Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 10, 2023 CASE NO(S).: OLT-22-002366 (Formerly PL210286)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Losani Homes (1998) Ltd. Subject: Request to amend the Official Plan – Failure of the Town of Grimsby to adopt the requested amendment Existing Designation: Neighbourhood Commercial Area Proposed Designated: Neighbourhood Commercial Area, site specific Purpose: To permit a seven storey mixed-use building Property Address/Description: 141-149 Main St. E. Municipality: Town of Grimsby Approval Authority File No.: OPA-26OP-16-2002 OLT Case No.: OLT-22-002366 Legacy Case No.: PL210286 OLT Lead Case No.: OLT-22-002366 Legacy Lead Case No.: PL210286 OLT Case Name: Losani Homes (1998) Ltd. v. Grimsby (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Losani Homes (1998) Ltd. Subject: Application to amend Zoning By-law No. 14-45 – Refusal or neglect of the Town of Grimsby to make a decision Existing Zoning: Neighbourhood Commercial (NC), site specific exceptions 19 and 126 Proposed Zoning: Neighbourhood Commercial (NC), site specific exceptions (to be determined) Purpose: To permit a seven storey mixed-use building Property Address/Description: 141-149 Main St. E. Municipality: Town of Grimsby Municipality File No.: 26Z-16-2004 OLT Case No.: OLT-22-002367 Legacy Case No.: PL210287 OLT Lead Case No.: OLT-22-002366 Legacy Lead Case No.: PL210286

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended Appellant: Losani Homes (1998) Ltd. Subject: Appeal of the Decision of Council on an application to demolish or remove a building or structure Property Address/Description: 141 Main St E Municipality: Town of Grimsby OLT Case No.: OLT-22-002368 Legacy Case No.: PL210247 OLT Lead Case No.: OLT-22-002366 Legacy Lead Case No.: PL210286

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended Appellant: Losani Homes (1998) Ltd. Subject: Appeal of the Decision of Council on an application to demolish or remove a building or structure Property Address/Description: 147 Main St E Municipality: Town of Grimsby OLT Case No.: OLT-22-002369 Legacy Case No.: PL210248 OLT Lead Case No.: OLT-22-002366 Legacy Lead Case No.: PL210286

Heard: June 28, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Losani Homes (1998) Ltd. (“Applicant”/“Appellant”)	R. Kehar
Town of Grimsby (“Town”/“Grimsby”)	T. Halinski

DECISION DELIVERED BY S. TOUSAW AND INTERIM ORDER OF TRIBUNAL

Introduction

1A Case Management Conference (“CMC”) was convened, at the request of the Parties, to address their disagreement on whether the Appellant’s final proposed plan (“revised plan”) sufficiently fulfills the Tribunal’s directions in its Interim Decision issued on September 8, 2022, following the hearing on the merits (the “Decision”).

2The Parties made oral submissions with a primary focus on the Decision in relation to the revised plan (now marked as Exhibit 1 for this CMC), along with referencing certain heritage evidence in the Exhibits (“Ex.”) from the hearing on the merits, and noting a recent Decision of the Tribunal pertaining to the abutting lot to the west of this site (Burgess Heritage Group Inc. v. Grimsby (Town), 2023 CarswellOnt 7551 (“133 Decision”).

3On the thorough and clear submissions of both counsel, the Tribunal is prepared to make a finding on the question in dispute, based on the above-noted inputs. Given the absence of a full hearing with evidence on this question, the Tribunal has neither read nor considered the planner’s affidavit filed recently by the Appellant related to this question. Both Parties agree that if the Tribunal is prepared to render a finding based on their submissions, then no full hearing on the merits of this question is required.

4The Tribunal characterizes the question before it as:

Does the revised plan address the directions of the Tribunal’s Decision appropriately and sufficiently?

5For the reasons that follow, the Tribunal finds in the affirmative, being that the Appellant’s revised plan is appropriate and sufficiently addresses the Tribunal’s findings and directions in its 2022 Interim Decision. As such, the Tribunal finds the revised plan to satisfy all of the legislative requirements set out in that Decision.

Submissions

6At issue is that the Appellant’s plan shows the relocation of both heritage houses (known as “141” and “147”) closer to Main Street East (“Main”) than their originally-built location, which enables a nearly unchanged design of the mixed-use building as originally proposed (“new building”). 141 and 147 would be centrally located on the site, close to Main and in what may be considered the green, front “courtyard” created by the elongated “H”-shaped, 6-storey mixed-use building. From their present/original locations, 141 would be moved southeast and 147 would be moved directly south, closer to Main, and generally in line with the setbacks of the new building’s east and west wings, such that the new building will encase the heritage houses on three sides, as shown on the following concept image from Exhibit 1.

