subsequently converted to a written hearing following a request by the City with the consent of the Appellant. There were no requests for party or participant status made to the Tribunal.

3The Materials before the Tribunal on this hearing are the following:

1. Appellant’s Submission filed with the Tribunal on October 4, 2021;
2. Affidavit of Affidavit of Lief Maitland sworn October 20, 2021;
3. Affidavit of Craig Smith, sworn October 20, 2021;
4. City’s Submissions dated October 21, 2021; and
5. Appellant’s Response dated November 1, 2021.

Appellant Evidence

4The Appellant explains in his submission that he has resided with his family at 337 Balderstone Avenue in the general vicinity of Baseline Road, west of Wellington Road and has lived in the neighbourhood for approximately 20 years.

5His home abuts the lands that are subject to the Official Plan and Zoning By-law Amendment applications. His appeal is based upon the following grounds:

a. the neighbourhood is poorly served by parks; b. the proposed development represents an intensification of the neighbourhood, contributing new housing that will result in increased demands on municipal services including parks; and c. the rezoning application should be rejected until such time as the City provides additional parkland in the neighbourhood or an alternative redevelopment plan is drawn up that accommodates a small playground on a portion of the Subject Lands.

6The Appellant maintains that the City’s Parks and Recreation Master Plan categorizes the City’s parkland as follows:

• City-wide Parks;
• District Parks;
• Neighbourhood Parks;
• Urban Parks;
• Civic Parks; and
• Facility Parks.

7There are six parks according to Mr. Gosnell, within the area bounded by Commissioners Road (south), Wellington Road (east), Wharcliffe Road (west) and Grand Avenue/Elwood Avenue (north) as follows:

Park/Address	Type	Size	Facilities
Rosel Park 21 Rosel Crescent	Open Green Space	0.4 ha	n/a
Gartshore Park 197 Wellington Road	Open Green Space	0.6 ha	n/a
Duchess Avenue Park 26 Duchess Avenue	Neighbourhood Park	0.48 ha	One play structure, one swing set, paved path, accessible
Dunkirk Place Park 15 Dunkirk Place	Neighbourhood Park	0.48 ha	One play structure, one swing set, paved path, accessible
Farquharson Arena 411 Tecumseh Avenue East	Facility Park	0.37 ha	Arena only, no other park facilities
The Green 165 Elwood Avenue	Urban Park	2.0 ha	YMCA Child Care, two mini soccer fields

8There are no City-wide, District Parks or Civic Parks within the neighbourhood and neither Farquharson Arena nor The Green offer Neighbourhood type park facilities according to Mr. Gosnell. Duchess Avenue Park and Dunkirk Place Park contain play structures and swing sets. Rosel Park and Gartshore Park offer passive park use only.

9The Master Plan according to Mr. Gosnell includes several service levels and standards for parks and recreational facilities including:

a. The existing service levels for parkland is 2.2 hectares (“ha”) per 1,000 residents. This standard applies City-wide and includes all parkland types. According to the Master Plan, this service level will be maintained in the future. b. The City has established service standards for different types of facilities (i.e. indoor swimming pools, arenas, community centres) and types of parks. For playgrounds, the City has established a target of providing “...one playground generally within an 800 m radius of every residential area (without crossing a major arterial road or physical barrier).” (p. 72)

10The importance of parkland and playground space is addressed in the Master Plan where it indicates:

Playgrounds

Equity and geographic accessibility are vital to identifying playground needs, which are consistently identified among the most desirable local-level recreation amenities.

11Mr. Gosnell refers to the City’s Official Plan, which contains the following policies regarding parkland:

407 Through reinvestments in existing parks and facilities and in the planning and approval of new developments in the city, the primary principle to be achieved is the creation of a parks and recreation system that affords all Londoners, regardless of age, ability, culture, income or neighbourhood, the opportunity to participate and share in the benefits of the City's parks and recreational facilities.

408 In the development of the system, we will strive to develop facilities, amenities and programming that are flexible, serve multiple users and can be linked to broader community strategies and initiatives related to health, economy, development, mobility, education, sustainability, and growth management. Specifically, we will:

1. Develop beautiful, functional, iconic parks and public spaces that give London a sense of place and identity and provide exciting places for Londoners to come together.
2. Distribute parks of different types throughout the city ensuring that all neighbourhoods are well served with a variety of recreational and leisure opportunities.
3. Ensure parks and public facilities are accessible and attractive to Londoners of all ages, lifestyles, and abilities.
4. Plan for, and create, a continuously linked cycling network throughout the city.

