Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 12, 2021
CASE NO(S).: PL210151
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Branthaven Turnberry Inc.
Subject: Minor Variance
Variance from By-law No.: 2020
Property Address/Description: 2273 Turnberry Road
Municipality: City of Burlington
Municipal File No.: 540-02-A-055/2020
LPAT Case No.: PL210151
LPAT File No.: PL210151
LPAT Case Name: Branthaven Turnberry Inc. v. Burlington (City)
Heard: September 1, 2021 via video hearing
APPEARANCES:
Parties
Counsel*/Representative
Branthaven Turnberry Inc. (“Applicant/Appellant”)
Denise Baker*
City of Burlington
Christina Kapelos*
Millcroft Greenspace Alliance
Daintry Klein (Representative)
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
1This is a hearing regarding an appeal by Branthaven Turnberry Inc. on the refusal of the Committee of Adjustment (“COA”) of the City of Burlington (“City”) to grant eighteen variances pursuant to section 45(12) of the Planning Act (the “Act”).
2The application is for relief from Zoning By-law number No. 2020. The proposed development consists of seven (7) 6.0 metre (“m”) wide 3-storey townhouses, twenty-seven (27) 5.44 m wide 3-storey townhouses, sixteen (16) 6.1 m wide 3-storey rear lane townhouses and seventeen (17) 6.0 m wide 2-storey townhouses in standard condominium format to permit the construction of a 67-unit standard condominium townhouse development consisting of 12 buildings.
3The subject property is municipally known as 2273 Turnberry Road in the City of Burlington and is found in the Millcroft Community. The Millcroft Community is bounded by Upper Middle Road in the south, Dundas Street in the north, Walkers Line in the west and Appleby Line in the east.
4The Subject Lands are rectangular shaped with a lot area of 1.509 hectares (“ha”)., a lot frontage of 112.49 m along Appleby Line and a lot depth ranging between 125 m and 130 m. The Site abuts streets on three sides. Under the City’s zoning by-law, the Appleby Line frontage is considered the front lot line, the Taywood Dr. frontage is the street side lot line and Turnberry Road frontage is the rear lot line. The remaining property line abutting the subject lands is considered a side lot line. The Site is currently vacant but does include a temporary sales showroom and related parking area.
PROPOSAL AND RELIEF REQUESTED
5Eighteen variances to the zoning regulations were requested to ensure compliance with the Zoning By-law. For the purposes of this decision they have been grouped into four categories which are: density; buildings, (dealing with height and setbacks); parking, (dealing with visitor parking); landscaping, (dealing with landscape areas and amenity space).
Density
6Variance 1: To permit a maximum density of 44.40 units per hectare for a 67-unit standard condominium development consisting of 12 buildings whereas By-law No. 2020 permits a maximum density of 40 units per hectare (60 units).
Buildings
7Variance 2: To permit a maximum building height of 3-storeys instead of the maximum building height of 2 storeys for proposed buildings (Units 1-4) & (Units 8-12).
8Variance 3: To permit a maximum building height of 12.4 m instead of the maximum permitted 11.5 m for proposed buildings (Units 1-4) & (Units 8-12).
9Variance 8: To permit a 3.5 m rear yard abutting Turnberry Road instead of the minimum required 9 m (Unit 33).
10Variance 9: To permit a 4.0 m minimum rear yard setback abutting Turnberry Road for proposed balconies instead of the minimum required 9 m (Unit 1).
11Variance 10: To permit a 4.6m rear yard setback abutting Turnberry Road instead of the minimum required 8.35 m for proposed roofed over porches including roof overhang and steps (Unit 33). This variance affects 3 buildings (Building 7 (unit 33), Building 8 (Unit 34) and Building 12 (Unit 67)) adjacent to Turnberry Road.
12Variance 12: To permit a street side yard setback of 3.9 m abutting Taywood Drive instead of the minimum required 6 m. This variance affects the 4 buildings (Building 1, Building 2, Building 3 and Building 4) adjacent to Taywood Dr.
