Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 30, 2023 CASE NO(S).: OLT-22-003972

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

Applicant/Appellant: Sean Mason Homes (Essa Road) Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of an 8-storey mixed use condominium Reference Number: D30-011-2021 Property Address: 405 Essa Road Municipality/UT: Barrie/Simcoe OLT Case No: OLT-22-003972 OLT Lead Case No: OLT-22-003972 OLT Case Name: Sean Mason Homes (Essa Road) Inc. v. Barrie (City)

Heard: May 8, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative
Sean Mason Homes – Essa Road Inc	Aaron Platt Samantha Lampert
Davide McKenzie	Self-represented
Malcolm Hachburn	Self-represented
City of Barrie	Peter Krysiak

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST AND BITA M. RAJAEE ON MAY 8, 2023 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Sean Mason Homes (Essa Road) Inc. (“Appellant”) filed an appeal pursuant to s. 34(11) of the Planning Act (“Act”) against the City of Barrie (“City”) for failure to make a decision within the statutory timeframe for a Zoning By-law Amendment (“ZBA”) for the property known as 405 Essa Road (“Subject Property”) in Barrie.

2The Appellant’s proposed ZBA is needed to permit the proposed dwelling types of the application and other associated standards to implement the built form objectives of the contemplated development. The proposed ZBA would amend the City’s Zoning By-law 2009-141 (“ZBL”) to rezone lands from the Residential Multiple Family Second Density – Special Provision with a Holding Provision to the Mixed Use Corridor with Special Provisions.

3Two Case Management Conferences (“CMC”) previously took place on this matter. At the first CMC on September 14, 2022, David McKenzie was granted Party status. At the second CMC on October 27, 2022, Malcolm Hachborn was granted Party status. Also at the first CMC, the following were granted Participant status: Chris Clarridge, Mary Jane Clarridge, Qingzhi (Steven) Wang, and Ellen Ann LeMarquand.

4On May 5, 2023, the Tribunal was informed that a settlement had been reached and all Parties had withdrawn their issues as listed on the Issues List, and as such, no issues remained in dispute.

5On May 8, 2023, the Tribunal held a hearing to address the proposed settlement.

SUBJECT PROPERTY

6The Subject Property is designated as Residential within the City’s Official Plan (“OP”). The Subject Property is zoned RM2 (SP-562) (H-138) in the ZBL. The Subject Property is located adjacent to a level 2 classified Natural Heritage Resource (Ardagh Bluffs East).

7Essa Road is designated as a Secondary Intensification Corridor along this portion of Essa Road as per the Intensification Areas of the OP. Essa Road is well serviced by public transit and represents a major transportation artery in the City of Barrie.

8The surrounding land uses include three-storey townhouses to the north; a mixed-use development along with a large public park to the south; commercial, residential, and mixed-use development to the east; and residential, open space and environmental protection lands to the west.

9The Subject Property has a total site area of 0.27 hectares (“ha”), a total frontage of 45.43 metres (“m”) along 405 Essa Road and is currently vacant.

10The rear yard of the Subject Property faces Cityview Circle, recognized as a local road along with an open space area which contains a stormwater management pond. The Subject Property has an approximate frontage of 31.5 m on Cityview Circle and 12.5 m of frontage onto the stormwater management pond. A retaining wall is currently present along the Cityview Circle frontage.

ISSUES

11When adjudicating zoning by-law amendment appeals, the Tribunal must determine that the proposed amendments:

a. are consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”)).

b. conform with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019 (“GGH”)).

c. conform with applicable official plans, and

d. represent good planning.

12In making a determination, the Tribunal must have regard to the matters of Provincial interest set out in s. 2 of the Act and have regard to the information and materials that City Council received in relation to the matters under s. 2.1(2) of the Act.

EVIDENCE AND SUBMISSIONS

13The Tribunal marked the following Exhibits at the Hearing:

a. Exhibit 1 – Joint Document Book

b. Exhibit 2A – Witness Statement of Darren Vella

c. Exhibit 2B – Reply Witness Statement of Darren Vella

d. Exhibit 3 – Visual Exhibits

e. Exhibit 4 – Proposed Zoning By-law Amendment

f. Exhibit 5 - Witness Statement of Stephen Hunt

14The Tribunal heard from one witness, Darren Vella, Planning Consultant for the Appellant. Mr. Vella was affirmed and qualified by the Tribunal, without objection, to give expert opinion evidence in land use planning in this matter. The City and other Parties appeared in support of the proposed settlement but did not provide independent evidence at the hearing.

