Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 23, 2022

CASE NO(S).: OLT-22-002047 (Formerly PL210289)

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

Applicant and Appellant: Jindal Developments Ltd. Subject: Request to amend the Official Plan - Refusal of request by City of Brampton Existing Designation: Residential and Neighbourhood Retail Proposed Designated: High Density Cluster Residential Purpose: To permit residential and commercial development Property Address/Description: 1965-1975 Cottrelle Boulevard Municipality: City of Brampton Approval Authority File No.: C08E08.008 OLT Case No.: OLT-22-002047 Legacy Case No.: PL210289 OLT Lead Case No.: OLT-22-002047 Legacy Lead Case No.: PL210289 OLT Case Name: Jindal Developments Ltd. v. Brampton (City)

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

Applicant and Appellant: Jindal Developments Ltd. Subject: Application to amend Zoning By-law No. 270-2004 - Refusal of Application by City of Brampton Existing Zoning: Commercial Two - Special Section 1851 (C2-1851) Proposed Zoning: R4A(3)-2569 Purpose: To permit apartment building and stacked townhouses Property Address/Description: 1965-1975 Cottrelle Boulevard Municipality: City of Brampton Municipality File No.: C08E08.008 OLT Case No.: OLT-22-002048 Legacy Case No.: PL210290 OLT Lead Case No.: OLT-22-002047 Legacy Lead Case No.: PL210289

Heard: February 14 to February 22, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Jindal Developments Ltd.	Matthew Hodgson
City of Brampton	Steven O'Melia
BramptonMatters	Cynthia Sri Pragash*

DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL

1The Ontario Land Tribunal (“Tribunal”) convened a hearing of the merits respecting Jindal Developments Ltd.’s (“Applicant”) application to redevelop properties located at 1965 – 1975 Cottrelle Boulevard, in the City of Brampton (“City”). The proposed development would allow for the construction of a stepped seven-storey condominium apartment building with 72 residential units, two blocks of stacked townhouses containing 24 residential units and a two-storey office building. The City refused the Applicant’s applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”). The Applicant appealed to the Tribunal pursuant to s. 22(7) and s. 34(11) of the Planning Act (“Act”).

2There are three parties of record all of whom were present at the hearing. There are two registered participants. Azad Goyat submitted a written participant statement, in advance, while Tony Moracci provided the necessary participant witness statement during the course of the hearing. A written statement is also received from Ranjit Saini, a non-registered participant. All statements are considered by the Tribunal in its findings. Several observers were present throughout the hearing.

3BramptonMatters became a registered ratepayers’ association on October 19, 2021. Subsection 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”) allows the Tribunal to “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.” On the consent of all parties, the incorporated ratepayers’ association, BramptonMatters, is substituted for Cynthia Sri Pragash’s existing party status.

4In keeping with s. 7.6 of the Rules, the Tribunal required “that a witness who is not presenting expert evidence to provide a witness statement”. Mr. Goyat and Mr. Moracci submitted the requested witness statements and upon consent of all parties gave non-expert testimony at these proceedings. Ms. Sri Pragash provided a personal witness statement as well as one on behalf of BramptonMatters. Her oral submissions are those representing the registered ratepayers’ association.

KEY ISSUE

5As the Tribunal heard from all parties during the course of the proceeding, it became clear that the key issues with respect to the proposal are:

a. with respect to the City’s representation, it is clear that the subject lands are appropriate for intensification but how much this intensification should be is key. Hence, height, density and uses permitted on the site are the focus of evidence. As the hearing proceeded, the construct of the ZBA that City staff had recommended to the Council was the subject of some debate; and,

b. the ratepayers’ issue is very clear. They simply do not want this form of development to be permitted on the subject lands. They are content with the commercial use permissions remaining or a small enclave of Single Detached Dwellings (“SDD”).

THE WITNESSES

6The Tribunal has the benefit of testimony from eight witnesses. This Decision includes oral testimony and material found in the various expert and lay witness statements (“WS”). The witnesses are as follows:

a. Land Use Planning – Kurt Franklin for the Applicant (WS - Exhibit 2, Tab A and Reply Witness Statement - Exhibit 2, Tab B), Shelby Swinfield, City Planner under subpoena (Staff Planning Report - Exhibit 2, Tab 9) and Mark Dorfman (WS - Exhibit 2, Tab E). All three are qualified to give expert evidence in the discipline of Land Use Planning.

b. Economic Market Analysis – Sameer Patel (WS - Exhibit 2, Tab C) is qualified to give expert opinion evidence in the discipline of Economic Market Analysis.

c. Traffic Engineering and Transportation Planning – William Maria (WS - Exhibit 2, Tab D) is qualified to give expert evidence in the disciplines of Transportation Planning, Traffic Engineering and Site Traffic Analysis.

d. Resident Testimony - Ms. Sri Pragash on behalf of BramptonMatters (WS - Exhibit 3), Mr. Moracci (WS - Exhibit 6) and Mr. Goyat (WS - Exhibit 5). All are area residents and are not qualified to give expert opinion evidence in any of the related relevant disciplines.

SITE AND AREA ANALYSIS

7The entire parcel has a total site area of approximately 1.8 hectares (“ha”) and the proposed application represents the second phase of a development located on the southwest corner of Cottrelle Boulevard and McVean Drive. Phase 1 is the home of an existing commercial area known as Valley Creek Plaza. It consists of three commercial buildings and surface parking.

8The portion of the entire property that is the subject of this appeal (“subject lands”) is vacant, is approximately 0.79 ha in area, and has a frontage on Cottrelle Boulevard of approximately 71.31 metres (“m”).

9Cottrelle Boulevard is designated as a collector road and McVean Drive is designated as a minor arterial road.

10Land uses surrounding the subject lands are: south and west – two-storey SDDs, east – existing commercial uses, and to the north – two-storey SDD and the Calderstone Middle School.

BACKGROUND AND PROPOSED DEVELOPMENT

11Suffice it to say the matter has an extensive history. A brief overview is as follows:

a. subsequent to a pre-application consultation meeting with City staff, an application for an OPA and ZBA were submitted in May 2018. The proposal at that time consisted of a three-storey, mixed-use building consisting of retail and office uses on the ground floor and residential uses above.

b. requisite studies and reports were submitted with the application, which was deemed complete later in May 2018.

c. a first public meeting was held in July 2018, which provided considerable feedback from area residents. This initial proposal was also the subject of a review by the City’s Urban Design Review Panel (“UDRP”). All comments were taken into account by both the Applicant and City staff, which precipitated considerable change to the initial proposed development.

d. in response to the comments, the Applicant submitted a revised proposal, which was a complete redesign. It included a seven-storey residential building fronting on Cottrelle Boulevard, three-storey stacked townhouses on the southern portion and a two-storey office building at the southeast corner of the subject lands. In July 2020, a second public meeting was held.

e. a comprehensive report by City staff was completed recommending approval of the revised proposal. This report was submitted to the City’s Planning and Development Committee in March 2021. In a recorded vote, Committee members recommended to Council that the proposed development be refused. Later that same month, City Council ratified the Committee recommendation and refused the application.

f. the Applicant appealed to the Tribunal, both the OPA and ZBA on April 21, 2021.

