Downing Street (1015 King Street) Inc. v. Oshawa (City), 2023 CanLII 76828

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 18, 2023

CASE NO(S).: OLT-22-004771

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

Applicant and Appellant: Downing Street (1015 King Street) Inc.

Subject: Zoning Bylaw Amendment

Description: To permit development of 34 three-storey freehold townhouse units & 8 three-storey street townhouse units

Property Address: 511015 King Street E

Municipality/UT: Oshawa/Durham

Municipal File No.: Z-2021-07

OLT Case No.: OLT-22-004771

OLT Lead Case No.: OLT-22-004771

OLT Case Name: Downing Street (1015 King Street) Inc. vs. Oshawa (City)

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

Applicant and Appellant: Downing Street (1015 King Street) Inc.

Subject: Plan of Subdivision/Condominium

Description: To permit development of 34 three-storey freehold townhouse units & 8 three-storey street townhouse units

Property Address: 511015 King Street E

Municipality/UT: Oshawa/Durham

Municipal File No.: S-O-2021-02

OLT Case No.: OLT-22-004772

OLT Lead Case No.: OLT-22-004771

OLT Case Name: Downing Street (1015 King Street) Inc. vs. Oshawa (City)

Heard: July 4, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Downing Street (1015 King Street) Inc.	Rodney Gill, David Bronskill (in absentia), Zachary Fleisher (in absentia)
City of Oshawa	Adam Kosnick
Region of Durham	Robert Woon

MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER ON JULY 4, 2023 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1This matter involves the Appeals by Downing Street (1015 King Street) Inc. (“Appellant”) pursuant to s. 34(11) and s. 51(34) of the Planning Act against the City of Oshawa’s (“City”) failure to make a decision within the statutory time frames regarding the Appellant’s Zoning By-law Amendment (the “ZBA”) Application and the accompanying Draft Plan of Subdivision Application.

2The Subject Property is municipally known as 1015 King Street East, City of Oshawa.

3The effect of the two planning instruments will permit the construction of 34 three-storey freehold townhouse units in six blocks accessed by a common element driveway stemming from Queensdale Avenue and eight three-storey townhouse units with access onto Queensdale Avenue.

4The Subject Property is located on the south side of King Street East. Harmony Road is located approximately 500 metres (“m”) to the west of the Subject Property. The Subject Property encompasses an area of approximately 6,950 square metres (“sq m”) with approximately 59.81 m of frontage on King Street East and approximately 116.35 m of frontage on Queensdale Avenue. The Subject Property is currently vacant.

5The original applications were submitted on September 2, 2021 and deemed complete on October 14, 2021. The City held a statutory public meeting concerning the proposal on November 21, 2021. Since the time of the public meeting, several changes to the initial design have taken place based on the feedback from the City, the Region of Durham (“Region”) and the public.

6A revised plan was formally submitted to the City on June 16, 2022. The revised plan was presented to the City along with an updated planning justification report and a traffic impact study. City Council did not make a decision on the Applications and the Appellant formally appealed the lack of decision to the Ontario Land Tribunal.

7The Tribunal received correspondence from the Appellant in advance of the merit hearing advising that the Parties have reached a settlement on the issues and was making a request that the merits hearings be converted to a settlement hearing.

8In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.

LEGISLATIVE FRAMEWORK

9When considering appeals filed pursuant to s. 34(11) and 51(34) of the Act, the Tribunal must have regard to the matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Applications conform with the Region Official Plan (“ROP”), the City’s Official Plan (“COP”) and the City Zoning By-law (“ZBL”).

10In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Applications represent good planning and are in the public interest.

SUBMISSIONS

11Prior to the commencement of the hearing, the Tribunal received the Affidavit of Stephen Bedford in support of the settlement. The parties presented Mr. Bedford at the hearing to provide expert opinion evidence in the area of land use planning. Mr. Bedford was qualified and gave expert opinion evidence in the form of his affidavit along with oral testimony concerning the settlement. The Affidavit of Mr. Bedford was marked as Exhibit 1 for the hearing.

