1000165428 Ontario Inc. v. City of Cambridge, 2024 CanLII 92107

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 17, 2024

CASE NO(S).: OLT-24-000438

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 1000165428 Ontario Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: Rezone subject property from RM4 to (H)RM4 & facilitate 2 mixed terrace buildings

Reference Number: OR10/23

Property Address: 220 and 222 Blair Road

Municipality/UT: City of Cambridge

OLT Case No.: OLT-24-000438

OLT Lead Case No.: OLT-24-000438

OLT Case Name: 1000165428 Ontario Inc. v. Cambridge (City)

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

Applicant/Appellant: 1000165428 Ontario Inc.

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

Description: Rezone subject property from RM4 to (H)RM4 and facilitate 2 mixed terrace buildings

Reference Number: OR10/23

Property Address: 220 and 222 Blair Road

Municipality/UT: City of Cambridge

OLT Case No.: OLT-24-000439

OLT Lead Case No.: OLT-24-000438

Heard: August 22, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
1000165428 Ontario Inc.	J. Meader – Co-Counsel M. de Jong – Co-Counsel
City of Cambridge Region of Waterloo	N. Auty F. McCrea

MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE ON AUGUST 22, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matters before the Tribunal are appeals filed by 1000165428 Ontario Inc. in respect of the refusal of the Council of the City of Cambridge (“City”) to pass by-law(s) to adopt an amendment to the City of Cambridge Official Plan (“COP”) and to amend the City of Cambridge Zoning By-law No. 150-85, as amended (“ZBL”). The appeals affect two parcels of land, municipally known as 220 and 222 Blair Road in the City of Cambridge (“Subject Property”).

2The Subject Property has a combined area of approximately 3,885 square metres (“sq m”) and a combined lot frontage of 37.9 metres. At present on the Subject Property, there are a total of five(5) rental housing units contained within a 2-storey four-plex located at 220 Blair Road, and a 2-storey single-detached dwelling located at 222 Blair Road.

3By way of background, 1000165428 Ontario Inc. submitted applications to the City on November 29, 2023, seeking amendments to the COP and to the ZBL to facilitate the re-development of the Subject Property. The proposal is to replace the existing buildings with two 3-storey stacked townhouse buildings comprised of 16 dwelling units each, a common amenity area, a surface parking lot, and a berm adjacent to the abutting CN Rail line (“Proposed Development”). The Proposed Development, comprised of a total of 32 dwelling units, would, if approved, represent a net increase in housing supply of 27 units.

4The Subject Property is designated Low/Medium Density Residential under the COP and zoned RM4 under the ZBL.

5The “Applications”: to facilitate the Proposed Development, approval of the following is sought:

a) a proposed amendment to the COP seeking a site-specific exception that would have the effect of increasing the maximum permitted residential density on the Subject Property from 40 to 83 units per hectare (the “OPA”); and,

b) a proposed site-specific amendment to the ZBL that would have the effect of increasing the maximum density permitted to 83 units per hectare (“upha”), reducing the minimum common amenity area required per unit from 30 sq m to 18 sq m, establishing a 30 m setback to the rail line for residential uses, and establishing a prohibition on the use of geothermal wells (the “ZBLA”).

6Additionally, the ZBLA includes a Holding zone provision requiring:

• a detailed technical study that addresses road, rail and stationary noise sources, as well as a vibration study due to proximity to the CN Rail line to be undertaken; and,
• engineering reports, studies and drawings to be prepared to the satisfaction of the City.

7A statutory public meeting on the Applications was held on January 30, 2024, at which time several members of the public provided oral and/or written submissions regarding their concerns in respect of the Proposed Development. These concerns related primarily to the removal of existing rental housing and the implications for displacement of the existing tenants.

8Following City Staff’s review and analysis of the Applications, circulation comments, and input received at the Public Meeting, a City Staff Recommendation Report recommending approval of the Applications was brought forward to City Council for consideration at its meeting on March 19, 2024.

9After hearing submissions made on behalf of the Applicant by City Staff and members of the public, including one of the existing residents Michelle LaRiviere and a neighbouring resident Resa Heagle, City Council decided to refuse the applications “due to potential displacement of existing tenants and the perceived high density of the proposed development”.

