Polocorp Inc. v. Niagara Falls (City), 2023 CanLII 46224

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 23, 2023

CASE NO(S).: OLT-22-004465

PROCEEDING COMMENCED UNDER section 51(39) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Polocorp Inc.

Subject: Conditions of approval of draft plan of subdivision

Description: Proposes to subdivide 3.4 hectares (8.4 acres) of land on the east side of Sodom Road, north of Willick Road to develop 105 units. Appealing Condition 7: That the draft plan be redlined to show a public street access, to the satisfaction of the City, adjacent to abutting land to the north, namely 9200 Sodom Road, or that Block 25- Future Development block be merged in title with part or all of the abutting lands to the north, namely 9200 Sodom Road, at the time of registration of the subdivision documents.

Reference Number: 26T-11-2019-002

Property Address: 9234 Sodom Road and Part of Lot 2, Concession 2

Municipality/UT: Niagara Falls/Niagara

OLT Case No: OLT-22-004465

OLT Lead Case No: OLT-22-004465

OLT Case Name: Polocorp Inc. v. Niagara Falls (City)

Heard: February 2, 2023, by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

Polocorp Inc. (“Applicant /Appellant”)

Steven O'Melia

City of Niagara Falls (“City”)

Sara Premi

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON FEBRUARY 2, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This is a Settlement Hearing concerning an appeal by the Applicant regarding a proposal to subdivide 3.4 hectares (8.4 acres) of land on the east side of Sodom Road, north of Willick Road (the “subject lands”).

2To facilitate this development, the Applicant made an application for approval of a draft plan of subdivision (“DPS”; which is under appeal) and zoning by-law amendment (“ZBA”; which is not under appeal). Council approved both applications, but with a DPS condition (“condition no. 7”) that the Applicant contends is unreasonable since it could place the ability to satisfy the condition in the hands of a private third party or require that the plan be revised, resulting in an inefficient use of the subject lands. As a result, we have the present appeal which is principally concerned with condition no. 7.

3The Tribunal is now advised that the Parties propose a settlement. The settlement involves revisions to the proposed DPS conditions, as well as a minor change to the DPS.

Evidence

4Larry Kotseff was qualified on consent as an expert in land use planning. His evidence was relied upon by the Parties in support of the proposed settlement. The following is a summary of his evidence.

5The proposed subdivision borders on the north, east and south of an approved DPS being developed by the DG Group. Mr. Kotseff opined that the proposed subdivision will complement the DG Group development and complete development of the general area of the Chippawa East Planning District.

6Mr. Kotseff testified that the proposed subdivision will provide a variety of residential unit types including townhouses, stacked townhouses, and single-family units required to accommodate the significant demand for housing in the City.

7Mr. Kotseff confirms that he prepared the Planning Justification Report (“PJR”) (dated March 2022) which accompanied the ZBA and DPS applications submitted to the City. In that report, Mr. Kotseff opined that the original proposed subdivision:

a. adheres to the relevant provisions of the Planning Act, R.S.O. 1990, c.P.13;

b. has regard for matters of provincial interest and policies;

c. is consistent with the provisions of the Provincial Policy Statement, 2020;

d. conforms with the provincial Growth Plan for the Greater Golden Horseshoe (2019, as amended in 2020);

e. conforms with the Region of Niagara Official Plan (2014);

f. conforms with the City of Niagara Falls Official Plan (2019 as amended);

g. makes efficient use of municipal infrastructure through context sensitive intensification;

h. supports active transportation initiatives and a mix of residential unit types;

i. is supported by the technical reports submitted as part of the planning applications by the Applicant /Appellant” to the City; and,

j. represents good planning and is appropriate within the Chippawa East Planning District.

8He further opined that the minor changes to the proposed DPS and conditions, as settled between the Parties, remain consistent with his prior analysis and opinion featured in the PJR. Consequently, Mr. Kotseff confirmed that his above conclusions still apply with respect to the proposed revised DPS and conditions.

