Unity Project for Relief of Homelessness v. London (City), 2022 CanLII 51255

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 09, 2022

CASE NO(S).:

OLT-22-002111

(Formerly PL210168)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Unity Project for Relief of Homelessness

Subject:

By-law No. Z.-1-212904

Municipality:

City of London

OLT Case No.:

OLT-22-002111

Legacy Case No.:

PL210168

OLT Lead Case No.:

OLT-22-002111

Legacy Lead Case No.:

PL210168

OLT Case Name:

Unity Project for Relief of Homelessness v.

London (City)

Heard:

March 7, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Unity Project for Relief of Homelessness (“Appellant”)

Paula Lombardi

East Village Holdings Ltd. (“Applicant”)

Analee Baroudi

City of London (“City”)

Aynsley Anderson

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1East Village Holdings Limited (the "Applicant") applied for a Zoning By-law Amendment (“ZBA”), which was approved by the City of London (the "City"). The amendment to Zoning By-law No. Z-1- 212904 (the "By-law") is for the subject site comprising 690, 696, 698, 700 King Street, 400 Lyle Street, 701, 725, 729, 735, 737 Dundas Street and 389, 391, 393 Hewitt Street in the City.

2The requested amendment is to rezone the subject site for a mixed-use development with one apartment building of 24 storeys and a six-storey podium containing ground floor commercial space. A total of 243 residential units are proposed with two levels of parking underground and structured parking located above the ground floor in the podium.

3The ZBA will amend and update the bonus zone for the entire parcel to permit the greater height and density in exchange for the provision of bonusable features such as affordable housing, underground parking and enhanced urban design.

4The ZBA was appealed by Unity Project for Relief of Homelessness on March 3, 2019. (the "Appellant").

5The Tribunal heard this appeal under section 34(19) of the Planning Act, which permits a third-party appeal of a ZBA.

ISSUES

6The Unity Project appealed the approval of the ZBA by the City, based on what it recognizes as a need to look to the future of land use planning to work toward alleviating the housing crisis in London and specifically Old East Village.

7The issue before the Tribunal is whether to approve the ZBA as meeting the legislative tests set out by the Planning Act, with the current package of benefits under Section 37, that have been agreed to by the City and the Applicant or refuse the ZBA in its entirety.

SUBJECT LANDS AND LOCATIONAL CONTEXT

8The lands are located at the southwest corner of Dundas Street and Hewitt Street and are part of a larger landholding that is known municipally as 690, 696, 698, 700 King Street; 400 Lyle Street; 701, 725, 729, 735, 737 Dundas Street; and 389, 391, 393 Hewitt Street in an area of the City of London known as the Old East Village (“subject lands”). The subject lands are irregular in shape and have a total area of 1.653 hectares (“ha”) (4.08 ac); and have frontage along Dundas Street, Hewitt Street, King Street, and Lyle Street.

9The majority of the subject lands have been previously developed for a 24-storey, 325-unit apartment building at the northwest corner of King Street and Hewitt Street; a 21-storey, 292-unit apartment building located mid-block along King Street (Phase 1); and a 21-storey, 299-unit apartment building located at the northeast corner of King Street and Lyle Street (Phase 2) (“Phase 1 & 2 lands”). This is a hearing on the Phase 3 portion of the total property.

10The lands identified as Phase 3 (“Phase 3”) have a total area of 0.306 ha (0.76 ac) and are currently occupied by surface parking; a two (2)-storey commercial/residential building at the southwest corner of Dundas Street and Hewitt Street; and two, one (1)-storey commercial/office buildings fronting Dundas Street. The existing structures are to be demolished to allow for the proposed 24-storey, mixed-use building containing 243 residential dwelling units and ground level commercial uses.

11Surrounding uses include mixed use (commercial, residential, institutional) in all directions from the subject lands, with buildings of various heights and densities.

