Ozner Corporation (South) v. Vaughan (City), 2022 CanLII 122382

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 20, 2022

CASE NO(S).: OLT-22-002421 (Formerly PL130753) OLT-21-001787 (Formerly PL111184)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Site Plan

Referred by: Ozner Corporation (South)

Property Address/Description: South-east corner of Weston Road and Retreat Boulevard, legally described as Lot 22, Concession 5, shown as Blocks 10 and 272 on Registered Plan of Subdivision 65M-3898

Municipality: City of Vaughan

City of Vaughan File No.: DA.11.113

OLT Case No.: OLT-22-002421

Legacy Case No.: PL130753

OLT Lead Case No.: OLT-22-002421

Legacy Lead Case No.: PL130753

OLT Case Name: Ozner Corporation (South) v. Vaughan (City)

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

Applicant and Appellant: Ozner Corporation (South)

Subject: Request to amend the Official Plan - Failure of the City of Vaughan to adopt the requested amendment

Existing Designation: “Low-Rise Residential”

Proposed Designation: “High Density Residential Commercial”

Purpose: To permit the development of two, 12-storey apartment buildings with a total of 379 units

Property Address/Description: 0.87 hectare (2.16 acres) parcel of vacant land located at the south-east corner of Weston Road and Retreat Boulevard in the City of Vaughan, legally described as Lot 22, Concession 5, shown as Blocks 10 and 272 on Registered Plan of Subdivision 65M-3898

Municipality: City of Vaughan

Approval Authority File No.: OP.11.011

OLT Case No.: OLT-22-002423

Legacy Case No.: PL130800

OLT Lead Case No.: OLT-22-002421

Legacy Lead Case No.: PL130753

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

Applicant and Appellant: Ozner Corporation (South)

Subject: Application to amend Zoning By-law No. 1-88, as amended – Neglect of application by the City of Vaughan

Existing Zoning: “RT1 Residential Townhouse Zone” and “C3 Local Commercial Zone”

Proposed Zoning: “RA3 Apartment Residential Zone”

Purpose: To permit the development of two, 12-storey apartment buildings with a total of 379 units

Property Address/Description: 0.87-hectare (2.16 acres) parcel of vacant land located at the south-east corner of Weston Road and Retreat Boulevard in the City of Vaughan, legally described as Lot 22, Concession 5, shown as Blocks 10 and 272 on Registered Plan of Subdivision 65M-3898

Municipality: City of Vaughan

Municipal File No.: Z.11.042

OLT Case No.: OLT-22-002425

Legacy Case No.: PL130801

OLT Lead Case No.: OLT-22-002421

Legacy Lead Case No.: PL130753

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1042710 Ontario Limited (aka Royal Centre)

Appellant: 1096818 Ontario Inc.

Appellant: 11333 Dufferin St. et. al.

Appellant: 1191621 Ontario Inc.; and others

Subject: Failure to announce a decision respecting Proposed New Official Plan

Municipality: City of Vaughan

OLT Case No.: OLT-21-001787– Appeal No. 17

Legacy Case No.: PL111184

OLT Lead Case No.: OLT-21-001787

Legacy Lead Case No.: PL111184

OLT Case Name: Duca v. Vaughan (City)

Heard: July 25, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
City of Vaughan (“City”)	R. Kehar, G. Perhar
Ozner Corporation (“Ozner”)	Q. Annibale, B. Ruddick

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND INTERIM ORDER OF THE TRIBUNAL

PART ONE: INTRODUCTION

1This appeal by Ozner was conducted by Video Hearing (“VH”) on the following days: August 2, 3, 5 and 8, 2022 with final written argument delivered by the Parties to the Tribunal on September 14, 2022.

2Ozner appeals in respect of the City’s failure to reach a decision on its most current applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”) and Site Plan Approval (“SPA”) in order to permit a nine-storey mid-rise building (“Development”) on Ozner’s property municipally known as 10131 Weston Road, in the City (the “Site”).

3The materials before the Tribunal were:

a) Ozner Compendium of Witness Statements, comprising four volumes and 1,459 pages;

b) Joint Document Book of the Parties, comprising 73 tabs and 4,424 pages;

c) Consolidated Visual Evidence (Humphries Planning Group), comprising 24 pages;

d) Turner Fleischer, Elevations, comprising 12 pages;

e) Turner Fleischer, Renderings, comprising 7 pages;

f) Ted Davidson, Witness Statement (“WS”), comprising 10 pages;

g) Ted Davidson, Reply WS, comprising 15 pages;

h) City’s Visual Exhibits, comprising 34 pages;

i) Ozner Written Argument, comprising 83 pages;

j) Ozner Book of Authorities, comprising 35 pages;

k) City’s Closing Submissions, comprising 27 pages; and

l) Ozner’s Reply Submissions, comprising 10 pages.

