Ontario Municipal Board Commission des affaires municipales de l Ontario

Transcription

1 Ontario Municipal Board Commission des affaires municipales de l Ontario ISSUE DATE: July 31, 2014 CASE NO(S).: PL PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Ted Lawrence Subject: By-law No Municipality: City of Ottawa OMB Case No.: PL OMB File No.: PL PROCEEDING OMMENCED UNDER Subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Ted Lawrence Subject: By-law No Municipality: City of Ottawa OMB Case No.: PL OMB File No.: PL PROCEEDING OMMENCED UNDER Subsection of the 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended Motion By: Ontario Inc. Purpose of Motion: Request for an Order Dismissing the Appeal Appellant: Ted Lawrence Subject: By-law No Municipality: City of Ottawa OMB Case No.: PL OMB File No.: PL PROCEEDING OMMENCED UNDER Subsection of the 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended Motion By: Purpose of Motion: Ontario Inc. Request for an Order Dismissing the Appeal

2 2 PL Appellant: Ted Lawrence Subject: By-law No Municipality: City of Ottawa OMB Case No.: PL OMB File No.: PL Heard: July 18, 2014 in Ottawa, Ontario APPEARANCES: Parties Counsel Ontario Inc. A. K. Cohen, J. L. Cohen City of Ottawa S. Montreuil Ted Lawrence DECISION DELIVERED BY M. C. DENHEZ AND ORDER OF THE BOARD 1. INTRODUCTION [1] This was a Motion to Dismiss part of a ratepayer's appeal without a hearing (but only part), pertaining to an upzoning By-law. [2] In the City of Ottawa ("the City"), King Edward Avenue has long been controversial. It was designed over a century ago, as a grand boulevard through a lowrise residential area called Lowertown, near what is today the centre of the City. In the 1960 s, however, it was connected to a new interprovincial bridge, and was transformed into a major traffic and truck route. A substantial Urban Renewal project was also built on one side. [3] Those changes affected the streetscape dramatically, though not for the better. In the following decades, the City struggled to identify a new planning vision for King Edward Avenue (still lowrise), though without much success.

3 3 PL [4] In the latest vision, as of 2009, the City amended its Official Plan ("OP") to designate King Edward Avenue as a "Traditional Mainstreet," with more potential height (midrise) and more uses. [5] In 2014, Council adopted three new zoning by-laws, reputedly to give effect to that new characterization: One By-law, no , generally rezoned several blocks along King Edward to midrise, including some new uses. It increased maximum height, up to six storeys, compared to the previous limit of 11 metres. The second, no , addressed two specific properties at the corner of King Edward and Clarence Street (several blocks away from the focus of the current debate), particularly their heritage status. The third, no , was a site-specific rezoning to allow a nine-storey apartment hotel on one property ("the subject property"), with a ground-floor restaurant. That property is currently a vacant lot on the east side of a key intersection with another arterial road, St. Patrick's Street, where St. Patrick splits in two (St. Patrick's Street and Murray Street). It is several blocks away from Clarence Street, mentioned in By-law no above. The proposal was by a company named Ontario Inc. ("the developer"). [6] Ted Lawrence ("the ratepayer") is an area resident who said these three By-laws undermined heritage values in the area, along with other aspects of the streetscape. In February, 2014, he appealed the three together to the Ontario Municipal Board ("the Board"). His was the only appeal of these By-laws. [7] About four months later, with the support of the City, the developer responded with the current Motion to Dismiss part of that appeal without a hearing (the part dealing with the subject property), saying that the appeal disclosed no apparent land use planning ground on which the By-laws could be refused (at least as far as the subject

4 4 PL property was concerned). The developer was careful to specify that its Motion pertained only to some parts of the ratepayer's appeal, and not others: As for the first general rezoning By-law (no ), the developer sought to dismiss only that part of the ratepayer's appeal that might affect its own property, referred to therein as rezoning Area A from GM[53] F(2.0) H(11) to TM. In particular, the developer wanted that By-law to apply to its property because it is By-law no which would permit its proposed use (apartment hotel). The developer took essentially no position on how the appeal might affect the rest of that By-law. Concerning the by-law for the corner of Clarence Street (By-law no ), the Motion was silent. On the site-specific by-law for the subject property (By-law no ), the developer called for the ratepayer's appeal to be dismissed entirely. [8] At the hearing on this Motion, the developer was represented by counsel, who relied on the affidavit of planner Dennis Jacobs. The City was also represented by counsel; but other than reiterating its support for the developer's Motion, the City advanced no evidence or submissions. [9] The ratepayer was self-represented. He said that during the five months between filing the appeal and the hearing on the Motion, he had spoken with three planners, but none had been engaged to provide evidence. In an arrangement that was not fully explained, one prominent planner whom the ratepayer had consulted was in attendance at the hearing as an observer, but he offered no evidence. [10] The Board has carefully considered all the evidence and submissions presented. Although the Board agrees with the ratepayer that the history of King Edward Avenue has been frustrating, the Board finds that the By-law provisions addressed in this Motion are consistent with the new OP direction adopted in Although the ratepayer spoke

