Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 28, 2021
CASE NO(S).: PL180874
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 508 Beechwood Inc.
Appellant: Schembri Property Management
Subject: By-law No. BL 2018-050
Municipality: City of Waterloo
LPAT Case No.: PL180874
LPAT File No.: PL180874
LPAT Case Name: 508 Beechwood Inc. et al v. Waterloo (City)
Heard: May 31 - June 4, 2021 by Video Hearing (“VH”)
APPEARANCES:
Parties
Counsel
Schembi Property Management (“Appellant”)
J. Meader
City of Waterloo (“City”)
B. Engell
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is an appeal against the City’s new Comprehensive Zoning By-law No. 2018-050 (“CZB”). Integral to the appeal is the juxtaposition of maximizing development and optimizing development, within a local context.
DECISION
2For the reasons set out below the appeal is dismissed.
CHRONOLOGICAL EXTRACTS
April 2012 The City adopted the new Official Plan (“City OP”).
June 25, 2012 The City adopted Zoning By-law No. 2012-070 (“Northdale Zoning”).
November 2012 The City OP was approved by the Regional Municipality of Waterloo (“Region”).
2015 The City initiated the CZB review.
January 2016 A draft of the CZB was presented to City Council.
April 2017 A second draft was presented to City Council.
September 14, 2017 The Tribunal hearing of Avila Investments Ltd. v. Waterloo (“Avila”) (see PL 170533) commenced.
January 2018 Avila was concluded, and the Tribunal reserved its decision.
May 7, 2018 The City released a discussion paper for related Official Plan Amendment 22 (“OPA 22”).
July 9, 2018 A third draft of the CZB was released.
August 10, 2018 The Appellant’s planner made submissions to the City.
August 13, 2018 The formal meeting of City Council with regard to the CZB resulted in a deferral and directions to staff.
September 10, 2018 The City Council enacted the CZB.
October 9, 2018 The Appellant filed its appeal.
June 11, 2019 OPA 22 was approved by the Region.
July 2019 With no appeals against OPA 22 it came into force and effect.
September 30, 2019 The Tribunal released the Avila decision, and thereafter Avila sought a review of the Tribunal decision.
January 16, 2020 The Tribunal found that there were errors in the Tribunal’s Avila decision and ordered a rehearing.
BACKGROUND
3The City is one of the municipalities located within the Region. Only a very modest portion of the City is “green field” (i.e. available for future urban development). As part of the City’s Official Plan exercise, the vision was: “to look inward and look upward”.
4As required by the Planning Act (“PA”), subsequent to the adoption of the new City OP, the City commenced its review of its existing Comprehensive Zoning By-law.
5After the new CZB was adopted by City Council, there were but two appeals: the first by 508 Beechwood Inc. (which dealt with a pre-existing development application which itself was under appeal) and the Tribunal dispensed with that appeal with a settlement between the parties in PL 180793 and PL 180874.
6This appeal was the second appeal and now sole remaining appeal against the CZB. It has been scoped to apply only to the four parcels known as 115 and 133 Bridgeport Road East and 109 Bridgeport Road East and 30-32 Weber Street North (“Remaining Lands”). The Tribunal notes that the subject appeal is against the CZB; there is no development application with regard to any of the Remaining Lands.
REMAINING LANDS
7The Remaining Lands, in one aspect or another, are contiguous. From the Appellant’s visual Exhibit 4B, the Remaining Lands generally occupy the southeast corner of the intersection of Bridgeport Road East and Weber Street North.
8Both Bridgeport Road East and Weber Street North are Regional roads. The actual corner location at Bridgeport Road East and Weber Street North is occupied by 109 Bridgeport Road East and it is currently used as an auto service, sales, and rental facility.
9To the south of that is 30-32 Weber Street North with frontage onto both Weber Street North and Royal Street and it is currently in a commercial use with a furniture store.
10East of these two commercial properties is 115 Bridgeport Road East. It is a large irregularly shaped parcel of land having an area of about 8,390 square metres (“sq m”) with frontage onto both Bridgeport Road East of about 86.5 metres (“m”) and Royal Street (about 113 m). 115 Bridgeport Road East is currently vacant and was a former industrial and manufacturing facility.
11The final property is 133 Bridgeport Road East. It has about 16.75 m of frontage on Bridgeport Road East and a modest area of about 800 sq m, but part of its rear lot line abuts 115 Bridgeport Road East. It is separated from the bulk of 115 Bridgeport Road East by four intervening residential properties along the Bridgeport Road East frontage.
LAND USE DESIGNATIONS
12The Regional Official Plan (“ROP”) designates all of the Remaining Lands as being within a Built-Up Area, on a transit corridor, on two Regional roads (Bridgeport Road East and Weber Street North) and on a Regional cycling route (Bridgeport Road East and Weber Street North).
13With regard to the City OP, of the Remaining Lands, 115 Bridgeport Road East is in an Industrial Transitional Area, with the western portion of 115 Bridgeport Road East designated Mixed-Use Medium High Density Residential, within a Major Node, and the Medium High Density provides a maximum height of 40 m. The easterly portion is a Mixed-Use Medium Density Residential (not within a Major Node) and with a maximum height of 20 m.
14133 Bridgeport Road East is designated Mixed-Use Medium Density Residential (not within a Major Node) and with a 20 m height.
15With regard to 109 Bridgeport Road East and 30-32 Weber Street North they have a general Commercial designation, but they are further designated Mixed-Use Community Commercial, they are within a Major Node, and they have a Medium High Density maximum height of 40 m.
CONTEXT
16The Remaining Lands are proximate to and west of the Downtown Waterloo Primary Node.
17To the north of the Remaining Lands are commercial uses including a Shoppers Drug Mart and automotive services; to the north west is a community shopping centre which includes a food store; further to the north there are mid-rise residential buildings on Lincoln Road, and there are single detached dwellings on Bridgeport Road, east of the commercial uses. To the south there are single detached dwellings on Royal Street, to the east there are single detached dwellings, and to the west there are commercial uses.
THE ISSUE
18While the Appellant’s appeal indicates that the CZB generally implements the City OP uses and that the Appellant supports the proposed height and density permissions in the CZB, the Appellant objects to the proposed performance standards in the RMU zone as the performance standards specifically in the RMU-40 zone are such that the planned height and density cannot be realized and therefore the City OP is not being implemented.
