Amico 42 Mill Ltd. v. Halton Hills (Town), 2022 CanLII 67035

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 19, 2022

CASE NO(S).: OLT-22-003701

PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: AMICO 42 MILL LTD.

Subject: Minor Variance

Description: To reduce the minimum resident parking requirement from 1.5 spaces per apartment dwelling unit to 1.4

Reference Number: D13VAR22.011H

Property Address: 26, 36, 38 42 Mill Street

Municipality/UT: Halton Hills/Halton

OLT Case No: OLT-22-003701

OLT Lead Case No: OLT-22-003701

OLT Case Name: Amico 42 Mill Ltd. v. Halton Hills (Town)

Heard: July 12, 2022 by video hearing

APPEARANCES:

Parties

AMICO 42 MILL LTD. (Applicant/Appellant)

Counsel

Jeffery Hewitt

DECISION DELIVERED ERIC S. CROWE AND P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by AMICO 42 MILL LTD. (the “Appellant”) against the decision of the Town of Halton Hills (the “Town”) Committee of Adjustment’s (the “CoA”) decision on April 6, 2022, in relation to a minor variance from Zoning By-law No. 2010-0050, as amended (the “ZBL”) concerning 26,36,38 and 42 Mill Street (the “Subject Property”).

2The Appellant is requesting permission to reduce the minimum resident parking requirement from 1.5 spaces per apartment dwelling unit (291 spaces) to permit 1.4 resident parking spaces per apartment dwelling unit (272 spaces) being a total reduction of 19 parking spaces or approximately 6.5%.

3The Subject Property has one apartment building (78 units) under construction (42 Mill) and one additional apartment building (116 units), and 14 townhome units proposed (116 apartment units and 14 townhome units combined make up Mill Landing). The minor variance applies to both 42 Mill and Mill Landing, being the entire site.

BRIEF CHRONOLOGY OF THE APPLICATION

4In 2017 the Town Council approved site-specific Official Plan (the “OP”) and ZBL amendments to allow the construction of a six (6)-storey residential apartment building containing 78 units (Building 1) on the former Memorial Arena lands. A related site plan application was approved in 2020 and the building is now under construction.

5In 2020 Council approved the second phase of the site-specific OP and ZBL amendments to allow for the development of 14 townhouse units (Building 2) and a five (5)- storey apartment building containing 116 units (Building 3) on the lands. The site plan application for these two buildings is currently under review.

6The Appellant is proposing to reduce the resident parking rate for Buildings 1 and 2 from 1.5 spaces per apartment dwelling unit (291 spaces) to 1.4 spaces per apartment dwelling unit (272 spaces). Resident parking for the proposed 14 townhome units will remain unchanged as well as the visitor parking requirement for the consolidated site.

7The application was heard on April 6, 2022, by the CoA who refused the application.

8The CoA had issues with the requested parking reduction; anticipated overflow parking (onto visitor parking and street); number of vehicles per household; existing overflow parking issues around town; disagreement with the Parking Study about the walkability of the location; and seeing the reduction as an extreme deficiency.

DECISION

9The Tribunal has carefully considered all of the evidence including documents filed as well as the submissions of the parties and is satisfied based on the submission of evidence that the four tests under s. 45(1) of the Planning Act (the “Act”) have been met by this application and that the appeal should be allowed for the reasons that follow.

THE REQUESTED VARIANCE

10Requesting relief from Zoning By-law No. 2010-0050, as amended:

1. To reduce the minimum resident parking requirement from 1.5 spaces per apartment dwelling unit (291 spaces) to permit 1.4 resident parking spaces per apartment dwelling unit (272 spaces). To accommodate resident parking for two apartment buildings (one under construction and one to be built in the future.

SITE CONTEXT

11The Subject Property is located north of Guelph Street and Mill Street intersection, bounded to the north by Dayfoot Drive, to the east by Mill Street, and to the south and west by abutting properties in the Town of Halton Hills.

LEGISLATIVE TESTS

12It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.

13Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

i. maintain the general intent and purpose of the Official Plan (the “OP”),

ii. maintain the general intent and purpose of the ZBL,

iii. are desirable for the appropriate development or use of the land, building or structure, and,

iv. are minor in nature.

