Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 28, 2024

CASE NO(S).: OLT-23-000449

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 10184217 Canada Corporation

Subject: Request to amend the Official Plan – Refusal of request

Description: To permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings

Reference Number: OR01/20

Property Address: 15 Clover Avenue

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-23-000449

OLT Lead Case No.: OLT-23-000449

OLT Case Name: 10184217 Canada Corporation v. Cambridge (City)

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

Applicant/Appellant: 10184217 Canada Corporation

Subject: Application to amend the Zoning By-law – Refusal of Application

Description: To permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings

Reference Number: OR01/20

Property Address: 15 Clover Avenue

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-23-000450

OLT Lead Case No.: OLT-23-000449

Heard: November 6-7, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel
10184217 Canada Corporation (“Appellant”/“Applicant”)	Denise Baker
City of Cambridge (“City”)	Nicole Auty Nancy Smith

AMENDING DECISION OF THE TRIBUNAL DELIVERED BY K.R. ANDREWS

1In accordance with Rule 24.4 of the Tribunal’s Rules of Practice and Procedure, whereby the Tribunal may at any time and without prior notice to the Parties correct a technical or typographical error made in a decision or order (“Decision”). The Decision issued on February 16, 2024 is hereby amended.

2By amending Counsel name for the City of Cambridge (“City”) in the Appearances List as “Nicole Auty” and replacing it with the revised Appearance List as now shown in this Amending Decision.

3In all other respects, the Tribunal’s Decision remains the same.

“K.R. Andrews”

K.R. ANDREWS 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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 15, 2024

CASE NO(S).: OLT-23-000449

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 10184217 Canada Corporation

Subject: Request to amend the Official Plan – Refusal of request

Description: To permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings

Reference Number: OR01/20

Property Address: 15 Clover Avenue

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-23-000449

OLT Lead Case No.: OLT-23-000449

OLT Case Name: 10184217 Canada Corporation v. Cambridge (City)

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

Applicant/Appellant: 10184217 Canada Corporation

Subject: Application to amend the Zoning By-law – Refusal of Application

Description: To permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings

Reference Number: OR01/20

Property Address: 15 Clover Avenue

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-23-000450

OLT Lead Case No.: OLT-23-000449

Heard: November 6-7, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel
10184217 Canada Corporation (“Appellant”/“Applicant”)	Denise Baker
City of Cambridge (“City”)	Nicole Auty

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

4This appeal arises following a refusal by the City regarding Applications (the “Applications”) for a proposed Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to facilitate an infill development of 30 residential units at 15 Clover Avenue, of which six are proposed as street-fronting townhouses and the remainder as stacked townhouse units in two blocks (the “Proposed Development”).

5It is noteworthy that the proposed development has been modified from its initial design after public consultation and work with City staff, eventually leading to the Applications being supported by City planning staff, who then recommended approval by City Council. However, City Council nevertheless refused the Applications following concerns and submissions expressed by some area residents. The City continues to maintain its opposition to the Applications, while now citing urban design/compatibility concerns.

6At the present hearing, the City did not call any planning evidence, leaving the testimony and opinions of the Appellant’s planner (qualified as an expert in both “Land Use Planning” and “Urban Design”), David Galbraith, uncontested except where it touches on urban design/compatibility questions. The City confirmed that it does not question Mr. Galbraith’s planning evidence, except in relation to urban design/compatibility matters.

7With that concession, and while setting aside urban design/compatibility questions, the Tribunal received and accepted Mr. Galbraith’s opinions insofar as the subject Applications satisfy all of the applicable statutory tests for approval (the Tribunal provides a more detailed account of this further below). To summarize on this point (while still setting aside urban design/compatibility issues), the Tribunal finds that the proposed development has appropriate regard to matters of provincial interest set out at s. 2 of the Planning Act, and is consistent with the Provincial Policy Statement, 2020 (“PPS”) and conforms with the Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”) pursuant to s. 3(5) of the Planning Act. Furthermore, in accordance with s. 24(1) of the Planning Act, the ZBA Application conforms with the Region of Waterloo Official Plan, 2009 (“ROP”; including Regional Official Plan Amendment No. 6 (“ROPA 6”)) and the City of Cambridge Official Plan (“City OP”).

