1602850 Ontario Ltd. v. Town of Innisfil, 2021 CanLII 134925

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 31, 2021

CASE NO(S).: PL160069

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

Appellant: 1602850 Ontario Ltd.

Subject: By-law No. 128-15

Municipality: Town of Innisfil

OLT Case No.: PL160069

OLT File No.: PL160069

OLT Case Name: 1602850 Ontario Ltd. v. Innisfil (Town)

Heard: December 13-15, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

1602850 Ontario Ltd.

Daniel Artenosi

Michael Cara

Town of Innisfil

Chris Barnett

Sam Zucker (student-at-law)

DECISION DELIVERED BY T. PREVEDEL AND M. RUSSO AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an Appeal by 1602850 Ontario Ltd. (the “Appellant”) on December 18, 2015, with respect to the Town of Innisfil’s (“Town”) refusal of the portion of the Zoning By-Law Amendment (“ZBLA”) No. 128-15 related to the proposed relocation of the Convenience Commercial Block from its currently designated location across from the central Champions Park (at the southwest corner of Angus Street and Cole Street) to a proposed location further south with frontage on 6th Line as shown on Figure 1, page 3 of the Decision.

Background

2The subject lands are located in the Town, north of the 6th Line and east of the Metrolinx Rail Line within the settlement boundary area of Alcona, which has been identified as a “primary settlement area” in the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).

3The subject lands are referred to as the “Sleeping Lion” subdivision, consisting of four phases of residential development surrounding a central, neighbourhood park (“Champions Park”) with an adjacent Convenience Commercial Block. The total area of the subdivision is approximately 92 hectares and the initial Draft Plan of Subdivision consisted of approximately 1,758 units of housing for an estimated population of 4,500 residents and 350-500 jobs.

4A portion of the Sleeping Lion subdivision is located within the radius of the Orbit transit-oriented community (“TOC”). The Orbit TOC is envisioned as the future urban hub for the Town. A GO Train station is planned to be built by 2023, and this is a key location for future growth out to 2051, being proposed as part of the County Municipal Comprehensive Review (“MCR”) process.

5Champions Park, which is approximately 3.5 hectares in area, is located at the heart of the Sleeping Lion subdivision and is an important feature of the neighborhood, anticipated to attract residents from across the Town. This park is planned to be Innisfil's first fully accessible and inclusive park.

6Figure 1 below, highlights the proposed relocation of the Convenience Commercial Block, which is the subject of this Hearing:

The Hearing

7The Hearing of the Appeal took place over the course of three days.

8The Panel heard from four (4) witnesses, on behalf the Parties. All witnesses were qualified to provide expert evidence in their respective fields.

Appellant’s Witnesses

• Douglas R. Annand – land economist and real estate market expert
• Michael Bissett – land use planning

Town’s Witnesses

• James P. Tate – land economist and retail market demand expert
• Tim Cane – land use planning

The Issue

9The only contested issue at the Hearing was the Appellant’s proposed re-location of the Convenience Commercial Block from its currently approved location to the existing Sales Pavilion some 125 metres further south as shown on Figure 1 above. The Appellant’s proposed site will be referred to as the Applicant Site in the body of this Decision.

The Approved Site

10The Approved Site, which is currently zoned for Convenience Commercial, is located at the southwest corner of Angus Street and Cole Street, within the Sleeping Lion Subdivision. The Approved Site is 0.4 hectares in size and is registered as Block 998 on the subdivision plan.

11The first two phases of the subdivision have now been constructed and occupied, including the lands east of Angus Street, and homes on the west side of Angus Street north of the proposed park location. The model homes have been constructed on the west side of Angus Street from the Approved Site, southerly to the Sales Pavilion. The Approved Site is graded to accommodate residential development and there are no utilities that would constrain or present any inappropriate condition for residential lots. The Tribunal was advised that service connections for potential residential lots were pre-installed in order to avoid future disruption to the area.

12The Approved Site is currently vacant with a sidewalk constructed along its easterly Boundary, and has the potential to include eight single detached residential lots as depicted on the marketing plan, which was entered as Tab 3M of the Joint Document Book during the Hearing. The Tribunal notes that the marketing plan depicts a future vision and has no official status.

The Applicant Site

13The Applicant Site is located at the northwest corner of Angus Street and 6th Line within the same block as the Approved Site (about 125 metres south). The Applicant Site is 0.36 hectares in size and is currently shown as Lots 356 to 359 and 379 to 382 on the plan of subdivision.

