Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 18, 2023
CASE NO(S).:
OLT-22-002511
(Formerly PL190402)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Cosmopolitan Homes
Subject:
Application to amend the Zoning By-law –Refusal or neglect to make a decision
Description:
To permit a 163-unit residential development
Reference Number:
Z5-19
Property Address:
49 and 57 Folkard Lane
Municipality/UT:
Prince Edward County/Prince Edward County
OLT Case No:
OLT-22-002511
Legacy Case No:
PL190402
OLT Lead Case No:
OLT-22-002511
Legacy Lead Case No:
PL190402
OLT Case Name:
Cosmopolitan Homes v. Prince Edward (County.)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject:
Site Plan
Description:
To permit a 163-unit residential development
Reference Number:
SP-01-19
Property Address:
49 and 57 Folkard Lane
Municipality/UT:
Prince Edward County/Prince Edward County
OLT Case No:
OLT-22-002512
Legacy Case No:
PL190403
OLT Lead Case No:
OLT-22-002511
Legacy Lead Case No:
PL190402
Heard:
January 16, 2023, by Video Hearing
APPEARANCES:
Parties
Counsel
2596172 Ontario Inc. o/a Cosmopolitan Homes
T. Fleming
County of Prince Edward
J. Savini, N. Chooback co-counsel
MEMORANDUM OF ORAL decision DELIVERED BY D. CHIPMAN ON JANUARY 16, 2023, AND INTERIM ORDER OF THE TRIBUNAL
1The Tribunal convened a settlement hearing on an appeal filed by 2596172 Ontario Inc. (“Cosmopolitan Homes” / “Applicant”) regarding the failure of the County of Prince Edward (“County”) to make a decision on an application for a zoning by-law amendment (“ZBLA”) to the County’s Zoning By-law No.1816-2006, and for site plan control (“SPA”) pursuant to section 34(11) and 41(12) of the Planning Act, respectively.
2The lands are municipally known as 49 and 57 Folkard Lane, Picton, Prince Edward County (“Subject Lands” / “Subject Property” / “Subject Site”). The subject lands consist of 49 and 57 Folkard Lane and are split zoned. 49 Folkard Lane is zoned site-specific Urban Residential Type 1 (R1-44) Zone and 57 Folkard Lane is zoned Limited Service Residential (LSR) Zone. An application for zoning by-law amendment is required to permit the development of the site.
3The proposed revised development consists of 166 total dwelling units, with a density of 47.4 dwelling units per net hectare.
[4]
5Each of the Blocks and Lots within the proposed development are the proposed development. The zones are as follows:
Block 1 – Special Urban Residential Type 3 (R3-X1-H)
Block 2 - Special Urban Residential Type 3 (R3-X2-H)
Block 3 – Special Local Commercial (CL-X-H)
Block 4 – Open Space (OS-H)
Lot 110 Urban Residential Type 1 (R1-- XH)
6Block 1 of the development is proposed to consist of 124 stacked townhouse dwelling units which are similar to traditional townhouse units, however they share a common side wall and are stacked vertically. The units will be three and a half-storeys in height (11.4 metres (“m”)) and will consist of two separate residential units, stacked vertically, with frontage on a communal road. Private garages and driveways with additional parking provided as off-street for visitor and overflow needs will be incorporated. The units in Block 1 are intended to be standard condominium units, following a future plan of condominium.
7Block 2 is proposed to contain 40 standard townhouse dwelling units that vary in height, from one and half-storey (5.6 m) to three-storey (9.6 m) built forms, transitioning height across the site. They will be subject to a future plan of subdivision, entering the market as freehold units. Each unit incorporates sufficient parking via a private garage and driveway fronting onto the private road (Folkard Lane).
8Lot 110 located at 57 Folkard Lane is proposed to contain two future single detached dwelling lots. These lots will be created through a future plan of subdivision. The lots will be accessed via Folkard Lane and future development will be subject to the provisions of the proposed Urban Residential Type 1 (R1) Zone.
9In addition, the development will include a commercial building, located in Block 3. The building is proposed to front onto County Road 49 with ten (10) parking spaces behind the building to encourage pedestrian consumers.
HEARING
10Mr. Fleming, counsel for the Applicant advised the Tribunal that following the CMC held on October 14, 2021, the Parties continued negotiations which resulted in a settlement.
11The Applicant has now made revisions to the proposed zoning instrument which has been reviewed by County staff, who confirm that they are satisfied that all issues have been adequately addressed.
12Mr. Fleming, on consent, requested the site plan appeal (child file – OLT-22-002512) pursuant to section 41(12) be adjourned sine die. This will allow the Parties to move toward a Final Order while assuring, at the site plan level, there will be agreed binding arbitration to resolve any issues that may arise.
