1579669 Ontario Inc. v. Collingwood (Town), 2021 CanLII 58450

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 30, 2021

CASE NO(S).: PL171461

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

Applicant and Appellant: 1579669 Ontario Inc.

Subject: Request to amend the Official Plan - Failure of Town of Collingwood to adopt the requested amendment

Existing Designation: Low Density Residential

Proposed Designated: Medium Density Residential

Purpose: To permit residential development

Property Address/Description: Blocks 181, 183 And 185, Plan 51M-945

Municipality: Town of Collingwood

Approval Authority File No.: D084511

OLT Case No.: PL171461

OLT File No.: PL171461

OLT Case Name: 1579669 Ontario Inc. v. Collingwood (Town)

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

Applicant and Appellant: 1579669 Ontario Inc.

Subject: Application to amend Zoning By-law No. 2010-40, as amended - neglect of Town of Collingwood to make a decision

Existing Zoning: Environmental Protection (EP) zone

Proposed Zoning: Residential Second Density Exception XX (R2-XX) zone and the Residential Third Density Exception YY (R3-YY) zone

Purpose: To permit residential development

Property Address/Description: Blocks 181, 183 and 185, Plan 51M-945

Municipality: Town of Collingwood

Municipality File No.: D084511

OLT Case No.: PL171461

OLT File No.: PL171462

Heard: June 22, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Town of Collingwood

S. O’Melia

County of Simcoe

S. O’Melia as agent for M. Green

1579669 Ontario Inc. (“157”)

B. Horosko

John Welton Custom Homebuilding Ltd. (“Sunvale Homes”)

B. Horosko

DECISION DELIVERED BY MARGOT BALLAGH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The applicant and appellant, 1579669 Ontario Inc. (“157”), made application to the Town of Collingwood (“Town”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBLA”) to re-designate and re-zone lands known as Block 181, Block 183 and Block 185 identified on Registered Plan 51M-945 to permit residential development.

2157 appealed to this Tribunal pursuant to sections 22(7) and 34(11) of the Planning Act (“Act”) as no decision had been made by the Town on the OPA or ZBA applications within the prescribed time.

3The Parties have managed to reach settlement on all issues and have requested a Settlement Hearing to satisfy the Tribunal that all statutory and policy requirements are met and that the proposed developed reflected by the settlement proposal represents good planning and is in the public interest.

4This Decision and Order results from the Settlement Hearing on the Appeals. However, it should be noted that the lands under appeal known as Block 185 are not referenced in the approval documents and pursuant to the Minutes of Settlement (“MOS”), the appeal as it relates to Block 185 is being withdrawn as part of the settlement. The proposed draft planning instruments related only to the remaining lands (Block 181 and 183).

5Eden Oak (McNabb) Inc. (“Eden Oak”) was previously granted party status but its issues have been resolved privately and it has since formally withdrawn from the proceedings.

6Nottawasaga Valley Conservation Authority (“NVCA”) was also previously granted party status but it has indicated that it is satisfied its issues are resolved and it has formally withdrawn as a party to the proceedings. NVCA did not attend the Settlement Hearing.

7The Participants were advised of the terms of settlement and were satisfied that their concerns were addressed, including their issues related to the potential for flooding and transportation impacts. None of the Participants attended the Settlement Hearing.

THE SETTLEMENT HEARING

8At the beginning of the Settlement Hearing, Counsel for 157, Barry Horosko, requested party status in the proceedings for John Welton Custom Homebuilding Ltd. (“Sunvale Homes”) for whom he now also acts. Mr. Horosko explained that Sunvale Homes has recently purchased the subject lands and participated in coordination with 157 in addressing all outstanding concerns that had been expressed earlier in these proceedings. Mr. Horosko advised that the Affidavit sworn by planner, Kristine Loft, in support of the settlement was carried out in coordination with Sunvale Homes which has a direct interest in the proceedings and will be carrying the development of Blocks 181 and 183 forward.

9Steven O’Melia told the Tribunal that the Town had no objections to the request of the new owner of Blocks 181 and 183 being granted party status as requested. He also noted that he appeared at the Settlement Hearing as agent for the County of Simcoe (“County”) and the County had no objections to the request for party status either.