19In particular, the Appellant’s appeal is focused on Table 7O, Table 7P and 8F, which provide zoning regulations for maximum height, maximum density, tower separation distances, maximum tower horizontal dimensions, and tower stepbacks above podiums (see Attachment 1).
20Generally Table 7O for the Residential Mixed-Use zone has a requirement for a minimum building height, has a maximum building height, has density minimums and maximums, and Table 7P continues and it provides for the maximum podium height, separation distances between towers on the same lot or to an interior lot line, maximum tower footprint, and step backs from the podium.
21Similarly, in Table 8F there are provisions for minimum and maximum density, maximum building height, podium requirements, and minimum tower separations for the Mixed-Use Community Commercial zones.
22It is these performance standards that are alleged to be in conflict with the City OP and allegedly result in the CZB not being consistent with the Provincial Policy Statement 2020 (“PPS”) and not conforming with A Place To Grow: Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”).
POLICY REGIME
23The Tribunal will examine the Policy Regime including provisions from the Planning Act, the PPS, the Growth Plan, the ROP, and the City OP.
24Commencing with the PA the Tribunal would first note from s. 1.1 that the purposes of the Planning Act include:
b) to provide for a land use planning system led by provincial policy; and
f) to recognize the decision-making authority and accountability of municipal councils and planning.
25Section 2 of the Planning Act provides that there are matters of provincial interest which include:
h) the orderly development of safe and healthy communities;
j) the adequate provision of a full range of housing including affordable housing;
p) the appropriate location of growth and development;
q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
r) the promotion of a built form that:
i) is well designed;
ii) encourages a sense of place; and
iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.
26In that regard s. 2.1(1) provides that when the Tribunal makes a decision that relates to a planning matter, the Tribunal is to have regard to any decision that is made by municipal council as it relates to the planning matter and also to have regard to any information and material that was before council when it made its decision.
27Section 3(5) of the Planning Act mandates that any decision of the Tribunal shall be consistent with the policy statements that have been issued by the Province and are in effect at the date of the decision, and also shall conform to any provincial plans that are in effect on that date.
28As the then (new) City OP was in force and of effect, the City was required to update its zoning by-law with regard to the new official plan as required by s. 26(9) of the Planning Act.
29Turning to s. 34(1) as it deals with zoning by-laws, the Planning Act provides that zoning by-laws may be passed by councils of the local municipalities:
- Construction of Buildings or Structures: For regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures to be erected or located within the municipality …; (emphasis added)
30Additionally, s. 34(3) states:
The authority to regulate provided in paragraph 4 of subsection 1 includes and, despite the decision of any court, shall be deemed always to have included the authority to regulate the minimum area of the parcel of land mentioned therein and to regulate the minimum and maximum density and the minimum and maximum height of development in the municipality or in the area or areas defined in the by-law. (emphasis added)
31And finally, s. 41 of the Planning Act provides for site plan control.
PPS
32From the PPS, the Tribunal will first start with the definition of “intensification” which means:
The development of a property, site or area at a higher density than currently exists through:
a) redevelopment, including the reuse of brownfield sites;
b) the development of vacant and/or underutilized lots within previously developed areas;
c) infill development; and
d) the expansion or conversion of existing buildings.
33Turning to the Preamble of the PPS, it states that the PPS provides policy directions on matters of provincial interests related to land use planning and development and it supports the provincial goal to enhance the quality of life for all Ontarians. It states that municipal official plans are the most important vehicle for the implementation of the PPS, that official plans should be kept up to date, and zoning by-laws should be kept up to date.
34The Preamble continues in Part 3 to indicate that the PPS should be read in its entirety, that the PPS recognizes the diversity of Ontario and that local context is important, that the policies represent minimum standards and planning authorities and decision makers may go beyond these minimum standards to address matters of importance to a specific community.
35From the Vision for Ontario’s Land Use Planning System, the PPS focuses growth and development within urban and rural settlement areas, encourages authorities to permit and facilitate a range of housing options including new development as well as residential intensification.
36The Vision statement specifically speaks to efficient development patterns which optimize the use of land, resources and public investment and infrastructure and public service facilities.
37Further it provides that strong, livable and healthy communities promote and enhance human health and social wellbeing, are economically and environmentally sound, and are resilient to climate change.
38Within the policies under Section 1 - Building Strong Healthy Communities, the PPS notes that healthy, livable and safe communities are sustained by:
b) accommodating an appropriate affordable market-based range and mix of residential types;
e) promoting the integration of land use planning, growth management, transit supportive development, intensification and infrastructure planning to achieve cost-effective patterns, optimization of transit investments, and standards to minimize land consumption and servicing costs.
39Under s. 1.1.3 – Settlement Areas: these are to be the focus of growth and development and efficiently use land and resources. Section 1.1.3.3 provides that a planning authority shall identify the appropriate locations and promote opportunities for transit supportive development accommodating a significant supply and range of housing options, and in s. 1.1.3.4 appropriate development standards should be promoted which facilitate intensification redevelopment and compact form.
40Section 1.3.5 then references the provincial targets for intensification and redevelopment within Built-Up Areas, which will be minimums.
41Section 1.4 deals with Housing and it requires an appropriate range and mix of housing options and densities and in s. 1.4.3(f) this is to be accomplished by establishing development standards for residential intensification, redevelopment, and new residential development which will minimize the cost of housing and facilitate compact form, while maintaining appropriate levels of public health and safety.
42Section 1.7 deals with long term economic prosperity which should be supported by:
c) optimizing the long term availability and use of land resources, infrastructure and public service facilities;
e) encouraging a sense of place, by promoting well-designed built form and cultural planning, and conserving features that help define character;
f) promoting the redevelopment of brownfield sites. (emphasis added)
43Section 4 is the Implementation and Interpretation part of the PPS. There in s. 4.6 it states:
The official plan is the most important vehicle in the implementation of this Provincial Policy Statement. Comprehensive, integrated and long-term planning is best achieved through official plans.
Official plans shall identify provincial interests and set out appropriate land use designations and policies. To determine the significance of some nature heritage features and other resources, some evaluation may be required.
