Skydevco Inc. v. Guelph (City), 2022 CanLII 21230

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 16, 2022

CASE NO(S).: OLT-22-001969 (Formerly) PL200367

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

Appellant: Skydevco Inc.

Subject: Request to amend the Official Plan - Refusal of request by City of Guelph

Existing Designation: “Institution or office”

Proposed Designated: “Mixed Use 1”

Purpose: To permit the development of a 25 storey mixed use building with retail and office space together with 180 apartment units

Property Address/Description: 70 Fountain Street East

Municipality: City of Guelph

Approval Authority File No.: OZS19-015

OLT Case No.: OLT-22-001969

Legacy Case No.: PL200367

OLT Lead Case No.: OLT-22-001969

Legacy Lead Case No.: PL200367

OLT Case Name: Skydevco Inc. v. Guelph (City)

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

Appellant: Skydevco Inc.

Subject: Application amend Zoning By-law No. (1995)-14864 - Refusal of Application by City of Guelph

Existing Zoning: “Central Business District” (CBD. 1-1)

Proposed Zoning: Site – specific - “Downtown” (D.1)

Purpose: To permit the development of a 25 storey mixed use building with retail and office space together with 180 apartment units

Property Address/Description: 70 Fountain Street East

Municipality: City of Guelph

Municipal File No.: OZS19-015

OLT Case No.: OLT-22-001971

Legacy Case No.: PL200368

OLT Lead Case No.: OLT-22-001969

Legacy Lead Case No.: PL200367

Heard: January 31 to February 16, 2022 and February 18, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Skydevco Inc. (“Applicant”)	E. Costello, J. Fraser
City of Guelph (“City” / “Guelph”)	A. Thornton

DECISION DELIVERED BY S. TOUSAW AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The history of downtown Guelph dates back almost 200 years, when John Galt of the Canada Company laid out a plan of streets, blocks and public spaces in a radial pattern commencing at a bend in the Speed River. Evidence of John Galt's vision persists today, both on the ground and in the City's Official Plan. This case analyses the merits and challenges of planning for office uses in the downtown, and examines the important balance of cultural heritage protection with today’s necessary and desired intensification.

2The Applicant appealed to the Tribunal on the City’s refusal of applications for Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) affecting 70 Fountain Street East and 78 Farquhar Street (together, the “site”). During 2020 and 2021, further discussions between the Parties led to the Applicant submitting a revised development plan dated October 22, 2021, which was not accepted by the City and became the subject of this hearing.

3After thorough consideration of the valid positions on both sides of the issues, the Tribunal finds that a tall, mixed-use development at this site is appropriate if tempered by a maximum height of 16 storeys and subject to certain technical requirements.

4On a preliminary procedural matter raised by the Applicant, the Tribunal directed the City to disclose the full report relied upon by the City in its review of servicing capacity, from which only an excerpt had been included in Exhibit 2 (“Ex.”) – Consolidated Witness Statements. The City released the full document which was then marked as Ex. 6 – Baker District Redevelopment Wastewater Model Results Summary.

EVIDENCE

5With reference to extensive witness statements, visual evidence and related exhibits, the Tribunal received thorough oral testimony from 15 witnesses, each of whom was affirmed and qualified to provide opinion evidence in their field of expertise as listed below. The findings throughout this Decision result from the evidence on both sides of the issues from these professionals:

For the Applicant

• Edward Thomas: architecture
• Owen Scott: heritage planning and landscape architecture
• Kevin Muir: land use planning and urban design
• Rajan Philips: transportation engineering
• Craig Kelly: hydrogeology
• Shelley Forwell: civil engineering
• Douglas Annand: land use economics
• Hugh Handy: land use planning

For the City

• Katie Nasswetter: land use planning
• David de Groot: land use planning and urban design
• Mary Angelo: services engineering
• Stephen Robinson: cultural heritage planning
• Scott Cousins: hydrogeology
• Ralph Bond: parking and transportation demand management
• Jamie Cook: land use economics.

TERMINOLOGY

6This Decision adopts the compass directions, used by most witnesses, referring to Wyndham Street (“Wyndham”) as running north-south and the streets that cross Wyndham as running east-west.

7To clarify what is meant by “downtown”, the Tribunal utilizes the following distinctions: “Downtown” (with a capital “D”) refers to the area covered by the Downtown Secondary Plan, Schedule C (Ex. 1-1, p. 463); “old downtown” or “historic downtown” refer to the Character Area identified as “Historic Street-Based Area” in the Downtown Streetscape Manual & Built Form Standards (Ex. 1-3, p. 389) which also appears in the Cultural Heritage Action Plan (Ex. 1-3, p. 727); and “downtown” or “core area” (without capital letters) involve their normal or plain meaning.

8The Goderich-Exeter Railway corridor (“railway”) generally divides the Downtown in half, resulting in geographic references to “north downtown” and “south downtown.”

9Floor areas and other calculations used in this Decision are occasionally rounded for ease of reference.

