Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
May 09, 2022
CASE NO(S).:
OLT-22-002007
(Formerly PL210098)
PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Transmetro Limited
Subject:
Failure of Town of Oakville to announce a decision respecting Proposed Official Plan Amendment No. OPA1613.63
Municipality:
Town of Oakville
OLT Case No.:
OLT-22-002007
Legacy Case No.:
PL210098
OLT Lead Case No.:
OLT-22-002007
Legacy Lead Case No.:
PL210098
OLT Case Name:
Transmetro Limited v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Transmetro Limited
Subject:
Application to amend Zoning By-law No. 2014-014 - Neglect of Town of Oakville to make a decision
Existing Zoning:
Low Density Residential (RL5-0)
Proposed Zoning:
Medium Density Residential (RM4)
Purpose:
To permit a three-storey, 14-unit apartment building
Property Address/Description:
358 Reynolds Street
Municipality:
Town of Oakville
Municipality File No.:
Z.1613.63
OLT Case No.:
OLT-22-002008
Legacy Case No.:
PL210099
OLT Lead Case No.:
OLT-22-002007
Legacy Lead Case No.:
PL210098
Heard:
February 7 to 11 and February 17, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Transmetro Limited
Denise Baker
Town of Oakville
Nadia Chandra
DECISION DELIVERED BY D. CHIPMAN AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1This matter concerns appeals by Transmetro Limited (the “Applicant/Appellant”) under s. 17(40) and 22(7) of the Planning Act (“Act”), for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”). The Appellant has appealed to the Tribunal as the Town of Oakville (“Town”) has neglected to make a decision on these proposed applications within the statutory timelines.
2The Subject Property is located at the southwest corner of MacDonald Road and Reynolds Street, in the Town. The lands are legally described as Part of Lot O, Registered Plan 1 and is municipally known as 358 Reynolds Street (“Subject Property”/ “Site”).
3The purpose of the Application is to seek approval to permit the redevelopment of the Subject Property by replacing an existing three-and-a-half storey legal non-conforming medical building with a three storey, 14-unit residential condominium building.
4The Application proposes to redesignate the Subject Property from Low Density Residential to Medium Density Residential (RM4 zone) to permit both the built form and the proposed residential density. The density range permitted within the Medium Density Residential designation is between 30 units per site hectare and 50 units per site hectare.
5The Subject Property is designated under Part V of the Ontario Heritage Act as part of the Trafalgar Road Heritage Conservation District (“TRHCD”).
6It was noted at the onset of the hearing that the Participant Statements of Trafalgar Chartwell Residents’ Association, Sally Reynolds, Thomas Vandepeer and Daniel Prosser would be weighed accordingly in this Decision of the Tribunal.
7The Tribunal notes that in an email dated, December 16, 2021, the Region of Halton (“Region”) withdrew their Party status to this Hearing and subsequently, removed the issues pertaining to the Region from the Issues List, which governs this Hearing.
SITE CONTEXT
8The Subject Property is approximately 2,825 square metres (“m2”) 30,408 square feet (“ft2”) (approximately 0.3 hectares) with a frontage of approximately 37 metres (“m”) (121.3 feet (“ft”)) on Reynolds Street and a depth of 76 m (250 ft) on Macdonald Road. It is a long rectangular shaped lot with the wide portion facing Macdonald Road and the narrow portion facing Reynolds Street, which is deemed to be the front lot line. The Site is developed with a three-and-a-half storey medical building, which fronts onto Reynolds Street. The building is currently unoccupied since 2018.
9The parking area associated with the existing building is located in the rear of the property and generally extends to the property limits. Vehicular access is currently provided via a curb depression at the south-east corner located on Reynolds Street and two additional curb depressions along Macdonald Road.
10There is little vegetation, due in part to the paved parking lot and the building on Site. Trees are located around the periphery. Specifically, there are seven trees located along the Macdonald Street frontage. Of these seven trees, four are located within the municipal right-of-way with the remaining trees being located on the Subject Property or along the property boundary.
11The lands on the north side of Macdonald Road are predominantly with single detached dwellings. Further to the north, on the north side of Cornwall Road, is the location of the Olde Oakville Marketplace retail shopping centre. Uses within the retail shopping centre include a grocery store, restaurants and various retail stores. The Oakville GO Transit station is located approximately 600 m along Trafalgar Road to the northwest of the Subject Property. A six-storey residential apartment building is located to the northeast at 392 Pine Avenue.