14The Applicant Site contains an existing building that was constructed in 2015, with permissions from the Town as a temporary Sales Pavilion for the subdivision. The building is one storey in height, with 1,000 square metres of gross floor area, surrounded by 36 parking spaces and loading areas at the rear (north). The existing building is constructed with the entrance and windows facing towards Angus Street and 6th Line, in an appropriate orientation and location to be accessible from the adjacent public sidewalks and multi-use trail.

Land Economics

15The Tribunal heard from both Messrs. Annand and Tate, who provided a thorough review from their different perspectives regarding the viability of the convenience commercial site either in the existing zoned location or the proposed location.

Evidence of Douglas Annand

16Mr. Annand made reference to his letter report dated July 16, 2014, in which he provided his professional opinion that the most appropriate location for a viable convenience commercial centre to serve the Sleeping Lion community is the Applicant Site at the northwest corner of Angus Street and 6th Line.

17He took the Tribunal to his subsequent report dated April 10, 2018, in which he undertook a more comprehensive analysis to assess the overall future need for convenience commercial facilities within the Sleeping Lion community. He described his methodology based on a detailed commercial space per capita analysis. Based on an estimated ultimate population of 4,500 residents in the community, he concluded that the commercial needs would be approximately 30,600 square feet, which included internally generated needs plus a 13% allowance for inflow or externally generated needs via pass-by traffic.

18Mr. Annand further opined that, based on the above detailed assessment, the smaller 10,000 square foot convenience centre should still be located on the Applicant Site, with direct access to 6th Line. The balance of the commercial space could be located further west in conjunction with the “Orbit” transit-oriented development vision (“Orbit Vision”) and the commercial block allocated at the southwest corner of the Sleeping Lion community.

19Mr. Annand advised the Tribunal that, in his opinion, an internal site for a convenience centre as currently zoned would have difficulty attracting tenants. The proposed location along 6th Line would provide a locational advantage for prospective tenants, with better access and visibility, thus supporting the future success of the plaza.

20He advised the Tribunal that his concern for the viability of the convenience centre is further reinforced by the recently approved Minister’s Zoning Order (“MZO”) on the lands surrounding a future GO Station in support of the Orbit Vision of the Town. These lands are immediately west of the Sleeping Lion community and will introduce new commercial spaces, which will create competition and put smaller convenience commercial centres at a disadvantage.

Evidence of James Tate

21Mr. Tate is very familiar with the Town’s market and was retained by the Town on October 6, 2021, to assess the viability of the currently zoned convenience commercial centre.

22In his written and oral testimony, Mr. Tate provided a thorough analysis of what he considered to be ten (10) comparable sites elsewhere in the Greater Toronto Area. He undertook this review in order to assess the viability of centres with locational attributes similar to the Approved Site. The sites ranged from 4,000 square feet to 31,100 square feet serving a population of 1,300 people to 4,600 people within a 500- metre radius.

23Mr. Tate concluded that, based on his analysis of these comparables, the Approved Site is viable from a market perspective. All but one of the sites was located adjacent to a Park block.

24He also noted that the Approved Site location is more central to the community and thus, would service a larger population within the 500-metre walking radius.

25Mr. Tate, under cross-examination, did admit that his evidence was based solely on examining the viability of the Approved Site and not on comparing the relative merits of both sites.

26Mr. Tate also recognized that the Applicant’s Site provided more exposure to vehicular traffic and would likely be a preferred location for a majority of prospective commercial tenants.

Planning Context

27The Tribunal heard from both Messrs. Bissett and Cane, who provided a thorough review from their different perspectives with respect to the proposed ZBLA and its consistency to provincial policy, and the County and Town planning framework applicable at the time of the application.

28From the evidence provided to the Tribunal from the planning witnesses over the course of the three-day Hearing, it became quite evident that the experts were generally aligned in their opinion that both sites have regard for matters of provincial interest as defined by the Planning Act, are consistent with the policy direction established by the Provincial Policy Statement and conform to the relative directives established by the Growth Plan.

29Moreover, it was agreed by both Messrs. Bissett and Cane that Amendment No. 8 to the Town’s Official Plan (“OPA 8”) was the operative planning instrument for the proposed ZBLA, and that both sites satisfied the policy directives established by same.

