Mod-Aire Homes Limited v. Bradford West Gwillimbury (Town), 2022 CanLII 28188

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 07, 2022

CASE NO(S).:

OLT-22-002584

(Formerly PL170847)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Mod-Aire Homes Limited

Subject:

Proposed Official Plan Amendment No. BWG-OPA-1727

Municipality:

Town of Bradford West Gwillimbury

OLT Case No.:

OLT-22-002584

Legacy Case No.:

PL170847

OLT Lead Case No.:

OLT-22-002584

Legacy Lead Case No.:

PL170847

OLT Case Name:

Mod-Aire Homes Limited v. Bradford West Gwillimbury (Town)

Heard:

December 8, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Mod-Aire Homes Limited

Bruce Engell

Town of Bradford West Gwillimbury

Leo Longo

County of Simcoe

Marshall Green (“in absentia”)

Milford Development Limited

Mark Flowers

DECISION DELIVERED M.A. SILLS AND ORDER OF THE TRIBUNAL

1This was a settlement hearing of an appeal brought by Mod-Aire Homes Limited (“Mod-Aire”) from the passing of Official Plan Amendment No. 27 (“OPA 27”) for the Town of Bradford West Gwillimbury (the “Town”). The appear was brought pursuant to s. 17(36) of the Planning Act.

2The lands subject to OPA 27 are generally located on the north side of Holland Street east of Professor Day Drive, south of Northgate Drive and west of Thornton Avenue, and form the “Western Gateway” into Downtown Bradford. The Western Gateway lands are under three ownerships; Mod-Aire, Millford Development Limited (“Millford”) and Westin Homes Ltd.

3Mod-Aire owns approximately 18 acres of undeveloped lands at the north-east corner of Professor Day Drive and Holland Street (the “Mode-Aire Lands”). Mod-Aire is the sole Appellant of OPA 27.

Background to OPA 27 and the Appeal

4The Town’s Official Plan (“OP”) provides a policy framework for guiding development and the protection of the natural resources of the municipality over a 20-year timeframe. The Planning Act requires municipalities to review its OP every five years to ensure that is it compliant with all relevant legislation and policies.

5In February 2014, Town Council passed a resolution directing staff to undertake a review of the in-force OP adopted in 2002.

6In March 2017, Town Council adopted OPA 27 and subsequently forwarded the implementing by-law to the County of Simcoe (the “County”) for approval. On June 27, 2017, County Council approved OPA 27 with modifications. Mod-Aire subsequently filed an appeal of OPA 27.

The Proposed Policy Modifications

7The appeal by Mod-Aire is specific to Section 2 – Details of the Amendment clause, ss. 3.4.4.3, and ss. (d) of Policy 5.3.11 of OPA 27.

8The proposed policy modification to Section 2 effects a minor change to the text in ss. 3.4.4.3. and is corrective in nature. The original wording stated:

Downtown Bradford is planned to accommodate an additional 2,700 new residents beyond the 2016 population.

9The Proposed Policy Modification reads:

Downtown Bradford is planned to accommodate an additional 2,700 new residents between the 2016 And 2031 planning horizon.

10Explanatory Note: The original wording was open-ended as to the time frame for the 2,700 units to be constructed, whereas the Proposed Policy Modification provides clarity to the time horizon during which the units are anticipated to be constructed.

11The balance of the Proposed Policy Modifications relate to Policy 5.3.11 (d).

12The preamble to Policy 5.3.11 Special Policy Area – Professor Day Drive/Melbourne Drive to just west of Thornton Avenue (Western Gateway) identifies that:

Lands between Professor Day Drive/Melbourne Drive to just west of Thornton Avenue form the western gateway into Downtown Bradford. These lands represent a major intensification opportunity with the core of the Bradford urban area and are primed to become a focal point for life in the community. Where there is a conflict between the following additional policies elsewhere in this Plan, these policies shall apply:

13OPA 27 Policy 5.3.11 (d) as adopted reads:

A master plan that addresses conformity with the policies of this Plan and urban design brief shall first be required in support of any zoning by-law amendment to permit new development.

