2375423 Ontario Inc. and Bancroft Property Holdings Inc. v. City of Greater Sudbury, 2023 CanLII 100162

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 26, 2023

CASE NO(S).: OLT-22-004774

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

Applicant/Appellant: 2375423 Ontario Inc. & Bancroft Property Holdings Inc.

Subject: Zoning By-law Amendment

Description: To redevelop the subject property with the development of 16 various medium density residential buildings

Reference Number: 751-6/21-09

Property Address: 95 Estelle Street

Municipality: City of Sudbury

OLT Case No.: OLT-22-004774

OLT Lead Case No.: OLT-22-004774

OLT Case Name: Bancroft Property Holdings Inc. v. Sudbury (City)

Heard: October 12, 2023 by video hearing

APPEARANCES:

Parties	Counsel
2375423 Ontario Inc. and Bancroft Property Holdings Inc. (the “Appellants”)	K. Mullin B. Artus
City of Greater Sudbury (the “City”)	S. Watt

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON OCTOBER 12, 2023 ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

12375423 Ontario Inc. and Bancroft Property Holdings Inc. (the “Appellants”) are the owners of the property municipally known as 95 Estelle Street in the City of Greater Sudbury (the “Subject Property”). The Subject Property is approximately 6.16 hectares (“ha”) in area and is comprised of a former school site of approximately 1.75 ha which was declared surplus to the Sudbury Catholic District School Board’s needs in 2012 and vacant lands of approximately 4.4 ha.

2On March 5, 2021, the Appellants submitted a zoning by-law amendment application to the City requesting rezoning of the Subject Property to “Medium Density Residential (R3-1)” to permit residential development consisting of 179 dwelling units within 3 five-storey apartment buildings (2 buildings with 45 dwelling units each and 1 building with 30 dwelling units), and 13 two-storey multiple, row and semi-detached buildings containing a total of 59 dwelling units (the “ZBA Application”).

3On November 8, 2022, the City’s Council approved, with modifications, the ZBA Application by passing By-law No. 2022-185Z, amending the City’s comprehensive Zoning By-law No. 2010-100Z, as amended (“By-law 2022-185Z”). By-law No. 2022-185Z rezoned the Subject Property to “Medium Density Residential Special” and the modifications included a maximum building height of 11 metres (“m”) for all buildings on the Subject Property and a minimum parking space requirement of 1.25 per dwelling unit for all unit types.

4The Appellants appealed By-law No. 2022-185Z pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) with particular reference in their Notice of Appeal to the modifications included in By-law 2022-185Z (the “Appeal”).

5Prior to the first Case Management Conference (“CMC”) scheduled with respect to the Appeal, the Appellants and the City advised the Tribunal that they had reached a settlement of the Appeal and requested that the CMC be converted to a Settlement Hearing to provide the Parties with an opportunity to present a revised proposed Zoning By-law Amendment (the “Revised ZBA”) to the Tribunal for its consideration. The Tribunal granted this request.

6At the conclusion of the Hearing on October 12, 2023, the Tribunal rendered an oral decision allowing the Appeal and approving the Revised ZBA and this is the written memorandum of that oral decision and Order of the Tribunal.

PROCEDURAL MATTERS

7An Affidavit of Service of Brigitte Sobush sworn August 29, 2023 was entered into evidence as Exhibit 1 and the Tribunal is satisfied that the same evidence is satisfactory notice of the subject proceedings.

EVIDENCE

8At the Hearing, the Appellants called one witness, Kevin Jarus, who was qualified by the Tribunal to provide expert opinion land use planning evidence. Mr. Jarus’s Acknowledgement of Expert’s Duty and Curriculum Vitae are found at Exhibits B and C respectively of Mr. Jarus’s Affidavit sworn September 29, 2023. This Affidavit was entered into evidence as Exhibit 2 (the “Jarus Affidavit”).

9The Tribunal heard Mr. Jarus’s oral testimony and also considered the evidence contained in the Jarus Affidavit.