PART TWO: EVIDENCE AND ANALYSIS

Relevant History

4Ozner notes that the Site is located on the southeast corner of Weston Road and Retreat Boulevard and that Weston Road is a regional arterial road under the jurisdiction of the Region of York (“Region”) and Retreat Boulevard is a minor collector road. The Site is located along the western edge of planning block 33W in the City and is approximately 350-500 metres (“m”) north of Major Mackenzie Drive. Ozner in final argument states that the Site is currently vacant and is under-utilized given its location on an arterial road and in an urbanized area that has not previously been developed and apart from use as a sales office and associated parking, the prior use of the lands was agricultural.

5The Site is across the street from a large stormwater management pond to the north; directly to the east, on Retreat Boulevard and Zachary Place, there are existing lower density ground related units consisting of detached and semi-detached dwellings on Retreat Boulevard and townhouses on Zachary Place; located to the south, west, southwest and northwest along Weston Road are planned and approved various forms of townhouse development. The lands, at the intersection of Major Mackenzie Drive and Weston Road, are undergoing significant redevelopment and are planned for high-density, mixed-use development with proposed heights and densities of up to 36 storeys and up to 5.78 Floor Space Index (“FSI”), in the northwest quadrant and approved heights and densities of up to 12 storeys and up to 4.19 FSI, in the northeast quadrant.

6As argued by Ozner’s counsel in final submissions, the Development “…is an example of modest intensification, which has been designed to be sensitive to its location and surrounding context in conformity with all built form and urban design policies and provisions of the Vaughan Official Plan, 2010, and consistent with the City‘s Urban Design Guidelines.” The overall density of the development, including both the mid-rise and townhouse components is 1.86 FSI and the height of the mid-rise building is to be nine storeys or 30.1 m excluding the mechanical penthouse. The building steps down to six and two storeys on the west, east and south elevations and has been designed to concentrate its height and massing towards the intersection of Weston Road and Retreat Boulevard and away from the adjacent low rise residential properties and incorporates generous step backs and setbacks. A total of 192 units are proposed within the mid-rise component of the Development which also includes a total of 10 townhouse units, three storeys in height, and are proposed to be located between two blocks at the south end of the Site.

7On September 7, 2010, City Council adopted the City of Vaughan Official Plan, 2010 (“City Official Plan”), which designated the subject site as a “mid-rise mixed use” on Schedule 13 – Land Use with a maximum building height of six storeys and a density of 2.0 FSI. The City Official Plan was subsequently appealed by several Parties prior to the Region making a decision to approve the plan. In December 2011, Ozner filed applications for OPA, ZBA, and SPA with the City. At that time, the proposal was to develop two 12-storey apartment buildings with a total of 379 units at a density of 3.54 FSI. At the time of the applications, the City Official Plan was not in force due to appeals filed with the Ontario Municipal Board. As a result, the application for OPA was filed to amend the then in force policies of the Vellore Village District Centre Plan (OPA 600 as amended by OPA 650).

8In April 2012, the City Council endorsed proposed modifications to the City Official Plan that, if approved, would have the effect of “down designating” the Site from the adopted “mid-rise mixed use” to “low rise residential”. Ozner’s counsel argues that these proposed modifications were not supported by any prior City staff recommendation and were presented at the meeting of the Committee of the Whole without prior notice to his client. Subsequently, in May 2012, Ozner filed appeals of the City Official Plan on a site-specific basis pursuant to s. 17(40) of the Planning Act R.S.O. 1990, c. P.13, as amended (“PA”).

9The first prehearing conference was held in 2014 but the appeals were subsequently adjourned sine die until the Case Management Conference (“CMC”) was held in October 2020. At the October 2020 CMC, the Tribunal directed that the Applicant prepare a full resubmission and file it with the City and Region. This was done in December 2020 and is substantially consistent with the proposal that is now before this Tribunal.

