Consulate Developments (Ontario) Inc. v. Collingwood (Town), 2023 CanLII 69380

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 25, 2023

CASE NO(S).: OLT-21-001360

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

Applicant and Appellant: Consulate Developments (Ontario) Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a residential plan of subdivision with a maximum of 655 dwelling units

Reference Number: D14818

Property Address: 11664 Highway 26

Municipality/UT: Collingwood/Simcoe

OLT Case No.: OLT-21-001360

OLT Lead Case No.: OLT-21-001360

OLT Case Name: Consulate Developments (Ontario) Inc. v. Collingwood (Town)

Heard: May 17-19, 2023

APPEARANCES:

Parties

Counsel

Consulate Developments (Ontario) Inc. (“Consulate”)

S. Snider S. Kaufman

Town of Collingwood (“Town”)

S. O’Melia

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal filed by Consulate arising from the failure of the Town to make a decision on a Zoning By-law Amendment (“ZBA”) Application (“Application”) within the prescribed timeframe pursuant to s. 34(11) of the Planning Act (“Act”). The Application affects the lands known municipally as 11664 Highway 26 (“Subject Property”).

2The Subject Property was the subject of previous Official Plan Amendment (“OPA”), Zoning By-law Amendment (“2007 ZBA”) and Draft Plan of Subdivision (“DPS”) approvals by the Tribunal (as previously constituted) in a Decision and Order issued on September 14, 2007 (“2007 Decision and Order”).

3The Application proposes to rezone a portion of the Subject Property to provide for a higher density development (“Proposed Development”), as permitted by the Town Official Plan (“TOP”) (as amended by the OPA) and comprised of a similar range of unit types permitted by the Town Zoning By-law 2010-040 (“ZBL”) (as amended by the 2007 ZBA).

4The Subject Property is generally flat and consists of open fields which were historically farmed, treed areas and wetlands. It is currently vacant and has an area of 37.17 hectares (“ha”) with 603 metres (“m”) of frontage on Highway 26 to the south, as well as frontage on Princeton Shores Boulevard (“Blvd”) and Bartlett Blvd to the east and north.

5The developable portion of the Subject Property that is subject to the Application (“Development Parcel”) is surrounded by wetlands and treed areas. Access to the Development Parcel will be from Highway 26 via a proposed private road at the location of an existing access point. There is an additional developable area on the Subject Property fronting on Highway 26 to the east of the access road, which is not subject to the Application, and which will be the subject of future development applications.

6Surrounding land uses include additional vacant land owned by Consulate to the west zoned ‘Environmental Protection’ (“EP Zone”) and ‘Rural’, existing residential developments on the south side of Highway 26 including a golf course-based subdivision, and a block of vacant land to the east zoned EP Zone. To the north, Princeton Shores Blvd and Bartlett Blvd are developed with single detached dwellings along the north side of both roads, all fronting on Georgian Bay and buffered from the Proposed Development by way of a significant wetland area on the Subject Property. Further to the southwest is the Niagara Escarpment and further to the southeast is downtown Collingwood.

PRELIMINARY MATTERS

7At the outset of the hearing, Counsel for Consulate confirmed and clarified for the Tribunal that the Official Plan Amendment appeals filed under s. 17(36) and 22(7) of the Act, related to Tribunal file number OLT-21-003148, apply to lands adjacent to the Subject Property and are not related to the hearing of this appeal.

8Counsel for Consulate requested the Tribunal to exercise its authority under s. 51(44) and 51(56.2) of the Act to amend the first condition (“Condition 1”) of the approved Conditions of Draft Plan Approval (“Conditions”) associated with the DPS approval, in the event the Tribunal were to allow the appeal and approve the ZBA. The proposed change to Condition 1 was characterized by Counsel for Consulate as a housekeeping matter related to the unit yield as set out in items j. to l. in paragraph [118].

9At the Case Management Conference (“CMC”) held on September 29, 2022, the Tribunal granted Participant status to Blue Mountain Watershed Trust Foundation (“BMWTF”). BMWTF has concerns related to the increase in density (with respect to Minutes of Settlement between BMWTF and Consulate) and the environment (in particular, as it relates to the endangered Spotted Turtle).

10Since the CMC, and ahead of the hearing, the Tribunal received further requests for Participant status from:

• Katrina Steeves, citing concerns related to the environment, water supply and treatment facilities

• James Dalziel, citing concerns related to the environment, water supply, sewage treatment and waste collection

• Lisa Wilson, citing concerns related to the environment and flooding, and

• Friends of Silver Creek (“FSC”), represented by Sharon Carr, citing concerns related to the environment, traffic and density.

11In response to a question from the Tribunal, Ms. Carr advised that FSC is not an incorporated entity. The Tribunal advised Ms. Carr that only a ‘person’ can be a Participant to a hearing and that the Tribunal’s Rules of Practice and Procedure define ‘person’ to include a corporation, but the definition does not include an unincorporated group. Ms. Carr subsequently requested Participant status for herself, in lieu of FSC.

12Although the issues identified by the Participants are more applicable to the DPS, and the Conditions appear to address these issues, the Tribunal found that the persons requesting Participant status have a genuine and direct interest in the matter and will assist the Tribunal in making its decision. Participant status was therefore granted to Ms. Steeves, Mr. Dalziel, Ms. Wilson and Ms. Carr.

13Each of the Participants submitted Participant Statements to the Tribunal, which were reviewed and considered in determining this matter.

14The Tribunal did not receive any further requests for Party or Participant status.

LEGISLATIVE FRAMEWORK

15When considering an appeal of an application to amend a zoning by-law filed pursuant to s. 34 of the Act, the Tribunal must have regard to matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

16Pursuant to s. 24(1) of the Act, the Tribunal must also be satisfied that the ZBA conforms with the Official Plan and, in this matter, that includes the County of Simcoe (“County”) Official Plan (“COP”) and the TOP.

17In consideration of the statutory requirements set out above, the Tribunal must also be satisfied that the ZBA represents good land use planning and is in the public interest.

18Section 51(56.1) of the Act provides that, if, on an appeal under s. 51(34) or (39), the Tribunal has given approval to a draft plan of subdivision, the Tribunal may, by order, provide that the final approval of the plan of subdivision is to be given by the approval authority. The 2007 Decision and Order was with respect to an appeal under s. 51(34) and it expressly conferred final approval authority of the DPS back to the approval authority in Order clause ‘8)’.

19Section 51(56.2) of the Act provides the Tribunal with the authority to change conditions of draft plan approval at any time before the approval of the final plan of subdivision is granted by the approval authority if the final approval is to be given under s. 51(56.1).

20As the approval authority has not yet granted final subdivision approval, the Tribunal therefore retains the jurisdiction to consider and grant changes to the Conditions, if deemed appropriate.

ISSUES

21The Issues List, provided on consent, includes six issues as follows, many of which relate to the provision of affordable housing (“AH”):

1. Does the proposed zoning by-law amendment include any provisions for affordable and attainable housing, and if not, should such provisions be a requirement for the approval of the proposed additional density?

2. Is the proposed zoning by-law amendment consistent with the provisions of the Provincial Policy Statement that relate to affordable housing, including without limitation policies 1.1.1 and 1.4.3?