12The Appellant’s lands are located immediately west of the Phase 3 lands; are known municipally as 717-721 Dundas Street (“Unity Project Lands”); and are currently occupied by a two (2)-storey building housing the Unity Project, a registered charity that provides emergency shelter, supportive housing, and a housing stability program.

APPLICATION HISTORY AND PROPOSED DEVELOPMENT

13An Application for a ZBA was presented to the City on November 18, 2019 (“Application”). A Pre-Application Consultation meeting was held with City Staff on December 10, 2018. The Application originally requested permission for a 24-storey, mixed-use commercial/residential apartment building containing 278 residential units, 870 square metres (“m²”) of commercial floor area, and 259 parking spaces on the Phase 3 lands.

14The City of London considered the Application complete on November 29, 2019, and circulated Notice of Application on December 11, 2019. A Public Open House and Community Information Meeting was held on February 12, 2020, to allow the public to provide comments regarding the proposed development.

15As a result of the comments received, the form and design of the proposed mixed-use building was revised to include a reduction in the number of residential units; an increase in the number of parking spaces provided in the underground parking structure; increase of tower setbacks; and changes to the overall building form and materials.

16The revised proposal before the Tribunal includes a 24- storey, mixed-use commercial/residential apartment building containing 243 residential units, 900 m² of commercial floor area, and 393 parking spaces.

17On December 18, 2020, the London Housing Development Corporation (“LHDC”) provided a summary letter to City Staff outlining its recommendation and rationale for the affordable housing elements to be provided as part of the bonusing provisions to be included in the ZBA.

18A Public Meeting was held on January 18, 2021, before the City of London Planning and Environment Committee. City staff presented a Report recommending that the application be approved to include; a commercial ground floor design that divides the floor space along Dundas Street into multiple bays with separate and direct entrances to the sidewalk; a minimum floor to ceiling height of 4.5 metres (“m”) (15 ft) for the ground floor that is greater than the height of all other individual storeys, to activate the street and create a pedestrian realm; the provision of a portion of the fifth-floor roof as a landscaped outdoor amenity areas; a minimum step-back of 25 m (82 ft) of the tower portion of the building from Dundas Street above the sixth storey; a slim tower floor plate of less than 1,075 m² (11,571sq ft) for floors 7-24 to minimize the overall mass, visual impact and sunlight disruption of the tower; the building form will utilize changes in colour and material to visually break up the massing of the tower; and building step-backs above the 22^nd storey to define the building cap and completely conceal the mechanical and elevator penthouse within the overall architectural design.

19The Report spoke to implementing a Bonus Zone to facilitate a mixed-use commercial/residential apartment building, with a maximum height of 24 storeys (82 m), and a maximum density of 750 units per ha for the overall site; provide for a minimum of 393 parking spaces within two levels of underground parking and structured parking within the podium as well as a provision for affordable housing. This element of the Bonus Zone consists of total of thirteen (13) residential dwelling units provided as nine (9) one-bedroom units, and four (4) two-bedroom units with two of the residential dwelling units being provided as accessible units, which may be either the one or two bedroom units, or a combination thereof. It was proposed that rents not exceeding 80% of the Average Market Rent (“AMR”) for the London Census Metropolitan Area as determined by Canada Mortgage Housing Corporation at the time of building occupancy with the duration of affordability set from 30 years from the point of initial occupancy.

20Other than the overall density permission of 750 units per hectare, the Phase 1 and 2 lands are not affected by this Application, as the previous bonusing provisions have been provided through the construction of Phase 1 and Phase 2.

21Council considered the Application on February 2, 2021, and unanimously approved the amended ZBA and added a holding provision (h-5) to require a public Site Plan Approval process prior to the development.

THE HEARING

22The Issues List forming part of the Procedural Order governed the presentation of the evidence at the hearing of this Appeal. The issues before the Tribunal can be broadly identified as the determination of whether the amendments to the zoning by-law that will permit the revised development: has sufficient regard to the Provincial interests listed in s. 2 of the Act; are consistent with the Provincial Policy Statement, 2020 (“PPS”); conform to the applicable Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) as amended; conform to the City’s Official Plan (“OP”); and represent good planning in the public interest.

