Abbotts v Blue Mountains Town

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE: June 10, 2022

CASE NO(S).:

OLT-22-002269

(Formerly PL210156)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.

990, c. P.13, as amended

1

Applicant and Appellant:

Subject:

Tammy Abbotts

Application to amend Zoning By-law No.

2

018-65 - Refusal or neglect of County

of Grey to make a decision

Residential One (R1-1)

Residential Two (R2)

To permit the creation of lots for 22

semi-detached dwellings

Lots 35-39, SW Side of Bay Street

Town of The Blue Mountains

P2832

Existing Zoning:

Proposed Zoning:

Purpose:

Property Address/Description:

Municipality:

Municipality File No.:

OLT Case No.:

OLT-22-002269

Legacy Case No.:

PL210156

OLT Lead Case No.:

Legacy Lead Case No.:

OLT Case Name:

OLT-22-002269

PL210156

Abbotts v. Blue Mountains (Town)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O.

990, c. P.13, as amended

1

Applicant and Appellant:

Subject:

Tammy Abbotts

Proposed Plan of Subdivision - Failure of

County of Grey to make a decision

To permit the creation of lots for 22

semi-detached dwellings

Purpose:

Property Address/Description:

Municipality:

Municipality File No.:

Lots 35-39, SW Side of Bay Street

Town of The Blue Mountains

42T-2019-02

2

OLT-22-002269

OLT Case No.:

OLT-22-002272

PL210152

OLT-22-002269

PL210156

Legacy Case No.:

OLT Lead Case No.:

Legacy Lead Case No.:

Heard:

May 24-26, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Tammy Abbots (“Appellant”)

Al Burton

Town of The Blue Mountains (“Town”)

County of Grey (“County”)

Leo Longo

Errol Treslan

Grey Condominium Corporation No. 11

Samantha Lampert

(“GCC11”)

Grace O’Brien

Harbour West Residents Group Inc. (“HWRG”) Harry Burkman

DECISION DELIVERED BY T. PREVEDEL AND INTERIM ORDER OF THE

TRIBUNAL

INTRODUCTION

[

1]

The matter before the Tribunal is an appeal by Tammy Abbots (“Appellant”)

under subsections 34(11) and 51(34) of the Planning Act with respect to the Town

of The Blue Mountains’ and the County of Grey’s failure to deal with the

Appellant’s proposed application for a Zoning By-law Amendment and associated

Draft Plan of Subdivision within the prescribed timeframe.

[

2]

The lands are legally described as Lots 35-39, Southwest Side of Bay

Street, Former Town of Thornbury, Town of The Blue Mountains, County of Grey.

The subject lands consist of a 1.01-hectare site that is currently vacant and is

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OLT-22-002269

designated as "Community Living Area" in the Town of The Blue Mountains

Official Plan ("Town OP").

AREA CONTEXT

[

3]

The subject lands are located in the Northwest quadrant of Thornbury,

between existing residential uses along Lakeshore Drive and Huron Street on the

East side of Lansdowne Street North, and South of the unopened Bay Street West

road allowance. The subject lands are vacant lots with frontage on Lansdowne

Street North and the unconstructed road allowances of Bay Street West and

Victoria Street North.

[

4]

Under the Town's OP, the subject lands are currently designated

“Community Living Area". They are currently zoned R-1 and are within holding

zone areas H3 and H4A within the Town’s Zoning By-law 2018-65.

THE SETTLEMENT PROPOSAL

[

5]

The Tribunal received, on May 16, 2022, executed Minutes of Settlement

between the Appellant, the Town, the County and GCC11. The Parties also

submitted a draft Zoning By-Law and a revised Draft Plan of Subdivision along

with Conditions of Draft Plan Approval, which were attached to the Minutes of

Settlement.

[

6]

The revised proposal reduces the number of proposed lots from 22 to 20,

consisting of 4 single detached lots and 16 semi-detached lots. The subject lands

have a total area of approximately 1.01 hectares, resulting in a proposed density

of approximately 20 units per gross hectare.

[

7] The proposed units will have “as of right” zoning permissions for accessory

apartments under the Zoning By-law.

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OLT-22-002269

[

8]

The Harbour West Residents Group Inc. (“HWRG”) has not consented to

this proposed settlement.

PRELIMINARY MATTERS

[

9]

The Tribunal received and marked the following documents as Exhibits to

the Hearing:



Exhibit 1 – Joint Document Book

Exhibit 2 – Minutes of Settlement dated April 18, 2022

Exhibit 3 – Township of The Blue Mountains (“TBM”) Supplementary

Document Book



Exhibit 4 – HWRG Supplementary Document Book

Exhibit 5 – Agreed Statement of Facts (“ASF”)

Exhibit 6 – TBM’s Cross-examination documents for Scott Taylor

Exhibit 7 – HWRG’s Witness Examination Book

Exhibit 8 – Scott Taylor’s Acknowledgement of Expert’s Duty

Exhibit 9 – HWRG Preliminary Matters

Exhibit 10 – Index for Visual evidence by HWRG

Exhibit 11 – Gordon Russell version of ASF, not signed

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OLT-22-002269



Exhibit 12 – Affordable Price Points in the Town of The Blue

Mountains, May 2022

[

10] The Tribunal dealt with several technical objections raised by Mr. Burkman,

counsel for the HWRG, prior to the start of the evidentiary portion of the Hearing:

A. Inclusion of Tabs 5, 6 and 7 in the Joint Document Book (Exhibit 1)

[

11] Mr. Burkman questioned which applications were actually before the

Tribunal at this point in time, as the proposed development has undergone some

revisions to reach a settlement. He submitted that Tabs 5, 6 and 7, which contain

the revised Draft Plan and Zoning By-Law with Schedules, should be removed as

these documents have not been formally submitted to the Tribunal.

