Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 06, 2024

CASE NO(S).: OLT-23-000717

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

Applicant and Appellant: BPR Development Inc.

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

Description: To permit the facilitation of the creation of 7 residential dwellings

Reference Number: 2022-02

Property Address: 68 Topham Boulevard

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-000717

OLT Lead Case No.: OLT-23-000717

OLT Case Name: BPR Development Inc. v. Welland (City)

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: BPR Development Inc.

Subject: Proposed Plan of Subdivision – Refusal by Approval Authority

Description: To permit the facilitation of the creation of 7 residential dwellings

Reference Number: 26CD-14-23001

Property Address: 68 Topham Boulevard

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-000718

OLT Lead Case No.: OLT-23-000717

OLT Case Name: BPR Development Inc. v. Welland (City)

Heard: December 15, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
BPR Developments Inc.	Sara Premi
City of Welland	Laura Bubanko, Caitlin Woodsford

DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1These appeals arise following the refusal by the City of Welland (“City”) regarding applications by BPR Developments Inc. (“Applicant”) for a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Vacant Land Condominium (“Draft Plan”) with respect to lands municipally known as 68 Topham Boulevard (“Subject Property”) in the City.

2This matter has come before the Tribunal as a Settlement Hearing. The Tribunal confirms that it has received, reviewed and considered the following materials and submissions:

a) the uncontested opinion evidence of Susan Smyth, a land use planner retained by the Applicant, provided in her testimony and her comprehensive Affidavit sworn November 28, 2023;

b) the uncontested testimony of Taylor Meadows, a land use planner for the City, who was summoned by the Applicant;

c) the Participant statements of George Sportel, Linda Warren Camus and Michelle Pilotte;

d) the draft instruments, submitted by the Parties, on consent; and

e) the draft Order, submitted by the Parties, on consent.

SUBJECT PROPERTY AND BACKGROUND

3The Subject Property is located at the terminus of Topham Boulevard and is generally flat with full access to municipal services. It has a total area of 3,510 square metres (“sq. m”) and is currently vacant. Surrounding land uses are mostly Low Density Residential, with the land to the west designated Open Space (containing the Stop 19 Pathway). In addition, the urban boundary between the City and the Town of Pelham is located further to the west.

4The Subject Property is located within the City’s Urban Area boundary, designated as Low Density Residential and zoned as Residential – Low Density – RL1.

5The proposed ZBA seeks to rezone the Subject Property from Residential Low-Density 1 - RL1 to Residential Low-Density 2 - RL2 and would accommodate the proposed townhouse dwellings at a built density of 20 units per net hectare.

6The proposed Draft Plan is to facilitate the creation of seven residential dwellings, consisting of four single detached dwellings and three townhouse units, all to be accessed by a private road connection from Topham Boulevard.

7Three Participants were granted status at the previous CMC. Their concerns included the proposed increase in density, the potential increase in traffic, the inadequacy of the current road, the safety of seniors and pedestrians, waste collection as well as the lack of fit of the proposal with the existing neighbourhood.

LEGISLATIVE FRAMEWORK

8Regarding the ZBA, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable provincial plans and Official Plans, in this case the Provincial Policy Statement (“PPS”), A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”), the Region of Niagara’s Official Plan (“ROP”) (2014) and (2022) and the City’s Official Plan (“OP”).

9With respect to the Draft Plan, the Tribunal shall also have regard to the criteria set out in s. 51(24) of the Planning Act (“Act”) and pursuant to s. 51(25) of the Act, the Tribunal may also consider and impose conditions that are determined to be reasonable, having regard to the nature of the proposal.

10In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and, in general, regard for the related decisions of the municipality and the information considered by it (as required under s. 2.1(1) of the Act) and be satisfied that the proposal represents good planning and is in the public interest.

EVIDENCE

11Upon review of their Curricula Vitae and Acknowledgment of Expert’s Duty Forms, the Tribunal qualified Ms. Smyth and Mr. Meadows to provide expert opinion evidence in Land Use Planning.

12It was Ms. Smyth’s overall opinion that the proposal has regard for matters of provincial interest, conforms with the GP, the ROP (2014) and (2022) and the OP, is consistent with the PPS and represents good land use planning. She also stated that the Draft Plan meets the criteria provided in s. 51(24) of the Act.