23For the ease of the reader, the Tribunal qualified, without objections, the following individuals to provide expert opinion evidence in their respective field of expertise as well as individuals providing contextual evidence.

24For Unity Project - Appellant, William Pol, Land Use Planner and Chuck Lazenby, Executive Director Unity Project to provide contextual evidence.

25For the City, Sonia Wise, Land Use Planner, Britt O’Hagan, Urban Design and Heritage and Stephen Giustizia, CEO of the Housing Development Corporation, London.

26For East Village Holdings Limited - Applicant, Harry Froussios, Land Use Planner

THE LEGISLATIVE FRAMEWORK; THE PLANNING ACT

27Under s. 2 of the Act, the Tribunal must have regard for matters of Provincial interest. The Tribunal heard that the subject lands are currently identified for urban development within the City OP and that the proposal advances the provincial interests by providing the orderly development of safe and healthy communities and by the adequate provision of a full range of housing, including affordable housing.

28Section 37 of the Act permits the City to authorize increases in building height and density of a development in return for “facilities, services or matters”.

PROVINCIAL POLICY STATEMENT

29Ms. Wise stated that the ZBA is consistent with the PPS which promotes building strong healthy communities (Policy 1.1.1(a) and (b)) as the proposed development represents an efficient development pattern that supports sustainability by promoting strong, liveable and healthy communities with an appropriate mix of affordable and market-based residential types, which is achieved by the provision of affordable housing units that form part of the bonus zone.

30The proposal is of a compact form that will efficiently optimize the use of land and develop a key site within the Old East Village Main Street that contributes to the area’s revitalization. The proposal provides for a mix of residential and commercial uses which are suitable and encouraged in the main street location along Dundas Street.

31The Tribunal heard that the development is consistent with Policy 1.4.3(d) as the proposed density and a mix of uses will serve to minimize the length and number of vehicle trips and support the development of viable choices and plans for public transit. In this respect the site is well-located in a core part of the city that benefits from existing transit services and is in proximity to planned future rapid transit route along King Street.

32Ms. Wise stated the development is consistent with Policy 2.6.1 which identifies that heritage resources shall be conserved. The site is adjacent to a designated heritage property and consistent with policy 2.6.3, the proposed development has been evaluated with regards to impacts on the adjacent heritage designated building and it has been satisfactorily demonstrated that the heritage attributes of the designated heritage property will be conserved.

33It was the opinion of Mr. Pol that there are insufficient community resources for shopping, recreation and institutional uses for the additional units; amenities are not sufficient for the intensity of units proposed; shopping, recreation and institutional services are beyond a convenient walking distance and require the use of public transit or private vehicles for access.

34It was his opinion that the proposed ZBA is not consistent with Policy 1.1.1 b) to accommodate an appropriate mix of residential market and affordable housing because it does not meet the City of London target for 25% affordable housing and that there is insufficient public recreation, park and open space and institutional uses to meet long-term needs of the proposed development.

35He further opined that the proposed ZBA is not consistent with Policy 1.4.3 where planning authorities shall provide an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents.

36It was his opinion that the design is not consistent and does not incorporate the design features or the cultural heritage significance of the Unity Project property at 719 and 721 Dundas Street.

The London Plan:

37The Tribunal heard that Policies 197 and 565 of the London Plan were not in force at the time the Application was submitted. These policies came into force after the consideration of the Application by Council. As such, these policies are not determinative but were informative in providing context on the surrounding neighbourhood.

38With regard to Policy 197, the Tribunal heard that the proposed design is consistent with the Urban Corridor and Rapid Transit Corridor place types and achieves the planned vision of a mixed-use, higher intensity neighbourhood with convenient access to transit. The ground floor heights, commercial presence, and use of brick relates well to the adjacent heritage building and contributes to achieving a sense of place through the built form.

