Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 06, 2023
CASE NO(S).: OLT-22-004754
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Bradford Capital Holdings Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To facilitate the development of two single detached dwellings and fifteen townhouse dwellings
Reference Number: D14 -19 -16
Property Address: Block 402, Block 403, on Plan 51M - 1063
Municipality/Upper Tier: Township of Bradford West Gwillimbury/ County of Simcoe
OLT Case No.: OLT-22-004754
OLT Lead Case No.: OLT-22-004754
OLT Case Name: Bradford Capital Holdings Inc. v. Bradford West Gwillimbury (Town)
Heard: June 1, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Bradford Capital Holdings Inc.
Kyle Gossen Neil Palmer
Bradford West Gwillimbury (“Town”)
Leo Longo
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON JUNE 1, 2023 AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The Tribunal convened a Hearing on an appeal filed by Bradford Capital Holdings Inc. (“Applicant/Appellant”) against the Town of Bradford West Gwillimbury (“Town”) regarding Council’s non-decision of an application for an amendment to Zoning By-law No. 2010-050 (“ZBL”) concerning Block 403 on Plan 51 M -1063 (“Subject Lands”).
2The purpose of the Proposed ZBA is to rezone the Subject Lands from Neighbourhood Commercial (C2) to Residential TwoException (R2-25). The proposed Residential TwoException (R2-25) Zone is the same exception zone that applies to the other townhouse blocks throughout the broader Bradford Capital Subdivision.
3The Proposed ZBA would facilitate the development of a total of 15 townhouse dwelling units (freehold tenure), within one 7-unit building fronting onto Inverness Way and two 4-unit townhouse buildings fronting onto Fortis Crescent.
4To implement the Proposed Development, the following site-specific exceptions are proposed through the Residential TwoException (R2-25) Zone:
a. Maximum height shall be 13.0 metre (“m”);
b. Notwithstanding Section 4.30.1, the minimum sight triangle for a local street to a collector street shall be 5.0 m.
BRIEF CHRONOLOGY OF THE APPLICATION
5The Subject Lands are zoned Neighbourhood Commercial (C2) on ‘Schedule B’ Map 23 to the Town ZBL. The proposed residential uses are not permitted under the existing zoning permissions of the Town Zoning By-law. Accordingly, an amendment to the Town Zoning By-law is required to permit and regulate the proposed uses.
6On October 10, 2019, the Applicant/Appellant submitted an application for a ZBLA to the Town to rezone the Subject Lands and an additional Block for residential uses. More specifically, the application would facilitate the development of two single- detached dwelling units within Block 402 and fifteen townhouse dwellings within Block 403. By letter dated October 24, 2019, the Application was deemed complete on October 23, 2019.
7A Public Information Meeting was held by the Town on December 17, 2019. Following the Public Information Meeting, the Applicant/Appellant requested that the Town finalize the processing of the Application only as it related to Block 402, while reserving its decision related to Block 403. Town Council approved the Application as it related to Block 402 on August 4, 2020.
8Through the processing of the Application, concerns were raised by Town Staff and the public with respect to the proposed residential uses and lack of commercial uses on Block 403. In response to these concerns, in December 2021, the Applicant/Appellant submitted an Updated Retail Market Study, dated August 2021, which concluded that commercial uses on Block 403 would not be viable. A revised draft ZBLA pertaining only to the Block 403 was also submitted in December 2021.
9Town Council failed to make a decision on the requested ZBLA for Block 403 within 90 days of the Application being submitted. Subsequently, the Applicant/Appellant filed a Notice of Appeal on November 23, 2022.
PROPOSED SETTLEMENT
10Upon the commencement of the hearing, Kyle Gossen, counsel for the Applicant/ Appellant, advised of a settlement reached between the Applicant/Appellant and the Town.
11Bradford Capital Holdings Inc. and the Town (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeal and wish to reflect their agreement in Minutes of Settlement (“MOS”) in accordance with Attachment A (proposed ZBLA) to this Order and agree to place the proposed settlement herein before the Tribunal for approval.
12Through the MOS, Bradford Capital Holdings Inc. have agreed to file a formal pre-consultation request and an application for ZBLA to permit a neighbourhood commercial development on Block 404 on Registered Plan 51M- 1063. This provision of Block 404 for commercial development is intended to replace the loss of commercial development zoning from the proposed rezoning of Block 403 from commercial to residential development zoning.