8In support of its case, the City relied on testimony and opinions of its Urban Design expert, Catherine Jay (duly qualified), who opined that the proposed development does not conform to the City OP due to urban design issues associated with compatibility of the surrounding neighbourhood. More specifically, she cited issues pertaining to density, setbacks, height and overall ‘fit’ within the immediate neighbourhood context from an Urban Design standpoint.

9Upon considering the opposing evidence of the parties’ experts on the subject of compatibility, from an Urban Design standpoint, the Tribunal ultimately prefers and accepts Mr. Galbraith’s opinion in support of the Applications for the reasons set out below. Consequently, the Appeal is allowed and the relief sought by the Appellant is approved.

Relief being sought

10To facilitate the Proposed Development, the Applicant is seeking an OPA to permit a site-specific density of 56 units per hectare, whereas a maximum density of 40 units per hectare is permitted for the current Low/Medium Density Residential Designation.

11The purpose of the requested ZBA is to rezone a majority portion of the Subject Lands from R4 (Residential) to RM3 (Multiple Residential) to allow the proposed type of development, as well as to rezone the northern portion to OS1 (Open Space) to protect the locally significant environmental feature located there. Site-specific zoning regulations are also being sought to:

• Permit a minimum front yard setback of 4.5 metres for the stacked townhouse block and 3.36 metres for the street fronting townhouses; and

• Permit a minimum rear yard setback of 5.8 metres for the stacked townhouse block and 6.44 metres for the street-fronting townhouses.

SURROUNDING LANDS

12The characteristics of the Subject Property and the surrounding area are not in dispute. The following evidence was provided by Mr. Galbraith.

13The Subject Property has a lot area of 0.539 hectares with approximately 136 metres of frontage onto Clover Avenue, which extends from Meyers Road at the south to a dead-end terminus north of the property at Copperfield Park. At present, the Subject Property is occupied by a single detached raised bungalow/side-split dwelling located toward the northern portion of the property.

14More broadly speaking, the Subject Property is located toward the south end of the City, while Meyers Road is a major Regional Road providing an east-west connection through south Cambridge. Along Meyers Road, which is within the City’s Built-Up Area, there is a range of land uses within proximity of the Subject Property, including institutional uses, educational facilities, and a mixed-use plaza east of Meyers Road and Lisbon Pines Drive. The Subject Property is also approximately two kilometers away from a major commercial node located at Dundas Street and Franklin Boulevard.

15The Subject Property is additionally located in proximity to bus stops operated by the Region of Waterloo/Grand River Transit (“GRT”), including stops for GRT Route 50 on both the north and south sides of Meyers Road, immediately west of its intersection with Clover Avenue.

16Mr. Galbraith further drew the Tribunal’s attention to a number of townhouse and stacked townhouse development projects that have taken place in the past several years within the general vicinity of the Subject Property. While the fact that these townhouse and stacked townhouse development projects exist are not in dispute, there is an obvious dispute between the parties insofar as to whether the proximity of these projects is sufficiently close to constituting the ‘neighbourhood area’ of the Subject Lands.

uncontroverted Planning Evidence and Findings

17As stated above, the City does not contest Mr. Galbraith’s planning evidence except where it touches on an urban design/compatibility component. Nevertheless, the Tribunal is obliged to consider such uncontroverted evidence insofar as the onus is on the Applicant to demonstrate that the requested relief satisfies the necessary statutory tests.

18Setting aside the parties’ contested issues associated with urban design/compatibility, the Tribunal received no evidence to dispute Mr. Galbraith’s opinions or his conclusions from a planning standpoint. The Tribunal therefore accepts Mr. Galbraith’s uncontroverted evidence in this regard, finding that the proposed development constitutes an orderly development that contributes to the adequate provision of a full range of housing in an appropriate location for growth and development. Furthermore, the Tribunal finds that the proposal is policy-supportive by making efficient use of existing municipal infrastructure, including municipal water and sewage, and that it is also transit-supportive in accordance with the applicable policies.

