Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 25, 2023
CASE NO(S).:
OLT-22-003970
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Delmanor West Oak Inc.
Subject:
Application to amend Zoning By-law No. No. 2014-014 - Neglect or Refusal of application by Town of Oakville
Existing Zoning:
Private Open Space, Special Provision 122 (O2-122)
Proposed Zoning:
Site Specific Private Open Space (O2) zone with a Special Provision
Purpose:
To permit 8-storey seniors’ residence
Property Address/Description:
1280 Dundas Street West
Municipality:
Town of Oakville
Municipal File No.:
Z.1423.07
OLT Lead Case No.:
OLT-22-003970
OLT Case No.:
OLT Case Name:
OLT-22-003970
Delmanor West Oak Inc. v. Oakville (Town)
Heard:
April 19, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Delmanor West Oak Inc. (the “Appellant”)
J. Cheng C. Lantz (in absentia)
Town of Oakville (the “Town”)
J. Huctwith
Region of Halton (the “Region”)
B. Maione
Conservation Halton
K. Stavrakos
Whiteoaks Communications Group Limited
K. Stavrakos
MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON APRIL 10, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This settlement hearing was held pertaining to the Appellant’s appeal to the Tribunal of the non-decision of the Town within the prescribed statutory timeline of the Appellant’s application for a Zoning By-law Amendment (the “Appeal”) to permit the development of part of the lands municipally known as 1280 Dundas Street West in the Town of Oakville (the “Subject Property”) with an eight storey seniors’ residential building providing 315 residential units together with 24 independent living units within four blocks (the “ZBA”).
2The Subject Property is located on the south side of Dundas Street West between Proudfoot Trail to the west and Sixteen Mile Creek to the east and is vacant land that is part of the existing St. Volodymyr Cultural Centre site.
3The Appeal was scheduled for an 11-day hearing on the merits; however, the Parties advised the Tribunal recently that they reached a settlement of all issues of the Appeal and wished to present the proposed resolution of the Appeal to the Tribunal for its consideration at today’s settlement hearing.
4The following documents were entered as Exhibits in Evidence:
Exhibit 1: Affidavit of Ozan Kemal, Registered Professional Planner, sworn April 14, 2023
Exhibit 2: Affidavit of Maurice Beausejour, Professional Engineer, sworn April 17, 2023
5At the conclusion of the Hearing on April 19, 2023, the Tribunal rendered an Oral Interim decision approving the ZBA subject to certain conditions which must be fulfilled prior to the Tribunal issuing its Final Order. This is the written memorandum of that interim decision.
EVIDENCE
6At the Hearing, the Appellant called one witness, Ozan Kemal, who was qualified by the Tribunal to provide expert opinion land use planning evidence. Mr. Kemal’s Curriculum Vitae and Acknowledgement of Expert’s Duty are found at Exhibits A and B of Exhibit 1 in evidence of this proceeding, being Mr. Kemal’s Affidavit.
7Mr. Kemal provided expert professional land use planning opinion evidence in summary as follows:
(a) The Subject Property is located in the West Oak Trail Neighbourhood of the Town of Oakville and is in close proximity to a number of community facilities, parks and recreation facilities, and public transit. The Proposed Development will provide residential housing in a “continuum of seniors care” including independent living units, independent living suites, independent supportive living suites, memory care suites, and assisted living suites.
(b) The Subject Property is currently zoned Private Open Space – Special Provision 122 (02-122) on Map 19-13 within the Town of Oakville Zoning By-law 2014-014. This Zoning does not list seniors housing as a permitted use, but permits a community centre, sports facility, emergency service facility, plus accessory uses including business office, public halls, restaurants and commercial establishments. The ZBA would amend the Town’s Zoning By-law to permit the Proposed Development and update the delineation of the Natural Area zone to the south of the Subject Property (adjacent to the Sixteen Mile Creek) to reflect appropriate buffers.
(c) The ZBA has regard for the matters of Provincial interest set out in Section 2 of the Planning Act, R.S.O. 1990, as amended (the “Planning Act”) and the Proposed Development will contribute to the mix and range of housing within the Town of Oakville, efficiently use land that is currently underutilized, and will constitute a built form that is well-designed, encourages a sense of place and provides public spaces that are of high quality, safe and accessible.
(d) The ZBA is consistent with the Provincial Policy Statement, 2020 (the “PPS”) and in this regard the Proposed Development will provide intensification within a built-up area that is identified by the Province, the Region and the Town as appropriate for intensification and in an area served by existing infrastructure without compromising the long-term protection of the natural environment. Moreover, the Proposed Development will provide increased housing options to the seniors community as it offers a variety of unit types, sizes and levels of care.
