Nobary v. Newmarket (Town), 2021 CanLII 112414

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 04, 2021

CASE NO(S).: PL190637

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicants and Appellants: S., Z., and F. Kariminejad Nobary

Subject: Application to amend Zoning By-law No. 2010-40 Refusal of Application by Town of Newmarket

Existing Zoning: Single Detached 15 metre (R1-D) Zone

Proposed Zoning: Single Detached 12 metre (R1-E) Zone

Purpose: To permit 3 detached dwellings

Property Address/Description: 247 and 251 Kathryn Crescent

Municipality: Town of Newmarket

Municipal File No.: D14-NP 18-25

LPAT Case No.: PL190637

LPAT File No.: PL190637

LPAT File Name: Nobary v. Newmarket (Town)

Heard: October 15, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Siavash Karminejad Nobary Zahar Karminejad Nobary Faras Karminejad Nobary

Rocco G. Scocco

Town of Newmarket

Kim Mullin

DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL

1The Tribunal convened a hearing in the matter of an appeal by Siavash. Zahar and Faras Kariminejad Nobary (“Appellants”) against the Town of Newmarket’s (“Town”) refusal to adopt a Zoning By-law Amendment (“ZBA”) pursuant to s. 34 (11) of the Planning Act. The properties in question are known municipally as 247 and 251 Kathryn Crescent (“subject lands”). The ZBA application was refused by Town Council on November 11, 2019.

2There are two parties of record both are represented by Counsel. Three participants Montgomery McKinnon, Jim Arlow and Elaine Adam attended the hearing.

3The Tribunal felt compelled to correct the record with respect to Exhibit numbering in this matter. Existing exhibits are: Exhibit 1 – Affidavit of Service; Exhibit 2 – Participant Statement of Montgomery McKinnon; Exhibit 3 – Participant Statement of James Arlow; and Exhibit 4 – Participant Statement of Elaine Adam. The Tribunal has reviewed all Participant Statements and have considered the issues raised in this decision.

4The following land use planning witnesses were called:

a. for the Appellants – Christian Chan and Meghan White (under subpoena)

b. for the Town – Allan Ramsay

All are qualified to give expert opinion evidence in the discipline of land use planning.

5The Appellants have applied to the Town for a ZBA to amend the Town’s Zoning By-law for the two existing lots from a “Single Detached 15 metre (“m”) (R1-D) Zone” to a “Single Detached 12 m (R1-E) Zone. This would allow the Appellants to divide the two existing lots into three and allow the construction of a new single detached dwelling on each. For the purposes of the hearing on this matter, it is determined that the ZBA changes are an exception to The R1-D zone as described in the Planning Instruments section of this decision.

KEY ISSUE

6The Tribunal heard submissions and evidence from the parties during this proceeding and it is clear that the key issue related the proposal is:

1. is the proposed rezoning on three newly severed lots proposed within this neighbourhood appropriate redevelopment of the subject lands and compatible in terms of lot area, lot frontage and lot coverage with the existing community?

SUBJECT PROPERTY AND AREA CONTEXT

7The subject lands are located north of Eagle Street east of Yonge Street and west of Lorne Avenue in a neighbourhood known locally as ‘Downtown or Central Newmarket’. Both are irregularly shaped lots. 247 Kathryn Crescent has a frontage of 18.29 m and a lot area of 610 square metres (“m²”) and 251 Kathryn Crescent has a lot frontage of 18.29 m and a lot area of 585 m². The total area of the subject lands is approximately 1195 m². Each lot is occupied with an existing Single Detached Dwelling (“SDD”). The subject lands are generally flat with five mature trees in the front yard or along rear property lines.

8The neighbourhood is described as a low density residential area consisting of one and two storey homes with a variety of lot sizes and frontages. Parking is located on either side or front yards. Recently constructed new homes are generally two storey with front yard parking.

9The subject lands are situated in an existing residential neighbourhood made up largely of one and two storey SDD’s.

10Adjacent uses are:

1. South – are SDD one storey bungalows. A foot path to the ‘Pioneer Burying Cemetery’ is located to the south of the subject lands. There is a mix of commercial, office and residential uses located on Eagle Street.

2. North – are one and one and a half storey SDD’s fronting on Avenue Road.

3. West/East – are SDD one storey bungalows.

11The Tribunal notes that in the planners’ Agreed Upon Statement of Facts the subject lands are currently used for residential purposes and are physically suitable for continuing residential uses. Therefore, Issue 6 on the Procedural Order and Issues List is no longer in dispute.

