Schlegel Villages Inc. v. Whitchurch-Stouffville (Town), 2022 CanLII 80225

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 1, 2022

CASE NO(S).: OLT-22-002063

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

Appellant: Schlegel Villages Inc.

Applicant: Calloway REIT – Stouffville Inc.

Subject: Zoning By-law

Description: To permit a seniors oriented mixed use development

Reference Number: BL 2021-105-ZO

Property Address: (Parts 7 & 8, Plan 65R-39641)

Municipality/UT: Whitchurch-Stouffville/York

OLT Case No.: OLT-22-002063

OLT Lead Case No.: OLT-22-002063

OLT Case Name: Schlegel Villages Inc. v. Whitchurch-Stouffville (Town)

Heard: August 15, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Schlegel Villages Inc.

J. Alati

Town of Whitchurch-Stouffville

C. Kapelos

Calloway REIT-Stouffville Inc.

D. Bronskill (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON AUGUST 15, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Schlegel Villages Inc. (the “Appellant”) is the owner of the property legally described as Parts 7 and 8 on Reference Plan 65R-39641, Town of Whitchurch-Stouffville (the “Subject Property”). The Subject Property is vacant land and located south of Hoover Park Drive and east of Highway 48, on the southwest corner of Hoover Park Drive and future Rougeview Avenue in the Town of Whitchurch-Stouffville, Regional Municipality of York.

2This matter arises from an application by the preceding owner of the Subject Property, Calloway REIT-Stouffville Inc., for a Zoning By-law Amendment to permit development of the Subject Property with senior citizen-oriented long term care and retirement homes and apartment units together with various supportive accessory uses (the “Proposed Development”).

3A Zoning By-law Amendment pertaining to the Subject Property was passed by the Town of Whitchurch-Stouffville (the “Town”) on December 7, 2021 to permit the Proposed Development; however, this Amendment included a 6.0 metre (“m”) Maximum Front Yard Setback from Hoover Park Drive for any buildings to be located on the Subject Property (the “original ZBA”). This Setback requirement was not requested and was opposed by the Appellant in both written and oral submissions to the Town Council and was not recommended by the Town’s staff to its Council. The Appellant filed an appeal of the original ZBA with the Tribunal.

4Subsequent to the appeal being filed with the Tribunal, the parties entered into discussions and agreed upon a settlement of the appeal that is being presented to the Tribunal for its consideration at today’s Hearing.

5The proposed settlement entails a modified Zoning By-law Amendment (the “modified ZBA”) that would permit the Proposed Development without the 6.0 m Maximum Front Yard Setback. In all other material aspects, the provisions of the original ZBA would be included in the requested modified ZBA.

6The Tribunal entered the Affidavit of Service of Hena Kabir sworn August 10, 2022 demonstrating timely notice of the Hearing today as Exhibit 1 in Evidence.

7No additional persons sought Party or Participant status in this matter.

8At the Hearing the Tribunal issued an oral decision approving the modified ZBA and the following is a written memorandum of that decision.

EVIDENCE

9At the Hearing, the Appellant called one witness, Glenn Wellings, who was qualified by the Tribunal to provide expert opinion land use planning evidence. The Affidavit of Mr. Wellings sworn August 5, 2022 was entered as Exhibit 2 in Evidence including the Curriculum Vitae and Acknowledgement of Expert’s Duty of Mr. Wellings attached as Exhibits A and B of that Affidavit.

10Mr. Wellings provided expert professional land use planning opinion evidence at the Hearing that the modified ZBA (substantially in the form and content set out at Exhibit J to his Affidavit) represents good land use planning and in particular provided evidence as follows:

(a) The modified ZBA has proper regard for matters of provincial interest pursuant to Section 2 of the Planning Act. Mr. Wellings opined that the Proposed Development will “efficiently utilize existing infrastructure and promote orderly development of safe and healthy communities” and “the development will contribute to a range of housing opportunities including housing for seniors and is an appropriate location of growth and development.” Mr. Wellings also opined that the Proposed Development will “promote a well-designed built form that is transit supportive.”

(b) The modified ZBA conforms with the applicable Growth Plan for the Greater Golden Horseshoe (Office Consolidation 2020) (the “Growth Plan”). In particular, Mr. Wellings opined that the Proposed Development “prioritizes intensification and optimizes the use of urban serviced lands” and “will contribute to the achievement of complete communities by providing a full range or housing options for seniors of all ages and abilities.”

(c) The modified ZBA is consistent with the Provincial Policy Statement, 2020 (the “PPS”). In particular, Mr. Wellings testified that the Proposed Development is consistent with the policies relating to ensuring the efficient use of lands and available infrastructure, promoting intensification, and supporting a range and mix of residential types including “housing for older persons.”

