Skyline Real Estate Holdings Inc. v. Kawartha Lakes (City), 2024 CanLII 7616

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

February 02, 2024

CASE NO(S).:

OLT-23-000195

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

Skyline Real Estate Holdings Inc.

Subject:

Site Plan Control Application – failure to approve

Description:

To permit construction of an L-shaped 6 storey rental apartment building with 158 units

Reference Number:

D19-2022-002

Property Address:

Block 39 Concession 6 Plan 57M798

Municipality:

City of Kawartha Lakes

OLT Case No.:

OLT-23-000195

OLT Lead Case No.:

OLT-23-000195

OLT Case Name:

Skyline Real Estate Holdings Inc. v. Kawartha Lakes (City)

Heard:

November 2-3, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Skyline Real Estate Holdings lnc.

Eileen Costello Jasmine Fraser Anastasia Jones (articling student)

City of Kawartha Lakes

Stephen D’Agostino

DECISION DELIVERED BY C. I. Molinari AND interim ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal filed pursuant to s. 41(12) of the Planning Act (“Act”) by Skyline Real Estate Holdings lnc. (“Applicant”/”Appellant”) against the City of Kawartha Lakes (“City”) for its failure to approve a Site Plan Approval (“SPA”) application (“Application”) for the property located on the east side of Logie Street, between Primeau Crescent and Deacon Crescent in Lindsay (“Property”) and legally described as Block 39, Plan 57M-798.

2The Property is a 1.58 hectare (“ha”) vacant parcel of land, generally rectangular in shape and relatively flat. It has approximately 70 meters (“m”) of frontage on both Logie Street to the west and Deacon Crescent to the south and is adjacent to the Victoria Rail Trail to the east. To the north is a 6 m City-assumed drainage block (“Drainage Block”), beyond which is an existing subdivision of detached lots on Primeau Crescent that backs onto the Drainage Block. On the south side of Deacon Crescent are existing bungalow townhouses, and to the southeast are existing detached lots on the east side of Deacon Crescent.

3The Property is identified as a high-density apartment block on Registered Plan 57M-798, a plan of subdivision registered in 2014 and appropriately zoned for such use.

4The City approved a Zoning By-law Amendment (“ZBA”) to remove the Holding Symbol from the Property in May of 2021. The removal of the Holding Symbol allows for the construction of a residential apartment building up to 199 units, subject to Site Plan Control.

5At the Case Management Conference held on August 22, 2023, on consent of the Parties, the Tribunal granted Participant Status to the following concerned area residents: Brian Gallaugher, Eric Finn, Rosemary Scully-LeBlanc, Jeff Van Ginkel, and William Donnelly and Lorraine Chanchal-Donnelly (together “Participants”). The Participants submitted Participant Statements indicating concerns including those related to: urban design principles, location of the building and parking on the site, privacy impacts, noise impacts, shadow impacts, visual impacts, obstruction of views, appropriateness of landscaping, density/massing/scale of built form, reduced property values, and reduced quality of life.

EXISTING OFFICIAL PLAN DESIGNATION AND ZONING

6The Property is designated ‘Urban Settlement Boundary’ in the City of Kawartha Lakes Official Plan (“CKLOP”), and ‘Residential’ in the Town of Lindsay (“Town”) Official Plan (“TLOP”) and is zoned Residential High-Rise One (RH1) in the Town Zoning By-law No. 2000-75 (“ZBL”), which permits apartment buildings, subject to various performance standards. As the Property is appropriately designated and zoned for the proposed development, all approvals are in place except for SPA.

THE APPLICATION

7Based on a revised Site Plan submitted to the City on January 26, 2023 (“Revised Site Plan”), the Appellant proposes to develop the Property with an L-shaped, six-storey, 158-unit rental apartment building (“Proposed Building”) fronting on Logie Street, with 214 internalized surface parking spaces and landscaping around the perimeter.

8The Appellant had originally submitted the Application with an associated Minor Variance application (“MVA”), although the MVA was first deferred and then withdrawn by the Appellant. The Application was revised through three resubmissions, all of which did not require an associated MVA, before being appealed to the Tribunal. In that respect, the Revised Site Plan complies with the ZBL, and therefore neither a ZBA, nor MVA, is required to implement the Revised Site Plan.

9According to the Agreed Statement of Facts, the Revised Site Plan reflects the Proposed Building footprint location that was provided in the first resubmission, being located 15 m from the northerly lot line, 21 m from the rear lot lines of dwellings on Primeau Crescent and 28.5 m to the closest dwelling on Primeau Crescent. Further, the Proposed Building does not penetrate the 45-degree angular plane as measured from the rear lot line of the lots on Primeau Crescent.

LEGISLATIVE FRAMEWORK

10In determining a SPA appeal filed pursuant to s. 41(12) of the Planning Act, the Tribunal is to consider the submitted plans or drawings according to the provisions of s. 41(4) of the Act.

11The Tribunal is to also have regard to the relevant matters of provincial interest as set out in s. 2 of the Planning Act, and to any information and material that the municipal council or approval authority received in relation to the matter, in accordance with s. 2.1(2) of the Act.

12Section 3(5) of the Planning Act requires that decisions of the Tribunal affecting planning matters are to be consistent with the policy statements related to municipal planning and conform with any provincial plans that are in effect. In this case, this Decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”).

WITNESSES

13The Tribunal qualified the following witnesses, on consent, to provide expert opinion evidence in their respective areas of expertise, as noted:

For the Appellant:

• Roxy Shiell – Urban Design

• Michael Bissett – Land Use Planning

For the City:

• John Tassiopoulos – Urban Design and Urban Planning as it relates to Urban Design

• Jonathan Derworiz – Land Use Planning

ISSUES

14The Procedural Order includes the City’s urban design and land use planning issues as follows:

1. Does the proposed site plan conform to the applicable official plan policies? In particular:

a. Does the location and/or orientation of the building, as shown in the proposed site plan, meet the residential development criteria set out in Policy 4.1.2.2.a, 4.1.2.2.b, and 4.1.2.2.g of the Town of Lindsay Official Plan?

b. Does it meet the Objectives described in Section 5.2 of the City of Kawartha Lakes Official Plan?

c. Does the proposed site plan conform to the Community Design Policies under Section 3.2 of the Town of Lindsay Official Plan; particularly Policies 3.2.7a) and 3.2.9d)?

2. Does the proposed site plan have appropriate regard for matters of provincial interest that are prescribed in Section 2 of the Planning Act, such as: the promotion of development that is designed to be oriented to pedestrians (s.2(q)), and, the promotion of built form that, is well-designed, and encourages a sense of place (s.2 (r))?

3. Does the proposed location of the building satisfy urban design principles pertaining to:

a. Building orientation and siting on a lot/block;

b. Building height and massing with respect to the surrounding context;

c. Entrance locations on the building in relation to the street;

d. Screening of mechanical rooftop elements;

e. Appropriate transition and compatibility with adjacent uses; and,

f. Mitigation of adverse impacts to adjacent uses?

4. Does the proposed site plan constitute good planning?

15With respect to Issue 1.c., the Parties were in agreement that policy 3.2.9d) was not applicable and was struck from the Issues List.

URBAN DESIGN AND LAND USE PLANNING EVIDENCE / ANALYSIS

16Much of the City’s submissions were based on a proposed location of the built form at the southwest corner of the Property. Although there may be merit in an alternative site configuration, the Revised Site Plan with the built form at the northwest corner of the Property has been consistently proposed since the first iteration of the Site Plan, except for one alternative orientation to the southeast portion of the Property which was not supported by the City. While the City provided one comment related to the potential relocation of the built form to the southwest corner, it was not pursued by the City, and the City supported the current location throughout the Site Plan review process since the first submission in November of 2021.

17Furthermore, other than a hand drawn sketch overlay indicating the outline of a building at the southwest corner of the Property, in its evidence, the City did not put forth a revised Site Plan showing the layout of the Property with respect to parking areas, landscaping, circulation, etc., leaving it as an unevaluated option with no status.

18Only the Revised Site Plan is before the Tribunal and in this respect, the Tribunal is only able to consider the merits of the Revised Site Plan. No weight has therefore been given to any other site or built form configuration in the evaluation of the Revised Site Plan. On this basis, the evidence put forth with respect to the option of the built form at the southwest corner has not been included in the evaluation of the merits of the Revised Site Plan, nor in the following review of the evidence submitted.

