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Local Planning Appeal Tribunal

Tribunal d’appel de l’aménagement


local

ISSUE DATE: December 06, 2018 CASE NO(S).: PL160775

The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning
Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or
Board in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O.


1990, c. P.13, as amended
Appellant: 2433263 Ontario Inc. & 6077315 Canada Inc.
Subject: By-law No. BL 2016-094
Municipality: Town of New Tecumseth
OMB Case No.: PL160775
OMB File No.: PL160775
OMB Case Name: 2433263 Ontario Inc. v. New Tecumseth (Town)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O.


1990, c. P.13, as amended
Appellant: 2433263 Ontario Inc. & 6077315 Canada Inc.
Subject: Proposed Official Plan Amendment No. OPA 51
Municipality: Town of New Tecumseth
OMB Case No.: PL160775
OMB File No.: PL160994

Heard: September 18-28, 2017 in Alliston, Ontario

APPEARANCES:

Parties Counsel

2433263 Ontario Inc. and C. Piersanti


6077315 Canada Inc.
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Ballymore Development J. Alati; A. Margaritis


(Tottenham) Corporation

Town of New Tecumseth J. Feehely

DECISION DELIVERED BY STEFAN KRZECZUNOWICZ AND ORDER OF THE


TRIBUNAL

INTRODUCTION

[1] These are appeals by 2433263 Ontario Inc. and 6077315 Canada Inc. (the
“Appellants”) of decisions by the Councils of the Town of New Tecumseth (the “Town”)
and County of Simcoe to approve an Official Plan Amendment (“OPA”) and zoning by-
law amendment (“ZBLA”) for a proposed redevelopment of lands in the eastern part of
the community of Tottenham (the “site”).

[2] The site forms part of a draft plan of subdivision and is owned by Ballymore
Development (Tottenham) Corporation (“Ballymore”). It is located north of Mill Street
East/4th Line and east of McCurdy Drive and is surrounded by roadway on all sides and
by newly constructed residential uses beyond. The dispute centers on a commercial
plaza, including a No Frills supermarket that Ballymore proposes to build on the site.

[3] The Appellants, who oppose the Ballymore proposal, share the same corporate
ownership and own commercial land at the north end of Tottenham as well as the
Tottenham Mall near the community’s downtown. The commercial land to the north
contains a Foodland supermarket. A Vince’s supermarket opened in the mall in 2017.
Vince’s refers to itself as a “specialty grocery store”. The Tribunal’s view is that, in this
case, Vince’s provides a supermarket function in Tottenham.

[4] As such, permitting a supermarket use at the Ballymore site would effectively
introduce a third supermarket to Tottenham.
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Witnesses

[5] The Tribunal heard evidence from numerous experts: three land use planners,
Paul Lowes, Adam Lucas, and Martin Rendle; and four retail market analysts, Audrey
Jacob, James Tate, Hermann Kircher, and Doug Annand. The Town’s Chief Building
Official, John Miller, and Justin Piersanti, owner and managing partner of the
Appellants’ companies, also testified.

[6] Stuart Starbuck, a longstanding resident of Tottenham, gave evidence as a


Participant.

The Applications

[7] The Ballymore site comprises Blocks 74 and 75 of a plan of subdivision that was
approved in the late 1990s. It is in a rapidly developing Secondary Plan area (OPA 11)
and has two land use designations: Corridor Commercial (Block 74) and High Density
Residential (Block 75). The OPA under appeal (OPA 51) would re-designate Block 75
as Corridor Commercial, making the entire site for commercial uses.

[8] Block 74 is zoned CC-1, which allows for 15,000 sq. ft. of “convenience
commercial” uses, of which up to 10,000 sq. ft. may be used by one user. Block 75,
though designated for high-density residential uses, is currently zoned for agricultural
uses. The proposed ZBLA would rezone both blocks to allow “shopping centre
commercial” uses, including a 60,000 sq. ft. commercial plaza anchored by a 22,500 sq.
ft. supermarket (the No Frills). This would quadruple the amount of permitted
commercial floorspace on the site.

[9] The ZBLA would also broaden the range of permitted uses (allowing, among
other uses, fitness centres, restaurants, and professional, financial and office support
services on the site), would reduce building setbacks and parking standards, and would
amend the definition of gross floor area (“GFA”) to facilitate the supermarket.
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Core Issues

[10] A Procedural Order of the Tribunal, prepared in advance of the hearing, identified
21 points of difference between the parties. These differences can be distilled into two
core issues:

a. First, does removing the high-density residential designation in Block 75


represent good planning?

b. Second, would introducing a third supermarket to Tottenham disrupt the


planned function of the Town’s commercial structure?