BACKGROUND

12Suffice it to say the matter has an extensive history. A brief overview is as follows:

1. A Zoning By-law Amendment (“ZBA”) application was submitted to the Town in November 2018 and the requests for supporting studies and documents were submitted in December 2018. The application was deemed complete on January 28, 2019.

2. The application was the subject of two staff planning reports. The first in May 2019 recommended the application be referred to a statutory public meeting which was held in August 2019. It appears from the record that there was considerable public interest and opposition. The second planning staff report in November 2019 recommended refusal of the application.

3. Town Council accepted the staff recommendation and the applications were refused on November 11, 2019. It is evident from the submissions of Counsel at the Tribunal’s hearing that the Appellants and the Town had subsequent without prejudice meetings that were obviously unsuccessful.

PLANNING INSTRUMENTS

13The Tribunal did not have the benefit of a draft ZBA from the Appellants but did have a clear listing of what exceptions to the Town’s comprehensive Zoning By-law are required (Exhibit 6 Tab 22 page 573). There have been recent changes to the Town’s comprehensive Zoning By-law and it is determined at this hearing that a ZBA in the form of an exception appropriately amends the 6.2.2 - Zone Standards Column D (Exhibit 6 Tab 6 page 147) of the Town’s Zoning By-law No. 2010-40 (Exhibit 6 Tab 6).

14The subject lands are zoned R1-D in By-law No. 2010-40. The required Zone Standard changes to be applied in a notwithstanding fashion to the subject lands are:

1. Minimum Lot Frontage – 12.19 m.

2. Minimum Lot Area – 596 m²

3. Maximum Lot Coverage – 34 %.

15The Tribunal did not have a consent application or appeal before it in relation to this matter. The site plan outlining the effect of the ZBA and proposed severance is found in Exhibit 8 Page 009 entitled “Site Plan – 249 Kathryn Crescent Drawing A0-1”

LAND USE PLANNING POLICY

16The land use planners met and submitted an Agreed Upon Statement of Facts in relation to the Issues found in the Procedural Order and the Issues List. Mr. Chan and Mr. Ramsay were of the opinion that the proposed development is consistent with the Provincial Policy Statement 2020 (Issue 1), and conforms and does not conflict with the Growth Plan for the Greater Golden Horseshoe (Issue 2) and the York Regional Official Plan (Issue 3)

17The Tribunal agrees with this assessment but has the responsibility to satisfy itself on consistency or conformity to Provincial Policy and upper tier Official Plans. Ontario has a Provincially led planning framework and therefore statutory Provincial Planning policy does have weight in Tribunal decision. This decision is no exception. Mr. Chan led evidence with respect to these important policy documents for the benefit of the Tribunal and those observing the hearing. Key points of his testimony are as follows.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

18The proposed ZBA has appropriate regard for s. 2 of the Planning Act most notably s. 2 j), p), r), i), and r i).

Provincial Policy Statement 2020 (“PPS”)

19The proposal is consistent to the PPS with special reference to a variety of policy directions found in s. 1.1 – Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns. This section of the PPS is very comprehensive and fulsome in its policy direction. Mr. Chan summarized applicability as follows:

1. promotes efficient development and land use patterns by avoiding the expansions of settlement areas.

2. minimizing land consumption and servicing costs in settlement areas.

3. is located in an area where growth and development are to be focused.

4. uses land and resources wisely and makes efficient use of infrastructure and public service facilities while avoiding the need for unnecessary boundary expansions. Policy encourages compact urban development.

5. meets the PPS definitions for intensification and redevelopment which both encourage “infill development” or “the creation of new units, uses or lots on previously developed land in in existing communities”.

A Place to Grow – Growth Plan for the Greater Golden Horseshoe (Growth Plan)

20The Growth Plan builds on the policy foundation of the PPS and provides a policy framework for growth in the Greater Golden Horseshoe which includes policy on where and how to grow, building complete communities and prioritize intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability. (Tribunal emphasis)

21Mr. Chan in his evidence illustrated key policy directions of the Growth Plan as follows:

1. “it is important to optimize the use of the existing urban land supply as well as the existing building and housing stock to avoid the over designation of land for future urban development while also providing for flexibility for local decision-makers to respond to housing need and market demand”.

