1384341 Ontario Ltd. v. Carlton Place (Town), 2023 CanLII 23966

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 20, 2023

CASE NO(S).: OLT-21-001589

PROCEEDING COMMENCED UNDER section 12(2) O.Reg.173/16 – Refusal of the O.Reg. 173/16 Community Planning Permits.

Description: To permit for the proposed construction of seven residential units consisting of five townhome units and two semi-detached units

Reference Number: DP3-01-2021

Property Address: Block 4, Plan 27M-97

Municipality/UT: Carleton Place/Lanark

OLT Case No: OLT-21-001589

OLT Lead Case No: OLT-21-001589

OLT Case Name: 1384341 Ontario Ltd. v. Carlton Place (Town)

Heard: October 19 and 20, 2022 by video hearing

APPEARANCES:

Parties	Counsel
1384341 Ontario Ltd.	P. Osterhout, T. Stanton
Town of Carleton Place	S. Putnam, T. Fleming

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND INTERIM ORDER OF THE TRIBUNAL

Part One: Introduction

1This Appeal was brought by 1384341 Ontario Ltd. (the “Applicant/Appellant”) following the decision of the Council for the Town of Carleton Place (“Town”) to refuse to grant a Class 3 Development Permit (“Permit”) to permit the construction of seven residential units comprising five townhome units and two semi-detached units (“Development”) on the property known as Block 4, Plan 27M-97 in the Town (“Site”). The Site has an area of over 1,200 square metres, but only has approximately 15 metres of frontage along the north side of Taber Street. Due to its size and location on the street, the majority of Block 4 does not directly abut the public road. Thus, in seeking the Permit, the Applicant also proposed the use of a private driveway that would allow for the development of the full Site.

2This hearing was conducted by video hearing on October 19 and October 20, 2022, (“VH”) with written argument submissions of the Parties received on October 28, 2022, by the Tribunal.

3The materials before the Tribunal were:

(a) Joint Document Book, comprising 32 tabs and 412 pages;

(b) Development Permit By-Law 15-2015 of the Town (“DP Bylaw”), as amended, comprising 206 pages;

(c) October 12, 2021, memorandum from Ms. Nikki Dwyer to the Town Council Committee of the Whole, comprising 16 pages;

(d) Committee of the Whole Minutes, dated October 12, 2021, comprising 8 pages;

(e) Appellant’s visuals, comprising 4 pages;

(f) Appellant ’s Closing submissions, comprising 14 pages; and

(g) Town’s Written Submissions, comprising 10 pages.

Part Two: Summary of Decision

4Although the DP By-law process selected by the Town is relatively uncommon among Ontario municipalities, the applicable test for approval of this Development is not unique. As stated in the Town’s closing submissions, the test is:

…. that the proposed development must:

• Be consistent with the Provincial Policy Statement 2020 (“PPS”);

• Conform to the County of Lanark and Town of Carleton Place Official Plans;

• Be consistent with the Urban Design Criteria in section 13 and 14 of the DP By-law;

• Have no adverse impacts on adjacent properties that cannot be mitigated; and

• Constitute good planning.

(collectively, the “Test”)

5The Town chose to rely solely on the land use planning opinions of its Director of Development Services, Ms. Dwyer. Distilled to their essence, those opinions underlying the Town’s professed reasons for refusing to grant the Appellant’s development permit were in fact related to matters of urban design, architecture and anecdotal views expressed as to “fit” in relation to the Development.

6However, the Town chose not to call expert opinion evidence on matters of urban design and architecture and Ms. Dwyer, despite her obvious planning credentials, was not qualified to offer such opinions. Mr. David Blakely was the sole expert on architecture and urban design matters and he testified on behalf of the Appellant. Mr. Paul Black also provided land use planning opinion evidence on behalf of the Appellant. The Tribunal accepted the evidence of Mr. Blakely and Mr. Black to the extent of all differences with Ms. Dwyer’s views – their evidence was not successfully challenged on cross-examination.

7The Town did not correctly apply the Test and identified no sound rationale for the denial of the Permit. The applicable provisions of the DP By-law and the Official Plans (“OP”) of the County of Lanark and the Town do not support this denial and the Tribunal determined that the Permit ought to have been granted. Thus, the Tribunal grants the Applicant’s appeal.

Part Three: Evidence and Analysis

8As noted, the Town called Ms. Dwyer as its sole witness. Ms. Dwyer is the Director of Development Services for the Town. She is a registered professional planner by background, and an articulate, proficient witness. She was qualified by the Tribunal to provide opinion evidence solely on land use planning matters.

