Phoenix Harbour Old Montreal Road Inc. v. Ottawa (City), 2024 CanLII 88911

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 04, 2024

CASE NO(S).: OLT-23-000954

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/ Appellant: Phoenix Harbour Old Montreal Road Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To develop a residential subdivision on the subject lands

Reference Number: D02-02-18-0021

Property Address: 1146-1208 Old Montreal Road

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-000954

OLT Lead Case No.: OLT-23-000954

OLT Case Name: Phoenix Harbour Old Montreal Road Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Reference Number: D07-16-18-0001

Property Address: 1146-1208 Old Montreal Road

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-000955

OLT Lead Case No.: OLT-23-000954

Heard: In writing

APPEARANCES:

Parties

Counsel

Phoenix Harbour Old Montreal Road Inc.

Jacob Polowin

(“Appellant”)

Michael Polowin

City of Ottawa

Timothy Marc

(“City”)

Tamarack (Cardinal Creek) Corporation

Ursula Melinz

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The Tribunal convened a written Settlement Hearing concerning an appeal by the Appellant of the City of Ottawa’s (“City”) failure to make a decision on Applications for a Zoning-By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPS”) within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).

2The proposed development would facilitate a residential subdivision, including residential apartments, semi-detached dwellings, townhouses, stacked townhouse units and a municipal park on the property municipally addressed as 1146, 1154, part of 1172, 1176, 1180 and 1208 Old Montreal Road in the City (“subject lands”).

3Tamarack (Cardinal Creek) Corporation was previously granted Party Status.

SUBJECT LANDS

4The subject lands are located on the south side of Old Montreal Road, east of Trim Road, in the area known as Cardinal Creek. The subject lands have approximately 262 metres of frontage on Old Montreal Road, and a total area of approximately 7.19 hectares (17.7 acres).

5The subject lands are currently occupied by detached dwellings at 1154, 1176 and 1180 Old Montreal Road, with outbuildings located at 1208 Old Montreal Road.

6The south edge of the subject lands is defined by a creek corridor which is a tributary to the Cardinal Creek. The DPS and ZBA applications do not propose any development south of this feature.

7The parcel at 1172 Old Montreal Road is not owned by Phoenix and does not form part of the applications. The property is occupied by a detached residential dwelling and has access from Old Montreal Road via a shared driveway.

8The subject lands are designated “Neighbourhood” on Schedule B8 (Suburban East) of the Ottawa Official Plan, which allows a mix of residential building forms and densities.

PROPOSED SETTLEMENT

9The Applicant and the City (collectively, the “Parties”) have agreed to a comprehensive resolution of the appeals and wish to reflect their agreement herein, before the Tribunal for approval.

10The Parties request that the Tribunal allow the appeals and approve in principle the ZBA (attached as ATTACHMENT “A”) and DPS (attached as ATTACHMENT “B”), and DPS Conditions (attached as ATTACHMENT “C”) and that the City is provided the authority to give final approval of the DPS.

11Tamarack (Cardinal Creek) Corporation has prepared a Cost Sharing Agreement for lands including the Phoenix Lands and is responsible for implementing it.

12The Settlement Proposal before the Tribunal provides approximately 440 residential units in the form of townhouses (podium, back-to-back stacked) and apartment dwellings. The structural components of the Settlement Proposal include the following:

a) Approximately 440 residential units

b) 1 park block (4,454 square metres)

c) 1 pathway block (1,788 square metres)

d) 1 open space block (519 square metres)

e) 1 creek corridor block (24,025 square metres)

f) 1 public local street

g) 1 road widening block (2,262 square metres)

WITNESS

13Evidence in support of the proposed Application was provided by the Affidavit of Paul Black, a land use planner. Mr. Black was qualified to provide expert land use planning opinion evidence.

14The Tribunal marked the following documents as Exhibits:

Exhibit 1: MOS dated August 14, 2024;

Exhibit 2: Affidavit of Paul Black dated August 15, 2024;

Exhibit 3: Draft ZBLA;

Exhibit 4: Draft DPS; and

Exhibit 5: Draft DPS conditions

EVIDENCE

Section 2 of the Planning Act

15According to Mr. Black, the development as proposed would make efficient use of existing communication, transportation, sewage, and water infrastructure. In addition, there is adequate provision of a full range of housing including affordable housing and protection of public health and safety. According to Mr. Black the proposed development is appropriate location of growth and development.

16Mr. Black highlighted s. 51(24) of the Act and several sections that the ZBL and DPS shall have regard to including the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality including the following:

a. the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

b. whether the proposed subdivision is premature or in the public interest;

c. whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

d. the suitability of the land for the purposes for which it is to be subdivided;

f. the dimensions and shapes of the proposed lots;

g. the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

h. conservation of natural resources and flood control;

i. the adequacy of utilities and municipal services;

j. the adequacy of school sites; and,

k. the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes.