WITNESS
13The Affidavit of Planner Ms. Jennifer Wood was marked as Exhibit 1, Mr. Matt Coffey’s Affidavit Exhibit 2, the ZBLA Exhibit 3 and Minutes of Settlement were marked as Exhibit 4.
14Ms. Wood was affirmed and qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.
BACKGROUND, SUBJECT PROPERTY AND SURROUNDING AREA
15Applications for zoning by-law amendment and site plan control were previously submitted for the Subject Lands in 2018. The technical studies were prepared to support the original planning application submitted in 2018. These included a Traffic Impact Study, a Phase I Environmental Site Assessment, a Geotechnical Investigation, and civil engineering drawings. The Applicant worked to refine the proposed development, submitting multiple iterations of a site plan to address community and staff comments.
16The Subject Lands are located along the east side of County Road 49 and consist of 38.5 m of water frontage abutting Picton Bay, within the Picton settlement area. The Subject Lands include portions of a private road, Folkard Lane, which provides access to a number of private dwellings via individually held easements. The Subject Lands are comprised of 49 and 57 Folkard Lane, forming an irregular-shaped parcel. The project site (49 Folkard Lane) has an area of approximately 3.18 hectares with approximately 218.1 m of frontage on County Road 49. Approximately 62.8 m of Folkard Lane runs along the western boundary of the 57 Folkard Lane parcel.
17The Subject Lands are currently undeveloped and sparsely forested. The surrounding area is predominantly comprised of residential dwellings with tourist commercial uses located to the north and west, in the form of a golf course. The Bay of Quinte abuts a portion of the lands to the east. Southwest is a residential development containing single-detached dwellings and a neighbourhood convenience store. The downtown core of Picton is located approximately 1.5 kilometres southeast of the Subject Lands which offers additional commercial uses, restaurants, services, and tourism opportunities.
ZONING BY-LAW AMENDEMENT
18The Subject Lands (49 Folkard Lane) are to include two site-specific Urban Residential Type 3 (R3-X1-H and R3-X2-H) Zones, as well as a site-specific Local Commercial (CL-X-H) Zone and Open Space (OS-H) Zone to permit the proposed mixed use development. Additionally, a rezoning of the waterfront lot (57 Folkard Lane), from LSR to Urban Residential Type 1 (R1-H), is proposed to reflect the development potential given planned municipal servicing expansion. A Holding symbol is being proposed for both zones, subject to the Municipality’s approval of sufficient servicing, stormwater management, and traffic reports/plans.
19In order to establish appropriate zoning, three (3) new special zones are being proposed, as well as two standard zones. Each special zone has been tailored to specific portions of the site in order to permit the proposed uses and recognize site constraints.
20A future application for Draft Plan of Subdivision will be submitted to establish lots and blocks. A future application for Plan of Condominium will be required to establish the private road and other common elements and to create the stacked townhouse units.
PLANNING EVIDENCE
21Section 2 of the Planning Act (“Act”) outlines matters of provincial interest which the Tribunal “shall have regard to” in making decisions. Ms. Wood opined that a decision to approve the settlement has due regard to such matters, including subsection (h) the orderly development of safe and healthy communities, j) the adequate provision of a full range of housing and p) the appropriate location of growth and development.
Provincial Policy Statement (“PPS”)
22Ms. Wood opined, the subject application is consistent with the PPS, in particular, the policies relating to residential intensification, environment, and a strong and competitive economy.
23She stressed the following policy directions from the PPS as relevant:
a. Policies 1.1.1 (a), (b), (c), (d), (e) and (f), Section 1.1.3.2, Section 1.1.3.3, Section 1.1.3.4, Section 1.1.3.6, Section 1.4, 1.5 and 1.6.
24The proposed development provides an efficient land use pattern which optimizes use of an existing vacant site within the urban boundary that will reflect and integrate a contemporary built form and efficient layout to minimize land consumption and paved surface area while utilizing land within Picton’s urban boundary.
25The density of approximately 47.4 dwelling units per net hectare, is an appropriate infill of under-utilized lands within the settlement area that will support municipal services and future infrastructure identified through the Master Servicing Plan for Water, Sanitary, Stormwater Systems and Internal Roads in East Picton.
26The mix of residential built forms and a new multi-use pathway will support a range of housing and contribute to the vitality and development of the existing urban area. The proposed built structures will comply with the standards of the Accessibility for Ontarians with Disabilities Act (AODA). This will ensure that accessibility is maintained for persons with disabilities and older persons. The development’s proximity to the downtown core (1.5 km) will increase the consumer base for the central business district and will increase potential ridership numbers in proximity to a downtown area, supporting the potential for transit services offered by Prince Edward County.
