Rotary Club of Brampton Glen Community Centre v. Brampton (City), 2024 CanLII 59464

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 19, 2024

CASE NO(S).: OLT-23-000295

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

Applicant/Appellant: Rotary Club of Brampton Glen Community Centre

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

Description: To permit the development of two multi storey residential apartment buildings with a height of twelve and fourteen storeys.

Reference Number: OZS-2021-0018

Property Address: 1857 Queen Street West

Municipality: City of Brampton

OLT Case No.: OLT-23-000295

OLT Lead Case No.: OLT-23-000295

OLT Case Name: Rotary Club of Brampton Glen Community Centre v. Brampton (City)

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

Applicant/Appellant: Rotary Club of Brampton Glen Community Centre

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

Description: To permit the development of two multi storey residential apartment buildings with a height of twelve and fourteen storeys.

Reference Number: OZS-2021-0018

Property Address: 1857 Queen Street West

Municipality: City of Brampton

OLT Case No.: OLT-23-000296

OLT Lead Case No.: OLT-23-000295

Heard: April 22 to 30, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Rotary Club of Brampton Glen Community Centre

David Bronskill Rodney Gill (in absentia)

1951 Queen Street West Inc. (Cesta)

Mary L. Flynn-Guglietti

City of Brampton

Eugenia Bashura Steven Ross (in absentia)

DECISION DELIVERED ON BY S. DEBOER AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was the appeal filed by the Rotary Club of Brampton Glen Community Centre (“Applicant”/“Appellant”) under sections 22(7) and 34(11) of the Planning Act (“Act”) due to the City of Brampton’s (“City”) refusal of the Official Plan Amendment Application (“OPA”) and the Zoning By-law Amendment Application (“ZBA”) for the property municipally known as 1857 Queen Street West (“Subject Property”).

2The purpose of the Applications was to permit a redevelopment of the Subject Property to accommodate two new multi-storey residential apartment buildings. The original Applications were for a 12-storey apartment building located more on the southerly portion of the Subject Property and a 14-storey apartment building at the north end of the Subject Property facing Queen Street West.

APPLICATION HISTORY

3The Applicant requested a pre-application consultation with the City on November 26, 2020. On February 10, 2021, the Applicant and the City held a meeting to review the pre-application checklist identifying all the necessary reports and plans that would be required to support the formal Applications of both the Official Plan (“OP”) and the Zoning By-law (“ZBL”).

4On May 17, 2021, the Applicant formally filed the OPA and ZBA including all the required reports and planning justification for the Applications.

5On June 30, 2021, the City issued a Notice of Complete Application pertaining to the Subject Property and circulated the Applications for review and comment to all the City Departments pertaining to the Applications.

6On August 13, 2021, the City issued a Statutory Public Meeting for the Applications. This public meeting occurred on September 13, 2021.

7At the public meeting, the Applicant and their representatives made a presentation highlighting the proposals.

8On October 13, 2021, the City provided the Applicant with a Consolidated Comment Report on the Applications.

9On April 27, 2022, the City issued a second Consolidated Comment Report, and the Applicant responded to this report addressing the City’s concerns on May 30, 2022.

10On June 6, 2022, the Credit Valley Conservation Authority commented that the latest submission was acceptable, and the Conservation Authority would provide more commentary during the Site Plan Approval stage. It must be noted that the Site Plan was not before the Tribunal for approval.

11On June 20, 2022, at the City’s Planning and Development Committee Meeting, the Region commented that they did not object to the revised proposal and recommended that a holding (“H”) symbol be added until a Functional Servicing and Stormwater Management Report has been submitted and approved by the Region.

12At the same meeting on June 20, 2022, Planning Staff recommended that the Applicant’s Application be approved as the Application represented good land use planning and is consistent with the Provincial Policy Statement (“PPS”), conforms to the Growth Plan for the Greater Golden Horseshoe Area (“Growth Plan”), conforms to the Region’s Official Plan (“ROP”), and conforms to the City’s Official Plan (“COP”). The Planning and Development Committee approved the Application as recommended.

