Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 03, 2024
CASE NO(S).:
OLT-22-004400
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant
JM Market Grey Inc.
Applicant:
Weston Consulting
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit the incorporation of a proposed mixed-use building on the subject lands
Reference Number:
OP-02-2020
Property Address:
197 Market Street, 11 Grey Street, 150 George Street, 168 George Street, & 30 Marlborough Street
Municipality:
City of Brantford
OLT Case No.:
OLT-22-004400
OLT Lead Case No.:
OLT-22-004400
OLT Case Name:
JM Market Grey Inc. v. Brantford (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
Description:
To permit the incorporation of a proposed mixed-use building on the subject lands
Reference Number:
PZ-08-2020
Property Address:
197 Market Street, 11 Grey Street, 150 George Street, 168 George Street, & 30 Marlborough Street
Municipality:
City of Brantford
OLT Case No.:
OLT-22-004401
OLT Lead Case No.:
OLT-22-004400
Heard:
February 12, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
JM Market Grey Inc.
Mark Flowers Liam Valgardson
City of Brantford
Geoffrey Daley
Canadian National Railway Company
Max Reedijk Diana Betlej (in absentia) Katarzyna Sliwa (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1This matter involves a settlement hearing related to appeals filed by JM Market Grey Inc. (“Applicant”/“Appellant”) pursuant to s. 22(7) and 34(11) of the Planning Act (“Act”) against the failure of the City of Brantford (“City”) to make decisions within the statutory time frame regarding the Appellant’s Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (collectively “Applications”) relating to the properties known municipally as 197 Market Street, 11 Grey Street, 150 George Street, 168 George Street and 30 Marlborough Street (collectively “Property”).
2The Applications proposed to develop the Property with two 16-storey mixed-use buildings containing 216 residential dwelling units and 209.04 square metres (“sm”) of non-residential space on the ground floor.
3The Property is approximately 0.5 hectares and covers most of a city block within the City’s Downtown Urban Growth Centre, with approximately 84.4 metres (“m”) of frontage on Market Street, approximately 79.5 m of frontage on Grey Street, approximately 81.05 m of frontage on George Street and approximately 59.4 m of frontage on Marlborough Street.
4The Property is currently developed with various institutional, residential and commercial/retail uses with access points from all four streets. Surrounding land uses include residential and an entertainment facility to the north, residential, park and vacant land to the east, commercial, residential and home occupation uses to the south, and commercial and residential uses to the west.
5The Property is well-served by existing transit services within 500 m, including the Brantford Bus Terminal and the Brantford Train Station. In addition, a GO Transit Rail Station expansion has been proposed to extend to Brantford, and the Canadian National Railway Company (“CN”) rail corridor is located to the northwest of the Property.
6The Property is within the ‘Urban Growth Centre’ in the City Official Plan, 1987 (“COP-1987”) which was the Official Plan in force on the date the Applications were filed. The new City Official Plan, 2021 (“COP-2021”), which was approved on August 5, 2021, identifies the Property within the ‘Strategic Growth Areas’. Under COP-2021, the Property is further refined as within the ‘Upper Downtown Precinct’ and is designated ‘Downtown Urban Growth Centre’.
7The Property is zoned ‘General Commercial Exception 76 Zone’, ‘General Commercial Exception 19 Zone’, ‘Institutional Major Exception 6 Zone’ and ‘Residential Conversion Zone’ in the City Zoning By-law No. 160-90.
8The Applications were filed on March 3, 2020, and deemed complete by the City on April 1, 2020, with a statutory public meeting held on November 25, 2020. A resubmission of the Applications was filed on December 24, 2022, followed by a second resubmission on October 20, 2021.
9The Applications were appealed to the Tribunal on August 30, 2022. Post-appeal, a further resubmission was filed with the City with an increase in the residential unit count from 216 to 273 units, and an increased parking count from 252 to 266 spaces.
10At the Case Management Conference held on February 15, 2023, the Tribunal granted Party status to CN.
11On December 5, 2023, subsequent to the appeal of the Applications, the City endorsed a settlement of the Appeals subject to certain conditions and based on a further revised proposal for an 18-storey mixed-use building with a four-storey podium, 279 residential units and a total gross floor area of 34,286 sm (“Proposed Development”).
12The Tribunal received correspondence from the Appellant in advance of the hearing, advising that the Parties had settled the issues and requesting that the Tribunal convert the proceedings to a Settlement Hearing. The Parties sought approval of the proposed ZBA submitted as part of the Settlement (“Revised ZBA”). The OPA was determined to no longer be required due to the coming into force of COP-2021, which permits the Proposed Development.
