Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 08, 2021 CASE NO(S).: OLT-21-001066

PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Blimes Realty Limited Applicant: 23230440 Ontario Ltd. Subject: Minor Variance from zoning by-law requirements Description: Application to expand the existing three-storey commercial building. Municipal Reference Number: A03-21 Property Address: 81 Walton Street Municipality: Municipality of Port Hope OLT Lead Case No.: OLT-21-001066 OLT Case No.: OLT-21-001066 OLT Case Name: Blimes Realty Limited v. Port Hope (Municipality)

Heard: November 17, 2021 by video hearing

APPEARANCES:

Parties Counsel/Representative*

Blimes Realty Limited Glenn Tozer

23230440 Ontario Ltd. Sean Campbell*

Municipality of Port Hope Jennifer Savini*

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON NOVEMBER 17, 2021 AND ORDER OF THE TRIBUNAL

123230440 Ontario Ltd. (“Applicant”), of 81 Walton Street (“subject property/site”) in the Municipality of Port Hope (“Municipality”) applied for relief from the provisions of Zoning By-law No.20/2010, in the alteration of a designated heritage building which had received heritage approval for the proposed alteration on November 19, 2018.

2The minor variances sought are in respect of height and setback relief from Part 7, s.7.4, Table 7.2 Zoning Standards in the Downtown Commercial Zone – COM3:

(a) To increase the maximum height from 14 metres (“m”) to 15.4m;

(b) To permit a reduction in the minimum interior side yard special provision No. 2 from 4.5 m to 2.94 m for a second floor dwelling unit and the balcony above;

(c) To permit a reduction in the balcony setback from 0.6 m to 0 m.

3The Municipality’s Planning Staff recommended the application be approved. The Committee of Adjustment (“COA”) approved the variance application on May 20, 2021(“approval”) subject to condition. The Appellant, Blimes Realty Limited, at the abutting building, 69-75 Walton Street, appealed the COA’s approval.

SITE CONTEXT

4The subject property is approximately 1,356 m² (“sq m”) in area and is located on the south side of Walton Street and on the east side of John Street. Frontage along Walton Street is 14.5 m, while along John Street, the frontage is 60.4 m. It is an existing three storey brick and stucco building (built in 1871) formerly housing the ‘Walton Hotel’ (and originally the ‘Queen’s Hotel’). The existing structure has an approximate gross floor area of 2,189 sq m. The building, situated midway along Walton Street slope, was designated under Part IV of the Ontario Heritage Act on November 3, 1980 (By-law No. 41/80) and is located within the Walton Street Heritage Conservation District (“HCD”). The subject property is situated in Port Hope’s historic downtown, surrounded by commercial and mixed-use streetscapes within the HCD.

APPELLANT’S POSITION

5Glenn Tozer, for the Appellant, confirmed that he was not calling any witness and will rely on the municipal materials filed. As it transpired, Mr. Tozer submitted that he was not actually objecting to the height variation or the setbacks sought. What he was concerned about was the exit that would be closed off with the proposed development. He stated that he and his wife, Catharine Tozer are owners of 69-75 Walton Street which abut the subject property. The exit has been available for his property since a long time ago (he owned the building for about 30 years. He believed that the exit was available for use for 50-60 years, long before he bought his property). He is aware that there is no registered easement over the subject property but that the exit issue was really all that he was interested in with respect to this matter. He was painfully resigned to the fact that without the exit, he would not be able to utilize about 960 square feet of the affected area, which would be landlocked. The Tribunal confirmed that matters relating to easements, rights of ingress and egress to properties, are not within the jurisdiction of the Tribunal and are not matters for consideration in the instant hearing.

HEARING

6Jennifer Savini, Counsel for the Municipality called Theodhora Merepeza, a land use planner with the Municipality as witness and she was qualified to give expert opinion evidence on land use planning. Counsel for the Applicant numbered company, Sean Campbell relied on Ms. Merepeza’s testimony in support of the application, and the fact that Mr. Tozer was not contesting the minor variances.

THE MUNICIPALITY’S/APPLICANT’S POSITION

7Ms. Merepeza generally testified as to the planning report that was prepared by her staff and which she supervised. The staff member (Sonia Tam) was no longer with the Municipality. Ms. Merepeza took the Tribunal through the report, the policy framework and the conclusion reached which was that the proposal was good planning and all the tests in s. 45(1) of the Planning Act have been met.

