CORRECTION NOTICE

OLT CASE NO(S).:

OLT-21-001950

DECISION ISSUE DATE(S):

December 07, 2023

CORRECTION NOTICE ISSUE DATE:

December 14, 2023

RE: 2601622 Ontario Inc. v. Aurora (Town)

Correction to: The address in paragraph [27], to correct from 38 Berczy Street to 34 Berczy Street.

Originally:

27As it was provided with no evidence to the contrary, the Tribunal is satisfied that 38 Berczy Street has no cultural heritage value or interest and as such it is appropriate for the Town to repeal Heritage By-law 6439-22.

Corrected to:

27As it was provided with no evidence to the contrary, the Tribunal is satisfied that 34 Berczy Street has no cultural heritage value or interest and as such it is appropriate for the Town to repeal Heritage By-law 6439-22.

“Euken Lui”

EUKEN LUI REGISTRAR

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.

ISSUE DATE:

December 07, 2023

CASE NO(S).:

OLT-21-001950

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

Applicant and Appellant:

2601622 Ontario Inc.

Subject:

Request to amend the Official Plan - Failure of the Town of Aurora to adopt the requested amendment

Existing Designation:

“Promenade General – Special Design Area”

Proposed Designation:

To implement a site-specific policy in the existing designation for the purpose on increasing the maximum building height from 5-storeys to 7-storeys and to reduce the size of the Urban Square from 215.35 square metres (2,318 square feet) (3% of the net developable site area) to 50 square metres (538.19 square feet)

Purpose:

To permit the development of a 7-storey mixed-use residential building with 356 units

Property Address/Description:

26, 30, 32, 34-38 Berczy Street

Municipality:

Town of Aurora

Town of Aurora File No.:

OPA-2020-01

OLT Case No.:

OLT-21-001950

OLT Lead Case No.:

OLT-21-001950

OLT Case Name:

2601622 Ontario Inc. v. Aurora (Town)

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

Applicant and Appellant:

2601622 Ontario Inc.

Subject:

Application to amend Zoning By-law No. 6000-17, as amended – Neglect of application by the Town of Aurora

Existing Zoning:

“E1 (10) Employment Zone”

Proposed Zoning:

“PDS1 – Promenade Downtown Shoulder Exception Zone”

Purpose:

To permit the development of a 7-storey mixed-use residential building with 356 units

Property Address/Description:

26, 30, 32, 34-38 Berczy Street

Municipality:

Town of Aurora

Town of Aurora File No.:

ZBA-2020-01

OLT Case No.:

OLT-21-001951

OLT Lead Case No.:

OLT-21-001950

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18.

Appellant

2601622 Ontario Inc.

Subject:

Heritage by-law to designate subject property

Description:

To designate the property as a property of cultural heritage value or interest

Reference Number:

BL 6439-22

Property Address:

34 Berczy Street

Municipality/UT:

Aurora/York

OLT Case No:

OLT-22-004255

OLT Lead Case No:

OLT-21-001950

Heard:

November 21, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative

2601622 Ontario Inc.

Naomi Mares Eileen Costello (in absentia)

Town of Aurora

Chantal deSereville Denise Baker (in absentia)

Atria Developments

Max Laskin

MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER ON NOVEMBER 21, 2023 AND INTERIM ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION

1An appeal was made by 2601622 Ontario Inc (the “Applicant”) to the Ontario Land Tribunal after the Town of Aurora (“Town”) failed to make a decision within the statutory timelines for the site-specific Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBLA”) necessary to facilitate the redevelopment of the properties known municipally as 26, 30, 32, 34 – 38 Berczy Street (the “Subject Lands”).

2In July 2022, Heritage By-law 6439-22 was adopted by the Town to designate 34 Berczy Street under Part IV, subsection 29 of the Ontario Heritage Act, R.S.O. 1990, c. O.18. (“OHA”). This by-law was subsequently appealed by the Applicant to the Tribunal. At the second Case Management Conference held on the Appeal of the OPA and ZBLA in October 2022, the appeal of the heritage designation of 34 Berczy Street was formerly consolidated with the appeals brought pursuant to the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”).