In order to protect provincial interests, planning authorities shall keep their official plans up-to-date with this Provincial Policy Statement. The policies of this Provincial Policy Statement continue to apply after adoption and approval of an official plan.
GROWTH PLAN
44Turning now to the Growth Plan the Tribunal begins with the definition of “Compact Built Form” which means:
A land use pattern that encourages the efficient use of land, walkable neighbourhoods, mixed land uses (residential, retail, workplace, and institutional) all within one neighbourhood, proximity to transit and reduced need for infrastructure. Compact built form can include detached and semi-detached houses on small lots as well as townhouses and walk-up apartments, multi-storey commercial developments, and apartments or offices above retail. Walkable neighbourhoods can be characterized by roads laid out in a well-connected network, destinations that are easily accessible by transit and active transportation, sidewalks with minimal interruptions for vehicle access, and a pedestrian-friendly environment along roads to encourage active transportation. (emphasis added)
45The Vision for the Growth Plan indicates that the Greater Golden Horseshoe will continue to be a great place to live, work and play. Its communities will be supported by a strong economy and an approach that puts people first. The Vision continues that the Greater Golden Horseshoe will have sufficient housing supply that reflects market demand and what is needed in local communities. Further that urban centres will be vibrant and characterized by more compact development patterns that support climate change mitigation and adaption, and provide a diversity of opportunities for living, working and enjoying culture. This, the Vision for the Growth Plan states will translate into a place where residents enjoy a high standard of living and exceptional quality of life.
46In s. 1.2.1 under Guiding Principles, it states that the policies of the Growth Plan regarding how land will be developed will be based on a number or principles including:
the achievement of complete communities that are designed to support healthy and active living and meet people’s needs for daily living throughout an entire lifetime…
to prioritize intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability…
to support a range and mix of housing options… and
to provide for different approaches to manage growth and recognize the diversity of communities within the Greater Golden Horseshoe…
47In s. 2 under Where and How to Grow, the Growth Plan references minimizing land consumption through compact built form and supporting the achievement of complete communities.
48In this regard it states the following:
It is important to optimize the use of the existing urban land supply as well as the existing building and housing stock to avoid over-designating land for future urban development while also providing flexibility for local-decision-makers to respond to housing need and market demand. This plan’s emphasis on optimizing the use of existing urban land supply represents an intensification first approach through development and city-building, one which focuses on making better use of our existing infrastructure and public service facilities, and less on continuously expanding the urban area. (emphasis added)
49Section 2.2.1 deals with Where and How to Grow and states that by applying the policies of the Growth Plan complete communities will be achieved that feature a diverse mix of land uses, improve social equity and overall quality of life including human health for people of all ages, abilities and income, provide a diverse range in mix of housing options, and provide for a more compact built form.
50In s. 2.2.2 – under Delineated Built-Up Areas, the Growth Plan provides that until the next municipal comprehensive review is approved and in effect, the minimum intensification target as of July 1, 2017 will continue to apply (i.e. 45%) but that all municipalities will develop a strategy to achieve the minimum intensification target.
51That minimum intensification target will be achieved through a strategy that includes identifying strategic growth areas, identifying the appropriate type and scale of development in strategic growth areas to generally encouraging intensification throughout the built up area, and f) be implemented through official plan policies and designations, updated zoning and other supporting documents.
52Section 5 is the Implementation and Interpretation of the Growth Plan and it provides that (except for some minor matters) most planning decisions can affect the achievement of the policies of the Growth Plan. The Growth Plan text carries on to provide:
It is therefore in the best interests of all municipalities to complete their work to conform with this Plan, including all the official plans and zoning by-laws, as expeditiously as possible within the required time frames. This should include using relevant legislative and relevant regulatory tools and other strategies to plan for a variety of heights, densities and other elements of site design within settlement areas to achieve the desired urban form and the minimum intensification and density targets of this Plan. (emphasis added)
ROP
53Turning to the ROP, Chapter 1 provides that the Region needs to be a liveable community that is well designed, accommodates people at all stages of life, offers a variety of employment opportunities and provides easy access to shopping, health care, educational, recreational and other services to meet daily needs.
54In Table 1 the Regional Population and Employment Forecasts are provided and for the City: the 2006 population was 101,700 and the targeted 2031 population is 140,000. Under the heading Planned Community Structure, the ROP notes that virtually all of the Region’s future growth will occur within the Urban Area and the Township Urban Area designations with a substantial portion of this growth directed to the existing built-up area of the Region through “reurbanization”.1 The focal point for reurbanization will include Urban Growth Centres, Township Urban Growth Centres, Major Transit Stations, Reurbanization Corridors and Major Local Nodes.
55Under the heading Reurbanization Target, s. 2.C.2 states that area municipalities will establish policies in their official plans and other supporting documents to ensure that by 2015 and each year thereafter a minimum of 45% of all new residential development occurring annually within the Region as a whole will be constructed within the Built-Up Area. In s. 2.D under the heading General Development Policies the direction is that area municipalities will ensure that development occurring within the urban areas is planned and developed in a manner that: … f) respects the scale, physical character and context of established neighbourhoods and areas where reurbanization is planned to occur.
56Under the heading Transit Oriented Development Policies, s. 2.D.2 directs that municipalities will apply these development provisions in reviewing development applications or site plans that are serviced by existing or planned rapid transit and those provisions include supporting a more compact urban form, provide an appropriate mix of land uses, promote medium and higher density development as close to transit stops as possible, support a high quality public realm to enhance the identity of the area and create gathering points for social interaction, community events and other activities.
57Finally under the heading Major Local Nodes, s. 2.D.14 references that these Major Local Nodes will refer to an existing or planned clusters of development located along or at key intersections of transit corridors and that these Nodes will be planned and developed to accommodate additional population and/or employment growth consistent with the existing or planned transit service levels. Further in s. 2.D.15 area municipalities will, where applicable, designate Local Major Nodes and establish associated policies in official plans to ensure that future development within these Nodes is in conformity with the policies of the ROP.
