ISSUE DATE:

Sept. 1, 2011 PL090606 PL110191 Ontario Municipal Board Commission des affaires municipales de lOntario
Aurora 2C West Landowners Group Inc. has appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from Councils refusal or neglect to enact a proposed amendment to the Official Plan for the Town of Aurora with respect to lands located within Part of Lots 21 to 26, Concession 2, east of Yonge Street, known as the Bayview Northeast Area 2C West lands for the purpose of amending the policies of the Town of Aurora Official Plan to bring the subject lands into conformity with the Regional Official Plan Amendment that designates the lands Urban Area by bringing the subject lands into the Town of Aurora Official Plan Future Urban Expansion Area and deleting the subject lands from the area subject to Site Specific Policy (3.6.2d) and to establish a Secondary Plan for the subject lands known as Bayview Northeast Area 2C West Town of Aurora File No. D09-05-08 O.M.B. Case No. PL090606 O.M.B. File No. PL090606 Elhara Investments Limited and Aurora-Leslie Developments Limited (collectively known as Aurora-Leslie Developments Inc.) have appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from Councils refusal or neglect to enact a proposed amendment to the Official Plan for the Town of Aurora, as it specifically pertains to an approximately 76 hectare (188 acres) parcel of land composed of Part of Lots 23 and 24, Concession 3, E.Y.S., located between Leslie Street and Highway 404, north of Wellington Street and south of St. Johns Sideroad in the Bayview Northeast Planning 2C Area (which are presently designated Urban Area by the Regional Municipality of York Official Plan Amendment No. 53), from Rural on Schedule A and subject to Site Specific Policy Area 3.6.2 d) for the purpose of establishing a comprehensive secondary plan to facilitate the development of a new community Town of Aurora File No. D09-01-09 O.M.B. Case No. PL090606 O.M.B. File No. PL100186 IN THE MATTER OF subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Appellant: Appellant: Appellant: Subject: Municipality: OMB Case No.: OMB File No.: Aurora 2C West Landowners Group Inc. Elhara Investments Limited & Aurora-Leslie Developments Limited (collectively known as Aurora-Leslie Developments Inc.) Robert G. Sikura Wildrush Homeowners Group Proposed Official Plan Amendment No. 73 (OPA 73) of the Town of Aurora Town of Aurora PL090606 PL110191

-2-

PL090606 PL110191

APPEARANCES:

Parties Elhara Investments Limited and AuroraLeslie Developments Limited (collectively Aurora-Leslie Developments Inc.) Aurora 2C West Landowners Group Inc. Town of Aurora Regional Municipality of York York Catholic District School Board York Region District School Board MI Developments Wildrush Homeowners Group Robert G. Sikura

Counsel I. Kagan

C. Barnett I. J. Lord P. Patterson H. Paterson P. Harper C. Facciolo K. Hill T. Halinski (and J. Bright student-at-law)

DECISION OF R. ROSSI AND ORDER OF THE BOARD The Appeals This hearing before the Ontario Municipal Board dealt with a variety of appeals that required the Board to issue diverse Orders. First, pursuant to subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended, Elhara Investments Limited and Aurora-Leslie Developments Limited (collectively, Aurora-Leslie Developments Inc. Aurora-Leslie) (Appellants) have appealed the Town of Auroras Official Plan and proposed their own secondary plan that would redesignate the Aurora-Leslie lands from Rural to Urban Expansion Area and establish the Aurora-Leslie Landowners Group Secondary Plan. The proposed secondary plan proposed to designate some 25.3 hectares of the Appellants land adjacent to Highway 404, east of the extension of First Commerce Drive, as Business Park and approximately 40.8 hectares between Leslie Street and First Commerce Drive for residential and related uses. These Appellants

-3-

PL090606 PL110191

have also appealed OPA 73, which is the Town of Auroras amendment to the in-force Official Plan, being a Secondary Plan for the Area 2C lands. The proposed Official Plan Amendment No. 73, adopted by the Town in September 2010, would designate all of the lands situated east of Leslie Street and west of Highway 404 with a Business Park Interface Overlay Designation that would limit the uses to employment uses only. In February 2011, the Regional Municipality of York (York Region) issued its notice of intention to approve OPA 73 with modifications. As modified, OPA 73 proposes to designate the Aurora-Leslie lands Business Park 1 with the exception of three stormwater management facilities and portions of the Weslie Creek Valley and a woodlot along Highway 404, which are proposed to be designated Environmental Protection Area (EPA). That same month, Aurora-Leslie appealed OPA 73 to the Board. Second, pursuant to subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended, Robert G. Sikura (Appellant) has also filed an appeal against OPA 73. The Appellant agrees with the Towns placement of a Business Park designation of its lands along St. Johns Sideroad (the south parcel) and with the Environmental Protection Area designation for the lands running through the middle of the property, but the Appellant opposes a Business Park designation for its north parcel, preferring instead an Urban Residential 1 designation for this land. The north parcel abuts the municipal boundary of the Town of Aurora and the Town of Newmarket. The Appellant submits that these three designations will create a mix of land uses in a compact urban form aimed at achieving a complete community. Specifically, in respect of the north parcel, separated as it is from the south parcel by the EPA-designated lands, the Appellant submits that the residential designation will contribute to achieving an appropriate interface with approved residential development on the lands to the north as well as help the Town to achieve a balance of population and employment uses. Third, by way of a July 21, 2011, settlement hearing held on consent within this larger hearing, the Board issued a separate Interim Order in respect of the appeals of the Aurora 2C West Landowners Group Inc. and Wildrush Homeowners Group that allowed their appeals against OPA 73. The Board ordered the necessary modifications to that planning instrument in order to facilitate residential uses on the 2C lands west of

-4-

PL090606 PL110191

Leslie Street. The revisions are reflected in a copy of OPA 73 dated July 21, 2011, which is on file with the Board.

The Hearing The hearing into the private appeals and the OPA 73 appeals involved a variety of Parties and lasted more than five weeks, comprising of several hundred hours of oral evidence from some 24 witnesses; thousands of pages of documents and other written and visual evidence; and the Boards own notes comprising several hundred pages. Submissions and arguments were extensive and supported by the evidence of the respective Parties. The Parties also put forward a comprehensive list of issues that they asked the Board to adjudicate in its decision. Evidence was geared to elicit useful information for the Board to consider and weigh in respect of these issues. Following the initial days of the hearing and during the balance of the five-week hearing process, the Board communicated to Parties Counsels during various discussions with them in the course of the hearing that despite their broad list of issues, the primary focus of the case for the Board was the matter of whether residential uses should be permitted east of Leslie Street. After several weeks of the Boards post-hearing evidence review, the Board remains satisfied that this was the critical issue to be addressed for this hearing, and for which these Parties deserve its determination. In this regard, these reasons focus on this central aspect of the case at hand.

Context: Town of Auroras Growth Management Exercise and Planning for the Area 2C Lands: 1996-2011 The 2C Planning Area is located at the northeast quadrant of the Town of Aurora. The 2C lands are bounded by the Town of Newmarket on the north, Highway 404 on the east, just north of Wellington Street on the south and Marsh Creek on the west. The 2C Planning Area consists of approximately 445 hectares (1,080 acres) and represents the last Greenfield development opportunity within the Town of Aurora. Aurora-Leslies proposed Secondary Plan would generate approximately 1,021 residential units of a variety of dwelling types as well as a mix of office and industrial flex space development east of First Commerce Drive.

-5-

PL090606 PL110191

Jim Kyle, a planner and the Manager of Policy Planning in the Planning and Development Services Department of the Town of Aurora, provided an exhaustive chronology (Appendix B) in his witness statement, that covers the Towns five-year Official Plan review; OPA 17 to the Towns Official Plan; OPAs 3 and 53 to the Region of York Official Plan; OPA 73 to the Towns Official Plan; the Aurora 2C West Landowners Group Inc. private OPA; the Aurora-Leslie private OPA; and related processes. The following short background chronology of the 2C planning process is relevant to these proceedings. In October 1996, in order to implement the Growth Management Strategy, the Town of Aurora adopted Official Plan Amendment No. 17 to expand the urban boundary. The Area 2C lands were identified as being required for future growth. OPA 73 added Site Specific Policy area 3.6.2.d, now known as the 2C Area, was identified as the most appropriate location for expansion of the urban areas, should additional lands be needed beyond 2016. In 2002-2003, five years after the approval of OPA 17, and in accordance with this policy, the Town initiated and completed a five-year Official Plan review with the main focus being on growth management and potential of the 2C lands. Three options for the 2C lands were prepared and evaluated through a full public process. In April 2003, Hemson Consulting Ltd. prepared its Strategic Directions for Aurora Final Report: Town of Aurora Five Year Official Plan Review, indicating Option 3c as the preferred plan for the 2C Area. In May 2003, Town Council adopted a resolution containing recommendations resulting from the Five Year Official Plan Review process, providing for a structured urban boundary expansion process and Secondary Plan process for the 2C Area. In December 2003, Regulation 432/03, the Greenbelt Study Area Ministers zoning order included the 2C Area lands, curtailing progress on the request to the York Region to commence a ROPA to bring the 2C lands into the Urban Area for a period of one year. In September 2004, Town Council authorized North South Environmental to complete the required Natural Heritage Study specific to the 2C Area. In May 2006, the Town completed its required environmental study entitled A Natural Heritage Evaluation for the North-East Aurora Planning Area 2C, which shows all the features and functions to be protected within the 2C Area.

