Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 17, 2021
CASE NO(S).: PL180946
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Martin Bovey
Subject: By-law No. D14-12-18
Municipality: Township of West Perth
OLT Case No.: PL180946
OLT File No.: PL180946
OLT Case Name: Bovey v. West Perth (Municipality)
Heard: November 3, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel
Martin Bovey
M. Cook
Municipality of West Perth
E. Davis
("Municipality")
AVCO Holdings Inc. and Steve Ross Anderson ("AVCO")
P. Lombardi
MEMORANDUM OF ORAL DECISION DELIVERED BY S. JACOBS ON NOVEMBER 3, 2021 AND ORDER OF THE TRIBUNAL
1This matter was scheduled for a new hearing before the Tribunal on October 18, 2021. Prior to the scheduled rehearing, the parties advised the Tribunal that they reached a settlement and the Tribunal cancelled the October hearing and scheduled this settlement hearing.
2The appeal concerns a zoning by-law amendment (the "ZBA") that the Municipality passed to facilitate AVCO's intended development of two 2-storey apartment buildings with a total of 38 units, at 191 and 197 St. David Street in Mitchell (the "subject property"). Mr. Bovey appealed the ZBA to the Tribunal's predecessor, the Local Planning Appeal Tribunal in 2018. His appeal was filed in accordance with the Planning Act as it was amended by Bill 139, Building Better Communities and Conserving Watersheds Act, 2017 ("Bill 139"). Bill 139 limited an appellant's grounds of appeal to issues of consistency with the Provincial Policy Statement and conformity with applicable Provincial plans and municipal official plans. Mr. Bovey later filed a new Notice of Appeal, as he was permitted to do in accordance with amendments to the Planning Act through Bill 108, More Homes, More Choice Act, 2019. This allowed him to broaden his grounds of appeal.
3Having now settled the appeal, the parties appeared before the Tribunal in support of a revised proposal for one 3-storey apartment building with 41 units. All are proposed to be two-bedroom rental units that can be designed for seniors. The building is oriented parallel to St. David Street with a 63-space surface parking area between the building and the street. There will be communal outdoor amenity areas in addition to recessed balconies for the units. This revised proposal requires only one change to the ZBA as originally passed, and that is to permit parking to be located in the front yard of the subject property.
4Prior to the settlement hearing, the parties submitted to the Tribunal Minutes of Settlement, a Draft Order including the revised ZBA, and the Affidavit of Dave Hannam, qualified by the Tribunal to provide opinion evidence in the area of land use planning. Mr. Hannam's evidence is wholly uncontested.
5In order to approve a ZBA, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement, 2020 (the "PPS"), conforms with the applicable official plans, and represents good land use planning. The Tribunal must also have regard to the decision of the Municipality, in accordance with s. 2.1 of the Act. In this case, the Municipality entered into Minutes of Settlement that support the revised ZBA now before the Tribunal.
6In Mr. Hannam's opinion, the revised ZBA is consistent with the PPS because it facilitates development of an accessible and complete community by providing housing near existing commercial, recreational and other amenities. Specifically, the ZBA:
Consists of a compact development pattern that is cost-effective and efficient, contributing to a healthy, liveable and safe community, consistent with policies 1.1.1 (a) and (e);
Increases housing supply and contributes to an appropriate range and mix of housing types of density, including a more affordable form of housing that may be suitable for seniors, consistent with policy 1.4.3;
Achieves compatibility with surrounding land uses and contributes to a mixed-use community, consistent with policy 1.1.1(b); and
Represents appropriate growth and intensification within a settlement area, the Mitchell Ward, consistent with policy 1.1.3.1.
7The Tribunal accepts Mr. Hannam's uncontested evidence and agrees that the ZBA is consistent with the PPS.
8Both the Perth County Official Plan (the "County OP") and the Mitchell Official Plan (the "Mitchell OP") contain policy directions similar to the PPS regarding efficient and cost-effective growth within a settlement area. The ZBA clearly conforms with those policies, including County OP policies that require residential development to occur in the Serviced Urban Area on full municipal services (ss. 6.4.3, 6.4.4.2, and 16.2.2.2(c) and (n)).
9The ZBA also conforms with Mitchell OP residential intensification policies by providing apartment units, including units for seniors, in a building form that is compatible with the surrounding area (s. 5.1.4). In achieving a gross density of approximately 44 units per hectare, the ZBA conforms with s. 5.1.5.2 of the Mitchell OP, which provides a targeted range between 40 and 75 units per hectare.
