Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 3, 2023 CASE NO(S).: OLT-22-002839 (Formerly PL180323)

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

Applicant/Appellant: 632025 Ontario Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of a subdivision with 34 units Reference Number: Z-0217-03 Property Address: 13330 Dufferin Street Municipality/UT: King/York OLT Case No: OLT-22-002839 Legacy Case No: PL180323 OLT Lead Case No: OLT-22-002839 Legacy Lead Case No: PL180323 OLT Case Name: 632025 Ontario Limited v. King (Township)

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

Applicant/Appellant: 632025 Ontario Limited Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit the development of a subdivision with 34 units Reference Number: 19T-17K01 Property Address: 13330 Dufferin Street Municipality/UT: King/York OLT Case No: OLT-22-002840 Legacy Case No: PL180324 OLT Lead Case No: OLT-22-002839 Legacy Lead Case No: PL180323

Heard: September 29, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
632025 Ontario Limited	Marisa Keating, Signe Leisk (in absentia)
Township of King	Paula Boutis, Tom Halinski (in absentia)
Regional Municipality of York	Samantha Whalen, Bola Ogunmefun (in absentia)
Toronto and Region Conservation Authority	Matthew Rutledge, Tim Duncan (in absentia)
King City East Landowners Group (Party)	Chris Barnett
King Rocks Developments CR Inc.	Nicholas Macos

MEMORANDUM OF INTERIM ORAL DECISION DELIVERED BY BITA M. RAJAEE ON SEPTEMBER 29, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a merit hearing in the matter of the appeals by 632025 Ontario Limited (“Applicant”) against the failure of the Township of King (“Township”) to make decisions with respect to applications to rezone and grant a draft plan of subdivision. These proceedings were commenced under s. 34(11) and s. 51(34) of the Planning Act (“Act”). A Zoning Bylaw Amendment and Draft Plan of Subdivision (“Applications”) were submitted to facilitate the development of 13330 Dufferin Street in the Township (“Subject Property”) and accommodate a proposal incorporating 28 detached units organized on a common element condominium road.

2Three prior Case Management Conferences (“CMC”) have taken place on this matter. Prior to the merit hearing, the Parties confirmed that a settlement had been reached and the agreement would be presented to the Tribunal for approval.

SITE AND AREA CONTEXT

3The Subject Property, legally described as Part of Lot 8, Concession 3, is located on the west side of Dufferin Street, north of the rail line, in the Township. It is vacant, but currently farmed, and is approximately 4.9 hectares in size. The site is bisected by natural heritage features, including a watercourse, wetland and vegetated areas. Currently, access to the Subject Property is provided by a driveway from Dufferin Street that traverses the north end of the Subject Property.

4In the Subject Property’s immediate context are:

a. To the east is the Country Day School, a private school. There is also a rural residence to the south of the school.

b. To the north are a series of residences and one small commercial use.

c. To the west are farmland and natural heritage features.

d. To the south are additional residences and a stream corridor. Further south, across the rail line, are Somerville Co. Limited (a contractor firm) and the Alpha Timber Mill. At the northwest corner of Dufferin Street and King Road, a commercial development contains a gas station, restaurants, banks, a supermarket and other commercial stores and offices.

5The Subject Property is within the Township’s Village Boundary, designated Neighbourhood and subject to a Site-Specific Policy Area, as shown on Schedule “D1 Village of King City Land Use Designation” of the Township’s Official Plan, Our King Official Plan 2019 (“Township’s OP”). Single detached dwellings are permitted within this designation. The Subject Property is part of a broader area in the northeast portion of the Township that is largely undeveloped but has undergone a comprehensive planning process and is currently in the process of being developed for urban uses.

6The Applicant is required to join the King City East Landowner’s Group as a condition of draft approval and to achieve Official Plan conformity. As discussed in further detail below, the Subject Property has been incorporated in the King City East Functional Servicing/Development Area Study prepared by the King City East Landowners Group.

APPLICATION HISTORY AND THE PROPOSAL BEFORE THE TRIBUNAL

7The Applications were initially submitted in 2017 and consisted of 34 single detached lots (“2017 Plan”). The subsequent iteration of the Applications, submitted to the Township in 2019, consisted of 28 single detached lots (“2019 Plan”), and was revised to respond to comments raised by the Township and other parties.