[

12] Mr. Burton, on behalf of the Appellant, submitted that Mr. Burkman was not

familiar with the normal planning process before the Tribunal, and that it is often

the case where Parties work together in advance of a Hearing to scope issues and

make revisions in an effort to reach a settlement and reduce Hearing time before

the Tribunal.

[

13] This submission was supported by Messrs. Longo and Treslan, on behalf of

the Town and County, respectively.

[

14] Upon consideration of the matter, the Tribunal agrees with the settling

Parties that Mr. Burkman’s objection has no merit and that Tabs 5, 6 and 7 are to

remain in the Joint Document Book.

B. Should the Applications be considered complete?

[

15] Mr. Burkman questioned whether the applications before the Tribunal

should be deemed complete. He submitted that, as the proposed plan has

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OLT-22-002269

undergone several submissions, no additional background studies have been

submitted in support.

[

16] Mr. Burton disagreed with Mr. Burkman’s submission, stating that the

revisions to the plan have been minor in nature and undertaken in consultation

with the other Parties.

[

17] The Tribunal notes that the applications have been processed by both the

Town and County staff, resulting in a proposed settlement on consent of all Parties

except HWRG. There is no question that the applications should be considered

complete.

C. Request to add some additional issues to the Issues List

[

18] Mr. Burkman, on behalf of HWRG, requested that two additional issues be

added to the Issues List: namely subsection 24 of the Planning Act and Policy

D2.3.1 of the Town’s OP, both relating to various aspects of public works and road

classifications.

[

19] The other Parties objected to this request, stating that no formal Motion has

been brought forward, no evidence relating to these issues has been submitted,

and HWRG has been silent regarding the Procedural Order (“PO”) since its July

2

3, 2021, issuance.

[

20] The Tribunal notes that paragraph 5 of the PO explicitly states that there

will be no changes to the Issues List unless the Tribunal permits. There does not

appear to be any merit in adding these two additional issues to the proceeding,

and the Tribunal notes that counsel for HWRG can cross-examine the Appellant’s

witnesses regarding these matters.

[

21] The request to add the two additional issues is denied.

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OLT-22-002269

THE HEARING

[

22] The Hearing of the appeal took place over the course of three days. The

conduct of the Hearing was governed by a Procedural Order issued on July 23,

021.

2

[

23] At the onset of the Hearing, it was agreed that the Appellant would call

evidence in support of the proposed settlement. It was also agreed that no other

Parties would call evidence, unless specifically requested to do so by the Tribunal

or as a necessary response to any issue raised by the non-settling Party, HWRG.

[

24] The Town and the Appellant also agreed that the Town would call evidence

in support of a request by the Town that the Appellant, without compensation,

would provide six accessory apartments to be offered as affordable housing, and

that the Appellant would offer the right of first refusal of the administration of such

units to The Blue Mountains Attainable Housing Corporation.

[

25] The Tribunal heard from 5 expert witnesses, on behalf of the Parties. The

land use planning and engineering witnesses were qualified to provide expert

evidence in their respective fields, as follows:

Appellant’s Witnesses

Kristine A. Loft - land use planning

Alexander Fleming – transportation engineering

George Cooper – civil engineering

County’s Witness

Scott Taylor – land use planning

HWRG Witness

Gordon H. Russell – land use planning

[

26] Mr. Burton made submissions to the Tribunal, expressing his concern that

the witness for HWRG should not be qualified, in his opinion, he was not providing

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OLT-22-002269

independent expert evidence but rather acting as an advocate for HWRG. He

made particular reference to Mr. Russell’s reliance on the Thornbury Density and

Intensification Study Report, dated February 2022 in his evidence, which he

admitted would be advantageous to his client.

[

27] The Tribunal agrees that, in accordance with the “Clergy Principle”, the

above-noted study, which has no status at this point, has no relevance and should

not be relied on as a planning instrument during this Hearing.

[

28] Notwithstanding Mr. Burton’s concerns, the Tribunal feels that not qualifying

Mr. Russell as an expert witness would be prejudicial to HWRG’s case in these

proceedings. The Tribunal qualified the witness on the condition that he makes no

reference to the Intensification Study during his testimony.

[

29] The Town called two witnesses regarding the issue of affordable housing:

Alar Soever, Mayor of the Town and Robert Sampson, a Councillor with the Town

and Chair of the Blue Mountain Attainable Housing Corporation.

[

30] Ms. Lampert, on behalf of GCC11, stated that her client was one of the

settling Parties and would not be taking an active role in these proceedings. Ms.

Grace O’Brien, co-counsel for GCC11, would monitor the balance of the Hearing.

[

31] As noted earlier in this Decision, the Appellant has reached a settlement

agreement with the Town, the County and the GCC11.

[

32] The HWRG have not consented to the settlement agreement and are

calling a case which centres around the concerns of the neighbours that the

proposed development is not compatible with the existing built form, and does not

conform to the Town’s OP.

[

33] The broader issue, and the one which was most contested, was the “last

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OLT-22-002269

minute” request by the Town to add a condition requesting that the Appellant

provide six accessory units as affordable housing units. This issue will be

discussed separately later in this Decision.

PLANNING EVIDENCE

[

34] Mr. Taylor provided the Tribunal with a chronological overview of the

background to this development starting in late 2019 when the Town and County

received a plan of subdivision application to create 22 new residential dwellings

(11 semi-detached lots) along with a Zoning By-Law amendment application.

[

35] He stated that the five Parties to the Hearing have met to discuss issues

and potential settlement options. The most recent proposal is a revised plan of

subdivision to create four single detached residential dwellings and 16 semi-

detached dwellings. HWRG put forth a revised plan of subdivision proposal to

create 11 single detached residential dwellings and six semi detached dwellings.

In both proposals, the new residential units would gain access from an extension

of Bay Street West to be serviced by municipal water and sewer services.

