Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 04, 2022 CASE NO(S).: OLT-22-002324 (Formerly PL210223)

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

Applicant and Appellant: 1834489 Ontario Inc. and Settler’s Landing Estates Ltd. Subject: Application to amend Zoning By-law No. 4316-09 – Refusal or neglect of the Town of Niagara-on-the-Lake to make a decision Existing Zoning: Residential Development (RD) Zone Proposed Zoning: Residential Site-Specific (R2-XX) Zone Purpose: To permit the development of 53 residential lots and one block for parkland dedication Property Address/Description: Part of Township Lot 118 Niagara designated as Parts 1, 2, and 3 on 30R15476; subject to an easement in gross over Part 3 on 30R15476 as in NR464799; Town of Niagara-on-the-Lake and Part of Township Lot 118 Niagara Part 3, 30R15270 Municipality: Town of Niagara-on-the-Lake Municipality File No.: ZBA-16-2020 OLT Case No.: OLT-22-002324 Legacy Case No.: PL210223 OLT Lead Case No.: OLT-22-002324 Legacy Lead Case No.: PL210223 OLT Case Name: Settler’s Landing Estates Ltd v. Niagara-on-the-Lake

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1834489 Ontario Inc. and Settler’s Landing Estates Ltd. Subject: Proposed Plan of Subdivision – Failure of the Town of Niagara-on-the-Lake to make a decision Purpose: To permit the development of 53 residential lots and one block for parkland dedication Property Address/Description: Part of Township Lot 118 Niagara designated as Parts 1, 2, and 3 on 30R15476; subject to an easement in gross over Part 3 on 30R15476 as in NR464799; Town of Niagara-on-the-Lake and Part of Township Lot 118 Niagara Part 3, 30R15270 Municipality: Town of Niagara-on-the-Lake Municipality File No.: 26T-18-20-03 OLT Case No.: OLT-22-002325 Legacy Case No.: PL210223 OLT Lead Case No.: OLT-22-002324 Legacy Lead Case No.: PL210224

Heard: March 29, 2022 by video hearing

APPEARANCES:

Parties	Counsel
1834489 Ontario Inc. and Settler’s Landing Estates Ltd.	Tom Richardson
Town of Niagara-on-the-Lake	Robert Di Lallo

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON MARCH 29, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a Hearing in the matter of appeals by 1834489 Ontario Inc. and Settler’s Landing Estates Ltd. (together referred to as the “Applicant”) pursuant to s. 34(11) of the Planning Act (“Act”) from the failure of the Town of Niagara-on-the-Lake (“Town”) to make a decision with respect to an application for an amendment to Zoning By-law No. 4316-09, as amended (“ZBA”) within the legislative time limit, and pursuant to s. 51(34) of the Act from the failure of the Town to make a decision on an application for approval of a proposed Draft Plan of Subdivision (“Draft Plan”) within the legislative time limit. Both appeals are in relation to the Applicant’s lands which are two separate parcels that form a contiguous property of approximately 4.1 hectares (“ha”) in the Community of Virgil, Town of Niagara-on-the-Lake (“Subject Lands”).

SITE CONTEXT

2The Subject Lands consist of two parcels that form a contiguous property that is currently vacant. It is located on the western boundary of Virgil, Ontario, south of Line 1 Road, west of Harvest Drive, Plantation Drive and Homestead Drive and north of Zinfandel Court. The Subject Lands are irregularly shaped and have frontage of approximately 20 metres on each of Harvest Drive, Plantation Drive and Homestead Drive.

3The surrounding area predominately consists of low density residential single detached dwellings to the north, east and south. There is an approved development on the lands to the west for single-detached dwellings, townhouse dwellings and a stormwater management area (“Konik Estates”). Lands to the northwest and southwest have been designated for future residential development.

4The Subject Lands are currently zoned Virgil Community Zoning District – Residential Development (RD) Zone, in part, and site specific Residential (R2-32), in part. Section 10.6 of the Zoning By-law (“ZBL”) states that the RD Zone shall be developed for residential purposes and the appropriate zone category shall be established through aZBA.

5The Subject Lands are within the Settlement Area in the Town Official Plan (“OP”). The OP designates the Subject Lands as Low Density Residential and permits single detached dwellings.

BACKGROUND

6The Applicant submitted applications for a ZBA and Draft Plan approval to the Town in September 2020.