14The remaining Proposed Policy Modifications replace adopted policy 5.3.11 (d) with the following:

(d) “These lands are bisected by a corridor with an easement for hydro services, and the development of these lands shall occur in an integrated and coordinated manner, and lands respectively located on the east and west sides of the hydro services corridor may be developed independently, subject to demonstration of conformity with the following:

i. They shall contain a distribution of land uses and transportation network that conform to all applicable policies of this Plan, and shall be supported by appropriate plans, studies, assessments, reports as determined through formal pre-consultation with the Town

ii. Any development proposal for these lands shall: a) include an urban design brief that demonstrates conformity with all applicable urban design guidelines and policies for these lands; and b) demonstrate how the proposed development may be integrated with, and shall not prejudice the future development of, adjacent lands within the Special Policy Area.

iii. They shall include a future public road that traverses the lands, with such future public road connecting with Holland Street West in alignment with its existing intersection with Miller Park Avenue to the south, and connecting with Professor Day Drive in alignment with its existing intersection with the Bradford District High School site (i.e. 70 Professor Day Drive) to the west.

iv. The Town may limit the extent of the development permitted to occur on either west or east sides of the hydro services corridor until such time as the entirety of the aforementioned future public road is constructed to the Town’s satisfaction.

v. The development of lands in Special Policy Area 5.3.11 shall include land for a municipal park with a minimum area in accordance with the maximum area requirements of the Planning Act, entirely exclusive of lands located within the hydro services corridor. Alternatively, in coordination with one or more landowner(s), the Town may seek land for a municipal park in accordance with the ratio contemplated in the Town’s Leisure Services Master Plan. In the event that achievement of a municipal park of the aforementioned land area results in the achievement of an area exceeding the threshold of the Planning Act on one or both side(s) of the hydro service corridor, such over-dedication may be addressed through agreement between the owner(s) of the affected land(s) and the Town.

vi. To enable development of the lands to occur in the manner envisioned of the “Western Gateway” into downtown Bradford, the development of lands in Special Policy Area 5.3.11 shall include the preservation of larger blocks of land adjacent to Holland Street West and Professor Day Drive, to support the intensity of development identified in policies of Section 5.3.11 to this Official Plan.

vii. Further to Subsection 5.3.11(a) of the Official Plan, Council may require that development proceed for a portion of the lands identified in Subsection 5.3.11(d) vi., above, prior to or concurrently with development elsewhere in the Western Gateway lands.”

Preliminary Matter

15Millford Development Limited (“Millford”) is the owner of a 13-acre parcel of land on the north side of Holland Street West between Professor Day Drive, and a 30-metre (“m”) wide hydro corridor that runs in a north-south direction from Holland Street West to Northgate Drive, and includes a Town easement for sanitary and storm sewer (collectively, the “Millford Lands”).

16With the consent of the parties, Millford was granted (Non-Appellant) party status at the Case Management Conference (“CMC”) on September 16, 2021. At that time, the Tribunal specifically identified that as a non-appellant party, Millford’s involvement in the hearing was conditional upon, and subject to, the proviso set out in Rule 8.3 of the Ontario Land Tribunals Rules of Practice and Procedure (the “Rules”):

8.3 Non-Appellant Party A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) and 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering under an issue raised in an appeal by an appellant party and may participate fully in the proceeding to the extent that the issue remains in dispute. A non-appellant party has no independent status to continue an appeal should that appeal be withdrawn by an appellant party.

17In the course of the CMC, the Tribunal was informed; first, that Mod-Aire, the Town and Millford were involved in discussions; and second, that Mode-Aire and the Town had reached a tentative settlement of the appeal which was expected to be considered by Town Council at a meeting on September 21, 2021.

18Mr. Engell subsequently confirmed that at an in-camera meeting on September 21, 2021, Town Council considered both the policy modifications being proposed by Mode-Aire (the “Mod-Aire Modifications”), and the policy modifications being proposed by Milford (the “Milford Modifications”), and ultimately, supported only the Mod-Aire Modifications. Town Council further directed that Minutes of Settlement (“MOS”) be entered into with Mod-Aire to resolve the sole appeal of OPA 27.

19In correspondence to the Tribunal on November 24, 2021, Mr. Flowers, acting on behalf of Millford, wrote:

Our client, Millford Development Limited, remains opposed to the proposed modifications resulting from the settlement between Mod-Aire Homes and the Town. As a result, we will be calling a full case in opposition at the hearing.

20In an email to the Tribunal on December 1, 2021, Mr. Engell reported that the settlement agreement between Mod-Aire and the Town would be addressed at a hearing on December 8, 2021. That same email serves notice in accordance with s. 17(39) of the Planning Act, of the unconditional withdrawal by Mod-Aire of the appeal of OPA 27 in its entirety, save and except for policies 3.4.4.3 and 5.3.11 (d), and further requests that the Tribunal notify the County as the approval authority for OPA 27 of Mod-Aire’s scoped appeal.

