Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 17, 2022

CASE NO(S).: OLT-21-001138

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

Applicant and Appellant: Domus Developments Inc.

Subject: Application to amend Zoning By-law No. 50-88 - Refusal or neglect of City of St. Thomas to make a decision

Existing Zoning: R1-11, R1-12, R3-46, R4-32, OS-3, and NH

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 77-unit residential development

Property Address/Description: 59 Walnut Street

Municipality: City of St. Thomas

Municipality File No.: 2-13-20

OLT Case No.: OLT-21-001138

OLT Lead Case No.: OLT-21-001138

OLT Case Name: Domus Developments Inc. v. St. Thomas (City)

Heard: December 2, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Domus Developments Inc. (“Applicant/Appellant”)

Paula Lombardi

City of St. Thomas (“City”)

Analee Baroudi

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This video hearing was the first Case Management Conference (“CMC”) and a hearing conducted at the request of the City and the Applicant/Appellant who informed the Tribunal that they have reached a settlement regarding all issues in the appeal.

2The Applicant/Appellant requested site-specific Zoning By-law Amendment (“ZBA”) to the City’s Zoning By-law No. 50-88 (“ZBL”) for the development of their properties located in the City and municipally known as 59 Walnut Street. The Applicant/Appellant plans to build a mix of housing types for a total of 77 dwelling units.

3The Tribunal marked as Exhibit 1 the duly served notice of this CMC.

4For the reasons that follow, the Tribunal allows the appeal in part and the City is directed to amend the City’s By-law No. 50-88 as set out in Attachment 1.

PARTIES AND PARTICIPANTS

5The Tribunal received one request for Party status in the name of Historic Neighbourhood Community Association (“HNCA”). The Tribunal was informed that this organization plans to incorporate and will provide the appropriate materials to the Tribunal as these became available.

6The Tribunal was later informed that the HNCA will not be incorporating. Mark Sargent as an individual instead sought Party status in place of the HNCA. The counsel for Mr. Sargent, Jonathan Minnes submitted the request for Mr. Sargent and provided the following description as excerpted from their letter dated November 17, 2021, underlying their basis for the Party request:

We have been retained by Mark Sargent, who is acting on behalf of the Historic Neighbourhood Community Association (which is in the process of being incorporated) with respect to the upcoming Case Management Conference, which has been scheduled for December 2, 2021. Please find enclosed our Request for Party Status in this regard.

Our client is the owner of property located at 49 Stanley Street in St. Thomas, and is an interested neighbourhood resident, who had previously made comments on the application at the public meeting on November 9, 2020. We also note that Land Use Planner, Will Pol, presented on behalf of the Historic Neighbourhood Community Association prior to Council’s decision.

7Mr. Minnes was asked by the Tribunal to delineate what planning policy basis formed their request for appeal and what evidentiary plans exist to bring forward evidence in support of the same. Mr. Minnes insisted that the letter as it was originally submitted (as excerpted above) by itself and in itself was sufficient within the context of statutory requirements for the granting of party status request by the Tribunal.

8The Tribunal sought submissions from counsel for the Applicant/Appellant, Paula Lombardi. Ms. Lombardi submitted that the submitted letter on behalf of Mr. Sargent falls short of identifying any policy or planning matters.

9In inquiry of the counsel for the City, Annalee Baroudi submitted that the letter advanced no planning arguments and that no policies are identified.

10The Tribunal sought further clarification and response from Mr. Minnes. He continued to insist that the letter was appropriate and sufficient for consideration and grant of Party status to Mr. Sargent.

11Mr. Minnes further alluded to and requested the Tribunal to note that they will consider other options to pursue their interest in this regard should the Tribunal refuse their request for Party status. The Tribunal noted and informed Mr. Minnes that there is nothing that takes away their rights as appropriately allowed in the Tribunal’s Rules or in the applicable statutes.

12Having considered the submissions from the counsel for the Applicant/Appellant, the City and Mr. Minnes; and in consideration of Rule 8.2 of the Tribunal’s Rules of Practice and Procedure as follows:

8.2 Power of Tribunal to Add or Substitute Parties – The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

The Tribunal determined that the unknown participation of Mr. Sargent in the context of a planning matter hearing was neither necessary nor would it assist the Tribunal in determining this appeal and adjudicate effectively and completely on the issues in the proceeding.

13The Tribunal denied the request for Party status made by Mr. Sargent. In the alternate, Mr. Sargent was granted Participant status and any material or information submitted by Mr. Sargent will be considered by the Tribunal in that context.

14There were no other requests received for Party or Participant status and none were granted.

CONVERSION TO A SETTLEMENT HEARING

15The Tribunal having been previously provided with a sworn affidavit by the Applicant/Appellant in support of the settlement and with consent of the City, the Tribunal allowed the matter to proceed as a settlement hearing.

EVIDENCE AND ANALYSIS

16The City and the Applicant/Appellant jointly presented Kevin McClure to provide evidence. Mr. McClure works at the City as a land use planner. With consent of the Applicant/Appellant, Mr. McClure was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.

17In order to determine this matter, the Tribunal must make findings regarding the following statutory tests:

(a) Does the ZBA have regard for the provincial interest?

(b) Is the ZBA consistent with the Provincial Policy Statement 2020 (“PPS”)?

(c) Does the ZBA conform with the City’s Official Plan (“COP”)?

(d) Does the ZBA represent good land use planning?

18Mr. McClure stated that he adopts the staff report which recommended approval of the ZBA. He stated that the Applicant/Appellant has worked with the City subsequent to the original staff report, and the settlement has resulted from further refinement of the proposal to alleviate and mitigate any public or City concerns inclusive of any concerns that the surrounding neighbourhood community and participant Mr. Sargent.