13In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.
LEGISLATIVE FRAMEWORK
14When considering appeals filed pursuant to s. 22(7) and 34(11) of the Act, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Revised ZBA conforms with COP-2021.
15In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Revised ZBA represents good land use planning and is in the public interest.
WITNESSES
16Prior to the commencement of the hearing, the Tribunal received the Affidavits of Martin Quarcoopome and Scott Penton in support of the Settlement. The Tribunal qualified Mr. Quarcoopome, on consent, to provide expert opinion evidence in the area of land use planning, and Mr. Penton, on consent, to provide expert opinion evidence in the area of acoustics, environmental noise and vibrations.
LAND USE PLANNING EVIDENCE
17Mr. Quarcoopome provided background information on the Property, the surrounding area, the proposed use, and the history and processing of the Applications.
18With respect to the regulatory and policy context, Mr. Quarcoopome opined that the Revised ZBA has regard for the applicable matters of provincial interest pursuant to s. 2 of the Act, is consistent with the PPS, and is in conformity with the Growth Plan and COP-2021.
The Planning Act
19Mr. Quarcoopome opined that the Revised ZBA has regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, in particular the following subsections:
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems – as the Proposed Development will make use of existing services;
(j) the adequate provision of a full range of housing, including affordable housing – as the Proposed Development will provide a diverse range of housing types suitable for all age groups;
(k) the adequate provision of employment opportunities – as the Proposed Development has a mixed-use component providing for service-commercial uses at grade;
(p) the appropriate location of growth and development – as the Property is within the Downtown Urban Growth Centre which is a focal point for growth; and
(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 – as the built form will be subject to Site Plan Control, it fits the needs of the Property, the City and CN, and the streetscape will be improved and will adhere to the City’s streetscape guidelines. In addition, it introduces active elements on the ground floor with amenity spaces and retail uses.
Provincial Policy Statement
20Mr. Quarcoopome advised that he had considered the entirety of the PPS in formulating his opinion and opined that the Revised ZBA is consistent with the PPS, in particular:
Policies 1.1.1 and 1.1.2 related to managing and directing land use to achieve efficient and resilient development and land use patterns – as the Proposed Development will be an efficient use of land which will accommodate and contribute to a mix of housing types, support the optimization of existing infrastructure and be transit-supportive;
Policies 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4 and 1.1.3.5 related to settlement areas – as the Proposed Development proposes compact growth within an existing settlement area and a land use pattern that efficiently uses land and resources, is appropriate for the surrounding context, is both transit-supportive and enabling of active transportation, and contributes to intensification targets within the built-up area;
Section 1.2.6 related to land use compatibility – as the Proposed Development is planned to minimize adverse effects by mitigating potential nuisances to ensure land use compatibility;
Policies 1.3.1, 1.3.2.1, 1.3.2.6 and 1.3.2.7 related to employment areas – as the Proposed Development promotes economic development, competitiveness and long-term protection of employment areas by proposing commercial retail space at-grade;
Policy 1.5.1 related to promoting healthy, active communities – as the Proposed Development promotes active transportation and connectivity, along with space designed to accommodate social activity and recreation;
Policies 1.6.1, 1.6.3, 1.6.6.1, 1.6.6.2 and 1.6.6.7 related to infrastructure and public service facilities – as the Proposed Development is supported by existing public service facilities and infrastructure, and supports the optimization of existing amenities and improved efficiency;
Policies 1.6.7.1, 1.6.7.2, 1.6.7.3, 1.6.8 and 1.6.9 related to transportation systems, and transportation and infrastructure corridors – as the Proposed Development supports the adjacent higher-order transit options, is compatible with the existing and planned infrastructure, and will protect and promote the future planned rail facilities;
Policy 1.7.1 related to supporting long-term economic prosperity – as the Proposed Development responds to market-based needs for housing supply and supports the viability and vibrancy of the City’s Downtown Urban Growth Centre; and
Section 1.8 related to energy conservation, air quality and climate change – as the Proposed Development proposes a compact built form that encourages the use of active transportation.
