Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 08, 2024
CASE NO(S).: OLT-22-004764
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: M5V Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To rezone the subject lands to construct a 6-block stacked back-to-back townhouse development
Reference Number: 350309-0522
Property Address: 0-15850 Rebstock Road
Municipality: Town of Fort Erie
OLT Case No.: OLT-22-004764
OLT Lead Case No.: OLT-22-004764
OLT Case Name: M5V Inc. v. Fort Erie (Town)
Heard: February 5, 2024 by Video-Hearing
APPEARANCES:
Parties
Counsel
M5V Inc.
Rocco Vacca
Town of Fort Erie
Callum Shedden
Alexander Hobbs
MEMORANDUM OF ORAL DECISION DELIVERED BY N. EISAZADEH ON FEBRUARY 5, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This appeal arises following a refusal by the Town of Fort Erie (“Town”) of an initial application for a Zoning By-law Amendment (“ZBA”) to facilitate the development of a six-block mix of both stacked and back-to-back townhouses, at the property municipally known as 0-15850 Rebstock Road (“Subject Lands”).
2M5V Inc. (the “Applicant”) is also an appellant-party, among others, to appeals pursuant to s.17(24) and 34(19) of the Planning Act (“Act”) against the Town’s decision to adopt Official Plan Amendment No. 56 (“OPA 56”), known as Crystal Beach Secondary Plan (“Crystal Beach SP”), and ZBA No. 144-2021 (“ZBA 144-2021”), which implements the Crystal Beach SP (the “Related Appeals”).
3By prior Order of this Tribunal dated January 27, 2023, Member K. R. Andrews directed that the site-specific ZBA currently before the Tribunal be heard together with the Related Appeals and scheduled a 15-day merit hearing commencing Monday August 12, 2024.
4Disposition of only the site-specific ZBA appeal has now come before the Tribunal as a Settlement Hearing.
5A statistical summary comparing the original proposal to the settlement proposal that is currently before the Tribunal is illustrated in the following chart:
6The Tribunal confirms that it has received, reviewed, and considered the following central materials and submissions:
i. the uncontested opinion evidence of Mary Lou Tanner, a Registered Professional Planner and full member of the Canadian Institute of Planners, as tendered orally as well as contained in her comprehensive affidavit sworn January 15, 2024 (marked as Exhibit 1 with all exhibits attached thereto);
ii. the Minutes of Settlement between the Town and Applicant dated November 27, 2023 (marked as Exhibit 4);
iii. the draft instrument, being the draft ZBA, in support of the proposed settlement (marked as Exhibit 3);
iv. a draft Order submitted to give effect to the relief jointly being sought (marked as Exhibit 2);
v. the Participant Statement of Faith Blacquiere filed with the Tribunal;
vi. the oral submissions of Mr. Vacca, Counsel for the Applicant, in support of the settlement; and,
vii. the oral submissions of Mr. Shedden, Counsel for the Town, including the adoption of the evidence of Ms. Tanner and the draft Order and instruments, in support of the settlement.
DECISION
7The Tribunal understands that the aforementioned sworn affidavit evidence of Ms. Tanner reflects revisions to the application before the Tribunal that were reached through the cooperative efforts of the Parties.
8The Tribunal further acknowledges that the evidence of Ms. Tanner, which the Town adopts and agrees with in support of the settlement reached, sets out that the revisions to the application address the key concerns of members of the Public, of Town Council (when the original application was initially refused) and of Faith Blacquiere, who was previously granted Participant Status. Those concerns are, namely and in summary fashion: density, parking rate, stacked townhouses as a housing form, height, landscaped area percentage and parking location. Ms. Tanner testified that the revised settlement proposal, inter alia, achieves the following:
a. Reduced density from 103 units per hectare to 61 units per hectare;
b. Continued proposed parking rate at 1.25% spaces per unit, which is the common standard within intensification areas, recognizing the existence of both active transportation and on-demand transit;
c. Proposed townhouses and back-to-back townhouses, thereby eliminating stacked townhouses as a housing form;
d. Reduced height from 3.5 storeys to 2.5 storeys;
e. Provided 25% landscaping;
f. Removed parking spaces along the entrance of the driveway in favour of landscaped area; and,
g. Provided appropriate setbacks with landscaping to separate the development from the existing single detached homes to the south and east.
9The Tribunal accepts the opinion evidence of Ms. Tanner, as presented, and similarly finds that the subject application, as revised, has regard to those applicable matters of provincial interest found in section 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020, conforms to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, conforms with the Niagara Regional Official Plan, conforms with the Town of Fort Erie Official Plan and otherwise reflects principles of good land use planning.
OFFICIAL PLAN AMENDMENT NO. 61
10OPA 56, which is subject to the Related Appeals, contains a site-specific provision for the Subject Lands and specifically limits the density to between 25 and 50 units per hectare. The Parties are agreed that the subject ZBA application was submitted before the adoption of the Crystal Beach SP and therefore, per the Clergy Principle, is not an applicable plan to the subject appeal. However, to ensure that the Crystal beach SP, upon final disposition by the Tribunal of those Related Appeals, accurately reflects the current Minutes of Settlement in this site-specific ZBA, the Parties have included a proposed Official Plan Amendment No. 61 (“OPA 61”) as Schedule “E” of their Minutes of Settlement (marked as Exhibit 4), which alters the policies for the Subject Lands as follows:
i. It replaces the density range to read “25 to 61 units per hectare”; and,
ii. It adds a new clause that zoning will implement the location and height of the buildings.
11Notwithstanding that the current ZBA application was submitted before the adoption of the Crystal Beach SP and that OPA 61 is not currently before the Tribunal for disposition, the Tribunal agrees that it is good administrative practice to align the Crystal Beach SP with the Minutes of Settlement on the present appeal. This will provide clarity and certainty between the Crystal Beach SP and the zoning, as well as eliminate potential future interpretation issues. Accordingly, while it cannot be Ordered in the present case, the Tribunal agrees that the proposed OPA 61 is appropriate for consideration of approval by the Tribunal when considering the Related Appeals, as it will align the Secondary Plan policies with this approved ZBA.
ORDER
12THE TRIBUNAL ORDERS THAT:
The appeal is allowed, in part, and directs the municipality to amend By-law No. 129-90 as set out in Attachment “1” to this Order. The Tribunal authorizes the municipal clerk of the Town of Fort Erie to assign a number to this by-law for record keeping purposes.
The lands affected by this Order are those more thoroughly described in Attachment “2” to this Order.
“N. Eisazadeh”
n. eisazadeh
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 “1”
ATTACHMENT “2”
Municipal Address:
0-15850 Rebstock Road, Crystal Beach, Ontario
Legal Description:
PIN: 64185-0304 (LT)
PT LTS 23 & 24 CON BROKEN FRONT LAKE ERIE BERTIE, PT 2, 59R4492 EXCEPT PT 1, 59R14371; TOWN OF FORT ERIE