THE HEARING

10A two-day Hearing on the merits of the appeals was scheduled to commence on August 22, 2024. In advance of the Hearing, the Applicant and City advised the Tribunal in writing that they had reached a settlement in respect of all issues between them.

11The Tribunal marked the Affidavit of Service, sworn by Victoria Peacock on June 26, 2024, as Exhibit 1, serving as proper notice of this Hearing.

12In accordance with Rule 12.1 of the Tribunal’s Rules of Practice and Procedure, the Hearing on the merits of the appeals was converted to a Hearing on the merits of the settlement. The Tribunal Member clarified that the Tribunal’s role in the proceedings is to hear evidence on the planning merits of the settlement, being, in this case, the Applications and proposed OPA and ZBLA to be presented for the Tribunal’s consideration.

13In advance of the Hearing, the Tribunal received three requests for status on the matters before it.

14The Region of Waterloo, which is ordinarily the approval authority for amendments to the COP, submitted a request for Party status in relation to the s.34(11) appeal based on their role in reviewing and providing recommendations on such applications, which they did in this case. The Region advised the Tribunal that the Region is satisfied that its recommendations and conditions in respect of the Applications have been addressed and that the Region has no objection to the approval of the requested OPA and ZBLA to be presented to the Tribunal. The Tribunal granted the request of Party status to the Region on consent of the Parties.

15The Tribunal considered the request for Party Status submitted by Michelle LaRiviere, who resides on the Subject Property at 220 Blair Road and, as noted above, made submissions to City Council. Ms. LaRiviere confirmed that she had read Rule 8 of the Tribunal’s Rules of Practice and Procedure and was aware of the difference between the roles and responsibilities of a Party versus a Participant, and further confirmed that it was not her intention to call a witness to provide evidence, but rather that it was her intention to have the Tribunal consider the detailed written submission(s) that she had submitted to the Tribunal and had circulated to the Parties in advance of the Hearing, as documentary evidence.

16The Tribunal reviewed Ms. LaRiviere’s written submissions. Her submissions relate to concerns about any agreement between the City and Appellant regarding compensation for existing tenants that would be displaced through the re-development of the Subject Property; the potential loss of affordable rental housing, particularly for condominium real estate; and whether the Proposed Development has regard for matters of Provincial interest and Provincial policy and conforms with the ROP and the COP.

17The Tribunal clarified, and Counsel for the Parties agreed, that the Tribunal has no jurisdiction over any discussions/negotiations between the Applicant and the City, nor the terms of a settlement that may include compensation financial or otherwise, in respect of tenancy.

18With respect to the planning-related concerns set out in Ms. LaRiviere’s written statement(s), the Tribunal confirmed that it would be seeking to hear a response to the specific planning concerns and the Provincial, Regional and City planning policies cited in the written submissions from the planning witness called by the Appellant. After considering the submissions of both Ms. LaRiviere and Counsel for the Parties, the Tribunal granted Ms. LaRiviere Participant status.

19The Tribunal also considered and granted Participant status to Resa Heagle, who resides nearby the Subject Property at 230 Blair Road and made submissions to City Council. Her concerns relate to the proposed increase in density on the Subject Property, the proposed unit types, whether the Development Proposal is consistent with Provincial policy, and the potential impact on affordable rental housing supply.

LEGISLATIVE TESTS

20When adjudicating official plan and zoning by-law amendment appeals, the Tribunal must determine whether the proposed amendments:

a) are consistent with policy statements issued by the Minister – in this case, the Provincial Policy Statement, 2020 (“PPS”);

b) conform, not conflict, with applicable Provincial plans – in this case, A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”);

c) conform with the applicable upper tier official plan – in this case, the Region of Waterloo Official Plan (“ROP”); and,

d) represent good planning.

21For a zoning by-law amendment appeal, the Tribunal must also determine whether the proposed amendment conforms with the applicable official plans (in this case, both the ROP and COP).