Appellant

7The Appellant submits as follows, with emphasis added, where made.

8The Tribunal is asked to find that the redesign plan satisfies the directions given in the original Decision, such that final plans and conditions can be finalized. The Town passed by-laws to designate 141 and 147 under the Ontario Heritage Act, as recommended by the Decision, and the Parties have engaged in lengthy exchanges in an effort to finalize the plans and related documents.

9The revised plan implements the Tribunal’s directions “within the four corners” of the Decision. Regardless of their ultimate location, both heritage houses will be relocated temporarily to enable construction of the below-grade parking garage. Their intended location close to Main and their use for commercial purposes addresses the tension within the Town’s Official Plan (“TOP”), noted in the Decision, directing larger setbacks along Main yet closer to the street for commercial uses. The recent 133 Decision enables an infill, mid-rise building extending out to Main immediately west of this site, which would substantially hide 141 when viewed from the southwest if left in its original location.

10Entitled “Guidance for Next Steps,” para. 85 of the Decision directs revisions to the documents that “generally satisfy the following …” Each of the seven directions has been addressed, including: permit medium-scale development; maintain deeper setbacks for the new building between 141 and 147; the new building may be close to or connect with the rear walls of the heritage houses; include similar setbacks and stepbacks for the building’s wings; commercial/office space should dominate the ground floor; and “other alterations and minor deviations …” The Decision has no express requirement that the heritage houses remain in their current location, nor does it direct a reduction in height or massing of the proposed mixed-use building. The location and commercial/office use of 141 and 147 will ensure their visibility and viability over the long-term.

11To para. 67 of the Decision, where “any re-positioning of either 141 or 147 on the site is unlikely to be needed in a redesign” does not mean ‘it shall not occur.’ The revised plan enables intensification while preserving both of these heritage houses as directed.

12To the Town’s responses, the Appellant asserts that substantial changes to the plans resulted from the Decision, including the complete retention and restoration of 141 and 147, and completions to the new building’s central street-facing wall where the façade of 147 had been proposed previously. The retention and visibility of the heritage fruit farm houses keep the heritage story alive, whereas in other places along Main, heritage houses have been lost. And finally, a variety of setbacks exist for identified heritage buildings along Main (Ex. 5, p. 6).

Town

13The Town submits as follows, with emphasis added, where made.

14The Tribunal is asked to find that the plans require further redesign to accommodate the heritage houses with their existing setbacks from Main, and similarly, that they not be moved east-west without justification.

15The temporary relocation of heritage structures during redevelopment is commonly required and completed successfully. That reason does not support a permanent relocation.

16Dr. Rady had noted in the original hearing that existing setbacks along Main should be preserved as a key component of cultural heritage. Many of the heritage buildings along Main retain their original deep setbacks, as aligned with the TOP’s guidance to require larger setbacks to maintain the existing streetscape character (Ex. 4, Tab 2, para. 23g and 26h). Heritage guidelines direct respect for the original building locations and “do not move buildings unless there is no other way to save them” (para. 63). In Dr. Rady’s opinion, these two heritage buildings “could instead be thoughtfully incorporated into a redesigned building …” (para. 65b).

17The Tribunal’s Decision found a middle ground, balancing increased density with heritage preservation, all to be accommodated in a redesign, as noted by the following excerpts. “Changes to the site and building design will be necessary based on the Tribunal’s findings on heritage” (para. 42). “The heritage outcome will fundamentally influence the form and scale of new development” (para. 53). “… the number rhythm and repetition of these dwellings carry strong potential as a collective heritage attribute” and “the positioning of 141 and 147, in step with 133, effectively reflect this area’s history worthy of protection” (para. 64).

18To emphasize the foregoing directions, para. 67 reads (emphasis added):

The Tribunal finds that any re-positioning of either 141 or 147 on the site is unlikely to be needed in a redesign, given 141’s close proximity to the west lot line and the opportunity for new development on both sides of 147. Their preservation in place will maintain setbacks from Main and influence a final plan based on good urban design for intensification. This Interim Decision will not permit demolition and will direct the Parties to draft final OHA [Ontario Heritage Act] permits and conditions for such matters as removal of non-heritage additions, appropriate restoration of heritage attributes, and any related commemoration.