2. the focus on optimization the use of the existing urban land supply represents an ‘intensification first approach’ to development and city building.

3. an emphasise on making better use of existing infrastructure and public service facilities.

22Mr. Chan referenced a series of specific Growth Plan policies found in Chapter 2 – Where and How to Grow which he feels are particularly relevant in this matter being: s. 2.2.1.2, 2.2.1.3, 2.2.1.4, and 2.2.2.3. Paraphrased, these sections state the vast majority of growth will be directed to settlement areas with existing or planned municipal water and wastewater systems; in locations with existing or planned transit; an urban form that will optimize infrastructure to support the achievement of a compact urban form; support the achievement of complete communities and providing a diverse mix of land uses.

23It is uncontested evidence that the proposal is within a settlement area, has ready access to existing transit, is served by municipal water and wastewater, has available public services. The neighbourhood has all the characteristics of a ‘complete community’.

24The Tribunal agrees with the land use planners that this proposal has appropriate regard for matters of provincial interest in s. 2 of the Planning Act, is consistent with the PPS and conforms with the Growth Plan. The Tribunal finds that evidence illustrates that the proposal more than conforms with, and does not conflict with, the Growth Plan, as it speaks directly to its implementation priorities of optimizing the use of existing urban land supply, represents an intensification first approach to development; provides a mix and range of housing units and is an appropriate scale and type of development.

25The Tribunal quotes two (of the many) policies of the Growth Plan noted in the proceedings:

1. Managing Growth – s. 2.2.1.3 c) “provide direction for an urban form that will optimize infrastructure particularly along transit and transportation corridors, to support the achievement of complete communities through a more compact built form”.

2. Delineated Built-up Areas - s. 2.2.2.3 c) “encourage intensification generally throughout the delineated built-up area”.

26The planning framework in Ontario is clearly hierarchical and does not defer the responsibility of being consistent with or complying to Provincial policies only to the local municipal Official Plan. Planning policy in Ontario is a Provincially led framework and the Tribunal heard in evidence that the proposal clearly meets all the relevant statutory policy tests and therefore Provincial policy carries weight in this decision.

27The Tribunal finds the proposal serves:

1. to direct the majority of growth to settlement areas in support of a compact urban form.

2. assists in the creation of a complete community by providing a diverse mix of land uses, optimizes the use of the existing urban land supply that will help avoid the over designation of land for future urban development which represents an intensification first approach within the Town.

3. makes better use of existing infrastructure, existing transit, and public service facilities.

28The Tribunal assigns weight to Provincial policy directions in this decision.

Regional Municipality of York – Official Plan (“YROP”)

29Mr. Chan in evidence noted that the subject lands are designated ‘Urban Area’ on Map 1 Regional Structure of the YROP. Urban Areas will accommodate a significant portion of the planned growth in the Region and the entire Town is within the built up area as defined by the Growth Plan. The Region has established minimum growth targets prescribing that 40% of all residential development will occur in the built-up area.

30The planner described the Region’s ‘Intensification Matrix Framework’ found in s. 5.3.6. The framework is to assist in the intensification of Urban Areas by providing guidance to how intensification areas are to be “planned and designed to achieve appropriate transition of built form to adjacent areas”. ‘Local Infill’ is part of this intensification following ‘Other Major Streets’ and proceeding ‘Secondary Suites’. Mr. Chan went on to made reference to s. 5.3.12 which commits the Region “To work with local municipalities to raise awareness on the benefits of intensification with the public and stakeholders” highlighting in policy Regional commitment to infill housing he defined as appropriate ‘gentle intensification’ in a stable neighbourhood.

31Mr. Chan noted s. 3.5.4 which states the Town’s Official Plan and Zoning By-laws are “required (sic) permit a mix and range of housing types, lot sizes, functions, tenures and levels of affordability within each community”. A clear policy direction in keeping with Regional policy that is in support of the proposal.

32The Tribunal agrees with the land use planners that this proposal conforms to the YROP. Similar to the Growth Plan, the Tribunal finds that evidence illustrates the proposal more than conforms with the YROP, it speaks directly to the implementation of Regional policies related to: 40% of all residential development in built-up areas; how by defining a comprehensive ‘Intensification Matrix Framework’ demonstrates the Region’s commitment to an ‘intensification first approach’ to the development within its constituent municipalities; and a long standing stated priority of providing a mix and range of housing types, lot sizes, functions, tenures and levels of affordability within each community.