Issue 1 – Conformity to the TLOP and the CKLOP

19Issue 1, as amended with respect to subsection c., is broken down into three sub-issues as follows:

a. Whether the location and/or orientation of the Proposed Building meets the residential development criteria set out in policy 4.1.2.2 a), b), and g) of the TLOP which relate to the density, height, character, massing, design, landscaping, and buffering of the development with respect to adjacent uses;

b. Whether the Revised Site Plan meets the housing objectives described in section 5.2 of the CKLOP which include the provision of a wide range of residential types and tenures, promoting residential growth in areas that have full municipal services and that minimize potential conflicts with other land uses, ensuring residential development occurs at density levels that are appropriate, and promoting innovation and excellence in housing design and architecture, site planning and urban design; and

c. Whether the Revised Site Plan conforms to the Community Design policy 3.2.7a) of the TLOP which relates to the establishment of streets and, in particular, discouraging reverse frontages along arterial roads.

Issue 1.a. – Residential Development Criteria re: TLOP Policy 4.1.2.2

Issue 1.a. – Appellant

20It was the opinion of both Mr. Bissett and Ms. Sheill that the location and orientation of the Proposed Building meets the development criteria for medium density residential uses in policy 4.1.2.2 a), b), and g) of the TLOP, which criteria also apply to high density residential uses as per policy 4.1.2.3.

21With respect to height and density, Mr. Bissett asserted that the permitted height and density is established in the ZBL, and that it is standard practice to evaluate the fit and potential impacts of development in comparison to the ‘as-of-right’ or permitted zoning. In this respect, he advised that the proposed height of 18 m and density of 100 units per ha (“units/ha”) are fully compliant with the ZBL.

22As it relates to the edge of the high-density residential development, Mr. Bissett added that, with approximately 21 m separation, the Proposed Building is appropriately separated from the adjacent low rise residential lots to the north. Ms. Shiell added that the density, height and character of the Proposed Building is in keeping with adjacent uses, and that it is “reasonable to evaluate the appropriateness of the proposal in relation to the adjacent uses having regard for the intended planned character for the area”. They both noted that the intended planned character of the area specifically included the Property as a high-density block within the community.

23It was Mr. Bissett’s opinion that the character of the area, being one of an intended mix of housing types with a comfortable pedestrian environment, will be maintained with the development of the Property as per the Revised Site Plan. Similarly, it was Ms. Shiell’s opinion that the Revised Site Plan is in keeping with, and appropriately maintains, the intended character of the area that includes a variety of housing types and forms. She further opined that the setbacks of the Proposed Building has regard to the height and massing of the adjacent low density residential area to the north, being at the edge of permitted high density residential development.

24Both Mr. Bissett and Ms. Shiell contended that, to ensure an appropriate built form transition to adjacent uses, the ZBL requires the setback from exterior and interior side lot lines to increase as the height of a building increases (i.e., 3.0 m and 2.5 m for each storey, respectively). In this regard, they both asserted that the Proposed Building meets both setback provisions to achieve the maximum permitted height of 18.0 m.

25With respect to landscaping and buffering, Mr. Bissett added that the ZBL requires a minimum of 40% landscaped open space and a requirement for landscaping surrounding the site. He advised that the Revised Site Plan provides for landscaped buffering along the perimeter of the site, including new trees, shrubs, and fencing, providing for a comfortable and attractive pedestrian environment along the public sidewalks, as well as serving to screen and break up the surface parking on the Property. Ms. Shiell added that the ZBL requirements for landscaping and the proposed landscaping surrounding the Property ensures an appropriate buffer to adjacent uses.

26Ms. Shiell advised that the setback and buffering criteria established in the ZBL also serve to mitigate potential issues of overlook and shadowing on adjacent residential uses “through increased spatial separation between buildings as built form scale increases”. She noted that, in addition to the 15.0 m setback to the north, the 6.0 m City-owned open space buffer block results in a cumulative separation between the Proposed Building and the south boundary of the properties to the north of approximately 21.0 m. Further, she noted that the ZBL requires a minimum distance between the Proposed Building and the dwelling units equal to the height of the Proposed Building, and, given the distance between the two is approximately 28.5 m and the height of the Proposed Building is 18.0 m, the Revised Site Plan is in excess of the ZBL requirement by 10.5 m in this regard.

27Ms. Shiell advised that neither the CKLOP nor the TLOP have urban design policies or guidelines, and, in the absence of such, she employed “widely accepted urban design conventions or best practices” to support her analysis in determining appropriate built form, height and massing in order to achieve transition between areas of varying intensity and/or scale and to limit potential issues of shadowing and/or overlook. In this respect, she proffered that the built form transition to the north is appropriately evaluated using a 45-degree angular plane, in conjunction with increased spatial separation. In this case, the Proposed Building “falls beneath the angular plane” and provides for a spatial separation that exceeds the typically accepted convention for spatial separation for facing conditions between low- and mid-rise buildings of 11.0 m to 15.0 m between adjacent properties.

28Ms. Shiell drew attention to the Town of Newmarket (“Newmarket”) and the City of Peterborough (“Peterborough”) urban design guidelines as provided by the City, which have adopted conventional urban design guidance with respect to separation distance and the application of angular plane. Newmarket employs a 11.0 m separation metric and the application of a 45-degree angular plane, while Peterborough uses the application of a 45-degree angular plane. She proffered that these municipalities used the same metrics as she did in her approach and the Proposed Building more than doubles the 11.0 m separation metric.

29In addition, Ms. Shiell opined that the visual impact of the Proposed Building on adjacent uses has been minimized through the following design considerations:

• landscape buffering along the entire perimeter of the Subject Site, including new deciduous and coniferous trees, deciduous and coniferous shrubs, and ornamental grass and perennial plantings;

• introduction of 1.2-metre-tall decorative wood fencing along the Deacon Crescent frontage and 1.8-metre-tall solid wood privacy fencing along the northern extent of the Subject Site; and,

• application of tinted balcony glazing to mitigate potential overlook from the interior of the proposed units to existing adjacent residential uses.

30Ms. Shiell opined that the Revised Site Plan conforms to the TLOP and the CKLOP from an urban design perspective.

Issue 1.a. – City

31With respect to character, Mr. Derworiz advised that he does not dispute the compliance of the Revised Site Plan with the ZBL but believes the location of the Proposed Building does not enable it to satisfy policy 4.1.2.2 a). In his opinion, the character of the development is not in keeping with the adjacent uses as demonstrated through the shadow study submitted by the Applicant that shows substantial shadowing of the properties on Primeau Crescent during the winter solstice in December. In his opinion, to demonstrate character in keeping with the low-density residential area to the north, the Proposed Building should be located in a manner that reduces shadowing on neighbouring properties.

32Mr. Derworiz agreed with Mr. Tassiopoulos that providing a building face along Deacon Crescent would contribute to the character of the area, and that the proposed fence does not offer character as it is “monotonous and lacks articulation”.

33With respect to height and density, Mr. Derworiz acknowledged that massing is not contemplated through the ZBL but added that with respect to the height, to minimize visual impacts on the Primeau Crescent properties, the Proposed Building could be relocated to front on Logie Street and Deacon Crescent.

34Mr. Tassiopoulos confirmed that he was satisfied with the height of the Proposed Building but had concerns with its massing and location on the Property. He opined that the Revised Site Plan did not have regard for the adjacent low-density dwellings. He added that the placing and massing of the Proposed Building along the north property line would create unnecessary and excessive overlook conditions from the windows and the 48 balcony spaces along the north elevation to the rear yards of the dwellings to the north, which would result in a potential loss of privacy. Further, it was his opinion that the orientation of the Proposed Building in this regard would create undue adverse shadow impacts on the rear yards of the dwellings to the north during the winter solstice.

35With respect to the elevation of the Proposed Building facing Logie Street and Deacon Crescent, Mr. Tassiopoulos advised that urban design best practice is to “address public views through wall articulation, architectural details or trim details, vertical breaks, window design or a combination of these features”. It was his opinion that the “proposed massing and design of this elevation does not address the views and interface with the dwellings on Deacon Crescent” and that the Revised Site Plan does not meet the development criteria of policy 4.1.2.2 b). To illustrate examples of urban design best practices, he referenced the Town of Caledon urban design guidelines which, for mid-rise buildings, requires buildings to be oriented “to face and address public streets”. He also referenced the Newmarket urban design guidelines which, for corner lots, guide mid-rise buildings to “be located to reinforce both streetwalls” and the Peterborough urban design guidelines which guides buildings on corner lots to “orient the primary facade to the street with the higher classification”. In this respect, he opined that the main entrance to the Proposed Building should be along the Logie Street frontage.