21At the start of the settlement hearing, Mr. Flowers argued that participation by Millford in the hearing was necessary to the exercise of fairness and due process. In that regard, he told the Tribunal that as Millford was content with the wording of OPA 27 as adopted by Town Council and approved by the County in 2017, there was no reason for Millford to file an appeal. However, had Policy 5.3.11(d) been approved in 2017 in the form that is now being proposed by Mod-Aire and the Town, “Millford most assuredly would have appealed to the Tribunal at that time, given its significant concerns with the proposed modifications”.

22It is of significance here that in granting (non-appellant) party status to Millford at the time of the CMC the Tribunal specifically identified the ‘sheltering’ requirement set out in Rule 8.3; the same is recorded in the Decision and Order of the Tribunal issued on October 1, 2021, and as was pointed out by Messrs. Engell and Longo, Millford did not seek Leave to Appeal or file a Request for Review of that Decision.

23In this event, Mod-Aire and the Town have reached a settlement - there are no remaining issues in dispute, and as such, Millford no longer holds status in this matter.

24The point made by Mr. Flowers, albeit, a seemingly logical rationale, in my view cannot be seen to overcome the well-settled limitation to the standing of a non-appellant party, pursuant to Rule 8.3 of the Ontario Land Tribunals Rules of Practice and Procedure (the “Rules”); and, before that, the Local Planning Appeal Tribunal Rules of Practice and Procedure and the Ontario Municipal Board Rules of Practice and Procedure.

25The Rules are made under the authority of s. 13 (1) of the Ontario Land Tribunal Act, 2021, and s. 25 (1) of the Statutory Powers Procedure Act, as amended, and this is not the forum in which to launch a challenge to a Tribunal Rule.

26That being said, the Tribunal must be satisfied that the Proposed Policy Modifications are appropriate from a land use planning perspective. As the planning consultant retained by Millford (Allyssa Hrynyk) prepared and submitted a detailed planning analysis in advance of this hearing, the Tribunal elected to exercise its authority under s. 18 (a) (iii) of the Ontario Land Tribunal Act to call Ms. Hrynyk as a witness and examine her on the contents of her evidence specific to those aspects of the Proposed Policy Modifications that are of concern to her in her capacity as a professional planner.

Evidence of Allyssa Hrynyk

27Ms. Hrynyk is a Registered Professional Planner and a Member of the Canadian Institute of Planners and was retained by Millford in October 2021.

28Ms. Hrynyk stated she had several concerns, including that Millford was not consulted in the drafting of the Proposed Policy Modifications, which in her opinion, does not provide for a fair, open and transparent planning process in accordance with the Planning Act.

29Ms. Hrynyk’s concerns relate to Proposed Policy Modifications 5.3.11 (d) (iii) to (vii), and generally include that: these policies contradict Policy 5.3.11 (a) and the background work completed in support of OPA 27; prescribe development requirements that may not be warranted or are inappropriate for the Western Gateway; create unjustified and unnecessary requirements on the Millford Lands that are not based on, or supported by, any technical or design studies; are inconsistent with the Bradford West Gwillimbury Official Plan (“BWGOP”); are more prescriptive in their conformity requirements for new development than the adoptive and approved policies; and are not representative of good planning. It is her professional opinion that the existing policies in the BWGOP already provide sufficient direction.

30Proposed Policy Modifications 5.3.11 (d) (iii) and (iv): It is Ms. Hrynyk’s position that the planning of transportation networks, the need for public roads, and future road locations, widths and classifications should be supported by appropriate traffic/transportation studies that consider traffic flows, traffic needs and demand, future development, intersections capacities, and the conditions of existing roads in the vicinity. To her knowledge no transportation or technical studies have been conducted.

31In her opinion, the requirement for a public road and its specific routing/alignment as identified in the Proposed Policy Modifications is contrary to proper master planning and transportation planning. More appropriately, the planning of transportation networks, the need for public roads, and future road locations, widths and classifications should be supported by appropriate traffic/transportation studies which consider traffic flows, traffic need and demand, future development, intersection capacities, and existing roads in the vicinity. The Council-adopted version of policy 5.3.11 (d) requiring a master plan would provide an opportunity to conduct transportation studies for the lands prior to determining the need for new roads.