7In support of the ZBA application, the Applicant submitted the following reports to the Town to assist in their evaluation of the applications:

a. Stage 1-2 Archaeological Assessment Report;

b. Phase 1 Environmental Site Assessment;

c. Functional Servicing Report / Plan;

d. Preliminary General Site Servicing Plan;

e. Grading Plan;

f. Plan and Profile of Street A; and

g. Plan and Profile of Street B.

8The proposed ZBA and Draft Plan originally submitted by the Applicant were requested to facilitate the development known as Settler’s Landing Phase 2 on the Subject Lands. The proposal consisted of a total of 53 residential lots in the subdivision comprised of single-detached dwellings and 1 block for municipal parkland and new public roads. The proposed Settler’s Landing Phase 2 is a continuation of Settler’s Landing Phase 1 which currently exists to the east of the Subject Lands along Harvest Drive and Plantation Drive.

9The original proposal for 1 block for parkland would extend the existing Homestead Park to the west. The park block will add approximately 0.21 ha to the overall park area with a new access proposed via Harvest Drive.

10The existing public roads, being Harvest Drive, Plantation Drive and Homestead Drive, would extend west to provide frontage to the proposed new lots. The proposal would extend both Plantation Drive and Homestead Drive to eventually connect with proposed roads in Konik Estates. The end result would connect Settler’s Landing Phase 1, Settler’s Landing Phase 2 and Konik Estates through road extensions.

11In order to facilitate the development, the Applicant applied for an amendment to the ZBL which is set out at Tab 11 of Exhibit 1. Residential Site-Specific (R2-XX) zoning is proposed to accommodate relief in minimum lot frontage, minimum lot area, maximum lot coverage, minimum front yard setback for the dwelling and garage, minimum exterior yard setback, minimum accessory yard setback, garage setback from the main dwelling and porch encroachments.

12The proposed site-specific zoning for the Subject Lands uses the same zoning provisions as those that were approved by the Town for Settler’s Landing Phase 1.

13The applications were deemed complete by Town staff in November 2020 and circulated for department and agency review. Town staff conducted an Open House with the Applicant and area residents in January 2021 and at the same time presented the applications to the Town’s Urban Design Committee for input. Council held the required Public Meeting in February 2021.

14A report prepared by Richard Wilson, Town Planner, dated December 20, 2021 (“2021 Staff Report”) found at Tab 46 of Exhibit 1 recommended modifications to the proposed Draft Plan and draft plan conditions. The 2021 Staff Report concluded that if the modifications and conditions were implemented, Mr. Wilson would consider the applications to be in compliance with the provisions in the Act.

15The modified Draft Plan prepared by the Town contained 38 lots for single-detached dwelling units that exceed the minimum lot sizes requested by the Applicant in the ZBL amendment. Mr. Wilson submits that this represents a more efficient lotting pattern that provides a range of moderate-sized lots that should be compatible with existing and new development in the area.

16The modified Draft Plan proposed by the Town increased the parkland area within the subdivision to approximately 1.482 ha. This would consist of 0.206 ha from the Applicant (5% parkland dedication) and 1.275 ha that the Town would purchase from the Applicant.

17At a meeting on December 20, 2021 Town Council approved the recommendations in the 2021 Staff Report with amendments (in italics below) which were presented at the Council Meeting. Town Council approved the following:

a. The Draft of Subdivision (File 26T-18-20-03 Revised), for lands known as Settlers Landing Phase 2, as modified and attached as Appendix IV to this report, and subject to the conditions contained in Appendix V to this report, be endorsed as Council’s position on this file;

b. The Zoning By-law Amendment (File ZBA-16-2020), for lands known as Settlers Landing Phase 2, as modified and attached as Appendix VI to this report, be endorsed as Council’s position on this file; and

c. Council direct the Town’s Solicitor to proceed with any negotiations with the owner/appellant and/or preparation for the scheduled Ontario Land Tribunal hearing based on the recommendations of this report.

d. That Council direct Staff and the Town’s Solicitor to:

i. Identify funding sources;

ii. Obtain an appraisal of the land;

iii. Make an offer of purchase to the applicant;

iv. Negotiate a purchase price with the applicant.