(e) The ZBA conforms with the Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”) and conforms to the policies that encourage compact and vibrant complete communities that optimize the use of land and infrastructure. In this regard, Mr. Kemal noted that the Subject Property is located in close proximity to transit, where intensification and growth are promoted under the Growth Plan, and supports achievement of complete communities by providing a range and mix of housing options in a more compact form as contemplated by Policy 2.2.1.4 of the Growth Plan. Mr. Kemal also opined that the Subject Property is well-served by public service facilities including parks, cultural facilities and a hospital. Mr. Kemal opined that the Proposed Development conforms to Growth Plan policies pertaining to protecting resources including water resources (Section 4) as follows:
“Generally, the [Proposed Development] will not pose any impacts to water resources, natural features, aggregate operations or the agricultural system. The Subject Lands are located north of a tributary to Sixteen Mile Creek with Sixteen Mile Creek located to the east of Fourth Line abutting the Subject Lands. The lands associated with this corridor are identified as a natural heritage system and have been defined as part of the Environmental Impact Study [EIS] with appropriate buffers implemented. The limits of the Woodland and Valleyland within the Subject Lands will be zoned as Private Open Space (with no site-specific exception allowing for development) and the Nature Area to the south of the Subject Lands within the St. Volodymyr’s Landholdings as identified in the EIS will maintain the Natural Area zoning to ensure its long term protection. Further, the [Proposed Development] responds to the Growth Plan’s policies related to climate change adaptation and mitigation by enhancing a complete community through intensification and opportunities for reduced dependence on automobiles.”
(f) The ZBA conforms with the Region’s Official Plan (the “ROP”) and in particular contributes to the achievement of the objectives of the ROP for Urban Areas, growth management, intensification, housing and healthy communities. Mr. Kemal noted that the Subject Property is located within the Built Boundary and designated Urban Area in the ROP and in immediate proximity to Dundas Street, identified as a Major Arterial and Higher Order Transit Corridor in the ROP. Mr. Kemal opined that the Proposed Development will provide a density and built form “consistent and compatible with the surrounding area and gives residents in the area an opportunity to age-in-place within the community.” Mr. Kemal also opined that the Proposed Development “respects the Regional Natural Heritage System through providing for an appropriate buffer to this feature which will be zoned appropriately to ensure its long term protection”, as detailed above in his evidence regarding the Growth Plan.
(g) The ZBA conforms with the Town’s Official Plan (the “Town OP”) and in this regard Mr. Kemal noted that the Subject Property is located within the Residential Areas and Built Boundary designations of the Town OP and on a Major Arterial Road identified for higher order transit “and therefore have been determined to be appropriate for intensification.” Further, Mr. Kemal noted that the Subject Property “does not abut any stable low rise residential development” and, as such, is “suitable for intensification as they have immediate access to higher order transit and provide significant buffers from the existing stable neighbourhoods to the west and south of the Subject Lands.” Mr. Kemal opined that the ZBA conforms to the Town OP’s policies pertaining to housing, transportation including active transportation connections and transit as well as sustainability as it contemplates a continuum of housing within a compact transit-supportive density and built forms incorporating sustainability features such as energy efficiency measures and stormwater management best practices.
(h) Mr. Kemal testified that the Subject Property is located west and north of lands designated as Environmentally Sensitive Areas, Area of Natural and Scientific Interest and Woodlands in the Town OP. As such, Mr. Kemal testified that an Environmental Impact Study was prepared that concluded that the Proposed Development “can proceed in conformity/compliance within the applicable regulatory and policy framework, by respecting the recommended development limits, including the established setback and buffers adjacent to the top of bank and valley woodland edge, improving stormwater quality run-off and providing naturalization and ecological enhancements within the buffers.”
(i) Mr. Kemal also reviewed the Town’s new Official Plan (approved on November 4, 2022, subsequent to the date of the ZBA application submitted to the Town by the Appellant), and opined that there is no material change to his analysis of conformity of the ZBA in the context of the Town’s new Official Plan.
(j) With regard to the Town of Oakville Livable by Design Manual (the “LBDM”), Mr. Kemal opined that the ZBA implements the guidelines contained in the LBDM pertaining to housing mix and density, outstanding design quality, and community integration as the Proposed Development constitutes a “well-designed and high quality retirement village on the Subject Lands which will allow for an efficient use of the lands by adding seniors housing in an area that is well served by transit, shopping, parks and community uses.”