22Further, 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 (“Act”) in arriving at its decision. As well, pursuant to s. 2.1(1) of the Act, the Tribunal must have regard to the decision made by City Council and any information or materials that City Council received in relation to the matters.

EVIDENCE

23In support of the settlement, the Appellant called Victor Labreche, a registered professional planner in the Province of Ontario, to provide expert planning opinion evidence. Mr. Labreche currently holds the position of Associate Director, Practice Lead, Planning with Arcadis. He has previously been qualified as a planning expert before the Ontario Municipal Board and Local Planning Appeal Tribunal (both predecessors of the Tribunal). The Tribunal has considered his education and professional work experience, and being satisfied of his credentials qualified him to provide expert planning opinion evidence on the matters before it.

24The following documents were filed with the Tribunal and marked as follows:

Exhibit 2: Document Book dated August 16, 2024 filed by the Appellant

Exhibit 3: Witness Statement of Victor Labreche dated August 16, 2024

Exhibit 4: Written Statement of Michelle LaRiviere dated August 1, 2024 and Addendum thereto dated August 21, 2024

Exhibit 5: Participant Statement of Resa Heagle

25Mr. Labreche provided evidence that the proposed OPA and ZBLA that are before the Tribunal in the hearing, found in Exhibit 2, Tab 14 and Tab 15, respectively, are the same as what was recommended by City Staff in their Recommendation Report and considered by City Council.

26Mr. Labreche’s opinion evidence on the planning merits of the Applications, provided by way of documentary evidence, namely the Final Planning Justification Report and Urban Design report (“PJR”) which he authored and is found in Exhibit 2, at Tab 2B of his Witness Statement (Exhibit 3), and his oral testimony was detailed and uncontradicted.

27He presented evidence that the Subject Property is within the Built-Up Area as identified in the Growth Plan, ROP and COP, and that the Provincial, Regional and City planning policies direct growth and promote intensification within this area, with the goal of increasing much-needed housing supply.

28Mr. Labreche provided evidence that the Subject Property is under-utilized, located in a predominantly residential area with park/open space uses within walking and cycling distance, and that it is served by adequate infrastructure, including municipal services and bus transit.

29Mr. Labreche pointed the Tribunal to the preliminary Site Plan prepared by Arcadis found in Exhibit 2, Tab 2C, PDF Page 97 which illustrates the two proposed 3-storey stacked townhouse buildings situated on the northerly portion of the Subject Property, a safety berm adjacent to the abutting CN Rail line, and an outdoor common amenity area in between. The existing two entrances off Blair Road are proposed to be consolidated, providing access to a surface parking lot providing 40 spaces including barrier-free parking. He also opined that the Proposed Development is compatible with the surrounding land uses and in keeping with the character of the neighbourhood.

30It is his opinion that the proposed stacked townhouses are defined as Mixed Terrace under the ZBL, and are permitted uses in the RM4 zone, subject to the performance standards set out therein. Aside from the maximum permissible density and minimum common amenity area standards, the Proposed Development would comply with the RM4 standards.

31It is Mr. Labreche’s expert planning opinion evidence that, by way of the increase in density, the proposed Applications would facilitate much-needed further housing supply for the City to which the Proposed Development would contribute, with its net increase of 27 units.

32Through both his written evidence and oral testimony to the Tribunal, Mr. Labreche demonstrated to the Tribunal that he had considered the applicable Provincial, Regional and City land use planning policy in detail and had arrived at his expert planning opinion that the Applications, OPA and ZBLA meet the applicable policy tests at the Provincial, Regional, and local levels, represent good planning, and are in the public interest.

Planning Policy Analysis

33On matters of Provincial interest, he opines that the s.2 f), h), l), p) and q) of the Act are particularly relevant, and that the Proposed Development to be facilitated by the Applications would: optimize the use of land and infrastructure; contribute towards a fuller range of housing types; result in an increase in housing supply (27 net units) in an appropriate location for growth and development; and provide for a more compact housing form via stacked townhouses, which, based on their size will lend themselves towards rental stock or more affordable home ownership in the neighbourhood. It is his opinion that the above matters are consistent with the public interest.