19Moreover, with the proposal adding sidewalks and a turnaround at the end of Clover Avenue, the development promises to improve existing infrastructure to the benefit of public safety and pedestrian orientation. Additionally, given that the proposal includes re-zoning a portion of the Subject Property to Open Space One (OS1) to restrict the use of the northern portion to environmental management-related uses and to prohibit the development and site alteration, the Tribunal finds that the development appropriately contemplates and addresses the protection of ecological systems in accordance with various environmental policies.

20Upon the above findings, and while still setting aside questions of urban design/compatibility, the Tribunal concludes that the development has appropriate regard to matters of provincial interest, is consistent with the PPS, conforms to the Growth Plan and applicable municipal plans, and it represents good planning in the public interest. As a result, the Tribunal finds that approval of the subject Applications clearly turns on whether the Tribunal accepts Mr. Galbraith’s or Ms. Jay’s evidence and opinions respecting compatibility from an urban design standpoint.

urban design/compatibility

21The City submits that optimal and compatible intensification at the Subject Property requires careful consideration of urban design to ensure that the existing character of the neighbourhood is respected. The City further contends that stacked townhouses are not compatible with the surrounding neighbourhood character as the elements inherent in their design do not respect the character of the neighbourhood as required by the City OP. The City further indicates that it has no issue with the street townhouse element of the proposal, while it is noteworthy that the City uses only the residences located on Clover Avenue as comparables when conducting its compatibility analysis. The City submits in conclusion that the proposed ZBA does not conform to the City OP and therefore cannot be approved pursuant to s. 24(1) of the Act.

22On the other side of the argument, the Applicant contends that the proposal, including the stacked townhouse portion, is sufficiently compatible with the existing neighbourhood for the proposal to be deemed in conformity with the City OP. Its compatibility analysis includes not only the residences on Clover Avenue, but also those within the greater surrounding neighbourhood which happen to include even taller stacked townhouses. Additionally, it is the position of the applicant that a conformity analysis concerning the City OP involves a balancing approach, insofar as the City’s compatibility policies do not simply trump all other policies of the OP; for example, those policies which support the adequate supply of a mixed variety of housing options. From the Applicant’s standpoint, they submit that the balance of applicable policies tips in their favour, given that all of the other applicable policies support approval, and the proposed development is sufficiently compatible to not tip the analysis against them.

23On these points, the Tribunal generally accepts the Applicants submissions insofar as the City’s compatibility policies do not supersede all other policies of the City’s OP, and a compatibility analysis should also not be limited to only including the homes on Clover Avenue (residence within a greater area should also be included).

24While the City expressly acknowledges that no particular planning policies of the OP can have the effect of trumping all other policies, much of its submissions suggest the opposite, insofar as it contends that the Applications must fail because the proposal does not rigidly conform to the City’s compatibility policies despite conforming to all other policies of the City’s OP. This is akin to saying that ‘one bad apple spoils the bunch’, which is not how a balancing exercise works in a planning policy analysis. Rather, in a case such as this, where the proposal clearly adheres to every other planning policy applicable to the matter, the Tribunal finds that compatibility need not be perfect, provided that it is not grossly incompatible.

25Moreover, as pointed out by Mr. Galbraith, some of the housing on surrounding streets include stacked townhouses which are even taller than those of the proposed Applications (i.e. the four-storey stacked townhouses at the southwest corner of Myers Road and Franklin Boulevard). As mentioned above, the Tribunal finds that Ms. Jay should have included such housing as part of her compatibility analysis. Furthermore, the Tribunal finds that, had she done so, it would be very difficult to suggest that the proposed three-storey stacked townhouses are incompatible within such a broader context.