9Mr. Kotseff notes that the revised DPS provides the following additional benefits:

a. it provides for future access to adjacent lands owned by Garry Beck;

b. it provides for additional density and represents the more efficient use of land;

c. it alleviates an undesirable curvature in Street A as per the original plan with a superior transportation solution;

d. it allows the proposed subdivision to proceed immediately upon plan registration; and

e. it otherwise resolves the concerns raised by the City.

10In conclusion, Mr. Kotseff opines that the revised DPS and conditions represent good planning and meet the requirements of the planning controls in place.

11The Tribunal accepts Mr. Kotseff’s evidence and finds same.

ORDER

12THE TRIBUNAL ORDERS that the appeal is allowed, in part, and the draft plan of subdivision shown on the plan prepared by Dasha Page, OLS, of J.D. Barnes Limited dated March 15, 2022, comprising Part of Lot 19, Concession 2, Geographic Township of Willoughby, now in the City of Niagara Falls, Regional Municipality of Niagara, which is attached as Attachment 1 hereto, is approved subject to the fulfillment of the conditions set out in Attachment 2 to this Order.

13The Member is not seized but may be spoken to should assistance be required in the case management of bringing the matter back before Tribunal.

“K.R. Andrews”

K.R. ANDREWS

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

ATTACHMENT 2

CONDITIONS OF DRAFT PLAN APPROVAL

1. Approval applies to the Part of Lot 19, Concession 2 Geographic Township of Willoughby Draft Plan of Subdivision prepared by Polocorp Inc., dated March 15, 2022, showing 21 lots for detached dwellings, Blocks 22-24, inclusive, for 30-36 on-street townhouse units, Block 25 for multiple residential development (39-45 units), Block 26 for multiple residential development (6-7 units), and Block 27 for future road allowance, and streets that are to be dedicated as private highways.

Planning and Legal

2. The developer enter into a registered Subdivision Agreement with the City to satisfy all requirements, financial and otherwise, related to the development of the land. Note: Should any other body wish to have its conditions included in the Subdivision Agreement, they may be required to become party to the Subdivision Agreement for the purpose of enforcing such conditions.

The development may proceed in two or more phases. Clearance of conditions and a separate Subdivision Agreement will be required for each phase. A secondary emergency access route, to City specifications, shall be provided to the satisfaction of the City for each phase of development where necessary.

Block 26, which is indicated as part of Phase 2 of the development, is to be registered and developed once Street A is constructed to its northern terminus of Street 5, to the satisfaction of the City.

3. The developer submit a Solicitor’s Certificate of Ownership for the subdivision land to the City Solicitor prior to the preparation of the Subdivision Agreement.

4. The developer receive final approval of the Zoning By-law amendment to provide land use regulations to guide the development of the subdivision.

5. The developer provide a calculated plan and a letter prepared by an Ontario Land Surveyor to Planning, Building & Development confirming that all lots and blocks comply with the Zoning By-law.

6. The developer provide one copy of the pre-registration plan to Planning, Building & Development and a letter stating how all the conditions imposed have been or are to be fulfilled.

7. Deleted.

8. That an Urban Design Brief and additional plans/details be submitted for Blocks 22-26, inclusive, to demonstrate enhanced architectural treatments for all corner units to avoid blank facing walls and in addition, for Block 25, a plan to depict enhanced architectural treatment for the front facing elevation facing Sodom Road. No board on board fencing is to be installed along Sodom Road.

Municipal Works

9. The roadways and sidewalks be designed and constructed in accordance with City standards which, in part, include the following:

(a) Dedication of all new road allowances (Street A and Street B) to the City as public highways and Block 27 to the City as future road allowance as part of Phase 1 of the development and all roadways and sidewalks to be constructed to municipal requirements. Notwithstanding the foregoing or any other provision of these conditions, if within eight (8) years of the date of this Order Block 27 has not been approved as part of a future municipal right-of-way extension, then the City shall reconvey Block 27 to Polocorp (the developer) at no cost on the condition that it be utilized as part of the development of the abutting lands.

