Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 15, 2021
CASE NO(S).: PL210056
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant: Liquidation Channel Inc.
Appellant: George Browes
Subject: Minor Variance
Variance from By-law No.: 95-2003
Property Address/Description: 522 Kingston Road West
Municipality: Town of Ajax
OLT Case No.: PL210056
OLT File No.: PL210056
OLT Case Name: Browes v. Ajax (Town)
Heard: May 20, 2021 by video hearing
APPEARANCES:
Parties
Counsel
George and Jeff Browes
Self-represented
Liquidation Channel Inc.
Monica Poremba
DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was convened on May 20, 2021 to consider the appeal by George and Jeff Browes (“Appellant”) of 526 Kingston Road West for the decision of the Town of Ajax (“Town”) Committee of Adjustment (“COA”) made on December 16, 2020 to authorize the minor variance to Zoning By-law No. 95-2003 (“ZBL”) sought by the Liquidation Channel Inc. (“Applicant”) under s. 45 of the Planning Act, R.S.O 1990 c. P.13 (“Act”).
2The subject property at 522 Kingston Road West (“Site”) is zoned Village Core Mixed Use Three (VC3) Zone as amended, which permits the proposed 3-storey mixed use building.
3The Applicant proposes to demolish the existing single family detached home on the Site and to build a new 3-storey mixed use building with commercial units at-grade and 8 residential units, with parking spaces located in the rear yard of the Site as well as under a covered parking area. The proposal complies with the parking requirements: a minimum of three parking spaces are required for the commercial area and eight for the residential component; a total of 15 parking spaces would be provided.
4In order to facilitate the proposed development, a minor variance application had been submitted requesting relief from the requirements of the ZBL to permit a minimum setback from the front lot line of 2.0 metres (“m”), whereas, the ZBL requires a minimum setback from the front lot line of 13.4 m specifically for this property.
5The City’s Planning Staff recommended the application be approved. The COA approved the variance application on December 16, 2020, subject to conditions.
EVIDENCE AND SUBMISSIONS
6The Tribunal heard opinion evidence from one witness: Christian Chan, a planner with the firm C2 Planning on behalf of the Applicant. Mr. Chan was qualified with no objections and affirmed to provide evidence in the area of land use planning. The Applicant submitted a document book and it was marked as Exhibit 1 for the record.
7The Tribunal heard that the Appellant would not be calling any witnesses and that they would be submitting their document book/statement which was marked as Exhibit 2.
8Art Robson, who was granted Participant status, submitted his statement which was marked as Exhibit 3.
9Michelle Landry sought Party status at the hearing. The Tribunal heard that Ms. Landry would not be providing any expert evidence, nor was her request formally submitted to the Tribunal within the required and mandated time period. The Tribunal denied her request for Party status but did grant her Participant status. Ms. Landry’s statement was marked as Exhibit 4.
PLANNING EVIDENCE
10The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests in s. 45(1) of the Act.
11Mr. Chan informed the Tribunal that the central focus of his evidence relates to the appropriateness of the variance on the main street character and intensification corridor, that is the local stretch of Kingston Road West.
12The Appellant focused solely on the impact sought from the relief of the minor variance.
ANALYSIS
The Applicant’s Position
Existing Site and Building
13Mr. Chan informed the Tribunal that the Site is municipally known as 522 Kingston Road West, and is located on the north side of Kingston Road West and east of the Kingston Road West and Church Street intersection, east of George Jones Street, and south of Sherwood Road East (see Tab 8a).
14The Site has fronts onto Kingston Road West and has a frontage of 20.12 m, a depth of 52.87 m and a lot area of approximately 1063.74m2 (0.26 acres).
15The Site is a single lot and is developed with a 2-storey detached residential building and an accessory building on the west side of the rear yard. Parking is currently provided on the lot in the west side yard to the existing home on the Site.
Study Area – Geographic Neighbourhood
16Mr. Chan provided to the Tribunal a selected Planning Study Area that forms the lots fronting onto Kingston Road West between Church Street and Rutherglen Road. This “immediate main street context” contains lots that have similar, or the same zoning classification and permit commercial and mixed-use development, all are along the “Regional Corridor” in the Region of Durham (“Region”)’s Official Plan (“OP”), and within a designated intensification area (“Village Centre”) in the Town’s OP.
