Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 9, 2022

CASE NO(S).: OLT-22-002310 (Formerly PL080723) OLT-22-002308 (Formerly PL200469)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Millford Development Limited Subject: 2006 Official Plan for the Town of Newmarket Municipality: Town of Newmarket OLT Case No.: OLT-22-002310 Legacy Case No.: PL080723 OLT Lead Case No.: OLT-22-002310 Legacy Lead Case No.: PL080723 OLT Case Name: Millford Development Limited v. Newmarket (Town)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Milford Development Limited Subject: Request to amend the Official Plan - Failure of the Town of Newmarket to adopt the requested amendment Existing Designation: “Parks and Open Space”, “Natural Heritage System”, “Emerging Residential” and “Stable Residential” Proposed Designated: “Yonge-Davis Provincial Urban Growth Centre”, “Emerging Residential” and “Parks and Open Space” Purpose: To permit the development of a 12-storey residential building with 154 units and 38 townhouses Property Address/Description: 55 Eagle Street Municipality: Town of Newmarket Approval Authority File No.: D9-NP-11-09 OLT Case No.: OLT-22-002308 Legacy Case No.: PL200469 OLT Lead Case No.: OLT-22-002308 Legacy Lead Case No.: PL200469 OLT Case Name: Millford Development Limited v. Newmarket (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Milford Development Limited Subject: Application to amend Zoning By-law No. 2010-40 - Neglect of the Town of Newmarket to make a decision Existing Zoning: “Residential (R1-D)” and “Open Space Environmental Protection (OS-EP)” Proposed Zoning: “Urban Centre Provincial (UC-P)”, “Residential (R5-T)”, “Residential R4-CP”, “Open Space (OS-1)” and “Flood Plain and Other Natural Hazards (FP-NH)” Purpose: To permit the development of a 12-storey residential building with 154 units and 38 townhouses Property Address/Description: 55 Eagle Street Municipality: Town of Newmarket Municipality File No.: D14-NP-11-09 OLT Case No.: OLT-22-002309 Legacy Case No.: PL200470 OLT Lead Case No.: OLT-22-002308 Legacy Lead Case No.: PL200469

Heard: May 24-26, 2022 by video hearing

APPEARANCES:

Parties Town of Newmarket Millford Developments Limited

Counsel K. Mullin M. Flowers

DECISION DELIVERED BY G. BURTON AND D.S. COLBOURNE AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter was heard over three days commencing May 24, 2022. The Parties had mainly resolved the issues, and evidence was provided to support their settlement. Further evidence was directed to the single issue remaining in dispute.

Minutes of Settlement

2In preparation for this Hearing, the owner Millford Developments Limited (“Millford”) worked with the Town of Newmarket (“Town”), the Regional Municipality of York (“Region”) and the Lake Simcoe Region Conservation Authority (“LSRCA”) to resolve outstanding issues. The Parties have entered into Minutes of Settlement (“MOS”- Exhibit 5, Tab 25). The agreed-upon issues include a proposed Newmarket Official Plan Amendment No. 34 (“OPA 34” - Exhibit 7) and a proposed Zoning By-law Amendment (“ZBLA” – Exhibit 8). All of the Region’s issues were resolved, and they did not participate in the Hearing. The one issue remaining in dispute between the Town and Millford is the By-law’s parking provisions for the site.

The Property

3The Air Photo of the site (p. 2 of Exhibit 6) provides the context. The development site is on the north side of Eagle Street, approximately 120 metres (“m”) east of Yonge Street (“subject land” / “subject property”). It is rectangular, with an area of 5.09 hectares (“ha”), with a split frontage. There are two other separate parcels along the frontage, one containing a dental office and the other a medical office. Both appear to have been severed from the subject site. Continuing east, the parcel then has about 176 m of frontage. At its next corner to the east is another separated parcel used for automobile service. East of this still is a law office, then a single-family dwelling and a vacant parcel. Further east is a fairly recent townhouse development on (north-south) Appleton Court. Other than the three commercial uses along the subject’s frontage, the north side is entirely residential.