13Variance 13: To permit a 2.6 m street side yard setback abutting Taywood Drive instead of the minimum required 5.35 m (6 m-0.65 m encroachment) for proposed roofed over porches including roof overhang and steps. This variance affects the 4 buildings (Building 1, Building 2, Building 3 and Building 4) adjacent to Taywood Dr. (Building 2).
Parking
14Variance 4: To permit 20 visitor parking spaces (0.3 spaces/unit) instead of the minimum required 34 spaces (0.5/unit) for a proposed 67-unit standard condominium.
15Variance 5: To permit driveways and parking lots to be setback 0.90 m from a wall of a building containing windows of habitable rooms instead of the minimum required 3.0 m (Unit 17).
16Variance 6: To permit a parking lot to be setback 1.2 m from Appleby Line instead of the minimum required 4.5 m (Parking spot 1).
Landscaping
17Variance 7: To permit a 1.2 m landscape area abutting Appleby Line instead of the required 6 m (Parking Spot 1).
18Variance 11: To permit a 3.1 m setback for the privacy screens abutting Turnberry Road instead of the required 9 m setback (Unit 34+67 Fencing).
19Variance 14: To permit privacy areas that are not separated from other privacy areas and communal areas by a privacy screen in that the side opposite the dwelling unit remains open for a proposed 67-unit standard condominium townhouse development.
20Variance 15: To permit a 1.3 m landscape area abutting Taywood Drive instead of the required 4.5 m (Building 2 – Landscape Risers, that are not perpendicular through landscape area) This variance affects the landscape area in the vicinity of the 4 buildings (Building 1, Building 2, Building 3 and Building 4) adjacent to Taywood Dr.
21Variance 16: To permit a 3.1 m landscape area abutting Turnberry Road instead of the minimum required width of 4.5 m (Unit 33 / Unit 34+67 Fencing).
22Variance 17: To permit a 1.2 m landscape area abutting Appleby Line instead of the required 6 m (Parking Spot 1).
23Variance 18: To permit proposed light standards, retaining wall, utility pedestals, entry columns and snow storage to be located in a required landscape area.
REQUESTS FOR PARTY STATUS
24Ms. Daintry Klein, on behalf of the Millcroft Greenspace Alliance, requested Party Status. She informed the Tribunal that Millcroft Greenspace Alliance had been involved in the planning process when the matter was before the Committee of Adjustments on February 3, 2021, they then incorporated to represent neighbouring residents who had concerns with the proposed development.
25By virtue of Millcroft Greenspace Alliance being authorized to speak on behalf of area residents who own lands adjacent to and in the neighbourhood of the Subject Property, Tribunal is satisfied that there is reasonable interest and grounds to add Millcroft Greenspace Alliance to these proceedings.
26The Tribunal, on consent of the parties, granted Party status to Millcroft Greenspace Alliance.
REQUESTS FOR PARTICIPANT STATUS
27The Tribunal received twelve requests for Participant Status which were noted during the hearing. No objections were raised by the Parties and of which, the Tribunal will be weighed accordingly in this decision.
Neighbourhood and Surrounding Area
28The Millcroft Community was established in the late 1980s and contains a mix of low, medium and high-density housing, parks and recreational facilities, commercial uses and open space. Medium density developments are primarily located at the periphery of the community including the Appleby Line corridor.
29Lands in the vicinity of the Subject Lands include the following:
North: Directly opposite the Subject Lands on the north side of Taywood Dr. is a 60-unit townhouse development with a municipal address of 2511 Boros Rd. and 7 street townhouses along Boros Road. This development includes 2 storey dwellings. On the west side of Boros Road, north of Turnberry Rd. are lots containing 2-storey single detached dwellings.
South: Abutting the Subject lands on the south side is the Millcroft Towns development consisting of 79-unit bungalow style townhouses. Except for the 2 storey units facing Appleby Line this development includes mostly 1 storey dwellings. The site layout comprises an internal driveway network that includes a window street adjacent to Appleby Line and street townhouses facing Turnberry Road.
West: Opposite the Subject Lands on the west side of Turnberry Rd. are lots with semi-detached dwellings as well as one lot containing a triplex. The semi-detached dwellings and triplex dwellings are 2-storey structures. All of the lots have access directly from Turnberry Rd. On Taywood Dr., west of the Turnberry Rd. is a mix of lots with single detached, semi-detached and triplex dwellings. The semi-detached and triplex dwellings are located on the south side of Taywood Dr. while the single detached dwellings are located on the north side.