34On consistency with the PPS, he opined that the Applications, OPA, and ZBLA, are consistent with the policies regarding intensification within existing Settlement Area(s) and the Built-Up Area; with the utilization of existing infrastructure; efficient development patterns; and with the provision of a variety and appropriate mix of housing types at an appropriate scale that is able to rely on existing parks and open spaces in the Blair Road Community. He opined that the Proposed Development would result in a net increase of 27 residential units which will assist in meeting the long-term needs of the community.

35On conformity with the Growth Plan, he opined that the Proposed Development, OPA and ZBLA support the goal of complete communities; healthy and active living; planned density; transit-supportive development; and range and mix of housing options within the community which will assist in achieving the minimum intensification targets of the Growth Plan for delineated Built-Up Areas.

36On conformity with the ROP, he opined that the Proposed Development, OPA, and ZBLA conform to the policies of the ROP by providing compact, transit-supportive infill development that aims to increase housing variety and supply. It is his opinion that the Proposed Development will contribute towards the intensification policy of 65 percent of new growth being within the Built-Up Area.

37On conformity with the COP, but for the amendment(s) sought, it is his opinion that the Applications meet the general intent and purpose of the COP policies, including the criteria for intensification. In terms of the policies related to the provision of a range and mix of housing, he opined that the Development Proposal would increase housing supply (by net 27 units) and that the proposed housing type (stacked townhouse) could be suitable for moderate incomes, which aligns with the COP policies.

38It is Mr. Labreche’s opinion that the proposed OPA and ZBLA are appropriate and desirable in that, if approved, will result in residential intensification that is compatible with the surrounding neighbourhood and is a more efficient use of land and existing infrastructure.

Participant Statements

39Participant LaRiviere’s concerns are summarized by the Tribunal as: displacement of existing tenants; potential loss of affordable housing; the need to plan for the provision of a range and mix of housing options to meet projected market-based and affordable housing needs of current and future residents; the need to maintain an adequate supply of both ownership and rental housing stock; and, the need to preserve existing purpose-built rental housing.

40Participant Heagle’s concerns are summarized by the Tribunal as: a concern regarding the proposed increase in density on Subject Property; the proposed unit types; whether the Development Proposal is consistent with Provincial policy; and the potential impact on affordable rental housing supply.

41Mr. Labreche provided the Tribunal with his opinion with respect to the concerns set out in the written statements of the Participants, found in Exhibits 4 and 5, as discussed below.

42Mr. Labreche pointed to the various planning policies that were identified in the written submissions of the two Participants and provided his opinion as to the applicability of each in regards to the Applications, and, for those applicable he provided his opinion as to the general intent and purpose of the policy and how the policy was addressed or satisfied by way of the proposed OPA and ZBLA.

43Mr. Labreche also outlined the general trend in provincial policy related to housing over the last several years and its relationship to the matter before the Tribunal. He pointed to several Bills on Provincial planning policy, which, from his perspective as a practicing Planner he sees as providing policy changes and initiatives to encourage/enable an increase in the overall supply of housing, as supporting and encouraging more density in the right locations to improve supply for moderate- to lower-income households and removal of red-tape barriers and streamlining of the planning approvals process to allow more housing to come onstream more quickly.

44With respect to the concerns related to preservation of rental housing stock, Mr. Labreche pointed to Provincial policy opportunities for Municipalities to mandate new rental housing in new projects and require the replacement of rental units in situations where six or more existing rental units are proposed to be demolished; however, he clarified for the Tribunal that the City has not enacted a By-law to implement those measures at this time.

45Although he was not involved in the discussions that transpired between the Applicant and the City, Mr. Labreche testified that he is aware that the primary concern of City Council regarding the displacement of the existing tenants has been addressed by way of Minutes of Settlement (“MOS”) dated July 29, 2024 which are found in Exhibit 2, at Tab 7.

Conclusions

46In summary, it was Mr. Labreche’s uncontradicted expert opinion that the Applications, OPA, and ZBLA represent good planning, have regard to matters of Provincial interest, are consistent with the PPS, conform not conflict with the Growth Plan, conform with the ROP, and maintain the general intent and purpose of the COP.