12Ms. Swinfield went into considerable depth in her oral testimony, outlining City staff’s review of the various concepts the Applicant proposed for the subject lands. Staff meticulously reviewed both proposals from a public policy, urban design and a ‘community fit’ perspective. The considerable urban design suggestions resulted in a complete redesign of the proposal by redeploying density and massing in an effort to respond to comments from the public and the UDRP. Her opinion is the revised proposal is responsive to expressed public concerns, which are detailed in Appendix 9 of the staff report (Exhibit 2, Tab 9).

13Ms. Swinfield provided the background on the provision of a small office building on the site. Her recollection is the City’s Economic Development Department made the suggestion to include the office “to bolster office floor space in the City” and the Applicant responded. It does provide in a small way, a better live-work arrangement in a modest mixed-use arrangement.

14A high standard of urban design is important to the City and applications of this nature follow a rigorous internal review process that is comprehensive, iterative, and ongoing throughout the internal review process. The results are reflected in the revised proposal.

15The revised proposal, which is described in a series of concept plans (Exhibit 2, Tab 30) is based on feedback from the public meeting, advice from the UDRP and comments from various City and external agency comments. It includes:

1. a seven-storey residential apartment building facing Cottrelle Boulevard consisting of 72 residential units. The height of the building is two-storeys in proximity to the SDD to the west and is stepped back in a manner that ensures the building gets taller farther away from the SDD’s;

2. two three-storey stacked townhouse blocks with a total of 24 residential units that have the same number of floors and massing as “standard” townhomes;

3. a two-storey office building of approximately 200 square metres that is intended to be used by the Applicant;

4. 170 parking spaces, the majority of which are underground; and,

5. an on-site amenity and play area.

16In support of the proposed Phase 2 development, the Applicant submitted a detailed Urban Design Brief prepared by John G. Williams Ltd. – Architect and Strybos Barron King Ltd. – Landscape Architect (Exhibit 2, Tab 22). The described intent of the Urban Design Brief is “to provide design guidance that will assist in creating an attractive development appropriate to its context and to ensure that site design, building architecture and landscape treatments combine to reinforce a vibrant public realm”. This Urban Design Brief is very comprehensive and detailed including such topics as the design vision, a landscape plan, streetscape relationships, design of the central amenity area, parking, and a description of the built form principles for both the apartment building, stacked townhomes and office building.

17Mr. Dorfman, in his evidence, presented his preferred option for the subject lands. No concept plan nor Urban Design Brief is submitted to support his preferred proposal. Essentially, Mr. Dorfman’s proposal reduces the apartment building to five-storeys with 67 units; moves the building to have a 15-metre setback from the westerly property line; sets a series of zone provisions to accommodate the apartment building; and removes the permissions for the stacked townhouse and office building.

PLANNING INSTRUMENTS

18The proposed amendments are site specific and therefore, apply only to the subject lands. The planning instruments before the Tribunal are:

a. an OPA to the City of Brampton Official Plan (“BOP”) to amend Schedule A2: Retail Structure by deleting the “Neighbourhood Retail” designation on the subject lands. With respect to the Bram East Secondary Plan (“BESP”), amending Schedule 41a by deleting the “Neighbourhood Retail” designation and replacing the “Special Policy Area 4” designation with a “Cluster and High Density Residential” designation; and

b. amending the City’s Zoning By-law No. 270-2004, as amended (“By-law 270-2004”), for the subject lands to a Residential Apartment A(3) – Special Section 2569 (R4A(3)-2569) zone that has the effect of permitting the residential apartment, stacked townhomes and office.

LAND USE PLANNING POLICY

19Messrs. Franklin and Dorfman met and submitted an Agreed Upon Statement of Facts (Exhibit 2, Tab 26) with respect to the Issues found in the Procedural Order. Although not explicitly described in the agreed facts, the only substantive evidence with respect to Provincial and Region of Peel statutory documents is that of Mr. Franklin’s. The Tribunal did also have the benefit of a very detailed planning analysis in Appendix 9 of the July 6, 2020, City staff recommendation report (Exhibit 2, Tab 9). One could characterize the matter as of local significance and is therefore largely adjudicated through the relevant BOP and the BESP policy.

20The Tribunal has the responsibility to satisfy itself on consistency or conformity to Provincial Policy and Upper Tier Official Plans. Ontario has a Provincially led planning framework and therefore, statutory Provincial Planning policy does have weight in a Tribunal decision. This decision is no exception. The following are key points of evidence led by the land use planning witnesses and whether the proposed OPA and ZBA meet Provincial and Region of Peel statutory policy.

Provincial Policy

The Planning Act (“Act”)

21Issues Nos. 1 and 7 relate to s. 2 of the Act. Mr. Franklin’s evidence showed that both the proposed OPA and ZBA have appropriate regard for the provincial interests found in s. 2 of the Act most notably s. 2 (j), (q), and (r (i) and (ii)). Ms. Swinfield confirmed that she continues to support the recommendations in the staff report and is of the opinion that the proposed development has regard for s. 2 of the Act.

Provincial Policy Statement 2020

22Mr. Franklin provided detailed evidence with respect to the Provincial Policy Statement 2020 (“PPS 2020”), which is very comprehensive and fulsome in its policy direction. He noted that he read the PPS 2020 in its entirety and made specific reference to s. 1.1.1, 1.1.2, 1.1.3, 1.2.6, 1.4.3, and 1.6.7. A summary of the planner’s analysis is as follows:

a. promotes efficient development and land use patterns that avoid expansions to settlement areas and will assist in sustaining the financial well-being of the Province and the City. It represents a compact built form of development at a higher density and has a mixed-use component;

b. provides a range of residential housing types not common in the area including multi-unit and stacked townhouses in an effort to meet housing requirements for current and future residents. It represents a more affordable housing option than presently exists in the immediate area;

c. directs new housing to a location that is well served by existing infrastructure and public service facilities. It is development on a vacant parcel of land that is adjacent to existing commercial and close to institutional uses;

d. is appropriate for and efficiently utilizes existing infrastructure including municipal water, wastewater, and storm water management facilities;

e. the increased density will provide a greater support for existing transit infrastructure and promotes active transportation;

f. provides for residential intensification, transit supportive development achieves a cost-effective development pattern and minimizes land consumption and servicing costs;

g. provides a settlement pattern that achieves an efficient density and mix of land uses;

h. the location of this high density mixed-use proposal is expected to assist in minimizing the number of vehicle trips; and,

i. the proposal makes more efficient use of both the existing and planned infrastructure.

