Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 18, 2023

CASE NO(S).:

OLT-21-001631

(Formerly PL200201)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Burgess Heritage Group Inc.

Subject:

Request to amend the Official Plan - Failure of Town of Grimsby to adopt the requested amendment

Existing Designation:

Neighbourhood Commercial Areas

Proposed Designated:

Site Specific (To be determined)

Purpose:

To permit a 5-storey mixed use building

Property Address/Description:

133 and 137 Main Street East

Municipality:

Town of Grimsby

Approval Authority File No.:

26O-16-1901

OLT Case No.:

OLT-21-001631

Legacy Case No.:

PL200201

OLT Lead Case No.:

OLT-21-001631

Legacy Lead Case No.:

PL200201

OLT Case Name:

Burgess Heritage Group Inc. v. Grimsby (Town)

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

Applicant and Appellant:

Burgess Heritage Group Inc.

Subject:

Application to amend Zoning By-law No. 14-45 - Refusal or neglect of Town of Grimsby to make a decision

Existing Zoning:

Neighbourhood Commercial

Proposed Zoning:

Site Specific (To be determined)

Purpose:

To permit a 5-storey mixed use building

Property Address/Description:

133 and 137 Main Street East

Municipality:

Town of Grimsby

Municipality File No.:

26Z-16-1904

OLT Case No.:

OLT-21-001632

Legacy Case No.:

PL200202

OLT Lead Case No.:

OLT-21-001631

Legacy Lead Case No.:

PL200201

Heard:

October 18 to November 4, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Burgess Heritage Group Inc.

Johanna Shapira and Kevin Pirak, Bogdan Artus (student-at-law)

Town of Grimsby

Tom Halinski and Meaghan Barrett, Bianca Crignano (student-at-law)

DECISION DELIVERED BY SHARYN VINCENT AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1Burgess Heritage Group Inc, (“Burgess”) the owners of 133-137 Main Street East in the Town of Grimsby have appealed against the failure of Council to make decisions with respect to applications to amend both the Official Plan and zoning of the subject lands in order to permit the erection of a five storey residential building with grade related commercial floor area along the Main Street frontage.

2The southwest portion of the site is currently occupied by an existing two and a half storey red brick house form known locally as the James Willison Grout Nelles House (“Nelles House”), which has been designated under Part IV of the Ontario Heritage Act (“OHA”), and which will be retained, renovated and repurposed in situ for office uses as part of the commercial component of the overall mixed use proposal subject of this decision.

3Previous iterations of the development concept for the subject lands contemplated the relocation of the Nelles House closer to the Main Street frontage. In response to considerable feedback, the development concept was revised to retain the Nelles house in situ and Burgess has executed a Heritage Conservation Plan as a precondition to the Heritage permit necessary to restore the building.

4This aspect of the proposal, while conciliatory, did not allay the Town’s opposition to the proposed residential intensification of this site, which is currently designated and zoned to permit Neighbourhood Commercial Uses.

5It is the position of the Town that while a mixed use development could be appropriately accommodated on the site, the intensity of development proposed was that more appropriately directed to either of the two designated growth areas, and therefore, represented an over development along this portion of Main Street, contrary to the Official Plan, specifically at variance with the Official Plan goal of maintaining the small town character of this portion of Main Street.

6The Town’s position was consistent with the case strategy advanced in opposition to a similar development proposal on the lands abutting to the east, known as 141-147 Main Street, subject of the Tribunal’s decision OLT 22-002368 Losani Homes (1998) Ltd v. Town of Grimsby 2022 CarswellOnt 12641, issued September 8, 2022, approximately five weeks before the commencement of this proceeding.

7That decision is distinguished from the appeal subject of this decision as it also dealt with two appeals pursuant to s. 29(5) and 34 of the OHA, against the Notice of Intent to Designate 141 and 147 Main Street, together with the Town’s refusal of applications for demolition permits for the two house form structures which had been adapted and used as part of the nursery operation, then active on those lands.

8The decision did however allow the appeals in part and approved in principle amendments to the Official Plan and zoning by-law to permit medium scale [mixed use] development subject to direction specific to the interfaces of that site, but which most importantly required the preservation of the two heritage structures which are to be sited to “maintain their detached appearance”. To date revised plans have not been filed with the Tribunal, which presents an unusual challenge to this panel.

9Notwithstanding the challenge, and, while heritage conservation remains a consideration in the Burgess appeal, the proposal to retain, renovate and reuse the existing heritage structure in situ serves to focus this decision, on the appropriateness of the proposed intensity and resulting built form and the interfaces with the heritage structure and abutting, existing and proposed development.

10It is however, the City’s position that retention of the heritage house form should not factor into the consideration of the density of new development sought, and further, given there are only two Neighbourhood Commercial designations within the overall structure of the Town, that any new development should incorporate more commercial space than that proposed, while also being mindful of the potential of cumulative built form impacts of two abutting infill developments.

