Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 21, 2021
CASE NO(S).: OLT-21-001115
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Michael Krause
Subject: Consent
Property Address/Description: 50 Brookside Crescent
Municipality: City of Kitchener
Municipal File No.: B 2020-047
OLT Lead Case No.: OLT-21-001115
OLT Case No.: OLT-21-001115
OLT Case Name: Krause v. Kitchener (City)
Heard: December 15, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Michael Krause (“Applicant”)
Alex Ciccone
City of Kitchener (“City”)
Katherine Hughes
DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant made an application for a consent to sever a portion of the property located at 50 Brookside Crescent in Kitchener (“Subject Property”). The Applicant intended to construct a new semi-detached dwelling on the severed lot. Planning staff recommended approval of the consent (“Application”) and the Committee of Adjustment (“COA”) for the City refused the Application. The Applicant appealed the decision of the COA to the Tribunal (“Appeal”).
2The City resolved to take no position on the Appeal but did attend the hearing. The City requested that the specific conditions identified in the Staff Report (DSD-2021-23) dated March 5, 2021 (“Conditions”) be imposed if the Tribunal determined that the Appeal is allowed.
SUBJECT PROPERTY, BACKGROUND AND PROPOSED CONSENT
Subject Property
3The Subject Property is approximately 0.2 hectares in area and currently contains a single detached dwelling with two detached accessory structures. One of the accessory structures is a coach house in the rear of the Subject Property which is used for residential rental purposes. The second accessory structure is a detached garage located to the west of the dwelling.
4The Subject Property is designated within the Urban Boundary and located within the Built-Up Area in the Region of Waterloo Official Plan (“Region OP”). The City’s Official Plan (“OP”) designates the Subject Property as Low Rise Residential and it is zoned Residential Four Zone (R-4) in Zoning By-law No. 85-1 (“ZBL”).
5The primary dwelling on the Subject Property is designated under Part IV of the Ontario Heritage Act (“Historical Dwelling”). The designation was made a condition of a previous consent application which was approved in 2018 to sever the eastern portion of the Subject Property (“2018 Consent”). The eastern portion which was severed pursuant to the 2018 Consent now contains a recently constructed duplex.
Background
6The Applicant submitted the Application on October 31, 2020 and it was brought before COA for consideration on five separate occasions between December 8, 2020 and May 28, 2021. COA deferred the Application four times for a number of reasons, including a review of the cultural heritage value of the detached garage, review of the Heritage Opinion Letter by the Heritage Committee, providing time for the Applicant to prepare revised elevation plans and clarification on the use of the coach house.
7The Application was before the COA for the fifth time on May 18, 2021 and was refused. It was the opinion of the COA “that the lot to be created through this application is not compatible and does not conform with the pre-existing neighbourhood”.
Proposed Consent
8The Application proposed to demolish the existing detached stone garage and sever off the eastern portion of the Subject Property to have a lot width of 16.2 metres (“m”), depth of 33.5 m and a lot area of 542.7 square metres (“sq m”) (“Severed Parcel”). A new semi-detached dwelling is proposed to be built on the Severed Parcel (“Proposed Consent”).
9The Application proposed that the retained lot would have a lot width of 30.4 metres, depth of 43 m and a lot area of 1490 sq m (“Retained Parcel”).
HEARING
10Mr. Hugh Handy, a planner retained by the Applicant, was qualified by the Tribunal to provide expert land use planning evidence and the Tribunal received the benefit of his oral testimony and his affidavit found at Tab 1 of Exhibit 1. Owen Scott, a Heritage Planning Expert retained by the Applicant, was qualified by the Tribunal to provide expert heritage planning evidence and the Tribunal received the benefit of his oral testimony and his Affidavit found at Tab 2 of Exhibit 1. Garett Stevenson, Manager of Development Review for the City appeared under summons by the Applicant and was also qualified by the Tribunal to provide Expert Land Use planning evidence and the Tribunal received the benefit of his oral testimony. Mr. Handy, Mr. Scott and Mr. Stevenson each provided an executed Acknowledgement of Experts Duty.
11There were no requests for Party or Participant Status at the hearing.
12The Tribunal received and marked the following documents as Exhibits to the hearing:
Exhibit 1 – Document Book of the Applicant
Exhibit 2 – Visual Evidence of the Applicant
Exhibit 3 – Garett Stevenson Acknowledgement of Experts Duty
13The Tribunal also had the Municipal Record available to it as forwarded by the City, containing all of the information and documentation before the COA and Council when the Application was received, considered and decided.
ISSUE
14In the determination of this Appeal pursuant to s. 53(19) of the Planning Act (“Act”) and deciding whether the Proposed Consent should be granted, with such conditions that may be required, the Tribunal must consider and decide the following:
a. The Tribunal must be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and can proceed by way of application for consent pursuant to s. 53(1) of the Act;
b. The Tribunal must then, pursuant to s. 53(12), have regard for the criteria set out in s. 51(24) of the Act which includes: that the Proposed Consent has regard to the effect that the consent will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed consent conforms to the Region OP and the OP; the suitability of the land for the purposes for which it is to be subdivided; if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing; and the adequacy of utilities and municipal services;
c. As per s. 3(5) of the Act, the Tribunal must, in its decision, be satisfied that the approval of the Proposed Consent is consistent with the Provincial Policy Statement 2020, (“PPS”) and conform to any applicable Provincial plans, which in this case is the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended (“Growth Plan”);
d. The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the material and information that was before the approval authority in making the decision;
e. The Tribunal may, pursuant to s. 53(12), also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the Proposed Consent and such conditions may include such requirements as are set out in s. 51(25) of the Act; and
f. The Tribunal will decide whether the giving of provisional consent to the Applicant, with any required conditions, represents good planning in the public interest.