12The lands to the east are the former Oakville Trafalgar Hospital lands. The demolition of the hospital building was completed in mid-2018. The Site has been partially redeveloped with the new Oakville Trafalgar Community Centre and Neighbourhood Park. The Town has approved an overall master plan for the former hospital lands, which includes medium density townhouses, low density single detached dwellings, and a seniors-oriented housing district in the south.
13The lands to the south have been developed predominantly with single detached dwellings. MacLachlan College, located at 339 Trafalgar Road, is a private school, that abuts the southwest corner of the Subject Property. There are four existing Medium Density Residential apartment buildings, which are located at 312, 288, 268 and 262 Reynolds Street. The property located at 264 Reynolds Street, has been development with a six-storey High Density Residential apartment building.
14The lands to the west have been developed with single detached dwellings, which abut the east bank of the Sixteen Mile Creek.
15The Subject Property is located within the TRHCD. The TRHCD includes the area between Sixteen Mile Creek in the west and Reynolds Street and Allan Street in the east, and between Spruce Street in the north and Sumner Avenue in the south. The Subject Property is located at the north-easterly edge of the TRHCD.
PROPOSED DEVELOPMENT CONCEPT
16The Applications seek to permit the redevelopment of the Subject Property with a new three-storey residential condominium building, consisting of 14 residential units.
17The first and second floors of the proposed building contain six residential units, the third floor will have two residential units. Each of the proposed residential units will be single floor units. Access to the building will be by way of three separate entry doors located at ground level on the Macdonald Street frontage. Each of the entries provide lobby access to the units by either ground floor access or an elevator lobby internal to the building.
18The proposed three-storey building is designed to appear as a two-storey building, with the third storey being terraced and set back within the roofline for the building.
19The development incorporates vehicle parking in an underground parking garage beneath the building. Access to the underground parking garage will be by way of a proposed driveway entrance located along the westerly property boundary and providing access to Macdonald Street.
20A total of 37 parking spaces are provided in the underground parking garage, which includes six dedicated visitors parking spaces and one accessible parking space.
PROPOSED PLANNING INSTRUMENTS
21The proposed OPA seeks to redesignate the Subject Property from the existing Low Density Residential land use designation to the proposed Medium Density Residential designation. The proposed built form and residential density will comply with the provisions of the Medium Density Residential designation and will not require any site-specific policies.
22The proposed Zoning By-law Amendment seeks to rezone the property from the existing RL5-0 (Residential Low 5) Zone to the proposed RM4 (Residential Medium 4) Zone subject to the following site-specific zoning regulations to implement the Proposal:
a reduction in the minimum required side yard (southerly property boundary) from the required 4.5 m to the proposed 3.99 m (-0.51 m); and,
a reduction in the minimum required front yard (Reynolds Street) from the required 6.0 m to the proposed 4.5 m (- 1.5 m).
THE HEARING
23The Tribunal heard from eight witnesses, on behalf of the Parties. All witnesses were qualified to provide expert evidence in their respective fields.
Appellant’s Witnesses:
David Capper, Land Use Planner
Tom Kasprzak, Urban Design
Philip van Wassenaer, Urban Forestry
Philip Evans, Heritage Architecture
Town’s Witnesses:
Kate Cockburn, Land Use Planner
Christina Tizzard, Urban Design
Michelle Drmanic, Arborist
Carolyn Van Sligtenhorst, Heritage Planning
LEGISLATIVE TESTS
24The Issues List forming part of the Procedural Order governed the presentation of the evidence and the Hearing of these Appeals. From a policy context, the issues before the Tribunal require the general determinations of whether the proposed OPA and the proposed ZBA have sufficient regard to the Provincial interests listed in s. 2 of the Act, is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms to the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”), the Region of Halton Official Plan (“ROP”), the Town of Oakville’s Livable Oakville Official Plan (“Town OP”), has regard for the Town’s Urban design guidelines, is guided by the TRHCD and in general, represents good planning and is in the public interest.