27The proposal introduces the expansion of an existing private road, Folkard Lane, to create a crescent with a second access point on County Road 49. This will improve traffic flows through the site and improve conditions at the existing intersection. The flow of traffic will be further improved by the introduction of a series of private internal streets, creating greater connectivity within the development and diffusing traffic on Folkard Lane.
28Through the Phase 1 Environmental Site Assessment there were no identified environmental, health or safety concerns associated with the proposed development. Additionally, erosion control measures and adequate setbacks from the waterfront have been integrated into the overall site design in order to minimize any hazards posed by the waterbody.
29The Tribunal agrees with Ms. Wood. The mixed use development comprising a varied mix and sizes of residential units and the retail space is an efficient use of the land. The development will make use of already planned municipal services. The Tribunal finds that the proposal is consistent with the PPS.
County of Prince Edward Updated Official Plan
30The Subject Lands are designated as Urban Centre in Schedule A-2 – Land Use Designations in the County Official Plan, which falls within the Urban Centres designation of Section 4 of the Official Plan.
31Ms. Wood opined that the proposed development represents appropriate infill and intensification of residential uses in proximity to Picton’s downtown core which represents an efficient use of land within the urban boundary, introducing a mix of land uses and mixed-density residential built forms which can be accommodated by existing and planned municipal infrastructure.
32The site is located with frontage on County Road 49, one of the main transportation corridors in the area. Fewer and shorter vehicle trips will be required to access basic amenities with the inclusion of a neighbourhood commercial use.
33The design of the proposed development is sensitive to environmental constraints and known ecological features. Portions of the site will be maintained as green space, including a stormwater management pond. New landscaping and planting of native species of vegetation will be introduced across the site, greatly increasing the quantity and quality of on-site vegetation. The Master Servicing Plan for Water, Sanitary, Stormwater Systems and Internal Roads in East Picton, is anticipated to be in place over the next two years which will facilitate municipal services currently not onsite.
34Future applications for site plan control will be required and additional applications for plan of subdivision, plan of condominium are anticipated.
Picton Urban Centre Secondary Plan
35The Tribunal heard that the proposed development is consistent with the Community Vision for Picton-Hallowell. The Secondary Plan identifies the Town Residential Area as a land use area to manage growth in the residential neighbourhoods with policies intended to maintain and enhance the already established neighbourhoods by encouraging compatible infill development and the extension of existing neighborhoods into surrounding undeveloped areas.
36The Subject Lands are located within the Picton Urban Centre which represents an opportunity to promote active transportation. The proposal includes an expansion of Folkard Lane as well as internal communal lanes to improve vehicular and pedestrian movement.
37The Tribunal heard that the tallest proposed buildings will be four storeys, representing a compatible transition of heights across the site to accommodate increased density within the urban boundary. The four storey dwellings have been located centrally within the Subject Site, allowing a transition to lower building heights towards existing residential uses. This will comply with the 15 m building height provision within the proposed R3 zoning.
38Ms. Wood explained that detailed consideration was given to site design and building orientation, built form, commercial uses, and landscaping. More refined design details, such as building articulation and cladding, will be addressed through the review process and through subsequent processes, such as final plan of subdivision approval and site plan control.
39Ms. Wood stated it was her professional planning opinion that the proposed development conforms with the County of Prince Edward Picton Urban Centre Secondary Plan and represents good planning.
ANALYSIS AND FINDINGS
40In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Ms. Wood. Through the evidence provided, the Tribunal finds the settlement furthers matters of provincial interest by increasing housing opportunities and furthering the requirements set out in the Planning Act.
41The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application is consistent with the PPS, conforms to the County Official Plan and the Picton Urban Centre Secondary Plan.
42The Tribunal notes the numerous technical reports submitted in support of the applications (noting that updates maybe required) and the efforts made in the form of revisions to the original proposal which have been completed by the Applicant to satisfy public and staff comments.
43The Tribunal acknowledges the cooperation between the Parties to reach a settlement in these proceedings. The Tribunal encourages the Parties to continue this cooperation throughout the site plan and building phases.
44The Tribunal has no difficulty with the proposed conditions as submitted by the Parties and accordingly the Orders of the Tribunal will be provisional only, with the Final Order being issued only when the Tribunal is advised that the conditions agreed by the Parties have been satisfied.
INTERIM ORDER
45The Tribunal orders that the appeal is allowed, in part, on an interim basis contingent on the satisfaction of the conditions set out below and it orders that the zoning by-law amendment, set out in Attachment 1 to this Interim Order, is approved in principle.
46The Tribunal orders that the site plan appeal (child file – OLT-22-002512) pursuant to section 41(12) be adjourned sine die.
