1486594 Ontario Ltd v. Niagara-on-the-Lake (Town), 2025 CanLII 21810

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 12, 2025

CASE NO(S).: OLT-24-001126

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

Applicant/Appellant: Veronica and Mihai Balaj Applicant/Appellant: 1486594 Ontario Ltd Subject: Request to amend the Official Plan – Refusal of request Description: To permit an apartment building containing 41 residential units Reference Number: OPA-04-2022 Property Address: 223 and 227 Mary Street Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No: OLT-24-001126 OLT Lead Case No: OLT-24-001126 OLT Case Name: 1486594 Ontario Ltd v. Niagara-on-the-Lake (Town)

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

Subject: Application to amend the Zoning By-law – Refusal of application Reference Number: ZBA-23-2022 Property Address: 223 and 227 Mary Street Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No: OLT-24-001127 OLT Lead Case No: OLT-24-001126 OLT Case Name: 1486594 Ontario Ltd v. Niagara-on-the-Lake (Town)

Heard: March 5, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
1486594 Ontario Ltd. Veronica and Mihai Balaj	S. Premi S. Premi
Town of Niagara-on-the-Lake	C. Shedden K. Shedden

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON MARCH 5, 2025 AND ORDER OF THE TRIBUNAL

1This Decision relates to appeals brought by 1486594 Ontario Ltd. and Veronica and Mihai Balaj (together referred to as the “Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the refusal of the Town of Niagara-on-the-Lake (“Town”) to approve applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) (together referred to as “applications”). The appeals have been filed regarding lands municipally known as 223 Mary Street (owned by 1486594 Ontario Ltd.) and 227 Mary Street (owned by Veronica and Mihai Balaj) (together referred to as the “Subject Property”).

2On March 5, 2025, the Tribunal held its first hearing event in the appeals, which had been scheduled as a Case Management Conference (“CMC”). In advance of the CMC, the Parties advised the Tribunal that they had reached a settlement and had filed Minutes of Settlement with the Tribunal. The Parties also advised that it was their intent to present a settlement proposal to the Tribunal at the CMC. In response, the Tribunal notified the Parties that, because the CMC was a first hearing event, the presiding Member would address any preliminary matters and determine whether the conversion request from a CMC to a Hearing of the proposed settlement would be granted.

PROCEDURAL MATTERS

3In response to the Tribunal’s inquiry as to whether Counsel were aware of any issues with service of Notice of the CMC, Counsel for the Appellant advised that one document was returned undeliverable, which had been communicated to the Tribunal’s Case Coordinator. The Tribunal did not find that the return of one document rendered the Notice invalid, and further, given that no other issues with Notice were encountered, the Tribunal determined that no further notice is required. The Tribunal was in receipt of the Affidavit of Service of Bev Jong dated February 5, 2025, which was marked as Exhibit 1.

REQUESTS FOR STATUS

4Prior to the CMC, the Tribunal received three (3) requests for Participant status, from: Gracia Janes on behalf of Niagara-on-the-Lake Conservancy; Amir Rastpour and Sylvia Grewatsch, which was marked as Exhibit 2; and, Ramiz and Sare Baykara, which was marked as Exhibit 3.

5On February 15, 2025, the Tribunal received an email from Ms. Janes withdrawing the Participant status request on behalf of the Niagara-on-the-Lake Conservancy.

6Dr. Rastpour and Dr. Grewatsch attended the CMC and had filed a detailed Participant Statement request which explained concerns that they have as neighbours of the Subject Property. Their concerns with the applications include potential negative impacts on environment and on the cultural heritage of the Town, and concerns related to height, density, insufficient parking, and increased traffic. On consent of the Parties, the Tribunal granted Amir Rastpour and Sylvia Grewatsch status as a Participant to the Appeal.