5 5 PL eloquently and lucidly about important problems, the Board is compelled to agree with the developer and the City that the criteria, outlined in the Planning Act ("the Act") for a Motion to Dismiss, have been met. The Motion is granted. The reasons and details are outlined below. 2. BACKGROUND [11] Not all of King Edward Avenue had been decimated by Urban Renewal in the 1960s. A substantial collection of older buildings was left on the west side, and in 1994, they were collectively designated as a Heritage Conservation District (" HCD") under the Ontario Heritage Act ("OHA"). In 2005, the OHA was amended to provide for strategy documents called "Heritage Conservation District Plans" ("HCD plans") not to be confused with plans under the Planning Act), to accompany HCD s; but the Board was told that no HCD plan has yet been formally adopted by Council here. The boundary of this HCD, named the Lowertown West Heritage Conservation District, follows the middle of King Edward Avenue, facing the subject property. [12] The east side of King Edward Avenue is more disjointed. Several buildings have a quality and vintage which is arguably comparable to the HCD across the street, but the ratepayer said they had not been "evaluated" for possible designation under the OHA (the Board cannot confirm that). Those buildings tended to be separated by stretches of vacant land and parking lots. [13] During this time, the zoning along King Edward Avenue was "General Mixed- Use" ("GM"), allowing a lowrise maximum height of 11 metres, or 3 3½ storeys. However, over the course of several decades, almost no development occurred, and the stretches of vacant land remained so. [14] The City then changed strategy, and adopted Official Plan Amendment No. 76 ("OPA 76") in 2009, designating the subject property and many blocks along King Edward as "Traditional Mainstreet" ("TM"). The City also had a zoning category of the same name, introduced the year before in the City's Comprehensive Zoning By-law no.

6 6 PL OPA 76 alluded to a general midrise six-storey height limit for "Traditional Mainstreets", and the Comprehensive Zoning By-law specified that, in zones of the same name, the height limit was six storeys. However, OPA 76 went a step further: it announced that one could build higher than six storeys, if certain criteria were met, notably: Redevelopment and infill are encouraged on Traditional and Arterial Mainstreets in order to optimize the use of land through intensification. This Plan supports building heights up to six storeys on Traditional Mainstreets. Greater building heights may be considered in accordance with policies 7 through 13 of s The development fosters the creation of a community focus where the proposal is on a corner lot, or at a gateway location. Where the application of the provisions of section and section 4.11 determined that additional height is appropriate. [15] The references to ss and 4.11 are to two OP sections both entitled "Urban Design and Compatibility. They cover several pages. Each describes (at length) various aspects of the OP s relevant design objectives. [16] As mentioned, the developer proposed an apartment hotel of nine storeys. That use was not permitted by the pre-existing GM zoning, but became a permitted use under one of the many provisions of new rezoning By-law no [17] The developer also proposed modifications to items like upper-storey setbacks. This was to accommodate its architectural concept, which it said it had shown (twice) to the City's Urban Design Review Panel ( UDRP ). However, final approval of the design and materials by the UDRP along with Site Plan approval (including plans for access) would not normally occur until after the zoning question was resolved. [18] In due course, the proposed zoning for a nine-storey apartment hotel was supported by City planning staff. It obtained unanimous Council support.