Property History

8The former Walton Hotel received multiple building permits from 2005 up until 2009 in order to complete various aspects of renovation of the existing building. In 2012 the owner proposed to construct a three-storey addition on the south side of the existing building and a partial fourth floor addition creating another 984 sq m of floor area, for a total gross floor area of 3,173 sq m. The proposal included a 579 sq m of retail space on the ground floor and ten (10) residential condominium apartments (8 units on the upper floors and 2 units above the proposed garages along the south and east property boundaries). The Applicant applied for and received Council approval for Site Plan Application SP09-2012, however the Site Plan Agreement was not executed and has since lapsed.

Proposal:

9The Applicant is proposing a 1,950 sq m expansion to the existing 2,189 sq m (GFA) three-storey commercial building. This expansion includes an additional recessed fourth floor and a four-storey addition to the south incorporating a number of inset units with above-unit balconies into the design. The proposed development will include 18 upper-floor apartment units, 5 ground floor commercial units, and 18 parking spaces within a covered parking garage (part of the proposed rear addition). The resulting building will have a total GFA of 4,139 sq m.

10The Applicant is seeking a variance for the purpose of increasing the existing building height from approximately 12.3 m to a proposed height of 15.4 m. For the purpose of constructing the fourth storey, the applicant is requesting relief from the following provision of Zoning By-law No. 20/2010, as amended:

a. Part 7 - Section 7.4 – Table 7.2 – Zone Standards in the Downtown Commercial Zone (COM3)

i. Seeking relief in the maximum height from 14.0 m to 15.4 m.

and the interior side yard and balcony setbacks stated.

11As a designated heritage property, the Applicant received heritage approval for this proposed alteration on November 19, 2018. Site Plan Application (SP07-2021) has been concurrently submitted for the redevelopment of this property and is currently under review.

12The property is an existing lot of record. The building was initially constructed in 1870 as a two-storey building before a third floor was constructed in 1876. The proposed variance to facilitate the addition of a fourth storey would allow for the revitalization of this historic building while paying homage to its historic use as both commercial and residential accommodations.

13Ms. Merepeza stated that it is her and staff’s opinion that the proposed variance is consistent with s. 1.1.3 of the Provincial Policy Statement (2020) and s. 2.2.1 of the Growth Plan for the Greater Golden Horseshoe (2020).

14From a land use perspective, the proposed redevelopment is consistent with policies encouraging the mix of commercial and residential uses in the Central Commercial area. This allows for the more efficient use of urban lands and encourages pedestrian-friendly environments.

15The proposed development would also encourage the continued revitalization of the historic main street. Overall, Ms. Merepeza’s opinion is that the proposed expansion meets the general intent and purpose of s. C1.2.2 of the Northumberland County Official Plan (2016) where the site is located in an Urban Area designation and s. C11 and D3.1 of the Municipality of Port Hope Official Plan (2014) where the subject property is designated Central Commercial within Walton St. HCD.

16The subject property is zoned Downtown – Commercial COM3 where the maximum height is 14 m. The Minimum required interior side yard for that portion of a mixed use building that contains dwelling units which have openings to habitable rooms facing the interior side lot line is 4.5 m and Minimum building height is 7.5 m. The COM3 Zoning permits commercial uses and accessory dwelling units in the upper storeys.

17Minor Variance Application A03/21 would facilitate the construction of a recessed fourth floor and a four-storey addition to the south of the existing building. The diversity in architectural styles, massing, and building heights contributes to the character and charm of Port Hope’s downtown. Lauded as “the finest example of a formal main street in Southern Ontario,” Walton Street has retained much of its 19^th century structures and facades. Except for a few modern developments, most buildings were constructed between the 1840s and 1870s.

18The Downtown Port Hope Urban Design Guidelines provide guidance when reviewing a proposal’s overall impact on adjacent properties. More specifically, the Guidelines encourage “stepped building form to achieve a transition to a lower height on an adjacent parcel.” The proposed redevelopment has taken this approach to minimize the impact of the proposed fourth floor and addition. In addition to the “stepped” fourth storey, the Applicant has indicated that the existing parapet, to be mimicked in the addition, provides additional coverage minimizing visual impact from the proposed development.

19A Shadow Study prepared by Alinea Designs has been submitted along with the Site Plan Application. The shadow study appears to show that the existing property mostly casts shadows to the north (Walton Street) and east (eastern properties and Lent’s Lane). It should also be noted that the taller buildings to the west already cast shadows onto the subject property. However, the adjacent building to the east, 69-75 Walton Street, only has a few rear facing windows that are already impacted by the shadows cast by the existing building. There are no windows along the north-facing façade of 17-19 John Street and the Shadow Study suggests shadows cast towards the south will be limited.