SITE AND PROPOSAL

10This site of 0.213 hectares (“ha”) is located on the east side of Wyndham between Farquhar Street (“Farquhar”) to the north and Fountain Street (“Fountain”) to the south, resulting in frontage on three streets. The site slopes downwards to the south and southeast such that the existing office building, built in 1957, is two storeys high facing Farquhar and three storeys high facing Fountain.

11The site is located one short block south of the railway. Surrounding uses include: to the north, the historic but currently unused Drill Hall across Farquhar, and to the east of the Drill Hall, a drop-off and parking area associated with Guelph Central Station for rail and bus service (“transit station”) located on the north side of the railway; to the east, a few low-rise houses including the City’s believed oldest dwelling next door at 81 Farquhar; to the south, across Fountain, a one-storey office building with surface parking; to the southwest, kitty-corner across Wyndham and Fountain, a large surface parking lot owned by the City; to the west, across Wyndham, the City Police Station; and to the northwest, kitty-corner across Wyndham and Farquhar, the substantial and historic Armoury building.

12The City’s Official Plan (“OP”), through its detailed Downtown Secondary Plan (“DSP”), designates the site as “Institutional or Office” (“IO”) on Schedule C, and sets a building height range of “3-6 storeys” on Schedule D. The City’s Zoning By-law No. 1995-14864 (“ZBL”) zones the site as “Central Business District (CBD.1-1)” (“CBD.1-1”) permitting a range of uses, including retail, institutional and office uses, and dwelling units above a commercial use, all within a building not exceeding 6 storeys in height.

13The Applicant seeks an OPA and ZBA to permit and reflect the site and building design contained in Appendix C (“design”) to Mr. Thomas’ witness statement (Ex. 2, p. 78). The 19-storey building would occupy the entire site with a 4-storey podium, being a 3-storey streetwall, stepping back to the fourth storey, and topped with a centrally positioned tower comprising storeys 5 through 19. The building would front primarily onto Wyndham and Farquhar, with 360 square metres (“sq m”) of double-height retail space facing Wyndham, and an office and resident entrance facing Farquhar. Office space on levels 1 and 4 would total 1,596 sq m. A tower floor plate of 915 sq m would accommodate 10 rental apartments on each level, for a total of 150 units of varying sizes (one, one+, and two-bedroom units). Parking for 148 vehicles would be provided in two separate areas, with the two levels below grade accessed from Fountain, and two levels above grade, being storeys 2 and 3, accessed from Farquhar.

MAIN ISSUES

14From the Parties’ evidence and submissions, the primary questions to address can be summarized as follows:

• Should the site be retained for its potential use as a major office?
• What is the appropriate building height for this site within the Downtown?
• Is the design compatible with the cultural heritage character of the site and area?
• Is sufficient on-site parking provided for the mix of uses?
• Does the sanitary sewer contain sufficient capacity for this site design?

15The Applicant submits that neither an office nor a major office is mandated on this site by the DSP or the ZBL. This site should not be prevented from enhancing the downtown with intensification, jobs and residents on a prime site adjacent to transit, given that the market demand is weak for dedicated office uses, and offices are permitted throughout the mixed-use designations of Downtown. The existing, dated office on site will be replaced with new office space of similar area and complemented with street-level retail or food establishments, and with the apartments above strengthening the downtown’s live-work connections. To enable additional office space in future, the parking areas on levels 2 and 3 are designed for conversion to office, should the demand exist and provided that a reduced parking supply is supported by either lower automobile use or offsite options at that time.

16In support of 19 storeys, the Applicant argues that the downtown area south of the railway is separated from the north side’s lower building façades, and the narrow tower design has no negative effect on protected or other views to the Basilica of Our Lady Immaculate (“Basilica”) situated above and well to the west of this site. Similar tall buildings of 18 storeys exist to the east of the site, and are permitted to the south of the site, which together support appropriate intensification including residential uses in south downtown.

17The Applicant notes that the site is neither designated nor within a heritage character area under the Ontario Heritage Act (“OHA”), but that the design includes re-using and replicating the façade elements of the existing building on the new podium, in part to recognize the listing of the existing building as holding heritage interest, and to provide an attractive streetwall. The Farquhar streetwall of the podium will face the original area cited as Market Ground to the north, which today is divided by the railway and Wyndham and occupied by substantial institutional buildings. Appropriate stepbacks of the east wall of the building and the setback of the tower provide suitable transition to the designated heritage house at 81 Farquhar.

18To the technical matters, the Applicant submits that this site’s location next to rail and bus transit, and easy pedestrian access to the main downtown area north of the railway, call for reduced parking rates. A push towards lower automobile ownership or use will promote a live-work community accessed by walking, cycling, transit and car-sharing, all in support of reducing greenhouse gas emissions. To the servicing issue, the increase to an existing capacity issue is marginal and the City’s plans will address such capacity for the larger area over time. As necessary, servicing can be fully addressed through the process of site plan approval for the site.

19The City submits that the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”) supports retaining this site in office use and retaining its potential for a future major office under the DSP’s IO designation. The site’s prime location calls for an office use, being adjacent to transit and centrally located with convenient pedestrian access to commercial and government uses to the north and future housing intensification to the south. Few prime opportunities exist for major offices in the Downtown and this site’s potential for such use should not be removed by this mixed-use development.