17In Mr. Black’s opinion, the Settlement Proposal has regard for the applicable matters of Provincial interest in the Act and the criteria set out in s. 51(24) of the Act.

Provincial Policy Statement (2020) (“PPS”)

18Mr. Black highlighted several sections of the PPS. He advised that, s. 1 of the PPS supports building strong and healthy communities through the wise management of change and promotion of efficient land use and development patterns.

19Mr. Black highlighted s. 2 of the PPS and advised the subject land is located within the defined Settlement Area of the City where the PPS directs the majority of growth and development to occur. The proposed development includes a range of apartment and townhouse dwellings that will address market demand and contribute to the range of housing options available in the area while helping the City meet their long-term growth objectives. According to Mr. Black the subject land is located in proximity to existing infrastructure and public service facilities and will make efficient use of these.

20With regards to the protection of natural features, Mr. Black advised the Settlement Proposal provides a significant setback from the Cardinal Creek tributary and protection of the valley lands that will ensure its protection.

21In Mr. Black’s opinion, the proposed redevelopment and the implementing planning instruments are consistent with the PPS.

City of Ottawa Official Plan (“City OP”) (2022)

22Mr. Black submitted within the City OP s. 5.4.1 provides policies related to built form and site design applicable to Neighbourhoods within the Suburban Transect as follows:

2. The Suburban Transect is generally characterized by Low- to Mid-density development. Development shall be:

a. Low-rise within Neighbourhoods

23Mr. Black advised, the proposed zoning details propose building heights of up to six storeys and maximum 20 metres in height. The Settlement Proposal includes low and mid-rise housing in the form of townhouse (including back-to-back and stacked) and apartment dwelling units. City staff are satisfied with the proposed heights.

24Mr. Black highlighted policy 5.4.5(1) which provides that residential growth within Neighbourhoods in the Suburban Transect and within a 15-minute neighbourhood shall meet the target residential density range of 40 to 60 dwellings per net hectare in accordance with Table 3b of the City OP. According to Mr. Black, the Settlement Proposal has a density of 134 units per net hectare. The City OP, states,

The expressed density ranges are targets with respect to existing and new development in combination and individual sites may be lower or higher than the indicated targets as provided for in Policy 12 c) below.

25According to Mr. Black, policy 3.2(12)(c) states that the density targets from Table 3b shall be implemented in the ZBL through a municipally initiated zoning conformity exercise and:

may determine different maximum built form permissions, and minimum density requirements where applicable, as appropriate to lot fabric, neighbourhood context, servicing and proximity to Hubs, Main streets, Minor Corridors, rapid-transit stations and major neighbourhood amenities.

According to Mr. Black City’ Staff are satisfied with the proposed density.

26Mr. Black highlighted, s. 6.3.1 of the City OP which defines Neighbourhoods and sets the stage for their function and change over the life of the Plan. In addition, para 3 Development in the Neighbourhood designation which seeks additional height beyond 4 storeys:

a. May be evaluated through a ZBA, without the need to amend this Plan, in cases that fall under the provisions of s. 6.3.1 Policy 2) but where the zoning does not provide corresponding permissions; and

b. In all other cases, require an area-specific policy through an amendment to this Plan.

According to Mr. Black, OPA 25 permits building heights up to six storeys on the subject lands.

27In Mr. Black’s opinion, the Settlement Proposal and proposed zoning details conform to the City OP.

Cardinal Creek Concept Plan

28Mr. Black advised the subject lands are located within the Cardinal Creek Village Concept Plan area. Mr. Black highlighted several sections of the plan including s.3 which encourages compact urban development. Mr. Black advised, the subject lands are designated “Existing Residential” on Figure 2 within the Cardinal Creek Concept Plan and according to Mr. Black, this designation falls within the larger “Residential Areas” designation which comprises the majority of the development within the Cardinal Creek Village community.

29According to Mr. Black, the subject lands proposes a mix of mid-rise apartments and townhouses that has appropriate regard for the vision for the subject lands set out in the Concept Plan. The subject lands are located along an Arterial Road and at the intersection of an Arterial and a Collector and are therefore suitable for the proposed medium-density housing form.

30Mr. Black advised the Cardinal Creek Concept Plan anticipates that the subject lands, although existing residential, could develop at some point in the future. Specifically, Table 3 (“Dwelling Unit Projections”) states that the Concept Plan assumes that 75 percent of the existing residential areas would be developed with low-density housing, while the remaining 25 percent would be developed with medium-density housing. The proposed development contributes to the 25 percent of the existing residential lands that were anticipated to develop as low-rise apartments or similar forms.