8The Applications before the Tribunal, as outlined in the Plan for Subdivision dated June 16, 2022 (“2022 Plan”) include a similar overall layout to the 2019 Plan, and the number of proposed lots (28) has remained the same. Significant changes as compared to the 2019 Plan include:

a. Update to the stormwater management strategy and stormwater management blocks;

b. Update to delineate the boundary of the Natural Heritage System, Common Element Condominium Road and grading for the road leading to the bridge crossing in separate blocks;

c. Introduction of a multiuse trail along the northern boundary of the Subject Property; and

d. Widening of the landscape buffer along the western property line from 1.0 to 2.5 metres (“m”).

9The Parties advised that some of the key settlement issues that have been agreed upon through discussions with various parties were as follows:

a. In response to a request by the neighbouring property owner to the west, King Rocks Developments CR Inc., (“King Rocks”), the landscape buffer along the western lot line was widened from 1.0 m to 2.5 m. The landscape buffer provides an appropriate transition between the Common Element Condominium Road on the Subject Property, to what will likely be rear yards on the currently undeveloped property to the west.

b. The 2022 Plan allows for the creation of an emergency access connection from the Common Element Condominium Road on the Subject Property to the property to the west (King Rocks) as shown in the broader plan produced by the King City East’s Landowner Group, and as required by the Township as a condition of draft plan approval.

c. The conditions to the 2022 Plan also include a requirement that the owners of the Subject Property join the King City East (North) Landowners Group, addressing comments raised by the King City East (North) Landowners Group, King Rocks and the Township.

d. Comments raised by the TRCA have been resolved through an increase to the Natural Heritage blocks, technical updates to stormwater treatment on the Subject Property and revised draft plan conditions.

e. The Region’s concerns, primarily related to access to Dufferin Street and the separation distance between such access and intersections to the north, have been addressed through one southern entrance to the Subject Property from Dufferin Street, as illustrated in the revised draft plan.

f. With the proposed reduction of units, confirmation that the Subject Property has been incorporated in the King City East Functional Servicing/Development Area Study prepared by the King City East Landowners Group, confirmation that the Subject Property is part of the King City East Landowner’s Group boundaries, and changes to the site-specific By-law standards, the Township’s concerns with respect to density have been addressed.

10Two versions of the Zoning By-law were prepared and presented to the Tribunal:

a. One version is an amendment to the existing Zoning By-law 74-53. The second version is an amendment to the new Zoning By-law 2017-66, which is under appeal for all lands marked as “F-Future Use”, which applies to the Subject Property. Accordingly, an amendment has been prepared to both Zoning By-laws.

b. The ZBA Application was updated to reflect both the revised 2022 Plan as well as revisions stemming from discussions with the Township. The draft ZBA originally submitted with the Applications included one set of provisions that applied equally to all lots on the Subject Property, whereas the revised versions, at the request of the Township, include separate zones and zone provisions which apply to differing lot sizes. Other updates made in response to comments raised by the Township include, but are not limited to, the following:

i. The minimum front yard setback was increased from 4 m to 4.5 m;

ii. The minimum interior side yard setback was updated to be 1.2 m on both sides, instead of 0.6 m to one side lot line and 1.2 m on the other side lot line;

iii. The minimum exterior side yard was increased from 3 m to 3.5 m on the 18 m wide exterior lot; and

iv. A maximum lot coverage of 40-50% (depending on the lot size) was introduced.

THE HEARING

11In support of the settlement agreement reached between the Parties, the Applicant called one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty form for Mr. Paul Lowes. Mr. Lowes was qualified, without objection, to provide expert opinion evidence in the field of Land Use Planning.

12It was the professional planning opinion of Mr. Lowes that the revised Applications are consistent with the Act, have had appropriate regard for matters of Provincial Interest, and conform to all applicable provincial policies and plans.

The Planning Act

13It was Mr. Lowe’s opinion that the Applications, and the 2022 Plan, have regard for matters of provincial interest under s. 2 of the Act, which the Tribunal must consider. Specifically, the revised Applications have regard to s. 2(a)(f)(h)(p) and (r)(ii).

