Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 08, 2024
CASE NO(S).: OLT-22-004282
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Dementia Care (London) Inc.
Applicant and Appellant: 2399731 Ontario Ltd. c/o Westdell Development Corporation
Subject: By-law No. Z.-1-223042
Description: To permit a development of three mixed-use buildings with 490 residential units
Reference Number: Z.-1-223042, Z-9199
Property Address: 689 Oxford Street West
Municipality/UT: London/Middlesex
OLT Case No.: OLT-22-004282
OLT Lead Case No.: OLT-22-004282
OLT Case Name: Dementia Care (London) Inc. v. London (City)
Heard: February 26, 2024 by video hearing (“VH”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2399731 Ontario Ltd. c/o Westdell Development Corporation (Appellant/Applicant) | Analee Baroudi |
| City of London (“City”) | Christina McCreery Aynsley Hovius |
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON February 26, 2024 AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1This appeal concerns the passing of Zoning By-law No. Z.-1-223042, a Zoning By-law Amendment (“ZBA”) to the City’s comprehensive Zoning By-law Z.-1. Originally, there were two appellants, 2399731 Ontario Ltd. c/o Westdell Developments Corporation (collectively “Westdell”)1 and Dementia Care (London) Inc.; however, Dementia Care (London) Inc. withdrew its appeal as of January 22, 2024.
2The ZBA at issue concerns lands owned by 2399731 Ontario Ltd. at 689 Oxford Street West. The history and context of this matter are succinctly set out in a decision dismissing the City’s motion to dismiss the appeals issued September 13, 2023, Dementia Care (London) Inc. v London (City), 2023 CanLII 85349 (ON LT).
3Disposition of the matter has now come before the Tribunal as a settlement motion.
4Generally speaking, the purpose of the ZBA is to change the zoning from a Highway Service Commercial/Restricted Service Commercial (HS1/HS3/RSC2/RSC4) Zone to a Residential Special Provision Bonus/Highway Service Commercial/Restricted Service Commercial (R9-7*B(_)/HS1/HS3/RSC2/RSC4) Zone to permit phased construction of 490 residential units in three buildings. Phase 1 of that proposed development involves the construction of the first building (“Building A”), while Phase 2 involves the construction of the two remaining buildings (“Building B” and “Building C”). There is no dispute between the parties about the appropriateness of this development from a planning policy standpoint.
5Furthermore, through the initial municipal application process, City staff and Westdell negotiated and came to an agreement whereby an increase in residential density would be provided to Westdell in exchange for site and building design concessions, underground parking, stacked parking adjacent to the railway, and the provision of affordable housing. Calculations related to the number of affordable housing units to be provided by Westdell amounted to 30 residential units. Once again, there is no dispute between the parties about these plans/agreement.
6However, a narrow dispute arose with the City insisting that the number of affordable housing units should be distributed evenly between the three proposed buildings; with 10 units of the total 30 units to be located within each of the three planned buildings. While the parties do not disagree regarding the total number of units (30) owed through the agreement, they differ on the method of calculating the number of units for each building. The City has simply divided the number of units evenly between each building, while Westdell calculates that it should only have to provide six units for Building A, but provide 11 units for Building B and 13 units for Building C. It is on this basis that Westdell appeals to the passing of the subject ZBA.
7The Tribunal has now been informed that the parties have reached a compromise in the interests of settlement, insofar as they agree that eight units of affordable housing shall be provided within Building A, 10 in Building B, and 12 in Building C.
8In support of the settlement, the Tribunal confirms that it has received, reviewed and considered the following materials and submissions:
a. Settlement Record of the City of London dated February 14, 2024, (marked as Exhibit 1) which includes:
i). the uncontested opinion evidence of Travis MacBeth, a Registered Professional Planner and full member of the Canadian Institute of Planners, contained in his comprehensive affidavit sworn February 7, 2024;
ii). Minutes of Settlement between Westdell and the City of London, dated February 12, 2024; and
iii). Draft Order jointly submitted to give effect to the relief sought; and
b. the Parties’ oral submissions in support of the settlement.
Decision and order
9The Tribunal understands that the aforementioned sworn affidavit evidence of Mr. MacBeth reflects the cooperative efforts of the Parties.
10The Tribunal accepts the opinion evidence of Mr. MacBeth as presented in his affidavit and similarly finds that the jointly proposed revised By-law No. Z.-1-223042 of the City of London has regard to those applicable matters of provincial interest found in section 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020, and conforms to the City’s Official Plan. The Tribunal further accepts and finds that the jointly proposed revised By-law No. Z.-1-223042 is consistent with the bonusing policy framework of the 1989 Official Plan and otherwise reflects principles of good land use planning.
11THE TRIBUNAL ORDERS that:
the appeal against By-law No. Z.-1-223042 of the City of London is allowed in part;
By-law No. Z.-1 is amended as set out in Attachment 1 to this Order; and
in all other respects, the appeal is dismissed.
“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.