Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 20, 2024
CASE NO(S).: OLT-23-000163
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Sweid Holdings Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of 45 new residential units, being 15 single detached dwellings and 30 townhouse dwelling units
Reference Number: OPA 57
Property Address: 6, 10 and 14 Elmhurst Street
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No.: OLT-23-000163
OLT Lead Case No.: OLT-23-000163
OLT Case Name: Sweid Holdings Inc. v. Middlesex Centre (Municipality)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Sweid Holdings Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of 45 new residential units, being 15 single detached dwellings and 30 townhouse dwelling units
Reference Number: ZBA-16-2021
Property Address: 6, 10 and 14 Elmhurst Street
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No.: OLT-23-000164
OLT Lead Case No.: OLT-23-000163
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Sweid Holdings Inc.
Subject: Site Plan
Description: To permit the development of 45 new residential units, being 15 single detached dwellings and 30 townhouse dwelling units
Reference Number: SP05-2021
Property Address: 6, 10 and 14 Elmhurst Street
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No.: OLT-23-000165
OLT Lead Case No.: OLT-23-000163
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Sweid Holdings Inc.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the development of 45 new residential units, being 15 single detached dwellings and 30 townhouse dwelling units
Reference Number: 39T-MC-CDM2101
Property Address: 6, 10 and 14 Elmhurst Street
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No.: OLT-23-000190
OLT Lead Case No.: OLT-23-000163
Heard: January 29, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Sweid Holdings Inc.
A. Baroudi
County of Middlesex, and Municipality of Middlesex Centre
W. Meagher
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON JANUARY 29, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter is before the Tribunal as a Settlement Proposal (“Settlement”) following the appeals of the Municipality of Middlesex Centre (“Municipality”) and County of Middlesex’s (“County”) failure to adopt an Official Plan Amendment (“OPA”) application and a refusal or neglect to make a Decision on a Zoning By-law Amendment (“ZBA”) application pursuant to sections 22(7), and 34(11) of the Planning Act (the “Act”) respectively. Additionally, there are also the appeals of a refusal or neglect to make a Decision relating to a Site Plan Application (“SPA”) and a Draft Plan of Condominium (“DPC”) application pursuant to sections 41(12) and 51(34) of the Act respectively (together the “Appeals”). The Appeals have been filed by Sweid Holdings Inc. (“Appellant”) regarding the properties municipally known as 6, 10 and 14 Elmhurst Street (“Subject Lands”).
2The Subject Lands are approximately 2.035 hectares (5.02 acres) in area and located on the west side of Elmhurst Street and south of Glendon Drive (County Road 14) in Kilworth. The Subject Lands are legally described as Concession 1 S Part Lot 10 and Concession 1 Part Lot 10 RP 33R12238 Part 1, the Municipality (geographic Township of Lobo), the County.
3The purpose of the OPA application is to facilitate the proposed redevelopment of the Subject Lands and to re-delineate the Natural Environment designation to permit development. The proposed amendment reflects the Development Assessment Report completed by the Appellant.
4The purpose of the ZBA application is to rezone the lands from ‘Urban Residential First Density exception 3 (UR1-3)’ to two new site-specific zones to facilitate development – ‘Urban Residential First Density (UR1-x)’ zone to permit townhouse dwellings.
5The purpose of the SPA and DPC applications is to provide for a total of 45 dwelling units within a vacant land condominium. 15 units will be for the development of single detached dwellings and 30 units will be for the development of townhouse dwelling units. Each dwelling unit is proposed to have two parking spaces. 18 visitor parking spaces and a common amenity area will be located at the centre of the proposed development. All lots will front onto an internal private road that will have one access point onto Elmhurst Street. The proposed servicing is a connection to the municipal water and municipal sanitary service system located along Kilworth Park Drive.
6The Tribunal was previously in receipt of a sworn Affidavit of Service of Hesham Baroudi dated April 21, 2023, confirming proper Notice of Hearing for the Case Management Hearing in June 2023, which was marked as Exhibit 1.
7For the purposes of the Settlement Hearing, the Tribunal is in receipt of the following Exhibits:
Exhibit 2 - Witness Affidavit by Matthew Campbell, and AED, signed on January 18, 2024, on behalf of the Appellant;
Exhibit 3 - Draft Final Instruments inclusive of the following Schedules:
(1.OPA, 2. ZBA, 3.DPC, 4. Conditions of DPC, 5. SPA)
- Exhibit 4 - Draft Order submitted by the Parties, on consent.
8There were no other requests for Party or Participant Status.