Town of Newmarket Official Plan (“NOP”)

33The subject lands are designated in the NOP as:

1. “Stable Residential” on Schedule A – Land Use.

2. within a “Historic Core Character Area” on Schedule X

3. within a “Wellhead Protection Area C

34This section of the decision relates to Issue 4 – “Does the proposed development conform with the policies of the Town of Newmarket Official Plan, in particular policies 3.2.1, 3.2.2, 3.9, 12.4, 16.1.13 and 16.1.5?” The planners spoke to all policy sections noted in the issue statement in their evidence.

35Much of the evidence is related to the compatibility of the proposed with the existing lot frontages, lot sizes and lot coverage with its corresponding house size. Compatibility is important in the Tribunal’s consideration and analysis of Official Plan policy. The first point of departure is to determine exactly what compatibility indeed is as the Tribunal hears evidence that new development must be compatible with the existing development. The Tribunal looks to Motisi v Bernardi, 1987 CarswellOnt 3719, (1987) O.M.B.D. No. 2, 20 O.M.B.R. 129 for some direction.

Being compatible with is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being compatible with implies nothing more than being capable of existing together in harmony.

36Both planners did define compatibility along these lines either during their evidence or in cross examination. The proposal was often described as ‘gentle density’ although the planners did not agree that the proposal is compatible to the neighbourhood area. The neighbourhood area is essentially defined the same as an enclave of approximately 132 lots as defined by Mr. Ramsey (Mr. Chan’s area was slightly larger incorporating approximately 156 properties) that are generally within a five minute walking distance from the subject lands.

37Both planners had similar views with respect to “stable” as it is used in this context. Stability in a neighbourhood does not mean the neighbourhood is static or has no change within its boundaries. Neighbourhoods are everchanging and naturally evolve.

38The Tribunal heard in testimony that compatibility is an all important policy consideration within the ‘Stable Residential Areas’ in the Town. It is interesting to find that the “majority of the land in the Town is designated as Stable Residential Areas, recognizing the existing neighbourhoods”. Important sections of the NOP include the following.

39In s. 2.1 – Managing Growth and change the following principle is established:

“A key principle reinforced throughout this Plan is the commitment to protect and strengthen existing neighbourhoods. Any development or redevelopment in Stable Residential Areas must respect the existing character of the area’.

40In s. 3.0 one finds policy that speaks to Emerging Residential Areas and Urban Centres where new development is to be directed as appropriate “in order to manage change in a manner that will maintain neighbourhood character”. Opportunities for intensification in Stable Residential Areas “will ensure that the character of these neighbourhoods is preserved…”.

41In Stable Residential Areas stated objectives are:

1. s. 3.2.1 “sustain and enhance the character and identify of existing residential communities” and “encourage the preservation and maintenance of the Town’s existing housing stock, supplemented by various forms of residential intensification such as infilling and the creation of accessory dwelling units”.

2. s. 3.2.2 states that the predominate use will be the existing residential built forms and SDD houses are permitted.

42Policies relating to permitted intensification within Stable Residential Areas are found in s. 3.9 of the NOP which have the following themes: “infill units through the creation of new lots consistent with the size and form of housing in the neighbourhood as a whole…subject to compatibility with the scale of the surrounding neighbourhood…” Physical suitability, available infrastructure and available road access. (s. 3.9.1).

43The NOP states in s. 12.4 Compatibility, that “Development will be compatible with the existing built form by relating to and enhancing the area’s existing physical, character, qualities and scale”. Two development criteria are relevant in this matter and speak to the appropriateness of a proposed development and how the building responds to:

1. “the existing character of the area”.

2. “the existing and emerging built-form elements such as height, massing setbacks, materials and finishes that are incorporated into surrounding buildings”.

44Mr. Ramsey in his evidence went directly into a detailed analysis of the neighbourhood area. He defined it as a stable area with a well-established lotting pattern that has remained relatively unchanged. The lots are generally large in with generous frontages.

45The planner’s analysis of the neighbourhood shows that there is

1. a range of lot sizes with an average of approximately 689 m² with all existing lots being greater than 407 m².

2. lot frontages tend to be generous with the large majority being greater than 15 m in width and on average approximately 19.6 m. There are only seven lots less than 15 m.