14S. 51 (24) of the Act lists the matters that plans of subdivision shall have regard to. Mr. Lowes testified that the 2022 Plan satisfies the matters outlined under s. 51(24).

Provincial Policy Statement 2020 (“PPS”)

15In accordance with s. 3(5) of the Act, all decisions made on or after May 1, 2020, that affect a planning matter are required to be consistent with the PPS.

16Mr. Lowe testified that the 2022 Plan and the revised ZBA are consistent with the PPS. Specifically, the Applications are consistent with the PPS policies related to: directing growth to Settlement Areas (1.1.2, 1.1.3.1); promoting efficient use of land through the proposed density (1.1.1(a), 1.1.3.2(a), 1.4.3(d)); promoting efficient use of infrastructure by developing in an urban area where services are planned (1.1.3.2(b), 1.4.3(c), 1.4.3(d); supporting alternative modes of transportation, through the provision of a multi-use trail on site, (1.1.3.2(e), 1.5.1(a) and (b)); and protecting natural features (1.1.1(h), 1.2.1(c), 1.5.1(d), 2.1 and 2.2).

A Place to Grow: A Growth Plan for the Golden Horseshoe 2020 (“Growth Plan”)

17All decisions by an approval authority that affect a planning matter shall conform with the Growth Plan, subject to any legislative or regulatory provisions providing otherwise.

18Mr. Lowe testified that the revised Applications are in conformity with the “Growth Plan, and specifically, with policies related to: directing growth to Settlement Areas (2.2.1.2); meeting growth density targets of 50 residents and jobs combined per hectare (2.2.7.2(a), 4.2.10.1(a)); coordinating development with existing and planned infrastructure by developing in an urban area where services are planned (2.2.1.2(a)(ii), 2.2.1.3(c), 3.2.1.1, 3.2.6.2(b); promoting complete communities, including access to public service facilities, stores and services (2.2.1.2(a)(iii), 2.2.1.4(a), 2.2.1.4(d)(ii), 2.2.7.1(a); supporting alternative modes of transportation, through the provision of a multi-use trail on site (2.2.1.4(d)(i), 2.2.1.4(d)(iii), 2.2.7.1(b) and 4.2.10.1(b); and protection of natural features (2.2.1.3(d), 4.2.2.6).

Oak Ridges Moraine Conservation Plan 2017

19Mr. Lowes opined that the revised Applications are consistent with the policies of the Oak Ridges Moraine Conservation Plan. Specifically, the revised Applications conform with policies related to: development having minimum encroachment and impact on natural heritage features by zoning the natural heritage and features, as well as their buffers, as Environmental Protection Zone (18.1.a/b); urban development being consistent with the growth management strategies as set out in the local municipal policy (18.1.c); and restriction of development and site alteration in natural heritage features and hydrologically sensitive features and their minimum vegetation zones, with the exception of infrastructure/utilities (41(5)).

York Region Official Plan 2010 (“Region’s OP”)

20Mr. Lowes testified that the revised Applications conform with the Region’s OP, and specifically, with the policies related to:

a. New development in Towns and Village being comprehensively planned, including with regards to servicing, achieved through the coordinated planning done by the King City East Landowners Group, which comprehensively planned this quadrant of King City (policy 5.6.22);

b. Minimum of 50 residents and jobs per hectare density as discussed above (policy 5.6.22(c));

c. Protection of the natural features on the Subject Property through the Environmental Protection zoning, in conformity with the Greenland System policies (Chapter two policies);

d. Protection of the efficiency of Regional roads by minimizing the number of accesses (policy 7.2.53);

e. Full servicing of the site (policy 7.3.15); and

f. A high standard of urban design, by fostering a sense of place and complementing the existing character of the community, as well as appropriately transitioning and ensuring harmony with the adjacent areas. This is achieved through appropriate development standards, in this case, by way of the ZBA (policy 5.2.8).