CITY OP
58Under s. 2.3 (The Basis of the Plan) an overview of certain trends and factors are set out that are considered to have significant influence on the land use policies and designations of the City OP. The first of which is the Growth and City Form and it states:
There is a limited supply of vacant land for future urban growth. To ensure that population and economic growth can be accommodated, land within the City must be used more efficiently. A significant portion of the City’s population and employment growth is expected to be accommodated through intensification within the Built-Up Area, resulting in changes to height and density in existing areas. Focal points for intensification include the Uptown Waterloo Urban Growth Centre, Major Transit Station Areas, and other designated Nodes and Corridors.
59Subsection 5 provides that a high standard of urban design supports a memorable, attractive and liveable city. To achieve this, policies of the City OP will define key urban design elements to be applied generally across the City and more specifically within the Uptown Waterloo Growth Centre and other designated Nodes and Corridors.
60Turning to the Objectives in s. 3.1, the first objective of the City is to plan for growth that accommodates future growth within the urban boundary area through intensification primarily within designated Nodes and Corridors.
61Its second objective is to develop an urban form that:
a) provides for an appropriate mix of land uses in close proximity to one another increasing the opportunity for people to walk, bike or take public transit to where they work, shop, learn and play;
b) provides for compact urban growth;
d) promotes high quality architecture and landscape;
e) provides for a community of unique neighbourhoods that offer a range of safe, comfortable, lively and accessible places for people to interact…
62Subsection 4 the City’s Urban Design objectives are:
a) to promote a high standard of urban design that will result in an attractive, human scale city;
b) to respect site context and enhance a sense of place that results in compatible development and fosters a sense of identity;
c) to promote connectivity and interaction that provides universal access for all citizens and emphasizes pedestrian accessibility, safety and comfort across the city;
d) to promote creativity and innovation that results in interesting streetscapes, building design and architecture, amenities spaces and landmarks within the city.
63In s. 3.3 under the heading Residential Intensification, residential intensification opportunities will be provided within the Uptown Waterloo Urban Growth Centre and other designated Nodes, and there will be minimum and maximum residential densities. Those minimum and maximum densities are found in s. 3.4 which states the following:
Schedule B1 – Height and Density, outlines the maximum permitted heights and densities in order to guide built form within Waterloo’s varied neighbourhoods. The intent of the height categories is to standardize permitted heights throughout the City in order to provide predictability for all stakeholders on the heights that can be achieved…
Medium Density with a maximum height of 20 m;
Medium High Density with a maximum height of 40 m.
In addition to prescribing the maximum heights, the City OP directs minimum and maximum densities:
Medium Density, maximum 450 bedrooms per hectare;
Medium High Density, minimum 150 bedrooms per hectare and maximum 600 bedrooms per hectare; and
High Density, minimum 150 bedrooms per hectare and maximum 750 bedrooms per hectare.
64As a portion of the Subject Lands are designated as Major Node, the Tribunal references Section 3.6.5 of the City OP dealing with intensification within Nodes and Corridors of which there is a hierarchy: Primary Node (Uptown Waterloo Urban Growth Centre), Major Nodes, Major Corridors, Minor Nodes and Minor Corridors. Intensification is encouraged within Nodes and Corridors. Major Nodes are planned as Medium High to High Density mixed-use areas.
65Section 3.6.6 deals with parking in designated Nodes and Corridors and notes that surface parking will be minimalized in favour of more intensive forms of parking and that underground and structured parking is encouraged within designated Nodes and Corridors.
66Section 3.11 is entitled Urban Design and it begins with this preamble:
Urban design is the design, analysis and process of city building. The City of Waterloo supports and encourages a high standard of urban design for public and private sector projects that contributes toward a memorable, attractive and liveable City- a City designed for people with a strong and coherent sense of place.
Urban design applies to various scales of the City including the site, the block, the neighbourhood, and the City as a whole. It is expected that each scale of development relates to the Urban Design objectives of this Plan and implementing the Urban Design policies and strategies.
67Under the heading General Urban Design Policies, s. 3.11.1 sets out some 28 subsections of which the Tribunal would note that following:
Subsection 1 – Intensification. In decisions to consider intensification, the City of Waterloo shall address the integration, compatibility, built form (including massing) and relationship of new development to existing buildings and to the surrounding neighbourhood character and context, based on the principles of good urban design practice. Policies outlined in this section may be further augmented through supplemental design policies and guidelines.
Subsection 2 – Character. To reinforce and maintain the architectural, visual and thematic integrity of structures, streetscapes, neighbourhoods and planned development by planning and designing new sites, buildings and additions that create and maintain sensitive design in terms of the planned physical context into which such development is located and through the coordination of design elements. The physical design of the public and private realm shall be coordinated to fit within the existing character and context.
Subsection 18 – Compatible Development. Site and building design that complements and enhances the surrounding neighbourhood character and context from a variety of design standards, including building massing, façade design and landscape coordination. The design of sites and buildings shall also minimize adverse impacts to human comfort, and surrounding properties including outdoor lighting, noise, shadowing, wind and snow disposition through a variety of design strategies and performance standards.
Subsection 19 – Human-Scale Development. Development that reinforces human-scale dimensions and proportions through design.
Subsection 29 − Priority. To place a greater emphasis on urban design compared to density.
68The City OP continues on in s. 3.11.2 to deal with urban design within Nodes and Corridors.
