Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 13, 2025
CASE NO(S).: OLT-24-000813
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Hyson Properties Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit development of 13-storey mixed-use building 210 residential units
Reference Number: OPA22.009
Property Address: 5964 Main Street and 28 Fairview Avenue
Municipality/UT: Whitchurch-Stouffville
OLT Case No.: OLT-24-000813
OLT Lead Case No.: OLT-24-000813
OLT Case Name: Hyson Properties Inc. v. Whitchurch-Stouffville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Hyson Properties Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit development of 13-storey mixed-use building 210 residential units
Reference Number: ZBA22.018
Property Address: 5964 Main Street and 28 Fairview Avenue
Municipality/UT: Whitchurch-Stouffville
OLT Case No.: OLT-24-000814
OLT Lead Case No.: OLT-24-000813
Heard: December 12, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Hyson Properties Inc.
Max Reedijk
Katarzyna Sliwa
Town of Whitchurch-Stouffville
Did Not Attend
DECISION DELIVERED BY DAVID BROWN AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal concerns two appeals filed by Hyson Properties Inc. (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), against the decision of the Town of Whitchurch-Stouffville (“Town”) that refused an application for an Official Plan Amendment (“OPA”) and an application to amend the Zoning By-law (“ZBA”)(together the “Applications”).
2The Applications were submitted to the Town to facilitate the redevelopment of the lands known municipally as 5964 Main Street and 28 Fairview Avenue (“Subject Property”) with a 13-storey, inclusive of mechanical penthouse, mixed-use building.
3An Affidavit of Service, sworn on October 17, 2024, was filed with the Tribunal, confirming that notice of these proceedings was provided in accordance with the directions provided by the Tribunal.
4The Tribunal was in receipt of correspondence from the Town’s Solicitor, addressed to Counsel for the Appellant, dated August 20, 2024 (“August 20 Correspondence”), advising that Town staff will not be attending the Hearing and that the Town is not contesting the approval of the OPA and ZBA, subject to the imposition of two conditions.
5Five requests for Participant status were received by the Tribunal prior to the commencement of the Hearing. Mr. Reedijk confirmed that the Appellant has no objections to granting the requests for Participant status.
6The Tribunal reviewed the requests for Participant Status and notes that the individuals seeking Participant status reside in close proximity to the Subject Property and have each filed a Participant Statement with the Tribunal that outlines their position on the Appeals, together with an explanation of their reasons in support of their position.
7The Tribunal granted Participant status to: Stephen Sword, Catherine Sword, Sarah Stoute, Don Hepburn, and Carolyn and Shawn Vitale.
BACKGROUND
8The Subject Property is comprised of two parcels of land located at the northwest corner of Ninth Line and Main Street, and has frontage on Main Street, Ninth Line, and Fairview Avenue. The Subject Property is occupied by a commercial building that is currently vacant.
9Surrounding the Subject property to the north, east, and south are single detached residential uses and community uses. To the west are commercial, office, and mixed residential uses along Main Street. There are redevelopment proposals to the west of the Subject Property along the Main Street corridor comprised of higher density residential and mixed residential uses in varying stages of the approval process, or currently under construction.
10The Stouffville GO Transit Station is located within 600 metres (“m”) east of the Subject Property. The Stouffville GO Transit Station is identified as a Protected Major Transit Station Area (“PTMSA”) in the York Region Official Plan (“YROP”), providing public transit connections to Downtown Toronto and other regional centres.
11The Applications were filed on December 15, 2022, and the Town deemed the Applications complete on January 19, 2023. The Applications, at the time of submission, proposed an 18-storey mixed-use residential building, with a six-storey podium and grade related commercial floor space. The proposal comprised a total of 200 residential units and 216 vehicle parking spaces provided in an underground parking structure, and a surface parking area. Access was proposed from Ninth Line.
12A revised proposal was filed with the Town in November 2023, in response to feedback provided on the original submission. A Statutory Public Meeting was held on January 31, 2024.