EVIDENCE

14Ruth Conard is a Planner for the Town, who appeared under summons before the Tribunal to give expert testimony. After review of Ms. Conard’s professional qualifications and confirmation of her Acknowledgement of Expert Duties including her Affidavit (marked as Exhibit 4 a and b), the Tribunal qualified Ms. Conard to provide expert testimony in the field of land use planning.

15The Town of Halton Hills advised the Tribunal they would not be attending the hearing.

16Cindy Prince is Vice President of development for AMICO 42 MILL LTD. who provided background information and context for the application and not land use planning evidence. She prepared and filed the minor variance application. Her Affidavit was marked as Exhibit 5.

17Ivan Drewnitski a Transportation Planning Technologist for the Town who reviewed and supported the Parking Study appeared under summons to provide expert testimony in the field of Parking and Transportation. After review of Mr. Drewnitski’s professional qualifications and confirmation of his Acknowledgement of Expert Duties including his Affidavit (marked as Exhibit 2 a and b), the Tribunal qualified Mr. Drewnitski to provide expert testimony in the field of Parking and Transportation planning.

18Zara Georgis is a Transportation Engineer and Project Manager for LEA Consulting Ltd. (“LEA”) who prepared the latest Parking Study dated November 30, 2021, appeared under summons to provide expert testimony in the field of Parking and Transportation. After review of Ms. Georgis’s professional qualifications and confirmation of her Acknowledgement of Expert Duties including her Affidavit (marked as Exhibit 3 a and b), the Tribunal qualified Ms. Georgis to provide expert testimony in her respective field.

Town of Halton Hills Official Plan

19Ms. Conard adopted and relied upon the Planning Report within the Municipal Record (marked as Exhibit 1). Under the Town’s OP, the consolidated site is included within the boundaries of the Georgetown GO Station Secondary Plan and specifically within the Mill Street Corridor Precinct of that Plan. The site is designated High Density Residential/Community Facility Area Special Policy Area 1 (SPA1) and permits, among other things, apartment buildings.

20Halton Region had no objections to the application. Halton Region comments advised the Subject Property is designated in the 2009 Regional Official Plan (“ROP”) as being Urban Area, within a Major Transit Station Area. Section 76 of the ROP establishes that the range of permitted uses and the creation of new lots within the Urban Area will be in accordance with the applicable Local OPs and ZBLs. All development, however, shall be subject to the ROP policies in effect. Regional staff have reviewed the application and are satisfied that there are no conformity issues with the ROP. Matters of Regional interest are being addressed through the related Site Plan application and matters related to on-site parking fall within the jurisdiction of the Town.

21Ms. Conard testified this application is regarding a reduction in parking for an apartment building. In Ms. Conard’s opinion, there is nothing specific in the OP regarding parking requirements. As such, this application does not violate the OP in any way and meets its purpose and intent.

Town of Halton Hills Zoning By-law

22Ms. Conard explained under the ZBL the site is zoned High Density Residential (HDR (92)) (H18) which permits apartment buildings, among other things. The parking rate for apartment buildings as outlined in Part 5 of the ZBL requires 1.5 spaces per unit for residents plus 0.25 spaces per unit for visitors.

23Cindy Prince testified that actual sales data will assist the Tribunal in its consideration of this matter. She outlined the data as follows;

a. Apartment Building One is currently under construction. It has 73 of its 78 dwelling units sold. Amico purposely kept five dwelling units to sell upon completion of the construction. The purchasers of the 73 units have acquired 86 parking spaces which calculates to 1.17 parking spaces per apartment unit. There are currently 20 unsold parking spaces and five units still available for sale. Assuming the same 1.17 parking space demand, it is reasonable to expect that six of the 20 parking spaces will be sold. That leaves 14 parking spaces that Amico believes will not be sold in Building One, being the 42 Mill building;

b. Building Two (being Mill Landing), the second apartment building proposed for the site has 116 dwelling units of which 93 are sold and 23 remain available for sale. The 93 purchasers have acquired 99 parking spaces, so only six second parking space have been sold. Sales to date calculate into an actual demand of 1.06 parking spaces per dwelling unit in Building Two, being the Mill Landing building;

c. Even if one considers the actual parking space demand for Building One, the first apartment building, being 1.17, only 227 (1.17 by 194 dwelling units being the total number of apartment units in Buildings One and Two) parking spaces would be required when Building Two is sold out. The current zoning requirement of 1.5 parking spaces for resident parking per apartment dwelling unit results in a requirement of 291 parking spaces, resulting in 64 parking spaces more than the actual parking space sales in Building One;