30Both experts also agreed that both sites were in conformity with the County of Simcoe Official Plan (“County OP”) and the new Town’s Official Plan (“Our Place”).

31The issue before the Tribunal was distilled to a difference of opinion between the two experts as to where the “best” location for a convenience commercial centre should be; at the Town’s Approved Site or the Appellant’s proposed site.

Evidence of Michael Bissett

32Mr. Bissett has been involved with the Sleeping Lion subdivision since 2009, to assist with a number of planning applications to permit the development of the Subject Site.

33Mr. Bissett provided the Tribunal with a chronological history of the planning applications. In particular, he provided evidence that the two sites being considered for this Hearing were designated in 2013 for both Convenience Commercial and residential uses under OPA 8. In OPA 8, both sites had a Convenience Commercial designation overlay, which would permit the Convenience Commercial Block in either location through a rezoning process.

34Mr. Bissett further stated that the Appellant did not initially appeal the proposed location of the Convenience Commercial Block, as that would have resulted in a lengthy delay to the development approval process for the entire subdivision.

35Mr. Bissett told the Tribunal that the Town was fully aware of the Appellant’s intent to locate the Convenience Commercial Block at the northwest corner of 6th line and Angus Street, where the Sales Pavilion was being proposed at the time. He opined that the Appeal regarding the location of the block was anticipated to be resolved in the fullness of time.

36He took the Tribunal to the Conditions of Draft Plan Approval, in particular Condition 9, which made specific reference to the fact that an Appeal was underway.

37Mr. Bissett opined that both the Approved Site and the Applicant Site are walkable and accessible, and he further opined that the proposal to relocate the Convenience Commercial Block to the proposed site conforms to OPA 8 and is thereby consistent with and conforms to the applicable Provincial, County and Town planning framework applicable at the time of the application.

38He further opined that the application has appropriate regard to the relevant matters of provincial interest as set out in s. 2 of the Planning Act and that the proposed location of the commercial block on 6th Line conforms to the Growth Plan.

39It was the opinion of Mr. Bissett that the Champions Park and policies in support of the Champions Park will contribute to the success and Place Making sought by the Town. The retail proposed is complimentary to that ultimate end goal and not imperative in achieving it.

40On a practical note, Mr. Bissett pointed out several key factors for the Tribunal’s consideration in reviewing the proposed relocation:

• The existing Sales Pavilion was graded and serviced with municipal infrastructure intended to service a single block, not individual residential lots as per the underlying planning approvals. Moreover, the electrical switchgear, which is significant in size, was re-located from the east side of Angus Street to the west side and moved onto the Sales Pavilion Block so as not to be on the road right-of-way. All of this was undertaken with the full knowledge of Town staff.
• Mr. Bissett further stated that, at the time of servicing Phases 1 to 3 of the subdivision, individual service connections were constructed for the eight residential lots that could potentially be developed on the Approved Site, again with the full knowledge of Town staff.
• He opined that the existing Sales Pavilion has been constructed in accordance with the Town’s urban design standards, and would be suitable to be re-purposed to a Convenience Commercial Centre. To consider a demolition of this existing structure, and then to reconstruct a similar structure some 125 metres further north would be a waste of financial resources and cause a significant disturbance in the immediate area.

Evidence of Tim Cane

41In his written and oral evidence, Mr. Cane was quite clear in his opinion that the Approved Site for the Convenience Commercial Block was a better location.

42He opined that Champions Park, located at the heart of the Sleeping Lion subdivision, is an important feature of the neighborhood and is anticipated to attract residents from across the Town. Champions Park is going to be the Town’s first fully accessible and inclusive park. To date, the Town has allocated approximately $1.6 million for its design and construction.

43Mr. Cane, throughout his evidence made constant reference to Place Making as it is identified in the Town's current OP (“Our Place”).

44Although he admitted that the location of the Convenience Commercial Block next to the park is not determinative for the park’s success, he held a strong belief that the location of the Commercial Block enhances its place making role and neighborhood benefit over generations by making it easier to access by active transportation and clustering people and activities.

45Mr. Cane also made reference to the fact that the Appellant, having knowledge of the Town’s Approved Site, was aware that any works undertaken on the Sales Pavilion site and construction of infrastructure servicing was at the Appellant’s risk.