10After considering the submissions of Counsel, the Tribunal was of the opinion that there are reasonable grounds to add the new party as requested, and grants party status to John Welton Custom Homebuilding Ltd. (“Sunvale Homes”).

11The Tribunal heard testimony is support of the Settlement by Kristine Loft, the land use planner retained by Sunvale Homes. Ms. Loft was duly affirmed and qualified without objection to provide expert opinion evidence in land use planning for the Tribunal. A summary of her evidence is provided below with a more detailed account found in her Affidavit sworn March 10, 2021 and marked Exhibit 1.

12Ms. Loft told the Tribunal that the 157 Lands which were subject of the appeals are legally described as Part of the South Half of Lot 40, Concession 8, in the Geographic Township of Nottawasaga, Town of Collingwood, County of Simcoe. The 157 Lands are located north of Poplar Sideroad and east of Hurontario Street. The remaining development Blocks 181, 183, and 185 (Parcels 1, 2, and 3) comprise Phase 2 of the Pretty River Estates subdivision. Phase 1 is located to the west (west of Portland Street) and is largely built out. Under the Town’s Official Plan, the lands are currently designated Residential on Schedule A – Land Use Plan, and Low Density on Schedule C – Residential Density Plan. The lands are currently zoned Environmental Protection on Schedule A – Map 24 to the Town’s Zoning By-law No. 2010-040, which is restricted to conservation related uses.

13Blocks 181 and 183 are located within the corporate boundaries of the Town. They are predominantly flat with the most notable features being the existence of the Pretty River and the Hamilton Drain. The Pretty River traverses the property in a southwest to northeast direction. The Hamilton Drain affects the northwesterly portion of the subject property.

14Lands to the south are located outside the Town, in the Township of Clearview. Lands to the north and to the west are designated and zoned for residential use. To the east is a former rail line, used for trail purposes and known as the Heather Pathway.

15Ms. Loft stated that the appeals by 157 would facilitate the development of two separate parcels on the 157 Lands. She said the applications propose the following:

a. OPA: change in land use designation on Schedule C of the Town’s Official Plan from Low Density Residential to Low-Medium Density Residential Exception Two; and

b. ZBLA: change in zoning from Environmental Protection (EP) to Residential Third Density (H19) (R3-60 and R3-61).

16Ms. Loft explained that the lands are also subject to site plan control, but a site plan application has not been filed. An application for a plan of condominium has been submitted for Blocks 181 and 185.

17Ms. Loft noted that the Town of Collingwood, the County of Simcoe and the Nottawasaga Valley Conservation Authority, as the agencies represented by legal counsel, were involved throughout the settlement process.

18Ms. Loft summarized the issues of the parties to the appeals as follows:

• Nottawasaga Valley Conservation Authority: The NVCA had raised issues relating to flooding and natural hazards, and the natural environment.

• County of Simcoe: The County had indicated support for four issues raised by the NVCA, and has indicated separately that a proper minimum setback from the County Road should be provided for.

• Town of Collingwood: The Town’s issues related principally to whether the developable limits of the site have been properly established based on natural heritage constraints. The Town had also raised certain miscellaneous issues, including the imposition of a holding provision to ensure the availability of water capacity, the preferred tenure approach, and the preservation of Town Trail connectivity.

• Eden Oak (McNabb) Inc.: The Eden Oak issues related to cost sharing.

19Ms. Loft said that the main issue raised with the original application related to the limits of potential flooding due to the proximity of the Pretty River, a regulated watercourse in close proximity to all three parcels proposed for development. She said that resolution of this issue took some time as both 157 and the Town undertook flood related analysis. That work is now complete and has formed the basis of a settlement between 157 and the three involved government agencies. She noted that the settlement has resulted in a withdrawal of the proposal for Block 185. As a result, the current appeal addresses only Block 181 and 183, Plan 51M-945.

