Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 06, 2022
CASE NO(S).: PL200255
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Mountainview Developments Inc.
Subject: Request to amend the Official Plan – Refusal of request by the City of Welland
Existing Designation: Low Density Residential, Medium Residential and Natural Heritage
Proposed Designated: Medium Density Residential and Natural Heritage
Purpose: To permit the development of 85 townhouse condominium units and one four storey condominium apartment building with 50 residential units
Property Address/Description: 633 South Pelham Rd.
Municipality: City of Welland
Approval Authority File No.: OPA 22
OLT Case No.: PL200255
OLT File No.: PL200255
OLT Case Name: Mountainview Developments Inc. v. Welland (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Mountainview Developments Inc.
Subject: Application to amend Zoning By-law No. 2017-117 – Refusal of Application by the City of Welland
Existing Zoning: Residential Low Density 2 (RL2), Residential Medium Density (RM), and Environmental Protection (EP)
Proposed Zoning: Site Specific Residential Medium Density (RM) and Environmental Protection (EP)
Purpose: To permit the development of 85 townhouse condominium units and one four storey condominium apartment building with 50 residential units
Property Address/Description: 633 South Pelham Rd.
Municipality: City of Welland
Municipality File No.: 2019-02
OLT Case No.: PL200255
OLT File No.: PL200257
PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Mountainview Developments Inc.
Subject: Proposed Plan of Subdivision
Property Address/ Description: 633 South Pelham Rd.
Municipality: City of Welland
Municipal File No.: 26 CD-14-19003
OLT Case No.: PL200255
OLT File No.: PL200258
Heard: June 14, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Mountain View Developments Inc.
Rocco Vacca
City of Welland
Tom Hanrahan
DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL
BACKGROUND
1Mountainview Developments Inc. (the "Appellant"), appeals the refusal by the City of Welland (the "City") of an application for a Zoning By-law Amendment pursuant to s. 34(11) of the Planning Act (the “Act”) an Official Plan Amendment (“OPA”) pursuant to s. 17(40) of the Act and a Plan of Vacant Land Condominium pursuant to s. 51(39) of the Planning Act
2The Appellant sought permission from the City to permit the development of 85 townhouse condominium units and one four storey condominium apartment building with 50 residential units.
3The purposed Zoning By-law No. 2019-02 would amend Zoning By-law 2017-117 from Residential Low Density 2 (RL2), Residential Medium Density (RM), and environmental Protection (EP), to Site Specific Residential Medium Density (RM) and Environmental Protection (EP)
4The required OPA would change the designation of the lands from Low Density Residential, Medium Residential and Natural Heritage to Medium Density Residential and Natural Heritage.
5A Plan of Vacant Land Condominium was also applied for.
6The Tribunal heard that at the January 21, 2020 Council Meeting, City Council considered the recommendations of the Staff Report P&B-2020-03 pertaining to the applications. The recommendations of Report P&B-2020-03 were to approve all applications, subject to Conditions of Approval.
7Staff recommended:
THAT THE COUNCIL OF THE CITY OF WELLAND adopts Official Plan Amendment No. 22 to designate the lands on the west side of South Pelham Road, south of Sumbler Road, and north of the dead-end of Foxtail Avenue and Sparrow Drive, more specifically described as Part of Lot 1, Concession 12, former Township of Pelham, now in the City of Welland, municipally known as 633 South Pelham Road, from Low Density Residential to Medium Density Residential, and to modify the extents of the Core Natural Heritage and designate the lands outside of the Core Natural Heritage Area as Medium Density Residential;
THAT Welland City Council Approves Zoning By-law Amendment to Zoning By-law 2017-117 for lands on the west side of South Pelham Road, south of Sumbler Road, and north of the dead-end of Foxtail Avenue and Sparrow Drive, more specifically described as Part of Lot 1, Concession 12, former Township of Pelham, now in the City of Welland, municipally known as 633 South Pelham Road from Residential Low Density 2 (RL2), Residential Medium Density (RM), and Environmental Protection (EP) to Site Specific Residential Medium Density (RM) and Environmental Protection (EP);
THAT no further notice under the Planning Act are required as the proposed changes to the proposed Zoning By-law Amendment are minor, as per Section 34(17) of the Planning Act; and
THAT Welland City Council Approves the Draft Plan of Vacant Land Condominium for 85 townhouse units, one four-storey condominium building with 50 residential units, and one block of environmental lands, subject to conditions.