15Mr. Vella presented the Tribunal with a description of the revised development proposal that would allow for the development of five townhouse condominium units and 92 condominium units within the form of a mixed-used building incorporating four commercial units on the ground floor fronting Essa Road.

Planning Act

16Mr. Vella provided opinion evidence that the site is an appropriate location for intensification and the proposed development has regard for matters of provincial interest as set out in s. 2 of the Act.

The Provincial Policy Statement (2020)

17In Mr. Vella’s opinion, the proposal is consistent with the PPS as the proposed development is in a primary settlement area where there is a focus on growth and development. He stated that the proposed development is consistent with the PPS, and in particular with Sections 1.1.1, 1.1.2, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.3, 1.4.1, 1.4.3, 1.5.1, 1.6, 2.1, 2.2.1, 2.6, and 3.1.

18Specifically, Mr. Vella explained that the proposed development is consistent with the PPS based on, but not limited to the following themes:

a. A healthy, liveable, and safe community.

b. Intensification and redevelopment of an appropriate range and mix of land uses in designated growth areas utilising existing infrastructure and public service facilities.

c. Ensuring settlement areas are the focus of growth and development with a focus on efficient use of land and resources, existing infrastructure and public service facilities that are planned or available, minimizing environmental impacts, and being transit-supportive.

d. Promoting a healthy and active community by planning public streets, spaces, and facilities to be safe, meet the needs of pedestrians, foster social interaction, and facilitate active transportation and community connectivity.

e. Ensuring that infrastructure and public service facilities shall be provided in an efficient manner that prepares for the impacts of a changing climate while accommodating projected needs.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe

19Mr. Vella opined that the proposal conforms with the GGH. The City in its entirety is recognized as a Primary Settlement Area within the GGH and an important growth centre within the outer ring. The proposal represents a sustainable development pattern that supports the achievement of complete communities. The proposal supports active transportation by providing multi-modal connectivity through sidewalks and trails while providing a transit-oriented built form. Approval of the proposal will result in a compact, well-designed built form that provides for enhanced public open space features and makes efficient use of existing infrastructure.

City of Barrie Official Plan

20Mr. Vella stated that the Subject Property is designated “Residential” per the OP, Schedule A. In addition, it is located along an identified Intensification Corridor, on Schedule I, Intensification Areas, of the OP.

21Mr. Vella opined that the proposed development and associated application for rezoning conforms with the OP. His rationale included but was not limited to the following:

a. The revised proposal represents compact and efficient mixed use intensification which will diversify the area’s housing stock, add commercial amenities and lead to better utilization of existing municipal infrastructure, transit, parks, and schools.

b. The Subject Property is underutilized and in a prime location to accommodate forecasted growth where municipal services and facilities are available. The development proposal assists the City in meeting its intensification and density targets.

c. The proposal will assist the City in meeting the 40% intensification target by providing new residential units within the built-up area on an arterial road which is served by transit and has been prioritized for intensification.

d. The proposal provides a compact built form that has been designed to transition to and be compatible with neighbouring lands.

e. The building is intended to provide home ownership. The intent of the proposed development is to provide a target 10% of dwelling units as affordable units. The proposed density lends itself to facilitate affordable housing units. The development is in proximity to shopping, community facilities, and public transit routes, all of which further support both high density housing and specifically affordable housing units, ultimately increasing the overall affordable housing stock for the City.

City of Barrie Comprehensive Zoning By-law 2009-141

22The Subject Property is currently zoned Residential Multiple Family Second Density with Special Provision and Holding Provision (RM2, SP-562, H-139) per the ZBL.

23Mr. Vella advised that to accommodate the proposed development, a ZBA is required to rezone the Subject Property to Mixed Use Corridor with Special Provisions (MU2 (SP-__)).

24Mr. Vella opined that the rezoning of the lands to Mixed Use Corridor (MU2) would permit higher density mixed use development, with a broader array of residential dwelling types. He stated that higher density residential uses permitted in the MU2 zone represent compact and efficient development which would be supportive of the existing municipal services (i.e., transit) and commercial/institutional and amenity uses in the neighbourhood through an introduction of new residents and employees that will make use of existing services. Mixed use zoning better conforms to the City’s intensification policies, representing the future of new development along these corridors as envisioned by the City.

25Mr. Vella advised that the MU2 zoning and proposed development are comparable to recent developments under the MU2 zone on Essa Road and Yonge Street in the City.

Conclusionary Opinion

26Mr. Vella opined that the proposed development represents innovative planning and adheres to the principles of good planning by providing a variety of housing types in a compact and mixed-use package in an area of the City where intensification and redevelopment are encouraged and focused. Rezoning of the lands to a zone with special provisions which would permit such development helps the City maintain a healthy supply of land designated for residential uses without encumbrances.