13The revised proposal was further revised, and a submission was filed with the Town on April 23, 2024. The revision proposed a 13-storey building, including the mechanical penthouse, having a height of 45 m. The mixed-use building would include 210 residential units, 281 square metres (“m2”) of gross floor area (“GFA”) for commercial use, and 307 m2 of GFA for live/work units. The total GFA proposed is 17,994 m2, with a Floor Space Index (“FSI”) of 4.37. 248 parking spaces are proposed, and a potential access to Fairview Avenue is identified (“Proposed Development”).
14The Town Planning staff prepared a report dated June 26, 2024, recommending approval of the Applications based on the Proposed Development (“Staff Report”). The Applications and the Staff Report were considered by Town Council at their meeting on June 26, 2024. Town Council refused the Applications, citing that the Proposed Development does not meet the height provisions contained in the new draft Official Plan of the Town, safety concerns with the proposed access, and the lack of parking availability.
15The Appellant filed Appeals against the decisions of the Town Council on July 23, 2024.
16The Town’s Solicitor, in the August 20 Correspondence, advised that:
Town Staff shall not attend the appeal and that the Town shall not contest approval of the Official Plan Amendment and Zoning By-law Amendment as presented at the June 26, 2024 Council meeting, by the OLT, subject to the appellant advising the Tribunal that the town requests the imposition of the same conditions as Staff recommended in Staff Report No. DS-039-24, being:
Satisfactory Arrangements for Sanitary Sewer and Water Servicing Allocation with the Town of Whitchurch-Stouffville; and
Appropriate access and traffic mitigation requirements to be provide in accordance with required plans and studies to the satisfaction of the Town of Whitchurch-Stouffville and the Region of York.
17The Appellant advised the Town that, should the Tribunal allow the Appeals and grant the Applications, they will request and consent to the imposition of the two conditions requested by the Town.
SUBMISSIONS
18Chris Pereira, a Registered Professional Planner, was qualified to provide opinion evidence as an expert in the area of land-use planning. Mr. Pereira submitted a Witness Statement in support of the Applications and the Proposed Development.
19The Appellant is seeking approval of the Applications to facilitate the redevelopment of the Subject Property with the Proposed Development. The OPA is proposing to expand the Western Approach Area boundary in the Community of Stouffville Secondary Plan (“CSSP”) of the Town’s Official Plan (“TOP”) to include the parcel of land fronting on Fairview Avenue and redesignate said lands to Mixed Use Area. The OPA will also include certain site-specific policies applying to the Proposed Development. The ZBA is proposing to amend the zoning applying to the Subject Property to a CM2 (15) Western Approach Mixed Commercial Exception to address the specific characteristics of the Proposed Development. The ZBA proposes a Holding provision that requires the two conditions identified in paragraph [16] above to be satisfied prior to the removal of the Holding provision.
Planning Policy Framework
20Having reviewed the matters of provincial interest, as set out in s. 2 of the Act, Mr. Pereira proffered that the Proposed Development is an efficient use of both land and municipal infrastructure and optimizes those systems in a location where growth and redevelopment are to be directed. The Proposed Development implements the planned function of the area and contributes to the orderly and safe development of communities while introducing additional housing opportunities for the area. The Proposed Development is transit supportive given the proximity to the Stouffville GO Transit Station. Through appropriate massing and built form organization, including multiple stepbacks, the Proposed Development is well-designed and will assist in framing and creating a pedestrian friendly streetscape along Main Street and Ninth Line. Mr. Pereira submitted that the Proposed Development optimizes servicing, community infrastructure and amenities, provides appropriate intensification on underutilized lands within an established neighbourhood, and fronting on to an arterial road. The Proposed Development adds to the supply of housing in the area to accommodate the diverse needs of the population while supporting and facilitating the creation of healthy, safe, and complete communities.
21Mr. Pereira opined that the OPA and ZBA have appropriate regard for matters of provincial interest under s. 2 of the Act.
