Hanlon Glen Homes Inc. v. Mississauga (City), 2023 CanLII 66831

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 21, 2023

CASE NO(S).: OLT-22-002270 (Formerly PL210125)

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

Applicant and Appellant: Hanlon Glen Homes Inc.

Subject: Application to amend Zoning By-law No. 0225-2007 – Neglect of the City of Mississauga to make a decision

Existing Zoning: D-8 (Development – Exception) and G1-7 Greenlands – Exception)

Proposed Zoning: R2-Exception (Detached Dwellings-Typical Lots), R11-Exception (Detached Dwellings-Garage Control Lots – Exception), RM2 -Exception (Semi-Detached), OS1 (Open Space-Community Park) and OS1-Exception (Open Space-Community Park-Exception)

Purpose: To permit 260 detached and 62 semi-detached dwellings, a public park, a stormwater management pond and to retain the existing heritage house

Property Address/Description: 1200 Old Derry Road

Municipality: City of Mississauga

Municipality File No.: OZ 19/20

OLT Case No.: OLT-22-002270

Legacy Case No.: PL210125

OLT Lead Case No.: OLT-22-002270

Legacy Lead Case No.: PL210125

OLT Case Name: Hanlon Glen Homes Inc. v. Mississauga (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Hanlon Glen Homes Inc.

Subject: Proposed Plan of Subdivision – Failure of the City of Mississauga to make a decision

Purpose: To permit the creation of lots and blocks for the dwellings, public roads, and the stormwater pond

Property Address/Description: 1200 Old Derry Road

Municipality: City of Mississauga

Municipality File No.: OZ 19/20

OLT Case No.: OLT-22-002271

Legacy Case No.: PL210126

OLT Lead Case No.: OLT-22-002270

Legacy Lead Case No.: PL210125

Heard: May 8-11, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Hanlon Glen Homes Inc. City of Mississauga Frank Baldesarra Meadowvale Village Community Association

J. Alati A. Margaritis L. Magi J. Pappas P. Van Loan M. Bench

DECISION DELIVERED BY S. BRAUN AND INTERIM ORDER OF THE TRIBUNAL

BACKGROUND AND CONTEXT

1This decision and Order arises out of a hearing in relation to appeals brought by Hanlon Glen Homes Inc. (“Applicant”) pursuant to s. 34(11) and s. 51(34) of the Planning Act¹ (“Act”) against the failure of the City of Mississauga (“City”) to make a decision on applications for Zoning By-law Amendment (“ZBA”) and draft Plan of Subdivision (“Draft Plan”) in relation to the property located at 1200 Old Derry Road.

21200 Old Derry Road is a large landholding totalling approximately 87.6 ha, which is traversed by the Credit River Valley and is located in a large suburban district of the City known as the Meadowvale neighbourhood. It is surrounded by Old Derry Road and the Meadowvale Conservation Area to the north, Creditview/Old Creditview Road to the west, Highway 401 to the south and the existing Meadowvale residential neighbourhood to the east. The Draft Plan encompasses a 25 ha portion of the total landholding (“draft plan area”/”site”).

3Two single family detached lots abut the northerly extent of the Draft Plan - 1160 Old Derry Road, referred to throughout the hearing as the Kahk property, and 1170 Old Derry Road (“the Baldesarra property”). Mr. Frank Baldesarra has owned and lived at the Baldesarra property since approximately 1980. It is a unique property in the area given that it is quite large (roughly 4 ha) and, at present, contains a number of structures including a large estate residential dwelling, a garage/guest suite and pool house, as well as a number of amenities such as a pool, man-made pond, tennis courts and a private golf course. Both of the aforementioned properties are accessed via a driveway from Old Derry Road and have appropriate easements to permit access through 1200 Old Derry Road.

4The following aerial photograph, which was referred to repeatedly throughout the hearing, helpfully depicts the Applicant’s total landholding (in red); the draft plan area (dotted black line); the Baldesarra property (in blue); and the surrounding area, including the existing Meadowvale neighbourhood to the east.

PROCEDURAL HISTORY AND SETTLEMENT PROPOSAL

5At a previous Case Management Conference held on November 8, 2021 before a panel differently constituted, the Tribunal granted Party Status to: Mr. Baldesarra; the Regional Municipality of Peel (“Region”); the Meadowvale Village Community Association (“MVCA”); and Credit Valley Conservation (“CVC”).

6Additionally, in excess of 70 interested individuals sought, and were granted, Participant Status. The statements filed by the Participants raised concerns with the proposed development which overlapped significantly and focused predominantly on increased density and traffic; lack of compatibility with the neighbourhood and the historic character of the area; natural heritage concerns in relation to trees and other wildlife (especially in the Credit River Valley); and flooding/stormwater management.

7Of note, one Participant raised a unique concern with respect to Block 39 Hickory Hollow Glen, PLAN 43M1650, which is located immediately to the east of the proposed subdivision and is subject to a restrictive covenant which indicates that it cannot be developed until it is attached to another semi detached block when 1200 Old Derry Road is developed.

8A number of significant developments took place prior to the hearing. Importantly, ongoing discussions between the Parties resulted in modifications to the proposal and ultimately led to the Applicant and the City reaching a full settlement, endorsed by City Council on March 22, 2023. In addition, the CVC and the Region formally withdrew from the proceeding on March 21, 2023 and March 28, 2023, respectively, confirming that from their perspective any outstanding technical matters relating to the proposed development could be addressed through draft plan conditions.