-6-

PL090606 PL110191

In June 2006, four significant developments occurred: Cole Engineering completed the required Servicing Study for the 2C Area of the Town of Aurora for the Town; Hemson Consulting Ltd. prepared a required Planning Justification and Fiscal Analysis for Urban Designation of the 2C Lands, Town of Aurora Report; the Growth Plan for the Greater Golden Horseshoe was approved; and a Town Planning Staff report recommended that Town Council request the Region to initiate a Regional Official Plan Amendment to include the 2C lands within the Urban Area designation of the Regional Official Plan. In February 2008, the Region approved ROPA 53, which expanded the urban boundary and which re-designated the Area 2C lands from Rural Policy Area to Urban Area. This ROPA made the Aurora-Leslie lands and the remainder of the Area 2C lands part of a settlement area. In November 2008, an application for a private secondary plan was filed by the Aurora 2C West Landowners Group Inc. for all of the 2C lands west of Leslie Street. The Aurora 2C private OPA proposed primarily residential uses. In March 2009, Town Council adopted by resolution Planning Staffs recommendations in respect of the completion of terms of reference for the 2C Secondary Plan. In April 2009, staff asked for and received Councils authorization to initiate the 2C Secondary Plan (OPA 73) and to retain a consultant to complete the study based on established terms of reference. A further Planning Staff report recommended endorsement of the terms of reference and to commence an RFP for the Five Year Official Plan Review process. In May 2009, there were a number of relevant events: Town Council endorsed the Regions population, household and employment forecasts as approved by Regional Council on January 21, 2009 (being a 2031 population of 70,200); a Town Council meeting approved staff recommendations to initiate the Five Year Official Plan review process; and the Aurora-Leslie Appellants filed an application for a private secondary plan for approximately half of the 2C lands east of Leslie Street, representing two of the five major landholdings on the east side of Leslie Street. This private OPA proposed a land use plan with approximately one-third of the land devoted to employment uses and two-thirds of the land devoted to residential uses and was accompanied by technical studies.

-7-

PL090606 PL110191

In July 2009, Planning Partnership was retained in association with URS (engineering and architects), Millier Dickinson Blais (economic development) and Natural Resource Solutions Inc. (environmental) to assist with the completion of the 2C Secondary Plan as well as the Five Year Official Plan Review. In August 2009, the Town sent correspondence to the Appellants confirming that their private OPA application was deemed to be complete. In September 2009, Town Council retained the Planning Partnership, in association with URS Canada Inc. (transportation and municipal servicing engineers and heritage consultants), NRSI (environmental consultants) and CB Richard Ellis (real estate & market consultants) to assist with the completion of the 2C Study and a peer review of the private applications. In November 2009, the First Steering Committee held pertaining to the 2C Secondary Plan and Official Plan review was held. In March 2010, Council amended the executed contract with the Planning Partnership to include additional peer reviews of the Aurora 2C private application and to accommodate the Environmental Assessment requirements pertaining to the 2C Secondary Plan. In late-May 2010, the Town held two, full-day intensive 2C Secondary Plan workshops and another 2C Secondary Plan workshop was held on the last day of May. The workshops resulted in the creation and initial review of four options for the subject lands with Option 1 being the plans submitted by the Appellants. In June 2010, the Integrated Environmental Assessment Draft Monitoring Report #1 was completed. In July 2010, the first draft of the 2C Secondary Plan Completed. In August 2010, there was a special Town Council meeting to discuss the Five Year Official Plan Review and 2C Secondary Plan; and the second draft of the 2C Secondary Plan was completed. In September 2010, statutory public planning meetings were held with regard to the proposed 2C Secondary Plan and the proposed new Town Official Plan; Town Council endorsed the Yonge Wellington Corridor Study (the Aurora Promenade); and it adopted OPA 73 and the new Town of Aurora Official Plan. In October 2010, the Town issued Notices of Adoption of OPA 73 and the new Town Official Plan.

-8-

PL090606 PL110191

In January 2011, a Regional Staff report recommended that Regional Council approve OPA 73, subject to modifications; a Town Planning Staff report provided a detailed list of the proposed Regional modifications to OPA 73 along with Town Staff comments on each suggested modification. Town Council endorsed the Regions proposed modifications to OPA 73 with the suggested revisions; and the Region approved OPA 73, subject to modifications. In February 2011, the final Municipal Class Environmental Assessment Monitoring Report, prepared by URS for OPA 73 and Notice of Completion were issued; the Region issued its Notice of Decision approving OPA 73, subject to modifications; and Aurora-Leslie, Sikura and Aurora 2C all filed Notices of Appeal of OPA 73. In March 2011, Wildrush Homeowners Group filed a Notice of Appeal of OPA 73. The factual evidence demonstrates that the basis for the creation and implementation of OPA 73 was the Town of Auroras decision to undertake a comprehensive growth management exercise that both fed into and linked to the new, York Region Official Plan, the Towns new Official Plan and the Growth Plan. As Planner Ron Palmer explained in his witness statement, the comprehensive assessment of growth deals with the entire Town of Aurora and includes an assessment of the potential for intensification, the existing developed and approved for development context of the Town, as well as the need for Greenfield development areas to accommodate long-term growth. Counsel for the Town, Mr. Lord, characterized the process in his submissions as the most extensive process ever followed with 37 identified Town public participation opportunities. The extent of the Towns public process is revealing. The 2C Secondary Plan was coordinated through a Joint Steering Committee with the Five Year Official Plan Review. The committee held 13 public meetings. Three full-day workshops were held, running from 9:00 a.m. to 9:00 p.m. and enjoying broad participation from members of the community. Three public General Committee and Council meetings were also held as well as a statutory Public meeting. Further, the Integrated Environmental Assessment (EA) Process and corresponding notices followed the same public process except that separate notices of completion were issued for the EA process.

-9-

PL090606 PL110191

In addition to its review of the Towns comprehensive planning exercise and public consultation process, documented in great deal in various exhibits before the Board, the Board also heard from Town and Region witnesses that the Aurora 2C lands east of Leslie Street had been identified for potential employment growth since the early-2000s. As Planner David Butler told the Board, both the Town and Region have consistently supported employment uses between Leslie Street and Highway 404 for approximately eight years as part of their respective growth management studies. The Board also reviewed Appendix D of his witness statement (Exhibit 78, pages 1-10) that provides the growth management strategy process in which the Town has engaged. Mr. Butler explained further: As the Greenbelt Plan and Oak Ridges Moraine Conservation Plan have been implemented, portions of the Town have been rendered ineligible for inclusion in the Towns urban area. As a result, the 2C lands now represent the last critical land reserve and opportunity for future long-term employment. This planner opined that as a result of the aforementioned Provincial Plans, the amount of potential developable area in the Town of Aurora has been reduced, including the total potential population and employment numbers. Planner Ron Palmers witness statement also reviewed the process for the preparation and adoption of OPA 73 (as modified) and called it extensive, transparent and inclusive (Exhibit 36, Tab 2, pages 19-20). With this evidence in mind, the Board considered the Aurora-Leslie appeals.

The Aurora-Leslie Appeals The Board considered Aurora-Leslies private, site-specific appeal (a proposed secondary plan) and its appeal against OPA 73. Counsel for Aurora-Leslie, Mr. Kagan, submitted that this matter is not about what is possible, but instead about what is recommended. The Board accepts this submission as persuasive. It is not simply that residential uses can work; it is whether residential uses should be permitted, in concert with employment uses, on the Appellants lands east of Leslie Street. It is evident from the breadth and scope of supporting expert witnesses and documentary evidence, much of it supported by the planning documents themselves, that residential uses east of Leslie Street are indeed possible and would not offend the general policies found in the various levels of planning instruments in evidence. On the ground, the Board also determines that matters of grading, buffers, road design, servicing, access, building and

