MacPherson Realty (Peterborough) Ltd. et al v. Peterborough (City), 2023 CanLII 61491

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 04, 2023

CASE NO(S).: OLT-22-002404

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

Applicant and Appellant: MacPherson Realty (Peterborough) Ltd./Monkman Realty Ltd./1853913 Ontario Ltd.

Subject: Application to amend Zoning By-law No. 97-123 - Refusal or neglect of the City of Peterborough to make a decision

Existing Zoning: C.6 and M3.2

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit mixed-use development on the subject lands with 126 residential units

Property Address/Description: 375 Aylmer Street North, 243 & 247 Hunter Street West

Municipality: City of Peterborough

Municipality File No.: Z2007

OLT Case No.: OLT-22-002404

OLT Lead Case No.: OLT-22-002404

OLT Case Name: MacPherson Realty (Peterborough) Ltd. et al v. Peterborough (City)

Heard: June 21, 2023, by Video Hearing

APPEARANCES:

Parties	Counsel
MacPherson Realty (Peterborough Ltd)/Monkman Realty Ltd/1853913 Ontario Ltd	J. Ewart
City of Peterborough	S. Seabrooke A. Barber (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This appeal was brought pursuant to s.34(11) of the Planning Act (the “Act”) by MacPherson Realty (Peterborough Ltd)/Monkman Realty Ltd/1853913 Ontario Ltd. (collectively, the “Appellant”) concerning the non-decision of the City of Peterborough (“City”) on the Appellant’s application for a site specific zoning by-law amendment (“ZBLA”) to facilitate re-development for the properties known municipally as 375 Aylmer St N, 243 and 247 Hunter St W (collectively the “Subject Lands”).

2Prior to the commencement of the two-day hearing on the merits of the ZBLA, the Parties reached a settlement. As such, the proceeding was converted to a settlement hearing at the request of the Parties.

3The Applicant’s planner, Kent Randall, testified in support of the settlement. The Tribunal qualified him to provide expert opinion evidence in land use planning matters. The Tribunal, having considered the uncontroverted oral testimony of Mr. Randall and having reviewed his affidavit, allowed the appeal.

SITE CONTEXT

4The Subject Lands consist of three properties located continuously within a block in the downtown area of the City. The site was the former location of a manufacturing plant and most of the plant buildings have been demolished. The Subject Lands have frontage on three City streets: Hunter, Bethune and Alymer. It is surrounded by different uses including commercial, residential, institutional, open space and a nearby bus terminal. In total, the lands are approximately 0.793 hectares (1.95 acres).

5The site is presently zoned M3.2 - Enhanced Service Industrial District with a small portion zoned C.6,5d – Commercial District. commercial. The planned development of the Subject Lands was for a high-density mixed use consisting of three buildings to be built in three phases. However, the industrial zoning does not permit the redevelopment envisioned by the Appellant which necessitated the requirement for a ZBLA.

6The Application was deemed complete in May 2022. In Mr. Randall’s view, the City’s concerns were minor and the majority of which could be addressed through Site Plan Control.

ISSUE

7The Subject Lands are partially located within the Jackson Creek Floodplain, which is considered a natural hazard. The Otonabee Region Conservation Authority (“ORCA”) is responsible for issuing development permits for works within natural hazards. When the Application was before the City, ORCA was working on updated floodplain modelling that would determine the extent to which the Jackson Creek Floodplain might be extended and how the floodplain had changed. ORCA could not sign off on the Application as the modelling was not yet complete.

8It was this fact that resulted in the City failing to move the Application forward for a public meeting and a City Council decision. Although ORCA was not a Party nor Participant to this Appeal, both Parties understood that the City was relying upon ORCA’s position, and that its input was essential to reaching a settlement.

ASSESSMENT OF JACKSON CREEK FLOODPLAIN

9ORCA provided the Applicant with the updated floodplain mapping/modelling and requested that the Applicant provide a Floodplain Assessment Memo (“FAM”) from a qualified engineer that demonstrated that safe access could be provided to the site and that the development could be sufficiently floodproofed. Safe Access includes ensuring that the entryways are at certain elevation to ensure that they are above the floodplain. The FAM was provided by the Applicant to ORCA.

10Attached to Mr. Randall’s Affidavit, filed in support of the settlement, is a memo from ORCA dated December 5, 2022. The Memo indicates that ORCA is now satisfied that the site can be “safely developed, will have safe access and will not adversely affect flooding characteristics on surrounding properties.”

LEGISLATIVE FRAMEWORK

11In reaching a decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act (“Act”), as well as the position taken by the municipality and the information considered by it, pursuant to s. 2.1(1) of the Act. The Tribunal’s decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”), conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), and conform with the applicable City of Peterborough Official Plan, 2003 (“OP”).

Provincial Policy Statement, 2020

12Mr. Randall opined that the Settlement Proposal was consistent with the Provincial Policy Statement, 2020 (“PPS”). The Planner explained that the Application is a redevelopment of a former industrial site located within the City’s core. He noted that redevelopment is encouraged in the PPS and that the Application was an efficient form of development that utilized existing municipal services and was in close proximity to transit and amenities in the City’s downtown area. Mr. Randall also noted that the development would provide additional housing for the City as set out in Section 1.4 of the PPS, and that apartment dwelling units were an underserved housing type within the City.