69The policy provisions there provide the following:
In addition to the policies set out in Section 3.11.1, the following Urban Design policies apply to the development within Nodes and Corridors and are further implemented through the supplemental guidelines in the Urban Design Manual:
i) Connectivity: design that promotes connectivity with emphasis on pedestrian and non-vehicular safety, convenience and direct convenient access to transit routes, amenities, spaces, building entrances and public streets. Barrier-free access will be encouraged. Building entrances from the public street, particularly along transit routes;
ii) Interest: designs which result in visual interests and interesting and active spaces;
iii) Public Art: development that incorporates public art that contributes to the sense of place, meaning or local context;
iv) Infill Development: design buildings to be in proportion with the lot size and fit harmoniously with the surrounding character and context. The design of the site and building shall be compatible with the surrounding character and context;
v) Building Design: the design of buildings shall contribute to a high quality and coordinated streetscape, character and context. Buildings shall generally have their principle building façade and entrance to face the primary public street particularly along transit routes or transit station areas and be designed with articulated building facades;
vi) Building Form and Massing: locate buildings to establish an urban street enclosure and to frame street intersections. The design and massing of tall buildings (greater than 3 storeys) shall relate to the surrounding context, as well as, to the street proportions (building height to street width ratio) and to human scale dimensions. The design of high rise buildings shall be designed to reduce adverse impacts related to wind, shadowing, visual impacts and to reduce the appearances of bulk through a variety of design and massing strategies; (emphasis added)
vii) Skyline: design tall buildings with interesting roof designs articulating massing and supporting architectural features that create an interesting and recognizable skyline coordinated with other surrounding tall buildings from many views and vantage points. Encourage opportunities to integrate roof top equipment into the roof design and promote a sculpted skyline; (emphasis added)
70The Tribunal will now review the City OP policies as they relate to the Mixed-Use Medium Density Residential designation. In. s. 10.1.4, the Vision provisions provide that this designation is a category in which medium density housing types are the predominant use of land and the aim is to encourage medium density, mixed-use, primarily residential development within Minor Corridors recognizing that properties may also function as a transition from low density areas to medium high and high density areas. In this regard the height and density of uses within the mixed-use medium density designation shall not exceed 450 bedrooms per hectare and the maximum height shall not exceed 20 m.
71In s. 10.1.5 the policy provisions relate to the Mixed-Use Medium High Density Residential designation. There the vision statement says that the intention is to provide opportunities for substantial levels of intensification and that properties are to be developed primarily for residential purposes although complimentary and ancillary uses are also permitted.
72Here the minimum net residential density on the site shall be 150 bedrooms per hectare and the maximum shall not exceed 600 bedrooms per hectare with a height limit of 40 m.
73As 30 and 32 Weber Street North are designated as Mixed-Use Community Commercial, the Tribunal notes in s. 10.2 that in addition to planning for a range of retail office and service commercial uses to be permitted, the City OP also provides for additional uses to be considered as complimentary or ancillary uses including residential, institutional, entertainment and accommodation uses.
74For the Mixed-Use Community Commercial designation it is noted that such designations will be within Major Nodes and that the sites will be of sufficient size to accommodate commercial development that will serve the surrounding community and will contain a range of commercial and office employment uses with residential uses permitted as secondary uses. But to ensure that the lands that are designated will have a strong commercial focus the policies of the plan and the zoning by-law will include provisions to ensure that a minimum amount of commercial space is provided.
75The City OP in s. 10.2.2.4(6)(c) provides that for the lands stated Mixed-Use Community Commercial at the Bridgeport Road East/Weber Street intersection, gross leasable area devoted to primary uses excluding offices and medical clinics may exceed 36,000 sq m to a maximum of 40,000 sq m, recognizing the number of properties and the amount of land included within the designation.
76At s. 10.2.4 Urban Design for Lands Designated Commercial, the City OP provides that commercial development shall be subject to the urban design policies of the plan and implementing urban design guidelines approved by the City.
77Finally, the Tribunal notes that some of the Remaining Lands are brownfields. Section 10.7.2 is entitled Industry Areas in Transition, and there the City OP recognizes that some areas in the City will transition from industrial areas usually to mixed-use, higher density areas. Schedule I Industrial Transition Areas indicates that areas throughout the City that were designated Industrial and/or zoned to permit Industrial uses prior to the approval of the City OP and through designations now applied in the City OP are contemplated to permit a wider mix of residential and other land uses but that the City will require the completion of a Record of Site Condition acknowledged by the Ministry of the Environment, Conservation and Parks and apply a holding provision until the Record of Site Condition has been issued.
ZONING
78The Tribunal will now turn to the City Zoning Provisions as found in the CZB.
79As it is primarily the podium provisions, tower separations, and height regulations etc. that are impugned, the Tribunal has attached herewith as Attachment 1, Tables 7O, 7P, and 8F for ease of reference. These provisions are City-wide in application.
80As the chronological extracts indicate, in June of 2012, the City passed Zoning By-law No. 2012-070, (“Northdale Zoning”) to control the land use development for the lands bounded by King Street North, Columbia Street West, Philip Street and University Avenue West, commonly referred to as “Northdale/Northdale Lands”. These lands are generally in the vicinity of the University of Waterloo and Wilfred Laurier University.
81In the Northdale Zoning, there are similar zoning regulations for podiums, tower separations, height, etc. For example, the Northdale Mixed-Use (“NMU”) and Northdale Commercial (“NC”) zones require a minimum building step back of 3.0 m above podium, provide minimum and maximum building heights, provide minimum and maximum density provisions, provide a maximum podium height of 20 m, provide a maximum tower footprint above the 8th storey of 800 sq m, provide a minimum tower separation distance of 25 m from the tower on the same lot, and 12.5 m from an interior lot line or rear line, and a maximum horizontal tower dimension of 35 m.
INTENSIFICATION TARGETS
82Exhibit 1, Tab 41 at Page 2197 provides the percent of residential units in Built -Up Areas for the years 2006 to 2020 from the Region.
83For the City they are as follows:
2006 68%
2007 58%
2008 68%
2009 74%
2010 94%
2011 72%
2012 82%
2013 75%
2014 83%
2015 74%
2016 79%
2017 67%
2018 68%
2019 90% and
2020 88%
HEARING
84At the hearing the Tribunal heard from four expert witnesses.
85On behalf of the Appellant, the Tribunal heard from Andrew Bousfield, Architect and Dan Currie, land use planner. On behalf of the City the Tribunal heard from Joel Cotter, Director of Planning and City Planner for the City, and Max Kerrigan, land use planner and urban designer for the City.
86In support of the Appellant’s position Mr. Bousfield provided a series of development schemes related at first to 115 and 133 Bridgeport Road East, then a standalone with regard to the commercial land, then a hypothetical site, and finally a comprehensive development scheme that entailed all of the Remaining Lands.
87The essence of Mr. Bousfield’s visual evidence was that as shown on Scheme 1 (which would be compliant with the CZB) this development scheme would result in a calculation of provided bedrooms per hectare of 351 whereas the required bedrooms per hectare was 550, which he calculated to only be 61% of the maximum.