SETTLEMENT PROPOSAL

18On the eve of the scheduled hearing the Parties arrived at a settlement. The proposed development now consists of: 49 residential lots for the construction of single-detached dwellings; 1 block to be developed as a park, comprising approximately 1.44 acres and shown as “Park Block” in Exhibit 3; and 1 block for stormwater management, located adjacent to Lot 30 and shown as “SWM Block” in Exhibit 3 (“Proposed Development”).

19The parties submitted to the Tribunal on consent a revised ZBA (“Revised ZBA”) which was entered as Exhibit 4, a revised Draft Plan (“Revised Draft Plan”) which was entered as Exhibit 3 and revised Draft Plan Conditions (“Revised Conditions”) which were entered as Exhibit 5.

20The Applicant and the Town entered into Minutes of Settlement which were entered as Exhibit 6. The Minutes of Settlement requested that the Tribunal approve the Revised ZBA, Revised Draft Plan and Revised Conditions.

THE HEARING

21Nobody other than those affiliated with the Parties attended the hearing.

22The Tribunal marked the following Exhibits at the hearing:

a. Exhibit 1 – Joint Document Book

b. Exhibit 2 – Planning Book

c. Exhibit 3 – Revised Draft Plan of Subdivision

d. Exhibit 4 – Revised Zoning By-law 4316##-22

e. Exhibit 5 – Revised Draft Plan Conditions

f. Exhibit 6 – Minutes of Settlement

g. Exhibit 7 – Witness Statement of Richard Wilson dated February 18, 2022

23The Tribunal had the benefit of oral testimony from one witness, Richard Wilson, who was qualified without objection to provide independent expert opinion evidence in land use planning. Mr. Wilson acknowledged his duty as an Expert to the Tribunal and briefly highlighted his education and 30 years of experience as a land use planner. Amongst his many qualifications, Mr. Wilson advised that he was a Member of the Canadian Institute of Planners and a Registered Professional Planner in the Province of Ontario. He also noted that he has been qualified as an expert on numerous occasions before the Ontario Land Tribunal and its predecessor Tribunals.

24Mr. Wilson advised the Tribunal that he is Manager of Planning for the Town. He processed the original applications for the ZBL amendment and Draft Plan approval and was involved in consultations and discussions which culminated in preparation of his 2021 Staff Report.

25Mr. Wilson advised the Tribunal that the settlement proposal addresses the main issues that the Town had regarding the location, size and configuration of the parkland.

26In summary, it is Mr. Wilson’s professional opinion that the Proposed Development, Revised ZBA, Revised Draft Plan and Revised Conditions represent good planning, are in the public interest and should be approved.

27He opined that with respect to the applicable statutory tests, as described in greater detail below, the settlement proposal:

a. Has appropriate regard to the matters of provincial interest prescribed by section 2 of the Act;

b. Solely with respect to the Revised Draft Plan, has appropriate regard for the criteria prescribed by s.51(24) of the Act

c. Is consistent with Provincial Policy Statement, 2020 (“PPS”)

d. Conforms with the A Place to Grow, Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)

e. Conforms with applicable local planning policy, namely the OP and the Niagara Region Official Plan (“NOP”)

Policy Framework

Planning Act – s. 2 and s. 51(24)

s. 2

28From a policy context, the issues before the Tribunal require the general determinations of whether the Revised ZBL and Revised Draft Plan have sufficient regard to the provincial interests listed in s. 2 of the Act.

29Mr. Wilson referenced s. 2 of the Act and spoke to the subsections relevant to the settlement proposal, being subsections (h), (j), (n), (p) and (r). Mr. Wilson opined that overall, he is satisfied that the settlement proposal has regard to matters of Provincial interest.

30Mr. Wilson noted that the main public interest was the provision of suitable parkland for existing and future residents and that the enlarged park addresses this issue. In addition, he felt that the location of the Proposed Development is appropriate given that it is located between an existing residential neighbourhood and Konik Estates, which are abutting lands to the west and have Draft Plan approval for future residential use.

31The Tribunal accepts the uncontested evidence of Mr. Wilson and finds that the Proposed Development and the planning instruments required to implement the settlement proposal have appropriate regard for s. 2 of the Act.

S. 51(24)

32The criteria to appropriately assess the Revised Draft Plan are set out in s. 51(24) of the Act. Mr. Wilson reviewed the Revised Draft Plan against the criteria of s. 51(24) of the Act. He made specific reference to s. 51(24) (a), (b), (c), (d), (e), (f), (h), (i), (j) and (k).