LEGISLATIVE TESTS

[11] In considering the OPA and ZBLA, the main adjudicative tests before the
Tribunal are whether the applications have sufficient regard to the Provincial interests
listed in section 2 of the Planning Act (the “Act”), whether they are consistent with the
Provincial Policy Statement 2014 (“PPS”) and conform to the Growth Plan for the
Greater Golden Horseshoe (“Growth Plan”) and, in the case of the ZBLA, whether it
conforms to the Town’s Official Plan (“OP”).

[12] The Tribunal must also have regard to the decisions of Town and County Council
on the applications and the information the Councils had when making their decisions.
In this respect, a detailed record of the application process, including the applications
themselves and their voluminous supporting documents, minutes of experts’ meetings
and public meetings, Town staff’s comments, reports, and recommendations on the
applications, and Council minutes were entered into evidence. All were carefully
reviewed by the Tribunal.
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REMOVING THE HIGH DENSITY RESIDENTIAL DESIGNATION

[13] The OPA would convert Block 75 on the Ballymore site from high-density
residential uses to commercial uses, in effect reducing the supply of land for medium
density and apartment dwellings in Tottenham (note that OPA 11 allows medium
density uses in High Density Residential Use designations).

[14] The PPS requires that municipalities provide for a range and mix of housing
types and densities appropriate for the needs of current and future residents of the
regional market area (in this case, the County of Simcoe). To achieve this goal, the
Growth Plan promotes the development of “complete communities” that, among other
features, have “a diverse range and mix of housing options”. OPA 11 accordingly sets
aside four hectares of land within the Tottenham Secondary Plan area for high-density
residential uses—about 3% of the total land area. Block 75 comprises roughly 37% of
these four hectares.

[15] Mr. Rendle’s view was that eliminating the high-density residential designation on
these lands would reduce the Town’s ability to contribute to the range and mix of
housing needed in the regional market area. Moreover, it would shift the burden of
accommodating higher density housing away from undeveloped “greenfield” areas of
Tottenham to already developed areas within the community’s “Built Boundary” (as
infill). This shift, in his opinion, would stymy efforts to attract high-density housing
because this kind of housing, particularly apartments, garners greater local opposition
and often requires complex planning approvals when developed as infill. An added
difficulty noted by Mr. Rendle is that there are currently no apartment development
proposals within Tottenham’s Built Boundary.

[16] Mr. Rendle also noted that the PPS encourages complete communities in
greenfield areas as well as within the Built Boundary; a full range of housing, including
high-density housing, is therefore required in both areas under the Provincial policy
framework.
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[17] Mr. Rendle’s views were supported by Mr. Starbuck, who has lived in Tottenham
for 35 years and has built homes in the community. In Mr. Starbuck’s opinion,
Tottenham lacks high-density housing for seniors and renters; the OPA therefore
removes a land designation that the community needs.

[18] In 2014, IBI Group prepared a High Density Unit Reconciliation on behalf of
Ballymore in order to study the effects of the OPA. Ms. Jacob authored the IBI study.

[19] The study analysed the supply and demand for high-density housing in
Tottenham to 2031, drawing on a development forecast in the Town’s Development
Charges Background Study to assess demand and IBI’s own analysis of land use in
Tottenham to assess supply. The results: there was at that time supply for 1,462 high-
density units in the community, including 905 units in greenfield areas (a maximum of
108 units on Block 75) and 557 units of infill supply within the Built Boundary; and there
was an overall demand for 941 high-density units in the community. As such, Ms. Jacob
concluded that Tottenham had an approximately 400-unit surplus of high density supply
with or without the Block 75 high-density residential use designation.

[20] Ms. Jacob updated her analysis in 2017, based on feedback received from Mr.
Rendle. However, her overall conclusion remained unchanged—Tottenham would still
have a healthy surplus of high density supply (379 units) in the absence of the current
designation on Block 75.