409 To achieve our objectives, we will plan and provide for a full range and equitable distribution of publicly-accessible built and natural settings for recreation, including facilities, parkland, public spaces, open space areas, trails and linkages, and water-based resources, and provide opportunities for public access to shorelines, consistent with the Provincial Policy Statement.

410 All planning and development applications, plans, public works, and by-laws will conform with the following policies:

1. A Parks and Recreation Strategic Master Plan may be prepared and adopted as a guideline document to assess the current state of the parks and recreation system, identify gaps and needs, and plan for future investment that is strategic and in conformity with the policies of this Plan, and in accordance with the Planning Act.
2. Lands will be acquired for use as parkland primarily through the following methods: dedication, purchase, donation or bequest, and expropriation. Other open spaces that are privately-owned but accessible to the public, will be established through planning and development approval processes. Parkland dedication policies are provided in the Our Tools part of this Plan.
3. Priorities for parkland acquisition will be based on existing and proposed population densities within a park's service area, existing facilities and their accessibility to neighbourhood residents, support for the intensification goals of this Plan, the suitability of lands available for sale, and the potential to create a more continuous or linked park system.

12Mr. Gosnell further maintains that the City OP’s policies highlight the need and importance of parkland. The policies establish the Parks and Recreation Master Plan as the key document for assessing parkland requirements. As well, the policies set out how parkland will be acquired by the City.

13He also argues that the City Housing proposal will add 42 residential apartment units to the neighbourhood and will result in additional demands on municipal services including parkland in an area that is already deficient in parkland and supports the initiative to provide affordable housing in the community; however, the objective of providing affordable housing should be balanced with other community objectives including the provision of adequate parkland in the community.

14Mr. Gosnell maintains that the neighbourhood is at a tipping point and that the development at 345 Sylvan Street and the other major project underway at 633 Baseline Road, both qualify as intensification and contribute to the need for park land dedication. This is in an under-represented area and a deficiency exists and there should be consideration of on-site park dedication and avoid a less sprawling parking plan, which could incorporate underground parking creating space to include a park on site.

15He agrees with the City that there is a lack of affordable housing in the City but argues that that the City is addressing the issue reactively and suggests that the City should consider being proactive in approach to inclusivity and quality of life for all current and future residents.

16Mr. Gosnell proposes that as an alternative to the refusal of the applications, the by-law could be revised to include a portion of the site under a OS1 (Open Space) Zone.

17He disagrees with the City’s experts that Gartshore Park adequately services the neighbourhood because the walking distance is in excess of one kilometre away and that it is unsafe because sidewalks do not exist the entire way.

18He also suggests that the Tribunal consider carrying out a site visit.

City Evidence

Affidavit of Lief Maitland, sworn October 20, 2021

19In his Affidavit sworn October 20, 2021, Mr. Maitland explains that he is a Site Development Planner in the Planning Service Department of the City and is as such is responsible for Site Plan Review as well as Official Plan and Zoning By-law Amendments and in the past was responsible for City-initiated planning policy projects. He was the planner of record for the application under appeal and was responsible for the entirety of the application process.

20He explained that the proposal is for the development of a 42-unit, three-storey apartment building, 10 metres (“m”) in height, located in the City at 345 Sylvan Street. A staff report was prepared recommending approval, dated March 1, 2021. The development proposal has a proposed density of 75 units per hectare (“uph”), based on a 0.567 ha lot area. The units proposed are to be one-bedroom apartment units with a minimum 41 m² in floor area. The building location proposed is towards the rear of the lot with the two wings of the building extending along the north and west property limits. The proposal includes 22 vehicular parking spaces and long-term bicycle parking spaces in a structure and internal to the building.

21In order to proceed, the proposed development required both Official Plan and Zoning By-law Amendments.

22It is noted that the City currently has two official plans, the Official Plan, 1989 and The London Plan which was endorsed by Municipal Council in 2016. Portions of The London Plan remain under appeal including the designations and land use map which would apply to the subject property. The requested Official Plan Amendment is to The London Plan and would permit a low-rise apartment form without frontage on a Civic Boulevard (arterial road). Given the presence of this exact use and form in the neighbourhood and the proximity to major transportation infrastructure, this amendment was recommended by staff and adopted by Council.