3. Does the proposed zoning by-law amendment conform to and implement the policies of the Growth Plan for the Greater Golden Horseshoe affordable provisions of the Town of Collingwood’s Official Plan, including without limitation policies 4.3.1, 4.3.2, 4.3.2.3 and 8.13?

4. Does the proposed zoning by-law amendment conform to and implement the affordable provisions housing [sic] of the Town of Collingwood’s Official Plan, including without limitation policies 4.3.1, 4.3.2, and 4.3.2.3 and 8.13?

5. Does the proposed zoning by-law amendment create or exacerbate any environmental issues or concerns that have not been adequately addressed, assessed and mitigated?

6. In the context of these issues, does the proposed zoning by-law amendment constitute good land use planning?

22In advance of the hearing, the Parties were able to scope the Issues List somewhat with the elimination of Issue 3 and the elimination of the reference to policy 8.13 in Issue 4, as indicated by the text crossed out in paragraph [21]. Issue 5, regarding the environment, remained on the IL mainly with respect to the concerns raised in the Participant statements but was not a contested issue between the Parties and the Town did not call a witness to challenge the testimony of Consulate’s environmental witness. In this respect, the Issues centred around AH and whether the ZBA, in the context of the AH issue, represents good land use planning.

EVIDENCE

23The Tribunal qualified Colin Travis, on consent, to provide opinion evidence in the field of land use planning and urban design.

24The Tribunal qualified Jim Broadfoot, on consent, to provide opinion evidence in the field of terrestrial ecology. Mr. Broadfoot’s evidence was uncontested.

25The Tribunal qualified James Dyment, on consent, to provide opinion evidence in the field of land use planning.

Non-opinion Evidence

26Mr. Travis provided the Tribunal with a non-opinion overview of the Subject Property, the 2007 Decision and Order, the Application, the existing TOP designation and ZBL restrictions, and the background related to the Appeal.

Town of Collingwood Official Plan

27The TOP designates the Subject Property ‘Residential’ and ‘Environmental Protection’ (“EP”) on Schedule ‘A’ – Land Use Plan. Schedule ‘C’ – Residential Density further designates the Development Parcel as ‘Medium Density’ (and the additional developable area fronting on Highway 26 as ‘High Density’).

28The Medium Density designation permits “single-detached dwellings, semi-detached dwellings, duplex dwellings, fourplexes, triplexes, townhouses, apartments, student dormitories and boarding homes” within a density range from 20 dwelling units per gross hectare (“u/ha”) to a maximum of 55 u/ha. The EP designation surrounds the Development Parcel and Schedule B to the TOP further designates the EP designated lands as ‘Category 1 Wetlands’ and ‘Category 1 Woodlands’.

Town of Collingwood Zoning By-law

29The ZBL zones the Development Parcel ‘Residential Third Density’ (“R3”) in four exception zones, permitting a total maximum of 328 dwelling units as follows:

• Residential Third Density Exception Five (R3-5) Zone permitting “single detached dwellings, semi-detached dwellings, and duplex dwellings” with a total of 71 dwelling units permitted;

• Residential Third Density Exception Twelve (R3-12) Zone permitting “townhouse dwellings and group or cluster dwellings” with a total of 95 dwelling units permitted;

• Residential Third Density Exception Twenty-three (R3-23) Zone permitting “apartment dwellings or group or cluster dwellings” with a total of 54 dwelling units permitted;

• Residential Third Density Exception Twenty-four (R3-24) Zone permitting “apartment dwellings, townhouse dwellings and group or cluster dwellings” with a total of 108 dwelling units permitted;

30The Development Parcel totals 11.92 ha and, with a maximum of 328 units, allows for a density of 27.5 u/ha, which is within the permitted density range of the TOP.

31The remainder of the Subject Property is zoned EP Zone in six exception zones, a ‘Recreation’ exception zone, and ‘Deferred Residential’ (fronting on Highway 26) in two exception zones, neither of which permit any dwelling units.

The Application

32Mr. Travis briefly reviewed the processing of the Application from the time of the pre-consultation meeting in 2017, the submission of the Application in 2018, the technical review of the Application by the Town and commenting agencies, the public meeting in 2019, and the resulting revised submission later in 2019. He advised that the Town did not further process the Application, nor bring it forward for Town Council consideration, and the appeal was filed in 2021.

33The Application was filed with the Town on August 9, 2018 and sought to amend the ZBL, with respect to the areas currently zoned by the four R3 exception zones, in order to:

• collapse the four R3 exception zones into one R3 exception zone,

• increase the number of permitted dwelling units from 328 to 655 in accordance with the TOP density limits,

• allow single detached, semi-detached, townhouse, group or cluster dwellings and one apartment building, and

• permit specific zoning provisions applicable to the apartment use to address setbacks and height permissions.

34The ZBA amends the proposal to also permit and define ‘back-to-back townhouses’ and ‘stacked townhouses’, as well as to permit ‘apartment buildings’, as opposed to ‘one apartment building’.

35The Application also sought a related amendment to Condition 1 of the approved Conditions to reflect the updated number of permitted dwelling types resulting from the ZBA. This is further addressed starting at paragraph [117].

36The Application was deemed complete as of October 16, 2018 supported by a Planning Justification Report, a Scoped Environmental Impact Study, a Vegetation Monitoring, Floristic Composition and Structure study, a Functional Servicing and Stormwater Management Report Update, and a Traffic Impact Study Update.

37The Application, supported with a ‘Development Concept Plan’ (“Concept Plan”), was subject to a technical review on November 29, 2018, resulting in comments from the Town Planning Department limited to confirming the existing TOP and ZBL provisions and advising that any changes to the Conditions prior to rezoning would be premature. Mr. Travis noted that the comments did not raise concerns related to the proposed density or AH.

38A public meeting was held on March 25, 2019, after which Consulate prepared a revised Concept Plan with a revision date of July 26, 2007 (“Revised Concept Plan”) to address comments from Town Council, the public and Town staff. Mr. Travis noted that the Revised Concept Plan was favourably reviewed by the Town Planning Director and Senior Planner in November 2019.

39Mr. Travis stated that Consulate then appealed the Application in August 2021 due to the failure of the Town to make a decision, thus ending the processing of the Application by the Town.

Environmental Evidence

40Mr. Broadfoot advised the Tribunal that he undertook an update of the existing conditions of the Subject Property, reviewed the changes to the zoning proposed in the ZBA and completed an Environmental Impact Study (“EIS”) Addendum report dated March 24, 2023 (“2023 EIS”) to the original EIS report undertaken in 2007 (“2007 EIS”).

41Mr. Broadfoot opined that, from a site-specific perspective, since there would be no changes to the footprint of what he referred to as ‘Block 1’, which corresponds with the boundaries of the Development Parcel, and based on the nature of the soils on the developable portion of the property, there would be no resulting direct or indirect negative impacts on the hydrology of the adjacent wetlands (including groundwater and surface water infiltration and discharge) as a result of the development of Development Parcel if the ZBA were approved.