(k) A Functional Servicing Investigation and Study for the Subject Property referred to in Mr. Kemal’s affidavit concluded that water and wastewater servicing may be provided through new connecting pipes to meet an existing water line and a new sanitary sewer pipe to connect to an existing wastewater trunk sewer. Further discussions and agreement with the Region on the appropriate servicing solution are required.
8The Subject Property is located in proximity to lands municipally known as 1303 Dundas Street West to the north that are utilized by facilities that broadcast AM radio station transmissions (the “AM Broadcast Site”). As such, the Appellant retained a Professional Engineer with expertise in radiofrequency impacts (Maurice Beausejour) who was qualified as an expert to provide opinion evidence on this subject matter before the Tribunal at the settlement hearing and whose affidavit of evidence was entered as Exhibit 2 in evidence. In that affidavit, Mr. Beausejour opined that construction safety in relation to the radiofrequency issue may be achieved through the Appellant’s use of a qualified radiofrequency engineer and implementation of a construction safety plan during construction of the Proposed Development, all as contemplated in the settlement with the Town. Moreover, Mr. Beausejour opined that “there is minimal risk of the AM Broadcast Site introducing radiofrequency interference upon life-supporting medical devices on the Subject Lands, provided that such devices are appropriately designed and manufactured in accordance with the applicable industry standards.”
ANALYSIS AND FINDINGS
9The Tribunal, having heard the uncontroverted evidence of the registered professional planner, Ozan Kemal, and considered his Affidavit as well as the Affidavit of Mr. Beausejour, is satisfied that the ZBA is consistent with the PPS, conforms with each of the Growth Plan, the Region’s OP and the Town’s OP, has regard for the matters of Provincial interest set out in Section 2 of the Planning Act and constitutes good land use planning.
REQUEST FOR AN INTERIM ORDER
10With regard to the description of the Subject Property, counsel for the Town advised that its precise dimensions and the calculation of corresponding setbacks is not possible at this time as the Appellant is proceeding with a consent application to sever the Subject Property from the balance of the lands municipally known as 1280 Dundas Street West (the St. Volodymyr Cultural Site). The parties requested collectively that the Tribunal consider issuing an Interim Order that approves the ZBA in principle with reference to the site plan delineating the limits of development related to natural hazards and the architectural drawings that depict the Proposed Development including height, density, etc. Once a Reference Plan describing the Subject Property that is the subject of the consent application has been prepared, then the parties will be in a position to draft a ZBA in final form for submission to the Tribunal for its consideration and, if appropriate, approval as part of a Final Order. In addition, counsel for the Appellant and the Region also requested an Interim Order so that matters relating to water and wastewater servicing solutions that still require agreement between those parties could be finalized prior to a Final Order.
11The Tribunal is satisfied that it is appropriate to issue an Interim Order as detailed below with regard to the Appeal in order to accommodate the matters referred to by the parties in the preceding paragraph and in furtherance of resolution of the Appeal.
INTERIM ORDER
12THE TRIBUNAL ORDERS THAT the appeal is allowed, on an interim basis, contingent upon receipt of those pre-requisite matters identified in paragraph 13 below and the Zoning By-law Amendment as contemplated in the Site Plan and Architectural Drawings set out in Attachment 1 to this Interim Order and subject to adherence to the limits of development relating to natural hazards as depicted by lines shown on the said attached Site Plan, is hereby approved in principle.
13The Tribunal will withhold the issuance of its Final Order contingent upon confirmation, satisfaction, or receipt of the following pre-requisite matters:
a. the Tribunal has received and approved the ZBA submitted in a final form, confirmed to be satisfactory to the Appellant and the Town, copied to the other Parties;
b. the Tribunal has received written confirmation from the Appellant, copied to the other Parties, that the Appellant and the Region have agreed upon a water servicing solution for the Proposed Development; and
c. the Tribunal has received written confirmation from the Appellant, copied to the other Parties, that the Appellant and the Region have agreed upon a wastewater servicing solution for the Proposed Development.
14The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the ZBA and the issuance of the Final Order and with respect to such outstanding matters relating to this Interim Order and may be spoken to concerning matters relating to this interim contingent Order and the issuance of the Final Order.
15If the Parties do not submit the final draft of the ZBA and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 13 have been satisfied, and do not request the issuance of the Final Order, by no later than Wednesday, July 19, 2023, the Appellant 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 draft ZBA and issuance of the Final Order by the Tribunal. In the event that 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, the Tribunal may then dismiss the Appeal.
16The 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 ZBA, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.
“D. Arnold”
D. ARNOLD
MEMBER
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.