Bhattacharya v. Brampton (City), 2022 CanLII 95943

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 13, 2022

CASE NO(S).: OLT-22-003768

PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Dwijendra Bhattacharya

Applicant: Blackthorn Development Corp.

Subject: Proposed Official Plan Amendment

Description: Development of the subject property for a mixed-use development.

Reference Number: OP2006-213

Property Address: 30 McLaughlin Road South

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-22-003768

OLT Lead Case No.: OLT-22-003768

OLT Case Name: Bhattacharya v. Brampton (City)

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

Appellant: Dwijendra Bhattacharya

Applicant: Blackthorn Development Corp.

Subject: Zoning By-law

Reference Number: BL 63-2022

Property Address: 30 McLaughlin Road South

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-22-003769

OLT Lead Case No.: OLT-22-003768

Heard: September 14-16, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Dwijendra Bhattacharya	Self-Represented
City of Brampton	Matthew Rea
2706376 Ontario Inc.	Samantha Lampert
Gus Margou	Self-Represented

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision relates to the hearing of appeals by Dwijendra Bhattacharya (“Appellant”) pursuant to s. 17(24) and s. 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) regarding a decision by the City of Brampton (“City”) to approve amendments to its Official Plan (“OP”) and Zoning By-law No. 270-2004 in relation to the property known municipally as 30 McLaughlin Road South, in the City (“Subject Property”). The application for amendments were made by the owner of the Subject Property, 2706376 Ontario Inc. (“Applicant”).

SUBJECT PROPERTY

2The Subject Property has a total area of approximately 7,345.2 square metres with frontage of approximately 65 metres on McLaughlin Road South and 81 metres on Bufford Drive.

3The Subject Property is currently vacant, save and except for a single detached dwelling, which is designated under Part IV of the Ontario Heritage Act. The Subject Property contains the remnants of a previously existing apple orchard.

4To the north of the Subject Property are existing commercial uses. To the south are existing residential uses, including single detached dwellings along Bufford Drive, and some institutional uses. The area to the east of the Subject Property contains Fletcher’s Creek with existing residential uses beyond the Creek. To the west is McLaughlin Road South with existing recreational and institutional uses beyond the Road.

5The majority of the Subject Property is designated “Residential” on Schedule “A” of the OP with a small portion designated “Open Space” and “Central Area”. On Schedule A2 of the OP, the Subject Property is also designated “Convenience Retail”.

6The Subject Property is part of the Brampton South Secondary Plan (“Brampton Plan”) and is designated “Service Commercial”, “Residential Low Density” and “Park and Open Space”.

7The zoning on the Subject Property is “Service Commercial – Special Section 2524” and “Open Space”. The “Service Commercial” zone permits a variety of commercial uses, including a residential dwelling contained within a designated heritage building.

PROPOSAL, PROPOSED AMENDMENTS AND LEGISLATIVE TESTS

8The applications were submitted by the Applicant to facilitate the development of an eight-storey, mixed-use apartment building containing approximately 109 residential units, 250 metres of commercial floor area at ground level, 165 vehicular parking spaces, 129 bicycle parking spaces and the relocation of the heritage building from the rear of the Subject Property to a more prominent location adjacent to McLaughlin Road South (“Proposed Development”).

9The Official Plan Amendment (“OPA”), attached as Schedule “A” to this Decision, proposes to delete the Subject Property from Schedule A2 of the OP, which currently designates the Subject Property as “Convenience Retail”. The OPA further proposes to remove the Subject Property from the former Brampton Plan and add it to the Brampton Flowertown Secondary Plan (“Flowertown Plan”) with a new “Residential / Commercial Mixed Use” designation within an existing built-up area of the City. In relation to the Proposed Development, the OPA proposes to establish a maximum height of eight-storeys, establish a maximum of 120 residential units, establish a maximum density of 200 units per net hectare and establish a Floor Space Index (“FSI”) of 2.0.

10The Zoning By-law Amendment (“ZBA”), attached as Schedule “B” to this Decision, proposes to rezone the Subject Property to an “R4A” Zone. There are also site-specific amendments to permit the Proposed Development including the relocation of the heritage dwelling, permitting some commercial uses while prohibiting other commercial uses, reducing parking requirements, establishing maximum building height, establishing setbacks and increasing FSI.

11On April 6, 2022, City Council adopted By-law No. 62-2022 (OP2006-213) and By-law No. 63-2022 (Zoning). On April 28, 2022, the Appellant appealed the approvals to the Tribunal.

12In considering the appeals, the Tribunal must have regard for matters of provincial interest as well as the decision made by City council and the information considered by council in the course of making that decision.

13Further, the Tribunal’s Decision on the OPA and ZBA must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The OPA must conform with the County of Peel Official Plan (“Peel OP”) and the ZBA must conform with the OP and Flowertown Plan.

PRELIMINARY MATTERS

14As this was the first and only hearing event scheduled, the Tribunal confirmed that proper Notice was given and marked the Affidavit of Service of Notice as Exhibit 1 to the proceeding.