13Block 404 is owned by Bradford Capital Holdings Inc. and is located east of the Subject Lands and west of Simcoe Road, south of Line 6, and has an area of approximately 0.36 hectares (“ha”). Block 404 is currently vacant and generally flat with some trees scattered on the property.
14Block 404 is designated ‘Settlements’ on Schedule 5.1 ‘Land Use Designations’ of the County Official Plan. Permitted uses within the Settlements designation include residential dwellings, commercial, industrial, institutional, and recreational land uses, subject to certain criteria.
15Block 404 is designated ‘Residential’ as Schedule SP-1 to the Community Plan. Pursuant to Section 6.1.1 of the Community Plan, permitted uses within the Residential designation include single detached dwellings, semi-detached dwellings, duplex dwellings and street fronting townhouse dwellings.
16Section 6.1.4 of the Community Plan provides that uses which support and/or compliment the permitted residential land use may be permitted in the Low-Density Residential designation, which includes neighbourhood commercial uses, amongst others. Under the Neighbourhood Commercial designation, permitted uses include retail stores and service shops, provided the use is compatible with adjacent residential development.
17Block 404 is designated ‘Residential Built up’ and ‘Special Policy Area 6 – Simcoe Road Residential Development’ on Schedule B-1, Land Use Bradford Urban Area to the New Town OP. Permitted uses on lands designated Residential Built up include Low Density Residential uses, Medium and high density residential uses and Neighbourhood commercial uses such as convenience stores, personal service establishments, small-scale eating establishments, and other similar convenience commercial uses that serve the day-to-day needs of the area.
18Section 6 of the New Town OP provides that the policies of the plan are modified as set out in the various Special Policy Area overlays. Within lands identified as Special Policy Area 6, permitted uses include low density residential and cluster townhouses. Additionally, uses in the Neighbourhood Commercial designation are permitted, provided the proposal is compatible with adjacent residential development.
19Block 404 is currently zoned ‘Future Development (FD)’ on Schedule ‘B’ Map #23 to the Town’s ZBL.
20The MOS identifies that the Parties will be requesting that the Tribunal withhold its final Order until such time as the Tribunal is advised that the Block 404 Application has been deemed complete by the Town.
WITNESS
21Evidence in support of the proposed application was provided by the Appellant’s witness, Tim Schilling, who was qualified on consent by the Tribunal to give opinion evidence in the area of Land Use Planning.
22The Tribunal received and marked the following new documents as Exhibits to the Hearing:
Exhibit 2: Minutes of Settlement dated May 18, 2023
Exhibit 3: Affidavit of Tim Schilling dated 19 May 2023
THE SUBJECT PROPERTY
23The Subject Lands are located in the Settlement Area of Bradford and are currently vacant.
24The Subject Lands are legally described as Block 403 on Registered Plan 51M- 1063 and are a part of the Bradford Capital Subdivision. The Subject Lands have an area of approximately ±0.394 ha and have frontage on three public roads; with approximately 65 m of frontage along 6th Line to the north; approximately 59 m of frontage along Inverness Way to the west; and approximately 59 m of frontage along Fortis Crescent to the east.
Provincial Policy Statement, 2020 (“PPS”)
25Mr. Schilling highlighted sections 1.1.1, 1.1.3.1 and 1.1.3.2 of the PPS which promote growth in settlement areas and provides that full municipal sewage service and municipal water services are the preferred method of servicing within settlement areas. Mr. Schilling advised that the Subject Lands are located within the existing Bradford Settlement Area Boundary and are proposed to be serviced via existing municipal water and wastewater systems.
26According to Mr. Schilling, the Proposed ZBA will facilitate development that addresses the PPS with respect to the efficient use of land and infrastructure and the provision of an appropriate mix of densities and housing typology that are compatible with surrounding land uses.
