Mod-Aire Homes Limited v. Bradford West Gwillimbury (Town), 2023 CanLII 1726

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 13, 2023

CASE NO(S).: OLT-22-002584 (Formerly PL170847)

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

Appellant: Mod-Aire Homes Limited

Subject: Proposed Official Plan Amendment No. BWG-OPA-1727

Municipality: Town of Bradford West Gwillimbury

OLT Case No.: OLT-22-002584

Legacy Case No.: PL170847

OLT Lead Case No.: OLT-22-002584

Legacy Lead Case No.: PL170847

OLT Case Name: Mod-Aire Homes Limited v. Bradford West Gwillimbury (Town)

Heard: October 14, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Mod-Aire Homes Limited

Bruce Engell

Town of Bradford West Gwillimbury

Leo Longo

County of Simcoe

Marshall Green (in absentia)

Milford Development Limited

Mark Flowers

DECISION DELIVERED G.C.P. BISHOP AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal has before it, two separate and distinct matters to dispense of today. The first is a proceeding commenced under section 23 of the Ontario Land Tribunal Act (the “OLTA”), resulting from a request for review of a Decision of Vice Chair Mary-Anne Sills dated April 7, 2022, involving a settlement hearing requested by the approval authority and the appellant party, being Mod-Aire Homes Limited (the “Original Settlement”). The requestor is the Non-Appellant party, Milford Development Limited (“Milford”). The second matter is to consider a further settlement request by all parties to this appeal.

2The Original Settlement hearing was the result of an appeal brought by Mod-Aire Homes Limited (“Mod-Aire”) from the passing of Official Plan Amendment No. 27 (“OPA 27”) for the Town of Bradford West Gwillimbury (the “Town”). The appeal was brought pursuant to s. 17(36) of the Planning Act.

3The lands subject to Mod-Aire’s appeal are a portion of the lands contained within OPA 27, generally located on the north side of Holland Street West and east of Professor Day Drive and form the “Western Gateway” into Downtown Bradford. The Western Gateway lands are under a number of ownerships: Mod-Aire (approximately 18 acres), Milford Development Limited (approximately 13 acres), Westin Homes Ltd. (approximately 1.4 acres), and three small parcels of land, one of which is in the ownership of a related party to Milford.

4There is a 30-metre-wide hydro corridor running in a north-south direction from Holland Street West to Northgate Drive included in Milford’s ownership. This Hydro corridor separates the Mod-Aire and Milford properties.

The Section 23 Review Process

5A request for review of the original settlement decision was submitted on May 6, 2022, by counsel for Milford. The Tribunal reviewed this request and requested response and reply submissions from the parties. A response submission was received on June 21, 2022 from the Town, with the reply submission being submitted by Milford on June 24, 2022.

6In a nutshell, Milford's objection relates to the panel Member’s application of Rule 8.3 of the Tribunals Rules of Practice and Procedure. As stated before, Milford is a Non-Appellant party to this matter that was settled between the Town and the only Appellant party, being Mod-Aire.

7The Tribunal considered the contents of the submissions from the parties and the potential willingness of the Town to consider mediation. Mod-Aire did not respond to the original request for review but in a letter from the Tribunal dated July 11, 2022, the Tribunal suggested that mediation may be an opportunity for a fair, just, expeditious and cost-effective resolution of this matter. The active participants in the mediation were the Town and Milford.

8Following successful Tribunal lead mediation sessions held on August 15 and 19, 2022, all parties agreed to resolve the Request for Review and the Motion for Leave to Appeal through modifications to Policies 3.4.4.3 and 5.3.11 (d) (the “settled modifications”) executed through Minutes of Settlement in September 2022.

9In order to deal with the settled modifications, it is the Tribunal’s view that the s. 23 request for review of the previous decision must be dealt with in advance to give the Tribunal jurisdiction to consider these modifications.

10Pursuant to s. 3(4) of the OLTA, I have been delegated authority by the Interim Chair of the Ontario Land Tribunal to dispose of all aspects of the Request.