3. lot coverages for two storey dwellings are also varied with an average coverage of approximately 19.7% and all but two would comply with the coverage requirement of the Zoning By-law. One and one half storey SDDs have an average coverage of approximately 23.13% and only three have a coverage greater than 35%.

46Making full use of this analysis of the neighbourhood, Mr. Ramsey opined that the proposed development does not fit into, nor is in keeping with, the existing character, existing built form particularly with respect to massing, is an over development of the subject lands and the area is not undergoing redevelopment and therefore there are no emerging built-form elements that alter the existing neighbourhood character. Hence, it does not conform to the NOP for the following reasons:

1. the proposal neither protects, strengthens nor respects the existing neighbourhood character and will not sustain or enhance its character or identity. It is a significant departure from the distinct character based on one and one and one half storey SDD on large lots.

2. the proposed lots are significantly undersized in both area and frontage and would be the smallest in the neighbourhood. The proposal would permit three residential lots where two presently exist.

3. the lot coverage is significantly larger than all but one existing two storey SDD and therefore they will stand out as anomalies within the neighbourhood area.

4. the proposal does not protect the stability of, is not compatible with, and does not preserve the existing neighbourhood character. The introduction of smaller lots will have a destabilizing effect and the increase in lot coverage will permit a much larger SDDs relative to the lot area than currently found and permitted in the area.

5. the undersized lots with a corresponding increase in lot coverage with a matching total gross floor area on the subject lands, is not compatible with the scale found in the surrounding area.

6. compatibly speaks to fit and the proposal does not fit into the existing character, existing built form elements (especially massing) nor are there emerging built-form elements that alter existing character.

47Mr. Chan in his evidence and WS was more policy based. He did not complete an extensive lot area, frontage or coverage analysis but did respond to the information Mr. Ramsey presented in his RWS. He is of the opinion that the proposal conforms to NOP and is appropriate redevelopment of lands by creating one additional lot and one additional SDD in a stable residential neighbourhood. He supported this conclusion with the following reasons:

1. the proposal meets s. 1.1 of the NOP which establishes the criteria for evaluating proposals for change and growth in a ‘policy-led’ framework focusing on long-term objectives. The NOP now focuses on managing change within existing developed areas. It provides direction that the Town has entered a new era where there will be intensification and infill throughout the Town especially with its continued strong economy and demand for housing. The proposal speaks directly to these changing Town conditions that the NOP identifies.

2. SDD dwellings are permitted in Stable Residential Areas and this modest addition serves to supplement existing housing stock in a varied form of ‘gentle’ residential intensification by the creation of one additional lot. The addition of modest, gentle density is in keeping with Provincial and Regional priorities and objectives.

3. the proposal respects, and is compatible with, the existing character of the area as the SDDs are in the same scale and character of the neighbourhood.

4. compatibility does not mean the same but is marked by harmony, regularity, or steady continuity. The proposal does this by sustaining and enhancing the character and identify of the surrounding neighbourhood in lot coverage, area, and frontage.

5. the proposal and ZBA are is substantial compliance in terms of the built-form and massing standards found in the R1-D zone category. The zoning by-law establishes the planned context and the proposal meets all zone standards except lot area, frontage, and coverage such that it is not out of character nor out of scale with homes in the neighbourhood.

6. the lots, although smaller than what is generally found in the neighbourhood, are generally rectangular in shape and therefore are compatible to the existing shape and physical character of lots found in the neighbourhood. The proposed lot sizes and frontages will not destabilize the existing neighbourhood physical character and the variety of lot sizes and orientations will provide for buildings with varied relationships to one another.

7. most of the new development in the Town is intended to be directed to areas that are well served by transit. The subject lands are 135 m away from a York Region Transit Bus Stop.

8. simply using a numeric comparison serves only to replicate each or all the physical characteristics which means the existing numerical status prevail. The net effect of such comparison is to promote ‘static’ conditions within a neighbourhood which is contrary to the NOP which does not require a fit within a range of numbers but rather, a development that is of a physical form complementary and compatible with low rise residential characteristics. Different physical characteristics can respect and reinforce the overall character within the physical context of the local neighbourhood.

9. albeit small, the proposal will provide one additional new SDD lot and thereby will assist in the Town achieving its residential unit targets to 2021.

10. the proposal represents a development that will provide limited intensification in an area designated as a Stable Residential Area “that is in a form and location that will maintain the residential character and amenities. The NOP permits the type of limited intensification proposed”.

