Lanewood Development Corporation v. Brantford (City), 2023 CanLII 5450

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 24, 2023

CASE NO(S).: OLT-22-003890

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

Applicant and Appellant: Lanewood Development Corporation

Subject: Application to amend Zoning By-law No. 160-90 – Refusal of application by Town of Brantford

Existing Zoning: Flood-Mixed Commercial Residential Exception 2 (F-C3-2)

Proposed Zoning: Flood -Residential Hight Density Exception 3 Zone (F-RHD-3)

Purpose: To permit a development with 186 additional residential units.

Property Address/Description: 248-260 Grand River Avenue

Municipality: City of Brantford

Reference No.: PZ-10-2021

OLT Case No.: OLT-22-003890

OLT Lead Case No.: OLT-22-003890

OLT Case Name: Lanewood Development Corporation v. Brantford (City)

Heard: December 15, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Lanewood Development Corporation

Shelley Kaufman Scott Snider (In Absentia)

City of Brantford

Geoff Daley

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND G.C.P. BISHOP ON DECEMBER 15, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a merit Hearing for Tribunal case number OLT-22-003890 concerning an appeal under section 34(11) of the Planning Act (“Act”) by Lanewood Development Corporation (“Appellant/Applicant”) to the City of Brantford’s (“City”) refusal, on April 26, 2022, of a Zoning By-Law Amendment (“ZBA”) application to rezone lands known municipally as 248-260 Grand River Avenue in the City (“Subject Property”).

2The ZBA application was submitted to facilitate the development of the Subject Property, consisting of two six-storey residential buildings containing 318 units (“Proposed Development”). There is currently a 6-storey building with 132 units already built, and the Proposed Development would add 186 new units, that would be supported by 328 surface and ground floor parking spaces for the existing as well as new buildings. Additionally, approximately 1,400 square metres of private amenity space is proposed.

3The proposed ZBA will amend the zoning at 256-260 Grand River Avenue from “Flood - Mixed Commercial Residential Exception 2 (F-C3-2)”, to “Flood – Residential High Density Exception 3 Zone (F-RHD-3)”. The ZBA also replaces the existing site-specific provisions of the “Flood – Residential High Density Exception 3 zone (F-RHD-3)” by establishing Grand River Avenue as the front lot line, permitting a total of 318 apartment units, as well as a parking ratio of 1.03 spaces per unit. No changes are proposed to the maximum height requirement of six (6) stories or to the gross floor area.

BACKGROUND OF THE PROPOSAL

4In 2008, City Council approved a ZBA to permit two six-storey apartment buildings and 24 townhouses for a total of 156 units on the property located at 248 Grand River Avenue. The amendment was appealed and in 2010 an agreement was reached between the appellants, the applicant and the City which was endorsed by the Ontario Municipal Board (“OMB”) as the Tribunal was then known. Site plan approval, associated with the 2010 ZBA decision, was granted in 2020 with the construction of one of the approved six-storey apartments occurring later that year. The building offers affordable housing opportunities by offering rents at 30%-40% of market rates.

5Following the Appellant/Applicant’s acquisition of the Subject Property (specifically 256, 258 and 260 Grand River Avenue), a ZBA application was submitted to the City to permit two six-storey apartment buildings consisting of 108 units each with surface parking of approximately 261 parking spaces (0.75 spaces per unit) and roof-top amenity space.

6The City issued a Notice of Completion on June 29, 2021. Following receipt of comments from the first submission, a second submission was provided to the City on December 7, 2021. The second submission revised the Proposed Development to consist of two six-storey residential buildings containing 186 new units for a total of 318 units (inclusive of the existing 132 units). The second submission proposed: 318 parking spaces for the existing and proposed buildings; approximately 1,400 square metres of private amenity space to be provided within areas located on the balconies, roof-top or dedicated areas located at the surface elevation; and an enclosed bicycle parking room at the ground floor and additional bicycle parking at the entrances of both buildings.

7Several neighbourhood meetings, virtual and in-person, were convened to provide the public an opportunity to submit comments and feedback on the Proposed Development. The concept site plan was updated to make adjustments to several areas including landscaping, amenity and parking. Revisions were made to increase the parking supply from 318 parking spaces to 328 spaces, a rate of 1.03 spaces per unit. These revisions were submitted to the City.

8The statutory public meeting was held on April 12, 2022. During the meeting, the proposed ZBA was presented to the Committee of the Whole (“COW”) for consideration alongside City Staff’s recommendation of approval. Council raised concerns regarding on-street parking, specifically that there was some concern that residents of the existing apartment building were over utilizing on-street parking as a result of their current tenancy agreements which “unbundle” parking fees from rent. Prior to the vote, an amendment was brought forward to make the ZBA application conditional on the price for parking being removed from the current building. The COW voted 6:1 to approve the Proposed Development with the amendment.

9The ZBA, alongside the COW recommendation, was brought to the April 26, 2022 City Council meeting for implementation. During the meeting, the Appellant/Applicant advised Council that the proposed condition to the approval, being the price for parking being removed from the current building, was problematic as a result of existing funding and tenancy agreements. The proposed building receives funding support from CMHC both as a result of the brownfield remediation work which occurred and the provision of rent at 30%-40% lower than market rates. As such, the amendment proposed on April 12, 2022 was requested to be removed. However, the motion in front of Council failed, resulting in the refusal of the ZBA application.

SUBJECT PROPERTY

10The Subject Property is located on the southeast corner of Jamieson Court and Grand River Avenue in the City. The lands at 248 Grand River Avenue were formerly occupied by the “Penman’s Factory,” and currently house a six-story building described above. The lands at 256 and 258 contain a semi-detached dwelling unit and 260 Grand River Avenue is currently vacant.

11The Subject Property is approximately 2.05 hectares, with 200 metres (“m”) of frontage along Grand River Avenue. The Subject Property also has “frontage” onto Jamieson Court, but no access is contemplated through this Proposed Development.

12The Subject Property is designated as “Residential Designation” on Schedule 3 –Land Use Plan of the City’s Official Plan (“City’s OP”). The Subject Property is also located in Special Policy Area 1 on Schedule 7-1 – Floodplain of the Brantford Official Plan. The surrounding designations include “Residential Designation” to the west, north and east and “Core Natural Areas Designation” to the south.

13In the City’s Zoning By-Law 160-90 (“City’s ZBL”), the Subject Property is zoned “F-RHD-3” – Flood-Residential High Density Zone and “F-C3-2” Flood-Mixed Commercial Residential Zone. The surrounding zones include “F-R1C” – Flood-Residential Type 1C – 12 Metre Zone to the west, “F-RC” – Flood-Residential Conversion to the north, “F-C3-11”- Flood-Mixed Commercial Residential Zone to the east and “OS3” – Open Space Restricted Zone to the south.

14The Subject Property is surrounded by the following land uses:

a. West: Jamieson Court and beyond that the land is comprised of generally low-density residential dwellings consisting of single-detached dwellings.

b. North: Grand River Avenue and beyond that the land is comprised of generally low-density residential dwellings consisting of single-detached and semi-detached dwellings.

c. East: 202 Grand River Avenue which is occupied by commercial buildings which have been repurposed from former textile factories.

d. South: Grand River as well as a public bike trail.

HEARING

15A few days in advance of the Hearing, the Tribunal was advised that the Parties had negotiated a settlement and the matter before the Tribunal was converted to a Settlement Hearing.

16The Appellant/Applicant called Nick Wood as its planning witness who was qualified by the Tribunal, without objection, to provide expert evidence in the area of Land Use Planning. Mr. Wood’s CV and Acknowledgement of Expert’s Duty were provided and made exhibits to the Hearing. He provided a detailed contextual and land use planning rationale to support the settlement by reviewing the Act, provincial policies, the City’s OP, and the City’s ZBL. He concluded that the ZBA, before the Tribunal, will facilitate the build out of the Proposed Development and satisfies all legislative tests and constitutes good planning.

17In support of his conclusion, Mr. Wood testified as follows:

a. The Planning Act: In section 2 of the Act, matters of provincial interest are identified. The Proposed Development has regard for matters of provincial interest identified in s. 2 of the Act, and specifically for s. 2(h)(j)(n)(p)(q)(r)(s).

b. Provincial Policy Statement, 2020 (“PPS”): The Act requires that planning matters shall be consistent with policy statements issued by the Province of Ontario, including the PPS. The ZBA is consistent with the PPS, such as sections 1.1, 1.1.3.2, 1.1.3.3, and 1.4.3. The Proposed Development is located within a Settlement Area within the PPS. Settlement Areas are to be the focus for growth and development. Moreover, the Proposed Development will intensify an under-utilized property in a manner which is cognizant of the proximity of the Subject Property to the downtown, transit and public infrastructure. The Proposed Development will introduce additional housing forms in a manner which is compatible with surrounding residential types but which can also accommodate a range of households.

c. A Place to Grow – Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”): Schedule 2 of the Growth Plan depicts the Subject Property as located within the Built-Up Area – Conceptual. The Growth Plan directs that the vast majority of growth is to be directed to settlement areas with specific focus directed to delineated built-up areas, strategic growth areas, locations within existing or planned transit and areas with existing or planned public service facilities (Section 2.2.1.2). The Growth Plan sets out a minimum intensification target for the City that 50% of all residential development is to be achieved within the Delineated Built-Up Area (Section 2.2.2.1). The Growth Plan directs that municipalities are to support housing choice through the achievement of minimum intensification and density targets and by identifying a diverse range and mix of housing options and densities. Further, the Growth Plan advises that municipalities are to implement these housing directions (including others) within official plan policies and designations and zoning (Section 2.2.6.1). The Proposed Development will contribute to a complete community by offering housing types which can accommodate a range of household types, sizes and incomes, and will ensure additional housing in close proximity to the downtown, offering residents opportunities to utilize non-automobile means of transportation through the provision of year-round, enclosed bicycle parking and direct access to existing multi-purpose trails, located to the immediate south of the Subject Property. The ZBA conforms to the Growth Plan.

d. City of Brantford Official Plan, 2021 (“City’s OP”): In the City’s OP, the Subject Property is identified and designated as:

i.“Neighbourhoods” on Schedule 1 – Growth Management;

ii.“Residential Designation” on Schedule 3 – Land Use Plan, which permits a range of residential types include mid-rise and high-rise buildings, subject to specific policy criteria;

iii.Within the “Core Natural Areas Designation” and “Adjacent Lands Overlay (90m)” on Schedule 6 – Natural Heritage System;

• Of note, although portions of the Subject Property are found in the Core Natural Area Designation, no development is proposed in these locations.

iv.Within the “Special Policy Area 1” on Schedule 7-1 – Floodplain.

The City’s OP requires that 45% of all new residential development occur within the Delineated Built-Up Area on an annual basis until 2031. Intensification within neighbourhoods is to be limited to compatible infill on vacant lots and underutilized land (Section 4.3). The residential designation is intended to evolve with compatible development playing a role in achieving the overall target for residential intensification in the Built-Up Area.

The City’s OP provides specific direction on policies and criteria for mid-rise buildings which are to be between 3 and 6 storeys in height and including apartment buildings (section 5.2.1 (j)). In this case, the mid-rise development criteria policies of Section 5.2.1 (j) have been achieved as the Proposed Development is to be located on a site which is suitable to appropriately accommodate landscaping, amenity features, buffering, parking and garbage, all of which will be refined through Site Plan Control. Parking is proposed within at-grade, enclosed structures as well as surface parking areas located to the side and rear of the buildings. Further, due to the proximity of the Subject Property to the Grand River, underground parking is not possible as a result of flood mitigation policies established within Special Policy Area 1. The Proposed Development is located on a minor collector road (Grand River Avenue) and immediately north of the existing Grand River trail and is in close proximity to multiple parks. A transit stop is located at the corner of Grand River Avenue and Morell Street.

The Proposed Development will result in a use and intensification which achieves the policies of the City’s OP. It has been designed to introduce new housing opportunities in a manner which is compatible but takes advantage of the locational attributes of the Subject Property. The development has also been designed to incorporate both public and private amenity infrastructure. As such, the Proposed Development conforms to the City’s OP.

e. City of Brantford Zoning By-law 160-90 (“City’s ZBL”): The Subject Property is zoned “Flood-Residential High Density – Exception 3 Zone” (F-RHD-3) and “Flood-Mixed Commercial Residential-Exception 3 Zone” (F-C3-2). The Exception 2 to the C3 zone permits additional uses including existing industrial uses such as manufacturing uses, wholesaling uses, warehouse uses, research uses, accessory general offices and accessory retail sales. The exception requires that existing industrial uses are to be used in accordance with section 10.2.2 of the City’s ZBL. The “F” prefix is applied to lands located within a flood zone. This prefix prevents basements and restricts certain uses such as schools and hospitals. Parking for apartment dwellings is established at a rate of 1.5 spaces / dwelling unit, which would mean that the Proposed Development would therefore require 477 parking spaces.

The Proposed Development is seeking to amend the City’s ZBL to rezone the Subject Property in its entirety to “Flood – Residential High Density – Exception 3 Zone (F-RHD-3) in accordance with the following provisions:

• Lot Area (minimum) – 20,485 sq. m.

• Number of dwelling units – 318

• Building Height (maximum) – 6 storeys

• Landscaped Open Space (minimum) – 31%

• Gross Floor Area (minimum):

o one bedroom – 38.9 sq. m to 54.3 sq. m.

o two bedroom – 59.5 sq. m to 80.6 sq. m.

o three bedroom – 87.6 sq. m to 95.8 sq. m.

• Parking (minimum) – 1.03 spaces per unit x 318 = 328

• Amenity Space (minimum) – Outdoor=825 sq. m.

• Rooftopx2=12,998 sq. m., Total=13,823 sq. m.

The requested reduction in lot area is appropriate given that the Proposed Development will result in an appropriate form of intensification while maintaining compatibility. The proposed increase in the number of dwelling units is appropriate given the requirement for the municipality to achieve the 45% intensification target of all residential units within the Delineated Built-Up Area. The requested reduction in minimum landscape open space is appropriate as adequate buffering and planting materials have been contemplated and will be enshrined through Site Plan Control. The proposed amendment to the gross floor area (per unit) is proposed to amend more restrictive standards established through the previous OMB approval decision. Instead, the proposed floor areas are believed to be appropriate and result in a range of dwelling sizes necessary to accommodate multiple types of household sizes. The proposed reduction in parking is appropriate with the provision of bicycle parking and the proximity of the Subject Property to transit.

18In short, Mr. Wood testified that, in his professional opinion, the Proposed Development has regard for matters of provincial interest under the Act, is consistent with the PPS, conforms to the Growth Plan, conforms to the City’s OP, and results in only minor and appropriate modifications to the City’s ZBL. He concluded that the Proposed Development represents good planning, is in accordance with planning policies and represents an efficient, transit supportive development and appropriate intensification. Moreover, the Subject Property is situated within an existing urban residential area and there were no environmental or public health concerns identified.

Concerns Regarding Parking

19The City’s ZBL requires 1.5 parking spaces per unit in an apartment building for a total parking requirement of 477 parking spaces. Three hundred and twenty-eight (328) parking spaces are proposed for the site, at a rate of 1.03 space per unit. This is 149 fewer than required in the City’s ZBL.

20As described at paragraphs 8 and 9 of this Decision, some neighbouring residents had raised concerns regarding the perceived increased use of on-street parking along this portion of Grand River Avenue, and specifically with the tenure of parking spots and whether the cost of the parking was included in the rent or purchase price or paid for independently. It was requested that the ZBA application be conditional on the price for parking being removed from the current building. However, the Appellant/Applicant was unwilling to not charge future residents of the two new proposed buildings for parking and to remove paid parking from the existing rental building.

21Mr. Wood addressed this issue, testifying that the ZBA should not be refused based on the desire to impose this requirement on the Appellant/Applicant or based on the Appellant/Applicant’s refusal to comply with this condition, as this is not an appropriate planning basis on which to refuse a ZBA. The Proposed Development provides sufficient on-site parking which is the only dimension of parking that can be addressed through a zoning by-law.

22Good planning seeks ways in which to minimize reliance on the automobile, as enshrined in various levels of provincial policy, such as section 3.2.2.b of the Growth Plan. The City’s OP, in section 7.1.(s), mandates that, to reduce single occupant automobile trips, traffic congestion and parking supply needs, the City shall promote sustainable transportation choices and encourage various modes of travel, in multiple ways, including managing the provision of parking.

23Further, good planning also establishes that a cost on parking should be established whether within a mid-rise apartment or the provision of a new public parking lot. In addition, the cost of parking should not be subsidized or hidden within the costs of other items if reliance on the automobile is ever to be reduced. Instead, residents and users should be presented with the cost of parking to understand its provision and be afforded the opportunity to not pay for parking should it not be necessary. As is the case within the existing building, the provision of parking in the Proposed Development is established as an optional cost for residents and tenants who are able to “opt” out of parking should they wish to, which is in line with good planning policies.

24The ZBA implements a reduced parking rate which has been supported through the completion of a Transportation Impact Study, prepared by transportation engineers at Paradigm Transportation Solutions Limited, and which has been supported by City Staff. This rate is not being challenged in this hearing. This is all that a zoning by-law can do in respect to parking. Whether the cost of parking is included in the sale of a unit or compensated separately is not a matter which can be regulated through a zoning by-law.

25With respect to concerns about off site parking, Mr. Wood explained that municipal rights of way are regulated exclusively by the municipality. On street parking is a public resource that is regulated and allocated by the municipality, in this case the City’s By-law 144-88. By-law 144-88 has been recently amended to restrict on-street parking on Grand River Avenue between St. Paul Avenue and Leonard Street, the location that would be most directly impacted by the concerned residents, to dwellings with four units or less, upon the acquisition of a parking permit which is approximately $30 and lasts for the year. The permit system specifically resolves the concerns that the Proposed Development will exacerbate the on-street parking supply and addresses the premise of Council’s concern.

26Mr. Wood summarized that good planning involves efforts to reduce automobile dependence which can be achieved by reducing parking rates and by providing options to choose non-automobile forms of transportation which can be encouraged by “unbundling” the costs of parking from rent or sale of the unit and charge separately for a parking space. The cost of parking itself is not addressed in the zoning by-law nor should it be. The ZBA application should not be refused on this basis as zoning bylaws, and by extension zoning by-law amendments, seek to regulate how land is used but not regulate who uses that land. Further, it does not provide the ability to regulate how off-site uses are managed. In the Proposed Development, the parking provided on site is sufficient and will be made available to those who desire parking while meeting other automobile-dependence-reduction policy objectives.

FINDINGS AND DISPOSTION

27The Tribunal accepts the uncontradicted planning evidence and opinions of Mr. Wood and finds the Proposed Development of the Subject Property aligns with good land use planning, and satisfies all legislative tests as detailed above.

28The proposal is consistent with policy directives of the PPS and conforms to the policy intent of the Growth Plan, the City’s OP, and the City’s ZBL. The proposal has appropriate regard for matters of provincial interest and is in the public interest.

29In particular, the proposal supports provincial initiatives and policy directives aimed at encouraging a mix of housing options. Moreover, it represents an efficient, transit supportive development and appropriate residential intensification to minimize land consumption and servicing costs. The parking system proposed for the Proposed Development aligns with practices to minimize vehicle reliance.

30The Tribunal is satisfied that the proposed ZBA implements the development of the Subject Property in the manner proposed, and it warrants approval.

31The Parties advised that, on consent, neither would pursue costs in this matter.

ORDER

32THE TRIBUNAL ORDERS that the Zoning By-Law Amendment appeal is allowed and By-law 71-2022, being a by-law to amend City of Brantford Zoning By law 160-90 as amended, attached to this Order as Schedule A, is approved.

“Bita M. Rajaee”

bITA M. rajaee

member

“G.c.p. Bishop”

G.c.p. BISHOP

ALTERNATE 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.