7 7 PL [19] The ratepayer's notice of appeal opened with the following general objection: King Edward Avenue is perhaps one of the most historic streets in the City of Ottawa. It has become an urban highway, plagued by traffic, trucks, unkempt public spaces and many neglected heritage buildings: the unfortunate face of the residential communities to the east and west. The residents have a right to expect better planning than offered in these new zoning by-laws. Lowertown struggles to maintain its historic identity and sense of community divided by this urban highway. There is nothing in the new bylaws that helps pull the two sides together to the contrary, it envisages a 6+ storey wall on each side of the street, further dividing the community and providing no transition to the homes beyond the block faces. [20] The ratepayer outlined several positions in his notice of appeal: He called on the Board for "more fine grained alternative development approaches to protect the properties within the Lowertown Heritage Conservation District", adding that "higher profile buildings, intermixed with heritage buildings, will create an unharmonious patchwork." He also called for "complementary building design features to integrate the development into the local context and streetscape." He called for an "assessment of properties on King Edward Avenue East to determine their heritage value." He objected to the hotel use, calling it "out of place on this block." He said the "public consultation was inadequate", notably concerning the heritage status of buildings at the corner of Clarence Street (By-law no ). Finally, he formally called on the Board "to direct the City to adopt a Lowertown West Heritage Conservation District Plan."

8 8 PL [21] The developer's Motion to Dismiss did not address the Clarence Street By-law (no ), but it challenged whether any of the ratepayer's other positions above were grounds on which the Board could refuse the by-law provisions in question. [22] For his part, the ratepayer told the Board that, for immediate purposes, what he perceived to be in issue was the following set of four requests to the Board: to reduce the height of the project to six storeys; to maintain the same setbacks as are generally applicable to Traditional Mainstreet projects; to have a use which has an "obvious community focus on the ground floor level"; and to vet the question of access and safety implications in this high-traffic area. 3. CRITERIA [23] The Act specifies factors which must be taken into account in decisions about zoning by-laws. It lists, at s. 2, topics which "the Council of a municipality... shall have regard to", in terms of Provincial Interest. Section 3(5)(a) adds that planning instruments must be consistent with the Provincial Policy Statement ("PPS"). Under s. 24(1) of the Act, by-laws must also conform with applicable official plans. [24] As for Motions to Dismiss, s. 34(25) states: The Municipal Board may dismiss all or part of an appeal without holding a hearing if, (a) it is of the opinion that, (i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal.

9 [25] In other words, the statutory criterion: 9 PL is not merely whether the appeal cites any apparent land use planning ground, but also - Whether that planning ground is one upon which the Board could allow all or part of the appeal. [26] The leading case on Motions to Dismiss is East Beach Community Assn. v. Toronto (City), [1996] 42 O.M.B.R. 505: What these particular provisions allow the Board to do is to seek out... whether the issues are worthy of the adjudicative process... We would have been more persuaded if an issue would make a difference to the impact on the community or raised a real planning concern. [27] Finally, as noted by Mr. Justice Leitch of the Divisional Court in Wonderland Power Centre Inc. v Ontario Ltd. [2006] O.J. No. 1407; Carswell Ont. 2112: the onus was on the Appellant to demonstrate there is an authentic land use planning ground, those issues could affect a Decision in a hearing, and those issues are worthy of the adjudicative process. 4. ANALYSIS 4.1 Introduction [28] The Act sets out several potential grounds for a Motion to Dismiss. One is that an appeal is frivolous. Counsel for the developer was careful to specify that he was not invoking any such ground; on the contrary, he formally acknowledged that the ratepayer's conduct had been thoughtful and public-spirited throughout. The Board agrees that there is nothing frivolous about his concern for King Edward Avenue, and his desire for a "harmonious streetscape." [29] The Board can add that it shares the ratepayer's frustration over the longstanding plight of King Edward Avenue, pursuant to what he called the planning "disasters" of the

10 10 PL s. The Board also takes notice of the fact that successive City administrations have shared that concern. For example, the planning decision to "divide the community" with this truck route was made fifty years ago, and the City is still in search of an alternative to the KERWN Corridor (King Edward/Rideau/Waller/Nicholas); but that is not the question to which this Board is currently assigned. [30] In short, the difficulty is that no obvious solutions were identified. Although the City maintained an eleven-metre height limitation for decades, the street's neglected gap-toothed appearance did not improve. [31] In 2009, the City switched to a different strategy. Council adopted the TM designation formally accompanied by OP instructions on how to build beyond six storeys, and criteria for same. That OP provision is not under appeal. This Board is not at liberty to disregard it; it is now the duly-adopted vision in force. 4.2 The PPS [32] As for Provincial policy, one question was whether the proposed By-law provisions were consistent with the PPS (2014), notably the call, at Policy 2.6.3, for an "evaluation" when there is a risk to "heritage attributes": Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved. [33] The question was whether this precondition had failed to be fulfilled. The PPS does not define an "evaluation", but it does provide a definition (of sorts) for the phrase "adjacent lands." In this context, they mean "contiguous." [34] Counsel for the developer argued that the above PPS provision was moot. He said the HCD was not "contiguous", arguably because it did not abut the subject property directly, but instead followed the middle of the street, separated from the subject property by several lanes of traffic. He cited the Board decision in the case of