27Mr. Vella advised that the density proposed is transit-supportive, and the commercial units will contribute to the area’s livability. A ground level outdoor amenity area is provided as well as additional outdoor amenity space on the terrace of the top floor and roof top. Indoor amenity areas are provided adjacent to the outdoor areas on the ground and top floor. The building has been designed with high quality architectural design elements and utilizes step backs to minimize the visual and shadowing impacts on adjacent properties.

28Mr. Vella opined that the proposed development is considered an infill and redevelopment project and it is intended to provide compact urban form and an increased built density. Currently, the site is zoned for 16 dwelling units, providing a density of 60 units per ha. The proposed development provides an increased density of 366 units per ha. The proposed density is provided in a compact built form of a building, rather than ground related three- to four-storey townhouses. This building typology has already been established along Essa Road and can been seen on several sites that have been built, are currently under construction, as well as currently approved. This project contributes to the goal of providing intensification.

29Mr. Vella stated that the proposed building has been sited to comply with the required setbacks from the Essa Road allowance after accounting for the future 2.6 m road widening. Commercial units are to front Essa Road, encouraging pedestrian patronage. One driveway access is proposed to the development from Essa Road to minimize points of conflict for ingress and egress.

30Mr. Vella stated that the proposed development aligns with both the Province and City’s policies, guidelines, and goals in place. The proposal will assist the City in achieving its targets for population growth, new housing units, jobs, and employment. Redevelopment is directed to a location where growth and development is anticipated and encouraged. The location and proposed built form represent functional and appropriate development, through an intensification redevelopment project on underutilized lands. The proposed development will serve to revitalize the area, supporting future economic growth and encouraging other development.

31Mr. Vella stated that, based on a review of the applicable planning policies, it was his opinion that the proposed ZBA is consistent with the PPS, conforms to the GGH and City OP, has sufficient regard for the Intensification Area Urban Design Guidelines, and represents good planning in the public interest.

32Lastly, Mr. Vella indicated that there were several Conditions to the ZBA, itemized in the Order below, that had been proposed as part of the settlement, and those were appropriate and represented good planning.

33The Parties were in agreement with the opinions and evidence provided by Mr. Vella. With respect to the concerns raised by the Participants, the City confirmed that the revisions to the proposal, made by virtue of the settlement, constituted the City’s best efforts to arrive at a compromise between the Appellant and the residents, and the revisions were made for the benefit of the residents and the added Parties to this Appeal.

FINDINGS

34Based on the uncontested opinion evidence of Mr. Vella, the Tribunal finds that the proposal has regard for matters of provincial interest as per s. 2 of the Act. The proposal before the Tribunal is consistent with the PPS, and conforms with the GGH and City OP.

35The Tribunal has given regard to the materials that City Council received in relation to the matter. The Tribunal finds that the proposed settlement is fair and reasonable and constitutes good land use planning.

ORDER

36THE TRIBUNAL ORDERS THAT the appeal is allowed on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 37 below and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order is hereby approved in principle

37The Tribunal will withhold issuance of its Final Order contingent on confirmation by the City Solicitor, in writing, of the following pre-requisite matters:

a. Receipt of a revised Zoning By-law Amendment, in a form and content satisfactory to the City’s Director of Development Services;

b. Confirmation that the revised plans have been updated with the following revisions:

i. A reduction in building height of one storey, to the equivalent of a maximum height of approximately 22.5 metres.

ii. Removal of the building massing for the two townhouse units adjacent to 21 Cityview Circle with the massing potentially to be replaced with a wall or other built form, provided that such wall or built form is no greater than 3.0 metres: and,

iii. Removal of access of any kind (pedestrian and/or vehicular access) to Cityview Circle, unless required pursuant to the Ontario Building Code.

c. Confirmation that the Appellant shall make reasonable efforts to retain the existing retaining wall along Cityview Circle adjacent to the Subject Property. However, if the structural integrity of such retaining wall is compromised, the Appellant shall be permitted to replace the retaining wall to re-establish the existing grade currently supported by the existing retaining wall.

38The Parties are requested to provide confirmation that the Tribunal can issue its final Order or to provide a status update in writing to the Case Coordinator by August 31, 2023.

39The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites, and the issuance of the Final Order.

40No costs are sought by the Parties and no costs shall be awarded in respect of this Order.

41The Panel may be spoken to should any issues arise with respect to the implementation of this Order.

42The Panel will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the issuance of the Final Order.

“W. Daniel Best”

W. DANIEL BEST

MEMBER

“Bita M. Rajaee”

BITA M. RAJAEE

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