Guelph Old City Residents Association Inc. v. City of Guelph, 2024 CanLII 7640

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 01, 2024 CASE NO(S).: OLT-22-002472 (Formerly PL161295)

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

Appellant: Guelph Old City Residents Association Inc. Appellant: Rykur Holdings Inc. Appellant: Upper Grand District School Board Subject: By-law No. (2016)-20113 Municipality: City of Guelph OLT Case No.: OLT-22-002472 Legacy Case No.: PL161295 OLT Lead Case No.: OLT-22-002926 Legacy Lead Case No.: PL161294

Heard: April 3-5, 11, 13-14, 2023 and May 25-26, 2023 by video hearing

APPEARANCES:

Parties Counsel

Upper Grand District School Board Alan M. Heisey

City of Guelph Allison Thornton

DECISION DELIVERED BY HUGH S. WILKINS AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This proceeding arises from appeals brought by Rykur Holdings Inc. (“Rykur”), the Upper Grand District School Board (“School Board”), and the Guelph Old City Residents Association Inc. (“Residents Association”) regarding the passage by the City of Guelph (“City”) of a zoning by-law amendment relating to the property located at 75 Dublin Street North (“subject property”). The proposed Zoning By-law Amendment (By-law No. (2016)-20113) would rezone the subject property from I.1 (Institutional) Zone to D.29 (Specialized Downtown 2) Zone.

2The City’s downtown area is dominated by The Basilica of Our Lady Immaculate, which stands on a hill overlooking the City centre. It is a federally designated National Historic Site and is surrounded by other historic buildings, including the St. Agnes School, Rectory, and the Loretto Convent. The hill with its assembly of buildings is commonly referred to as “Catholic Hill”.

3The subject property lies adjacent to the historic buildings on Catholic Hill. It is a 0.15 hectare parcel situated at the north-east corner of Cork Street West and Dublin Street North. It formerly had tennis courts located on it and is now vacant

4Down the hill to the north, adjacent to the subject property, is the Central Public School (“school”) located at 97 Dublin Street North. A school has been located here since the 1870s. The current school was built in 1968. It is a low-rise modernist structure.

5The lands to the east and west of the subject property are generally low-rise detached residential dwellings.

6The subject property is designated as “Mixed Use 2 – Downtown Secondary Plan” under Schedule C – Land Use Plan to the City’s Downtown Secondary Plan. As noted above, it is presently zoned as I.1 (Institutional) Zone.

7In 2015, the City initiated the drafting of a comprehensive zoning by-law covering the City’s downtown area to bring zoning there into conformity with the City’s Downtown Secondary Plan. During that process, Rykur, requested the City to re-zone the subject property to facilitate the development of affordable housing. The City’s planning staff prepared a draft amendment to the City’s Official Plan and a draft site-specific zoning by-law amendment to facilitate the request and permit the construction of a five-storey residential building.

8On November 30, 2016, City Council refused to adopt the proposed Official Plan Amendment; but it approved site-specific zoning of the subject property. The Zoning By-law Amendment rezones the subject property from I.1 (Institutional) Zone to D.29 (Specialized Downtown 2) Zone to permit development in accordance with the Downtown Secondary Plan Mixed Use 2 land use designation. This would permit a four-storey mixed use development on the subject property rather than the five-storey development sought by Rykur. The zoning would permit, among other things:

• the same permitted uses as allowed in Downtown-2 (D-2) zoning, including residential, retail, service, office, community, hospitality, and other uses;

• a minimum building height of two storeys and a maximum building height of four storeys, with a maximum average building storey height of 3.2 metres (“m”) and a maximum geodetic height of 361 m above sea level;

• minimum front yard and exterior side yard setbacks of 3 m;

• a minimum side yard setback of 4.5 m adjacent to the school;

• a minimum stepback of 5 m for any rooftop mechanical equipment, elevator, or stairway penthouse on all sides;

• no overlook from any outdoor amenity space (including rooftop areas, terraces and balconies) to the north towards the school; and

• one parking space per dwelling unit, 0.05 spaces of visitor parking per 10 dwelling units.

9In December 2016, Rykur, the Residents Association, and the School Board each appealed the proposed Zoning By-law Amendment.

10Meanwhile, on July 12, 2017, City Council approved its new comprehensive Zoning By-law Amendment for the Downtown area, which zones the area as Downtown-2 (D-2). The subject property remained as legacy zoning due to the appeals. The new Downtown 2 (D-2) zoning does not apply to it.

11On September 25, 2017, Rykur filed a new application for an Official Plan Amendment, again seeking to build a five-storey development on the subject property. On April 18, 2018, City Council refused the Official Plan Amendment application. On May 22, 2018, Rykur appealed that decision as well.

12On July 20, 2021, Rykur reached a proposed settlement with the City. Rykur agreed to withdraw its Official Plan Amendment and the Zoning By-law Amendment appeals provided that modifications to the zoning were made regarding side yard setback regulations adjacent to the school (3 m rather than 4.5 m) and visitor parking requirements (from 0.05 spaces per 10 dwelling units to 0.05 spaces per 20 dwelling units). The proposed zoning does not require affordable or other housing.

13On March 23, 2023, the Residents’ Association withdrew its appeal.

14The School Board’s appeal remains outstanding and is the focus of this Decision.

15Rykur did not attend the Hearing. It provided no evidence or submissions.

ISSUES

16The issues that the Tribunal must consider when adjudicating a zoning by-law amendment appeal under s. 34(19) of the Planning Act include whether the proposed instrument:

• is consistent with the Provincial Policy Statement, 2020 (“PPS”);

• conforms with applicable provincial plans (in this case, A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”));

• conforms with applicable official plans (in this case, the City’s Official Plan); and

• represents good planning.

In making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and have regard to the City’s decision passing the proposed Zoning By-law Amendment and any information and materials that City Council received in relation to the matter when making its decision (as required under under s. 2.1(2) of the Planning Act).

17On July 11, 2022, City Council adopted Official Plan Amendment 80 (“OPA No. 80”). It was approved by the Minister of Municipal Affairs and Housing on April 11, 2023. On December 6, 2023, the passage of the Official Plans Amendment Act (Bill 150) made further changes to OPA No. 80, which the Tribunal must apply in making its decision. Under Bill 150, the Tribunal must determine whether the proposed Zoning By-law Amendment conforms with the final version of OPA No. 80 as approved under Bill 150. Subsequent to the passage of Bill 150, the Tribunal reached out to all of the Parties to seek input on whether Bill 150 has any impacts on the potential outcome of this matter. The School Board and the City provided responses to state that Bill 150 does not impact the matter that was heard. They agreed that Bill 150 requires the proposed Zoning By-law Amendment to conform with OPA No. 80. No response was received from Rykur.