32Proposed Policy Modifications 5.3.11 (d) (v): The Proposed Policy Modifications set out specific requirements with respect to providing a municipal park on the Western Gateway lands. In her professional opinion, the related parkland requirement policy is not only unnecessary, but as written, complicates the requirements of parkland dedication in the BWGOP which are usually determined at the development application stage; prohibits cash-in-lieu for parkland; and is not reflective of good planning. It is her position that the BWGOP already provides the appropriate policy direction and guidance to investigating and creating new public parks.

33Of particular concern to her from a planning perspective, is that the proposed parkland policy also stipulates that the minimum area of a municipal park is to be “exclusive of lands located within the hydro services corridor”. As the hydro services corridor is located solely on the Millford lands this modification would clearly impact Millford. Ms. Hrynyk maintains the rationale for this policy modification is unclear.

34Proposed Policy Modifications 5.3.11 (d) (vi) and (vii): Policy (d) (vi) requires “the preservation of larger blocks of land adjacent to Holland Street West and Professor Day Drive to support the intensity of development identified in the policies of s. 5.3.11. In her opinion, this requirement is not consistent with the recommendations or visioning from earlier work as it affects all the lands adjacent to Professor Day Drive, and may not necessarily be the appropriate or desired built form along Professor Bay Drive.

35In regard to Policy (d) (vii), she maintains the intent of this policy is unclear, and to her knowledge no study or analysis to support a phasing policy has been completed. In her opinion, any required phasing could be determined through a subsequent development process, with detailed studies to determine if specific phasing is appropriate and justified.

36Lastly, she emphasized that although all the lands adjacent to Professor Day Drive are owned by Milford, the proposed modification was prepared by the Town and Mod-Aire, without Milford’s involvement, which in her opinion, is contrary to an open and transparent planning process.

Evidence of Michael Smith

37Mr. Smith is a Registered Professional Planner and a Member of the Canadian Institute of Planners and the Ontario Professional Planners Institute. He was retained by Mod-Aire in August 2018 to provide planning advice regarding the future development of its lands within the context of the Downtown Area OPA 27.

38Mr. Smith proffered detailed contextual and land use planning evidence and opinion, including a detailed analysis of the Proposed Policy Modifications. Overall, it is his professional opinion that the Proposed Policy Modifications that lead to the settlement of the appeal are consistent with the Provincial Policy Modification, 2020 (“PPS”), conform with both the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”) and the County of Simcoe Official Plan (“COP”), and represent good planning.

39Mr. Smith explained that the intent of the proposed policies is to provide a balance between the urban design objectives of the Town and the timing of development by individual landowners/developers; in other words, so that one landowner/developer would not be tied to the development time frame of the other.

40The requirement for a Master Plan for the Western Gateway lands in the future does not include any particular content for that plan, nor a process by which it gets created, reviewed or approved. The concern here is that the landowner that wants to proceed first either has to come up with a Master Plan affecting all of the land parcels, without the input of those other landowners, or be required to wait until those landowners are ready to provide that input, which is likely to be when they are ready to proceed with development. In his opinion, neither scenario is appropriate nor would it result in good planning.

41Mr. Smith said he worked with the Town planners to replace the requirement for a Master Plan with policies to provide guidance to be applied rather than deferring to a future Master Plan. The policies aim to provide a balance between the urban design objectives of the Town and the timing of development by individual landowners

42For the purpose of this decision, the Tribunal has detailed the planning rational and opinions of Mr. Smith as they relate to the Proposed Policy Modifications identified in the witness statement of Ms. Hrynyk as opposed by Millford.

43Policy (iii): This policy modification addresses appropriate connectivity within the Western Gateway. Mr. Smith submits that given the nature of the two identified arterials, it is appropriate to minimize access points along the frontages, and to channel traffic to two main access points, on each side of the arterial. The existing Professor Day Drive intersection is signalized and is an appropriate distance from the Holland Street intersection, and in his view, it is only logical for a new road to connect as the eastern leg of that signalized intersection.

44Along Holland Road, the proposal is to have a new road connect as a north leg of the existing Miller Park Avenue intersection. Although that intersection is not currently signalized, it would be an appropriate location for this intersection and would allow for future signalization once warranted pursuant to a traffic study. Aside from requiring a public road with those two connection points, the policy does not dictate the location of that road.