7Mr. and Ms. Baykara did not attend the CMC, however, they filed a detailed Participant Statement request setting out concerns which were similar to those of Dr. Rastpour and Dr. Grewatsch. In their statement, they acknowledged that the original proposal had been revised but explained that many of their concerns remain unaddressed by the revisions. While the Tribunal generally requires anyone requesting status in an appeal to be present at the CMC to address any questions or concerns of the Tribunal or the Parties, the Tribunal determined that the detailed statement provided by Mr. and Ms. Baykara, which raised similar concerns to those of Dr. Rastpour and Dr. Grewatsch, was sufficient to consider the request in their absence. Further, in the event that conversion to a settlement would be granted, the Planning expert for the Appellant had addressed the concerns of Mr. and Ms. Baykara in his Affidavit. On consent of the Parties, the Tribunal granted Ramiz Baykara and Sare Baykara status as a Participant to the Appeal.

8In response to the Tribunal’s inquiry, there were no other persons nor entities requesting Party or Participant status present at the CMC..

PROPOSED SETTLEMENT

9After addressing preliminary matters at the CMC, and in the absence of any opposition, the Tribunal granted the Parties’ request to convert the CMC to a Hearing to consider the settlement, in accordance with Rule 19.6 of the Tribunal’s Rules of Practice and Procedure.

10Counsel for the Appellant confirmed that the OPA and ZBA before the Tribunal are the same versions as the instruments that were before Town Council. The Parties jointly requested that the Tribunal allow the appeals and approve the proposed OPA and ZBA, which are attached to this Order as Attachment 1 and Attachment 2 respectively.

11On the consent of the Parties, Jesse Auspitz, a Registered Professional Planner retained by the Appellant, and Aimee Alderman, a Registered Professional Planner employed by the Town, were both qualified by the Tribunal to provide land use planning opinion evidence in support of the proposal. The Parties filed a Joint Document Book, which the Tribunal marked as Exhibit 4.

Background

12The Subject Property is comprised of two separate abutting lots with a combined lot area of 4,130.0 square metres and combined frontage on Mary Street of 45.59 metres. The Subject Property is currently improved with a single-storey residential dwelling, detached garage and shed on 227 Mary Street and vacant grassy land on 223 Mary Street.

13Ms. Alderman provided a comprehensive overview of the Subject Property and reviewed the interesting history of the applications. The uses surrounding the Subject Property include low-rise residential with commercial uses to the south along Mary Street and Mississauga Street. The Subject Property is in close proximity to existing higher-order transportation corridors and existing and planned cycling infrastructure. Ms. Alderman explained that the Subject Property is located in Old Town, which is primarily made up of lower-density, single-detached existing built forms. She noted that this area is currently in a state of flux, evidenced by the recent increase in applications for medium density in this area which have been approved by the Town or the Tribunal.

14The Town Official Plan (“Town OP”) locates the Subject Property within the Established Residential and Built-up Area and pursuant to the Town Comprehensive Zoning By-law 4316-09, as amended (“ZBL”) the Subject Property is zoned Old Town Community Zoning District – Established Residential (ER) Zone.

15As noted above, the history of the applications is an interesting one, considering that the proposed OPA and ZBA before the Tribunal in the settlement are exactly as those drafted by Town Staff in the original applications. Given the unusual process the applications underwent with the Town, it is worth briefly setting out the history leading up to the settlement between the Parties.

16The applications were the subject of a pre-consultation meeting with the Town in March, 2022 which led to the original applications being submitted on November 11, 2022. The applications were deemed complete on December 16, 2022.

17Public open houses, a statutory public meeting, the Town’s Urban Design Committee meeting and agency comments all led to the applications being revised by the Appellant. On February 1, 2024, a full resubmission was submitted by the Appellant to facilitate the proposed development of a four-storey apartment building containing 41 residential units, 4 surface parking spaces and 44 underground parking spaces (“Proposal”).