27Mr. Schilling submits s. 1.4.1, 1.4.2 and 1.4.3 provide a series of housing policies which seek to provide an appropriate range and mix of housing forms, including affordable housing. Mr. Schilling advised the Subject Lands are designated ‘Residential’ and ‘Potential Neighbourhood Commercial’ within the Community Plan and ‘Low Density Residential’ and ‘Special Policy Area 5’ in the New Town OP. The Proposed ZBA will facilitate the Proposed Development, which contributes to providing a mix of housing types and densities that are appropriate with existing uses within the Bradford Capital Subdivision and the broader surrounding area. The Proposed Development will expand housing options and assist in diversifying the existing supply and stock of housing options in the Town, improving accessibility and affordability.
28It is Mr. Schilling’s opinion, with which the Tribunal agrees, that the proposed ZBA is consistent with the PPS.
Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”)
29Mr. Schilling highlighted s. 2.2.1 and 2.2.6 of the Growth Plan that provide that growth shall be directed to settlement areas to accommodate forecasted growth, provide housing choice and support the achievement of complete communities. According to Mr. Schilling, the Subject Lands are identified as within the Settlement Area of Bradford and are more specifically identified as a Designated Greenfield Area. Should the Proposed Development be permitted to proceed, it will contribute to residential growth within the community. Further, the Subject Lands are proposed to be serviced by existing water and wastewater systems.
30Mr. Schilling submits the Growth Plan, through s. 2.2.7, provides a framework for development which occurs in Designated Greenfield Areas of a municipality. Within the County, a target of 40 residents and jobs combined per hectare is established, which is to be measured over the entire designated greenfield area within the County. The proposed development would assist in achieving these targets by intensifying currently vacant and underutilized lands.
31Mr. Schilling advised s. 6.3.1, 6.3.2 and 6.3.4 of the Growth Plan provide specific policy direction to lands located in the Simcoe Sub-Area, related to focusing growth in primary settlement areas. The Subject Lands are located within the Settlement Area of Bradford, which is identified as a Primary Settlement Area on Schedule 8 – Simcoe Sub Area to the Growth Plan.
32In Mr. Schilling’s opinion, with which the Tribunal agrees, the proposed ZBA conforms to the Growth Plan.
Lake Simcoe Protection Plan, 2009 (“LSPP”)
33Mr. Schilling advised that the Designated Policy 1.1 of the LSPP requires lands that are within the boundary of the Lake Simcoe Watershed to be subject to all applicable policies of the LSPP. Designated Policy 4.8 outlines the requirement of a stormwater management plan for all major developments. Designated Policy 4.20 requires that municipalities ensure appropriate measures are incorporated into subdivision agreements and site plan agreements to ensure the removal of vegetation, grading and soil compaction is kept to a minimum, to control and convey runoff and to minimize sediment erosion during construction through erosion and sediment control.
34Mr. Schilling submits that the Subject Lands are situated within an existing approved Draft Plan of Subdivision, the Bradford Capital Subdivision. The Proposed ZBA will not extend urban uses or services beyond that which was initially contemplated in the initial Draft Plan of Subdivision, but rather will allow for the introduction of residential uses on lands that are designated Residential. Appropriate measures for sediment control were secured and satisfied through the subdivision agreement prepared for the Bradford Capital Subdivision.
35According to Mr. Schilling, the Designated Policies 6.32 to 6.34 of the LSPP are applicable to development within existing settlement areas including Bradford. These designated policies apply to developments in close proximity to natural and environmental features and require that applications for development or site alteration establish buffer areas consisting of natural self-sustaining vegetation that will improve fish and wildlife habitat and movement corridors and minimize and/or mitigate impacts associated with the quality and quantity of urban run-off. The Proposed ZBA is applicable to lands which are already zoned and designated for urban uses. The previous development approvals, which permitted urban uses on the Subject Lands and the broader Bradford Capital Subdivision, established appropriate setbacks and stormwater management techniques to permit the proposed urban uses. Such setbacks and stormwater management techniques are not being modified pursuant to the Proposed ZBA.
36In Mr. Schilling’s opinion, with which the Tribunal agrees, the proposed ZBA conforms to the LSPP.
Simcoe County Official Plan, 2016 (“County OP”)
37The County OP received partial approval from the Ontario Municipal Board on December 29, 2016. According to Mr. Schilling, the Subject Lands are designated ‘Settlements’ on Schedule 5.1 ‘Land Use Designations’ to the County OP and more specifically the Settlement Area of Bradford on Table 5.1 of the County OP. Residential land uses are permitted under the ‘Settlements’ designation.