45Policy (iv): This policy modification is principally intended to ensure that prior to the public road being in place, development in either development pod can be reached by emergency services. This typically means two points of ingress into a development area. Mr. Smith said he has been working with Mod-Aire, and has discussed with the Town, a conceptual development plan. The conceptual development plan he prepared has the entry road with a median along the full length of the road to the first easterly road connection, ensuring that there are two points of access for emergency vehicles. This plan illustrates how development could proceed prior to the road link between the lands to either side of the hydro service corridor. Once the public road is in place, development within the Western Gateway should be easily accessed by emergency services with two points of egress. It is his view that if the Millford lands were to be developed first, a similar approach would be feasible.

46Policy (v): This policy modification relates to parkland for the Western Gateway which will be implemented through the development process at the time of development application review. This policy provides for the maximum which can be secured through the Planning Act, but also leaves open the potential to exceed that amount, recognizing that any excess lands have to be obtained by the Town outside of the dedication requirements of the Planning Act. The requirement for parkland will be addressed during the preparation of the urban design brief which is a prerequisite to the submissions of a development application.

47Policy (vi): This policy modification seeks to make clear that in order to secure the form of development envisaged in the Western Gateway, the Town does not support the further division of the large Millford and Mod-Aire landholdings into smaller parcels, except in accordance with an overall development plan for each development pod.

48Policy (vii): This policy sets out that Council may require, for example, that the commercial/mixed-use development along the frontage of Holland Street take place prior to the internal residential land uses. This will be addressed with staff at the time of formal preconsultation, and if necessary, with Council to get its direction. However, it does provide flexibility in that the residential development may occur in advance of the Holland Street commercial/mixed use.

49In concluding, Mr. Smith confirmed that the Proposed Policy Modifications seek to establish land use and urban design policies to guide development while allowing for flexibility in order not to jeopardize timely development of the lands. In his professional opinion, these policy modifications as part of OPA 27 are consistent with the PPS, conform with the GP and the COP, and represent good land use planning. It is his recommendation that the Proposed Policy Modifications to OPA 27 be approved.

Evidence of Michael Wiebe

50Alan Wiebe is the Manager of Community Planning for the Town of Bradford West Gwillimbury. He is a Registered Professional Planner, and a Member of the Canadian Institute of Planners and the Ontario Professional Planners Institute.

51Mr. Wiebe affirmed he has read the Affidavit of Mr. Smith and concurs with its contents. It is also his opinion that the Proposed Policy Modifications are consistent with the PPS, conform with the GP and the COP, are appropriate and represent good planning.

52Pursuant to s. 16(1)(a) and s. 16(2) of the Planning Act, these modifications to OPA 27 represent an appropriate articulation of the objectives of the Corporation of the Town of Bradford West Gwillimbury for the affected lands, and are an appropriate description of the measure and procedures proposed to attain those objectives. It is also his recommendation that these policy modifications be approved.

Findings and Disposition

53In determining this matter the Tribunal has reviewed the documentary evidence, had due regard to the issues and concerns identified by Ms. Hrynyk, considered the evidence and opinions of Messrs. Smith and Wiebe and the submissions of Messrs. Engell, Longo and Flowers.

54Although having no status in this hearing, the Tribunal acknowledged the concerns of Millford raised in the evidence outline and testimony of Ms. Hrynyk, the argument and written submissions of Mr. Flowers. Town Council also considered Millford’s concerns and proposed policy modifications, but ultimately accepted the planning policy analysis and recommendations of Messrs. Smith and Wiebe, and adopted the Proposed Policy Modifications. It is noteworthy that as Millford does not have status in this appeal the policy modifications being proposed by Ms. Hrynyk are not before this Panel in this appeal.

55The Tribunal has been persuaded by the evidence of Mr. Smith, as endorsed by Mr. Wiebe, that the policy modifications being proposed to Policy 5.3.1 (d) of OPA 27 have merit from a land use planning perspective and warrant approval. The Tribunal has had regard for the decision of Town Council and is satisfied that OPA 27, as modified, conforms to the policy directives of the GP and the COP, and are consistent with the policies of the PPS.

56These policy modifications provide a framework to guide the overall Downtown Revitalization Strategy and will assist the Town in realizing its vision for the future development of the Western Gateway in an progressive, expeditious and organized manner that is consistent with, and premised on, the principles of good land use planning and in the greater public interest.

ORDER

57The Tribunal orders that the appeal is allowed in part, and Amendment No. 127 to the Official Plan for the Town of Bradford West Gwillimbury is modified as set out in paragraph 14 of this Order, and as modified is approved.

“M.A. Sills”

M.A. SILLS

VICE-CHAIR

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.