Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 30, 2024
CASE NO(S).:
OLT-23-000833
OLT-23-000843
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Barrhaven Conservancy Development Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
ZBA to facilitate the development of approximately 507 dwelling units comprised of single detached dwellings, traditional townhomes, rear-lane townhomes and apartment units
Reference Number:
D02-02-22-0120
Property Address:
3288-3300 Borrisokane Road
Municipality/UT:
City of Ottawa
OLT Case No:
OLT-23-000833
OLT Lead Case No:
OLT-23-000833
OLT Case Name:
Barrhaven Conservancy Development Corporation v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
DPS to facilitate the development of approximately 507 dwelling units comprised of single detached dwellings, traditional townhomes, rear-lane townhomes and apartment units
Reference Number:
D07-16-22-0028
Property Address:
3288-3300 Borrisokane Road
Municipality/UT:
City of Ottawa
OLT Case No:
OLT-23-000834
OLT Lead Case No:
OLT-23-000833
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Barrhaven Conservancy Development Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
ZBL/DPS to facilitate the development of 961 residential units
Reference Number:
D02-02-21-0132
Property Address:
4305, 4345-4375 McKenna Casey Drive and 3288-3300 Borrisokane Road
Municipality/UT:
City of Ottawa
OLT Case No:
OLT-23-000843
OLT Lead Case No:
OLT-23-000843
OLT Case Name:
Barrhaven Conservancy Development Corp. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
ZBL/DPS to facilitate the development of 961 residential units
Reference Number:
D07-16-21-0036
Property Address:
4305, 4345-4375 McKenna Casey Drive and 3288-3300 Borrisokane Road
Municipality/UT:
City of Ottawa
OLT Case No:
OLT-23-000844
OLT Lead Case No:
OLT-23-000843
Heard:
July 5, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Barrhaven Conservancy Development Corporation
Mark Flowers William George (Student-at-Law)
City of Ottawa
Timothy Marc
MEMORANDUM OF ORAL DECISION DELIVERED BY S. Dixon and David Brown ON July 5, 2024 AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION AND BACKGROUND
1This Decision and Order arises from a Hearing of Merits regarding two sets of Zoning By-law Amendment (“ZBA”) and Draft Plan of Subdivision (“DPS”) applications (together, “Applications”) for two adjacent sites known municipally as 4305, 4345, and 4375 McKenna Casey Drive (“Western Portion”) and 3288-3300 Borrisokane Road (“Eastern Portion”; together, “Subject Lands”) in the City of Ottawa (“City”).
2The Subject Lands comprise approximately 86 hectares of former agricultural land in the community of Barrhaven, bounded by the Jock River to the south, Highway 416 to the west, McKenna Casey Drive to the north, and Borrisokane Road to the east.
3The Eastern Portion of the Subject Lands forms part of a larger subdivision extending further east that received a prior and separate Draft Plan Approval on December 7, 2021 (“Conservancy East Plan”).
4The Applications seek to revise the Conservancy East Plan for the lands west of Borrisokane Road (i.e., the Eastern Portion) and introduce a new Draft Plan of Subdivision for the Western Portion.
5Barrhaven Conservancy Development Corporation (“Appellant”) filed two sets of corresponding appeals, each pursuant to ss. 34(11) and 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), due to the City’s failure to make a decision on the Applications within the prescribed timeframes.
6The appeals pertaining to the Western Portion (OLT-23-000843 and OLT-23-000844) are being heard together with the appeals pertaining to the Eastern Portion (OLT-23-000833 and OLT-23-000834).
SETTLEMENT
7The Parties advised the Tribunal that they reached a settlement of all four appeals whereby the ZBA and DPS for the Western Portion are to be geographically expanded to include the Eastern Portion, such that a single ZBA and DPS – with one set of Conditions of Draft Plan Approval (“Conditions”) – would apply to the entirety of the Subject Lands. The proposed ZBA and DPS are attached hereto as Attachment A and Attachment B, respectively. The proposed Conditions are attached hereto as Attachment C.
8The Parties further advised that their executed Minutes of Settlement include provisions ensuring that, should the Tribunal approve the expanded ZBA and DPS for the entirety of the Subject Lands, the Appellant will then withdraw the remaining two appeals pertaining to the ZBA and DPS applications for the Eastern Portion (i.e., OLT-23-000833 and OLT-23-000834). A letter confirming same was provided to the Tribunal on July 11, 2024 and is hereby marked as Exhibit 2.
