2589618 Ontario Inc. and 2613598 Ontario Inc. v. Guelph (City), 2024 CanLII 38869

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 23, 2024

CASE NO(S).: OLT-22-004298

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

Applicant and Appellant: 2589618 Ontario Inc. and 2613598 Ontario Inc.

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

Description: To permit 30 cluster townhouses and a five-storey apartment building with 40 residential units

Reference Number: OZS19-004

Property Address: 78 & 82 Eastview Road

Municipality/UT: City of Guelph

OLT Case No.: OLT-22-004298

OLT Lead Case No.: OLT-22-004298

OLT Case Name: 2589618 Ontario Inc. and 2613598 Ontario Inc. v. Guelph (City)

Heard: February 5, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

2589618 Ontario Inc. and 2613598 Ontario Inc.

R. Uukkivi

City of Guelph

A. Thornton I. White (student-at-law)

2363707 Ontario Inc. and 2267498 Ontario Inc.

R. Kehar

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND PROCEDURAL HISTORY

1This Decision and Order arise out of an appeal filed by 2589618 Ontario Inc. and 2613598 Ontario Inc. (“Exquisite”/“Appellant”) from the decision by the City of Guelph (“City”) to refuse a Zoning By-law Amendment (“ZBA”) application for the property located at 78 and 82 Eastview Road (“Subject Properties”). For the reasons that follow, the Tribunal allows the appeal, in part, and approves of the ZBA as presented.

2The Subject Properties are rectangular in shape, approximately 3.25 hectares in size and located on the north side of Eastview Road, backing onto a natural area, which includes Provincially Significant Wetlands (“PSW”). It is designated Low Density Greenfield Residential and Significant Natural Areas in the City’s Official Plan (“OP”) and zoned Urban Reserve (UR) and Specialized Residential Single Detached Holding (R.1B.-39(H)).

3In March of 2019, Exquisite applied for a ZBA to give effect to a proposal to develop the Subject Properties with 57 residential cluster townhome units. Following comments from the public and various City departments, as well as a number of meetings with City staff, a series of revisions (along with updates to various technical studies in support of the application) took place. Those revisions and technical studies responded to concerns in relation to matters such as stormwater management (“SWM”) and the availability of Municipal servicing to accommodate the proposed development.

4The revised proposal reduced the number of cluster townhouse units from 57 to 30 and added a 40-unit, five-storey apartment building. City Council refused the application on the recommendation of planning staff detailed in a July 11, 2022 report, which states:

Planning staff recommend refusal of the proposed Zoning By-law Amendment application because the proposed apartment and cluster townhouse development has been unable to demonstrate that it will have no negative impact on the adjacent Natural Heritage System, including a Provincially Significant Wetland, and unable to demonstrate that there are full municipal services available, specifically adequate stormwater management to accommodate the development.

5At a Case Management Conference held on February 6, 2023, before a panel differently constituted, Naomi Ridout, a nearby resident concerned about potential impacts of the proposed development upon nearby PSW, was granted Participant Status. In addition, 2363707 Ontario Inc. and 2267498 Ontario Inc. (“Fusion”), which owns approximately 0.33 acres adjacent to and north of the Subject Properties, was granted Party status. Fusion raised concerns that the proposal would adversely affect the development potential of its lands.

LEGISLATIVE FRAMEWORK

6The Tribunal must be satisfied that the proposed ZBA, and the development it will ultimately permit, demonstrate sufficient regard for matters of Provincial interest; consistency with the Provincial Policy Statement, 2020 (“PPS”); and conformity with “A Place to Grow: Growth Plan for the Greater Golden Horseshoe” (“GP”), as well as the OP. Overall, the Tribunal must be satisfied that the proposal represents good planning in the public interest.

7Regard must also be had for the decision of the Municipal Council and the information considered by it in the course of making that decision. To that end, it is noted that, although the ZBA was initially refused, the City and the Applicant continued discussions leading up to the hearing and on January 25, 2024, counsel for the City submitted a letter to the Tribunal (Exhibit 1) indicating that,

…based upon further information and assurances from the Appellant concerning the stormwater management strategy to be pursued through the site plan process, the City of Guelph is now satisfied that the concerns which informed City Council’s refusal of the zoning by-law application at issue in this appeal can be addressed through detailed design at the site plan stage. I have instructions to withdraw the City’s objections to the zoning by-law application on appeal to the Ontario Land Tribunal in this case.

