Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2024

CASE NO(S).: OLT-23-000814

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

Applicant and Appellant: Dorchester Property Holdings Inc.

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

Description: To permit the construction of a five-storey residential building with 74 residential units

Reference Number: AM-2022-001

Property Address: 6259-6293 Dorchester Road

Municipality/UT: Niagara Falls/Niagara

OLT Case No.: OLT-23-000814

OLT Lead Case No.: OLT-23-000814

OLT Case Name: Dorchester Property Holdings Inc v. Niagara Falls (City)

Heard: October 23 – 25, 2024

APPEARANCES:

Parties	Counsel
Dorchester Property Holdings Inc.	Jennifer Meader, Mark de Jong
Niagara Stronger Together Inc.	David Neligan
City of Niagara Falls	Patrick Maloney (Part)

DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL

EXECUTIVE SUMMARY

1Dorchester Property Holdings Inc. (“Dorchester”) seeks to develop a 17 metre (“m”), five-storey tall, 74 dwelling unit apartment building, comprising of 18 one-bedroom and 56 two-bedroom units on the lands Municipally known as 6259-6293 Dorchester Road (“Subject Lands”) in the City of Niagara (“City”).

2To permit the development, a Zoning By-law Amendment (“ZBA”) was applied for to rezone the Lands from R1C and R4-839 to a special provision R5C Zone. The Council for the City of Niagara refused the rezoning, stating that the proposal is not compatible with the surrounding area. Subsequently Dorchester appealed the decision to the Tribunal.

3For the reasons below the Tribunal Orders that the Appeal of the ZBA is allowed.

INTRODUCTION

4The Tribunal held a three-day hearing of the merits for a ZBA for the Subject Lands.

5Leading up to the hearing, Minutes of Settlement (“MOS”), Exhibit 1, Page 1076-1082 was executed between the City and Dorchester. Therefore, the City communicated to the Tribunal that they were not participating in the hearing.

6Niagara Stronger Together Inc. (“NST”), a resident’s group, who were granted Party status at the Case Management Conference, maintains their opposition to the ZBA.

7The ZBA has been revised and in accordance with the MOS that would rezone the Subject Lands from R1C (Exhibit 1, Page 1040) and R4-839 (Exhibit 1, Page 1044) to a special provision R5C Zone, (Exhibit 7) to permit the redevelopment of the Subject Lands as contemplated by Dorchester.

CONTEXT – LANDS, PROPOSED DEVELOPMENT, & NEIGHBOURHOOD

Lands Description

8The Lands as consolidated by the four property parcels:

I. Lands size and dimensions are:

• Area: ±7,630.9 square metres (“m²”)
• Frontage: ±63.03m
• Depth: ±121.92m

II. Two (2) single detached dwellings, paved driveway/parking, and one (1) accessory structure (all to be demolished).

III. Trees (Exhibit 1, pages 133-137) – 96 trees in the study area:

• 37 trees on property (19 recommended for removal)
• 8 trees on property boundary
• 51 trees off property

IV. Neighbouring properties bordering the Subject Lands are single detached dwellings, one to the north, two to the south, two to the west and accessory structures.

V. Municipal Services:

• Dorchester Road: Arterial two-lane road on the regional cycling network and is currently undergoing an environmental assessment process.
• Water and wastewater are available with adequate capacity.
• Sidewalks along both sides of Dorchester Road. Dorchester has agreed through the MOS that the sidewalk directly in front of the Subject Lands will be improved to at least the current municipal standards in terms of width and design, with appropriate transition to the existing sidewalks.
• Bus transit stops are provided directly in front of the Lands with 30-minute headways, which is currently the highest level of transit in the City. Aligning with the MOS, Dorchester will install new bus pads at the existing bus stops.