Immediate Main Street Context
Mr. Chan opined that a planning assessment of the proposal in relation to the physical character of the area should take into account the physical characteristics of the properties that face the same street as the proposed development in proximity to the proposed development.
Mr. Chan informed the Tribunal that the immediate main street context is comprised of the properties that face Kingston Road West, from Church Street and Rutherglen Road and in the Pickering Village Neighbourhood, east of the Pickering Village Heritage Conservation District boundary.
The buildings in the immediate main street context are characterized by 1, 2, partial 2.5 and partial 3-storey detached wholly residential and mixed use buildings containing commercial uses facing the Kingston Road, with driveways leading to a parking spot in parking lot on the front yard, or in a side yard or rear yard on the other sides of the lot.
Mr. Chan further informed the Tribunal that there are a range of lot frontages and lot areas but the lots fronting onto and on the south side of Kingston Road West are generally deeper with the principle building set back further from the right-of-way than the buildings on the lots that are on the north side of Kingston Road West in the immediate main street context. Where there are deeper lots on the north side of Kingston Road West in the immediate main street context, those lots also have principle buildings that are setback deeper into the lot from the right-of-way.
17Mr. Chan opined, the existing physical character of the properties and buildings in the immediate main street context is to be considered of primary relevance in the evaluation of the proposal, as there are instances of significant differences between the immediate main street context and the surrounding neighbourhood contexts, namely that:
The size of the lots in the immediate main street context is substantially larger in area and in most cases, lot “frontages” wider than lots in the surrounding neighbourhood context.
The zoning of the immediate main street context provides for mixed-use development and intensification along a Regional Corridor; whereas no such zoning permission exists in the broader neighbourhood context.
The lots front onto a Regional Corridor and are in an intensification area along a Type “B” arterial road, which provides bus transit, higher speeds and traffic volumes.
18The Tribunal further heard that north of the Site are single detached residential homes, as well detached house forms with residential units to the west, south and east, and some of those detached house forms containing mixed uses or contain only commercial uses.
The Appellant’s Position
19The Appellant informed the Tribunal of the concerns raised regarding the:
side-yard setback;
the scale of the building; and
tree removal.
20Under cross-examination, Mr. Chan informed the Tribunal that:
side yard setback complies with the ZBL;
the height of the building complies with the ZBL;
the size of the building complies with the ZBL;
the parking requirements comply with the ZBL and the residential and commercial uses of the building are permitted by ZBL; and
no trees are proposed to be removed within the requested front-yard setback.
21Monica Poremba, counsel for the Applicant, objected to the issues raised by the Appellant stating that they are irrelevant to the determination of whether the requested variance meets the four-part test as set out in the Act.
22Through Ms. Poremba’s cross-examination of the Appellant, she informed the Tribunal that the Appellant was trying to litigate the Site Plan before the Tribunal.
23Ms. Poremba further stated that the Site Plan is not before the Tribunal, has not yet been approved by the Town, and in any event, would not be appealable. The Appellant has not provided any credible evidence to support his position with regard to the requested variance.
Provincial Policy Statement, 2020
24Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS.
25The Tribunal heard from Mr. Chan that in policy 4.6 of the PPS states that:
The Official Plan is the most important vehicle for the implementation of this Provincial Policy Statement…Official plans shall identify provincial interests and set out appropriate land use designations and policies…
26The Tribunal learned that through the OP, the Town has identified the types of development that may occur in a Village Centre designation, subject to the criteria contained in the OP policies.
Growth Plan for the Greater Golden Horseshoe 2019
27Section 3(5) of the Act directs that a decision of this Tribunal with respect to any planning matter shall conform and not conflict with the relevant policies of the Growth Plan. The official plans of municipalities and regions in the Greater Golden Horseshoe Growth Plan area must also conform to the Growth Plan.
28Mr. Chan informed the Tribunal that the revised proposal is an example of development that is proposed to occur in a settlement area. The Kingston Road West Corridor is also identified as an intensification area and along a Regional Corridor in the Town’s OP. The Growth Plan contains general strategic directives to all development in settlement areas, namely that it will achieve a complete community by providing a diverse mix of land uses and housing options and provide for a compact built form. Intensification is encouraged generally throughout the delineated built up area and development is to be designed in a manner that supports the achievement of complete communities. Municipalities are required to update their official plans to make sure they conform to the Growth Plan policies.