23The requested zoning amendment is for Residential R8 Special Provision (R8-4(_)) Zone. This Residential R8 Zone would permit a variety of multi-family housing types, including a low-rise apartment as proposed, to a maximum density of 75 uph. The proposal relies on a number of special provisions. A lot frontage of 20 m (where 30 m would otherwise be required) is requested to account for the existing property frontage. A parking reduction for 22 vehicular parking spaces where 53 would otherwise be required (at a rate of 0.5 per unit rather than 1.25). A special provision to allow an accessory structure in the front yard (for bicycle parking) which would otherwise not be permitted subject to section 4.1.4 of the Zoning By-law. Finally, a minimum unit size of 41 m² for one-bedroom units is request whereas 47 m² would otherwise be required.

24Mr. Maitland opines that the reduced frontage and front yard accessory structure permission are appropriate as a function of the site location and layout on the end of the dead-end street.

25He explains that Policy 58 of The London Plan, 2016 outlines foundational strategies to become one of the greenest cities in Canada. The sub-policy noted in the appeal (Policy 58(10)) speaks to an expansion in the City’s parks is but one policy in a suite of strategies that speak to improved environmental outcomes through development by, as one example, increasing density through infill development so as to reduce the loss of, and impact on the environment.

26Mr. Maitland maintains that Policy 61 of The London Plan, 2016 outlines foundational strategies to build strong, healthy and attractive neighbourhoods for everyone and that the first sub-policy (61(1)) directs the City to “provide healthy housing options” as part of complete neighbourhoods. The second sub-policy (61(2)) offers greater impetus for the development in calling for “complete neighbourhoods by meeting the needs of people of all ages, incomes and abilities.” As such, providing housing at this location addressing a currently under-served portion of the community is in keeping with this policy of the Plan.

27Both Policies 58 and 61 are broad policies intended to achieve city-wide goals through comprehensive development and Mr. Maitland opines that providing infill housing which reduces the need for expansion and pressures on environmental and agricultural areas achieves these goals, and in so doing meets the intent of both policies.

28He further explains that Policy 410 of The London Plan, 2016 outlines how parklands are to be acquired and planned for, including policy to support the creation of a Parks and Recreation Master Plan to guide that work. Policy 410.1 provides for the creation of a master plan with the sub-policies following it outlining elements of such a plan. The City has adopted a Parks and Recreation Master Plan, 2019 in accordance with this policy.

29In the review of the development application, subsections (3), (6) and (13) are particularly relevant and in Mr. Maitland’s opinion, the development application conforms with subsections (3) and (6) because the development would not prevent the development of a more continuous park system, the development of a larger block style park, nor is it located such that it is highly accessible to the community. Similarly, subsection (13) notes the City standards in place for parks design (outlined broadly in Policy 422), which the site cannot meet at a basic level therefore precluding its use as a park.

30Policies 1756 and 1757 of The London Plan reflect the Planning Act permissible methods of acquiring parkland dedication, namely that parkland can be acquired through dedication of land or cash-in-lieu of parkland dedication. Each planning application to the City is reviewed to determine which approach is taken.

31In keeping with these policies, the City’s Parks Planning group is circulated on all applications including the one before the Tribunal. In this instance the decision made by the City’s Parks and Recreation group and communicated to Mr. Maitland through the internal review process, was to take cash-in-lieu of parkland.

32Policy 3.2.3.7 of the Official Plan, 1989 provides guidance on the necessary infrastructural elements that must be in place to support an application for residential intensification.

33First, the policy requires sufficient off-street parking and buffering which were demonstrated through the conceptual site plan. The parking reduction requested was supported by a parking study and a special provision was included to ensure bicycle parking could be properly accounted for.

34Second, the policy requires adequate community facilities including outdoor recreational space. The conceptual site plan provided by the Applicant demonstrated significant outdoor amenity associated with the development itself in a neighbourhood which has a community centres, schools and significant park access. It is worth noting that the Site Plan Control By-law contains the requirement for a single communal outdoor amenity space in association with apartment developments of the type under review. The concept provided however contains three distinct and separately programable spaces well in excess of requirements.