4To the west, 120 m beyond the dental office, there is a gas station and a McDonald’s, both having frontage on Yonge Street.

5The intersection of Eagle Street and Yonge Street is defined by a recently reconstructed right of way. There is a dedicated Bus Rapidway for VIVA and its stations along Yonge Street, with bike lanes and an improved pedestrian boulevard on both sides. There is also bus service along Eagle Street once each hour, connecting to VIVA at what is described as the “Eagle BRT Station”.

6The presence of the VIVA station at Eagle Street means that the area around it is within MTSA 47, and this site is mainly within the 500 m circumference as prescribed (Exhibit 7, p. 22). The area immediately to the west of this parcel is within the Yonge-Davis Urban Centre and is zoned Urban Centre in Zoning By-law 2019-06 (Ex. 7, p. 20).

7On the south side of Eagle Street, moving east from Yonge Street are three commercial properties: a service station, a dental office, then a law office at the corner of Dixon Boulevard. Continuing east beyond Donlin Avenue is a residential development at least to Appleton Court to the north. The predominant use in the area is again residential.

8The subject property is vacant. The northern portion is defined by natural heritage features associated with valleyland. There is a portion of Western Creek there, a tributary of the East Holland River. A sanitary trunk sewer traverses the site from east to west under the creek and through the valleylands. Western Creek is channelized downstream and upstream and is thus no longer in a natural state. It is these features on the north half of the property which gave rise to the appeal of the Town’s 2008 OPA, as it affected the whole of the property.

9The southern half of the subject property contains a mix of vegetation, including open meadow and treed areas. The Top of Bank limit was surveyed and accepted by LSRCA in May of 2012. A 6 m erosion access allowance was applied to the Top of Bank in accordance with the MNR Natural Hazards policy.

10This matter had commenced back in May 2008, when the 2006 Newmarket Official Plan (“OP”) was appealed by Millford with respect to the Town’s proposal to designate the subject lands as Natural Heritage on Schedule A, and as Land Use and Woodlot on Schedule B – Natural Heritage.

11In April 2011, Millford had filed an application for an OPA and ZBL to permit a 12-storey apartment building on the western portion of the site, together with 38 townhouse units. This was the subject of a public meeting at which concerns were raised over the redesignation of the Natural Heritage portion of the site, storm water management matters, traffic, and the need for an Environmental Impact Study.

12In March 2020, Millford filed an Appeal to this Tribunal due to the Town’s failure to make a decision on a further application. Previous Tribunal decisions prior to this Hearing had determined questions such as consolidation and party/participant status.

13In April 2021 Millford amended its proposal, eliminating the apartment building and seeking approval for 73 townhouses and 1 triplex. This was referred to during the Hearing as “The Concept Site Plan” (see Exhibit 7, pp. 26 and 27). The development would have parking rates of 1.20 spaces/unit, and 0.46 visitor spaces/unit. There would be a full movement access, located 57 m east of Dixon Road, and a right-in-right-out secondary access just west of Donlin Avenue. The internal road network would be privately owned and maintained by a future condominium corporation. The density is 38.5 units per hectare on a net developable area of 1.97 ha.

Matters Settled

14Settlement has been reached on matters relating to the removal of the tableland from the natural part (woodland), including its designation in the Town’s OP as “Woodlot” and part of the Natural Heritage System. This was the matter appealed in 2008 with respect to all of the subject lands at 55 Eagle Street. In support of this, the Tribunal was provided with the uncontested evidence of Ian Roul, a professional ecologist.

15Mr. Roul was retained by Millford to prepare an Environmental Impact Study (“EIS”), a complete biophysical assessment of the property. Based on a review of the provincial, regional, and local policies related to woodlands and significant woodlands, it was agreed that the removal of the portion of the tableland woodland proposed in the development application met Policy 2.2.48 of the Regional OP.