15In advance of the hearing, the Tribunal received six written requests for participant status (Exhibit 3) from:

i. Chat Ramkumar

ii. Fernando and Rosa Nogueira

iii. Helen Lavado

iv. Monica Singh

v. Renata Macherzynska

vi. Sohan, Pushpa and Bheem Chouhan

On consent of the parties, the Tribunal granted each of the requests for participant status. The participant request statements raise traffic, neighbourhood safety, emergency vehicle access and environmental impact concerns which were addressed during the course of the hearing.

16In advance of the hearing, the Tribunal received three written requests for party status (Exhibit 2) from (1) the Applicant, (2) Gus Margou, and (3) Lucy Clayton. Each of these requests is addressed below.

17The Tribunal heard submissions from counsel for the Applicant. Given the obvious impact any Tribunal decision will have on the Applicant the party request of the Applicant was granted by the Tribunal without objection from the parties.

18Mr. Margou participated in the City’s public consultation process and is a long-time resident in the neighbourhood. Mr. Margou submitted that he did not intend to call experts or other witnesses during the hearing, however, he did intend to refer to the reports prepared by the experts and cross-examine the experts put forward by the City and the Applicant. The City and the Applicant asked Mr. Margou to confirm that he would not be referring to any new documents but would solely rely on documents pre-filed by all parties prior to the hearing. Mr. Margou confirmed that he would not present any new documents. With this clarity, there were no objections raised by the City nor the Applicant. Given Mr. Margou’s proximity to the Subject Property, participation in the public process and intention to participate fully, the Tribunal found that Mr. Margou’s participation will assist the Tribunal in adjudicating the appeal effectively and completely. On consent of the parties, the Tribunal granted Mr. Margou party status.

19The Tribunal received a request for party status from Ms. Clayton, however, Ms. Clayton was not present at the hearing. The Notice states that status requests will be considered and determined at the hearing and that attendance by the requestor is required (emphasis added), The role of a party is to fully participate in the hearing, including being in attendance for each day of the hearing. Ms. Clayton did not attend the hearing and as such, the Tribunal denied Ms. Clayton’s request for party status.

20The Tribunal specifically noted that as a non-appellant party, the involvement of added parties in the hearing is conditional upon, and subject to, Rule 8.3 in the Ontario Land Tribunal’s Rules of Practice and Procedure, which states:

8.3 Non-Appellant Party A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) or 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering under an issue raised in an appeal by an appellant party and may participate fully in the proceeding to the extent that the issue remains in dispute. A non-appellant party has no independent status to continue an appeal should that appeal be withdrawn by an appellant party.

HEARING

21At the commencement of the hearing, the Tribunal heard contextual non-opinion evidence from Maurizio Rogato, a Land Use Planner retained by the Applicant.

22Throughout the course of the hearing, the Tribunal heard oral submissions from the Appellant, Mr. Margou, counsel for the City and counsel for the Applicant, all of whom referenced a comprehensive Joint Document Book filed by the City and Applicant, which was entered into the record as Exhibit 4.

23Oral opinion evidence was heard from the following affirmed experts, all of whom were qualified without objection:

For the Applicant:

• Maurizio Rogato, Registered Professional Planner, qualified in land use planning; and,

• Casey Ge, Professional Engineer, qualified in traffic and transportation engineering.

For the City:

• Angelo Ambrico, Registered Professional Planner, qualified in land use planning; and,

• Scott McIntyre, Certified Engineering Technologist, qualified in transportation planning.

24While a variety of issues were raised during the course of the hearing, the focus of submissions and evidence were on matters relating to traffic, parking, shadowing and safety in light of the additional residents and vehicles which the Proposed Development would bring to the neighbourhood.

25The Tribunal notes that neither the Appellant nor Mr. Margou called any witnesses nor proffered any independent and objective evidence to support the arguments that they raised. Mr. Margou offered his own opinions and observations which were in opposition to both the conclusions drawn by the planning and transportation experts and the technical studies which were before the Tribunal. There were no competing studies produced nor objective evidence offered by the Appellant or Mr. Margou to convince the Tribunal that the independent and objective studies and opinions relied upon by the City and the Applicant were flawed.

Position of the Appellant and Mr. Margou

26The Appellant and Mr. Margou were aligned in the position that the appeal should be allowed.

27Mr. Margou argued that the expert opinions before the Tribunal were “just opinions” and that his experience living in the neighbourhood is the best expert opinion that will be provided during the hearing.

28In his appeal letter, the Appellant identified concerns related to the proposed access to the Subject Property off Bufford Drive, traffic congestion, traffic safety, shadowing and loss of privacy.

29The Appellant submitted that he does not support the Proposed Development and does not want an access point off Bufford Drive. The Tribunal heard evidence from the Appellant with respect to a prior decision of the Ontario Municipal Board in 2018 with respect to the Subject Property (“2018 OMB decision”). That decision was a settlement between the previous owner/applicant and the Appellant which resulted in the proposed access off Bufford Drive being eliminated. The Appellant argued that nothing has changed since 2018 and the 2018 OMB decision should not have been overturned. He submitted that the Tribunal should “re-instate” the 2018 OMB decision and not allow access to the Subject Property off Bufford Drive.