33Mr. Wilson is of the opinion that the Revised Draft Plan has regard for matters of Provincial interest set out in s. 2 of the Act. It is in the public interest as the Revised Draft Plan provides additional parkland for existing and future residents through the extension of the existing park.

34The Revised Draft Plan provides a mix of lot sizes. Mr. Wilson noted that this is an improvement over the original application which proposed large and deep lots which the Town was opposed to. The revised lot sizes are compatible and are a continuation of the general land use pattern in the neighbourhood. The Revised Draft Plan also proposes a continuation of (3) three existing municipal roadways which enhances compatibility.

35The Revised Conditions were prepared jointly between the Parties and filed with the Tribunal on consent. Mr. Wilson noted that the Revised Conditions are reasonable and appropriate for development of the Subject Property. He further opined that the Revised Conditions conform with s. 51(25) of the Act.

36The Tribunal accepts the evidence of Mr. Wilson in its entirety. The Revised Draft Plan, subject to the Revised Conditions, have had appropriate regard to the criteria set out in s. 51(24) of the Act.

37Pursuant to s. 51(25) of the Act, the Tribunal finds that the Revised Conditions are reasonable and appropriate for the Proposed Development.

Provincial Policy Statement, 2020

38The Provincial Policy Statement (“PPS”) establishes land use policy requirements for communities and decisions under the Act must conform to the PPS.

39Mr. Wilson took the Tribunal to the PPS and opined that the settlement proposal is consistent with the PPS. The previous concern that the Town had regarding parkland has been addressed by the settlement proposal.

40Mr. Wilson referenced his 2021 Staff Report which provides a summary of the relevant PPS policies. During his testimony, Mr. Wilson took the Tribunal through the following specific policies: 1.1.1(b), 1.1.3.6 and 1.5.1.

41Policy 1.1.1(b) provides that healthy, liveable and safe communities are sustained by accommodating an appropriate mix of residential housing types. The settlement proposal provides for an appropriate range and mix of housing types.

42Policy 1.1.3.6 indicates that new development in designated growth areas should occur adjacent to the existing built-up area allowing for efficient use of land and services. Mr. Wilson noted that the Subject Property is designated as a Settlement Area (urban area) and a designated growth area under the PPS. He further pointed out that the Subject Property is located adjacent to an existing development and that he is satisfied that the settlement proposal satisfies this policy.

43Policy 1.5.1 directs for the promotion of healthy and active communities by planning public streets that are safe and increase connectivity. Mr. Wilson opined that the proposed street network, which includes sidewalks, and the enlarged parkland meets this policy direction.

44The Tribunal accepts the uncontested evidence of Mr. Wilson and finds that the Proposed Development and the planning instruments required to implement the settlement proposal are consistent with the PPS. Consistency is demonstrated through the mix of housing types, increased parkland and the extension of public streets with incorporated sidewalks.

A Place to Grow, Growth Plan for the Greater Golden Horseshoe

45The Growth Plan is the land use plan relevant to the Town. The Subject Lands are located in the Settlement Area within the Growth Plan and identified as “Designated Greenfield”. Mr. Wilson opined that he is satisfied that the settlement proposal conforms to the Growth Plan.

46Policy 2.2.1.4 of the Growth Plan supports the achievement of complete communities that provide a range and mix of housing options and goes further to include the support of the provision of convenient access to safe, publicly accessible open spaces and parks. Mr. Wilson testified that this policy was the main focus for the Town when reviewing the Applicant’s original applications. It is Mr. Wilson’s opinion that the settlement proposal has improved on the original applications by proposing an enlarged park that has greater street frontage allowing access to the broader community.

47Mr. Wilson also noted that the settlement proposal contributes to a complete community and the reconfigured park addresses concerns that the Town originally had regarding large lot sizes proposed in the original applications. The large lot sizes have been eliminated with the expansion of parkland.

48Mr. Wilson’s opinion is that overall the settlement proposal conforms to the Growth Plan and the Tribunal concurs with Mr. Wilson’s opinion.

Niagara Region Official Plan (“NOP”)

49The NOP identifies the Subject Lands as “Designated Greenfield Area” and indicates that these areas will be planned as compact, complete communities by, in part, ensuring that Greenfield development is sequential, orderly and contiguous with existing built-up areas.

