ISSUE DATE: August 06, 2024
CASE NO(S).: OLT-23-000891
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: 5012526 Ontario Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of two purpose built rental apartment buildings with height of seven (7) and five (5) storeys consisting of 219 units
Reference Number: OP.20.010
Property Address: Part of Lot 7 and 8, Concession 8, designated as Parts 3, 4, 5 and 6, Plan 65R-32167
Municipality/UT: Vaughan/York
OLT Case No.: OLT-23-000891
OLT Lead Case No.: OLT-23-000891
OLT Case Name: 5012526 Ontario Inc. v. Vaughan (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: 5012526 Ontario Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of two purpose built rental apartment buildings with height of seven (7) and five (5) storeys consisting of 219 units
Reference Number: Z.20.031
Property Address: Part of Lot 7 and 8, Concession 8, designated as Parts 3, 4, 5 and 6, Plan 65R-32167
Municipality/UT: Vaughan/York
OLT Case No.: OLT-23-000892
OLT Lead Case No.: OLT-23-000891
Heard: June 5, 2024 by Video Hearing
Parties
Counsel
City of Vaughan
Raj Kehar
Zaynab Al-waadh
5012526 Ontario Inc.
Michael Cook
Eric Flowers
Mark Flowers (in absentia)
D’Aversani Holdings Inc.
Natalie Ast
Chris Tanzola
Canuck Properties Ltd.
Doug Pateman
Ira Kagan (in absentia)
DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1On June 5, 2024, the Tribunal held a Hearing to consider a settlement with regard to Appeals brought by 5012526 Ontario Inc. (“Appellant”) for the failure or neglect of the City of Vaughan (“City”) to make decisions on the Appellant’s applications for Official Plan and Zoning By-law Amendments to facilitate development on the lands located at Part of Lot 7 and 8, Concession 8, designated as Parts 3, 4, 5 and 6 on Plan 65R-32167 (“Subject Property”), in the City of Vaughan, in the Regional Municipality of York (“York Region” or “Region”).
2The Subject Property is located on the north side of Woodbridge Avenue, west of Kipling Avenue. The Appellant is proposing to develop two purpose-built rental apartment buildings, one being five storeys in height and the other being seven storeys with a total of 238 units.
3To the north of the Subject Property are two-storey block townhomes. To the east are commercial, retail, personal services and employment uses. The north-east portion of the site abuts a five-storey residential apartment building. To the south is Woodbridge Avenue with retail/commercial uses in low-scale buildings with surface parking and a high school. To the west are two multi-unit industrial buildings.
4The Subject Property is located approximately 550 metres (“m”) from Highway 7, which has the York Region Transit (“YRT”), VIVA Orange Bus Rapid Transit line. Local bus routes also operate in the vicinity of the Subject Property.
5The Subject Property is located directly adjacent to an area subject to an Interim Control By-law (“ICBL”) approved by the City in May 2023. The purpose of the ICBL is to allow the City to undertake a study to determine the location and design for a potential Woodbridge GO station as part of the proposed Caledon-Vaughan GO rail line. The Subject Property may become part of a Major Transit Station Area (“MTSA”).
6The proposed settlement incorporates the development of the two purpose-built rental apartment buildings including a privately-owned, but publicly accessible multi-use trail along the western property line providing a connection from Woodbridge Avenue to the northerly limit of the Subject Property. The approximately 773 square metres (“m2”) multi-use trail would be designed to City standards, with public accessibility maintained by an easement in favour of the City, which would be registered on title. There will also be a provision to allow the trail to be converted to a north-south laneway connecting to Woodbridge Avenue should the adjacent lands to the west ever be redeveloped.
7On March 26, 2024, City Council endorsed the proposal for the Subject Property.
8On May 14, 2024, Canuck Properties Ltd. (“Canuck”) entered into a Minutes of Settlement with the Appellant. As part of the Settlement, the Appellant has agreed to provide access from the Canuck lands over the proposed driveway connection to Woodbridge Avenue.