[

36] County staff brought forward an in-camera report to the County Committee

of the Whole on March 24, 2022, seeking direction on the proposed settlement. At

that meeting, the staff recommendation was supported by the Committee.

[

37] The proposed conceptual plan of subdivision, which forms part of the

Minutes of Settlement, is presented graphically in the figure below:

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OLT-22-002269

THE ISSUES

[

38] The Tribunal must have regard to matters of provincial interest under the

Planning Act and be consistent with the Provincial Policy Statement, 2020 (PPS)

when rendering decisions on planning applications. The Tribunal must also ensure

that the proposal conforms to the County’s OP, the Town’s OP, is good planning

and is in the public interest.

[

39] Despite the settlement agreement amongst the Appellant, Town, County

and GCC11, there are twelve (12) issues raised by the HWRG which remain in

dispute. HWRG has refused to remove any of these issues and has not called any

engineering evidence.

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OLT-22-002269

PROVINCIAL POLICY STATEMENT

[

40] The PPS provides policy direction on matters of provincial interest related to

land use planning and development in Ontario. This PPS was issued under

section 3 of the Planning Act and came into effect on May 1st, 2020.

[

41] Although consistency with the PPS was not flagged in the Issues List, both

County and Appellant expert witnesses have provided comments.

[

42] Mr. Taylor submitted that a key goal of the PPS is directing new growth to

serviced settlement areas and promoting the vitality of such settlement areas

through re-development, infill and intensification. The subject lands have been

primarily designated for residential growth and are within a serviced settlement

area.

[

43]

Ms. Loft opined that the approval of the proposed Draft Plan and Zoning

By-law Amendment to permit single and semi-detached units on the subject lands

is consistent with the PPS and specifically Section 1.1.1 – “Managing and

Directing Land Use to Achieve Efficient and Resilient Development and Land Use

Patterns”.

[

44]

She stated that the proposal would accommodate new population growth

on vacant land in an area that can be serviced and is within a defined settlement

area. She also opined that the proposal would incorporate an appropriate range

and mix of residential uses in a compact form to meet the long-term needs of the

community.

[

45] Ms. Loft submitted that the proposal would assist the Town in meeting its

intensification and density targets set by the County’s OP.

[

46]

Ms. Loft further opined that the proposal would promote active

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OLT-22-002269

transportation by connecting the proposed development to the surrounding

neighborhood with trail connectivity.

[

47]

In conclusion, Ms. Loft opined that the proposal is consistent with the PPS.

48] This opinion was echoed by Mr. Taylor, the County’s witness.

49] Mr. Russell did not address the PPS in his written or oral testimony.

50] The Tribunal agrees with Ms. Loft that the proposed development is

consistent with the PPS.

Issue One: Does the proposed development have appropriate regard to

sections 34, 36 and 51(24) of the Planning Act?

[

51] Ms. Loft provided the Tribunal with a thorough overview of subsection

1(24) of the Planning Act, which outlines matters to be considered when

considering Draft Plans of Subdivision.

5

[

52] She opined that the proposed development is not premature and is in the

public interest, as it is located within the settlement area of the Town and is

designated and zoned for residential development. Furthermore, she opined that

the proposed development assists in implementing the matters of provincial

interest outlined is subsection 2 of the Planning Act.

[

53] She also stated that the subject lands are ideally suited for the proposed

development, as they are within the settlement area and are located within the

built-up area of Thornbury. The subject lands have access to existing municipal

water and sewage services and transportation infrastructure. The standard H41

holding symbol, which remains on the subject lands, is subject to municipal water

and sanitary sewage capacity being made available to service the development.

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OLT-22-002269

[

54] Ms. Loft opined that the proposed development conforms to the County’s

OP and the Town’s OP and that the development is compatible with adjacent

development.

[

55] Ms. Loft also stated that the proposed draft plan has been designed with

consistent frontage, taking into consideration the elongated shape of the site along

the Bay Street West road allowance. This plan will allow for efficient pedestrian

and vehicular movements. Additionally, the proposed development has been

designed to an appropriate density to allow for the efficient use of land.

[

56] Mr. Taylor, representing the County, was in total agreement with the

professional opinions expressed by Ms. Loft.

[

57] Mr. Russell, on behalf of HWRG, submitted that he formalized his opinions

in a Planning Review report dated February 8, 2022, concluding that there was

land use planning justification to raise concerns with the degree of conformity to

the Town’s OP, and if not revised, an OP Amendment would be required

concerning non-conformity to the Town’s Infill Development policies and the

reclassification of the unopened road allowances to a local road classification.

[

58] Mr. Russell was consistent in his opinion that an OPA was required to

satisfy certain subsections of the Town’s OP and, in particular, to deal with the re-

classification of unopened road allowances to local roads.

[

59] Mr. Russell’s evidence was based on his opinion that the infill development

should have larger lot sizes, larger frontages and consequently fewer lots. He

submitted two alternate proposals for the plan of subdivision to support this.

[

60] The Tribunal notes that the Town’s OP should be read as a whole, not just

specific paragraphs. Section B3.1.5.1 of the Town’s OP states that, “although

existing residential neighbourhoods are intended to retain their existing character

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OLT-22-002269

with limited change, this does not mean that new housing must mimic the existing

character and built form”.

[

61] The Tribunal further notes that, if one were to accept the evidence of Mr.

Russell, the proposed infill would not meet the objectives of the County OP and

PPS with respect to efficient use of land.

[

62] On the basis of the witness statements submitted and oral testimony

presented by the land use planning experts, the Tribunal prefers the evidence of

Ms. Loft and Mr. Taylor and finds that the proposal has regard for sections 34, 36

and 51(24) of the Planning Act.

Issue two: Does the proposed development conform with the County’s OP, sections

3

.4.1, 3.4.1.1, 3.5, 4.2.5, 8.10, and 9.13?