23Mr. Franklin is of the opinion that the OPA and ZBA are consistent with the PPS 2020. Ms. Swinfield confirmed that she continues to support the recommendations in the staff report and is of the opinion that the proposed development is consistent with the PPS 2020.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe – 2020

24A Place to Grow: Growth Plan for the Greater Golden Horseshoe – 2020 (“Growth Plan”) builds upon the Provincial policy framework for growth and development in the Greater Golden Horseshoe. It includes policy on where and how to grow, building complete communities and to prioritize the intensification and higher densities to make efficient use of land and infrastructure and support transit viability (Tribunal emphasis). Evidence proffered by Mr. Franklin address Issue Nos. 3 and 9 and he made reference to an extensive series of Growth Plan specific policies including: s. 1.2.1, 2.2.1, 2.2.6 (1) and (2), 3.2.1, 3.2.2, 3.2.3 and 4.2.10. Key themes included:

a. supports the achievement of compact, complete communities designed to support healthy and active living while meeting the needs of residents throughout an entire lifetime. The subject lands are close to retail and institutional uses and includes on-site recreation facilities and represent a mix of uses and a higher density residential built form;

b. recognizes the need to encourage intensification throughout the delineated build-up area. Serves to identify an appropriate scale of development in strategic growth area and transition of built form to adjacent areas while ensuring lands are zoned and developed in a manner that supports the achievement of complete communities;

c. provides for residential intensification, transit supportive development, achieves a cost-effective development pattern, which will minimize land consumption and servicing costs;

d. recognizing it is an important policy objective to ‘optimize’ the use of existing land supply to avoid over designation of land for future urban development while providing for housing needs and market demands;

e. accommodates an appropriate range and mix of much needed market-based residential units. The proposal includes a mix of one, two and three-bedroom units that support those living on their own and families. As is noted in the City staff report, both apartments and townhouse are ‘severely underrepresented’ within the City;

f. supports housing choice and contributes to a diverse range and mix of housing options and densities within the City. It represents a modest level of intensification that has regard to the surrounding built form in an effort to help meet the needs of current and future residents;

g. assists in implementing the strategy to achieve minimum intensification targets and intensification throughout the delineated built-up area of which the subject lands are within;

h. assists the City in achieving and managing forecasted growth to the horizon of the Growth Plan, which is an important component of its construct; and,

i. the subject lands are within the City’s built boundary, is an infill site that is not in a designated greenfield area and therefore, will utilize existing water, wastewater, transportation, and transit infrastructure. The proposal is located close to two existing local transit routes and being at a higher density, serves to optimize and support the areas existing transit services.

25In conclusion, Mr. Franklin opined that the OPA and ZBA conforms to the Growth Plan. Ms. Swinfield confirmed that she continues to support the recommendations in the staff report and is of the opinion that the proposed development conforms to the Growth Plan.

26The Tribunal agrees with Mr. Franklin and Ms. Swinfield (as analyzed in the City staff report) and finds that this proposal has appropriate regard for matters of provincial interest in s. 2 of the Act, is consistent with the PPS 2020 and conforms with the Growth Plan. The Tribunal finds evidence that illustrates the proposal more than conforms with, and does not conflict with, the Growth Plan, as it speaks directly to the implementation priorities of optimizing the use of existing urban land supply; represents an intensification first approach to development; provides a mix and range of housing units; and is an appropriate scale and type of development.

27The Tribunal quotes three (of the many) policies of the Growth Plan noted in the proceedings:

a. Managing Growth – s. 2.2.1.3 c) “provide direction for an urban form that will optimize infrastructure particularly along transit and transportation corridors, to support the achievement of complete communities through a more compact built form”;

b. Delineated Built-up Areas - s. 2.2.2.3 c) “encourage intensification generally throughout the delineated built-up area”; and,

c. Housing – s. 2.2.6.1 a) i) “identifying a diverse range and mix of housing options and densities, including additional residential units and affordable housing to meet the projected need of current and future residents”.

28The planning framework in Ontario is clearly hierarchical and does not defer the responsibility of being consistent with or complying to Provincial policies only to the local municipal Official Plan. Planning policy in Ontario is a Provincially led framework and the Tribunal heard in evidence that the proposal clearly meets all the relevant statutory policy tests and therefore, Provincial policy carries weight in this Decision.

29The Tribunal finds the proposal serves:

a. to direct the majority of growth to settlement areas in support of a compact urban form.

b. assists in the creation of a complete community by providing a diverse mix of land uses, optimizes the use of the existing urban land supply that will help avoid the over designation of land for future urban development, which represents an intensification first approach within the City.

c. supports housing choice and contributes to a diverse range and mix of housing options and densities. City staff have identified that apartments and townhouses are ‘severely underrepresented’ within the City. This merits consideration in the analysis of the proposed OPA and ZBA as the proposal includes a mix of one, two and three-bedroom units that support those living on their own and families in an underrepresented built form.

d. recognizing it is an important policy objective to ‘optimize’ the use of existing land supply to avoid over designation of land for future urban development while providing for housing need and market demands;

e. makes better use of existing infrastructure, transit, and public service facilities. It will utilize existing water, wastewater, transportation, and transit infrastructure. The proposal is located close to two existing local transit routes and being at a higher density, serves to optimize and support the areas existing transit services; and,

f. the proposal represents a modest level of intensification that has regard to the surrounding built form in an effort to help meet the residential requirements of current and future residents.

30Therefore, the Tribunal assigns weight to Provincial policy directions in this Decision.

Municipal Policy

Region of Peel - Official Plan

31The Region of Peel (“Region”) Official Plan (“PROP”) sets out general land use patterns and a policy framework for the entire Region. Urban areas will accommodate a significant portion of the planned growth in the Region and the subject lands are within the built up area as defined by the Growth Plan. Mr. Franklin, in evidence noted, that the subject lands are designated as ‘Urban Systems’ on Schedule ‘D’ – Regional Structure. It is also identified as being within the Region’s ‘Built-up Area’. His evidence spoke directly to Issue Nos. 4 and 10, where reference is made to a large number of policy sections and Schedules of the PROP.

32The PROP must conform to the Growth Plan and therefore, has many of the same policy themes as described in previous sections of this Decision. The key policies heard in evidence that speak to this matter are as follows:

a. Achieve intensified and compact form, and a mix of land uses in appropriate areas that efficiently use land, services, infrastructure, and public finances while taking into account the characteristics of existing communities and services. Achievement of an urban structure, form and densities, which are pedestrian-friendly and transit-supportive (s. 5.3.1.4 and 5.3.1.5);

b. Direct urban development and redevelopment to the Urban System within the 2031 Regional Urban Boundary (s. 5.3.2.2);

c. The need to provide a range of housing types to meet the needs of various people, access to nearby transit and are close to public service facilities. The objective is clear that an appropriate range and mix of housing types, densities, sizes, and tenure to meet the projected requirements and housing needs of current and future residents (s. 5.1.1, 5.1.2, 5.1.3, 5.8.1.1, 5.8.1.2, 5.8.2.2, and 5.8.2.3);

d. to optimize the use of the existing land supply by directing a significant portion of the growth to built up areas. Support planning for complete communities that are compact, well designed and include a diverse mix of land uses (s. 5.5.1.1, 5.5.1.5, and 5.5.1.6);

e. direct a significant portion of new growth to the built-up areas of the community through intensification (s. 5.5.2.2);

f. promote crime prevention and the quality of life. Use Crime Protection Through Environmental Design (“CPTED”) in an effort to minimize crime; and,

g. a number of Transportation Demand Management (s. 5.9.9) and Active Transportation (s. 5.9.10) are demonstrated to be relevant to the proposed development.