10Following the resubmission, at the direction of the local City Councillor, Ozner considered a six-storey option that would maintain the proposed density and eliminate the townhouse blocks. At the VH, Ozner’s experts, Rosemarie Humphries and Peter Turner noted that this alternative option was not desirable from a massing perspective and that it did not represent an appropriate design regardless of whether breaks are introduced along Weston Road. It was Mr. Turner’s view that the nine-storey option was preferable because it takes the same density and concentrates it at the corner of Weston Road and Retreat Boulevard where it will have less impact on neighbouring properties. Ms. Humphries agreed with this assessment, noting that the six-storey alternative would result in the massing of the building being spread out and located closer to adjacent residential properties, and therefore, is a much less desirable option in her view.

11Counsel for the City has a different view of some of the background and history. In final argument, he notes that the Site is not within an intensification area in any of the applicable provincial, regional and/or local planning policy documents and is instead designated in the City Official Plan as a Community Area. Community Areas are planned to receive limited intensification. Community Areas, on the hierarchy of intensification in the City, are planned to absorb the lowest scale of intensification. In his view, the Development does not represent limited intensification and does not fit the scale of intensification planned for this Community Area.

12The City’s counsel further notes that the Site is within 70 m of land to the immediate east that are designated Low-Rise Residential. These lands to the east are built out with single detached dwellings and townhouses. He points out that the Site is 300-500 m away from Major Mackenzie and that portions of Major Mackenzie are identified in the City’s OP as a Primary Intensification Corridor. Unlike the Site, the portion of Major Mackenzie south of the Site and encompassing the four corners of Weston Road and Major Mackenzie is identified as an intensification area in the OP known as a Local Centre – which does not include the Site. Thus, counsel for the City maintains that this reflects an intent of where higher density development in this area should go, being the Local Centre itself and not the Site. The boundary of the Local Centre represents a limit where the level of intensification within and outside of it should be distinguishable, in his view.

13Through the submissions of counsel, the City conceded that intensification can occur on the Site. However, in this case, it is a question of whether the scale, massing, height and intensity of that intensification: i) fits within the hierarchy of intensification planned in the City Official Plan; and ii) is compatible with the character of the surrounding area. Interestingly, no member of the City’s Planning staff was called as a witness to express these views on behalf of the City – instead, counsel for the City called a single outside planning expert to present his planning opinion. Of course, in the view of Ozner’s counsel, the obvious reason for this was that, at all material times, the City’s planning staff largely supported the Development proposed by Ozner – while the City’s Council felt otherwise.

The Opinion Evidence and Factual Background Supports the Appellant’s Case

14As noted above in paragraph [13], the City’s planning staff essentially supported Ozner’s Development. Ozner’s counsel maintains in final argument that:

On November 9, 2021, the City received and considered a recommendations report from the Development Planning Department with respect to the applications and associated OLT appeals…Through this report, the City’s professional planning staff recommended that the City appear at this hearing in support of the development…at the height and approximate density proposed, and provided their opinion that the applications are consistent with and conform to all applicable Provincial policies, conform to the Region Official Plan 2010, maintain the intent of the City Official Plan 2010, and that the proposed development is considered to be compatible with the surrounding existing and planned land uses.

15Counsel for Ozner went on to argue that:

As described in the staff report, all fundamental technical aspects of the Development have been addressed to the satisfaction of Region and City staff, including traffic/transportation, site access, servicing feasibility, noise, environmental impacts, and urban design…the City has confirmed that it is not raising any technical issues or concerns with respect to the proposed Development through this hearing…

16Despite the lack of any apparent basis for rejection of the Development, Ozner’s counsel points out that the Committee of the Whole of the City’s Council nonetheless rejected his client’s applications – and then retained the City’s law firm and a single outside planning consultant to oppose Ozner’s appeal. The City filed no witness statements from any member of City staff, and none were called as witnesses by the City at the VH.

17The Tribunal agrees with counsel for Ozner that the main dispute is apparently whether the level of intensification proposed through the Development is appropriate – and in particular whether the proposed nine-storey height of the mid-rise building versus the six storeys that the City has indicated it could potentially support, conforms with the policy direction for intensification and development within the City’s OP.

18Ozner’s expert witnesses were Ms. Humphries and Mr. Turner. The City’s sole expert witness was Mr. Ted Davidson. For the reasons set forth below in this Part Two, the Tribunal accepted and preferred the evidence and professional opinions provided by Ms. Humphries and Mr. Turner.

19Ms. Humphries is a registered professional planner in Ontario with over 35 years of planning experience and was qualified by the Tribunal without objection to provide opinion evidence on land use planning matters. She was first retained by Ozner more than 10 years prior to the VH to consult on its development proposals for the Site. Mr. Turner is a principal with the firm of Turner Fleischer and is both a well-known architect and a registered professional planner. He has some 48 years of experience and was qualified to provide opinion evidence on architectural and design matters in relation to his firm’s work in designing the building comprising the Development.