39The Tribunal heard that as per Policy 565, a Heritage Impact Assessment (“HIA”) was prepared to assess the impact of the development on the Unity Project Lands, which is an adjacent heritage property given its designation under Part IV of the Ontario Heritage Act, and which is currently used as an office. The Tribunal heard that the study and the proposed development were considered by Heritage staff as well as the London Advisory Committee on Heritage (“LACH”) on January 8. 2020. The LACH were satisfied with the research, assessment and conclusion of the HIA.

Issue 2(a) - Housing (497, 524)

40Policy 497 sets out the goal of providing accessible and affordable housing to be pursued through all of the City’s planning and initiatives.

41Ms. Wise opined that this policy is a priority for planning and development to strive towards and is reflected in a number of strategies and initiatives such as The Housing Stability Action Plan and The Affordable Housing Development Toolkit. The proposed development is for an apartment building which provides a choice of housing types in the Old East Village, allows for aging in place, and an integrated mixture of market and affordable housing through the bonus provisions. The additional residential units add to the municipal housing stock which creates more housing options for all members of the community and can assist with reducing homelessness for individuals and families.

42Policy 524 describes efforts to reduce homelessness and achieve housing stability as a ‘Housing First’ model. The priority of a Housing First approach is to move individuals and families experiencing homelessness into housing with support and then work through the issues that contributed to their homelessness.

43She re-iterated that both Policies 497 and 524 are foundational policies which guide planning and development applications. The OP focuses on programs and policies that deliver quality housing as a service to lower-income and vulnerable Londoners. It was her opinion that the proposal adds to the housing stock which broadens the number and type of residential units available and provides more housing choice.

Affordable Housing - 517, 518, 519, 521

44The Tribunal heard that the housing policies of the 1989 OP are implemented in a variety of ways, including through site-specific Zoning Amendments.

45Ms. Wise opined that Policy 518 identifies that secondary plans and larger residential development proposals should include a 25% affordable housing component through a mix of housing types and sizes, with 40% of new housing in a secondary plan to be in forms other than single detached dwellings. The site is within the Old East Village Dundas Street Corridor Secondary Plan (“OEVDSCSP”) which is an existing built-up area in the City’s core. Providing a mix of housing types and sizes can create intrinsically affordable housing where smaller units or apartment units are generally more affordable than larger dwelling forms such as a single detached dwellings. The 243 new residential units contribute to achieving a mix of housing types and styles as an apartment building form comprised of studio, one bedroom and two-bedroom units.

46She elaborated on Policies 519 and 520 explaining it represents a deeper affordability than the definition for ‘affordable housing’, and typically are types of housing that are delivered through programs that receive assistance or financial support and not through site specific bonus zoning. The Tribunal heard that Policies 519 and 520 are not directly applicable or recommended for the proposed development.

47Bonus zoning that is contemplated for this provision of ‘affordable housing’ is a defined term in OP as:

Affordable housing means either one of the following:

1. In the case of ownership housing, will mean either one of the following:

a. Housing for which the purchase price results in annual accommodation costs which do not exceed 30 percent of gross annual household income for low and moderate income households;

or

b. Housing for which the purchase price is at least 10 percent below the average purchase price of a comparable resale unit in the City of London;

2. In the case of rental housing, will mean either one of the following:

a. A unit for which the rent does not exceed 30 percent of gross annual household income for low and moderate income households;

or

b. A unit for which the rent is at or below the average market rent of a unit in the City of London.

48Ms. Wise stated that the proposed units conform to the definition of affordable housing based on clause 2.b) for rental housing.

49Policy 521 identifies that building height and densities may be increased to support the provision of affordable housing through bonus zoning. A bonus zone was required and requested to achieve the greater height and density proposed.