ISSUE

8Following the withdrawal of the objections to the ZBA by the City, only one issue remained as between the Appellant and Fusion. That issue is whether approval of the proposed development and implementing ZBA would preclude the future development of Fusion’s lands, contrary to principles of good planning and Provincial and local policies which speak to the efficient and optimal use of land.

FUSION’S POSITION

9Fusion’s lands are located within the Urban Boundary, and are designated Low Density Greenfield Residential, Significant Natural Areas & Natural Areas and zoned Urban Reserve. They are situated adjacent to and north of the Subject Properties and are otherwise surrounded by Natural Heritage lands owned by the City. Counsel for Fusion submitted that, because of the surrounding Natural Heritage lands, the only way to gain access to Fusion’s lands is through the Subject Properties.

10The Tribunal heard that Fusion’s lands are a remnant of a larger parcel previously owned by Fusion, which was redeveloped through past applications approved by the City approximately a decade ago. As part of that approval process, Fusion conveyed a substantial portion of its land holdings to the City for natural heritage purposes. The fact that the City did not take the remnant portion was held out by Fusion’s counsel as being indicative of the development potential of those lands for their planned residential use. He also submitted that the City must have anticipated the coordinated development of Fusion’s lands with the development of the Subject Properties, as it would not have made a planning decision to leave Fusion’s lands without access to a public road, thereby impeding the future development thereof.

11It was argued that the ZBA and proposed development, as presented to the Tribunal, are not representative of good planning because approval of same would preclude the realization of the planned use of Fusion’s lands, leaving them vacant and underutilized, contrary to policies within the PPS and GP which speak to efficient/optimal use of land.

12While it was acknowledged that the Tribunal lacks jurisdiction to grant an easement over the Subject Properties, counsel for Fusion argued that the Tribunal does have the jurisdiction and the responsibility, to ensure orderly development and good planning. To that end, he requested the Tribunal approve the proposed ZBA, subject to the imposition of a Holding symbol (“H”) requiring Exquisite to coordinate its development with the development of Fusion’s lands. Suggested scenarios for achieving such coordination include the private granting of an easement in favour of Fusion, revisions to the proposed layout of the Subject Properties to allow for mutual access, or some other solution permitting the collective development of both Fusion’s and Exquisite’s lands.

13Counsel for Fusion also acknowledged that the H would be an independent process involving only Exquisite and the City. He explained that, at the site plan stage, Exquisite would be required to demonstrate the coordination of its development with the development of Fusion’s lands in order for the H to be lifted or, should coordination not be possible, it would be up to the City to lift the H.

EXQUISITE’S POSITION

14Counsel for Exquisite submitted that the proposed ZBA and the development it will permit meet all requisite legislative tests and represent good planning. It was further submitted that the City now supports the application, having been satsifed in relation to issues of SWM and water balance, and the absence of impact upon nearby wetlands. He requested the Tribunal dismiss the issue raised and relief requested by Fusion, and approve the draft ZBA without amendment.

15With respect to the issue raised by Fusion, it was submitted that the Tribunal lacks jurisdiction to grant easements over private property. It was further submitted, with reference to the decision of the Ontario Municipal Board in Dunpar Developments Inc. Re (2007 CarswellOnt 5769) in paragraph 17 that,

the imposition of conditions on one private landowner to provide guarantees or assurances to another private landowner for future development of its lands is both unreasonable and without planning justification.

16It was argued that Fusion’s requested H is simply an attempt to accomplish indirectly what it cannot otherwise accomplish directly, given that the endgame of any Tribunal-ordered coordination would be a requirement for Fusion and Exquisite to enter into a private agreement whereby Exquisite either provides an easement in favour of Fusion, or purchases the lands currently owned by Fusion.

LAND USE PLANNING EVIDENCE

17Evidence in support of the proposal was led by Exquisite through Registered Professional Planner, Eldon Theodore, who was qualified without objection to provide land use planning opinion evidence.