36With respect to landscaping, Mr. Tassiopoulos acknowledged that it was to be “nicely landscaped” but that he had an issue with the proposed fencing, in that it would provide a “monotonous interface with the little visual interest along the Deacon Crescent streetscape”. He offered that the revised decorative 1.2 m fence is a slight improvement but suggested that the fence is not a solution but a mitigation measure, in that the orientation of the Proposed Building precipitates the need for the fence.

Issue 1.a. – Analysis

37The Tribunal prefers the evidence of the Appellant with respect to Issue 1.a. The planned context of the area anticipates high density residential uses adjacent to low density residential uses. In this respect, the intended character of the area includes a variety of housing types and forms directly adjacent to each other. The Revised Site Plan is fully compliant with the requirements of the ZBL, which requires landscaping and increased setbacks as the height of the built form increases. Additional spatial separation is provided to the north by the City-owned buffer block. Landscaping is provided surrounding the built form and parking area.

38In the absence of urban design guidelines and/or associated detailed policy in the CKLOP or the TLOP, meeting the requirements of the ZBL, which attempts to mitigate the impacts as the height of a building increases through increased setbacks, the intent of policy 4.1.2.2 has been addressed and the location of the Proposed Building is permitted.

39The City’s concerns related to potential privacy, overlook and shadowing have been addressed through proposed mitigation measures which measures were not opposed by the City throughout the processing of the Application.

Issue 1.b. – Housing Objectives re CKLOP Section 5.2

Issue 1.b. – Appellant

40It was Mr. Bissett’s opinion that the Revised Site Plan meets the housing objectives in section 5.2 of the CKLOP as the Revised Site Plan implements the development of a purpose-built rental building, adding 158 rental housing units, with a range of unit sizes, to the rental stock in the City. He proffered that the Property is located proximate to existing transit and a park, “contributing to the area as a complete community”.

41Additionally, Mr. Bissett submitted that full municipal services are available for the Property, as confirmed through approval of the ZBA to lift the Holding Symbol in 2021, and there are no surrounding industrial or commercial uses that would result in any land use conflicts.

42Mr. Bissett opined that the Revised Site Plan will result in a development that is appropriate based on integration with the existing community, adequacy of services, roads, parks and community facilities. He stated that the Revised Site Plan implements the development of a high-density block within an approved plan of subdivision, which was a planned community that specifically contemplated and zoned the Property for an apartment building up to 18 m in height and 125 units/ha.

43It was Mr. Bissett’s opinion that the Revised Site Plan has been thoughtfully designed and landscaped to comply with the ZBL with the inclusion of direct pedestrian connections to the public sidewalk and the Victoria Rail Trail, a primary entrance and walkway facing Logie Street, as well as from the internal parking areas. He stated that the building is appropriately set back from the perimeter of the site to reduce overlook and provide sufficient room for buffering and landscaping. Additionally, he noted that the Revised Site Plan includes several low impact development measures to ensure stormwater is appropriately controlled on site, and contemporary measures with respect to waste management, EV charging stations, the pickle ball court and a dog run.

44Based on the foregoing, it was Mr. Bissett’s overall opinion that the Revised Site Plan meets the objectives of section 5.2 of the CKLOP by providing for new purpose-built rental housing in a serviced location intended to accommodate growth in the City, at an appropriate density and form that is fully compliant with the ZBL.

45Ms. Shiell stated that the primary relevant urban design related objective in section 5.2 of the CKLOP encourages the promotion of “innovation and excellence in housing design and architecture, site planning, and urban design to foster vibrant neighbourhoods which encourage walking and cycling”. She opined that, from an urban design perspective, the Revised Site Plan conforms to this objective in that:

• it provides for an appropriately scaled and oriented new purpose-built rental building that is fully compliant with the ZBL and contributes to the intended growth of the surrounding community;

• the Proposed Building is appropriately set back from the perimeter of the Property to reduce overlook and provide sufficient room for spatial separation and landscape buffers between neighbouring residential uses;

• the Proposed Building has been “thoughtfully designed to incorporate a materials palette that is complementary to the surrounding built form context and applied to the building in a manner that adds visual interest through articulation, limiting the perceived scale of the building”;

• new pedestrian connections to the public sidewalk lead directly to primary covered building entrances facing Logie Street and the internal surface parking area;

• the Proposed Building is set back from adjacent street frontages to allow for hard and soft landscaped edges that “enhance the new and existing pedestrian connections surrounding the Subject Site, promote pedestrian use, and improve the pedestrian experience”; and

• the Revised Site Plan provides nearby access to Logie Park, while proposed on-site amenities include a pickle ball court and pet run, among others.

Issue 1.b. – City

46Mr. Derworiz opined that the placement of the Proposed Building does not foster a vibrant neighbourhood, nor does it encourage walking and cycling as it “does not make efforts to engage or contribute to the area”. He proffered that this is apparent through the placement of the “monotonous wooden fence, instead of articulat[ing] [the] building frontage, on Deacon”. He felt that it is a “missed opportunity to contribute a building façade to Deacon and frame Deacon Street with the development” and that fronting the Proposed Building on Deacon Crescent would “utilize the opportunity to create a continued street frontage and frame the street”. He added that he agreed with Mr. Tassiopoulos’ Urban Design Review, that the proposed fence is not supportive of pedestrian circulation.

Issue 1.b. – Analysis

47The Tribunal prefers the evidence of the Appellant with respect to Issue 1.b. and finds that the Revised Site Plan meets the objectives of section 5.2 of the CKLOP for the reasons stated. The section speaks, in part, to the objective of fostering vibrant communities but lacks specifics on how to accomplish that. The Revised Site Plan provides for purpose-built rental housing at an appropriate density and location in the City with pedestrian connections to the neighbourhood and Victoria Rail Trail, landscaping, and on-site amenities.

Issue 1.c. – Community Design re TLOP Policy 3.2.7a)

Issue 1.c. – Appellant

48Mr. Bissett proffered that policy 3.2.7a) is intended to apply to the laying out of streets and considerations of laying out lots and blocks adjacent to streets. He stated that the Property is a block within an existing subdivision with frontage on Logie Street, being a collector road, rather than an arterial road, to which the policy applies. He added that, to the extent that this policy may be considered relevant to the proposed development, the Revised Site Plan provides for units and an entrance that front onto Logie Street.

49It was Mr. Bissett’s opinion that, while policy 3.2.7a) is “largely not strictly relevant to the evaluation of the subject site plan application”, it was his opinion that the Revised Site Plan conforms to the policy to the extent possible.

50It was Ms. Shiell’s opinion that the Revised Site Plan conforms to the Community Design Policies in section 3.2 of the TLOP, and in particular policy 3.2.7a) related to streets, which “discourages reverse fronting along arterial roads to create attractive views”. Ms. Shiell advised that the policy is intended to be used in the development of streets and properties adjacent to streets. As no new streets are included in the proposal, she proffered that the extent to which this policy is considered relevant to the Application is somewhat limited, although in her opinion, the Revised Site Plan does conform to the policy direction by aligning the Proposed Building along Logie Street.

Issue 1.c. – City

51It was Mr. Tassiopoulos opinion that, regarding the policy 3.2.7a) wording that “[a]ll roads should provide an attractive visual experience”, the elevation design of the Proposed Building should orient the main entrance to address Logie Street with a direct pedestrian connection to the sidewalk on Logie Street. He submitted that the primary entrance is internal to the site and that the entrance on Logie Street is not equivalent to the internal entrance in terms of primacy and seems more of an ‘afterthought’. In this respect, he opined that Revised Site Plan does not conform to the Community Design policies, and in particular, policy 3.2.7a).

Issue 1.c. – Analysis

52The Tribunal finds that policy 3.2.7a) is not relevant to the Application, other than the introductory wording that “[a]ll roads should provide an attractive visual experience”, as policy 3.2.7a) is specifically related to arterial roads, which Logie Street and Deacon Crescent are not. As such, the Tribunal attributes minimal weight and consideration to the evidence provided on this issue other than the submission by Mr. Tassiopoulos related to the provision of an attractive visual experience. In this regard, the Tribunal does not find that the internal primary entrance necessarily affects the provision of an attractive visual experience.