(b) Street A and B to be constructed within an 8 m urban local road platform width on a 18 m right-of-way, to City standards;

(c) That the centreline of Street A is to align directly with the centre line of Street 7 (in the Chippawa East draft plan of subdivision) and the centre line of Street B is to align directly with the centre line of Street 6(in the Chippawa East draft plan of subdivision);

(d) Location of 5.0 metre daylighting triangles to reflect the latest plan;

(e) Dedication of all road allowances and daylight triangles to the City as public highways and dedication of any 0.3 m reserves deemed necessary;

(f) The developer construct speed control devices in the plan to the satisfaction of Transportation Services. Exact locations will be determined at detailed design;

(g) All streets named to the City’s satisfaction;

(h) That the developer construct or provide cash-in-lieu for a 1.5 metre concrete sidewalk for the frontage of the development along Sodom Road, and construct a 1.5 metre concrete sidewalk on the entire east side of Street B, and the entire west and north sides of Street A;

(i) That the Chippawa East draft plan of subdivision be redlined. The developer be responsible to work in conjunction with the abutting development to ensure continuity throughout the proposed subdivision. Further coordination will be required with their future plans to ensure compatibility of road grades and servicing.

(j) Provide a plan that illustrates building orientation, especially on corner lots, for addressing purposes.

(k) A temporary turn around bulb at the dead-end of Street A with a 15 m radius be provided including all required easements as needed to the satisfaction of the City.

10. The services be designed and constructed in accordance with City standards which, in part, include the following:

(a) Extension and provision of municipal water distribution, sanitary sewer and storm sewer systems at Developer’s cost in accordance with the Ministry of Environment, Conservation and Parks (MECP) and City standards;

(b) The developer will be responsible for extending existing watermain systems along Sodom Road as required to service the development. Additional upsizing of such services will be made to the City’s satisfaction with costs to be shared with the City as applicable;

(c) The developer will be responsible for connection of sanitary services into the proposed Chippawa East subdivision. Additional upsizing of such services will be made to the City’s satisfaction with costs to be shared with the City as applicable;

(d) The developer will be responsible for extending existing sanitary systems along Sodom Road as required to service the development. Additional upsizing of such services including distribution through the development for looping purposes will be made to the City’s satisfaction with costs to be shared with the City as applicable;

(e) The developer will be responsible for connecting to the proposed Chippawa East storm sewers as required to service the development;

(f) The developer shall agree to enter into a cost share agreement with the adjacent land owners to address the fair share contribution towards such items including, but not limited to, access, water, waste water, and stormwater management;

(g) Review of the local municipal sanitary system to the City’s satisfaction and all costs associated will be the sole responsibility of the developer including all required improvements prior to all final approval of the development;

(h) Testing of new municipal watermains shall be completed in the presence of a Certified Water Operator using the City’s Watermain Commissioning Checklist;

(i) Weeping tile to be connected to the storm sewer system via sump pumps and all rainwater leaders to be outlet to grade and directed to front and/or rear yards;

(j) Provision of an overland flow route to be designed in the right-of-way for major storm events and constructed in accordance with the MECP Guidelines and City standards; and

(k) Application of the City’s Lot Grading and Drainage Policy in accordance with City Standards.

11. The developer submit a Functional Servicing Report, signed by a professional engineer licensed to practice in the province of Ontario, demonstrating that the existing and proposed watermains and sanitary sewers are sufficient to service all phases of the development.

12. The developer submit a Stormwater Management Plan, signed by a professional engineer licensed to practice in the province of Ontario, confirming that the proposed storm sewers and stormwater management facilities are sufficient to service all phases of the development and shall reflect the draft approved plan of subdivision. It shall be designed and implemented in accordance with the MECP Guidelines and applicable regulatory Agencies to the satisfaction of the City including all maintenance accessory works.

13. The developer submit a Geotechnical Report prepared by a qualified geotechnical engineering consultant, licensed in the province of Ontario, to the satisfaction of Municipal Works and shall implement any recommendations of the Geotechnical Report.

14. The developer submit Canada Post’s Plan for placement of community mail boxes to Transportation staff for review and comments.