26Continuing with its submissions, the City provided a helpful summary of the applicable City OP policies pertaining to compatibility from an urban design standpoint. For example, s. 5.1 lists the City’s objectives to provide a foundation for Urban Design policies of the OP:

a) create an attractive, accessible, safe and healthy built environment;

b) enhance connectivity to allow for ease of travel throughout the city by multiple modes of transportation;

c) protect and enhance public views and vistas of natural and built features;

d) achieve high quality design for the public and private realm;

e) ensure compatibility in scale, form, massing and height transition between new development and existing buildings and adjacent neighbourhoods while being sensitive to the context;

f) encourage the incorporation of sustainable design features into the built environment;

g) promote a high standard of urban design as a key factor in establishing attractive and well integrated development throughout the community;

h) integrate urban design into the development approval and decision making processes of the City;

i) ensure that development is sensitive to and respectful of the physical and functional identity and the heritage attributes of Cambridge;

j) allow for creativity in design expression while ensuring compatibility and quality of development;

k) design our community at the pedestrian scale in support of fostering social interaction, active streetscapes and walkable neighbourhoods; and

l) prepare and use urban design guidelines and standards.

27The City further drew the Tribunal’s attention to policy 8.4.2.1 of the City OP, which directs compatible infill within “residential communities”:

The City will encourage development in the Urban Growth Centre, Community Core Areas, Nodes, Regeneration Areas, Reurbanization Corridors, Major Transit Station Areas and in residential communities which is compatible with the location, density and other characteristics of neighbouring land uses. Factors to be taken into consideration in assessing the compatibility of development include:

a) the density, scale, height, massing, visual impact, building materials, orientation and architectural character of neighbouring buildings and the proposed development […]

28The City continued to highlight applicable sections of the City OP pertaining to urban design/compatibility, including policy 8.4.2.2, which directs “[i]nfill, intensification and redevelopment within existing neighbourhoods [to] be minor in nature and […] compatible with the surrounding neighbourhood character”, listing the following to be considered in assessing whether a development is minor in nature:

a) comparable building height, generally within two storeys of neighbouring buildings; [emphasis added]

b) massing and scale;

c) similar lot coverage and side yard setbacks to neighbouring housing;

d) maintaining the predominant or average front yard setback;

e) built form that respects the façade details and materials of neighbouring housing, including garage width, porches, screening and architectural details;

f) transportation implications; and

g) appropriate parking arrangements and traffic movement.

29The City confirmed (through the testimony of Ms. Jay) that the City OP defines “compatibility” as:

development that, although it is not necessarily the same as or similar to existing buildings or uses in the vicinity, nonetheless exists in harmony with or enhances an established community. The development will not have a physical or functional adverse impact on surrounding properties

30The City further drew the Tribunal’s attention to policy 2.6.1.8 of the City OP, regarding intensification within the Built-up Area:

Infill, intensification and redevelopment within existing neighbourhoods will be minor in nature and will be designed to respect existing character and provide connections and linages where possible.

31Despite the clear wording of the above policies, however, the City nevertheless contends through its submissions and reference to Ms. Jay’s evidence that compatibility requires development “to fit and reinforce the character of the area”. The Tribunal cannot find such wording in the City’s OP policies, as presented, and finds that such language sets a higher threshold than what is required. The Tribunal further finds that this erroneous basis underpins much of the City’s evidence and submissions, leading to what the Tribunal finds to be problems with its conclusions.

32The Tribunal finds that the policies of the City OP are less rigid than what is proposed by the City, and such policies are principally concerned with infill developments being capable of “exist[ing] in harmony with […] an established community” and “not hav[ing] a physical or functional adverse impact on surrounding properties”. This is notably reflected in the evidence of Mr. Galbraith and submissions of the Applicant. In this respect, the Tribunal finds that the City provided no evidence to show that the proposed development would lack harmony with the established community and/or have any adverse impact on area residents.

33Continuing on this point, the Tribunal finds that the City’s erroneous focus on requiring the proposal “to fit and reinforce the character of the area” is reflected in its criticism of Mr. Galbraith’s urban design analysis. In that criticism, the City alleges that his analysis is inadequate for failing to appreciate very fine differences between what is proposed to be built and the characteristics of the existing residences in the immediate area. Through these critical submissions, the City delves into the minutia of the effects of grade changes in relation to height of the proposed buildings and the number of risers in the steps proposed to reach the front doors. The Tribunal does not accept these criticisms, however, and instead finds that Mr. Galbraith’s analysis was sufficiently detailed, while the City’s focus on such fine details goes too far for the purpose of assessing the present OPA and ZBA Applications from a compatibility standpoint.