East: Opposite the Subject lands on the east of Appleby Line is the Appleby Crossings retail plaza.
30According to the City’s Official Plan the roads in the vicinity of the Subject Lands are classified as:
(a) Appleby Line: Major Arterial
(b) Taywood Drive.: Collector
(c) Turnberry Road: Local Street.
31In November 2020 the Applicant submitted a minor variance application (the “Initial Application”) to construct a 67-unit townhouse development consisting of seven (7) 6.0 m wide 3-storey townhouses, twenty-seven (27) 5.44 m wide 3-storey townhouses, sixteen (16) 6.1 m wide 3-storey rear lane townhouses and seventeen (17) 6.0 m wide 2-storey townhouses in standard condominium format at 2273 Turnberry Road. Eighteen variances under Zoning By-law No. 2020, as amended (the "Zoning By-law") were requested to facilitate the proposed development. These variances related to density, building height, setbacks, landscaping, parking requirements and privacy screens.
32On January 8, 2021 the Applicant advised the City that the Application had been revised to reduce the proposed height of buildings 1-4 and 8-12 from 13.5 m to 12.4 m resulting in a variance to permit a building height of 12.4 m whereas the zoning By-law permits a maximum building height of 11.5 m. In support of the Application an updated a site plan sketch and building elevation drawings was submitted to the City.
33On February 3, 2021 the Application was presented at a public hearing of the Committee of Adjustment. The Application was denied by the Committee of Adjustment. The Applicant subsequently appealed the Committee of Adjustment’s decision.
Minor Variance Appeal – [section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
34When dealing with minor variance applications the Act sets out four tests that must be satisfied in order to authorize each variance:
The general intent and purpose of the Official Plan is maintained.
The general intent and purpose of the Zoning By-law is maintained.
It is desirable for the appropriate development or use of the land, building or structure.
It is minor in nature.
35In addition, section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in section 2 of the Act, as well as regard for the decision of the municipality and the information it considered in the course of making its decision, in accordance with section 2.1(1) of the Act.
PLANNING EVIDENCE
36Ms. Kapelos, Counsel for the City, informed the Tribunal that the City’s position in this appeal would be supportive of the variances that were recommended by City planning staff, and ultimately refused by the City’s Committee of Adjustment. As a result, the City would be supporting the approval of the variances by the Tribunal.
37The Tribunal heard from two planners, both qualified to give expert opinion planning evidence at this hearing. Ms. Ruth Victor tendered evidence in favour of the proposed variances and Mr. Allan Ramsay spoke in opposition.
Provincial Policy Statement, 2020
38Ms. Victor took the Tribunal to the following sections and explained their relevance to directives set out in the PPS regarding transit and intensification with regard to the proposed minor variances.
39Section 1.1 of the PPS recognizes the building of strong communities by Policy 1.1.1(a) promoting efficient development and land use patterns, particularly in areas well served by public transit. Burlington Transit provides service to the Brant Street Go Transit station on Route 12 which travels along Appleby Line.
40Policy 1.1.1(e) promotes the integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit investments, and standards to minimize land consumption and servicing costs. The proposed development adheres to minimizing land consumption by introducing townhouses to the site which will utilize existing municipal services.
41Policy 1.1.3.2(a), (e) and (f) mandates that, among other matters, land use patterns within settlement areas are to be based on densities and a mix of land uses which efficiently use land and resources, support active transportation and which are transit supportive, where transit is planned, exists or may be developed. Transit opportunities have been considered and were identified by the Applicant which are provided on Appleby Line.
42Policy 1.1.3.3 directs planning authorities to identify and promote opportunities for transit-supportive development, accommodating a significant supply and range of options through intensification and redevelopment. In this respect, Ms. Victor identified the proposed development as being consistent with other housing developments in the area along side well supported transit lines.