11 11 PL Avenue-Yorkville Developments Ltd. v. Toronto (City) [2010] O.M.B.D. No. 406,, Board file No. PL090551, issued on May 18, 2010, which held that Policy did not apply if there was no "adjacency." [35] The Board was not convinced that this was the correct argument for the current physical circumstances. The Avenue-Yorkville case is clearly distinguishable: there, the supposedly "adjacent" buildings were almost two blocks apart. Furthermore, PPS provisions should be interpreted from a purposive perspective; the purpose of Policy is to address situations where the "conservation" of "heritage attributes" may be at risk. It is at least counterintuitive to suggest that a project can never affect the "heritage attributes" of an HCD, when it faces the HCD across only half a street width. [36] The more compelling argument is that, whereas Policy calls for an "evaluation" of the proposal's potential impact on heritage attributes, such an evaluation was actually conducted. Here, City staff did address that question in its report to Council, including the following: The proposed zoning is consistent with the Traditional Mainstreet designation, but also protects the integrity of the HCD. The proposal at 364 St. Patrick Street contemplates the development of a nine-storey building that will provide for short and medium term stays for hotel guests as well as a restaurant at a prominent corner. The building design provides for wider sidewalks and landscaping along the street frontages, which will contribute to improving the mainstreet character of this area. The building will be constructed with brick and limestone cladding and the design will incorporate a corner architectural feature to identify this area as a node and also serving as a City gateway. The design is conscious of the existing surrounding context. Particular attention to the streetscape details and building design is acknowledged as this will be one of the first major recent developments in the area. The two restaurant entrances are located along King Edward Avenue, which will contribute to the mainstreet character of having uses easily accessible from the street. In addition, the proposed development will provide for pedestrian enhancements and landscape improvements along King Edward Avenue and St. Patrick Street, providing a more pleasant and lively environment.

12 12 PL [37] Whether or not the ratepayer agrees with staff's design opinions above, no one can suggest that the City failed to produce a considered opinion. An "evaluation" was indeed conducted. The Board was therefore not convinced of any significant digression from the requirements of PPS Policy Height, "Patchwork", and "Community Focus" [38] Next, there is the question which is more central to the ratepayer's concern, namely whether the proposed height would lead to "an unharmonious patchwork." [39] The difficulty with that argument is that the 2009 OP amendment which is binding clearly opens the door to this prospect, including building beyond six storeys. [40] The real question, within this Board's mandate, is whether this project complies with the applicable OP criteria. The OP specifically foresees the possibility of exceeding six storeys, if the project meets (a) locational criteria, and (b) design criteria, namely that it fosters the creation of a community focus where the proposal is on a corner lot, or at a gateway location, and it meets the OP s design criteria in ss and [41] As to (a) locational criteria, the planner s professional opinion was that this junction of three arterial roads (King Edward, St. Patrick and Murray) was the quintessential corner and "gateway. The Board is compelled to agree. [42] The ratepayer countered, however, that according to the OP wording above, eligibility for increased height at a "corner" or "gateway" first depended on yet another criterion, (c) having a "community focus." He added that a hotel, occupied by out-of-towners, had no such community nexus, and was hence ineligible. At another point in his presentation, however, he indicated that his main interest was a community focus "on the ground floor level" at least.