13Mr. Randall noted that the OP identified the Jackson Creek floodplain within the downtown area as a ‘Special Policy Area’, where development is permitted subject to floodproofing measures in keeping with Section 3.1.4(a) of the PPS. The Planner stated that that development is permitted in such areas subject to the policies in the PPC and opined that the proposed development was consistent with the PPS.

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

14Mr. Randall outlined several sections of the Growth Plan that were applicable to the proposed development. He made particular reference to Sections 2.2.2 and 2.2.6 which support a diverse range and mix of housing and emphasize active transportation and the achievement of complete communities. Reference was made to the fact that the proposed development is located within a Major Transit Station Area (Section 2.2.4.9) due to the Subject Property’s proximity to the bus terminal and GO Transit bus stop.

15The Planner noted that this was an underutilized site and that its redevelopment would contribute to the City meeting housing and density targets and conforming to the policies set out in the Growth Plan.

City of Peterborough Official Plan, 2003

16The Planner stated that the Application is subject to, and conforms with, the OP from 2003. Mr. Randall also opined that the proposed development would still be good planning even if the new City of Peterborough Official Plan, which came into effect in April 2023, applied to the Application.

17Mr. Randall noted that the Subject Lands are designated Central Area Commercial on Schedule ‘I’ to the OP. Section 4.3 of the OP states that the Central Area is intended to be a “multifaceted activity centre” that includes commercial and residential uses. The Planner explained that within the City’s commercial core, where development is intended to be pedestrian orientated, retail uses are generally on the ground floor and residential uses above.

18The ZBLA would permit ground floor residential units along Bethune Street. Mr. Randall opined that this would not detract from commercial uses in the area. The Planner noted that Bethune Street had recently been reconstructed due to a stormwater diversion project and was now non-vehicular. As such, the residential component on that side of the proposed development made sense and aligned with the policies of the commercial core area.

City of Peterborough Zoning By-law 1997 – 123

19It is proposed by the Parties that the Subject Lands be rezoned to C.6-360 F - Commercial District, to permit the proposed development. Mr. Randall opined that the proposed development would comply with all other aspects of the City’s Zoning By-law.

Draft Zoning By-law Instrument

20Mr. Randall explained that the draft Zoning By-law instrument had been prepared in consultation with City staff. As proposed, the site would be a C.6 zone with site specific lot regulations with respect to the maximum building floor area ratio and removal of loading space requirement. At the request of the Applicant, a ‘food store’ was specifically listed as a permitted use in the draft instrument for clarity’s sake, although the City considered that this use was covered by Section 18.1. The draft instrument also states which uses are not permitted, given the fact that the Subject Lands are located within a floodplain.

Conclusion

21Mr. Randall’s opinion was that the development represented good planning and was in the public interest. The ZBLA is consistent with the PPS and conforms to the Growth Plan and OP and provided for an appropriate development of the Subject Lands.

FINDINGS

22The Tribunal finds that the settlement proposal has sufficient regards for matters of provincial interest in accordance with s. 2, especially such matters that encourage intensification within transit supported areas. Given that the City endorses the settlement and ORCA’s position on redevelopment of the Subject lands, the Tribunal also finds that the revised proposed had appropriate regards to the decision of council pursuant to s. 2.1(1).

23The Tribunal finds that the proposed ZBLA is consistent with the PPS and conforms with the Growth Plan, OP. The ZBLA is appropriate to implement Municipal and Provincial policy directions, is representative of good planning and is in the public interest.

ORDER

24THE TRIBUNAL ORDERS that the appeal is allowed and the Zoning By-law Amendment, attached hereto as Attachment 1, and forming part of this Order, is allowed and Zoning By-law 1997 – 123 of the City of Peterborough is to be amended.

“G.A. Croser”

G.A. CROSER

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

The Corporation of the City of Peterborough

By-Law Number (Clerk’s office will complete)

Being a By-law to amend the Zoning By-law for the properties at 375 Aylmer Street North and 243 and 247 Hunter Street West

Whereas authority is given to the Ontario Land Tribunal by Section 34 of the Planning Act, R.S.O. 1990, c.P.13, as amended, to pass this By-law;

And Whereas the Ontario Land Tribunal, pursuant to its Order dated June 21, 2023 has determined to amend City of Peterborough Zoning By-law 1997-123;

Now Therefore, the Ontario Land Tribunal orders City of Peterborough Zoning By-law 1997-123 is further amended as follows:

1. That Section 3.9 – Exceptions, be amended to add the following:

“.360 Notwithstanding the provisions of Section 18, the following shall apply:

A “food store” is included as a permitted use in Section 18.1.

The following uses shall not be permitted: a school

a church

a police station, jail or fire hall

a nursing home

a day nursery

a home for the aged

a dry cleaning establishment – Class 2

a hospital

Maximum building floor area ratio for a building containing 21 dwelling units or more: 3.03

Dwelling units may be located on the first storey or at-grade if adjacent to the Bethune Street road allowance.

Notwithstanding Section 4.6, the minimum number of loading spaces shall be 0.

Notwithstanding Section 6.8(3.2)(a), no building or part thereof shall be erected, altered or used within 13.8 metres of the centre line of Bethune Street.”

2. That Map 12d forming part of Schedule “A” to By-law 97-123 is amended by changing the area shown on the sketch attached hereto as Schedule “A” from M3.2 – Enhanced Service Industrial District, C.6 – Commercial District, and C.6,5d – Commercial District to C.6-360 F – Commercial District.

Pursuant to the Order of the Ontario Land Tribunal dated June 21, 2023 (Case No. OLT-22-002404), attached as Schedule ‘B’ to this By-law.