Proposed Development

9Dorchester intends to redevelop the Subject Lands as follows:

I. An apartment building, five-storey at 17m in height (including architectural parapet walls)

II. 74 dwelling units, comprising of 18 one-bedroom and 56 two-bedroom units being 97 units per hectare (“UPH”).

III. 1.22 parking spaces per dwelling unit (1.4 required), total of 90 spaces located in the rear and northernly side yard (with requested size regulations):

• Minimum perpendicular length of 5.8m
• Minimum length of parallel of 6.3m
• Minimum parking space width of 2.6m
• Minimum width of manoeuvring aisle of 6.0m

IV. Setbacks:

• Front yard: 6.0m (7.5m required)
• South interior side yard: 9m* (1/2 building height (8.5m) required) *Adjustments (no less than required) may be needed to ensure alignment between the developments entrance and Stokes Street.
• North interior side yard: 32.6m (1/2 building height (8.5m) required)
• Rear yard: 26.3m (1/2 building height (8.5m) OR 10m, whichever is greater is required)
• To note: balconies shall not project into any required side yard.

V. 36.5% landscaped open space (40% of the lot area required)

Neighbourhood

10The neighbourhood context as studied by an 800 m radius (Exhibit 2b, Page 5) of the Subject Lands:

I. Commercial lands (Designated Tourist Commercial Corridor) to the north along Lundy’s Lane

• Grocery store
• Restaurants
• Bank
• Salons
• Variety store
• Note: just beyond the 800m radius there is an additional grocery store and pharmacy.

II. Primary low density, single detached residential on a variety of parcel sizes.

III. Five 2-3 storey medium density residential, ranging between 49-172 UPH four of which are mixed throughout Dorchester Road.

IV. Three (two different developments) 4-6 storey high density residential buildings, ranging between 80-109 UPH near Lundy’s Lane and one 1-storey high density residential with a UPH of 30.5.

V. Multiple schools and parks

PLANNING EVIDENCE & ANALYSIS

11Three land use planning witnesses provided written, oral, and visual evidence to the Tribunal to support their findings on the Proposed Development and ZBA.

I. Franz Kloibhofer (Exhibit 2a & 2b), on behalf of Dorchester, testified that the ZBA will allow intensification of underutilized lands while ensuring compatibility through setbacks, architectural & landscape design. Mr. Kloibhofer’s opined that the proposed development and ZBA has regard for the relevant matters of provincial interest as defined in section 2 of the Planning Act (“Act’), is consistent with the Provincial Planning Statement 2024 (“PPS”), conforms to the Niagara Regional Official Plan 2014 (“ROP”), has regard for the Niagara Regional Official Plan 2022 (“New ROP”), conforms to the Niagara Falls Official Plan (“NFOP”), maintains the general intent of the Zoning By-law, represents good planning and should be approved.

II. Andrew Bryce (Exhibit 4), who is now retired following 23 years of employment at the City was summoned by Dorchester. Mr. Bryce had carriage of this file and took part in the Planning Staff Report (Exhibit 1, Page 281-292) that was presented to City Council. Mr. Bryce upheld planning staff’s recommendation for approval that states the Proposed Development is transit supportive, minimizes land consumption, reduces servicing costs, provides diversity of housing options, and will result in intensification of the built-up area.

III. Allan Ramsay (Exhibit 5a & 5b), on behalf of NST, testified that the proposed development is an overdevelopment of the lands, is not in keeping with the character of the area, does not have sufficient regard for matters of provincial interest, is not consistent, nor conforms to local and provincial planning policies concluding that the ZBA does not represent good land use planning and should not be approved.

12The Tribunal heard extensive evidence by the three witnesses. It became evident to the Tribunal that the overall disagreement between Dorchester and NST is “does the proposed development fit?” Dorchester’s answers the question as yes, while NST states that “it just does not fit.”

13The Tribunal concurs with NST on the grounds that without the ZBA the proposed development can not physically fit within the building envelope. Which leads to determining whether the Proposed Development as contemplated through the ZBA is compatible with the neighbourhood.

14Mr. Ramsay offered his definition of compatible (Exhibit 5a, page 20):

“compatible” to mean 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.”

15The Tribunal looks to Part 2, Land Use Policies, Section 1, Residential of the NFOP to provide direction on compatibility. More specifically Policy 1.15, Built-up area (Exhibit 1, Pages 982-983) outlines where and how residential development should generally be, should be, and shall be located within the built-up area.

16Residential development as outlined in Policy 1.15 is divided into three categories, low, medium, and high density residential. The proposed development is defined as high density as it is an apartment building. Policy 1.15.5.iii states that apartment buildings no higher than six storeys, with a UPH between 75-100 shall be located on lands that front onto arterial roads and should be on current or planned public transit routes and in proximity to commercial areas.