10Mr. Jarus provided expert professional land use planning opinion evidence at the Hearing as follows:

(a) The Subject Property is currently split zoned as “Institutional” (the former school site lands) and Future Development (the vacant lands) and is surrounded predominantly by single detached residential development and open space lands.

(b) The By-law under appeal, By-law 2022-185Z, would rezone the Subject Property to “Medium Density Residential Special” consistent with the ZBA Application; however, By-law 2022-185Z includes the following modifications:

(i) The maximum building height of any building shall be 11 metres;

(ii) Planting strips shall be provided as follows: (a) a minimum ten (10) metre-wide natural vegetative buffer shall be provided where the Subject Property abuts a Low Density Residential Zone excluding any clearance of land required for the servicing corridor to Bancroft Drive; and (b) Notwithstanding the foregoing, a minimum three (3) metre-wide planting strip with a minimum 1.5 metre-high opaque fence is required where the Subject Property abuts the southerly limit of Part 2, Plan 53R-13471 and the northerly limit of Part 1, Plan SR-140; and

(iii) Notwithstanding Table 5.5 of Section 5.5, the following alternative parking standards shall be permitted: (a) 1.25 spaces per unit.

(c) Similar to By-law 2022-185Z, the Revised ZBA proposed by the settlement would rezone the Subject Property to “Medium Density Residential Special”; however, the proposed site-specific provisions would be revised with respect to the maximum building height and parking space requirements as follows:

(i) The maximum building height of any building within 30 metres of a lot line shall be 11 metres;

(ii) A minimum ten (10) metre-wide natural vegetative buffer shall be provided where the Subject Property abuts a Low Density Residential Zone excluding any clearance of land required for the servicing corridor to Bancroft Drive; and, notwithstanding the above, a minimum three (3) metre-wide planting strip with a minimum 1.5 metre-high opaque fence is required where the subject land abuts the southerly limit of Part 2 Plan 53R-13471 and the northerly limit of Part 1, Plan SR-140; and

(iii) Notwithstanding Table 5.5 of Section 5.5, the following alternative parking standards shall be permitted: 1.1 spaces per unit.

Provincial Policy Statement

11Mr. Jarus testified that the Subject Property is located within the City’s settlement area and the Revised ZBA is consistent with Section 1.1.3 of the Provincial Policy Statement (the “PPS”) which states that Settlement Areas shall be the focus of growth and development. Mr. Jarus opined that the proposed development is suitable for, and effectively uses, existing infrastructure and public service facilities. In this regard, Mr. Jarus noted that the proposed development will be connected to full municipal sanitary and water services and the Traffic Impact Study (Exhibits N and O of the Jarus Affidavit, the “TIS”) concluded that no road improvements would be required to support the proposed development. Moreover, Mr. Jarus testified that the proposed development incorporates a mix of housing types and tenures in an area predominated by single-detached dwellings in a manner consistent with Section 1.4.3 of the PPS which states 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.

Growth Plan for Northern Ontario

12Mr. Jarus testified that the Subject Property is located within the geographic area to which the Growth Plan for Northern Ontario (the “Growth Plan”) applies, and, in this regard, Mr. Jarus opined that the Revised ZBA conforms with the Growth Plan. In particular, Mr. Jarus noted that Section 3.4.3 of the Growth Plan states that municipalities are encouraged to support and promote healthy living by providing for communities with a diverse mix of land uses, a range and mix of employment and housing types, high-quality public open spaces, and easy access to local stores and services. Mr. Jarus opined that the proposed development contemplated by the Revised ZBA will promote a “further range of housing types by allowing the introduction of increased rental housing stock and more diverse built form.”

City of Greater Sudbury Official Plan

13Mr. Jarus opined that the Revised ZBA conforms to the City’s Official Plan (the “City’s OP”). In this regard, Mr. Jarus noted that the Subject Property is located within the Built Boundary of the OP. In particular, Mr. Jarus referred to Section 2.3.2 of the City’s OP which encourages intensification within the Built Boundary and facilitating densities and land uses that make the most efficient use of land within the City’s settlement boundary. Mr. Jarus opined that the proposed development contemplated by the Revised ZBA will contribute to the efficient use of land, infrastructure and public service facilities, and will support the public transit system and active transportation and in so doing will minimize impacts on air quality and climate change.