13At the August 5, 2022 City Council meeting, City Council introduced a Motion to amend the Planning and Development Committee minutes to refer the Applicant’s Application to City Staff for further consultation.

14On December 7, 2022, the Applicant held a further public meeting to allow for an opportunity for the residents to seek further clarification and provide commentary concerning the Application.

15On January 3, 2023, the Applicant submitted the results and commentary of the December 7, 2022 public meeting.

16On February 13, 2023, The Planning and Development Committee considered a supplementary report from Planning Staff, which included that the Application be approved. The Planning and Development Committee refused the approval of the Application.

17At the March 1, 2023 City Council meeting, City Council adopted the recommendations of the Planning and Development Committee, including the refusal of the Applicant’s Application.

18A Notice of Refusal was issued concerning the Applicant’s Application.

19On March 28, 2023, the Applicant filed its appeal to the Tribunal.

AREA CONTEXT

20The Subject Property is located on Queen Street West with a frontage of approximately 68 metres (“m”) and a depth of 390 m for a total lot size of approximately 1.87 hectares (“ha”). The Subject Property contains an existing two-storey building, which is located in the north section of the property. There is paved parking for approximately 70 vehicles behind and beside the existing building. The southern portion of the property is comprised of a wooded area and forms part of the larger open space/heritage system. This wooded area includes a small man-made intermittent drainage pond and is a small unnamed tributary of the Huttonville Creek.

21The Subject Property has a topography that gently slopes from the north to the south-east. The lands generally slope toward the natural unnamed tributary and receive drainage runoff from the adjacent properties into the hand-dug pond.

22Surrounding the Subject Property are single detached dwellings to the north, connected by Royal Drive West to Queen Street West, and to the south are open space and Lionhead Golf Club. To the west is currently a large greenhouse with a single-detached dwelling, and to the east is a new residential townhouse complex.

23The lands to the west and east are part of a Tertiary Plan, which will be discussed in more detail further into this Decision.

THE HEARING

24Prior to the hearing, the Appellant filed a “with prejudice” revised Application with the City. The revisions included the following:

North Building (facing Queen Street West)

• Reduced proposed building height from 14-storeys to 10-storeys;

• Increased the building footprint from 918 m² (9,881.27 ft²) to 980 m² (10,548.63 ft²);

• Replaced originally proposed east facing open balconies on the 2nd and 3rd floors with enclosed balconies/solariums;

• Replaced originally proposed hardscape area (restaurant patio) located between the building and the east property line with soft landscaping (i.e., sod, shrubs, trees, etc.);

• Reduced the amount of originally proposed hardscape area abutting the ground floor commercial/retail space with soft landscaping (i.e., sod, shrubs, trees, etc.);

• Eliminated the pedestrian sidewalk originally proposed to be located along the east of the building connecting Queen Street West to the interior of the Subject Site; and

• Increased the indoor amenity area from 375 m² (4,036.46 ft²) to 390 m² (4,197.93 ft²).

South Building

• Replaced originally proposed outdoor amenity, hardscape area located between the building and the east property line with soft landscaping (i.e., sod, shrubs, trees, etc.);

• Increased the building footprint from 1,106.42 m² (11,909.41 ft²) to 1,170 m² (12,593.78 ft²);

• Replaced originally proposed east facing open balconies from the entire east facing façade with enclosed balconies/solariums;

• Eliminated the pedestrian sidewalk originally proposed to be located along the east side of the building, connecting the east side yard to the interior of the Subject Site;

• Increased the east side yard setback from 6.962 m (22.841 ft) to 8.455 m (27.739 ft) (an increase of 1.493 m (4.898 ft)) as it pertains to that portion of the building measuring 12-storeys; and

• Reduced the outdoor amenity area from 465 m² (5,005.22 ft²) to 250 m² (2,690.98 ft²) with an increase in the soft landscaping area.