20Mr. Davidson is also a highly experienced Ontario professional planner with almost 50 years of experience relating to a wide variety of planning projects in the City throughout the GTA and elsewhere. He was also qualified without objection to provide planning opinion evidence to the Tribunal. Unlike Ms. Humphries and Mr. Turner however, he was retained by the City and its counsel solely to respond to Ozner’s appeal and had not been involved in any of the previous detailed work and analysis conducted by the City’s planning department in relation to the Development. Moreover, as noted, he reached a different conclusion than did his client’s planning department.

21Ms. Humphries testified at the VH in a clear and convincing fashion, and, in the Tribunal’s view, her substantive opinions as set out in her oral evidence and in her WS and Reply WS were not successfully challenged on cross-examination. In summary, her conclusions were as set out below in paragraphs [22], [23], [24], [25], [26] and [27] below and are accepted by the Tribunal.

22The Development properly addresses matters of Provincial interest found in s. 2 of the PA.

23The Development is consistent with the provisions of the Provincial Policy Statement, 2020 (“PPS”) in that it:

a) Focuses and directs growth and development towards a designated Settlement Area;

b) Encourages an increase in the mix and supply of housing;

c) Locates development in an area where community services and facilities exist and where people can access a range of services, programs and activities;

d) Is supported by existing municipal infrastructure, including water and wastewater services which ensures public health and safety and minimizes unnecessary public expenditures;

e) Introduces intensified residential land uses along existing and planned transit infrastructure in a manner that is safe, efficient and has high connectivity; and

f) Encourages contextually sensitive compact development in a manner that recognizes existing development/land uses and supports and complements the local community structure.

24The Development conforms to the Growth Plan for the Greater Golden Horseshoe, 2019, as amended in 2020 (“GP”) and implements its key policies by:

a) Directing residential intensification and development within an existing Settlement Area and the Designated Greenfield Area of the City of Vaughan;

b) Promoting the development of a complete community that offers a mix of housing types and tenures;

c) Locating development in an area with access to local amenities, and connections to municipal water and wastewater systems;

d) Establishing a transit-supportive development by enabling higher density residential development within walking distance to transit routes and stops; and,

e) Assisting the City in meeting /exceeding the greenfield density target.

25The Development conforms to the applicable policies, intentions and objectives of the York Region Official Plan and the City Official Plan;

26The Site does not have an ecological system, natural area, agricultural land, natural resources or significant archeological or heritage resources. The development application process has required the completion of an overall sustainability matrix wherein one component assesses energy conservation and efficiency for the project. The Site is adequately serviced by transportation, municipal servicing infrastructure and represents the last property on the edge of the community along an arterial and collector road. The Development will provide a greater range of housing choices than those currently existing in the surrounding area. The Development addresses urban design guidelines, and the interface with adjacent lands representing both public and private spaces and interests through the provision of pedestrian pathways, well defined amenity space areas and vehicular traffic.

27Finally, the proposed Development and planning instruments represent good planning as the responds to provincial policy initiatives by providing a further range of housing choices and building forms in an area that is dominated by singles, semis and townhouse development.;

28Mr. Turner’s evidence in both his written and oral testimony was that:

a) The residential context, both existing and proposed, at the intersection of Weston Road and Retreat Boulevard is for three storey townhouses and two storey detached dwellings. The proposal is for an L-shaped mid-rise building terracing from 9 storeys at the north-west corner, down to three storeys at east and south ends of the L-shape, thus mitigating any impact from the taller portion of the building;

b) The Development is designed to meet the intent of all City of Vaughan urban design guidelines;

c) Ground level suites fronting onto both Weston Road and Retreat Boulevard have direct pedestrian access to Weston Road and to Retreat Boulevard sidewalks, thus providing an appropriate relationship to the public realm. There is no pedestrian access to the lands to south and east, which also serves to provide an appropriate relationship;

d) The proposal has all vehicular access from Retreat Boulevard. Sidewalks connect directly to both Weston Road and to Retreat Boulevard. As Weston Road can be quite busy with traffic, using Retreat Boulevard as the only access point is appropriate to minimize any vehicle conflicts entering the site;

e) The proposed built form has been designed, as illustrated in 3D renderings, to meet City urban design guidelines. In his opinion, the site plan is appropriate and good planning from an urban design perspective;