LEGISLATIVE FRAMEWORK
9In deciding on the matters before it, the Tribunal must be satisfied that the proposed development is representative of good planning and in the public interest. The proposed planning instruments pursuant to sections 22(7), 34(11), 41(12) and 51(34), must be found to have appropriate regard for the matters of Provincial interest in s. 2 of the Act;
10The Settlement must also be consistent with the Provincial Policy Statement, 2020 (“PPS”), conform with the County of Middlesex Official Plan (“COP”), conform with the Municipality of Middlesex Centre Official Plan (“MMOP”) and conform with the Middlesex Centre Zoning By-law No. 2005-005 (“ZBL”).
SETTLEMENT EVIDENCE AND SUBMISSIONS
11Counsel for the Applicant requested the Tribunal’s concurrence that the appeals be allowed in part and approve the proposed OPA and ZBA, along with the amended SPA and DPC as they relate to these Appeals with the agreed upon conditions referenced in the Tribunal’s final Order below.
12Matthew Campbell a Registered Professional Planner on behalf of the Appellant was qualified by the Tribunal to provide land use planning opinion evidence, both through the comprehensive Affidavit and oral testimony relating to planning rationale in support of the Settlement. Mr. Campbell has been associated with this matter since 2023 and confirmed for the Tribunal’s information that he has visited the Subject Lands.
OPA, ZBA and DPC with Conditions
13Mr. Campbell opined that the proposed planning instruments tied to the development will permit and satisfy all requisite legislative tests and are representative of good planning and in the public interest. He added that the Settlement represents a change from low-density to medium-density and practically encourages compatibility, excellent site design and proper servicing requirements.
14Mr. Campbell asserted that the DPC, with the requisite conditions in the Settlement instruments, maintains robust and sufficient requirements to ensure good development of the Subject Lands. He expanded on the importance of the protection of natural heritage elements along the north and north-west portions of the site, which will be left vacant and form part the site’s common areas, with appropriate fencing providing added protection, as referenced in Schedule 5, attached to this Order. The provision of adequate parking, visitor parking and the extended setbacks from the normal 6 metres (“m”) to 8 m, combined with all other Site Plan requirements in the Settlement, represents sound land-use planning, maintaining a less urbanized design, which further encourages compatibility.
Regard for Matters of Provincial Interest of Section 2 of the Act
15At the Hearing, the following were identified as relevant considerations related to s.2 requirements of the Act:
(a) the protection of ecological systems, including natural areas, features and functions;
(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;
(e) the supply, efficient use and conservation of energy and water;
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
(g) the minimization of waste;
(h) the orderly development of safe and healthy communities;
(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;
(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
(j) the adequate provision of a full range of housing, including affordable housing;
(k) the adequate provision of employment opportunities;
(l) the protection of the financial and economic well-being of the Province and its municipalities;
(m) the co-ordination of planning activities of public bodies;
(n) the resolution of planning conflicts involving public and private interests;
(o) the protection of public health and safety;
(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;
(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate.
16While initially and inadvertently overlooked in the witness Affidavit, Mr. Campbell was provided the opportunity to share his opinion with the Tribunal. He testified in considerable detail on each of the aforementioned s. 2 requirements of the Act, adding that extensive study and consultation with the Municipality and County focused its peer-reviewed studies on ensuring the following as part of the Settlement:
Adequate protection of ecological systems and ecological features and functions;
No serious concerns of an archaeological nature in its studies;
Effective municipal services extension to the site within a reasonable distance to the settlement area in Kilworth also representing an appropriate level of intensification;
Traffic implications were minimized, and deemed very suitable for existing capacities, combined with a proposed left turn prohibition;
Combining of municipal services as proposed and private waste collection;
Healthy, safe and orderly development;
Compliance with a detailed Site Plan and the anticipated requisites of the Ontario Building Code;
No unreasonable adverse impact on the existing provision of community facilities including the local community centre and local parks;
The provision of adequate and diverse range of housing options;
No undue burden on the Municipality;
Public bodies and agencies are fully satisfied and any planning related conflicts were reasonably and effectively resolved with revisions agreed to by the Parties;
The promotion of sound built-form design, with excellent streetscape improvements and potential for sidewalk connectivity in the future if needed;
Sensitivity to environmental impact mitigation and greenhouse gas emissions;
17In summary, Mr. Campbell concluded that the Settlement specific to the Subject Lands had appropriate regard for the requirements pursuant to s. 2 of the Act.
Consistency with the Provincial Policy Statement
18Mr. Campbell provided a high-level review of the Settlement and its consistency with the PPS, including the following in Exhibit 2 (Pg7-8):
The PPS generally directs development to ‘Settlement Areas as the primary location for development in order to utilize existing municipal services, and to use land efficiently. The Settled Application will utilize existing municipal services, through the extension of municipal services, and make more efficient use of the currently vacant Subject Site for residential dwelling units (1.1.3.1).
The Settled Application adds to the mix of residential densities in the neighbourhood; adds to the range and mix of housing types; and provides a significant opportunity for intensification and redevelopment within the Settlement Area where there is an appropriate level of infrastructure to support the development (1.1.3.2, 1.1.3.3, 1.4).