PLANNING EVIDENCE
HIGHER ORDER PROVINCIAL POLICY – PPS, GROWTH PLAN AND THE PLANNING ACT
25The Tribunal can, in a summary fashion, address the extent to which the Proposed Development addresses these higher order Provincial planning policies and matters contained in the Act, the PPS and the Growth Plan and make its findings as to consistency, conformity and regard for s. 2 of the Act.
26At the outset of his oral testimony, Mr. Capper reviewed the requirements under s. 2 of the Act, with his professional opinion and commentary on subsections (a) through subsection (s) and concluded by providing his opinion that the Proposal had appropriate regard for matters of provincial interest.
27Both Mr. Capper and Ms. Cockburn were in agreement that the PPS and the Growth Plan support the intensification of the Subject Property and that some form of higher density development is appropriate.
28Mr. Capper reviewed the various policies of the PPS and the Growth Plan and concluded that the proposed planning instruments, as they would permit a higher density, multiple-unit building, with varied forms of units, within the delineated built boundary, supported by infrastructure, and transit supportive, are consistent with the PPS and conform to the policies of the Growth Plan.
29It was the position of the Town that while the policies of the PPS and the Growth Plan are met as it relates to intensification, the application fails with respect to the policies dealing with cultural heritage.
30Ms. Van Sligtenhorst, the Town’s Heritage Planner, acknowledged to the Tribunal during cross examination that in arriving at her conclusion, the application was not consistent with the PPS and does not conform to the GP. Her conclusions were based on the premise that the proposed development does not meet the guidelines of the Trafalgar Road District Plan and as a result of this non-conformity with the District Plan, the Proposal fails on all other levels.
31It was brought to the attention of the Tribunal, that Ms. Van Sligtenhorst, erroneously interpreted the cultural heritage sections of the PPS and the GP by assessing the Proposal entirely devoid of the Town’s support for any intensification. In this matter, the TRHCD Plan neither identifies any heritage attributes of the TRHCD nor identifies any individual properties as being contributing or non-contributing and as such, the proposed development and the planning instruments should have been assessed based on this premise when consideration was given as to whether they are consistent with the directions on intensification within the PPS and Growth Plan.
THE HALTON REGION OFFICIAL PLAN (“ROP”)
32Mr. Capper stated that according to Map 1 (Regional Structure) of the ROP, the Subject Property is located within the Urban Area designation of the Urban System. Additionally, the Subject Property is located within the Region’s Built Boundary for the Town. Lands within the “Urban Area” are intended to accommodate the Region’s growth over the long term where urban services are or will be made available to accommodate existing and future urban development and amenities.
33The Tribunal heard that the policies of the Urban Area designation promote complete and compact communities that support intensification within the Built Boundary where urban services exist to accommodate concentrations of existing and future development.
34Mr. Capper noted the Region’s objectives for the Urban Area are found in s. 72 of the ROP, which establishes the objectives to support a form of growth that is compact and supportive of transit usage and non-motorized modes of travel, reduces the dependence on the automobile, makes efficient use of space and services, promotes live-work relationships and fosters a strong and competitive economy.
35It was noted that the Region has not identified any areas of non-conformity between the proposed development and the policies contained within the ROP. He stated that the single issue raised by the Region, as it relates to the requirement for receiving a Record of Site Condition has been resolved. Ms. Cockburn concurred.
Liveable Oakville Official Plan (“Town OP”)
36The Subject Property is identified as a ‘Residential Area’ on Schedule A1 – Urban Structure of the Town OP. The Town OP indicates that Residential Areas include low, medium and high-density residential uses as well as a range of compatible facilities such as schools, places of worship, recreational and commercial uses that serve the residents of the Town.
37The Subject Property is currently designated as Low Density Residential within the OP as shown on Schedule G – Southeast Land Use. There is no site-specific exception contained in OP to recognize the medical building use.
38The Low-Density Residential designation permits a range of low-density housing types including detached dwellings, semi-detached dwellings and duplexes and provides for a maximum density of 29 units per site hectare, or 8 units on the Subject Property.
Intensification
39Section 4.3 of the OP establishes policies for Residential Intensification Outside of the Town’s Growth Areas. Section 4.3 of the OP states that:
“While the Plan encourages intensification generally throughout the built-up area, it also recognizes that some growth and change may occur in these areas provided the character of the areas is preserved and the overall urban structure of the Town is upheld. Intensification outside of the Growth Areas including additional intensification opportunities such as infill, redevelopment and grey field and brownfield sites, will be considered in the context of this Plan.”