9The settlement proposal contemplates the creation of a new subdivision consisting of 324 units, including 260 new single detached dwellings and 62 new semi-detached dwellings. In addition, two existing detached homes designated under the Ontario Heritage Act² are proposed to be retained on the site. The “Simpson-Humphries House” will be retained in situ on proposed lot 308 and the “Foreman’s Residence” will be retained, but relocated onto lot 308. The proposal also contemplates a public park and contributions to the environmental lands system, as well as protection of natural heritage features achieved through alterations to a previously proposed permanent through access from the subject property to Old Derry Road (“Street A”).

10For environmental/ecological reasons relating to the preservation of a woodlot, Street A is now proposed as an interim construction access from Old Derry Road. Following completion of the development, Street A will terminate in a T-turnaround just south of natural heritage/open space lands and the proposed subdivision will be accessed from three points along the east side of the development through the existing residential subdivision.

11The City appeared at the hearing in support of the settlement. The MVCA, which had no concerns with the proposed settlement, appeared but did not take part in the hearing. Mr. Baldesarra appeared in opposition to the settlement, taking the position that the development, as proposed, will result in unacceptable adverse impacts affecting not only the present use and enjoyment of his property but the future redevelopment potential thereof. In his view, the scale and configuration of the proposed lots abutting the south, east and west of his property are incompatible with, and lack appropriate transition to, same. Additionally, he is concerned that the access to his current home and any future development on his property will be adversely affected by the proposed change to Street A.

LEGISLATIVE FRAMEWORK

12The Tribunal must be satisfied that the proposed development is representative of good planning in the public interest and the proposed planning instruments must be found to: have appropriate regard for matters of Provincial interest in s. 2 of the Planning Act, be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). As the subject applications were submitted to the City on December 19, 2019, the Tribunal must be satisfied that they conform with the Region of Peel Official Plan, as consolidated in 2018 (“ROP”) and the Mississauga Official Plan, as consolidated in 2019 (“MOP”) which includes Meadowvale Village Neighbourhood Character Area policies and Special Site policies applicable to the site, which falls within an area identified as Special Site 10.

13In addition to the foregoing, the Draft Plan must have appropriate regard for the criteria set out in s. 51(24) of the Act and the proposed conditions of draft plan approval must be found to be reasonable and appropriate given the nature of the development. Finally, in accordance with 2.1(1) of the Planning Act, regard must be had for the decision of City Council and the information considered by it in the course of making that decision.

14For the reasons that follow, the Tribunal finds the proposed development is representative of good planning in the public interest and the proposed ZBA, Draft Plan and implementing conditions satisfy the requisite legislative tests.

THE HEARING

15The Parties agree that residential development is appropriate on the site which has, for many years, been designated in both the ROP and the MOP for urban residential development. The majority of the Draft Plan area is designated Residential Low Density II (“LD-II”), which permits detached, semi-detached and duplex dwellings as well as triplexes, street townhouses and other forms of low-rise dwellings with individual frontages. There are also portions located along the western and northern boundaries of the site designated Residential Low Density I (“LD-I”), which permits detached dwellings on lots with a minimum frontage of 18 metres (“m”).

16The Baldesarra property is also designated LD-I but is subject to zoning standards which require a minimum lot frontage of 22.5 m. The Parties agree that there are no comparable properties in Meadowvale Village, given its large size and the existing amenities thereon. The Parties further agree that, although the Baldesarra property may be redeveloped in the future, there are no existing approvals or applications for development at present. The Tribunal heard that it is Mr. Baldesarra’s intention to continue living at and enjoying the property for the foreseeable future.

17The Parties were primarily at odds with respect to the interface between the proposed development and the Baldesarra property, with Mr. Baldesarra taking the position that the proposal will result in an inappropriate planning relationship and transition between his property and the abutting lots to the south, east and west. It was submitted that the proposed lot size, lot coverage and interior side yard setbacks for those abutting lots cumulatively result in unacceptable adverse impacts to the Baldesarra property in both its current and planned context. The Parties were also at odds with respect to the proposed change to Street A. Mr. Baldesarra takes the position that the elimination of Street A as a permanent through access to Old Derry Road will negatively affect the current access to his property and will affect access to any future development which may take place thereon.

18Counsel for Mr. Baldesarra argued that the proposal fails to conform with the MOP, as it seeks to deploy density without regard for compatibility, sensitivity and transition to the existing context of the Baldesarra property. He requested the Tribunal issue an Order directing the Applicant to revise its proposal in accordance with an alternative draft plan of subdivision (“alternative concept plan”) representing Mr. Baldesarra’s preferred vision for the development of the site. He further requested the Tribunal direct the Parties to prepare appropriate draft plan conditions specifically addressing compatibility with, and impact upon, the Baldesarra property including, but not limited to: mitigation of construction impacts and visual impacts.

19The Applicant took the opposite position, submitting that the proposed sizes and zoning standards for the lots abutting the Baldesarra property will not result in an inappropriate planning relationship, nor will they raise issues of incompatibility but rather, are sensitive to, and capable of coexisting with the Meadowvale neighbourhood, in general, as well as the Baldesarra property in both its current and planned context without unacceptable adverse impacts. With respect to Street A, it was submitted that the proposed change appropriately responds to comments and concerns relating to natural heritage raised by the City and the MVCA and that it will not result in unacceptable adverse traffic impacts to the neighbourhood or to the current and planned context of the Baldesarra property.

20Counsel for the Applicant requested the Tribunal approve, in principle, the Draft Plan, conditions to implement the Draft Plan and draft ZBA, generally in accordance with Exhibits 8 A, B and C, respectively. He further requested the withholding of a final order, allowing 90 days for the City and the Applicant to provide copies of the final form of the instruments to the Tribunal for its review and approval.