20The NVCA submitted correspondence to the Town on December 11, 2019 which provided acceptance of the additional technical studies which included a Tatham Engineer’s “Proposed Pretty River Estates Phase 2, Town of Collingwood Response to Greenland’s Pretty River Hydraulics Assessment” and Greenland International Consulting Engineers “Collingwood Stormwater Management Master Model – Pretty River Hydraulics Assessment – Draft”. Ms. Loft told the Tribunal that the NVCA was satisfied that their issues have been addressed.

21According to Ms. Loft, a Settlement was largely achieved with resolution of the flooding limits being identified and accepted by the parties including the County, the Town and the NVCA. The County also had certain specific road and setback design issues which she said have been resolved and the Town, subject to both agencies’ concerns, required certain items in the planning instruments. As a result, MOS were entered into on February 24, 2020 with the Town.

22Ms. Loft told the Tribunal that the County accepted the MOS between the Town and 157 on the assurance that the requirement for a 10-metre development setback be incorporated into the ZBLA. Ms. Loft confirmed that the 10-metre development setback requirement is incorporated into the draft ZBLA provided to the Tribunal for approval.

23This left the remaining party, Eden Oak an abutting developer, with concerns related to cost sharing matters on infrastructure with 157. According to Ms. Loft, this matter as now been resolved by way of private agreement and Eden Oak has withdrawn as a party.

24Ms. Loft confirmed that the proposed OPA and ZBLA pertain only to Blocks 181 and 183, Plan 51M-945.

25She said the lands are designated Residential on Schedule A – Land Use Plan to the Collingwood Official Plan. However, she said Schedule C – Residential Density Plan designated the lands for Low Density residential use. In her opinion, permitted uses in the Low-Density Residential category include single-detached dwellings, semi-detached dwellings, small-lot single detached dwellings, duplex dwellings, local convenience uses, home occupations, residential intensification uses, nursing homes and senior citizen retirement homes. She said that the maximum density in the low-density residential designation is 12 dwelling units per gross hectare for single detached dwellings and 15 dwellings units per gross hectare for semidetached, small-lot single and duplex dwellings units.

26According to Ms. Loft the proposed development consists of 134 bungalow and two-storey condominium townhouses as follows:

• Parcel 1 (Block 181): 90 bungalow townhouses; 9 metres frontages; Density of 23 units per hectare

• Parcel 2 (Block 183): 44 bungalow townhouses (previous plan showed 21 single detached dwellings); 9 metres frontages; Density of 23 units per hectare.

27She said the proposed OPA would re-designate Blocks 181 and 183 to Low-Medium Density Exception Two which will permit townhouses with maximum density of 23 units per hectare. She indicated that apartments will not be a permitted use within the Low-Medium Density Exception Two land use designation.

28Ms. Loft told the Tribunal that Schedule A Map 24 to the Town’s Zoning By-law No. 2010-40 zoned the lands in Blocks 181 and 183 as Environmental Protection (EP).

29According to Ms. Loft, the purpose of the proposed ZBLA is to rezone Block 181 and 183 from the Environmental Protection (EP) zone and Public Roadway (PR) zone to the Holding Nineteen – Residential Third Density Exception Sixty (H19) R3-60) Zone and to rezone Block 183 from the Environmental Protection (EP) zone to the Holding Nineteen-Residential Third Density Exception Sixty-One (H19) R3-61 Zone.

30Ms. Loft referenced the holding provision H19 in the proposed ZBLA setting out the condition that there will need to be confirmation of adequate and functional municipal water services. It was her opinion that this holding provision adequately addresses a recent Interim Control By-law passed by the Town on April 26, 2021 to deal with the Town’s water conservation issues.

31Mr. O’Melia confirmed that the Town and the County were satisfied that the Holding provision was sufficient to address the Interim Control By-law and Town water concerns.

32In Ms. Loft’s view, the effect of the proposed ZBLA is to permit the development of the subject lands for Low-Medium Density residential dwellings – specifically single detached dwellings, semi-detached dwellings, townhouse dwelling and a group or cluster of dwellings and allow for a particular form of tenure – freehold lots in association with a common element condominium – generally consisting of a private road, visitor parking, amenity areas and buffers.

