Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 20, 2022

CASE NO(S).: OLT-21-001907 (formerly PL200514)

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

Applicant and Appellant: 1494282 Ontario Inc.

Subject: Request to amend the Official Plan - Failure of the City of Peterborough to adopt the requested amendment

Existing Designation: Commercial

Proposed Designated: High Density Residential

Purpose: To permit the use of the lands for high density, multi-unit residential supporting a maximum of 76 units and a maximum building height of 7 storeys with surface parking facilities

Property Address/Description: 1176 - 1182 Armour Road

Municipality: City of Peterborough

Approval Authority File No.: 019202

OLT Case No.: OLT-21-001907

Legacy Case No.: PL200514

OLT Lead Case No.: OLT-21-001907

Legacy Lead Case No.: PL200514

OLT Case Name: 1494282 Ontario Inc. v. Peterborough (City)

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

Applicant and Appellant: 1494282 Ontario Inc.

Subject: Application to amend Zoning By-law No. 97-123 - Refusal or neglect of City of Peterborough to make a decision

Existing Zoning: 1176 Armour Rd: SP.245 – Special Commercial District 1182 Armour Rd: R.1, 1e, 2e, 4e

Proposed Zoning: Modified R.5 – Residential Zoning District with site specific regulations, and OS.1 – Open Space District

Purpose: To permit the use of the lands for high density, multi-unit residential supporting a maximum of 76 units and a maximum building height of 7 storeys with surface parking facilities

Property Address/Description: 1176 - 1182 Armour Road

Municipality: City of Peterborough

Municipality File No.: Z1909

OLT Case No.: OLT-21-001913

Legacy Case No.: PL200515

OLT Lead Case No.: OLT-21-001907

Legacy Lead Case No.: PL200514

Heard: January 24 to February 1, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

2160288 Ontario Inc. (the “Appellant”)

J. Ewart*

City of Peterborough (the “City”)

A. Barber*

Janis O’Heron

J. O’Heron (self-represented)

DECISION DELIVERED BY M. RUSSO AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal are two appeals submitted by the Appellant related to:

i. the failure of the City to adopt the requested Official Plan Amendment (the “OPA”) to change the designation of the property at 1176 – 1182 Armour Road (the “subject lands”) from Commercial to High Density Residential to permit the use of the property for high density, multi-unit residential development of 76 residential units in a building with a maximum height of 7 storeys with surface parking; and

ii. the refusal or neglect of the City to make a decision with respect to an application to amend Zoning By-law No. 97-123 (the “ZBL”) to change the zoning of 1176 Armour Road from SP 245 – Special Commercial District and 1182 Armour Road from R.1, 1e, 2e 4e to Modified R5 – Residential Zoning District with site specific regulations, and OS1 – Open Space District (the “ZBLA”).

2In order to permit the proposed residential development, the OPA would:

i. amend Schedule A of the City OP to change the designation from Commercial to Residential;

ii. amend Schedule E of the City OP to change the designation from Low Density to High Density;

iii. amend Schedule N of the City OP to change the designation of the subject lands from Neighbourhood Commercial to High Density Residential; and

iv. delete s. 10.4.3.9 of the Auburn North Secondary Plan, which refers to the criteria to be considered in evaluating a commercial land use change.

3In order to permit the proposed residential development, the Zoning Amendment would:

i. change the Zoning on the former 1176 Armour Road from SP.245 – Special District (Commercial) to a Special District (Residential); and

ii. change the Zoning on the former 1182 Armour Road from R.1, 1e,2e,4e – Residential District, to a Special District (Residential).

4In 2017, the Appellant pursued a concept for redevelopment consisting of a two-storey mixed use development with commercial and residential land uses on the southernly portion of the subject lands known as 1176 Armour Road pursuant to the existing SP.245- Commercial Zoning District. Minor variances (File A36/17) were approved to allow an increase in the amount of commercial floor space, an increase in the commercial unit size and reduction in the width of landscaped open space along the northerly lot line.

5The Appellant acquired the northernly parcel (1182 Armour Road) in 2019 increasing the subject lands to their present size. Having pursued the option of a commercial development the Appellant has indicated that the demand and economic viability is not present on the subject lands for the commercial uses allowed, thus, they no longer wish to pursue commercial uses on the property and now as indicated have applied and proposed to amend the OP and ZBL to facilitate the redevelopment of both parcels (1176 and 1182 Armour Road) to support a high density, multi unit residential use only development, with a maximum building height of 7 storeys.

6A Public Open House was hosted by the Appellant on August 28, 2019, providing an overview of the original development proposal with concept renderings and the concept site plan. Approximately 50 people attended the Open House and the Appellant responded to questions of those in attendance. Concerns raised by the attendees focused on the increased traffic along Armour Road and the interface of the proposed Armour Road driveway and the Rotary Trail connection with Armour Road, unsafe crossing of Armour Road at the existing trail connection, the height of the proposed building and compatibility with the surrounding neighbourhood, and landscape treatment of the proposed parking area, downstream sanitary sewer constraints, tree removal and placement of fill on the property.

7The Appellant addressed some of the concerns raised, worked with their consultants and City Planning Staff and submitted a revised concept site plan to address some of the comments received from the circulation of the application, including public comments. The revised concept site plan included a proposed environmental buffer area, the elimination of the proposed vehicular access to Armour Road, an increase in the number of proposed parking spaces on site, a revised fire access route, a depicted garbage truck route, and deleted the originally proposed three-space tandem parking layout. The Appellant also provided a Shadow Study, Context Study and revised Concept Elevations along with numerous technical studies to address pertinent planning issues raised by staff but also to address concerns expressed about compatibility of the built form and height.

8Otonabee Region Conservation Authority (“ORCA”) had no objections, however, did request further details to be provided at Site Plan Approval stage to facilitate detailed design and clarify alternative solutions for stormwater outlet direction and impacts of the proposed development on Thompson Creek.

9City planning staff had recommended approval of the applications citing several issues of greater specificity will be dealt with at the Site Plan Approval stage. However, at City Council’s July 27, 2020, meeting, Council chose to differ the applications, seeking:

a) an independent traffic study be conducted and provided; and,

b) an independent wetland study be conducted and provided.

10With Council’s failure to adopt the requested OPA and failure to make a decision on the sought ZBLA within statutory timeframes of the Act, the Appellant proceeded to appeal the applications to the Tribunal.

Site Context and Area

11The subject lands are located at the intersection of Cunningham Boulevard and Armour Road. The subject lands are open with the exception of a treed area behind the house, which was originally on the lot at 1182 Armour Road (now demolished) which is in the north-west corner of the combined lot. The open area fronting on Armour Road slopes gently down to the east until it reaches a steeper incline to a lower area, which is roughly parallel to the eastern lot boundary. The lands to the east are part of the floodplain and natural area associated with Thompson Creek.

12The land uses to the north and south are primarily single detached residential. The land uses to the east and west are natural areas associated with the Otonabee River across Armour Road and the Thompson Creek to the east.

13The subject lands are located in an area known as Auburn North. This is essentially an island created by the Otonabee River and Thompson Creek. It is between the Otonabee River and the Trent Canal. The lands rely on Armour Road for access either north to Nassau Mills Road or south to Parkhill Road East.

