Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 2, 2025
CASE NO(S).: OLT-24-000358
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Build Up Development Co.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the construction of a 6-storey mixed use building.
Reference Number: D09-04-23
Property Address: 650 Main Street West
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-24-000358
OLT Lead Case No.: OLT-24-000358
OLT Case Name: Build Up Development Co. v. Port Colborne (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Build Up Development Co.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the construction of a 6-storey mixed use building.
Reference Number: D14-07-23
Property Address: 650 Main Street West
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-24-000359
OLT Case Name: Build Up Development Co. v. Port Colborne (City)
Heard: October 18, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Build up Development Co. (Appellant/Applicant) | Marc Kemerer |
| City of Port Colborne | Thomas Richardson Sara Premi |
DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This matter before the Tribunal was with respect to the appeals of the refusal from City of Port Colborne (“City”), regarding Applications to amend the Official Plan and Zoning By-law.
2Build Up Development Co. submitted applications to the City for a Zoning By-law Amendment (“ZBA”) and an Official Plan Amendment (“OPA”) to permit the construction of a six-storey mixed-use building. The development will include 95 residential units and 326 squares metres of ground floor commercial space.
3The Tribunal heard that a Settlement had been reached and was presented in consideration for the Tribunal in a written format.
4The Tribunal received the following materials for this Settlement:
- Affidavit of Jessie Auspitz - Exhibit 1
- Document Book - Exhibit 2
EVIDENCE AND SUMMARY OPINION
5The Tribunal was presented with the affidavit and witness statement of Jesse Auspitz, Principal Planner of NPG Planning Solutions Inc, a planning consulting firm specializing in land use planning and development management services in support of the Settlement.
6Mr. Auspitz provided that:
the Subject Lands are located within an area designated as a Built-up Area under both Schedule A1 of the City’s Official Plan and Schedule B of the Region’s Official Plan. They are on the south side of Main Street West:
a. 600 metres west of the intersection of Main Street West and West Side Road, which features a variety of commercial uses;
b. 1.8 kilometres northwest of the City’s downtown core;
c. east of the intersection of Main Street West and Killaly Street West; and
d. within 500 metres of Rose Shymansky Memorial Park. Harry Dayboll Park, Westdale Park and Maple Park are within the 1-kilometer radius of the Subject Lands.
The area in which the Subject Lands are located features a transition between residential uses to the northeast and highway commercial uses southwest along Main Street West, and along the north side of Main Street West. Main Street West is designated as a Regional Road.
Official Plan Amendment
7Mr. Auspitz provided that:
the Subject Lands are designated Highway Commercial as per Schedule A - Land Use Plan of the City’s Official Plan. The Highway Commercial designation permits a variety of commercial uses primarily catering to the travelling public.
The OPA will amend the City Official Plan to redesignate the Subject Lands to a Site-Specific Highway Commercial designation.
Zoning By-Law Amendment
8The Tribunal was informed that “The Subject Lands are zoned Highway Commercial (HC) as per Schedule A7 of City’s Zoning By-law 6575/30/18”. As an apartment building is not a permitted use within the HC zone, the ZBA is required. The ZBA will propose to rezone the Subject Lands to Mixed Use (MU) Zone.
9The proposal requires relief for the following provisions outlined in Section 21.3 of the City’s Zoning By-law:
| Provision | Required | Proposed |
|---|---|---|
| Minimum Front Yard | 9 metres | 4.15 metres |
| Minimum Interior Side Yard abutting | 7.5 metres or half the height of a Residential Zone building, whichever is greater | 5.0 metres |
| Minimum Rear Yard | 4.5 metres | 3 metres |
| Maximum Height | 11 metres | 20 metres |
10The proposal requires relief for the following provisions identified in Section 3 of the City’s Zoning By-law:
| Section | Provision | Required | Proposed |
|---|---|---|---|
| 3.1.1 | Parking Requirement for Apartment Building | 1.25 spaces per unit (95 x 1.25 = 118.75) | 132 spaces for all uses |
| 3.1.2 | Parking Requirement for Animal Care Establishment, Convenience Store, Day Care, Office, Personal Service Business, Restaurant (Fast Food), Restaurant (Full-Service), Restaurant (TakeOut), Service Commercial, Studio | 1 space per 20 square metres gfa, (326sqm/20= 16.3) | 132 spaces for all uses |
| 3.3 | Standard Parking Space Obstructed on One Side | 3.0 metres x 5.2 metres | 2.6 metres x 5.2 metres |
| 3.7 | Ingress and Egress Standards; Minimum unobstructed driveway width | 7.5 metres | 6 metres |
| 3.10 | Loading Space Requirements | No loading space shall be located within a required yard that abuts a Residential Zone | One loading space is permitted in a rear yard which partially abuts a Residential Zone |
| 3.11.1 | A landscape buffer shall be provided between the edge of any parking area with more than 100 spaces and a lot line abutting a residential zone | 4 metres | 3 metres |
| 3.11.2 | Minimum Landscaped Open Space within Parking Areas | Landscape open space equal to 10% of the parking area shall be required within all parking areas with 100 or more spaces | No landscaped open space is required within parking areas, |
Settlement with the City
11The Tribunal was informed that in order to resolve the concerns over the Applications, the Applicant will agree to provide:
a. additional visual screening by planting a mature cedar hedge screen along the boundary line it shares with two adjoining lots; or
b. a 1.8 metre-high wall along the north side of the second story of the parking structure to prevent any overlook and to reduce noise.
12The Tribunal was further informed that the Settlement will be implemented at the site plan approval stage.
13Mr. Auspitz opined that the Settlement proposal;
Has regard for matters of provincial interest under Section 2 of the Planning Act (“Act”),
are consistent and do not conflict with the Provincial Policy Statement (“PPS”) 2020 and 2024, particularly Policy 1.4.3 which encourages the provision of a mix of housing options and densities to meet market-based housing needs.
Conforms with the Growth Plan and in particular Policy 2.2.1(4), which encourages the achievement of complete communities.
Conforms to the Niagara’s Official Plan.
Conforms to subject for approval of the OPA to the City’s Official Plan.
Is appropriate for the Subject Lands, represents good planning, and is in the public interest.
FINDINGS
14Based on the uncontradicted expert opinion of Mr. Auspitz and a thorough review of the relevant provisions of the Act, the PPS, and Niagara’s Official Plan, the Tribunal decisively finds that the proposed Settlement of the Official Plan Amendment (OPA) and Zoning By-law Amendment (ZBA) will significantly enhance the diversity of housing options in the city by promoting necessary intensification within the Built-Up Area. The Tribunal is assured that the proposed development will include robust privacy measures and effective noise prevention screening, as desired by the City. This mixed-use building is poised to provide residents with the invaluable opportunity to live and work in the same location. Moreover, the surrounding area boasts numerous amenities that undeniably contribute to the development of complete communities.
15The Tribunal acknowledged that the proposed Settlement would encourage intensification within the defined Built-Up Area, contributing to the creation of complete communities by providing a wide range of housing options. The proposed building's height and setbacks are designed to minimize impacts on neighboring dwellings, positioned near the street with commercial uses along the frontage. The proposed building will help create a vibrant streetscape.
16The Tribunal accepted the Applications and the proposed Settlement, which would enhance the diversity of the City's housing stock by providing apartment units within mixed-use buildings. The Applications would also promote the development of complete communities through intensification and the inclusion of various housing types within the Built-Up Area.
17Furthermore, the Applications would enable the development of apartment units of various sizes in an area predominantly occupied by single-detached homes, thereby enhancing the diversity of housing densities and types.
18The Tribunal is satisfied that the proposed OPA and ZBA represent an efficient use of land, resources, and infrastructure.
19The Tribunal finds that the Settlement reached by the Parties is fair and reasonable, and that the resulting OPA and ZBA represent sound planning in the public interest. The Tribunal commends, the Parties for their collaborative efforts and productive discussions in reaching this Settlement.
ORDER
20THE TRIBUNAL ORDERS THAT the appeal is allowed and the Official Plan for the City and Region of Niagara is approved in the form appended in Attachment 1 to this Order.
21THE TRIBUNAL ORDERS THAT the appeal is allowed and directs the City to amend By-law 6575/30/18 as set out in Attachment 2 to this Order.
“Carmine Tucci”
CARMINE TUCCI
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