42From a regional groundwater perspective, Mr. Broadfoot noted that the soils of the Development Parcel are relatively impermeable compared to the surrounding wetland areas, so that the groundwater flowing northward from the Niagara Escarpment flows around the Development Parcel through the permeable wetland areas and eventually out to Georgian Bay to the north.

43Mr. Broadfoot concluded that the introduction of impervious surfaces, such as roofs, parking areas and roads, within the Development Parcel would not have an indirect impact on the groundwater resources of the wetlands.

44With respect to stormwater, from a site-specific perspective and more broadly, Mr. Broadfoot advised the Tribunal that there is an existing drainage ditch on the west side of the Development Parcel and that the planned upgrades to the ditch, to move water under flood conditions out to Georgian Bay, would result in the flow paths of stormwater post-development of the Development Parcel to emulate existing conditions. He further advised that the upgrades would also alleviate existing flooding issues on Bartlett Blvd.

45Mr. Broadfoot indicated that the wetlands are subject to a wet/dry cycle. The established vegetation prefers such conditions, and it is for this reason that the wet/dry cycle will be maintained through the surface water management regime proposed through the development of the Development Parcel. Mr. Broadfoot concluded that the surface water runoff would not result in any negative impact to the composition, structure, or function of the adjacent wetlands.

46With respect to his findings, Mr. Broadfoot advised the Tribunal that the Town’s peer review consultant, Natural Resources Solutions Inc. (“NRSI”), is in agreement with his evaluation of the potential impacts to the wetlands. With respect to Issue 5 on the Issues List included in the Procedural Order, whether the proposed ZBA would “create or exacerbate any environmental issues or concerns that have not been adequately addressed, assessed and mitigated”, Mr. Broadfoot advised that, as per the Statement of Agreed Facts, there was general agreement with the methods, analysis and conclusions in the materials subject to NRSI requesting “clarification of whether the change in density proposed would alter the conclusions of previous studies regarding the potential for impact to hydrology of adjacent wetlands.”

47Mr. Broadfoot confirmed that, following its review of the 2023 EIS addressing Issue 5, NRSI agreed with the conclusions of the report, that the change in density would not alter the conclusions of previous studies regarding the potential for impact to hydrology of adjacent wetlands. Further, NRSI agreed that the ZBA would not create or exacerbate any environmental issues or concerns that have not been adequately addressed, assessed and mitigated.

48With respect to the issues identified by the Participants, Mr. Broadfoot addressed them as follows:

• Impacts on the Spotted Turtle – it is Mr. Broadfoot’s opinion that the wetlands in the area of Bartlett Blvd are not a bonafide habitat of the Spotted Turtle. A 2019 report on a juvenile Spotted Turtle observed on Bartlett Blvd. and authored by Mr. Broadfoot determined that the citing was likely due to ‘juvenile dispersal’ and not that the wetlands in the vicinity of Bartlett Blvd represent habitat that would be protected. The Ministry of the Environment, Conservation and Parks (“MECP”) advised that “the development footprint itself would not be considered habitat for Spotted Turtle” and that the Proposed Development does not alter the requirements for Spotted Turtle mitigation.

Mr. Broadfoot stated that it is a requirement to satisfy MECP with respect to mitigation measures for the potential for impact during and after construction consistent with the requirements of the Endangered Species Act, including the installation of ‘turtle exclusion fencing’ which is a common mitigation measure to prevent turtles from accessing areas of potential harm.

Mr. Broadfoot noted in his witness statement that consultation is ongoing with the MECP to provide additional information with respect to mitigation measures that will be implemented to ensure no impacts to the Spotted Turtle.

• Indirect impacts on rare/significant natural features or their ecological functions (wetland boundaries) – Further to paragraphs [41] to [47], Mr. Broadfoot noted that the wetland boundary was informed by input from the Ministry of Natural Resources and Forestry (“MNRF”) and staked in the field. He further noted that specifics of the wetland vegetation communities adjacent to the Development Parcel were documented at the time of the original approval delineating the boundary of the development and that it was vetted by the Nottawasaga Valley Conservation Authority (“NVCA”) and MNRF. Additionally, from an environmental perspective, the approach to stormwater and flood management were deemed not impactful to the adjacent wetland communities.

In his witness statement, Mr. Broadfoot added that, based on the 2007 EIS and the 2023 EIS, the “increase in residential density associated with the proposed Bridgewater [Consulate] development does not affect the hydrology of [the] wetlands”.

• Encroachment (of people into the wetlands) – Mr. Broadfoot advised that the Conditions requires fencing along the boundaries of the Development Parcel limiting access to the wetlands to the north, east and south. He added that there will be no avenue for people to get into the wetland areas, as the Greenland channel will entail infrastructure to deter people from entering the wetlands or woodlands, all access roads from Highway 26 are gated, the lands are posted for no trespassing and there will be no official trail network associated with the development. In this respect, it is Mr. Broadfoot’s opinion that the Proposed Development includes many elements to control encroachment, any encroachment would be by way of unauthorized access, and that higher levels of encroachment are not expected due to the increase in density on the Development Parcel.

• Tree removal – impact on deer habitat– Mr. Broadfoot stated that trees were removed within the Development Parcel in 2013 under a ‘Permit to Destroy Trees’ issued by the Town and pursuant to a Tree Inventory and Assessment report. Mr. Broadfoot added that the area of tree removal was approximately less than a hectare and was an area that was historically farmed. The tree clearing related to the removal of successional trees at the edge of fallow farmland and scattered trees internal to the Development Parcel and, as most of the deer habitat is not on the developable areas of the Subject Property, the tree removal wouldn’t have resulted in diminished deer habitat.

• Impacts on Silver Creek and surrounding wetlands – Mr. Broadfoot advised that Silver Creek is located more than 300 m west of the Development Parcel, and that the development of the Development Parcel will not contribute to any additional impacts on Silver Creek or the surrounding wetlands known as the ‘Silver Creek Provincially Significant Wetland Complex’. He added that the wetland complex was delineated by, and extensively well studied through, the 2007 EIS and subsequent 2023 EIS. Additionally, his witness statement specifies that no aspects of the area approved for development involve alterations to Silver Creek or waters contributing to Silver Creek.

• Limits of development – Mr. Broadfoot reiterated that the boundaries approved for the Development Parcel remain the same, and that the limits of development include setbacks to the boundaries established to the adjacent wetlands. He stated that he has no particular concerns related to encroachment post development as fencing is required, or during construction as standard protocol is required to be followed including sediment and erosion controls.

• Effects increase in traffic and density on current water flow in wetlands –Mr. Broadfoot reiterated that he evaluated the potential for indirect impacts to wetland hydrology based on both groundwater and surface water influences and the engineering solutions to mediate flooding on Bartlett Blvd, Princeton Shores Blvd and Highway 26 and found that the wet/dry cycle of the wetland communities would be maintained.

49It was Mr. Broadfoot’s overall uncontested opinion and conclusion that:

• the change in density proposed for the Development Parcel does not alter the conclusions of the two EISs, being that the development of the Development Parcel does not impact the ecological integrity of the adjacent wetlands,

• with the application of best management practices applied for the protection of Spotted Turtle, the potential for ‘kill/harm/harassment’ of Spotted Turtle can be mitigated to the satisfaction of MECP, and

• the proposed ZBA does not create or exacerbate any environmental issues or concerns that have not been adequately addressed, assessed and mitigated.

