Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 18, 2023 CASE NO(S).: OLT-22-004776

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a site-specific amendment to increase the governing density policy within Downtown Whitby’s Secondary Plan Reference Number: DEV-15-22 (OPA-2022/-W/03) Property Address: 132 and 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004776 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town)

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Application to amend the Zoning By-law No. 2585–neglect to make a decision Description: To permit a redevelopment of the site to construct an 11-storey mixed-use building Reference Number: DEV-15-22 (Z-11-22) Property Address: 132 and 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004777 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town)

Heard: March 23, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP)	Russell Cheeseman
Town of Whitby	Francesco Santaguida
Regional Municipality of Durham	Cindy Boyd, Alexander McPherson

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA AND JENNIFER CAMPBELL ON MARCH 23, 2023 AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference ("CMC") brought before the Ontario Land Tribunal (the "Tribunal") regarding the appeals brought by Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) (collectively, the "Appellant") concerning its requests for (i) a site-specific amendment to the Official Plan of the Town of Whitby (the "Official Plan") to increase the governing density policy within Downtown Whitby's Secondary Plan within the Commercial designation from a maximum density of 200 units per net hectare to 354 units per net hectare; and (ii) an amendment to the Comprehensive Zoning By-law No. 2585 of the Town of Whitby (the "Zoning By-law") to permit redevelopment of the site to construct an 11 storey mixed-use building, all with respect to the property located at 132 and 146 Brock Street North, in Town of Whitby, Ontario (collectively, the "Property").

2The Tribunal received an Affidavit of Service for the CMC (sworn by Darlene Hornsby) and marked it as Exhibit 1. Upon review and hearing no concerns, the Tribunal was satisfied that proper Notice of the CMC was issued.

3At the CMC, the Regional Municipality of Durham (the "Region") requested Party Status. Nadine Wilkes requested Participant Status and the Parties discussed the identification of issues to be adjudicated at a hearing as well as opportunities for settlement discussions and potential hearing dates.

STATUS REQUESTS

4The Region submitted that its request for Party status was in order to permit it to address any issues related to a noise study for the proposed development as well as regional servicing requirements that must be met. Its request for Party status was on consent. The Tribunal found that the Region has a genuine and direct interest in the proceeding, will be impacted by the Tribunal's decision, and will assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds to add the Region as a Party and granted it Party status, as requested.

5The Tribunal then reviewed the request for Participant status by Nadine Wilkes, who resides approximately two streets west of the Property. Her request for Participant status was on consent. The Tribunal found that there are reasonable grounds to add Nadine Wilkes as a Participant and granted her Participant status, as requested.

TRIBUNAL-LED MEDIATION

6The Tribunal highlighted the availability of Tribunal-led mediation and asked if there had been any discussions regarding settlement. The Parties advised the Tribunal that there had been on-going discussions and anticipated that a number of technical issues might be able to be resolved. All Parties agreed that Tribunal-led mediation was not suitable for this case.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

7The Parties discussed the identification of the issues to be adjudicated at a hearing. A draft Procedural Order ("PO") and Issues List had been circulated by the Appellant in advance of the CMC, however it had not yet been settled by the Parties. The Parties expressed confidence that they would be able to work together to narrow and finalize the PO and Issues List, if granted additional time to do so. The Region also noted that it would contribute to the draft PO and Issues List, following its grant of Party status. All Parties concurred that they would work together to finalize the PO and Issues List, and submit it to the Tribunal by April 14, 2023.

SCHEDULING OF FUTURE HEARINGS

8The Parties then discussed the anticipated length of the hearing, and agreed that it would likely require ten (10) days. The Tribunal scheduled a 10-day hearing of the merits commencing on Monday, March 11, 2024 at 10 a.m. by video.

ORDER

9The Tribunal orders that the Regional Municipality of Durham is a Party in this proceeding.

10The Tribunal orders that Nadine Wilkes is a Participant in this proceeding.

11The Tribunal ordered that a final Procedural Order and Issues List be filed by the Parties by April 14, 2023. A final Procedural Order and Issues List in the form attached to this Decision as Attachment 1 was subsequently filed by the Parties, and shall govern the proceedings.

12The Tribunal orders that a hearing will be held by video hearing commencing on Monday, March 11, 2024, at 10 a.m. and continuing until Friday, March 22, 2024.

https://global.gotomeeting.com/join/927921077

Access code: 927-921-077

13Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

14Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9391. The access code is as indicated above

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

17There will be no further notice.

18These Members are not seized.

"S. Bobka"

S. BOBKA MEMBER

“Jennifer Campbell”

JENNIFER CAMPBELL 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.