Issue 2 – Section 2 of the Act re Regard for Relevant Matters of Provincial Interest

53Section 2 of the Act requires the Tribunal, in carrying out its responsibilities under this Act, to have regard to, among other matters, matters of provincial interest as set out in the Act, including the following as identified by the City:

(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; and

(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

Issue 2 – Appellant

54Mr. Bissett opined that the Revised Site Plan has appropriate regard for the applicable matters of provincial interest as set out in s.2 of the Act, including subsections (q) and (r) and additionally, subsections (f) related to “the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems”, (h) related to “the orderly development of safe and healthy communities”, (i) related to “the adequate provision and distribution of educational, health, social, cultural and recreational facilities”, (j) related to the adequate provision of a full range of housing, including affordable housing, and (p) related to “the appropriate location of growth and development”.

55With respect to s. 2(q) of the Act, Mr. Bissett stated that the Revised Site Plan represents intensification that provides for more housing within the settlement area and in proximity existing transit and park space. Further, it was his opinion that the Revised Site Plan provides for new pedestrian connections from the existing Logie Street sidewalk to the west, as well as directly to the Victoria Rail Trail to the east.

56With respect to s. 2(r) of the Act, Mr. Bissett opined that the Revised Site Plan “provides for an appropriately scaled mid-rise building with generous setbacks from adjacent low rise areas in order to mitigate overlook and shadowing”, with landscaping around the perimeter of the site as well as within the parking area. In his opinion, the “design includes a variation in materials and colours, and is articulated to provide for an attractive well-designed building”.

57With respect to s. 2(j) of the Act related to the adequate provision of a full range of housing, including affordable housing, Mr. Bissett advised that the Revised Site Plan will implement a high-density rental apartment building. Furthermore, in his opinion, the Revised Site Plan would contribute much needed rental housing stock to the community and support the provincial objective of delivering more housing.

58With respect to the remaining subsections, in Mr. Bissett’s opinion, the Revised Site Plan implements the intended zoning for high-density residential development and the availability of adequate sewage and water service allocation to the Property was confirmed through the removal of the Holding Symbol. Further, Mr. Bissett advised that the Revised Site Plan fully complies with the ZBL and represents orderly development of the subdivision, as intended.

59It was Mr. Bissett’s opinion that the relevant matters of provincial interest have been met.

60It was Ms. Shiell’s opinion that, as it relates to urban design, the Revised Site Plan has appropriate regard for matters of provincial interest that are prescribed in s. 2 of the Act, and in particular subsections (q) and (r).

61Ms. Shiell proffered that the Revised Site Plan is “oriented to pedestrians and provides a well-designed built form that implements a contextually sensitive design response”. She added that the ZBL establishes “direction to ensure adequate built form transition and an appropriately scaled building through the provision of generous setbacks to adjacent low-rise residential areas in order to mitigate overlook between neighbouring properties and adequately limit shadow impacts”. Further, she added that the Revised Site Plan “features well-composed architectural façades with varied materiality and articulation, in addition to new landscaping around the perimeter of the Subject Site, and in particular along the Logie Street and Deacon Crescent frontages, resulting in an attractive and comfortable pedestrian-friendly environment”. As well, she added that it “introduces new pedestrian connections from the existing public sidewalk on Logie Street, as well as directly east to the Victoria Rail Trail, increasing connectivity around the Subject Site and encouraging pedestrian use”.

Issue 2 – City

62With respect to s. 2(q) of the Act, Mr. Derworiz proffered that the placement of the Proposed Building does not suggest a pedestrian-oriented development, as noted by the size of the parking area and the “absence of areas of refuge for pedestrians as they travers[e] from their vehicles to the building”. He opined that greater efforts to enhance the pedestrian experience should be provided. He furthered that the proposed fence along Deacon Crescent does not contribute to the pedestrian environment.

63With respect to s. 2(r) of the Act regarding built form, Mr. Derworiz contended that the Revised Site Plan does not promote a well-designed built form or encourage a sense of place, and that it is insular and does not contribute to either Logie Street or Deacon Crescent. He noted that fronting the building at the corner of Logie Street and Deacon Crescent would “add to the streetscape and offer an articulated building wall instead of a wooden fence” and provide a “pedestrian-oriented contribution”. He opined that this contribution would support good design and be engaging, therefore achieving a sense of place.

Issue 2 – Analysis

64With regard to the evidence of Mr. Tassiopoulos related to the development being insular, the Tribunal notes that, as the Property is adjacent to low-density residential on two sides, that the development of the Property would most likely be insular in its development regardless of the site planning.

65The Tribunal prefers the evidence of the Appellant with respect to s. 2 of the Act. The Revised Site Plan provides for pedestrian connections to both the streets and the Victoria Rail Trail and provides for orderly development and the provision of a range of housing types as provided for in the ZBL.

66Mr. Bissett addressed the other relevant subsections of s. 2 of the Act and the Tribunal finds that, on the whole, the Revised Site Plan has regard to the relevant matters of provincial interest.

Issue 3 – Satisfaction of Urban Design Principles

67The City’s urban design issue addresses whether the proposed location of the Proposed Building satisfies urban design principles pertaining to:

a. Building orientation and siting on a lot/block;

b. Building height and massing with respect to the surrounding context;

c. Entrance locations on the building in relation to the street;

d. Screening of mechanical rooftop elements;

e. Appropriate transition and compatibility with adjacent uses; and

f. Mitigation of adverse impacts to adjacent uses.

Issue 3.a. – Building orientation and siting on a lot/block

Issue 3.a. – Appellant

68Ms. Shiell proffered that, from an urban design perspective, although the development of the Property is the last in the build out of the subdivision, the historical zoning permitting high density residential development has been contemplated for the Property since it was rezoned in 2000. In addition, from an urban design perspective, Ms. Shiell advised that there are currently no buildings that front directly on Logie Street and no buildings on the west side of Logie Street in the vicinity of the Property.

69Specific to the stated urban design principles noted in Issue 3, Ms. Shiell provided a caveat that, in her opinion, it is unclear the specific urban design principles that the Revised Site Plan is to satisfy. She qualified this by stating that urban design principles are established by, and relate to, applicable documents providing urban design policy and/or guidance within a particular context. She added that the CKLOP and the TLOP provide little specific direction or guidance with respect to urban design or urban design principles and therefore, in the absence of urban design principles to reference with respect to the Property and in order to respond to this issue from an urban design perspective, she considered commonly accepted urban design best practice and/or convention to determine the appropriateness of the proposal.

70With respect to Issue 3.a. related to building orientation and siting on a lot/block, Ms. Shiell noted that it is conventional urban design practice to “locate buildings along and orient them to adjacent street frontages to establish and/or maintain a strong streetwall condition as contextually appropriate and/or as directed by applicable urban design policy and/or urban design guidelines”. She noted that locating, orienting, and siting buildings along street frontages is common in an urban setting. In the instance of the Property, she advised that this particular type of streetwall condition or character does not exist. To that end, she advised that there is no applicable policy that directs that the Proposed Building to face both adjacent street frontages.

71Ms. Shiell advised that the Proposed Building has been located to address the adjacent collector road, providing frontage along, and both vehicular and pedestrian access from, Logie Street. In her opinion, this is appropriate when considering the planned condition along, and the existing character of, the portion of Logie Street in the vicinity of the Property. Addressing the City’s suggestion that the Proposed Building should front on both Logie Street and Deacon Crescent, she advised that there is no established or planned streetwall condition that would otherwise suggest that locating the Proposed Building facing both adjacent streets “would result in a better performing built form response” on the Property.

72Ms. Shiell suggested that, orienting the Proposed Building toward Logie Street “provides connections to the existing public sidewalk along Logie Street, in accordance with Official Plan direction and supporting generally accepted urban design principles for building placement and street address”.

73It was Ms. Shiell’s opinion that the Proposed Building has been “sited, massed, and oriented to achieve a harmonious fit within the existing surrounding context, providing sufficient spatial separation and transition to adjacent properties as required through the zoning by-law”.

74Further, Ms. Shiell advised that the Proposed Building has been located such that the proposed surface parking area will generally be screened from Logie Street, while incorporating landscaped areas along the perimeter of the Property and throughout the parking area.

75Ms. Shiell addressed the north edge of the Property, advising that the built form has been set back 15.0 m from the north lot line, and that, in the absence of applicable urban design policy and/or guidance, 11.0 m to 15.0 m is a “generally accepted separation distance and facing condition between two buildings of low- to mid-rise scale in order to achieve appropriate transition between differing intensities of scale, to maintain adequate access to sunlight and sky view, and to limit potential privacy concerns”. In this regard, she opined that the 15.0 m setback allows for sufficient spatial separation from the north and provides space for the proposed tree and shrub plantings that will give additional buffering to the north. Coupled with the 6.0 m open space buffer block, the spatial separation is approximately 21.0 m, with a total separation distance between the Proposed Building and the dwellings of approximately 28.5 m, including the rear yard setbacks of 7.5 m. In her opinion, this goes beyond what is required to provide an appropriate separation distance to achieve good transition.