[

63] Ms. Loft explained that the subject lands are designated as “Primary

Settlement Area” on Map 2A of the County’s OP.

[

64] They are located where full municipal services can be provided. The

proposal conforms to Section 3.3 Subsection 1) “Primary Settlement Areas” and

Section 3.4 “General Policies Affecting Settlement Area Land Use Types”

Subsection. 2) b) which ensures that new development does not conflict with the

surrounding development.

[

65] Ms. Loft also opined that the proposal conforms to Subsection 3) identifying

that local Official Plans and plans of subdivision shall ensure a proper and orderly

street pattern. The proposal conforms to Subsection 15) where the proposed

development is compatible with adjacent land uses. The proposal achieves the

Minimum Targets for Residential Intensification (Section 3.4.1),(Section 3.4.1

Subsection 1)).

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[

66] Ms. Loft submitted that the proposed development conforms to the “Primary

Settlement Areas” policies within Section 3.5 including Subsections 2), 5) and 6),

which she took the Tribunal to during her oral testimony.

[

67] Mr. Taylor took the Tribunal to Sections 3.4.1 and 3.4.1 Subsection 1) of the

County OP, which requires municipalities to promote intensification and

redevelopment, while mitigating impacts on neighbouring residential areas. A mix

of single detached and semi-detached dwellings does represent some additional

density in this neighbourhood, but it is in accordance with the required residential

density targets in Section 3.5 of the County OP. Semi-detached dwellings are

generally considered to be compatible with the neighbouring single detached and

condominium development in this area of Thornbury. Fencing and tree retention

has been included in the Minutes of Settlement to assist in addressing the

concerns of the neighbours.

[

68] Mr. Taylor advised the Tribunal that Section 3.5 of the County OP provides

policies for development of Primary Settlement Areas. Within “Primary Settlement

Areas”, the County OP generally defers to the detailed policies and provisions in

municipal Official Plans and Zoning By-laws. Section 3.5 Subsection 5) requires

new residential development in Thornbury to meet a minimum residential density

of 20 units per net hectare. This proposed plan of subdivision would achieve that

density. Section 3.5 Subsection 6) again references the compatibility of

intensification. Mr. Taylor stated that it is noteworthy that the County OP defines

'

compatible' as follows:

"Compatible means the development or redevelopment of uses

which may not necessarily be the same as or similar to the

existing development but can coexist with the surrounding area

with limited impacts.''

[

69] This was confirmed in the written and oral testimony provided by Ms. Loft.

70] During the County and Town’s Planning review, neither the County planning

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OLT-22-002269

staff, nor the Town planning staff, have ever referred to the ‘must have’

Intensification Strategy required by the County’s OP.

[

71] Ms. Loft advised that Accessory Apartments are permitted in each of the 20

units. These units would be located within Thornbury with appropriate levels of

service. The four single detached units can have an Accessory Apartment in either

the primary residence or within an accessory structure. It is anticipated that, with

the depth of the lots, homeowners may wish to utilize these policies for Accessory

Apartments within an accessory structure. The single detached units would allow

for four accessory apartments. The semi-detached units are each permitted an

Accessory Apartment which would permit up to 16 accessory apartments. It is

anticipated that these units would be offered at market value by the homeowners

and could also provide a homeowner with an opportunity to house an aging parent

or family member. (Section 4.2)

[

72] Ms. Loft also advised that the Accessory Apartments are expected to

provide rental apartments which would have a range in size (bedrooms) and would

provide a range of housing type in this area. (Section 4.2.1 and 4.2.2). The

Accessory Apartments could be offered as rental units thereby increasing the

number of rental units in the municipality by an upwards limit of 20 units. The site

is suitable to accommodate rental housing and is within a central location and

close proximity to services. The development is not by way of a condominium.

(Section 4.2.2).

[

73] Ms. Loft opined that the proposed Draft Plan conforms to the Plans of

Subdivision and Condominium policies (Section 9.13) including Subsection 1) a)

thru n) and Subsections 2, 3, 4, 5 and 6) which she took the Tribunal to in her oral

testimony.

[

74] Ms. Loft concluded by opining that the proposal conforms to the County’s

OP.

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[

75] Mr. Russell, in his cross examination, agreed that the proposed

development conformed with the County OP.

[

76] However, he opined that the County OP directs municipalities to undertake

a mandatory Intensification Strategy.

[

77] Without the mandatory Intensification Strategy, he submitted that it was

unknown whether the subject lands would qualify as lands for which higher density

development would be appropriate and whether the subject lands should be

directed to accommodate intensification development.

[

78] The Tribunal notes that this Intensification Strategy is currently a work in

progress, and as noted earlier in this decision, does not apply to this planning

application.

[

79] On the basis of the written and oral evidence provided by the expert

witnesses, the Tribunal prefers the evidence provided by Ms. Loft and Mr. Taylor

and finds that the proposal conforms to the County’s OP.

Issue Three: Does the proposed development conform with the Town’s OP?

[

80] Ms. Loft advised the Tribunal that the subject lands are designated

Community Living Area” (“CLA”) within Schedule A-2 of the Town’s OP.

“

Furthermore, the development has been considered “Intensification” within the

policy framework.

[

81] She explained that permitted uses in the CLA (Section B3.1.3) include

single-detached dwellings, semi•detached dwellings, duplex dwellings, local

convenience uses, home occupations, residential intensification uses, nursing

homes and senior citizen retirement homes. The proposed uses are permitted

uses.

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[

82] She opined that the proposed residential use is contemplated in the Town’s

OP and the use of the lands for the proposed density is appropriate for the area,

given the location and surrounding area. The proposed development conforms to

Section A2 by providing a land use form which provides a range of housing that is

respectful of the character of the community and the established neighbourhood,

while making efficient use of infrastructure.