9Counsel for the Appellant submitted that the proposed consolidation of the Western Portion and Eastern Portion into a single geographic area covered by one ZBA and one DPS is due primarily to the change in required parkland dedication rates resulting from the More Homes Built Faster Act, 2022 (“Bill 23”). Bill 23 amended the Act to require a dedication of one hectare of parkland for every 600 dwelling units, whereas the Act previously required a dedication of one hectare of parkland for every 300 dwelling units. Since the applications for the Eastern Portion constitute revisions to the previously approved application – which was approved prior to the enactment of Bill 23 – a legal question remained between the Parties as to which parkland dedication rate was appropriate for the Eastern Portion.
10By expanding the geographic extent of the ZBA and DPS for the Western Portion to include the entirety of the Subject Lands – thereby introducing a new ZBA and DPS for the Eastern Portion as opposed to revising the previously approved instruments – the Parties submitted that the legal issue regarding the applicable parkland dedication rate no longer need be adjudicated.
Expanding the Scope of an Appeal
11In considering the Tribunal’s jurisdiction to geographically expand the scope of an appeal, the Tribunal was directed to Claremont Development Corporation v Pickering (City), 2020 CanLII 62539 (ON LPAT) (“Claremont Decision”), in which former Vice Chair G.C.P. Bishop made the following findings pertaining to boundary modifications when considering appeals of a ZBA and DPS (emphasis added):
26The Motion brought by CDC clearly requests:
an Order that the proposed plan of subdivision includes all of Phase I and II lands as illustrated in the joint affidavit of Messrs. Given and Cory, sworn April 17, 2019; and
an Order directing the City to circulate all application materials submitted May, 2018, for the purpose of obtaining agency and public comments.
27The jurisprudence relied on by counsel for CDC clarifies and solidifies the power of this Tribunal to modify an application by adding lands to areas subject to an application or appeal. The former Ontario Municipal Board continued as this Tribunal repeatedly found that the power to modify an Official Plan Amendment application includes the power to add lands to the geographic extent of an area under appeal.
28The Ontario Municipal Board has in the past allowed boundary modifications where the lands to be included: share the same essential character as the lands originally subject to the application; the modification is compatible with the existing uses; the modification allows for comprehensive planning; the public has been made aware of the proposal; and no prejudice would be suffered by the parties.
29The Tribunal accepts the opinion evidence from the affidavit of Mr. Schaefer, dated April 18, 2019 and of Messrs. Given and Cory, dated April 17, 2019 and finds that it is in the public interest in this unique case, to include the Phase II lands with the Phase I lands for adjudication before this Tribunal.
12Counsel for the Appellant submitted that, in this instance, expansion of the boundary of the appeals to the Western Portion (i.e., OLT-23-000843 and OLT-23-000844) meets the tests set out in Paragraph 28 of the Claremont Decision as follows:
a) The Western Portion and Eastern Portion share the same essential character, being former agricultural lands that are designated in the City’s Official Plan (“COP”) for residential development;
b) There is no issue of compatibility with surrounding existing uses, as the proposed ZBA and DPS for the Subject Lands propose similar residential land uses;
c) The modification allows for comprehensive planning, as all lands would be subject to one ZBA and one DPS with one set of Conditions;
d) The public was made aware of the initial Applications for both the Western Portion and the Eastern Portion, and adequate notice was given regarding the Appeals to same and the resulting proceedings before this Tribunal; and
e) There is no prejudice to any of the Parties, as they are requesting the modification on consent as a means to resolve all outstanding issues and simplify the Applications.
Planning Evidence
13In support of the Settlement, the Tribunal was in receipt of the Affidavit of Michael Goldberg, affirmed on June 27, 2024, which was marked as Exhibit 1.
14Mr. Goldberg is a Registered Professional Planner and the founding Principal of Goldberg Group. He has approximately 40 years of experience as a land use planner and has been qualified by the Tribunal to provide expert opinion evidence in that regard on numerous occasions. He was so qualified again by the Tribunal at this Hearing.