30The Appellant conceded that he understood that the subject matter of the current hearing relates to different planning instruments than those in the 2018 OMB decision. He also acknowledged that the 2018 OMB decision related to a settlement where no traffic or transportation evidence was presented or tested. The Appellant confirmed that he wrote a letter to the City in 2017 (Exhibit 4, Tab 47) noting that a future development may have a concept for the Subject Property that would require additional access and that it would be reviewed based on the planning and technical merits at that time.

31Mr. Margou submitted that the neighbours are not opposed to development but want to ensure that any development makes sense and fits the current environment. He focussed on the 2018 OMB decision to stress that any development should be limited to low rise and low density commercial or residential development which would be an appropriate fit within the existing neighbourhood.

32Mr. Margou submitted that he canvassed the area surrounding the Subject Property and did not find any other example where an apartment building of comparable size to the Proposed Development had one main entrance off a small side street, like Bufford Drive. He argued that a building of this size should have 2 full moves accesses (described further below) and that having only 1 full moves access located on a side road is a “recipe for accidents”.

33The Appellant and Mr. Margou argued that the City did not consider the concerns of the residents when approving the applications. Mr. Margou submitted that the City did the “bare minimum” and a poor job of involving the residents. He noted that the entire neighbourhood will be affected by the Proposed Development, yet only residents within a 240-metre radius of the Subject Property received notice of the applications. He advised that he lives approximately 300 metres from the Subject Property and did not receive a notice.

34Mr. Margou further argued that many of the residents that did receive the notice do not speak nor read English and consequently, did not know what the notice was for. He argued that the City is aware that language barriers exist and did not follow up with residents after sending the notice. Mr. Margou conceded that the Act requires notice to be given to those within a 120-metre radius but maintained that the City did not do enough because the neighbourhood is small and the City should have gone beyond what is normally required.

35Mr. Margou submitted that, following the statutory public meeting, the residents requested a further meeting with the City which did not come to fruition. He suggested that this is further evidence that the City did not do enough and residents did not have a proper opportunity to voice their concerns and work with City planners. The neighbours raised concerns with the Proposed Development creating a wide-spread shadow problem, traffic congestion and traffic safety all of which were disregarded by the City. The Appellant also noted that the City’s disregard for the well being of the existing neighbourhood residents left him with no choice but to appeal the OPA and ZBA to the Tribunal.

36The Appellant agreed that he participated in the public process and submitted that City Council’s job is to work with residents and do what the residents want. When asked by the City, the Appellant agreed that the concerns that he raised relate to existing conditions - they do not relate to the Proposed Development.

37In his oral submissions, Mr. Margou emphasized concerns related to safe access for emergency vehicles. He submitted that the additional residents generated by the Proposed Development would result in more cars parking on neighbourhood streets. Mr. Margou asserted that one of the impacts of the additional street parking would be that emergency vehicles, buses and garbage trucks will not have safe access to the neighbourhood. He argued that safety is a secondary concern to developers and planners.

38Mr. Margou submitted that the Proposed Development will increase the existing traffic on McLaughlin Road South. When confronted with the added volume of traffic on McLaughlin Road South, he argued that drivers will use Corona Gate as a cut through to access their dwellings and the Proposed Development more quickly. He further submitted that speeding on these residential streets is an existing problem which he anticipates will get worse.

39Mr. Margou referred to Mr. McIntyre’s affidavit which notes that the ZBA would not be approved unless the parking in the Proposed Development met zoning requirements and he submitted that it does not. Mr. Margou referred to the parent parking by-law and argued that there is not enough resident parking provided in the Proposed Development. He determined that the result will be increased street parking in the neighbourhood. He argued that the installation of no parking signs will not rectify the issue as the signs will either be ignored or result in cars being pushed further down the street where parking is permitted.

40Mr. Margou submitted that the City did not consider potential future developments which will impact their neighbourhood. He noted that low rise residential is more appropriate for the area. Mr. Margou referred to a potential townhome development which he argued the City did not consider, and should have, when approving the applications. Further, Mr. Margou argued that low rise developments will contribute to the housing types that are required by the Growth Plan and the Applicant should consider that type of housing instead of the Proposed Development.

41Mr. Margou raised concerns with shadows that would be generated by the Proposed Development. He referred to the shadow study (Exhibit 4, Tab 21) submitted by the Applicant and noted that the Proposed Development will create a considerable shadow for the surrounding commercial buildings and the neighbourhood dwellings. He noted that some residents will no longer be able to see the sunset, and this will affect their quality of life.

42Mr. Margou emphasized that he is not opposed to development, however development must make sense and what makes sense on the Subject Property is low rise, low density residential or commercial.

Position of the City and the Applicant

43The City and the Applicant were aligned in the position that the appeal should be dismissed and the OPA and ZBA be approved.