[

83] Ms. Loft further explained that the permitted density within the CLA is 10 to

5 units per gross hectare for singles and 15 to 35 units per gross hectare for semi

detached. Based on a total of 20 lots, the development would have a density of

8.69 units per gross hectare and a density of 24.07 units per net hectare.

2

1

[

84] Ms. Loft stated that the development would allow for accessory apartments

in all units which could be provided for rent. The future owners of the dwellings

could participate in housing programs that support appropriate housing

development as it relates to either the primary dwelling unit or accessary

apartment.

[

85] Ms. Loft opined that the proposed building heights will reflect patterns of

existing zoning provisions for height. As well, similar lot coverages to adjacent

housing are based on the existing range of lot coverages in the area and the

zoning provision requirements for the proposed zones. She opined that this is

considered infill development, and, in her professional opinion, it complies with

section B3.1.5.2 of the Town's OP.

[

86] Mr. Russell, in his written and oral testimony, focussed on the mandated

requirement for the Town to develop an Intensification Strategy report in order to

comply with the County’s OP. In his opinion, the proposed development should be

considered premature until such time as this plan has been conducted.

[

87] Mr. Russell also expressed concerns that the proposed development was

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not compatible with the adjacent neighbourhood, in terms of lot size, building

heights and setback requirements.

[

88] Mr. Taylor submitted that County staff would generally defer to the planning

opinion of Town staff with respect to Town OP conformity. County staff would also

note that the Appellant's planner as well as planners for the Town and the Condo

Corporation have also offered their assessment of Town OP conformity.

[

89] Mr. Taylor did not agree with the HWRG opinion that a Town OPA may be

needed based on the new streets serving this subdivision. Should that opinion be

accepted, it could mean that all new subdivisions opening new streets or

extending streets would require an OPA. County staff do not believe this was the

intent of the Town OP, and certainly has not been interpreted in this manner in the

past.

[

90] The Tribunal notes that Town staff, in reaching a settlement agreement with

the Appellant, are also of the opinion that the proposal conforms to the Town’s OP.

[

91] Based on the evidence proffered by the expert witnesses, the Tribunal finds

that an OPA is not required to deal with the matter of the unopened road

allowances. The Tribunal prefers the evidence put forward by the Appellant, Town

and County planners and finds that the proposed development is in conformity

with the Town’s OP.

Issue Four: Is the proposed Zoning By-Law Amendment appropriate?

[

92] Ms. Loft stated that the effect of the proposed Zoning By-law Amendment is

to permit the development of the subject land for 20 residential units, including a

mix of single detached units and semi-detached units, having frontage on an open

and maintained municipal road.

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[

93] She provided the Tribunal with a detailed review of the proposed 20 lots,

their frontages and lot areas.

[

94] Ms. Loft also explained that there is a holding symbol included on all zones

which provides that the condition of removal shall be the execution of a subdivision

agreement with the Town, registration of a plan of subdivision and that municipal

water and sanitary sewage capacity has been confirmed as available to service

the development.

[

95] She also explained that the current zoning includes a holding H3 symbol,

which is proposed to be lifted upon the completion and acceptance of a D4 study.

[

96] Mr. Russell advised the Tribunal that part of the west half of the subject

lands are zoned holding H3, being in proximity to a former landfill site. He agreed

that the Appellant had submitted a Ministry of the Environment D4 assessment

dated November 2019 prepared by Peto MacCallum Ltd. and further peer

reviewed on July 23, 2020, by Golder & Associates. Both reports concluded that

there is no concern of significant adverse effects from the landfill on the proposed

residential development at the site. The Tribunal notes that the issue of the D4

study has already been addressed by the other expert witnesses and considers

this issue to be moot.

[

97] Mr. Russell also expressed his concerns with respect to zone standards,

and details regarding maximum lot coverage, lot widths, setbacks and building

heights.

[

98] Mr. Taylor was in agreement with the evidence provided by Ms. Loft. He

opined that this matter had been discussed in the Planning Act review and County

staff would generally defer to the planning opinion of Town staff.

[

99] Mr. Taylor further opined that the proposed zoning amendment would

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appear appropriate in this regard.

[

100] The Tribunal notes that the Town and County planning staff, in reviewing

and approving the proposed development, have taken into consideration the

required standards in the Zoning By-Law. Mr. Russell, in his opinion evidence,

does not agree with the opinions expressed by the other experts.

[

101] However, having considered the evidence presented by Ms. Loft and Mr.

Taylor, the Tribunal prefers this over the opinion evidence of Mr. Russell.

[

102] The Tribunal finds that the proposed Zoning By-Law Amendment is

appropriate.

Issue Five: Is the proposed stormwater management approach appropriate for

controlling water on-site and are there improvements needed in the off-site outlets to

the Bay?

[

103] Mr. Russell, in his witness statement, did not express a concern regarding

stormwater management, he merely stated that, in order to conform to the Town’s

OP, Section C5, the proposed design needs to be approved by the Town.

[

104] Mr. Cooper, on behalf of the Appellant, provided the Tribunal with a detailed

analysis of the stormwater management design undertaken for this development.

He made reference to the Functional Servicing and Stormwater Management

Report dated October 2019, which was reviewed and approved by Town and

County staff.

[

105] Mr. Taylor noted that there are recommended draft plan conditions which

speak to finalization of a Stormwater Management Plan. Mr. Taylor further stated

that the Grey Sauble Conservation Authority staff had not raised any stormwater

concerns with respect to this development

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[

106] The Tribunal accepts the expert evidence provided by Mr. Cooper with

respect to stormwater management.

Issue six: Does the proposed servicing meet Town Engineering Standards and is there

water and wastewater capacity available?

[

107] Mr. Russell opined that, in his professional opinion, until such time that

Council is prepared to formally allocate both municipal water and sewer capacity

to this project, a condition within the Holding provision of the Zoning By-law

Amendment should be applied.