ANALYSIS AND FINDINGS

47The Tribunal accepts the uncontradicted expert planning opinion evidence provided by Mr. Labreche and on that basis finds that the Applications, along with the OPA and ZBLA found in Exhibit 2, Tab 14 and Tab 15, respectively, have regard for matters of Provincial interest, are consistent with the PPS, and conform, or not conflict, with the Growth Plan, conform with the ROP, meet the general intent and purpose of the COP, and represent good planning.

48With respect to the issue of density: It was the uncontroverted opinion evidence of the Planner during the Hearing that the proposed density increase to permit 83 upha is appropriate and represents good planning. The Tribunal agrees with the Planner that the Subject Property, as it exists today, is under-utilized. Given its location within the Built-Up Area and the Provincial, Regional and City planning policy framework, which encourages intensification in these areas, and given the Planner’s evidence that the Development Proposal illustrates that all other provisions of the ZBL can be met, including height, setbacks, parking (in this instance provided at grade), the Tribunal agrees that there is merit in allowing additional density on the Subject Property. The evidence presented is that there are no issues with respect to traffic and there is adequate infrastructure (servicing) to accommodate the increase in density. By virtue of its recommendation for approval, City Staff are also satisfied that the amount of increase in density on the Subject Property is appropriate. On this basis, the Tribunal is satisfied that there would be no adverse impact in allowing an increase in density on the Subject Property.

49The Tribunal finds that the OPA and ZBLA will facilitate re-development of the Subject Property that is fully supported by City Staff and as presented, is appropriate and desirable, in that it will contribute to much needed housing supply, through the introduction of 32 new dwelling units which will be required to meet the current Ontario Building Code standards, including those related to energy-efficiency. This represents an additional 27 units of housing for singles, couples and families who would not otherwise have such an opportunity.

50However, the unfortunate consequence would be the displacement of the existing tenants of the five units on the Subject Property when re-development occurs. This was a concern of City Council and a reason for not approving the Applications initially.

51In this case, the City does not at present have a By-law in place to mandate the retention and/or replacement of existing rental housing stock.

52However, the appeal led to discussions between the City and the Applicant, and in an effort to address the concerns, the Applicant has entered into MOS, with the City agreeing to obligations for compensation, etcetera, to lessen the adverse impact on the existing tenants. As noted previously, this is not a matter over which the Tribunal has jurisdiction.

53The Tribunal is persuaded by the expert opinion evidence provided that the Applications promote efficient development of land, intensifies uses within the settlement area, contributes to the range of housing options, and is supported by existing municipal infrastructure.

54The Tribunal is satisfied that the OPA and ZBA are appropriate to facilitate the re-development of the Subject Property for the provision of much-needed housing supply in a manner that fits within its local context, represents good planning, and is in the public interest.

55In making its decision on the appeals before it, the Tribunal has had regard to matters of Provincial Interest as set out in s.2 of the Act, and is satisfied that the Applications will facilitate an appropriate level of intensification and increase housing supply and variety in housing forms which are in the interest of the public.

56The Tribunal has had regard for the decision of Council, and for the information and materials before it. The Tribunal acknowledges the City’s support of the settlement and the approval of the OPA and ZBLA. The Tribunal also acknowledges the Region’s support for approval of the Applications.

57The Tribunal finds that the proposed residential infill development aligns with Provincial, Regional and City goals and objectives with respect to directing 65 percent of new development to the Built-Up Area and providing an opportunity to increase housing stock to meet the growing demand for housing options in the City. The Tribunal finds that the Applications represent good planning and are in the public interest.

58In conclusion, the Tribunal allows the appeals, and approves the OPA and ZBLA as attached hereto for the reasons set out in this decision.

ORDER

59THE TRIBUNAL ORDERS THAT:

(a) the appeals by 1000165428 Ontario Inc. are allowed;

(b) the Official Plan for the City of Cambridge is hereby amended as set out in Attachment 1 to this Order; and

(c) the City of Cambridge Zoning By-law No. 150-85, as amended, is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of the City of Cambridge to assign a number to this by-law for record-keeping purposes.

“S. L. Dionne”

S. L. DIONNE

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.