35Third, the policy requires that transit and traffic infrastructure is adequate to support development. The City’s Transportation Division was circulated with this application and did not provide any concerns. With regards to transit, Baseline Road which Sylvan Street connects to, is a bus route. Wellington Road which is approximately 400 m away is a major bus corridor currently slated for upgrade into a rapid transit route with a stop planned for Baseline and Wellington, which in Mr. Maitland’s opinion indicates a sufficient level of nearby transit to support the development.

36Fourth, the policy requires adequate municipal services to support development on the site. The adequacy of municipal services have been confirmed through the application process.

37Given the above, the application is able to meet all aspects of Policy 3.2.3.7 of the Official Plan, 1989, according to Mr. Maitland.

38Policy 3.7.2 of the Official Plan, 1989 provides guidance on the criteria that may be considered for zoning by-law amendment applications in residential areas and as such, the policy applies the application under review.

39The proposed development meets the requirements of Policy 3.7.2 by providing a use prevalent on neighbouring properties; accommodating all required elements on the site without need for zoning special provisions or variances; maintaining a height consistent with its neighbours; providing affordable housing in a time and location of identified need; and retaining mature trees along the perimeter of the site.

40Mr. Maitland opines that applications for Official Plan and Zoning By-law Amendments are not required to conform to the policies of the City of London 2019 Parks and Recreation Master Plan. This Master Plan is adopted under Policy 1712 of The London Plan as a guideline document, which provides additional guidance for a specific area and provides guidance for lands that are identified and designated for parks use. The Subject Lands are designated Low Rise Residential under the Official Plan, 1989 which would permit the proposed development. Neither of these land use designations include “Parks” as a permitted use and as such, the lands would not therefore be planned under the direct guidance of the Parks Plan.

41Mr. Maitland opines that given the instruments before the Tribunal are applications to permit a small-scale residential infill project (42 units), it is not appropriate to apply the policies of the Parks Plan directly, as they are intended specifically to guide and direct the planning and management of parks facilities across the City. The Parks Plan policies are not directly applicable to the analysis of the applications because the Subject Lands do not contain a park, nor does the Parks Plan contemplate that the Subject Lands should be “saved or acquired” to provide a park anytime in the future. The proposed development does not therefore conflict with the Parks Plan recommendations according to Mr. Maitland.

42Finally, Mr. Maitland maintains that that the applications conform to the policies of the Provincial Policy Statement (“PPS”) (2020) specifically Policies 1.1.1(b), 1.1.3.2(b), and 1.4.3(b), which provide strong support for infill development including affordable housing options in a variety of forms and therefore demonstrate that the applications are consistent with the PPS 2020.

43Accordingly, Mr. Maitland opines that the applications for Official Plan Amendment and re-zoning by City Council conform to the policies of The London Plan, 2016, the Official Plan, 1989 and are consistent with the PPS 2020.

Affidavit of Craig Smith sworn October 20, 2021

44Mr. Smith is a Senior Planner in the Parks Planning and Design Department and explained that the Planning Act, in s. 42(1) and (3) permits municipalities to take 5% of the total area or 1 ha per 300 residential units and that this property is approximately 0.5 ha in size. This means that the municipality could take 250 m² or 0.025 ha and that the amount, which could be taken as parkland in this case is not sufficient in size for the purpose of a public park.

45Subsections 42(4) and (4.1) further provides that that in order to obtain cash-in-lieu of parkland dedication, the municipality must prepare and make publicly available a park plan that examines the need for parkland in the municipality. This was done according to Mr. Smith with the City’s adoption of the Parks and Recreation Master Plan referred to above in June 2019.

46The City’s Parkland Dedication and Levy By-law No. CP-9 sets out the required amount of payment in lieu of parkland dedication, which in this case (42 units) would require a payment of $800 per unit for a total of $33,600.

47Section 1.5.1(b) of the PPS 2020 requires that municipality plan and provide for a full range and equitable distribution of publicly accessible built and natural settings for recreation, including facilities, parklands, public spaces, open space areas, trails and linkages, and, where practical, water-based resources and Mr. Smith opines that taking cash in lieu of parkland dedication in this case is consistent with the PPS requirement as it provides the funding for equitable distribution of parkland and improvements to existing park facilities.