43Section 1.4, Housing, requires approval authorities to provide for an appropriate range and mix of housing options and densities required to meet projected requirements of current and future residents of the regional market area. This proposal meets the ROP requirement that 50% of new housing units built annually in the Region are to be in the form of townhouses or multi-storey buildings. Ms. Victor opined that the development of the subject lands for townhouses meet this policy.
44Policy 1.6.7.4 directs that land use patterns, density and a mix of uses should be promoted that minimize the number of vehicle trips and support current and future use of transit and active transportation. Ms. Victor stated local transit is provided in the area and suitable amenities exist within walking distance.
45The Tribunal is of the opinion that the proposed development is consistent with the PPS directives as it represents appropriate intensification within existing settlement area, supportive of transit, with walkable amenities and assists in the provision of a full range of housing.
The Growth Plan (A Place to Grow) 2020
46Ms. Victor opined that the vast majority of growth is to be directed to settlement areas that have a delineated built boundary, have existing or planned municipal water and wastewater systems, and support the achievement of complete communities. It was her opinion the subject property meets these criteria as it is located within the built boundary of Burlington as identified by City. Water and wastewater facilities have been constructed in the immediate area to service the proposed development.
47Mr. Ramsay stated that he was in agreement with the observations made in Ms. Victor’s testimony respecting both the PPS and the Growth Plan.
48The Tribunal is satisfied that the variances align with objectives of the Growth Plan namely that the proposal is within the delineated built boundary, have existing or planned municipal water and wastewater systems, and support the achievement of complete communities.
Do the proposed minor variances from the Zoning By-law maintain the general intent and purpose of the Region of Halton Official Plan?
49Ms. Victor informed the Tribunal development policies for land use designation can be found in the local official plan. Such development must also meet the policies of the Regional Official Plan including the provisions regarding services and transportation facilities including road widenings of Regional Roads. The ROP also contains policies related to housing targets and built form.
50Regional Official Plan designates the lands as Urban Area. The development of lands in the Built-Up Area of Burlington are to add 8300 new housing units to the defined built-up area by 2031. As mentioned by Ms. Victor, Policy 86. 6(a) states that at least 50% of new housing units built annually in the Region are to be in the form of townhouses or multi-storey buildings.
51Subsection 81. (1) states: “Direct development with higher densities and mixed uses to Intensification Areas.” Policy 81. (7.2) requires local municipalities to consider intensification and development of intensification areas as the highest priority for development approvals within these areas. Appleby Line is a Higher Order Transit Corridor and as such, the area abutting Appleby Line can be classified as an Intensification Area under the ROP policies with specific reference to Policy 81.
52Mr. Ramsay agreed with the evaluation of the ROP as set out by Ms. Victor.
53The Tribunal after having been taken through the objectives and directions set out in the ROP is satisfied that the variances sought meet the density requirements and that provide for transit opportunities through the adjacent Appleby Line which is a Higher Order Transit Corridor. Further, the introduction of townhouses on the site aids the Region in meeting its housing targets.
54The Tribunal is satisfied that requested relief sought conforms to the Regional Official Plan policies.
Do the proposed minor variances from the Zoning By-law maintain the general intent and purpose of the City of Burlington Official Plan?
55The City Official Plan Schedule B designates the lands as Residential – Medium Density.
Density – Variance 1
56The Official Plan establishes a density range of 29 to 50 units per hectare within the Residential-Medium Density designation. The Official Plan also recognizes the amount and form of intensification must be balanced with other planning considerations such as infrastructure capacity, compatibility and integration with existing residential neighbourhoods and also requires new residential development to be compatible with surrounding properties.
57Ms. Victor informed the Tribunal one permitted type of townhouses has a maximum density of 40 units per hectare and a maximum height of 2 storeys while another (stacked townhouses) has a maximum density of 50 units per hectare and a height of 3-storeys.
58Ms. Victor noted that the property’s location on the periphery of the Millcroft neighbourhood and adjacent to Appleby Line makes it more conducive to moderate density increases where impacts to adjacent developments are minimized. She stated the density sought through Variance 1 is moderate at 44.40 units/ha compared to the required 40 units/ha. Given the various types of townhouse complexes in the vicinity to the subject lands (1-3 storey townhouses) and the adjacent townhouse complex.