21Three witnesses were qualified without objection to provide opinion evidence on the matters before the Tribunal. The Applicant called Ryan Guetter, who testified in relation to matters of land use planning and Sharon Sterling, who provided testimony in traffic and transportation planning. Land use planning evidence for Mr. Baldesarra was provided by Ronnald Palmer.

Land Use Planning Evidence

Planning Act, PPS, GP, ROP

22At paragraph 15 of his witness statement, Mr. Palmer notes that Mr. Baldesarra’s concerns are focused on site-specific issues relating to impacts of the proposed development on his abutting personal property that are appropriately dealt with in the MOP. Consequently, the majority of the disputed evidence at the hearing focused upon MOP policies, including character area and special site policies therein.

23The land use planning witnesses were in general agreement that the proposed development has appropriate regard for matters of Provincial interest and the criteria in s. 51(24) of the Planning Act, is consistent with the PPS and conforms with the GP and the ROP. For the purposes of satisfying the Tribunal in relation to the foregoing, Mr. Guetter provided a comprehensive overview of applicable sections of the Act and policies in the PPS, GP and ROP, detailing the ways in which the proposed settlement achieves consistency/conformity with same. He explained that the proposal is for compact residential development on an underutilized property in an appropriate location for intensification, which will efficiently use land and infrastructure including transportation. The proposal contemplates low density development next to low density development which will logically extend, and connect to, the existing neighbourhood to the east, achieving the goal of creating a complete and walkable community which offers a range and mix of lots and house sizes to aid in the achievement of Provincial, Regional and local policies aimed at accommodating growth.

24Mr. Guetter highlighted specific aspects of the settlement proposal, such as the retention and integration of the Simpson-Humphries House and Foreman’s Residence, which he testified will result in protection of cultural heritage resources and promote a sense of place. He further testified that the alteration to Street A will allow for the retention of hundreds of trees and the reduction of ecological impacts, so as to ensure long-term protection of natural features in the area.

25He testified that a number of technical studies and reports were conducted, including a functional servicing and stormwater management report, demonstrating the appropriateness of the proposal from a technical perspective and the adequacy of available services to support the development. He also explained that the development is deliberately located away from valleylands with appropriate setbacks from floodplains and other features, demonstrating regard for the protection of public health and safety, conservation of natural resources and flood control. With reference to a detailed chart (Exhibit 7A, paragraph 205) evaluating the proposal against s. 51(24) of the Planning Act, he opined that the proposed Draft Plan has appropriate regard for the applicable criteria set out therein.

26Finally, he explained that conditions of draft plan approval are yet to be finalized, owing mainly to the need for updates to technical studies required by the City, Region and CVC. Notwithstanding the foregoing, he reviewed the conditions as they are currently drafted and opined they are reasonable and appropriate given the nature of the proposed development. He specifically drew attention to the requirement for a construction management plan (“CMP”) to address temporary construction impacts, as well as conditions that directly address the Participant concern regarding a restrictive covenant limiting development of Block 39 Hickory Hollow Glen, PLAN 43M1650. He explained that there are “remnant” or “part” lots on previous plans of subdivisons which could not be completed because they did not meet necessary zoning standards. The proposed conditions identify certain lots on the proposed Draft Plan, specifying that they can only be developed in conjunction with the aforementioned remnant/part lots.

27With the exception of a concern raised by Mr. Palmer in relation to s. 51(24) and the appropriateness of the size of the lots proposed to abut the Baldesarra property, he largely concurred with the foregoing evidence provided by Mr. Guetter, but pointed out that the alternative concept plan depicting Mr. Baldesarra’s preference for the development of the site would also meet the requisite legislative tests.

MOP – applicable policies

28There was general agreement between the land use planning witnesses that, for the purposes of deciding upon the primary dispute, particularly relevant general MOP policies include, but are not limited to:

• 5.1.7 Mississauga will protect and conserve the character of stable residential neighbourhoods
• 5.3.5.5 Intensification within Neighbourhoods may be considered where the proposed development is compatible in built form and scale to surrounding development, enhances the existing or planned development and is consistent with the policies of this Plan
• 5.3.5.6 Development will be sensitive to the existing and planned context and will include appropriate transitions in use, built form, density and scale
• 9.1.3 Infill and redevelopment within Neighbourhoods will respect the existing and planned character
• 9.2.2.3 While new development need not mirror existing development, new development in Neighbourhoods will: a) respect existing lot patterns; b) respect the continuity of front, rear and side yard setbacks; c) respect the scale and character of the surrounding area; d) minimize overshadowing and overlook on adjacent neighbours; g) be designed to respect the existing scale, massing, character and grades of the surrounding area
• 9.5.1.2 Developments should be compatible and provide appropriate transition to existing and planned development by having regard for the following elements: d) street and block patterns e) the size and configuration of properties along a street, including lot frontages and areas g) the size and distribution of building mass and height h) front, rear and side yards l) privacy and overlook

29They further agreed that the following Meadowvale Village Neighbourhood Character Area policies and Special Site policies, as set out in the MOP, are particularly relevant in the context of this dispute:

• 16.17.2.5 Subdivisions which provide a mixture of lot sizes which vary in a highly intermixed, seemingly random fashion to echo the lotting fabric of the Village, are encouraged
• 16.17.3.1 The Residential Low Density I designation permits detached dwellings on lots with minimum frontages of 22.5 m except in the following area: a) land which does not immediately abut the Heritage Conservation District may be developed for detached dwellings on lots with a minimum frontage of 18 metres
• 16.17.2.23 Building heights should be limited to two and a half storeys, lot coverage should be addressed, and provision made for generous setbacks to ensure a sense of spaciousness around the Village, with larger setbacks closer to the Village
• 16.17.5.10.1 The lands identified as Special Site 10 are located on the south side of Old Derry Road, east of the Credit River
• 16.17.5.10.2 Development will have regard for its relationship to the Meadowvale Village Heritage Conservation District and will be designed in a similar manner to the lands to the east of the site and incorporate similar design features