18To facilitate the Proposal, the Appellants submitted an application for an OPA which would redesignate the Subject Property from Established Residential to a residential exception designation EX-RES-16 with site-specific exemptions to permit a Medium Density Residential designation (4-storey apartment building) with a maximum net residential density of 100 units per hectare. The Appellant also submitted an application for a ZBA which would rezone the Subject Property from Old Town Community Zoning District – Established Residential Zone to Old Town Community Zoning District – Residential Multiple (RM1-115-H) – Site Specific Holding Zone with site-specific provisions for maximum building height, minimum front yard, interior side yard and rear yard setbacks and minimum landscaped open space.

19On September 10, 2024, Town Staff’s recommendation report number CDS-24-108, found at Tab 5 of Exhibit 4 (“Report”) was approved by the Committee of the Whole – Planning. Despite this approval, on September 24, 2024, Town Council disregarded the recommendations in the Report, refused to ratify the decision of the Planning Committee, and refused the applications. On October 24, 2024, the Appellant appealed the decision of Town Council to this Tribunal.

20Subsequently, Town Council instructed the Town’s legal Counsel to reach a settlement with the Appellant and the Town supported the approval of the OPA and ZBA found at Attachment 1 and Attachment 2 to this Order.

21In her Report, Ms. Alderman provides a helpful summary of the revisions to the original proposal which were the result, in part, of comments from Town departments, external agencies and the public. The key revisions include a reduction in the overall height of the building from 18 metres to 13.8 metres and an overall redesign of the building which includes increased setbacks, in-setting balconies, eliminating the rooftop amenities (including a swimming pool), relocating the driveway and the inclusion of a children’s play area.

Evidence

22Mr. Auspitz prepared an Affidavit in support of the settlement, which was filed as Tab 1 in Exhibit 4, wherein he provided a detailed contextual and planning rationale in support of the Proposal.

23Mr. Auspitz and Ms. Alderman opined that the OPA and ZBA have regard for matters of Provincial interest as set out in s. 2 of the Act, as they will facilitate a development that will add to the range of available housing options, while being thoughtfully designed to mitigate compatibility concerns by incorporating generous interior side yard setbacks.

24The Proposal that would be facilitated by the OPA and ZBA meets Provincial and municipal policies overall. Compatibility issues are mitigated with generous interior side- and rear-yard setbacks, which also assist in mitigating any shadow impacts. Privacy and noise impacts have been mitigated through a decrease in the overall height of the proposed building from 18 metres to 13.8 metres, the elimination of the rooftop patio and pool, and increased landscaping. Further, the landscaping features and increased setbacks would provide a buffer between the development and the existing dwellings in the area.

25In his written affidavit, Mr. Auspitz explained that the proposed ZBA recommends the inclusion of a Holding (H) symbol which would be removed once the following two requirements were met, to the satisfaction of the Town:

(a) Merging in title of 223 and 227 Mary Street, confirmed through the submission of a parcel register and a PIN map; and

(b) A stormwater management approach is addressed and any required agreements are entered into prior to Site Plan Approval.

26Both Mr. Auspitz and Ms. Alderman agreed that the inclusion of the Holding (H) symbol to address stormwater management is not unusual and in both of their opinions was appropriate in this circumstance

27Mr. Auspitz and Ms. Alderman further agree that there is sufficient water and sanitary sewer capacity to service the development and the Holding (H) symbol will allow the timing of the upgrades to Mississauga Street to align with the connection to the Mary Street sewer as well as ensuring that appropriate agreements are entered into between the Appellant and the Town.

28Ms. Alderman highlighted that tree impacts were one of the important considerations for the Town. The revisions addressed the Town’s concern by maintaining as many existing trees as possible with the requirement of additional plantings that will be finalized through the site plan approval process.