40Mr. Capper acknowledged that s. 4.3 of the Town OP indicates that that the key focus for development and redevelopment to accommodate intensification will be the locations identified as Growth Areas, but he went on to add, the Livable Oakville Plan also provides for additional residential intensification outside of the identified Growth Areas and generally, throughout the built-up area. Given that, the Subject Property would meet the Town OP definition as a Brownfield Site, as it is a previously developed commercial property that was contaminated and is underutilized, derelict or vacant, he opined the Subject Property is an appropriate location for intensification and redevelopment.
41The Tribunal was informed that the Proposal incorporates an appropriate and desirable form of modest residential intensification that contributes to the provision of a wider range of housing choices within the neighbourhood; supports transit ridership including higher order transit and other public amenities, such as the new community centre, planned parks and schools, and allows residents to take advantage of the wide array of shops, services, restaurants and other facilities within the area.
42It was Ms. Cockburn’s opinion that while the subject lands are not within a designated Growth Area, the Subject Property could accommodate some form of intensification beyond the existing Low Density Residential permissions, provided that the development is integrated and sensitive to the existing site conditions and surrounding neighbourhood.
43She confirmed that s. 11.2 and s. 11.3 of the Town OP contain policies regarding permitted uses and densities for the entire Low Density and Medium Density Residential designations, under which, the proposed development having a density of 49.77 units per site hectare complies with the proposed Medium Density Residential land use designation.
44She opined that while this may be true, this density represents an overbuilding of the Site and creates unacceptable adverse negative impacts.
45It was her opinion that the proposed redevelopment partially satisfies the locational criteria in that the Site has an existing non-residential use and has sufficient frontage and depth, however she stated that one must also apply the criteria of s. 11.1.9 to ensure the compatibility and appropriateness of accommodating intensification in Residential Areas.
Neighbourhood Character and Built Form
46Turning to s. 11.1.9 there was agreement between the Planners that the definitions of “Character”, and “Compatible” as provided in Livable Oakville, inform how s. 11.1.9 is to be interpreted and applied. It is clear that the ‘character’ of the area is informed by the TRHCD. However, the Parties differ in their land use planning opinions regarding the compatibility.
47It was the opinion of the Town’s Urban Designer and cultural Heritage Planner items a, b, c, h, and i are applicable to the proposed development.
48Section 11.1.9 states:
Development within all stable residential communities shall be evaluated using the following criteria to maintain and protect the existing neighbourhood character:
a) The built form of development, including scale, height, massing, architectural character and materials, is to be compatible with the surrounding neighbourhood.
b) Development should be compatible with the setbacks, orientation and separation distances within the surrounding neighbourhood.
c) where a development represents a transition between different land use designations or housing forms, a gradation in building height shall be used to achieve a transition in height from adjacent development.
h) Impacts on the adjacent properties shall be minimized in relation to grading, drainage, location of service areas, access and circulation, privacy, and microclimatic conditions such as shadowing.
i) The preservation and integration of heritage buildings, structures and uses within a Heritage Conservation District shall be achieved.
49Mr. Capper opined the proposed development provides for a similar building height as to what currently exists on the property albeit in a different built form and with a wider mass. In his opinion, the height of the proposed development is compatible with the surrounding low-rise immediate context, which includes a mix of one, two and three storey detached dwellings and walk-up apartment buildings between two-and-a-half and three-and-a-half storeys in height.
50The Tribunal heard evidence that portions of the third floor of the proposed development are setback from the main dwelling façades, providing a transition in building height. The architectural character and materiality of the proposed development through the use of brick veneer, pre-cast trim, and slate roofing provides for an appropriate response to the existing pattern of house-form buildings in the neighbourhood.
51The Tribunal was made aware that the proposed development has been scaled to fit into the existing and planned built form context along Macdonald Road and is compatible with the existing one and two-storey dwellings located in the neighbourhood. In this respect, Mr. Capper opined, "compatible" does not mean "identical to" but rather means the ability to co-exist without unacceptable impacts of one upon the other.
52In terms of massing, the Tribunal heard that the third floor incorporates a break in the middle of the building along Macdonald Road to diminish the overall massing and is articulated along both street frontages with a series of setbacks to visually reduce the overall appearance.