9In Ms. Dwyer’s opinion, the Development:

(a) was inconsistent with the PPS as it resulted in ‘too much intensification’ and represented ‘over-development’;

(b) failed to conform with the Town’s OP (although compliant with the OP of the County of Lanark) because it fails to ‘reflect’ the Town’s ‘small-town character’, because it failed to: mirror the form and design of adjacent residential buildings, because unlike the surrounding homes it did not feature large porches with doors at ground level; comprise houses built close to and facing the public street; achieve consistency in height and massing of buildings (i.e., 1-2 storeys); and contain design features like articulated facades, interesting and varied rooflines and large front yards;

(c) might not be able to accommodate adequate parking and “…introduces a degree of overlook that is not present in the Jackson Mills Subdivision and thus leads to a loss of enjoyment of the normal use of adjacent properties”;

(d) failed to respect principles of good planning because, as a 7-unit proposal, it: “…represents an incompatible increase in scale, and too great a difference in terms of urban design from the character of the neighbourhood.”

10The Appellant called two experts, Mr. Blakely and Mr. Black. Mr. Black is a registered professional planner with approximately 13 years of experience, now employed by a consulting firm, Fotenn. He was qualified by the Tribunal to provide opinion evidence on land use planning matters. Mr. Blakely is an architect with more than 40 years experience and was qualified by the Tribunal to provide opinion evidence on matters of architecture and design.

11Mr. Blakely rejected the conclusions reached by Ms. Dwyer and noted that the type of structure and dwelling represented by the Development is quite consistent with the adjacent residential areas. In fact, he pointed out that there are several townhouse complexes located in many residential areas in the Town, including one a short distance away in the neighbouring blocks.

12Mr. Blakely was of the expert opinion that the design of the townhouse dwellings is entirely compatible with the general mix of housing in the subdivision and, indeed, with many other similar modern subdivisions in the Town. He did not agree with Ms. Dwyer’s lay opinion as to the ‘large porches’ and other features of the modest surrounding single family homes and suggested that her conclusions as to the differences between the those dwellings and the Development were overstated, inaccurate and inconsistent with the urban design elements and guidelines set out in the Town’s OP.

13The Tribunal agrees with Mr. Blakely’s conclusions and noted that the Town chose not to tender qualified urban design and architectural evidence to counter Mr. Blakely’s opinions, which were not sucessfully challenged in cross-examination. In summary, Mr. Blakely also opined that:

(a) the architectural design of the proposed buildings of the Development implements strong horizontal features that align with identified datum points on abutting buildings, creating strong visual continuity between the proposed buildings and their surrounding context, integrating them into the fabric of the streetscape. Such continuous horizontal features are also emphasized in the Town’s OP policy 3 of s. 2.3, as an encouraged method of promoting pedestrian scale;

(b) the proposed design of the buildings makes use of cladding materials utilized throughout the community, specifically: stone, brick, and vinyl. The proposed buildings thereby replicate the predominant texture and colour pallet of the surrounding neighbourhood. Although Ms. Dwyer suggested that most buildings in the surrounding area have one to two types of siding, it is notable that the directly-abutting townhomes located to the east of the Site also have three types of siding, consisting of stone, brick and vinyl;

(c) the proposed buildings are designed and located in such a way that their proposed three-storey height fits comfortably within the neighbourhood. The height difference between a one- or two-storey building and a three-storey building is common and provides appropriate transition. Moreover, all three types are appropriately classified as “low-rise” buildings. Compatibility is further accomplished through the use of peaked roofs, which provide variation in height and the strong overhang of the roof on the Development, which visually reduces the height of the third storey. Additionally, the siting of the proposed buildings on the Site is set back slightly farther from the street than the abutting buildings, which serves to better align their vertical profile when viewed from the street; and

(d) therefore, the Development is well-integrated, complementary and compatible with the surrounding neighbourhood and abutting properties.

14The Tribunal noted that although some of the opinions expressed by Ms. Dwyer were present in the October 2021 staff report that she had earlier delivered to the Town’s Committee of the Whole, she had actually recommended the conditional approval of the Development approximately one year prior to the merits hearing in this proceeding. In that report, Ms. Dwyer stated:

(a) The lands to the west, east and south of the site are presently developed as bungalow and two storey townhomes, semi-detached and single detached dwellings. The lands to the north of the site are vacant and designated “Residential” in the Official Plan and Development Permit Bylaw (emphasis added)

(b) Having reviewed and assessed the proposed application, staff believes the proposal complies with the provisions of the Provincial Policy Statement 2020, conforms to the majority of the policies of the Official Plan and satisfies the intent of applicable sections of Development Permit By-law 15-2015 (emphasis added) and

(c) that the Permit ought to be conditionally approved subject to a number of conditions.

15Mr. Black’s planning opinion was also contrary to Ms. Dwyer’s testimony at the VH – although, the Tribunal noted that the only substantial apparent rationale for Ms. Dwyer’s VH testimony concerning the PPS and the Town’s OP described above in paragraph [9] derived from her views on urban design rather than on land use planning issues. In Mr. Black’s view, the Development was consistent with the PPS and the Town’s OP and he relied on the expert opinion of Mr. Blakely on urban design issues.