Planning Evidence

50Mr. Travis stated that the Parties agree that the site is appropriate for intensification but that the emerging issue is related to providing for the opportunity for AH through controlling the maximum unit size for a certain number of units. He qualified his statement by adding that the issue of AH was not raised by the Town throughout the review and processing of the Application and that it was only raised in January 2023 by way of being added by the Town to the Issues List.

51Mr. Dyment opined that, as a condition for permitting a significant increase in density, “the Tribunal should incorporate elements into the proposed Zoning By-law Amendment that will seek to address the affordable/attainable housing issue”. He provided a focused account of the issue related to the provision of attainable housing and he premised his evidence by opining that the Town is not seeking AH for lower income households as, in his opinion, such AH can’t be provided by the private sector.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

Mr. Travis’ Submissions

52With respect to the policy and regulatory context, Mr. Travis opined that the ZBA has regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, and in particular:

• the protection of ecological systems, including natural areas, features and functions, and the conservation and management of natural resources and the mineral resource base – as the environment is protected through the EP zoning and through the Conditions;

• the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest – as an archaeological assessment is required through the Conditions;

• the supply, efficient use and conservation of energy and water, and the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems, and the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians – as the development is of a compact urban form;

• the orderly development of safe and healthy communities, and the appropriate location of growth and development – as the TOP provides for a distribution of land uses throughout the Town and the Development Parcel is designated for the proposed use and density;

• the adequate provision and distribution of educational, health, social, cultural and recreational facilities – as the Conditions address the matter of schools;

• the adequate provision of a full range of housing, including affordable housing – as the ZBA does not specifically provide for AH, but does provide for a range of housing forms;

• the protection of public health and safety – as the Conditions require detailed engineering studies related to the provision of roads suitable for fire and ambulance services.

Mr. Dyment’s Submissions

53Mr. Dyment advised that he agreed with the submissions of Mr. Travis that the ZBA has regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, other than with respect to “the adequate provision of a full range of housing, including affordable housing”. In his opinion, the act of ‘providing’ equates to ‘delivering’ and that the only way to deliver AH is through zoning.

Affordable Housing / Issue 1

Mr. Dyment’s Submissions

54Mr. Dyment referred the Tribunal to the definition of ‘affordable’ in the PPS for home ownership as follows:

Affordable: means

a) in the case of ownership housing, the least expensive of:

1. housing for which the purchase price results in annual accommodation costs which do not exceed 30 percent of gross annual household income for low and moderate income households; or

2. housing for which the purchase price is at least 10 percent below the average purchase price of a resale unit in the regional market area;

55Although Mr. Dyment seemed well versed in the distinction between ‘AH’ and ‘attainable housing’, as is the Tribunal, the terms were used interchangeably throughout the hearing as the reference in the policy documents is mainly to ‘AH’. It is the Tribunal’s understanding however, that the Town is targeting ‘attainable housing’ for inclusion in the Proposed Development. For ease of reference, ‘AH’ will be referenced throughout this decision except where the distinction requires both terms.

56Referencing the Town’s Affordable Housing Consulting Services – Needs Assessment October 2021 (“AH Needs Assessment”), Mr. Dyment found it unreasonable to expect Consulate to provide AH to the ‘Low Income 3rd Decile Group’ with an affordable purchase price threshold of $189,635 (which assumes 30 percent of gross income is available for accommodation costs). Rather, he found it reasonable to expect Consulate to provide AH to the ‘Moderate Income 6th Decile Group’ with an affordable purchase price threshold of $390,981 (with the same assumption).

57Rounding the affordable purchase price threshold to $400,000, Mr. Dyment proffered that the ZBA should have provisions built into it to ensure AH is provided for in the Proposed Development. In his opinion, an effective method to ensure the provision of AH in this instance to is to limit the unit size of 60 units, representing approximately 20 percent of the additional units proposed to be allowed through the ZBA. He proposed that the maximum unit size for these 60 units be limited to 600 square feet (“sq ft”).

58Mr. Dyment explained his methodology in arriving at the 600 sq ft maximum unit size by referencing an analysis he undertook of the Multiple Listing Service (“MLS”) listings for Collingwood as of March 2023, as below:

MLS Listings for Collingwood Mar-23

Address Size (sq ft) Price Cost /sq ft*

204 Anchorage 700 $ 628,000.00 $ 897.14

41 Silver Glen 1200 $ 780,000.00 $ 650.00

2 Brandy Lane 1000 $ 650,000.00 $ 650.00

208 Anchorage 1200 $ 864,000.00 $ 720.00

308 Anchorage 900 $ 665,000.00 $ 738.89

4 Dawson 500 $ 329,000.00 $ 658.00

• Based on MLS Listing

59Mr. Dyment focused on the last listing for ‘4 Dawson’, being a 500 sq ft unit listed for $329,000.00. Based on this inventory, Mr. Dyment concluded that, in order to “bring attainable units into the marketplace at about $400,000 it would be necessary, in [his] opinion, to build units that are 600 sq ft or less”. Other than the reference to the 500 sq ft listing, he did not provide any further basis for arriving at the 600 sq ft unit size as the proposed maximum unit size to attain AH.

60Mr. Dyment opined that it is reasonable to require 60 units to be attainable to the lower 60 percent of income earners in the Town, with a target market rate of approximately $400,000. His means to attaining this through limiting the unit size is due to him being “unaware of other means that the Tribunal can utilize to ensure that a housing mix that includes attainable housing will be produced as part of the development”. He opined that requiring 60 units would be reasonable as it represents approximately 10 percent of the total unit count to be permitted through the ZBA which reflects the County’s target of a minimum of 10 percent of new housing units created each year be affordable. He further acknowledged that he is not a land economist but felt confident that limiting the unit size is the best way to ensure AH is provided.

61Mr. Dyment proffered that there is a current and growing need for AH throughout the province. In his opinion, “as a condition for permitting a significant increase in density on the subject lands, the Tribunal should incorporate elements into the proposed Zoning By-law Amendment that will seek to address the affordable/attainable housing issue”.

Mr. Travis’ Submissions

62Mr. Travis noted that requiring 20 percent of the additional units to be AH is not TOP policy, and that there is no evidence or policy that leads to a conclusion that any percentage is an appropriate amount. He continued that there is no in-depth economic analysis offered by the Town supporting the opinion of Mr. Dyment that a 600 sq ft unit can be brought to market at a price of $400,000, and that this assertion “is based on very generalized observations on a limited range of considerations in assessing a potential selling price”. He opined that it would be reasonable to expect that a qualified land economist would need to undertake this analysis.

63Mr. Travis acknowledged that the Town’s Affordable Housing Task Force submitted a summary report to Council in November 2021 with several recommendations with regard to the TOP and ZBL, but noted that none of the recommendations “proposed the imposition of a prescribed proportion of a residential development proposal to be allocated for attainable or affordable housing, or a maximum unit size or what a dwelling unit should sell for”. He proffered that the Town is currently in the process of establishing targets and policies for AH and attainable housing but that the TOP policies are not drafted or in place.