Growth Plan
21Mr. Quarcoopome advised that he had considered the entirety of the Growth Plan in formulating his opinion and opined that the Revised ZBA conforms with the Growth Plan, in particular:
Section 1.2.1 related to guiding principles of the Growth Plan – as the Proposed Development will contribute to a complete community that supports healthy and active living, and supports the provision of a range and mix of housing options and unit sizes;
Policies 2.2.1.1, 2.2.1.2 and 2.2.1.4 related to managing growth – as the Proposed Development will accommodate growth within a planned strategic growth area where there are existing higher-order transit and public service facilities, and will support the achievement of complete communities by featuring a diverse mix of land uses with access to active transportation options;
Policy 2.2.2.3 related to intensification – as the Proposed Development proposes appropriate intensification of underutilized land in close proximity to existing higher-order transit;
Policies 2.2.3.1 and 2.2.3.2 c) related to urban growth centres and minimum density targets – as the Proposed Development is planned to accommodate significant population and employment growth within the Downtown Urban Growth Centre and will contribute to the minimum density target of 150 residents and jobs combined per hectare;
Policies 2.2.5.1, 2.2.5.2, 2.2.5.3, 2.2.5.5, 2.2.5.6, 2.2.5.7 c), 2.2.5.8, 2.2.5.13 and 2.2.5.15 related to employment – as the Proposed Development will promote economic development and competitiveness through a mix of land uses fostering the creation of a complete community;
Policies 3.2.1.1, 3.2.1.2, 3.2.1.4, 3.2.1.5, 3.2.2.1, 3.2.2.2, 3.2.4, 3.2.5.1 and 3.2.5.2 related to infrastructure to support growth – as the Proposed Development will provide for intensification within an area slated for multi-modal transportation, will utilize the existing infrastructure and will aid in the justification for future diversified transportation modes and infrastructure improvement projects in the strategic growth area, and help protect the long-term viability of the CN rail corridor; and
Policies 4.2.10.1 a), c) and i) and 4.2.10.2 a) related to climate change – as the Proposed Development will maximize the utilization of existing transit investments, in turn reducing automobile dependency.
City Official Plan
22Mr. Quarcoopome noted that the OPA was filed under COP-1987 but that COP-2021 has since been approved and permits the Proposed Development under the Upper Downtown designation, resulting in the OPA no longer being required.
23It was Mr. Quarcoopome’s opinion that COP-2021 supports the Proposed Development as:
it aligns with the intended development types within the Downtown Urban Growth Centre designation;
it meets the policy direction for high-rise residential buildings greater than 6 storeys;
it contributes to the Downtown Urban Growth Centre’s minimum density target of 150 residents and jobs combined per hectare by 2031;
it provides a diverse range of housing types suitable for all age groups, aiming to revitalize the downtown area;
it conforms to the mandated minimum building height of two storeys for structures along collector roads within the Upper Downtown Precinct; and
it is well-served by public transit and incorporates adequate parking.
24It was Mr. Quarcoopome’s opinion that the OPA is no longer required and the Revised ZBA conforms to COP-2021.
Zoning By-law
25As submitted by Mr. Quarcoopome, the Revised ZBA proposes to rezone the Property from certain commercial, institutional and residential zones to ‘General Commercial’ with a holding provision and site-specific development standards that will include establishing, among other things:
permitted uses and requirements for certain additional sensitive uses;
a maximum building height;
minimum building setbacks;
minimum landscape strips;
requirements for noise barriers adjacent to outdoor amenity areas; and
a definition of, and requirements for, ‘Enclosed Noise Buffers’ adjacent to Market Street and Grey Street.
26Mr. Quarcoopome noted that the holding provision contained in the Revised ZBA would require the following criteria to be met prior to the hold being removed:
- That the Applicant has submitted the following materials to the satisfaction of the Manager of Development Engineering:
Functional Servicing Report
Geotechnical Report
Transportation Impact Study
- That the Applicant has submitted building elevations to the satisfaction of the Chief planner / Director of Planning as part of the Site Plan Control application.
Conclusions
27It was Mr. Quarcoopome’s opinion that the Revised ZBA has regard for matters of provincial interest under the Act, is consistent with the PPS, and conforms with the policies and intent of the Growth Plan and COP-2021. He further opined that the Revised ZBA represents good planning, is in the public interest and is otherwise appropriate.
28In support of the Settlement, it was Mr. Quarcoopome’s recommendation that the OPA be dismissed and the Revised ZBA be approved.
ENVIRONMENTAL NOISE AND VIBRATION EVIDENCE
29Mr. Penton completed an Environmental Noise and Vibration Assessment (“ENVA”) for the Proposed Development to assess potential noise impacts on the Proposed Development from nearby sources. The ENVA addressed:
noise and vibration impacts from transportation sources, including local roadways and the CN ‘Dundas Subdivision’ railway corridor;
noise impacts from the nearby CN Brantford Rail Yard; and
noise impacts from other nearby commercial and industrial uses, including an autobody garage and a scrap metal site.
