Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 08, 2024
CASE NO(S).: OLT-22-003362 (Formerly PL190422)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Aspen Garden Bowmanville Ltd Subject: Application to amend Zoning By-law No. 84-63- Refusal or neglect of Town of Clarington to make a decision Description: To permit the construction of a 136-unit residential subdivision Reference Number: ZBA2018-0027 Property Address: Lot 17, Concession 1 Municipality/UT: Municipality of Clarington OLT Case No.: OLT-22-003362 Legacy Case No.: PL190422 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422 OLT Case Name: Aspen Garden Bowmanville Ltd. v. Clarington (Municipality)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Aspen Garden Bowmanville Ltd Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit the construction of a 136-unit residential subdivision Reference Number: S-C 2018-0001 Property Address: Lot 17, Concession 1 Municipality/UT: Municipality of Clarington OLT Case No.: OLT-22-003363 Legacy Case No.: PL190423 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Aspen Garden Bowmanville Ltd. Subject: Site Plan Description: To permit the construction of a 136-unit residential subdivision Reference Number: SPA 2019-0005 Property Address: Lot 17, Concession 1 Municipality/UT: Municipality of Clarington OLT Case No.: OLT-22-003364 Legacy Case No.: PL190424 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422
Heard: June 17, 2024 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Aspen Garden Bowmanville Ltd. | Evan Barz |
| Municipality of Clarington | David Donnelly |
| Region of Durham | Robert Woon |
Memorandum of oral DECISION DELIVERED BY Michael Menezes and T.F. Ng on June 17, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
Introduction
1The matter came before the Tribunal as a settlement hearing. The matter regards appeals filed by Aspen Garden Bowmanville Ltd. (“Appellant”) pursuant to sections 34(11), 51(34), and 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, in respect of the failure by Council for the Municipality of Clarington (“Municipality”) to make a decision on the Appellant’s revised applications for Zoning By-law Amendment (‘ZBA”), Draft Plan of Subdivision (“DPS”), and Site Plan Control (“SP”) to create 113 residential units on the Appellant’s property, which is legally described as Lot 17, Concession 1 in the Municipality, at the northwest corner of Baseline Road and Green Road (“Subject Property”).
2Through discussions between the Appellant, the Municipality, and the Region of Durham (“Region”) a settlement in principle (“Settlement Proposal”) was reached to resolve all remaining issues between the Parties in the Appeals.
3Angela Sciberras, the Appellant’s planner, testified in support of the Settlement Proposal. The Tribunal qualified her to provide opinion evidence in land use planning matters. Ms. Sciberras’ witness statement and Affidavit dated June 10, 2024 was marked as Exhibit 1. This Affidavit includes an attachment of a statement by Ms. Sciberras dealing with the resolution of the issues in the Procedural Order.
4The Tribunal having considered the uncontested testimony of Ms. Sciberras, the Settlement Proposal reached between the Parties, and having reviewed the documents filed, allows the Appeals in part for the reasons set out below.
SITE CONTEXT, APPLICATION, AND SETTLEMENT PROPOSAL
5The Subject Property is vacant of any structures. It is located within an urban residential area that predominantly consists of single detached dwellings and street townhouses.
6The original proposal was to permit a 136-unit Residential development consisting of 21 single detached dwellings, six semi detached dwellings (12 units), and a townhouse block of 103 units.
7Through discussions between the Appellant, the Municipality, and the Region the Settlement Proposal was reached, and a final form of the ZBA, DPS, and SP, including appropriate conditions, was agreed to and are now before the Tribunal for approval.
8The revised proposed development comprised 29 single detached dwellings, a townhouse block of 84 units, a new municipal road, an amenity area, an open space block of 1.64 acres at the west end of the Subject Property, which contains the environmental features and a retaining wall that separates the private amenity area from the open block space.
9The Subject Property is currently zoned Agricultural (A) Zone by the Municipality’s Zoning By-law No. 84-63, as amended. In order to facilitate the proposed residential development, a ZBA is required.
10The proposed zoning for the development is Urban Residential Type Two (R2) Zone with site specific exceptions, Urban Residential Type Three (R3) Zone, and Environmental Protection Zone (EP) with site specific exceptions. This will permit the proposed residential development with site specific standards and the identification of natural heritage features lands for protection and ultimate conveyance to the Municipality.
11The proposed zoning by-law exception includes site specific provisions for appropriate minimum density, minimum lot frontages, minimum setbacks, maximum height, and permitted uses among other things, including the restriction of uses within the Environmental Protection Block.