44The Applicant submitted that the Proposed Development replaces an underutilized and largely vacant parcel of land with appropriate intensification that respects the existing residential neighbourhood. The Applicant argued that the submissions of the Appellant and Mr. Margou lack any analysis and simply make suggestions without any planning or technical basis. The Applicant asserted that the Tribunal must make its decision based on tested information, expert opinions and evidence. The Applicant requested that the Tribunal accept the evidence of the four experts who came to the unanimous conclusion that the Proposed Development is appropriate intensification and represents good planning in the public interest.

45The City submitted that the applications were subject to an extensive planning process and that the concerns of the residents, including the Appellant, Mr. Margou and the participants, are not supported by the experts or the technical data that was received as part of the planning process. The City noted that it is significant that Council agreed with City staff’s conclusion that the Proposed Development represents good planning and approved the OPA and ZBA despite community pressure against the applications. The City argues that the Appellant and Mr. Margou chose to ignore carefully considered staff recommendations and proceeded to a hearing without any expert evidence to support their claims. The objective expert evidence demonstrates that the Proposed Development is consistent with the PPS, conforms with the Growth Plan, Peel OP and OP and represents an appropriate density and layout for the Subject Property with no adverse impacts to the surrounding residents.

46The Applicant submitted that the 2018 OMB decision is irrelevant to the hearing for several reasons. In particular, the 2018 OMB decision related to a settlement and as such, there was no testing of evidence. Further, s. 2.1 of the Act states that the Tribunal’s Decision shall have regard for decisions made by Council or an approval authority that relate to the same planning matter. In this case, the 2018 OMB decision relates to a different planning matter with a different applicant / owner and is not binding. The City agreed and submitted that the 2018 OMB decision related to an application that was materially different than that before the Tribunal in this appeal. That said, the City maintained that the Tribunal’s jurisdiction is limited to the instruments that are currently before it.

47Mr. McIntyre testified that City guidelines require buildings with an excess of 80 units to have a secondary access point. Pursuant to these guidelines, the Proposed Development contains 109 units and requires a secondary access point. The Applicant and the City submit that this secondary access can only be located on Bufford Drive and must be a full moves access which, as the name suggests, allows full movement. Ms. Ge testified that the Proposed Development has limited frontage on McLaughlin Road South resulting in the access being limited to a right in, right out rather than a full moves. Ms. Ge opined that the limited access on McLaughlin Road South is beneficial in providing emergency access to the site but cannot be a full moves access as it would infringe on the functional area of the existing intersection at McLaughlin Road South and Bufford Drive.

48The City noted that the Appellant and Mr. Margou agree that it is important to have two access points in an emergency scenario. Mr. Rogato testified that the access on Bufford Drive was shifted west to avoid locating the entrance directly adjacent to a residential driveway. The relocation of the full moves access was in response to comments received from the City, and as pointed out by Ms. Ge, is intended to be primarily for residential vehicles.

49The City argued that the proper planning process, including public consultation, was followed in considering the applications. The City followed an extensive public consultation process which included a number of public meetings attended by residents and members of the public. The City submitted that Council disagreeing with the Appellant, Mr. Margou and some of the residents does not mean that Council was ignoring the public or made the wrong decision. Rather, Council balanced input received from the public with technical studies submitted by the Applicant and input received from City staff. After considering the information before it, Council voted in order to render a decision on the applications.

50The City responded to Mr. Margou’s concerns that the City did the “bare minimum” in terms of notifying the public about the applications. The Act requires notice to be sent to those within a 120-metre radius, and the City’s practice is to double that and provide notice to residents within a 240-metre radius. The City argued that the expanded notice demonstrates that the City goes beyond the minimum requirements mandated by the Act.

51In response to Mr. Margou’s assertion that the City does not adequately or meaningfully address language barriers faced by some residents, Mr. Ambrico testified that the notice issued by the City uses graphics and mapping for this reason. He explained that notices contain graphics and maps to assist residents in understanding what the subject matter contained in the notice is referring to. Mr. Ambrico further testified that the notice provides phone numbers and a link to the City’s 311 number which provides translation services and assistance to those that have questions.

52Mr. McIntyre responded to Mr. Margou’s concerns about emergency vehicle access and street parking. He opined that Bufford Drive was built to City standards that were in effect at the time and emergency vehicles are currently able to maneuver on the street. He did note that emergency vehicles are not mandated to stay in appropriate lanes and could use the McLaughlin Road South access if required. Mr. McIntyre testified that street parking is a reactive as opposed to proactive process. This means that any issues arising currently or in the future with street parking can be raised with the City by residents, or anyone having concerns.

53The Applicant submitted that traffic concerns raised by the Appellant and Mr. Margou are existing conditions and neither provided any planning or technical support to demonstrate how the Proposed Development would make the current situation worse. Ms. Ge reviewed the traffic studies with the Tribunal and the process undertaken in preparing these reports. In this case, terms of reference were received from the City and 2016 traffic data was collected from Peel Region. Ms. Ge explained that due to the studies being conducted during the Covid lockdown, current data could not be collected. Growth rates were applied to the 2016 traffic data to arrive at 2020 traffic conditions. Ms. Ge pointed out that data after the lockdown is lower than data prior to the lockdown and as such, the numbers produced in the reports were more conservative than new data would have been.