59Mr. Lambert stated, the Applicant/Appellant is proposing an increase in density within the permitted density of the Residential-Medium Density designation; however, the additional seven dwelling units cannot be accommodated without significant reductions in setbacks, landscaping and design features dealing with privacy, parking and other matters. It was his opinion the proposed increase in density is an overdevelopment of the Site and does not strengthen or enhance the character of the existing neighbourhood.
60The Tribunal is satisfied that the proposed density requested 44.40 units/ha (67 units) compared to the permitted 40 units/ha (60 units) is minor and that the resulting relief sought will not result in an overdevelopment of the subject lands. Further, this proposal increases the amount of available housing stock within the existing neighbourhood that is well serviced by transit options and amenities.
Buildings (dealing with height and setbacks) - Variances 2 and Variance 3
61Ms. Victor drew attention to Part II, section 6.5 states the following with regards to Design Guideline Policies:
a) The density, form, bulk, height, setbacks, spacing and materials of development are to be compatible with its surrounding area.
62Part III, subsection 2.5.4 directs policies for infill development:
b) New infill development shall be compatible with the surrounding development in terms of height, scale, massing, siting, setbacks, coverage and amount of open space.
63Ms. Victor opined that while the Official Plan does not directly speak to increases in height for medium-density residential areas it strives for compatible development. The subject property’s location at the periphery of the neighbourhood and along Appleby Line would allow for some limited increase in height and/or number of storeys. She opined that the industry trend currently is for three-storey townhouses to allow for an improved streetscape by incorporating the garages into the structure, improved building design and additional interior space. Given the separation distances from abutting development, due to the intervening presence of public and private streets, the additional storey in her opinion, has no adverse impact.
64Ms. Victor referred to the use of a 45-degree angular plane to assess impact and compatibility for intensification as a common tool and one adopted by the City for more intense developments than proposed relief sought through this application. This tool provides a clear understanding that the proposed height setbacks and built form will have no undue physical or functional negative impact on the adjacent existing homes, that the proposed townhouses can co-exist with the adjacent homes and are therefore compatible under the policies of the official plan.
65She informed the Tribunal that the Official Plan relies on more broad-based design principles relating to things such as compatibility, landscaping and scale. Ms. Victor stated the proposed development is permitted for the subject property under the OP with respect to built form and density and is considered as compatible with the surrounding area.
66She illustrated to the Tribunal that the three storey height transitions to the two storey homes located across Taywood and Turnberry. She opined that based on a review of the policies in the OP for residential intensification and residential infill, she concluded that the proposal for the subject property with variances for density, height, setbacks, meet the intent, purpose and conform to the Official Plan.
67Mr. Ramsay stated the introduction of taller, 3 storey townhouse dwellings on the Subject Lands does not achieve the balance of the housing intensification objective. The taller, 3-storey buildings would be out of scale with the 1 and 2 storey buildings found throughout the neighbourhood area. It was his opinion the introduction of 12.4 m high, 3-storey dwellings does not maintain the general intent and purpose of the Official Plan.
68With respect to setbacks, Ms. Victor informed the Tribunal, while the technical frontage is on Appleby Line, most units front onto internal private roads or Taywood Dr. As such, the Turnberry Rd side of the property acts as a side lot line. The proposed setbacks to Turnberry Rd are considered compatible and provide adequate spatial separation to units 1, 67, 34 and 33. There are only four end units along Turnberry Rd, additional spatial separation is provided through the rear amenity areas and internal roads. Only four units will have a wall facing Turnberry Rd.
69Ms. Victor opined that the proposed setbacks to Taywood Dr are appropriate as there are no garages and the proposed front covered porches and walkways create an inviting and pedestrian oriented gateway to the Millcroft neighbourhood. The reduced front yard setback along Appleby Line is to a proposed accessory structure, which is open aired with no walls and adjacent to one end unit (unit 17). Adverse effects of massing or streetscape compatibility are not anticipated.
70Mr. Ramsay stated that the proposed 2 and 3 storey buildings will be situated too close to the street, resulting in an imposing-built form along the streetscape. This situation, coupled with the larger building mass associated in the proposed 3-storey buildings, will negatively impact the streetscape. The proposed buildings will stand out rather than be integrated into the streetscape.