53In terms of setbacks, the front yard setback of at least 4.62 m was informed by the neighbourhood where there are only two residential properties that have setbacks of approximately 7 m to accommodate driveways. The Tribunal was provided examples illustrating the varied setbacks in the vicinity ranging from 5.7 m (293 Macdonald Road) whereas the majority of the remaining front yard setbacks to the west are around 1 m. The south side of Macdonald Road is currently vacant but is intended to be redeveloped with single detached homes in the future.
54The Tribunal was informed a setback of over 9.0 m from the main rear wall of the building to the interior side lot line (southerly property line), noting that the emergency exit stairwells and terraces/balconies are setback at approximately 4.0 m from the interior side lot line with the building entrances and front façade oriented toward Macdonald Road in a manner which is consistent with the existing streetscape. The rear façade has been stepped in at grade and again at the third level to provide a side yard setback and transition to the lower scale properties to the south.
55The Tribunal heard that the proposed development provides an appropriate degree of separation between the proposed building and the adjacent residential properties having the benefit of the preservation of the existing mature vegetation, which assists in providing a visual screen. Given the extent to which existing vegetation is preserved at the periphery of the Site, it is not anticipated that the proposed development will impose impacts regarding privacy and overlook.
56In terms of privacy, the Tribunal was informed of the incorporation of a coniferous hedge buffer at grade along the southerly lot line. On level two, the proposed terraces incorporate a landscaped strip and privacy screens. On level three, the main terraces incorporate a wide landscape strip while the two smaller corner terraces include privacy screens. In terms of shadows, the Proposal is located on the south side of a public street with the bulk of shadowing happening within the public right-of-way. Based on the foregoing, Mr. Kasprzak opined that the impacts have been minimized.
57The Tribunal heard that shadowing from the proposed building will be projected away from the nearest adjacent dwellings and into the MacDonald Road and Reynolds Street rights-of-way. It is not expected that shadowing from the proposed building will cause a negative impact on adjacent properties. The stair enclosures have also been massed and sited to ensure they conform to limit their visibility from the adjacent public realm and adjoining properties.
58It was both Messrs. Capper and Kasprzak’s opinion, the Applicant has considered and respected s. 11.1.9 of the Town OP.
59Ms. Cockburn stated that it was her opinion that while the proposed development is maintaining the same number of storeys as the existing building, the increase in physical height coupled with the larger building footprint and reduced setbacks to the south and west property line does not demonstrate a gradation in building height as required by s. 11.1.9 c).
60The Tribunal heard that at 14.33 m in height, is 4.69 m taller than the building existing on the Site. In addition, the proposed building features significantly taller floor-to-ceiling heights, with the first floor at 3.85 m and second floor at 4.15 m, which are more typical to commercial storey heights than residential.
61It was Ms. Tizzard’s opinion that the issue of height and massing must be addressed through site-specific special provisions of the zoning by-law that will regulate the overall height and maximum height of certain locations to incorporate necessary transitions in building height and increased setbacks from the property lines to achieve a massing that is more compatible with the surroundings.
62Ms. Tizzard stated that the architectural expression and building materials could be finalized through subsequent planning processes, such as site plan control and heritage permits.
63She was critical of the Appellant’s use of the parent RM4 zoning regulations in determining the appropriate setbacks with further adjustments through special provisions, which she stated do not reflect or respect the character of the surrounding established area. It was her opinion that the issue of setbacks must be addressed through site-specific special provisions of the zoning by-law.
64She opined that the proposed by-law amendment requests reductions in the parent medium density regulations, which does not attempt to achieve compatibility with the surrounding neighbourhood.
65Ms. Van Sligtenhorst concurred, adding that while some details of the development could be further refined during subsequent planning processes such as Site Plan or through the submission of a heritage permit application.
Cultural Heritage and Trafalgar Heritage Conservation District Plan (“TRHCD”)
66The Site is designated under Part V of the Ontario Heritage Act, as part of the TRHCD. The TRHCD Plan does not provide an individual assessment of the Site, nor does it identify if it contributes to the cultural heritage value of the District. The Site is not listed or individually designated under Part IV of the Ontario Heritage Act.
67The Tribunal has reviewed the detailed submissions of both by Ms. Van Sligtenhorst and Mr. Evans. The Town’s OP, through s. 5.3.5 requires that decisions regarding development within the TRHCD (also within the immediate vicinity) be guided by the TRHCD Plan.