9On May 15, 2024, D’Aversani Holdings Inc. (“D’Aversani”) entered into Minutes of Settlement with the Appellant. As part of the Settlement, the Appellant has agreed to:
provide temporary easement rights over a portion of the Subject Property or the purposes of facilitating vehicle maneuvering required for shipping, receiving, and loading operations of the bakery present on the D’Aversani lands;
preclude the installation of windows, doors, balconies, or other structural encroachments along the eastern façade of the proposed buildings where they abut the D’Aversani lands; and,
enter into an agreement to protect the continued operation of the existing bakery on the D’Aversani lands, despite any noise or odour impacts of same on residential uses.
10It should be noted that the restriction on windows in the eastern façade of the building facing the D’Aversani lands is not intended to dictate the materials that may be used in the design or construction of the building.
ISSUES
11When adjudicating Official Plan and Zoning By-law Amendment Appeals, the Tribunal must determine whether the proposed amendments:
are consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”));
conform with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”); and,
represent good planning.
12With regard to Zoning By-law Amendment Appeals, the Tribunal must also determine whether the proposed amendment conforms with the applicable Official Plans.
13For both types of Appeals, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”) and have regard to the information and materials that City Council received in relation to the matters under s. 2.1(2) of the Act.
EVIDENCE AND SUBMISSIONS
14The Appellant filed an affidavit affirmed by Adam Layton, dated April 8, 2024, in support of the proposed settlement. Mr. Layton is a land use planner. He also provided oral testimony at the settlement hearing. The Tribunal qualified him to provide opinion evidence in the area of land use planning.
15The City, Canuck and D’Aversani support the proposed settlement. None provided evidence at the Settlement Hearing.
16At the Settlement Hearing, Mr. Layton stated that the Subject Property is currently vacant and consists of portions of gravel and paved surface utilized for parking and outside storage uses.
17Mr. Layton advised the Proposed Development consists of two purpose-built rental apartment buildings with heights of seven- and five-storeys with a total of 238 units and a Floor Space Index (“FSI”) of 2.3 for all structures on the Subject Property.
18The Proposed Development consists of a total of 216 parking spaces with both underground and surface parking. There will be bicycle parking consisting of 0.5 spaces per dwelling unit for long term parking and 0.5 spaces per dwelling unit for short term parking.
19Mr. Layton stated that the primary site access is proposed to be via a driveway onto Woodbridge Avenue located on the easterly end of the site. This access would pass beneath the building, with residential units located above. The driveway is intended to extend north, with parking and sidewalks distributed across the length, connecting to a secondary site access from Kipling Avenue. This secondary access is provided via an existing laneway and easement associated with York Region Standard Condominium Corporation No. 1141 located at 8032 Kipling Avenue.
20Mr. Layton indicated that it was the Appellant’s understanding that a Shared Roadway Agreement between the lands was executed on March 17, 2008 and registered on title for the Subject Property. He continued that the Condominium Declaration establishes that an easement is to be granted over the Shared Roadway in order to permit the owners of any residential development to use this path for pedestrian and vehicular ingress/egress to Kipling Avenue. The easement is to take effect upon issuance of the first occupancy permit on the Subject Property and construction of a roadway to connect the properties.
21Mr. Layton identified that a proposed trail extends along the entire western edge of the property. The trail is intended to lead to an 893 m2 outdoor amenity area, which will afford further options for outdoor recreation for area residents.
22Mr. Layton stated that the proposed Official Plan Amendment (“OPA”) to permit the Proposed Development requires the following:
Redesignating the Subject Property from “Low-Rise Residential (B)” and “Mid-Rise Mixed Use” to “Mid-Rise Residential” within the Kipling Avenue Corridor Secondary Plan.
Implementing site specific policies related to maximum building height, setbacks from Woodbridge Avenue, and amending certain policies, on a site-specific basis, to permit the intended built form and site plan layout (Policy 9.2.3.5(b) of the City of Vaughan Official Plan 2010 (“COP”), and Policy 11.5.17.9 of the Kipling Avenue Corridor Secondary Plan (“KACSP”); and,
Modifying applicable mapping and schedules to reflect the above referenced amendments.