33Mr. Franklin advised the Tribunal that because of the close alignment of the PROP to the Growth Plan, much of his analysis is similar. Key elements of the proposed development are: an appropriate compact form of development that efficiently makes use of municipal water, wastewater and stormwater facilities; represents modest infill intensification, is pedestrian-friendly, transit supportive and close to two local transit routes; is close to commercial and public services, which allows for active transportation; the site layout was designed in keeping with CPTED principles; has made provision for convenient, accessible recreation and amenity space on-site; and the 96 units range in size and include one, two and three-bedroom units not found in the immediate area thereby assisting in the provision of housing for all income groups and family characteristics, which is a very important public policy objective of the PROP.

34Mr. Franklin is of the opinion that the OPA and ZBA conforms to the PROP. Ms. Swinfield confirmed that she continues to support the recommendations in the staff report and is of the opinion that the proposed development conforms to the PROP.

35The Tribunal agrees the OPA and ZBA conforms to the PROP. The Tribunal finds that the evidence illustrates the proposal more than it conforms with the PROP, it speaks directly to the implementation of Regional policies including: the achievement of intensified and compact form, and a mix of land uses in appropriate areas that efficiently use land, services, infrastructure; serves to direct urban development and redevelopment to the Urban System within the 2031 Regional Urban Boundary and helps to ensure a significant portion of new growth and development is within the built-up area; represents modest infill intensification; optimizes the use of the existing land supply and readily available infrastructure; and assists in the provision of housing for all income groups and family characteristics in a form described as ‘severely underrepresented’ in the City.

City of Brampton Official Plan (“BOP”)

36The matter before the Tribunal is largely a local matter and the BOP provides guidance for land use decisions within the City. Evidence of the land use planners addressed Issue Nos. 5 and 11 to demonstrate the proposal’s conformity to the BOP. A number of policy sections are quoted in the two issues, all of which were reviewed in testimony at the hearing.

37The subject lands are designated as ‘Communities’ in the ‘Built Boundary’ – Schedule 1: City Concept; identified as ‘Neighbourhood Retail’ – Schedule A2: Retail Structure and ‘Residential’ – Schedule A: General Land Use Designations. Cottrelle Boulevard is identified as a ‘Collector Road’ and McVean Drive an ‘Urban Collector Road’ – Schedule B: City Road Hierarchy. The subject lands are also identified as within the BESP (41) - Schedule G: Secondary Plan Areas.

38Mr. Dorfman in his Witness Statement opined that the proposed development (and his alternative plan) both would conform to the intent of the BOP other than Schedule ‘A2’ as the subject property is “underutilized for commercial uses”, residential development is permitted in a Residential Designation and the proposal is within the High Density category. He agrees with the staff opinion that an amendment to the BOP is not required for either alternative proposal. The Tribunal will focus on Mr. Franklin’s evidence with respect to the proposal’s conformity to the BOP.

39The breadth of the policy framework in the BOP are considerable and extremely comprehensive in their construct. A local official plan must conform to the regional official plan, so again policy themes are similar. Mr. Franklin described, with detailed evidence, the BOP policy direction most relevant in this matter. He made special reference to policies including: a portion of residential density is directed to the built-up area (at least 26,500 dwelling units); the efficient use of existing services and infrastructure; promoting accessible, pedestrian-friendly and transit-oriented development; creation of compact, complete communities with a mix of uses and a variety of housing choices; creating vibrant communities with a variety of housing options for people at various stages off their life cycle; optimize opportunities for infill, intensification, revitalization with a mix of uses; need to integrate multi-modal transportation, closely with land uses; and the promotion of active transportation.

40To demonstrate conformity to the BOP, Mr. Franklin reiterated much of the same opinion as found previously in this Decision including: the subject lands are in the built-up area, is transit supportive and makes use of existing infrastructure; will promote walkability because of its physical location close to commercial and institutional uses, which assists in the creation of a complete community; the range of unit sizes will meet the needs of people of all ages at various stages of life in a form of housing that are currently available in the immediate community and is more affordable; provides a design that engages with the public realm and includes areas for social interaction; serves to conserve land resources by optimizing an infill, intensification opportunity with a mix of uses; and will promote the use of active transportation and supports two local transit routes.

41Mr. Dorfman proffered no contrary evidence with respect to the aforementioned BOP policy themes. Ms. Swinfield confirmed that she continues to support the recommendations in the staff report with respect to these BOP policy themes.

42The Tribunal accepts the opinion of Mr. Franklin and Ms. Swinfield that the proposal conforms to the aforementioned policy themes and corresponding sections of the BOP.

43The BOP policy section that has direct relevance and is under some dispute with the land use planners is found in s. 3.2.8 – Sustainable City Structure, which states:

The City shall consider appropriate forms of infilling to maximize the benefits of municipal services already in place. Specific locations suitable for infilling will be detailed in Secondary Plans.

44This policy section goes on to state that any application that exceeds the defined limits found in the BOP may only be considered subject to the submission of an OPA. The OPA must demonstrate conformity to a series of criteria found in s. 3.2.8.3. Mr. Franklin provided considerable evidence with respect to this policy direction. Mr. Dorfman did not make reference to this policy section but did provide relevant evidence relating to the in-force secondary plan and much of his evidence did speak to one of the required criteria of this section being:

s. 3.2.8.3 viii) the form of development is compatible and integrates with adjacent land use and planned land use, including lot size, configuration, frontages, height, massing, architecture, streetscapes, heritage features, setbacks, privacy, shadowing, the pedestrian environment and parking

(Tribunal emphasis)

45The Tribunal will defer consideration of this criteria to the BESP review but will now evaluate Mr. Franklin’s evidence on the remaining relevant criteria found in s. 3.2.8.5 to establish that the proposal has met the required tests including:

a. is consistent with the general intent of the BOP as it provides for a full range dwelling units that are not available in the immediate area and supports the existing commercial development and the transit system. (s. 3.2.8.5 i);

b. contributes to the City’s desired housing mix (s. 3.2.8.5 9 i);

c. assists in meeting the City’s population and employment forecasts and its intensification goals (s. 3.2.8.5 iii);

d. will contribute to the creation of a complete community (s. 3.2.8.5 iv);

e. there is sufficient existing infrastructure to accommodate the proposal (s. 3.2.8.5 v);

f. the proposal has access to Cottrelle Boulevard, which is a collector road (s. 3.2.8.5 vi); and,

g. the subject lands are served by two bus routes and will contribute to active transportation (s. 3.2.8.5 vii).

46Mr. Franklin made reference to the Development Guidelines considered as key elements of design for residential areas (s. 4.2.1.14). The proposal addresses these key elements as described in considerable detail by the Urban Design Brief (Exhibit 2, Tab 22) by:

a. providing a variety of housing types and architectural styles;

b. appropriate siting of buildings and building setbacks;

c. the majority of vehicular parking is underground and driveway access is carefully designed in keeping with the Linkages, Connections and Circulation principles that are found in the Urban Design Brief;

d. the relation to the street and street façades has been carefully considered and incorporated into the project design;

e. detailed elevations have been prepared to ensure a high quality development;

f. is entirely townhouses and apartments, which is a new form of housing in the area catering to the needs of individuals and families; and,

g. a detailed landscaping plan has been submitted to complement the streetscape, proposed amenity areas and neighbouring properties.