MOP – evidence of Mr. Guetter

30Mr. Guetter provided a detailed compilation of visual evidence (Exhibit 3) which he referred to extensively throughout his testimony. He began by providing a general overview of the Draft Plan, which contemplates single detached units on larger lots with frontages ranging between 11 m to 18 m and semi-detached units on smaller lots, with frontages of 7.62 m, explaining that this plan evolved from, and logically continues, what exists in the stable residential neighbourhood to the east, drawing attention to similar orderly grid-patterned layouts with east/west connections, some cul de sacs and curved roads.

31He put before the Tribunal a variety of photographs of the existing neighbourhood and conceptual drawings of the proposed development and opined that the Draft Plan achieves appropriate transitions in use, built form, density, scale and similarities in architectural expression, aligning with special site policies that speak to designing the site in a similar manner to the neighbourhood to the east, with a range of lot sizes intermixed in a seemingly random fashion. He specifically drew the Tribunal’s attention to the fact that the proposed built form and lot size generally increases from east to west across the draft plan area with variations in lot sizes and front/side yard setbacks, similar to the mixture of differing lot sizes and relationships found in the neighbourhood to the east.

32In relation to the Baldesarra property in particular, the lands designated LD-I abutting the western edge are proposed to be divided into larger lots with minimum frontages of 18 m to maintain the low density, estate-like character of lots near the Credit River Valley. On the lands designated LD-II, to the south and east of the Baldesarra property, lots with a minimum frontage of 11 m are proposed. Mr. Guetter explained that the difference in proposed density responds directly to the distinctions in land use designation, as well as MOP character area and special site policies like 16.17.3.1 a). In his view, the lot sizing to the south and east play an important role in integrating a compatible lotting pattern with other lots in the proposed subdivision and with the existing built-out residential subdivisions to the east. He opined that applicable special site policies provide precise direction for the development of the site and place weight upon what is occurring in the existing subdivisions to the east.

33Mr. Guetter provided a comprehensive review of the proposed ZBA, which provides for a combination of different zone categories. He noted that relief requested includes increases in maximum lot coverage and decreases in setbacks, pointing out the zoning provisions proposed were a direct result of discussions with the City, which expressed a preference for increased space between proposed dwellings, a decrease in allowable lot coverage and more expansive rear yards.

34In relation to the Baldesarra property, Mr. Guetter explained that the proposed zone for the lots to the south and east is the same as that proposed for the majority of the draft plan area which, in his view, respects the character and lotting patterns established by the existing plan of subdivision to the east. These lots would generally have a minimum frontage of 11m, an increased maximum lot coverage of 48% versus the current 40%, and decreases in interior side yard setbackss from 1.2 m to 0.61 m and rear yard setbacks from 7.5 to 7.0 m. The proposed zoning for the lots on the western boundary of the Baldesarra property contemplates a minimum frontage of 18 m, an increased maximum lot coverage of 45% versus the current 30%, a decrease in rear yard setback from 7.5 to 7.0 m and a decreased interior side yard setback of a straight 1.2 m, versus the current 1.8 m plus 0.61 m for each additional storey, or portion thereof, above one storey.

35The visual evidence presented included a potential expression of future residential development which might occur on the Baldesarra property based upon its planned context, depicting very large lots with frontages ranging from roughly 22 to 25 m. The Parties agreed that this was but one possibility, and future development could include lots with narrower frontages, given policies which direct a minimum frontage of 18 m on the LD-I lands in this area. In Mr. Guetter’s view, absent active applications or formal development plans for the Baldesarra property, it is more important that appropriate and compatible lotting and block patterns be achieved with the existing subdivision to the east, which established the overall physical character of the area, than the lotting patterns of a potential future subdivision that has not been advanced at this time or the existing condition, which is expected to change over time. Overall, in relation to the planned context for the Baldesarra property, Mr. Guetter expressed the view that the proposed lot sizing on the Draft Plan achieves an appropriate balance which will allow future development on the Baldesarra property to take the form of a subdivision with either larger or smaller lots.

36Mr. Guetter opined that the proposed zoning standards are reflective of a more contemporary approach to land use and development trending toward a higher percentage of lot coverage which is employed throughout Mississauga and the Greater Toronto Area. In his view, the provisions in the proposed ZBA, which resulted from extensive discussion and collaboration with City staff, are appropriate and will ensure that all lots in the draft plan area are capable of accommodating high quality low-rise residential development with generous yards and setbacks, while providing a sense of spaciousness and supporting the character of Meadowvale Village, as required by the MOP.

37Speaking specifically to the current condition of the Baldesarra property, Mr. Guetter noted that transition is not generally a concern in situations such as this, where the density and built form proposed (low density, single detached dwellings) is the same as what exists. In any event, he opined that the proposed setbacks aid in the achievement of transition and compatibility by providing adequate distance/spatial separation to mitigate visual impacts and impacts to privacy. He referenced visual depictions of the distances between proposed built form and existing structures on the Baldesarra property (Exhibit 3, Tab 8), which show the main dwelling on the Baldesarra property in excess of 100 m away from the proposed dwellings to the east and south and 38 m away from proposed dwellings to the west. He also led the Tribunal through a series of photographs taken from a number of locations on the site which depict existing natural features including, but not limited to: large swaths of established landscaping/vegetation and mature trees surrounding the majority of the Baldesarra property, as well as berms and other grade changes between the two properties. He noted that many of the structures and existing amenities on the Baldesarra property are either not visible at all, or only partially visible, owing to these physical features.