16Once again, as described above in paragraph [14], in Ms. Dwyer’s staff report to the Town’s Council, she did not express any concern with inconsistency with the PPS or the Town’s OP and her design concerns were not nearly as detailed or strongly expressed as during her viva voce testimony before the Tribunal. As was the case on urban design matters, the Town chose not to retain an independent outside expert to present land use planning evidence countering Mr. Black’s opinions. The Tribunal accepted Mr. Black’s evidence to the extent that it contradicted Ms. Dwyer’s opinions.

17In summary, Mr. Black opined that:

(a) the Development is consistent with the PPS and advances its policy objectives of promoting intensification of settlement areas and providing a full range of housing types and thus also has regard for matters of provincial interest as set out in section 2 of the Planning Act, R.S.O. c. P.13 (“PA”);

(b) the Development satisfies the Lanark County OP’s direction to intensify existing built-up areas and optimize the use of land in accordance with section 2.3.1.4 and 2.3.1.5, and contributes to a mix of housing types in conformity with s. 2.6 thereof;

(c) insofar as the Town’s OP is concerned, the policies in section 2 emphasize compatibility of built-form, pertaining to matters such as scale, massing and location of new development and do not dictate that the finer details of architectural design for new buildings are required to “mirror” existing development;

(d) the high-density residential policies set out in section 3.5.4 of the Town’s OP simply require that “the proposed design of [new high density] residential development is compatible in scale with the character of surrounding uses”, and are therefore intended to ensure that high-density developments are of an appropriate size and that they take their surrounding context into account – which is the case in respect of the Development;

(e) the Development conforms to the Town’s OP, both in terms of achieving a complementary design that is well-integrated into the existing neighbourhood and that meets the high-density residential policies of s. 3.5.4; and

(f) there are no significant or unmitigated impacts that are anticipated to arise from the Development and it represented good planning.

Part Four: Conclusions

18As noted, the Tribunal accepts the evidence of Mr. Blakely and Mr. Black on behalf of the Appellant wherever it conflicted with the evidence of Ms. Dwyer for the Town. The Tribunal therefore concludes that the Development has regard for all matters of provincial interest under the PA; is consistent with the provisions of the PPS; conforms to the DP Bylaw and both the Lanark OP and Town OP; and accords with principles of good planning.

19The Tribunal notes that in final written submissions counsel for the Appellant seeks an Order approving the Permit “subject to appropriate conditions generally as recommended by staff in the Staff Report prepared in response to the five-unit application… [of the Appellant]”. Similarly, the Town’s counsel submitted that “Should the Tribunal allow the appeal, the Town requests that it impose the conditions identified in the Recommendation section of the staff report concerning the five-unit proposal, including the condition that a condominium plan be registered for the proposal, to ensure development is achieved in accordance with the Applicant’s description of the proposal at the hearing.”

20The relevant conditions described above in paragraph [19] as set out in Ms. Dwyer’s October 2021 staff report were:

1. That the approval is granted for the development in accordance with the plans identified in a Development Agreement;

2. That all garbage will be stored within the garage until the time of private collection at which time it shall be collected at the end of each unit’s driveway;

3. That snow will be removed from the site after every significant snowfall and transported off-site;

4. That a wooden privacy fence be erected on the eastern property line to buffer the impact of headlights from the parked vehicles in the designated visitor spaces; and

5. That prior to the transfer of ownership of the units, the property shall be subdivided by a common elements plan of condominium in accordance with Section 50 of the Planning Act.

INTERIM ORDER

21THE TRIBUNAL ORDERS THAT the appeal is allowed, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [22] below.

22The Tribunal will withhold the issuance of its Final Order granting the Class 3 Development Permit (“Permit”) to permit the construction of seven residential units comprising five townhome units and two semi-detached units on the property known as Block 4, Plan 27M-97 in the Town (“Site”), contingent upon confirmation by the counsel for both Parties of the following pre-requisite matters:

(a) the Parties have entered into a mutually satisfactory development agreement with respect to the Development that addresses unit garbage storage and disposal, snow removal and storage, and the installation of a wooden privacy fence to be erected on the eastern property line of the Site; and

(b) the Applicant, prior to the transfer of ownership of the units in the Development, shall reach agreement with the Town of Carleton Place to subdivide the Site by way of a common elements plan of condominium in accordance with Section 50 of the Planning Act R.S.O. 1990, c. 13.

23The Panel Member will remain seized in the event that the Parties require assistance with the implementation of these Interim Orders and with respect to the issuance of the Final Order.

24If the Parties do not provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [22] above have been satisfied, and do not request the issuance of the Final Order, by Monday, July 31, 2023, the Parties shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and issuance. 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 Monday, July 31, 2023, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

25The Tribunal may, as necessary, arrange a further hearing event to determine any matters arising from the Interim Orders, the satisfaction of the contingent pre-requisites and the issuance of the Final Order, and to deal with any other matters relating to the implementation of the Interim Orders made herein.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-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.