Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 30, 2023

CASE NO(S).: OLT-22-003126 (Formerly PL200619)

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

Appellant: 2107401 Ontario Inc. Et Al Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: OPA/ZBA/DPS - Phase 5 - Lakeside Village Reference Number: OP01-2019 Property Address: Various Locations Municipality/UT: Municipality of Port Hope OLT Case No: OLT-22-003126 Legacy Case No: PL200619 OLT Lead Case No: OLT-22-003126 Legacy Lead Case No: PL200619 OLT Case Name: 2107401 Ontario Inc. Et Al v. Port Hope (Municipality)

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: OPA/ZBA/DPS - Phase 5 - Lakeside Village Reference Number: ZB06-2019 Property Address: Various Locations Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-22-003127 Legacy Case No: PL200620 OLT Lead Case No: OLT-22-003126 Legacy Lead Case No: PL200619

PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: OPA/ZBA/DPS - Phase 5 - Lakeside Village Reference Number: SU01-2019 Property Address: Various Locations Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-22-003129 Legacy Case No: PL200621 OLT Lead Case No: OLT-22-003126 Legacy Lead Case No: PL200619

Heard: September 7-8, 2023 via video hearing

APPEARANCES:

Parties 21007401 Ontario Inc. et al (the “Applicant”) Counsel Paul DeMelo

Parties Town of Port Hope (the “Municipality”) Counsel Jennifer Savini

MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE AND N. EISAZADEH ON SEPTEMBER 8, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is a settlement hearing respecting Phase 2 of an appeal for non-decision by the Municipality of applications for an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”), and a Draft Plan of Subdivision (“Draft Plan”), to facilitate a development proposal for the lands known locally as Phase 5B of the Lakeside Village Development in the Town of Port Hope (“Subject Lands”).

2By Order of this Tribunal dated June 9, 2021, this appeal was bifurcated into two Phases in order to facilitate the hearing of a partial settlement reached for the entirety of the development lands, save and except for the Subject Lands (referred to locally as Phase 5B) which is comprised of a contested woodlot found in Block 272 as well as a 120 metre (“m”) buffer thereof (“Woodlot Lands”). The Parties had agreed that further study was warranted for the Woodlot Lands and so a Settlement Hearing for the balance of development lands (also referred to as Phase 5A) proceeded as Phase 1; while Phase 2 (comprised of the Subject Lands and referred to as Phase 5B) was adjourned sine die pending completion of the further required studies. By the same prior Decision of this Tribunal, the Settlement for Phase 1 was approved, the appeal was allowed in part, and approval of the planning instruments to facilitate Phase 5A of the development proposal was granted.

3The requisite additional studies on the Woodlot Lands were subsequently completed, which has led to the present Settlement Hearing wherein the Parties have entered into Minutes of Settlement (“MOS”) dated July 5, 2023, setting out the proposal that is the subject of the present Hearing (“Settlement Proposal”). The MOS have been approved by Council of the Municipality and have been made available to the Public.

4For the reasons that follow, the Panel determined that this Phase 2 appeal should be allowed, and approval of the applications granted.

PARTIES AND PARTICIPANTS

5While there were two Non-Appellant Parties initially involved in this Phase 2 Hearing, they have both withdrawn their status such that the Statutory Parties are the only remaining parties to the present appeal.

6In particular, the two Non-Appellant Parties previously granted Party status are PHorests 4 R PHuture Community Associations Inc. (“PHorests Group”), and Jeremy Holmes and Dianne Despot. Both Parties subsequently withdrew their Party status and opted instead to proceed by way of Participant Status. However, the only additional Participant Statement received in this regard is from the PHorests Group and is dated, July 20, 2023.

7PHorests Group filed an additional Supplementary Participant Statement, particularly in respect of this Settlement Hearing, dated September 1, 2023. Counsel for the Statutory Parties took no objection with the filing and consideration of the PHorests Group Supplementary Participant Statement.