Analysis and Disposition

46From a policy context, the issues before the Tribunal require the general determinations of whether the proposed ZBLA has sufficient regard to the provincial interests listed in s. 2 of the Planning Act, is consistent with the Provincial Policy Statement 2020, conforms to the Growth Plan for the Greater Golden Horseshoe, conforms to the Town’s OPA No. 8 and to the Town’s new OP, conforms to the County of Simcoe OP, and in general represents good planning and is in the public interest.

47Based on the experts’ testimony, provided to the Tribunal over the course of this three-day Hearing, both with respect to land use planning and with respect to land economics and real estate market demand, it became evident that both the Approved Site and the Applicant Site meet all of the planning objectives and are also considered viable from a real estate market perspective.

48The evidence provided by both land use planners seems to converge and support that both the Approved and the Applicant Sites are consistent with and conform to applicable land use policies. What then becomes vital is ensuring the viability and economic success of future occupants and merchants of the retail/commercial lands. This Tribunal finds that in the absence of explicit land use policy or direction either encouraging or discouraging either approved or proposed sites, it is the economic success of the tenants that becomes paramount. The Tribunal is persuaded by the opinions of Mr. Annand that greater visibility, access and competitive advantage is provided by the Applicant Site.

49What is left to determine is whether the proposal to relocate the Convenience Commercial Block from the Approved Site to the Applicant Site represents good planning and is in the public interest.

50The Tribunal finds that the place making objective, as advocated by Mr. Cane, properly refers to Champions Park and does not necessarily relate to the location of a proposed Convenience Commercial Block.

51The Town focus on Champions Park provides direction and emphasis on walkability and connectivity that both contribute to Place Making. This is what is embedded in policy, both in the operative OPA 8 and in the current “Our Place” OP. The Town had the opportunity to instill or even encourage more operative language involving retail/commercial and the necessity to have it abut the Park’s boundaries within the new OP, which it failed to do.

52Place Making is a concept and an objective that the Town is encouraging and seeking to instill in Champions Park and the Town overall. However, in this Appeal it is not determinative.

53The Tribunal prefers the evidence proffered by Mr. Bissett in terms of the practical realities of re-purposing an existing structure, which is already in place and meets urban design guidelines rather than the demolition of this structure and reconstruction of a similar structure only 125 metres further north. Although the Tribunal realises that the work undertaken by the Appellant to date was at the risk of the Appellant, nevertheless, the Tribunal finds that the proposed relocation represents good planning and is in the public interest.

54The Tribunal does accept the opinion of Mr. Cane, that Place Making is a goal and an objective that the Town is actively seeking to ensure and augment. However, the Tribunal prefers and is more so persuaded by the opinion provided by Mr. Bissett, that Place Making will actually suffer, and desirability will diminish, if the economic success of the retail/commercial tenants is not ensured or, at the very least, given the best likelihood to succeed. Mr. Bissett, relying on the evidence of Mr. Annand, opined that increased vacancy or less desirable tenants will actually counteract the end goal of Place Making sought by the Town.

55The Tribunal, in its analysis between the Approved Site and the Applicant Site, finds that competition and visibility are substantive in assessing economic viability and predicting success of future tenants. The evidence provided by the witnesses lends itself to the conclusion that walkability, connectivity and the overall impacts of the retail/commercial felt by the immediate neighbourhood will be relatively similar at either the Approved or Applicant Site.

56The Tribunal has been persuaded by the evidence of Messrs. Annand and Bisset that what differs is the competitive advantage, visibility and overall economic viability that is greater with the Applicant Site than the Approved Site. Practically, such competitive strength, visibility and overall economic viability, in the context of the planning policies, also represents good planning in the public interest.

57Based on the evidence presented at the Hearing, the Tribunal finds that the proposed ZBLA has sufficient regard to the provincial interests listed in s. 2 of the Planning Act, is consistent with the Provincial Policy Statement 2020, conforms to the Growth Plan for the Greater Golden Horseshoe, conforms to the Town’s OPA No. 8 and to the Town’s new OP, conforms to the County of Simcoe OP, and in general represents good planning and is in the public interest.

ORDER

58The Tribunal Orders that the Appeal is allowed and Zoning By-Law No. 080-13 is hereby amended, as set out in Attachment 1 to this Order.

59The Tribunal authorizes the Municipal Clerk to assign a number to this By-Law for record keeping purposes.

“T. Prevedel”

T. PREVEDEL

MEMBER

“M. Russo”

M. RUSSO

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.