8During the January 21, 2020 meeting, Council referred consideration of Report P&B-2020-03 to staff and did not make a decision on the applications.
9On February 4, 2020 City staff provided a revised report to Council (Report P&B- 2020-08), which upheld the same recommendations and Conditions of Approval.
10Council deferred consideration of Report P&B-2020-08 during the February 4, 2020 meeting, specifically asking through the meeting minutes that a “new plan” be provided. No specific directions on what “new plan” should contain were provided.
11On February 6, 2020 a meeting between City staff and the applicant was held at Welland City Hall to discuss possible modifications to the plan to satisfy Council concerns. The City’s General Manager of Infrastructure and Development Services proposed the removal of 2-4 units at the western end of the private roadway as a means of satisfying Council’s concerns. This was not supported by Mountainview and an agreement to modify the Plan was not reached.
12Report P&B-2020-08 was presented unaltered to Council on February 18, 2020, where Council refused all applications.
13A Notice of Appeal for Applications 26CD-14-19003, OPA 22 and 2019-02 was filed with the City by Mountainview’s solicitor on March 11, 2020
Site Condition
14The Tribunal was informed that The Draft Plan of Vacant Land Condominium, Official Plan Amendment and Zoning By-law Amendments together propose a development to be known as “Southwoods” on lands known municipally as 633 South Pelham Road in the City of Welland. .
15The Tribunal heard the subject property known as 633 South Pelham Road is approximately 4.542 hectares (“ha”) of land that currently contains a single detached residential dwelling and Provincially Significant Wetland (PSW) . The property is located on the western edge of the City , within the urban area of Welland. There is agricultural use to the west of the property, and residential and commercial uses on the north, south and east of the property.
16The subject property is legally described as Firstly: Part Of Lot 1, Concession 12 Pelham Designated As Parts 2, 4, 6, 8, 10, 12, 14 and 16, 59R-13037, Part 1, 59R- 5655; Save and Except Part 14, 59R-13037; Secondly: Part Of Lot 1, Concession 12 Pelham Designated As Part 4, 59R-5144; Save and Except Parts 1 and 2, 59R- 13096, Except Parts 1 and 2, Plan 59R-16385; S/T Easement In Gross Over Part 1, 59R-13117 As In SN147924; City of Welland.
17The lands are located on the west side of South Pelham Road (Regional Road 36) between Sumbler Road and Thorold Road. Adjacent land uses include:
North: Residential (Single Detached Dwellings)
South: Residential (Single Detached and Townhouse Dwellings), Commercial
West: Agricultural
East: Residential (Single Detached Dwellings)
18The property was created through previously approved severances and amalgamations of land. A large portion of the subject lands is comprised of the former rear yards of adjacent properties along Sumbler Road (north).
19The property is 4.542 ha in area.
20The subject lands have 48.85 metres (“m”) of frontage along South Pelham Road (Regional Road 36), and 28 m of frontage along Sparrow Drive (local road ). The lot depth at its deepest point from South Pelham Road to the western lot line is approximately 359 m.
21The Tribunal heard that there are local municipal water service connections available from both South Pelham Road and Sparrow Drive, being 250 m and 200 m respectively. A local municipal 400 m sanitary sewer is available from South Pelham Road.
22There is a registered easement (as in SN147924) on the subject lands at the terminus of Sparrow Drive to the benefit of the City . This easement is associated with a paved turning circle that facilitates waste collection and emergency vehicle turning movements. This turning circle is outside of the Draft Plan boundary and is intended to be dedicated to the City when the t Plan is registered.
23The property has no established land uses or structures and contains sporadic clusters of trees and an evaluated Provincially Significant Wetland (“PSW”). A former dwelling on the subject lands that previously faced South Pelham Road was demolished in 2020.