3On the eve of the hearing on the merits of this matter, the Town and the Applicant, reached a settlement and entered into Minutes of Settlement (“MOS”). The Tribunal convened to hear the settlement proposal (“Settlement Proposal”) and the uncontested expert evidence from the Applicant’s land use planner, Martin Quarcoopome. While Atria Developments was not a Party to the MOS, it raised no objections to the Settlement Proposal.

4The Tribunal was satisfied that the Settlement Proposal was representative of good land use planning and in the public interest. The appeal was allowed subject to conditions.

SUBJECT LANDS

5The Subject Lands are comprised of four separate land parcels located at the corner of the Berczy Street and Mosley Street intersection in central Aurora. The site has a combined lot area of approximately 0.72 hectares ("ha”) with approximately 116 metres ("m”) of total frontage along Berczy Street, a major collector street, and 62 m of frontage along Mosley Street. The Aurora GO Transit commuter rail station is on Berczy Street, opposite the Subject Lands. Future improvements contemplated for the Aurora GO Station include an underpass at Wellington Street East near its intersection with Berczy Street. As a result of the underpass’ proposed design, prepared by Metrolinx’ consulting engineers, Berczy Street is identified for realignment. The proposed redevelopment of the subject lands takes into consideration the Berczy Street realignment.

6The Subject Lands are surrounded by a mix of uses, including commercial and residential lots to the north, an industrial yard across Mosley Street to the south and a residential neighbourhood of single detached dwellings to the west. The Aurora GO Station is across Berczy Street to the east. The area is well served by community uses including Aurora Park and Sheppard’s Bush, the latter being 26 ha of conservation lands managed by the Town.

726, 30 and 32 Berczy Street are currently each occupied by one-storey detached dwellings fronting onto Berczy Street. 34 Berczy Street, which forms part of the same parcel as 38 Berczy Street, is currently occupied by a two-storey commercial building which was formerly part of the T. Sisman Shoe Factory (“Shoe Factory”), which closed around 1978. 38 Berczy Street is currently occupied by a one-storey office building, which was also part of the former Shoe Factory complex.

SETTLEMENT PROPOSAL

8The settlement reached between the Town and Applicant proposes the development of a nine-storey, E-shaped, mixed-use building, including 545 residential units and vehicular access via Mosley Street (the “Settlement Proposal”). The proposed building will transition through a series of step backs at the rear of the building, ranging from a 7.5 m setback at the rear property line to the fourth storey podium, 9 m for the fifth to eighth floor and 25 m to the ninth floor.

9Access to the building will be gained from Mosley Street via a rear private driveway and the design includes short term parking, loading areas, underground parking, and bike spaces. In recognition of the adjacency of the Aurora GO Station to the Subject Lands, the parking rate has been reduced from 0.75 spaces per unit to 0.33 spaces per unit.

10The building will incorporate design features commemorating the former Shoe Factory, including architectural style, urban design elements, and a commemorative plaque. The Town will repeal the heritage designation by-law on 34 Berczy Street.

PLANNING EVIDENCE

Planning Act

11It was the opinion of Mr. Quarcoopome that the Settlement Proposal had appropriate regard for the elements under section 2 of the Act. In particular, he noted that the proposed development leveraged access to existing transit, ensured a variety of housing stock was provided in an area with limited apartment housing, and supported growth in the Town and Region of York.

Provincial Policy Statement, 2020

12Mr. Quarcoopome’s review of the policies of the Provincial Policy Statement, 2020 (“PPS”) concluded that the Settlement proposal was consistent with the PPS. The Planner opined that the proposed compact development was consistent with the PPS as it was within an existing settlement area and was an efficient land use that would accommodate and contribute to a mix of housing types. Furthermore, it would support the optimization of existing infrastructure and represents transit-supportive development.

13Mr. Quarcoopome’s Affidavit noted that policy 2.6 of the PPS prohibits development or site alteration of protected heritage property without ensuring that the heritage attributes of the protected heritage property will be conserved. The Planner stated in his written evidence that 34 Berczy had been deemed by the Town not to have heritage value. This was supported by the Applicant's Heritage Impact Study and the statement of the Town’s Counsel at the hearing event.

