Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 27, 2024

CASE NO(S).: OLT-23-000419 OLT-23-000699 OLT-23-000804

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Villarboit Owen Sound Holdings LP and Heritage Grove Centre Inc.

Subject: By-law No. 2023-045

Description: To permit the rezoning of subject lands to allow the commercial/residential development

Reference Number: ZBA No. 44

Property Address: 2275 16th Street East

Municipality/UT: Owen Sound/Grey

OLT Case No.: OLT-23-000419

OLT Lead Case No.: OLT-23-000419

OLT Case Name: Villarboit Owen Sound Holdings LP v. Owen Sound (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Sydenham Square Inc.

Appellant: Thompson Centres Inc.

Applicant: Heritage Grove Centre Inc.

Subject: By-law No. 2023-082

Description: To permit the construction of additional buildings to complete the buildout of the multi-building commercial development on subject lands

Reference Number: CS-23-071

Property Address: 2125 16th Street East

Municipality/UT: Owen Sound/Grey

OLT Case No.: OLT-23-000699

OLT Lead Case No.: OLT-23-000699

OLT Case Name: Sydenham Square Inc. v. Owen Sound (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Heritage Grove Centre Inc.

Subject: Consent

Description: To create an easement for access over a portion of the subject property

Reference Number: B06-2023

Property Address: 2125 16th Street East

Municipality/UT: Owen Sound/Grey

OLT Case No.: OLT-23-000804

OLT Lead Case No.: OLT-23-000804

OLT Case Name: Heritage Grove Centre Inc. v. Owen Sound (City)

Heard: February 12, 2024

APPEARANCES:

Parties	Counsel
Villarboit Owen Sound Holdings LP and Heritage Grove Centre Inc. (“Heritage”)	Gerard Borean
Sydenham Square Inc. (“Sydenham Square”)	Raivo Uukkivi
Thompson Centres Inc. (“Thompson”)	John Pappas
City of Owen Sound (“City”)	Harold Elston

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Decision stems from three separate, but related, applications that had been set for Hearings. The Parties have come to a proposed resolution of all three matters and requested that a single Settlement Hearing be convened for the three to be heard.

2The first ZBA application relates to lands located at 2275 16th Street East (“2275”) and appeals the City’s approval of By-Law No. 2023-045 (“ZBA 44”) which amended the City’s Zoning By-Law 2010-078 (“Zoning By-Law”). The purpose of ZBA 44 is to permit the rezoning of 2275 to allow the proposed development of five commercial buildings and three residential apartment buildings. The effect of ZBA 44 is to amend the special provisions which currently apply to the subject lands and replace the special provisions with new standards. The applicant for ZBA 44 is Sydenham Square and it is being appealed by Heritage.

3The second ZBA application relates to lands located at 2125 16th Street East (“2125”) and appeals the City’s passing of By-Law No. 2023-082 (“ZBA 48”) which amended the Zoning By-Law. The purpose of ZBA 48 is to permit the construction of additional buildings to complete the buildout of the multi-building commercial development on 2125. A new 3,252-square-metre grocery store is proposed, together with an attached 1,310-square-metre retail unit in the northeast quadrant of the site. Heritage was the applicant for ZBA 48, and it is being appealed by Thompson.

4The third application arises from an appeal of a Committee of Adjustment (“COA”) decision to allow an easement over lands in favour of the neighbouring property located at 2275. The proposed easement is approximately 7.2 metres (northern end) to 8 metres (southern end) in width and 117 metres in length. The purpose of the easement is to provide access to 2275 from 16th Street. The easement was approved; however, Heritage appealed, disputing the conditions imposed.

EVIDENCE

5The Parties present requested the following documents be marked as Exhibits:

a. Exhibit 1 – Affidavit of Service (at previous Case Management Conference)

b. Exhibit 2 – Document Book of Heritage Grove

c. Exhibit 3 – Visual Evidence Document Book of Villarboit

d. Exhibit 4 – Zoning By-Law amendment number 48

e. Exhibit 5 - Visual Evidence of Sydenham Square Inc.

f. Exhibit 6 - Zoning By-Law amendment 44

g. Exhibit 7 – Ron Davidson CV

h. Exhibit 8 - Ron Davidson Acknowledgement of expert duty

i. Exhibit 9 – Schedule A of By-Law 2023-045

6For the Settlement Hearing, the Parties presented two (2) witnesses. The first was Mark Yarranton, who was found, after a review of the credentials provided, to be qualified to provide expert opinion evidence in the field of Land Use Planning. Yarranton provided evidence regarding ZBA 48 and the Consent application.

7The second witness was Ron Davidson, who was found, after a review of the credentials provided, to be qualified to provide expert opinion evidence in the field of Land Use Planning. Davidson provided evidence regarding ZBA 44.

ANALYSIS AND FINDINGS

8Yarranton provided evidence to the Tribunal indicating that the goal of their client’s proposed development is to create a high-quality urban centre by developing a grocery store and retail building on their property. However, Yarranton proffered, the existing C2 provision in the Zoning By-Law does not allow for grocery stores and ZBA 48 seeks to amend that, along with some other minor changes to the Zoning By-Law. Yarranton testified that the settlement proposal would eliminate the Holding provision currently found in ZBA 48; thus the Parties are asking for the appeal to be allowed in part.