The proposed development will make use of full municipal sanitary sewer and water through the extension of municipal services. Stormwater management is accommodated on-site through the use of private on-site SWM controls, thus there is no need for additional municipal stormwater infrastructure (1.6.6, 1.6.6.7).
The Settled Application preserves a section of the Subject Site to provide protection of the Significant Woodland (2.1).
Conformity with the County Official Plan (“COP”) and the Municipality of Middlesex Official Plan (“MMOP”)
19Mr. Campbell expanded on his written evidence through his testimony emphasizing the natural heritage elements of the Subject Lands, servicing, water and sanitation and stormwater management dynamics of the site. He expanded on the proposed stormwater infiltration galleries for water diversion located beneath the sodded, common amenity areas, along with reasonable service extensions, all effectively conformed with COP policies.
20Furthermore, Mr. Campbell opined that a number of the MMOP’s objectives were achieved including:
The protection of the boundaries at the north and north-west section of the Subject Lands;
Effective land-use planning;
An assortment of vacant land preservation;
A positive mix of density townhomes and detached dwellings, with an appeal to prospective homeowners seeking to “down-size”, resulting in reduced maintenance and snow removal among other reasons;
Consistency in urban design and the Municipality’s ZBL, with 8 m setbacks (greater than what is required);
No adverse compatibility concerns, with adequate servicing and pedestrian-friendly design;
Efficient use of the Subject Lands and abutting property.
21It was also noted that the County has jurisdiction over the approval, implementation and oversight of the OPA and DPC in these circumstances and the Municipality is responsible for the approval, implementation and oversight of the ZBA and Site Plan in this matter.
The Draft Plan of Condominium and Conditions
22Counsel for both Parties submitted that the DPC is within the Tribunal’s jurisdiction as it relates to s. 51 of the Act and recommended approval of the DPC with very detailed conditions, attached in Schedule 4, contained in the Order below. This gives the appropriate direction in the administration and oversight of these terms to the County. Reference was given to the provisions of Section 9 of the Condominium Act 1998 which will be applicable as necessary and states the following:
(2) Subject to this section, the provisions of sections 51, 51.1 and 51.2 of the Planning Act that apply to a plan of subdivision apply with necessary modifications to a description or an amendment to a description...
DISPOSITION
23Based on the uncontroverted testimony of Mr. Campbell, accompanied with his Affidavit and the agreement at the hearing by both Parties, the Tribunal finds that the requisite tests have been met, including having regard to matters of Provincial interest in s. 2 of the Act and consistency with the PPS, and the Tribunal agrees with Mr. Campbell’s opinion, that the Settlement conforms with both the COP and MMOP.
24Therefore, the Tribunal concurs with the Settlement and the appeals shall be allowed in accordance with the terms of the Settlement and the Order as follows below.
ORDER
25THE TRIBUNAL ORDERS that the appeals are allowed in part and:
(a) The Official Plan for the Municipality of Middlesex Centre is amended as set out in Schedule 1 to this Order;
(b) Directs the Municipality to amend Zoning By-law No. 2005-005 as set out in Schedule 2 to this Order. The Tribunal authorizes the municipal clerk of the Municipality to assign a number to this by-law for record keeping purposes;
(c) The Draft Plan of Condominium is approved as set out in Schedule 3 to this Order, subject to the fulfillment of the conditions as set out in Schedule 4 to this Order.
(d) The Site Plan is modified as set out in Schedule 5 to this Order, and as modified is approved.
26THE TRIBUNAL FURTHER ORDERS that pursuant to subsection 51(56.1) of the Planning Act, the County shall have the authority to clear the conditions of Draft Plan Approval and to administer final approval of the Plan of Condominium as partially approved by this Order for the purposes of s. 51(58) of the Act.
27THE TRIBUNAL FURTHER ORDERS that the County may, on the consent of the Applicant/Appellant or a subsequent owner of the lands, make minor modifications to the Draft Plan Approval or the Draft Conditions that are consistent with the intent of the Tribunal’s substantive approval for the purpose of clearing conditions of Draft Plan Approval and administering Final Approval, if those minor modifications are on the consent of the Applicant/Appellant or a subsequent owner.
28THE TRIBUNAL FURTHER ORDERS that it may be spoken to in the event any matter or matters should arise in connection with the implementation of this Order, including if minor modifications to the plans, Draft Plan, Site Plan or Conditions are sought without consent of the other party. The Tribunal will also retain jurisdiction and may be spoken to if a dispute arises in connection with a subsequent agreement required under the Planning Act relating to the Draft Plan of Condominium and/or Site Plan.
29This concludes the Appeals of Sweid Holdings Inc.
30The Member may also be spoken to relating to this Order by contacting the Case Coordinator if required.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.
Schedule 1
Schedule 2
Schedule 3
Schedule 4
Schedule 5