88Using the same lands, via Scheme 2 (which would be compliant save and except for height at 21 storeys), the provided bedrooms per hectare was 549 versus the required bedrooms per hectare of 550 which was virtually 100% efficient but required 21 storeys as opposed to the 12 storeys that are allowed.
89Scheme 3 provided the compliant 12 storey height but with no podiums, and no separation between buildings B and C along Royal Street, and therefore having buildings (well) in excess of the maximum horizontal tower dimension of 40 metres. While being well in excess of the CZB regulation for maximum distance, it would provide 536 bedrooms per hectare in contrast to the required 550 bedrooms per hectare: an efficiency of about 97%.
90Scheme 4B1 utilizing all of the Remaining Lands and with a 4 storey podium but with building heights of 21 storeys fronting onto Bridgeport Road East, 14 storeys fronting onto Weber Street North, and 21 storeys fronting onto Royal Street, Mr. Bousfield’s evidence was that the provided bedrooms per hectare would be 562 versus the required bedrooms per hectare of 562, resulting in100% efficiency.
91With regard to Scheme 4C1, this entailed essentially one continuous structure (no separations), utilizing a 4 storey podium and at a maximum height of 12 storeys except for that portion along Royal Street of 6 storeys, 565 bedrooms per hectare which would have been provided over the required bedrooms of 562.
92Mr. Bousfield prepared a hypothetical example with a template using a parcel of land with approximately 63 metres of frontage and a depth of 57 metres with a 12 storey height and a 4 storey podium and one level of underground parking and his calculation provided bedrooms per hectare at 495 versus the required bedrooms per hectare of 600 and thus was an efficiency of only 83%.
93Mr. Bousfield testified that in his view and the photographs that were found in his Exhibit 4A were supportive of the fact that the implementation of the impugned CZB regulations as they related to towers and podium would result in the CZB preventing the achievement of the maximum densities permitted in RMU and C1 zone and it would yield densities between 60% and 70% of the maximum, and that the podium and tower regulations that are in the impugned portions of the CZB should be more appropriately considered through urban design guidelines and evaluated through the site plan control process.
94It was his professional opinion that the impugned CZB regulations are too restrictive and limiting in the amount of building density that they permit when applied to actual site design, that the regulations restrict design creativity and severely limit design professionals and that matters of architectural and urban design are best left outside the zoning by-law to be resolved through urban design guidelines and the site plan process.
95In cross-examination Mr. Bousfield agreed that there was no actual application filed with the City concerning the Remaining Lands, that he had modelled his schemes with surface parking and only in one scheme (the hypothetical scheme not involving the Remaining Lands) did he provide any underground parking and then it was only one level.
96Mr. Currie then testified on behalf of the Appellant. He opined that the purpose of the impugned CZB regulations is to require tall buildings to be built with a tower and podium form and prohibit what is known as slab towers. He stated the result of the new regulations is that they require a smaller building footprint and effectively prohibit the ability to achieve the plan density of a site when combined with the limitations on building height.
97Mr. Currie opined that the City has a requirement to ensure it can accommodate its share of the growth for the Region, that Major Local Nodes are planned to be developed to accommodate additional population and/or employment growth, that the new Growth Plan will in the future require an intensification rate of 50% and relying on the evidence of Mr. Bousfield, he testified that the maximum density permitted within an RMU-40 zone (i.e. 600 bedrooms per hectare) cannot be achieved by a building that conforms to the CZB regulations and complies with the 12 storey and 40 m height limit.
98He further testified that, based on his discussions with Mr. Bousfield, the tower podium regulations reduce the maximum density of sites by as much as 30% but that number is dependent on how parking is handled. He noted that if parking can be provided underground then higher density can be achieved but there are many places in the City that, due to high water tables, all or some of the required parking could not be placed underground and his understanding was that the Remaining Lands fell into this category.
99Mr. Currie stated that the impugned regulations from the CZB result in inefficient development patterns which would not be consistent with the PPS and would not optimize the long term availability of land and that the PPS requires development standards such as zoning by-laws to facilitate intensification and that in his opinion the impugned regulations limit the intensification of sites within designated intensification areas and therefore are not consistent with the PPS. He further opined with regard to the Growth Plan that the impugned provisions of the CZB restrict the ability to achieve Plan density and result in underdevelopment and therefore do not optimize the infrastructure and do not result in an appropriate scale of development in strategic growth areas and therefore do not conform to the Growth Plan.
100Turning to the ROP he was of the opinion that the impugned provisions of the CZB do not allow for the full achievement of the plan density and as such do not promote the development of a brownfield site as provided in policy 2g and 9.
101Further, Mr. Currie opined that the impugned portions of the CZB do not conform to the City OP because: the City must ensure land is efficiently used to ensure growth can be accommodated, it conflicts with the residential intensification policy and limits the City’s ability to achieve the intensification target of 45%, it restricts the ability to achieve the maximum density of the Medium High Density designated areas, and it conflicts with the urban design policies which direct that there are a variety of design and massing strategies that could be appropriate to address visual impacts of tall buildings, and expressed a similar opinion with regard to the Mixed-Use Community Commercial C1 zone.
102Mr. Currie was also of the view that the City did not conduct an appropriate analysis to properly assess the impacts of the regulations that are found in the CZB. He submitted that the tower and podium regulations could be more appropriately considered through urban design guidelines and evaluated through the site plan process.
103In his summary and conclusion Mr. Currie indicated that the impugned provisions of the CZB result in an inability for sites within intensification areas to achieve the maximum permitted density. It was his opinion that this is in conflict with both the intent and the policies of the City OP; that the CZB is in conflict with the Growth Plan and the PPS and the ROP. He recommended that the remedy is to either: a) exempt the development of the Remaining Lands from the tower and podium regulations; or b) permit greater heights to allow maximum density to be achieved.
104The Tribunal heard from Joel Cotter, the Director of Planning for the City. Mr. Cotter testified that the review of the CZB had taken place at the same time the Tribunal had under consideration the Avila case referenced above. He noted that in Avila, Mr. Bousfield and land use planners from Mr. Currie’s firm had testified before the Tribunal with regard to the site plan appeal.