11At the outset of this decision, the Tribunal summarizes the following undisputed facts relevant to interpreting the existing intensification policies of the Official Plan and the compatibility of the proposal to both the existing and planned context:

• The majority of intensification is to be directed to two identified major intensification areas in the Downtown and Winston/Casablanca node, the latter to be subject to a minimum density target in the implementing secondary plan;

• The Official Plan policy 2.4.4 encourages infill intensification throughout the built up area of the Urban Settlement Area to achieve higher densities than what currently exist within the Intensification Area, subject to the other policies of the intensification strategy and the balance of the Plan, including the objective of preserving the small town scenic character;

• Intensification in Stable Residential Neighbourhoods is to be limited, and the subject site, whilst abutting a stable residential neighbourhood to the north and west, is not located within a neighbourhood;

• Residential uses, in combination with commercial uses to a height limit of 8.5 metres is permitted in the existing NC zoning. Elsewhere in the NC zone, the existing height limit has resulted in development not exceeding two stories in height.

• The entirety of the Neighbourhood Commercial designation on the north side of Main Street abuts infill townhouse developments, the townhouses immediately north of the subject site, being one storey ‘bungalow’ units with hipped roofs. These lands were severed from the original Nelles holding to allow the now existing infill development as a modest form of intensification within the Neighbourhood designation.

• Properties fronting onto both sides of the portion of Main Street bordered on the west by the westerly limits of the subject property and the east by the easterly limits of the West Lincoln Memorial Hospital were subject of a 2016 Planning Department initiative and subsequent visioning session to explore amongst other things, the merit of allowing residential intensification within what became known as the Grimsby Hospital Corridor Secondary Plan and Urban Design Guidelines Study (“Corridor Study”), which was largely driven by the prospect of a renewal of the existing Hospital facility. The initiative was truncated in February 2019 following a Council vote which reconsidered proceeding with the study. Perhaps not surprisingly, both the subject requests to amend the Official Plan and Zoning By-law and those of Losani on the lands abutting to the east, where formally submitted as site specific applications during this time frame.

• As described in par. [8], on September 8, 2022, the Tribunal, differently constituted, issued an interim decision on a redevelopment proposal of lands immediately abutting at 141-149 Main Street, which in general terms, subject to a redesign having the effect of retaining the two existing heritage house forms on the site, found in favour of and supported in principle, a terraced 6 storey, mixed use “H” shaped building. At the time of writing this decision, the final redesign flowing from this interim order has as yet to be submitted to the Tribunal for consideration.

THE SUBJECT PROPOSAL

12The combined site design constraints, being the retention of the Nelles House in situ, setback approximately 16 metres from Main Street, and approximately 12 metres (“m”) from Nelles Road, in combination with the preferred access driveway connecting to Nelles Road, encourages any new footprint proposed on the consolidated site being laid out in a fashion similar to that of an “L” shaped neighbourhood commercial plaza paralleling the northerly and easterly property lines. The exception to the similarity is the proposed height of 15.9 m which would otherwise be limited to 8.5 m under the NC zoning. Access to the proposed underground parking, and approximately 30 surface parking spaces and associated surface walkways, occupy the balance of the centre of the site.

13The northerly façade, which faces the one storey bungalow townhouses located along the north side of the private condo road, which runs parallel to the northerly property line of the subject lands, has been stepped down to three storeys from four, and contains only residential uses in this wing of the L.

14The north/south wing similarly is setback approximately 12 m from the northerly property line where it rises to four storeys, and then is setback an additional 6.0 m approximately, such that the northerly façade of the five storey wing, is setback approximately 20 m from the north property line. The proposed front yard setback of the ground floor varies from 2.1 to 2.4 m. The stories above vary with increasing stepbacks. Two commercial units, each being approximately 134 square metres in area flank the residential lobby which is accessed from Main Street.

15The existing lawn immediately in front and for a portion of the westerly yard of the Nelles House, (once the location of a heritage beech which was removed due to storm damage prior to the onset of the hearing) remains unencumbered, but for the proposed underground parking structure, and the prospect of an above grade hydro transformer vault. This area is proposed as a Privately Owned Publicly Accessible Open Space (“POPS”).

16Note of the visual amenity of the existing large landscaped setback was a constant throughout the evidence, and fundamental to the decision to retain the Nelles House in situ as being a representative attribute of the historic Queen Anne style and the prosperity of the original fruit farm owners.

POLICY CONTEXT

17In support of the proposed intensification of this site, the Tribunal heard both planning and urban design evidence which identified the opportunity to diversify the range of available housing types in a built form, in a location within walking distance of the goods and services offered in the balance of the neighbourhood commercial corridor, while being proximate to the Hospital, a known major employer in the Town.

18As set out above, the Parties disagreed over the intensity of the built form proposed, and whether the commercial floor space proposed was adequate. The Town takes the position that the planned function of the Neighbourhood Commercial designation will be eroded by the current proposal, which aside from being too intense, incorporates what the Town characterized as a marginal amount and quality of commercial floor space, given the lower than preferred/typical commercial floor to ceiling heights.

19The Tribunal notes, that despite the Neighbourhood Commercial designation, the lands have never been developed for, nor occupied by any form of commercial use.