54The traffic studies showed that the Level of Service (“LOS”) currently operating at the intersection of McLaughlin Road South and Bufford Drive is LOS “E” and the Proposed Development will not change the LOS. In cross-examination, Mr. Margou asked both Ms. Ge and Mr. Rogato about traffic impacts on the current and future LOS. Ms. Ge replied that there will be little change resulting from the Proposed Development since vehicles will leave and return to the Subject Property at different times throughout the day. Mr. Rogato replied that the Proposed Development will generate traffic, however, he opined that good land use planning attempts to introduce other modes of transportation. The Subject Property is directly accessible to transit which leads to higher order transit and Mr. Rogato opined that this represents a good land use planning approach. Both Ms. Ge and Mr. McIntyre opined that the road network would not be compromised, and the intersections will continue to operate at acceptable LOS.

55Mr. McIntyre testified that LOS is a qualitative measure that illustrates traffic habits based on travel time, delay, safety and speed. He opined that the intersection of McLaughlin Road South and Bufford Drive operates at LOS “E” due to some delay and volume capacity. He testified that delays are related to traffic signal timing and are currently negligible however, if delays increase, the signal timing can be adjusted by the City when and if necessary.

56Mr. McIntyre testified that one of the mitigating measures requested by the City was that the Applicant add a left turn lane on Bufford Drive to separate vehicles wanting to turn left from those wanting to turn right. Ms. Ge explained that currently the queue on Bufford Drive is one car length and a conservative estimate following the Proposed Development with the addition of the left turn lane is that it would increase to a two-car length queue. Further, the signal at the intersection of McLaughlin Road South and Bufford Drive allows vehicles to be constantly travelling thereby avoiding additional cars in the queue. Mr. McIntyre opined that he agrees with Ms. Ge’s conclusion that the maximum queue will be two car lengths which will not increase traffic nor congestion on Bufford Drive.

57Ms. Ge submitted that the traffic concerns of the Appellant and Mr. Margou relate to existing conditions and consequently, will remain after the Proposed Development is constructed. However, she opined that the Proposed Development will not add any additional traffic safety concerns on Bufford Drive. Ms. Ge noted that Mr. Margou’s testimony indicating that the number of vehicles in the neighbourhood will double because of the Proposed Development is untrue. She opined that one cannot analyze traffic studies based on subjective sentiments and relying on the evidence demonstrates that the Proposed Development will not generate the volume of traffic that Mr. Margou has claimed.

58When the applications were submitted to the City, Mr. McIntyre reviewed the traffic studies and they were amended and updated by the Applicant throughout the process to respond to City and agency comments. Mr. McIntyre testified that there will be further reviews as the Proposed Development goes through the site plan stage, but for the purposes of a re-zoning, he is satisfied with the current traffic studies.

59The City submitted that Mr. Margou’s argument on the use of Corona Gate as a “cut through” when there was traffic on McLaughlin Road South is unfounded. Mr. McIntyre opined that infiltration onto Corona Gate was unlikely because the use of a signalized intersection is more efficient, even with a volume of traffic. Regardless Mr. McIntyre testified, and Mr. Margou acknowledged in cross-examination, that Corona Gate is a public street that all vehicles have a right to make use of.

60Regarding traffic safety, the City argued that speeding concerns of the Appellant and Mr. Margou are enforcement issues and outside of the jurisdiction of the Tribunal. However, the City did submit that radar speed studies have been performed and demonstrated that the majority of vehicles in the area travelled below the posted speed limit. Nonetheless, the City submitted that there is a road watch process that residents can pursue with any speed concerns and that process, as opposed to this appeal, would be the proper forum to address these safety concerns.

61Although there was some confusion regarding the number of parking spaces required for the Proposed Development, the City and the Applicant submitted that the overall parking requirements have been met. Ms. Ge testified that through the site plan application process, the optimal split between visitor, tenant and commercial parking will be determined. Mr. Rogato confirmed that currently the Zoning By-law requires 183 spaces for a building the size of the Proposed Development and the proposal provides for 165 total spaces. On cross-examination, Mr. Rogato agreed that the Proposed Development does not meet the current parking standard but maintained that the parking reduction proposed will provide sufficient parking.

62This adequacy of parking was clarified by Mr. Ambrico during his oral testimony. He explained that the City has been exploring ways to reduce minimum parking requirements in an effort to reduce reliance on vehicles. The current in effect Zoning By-law was approved in December 2020, however, the applications were submitted prior to this approval and consequently used the former parking standards. The current overall parking requirements for the City, with the exception of special areas which do not apply to the Subject Property, require the Proposed Development to contain a total of 142 parking spaces (not 183 as Mr. Rogato testified). The Proposed Development will contain a total of 165 parking spaces. Mr. Ambrico confirmed that the applications and the parking standards in the ZBA mirror the current in effect parking regulations of the City and are not only sufficient, but exceed the number required.