19The Decision did not direct the simple movement of the houses but instead directed that a redesign process occur for “necessary modifications” (para. 70 and 77). The Appellant has not provided reasoning or evidence that a redesign is not possible without moving 141 and 147 closer to Main.

Findings

20The Tribunal finds that the revised plan adequately addresses the directions given in its Interim Decision (including the para. numbers cited).

21In overview, the Tribunal finds that the revised plan:

• continues to maintain the “middle ground” to “conserve heritage while intensifying development” (para. 6);
• satisfies the definition of “conserved” by “retaining the CHVI [cultural heritage value or interest] of built heritage resources” (para. 44);
• “retain[s] these dwellings as representative contributors to the heritage of and along Main, including early farm dwellings and their associated tender fruit farms that occupied relatively narrow, small, farm lots along Main” (para. 54);
• addresses Dr. Rady’s opinion that “such dwellings should be retained as ‘visual touchstones of Grimsby’s past’ which enable one to ‘read the historic streetscape’ for past fruit farming and present contrast with the Town’s gradual development” (para. 61);
• satisfies the finding that “incorporating both of these dwellings within a redevelopment plan would achieve warranted heritage conservation while the policy objectives for commerce and housing are also addressed” (para. 62);
• implements the focus to “not permit demolition” (para. 67);
• constitutes “necessary modifications arising from the heritage findings” (para. 70);
• aligns with the finding “that a well-designed single building is capable of demonstrating suitable conformity with policies regarding heritage, commercial use, and small town character” (para. 77); and
• demonstrates that “the retention of such houses along Main not only conserves heritage but also helps retain the small town character of Grimsby” (para. 86).

22To the Town’s issues, the Tribunal finds in overview that the Interim Decision was just that: interim. It set the basis upon which a Final Decision may be considered and left open some room for the Parties to finalize the plan and related documents. Such was the intent of the terms “Guidance for Next Steps,” “generally satisfy the following,” and “other alterations and minor deviations … in keeping with this Decision” (para. 85).

23Moreover, the Decision was based on the original plan advanced at the time of the hearing, whereas now, a Final Decision will necessitate consideration of new information related to the revised plan, as was directed in the Decision. Two relevant matters are now before the Tribunal: the revised plan (obviously); and the Tribunal Decision on 133.

24Without a revised plan before it at the hearing on the merits, the Tribunal anticipated that “the heritage outcome will fundamentally influence the form and scale of new development” (para. 53) and “any re-positioning of either 141 or 147 on the site is unlikely to be needed in a redesign” (para. 67). While the revised plan is not fundamentally different from the original plan for the new building, yet does result in re-positioning, the Tribunal finds that it creatively addresses the directions of the Tribunal to conserve heritage while enabling suitable intensification. The resulting development is found to be well planned, inviting, and sufficiently conserves, displays and utilizes the heritage aspects of 141 and 147.

25As the Town submitted, para. 64 speaks to the “number, rhythm and repetition of these dwellings” and “the positioning of 141 and 147, in step with 133, effectively reflect this area’s history worthy of protection.” With an inverted “L” shaped building approved immediately west of this site, 133 and 141 will be separated by a building extension out to Main, whether or not this site displays a similar extension of the west side of the “H” along Main. Two results arise that warrant the forward relocation of 141: its visibility will be enhanced if it is repositioned closer to Main; and its closer positioning to Main than 133 will not be blatant given the acceptable intervening wings of two new buildings. The same applies to 147. Again, the Tribunal finds that the resulting built-scape will reflect, conserve and display the area’s heritage attributes, consistent with the somewhat variable setbacks of heritage buildings along Main.

26The Tribunal finds that the revised plan: includes appropriate “changes to the site and building design” (para. 42); represents “necessary modifications arising from the heritage findings” (para. 70); and sufficiently addresses all the guidelines as directed (para. 85).

27Heritage preservation can take many forms, and as noted in the prior Decision, the retention of 141 and 147 assist in preserving the cadence of heritage fruit farm houses along Main. With their relatively minor relocation on the site in this development, the connection to the past by their presence is not lost. Indeed, the revised plan increases the prominence of 141 and 147 by effectively showcasing this history against a backdrop of the new building, similar to 133.

Interim Order

28The Tribunal Orders the Parties to proceed to fulfill the Interim Order of September 8, 2022, utilizing the revised plan.

“S. Tousaw”

S. TOUSAW VICE 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.