71The Tribunal is satisfied that the proposed development will provide for a built form that is compatible in height, scale, massing and form with the existing and prevailing built form in the immediate vicinity of the Subject Property which is consistent with nearby 3-storey townhouses blocks.
72In particular, the Tribunal notes agreement with the deployment of good urban design, the utilization of angular planes which provide a transition between the surrounding uses to ensure the proposed height variance is compatible. The Tribunal is of the opinion the relief sought through the variance is reflective of the OP, and is minor in nature.
Parking, (dealing with visitor parking) – Variances 5 & 6
73Ms. Victor stated that the parking area is minimal at five spaces, so an expansive paved area is not anticipated. She and City staff do not anticipate adverse effects resulting from the reduced setback to a parking lot from Appleby Line given it applies to five specific parking spaces only and is adjacent to a highly landscaped portion of the property which has a more intense planting plan. The proposed reduction in visitor parking is also considered acceptable given the subject property’s location along Appleby Line/transit routes and the inclusion of two occupant spaces per unit.
74The Tribunal heard that functional visitor parking will be provided at the individual units similar to the manner in which it is provided at low density residential development. The spaces per unit plus the proposed visitor parking is deemed sufficient to support the subject development. The proposal contains three types of townhouse dwelling in a standard condominium tenure to provide a choice between dwellings with single car garages and double car garages. The proposed development is located in close proximity to shopping and employment areas and public transportation is available in the immediate area.
75The Tribunal was advised that the City’s Transportation Department has conducted its own technical review of the proposed reduction and also concludes that the proposed visitor parking is appropriate for this proposed use.
76Mr. Ramsay stated the proposed parking areas in the north-east and south-east corners of the Site will have reduced setbacks and will be highly visible from Appleby Line. These parking areas will stand out and will not be well integrated into the Appleby Line streetscape.
77The Tribunal is satisfied that the proposed variances requested to the visitor parking will be sufficient to meet the requirements of the development. Further, through the enhanced plantings the impact from the sight lines of Appleby Line will be minimal in nature.
78The Tribunal was informed at the onset of the hearing that Variance 4 has been removed from the Issues List as the City has amended the by-law which provides for a visitor parking ratio of 0.30 parking spaces per unit instead of the previous standard of 0.5 spaces per unit. The variance application implements this new City standard.
Landscaping (dealing with landscape areas and amenity space) – Variances 7, 11, 14 ,15, 16, 17 & 18
79Ms. Victor opined that the requested reduction in landscape areas are not anticipated to pose adverse effects to the surrounding properties given the increased separation from the private and public roads, site orientation, design features and enhanced landscaping features throughout the site. The reduced landscape area along Turnberry Rd pertains to units 33, 34 and 67’s rear amenity fencing. She opined she does not anticipate adverse effects given unit 33 is 2-storeys in height and the rear amenity fencing provides a more compatible and consistent contribution to the streetscape.
80She noted that additional landscaping is provided throughout the overall site. With respect to setback reductions along Taywood Dr, the inclusion of front covered porches and the absence of front facing garages help to create a more pedestrian oriented streetscape overall. While the spatial separation is reduced, it is more appropriately designed to promote compatibility.
81Both she and City staff do not anticipate concerns from the inclusion of light fixtures, retaining wall, utility pedestals, entry columns or snow storage in this required landscape area as they have been designed to complement the site development, are minimal in size, increase pedestrian safety, ensure parking and roads are not impacted by snow, and will not negatively impact the overall streetscape design.
82Mr. Ramsay stated the permitting snow storage in landscape areas, will impact the use of the landscape area for the planting of trees, shrubs, flower beds, or a combination thereof and other decorative landscape features.
83The Tribunal agrees that the overall landscape requirements and enhanced plantings analysis provided by Ms. Victor will not result negatively to the surrounding properties or the neighbourhood as a whole. Further, the Tribunal noting the City’s acceptance that parking and roads will not be negatively impacted by temporary snow storage or its removal.
Do the variances maintain the general intent and purpose of the Zoning By-law?