18In the present case, the core issues to be adjudicated focus on the application of the above-noted statutory and policy requirements in relation to:

1. compatibility and transition issues;

2. cultural heritage issues; and

3. transportation and traffic safety issues.

Each is addressed below.

EVIDENCE, SUBMISSIONS, AND FINDINGS

19The School Board produced the following witnesses:

• Amy Ewing - the Tribunal qualified her to provide opinion evidence in the area of early childhood education;

• John Paul Morgan - the Tribunal qualified him to provide opinion evidence in the area of solar power electrical engineering, with special expertise in solar power, light and indirect light;

• Christopher Borgal - the Tribunal qualified him to provide opinion evidence in the areas of heritage planning, heritage architecture, and urban design;

• John Northcote - the Tribunal qualified him to provide opinion evidence as a transportation engineer; and

• Christian Chan - the Tribunal qualified him to provide opinion evidence in the area of land use planning.

20The City produced the following witness:

• Katie Nasswetter - the Tribunal qualified her to provide opinion evidence in the area of land use planning.

1. Compatibility and Transition Issues

Evidence and Submissions

Evidence and Submissions of the School Board

21Mr. Chan said that a school has been operating adjacent to the subject property for almost 150 years. The school site is a small 1.6 acre parcel. He said it has a modest play area at the rear and a “peace garden” located on the side, directly adjacent to the subject property. The peace garden is used by students as a quiet area. He said the proposed development would consist of a four-storey structure with a 3 m setback from the school. He said the grade of the schoolyard is roughly 5 m below that of the subject property so that a four-storey development would in fact appear as a 5.5 to six-storey building from the yard. He said this would have serious consequences in terms of sunlight coverage for the school and its yard, especially in winter. He said as much as 50 percent of schoolyard sunlight would be lost in the wintertime and the peace garden would lose all its direct sunlight. He said the school’s kindergarten classrooms would lose access to direct sunlight and solar panels on the school roof would be shaded and become less effective. He said the school’s roof top solar panels presently receive unobstructed sunlight year-round. The School Board sells the energy generated from the panels to Guelph Hydro.

22Ms. Ewing is the principal of the school. She said the proposed development would be detrimental to the school community. Like Mr. Chan, she said it would result in the loss of direct sunlight for much of the schoolyard. She said it would eliminate direct sunlight in winter for the school’s kindergarten classrooms, reduce sunlight in the kindergarten play areas, eliminate direct sunlight in the peace garden, and impact the effectiveness of the school’s roof-top solar panels. She stated that the school’s outdoor space is already undersized and the impacts would reduce the utility of the existing space. She noted that a large area of the existing schoolyard is already closed off in winter due to safety issues.

23Ms. Ewing discussed the health benefits for children of having access to the outdoors and natural light. She said children need access to the natural environment and green space, which can improve their learning, mental health, and well-being. She said this has a positive impact on their physical activity and prosocial behaviour. She said children flourish when they have an opportunity to do things outside and the school tries to make use of its outdoor space as much as possible. She said natural light also provides a feeling of warmth in the classrooms and positively affects students. She opined that reducing students’ access to natural sunlight would negatively impact their educational success. In particular, she said the proposed development would impact the warmth and sunlight at the school and its play areas. She said children seek out sunlight in the winter months, which would largely be unavailable in the schoolyard, if the proposed development goes ahead. She said the school presently uses all its available outdoor space and given the configuration, space constraints, and terrain of the school’s playground, it would be very difficult to move the playground to another area.

24Ms. Ewing also raised privacy concerns. She said the idea of having residential units facing the schoolyard would reduce the school’s ability to keep students safe and prevent residents from inappropriately watching students play. Moreover, she said the proposed Zoning By-law Amendment would permit a restaurant or even a bar and patio serving alcohol overlooking the schoolyard, which would cause noise, privacy, and safety issues.

25Mr. Morgan prepared models to determine the light and thermal energy impacts of the proposed development on the school and its outdoor areas. He said his shade studies examined the impacts of a range of heights for the proposed development, including two, three, and four storeys, as well as the existing baseline conditions. Using a European Union standard on Daylighting in Buildings (EN 17037:2019), he calculated the amount of sunlight that the school’s classrooms should receive. He said the minimum should be two hours of direct sunlight per day. He said this standard is presently being met; but he said it would not be met if the proposed development were built. He described the loss of direct sunlight impacts of the proposed development on the student drop-off area, the kindergarten play area, the rear outdoor play area, and the peace garden. Using sun path diagrams, he discussed impacts at various times of the year based on the proposed setbacks and building height. He said the affected areas would be most severely impacted in winter. He stated that sunlight provides thermal energy that is absorbed by buildings and impacts building heating. He said a comparative thermal analysis was prepared and that the heating of the school would be impacted by the proposed development.

26Mr. Morgan said every metre of sunlight is a metre of warmth in which children can play. Based on his modeling, he said shadow and cooling problems could be significantly reduced with increased setbacks, the inclusion of stepbacks on the side of the proposed development facing the school, or a reduced height of the proposed development. He said the cumulative impacts of the loss of light otherwise would be substantial. He said a two-storey development with setbacks of 6 m from the school would mitigate the reduction of direct and indirect sunlight to the school’s full day kindergarten classroom and enable the peace garden and some parts of the school’s rear playground to have two hours of sunlight per day. He said the location of a mechanical penthouse on the top of the proposed development would also have shadow impacts and that it should be located back from the building’s edge closest to the school.

27Mr. Morgan said he used modelling software to calculate the impacts of the proposed development on the photo voltaic generation of the solar panels on the school’s roof. He found that the reduced sunlight caused by the proposed development would diminish the effectiveness of the panels, resulting in financial losses for the school. He said that in the four-storey development scenario, solar power output would drop by 75% during the mid-winter period.

28Mr. Chan opined the proposed Zoning By-law Amendment is not consistent with the PPS. He said PPS policy 1.6.11.1 addresses the need for planning authorities to provide opportunities for the development of energy supply, including renewable energy systems and alternative energy systems, to accommodate current and projected needs. He said PPS policy 1.7.1(j) encourages economic prosperity through increased energy supply and PPS policy 1.8.1(f) encourages municipalities to support energy conservation and efficiency. He said the proposed Zoning By-law Amendment would facilitate development that would have impacts on the effectiveness of the school’s solar panels and would not be consistent with the PPS.

29Mr. Chan opined that the proposed Zoning By-law Amendment does not conform with the Growth Plan. He stated that Growth Plan policy 2.2.1.4(f) and (g) addresses the need to combat climate change through the use of green energy. He said the removal of the school’s solar panels would be contrary to this policy. He said Growth Plan policy 3.2.8 on public service facilities sets out provisions on community hubs. By causing the schoolyard to be dark and cold, he said the proposed development would diminish its usefulness as a community hub.