11In order to assist the Tribunal making a determination, a sworn Affidavit of Allyssa Hrynyk, a Registered Professional Planner, was supplied on October 4, 2022. The request of the parties is to rescind the original order and accept the new settlement offer containing the settled modifications.

12By the authority vested in this Member by the Interim Chair of the Tribunal, the Tribunal rescinds the original settlement and Order, dated April 7, 2022.

13To allow this Member to gain jurisdiction over the settled modifications the Tribunal orders that the rescinding of this order is effective immediately pursuant to Rule 24.3 of the Tribunals Rules of Practice and Procedure.

14The Tribunal wishes to be clear that, in no way, by rescinding the original settlement and Order, dated April 7, 2022, is there any judgment assumed with respect to the appropriate application of Rule 8.3.

The Hearing on the Revised Modifications

The Proposed Policy Modifications

15Ms. Hrynyk was accepted, by the Tribunal, to give expert opinion evidence in the area of land use planning and she referred to the contents of her Affidavit, which was marked as Exhibit 1. She reviewed the settled modifications for Policy 3.4.4.3 relating to additional population in downtown Bradford and the proposed settled modifications to Policy 5.3.11 (d). Ms Hrynyk reviewed these policy amendments which expanded on Policy 5.3.11(d) into 5 subcategories that focus on: Development Components and Studies, Urban Design Requirements, Transportation Networks, Block Size Policies and Phasing Policies.

16Ms. Hrynyk opined that the proposed modifications to Policy 5.3.11(d) and the minor modification to Policy 3.4.4.3 are:

a. Consistent with applicable policies of the Provincial Policy Statement, 2020;

b. Conform to applicable policies of A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”);

c. Conform to applicable policies of the Simcoe County Official Plan, 2016; and

d. Are appropriate and represent good planning.

17Alan Wiebe, Manager of Community Planning with the Town also participated in the settlement discussions and supplied the Tribunal with his sworn Affidavit dated October 7, 2022, marked as Exhibit 2. Mr. Wiebe was also accepted by the Tribunal to give expert opinion evidence in the area of land use planning and confirmed his opinion to be in alignment with Ms. Hrynyk evidence and recommended the Tribunal approve the settled modifications to OPA 27.

18The Tribunal agrees with Ms. Hrynyk and Mr. Wiebe that the settled modifications to Policy 5.3.11 (d) represent appropriate requirements to guide future development of the Western Gateway and represent good planning. The Settled Modifications are consistent with the Provincial Policy Statement and are in conformity with the Growth Plan and Simcoe County Official Plan which direct growth to settlement areas and encourage intensification, mixed-use and a variety of housing forms. The settled modifications also include the minor amendment to Policy 3.4.4.3 all of which are appended as Attachment 1 to this decision.

Findings and Disposition

19The Tribunal finds that the amendment to Policy 3.4.4.3 is minor and for the purpose of clarification. The addition of 2700 residents within Downtown Bradford are anticipated within a planning horizon between 2016 and 2031 whereas the original wording was open ended to be some unspecified time beyond 2016.

20The proposed amendments to Policy 5.3.11(d) recognize that these lands are bisected by an existing hydro services corridor and the development of the lands on either side of this corridor, although may be developed independently, must occur in an integrated and coordinated manner.

21The 5 subcategories, previously stated in paragraph 15 above, are listed in Policy 5.3.11(d) i through Policy 5.3.11(d) v, inclusive, in Attachment 1 to this Decision. These policies will assist in achieving the integrated and coordinated approach to the full build-out of these lands.

22Formal pre-consultation is required, supported by appropriate plans, studies, assessments, and reports, to adequately assess the distribution of land uses and transportation networks, all of which is echoed in the Pre-Application Consultation policies of Section 7.3 of this new Official Plan.

23An urban design brief is required to address urban design policies and demonstrate how a proposed development application has considered adjacent lands so that future development has not been compromised.