15. The developer submit a Hydrant coverage drawing to ensure adequate fire protection followed by post construction flow testing and labelling of hydrants to City standard.

16. The developer shall pay the City the required fees for boulevard tree planting according to the City’s satisfaction in accordance with the cost as shown on the current City Schedule of Fees, at time of registration.

17. The developer pay the Development Charges in force at the time of execution of the Subdivision Agreement and Building Permit issuance as per the City’s Development Charges By-law.

18. The developer grant the City and public utility companies any easements required to service the subdivision.

19. The developer prepare a street lighting drawing and photometric plan demonstrating compliance and in accordance with City specifications (as amended).

20. The developer submit the digital data and contract documents in accordance with the City CAD standards and prepare construction contracts using the City of Niagara Falls template including the Schedule of Quantities and Unit Prices format.

21. The developer pay the required fees for Engineering Inspection and Administration for the subdivision.

22. The developer is responsible to obtain all required Agency approvals (i.e. MNR, NPCA, DFO, Regional Niagara, MTO, MECP, CN, OPG, Hydro One Networks Inc., etc.) and is required to apply for a Site Alteration Permit if any works are to be scheduled to commence prior to full execution of any applicable Municipal Agreements.

Parks Design

23. The developer shall pay the City cash-in-lieu of parkland dedication, as determined by a qualified appraiser.

24. Should any subdivision entry features be proposed, details of the features be provided to Parks Design for review, along with cost estimates for initial construction and future repair/replacement of the features. Any subdivision entrance features shall conform to the City’s Entrance Feature Policy.

Fire Services

25. The developer shall ensure that at least two remote emergency access routes (roadways) are accessible and constructed in accordance with Municipal standards prior to the issuance of any building permits.

26. Site servicing drawings shall be submitted to the Fire Department demonstrating conformance to Section 4.6 (Hydrants) of the City of Niagara Falls Engineering Design Guidelines Manual for review and shall clearly indicate width of all roads, curbs radii and the location of all fire hydrants.

27. That adequate water for fire fighting purposes be available and accessible with sufficient volume and/or flow to facilitate firefighting operations prior to the construction of any building.

28. That parking restrictions be imposed to Fire Services satisfaction prohibiting parking on one side of road where the asphalt width is less than 8 m or on one side of the road within residential cul-de-sacs. The subdivision agreement is to specify the supply and installation of no parking signage are at the cost of the developer.

Bell Canada

29. The developer is hereby advised that prior to commencing any work within the Plan, the developer must confirm that sufficient wire-line communication/telecommunication infrastructure is currently available within the proposed development to provide communication/telecommunication service to the proposed development. In the event that such infrastructure is not available, the developer is hereby advised that the developer may be required to pay for the connection to and/or extension of the existing communication/telecommunication infrastructure. If the developer elects not to pay for such connection to and/or extension of the existing communication/telecommunication infrastructure, the developer shall be required to demonstrate to the municipality that sufficient alternative communication/telecommunication facilities are available within the proposed development to enable, at a minimum, the effective delivery of communication/telecommunication services for emergency management services (i.e. 911 Emergency Services).

30. The developer enter into an agreement (Letter of Understanding) with Bell Canada complying with any underground servicing conditions imposed by the municipality, and if no such conditions are imposed, the developer shall advise the municipality of the arrangement made for such servicing.

31. The developer acknowledges and agrees to convey any easement(s) as deemed necessary by Bell Canada to service this new development. The developer further agrees and acknowledges to convey such easements at no cost to Bell Canada.

The developer agrees that should any conflict arise with existing Bell Canada facilities where a current and valid easement exists within the subject area, the developer shall be responsible for the relocation of any such facilities or easements at their own cost.

Canada Post

32. That Community Mail Boxes (CMBs) be located in locations determined in cooperation with Canada Post, and that the developer identify these sites on a display in the sales office and on appropriate maps, information boards and plans.

33. The developer include in all offers of purchase and sale, a statement that advises the prospective purchaser that the home/business mail delivery will be from a designated CMB.

