Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 21, 2023
CASE NO(S).: OLT-22-004606
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
3223701 Canada Inc.
Subject:
Application to amend the Zoning By-law – Refusal of application
Description:
To permit the development of two four-storey apartment buildings with 258 residential units.
Reference Number:
D02-02-20-0094
Property Address:
100 Steacie Drive
Municipality/UT:
Ottawa/Ottawa
OLT Case No:
OLT-22-004606
OLT Lead Case No:
OLT-22-004606
OLT Case Name:
3223701 Ontario Inc. v. Ottawa (City)
Heard:
June 12, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
3223701 Canada Inc.
Ursula Melinz
(“Applicant)
Taylor Stanton
City of Ottawa
Tim Marc
MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS AND T.F. NG ON JUNE 12, 2023 AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal is an appeal by the Applicant of a refusal by the City of a Zoning By-law Amendment (“ZBA”) pursuant to section 34(11) of the Planning Act (“Act”). The Applicant is seeking to develop a property known municipally as 100 Steacie Drive (“Subject Property”) in the City by constructing two four-storey rental apartment buildings. Building A would have 145 units and 116 parking spaces; and Building B would have 113 units and 90 parking spaces (“Proposed Development”).
2The proposed ZBA seeks to rezone the subject property from Business Park Industrial Zone (IP), Subzone 6, Height 14 ([IP6][H(14)]) to Residential Fourth Density Zone, Subzone S Exception XXXX, Schedule XXX [(R4S-XXXX)(S-XXX)] and Parks and Open Space (O1) Zone. The proposed parent zone would be Residential Fourth Density Zone. As well, part of the property would be rezoned to O1, which would contain the stormwater management pond, Mississippi Valley Conservation Authority (“MVCA”) regulated area and the Hydro Corridor. This area will not be developed.
3City staff supported the application and recommended approval of the ZBA. But, on September 21, 2022, City Council denied the application resulting in the present appeal.
4Pursuant to a Case Management Conference (“CMC”) decision, issued on March 29, 2023, the Tribunal had originally set down the matter for a five-day hearing. However, the matter became uncontested by the City and was set down for a one-day hearing. Counsel for the Parties explained that the City’s Legal Services had reached out to six planning firms to retain opinion evidence in support of the position of City Council and that no firm accepted the retainer. As a result, on April 12, 2023, City Council passed a resolution instructing the City’s Legal Services not to oppose the application before the Tribunal.
SUBJECT LANDS AND SURROUNDINGS
5The Subject Property is an irregular shaped polygon, approximately 2.24 hectares in size and 125 metres frontage along Steacie Drive. It is designated as General Urban Area in the City of Ottawa Official Plan, 2003, Schedule B and is currently zoned IP6 H(14), Business Park and Industrial Zone, Subzone 6: Kanata North Business Park, with a permitted maximum height of 14 metres.
6The Subject Property is in the area generally known as Kanata North, at the southern edge of the Kanata North Business Park. It is immediately north of the Beaverbrook residential subdivision. It has a rolling topography and is currently vacant, with a combination of grass and dense tree cover. This rolling topography is concentrated around the north-west portion of the site, on the portion of the lands abutting the existing rail corridor and the Kizell watercourse.
7The western portion of the lands is subject to regulated flooding (Flood Plain Overlay) and erosion (meander belt) hazards. The Subject Property is located within the regulatory boundary limits of the MVCA. No development is proposed within either of these areas.
8Significant woodlots and significant valley lands are present on the Subject Property. Mitigation measures to preserve portions have been proposed for the development.
9The Subject Property is adjacent to an active rail corridor owned by the City and leased to Nylene Canada Inc. (“Nylene”) for their operations. The proposed development is within 300 meters of the corridor. Noise and vibration studies were presented to the Tribunal. Nylene had no concerns regarding the proposed rezoning.
10The Subject Property is surrounded by a broad range of uses including low-rise residential dwellings, institutional uses, employment lands and service based commercial uses. This includes the Kanata North Business Park located to the north of the site, the Beaverbrook and Kanata North residential neighborhoods to the south and east and service-based commercial uses to the west.