76Mr. Bissett opined that the location of the Proposed Building satisfies urban design principles in relation to building orientation and siting and that, in this respect, the Property has been zoned with parameters requiring a maximum height, maximum density, and minimum setbacks related to the height of the building, and the orientation of the Proposed Building facing a collector street is supported by the TLOP. From the perspective of urban design principles, he advised that he had reviewed Ms. Shiell’s witness statement and he agreed with her conclusions with respect to this issue.

Issue 3.a. – City

77Mr. Tassiopoulos proffered that the Revised Site Plan does not satisfy the urban design principles of addressing both street frontages, and the location of the north wing along the north property line leads to an undue adverse overlook impact on the properties to the north and shadow impacts during the winter solstice. He contended that this could be remedied by relocating the building to the southwest corner, presenting an active street frontage and landscaping on Deacon Crescent.

78With respect to the building height and massing in relation to the surrounding context, Mr. Tassiopoulos had concerns related to the deployment of the height and massing, in his opinion causing undue adverse privacy and overlook impacts on the properties to the north. He opined that the surrounding context is not addressed due to the lack of enhanced elevation treatments along the south elevation of the Proposed Building and the lack of a main entrance onto Logie Street. Further, he added that neither shadow nor overlook would be a concern if the Proposed Building were relocated to the southwest corner of the Property.

79Mr. Tassiopoulos advised that urban design best practices and TLOP policy 3.2.7a) indicate that the main entrance of the Proposed Building and the walkway leading to it should be accessed from Logie Street to ensure an appropriate interface and streetscape relationship with the Proposed Building.

80As part of his review of the Revised Site Plan, Mr. Tassiopoulos considered the Urban Design Study (“UDS”) prepared by Bousfields Inc. for the Applicant and proffered that, in his opinion, the UDS did not satisfy the urban design principles listed in Issue 3. With respect to Issue 3.a., he proffered that other than stating that the Proposed Building responds to its context, no further comment was provided in the UDS to explain “how specifically locating the largest portion along the north property edge as opposed to the southern edge responds to its context”.

Issue 3.a. – Analysis

81In the absence of applicable policy directing the Proposed Building to face both street frontages, including a local road, the Tribunal prefers the evidence of the Appellant with respect to Ms. Shiell’s submission that the Proposed Building addresses Logie Street, being a collector road, and considering the existing character of Logie Street in the vicinity of the Property. Although it may be a valid option to site the Proposed Building at the corner of Logie Street and Deacon Crescent, that option is not before the Tribunal and the CKLOP and the TLOP do not provide direction in that regard.

82With respect to the siting of the Proposed Building along the north property line, the Tribunal finds that, in the absence of applicable urban design policy and/or guidance, the separation distance between the lots on the south side of Primeau Crescent and the Proposed Building is sufficient, given the proposed mitigation measures including landscaping, coupled with the 6.0 m open space block which provides for more than the separation required by the ZBL, and given the history of the zoning of the Property in the context of the surrounding subdivision.

Issue 3.b. – Building height and massing with respect to the surrounding context

Issue 3.b. – Appellant

83Ms. Shiell advised that in general, to ensure an appropriate built form/massing relationship with adjacent uses, and to mitigate built form impacts such as overlook and shadows, matters related to building height and massing are commonly dealt with through regulations contained in applicable zoning by-laws and supplanted by existing contextual conditions where appropriate. She proffered that the current zoning for the Property is carefully structured to ensure an appropriate built form transition to adjacent uses through the standards related to minimum exterior and interior side yard setbacks. She suggested that these setbacks regulate the proximity of the building to the adjacent lot line as the height of the Proposed Building increases, meaning that, as the building gets taller, it must be set back further from the exterior and interior side lot lines. She advised that, in this regard, the Revised Site Plan meets both setback provisions to achieve the maximum permitted height of 18.0 m and that the proposed 15.0 m setback is consistent with a generally accepted spatial separation for low- to mid-rise facing condition.

84In Ms. Shiell’s opinion, the height and massing of the Proposed Building are appropriate with respect to the surrounding context, are fully compliant with the ZBL, and the height permission is within the range of permitted heights for high density redevelopment blocks in the Lindsay Secondary Plan (“LSP”), despite it not being in effect at this time. She added that, although not applicable to the Application, it is worth noting the LSP height permission is reflective of Council’s most recent direction on high density development.

85Mr. Bissett proffered that the proposed height and massing are fully compliant with the ZBL. He furthered that a height of 18 m, translating to six storeys, is “generally at the lower end of the five to eight storey range of heights permitted in the Official Plan for high-density blocks”. In this respect, he opined that the proposed location has appropriate regard to its surrounding context.

Issue 3.b. – City

86Mr. Tassiopoulos proffered that, although he had no issue with the height, he had a concern “with the way that height and the building massing is proposed to be deployed”, opining that the location of the Proposed Building along the north property line creates undue adverse impacts in terms of loss of privacy through overlook onto the residential properties to the north. He added that, in addition, the lack of enhanced elevation treatments along the south elevation and the lack of a main entrance addressing Logie Street on the west elevation does not address the surrounding context.

Issue 3.b. – Analysis

87The Tribunal finds that Issues 3.a. and 3.b. are interrelated and that the Revised Site Plan addresses mitigation measures to aid in minimizing overlook. As the ZBL provides for increased setbacks in relation to increased height and provides for high density development on the Property, the Tribunal finds that the massing of the Proposed Building has been contemplated in relation to the zoning. In this respect, the urban design principles of building height and massing have been addressed through the zoning with respect to the surrounding context. Further, the elevation treatments and the main entrance being located internal to the Property do not directly relate to height and massing.

Issue 3.c. – Entrance locations on the building in relation to the street

Issue 3.c. – Appellant

88Ms. Shiell noted that it is common urban design practice to locate building entrances along street frontages so that they are clearly visible and directly accessible from the adjacent public sidewalk. Entrances are also typically treated with pedestrian weather protection in the form of canopies and/or awnings and provide for safe entry to the building with the incorporation of building lighting. In her opinion, the two proposed covered entrance locations, one along the Logie Street frontage at the northwest corner of the Property, and one internal to the site facing the surface parking area, are appropriate and well considered. She advised that both entrances are accessible via new pedestrian connections from the Logie Street sidewalk, both provide pedestrian weather protection while also signaling entry/prominence within the building elevation, and both are proposed to be treated with lighting and landscaping to provide for an attractive and comfortable pedestrian experience.

Issue 3.c. – City

89In addition to Mr. Tassiopoulos’ submissions in relation to Issues 3.a. and 3.b. with respect to the proposed entrance locations in relation to Logie Street, he proffered that urban design best practices and TLOP policy 3.2.7.a) “indicate that the main entrance of the building and the walkway leading to it should address and be accessed from the primary street, Logie Street, to ensure an appropriate interface and streetscape relationship with the proposed building”.

90Mr. Tassiopoulos noted that the UDS is silent with respect to entrance locations and that the main entrance is not located in relation to the primary street, being Logie Street, and does not provide a direct connection from the sidewalk or address the Logie Street frontage, but rather is oriented internally to the parking lot.

Issue 3.c. – Analysis

91The Tribunal finds that the proposed entrance locations are sufficient given the proposed upgrade to the building entrance along Logie Street in the Revised Site Plan, the proposed direct access from the adjacent public sidewalk, and the convenience of access to the Proposed Building from the parking area.

Issue 3.d. – Screening of mechanical rooftop elements

Issue 3.d. – Appellant

92Ms. Shiell advised that no mechanical rooftop elements are proposed, aside from those permitted in the ZBL as projections, and that, since the mechanical rooms are located within the building, there are no mechanical rooftop elements requiring screening.

Issue 3.d. – Analysis

93It was agreed to by both Parties that, since the mechanical elements are not proposed on the rooftop, this issue was no longer in question.

Issue 3.e. – Appropriate transition and compatibility with adjacent uses

Issue 3.e. – Appellant

94Further to her comments related to Issue 3.a., Ms. Shiell advised that, in her opinion, appropriate transition is achieved through the proposed 15.0 m setback to the building from the north lot line, and the cumulative 21.0 m separation to the residential properties to the north is further supportive of the achievement of transition between uses of differing scale and/or intensity.