Density
84Ms. Victor informed the Tribunal that although the subject property is zoned as RM 3-104, the construction of standard townhouses is subject to the RM2 zone regulations. The by-law identifies the zone on the subject lands as RM3 with an Exception Number 104, the regulations refer back to the RM2 zone for provisions relating to the development of standard townhouses and a retirement home. Ms. Victor opined that this cross-reference within the site-specific provision introduces a large degree of uncertainty as to what the original intent and purpose of the zoning regulations may have been with respect to density and height for standard townhouses.
85She stated that if the intent of the by-law was to restrict standard townhouses to 2 storeys in section 10.4, Building Height, the provision should have contained the additional wording “except for standard townhouses which are regulated by section 9.4 b)” to provide clarity on the application of the by-law.
86Given the above design considerations and the subject property’s location along Appleby Line, Ms. Victor opined that the moderate increase in density may be accommodated and that Variance 1 maintains the general intent and purpose of the City’s Zoning By-law.
87It was Mr. Ramsay’s opinion that the additional dwellings cannot be accommodated on the site without significant reductions in setbacks, visitor parking requirements and increases in building height. The additional density, coupled with the other variances, will negatively impact the streetscape character. An increase in density and the related increase in building mass is not desirable for the orderly development of the Site and area.
88The Tribunal notes the ambiguity of the zoning by-law relating to standard townhouses. As such, the by-law refers back to RM2 zone for provisions for standard townhouses. Not only does this zone permit standard townhouses as of right on the site but in fact would allow the construction of 3-storey retirement home which would be less in keeping with the proposed townhouses mirrored in the vicinity, albeit of different design.
89The Tribunal accepts the testimony of Ms. Victor that the requested variance in density is moderate in nature.
Buildings (dealing with height and setbacks) - Variances 2 and Variance 3
90Ms. Victor stated that Exception 104 directs that the only permitted uses for the subject property are standard townhouses, stacked townhouses and retirement homes, along with some other zone regulations. The provisions of the zoning by-law allow for 3-storey development as of right on this property. The proposed height at 3-storeys is the same as the permitted height albeit for a different form of townhouse.
91Ms. Victor opined that the general intent and purpose of the zoning by-law is met as adequate setbacks from property lines avoid impacts on abutting properties. The reduced setbacks are on street fronts are in keeping with the good design principles. Ms. Victor opined that compatibility and character does not mean the same, but rather respecting and reinforcing both built form and natural features prevalent.
92Mr. Ramsay maintained the variances permit buildings and related features to locate too close to the street. Within the neighbourhood area similar setbacks are not found. The variances affecting the setback from the Taywood Dr. property line will permit a development pattern that is not desirable for the appropriate development of the land. The variances will permit buildings and roofed over porches to locate too close to the street. Within the neighbourhood area similar setbacks are not found. Further the proposed variances also exceed the setback regulations for front yard as well as street side yard situations and will facilitate a development where the height, massing and scale and reductions in setbacks is neither compatible nor well integrated with the surrounding neighbourhood area.
93The Tribunal finds the variances pertaining to setbacks are minor in nature as there is no negative impact on an adjacent property and provide for good design principles. Further, the height of the proposed townhouses is in line with the as of right use for other similar townhouses and other possible uses on the property such as a retirement home or stacked townhouses which would be at the same height. This proposal has been assessed based on potential impact through the application of a 45-degree angular plan analysis and no impact or concerns were identified through this assessment. The Tribunal does not find, upon the evidence, including the visual evidence, that the height and mass will improperly dominate the streetscape or detract from other homes.
Parking, (dealing with visitor parking) – Variances 5 & 6
94The intent of the zoning regulations related to parking setbacks is to ensure noise and visual impacts from driveways, parking spaces and parking are minimized.
95Given that the proposed development provides individual parking in garages and driveways, is located along transit routes, and also given that Transportation staff has deemed the amount of visitor parking acceptable for the proposed development, the Tribunal is of the opinion that the general intent and purpose of the City’s Zoning By-Law has been met.
96The general intent and purpose of the zoning by-law with respect to residential parking standards is expressed in the recent amendment to the by-law which provides for a visitor parking ratio of 0.30 parking spaces per unit instead of the previous standard of 0.5 spaces per unit. Therefore, Variance 4 is withdrawn, on consent, as it implements the new City standard.