9M. Yarranton provided evidence that the settlement proposal is consistent with the Provincial Policy Statement (“PPS”). Yarranton testified that the proposal is located within the City’s Settlement Area with access to full municipal services and that the proposal includes a two-unit commercial building which will contribute to the range and mix of commercial employment available in the City. Yarranton also provided evidence that the site has no natural heritage constraints and is a new development phase of an existing commercial development. Also, 2125 fronts 16th Street East, which is an existing transit route that extends into the subject lands. Yarranton opined that the proposed development is appropriate for and will efficiently use the infrastructure and public service facilities which are available on the subject lands.

102125 is designated Primary Settlement Area in the County of Grey Official Plan (“County OP”). Yarranton testified that Settlement Areas with full municipal services are the focus of most of the growth within the County. Yarranton also testified that the County OP promotes a full range of residential, commercial, industrial, recreational, and institutional land uses within Primary Settlement Areas and opined that this settlement proposal conforms to the County OP.

11The City of Owen Sound Official Plan (“City OP”) contains a comprehensive list of policies to manage growth and development within the City. Yarranton testified that the subject property is designated East City Commercial in the City OP and that the lands are located within the Sydenham Heights Planning Area – Phase I. Yarranton opined that the proposed development is comprised of permitted uses in the East City Commercial designation and that the proposed development includes commercial uses that are compatible with the existing and planned residential land uses in the surrounding area found in the Sydenham Heights Planning Area. Yarranton opined that the settlement proposal conforms with the City OP.

12The Tribunal agrees with the uncontested evidence of Yarranton and comes to the same conclusion regarding the proposed settlement of the ZBA 48 appeal.

13Yarranton then provided evidence concerning the Consent application. As part of the settlement agreement the Tribunal was informed that all of the conditions have been satisfied and that the City can issue a Certificate under s. 53(42) of the Planning Act. Yarranton testified in detail as to how the conditions have been met, including with the preparation of a Traffic Impact Study and that an easement agreement has been executed, among other conditions. Yarranton opined that the proposal conforms to the City OP, County OP, and the Planning Act, and is consistent with the PPS.

14The Tribunal agrees with the uncontested evidence of Yarranton and comes to the same conclusion regarding the proposed settlement of the Consent appeal.

15The Tribunal then heard from Davidson concerning ZBA 44. Davidson adopted the evidence of Yarranton and agreed that the prior evidence represented sound land use planning. Davidson provided more site-specific information regarding 2275; that subject land is 7 hectares in size but only 3 hectares are developable because of forested and hazard designations in the other areas.

16Davidson provided evidence that the purpose of the ZBA 44 is to permit a mixed-use development which includes three multi-unit commercial buildings, two single-purpose commercial buildings, and three 3-storey (40-unit) multi-unit residential buildings with a total of 120 residential units. Davidson also testified that the proposal includes the construction of parking areas, an internal road system, landscaping, and a stormwater management system. Davidson proffered that the proposed C2 zoning for the property will permit the proposed commercial and residential development.

17Davidson testified that the County OP designates the entire City as primary settlement area and that the City OP designates the subject land as East City Commercial. Davidson opined that the settlement proposal conforms with the County OP and the City OP.

18Davison provided evidence to indicate that the PPS directs urban development to designated settlement areas such as the City and that it encourages intensification in areas with existing municipal services, as can be found in this settlement proposal. Davidson continued, stating that this proposal would have no impact on natural heritage features nor areas of agricultural significance. Davidson opined that the settlement proposal is consistent with the PPS, has regard for matters of Provincial interest under the Planning Act, and represents good planning.

19The Tribunal agrees with the uncontested evidence of R. Davidson and comes to the same conclusion regarding the proposed settlement of the ZBA 44 appeal.

ORDER

[20] THE TRIBUNAL ORDERS that:

a. OLT-23-000419 – the appeal against By-law 2023-045 is allowed in part and directs the municipality to amend By-law 2023-045 as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the City of Owen Sound to assign a number to this by-law for record keeping purposes. In all other respects, the Tribunal Orders that the appeal is dismissed;

b. OLT-23-000804 – the appeal is allowed in part and the provisional consent is to be given providing that the easement shall contain the language set out in Attachment 2 to this Decision, being the document entitled “Schedule of Easement Terms”. The Certificate shall be issued by the City of Owen Sound pursuant to s. 53(42) of the Planning Act;

c. OLT-23-000699 – the appeal against By-law No. 2023-082 is allowed in part and directs the municipality to amend By-law No. 2023-082 as set out in Attachment 3 to this Order. The Tribunal authorizes the municipal clerk of the City of Owen Sound to assign a number to this by-law for record keeping purposes. In all other respects, the Tribunal Orders that the appeal is dismissed.

21The Tribunal may be spoken to should any issues arise with respect to the implementation of this Order.

“A. Sauve”

A. SAUVE Member