(d) The ZBA conforms to the Regional Municipality of York’s Official Plan (the “Regional OP”) and the Town’s Official Plan, as amended including by Official Plan Amendment 151 in force and effect pertaining to the Subject Property (the “Town OP”). In particular, Mr. Wellings testified that the Subject Property is designated “Towns and Villages” and the Regional OP supports intensification and creation of “vibrant and sustainable urban areas.” The Subject Property is located within the Secondary Plan Area (Community of Stouffville) in the Town OP. Official Plan Amendment 151 to the Town OP redesignated the Subject Property to “Hoover Park Mixed Use Area 1” to permit the Proposed Development, i.e. a seniors-oriented development consisting of a long-term care home (Phase 1) and retirement home and apartments within a mixed use development (Phases 2 and 3) with a total maximum Floor Space Index of 2.75.

11Mr. Wellings opined that the 6.0 m Maximum Front Yard Setback included in the original ZBA unnecessarily restricts the development potential of the Subject Property and would result in “development inefficiencies and an untenable design” should access be restricted to right-in, right-out only from Hoover Park Drive. Specifically, Mr. Wellings testified that this Setback would adversely impact access to the Proposed Development by precluding an internal driveway (and fire route) along the Subject Property abutting Hoover Park Drive in order to connect to a private laneway to the west of the main entrance and parking areas of the Proposed Development. Mr. Wellings opined that this Setback could prevent the configuration and design of the Proposed Development so as to deliver the optimum “continuum of care” to its future senior citizen residents and, as such, this Setback does not represent good land use planning. Mr. Wellings opined that the modified ZBA, with its exclusion of the 6.0 m (or any) Maximum Front Yard Setback, represents good land use planning.

FINDINGS

12Upon consideration of the Affidavit of Evidence (Exhibit 2) and oral evidence of Mr. Wellings, all of which was uncontroverted, the Tribunal finds that the modified ZBA is consistent with the PPS, conforms with the Growth Plan, the Regional OP and the Town OP, and constitutes good land use planning. In this regard, the Tribunal has had regard for the matters of provincial interest set out in Section 2 of the Planning Act, as well as the decision of the Town’s Council with respect to the Proposed Development.

ORDER

13THE TRIBUNAL ORDERS that the appeal is allowed, in part, and the Town of Whitchurch-Souffville Zoning By-law No. 2010-001-ZO, as amended, is hereby amended in the manner set out in Schedule A to this Order. The Tribunal authorizes the municipal clerk to format and assign such numbers to this instrument as may be necessary for the Town’s record keeping purposes.

“D. Arnold”

D. ARNOLD

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.

Schedule A

THE CORPORATION OF THE TOWN OF WHITCHURCH-STOUFFVILLE

BY-LAW NUMBER 2021-105-ZO

BEING A BY-LAW to amend By-law 2010-001-ZO of the Town of Whitchurch-Stouffville (Comprehensive Zoning By-law) for the lands 65R-39641 Parts 7 and 8

WHEREAS Section 34 of the Planning Act, R.S.O. 1990, c.P.13, as amended, (the “Planning Act”) permits the Approval Authority to pass zoning by-laws for prohibiting the use of land, or the erecting, locating or using of buildings or structures for, or except for such purposes as may be set out in the by-law; and

WHEREAS Section 36 of the Planning Act permits the Approval Authority, in a by-law passed under Section 34 of the Planning Act by the use of the holding symbol “h” in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law.

NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF WHITCHURCH-STOUFFVILLE ENACTS AS FOLLOWS:

1. That Comprehensive Zoning By-law No. 2010-001-ZO is hereby amended as follows;

(a) By amending Section 2, sub section 2.8.5.2, h-2 Zone, to add Conditions for Removing the Holding Symbol (h-2) under h-2 Zone, as set out in Schedule 1 to this By-law; and

(b) By amending Schedule 55 to rezone the lands shown as ‘Phase 1’ on Schedule 2 to this By-law from Employment Business Park Exception One Holding Symbol Three [EPB(1)(h-3)] and Employment Light Exception Two Holding Symbol One [EL(2)(h-1)] to Commercial Residential Mixed - Western Approach Exception Thirteen [CM2(13)], as set out on Schedule 2 to this By-law; and

(c) By amending Schedule 55 to rezone the lands shown as ‘Phase 2’ on Schedule 2 to this By-law from General Commercial Exception Two [CG(2)] and Employment Light Exception Two Holding Symbol One [EL(2)(h-1)] to Commercial Residential Mixed - Western Approach Exception Thirteen Holding Symbol Two [CM2(13) (h-2)], as set out on Schedule 2 to this By-law; and

(d) By amending Schedule 55 to rezone the lands shown as ‘Phase 3’ on Schedule 2 to this By-law from General Commercial Exception Two [CG(2)] to Commercial Residential Mixed - Western Approach Exception Thirteen Holding Symbol Two [CM2(13) (h-2)], as set out on Schedule 2 to this By-law; and

(e) By amending Section 6.4.5 (Exceptions to the CM2 Zone) by adding a new Exception, being section 6.4.5.13 as set out in Schedule 3 to this By-law.