30Mr. Penton noted that the ENVA addressed the following relevant policies and guideline documents related to noise and vibration:
PPS;
COP-1987 and COP-2021;
Ministry of the Environment, Conservation and Parks (“MECP”) Guideline D-1, Land Use Compatibility, and its Procedure documents;
MECP Guideline D-6, Compatibility Between Industrial Facilities and Sensitive Land Uses and its Procedure documents;
MECP Publication NPC-300, “Environmental Noise Guideline: Stationary and Transportation Sources – Approval and Planning”, dated October 2013 (“NPC-300”); and
The Railway Association of Canada / Federation of Canadian Municipalities Guidelines for New Development in Proximity to Railway Operations, May 2013.
31Mr. Penton advised that the ENVA includes an assessment of MECP D-Series Guidelines, including Guideline D-6 and other applicable noise and vibration guidelines, and includes receptor-based noise mitigation measures to ensure the applicable guidelines are met. It was his opinion that, with the inclusion of the noise mitigation measures outlined in the ENVA, “the requirements of MECP Publication NPC-300 will be met, and therefore the requirements of Guideline D-6 will be met”. He advised that the noise mitigation measures are being secured through a Development Agreement between the Applicant and CN, and include:
a) The use of a Class 4 Area designation under MECP Publication NPC-300;
b) the use of enclosed noise buffers on the northern and western residential facades;
c) upgraded wall and window façade constructions;
d) noise barriers;
e) warning clauses to be included in agreements or documents registered on title for the residential units and included in all agreements of purchase and sale or lease, and all rental agreements.
32Mr. Penton explained that the Class 4 Area designation is intended to allow for redevelopment projects in proximity to existing stationary sources of noise, and has higher guideline requirements than the Class 1 Area designation for urban areas.
33Mr. Penton proffered that the noise and vibration experts for CN and the City agreed that the proposed mitigation measures are appropriate, and that, with the inclusion of the mitigation measures:
the Class 4 Area sound level limits will be met for the CN Brantford Rail Yard;
the Class 4 Area sound level limits will be met for other stationary sources in the area;
the transportation noise and vibration guidelines will be met;
the transportation noise mitigation requirements under NPC-300 are addressed; and
it is appropriate for the Property to be reclassified as a Class 4 Area under NPC-300.
34It was Mr. Penton’s recommendation that the Tribunal reclassify the Property as a Class 4 Area under NPC-300. He proffered that the Revised ZBA incorporates certain mitigation measures identified in the ENVA and opined that it is appropriate from an acoustical perspective.
ANALYSIS AND FINDINGS
35The Tribunal accepts the uncontroverted testimony and evidence of Mr. Quarcoopome. In consideration of his evidence and the resulting settlement of the appeal, the Tribunal is satisfied that the Revised ZBA has sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the Revised ZBA is consistent with the PPS and is in conformity with the Growth Plan and COP-2021.
36The Tribunal finds that the holding symbol is appropriate for the Revised ZBA and will ensure any outstanding technical matters are adequately addressed prior to the Proposed Development being permitted.
37The Tribunal accepts the uncontroverted testimony and evidence of Mr. Penton. In consideration of his evidence and the resulting settlement of the appeal, the Tribunal is satisfied that the Property should be reclassified as a Class 4 Area under NPC-300.
ORDER
38THE TRIBUNAL ORDERS that the appeal under subsection 22(7) of the Planning Act is dismissed.
39THE TRIBUNAL ORDERS that the appeal under subsection 34(11) of the Planning Act is allowed in part and Zoning By-law No. 160-90, as amended, of the City of Brantford is further amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the City of Brantford to assign a number to this By-law for record keeping purposes.
40THE TRIBUNAL FURTHER ORDERS that the properties, municipally known as 197 Market Street, 11 Grey Street, 150 George Street, 168 George Street and 30 Marlborough Street, City of Brantford, are hereby confirmed to be a ‘Class 4 Area’ as defined in the Ontario Ministry of the Environment, Conservation and Parks Publication NPC-300 ‘Environmental Noise Guideline - Stationary and Transportation Sources - Approval and Planning’, dated August 2013, released October 2013.
41The Tribunal may be spoken to by the Parties with respect to the implementation of this Order.
“C. I. Molinari”
C. I. MOLINARI
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