30Mr. Chan said the proposed Zoning By-law Amendment also does not conform with the City’s Official Plan. He said the proposed development would have a cooling effect on the school and diminish the effectiveness of its solar system. In this regard, he said the proposed Zoning By-law Amendment would facilitate development that is contrary to the City’s Official Plan policy 2.2.2(e) and (f), which requires the minimization of energy consumption and promotion of opportunities for the use and generation of renewable energy. He said the proposed Zoning By-law Amendment also would be contrary to policy 3.18, which addresses energy sustainability and promotes the use of renewable energy and energy conservation, policy 4.7.2, which encourages the use of renewable energy, and policy 11.1.6, which encourages compact development and the use of active transportation and transit to reduce greenhouse gas emissions.

31Mr. Chan opined that the proposed development would not be compatible with the existing neighbourhood. He said policy 11.1.7.4.4(a) of the City’s Downtown Secondary Plan requires that the scale of development must be compatible with the surrounding area. He said the scale of the proposed development in relation to the school in terms of height and change in grade are not compatible. He opined that the two- to four-storey height restrictions in Schedule D on Minimum and Maximum Building Heights of the City’s Downtown Secondary Plan contemplate the application of a two-storey limit where there is unique site geography. He said this is to ensure proper built form relationships where there are significant changes in grade. He said it provides flexibility regarding scale to recognize the built form, character, and massing of surrounding development.

32Mr. Chan said the proposed Zoning By-law Amendment does not provide for transition of building height to the school in terms of proper setbacks and stepbacks. He said there is no rationale for the reduced setbacks from the school in the proposed Zoning By-law Amendment. He said no stepbacks are required in the proposed Zoning By-law Amendment for the side of the proposed development facing the school. He described the built form standards in the City’s Downtown Secondary Plan, including those regarding site design, setbacks, height, and transition. He said the setbacks need to respond to the surrounding built form and topography. He said the side yard setback requirement in the existing Institutional zoning for the subject property is 6 m or one half the building height, whichever is greater. He said the proposed Zoning By-law Amendment would reduce this to 3 m, which is insufficient. He said policy 8.11 applies, which states that transition is required to achieve compatibility and that where the height of new buildings exceeds that of existing surrounding ones, the City may require setbacks or stepbacks. He also referred to policy 8.7.1(i), which refers to the use of stepbacks and setbacks to ensure compatibility where commercial, employment or mixed-use development is located in proximity to residential and institutional uses. He opined that restricting the height or increasing the stepbacks for the proposed development would not constitute down-zoning because such restrictions would address specific impacts on the school and its yard. He said down-zoning involves requiring a less intensive use, which would not be the case in the present circumstances.

33Mr. Chan stated that OPA No. 80 as approved by City Council maintains the height ranges, transition requirements and built form policies set out in the City’s Official Plan.

34Mr. Chan stated that privacy issues would arise if there were residential units overlooking the school playground. He opined that increased setbacks are needed to address these privacy and overlook issues.

35In terms of modifications to the proposed Zoning By-law Amendment, Mr. Chan recommended, among other things:

• a maximum of two storeys, at 3.2 m per storey, or the inclusion of 3 m stepbacks from the third storey up;

• same built form as that on Cork Street West;

• minimum 4.5 m side yard setbacks, or 3 m side yard setbacks with stepbacks; and

• no terracing facing the school, but if there is, the terraces must have opaque privacy screening.

Evidence and Submissions of the City

36Ms. Nasswetter opined that the proposed Zoning By-law Amendment conforms with the City’s Official Plan. She stated that the proposed development would be compatible with the surrounding low-rise residential neighbourhood and the proposed uses are permitted. She stated that the proposed Zoning By-law Amendment includes the same maximum height (361 m above sea level) and setbacks (3 m) as the adjacent lands under Downtown 2 (D-2) zoning. She stated that there is nothing in the Downtown Secondary Plan that requires buildings to be less than four storeys tall. She said a two-storey limit would be less than the current zoning and less than the height permissions for other areas in the City’s downtown. She said the two- to four-storey height provision in the Downtown Secondary Plan cannot be interpreted to require that some sites can be no more than two storeys tall. She said policy 11.1.8.1.4 on built form in the Downtown Secondary Plan responds sensibly to compatibility.

37Ms. Nasswetter stated that the proposed zoning would require setbacks and stepbacks from Cork Street West and Dublin Street North, which would essentially provide for a 45-degree angular plane. She said this would ensure an appropriate relationship of built form to the street. She said there would be two stepbacks to the rear of the proposed development to limit overlook on to the school and reduce visual impacts from the schoolyard.

38Regarding shadow issues, Ms. Nasswetter stated that both Rykur and City staff completed shadow studies to the satisfaction of the City. She said these studies were for a five-storey development with a 6 m setback from the school. She said the City’s study looked at the shadow impacts of as-of-right development and compared them to the expected impacts of Rykur’s proposal. She acknowledged that there would be fewer shadow impacts with a two-storey building or a four-storey building with greater stepbacks; but she stated that these are only some of several planning factors that must be considered. She said that the existing stepbacks allow for transition from Cork Street West. She opined that requiring additional stepbacks would result in an insufficient building envelope.

39Regarding the matters of provincial interest set out in s. 2 of the Planning Act, Ms. Nasswetter said they include the need to increase the supply and conservation of energy and to reduce greenhouse gas emissions, but she opined that this does not prohibit development of adjacent solar panel installations.

40Ms. Nasswetter said the proposed Zoning By-law Amendment has regard to PPS policy 1.6.11.1 on energy supply and policy 1.7.1(j) on promoting energy conservation and supply. She said the proposed development could have solar panels itself and that shadowing neighbouring solar panels is not inconsistent with the PPS. She said no protection for existing solar panel effectiveness is warranted.

41Ms. Nasswetter acknowledged that Growth Plan policy 4.2.9(b) addresses energy efficiency, but she stated that impacts on the school’s solar energy generation capabilities would only be significant on the coolest and darkest days. She said solar panels on a neighbouring building cannot restrict permitted development of adjacent lands based on these policies.

42Ms. Nasswetter opined that a height range of two to four storeys along with the other policies in the proposed Zoning By-law Amendment are appropriate and conform with OPA No. 80 as approved by City Council.

Participants’ Submissions

43Sandy Clipsham, Karen Hunter, Roger Johnson, Catherine Killen, Lillian and Peter Links, Sandra Parmegiani, Christine Peters, Mary Peirson, and Susan Watson were previously granted Participant status in this proceeding. They raised concerns regarding the need for more greenspace and parklands in the area, impacts of the proposed development on the school, impacts on the local cultural heritage landscape, compatibility issues, impacts on traffic and parking, and pedestrian and student safety issues.