38Mr. Schilling advised Table 5.1 to the County OP also identifies that Bradford is a Primary Settlement Area as identified on Schedule 5.1.2 of the County OP.
39Mr. Schilling advised s. 3.5.7 of the County OP provides that primary settlement areas are larger settlement areas suitable for high density targets and which are expected to develop as complete communities. Municipalities with primary settlement areas are directed to focus and direct a significant portion of their population and employment forecasted growth to the applicable primary settlement areas.
40S. 3.5.24 of the County OP identifies the applicable minimum Designated Greenfield Area density target for each lower-tier municipality. The Designated Greenfield Areas minimum density target for the Town is 35 residents and jobs per hectare. Mr. Schilling advised that the Town’s 2019 Development Charge Background Study identified that townhouses have a 2031 forecast of 2.44 persons per unit. Based on the total number of units proposed, this equates to 36.6 people per hectare. The proposed development exceeds the minimum density targets provided by the County OP.
41In Mr. Schilling’s opinion, with which the Tribunal agrees, the proposed ZBA conforms to the County OP.
Town of Bradford West Gwillimbury Official Plan, (2002) (“Town OP”)
42The Subject Lands are located within the Bradford Urban Area and are designated ‘Residential’ on Schedule ‘B’ – Bradford Urban Area Land Use Designations on the Town OP.
43Mr. Schilling advised s. 4.6.3 of the Town OP identifies that all new development will require storm water management facilities. The Subject Lands will be serviced by a stormwater management pond within the Bradford Capital Subdivision, which was designed to accommodate stormwater flows from the Subject Lands.
44Mr. Schilling informed that s. 5.3.1.1 and 5.3.1.6 of the Town OP identify that the Residential designation allows a mix of residential densities and dwelling types, including townhouse/rowhouse dwellings, which shall not exceed a density of 40 units per developable hectare.
45According to Mr. Schilling, the proposed townhouse dwelling units are permitted within the Residential designation and the Proposed Development of 15 townhouse dwelling units equates to a density of approximately 38.07 units per developable hectare within the maximum density threshold for medium density developments.
46In Mr. Schilling’s opinion, with which the Tribunal agrees, the proposed ZBA conforms to the Town OP.
Official Plan Amendment No. 19, the Green Valley Community Plan (Area 1), 2009 (the “Community Plan”)
47The Subject Lands are designated ‘Residential’ and ‘Potential Neighbourhood Commercial’ on Schedule SP-1 to the Community Plan.
48Mr. Schilling highlighted s. 3.2.1 to 3.2.4 of the Community Plan which provide direction related to the forecasted population for the Community Plan. A minimum population of 2,735 was contemplated (inclusive of a minimum population of 1,432 for lands west of Simcoe Road), as was a maximum density of 24 units per hectare for residential development.
49According to Mr. Schilling, at the time of Draft Plan of Subdivision Approval the Bradford Capital Subdivision contemplated the development of 504 total units within approximately 21.56 hectares of net developable land. This equated to a projected population of 1,583 residents and a density of approximately 23.37 units per net developable hectare.
50The addition of the seventeen units contemplated by the Original ZBA was projected to yield a total of 521 total units within approximately 21.97 hectares of net developable land, for a projected population of 1,636 residents and a density of approximately 23.71 units per net developable hectare. According to Mr. Schilling, this conforms to the minimum population projection of 1,432 persons and maximum permitted density of 24 units per net developable hectare. As a result, the Proposed ZBA permitting the addition of 15 units on the Subject Lands will continue to conform to the minimum population projection and maximum permitted density for the Bradford Capital Subdivision.
51S. 6.1.1 to 6.1.5 of the Community Plan provide direction with respect to the authorized uses of land within the Low-Density Residential designation, including complimentary and supportive uses and, in the case of the Subject Lands, uses authorized within the lands identified as ‘Potential Neighbourhood Commercial’ on Schedule SP-1 to the Community Plan.
52Mr. Schilling contends that the Proposed ZBA introduces permissions for residential townhouse uses which are contemplated by the above noted sections of the Community Plan. It is also noted that the neighbourhood commercial site is identified as a potential site but it is not prescribed.