14The subject lands are approximately 0.85 hectares (2.1 acres) in size and previously contained a detached dwelling and accessory buildings (presently demolished) on the smaller northerly parcel (1182 Armour Rd.). The southernly portion of the subject lands known as 1176 Armour Road are currently and have been vacant lands.

Core Issue

15The core issues in contention at this Hearing of the merits have been considered by the Tribunal and distilled primarily to the change of use from commercial to residential, the density and scale of development on the subject lands, and general safety and environmental concerns.

APPLICABLE LEGISLATION AND POLICIES

16Land use planning in Ontario is a policy-led system implemented in hierarchical fashion. This system is deliberately crafted to recognize that there cannot be a one-size fits all approach to implementing policy framework, given the diversity of Ontario’s local communities. As such, the broader Provincial policies and objectives are to be implemented by each municipality through their OP, ZBLs, issue-specific guidelines, etc.

17In adjudicating these appeals, the Tribunal must have regard to matters of provincial interest enumerated in s. 2 of the Planning Act (the “Act”). The Tribunal must be satisfied that the Proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”), pursuant to s. 3(5) of the Act. Further, the Tribunal must also find that the Proposal conforms with policies of the provincial plan: A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”). Lastly the Tribunal must be satisfied with the proposal’s conformity with the City OP, and that it represents good land-use planning in the public interest.

EXPERT WITNESSES

18The Appellant had retained and called six witnesses to provide expert opinion evidence and two additional witnesses employed with the City, were called under summons. Each of them provided an Acknowledgment of Expert’s Duty Form and their Curriculum Vitae (“CV”). The Tribunal was asked that they be recognized and qualified as experts in their fields as follows:

i. Kevin Duguay – Land-Use Planning;

ii. Caroline Kimble – Land-Use Planning – Present under Summons;

iii. Neil Campbell – Architecture and Built Form;

iv. Aaron Hill – Civil Engineering and Site Servicing;

v. Ed Gazendam – Fluvial Geomorphology;

vi. Andria Coppins – Ecology;

vii. Seo-Woon Im – Transportation Planning; and

viii. Kevin Jones – City Manager of Transportation - present under Summons

19Ms. O’Heron called one witness to provide expert opinion evidence and he also provided an Acknowledgment of Expert’s Duty Form and their CV. The Tribunal was asked that he be recognized and qualified as expert in his field as follows:

i. Bob Clark – Land-Use Panning.

20Hearing no objections from the Parties and upon review of their CV and Expert’s Duty Form, the Tribunal duly affirmed/swore and qualified the witnesses in their respected field.

21Ms. O’Heron called additional witnesses to provide non-opinion evidence and others under summons to provide additional clarity and testimony. Ms. O’Heron’s additional witnesses were as follows:

i. Matt Wilkinson – ORCA – Not a Qualified Witness; present under Summons;

ii. Robert Dunford – City of Peterborough- Senior Project Manager, Infrastructure and Planning Services – Not a Qualified Witness; present under Summons;

iii. Janet Dawson – Peterborough Public Health - Not a Qualified Witness; present under Summons;

iv. Greg O’Heron – Non-Expert Witness;

v. Terry Freeburn - Non-Expert Witness;

vi. Penny O’Neil - Non-Expert Witness;

vii. Ivan Arseneault - Non-Expert Witness;

viii. Paul Heffernan - Non-Expert Witness;

ix. Mary Reynolds - Non-Expert Witness.

EXPERT WITNESSES OF THE APPELLANT

Architecture and Built Form

22Mr. Campbell was the sole witness to provide expert opinion evidence on Architecture and Built form. He was formally retained by the Appellant in 2017 and has been active on the proposal from its inception, through modifications and now as presently proposed.

23Speaking to Issue 6, Mr. Campbell opined the high-density proposal represents an orderly and appropriate land-use for the subject lands. He opined the current proposal is a simplistic built form that includes a residential multi-unit building that has regard for the ecological and environmental features of the adjacent Thompson creek. Careful consideration was given to the material selection for the built form that includes brick and masonry with large fenestration for light, which in Mr. Campbell’s opinion is in keeping with the residential character of the area.

24The concerns raised by residents citing the setback of the building being to far from the street was given careful consideration. It was with significant input provided by City staff that the location of the building was selected. Both he and City planning staff had agreed that the setback and location of the building was appropriate and blends in with the natural features of the creek, as opposed to being a prominent massing closer to the Armour Road boundary. Further, Mr. Campbell opined this is more respectful to the neighbouring properties and provides a greater buffer and separation distance between structures.

25Mr. Campbell opined that the proposal would serve to address a void in the City’s residential inventory referred to as “The Missing Middle”. Although considered a high-density proposal, the density proposed is moderate in his opinion, and the proposed residential multi-unit building is more inline with the fabric and character of the existing area, than what currently is allowed. Mr. Campbell turned the Tribunal to the Appellant’s shadow studies provided for the proposal (Exhibit 1). He opined both he and City staff concurred with their findings, that impacts were minimal and acceptable with the proposed building.

26In conclusion Mr. Campbell testified the proposal is in keeping with the character of the area. Provincial and City direction envisions intensification on the subject lands and Mr. Campbell opined the proposal is compatible with the area, and appropriately addresses “The Missing Middle” needed in the City. Further, he opined the appropriate setbacks, separation distance and landscape buffing to ensure no negative impacts are felt to adjacent lands have been incorporated and proposed. Mr. Campbell concluded by noting that additional refinement, including landscape and other aspects will still be appropriately reviewed at the Site Plan Approval stage, providing further safeguards and analysis by City staff, subsequent to the land-use approvals currently sought.

Civil Engineering and Site Servicing

27Mr. Hill was called to speak to Issues 9 and 10, citing concerns raised by the opposing Party around water protection, and sewage capacity, and specifically, the proposal’s proximity to natural features of the Creek and Otonabee River and its impact.

28Mr. Hill directed the Tribunal to Technical Reports in Tabs 43-45 of Exhibit 1, he and his firm had worked on and provided to the Appellant.

29Mr. Hill opined the proposal conforms with the OP with respect to the objective of protecting water quality and quantity in Thompson Creek and the Otonabee River. The Technical Reports conclude that the Appellant’s proposed storage chamber system (on the subject lands) will outlet (storm water) at a controlled rate, which will limit post-development release rates to below pre-development levels and with consideration (as required) of 100-year storm events.

30Mr. Hill advised the Tribunal the proposal conforms to the City’s Engineering Design Standards as set out in the OP, and explained how the storage chambers, combined with the 80% total suspended solids and removal from the oil-grit-separator exceeds both the Ministry of Environment, as well as the City’s Design Standards for enhanced level water quality protection.

31Mr. Hill further identified a small portion of the north corner of the property that is within the Intake Protection Zone ("IPZ"), which is governed by the Clean Water Act ("CWA") and administered by ORCA. ORCA technical staff had concluded that stormwater management (quality and quantity control infrastructure), snow storage area and building placement are all outside of the intake protection zone, thereby meeting the objectives of the IPZ.

32Pertaining to Issue 10, Mr. Hill opined the design approach of the stormwater management infrastructure to address water quantity and quality has been adequately evaluated and considered for the proposed development. The building design and location combined with the parking lot water collection method, which decreases storm water flows on the proposed development more so than currently exists, highlights consideration and appropriate regard of the Appellant to this matter.