Landscaping (dealing with landscape areas and amenity space) – Variances 7, 11, 14 ,15, 16, 17 & 18
97Section 10.2 of the zoning by-law requires a landscape area of 6 m abutting a street having a deemed width greater than 26 m which in this case is Appleby Line and a landscape area of 4.5 m abutting a street with a deemed width less than 26 m.
98Ms. Victor stated that the intent and general purpose of the by-law is to provide screening for the residential uses from the street level noise and activities. The intent of the by-law is met through the inclusion of landscaping in the front yards of units fronting onto Appleby Line. With respect to Taywood, the width of the landscaping is reduced to provide a direct relationship of the front doors of these rear lane townhouses with the street. On Turnberry the landscape area is reduced to provide for privacy fencing at the rear of units in Buildings 7, 8 and 12. At their widest points, these landscape strips exceed the required width.
99Mr. Ramsay stated that keeping one side of the privacy area open will allow for unwanted views into the area intended for the exclusive and private use of the occupants of a dwelling.
100The Tribunal finds that the variances are minor in nature as there is no direct impact on abutting properties; the landscaping on this site does not function as a buffer between new development and existing development. The landscaping proposed provides an appropriate streetscape and pedestrian environment around the perimeter of this site. The use of the enhanced plantings and an open aired accessory structure add to the landscape provisions.
It is desirable for the appropriate development or use of the land, building or structure.
101The subject site is located along Appleby Line which is identified as a major transit corridor which supports both local and regional transit systems. The development will utilize already existing municipal services in the area and is located within walking distance to amenities. The intensification meets the objectives of both the Region and City’s Official Plans by providing various sized townhouses which will support a moderate density increase in an established neighbourhood supported by schools and parkland.
It is minor in nature.
102The variances are minor in nature due to the minor impact on existing development given the existence of public and private streets on four sides of the property. The variances are appropriate for development of the property by creating a built form that is consistent with the neighbourhood
CONCLUSION
103Upon the whole of the evidence, and the above-mentioned findings of consistency and conformity, the Tribunal finds that the proposed minor variances are consistent with the PPS and conform to the Growth Plan as they represent appropriate intensification within existing settlement area, supportive of transit, utilize municipal services and assist in the provision of additional housing stock.
104The Tribunal preferred the evidence of Ms. Victor and finds the requested variances are desirable for the appropriate development or use of the land.
105The Tribunal accepted Ms. Victors’ opinion that there would be no unacceptable impacts on neighbouring properties.
106The Tribunal finds that the proposal maintains the general intent and purpose of the residential intensification goals and residential density targets of the ROP particularly as it relates to the Region’s desire for the creation of townhouse units.
107The Tribunal finds the proposed use of the land is in keeping with the character of the area and permitted uses within the Official Plan. The Tribunal finds the requested variances would not result in a change to the intended land use of the subject property and, the intent and purpose of the ZBL would be maintained.
108The Tribunal finds that the properties which front on to Taywood Drive enhance the pedestrian realm and encourage interaction with the street with covered front porches with adequate space for seating and helps to create an improved pedestrian experience and gateway to the community.
109Neighbourhoods are not static; they evolve over time as changes are introduced. There is no dispute that a change to a zoning by-law with variances is a change on the ground that becomes part of the evolution of a neighbourhood. So too is the introduction of modern architectural design elements which change the look of buildings within neighbourhoods.
110Each of the eighteen variances sought were considered on their individual merit and within their particular context as they were measured against the four tests. The Tribunal notes that comments raised by Participants were addressed through the testimony of Ms. Victor and were weighed accordingly.
111The Tribunal finds the requested variances, both individually and cumulatively, are minor and would result in a form of development which is desirable for the appropriate redevelopment of the subject property.
112Based on the totality of the evidence, the Tribunal was persuaded that the seventeen variances (withdrawal of Variance 4, on consent) are minor in nature, represent good planning and are in the public interest.
ORDER
113The Tribunal orders that the appeal is allowed and the variances to Zoning By-law No. 2020 are authorized.
“D. Chipman”
D. chipman
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.