Empress Capital Group Inc. v. Oakville (Town), 2021 CanLII 54191

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 16, 2021

CASE NO(S).: PL200331

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

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

Applicant and Appellant: Empress Capital Group Inc.

Subject: Request to amend the Official Plan - Refusal of request by Town of Oakville

Existing Designation: Livable Official Plan

Proposed Designated: Site Specific Special exception

Purpose: To permit a 9 storey hotel

Property Address/Description: 170 North Service Road West

Municipality: Town of Oakville

Approval Authority File No.: OPA 1517.18

LPAT Case No.: PL200331

LPAT File No.: PL200331

LPAT Case Name: Empress Capital Group Inc. v. Oakville (Town)

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

Applicant and Appellant: Empress Capital Group Inc.

Subject: Application to amend Zoning By-law No. 2020-014 - Refusal of Application by Town of Oakville

Existing Zoning: Core Commercial (C-3)

Proposed Zoning: Core Commercial (C3-xx) Exception Zone

Purpose: To permit a 9 storey hotel

Property Address/Description: 170 North Service Road West

Municipality: Town of Oakville

Municipality File No.: Z.1517.18

LPAT Case No.: PL200331

LPAT File No.: PL200332

Heard: June 9, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Empress Capital Group Inc.(“Applicant”)

D. Bronskill

Town of Oakville (“Town”)

R. Kehar

Regional Municipality of Halton (“Region”)

K. Yerxa

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON JUNE 9, 2021 AND ORDER OF THE TRIBUNAL

1The Tribunal convened a settlement hearing regarding a development application for a 7 storey 114 suite hotel to be located on property known municipally as 170 North Service Road West (“subject lands”) in the Town. The Town Council refused the application and Empress Capital Group (“Applicant”) appealed an Official Plan Amendment pursuant to section 22 (7) and a Zoning By-law Amendment pursuant to s. 34 (11) of the Planning Act.

2Counsel for the Applicant David Bronskill advised the Tribunal that the Applicant has reached a full settlement (“proposed settlement”) with the Town. The Tribunal received a fully executed Minutes of Settlement (“MOS”) between the Applicant and the Town (save and except Schedule D which are confidential terms and conditions). The MOS is marked as Exhibit 3.

3The Tribunal has two instruments for consideration at this hearing:

1. Official Plan Amendment 30 as implemented by By-law No. 2020–072 (“OPA”) is marked as Exhibit 4. The OPA would permit a hotel use on the subject lands; and

2. Zoning By-law Amendment No. 2020-073 to amend By-law No. 2014-014 (“ZBA”) is marked as Exhibit 5. The ZBA permits a hotel of approximately 5,200 sq. m in size with a Floor Space Index of 0.76. It contains site specific zone provisions that include maximum height – 24 m; minimum lot area – 0.67 hectares; maximum number of storeys – 7 and minimum number of parking spaces for a hotel – 0.8 per lodging unit. A Holding H Symbol is incorporated to define required servicing conditions from the Region under section 36 of the Planning Act.

4Testimony is heard from one planning witnesses Bruce Hall. He is qualified to give expert land use planning evidence in this matter and has considerable planning experience within the subject area and the Town. Mr. Hall’s Affidavit is marked as Exhibit 1 and Applicant’s Visual Evidence is Exhibit 2.

BACKGROUND, SUBJECT LANDS AND AREA ANALYSIS

5The subject lands are located on the south side of North Service Road West adjacent to the Queen Elizabeth Way (“QEW”) Kerr Street exit off-ramp between Sixteen Mile Creek and Dorval Drive. It is a vacant parcel and is immediately adjacent to the ‘Dorval Crossing’ Shopping Centre. Dorval Crossing is a significant commercial area within the Town which contains more than 50 stores that include both large and smaller format stores and several service oriented establishments.

6The subject lands are triangular with a total area of approximately 6,800 square metres (“sq. m”) and has frontage of approximately 104 metres (“m”) on North Service Road West. It is the last undeveloped parcel in the area and surrounded by existing development. Mr. Hall believes that it is a remnant parcel remaining from the construction of the off-ramp and the subject lands represent a most suitable site for a hotel because of its lack of visibility combined with the Ministry of Transportation (“MTO”) setbacks.