33The Ms. O’Heron had raised additional concerns with sewage and capacity issues that the proposal will contribute to. However, Mr. Hill dismissed these concerns citing his firm’s review and analysis on the matter, combined with City staff’s concurrence that this proposal can be serviced by existing infrastructure. Mr. Hill did acknowledge that some capacity issues do exist, however they are city-wide issues that have been identified and are subject to ongoing infrastructure improvements. The current proposal and the current City infrastructure are inline and support the loads that will be added by the development.

34In conclusion Mr. Hill opined, the development proposal is appropriate from a site servicing and stormwater management perspective. On-site water and sanitary servicing can be adequately accommodated from existing City service stubs at the property boundary. Stormwater management and erosion and sediment control for the development proposal have been addressed to minimize disturbance and ensure no adverse impacts on water quality or the natural environment, and City sewage capacity is available and not negatively impacted.

Fluvial Geomorphology

35Waters Edge, Mr. Gazendam’s firm was retained in June of 2018 to complete a meander beltwidth and fluvial geomorphological assessment for the subject lands and adjacent creek. In layman’s terms, the study of the creek’s natural wavelike flow and boundaries, in conjunction with creek’s natural water flow and creek’s edge soil erosion. Water's Edge conducted an assessment of Thompson Creek that is summarized in the report found in Tab 41 and reconfirming letter in Tab 42, both in Exhibit 1.

36Mr. Gazendam advised the Tribunal that typical industry procedure in assessing development impacts, studies the watercourse (in this matter Thompson Creek) to determine its beltwidth, which then allows one to conclude the appropriate setback for development.

37Pertaining to Issue 12 raised by the opposing Party, Mr. Gazendam opined that his report concluded:

a. Based on a historic and field assessment of the channel, the channel is unlikely to result in further migration; and,

b. Water's Edge agrees with the assessment by Cambium that the erosion hazard limit + 6 m will provide a sufficient margin of safety for the erosion hazard limit.

Mr. Gazendam highlighted for the Tribunal the findings of his Report were provided both to the City and ORCA, for their review and consideration, with no objections provided.

Ecology

38Ms. Coppins was called to provide her expertise on matters relating to ecology and any potential impact of the proposed development. Her firm had been retained in 2017 by the Appellant and had conducted an Environmental Impact Study (EIS) on the subject lands. The purpose of the EIS is to evaluate the potential impacts of the proposed development on the wetland and any candidate natural heritage features.

An updated EIS addendum was provided to confirm the findings of the original 2017 EIS were still valid.

39Several field studies were completed on the subject lands by Cambium from the period of March 2017- June 5, 2017. Their findings were as follows:

a. Wetlands and Floodplain

i. An unevaluated wetland overlaps the southeast boundary of the subject lands for a distance of approximately 30-40 m. This wetland is part of a contiguous wetland that surrounds Thompson Creek. The floodplain on the property is contained within the wetland boundary.

ii. This wetland and the proposed development on the subject lands are subject to ORCA Policy 2.3.2(6) - Development within 30 m of a non-provincially significant wetland. Development within 30 m may be permitted by ORCA provided that it can be demonstrated through an EIS that there will be no negative impact on the natural features and hydrologic and ecological function of the wetland. Since the wetland is not provincially significant, it is not protected under s. 2.1 of the PPS.

iii. The component of the wetland directly adjacent to the subject lands does not provide valuable habitat for wildlife species and none are expected to be reliant on this component of the wetland. The wetland in this area has been historically altered, most notably during the construction of Cunningham Blvd.

iv. The wetland provides connectivity to a larger wetland area to the north and the wetland downstream of Cunningham Boulevard, as well as connectivity to the Otonabee River. The Otonabee River is approximately 950 m downstream (by flow path of Thompson Creek) from the wetland area adjacent to the subject lands.

v. No development within the wetland is proposed for the subject lands, and a 10 m wetland setback is recommended to provide soil stability and an intact riparian buffer adjacent to the wetland and watercourse. Further recommendations are included in the EIS for buffer enhancements through supplemental plantings within the 10 m buffer.

vi. The setback along the southern wetland edge was proposed to be reduced by 44.5 squared metres (“m²”) and the setback area along the northern wetland edge would be increased by 356.3 m², resulting in an ecological net benefit to the wetland compared to the fixed 10 m setback. This offset strategy received approval from ORCA, who have jurisdiction over matters related to wetlands and watercourses within the watershed.

vii. A physical barrier along the wetland setback is recommended to discourage people and domestic animals from accessing the wetland in this area. The vegetation community present within the setback should be left intact and no soil disturbance should occur in this area.

viii. No negative impact to the wetland feature or its function are anticipated to result from the proposed development.

40The EIS further concluded that there are no rare or sensitive fish habitat identified in the adjacent aspects of Thompson Creek. No impacts are expected by the proposed development and a 15 m setback would be recommended that would include the 10 m setback proposed above, however, in this case the wetlands would be considered within the wetland boundary. This would result in the 10 m setback proposed above being sufficient and the actual setback from the watercourse of greater than 15 m.

41The EIS had identified that there are no plant, bird or amphibian species at risk on or directly adjacent to the subject lands. Two at risk reptiles were identified 1.5 km from the subject lands, and as such the EIS concluded the 10 m wetland setback would be appropriate to mitigate and preserve potential nestling habitants and the recommended exclusion fencing would ensure turtle or turtle hatchlings from access to the proposed developed area.

42Thomson Creek valley is not defined as a significant valleyland, however, it is an important water conveyance and linkage feature. The EIS concluded the proposed development will maintain and not impact these features with the setbacks proposed.

43The EIS had identified flood attenuation measures and provided recommendations for the Appellant to consider. Ms. Coppins opined the technical reports provided in Exhibit 1, Tabs 43-45 address the storm water recommendations of the EIS.

44Ms. Coppins opined that there are no impacts related to wastewater and water service on the subject lands or surrounding area.

45In conclusion Ms. Coppins provided for the Tribunal her opinion that from an ecological perspective the proposed development has regard for relevant sections of the Act, is in conformity with applicable policies of the Growth Plan and City OP and is consistent with relevant policies of the PPS, provided that the recommendations outlined in the EIS and EIS Addendum are implemented.

Transportation Planning

46The proposed development consists of 76 apartment units and 106 parking spaces at the parking spaces supply rate of 1.39 spaces per apartment unit. The current requirement of the ZBL is 1.75 spaces per apartment unit.

47Mr. Im and his firm, Tranplan, had conducted a parking justification study (the “parking study”) of the proposed development dated May 2019. The parking study concluded that the proposed supply of 106 parking spaces can accommodate the anticipated normal peak demand for the proposed development and their findings could support a reduction rate of 1.2 spaces per apartment unit, below the 1.39 rate sought, thus Mr. Im opined proposed rate was reasonable and appropriate.

48Mr. Im testified that the City’s Transportation staff had accepted his findings and brought the Tribunal to his witness statement and Exhibit “C”, an appended memorandum from the City's Manager of Transportation (Mr. Kevin Jones) dated April 8, 2020. The memorandum from Mr. Jones to Ms. Caroline Kimble, City's Land Use Planner, read:

iii. Based on the above analysis and given the high level of transit service provided along Annour Road, we concur with the conclusions of the assessment and can support the reduced parking requirements proposed in the application.