Proposal
24The development proposal for the subject lands includes:
- An Application for a Draft Plan of Vacant Land Condominium for:
85 Units for Block Townhomes (Units 1-85)
1 Unit for a 50-unit Apartment Building (Unit 86)
1 Block for Environmental Protection (Wetland and Buffer Area) to be dedicated to the City of Welland (Block 1)
1 Block for Road Widening along South Pelham Road (Block 2)
- An Amendment to the City of Welland Official Plan for:
- To amend the land use designations from Low Density Residential, Medium Density Residential, Core Natural Heritage System and Environmental Protection Area to Medium Density Residential, Core Natural Heritage System and Environmental Protection Area.
- An Amendment to the City of Welland Comprehensive Zoning By-law 2017-17:
- To amend the Zoning from Residential Low Density 1 (RL1), Residential Low Density 2 (RL2), Residential Medium Density (RM) and Environmental Protection Overlay (EP) to a site-specific Medium Density Residential (RM-X) and Environmental Protection Overlay (EP).
Witnesses
25The hearing before the Ontario Land Tribunal (“Tribunal”) proceeded over the course of two days and the Tribunal heard from the following witnesses:
a. Craig Rohe was called to testify by the Appellant and qualified without objection to give opinion evidence in the area of Land Use Planning;
b. Adam Keane was called to testify by the Appellant and qualified without objection to give opinion evidence in the area of Stormwater Management and Servicing;
c. Ron Huizer was called to testify by the Appellant and qualified without objection to give opinion evidence in the area of Ecology and Environmental Impact Assessment
d. Stewart Elkins was called to testify by the Appellant and qualified without objection to give opinion evidence regarding a Transportation Impact Study (TIS)
e. David Deluce, Senior Manager for the Niagara Peninsula Conservation Authority, was called to testify under summons;
f. Lindsay Earle, Senior Development Planner for the Region of Niagara, was called to testify under summons;
g. Rachelle Larocque, Planning Supervisor – Infrastruture and Development Services for the City of Welland, was called to testify under summons.
ISSUES
26The Tribunal heard evidence concerning five (5) of 39 listed Conditions of Approval as recommended by the Welland Planning Staff in Report P&B- 2020-08.
27The Tribunal heard that the Appellant was requesting these conditions be deleted.
28The conditions which were the subject of the evidence in which the Appellant was requesting be deleted are;
6 That the north section of Foxtail Avenue shall be finalized and constructed to City municipal standards as per the design of Upper Canada Consultants on behalf of the developer. This will include the construction of a permanent cul-de-sac to urban standards, the extension of sidewalk to the cul-de-sac and sodding of the area boulevards to complete the street north of Thorold Road.
The engineering consultant shall submit a review and design of the wetland complex to include the removal/permanent plugging of the existing drainage pipe connecting to City infrastructure. This review shall determine the impact of the pipe removal and stormwater runoff implications to surrounding residents. This shall be provided to the engineering section for review and approval. If any further storm sewer work needs to be undertaken on the City right-of-way after the study has been completed, the developer shall be required to install any required works at their cost.
That the developer submit to the Niagara Peninsula Conservation Authority for review and approval an EIS addendum with engineering analysis that examines the most appropriate manner of stopping the existing stormwater pipe from draining the wetland as well as the impact of potential flooding as a result. Works to implement the aforementioned reports will require a work permit from the Niagara Peninsula Conservation Authority.
That an updated analysis/assessment be submitted that confirms any existing infrastructure currently located within the wetland, and potential changes to the wetland/water levels as a result of any required infrastructure changes (i.e., removal, capping, etc.) can be appropriately dealt with, without negatively impacting the wetland. This updated assessment should also confirm how Unit 36, the proposed roadways adjacent to Units 36 and 37, and the stormwater management pond will be constructed without encroaching into the PSW buffer.
That the owner submit a revised Transportation Impact Study (TIS) to the satisfaction of the Niagara Region Planning and Development Services Department.
ANALYSIS AND FINDINGS
Draft Plan Condition No. 6
29The Tribunal notes that the wetland complex, identified as Block 1 in the Draft Plan is intended to be dedicated to the City through the Planning Process. The written and oral evidence presented by Mr. Rohe, and representing the TIS prepared by Paradigm, confirms that Foxtail Avenue is not required for the development of this proposed subdivision.
30Moreover, the Tribunal heard evidence from Mr. Rowe that the proposal will not adversely impact Foxtail Crescent.