50The implementing bonus zone proposes a total of 13 affordable residential units, with rents not exceeding 80% of the AMR for the duration of 30 years in exchange for the greater height of 24 storeys and overall density of 750 units per ha.

51Ms. Wise stated the Housing Development Corporation (“HDC”) plays a central role in the bonusing discussion for affordable housing. The HDC provides resources, knowledge, expertise, support and recommendation to planning staff during the review of planning applications for bonus zoning. The HDC considers the local housing market factors in the subject land area, the planning needs of the community, and the capacity for required units within and throughout the proposed development and provides a recommendation for the provision of affordable housing units to staff. The Official Plan does not contain a policy that provides any direction to how many units would be required to be provided in exchange for a bonus, and instead identifies the qualifiers as ‘commensurate’, ‘fair’ and ‘reasonable’.

52Mr. Giustizia, of the HDC was engaged to facilitate negotiations and provided a recommendation to the City in response to Applicant’s ZBA request for increased height and density (“bonusing”) in exchange for the provision of affordable housing.

53Mr. Giustizia took the Tribunal through the exercise applied to calculate the outcome of the recommended 13 units. He provided an overview of the elements that are contained in the Report for HDC which constituted the recommendations to Council.

54He informed the Tribunal that subject to availability and with the concurrence of the City, some or all of the nine (9) one-bedroom units and four (4) two-bedroom units may be secured immediately by the City within existing vacancies in the adjacent developments owned and/or managed by the proponent or their associated corporate entity.

55Mr. Giustizia acknowledged the support of the Applicant in the fair negotiation of the bonus, particularly the opportunity to immediately address the City’s urgent housing needs through existing vacancies and the alignment of the affordable rental units with priorities identified in the City’s Housing Stability for All Plan.

56Mr. Pol stated the London Plan Affordable Housing Policy 517 establishes a target of 25% new housing is to be affordable to low-and-moderate-income families.

57He opined to achieve this policy new development should provide at least 25% affordable units to address the lack of affordable housing. For Phase 3 with 243 apartment units, 25% represents 60 affordable units. The bonusing of 13 units representing 5.3% of permitted units does not conform to the intent of the policies for affordable housing and is contrary to the plan. Mr. Pol compared the total of the lands subject to the zoning bonusing and the proposed 13 units represents 1.1% of the total permitted units.

58It was his opinion that the proposed bonus for affordable units is the only substantive public benefit for the bonus zoning. The number of bonus units compared to the extent of the public benefit is not sufficient to approve the proposed ZBA.

City of London Official Plan (1989): Housing Objectives

59The proposed development supports the objectives of the OEVMSCC policies of the Official Plan which encourages redevelopment in the area and retail oriented development along the Dundas Street Corridor (Section 4.4 Commercial Corridors).

60Section 19.4.4 (Implementation – Bonus Zoning) of the OP identifies the “facilities, services or matters” the City will accept in return for an increase in height/density.

61The City maintains that the purpose of Bonus Zoning is to encourage development features or cash-in-lieu of enhancements, on-site or off-site, that provide public benefits that cannot be obtained through the typical development process.

62In principle, the OP mandates that the proposed facilities, services or matters that are offered should be reasonable for both the City and the developer and result in a net benefit to the general public and/or enhancement of the design or amenities of a development. The additional height and density should not result in a scale of development that is incompatible with adjacent uses or exceed the capacity of available municipal services

63Ms. O’Hagan stated that bonus zoning can be used to support the implementation of Urban Design Principles as outlined in Section 11 of the 89 Plan. The Tribunal heard an overview of how the bonus zoning when applied, contributes to the overall design of the development through Section 11.

64Policy 12.2.1 Housing Availability sets out policies to increase the supply of housing. Policy 12.2.1 Affordable New Residential Development iv) establishes a target of 25% of housing to be affordable through new residential development. Policy 12.2.2 Measures to Increase the Supply of Affordable Housing; Bonusing, iii) allows the provision of density bonuses where the affordable housing component is above the 30% minimum. The 30% minimum provision referenced, is described in policy 12.2.2 i) b) where larger residential development proposals, generally greater than 5 ha in size, located outside of an existing Secondary Plan boundary, may require up to 30% of the new housing units to be in forms other than single detached dwellings.