- 10 -

PL090606 PL110191

structure type and design, among others, have been addressed satisfactorily by the Aurora-Leslie Appellants. Through their witnesses, the Appellants have shown how the Aurora-Leslie lands may be shaped and manipulated in a myriad of ways that would no doubt create a useable and liveable residential community such as the one the Appellants have proffered first to the Town and now to the Board. Against the backdrop of an impressive array of oral and written evidence on planning, urban design, engineering, land economics, traffic and transportation from all Parties, the Board was left to consider whether there was sufficient evidence to support the Appellants challenge to the Town of Auroras decision to designate the Aurora-Leslie lands for employment uses only and to prohibit residential uses as part of this Municipalitys longterm growth strategy and vision. The Aurora-Leslie Appellants took issue with the Town of Auroras decision to enact a Business Park Interface Overlay Designation over their lands and they argued that the Town had pre-determined very early in the process leading up to the adoption of OPA 73 that there would be no residential uses permitted east of Leslie Street. The Board examined the very detailed planning process that went into the Towns decision to designate all-employment uses in the part of the Aurora 2C planning area. The Factual Review, contained in Exhibit 2, outlines the detail that went into the Towns preparatory and advance planning work in respect of the Area 2C lands. Other documentation reports, minutes of meetings, correspondence (both written and electronic) before the Board as well as viva voce evidence and various witness statements serve as persuasive evidence that, on a balance of probabilities, the Town in fact had pre-determined its preference for employment uses east of Leslie Street well before its adoption of OPA 73. The Appellants next alleged that in the context of this pre-determination of uses, the Appellants case for permitting residential uses on the Aurora-Leslie lands was not given serious consideration by the Town. While the Appellants would have the Board believe that there was something prejudicial or unfair in this pre-disposition, the Board is not so persuaded. The Board is of the view that this Municipality and any municipality, are entitled to make their decisions on the appropriate or desired land use designations if they wish as long as those designations are supportable in order to fulfill or complete their long-term planning objectives for the health and growth of the community as a

- 11 -

PL090606 PL110191

whole and if those designations conform to the policies of the relevant and applicable planning regime. The Board is unwilling to insert itself into a determination of the appropriateness of the Town of Auroras broad vision for a complete community, which includes its pre-disposition to the protection of, and planning for, employment uses on the subject lands. In the Boards determination, its vision is not out of step with the direction that the Growth Plan gives in this regard (cited later in this Decision). The Town of Aurora has evidenced that it does not make isolated planning decisions but rather, it considers the potential impacts of these designations on other areas and it has targeted specific areas of the Town for certain types of growth. Further, the Government of Ontario put in place its Growth Plan that requires all municipalities to engage in conformity exercises such as that witnessed in Aurora. Notwithstanding the expression of this preference for all-employment uses east of Leslie Street, the Town is amply supported by the direction that the upper-tier plans have charted. For example, the Regional Official Plan sets out clear policy direction for the appropriate amount of distribution by area municipality of employment growth to 2031 as the Growth Plan mandates. The distribution is based primarily on the proximity of lands to other employment areas within the Town and the Region, the 400-series highways and their strategic location within the northern part of the GTA. Mr. Butler opined that the amount of employment land has been strategically assessed by both the Region and the Town of Aurora as part of their respective conformity exercises as the Province requires for implementation of the Growth Plan. Therefore, the Board examined two central components of the Parties issues: the use of population and employment numbers and whether OPA 73 is in conformity with the upper-tier planning instruments.

Population and Employment Numbers The Board has been presented with evidence of a reduction of the total population of the Town from 75,000 persons to 2026 in accordance with the in-force Town of Aurora Official Plan and the in-force York Region Official Plan, to a maximum of 70,200 persons to 2031 as per the new Town and Regional Official Plans. The reduced numbers derive from an updated supply and demand analysis. Also, the total

- 12 -

PL090606 PL110191

employment numbers for the Town increased from 33,000 to 2026 (in force) to 34,200 to 2031 (new Plans) and derive from the mandatory Provincial conformity exercise for the Growth Plan. While the Appellants Counsel, Mr. Kagan, stressed repeatedly throughout the hearing that planning is more than numbers (referencing the Towns desire to use lower population and employment forecasting numbers in their not-in-force and/or under appeal documents instead of the higher numbers contained in the in-force documents), this Counsel took great pains to address what he perceived to be the incorrect or less preferable numbers to use for the Towns and Regions long-term planning, informed by the latters witnesses using faulty or problematic methodologies. He submitted that their subsequent planning exercise must be flawed if the numbers they have relied upon are not reflective of what is actually occurring in the Town. He added that his experts numbers should be relied upon to assess the real future population and employment forecasts for the Town and the Region. Specifically, Mr. Kagan argued that the Board should use the in-force numbers (75,000 persons and 33,000 jobs) for his clients private appeal and not the new population and employment forecasts of 70,200 persons and 34,200 jobs found in the adopted, but not in force, Regional Official Plan. He added that as OPA 73 is an amendment to the in-force Town of Aurora Official Plan, it must comply with that document as well as with the in-force Regional Official Plan. Mr. Kagan went so far as to submit that his clients private appeal could still be approved even if it were assessed against the lower figures (a population of 70,200). These population and employment numbers, and which ones should be used, played an important part of the Aurora-Leslie case. A significant component of Mr. Kagans submissions focused on related numerical arguments: What is the proper application of the Growth Plan and in particular the Schedule 3 numbers That the Schedule 3 numbers are not hard caps What the Board should do with the employment numbers

- 13 -

PL090606 PL110191

Reasons why the Towns low employment density should not be used A comparison of his experts and the Towns employment density figures

Mr. Kagan presented some 18 pages of submissions with various approaches to the application or misapplication (by the Town and the Region) of the population and employment numbers. He also offered up his clients witnesses evidence on the correct numbers to be utilized in determining whether residential uses should be permitted on the Aurora-Leslie lands. Arithmetical calculations, statistical methodologies, assumptions and forecasting, both precise and imprecise, comprise the work and inform the opinions of all of the experts in this case. Witnesses with significant experience were called upon to posit their theses and opinions in respect of what the proper interpretation of the numbers should be. In the case of the Town and Region, it was to show that employment lands will be needed in the future and that is the best use of the Aurora 2C lands east of Leslie Street to Highway 404, as well as to show that their growth management strategies and conformity exercise informed their figures and that such figures were capped; and finally, that allowances for population and employment increases in the Town of Aurora must not allow those numbers to exceed what is essentially a cap in the Schedule 3 figures contained in the Growth Plan. For the Appellants, it was to show how residential uses on the same lands will not hinder or compromise the Towns and the Regions ability to meet the targets of the provincially-mandated Growth Plan; in fact, through the various iterations of plans they presented, they submitted that they can provide a workable mix of employment and residential uses that will contribute to the Towns goals while meeting the policies of the relevant planning instruments. The Board has carefully reviewed all of the Appellants Counsels submissions and it has considered thoroughly the analysis and opinions that support the in-force and under-appeal population and employment numbers as it is bound to do, but the Board is unwilling at this stage of the Municipalitys planning exercise for the 2C lands (and as the Town seeks to meet the Provinces mandated planning forecasts to 2031), to overturn OPA 73 on its interpretation and provision of lower population numbers and a slightly higher employment forecast as reasons to set aside the Towns planning instrument as somehow incorrect or imprecise. Besides, there are other supportive planning policies for the Towns vision. There are in fact many methods of interpreting

- 14 -

PL090606 PL110191

numbers and figures as all of the planners, engineers, economists and transportation witnesses can attest, but the Appellants have taken issue with the Towns and Regions calculations and the fact that they result in numbers that do not jibe with the Appellants forecasting work. Nevertheless, the Board finds that the figures that the Town and Region used (lower population and employment numbers in accordance with the direction these respective governments are charting in both of the new Official Plans) derived from a comprehensive planning process, study period and from peer review exercises that cannot be discounted or dismissed as the Appellants would like. The processes also involved top-down direction from the Province on the Municipalitys longterm growth plans to 2031. This process has been one of extensive work, community involvement, specialist and expert engagement and collaborative work at, and between, all levels of government. It is also just one part of the Towns long-term planning strategy that seeks to designate employment uses only for the lands east of Leslie Street in response to what this Municipality perceives to be part of its long-term needs for the future. Set against this backdrop, the Board is not prepared to overturn the work of the Town and Region in their growth management and planning exercises because the Appellants do not like their numbers. The Board was also bound to consider the value of OPA 73 in the context of all of the appropriate planning principles, policies and evidence; numbers alone do not a case make. It is more reasonable for the Board to support the Towns right to apply and test its population and employment forecasts as contained in OPA 73 and through the various review processes that it is mandated to carry out, it may assess and monitor the value of the all-employment designation it desires for the Area 2C lands east of Leslie Street. The Town will eventually be able to determine whether its planned figures, also contained in the upper-tier Schedule 3 numbers of the Growth Plan, are accurate and/or reflective of its employment needs over the long-term. In this regard, the numbers may be revised in a manner sufficient to permit residential uses on the Aurora-Leslie lands, as long as good planning principles continue to apply and that all evaluations are made against the policies of the broad planning regime in place. Accordingly, the Board determines that for it to overturn the Towns preferred population and employment numbers as set out in OPA 73 and elsewhere (as reflective