13 13 PL [43] The Board finds that, even if one accepts the ratepayer's argument that (c) a "community focus" is an essential precondition to eligibility for greater height, there is still a fundamental difficulty in the ratepayer's position. It is that the Board was shown no intrinsic reason why a hotel and/or restaurant displayed less "community focus" than other normal uses in this area. [44] It is a matter of public record that many municipalities actively promote hotel uses in or near HCD's because, from a tourism perspective, they are considered complementary to one another. The Board also heard no rationale explaining why restaurants fail to assist a "community focus on the ground floor level." Many Ontarians would disagree. For that matter, the Board was shown no reason why the developer could not add other uses "on the ground floor level" that would add to that "community focus." [45] In short, the Board was persuaded neither that the proposed use was inappropriate, nor that the OP made this project ineligible for a building of over six storeys. [46] That leaves (b) design criteria, including compatibility and whether there should be adjustments to the terracing provisions and upper-storey setbacks. That is precisely the kind of question which falls within the mandate of the UDRP. The Board was shown no OP provisions suggesting a fatal incompatibility between the proposed zoning and those OP criteria. [47] In short, there was no apparent basis to suppose that the project was ineligible for the proposed number of storeys, in accordance with the OP criteria. At the same time, there was no apparent basis to suppose a significant shortcoming in terms of use or community focus. Finally, the Board heard no evidence suggesting a fatal design problem which would be beyond the UDRP's ability to address.

14 14 PL Traffic and Access [48] The Board now turns to the ratepayer's proposition, at the hearing on this Motion, that his zoning appeal should be used as a forum to debate the safety of prospective access to the site. The Board has three observations: First, there was no allusion to this proposition in his notice of appeal. Second, access is typically addressed at the Site Plan stage, not the zoning stage. Indeed, counsel for the developer volunteered that, if the City demanded a new traffic/access study at that stage, the developer would willingly conduct it. Third, the Board was shown no reason to doubt the expertise of the City's engineers. If they are not satisfied that the access questions are resolved, then they will not recommend Site Plan approval. [49] The Board was therefore not persuaded that traffic/access could be a ground on which to allow all or part of the appeal. 4.5 Other Heritage Questions [50] On this Motion, the Board will not address the Clarence Street properties, their By-law (no ), or any supposed procedural defects in the adoption of that Bylaw. [51] That leaves the ratepayer's two requests for new initiatives related to the Ontario Heritage Act. First, he called on the Board "to direct the City to adopt a Lowertown West Heritage Conservation District Plan." He also called for an "assessment of properties on King Edward Avenue East to determine their heritage value."

15 15 PL [52] As for an HCD plan, the Board can certainly advise that it is the plain legislative intent of the OHA that each HCD be accompanied by a document outlining its strategic direction. Since 2005, such documents have been called HCD plans; but the Board has also recognized pre-2005 documents that corresponded to the statutory description of HCD plans, though under a different name. [53] However, although the Board can make that observation, there is nothing in the OHA which authorizes this Board to use a Planning Act appeal as a springboard with which to "direct" a municipality either to adopt an HCD plan, or to "assess" a set of buildings for heritage value. The latter two initiatives would be under a separate statute, the OHA. 5. CONCLUSION [54] The Board finds that the positions outlined by the ratepayer in his notice of appeal were problematic. They were not positions on which the Board could allow all or part of the appeal. [55] For that matter, the ratepayer was vague as to what he would do at the hearing on the merits, which he had not already done in the five months since he filed his appeal. He did allude to "exploring (the issues) further with a planner"; however, the Board was given no indication that significant evidence supporting the appeal was likely to materialize in the foreseeable future, e.g. for the hearing on the merits. An appeal without visible evidence or any apparent means of gathering same is not likely to be one on which the Board could allow all or part of the appeal. The Board did not see how scheduling such a hearing on the merits would benefit the ratepayer. 6. ORDER [56] The Board disposes of this matter as follows: 1. The Motion to Dismiss the appeal, in part, is granted.

16 16 PL The appeal is dismissed, specifically as it pertains to a) By-law no of the City of Ottawa, where it rezones Area A from GM[53] F(2.0) H(11) to TM; and b) By-law no of the City of Ottawa, in its entirety. 3. The Board makes no Order herein as to the balance of the appeal, or to by-law provisions other than those cited above. 4. The Board notes that, other than the balance of this appeal, there are no outstanding appeals pertaining to By-law no For the purposes of s. 34(31) of the Planning Act, the Board finds that the part of the By-law, which rezones Area A from GM[53] F(2.0) H(11) to TM, is no longer in issue, and orders that it shall be deemed to have come into force on the day the By-law was passed. Under s. 34(33), the Board dispenses with giving notice thereof. 5. The Board notes that there are no other outstanding appeals pertaining to By-law no The Board further notes that under s. 34(30) of the Act, the By-law is deemed to have come into force on the day it was passed. M. C. Denhez M. C. DENHEZ MEMBER Ontario Municipal Board A constituent tribunal of Environment and Land Tribunals Ontario Website: Telephone: Toll Free: