Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 29, 2024
CASE NO(S).: OLT-23-001119
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Lucchetta Builders Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a 3-Storey Condominium with 24 Residential Units
Reference Number: PB-2023-22
Property Address: 368 Aqueduct Street and 155 Gadsby Avenue
Municipality/UT: Welland/Niagara
OLT Case No: OLT-23-001119
OLT Lead Case No: OLT-23-001119
OLT Case Name: Lucchetta Builders Inc. v. Welland (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Reference Number: PB-2023-22
Property Address: 368 Aqueduct Street and 155 Gadsby Avenue
Municipality/UT: Welland/Niagara
OLT Case No: OLT-23-001118
OLT Lead Case No: OLT-23-001119
Heard: November 20, 2024 by Video Hearing
APPEARANCES:
Parties Counsel
Lucchetta Builders Inc. Brian Duxbury
City of Welland Callum Shedden Darian Ekblad (Articling Student)
Robert Parent Tom Richardson Evan Alderman (Articling Student)
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN ON NOVEMBER 20, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal concerns two Appeals filed by Lucchetta Builders Inc. (“Appellant”) against the City of Welland (“City”) for its failure to make a decision within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), with respect to an Application for an Official Plan Amendment (“OPA”) and an Application for Amendment to the Zoning By-law (“ZBA”) (together the “Applications”).
2The Appellant filed the Applications to facilitate the development of a three-storey, 24-unit residential building on the lands located and known municipally as 368 Aqueduct Street and 155 Gadsby Avenue (“Subject Lands”).
3The matter was originally scheduled to be considered at a Hearing of the Merits of the Appeals to commence on November 12, 2024, however, prior to the commencement of the proceedings, the Parties advised the Tribunal that they had arrived at a Settlement of the Appeals and requested an adjournment to allow them to finalize Minutes of Settlement.
4The Hearing was adjourned to November 20, 2024 for a Hearing on the terms of the Settlement as provided for in Rule 12 of the Tribunal’s Rules of Practice and Procedure.
BACKGROUND AND CONTEXT
5The Subject Lands have a lot frontage on Aqueduct Street of 16.1 metres (“m”) and a lot frontage of 19.5 m on Gadsby Avenue and extend behind low density residential properties fronting on Aqueduct Street and Gadsby Avenue. The Subject Lands have an area of 0.63 hectares and are currently vacant with a Woodland feature located along the east side of the Subject Lands extending from the Gadsby Avenue frontage to the northern boundary of the Subject Lands.
6The Subject Lands are bounded on the east, south, and west sides by single detached residential dwellings. Along the northern boundary, the Subject Lands abut the City’s Aqueduct Street Park and a single detached dwelling fronting on Aqueduct Street at the northwest corner of the Subject Lands.
7Apart from the acknowledgement of the Woodland feature on the Subject Lands being designated as Significant Woodlands in the current Region of Niagara Official Plan (“ROP”), which was not in effect at the time of the submissions of the Applications, there are no protections in place through the current zoning applying to the lands.
8The Subject Lands have been divided into three blocks, with Block A being the existing lot fronting on Gadsby Avenue, Block B comprising the majority of the Woodland feature along the east side of the Subject Lands, and Block C being the lands on which the proposed development will be accommodated.
SETTLEMENT PROPOSAL
9The Settlement Proposal will facilitate the development of Block C with a three-storey, 24-unit residential building located at the north-west corner, an access driveway to Aqueduct Street and a surface parking area accommodating 28 parking spaces located on the south side of the proposed building. Block B will be dedicated to the City through the Site Plan Approval process and Block A will be conveyed to the City as set out in the terms of the Minutes of Settlement filed with the Tribunal.
10Blocks A and B will ultimately become a part of the abutting Aqueduct Street Park and a Woodland Management Plan has been submitted to address protections for the Woodland feature as part of the redevelopment proposal.
11A Development Plan, dated November 12, 2024, describing the revised proposal and identifying Blocks A, B, and C referred to above, was filed with the Tribunal as Exhibit 2.
SUBMISSIONS
12Joseph Tomaino, a Registered Professional Planner, provided an Affidavit and viva voce evidence in support of the Settlement Proposal and the OPA and the ZBA.
13Mr. Tomaino reviewed the Planning Policy Framework applicable to the Applications and opined that the Settlement Proposal and the requisite OPA and ZBA to implement the proposal represent good planning and are an appropriate use of the land.
14Section 2 of the Act sets out matters of provincial interest to which the Tribunal is to have regard for when considering the Applications. Mr. Tomaino proffered that the Settlement Proposal has appropriate regard for these matters and in particular the matters relating to the protection of ecological systems, efficient use of municipal infrastructure, the orderly development of safe and healthy communities, the appropriate location for growth and development, supporting public transit, and the promotion of a well-designed built form.
15On October 20, 2024, the Provincial Planning Statement, 2024 (“PPS 2024”) came into force replacing the Provincial Policy Statement, 2020 and A Place to Grow: Growth Plan for the Greater Golden Horseshoe. In consideration of the PPS 2024, Mr. Tomaino opined that the Settlement Proposal is consistent with the provisions of the PPS 2024. The Subject Lands are located within a Settlement Area where growth is to be focussed. The Settlement Proposal represents an efficient use of land that optimizes existing infrastructure and preserves the Woodland Natural Feature for the long term.
16Mr. Tomaino opined that the OPA and ZBA conform to the ROP as the Settlement Proposal addresses policies pertaining to managing growth, the natural environment, transportation, and housing and community services.
17The Subject Lands are designated Low Density Residential and Open Space & Recreation in the City Official Plan (“City OP”). Mr. Tomaino advised that he has reviewed the policies under Growth Management, Urban Area Land Use, City-Wide Land Use as they apply to the Settlement Proposal, and he opined that the OPA and ZBA conform to the City OP.
18Mr. Tomaino proffered that the Settlement Proposal is compatible with surrounding context as the configuration of the Subject Lands and the siting of the proposed building is such that there is no impact on the streetscape along Aqueduct Street as the building is well setback from the street. The height of the proposed building does not exceed the maximum height permitted for other structures on the surrounding properties. He explained that the proposed building is sited at the northeast corner of the Block C, providing a generous spatial separation from surrounding residential dwellings thereby minimizing any potential impact. Mr. Tomaino submitted that compatible does not mean the same as, it is determined by assessing if the two different built forms can co-exist without creating any adverse impacts. He cited other examples in the area of comparable built forms that co-exist without any negative or adverse impacts.
19The OPA proposes to designate the Woodland feature contained within Blocks A and B, shown as Part 1 on Schedule A to the draft OPA to a Core Natural Heritage designation and to designate the lands described as Block C, shown as Part 2 on Schedule A to the draft OPA, as Medium Density Residential.
20The ZBA proposes to rezone the Woodland feature lands to Neighbourhood Open Space Environmental Protection Overlay (EP) and to rezone the balance of the Subject Lands to Residential Medium Density (RM) with a site-specific designation.
21Mr. Tomaino opined that the OPA and ZBA satisfy the criteria set out in s. 2, s. 22, and s. 34 of the Act, are consistent with the PPS 2024, conform to the ROP, and conform to the City OP. He proffered that the Settlement Proposal is appropriate and compatible with the surrounding land uses. Mr. Tomaino submitted that the Settlement Proposal protects the Woodland feature and the Woodland Management Plan will ensure the long term preservation of the Natural Heritage Feature.
22Mr. Tomaino recommended that the Appeals be allowed and the Tribunal approved the OPA and ZBA as revised to implement the Settlement Proposal presented.
ANALYSIS AND FINDINGS
23The Tribunal, having considered the uncontroverted testimony and affidavit evidence of Mr. Tomaino, finds that the Settlement Proposal represents an appropriate form of low-rise intensification and is an appropriate infill development.
24The OPA and ZBA appropriately address the protection and preservation of the Woodland feature on the Subject Lands.
25The Tribunal finds that the OPA and ZBA have appropriate regard for the matters of provincial interest set out in s. 2 of the Act and are consistent with the PPS 2024.
26The Tribunal finds that the OPA and ZBA conform to the ROP and the City OP. The identification and delineation of the Woodland feature will be protected through the designation in the City OP and the proposed zoning in the ZBA.
27The Tribunal finds that the Settlement Proposal represents good planning and is in the public interest.
28The Tribunal allows the Appeals and approves the OPA as set out in Attachment 1 to this decision and approves the ZBA as set out in Attachment 2 to this decision.
ORDER
29THE TRIBUNAL OREDERS THAT the Appeal filed pursuant to section 22(7) of the Planning Act is allowed and the Official Plan for the City of Welland is amended as set out in Attachment 1 to this Order.
30AND THE TRIBUNAL ORDERS THAT the Appeal filed pursuant to section 34(11) of the Planning Act is allowed and By-law 2017-117 is hereby amended as set out in Attachment 2 to this Order.
31The Tribunal authorizes the municipal clerk of the City of Welland to assign a number to this by-law for record keeping purposes.
“David Brown”
DAVID BROWN 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
AMENDMENT NO. 33 to the OFFICIAL PLAN of the CORPORATION OF THE CITY OF WELLAND
AMENDMENT NO. 33 TO THE OFFICIAL PLAN OF THE CORPORATION OF THE CITY OF WELLAND
PART A - THE PREAMBLE (This does not constitute part of the Amendment)................... 1 TITLE AND COMPONENTS............................................................................................ 1 PART B - THE AMENDMENT..................................................................................................... 2 SCHEDULE "A" LAND USE PLAN................................................................................. 3
PART A - THE PREAMBLE (This does not constitute part of the Amendment)
TITLE AND COMPONENTS
This document, when approved in accordance with the Planning Act, shall be known as Amendment No. 33 to the Official Plan of the Corporation of the City of Welland.
Part "A", the Preamble, does not constitute part of this Amendment. Part "B", the Amendment, consists of the map and text changes.
PURPOSE OF THE AMENDMENT
The purpose of Official Plan Amendment No. 33 is to redesignate the lands shown on the attached Schedule B to Medium Density Residential and Core Natural Heritage. The purpose of the Amendment is to allow the property to be developed with a 3 storey twenty four (24) unit apartment condominium plan accessed from Aqueduct Street and to protect the woodland feature on the property.
LOCATION
The lands subject to this Amendment are located on the east side of Aqueduct Street, north side of Gadsby Avenue, south of Aqueduct Street Park, and north of Thorold Road. The lands are 0.63 hectares in size.
BASIS
The subject lands are within the urban area boundary for the City of Welland and currently designated Low Density Residential and Parks, Open Space, and Recreation. The lands are currently vacant. A proposal has been put forth to redevelop the lands with a 3-storey 24-unit apartment building off of Aqueduct Street.
PART B - THE AMENDMENT
All of the Amendment entitled PART B - THE AMENDMENT, consisting of the following Policies and the map referred to as Schedule “A” - Land Use Plan and Policies, constitutes Amendment No. 33 to the Official Plan of the Corporation of the City of Welland.
MAP CHANGES
- Schedule A, City Structure Map is hereby amended by identifying additional Environmental Conservation Areas on the property.
- Schedule B, Land Use Map is hereby amended by identifying the lands as Residential and Core Natural Heritage.
- Schedule B1, Residential Hierarchy Land Use Map is hereby amended by identifying the lands as Medium Residential and Core Natural Heritage.
- Schedule C, Core Natural Heritage System Map is here by amended by identifying the Environmental Conservation Areas on the property.
- Schedule C1, Components of the Natural Heritage System Map is hereby amended by identifying the additional Environmental Conservation Areas on the property.
SCHEDULE A
ATTACHMENT 2
THE CORPORATION OF THE CITY OF WELLAND
BY-LAW NUMBER _____
BEING A BY-LAW TO AMEND CITY OF WELLAND ZONING BY-LAW 2017-117 (FILE NO. 2020-14) 368 AQUEDUCT STREET AND 155 GADSBY AVENUE
WHEREAS the Council of the Corporation of the City of Welland adopted By-law 2017-117 on the 17th day of October, 2017:
AND WHEREAS Subsection 1 of Section 34 of The Planning Act R.S.O. 1990, Chapter P.13 provides that local Councils may pass Zoning By-laws:
AND WHEREAS the Council of the Corporation of the City of Welland deems it expedient to amend said Zoning By-law 2017-117:
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF WELLAND ENACTS AS FOLLOWS:
That Schedule "A" to By-law 2017-117 be and the same is hereby amended as follows:
Part of Lot 239, former Township of Thorold, shown as Part 2 on Plan 59R-7365. Part 2 on Plan 59R-13040. and Part(s) 1 and 2 on Plan 59R-16468, in the City of Welland. shown on Schedule "A" attached hereto as “Change to RM-119” is hereby rezoned RM-119, “Change to Neighbourhood Open Space EP Overlay is hereby rezoned to O1 EP Overlay.
That the permitted uses and provisions in the RM-119 Zone be those permitted in the RM Zone, save and except as follows:
a. Minimum Lot Frontage 16 metres Maximum Building Height 11 metres (3 storeys) Minimum Rear Yard Setback 3 metres Minimum South Side Yard 23 metres Minimum North Side Yard 3 metres Minimum West Building Setback 15 metres Minimum Parking Spaces 28 metres Maximum # of units 24
READ A FIRST, SECOND AND THIRD TIME AND PASSED BY COUNCIL THIS __ DAY OF ___, 20.
MAYOR___________________
CLERK____________________
SCHEDULE A