Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 2, 2022
CASE NO(S).: OLT-21-001280
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lundy’s Lane Newmarket Assembly Inc.
Subject: Application to amend Zoning By-law No. 0225-2007 - neglect of the Town of Newmarket to make a decision
Existing Zoning: Residential Detached Dwelling 15M Zone (R1-D)
Proposed Zoning: Mixed Use Zone (MU-XX)
Purpose: 79 apartment units, configured in a 4-storey apartment building
Property Address/Description: 43 Lundy’s Lane, 592 Watson Avenue, 40, 36 and 32 Bolton Avenue
Municipality: Town of Newmarket
Municipality File No.: D14-NP21-01 (ZBA)
OLT Case No.: OLT-21-001280
OLT Lead Case No.: OLT-21-001280
OLT Case Name: Lundy’s Lane Newmarket Assembly Inc. v. Newmarket (Town)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject: Site Plan
Referred by: Lundy’s Lane Newmarket Assembly Inc.
Property Address/Description: 43 Lundy’s Lane, 592 Watson Avenue, 40, 36 and 32 Bolton Avenue
Municipality: Town of Newmarket
OLT Case No.: OLT-21-001281
OLT Lead Case No.: OLT-21-001280
Heard: May 5, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Lundy’s Lane Newmarket Assembly Inc. (“Appellant”) | Paul DeMelo |
| Town of Newmarket | Paul Voorn |
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON MAY 5, 2022 AND INTERIM ORDER OF THE TRIBUNAL
Introduction
1This matter, originally scheduled to be a case management conference, proceeded as a settlement hearing via video-hearing on May 5, 2022 (“VH”)
2The appeal related to a proposed 4-storey residential apartment building with 79 dwelling units (“Development”) located at the addresses municipally known as 43 Lundy’s Lane, 592 Watson Avenue, 40, 36 and 32 Bolton Avenue in the Town of Newmarket (“Town”), (collectively the “Subject Lands”).
3The Appellant’s counsel tendered the affidavit of Stephen Armstrong, sworn April 22, 2022, on consent, which together with exhibits comprised 213 pages.
4Mr. Armstrong is a registered professional planner and was qualified before the Tribunal at the VH to provide opinion evidence on land use planning matters. His written and oral evidence was unchallenged.
5In his affidavit and viva voce testimony, Mr. Armstrong opined as follows:
a. The total area of the combined parcels of land is approximately 0.93 acres (0.37 ha). The buildings on the Property are currently being used for residential and commercial purposes. There is a total of 5 existing structures across the site (plus accessory structures including garages and sheds). All existing structures will be demolished in advance of the redevelopment. The properties are sodded and have some limited vegetation including trees and shrubs, and specifically, at 43 Lundy’s Lane, there is a large asphalt surface parking lot;
b. The Subject Lands are designated Urban Centres & Corridors as per Schedule A of the Town’s Official Plan (“OP”). More specifically, they fall within the Town’s Urban Centres Secondary Plan (“SP”);
c. The Development conforms to the policies contained within the SP;
d. The purpose of the Appellant’s rezoning application is to bring the Subject Lands into conformity with the SP and into the Urban Centres Zoning By-law 2019-06 (“ZB”) as the lands are currently zoned under the Town’s Zoning By-law 2010-40 as R1-D, permitting detached dwellings which does not conform with the current OP designations for the Subject Lands;
e. The Development has regard to matters of provincial interest as required under Section 2 of the Planning Act R.S.O 1990, c. P13 (“PA”) as it provides for an appropriate form of intensification within the built urban area of the Town, that is serviced by existing and available infrastructure. The Subject Lands, by their designation as part of an Urban Centre, have previously been identified by both the Region of York (“Region”) and the Town as responding to Provincial direction by providing for an appropriately located intensification site thereby reducing the need to expand development into other areas where services and infrastructure would need to be extended;
f. In addition, the Development is consistent with the 2020 Provincial Policy Statement (“PPS”), in particular the policies in Part V, Policy 1 thereof which pertain to the efficient use of land and promoting liveable and healthy communities;
g. The Subject Lands are currently underutilized and therefore intensification is appropriate and desirable, as the Lands are fully serviced and connections will be provided off of Lundy’s Lane and Bolton Avenue. Additionally, the immediate vicinity is well connected by existing and planned local transit, and is within 500 metres of the Newmarket Go Station;
h. Although the surrounding area comprises mainly single-family dwellings, the proposed residential apartment building has been designed in such a manner so as to fit harmoniously within the existing and planned community and will provide individuals and families with greater opportunities to live within the area;
i. The Development conforms in all respects to the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”), as intensification of the Subject Lands in the form of a compact residential rental building with a mix of one-bedroom and two-bedroom dwelling units, with access to existing and future planned transit, active transportation, and an enhanced public realm, will help to achieve the goals of the Growth Plan;
j. The Subject Lands are located within the “Urban Area” of the York Region Official Plan (2010) (“Regional OP”) and in close proximity to the Regional Corridor of Davis Drive in the Town. The Regional OP encourages urban growth to be accommodated within this designation and permits a wide range of residential, commercial industrial and institutional uses, including apartment buildings. Thus, the Development conforms to the requirements of the Regional OP;
k. The proposed 5-storey apartment building is a form of development envisioned by the SP which was approved by the Town’s Council in 2014 and is within the mixed-use zone of the Urban Centres Zoning By-law. For this particular site, development ranging from 2-6 storeys with a minimum Floor Space Index (“FSI”) of 1.5 and maximum FSI of 2.0 is permitted and as such the Development conforms with these policies and contributes to the future vision for the area. No amendment to the Town’s OP is required in order to accommodate the Development;
l. The Subject Lands are currently zoned under Newmarket Zoning By-law 2010-40 (“By-law 2010-40”). This rezoning application will bring the properties into and under the new Urban Centres Zoning By- law 2019-06 (“By-law 2019-06”), with a site-specific MU-1-XX exception. This Zoning By-law also includes a holding provision on the Subject Lands, until such time that a site plan agreement has been entered into with the Town and that servicing allocation has been granted by the Town’s Council;
m. The proposed Zoning By-law Amendment, appended hereto as Attachment 1 allows for this Development which is consistent with and is in conformity with all applicable Provincial, Regional OP and Town OP policies. The Zoning By-law amendment will allow for the development to proceed in a manner contemplated by the relevant planning instruments and has been designed to address comments received by all commenting agencies, as well as the Town.
6The Tribunal accepted the unchallenged expert evidence of Mr. Armstrong as summarized in paragraph [5] above and concluded that the Development meets all requirements under the PA: regard for provincial interests, is consistent with the PPS, conforms with the Growth Plan, conforms with the Regional OP and the Town OP, and represents good planning.
7Therefore, the Tribunal allows this appeal in part and Orders as set out in paragraph [8] below. The Tribunal was advised that although the Parties have been negotiating a site plan agreement for the Development, the agreement is not yet finalized and was not presented to the Tribunal at the VH. The site plan will be required prior to consideration of the Tribunal’s Final Order.
INTERIM Order
8The Tribunal Orders:
The Zoning By-law Amendment in the form appended hereto as Attachment 1 is approved in principle;
The Tribunal will withhold its final Order pending receipt of confirmation by the Appellant and the Town that an acceptable site plan agreement has been finalized between the Parties and filed with the Tribunal for approval;
In the event that the Parties require the assistance of the Tribunal in dealing with any matters arising from this Interim Order, either Party may contact the Tribunal to arrange another hearing event if and as required.
“William R. Middleton”
William R. MIDDLETON
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
Zoning By-law Amendment