63Mr. Ambrico referred to Mr. Margou’s testimony regarding a potential townhome development proposed in the area. He testified that approximately three years ago City staff did enter a pre-consultation meeting with a developer for this townhome development. However, he explained that the City generally requires a formal application to be submitted by a developer within 1 year of a pre-consultation meeting. Consequently, Mr. Ambrico advised that the townhome development Mr. Margou referred to is not an active application and has no impact on the applications that were before the City nor does it have any impact on this appeal.

64Mr. Rogato reviewed a number of studies with the Tribunal, including the Sun Shadow Study. In his review, Mr. Rogato concluded that shadowing would be minimal and that many of the rear residential yards are currently in shadow from existing dwellings. In cross-examination, Mr. Rogato explained that he concurred with the conclusions drawn in the study that shadowing caused by the Proposed Development is minimal because in an urban context the shadows are not significant. The existing residential dwellings are currently experiencing shadowing and the commercial buildings that will encounter some shadows from the Proposed Development are not considered sensitive uses. As such, Mr. Rogato opined that the shadow impacts are minimal.

Legislative Tests

65Mr. Rogato and Mr. Ambrico both reviewed the legislative tests relating to appeals of an OPA and ZBA and independently determined that the tests were satisfied. The Applicant submitted that neither the Appellant nor Mr. Margou raised any issues of consistency or conformity with any legislation.

66Mr. Rogato and Mr. Ambrico opined that the OPA and ZBA have regard to matters of Provincial interest. Mr. Rogato went through a number of policies with the Tribunal, including the conservation of cultural interests being met through the relocation and adaptive reuse of the existing heritage building. Mr. Rogato also noted that the Subject Property is located close to transit and is in the Built-Up Area adjacent to the Urban Growth Centre which are the focus for intensification.

67The planners both held the opinions that the OPA and ZBA are consistent with the goals, objectives and policies of the PPS. Mr. Rogato testified that the Proposed Development is compatible with the existing neighbourhood while providing a range and mix of housing options. In his opinion, the Proposed Development represents a moderate form of intensification on a currently vacant and underutilized site. Existing public services, such as water services, can accommodate the expected demand produced by the Proposed Development.

68Mr. Ambrico emphasized Policy 1.4.3 of the PPS which contains mandatory language that “planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area…” Mr. Ambrico opined that the Proposed Development represents an appropriate level of intensification and will contribute to the City’s housing stock.

69It is Mr. Rogato’s opinion that the OPA and ZBA conform to the policies and objectives of the Growth Plan. The Subject Property is an appropriate location for intensification and will contribute to a complete community by providing housing options that will be available for all ages and household types. Mr. Rogato testified that development is not permitted in hazardous lands, which will be protected and buffered through retention of some existing trees and the planting of additional trees and native plants. Mr. Rogato testified that the existing heritage building is in a derelict state and the conservation plan will ensure protection of the building. Further, relocating the building to a more prominent location and installing a plaque will educate the public on the heritage resource.

70Mr. Ambrico agreed with Mr. Rogato’s opinion on conformity with the Growth Plan and highlighted Policy 2.2.1(4). It is Mr. Ambrico’s opinion that the Proposed Development is a mixed-use proposal that will contribute to the achievement of complete communities. There are a diverse range of residential units proposed and the building includes a commercial component which will be compatible to the residential uses. Mr. Ambrico testified that there was considerable thought put into the proposed uses by the City and the Applicant to ensure that the non-residential uses would be compatible. The intent is that residents will be able to avoid using vehicles for short trips to acquire necessities.

71Mr. Rogato opined that the OPA and ZBA conform to the Peel OP and the OP. Mr. Rogato testified that the intent of the general objectives of the Peel OP are to conserve environmental resources, promote sustainable development and establish healthy complete urban communities. The Subject Property is located in an existing urban boundary and the general policies of the Peel OP direct compact development / intensification for lands within these areas. Mr. Rogato opined that the Proposed Development conforms to the general objectives of the Peel OP and the site is appropriate for intensification. Mr. Rogato noted that the Subject Property is designated Urban System and Built-Up Area, both of which permit a wide range of residential uses, including Apartment Dwelling Units and Ground Floor Commercial uses. He testified that there will not be any encroachment on the valley land, the site is transit oriented and cultural resources will be protected with the adaptive reuse of the heritage building. Mr. Rogato further testified that the Region of Peel is an external commenting agency and after conducting a review, provided clearance of both the OPA and ZBA.

72Mr. Ambrico agreed with Mr. Rogato’s oral testimony and opinions. He testified that Policy 5.5.2.2 of the Peel OP is mandatory stating that Regional Council shall “direct a significant portion of new growth to the built-up areas of the community through intensification”. Policy 5.5.3.1 of the Peel OP sets out policies to support further intensification. Mr. Ambrico opined that the use of the underutilized Subject Property for the Proposed Development is appropriate intensification and conforms to these policies and thereby represents good planning.