49Mr. Im advised the Tribunal that his client had not conducted a Traffic Impact Study (“TIS”) as the City had not required that analysis. He confirmed with the City that they were satisfied that no negative impacts were created with the Proposal and the local roadway network was sufficient and capable of supporting demands. Mr. Im adopted and concurred with this position.

Mr. Im concluded with his opinion that the Proposal with its proposed 1.39 spaces per apartment unit is appropriate and supported with the findings of the parking study. The Proposal will provide adequate parking on-site for residents and visitors and with the parking study’s findings that peak demands will be met and no overflow parking analysis is required.

Kevin Jones – City Manager of Transportation

50Mr. Jones adopted the City staff recommendations provided in Tab 10 (memorandum dated April 8, 2020) and Tab 13 (Staff Recommendation to approve, dated July 6, 2020) of Exhibit 1, as they pertain to transportation and parking. He further testified that his opinions on the matter have not changed and opined the evidence provided on the matter supports the proposed development.

51Mr. Jones highlighted for the Tribunal that City staff had concluded that the Appellant did not require a formal TIS for the subject lands, as the traffic implications for development of the lands were assessed as part of the original zoning for the entire subdivision development. The original approved zoning was based on a commercial land use, which has higher traffic generation than the proposed residential apartment land use being proposed.

52Further, City staff was supportive, and Mr. Jones concurred with the proposed Parking Management Strategy provided by the Appellant. Some proposed measures included renting parking spaces separately from apartment units (to give a direct financial benefit for tenants without cars or with only one car), limiting the number of spaces that can be rented by tenants and providing indoor secure bike storage to promote active transportation at the subject lands’ doorstep (including the Rotary Greenway Trail, across the road). Strategies provided would reduce vehicle ownership amongst residents and therefore reduce parking demand and promote alternative modes of transportation.

53Mr. Jones opined that the opposing Party and resident concerns relating to the future road widening of Armour Road have been reviewed and considered by both City staff and the Appellant. Opining that the removal of the Armour Road entry to the proposal was a direct result of this analysis and ongoing studies being conducted. If future studies do support the entry from Armour Road in the future, Mr. Jones opined that can be provided at that time with no negative impacts to the City road network or nearby residents.

54In conclusion, Mr. Jones provided the opinion that the proposal, with the 106 parking spaces proposed, is supportable at this time and is not premature. Mr. Jones accepted the findings of the parking study, and as Mr. Im had indicated, a TIS was not required by City Staff to assess the Traffic Impacts of the proposed development. Through its analysis, City Staff had also concluded that the expansion of Armour Road will not be negatively impacted, nor impact the proposal, if and when it occurs in the future. Further, the subject lands have a high level of transit service and active transportation options. Therefore, from a transportation perspective the proposal in Mr. Jones’ opinion is supportable and has no outstanding transportation issues.

PLANNING OPINIONS

55The Tribunal was provided written and heard viva voce testimony from three qualified Land-Use Planners at the proceedings. Mr. Duguay and Ms. Kimble (City Planner, who had drafted the July 6, 2020, planning report to City Council, with recommendations to approve the proposal) both supported the proposal before the Tribunal. In their expert opinions the appeals should be allowed and the Draft OPA and ZBLA provided in Exhibit 1 be approved.

56In contrast Mr. Clark provided evidence in opposition to the proposal and opined the appeals should be dismissed.

The Planning Act

57Section 2 of the Act identifies matters of provincial interest and provides a lengthy list of criteria to which a municipality or Tribunal shall “have regard to” in carrying out its responsibility and evaluating applications for development.

58Mr. Clark identified s. 2 (a) of the Act, the protection of ecological systems, including natural areas, features and functions, as a concern. However, he also provided to the Tribunal that he accepts that a SWM study and a Scoped EIS that were submitted and reviewed by ORCA.

59Mr. Clark also identified s. 2 (f), specifically transportation and the future realignment of Armour Road as an area of concern with him opining it is premature to assess the Armour Road frontage of the proposal.

60Identifying subsections (h), (k), (p) and (q) of s. 2 of the Act, Mr. Clark expressed concern with the removal of commercial opportunities and highlighted current commercial designation of the subject lands. Opining that removing these commercial lands does not constitute orderly development of the lands, diminishes employment opportunities in an area already designated, and that the proposed residential development before the Tribunal is not the appropriate location for such growth, in particular at the density sought.

61Lastly, Mr. Clark testified that sufficient regard had not been provided to the promotion of built form as set out in s. 2 (r), the promotion of built form that:

i. is well designed,

ii. encourages a sense of place, and

iii. provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

He stated the location of the structure well setback from the streets means that the opportunity to create an interesting street-oriented structure would be missed and the proposed street view will be focused on the extensive parking lot. Further, Mr. Clark opined the heavily automobile oriented residential proposal void of commercial uses will force greater automobile use in the area, not having regard to s. 2 (s) of the Act, the mitigation of greenhouse gas emissions and adaptation to a changing climate.

62Both Mr. Duguay and Ms. Kimble gave their opinions that the proposal did indeed have regard to s. 2 of the Act and all relevant subsections. Both witnesses referred to the expert evidence both heard and available, noting ecology and servicing issues were responded to by experts both from the City, ORCA and others at this hearing.

63Mr. Duguay also noted that Commercial uses (currently designated) will still be provided to lands to the north of the subject lands. Mr. Duguay questioned the commercial demand on subject lands. The Appellant had attempted for years to attract commercial tenants with little or no success. This in his opinion indicates the demand for Commercial uses are low and maintaining the subject lands’ current designation was not warranted nor needed.

64Lastly speaking to subsection (r), the Mr. Duguay referred to City Staff and Mr. Campbell, who gave an expert opinion in Architecture and Built Form that the proposal was in keeping with the character of the area and policies pertaining to built form and urban design for the subject lands.

The Growth Plan

65Mr. Clark brought the Tribunal s. 1.2.1, Growth Plan, Guiding Principles that seek to:

Support the achievement of complete communities that are designed to support healthy and active living and meet people’s needs for daily living throughout an entire lifetime.

s. 2.2.1, which set out policies for Managing Growth including:

4. Applying the policies of this Plan will support the achievement of complete communities that:

a) feature a diverse mix of land uses, including residential and employment uses, and convenient access to local stores, services and public service facilities.

66Mr. Clark opined that the proposal fails to conform with the policies above and the establishment of a complete community is not achieved by eliminating suitable Commercial lands from the area.

67Mr. Duguay, highlighted that Commercial Land Designation will remain to the lands north of the subject lands. He further opined in contrast to Mr. Clark that the proposal will contribute to a complete community. Policy 1.2.1 sets out to prioritize intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability, while also supporting a range and mix of housing options. Both Mr. Duguay and Ms. Kimble shared the opinion that this is achieved with the proposal.

68Mr. Duguay disagreed with Mr. Clark’s assertion that the commercial designation should be maintained or needed on the subject lands. He highlighted that s. 2.2.1 identifies a complete community that is comprised of residential and employment land uses. Mr. Duguay opined that this mix of land use is not required specifically on the subject lands or on every site within the City. In his opinion, the Growth Plan is a broad set of policies to be implemented by the municipality city wide appropriately.