23Mr. Layton advised that the proposed Zoning By-law Amendment (“ZBA”) to permit the Proposed Development requires the following amendment to the City of Vaughan Zoning By-law No. 1-88 (“ZBL”):
Rezoning the Subject Property from “EM2 – General Employment” Zone and “U – Utility” Zone to “RA2 – Apartment Residential” Zone.
Include the following site-specific exceptions:
i. enclosed Access Stairs may encroach into the rear yard or interior side yard up to 0.5 m from a rear lot line or an interior side lot line.
ii. a total of 215 parking spaces shall be required.
iii. the minimum lot area shall be 30 m2 / unit.
iv. the minimum front yard shall be 1.0 m.
v. the minimum interior side yard (west) shall be 1.5 m.
vi. the minimum interior side yard (east) shall be 1.5 m.
vii. the minimum landscape strip width on an interior lot line abutting another residential zone shall be 1.0 m.
viii. restrict the inclusion of windows, doors, balconies, or other structural encroachments along the eastern façade of the proposed buildings where they abut the D’Aversani lands.
24Mr. Layton also indicated that holding provisions for the Zoning By-law Amendment instrument would be as follows:
Vaughan Council adopts a resolution allocating sewage and water supply capacity in accordance with the City’s approved Servicing Capacity Distribution Policy assigning capacity to the subject lands.
The Owner shall submit a revised Transportation Impact Study to address outstanding comments to the satisfaction of the Development Engineering Department.
The Owner shall submit a Hydrogeological Report that meets all terms of reference as agreed upon under Appendix ‘A’ and Appendix ‘B’ of the Pre-Application Consultation (‘PAC’) Understanding for PAC.21.134 signed by the applicant dated March 12, 2022, all to the satisfaction of the Development Engineering Department.
The Owner shall submit a revised Functional Servicing and Stormwater Management Report that includes the following information to the satisfaction of the Development Engineering Department:
i. Short-term construction and long-term dewatering discharge plans to an approved municipal sewer in coordination with discharge rates and recommendations required to be provided in a subsequent Hydrogeological Report noted herein as a separate holding condition (including any subsequent amendments and/or revisions); and,
ii. Municipal watermain reconstruction design within Woodbridge Avenue including plan and profiles, detailed plans, etc.
Should any municipal infrastructure improvements be identified external to the Subject Lands as required to service the development, the Owner shall enter into an Agreement with the City to secure the design and construction of municipal works internal and/or external to the Subject Lands required to support the Proposed Development to the satisfaction of the City. The Agreement shall be registered against the lands to which it applies, and upon execution, the Owner shall satisfy conditions of the City, financial or otherwise, all to the satisfaction of the City.
- The Owner shall submit a revised Noise Report to the satisfaction of the Development Engineering Department, which includes the consultant’s recommendation as to whether the development should be designated as a Class 1 or Class 4 property:
Due to the proximity of the Subject Property to an existing industrial facility, the Noise Report may be required to be peer reviewed by a noise consultant if a Class 4 designation is proposed to be applied to the Subject Property. Should a peer review of the noise report be required, the Owner is required to pay the review fee in accordance with the City’s Fees and Charges By-law and to amend the Noise By-law to recognize the Class 4 designation for the subject lands.
- A restrictive covenant shall be placed on title for the Subject Property to require that the buildings be operated as residential rental apartment buildings for a minimum of 20 years.
25Mr. Layton identified that the Subject Property is located adjacent to lands presently used for industrial purposes. Land use compatibility is an important consideration and an Air Quality Study, and a Noise Feasibility Study were prepared to ensure the Proposed Development is compatible with adjacent uses, and to ensure that any potential impacts are mitigated such that there is no risk to human health, safety, or comfort within the proposed dwellings.
26Mr. Layton acknowledged that the Air Quality Study that was submitted has demonstrated air quality issues has been addressed such that the proposed use can be approved at the Zoning stage. Additional work is required to determine the impacts from the nearby industrial uses and will be completed as part of a future site plan application.