[21] The results of the IBI study are compelling. They demonstrate that the Tottenham
community in theory has the capacity to meet the long-term projected demand for high-
density units despite that demand being much greater than in previous years. This fact
should therefore temper Mr. Rendle’s misgivings about the Town’s ability to contribute
to housing targets on a regional basis and Mr. Starbuck’s concerns that the needs of
seniors and renters in Tottenham would be unmet be approving the OPA.
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[22] Moreover, the surplus capacity exists as both greenfield and infill supply. As
such, the Tribunal is not persuaded that converting Block 75 would drastically upset the
balance of high-density development opportunities in Tottenham. There remain, for
example, two other high-density sites in the greenfield with permissions for 204 units.
The Tribunal accepts Mr. Rendle’s contention that approving the OPA might make
achieving PPS housing policies and complete community goals more challenging.
However, that fact does not in and of itself mean that the Ballymore proposal is
inconsistent with those policies and goals. As Mr. Rendle testified: Tottenham can still
become a complete community, albeit less of one, with the Ballymore proposal.

[23] The Tribunal notes that a site with the same block configurations and land use
designations adjoins the Ballymore site. The owners of this site, B.G. Properties Inc.
(“BG”), support the Ballymore proposal and have expressed their desire to re-designate
their commercial lands to residential uses (see Exhibit 5). In June 2017, BG consulted
Town staff on a re-designation application. BG’s expression of intent, while not
determinative in the Tribunal’s decision on this issue, serves as a reminder that supply
and demand projections are somewhat moving targets in Tottenham. What is most
important is that the Town has a sufficient and flexible supply of land, together with the
planning instruments if necessary, to accommodate high-density proposals when and if
they arise. It is the Tribunal’s view that it does.

[24] In summary, the Tribunal finds that, notwithstanding the concerns raised by
Messrs. Rendle and Starbuck, approving the OPA would not jeopardize the land needs
for housing in Tottenham or in the Town, or indeed the ability to build complete
communities. Ms. Jacob’s analysis, which was detailed and thorough, demonstrates
that achieving the PPS objective of a full range and mix of housing options in Tottenham
and across the broader region does not depend on Block 75 being designated for high
density uses.
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ON THE NEED FOR A THIRD SUPERMARKET

[25] The Tribunal finds that introducing a third supermarket to Tottenham by


approving the ZBLA would not disrupt the planned function of the Town’s commercial
structure. Reasons for this finding are set out below.

Retail Policy Context

[26] The Town’s OP contains policies that seek to preserve downtowns as the retail
focal points for urban communities while ensuring that neighbourhoods have
commercial areas that meet the immediate retail needs of residents. Economic
development is given high priority in the OP and commercial competition is encouraged.

[27] In this way, the OP implements PPS policies that promote the vitality and viability
of downtowns and main streets as well as active transportation by, for example, making
it easy for residents of new neighbourhoods to walk to the grocery store. The OP
policies also contribute to creating the above-mentioned complete communities, which
under the Growth Plan are to feature “comfortable and convenient use of active
transportation” as well as “convenient access to local stores and services”.

[28] The OP establishes a commercial structure to achieve these objectives and


much of the hearing was focussed on the effects the Ballymore proposal would have on
this structure in the Tottenham context. Briefly:

a. The historic commercial core of Tottenham is its downtown, centred on the


intersection of Queen Street and Mill Street. The OP designates a Downtown
Core Commercial area around the downtown in order to, among other things,
“maintain and promote the downtown as the focal point for commerce…”.

b. A Downtown Core Transitional Area, extending away from the downtown


along major streets, is intended to reinforce the pre-eminence of the
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downtown by, in part, permitting small-scale commercial uses in what are


predominantly residential areas.

c. The remaining commercial lands in Tottenham are in five areas designated as


Corridor Commercial. The OP intends that these Corridor Commercial areas
be located, for the most part, at the community’s major access points
(gateways). They include the plaza owned by the Appellants at the north end
of the community; a small plaza on Queen Street north of the downtown; the
Tottenham Mall, just south of the downtown; the Ballymore/BG sites to the
east; and the Deer Springs plaza at the community’s south end. The OP
permits a broad range of uses, including retail uses, in these areas.

[29] The specific planned function of the Ballymore/BG Corridor Commercial area is
set out in OPA 11. The area is intended to “cater to the day-to-day convenience
commercial needs of residents of the Secondary Plan” and is not permitted to adversely
impact the centrality of the downtown in Tottenham’s commercial hierarchy.

[30] In order to appropriately distribute commercial uses between the downtown and
Corridor Commercial areas the OP requires that applications to develop large retail
uses in Corridor Commercial designations assess the impact of the proposed uses on
other similar uses in the downtown and elsewhere. Where appropriate, the assessment
is to take the form of a market impact study. OP Policy 5.3.3 states that:

The purpose of the market impact study shall be to determine whether a


proposal can proceed on the basis of market demand without having a
negative impact on the planned function of the commercial designations
contained in this Plan. It would not be the intent of the study to assess
the impacts of any proposal on the market share of an individual
business or interfere with normal market competition.