69Mr. Duguay brought the Tribunal to s. 2.2.1.1 and the proposal contributing to the population numbers and targets the Growth Plan bestows on the City. Further, s. 2.2.1.2 (a), identifies that the vast majority of growth will be directed to settlement area that:

i. have a delineated built boundary;

ii. have existing or planned municipal water and wastewater systems; and

iii. can support the achievement of complete communities;

Both Mr. Duguay and Ms. Kimble agree that the proposal conforms with this is policy.

Ms. Kimble expanded on policy 2.2.1.2 to speak to subsection (c), that includes:

iii) locations with existing or planned transit, with a priority on higher order transit where it exists or is planned; and

iv)areas with existing or planned public service facilities;

Where she opined that the proposed infill development is appropriately located in a delineated built-up area with existing transit, infrastructure and public service facilities in proximity to the subject lands.

The Provincial Policy Statement

70Mr. Clark similarly to his evidence on the Act and Growth Plan identified concerns with the proposal and opined inconsistency with the PPS.

71Mr. Clark brought the Tribunal to s. 1.1.1, where the PPS addresses development of healthy, liveable, and safe communities. In particular the policy directs:

a) promoting efficient development and land use patterns;

Mr. Clark opined the removal of local commercial uses is not reflective of an efficient pattern of land use. Further, Mr. Clark raised concerns with:

s. 1.1.1 (c) avoiding development and land use patterns which may cause environmental or public health and safety concerns;

Mr. Clark opined the location of the structure in close proximity to the environmental area restricts access to this area and establishes an automobile-oriented land use close to the public transit access and the walkway on the west side of Armour Road.

72Mr. Clark opined that the proposal does not conform s. 1.3.1 (d), which encourages compact, mixed-use development that incorporates compatible employment uses to support liveable and resilient communities, with consideration of housing policy 1.4. It was his belief that removing commercial uses from the subject lands fails to conform with this policy.

73Concerns were also identified by Mr. Clark pertaining to the water intake for the City being located downstream from the proposal’s stormwater outlet, raising concerns with s. 1.6.6.7 (stormwater management policies) being met. Also, Mr. Clark again raised concerns with the removal of the commercial lands and opined that s. 1.6.7.4 would be inconsistent with the proposal, which would have been able to decrease the number of vehicular trips from the surrounding residents that would have been able to walk to the subject site and purchase goods.

74Mr. Clark raised concerns with the proposal’s proposed set back of 10 m from Natural Heritage features and his opinion it is inconsistent with s. 2.1.8 and further raising concerns with the drinking water and with the proposal’s stormwater discharge into Thompson creek. This, Mr. Clark highlights inconsistency with s. 2.2.1 of the PPS and planning authorities protecting the quality of water for the area.

75Ms. Kimble opined that she was satisfied that the proposal was consistent with the PPS and her analysis concluded that the proposal provided a range and mix of residential units in proximity to transit and satisfied other subsections, thus being consistent with s. 1.1.1. The subject lands and its proximity to public service facilities, transit and having available appropriate infrastructure allowed Ms. Kimble to opine consistency with s. 1.4.3. Lastly speaking to s. 2.1.8 and s. 2.2.1, Ms. Kimble was comfortable that the concerns have been addressed with the Appellant’s EIS provided to City staff by Cambrian Consultants, and both City Staff and ORCA staff having reviewed and being satisfied that no negative implications will result with the proposal.

76Mr. Duguay provided written and oral evidence inline with that of Ms. Kimble and provided his opinion to the Tribunal that the proposal is consistent with the PPS.

77Counsel for the Appellant in cross examination questioned if Mr. Clark had conducted any ecological, transportation, or market analysis (commercial vs. residential) that provided any empirical evidence or substantiated the concerns he raised. Mr. Clark confirmed he had not, in fact he indicated that he accepts the findings of the studies provided, he is just raising concerns. Counsel also confirmed that Mr. Clark was qualified before this Tribunal as a land-use planning expert, not an ecologist, transportation expert, Economist or Real Estate Market expert or any other discipline other that land-use planning. Mr. Clark confirmed he was solely qualified as a land-use planner, however, noted his opinions were provided as such, and he was not claiming expertise in any other field.

The Official Plan

78Ms. Kimble acknowledged the Neighbourhood Centre land use that is currently assigned to the subject lands is intended to support a predominantly commercial development with opportunity for residential on the second or higher storeys. This is why the Appellant requires the OPA and ZBLA.

79Ms. Kimble also opined the policies related to the City’s OP Intensification Corridors encourage appropriate intensification within the Built Boundary of the City, in locations where capacity exists or can readily be improved. This also includes areas with infrastructure, and where additional development can be compatibly integrated with existing built form, land use patterns, natural heritage features and natural hazards. Further, she opined that OP housing policies "encourage residential intensification to increase the supply of housing through better use of existing resources, buildings and under-utilized sites" as noted in s. 4.2.1.2 of the OP.

80Ms. Kimble provided the Tribunal insight on City staff’s analysis of development applications, and they having to address the provisions of s. 4.2.5.6 and s. 4.2.5.7 of the OP. This includes the requirement for a concept site plan and building perspective, with sufficient details related to the massing and conceptual design and relationship to the streets and surrounding neighbourhood. The adequacy of municipal servicing, implications of traffic generation, provision of amenities, proximity to schools, parks and recreation areas, adequate buffering, parking and landscaping, and proximity or presence of significant natural / environmental features, which all have been considered in the evaluation of the proposed amendments.

81Ms. Kimble opined that the proposal conforms with the City OP and has demonstrated this through the Appellant’s submissions to City staff and now to the Tribunal.

82Mr. Duguay opined similarly to Ms. Kimble that the proposal has demonstrated conformity to the OP.

83Mr. Duguay again reiterated that in his opinion the subject lands are supported by full municipal infrastructure and related municipal services appropriate for the proposed multiple-unit residential development. Further, is complemented by public transit directly at its property line and active transportation pathways adjacent to the subject lands.

84Mr. Duguay brought the Tribunal to s. 2.1 of the OP, Goals and Objectives. The Tribunal was walked through subsections that spoke to development being orderly and sequential while being economic and efficient. With an emphasis on preservation, protection and enhancement of both natural and urbanized landscape. Mr. Duguay opined the proposal has met these goals and objectives. He spoke specifically to the EIS and subsequent addendum in support of the previous minor variances, where both ORCA and City Staff have accepted its findings and its validity for this proposal.

85Mr. Duguay concurred with Ms. Kimble that the proposal conforms with OP policy 2.4.2 (b) intensification being focused and situated in intensification corridors, and (c) encouraging new development in existing built-up areas to have compact form and the appropriate mix of uses and densities. He further identified s. 2.4.4.3, Intensification Corridors will be developed and address:

a) an appropriate range and mixture of land uses;

b) achievement of transit supportive densities;

c) accessible and affordable housing and mixed-use developments;

d) social and municipal infrastructure, and treatment of public lands;

e) land use transition and urban design policies to protect the stability or amenity of neighbouring areas of lower residential density;

f) land use and urban design policy to protect employment areas from land use conflict and adverse effects from encroachment by sensitive uses;

g) land use policies to protect areas of cultural heritage or areas of natural heritage sensitivity;

h) land use policies that direct development away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety or of property damage.