33Ms. Loft explained to the Tribunal that the OPA and ZBLA that she recommends for approval are the same as those contained in the MOS, subject to two exceptions. She said at the time of the MOS, being February 24, 2020, the relevant policy documents were the Provincial Policy Statement (“PPS”) 2014 and the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) 2019 and were incorporated into the proposed OPA. Ms. Loft noted that she has evaluated the approval in the context of the updated PPS 2020 and Growth Plan 2019 as amended by Amendment 1 in 2020, and she has updated the references in the OPA. Ms. Loft told the Tribunal that she recommends for approval to the Tribunal the latest version of the OPA and ZBLA appended to this Decision and Order as set out in Attachments 1 and 2, respectively.

Policy Analysis

PPS 2020

34PPS 2020 provides policy direction on matters of provincial interest related to land use planning and development in Ontario. This Provincial Policy Statement was issued under section 3 of the Act and came into effect May 1, 2020. It replaces the Provincial Policy Statement issued April 30, 2014.

35Ms. Loft provided her opinion that the approval of the proposed OPA and ZBLA for the subject lands is consistent with the PPS 2020 and specifically Section 1.1.1 – Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns and 1.1.3 – Settlement Areas.

36She said the proposal will accommodate new population growth on vacant land in an area that can be serviced, within a defined Settlement Area (Section 1.1.1 a, c, d) (Section 1.1.3.6) (Section 1.4.1, 1.4.3b).

37In her view, the proposal will incorporate appropriate range and mix of residential uses in a compact form to meet the long-term needs of the community (Section 1.1.1 b, e) (Section 1.1.3.6) (Section 1.4.1, 1.4.3b).

38She said the proposal will assist the Town in meeting its intensification and density targets set by the Province of Ontario and the County of Simcoe (Section 1.1.1 e, g, i) (Section 1.1.3.2 a, c, d, e) (Section 1.1.3.6) (Section 1.4.1, 1.4.3b).

39According to Ms. Loft, the proposal will permit lot creation on lands designated by the Official Plan for development, on full municipal services (Section 1.1.1 g, h) (Section 1.1.3.1) (Section 1.1.3.2 a, b, c, d, e) (Section 1.6.6.2) (Section 1.6.6.7).

40Further, she said the proposal will promote green spaces by connecting the proposed development to surrounding neighbourhoods and open space lands (Section 1.1.3.2 d) (Section 1.5.1 a, b).

41The development will create pedestrian connections including walkways that will provide accessibility of residents throughout the development, she said (Section 1.1.3.2 e) (Section 1.5.1 a, b).

42Ms. Loft told the Tribunal that the lands are identified to be within the two-zone concept for the Pretty River. A spill analysis has been undertaken by Tatham Engineering that she said confirms that the proposed development is located within the flood fringe and was approved by engineering staff at the NVCA and the Town (Section 3.1.6).

43Ms. Loft gave her expert opinion that the proposal is consistent with the PPS 2020.

44Based on the evidence of Ms. Loft, the only expert witness to testify at the Settlement Hearing, the Tribunal is satisfied that the proposed OPA and ZBLA, as set out in Attachments 1 and 2 to this Decision and Order are consistent with the PPS 2020.

Growth Plan 2020

45Section 3(5) of the Planning Act requires decisions of this Tribunal that affect a planning matter to be made in conformity with the Provincial Growth Plans that are made under the Places to Grow Act, 2005 and in effect on the date of the decision. Growth Plan 2020 is in effect.

46Ms. Loft gave her opinion that the proposal conforms to the Growth Plan 2020.

47Ms. Loft said that the Growth Plan provides a guide for growth and development in the Greater Golden Horseshoe directing where and how growth should occur. Generally, the policies are directed at absorbing and planning for population and employment growth.

48In her view, the re-designation of lands from Low Density Residential to Low-Medium Density Residential Exception Two conforms with the Growth Plan 2020.

49She said that the Growth Plan 2020 encourages a diverse mix of land uses and directs growth to Settlement Areas where there are full municipal services.