14Mr. Jarus opined that the Revised ZBA conforms to the locational criteria for intensification set out in Section 2.3.3 of the City’s OP given that the size of the Subject Property is appropriate to accommodate medium density residential use, there will be appropriate landscaping buffering and setbacks in relation to existing residential uses, and the proposed development will utilize existing public infrastructure and contribute to public transit ridership and active transportation.

15Mr. Jarus testified that the Subject Property is designated Living Area 1 (the vacant lands) and Institutional (the former school site) in the City’s OP. Mr. Jarus opined that the Revised ZBA conforms to the polices related to lands designated Living Area given the Subject Property’s size and shape that facilitates enhanced setbacks, approximately 60% landscaped open space, screening/buffering through vegetative planting strips, and 20-25% lot coverage. Mr. Jarus testified that Section 4.4.3 of the City’s OP allows for rezoning applications related to conversion of surplus institutional buildings without an official plan re-designation being required provided that certain criteria are met. Mr. Jarus opined that the subject criteria are met with respect to the Revised ZBA as the land designated Institutional is a surplus former school site and the proposed development contemplated by the Revised ZBA is compatible with the surrounding existing land uses and is an appropriate density given the Subject Property’s context.

16Mr. Jarus testified that Section 17.2 of the City’s OP details policies related to housing and opined that the Revised ZBA conforms to these policies as it contemplates provision of a range of housing types to meet the housing needs of current and future residents with a range of unit sizes and types. Further, Mr. Jarus opined that the Revised ZBA supports the creation of complete communities by proposing a variety of housing tenures/built forms and densities in an area currently predominated by single detached dwellings.

17Mr. Jarus testified that Section 11.4 of the City’s OP contains policies related to providing an adequate supply of parking and when parking standards may be reduced. Mr. Jarus opined that the TIS recommended 187 parking spaces for 179 dwelling units (approximately 1 parking space per dwelling unit) while the Revised ZBA will require slightly more parking (1.1 parking spaces per dwelling unit).

City of Greater Sudbury Comprehensive Zoning By-law 2010-100Z

18Mr. Jarus opined that the site-specific provisions of the Revised ZBA pertaining to the parking standard and the building height and planting strip requirements are appropriate and supportable in the context of the general intent of the City’s Zoning By-law for the following reasons:

(a) The site-specific reduction in the parking standard is based on and supported by the analysis set out in the TIS, and will result in less paved surface in the Ramsay Lake Intake Protection Zone 3 area thus reducing both the risks associated with parking areas and snow storage and the amount of stormwater runoff to be managed, and will result in more landscaped and amenity area benefitting the residents; and

(b) The site-specific limit on height and the planting strip requirements are appropriate given the adjacent lower density residential area comprised mainly of single detached dwellings and related land use compatibility and intensification policies as contemplated by Section 2.3.3(9)(b) and (c) of the City’s OP. Mr. Jarus noted that in locations at which vegetative planting strips are not appropriate (i.e., in the vicinity of the servicing corridor to Bancroft Drive and road ingress/egress sightlines) opaque fencing would be required by the Revised ZBA in order to achieve the screening contemplated by the policies of the City’s OP noted above.

Matters of Provincial Interest

19Mr. Jarus opined that the Revised ZBA has appropriate regard for the matters of provincial interest set out in Section 2 of the Planning Act, specifically subsections: f) the adequate provision and efficient use of communication, transportation, sewage and water services and water management systems; h) the orderly development of safe and healthy communities; j) the adequate provision of a full range of housing, including affordable housing; l) the protection of the financial and economic well-being of the Province and its municipalities; p) the appropriate location of growth and development; and q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians.

20In summary, it was Mr. Jarus’s professional land use planning opinion that the Revised ZBA has appropriate regard for matters of Provincial interest set out in s. 2 of the Act, is consistent with the PPS, conforms with the Growth Plan and the City’s OP and constitutes good land use planning.