Analysis and Findings on Compatibility and Transition Issues

44Policy 8.11 of the City’s Official Plan emphasizes the need for compatible uses and appropriate transition through spatial separation of lands uses and compatible built form. Policy 8.11 states (emphasis added):

1. To achieve compatibility between different land uses, development will be designed to create an appropriate transition through the provisions of roads, landscaping, spatial separation of land uses and compatible built form.

2. Where proposed buildings exceed the built height of adjacent buildings, the City may require the new buildings to be stepped back, terraced or set back to reduce adverse impacts on adjacent properties and/or the streetscape.

45Policy 11.1.7.4.4(a) of the Downtown Secondary Plan states that development must be compatible with the character of the surrounding area. It states (emphasis added):

11.1.7.4.4 To maintain the general character of Mixed Use 2 areas, development shall adhere to the following:

a) Development shall be compatible with the character of the surrounding area and respect the character of neighbouring buildings in terms of their scale, materials, articulation, landscaping and relationship to the street.

b) Building setbacks along the street shall be generally consistent with those of neighbouring buildings within the Mixed Use 2 area.

c) Parking and servicing areas shall generally be located at the rear or side of buildings. Parking shall generally not be permitted between the front of a building and the street.

46“Compatibility” is defined in the glossary section of the City’s Official Plan. It speaks of coexistence without unacceptable adverse impacts. “Compatibility” is defined in policy 12 in the following manner (emphasis added):

Development or redevelopment which may not necessarily be the same as, or similar to, the existing development, but can co-exist with the surrounding area without unacceptable adverse impact.

47Referring to policy 11.1.7.4.4(a), Mr. Chan stated that the scale of the proposed development is not compatible with the scale of the school particularly in regard to height and change in grade to the school yard. He said the type and form of development permitted under the proposed Zoning By-law Amendment would not advance compatibility or mitigate shadow impacts. Referring to policy 8.7.1(i), he said stepbacks and setbacks are needed to ensure compatibility. Based on the opinion evidence of Mr. Morgan regarding shadowing and Ms. Ewing regarding childhood education and development, the Tribunal finds that due to the height and grade of the proposed development, the shadowing from it would impact the light and temperature both on the schoolyard and inside the school and have unacceptable adverse impacts on children’s learning and social behaviour. The City stated that its staff and Rykur undertook shadow studies to the City’s satisfaction, but it did not provide compelling evidence that these studies addressed the adverse shadow and cooling impacts on the school and its students identified by Mr. Morgan and Ms. Ewing. Nor did it provide opinion evidence contesting the expert testimony of these witnesses. The Tribunal also notes that the City’s Sun and Shadow Terms of Reference (May 2019) state that adequate sunlight should be ensured on places where children play, including school yards and play areas, and provide guidance on meeting this criterion. The uncontested evidence before the Tribunal is that this criterion was not applied in the present case and the shadow impacts of the proposed development on the school yard and play areas would not comply. The shadows created by the proposed development would also impact the amount of energy generated by the renewable energy solar panels that the School Board has installed on its roof. There is no specific policy that prohibits shadowing on solar panels, but these are impacts that the Tribunal must consider when addressing compatibility.

48The Tribunal finds that the proposed Zoning By-law Amendment would permit a built form that cannot co-exist with the surrounding area without causing the above-noted unacceptable adverse impacts. The height and massing of the proposed development, without sufficient setbacks and stepbacks from the school, would cause unacceptable adverse shadowing and cooling impacts on the school and, based on the definition of compatible in the City’s Official Plan, is not compatible with the character or use of the surrounding area and buildings due to its scale. As a result, the Tribunal finds that the proposed Zoning By-law Amendment does not conform with policies 8.7.1(i), 8.11, and 11.1.7.4.4 of the Downtown Secondary Plan.

49Policy 3.7.3(vi) and (ix) on intensification requires transition to built form of adjacent areas. It states (emphasis added):

3.7.3. Within the built-up area the following general intensification policies shall apply:

(vi) intensification of areas will be encouraged to generally achieve higher densities than the surrounding areas while achieving transition of built form to adjacent areas;

(ix) the City will identify the appropriate type and scale of development within intensification areas and facilitate infill development where appropriate.

50The Tribunal finds that in the present case, based on policy 3.7.3(vi), a structure in a predominantly low-rise residential area, with an appearance that is several storeys taller than the adjacent school, and with a 3 m setback and no stepbacks required on that side, does not provide transition in built form to the adjacent area and is not appropriate.

51The Tribunal agrees with Mr. Chan and Ms. Ewing regarding overlook and privacy issues. However, the proposed Zoning By-law Amendment already states that terraces and balconies shall not be permitted on the north side of the proposed development facing the school and that terraces and balconies on other sides of the proposed development must have translucent or opaque privacy screening to screen views towards the school. The Tribunal finds that these existing provisions in the proposed Zoning By-law Amendment are reasonable.

52Among the modifications to the Zoning By-law Amendment proposed by Mr. Chan, he recommended a four-storey height limit with third and fourth storey stepbacks of 3 m. Mr. Morgan opined that increased setbacks from the school and the inclusion of stepbacks on that side of the proposed development would make a substantial difference in mitigating shadow and temperature impacts. Based on Mr. Morgan’s evidence, the Tribunal finds that both increased setbacks and stepbacks are necessary. The Tribunal finds that the compatibility and transition issues noted above would be substantially addressed with the inclusion of the following requirements in the proposed Zoning By-law Amendment:

• the inclusion of 3 m stepbacks for each floor from the third storey up facing the school; and

• a minimum 4.5 m side yard setback adjacent to the school.

Based on the evidence before it from Mr. Chan, Ms. Ewing, and Mr. Morgan, the Tribunal finds that, with these requirements in the proposed Zoning By-law Amendment, the above-noted impacts of development on the subject property would be substantially mitigated and there would be improved transition. In these regards, the Tribunal finds that, with the inclusion of the above-noted requirements, the proposed Zoning By-law Amendment would be consistent with the PPS and would conform with the Growth Plan, the City’s Official Plan, and OPA No. 80.

2. Cultural Heritage Issues

Evidence and Submissions of the School Board

53Mr. Borgal emphasized the cultural heritage importance of Catholic Hill. He opined that the view of the Basilica from the City’s downtown is one of the most significant cultural heritage landscape views in the Province and defines the character of the City’s downtown. He said a three- to four-storey building on the subject property would impose on this feature. He stated that given the high ground elevation of the property, development there would look taller than it actually is and would cause visual noise. Mr. Borgal opined that the proposed development should not be more than two storeys from the grade on Dublin Street North to ensure that it does not interfere with views of Catholic Hill. He said three or four storeys may be appropriate as the grade goes down the hill, but the maximum geodetic height of the proposed development should be no more than 351 m above sea level.