50Mr. Wilson took the Tribunal to Policy 4.C.6.1 which requires a minimum combined gross density target of 50 people and jobs per ha across all Designated Greenfield Areas. Mr. Wilson noted that this same density target is also a policy in the OP. He testified that this density target is not achieved with the settlement proposal, but stressed that this is not a requirement (emphasis added). This overall density target must be met on a community wide basis, not on an individual site basis. Mr. Wilson is satisfied that the establishment of a larger park lowers the net density target for the Subject Property and advised the Tribunal that there are other opportunities in the immediate area which will assist in achieving the required overall greenfield density target.

51The Tribunal was persuaded by Mr. Wilson’s uncontested evidence and accepts that the establishment of a larger park lowers the net density target in this case. The Tribunal is satisfied that the required overall greenfield density target can be met through other future opportunities in the immediate area. The Tribunal finds that the settlement proposal will contribute to the achievement of a complete community in conformity with the NOP.

Town of Niagara-on-the-Lake Official Plan

52The Subject Lands are within the Settlement Area of the OP and are designated Greenfield Areas. Mr. Wilson took the Tribunal to a number of Policies in the OP that are relevant to the settlement proposal.

53Section 6A (3.2) of the OP provides policies to manage growth and require coordination of land use planning and infrastructure planning. Mr. Wilson noted that the Proposed Development on the Subject Property and the future development on the abutting Konik Estates property represent a coordinated effort for installation of required services and infrastructure. The Proposed Development along with other future developments in the area will provide for a range of lot sizes for single detached dwellings and other medium density housing on abutting lands to achieve a complete community and provide a mix of housing types.

54Section 6A (5.4) sets out criteria for urban design guidelines that will apply to Greenfield applications. The relevant criteria include (d) varying lot sizes and shapes, (f) provision of pedestrian connections and (i) garage guidelines. Mr. Wilson opines that the Proposed Development achieves the urban design guideline criteria through the provision of varying lot sizes and shapes. There are also several pedestrian connections proposed throughout the neighbourhood with sidewalk connections to other neighbourhoods and to the park. The Revised ZBL relating to width and setbacks for garages allows for less of an impact on the public realm and streetscape.

55Section 9 of the OP provides additional residential policies and Mr. Wilson is satisfied that the Proposed Development provides for a mix of housing and is compatible with the existing neighbourhoods to the east, south and north and the emerging neighbourhood to the west (Konik Estates).

56Mr. Wilson opined that through the Revised Conditions the settlement proposal will meet the servicing policies of the OP. The larger park contemplated in the settlement proposal meets the policy requirement in the OP. The park will be centrally located and accessible as it will front onto a municipal roadway.

57The Tribunal accepts the evidence of Mr. Wilson and concurs that the settlement proposal is in conformity with the policies in the OP.

CONCLUSION

58The Tribunal has carefully reviewed the documentary materials provided and considered the uncontested evidence of Mr. Wilson and finds the proposed instruments have regard to the matters of provincial interest found in s. 2 of the Act, are consistent with the PPS, conform to the Growth Plan, NOP and OP. They represent good planning and are in the public interest.

59The Tribunal finds that the Revised Draft Plan, subject to the Revised Conditions have had appropriate regard to the criteria set out in s. 51(24) of the Act and the Revised Conditions are reasonable and appropriate for the Proposed Development pursuant to s. 51(25) of the Act.

60The Tribunal finds that the Revised ZBA, Revised Draft Plan and Revised Conditions as presented are appropriate to ensure the proper implementation and development of the settlement proposal.

61The Tribunal finds that the settlement proposal and Proposed Development as presented is an appropriate and desirable addition to the area, represents good land use planning, is in conformity with and meets the objective of the requisite public policy and is in the public interest.

ORDER

62THE TRIBUNAL ORDERS that:

I. The appeal pursuant to s. 34(11) of the Act is allowed in part and the Town is directed to amend its Zoning By-law No. 4316-09, as amended, as set out in Schedule 1 to this Order.

II. The appeal pursuant to s. 51(34) of the Act is allowed in part and the revised draft plan dated April 6, 2021, revised March 28, 2022 is approved subject to the fulfillment of the conditions set out in Schedule 2 to this Order.

III. Upon issuance of the Tribunal’s final order, the Town of Niagara-on-the-Lake, pursuant to subsection 51(56.1) of the Act shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

“C. Hardy”

C. HARDY

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.