[31] OPA 11 further requires that any market impact study for a Corridor Commercial
development in the Secondary Plan Area address the need for any requested increase
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in GFA as well as any adverse impact on existing or planned commercial sites in


Tottenham.

Expert Testimony

[32] In evaluating the need for a third supermarket, the Tribunal has grappled with the
testimony of four experts in retail market analysis, each of whom undertook detailed
market impact analysis of the impact of the Ballymore proposal. In several instances, an
analysis went through several iterations and, while the points of difference between the
experts narrowed over time, the conclusions reached by Ms. Jacob and Mr. Tate remain
poles apart from those reached by Messrs. Kircher and Annand.

[33] The plethora of studies submitted into evidence includes:

a. A 2013 retail market analysis by Altus Group, submitted as part of the


Ballymore applications (the “Altus report”).

b. A 2014 peer review of the Altus report conducted by Kircher Research


Associates on behalf of the Town (the “Kircher peer review”).

c. A 2014 report prepared by IBI Group on behalf of Ballymore to address


concerns raised in the Kircher peer review (the “2014 IBI report”).

d. A 2016 update to the 2014 IBI report (“2016 IBI report”), based in part on
work undertaken by Tate Economic Research (the “Tate license plate
survey”).

e. A 2017 supermarket demand and impact analysis undertaken by Tate


Economic Research (the “Tate market analysis”).
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f. A 2017 review of all of the above by Doug Annand, of the firm Urban metrics,
in preparation for the hearing (the “2017 Annand analysis”).

g. A further update of the 2016 IBI report prepared prior to the hearing to
account for issues raised by the 2017 Annand analysis (the “IBI final
analysis”).

The Tribunal has thoroughly reviewed these studies in its deliberations.

[34] A few preliminary thoughts about the expert evidence is warranted. First, it is the
Tribunal’s firm view that the qualifications of the experts were unimpeachable; all four
witnesses are highly respected market analysts and each drew upon many years’
experience to support their testimony. Second, with a few notable exceptions, there was
broad agreement among the experts on how best to approach market impact analysis.
As such, the main areas of dispute were the assumptions made about retail market
dynamics in and around Tottenham rather than market impact analysis methodology.

[35] Finally, the Tribunal is mindful that, in agreeing with an expert’s position on a
highly technical matter, careful consideration of the assumptions used and an adequate
explanation for preferring one expert over another is required. The Tribunal understands
that expert assumptions, while informed in part by quantitative data such as surveys
and sales data, are also rooted in the judgement and experience of the individual (and
often to a significant degree). Ultimately, it is the Tribunal’s job to weigh the expert
evidence and, drawing on counsels’ submissions, to adopt its own judgement of how
the evidence affects the planning merits of the applications.

Areas of Agreement

[36] Prior to the hearing, three of the four retail market experts released an agreed
statement of facts which established:
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a. The trade area from which the major part of retail sales in Tottenham are
expected to come (Tottenham and the nearby community of Beeton). It is
noted that, in addition to the Foodland and Vince’s supermarkets in
Tottenham, there is a Foodland in Beeton.

b. 2031 population forecasts for Tottenham (13,100 people) and Beeton


(9,170 people).

c. The size of current and proposed supermarkets in the trade area.

d. The first full year of operation of Vince’s (2018) and No Frills (2020).

e. The current (2017) inventory of commercial space in Tottenham (252,000


sq. ft. in total), as well as the amount and location of permitted (80,000 sq.
ft.) and proposed (91,000 sq. ft.) commercial space in the community.

f. That the Tate license plate survey results were valid. It is noted, however,
that there was considerable disagreement on how the survey results could
be used to assume “inflow” (i.e. Tottenham shoppers coming from outside
the trade area).

[37] Mr. Kircher did not subscribe to the agreed statement of facts. In particular, he
was steadfast in his opinion that shoppers from Beeton, rather than forming part of the
trade area, should be treated as inflow. As well, he did not accept the validity of the Tate
license plate survey, testifying that because the survey showed a large number of
people coming from Alliston to Tottenham to shop and excluded the Alliston Walmart
from the analysis its methodology was flawed.