20This proposal allows for the revitalization and restoration of a prominent building in i Port Hope’s downtown area that has been vacant for approximately 15 years. The proposal has been reviewed by the Heritage Port Hope Advisory Committee (“HPH”). The proposal received heritage approval at the November 19, 2018 HPH meeting.

21Site Plan Application (SP07-2021) has been concurrently submitted for the redevelopment of this property and is currently under review. The existing building at 81 Walton Street already casts shadows primarily onto Walton Street and towards the properties to the east. Sidewalks are municipal property and therefore require Municipal Approval prior to any alteration. These matters will be reviewed as part of the Site Plan Application.

22Ms. Merepeza opined that the proposed variance meets the criteria stated in the Planning Act. As such, the proposal at 81 Walton Street:

a. is considered minor in nature;

b. is desirable for the appropriate development of the land;

c. maintains the intent and purpose of the Zoning By-Law No. 20/2010 as amended;

d. maintains the intent and purpose of the Official Plan.

ANALYSIS AND DECISION

23The Tribunal is persuaded by and accepts the uncontested and uncontradicted land use opinion evidence of Ms. Merepeza. When she completed her examination in chief, Mr. Tozer chose not to cross-examine her but instead expressed his views of the exit matter that was briefly described above.

24The issue for the Tribunal is whether the proposed development will be consistent with the PPS, has regard to provincial interests, and whether the variances requested meet the statutory tests set out in s. 45(1) of the Act.

25The Tribunal is satisfied that the proposed variances at the subject property have regard for the matters of provincial interest as set out in s. 2 of the Act in particular s. 2(d) the conservation of features of significant architectural, historical interest; 2(j) on the provision of a range of housing; s. 2(p) the appropriate location of growth and development; and s. 2(r) on the promotion of built form that encourages a sense of place.

26An Applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met with: i.e. that the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the land building or structure and are minor in nature.

PROVINCIAL POLICY STATEMENT 2020 (“PPS”)

27The proposed development is in an urban settlement area. The vitality and regeneration of settlement areas is critical to the long-term economic prosperity of communities. It is in the interest of all communities to use land and resources wisely, to promote efficient development patterns, protect resources, ensure effective use of infrastructure and public service facilities (s.1.1.3).

28This proposal is in a settlement area which is the focus of growth and development (s.1.1.3.1). The proposed alteration of the Heritage Resource is an efficient use of the land and resource which appropriately and efficiently uses the infrastructure and public service facilities which are available in the Municipality (s.1.1.3.2 (a) and (b)).

29The PPS encourages use of existing infrastructure and public service facilities within settlement areas to promote intensification and redevelopment (s. 1.6.3 and 1.6.6.2). The Tribunal is satisfied that the variance application is consistent with the PPS.

GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE (2020) (Growth Plan)

30The subject property is identified as within a Built-Up Area. The Growth Plan in Policy 2.2.1.2(c)i, directs growth to settlement areas and directs that growth will be focused in delineated built up areas. The proposal is within a delineated built up area, conforms to this policy and will generate additional residential units within this settlement area. The Tribunal is satisfied that the variance application conforms to the Growth Plan.

NORTHUMBERLAND COUNTY OFFICIAL PLAN (“COP”)

31The Tribunal agrees with Ms. Merepeza that s. C1.2.2 sets out the County’s policies based on the objective of promoting an appropriate mix and range of commercial, residential and other land uses to facilitate the more efficient use of urban land and the establishment of a pedestrian environment, in particular Policy C1.2.2 (b).

32The application would allow for the development that creates an opportunity for commercial and residential intensification in an appropriate location. This proposal will create five ground floor commercial units; eighteen upper floor apartment units and eighteen parking spaces in a covered area. It is laudable that the proposed development encourages the continued revitalization of the traditional and heritage significance of Walton Street and the downtown historic area. The proposal promotes a mix of uses (policy C1.2.2(d) and (e)).

33The Tribunal finds the COP encourages developments that utilize land efficiently and supports an increase in residential units in urban areas through intensification and utilization of municipal services. The proposal will result in the increase of an appropriate mix of commercial and residential uses in line with the policies. The Tribunal is satisfied that the general intent and purpose of the COP is maintained.