47In conclusion, Mr. Franklin opined that the proposed OPA and ZBA conform to the Residential policies and specifically, meet all of the tests found in s. 3.2.8.5 of the BOP and the proposal would not compromise the City Structure. Ms. Swinfield confirmed that she continues to support the recommendations in the staff report and is of the opinion that the proposed development conforms to the BOP. The Tribunal agrees.

48The Tribunal finds that the OPA and ZBA conform to the BOP for reasons including the following: is a modest intensification and infill proposal that is within the built-up area of the City; makes optimum use of the existing land resource; makes efficient use of existing municipal infrastructure; promotes active transportation and walkability; contributes to the creation of a complete community; provides a much needed range of housing types, which are intrinsically more affordable while including a variety of unit sizes that are not immediately available; is well designed and has been proven to meet the City’s Development Design Guidelines and has met the tests found in s. 3.2.8.5 thereby being a suitable location for infilling to “maximize the benefits of municipal servicing”.

Bram East Secondary Plan (“BESP”)

49The subject lands are located within the in-force BESP. Evidence of the land use planners addressed Issue No. 6 – “Is it appropriate to redesignate lands currently designated as “Neighbourhood Retail” in the Bram East Secondary Plan to eliminate retail uses and permit solely residential uses?” This is the Issue where diverging opinion of the land use planners is most evident. Mr. Dorfman proposed a preferred alternative concept previously described in paragraph 17 of this Decision.

50The subject lands are located in ‘Special Policy Area 4’ and designated as ‘Neighbourhood Retail’ – Schedule SP41 (a). Two policies both found in the ‘Cluster and High Density Residential’ section of the BESP is the heart of the debate. The OPA before the Tribunal would redesignate the subject lands to ‘Cluster and High Density Residential’.

The net density for Cluster and High Density Residential designations shall not exceed 125 units per hectare (50 units per acre). Notwithstanding the maximum permitted density, approval for an increase in density, to a maximum of 150 units per hectare (60 units per acre) may be granted on a site specific basis for nonprofit housing projects, without further amendment to this Plan. Proponents must demonstrate to the satisfaction of the City that the development will meet the Provincial Housing Policy Statement, will have a reasonable floor space index relative to the density yield, and will have minimal impact on the local roads and services within the Secondary Plan Area. (s. 3.1.7)

Any proposal for Cluster and High Density development will have regard for the achievement of acceptable transition and physical integration with lower density forms of development and minimize shadowing and overlook of the lower density residential forms. (s. 3.1.8)

51With respect to evidence heard from the land use planners, in respect to s. 3.1.7, it is clear from the evidence that both the proposal and Mr. Dorfman’s alternative:

a. do not exceed the 125 units per hectare;

b. both would add a type of unit that is under-represented in the City to the existing housing supply;

c. the floor space index proposed in the ZBA is relative to the density yield; and,

d. there is minimal impact on local roads (uncontested transportation evidence) and other municipal services are shown to be adequate.

52The Tribunal finds that the proposed development conforms to s. 3.1.7 of the BESP.

53With respect to s. 3.1.7 of the BESP and s. 3.2.8.5 viii) of the BOP, terms such as compatibility, acceptability, appropriate transition to neighbouring properties and the need to minimize shadowing and overlook of the adjacent SDD are important considerations.

54Both planners are of the opinion that neither proposal will result in significant shadowing impacts on neighbouring properties. A shadow study was not required by the City.

55To mitigate overlook and ensure privacy, Mr. Dorfman recommended the elimination of the townhouse units and reduced the height of the apartment building from seven to five storeys. Mr. Franklin noted that the proposal includes a number of design treatments to assist in the mitigation of potential privacy issues. Design treatments include: a 1.8 m masonry acoustic fencing surrounding both Phase 1 and 2; stepbacks are incorporated into both the apartment and townhouse blocks to ensure respectful sightlines from all sides of the property; the fourth and fifth floors of the apartment building are further stepped back to create a greater distance between the apartment building and the SDD’s; and all of the stacked townhouse balconies are relocated to the interior overlooking the at-grade parking.

56The policy direction found in s. 3.1.8 speaks to the need that “any proposal for Cluster and High Density development will have regard for the achievement of acceptable transition and physical integration with lower density forms of development”. All planners described the intent of this policy as being the proposed development is compatible with the surrounding SDD neighbourhood.

57Therefore, how one defines compatibility is important in the Tribunal’s consideration and analysis of the BOP and BESP policy. The first point of departure is to determine exactly what compatibility indeed is as the Tribunal hears evidence that new development must be compatible with the existing development. The Tribunal looks to Motisi v. Bernardi, 1987 CarswellOnt 3719, (1987) O.M.B.D. No. 2, 20 O.M.B.R. 129 for some direction.

Being compatible with is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being Compatible with implies nothing more than being capable of existing together in harmony.

58Mr. Franklin opined that the proposal does have regard for the achievement of acceptable transition and integration with the surrounding SDD’s. His comprehensive review of existing in-force statutory policy all assisted in leading him to an opinion that the proposal is indeed compatible and appropriate for development on the subject lands.

59The planner again made special note of the detailed Urban Design Brief (“Brief”) that was submitted as part of the application review. The Brief goes into great detail to describe and explain how the proposal integrates with the existing community. The Brief was supported by City planning staff report, which states:

The brief was revised based not only on the new concept for the property, but also feedback received from the surrounding neighbourhood at the public meeting, the City’s Urban Design Review Panel, and comments received from Urban Design Staff…No further revisions to the Urban Design Brief are required. The final design of the apartment building and the stacked townhouses, along with the parkette area, will be further refined and then finalized through a Site Plan Application.

60Mr. Franklin’s evidence went on to note that the proposed OPA and ZBA represent a compatible relationship by:

a. locating stacked townhouses adjacent to the SDD. Townhouses are a commonly used technique to ensure an appropriate transition;

b. a careful articulation of the building to the public realm so that it will positively contribute to the character of the area;

c. includes a stepping back of all buildings to provide more appropriate massing with respect to the surrounding areas’ context and provides special consideration to the existing SDD’s;

d. the compact built form has active uses at grade level to enhance safety; and

e. the proposal is a well designed, high quality building that will prove to be an asset to the existing community.

61In conclusion, Mr. Franklin is of the opinion “the proposed development maintains the general intent of the Secondary Plan, specifically the residential policies, and supports the Cluster and High Density policies of the Secondary Plan”. The design considerations made in the revised proposal will contribute to minimizing potential impacts on the SDD’s. There is no requirement for a shadow study and by placing all balconies to the front of the building mitigates potential overview. The OPA and ZBA ensure a compatible relationship and transition in both built form and use to the adjacent SDD’s. Ms. Swinfield confirmed that she continues to support the recommendations in the staff report and is of the opinion that the proposed development conforms to the BESP.

62Mr. Dorfman introduced a different way to measure ‘acceptability’ as described in his WS:

Policy 3.1.8 is one test to determine the acceptability of this proposed development. Another way of assessing the acceptability of this proposed development is to look at the context provided by the original Plan of Subdivision.