8There were no further Participant Statements received by the Tribunal beyond those mentioned above or listed in Attachment 1 to the prior Decision of this Tribunal dated June 9, 2021. The list of Participants whose statements were considered on the present Settlement Hearing include the following:

a. Architectural Conservancy of Ontario, Port Hope Branch b. Williams Port Condominium Board c. David Elliot d. Glen Keilder and Jennifer Cooper e. Wayne Johnson f. Shannon Linton g. Ian McCrae h. Carole Payne i. Lisa Poirier j. Joachim Schmeiss k. Christopher Terry l. Suzanne Stickley m. Lance Gifford n. Janette Johnston o. Laura Steen p. Jane Zednik

THE SETTLEMENT PROPOSAL

9The MOS proposes the development of a residential plan of subdivision on the Subject Lands, comprised of a total of 101 residential units, a 0.057 hectare (“ha”) Parkette, a 0.03 ha Open Space Block, a 0.029 ha Future Residential Development Block, 0.3 m Reserves, as well as streets and lanes. The 101 residential units consist of 43 rear-lane townhouse dwellings and 58 single-detached dwellings on various types and sizes of lots.

10To implement the Settlement Proposal, the MOS outline proposed amendments to the Municipality’s Official Plan to amend the designation of the Subject Lands from “Residential 1”, “Residential 2” and “Local Commercial” within Special Policy Area 9, to a proposed new “Special Site Policy Area “18” which would provide for a mix and range of residential dwelling units, including single-detached dwellings and townhouse dwellings, at a minimum population density of 40 residents per ha. The proposed OPA, is found in Exhibit 1, Tab 13.

11The Settlement also proposes an amendment to the Municipality’s Zoning By-law No. 20-2010 to rezone the Subject Lands from High Density Residential Exception 28 Holding One ‘RES4(28)(H1)’, Medium Density Residential Exception 115 ‘RES3(115)’, and General Commercial Exception 30 Holding One ‘COM2(30)(H1)’, to Medium Density Residential Exception 48 ‘RES(148)’ and Medium Density Residential Exception 149 ‘RES(149)’. The proposed ZBA may be found in Exhibit 1, Tab 14.

12The OPA and ZBA are necessary to facilitate approval of the proposed Draft Plan, SU01-2019 prepared by Innovative Planning Solutions (File: 21-1147) dated August 18, 2023 , which is found in Exhibit 1, Tab 15. The recommended conditions of Draft Plan Approval (“DPA”) are detailed in Exhibit 1, Tab 16.

THE EVIDENCE AND HEARING

13In support of the Settlement reached, the Applicant called Kevin Bechard, a Registered Professional Planner who was qualified, on consent, to provide expert opinion evidence in the field of Land Use Planning. At the request of the Tribunal, the Applicant also called Chris Ellingwood, Senior Terrestrial and Wetland Biologist with GHD who prepared the Environmental Impact Study with respect to the Woodlot Lands. Mr. Ellingwood was also qualified, on consent, as an Ecologist/Biologist expert to provide opinion evidence in the field of Ecology.

14The Tribunal marked the following documents as Exhibits on the Settlement Hearing:

• Exhibit 1: Witness Statement of Kevin Bechard dated August 29, 2023, with all attachments and exhibits thereto
• Exhibit 2: Ariel Photograph of the Subject Lands
• Exhibit 3: OPA Excerpt with Mapping Photograph
• Exhibit 4: GHD Environmental Impact Study – Phase 5 dated December 17, 2021 (“EIS”)
• Exhibit 5: FSmith Consulting Woodlot Assessment Report dated April 2023 (“WA Report”)
• Exhibit 6: North-South Environmental Peer Review of EIS Update dated April 12, 2022 (“Peer Review Report”)
• Exhibit 7: Curriculum Vitae of Chris Ellingwood, Ecologist Biologist Expert
• Exhibit 8: Acknowledgment of Expert Duty Form of Chris Ellingwood, Ecologist Biologist Expert

15The Panel also reviewed the Municipal Record available to it as forwarded by the Municipality, as well as considered all Participant Statements as filed.