13Ms. Smyth highlighted the Recommendation Report (included as Exhibit 3 in her Affidavit), authored by Mr. Meadows, which contained both a planning analysis and response to the concerns of neighbours, and which recommended approval of the applications subject to conditions.

14Ms. Smyth also opined in her Affidavit (at paragraph [29]) that the proposal represents good land use planning as:

1. The Applications support the policies for intensification and the efficient use of land and help the City meet their residential target objectives.
2. The Applications support policies for infill residential that provides for a range and mix of housing that is cost effective and convenient to people with different lifestyles.
3. The proposed development will appropriately integrate with the existing and newer residential uses in the immediate area.
4. The Subject Lands do not contain any significant natural heritage or natural hydrological features and therefore have no negative impacts as a result of the development.
5. The proposed development will effectively utilize the existing municipal services and infrastructure thereby contributing to municipal and environmental sustainability.
6. The proposed development will implement the principles of urban design and represents good land use planning.

15Ms. Smyth explained that in October 2023, City Council considered and indicated support for the proposal subject to: a) the inclusion of a visual barrier to obstruct the view of the proposed garbage pads; b) the inclusion of two additional parking spots for visitors; and c) the provision of a photometric plan to the City’s satisfaction. She confirmed that the settlement proposed includes the visual barrier and additional parking and that the plan has been provided.

16Regarding the remaining participant concerns, Ms. Smyth stated that the proposal would have “main access from Topham Boulevard, [a] local road maintained year round and equipped to accept localized traffic volumes and the private road ….” She highlighted that this had been confirmed by the City’s Engineering department, which expressed no significant concerns regarding traffic. She opined that the proposal does fit with the existing and planned neighbourhood as the majority of units (four units) also feature single detached dwellings, and the townhouse units (three units) were of a comparable size, design, scale and height to the surrounding dwellings. She also stated that the proposal provided ample room for parking in front of the proposed dwellings with sufficient amenity space in the backyard.

17Ms. Smyth opined that the proposed conditions were reasonable and had regard to the nature of the proposed development. It was her opinion that the conditions should be imposed by the Tribunal.

18The Tribunal also heard from Mr. Meadows, who was summoned to speak to the City’s support for the settlement. In his testimony, he opined that the ZBA was consistent with the PPS, conforms to the applicable provincial and Official Plans, as well as that the Draft Plan met the criteria found in s. 51(24). He confirmed that the proposal was representative of good land use planning and warranted approval. He also confirmed that the proposed conditions of Draft Plan approval were reasonable and appropriate and should be imposed.

IMPACT OF BILL 150

19Since the conclusion of the Hearing held by the Tribunal and prior to the issuance of this Decision, the Tribunal reached out to the Parties to seek input as to whether the passing of Bill 150, the Planning Statute Law Amendment Act, 2023 which enacts the Official Plan Adjustments Act 2023 (“OPAA”) and received Royal Assent on December 6, 2023, had any impacts on the potential outcome of this matter.

20All Parties provided responses to state that Bill 150 does not impact the matter that was heard. The Tribunal is satisfied that this matter is not impacted by Bill 150.

FINDINGS

21The Tribunal accepts the uncontroverted opinion evidence of Ms. Smyth and Mr. Meadows as provided, and similarly finds that the proposal is consistent with the PPS, conforms to the GP, the ROP and the OP, has regard for s. 51(24) of the Act, reflects principles of good land use planning and is in the public interest.

22The Tribunal finds that the proposal is consistent with planning policies that promote infilling and intensification, is transit supportive, will create additional housing units in an appropriate location for growth and will provide additional housing types in an area with appropriate servicing.

23The Tribunal is satisfied that the concerns of the Participants have been considered and appropriately addressed by the settlement proposal.

24The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act, and to the decisions of the Municipality and the information it had before it as required under s. 2.1(1) of the Act.

25The Tribunal finds that the proposed conditions are reasonable pursuant to s. 51(25) and will impose the conditions.