63With this concept in mind, the planner detailed a numerical analysis of the 2005 Plan of Subdivision and applied the results of this analysis to the subject lands. His analysis confirmed the net residential density of the existing SDD development conformed to the BESP. He concluded by adding the proposed 96 dwelling units to the areas’ density would result in an increase in the overall net density of the 2005 Plan of Subdivision resulting in an overage of “an estimated 29 dwelling units”.

64Using this approach, Mr. Dorfman opined that a building with approximately 67 dwelling units “will achieve the density standard and better satisfy the intent of Policy 3.1.8”.

65With respect to building height, Mr. Dorfman went to the current zone provisions of a “C2” zone, which establishes a maximum height of three storeys with some provision related to distance between the commercial building and the nearest residential zone. Using this analysis, he estimated a height of approximately 12.5 m would compare to a four- to five-storey apartment building that should be located approximately 15 m from the westerly property line.

66As previously noted, Mr. Dorfman did not provide a concept plan to demonstrate how his conclusions could be organized on the subject lands. He also noted that this could be an ‘interim step’ in the approval process. When the community has experienced and are comfortable with his preferred alternative, the Applicant could return to the City with an application to redesignate the remaining vacant portions of the subject site.

67In conclusion, Mr. Dorfman is of the opinion that a modified residential development that has 67 dwelling units and is no higher than five storeys better achieve an acceptable transition and physical integration with the existing lower density residential development.

68The Tribunal prefers the evidence of Mr. Franklin and Ms. Swinfield, and finds the OPA and ZBA conforms to the BESP. The proposed development as articulated by the OPA and ZBA “is capable of existing together in harmony”, has appropriate regard for s. 3.1.8 and achieves an acceptable transition and physical integration. Reasons include:

a. conforms to the Cluster and High Density maximum density requirements as found in s. 3.1.7;

b. the proposal has no appreciable shadow impacts and removing rear balconies serve to mitigate overview and privacy issues;

c. there are a number of design treatments that have been included being a 1.8 m masonry acoustic fencing surrounding both Phase 1 and 2, step backs are incorporated to ensure respectful sightlines from all sides of the property; the fourth and fifth floor of the apartment building has been further stepped back to create a greater distance between the apartment building and the existing SDD’s;

d. the Applicant modified the concept plan to locate stacked townhouses adjacent to the SDD which is a notable and positive change;

e. Townhouses are a common technique to ensure an appropriate transition;

f. the Applicant has submitted a detailed Brief, which will serve well as a basis for a Site Plan Control application to the City. Detailed concept plan drawings by Martinello Designs dated January 2, 2019 (Exhibit 2, Tab 30) are evaluated in detail at the hearing and serve as an excellent illustration of the many design considerations that have been incorporated; and,

g. the uncontested evidence that proposal represents a compact built form with active uses at grade level to enhance safety. It is a well designed, high quality building that will prove to be an asset to the existing community.

69The Tribunal finds the analysis of Mr. Dorfman, albeit creative, is not an appropriate way to measure change in an area. Planning is not simply a numerical analysis where one compares proposed changes against the outcome of planning policy that was at one time considered appropriate but has been completely overtaken by recent planning policy that has evolved considerably in its foundations. Such analysis is useful in providing background, but such a comparison serves only to continue to replicate the existing physical character (albeit, in a different built form) but serves little purpose in assisting a City in managing rapidly evolving public policy at the Provincial, Regional and local levels. This limited approach, by its very nature, leads to significantly reducing the ability to creatively infill within an existing neighbourhood and runs counter to an ‘intensification first’ policy direction. Different built form characteristics can serve to reinforce the overall character and interest of a neighbourhood.

70The Tribunal must evaluate the OPA and ZBA against in-force statutory policy and has done so with reasons found throughout this Decision.

71The Tribunal agrees that the surrounding neighbourhood has seen little change, but neighbourhoods are not intended to be static, meaning there will be no change. The evidence clearly demonstrated that the policy framework has been successful in managing change in the City, but current planning thought is that modest or ‘gentle’ intensification is appropriate in existing neighbourhoods. The City is entering a new phase of growth management as it has virtually no new ‘greenfield’ development opportunities within it borders. As the City faces the challenges of managing change within this new era, it will find there will be intensification and infill sought throughout the City. This matter is an example of such pressure as an existing neighbourhood naturally evolves in keeping with the in-force planning policy at the time.

72The Tribunal finds that the proposal is a modest but important addition to the City’s existing housing stock that is ‘severely under-represented’. Albeit, in a different built form than what is found in the immediate neighbourhood, it still represents gentle residential development.

73The Tribunal agrees that compatibility does not mean being the same as, or even being similar to, but instead “implies nothing more than “being capable of existing together in harmony”. The Tribunal finds the proposal can indeed co-exist in harmony with the adjacent SDD’s.

City of Brampton Zoning By-law No. 270-2004 (“ZBL 270-2004”)

74The subject lands are Commercial Two – Special Section 1851 (C2-1851) in ZBL 270-2004. The ZBA provided to the Tribunal and found in Exhibit 2, Tab 14 would delete the existing C2-1851 zone and replace it with a Residential Apartment A (3)-2569 Zone on Schedule A of ZBL 270-2004. The ZBA would implement the revised proposal. Evidence of the land use planners addresses Issue No. 11 as found in the Procedural Order.

75Mr. Franklin opined that the proposed ZBA is appropriate and in the public interest as it: provides for a range of housing types and unit sizes; is a compact urban form with mixed uses that will contribute to creating complete communities; the location and design of the building has active uses at grade; will contribute to the public realm and emphasize pedestrian connectivity and safety; and reflects the changes made to ensure compatibility with adjacent SDD’s by permitting townhouse in the rear of the property and step backs in the apartment buildings fourth, fifth and sixth floors.

76Ms. Swinfield, in her evidence, testified that the proposed ZBA was the subject of a complete and thorough review by staff at the City and was recommended for approval to Council. The ZBA is designed to manage the development of the entire site in a way that allows some flexibility in the proposal’s implementation as design is finalized with a subsequent Site Plan Control (“SPC”) application and review. She described the rigorous, continuous review process conducted by the City that was informed by the Brief. This approach to a ZBA application is commonly used in the City and she is confident that there are sufficient controls defined by the ZBA to ensure proposal will be constructed in keeping with the concept plans found in Exhibit 2, Tab 30.

77Ms. Swinfield did confirm in cross-examination that the zone provisions are determinative when dealing with the step backs proposed by the Applicant and demonstrated in the Concept Plans and the only way to secure the urban design principle of maintaining a 45 degree plane from the property line between the subject lands and the lands zoned R1C. She did remain confident that the by-law recommended to council along with the detailed Brief and Concept Plans would ensure the SPC application for the proposal would be in keeping with the concept plans and could be adequately managed by the proposed ZBA.

78With respect to the office permission, Ms. Swinfield reiterated that, in her recollection, the suggestion came from the economic development department in an effort to bolster office floor space in the City and the staff planning report offered no independent planning assessment. The Tribunal notes that the Brief completes a thorough review of the office building design (s. 3.1.4), which states “the proposed building will provide small-scale office space opportunities for the community and will serve to diversify the proposed uses available on the site.” This demonstrates that the inclusion of Offices (Excluding Medical Offices) was contemplated early in the process and has been comprehensively reviewed by the Applicant and the City as appropriate to be located on the subject lands.

