Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 13, 2022
CASE NO(S).: OLT-22-002281 (Formerly PL200293), OLT-22-002879 (Formerly PL210302)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2090572 Ontario Inc.
Appellant: The Highlands Residential Association
Subject: Proposed Official Plan Amendment No. 16
Municipality: City of Welland
OLT Case No.: OLT-22-002281
Legacy Case No.: PL200293
OLT Lead Case No.: OLT-22-002281
Legacy Lead Case No.: PL200293
OLT Case Name: The Highlands Residential Association v. Welland (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2090572 Ontario Inc.
Appellant: The Highlands Residential Association
Subject: By-law No. 2018-01
Municipality: City of Welland
OLT Case No.: OLT-22-002283
Legacy Case No.: PL200294
OLT Lead Case No.: OLT-22-002281
Legacy Lead Case No.: PL200293
PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2090572 Ontario Inc.
Subject: Conditions of approval of draft plan of subdivision (Numbers 10, 11, 12, 13, 15, 18, 19, 20, 21, 24, 34, 37, 38 and 43)
Property Address/Description: West side of the Welland Shipping Canal
Municipality: City of Welland
Municipal File No.: 26T-14-18004
OLT Case No.: OLT-22-002879
Legacy Case No.: PL210302
OLT Lead Case No.: OLT-22-002879
Legacy Lead Case No.: PL210302
OLT Case Name: 2090572 Ontario Inc. v. Welland (City)
Heard: March 31, 2022 by video hearing
APPEARANCES:
Parties
Counsel
2599587 Ontario Ltd. (“259 Ltd.”)
Mark Flowers Grace O’Brien
2090572 Ontario Inc. (“209 Inc.”) Highland Residents Association (“HRA”)
Scott Snider Anna Toumanians
City of Welland (“City”)
Kim Mullins
MEMORANDUM OF ORAL DECISION DELIVERED WILLIAM R. MIDDLETON AND S. MANN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was a settlement hearing conducted on March 31, 2022 by Video Hearing (“VH”) in two matters of appeal. The Case Number OLT-21-002281 is an umbrella designation, with the two sub-cases being PL200293 (“HP Case”) and PL210302 (“SV Case”).
2The HP Case involves an appeal by 209 Inc. and the HRA regarding the City’s decision to approve Official Plan Amendment 16 (“OPA 16”), the Zoning By-law Amendment No. 2020-61 (“ZBA”) and the revised Draft Plan of Subdivision (“DPS”), relating to 289 Daimler Parkway (“HP Site”).
3The SV Case involves an appeal by 209 Inc. of Conditions of Approval imposed by the City in the Draft Plan of Subdivision relating to property owned by 209 Inc. located on the west side of Welland Shipping Canal (“SV Site”).
4Commencing September 16, 2021 the parties and the City, 259 Ltd., 209 Inc. entered into mediation as facilitated by the Ontario Land Tribunal (“OLT” or “Tribunal), culminating in Minutes of Settlement being executed on February 11, 2022 (“MOS”).
HP CASE
5Prior to the VH, the Tribunal had received the affidavit of Mr. Mike Pettigrew sworn March 21, 2022, which, together with exhibits, comprised 498 pages. Mr. Pettigrew was qualified at the VH to provide opinion evidence on land use planning matters and provided the following evidence set out in paragraphs [6] to [17] below.
6The HP Site is located generally east of Highway 406, west of the Welland Shipping Canal, south of the Welland River and north of East Main Street and comprises an area of approximately 85 hectares previously utilized as a private golf club, which ceased operation in 2017. To the north and east of the HP Site is the SV Site which is adjacent to a residential development including the community represented by the HRA.
7The HP Site is designated Core Natural Heritage, and Parks, Open Space and Recreation in the City Official Plan (“OP”) and zoned Community Open Space – O2 and site-specific Neighbourhood Commercial NC-26 in the City Zoning By-law No. 2017-117 (“ZBL 2017-117”). The HP Site is within the City’s urban boundary and within the delineated built boundary/built-up area.