20The City argues that 19 storeys of height on this site is inconsistent with the DSP’s intentions of placing tall buildings at the Downtown’s periphery, with declining height approaching the historic core. Such a tall building here imposes a disruption to views to and from the historic core and results in undesirable shadowing on important services and historic buildings such as the Train Station. “Too tall and too close” summarizes the City’s position on height.

21The City submits that cultural heritage within the Downtown is negatively affected by height as noted above, and by podium design. Further design considerations are necessary to fully respect the heritage dwelling at 81 Farquhar and to address the historic Market Ground and low- to mid-rise heritage characteristics to the north.

22On parking, the City contends that more should be provided on site, and that the suggested, potential, future conversion to more office space will not be possible given the further loss of parking and too great a demand to accommodate parking on City lots. To servicing capacity, the City requests a Holding provision to fully address necessary services as is commonly applied to such development sites.

LEGISLATIVE TESTS

23In making a decision under the Planning Act (“Act”) with respect to these appeals, the Tribunal must have regard to matters of provincial interest as set out in s. 2. Under s. 2.1(1), the Tribunal must also have regard to any decision of City Council made under the Act that relates to the same planning matter, and the information considered by City Council in making those decisions.

24Under s. 3(5), the Tribunal’s decision must conform with or not conflict with an applicable provincial plan, being A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”) in effect at the date of the decision. Also under s. 3(5), the Tribunal’s Decision must be consistent with the provincial interests expressed in policy statements, being the Provincial Policy Statement, 2020 (“PPS”) in effect at the date of this decision.

25The Parties agree that, because an OPA constitutes a change to an OP, such OPA need not conform fully with the OP, but should generally fit with the OP’s vision and intentions. Here, s. 1.3.14 of the OP sets out matters to consider for an OPA. Under s. 24(1) of the Act, the ZBA must conform with the OP, including reference to the OPA if approved.

CONTEXTUAL FINDINGS

26Before delving into the major issues, the Tribunal’s general findings of physical and high-level policy context are summarized here. These findings establish the setting for further analysis of the issues, and their explanation here avoids repetition later given their broad applicability in this case.

27South downtown is a reality. It is physically, and somewhat functionally, divided from north downtown by the railway, but is also differentiated by lot pattern, land use and built form.

28The Armoury and the Drill Hall, located immediately south of the railway, represent the transition from north to south downtown along Wyndham. These buildings are located on parts of the Market Ground and reflect the area’s history akin to north downtown. However, they also share characteristics of south downtown owing to their separation by the railway, stand-alone design, and the relative absence of an active streetwall, given the disruption to their frontage resulting from the Wyndham underpass.

29This site on Wyndham, in south downtown, is the closest renewal property to the core of old downtown. Similarly, it is the closest property for renewal to the transit station. While not an official gateway property in the Downtown, this site on a designated Main Street presents as a gateway property immediately south of the Wyndham underpass that enters old downtown.

30The old downtown is a candidate cultural heritage landscape owing in part to the heritage attributes of its buildings, streetwalls and John Galt’s plan. However, old downtown is not designated under the OHA, nor has the requisite heritage study been commenced in support of eventual designation. Certain individual buildings designated under the OHA and the general heritage attributes of the old downtown are the features of relevance to this case.

31Market Ground is a valid heritage consideration given its origins on John Galt’s plan. However, Market Ground is neither listed nor designated under the OHA and has evolved substantially from its potential original intentions. It has been divided north-south by the railway, divided east-west by Wyndham, and substantially built out for public uses traditional to town centres. In the City’s Downtown Streetscape Manual and Built Form Standards (“BFS”), the area of Market Ground is part of the Historic Street-Based Area, but the vicinity of the Armoury and the Drill Hall is also a Regeneration Area, as is this site. This development site will be evaluated against what Market Ground is today.

32This site is prime for considering redevelopment and higher height given its unique location just outside of the historic downtown, on the "doorstep" of the transit station, contiguous with blocks to the south planned for tall buildings, and not distant from existing tall buildings to the east.

33The City’s Downtown constitutes a Major Transit Station Area (“MTSA”) and an Urban Growth Centre (“UGC”) under the GP. While the GP defines major office as a freestanding building of approximately 4,000 sq m or greater, or some 200 jobs or more, the Tribunal accepts Mr. Cook’s use of approximately half that size as substantial office space for downtown Guelph.

34The PPS, GP, and of heightened importance for this case, the OP and DSP, call for mixed-use development and compatible intensification for complete communities, especially in the downtown and MTSA.

Major Office

35This land use issue is a “close race.” Both sides present strong, balanced, and reasonable positions. The Tribunal finds that current opportunity, in the form of mixed-use, out-paces future potential, in the form of a stand-alone office. While the site is suitable for either use, the application before the Tribunal satisfies all relevant policy, including planning for offices, and does not offend policies pertaining to office or major office uses.