73The OP sets out a test in Policy 3.2.8.5 for properties located outside of the Central Area that are seeking density increase permissions which would exceed the limits of 50 units / net hectare and four storeys in height. Both planners independently reviewed each of the 12 test criteria and determined that the Proposed Development satisfies the criteria as follows:

i. The Subject Property will be located within the Flowertown Plan and is consistent with its intent, which permits high density residential uses, up to 76 – 198 units / net hectare.

ii. Based on current forecasts, the City is projected to grow considerably in population over the next 10 years and the Proposed Development will contribute to the City’s desired housing mix by providing 1, 2 and 3 bedroom units.

iii. The Subject Property is located adjacent to the City’s downtown and there is a need for the Proposed Development to help the City meet its intensification targets and housing needs.

iv. The Proposed Development will form part of an existing community with convenient access to a wide range of existing land uses, including commercial, recreational, and open spaces.

v. The expert reports have demonstrated that the Proposed Development is a sustainable form of development that can be serviced by existing infrastructure.

vi. Schedule “B” of the OP considers McLaughlin Road South a Minor Arterial Road.

vii. The Subject Property has a bus stop on its McLaughlin Road South frontage and there are major transit services within the City’s downtown, which is adjacent to the site.

viii. The Proposed Development is compatible and integrates with adjacent land uses through the use of stepping to minimize shadowing and create a transition to the low-rise neighbourhood. The existing heritage building is preserved and relocated to a more prominent location.

ix. The Proposed Development provides opportunities for enjoyment of natural open spaces and provides for the planting of additional trees and native plantings.

x. The Subject Property has direct access to open space as it is adjacent to Fletcher’s Creek and Woodview Park.

xi. The Proposed Development maintains transition in built form as it represents moderate intensification adjacent to the City’s downtown while also being adjacent to an existing neighbourhood.

xii. The Proposed Development incorporates low impact development measures through the use of a rainwater harvesting tank which will be used for irrigation of the Subject Property.

74The planners agreed that the Proposed Development contributes to establishing complete communities as contemplated in the OP as it introduces a compact and varied form of housing that is not currently prevalent in the neighbourhood.

75Mr. Ambrico explained that providing the criteria set out in Policy 3.2.8.5 are met, then Policy 3.2.8.6 permits density of up to 200 units / net hectare. Mr. Ambrico opined that the Proposed Development meets the criteria set out in Policy 3.2.8.5 and is proposing a maximum density of 140 units / net hectare, which is well below the maximum permitted under Policy 3.2.8.6 and is an appropriate scale.

76Mr. Rogato and Mr. Ambrico opined that the ZBA will ensure that the Proposed Development is located optimally on the Subject Property to allow sufficient setbacks, parking, density, and landscaping.

77Mr. Ambrico testified that the Proposed Development and density are suitable. He noted that any development proposals that come to the City which surround or are adjacent to existing low density undergo extra thought to ensure that they are appropriately sited. In this case, he opined that the setbacks provided as part of the ZBA appropriately site the building away from the existing low density residential. The Proposed Development is an appropriate transition between higher densities in the adjacent urban growth area and existing low density residential.

FINDINGS AND DISPOSITION

78The Tribunal notes that the case presented by the Appellant and Mr. Margou demonstrated extensive research and effort. Mr. Margou submitted that he had conducted a detailed analysis of buildings in other neighbourhoods to compare access points and other details with the Proposed Development. Notwithstanding, the Tribunal did not find the submissions of the Appellant nor Mr. Margou to be of assistance. They were unable to offer objective evidence to the Tribunal and both acknowledged that they were not land use planners.

79The use of the word “expert” was used loosely during the hearing. The Tribunal does not attach weight to opinion evidence that is proffered by a witness or a party lacking expert qualifications. While the Appellant and Mr. Margou can provide factual evidence and evidence about things known to them, no weight can be given to opinions provided in areas that contain certain expertise, such as land use planning and traffic engineering.

80The Appellant focussed his case on the 2018 OMB decision. He argued that the Tribunal should not “overturn” that decision which eliminated a proposed access point to the Subject Property off Bufford Drive. The Tribunal disagrees with the Appellant’s argument. The appeal before the Tribunal is a new hearing, a hearing de novo. The Tribunal is not bound by the 2018 OMB decision, nor is that decision being “overturned” by City Council’s decision or by the determination that the Tribunal is making in the current appeal. The Tribunal must evaluate the OPA and ZBA on planning and technical merits, regardless of what has been decided in prior appeals relating to the Subject Property.

81Mr. Margou also relied on the 2018 OMB decision to emphasize that any development should be limited to low rise, low density commercial or residential. Notwithstanding the fact that there may be alternative designs that could have been considered for the Subject Property, the low rise and low density developments suggested by Mr. Margou are not before the Tribunal in the context of this appeal. The Tribunal is unable to place any weight on alternate proposals that are not relevant to the evaluation of whether the OPA and ZBA that are before the Tribunal meet the required tests.