48Throughout Mr. Chan’s evidence he reiterated that the proposal is a gentle form of intensification and that compatibility does not mean the same, and the proposal is ‘capable of existing in harmony’ within this neighbourhood.

49Mr. Chan in his evidence and RWS provided a different opinion with respect the compatibility of built form and massing. He took exception to Mr. Ramsey’s view of scale in relation to the gross floor area because he failed to realize what the as-of-right permissions existing zoning would allow. His analysis concluded that the “an as-of-right home on each of the existing lots could be larger and with more floor area that (sic) those that are proposed’. This evidence did not withstand the scrutiny of cross examination, so the Tribunal is unable to rely on that evidence as a credible examination of built form compatibility.

50The Tribunal agrees that neighbourhoods are intended to be stable but not static. Evidence showed that most of the land in the Town is designated as Stable Residential Areas and it is not appropriate to have these areas considered as ‘static’ where there will be no change. The evidence clearly demonstrated that the policy framework has been successful in managing change in the Town’s stable residential areas, but current planning thought is that modest or ‘gentle’ intensification is appropriate in existing neighbourhoods. The Town is entering a new phase of growth management as it has virtually no ‘greenfield’ development opportunities within it borders. As it faces the challenges of managing change within this new era, it will find that there will intensification and infill sought throughout the Town. This matter is an example of such pressure as the existing neighbourhood naturally evolves.

51The Tribunal finds that the proposal is a modest addition to the Town’s existing housing stock. It is a SDD, albeit in a different form, which still represents gentle residential development.

52The Tribunal agrees that compatibility does not mean being the same as, or even being similar to, but instead “implies nothing more than being capable of existing together in harmony”. The Tribunal finds the proposal can co-exist in harmony with the adjacent SDD dwellings and, in the Tribunals view, has two distinct elements that must be considered separately: the first being lot area and frontage, and the second being lot coverage. Each consideration has different impacts and therefore must be analyzed separately.

53With respect to lot size and frontage, the Tribunal prefers the evidence of Mr. Chan and finds a smaller lot size is compatible and appropriate. They will not destabilize the existing neighbourhood’s physical character; the neighbourhood has a variety of lot sizes and frontages which serves to make the neighbourhood interesting as it provides for buildings with varied relationships; creating one additional lot represents ‘gentle’ intensification and proposed lot configuration is rectangular in shape thereby maintaining the physical character of the neighbourhood.

54The Tribunal agrees that a strict numerical analysis of lot areas and sizes within the neighbourhood is useful in providing interesting background, but such a comparison serves only to continue or replicate the existing physical character. This limited approach, by its very nature, leads to significantly reducing the ability to creatively infill within an existing neighbourhood and runs counter to an ‘intensification first’ policy direction. Different lot characteristics can serve to reinforce the overall character and interest of a neighbourhood.

55With respect to lot coverage, the Tribunal finds that when one considers the reduced lot area and frontage, the requested coverage of 34% is too aggressive and is not in keeping with and therefore struggles to fit into the character of the existing residential area. The Tribunal prefers the evidence of Mr. Ramsey and finds the requested lot coverage increase is not appropriate. His area analysis with respect to coverage serves a different purpose as it demonstrates the existing context of the built form in a neighbourhood while the zone standards serve to define the planned built form context.

56The Tribunal agrees that, as Mr. Ramsey described, when one considers the reduced lot size, a corresponding increase in lot coverage and the corresponding total gross floor area on the subject lands is not compatible with the homes found in the surrounding area. The lot coverage is significantly larger than all but one two storey SDD and therefore they would stand out as anomalies in this neighbourhood. To support this conclusion, his uncontested evidence shows that the majority of two storey dwellings have average coverages of less than 25%, being the coverage maximum in the By-law No. 2010 40 (as amended). Evidence showed that the maximum coverage of 25% for two storey dwellings in this neighbourhood has a long history as the previous zone standards found in a R1 D – Ex. 119 was also 25% for two storeys. This clearly shows the Town’s view towards the existing and planned context of those areas zoned R1 D.

57The Tribunal notes that a coverage greater than 25% could be considered compatible and appropriate in this instance but no such alternative was presented, nor any evidence proffered during the hearing that could lead the Tribunal to such a conclusion. Hence, the Tribunal must defer to the planned built form context of 25% found in the R1 D zone standards of By-law No. 2010 – 40 (as amended).