25The Appellant asked that the Tribunal use this proposal as a basis for the hearing event.

Exhibits

26At the commencement of the Hearing, the following were entered as Exhibits:

• Exhibit 1: Joint Document Book and Joint Visual Evidence

• Exhibit 2: Agreed Statement of Facts

• Exhibit 3a and 3b: Rotary Witness Statements of Michael Gagnon and Rob Rowbotham

• Exhibit 4a and 4b: City Witness Statements of Allan Ramsay and Ryan Mounsey

• Exhibit 5a and 5b: City Reply Statements

• Exhibit 6: Rotary Visual Document Book

• Exhibit 7: City Visual Document Book

• Exhibit 8: Supplementary Report Sept. 11, 2023

• Exhibit 9: Appendix 7 Urban Design Angular Plane Analysis June 27, 2023

• Exhibit 10: Revised Plans with Podium Stepback

Issues

27The following are the issues that were to be determined by the Tribunal concerning the “with prejudice” Application:

1. Do the proposed Official Plan and Zoning By-law Amendments (“Applications”) have regard to the matters of provincial interest outlined in section 2(h)(j)(p)(r) of the Planning Act?

2. Are the Applications consistent with the Provincial Policy Statement, 2020, including but not limited to policies 1.1.1(a)(b)(d), 1.1.3.1, 1.1.3.2(a)(b), 1.1.3.3, 1.1.3.4, and 1.1.3.6?

3. Do the Applications conform with A Place to Grow: the Growth Plan for the Greater Golden Horseshoe, August 2020 consolidation, including but not limited to policies 2.2.1.2(a)(b)(c)(d), 2.2.1.4, and 2.2.2?

4. Do the Applications conform with the Region of Peel Official Plan, Office consolidation 2018, including but not limited to policies 5.3.1.3, 5.3.2.2, 5.3.2.3, and 5.5.2.2?

5. Do the Applications conform with the City of Brampton Official Plan, 2006, September 2020 consolidation, including but not limited to policies 3.1, 3.2.1.1, 3.2.8.1, 3.2.8.3, 3.2.8.4, 3.2.8.5, 3.2.8.6, 4.2.1.1, 4.2.1.2, 4.2.1.3, 4.2.1.4, 4.2.2, 4.2.6.15, 4.2.7.1, 4.11.3.1, 4.11.3.1.1, 4.11.3.1.2, 4.11.3.1.3 and, 4.11.3.2?

6. Do the Applications conform with the Credit Valley Secondary Plan (Area 45) policies, including but not limited to policies 4.1, 4.2.3, 4.2.4, 5.2.1, 5.2.4.1, 5.2.4.2, 5.2.4.3, 5.2.4.4, 5.2.4.5, 5.2.5, 5.2.6, 6.2.1, 6.2.2, and 6.2.4?

7. Is it appropriate to change the legend on Schedule 45(a) to the Credit Valley Secondary Plan (Area 45) by adding the proposed ‘High Density Residential’ designation?

• Is it appropriate to change the land use designation for these lands on Schedule 45(a) to the Credit Valley Secondary Plan (Area 45) from ‘Low Density 1’ to ‘High Density Residential’?

8. Are the proposed amendments to policies 6.2.2 and 6.2.3 of the Credit Valley Secondary Plan (Area 45) appropriate?

9. Is the proposed addition of a new subsection titled ‘High Density Residential’ to Section 5.2 (Residential) in the Credit Valley Secondary Plan (Area 45) appropriate?

10. Queen Street West Tertiary plan:

• Are the proposed amendments to the Queen Street West Tertiary Plan appropriate?

• Is it appropriate to have alternative uses (apartment units or senior units/residential care homes) in the designation?

• Is the proposed development consistent with the other developments within the Queen Street West Tertiary plan?