[38] While mindful of Mr. Kircher’s concerns, the Tribunal is not persuaded that the
overall conclusions of any of the expert analyses would be materially changed by
treating shoppers from Beeton as part of the trade area or part of the inflow. Moreover,
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the Tribunal is satisfied that the trade area and inflow assumptions adopted by the
experts ultimately sought to account for total sales by all shoppers in Tottenham stores.
No potential shopper or expenditure was wilfully or inadvertently missed.

[39] Mr. Kircher’s challenge to the validity of the Tate license plate survey is more
serious. However, part of his testimony—such as his view that the results were skewed
by the survey being taken on the day of a public parade in Beeton and a large funeral in
Tottenham—was not corroborated and remains, in the Tribunal’s view, somewhat
speculative. Having compared Mr. Tate’s reports and oral testimony to those of the
other experts, the Tribunal is satisfied that his survey methodology was in line with
industry best practices. As a result, the Tribunal finds that Mr. Tate’s results fall within
the normal and expected margin of error; and his survey is not therefore invalid.

[40] Mr. Justin Piersanti, although not a retail market expert, drew on personal
knowledge of the uses and leasing arrangements on the Appellants’ lands to challenge
the commercial inventory assumptions set out in the agreed statement of facts.
However, in at least one important aspect of his evidence—the number and size of retail
vacancies in the community—Mr. Piersanti’s information was found wanting: a
substantial amount of the total 13,400 sq. ft. of vacant space he identified appears to be
either temporarily unoccupied or unavailable for retail use.

[41] Ultimately, in considering the lengthy consultation, research, analysis, and


reanalysis conducted by experts Jacob, Tate, and Annand in preparing for the hearing,
the Tribunal has accepted the agreed statement of facts in reaching its decision.

Population Forecast

[42] While the experts agreed on the 2031 population for the trade area, there was
substantive disagreement about the rate of population growth in the area; and more
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specifically the Tottenham community.1 Population forecasts are important because a


fast growth rate in Tottenham in the early years could help justify the need for the
Ballymore redevelopment in 2020. A slower growth rate might indicate that the
Ballymore proposal is premature.

[43] It is noted that assumptions about the rate of population growth are likely
responsible for the greatest amount of difference between the various market impact
analyses.

[44] The population of Tottenham in 2016 was 8,360. Ms. Jacob forecasted the
population to increase rapidly to 11,780 in 2020 before levelling off in the 2020s. Mr.
Annand’s forecast has the population increasing more steadily over the entire period to
2031. Thus, in Mr. Annand’s analysis, Ms. Jacob’s 2020 population projection is not
reached until the mid to late-2020s.

[45] The Tribunal prefers Ms. Jacob’s forecast for the following reasons. First, it is
predicated on a pent up demand—both local and regional—for housing in Tottenham
that has only recently begun to be satisfied. This demand pattern can be seen in
statistics provided by the Town’s Chief Building Official that show that, after servicing
constraints on development were lifted in 2013, the rate of residential development in
Tottenham increased rapidly from just six building permits for new homes in 2013 to 424
permits in 2015, 386 in 2016, and about 320 (estimated) in 2017. The issuance of
occupancy permits in the community follows a similar pattern. This recent pattern of
development corresponds with the rapid population growth assumed by Ms. Jacob in
the near future.

[46] Second, Ms. Jacob’s approach has the distinct advantage of relying on the
development activity that is actually occurring. Her approach mapped out each year of
growth through a detailed analysis of building permits, housing starts, development

1
The analyses distinguish between the Primary Trade Area (Tottenham and environs) and Secondary Trade Area
(Beeton and environs).
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approvals, and discussions with Town staff and local developers. It is therefore likely to
be more accurate for the early years of the forecast, which is critical to assessing the
short-term need for commercial space. Mr. Annand relied instead on allocating shares
of population growth calculated for the County and its constituent municipalities down to
the trade area and to Tottenham. Although he cross-referenced data on recent housing
completions, Mr. Annand’s allocative approach is fundamentally rooted in past growth
trends that are not necessarily indicative of the future. Moreover, his practice of evenly
distributing annual growth between five-year Census periods does not, in the Tribunal’s
view, fully account for local conditions, especially in the early years of the forecast
period.

Market Analysis

[47] The overall goal of the market impact studies was to determine how much
additional commercial space would be needed in Tottenham to 2031. From this, the
experts reached conclusions about the impact on the planned function of the
commercial structure, including other commercial sites in the community.

[48] The market impact analyses employed a number of assumptions about shoppers
in Tottenham and their expenditures. The experts’ reasons for selecting one assumption
over another were often qualitative, nuanced, and complex and the precise impacts on
the analysis results are difficult to gauge. The Tribunal can conclude, however, that
differences in the results appear to arise from the cumulative effect of assumptions used
by each expert rather than any one assumption. Moreover, the differences in the results
are substantive.