Mr. Duguay opined that through his years of work on this proposal and the numerous studies and technical reports provided, he is confident the above subsections have been addressed.

86Mr. Duguay discussed the Residential policies of the OP in s. 4.2 and again opined conformity with all relevant policies within. He did, however, highlight s. 4.2.1.2 (as did Ms. Kimble) and opine that this policy is particularly relevant as the proposal addresses and provides the “missing middle”. These are residential needs that are neither low-rise residential, nor high-rise development that the City and many suburban city’s struggle to supply. The subsections below, in Mr. Duguay highlight conformity of the proposal with this policy:

i. Provide for a supply of residential land that is sufficient to accommodate the anticipated demand for a range of housing types.

ii. Support the provision of a choice of housing types according to location, size, cost, tenure, design, and accessibility so that a broad range of housing requirements are satisfied.

iii. Direct the expansion of residential development into appropriate areas according to availability of municipal services, soil conditions, topographic features and environmental constraints; and in a form which can be integrated with established land use patterns.

vi Encourage infill residential development in residential areas where the impacts of development on existing uses can be minimized and where development can efficiently utilize existing municipal services and facilities.

v. Encourage residential intensification to increase the supply of housing through better use of existing resources, buildings and under-utilized sites.

vi. Support the provision of services and amenities that enhance the quality of the residential environment.

87Section 4.2.2.1.3, Infill housing policy was reviewed by Mr. Duguay and discussed by Ms. Kimble, as were s. 4.2.2.3, high density residential and s. 4.2.2.3.1 permitted use policies and several subsections of the OP housing policies, both opined conformity with these policies.

88Mr. Duguay in his review of the City OP opined that the proposal conforms with all relevant policies of the OP, and both Ms. Kimble and he concurred, that the proposal has demonstrated through technical reports and studies that no negative impacts will result with the proposed development.

Mr. Clark, similar to his analysis of the previous planning documents reviewed, disagreed with the opinions of both Mr. Duguay and Ms. Kimble.

89While acknowledging the proposal checks off several of the boxes supporting approval, in his opinion, not all have been checked off, and particularly in his analysis of the City OP, he could not support the removal of the already designated commercial lands.

90Mr. Clark referenced s. 2.1.2, that the:

Adequate area of land use of land development opportunity shall be made available throughout the city to provide for the needs of all citizens of the City of Peterborough. The distribution of land use development shall provide for an equitable allocation of employment opportunity, recreational opportunity and retail and service opportunity within close proximity to residential areas.

Further, Mr. Clark referred to s. 2.4.3.3 and included within that policy, a description of a ‘complete community’ including employment opportunities. In his opinion the above policies support the retention of the Neighbourhood Commercial designation on the subject lands.

91Mr. Clark opined that s. 3.3.6 outlines concern with incompatible development in areas subject to physical or environmental constraints in areas that would interfere with the primary purpose or function of the natural areas such as erosion control, a recharge area for ground water or fish and wildlife habitat. Further, Mr. Clark highlighted that s. 3.5.2.1 contains specific reference to catchment areas which drain into the Otonabee River upstream of the City. In his opinion, the subject lands and the proposed 10 m setback and discharge of storm water into Thompson creek, increase the above concerns.

92Pertaining to OP housing policies, Mr. Clark identified s. 4.2.2.3.2 and opined that the density proposed being greater than the range of 75 to 110 dwelling units per hectare does not conform with even the greater range provided by the OP. As well, Mr. Clark cited concerns with conformity of the proposal with s. 4.2.2.3.2.3 that states:

High density developments shall be sited so as to minimize their effect on neighbouring lower density residential land uses particularly with regard to traffic generation, reduction of sunlight and the views presently enjoyed by neighbouring residents. The visual impact of each project will be carefully considered.

Mr. Clark opined the proposal has failed to conform with this policy.

93Further Mr. Clark identified concerns with the proposal conforming to s.10.4 the Auburn North Secondary Plan. In his opinion with the commercial lands being removed the proposal fails to provide the community employment opportunities integral to supporting the residential environment as set out s. 10.4.2.1. Additionally, Mr. Clark identified concerns with the protection of the Thompson Creek Corridor (s. 10.4.2.2) and safety concerns with storm water inflow affecting water quality (s. 10.4.2.3) and finally concerns with road safety and his opinion the approval of the proposal being premature without the EA of the Armour Road realignment not being complete (s. 10.4.2.4).

94In conclusion and for the reasons cited above Mr. Clark opined the proposal fails to conform to the City OP.

City Zoning By-law No. 1997-123

95The ZBL of the City is proposed to be amended to zone the eastern portion of the lands adjacent to the Thompson Creek lands as Open Space District 1 (OS.1). This is an area of approximately 1,830 m² or 21.5% of the lot. Mr. Clark opined that factually the proposed 110 m² of minimum lot area per dwelling is inaccurate. In his opinion this assumes the entire lot can be used for the density calculation. It is his position that if only the R.5 area is used, the density is 113 units/ha (he maintains higher than the OP range) and the requirements would be 88 m² unit, much lower than the 110 m² /unit proposed.

96Both Mr. Duguay and Ms. Kimble acknowledged Mr. Cark’s methodology, and City staff also concurred and utilized the current numbers before the Tribunal and as have been provided for public notice. Mr. Duguay and Ms. Kimble highlighted; one must consider the area that currently exists. The fact that the proposal is considering designating lands to OS.1 (more so than what currently exists) should be perceived as a net benefit to the community. This has been negotiated and recommended by the environmental consultants and City staff and has been accepted by the Appellant. This, however, should not be penalized nor used as a calculation method to highlight a greater disparity in numbers than what currently exists today, compared to what may exist if the proposal is approved.

Concluding Planning Witnesses’ Opinions

97Mr. Clark concluded for the Tribunal that it is his opinion that the Neighbourhood Commercial use is the already designated use and the better use for the subject lands. He opined it is an important component of the Secondary Plan Area, and the current designation allows for both residential and commercial uses, that will better provide services to the existing and future residents in the area.

98He further opined that the proposed design does not make the best use of the site and does not blend with the character of the area. The corner lot offers an important opportunity for street-oriented structures which would blend and unite the community. Further he has raised many concerns related to the potential impact of a high-density residential use in very close proximity to the Thompson Creek valley lands and the environmental impacts combined with potential road safety concerns still to be addressed.

99For the reasons above provided and the totality of his evidence provided both orally and written, Mr. Clark opined that the proposal does not meet the intent of the OP and is not in the public interest. It is his recommendation that the appeals be dismissed, and the proposal is not approved.

100It was Ms. Kimble’s expert opinion to this Tribunal, as it was in her report provided to Council, to recommend approval of the proposal. She and City staff share the opinion that the proposal has addressed all necessary concerns through this process and provided the necessary technical evidence and studies to demonstrate no negative impacts will be generated by the proposal, and that the proposal is compatible and an appropriate residential infill development. Ms. Kimble further provided that any remaining concerns can be appropriately dealt with at the Site Plan Approval stage that the proposal is required to go through.