16The most contentious aspect of this development proposal may be summarized as related to environmental concerns and natural heritage policies set out in the Provincial Policy Statement, 2020 (“PPS”). It is agreed that the Woodlot Lands constitute Significant Woodlands as defined under the relevant governing legislative, statutory and policy framework. Pursuant to policy 2.1.5 of the PPS, development in Significant Woodlands is not permitted unless it is demonstrated that there will be no negative impacts on the natural features and their functions. It is agreed among the Parties that policy 2.1.5 of the PPS does not provide an outright prohibition against development, rather the test to be satisfied is whether there is no negative impact on the natural features and function of the Significant Woodlands.

17Many of the Participant Statements question the potential consequences that might arise from the removal of the Woodlot in order to accommodate the proposed development and contend that such removal is contrary to Provincial Policy. Most notably, the Participant Statement and Supplementary Statement from the PHorests Group detail its opposition to the Settlement Proposal, which essentially removes the entirety of the trees and vegetation of the approximate 3.15 ha of the Woodlot, alleging it is contrary to Provincial Policy as well as the position taken in the Peer Review Report of the Applicant’s EIS, commissioned by the Municipality prior to reaching a settlement.

18To answer these questions, Mr. Ellingwood was called at the request of the Tribunal to speak to his EIS and expand further on his written opinions and conclusions reached.

19In summary, Mr. Ellingwood credibly defended his EIS and confirmed that the Woodlot in question could be removed as the ecological function of environmental features that were identified are limited. Mr. Ellingwood explained that the Woodlot is an isolated portion of a larger woodlands system that provides limited ecological function on its own and can be enhanced and improved elsewhere through a Compensation Plan. He confirmed his opinion that the proposed development could proceed as the removal of the subject Woodlot would not negatively impact the balance of the Significant Woodland feature or its ecological functions.

20Mr. Ellingwood also provided his recommendations as to how the proposed development may proceed in order to ensure that the ecological functions of the larger Woodland would not be negatively impacted through various mitigation measures and a compensation plan, as reflected in the Conditions to the DPA.

21Mr. Bechard also provided evidence related to the significance of the Woodlot and the application of the relevant natural heritage policies, including policies 2.1.4, 2.1.5, and 2.1.8 of the PPS. Notably, Mr. Bechard pointed to the FSmith Consulting WA Report summarizing its conclusion that the overall health of the forest is poor, in decline, will exhibit pronounced and prolonged heath issues in the decades to come, and will require large inputs of time and investment over a decade in order to correct.

22Mr. Bechard further emphasized the conclusions of the EIS which contend that the Woodlot may be removed as the ecological function of the environmental features that have been identified are limited, that the Woodlot is at the edge and a part of a larger Woodland, and that the Woodlot provides limited ecological functions on its own that can be enhanced and improved elsewhere. Mr. Bechard opined that the WA Report and EIS reinforce one another, and he relies on them in arriving at his overall opinion that due to the declining poor health of the Woodlot and its limited ecological function, its removal would not have any negative impact, and would satisfy the requisite conformity test. He added that without significant ecological contribution, the alternative of preserving a degraded Woodlot over the provision of housing, which is in significant demand, is not in the public interest.

23Mr. Bechard also considered the mitigation measures and compensation plan recommendations contained in the EIS concurring they would ensure no negative impact to the ecological features and functions of the larger woodlands system. Mr. Bechard opined further that the Proposed Settlement goes beyond the mitigation strategies and compensation recommendations of the EIS by providing additional contribution to the Municipality. Specifically, the MOS includes a financial contribution to the Municipality, not mandated or otherwise required by any legislative, statutory or policy framework, that will be used to provide for enhanced planting of trees throughout the Municipality in areas that the Municipality determines would best benefit the community.

24Respecting the balance of the Planning evidence in support of the Proposed Settlement, Mr. Bechard opined that the Settlement Proposal represents good planning and is in the public interest.