54Mr. Borgal opined that the proposed Zoning By-law Amendment is not consistent with the cultural heritage policies in the PPS. He said PPS policy 1.7.1(e) states that long-term economic prosperity should be supported by encouraging a sense of place by promoting well-designed built form and cultural planning and by conserving features that help define character, including built heritage resources and cultural heritage landscapes. He opined that the impacts of the proposed development on views of Catholic Hill would not be consistent with this policy.

55Mr. Borgal stated that policy 4.8 of the City’s Official Plan states that cultural heritage resources are the roots of the community. He said there is a need to maintain and celebrate the heritage character of Catholic Hill, including St. Agnes School, which is directly across the Cork Street West from the subject property. He said policy 4.8(d) sets out the objective of ensuring that all new development is contextually appropriate and maintains the integrity of cultural heritage resources and adjacent protected heritage property.

56Mr. Borgal opined that the proposed Zoning By-law Amendment does not conform with the intent of the urban design heritage policies in the City’s Official Plan. He said policy 2.2.2(c) requires that the visual identity of the City is to be protected through protection of cultural heritage resources and policy 11.1.5 addresses the attractiveness and livability of the public realm. He acknowledged that the subject property lies outside of the protected view planes to Catholic Hill set out in the City’s Downtown Secondary Plan, but he stated that given the location of the subject property near the top of the hill, visual elements must be considered.

57Mr. Chan stated that policy 11.1.2.2.1(f) of the City’s Downtown Secondary Plan states that new development should be compatible with buildings and neighbourhoods that have heritage value. He said policy 11.1.2.2.8(a) aims to ensure that new buildings respect and complement the architecture and materials of surrounding historically significant buildings through policies, standards, guidelines, and other means. He said policy 11.1.8.1.4 of the Downtown Secondary Plan states that mid-rise and taller buildings should respond sensitively to the unique and historic fabric of the City’s downtown and the surrounding neighbourhoods to ensure compatibility.

Evidence and Submissions of the City

58Ms. Nasswetter agreed that Catholic Hill is potentially a significant cultural heritage landscape. She said several of its features of cultural heritage value are listed by the City as non-designated built heritage resources on its Municipal Register of Cultural Heritage Properties, including St. Agnes School. She acknowledged that the Basilica is recognized federally as a National Historic Site under the Historic Sites and Monuments Act, but she stated that there is no requirement for the City to obtain federal approval for development on adjacent lands. She acknowledged that Heritage Guelph, which is a committee appointed by City Council to provide advice on cultural heritage matters, did not support Rykur’s original five-storey residential development proposal in 2016, but she stated that Rykur submitted a heritage impact assessment for its original five-storey development proposal, which was completed to the satisfaction of the City’s heritage planner. She said the assessment included consideration of impacts to St. Agnes School.

59Ms. Nasswetter opined that the proposed Zoning By-law Amendment is consistent with PPS policy 2.6.3. She said the subject property is not adjacent to a protected heritage property as defined in the City’s Official Plan and none of the buildings on Catholic Hill are provincially designated or protected. She also stated that the proposed Zoning By-law Amendment requires a maximum geodetic height of 361 m above sea level and no portion of the proposed development, including any rooftop mechanical equipment, elevator, or stairway penthouse, is permitted beyond that height.

Analysis and Findings on Cultural Heritage Issues

60The City’s Downtown Secondary Plan policy 11.1.2.2.1(f) states that new development should be compatible with buildings and neighbourhoods that have heritage value. It states (emphasis added):

Principle 1. Celebrate What We’ve Got

Downtown Guelph has many assets, not the least of which is its rich inventory of historic buildings, many constructed of limestone. These buildings, and the streets and open spaces they frame, give Downtown a unique and attractive character. Downtown also overlaps with historic neighbourhoods whose qualities should be protected.

Objectives

As Downtown grows and evolves, it will be important to:

a) Conserve significant heritage structures;

b) Encourage the sensitive restoration, rehabilitation and/or re-use of historically or architecturally significant buildings;

c) Maintain the character of distinct heritage areas within Downtown;

d) Interpret the cultural heritage of Downtown in the design of buildings and public spaces;

e) Strategically locate and articulate tall buildings to minimize impacts on historic areas and preserve important public views;

f) Ensure new development is compatible with buildings and neighbourhoods that have heritage value;

g) Improve historic public open spaces and streets, including St. George’s Square and MacDonell Street and create new spaces for gathering and recreation.

61The Mixed Use Area 2, which surrounds the subject property, is comprised predominantly of low-rise residential buildings. There is a strong historical character in the area. Policy 11.1.7.4.1 of the Downtown Secondary Plan emphasizes that this predominant character is to be maintained. It states (emphasis added):

11.1.7.4.1 Mixed Use 2 areas, as identified on Schedule C, are those areas of downtown that were historically mostly residential with a mixture of housing styles but have evolved to accommodate a range of uses, many in partially or fully converted houses. Therefore the predominant character of this area is of low-rise buildings that are residential in character, with landscaped front yards, and small-scale, visually unobtrusive commercial signage. In addition, many of the existing buildings and properties in these areas are of Cultural Heritage Value or interest and contribute to Downtown’s unique identity. As land uses evolve, the predominant character of Mixed Use 2 areas should be maintained.

62Policy 11.1.2.2.8(a) aims to ensure that new buildings respect and complement the architecture and materials of surrounding historically significant buildings through policies, standards, guidelines and other means. It states (emphasis added):

Principle 8. Build Beautifully

The legacy of urban planning and architecture in Downtown includes many stellar examples of design excellence. To build upon the legacy without diminishing it and in the process enhance the quality of life in Downtown, requires an ongoing commitment to design excellence on the part of the City, property owners and developers.

Objectives

As Downtown continues to develop, it will be important to:

a) Ensure new buildings respect and complement the architecture and materials of surrounding historically significant buildings through policies, standards, guidelines and other means;

b) Ensure Downtown’s streets, parks, squares and other public spaces are designed and maintained to the highest standards as attractive and high quality urban environments through policies, standards, guidelines and other means;

c) Integrate public art into the design of buildings, streetscapes and open spaces;

d) Promote the development of inspiring, meaningful and memorable places that reinforce Guelph as a historic, beautiful and innovative city.