ORDER

26The Tribunal Orders that the appeals are allowed, and:

a) Zoning By-law 2017-117 is hereby amended and approved as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the City of Welland to format and assign a number to this By-law for record keeping purposes; and,

b) The Draft Plan of Vacant Land Condominium shown on the plan prepared by Chamber and Associates Surveying Ltd., dated January 6, 2023, comprising Part of Lot 33 – Plan 664 and Part of Lot 176, Geographic Township of Thorold, in the City of Welland, Regional Municipality of Niagara is approved subject to the fulfillment of the conditions set out in Attachment 2 to this Order;

27AND THE TRIBUNAL ORDERS that pursuant to subsection 51(56.1) of the Planning Act, the City of Welland shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of condominium for the purposes of subsection 51(58) of the Planning Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

“S. Bobka”

S. BOBKA 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

Conditions

1. That the Owner enter into a Condominium Agreement with the City of Welland;

2. That no grading or construction work commence until such time as the Condominium Agreement has been entered into and financial securities are in place;

3. That the Owner shall submit full engineering design drawings to the City of Welland’s Engineering Division for review and approval, including Site Servicing, Site Grading, General Notes and Details, Sediment and Erosion Control, Pre-Development and Post-Development Storm Drainage Area Plans, Sanitary Drainage Area Plan, Topographic Survey, and Landscaping Plans;

4. That the Owner shall submit a Functional Servicing Report to the City of Welland’s Engineering Division for review and approval. This report shall show that the receiving sanitary sewers have sufficient capacity, and that adequate fire flows, as per the City’s requirements, are provided;

5. That the Owner shall submit a Stormwater Management Brief and associated drawings demonstrating that stormwater has been managed on site to a satisfactory level that does not adversely affect the subject lands or adjacent properties;

6. That the Owner shall construct all municipal infrastructure in accordance with the City of Welland Municipal Standards, Ontario Provincial Standards, the Issued for Construction Engineering drawings set, and any other standards that may apply;

7. That the Owner shall grant, in the Condominium Agreement, the City, its servants, agents and assigns permission to enter upon the lands for the purpose of the inspection and maintenance of all water meter chambers and ensure that the area in and around the water meter chamber is made free and clear of all encumbrances, at all times, which may interfere with such tasks;

8. That the Owner shall, in the Condominium Agreement, ensure that no storm, surface water, roof water, or weeping tiles, is discharged into the sanitary sewer system;

9. That the Owner shall, prior to any construction taking place within the Municipal road allowance, obtain a Site Servicing Road Occupancy Permit. Applications must be made through the Engineering Division and the Traffic Division of City of Welland;

10. That the Owner shall complete and fully commission all internal and external servicing works, as specified by the Condominium Agreement, prior to the construction of any structures within the condominium;

11. That the Owner shall be responsible for all costs associated with servicing the development, including restoration. Restoration is to be as per City standards to existing conditions or better;

12. That the Owner shall provide confirmation that the property known municipally as #188 Milkweed Trail continues to be serviced by the sanitary sewer and watermain through the subject property;

13. That the Applicant/Owner receive acceptance from the Ministry of Citizenship and Multiculturalism (MCM) for the archaeological assessment report titled ‘Stage 1-2 Archaeological Assessment 136 Milkweed Trail’, prepared by Detritus Consulting Ltd. (dated January 29, 2021) and the ‘Stage 1-2 Archaeological Assessment 60 Topham Boulevard’, prepared by Detritus Consulting Ltd. (dated November 2, 2022). If the Ministry requires further archaeological work to be completed prior to acknowledging this report, these report(s) must also be submitted to and acknowledged by the Ministry, to the satisfaction of Niagara Region, prior to clearance of this condition. No demolition, grading or other soil disturbances shall take place on the subject property prior to the issuance of a letter from MCM through Niagara Region, confirming that all archaeological resource concerns have met licensing and resource conservation requirements;

14. That the condominium agreement contain the following clauses:

“Should deeply buried archaeological remains/resources be found during construction activities, all activities impacting archaeological resources must cease immediately, and the proponent must notify the Archaeology Programs Unit of the Ministry of Citizenship and Multiculturalism (MCM) (416-212-8886) and contact a licensed archaeologist to carry out an archaeological assessment in accordance with the Ontario Heritage Act and the Standards and Guidelines for Consultant Archaeologists.

In the event that human remains are encountered during construction, all activities must cease immediately and the local police as well as the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-326-8800) must be contacted. In situations where human remains are associated with archaeological resources. MCM should also be notified to ensure that the site is not subject to unlicensed alterations which would be a contravention of the Ontario Heritage Act.”