19Mr. McClure stated that the proposal calls for developing the subject property as a 3-storey apartment building along Stanley Street, with 28 units and a 5-storey apartment building with 46 units at the southern extent of the property on the tablelands. The existing converted dwelling (3 units) is proposed to be retained providing a total of 77 residential units. An outdoor amenity area is to be provided fronting on Walnut Street while courtyards are also provided for the ground units of the apartment buildings.

20Mr. McClure provided details for the ZBA as follows:

The proposed Zoning By-law Amendment would change the existing site-specific Residential zones (R1-11, R1-12, R3-46, R4-32) and a site-specific Open Space sone (OS-3) on the property to a site specific Fifth Residential Zone (R5-44) and apply site-specific regulations to: Only permitted uses being “Existing Triplex Dwelling”, “Apartment Dwelling”, and “Uses accessory to the foregoing”; permitted buildings and structures being “One Existing Triplex Dwelling”, “One Apartment Dwelling (28 units)”, and “One Apartment Dwelling (46 units)”; that the location of permitted buildings and structures be those that are permitted within the areas shown on the Special Zoning Map to the amendment; provide a minimum lots area of 15230 square metres; maximum lot coverage of 20%; maximum building height of 2-storeys (7.5 metres) for a permitted triplex dwelling, 3-storeys (13- metres) for a permitted apartment dwelling, and 5-storeys for a permitted apartment dwelling; and minimum parking of 93 spaces, including 5 accessible parking spaces.

21Mr. McClure reviewed the Planning Act (“Act”) and opined that the proposal has regard for the provincial interest. He based his opinions in concurrence with the staff report (Exhibit 2, Exhibit E) for the City, which concluded that the proposal provides for meeting current and future needs in a range of choices and quantitatively adds to housing supply. Namely as in the following subsections of s. 2 of the Act:

(h) the orderly development of safe and healthy communities;

(j) the adequate provision of a full range of housing, including affordable housing.

22Mr. McClure reviewed the PPS and opined that the proposal is consistent with the applicable policies in the PPS. He cited policies in Section 1.1 which direct promotion of efficient development and land use patterns and sustain the financial well-being of the Province and municipalities. He opined that the proposal is in settlement area of the City and would efficiently use the available municipal infrastructure and services. Mr. McClure also reviewed Section 1.4 of the PPS which directs for provision of a diversity of housing options. Mr. McClure reviewed Section 3.1 of the PPS opined that an expert study was provided by the Applicant/Appellant to the satisfaction of the City. He added that this report established that there will be no erosion hazard created as a result of the proposed development. Mr. McClure summarized that when all the policies are coupled with the proposed development inclusive of landscaping and other attributes, the proposal is consistent with the PPS.

23Mr. McClure reviewed and opined that the ZBA conforms with the COP. Mr. McClure stated that the lands are designated “Residential”, “Natural Heritage”, and “Natural Hazard” on Schedule “A” and as such, the associated policies are required to be considered for conformity with the COP.

24Mr. McClure stated that in consideration of the proposal, the City has considered it to represent high-density residential with respect to policy in Section 5.1.3.4 of the COP. He opined that the revised proposal re-siting and the application of appropriate considerations as contained in the City’s Tree Preservation By-law to ensure that the proposal conforms with policy 5.1.3.4 of the COP.

25Mr. McClure considered Section 6.2 of the COP with regard to which directs for the adequate provision of variety of dwelling and tenure types. Mr. McClure opined that through the proposed mix of existing triplex dwelling with the new dwelling units will provide for the desired conformity directed by policy in Section 6.2.

26In reviewing natural heritage aspects, Mr. McClure reviewed Section 8.3.2 and 8.4 of the COP as well as natural heritage consideration per Schedule “A”. Mr. McClure stated that the Applicant/Appellant studies have confirmed, and he agrees with their conclusion that there will be no direct impact on the natural heritage features and the ecological functions adjacent to the proposed added building on the site. He added that potential erosion hazard has been addressed by the Applicant/Appellant experts and he accepts their conclusion that when the drainage is directed away from the slope, erosion hazards will be mitigated.

27Finally, Mr. McClure reviewed Section 9 of the COP regarding transportation considerations. He stated that the provided expert information regarding transportation considerations provides that there are no impacting transportation issues as a result of the proposed development. He opined that Section 9.2 relating to piped municipal services received no concerned comments from the appropriate City staff in their review and that no concerns were stated. He added that these are also generally addressed in detail at the site plan face of an application for development.

28Mr. McClure having reviewed and opined on applicable policies in the COP stated that when considered altogether, the proposal having shown conformance with applicable policies thus conforms with the COP.

29Mr. McClure in conclusion opined that the proposed ZBA having demonstrated regard for the provincial interest, consistency with the PPS and conformity with the COP with capacity to successfully carry forward and progress through site plan considerations represents good land use planning.

30The Tribunal notes that the expert opinion evidence of Mr. McClure was unopposed and uncontroverted. Having regard for all materials that were before the approving authority and specifically the City’s staff report and analysis and the oral testimony of Mr. McClure, the Tribunal finds that the ZBA meets the four statutory tests as it has regard for the provincial interest, is consistent with the PPS, conforms with the COP and represents good land use planning.

31THE TRIBUNAL ORDERS that the appeal against By-law No. 50-88 of the City of St. Thomas is allowed in part and By-law No. 50-88 is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal orders that the appeal is dismissed.

32The directions in this decision are so ordered.

“Jatinder Bhullar”

JATINDER BHULLAR

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-21-001138 – Attachment 1