MUNICIPALITY OF PORT HOPE OFFICIAL PLAN (“MOP”)

34Section C11 of the MOP provides policies that assist in defining and maintaining the Municipality’s unique Cultural Heritage Conservation and Community Design direction to maintain its unique character. The Principle in s. C11.2.2, recognizes the need to identify, conserve, protect, restore, maintain and enhance cultural heritage resources. Thus, all new development permitted by land use policies and designations shall have regard for Cultural Heritage Resources and shall wherever possible incorporate these resources into any new development plans. In addition, all new development shall be planned to preserve and enhance the context in which the cultural resources are situated.

35The proposed development is of an existing property, with an existing building in the HCD, that has been left vacant for 15 years. This proposal to alter the Heritage Resource is in line with the policy of having regard to the resource and to incorporate the resource in the development plans.

36The subject property is within the Central Commercial area identified on Schedule C1 and in the HCD (D3.1.1). The Central Commercial area is designated as a separate commercial category to identify the business district of the Municipality as a unique historic centre to be maintained and enhanced in a manner consistent with the functional and architectural qualities exhibited. This historic Walton Hotel exhibits architectural styles of the 1870s and this proposal maintains and preserves the historic façade, balcony designs and historic significance of this Heritage Resource. It revitalizes the Walton Street area and is compatible with the surrounding heritage neighbourhood community. Existing infrastructure and municipal services are available. The Tribunal finds that the proposed development maintains the general intent and purpose of the MOP.

Zoning By-law (“ZBL”)

37The subject property is zoned Downtown – Commercial COM3 as per the ZBL. The Tribunal agrees that the intent of the 14.0 height provision, the 4.5 m special provision, and the 0.6 m balcony provision, are to minimise visual and overlook impacts. In terms of compatibility, dwelling units are permitted above the first storey in COM3 Zones subject to s. 4.2.2 of the ZBL. The proposal would have greatest overlook impact on the adjacent property to the east as well as limited impact on the property to the south. The Applicant had supplied a Shadow Study prepared by Alinea Designs which generally confirms that there is limited shadow impact while there is already existing shadow impact from existing buildings.

38The present characteristic of this building is a building that is more than 100 years old. The height increase required is a function of the alterations in the proposed development. It can be observed that the various setback requirements stem from the existing design of the balconies on this building. The ZBL implements the MOP policies. The objective in this instance is to restore and enhance the heritage resource of the subject property. This proposal’s objective is the restoration, maintenance and enhancement of the commercial and dwelling use of the site in the HCD. The Tribunal finds that the proposal maintains the general intent and purpose of the ZBL.

39The proposal is appropriate development of the subject property as it will result in a restored heritage resource property that was languishing and vacant for 15 years. The stepped design of the proposal will address the visual and overlook impacts that is expected as buildings in this area were built very close to each other. The Heritage Resource is expected to be on full municipal services. The old historical building will be refurbished and with the commercial and residential units being created, will encourage community congregation, retail and economic activity at the subject property. Further, this downtown area with the additional dwelling apartment units will be beneficial to the community. The Tribunal is satisfied that the proposed variances are desirable for the appropriate use and development of the subject property.

40The Tribunal concurs with Ms. Merepeza that the uses to the east of the subject property are offices, commercial spaces, and Lent’s Lane. The property directly to the south is used for residential purposes. While the ZBL does not speak specifically to balconies and patio spaces in the COM3 Zone, such amenity spaces are commonly found behind buildings all along Walton Street. Some overlook impacts from new development are to be expected particularly within the urban compact conditions in Port Hope’s downtown core. The Tribunal acknowledges that there will be some overlook and visual impacts created by the proposal. Nevertheless, these impacts will be minimal. The “stepped” building design helps minimize such impacts. The Shadow Study points to minimal shadow impact. No evidence is furnished of any adverse impact or negative impact on adjacent properties or on neighbours. The Tribunal finds that the variances are minor in nature.

41Ms. Merepeza notes that two balconies are proposed over Walton Street. The architectural features of these balconies encroach over municipal property, including the municipal right-of-way, where municipal consent is required. This will be addressed among other things, as part of the Site Plan Agreement. She requested a condition of a site plan agreement for the variance approval.

ORDER

42The Tribunal Orders that the appeal is dismissed and the variances to Zoning By-law No. 20/2010 are authorized subject to the following condition:

• A Site Plan Agreement be entered into with the Municipality of Port Hope.

“T.F. Ng”

T.F. NG 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.