27Mr. Layton is of the opinion that the proposed instruments are consistent with the PPS providing an intensification of lands located within the established Settlement Area of the City where full municipal services presently exist. The Proposed Development provides rental housing options at a location which is proximate to existing and planned rapid transit as well as a range of community amenities including schools, parks, and shops. The provision of additional residential density can be seen to be making even more efficient use of urban lands, in proximity to a variety of existing and planning community amenities, transit infrastructure, and commercial opportunities.
28Mr. Layton stated that the proposed instruments conform with the Growth Plan by contemplating a medium density-built form on a property which is under-utilized and serviced by existing municipal infrastructure. The Proposed Development encourages intensification within an existing settlement areas, while also more effectively utilizing existing municipal services and resources. The Proposed Development will continue to aid in further diversifying the range of housing options within the community where there is a shortage of purpose-built rental housing options.
29Mr. Layton advised that the Proposed Development would provide transit-supportive densities with easy access to existing and proposed transit services. The Subject Property also abuts the area being considered for a future GO Train station and if the station is approved, he opined that the Subject Property would be included in the resulting MTSA which would set minimum density targets for the Subject Property and the surrounding area.
30Mr. Layton commented that the Subject Property is well serviced by numerous YRT and VIVA Bus Routes. He continued that the Proposed Development would allow for an efficient use of existing infrastructure and access to existing public transit opportunities which provides both inter- and intra-regional connections. The ease of access to these transit opportunities provided by the Subject Property’s location will encourage residents to access alternative modes of transportation.
31Mr. Layton advised that the proposed instruments conform with the York Region Official Plan (“ROP”) by increasing residential density, which will further aid in the achievement of the Growth Plan intensification targets for the Region and the local intensification target within the City by 2051. The Subject Property is within walking distance of a variety of commercial and community amenities, as well as many existing and planned transit routes.
32Mr. Layton stated that the proposed ZBA conforms with the COP as the location of the Subject Property within the Historic Village of Woodbridge, a Local Centre, means that it is well-positioned for intensification. The Proposed Development was designed to leverage the context of the property, including nearby arterial roads, existing and planned rapid transit, and proximity to commercial nodes, institutions, and community facilities while providing a much-needed form and tenure of housing that is notably absent in the community.
33Mr. Layton confirmed that the Proposed Development aligns with the City’s Policy Directions Report (“PDR”) that provides direction to “pursue affordable and attainable housing for residents of different incomes, abilities, ages and stages of life” with the further goal to provide “a broad spectrum of housing types and tenures.”
34Mr. Layton advised that the Proposed Development would support the stated policy goals by intensifying the Woodbridge neighbourhood and providing a housing typology that is not prevalent within the area and is proposing intensification of an underutilized brownfield site in the built-up area.
35Mr. Layton stated that an amendment to the KACSP is proposed to redesignate the Subject Property to the “Mid-Rise Residential” land use designation with site-specific policies to permit a maximum height of seven-storeys (without a podium). Mr. Layton stated that the Proposed Development conforms to the growth management strategies expressed in current provincial policies and plans, while still being only a moderate increase in the intensification proposed in the KACSP.
36Mr. Layton opined that the KACSP envisions that this Subject Property would be redeveloped with residential uses, so the proposed amendment to the KACSP is in alignment with the policies of the KACSP (at a greater height and density). He continued that the proposed residential density therefore would support the mix of uses in the neighbourhood and support walkability.
37Mr. Layton confirmed that he had regard to the matters of provincial interest as set out in s. 2 of the Act, including those in relation to the supply, efficient use and conservation of energy and water; the efficient use of transportation, sewage and water services and waste management systems; the orderly development of safe and healthy communities; the adequate provision of a full range of housing, including affordable housing; the protection of public health and safety; the appropriate location of growth and development; the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; the promotion of a built form that is well designed, encourages a sense of place and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant; and the mitigation of greenhouse gas emissions and adapting to a changing climate.