15. That the Owner/Developer provides a written acknowledgement to Niagara Region Planning and Development Services Department stating that draft approval of this condominium does not include a commitment of servicing allocation by Niagara Region as servicing allocation will not be assigned until the plan is registered and that any pre-servicing will be at the sole risk and responsibility of the Owner/Developer;

16. That the Owner/Developer provides a written undertaking to Niagara Region Planning and Development Services Department stating that all Offers and Agreements of Purchase and Sale or Lease, which may be negotiated prior to registration of this condominium shall contain a clause indicating that servicing allocation for the condominium will not be assigned until the plan is registered, and a similar clause be inserted in the Condominium Agreement between the Owner/Developer and the City;

17. That prior to final approval for registration of this plan of Condominium, the Owner shall submit the design drawings [with calculations] for the sanitary and storm drainage systems required to service this development and obtain Ministry of Environment, Conservation and Parks Approval under the Transfer of Review Program or approval through the new Consolidated Linear Environmental Certificate of Approval;

18. That the Owner/Developer ensure that all streets and development blocks can provide an access in accordance with the Niagara Region’s Corporate Policy and By-laws relating to the curbside collection of waste and recycling;

19. That the Owner/Developer shall comply with Niagara Region’s Corporate Policy for Waste Collection and complete the Application for Commencement of Collection and Indemnity Agreement prior to Regional curbside waste collections services commencing;

20. The following warning shall be included in the Condominium Agreement and inserted into all Offers and Agreements of Purchase and Sale or Lease for each property to survive closing:

“Purchasers are advised that a property executed Indemnity Agreement must be submitted from the private property owner(s) or property management company with signing authority to Niagara Region in order to maintain waste collection services on private roadway(s) and/or property(ies).”

21. That the Owner shall complete to the satisfaction of the Director of Engineering of the City of Welland and Canada Post:

a. Include on all offers of purchase and sale, a statement that advises the prospective purchaser:

i. That the home/business mail delivery will be from a designated Centralized Mail Box.

ii. That the developers/owners be responsible for official notifying the purchasers of the exact Centralized Mail Box locations prior to the closing of any home sales.

b. The Owner further agrees to:

i. Work with Canada Post to determine and provide temporary suitable Centralized Mail Box locations which may be utilized by Canada Post until the curbs, boulevards and sidewalks are in place in the remainder of the subdivision.

ii. Install a concrete pad in accordance with the requirements of and in locations to be approved by Canada Post to facilitate the placement of Community Mail Boxes.

iii. Identify the pads above on the engineering servicing drawings. Said pads are to be poured at the time of the sidewalk and/or curb installation within each phase of the plan of subdivision.

iv. Determine the location of all centralized mail receiving facilities in co-operation with Canada Post and to indicate the location of the centralized mail facilities on appropriate maps, information boards and plans. Maps are also to be prominently displayed in the sales office(s) showing specific Centralized Mail Facility locations.

c. Canada Post’s multi-unit policy, which requires that the Owner/Developer provide the centralized mail facility (front loading lockbox assembly or rear-loading mailroom [mandatory for 100 units or more]), at their owner expense, will be in effect for buildings and complexes with a common lobby, common indoor or sheltered space.

22. That the Owner/Developer install a streetlight which is to be located where the proposed access connects with Topham Boulevard;

23. That a subsurface Geotechnical Report prepared by a qualified geotechnical engineer will be required at the time of building permit application submission;

24. Parkland Dedication shall be established in accordance with the By-law in effect at the time of collection;

25. In the event that easement(s) are required to service this development, and any future adjacent developments, the applicant will provide the easement(s) to the appropriate utility or public body at no cost;

26. That prior to granting Approval for the Final Plan, the City of Welland will require written notice from the following upon their respective conditions having been met satisfactorily:

Region of Niagara: 13-20 Canada Post: 21

27. That if Final Approval is not given to this Plan within three (3) years of the approval date and no extensions have been given, Draft Approval shall lapse. If the Owner wishes to request extension to Draft Plan Approval, a written request with reasons why the extension is required and the applicable application fee, must be received by the City prior to the lapsing date.