65She opined that the total area of the larger land holding is 1.653 ha, the site is within a Secondary Plan area, and all units are proposed in an apartment building form. It was her opinion that the affordable housing units provided through the bonus zone conforms with the spirit and intent of the policy to deliver affordable housing units through a variety of tools.

66It was Mr. Pols opinion that the proposed zoning amendments and the provision of 13 affordable apartment units does not exceed this minimum threshold and therefore does not meet the policy for density bonusing.

Bonus Zoning (Section 19.4.4)

67The “Bonus Zoning” policies of the City’s new official plan, the London Plan, are not in force. As such, the policies that are applied to all Section 37 By-laws in the City of London are the policies from the 1989 Official Plan (the “89 Plan”).

68The Tribunal heard that the 89 Plan allows Council to permit increased height and density in exchange for enhancement to the development design and/or the provision of facilities, services and matters that benefit the public. The intent of the policy is that the City and the developer will agree that the bonusing criteria is reasonably proportionate to the increase in height and/or density from a cost/benefit perspective.

69It was Ms. O’Hagan’s opinion, that the City and Applicant have mutually agreed that the increase in height and density is proportionate to the facilities, services and matters being provided. Ms. Wise stated the proposed density of 750 uph would provide the Applicant with the opportunity to develop 701 Dundas without having to return at a future date to obtain permissions.

70Ms. O’Hagan stated the proposal includes both public benefit in the form of affordable housing units, as well as an enhancement to the design of development. The resulting zoning permissions are in keeping with the scale of the surrounding uses including the three existing high-rise apartment towers that share the block.

71Mr. Pol argued that the 89 Plan designation is Main Street Commercial Corridor. Policy 4.4.1.7 directs density for mixed use buildings to Policy 3.4.3 Multi-Family High Density Residential. Policy 4.4.1.7 directs density for mixed use buildings to Policy 3.4.3 Multi-Family High Density Residential (“MFHDR”). This MFHDR policy establishes a density of 150 uph outside of the Downtown and Central London. The proposed density is 750 uph.

72He explained that Policy 3.4.4 Density Bonusing relies on the provisions in Policy 19.4.4 for the density increase in return for certain public facilities, amenities or design features. He stated that in Policy 19.4.4 Principle i) consideration of a height or density bonus should be reasonable in the cost/benefits and must result in a benefit to the general public and/or enhancement to the design or amenities of the development.

73The City’s 1989 Official Plan (“OP”), London Plan, and Zoning By-law allow for the use of Section 37 of the Act (“Bonusing”) to permit an increase in height and density in exchange for public benefits.

Old East Village Dundas Street Secondary Plan: Permitted heights 3.3.1 (e) and (g); High-Rise Form 3.3.4 (g) and Bonusing 3.4 (a) and (b)

74It was noted that the Secondary Plan was under appeal at the time the application was accepted as complete. The Secondary Plan policies were considered as part of the application review, and are considered to be informative, but not determinative.

75The permitted height policies in 3.3.1 (e) identify that low-rise, mid-rise and high-rise buildings up to 12 storeys are generally permitted on the south side of Dundas Street, on both sides of King Street, and on both sides of Ontario Street. The subject site is located on the south side of Dundas Street, at the corner of Dundas Street and Hewitt Street which permits high-rise buildings up to 12 storeys, according to policy 3.3.1 (e).

76Policy 3.3.1 (g) describes the bonusing permissions for lands that permit high-rise forms, where heights exceeding the established maximum, up to 24 storeys may be permitted through a site-specific bonus zone where it can be demonstrated that significant measures are put in place to support or mitigate the additional height or density, subject to the bonusing policies of section 3.4.