36For the office component, Mr. Thomas emphasizes his desire to design adaptive spaces that enable future changes in use. While the immediate design includes 1,600 sq m of office space on levels 1 and 4, parking levels 2 and 3 are designed for potential future conversion to office use of approximately 4,000 sq m, for a total potential office area of 5,600 sq m. The ceiling height and non-sloping floors of these parking storeys would enable conversion, recognizing that further engineering would be required to replace the access ramps, and that such conversion would be reliant on reduced parking demand or suitable alternative parking arrangements. Mr. Thomas explains that the large floor plate of these floors in the podium are better suited to future office, and unlikely to be the source of future residential demand, given the difficulty complying with natural light and window requirements for apartments.

37The policy regime is examined first, followed by the economic analysis.

38The PPS does not address major office uses specifically but does speak to sustaining healthy, liveable communities by “accommodating an appropriate affordable and market-based range and mix of residential types, … employment, … and other uses to meet long-term needs” (s. 1.1.1 b). The “market-based range and mix” is exemplified by the design for this site. The Applicant seeks to respond to market demands, which the economic witnesses agree is relatively weak for office uses and very strong for residential, especially rental housing. Consistent with this market while also planning ahead, the design provides a sizeable office area, with expansion potential in future, along with the needed residential apartments.

39The City argues, based on the opinion of Ms. Nasswetter and others, that its OP and DSP satisfy s. 1.1.3.3 of the PPS by identifying “appropriate locations … for transit supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment …” and also satisfy s. 1.3.1 a) with “an appropriate mix and range of employment, institutional, and broader mixed uses to meet long-term needs.” The DSP identifies specific locations at the periphery of the Downtown for residential intensification while also designating lands for office and institutional uses. While the Tribunal agrees that the existing DSP is not lacking per the PPS, it finds that this site design is also consistent with those policies. The focus on housing in s. 1.4 of the PPS and “prioritizing intensification … in proximity to transit” (s. 1.4.3 e) are reflected by this OPA.

40The GP requires the Downtown to be planned as a “high-density major employment centre” (s. 2.2.3 c) and “to accommodate significant population and employment growth” (s. 2.2.3 d). Transit is to be supported by “a diverse mix of uses, including additional residential units” (s. 2.2.4.9). The GP goes on to require “sufficient land, in appropriate locations, for a variety of employment” (s. 2.2.5 b) and directs “major office and appropriate major institutional development” to the MTSA.

41Although the terminology is different in the DSP, it does encompass major office uses in the IO and Mixed Use (“MU”) designations. As described earlier, while the DSP generally addresses the GP requirements, so too does the OPA. The GP directs major office uses to the Downtown due to transit availability, but does not mandate a specific designation for major office. The DSP provides ample opportunity for office development. This site’s office, commercial, and residential uses will reflect the GP’s direction for mixed-uses in pursuit of a complete community, especially when adjacent to a transit station.

42The OP, s. 2, sets out principles including “a vital downtown core and commitment to mixed-use and higher density development” and strategic goals including “an appropriate range and mix of employment opportunities, … housing, … and other land uses … to meet current and projected needs” (2.2.1 b). The Downtown is to be “a major area for investment, employment and residential uses” (s. 2.2.7 a). The OP reflects the GP requirements noted above by planning the Downtown “as a high density major employment area” (s. 3.8.4 ii) and for “residential development, … major offices, … to promote live/work opportunities and economic vitality” (s. 3.8.4 iii). Major office and major institutional uses are similarly directed primarily to the Downtown under the Employment Lands policies (s. 3.14 vi).

43The DSP expounds on the foregoing OP directions for Downtown. It envisions the Downtown becoming a “showcase for high-density, sustainable living” (s. 11.1.2.1). “South of the CN tracks, new buildings will take a variety of forms …” (ibid.). The principles for Downtown (s. 11.1.2.2) include “more people” (s. 2) by “accommodating a significant share of Guelph’s population growth” (s. 2a), balancing “employment uses with compact residential development and live/work opportunities” (s. 2b); ensuring “continued economic vitality” as the “city’s centre for major office uses” (s. 3); and mutual support between transit and employment and residential uses (s. 6). Again, the Tribunal finds the mixed-use proposed here through the OPA to be acceptable and in keeping with the vision and principles of the OP and DSP, and to not offend the detailed policies of those documents.

44In the DSP, this site containing an existing 2,500 sq m office building is designated as IO, and the same designation applies to the nearby institutional uses including the Police Station, Armoury, Old Town Hall and City Hall. The DSP (s. 11.1.7.5) addresses the IO designation, describing it as including properties “in the heart of Downtown” occupied by significant public uses or an office building. It also notes the inclusion of “properties close to Guelph Central Station where a concentration of major office and institutional uses would optimize use of the terminal.” Permitted uses in the IO designation include offices, entertainment and recreation, community services, all manner of institutional uses, hotels, parks, and other employment uses if consistent with the DSP and compatible in the area. Retail and service uses and public parking are permitted if secondary to a main institutional or office use on a site.

45The DSP (s. 11.1.7.5.4) makes special mention of the block containing this site. Unlike other IO buildings that are expected to remain for many years, the areas between Farquhar and Fountain are cited as holding “greater potential for redevelopment and a desire for improved conditions on Wyndham.” The Tribunal finds the design for this site to constitute appropriate redevelopment, by including office space and providing a retail frontage on Wyndham. Building height and character are addressed later, but suffice to note here that the podium appears to be everything the DSP envisions for this site related to permitted uses.