11. Is it appropriate to rezone these lands from ‘Highway Commercial Two-Special Section 349 (HC2-349)’ to ‘Residential Apartment A (Holding) 3641 (R4A (H)-3641)’, ‘Open Space 3642 (OS-3642)’ and ‘Floodplain (F)’ as proposed?

• If ‘no’, then what should be the appropriate zoning?

12. Is it appropriate to include a Holding (H) provision in the Zoning By-law Amendment to limit development until transit improvements are in place?

• If ‘yes’, then what is the appropriate wording for the Holding (H) provision?

13. Is the proposed built form (specifically the proposed height, density, massing, setbacks, stepbacks, sitting, design of the buildings) appropriate?

• If no, then what is the appropriate built form (specifically the proposed height, density, massing, setbacks, stepbacks, sitting, design of the buildings)?

14. Is the built form of the proposed development compatible with the surrounding neighbourhoods?

• If no, then what should be the appropriate built form of this development?

15. Will the proposed development create undue negative impact on the surrounding community?

16. Does the proposal constitute good planning and is it in the public interest?

17. Have all appropriate studies to support the proposal been completed and updated to the Ontario Land Tribunal’s satisfaction?

• If not, is it appropriate to approve the Applications?

Queen Street West Tertiary Plan (“Tertiary Plan”)

28The Queen Street West Tertiary Plan is located within the Queen Street West Special Policy Area 2, which was approved by the City in the fall of 2019 and by the Local Appeal Planning Tribunal (a former version of the current Ontario Land Tribunal).

29The Tertiary Plan Area is approximately 14.75 ha in size and is bounded by Mississauga Road to the west, Queen Street to the north, valley land to the east and Lionhead Golf Club to the south. There are five properties contained within the Tertiary Plan:

• 1817 and 1831 Queen Street West – known as the Branthaven Development (“Branthaven”);

• 1857 Queen Street West – known as the Rotary Club of Brampton Glen Community Centre (“Appellant’s lands”);

• 1879 Queen Street West – known as Jim and Luisa Mocon; and

• 1951 Queen Street West – known as 1951 Queen Street West Inc. (“Cesta”)

30The Appellant’s lands are adjacent to the Branthaven lands to the east and the Cesta lands to the left. It must be noted that the Branthaven lands are currently finishing development, while the Cesta lands currently contain a large greenhouse and single detached dwelling. However, the Cesta lands are a part of the larger Tertiary Plan redevelopment.

31The purpose of a Tertiary Plan is to set out guidelines for development within a specific area within a Municipality’s secondary plan. A Tertiary Plan includes a vision and detailed land use and addresses the integrated development within the Tertiary Plan’s subject area. Concerning the Queen Street West Tertiary Plan, the property owners involved agree that the plan includes but is not limited to land use, the natural heritage system, development patterns and standards, access, right-of-ways, compatibility, and urban design. It must be noted that a Tertiary Plan is a “non-binding” plan, plainly stated, even though the property owners involved agree with the details of the Tertiary Plan, no property owner nor the City are held to the standards or technical proposals contained within the said Tertiary Plan. The Tertiary Plan is to be used as an agreed-upon guideline or vision for the development of the Tertiary Plan area.

32The Tertiary Plan designates the Subject Property as “Medium Density Residential 2”, which permits a maximum of 208 residential apartment units and a maximum building height of nine storeys. The Tertiary Plan proposes access to the Subject Property by a southerly extension of Royal Drive West and via private laneways subject to a private laneway subject to a public access easement agreed upon by the adjacent landowners.

Witnesses

33The Tribunal heard from four expert witnesses and one witness under summons. Rod Rowbotham was qualified to give expert opinion evidence in the area of architecture and urban design. Michael Gagnon was qualified to give expert opinion evidence in the area of land use planning. Mr. Rowbotham and Mr. Gagnon provided testimony on behalf of the Appellant. Ryan Mounsey was qualified to give expert opinion evidence in the area of urban design. Allan Ramsay was qualified to give expert opinion evidence in the area of land use planning. Mr. Mousey and Mr. Ramsay provided testimony on behalf of the City. The witness under summons was David Vanderberg. Mr. Vanderberg was qualified to give expert opinion evidence in the area of land use planning and was the author of the planning reports that were before the City’s Planning and Development Committee and before City Council.