31According to Mr. Black a portion of the subject lands is also designated “Urban Natural Feature” on the Land Use Plan. These features form part of the Greenspace Network in the Concept Plan. Per s. 3.8, the intent of the greenspace network is to augment and integrate existing elements (including watercourses) with additional open spaces in the form of parks and stormwater management facilities in order that a full range of passive recreational opportunities can be accommodated. Per 3.8.1, Urban Natural Features shall be dedicated to the City.

32Mr. Black contends, the Settlement Proposal provides protections for the Cardinal Creek tributary and urban natural feature along the south edge of the subject lands. The proposed park block abuts the corridor and will provide opportunities for active recreation adjacent to the natural areas.

33In Mr. Black’s opinion, the proposed Settlement Proposal and proposed zoning details have appropriate regard for the Cardinal Creek Concept Plan.

Relevant Guidelines and Other Considerations

34Mr. Black advised that, Design Guidelines for Greenfield Neighbourhoods illustrate the City’s expectations for greenfield neighbourhoods and are to be considered through the processing of DPS. The following guidelines have been incorporated into the Settlement Proposal:

1. Plan and build new communities based on the inherent capacity of the natural landscape to sustain the community over time;

2. Create a connected network of parks, greenspaces and public lands that is structured by existing natural features and connected by pathways and sidewalks. Make this network easily accessible on foot or bike from homes throughout the neighbourhood;

3. Conserve natural features such as woodlots, wetlands and creeks, and the natural connections between them, to sustain healthy habitats for plants and animals;

4. Preserve existing green corridors such as along watercourses, as connections for wildlife and for pedestrians and cyclists. Maintain the natural character of these features and limit the number of encroachments;

5. Incorporate landform features and topography in the design of road and block patterns to maximize vistas and visual interest and reduce extensive earth movement requirements;

6. Create a walkable neighbourhood with pathways, trails and sidewalks that are accessible year round and that connect destinations such as transit stops, commercial areas, schools, community facilities and parks;

7. Locate residential buildings close to the property line with their primary face addressing the street, while making room for trees and utilities. Provide visual interest along the streetscape with a variety in setbacks and projections;

8. Mix various types of housing on each street while considering the relationship (height, size, bulk) between each other, and to existing houses;

9. Design building façades so that windows and doors are prominent features that address the streets they front;

10. Site and design residential buildings on corner lots so that both the front and the side of the building are oriented to the public street and are detailed with similar quality and style;

11. Locate surface parking areas of multi-unit residential buildings away from public view and not between the public street and the building. Design and landscape parking areas so they do not detract from any rear yard amenity space; and,

12. Provide a landscape buffer along the edges of multi-unit residential parking areas, in situations where they are along a public street. Provide breaks in the buffers to connect the sidewalk to walkways on the site. Buffers may include low shrubs, trees, and decorative fences.

Disposition

35In the absence of any planning evidence to the contrary, the Tribunal finds and accepts the land use planning evidence and expert opinion provided by Mr. Black, that the proposed ZBA and DPS has regard for the matters of Provincial Interest under the Act, represents good planning and is in the Public Interest, is consistent with the policies of the PPS, conforms to the City OP and Cardinal Creek Concept Plan and meets the Design Guidelines for Greenfield Neighbourhoods.

36The Tribunal acknowledges the cooperation between the Parties in having reached a Settlement.

ORDER

37THE TRIBUNAL ORDERS that the appeals filed by Phoenix Harbour Old Montreal Road Inc. are allowed in part;

38AND THE TRIBUNAL FURTHER ORDERS:

1. City of Ottawa Zoning By-law No 2008-250, as amended, is further amended in accordance with the Zoning By-law Amendment at ATTACHMENT “A” to this Order; and

2. The Draft Plan of Subdivision prepared by Mirel. Aradau, Ontario Land Surveyor and signed on August 13, 2024, at ATTACHMENT “B” to this Order is approved, subject to the Conditions of Draft Approval at ATTACHMENT “C” to this Order.

39AND THE TRIBUNAL FURTHER ORDERS that, in accordance with the Planning Act, s. 51 (56.1), the City of Ottawa is provided the authority to give final approval of the Plan of Subdivision for the purposes of the Planning Act, subsection 51(58), subject to the Planning Act, subsection 51(56.2).

40The City of Ottawa is authorized to assign a By-law number to the Zoning By-law in Attachment A to this Order for record-keeping purposes.

41AND THE TRIBUNAL FURTHER ORDERS that the Tribunal Member is seized and may be spoken to in the event matters arise in connection with the implementation of this Order.

“Eric S. Crowe”

ERIC S. CROWE

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.

ATTACHMENT “B”

Draft Plan of Subdivision

ATTACHMENT “C”