46On the DSP Schedule C, Land Use Plan, apart from the IO designation, much of the rest of Downtown is designated MU1 or MU2, other than the more peripheral residential areas. The OPA seeks a MU designation for this site similar to the blocks to its south on both sides of Wyndham. Of relevance here, is that the MU designations across the Downtown permit offices, which would include major offices, and also permit residential uses above street-level commercial uses. Mr. Cook reports that several IO sites have potential for future major office (Ex. 2, p. 1066) and acknowledges that additional potential exists across the MU designations, although somewhat constrained by smaller property sizes.

47The Tribunal finds the widespread permission for offices to support this OPA: the land uses proposed on site are no different than permitted on a majority of the Downtown area; the opportunity for office space is abundant throughout Downtown even without this site being retained for the possibility of a stand-alone major office; and this site will contribute sizeable office area from the outset, with potential for substantially more in future.

48The City seeks to preserve this site within the IO designation to retain its office use of 2,500 sq m and its potential to be redeveloped into a 6-storey office of some 7,700 sq m. The design is found to reasonably respond to the City’s preference by providing 1,600 sq m of initial office space and the potential, albeit likely well into the future, of a further 4,000 sq m, for a potential total office space of 5,600 sq m. The initial office area is smaller than, but a substantial portion of, the site’s current office space, and approaches Mr. Cook’s threshold of 2,000 sq m for substantial office space. The potential future conversion would result in major office space on this site, although not in a stand-alone building per the GP definition. As noted earlier, the GP directs stand-alone offices to downtowns, as is generally facilitated by the existing DSP, but neither the GP nor the DSP mandates that this site, as an example, be restricted to such use.

49For the City, Mr. Bond foresees that the office expansion “would take a miracle” given so little parking would be left for the site’s residents and office workers. At the same time, Mr. Cook acknowledges that a stand-alone major office proposal for this site may be a decade or more away given the low demand and the available supply, especially with the imminent exodus to a suburban location of a major office use from the Downtown. To a question from the Tribunal, Mr. Cook estimates that, based on a typical 1,000 sq m office floor plate, two floors of new office space will be required annually in the Downtown to achieve the 2051 target. Such uses can locate on a variety of potential sites within the IO or MU designations.

50This site’s design presents an opportunity to continue with office uses while maintaining some potential for space exceeding the size of a major office. Over the next decade or two, for example, the Tribunal does not see the potential conversion as substantially less likely than a proposal for a major office on this site. If the market exists for major office space, the Applicant can achieve such by addressing tenant parking, the demand for which may continue to decline with increased transit use or if incentivized by the landlord. This site will already embody a financial and physical investment in potential office space as an incentive for the owner to act.

51Mr. Cook estimates that the employment growth to 2051 for offices in the Downtown is 1,200 jobs, and for major offices is 1,700 jobs, after taking into account such factors as suburban office locations, e-commerce, and work-from-home trends that reduce office demand in the Downtown. He estimates that a 6-storey office at 60% coverage on this site could amount to 7,700 sq m of office space. Using 30 sq m per employee, such building could accommodate 257 jobs.

52Again, the Tribunal finds that the design produces reasonable results when compared to the City’s preference for a major office. The initial office space of 1,600 sq m will support 53 jobs, being not substantially fewer than the calculated 67 to 83 jobs in the existing office on the site (some evidence discrepancy whether it is 2,000 sq m or 2,500 sq m leasable space). Should the design conversion to more office occur over the medium- to long-term, being the same period Mr. Cook sees as necessary for a major office to occur on site, then the total 5,600 sq m office space would support 187 jobs, being 73% of the jobs in the City’s referenced 6-storey option.

53For the urban growth centre, being the Downtown, the GP directs a minimum density target of 150 residents and jobs per ha. Mr. Annand estimates that the retail and office space of the site will provide 93 jobs here, along with 237 residents occupying the 150 apartments, for a total of 330 residents and jobs. Mr. Cook calculates a target of 200 people and jobs per ha by 2051, being higher than the GP, and close to double the 2011 density of 111 people and jobs per ha. In the Tribunal’s view, if this 0.2 ha site accounted for 1 full ha of the Downtown when considering abutting streets and related public space, the design’s 330 residents and jobs represent a healthy contribution to the 2051 overall targeted density of 200 per ha.

54Mr. Cook opines that this mixed-use development is not required because ample lands exist Downtown to meet the population targets. The Tribunal accepts Mr. Handy’s reference to the target being a minimum, and whether the target is exceeded or not, this site will contribute needed rental housing downtown.

55Having carefully reviewed all of the many policies referred to by the Parties in the context of this site and proposed design, the Tribunal concludes that this site need not be retained for a potential future major office use, and that a mixed-use, including office space, satisfies all legislative requirements.

Height

56The issue of height relates to the proposed tower, being storeys 5 through 19 of the design. Height issues are not raised in relation to the 4-storey podium, except as relate to heritage matters addressed later. Tower height is addressed in relation to protected views to the Basilica, the effect of shadowing, and proximity to the historic core. The Tribunal concludes that a maximum height of 16 storeys is appropriate for this site and design, being 3 storeys shorter than proposed by the Applicant.