FINDINGS

21Upon consideration of the evidence set forth in the Jarus Affidavit and the oral evidence of Mr. Jarus at the Hearing, all of which was uncontroverted, the Tribunal finds that the Revised ZBA is consistent with the Provincial Policy Statement, conforms with the Growth Plan and the City’s OP, and constitutes good land use planning. In reaching this finding, the Tribunal has had regard for the matters of Provincial interest set out in s. 2 of the Act and the decisions of the City’s Council with respect to the Revised ZBA as reflected by its approval of the settlement.

ORDER

22THE TRIBUNAL ORDERS that the Appeal against By-law No. 2022-185Z of the City of Greater Sudbury is allowed in part, and the City of Greater Sudbury By-law No. 2010-100Z is amended as set out in Schedule “A” to this Order. In all other respects, the Tribunal orders that the Appeal is dismissed.

23The Tribunal authorizes the municipal clerk of the City of Greater Sudbury to format as may be necessary and to assign a number to this By-law for record keeping purposes.

“D. Arnold”

D. ARNOLD MEMBER 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.

Schedule “A” to OLT-22-004774 Order Issued October , 2023

By-law 2023-____

A By-law of the City of Greater Sudbury to Amend By-law 2010-100Z Being the Comprehensive Zoning By-law for the City of Greater Sudbury

1. (1) That By-law 2010-100Z being the Zoning By-law for the City of Greater Sudbury, and Schedule "A" attached thereto, be and the same is hereby amended by changing the zoning classification of the following lands from "I", Institutional and "FD", Future Development to "R3- 1.D30(34)", Medium Density Residential Special.

(2) Property Description:

PIN 73575-0374(L T) Parcel 4435 S.E.S. Part of Lot 9, Concession 3 Township of Neelon, City of Greater Sudbury

PIN 73575-0408(L T) Parcel42696 S.E.S. Part of Lot 9, Concession 3 Being Part 1 on Plan 53R-4763 Township of Neelon, City of Greater Sudbury

PIN 73575-0430(L T) Parcel 18885 S.E.S. Part of Lot 9, Concession 3 Township of Neelon, as in LT109249 City of Greater Sudbury

2. That the following paragraph be added to Part 11, Section 1, Subsection (11):

(##) R3-1.D30(34) (Former St. Remi School site and abutting lands) Neelon Township Maps Lot 9 Con 3, lot 10 Con 3

Notwithstanding any other provision hereof to the contrary, within any area designated R3-1.D30(34) on the Zone Maps, all provisions of this by-law applicable to the "R3-1", Medium Density Residential zone shall apply subject to the following Modifications:

(i) The maximum building height of any building within 30 metres of a lot line shall be 11 metres;

(ii) Planting strips shall be provided as follows:

(a) A minimum ten (10) metre-wide natural vegetative buffer shall be provided where the subject land abuts a Low Density Residential Zone excluding any clearance of land required for the servicing corridor to Bancroft Drive; and,

(b) Notwithstanding the above, a minimum three (3) metre-wide planting strip with a minimum 1.5 metre-high opaque fence is required where the subject land abuts the southerly limit of Part 2 Plan 53R-13471 and the northerly limit of Part 1, Plan SR-140

(iii) Notwithstanding Table 5.5 of Section 5.5, the following alternative parking standards shall be permitted:

(a) 1.1 spaces per unit.

3. This By-law is in conformity with the City of Greater Sudbury Official Plan as amended.

PASSED in accordance with the decision and order of the Ontario Land Tribunal issued on __________, 2023.

SCHEDULE A to By-law 2023 - ____

PURPOSE AND EFFECT: This by-law rezones the subject property to "R3-1.D30(34)", Medium Density Residential Special in order to permit R3-1 uses on a former school property and abutting undeveloped lands, to include site-specific provisions related to building height, residential density, required landscaping and relief for parking (95 Estelle Street, Sudbury)