50The Growth Plan 2020 has as its guiding principle, the development of compact, vibrant and complete communities. According to Ms. Loft, the proposed re-designation from Low Density to Low-Medium Residential Exception Two will allow for the development of condominium townhouses which are compatible with the surrounding land uses, developed on full municipal services.

51She told the Tribunal that the development contributes to the achievement of the intensification and density targets identified in the Growth Plan 2020.

52It was Ms. Loft’s expert opinion that the proposal conforms to the Growth Plan 2020.

53Based on the evidence of Ms. Loft, the only expert witness to testify at the Settlement Hearing, the Tribunal is satisfied that the proposed OPA and ZBLA, as set out in Attachments 1 and 2 to this Decision and Order conform to the Growth Plan 2020.

County OP

54Ms. Loft indicated that Blocks 181 and 183 are designated as “Primary Settlement Area” on Schedule 5.1 Land Use Designations to the County of Simcoe Official Plan, 2016.

55In her opinion, the proposed re-designation and re-zoning conforms to the County OP.

56She indicated that Blocks 181 and 183 are located within a primary settlement area within the County where full municipal services can be provided. She said the proposal conforms to the Growth Management Policies (Part 3) of the County OP where goals and policies promote a wide range of housing types in compact communities at transit supportive densities.

57Ms. Loft gave her expert opinion that the proposal conforms to the County OP.

58Based on the evidence of Ms. Loft, the only expert witness to testify at the Settlement Hearing, the Tribunal is satisfied that the proposed OPA and ZBLA, as set out in Attachments 1 and 2 to this Decision and Order conform to the County OP.

Town OP

59Ms. Loft indicated that Blocks 181 and 183 are designated Residential on Schedule A – Land Use Plan to the Town OP. Schedule C – Residential Density Plan designates the land for Low Density residential use.

60She said the permitted uses in the Low-Density Residential Category include single-detached dwellings, semi-detached dwellings, small lot single detached dwellings, duplex dwellings, local convenience uses, home occupations, residential intensification uses, nursing homes and senior citizen retirement homes. The maximum density in the low-density residential designation is 12 dwelling units per gross hectare for single detached dwellings and 15 dwelling units per gross hectare for semi-detached, small lot single and duplex dwelling units.

61Ms. Loft told the Tribunal that the proposed development consists of 134 bungalow and two storey condominium townhouses. Block 181 will include 90 bungalow townhouses with a density of 23 units per hectare. Block 183 will include 44 bungalow townhouses with a density of 23 units per hectare.

62She said the Low-Medium Density designation was introduced by OPA 33 in 2015. The primary permitted uses include single-detached dwellings, semi-detached dwellings, duplex dwellings, fourplexes, triplexes, townhouses, boarding homes and apartments. The low-medium density designation shall have a minimum density of 20 dwelling units per gross hectare and a maximum density of 30 units per gross hectare.

63In Ms. Loft’s view the proposed residential use is contemplated in the Official Plan (Schedule A) and the use of the lands for medium density is appropriate for the area given the location and the mix and range of uses in the surrounding area. The proposed residential uses conform to Section 4.3 – Residential and Section 4.3.2.4 – General Policies Applicable to all Residential Density Designations.

64Ms. Loft gave her expert opinion that the development proposal generally conforms to the Town OP.

65Based on the evidence of Ms. Loft, the only expert witness to testify at the Settlement Hearing, the Tribunal is satisfied that the proposed OPA and ZBLA, as set out in Attachments 1 and 2 to this Decision and Order generally conform to the Town OP.

Zoning

66Ms. Loft told the Tribunal that Schedule A Map 24 to the Town’s Zoning By-law No. 2010-40 zones the lands as Environmental Protection (EP).

67In her view, and as discussed above, the purpose of the proposed ZBLA is to rezone the subject lands from the Environmental Protection (EP) zone and Public Roadway (PR) zone to the Holding Nineteen – Residential Third Density Exception Sixty (H19) R3-60 Zone and the Holding Nineteen-Residential Third Density Exception Sixty-One (H19) R3-61 Zone.