57The OP requires new development to respect the City’s character and “sense of place” and to retain the qualities that set Guelph apart from neighbouring cities (s. 2.1 and 2.1a). An objective of the DSP is to “strategically locate and articulate tall buildings to minimize impacts on historic areas and preserve important public views” (s. 11.1.2.2.1e). The DSP establishes permitted height ranges on Schedule D, with its intent to maintain the “predominant mid-rise built form of Downtown … with taller buildings restricted to strategic locations, including gateways that act as anchors for key streets” (s. 11.1.7.2.1). Such locations for taller buildings are considered to have “minimal direct impacts” to neighbourhoods and the historic core and are outside protected public view corridors. Taller buildings are required to moderate their perceived mass and shadow impacts, transition appropriately to surrounding lower buildings, and “contribute to a varied skyline in which the [Basilica] is most prominent” (s. 11.1.7.2.3h).

58There is no dispute that tall buildings must be lower than the elevation of the Basilica’s highest points, and that this site is not within a protected view corridor on Schedule D to the DSP or on Map 63 of the ZBL. The Tribunal is satisfied from the visual evidence that few public locations to the south and east of the site enable simultaneous views (i.e., without rotating view direction) of both the designed tower on this site and the Basilica. Such views that may exist, are quickly blocked by intervening buildings or vegetation as the viewing person moves along a street. Similarly, northward views from the Wyndham – Wellington intersection that see the Basilica today will be affected by future tall buildings permitted in that area. The Tribunal finds that this site design has virtually no effect, and therefore acceptable impacts, on important public views outside view corridors, and thus maintains the prominence of the Basilica.

59Mr. Thomas completed a shadow study in accordance with the City’s requirements, and found two criteria exceedances: a mid-day shadow on the north sidewalk of Farquhar; and a morning shadow on the Train Station. The City also notes the shadow on Old Town Hall. The site’s tower is the focus here given that the podium is found to cast shadows very similar to a permitted as-of-right building, including toward 81 Farquhar. Mr. Thomas advises that a slender tower with a more square floorplate, as designed here, casts a narrow shadow that moves relatively quickly.

60While overall height is addressed below, the Tribunal finds the projected equinox shadowing to be acceptable. The shadow exceedance on and just to the north side of Farquhar is minor and affects an area used for transit access and related parking. Shadowing of the Drill Hall generally affects only its rear wall and ceases by mid-morning. Shadowing of Old Town Hall would occur for only a brief morning period around 8 a.m. Full shadowing of the Train Station building would occur around 10 a.m., with partial to no building shadowing before and after that. The Tribunal accepts that the Train Station itself includes a south-side overhang that provides some shadowing of its south wall.

61In arriving at an appropriate tower height, the Tribunal makes the following contextual findings. The DSP envisions mid-rise buildings within the historic downtown and tall buildings outside that area and generally at more peripheral locations. This site is outside the historic downtown and adjacent to a part of the original Market Ground now designated and used for transit. The Wyndham underpass marks a person’s perception of entering or exiting the historic downtown. A tall building here will maintain that distinction, while also providing a podium that complements the old downtown’s attractive streetscapes with a streetwall that recalls the existing building but is more inviting, accessible, and service-oriented. Subject to an acceptable overall height, the site and design reflect the DSP’s built form requirements: a strategic location; an anchor for a key street; minimal impacts to the historic core; not within a protected view corridor nor detract from the prominence of the Basilica; and acceptable massing and shadow based on tower floor size and squareness (s. 11.1.7.2.1 and 3).

62Of particular influence to the Tribunal are the visual exhibits referred to by both Parties illustrating the views to this site from certain locations within the old downtown (Ex. 2, p. 1095 – p. 1110). Views toward this site will also capture views to the existing and anticipated tall buildings in south downtown. Buildings that are closer to the viewer will naturally appear somewhat taller than similarly sized buildings further away. Mr. de Groot confirms that the views to existing and permitted building heights per the DSP, when “eyed” over to this site, account for a substantial portion of the proposed tower.

63The Tribunal does not find this site’s design out of place in these views. It is one of several tall buildings, all in south downtown or toward the river on Carden Street and MacDonnell Street. The current review of the DSP contemplates 10-storey buildings on both sides of Wyndham in the blocks immediately south of this site across Fountain, and continued permission for 18-storey buildings in the next blocks south, being the north side of Wellington. Pedestrians enjoying the heritage character of downtown Guelph will periodically see tall buildings outside the old downtown to the north, east and south. In such context, height differentiates the new from the old, the modern from the heritage. With attention to the podium, height gradations and built form, such development can achieve compatibility with the existing urban area as called for by the DSP. For the Tribunal, the conceptual rendering from a “bird’s eye view” (Ex. 2, p. 798) displays the contextual fit of a tall building within the redeveloping south downtown, at the entrance to old downtown along Wyndham, being a Downtown Main Street.