- 15 -

PL090606 PL110191

of the planning forecasts to 2031) would, in the Boards view, interfere with a wellstructured and comprehensively-planned growth management exercise to which the municipal, regional and provincial governments have all been parties. It is also premature, in the Boards determination, to prefer the Appellants experts figures and opinions to that of the Towns witnesses, and in doing so, overturn a planning process that has been lengthy, detailed and consultative, and one whose objective was to emphasize the importance of employment lands within a context of balanced community growth that encourages a complete community, intensification and the efficient use of infrastructure, among other things. The lower population and employment numbers as well as the fruits of the Towns growth strategy and planning exercise must have sufficient time to be tested in the context of the Growth Plan. Disrupting that flow by allowing appeals for Aurora-Leslies lands on the basis of divergent expert opinions on the applicability of in-force or not-in-force numbers (the latter providing the strategic direction of the Town to meet the objectives of the Growth Plan) does not serve the public interest. The Town of Aurora has not yet been able to test its theories and forecasted population and employment figures as contained in OPA 73 or to gauge their accuracy through succeeding years. Further, and if giving some comfort to the AuroraLeslie Appellants, there will be time for provincially-mandated, five-year review exercises through which the Town will assess, modify and/or revise their forecasted figures and, where appropriate, to review land use designations. In the time taken for this hearing, the Board determines that no good planning grounds were proffered by the Aurora-Leslie Appellants in this case to cause the Board to allow either the private, sitespecific appeal of Mr. Kagans clients or their general appeal against OPA 73. Additional detail in the scope and magnitude of the Towns pre- and advance planning and study work is detailed in the comprehensive outline of Mr. Kyles witness statement (Exhibit 36, Tab 1). As the Board has determined, numbers are not and cannot be the only driving force behind the Business Park designation for the lands east of Leslie Street, despite the Appellants submission that the Board has to make a finding that also speaks to the population and employment numbers. As the Board has explained in these reasons, it cannot and will not make such a finding for the reasons cited. The Board notes that the Towns work goes beyond numbers. It involved many other components of a broadly-executed planning process, undertaken by some of the GTAs most experienced experts, and all of this work, cited above and detailed far more

- 16 -

PL090606 PL110191

completely below, speaks to the Towns intention to apply the Business Park designation to the subject lands for the first years following the Provinces growth management strategy

OPA 73 and the Policy Framework Having determined that the Town is justified in applying its revised population and employment numbers, the Board also reviewed the evidence to determine whether OPA 73 is in fact in conformity with the upper-tier planning instruments. As the hearing focused so centrally on the matter of employment lands and where they should be directed in the case of Aurora, it was appropriate to consider the direction that the Growth Plan provides in respect of this land use. The Board considered the decision of the Board in Bradford West Gwillimbury (Town) Official Plan Amendment No. 15 (Re), [2009] 63 O.M.B.R., pages 385-386, and in particular the determination made therein on the importance of employment uses and a municipalitys capacity to review its plans to respond to any increases in the planned numbers:
The emphasis on employment lands is unmistakeable in the Growth Plan, as is the clear direction to municipalities to take the necessary steps to ensure an appropriate supply of such lands.The Town had taken the necessary steps in its Official Plan to meet the emerging requirements of the PPS and the Growth Plan. The Town had laid out prudent and responsible provision for employment lands within the context of balanced growth, concentrated development, efficient use of planned infrastructure, and protection of natural heritage and prime agricultural areas. As population and employment projections emerged from the County and from the Province, the Town reviewed its plan to accommodate the increases in growth these projections represented. And the Town took the necessary steps to conform to the emerging provincial policy thrusts.

The Board sees similarity between the Towns work and that before the Board in this case, particularly where the evidence reveals that there exists a process for further work and adjustments to numbers and land use designations should they become necessary in order to achieve the Provinces growth vision. The Board reviewed the relevant policies of the Growth Plan and determines that the Town has met policy 2.2.1, which prescribes a uniform planning period to 2031 as well as the distribution of population and jobs by region. The Schedule 3 numbers

- 17 -

PL090606 PL110191

reflect an overall maximum population of 1.5 million and 780,000 jobs for the York Region. The Town has engaged in and complied with the direction of this policy. The Town has also given serious consideration to Section 2.2.2 of the Growth Plan, which states: Population and employment growth will be accommodated by f) ensuring the availability of sufficient land for employment to accommodate forecasted growth to support the Greater Golden Horseshoes economic competitiveness. In the Boards determination, OPA 73 implements these policies for new population and employment growth by planning for residential uses west of Leslie Street and for a new employment district east of Leslie Street. Further to point h), which calls for complete communities that provide a diverse mix of land uses, both the Town and the AuroraLeslie Appellants can make a case that each is capable of building a complete community, but OPA 73 best balances the long-term requirements of the Town for both population and employment insofar as the broad Aurora 2C lands are concerned, creating a community that reflects what the Growth Plan requires a diverse mix of land uses, a range and mix of employment and housing types, high quality open space and easy access to local stores and services. Section 2.2.6.2 a) and b) all promote an appropriate mix of employment uses including industrial, commercial and institutional uses to meet long-term needs and OPA 73 meets this policy through the Business Park designation for the Aurora-Leslie lands, which are a component of the broader Area 2C lands in the Town of Aurora. The Board determines that OPA 73 conforms generally to the broad objectives of the Growth Plan and specifically to the aforementioned policies. The Towns planners opined that all of the principles and policies contained in the 2005 Provincial Policy Statement (PPS) have been enshrined in OPA 73 with various examples of Regional phrasing and language carrying over into this Secondary Plan: promoting:
an efficient land use development and land use patterns which sustain the financial well-being of the Province and the municipalities over the long term; and accommodates an appropriate range and mix of land uses including both residential and employmentuses to meet long term needs.

- 18 -

PL090606 PL110191

In the Boards determination, the Town has balanced the critical land use mix aspect of the PPS. Considering Employment Areas (1.3) and Housing (1.4), OPA 73 accomplishes this mix by locating the new residential community west of Leslie Street and the new employment area east of Leslie Street. The Aurora-Leslie Appellants have suggested a dividing line between uses at First Commerce Drive and were the Board to have permitted residential uses, the Board deemed that delineating roadway to be both workable and appropriate. However, as the Board has determined that in the planning context, all-employment uses for the Aurora-Leslie lands are justified, there is nothing inherently inappropriate or wrong for the Town to use Leslie Street as the boundary line to define the different land uses west of Leslie Street. Further, the Town has always considered the Area 2C lands in the context of a whole, allocating residential uses west of Leslie Street and employment uses alone east of Leslie Street. In the Boards determination, the Appellants have furnished no persuasive evidence to show why this approach is neither appropriate nor desirable. In the Boards determination, this approach provides for a logically planned area and provides for land use compatibility between conflicting land uses. Mr. Butler was very precise about the utility of this connection and how it contributes to the spirit of the PPS policies:
The lands immediately east of Leslie Street can provide a transition form of land use that can serve primarily the needs of the employment area, and to some degree the residential area west of Leslie Street, through employment uses including commercial, institutional and ancillary uses, and can provide appropriate buffering for land use compatibility.

Policy 1.7 provides that long-term economic prosperity should be supported by optimizing the long-term availability and use of land, resources, infrastructure and public service facilities. This policy also directs that major facilities including industry are appropriately designed, buffered and/or separated from sensitive land uses to prevent adverse environment effects. While the Board agrees that were residential uses to be permitted, there is every indication that the Appellants could achieve this policy by creating appropriate buffers of the two uses at First Commerce Drive but in the Boards determination, OPA 73 best achieves this policy directive by employing the Business Park designation. In the Boards view, OPA 73 provides the best community plan for the entire Aurora 2C lands that will ensure the fullest range of employment uses will be explored as well as the long-term compatibility with residential uses located west of Leslie Street.

- 19 -

PL090606 PL110191

Also relevant to the Boards determination is Section 1.3.2:

Planning authorities may permit conversion of lands within employment areas to non-employment uses through a comprehensive review, only where it has been demonstrated that the land is not required for employment purposes over the long term and that there is a need for the conversion.