29Mr. Chan opined that the proposal is consistent with the PPS and conforms and does not conflict with the relevant policies of the Growth Plan, those being:
PPS Policies: 1.1.1 a), b), e); 1.1.3.1; 1.1.3.2 a) and f); 1.1.3.3; 1.4.3 b), d) and in particular e), and f); 1.6.7.4; and 1.7.1 d) and e).
Growth Plan Policies: 2.2.1.2.c) iii); 2.2.1.4.c); and 2.2.1.4.a), c), d), and e).
LEGISLATIVE TESTS
30The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant, notwithstanding that the COA authorized the variances. The tests require that that the variances:
a. maintain the general intent and purpose of the OP;
b. maintain the general intent and purpose of the ZBL;
c. be desirable for the appropriate development or use of the land, building or structure; and
d. be minor in nature
Maintain the general intent and purpose of the Regional OP
31The Tribunal heard that the Site is situated on a “Regional Corridor” and in a “Living Areas” designation in the Durham Region Official Plan. The “Living Areas” designation permits mixed-use development and to achieve a minimum density target of 60 units per hectare. Higher Order Transit is intended to be implemented along the Regional Corridor.
32The proposed development conforms to the uses contemplated in the “Living Areas”, and along a “Regional Corridor”, and introduces a development that will contribute to the achievement of the minimum density target in the immediate main street context.
Maintains the General Purpose and Intent of the Town OP
33The Site is designated “Village Centre”, a designation that is identified as an intensification area in the Town’s OP. The development intent for intensification areas is to introduce residential and mixed uses within already built-up areas at higher densities. Kingston Road West is intended to intensify as a local shopping and residential node through incremental infill with low to mid-rise buildings.
34The “Village Centre” is identified as an intensification area. New development in a “Village Centre” shall respect the form, style, setting, scale and be compatible with the existing historic house-form residential development. The development intent for intensification areas is to introduce residential and mixed uses within already built-up areas at higher densities.
35The Tribunal heard that the proposed development conforms to the permitted uses and densities in the “Village Centre” land use designation, which permits commercial uses and any residential uses permitted in the Low Density and Medium Density Residential designations.
36The proposal introduces more residential and commercial units, conforming to the development intent of the OP. The proposed front yard setback respects the built form character of the immediate main street context, and is compatible with existing development while providing the ability for the lot to be redeveloped to its intended potential in an intensification area.
37Mr. Chan opined that the proposal maintains the general intent and purpose of the Town’s OP.
Maintains the General Purpose and Intent of the Zoning By-law
38The Site is zoned Village Core Mixed Use Three (VC3) Zone in the Town of Ajax ZBL No. 95-2003 (see Tab 6a). The proposed three-storey mixed use building is a permitted use under the VC3 Zone, pursuant to sections 6.3.1 and 6.3.3 of the ZBL.
39The Tribunal heard that the proposal conforms to the permitted lands uses and complies with the development standards of the VC3 Zone except for the front yard setback requirement pursuant to section 6.3.2 – Zone Standards. The intent of the front yard setback requirement is to maintain consistency of the street wall along Kingston Road West by maintaining a sufficient setback from a front property line and that the streetscape of the surrounding context is preserved.
40The Tribunal was informed that section 6.3.2 (7) specifically applies in this case, as the building contains apartment dwellings. The development standard is such that the required minimum front yard setback is the straight line between the two nearest street facing corners of the nearest adjacent principle buildings on the abutting lots. The minimum front yard setback is specific to each site in the immediate main street context, and dependent on the adjacent buildings to determine a required minimum front yard setback on each lot.
41The Tribunal heard there is a considerable difference in the front yard setbacks of the principle buildings on the abutting lots. After the road widening, the front yard setback of 516 Kingston Road West, to the east of the Site, is 21.1 m; and the front yard setback of 526 Kingston Road West, to the west of the Site, is 5.7 m. This means that the straight line drawn between the corners of the buildings closest to the Site produce a minimum required setback from the front lot line of 13.4 m.