OTHER CONSIDERATIONS

Official Plan Amendment 29 (“OPA 29”)

58After the Appellants’ application was deemed as complete, the Town adopted OPA 29. It is not the in-force policy, but the Tribunal did hear evidence from both planners on whether the proposal had regard for the Official Plan policy changes.

59Evidence is that in January 2019, the Town passed an interim control by-law and directed staff to study development and change in the Town’s established residential areas. The study was known as the ‘Established Neighbourhoods Compatibility Study’ which lead to the adoption of OPA 29 and Zoning By-law No, 2020- 63. OPA changes included:

a. removing the reference to Stable and Emerging Residential Areas and consolidating into a combined Residential Areas Designation.

b. recognition of built form patterns of each neighbourhood and acknowledging the value of diverse housing types throughout residential neighbourhoods.

c. implementing a neighbourhood level framework delineating Residential Areas into four Residential Character Areas.

d. identifying a defined list of pre-dominant characteristics for each, requiring development in Residential areas to be compatible with the existing built form and public realm conditions.

60Mr. Chan through his testimony opined that the ZBA has appropriate regard for OPA 26. The Tribunal agrees.

Zoning By-law No. 2020-63

61The Town’s Zoning By-law No. 2010-40 as amended by By-law No. 2020-63 contains the determinative zone provisions hence the zone standards found in the R1-D zone (Exhibit 6 Tab 6 page 147) prevail in this matter. The proposal meets all the zone standards save and except:

a. Minimum Lot Area – of 396 m² whereas By-law 2020-63 requires 511 m²

b. Minimum Lot Frontage – of 12.19 m² whereas By-law No. 2020-63 requires 15.0 m

c. Maximum Lot Coverage – of 34% whereas By-law No. 2020-63 requires 25% (see Schedule D Exhibit 6 Tab 21 page 420)

62The NOP (s. 16.1.1.3) established criteria that are to be considered when evaluating a ZBA.

63Mr. Ramsey opined that the proposed ZBA does not conform to the NOP, because: while the proposed residential use is similar in built form to adjacent residential uses it is not compatible with adjacent properties; there are potential overlook nuisance and privacy issues; and the lots are undersized and therefore not appropriate. The proposal does not, in his view, satisfy the criteria requirements of this section of the NOP.

64Mr. Chan is of the opinion the proposal conforms to the height (in metres and storey’s) and side and front yard setbacks. Therefore, they cannot be considered ‘out of character’ with the scale of existing homes in the surrounding neighbourhood. Smaller lot areas and frontage do not set a precedent that will destabilize the neighbourhood.

65As noted earlier in this decision the Tribunal finds that the proposed lot frontage and area are appropriate and compatible with the existing neighbourhood while the coverage increase to 34% is not.

CONCLUSIONS

66The Tribunal heard the evidence from two qualified land use planners and the benefit of material provided in several exhibits (including participant statements that were submitted). Infilling and intensification in existing neighbourhoods is an ongoing challenge but has found, and will continue to find, its way into existing neighbourhoods.

67The Tribunal finds, for all the foregoing reasons, that the proposed lot area and frontage represents good planning and is in the public interest. It has appropriate regard to s. 2 of the Planning Act, is consistent with the PPS, conforms to the Growth Plan, the YROP and the NOP. In contrast, the coverage requested as part of the ZBA is too aggressive and would result in a built form that is not in keeping with the existing or planned built form context of the neighbourhood.

68The matter is local in context. Nevertheless, is essentially one that: recognizes the evolution of Provincial policy direction. Provincial policy focus includes: an intensification first perspective; encourages compact urban form by directing the majority of growth to settlement areas; promotes a diverse mix of land uses to optimize the use of existing urban land supply, help avoid the over designation of land for future urbanization, and make better use of existing infrastructure, transit and public service facilities; and supports the importance of providing much needed housing supply. Provincial policy has weight in the Tribunals consideration of this matter.

69There has been no consent application provided to the Town nor is this matter before this Tribunal. It is nevertheless helpful for the Tribunal to give some direction with respect to the anticipated consent application that would be consistent with this decision. Any severance prepared by the Appellants should be in keeping with the site plan found in Exhibit 8 Page 009 entitled “Site Plan – 249 Kathryn Crescent Drawing A0-1” m.