[

108] Ms. Loft stated that the proposed development will be serviced with

watermain and sanitary sewer via connections to the existing Municipal

infrastructure adjacent to the site. The proposed internal servicing is in

conformance with the Town’s Engineering Standards. Further details are provided

in the 2019 Functional Servicing & Stormwater Management Report prepared by

Crozier, which was reviewed by the Town and County.

[

109] The Town’s annual water and wastewater capacity assessment was

referenced in the 2019 Functional Servicing and Stormwater Management Report,

which indicated that capacity was available for the number of units proposed. As is

standard practice within the Town, confirmation of available capacity in the water

and wastewater systems will be a condition of draft approval.

[

110] Mr. Taylor explained to the Tribunal that the draft plan conditions and a

holding symbol H41 are being applied to this development to ensure servicing

capacity is in place prior to construction of the dwellings.

[

111] The Tribunal accepts the evidence that the proposed servicing meets Town

engineering standards, and that water and wastewater capacity will be available.

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Issue seven: Is/does the proposed road design:

a.

premature to approve until such time as final determination of the

status of the portions of the unopened road allowance known as Bay

Street West;

b.

c.

d.

e.

appropriate and represent good transportation planning;

consistent with Town Standards;

compatible with adjacent developments; and

accommodate for the movement of servicing vehicles?

[

112] Mr. Russell opined that an OPA is required to be approved to reclassify the

existing unopened road allowances road to a local road classification. His opinion

was that additional mitigation design requirements would likely emerge from this

public process.

[

113] Mr. Russell concluded by stating that the final design of the proposed road

is premature until the Town has approved the required OPA concerning

reclassification of the road type.

[

114] Mr. Fleming, on behalf of the Appellant, provided the Tribunal with a

thorough and comprehensive review of the proposed road design, making

reference to his Traffic Opinion letter. The road design extends the local road grid

system, provides for active transportation with sidewalk that links to the external

system and, in his professional opinion, will not cause traffic operations or safety

concerns.

[

115] Mr. Fleming also provided a critique of the two proposed draft plan

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concepts prepared by Mr. Russell, demonstrating how the road and cul-de-sac

layout was sub-standard from a turning radius and intersection offset point of view.

[

116] Mr. Fleming provided evidence that the proposed road design will facilitate

the movement of waste collection vehicles, snow clearing and emergency

vehicles.

[

117] The Tribunal notes that a consistent theme throughout Mr. Russell's witness

statement and oral testimony is the contention that the construction of a road in an

unopened road allowance constitutes a change of road classification which would

require an OPA. However, County and Town staff, through their approval, have

made it quite clear that this is not required.

[

118] Based on the expert evidence proffered by Mr. Fleming, the Tribunal finds

that the proposed roadway design is appropriate and represents good

transportation planning.

Issue eight: If it is determined that the proposed road network is appropriate,

what is the appropriate terminus treatment at the Bay Street West and

Victoria Street West intersection, and should implementation of this

treatment be imposed as a condition of approval?

[

119] Mr. Fleming explained that the Bay Street West and Victoria Street

intersection will consist of two approaches, those being the south (Victoria Street)

and the west (Bay Street West). There will be no east nor north approaches. As

there are only two approaches to the intersection, the appropriate treatment would

be a horizontal curve. Intersection controls such as stop or yield signs are not

necessary as there are no conflicting traffic flows, such as a left turn across an

oncoming lane. As a horizontal curve is the only viable treatment, it is not

necessary for it to be imposed as a condition of approval.

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[

120] The Tribunal notes that, although this issue was added at the request of the

HWRG, Mr. Russell had no comment on this matter except to confirm that the

Official Plans promote grid pattern road design as the preferred road system.

Issue nine: Are the tree removal and retention on-site and in the abutting

road allowances appropriate and in the public interest?

[

121] Mr. Taylor submitted that having open and connected streets is in the public

interest. While there will be limited tree retention available in the road allowances,

a tree protection block is being proposed. Furthermore, Vegetation Assessments

and Vegetation Management Plans are being required through draft plan

conditions 24 and 25. The proposed Minutes of Settlement further states that:

“

The Applicant agrees that any augmentation of the tree protection

area in paragraph 6 above may be further identified in the

Subdivision Agreement and shall be at the Applicant's cost"

[

122] Ms. Loft explained that a Tree Preservation Block has been proposed within

the unopened road allowance of Bay Street West. In order to achieve this, the

proposed roadway has been pushed further south and appropriate land

dedications have been provided in the Draft Plan of Subdivision.

[

123] Based on the witness statements and oral testimony provided by the

Appellant’s and the County’s witnesses, the Tribunal is satisfied that the proposed

tree removal and tree retention on site and in the unopened road allowance is

appropriate and in the public interest.

Issue ten: Does the current proposed 2.5 metre landscape buffer sufficiently

mitigate undue impacts to neighbouring landowners? Are any alternative or

additional buffering or conditions of draft plan approval required to ensure

no light, noise and traffic impacts are suffered by adjacent landowners,

including but not limited to, tree retention, fencing and setbacks?

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[

124] Ms. Loft explained that the 2.5 m landscape buffer previously contemplated

has been revised and a tree preservation area varying between 0.0 and 9.0 m is

proposed. The tree preservation area will begin approximately at the extension of

Lot 6 and reach a maximum opposite the most easterly lot, Lot 20.

[

125] Mr. Fleming opined that the proposed development will not result in light,

noise and traffic impacts to adjacent landowners, and that a tree preservation area

or landscape buffer) is not required for the purposes of mitigation, notwithstanding

(

it is being proposed for tree preservation purposes. The rationale for this opinion is

as follows.

[

126] The projected volumes of vehicle trips are low and are not associated with

traffic operational issues at the boundary road network nor with the need for

roadway network improvements. Accordingly, it is Mr. Fleming’s opinion that there

will be no discernable traffic impacts to either adjacent landowners or the wider

community.