34. The developer satisfy all requirements of Canada Post regarding granting necessary easements for CMBs, concrete pads for CMBs, temporary CMBs, walkways to CMBs, curb depressions for wheelchair access, informing potential homeowners of CMB locations, timing of construction and identification of CMBs and related works on engineering servicing drawings.

Enbridge

35. The applicant shall contact Enbridge Gas Inc.’s Customer Connections department by emailing CustomerConnectionsContactCentre@Enbridge.com to determine gas availability, service and meter installation details and to ensure all gas piping is installed prior to the commencement of site landscaping (including, but not limited to: tree planting, silva cells, and/or soil trenches) and/or asphalt paving.

36. If the gas main needs to be relocated as a result of changes in the alignment or grade of the future road allowances or for temporary gas pipe installations pertaining to phased construction, all costs are the responsibility of the applicant.

37. In the event that easement(s) are required to service this development, and any future adjacent developments, the applicant will provide the easement(s) to Enbridge Gas Inc. at no cost.

Regional Municipality of Niagara

38. That the applicant submit a Stage 2 archaeological assessment (and any required subsequent archaeological assessments), as required by the licensed archaeologist or Ministry, to the Ministry of Tourism, Culture and Sport (MTCS) and receive an acknowledgement letter from the MTCS (copied to Niagara Region) confirming that all archaeological resource concerns have met licensing and resource conservation requirements prior to any development on the site. It should be noted that subsequent Stage 3 or 4 study may be recommended to mitigate any adverse impacts to significant archaeological resources found on the site through preservation or resource removal and documentation. If the licensed archaeologist or the Ministry recommends/requires further Stage 3 or 4 Archaeological Assessments, these report(s) must also be submitted to and acknowledged by the Ministry, to the satisfaction of Niagara Region, prior to clearance of this condition. No demolition, grading or other soil disturbances shall take place on the subject property prior to the issuance of a letter from the MTCS through Niagara Region confirming that all archaeological resource concerns have met licensing and resource conservation requirements.

39. That the following clause be included in the subdivision agreement:

“Should deeply buried archaeological remains/resources be found during construction activities, all activities impacting archaeological resources must cease immediately, and the proponent must notify the Archaeology Programs Unit of the Ministry of Tourism, Culture and Sport (416-212-8886) and contact a licensed archaeologist to carry out an archaeological assessment in accordance with the Ontario Heritage Act and the Standards and Guidelines for Consultant Archaeologists.

In the event that human remains are encountered during construction, all activities must cease immediately and the local police as well as the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-326-8800) must be contacted. In situations where human remains are associated with archaeological resources, MTCS should also be notified to ensure that the site is not subject to unlicensed alterations which would be a contravention of the Ontario Heritage Act.”

40. That the owner provides a written acknowledgement to Niagara Region Planning and Development Services Department stating that draft approval of this subdivision does not include a commitment of servicing allocation by Niagara Region as servicing allocation will not be assigned until the plan is registered and that any pre-servicing will be at the sole risk and responsibility of the owner.

41. That the owner provides a written undertaking to Niagara Region Planning and Development Services Department stating that all Offers and Agreements of Purchase and Sale or Lease, which may be negotiated prior to registration of this subdivision shall contain a clause indicating that servicing allocation for the subdivision will not be assigned until the plan is registered, and a similar clause be inserted in the subdivision agreement between the owner and the City.

42. That prior to final approval for registration of any phase of this plan of subdivision, the owner shall submit the design drawings [with calculations] for the sanitary and storm drainage systems required to service this development and obtain Ministry of the Environment Compliance Approval under the Transfer of Review Program.

43. That verification of the available wet weather sanitary capacity in the south Niagara Falls system required to accommodate development, be submitted for review and approval by the Niagara Region and City of Niagara Falls.

