Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 07, 2022
CASE NO(S).: OLT-21-001810 (Formerly PL190545)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Bara Group (Whitby) Inc.
Subject: Application amend Zoning By-law No. 2585 - Refusal of Application by Town of Whitby
Existing Zoning: R2 – Residential Type 2
Proposed Zoning: Sie Specific
Purpose: To permit the use of an 8-storey mixed use building with 92 apartment units and 282.7 square metres of commercial space on the ground floor
Property Address/Description: 1201+1207 Brock St S & 1200+1202 Green St
Municipality: Town of Whitby
Municipality File No.: Z-31-18
OLT Case No.: OLT-21-001810
Legacy Case No.: PL190545
OLT File No.: OLT-21-001810
Legacy File No.: PL190545
OLT Case Name: Bara Group (Whitby) Inc. v. Whitby (Town)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Referred by: Bara Group (Whitby) Inc.
Subject: Site Plan
Property Address/Description: 1201+1207 Brock St S & 1200+1202 Green St
Municipality: Town of Whitby
OLT Case No.: OLT-21-001810
Legacy Case No.: PL190545
OLT File No.: OLT-21-001810
Legacy File No.: PL190546
Heard: February 15, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Bara Group (Whitby) Inc. (“Applicant”)
A. Skinner/M. Helfand
Town of Whitby (“Town”)
A. Biggart
DECISION DELIVERED BLAIR S. TAYLOR AND ERIC S. CROWE AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1On August 11, 2021, at the first Case Management Conference (“CMC”) the Tribunal had set a date for a second CMC on January 16, 2022, and a 5 day hearing to commence on Monday, May 9, 2022, with regard to a development proposal for the lands known municipally as 1201 and 1207 Brock Street South and 1200 and 1202 Green Street (“Subject Lands”).
2In late December 2021, the Tribunal was advised that arising out of Tribunal-led mediation, the parties had, on a without prejudice basis, reached a settlement in principle.
3The Tribunal was asked to adjourn the second CMC to February 16, 2022, in order to allow time for the parties to try and finalize their settlement.
4In the lead up to the second CMC, by email dated Friday, February 11, 2022, at 9:16 p.m. counsel for the Applicant electronically sent to the Tribunal a 1,280 page land use Planning Affidavit, Minutes of Settlement of 126 pages, and a draft Order.
5These materials were provided to the Members late on Monday, February 14, 2022 before the second CMC on Tuesday, February 15, 2022.
6At the CMC, the parties were advised that the Tribunal had had no time to review the voluminous materials and the Tribunal was not in an informed position to consider the proposed settlement.
7Instead, pursuant to the Tribunal’s Decision arising out of the first CMC, the Tribunal canvassed the Video Hearing (“VH”) attendees for anyone who had previously made a participant request that had been deferred, as there had been nine such deferrals. Of that number only Shawn Lowes was in attendance and confirmed his desire for participant status, which was granted by the Tribunal and his participant statement was entered as Exhibit 1.
8Next the Tribunal sought from counsel their recommendations on how to proceed. The consensus was that the Tribunal ought to proceed by written submissions and the parties could provide their materials by the end of the week.
9Thus, the Tribunal adjourned the VH hearing, and directed that the hearing would proceed by written submissions in accordance with the following:
a. The parties would file two hard copy sets of the land use Planning Affidavit, the Minutes of Settlement, and the draft Order:
b. The Town would provide an Affidavit from its land use planner in support of the proposed settlement, and the Applicant would have its planner provide a supplementary Affidavit regarding concerns raised by the participants;
c. Counsel for each party would provide a succinct and pithy written submission not to exceed 5 pages in length;
d. All of which is to be provided on or before Friday, February 18, 2022; and
e. And that the Town might wish to consider placing all of the settlement material on the Town’s website so it would be readily available to the public.
WRITTEN SUBMISSIONS
10The Tribunal acknowledges the receipt of the following materials:
Exhibit 2A and 2B being Volumes 1 and 2 respectively of the Compendium of Settlement Materials, which inter alia contain the Affidavit of Lindsay Dale-Harris sworn on Friday, February 11, 2022, the executed Minutes of Settlement between the Town and the Applicant, and a draft Order;
Exhibit 3 being the (supplementary) Affidavit of Lindsay Dale-Harris sworn Friday, February 18, 2022;
Exhibit 4 being the Affidavit of John Austin Manager, Development Control, Design and Technical Services for the Town, sworn Thursday, February 17, 2022;
For record keeping purposes, Exhibit 5 being the written submissions of counsel on behalf of the Applicant; and
For record keeping purposes, Exhibit 6 being the Written Submissions of counsel on behalf of the Town.
BACKGROUND AND CONTEXT
11The Subject Lands are located on Brock Street South which street is the major north-south arterial road of the Town. The Subject Lands are about 450 metres (“m”) from the entrance of the Whitby GO Station. Intervening between the Go Station and the Subject Lands is the 401 Highway.
12The Subject Lands have an area of about 0.33 hectares, and occupied by three detached dwellings. To the east are detached dwellings, to the south are commercial uses including a gas station and restaurants, and to the north and west are converted dwellings now used for business purposes.
13The original development application sought a Zoning By-law Amendment (“ZBA”) and Site Plan approval to enable the redevelopment of the Subject Lands for an 8 storey mixed use building with 92 apartments and 282.7 square metres (“sq m”) of commercial space on the ground floor.
14The Region of Durham Official Plan designates the Subject Lands as Living Area and within a Regional Corridor, and the Subject Lands are located within the built boundary of the Town and subject to the minimum intensification allocations of the Regional Official Plan.