[49] A major disagreement centred on inflow rates. Ms. Jacob and Mr. Tate assumed
higher rates of inflow than Messrs. Annand and Kircher. In this, they were informed by
the Tate license plate survey and their experience with inflow at other supermarkets in
similar locations north of the GTA. No Frills stores, they testified, engender a high
degree of brand loyalty and attract shoppers from far afield—hence, high inflow rates
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are warranted. Mr. Annand held firm to the view that inflow to Tottenham should be
lower because it represents shoppers mostly from stable, rural areas to a community
that is not accessible from a major highway (inflow at a highway location, he testified, is
higher because one can intercept regional traffic). Mr. Annand also noted that Mr. Tate’s
analysis actually increases inflow rates to individual stores; he would have expected
that increased competition in the community would dilute the benefit of inflow over time.
In these views, Mr. Annand was supported by Mr. Kircher, who drew upon his previous
studies of inflow in the Town.

[50] Mr. Kircher noted that the ZBLA allows for a supermarket use on the Ballymore
site: not necessarily a No Frills. In his view, approving the OPA should not therefore be
predicated on a market analysis that assumes a No Frills. While mindful of Mr. Kircher’s
view on this matter, the Tribunal appreciates that in order to best assess impact, the
market analyses should draw upon the best available information about future retail
activity, especially when that activity is heavily influenced by the store brand that will
occupy the site.

[51] Another significant disagreement was over the productivity of stores—expressed


as the amount of sales per sq. ft. of each store. Productivity calculations rely on surveys
that measure how much people spend, monthly and annual retail trade data on
expenditures, the performance of existing stores and store brands, and the “residual
potential” of stores should they be underperforming.

[52] The experts generally agreed that the Foodland supermarkets were less
productive than other brands: these stores currently generate between $345 and $368
in sales per sq. ft. and have greater residual potential. However, Mr. Annand’s view was
that the productivity of the Foodlands would decrease dramatically in the face of more
competition; Ms. Jacob assumed slightly increasing productivity for the Foodlands over
the forecast period. Productivity expectations for the Vince’s supermarket and the
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proposed No Frills varied considerably—witness the figures used by Ms. Jacob and Mr.
Annand:

Vince’s No Frills

Jacob Annand Jacob Annand

$566 rising to $450 rising to $827 rising to $972 $550 rising to


$642 $475 $675

[53] The Tribunal notes that Mr. Annand acknowledged that his assumed productivity
for the No Frills was “conservative” and could reasonably be increased.

[54] Also at issue were the assumed “capture rates”, or that portion of retail sales in
the trade area captured by stores in the area. Capture rates are currently relatively low
in Tottenham (54%) as residents often shop for discount and higher order goods
elsewhere (particularly in the Alliston community to the north where there is, among
other large stores, a Walmart). The analyses of Ms. Jacob and Mr. Tate assumed that,
with the introduction of a discount supermarket like No Frills, the capture rate would
increase over time. Mr. Annand felt strongly that the rate of increase adopted by Ms.
Jacob and Mr. Tate was too aggressive.

[55] Ms. Jacob and Mr. Tate were informed in their assumptions by a telephone
survey undertaken for the Altus report. The survey was criticized by Mr. Kircher for
having a flawed questionnaire and a small sample size of only 150 households.
However, he acknowledged that achieving the ideal sample size of between 400 and
600 households was unrealistic in the Tottenham context.

[56] Messrs. Kircher and Annand highlighted the supermarket service ratio for
Tottenham (the ratio of supermarket space to population). Mr. Kircher’s view was a ratio
of 3 to 3.5 sq. ft. per capita was ideal and both experts testified that the ratio forecast for
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2031—in excess of 8 sq. ft. per capita—far exceeds the needs of the community. Mr.
Annand acknowledged that supermarket service ratios have increased in recent years
as stores diversify. Ms. Jacob provided examples of similar communities in Ontario with
higher service ratios (though none as high as 8 sq. ft. per capita) and testified that,
given the current variation, these ratios should be used with caution when determining
supermarket needs for a specific site.