29Mr. Auspitz and Ms. Alderman addressed concerns raised by the Participants and explained that the revisions to the Proposal addressed these concerns. Mr. Auspitz opined that the reduction in building height and the inclusion of restrictive zoning provisions, including the stepbacks, will mitigate any compatibility and privacy impacts. Further, stormwater management will be addressed at the site plan stage and the Holding (H) Symbol included in the ZBA will ensure that there is a stormwater management approach for the proposed development. In response to the parking and traffic concerns, Mr. Auspitz opined that these are appropriately addressed through the Proposal. In her viva voce evidence, Ms. Alderman explained that the proposed parking complies with the ZBL while noting that the majority of the parking will be located underground to mitigate visual impacts. Mr. Auspitz agreed emphasizing that the proposed parking exceeds the number of spaces required in the ZBL for an apartment building. Mr. Auspitz noted that the Town did not raise any concerns related to traffic and he opined that the Proposal conforms with policies in the Town OP. The Subject Property fronts onto a collector road and policies in the Town OP require designs of medium density residential to direct traffic to and from the location to be within easy access to a collector roadway.

30Mr. Auspitz and Ms. Alderman opined that the OPA and ZBA that will facilitate the Proposal satisfy all requisite legislative tests and overall are representative of good planning and are in the public interest.

ANALYSIS

31The Tribunal accepts the uncontested opinion evidence of Mr. Auspitz and Ms. Alderman and finds that the proposed OPA and ZBA are consistent with the Provincial Planning Statement, 2024 and conform with the Growth Plan, if applicable, and are appropriate to implement the Municipal and Provincial policy directions. The Tribunal heard that the Report was drafted by the Town prior to the coming into force of the Provincial Planning Statement, 2024, however the Experts confirmed that their opinions remain unchanged and the Proposal is consistent with both documents.

32The Tribunal has had regard for applicable policies and guidelines and matters of provincial interest set out in s. 2 of the Act and finds that the proposed OPA and ZBA constitute good land use planning. The Tribunal considered the information and materials that the Town received in relation to the applications.

33In considering the matter, the Tribunal accepts the opinions of both experts that the OPA and ZBA which will facilitate the Proposal represent a compatible form of development in an area with existing infrastructure and services. There is a need for additional housing options in the Province and the Proposal is a form of moderate intensification which will assist the Town in achieving its intensification targets.

34The Tribunal accepts the opinion evidence of Mr. Auspitz and Ms. Alderman which was proffered in response to the concerns raised by the Participants. The revised setbacks and landscaping that were included in the Proposal will mitigate privacy and noise concerns and the inclusion of the Holding (H) Symbol in the ZBA addresses stormwater management concerns. The Tribunal heard from Ms. Alderman that the Proposal provides sufficient parking spaces to meet the requirements set out in the Town’s Zoning By-law. Both Ms. Alderman and Mr. Auspitz opined that the height and density are appropriate where the Subject Property is located. Ms. Alderman explained that the height of the Proposal was reduced from 18 metres to 13.8 metres. She opined that this significantly mitigated any compatibility impacts given that the maximum height permitted for the surrounding properties is 10 metres.

35The Tribunal finds that the Proposal is an appropriate and desirable use of the Subject Property and in conjunction with the OPA and ZBA represent good land use planning. The Tribunal will allow the appeal and approve the OPA and ZBA for the reasons set out above.

ORDER

36THE TRIBUNAL ORDERS THAT:

(a) Amir Rastpour and Sylvia Grewatsch are granted Participant status;

(b) Ramiz Baykara and Sare Baykara are granted Participant status.

37THE TRIBUNAL FURTHER ORDERS THAT the appeals are allowed and:

(a) The Official Plan for the Town of Niagara-on-the-Lake is amended as set out in Official Plan Amendment No. 97, which is attached as Attachment 1 to this Order; and

(b) The Municipality is directed to amend Zoning By-law 4316-09 as set out in Zoning By-law 4136FS-24, which is attached as Attachment 2 to this Order.

38The Tribunal may be spoken to concerning issues that might arise from the implementation of this Order.

“C. Hardy”

C. HARDY VICE-CHAIR

Ontario Land Tribunal Website: 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.