63Policy 11.1.8.1.4 of the City’s Downtown Secondary Plan states that its policies respond to the historic fabric of the area and are intended to ensure compatibility. It states (emphasis added):

11.1.8.1.4 The built form policies of the Downtown Secondary Plan, and in particular those that apply to mid-rise and taller buildings, respond sensitively to the unique and historic fabric of Downtown Guelph and the surrounding neighbourhoods. Their primary intent is to ensure compatibility among buildings of different types and forms, the minimization and mitigation of adverse shadow and view impacts, and the creation and maintenance of an inviting and comfortable public realm. Nevertheless, the City recognizes the need to be somewhat flexible and allow for well-designed buildings that respond appropriately to the conditions of their site and its surroundings and are consistent with the principles of this Plan. Where “generally” is used to qualify a built form policy found in Section 11.1.7 of this Plan, it is the intent that the policy requirement shall be met except where an applicant has demonstrated to the City’s satisfaction that site-specific conditions warrant considerations of alternatives, and that the proposed alternative built form parameters meet the general intent of the policy. Such exceptions shall not require an amendment to this Secondary Plan.

64PPS policy 1.7.1(e) states that long-term economic prosperity should be supported by encouraging a sense of place, by promoting well-designed built form and cultural planning, and by conserving features that help define character, including built heritage resources and cultural heritage landscapes. PPS policy 2.6.1 reiterates that significant built heritage resources and significant cultural heritage landscapes shall be conserved and PPS policy 2.6.3 states that development shall not be permitted on adjacent lands unless it has been demonstrated that the heritage attributes of the protected heritage property will be conserved. Similar cultural heritage conservation objectives are found in policies 1.2.1 and 4.2.7 of the Growth Plan.

65This consistent aim to ensure compatibility with the historic character of the area is repeated in the land use and built form objectives set out in policy 11.1.7 of the Downtown Secondary Plan. This includes objective (g), which states that the intent of the built form policies is to, among other things, ensure that “new development respects the character of downtown’s historic fabric and the quality of life in surrounding neighbourhoods.”

66In regard to permitted heights, policy 11.1.7.2.1 of the Downtown Secondary Plan states that maximum heights are intended to recognize the status of the Basilica as a landmark. It states (emphasis added):

11.1.7.2.1 Schedule D identifies building height ranges to be permitted within the Downtown Secondary Plan Area. In general, the predominant mid-rise built form of Downtown shall be maintained with taller buildings restricted to strategic locations, including gateways that act as anchors for key streets. Taller buildings in these locations will have minimal direct impacts to existing neighbourhoods and the historic core of Downtown, and they will be outside protected public view corridors. In the height ranges contained on Schedule D, the lower number represents the minimum height in storeys for buildings and the higher number represents the maximum permitted height in storeys. The maximum heights recognize the Church of Our Lady’s status as a landmark and signature building; it is the general intent that no building Downtown should be taller than the elevation of the Church. Exemptions from minimum height requirements may be permitted for utility and other buildings accessory to the main use on a site.

67Policy 11.1.7.2.2 then states that maximum heights may be lower to maintain the protected views of the Basilica. It states (emphasis added):

11.1.7.2.2 Notwithstanding Schedule D, the Zoning By-law may establish maximum building heights lower than those shown in order to maintain the protected long views to the Church of Our Lady, as generally identified in Schedule D. The Zoning By-law shall more precisely define the protected views and shall be amended, where appropriate, to reflect the location and scope of the views identified in Schedule D.

68These policies emphasize the importance of the Basilica as a centrepiece of the City’s downtown and the need to protect views of it. They also demonstrate that the maximum height permissions in the Official Plan may be reduced where they threaten the views of the Basilica. The subject property does not lie with a protected view corridor of the Basilica; however, given its location adjacent to it, development on the subject property can be incompatible with views of the Basilica, if it distracts the viewer.

69As noted above, “compatibility”, as defined in the policy 12 glossary section of the City’s Official Plan, speaks of coexistence without unacceptable adverse impacts. In the present case, Mr. Borgal stated that there would be visual impacts due to the difference in built form between the historic buildings on Catholic Hill and the proposed four-storey development. However, Mr. Borgal did not demonstrate precisely what those impacts would be. At paragraph 14 of his witness statement, dated December 15, 2022, Mr. Borgal stated:

Due to the height and prominence of this hill overlooking the downtown, the character of this part of Guelph was historically occupied by taller, well designed, stone institutional buildings including the Basilica, the adjacent former St. Agnes School, the Rectory and Convent and, early on, the imposing school building across the street to the northeast. This created a prominent and symbolic positioning for these buildings that were important to an overall understanding of the culture of the community. From an urban design standpoint, and particularly from an historical urban design perspective, this assemblage of buildings is relatively rare in Canada and should be respected for what it is – a considered and deliberate policy to develop public and institutional structures within a very imposing landscape, reinforced by the axial alignment of the streets below the hill. While it is certain that the low-rise modernist school broke this tradition, key elements of the institutional buildings remain. Insertion of a larger mass of residential occupancy within the immediate area breaks this historical tradition and will prevent the long-term potential of this cluster of important civic buildings to be seen as a unified public buildings group in silhouette against the sky when viewed from the core of the downtown or adjacent streets.

70These are important points; however, no evidence was presented demonstrating that an appropriately designed four-storey building on the subject property would unacceptably adversely impact views of the Basilica or other historic buildings or be incompatible with them. The subject property cannot be seen from the City’s main downtown core area and Mr. Borgal acknowledged that the proposed development would be outside of the protected view planes to Catholic Hill set out in the City’s Downtown Secondary Plan. Given the location of the subject property near the top of the hill, visual elements must be considered, but based on the visual evidence presented, including the School Board’s Addendum Photobook, dated April 7, 2023, the Tribunal finds that an appropriately designed four-storey building on the subject property with a maximum height no higher than the St Agnes School would not adversely impact the main views of the Basilica and would be compatible with the character of the surrounding area. Ms. Nasswetter stated that the maximum height permitted under the proposed Zoning By-law Amendment is no taller than the height of the adjacent historic St. Agnes School. Such a height would be in the range of two to four storeys in conformity with Schedule D to the City’s Downtown Secondary Plan and would not distract viewers of the historic buildings on Catholic Hill. The proposed development is not the same as existing development in the area, but the Tribunal finds that, provided that it is no taller than the St Agnes School (including any rooftop mechanical equipment, elevator, or stairway penthouse), it would not cause unacceptable adverse impacts from a cultural heritage perspective, and it would be compatible with the surrounding area.

71Certainly, with any development on the subject property, views of the Basilica from certain angles would be obstructed, but none of these views, for instance from the intersection of Cork Street and Norfolk Street, are from main public areas or would have unacceptable adverse impacts. The definition of “compatible” in policy 12 of the City’s Official Plan refers to development that may not necessarily be the same as, or similar to, the existing development, but can co-exist with the surrounding area without unacceptable adverse impact. Mr. Borgal opined that Rykur has not appropriately addressed the massing that would be created by the proposed development at the crest of Catholic Hill, but he did not provide compelling evidence that such massing would have adverse impacts or threaten the protection of the heritage resources on Catholic Hill.