79Mr. Dorfman provided a revised ZBA that would implement his recommended alternative option (Exhibit 7), which serves to: permit only a Residential Apartment building and accessory uses (the permissions for office and stacked townhouse are removed); has a maximum Floor Space Index of 1.0 (as compared to 1.5); has a maximum number of Apartment Units - 67; a maximum height – 15 m; and a revised series of site specific zone provisions. It is noted by the Tribunal that his recommended revised ZBA was not available to the parties or the Tribunal prior to his evidence, is not accompanied by a concept plan to evaluate his proposed zone provisions against nor is it reviewed by City staff to determine if it is technically sound with respect to the City’s standard practices and interpretation.

80The Tribunal is also in receipt of two additional ZBA’s both with the intent on better securing the 45 degree plane transition to the adjacent SDD’s, which is an important consideration specifically noted in the concept plans. It is the City’s view at the hearing that is the best, if not the only, way to secure this important transitional component is to have the setbacks and step backs clearly defined within an amendment to ZBL 270-2004.

81After hearing the evidence, Mr. Dorfman submitted a second ZBA that used defined setbacks to secure the desired 45 degree plane and reduced the height of the apartment building (Exhibit 9). This ZBA is presented to be recommended by Mr. Dorfman only if the Tribunal chooses to approve the proposal as submitted by the Applicant. Mr. Franklin in reply continued to opine that the ZBA as proposed is sufficient when combined with the detailed Brief but did submit to the Tribunal a minor revision to the proposed ZBA, which simply added a clause defining the requirement for a 45 degree plane and making adjustments to the Maximum Height provisions for the apartment and townhomes (Exhibit 11).

82None of the three alternatives ZBA’s presented at the hearing had the benefit of review from City technical staff to determine their appropriateness or whether they could be implemented within existing City procedures or practices.

83The Tribunal finds that it is confident that City staff have recommended a ZBA that is appropriate to manage the ongoing process for developing the subject lands and will serve to implement the proposal that is the subject of this proceeding. The recommended ZBA has been thoroughly reviewed by internal City staff and follows a model they routinely use to manage proposals of this type successfully as they move through the approval process.

84The Tribunal is reluctant in this matter to make changes to the staff recommended ZBA that have not been reviewed by City staff to determine the appropriateness and accuracy of such changes. It is clear from evidence that the Applicant has taken considerable effort in improving the proposal, which has gained a favourable City staff recommendation and in their preparation for this hearing. Mr. Franklin opined that the application for SPC will be in keeping with the Concept Plan et. al. that is found in Exhibit 2, Tab 30 and noted in the document book index as “Final Site Plan Package (April 10, 2020)”.

85The Tribunal notes that none of the ratepayer testimony spoke to the need to provide additional security for the setbacks or step backs for either the apartment building or the townhouse. They offered no support to any of the alternative ZBA’s presented at the hearing.

86Therefore, the Tribunal defers to and accepts the ZBA that is the subject of this hearing and found at Exhibit 2, Tab 14. The Tribunal clearly understands that the SPC process cannot secure the setbacks or step backs found in the concept plans. Therefore, the final approval of the OPA and ZBA will be conditional on the City Solicitor confirming that a SPC application being submitted by the Applicant is in keeping with the plans found in Exhibit 2, Tab 30, being the drawings by Martinello Designs dated January 2, 2019.

RATEPAYER TESTIMONY

87The Tribunal heard testimony from three area residents. Ms. Sri Pragash (WS Exhibit 3) on behalf of BramptonMatters and Messrs. Goyat (WS Exhibit 5) and Moracci (WS Exhibit 6) as individuals. None are qualified as expert witnesses.

88It is clear from the outset of the testimony that the residents simply do not want the proposal to be approved in any form. They would rather have a continuation of the existing commercial uses found in ZBL 270-2004 or as was suggested a small enclave of SDD’s. Their concerns largely mirrored those expressed to City Council in the public forum and referenced in detail within the City staff report. Their stated concerns include:

a. a loss of privacy in adjacent rear yards thereby compromising enjoyment of these properties;

b. a reduction of existing property values as the proposal is not of the same value;

c. neighbourhood security and safety will be reduced as residents of the proposed development may not take the same care of the community;

d. traffic will increase and with only two access points, additional vehicular conflicts and accidents will result;

e. the subject site best remains with a commercial zoning and will therefore be able to be expanded in the future and be the home to jobs and employment, which are also needed in the City. The area community always envisioned a larger commercial development on the subject lands and see the value of having these facilities located close to their place of residence; and,

f. it is not in the best interest of the community as demonstrated by the overwhelming opposition to the proposal.

89BramptonMatters did not provide any expert evidence from subject area witnesses to support their submissions.

90The Tribunal finds that none of the ratepayer submissions made reference to the content of the ZBA or the need to ensure a more certain transition and stepping back of the building is required nor did they show support for Mr. Dorfman’s preferred option. They are opposed to both the construction of the townhouses and apartment building in any form. The Applicant provided uncontested expert evidence with respect to the submissions related to traffic and transportation and economic market analysis to be discussed later in this Decision. All three planners made note of the fact that the Applicant, often at the request of the City, made considerable changes to the proposal and made an effort to take into account their submissions during the course of the application process. The City planning staff report detailed how resident feedback was received and how the Applicant revised the proposal or provided additional information to respond to the issue.

91The Tribunal was impressed with the efforts of Ms. Sri Pragash in her representation of her community in this unfamiliar proceeding. Therefore, the Tribunal has gone into considerable detail in an effort to clearly articulate the reasons for its Decision and Order.

OTHER CONSIDERATIONS

Economic Market Analysis

92Mr. Patel provided evidence to address Issue Nos. 6, 12 and 13 in the PO’s Issues List that query the appropriateness and is it in the public interest to remove the existing approved Commercial Two use permissions and replace them with residential use permissions. In order to address these issues, he completed a Commercial Needs Assessment and a Commercial Needs Opinion Letter that are a component part of the application review process for the proposed development that is now before the Tribunal.

93Mr. Patel summarized study findings and conclusions as follows:

a. the Neighbourhood Retail designation is intended to serve the shopping needs of the community and the proposed redesignation will not change the retail function of the Valley Creek Plaza;

b. the Valley Creek Plaza serves the day-to-day shopping needs of residents in the surrounding neighbourhood. It has a comprehensive tenant mix and is consistent with the BOP’s defined retail function. Additional commercial development on the subject lands will not change the current function of the Valley Creek Plaza;

c. developing the subject lands with ancillary commercial uses would be challenging in both the current and future retail environment;

d. residents in the neighbourhood are well served by the surrounding retail environment; and,

e. residential uses on the subject lands are compatible with the surrounding land uses.

94Mr. Patel is of the opinion that a redesignation of the subject lands from Neighbourhood Commercial to Residential, would not affect “the day-to-day shopping needs of the existing and future residents of the surrounding neighbourhood” and they would continue to be well served. Therefore, it is “appropriate and desirable to remove the existing approved permissions for commercial use and replace them with residential use permissions”.