47The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the Prince Edward County Solicitor, of the following pre-requisite matters having been addressed:
12.5.75 R3-75-H
48Notwithstanding any provisions of the By-law to the contrary, within the R3-75-H zone, the following provisions shall apply:
i. For the purpose of zoning interpretation, the lot lines associated with the R3-75-H zone shall be defined as follows: the front lot line shall be County Road 49 and the rear lot line shall be the lot line farthest from and opposite to the front lot line. Both perpendicular boundaries to the front lot line shall be interior lot lines. There shall be no exterior lot lines.
ii. Additional Permitted Residential Uses: Stacked Townhouse (as defined herein)
a. "Stacked Townhouse" shall mean a dwelling containing four or more principal dwelling units where the units in each pair are divided horizontally, and the pairs are divided vertically, and in which each dwelling unit has an independent entrance from the exterior.
iii. Minimum lot area: 13,000 square metres
iv. Minimum landscaped open space: 30%
v. A minimum of one (1) parking space per unit shall be provided in either a garage or a driveway. Additional parking may be permitted in a surface parking area not within a driveway.
vi. Stairs and landings leading to a unit's primary entrance shall be setback 1.0 metre from any lot line.
vii. The maximum number of residential units permitted in the R3-75 zone is 124.
viii. The Holding (H) Symbol shall not be removed until such time as:
a. the owner has entered into a Subdivision Agreement and/or a Site Plan control Agreement with the Corporation of the County, which agreement shall include but not be limited to, addressing all municipal requirements, financial or otherwise, in accordance with Sections 41 and/or 51 of the Planning Act, R.S.O. 1990, c.P.13, as amended; and
b. municipal sanitary sewer and water services are available to service the lands to the satisfaction of the County; and
c. the owner has entered into a Community Benefits Agreement with the Corporation of the County.
49All other provisions of the R3 Zone and By-law No. 1816-2006, as amended, shall apply to the lands zoned R3-75-H.
12.5.76 R3-76-H
50Notwithstanding any provisions of the By-law to the contrary, within the R3-76-H zone, the following provisions shall apply:
i. Minimum lot area: 50 square metres per townhouse dwelling unit
ii. Minimum front yard: 6.0 metres
iii. Minimum exterior side yard: 1.5 metres
iv. Minimum interior side yard: 1.5 metres
v. Maximum lot coverage: 55%
vi. Minimum landscaped open space: 28%
vii. Stairs and landings leading to a unit's primary entrance shall be setback 1.0 metre from any lot line.
viii. The maximum number of residential units permitted within the R3-76 zone is 40.
ix. The Holding (H) Symbol shall not be removed until such time as:
a. the owner has entered into a Subdivision Agreement and/or a Site Plan control Agreement with the Corporation of the County, which agreement shall include but not be limited to, addressing all municipal requirements, financial or otherwise, in accordance with Sections 41 and/or 51 of the; Planning Act, R.S.O. 1990, c.P.13, as amended; and
b. municipal sanitary sewer and water services are available to service the lands to the satisfaction of the County; and
c. the owner has entered into a Community Benefits Agreement with the Corporation of the County.
51All other provisions of the R3 Zone and By-law No. 1816-2006, as amended, shall apply to the lands zoned R3-76-H.
20.6.33 CL-33-H
52Notwithstanding any provisions of the By-law to the contrary, within the CL-33-H zone, the following provisions shall apply:
i. A convenience store shall provide a minimum of one (1) parking space per 23.0 square metres of gross floor area.
ii. A convenience store is not required to provide a loading space.
iii. The Holding (H) Symbol shall not be removed until such time as:
a. the owner has entered into a Subdivision Agreement and/or a Site Plan Control Agreement with the Corporation of the County, which agreement shall include but not be limited to, addressing all municipal requirements, financial or otherwise, in accordance with Sections 41 and/or 51 of the Planning Act, R.S.O. 1990, c.P.13, as amended; and
b. municipal sanitary sewer and water services are available to service the lands to the satisfaction of the County.
53All other provisions of the CL Zone and By-law No. 1816-2006, as amended, shall apply to the lands zoned CL-33-H.
10.5.71 Rl-H
54Notwithstanding any provisions of the By-Law to the contrary, within the Rl-71-H zone, the following provisions shall apply:
i. the Holding (H) symbol shall not be removed until such time as municipal sanitary sewer and water services are available to service the lands to the satisfaction of the County.
55All other provisions of the RI zone and By-Law No. 1816-2006, as amended, shall apply to the lands zoned Rl-71-H.
Interim Orders to Become Final Orders
56The Tribunal Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.
57If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraphs [42-52] above have been satisfied, and do not request the issuance of the Final Order, by Friday, October 20, 2023, the Applicant and the County 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 draft Zoning By-law Amendment and 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 the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
“D. Chipman”
D. CHIPMAN
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.
ATTACHMENT 1