53S. 6.2.1 to 6.2.5 of the Community Plan provide direction related to site design, directing a mix of lot sizes and building types. Mr. Schilling advised that the Proposed Development has been designed with a consistent building face fronting onto Inverness Way and Fortis Crescent.
54Mr. Schilling contends that the Conceptual Site Development Plans, building elevations and artistic renderings (the “Architectural Set”) were submitted in connection with the Original ZBA, which identify the proposed built form of the Proposed Development. The Architectural Set shows the garages for all proposed townhouse dwellings recessed behind the main building façades or front porchs, reducing the impact of the garages on the streetscape and contributing to a diverse streetscape image.
55Mr. Schilling advised s. 10.2 of the Community Plan provides that all new development within the Community Plan be fully serviced via municipal water and wastewater systems. The Proposed Development will be serviced by existing municipal water and sanitary services.
56In Mr. Schilling’s opinion, with which the Tribunal agrees, the proposed ZBA conforms to the Community Plan.
Public Consultation
57Mr. Schilling summarized public comments for the Tribunal. Regarding one concern with respect to the preservation of a tree line, Mr. Schilling testified the tree line relates only to the Block 402 Lands and does not affect the Subject Lands. As such, this concern is not relevant for the purposes of the Appeal.
58In regard to comments from the public and clarification from the Tribunal on the proposed residential uses on the Subject Lands and a preference for commercial development, Mr. Schilling testified, the basis of the MOS is the provision of another site, the Block 404 Lands, which is suitable for commercial purposes. In his opinion, the provision of another suitable site for commercial purposes effectively offsets the affect of the Proposed ZBA in rezoning the Subject Lands from a commercial zone category to a residential zone category and addresses this concern.
FINDINGS AND DISPOSITION
59In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Mr. Schilling regarding Block 403 specifically. The Tribunal is persuaded by the evidence that the Proposed ZBA has regard for the applicable provisions of the Act, is consistent with the PPS, and conforms with the Growth Plan, the LSPP, the County OP, the Town OP and the Community Plan.
60The Tribunal acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.
ORDER
61THE TRIBUNAL ORDERS the Appellant’s appeal is allowed in part, and the instrument is approved in principle in accordance with Attachment "A” (Zoning By-law Amendment) to this Order;
62AND THE TRIBUNAL FURTHER ORDERS that its Final Order will issue only once the Tribunal is advised that the Block 404 Zoning Amendment Application has been deemed complete by the Town;
63AND THE TRIBUNAL FURTHER ORDERS that it may be spoken to in the event any matter or matters should arise in connection with the implementation of this Order.
“Eric S. Crowe”
ERIC S. CROWE
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 “A”
ZONING BY-LAW AMENDMENT
The Corporation of the Town of Bradford West Gwillimbury
BY-LAW 2023-XX
A By-law to amend Zoning By-law 2010-050, as amended, to re-zone Block 403 on Registered Plan 51M-1063, Town of Bradford West Gwillimbury, County of Simcoe.
WHEREAS By-law 2010-050, as amended is the main comprehensive Zoning By-law of the Town of Bradford West Gwillimbury;
AND WHEREAS By-law 2010-050, as amended zones Block 403 on Registered Plan 51M-1063 as Neighbourhood Commercial “C2”;
AND WHEREAS the Ontario Land Tribunal deems it appropriate to amend Zoning By-law 2010-050, as amended, for those lands identified as Block 403 on Registered Plan 51M-1063;
AND WHEREAS authority is granted under Sections 34 of the Planning Act, R.S.O. 1990, c. P. 13;
NOW THEREFORE the Ontario Land Tribunal enacts as follows:
All provisions of By-law 2010-050, as amended, shall apply to the lands described as Block 403 on Registered Plan 51M-1063, Town of Bradford West Gwillimbury, County of Simcoe as shown on Schedule "A" attached hereto.
By-law 2010-050, as amended, is hereby further amended by rezoning the lands described as Block 403 on Registered Plan 51M-1063 from the ‘C2 – Neighbourhood Commercial’ Zone to the ‘R2-2*5 – Residential Two’ Zone as shown on Schedule "A" attached hereto and forming part of this By-law.
This By-law shall come into force and take effect on the date it is finally approved by the Ontario Land Tribunal through issuance of its written Final Order in Case No. OLT-22-004754.