18The City took no position on Fusion’s issue and appeared at the hearing for the limited purpose of providing assurances to the Tribunal that, based upon additional commitments and technical information provided by Exquisite, the ZBA and the development it will permit satisfy the requisite legislative tests and represent good planning in the public interest. To that end, the City called Registered Professional Planner, Michael Witmer, who was qualified without objection to provide land use planning opinion evidence.

19No evidence was led in support of the position taken by Fusion, which presented its case solely through submissions and cross-examination of the witnesses called by the Appellant and the City.

20Mr. Theodore, through his sworn Affidavit and oral evidence, provided a comprehensive review of the proposed ZBA against the requisite legislative tests and ultimately recommended approval of same. In his opinion, the proposed development and implementing ZBA represent good planning in the public interest, demonstrate regard for matters of provincial interest, as well as consistency with the PPS and conformity to both the GP and the OP. He also provided uncontested opinion evidence on the recent passage of Bill 150, Planning Statute Law Amendment Act, 2023, explaining that it has no impact or effect as it relates to the matter currently before the Tribunal.

21In general, Mr. Theodore opined that the proposal appropriately intensifies an underutilized site, makes efficient use of land, and optimizes infrastructure and services including transit, without causing environmental/public health and safety concerns, and demonstrates appropriate consideration for the protection of natural heritage features. He further opined that the proposed development will result in the addition of diversified housing options compatible with the surrounding residential context of the neighbourhood. He noted that OP policies, including those addressing natural heritage and SWM (including water quantity and quality), have all been appropriately addressed through the various technical reports submitted in support of the application.

22He explained that the proposal to develop the Subject Properties represented a challenge, given the significant natural heritage considerations at play. Several complex technical evaluations were required to justify the proposal (including, but not limited to, studies in relation to SWM and hydrogeology), with careful consideration being given to site layout, including strategic placement of the proposed built forms, and mitigation measures, such as the implementation of a low impact development (“LID”) approach using permeable pavers and additional filtration to ensure protection of water balance and natural heritage features. This supporting work was described as being akin to the level of detail normally undertaken at the site plan stage of development.

23In response to the suggestion that coordination between Fusion and Exquisite could include revisions to the layout of the proposed development to allow mutual access, Mr. Theodore opined that, if anything, only very slight adjustments might be possible. He noted that larger changes, such as a suggested movement of snow storage areas to accommodate access, would almost certainly trigger a requirement to revisit/update all of the technical studies done in support of this application.

24With respect to the specific issue raised by Fusion, Mr. Theodore opined that approval of Exquisite’s application would not have the effect of precluding the development of Fusion’s lands, should it be demonstrated that such lands are viable and appropriate for same. He explained that similar to the extensive work done in support of Exquisite’s application, careful study would be required to determine, inter alia, the current development limits of Fusion’s lands relative to the boundary of the Natural Heritage System, as well as matters of servicing, SWM and water balance.

25While he acknowledged Provincial policies which speak to efficient and optimal use of land, he pointed out that the direction is not to optimize “at all costs”, noting that development still needs to “make sense”, when balanced with other interests which, in the case of Fusion’s lands, include natural heritage and other environmental considerations. In his opinion, the simple fact that Fusion’s lands are designated within the OP as a combination of Low Density Greenfield Residential and Significant Natural Areas & Natural Areas, and are zoned Urban Reserve, confirms that there is still work to be done to determine whether the property is developable. He drew the Tribunal’s attention to OP policy 10.4.10, which states,

The City, where appropriate, may zone lands in an “urban reserve” or other suitable zone category where:

i) there is insufficient information to determine specific zoning categories that would implement the provisions of this Plan; and

ii) development of lands is considered premature because adequate services are not available.

He explained that, although the Urban Reserve zone recognizes development may occur, Fusion would be required to provide technical studies (of the sorts provided by Exquisite) to determine whether it is appropriate to move its lands out of Urban Reserve into another zoning category.