64Mr. Travis proffered that the ZBA does not contain any specific provisions for AH or attainable housing. He opined that there should not be a requirement for the provision of AH or attainable housing as the Town does not have policies in the TOP requiring AH and that therefore, a planning policy framework within which to implement such a requirement is lacking. He further noted that the Town did not identify the need for AH or attainable housing to be considered in the ZBA throughout the processing of the application and the Development Parcel is not in close proximity to shopping or community facilities as addressed in policy 4.3.2.3.5 of the TOP.

65Mr. Travis further distinguished AH from attainable housing, describing the latter as “the ability of households to enter and graduate to successively higher levels of the local housing market” and opined that, implicit to attainable housing, is the provision of a range of housing options, including type, size, tenure and cost. He opined that the ZBA “can be viewed as a means of adding more homes to the market and more choice of dwelling types and ranges to the market. Therefore, approving the subject application assists in improving overall attainable housing opportunities”.

PPS / Issue 2

Mr. Travis’ Submissions

66In consideration of the PPS, Mr. Travis opined that the Proposed Development is consistent with the PPS, in particular the policies relating to building strong and healthy communities, including 1.1.1b), 1.1.3.2a), 1.1.3.6, 1.4.1 and 1.4.3.

67PPS policy 1.1.1b) addresses “accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons)” and Mr. Travis opined that this policy is to be taken as a Town-wide policy and not to be applied on a site-specific basis. He proffered that the Proposed Development provides a range of market-based dwelling types, including apartment and townhouse units, thereby contributing to a range of housing types to the overall municipal housing stock. In this respect, he opined that the development would have the ability to provide an “appropriate affordable and market-based range” of housing and would meet this PPS policy objective.

68Mr. Travis opined that the Proposed Development meets PPS policy 1.1.3.2a) which requires land use patters within settlement areas to be based on densities and a mix of land uses which efficiently use land and resources. In his opinion, by increasing the number of units, the proposed ZBA will “allow for a more efficient development utilizing surrounding existing infrastructure while supporting active transportation”.

69Policy 1.1.3.6 directs that new development in designated growth areas “should have a compact form, mix of uses and densities that allow for the efficient use of land, infrastructure and public service facilities”. Mr. Travis stated that the Subject Property is located in a designated growth area and the proposed ZBA would enable an increase in the number of dwelling units in a compact urban form on full municipal services.

70Policy 1.4.1 provides policy direction for an appropriate range and mix of housing options and densities to meet projected requirements of current and future residents of the regional market area. In Mr. Travis’ opinion, the proposed ZBA would enable a range of housing forms and mix of unit types that would add to housing options in the Town and surrounding area.

71Policy 1.4.3 directs planning authorities to provide for an appropriate range and mix of housing options and densities to meet projected market-based and AH needs of the regional market area. Mr. Travis noted that, among other matters, this policy allows for planning authorities to permit and facilitate all housing options and all types of residential intensification while promoting densities for new housing that efficiently use land and resources on a Town-wide basis. It was his opinion that the TOP permits the proposed additional residential density, a range of dwelling types and housing options proposed by the ZBA.

72It was Mr. Travis’ further opinion that, although the Town has embarked on the process to establish minimum targets for the provision of AH on a Town-wide basis as required by Policy 1.4.3a), the Official Plan policies in that regard are not yet in place and therefore, the requirement to provide a limit to the size of some of the units in the ZBA in order to attempt to provide AH is inappropriate at this time.

73Mr. Travis’ opined that the proposed ZBA is consistent with the AH provisions of the PPS as it would enable development that can contribute a market-based range of housing to the overall municipal housing stock. With the mix including apartment and townhouse dwelling types, it was his opinion that the development would have the ability to provide an “appropriate affordable and market-based range” of housing.

Mr. Dyment’s Submissions

74Mr. Dyment addressed policy 4.6 that states that the “official plan is the most important vehicle for implementation” of the PPS, and that Part III states that the PPS represents minimum standards and that the Town can go beyond the PPS standards.

75Mr. Dyment referred the Tribunal to policy 1.4.3 of the PPS which states that planning authorities “shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs” by “establishing and implementing minimum targets for the provision of housing which is affordable to low and moderate income households and which aligns with applicable housing and homelessness plans”. Mr. Dyment referenced the AH Needs Assessmentas being the Town’s adopted “Housing and Homelessness Plan”.

76Mr. Dyment opined that, to be consistent with the PPS, “the intensification of the current approved development should ensure that affordable housing is produced on this site”. Further, in his opinion, the use of the term “shall” in policy 1.4.3 “compels the OLT to include a provision for affordable housing in the proposed Zoning By-law”.

Growth Plan

77It is Mr. Travis’ opinion that the Proposed Development conforms with the Growth Plan, as the Growth Plan designates the Town as a ‘Primary Settlement Area’ where future growth is to be focused. He proffered that the guiding principles in Section 1.2.1 of the Growth Plan include prioritizing intensification and higher densities, the efficient use of land and infrastructure and the provision of a range and mix of housing types. As the Subject Property is within the settlement area, it is his opinion that the ZBA would be consistent with the direction of the Growth Plan in this respect.

78Mr. Travis noted that conformity to the Growth Plan is not an issue that is in question between the Parties and is not on the IL.

COP

79Mr. Travis opined that the ZBA conforms to the COP, as the Subject Property is within the ‘Collingwood Settlement Area’ designation in the COP in an area with full municipal services, and Sections 3.2.3 and 3.2.4 of the COP directs that a significant portion of growth is to be directed to settlement areas with municipal services.

80Mr. Travis noted that conformity to the COP is not an issue that is in question between the Parties and is not on the IL.

TOP / Issue 4

Mr. Travis’ Submissions

81Mr. Travis advised that the ZBA would meet the maximum density of 55 u/ha permitted in the Medium Density Residential designation and would provide for a range of dwelling types permitted by the designation. Mr. Travis opined that the ZBA conforms to the TOP in terms of density and dwelling types as well as in terms of the TOP general principles and specific policies related to residential development and AH.

82Specifically, Mr. Travis noted that the ZBA conforms to Section 4.3.1 which sets out general principles to be considered in the development of residential areas. He noted that the general principles speak to a Complete Community consisting of efficient and compact urban forms that are compatible with, and enhance existing development, provide for neighbourhoods that are vibrant and viable, address peoples needs by having residential development meet the various demographic and socio-economic needs and encourage housing forms, densities and locations which are affordable to lower and moderate-income households. It is his opinion that the ZBA would enable a comprehensively well designed and coordinated development of a neighbourhood providing a range of dwelling types and housing options.

83Mr. Travis further opined that the ZBA conforms to Section 4.3.2 which provides residential intensification policies. He proffered that the ZBA proposes additional density to be achieved through a variety of dwelling types within a compact urban form and constitutes intensification as permitted in the TOP.

84Regarding Mr. Dyment’s opinion stated in his witness statement that the TOP includes sufficient policies in place to require AH be provided through the ZBA, Mr. Travis noted that the AH Needs Assessment is not complete and is only the first step in addressing the needs. The next step is a separate document referenced as a ‘Strategy Development’ (“AH Strategy Development”) to “[a]ssist… in reviewing potential policy and procedure recommendations that facilitate [the] creation of affordable housing and identifying planning policy best practices that may not have been considered in the current Official Plan review process…”. Mr. Travis proffered that the Town has not yet taken the next step and that there are no approved TOP policies directing AH to be required through zoning, by limiting unit sizes or by any other means.

85Mr. Travis spoke to the AH policies in the TOP contained in Section 4.3.2.3. He stated that the policies support the County’s target of 10 percent of new housing units across the County to be affordable. He noted that the County responded to the ZBA application and “did not identify affordable housing as a matter to be considered, or how or if the subject lands can or should contribute to the target”. Further, he added that “[t]hroughout the four-year development review process, the Town did not identify affordable housing as a specific need or target on the subject lands”.

86Mr. Travis added that policy 4.3.2.3.1 is a permissive policy that permits and encourages AH throughout the Town and policy 4.3.2.3.5 provides for particular consideration to be given to the location of AH in close proximity to shopping or community facilities and public transit. In his opinion, the Development Parcel is “situated in the western node of the municipality and not in proximity to the main shopping and community facility locations”. On cross-examination, Mr. Travis conceded that there is public transit on Highway 26 in the vicinity of the Subject Property but qualified that, in his opinion, the transit stop locations are not in close proximity to the Development Parcel and the bus schedule is hourly and therefore not considered frequent.

87It was Mr. Travis’ opinion that the proposed ZBA conforms to and implements the AH provisions of the TOP. He stated that both the County and the Town did not identify AH as a matter to be considered through the processing of the Application, and the TOP policies permit AH as part of a development proposal but do not require it to be provided as part of every development proposal. He added that the TOP policies acknowledge preferred locations for AH but it was his opinion that the Subject Property is not considered a preferred location. It is his opinion that the ZBA conforms to the TOP.

Mr. Dyment’s Submissions

88Mr. Dyment addressed the goals and objectives in section 4.3.1 related to housing and ensuring, among other things, “residential development which is consistent with the demographic characteristics and socio-economic needs of the Town’s present and future residents” and to provide “a range and mix of attractive housing types, sizes, tenures and locations that have good urban design, accessibility and enhance Collingwood’s small-town character”. It is his opinion that these policies recognize the need to provide for housing for lower- and middle-income households in the Town in order to meet the needs of the community. He further opined that ‘ensuring’ is mandatory language and that the only way to ensure the provision of AH is through zoning.

89Addressing Mr. Travis’ statement that the TOP policies are not yet in place to require AH, Mr. Dyment disagreed and drew attention to policy 4.3.2.3.6 which “shall apply in relation to all new residential development” and reads as follows:

Consideration will be given to modifications to existing zoning and servicing standards that facilitate the provision of affordable housing units in new residential developments where such revisions are consistent with the intent of the Official Plan, and are in accordance with good planning and engineering principles.

It is Mr. Dyment’s opinion that the TOP wording “requires the Town and now the Tribunal to consider modifications to existing zoning in order to provide affordable housing” and that the ZBA “enables the Town to reconsider the existing zoning to implement the current Official Plan policies”.

90Mr. Dyment proffered that intensification has been shown to provide opportunities for AH and that this concept is emphasized in policy 4.3.2.3.4, which provides for the potential of density in excess of applicable density ranges for residential intensification initiatives on arterial and collector roads with a significant affordable housing component.

91Mr. Dyment opined that, although an exception to the density permissions in the TOP is not required and the “proposal is generally in conformity” with the policies on residential intensification, “to meet to Towns [sic] objectives related to affordable housing, and a range and mix of housing to meet the demographic needs”, “some attainable, if not affordable housing, should be required in the development”.

Environment / Issue 5

92Mr. Travis relied on the submissions of Mr. Broadfoot in this regard, (who concluded that the ZBL does not create or exacerbate any environmental issues or concerns that have not been adequately addressed, assessed and mitigated) and concluded that, in terms of land use, the ZBA does not change existing EP zone boundaries or zoning provisions.

93Mr. Broadfoot’s testimony was uncontroverted and laid clear that the development of the Development Parcel as modified by the ZBA would not impact the environment beyond what was anticipated with the 2007 ZBA and that the mitigation measures were sufficient to protect the environment.

Holding Symbol / Phasing

Mr. Dyment’s Submissions

94In recognition of the existing servicing limitations in the Town, Mr. Dyment opined that a holding provision should be included in the ZBA for the additional units, with a caveat to recognize the existing zoning permissions for 328 of the dwelling units which would not be subject to the hold.

95In addition, Mr. Dyment opined that the development should be phased in recognition of the provisions of the criteria in TOP policy 4.3.2.1.2 related to the consideration for opportunities for residential intensification, including ‘capacity and availability of municipal water and wastewater servicing’ to “ensure that lots or blocks are not developed or sold without the purchaser fully understanding the servicing constraints that are in place”.

96Mr. Dyment added that the ZBA would permit a large-scale development outside of the Built Boundary without consideration of the impact on the Town’s Growth Management Strategy, which included directing 40 percent of new residential growth to within the Built Boundary. He felt that phasing would ensure that the Town’s Growth Management Strategy objectives would be met.

Mr. Travis’ Submissions

97In response to Mr. Dyment’s recommendation for a holding symbol and phasing of the subdivision, both related to the Town’s water supply capacity issue, Mr. Travis proffered that the servicing and phasing considerations are to be addressed through a subdivision agreement as stipulated in the Conditions and that the only applicable holding provision would be the requirement for the execution of the subdivision agreement.

98With respect to Mr. Dyment’s suggestion that phasing is required in order to meet the Town’s objective of directing 40 percent of new residential growth to within the Built Boundary, Mr. Travis proffered that the Development Parcel is designated for residential development, that designated land is considered in the Growth Management Strategy. and that the ZBA does not preclude the Town from meeting its Growth Management Strategy.

Participant Statements

99Mr. Travis advised the Tribunal that he reviewed all of the Participant statements and, addressing each issue, he stated that:

• the ZBA does not change the existing EP zone boundaries and applies only to the area zoned for development through 2007 ZBA, that the Conditions require the lands zoned EP to be conveyed to the Town and mitigation measures to the satisfaction of the Town and NVCA (including fencing), and that, as confirmed by Mr. Broadfoot, the ZBA does not impact the environment;

• several studies were required to address specific impacts, such as traffic and the environment and that the EIS studies require mitigation measures which are accounted for in the ZBA and the Conditions;

• the water treatment supply issue is being addressed through a development review and allocation program; and

• the need to upgrade sewer services was identified with the result that the DPS provides a separate Block to be conveyed to the Town to assist in sewage pump facility planning.

ZBA / Issue 5

Mr. Travis’ Submissions

100Mr. Travis concluded that it is his professional opinion that the proposed ZBA instrument, drafted by him and submitted as an appendix to his witness statement, is consistent with the PPS, conforms to the Growth Plan, the COP and the TOP, is good land use planning and should be approved.

101In addition, Mr. Travis opined that proposed change to Condition 1 is minor and is required in order to reflect the number of units resulting from the ZBA.

Mr. Dyment’s Submissions

102Mr. Dyment concluded that it is his professional opinion that the proposed ZBA instrument, drafted by him and submitted as an attachment to his witness statement, would significantly address the issues raised and represents good planning.

ANALYSIS AND FINDINGS

Zoning By-law Amendment

103This hearing was a one issue matter, that of the provision of AH. The increase in density is permitted in the TOP and the Town is not opposed to the ZBA as long as AH is required as a component part. It boils down to whether the planning policy documents compel the provision of AH in the Proposed Development, and if so, whether the method employed by the Town to determine how to provide it is sound, reasonable and represents good land use planning.

104The location of AH should ideally be in areas with nearby community services and commercial developments, and the locations should be determined through the equitable application of official plan policy that has been evaluated through appropriate studies and processes, including public meetings, and as approved by the municipality.

105The Tribunal agrees with Mr. Travis that the ZBA has regard to the applicable matters of provincial interest pursuant to s. 2 of the Act. Mr. Dyment agreed with Mr. Travis with the exception of it having regard to “the adequate provision of a full range of housing, including affordable housing”. Mr. Dyment opined that ‘providing’ equates to ‘delivering’ and that the only way to deliver AH is through zoning. The Tribunal agrees with the principle of ‘providing’ equating to ‘delivering’, but disagrees with the conclusion that AH can only be delivered through zoning and finds it a narrow interpretation of a broad matter of provincial interest.

106The Tribunal agrees with Mr. Travis and finds that the ZBA is consistent with the PPS. With respect to Mr. Dyment’s assertion that the wording of PPS policy 1.4.3 compels the OLT to include a provision for AH in the ZBA, the Tribunal is not persuaded that this policy requires the provision of AH on a site-specific basis, especially since this policy is based on a ‘regional market area’, which is a defined term in the PPS generally equating to the extent of the County.

107With respect to the Growth Plan and the COP, the Tribunal agrees with both parties that the Proposed Development conforms with both plans as it is located within a settlement area with municipal services, and provides for intensification, higher densities, an efficient use of land and infrastructure, and a range and mix of housing types.

108Given the wording in section 4.6 of the PPS, that the official plan is the most important vehicle for implementation of the PPS, the Tribunal carefully considered the submissions of both Mr. Travis and Mr. Dyment in the analysis of the TOP with respect to the provision of AH.

109The Tribunal agrees with Mr. Dyment’s assessment that intensification has been shown to provide opportunities for AH and that this concept is emphasized in TOP policy 4.3.2.3.4. The TOP does not take the next step, however, to compel a particular development to provide for AH, nor does it contemplate methods to attain AH through zoning.

110The Tribunal does not agree with Mr. Dyment’s interpretation of policy 4.3.2.3.6, that it enables the Tribunal to find that the ZBA should incorporate AH through some means, such as limiting the unit size of a prescribed number of units. The policy wording requires consideration of modifications to “existing zoning and servicing standards”. The wording makes clear that it is not mandatory to require AH, albeit it provides the opportunity to consider it. The question that is not answered clearly from the wording of the policy is whether modifications to existing zoning standards should be attained on a site-specific application of the policy or a Town-wide zoning amendment to change zoning standards in this regard. Without clear wording to rely on in this regard, the Tribunal is reluctant to infer the intent of this policy on a site-specific basis.

111The remainder of policy 4.3.2.3.6 qualifies the provision of AH units “where such revisions are consistent with the intent of the Official Plan, and are in accordance with good planning and engineering principles”. This qualifier suggests that other policies in the TOP need to be met as well, including policy 4.3.2.3.5 regarding locating AH in close proximity to shopping or community facilities and public transit. Although the Development Parcel may be proximate to a certain service level of public transit, it is not proximate to shopping or community facilities and the Tribunal finds that it would be unreasonable to require AH in this location for this reason alone.

112Notwithstanding the wording of the TOP policy 4.3.2.3.6, the Tribunal finds that the basis of Mr. Dyment’s analysis in arriving at the 600 sq ft unit size restriction and the finding of approximately ten percent of the total unit count (or 60 units) to be ‘reasonable’, even if based on the countywide target of ten percent of new housing units created each year to be affordable, is not sufficient to exact a particular zoning standard on a development absent specific TOP policies requiring such. Furthermore, no analysis was provided by a land economist or other professional qualified to present evidence related to housing affordability in the County’s regional market. The Tribunal therefore cannot rely on the findings of Mr. Dyment in this regard.

113Additionally, assuming dwelling unit size is an appropriate metric to craft zoning standards for AH, the Tribunal finds that the MLS analysis limited to a sample size of six sales across one month’s inventory of housing sales is not sufficient for such purposes. A more fulsome analysis, conducted by the Town through the development of the AH Strategy Development and applied across the municipality, should be required before determining how, where and when to require the provision of AH through zoning standards.

114The Tribunal accepts the assessment of Mr. Travis that the AH Needs Assessment is not Town policy and that the anticipated AH Strategy Development will provide the policy framework for the Town to implement AH requirements in the TOP. The AH Needs Assessment is described in the document as being “a formal analysis identifying benchmarks and targets to ensure that the Task Force recommendations accurately reflect the current and future needs of the Town”. The next step is described as a separate document, an AH Strategy Development, to “[a]ssist… in reviewing potential policy and procedure recommendations that facilitate [the] creation of affordable housing and identifying planning policy best practices that may not have been considered in the current Official Plan review process…”. Until such time as the AH Strategy Development is complete and related TOP policies are in place, it is the Tribunal’s finding that the TOP does not yet contain the requisite policies to direct the provision of AH to the Proposed Development.

115The Tribunal therefore finds that it is not reasonable to require the ZBA to contain a component of AH in the form of restricting the area of a certain percentage of the units to a maximum of 600 sq ft. In this respect, the Tribunal prefers the ZBA as drafted by Mr. Travis and agrees with him that the ZBA represents good land use planning as it will provide for a range of housing types at an increased density permitted by the TOP, without impacting the ecological integrity of the adjacent wetlands or creating or exacerbating any environmental issues or concerns that have not been adequately addressed, assessed and mitigated. The Tribunal also finds that the ZBA is in the public interest since, as proffered by Mr. Dyment, intensification has been shown to provide opportunities for AH.

116The Tribunal finds that there is no compelling need for a holding provision as the Conditions provide for phasing and the confirmation of servicing capacity to the satisfaction of the Town.

Amendment to Condition 1 of Conditions of Draft Plan Approval

117Considering the finding of the Tribunal with respect to the ZBA, providing for an increase in density from 328 to 655 units, it is appropriate therefore to consider the request by Consulate for the Tribunal to exercise its authority under s. 51(44) and 51(56.2) of the Act to amend Condition 1 as it relates to the unit yield for the Development Parcel.

118Condition 1 identifies the various blocks on the DPS and further identifies that the DPS approval also applies to the Revised Concept Plan showing the breakdown of units for the Development Parcel as shown in items j. to l. below:

1. That this approval applies to the Draft Plan of Subdivision located at Part of Lots 48, 49 and 50, Concession 11, Town of Collingwood, County of Simcoe prepared by Glen Schnarr and Associates Inc., with a revision date of July 26, 2007, and showing a total of:

a. Two Residential Blocks (Blocks 1 and Block 17)

b. Three Provincially Significant Wetland (Environmental Protection) Blocks (Blocks 11 through 13)

c. Seven Wetland Buffer Blocks (Blocks 4 through 10)

d. One Stormwater Management (Greenland Channel) Block (Block 3)

e. One Shared Pumping Station Block (Block 16)

f. Two 0.3 metre reserves (Blocks 18 &19) (Reserve to go on all lots fronting Hwy 26)

g. One Woodlot Block (Block 14)

h. One Condo Road “A” (Block 2)

i. One Potential Access Block (Block 15).

That this approval also applies to the Development Concept Plan located at Part of Lots 48, 49 and 50, Concession 11, Town of Collingwood, County of Simcoe prepared by Glen Schnarr and Associates Inc., with a revision date of July 26, 2007, and showing a total of:

j. 71 - Single Detached Dwellings (Block 1)

k. 87 - Townhomes (Block 1)

l. 162 – Three Storey Walk-up Apartment Units (Block 1)

m. A High-Density Residential Block developed in accordance with the approved Official Plan (Block 17).

119In order to recognize the increase in unit count and change to unit types permitted by the ZBA, Condition 1 is to be amended as follows:

1. Replace subsection j. with the following:

j. A maximum of 655 dwelling units including the following range of unit types: single detached, semi-detached, townhouse, including back to back townhouse and stacked townhouse, group or cluster dwellings and apartment dwellings (Block 1)

2. Delete subsections k. and l.; and

3. Renumber subsection m. as subsection k.

120As the approval authority has not yet granted final subdivision approval, the Tribunal therefore retains the jurisdiction to consider and grant changes to the Conditions, if deemed appropriate. Since the 2007 Decision and Order, the approval lapsing date of the DPS has been extended by the approval authority several times, with a further request for an extension of draft plan approval having recently been submitted for consideration. As of the date of the hearing, the Conditions had a lapsing date of June 29th, 2024.

121The Tribunal finds that the request to exercise its authority under s. 51(44) and 51(56.2) of the Act to change Condition 1 is reasonable given the findings of the Tribunal with respect to the ZBA. It is noted that the Tribunal did not turn its mind to considering the sufficiency of the remainder of the Conditions and leaves the authority to change the Conditions with the approval authority, pursuant to s. 51(44) of the Act.

122The Tribunal also finds that, pursuant to s. 51(47), no notice is required to be given under s. 51(45) as the change to the condition is minor.

ORDER

123THE TRIBUNAL ORDERS that the appeal is allowed and directs the Town of Collingwood to amend By-law 2010-040 as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Town of Collingwood to assign a number to this by-law and to assign exception zone numbers for record keeping purposes.

124AND THE TRIBUNAL ORDERS that pursuant to s. 51(56.2) of the Planning Act, Condition 1 of the Conditions of Draft Plan Approval is hereby amended as follows:

1. Replace subsection j. with the following:

j. A maximum of 655 dwelling units including the following range of unit types: single detached, semi-detached, townhouse, including back to back townhouse and stacked townhouse, group or cluster dwellings and apartment dwellings (Block 1)

2. Delete subsections k. and l.; and

3. Renumber subsection m. as subsection k.

“C. I. Molinari”

C. I. MOLINARI

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

WHEREAS Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended, permits a Council to pass a by-law prohibiting the use of land, buildings or structures within a defined area or areas;

AND WHEREAS Collingwood Zoning By-law No. 2010-040 is the governing By-law of the Corporation of the Town of Collingwood and such was finally passed by the Council of the Town of Collingwood on April 12th, 2010;

AND WHEREAS the Council of the Corporation of the Town of Collingwood has deemed it advisable to amend Collingwood Zoning By-law No. 2010-040, and thus implement the Official Plan of the Town of Collingwood;

AND WHEREAS Council deems that adequate public notice of the public meeting was provided and adequate information regarding this Amendment was presented at the public meeting held March 25, 2019, and that a further public meeting is not considered necessary in order to proceed with this Amendment;

NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF COLLINGWOOD ENACTS AS FOLLOWS:

1. THAT Schedule “A” of Collingwood Zoning By-law No. 2010-040, as amended, is hereby further amended as it pertains to lands shown more particularly on Schedule ‘A’ affixed hereto and forming part of this by-law, by rezoning said lands from the RESIDENTIAL THIRD DENSITY EXCEPTION 5, 12, 23 and 24 (R3-5, R3-12, R3-23, R3-24) ZONES to the RESIDENTIAL THIRD DENSITY EXCEPTION X (R3-X) ZONE.

2. THAT Section 6.5 titled Residential Exception Zones of the Collingwood Zoning By-law No. 2010-040, as amended, is hereby amended in part by deleting the following: RESIDENTIAL THIRD DENSITY EXCEPTION FIVE – R3-5 ZONE; RESIDENTIAL THIRD DENSITY EXCEPTION TWELVE – R3-12 ZONE; RESIDENTIAL THIRD DENSITY EXCEPTION TWENTY-THREE R3-23 ZONE and; RESIDENTIAL THIRD DENSITY EXCEPTION TWENTY-FOUR – R3-24 ZONE.

3. THAT Section 6.5 titled Residential Exception Zones of the Collingwood Zoning By-law No. 2010-040, as amended, is hereby amended in part by adding RESIDENTIAL THIRD DENSITY EXCEPTION XX – R3-XX ZONE as follows;

“RESIDENTIAL THIRD DENSITY EXCEPTION XX R3-XX ZONE

Uses shall be limited to single detached, semi-detached, townhouse, including back to back townhouse and stacked townhouse, group or cluster dwellings and apartment dwellings.

The number of dwelling units in the entire area within this zone shall not exceed six hundred and fifty-five (655).

For the purposes of this By-law, a Back to Back Townhouse dwelling type means a building with four or more dwelling units divided vertically, including a common rear wall, each with an independent entrance and has a yard abutting at least one exterior wall of each dwelling unit.

For the purposes of this By-law a Stacked Townhouse dwelling type means a building with four or more dwelling units divided horizontally and vertically, each with an entrance that is independent or through a shared landing and/or external stairwell.

The following zoning exceptions shall apply;

For an apartment dwelling;

Minimum front yard 6.0m

Minimum interior and exterior side yard 6.0m

Minimum rear yard 6.0m

Maximum height 15.0m & 4 storeys

Minimum setback from the EP zone 55m

3. THAT Collingwood Zoning By-law No. 2010-040 is hereby amended to give effect to the foregoing, but that Collingwood Zoning By-law 2010-040 shall in all other respects remain in full force and effect.

4. THAT this By-law shall come into force and effect on the date it is enacted and passed by the Council of the Corporation of the Town of Collingwood, subject to notice hereof being circulated in accordance with the provisions of the Planning Act and Ontario Regulation 545/06, and if required as a result of such circulation the obtaining of the approval of the Ontario Land Tribunal.