[

127] The reference to the 2.5 m landscape buffer refers to an older version of the

proposed draft plan of subdivision. With the tree protection block now being

proposed, it means that for some of the lots fronting onto Lakeshore Drive, there

will be greater than 2.5 m of buffering. There is a privacy fence being proposed for

the rear yards of 3 lots on Lakeshore Drive as well as abutting the rear yards of

the Condominium Corporation.

[

128] The proposed lots are quite deep with approximately 47 m of depth for the 3

single detached lots on Lansdowne Street North and 40 to 48 m of depth for the

lots on the Bay Street West extension. This should provide adequate separation

between the new single and semi-detached dwellings which would share a side

yard or rear yard with those lots fronting onto Huron Street West.

Issue eleven: Does the proposed development contain sufficient details

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about the potential accessory units in order to determine the impacts on

traffic safety and operations, and what mitigation measures are required to

address any potential adverse transportation and parking impacts for

neighbouring properties?

[

129] Ms. Loft confirmed that any future Accessory Residential Units will be

required to comply with Town zoning and engineering standards, as it applies to

setbacks, parking, servicing connections, and entrances onto a Town street. While

Accessory Residential Units would be permitted in each of the 20 residential units

being proposed, County's staff's experience is that not all landowners will

construct them. In more recent residential developments across the County, staff

have not seen a huge uptake in Accessory Unit construction, and often less than

3

0% of the dwellings contain an Accessory Unit. County staff do not see the

potential for Accessory Units to have any undue impacts on parking or traffic

operations here. Particularly now that the streets are no longer proposed as one•

way streets, staff see little potential for heavy traffic volume impacts even if each

of the 20 residential dwellings had an Accessory Unit.

[

130] Mr. Fleming submitted that the vehicle trips generated from Accessory Units

at some or all of the residential dwellings will be less than that forecast in the

Traffic Opinion Letter for the residential units themselves. The maximum total

volume of trips, if all of the residential dwellings incorporated accessory units

would be 22 two-way a.m. trips and 30 two-way p.m. trips. This volume of trips is

still considered low and would not result in discernable traffic impacts to either

adjacent landowners or the wider community.

Issue twelve: What are the appropriate conditions to impose upon any

approval of the proposed draft plan of subdivision, including any conditions

and clearances regarding contamination, leachate or methane?

[

131] This item has been discussed above, and there are no additional holding

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symbols needed as it pertains to the nearby former landfill site, and the former H3

holding symbol is proposed to be removed.

[

132] The Tribunal notes that both the Town and County staff have agreed upon

a settlement proposal with the Appellant, and there are conditions of draft plan

approval to be satisfied by the Appellant prior to entering into final approvals being

granted.

[

133] On this basis, the Tribunal finds that there are no additional conditions that

need to be imposed on the proposed draft plan of subdivision.

ANALYSIS AND DISPOSITION OF ISSUES LIST

[

134] The majority of the three-day Hearing was taken up with evidence brought

forward by the Appellant’s and County’s expert witnesses to address the twelve

12) issues on the Issues List, as requested by the HWRG.

(

[

135] The Tribunal notes that the consistent theme throughout Mr. Russell's

witness statement and oral testimony is the contention that the construction of a

road in an unopened road allowance constitutes a change of road classification

which would require an OPA.

[

136] Mr. Russell also brought forward his opinion evidence that the proposed

development was not compatible with the existing neighbourhood and, in the

Tribunal’s opinion, he “cherry picked” certain clauses and sub-clauses in the

Town’s OP and Zoning Standards to assist in supporting his submissions.

[

137] The Tribunal finds that the oral testimony provided by Mr. Russell was not

substantive and did not make a convincing argument as to why the proposed

development should not be approved. Counsel for the Appellant made a point of

stating that the HWRG concerns were, in essence, “much ado about nothing”.

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[

138] On the basis of the witness statements and oral testimony provided, the

Tribunal concludes that the proposed development is consistent with provincial

policies, conforms to the County’s OP, conforms to the Town’s OP, represents

good planning and is in the public interest.

THE TOWN’S REQUESTED CONDITION THAT THE APPELLANT PROVIDE

SIX ACCESSORY APARTMENTS TO BE OFFERED AS AFFORDABLE

HOUSING.

[

139] With the exception of the HWRG, all Parties agreed that the proposed

development had regard for matters of provincial interest, conformed to both the

County and Town Official Plans, represented good planning and was in the public

interest.

[

140] The only contested issue between the Town and the Appellant was the

recent request by Town Council for the Appellant to provide six accessory

apartments to be offered as affordable housing.

[

141] Both witnesses for the Town, Alar Soever and Robert Chapman, provided

the Tribunal with PowerPoint presentations outlining the Town’s concern regarding

the lack of affordable housing.

[

142] Mr. Soever, the Town’s Mayor, told the Tribunal that the lack of affordable

housing in The Blue Mountains is hampering the development of the community in

that the lack of any affordable housing is making it impossible for essential

workers to live in the Town. This includes, but is not limited to, police officers,

volunteer firefighters, young doctors, personal support workers, early childhood

educators, and other service industry workers.

[

143] He provided the Tribunal with real estate sales data reports and statistics

obtained from the Municipal Property Assessment Corporation.

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[

144] Mr. Soever also took the Tribunal to excerpts from the Planning Act, the

PPS, the County OP and the Town’s OP where references have been made for

the need to provide affordable housing in communities across Ontario.

[

145] Mr. Sampson told the Tribunal that in January 2014, The Blue Mountains

Attainable Housing Corporation (BMAHC) was established as a not-for-profit

corporation with majority control held by The Town to augment the supply of

healthy and sustainable ownership housing units in Town, with the goal of

providing housing to moderate income working individuals and families locked out

of the housing market.