31The Tribunal prefers the evidence of Mr. Rohe, and the TIS prepared by Paradigm and finds that this Condition of draft plan approval is not reasonable. The City would be eligible to conduct its own Environmental Assessment upon transfer of ownership of the wetland to rectify a deficiency if the City so wishes.
32The Tribunal finds that this condition should be removed.
Draft Plan Condition No. 7
33The Tribunal notes that, based on the evidence presented by Mr. Rohe and the Beacon EIS, the existing pipe within the wetland feature has existed prior to the Appellant acquiring the property. Evidence was presented to the Tribunal that no negative impact resulted due to the presence of this pipe.
34Mr. Rohe opined that, as the wetland has not changed in scale and that the Beacon EIS makes no recommendation for additional review or an alteration to the existing pipe, this Condition is not based on any specific identified issue or problem.
35The Tribunal also notes that the applications propose long-term protection of the wetland including no development proposed within the wetland, planting enhancement of wetland buffers, fencing, redesignation and rezoning and the eventual transfer to the City for long term stewardship. Given these measures that t seek to protect the feature, the Tribunal finds that this Condition suggesting alteration within the wetland to be contradictory to the purpose of the applications.
36The Tribunal finds that this Condition should be removed.
Draft Plan Condition No. 12
37For the reasons noted in the paragraph above, the Tribunal finds that this Condition is not reasonable and should be removed.
Draft Plan Condition No. 19
38Through the expert evidence provided by Mr. Rohe, and the Beacon EIS, the Tribunal notes that there is no stormwater management pond next to the wetland. This area is a “dry pond” which will be employed during significant storm events as a back flow for the underground storage system to be used for the development. Any discharge causes by significant rainfall events will drain overland into the wetland feature.
39The Tribunal finds that, given the measures taken through the application to protect the feature for the long term, this condition that suggests alteration within the wetland is contradictory to the intent of the applications and should be removed.
Draft Plan Condition No. 32
40Mr. Rohe, in his written and oral testimony, made reference to the TIS prepared by Paradigm. He stated to the Tribunal that the TIS was based on a terms of reference which were reviewed and approved by Niagara Region.
41Mr. Rohe further stated that the TIS directs the Region to undertake an Environmental Assessment for the subject portion of road due to physical deficiencies and constraints which are beyond the control of the developer.
42Ms. Earl, in her evidence, stated that the Region’s request for a revised TIS is not a “fishing expedition” but rather a means of addressing some questions.
43In this instance, the Tribunal finds that the TIS prepared by Paradigm has been undertaken in a professional manner and that a peer review of same would only serve to delay this already lengthy process.
44For this reason, the Tribunal prefers the testimony of Mr. Rohe and finds that this condition is not reasonable and should be removed.
45Counsel for the Appellant has requested, “That Block 1, being the Provincially Significant Wetland and required buffer, shall be conveyed to the City of Welland prior to, or concurrently with the registration of the Vacant Land Condominium.”
46The Tribunal has to jurisdiction on this matter and thus will not compel the City to accept this conveyance.
ORDER
47THE TRIBUNAL ORDERS that the appeal is allowed in part and Orders that Amendment No. 22 to the Official Plan for the City of Welland is modified as follows; to designate the lands from Low Density Residential to Medium Density Residential, and to modify the extents of the Core Natural Heritage and designate the lands outside of the Core Natural Heritage Area as Medium Density Residential. The Tribunal Orders that Amendment No.22 to the Official Plan is approved as modified.
48THE TRIBUNAL ORDERS that the appeal against By-law No. 2017-117 of the City of Welland is allowed and the Tribunal directs the municipality to amend By-law No. 2017-117 as follows; for lands from Residential Low Density 2 (RL2), Residential Medium Density (RM), and Environmental Protection (EP) to Site Specific Residential Medium Density (RM) and Environmental Protection (EP)
49THE TRIBUNAL ORDERS that the appeal is allowed and the draft plan shown on the plan prepared by William A. Mascoe dated July 16, 2019 comprising Part of Lot 1, Concession 12, Township of Pelham in the City of Welland, Regional Municipality of Niagara is approved subject to the fulfillment of the conditions set out in Attachment 1 to this Order.
“Carmine Tucci”
CARMINE TUCCI
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.