In these early days of OPA 73 and the Towns efforts to designate lands in a manner that meets its long-range planning goals, the Board determines that the Town should be afforded a full opportunity to test its theories regarding employment uses, and this section of the PPS provides an opportunity for the Town to re-visit OPA 73s proposed Business Park 1 designation of the lands east of Leslie should it deign to explore a possible future conversion of these lands for uses other than employment. For now, the Board supports OPA 73s all-employment direction for the Aurora-Leslie lands and this policy provides the latitude the Town of Aurora requires. The Board determines that OPA 73 conforms to the relevant policies of the PPS and has the above-referenced policy at its disposal as it looks to the future. The Board also reviewed OPA 73 in the context of the in-force York Region Official Plan as well as the new, York Region Official Plan. Policies related to Economic Vitality (especially Policy 3.3), Housing, Regional Structure and Growth Management (especially Policy 5.2) and others were reviewed. The Aurora 2C lands were added to the Urban Area of the in-force Regional Official Plan through ROPA 53. These lands are the last to be brought into the Urban Area of the Town and Region, and while the Regions Official Plan does not designate specific land uses, OPA 73 clearly provides specific land use policies and designations to guide future urban development. As for the new, York Region Official Plan, OPA 73 achieves the direction employed in Chapter 4, Section 4.3 regarding Protecting Employment Lands, ensuring the long term supply and effective planning and design of employment lands. In the Boards determination, when assessed against the 20 policies of Regional Council surrounding the protection of employment lands and strategic employment lands, and the need for policies that prohibit conversion of employment lands to non-employment uses, OPA 73 best achieves the direction by designation the Aurora-Leslie component of the broad Area 2C lands for employment uses alone. The Board also determines that OPA 73 follows the new Plans policies for forecasting and phasing growth (Section

- 20 -

PL090606 PL110191

5.1), doing its part to meet the Plans objective to ensure that growth in York Region occurs in an orderly and sustainable manner, using a land use planning horizon of 2031. In this context, the Board determines that OPA 73 conforms to the policies of the in-force York Region Official Plan and the under-appeal new, York Region Official Plan. In respect of the in-force Town of Aurora Official Plan, the Board determines that OPA 73 achieves the broad goals outlined in Part One (Vision) of this Plan. As economic development is essential to the future of the Town, OPA 73 achieves the Towns objectives A through E and Section 3.01: The Town will ensure that the three key components of its Economic Development strategy are followed by recognizing the following policies, which include such things as Designating appropriate lands for employment uses within the Town to provide for a short and long term supply for business development opportunities in Aurora. The general policy themes related to employment areas, including policies that are intended to protect/retain designated employment lands, are also maintained through OPA 73, with its designation of Business Park across the Aurora-Leslie lands. Also notable is Section 3.3.4.1, which states: It is the policy of the Town to protect and preserve the employment areas It was evident to the Board throughout the course of the hearing, as well as in the comprehensive review process of the Aurora 2C lands in total, that the Town clearly recognizes the importance of protecting its employment land supply. Through OPA 73, the Town of Aurora has demonstrated a cautious but well-thought-out approach to the pressure exhibited by private landowners such as the Aurora-Leslie Appellants for the re-designation of employment land to other urban uses. No doubt such pressures will continue. Evidence was presented by the Town that its supply of vacant land is becoming constrained for all types of urban uses, necessitating strong policies that protect the retention of employment land supply. The Board determines that OPA 73 achieves the desired policy direction contained in the in-force Town of Aurora Official Plan. While serving as an amendment to the in-force Official Plan, the Board also reviewed OPA 73 in the context of the relevant policies of the new Town Official Plan. Mr. Butler opined that while the new Official Plan has yet to achieve statutory planning status, it still serves as an important blueprint to implement the Towns own growth management work as well as the new, York Region Official Plan and the Growth Plan.

- 21 -

PL090606 PL110191

It represents the current expression of Council policy and the Towns most current planning direction. Since the Town completed its review of its entire Official Plan in the context of the same growth management and planning process, the Board accepts as persuasive evidence that OPA 73 has been prepared in the context of the updated Town planning policies, mindful of the requirements of the Growth Plan. The Board accepts as persuasive Mr. Kyles expert opinion that OPA 73 constitutes a full, formal, document, research-based integrated and comprehensive Secondary Plan for the Area 2C Secondary Plan lands. The Board determines that OPA 73 builds upon a solid foundation of growth management studies and policies of the Town, the Region and the Province, which has resulted in a secondary plan that best represents the Towns long-term vision for protecting and preserving its supply of employment lands in a manner that is consistent with all of the applicable policies. While the Parties disagree on the application of numbers to guide future population and employment numbers, the Board was persuaded by both the Towns and Regions witnesses that the lower numbers should be utilized (as reflected in OPA 73), and that the precepts of good planning require the Board to give latitude to the Town to implement its new Secondary Plan and to engage in a process of monitoring and testing its assumptions in the years as they relate not only to the Business Park designation for the Aurora-Leslie lands but in the broader context of the Provincially-directed Growth Plan to the year 2031. For all of these reasons, the Board determines that the Town, supported by the York Region, has developed a comprehensive secondary plan that is fully supported by all of the relevant planning instruments and is in the public interest insofar as the Aurora-Leslie lands are concerned. The Board determines that OPA 73, a Secondary Plan for the Town of Auroras in-force Official Plan, represents good planning and is in the public interest. The Board orders dismissal of the appeals of Aurora-Leslie Developments Inc. and the Board approves the Town of Auroras Official Plan Amendment No. 73 for the Aurora 2C lands.

- 22 -

PL090606 PL110191

The Robert G. Sikura Appeal Where the Town of Aurora has succeeded in demonstrating persuasively that OPA 73 conforms to all of the relevant policies of the planning documents, and that there are no good grounds for supporting planning reasons to permit residential uses on the Aurora-Leslie lands, the Town has not provided the persuasive planning rationale for designating all of the Robert G. Sikura lands for employment uses only. The Sikura lands are situated at 1756 St. Johns Sideroad, in the northeast corner of the 2C Secondary Plan area. The lands are situated directly south of the Town of Newmarket and west of Highway 404, on the north side of St. Johns Sideroad and east of Leslie Street. The property comprises 19 hectares and is bisected by a natural feature, comprised of a creek (the north tributary Weslie Creek), a marsh and a vegetated corridor, which all serve to create the north and south parcels of the Sikura lands. As mentioned at the outset of this Decision, OPA 73 proposes to designate all of the Sikura lands as Business Park (by means of a Business Park Interface Overlay Designation) on the developable portion and Environmental Protection Area (EPA) along the existing natural heritage feature. OPA 73 also proposes the construction of a diagonally-directed, minor collector road crossing of the EPA Designation that would serve to link the north and south Sikura parcels. Development of this Appellants lands will entail removal of the current agricultural use and existing farm crossing of the watercourse. The Appellant supports the Towns Business Park 1 designation on the south portion of its lands but it opposes that designation for the north parcel. The Appellant proposes an Urban Residential designation on the north parcel instead of that proposed Business Park designation. The Appellant also opposes the proposed diagonal minor collector road crossing of the EPA designation. The north parcel of the Sikura lands has a developable area of approximately 6.9 hectares and is adjacent to the Town of Newmarkets large Cedar Manor Homes subdivision. The Appellants north parcel is proposed for residential uses that would accommodate 125 dwelling units, representing a population of approximately 370 persons.

- 23 -

PL090606 PL110191

Counsel for the Appellant, Mr. Halinski, argued that the Town and Region can succeed only if the Board finds that an additional 6.9 hectares of employment land (the north parcel) is indispensable and cannot and ought not to be made up through employment intensification in the built-up area. The Board finds persuasive Mr. Halinskis submission that while supportive of the Aurora-Leslie appeals, the Sikura case is not inextricably linked to those appeals and they do not rise and fall together. In this regard, the Board has provided its separate Order based on its review of the evidence furnished by all of the Parties. The evidence before the Board bears out Mr. Halinskis submission. As he told the Board, the Town of Aurora commissioned Hemson Consulting Ltd. to produce two planning reports: Strategic Directions for Aurora (2003) and Planning Justification for Urban Designation of the 2C Lands (2006) (the latter report being part of the justification for bringing the 2C Area into the urban boundary at the Regional level). The 2003 report noted that the preferred option should consist of residential uses west of Leslie and employment uses between Leslie Street and Highway 404. As a main issue was the northern boundary of employment uses, a modified Option 3C was selected as the preferred option, which proposed employment uses north of St. Johns Sideroad up to the environmental feature with the remaining parcel of land to be residential and integrated with the future residential area to the north in the Town of Newmarket. As per the 2003 report, the preferred option showed the north Sikura parcel as residential and the Town Council adopted the 2003 Hemson recommendations that year. The updated report that Hemson delivered in 2006 supported and justified the inclusion of the 2C area in the urban boundary and confirmed the findings and recommendations of the 2003 report. The Cole Engineering report, Servicing Study for the 2C Area of the Town of Aurora, was prepared at the time of the 2006 Hemson Report and spoke to the north Sikura parcel:
If these lands were ever to be developed, road access would not be practical or cost effective across the tributary watercourse and such road, sanitary and water service could best be provided from the Town of Newmarket if adjacent Newmarket lands were to be developed.

- 24 -

PL090606 PL110191

The Board notes that Town Council adopted this report in June 2006 and to date no other servicing work has been conducted in support of OPA 73. The Town also commissioned North-South Environmental Inc. (North-South) to carry out a comprehensive study of the environmental features of the 2C Area to provide input to a future secondary plan (Exhibit 44). In respect of the north tributary that bisects the Sikura lands, this report, A Natural Heritage Evaluation for the NorthEast Aurora Planning Area 2C (North-South Report) concluded on page 45:
Weslie Creek and the north tributary provide the best fisheries habitat on the 2C lands. This system provides good quality fish habitat through a wide, wellvegetated corridor. The main branch of Weslie Creek, below the concrete dam, provides the highest quality aquatic habitat on the Aurora 2C lands. Weslie Creek upstream of the dam, and the north tributary, although slightly lower in quality, still provide fish habitat. Further, these two areas are important contributors to the linkage function of the downstream reaches.