64These visual and contextual findings lead to the Tribunal’s acceptance of a tall building on this site, but to be tempered by a slightly lower height to respect the DSP’s intention of declining heights towards the old downtown’s mid-rise heritage attributes. The Tribunal finds that a 16-storey building, including the relatively slender tower in the Applicant’s design, results in a sufficient step-down of height from the area’s 18-storey blocks, and lowers the height appearance of this closer tower to be more visually similar in height with the tall buildings beyond it, all while optimizing intensification, housing and office space next to the transit station.

65Some might question how three storeys at the top of a tall building can make a difference. Here it does. A limit of 16 storeys will reflect the height gradations downwards with proximity to old downtown, reduce the building’s presence when viewed from north of the railway, and give viewers the impression that it is similar but not taller than the area’s other tall buildings.

Heritage Character

66Matters of compatibility with heritage resources are wound throughout this Decision, including findings of: the mid-rise, continuous streetscape of the historic core; contextual differences in south downtown; maintaining the prominence of the Basilica; shadowing, with a focus on the Train Station; the recognition of Market Ground, although not officially identified as a cultural heritage landscape; and designated heritage buildings in the vicinity of the site. The remaining heritage considerations relate to the site’s relationship with its immediate surroundings.

67The PPS and GP call for a development design to demonstrate that it conserves the attributes of adjacent heritage properties in support of a sense of place (e.g., PPS, s. 2.6.3; GP, s. 4.2.7.1). The DSP elaborates by seeking this stretch of Wyndham to become one of the “main commercial streets” (s. 11.1.7e), ensuring that “development respects the character of downtown’s historic fabric (s. 11.1.7g), including an active frontage, continuous streetwall, and taller ground floor heights (s. 11.1.7.3.4). Such provisions are engaged and strengthened by the IO designation’s reference to “greater potential for redevelopment” and “improved conditions” for the block containing this site (s. 11.1.7.5.4).

68The OP employs the common and accepted definition of “compatible” which means “development or redevelopment which may not necessarily be the same as, or similar to, the existing development, but can co-exist with the surrounding area without unacceptable adverse impact.”

69The design here is found to frame and activate Wyndham, as well as Farquhar and Fountain, and to represent a desirable and complementary streetwall facing Market Ground and the heritage buildings it contains. The podium’s 3-storey streetwall replicates the existing building’s façade, displays active street-level commercial uses, and offers an outdoor amenity terrace at the stepback of the fourth storey. These features reflect and respect the streetwall character and height of old downtown, and promote a high standard for further redevelopment in south downtown.

70The Tribunal finds the podium scale to mirror that of the Armoury, and to also be compatible with the height and bulk of the Police Station and the Drill Hall. The podium’s display of design and materials from the existing building, and the Applicant’s proposed commemoration efforts on or inside the building, adequately conserve the heritage attributes of the existing, heritage-listed building.

71To the designated heritage dwelling at 81 Farquhar, the tower setback and the fourth storey stepback result in a 3-storey building beside this 2-storey house. The podium steps down to just 1-storey in height adjacent to the rear yard of the dwelling. The Tribunal accepts the Applicant’s evidence that these features adequately respect and conserve the dwelling’s heritage attributes. The Tribunal accepts Mr. Robinson’s position that the design’s east wall facing 81 Farquhar may warrant further discussion on appearance details and materials, which can occur during final design approval.

72While not an influence to this Decision, the Tribunal observes that 81 Farquhar is in need of restoration, and acknowledges the advantage of the Applicant’s willingness to be financially involved in such work.

73Overall, the visual perspective of the “bird’s eye view” (Ex. 2, p. 798) again illustrates the acceptable fit of the podium and relatively narrow tower in relation to adjacent heritage buildings, the old downtown to the north, the highly active spaces of Market Ground, including the transit station, and nearby tall buildings to the east. Such contextual fit will only improve with the somewhat lower height imposed by this Decision and the future taller buildings that are anticipated to the south.

Parking

74The City’s parking issues focussed on the shared parking spaces for commercial and office uses, and the overall parking rate for the office space. The Tribunal accepts the evidence that the residential parking rate of 0.81 spaces per unit is appropriate to support transit use and, for some 20% of unit occupants, encourages living without owning an automobile.

75With the reduced height, the resulting reduction in apartment units will free up parking spaces for either a reduced parking floor area, or more likely, additional parking for the commercial and office space, all to be determined between the Parties. Of further note, is the increased potential for the future office conversion with a lower requirement for residential parking now.

Sanitary Sewer

76The engineering witnesses generally agree that a sanitary sewer capacity issue occurs during wet weather conditions in the sewer along Wyndham. Rain events can lead to the sanitary sewer filling beyond capacity in certain sections such that the waste level rises within standpipes.

77The City requests that a Holding symbol, as utilized in such situations, be applied to the ZBA such that this issue is addressed to the City’s satisfaction before the Holding is lifted and development proceeds. The Applicant contends that such issue can be addressed through site plan approval either through studies that confirm or refute the issue or by on-site measures to regulate flows when necessary.

78The City’s recent information from studies associated with the Baker District Redevelopment is that this sanitary sewer downstream from the Applicant’s site operates at 9% capacity during dry weather conditions but can exceed full capacity during wet weather conditions. Ms. Forewell opines that this substantial difference likely results from eavestrough and foundation drains connected to the sanitary sewer that could be addressed in the short-term rather than at the time of the City’s planned sewer upgrades later this decade. She further opines that a conclusive study has not been completed for this site, and after accounting for the capacity used by the existing building, the net increase from this site can either be accommodated or appropriately addressed.

79The Applicant submits that the City has not met its own requirement for a Holding symbol because the OP requires that the sanitary sewer be “determined to have insufficient capacity to serve the proposed development” (s. 10.5.2i) and such determination relative to this site remains unconfirmed.

80While the Tribunal accepts that, where necessary, servicing issues can be fully addressed through the site plan approval process, it also accepts that here the City has reasonably determined, based on recent information, that a sanitary sewer capacity issue exists that warrants full attention before development proceeds. Mmes. Angelo and Nasswetter explained that the Holding symbol is applied to other properties in the City for the same reason, including the Baker District Redevelopment and the lands to the south of this site along Wyndham. The Tribunal finds that the Holding requirements can be specified in the final ZBA to the satisfaction of both Parties, such that the achievement of requirements can assure the Applicant that the Holding will be lifted.

81On the other technical issue of groundwater protection, the Tribunal notes on the hydrogeologists’ evidence, that impacts are often addressed through studies at the site plan approval stage but that sufficient preliminary groundwater information is required to finalize the design. The Order will leave the details to the Parties such that necessary preliminary information is provided, with details to follow at the appropriate time.

CONCLUSION

82The Tribunal relies on the Applicant’s submissions and evidence in finding that the site and building design for the proposed mixed-use may be approved in principle, subject to final versions of the OPA and ZBA to implement and reflect the design, and subject to the Tribunal’s findings, as influenced by the City’s submissions and evidence, to permit a maximum height of 16 storeys, and subject to Holding for servicing confirmation.

83The resulting design satisfies all statutory tests as contained in the fulsome evidence, including consistency and conformity with key themes related to accommodating office space, compatible height, respect for heritage areas and buildings, and sufficient parking and services. In making this Decision, the Tribunal has had regard to the related decisions of, and the materials considered by, City Council, as contained in the extensive Exhibits.

84The design, as amended by this Decision, enlivens the Downtown’s vision “as a major area for investment, employment and residential uses” (OP s. 2.2.7). As noted earlier, the Tribunal finds that the conceptual rendering from a “bird’s eye view” (Ex. 2, p. 798) displays the contextual fit of a tall building here within the redeveloping south downtown, at the entrance to old downtown along the main street of Wyndham.

85To the City’s focus on the OPA requirements of s. 1.3.14 of the OP, the Tribunal finds as follows, based on the findings and directions of this Decision: conformity with the OP’s strategic directions; consistent or conforms with applicable provincial requirements; suitability of the site; compatible with adjacent land use designations; acceptable need for housing and employment; a feasible market for mixed-use; sufficient area available for office development; sewage impacts to be addressed fully; acceptable financial implications for the City; and respect for all relevant policies of the OP and DSP.

86The requirements below reflect the Tribunal’s acceptance of certain requests from the City should an Interim Order be granted. Other City submissions not addressed here may be pursued through its site plan approval process, including final details for heritage commemoration, wall details adjacent to 81 Farquhar, final Transportation Demand Management (“TDM”) measures, and final groundwater protection measures.

INTERIM ORDER

87The Tribunal Orders that the appeals are allowed in part, and the proposed Amendment to the City of Guelph Official Plan and the proposed Amendment to the City of Guelph Zoning By-law No. 1995-14864 (the “Amendments”) are approved in principle, and a final Order is withheld subject to the following:

• The final form of the Amendments shall closely reflect and require a development in accordance with the site design contained in Exhibit 2, page 79 through page 100, subject to a maximum height of 16 storeys and resulting design alterations, such as parking supply allocated to each use, and any necessary rooftop structures if substantially stepped back.
• The following technical matters shall be addressed at a preliminary level, to the satisfaction of the City:
  • a hydrogeological assessment and necessary mitigation measures;
  • the Applicant’s commitment to necessary TDM measures in support of any reduced parking rates;
  • the Applicant’s commitment to assuring purpose-built rental housing that prevents future conversion to condominium ownership.
• The Zoning By-law Amendment will impose a Holding provision related to acceptable sanitary sewer capacity being achieved (i.e., not exacerbating the existing surcharge under wet weather conditions).
• The Amendments shall not contain provisions for off-site parking or future parking rate reductions, such that a future conversion for additional office space will require planning application(s) at that time.
• Other minor alterations to the design and resulting Amendments may be included on consent of the Parties.

88The Parties are directed to submit the Amendments and confirm compliance with the above Order within six months of the date of this Decision. If unable to comply, the Parties shall provide a written status report by that date and the expected timeframe to completion. A Party may request that the Tribunal convene a Case Management Conference in the event of difficulties satisfying this Interim Order.

89This Member will remain seized to review the Amendments and to consider issuance of the Final Order.

“S. Tousaw”

S. tousaw

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.