17Except for “in proximity to commercial areas” all witnesses agree that the proposed development conforms to this policy.

18The policy goes onto state that development shall comply with the following:

• architectural treatments such as stepped or articulated built form, changes in exterior cladding and roof features should to be employed to lessen the impacts of taller buildings;
• rear yard setbacks should be equal to building height and interior side yards shall be appropriate for the building height proposed in relation to abutting land uses;
• street frontages shall be engaged through the use of porte cocheres, podiums or landscaping;
• parking is to be encouraged to be located within parking structures that are integrated with the development; and,
• where surface parking is provided, the parking area should be located in the rear or interior side yard. The parking area shall also have a landscaped perimeter of a depth and intensity that at maturity effectively buffers it from adjacent uses and streets.

19In addition to the above, policy 1.15 provides direction that while maximizing density of a given land area, intensification and infilling shall be designed to blend into the lot fabric, streetscape and built form. Furthermore, that a gradation of building heights and densities will be encouraged with sufficient horizontal separation distances between taller buildings and low-rise dwellings.

20Mr. Kloibhofer and Mr. Bryce are of the opinion that the Proposed Development meets and/or exceeds the policy objections as stated above. However, Mr. Ramsay is of the opinion that the proposed development is not within a strategic growth area as defined in the PPS as the Subject Lands are not defined as nodes or corridors, is too dense, too tall, leading to overlook, doesn’t engage the streetscape, is not transit supportive and is not within close proximity to Lundy’s Lane.

21First and foremost, the Tribunal accepts the position of Mr. Kloibhofer that the Subject Lands are within a strategic growth area as defined in the PPS. Mr. Kloibhofer opined that the Subject Lands and Proposed Development are within a settlement area, along an arterial road, is an infill development that fronts onto frequent transit. Although, the 30-minute headways of the bus service do not meet the definition of frequent transit, being 15 minutes, the Tribunal acknowledges that 30 minute headways is the most frequent transit in the City.

22The Tribunal accepts the opinions of Mr. Kloibhofer and Mr. Bryce that the Proposed Development engages the streetscape through existing and future landscaping and the position of a “front door” that leads to two sidewalks that connect to the public realm. Mr. Kloibhofer elaborated by stating that the parapet (roofline), exterior cladding, opaque glass balconies which will not encroach into the required side yard have been intentionally designed to ensure compatibility and so lesson any potential overlook. Moreover, as Mr. Ramsay confirmed during his cross examination, the roofline of the proposed structure is 15m, whereas with the addition of the architectural parapets increases the height to 17m. Therefore, resulting in additional distance separation between the proposed development and property line as the side yard setback is determined by the height of the structure.

23As it relates to transportation and the walkability of the Proposed Development, Mr. Ramsay and Mr. Kloibhofer have opposing views.

24As laid out above, the Subject Lands front onto Dorchester Road where future residents are able to walk, ride or drive to the municipal right-of-way to access an arterial two-lane road, that is designated as a regional cycling route, with sidewalks on both side, and bus stops going in both directions every 30 minutes. As well, the proposed development seeks to provide a reduced parking rate of 1.22 spaces per unit (90 spaces) whereas 1.4 spaces per unit are required (104).

25Mr. Ramsay is the only witness that opined that the proposed development is not transit supportive as the bus transit is not every 15 minutes and is not within walking distance to Lundy’s Lane. He suggests that just because there are alternative transit options available does not automatically imply that a development is indeed transit supportive.

26Mr. Kloibhofer is of the opinion that a 500-800 m radius is considered to be a 5–10-minute walking distance, as defined in the Growth Plan for the Greater Golden Horseshoe. Contrary to Mr. Kloibhofer, Mr. Ramsay communicated to the Tribunal that he has taken the position throughout his career that he calculates walking distance by the physical distance required to walk to a location, which is approximately five minutes for every 400m. Therefore Mr. Ramsay is of the opinion that only a very small portion of Lundy’s Lane commercial area is within walking distance.

27The Tribunal accepts the opinion of Mr. Kloibhofer that the Subject Lands are within close proximity to commercial areas that can be accessed by the highest level of bus service in the City or by walking within an 800m radius.