ATTACHMENT 1

ONTARIO LAND TRIBUNAL

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Request to amend the Official Plan –Failure to adopt the requested amendment Description: To permit a site specific amendment to increase the governing density policy within Downtown Whitby’s Secondary Plan Reference Number: DEV-15-22 (OPA-2022/W/03) Property Address: 132 & 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004776 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town)

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Application to amend the Zoning By-law No. 2585 – neglect to make a decision Description: To permit a redevelopment of the site to construct an eleven- storey mixed-use building Reference Number: DEV-15-22 (Z-11-22) Property Address: 132 &146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004777 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, March 11, 2024 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is ten (10) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, November 3, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before Friday, December 1, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, December 15, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before Friday, January 12, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Friday, January 12, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Friday, February 9, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, March 1, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, January 26, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, March 1, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, March 1, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1

PARTIES

1. Terrabona Developments Ltd.
2. Town of Whitby
3. Region of Durham

PARTICIPANTS

1. Nadine Wilkes

Attachment 2

Issues List

Principles of Development

1. Prejudice & Prematurity: Are the proposed applications premature and would approval of the proposed applications prejudice the ongoing update and approval process of the recently adopted Downtown Whitby Secondary Plan, as required in policy 4.3.3.3.3.2 of the Town’s Official Plan?
2. Precedence: Would approval of the proposed applications set an undesirable precedent for the existing and recently adopted Downtown Whitby Secondary Plan area, and other intensification areas/corridors of the Town of Whitby?
3. Provincial Policy Statement (2020): Are the proposed applications consistent with and have proper regard for the Provincial Policy Statement (2020), in particular policies 1.1.1, 1.4 and 1.7(d) and (e), 2.6(?)?
4. A Place to Grow: Growth plan for the Greater Golden Horseshoe: Does conformity with the Growth Plan require approval of proposed applications, including when considering policies 1.2.1, 2.2.6 and 4.2.7?

Town of Whitby Official Plan, Downtown Whitby Secondary Plan and Durham Regional Official Plan

5. Do the proposed applications conform to and meet the goal and intent of the relevant policies of the Durham Regional Official Plan, including policies 7.3.17, 8A.2.2 and 8A.2.14?
6. What weight should be given to the recently adopted Downtown Whitby Secondary Plan when assessing the proposed applications?
7. Do the proposed applications conform to and meet the overall goals, intent, and guiding principles of the Town of Whitby’s Official Plan, including policies
   1. 2.1.1(b) and (h);
   2. 2.3.4.2.1, 2.3.4.2.4 and 2.3.4.2.5;
   3. 3.1.2.6;
   4. 4.3.2.2 to 4.3.2.5, and 4.3.2.8;
   5. 4.4.3.9.4;
   6. 6.1.1, 6.1.2.2, 6.1.3.2 and 6.1.3.10;
   7. 6.2.3.1.2, 6.2.3.1.3, 6.2.3.1.4, 6.2.3.6, 6.2.3.11.1, 6.2.3.11.2, and 6.2.3.12.
8. Do the proposed heights integrate and transition appropriately with the planned/existing heights of the surrounding area in conformity with the Town’s Official Plan policy 11.3.6.4?
9. Is the proposed increase to the maximum permitted building height from 3 and 6 storeys to 11 storeys appropriate as set-out on Schedule “I” – Downtown Secondary Plan Building Height, including policies 6.2.3.12.3 and 11.3.3.3?
10. Is the proposed increase in the maximum permitted residential density from 200 units per net hectare to at least 370 units per net hectare appropriate, in consideration of the Town’s Official Plan (including policy 11.3.4.1)?

Zoning & Urban Design

11. Given the current Holding provision applicable to the rear portion of the subject lands, have the proposed applications sufficiently assessed the servicing capacities within the Downtown area in relation to the sanitary sewers, municipal water, and storm water servicing facilities?
12. Does the proposed Zoning By-law amendment conform to the Town’s Official Plan, and does it properly address/justify and give consideration to: (a) compatibility with adjacent uses of land; (b) suitability of the land for the proposed purpose and uses; (c) adequacy of vehicular access; (d) minimum parking requirements; (e) height and density of the proposed development; (f) lot coverage, setback and stepback requirements; (g) road widening across the Brock Street North frontage; and (h) impacts to site plan and site development approvals.
13. Is the proposed height and built form/massing appropriate for the site, given the existing zoning and streetscape?

Heritage

14. Would the height of the proposed applications create a negative impact on the heritage characteristics on the site and surrounding heritage context of the area?
15. How should the heritage conservation measures be implemented and secured as a part of the proposed applications?
16. Has the Appellant conducted a sufficient archaeological assessment of the subject lands?

Site Servicing, Transportation and Engineering

17. Has the Appellant appropriately addressed the site servicing and engineering comments from Town (including those dated July 18, 26 and August 26, 2022), Region and the Central Lake Ontario Conservation Authority (August 2, 2022)?
18. Has the Appellant appropriately responded to the comments of the Town of Whitby’s Transportation Services Division dated July 18, 2022?
19. Has the Appellant appropriately responded to the Region’s comments on the Appellant’s Environmental Noise Study?

Affordable Housing

20. What does the Appellant mean when it says that it is going to provide affordable housing?
    1. Will the proposed applications provide affordable housing, as defined in the Provincial Policy Statement and in the Growth Plan?
    2. If affordable housing is to be provided as part of the proposed applications, how will the affordable housing be secured, what form will it take (i.e., ownership or rental), and for what period of time will it be secured?
21. Does the proposed affordable housing conform to the policy requirements of Regional Official Plan Policy 4.2.4?
22. Does the proposed affordable housing conform to the policy requirements of Town Official Plan Policy 7.7.1, 7.7.3, and 11.3.2.2?

Attachment 3

ORDER OF EVIDENCE

1. Terrabona Developments Ltd.
2. Town of Whitby
3. Regional Municipality of Durham
4. Terrabona Developments Ltd., in Reply