22Mr. Pereira reviewed the Provincial Planning Statement, 2024 (“PPS 2024”) and proffered that the Proposed Development contributes to the housing supply along Main Street by proposing a highly efficient built form to an area that contains a mix of residential and commercial uses, and thus contributes to a complete community. The Proposed Development proposes a development form within an established Settlement Area that is compact and efficient, and that fits the area’s emerging context of a mixed-use and pedestrian-oriented community. Mr. Pereira submitted that the Proposed Development proposes a high-density, residential development fronting on Main Street that optimizes the use of land and existing transit infrastructure, being located within 600 m of the Stouffville GO Transit Station. The Proposed Development promotes new housing in an area where appropriate infrastructure exists, or can be feasibly constructed, to support the Proposed Development. The Proposed Development provides development standards that are appropriate for the Subject Property as a compact urban form, minimizes the cost of housing, and efficiently uses land, resources, and infrastructure to ensure long term economic prosperity.
23Mr. Pereira opined that the proposed OPA and ZBA are consistent with the PPS 2024.
24The Greenbelt Plan designates the Subject Property as Oak Ridges Moraine Area, requiring that the Applications are consistent with the Oak Ridges Moraine Conservation Plan (“ORMCP”). The Subject Property is located within a Settlement Area under the ORMCP that allows for development of lands for all urban area uses permitted within the applicable official plan. Mr. Pereira opined that the Proposed Development conforms to the Greenbelt Plan and the ORMCP.
25The Subject Property is designated as Community Area under the YROP and is located within the Built-Up Area in the Urban System Overlays Map 1B of the YROP. Mr. Pereira proffered that the YROP directs the majority of growth and redevelopment to the Built-Up Area. The Proposed Development provides appropriate massing, height, and scale consistent with the overall vision and emerging character of the area, and has been organized to ensure compatibility by providing podium massing and stepbacks to appropriately transition downwards to the surrounding low-scale residential neighbourhood. Mr. Pereira opined the Proposed Development represents an appropriate level of intensification and density of an underutilized site, in a strategic area, to maximize efficiencies and infrastructure investment, human services provision, and transit ridership as the Subject Property is located within PTMSA 71, identified in the YROP.
26Mr. Pereira opined that the Proposed Development conforms with the policy objectives of the YROP.
27The OPA proposes to expand the Western Approach Area in the CSSP to include the entirety of the Subject Property and to extend the designation of Western Approach – Mixed Use Area to include the additional parcel fronting on to Fairview Avenue. Mr. Pereira reviewed the applicable policies of the CSSP and proffered that the Applications conform to the TOP and the CSSP as the Proposed Development provides a transit and pedestrian oriented mixed-use development within the urban area, and makes efficient use of existing infrastructure, servicing, and community facilities. The Proposed Development implements the intent of the TOP and the CSSP with a built form contemplated by the Western Approach Area as an extended Gateway Area and secondary focal point in the Town.
28Further, Mr. Pereira proffered that the Proposed Development implements the planned function of the area by contributing to the vision of Main Street as a mixed-use corridor, with appropriate scales of intensification and urbanization, and with height and density designed to create a sense of place. The built form presence and high-quality architectural design reflects the prominence of the site, while the density proposed supports the anticipated level of urbanism, as well as the Stouffville GO Transit Station infrastructure being a 10-minute walk from the Subject Property.
29Mr. Pereira opined that the OPA and ZBA implement the policy direction of the TOP, and in the case of the amendments to the CSSP sought through the OPA, conform to and are consistent with the applicable provincial policies.
30On May 15, 2024, the Town Council adopted the Town’s new Official Plan (“New OP”). Currently, the New OP is awaiting final approval from the Minister of Municipal Affairs and Housing. Mr. Pereira acknowledged that the New OP is not in force and effect, however, the New OP represents Town Council’s current emerging vision for the Town. Having reviewed the New OP, Mr. Pereira opined that the Applications, as required to facilitate the Proposed Development, conform with the applicable policies and implements the direction of the New OP.
31Mr. Pereira proffered that the Proposed Development, at 12 storeys, maintains the intent of the planned function of the Western Approach Area, which speaks to mid-rise buildings at “generally 9 storeys” as the Proposed Development is a mid-rise form that provides appropriate transition through significant terracing and stepbacks from the adjacent low-rise development to the north of the Subject Property. Mr. Pereira opined that the Proposed Development balances intensification along an important corridor with appropriate urbanization and by providing a pedestrian supportive scale and active streetscape along both Main Street and Ninth Line.
PARTICIPANT STATEMENTS
32The Tribunal received Participant Statements from the Participants granted Status in these proceedings, and Mr. Pereira summarized the issues raised into four areas and responded to the issues as follows below.
1. Traffic Congestion and Safety
33In consideration of the Traffic Congestion and Safety concerns, Mr. Pereira responded that a potential access was proposed to Fairview Avenue in response to the concerns raised by Town Council and the neighbours. The Traffic Impact Study (“TIS”) prepared in support of the Applications assessed the potential access and impact on the surrounding road network, concluding that traffic conditions will operate within acceptable levels of service and with projected residual capacity. The Staff Report notes that the Town’s Peer Review Traffic Consultant, having reviewed the TIS, raised no concerns with the proposed Fairview Avenue access.
34Mr. Pereira advised that access is a matter typically addressed through the Site Plan Approval process, at which time the parking, site access, and technical details will be addressed. Further, he noted that the Holding provision in the proposed zoning by-law requires the Appellant to provide appropriate access and traffic mitigation requirements to the satisfaction of the Town and the Region of York (“Region”). Mr. Pereira concluded that the TIS has not identified any traffic or safety issues, and the final access configuration will be dealt with during the Site Plan Approval process.
2. Garbage / Loading Area Location
35Mr. Pereira explained, similar to the traffic and access issues, that garbage storage, loading area, and landscaping details will be addressed at the Site Plan Approval stage of the process. He proffered that these site plan matters were reviewed, on a preliminary basis, during the review of the architectural drawings that were submitted to support the Applications, and Town staff have not raised any issues with the garbage storage, loading area, and landscaping areas proposed.
36Mr. Pereira opined that the Proposed Development utilizes good design characteristics to mitigate potential issues with respect to the garbage storage and loading areas. He explained that the loading area has been integrated into the podium and has been screened from public view by an overhead door, thus significantly reducing potential concerns relating to noise or odours. It was further noted that garbage will be stored within an enclosed garbage room accessible from the internal loading space area. In addition to the function, location, and orientation of the loading space, the Proposed Development further reduces potential negative impacts from the loading area through spatial separation and landscape screening. Mr. Pereira explained that the loading bay is located 14 m from the north property line, and the overhead door opening faces Ninth Line.
37Mr. Pereira noted that immediately adjacent the loading bay, along the north wall of the proposed building, a landscape planting area is proposed, in addition to a row of ornamental tree plantings along the north property line adjacent to a proposed 1.8 m tall, wood, privacy fence. He proffered that this layered approach, combined with the distance between the loading area and the residential properties, demonstrates good site planning to reduce or eliminate where possible the issues identified.
3. Density and Parking
38With respect to the proposed density, Mr. Pereira proffered that the Proposed Development is the appropriate planning and urban design solution for the Subject Property. The Staff Report also supports the Proposed Development confirming that the proposed density can be accommodated with respect to traffic, parking, and servicing, subject to the Appellant demonstrating same through technical review during the site plan stage.
39Mr. Pereira opined that the Proposed Development implements the planned function of the Western Approach Area policies of the CSSP, which seek to urbanize Main Street while transitioning to lower scale areas. The transition has been achieved through a substantial sculpting of the building through rear stepbacks to generally comply with a 45-degree angular plane.
40The Proposed Development provides sufficient parking, provides a height and built form that implements the planned function of the CSSP while being contextually appropriate, and can be accommodated within the existing infrastructure, subject to the required upgrades to those services. He proffered that the Proposed Development will not result in any undue impacts with regards to shadow, privacy, or overlook, and employs appropriate site plan practices. Mr. Pereira concluded that the Proposed Development is not an overdevelopment of the Subject Property as purported by the Participants.
4. Environmental and Social Impact
41The Subject Property in its current form is predominantly covered by asphalt. Mr. Pereira submitted that the Proposed Development includes plantings and an enhanced public realm along Ninth Line and Main Street.
42In response to the claim that there is a lack of park space or recreational space, Mr. Pereira noted that Rupert Park is located less than 300 m from the Subject Property. Further, he noted the Proposed Development includes both indoor and outdoor amenity space for the future residents, provided at a combined rate of 4 m2 per unit.
43Mr. Pereira proffered that the environmental considerations and social impacts have been addressed with the Proposed Development.
44In conclusion, Mr. Pereira opined the OPA and ZBA, as revised to facilitate the Proposed Development, represent good planning, sustainable urbanism, and are in the public interest. He requested the Tribunal to allow the Appeals and approve the OPA and ZBA in accordance with the draft planning instruments submitted to the Tribunal.
ANALYSIS AND FINDINGS
45The Tribunal, having considered the uncontroverted evidence of Mr. Pereira and the analysis and recommendations included in the Staff Report supporting the approval of the OPA and ZBA, finds that the Appeals should be allowed, and the Applications should be approved.
46The OPA and ZBA, as proposed to implement the Proposed Development, have appropriate regard for matters of provincial interest, as set out in s. 2 of the Act. The Proposed Development is an efficient use of land and municipal infrastructure, and optimizes servicing, community infrastructure, and amenities. The Proposed Development is transit supportive with the proximity to the Stouffville GO Transit Station and is an appropriate intensification on underutilized lands in an urban settlement area.
47The Tribunal finds that the Applications are consistent with the PPS 2024 as they propose a compact, efficient, and transit-supportive development that makes use of existing infrastructure. The Applications conform with the Settlement Area policies of the Greenbelt Plan and the ORMCP.
48The Tribunal finds that the OPA and ZBA conform to the YROP that directs growth and intensification, as is proposed with the Development Proposal, to the Built-Up Area.
49The Tribunal finds that the Applications conform with, and implement, the policy direction of the TOP and the CSSP.
50The Tribunal finds that the Proposed Development represents a compact, high-density development that meets broader Town objectives while maintaining an appropriate contextual fit with appropriate massing and stepbacks to provide transition to the adjacent, lower-scale built form.
51The Tribunal finds that the Proposed Development addresses the issues raised by the Participants. The Tribunal notes that the access, garbage location, and landscaping are site plan matters that are not typically finalized at the OPA or ZBA stage. While these matters are appropriately considered at the ZBA stage of the process, they are not finalized until a site plan is approved. The Appellant has demonstrated that these matters have been considered, and provisions have been made to accommodate the requirements of the approval authority(ies) at the appropriate stage in the approval process.
52Pursuant to s. 2.1 of the Act, the Tribunal has reviewed the decision of the Town Council with respect to this matter and issues identified therein. The Tribunal finds that the New OP was not in effect at the time of the consideration of the Applications, and as such, can not be applied to the Proposed Development. The vehicular access and parking proposed has been reviewed by the Region and Town staff, and has been reviewed through a TIS that was Peer Reviewed with no issues or concerns identified, and the issue of access is finalized through the Site Plan Approval process.
53The Tribunal finds that the OPA and the ZBA represents good planning and is in the public interest.
54The Tribunal allows the Appeals in part and approves the OPA as set out in Attachment 1 to this Order and approves the ZBA as set out in Attachment 2 to this Order. The conditions requested by the Town in the August 20 Correspondence have been incorporated into the Holding provision of the draft zoning by-law instrument found at Attachment 2.
ORDER
55THE TRIBUNAL ORDERS THAT the appeal filed pursuant to section 22(7) of the Planning Act is allowed and the Official Plan for the Town of Whitchurch-Stouffville is amended as set out in Attachment 1 to this Order.
56AND THE TRIBUNAL ORDERS THAT the appeal filed pursuant to section 34(11) of the Planning Act is allowed and By-law No. 2010-001-ZO is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of the Town of Whitchurch-Stouffville to assign a number to this by-law for record keeping purposes.
“David Brown”
DAVID BROWN
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