8259 Ltd. submitted applications for an Official Plan Amendment, Zoning By-law Amendment and Draft Plan of Subdivision to permit redevelopment of the HP Site with a mix of low density residential, medium density residential, neighbourhood commercial uses, and maintaining the Core Natural Heritage designated areas (“HP Applications”).
9The HP Applications were deemed complete on March 7, 2018 by the City. 259 Ltd. had proposed the following:
i. 747 single detached dwellings, 160 street townhouses (Blocks 754-757, 760-764, 777-785, 789-796), 35 condominium townhouse units (Block 759), 51 stacked townhouse units (Block 786), and 201 residential units in the mixed-use blocks (Blocks 750, 751,771-774);
ii. 17.43 ha of Public Parks and Open Space (Blocks 748, 753, 758, 765,766-768, 770, 775, 776, 787);
iii. Four (4) Stormwater Management Ponds (Blocks 749, 752, 769, 788); and
iv. Several new public roads (Street A to Street Y).
10The City conducted its public open house and statuary public meeting resulting in a revised proposal by 259 Ltd. on November 13, 2019, consisting of:
i. 735 single detached dwellings, 178 street townhouses (Blocks 736-752, 759-762, 770-778), 28 condominium townhouse units (Block 779), 44 stacked townhouse units (Block 757), and 170 residential units in the mixed-use blocks (Blocks 763, 763, 784);
ii. 17.56 ha of Public Parks and Open Space (Blocks 753, 754, 756, 767, 769, 780, 781, 783, 786);
iii. Modifications to the four (4) Stormwater Management Ponds (Blocks 755, 766, 782, 785); and
iv. Modifications to the public road network (Street A to Street AD).
11The City staff issued on May 26, 2020, a report recommending approval of the HP Applications, resulting in City Council, on June 9, 2020, adopting OPA 16, passing the ZBA and approving the DPS, including an amendment requiring an overpass from the HP Site over Highway 406 in order to connect to nearby Oxford Road, to be completed no later than development of the 600th unit of the HP Site.
12On July 6, 2020, 209 Inc. and the HRA each filed notices of appeal to both OPA 16 and the ZBA. The Tribunal notes that the DPS was not appealed.
13209 Inc. and the HRA’s separate appeals to OPA 16 and the ZBA were on the grounds of inconsistency with the Provincial Policy Statement 2020 (“PPS”), the policies of A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019 (now 2020) (“GP”), the Niagara Region Official Plan (“Region OP”) and the OP policies relating to planning and urban design; servicing and stormwater management; transportation; noise and vibration; and environmental and natural heritage concerns.
14The mediation entered into by the parties, culminating in the MOS identified the following issues:
i. The proposed permissions for the existing clubhouse and the potential commercial uses within the Neighbourhood Commercial block; and
ii. The plans for the size and alterations of Stormwater Management (“SWM”) Pond 3 and the proposed adjacent development;
iii. Matters related to capacity and allocation of municipal services; and
iv. Transportation and access to Subject Lands.
15Pursuant to the MOS, the Parties agreed on changes to the approved DPS in the area immediately south of Daimler Parkway centred around the proposed SWM Pond 3 and Open Space blocks, in substantial accordance with Schedule “C” to the Settlement made Attachment A hereto.
16OPA 16 has been modified pursuant to the MOS in order to recognize the revised SWM Pond and Open Space blocks in their agreed upon configurations, as also set out in Attachment A (“Modified OPA 16”).
17Pursuant to the MOS, parties have agreed that Schedule A to ZBA No. 2020-61 is to be amended to reflect the same revised SWM Pond and Open Space blocks per the Modified OPA 16 as set out in Attachment B (“Amended ZBA”). In addition, revised provisions were agreed to for the Neighbourhood Commercial portion of the HP Site, which currently has not been assigned a site-specific by-law number. The changes to the Neighbourhood Commercial Zoning consist of the following changes to address concerns of 209 Inc. and the HRA:
i. Limiting the permitted building height to three (3) storeys;
ii. Limiting the GFA of any building to 1,950 square metres;
iii. Establishing a building envelope around the existing clubhouse that would limit expansion, reconstruction, or redevelopment on the Block to a similar area and similar massing, as reflected in Schedule “B” of the Amended ZBA;
iv. Removing several as-of-right permitted uses under the Neighbourhood Commercial (NC) Zone, including permissions for any residential uses; and,
v. Limiting outside display and Seasonal Outdoor Uses.