FINDINGS

28The Tribunal finds that the ZBA as contemplated by the Proposed Development:

I. Has regard for matters of provincial interest as set out in section 2 of the Act;

II. Is consistent with the PPS;

III. Conforms to the ROP and has regard for the New ROP;

• The Tribunal relies on the Clergy Principal and New ROP Policy 7.12.2.5, that states “applications deemed complete prior to the date of this Plan’s approval shall be permitted to be processed, and a decision made under the Local and Regional Official Plan policies, as well as Provincial policies that existed when the application was deemed complete.” to review conformity to the ROP.

IV. Conforms to the NFOP and moreover Part 2, Policy 1.15.5; and,

V. Maintains the general intent of the City’s Zoning By-law.

29The Tribunal accepts the opinions of Mr. Kloibhofer and Mr. Bryce, more specifically that high-density residential developments shall be constructed along arterial roads, while guaranteeing the compatibility with the existing neighbourhood.

30The Tribunal finds that the use of opaque balconies, the preservation and additional trees, landscaping, and setback are being utilized to minimize overlook while also maintaining an engaging street presence.

ORDER

31THE TRIBUNAL ORDERS THAT the Appeal is allowed, and Zoning By-law No. 79-200 is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the Municipal Clerk of the City of Niagara Falls to assign a number to this Zoning By-law for record keeping purposes.

“Kurtis Smith”

Kurtis Smith 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

CITY OF NIAGARA FALLS

By-law No. 2024-XXX

A by-law to amend By-law No. 79-200, to permit a 5-storey residential building containing 74 residential units.

THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS:

1. The Lands that are the subject of and affected by the provisions of this by-law are described in Schedule 1 of this by-law and shall be referred to in this by-law as the “Lands”. Schedule 1 is part of this by-law.

2. The purpose of this by-law is to amend the provisions of By-law No. 79-200, to permit the use of the Lands in a manner that would otherwise be prohibited by that by-law. In the case of any conflict between a specific provision of this bylaw and any existing provision of By-law No. 79-200, the provisions of this bylaw are to prevail.

3. The Lands, which are zoned “R1C” Zone & “R4” Zone shall be rezoned to the “R5C-XXX” Zone, modified, as per Schedule 1 of this By-law.

4. Notwithstanding any provision of By-law No. 79-200 to the contrary, the following regulations shall be applied to those lands zoned the R5CXXX Zone:

a) Maximum Height 17.0 metres inclusive of any architectural roof features including parapet walls

b) Minimum Front Yard Depth 6.0 metres plus any applicable distance specified in section 4.27.1 of By-law No. 79-200

c) Minimum Landscaped Open Space 36.5%

d) Notwithstanding Section 4.14 (c) of By-law No. 79-200, balconies shall not project into any required side yard

e) Parking Requirements 1.22 parking spaces for each dwelling unit

f) Minimum perpendicular length of parking space 5.8 metres

g) Minimum length of parallel parking space 6.3 metres

h) Minimum parking space width 2.6 metres

i) Minimum Width of Manoeuvring Aisle 6 metres

5. All other applicable regulations set out in By-law No. 79-200 shall continue to apply to govern the permitted uses on the Lands, with all necessary changes in detail.

6. No person shall use the Lands for a use that is not a permitted use.

7. No person shall use the Lands in a manner that is contrary to the regulations.

8. The provisions of this by-law shall be shown on Sheet C5 of Schedule “A” of By- law No. 79-200 by rezoning the Lands from the R1C, in part, and R4 and numbered 839, in part, to the R5C, numbered XXX.

9. Section 19 of By-law No. 79-200 is amended by adding thereto: 19.1.XXXX Refer to By-law No. 2024- .

Read a First, Second and Third time; passed, signed and sealed in open Council this XXth day of XX, 2024.

WILLIAM G. MATSON, CITY CLERK JAMES M. DIODATI, MAYOR

Amending Zoning By-law No. 79-200

Description: PT TWP LT 148 STAMFORD AS IN RO745232 ; NIAGARA FALLS, PT TWP LT 148 STAMFORD, PT 1 59R12713; NIAGARA FALLS PT TWP LT 148 STAMFORD, PTS 1 & 2 59R13393; NIAGARA FALLS PINS: 644010039, 644010263, 644010268, 644010269

Applicant: Dorchester Property Holdings Inc

Assessment: 272507001611400, 272507001600105