70The Tribunal agrees that the lot area and frontage provisions of the ZBA request is appropriate and speaks directly to Provincial and upper tier municipal planning policy. It will not destabilize the existing neighbourhood’s physical character. The existing variety of lot sizes and frontages serves to make the neighbourhood interesting as it provides for buildings with varied relationships to the street. It indeed represents a form of ‘gentle’ intensification.

71The Tribunal finds that a strict numerical analysis of lot areas and sizes within the neighbourhood only serves to continue or replicate the existing physical character which by its nature leads to reducing significantly the ability to creatively infill within an existing neighbourhood and runs counter to an ‘intensification first’ policy direction. Different lot characteristics can serve to reinforce the overall character and interest of a neighbourhood.

72The Tribunal finds that when one considers the proposed reduced lot size a corresponding increase in lot coverage, which results in a matching increase in total gross floor area on the subject lands, is too aggressive and is not compatible with the majority of homes found in the surrounding area. This conclusion does not mean that a coverage of greater than 25% would necessarily be incompatible and inappropriate in this instance but no such alternative compelling evidence was presented, nor any evidence proffered during the course of the hearing that could lead the Tribunal to that conclusion. The Tribunal would encourage the parties to meet and determine if there is a lot coverage percentage that would be both compatible to the neighbourhood and appropriate for the proposed homes to be constructed on the subject lands. If a consensus is found, it could be brought forward on consent with the ZBA and included as part of the Tribunal’s Final Order.

73Evidence shows that the Town’s policy framework for existing neighbourhoods has been successful in managing the pressures for change. With the Town entering a new phase of growth and development it must respond to the continued evolution of public policy. As existing neighbourhoods are not going to be ‘static’ or remain the same one will find that changes can be made within these neighbourhoods that are positive and constructive.

74The Tribunal notes the decision of City Council not to approve this application. The courts (Minto Communities Inc. v. Ottawa (City), 2009 CanLII 65802 (ON SCDC), 2009 CarswellOnt 7349) determined that the Municipal Council is the first to determine the public interest but “…the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate...”

75The Tribunal is not presented with a draft ZBA to implement the proposal, but the Appellants did present suggested exceptions from the existing zone standard required (Exhibit 6 Tab 22 page 573). It is evident the Applicant has a substantial path of City approvals still to follow before a Final Order may be issued. The Tribunal is prepared, for the reasons given in this Decision, to make an Interim Order approving exceptions to the lot size and frontage but not to an increase in lot coverage.

INTERIM ORDER

76THE TRIBUNAL ORDERS on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [77] below, THAT the appeal against By-law No. 2010–40 of the Town of Newmarket is allowed in part, and By-law No. 2010–40 is hereby amended as follows:

Exception zone standards for properties known as 247, 249 and 251 Kathryn Crescent are permitted, allowing the following zone standards:

a. a Minimum Lot Frontage – 12.19 metres.

b. a Minimum Lot Area – 396 square metres.

For clarity, that part of the Appeal relating to the request for an amendment to the exception zone standards for Maximum Lot Coverage in By-law No. 2010-40 is dismissed.

77The issuance of the Final Order is contingent upon the confirmation, satisfaction or receipt of the following pre-requisite matters:

(a) The Tribunal has received, and approved, the final draft of the Zoning By-law Amendment, inclusive of a holding provision with a condition requiring a storm water management plan for the subject lands completed to the satisfaction of the Director of Development Services, in a form satisfactory to the Parties. The Tribunal authorizes the municipal clerk of the Town of Newmarket to assign a municipal by-law number.

(b) The Applicants have obtained a provisional consent to sever the subject properties that were the subject of this Appeal pursuant to s. 53(1) of the Planning Act, which is consistent with the plan submitted in this Appeal with the title ‘Site Plan – 249 Kathryn Crescent” and marked as Exhibit 8 (page 009).

78If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all contingent pre-requisites to the issuance of the Final Order set out in paragraph 77 above have been satisfied, and request the issuance of the Final Order, by Thursday, March 31, 2022, the Appellants and the Town shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may hereafter impose, the Tribunal may then dismiss the Appeal.

79The Panel Members will remain seized for the purposes of the issuance of the Final Order and with respect to the contingent Interim Order set out above. In the event that any matters arise, which are related to the implementation of this Interim Order, the Tribunal may be spoken to.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

MEMBER

Ontario Land Tribunal

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

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.