38Mr. Guetter drew the Tribunal’s attention to the following definition of compatibility in the MOP:

“compatible” means development, which may not necessarily be the same as, or similar to, the existing or desired development, but nonetheless enhances an established community and coexists with existing development without unacceptable adverse impact on the surrounding area

and he ultimately opined that compatibility as required by, and defined in, the MOP is achieved through a combination of the aforementioned physical features and proposed zoning provisions for the abutting lots which, in his view, appropriately mitigate any potential adverse impacts and allow the proposed development to coexist with the Baldesarra property and the larger Meadowvale neighbourhood in both its current and planned context without unacceptable adverse impacts. With respect to enhancement of the community, Mr. Guetter reiterated that the proposed development logically extends the neighbourhood to the east, provides open spaces and protects both natural and cultural heritage resources.

39Although the majority of the evidence focused on specific MOP policies for the purposes of aiding the Tribunal in coming to a decision on the discrete issues raised by Mr. Baldesarra, Mr. Guetter provided an overall opinion that the proposal conforms with the entirety of the MOP and is representative of good planning in the public interest, as it meets broader planning objectives of establishing an orderly, appropriate and desirable pattern of development which optimizes the use of land and services, and achieves an appropriate balance between intensification, housing objectives and compatibility with the existing neighbourhood character.

MOP – evidence of Mr. Palmer

40Mr. Palmer opined that the proposed development represents a major change that will have dramatic and unacceptable adverse impacts upon the Baldesarra property, including temporary construction impacts; long term visual, spatial and privacy impacts; and impacts upon the future development potential thereof. His land use planning analysis was predicated upon an opinion that the assessment of the proposal’s compatibility includes more than just the words and tests set out in the MOP definition of ‘compatibility’, and must be supplemented with the following four additional factors:

• Protect the quality of life of existing residents;
• Protect, respect and conserve the character, scale, massing and identity of the surrounding community;
• Demonstrate context sensitivity and include appropriate transitions in use, built form, density and scale; and
• Preserve and respect existing/future lotting patterns and the continuity of front, rear and side yard setbacks.

41He reminded the Tribunal that the MOP is to be read in its entirety, and testified that he created the four additional factors drawing upon thematic similarities found in a variety of policies therein (including, but not limited to: s. 5.1.7, 5.3.5.6, 9.1.3, 9.2.2.3), which speak to:

• preservation and conservation of and respect for neighbourhood character;
• sensitivity to existing and planned context through appropriate transitions;
• respect for the experience, identity and character of the surrounding context and the protection of the quality of life of residents; and
• respect for existing lot patterns, continuity of front, rear and side yard setbacks, the scale, massing and character of the surrounding area.

He noted that all of those policies are definitively worded, highlighting the deliberate use of the word “will”, pointing out that this denotes a mandatory requirement.

42In Mr. Palmer’s view, lot patterns, continuity of front, rear and side yard setbacks and respect for the massing, scale and character of the surrounding area are crucial elements in the achievement of context sensitivity and the protection of community character and quality of life. He opined that the proposed sizes of the lots abutting the Baldesarra property, in addition to the sought-after increases in maximum lot coverage and decreases in interior side yard setbacks, represent three primary design elements which, when considered cumulatively, result in development that is not sensitive to, or respectful of, the Baldesarra property in its current estate residential state and fails to protect the quality of life of the Baldesarra family, whose continued enjoyment of the property will be unacceptably impacted from privacy, visual and spatial standpoints with approximately 35 new homes to look at, and to be looked in on from.

43He explained that, as lot coverage increases and setbacks and lot sizes decrease, the space between potential built forms is reduced, creating an “imposing, crowded visual experience and a walled in sense of enclosure” around the Baldesarra property, rather than promoting a sense of spaciousness, as set out in s. 16.17.2.2.3 of the MOP. In his view, this represents a significant change to the views the Baldesarra family currently enjoys from their property. He circled back to the concept of compatibility, noting that it is not simply about new development coexisting with its surroundings. He drew attention to MOP s. 5.3.5.5 and the definition of compability, both of which speak to enhancing the established community and surrounding existing or planned development. In his view, the proposed interface fails to enhance the Baldesarra property in both its current or planned context.

44Ultimately, Mr. Palmer opined that the proposed development must be improved to be approved. He took the Tribunal through the alternative concept plan, which envisions all lots abutting the Baldesarra property as having a minimum frontage of 18 m, maintaining the current zoning standards for the lots on the western boundary and applying those same zoning standards to the lots on the south and east boundaries. He opined that this plan should be preferred, as it improves transition to the existing Baldesarra home and landscape and allows for breaks between buildings, creating a more open, private and spacious view and feeling for both the Baldesarra family and residents of any future development on the property. To illustrate his point, Mr. Palmer put before the Tribunal two drawings depicting, from a bird’s eye view, a maximum build-out of the current settlement proposal versus a maximum build-out of the alternative concept plan. He opined that the two drawings evidence a stark difference in the view looking outward from the Baldesarra property.

Settlement proposal Alternative concept plan

45With reference to the settlement proposal on the left, Mr. Palmer pointed out the potential for exceptionally large homes on the 18 m lots to the west, owing to the proposed increase in lot coverage (from 30% to 45%). When combined with the proposed straight 1.2 m interior side yard setback regardless of the height of the dwelling (which could be up to 2.5 storeys), the development would lack transition to and be incompatible with, the existing and planned context of the Baldesarra property. He explained that the current zoning standards for the lands on the western boundary of the Baldesarra require a minimum interior side yard setback of 1.8 m plus 0.61 m for each additional storey or portion thereof above one storey, the intent of which is to ensure that the space between houses expands as built form increases in height. Similarly, he noted that the lots to the south and east with a proposed minimum frontage of 11m, would be substantially smaller than the current zoning of the Baldesarra property (minimum frontage of 22.5 m) and the lots to the west (minimum frontage of 18 m), exacerbating the constricting and walling-in effect of the proposed increases in lot coverage and decrease in setbacks for those lots.

46In contrast to Mr. Guetter, who compared the proposal against the whole of the neighbourhood to the east and assigned weight to special site policies which direct new development be designed in a similar manner thereto, encouraging varying lot sizes in a highly intermixed and seemingly random fashion, Mr. Palmer opined that all policies within the MOP carry equal weight, noting the exercise of balancing and weighing general versus specific policies is required only in the event of a conflict. In any event, with respect to the subdivisions to the east, with reference to the MOP Land Use Schedule Map (Exhibit 3, Tab 16), Mr. Palmer compared the proposal to a specific area located between Pepperidge Crossing and Lamplighter Way and between Second Line West and Historic Trail. He pointed out that there are very large lots on LD-I lands located between Second Line and Early Settler Row, with larger and smaller lots located across the road and opined that this particular cross-section represents a “precedent” of an interface between LD-I and LD-II lots which should be followed on the draft plan for the sizing of the lots abutting the Baldesarra property.

47Finally, Mr. Palmer noted the current proposal would result in impacts to safety due to an increased likelihood of trespassing and uninvited visitors on the Baldesarra property. He opined that abutting lot owners would be negatively impacted by the existing use of the Baldesarra property citing, for example, noise impacts associated with the substantial landscaping required to maintain the private golf course and the potential for errant golf balls arising from the use of the course. Moreover, he listed a number of temporary construction impacts to the Baldesarra property as it currently exists including, but not limited to: noise, dust, dirt and vibration as well as risks to health and safety arising from the joint use of Street A as a means of access for those at the Baldesarra property and for construction vehicles accessing the site.

48In light of all of the foregoing and his approach to the evaluation of compatibility, Mr. Palmer opined that the proposed development, as it is currently configured, fails to achieve conformity with the MOP, is not representative of good planning in the public interest and should not be approved. Instead, it was his recommendation that any future development of the Draft Plan Area proceed as reflected in the alternative concept plan which, in his view will protect both the current quality of life enjoyed by the Baldesarra family as well as the future development potential of their property.

Traffic and Transportation Planning Evidence

49Ms. Sterling’s was the only opinion evidence in relation to matters of traffic and transportation before the Tribunal, which stood uncontested. She spoke, in general, about the traffic impacts of the proposed development and more specifically, to concerns raised by Mr. Baldesarra in relation to accessing his existing property and/or any future residential development thereon.

50She explained that a 2019 Traffic Impact Study (“TIS”) was completed, assessing all access scenarios and the overall transportation network in accordance with the City’s terms of reference. Two revisions of the TIS were completed following comments from the City, the MVCA, relevant agencies and two peer reviews completed by the City’s traffic consultant. Ms. Sterling testified that the City and Region have indicated no further studies/reports are required and she opined that there is no reason for the development to be subject to a Holding symbol in relation to traffic.

51Ms. Sterling confirmed that a key component of the settlement between the Applicant and the City is the termination of Street A south of the natural heritage/open space lands, which addresses concerns of the City and the public in relation to the protection of a woodlot. She explained that the Draft Plan before the Tribunal instead contemplates three points of access, located south of the termination of Street A, which will connect the proposed new subdivision with adjacent, existing subdivisions. In her opinion, these accesses are capable of accommodating and circulating, without conflict, all types of traffic, including passenger, emergency and waste collection vehicles. She further opined that the traffic generated from the proposed number of units can be accommodated on the internal road network and external boundary road network with minor improvements and all local roadways will operate below capacity. Ms. Sterling also spoke briefly to proposed Traffic Demand Management measures which she opined are appropriate for this site, including but not limited to: a planned walkway intended to connect the proposed and existing developments to a nearby school, and the distribution of transit information packages to residents which specify available public transit routes, stops and schedules.

52With respect to concerns raised by Mr. Baldesarra, it was Ms. Sterling’s uncontested evidence that the proposed development will not adversely impact the current access to the Baldesarra property nor will it adversely impact access to any future development thereon, specifically noting there will be no interference with the easement over 1200 Old Derry Road. She explained that accessing Old Derry Road in the absence of Street A (assuming an average speed of 30 kilometres per hour and stopping at stop signs) would result in an increase in travel time of approximately one minute. In light of the foregoing, it was Ms. Sterling’s opinion that the elimination of the Street A access to Old Derry Road would not result in a significant impact to future residents of a redeveloped Baldesarra property.

53In cross examination, Ms. Sterling conceded that the TIS did not include an analysis of the number of construction vehicles that would be required to use the proposed interim construction access. However, she explained that this not within the scope of the study, noting that it would be for the City to address such matters in a forthcoming CMP which could, for example, specify the types of vehicles permitted to access the site, hours of operation and restrictions on movements.