f) The design of the Development proposal is appropriate within its context and is in conformity with the built-form policies of the City. In addition, the proposal will provide positive benefits to the site and the area. From a built­ form point of view, the proposal has acceptable impacts on the surrounding community;

g) The Development proposal has been designed to respect and be sensitive to the existing physical character and uses of the surrounding area in terms of the buildings’ orientation, heights, scale, and setbacks;

h) In this Established Community Area, the proposal is located and organized to respect and reinforce the physical character and uses of the surrounding area, including the building types of nearby residential properties, the heights and scales and setbacks of the established neighbourhood. It will frame and support the surrounding public realm and be massed to fit harmoniously into its surrounding environment including appropriate transition to areas of lower intensity development; and,

i) It was his professional opinion that the planning and urban design of the proposed Development appropriately addresses the relevant planning and urban design policies of the City, would fit well within its existing and planned urban design context, and represents good urban design practice.

29As noted, Mr. Davidson was retained by the City’s lawyers solely to oppose Ozner’s appeal. He conceded that the City’s planning staff generally supported the essential concepts and plans of the Development. However, Mr. Davidson disagreed with the conclusions reached by the City’s planners and also those of Ms. Humphries. He also attempted to offer opinions contrary to those of Mr. Turner although he admitted during his cross-examination that he was not retained to offer architectural or design opinions and conceded that he had not been qualified by the Tribunal to do so. As already noted, the Tribunal preferred the opinions and conclusions of Ms. Humphries and Mr. Turner to the extent of all contrary opinions expressed by Mr. Davidson in his WS, Reply WS and during his viva voce evidence at the VH.

PART THREE: CONCLUSIONS

30As noted in Part Two above, the Tribunal accepted the evidence of Ms. Humphries and Mr. Turner and was therefore of the view that:

a) All matters of provincial interest enumerated under s. 2 of the PA have been met by the proposed Development;

b) The Development is consistent with the requirements set out in the PPS;

c) The Development conforms with the applicable requirements of the GP;

d) The Development satisfies the requirements of the City’s OP and the York Region Official Plan, including all applicable urban design guidelines and principles; and,

e) The Development respects principles of good planning.

31Therefore, the Tribunal allows this appeal by the Applicant Ozner Corporation, in part, subject to the Interim Orders set out below.

INTERIM ORDER

32THE TRIBUNAL ORDERS THAT these appeals are:

a) Allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in this paragraph 32 and also in paragraph [33] below;

b) The draft Official Plan Amendment to Schedule 13 of the City of Vaughan Official Plan, 2010 set out in Attachment 1 to this Interim Order is hereby approved in principle;

c) The draft Zoning By-law Amendment set out in Attachment 2 to this Interim Order is approved in principle but shall be further amended to set out performance standards, including numerical height, setback and step back regulations to ensure that no larger building can be constructed than that described in Attachment 3 hereto; and,

d) The Applicant’s application for Site Plan is approved in principle in accordance with the drawings appended hereto as Attachment 3 and subject to the conditions appended hereto as Attachment 4.

33The Tribunal will withhold the issuance of its Final Orders relating to the Interim Orders set out in paragraph [32] above contingent upon confirmation by the counsel for the City, of the following pre-requisite matters:

a) The Tribunal has received, and approved, the Official Plan Amendment submitted in a final form confirmed to be satisfactory to the City’s Solicitor;

b) The Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form confirmed to be satisfactory to the City’s Solicitor; and,

c) The Tribunal is advised that the Applicant has satisfied all requirements for the Site Plan contained in the drawings appended as Attachment 3 hereto and has satisfactorily complied with the Site Plan conditions set out in Attachment 4 hereto;

34The Panel Member will remain seized for the purposes of reviewing and approving the final drafts of the Official Plan Amendment and the Zoning By-Law Amendment and the issuance of the Final Orders as described in paragraphs [32] and [33] above.

35If by March 1, 2023 the Parties do not submit the final drafts of the Official Plan Amendment and the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [33] above have been satisfied, and do not request the issuance of the Final Order, then the Applicant and the City shall provide a written status report to the Tribunal before that date, as to the timing of the expected confirmation and submission of the final form of the draft Official Plan Amendment and Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, by March 1, 2023, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss these Appeals.

36If and as required, The Tribunal may arrange the further attendance of the Parties by video hearing event or telephone conference call to determine the additional timelines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“William R. Middleton”

William r. middleton

VICE CHAIR

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.