95Ms. Shiell again spoke of the application of a 45-degree angular plane from the northerly properties, opining that it demonstrates that the Proposed Building provides sufficient distance and an appropriate facing condition between adjacent uses. To further address potential concerns of overlook to the north, Ms. Shiell submitted that the Revised Site Plan also incorporates a new 1.8 m wooden privacy fence and significant landscaping, including new tree and shrub plantings, along the north edge of the Property, as well as tinted balcony glazing.

96In terms of compatibility of adjacent built form, Ms. Shiell opined that it is important to distinguish that compatibility does not mean ‘identical to’ or ‘the same as’. In her opinion, adjacent built forms of differing scale can co-exist when appropriate measures have been taken to ensure appropriate fit and transition, such as in this case.

97In terms of compatibility of adjacent uses, Ms. Shiell noted that the Revised Site Plan implements the high-density residential use intended for the Property “through the in-force zoning and in conformity with the Official Plan direction for such use”. In her opinion, together with the built form and urban design measures outlined above, the Revised Site Plan achieves appropriate transition and compatibility with the low-rise residential properties to the north.

98Mr. Bissett concurred that, in his opinion, the 21 m separation provides for appropriate transition and compatibility.

Issue 3.e. – City

99Mr. Tassiopoulos addressed the urban design principle of transition and compatibility with adjacent uses by stating that the positioning of the north wing of the Proposed Building along the north property line “unnecessarily creates undue adverse impacts of loss of privacy through overlook into the rear yards” of the properties to the north. He added that the proposed fencing along the south property line will not provide as appropriate a transition as a built form would, as it will “provide little visual interest along the street and create a monotonous interface” with the properties to the south. Coupled with the lack of sufficient landscaping along the south property line, he opined that, for these reasons, the Proposed Building and landscape plan do not provide an appropriate transition to adjacent residential uses and streetscape.

100In his witness statement, Mr. Tassiopoulos noted that the UDS states that “[i]t is envisioned that the site will provide for a landscaped perimeter to complement the adjacent public realm and Logie Street Park, as well as to provide transition to the lower scale developments. The project will also incorporate landscape island internal to the surface parking lot to break up the parking area and increase pedestrian comfort”. He opined that this statement is “erroneous as the proposed landscape plan does not provide a landscaped perimeter and only addresses Logie St. through planting; the north and south edges of the perimeter is defined by a 1.8 m high wood privacy fence and not a landscaped edge”. He added that this is not an appropriate transition to ensure compatibility with the residential properties to the north and south.

Issue 3.e. – Analysis

101In addition to the analysis provided in Issue 3.a. with respect to the north property line, the Tribunal prefers the evidence of the Appellant in relation to transition and compatibility with adjacent uses. As noted by Ms. Shiell, compatibility does not require the development of the Property to be ‘identical to’ or ‘the same as’ the surrounding uses. Given that the zoning has been in place for many years, the intent is for the Property to be developed for the proposed use, the required setbacks are met and sufficient landscaping is proposed, including the addition of landscaping along the north and south property lines, the Tribunal finds that there is appropriate transition and compatibility with adjacent uses.

Issue 3.f. – Mitigation of adverse impacts to adjacent uses

Issue 3.f. – Appellant

102Ms. Shiell stated that it is important to note that any form of ‘as-of-right’ development on the Property would introduce impacts on the adjacent and surrounding properties. With respect to the Property, it is her opinion that several appropriate measures have been utilized to mitigate potential impacts from the proposal on adjacent uses, including the height and setback requirements to ensure that overlook and shadow impacts are minimized, new tree and shrub plantings and a 1.8 m wooden privacy fence along the northern lot line, and tinted glazing on balconies to further obscure views from within the apartment units.

103With respect to shadowing, Ms. Shiell advised that a Shadow Study was undertaken to illustrate and evaluate the impact of the shadows cast by the proposal on the spring/fall equinoxes and the summer/winter solstices, to assist in determining the appropriateness of the proposed built form. She advised that the Shadow Study demonstrates that the shadowing from the Proposed Building on the surrounding context are adequately limited, including on Logie Park to the west, adjacent sidewalks/pedestrian walkways, rear yards of the residential properties to the north, and the Victoria Rail Trail to the east. In her opinion, there are no undue shadows resulting from the Proposed Building and that the shadowing on adjacent properties is appropriately representative of an ‘as-of-right’ condition.

104Mr. Bissett added that the height and setback requirements of the ZBL ensure that overlook and shadowing is mitigated. In addition, he proffered that he relied on, and agrees with, the opinions of Ms. Shiell on this issue.

Issue 3.f. – City

105Mr. Tassiopoulos proffered that the adverse impacts of overlook and shadowing in the winter months to the properties to the north have not been mitigated through a reorientation of the building, stepbacks to the north elevation, or other changes. He added that the fencing along the north and south property lines do not mitigate the adverse impacts or provide transition or landscape buffering.

106Mr. Tassiopoulos did not take issue with the 45-degree angular plane evaluation undertaken by the Appellant measured from the rear lot line of the lots on Primeau Crescent but noted that it should have been measured from the property line of the Drainage Block, where the plane would then be penetrated by the Proposed Building. He characterized this as “splitting hairs” but wanted to draw attention to it.

107In addition, Mr. Tassiopoulos noted that the addition of tinted balconies is typically used to mitigate views of balconies rather than views from balconies, and in that respect is not really a mitigation measure against overlook. Further, he opined that, with 48 balconies overlooking the rear yards of the properties on Primeau Crescent, the impact of overlook is multiplied to some extent.

Issue 3.f. – Analysis

108The Tribunal notes that, as Ms. Shiell proffered, that any form of development on the Property that meets the ZBL requirements would introduce impacts on adjacent properties. The mitigation of those impacts has been addressed primarily through the setbacks and landscaping as required by the ZBL in addressing mitigating impacts to adjacent uses. The Tribunal agrees with Ms. Shiell that there are no undue shadow impacts resulting from the Proposed Building and that the shadowing on adjacent properties is appropriately representative of an ‘as-of-right’ condition.

Issue 4 – Constitution of Good Land Use Planning

Issue 4 – Appellant

109Mr. Bissett opined that the Revised Site Plan constitutes good planning as it implements a purpose-built rental apartment building on a site that is specifically designated and zoned for such use. In his opinion, the proposal is in full conformity with the ZBL and represents a ‘fully as-of-right’ development for the Property and that site plan matters relating to connectivity have been addressed through adding walkways linking to the sidewalks and the Victoria Rail Trail in locations requested by the City. Further, he added that additional landscaping and tinting of balconies have been incorporated to mitigate concerns of overlook to the north. Given the Provincial and Municipal interest in achieving purpose built rental housing, it was his opinion that the Revised Site Plan, which provides for purpose build rental housing, fully complies with the ZBL, provides appropriate site plan design, and represents good planning.

110Ms. Shiell opined that the Revised Site Plan “constitutes good planning, in particular from an urban design perspective” as it “implements a 6-storey, 18.0-metre-tall residential building on a site that is specifically designated and zoned for that use at that scale” and is in full conformity with the ZBL and is reflective of an ‘as-of-right’ development for the Property.

111Ms. Shiell opined that the Revised Site Plan is “sensitive to its surrounding context, in terms of its scale, height, massing, orientation, and materiality” and provides “appropriate setbacks from the street and abutting property lines, whereby these setbacks are appropriately treated with enhanced landscaping”. It was her opinion that the Revised Site Plan “enhances and expands the public realm and improves the pedestrian experience through the hard and soft landscaping and connections to public sidewalks and the Victoria Rail Trail”.

112Ms. Shiell proferred that the Revised Site Plan provides “adequate spatial separation and transition to nearby low-rise residential properties, minimizing potential privacy issues between adjacent properties” and that “additional landscaping and tinting of balcony glazing” have been incorporated “to further mitigate concerns of overlook to the north”. Additionally, she opined that the shadow impacts from the Proposed Building are adequately limited and are reflective of those of an ‘as-of-right’ building on the Property.

113Ms. Shiell concluded that it is her opinion that the Application, which fully complies with the ZBL, conforms to applicable Official Plan direction, and provides appropriate architectural and site plan design, represents good planning and urban design. She recommended the approval of the Application by the Tribunal.

Issue 4 – City

114Mr. Derworiz opined that, absent a resolution of his issues and concerns with the Revised Site Plan, the Revised Site Plan does not constitute good planning as it does not satisfy the applicable policies of the CKLOP and the TLOP and is not designed in keeping with urban design best practices. In his opinion, the Revised Site Plan misses the opportunity to contribute positively to the adjacent residential area and is insular, having little regard to enhancing the existing neighbourhood.