15Mr. Goldberg proffered that the Subject Lands are in the Urban Area of the City, are designated “Neighbourhoods” on Schedule B6 of the COP, and are planned to complement the surrounding developed residential fabric, including the draft approved and partially registered Conservancy East Plan to the immediate east. He further proffered that:
a) The overarching objective of the proposed development is to create a neighbourhood defined by its adjacency to the rich open space system of the Jock River corridor to the south by promoting physical activity and public health, supporting existing natural features, and protecting development from the floodplain;
b) The proposed development provides approximately 1,995 residential units in the form of single detached homes of different frontages and various townhouse configurations, including back-to-back, rear lane, and stacked;
c) The layout of the DPS has been influenced by the local context and consultations with City staff, including the establishment of views and focal points;
d) The arrangement of streets and blocks is designed as a permeable grid, with pathways and walkway blocks, and is intended to address the relationship with the adjacent transportation corridor, developing neighbourhood to the east, and be sensitive to the environmental corridor to the south;
e) The parks and streets have been designed and located to provide a connection between the community and the open space corridor of the Jock River;
f) The ZBA and DPS have been revised to incorporate an east-west collector road and bus rapid transit alignment through the Subject Lands, thereby extending access to the City’s transit network;
g) The proposed development can be adequately serviced and will not exceed the capacity of existing City infrastructure; and
h) Stormwater will be captured by an internal gravity sewer system that will convey treated stormwater flows to six outlets along the southern boundary of the development to the Jock River corridor.
16In Mr. Goldberg’s opinion, the proposed development:
a) Has appropriate regard to the relevant matters of provincial interest set out in s. 2 of the Act, including 2(a) on the protection of ecological systems, 2(h) on the orderly development of safe and healthy communities, 2(j) on the adequate provision of a full range of housing, 2(o) on the protection of public health and safety, and 2(p) on the appropriate location of growth and development;
b) Has appropriate regard to the criteria set out in s. 51(24) of the Act concerning draft plans of subdivision;
c) Is consistent with the Provincial Policy Statement, 2020 (“PPS”), including Policies 1.1.1, 1.1.3.2, 1.4.1, 1.4.3, 1.6.7, and Section 2.2;
d) Conforms to and implements the policies of the COP, including the policies relevant to lands designated “Neighbourhoods” in Sections 5.4 and 6.3;
e) Has appropriate regard to, and has incorporated the principles of, the City’s Urban Design Guidelines for Greenfield Neighbourhoods, 2007 and Building Better and Smarter Suburbs, 2015 documents; and
f) Will promote an efficient, cost-effective development and land use pattern supportive of, and accessible to, the City’s planned transit network.
17It is therefore Mr. Goldberg’s opinion that the proposed development is premised on sound and reasonable planning analysis, represents good planning, and is in the public interest.
FINDINGS
18The Tribunal is satisfied that the request to modify the boundaries of the Appeals in Case Nos. OLT-23-000843 and OLT-23-000844 to include the Eastern Portion is reasonable in the circumstances and meets the aforementioned tests set out by former Vice Chair Bishop in the Claremont Decision. The request is therefore granted.
19Based on the uncontroverted evidence of Mr. Goldberg, the Tribunal finds that the ZBA attached hereto as Attachment A, the DPS attached hereto as Attachment B, and the Conditions attached hereto as Attachment C, have appropriate regard to the matters of provincial interest as set out in s. 2 of the Act and the criteria set out in s. 51(24) of the Act, are consistent with the PPS, conform to the COP, represent good planning, and are in the public interest. As required by the Act, the Tribunal has had regard to the decisions of City Council, including their endorsement of the ZBA, DPS, and Conditions.
20The Tribunal acknowledges that, pursuant to the following Order confirming the approval of the ZBA, DPS, and Conditions, the appeals in Case Nos. OLT-23-000833 and OLT-23-000834 are formally withdrawn by the Appellant in accordance with Exhibit 2 and the executed Minutes of Settlement.
ORDER
21THE TRIBUNAL ORDERS that the appeal pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), being Case No. OLT-23-000843, is allowed in part and By-law No. 2008-250 is hereby amended as set out in Attachment A to this Order. The Tribunal authorizes the municipal clerk of the City of Ottawa to assign a number to this by-law for record keeping purposes.
22THE TRIBUNAL ORDERS that the appeal pursuant to s. 51(34) of the Act, being Case No. OLT-23-000844, is allowed in part and the Draft Plan of Subdivision shown on the plan prepared by J.D. Barnes Limited, dated May 16, 2024 and attached hereto as Attachment B, is approved subject to the fulfillment of the Conditions of Draft Plan Approval set out in Attachment C to this Order.
23THE TRIBUNAL ORDERS that pursuant to s. 51(56.1) of the Act, the City of Ottawa shall have the authority to clear the Conditions of Draft Plan Approval and to administer final approval of the Plan of Subdivision for the purposes of s. 51(58) of the Act. If there are any difficulties implementing any of the Conditions of Draft Plan Approval, or if any changes are required to be made to the Draft Plan, the Tribunal may be spoken to.
“S. Dixon”
S. DIXON
MEMBER
“David Brown”
DAVID BROWN
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.