10Section 5.1.5.4 of the Mitchell OP provides specific design, siting, and compatibility considerations for low-rise apartment buildings. Mr. Hannam describes in detail how each criterion is achieved in his Affidavit, with the key points summarized as follows:
The proposed development is located close to West Perth Community Centre and playing fields in conformity with s. 5.1.5.4(a);
The site has good access to the surrounding street network in conformity with s. 5.1.5.4(b);
The proposed development provides sufficient opportunities for appropriate buffering and screening, which will be further explored during the site plan application process; and
The irregular shape of the property means that, in order to orient the building parallel to St. David Street and maintain required setbacks, a front parking area is the only practical option for the site. Appropriate landscape planting and buffering can be provided to soften the edges of the parking area, which will be further explored through the site plan application process.
11The Tribunal finds, based on Mr. Hannam's uncontested evidence and its review of the applicable policies, that the ZBA conforms with both the County and Mitchell OPs. The Tribunal also agrees that this ZBA, which facilitates residential intensification in a settlement area, represents good land use planning and is in the public interest.
ORDER
12THE TRIBUNAL ORDERS that the appeal is allowed in part and By-law No. 100-1998, as amended, is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal orders that the appeal is dismissed.
"S. Jacobs"
S. JACOBS
VICE-CHAIR
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.
PL180946 – Attachment 1
The Corporation of the Municipality of West Perth
BY-LAW NO. Z84 - 2021
Being a By-law to amend By-law No. 100-1998 for property described as Part of Lots 5 and 7, Registered Plan 386, in the Municipality of West Perth, County of Perth
WHEREAS this By-law conforms to the Mitchell Official Plan;
NOW THEREFORE THAT THE FOLLOWING BE ENACTED:
A. THAT ZONING BY-LAW NO. 100-1998 BE AMENDED AS FOLLOWS:
That the area shown in hatching on the attached map, Schedule "A", and described as Part of Lots 5 and 7, Registered Plan 386, in the Municipality of West Perth, formerly in the Town of Mitchell shall be removed from the "Mitchell Residential High Density Four (R4-11)" and placed in the "Mitchell Residential High Density Four (R4-13)" of By-law No. 100-1998, and subject to the provisions of Section 12.9.13 (R4-13) of By-law No. 100-1998 as set forth in this By-law. The zoning of this land shall now be shown as "R4-13" on Key Map 32 of Schedule "A" to By-law No. 100-1998, as amended.
That Section 12.9 of By-law No. 100-1998 is hereby amended by adding the following special provisions:
12.9.13 R4-13
a) Location: Part of Lots 5 and 7, Registered Plan 386, Mitchell Ward on Key Map 32 of Schedule "A" to By-law No. 100-1998;
b) Notwithstanding the provisions of Section 12.7.11 or Section 5.19.4 (d) of By-law No. 100-1998 to the contrary, parking areas for the apartment dwellings are permitted to be located in the front yard; and
c) All other provisions of By-law No. 100-1998, as amended, shall apply.
That the West Perth Location Map, identified as Schedule "A", attached hereto forms an integral part of this by-law.
That the Explanatory Note of this amendment, identified as Schedule "B", attached hereto, forms an integral part of this by-law.
All other provisions of By-law No. 100-1998, as amended, shall apply.
This By-law shall come into force on the day it was passed pursuant to section 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
In force and effect by the Ontario Land Tribunal Order ____________ dated _____________ and issued _______________.
The Corporation of the Municipality of West Perth
The Corporation of the Municipality of West Perth
SCHEDULE "B" TO BY-LAW NO. Z84-2021
Explanatory Note
By-law No. Z84-2021 of The Corporation of the Municipality of West Perth is an amendment to the Municipality of West Perth Zoning By-law No. 100-1998 and affects property in the Mitchell Ward described as Part of Lots 5 and 7, Registered Plan 386 (191 and 197 St. David St.), in the Municipality of West Perth, County of Perth. The subject application has been initiated by the property owner – AVCO Holdings Inc. & Steve Anderson.
By-law No. Z84-2021 changes the zoning of the area shown in hatching on the attached map from "Residential High Density Four (R4-11)" of By-law No. 100-1998 and places it within the "Residential High Density Four (R4-13)" of By-law No. 100-1998 with a site-specific provision to permit parking areas for the apartment dwellings to be located within the front yard.
The lands subject to this Zoning By-law Amendment include two separate vacant properties. The owner desires to consolidate the two properties and construct a 41-unit three-storey apartment building and associated parking and amenity areas.
Schedule "A" to the attached By-law No. Z84-2021 is a map showing the location and zoning of the subject property.