Growth Plan for the Greater Golden Horseshoe, 2019 (as amended)

14In the Planner’s opinion, the Settlement Proposal conformed with the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and was an appropriate development of underutilized lands that would contribute to minimum intensification and density targets. Mr. Quarcoopome stated that the Subject Lands could accommodate such higher-density residential use and that existing stormwater, water, and sewage infrastructure would be utilized to accommodate the proposed intensification with site specific stormwater management designed by a qualified professional. Lastly, the Planner noted that the site was located within a strategic growth area and its proximity to existing high-order transit supported the transportation objectives of the Growth Plan.

Region of York, Official Plan, 2010

15The York Region Official Plan, 2010 (“YROP 2010”) identifies the Subject Lands within the “Urban Area”. To Mr. Quarcoopome, the Subject Lands location is where intensification and growth is directed for the Town and that the Settlement Proposal would result in residential intensification within the built-up area near a Regional Corridor. He opined that the built form would add to the range of housing types available in the community and the increased density will increase the ridership base for transit and customer base for surrounding businesses. The Planner also noted that the York Region Official Plan, 2022 (“YROP 2022”), came into effect after the subject application were submitted and therefore did not apply to the application. However, Mr. Quarcoopome testified that the Settlement Proposal conformed with both the YROP 2010 and the YROP 2022.

Town of Aurora Official Plan, 2010

16To the Planner, the Town of Aurora Official Plan, 2010 (the “AOP”) is outdated, in the sense that it does not reflect the latest provincial and regional policy direction, and on this basis a greater degree of intensification than what is described in the AOP is appropriate for the subject site. Mr. Quarcoopome’s testimony was that the Settlement Proposal would provide a mix of housing options and the mixed-use aspect of the development, including the urban public square and at-grade retail use, would contribute to a complete community. In his view, the Settlement Proposal conformed with the AOP and would introduce an appropriate form of residential housing to an area which is predominantly made-up of low-rise detached dwelling units.

Zoning By-law 6000-17

17At present, the Subject Lands are zoned ‘Service Employment – E1(10) Zone’ which permits commercial, industrial, and institutional land uses, but does not include permissions for residential uses. Exception 10 permits additional uses consistent with the permitted employment uses. As such, a zoning by-law amendment is required to permit the Settlement Proposal. The amendment would rezone the lands to Promenade Downtown to align with the land use policies of the AOP.

18In summary, Mr. Quarcoopome recommended that the Tribunal approve the elements of the Settlement Proposal as, in his opinion, it had appropriate regard for matters of provincial interest and, in general, constituted good land use planning.

PARTICPANT STATEMENTS

19The Tribunal asked Mr. Quarcoopome if he had reviewed the Participant Statements filed on this Appeal. He acknowledged that he had. Mr. Quarcoopome pointed out that the Subject Lands are not located within the area marked ‘Stable Neighbourhoods’ in the AOP and as such, the Stable Neighbourhoods policies and guidelines did not apply to this application.

20Mr. Quarcoopome drew the Tribunal’s attention to the fact that the original application was for a fourteen-storey building which had been reduced to nine storeys in the Settlement Proposal. The Planner noted that there would be no windows at the rear of the proposed building from the fifth to ninth storey in order to mitigate overlook and privacy impacts for the low-rise residential area located behind the Subject Lands. The rear setbacks from the fourth to nineth storey were also designed to provide an appropriate transition to the lower-density residential neighbourhood located along Larmont Street. In addition, the Planner pointed out that the balconies at the rear of the building from the original design were removed and the roof top amenity space would utilize green roof elements and other screening and separation design elements so that the focus of the roof top terrace is towards Berczy Street and not Larmont Street.

ONTARIO HERITAGE ACT

21The repeal of Heritage By-law 6439-22 is governed by the OHA, as it read on June 30, 2021, pursuant to O.Reg 385/21. The criteria for determining cultural heritage value or interest (“CHVI”) are set out in O.Reg 9/06. The case law on the repeal of a designation is well-established and the appropriate test for the Tribunal to apply is “whether the property retains cultural heritage value or interest, as described in the designating by-law, and as prescribed by O. Reg 9/06.” (Trothen v. Sarnia (City), 2016 CanLII 29998 at para 53 and Ferron v. Niagara Falls (City), 2021 CanLII 23950 at para 24).

22As noted by Member Nelson in Chisholm v South Stormont (Township), 2022 CanLII 32470 (para 25), the jurisdiction of the Tribunal in such matters is limited to the consideration of whether a property has CHVI. The Tribunal’s report must be considered by a municipality, but the municipality is not bound by it. As such, a municipality is free to consider many other issues in relation to the designation or repeal of designation of a property.