Our King Official Plan 2019 (“Township’s OP”)

21Mr. Lowes testified that an Official Plan Amendment is not required to facilitate the proposal before the Tribunal, as the revised Applications, and the 2022 Plan, are in conformity with the Township’s OP. Moreover, the revised Applications conform with the King City Community Plan (OPA 54) as amended by OPA 89 that were in effect at the time the Applications were submitted. The latter has been carried forward in the Village Site Specific-Policy Area 1 of the Township’s OP. Mr. Lowes cited a number of policies from both the Township’s OP and OPA 54 that the Applications conformed with.

22Of note, Mr. Lowes stated that the permitted density is an average gross density of 7.0 units per hectare, applied to all non-developed lands (policy 7.7.3 of OPA 54 as amended by OPA 89 and policy 5.17.1 of the Township’s OP). The proposed density of the 2022 Plan is approximately 9.0 units per hectare, excluding Natural Heritage Features, but not buffers. However, the permitted density is required by the Township’s OP to be an average across the broader area. The average density for the King City East Landowners Group’s lands is 7.19 units per hectare. When the Subject Property is included with their lands, the average density increases from 7.19 units per hectare to 7.23 units per hectare, still in conformity with the Township’s OP. When other non-participating lands are eventually developed, the overall average density is expected to be in in the range of 7.21 units per hectare.

23Moreover, the Subject Property is considered to be an appropriate location for the density proposed owing to its location, which is on a major arterial road where higher densities should be considered to support future transit and active transportation. Moreover, it is located within walking distance to commercial areas and schools.

Zoning By-Law Amendments (“ZBA”)

24A ZBA is required to facilitate the proposal. Mr. Lowes explained that the Township has two Zoning By-laws that apply to the Subject Property that are currently in effect: King City and Schomberg Urban Area Zoning Bylaw No. 2017-66 (“ZBL 2017-66”) and Zoning By-law No. 74-53 ("ZBL 74-53”). Accordingly, Mr. Lowes explained that two ZBAs are required and have been prepared.

25The property is zoned Future Use (F) Zone and Environmental Protection (EP) in ZBL 2017-66 and Rural General (RU1) Zone, and Environmental Protection (EP) Zone in ZBL 74-53.

26The ZBAs zone the Subject Property for residential uses through site specific exceptions of the R1A and R1B Zones which address minimum lot areas, frontages and setbacks, as well as maximum lot coverage for the lots, reflective of their size and shape.

27Mr. Lowes summarized that the proposed R1A exceptions for the Subject Property, in comparison to the existing R1A Zone in ZBL 2017-66, provides for the following:

a. An increase or decrease in the minimum lot area from the 450 m required, depending on the lot, to generally reflect the actual sizes of the lot;

b. Maintaining the existing minimum lot frontage of 15 m except for two uniquely shaped lots which have a required minimum 17 m frontage;

c. Maintaining the minimum front yard setback of 4.5 m required in the R1A Zone;

d. Maintaining the minimum rear yard setback of 7.5 m required in the R1A Zone, except for two uniquely shaped lots which have a required minimum 6 m rear yard;

e. Reducing the interior side yard requirement from 1.5 m to 1.2 m;

f. Reducing the exterior side yard requirement from 4.5 m to 3.5 m; and

g. Increasing the permitted lot coverage from 35% to 40-50%, depending on the lot size.

28In comparison to the existing R1B Zone in ZBL 2017-66, the proposed R1B exceptions for the Subject Property generally:

a. Establish a minimum lot area of 345 square metres for new lots since the existing R1B Zone does not address minimum lot area for new lots, rather it simply recognises the size of any existing lots;

b. Maintain the existing minimum lot frontage of 12 m;

c. Reduce the minimum front yard setback from 6 m to 4.5 m;

d. Increase the minimum rear yard setback from 6 m to 7.5 m;

e. Reduce the interior side yard requirement from 2.4 m to 1.2 m;

f. Reduce the exterior side yard requirement from 4.5 m to 3.5 m; and

g. Increase the permitted lot coverage from 45% to 50%, depending on the lot size.

29As the developable portion of the Subject Property is zoned Rural General (RU1) under ZBL 74-53, an amendment is required to rezone the property for residential uses with a site-specific exception setting out the same lot standards as described above at paragraphs [27] and [28] of this Decision.