d. Notwithstanding the belief that 227 parking spaces are sufficient, the minor variance application seeks relief so that 272 parking spaces, resulting in 45 more parking spaces than are believed to be required, are being provided if the variance is granted. This calculation is based on actual sales to date with 70 percent of the units in both Buildings One and Two having been sold;

e. The proposed 14 townhome units are meeting both the resident (2.0 parking spaces per dwelling unit) and visitor (0.3 spaces per dwelling unit) parking requirements in the current ZBL. The visitor parking requirements for apartment units (0.25 spaces per dwelling unit) in the current zoning are also being met.

24Ms. Prince concluded by stating if the variance is not granted and 1.5 spaces are required for apartment resident use there will be extra excavation required in an area on site that has soil concerns at a certain depth, that depth being needed to accommodate the additional 19 parking spaces. Remediating those soil concerns to provide the additional 19 parking spaces required by the current zoning, will be extremely expensive, almost double what the other parking spaces will cost to construct.

25Ms. Conard testified the application meets all other parking requirements regarding townhomes and visitor’s parking and the relief being sought is for a total reduction of 19 parking spaces. If granted there will be 272 parking spaces for 194 apartment units which would allow for 78-unit owners to acquire a second parking space if desired.

26In Ms. Conard’s opinion, the application is generally in keeping with the intent and purpose of the ZBL in that the proposal is for residential development in a residentially zoned area.

Desirable for the appropriate development and use of the land

27Ms. Georgis testified that LEA was retained by the Appellant to determine an appropriate parking requirement for the proposed residential development located at 42 Mill Street. She advised that since the completion of the Parking Study dated July 2021, and a subsequent Parking Study Update dated November 2021, the development scheme maintains the proposal for three residential buildings including one six (6)-storey apartment building containing 78 units (under construction), one five (5)-storey apartment building containing 116 units and one three (3)-storey townhouse building containing 14 townhouse units, for a total of 194 apartment units and 14 townhouse units. However, it is understood that the proposed resident parking rate has increased from 1.35 spaces per apartment dwelling unit to 1.4 spaces per apartment dwelling unit.

28Based on her review, the Subject Property is conveniently located within a multi-modal transportation network with good accessibility to the GO transit network (approximately 150 metre or a 2-minute walk to the Guelph Street and Mill Street GO bus stop). The existing pedestrian facilities, and future cycling network also supports active transportation modes in the area.

29During examination in chief, when asked by the Tribunal of CoA’s disagreement with the Parking Study about the walkability of the location, Ms. Georgis advised the Subject Property location is car dependent, however referred to section 3.1.3 of her Parking Study “Pedestrian Network.” She explained the Subject Property receives a walk score of 49/100, Car dependent, which indicates that some errands can be accomplished on foot.

30Ms. Georgis advised the Transportation Tomorrow Survey (“TTS”) is a cooperative effort by local and provincial government agencies to collect information about urban travel in Southern Ontario. To assess the future parking demand of the proposed development, she analyzed 2016 TTS data regarding vehicle ownership in the area. Through her analysis, it was seen that the vehicle ownership rate for apartment households currently residing in the area is 1.08 vehicles per unit. Therefore, this data is indicative that the provision of 1.4 spaces per apartment unit at the Subject Property is reasonable and acceptable for the neighbourhood.

31Ms. Georgis also reviewed parking sales data provided by the owner in November 2021. Through her review, 70% of the apartment units (135 units) were sold at a parking demand rate of 1.1 spaces per unit (149 spaces sold). For context, if the remaining 59 units purchased parking in accordance with the ZBL requirement, this would result in a parking demand rate of 1.22 spaces per unit. Therefore, it is her opinion that the proposed parking rate of 1.4 spaces per apartment unit will be sufficient to meet the anticipated residential parking demand.

32Moreover, she advised she has reviewed documentation that indicated unit purchasers were given the opportunity to purchase additional parking spaces, and the resultant parking demand presented above is reflective of the total parking sold. In addition, she has reviewed comparable proxy parking utilization data where the observed residential parking demand is lower than the proposed parking rate at the Subject Property. Based on parking utilization surveys conducted by LEA, the observed residential parking demand ranges from 0.68 to 1.17 spaces per unit. This averages to 0.97 spaces per unit for residential parking. Therefore, it is her opinion that the proposed supply rate of 1.4 spaces per apartment unit for the apartment building is acceptable and exceeds the observed parking demand at the proxy sites.