72The Tribunal notes that PPS policy 2.6.3 requires that where a proposed development is adjacent to a protected heritage property, it must be demonstrated that the heritage attributes of the protected heritage property will be conserved. In the present case, Rykur prepared a heritage impact report regarding a larger proposed five-storey development on the subject property. Based on this report, the City is satisfied that the heritage attributes of the protected heritage property would be conserved. The Tribunal finds that the School Board did not provide compelling evidence that development on the subject property with a maximum total geodetic height of 361 m above sea level (including any rooftop mechanical equipment, elevator, or stairway penthouse) and setbacks and stepbacks would threaten the conservation of the heritage attributes of the historic buildings on Catholic Hill. There was no compelling evidence presented demonstrating that the proposed Zoning By-law Amendment would facilitate development that would diminish the conservation or protection of the historic buildings on Catholic Hill.

73In November 2016, Heritage Guelph provided inputs to City Council on Rykur’s initial development proposal for a five-storey residential building. It did not support City staff’s finding that there would be no negative impacts on the nearby cultural heritage landscape. It stated that there was incomplete information regarding secondary view sheds, including night-time and winter views, and incomplete studies on shadowing. As a result, Heritage Guelph found that it could not be determined whether the proposed development would have a negative impact on cultural heritage. At the hearing, the Tribunal received evidence on the protected view corridors of Catholic Hill, photographic evidence demonstrating potential visual impacts, and shadowing evidence, which provided more fulsome information than what was available to Heritage Guelph in 2016. None of it demonstrated adverse impacts on the historic buildings on Catholic Hill. Based on this evidence, and the fact that lighting should be addressed at the site plan approval stage, the Tribunal finds that development on the subject property with a maximum total geodetic height of 361 m above sea level (including any rooftop mechanical equipment, elevator, or stairway penthouse) and setbacks and stepbacks, would not have unacceptable adverse impacts on the cultural heritage attributes of Catholic Hill.

74The Tribunal finds that, with the requirement of a maximum total building height of 361 m above sea level, along with the setbacks and stepbacks set out above, the proposed Zoning By-law Amendment is consistent with the PPS and conforms with the Growth Plan, the City’s Official Plan, and OPA No. 80 in regard to cultural heritage issues.

3. Transportation and Traffic Safety Issues

Evidence and Submissions of the School Board

75Ms. Ewing stated that there is insufficient parking at the school and that parents are forced to use a small “kiss and ride” lay-by area on Dublin Street North for student drop-offs. She said this area is very close to the subject property and there are already safety issues as drivers frequently make U-turns and double park. She said children cross the intersection of Dublin Street North and Cork Street West on their way to and from school and increased traffic would generate increased safety issues. She said the possibility of a driveway and loading area for the proposed development being located close to the drop-off area would add to these safety concerns.

76Mr. Northcote provided opinion evidence on transportation and traffic safety issues on behalf of the School Board. He stated that access to the proposed development would result in traffic safety issues and would impede the student drop-off area. He stated that the proposed development lacks a loading area, which would result in loading occurring on the street causing further traffic and pedestrian safety problems. He stated that without a development plan, an assessment of transportation, parking, and loading impacts on the school cannot be completed. He said the number of residential units and non-residential floor area must be finalized before impacts of traffic, parking demand, and loading can be determined.

77Mr. Northcote said the proposed zoning allows for a range of development types, which could result in traffic and parking issues and conflicts with the school. He said access to the proposed development should be from Cork Street West (not Dublin Street North on which the school is located), the number of dwelling units should be restricted to ten, and the permitted uses should be limited to residential, which can be more easily controlled than other uses.

78Mr. Northcote said that, without a site plan showing access, loading facilities, and type and number of units, it is impossible to determine whether the proposed development represents orderly and safe development from a transportation perspective in accordance with s. 2 of the Planning Act, or whether it addresses public health and safety concerns and ensures that necessary infrastructure and public service facilities are available in line with the PPS. He said there could be a significant variation in the magnitude and distribution of peak traffic periods, parking demand, and loading facility requirements for each type of permissible development. He also said there is uncertainty regarding how, when, and where waste would be picked up and how this would impact traffic and pedestrian safety at the school. He reiterated the need to ensure that adequate loading is provided for each potential development scenario. He said that if on-site loading space is not included, the proposed development should be restricted to residential with no more than ten units to facilitate safe curbside waste collection without causing sightline and other transportation problems.

79Mr. Chan stated that Growth Plan policy 2.2.1.4(d) encourages the use of a range of transportation options. He reiterated that without a development plan, it is impossible to assess what these options would be. He agreed that depending on the number of proposed residential and non-residential units, parking, traffic, and loading requirements could vary.

80Mr. Chan stated that proposed Zoning By-law Amendment does not conform with the City’s Official Plan’s policies on parking and loading. He said that without a development plan, it is impossible to assess the options or conformity with policy 11.1.7.2.4. He stressed the need to ensure that access to the proposed development does not cause traffic or pedestrian safety issues associated with the school’s pick up and drop-off area. He said loading requirements are needed due to the significant grades on Cork Street West, the adjacent school pick up and drop-off areas, and the significant pedestrian activity near the school.

81Mr. Chan said Downtown Secondary Plan’s policy 11.1.2.2, principle 6(a) states that streets must be designed to “safely and comfortably accommodate pedestrians, cyclists, transit vehicles, loading and private vehicles”, principle 6(c) encourages pedestrian use, and principle 6(g) encourages the minimization of traffic impacts.

82In terms of modifications to the proposed Zoning By-law Amendment, Mr. Chan recommended:

• on-site loading facilities, if more than ten residential units are included;

• the entrance to the proposed development to be off Cork Street West, with no access off Dublin Street North; and

• no driveways off Dublin Street North.

Evidence and Submissions of the City

83Ms. Nasswetter stated that the site plan control stage allows for a more detailed review of transportation issues based on the specifications of the final design plans for a proposed development than can be done at the zoning approval stage. She stated that in the present case, where there are no detailed design plans, it is better to address transportation issues through site plan control. She said student drop-off techniques, other than “kiss and ride”, could be considered for the school. She acknowledged that a typical driveway would be 6 to 7 m wide and that it would be preferable to have loading, garbage, and access to the proposed development from Cork Street West rather than from Dublin Street North; however, she said these do not need to be stipulated in the proposed Zoning By-law Amendment. She said there is no reason to assume an on-site loading space is needed and she stated that this is not a standard zoning regulation in the D-2 Zone. She said these issues do not need to be addressed until the proposed uses of the subject property are finalized. She opined that it may be possible to share the use of the school drop-off area with restrictions. For example, there could be a restriction on loading during peak school drop-off and pick up times. She also opined that there is no need to restrict pedestrian entrances on the Dublin Street North.