48Mr. Smith opines that the proposed development conforms with in-force policies of The London Plan, specifically 407-410 and 1759. He maintains that Policies 407-409 specifically describe the obligations of the City with respect to a City-wide parks strategy and that these have been met with the adoption of the Parks Plan referred to above.

49Section 410.2 states that parkland shall be acquired through dedication, purchase, donation or bequest and expropriation. As per the Planning Act only 5% of the lands can be taken as parkland dedication. Five percent of the proposed land is not sufficient in size to provide a useable park. Gartshore Park at 197 Wellington Street is within 800 m of this site and can serve the needs of the community.

50Section 410.3 lists the priorities for parkland acquisition for lands available for sale that creates a more continuous and linked park system. The Parks Plan outlines that park space that provides parks with playground equipment should be available to everyone within 800 m radius. Gartshore Park (197 Wellington Road) is located within 800 m of this site. Gartshore Park does not currently have playground equipment. It is Mr. Smith’s opinion that the enhancement of Gartshore Park is the preferable option to provide park and playground recreation to this community. Mr. Smith notes that improvements to parks are not before the Tribunal on these appeals and that therefore, the proposed development conforms with the Official Plan policies.

51He also maintains that requiring cash in lieu of parkland dedication is consistent with Policy 1759 as the 5% dedication does not provide a suitable shape, size or location for development as a public parkland, may negatively impact the balance of the lands for suitable development and Gartshore Park can adequately serve the community.

52Mr. Smith opines that the development is consistent with the 2019 Parks and Recreation Master Plan in that the community is served by existing park space (Gartshore Park). The enhancement to the existing park space is preferable to provide for opportunities for connection with people and their neighbourhood.

ANALYSIS AND FINDINGS

53The Tribunal has carefully considered the evidence as well as the submissions of counsel and the Appellant and finds that the appeal should be dismissed for the reasons that follow.

54The affidavit evidence of Messrs. Maitland and Smith, who are both professionals in their field, was uncontroverted and their evidence and conclusions are accepted by the Tribunal.

55While the Appellant presents as a genuinely concerned citizen of the municipality, he has simply not adduced any evidence upon which the Tribunal could rely to allow the appeal.

56The Tribunal finds, based on the evidence before it, that the proposed Official Plan Amendment and enactment of the Zoning By-law Amendment are consistent with the PPS 2020, and conforms with in-force Official Plan policies. Furthermore, the parkland requirement was calculated and will be administered in accordance with the City’s Parkland Dedication and Levy By-law No. CP-9, a matter which is not before the Tribunal in this proceeding.

57The Tribunal also finds that the proposal is an appropriate form of intensification in a low-rise residential neighbourhood and no specific issues with respect to the density, height, building design, or zoning deficiencies have been identified by the Appellant.

58The Appellant’s claim that there exists a deficiency in parkland, is not a determinative factor for approval of the applications. Mr. Gosnell’s attempt to apply the policies of the Parks Plan that are intended to guide and direct the planning and management of parks facilities across the City to a small-scale residential infill project (42 units) is not appropriate. The evidence is clear that the Parks Plan policies are not directly applicable to this case as the Subject Lands do not contain a park, nor does the Parks Plan contemplate that the Subject Lands should be “saved” to provide a park. “Parks Planning” on a City-wide basis in accordance with the Parks Plan is a very different exercise than designing and siting an outdoor amenity space in response to a development application, for the purpose of serving the immediate residents. The Tribunal finds that carrying out a site visit as suggested by the Appellant would not assist it in the rendering of its decision.

59The Tribunal accepts the uncontroverted evidence of Messrs. Maitland and Smith finds that the proposed development is consistent with the PPS and conforms to the in-force policies of both The London Plan, 2016 and the Official Plan, 1989. The appeals should therefore be dismissed.

ORDER

60THE TRIBUNAL ORDERS that the appeal pursuant to s. 17(24) of the Planning Act is dismissed and Official Plan Amendment No. 33 to the The London Plan for the City of London is hereby approved.

61THE TRIBUNAL ORDERS that the appeal pursuant to s. 34(19) of the Planning Act against By-law No. Z.1-212914 of the City of London is dismissed.

“R.G.M. Makuch”

R.G.M. makuch VICE-CHAIR

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