16Mr. Roul’s evidence was based on his discussions and site walks with staff of the Town and the LSRCA. It was also agreed that appropriate compensation for the removal of the tableland woodland (the development lands) was found in the LSRCA Ecological Offsetting Program. The removal of the “highly disturbed” area as suggested does not affect the protection of the natural areas. Similarly, again working with those same authorities, it was agreed that appropriate compensation for the proposed removal of the trees outside the tableland woodland (15% of the existing) was through the Town Tree Preservation, Protection, Replacement and Enhancement Policy.

17The Woodland Policy Letter provided confirms that the area to be removed for development does not meet the criteria for being “Significant” as in the Provincial Policy Statement. It will not have a negative impact on the natural features of the remaining Natural Heritage lands.

18The appropriateness of permitting a more intense form of residential development, including townhouses as well as apartment buildings, on the westerly portion of the site, has also been settled as between the Parties. The Tribunal was provided with the uncontested evidence of Allyssa Hrynyk, a well-qualified professional planner and Urban Designer, in support of the “The Concept Site Plan” proposal.

19OPA 34 (Exhibit 7) proposes to designate the northern portion of the property as Natural Heritage System, consistent with the valleyland features, and the southern portion as Residential. It also adds townhouse, back-to-back townhouse, stacked townhouse and multiplex-type buildings as permitted uses on the entirety of the southern part of the property, and up to six-storey apartment buildings on just the western third of this tableland property.

20The proposed ZBLA (Exhibit 8) applies Site-specific Exception 156 (“(H) R4-CP-156”) to the western third, and Site-Specific Exception 157 (“(H) R5 CP-157”) to the remaining two-thirds on the eastern part of the southern portion of the property. These implement the permissions related to uses for the western third as proposed in future, and the eastern two-thirds as now proposed in The Concept Site Plan.

21In addition, both Exceptions provide site-specific development standards and exceptions for the property based on the proposed development plan. There is also a Holding provision applicable to both exceptions. The ZBLA contains the requirements for removing the H provisions. These include servicing capacity, issuance of a Record of Site Condition, and an executed Site Plan Agreement.

22Ms. Hrynyk’s unchallenged planning analysis on this issue is set out on pages 2-35 of Exhibit 2. Her analysis of the removal of the tablelands is reliant upon the technical work and opinion of Mr. Roul, as well as her review of the provincial, Region’s and Town’s OP policies with respect to Heritage properties. She sets out her reasons for supporting the proposal for development of the tablelands as well. The extensive analysis on both parts of the property provides the conclusions set out on page 37. Overall, her opinion is that it represents good planning and meets all the provincial policy concerns.

In my opinion the proposed OPA and proposed ZBL, including the proposed parking rates (to be dealt with separately as the remaining issue) are consistent with PPS 2020 and are in conformity with the Growth Plan for Greater Golden Horseshoe and the York Regional Official Plan.

23Lucila Ensuncho, a civil engineer, gave uncontested evidence related to the servicing and storm water management of the site. She prepared a Functional Servicing and Stormwater Management Report (“FSR”) in support of the proposed development.

24Ms. Ensuncho’s detailed written opinion (Exhibit 2, Tab 4) was essentially a response to concerns of participants. She opined that the proposed on-site control measures described in the FSR represent commonly and widely accepted design practices for sites of similar size and character, and are effective solutions for onsite storm water management control. As well, the municipal services available along Eagle Street are adequate for the density proposed.

The Parking Rate

25The issue remaining in dispute is whether the proposed minimum parking requirement in the Millford proposal is the appropriate parking rate to be applied to the development.