68Mr. Evans stated that the Subject Property has been historically developed with non-residential uses and has sufficient frontage and depth to accommodate appropriate intensification through the development approvals process.
69The Tribunal heard an overview of the recommendations of ERA Architects, who authored the Heritage Impact Assessment. Mr. Evans highlighted how the proposed building integrates with the Heritage District:
Providing low-density residential uses on the Site and creating a more consistent built form rhythm on the street that is compatible with the District;
Vertically articulating the north, east and west elevations into bays that are consistent with the typical lot/building width of neighbouring properties;
Providing a fenestration pattern that is consistent with the District, including rectangular and segmented windows with a greater window to wall ratio;
Providing a materiality that is sympathetic to and compatible with the District and neighbouring properties, including precast and brick in a light colour palette and a stone base;
Providing a set back on both Macdonald Road and Reynolds Street that is consistent with neighbouring properties; and,
Introducing soft landscaping and street trees on both the north and east frontage.
70It was Mr. Evans’ opinion that the proposed development will not impact the adjacent heritage resource at 293 Macdonald Road as it has been designed to be sympathetic to and compatible with the surrounding properties and the historic streetscape character of the District.
71He discussed the redevelopment of the former Oakville Trafalgar Hospital site (“Hospital Lands”) as an example to reinforce the diversity of land uses within the neighbourhood with lot fabrics that are diverse and relatively inconsistent.
72The Tribunal was provided with photographs of the new Oakville Trafalgar Community Centre to reiterate the premise of character and compatibility. Mr. Evans stated that the new community centre is modern in shape, constructed of mixed materials and is directly across from houses and apartments in the TRHCD.
73Mr. Evans brought the Tribunal to s. 5.3.6 of the OP, which states:
The Town should require a heritage impact assessment where development or redevelopment is proposed:
a) on, adjacent to, or in the immediate vicinity of, an individually designated heritage property;
b) within, adjacent to, or in the immediate vicinity of, the boundaries of a Heritage Conservation District
74And s. 5.3.7:
The Town may impose, as a condition of any development approvals, the implementation of appropriate measures to ensure the conservation of any affected cultural heritage resources, and where appropriate, their integration into new development.
75Mr. Evan’s added that the Heritage Impact Assessment speaks to the proposed development as having no negative impacts on the TRHCD and the current vacant building as having no heritage value. He stated that the Proposal brings back residential to the Site where there currently stands a vacant building and a paved parking lot.
76Ms. Van Sligtenhorst spoke to the proposed three-storey building as excessively higher than surrounding buildings and the roof design with its steep hip roofs and prominent arched dormers that does not allow the third storey to visually recede away from the façade of the building. She added, there is too much architectural and visual focus on the roof of the building, which in her opinion, is far too obtrusive and distracting.
77Mr. Evan’s conceded in cross-examination that the removal of the dormers would help in reducing the impact of the mass and scale of the Proposal, which could be revisited at during the Site Plan Approval process.
78She summarized the application as not conforming with the cultural heritage policies of the Town OP stating that the cultural heritage value of the adjacent Part IV and Part V designated heritage properties would not be protected nor enhanced by this development.
Urban Forest
79Mr. Van Wassenaer referred to the Functional Servicing report submitted in support of the proposed development that included a preliminary Grading Plan, which identified the manner in which stormwater management would occur on the Site. Any potential issues relating to grading and drainage would be further addressed through the Site Plan Approval process.
80It was his opinion that the proposed site layout and retention of existing mature boundary trees provides for adequate degrees of separation between the proposed and existing development and as such, effectively aids in mitigating potential impacts resulting from the scale of the proposed building.
81He drew attention to the Town’s policy that enables the establishment and implementation of procedures to prevent damage or destruction of trees, provide for replacement of trees and optimize planting provisions and tree health for future arboricultural activities within the Town.
82The Tribunal was informed through the Arborist Report prepared by Urban Forest Innovations Inc., dated March 19, 2020, tree removal will be necessary to facilitate the proposed work.
83Mr. Van Wassenaer opined that the proposed work will require the implementation of specific tree protection measures to ensure effective tree retention, including tree protection fencing, root-sensitive excavation and root pruning, and that arborist site supervision will be followed.