PLANNING EVIDENCE, ANALYSIS, AND FINDINGS
12The Tribunal agrees with Ms. Sciberras that the Settlement Proposal has regard for the matters of provincial interest set out in section 2 of the Planning Act. The Tribunal finds that the Settlement Proposal and draft ZBA have regard in particular to:
Subsection 2(a) – the protection of ecological systems, including natural areas, features and functions that have been reviewed by the Central Lake Ontario Conservation Authority (“CLOCA”) and the establishment of an appropriate Vegetation Protection Zone (‘VPZ”) and restoration plan;
Subsection 2(h) – the orderly development of safe and healthy communities, including being part of a larger community and adding to the existing natural heritage system;
Subsection 2(p) – the appropriate location of growth and development within the identified urban area;
Subsection 2(q) – designed to be sustainable and accessible to public transit; and
Subsection 2(r) – the promotion of built form that is well-designed and encourages a sense of place.
Provincial Planning Statement, 2020
13Ms. Sciberras’ review of the relevant sections of the Provincial Policy Statement, 2020 (“PPS”) confirms that the proposed development represents an efficient land-use pattern within a Settlement Area leveraging existing infrastructure. It provides an appropriate range of housing types along with densities. The Settlement Proposal contributes towards the preservation and rehabilitation of natural features within the Natural Heritage System. The Tribunal concurs that the ZBA, DPS, and SP are consistent with the PPS.
A Place to Grow: Growth Plan for the Greater Golden Horseshoe
14The Tribunal agrees with Ms. Sciberras that the proposed development conforms to the policies of the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) by proposing a modest intensification of residential uses within an identified Settlement Area that can be serviced by existing municipal services and infrastructure; and that through the development of the Subject Property, woodland and related environmental features and buffers will be transferred into municipal ownership.
Durham Regional Official Plan
15Ms. Sciberras confirmed reviewing the applicable policies of Durham Regional Official Plan (“DROP”). In particular, the Subject Property is designated Living Areas within the Urban System and Greenlands System of the DROP and the Settlement Proposal. The DROP follows and supports intensification of residential uses within the built boundary, use of existing infrastructure, and protection of natural heritage features. The Tribunal concurs with Ms. Sciberras’ opinion.
Clarington Official Plan
16The Clarington Official Plan (“COP”) designates the Subject Property as Urban Residential and Environmental Protection Area, and being within the built-up area. The Tribunal agrees with Ms. Sciberras’ assessment that the Settlement Proposal conforms to the COP by directing new development to built-up areas, assisting in achieving minimum density targets, and making efficient use of a vacant space. In addition, the proposed development is compatible in massing, height, and scale with the surrounding neighbourhood. The Settlement Proposal (with the condition of the DPS) conforms with Chapter 3 of the COP relating to the Municipality’s Natural Heritage System by protecting and preserving natural heritage features (woodland), and VPZ on the western side of the Subject Property, with a commitment to a retaining wall.
17Further, Ms. Sciberras reviewed and confirmed that the following instruments are appropriate and represent good planning:
a) The proposed ZBA instrument is appropriate and adequately considers matters of official plan conformity, urban design, built form, and compatibility;
b) The proposed DPS and Conditions have been reviewed against the criteria for compliance as per section 51(24) of the Planning Act, including the matters relating to urban design, parks/open space, roads, infrastructure, and the proposed Environmental Protection Block that has been confirmed by the Municipality and CLOCA; and
c) The SP and Conditions that are agreed between the Parties.
CONCLUSIONS
18Having considered the Settlement Proposal, the appeal documents, and the uncontroverted expert opinion evidence of Ms. Sciberras, the Tribunal is satisfied that the proposed development should be approved.
19For all the above reasons, the Tribunal finds that the Settlement Proposal represents good planning, is consistent with the PPS, conforms to the Growth Plan, the DROP and the COP; has appropriate regard to the matters of provincial interest in section 2 of the Planning Act, and is in the public interest.
20Accordingly, the Tribunal allows the Appeals, in part, and provides the following orders together with the attachments 1 to 5 attached to the decision.
ORDER
21The Tribunal Orders that the Appeals are allowed in part:
By-law No. 84-63, the Comprehensive Zoning By-law for the Corporation of the Municipality of Clarington, is hereby amended in the manner set out in Attachment 1 to this Order.
The Plan of Subdivision dated April 2, 2024, which is Attachment 2 to this Order, is hereby approved pursuant to subsection 51(56) of the Planning Act, subject to the Conditions, which are contained in Attachment 3 to this Order.
Pursuant to subsection 51(56.1) of the Planning Act, final approval of the Plan of Subdivision for the purposes of subsection 51(58) of the Planning Act is delegated to the Corporation of the Municipality of Clarington.
The Site Plan, which is attached as Attachment 4 to this Order, is hereby approved pursuant to subsection 41(12.1) of the Planning Act, subject to the Conditions which are contained in Attachment 5 to this Order.
The Tribunal may be spoken to if there are issues implementing this Order.
“Michael Menezes”
MICHAEL MENEZES
MEMBER
“T.F. Ng”
T.F. NG
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.
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ATTACHMENT 5