SO Development Inc. v. Oshawa (City), 2022 CanLII 103984

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 04, 2022

CASE NO(S).: OLT-22-002197 (Formerly PL180364)

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

Applicant and Appellant: SO Development Inc.

Subject: Application to amend Zoning By-law No. 60-94 - Refusal or neglect of City of Oshawa to make a decision

Existing Zoning: UR (Urban Reserve)

Proposed Zoning: Appropriate Residential Zones

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipality File No.: Z-2016-15

OLT Case No.: OLT-22-002197

Legacy Case No.: PL180364

OLT Lead Case No.: OLT-22-002197

Legacy Lead Case No.: PL180364

OLT Case Name: SO Development Inc. v. Oshawa (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: SO Development Inc.

Subject: Proposed Plan of Subdivision - Failure of City of Oshawa to make a decision

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipality File No.: S-O-2016-15

OLT Case No.: OLT-22-002202

Legacy Case No.: PL180365

OLT Lead Case No.: OLT-22-002197

Legacy Lead Case No.: PL180364

Heard: August 29, 2022 – September 23, 2022, by video hearing

APPEARANCES:

Parties

Counsel

SO Development Inc. (“Applicant/Appellant”)

M. McDermid

City of Oshawa (“City”)

A. Kosnick, T. Duncan

Region of Durham (“Region”)

K. Ryan

INTERIM DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is the Phase 2 appeal for a proposed amendment to the City’s Zoning By-law No. 60-94 (“ZBA”) and for a proposed Draft Plan of Subdivision (“PoS”). The appeal results from the failure of the City to make a decision on the ZBA and the PoS within the legislated timeframes pursuant to s. 34(11) and s. 51(34) of the Planning Act (“Act”).

The Hearing

2On August 11, 2021, the Tribunal issued a decision which made the determination that based on the results of the Phase 1 Hearing, the merits of a continuation of the Applications to a Phase 2 Hearing would be warranted.

3The Tribunal was advised that the Phase 2 Issues List forming part of the Procedural Order (“PO”) issued on February 19, 2019, had been revised to reflect issues resolved on consent, prior to the hearing.

4At the onset of the hearing, Mr. Ryan, counsel, for the Region of Durham advised that the issues of concern to the Region had been resolved. He indicated that unless there were questions of the Region it would not need to participate further.

5The Parties informed the Tribunal that the issues pertaining to the Stormwater, Servicing and Roads (Issues 1, 2, 3), Open Space (Issues 15, and 16) and Land Use Planning (Issues 4 (a), (c), (d) and (e)) had been resolved and as such, it would be unnecessary to have the engineering witnesses appear before the Tribunal.

6The revised Issues List received August 5, 2022, governed the presentation of the evidence in the hearing of this Phase 2 portion of the appeals.

7The Tribunal heard from six witnesses on behalf of the Parties. All witnesses were qualified to provide expert evidence in their respective fields.

8The Applicant provided the following Affidavits in support of its Applications:

1. Ryan Guetter, Factual, Non-Opinion Overview Evidence
2. Bryn Barron, Landscape Architecture
3. J. Christopher Ellingwood, B.E.S. Ecology, Terrestrial and Wetland Biology

9The City provided the following Affidavits in support of their objections to the Applications:

1. Kathy Luttrell, Ecology, CLOCA
2. Mitchell Wiskel, Landscape Architecture and Parks Development
3. David Sappleton, Land Use Planning

Description of Subject Lands

10The Subject Lands are referred to as “Block ‘B’”, also historically referred to in some instances as the “Maurac lands”, and are located in the south-west region of the City, in Ward 5, south of Renaissance Drive and west of Park Road South legally described as Parts of Lots 13 and 14, Broken Front Concession, Part 1 of Plan 40R22187. The Subject Lands are vacant, comprising a total area of approximately 10.3593 hectares (“ha”) (25.59 acres) with 221.1 metres (“m”) of frontage along Park Road South to the east, 529.779 m of frontage abutting City-owned open space lands to the south and 113.105 m of frontage abutting City-owned open space lands to the west.

NEIGHBOURHOOD CONTEXT

11The Proposed Development is located on the southern end of the City.

12Existing low-rise residential neighbourhoods abut the Subject Lands to the north, inclusive of a 22-lot plan of subdivision, located south of Renaissance Drive, that was approved by City Council in 2006. The Proposed Development includes north-south road connections to the dead-end stubs of three separate local roads to the north consisting of Mayport Drive, Seabring Street and Tradewinds Street that link Renaissance Drive to the north lot line of the Subject Lands.

13The east lot line of the Subject Lands abuts Park Road South, which is a north south collector road. The southeast corner of the Subject Lands is adjacent to the intersection of Park Road South (south terminus) and Stone Street (west terminus), and a portion of the Waterfront Trail also connects to this intersection. Residential neighbourhood areas are located east of Park Road South.