101Mr. Duguay concluded for the Tribunal that in his professional planning opinion that the OPA and ZBLA sought serve to permit a multi-storied, multiple-unit residential development at this location and is representative of ‘Good Planning’. It is his opinion that from a land-use planning perspective the proposal has regard to s. 2 of the Act, is consistent with the PPS and conforms to both the Growth Plan and the City OP. He further opined that the purpose and intent of both the OP and ZBL have been maintained and that the OPA and ZBLA allow for the proposal, that is better inline and fits with the existing character of the area than what currently is allowed on the subject lands.

102Mr. Duguay respectfully disagreed with Mr. Clark’s method of simply identifying concerns or disparities without, in his opinion, the policies assessed and analyzed in their totality. Further, Mr. Duguay referred to areas beyond his expertise and the evidence provided from City staff pertaining to transportation and numerous other matters and the additional experts heard at this hearing related to architecture, ecology, parking and more, that not only provided opinion evidence but provided technical reports and studies helping formulate and substantiate his opinion on the matter.

103In conclusion Mr. Duguay recommended that the Tribunal approve the Draft OPA and ZBLA provided in Exhibit 1.

Opposing Party Witnesses Under Summons

104Ms. O’Heron called Matt Wilkinson from ORCA, a land-use planner assigned to this file to speak to the matter.

105Mr. Wilkinson testified several ORCA staff members from various disciplines had reviewed the proposal and ORCA had been provided three technical studies for their analysis and had additional correspondence with the consultants and authors of the studies.

106ORCA technical staff had provided some comments to the City and the Appellant’s consultants that had expressed some concerns and sought additional clarity on various matters.

107Mr. Wilkinson testified at this time ORCA’s concerns have been addressed and technical staff have accepted the findings provided in the EIS and SWM studies and are comfortable with any other matters outstanding being addressed at the Site Plan Approval stage.

108Robert Dunford, Senior Project Manager, Infrastructure and Planning Service for the City was also called by the opposing Party. His testimony dealt primarily with the City initiated EA, Armour Road realignment project and aspects of storm water and sanitary servicing that will be impacted by the realignment.

109Mr. Dunford testified the EA is expected to be complete by year end of 2022. It is a lengthy ongoing process that reviews various options, routes and implications of the Armour Road realignment.

110Mr. Dunford explained that the proposal is assessed and studied separately from the EA, the EA is not conducted from site specific lens but from a City wide perspective. The site-specific assessment is the responsibility of the Applicant/Appellant and his consultants. However, implications of the overall Road realignment and servicing are brought into the analysis. He testified that this process has been completed pertaining to the proposal and City staff are satisfied that the impacts of the proposal will not negatively affect the Armour Road realignment and the reciprocal was also considered and findings were also deemed satisfactory.

111In cross examination Mr. Dunford testified that he had no reason to disagree and concurred with Mr. Jones that the proposal has been assessed and is not premature to proceed at this time. Further, he and his staff had reviewed and accepted the FSR report, and he accepts the opinions and methodology of Mr. Hill pertaining to site servicing and storm water management for the proposal. Lastly, he had reviewed the comments of ORCA and is satisfied with their position and agree that several items will appropriately be dealt with at the Site Plan Approval stage.

112Janet Dawson from Peterborough Public Health was also present under Summons at these proceedings.

113She testified that she is not a planner or traffic engineer, just raising concerns that the proposal may contribute to. She is supportive of the trend to reduce vehicular dependency from a health perspective. The location is well served by the adjacent Rotary Trail and active transportation options are supported. Comments further included consideration of public gardens onsite to aid and augment both physical and mental health of potential occupants or community initiatives.

114Public health had identified concerns with the Rotary Trail crossing at Armour Road and its interaction with the originally proposed entry to the subject lands.

115Ms. Dawson opined the Armour Road Rotary crossing is a City wide issue, as all are welcome to use the trail, but expressed concerns with the entry point proposed compounding and potentially increasing safety issues. With the Armour Road entry point removed, the level of concern has diminished, however, has not been eliminated, and thus Public Health is satisfied with the engagement process for this specific proposal continuing at the Site Plan stage.

Participants and Non-Expert Witnesses

116Six participants were granted status for these proceedings. The Tribunal reviewed the participant statements provided and considered the information within its overall analysis of the matter.

117Six non-expert witnesses were heard at these proceedings. Duplication did occur for a few Participants and non-expert witnesses, however, with all being local residents and impacted by the proposal the Tribunal recognized value in both their written and oral perspectives of the matter.

118Greg O’Heron was called and spoke to his concerns with safety, particularly with Armour Road and a ‘pinch point’ just north of his property and closer to the subject lands. He expressed concerns with wildlife displacement and environmental impacts, and provided the Tribunal with audio and visual, that in his view highlighted the abundance of wildlife in the area. Lastly, Mr. O’Heron was concerned with the loss of commercial lands and the area not having options for near by local services or goods. He indicated that commercial signage has been on the subject lands for close to a decade with residents hoping for and expecting commercial uses on the subject lands.

119Terry Freeburn a local real estate broker, builder developer expressed concerns with the removal of the commercial land use designation. His belief is that the area and the distribution or ratio of residential versus commercial lands is already too low, and the subject lands being eliminated will reduce the availability or inventory even further. Also, he expressed concerns and shared the opinion that his lands across the street have limitations and servicing issues, thus he questioned how such a dense proposal would not have the same, if not greater servicing limitations or have impacts on the neighbouring properties.

120Penny O’Neil is a ten-year resident and the abutting neighbour to the north of the subject lands. Her ownership includes rights over a section of Thompson Creek and she is concerned with the development’s impact to not only on the subject lands but on the Creek and wildlife in the surrounding area. She shared video footage with the Tribunal of wildlife in the immediate area and the undisturbed nature of the abutting Creek and lands. She further expressed concerns of the light pollution, noise and overall height and density of the proposal as well as site separation and overlook aspects that she will be subjected to, if the proposal is approved. Lastly, Ms. O’Neil shared safety concerns as brought forward by Public Health of the Rotary Trail crossing and it being right at her doorstep and how the proposal as well as the Armour Road realignment will impact her home and the community as a whole.

121Ivan Arseneault was heard by the Tribunal. He is a 20 plus year resident in the area and has been employed in the nuclear industry for some time. Having a pragmatic approach, his concerns focused on the area infrastructure (water and sewage) and the ability to sustain and safely implement the intensity of the proposed development on the subject lands. He shared that traffic flow in the area is already quite troublesome, and the area is essentially an island with bridges in and out of the area. It was his belief that this will be just compounded with the Armour Road realignment and the intensity of the proposal. He opined that with the EA not complete, the proposal is premature and in his view the intensity is too great for the area.

122Paul Heffernan a resident just south of the proposal and a retired Engineer Technologist (acknowledged under cross with no expertise on the matter) shared his views that the proposal is too dense and out of character for the area. He also had views similar to Mr. Clark that the calculations of density are being undercalculated with the split zoning proposed. He believed the parking justification and proxy sites selected were not representative of the subject lands. He conducted and shared with the Tribunal his own parking counts on near by sites, which he perceived and opined were more inline and in keeping to characteristics of the subject lands. He further had concerns and believed that that TIS should have been conducted and felt the conditions seen by residents on a daily basis combined with the proposed Armour Road realignment warranted such studies. Mr. Heffernan did acknowledge under cross, he is not a trained or accredited land-use planner, parking or traffic expert, and his views shared were his own non expert opinions and beliefs.