105The Tribunal, in its Avila decision of September 30, 2019, dismissed the appeal and did not approve the site plan. As noted above it was subject to a s. 35 Review which was finalized by the then Associate Chair’s decision on January 16, 2020, which is found at Exhibit 1D, Tab 40. The then Associate Chair found that the Request had established a convincing and compelling case that there are significant errors of jurisdiction in law with regard to the Tribunal decision and she exercised her discretion to rescind the decision and order a rehearing.
106As part of her decision she found the following:
The Request asserts that the Tribunal fundamentally misapplied the provisions of site plan control authorized by section 41 of the Planning Act and in so doing, undermined the certainty of the permissions for the building envelope authorized in the City’s zoning by-law. As noted above, the Tribunal found there is “no reason why” site plan control should not be used to limit massing, over and above zoning standards, to address the characteristics of a specific site (paragraph 23). In my view, it was an error for the Tribunal to fail to recognize that site plan control is not open-ended, but it must be understood within the context of other planning instruments authorized by the Planning Act.
Site plan control has been described by the Court of Appeal as “the fine tuning of zoning by-laws”. (See High-Rise Structures Inc. vs. Scarborough City, 1992 CanLII 7739 (ON CA), 10 OR 3d 299). It is a municipal planning instrument that is distinct from an official plan or zoning by-law. Site plan control serves to implement the approved zoning on a site by ensuring that the proposed development is well designed, functional and a good fit with the existing land uses. The Ontario Municipal Board, in a previous decision has referred to site plan control as “matters of the micro managements of the site” given that the land use and performance standards had been established by the official plan and zoning by-laws. (See 13416065 Ontario Ltd. v. Toronto (City), 47 OMBR 36, para 5).
I agree with the statement in the Request that site plan control cannot be applied to impose restrictions on a development proposal for matters that are properly regulated by a zoning by-law. For this reason, I conclude that the Tribunal erred when it concluded that site plan control may be used to limit massing over and above prescribed zoning standards. The approach taken by the Tribunal will undermine the certainty to arise from land use permissions accorded in a zoning by-law. The case law presented in the Request supports this proposition. The authorities referenced in the City’s response do not rebut this proposition. The Decision does not approach site plan control provisions as “the fine tuning of zoning by-laws”, and thus, does not abide by the jurisprudence of the Ontario Court of Appeal.
107Mr. Cotter further testified that the matter before this Tribunal is the appeal of the CZB and not a site specific application, and in fact there was no application before either the City or the Tribunal. Turning to the Appellant’s evidence, he noted that he had reviewed the development schemes prepared by Mr. Bousfield and observed the lack of any underground parking for any of the schemes relating to the Remaining Lands.
108He pointed out that he had reviewed the October 24, 2016 Geotechnical Review by Chung and Vander Doelen Engineering Ltd. with regard to 115 and133 Bridgeport Road East, Waterloo (which the Appellant had provided in Exhibit 1D, Tab 35). Prior to the production of the Joint Document Book, he said that this geotechnical review had not been seen by the City. While Mr. Bousfield had provided no underground parking in any of his schemes for the Remaining Lands, Mr. Cotter pointed to Page 2085 where the ground water condition was noted and ground water is considered to lie at depths between 1.4 and 2.2 metres below existing grades corresponding to elevations between 320.0 plus or minus and 320.6 plus or minus metres apparently sufficient for at least one level of underground parking.
109Under Discussion and Recommendations 6.1, the geotechnical review states the following:
The proposed redevelopment involves the construction of two 13-storey high apartment buildings, one fronting on Bridgeport Road East to the north, building A, and the other fronting onto Royal Street to the south, building B. The balance of the site will essentially be covered by a 4-storey above ground parking structure. The finished floor levels of the 13-storey apartment building had been established at elevation 324.45 metres and the parking structure at 324.35 metres.
An alternative parking option being considered is three levels of underground parking under the apartment towers with additional surface parking between the apartment buildings.
110Further, with regard to the three levels of underground parking the geotechnical review states:
… the results of the bore holes indicate that the native compact to dense fine granular deposits in the underlying stiff to very stiff silty clay till are suitable to support the proposed 13-storey apartment buildings and three levels of underground parking using conventional spread and strip footing foundations or a wrap foundation.
111Moreover from Mr. Cotter’s Reply Witness Statement, Exhibit 5B, he noted that in proximity to the Subject Lands there is underground parking at 125 Lincoln Road, underground parking at 130-140 Lincoln Road, the place of worship at 145 Lincoln Road has a partial basement level, at 198 Royal Street there is below grade parking, at 200 Royal Street there is below grade parking, and many of the houses on Royal Street contain basements including 181 Royal Street and the single detached dwellings at 125, 127, 129 and 131 Bridgeport Road East.
112Thus, his evidence was that had any underground parking been considered (in this area where it appears that underground parking is feasible), there would have been a notable increased development potential over what was portrayed in Mr. Bousfield’s various schemes.
113Mr. Cotter noted that the impugned CZB for the MRU 40 zone sets out a density range and that, contrary to the evidence of Mr. Currie, there is no provincial policy statement directive or growth plan directive to maximize the number of units but that every site is different and has different constraints.
114The Tribunal heard the urban design evidence of Max Kerrigan who has previously been employed by the City of Hamilton, and in that capacity was familiar with the City of Hamilton Zoning By-law, having some similar zoning provisions as are at issue here, extracts of which can be found at Exhibit 14.
115It was Mr. Kerrigan’s evidence that nodes and corridors are typically surrounded by low-rise residential neighbourhoods, that height and density are important components to efficiently use land and infrastructure, that height and density affect how people feel both mentally and physically, that smaller floor space footprints result in shadows that move more quickly, and that the impugned urban design regulations avoid negative impacts of tall buildings including the canyon effect, sheer street walls, and loss of sky views, and that if buildings are not appropriately massed and adequately spaced, that they can create uncomfortable public realms, that there are issues with regard to shadowing and restricted access to sunlight, there are wind impacts, there can be issues of poor fit and compatibility with regard to transition with adjacent buildings in the public realm, and issues with regard to overlook and loss of privacy when buildings are constructed too close to each other.
COMMENTARY
116It is abundantly clear that the Remaining Lands are prime candidates for redevelopment and intensification due to their locational attributes, land use designations, and underutilized status.