[57] Ultimately, Ms. Jacob and Mr. Tate concluded that a third supermarket in
Tottenham (four in the trade area) is justified in the short-term; they accordingly
supported the Ballymore proposal. Mr. Annand concluded that Tottenham would only be
able to sustain three supermarkets at the very end of the forecast period in 2031, when
the population of the trade area reached 22,000. In the meantime, Mr. Annand felt that
the Ballymore proposal would result in substantial lost sales, and probably supermarket
closures, in the trade area. Mr. Kircher testified that the only way a third supermarket
could be justified in Tottenham was if the community (not the trade area) grew to 20,000
or 25,000 people.

[58] Taken together, the Tribunal finds that the market analyses are inconclusive
about the supermarket needs in Tottenham because the margin of error in the analyses
is wide and the work of each expert has its strengths and weaknesses. As such, the
Tribunal has reached its decision on the basis of a “reasonable middle ground”,
recognizing that this middle ground favours the Jacob/Tate analysis results because of
their higher short-term growth forecasts.

[59] The middle ground leaves the Tribunal in no doubt that the Tottenham
community, while it can currently sustain the Foodland and Vince’s, will need additional
supermarket space before 2031. Moreover, if a supermarket was to open in 2020,
current inflow and capture rates in the trade area would likely increase, though to what
degree and how quickly is very uncertain. With a supermarket on the Ballymore site,
Tottenham would likely have a higher than average supermarket service ratio for
several years after 2020, though this would likely fall as the community continues to
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grow. The increased competition afforded by the new supermarket would likely affect
sales at both the Beeton and Tottenham Foodlands in the short-term and possibly,
though less certainly, at Vince’s. The decline in productivity would mean that the
greatest threat of store closure arising from the new supermarket is probably the
Foodland in Beeton. In the absence of a Beeton Foodland closure, closure of the
Tottenham Foodland or Vince’s is possible.

Impact on Planned Function

[60] The Tribunal finds that the market impact analyses indicate that additional
commercial space, including supermarket space, will be needed in Tottenham prior to
2031. They also show that introducing a third supermarket in 2020 into the community
risks a loss of sales, and possible closure, of an existing supermarket in one of two
Corridor Commercial areas in Tottenham, particularly if the new supermarket is a No
Frills. The Tribunal finds, however, that loss of sales by an individual business by itself
does not constitute an unacceptably adverse planning impact (per OP Policy 5.3.3). Nor
is the presence of a supermarket in these Corridor Commercial areas required for them
to fulfill their planned function. Corridor Commercial areas are intended primarily to
serve residents of nearby neighbourhoods; they can function without supermarkets.

[61] In this respect, the Tribunal notes that the closure of the Tottenham Foodland
would still leave commercial tenants (a Home Hardware for example) in the Corridor
Commercial area to the north. As well, the closure of Vince’s would leave the
Tottenham Mall in the same state it was in between 2011, when a supermarket closed
there, and 2017 when Vince’s opened. There is therefore persuasive evidence that
these two Corridor Commercial areas can fulfill their planned function without their
supermarkets.

[62] In reaching this conclusion, the Tribunal notes that Mr. Annand did not agree with
the proposition that closure of the Tottenham Foodland represents a disruption of the
planned function of the commercial structure of the community.
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[63] The Tribunal heard no evidence to suggest that, despite the Beeton Foodland
being the only supermarket in that community, such a closure would adversely affect
any of the commercial designations in New Tecumseth, including those in Beeton. The
Tribunal cannot conclude, with the evidence it has, that Beeton needs a supermarket in
order for the OP commercial policies to be met.

[64] The Tribunal finds that the uses proposed for the Ballymore site, including the
supermarket, would meet the daily shopping needs of residents of the Secondary Plan
Area by making food and personal services available locally (per OPA 11 Policy 9.2.2.3
a).

[65] The Tribunal finds the Ballymore proposal to be appropriately located in the
context of the OP’s Corridor Commercial policies. The proposal would meet the
immediate needs of residents of the Secondary Plan Area by being within walking
distance of their homes. It would also serve as an eastern gateway to Tottenham in a
manner anticipated by the OP.

[66] The Tribunal finds that the Ballymore proposal, being as it increases the range
and amount of retail uses in the community, conforms to OP policies that promote
economic development and commercial competition.

[67] The Tribunal finds the form and design of the Ballymore proposal to be
consistent with PPS policies that promote a more efficient use of land as the proposed
rezoning would reduce building setbacks and areas for parking (lot coverage would
increase to 23% from 15%).

Impact on the Downtown

[68] The Tottenham downtown contains about one third of the commercial space in
the community—about 83,000 sq. ft.—and the space is fully occupied (notwithstanding
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Mr. Piersanti’s assertions). Most of the commercial space contains service-based


activities; only about 10,000 sq. ft. is used for retail, and this retail is not a supermarket.
In fact, there are currently no opportunities in the downtown to build a supermarket.