68She said the effect of the proposed ZBLA is to permit the development of Blocks 181 and 183 for Low-Medium Density residential dwellings – specifically single detached dwellings, semi-detached dwellings, townhouse dwelling and a group or cluster dwellings and allow for a particular form of tenure – freehold lots in association with a common element condominium – generally consisting of a private road, visitor parking, amenity areas and buffers.

69As noted, the Residential Third Density Exception Sixty (H19) R3-60 Zone and the Holding Nineteen-Residential Third Density Exception Sixty-One (H19) R3-61 Zone both include a Holding Symbol (H19), the condition of which is “Confirmation of adequate and functional municipal water services”.

70Parcel 1 (Block 181), she said, is proposed to be re-zoned to the R3-60 Zone, Exception 60 which includes the following site-specific exception:

RESIDENTIAL THIRD DENSITY EXCEPTION SIXTY – R3-60 ZONE

Uses shall be limited to the following:

• Single detached dwellings;

• Semi-detached dwellings;

• Townhouse dwellings; and,

• Group or cluster dwellings.

The following zone exception shall apply;

Minimum yard abutting the rear lot line of a Residential Second Density Nine (R2-9) Zone: 7.5 m

Minimum yard for any building or structure abutting a street under the jurisdiction of Simcoe County: 10.0 m

For the purposes of determining zoning conformity for dwelling units which do not directly front onto a public road, lands within this zone shall be considered to be one contiguous lot.

71Parcel 2 (Block 183), she said, is proposed to be re-zoned to the R3-61 Zone, Exception 61 which includes the following site-specific exception:

RESIDENTIAL THIRD DENSITY EXCEPTION SIXTY-ONE – R3-61 ZONE Uses shall be limited to the following:

• Single detached dwellings;

• Semi-detached dwellings;

• Townhouse dwellings; and,

• Group or cluster dwellings.

The following zone exception shall apply;

Minimum yard abutting the rear lot line of a Residential Second Density Forty-Five (R2-45) Zone: 7.0 m

For the purposes of determining zoning conformity for dwelling units which do not directly front onto a public road, lands within this zone shall be considered to be one contiguous lot.

72Ms. Loft gave her expert opinion that the proposal does comply with the Town’s Zoning By-law No. 2010-40.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

73Ms. Loft told the Tribunal that a review of the Planning Act confirms that the proposal meets the requirements of the relevant sections of the Planning Act which include Section 2 that addresses matters of Provincial Interest and Section 3 that requires consideration of Policy Statements and Provincial Plans.

74Ms. Loft gave her expert opinion that the proposal meets the requirements of the Planning Act.

75Based on the evidence of Ms. Loft, the only expert witness to testify at the Settlement Hearing, the Tribunal is satisfied that the proposed OPA and ZBLA, as set out in Attachments 1 and 2 to this Decision and Order, have had proper regard for matters of Provincial Interest, are consistent with the PPS 2020 and conform to the Growth Plan 2020 as required by the Planning Act.

CONCLUSION

76Based on the whole of the evidence, both oral and documentary, and the submissions of counsel, including counsel for the Town and County, the Tribunal is satisfied that the recommended proposed OPA and ZBLA as set out in Attachments 1 and 2 to this Decision and Order, meet the applicable policy framework, represent good planning and are in the public interest.

ORDER

77The Tribunal Orders that John Welton Custom Homebuilding Ltd. (“Sunvale Homes”) is added as a party to these proceedings.

78The Tribunal Orders that the appeal is allowed in part and the Amendment No. 45 (Pretty River Estate) to the Official Plan for the Town of Collingwood is modified substantially in accordance with Attachment 1 to this Order, and as modified is approved.

79The Tribunal Orders that the appeal against By-law No. 2010-040 of the Town of Collingwood is allowed in part, and By-law No. 2010-040 is amended substantially in accordance with Attachment 2 to this order. In all other respects, the Tribunal orders that the appeal is dismissed.

80The Tribunal notes that the appeals related to lands known as Block 185 have been withdrawn.

“Margot Ballagh”

Margot Ballagh 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.