82Pursuant to s. 2.1 of the Act, the Tribunal is required to have regard for the decision made by Council and the information that was before Council in making that decision. The Tribunal finds that despite public pressure to deny the applications, Council’s approval of the OPA and ZBA were supported by a City staff recommendation based on a detailed review of the application submissions, clearances provided by commenting agencies and the results of numerous studies.

83The Tribunal disagrees with the Appellant’s submission that Council’s job is to do what residents want. Rather, based on the City’s submissions and the testimony of Mr. Ambrico, the Tribunal finds that Council proceeded in the proper manner in conducting a thorough review of the applications, holding public meetings and responding to public comments and making a decision based on principles of good planning in accordance with policy direction.

84The Tribunal accepts the evidence of Mr. McIntyre that Corona Gate and Bufford Drive were built to City standards at the time and that emergency vehicles have not encountered difficulty navigating the streets. The Tribunal finds that street parking will not be exacerbated by the Proposed Development. Vehicles parked in areas with no parking signs relate to enforcement issues and are unrelated to this appeal.

85The Tribunal further finds that the traffic safety concerns raised by the Appellant and Mr. Margou relate to existing conditions, which the Appellant acknowledged. While the use of Corona Gate as an alternate route is a possibility, it is a public road for the use of all vehicles. Further, the Appellant and Mr. Margou failed to introduce any evidence or compelling argument to suggest that cutting through Corona Gate would be a frequently used alternative to McLaughlin Road South when there was a volume of traffic in the area. Overall, the Tribunal prefers the evidence and opinions of the City and the Applicant that the traffic safety concerns of the Appellant, Mr. Margou and the participants relate to existing conditions. The evidence does not support the apprehensions raised that the Proposed Development would result in a decrease to the level of traffic safety or pose additional issues for the ability of emergency vehicles to access the neighbourhood.

86With respect to parking, the Tribunal agrees with the City that the parking requirements in the ZBA mirror those in the parent by-law, which came into force after the applications were submitted. In his submissions, it appears that Mr. Margou has misinterpreted the map attached to the parent by-law. The areas located within the boundary on the map are subject to special parking standards, which do not apply in this case. The Subject Property is located outside of the special areas boundary and the City-wide parking standards are applicable to the Proposed Development and have been met.

87The Tribunal finds that the evidence does not support Mr. Margou’s assertion that a significant shadow will be caused by the Proposed Development. The Shadow Study demonstrated that there will be shadow impacts, however they are minimal and in fact, dwellings are already impacted by shadows cast by adjacent existing dwellings. As such, the evidence has shown that adverse impacts, if any, resulting from shadow impacts of the Proposed Development are minimal.

88In dismissing the appeal before it, the Tribunal must be satisfied that the OPA and ZBA meet the legislative tests. The Tribunal had the benefit of the uncontroverted and uncontested evidence of Mr. Rogato and Mr. Ambrico who were both of the opinion that the applications satisfied the legislative tests. Neither the Appellant nor Mr. Margou brought any evidence to support a claim that the OPA and ZBA did not meet the legislative tests, nor did they materially challenge the expert opinions that were proffered.

89The Tribunal finds that the Proposed Development facilitated by the OPA and ZBA is compatible with the policies of the PPS and Growth Plan that seek to provide a range and mix of housing types. The relocation and adaptive reuse of the heritage building is in keeping with provincial policies. The location of the Subject Property adjacent to the urban growth area makes it suitable for intensification. The evidence demonstrated that the Proposed Development is sited appropriately, and thought has gone into built form to ensure the setbacks respect the existing residential areas.

90Mr. Margou submitted that a low rise development would contribute to the requirements set out in the Growth Plan. The Tribunal does not agree. The existing neighbourhood offers an abundance of low rise options for residents. The addition of the Proposed Development to the area will contribute to a range and mix of options for residents that is not currently prevalent. The options provided by the Proposed Development offer residents of all ages and in all stages of life opportunities which low rise options may not offer. Further, alternative proposals are not before the Tribunal for consideration and are not relevant to this appeal.

91The Tribunal prefers the uncontradicted evidence of the City and the Applicant and finds that the Proposed Development is consistent with the PPS, conforms with the Growth Plan, Peel OP and OP, and is an appropriate density and layout for the Subject Property. There were no unacceptable adverse impacts to surrounding residents demonstrated to the Tribunal which would warrant allowing the appeal. Further, as was demonstrated in the findings of the studies and by the transportation experts, all technical requirements have been satisfied.

ORDER

92THE TRIBUNAL ORDERS that the appeal against Official Plan Amendment No. OP2006-213 is dismissed and that By-law No. 62-2022 to adopt Official Plan Amendment No. OP2006-213 of the City of Brampton is hereby approved as set out in Schedule A to this Order

93THE TRIBUNAL FURTHER ORDERS that the appeal against Zoning By-law Amendment No. 63-2002 is dismissed and that Zoning By-law Amendment No. 63-2002 of the City of Brampton is hereby approved as set out in Schedule B to this Order.

“C. Hardy”

c. hardy

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.