15The Town’s Official Plan designates the Subject Lands as Mixed Use and they are located within a Community Central Area, and also within the Brock Street South Intensification Corridor, which would require a minimum height of 2 storeys and a maximum height of 8 storeys.
16While the Town Planning and Development Department recommended approval of the development proposal, Town Council denied the ZBA application and the Applicant appealed to the Tribunal.
PROPOSED SETTLEMENT
17Through Tribunal-led mediation the parties arrived at a settlement in principle based on a 3-6 storey mixed use building that has a reduced height, the relocation of the upper massing of the building, an increase in the angular plane of the proposed building, and with increased setbacks and stepbacks. (See Exhibit 2A, Tab W).
18The proposed settlement has been considered by Town Council and Exhibit 2B at Tab 2 contains the executed Minutes of Settlement (126 pages), which include the Settlement Proposal Plan, a draft ZBA, Site Plans and Drawings, and draft Site Plan Conditions of Approval.
19More specifically the Minutes of Settlement provide in paragraph 3 that the parties agree to settle the ZBA appeal and the Site Plan appeal on the terms and conditions set out in the Minutes of Settlement and ask the Tribunal to approve in principle the draft ZBA and the draft Site Plans and Drawings.
POLICY REGIME
20The Planning Act (“PA”) in s. 1.1 provides that two of its purposes are that land use planning is to be policy-led and to recognize the decision-making authority and accountability of municipal councils.
21Section 2 of the PA sets out a number of Provincial Interests that the Town Council and this Tribunal must have regard to in making a land use planning decision including:
The orderly development of safe and healthy communities (h);
The adequate provision of a full range of housing including affordable housing (i);
The resolution of planning conflicts between public and private interests (n);
The appropriate location of growth and development (p); and
The promotion of development that is designed to be sustainable, to support public transit and be oriented to pedestrians (q).
22Section. 2.1 of the PA requires the Tribunal when making a decision on a land use planning matter to have regard to any decision made by Town Council and the information and materials that Town Council considered in making its decision.
23Finally, the PA in s. 3(5) mandates that the Tribunal (and the Town council before it) when making a land use planning decision that such a decision shall be consistent with the Provincial Policy Statement (“PPS”), and shall conform to A Place to Growth: the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).
24The PPS in s. 4.6 provides that the Official Plan is the most important vehicle for the implementation of the PPS.
25The PPS contains directives to promote efficient and compact development within settlement areas using existing infrastructure, and encouraging intensification of underutilized lands.
26The Growth Plan speaks to the optimization of lands within the built-up area of a municipality through redevelopment and intensification.
27The Regional Official Plan designates the Subject Lands as Living Area, and within a Regional Corridor.
28The Town’s Official Plan designates the Subject Lands as Mixed Use area and within the Downtown Whitby Major Central Area, and within an intensification corridor along Brock Street.
COMMENTARY AND ANALYSIS
29The Subject Lands have excellent locational attributes: located on a major road, in the downtown area, and in close proximity to both the 401 and the Whitby GO station.
30To the Tribunal the Subject Lands are significantly underutilized with three detached dwellings, and appropriate for intensification.
31The Subject Lands are designated Mixed Use with potential height of up to 8 storeys.
32What is before the Tribunal are applications for a site specific ZBA and Site Plan approval, which would bring the Subject Lands into greater conformity with the Regional Official Plan and the Town’s Official Plan.
33The Tribunal has considered the decisions of Town Council, the information and materials that were before Town Council, the concerns of the participants, the uncontroverted Affidavit evidence of the Applicant’s land use planner and the Town’s land use planner, the settlement proposal and with its reduced height and building form, the Minutes of Settlement, and the written submissions of counsel.
34With the assistance of the Tribunal’s mediation panel, the parties have arrived at a settlement proposal that reduces height, has greater setbacks and stepbacks, an increased angular plane, yet still provides for the appropriate intensification of an underdeveloped site, within a settlement area, and in close proximity to the Whitby GO Station.
35The Tribunal is satisfied that the settlement proposal as found in the Minutes of Settlement in Exhibit 2B at Tab 2 has appropriate regard for the matters of Provincial Interest in s. 2 of the PA, is consistent with the PPS, conforms to the Growth Plan, conforms to the Regional Official Plan and the Town’s Official Plan, represents good land use planning and is in the public interest.
36Accordingly, the Tribunal will allow the appeals in part and approve in principle the draft ZBA found in Exhibit 2B at Tab 2, and approve in principle the draft Site Plans and drawings found in Exhibit 2B at Tab 2, but will withhold its final order pending confirmation from the parties that the ZBA and the Site Plans and drawings are in a final form satisfactory to the parties.
37In the event the parties have not requested the Tribunal to issue its Final Order in this matter on or before Wednesday, June 15, 2022, the Tribunal directs that counsel for the parties shall on or before Wednesday, June 15, 2022, provide a written status update to the Case Coordinator documenting the timing of the expected submission of the request for the Final Order.
38In the event that the parties fail to provide the required request and/or the written status report by the required date, the Tribunal may dismiss the appeals.
39We remain seized of this matter for the purposes of reviewing the final ZBA and Site Plans and drawings, and may be spoken to for case management purposes.
40Finally, the Tribunal wishes to acknowledge the willingness of the parties to utilize Tribunal-led mediation to arrive at a settlement that is satisfactory to both sides, and which will save the parties from a long and expensive hearing on the merits.
41This is the Interim Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
MEMBER
“Eric S. Crowe”
ERIC S. CROWE
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.