44. That prior to approval of the final plan of subdivision or undertaking any on-site grading or storm servicing, the applicant shall submit the following documents to Niagara Region for review and approval:

a. A Stormwater Management Report (stamped and signed by a professional engineer) details the stormwater management plan and associated calculations, modeling output and engineering drawings;

b. The applicant provides a written acknowledgement (stamped and signed by a professional engineer) that the stormwater management facility for the Chippawa East subdivision is sufficient to accommodate the proposed development;

c. Detailed plans of any modifications to the stormwater management facility, if required, to accommodate the proposed development;

d. Detailed lot grading, servicing and drainage plans, noting both existing and proposed grades and the means whereby overland flows will be accommodated across the site; and,

e. Detailed erosion and sedimentation control plans;

45. That the applicant submit a written undertaking to Niagara Region which acknowledges coordination with the owner of the Chippawa east subdivision (where the future stormwater management facility will be located) to ensure construction of the stormwater management facility will coincide with, or be completed prior to, the proposed development. This condition will not be cleared until the stormwater management facility is constructed.

46. If the applicant proposes to construct a stormwater management facility on the subject property, the applicant shall submit a Stormwater Management Report and all associated engineering drawings to the Niagara Region for review and approval prior to final approval of the subdivision or the undertaking of any on- site grading or storm servicing works. A qualified professional engineer must stamp and sign the submitted documents, in accordance with the Ministry of the Environment, Conservation, and Parks’ Stormwater Management Planning and Design Manual (2003) and the Niagara Peninsula Conservation Authority’s Stormwater Management Guidelines (2010). The required stormwater management engineering submission shall include (but not be limited to):

a. Detailed lot grading, servicing and drainage plans, noting both existing and proposed grades and the means whereby overland flows will be accommodated across the site.

b. Detailed construction phasing of the proposed stormwater management facility to coincide with phasing of development on the residential lands planned to be serviced by the stormwater management facility.

c. Detailed erosion and sedimentation control plans.

47. That the subdivision agreement between the applicant and the City contain provisions whereby the applicant agrees to implement the approved plan(s) required in accordance with the stormwater management conditions above.

48. Prior to any construction taking place within Regional road allowance the owner shall obtain a Regional Construction Encroachment Permit. Applications must be made through the Permits Section of the Niagara Region Public Works Department (Transportation Services Division).

49. That the applicant ensures that all streets and development blocks can provide an access in accordance with the Regional Municipality of Niagara Corporate Policy and By-laws relating to the curbside collection of waste and recycling throughout all phases of development. Where a through street is not maintained, the applicant shall provide a revised draft plan to reflect a proposed temporary turnaround/cul-de-sac with a minimum curb radius of 12.8 metres.

50. That the subdivision agreement between the owner and the City contain a provision whereby the owner agrees to obtain a certificate from an Ontario Land Surveyor stating that all existing and new survey evidence is in place at the completion of the development.

NOTES:

1. Prior to granting final plan approval, the City must be in receipt of written confirmation that the requirements of each condition have been met and all fees have been paid to the satisfaction of Niagara Region.

2. Prior to final approval for registration, a copy of the draft subdivision agreement for the proposed development should be submitted to the Niagara Region for verification that the appropriate clauses pertaining to any of these conditions have been included. A copy of the executed agreement shall also be provided prior to registration.

3. In order to request clearance of the above noted Regional conditions, a letter outlining how the conditions have been satisfied, together will all studies and reports (one hardcopy and a PDF digital copy), the applicable review fee, and the draft subdivision agreement shall be submitted to the Niagara Region by the applicant as one complete package, or circulated to the Niagara Region by the City of Niagara Falls.

Clearance of Conditions

Prior to granting approval to the final plan, Planning, Building & Development requires written notice from applicable City Divisions and the following agencies indicating that their respective conditions have been satisfied:

• Legal Services for Conditions 2 and 3
• Planning and Development Services for Conditions 4 to 8 inclusive
• Transportation Services for Condition 9
• Municipal Works for Conditions 9 to 22 inclusive
• Landscape Architect for Conditions 23 to 24 inclusive
• Fire Services for Conditions 25 to 28 inclusive
• Bell Canada for Conditions 29 to 31 inclusive
• Canada Post for Conditions 32 to 3 inclusive
• Enbridge for Conditions 35 to 37 inclusive
• Regional Municipality of Niagara for Conditions 38 to 50 inclusive