77Ms. Wise stated that the site is within an area that contemplates high-rise development and is eligible for consideration of up to 24 storeys through a site-specific ZBA. The requested amendment is proposing a maximum height of 24 storeys in exchange for bonusable features, which is consistent with the upper limit of the maximum heights permitted.

78Mr. Pol stated that the increase to 24 storeys and increase in density to 750 units per hectare do not conform to these policies as the number of affordable units and increase in parking are not in the public interest.

79In his opinion Policy 3.3.4 (g) High Rise Form sets out the provisions for tower minimum distance setback. The setbacks being proposed for the tower fails to protect opportunities for future development on adjacent properties.

80Policy 3.6.10 describes the calculation for ‘net density’ as the total area of the land designated and proposed for residential development, including of lands dedication for the purpose of widening existing roads, less any parcels of land to be used for schools, parks, public roads or other non-residential uses.

81The Z.-1 Zoning By-law definition of density is as follows: “DENSITY" means the ratio between the number of dwelling units located or proposed to be located on a lot to one (1) hectare of lot area.”

82The proposed development is referred to as Phase 3 which forms part of a larger land holding. There are three (3) existing apartment buildings on site with a total of 916 residential units and a lot area of 1.551 ha. Phase 3 is a consolidation of properties that were both previously owned by the same entity and recently acquired. The building at 729 Dundas Street and the vacant lands to the west were previously in the same ownership and landholding as the existing apartment buildings. The properties at 735 and 737 Dundas Street and 393 Hewitt Street were lands that were acquired to facilitate the proposed development of Phase 3.

83Phase 3 proposes an additional 243 residential units, and 900 sq m of commercial gross floor area, which equates to nine (9) additional residential units for the purpose of calculating density. The new total lot area for the existing and proposed development is 1.653 ha of land, and there is a total of 1,168 units (916 existing built units and 252) for a total density of 706.6 units per ha (uph), which was rounded up to 710 uph to allow for minor adjustments and referenced in the staff report.

84The Tribunal was informed that during the application review and public consultation period, the local Business Improvement Area (“BIA”) identified that development of the Dundas Street frontage (specifically 701 Dundas Street) was shown conceptually through past development phases and is a desirable outcome for the corridor. The site at 701 Dundas Street forms part of the larger land holding and is in the same zone as the apartment buildings along King Street with its density tied to and governed by the bonus zone. The intent of the Secondary Plan, OP, and the specific policies in the 1989 Official Plan is to recognize the important role of the Dundas Street corridor and encourage its revitalization.

85The Tribunal heard that the property at 701 Dundas Street is vacant and under-utilized lands that are owned by the developer and could conceivably develop within the parameters of the existing base zone if they had more density allocated. The density permission in the proposed bonus zone was increased from 710 uph to 750 uph to provide additional density that could be used separately from the bonus zone for development along Dundas Street without the need for an additional ZBA. Providing additional density through this application allows for new built forms along the Dundas Street corridor to help activate the lands with new commercial and/or residential uses and was supported and requested by the community during the public consultation period.

86It was noted that the proposed building has a consistent front yard setback to the Unity Project Lands which maintains the general streetwall at a human-scale. The west property boundary of Phase 3 is adjacent to the Unity Project Lands, is setback 3.0 m from the west interior side yard for the first 9.5 m back from Dundas Street, then provides a 1.0 m interior side yard setback until the approximate extent of the building on the Unity Project Lands. These setbacks provide relief from the edge of the building and is greater than the requirements of the base zone which allows a 0 m setback for properties within the Business District Commercial (“BDC”) zone. The tower portion of the proposed building is also setback 26.0 m – 36.5 m from Dundas Street which reduces the massing and shadows of the structure along Dundas Street, and the adjacent property of the Unity Project Lands.