123Mary Reynolds was the Ms. O’Heron’s final non expert witness. Being a 20 plus year resident, she echoed several of the same sentiments of her neighbours. Her concerns focused on the environmental impacts and potential flooding the area is predisposed to. She shared her views of the flooding the area experienced in 2004 and the other less impactful events over the years. She was not supportive of the scale and intensity of the project and would rather see a mixed-use proposal providing the current residents the ability to walk and pick up goods or obtain personal services. She shared her opinions and highlighted for the Tribunal some nearby recent developments in the area, which she believed were more in keeping to the character of the community.

124Having heard the evidence provided from the witnesses during testimony and read the concerns of the Participants, the Tribunal is satisfied the concerns of the Participants were addressed during the hearing.

DISPOSITION and Findings

125The Tribunal cannot ignore that the testimony and evidence received at this Hearing pertaining to technical aspects of the proposal was unilaterally provided by the Appellant and their expert witnesses brought forward and qualified by this Tribunal.

126Therefore, the Tribunal is satisfied and accepts the testimony of the following witnesses as uncontroverted expert evidence:

i. Neil Campbell – Architecture and Built Form;

ii. Aaron Hill – Civil Engineering and Site Servicing;

iii. Ed Gazendam – Fluvial Geomorphology;

iv. Andria Coppins – Ecology;

v. Seo-Woon Im – Transportation Planning; and

vi. Kevin Jones – City Manager of Transportation.

127Thus, the contested evidence and opposing views provided to the Tribunal were confined to land-use planning merit of the proposal.

128The Tribunal having heard the testimony and with its review of the witness statements, is persuaded by the opinions of Mr. Duguay and Ms. Kimble than those offered by Mr. Clark on matters of land-use planning.

129The Tribunal finds that the evidence of both Mr. Duguay and Ms. Kimble is augmented with the technical support and the compounding of their opinions, with those provided by the witnesses mentioned and their uncontroverted evidence.

130The provincial interests of the Act are broad, higher-level interests that the Tribunal finds have been met and that the proposal has had regard to the provisions of the Act and relevant subsections from the criteria of s. 2 (a-s).

131The evidence of Mr. Clark failed to persuade the Tribunal pertaining to ecological, transportation or built form subsections in s. 2 (a), (f) or (r). Mr. Clark had raised several concerns, however, offered little by way of evidence to substantiate those concerns. The Tribunal found in contrast evidence had been provided via technical reports, studies and opinions to support the proposal, which were reviewed and accepted by experts in those respected fields. Further, Mr. Clark during testimony accepted the findings of the technical studies. The Tribunal is therefore satisfied that regard was appropriately provided to the above subsections of the Act.

132The Tribunal has considered the opinions relating to commercial uses and its retention on the subject lands being more so in line or having greater regard to the Act. Although, recognizing commercial uses and employment opportunities are valuable in all communities, the Tribunal does not accept that this is paramount to the subject lands. The Tribunal accepts the evidence of the Appellant that there are remaining commercial lands that exist north of the subject lands, allowing for the opportunity for commercial uses, if developed in that manner.

133The Tribunal has given weight to the opinions provided, that commercial demand on the subject lands is not sufficient to justify its retention from an economic perspective. This was reinforced and augmented by evidence highlighting that the subject lands have been available and marketed for close to a decade, with no agreement or commercial tenant justifying a commercial development. Lastly, this Tribunal is tasked to adjudicate on the appeals before it. This requires an analysis of what is proposed, not on what may be proposed.

134The evidence provided to the Tribunal pertaining to the PPS, has persuaded the Tribunal to accept and prefer the opinions of Mr. Duguay and Ms. Kimble.

135The Tribunal is satisfied that concerns with safety, cited by Mr. Clark, and referring to s. 1.1.1 (c), have been appropriately dealt with by removing the entry to the subject lands from Armour Road. Further, evidence provided that additional concerns and review will take place at the Site Plan Approval stage is found to be acceptable and appropriate by the Tribunal.

136Concerns were raised by Mr. Clark pertaining to ecological and water safety policies of the PPS, however, these opinions were provided with no empirical justification, technical reports or studies. The Tribunal is satisfied by the uncontroverted evidence provided on these matters and the opinions provided by Mr. Duguay and Ms. Kimble that the proposal is consistent with the PPS.

137Lastly, pertaining to the OP, the Tribunal is persuaded more so by the evidence of both Mr. Duguay and Ms. Kimble than that of Mr. Clark. The Tribunal is satisfied that the subject lands are situated within an intensification corridor and the proposal is an appropriate form of infill development on currently under-utilized lands. The Tribunal is satisfied that the scale, density, massing of the proposal conforms with the provisions of s. 4.2.5.6 and s. 4.2.5.7 and the proposal conforms with other relevant criteria of these policies and the OP as a whole.

138The Tribunal has considered the calculation method and concerns raised by Mr. Clark pertaining the ZBL. The Tribunal does concur with Ms. Kimble and Mr. Duguay that the quantum is less relevant than the net result. With them opining the net result is greater with lands being designated to OS.1, the Tribunal is satisfied that the greater disparity numerically does not negatively impact the general intent and purpose of the ZBL, thus the decreased minimum lot area per dwelling unit proposed is appropriate and acceptable.

139The Tribunal considered the Participant statements provided and heard from several nearby residents about their concerns and rationale for opposing the proposal. Although the Tribunal puts weight on the views of nearby residents, it is obligated to consider the evidence before it. The Tribunal failed to find any evidence that persuaded it to support the views of the opposing Party and those brought forward by any opposing witnesses.

140The Tribunal finds that simply expressing concerns, apprehension and preferences does not dissuade from the evidence justifying the change of use from commercial to residential. It further does not dissuade from the justification of the density, scale and parking reduction proposed on the subject lands. Lastly, it does not dissuade from the opinions of experts that safety and environmental concerns have been addressed. Conversely, the Tribunal was provided a substantial amount of technical data and studies, as well as expert opinion evidence that support the proposal before it.

Decision

141The Tribunal has considered all information that the Parties have provided and is satisfied that the scale and built form proposed by the Appellant on the subject lands are appropriate for the area and compatible with the existing and evolving context of the area.

142The Tribunal is satisfied that all issues provided in the Procedural Order for this hearing have been addressed and the evidence provided supports the approval of the proposal.

143The Tribunal having heard the testimony of the witnesses and having been provided submissions by Counsel and reviewing the evidence provided in its totality finds that the Appellant’s proposal and both the OPA and ZBLA sought, have regard to s. 2 of the Act as required. The Proposal is consistent with the PPS and conforms to the Growth Plan and the City OP and represents good land-use planning in the public interest.

ORDER

144THE TRIBUNAL ORDERS that the Official Plan Amendment appeal is allowed, and the Official Plan for the City of Peterborough is amended as set out in Attachment 1 to this Order.

145THE TRIBUNAL ORDERS that the Zoning By-law Amendment appeal is allowed, and the City of Peterborough is directed to amend By-law No. 97-123 as set out in Attachment 2 to this Order.

“M. Russo”

M. russo

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.