(f) By amending Section 3.40.xii (Exceptions to Height Requirements) by adding a new Exception, being section 6.4.5.13 as set out in Schedule 3 to this By-law.

2. That this By-law shall come into force in accordance with Section 34 of the Planning Act, as amended.

SCHEDULE 1 TO THE BY-LAW 2021-105-ZO

2.8.5.2

h-2 zone

Conditions for Removing the Holding Symbol (h-2)

i) Provision of Sanitary capacity, subject to the satisfaction of the Town Engineer

ii) Appropriate access and traffic mitigation requirements be provided in accordance with the findings of a Traffic Impact Study, subject to the satisfaction of the Town Engineer

iii) Parking will be provided in accordance with the findings of a Parking Study required, subject to the satisfaction of the Town Engineer

SCHEDULE 2 TO THE BY-LAW 2021-105-ZO

SCHEDULE 3 TO THE BY-LAW 2021-105-ZO

6.4.5.13 CM2(13)(h-2) 65R-39641 Parts 7 and 8 Schedule 55

CM2(13) 65R-39641 Parts 7 and 8 Schedule 55

1. Permitted Uses

A. Notwithstanding Section 6.1 of the By-law, only the following uses shall be permitted on Phase 1 of the subject lands:

i) Long Term Care Facility

Notwithstanding Section 6.1 of the By-law, only the following uses shall be permitted on Phases 2 and 3 of the subject lands:

ii) Apartment Building

iii) Dwelling Unit above a Commercial Use

iv) Senior Citizens’ Home

B. The only accessory uses permitted on the subject lands shall be:

i) Animal Grooming Centre

ii) Assembly Hall

iii) Business Services

iv) Clinic

v) Convenience Store

vi) Day Care Centre*

vii) Dementia Adult Day Program

viii) Dry Cleaning Establishment

ix) Financial Institution

x) Fitness and Recreation Facilities

xi) Library

xii) Living Classroom

xiii) Medical Office

xiv) Office

xv) Place of Worship

xvi) Personal Service Establishment

xvii) Pharmacy

xviii) Research and Development Establishment

xix) Restaurant

xx) Seniors Community and Resource Centre

xxi) Service Establishment

xxii) Studio

*Day Care Centre is only for children of the immediate staff on the premises

2. Definitions

“Dementia Adult Day Program” shall mean a day program and care services provided for adults living with dementia.

“Living Classroom” shall mean a place that provides an in-situ learning platform that integrates theoretical and practical education and training for health care workers in the gerontological field.

3. Regulations

Notwithstanding Section 6.2 of the By-law, only the following regulations shall apply:

For the purposes of this zone, the Front Yard is Hoover Park Drive

i) Minimum Front Yard 3.0 metres

ii) Minimum Side Yard (easterly) 3.0 metres

iii) Minimum Side Yard (westerly): 3.0 metres

iv) Minimum Rear Yard (southerly): 3.0 metres

v) Maximum FSI: 2.75

vi) Maximum Building Height 48.0 metres

vii) Minimum Landscaped area between streets and parking areas or driveways 3.0 metres

viii) Minimum Landscaped Area 3.0 metres

ix) Minimum Indoor Amenity Area for 2.0 square metres Apartment Buildings containing 18 /apartment unit Dwelling Units or More

Notwithstanding Section 3.40.xii of the By-law, the following regulation shall apply:

i) elevator or stairwell enclosures and rooftop mechanical equipment, provided it does not exceed 6.0m in height.

4. Qualifying Notes to Regulations

(1) For the purposes of this By-law, the maximum building height shall not include any mechanical penthouse, service rooms, service/mechanical equipment, screens, rooftop solar panels, stairwell enclosure accessing the rooftop area and any associated structure.

5. Special Regulation

(1) Walkways

(a) Direct walkway access to the public sidewalk shall be provided for buildings abutting all public right-of-ways and internal drive aisles. Walkways shall be a minimum 1.5 metres in width.

(b) A continuous network of walkways shall provide for on-site pedestrian circulation with adequate connections with parking lots, public sidewalks and other buildings on site.

6. Application

(1) Despite any existing or future severance, partition, or division of the lot, the provisions of this By-law shall apply to the whole lot as if no severance, partition or division occurred.