38Mr. Layton recommends that the Tribunal should approve the OPA and ZBA and withhold its Final Order until:
The final form and content of the Official Plan Amendment is satisfactory to the Owner and the City;
The final form and content of the Zoning By-law Amendment is satisfactory to the Owner and the City;
The Owner has conveyed an easement to the City over the multi-use trail in a form satisfactory to the City;
The Owner has conveyed an easement to Canuck Properties Ltd. as set out in the terms of settlement between Canuck Properties Ltd. and the Owner; and,
The Owner has conveyed an easement to D'Aversani Holdings Inc. as set out in the terms of settlement between D'Aversani Holdings Inc. and the Owner.
39Regarding the grandfathered easement/driveway concerns, Mr. Layton stated that the design of the driveway across the Subject Property would be reviewed further through site plan control process. He advised that appropriate signage and traffic/speed control measures would be implemented to ensure that safety of pedestrians is protected, and to ensure that sufficient opportunity is given for site operations (waste and emergency services) to be reviewed to ensure applicable standards are met. Mr. Layton noted that a Traffic Impact Study (“TIS”) was prepared and reviewed by the City and other agencies to ensure impacts, if any, were mitigated to the greatest extent possible.
40Regarding construction damage concerns, Mr. Layton confirmed that it is standard for a construction management plan to be required by the City as part of the permitting process. He opined that where underground parking is provided, pre- and post-condition surveys of adjacent lands are undertaken to ensure no damage occurs, and to take corrective action, if necessary.
41Regarding adjacency to industrial uses, Mr. Layton advised that Noise and Air Quality Studies have been undertaken to assess the compatibility of the proposed residential use with the adjacent industrial use in accordance with the requirements of the PPS. He continued that the Appellant would ensure that design or mitigation measures are implemented and that the proposed buildings will meet applicable standards.
42Regarding the driveway configuration over condominium lands, Mr. Layton commented that he understands that Article 1.8 of the Condominium Declaration of York Region Standard Condominium Plan No. 1141 outlines the requirement for an easement to be granted over an existing driveway to provide for pedestrian and vehicular ingress and egress for the Subject Property to Kipling Avenue upon issuance of an occupancy permit on the subject lands and the construction of a driveway on the subject lands that connects to the existing driveway on the Condominium lands. Opportunities for access/speed control will be reviewed as part of a future site plan control application.
FINDINGS
43Based on the opinion evidence of Mr. Layton, the Tribunal finds that the proposed instruments are consistent with the PPS and conform with the Growth Plan. It also finds that the proposed ZBA conforms with the COP and ROP. The Tribunal has had regard to the City’s applicable policies and guidelines and the matters of provincial interest in s. 2 of the Act as well as the information and materials that City Council received in relation to the matter. The Tribunal finds that the proposed instruments constitute good planning.
44The Tribunal has taken into account the planning related concerns raised by the Participants and finds that the Appellant has addressed them.
ORDER
45THE TRIBUNAL ORDERS THAT the appeals are allowed, in part, on an interim basis contingent on the satisfaction of the conditions set out in paragraph [46] below and it orders that the Official Plan Amendment, set out in Attachment 1 to this Interim Order, and the Zoning By-law Amendment, set out in Attachment 2 to this Interim Order, are approved in principle.
46THE TRIBUNAL ORDERS THAT the Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:
The final form and content of the Zoning By-law Amendment is satisfactory to the Owner and the City;
The final form and content of the Official Plan Amendment is satisfactory to the Owner and the City;
The Owner has conveyed an easement to the City over the multi-use trail in a form satisfactory to the City;
The Owner has conveyed an easement to Canuck Properties Ltd. as set out in the terms of settlement between Canuck Properties Ltd. and the Owner; and,
The Owner has conveyed an easement to D'Aversani Holdings Inc. as set out in the terms of settlement between D'Aversani Holdings Inc. and the Owner.
47The Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-law Amendment and the issuance of the Final Order.
48If the Parties do not submit the final drafts of the Official Plan Amendment and Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [46] above have been satisfied, and do not request the issuance of the Final Order, by Tuesday, November 5, 2024, the Parties 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 Official
Plan Amendment and Zoning By-law Amendment and issuance of the Final Order by the Tribunal.
“W. Daniel Best”
W. daniel best
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
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