24Appropriate studies will be completed to flesh out vehicular and active transportation connections for the lands east and west of the hydro services corridor.

25Holland Street West is a primary arterial road and intensification corridor under the Town’s New OP and is planned to support greater intensities of development. These proposed amendments include block size policies to ensure the creation/preservation of larger blocks of land to assist in these intensification goals within specific areas.

26There are also phasing policies that will allow the rezoning of these larger blocks, intended for mixed use and higher densities, concurrently or prior to the internal development of these lands, thus assisting in the preservation of the intended use and densities on these intended larger blocks of land.

27The Tribunal finds, when considering all the proposed policy amendments, that proper consideration has been given to achieve a well designed and coordinated approach to the overall development of these lands and conforms and complies to all the statutory planning documents.

28The Tribunal commends the parties, with the assistance of the Ontario Land Tribunal mediation team, in working together on this matter to bring it to an amicable solution.

ORDER

29The Tribunal orders that the appeal is allowed in part, and Amendment No. 27 to the Official Plan for the Town of Bradford West Gwillimbury is modified as set out in Exhibit G to Ms. Hrynyk’s Affidavit and appended to this Decision as Attachment 1, and, as modified, is approved.

“G.C.P. Bishop”

G.C.P. BISHOP

ALTERNATE-CHAIR

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.

ATTACHMENT 1

Modifications to Subsections 3.4.4.3 and 5.3.11(d) in OPA 27

Subsection 3.4.4.3

3.4.4.3 Downtown Bradford is planned to accommodate an additional 2,700 new residents between the 2016 and 2031 planning horizon.

Subsection 5.3.11(d)

5.3.11 Special Policy Area – Professor Day Drive/Melbourne Drive to just west of Thornton Avenue (Western Gateway)

Lands between Professor Day Drive /Melbourne Drive to just west side of Thornton Avenue form the western gateway into Downtown Bradford. These lands represent a major intensification opportunity within the core of Bradford urban area, and are primed to become a focal point for life in the community. Where there is a conflict between the following additional policies and a policy elsewhere in this Plan, these policies shall apply:

(d) These lands are bisected by a corridor with an easement for hydro services, and the development of these lands shall occur in an integrated and coordinated manner, and lands respectively located on the east and west sides of the hydro services corridor may be developed independently, subject to demonstration of conformity with the following:

i. They shall contain a distribution of land uses and transportation networks that conform to all applicable policies of this Plan, and shall be supported by appropriate plans, studies, assessments, reports as determined through formal pre-consultation with the Town.

ii. Any development proposal for these lands shall: a) include an urban design brief that demonstrates conformity with all applicable urban design policies, and maintains the general intent of urban design guidelines; and b) demonstrate how the proposed development may be integrated with, and shall not prejudice the future development of, adjacent lands within this Special Policy Area.

iii. They shall include connection in their vehicular and active transportation networks. For the lands east of the hydro services corridor, such networks shall connect with Holland Street West in alignment with its existing intersection with Miller Park Avenue to the south. For the lands west of the hydro services corridor, such networks shall consider connection with Professor Day Drive in alignment with its existing intersection with the Bradford District High School site (i.e. 70 Professor Day Drive) to the west. The proposed networks shall be supported through appropriate studies.

iv. To enable development of the lands to occur in the manner envisioned of the “Western Gateway” into Downtown Bradford, the development of lands in Special Policy Area 5.3.11 shall include the preservation of larger blocks of land adjacent to Holland Street West, to support the intensity of development identified in the policies of Section 5.3.11 to this Official Plan.

v. Further to Subsection 5.3.11(a) of the Official Plan, the Town may require that development proceed for a portion of the lands identified in Subsection 5.3.11(d)iv., above, prior to or concurrently with development of other lands owned by the proponent elsewhere in the Western Gateway lands. For the purpose of demonstrating conformity with Subsection 5.3.11(d)v., development means amendment to the Zoning By-law to implement use permissions and performance standards in conformity with this Plan.