84Recommendations for tree removal are based upon the consideration of the anticipated impacts upon trees due to implementation of the proposed works, the immediate and forecasted health and structural condition of the tree, and the ability of the tree to make continued contributions to the newly modified landscape, which he stated will be dealt with through the Site Plan Application Process.
85Ms. Drmanic took the Tribunal to the tree management policy of the Town, tree preservation is an important element, as described in the Town OP, Sections 6.10.2 and 10.1.1(e). The OP indicates that development in the Town should maintain existing healthy trees where possible, provide suitable growing environments for trees, maintain the existing urban forest, and increase the existing urban forest.
86She informed the Tribunal that tree protection zones (“TPZ”) are determined by the tree trunk diameter size, and the greater the tree diameter the greater the distance from the tree the zone must be. The Town’s standard TPZ distances are set as a minimum to preserve anchor and transport roots.
87It was her opinion that with this development, there are proposed encroachments into the minimum TPZ areas in the form of excavation, construction, and potential grading and drainage works that would harm tree roots and crowns, as well as requiring pruning. She opined that these activities do not maintain a suitable growing environment for the existing trees.
URBAN DESIGN POLICY AND REGULATORY FRAMEWORK
Livable Oakville Official Plan (“Town OP”) – Urban Design (Section 6)
88Section 6 of the Town OP recognizes the importance of good urban design as an integral part of the planning process and a key component of creating a definable sense of identity.
89It was Mr. Kasprzak’s opinion that the Proposal meets each of the following sections:
Section 6.1.1 sets out a number of objectives including providing for diversity, comfort, safety and compatibility with the existing community; attractive, barrier-free, and safe public spaces, such as streetscapes; and innovative and diverse urban form and excellence in architectural design.
Section 6.2, Public Realm of the Town OP the Proposal will extend and enhance the existing public realm along the street frontages with new pedestrian sidewalks, lawns and pedestrian walkways and maintain existing trees in the boulevard.
Section 6.3 speaks to, Complete Streets, the proposed development enhances the existing streets by prioritizing pedestrian, cyclist and transit usage along comfortable, barrier-free safe routes such as Reynolds Street, which connects the Subject Site with the existing Oakville GO Station to the north.
Section 6.4 (Streetscape) as the Proposal enhances and improves the existing streetscape along the Subject Site’s two frontages by replacing a large surface parking and a non-residential use with a residential building that incorporates well landscaped zones and maintains existing trees in the boulevard and proposes new trees.
Section 6.9.3 (separation and landscape buffering), the Proposal incorporates a coniferous edge planting to ensure buffering throughout the year and wide landscape planters along the edges of terraces above. For spatial separation, the building provides adequate setbacks from the adjacent residential properties to the west and south. Above level 2, the design incorporates a break in the building and a gabled roof design to diminish the massing of the building at the top, addressing s. 6.9.9, which provides further guidance on transition.
Section 6.9.5 (active and visually permeable façades), the front doors are oriented to the streets (and in so doing, also satisfying s. 6.9.6) and the façades incorporate numerous windows to provide “eyes on the street at the ground and 2nd levels. At level 3, the number of windows diminishes to minimize any potential privacy impacts.
Section 6.9.7, the Proposal is designed with variation in building mass, façade treatment and articulation. The massing of the building is articulated with numerous setbacks of the façade on the lower levels and a break in the massing at level 3.
Section 6.9.14 (outdoor amenity areas), The Proposal includes screening of private outdoor amenity areas on levels 2 and 3, that consist of wide landscape planters and privacy screens, which help mitigate any potential privacy impacts. Six ground floor terraces approximately 49 m2 (540 ft2) in area are located on the ground floor, six balconies on the second floor, and two rooftop terraces on the third floor to provide private amenity spaces for each of the units with which they are associated.
90Mr. Kasprzak explained that the balconies are to be provided with a 0.91 m (3 ft) wide landscape planter with vertical plant materials that provide a visual buffer. In addition to the landscaped planter, half of each balcony is screened with a 1.53 m (5 ft) high privacy screen. A full height privacy screen is provided between abutting balconies. The second-floor balconies are approximately 38 m2 (413 ft2) in area.