The report noted that both the Ministry of Natural Resources and the Lake Simcoe Conservation Authority consider the north tributary to be coldwater fish habitat (pages 39 and 45), a point with which the Towns current environmental consultant, David Stephenson, agreed. The North-South report identified three areas in the 2C Area that present opportunities for service and road crossings of the Natural Heritage System:
These potential crossing areas consisted of relatively narrow drainage swales vegetated with common, adaptable native and non-native species that are more likely than other parts of the NHS to be resilient to disturbance (i.e., the vegetation is likely to grow back in a similar form after disturbance).

In Exhibit 44, page 68, the report went on to consider crossings of the Natural Heritage System:
Notwithstanding the identification of these potential crossing areas, crossings of the NHS should be avoided if possible. If deemed necessary, crossings should be limited to one in each area, at the least sensitive point. The need for crossing points should be re-evaluated once development concepts have been produced. The crossing should disrupt the smallest area possible. Services, roads and other linear rights-of-way should be combined wherever feasible to minimize the number of areas of disturbance. Crossings could disrupt surface flows and linkages, cause disruption of fisheries habitat, cause increased mortality of species vulnerable to road killand fragment and contaminate wetland habitat.

- 25 -

PL090606 PL110191

The report also identified potential impacts resulting from crossings of the Natural Heritage System. As Mr. Halinski submitted, this passage from the North-South Report makes it clear that the interpretation advanced by the Town that the three crossings were meant to constitute a starting position with more crossings to be identified as necessary is not supported by the language of this report. He submitted that the report cautions that, despite the identification of three opportunities, even those crossings should be avoided if possible and if impossible, then those crossings should be limited to one point in each area in order to disrupt the smallest area possible. The Board also notes that none of these identified crossings include any of the Sikura lands. The Board finds Mr. Halinskis submission on the interpretation to be given the NorthSouth position on the three crossings to be a logical, reasonable and persuasive interpretation of that documents recommendation, and no persuasive opposing evidence was introduced to counter this assumption. Further, the North-South Report provided a series of specific policy recommendations and language in Section 7.0 of this document Policy Recommendations, which were to be incorporated into the future secondary plan for the 2C study area. Policy recommendation 7.1.3 addresses the Natural Heritage System. Policy 7.1.3(i) generally discourages crossings of the Natural Heritage System and identifies the only three permissible crossings as per the report. The remaining six subpolicies provide further direction on how, if a crossing is to be considered, it will address the environmental, natural heritage and related issues on lands that form part of the Natural Heritage System. At this juncture, the Board will address this Appellants submission (as the Aurora-Leslie Appellants had submitted) that the Town had allegedly predetermined its position that the OPA 73 Steering Committee process was to protect the Highway 404 corridor for employment lands. As stated earlier in this Decision, after reviewing all of the evidence before it, the Board accepts that one of the assumptions guiding the OPA 73 Steering Committee process was that there shall be only employment lands east of Leslie Street. However, the Appellants have furnished no persuasive evidence to suggest that this is a wrong approach. It may thwart their desire for residential uses east of Leslie Street but there is also no evidence to suggest (as this and the AuroraLeslie Appellants argued) that there is anything inherently incorrect or flawed in the

- 26 -

PL090606 PL110191

Town desiring only employment uses from the outset and that its process was guided by a plan to designate the lands east of Leslie Street to Highway 404 for employment uses only. While this objective might run counter to the private appeals and general appeals against OPA 73, the Board determines that it is entirely within the Towns discretion and purview to determine, guided by the overall growth experiences of Aurora uniquely the Towns own as well as by upper-tier planning policy, direction and ultimately, instruments, that employment uses best serve the Towns needs at this juncture of its medium and long-term planning based on the comprehensive review and assessment process that preceded and fed into OPA 73. The Board will not interfere with that long-term vision, particularly where its mechanism OPA 73 conforms to the relevant policies of the upper-tier planning instruments. In this regard, the Board discovered nothing in its extensive review of the evidence to suggest that a desire for only employment lands offends the upper-tier planning instruments or should be taken as somehow prejudicial or unfair to the Appellants. The evidence before the Board does not support such claims and little weight is given to those submissions. Having made this determination, the Board then had to determine whether, in the course of pursuing employment uses on all of the lands east of Leslie Street, the Town of Auroras OPA 73 policies facilitate a Business Park designation for the north Sikura parcel or whether its overlay designation violate any of this Amendments policies. The Board turned its attention to OPA 73 (Exhibit 15, Tab 7) and conducted its review of the Amendment, in particular by testing the Towns proposed Business Park designation for the north Sikura parcel as well as the conceptual minor collector road crossing of the EPA designation against the uncontested environmental policies contained therein. In this regard, Section 2.2(d)(iii) promotes the conservation of Natural and Cultural Heritage features and sets out, as one of the guiding principles of the 2C Secondary Plan, that:
protection of woodlands, watercourses and wetlands is paramount in ensuring a lasting natural and heritage legacy for the Town of Aurora. Development shall take an approach that minimizes road crossings, reinforces the protection of the natural landscape, recognizes and supports connected and contiguous natural systems and has the potential for restoration.

Section 3.2.2(c) (the Environmental Protection Area Designation policies of the section on the Area 2C Greenlands System) speaks to the protection of natural heritage

- 27 -

PL090606 PL110191

features and indicates that the Environmental Protection Area and associated policies are designed to identify, protect and enhance the natural heritage features and functions that will form a strong and permanent component of the broader Area 2C Greenlands System. The Board finds persuasive Mr. Halinskis submission that the proposed crossing must satisfy this test. The Towns proposal through its OPA 73 document to build a crossing does nothing to protect and enhance the natural heritage features and functions of the Sikura lands and this environmental policy is offended. Flowing from that direction, Section 3.2.2(d)(iv) states that infrastructure, including roads, is not a permitted use in the EPA designation unless the need for the facility has been demonstrated through an Environmental Assessment (which has not been established) or other similar environmental approval or planning approval and there is no reasonable alternative. In the case at hand, Mr. Halinski submitted that the purported need is driven by the proposed employment designation, rather than transportation planning considerations. The Board is mindful that a reasonable alternative in fact exists in the form of a connection from this northeast parcel onto the abutting Cedar Manor Homes subdivision (Town of Newmarket). In respect of Policy 3.4.2 on the Business Park Interface Overlay Designation, the Appellant contends that this designation of the north Sikura parcel would seriously narrow the effective range of permitted uses on that land and would result in the need for buffering and mitigation measures to shield the sensitive residential uses to the immediate north (the abutting Cedar Manor Homes subdivision in the Town of Newmarket). Mr. Halinski submitted that this would result in an inefficient, sub-optimal and not cost-effective use of land, compared to the proposed Urban Residential designation. He added that inasmuch as this limited employment parcel would require a purpose-built, specially-engineered road connection from the south portion of the Sikura lands, it also does not constitute a cost-effective or efficient use of infrastructure. Planner David Charezenko provided his expert planning opinion that sustaining the natural environment and wisely using physical resources can be best served in the case of the Sikura lands by eliminating the Towns proposed crossing of the Natural Heritage System on these lands. He opined that designation of the north parcel of the Sikura lands for residential use responds most appropriately to the particular circumstances of the Sikura lands. It was his expert opinion that a reasonable

- 28 -

PL090606 PL110191

alternative to connect the north parcel of the Sikura lands to approved residential lands in the Town of Newmarket should be preferred to the unwarranted and uneconomical proposal to cross the intervening natural heritage features of the Sikura lands simply to justify an OPA 73 Business Park designation thereon. The emerging residential area in the Town of Newmarket immediately north of and abutting the Sikura lands (the Cedar Manor Homes subdivision) offers an opportunity for the north parcel of the Sikura lands to compete a contiguous residential land use pattern along the Leslie Street Corridor (Exhibit 43, Tabs 2C and 2E). The Board notes that advance and preceding planning processes for the Cedar Manor Homes subdivision, in concert with the full participation of the Towns of Aurora and Newmarket, provided for a connection from this large subdivision to the abutting north parcel of the Sikura lands, which, in the Boards determination, completes the prevailing land use pattern in this area. Neither the Town nor the Region offered persuasive evidence to challenge that assumption. The Town of Newmarket Staff Report on the Cedar Manor Homes subdivision application is also instructive in respect of the position of the Town and the Region in respect of the connection:
The Town of Aurora have [sic] provided comments that indicate there is a parcel of land in their 2C Planning Area that appears to be landlocked due to the presence of a watercourse and Auroras Natural Heritage System. This parcel directly abuts the south east area of the proposed draft plan. Both the Town of Aurora and the Region have requested that this plan provide a potential future access to the lands in Aurora. This has been accommodated by extending Street 11 to the south boundary which terminates at a 0.3 metre reserve . The Region have [sic] indicated in discussions that they would like to see a midblock collector road from this proposed subdivision to St. Johns Sideroad in Aurora. Staff in both Aurora and Newmarket have indicated that this type of connection would not be desirable nor feasible due to the environmental constraints and the potential undesirable traffic infiltration (Exhibit 43, Tab 1J, page 199).