[

146] Under cross-examination, both witnesses confirmed that the Town does not

have any formal policy in its OP to address affordable housing. The witnesses

also confirmed that no staff report had been brought to Council’s attention

regarding the provision of affordable housing, and in particular requesting

affordable housing units in this subdivision.

[

147] As noted by counsel representing the Town, this is an unprecedented

request. The witnesses, under cross-examination, admitted that two previous

subdivision applications had been approved by the Town without a request for the

provision of affordable housing.

[

148] Counsel for the Town submitted that there is a housing affordability crisis,

not only in the Town, but across all municipalities in Ontario. He made reference

to numerous excerpts from provincial policies requiring municipalities to provide for

an appropriate range and mix of housing options to meet projected market-based

and affordable housing needs of current and future residents.

[

149] Counsel for the Appellant did not disagree there was an affordable housing

crisis but questioned why this burden was being put upon his client by the Town,

at the “eleventh hour” and with no statutory authority. He stated that this condition,

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if it were to be imposed, would equate to expropriation without compensation.

[

150] Counsel brought forward the following case law for consideration by the

Tribunal:



Jock River Farms Ltd. v. Ottawa-Carleton (Regional Municipality),

1999]

[



Taylor v. Guelph (City), [1998]

Go-To Glendale Avenue Inc. v. St. Catherines (City), 2019

Reemark Holdings No. 12 Inc. v. Burlington (City), [1991]

[

151] The Tribunal notes that the “Go-To Glendale” case is very similar to the

issue before the Tribunal, where a settlement was being proposed between the

Appellant and the City, and a “last minute” ask for 10-30 % affordable housing

units was injected by Council

[

152] Mr. Treslan, on behalf of the County, also agreed that this was an

unprecedented request.

[

153] Counsel for the Appellant provided the Tribunal a copy of an email sent

from Mr. Treslan’s office, as he was unable to attend closing arguments. The

email was read into the record, as follows:

“

Mr. Treslan, solicitor for the County of Grey, regrets that his trial is

currently ongoing and that he is unable to make final submissions

on the issue of the request by the Town for the condition relating

to affordable housing. This is a request of concern to the County.

Mr. Treslan has reviewed my submissions relating to that issue

and adopts them as his own on behalf of the County. Absent

inclusionary zoning powers or legal bonusing, the County submits

that it has no legal authority to impose a condition requiring the

dedication of affordable housing by a private developer in any

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manner (nor were they asked to in this instance). The County

further submits that this Tribunal has no jurisdiction to impose

such a condition. If such a condition were imposed, it would

amount to expropriation without compensation.”

[

154] The Tribunal recognizes that there is an affordable housing crisis across

municipalities in Ontario. Earlier this year, the province released a report on the

Ontario Housing Affordability Task Force”.

“

[

155] There is no question that municipalities must consider how best to

accomplish the task of providing affordable housing. There are many tools

available to assist in accomplishing this, such as Inclusionary Zoning, incentives

and/or the use of Section 37 or Community Benefits provisions.

[

156] However, the Town has not provided any tools by which the Tribunal can

adjudicate on this matter. In the absence of OP policies providing direction, the

Tribunal is not in a lawful position to grant or approve the Town’s request.

[

157] Subsection 51(25) of the Planning Act states that:

“

The approval authority may impose such conditions to the

approval of a plan of subdivision as in the opinion of the approval

authority are reasonable, having regard to the nature of the

development proposed”

158] Not only must the Tribunal consider the test of reasonableness, it must also

consider whether the proposed condition is relevant, necessary and equitable.

[

159] With respect to reasonableness, there is no policy basis for this request and

the Town’s OP is silent, therefore the Tribunal does not consider this request

reasonable.

[

160] With respect to relevancy, the request is not tied to the development or the

nature of the subdivision. Unlike servicing requirements which are clearly

connected, the issue of affordable housing is a broader community issue and did

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not arise as a result of this proposal.

[

161] With respect to equity, prior planning applications have not been asked to

provide affordable housing, and yet this one developer is now being asked to set

aside 6 units or 30% for affordable housing.

[

162] The Tribunal finds that the Town’s request, although heartfelt and sincere,

is not reasonable, is not relevant and is not equitable in the case of this proposed

development.

ORDER

[

163] The Tribunal Orders that the appeal is allowed, in part, and that the Zoning

By-Law Amendment attached as Schedule 1 to this Decision, be approved.

[

164] The Tribunal Orders that the appeal is allowed, in part, and that the Draft

Plan of Subdivision and the Conditions of Draft Plan Approval, attached as

Schedules 2 and Schedule 3 to this Decision are approved.

[

165] The Tribunal Orders that pursuant to subsection 51(56.1) of the Planning

Act, the County of Grey shall have the authority to clear the conditions of draft plan

approval of the plan of subdivision for the purposes of subsection 51(58) of the

Planning Act.

[

166] The Tribunal will withhold its final Order respecting the above until such

time that the Town of The Blue Mountains advises it has passed the Open Space

Zoning By-Law Amendment for the depicted Tree Preservation Area in the portion

of the unopened road allowance, and the time for initiating all appeals of the Open

Space Zoning By-Law Amendment has expired.

[

167] In the event that there are any difficulties implementing any of the

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conditions of draft plan approval, or if any changes are required to be made to the

draft plan, the Tribunal may be spoken to.

[

168] In the absence of Official Plan policy, the Tribunal encourages the Town of

The Blue Mountains and Tammy Abbots to continue discussions towards a

potential mutually agreeable resolution to the affordable housing concerns.

“T. Prevedel”

T. PREVEDEL

MEMBER

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.

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Schedule 1

Zoning By-law Amendment

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Schedule 2

Draft Plan of Subdivision

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Schedule 3

Conditions of Draft Plan Approval

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