Evidence

34Mr. Gagnon provided the Tribunal with a non-opinion background of the Application’s history and confirmed with the Tribunal that he had been involved with the Application since the beginning of the application process. Mr. Gagnon confirmed that he was involved with the “with prejudice” Application that is now before the Tribunal.

35Mr. Vanderberg was called before the Tribunal under summons and confirmed he was the author of the City’s Planning Reports that were used during the Application process. He confirmed that he was involved in the public meeting processes and provided his recommendations to both the Planning and Development Committee and to City Council. He stands by his reports and recommendations made in his reports based on those Applications that were presented at that time. He cannot provide any commentary concerning the new “with prejudice” Application that is before the Tribunal as he has not seen, nor was he involved with the revised Application before the Tribunal.

36Throughout the hearing process, the witnesses, through their oral testimony and cross-examination, came into agreement on many of the issues. The witnesses agreed that the south building – as presented before the Tribunal – is in a form that would be appropriate and would meet the appropriate tests of the PPS, the Growth Plan, the ROP the COP and was considered to be good land use planning.

37The issues concerning the north building were also reduced considerably. The two remaining issues with the north building were concerning whether the first three floors of the building should remain as presented or be redesigned as townhouses and whether there should be a stepback of 2.5 m on the north side of the north building (the side of the building facing Queen Street West).

38Concerning the first issue, Mr. Mounsey gave opinion evidence that the first north building should be of a stacked townhouse design and not a 10-storey apartment building as presented. If the north building were a form of stacked townhouses, then this would allow for more privacy for the townhouses to the adjacent properties to the east and would provide for a more appropriate transition and be more in keeping with the character of the area.

39Concerning the second issue, it was Mr. Mounsey’s opinion that if the north building would remain as an apartment building as presented, then a 2.5 m stepback after the third floor would be necessary to provide a more appropriate human-scale development.

40Throughout the testimony and cross-examination of Mr. Ramsay, Mr. Ramsay agreed with Mr. Mounsey that if there was a 2.5 m setback on the side of the north building facing Queen Street West, then the north building could be compatible with the ROP and COP. Mr. Ramsay did confirm that the north building permission request of 10 storeys is one storey more than the nine-storey permission that was in the Tertiary Plan.

ANALYSIS AND FINDINGS

41In forming a Decision on this matter, the Tribunal must analyze the evidence presented before it, the oral testimony of the witnesses, and must have regard to the Decision and the materials presented before City Council when their final Decision was made on the Applications.

The Tertiary Plan

42The Tribunal notes that the Tertiary Plan is a “non-binding” document between landowners of the Tertiary Plan area and the City. It was confirmed through witness testimony that this Tertiary Plan was approved by City Council. This was an undisputed fact. However, the Tertiary Plan is to be used as an agreed-upon guideline as to how all of the lands in a particular Tertiary Plan are to be developed. Granted, the various landowners within the Tertiary Plan can request changes to the document through the land instruments of an OPA and/or a ZBA, as in this matter.

43This particular Tertiary Plan also creates an understanding between all the landowners and the City as to who is responsible for the needed infrastructure to complete the Tertiary Plan. This includes an understanding of where private laneways between properties are to occur and where other services, such as sewer and water lines, are to be established.

44Concerning the Subject Property, the Tertiary Plan approved a six-storey south building and a nine-storey north building facing onto Queen Street West. The original OPA and ZBA were for approval of a 12-storey building to the south and a 14-storey building to the north facing Queen Street West.