26The parking rate proposed by Millford is 1.2 per unit plus .02 visitors’ spaces, for a combined maximum or 1.35 per unit. (Exhibit 2, p. 32, affidavit of Ms. Hrynyk). The total municipal requirement in the parent By-law is 1.5 per unit. The designated Urban Centre located just to the west has a variable rate, depending on unit sizes. Millford argues that since the development involves townhouses on a private road, a total of 1.4 spaces per unit is appropriate. This then is below what is required in the rest of Newmarket, 1.75, but closer to the combined rate of 1.15 for the nearby Urban Centre. There are also 60 spaces available on nearby streets. The total permitted in the draft By-law is 107 spaces, which would be 1.4 spaces per unit together with the visitor spaces. Parking would be allowed within garages, unlike the provisions of the 2010 By-law.

27The evidence in support of the Milford parking proposal was presented by Richard Pernicky, a well-qualified transportation planner. Allyssa Hrynyk’s planning opinion in support relies in part on the technical studies of Mr. Pernicky. He had carefully assessed the existing transit and other infrastructure, concluding that the proposed parking rate is more than adequate.

28Ms. Hrynyk’s opinion was that the entirety of the proposed OPA and ZBL, including parking rates, represents good planning and should be approved by the Tribunal:

given the increasingly urbanized context in which the current vacant subject property is situated, its easy access to higher order transit ……supports a compact, transit supportive urban form that will encourage walking and active transportation nodes, …supports existing transit investments along Yonge Street and reduces reliance on car travel.

29Ms. Hrynyk agrees that Section 5.3.1 of ZBL 2010-40 (para 8, pg. 56 of her affidavit) should state for clarity that the “required parking spaces shall be provided exterior to any garage unless otherwise permitted in this by-law…”. This is acceptable in this instance.

30Page 57, para. 12 of her affidavit states that in her opinion the Proposed Parking Rates represent a decrease of only about 20% from the existing parking requirements of ZBL 2010-40, a decrease of seven spaces.

31Finally, Ms. Hrynyk concluded that the proposed Parking Rates help to ensure the land is used efficiently, and that the cost of housing is reduced to provide greater level of affordability to consumers, in the midst of a housing affordability crisis in the GTA.

32In response to a comment by the Town’s witness Mr. McGill to the effect that the Conceptual Plan shows more parking spaces than the proposed rate, Ms. Hrynyk responded that if approved, it will have to be revised to reflect the final development limit and reduction of the developable land area. As such, the proposed parking shown is subject to change. Further, the proposed development will be subject to Site Plan Approval, and through that approval process there could be other changes as well.

33Mr. Pernicky had prepared the Nextrans report, a Transportation Impact Study (“TIS”) to assess the potential impact of the proposed development on the existing and future transportation network here. It addressed the access and transportation demand management (“TDM”) requirements to support the proposed residential development.

34In response to the issue of traffic flow, his opinion was that from the traffic analysis, the proposal contributes negligible delay or queues to the existing intersections and transportation work. The analysis also indicates that the proposed accesses via Eagle Street are expected to operate at acceptable levels of service with minimal delays or queues.

35With respect to the parking rates proposed, Town’s OP policy 15.5.1 identifies the need for “adequate” off-street parking and recognizes “reduced parking standards” in “areas of frequent transit service”. Based on the proximity to transit, within the area of MTSA – Eagle Station, and within walking distance of many other uses and amenities, in Mr. Pernicky’s opinion the proposed reduced parking rates are reasonable, appropriate and in keeping with the OP policy.

36Mr. Pernicky also refers to other site-specific minimum parking rates approved by the municipality for other developments (none of which appear to be as close to the Yonge corridor as the subject property).

37Finally, Mr. Pernicky concluded:

Based on all the information provided above, it is NexTrans opinion that parking management is the best Transportation Demand Management measure to encourage residents to use transit and active transportation to and from the proposed development. In our opinion, the proposed minimum parking rates in the draft zoning by-law amendment are reasonable and appropriate.