ANALYSIS AND FINDINGS

54Although this appeal initially arose out of the City’s failure to make a decision on the subject applications, City Council ulitmately made the decision to settle its dispute with the Applicant and instructed counsel to appear at this hearing in support of the revised proposal. The Joint Book of Documents filed as Exhibit 1 includes extensive materials evidencing the evolution of the proposal and the various technical studies submitted in support of the development. In the course of determining the appeal, the Tribunal has given regard to those materials and to the the fact that the settlement proposal, which was arrived at with the benefit of consultation with the MVCA and City Staff, has been endorsed by City Council.

55With respect to matters of land use planning, it should be noted that the Tribunal’s analysis does not include commentary on temporary impacts associated with construction, as these are not land use planning grounds. Rather, such matters are governed by the City’s building and noise by laws and/or the CMP, which is one of the proposed conditions of draft plan approval. Although Mr. Baldesarra requested an Order directing the Parties to agree upon appropriate draft plan conditions to address impacts to his property specifically, the Tribunal agrees with counsel for the Applicant, who submitted that, while Mr. Baldesarra is certainly is free to provide input to the City on matters such as the CMP, restoration plantings, etc., it is ultimately up to City Staff to determine whether to consider such input in drafting appropriately worded conditions, the intention of which are to benefit the whole community rather than a single land owner.

56It should also be noted that, despite the request for an Order directing the Applicant to revise its proposal in accordance with the alternative concept plan and Mr. Palmer’s consistent characterization of same as “a better alternative”; “more compatible”; “an improvement in transition”; and “the best solution”, the Tribunal does not evaluate hypothetical alternatives, nor does it measure the proposal under appeal against such alternatives, but rather against the relevant legislative and policy framework. With respect to the use of Mr. Palmer’s drawings of the proposal and the alternative concept as an illustrative tool for the purposes of visualizing potential impacts, for reasons discussed in further detail below, the Tribunal found these to be of limited assistance in assessing whether the proposed development would result in unacceptable visual or privacy impacts affecting the Baldesarra property in its current condition and/or as it might be developed in the future.

57The definition of compatibility, which has been deliberately and explicitly set out in the MOP, does not include any additional factors nor any direction to look to other policies.

“compatible” means development, which may not necessarily be the same as, or similar to, the existing or desired development, but nonetheless enhances an established community and coexists with existing development without unacceptable adverse impact on the surrounding area.

As such, the Tribunal was not persuaded by Mr. Palmer’s opinion that four additional factors should be “read into” that definition. It is, however, acknowledged that Mr. Palmer sourced those additional factors from other polices within the MOP and that the evaluation of the proposal must include consideration of whether conformity with such policies is achieved.

58It is clear that the proposed development will not be the same as, or similar to, the Baldesarra property. It is also clear that the proposed development will inevitably result in change and therefore some degree of impact upon the Baldesarra property which, at present, is surrounded by vacant land. Despite the foregoing, the Tribunal was not persuaded that those impacts rise to the level of unacceptable such that the proposed development will be incapable of coexisting with the Baldesarra property.

59Although Mr. Palmer repeatedly opined that the proposal will result in unacceptable adverse impacts upon the existing Baldesarra property and the future development thereof, he failed to substantiate this opinion with any compelling evidence. The Tribunal disagrees with the submission of counsel for Mr. Baldesarra that, despite no photographic evidence being led in support of his position, one must look at things from a bird’s eye view, as set out in Mr. Palmer’s drawings to understand the impacts and appreciate the crowding and walling-in effects of the proposal. Instead, the Tribunal considered the best evidence in this regard to the be the photographs presented by Mr. Guetter, as these provide a more realistic “on the ground” perspective, more closely representative of what would be seen and experienced either on the Baldesarra property or on the lots abutting it.

60What was apparent to the Tribunal when considering Mr. Palmer’s bird’s eye view drawings, is that they do not show any changes in grade or other physical features. In addition, consistent with the photographic evidence led by Mr. Guetter, the drawings do show what appears to be a wall of established landscaping and mature trees between the majority of the Baldesarra property and the abutting lots. It is noted that, in terms of overlook on adjacent neighbouring properties, the MOP speaks to the minimization of overshadowing and overlook from new development rather than the elimination of same. Although Mr. Palmer conceded that there are a number of tools which can be used to achieve transition and mitigate impacts to achieve compatibility (including berms, barriers, hills, trees and other landscaping elements), he seemed to largely discount these existing physical features and any mitigating or minimizing effects these might have upon potential impacts from the proposed development. In addition, although Mr. Palmer repeatedly asserted that there would be unacceptable adverse impacts to the current view from the Baldesarra property, which would look out upon approximately 35 new homes, this Tribunal and its predecessors have repeatedly noted there is no right to a view.

61The Tribunal presumes that the majority of the outdoor amenities on the Baldesarra property (pool, golf course and tennis courts) would be used mainly through times of the year when the mature trees and other vegetative landscaping elements are in active growth stages, and accepts Mr. Guetter’s opinion that, owing to proposed zoning standards which provide generous spatial distance and existing physical features which serve to impede and screen views, any potential privacy, visual and spatial impacts will be appropriately mitigated, such that the proposal will not result in unacceptable adverse impacts upon the Baldesarra family’s quality of life and enjoyment of their property and its various amenities. In addition, although Mr. Palmer opined that the proposed development would result in other negative impacts including safety issues arising from trespassers on the Baldesarra property and nuisances to residents of the proposed development in terms of noise and errant golf balls arising from the use and landscaping of the Baldesarra property, the Tribunal finds the foregoing to be apprehensions which were unsupported by any evidence.