The proposed connection to the Cedar Manor Homes subdivision has been agreed to by the Town of Newmarket. In fact, the evidence shows that the connection was requested by the Town of Aurora in 2008 because of a concern that the north Sikura parcel could become landlocked and was required by the Town of Newmarket

- 29 -

PL090606 PL110191

when it approved its large residential subdivision in 2008 (Exhibit 43, Tab 1J, page 199 and Tab 1K). Moreover, a return to the Business Park Interface Overlay Designation policy of OPA 73 necessitates in Policy 3.4.2(c) that: The lands subject to this overlay designation shall be developed in a manner that creates a compatible interface condition with the properties to the north in Newmarket. In the Boards determination, the extent of on-site buffering and mitigating measures that would be required for employment uses is inconsistent with the broader upper-tier documents directions for optimizing lands for their best uses, seeking efficiencies in land uses and actually disrupts the completion of the prevailing land use pattern in this area, which is identifiably residential uses on the much larger Cedar Manor Homes subdivision abutting the north Sikura parcel. The Board finds that the Town of Aurora has not raised valid planning concerns or demonstrated a compromise to public interest if the Appellant is permitted to use the existing, available alternative connection to the north, which is already in place, as opposed to the Town building a new crossing over an existing natural heritage feature simply to connect a single land use. As Mr. Halinski argued, it is important not to confuse individual municipal interest with the public interest. The Towns concern regarding property tax, development charges, snow clearing arrangements and similar issues as discussed at the hearing do not constitute planning arguments and these cannot be the basis for serious consideration or significant weight by the Board to a finding that a crossing of the natural heritage feature and EPA-designated lands should be approved. Moreover, Provincial policy is clear that planning across municipal boundaries is encouraged and as evidenced at this hearing, such planning is already in practice between the Towns of Newmarket and Aurora. An intra-municipal option has been identified and exists and in accordance with OPA 73 policy, it should serve as the reasonable alternative to crossing the EP designation and offending OPA 73s environmental policies. Broad planning principles suggest that in determining the appropriate land use, eliminating the potential for land use conflicts is critical to support the health and sustainability of society. The Board accepts as persuasive Mr. Halinskis submission that the future residents of the emerging residential community in the Town of

- 30 -

PL090606 PL110191

Newmarket are best served by a compatible Urban Residential designation on the north parcel of the Sikura lands. In this regard, the Board determines that the Urban Residential designation constitutes good planning that respects the future needs of area residents by maintaining two similar and like designations in direct relation to one another. This type of planning is, in the Boards determination, in the public interest and is preferable to approving a Business Park designation on the north Sikura parcel. The Appellants expert witnesses provided additional persuasive evidence for designating the north parcel as Urban Residential: it is the most compatible land use option in respect of the abutting Town of Newmarket residential subdivision; as no buffering is possible on the Cedar Manor lands, all of the setbacks and mitigation measures from potential employment uses on the north Sikura parcel would have to be accommodated on that same parcel, thereby limiting the size and scope of uses; and the proximity of employment and residential uses abutting one another can also eliminate a range of uses and limit the attractiveness of the land for prospective business uses to a smaller range of businesses. Mr. Butler provided this evidence and it was unchallenged, adding: It is effectively limiting it [the land] to a few defined uses. It is different than what the Town wants to achieve. The Board was reminded by all Parties throughout the hearing that the municipal review process that brought the 2C Area lands into the York Region Urban Area (via ROPA 53) and up to the proposed OPA 73, had always preferred an Urban Residential designation of the north parcel of the Sikura lands. The Board accepts as persuasive Mr. Halinskis submission that there is no reason to depart from the consistent and appropriate direction of that planning process. It is thus incumbent upon the Appellant to show, as it has shown, why employment uses are not appropriate on the north parcel of its lands and why the Urban Residential designation should be preferred. In this context, the Board also determines that like all municipalities across the Province, the Town of Aurora is free to make its long-term planning decisions in a manner that might depart from previous decisions or earlier planning processes, so long as they are guided by sound planning principles. The Towns decision in this case is to instead designate the north Sikura parcel as part of the broad area of employment uses contemplated for all of the lands east of Leslie Street where previous reports, such as that of Hemson Consulting, recommended residential uses on this subject parcel. In

- 31 -

PL090606 PL110191

doing so, the Towns decision conflicts with the development preferences and aspirations of this and the Aurora-Leslie Appellants. In such situations, however, as in this case, it is incumbent upon the Town to be mindful of the policies contained in its own OPA 73 instrument (which provide clear and detailed policies to guide decisionmaking processes in respect of the Natural Heritage features on the Sikura lands and the Environmental Protection Area designation) to show persuasively why the Municipality should be free to depart from its own policies by permitting a crossing over an EPA designation on the Sikura lands to achieve a Business Park designation on the north Sikura parcel, especially where OPA 73s policies do not support such a crossing. More specifically, the Town must show how its proposed designation, which includes a minor road collector crossing across the Natural Heritage feature to service employment uses, will not offend the OPA 73 policies. On this latter point, the Board has analyzed and considered the Towns position and the overlay designation in the context of the relevant environmental policies of OPA 73 as well as the broad direction given by the upper-tier planning instruments and finds that it is problematic in respect of the aforementioned policies. The under-appeal planning instruments environmental policies are, as cited above, instructive in respect of the proposed crossing of the Sikura lands Natural Heritage feature and that there is a need to preserve what exists and that it is not compromised with a road crossing. As the Sikura lands are bisected by an Environmental Protection Area designation, these OPA policies must be considered. Section 2.2(d)(iii) states:
The protection of woodlands, watercourses and wetlands is paramount in ensuring a lasting natural and cultural heritage legacy for the Town of Aurora. Development shall take an approach that minimizes road crossings, reinforces the protection of the natural landscape, recognizes and supports connected and contiguous natural systems and has the potential for restoration.

In the Boards determination, the Towns proposal for a crossing of the Natural Heritage feature to facilitate a Business Park designation on the north parcel also offends this policy. In this case, the Town has not established in any persuasive way how, with the wide swath of land east of Leslie Street available to it for employment uses (a position

- 32 -

PL090606 PL110191

the Board in fact supports), including the large south parcel of the Sikura lands, its desire for employment lands is somehow compromised or its long-term planning goals are thwarted by designating a rather small and isolated north parcel of the Sikura lands as Urban Residential instead of for employment uses. No such evidence was adduced at the hearing. Moreover, in the overall context of OPA 73, the north Sikura parcel creates a unique situation as far as the lands east of Leslie Street are concerned in the Boards determination; that is, given how the EPA designation effectively cuts off the Sikura lands north parcel from the south parcel with its proposed all-employment uses. In the Boards determination and in respect of this OPA 73 policy, if the Town is going to designate the north Sikura parcel for employment uses, and in particular, if it alleges that it needs the land (Section 3.2.2(d)), then it must demonstrate that the designation and the physical linkage can be made without offending the policies of the very planning instrument challenged at this hearing. Given the Boards preference to allow the Town to pursue its vision of all-employment uses east of Leslie (a process that the Town can review periodically in the future as provided for in the planning instruments), the Board had to be satisfied that the Towns vision for the north Sikura lands is supported by the relevant OPA 73 policies. By contrast, the Appellant has demonstrated persuasively through relevant planning policies that a crossing of the EPA designation to facilitate a Business Park designation on this north Sikura parcel is inconsistent with OPA 73s environmental policies, does not represent good planning and is not in the public interest. By extension, the Board had to examine the appropriateness of employment uses on the north Sikura parcel, cut off as it is from the balance of all southerly proposed, employment-designated lands east of Leslie Street and situated in immediate juxtaposition to an exceptionally large, developing residential subdivision with no requirement for buffers and with an alternative crossing already available as agreed to by the Towns of Aurora and Newmarket. This then takes the Board back to the second component of Section 3.2.2(d) of OPA 73, and the fact that there already exists a reasonable alternative to constructing a crossing over the EPA-designated land. As evidenced, a connector has already been put in place between the north parcel and the Cedar Manor Homes subdivision achieved through the input and cooperation of the Towns of Aurora and Newmarket. The very large and expansive residential subdivision abuts the isolated north Sikura parcel and provides a connection that is the reasonable alternative and supports placing