95The Tribunal accepts the uncontested evidence of Mr. Patel in its entirety.

Traffic Engineering and Transportation Planning

96Mr. Maria provided evidence to address Issue No. 15 in the PO’s Issues List being: Would the increase in density, in the proposed development, create adverse traffic impacts? He completed three separate studies to determine the transportation related impacts of the proposed development.

97A Traffic Impact Study (“TIS”) as required by the City included such matters as the expected trip generation, an analysis of intersections within the study area and an analysis of the proposed site driveway. Existing conditions were established and assessed; a future traffic scenario related to projected traffic growth was determined along with a review of the City’s Capital program. Conclusions are the study area intersections are expected to operate satisfactorily under future 2026 conditions, recommended minor intersection operational changes, and confirmed that proposed residential parking provided is in excess of City By-law requirements.

98Mr. Maria noted that a Memorandum was prepared in response to public comments raised in public meetings that the proposal “will generate a significant volume of additional local traffic”. At the request of the City, a comparison of the traffic generation was completed, which compared the traffic generated by the existing as-of-right zone provisions and those of the proposed development. Conclusions of this analysis are that the proposed mixed use development “reduces the overall transportation impact the development has at the site driveways and adjacent intersections, improves vehicular capacity, queuing and the safety of pedestrians”.

99Lastly, a Functional Design Drawing was prepared to demonstrate how changes at the intersections in the immediate area could be modified to accommodate the changes recommended in the TIS.

100Mr. Maria concluded that “the proposed development is not expected to result in any significant or unacceptable impacts on traffic or safety within the study area”. He opined “that the proposed development represents good transportation planning and can be appropriately accommodated by the surrounding road network and site accesses”.

101The Tribunal accepts the uncontested evidence of Mr. Maria in its entirety.

Brampton Council Decision

102The Tribunal notes the decision of City Council not to approve this application. The courts (Minto Communities Inc. v. Ottawa (City), 2009 CanLII 65802 (ON SCDC), 2009 CarswellOnt 7349) determined that the Municipal Council is the first to determine the public interest but:

…the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate...

CONCLUSIONS

103For all the foregoing reasons found in this Decision, the Tribunal finds that the proposal represents good planning and is in the public interest. It has appropriate regard for s. 2 of the Act, is consistent with the PPS 2020, and it conforms to the Growth Plan, the PROP, the BOP and the BESP.

104The Tribunal heard evidence from three qualified land use planners, three area residents describing their reasoning on why the proposal should not be approved and the benefit of material provided in several exhibits (including submitted participant statements). Infilling and intensification adjacent to existing neighbourhoods is an ongoing challenge but will continue to be a priority as Provincial and municipal planning policies evolve.

105The Tribunal finds that the City has well established planning policy for the area and is capably facing the challenges of managing change in the rapidly evolving municipality. The Official Plan policy framework is thoroughly tested during this hearing and proved to be sufficiently robust to give proper consideration to all relevant matters and issues presented during its course.

106The Tribunal finds that the City staff completed a comprehensive, iterative, and thorough technical review of both the OPA and ZBA. This review was informed by input from a variety of Departments, Agencies and staff routinely circulated on similar applications. With this information, City staff completed a rigorous evaluation of the applications and recommended approval of both the OPA and ZBA. City Council choose to not adopt staff recommendations. Council can rest assured that the reasons for refusal were completely presented and argued during the course of the hearing, and conclusions of the evaluation is found throughout the Decision. The Tribunal does give weight to evidence provided by the City planner.

107Ontario has a provincially led planning policy regime and, the responsibility of being consistent with or complying to Provincial policy is not deferred to the municipal Official Plan. The revised proposal speaks directly to many, if not all the relevant, policy objectives of the Province whether it be focusing on growth within built boundaries, encouraging compact urban form, making efficient use of land, infrastructure, and existing transit resources, and providing a range and mix of housing units that includes a large percentage of much needed family sized units.

108The Tribunal accepts the uncontested evidence of Mr. Patel that it is appropriate and desirable to remove the existing approved permissions for commercial use and replace them with residential use permissions. The transportation and traffic uncontested evidence of Mr. Maria that the proposed development is not expected to result in any significant or unacceptable impacts on traffic or safety within the study area is also accepted in its entirety.

109The Tribunal accepts the evidence of Ms. Swinfield and Mr. Franklin that the office use is appropriate and will assist in contributing in a small way to the City’s office space portfolio and the opportunity for a better live-work relationship.

110The Tribunal can find no issue with the adequacy and acceptability of the proposed OPA found in Exhibit 2, Tab 13.

111The Tribunal has complete confidence that City staff have recommended a ZBA that is appropriate to manage the ongoing process for developing the subject lands and will adequately serve to implement the proposal that is the subject of this proceeding. The recommended ZBA has been thoroughly reviewed by internal City staff and follows a model they routinely use to manage proposals of this type successfully as it moves through the approval process. The Tribunal clearly understands that the SPC process cannot secure the setbacks or step backs found in the concept plans. Therefore, the Tribunal is prepared to give an Interim Order approving in principle, the OPA and ZBA. It is therefore appropriate that the City Solicitor confirm that the Applicant has submitted a SPC application that is in keeping with the plans found in Exhibit 2, Tab 30 being the drawings by Martinello Designs dated January 2, 2019.

INTERIM ORDER

112Accordingly, the Tribunal Orders:

113THAT the appeals pursuant to s. 22(7) and s. 34(11) of the Planning Act are allowed in part and:

a. the proposed amendment to the City of Brampton Official Plan and Bram East Secondary Plan, as amended, is approved in principle in the manner set out in Exhibit 2, Tab 13 of this proceeding; and,

b. the proposed amendment to the City of Brampton Zoning By-law No. 270-2004, as amended, is approved in principle in the manner set out in Exhibit 2, Tab 14 of this proceeding.

114THAT the Final Order amending the City of Brampton Official Plan, Bram East Secondary Plan and Zoning By-law No. 270-2004, as amended is withheld by the Tribunal pending written confirmation from the City Solicitor that the Applicant has submitted a Site Plan Control application that is in keeping with the drawings by Martinello Designs dated January 2, 2019, found in Exhibit 2, Tab 30 of this proceeding. The City of Brampton may administratively assign by-law numbers where applicable. The Official Plan and Zoning By-law will be provided to the Tribunal for review and approval and will be attached to the Final Order.

115THAT upon receipt of such written confirmation with respect to paragraph 114, the Final Order will issue.

116If the Parties do not provide confirmation that all contingent pre-requisites to the issuance of the Final Order as set out in paragraph 114 above have been satisfied, and request that the issuance of the Final Order, by Friday, October 7, 2022, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Amendments and issuance of the Final Order by the Tribunal.

117The Panel Member will remain seized for the purposes of the issuance of the Final Order and with respect to the Provisional Interim Order set out above. In the event any matters arise, which are related to the implementation of this Interim Order, the Tribunal may be spoken to.

“Bryan W. Tuckey”

BRYAN W. TUCKEY 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.