The Applications

45The original Applications were recommended for approval by City Planning Staff to the City’s Planning and Development Committee. The Planning and Development Committee, through its public meeting process, had recommended that the Application be approved by City Council. After City Council tabled the Applications pending further consultation, the Applicant made revisions to their proposal on multiple occasions to try and mitigate City Council’s concerns. It must be noted that the Planning and Development Committee is composed of all members of City Council and that this Committee had originally recommended said Applications. It should also be noted that the Region did not have any issues with the Applications except for one condition. This condition is that the approval of the Applications is done on a conditional basis, and the Tribunal withholds its Final Order until an updated functional servicing report has been accepted and approved by Regional Planning Staff.

46Concerning the “with prejudice” proposal before the Tribunal, the Tribunal finds that the proposal before it demonstrates the willingness of the Appellant to make the necessary revisions in order to satisfy the issues before the Tribunal.

47The Tribunal finds that the Applicant has demonstrated to the Tribunal its willingness to work with City Planning Staff, City Council and the Tribunal to move the Application to a satisfactory stage for approval.

Witness Testimony

48The Tribunal is in agreement with all of the witnesses that the Subject Property is currently underutilized and that an intensification of these lands is warranted as prescribed in the Tertiary Plan.

49As mentioned earlier in this Decision, the Tribunal reiterates that many of the issues were agreed upon by all of the experts. For example, though the evidence presented and evidence-in-chief, Mr. Mounsey and Mr. Ramsay agreed that the south building, as presented to the Tribunal, should remain. Both Mr. Mounsey and Mr. Ramsay agreed that the south building, as presented, is compatible and conforms to the ROP, COP and the Tertiary Plan. The Tribunal agrees with the professional planning witnesses that the south building, as presented, is appropriate.

50Pertaining to the north building, the request is one storey more than has been previously permitted in the Tertiary Plan. Both Mr. Mounsey and Mr. Ramsay gave the opinion that if the proposal included a 2.5 m stepback from the north-facing side of the north building, then the north building would meet the requirements of the OP and the ZBA. The Tribunal agrees with the professional planning witnesses that the proposed 2.5 m stepback after the third floor is appropriate and should be a part of the ZBL.

Overall Findings

51The Tribunal finds that the revised proposal before it is a matter of Provincial interest as stated in s. 2 of the Act.

52The Tribunal finds that the Appellant has demonstrated that the proposal before the Tribunal is consistent with the PPS and conforms with the Growth Plan.

53The Region of Peel (“Region”) had one request concerning the proposal. The Region requested that the Tribunal give an Interim Order to the proposal before the Tribunal until the functional servicing report – which had been submitted by the Appellant – had been reviewed and approved by the Region. The Tribunal finds that the request by the Region for an Interim Order be made until an updated functional servicing report has been accepted and approved by Regional Planning Staff is appropriate pertaining to this matter.

54The Tribunal finds that the proposal before the Tribunal conforms to the COP and to the City’s ZBL and that an Interim Order is appropriate. A Final Order by the Tribunal will be withheld until the following conditions are met:

1. The final form of the ZBA is presented to the Tribunal to the satisfaction of the Parties; and

2. A written confirmation is received by the Tribunal from the Region that an updated functional servicing report has been submitted and approved concerning the Proposal before the Tribunal.

INTERIM ORDER

55THE TRIBUNAL ORDERS THAT the Appeals are allowed in part, on an interim basis, contingent on confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [56] below, and the Zoning By-law Amendment are approved in principle.

56The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:

a. The Tribunal has received, and approved, the Zoning By-law Amendment in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor; and

b. The Tribunal has been advised and received confirmation from the Region of Peel that the updated functional servicing report is satisfactory pertaining to the subject lands and the land planning instruments before the Tribunal.

57The Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

58If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [56] above have been satisfied, and do not request the issuance of the Final Order by Monday, September 9, 2024, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal.

59The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“S. deBOER”

S. DEBOER

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.