26Mr. Theodore acknowledged Fusion’s earlier development application included an Environmental Impact Statement (“EIS”) involving, inter alia, an assessment of the remnant lands and natural heritage boundaries at that time. He also acknowledged that the terms of reference for the EIS in support of the current application relied on, as a starting point, the various development constraints determined during Fusion’s EIS. However, he underlined that it was used as a “starting point only” and opined that, in order to determine the current development potential of Fusion’s lands, updated technical studies would be required because neither natural heritage features, nor the manner in which they are studied, remain stagnant. It was noted, for example, that any movement of a natural heritage feature since the previous EIS, could change the development envelope on the property, rendering discussion of future development thereon merely speculative in the absence of updated study.

27It was put to Mr. Theodore in cross-examination that the H is a tool used in situations where there may be outstanding conditions that need to be addressed in rezoning applications. In response, Mr. Theodore noted that the H is used when there is outstanding technical information in relation to, for example, transportation or servicing capacity issues. Mr. Theodore was then taken to policy 10.5 of the OP, which sets out criteria for instances where the H can be used and states, in part:

1. The City may use the holding symbol (“H”) or any other appropriate symbol pursuant to the provisions and regulations of the Planning Act where the use of land is definitely established but a specific development is considered premature or inappropriate for immediate implementation.

2. The City may apply a holding (H) symbol in conjunction with the implementing Zoning By-law for any land use designation of this Plan in one or more of the following circumstances…

…v) where it is necessary to require the phasing of an overall development to ensure logical and orderly land use, to minimize negative impacts or to secure commitments consistent with the policies of this Plan;

vi) where development is contingent upon other related matters occurring first, such as the consolidation of land ownership to ensure orderly development and phasing of the project or to secure funding agreements on necessary infrastructure or services.

3. The City may remove the holding (H) symbol in the implementing Zoning By-law where Council is satisfied that all requirements or conditions of the City have been satisfied to ensure appropriate development. The satisfactory completion of conditions may include, but not be limited to, appropriate financial and servicing requirements, approval of studies, and the signing of necessary agreements under the provisions of the Planning Act.

28However, Mr. Theodore expressed the view that the foregoing policies are not relevant to the current application. He explained that, in this instance, the proposed development does not require phasing of any kind, is not contingent on other related matters, can proceed on its own merit, and is now supported by the City. He further explained that consolidation of land ownership for orderly development typically takes place among consenting landowners.

29Counsel for Fusion also took Mr. Theodore to Fusion’s earlier rezoning application, as considered in a City Council report dated April 14, 2014, which states in part:

Future Development of Adjacent Lands

The potential for future development of the adjacent lands to the east at 78-82 Eastview Road is recognized and has been considered through the review of this application. Future development opportunities of these adjacent lands have been assessed to ensure that a sufficiently sized developable area exists to accommodate redevelopment opportunities. This includes ensuring that appropriate access from Eastview Road can be provided to support these potential opportunities. Recognizing the similar environmental constraints that exist on the subject

property, the establishment of public roads in association with future development opportunities on these adjacent lands is not considered feasible.

Through the review of the Grangehill Phase 7 subdivision, opportunities to provide a street stub from the extension of Starwood Drive from this subdivision to provide a future public road extension to the west in association with future redevelopment of 78 to 82 Eastview Road and the subject property were examined. However, due to the environmental constraints on these properties, the incorporation of a public street extension to serve redevelopment opportunities on these properties was not considered feasible. Development on narrower private condominium roads or driveways from Eastview Road serving smaller apartment buildings were determined to be the more suitable redevelopment options given the size and configuration of the developable lands available. Further, the development proposal currently proposed for the subject lands does not preclude opportunities to redevelop the adjacent properties to the east.

30It was put to Mr. Theodore that, in creating the remnant Urban Reserve parcel of land, staff contemplated a private road to service same. Mr. Theodore disagreed, noting that the foregoing paragraphs only address the development of Exquisite’s lands and make no reference to Fusion’s remnant parcel of land or any future development thereof. He reiterated that those lands have not been properly assessed in order to determine whether they have any development potential. In his view, absent the sorts of technical studies discussed previously to determine the developability of Fusion’s lands, and whether interconnectivity with Exquisite’s development makes sense, the relief requested by Fusion simply holds up a viable development which is now supported by the City.