38In his reply affidavit Mr. Pernicky addresses John McGill’s criticism of the proposed rates, which simply asserts that the development is not within the Urban Centre and should not benefit from reduced rates. Mr. Pernicky continues:

in my opinion, the transportation system in the Urban Centres is designed and planned not only for the Urban Centres area itself, but also for the adjacent lands that benefit from their proximity to these transit corridors… Zoning By-law 2010-40 was adopted more than 10 years ago based on studies and standards even older than that. In my opinion, the parking rates should not be stagnant and should be reviewed frequently.

39The Town’s evidence was given by John McGill, a well-qualified transportation engineer. In his opinion By-law 2010-40’s standard of minimum parking rates is appropriate, since an undersupply of spaces can cause spillover parking on streets or block roads and driveway access. Excluding garage parking is the correct approach, as these are often used for storage instead. Mr. McGill points out that the applicant did not provide an analysis of the parking to be generated by the development, as is usual (Exhibit 2A, para. 46). The Urban Centre parking rate should not apply here, as this parcel is indeed outside the Centre, and no commitment has been made to implement even the proposed TDM measures.

40This opinion was supported by the evidence of Allan Ramsay, also a well-qualified professional planner, who had examined the entire application. In light of the settlement, Mr. Ramsay limited his testimony to the parking issue. The Town’s witnesses opine that a deficiency of 22 to 30 spaces, and 3 to 7 visitors’ spaces, is not appropriate for this development.

Findings and Conclusion

41The Tribunal agrees that planning is not static, and that issues should be reviewed frequently. This is an area in transition. In this instance the parking rates could well be reduced for this site alone, based upon it being adjacent to the Urban Centre, and given the opinion that the policies of the Urban Centre should be applicable to adjacent areas. As the Applicant asserts, at least three other sites more distant from the Urban Centre have been approved for lower rates.

42However, the very transitional nature of this area is another reason for not allowing reduced parking rates for this site, in case it creates significant issues for the predominantly single-family areas nearby.

43The Tribunal finds that the proximity argument could indeed apply to all of the lands adjoining the Urban Centre, even those located in Major Transit Station Areas further away from the MTSAs than the subject property. However, here there is little support for Mr. Pernicky’s opinion that the Urban Centre policies do or should apply to all adjacent lands with any of the attributes of Urban Centre lands. There was no helpful evidence (traffic studies, etc.) to support the rationale for the lower rates here, which in the end were only approved on two other sites. There was no utilization study prepared for this proposal. As Ms. Mullin argued, with minor adjustments the existing standard could be met, without losing density. There was also reference to enforcement problems related to current on-street parking to the south of Eagle Street across from the site.

44The Tribunal does not consider the cases submitted by the Applicant as precedents here because of the different facts.

45The Tribunal does not approve of the parking rates proposed by Millford, which could well add to these issues.

INTERIM ORDER

46Based on the evidence, the Tribunal allows the appeals in part. It approves of the Official Plan Amendment to designate the northern portion of the site consistent with valleyland features as Natural Heritage System and the southern portion as Residential.

47Similarly, the Tribunal approves of the ZBL which applies Site-Specific Exception 156 (“(H) R4-CP=156”) to the western third and Site-Specific Exception 157 (“(H) R5 CP-157”) to the remaining two-thirds on the east side of the subject property. Both exceptions are subject to a Holding provision, and the removal of the H is subject to servicing capacity, the issuance of a Record of Site Condition and an executed Site Plan Agreement.

48The provisions of section 5.3.1 of ZBL 2010-40 apply to this amendment. It will continue to read “Required parking spaces shall be provided exterior to any garage unless otherwise permitted by this By-law.” The parking rate will be 1.5 per unit.

49The Tribunal’s Final Order will issue upon receipt of the draft Official Plan Amendment and Zoning By-law Amendment.

“G. Burton”

G. burton

VICE-CHAIR

“D.S. Colbourne”

d.s. colbourne

VICE-CHAIR

Ontario Land Tribunal

Website: www.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.