42Further, the Tribunal heard the Regional OP requires that any applicant for redevelopment on a Regional Corridor must convey a 5 m strip of their lots abutting the existing right-of-way for the planned widening of the public right-of-way on Kingston Road West. This results in the reduction of 5 m from the front of the lot, causing the relief sought to be a front yard setback of 2 m. Should the existing building on the Site be taken into account in relation to the planned widening, the existing building on the Site would have a 3 m front yard setback.
43The existing detached residential building on the lot has a front yard setback of 8 m from the current front lot line. The proposed front yard setback is 7 m from the current front lot line. The proposal, therefore, has a front yard setback that is 1 m less (approximately 4 feet) than the existing front yard setback of 3 m from the widened right-of-way.
44The applicable front yard setback is for a building that is both a development with apartment dwellings and a building that is not designated as historic or a heritage building.
45The Tribunal learned that there are a number of properties with existing buildings in the immediate main street context that have smaller front yard setbacks than as proposed, namely 530, 504, 566 and 571 Kingston Road West, and for most of the buildings on the properties fronting onto Kingston Road West, to the west of George Jones Street.
46The Tribunal heard that it is not unusual for a development in the immediate main street context to have a front yard setback of 7 m, or 2 m after the road widening. Those smaller front yard setbacks do not undermine the existing physical character of the immediate main street context. The road widening will apply to these properties, and their front yard setbacks would also, as a result, be smaller.
47The Tribunal learned that the proposed front yard setback maintains the consistency of the street wall along Kingston Road for a proposed front setback that is 1 m less than the existing building, while providing a development that meets the intensification and minimum density goals of the OP, and complying with all other development standards in the By-law.
48Mr. Chan opined the front yard setback variance sought maintains the general intent and purpose of the ZBL.
Desirable for the Appropriate Development of the Lands
49The Tribunal was informed that the proposal that will carry out the intent of the intensification policies in the Town’s OP, particularly where the proposal is for a mixed-use development that substantially complies with the ZBL and that appropriately fits within the existing immediate main street context.
50The Tribunal further heard that the variance sought would not create a precedent that will materially alter or discontinue the streetscape character of the immediate main street context as there are a number of properties in the area that in fact have smaller front yards.
51If approved, the development and the variance requested to facilitate its construction will be a form of reinvestment in the local area and promotes a more pedestrian oriented streetscape while contributing to the Region’s goal of enhancing the Regional Corridor’s ability to implement Bus Rapid Transit, which is desirable and in the public interest.
52Mr. Chan opined that the proposal is desirable and in the public interest and represents good planning.
Minor in Nature
53The Tribunal heard that there are impacts of the proposed front yard setback that would cause to interrupt the street wall character of the immediate main street context. There are a number of properties that have buildings that have a lesser front yard setback that do not negatively impact their abutting neighbours.
54The proposal incorporates landscaping on the sides of the front yard which will improve the streetscape and minimize visual impacts.
55The Tribunal was informed that a new or existing building on the lot could be developed to within 1.5 m of the existing front yard setback, the proposal is for a front yard setback that is 1 m less than the existing front yard setback.
56The Tribunal was informed that the lots to the east of the Site at 516 and 510 Kingston Road West are set back even further than most of the buildings on the lots on the north side of Kingston Road West in the immediate main street context. In my opinion, these two lots are anomalous out of the seven lots on the block from George Jones Street and Hewison Court, in that they are the only lots with buildings having a front yard setback of over 5.7 m from the widened roadway.
57Mr. Chan opined that the proposal is consistent with front yard setbacks and the variance requested is minor.
FINDINGS
58The Tribunal accepts Mr. Chan’s evidence and finds that the minor variance has appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan.
59The Tribunal finds the requested variance meets the four tests of s. 45 (1) of the Act and:
a. the general intent and purpose of the OP is maintained;
b. the general intent and purpose of the ZBL is maintained;
c. the variance is considered desirable for the appropriate development of the land; and
d. the variance is minor in nature.
ORDER
60THE TRIBUNAL ORDERS that the appeal is dismissed and the variance to By- law No. 95-2003 is authorized subject to the following conditions:
a) That the Owner/Applicant obtain approval of Site Plan Application SP6/18, to the satisfaction of the Town of Ajax, and
b) That the Owner/Applicant obtains all necessary building permits from the Town of Ajax’s Building Services Section.
“Carmine Tucci”
CARMINE TUCCI
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.