34Furthermore, Ms. Jay’s evidence and the City’s submissions gloss over the City’s policy factors to consider when assessing whether the present proposed development is “minor in nature” pursuant to the OP. Despite the policy expressly stating that building height, which is within two storeys of neighbouring buildings, is indicia of “minor in nature”, the City contends that just one additional storey in the present case is incompatible. While acknowledging that Ms. Jay opined that grade-changes must also be considered, as well as the number of storeys, to assess compatibility from a height standpoint, the Tribunal did not receive satisfactory evidence from the City to illustrate how grade-changes on the Subject Property are enough to make the proposed heights incompatible.

35Additionally, Ms. Jay and the City both contend that the subject Applications were deficient insofar as a detailed urban design study (including street classification, surrounding lot sizes, built form typology, building height not only in storeys but in metres, building access and parking, front yard, side yard and rear yard setbacks, topography, streetscape, important views and architectural design) was not provided at the application stage of the process. Mr. Galbraith and the Applicant retorted that an Urban Design Brief was provided, as required by the City’s planners, and it was accepted as being complete. Furthermore, the Applicant pointed out that such built form details, such as those now being demanded by the City, are typically addressed at the site plan stage. As such, the Applicant submits, the Applications were not deficient from any standpoint, including with regards to Urban Design details.

36On this point, the Tribunal accepts the Applicant’s submissions, finding nothing in the OP, as presented, which requires a more detailed Urban Design Study to be submitted as part of the Applications. The Tribunal further finds that there is sufficient detail in the materials presented to the Tribunal to come to conclusions respecting compatibility from an urban design standpoint.

CONCLUSIONS

37As detailed above, the Tribunal prefers Mr. Galbraith’s evidence and accepts the submissions of the Applicant as it relates to questions of compatibility from an urban design standpoint, as well as from a land use planning standpoint. This includes, as it relates to Mr. Galbraith’s opinions regarding urban design/compatibility, questions associated with setbacks, orientation of Block 2’s front doors to the rear of the property, the number of front stairs to reach the front doors, parking and access adjacent and along the rear yard of the land located at 516 Myers Road, as well as the built form of stacked townhouses in general.

38Having come to these conclusions, the Tribunal further finds that the proposed development is sufficiently compatible with the greater area of the neighbourhood (including areas just beyond Clover Avenue), comparing the density, scale, height, massing, visual impact, building materials, orientation and architectural character of neighbouring buildings. Correspondingly, the Tribunal finds that the subject Applications contemplate development which is in conformity with the City OP, and, thus, satisfies the requirements of s. 24(1) of the Act.

39In coming to the above conclusions, the Tribunal confirms that it has had sufficient regard for the decision of City Council to reject the Applications, pursuant to s. 2.1(1)(a) of the Act, and, similarly, it has had sufficient regard for the recommendations of the City planning staff in support of the Applications, pursuant to s. 2.1(1)(b) of the Act.

Bill 150

40Since the conclusion of the merit hearing held by the Tribunal, and prior to the issuance of this decision, the Tribunal has reached out to the Parties to seek input if the passing of Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023, which received Royal Assent on December 6, 2023, had any impacts on the potential outcome of this matter. The Applicant responded to state that Bill 150 does not impact the matter that was heard (the City did not respond). The Tribunal accepts this response and similarly finds that Bill 150 does not impact the matter.

ORDER

41THE TRIBUNAL ORDERS that;

1. the appeal is allowed, in part, and the Official Plan for the City of Cambridge is amended as set out in Attachment 1 to this Order; and

2. the appeal is allowed, in part, and By-law No. 150-85 of the City of Cambridge is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of the City of Cambridge to assign a number to this By-law for record keeping purposes.

42The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS 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.

ATTACHMENT 1

ATTACHMENT 2