115It was Mr. Tassiopoulos’ opinion that the Revised Site Plan “does not meet the policy intent and requirements of the Official Plan or urban design best practice and should not be approved”.

Issue 4 – Analysis

116The Tribunal prefers the evidence of the Appellant in this regard and finds that the Revised Site Plan represents good land use planning given the use is permitted on the Property based on the Planning Act approvals that were put in place at the same time as the surrounding residential land uses. The zoning on the Property contemplated the setbacks required to achieve the development of a high density use and, at the time the zoning was put in place, the City did not have urban design guidelines. In this respect, the ZBL requirements were known to be the full requirements to meet any compatibility and character issues with adjacent uses and the surrounding area.

POLICY FRAMEWORK

117Mr. Bissett and Ms. Shiell both opined that the Application has regard for matters of provincial interest, is consistent with the policies of the PPS and conforms to the Growth Plan, the CKLOP and the TLOP.

118Mr. Derworiz and Mr. Tassiopoulos both opined with a countervailing viewpoint on all policy documents, in that the Application does not have regard for matters of provincial interest, is not consistent with the policies of the PPS, does not conform to the Growth Plan, the CKLOP or the TLOP.

The Act

119Section 2 of the Act was fully addressed by both Parties as addressed in paragraphs [54] to [63]. The Appellant found that the Revised Site Plan meets s. 2 of the Act while the City found that it does not.

PPS

120Mr. Bissett opined that the Revised Site Plan is consistent with the PPS as it meets policy 1.1.1 related to healthy, livable and safe communities, policy 1.1.3 related to development in settlement areas, policy 1.3.1 related to promoting economic development, policy 1.4.3 related to providing a range and mix of housing options, policy 1.7.1 related to long-term economic prosperity and policy 4.6 related to the official plan being the most important implementation vehicle of the PPS.

121Mr. Bissett advised that the Revised Site Plan provides for a diverse range of housing and is well served by community facilities and parks. He opined that the relevant policies of the PPS are met through the development of the Proposed Building on the Property, as the Revised Site Plan implements the CKLOP and the TLOP and is in full compliance with the ZBL, which is deemed to conform to the Official Plans.

122In her witness statement, Ms. Shiell stated that she had reviewed Mr. Bissett’s witness statement and agrees with, and relies on, the information provided by him related to the PPS.

123Neither Mr. Derworiz nor Mr. Tassiopoulos provided an opinion on the consistency of the Revised Site Plan with the PPS.

Growth Plan

124Mr. Bissett opined that the Revised Site Plan conforms to the Growth Plan as it meets policy 2.2.1.4 related to achieving complete communities, policy 2.2.6 related to addressing housing needs, and policy 5.2.5 related to achieving minimum intensification and density targets.

125It was Mr. Bissett’s opinion that the Revised Site Plan conforms to the Growth Plan as it is within a designated greenfield area that is specifically designated and zoned for the Proposed Building, which meets the applicable minimum density target in the Growth Plan for the City.

126In her witness statement, Ms. Shiell stated that she had reviewed Mr. Bissett’s witness statement and agrees with, and relies on, the information provided by him related to the Growth Plan.

127Neither Mr. Derworiz nor Mr. Tassiopoulos provided an opinion on the conformity of the Revised Site Plan to the Growth Plan.

CKLOP

128Section 5.2 of the CKLOP was an issue of the City related to housing objectives and is addressed in paragraphs [40] to [46].

129With respect to the remainder of the CKLOP, Mr. Bissett opined that the Revised Site Plan, being a purpose-built rental apartment building, meets policy 2.3.2 which encourages the provision of a broad mix and range of housing, including the provision of housing types, densities and tenures that are affordable to moderate- and lower-income households, and residential intensification in the built-up area. He added that policy 2.5.1 states that attention will be given to special population groups, including seniors, and that the Proposed Building is anticipated to provide housing options for seniors who are seeking to age in place, and young professionals who may have difficulty entering the housing market.

130In Mr. Bissett’s opinion, the Revised Site Plan conforms to the CKLOP as it “provides for new purpose-built rental housing in a serviced location intended to accommodate growth in the City, at an appropriate density and form that is fully compliant with the current zoning by-law”.

131Ms. Shiell advised that, in her opinion, other than section 5.2 of the CKLOP, there is limited policy direction or urban design consideration provided in the CKLOP that is applicable to the Property.

132Further to his evidence on section 5.2 of the CKLOP, Mr. Derworiz stated that it was his opinion that the Revised Site Plan does not conform with the CKLOP. Mr. Tassiopoulos did not provide an opinion on the conformity of the Revised Site Plan with the CKLOP.

TLOP

133Policy 4.1.2.2 a), b) and g) and policy 3.2.7 a) of the TLOP were issues of the City related to the location and orientation of the Proposed Building and are addressed in paragraphs [20] to [36] and [48] to [51].

134With respect to the remainder of the TLOP, Mr. Bissett opined that the Revised Site Plan achieves the policies of the TLOP. In particular, Mr. Bissett addressed the following policies, to which he opined that the Revised Site Plan meets:

• Policy 3.2.2 – related to establishing new development areas as an extension of the existing community and ensuring the continuance of the character of the Town within new development areas, in part by providing access to river and valley lands and forest areas from new development where appropriate, providing linked open space from new development to the existing community, and locating higher density development adjacent to Provincial, County, arterial or collector roads;

• Policy 3.2.7 – related to, among others, roads providing an attractive visual experience, encouraging units to front onto collector roads and planting street trees to provide a rhythm to the street;

• Policy 3.2.9 – related to developing a pedestrian and cyclist friendly urban structure that is accessible;

• Policy 4.1.1 – related to the permitted uses in the Residential designation;

• Policy 4.1.2.2 – related to medium density uses, which also apply to high density uses and which is addressed in Issue 1.a. in paragraphs [20] to [36]; and

• Policy 4.1.2.3 – related to high density uses.

135With respect to policy 3.2.2, Mr. Bissett opined that the Revised Site Plan provides for high density development along a collector road and provides new pedestrian connections to Victoria Rail Trail, and to the public sidewalk leading to Logie Park to the west.

136With respect to policy 3.2.7, which subsection a) is addressed in Issue 1.c. in paragraphs [48] to [51], Mr. Bissett opined that the Revised Site Plan provides for the Proposed Building to be “aligned with and fronting the collector road (Logie Street), with new street tree plantings wrapping the frontages and perimeter of the site to ensure an attractive visual appearance, contributing positively to the streetscape in accordance with this policy”.

137With respect to policy 3.2.9, Mr. Bissett proffered that the Revised Site Plan provides direct connections to the sidewalk along Logie Street and the Victoria Rail Trail. As well, he stated that the landscape plan includes a range of street trees, shrubbery, and other plantings “to provide for an attractive and comfortable pedestrian realm along Logie Street, as well as plantings, fencing and beaming along Deacon Street to provide for an attractive frontage along Deacon Street”.

138With respect to policy 4.1.1, 4.1.2.2 and 4.1.2.3, Mr. Bissett advised that the maximum density for high density residential developments shall not exceed 125 units/ha, and that the Property is zoned in accordance with this policy as ‘Residential High Density (RH1)’ with a maximum height of 18 m (six storeys at 3 m per floor) and a maximum 125 units/ha. The policy provides that the criteria in policy 4.1.2.2 pertaining to medium density development also apply to high density residential developments and Mr. Bissett’s opinion on the criteria is provided in paragraphs [20] to [25].

139Ms. Shiell opined that the Revised Site Plan meets policies 3.2.1 and 3.2.2 of the TLOP, related to the character of the Town, providing linkages to natural areas and locating higher density development adjacent to major roads, including collector roads. She added that the Revised Site Plan provides for high-density residential development along a collector street and introduces new pedestrian connections to link the Property with the Victoria Rail Trail, as well as to the public sidewalks along Logie Street.

140With respect to policy 3.2.7 f) related to street trees, Ms. Shiell proffered that a variety of new street tree plantings are planned along the frontages of both Logie Street and Deacon Crescent as well as shrubs and other plantings to provide for an attractive and comfortable pedestrian realm along Logie Street. She added that, in addition, shrub plantings, decorative wood fencing, and berming along Deacon Street assist in enhancing the pedestrian experience, ensuring an attractive visual appearance, and contributing positively to the streetscape.