87It was the City’s perspective that the policies of the 1989 Official Plan, The London Plan and the Old East Village Dundas Street Corridor Secondary Plan collectively identify the intent for these lands and what type of development represents good planning. The redevelopment and intensification of the site is an efficient use of the land in a compact form that optimizes existing services and infrastructure.

88The recommended amendment conforms to the in-force policies of the 1989 Official Plan, including but not limited to the objectives of the OEVMSCC policies which encourages redevelopment in The Village Annex segments of the Main Street Commercial Corridor.

89Ms. Wise provided a detailed planning analysis and rationale which formed the basis for her opinion that the proposed implementing ZBL is good planning. East Village Holdings Ltd. proposes to rezone their landholdings to the Business District Commercial zone that includes the first two phases of development, with additional specific bonus provisions for Phase 3. The amendment will replace and expand the existing B-32 Bonus Zone.

90Phase 3 is located within walking distance of two planned rapid transit stations. The proposed development is appropriate for this area and is consistent with the land uses, scale and intensity of the surrounding development, thereby making the site an acceptable location and development for Bonus Zoning. Section 37 of the Act permits the City to authorize increases in building height and density of a development in return for “facilities, services or matters”. The City’s 1989 Official Plan (“OP”), London Plan, and Zoning By-law allow for the use of Section 37 of the Act (“Bonusing”) to permit an increase in height and density in exchange for public benefits.

91She concluded by stating that the recommended amendment conforms to the in-force policies of the Old East Village Dundas Street Corridor Secondary Plan that promotes the continued revitalization of the area.

FINDINGS

92The Act provides municipalities the ability to advance public facilities, services or matters in exchange for additional height and density above existing zoning permissions. The ability to utilize this tool by the City of London is a mechanism to advance affordable rental housing that aligns with the intention of the Act.

93The Tribunal is satisfied that the proposed development is compatible with the existing and planned built form context of the area and will enhance the area by intensifying an under-utilized site by providing a development that is well-served by transit and encourages economic growth.

94The Tribunal finds that the proposed intensification is appropriate as the proposed development is within walking distance to commercial establishments, future major transit opportunities and recreational facilities.

95The Tribunal finds that the policies of the 1989 Official Plan, The London Plan and the Old East Village Dundas Street Corridor Secondary Plan collectively identify the intent for these lands and what type of development represents good planning which are satisfied through the proposal. The development and intensification of this site is an efficient use of the land in a compact form that optimizes existing services and infrastructure.

96The Tribunal is satisfied the recommended amendment conforms to the in-force policies of the 1989 Official Plan, including but not limited to the objectives of the OEVMSCC policies which encourages redevelopment in The Village Annex segments of the Main Street Commercial Corridor.

97The Tribunal recognizes Mr. Giustizia as having a long and passionate concern for the state of affordable housing in the City of London. His testimony was clear. He recognized that average market rents are not available or accessible to many Londoners, that housing affordability is one of the City’s principal planning challenges and that the lack of rental space currently is one of the reasons for the current crisis.

98With that said, he also recognized that the locational attributes of the site directly align with the guidelines and considerations used by HDC to advance affordable rental housing, in this case through the agreed Section 37 agreement between the Applicant and the City.

99The Tribunal is satisfied that based Mr. Giustizia evidence, the demonstrated thorough review of the calculations used to establish the number of units of affordable housing; the immediate results affected by the terms Section 37 agreement, that will ensure there will be 13 affordable rental accommodations to be sourced immediately through the approval of the ZBA and that the proposed development advances affordable rental housing in the City of London, the ZBA advances the public interest and is appropriate.

100The Tribunal notes that when questioned through cross-examination, Mr. Pol did not communicate any specific intention to recommend any amount of affordable housing that would meet the expectations of the Unity nor was he prepared to comment on how an increase in the Section 37 agreed upon number would impact the rest of the benefits in the package.

ORDER

101THE TRIBUNAL ORDERS that the appeal against Zoning By-law No. Z-1- 212904 of the City of London is dismissed.

“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.