33Furthermore, it is Ms. Georgis’s opinion that by providing a reduced parking supply, the proposed redevelopment aims to provide for a population that is not car-dependent and will rely on alternative modes of travel for their daily needs. The recommended Transportation Demand Measures along with the parking reduction would promote and reinforce the vision of encouraging individuals to seek more sustainable methods of travel, aligning with the direction in the PPS to promote the use of active transportation and transit.

34Overall, it is Ms. Georgis’s and Ms. Conard’s opinion that the proposed parking supply will be sufficient to accommodate the proposed development. As such, the proposed reduced minimum parking rate will not have negative impact on the surrounding neighbourhoods, and their opinion that the proposed parking rate of 1.4 spaces per apartment unit is good transportation planning.

Minor in Nature

35Ms. Conard advised the application was circulated for review and comment to Town departments and external agencies. No objections were received, and no comments were received from the public as of the date of the Planning Report.

36Mr. Drewnitski testified he conducted a technical review of the application, who concluded that the findings of the submitted Parking Study adequately support the proposed parking reduction request from 1.5 to 1.4 resident parking spaces for apartment units. Mr. Drewnitski advised he agreed with the Parking Study which used a number of Transportation Planning resources/data to evaluate the parking demand which in his opinion is common practice and recognized by all Transportation planners within the Greater Toronto Area.

37Mr. Drewnitski advised the Study concludes that based on the review of the Transportation Tomorrow Survey (Neighborhood Vehicle Ownership Review), Parking Sales Data, Proxy Parking Surveys, Precedent Parking Demand and Transportation Demand Management initiatives, the parking reduction illustrates that the anticipated parking supply can be satisfactory to accommodate the estimated future parking projections.

38Mr. Drewnitski in his Affidavit advised that the Town has approved larger apartment buildings similar to the subject project, with relief from the 1.5 resident parking space requirement for apartment units.

39Based on the forgoing, in Ms. Conard’s opinion the reduction in parking being sought by this application will result in appropriate development with no adverse impacts for the site and is minor in nature.

40In conclusion, the opinion of Ms. Conard to the Tribunal was that the application has regard to provincial interest and s. 2 of the Act.

41Ms. Conard testified that the application for minor variance meets the four tests as outlined in the Planning Act.

1. the variances meet the intent and purpose of the City OP;

2. meet the intent and purpose of the City ZBL;

3. are considered to be desirable for the appropriate development or use of the property; and

4. are considered to be minor in nature.

FINDINGS AND DISPOSITION

42In determining this matter, the Tribunal accepts and adopts the uncontroverted land use planning evidence and opinion provided by Ms. Conard. The Tribunal also accepts the uncontroverted evidence and opinion of the Parking Study provided by both Mr. Drewnitski and Ms. Georgis and is persuaded by the evidence that the proposal promotes good transportation planning and is satisfied that the minor variance meet the prescript of the four-tests.

43The Tribunal finds that the variances maintain the general intent and purpose of the City OP and City ZBL with no adverse impacts, and therefore minor.

44Ms. Conard provided minimal evidence as to the proposal having regard to matters of the provincial interest and being consistent with the PPS, focusing more so on the four tests set out by s. 45(1) of the Act.

45Ms. Conard did, however, provide her summary opinion that the proposal as permitted with the variance, and as provided to this Tribunal, has regard for matters of provincial interest and that the proposal, when considered in its entirety, is consistent with relevant policies of the PPS specifically redevelopment and infill development.

46Regard has been given to the decision of the CoA and the information considered by it in the course of making its decision. The Tribunal is satisfied that the concerns raised by the CoA were given appropriate consideration and that the minor variance will not result in undue adverse impacts. The Tribunal finds the proposed reduced parking is minor and appropriate in this matter.

ORDER

47THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No. 2010-0050 is authorized to permit 1.4 resident parking spaces per apartment dwelling unit.

“Eric S. Crowe”

ERIC S. CROWE

MEMBER

“P. Tomilin”

P. TOMILIN

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.