25More particularly, and regarding the legislative tests for the proposed OPA, ZBA, Draft Plan and Conditions of DPA, Mr. Bechard opined as follows:

a. They have appropriate regard for matters of Provincial interest identified in s. 2 of the Act, b. They have appropriate regard for the decisions of the Municipality’s Council as reflected in the MOS; c. They are consistent with the PPS; d. They conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended, (the “Growth Plan”); e. They conform to the County of Northumberland Official Plan (“County OP”); f. They conform to the general intent and purpose of the Town OP; g. The ZBA standards and regulations implement the proposed OPA; h. The proposed Draft Plan satisfies all the criteria pursuant to s.51(24) of the Act, is not premature, and is in the public interest; i. The proposed Conditions of DPA are reasonable and appropriate for the development of the Subject Lands; j. The proposed planning instruments represent good planning; k. Approval of the Phase 2 planning instruments would be in the public interest; and, l. It would be appropriate if the Tribunal was to delegate authority to the Municipality for the granting of final plan approval of the plan of subdivision pursuant to s. 51(56.1) of the Act.

FINDINGS

26With regard to Phase 2, the Panel has the uncontested expert land use planning evidence of the Applicant’s Planner, and the uncontested ecological evidence of the Applicant’s Ecologist/Biologist.

27The Panel accepts the uncontroverted expert opinion evidence of Mr. Ellingwood and Mr. Bechard, as well as the documentary evidence filed with respect to the Woodlot Lands, its designation as Significant Woodlands and the application of the relevant natural heritage policies to those lands. Given the overall poor and declining health of the Woodlot, its isolation from a neighbouring larger woodlands system and its limited ecological functions and features on its own, the Panel accepts that its removal would not have any negative impact on the features or functions provided the mitigation strategies and compensation plan are followed, as set out in the Conditions to the DPA.

28The Panel accepts the uncontroverted planning opinion evidence of Mr. Bechard in support of the Settlement Proposal in that it meets all the statutory tests, represents good planning and is in the public interest, and further that the planning instruments set out in Attachments 1 to 4 to the Order below are appropriate.

29The Panel finds that the Settlement Proposal has had proper regard for the assessment of ecological systems, including natural areas in considering the removal of the Woodlot, and has been arrived at through extensive engagement of the public, municipal bodies and agencies, and it will contribute to the supply and range of housing within the Municipality and use existing and planned services in the area.

30The Panel finds that the Settlement Proposal and the planning instruments are consistent with the PPS, conform, do not conflict, with the Growth Plan, conform with the County OP, conform with the general intent and purpose of the Town OP, satisfy the criteria of s. 51(24) of the Act, as applicable, have regard to the Municipality’s Decision expressed by way of the MOS, and have regard to s. 2 of the Act respecting matters of Provincial interest.

31Accordingly, the Panel allows the appeals and grants the requested approvals, as set out in the details below.

ORDER

32THE TRIBUNAL ORDERS that the appeal filed pursuant to section 22(7) of the Planning Act, R.S.O. 1990, c.P.13, as amended, is allowed, and Amendment No. 12 to the Official Plan for the Town of Port Hope, as set out in Attachment 1 to this Order, is approved.

33AND THE TRIBUNAL ORDERS that the appeal filed pursuant to Section 34(11) of the Planning Act, R.S.O. 1990, c.P.13, as amended, is allowed in part , and that By-law No. XX-2023 is hereby amended in the manner set in Attachment 2 to this Order. The Tribunal authorizes the Municipal clerk to assign a number to this by-law for record keeping purposes.

34AND THE TRIBUNAL ORDERS that the appeal filed pursuant to section 51(34) of the Planning Act, R.S.O., 1990, as amended, is allowed in part and the draft plan shown on the plan prepared by Innovative Planning Solutions dated, August 18, 2023, as set out in Attachment 3, is approved subject to the fulfillment of the conditions set out in Attachment 4 to this Order.

35AND THE TRIBUNAL ORDERS that pursuant to s. 51(56.1) of the Planning Act, R.S.O., 1990, as amended, the Town of Port Hope shall have the authority to clear the conditions of draft plan approval and to administer final plan approval of the plan of subdivision for the purposes of s. 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

36The Tribunal may be spoken to in the event that any issues should arise in connection with the implementation of this Order.

“S.L. Dionne”

S.L. DIONNE MEMBER

“N. Eisazadeh”

N. EISAZADEH 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.