- 33 -

PL090606 PL110191

a residential designation on the north parcel. All witnesses agreed that it would not be appropriate to have commercial and similar employment-supportive vehicles traversing the residential subdivision to the north through the existing connector (were the Town to designate the north parcel for all-employment uses and were the Board to prohibit the minor road collector crossing). The Board notes that a road connection to the south means traversing the EPA-designated lands, thereby offending this and other OPA 73 environmental policies. The reasonable alternative stated in this policy (Section 3.2.2(d)) is in fact the better alternative in the case at hand; that is, an Urban Residential designation on the north Sikura parcel that is entirely supportable and appropriate in the context of the topography of the Sikura lands and to uphold the environmental policies of OPA 73. The fact remains that this isolated parcel is situated in immediate proximity to a vast, developing residential subdivision. The earlier-cited documentary references show that the Town had already contemplated residential uses (with recommendations made for that use as well) for this isolated parcel as well. Evidence provided at the hearing shows that where significant buffering and mitigating measures would be required to protect the Cedar Manor Homes residential subdivision from abutting employment uses, little or no buffering or mitigating measures will be required for likesituated uses (residential to residential), enabling the Appellant to develop the north parcel in a consistent and compatible fashion and to the fullest extent possible. The Board determines that such development along the lines of a small residential subdivision also does nothing to offend the Town of Auroras long-term plans for allemployment uses on all of the south Sikura lands as well as on the much larger AuroraLeslie lands further south. Further, the flexibility of the Town to consider the appropriateness and viability of OPA 73 through active monitoring and study in the years ahead safeguards the Towns secondary plan with this small northeast parcel designated for Urban Residential uses as outlined. In summary, the Towns proposed road crossing of the EPA designation and its natural feature on the Sikura lands is inconsistent with the applicable OPA 73 policies as cited above and the Appellant has made a highly persuasive case, borne out by planning policy and expert opinion, that employment uses on its north parcel do not represent good planning, that an Urban Residential designation on the north parcel is preferable and represents good planning, it is in the public interest and it does not

- 34 -

PL090606 PL110191

offend the relevant OPA 73 policies nor any of the upper-tier planning instruments referenced in this lengthy hearing. Just as the Board stated in this Order that the Town must be mindful of the OPA 73 environmental policies in proposing all-employment uses on the north Sikura parcel, the Board also assessed other aspects of the Appellants rationale for placing an Urban Residential designation on the isolated north parcel. In such situations, as in this case, the Appellant has shown persuasively, in a planning policy context, how the Business Park designation is not appropriate on its north parcel of land and why a residential designation should be preferred to a Business Park overlay. Through its witnesses and Mr. Halinskis submissions, the Appellant has also demonstrated persuasively how the proximity of the lands to the Cedar Manor Homes subdivision and most importantly how the environmental policies of OPA 73 effectively preclude a business park overlay on the north parcel, making the residential use supportable in the Boards determination. The Board also wishes to reference the evidence of Environmental Scientist (and Aquatic Biologist) Jennifer Harker and Wetland Ecologist Ian Roul, both of whom appeared as experts in support of the Appellants appeal and who explained that while it is possible to engineer a crossing across environmentally sensitive lands, it cannot be a preferred solution from an environmental perspective for a number of reasons, which Mr. Halinski referenced in his submissions: The watercourse, wetland and valley feature represent an important part of the Natural Heritage System. The watercourse constitutes both seasonal and permanent coldwater fish habitat and is one of the designated natural heritage features listed in the PPS. The North-South report confirmed these experts conclusions (Exhibit 44, pages 39 and 45). The in-force Town Official Plan shows a Forest Resource Area at the point where OPA 73 proposes to place a collector road.

- 35 -

PL090606 PL110191

The watercourse and valley currently provide a corridor function for wildlife. The valley is well defined and contains natural communities within it.

Road crossings of natural heritage systems are known to have detrimental effects on them including direct mortality, contamination, loss of habitat and habitat fragmentation. While mitigation measures exist to lessen these impacts, they are unlikely to eliminate them. As a result, road crossings of natural heritage features should be avoided where possible. The valley and watercourse provide a linkage function that would be impaired if a crossing was built. The watercourse and valley feature on the east side of Leslie Street, north of St. Johns Sideroad, together represent an important ecological feature and that traversing it with a road crossing does not represent good planning from an environmental perspective. A road crossing of the natural heritage feature would have a net negative impact even with mitigation that may lessen the degree of that impact. Given that a reasonable alternative is available by linking the lands to the north, the alternative that does not cross the natural heritage system should be selected. Wetland communities are particularly sensitive to altered hydrology as a result of road crossings. Since most wetlands have a diffuse flow, it is difficult to maintain pre-existing conditions when constructing a road crossing. Road crossings in wetlands tend to create wetter up-gradient conditions and drier down-gradient conditions, both of which have detrimental impacts on the existing wetland community. The wetter up-gradient lands flood, resulting in a reduction in plant cover, while the drier down-gradient areas tend to transition to non-wetland communities. For this reason, road crossings through wetlands should be avoided, where possible.

The North-South Report identified only three potential crossings in the 2C Area, none of which is situated on the Sikura lands. The report further

- 36 -

PL090606 PL110191

recommended that of those three, only crossings that are necessary actually proceed (Exhibit 44, pages 66, 70 and 73). The Board also notes that the new (not in force) Town Official Plans Schedule E shows Significant Forest and Watercourse features on the Sikura lands while the new (under appeal) Regional Official Plan marks the lands as part of the Regional Greenlands System on Map 2 and Regional Woodlands on Map 5, and depicts a Key Hydrologic Feature in the north tributary on Map 4. The Board also finds persuasive the Appellants position that the appropriate approach to the environmental features in the 2C Area is the ecosystem approach, which does not look at biological and landform features in isolation but also at the linkages between them in order to see and understand the system as a whole. Ms Harker has proffered this opinion in many other Board hearings and it notes that the ecosystem approach is in fact the preferred approach when assessing any area. She also stressed very early in her presentation that while negative impacts can be mitigated, they cannot be eliminated. This position was unchallenged by any persuasive opposing evidence and is accorded significant weight by the Board. Opposing witness David Stephensons evidence was that a crossing could create no net negative impact or potentially a net positive impact, assuming that the currentlyexisting farm crossing and the agricultural operation would be removed. As Mr. Halinski correctly pointed out however, those positive effects will occur irrespective of whether residential or employment uses replace the current rural uses, and those positive effects are independent of a crossing being constructed. Mr. Stephenson conceded that avoiding the crossing altogether would be preferable from an environmental perspective but he did not think this was a realistic possibility, given the proposed urbanization of the 2C lands. Nevertheless, the opposing evidence was not nearly as persuasive as the expert evidence proffered by the Sikura expert witnesses that the crossing should be avoided because of the environmental characteristics of the Sikura lands and OPA 73s recognition of the sensitivities of these lands through the EPA designation. Coupled with a full reading of the environmental policies of OPA 73, the Board determines that in its pursuit of employment uses on the north Sikura lands, the Town of Auroras proposal for a crossing and for employment uses on the north parcel run counter to and are inconsistent with the environmental policies of OPA 73. Accordingly,

- 37 -

PL090606 PL110191

the Board determines that both the Business Park designation and a proposed crossing of the EPA designation should not be permitted. Without such a crossing, the evidence then points persuasively to how the north Sikura parcel can be designated Urban Residential and connected to the abutting subdivision via the reasonable alternative connection for all of the aforementioned reasons. The scant and relevant elements of the traffic and transportation planning evidence that lends support to the Boards decision to designate the north Sikura parcel as Urban Residential are as follows: 1) a connection to the residential Cedar Manor Homes subdivision in the Town of Newmarket is desirable but not if the north Sikura parcel is designated for employment uses by virtue of the undesirable mixing of traffic; and 2) the existence of a reasonable alternative road connection through Cedar Manor means that the crossing is not a permitted use in the EPA designation pursuant to OPA 73 policy 3.2.2(d). The Board has set aside the urban design evidence, the evidence related to land economics and the balance of the traffic and transportation planning evidence and as provided for in these reasons, has centred its analysis on the Towns proposed crossing in the context of its OPA 73 environmental policies, and on the environmental aspects of the Sikura lands that impede the Towns desire to cross these environmentally sensitive and protected lands with a minor collector road in order to establish employment uses on this isolated parcel, which in fact abuts a very large developing residential subdivision. The Board deems the Environmental Protection Area designation to be just that an area worthy of protection that should not be compromised by the Towns proposed diagonal minor collector road crossing for the purposes of linking employment uses a linkage that comes at a cost to the important environmental features of the Sikura lands and an offence of the applicable and previously-cited environmental policies. Yet, the Town of Aurora has committed to such protections in the environmental policies that it has crafted for inclusion in its OPA 73. It makes no planning sense, therefore, and the evidence does not support the Towns purposive march to build a crossing of EPA lands to reach isolated north Sikura parcel in defiance of its own policies in order to achieve an all-encompassing Business Park designation for all of the Sikura lands.

- 38 -

PL090606 PL110191

For all these reasons, the Board allows the appeal of Robert G. Sikura against OPA 73 and it orders that the north Sikura parcel be designated Urban Residential. The Board withholds its Order in respect of this appeal pending receipt of the final form of OPA 73 that incorporates such modifications to the Schedules and text of OPA 73 that may be necessary in order to achieve the Urban Residential designation for the north parcel of the Sikura lands. The final version should be provided to the Board on or before Tuesday, November 1, 2011. Should difficulties arise, the Board may be spoken to for settlement of the final version of this planning instrument as they relate to the Sikura appeal. So Orders the Board.

R. Rossi

R. ROSSI MEMBER