11Steacie Drive has a variety of commercial uses including daycares, education facilities and office space. Access to the commercial plaza at 329 March Road is also present, which has a variety of service commercial uses.
12The subject lands are located within proximity to several recreational trails, parks and open space, including Logan Lea Park and Kimmins Court Park.
13A range of transportation options are available in the area, including the existing pedestrian and cycling network, and the current OC Transpo bus routes that run along March Road and the Beaverbrook neighbourhood streets.
POSITION OF PARTICIPANTS
14At the CMC, the following persons were granted participant status: Robert Bishop, Susan Maslin, Kanata Beaverbrook Community Association, Catherine Roberts, Edwin Watts, Marianne Wilkinson, Gail Currie and Christopher Davis (jointly), and Andrew Carran.
15In their written Statements, the Participants opposed the Proposed Development and notably argued that it was not compatible to surrounding land uses, represented excessive intensification, would adversely impact the adjacent Beaverbrook Community, is not properly supported by public transit, has poor access to community amenities, will result in increased traffic and congestion, will create light pollution, and is too close to the rail corridor.
16These concerns were addressed by the evidence offered by the expert witnesses as described below.
EVIDENCE AND ANALYSIS
17The uncontested and extensive evidence in support of the ZBA was provided by three expert witnesses retained by the Applicant. Marc Rivet was qualified as an Expert in Land Use Planning; Austin Shih was qualified as an Expert in Transportation Planning and Engineering Matters; and Joshua Foster was qualified as an Expert in Environmental Noise and Vibration Engineering Matters. Their written evidence, in the form of witness statements, including various attachments, was marked as Exhibit 1A and 1B.
18Although this was an uncontested matter, the Tribunal must nevertheless be satisfied that the ZBA meets all legislative tests. In particular, the Tribunal must be satisfied that the proposal:
a. has regard to matters of provincial interest in s. 2 of the Act;
b. is consistent with the Provincial Policy Statement 2020 (“PPS 2020”);
c. conforms to the City’s Official Plan 2003 (“OP 2003”);
d. has regard to the City’s Official Plan 2022 (“OP 2022”); and,
e. has regard to various applicable Guidelines.
19The Tribunal notes that section 2 of the City’s By-law No. 2021-386 repealed OP 2003 on November 24, 2021. That section came into force upon ministerial approval of the new OP 2022 on November 4, 2022. The ZBA was deemed complete on December 22, 2020. Moreover, City Council’s denial of the ZBA on September 21, 2022, occurred before OP 2022 came into force. As a result, the Tribunal heard evidence which referred to both OP 2003 and OP 2022. However, pursuant to the Clergy Principle, the Tribunal finds that the test of conformity, set out in section 24 of the Act, should be in relation to OP 2003 while having regard to OP 2022.
20The following is an overview of the uncontested evidence of the three expert witnesses, which is accepted by the Tribunal.
Land use
21Mr. Rivet testified that, in his professional opinion, the proposed ZBA, to permit the Proposed Development of the Subject Property, represents an appropriate form of land use planning and was in the public interest and met all the legislative tests.
22Mr. Rivet testified that the Proposed Development had regard to matters of provincial interest in s. 2 of the Act, was consistent with PPS 2020, and conformed to OP 2003. He noted that Proposed Development promoted a low-rise infill intensification within a settlement area of an underutilized vacant parcel of land, using existing municipal infrastructure, thereby contributing to the supply of residential housing. He noted that the Proposed Development has appropriate and ample access to community amenities. He opined that the Subject Property is located in the land use designation of “General Urban Area”. This designation supports the development of communities comprised of a mix of uses and a full range of densities including low-rise residential uses of up to four (4) storeys. He also testified that the Proposed Development provides an appropriate transition between the stable, low-rise residential area of the Beaverbrook community and the mixed-use nature of the March Road corridor and Kanata industrial/business park area. Furthermore, he testified that the Proposed Development conforms to the policies found in OP 2003 relating to Natural Heritage System Features and Natural Hazards as no development is proposed within the environmentally sensitive areas. The supporting Environmental Impact Statement provides mitigation measures for theses areas and the ZBA proposes to rezone these areas to prevent future development.
23In Mr. Rivet’s professional opinion, the proposed ZBA also conforms to OP 2022 and the relevant policies described including those of the Suburban Transect West, Evolving Overlay and Kanata North Economic District. The policies for the Suburban transect support a variety of uses, including low-rise residential uses. The site is also found within evolving overlay, which describes the lands as having the potential for gradual evolution and change over the lifetime of OP 2022. He opined that the ZBA sought is supported by the special district policies that apply to the Kanata North Economic District. The OP 2022 outlines policies to gradually change the industrial park into a mixed-use area that increases in residential density and supports a variety of uses, which the Proposed Development conforms to by proposing new residential uses.
Compatibility
24Mr. Rivet testified that the Proposed Development is generally surrounded by compatible uses, namely residential, commercial, office and industrial uses. However, he noted that the proposed residential apartment building is classified as a sensitive land use under OP 2003 and the Ministry of Environment, Conservation and Parks D6 Guidelines (“MOE D6 Guidelines”). The MOE D6 Guidelines are intended to prevent or minimize future land use compatibility problems between industrial uses and sensitive land use, such as residential development. The Subject Property is located close to three industrial uses that could have potential impact on the proposed residential development. For two of those industrial uses, a preliminary MOE-D6 analysis concluded that the proposed residential use falls outside the 20-metre minimum separation distance to Coady Construction Ltd. (“Coady”) (a Class I industrial use) and the 300-metre minimum separation distance to Nordion Inc. (a Class II industrial use).
Noise and Vibration
25The third industrial use is the railway corridor. Mr. Rivet explained that pursuant to section 4.8.6 of OP 2003, noise and vibration studies were required due to the Proposed Development’s proximity to an active rail corridor. He further explained that the main objective of the Guidelines for New Development in Proximity to Rail Operations (“Rail Guidelines”) is to mitigate railway-oriented impacts such as noise, vibration, and safety hazards, to ensure that the quality of life of a building’s occupants and users are not negatively affected and to the maintain the long-term integrity and viability of the rail corridor. The Rail Guidelines are intended to protect, buffer, or mitigate sensitive land uses, primally new residential development, from the potential negative impacts from railway corridors.
26Mr. Foster testified that a Noise and Vibration Study (“N and V Study”) was conducted in accordance with OP 2003, the City’s Environmental Noise Control Guidelines, and Provincial Environmental Noise Guidelines (NPC-300) to the satisfaction of City staff. He noted that the requirements were no different under OP 2022. The N and V Study considered the noise and vibration impact of the rail corridor and the stationary noise from the Coady facility located on the other side of the rail corridor. He explained the N and V Study proposed noise control mitigation measures including upgraded building components (i.e., windows and central air). These mitigation measures would be implemented through the site plan approval process. He also noted that warning clause would be added to the lease agreement disclosing potential noise from the railway activity and other surrounding stationary noise. He explained that no mitigation measures were required for vibrations. In his professional opinion, the N and V Study in support of the ZBA, including the mitigation measures, were appropriate.
Transportation
27Mr. Shih testified that a Transportation Impact Assessment (“TIA”) was completed in support of the ZBA as required by the City and based on the City’s Transportation Impact Assessment Guidelines 2017 (“TIA Guidelines”). The TIA was approved by City Staff. Mr. Shih also testified that after the approval the City released two new documents, namely the 2020 TRANS Trip Generation Manual Background Report and TRANS Trip Generation Manual Summary Report. These new reports lowered trip generation forecasts for all residential land-use types therefore making the approved TIA conclusions overly conservative compared to the now applicable methodology. The TIA forecasted approximately 215 peak hour person trips, which includes 75 vehicle trips, to be generated by the Proposed Development. When re-analyzed using the updated methodology, the estimated peak hour person trip generated was reduced to 105, which comprised 56 new vehicle trips.