30Mr. Lowes stated that the performance standards proposed in the ZBA facilitate the development of 28 lots. As discussed above, the development of 28 lots meets the density requirements laid out in OPA 89 and conforms to the Township’s OP.

31Further, Mr. Lowes opined that the proposed built form standards are appropriate for modern development, especially when considered in relation to recently approved developments in the Township, while still meeting the character and design intent for the community as set out in the Township’s OP.

32In terms of minimizing impact on natural features, this is achieved by zoning the natural heritage features and their buffers as Environmental Protection Area.

33Lastly, in terms of character, Mr. Lowes stated that with the exception of two uniquely shaped lots, the lots have a minimum front yard setback of 4.5 m and a minimum rear yard setback of 7.5 m, consistent both with the R1A Zone in ZBL 2017-66, and with the zoning approved on many of the lots planned in the northwest corner of the Township owned by the King City East Landowner’s Group. Similarly, the minimum interior side yard setback (1.2m) and the maximum lot coverage (40-50%) generally reflect what is planned for many of these surrounding developments. Thus, the proposed built form standards proposed in the ZBAs are consistent with the policy direction provided in the Township’s OP. The revised Applications balance the requirement to align with the character of existing development and community while also achieving compact development withing the local context.

Draft Plan Conditions

34A number of conditions, specifically 174 conditions, have been proposed to be attached to the 2022 Plan. Mr. Lowes opined that this list of draft plan conditions are reasonable, having regard to the nature of the proposed development, in accordance with s. 51(25) of the Planning Act.

Conclusion

35Mr. Lowes concluded that the revised Applications are consistent with the PPS, conform to the Growth Plan, Oak Ridges Moraine Plan, the Region’s OP and the Township’s OP, and have appropriate regard for matters of Provincial Interest. He further summarized that the revised Applications are appropriate, desirable, represent good planning, and are in the public interest. Lastly, Mr. Lowes stated that the draft plan conditions are reasonable, appropriate, and implementable.

FINDINGS AND DISPOSITION

36The Tribunal is satisfied by the evidence provided by Mr. Lowes, through his uncontroverted testimony. The Tribunal finds that the proposed ZBAs, the plan for subdivision they will permit, and the development of the Subject Property as proposed align with good land use planning, satisfy all legislative tests as detailed above, and warrant approval.

37In particular, the proposal represents an efficient, transit supportive development. The Tribunal is satisfied that the proposed ZBAs, as well as the conditions proposed, implement the development of the Subject Property in the manner being proposed.

INTERIM ORDER

38THE TRIBUNAL ORDERS that:

a. The appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in section (e) of this Order, below, and the Zoning By-law Amendments set out in Schedules A and B to this Interim Order are hereby approved in principle. For further clarity:

i. The Corporation of the Township of King Zoning By-law No. 74-53, as amended, is hereby amended in the form attached as Schedule A to this Order; and

ii. The Corporation of the Township of King Zoning By-law 2017-66, as amended, is hereby amended in the form attached as Schedule B to this Order.

b. The Tribunal authorizes the municipal clerk to format and assign new by-law numbers to Schedules A and B for record-keeping purposes, as may be necessary;

c. The Draft Plan of Subdivision, prepared by SGL Planning & Design Inc. and dated June 16, 2022, attached as Schedule C to this Order, is approved;

d. Pursuant to s. 51(56.1) of the Planning Act, the Tribunal delegates to the Township of King the authority to clear the conditions of draft plan approval and the authority to administer final approval of the plan of subdivision for the purposes of s. 51(58) of the Planning Act. In the event that there are any difficulties implementing any of the conditions of the draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

e. The Tribunal’s final Order is withheld pending the following:

i. Confirmation from the Township that an agreement prohibiting pre-sales has been entered into by the Applicant;

ii. Confirmation from the Township, Applicant and King Rocks Development CR Inc. that the draft plan is in final form, to the satisfaction of the Township; and

iii. Confirmation from the Applicant and King Rocks Development CR Inc. that all matters between the parties pursuant to Minutes of Settlement have been satisfied.

39The Panel Member is not seized by will remain available for case management.

“Bita M. Rajaee”

BITA M. RAJAEE 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.