62Mr. Palmer delivered what the Tribunal considered to be a rather granular lot fabric analysis, focused solely upon one small area in the neighbourhood to the east. Although throughout his testimony he acknowledged that new development need not be the same as existing development, he characterized that one small area as a “precedent” and urged the Tribunal to find that the interface between the Baldesarra property and the abutting lots should be the same, despite the fact that his chosen cross-section is intersected by a substantial right of way (Early Settler Row), which does not and is not proposed to exist on the draft plan area.

63The Tribunal instead preferred Mr. Guetter’s more holistic approach to lot fabric analysis, as he did not focus on one specific area but took into account the entirety of the neighbourhood to the east, which does not have a homogeneous lot pattern and includes alternative approaches to interfacing between lands designated LD-I and LD-II. Whereas Mr. Palmer opined that all MOP policies should be given equal weight except in circumstances where policies conflict, it is specifically noted in MOP s. 16.17.5 that there are sites within the character area that merit special attention (emphasis added). As such, the Tribunal preferred Mr. Guetter’s interpretation that weight should be given to special site policies which provide specific direction that new development in this area to be designed in a similar manner to the lands to the east of the site and which encourage varied lot sizes in an intermixed and seemingly random fashion. The Tribunal further accepted Mr. Guetter’s opinion that the proposal conforms with those policies.

64With respect to lot sizing and interfacing, the Tribunal would note that policies for Special Site 10 include minimum lot frontages of 18 m for lands located outside of the Heritage Conservation District designated LD-I, but there are no similar policies requiring a minimum frontage on lands designated LD-II, such as those located to the south and east of the Baldesarra property, nor are there any policies in the MOP which require a specific approach be taken to the interface between lands designated LD-I and LD-II.

65With respect to that portion of the definition of compatibility which speaks to enhancement of the existing community, Mr. Palmer did not in any way acknowledge, for example, how the development contributes to the extension/connection of the neighbourhood and the creation of a more walkable community with accesses to the local school, trails and parks or the promotion of a sense of place through the retention and combined siting of the Simpson-Humphries House and Foreman’s Residence. In the view of the Tribunal, the foregoing are representative of enhancements to the existing community. While it is certainly acknowledged that the Baldesarra property is a part of that existing community, the Tribunal does not accept Mr. Palmer’s assertion that in order to be compatible, the proposed development must somehow enhance the Baldesarra property specifically.

66The Tribunal agrees with the argument advanced by counsel for the Applicant, that policies which speak to enhancement of the established community; compatibility with and respect for/sensitivity to neighbourhood character; and addressing lot coverage and setbacks to provide a sense of spaciousness, all refer to the broader community or neighbourhood, rather than to any one individual property. With respect to compatibility specifically, the Tribunal’s attention was drawn to the following passage from the case of Scarborough (City) Official Plan Amendment No. 1001, Re, 1998 CarswellOnt 5601, which was considered instructive:

It is this Board’s view that while assessing the magnitude of differences between that proposed and that existing can assist in assessing compatibility, the truly objective test of compatibility is whether or not the proposal will have a physical or functional undue adverse impact on the existing development. This is not a test which requires a determination as to the existing residents’ “likes” or “don’t likes” in respect to a proposal. Rather it is a gathering of evidence of the real and tangible negative impact that the proposal will have on the existing residents’ enjoyment of their property and/or community; assuming that change is inevitable. In this context the magnitude of difference may serve as an indicator of impact.

The Tribunal also agrees with the submissions of the Applicant’s counsel, that arguments made in objection to the settlement proposal essentially boil down to Mr. Baldesarra’s “likes” and “don’t likes”, improperly seeking to elevate the private interests of one neighbourhood resident above broader public policy objectives and the public interest, as represented by the City which supports the settlement and, to some degree, the MVCA which does not oppose the settlement and acts as the collective voice of numerous residents throughout the community, including a number of the Participants.

67The Tribunal accepted Mr. Guetter’s opinion that the proposal achieves compatibility with the broader neighbourhood and the Baldesarra property and does not result in an inappropriate planning relationship with that property and further accepted his opinion that the proposal conforms with the MOP, including but not limited to those policies which speak to: protecting quality of life for existing residents; protecting respecting and conserving the character, scale, massing and identity of the surrounding community; appropriate transitions in use, built form, density and scale; and respect for existing and future lotting patterns. In addition, Ms. Sterling’s uncontested evidence in relation to matters of traffic and transportation planning was wholly accepted, satisfying the Tribunal that the proposed development will not result in unacceptable adverse traffic impacts for the neighbourhood in general or for the Baldesarra property in terms of access now or in the future.

68Overall, the Tribunal finds the proposal is representative of good planning in the public interest; has appropriate regard for the matters of Provincial interest in s. 2 and for the relevant criteria set out in s. 51(24) of the Planning Act; is consistent with the PPS; conforms with the GP, the ROP and the MOP; and finds the draft implementing conditions are reasonable and appropriate for the development proposed.

INTERIM ORDER

69The Tribunal orders that the appeals pursuant to s. 34(11) and s. 51(34) of the Planning Act are allowed, in part. The proposed Zoning By-law Amendment and Draft Plan of Subdivision, subject to implementing conditions, are approved in principle and generally in accordance with the drafts submitted as Exhibits 8A, B, and C to the proceeding.

70Within 90 days of the issuance of this Order, the City and the Applicant shall submit either: copies of the draft instruments and implementing conditions for the Tribunal’s review and approval, or provide a written status update to the Case Coordinator regarding the timing of expected submission of same.

71The Final Order is withheld subject to the foregoing. This Member will remain seized for the purposes of issuing the Final Order, and may be spoken to should issues arise with respect to the implementation of this Interim Order.

“S. Braun”

S. Braun 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.

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.
2. 2R.S.O. 1990, c. O. 18, as amended.