7Surrounding land uses are: North – is a vegetated area associated with Sixteen Mile Creek; East and Southeast – the QEW westbound off-ramp and single storey commercial uses; South and Southwest – service access for existing retail uses; and West – a number of large format retail uses.

8An application for OPA and ZBA was filed with the Town on March 29, 2018. A September 10, 2018 Town staff report recommended approval of the applications as modified because they were in keeping with relevant Provincial, Regional and Municipal Planning policies. Council deferred a decision so the Applicant could pursue shared parking and access arrangements with the property owner immediately west of the subject lands. Town staff continued to recommend approval in a supplementary staff report presented to Town Council on July 6, 2020.

9Town Council refused the Applications at its meeting of July 6, 2020. The main reason for a refusal were issues related to the proposed right in right out access to the site which could result in potential traffic hazards and unsafe conditions. The Applicant was not able to secure a second access across the adjacent property enabling hotel visitors to gain access to a signalized intersection. This is a key issue in this matter for the Town.

PROPOSED SETTLEMENT

10Mr. Hall advised the Tribunal that there is little change to the OPA and ZBA that was presented to Town Council in July 2020 as a result of the proposed settlement, changes are depicted on the Site Plan and the MOS establishes a process to achieve a second access. The Site Plan is revised to show a reservation for a potential full movement access driveway through a mutual access with the adjacent property. This driveway is shown in the north east corner of the subject lands and no parking is allowed in that area. The driveway is of an appropriate width. Mr. Hall is of the opinion that the Town has appropriately protected the potential driveway through the Site Plan and is a major consideration of the MOS.

11Counsel for the Town, Mr. Kehar, confirmed that the Town is satisfied with how the full movement access is shown on the Site Plan and with the terms contained in the MOS.

PLANNING POLICY

12Mr. Hall in his affidavit and testimony advised the Tribunal that he routinely takes a very comprehensive view and review of all relevant planning policy, economic development, and urban design objectives. After doing so for this application, he prepared a comprehensive Planning and Urban Design rationale both in support of the application and in the preparation of his Affidavit. The OPA and ZBA applications are supported by a multi-disciplinary project team.

Provincial Policy

13The planner reviewed s. 2 – Provincial Interest in the Planning Act and noted the many matters that speak specifically to the proposed settlement. He opined that the proposed settlement gives proper consideration to all matters related to s. 2 of the Planning Act.

14Mr. Hall outlined the Provincial Policy Statement, 2020 (“PPS”) which articulates the provincial led planning policy regime. The PPS encourages the wise management of land in order to achieve efficient land use patterns by directing growth to settlement areas and promoting a compact form of development. Provisions of the PPS summarized in testimony are:

1. promoting efficient development and land use patterns;

2. the integration of land use planning, growth management, transit supportive development;

3. the efficient use of land and infrastructure;

4. support active transportation and be transit supportive;

5. identify appropriate areas for intensification with appropriate development standards;

6. directing development to locations that have an appropriate level of infrastructure and public service facilities;

7. promote economic development and competitiveness; and

8. establishing development standards which facilitating compact urban form.

15In Mr. Hall’s opinion the proposed OPA and ZBA are consistent with the 2020 PPS.

16The Planner gave evidence with respect to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) as amended. The Growth Plan establishes a comprehensive growth management strategy for municipalities in the Greater Golden Horseshoe. Relevant policy considerations included:

1. the subject lands are within a Regional Primary Settlement Area within the Town’s Built Boundary;

2. intensification to make efficient use of land and infrastructure is promoted;

3. assists in the development of a complete community with a diverse mix of land uses;

4. provides for a complete community promoting a compact built form that is integrated in the community and with adjacent land uses;

5. helps ensure economic development and competitiveness of the Greater Golden Horseshoe;

6. integrating and aligning land use planning and economic development goals and strategies; and

7. Makes efficient use of available infrastructure to accommodate growth.

17Mr. Hall opined that the OPA and ZBA conform to the policies of the 2019 Growth Plan.