28Mr. Shih also testified that the existing zoning of the Subject Property includes office use, and that an office development on the Subject Property would generate nearly three times the number of new vehicle trips generated by the Proposed Development. He explained that under the City’s TIA Guidelines, the residential development proposal does not trigger the need for a reassessment of the City’s Transportation Master Plan (“TMP”) road and transit network concepts, as it is forecasted to generate fewer trips than what is permitted by the existing zoning.
29Mr. Shih also opined that the Proposed Development is currently supported by a range of transportation options including existing pedestrian and cycling network and the existing OC Transpo bus routes that run along March Road and the Beaverbrook neighbourhood streets. He added that the Subject Property has strong regional pedestrian and cycling connections as demonstrated the City’s TMP. Mr. Shih also testified that transportation is likely to improve in the future as it is located within a 400 metres radius of a planned Bus Rapid Transit Station, which is part of the approved Kanata North Transitway.
30Overall, Mr. Shih’s professional opinion was that the ZBA should be approved from a transportation perspective.
CONCLUSION
31In summary, based on the foregoing uncontested evidence which the Tribunal accepts, the Tribunal finds that the ZBA meets all the legislative tests, namely that it (i) has regard to matters of provincial interest in s. 2 of the Act; (ii) is consistent with the PPS 2020; (iii) conforms to the OP 2003 pursuant to s. 24 of the Act; and (iv) has regard to OP 2022, as well as the relevant Guidelines, including Environmental Noise Control Guidelines, the Rail Guidelines and the TIA Guidelines. Furthermore, considering City’s resolution not to contest the appeal, the Tribunal makes its findings while exercising regard for the decision of the City pursuant to s. 2.1(1)(a) of the Act. The Tribunal further finds that the ZBA is in the public interest and constitutes good planning
ORDER
32THE TRIBUNAL ORDERS that the appeal is allowed and By-law No. 2008-250 of the City of Ottawa is hereby amended as set out in Attachment A to this Order. The Tribunal authorizes the municipal clerk of the City of Ottawa to assign a number to this By-law for record keeping purposes.
“Jean-Pierre Blais”
JEAN-PIERRE BLAIS
MEMBER
“T.F. Ng”
T.F. NG
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
- The Zoning Map of By-law No. 2008-250, entitled the “City of Ottawa Zoning By-law” is amended by rezoning the lands shown on Attachment 1 as follows:
a) Area A from IP6 H(14) to R4Y[2809] S463-h;
b) Area B from IP6 H(14) to O1; and,
c) Area C from IP6 H(14) to O1R.
- Section 239 – Urban Exceptions of the said By-law No. 2008-250 is amended by adding the following exception:
I
Exception Number
II
Applicable Zone
Exception Provisions
III
Additional Land Uses Permitted
IV
Land Uses Prohibited
V
Provisions
2809
R4Y[2809] S463-h
-all uses except existing uses until such time as the holding symbol is removed
(i) Minimum setbacks as per S463
(ii)The minimum parking space rate for a dwelling unit in a low-rise apartment building is 0.8 parking spaces per dwelling unit.
(iii)The holding symbol may only be removed until such time as a Site Plan Control application addressing the following is approved to the satisfaction of the General Manager of Planning, Real Estate and Economic Development Department:
(a) The proposed residential development must not exceed a fire flow of 10,000 L/min to ensure the available watermain system can provide adequate fire protection.
(b) The owner shall prepare updated fire flow calculations demonstrating how the above-noted criterion is met and perform a hydraulic network analysis of the proposed watermain system to ensure the demand objectives are met throughout the system as per the City of Ottawa Water Distribution Guidelines. The updated fire flow calculations and hydraulic analysis shall be submitted for review and approval at the time of the Site Plan Control application.
(c) Any proposed measures to meet the fire flow criterion, including but not limited to active fire protection measures such as sprinkler systems, fire walls, and/or minimum building separations shall be designed to the satisfaction of the General Manager of Planning, Real Estate and Economic Development Department.
- Part 17 – Schedules of the said By-law No. 2008-250 is amended by adding Schedule 463 as shown on Attachment 2 to this by-law.
Attachment 1
Attachment 2