20The evidence in support of the intensification at the subject location relies upon, amongst other policies, reference to the Vision statement of the Town Official that the existing settlement is to be intensified in a few key areas. The Tribunal was introduced to the now discontinued, but municipally instigated Corridor Study which was initiated to determine what role the area could in fact play in the furtherance of expanding the range of housing options in the Town. The Town does not dispute the merit of intensification of the subject lands, subject to meeting the other objectives of cultural heritage preservation compatibility with the abutting neighbourhood, and the retention of the commercial function of the underlying designation.

ANALYSIS AND FINDINGS

21Having considered all of the evidence, the Tribunal is persuaded that allowing the proposed infill, mixed use development, generally in the form proposed, is appropriate. The proposal which will provide additional housing options and opportunities, will both support and benefit from being located within the Neighbourhood Commercial designation, and will also feature the restored Nelles House as both the anchor and gateway to the transition from commercial to residential uses along Main Street, and vice versa. All of these outcomes are in the public interest.

22The Tribunal was not persuaded by the evidence that the entire ground floor of the proposed L shaped building should be required as commercial floor space, in addition to the repurposing of the Nelles House. The subject site has never contributed to the commercial hierarchy within the Town, unlike, and therefore distinguished from the expectations for the redevelopment of the Losani lands, which, the Tribunal agrees, are also better strategically located adjacent to existing, viable retail and service commercial uses

23Similarly, while the proposed siting of the east/west wing of the L shaped building does not meet the 25 m setback requirement of Policy 3.4.7.8(f), the proposed highly detailed modulation of the façade (in the words of the witness: “the strong vertical materiality”), taken in combination with the proposed building stepbacks, mitigate against the adverse impact that a 25 m setback is intended to address, and generally replicates the application of a 45 degree angular plane, a tool commonly deployed to achieve appropriate transition.

24In addition, seasonal shadow studies demonstrate that the there will be no resultant adverse impact on the principal amenity areas of the abutting townhouses.

25The evidence demonstrated that the demand for new units in furtherance of the Regional growth management targets for the Town are anticipated to largely take the form of apartment units, as proposed. The Tribunal finds that the subject site can accommodate intensification, in the built form expected, without adversely impacting the nearby neighbourhoods.

26The L shaped floor plate of the proposed mixed use building allows the Nelles House to enjoy the landscaped setback from Main Street as an open, unobstructed green space which maintains the dignity of the original siting and use. The Tribunal is persuaded that the cultural heritage importance of the site and structure can coexist comfortably, and without negative impact with the proposed surrounding building, thereby satisfying the Provincial Policies with respect to the preservation of cultural heritage and the Official Plan policy of maintaining, to the extent possible, the large open lawns characteristic of the original development pattern of Main Street.

27This objective is balanced with the objective of creating a vibrant pedestrian environment and a sense of place which is in part fostered by the siting of the north/south wing of the proposed structure, which brings a stepped back front facade, accommodating grade related commercial uses, forward to create a street edge and transition to the balance of the Neighbourhood Commercial corridor beyond.

28While a site plan appeal is not before the Tribunal, all of the evidence heard was premised upon the particular interfaces and resulting impacts of the built form proposed in the architectural drawings dated October 6, 2022, The Tribunal’s findings also include consideration of all of the evidence given with respect to the differing interpretations of the directions given in the Losani decision, in order to distill the potential, ultimate outcome of that site plan.

29Having considered all of the urban design evidence as it relates to the sensitive interfaces of the subject site, and when taken together with this Member’s distillation of the Losani decision, the Tribunal finds that the draft instruments proffered as Exhibits 19 and 20, in support of the proposal at hand are either lacking or too flexible given that much of the evidence related to the benefits and merit of the sculpting of the building mass. The Tribunal will therefore require that the draft Official Plan and Zoning By-law amendments be reworked to better reflect the policy framework and built form outcomes represented in Exhibit 5 with the exception of the front yard setback from Main Street for the proposed new footprint, which the Tribunal directs be a minimum of 3.0 m, in keeping with the existing underlying NC zoning. The proposed sculpting and stepbacks for the upper floors are to be maintained, such that the entire wing is to be setback and stepped back 3.0 m, as opposed to 2.14 m.

ORDER

30THE TRIBUNAL HEREBY allows the appeals in part, and directs the Town to amend both the Official Plan and Zoning By-law as necessary, to permit a five storey, mixed use development, substantially in accordance with architectural plans forming part of Exhibit 5, dated October 6, 2022, filed as evidence in support of the appeals considered in this decision, subject to the specifications set out in this Order.

31The Tribunal will withhold its final Order until in receipt of Official Plan and zoning amendments in final form which incorporate the following additional requirements in particular:

• Minimum net, non-residential floor area of 496 square metres;

• Minimum setback from Main Street property line 3.0 metres;

• Minimum setback from northerly property line 6.0 metres;

• Maximum heights together with the various building setbacks and stepbacks illustrated on a schedule forming part of the zoning by-law

32In all other respects, the appeals are dismissed.

“Sharyn Vincent”

SHARYN VINCENT

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.