18The subject lands are located approximately 150 m from the QEW a provincial highway and the application is therefore required to meet all the requirements of the MTO Building and Land Use Policy (2009). Mr. Hall stated that the proposed site plan accommodates the required minimum 14 m setback from the off ramp and the organization of facilities on the subject lands ensure the setback is fully respected.

Municipal Policy

19Mr. Hall testified that the Region of Halton Official Plan (“HROP”) speaks to resident aspirations and the desire to maintain the character of the landscape and the existing quality of life. The subject lands are designated “Urban Area” and is within the Built Boundary. Urban Areas support compact, transit supportive development in an effort to create complete communities; a sustainable and prosperous economy; management of the Region’s future population and employment growth; promotes intensification opportunities; sustains the Region’s economic prosperity; promotes tourism and the hospitality industry; and has many transit supportive and active transportation policies.

20The Planner noted that the proposed hotel will contribute to a healthy and sustainable community by introducing a new complementary use in a location with well defined local and regional transportation connections.

21Mr. Hall is of the opinion that the proposed settlement conforms to the HROP and supports policies related to growth management, intensification, complete communities and transit-supportive design.

22The planner advised the Tribunal that the subject lands are designated as Major Commercial Areas on Schedule A1 and “Core Commercial on Schedule H of the Town of Oakville Official Plan – Livable Oakville (“OOP”). Commercial designations in the Town are hierarchically organized but have the primary goal of ensuring the Town residents have available an adequate range of goods and services to meet their needs. The Core Commercial designation is to provide major concentrations of commercial facilities that serve the broader regional community and are located at the intersection of major arterial roads with proximity to highway access.

23Mr. Hall made note of a series of objectives in the OOP that relate to the hotel permission and the proposed settlement including:

a. provide a broad range of goods and services within Major Commercial areas. A hotel is an important service use and will diversify and bring a broader range of services in this Commercial area;

b. supports the Town’s Urban Structure and is consistent with the guiding principles established by the Town;

c. is compatible to existing surrounding land uses;

d. intensification and redevelopment of existing commercial centres is intended to be the primary means of providing additional retail to accommodate a growing Town;

e. managing growth in a way that optimizes existing infrastructure;

f. commercial land use designations are intended to have a broad range of uses to meet future growth related needs in the Town; and

g. the importance of urban design as an integral part of site planning to incorporate public and open spaces in developments.

24Mr. Hall opined that the OPA and ZBA conforms to the OOP – Livable Oakville and will allow for the appropriate and desirable development of the subject lands.

25The site is in the Core Commercial (C3) zone in the Town’s Zoning By-law No. 2014-014 (“By-law 2014-014”). Mr. Hall advised the Tribunal that the C3 zone has a wide range of uses and most permitted uses are commercial and retail, offices, community facilities, recreational or motor vehicular sales and service and open space. A hotel is not a permitted use.

26The planner testified that a hotel use is compatible with the other uses in a C3 Zone as it will serve the surrounding commercial uses and nearby employment areas located south of the QEW. He illustrated many examples of locations in the Town where hotels have located in and serve similar commercial and employment areas. This is an ideal location and the subject lands, because of its size shape and configuration, is particularly well suited for a hotel use.

27Mr. Hall stated that the proposed hotel would not undermine but enhance the amenity and viability of the commercial area.

28As well as allowing a hotel as a permitted use, the ZBA does establish site specific zone provisions relating to:

1. minimum lot area of 0.68 hectares;

2. maximum height of 7 storeys and 24 m;

3. maximum projection above the roofline for parapets of 2.9 m;

4. minimum width of landscaping abutting a public road; and

5. minimum number of parking spaces for a hotel.

29Counsel for the Region, Ms. Yerxa, drew the Tribunal’s attention s. 3 of the ZBA which amends the Holding Provisions found in Part 16 of By-law 2014-014. This provision is of interest to the Region. The H symbol may be removed once the landowner has met the following condition:

1. that a local watermain and sanitary sewer are extended within Kerr Street/North Service Road adjacent to this site and/or there are provisions in place satisfactory to Halton Region in regard to the extension of these services.