117However, the Tribunal would first highlight that this is an appeal against a Comprehensive Zoning By-law whose application is City-wide, and not an appeal of a site specific application and it is a hearing that attracted no other interested parties, despite dealing with a Comprehensive Zoning By-law.
118The Tribunal observes that Mr. Bousfield, whether at instructions from his client or based on his opinion of development economics, did not provide any scheme with underground parking for the Remaining Lands. However, it is apparent that other construction in the immediate area does have underground parking and that from the Appellant’s own geotechnical review, it appears that minimally one level of underground parking is achievable and possibly even three levels. Hence the Tribunal places little weight on Mr. Bousfield’s conclusions on the efficiency of the impugned CZB regulations.
119The Tribunal also notes that Mr. Bousfield seems to have proceeded from an assumption that the maximum densities set out in the zoning range were the “required” densities and not the top of a range that is set out in the CZB.
120The Tribunal finds that Mr. Currie in his Witness Statement and in his oral evidence paid scant, if any heed, to the statutory provisions in s. 34 of the Planning Act that authorize a municipality to pass by-laws for regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures.
121The Tribunal perceives that the City has had no difficulty whatsoever achieving the intensification rate since 2006.
122The Tribunal discerns that the City in its Official Plan policies has placed a high priority on urban design, as the City knows that its growth is going to come through intensification and thus the urban design policies are vital to make sure that the new growth supports a memorable, attractive and liveable city with compact development at a human scale level and with building design that compliments and enhances the surrounding neighbourhood character and context.
123And to ensure that policy objective is clearly understood, the City adopted OPA 22 which was approved on June 11, 2019, as an amendment to s. 3.11.1 General Urban Design Policies to add number 29: “Priority: To place a greater emphasis on urban design compared to density.” That provision is in force and of effect.
124The Tribunal bears in mind that the City has, since 2012, had podium/tower regulations and tower separation distances contained within the Northdale Zoning.
125Mr. Cotter testified that the impugned CZB regulations came out of a robust public consultation exercise where residents were asked to identify buildings and structures they liked and disliked, and the “canyon” effect was identified as one that was disliked whereas the podium and tower built forms as found in Northdale were identified as having positive features.
126In the Northdale Zoning, the minimum tower setback above a podium is 3 m and that is found within the CZB. In the Northdale Zoning: the minimum tower separation to an interior lot line is 12.5 m whereas in the CZB it is 11 m; the minimum tower separation between towers on the same lot is 25 m and in the CZB it is 22 m; the maximum tower footprint is 800 sq m and in the CZB it is 1,000 sq m; and the maximum horizontal tower dimension is 35 m and in the CZB it is 40 m. Thus, compared to the Northdale Zoning, the impugned regulations of the CZB are all less restrictive.
FINDINGS
127This is a decision to be read with the local context in mind.
128To the Tribunal, the evidence is convincing and clear. The Tribunal prefers the evidence of the City witnesses.
129There can be no doubt that the City has the statutory right to establish zoning by-law regulations that deal with height, bulk, location, size, floor area, spacing, character and use of buildings.
130And the City has done this previously in the Northdale Zoning since 2012.
131The evidence is clear that the City is in full compliance with regard to its intensification target (as allocated by the Region) required by the Growth Plan and will, in all likelihood, continue to be considerably in exceedance of the new Growth Plan target.
132The Appellant’s experts all appear to be under the misguided opinion that the PPS and the Growth Plan direct that the maximum zoning provisions are to be obtained in all cases.
133In fact, neither the PPS nor the Growth Plan address maximizing. Rather the PPS and the Growth Plan speak to optimizing, and the difference between the two is, to the Tribunal, the result of good urban design.
134The Tribunal finds that the City has crafted its City OP “to look inward and to grow upward”. To do that, intensification is required, and the City is seeking to ensure that the intensification is well designed and at a human scale. The City OP places a high value on urban design and the City’s experience in Northdale has apparently resulted in good urban design, and having experienced the Avila case (that was going on during the same time that the zoning by-law review was occurring), the City acted lawfully and reasonably to again avail itself of the statutory power in s. 34 of the PA and to implement the impugned regulations into its zoning by-law in full conformity with the City OP, the ROP, the PPS, and the Growth Plan.
135In this regard, the Tribunal observes that the PPS specifically recognizes the diversity of Ontario and that local context is important, and that one of the Growth Plan’s Plan Guiding Principles is to provide for different approaches to manage growth that recognize the diversity of communities in the Greater Golden Horseshoe.
136In fact, the Growth Plan states that municipalities should use all the relevant legislative and regulatory tools and other strategies to plan for a variety of heights, densities and other elements of urban design to achieve the desired urban form and the minimum intensification and density targets.
137This City, unlike some other municipalities, has very little green field land available for growth and development, and thus intensification must occur in the Built-Up Area of the City. Seeking to provide for that intensification, the City has also made policy provisions in the City OP that provide for good urban design. The CZB and its impugned regulations are intended to implement those policy provisions in an enforceable fashion to achieve the urban design envisioned by the City.
138The Tribunal further observes that the Planning Act identifies one of its purposes is to recognize the decision-making authority and accountability of municipal councils in planning, and that s. 2 of the PA identifies one of the Provincial interests as being the promotion of a built form that is well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.
139Further in s. 2.1 the Planning Act requires that the Tribunal when making a planning decision shall have regard to the decision made by the municipal council.
140To the Tribunal, this City is in full compliance with its mandated intensification targets, and aware of its need to continue to intensify. In so doing, the City also has the objective to make its municipality a desirable and liveable community to live and work in, and so it placed a high priority on urban design as found in the City OP. That high priority on urban design is to be implemented through the CZB and its (impugned) provisions.
141In summary the Tribunal finds that the City’s impugned CZB regulations are authorized by the Planning Act, implement the purposes of the PA in terms of providing for a land use planning system that is led by provincial policy and recognizes the decision making authority and accountability of municipal councils in planning, takes into account the local conditions as referenced in the PPS and the Growth Plan, provides for an appropriate range of minimum and maximum densities, is in conformity with the ROP, is in conformity with the City OP, and will result in good land use planning.
142The appeal is dismissed.
“Blair S. Taylor”
BLAIR S. TAYLOR
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.