91The third-floor terraces are provided with a 2.0 m (6.5 ft) wide landscape planter. The intent of these planters is to provided visual screening to and from the third-floor terraces. A secondary terrace is provided for each of the two penthouse units at the southwest and southeast corners of the building. These terraces are provided with a 1.53 m (5 ft) high privacy screen along the southerly portion of the terrace. Landscaping and boundary trees along the southerly and westerly property boundaries are to be retained and preserved.
92Mr. Kasprzak agreed with the Town that the current design’s aggregates could be improved, by increasing the setback at the center entrance and widening the recess in the middle but indicated this could occur at or during the Site Plan Approval process. He suggested that, should revisions be required to the Zoning By-law following a review by the Town, the Order in this matter could be withheld pending the Town’s revisions being incorporated into the Zoning By-law.
Analysis and Findings
93The Tribunal finds that the Proposal is consistent with the policy direction established by the PPS and conforms to the relevant directives established by the Growth Plan. The proposed amendments to the OP and zoning by-law affecting the Subject Property are consistent with the PPS, will conform with the Growth Plan and will conform with the City OP.
94The Tribunal is satisfied that the Proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and in the greater public interest. More significantly, the Proposal furthers the goals and objectives of the Provincial planning regime to increase housing opportunities.
95The OPA is appropriate in the context of the OP, and the ZBA conforms with the OP as amended herein. The Tribunal finds that the proposed intensification is appropriate as the proposed development is within walking distance to commercial establishments, a major transit node and recreational facilities.
96The Tribunal is satisfied that the Proposal is compatible with the existing and planned built form context and will enhance the area by intensifying an under-utilized site with an appropriately scaled medium density residential development.
97The Tribunal is satisfied the proposed form, setbacks and height of the development are compatible from an urban design perspective with the physical context of the surrounding area. Parking and other service functions of the development will be located away from the public realm to minimize any potential visual impact.
98The Tribunal is satisfied that the Applicant has provided sufficient evidence to demonstrate a proposal, which mitigates the impact of overlook on the surrounding neighbours within the context of an urban setting, examined the effects of shadowing, which has been demonstrated to have no negative impacts on the surrounding area, addressed tree preservation and protection measures, and provided for an overall design, which has been demonstrated and will result in upholding and not challenge the overall urban structure of the Town and the TRHCD.
99The Tribunal is satisfied that the conceptual design will, through the Site Plan Application process, conform to the urban design, built form and pedestrian level comfort policies of the Urban Design Direction for Oakville to optimize this infill site.
100The Tribunal recognizes that although the final design and form of the proposed development has yet to be determined, the direct and cogent evidence from the witnesses realizes a compatible built form in the proposed three storey development, which would not have any adverse effect upon the cultural heritage value and heritage attributes of the District.
101The Tribunal is satisfied the OPA and ZBA are appropriate and desirable and would permit a contextually appropriate building design that overarches policy directions promoting intensification on the Subject Site, represents good land use planning and is in the public interest.
DISPOSITION
102Based on the evidence, discussions, findings and reasons summarized above and after due consideration for all of the comments received through the Participant Statements and final written and oral submissions of Counsel for the Town and Applicant/Appellant, the Tribunal allows the appeals of the Applicant/Appellant in respect of the OPA and the ZBA applications.
103As such, the Tribunal will allow the appeal with respect to the ZBA application, in part, and in principle, with the Final Order of the Tribunal to issue once conditions are agreed to between the Parties and have been cleared by the City Solicitor, and Orders as follows:
INTERIM ORDER
104The appeal of the proposed Official Plan Amendment is allowed in part, and the proposed Amendment to the Town of Oakville Official Plan, a copy of which is provided as Attachment 1 hereto, is hereby approved in principle;
105The appeal of the proposed Zoning By-law Amendment is allowed in part, and the proposed Zoning By-law Amendment to the Town of Oakville By-law No. XX, a copy of which is provided as Attachment 2, is hereby approved in principle;
106The Tribunal shall withhold its Final Order on the Official Plan and Zoning By-law Amendments, pending written confirmation from the Parties of the following:
a. That the Parties have reached an agreement on the final form of the Official Plan Amendment;
b. That the Parties have reached an agreement on the final form of the Zoning By-law Amendment;
107In the event that there are any issues arising out of the Tribunal’s disposition, the Parties may request further assistance from the Tribunal.
“D. Chipman”
D. CHIPMAN
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1
ATTACHMENT 2