12Mr. Bedford provided background information on the Subject Property, the surrounding area and a history of the Applications.

The Applications

13Mr. Bedford advised the Tribunal that the Subject Property is part of the “Donevan” Community in the southeast part of Oshawa. The property is designated as “Residential” in the COP. King Street is designated as an “Urban Living Area” and as a Regional Corridor which is included on Schedule A-2 and a “Corridor and Intensification Area” on the ROP.

14Mr. Bedford advised the Tribunal that the settlement includes a setback from King Street East of 6.89 metres instead of 3.89 metres, which was in the original application. This new setback is to provide for a future road widening of King Street East for the expansion of transit infrastructure. The change in this setback resulted in the removal of two “Block Condominium Townhouse Units”. The settlement now proposes 32 units instead of the original 34 units.

15Mr. Bedford advised that the revised layout allowed for the addition of two extra street townhouses to make up for the loss of the Block Townhouse Units. To accommodate the additional units, the frontages of the street townhouses were reduced from 8.75 to 6.50 metres and the internal townhouse frontages were reduced from 6.0 metres to 5.10 metres. Building heights were reduced to mitigate built form impacts and to conform to the existing neighbourhood.

16A summary table is provided below for reference purposes to demonstrate the changes from the original applications to the settlement before the Tribunal:

Standard	Original Proposal (October 2021)	Settlement Proposal (May 2023)
Site Area	Gross = 0.6954 ha Widening = 0.0113ha Net = 0.6841 ha	Gross = 0.6954 ha Widening =0.0412 ha Net = 0.6542 ha
Proposed Dwelling Units	Block Townhouses = 34 Street Townhouses = 9 Total = 43 Units	Block Townhouses = 32 Street Townhouses = 10 Total = 42 Units
Density	62.86 U/ha	64.20 U/ha
Building Height	11.3 m All Block Townhouses 11.1 m All Street Townhouses	10.7 m Block A+B 10.7 m Block C+D 10.7 m Block E 12.0 m Block F 10.9 m Block 1+2
Parking Spaces	Street Towns 18 Resident Spaces 0 Visitor Spaces Block Towns 68 Resident Spaces 11 Visitor Spaces	Street Towns 20 Resident Spaces 0 Visitor Spaces Block Towns 64 Resident Spaces 11 Visitor Spaces
External Side Yard Setbacks	Block A = 1.550m () Block B = 1.550m () Block C = N/A Block D = 3.050m Block E = N/A Block F = 3.050m Block 1 = 2.220m () Block 2 = 1.550m ()	Block A = 1.550m () Block B = 1.501m () Block C = N/A Block D = 2.130m Block E = Block F = 1.970m Block 1 = 1.281m () Block 2 = 1.484m ()
Internal Side Yard Setbacks	Block A/B = 3.056m Block C/D = 2.500m Block E/F = 2.500m Block 1/2 = 3.100m	Block A/B = 3.055m Block C/D = 2.500m Block E/F = 2.500m Block 1/2 = 2.500m
Rear Yard Setbacks	Block A = 3.300m Block B = 3.300m Block C = 6.050m Block D = 6.050m Block E = 6.050m Block F = 6.050m Block 1 = 6.050m Block 2 = 6.050m	Block A = 2.700m Block B = 2.700m Block C = 7.373m Block D = 6.935m Block E = 6.050m Block F = 6.050m Block 1 = 5.774m Block 2 = 7.133m
Front Yard Setbacks	Block A = 3.050m Block B = 3.050m Block C = 4.500m Block D = 4.500m Block E = 4.500m Block F = 4.500m Block 1 = 4.500m Block 2 = 4.500m	Block A = 2.508m Block B = 2.630m Block C = 3.900m Block D = 3.900m Block E = 3.900m Block F = 3.900m Block 1 = 4.535m Block 2 = 3.900m

POLICY FRAMEWORK

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

17Mr. Bedford gave opinion that the settlement proposal has regard to matters of Provincial interest as set out is s. 2 of the Planning Act, including:

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(h) the orderly development of safe and healthy communities;

(j) the adequate provision of a full range of housing, including affordable housing;

(m) the co-ordination of planning activities of public bodies;

(n) the resolution of planning conflicts involving public and private interests;

(p) the appropriate location of growth and development;

(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;

(r) the promotion of built form that,

(i) is well-designed

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.

18Concerning the Draft Plan of Subdivision, Mr. Bedford gave opinion that the draft plan as proposed has appropriate regard to all matters set out in s. 51(24) of the Planning Act, including:

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(f) the dimensions and shapes of the proposed lots;

(i) the adequacy of utilities and municipal services;

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act.

19In Mr. Bedford’s opinion, the settlement proposal has appropriate regard for matters of Provincial interest and the proposed conditions of approval are appropriate and should be imposed as apart of the Tribunal’s decision.

Provincial Policy Statement, 2020 (“PPS”)

20In his review of the settlement, Mr. Bedford gave opinion that the settlement proposal is consistent with the PPS by meeting the intent of the following policies:

Policy 1.1.1 concerning healthy, liveable and safe communities, Policy 1.1.2 concerning the sufficient use of land for appropriate housing types, Policy 1.1.3.2 concerning land use patterns within settlement areas, Policy 1.1.3.3 concerning appropriate locations and promote opportunities for transit-supportive development, Policy 1.1.3.4 focusing on intensification, redevelopment and compact form, Policy 1.1.4.3 directing development in rural settlement areas in accordance to rural characteristics, Policy 1.6.7.2 concerning the use of existing infrastructure, Policy 1.7.1 which focuses on long-term economic prosperity, and Policy 1.8.1 concerning energy conservation and efficiency, improved air quality and reduced greenhouse gas emissions through land use and development patterns.

21In Mr. Bedford’s opinion, the settlement proposal is consistent with the PPS as the development is within the City’s settlement Area, contributes to a healthy community, provides a mix of housing options and appropriate intensification. The Subject Property is located on a transit supportive corridor and mitigates risks to public safety concerns.

Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)

22Mr. Bedford reviewed the Growth Plan and gave opinion that the planning instruments that will facilitate the proposed development are in conformity, in particular Policy 2.2.1.2 which states that development will be directed to settlement areas that have a delineated built boundary, have existing municipal services and are near existing transit. Mr. Bedford notes that Policy 2.2.1.4 focuses on the achievement of complete communities that feature a diverse mix of land uses including residential and employment uses, provide a diverse range and mix of housing options, expand convenient access to a range of transportation options, provide for a more compact built form and a vibrant public realm. A further conformity measure relates to Policy 2.2.2.3 which requires all municipalities to develop a strategy to achieve the minimum intensification target and intensification through delineated built-up areas to encourage intensification generally throughout the delineated built-up area, ensure lands are zoned and development is designed in a manner that supports the achievement of complete communities and be implemented through official plan policies and designations, updated zoning and other supporting documents.

23Mr. Bedford’s overall opinion is that the settlement proposal conforms with the Growth Plan.

Region of Durham Official Plan (“ROP”)

24Mr. Bedford advised that the settlement proposal conforms with the ROP. Specifically, the settlement proposal conforms inter alia with the following policies:

Policy 1.2.1 concerning the creation of a healthy, complete and sustainable communities, Policy 1.3.1 concerning the efficient use of lands for development, Policies 4.1.1, 4.2.1, 4.3.1 8.1.15 which focus on the diversity of housing types available. Mr. Bedford noted that Policy 8A.2.9 concerns development in a mixed-use area which support higher order transit services and pedestrian oriented development, which this proposal meets.

25In Mr. Bedford’s opinion, the Settlement Proposal conforms to the ROP.

City of Oshawa Official Plan (“COP”)

26Mr. Bedford gave opinion that the settlement proposal conforms to the COP as the proposal Subject Property is designated as residential in the City’s Official Plan. As such, the policies concerning a residential designation were the focus of his analysis. The proposal conforms to policies 2.3.1.1, 2.3.1.2 and 6.1.1 concerning a range of housing options in a neighbourhood. The proposal meets the “Medium Density II” designation as the density will be at 64.2 units per hectare whereas a minimum of 60 units per hectare is required. Policies 6.4.1, 6.4.2, 6.4.3 and 6.4.4 focus on types of intensification and appropriateness in a residential area including infill. In his review of these policies, it was Mr. Bedford’s opinion that the ZBA and Draft Plan of Subdivision conform to the COP.

Draft Plan Conditions

27Concerning the Draft Plan conditions, Mr. Bedford’s opinion was that the conditions requested by the City are appropriate and the conditions should be approved by the Tribunal as a part of the settlement.

Participant Concerns

28Mr. Bedford advised the Tribunal that the concerns raised by the Participants have been taken into consideration by this settlement proposal. Their concerns have been addressed by introducing a reduction in the overall height of the dwellings and the traffic study demonstrates that the proposed development will not exacerbate any traffic issues.

Summary Opinion

29Mr. Bedford’s analysis of the settlement proposal gave him an overall conclusion that the proposal implements policies in the PPS, Growth Plan, ROP and COP that support appropriate intensification, specifically, in an underutilized built-up area that is fully serviced and is supported by a regional transit corridor.

30In Mr. Bedford’s opinion, the settlement proposal as presented is an appropriate redevelopment for the neighbourhood and will not destabilize the existing character of the neighbourhood. It is his opinion that the ZBA and Draft Plan of Subdivision are in the public interest and represent good land use planning.

ANALYSIS AND FINDINGS

31The Tribunal accepts the uncontroverted testimony and evidence of Mr. Bedford.

32The Tribunal finds that the proposed development will fit in with the existing neighbourhood and will enhance the area by providing appropriate forms on intensification while ensuring compatibility with the surrounding neighbourhood. The proposal will be an efficient use of the land and will help support the achievement of the PPS and the Growth Plan policy directions that promote intensification within a built-up area.

33The Tribunal accepts the submissions of Mr. Bedford that the proposal will be served by existing municipal infrastructure and transit and will help promote the use of public transit.

34The Tribunal is satisfied that the Applications are consistent with the PPS, conform to the policies of the Growth Plan, and conform to the policies of the ROP and COP. The Tribunal finds that the Applications as presented conform to the general intent and purpose of Zoning By-law 60-94.

35The Tribunal finds that the Applications should be approved in their presented form, including the Draft Plan Conditions. The development is an appropriate form and design for the Subject Property and represents good land use planning.

ORDER

36THE TRIBUNAL ORDERS that the appeal is allowed in part, and the City of Oshawa Zoning Bylaw 60-94 is hereby amended as set out in “Attachment 1” to this Order. The Tribunal authorizes the municipal clerk of the City of Oshawa to assign a number to this by-law for record keeping purposes.

37THE TRIBUNAL ORDERS that the appeal is allowed in part and the Draft Plan shown on the plan prepared by D.G. Biddle and Associates dated March 22, 2023, comprising 1015 King Street East, Oshawa, Ontario, as set out in “Attachment 2” is approved subject to the fulfillment of the conditions as set out in “Attachment 3” to this Order.

38AND THE TRIBUNAL ORDERS that pursuant to subsection 51(56.1) of the Planning Act, the City of Oshawa shall have the authority to clear the conditions of Draft Plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of Draft Plan approval, or if any changes are required to be made to the Draft Plan, the Tribunal may be spoken to.

“S. deBoer”

s. deboer

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.