30Mr. Hall is of the opinion that the ZBA is consistent with the Town’s zoning approach in the general area; conforms to the OOP; meets the intent of By-law No. 2014-014 and will ensure the appropriate and desirable development of the subject property.

31In conclusion Mr. Hall is of the opinion that the proposed settlement as implemented by the OPA and ZBA has appropriate regard for Provincial Interests found in s. 2 of the Planning Act; are consistent with the PPS, conform to both the HOP and the OOP – Livable Oakville; properly implement the intent of the Core Commercial (C3) Zone and provides appropriate standards for development. The OPA and ZBA represent good planning.

TRIBUNAL FINDINGS

32The Tribunal accepts the uncontested evidence of Mr. Hall in its entirety and finds the OPA and ZBA (as put forward in the proposed settlement) meet all the relevant policy tests of the s. 2 of the Planning Act, the PPS, the Growth Plan and all relevant foundational policies of the HROP, the OOP – Livable Oakville and meets the intent of By-law No. 2014-014. They represent good planning and are in the public interest.

33The Tribunal finds that the Town has extremely well established planning policy for the subject lands and surrounding area and has followed a careful, complete and comprehensive planning review of the proposed settlement and both the OPA and ZBA.

34The Tribunal finds that the OPA and ZBA align with the established principles of relevant Provincial policy, the HROP, OOP – Livable Oakville as follows:

1. the subject lands are within a regional Primary Settlement Area the Town’s Built Boundary;

2. assists in the development of a complete community with a diverse mix of land uses that is in a compact built for integrated into the surrounding community;

3. contributes to the economic development and competitiveness of the Town and Region;

4. integrates and aligns land use planning with the Towns Economic Development goals;

5. makes efficient use of available infrastructure to accommodate growth;

6. adds to the broad range of goods and services within the Dorval Crossing commercial area by providing an important service use that will diversify and bring a broader range of services to the area. It is compatible to the existing land uses surrounding the subject lands;

7. serves to support the Town’s Urban Structure and is consistent with the guiding principles established by the Town;

8. intensifies an existing vacant property in a way that supports the existing Dorval Crossing commercial facilities and will provide an additional service to accommodate a growing Town; and

9. recognizes and the importance of urban design being an integral part of the Applicant’s site planning process.

35The Tribunal finds that the proposed hotel is an appropriate use for the subject lands and is compatible with the existing commercial and employment uses in the general area. It will provide a service to, and add to the amenity of, the surrounding uses and enhance the viability of the commercial area. The subject lands are of a size, shape and configuration making it well suited for a hotel use.

36The Tribunal agrees that the ZBA is appropriately constructed to add a hotel as a permitted use and establish site specific zone provisions to properly manage the implementation of the OPA. The Holding Provision serves to make sure the Region’s interest to extend the necessary water and sanitary servicing is taken into proper account.

37The Tribunal concurs with the changes depicted in the Site Plan where the Applicant is protecting for the possibility of a second access through the adjacent plaza property. The MOS provides an appropriate mechanism to establish a process to achieve this second access. Having the revised Site Plan and MOS in place, the Applicant has found a way to satisfy Council’s major issue. The Tribunal is impressed with the Applicant’s and neighbouring property owner’s effort to find a solution to the challenges of access to the subject lands.

38The Tribunal finds that the proposed hotel, as presented, is appropriate and a desirable addition to the area, represents good land use planning, is consistent or in conformity with and meets the objectives of all requisite public policy. It is good planning and in the public interest.

ORDER

39Accordingly, the Tribunal Orders.

40THAT the appeal is allowed in part, and the Official Plan for the Corporation of the Town of Oakville is amended as follows, by By-law No. 2020-072 - Official Plan Amendment 30 as set out in Attachment 1 of this order.

41THAT the appeal against By-law No. 2020-073 for the Corporation of the Town of Oakville is allowed in part, and By-law 2014-014 is amended as set out in Attachment 2 of this order. In all other respects, the Tribunal orders that the appeal is dismissed.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

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.