18Based on the evidence provided by Mr. Pettigrew in his affidavit and testimony at the VH, the Tribunal is satisfied that the Modified OPA 16 and Amended ZBA are consistent with the PPS, conform with the GP, the Region OP, the OP and constitute good planning. The settlement reached by the Parties and the proposed development are appropriate and in the public interest.
SV Case
19In relation to the SV Case, the Tribunal received the affidavit of Craig Rohe sworn March 18, 2022, which together with exhibits comprised 35 pages. Mr. Rohe was qualified as an expert in land use planning and provided uncontested evidence at the VH, as described in paragraphs [20] to [24] below.
20The SV Site is located directly east of the HP Site. Adjacent land uses to the SV Site include to the north – residential; to the south and west – vacant (formerly Hunters Point Golf Club); to the west – Highway 406; and to the east – the Welland Shipping Canal and Agricultural Lands; and is 12.36 hectares in size.
21The SV Site is located within the Welland Urban Area, considered a Settlement Area under the PPS. It is designated Low-Density Residential in the OP and zoned Residential Low Density 1 (RL1) under the City Zoning By-law No. 2017-117.
22209 Inc. submitted its application for Draft Plan of Subdivision on April 6, 2018 (“SV DPS”). The City approved the SV DPS on June 16, 2020, permitting 173 residential units with additional blocks for future residential development as well a park block. 209 Inc. filed an appeal on April 30, 2021 related to the conditions related to the SV DPS (“Conditions of Approval”).
23The City had approved the SV DPS with 44 Conditions of Approval. 209 Inc.’s position on appeal had been that the City imposed obligations that are not reasonable, fair or equitable having regard to the nature of the development proposed. It was the allegation of 209 Inc. that the City had placed an inappropriate burden on them as a result of the approval of the HP Applications. Specifically, 209 Inc. had appealed Conditions 10, 11, 12, 13, 15, 18, 19, 20, 21, 24, 34, 37, 38 and 43 of the Conditions of Approval.
24As a result of the MOS, Conditions 10, 11, 12, 13, 15, 18, 20 and 24 of the Conditions of Approval have been modified as detailed as set out in Attachment 3 (“Revised Conditions”). The Revised Conditions address concerns raised in appeal by 209 Inc. by ensuring infrastructure work is timed in order to provide the SV Site flexibility of timing regardless of the timing of the HP Site, and to ensure that 209 Inc. does not unduly bear cost of the infrastructure work in the Site area, and instead share costs with 259 Ltd.
25Based on the evidence provided by Mr. Rohe, the Tribunal concludes that the Revised Conditions are reasonable, fair and equitable and that the settlement reached by the Parties with respect to them is appropriate and in the public interest. Moreover, the Tribunal accepted his opinion that the Revised Conditions did not impact the analysis that the Draft Plan of Subdivision is consistent with the PPS and conforms with the GP, the Region OP and the OP.
ORDER – HP CASE
26The Tribunal Orders as follows.
27The appeal in respect of Amendment No. 16 to the Official Plan for the City of Welland (“OPA 16”) is allowed in part and OPA 16 is approved as modified and set out in Attachment 1 hereto.
28The appeal in respect of the Amendment to Zoning By-law No. 2020-61 of the City of Welland (“ZBA”) is allowed in part, and the ZBA is approved as modified and set out in Attachment 2 hereto, and the City Clerk is authorized to assign a number to the ZBA.
29The balance of the appeals with respect to the HP Case are dismissed.
ORDER – SV CASE
30The Tribunal Orders as follows.
31The appeal in respect of the Conditions of Approval of the Draft Plan of Subdivision is allowed and the modified Conditions of Approval as set out in Attachment 3 hereto are approved.
“William R. Middleton”
WILLIAM R. MIDDLETON
MEMBER
“S. Mann”
S. MANN
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.