14The south lot line of the Subject Lands abuts a landscaped waterfront area adjacent to Lake Ontario, consisting of public open space lands that accommodate passive recreational uses including the Lake Ontario Waterfront Trail. The Trail is a publicly accessible pedestrian walkway that connects a series of parks and conservation areas along the Lake. These lands are regulated by the Central Lake Ontario Conservation Authority (“CLOCA”) and are owned by the City as public open space.

15The southwest boundary of the Subject Lands is adjacent to public open space lands that primarily accommodate passive recreational uses, including a local north south trail that connects the Lake Ontario Waterfront Trail to Renaissance Park.

THE DEVELOPMENT PROPOSAL

16The Tribunal was brought through a non-controversial, factual overview of the evidence to date, the revisions made to the PoS and the changes to the list of conditions by Mr. Guetter. He noted that the Applicant was no longer requesting a sales centre be placed on the site. The Tribunal was informed there had been a change to the number of requested dwellings and type of dwellings with the removal of the semi-detached dwellings and the creation of solely single-detached dwellings.

17The Tribunal heard that through dialogue with the Region, CLOCA and the City, adjustments had been made to the Park and Open Space, resulting in an updated Zoning By-law Amendment and PoS including:

• Relocation of the parkland to the eastern portion of the development site;
• Apply the Residential R1-E zone for the proposed single detached dwellings;
• An introduction of a plan reflecting 165 single-detached lots with varied widths.

18The development area has been determined as:

• Residential Lots: 5.454 hectares; and,
• Roads: 2.232 hectares.
• Park: 0.550 hectares; and, Wetland, including a 3-metre Buffer, Open Space, and Bio-retention Facility: 2.122 hectares

19The Tribunal heard that the Current Applications propose a total of 2.672 ha of parkland and open space area, which is an increase from the 2.486 ha as presented in the Phase 1 Hearing.

20As a result of relocating the park to the east side of the Subject Lands there has been an additional eight single detached dwellings added south of Lot 10.

21The Tribunal heard that the Phasing Plan, dated March 29, 2022, proposes three phases:

• Phase 1A: Plantings in the Wetland/Open Space Block 167 and development of Park Block and the construction of Street A.
• Phase 1B: Lots 1-86, 90-94, and 112-116 and the local roads which they front onto, including Mayport Drive, Seabring Street and Tradewinds Street.
• Phase 2: Lots 87-89, 95-111, and 117-165 and Street ‘B’ and Street ‘C’.

22It was explained that the Phasing Plan proposes that Phase 1A and 1B would be cleared concurrently, then earthworks, wetland compensation and butterfly habitat plantings within Phase 1A would be completed, allowing 18 months for the Monarch habitat to establish prior to the clearing of Phase 2.

KEY ISSUES

23The Tribunal noted that further to and in combination with the issues remaining on the Issues List, the following key issues were discussed at length and as such the Tribunal in the disposition of this decision will include findings made through the evidence provided.

1. Should there be Monarch Butterfly habitat included in Park Block 166 and if so, should that habitat count as parkland dedication?
2. Is the proposed Phasing Plan sufficient to ensure the protection of the Monarch Butterfly habitat on the Subject Site?
3. Should the ZBA contain the inclusion of a Holding symbol, and
4. Consideration of the Draft Plan Conditions

24As the Tribunal considers the Appeal, it must determine whether the ZBL and PoS is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms to applicable provincial growth plans and the Region of Durham Official Plan (“ROP”) and the City’s Official Plan (“OOP”), and represents good planning in the public interest.

PLANNING EVIDENCE

Planning Act Criteria

25The Tribunal was brought to the relevant portions of section 2 of the Planning Act which state:

(a) the protection of ecological systems, including natural areas, features and functions;

(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;

26The relevant portions of section 51(24) of the Planning Act states:

Criteria

In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

27As per s. 2 (a) and (j) of the Planning Act, the Tribunal heard that the Applicant proposes ecological mitigation measures, inclusive of enhancement of existing on-site habitat features and new linkages to ecological areas adjacent to the Subject Lands which are consistent with the compensation plan and phasing plan discussed in the Phase 1 Hearing with an emphasis on maintaining as much monarch nectaring and roosting habitat on the Subject Lands.

28The Tribunal heard that the Proposal is for 2.672 ha of open space and park area for recreation and butterfly habitat uses have been designed to include active play structures (requested by the City) with the inclusion of the walking trails, benches, and butterfly habitat, which provides for an adequate distribution of health, social, and recreational facilities within the proposed development.

29The Applicant has provided access to the Waterfront Trail by means of an accessible trail connection from Street ‘A’ at the southern limit of proposed Seabring Street with an optional set of stairs being added as a secondary connection for pedestrians heading west on the Waterfront Trail.

Durham Region Official Plan (“DROP”)

30Mr. Guetter provided a fulsome account of each of the enumerated applicable criteria of the DROP, together with his commentary through the factual overview. The factual basis identified those issues outlined by the Experts in support of their opinion that the development proposal is consistent with the Region’s OP. Those issues of specific interest to the Region have been resolved.