23The Applicant submitted a Heritage Impact Assessment, as part of its original development application, with a request to remove the lands from the Town’s heritage registry. On June 7, 2021, the Town’s Heritage Planning staff provided a report to the Heritage Advisory Committee recommending the removal of the lands from its heritage designation. The heritage designation was removed from 26, 32, and 38 Berczy Street in July 2022, however, Heritage By-law 6439-22 was passed for 34 Berczy Street, placing it on the Aurora Register of Properties of Cultural Value or Interest.

24Chantal DeSereville, Counsel for the Town, stated at the hearing that the Town had reconsidered its position on the heritage value of 34 Berczy Street and deems it to be in the public interest to remove the designation, given the fact that a settlement had been reached with the Applicant.

FINDINGS

25The Tribunal has considered the totality of the evidence before it and accepts the uncontroverted expert land use planning evidence and opinions of Mr. Quarcoopome. The Tribunal is satisfied that the OPA and ZBLA have due regard for matters of provincial interest, are consistent with the PPS, and conforms with the Growth Plan, YROP 2010, and AOP.

26The Tribunal finds that the Settlement Proposal leverages existing and planned investments in transportation infrastructure and that the increase in residential density on a site located adjacent to a GO Station is an appropriate location for redevelopment. The setbacks from the fourth storey podium, fifth to eight floor and ninth storey pull the massing away from the rear of the building and will mitigate overlook and privacy concerns raised in the Participant Statements. In summation, this is an appropriate redevelopment of the land with a compact built form that meets the general intent and purpose of the applicable official plans and represents good land use planning that is in the public interest.

27As it was provided with no evidence to the contrary, the Tribunal is satisfied that 34 Berczy Street has no cultural heritage value or interest and as such it is appropriate for the Town to repeal Heritage By-law 6439-22.

28With respect to the proposed conditions and the withholding of the Tribunal’s Final Order, Mr. Quarcoopome opined that there were appropriate measures to ensure that the development was built as envisioned by the Settlement Proposal. There were no other comments or concerns raised with respect to the conditions. The Tribunal finds that it is appropriate to withhold the Final Order until the conditions outlined in paragraph [30] have been fulfilled to its satisfaction.

INTERIM ORDER

29THE TRIBUNAL ORDERS THAT the appeal is allowed on an interim basis, contingent upon receipt of those pre-requisite matters identified in paragraph [30] below, and that the draft Official Plan Amendment and draft Zoning By-law Amendment set out in Attachments 1 and 2 to this Interim Order are hereby approved in principle.

30The Tribunal will withhold issuance of its Final Order contingent upon confirmation from the Town of Aurora of the following pre-requisite matters:

a. The Tribunal shall be in receipt of confirmation from the Town of Aurora that the Applicant has provided an updated Transportation Impact Study to reflect the increased density in the Settlement Proposal; and

b. The Tribunal shall be in receipt of confirmation from the Town of Aurora that the Applicant has provided an updated Functional Servicing Report to reflect the increased density in the Settlement Proposal;

c. The Applicant and Town of Aurora shall submit to the Tribunal, on consent, the final form of the Official Plan Amendment and Zoning By-law Amendment necessary to facilitate the Settlement Proposal.

31If the Parties do not submit the final form of the Official Plan Amendment and Zoning By-law Amendment(s), and provide confirmation that the contingent pre-requisites to the issuance of the Final Order, set out in paragraph [30], have been satisfied, and do not request the issuance of the Final Order, by Friday, May 31, 2024, then the Applicant and the Town shall provide a written status report to the Tribunal by that date as to the timing of the expected confirmation and submission of the final form of the Official Plan Amendment and Zoning By-law Amendment(s) and request for issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event that the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, then the Tribunal may then dismiss the Appeal.

32The Member will remain seized for the purposes of reviewing and approving the final form of the Official Plan Amendment and Zoning By-law Amendment and the issuance of the Final Order.

33The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument and the satisfaction of the contingent pre-requisites to the issuance of the Final Order.

“G.A. Croser”

G.A. CROSER 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.

Attachments 1

Attachments 2