[69] These facts are indicative of a healthy and vibrant downtown that is serving its
planned function. Indeed, as noted by Mr. Lowes, given the current vacancy rate of 0%
the vibrancy of the downtown may be a barrier to future commercial expansion and
relocation.

[70] Given there is no supermarket, and very little other retail activity in the downtown,
the Tribunal finds that the commercial uses in the downtown would be largely
unaffected by the expansion of retail uses on the Ballymore site. Mr. Rendle’s concern
that increasing the range of uses on the site, particularly to allow for fitness centres,
restaurants, and other “destination” uses, would draw commerce away from the
downtown is a valid one. However, the Tribunal finds that, given the growth forecast and
apparent vitality of the downtown, these uses would compliment as much as compete
with downtown commercial activity. In this respect, the Tribunal notes that the OP
encourages development that expands the range of goods for Tottenham residents as a
whole, and promotes increasing the level of commercial competition in the community
and beyond.

[71] In short, the Tribunal concludes that the planned function of the downtown,
particularly its centrality in the commercial hierarchy, would not be adversely affected by
approving the Ballymore proposal.

Potential for Blight

[72] In 2014, Mr. Kircher warned the Town of “severe negative consequences in the
Downtown” as well as potential “blight” in Tottenham should the Ballymore proposal be
approved. In his testimony, he qualified his opinion by saying that any negative
consequences would be felt only on the Tottenham Mall and Foodland sites. The
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Tribunal is not persuaded by Mr. Kircher’s opinion: loss of sales or store closure in
these Corridor Commercial areas would not, in the Tribunal’s view, necessarily lead to a
community that is ugly, neglected, or rundown. Nor would store closure necessarily
disrupt the planned commercial structure of Tottenham. The downtown would remain
the focal point of commerce and hospitality and residents of a what is a rapidly growing
community would still be able to access local retail facilities close to home. Urban blight,
in the Tribunal’s view, is not a concern if Tottenham has three supermarkets.

Planning Process

[73] In a case where the informed judgement of experts has played such a critical
role, the Tribunal has carefully considered the decision of Town Council to approve the
Ballymore applications. The testimony of Mr. Lucas, the staff planner, and a careful
reading of this report to Council of June 2016, makes clear that Council was aware of all
the market analyses undertaken for the applications to date as well as the differences
that then existed among the experts. Council therefore had all the relevant information it
needed to engage in informed deliberations on the applications and to draw on its own
knowledge of the retail needs of the Town in reaching its decisions.

CONCLUSION

[74] The planned function of the commercial structure of Tottenham is clearly set out
in OPA 11. The Tribunal finds that, taken as a whole, the market analyses do not
indicate that the planned function would be significantly disrupted by introducing a new
supermarket on the Ballymore site. To be sure, the ability of the community to sustain
three supermarkets in the near future is not certain. The market impact studies indicate
that the Foodlands in Beeton and Tottenham would be most affected by the Ballymore
proposal, and closure of one of these stores is possible. Vince’s supermarket is also not
immune to risk.
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[75] However, the Tribunal is not persuaded that a supermarket closure arising from
approval of the Ballymore applications would jeopardize the planned function of the
commercial structure of the Town of New Tecumseth. Certainly urban blight is not of
concern. The northern Commercial Corridor area of Tottenham would likely remain a
gateway commercial location to Tottenham in the same way that the Deer Park area
serves as a gateway to the south. All Corridor Commercial areas in the community
would continue to serve neighbourhood retail needs as they have done in the past with
or without supermarkets. Most importantly, the downtown area (and indeed the
Tottenham Mall), which is already a demonstrably vibrant commercial area, will continue
to serve as the focal point of the community in a manner anticipated by the planning
policy framework.

[76] As such, the Tribunal finds that the ZBLA conforms to the Town’s Official Plan.
Moreover, the ZBLA and OPA 51 uphold the Provincial interests set out in s. 2 of the
Act, including the relevant policies of the PPS and Growth Plan.

ORDER

[77] The Tribunal orders that the appeals be dismissed.

[78] The Tribunal further orders that both OPA 51, and the ZBLA that was approved
by Town Council, be approved.
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“Stefan Krzeczunowicz”

STEFAN KRZECZUNOWICZ
MEMBER

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Local Planning Appeal Tribunal


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Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248