The City of Oshawa Official Plan (October 2016) (the “OOP”)

Parkland

31Mr. Guetter stated that the proposed intensification of lands designated as “Major Urban Area” and “Residential” that will implement the “Residential” designation of the OOP by proposing a subdivision of 165 residential dwelling units. The proposed PoS is integrated into adjacent plans of subdivision in the area and does not create any conflicts with lots, blocks or road connections.

32The City stated concerns with the inclusion of the Significant Wildlife Habitat (“SWH”) within the park dedication noting natural areas and ecological systems should be contiguous with other natural areas and ecological systems. Through cross examination, Ms. Luttrell agreed that SWH can be conserved and improved by ensuring that portions of the Park Block which are to be considered as SWH, be placed in an area that will not be subject to ongoing disturbance from high human activity which in her opinion is unlikely to be productive for Monarchs.

33Mr. Sappleton raised concerns with the lack of pedestrian access to public trails. Specifically, the location of the park does not provide convenient accessible paths of travel to the Waterfront Trail or Renaissance Park, and instead forces individuals with mobility challenges and mobility devices to take longer circuitous and possibly tiring routes. It was his opinion that the proposed plan disregards the needs of persons with mobility challenges with respect to access from the proposed plan to Renaissance Park and the Waterfront Trail.

34Contained in the Agreed Statement of Facts, the Tribunal heard as per the Phase 1 decision, the use of 2.468 ha of the site will be retained as Open Space and Recreation areas located along the Lake Ontario shoreline.

35Mr. Guetter opined that Policy 2.6.3.2 and Policy 2.6.3.3 of Section 2.6 of the Parkland Dedication By-law, provides for parkland to be calculated as the greater of 1 ha per 300 dwelling units or 5% of land area results in a requirement for 0.550 ha of parkland based on the proposed 165 lots, which is provided in the proposed Block 166. The Tribunal heard that the Applications provide the required parkland dedication, in the amount of 0.550 ha, in a location preferred by the City (Exhibit 1, Tab 79).

36The Tribunal heard that the park provides for sufficient space for both active and passive recreational uses, similar to Renaissance Park, such as walkways, benches and shaded structures which is in accordance with the desired function of Neighbourhood Parks, parkettes and other small parks as identified in Table 4 of the OOP. This provides for a continuation of the waterfront open space area and that the proposed Park Block 166 provides for the full statutory parkland dedication requirement and no additional cash-in-lieu is required.

37The Open Space Plan includes all of the City’s requested amenities. As Mr. Barron testified, and Mr. Wiskel agreed, the active play area and splash pad area are larger than that anticipated in the City’s Park Design Standards, and their reduction in size would provide for even greater lawn areas. These lawn areas can be further expanded, with additional future programming flexibility introduced, if the splash pad is eliminated, or at least downgraded to a cooling station, more in line with comparable City park examples.

38Mr. Guetter informed the Tribunal that the parkland and open space system provides linkages to the Waterfront Trail at a number of points through walkways at the south end of the proposed Street “C” and an accessible walkway from Street “A”. Further, it was the City and CLOCA, who requested the parkland include an active park area with seating areas and a shade structure which have now been addressed through Park Block 166.

39Mr. Barron explained that the following concerns which were raised by City staff and have now been addressed through the revised Application. The proposed butterfly habitat within the Park Block 166 has been modified to include areas of turfgrass along pathways and adjacent to the play areas to avoid conflicts with park users and to facilitate maintenance. A 1.5 m high chain link fencing has been included along proposed residential lots which abut the proposed Parkland and Open Space Blocks.

40He opined that roosting trees in the turf areas and, butterfly “gardens” and naturalized wildflower meadows can be integrated in peripheral areas of the Park and in doing so, will provide for sufficient land dedicated to SWH. Interpretive signage would educate park users as well as maintenance staff regarding the importance of protecting butterfly habitat, the incorporation of pollinator and fall nectar producing species into the urban landscape.

41The Tribunal was informed that the use of material such as stone and fencing would assist mitigating human interference from disturbing the SWH as per Ms. Luttrell’s concerns regarding the area being trampled by humans.

42In contrast, Mr. Wiskel presented a very different side.

43He opined that to include the SWH, nectaring and roosting areas as part of the Parkland dedication the City would be “handcuffed” into an operations expense of maintaining the area.

44The Tribunal was taken to the definitions of the various types of parks outline in the OOP and was informed that it was the City who determines the type of park and its contents. Mr. Wiskel informed the Tribunal that in the past, a development dedicated park land had naturalized areas removed because it was “too much trouble and money to maintain”.

45Ms. Luttrell stated there are differences in a City level park which has a different maintenance crew, is public centric and is maintained at a higher standard. She raised concerns over the Park Block being situated in an area of high use, on the outside perimeter of an active park block and nestled between two roads and residences.

46Mr. Wiskel expressed the lack of staff with the expertise to manage the area in an appropriate manner as a dedicated SWH for migrating butterflies. He resisted the idea of providing information to potential homeowners abutting the SWH would be sufficient enough to mitigate complaints about weediness which may arise in the future along with concerns regarding safety, as sight lines could be impacted by framing the park block with naturalized vegetation that could grow quite tall.

47The Tribunal heard that the City would be constrained to change or increase activity in the park due to its size should the SWH be contained within the park land area. Mr. Wiskel stated that much can and does change over time, including City priorities and positions, as well as growth within the city. The City submitted that it must adapt to these changes. By imposing SWH on the parkland, it would impact on the City’s ability to adapt to changes in the future.

48The City maintained that the natural heritage features should be removed from the park block and consolidated with Open Space Block 167. The City is fine with the park size and shape on the basis that the lands are given to the City as a sodded park with proper grading and drainage facilities, and fenced along the north side, with the City responsible for constructing the park. In his view, the fact that the Applicant’s plans are not providing the City with unencumbered suitable land for park purposes remains the main issue.

49Ms. Luttrell testified that contiguousness should be maximized, and that all SWH should be in one location, and ideally added to Block 167. With the current plan, there are fragments of the habitat in the park. She stated large patches of SWH should be the goal.

50The Tribunal heard it would be a capital cost to invest in educational signage and an operating cost to maintain. It was noted that from a city perspective signage was not planned for this park land.

51From the City’s perspective the proposed butterfly habitat would not satisfy the sodding component of the City’s policies related to base park obligations for subdividers unless the Developer agrees to “front-end” the Park construction, in which case the Base Park obligations would not apply.

Phasing Plan

52Through Mr. Ellingwood’s testimony it was heard that the proposed Phasing Plan, while similar to that presented in Phase 1, will now provide a period of 18 months and two growing seasons between the plantings in Phase 1A (Spring 2023) and the removal of existing habitat in Phase 2 (late Fall 2024).

53The techniques described by Mr. Ellingwood would allow for the retention of a larger area of the existing habitat on the Phase 1A lands and reduce the amount of new habitat that is being created through seeding only.

54Mr. Ellingwood, based on his findings and on his experience on numerous restoration projects and use of this specific seed mix, was confident that flowering plants will be produced within the first growing season, with some of the species flowering in the second growing season. Combined with the existing habitat areas in Phase 1A and Phase 2, all of which will be available through the first and second migration seasons, Mr. Ellingwood opined that the planting and Phasing Plan would provide for suitable habitat throughout the entire development project.

55He stated that even in what Ms. Luttrell called a “realistic or conservative case”, whereby the seeded only areas do not flower until summer of 2025, it would still provide fully functioning Phase 1A habitat in time for the Fall 2025 Monarch migration season. This corresponds to the first migration season when the Phase 2 habitat is no longer available. The actual result of the Phasing Plan is that the time between Phase 1A plantings and the first migration season when Phase 2 is no longer available, is actually 2.5 years and will, in fact, correspond well with Ms. Luttrell’s conservative timing.

56Ms. Luttrell raised concerns with the proposed Phasing Plan, but confirmed in cross-examination that they related only to the timing in respect of the seeding areas which are comprised of 0.6 ha of the total Phase 1A habitat.

57Ms. Luttrell’s main concerns related to the need for a period of cold stratification for the seeds to properly germinate. While the reference materials relied on by Ms. Luttrell indicate that fall planting is ideal, they both recognized that spring planting could also be appropriate, provided it was done early enough. Mr. Ellingwood spoke of additional techniques which could be used to “cheat” the cold-stratification for spring planting.

Zoning

58The ZBA proposes to re-zone the Subject Site to R1-E(X) in the residential development area, OSE(x) in the Open Space Block 167 and OSP(X) in the Park Block 166. The proposed zone categories and all of the regulations for the R1- E(X) zone have been agreed upon between Mr. Guetter and Mr. Sappleton.

59The Applicant’s ZBA proposes additional uses in the OSP(X) and OSE(X) zones to specifically recognize the butterfly habitat and the bioretention facility, in the latter.

Holding Symbol

60Section 9.3.4 of the Oshawa Official Plan speaks to holding symbols.

61Mr. Guetter demonstrated how all of the items proposed in Mr. Sappleton’s Holding provision have already been captured through the Draft Plan Conditions.

62Although Mr. Sappleton agreed in cross-examination that the matters in his Holding provision are in fact addressed through the Draft Plan Conditions, he maintained that the Holding provision was necessary to address what he eventually acknowledged to be an unrealistic situation where the Applicant could build one single detached home on the Subject Site in advance of, and without clearing, the Draft Plan Conditions and receiving final approval.

Draft Plan Conditions

63The issue to be determined by the Tribunal, under this s. 51(34) appeal, is whether the proposed Draft PoS, with such Draft Plan Conditions that may be required to effectively implement the draft plan, have due regard for the criteria set out in s. 51(24) of the Act.

64Subject to such site-specific issues that may arise within the enumerated criteria, and in addition to the other specific criteria set out in the subsection, and the requirements of s. 3(5) of the Act, the Tribunal, in considering the Draft PoS, must:

• have regard for matters of provincial interest set out in s. 2 of the Act; ensure consistency with the PPS;
• be satisfied as to the conformity of the Draft PoS to the Growth Plan and the Region OP;
• whether the Draft PoS conforms, as well, to adjacent plans of subdivision if any;
• that the Draft PoS is not premature and is in the public interest;
• that the Site is suitable for the proposed draft plan; and that the PoS, with the Draft Plan Conditions, represents good planning.

65With respect to the proposed Draft Plan Conditions, under s. 51(25) of the Act, the Tribunal must also be satisfied that the Conditions are appropriate and reasonable, having regard to the nature of the proposed PoS, and thus: are causally related to the subject matter of the subdivision application; are achievable in that they can be satisfied by the Applicant/Appellant; represent an orderly means of implementing the Draft PoS and address all necessary pre-requisites to the draft plan and the application that is before the Tribunal; and represent good planning in the public interest as they will implement and permit the proposed Draft PoS.

66The following Amendments to the Conditions were put before the Tribunal for consideration:

67Condition 2 seeks the Tribunal to determine whether or not Monarch Butterfly habitat will be included in the Park and to what extent the trees will play in terms of the habitat area. Both Parties stated this will determine whether there is a requirement for cash-in-lieu for the park land dedication.

68Condition 7 seeks the Tribunal to determine who should review the 40M plan submitted by the Applicant. The City is wanting to have CLOCA review the 40M plan. The City submitted it is inappropriate for a developer to dictate who should look at an M plan.

69Condition 51 relates to the setback of a garage from the street line. The Applicant maintains this is best addressed through the Zoning By-law. The Applicant emphasized this condition goes beyond the applicable zoning requirements both in terms of the garage setback and required number of parking spaces which ultimately affects the design flexibility of the houses on the lots. The City maintained, that in agreeing to a smaller 18 m wide road, it is more appropriate to have a driveway length of 6.5 m on the side of the roads which do not have a sidewalk.

70Condition 56, the City submits that it finds it problematic to use the Applicant’s version of the plan until such a time as the Tribunal has rendered its decision regarding the inclusion or exclusion of the Monarch Butterfly habitat within the Park Block.

71Conditions 57 and 58 discuss what the subdivider is required to undertake with respect to landscaping at their own cost. Item b mentions that the applicant will be required to design and construct the trail at their cost. Mr. Guetter’s condition has inserted an additional sentence that stipulates that the subdivider shall be entitled to development charge credits for the trail, if applicable. Conditions 57(b) and 58 would allow the Applicant to seek development charge credits should they be available for the trail connections included in the Draft Plan. It was noted that the Applicant’s proposed wording does not commit the City to providing development charge credits or require or imply any particular outcome on the question of eligibility. Mr. Sappleton testified that the City’s current policy which has been in effect for several years is that the City does not pay developers for trails in their subdivision, and that the trail connection here is no different than a walkway connection that connects one street to another.

72Condition 61 included Mr. Sappleton testifying that the first option as outlined at pg. 30, Exhibit 6 correlates with a scenario where butterfly habitat remains in the park as is. This, he stated would only cover part of the parkland provisions of the Planning Act. The second option correlates with the City plan found at pg. 31 of Exhibit 6 would maintain a 0.41 hectare park without any butterfly habitat. The third scenario is Mr. Guetter’s recommended condition, that Park Block 166 satisfies the entire parkland requirement to be conveyed to satisfy the Applicant’s obligation.

73Condition 62 the City maintained, contains two optional conditions. If the habitat remains in the park and does not include the use of the trees as roosting options, the first option condition would require the developer to pay cash-in-lieu of parkland for the deficiency in parkland. The value of that would be based on 1 hectare per 500 units for which the Applicant is undersupplying. A second option would be, if any or all the butterfly habitat is not suitable in the park a consideration of a payment to the City for the under-dedication would need to be considered as a condition.

74Condition 63 relates to the City’s base park expectations, which is that the developer must grade, service, sod, fence and install proper drainage facilities in Park Block 166. The City has provided an alternative provision in the event the Tribunal decides that butterfly habitat is appropriate in the park, being that the City and SO developments agree to the 2nd optional paragraph in condition 63.

75Condition 64 condition compels the Applicant to undertake the implementation of the various ecological restoration measures in the park in accordance with Mr. Ellingwood’s environmental report ONLY if, the Tribunal determines the new habitat can be in the park. Otherwise, the City’s recommendation is that Condition 64 would remain blank.

76Condition 84, Ms. Luttrell testified that this condition is insufficient as the monitoring of the habitat to ensure/confirm SWH (through MUD) is not being considered. Mr. Ellingwood pointed to Condition 88 which was agreeable by both Parties which states that a comprehensive 6-year environmental monitory plan, with year one being the initial planting year would provide or yearly reporting on restoration success, Monarch use surveys and baseline vegetation monitoring and Monarch use surveys on the Phase 2 lands until the condition is cleared.

77Condition 86 as CLOCA requires the preparation of landscape plans to the satisfaction of the City and CLOCA, whereas the applicant has modified the conditions to tie to their landscape concept plan, the City submits this is not appropriate.

ANALYSIS AND FINDINGS

78As in the Phase 1 hearing, the Tribunal is faced with balancing the rights of private land ownership and the conditions as requested by the City for the development of the lands.

79At the conclusion of the Phase 1 Hearing, the Tribunal, after hearing from local residents, and the City, (both of which stated that the most important issue was the preservation of the SWH for migrating monarch butterflies), provided a direction that would promote a balanced approach to the protection of the SWH through a compensation program while furthering the provincial goal of providing more housing opportunities.

80The Tribunal finds that moving the Park Block to the east side of the Applicant’s property presents an opportunity to create an integrated park which will provide a SWH for the migrating butterflies and better access to the overall programming of the park without diminishing the creation of an urban edge appropriate to the adjacent neighbourhood.

81The Tribunal is somewhat perplexed with the introduction of an active play area containing a playground apparatus, covered seating area and a splash pad on the Park Land dedication. During Phase 1 hearing, the City was firm in its desire to have the most opportune amount of SWH remain and requested that the whole of the property remain in its original state. To this point, the introduction of an active area with contents that ensures continuous human presence is puzzling.

82The Tribunal understands through the evidence presented, that the concept of having a park contain Monarch Butterfly SWH is not new to the City. The City’s recently planned Gold Point Park is a City park for public uses located within a Monarch Butterfly SWH. The Tribunal notes further that the City Witnesses provided no clear, principled rationale as to why the habitat within the Gold Point Park constitutes a park for public use purposes, but the proposed habitat in Park Block 166 would not.

83Over the course of extensive ecological evidence, it became apparent to the Tribunal that the Applicant’s ecology witness, Mr. Ellingwood had in every instance applied the full rigors of all environmental policies and guidelines, whether or not, applicable, supported by field observation or personal deduction, to evaluate the proposed development on the Park Land designated area of the subject lands.

84The Tribunal prefers the measured and documented evidence of Mr. Ellingwood, whose approach to the application of Official Plan policies was cogent, conservative and supported by the independent determinations of the Mr. Guetter. The witness provided solid evidence on reasonable environmental and evolving ecological best practices relying upon the Ministry of Natural Resources and Forestry (“MNRF”) Significant Wildlife Habitat Mitigation Support Tool (the “MST”) along with a full understanding of the function of the Monarch Butterfly habitat and the actual nature of the habitat and the species.

85Even Ms. Luttrell, on behalf of the City, conceded that the most relevant and important guidance document for determining the appropriate mitigation measures for the SWH is the MST, which states in clear and plain terms: “Development on adjacent land is not expected to affect the function of migration stopover areas.”

86In fact, the MST recommends that migratory Monarch habitat can be provided in flower gardens in backyards, on roadsides, outside of active play areas on golf courses and even outside of active operations in pits and quarries.

87Through the evidence presented, Mr. Ellingwood describe the compensation program, the six (6)-year monitoring program and the enhance plantings (Monarch Butterfly dedicated plantings) and phasing of plantings along the waterfront portion of the Subject Land and in Park Block 166.

88The Tribunal notes that little has been confirmed between the Parties on the educational portion of the Monarch Butterfly habitat which was spoken to at length throughout the Phase 1 and Phase 2 hearings. The presentation of evidence regarding this topic by the City included statements regarding the cost of the signs and the need for the City to maintain the signage. The Tribunal having heard from the City regarding the perception of “weediness” by the public believes that signage is not only important for public education but also to identify the habitat to City workers ensuring habitat areas are protected from being mowed over.

89The Tribunal encourages the Applicant to finance and maintain this undertaking as part of the enhanced compensation program including the installation, monitoring and replacement of signage at the Applicant’s expense until the six-year (6)-year monitoring program and the enhance plantings (Monarch Butterfly dedicated plantings) and phasing of plantings along the waterfront portion of the Subject Land and in Park Block 166 concludes after which time, as opined by Mr. Ellingwood, the Monarch habitat would be established.

90With regard to Ms. Luttrell’s position that the Park Block would not be contiguous to the waterfront and not consistent with the condition of the existing habitat on the Subject Site, the Environment Impact Study mapping showed that currently the SWH for migratory butterflies is currently made up of patches of Goldenrod and various roosting trees scattered throughout the Subject Site and the City-owned lands to the south and is not the contiguous, uninterrupted habitat that Ms. Luttrell suggests is required.

91The Tribunal is satisfied that the obligations for SWH for migratory butterflies as set out in the Phase 1 hearing on the creation of an enhanced, species specific compensation program have been met within park Block 166.

92It is the finding of the Tribunal that Mr. Ellingwood’s approach withstood the challenges under cross-examination thereby providing the Tribunal with evidence that has been relied on in making this decision.

93The Tribunal prefers the evidence of the Applicant’s Planning expert, Mr. Guetter, with respect to the protection of the SWH for migratory butterflies and the determination of the developable portion of the site, which was the basis for his planning opinion.

94Through the evidence provided, it was demonstrated to the satisfaction of the Tribunal that the dedication of parkland was calculated correctly and will contain an appropriate amount of land dedicated to Migratory Monarch Habitat inclusive of the roosting trees within park Block 166. It will also provide for sufficient parkland for recreational purposes. The Tribunal finds a payment to the City in lieu of parkland dedication is not required for the proposed draft plan of subdivision.

95The Tribunal finds that the City’s concerns are unfounded regarding with the size of the proposed lawn areas for passive use as Mr. Wiskel admitted in cross-examination the areas would be 6-10 m or 20-30 feet in some areas, providing a suitable sized area for a range of passive uses. He further conceded that the lawn areas would increase once the active play area and splash pad were reduced in size or “right-sized” to fit the City’s design standards.

96The Tribunal finds that the City presented no real hard evidence that supports Mr. Wiskel’s concerns regarding the potential financial burden from additional maintenance and operations costs required for the Monarch Butterfly habitat. This leaves the Tribunal with testimony that is somewhat questionable when the witness himself could not provide the costs associated with the Migratory Monarch Habitat versus the City recommended splash pad.

ZBA Holding Provision

97Based on the evidence heard the Tribunal finds that the inclusion of the Holding Provision would amount to an unnecessary, redundant process in addition to the already detailed, comprehensive process which is outlined clearly in the Draft Plan Conditions.

98This unnecessary layer of process and regulation serves no reasonable purpose and does not represent good planning therefore, the Tribunal will not impose the use of a holding symbol.

Draft Plan Conditions

99Having heard Mr. Guetter’s expert opinion on the Draft Plan Conditions, and having the Tribunal determine that Monarch Butterfly Habitat, inclusive of the roosting trees, will be included within park Block 166, the Tribunal finds the Draft Plan Conditions are reasonable and otherwise meet the tests set out in s. 51(25) of the Act. inclusive of the following amendments:

100With regard to Condition 7, given the extensive review by agency and departments to date, it is the Tribunal’s findings that Planning Service’s review of the draft 40M Plan is sufficient.

101The Tribunal finds that Condition 51 relating to the setback of a garage from the street line as an inappropriate requirement to be imposed through Draft Plan Conditions, as it pertains to a setback matter, which is properly controlled through the Zoning By-law.

102The Tribunal finds that Condition 56, regarding the landscape submission shall include monarch butterfly habitat planting in Park Block166 in accordance with the Open Space Landscape Concept Plan prepared by SBK Landscape Architects dated June 30, 2022, with final details to be provided to the satisfaction of Parks, Planning and Development.

103Conditions 57(b) and 58, the Tribunal finds that the Applicant’s proposed wording does not commit the City to providing development charge credits or require or imply any particular outcome on the question of eligibility but to deny the ability to apply for development charge credits could be prejudiced in any future position it may wish to take to try to secure credits with regards to this matter.

Overall Planning Regime

104The Tribunal finds that the proposal is consistent with the policy direction established by the PPS, and as maintained by the ROP and OOP. The Tribunal is further satisfied that the proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and is in the greater public interest. Most significantly, the proposal furthers the goals and objectives of the provincial planning regime to increase housing opportunities.

105The proposal strikes the balance of protecting the SWH for migrating Monarch butterflies while allowing compatible infill low density residential development as a logical extension of the established pattern of development in an established neighbourhood.

106The Tribunal finds that development proposal has sufficient regard for the matters listed in s. 51(24) of the Act, including conformity with the Region OP.

107The Tribunal finds in siting the development, regard has been given to maintaining the migration along the shoreline and a phased construction plan to retain the function as migratory Monarch Butterfly stopover habitat throughout the proposed construction period (the “Phasing Plan”), as follows:

• Phase 1A: the proposed Monarch habitat will be constructed;
• Phase 1B: the Phase 1B lands will be cleared concurrently with Phase 1A; and;
• Phase 2: the northeast area of the Subject Lands, including the wooded area and wetland, will be cleared and then developed.

108The Tribunal finds the Phasing Plan will retain the Phase 2 lands, including the woodland and wetland area, to serve butterflies while the new Monarch habitat is being created. The Monarch habitat will have at least one year to establish prior to the removal of the woodland and wetland in Phase 2.

109It is the finding of the Tribunal that the Zoning By-law Amendment as presented, will enable the Development, represents good planning in the public interest.

Draft Plan of Subdivision

110The Tribunal finds that the proposed Draft PoS, with the amended Draft Plan Conditions required to effectively implement the draft plan, have due regard for the criteria set out in s. 51(24) of the Act.

111With respect to the proposed Draft Plan Conditions, under s. 51(25) of the Act, the Tribunal finds that the Conditions as amended are appropriate and reasonable, having regard to the nature of the proposed PoS, are causally related to the subject matter of the PoS; are achievable in that they can be satisfied by the Applicant/Appellant; represent an orderly means of implementing the PoS and address all necessary pre-requisites to the draft plan and the application that is before the Tribunal.

112As a result of these findings, and upon all of the evidence presented, the Tribunal finds that the PoS, with the Draft Plan Conditions, has regard for matters of Provincial Interest identified in s. 2 of the Act, represents good land use planning, and should be approved.

113The Tribunal will withhold its final order pending confirmation, satisfaction, or receipt of the following pre-requisite matters:

1. The Tribunal is to receive, and approve, the final draft of the Zoning Bylaw Amendment, for the subject lands completed to the satisfaction of the Director of Planning Services, in a form satisfactory to the Parties.
2. The Tribunal is to authorize the municipal clerk of the City of Oshawa to assign a municipal by-law number.

Summary

114Upon all of the evidence provided by the Experts, and with their findings, and for the reasons indicated, the Tribunal will accordingly allow the Appeals in part and will approve the ZBA at Attachment 1, and the revised Draft PoS, subject to those Conditions of Draft Plan Approval, as noted in the amendments discussed in paragraphs [98-101] and as set out in Attachment 2.

ORDER

115THE TRIBUNAL ORDERS that the appeal is allowed, and Zoning By-law 60-94 is hereby amended in the manner set in Attachment “1” to this Order. The Board authorizes the municipal clerk to assign a number to this by-law for record keeping purposes.

116THE TRIBUNAL ORDERS that within Attachment 2 the following conditions be amended with all remaining conditions being approved:

Condition 7: A draft of the final 40M plan for registration be submitted to Planning Services for review.

Condition 51: To be removed in its entirety.

Condition 56: The landscape submission shall include monarch butterfly habitat planting in Park Block166 in accordance with the Open Space Landscape Concept Plan prepared by SBK Landscape Architects dated June 30, 2022, with final details to the satisfaction of Parks Planning and Development.

Condition 57: The subdivider will undertake to the satisfaction of Planning Services and Engineering Services and at no cost to the City:

a) The design and installation of landscaping in any new channel be to the satisfaction of Planning Services in the City-owned lands to the south of the waterfront trail;

b) The design and construction to finished asphalt of all recreational trails outside of the road allowances in the draft plan of subdivision to a fully accessible standard as outlined in the Oshawa Accessibility Design Standard. This shall include the design and construction of north-south trail between Street A and the existing east-west waterfront trail on City-owned lands. The subdivider shall be entitled to development charge credits for the design and construction of recreational trails, where applicable.

c) The installation of enhancements and restoration planting in Open Space Block 167 and on any City-owned lands outside the plan disturbed as a result of construction;

d) The installation of fencing on Park Block 166 and Open Space Block 167 where adjacent to residential lots; and,

e) The installation of street trees, in accordance with the City standards and requirements.

Condition 58: The subdivider shall design and construct, the recreational trails and all structures deemed necessary through Open Space Block 167 to the satisfaction of Planning Services and the design shall be submitted as part of the landscape submission to Planning Services. The design of the recreational trails shall also be shown on the engineering drawings submitted to Engineering Services. The subdivider shall be eligible for development charge credits for the design and construction of such work, where applicable.

Condition 61: Block 166 shall be conveyed to the City at no cost, in a physical condition acceptable to Planning Services, to satisfy the parkland provisions of the Planning Act.

Condition 62: To be removed. Block 166 is the entire parkland dedication and no cash-in-lieu is required.

Condition 64: The subdivider shall undertake, at no cost to the City, the implementation of the Environmental Impact Study prepared by GHD dated March 30, 2022, with respect to the design of Block 166 containing new monarch butterfly wildlife habitat.

Condition 84: That the Owner prepare a finalized Phasing Plan that addresses the phased removal and restoration of significant wildlife habitat for Monarch Butterflies in accordance with the objectives, milestones and time periods set out in the Environmental Impact Study prepared by GHD dated March 30, 2022 and associated Phasing Plan prepared by Weston Consulting dated March 29, 2022, which will include an 18 month time period between the plantings in Phase 1A and clearing of Phase 2, to the satisfaction of the City of Oshawa and CLOCA.

Condition 86: That the owner prepare finalized Open Space Block Landscape Plans in accordance with the Landscape Concept Plan, prepared by SBK Landscape Architects, dated June 30, 2022, to the satisfaction of the City of Oshawa and CLOCA.

117THE TRIBUNAL ORDERS the Applicant to provide to the City an updated copy of the PoS reflective of the decision rendered that the SWH for the Migratory Monarch Butterfly inclusive of the roosting trees will be included in the PoS Block 166 submitted to the Planning department.

118The Tribunal will withhold its Final Orders with respect to each of the Appeals until such time as the prerequisites have been satisfied. Upon receipt of such written confirmation, the Final Order will issue.

119The Tribunal directs that if the parties have not completed the items in Attachment 2 within one year of the issuance of this decision, the parties shall provide a written status update to the Tribunal’s Case Coordinator by that same date.

120The Tribunal may be spoken to, at a time that is convenient to the Tribunal and the parties, should any difficulties arise in finalizing the items set out in Attachment 2.

“D. Chipman”

D.CHIPMAN

MEMBER

Ontario Land Tribunal

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

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