Analysis and Findings on Transportation and Traffic Safety Issues

84The transportation objectives found in policy 11.1.2.2 of the City’s Downtown Secondary Plan emphasize the need for the design of streets that safely and comfortably accommodate pedestrians, loading, and vehicles. Objectives 6(a), (c), and (g) state (emphasis added):

Principle 6. Make it Easy to Move Around

In successful downtowns, there are many ways to arrive and move around. Streets serve multiple functions. Public transit plays a critical role in supporting high density employment and residential uses. Although multiple modes will be facilitated, movement within Downtown will focus on walking to ensure the creation of an attractive, high-quality urban environment.

Objectives

To create a transportation system that works for all urban modes of travel, it will be important to:

a) Design streets to safely and comfortably accommodate pedestrians, cyclists, transit vehicles, loading and private vehicles, using standards appropriate to Downtown’s planned urban context;

c) Create an environment that encourages walking everywhere Downtown;

g) Minimize and mitigate traffic impacts on existing residential neighbourhoods within and surrounding Downtown.

85This policy focuses primarily on the design of streets; however, the impact of development on the transportation system is relevant as well. This includes impacts on pedestrians and traffic caused by access and loading at the proposed development. Based on the opinion evidence of Mr. Northcote, the Tribunal finds that the proposed Zoning By-law Amendment would facilitate development resulting in traffic and pedestrian safety issues associated with the school’s student drop-off area on Dublin Street North. The City did not present opinion evidence in the area of transportation and traffic safety issues to contradict his opinion. Based on the evidence before it, the Tribunal finds that the addition of vehicles accessing the building off Dublin Street North, or loading adjacent to the school’s student drop-off area, would not conform with the objectives in policy 11.1.2.2 of the City’s Downtown Secondary Plan and would not constitute good planning. It would cause pedestrian and traffic safety issues, which should be avoided. The proposed Zoning By-law Amendment does not include policies requiring a separation distance from the student drop-off area to loading and access areas of the proposed development. The Tribunal finds that this is not in conformity with the Downtown Secondary Plan’s objectives set out in policy 11.1.2.2.

86Based on Mr. Chan’s recommended modifications to the proposed Zoning By-law Amendment, the Tribunal finds that the transportation and traffic safety impacts noted above would be mitigated with the following modifications to the proposed Zoning By-law Amendment:

• the entrance to the proposed development to be off Cork Street West with no access off Dublin Street North; and

• no driveways or loading areas off Dublin Street North.

87The Tribunal finds that these modifications would focus access and loading at the proposed development away from the school, and as suggested by Mr. Chan, would mitigate the pedestrian and traffic safety issues raised by the School Board and the Participants. The Tribunal finds that, with these suggested modifications, the proposed Zoning By-law Amendment’s transportation and traffic safety provisions are consistent with the PPS, and conform with the Growth Plan, the City’s Official Plan, and OPA No. 80.

SUMMARY AND CONCLUSIONS

88In relation to other planning aspects relating to consistency with the PPS and conformity with the Growth Plan, the City’s Official Plan, and OPA No. 80, Ms. Nasswetter stated that the subject property is located close to public transit and the City’s downtown and is an appropriate place for development. She said the proposed Zoning By-law Amendment would promote efficient development, avoid environmental issues, provide compact form, and provide for the efficient use of land, infrastructure, transit, and public services. She stated that the City’s downtown, including the subject property, is designated as an urban growth area, which is intended to be a focal area for development and intensification. She said the proposed Zoning By-law Amendment would facilitate compact and efficient development, would assist in achieving a complete community, and would be in keeping with the Mixed Use 2 designation under the City’s Official Plan. She also stated the proposed revised visitor parking requirement, as agreed to in the proposed settlement between the City and Rykur, represents the standard parking requirement in the Downtown – 2 (D.2) Zone and is appropriate. The School Board did not contest Ms. Nasswetter’s opinion in these regards. Based on Ms. Nasswetter’s evidence, the Tribunal finds in these respects that the proposed Zoning By-law Amendment, and the agreed modifications to it regarding parking, are consistent with the PPS and conform with the Growth Plan, the City’s Official Plan, and OPA No. 80.

89With respect to conformity with the City’s Official Plan and the Downtown Secondary Plan policies on public parking facilities, the School Board and the City agreed that a public parking facility on the subject property is not a permitted use under the Mixed Use 2 designation in the Downtown Secondary Plan, and that public parking should not be permitted there. The Tribunal agrees.

90The Tribunal finds that, with the modifications set out in this Decision, the proposed Zoning By-law Amendment is consistent with the PPS, conforms with the Growth Plan and conforms with the City’s Official Plan and Downtown Secondary Plan. The Tribunal has had regard to the matters of provincial interest set out in s. 2 of the Planning Act and to the City’s decision in passing the proposed Zoning By-law Amendment as well as the materials that the City had before it when making its decision.

91In its closing submissions, the School Board requested that, should the appeal be allowed in part, the Tribunal withhold its final Order until the Parties have had an opportunity to submit a final version of the proposed Zoning By-law Amendment incorporating modifications directed by the Tribunal. The Tribunal agrees to this request and issues the Interim Order below to this effect.

INTERIM ORDER

92The Tribunal orders that the appeal filed by the Upper Grand District School Board is allowed in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of the pre-requisite matters identified in paragraph [93] below, and that the Zoning By-law Amendment is approved in principle subject to the modifications set out below.

93The Tribunal withholds the issuance of its Final Order contingent upon:

a. the Tribunal having received and approved the Zoning By-law Amendment, submitted in a final form with the following modifications and clarifications:

i. a maximum geodetic height of 361 m above sea level (including any rooftop mechanical equipment, elevator, or stairway penthouse);

ii. the inclusion of 3 m stepbacks from the third storey up adjacent to the Central Public School;

iii. minimum 4.5 m side yard setbacks adjacent to the Central Public School;

iv. entrance to the proposed development to be off Cork Street West, with no access off Dublin Street North;

v. no driveways or loading areas off Dublin Street North; and

vi. a public parking facility on the subject property is not a permitted use.

94This Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

95If the Parties do not submit the final draft of the Zoning By-law Amendment and provide confirmation that all the contingent pre-requisites to the issuance of the Final Order have been satisfied and do not request the issuance of the Final Order by February 15, 2024, then they shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal.

96The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine additional timelines and deadlines for the submission of the final form of the Zoning By-law Amendment, the satisfaction of the contingent pre-requisites, and the issuance of the Final Order.

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE-CHAIR

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.