141With respect to policy 3.2.9 related to a pedestrian and cyclist friendly urban structure, Ms. Shiell stated that there are existing sidewalks along Logie Street and Deacon Crescent and that the Revised Site Plan introduces two direct connections from the Property to the sidewalk on Logie Street, a direct connection to the Victoria Rail Trail. It was her opinion that Revised Site Plan “conforms to this policy to the extent that it may be considered relevant”.

142With respect to policy 4.1.2.3 related to high density residential uses, Ms. Shiell advised that the maximum density for such uses shall not exceed 125 units/ha and that the Property is zoned in accordance with this policy.

143Ms. Shiell provided her overall opinion that, from an urban design perspective, the Revised Site Plan conforms to the TLOP.

144Other than Mr. Derworiz’ evidence regarding Issue 1.a, related to policy 4.1.2.2 a), b) and c) of the TLOP, neither Mr. Derworiz nor Mr. Tassiopoulos provided an opinion on the conformity of the Revised Site Plan with the TLOP.

LSP

145Mr. Bissett advised that the LSP was not in effect at the time the Application was filed, having been approved by the Tribunal on July 17, 2023, and therefore is not applicable policy for the consideration of Revised Site Plan. He did, however, provide a review of the LSP and provided his opinion that the Revised Site Plan generally conforms to the policies of the LSP. Similarly, Ms. Shiell proffered that, from an urban design perspective, the Revised Site Plan “substantially conforms to the policy direction related to the building height and massing, and the limited direction related to urban design contained therein”.

ZBL

146Both the Appellant and the City agree that the Revised Site Plan meets all the requirements of the ZBL.

Participant Concerns

147The concerns of the Participants centred around the following topics, each of which was addressed by the witnesses through their respective testimony:

• Site Plan / Urban Design – deficiency with respect to the site plan guidelines, does not respect well-accepted urban design principles, undesirable urban design, buildings should front on and frame the public streets, inconsistency with the LSP, insufficient room for outdoor activities on site, deficient streetscape, and the parking lot dominates the site, lack of landscaping;

• Impacts – significant negative impacts on the neighbours and future tenants of the building with respect to loss of privacy, noise, visual impacts, visual and loss of privacy impact on the adjacent uses to the north, massing/scale concerns with residents of Primeau Crescent, shadows, privacy, obstruction of views, reduced property values, reduced quality of life, amenity patio and pickle ball court immediately adjacent to backyards, exposure of parking lot to residents on Deacon Crescent; and

• Suggestions – reduce density, provide underground parking, reorient the Proposed Building to front on Logie St. and Deacon Crescent.

Conclusions

148It was Mr. Bissett’s and Ms. Shiell’s submission that the Application is consistent with the applicable policies of the PPS, conforms to the Growth Plan and the policies of the CKLOP and TLOP, represents good land use planning and should be approved.

149It was Mr. Derworiz’s and Mr. Tassiopoulos’ submission that the Application does not meet the policy framework, does not represent good land use planning, and should not be approved.

ANALYSIS AND FINDINGS

150Having regard for the matters of provincial interest as set out in s.2 of the Act, the Tribunal finds the Application provides for an appropriate development of the Property. The Property represents an appropriate location for the level of intensification proposed as it is situated on a collector road which is served by existing municipal infrastructure, including transit, is pre-zoned for the intended use, and will increase the supply and range of housing types available within Lindsay. The Application will provide for the orderly development of the community and contribute to meeting the housing demand in the City. The Tribunal finds that the proposed high-density built form respects the adjacent land use context within the parameters of the zoning standards, as were established and contemplated for the development of the Property.

151The Tribunal finds that the Application is consistent with the policies of the PPS. The Tribunal, in consideration of the applicable policies contained with the PPS, notes that the direction contained in the policies relating to residential intensification and the efficient use of land and infrastructure have particular relevance in the context of this matter. The Tribunal notes that the PPS emphasizes the promotion of transit-supportive development and encourages an increase in the mix and supply of housing.

152The Growth Plan emphasizes the optimization of the use of land and infrastructure and, in particular, transit infrastructure. The Tribunal accepts the evidence of Mr. Bissett and finds that the Application conforms to the policies of the Growth Plan as it contributes to the creation of a complete community and appropriately optimizes the use of the Property. The Property is served by existing municipal infrastructure and is located on a collector road which is served by transit.

153Although it may be urban design best practice to locate buildings on corner lots to address both street frontages, the witnesses did not direct the Tribunal to any policies in either the CKLOP or the TLOP requiring or encouraging a building to front on a local road or to address both street frontages. The urban design guidelines of the Town of Caledon, the Town of Newmarket, and the City of Peterborough were tendered as examples of urban design best practices but, without similar direction in either the CKLOP or the TLOP, and without City endorsed urban design guidelines to direct site planning, there is no requirement, policy or guidance to instruct the focus of the Proposed Building to the southwest corner of the Property.

154It is relevant and notable that the City’s first submission comment letters, authored, in part, and signed by Mr. Derworiz while employed by the City (dated March 11, 2022 and April 5, 2022), do not include any comment on the proposed location of the Proposed Building at the northwest corner of the Property. In addition, the City’s Director of Development Services indicated that “the City is supportive of the proposal” in an email sent on May 10, 2022 to Mr. Bissett and cc’d to Mr. Derworiz.

155It is also relevant and notable that the second submission comment letter, also authored, in part, and signed by Mr. Derworiz while employed by the City (dated August 5, 2022), offers the City’s support for the building orientation at the northwest corner of the Property. It is also notable that Mr. Tassiopoulos did not undertake a site visit.

156Although not now supported by the City, and opposed by the Participants to the north, the placement of the Proposed Building as proposed through the Revised Site Plan meets the requirements of the City through policy and zoning, and through their formal comments provided throughout the processing of the Application.

157The alternative proposed siting of the building put forward by the City is not before the Tribunal, has not been vetted by the City or it’s consultants, nor is it supported by required reports and associated analysis to ascertain whether it has merit, is feasible and meets the Issues advanced by the City, including whether it represents good planning. Further, it is not appropriate nor relevant to compare the Revised Site Plan to some other form of development that has not been considered, analysed, nor tested against any parameters, policies, or zoning standards. In this respect, it is rather unhelpful to the Tribunal in its consideration of the Revised Site Plan.

158In this regard, the Tribunal finds no basis on which to deny the Application. It is supported by the Appellant’s witnesses and, despite being opposed by the City at the Hearing, has not been opposed by the City throughout the processing of the Application.

159The City had many opportunities, over the course of the processing of the Application, to offer and advance its opposition to the proposed location of the Proposed Building. It did not do so except for an indication in an email from the Director of Development Services, sent to Mr. Bissett on April 5, 2022 and based on a review of the first submission Site Plan, that it would be the City’s ‘preference’ to site the Proposed Building at the southwest corner “as this would likely impact no one from a privacy perspective” and that “this location may be best in the long run”. The email closed with an invitation that the City “[w]elcome[s] your thoughts on this” but stopped short of indicating opposition to siting of the Proposed Building at the northwest corner.

160The evidence from both the City and the Appellant showed that this ‘preference’ was not pursued by the City. The City provided support to the subsequent Site Plan submissions and did not raise the ‘preference’ again throughout the remaining processing of the Application, and only formally advanced opposition to the Revised Site Plan once it had been appealed.

161In consideration of the evidence of Mr. Bissett, Ms. Shiell, Mr. Derworiz and Mr. Tassiopoulos, the Tribunal is satisfied that the Application has sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Act, is consistent with the PPS, conforms to the Growth Plan and to the policies of both the CKLOP and the TLOP, is in the public interest and represents good planning.

162The Revised Site Plan will result in the development of a vacant site pre-zoned for the Proposed Building and the provision of additional housing options in a transit supportive manner on a collector road.

163The Tribunal allows the appeal and approves the SPA in principle. The Final Order will be withheld until the Parties have provided the Tribunal with confirmation that the Site Plan Agreement has been entered into between the Parties.

INTERIM ORDER

164THE TRIBUNAL ORDERS that the Site Plan prepared by KWA Site Development Consulting Inc. dated July 11, 2023, is approved in principle, with the Final Order withheld until such time as the Parties provide written confirmation to the Tribunal that the Site Plan Agreement has been entered into between the Parties.

165THE TRIBUNAL ORDERS that, in the event the Parties do not provide confirmation that the Site Plan Agreement has been entered into by Tuesday, April 30, 2024, the Parties shall provide a written status report to the Tribunal.

166The Member shall remain seized of this matter for the purposes of issuance of the Final Order.

167The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call in the event any difficulties arise in fulfilling the condition of this Order.

“C. I. Molinari”

C. I. MOLINARI

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.