31Mr. Theodore pointed out that, from a planning perspective, the remnant property’s lack of access or “landlocked” state is a pre-existing condition created through the approval of Fusion’s development of their lands to the west. He noted that an approval of Exquisite’s application does not create that condition and opined that Exquisite should not be obligated to remedy same by ensuring that Fusion will have a right of access through Exquisite’s lands. Ultimately, he expressed the view that the issue of access is not a land use planning matter but, rather, a private matter between these two landowners, which falls outside of this particular application process. Finally, he noted that although the development of buildings or road infrastructure on the Significant Natural Areas & Natural Areas around Fusion’s lands would be quite limited and restrictive, a road could, in theory, be developed thereon to provide necessary access, provided it is done so sensitively.

32On behalf of the City, Mr. Witmer explained that he was initially of the opinion that the proposal did not meet the requisite legislative tests and was not representative of good planning based upon issues in relation to SWM and natural heritage. However, in the fall of 2023, the proposed LID approach satisfied City staff that adequate SWM could be provided, there would be no negative impacts to adjacent PSW, and details of the foregoing could be addressed at site plan. Through the lens of that updated information, Mr. Witmer concurred with Mr. Theodore’s evidence and recommended approval of the ZBA, opining that the proposal represents good planning and meets the necessary legislative tests.

ANALYSIS AND FINDINGS

33Counsel for Fusion referenced Provincial policies which direct the efficient use of land and presented authorities which stand for the proposition that it is not in the public interest to create landlocked parcels, and which highlight the importance of coordination in land use planning. He argued that approval of the ZBA, as presented, would result in Fusion’s lands being landlocked and underutilized, at odds with such policies and principles. It was submitted that Fusion does not seek an Order mandating an easement over private property but rather, the imposition of an H to ensure coordination which allow for the efficient use of Fusion’s lands.

34The evidence before the Tribunal is that lack of access is a pre-existing condition created by Fusion and the City through previous development approvals. Approval of the present application does not in any way create or change that condition. An Order imposing the H requested by Fusion is tantamount to a condition requiring the two landowners to enter into a private agreement to remedy that pre-existing condition and strays outside the bounds of the Tribunal’s jurisdiction. While there may well be a path to the resolution of the issue raised by Fusion (and the Parties are most certainly encouraged to engage in discussions aimed at finding that path), the Tribunal is of the view that a ZBA hearing is not the appropriate forum for same.

35While policies requiring the efficient use of land are acknowledged, the Tribunal accepts the opinion of Mr. Theodore, that such policies must be balanced with other policy considerations and agrees with the submissions of counsel for Exquisite that, in order to come to the conclusion that approval of this ZBA would result in Fusion’s lands being underutilized, it must first be established that there is an ability to utilize those lands. In this case, the Tribunal was not presented with compelling evidence in this regard and accepts the unchallenged opinion of Mr. Theodore that, given the progression in time and changes in policy, technical studies from approximately a decade ago cannot be relied upon to demonstrate the development potential (if any) of Fusion’s lands.

36Based on the available evidence, the Tribunal finds an H is neither appropriate nor necessary to ensure efficient/optimal use of lands and good planning. In fact, it is likely that it would have the opposite effect, delaying or impeding efficient use of Exquisite’s lands (which, on the basis of extensive technical study, have been determined to be viable for the development proposed) should the sought-after coordination between Fusion and Exquisite not materialize.

37The Tribunal accepts the uncontroverted land use planning opinions of Messrs. Theodore and Witmer and finds the proposed ZBA and the development it will ultimately permit meet all necessary legislative tests and represent good planning. The Tribunal is also satisfied that those matters which informed the City’s decision to refuse the application (and which, in part, formed the basis for the concern raised by the Participant), will be adequately addressed through detailed design at the site plan control stage.

ORDER

38The appeal is allowed, in part, and the City of Guelph By-law No. (1995)-14864, as amended, is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the Municipal Clerk of the City of Guelph to assign a number to this By-law for record-keeping purposes.

“S. Braun”

S. Braun

vice-chair

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