ANALYSIS AND FINDINGS
15The Tribunal had the benefit of the uncontroverted and uncontested evidence of Mr. Handy, Mr. Scott and Mr. Stevenson.
16For the reasons that follow, and upon various findings set out herein, the Tribunal determines that the Appeal under s. 53(19) should be allowed and provisional consent should be given for the Proposed Consent.
Plan of Subdivision
17The Subject Property is not subject to site plan approval, however the Conditions recommended by City staff included that the Applicant enter into a modified subdivision agreement.
18The modified subdivision agreement will address issues relating to tree preservation and protection.
19In addition, prior to obtaining a building permit, the Applicant must demonstrate that the mitigation measures set out in the heritage reports have been adhered to.
s.51(24) Criteria
20Both Mr. Handy and Mr. Stevenson conclude that the proposed severance and creation of the additional lot have appropriate regard to the listed criteria set out in s. 51(24) of the Act.
21Mr. Handy opined that the Proposed Consent has regard to matters of Provincial interest as it is an efficient use of infrastructure to create healthy communities, contributes to the provision of a full range of housing, is an appropriate location for growth and development, promotes public transit and encourages a sense of place.
22The Proposed Consent conforms with the Region OP and the OP as discussed below. The semi-detached dwelling proposed to be constructed on the Severed Parcel will contribute to the mix of affordable housing options in the area.
23The proposed semi-detached dwelling would make use of available existing land. Mr. Handy noted that the Severed Parcel already has servicing in place as future potential lots were contemplated when the subdivision was established.
24Mr. Scott opined that providing the Conditions were imposed, there was no issue from a heritage perspective with the Proposed Consent. The detached garage which would be demolished as part of the Proposed Consent does not have any heritage value. Further, the removal of the detached garage would not have a negative impact on the heritage value of the Heritage Dwelling.
The Provincial Policy Statement and Growth Plan
25Based upon the whole of the evidence, the Proposed Consent is consistent with the PPS and Growth Plan.
26The Proposed Consent is consistent with the PPS as it will efficiently utilize available land and existing infrastructure to provide for a mix of housing types in the neighbourhood. Mr. Handy opined that the Proposed Consent will provide an appropriate range and mix of housing and the Province encourages this at densities that are appropriate.
27Mr. Stevenson opined that the PPS speaks to accommodating a significant supply and range of housing options through intensification and the Proposed Consent would allow for a subtle increase in density with the use of the vacant side yard on the Subject Property.
28The Proposed Consent is also consistent with the Growth Plan. Mr. Handy testified that Municipalities are directed through the Growth Plan to encourage intensification in the Built-Up Area to ensure the achievement of complete communities. The Proposed Consent achieves this.
29The Proposed Consent will provide more attainable housing, contribute towards the City’s intensification target and make efficient use of existing infrastructure and support existing transit.
30Mr. Handy opined that the Proposed Consent conforms to the Growth Plan as it will contribute to the mix of housing types in the area and will contribute towards a complete community.
31Mr. Stevenson testified that Growth Plan policies are implemented through the OP and ZBL through the low rise designation permitting a variety of low rise residential uses, including semi-detached dwellings which are permitted in the R-4 zone.
Conformity with the Region OP and the OP
32The Tribunal accepts the evidence of Mr. Handy, Mr. Scott and Mr. Stevenson that the proposed severance conforms to all other policies of the Region OP and the OP.
33The Region OP is the building document for directing growth and change for the next 20 years. The Proposed Consent conforms to the Region OP as municipal infrastructure is available to service the proposed dwelling which is compatible with the existing neighbourhood in terms of height, density and massing. The Subject Property is also located close to public facilities such as schools and transit.
34Mr. Handy opined that the Proposed Consent conforms to the Region OP as it is within the Urban Area and Built-Up Area where infrastructure is available to service the proposed dwelling. The proposal is introducing residential within a residential area and the mix is within the height, density and massing that one would expect.
35The OP permits a full range of low-density housing types which includes semi-detached dwellings. The Proposed Consent will facilitate the construction of a semi-detached dwelling which will add to the mix of housing options in the area. Mr. Handy spoke to the visual evidence marked as Exhibit 2 which demonstrates the streetscape in the neighbourhood. The property to the East of the Subject Property contains a side split dwelling with a two-storey portion and the property to the West of the Subject Property contains a two-storey duplex. The proposed dwelling has been scaled not to exceed two-storeys and will be compatible with the existing built form and will not negatively impact the existing built form along the street.
36The Severed Parcel is compatible with lot frontages and areas in the neighbourhood and will have frontage onto a public street. Mr. Handy testified that the proposed dwelling will have setbacks to create a street edge similar with the dwellings on either side of the Severed Parcel. The Proposed Consent does not detract from the prominence of the Historical Dwelling on the Retained Parcel.
37While not the subject of this appeal, the existing accessory coach house on the Retained Parcel conforms with the OP as it is subordinate to the Historical Dwelling, has no visual impact to the streetscape as it is in the rear of the Subject Property, is compatible in terms of massing, height and visual appearance and can be serviced with existing services.
38Mr. Scott clarified that the heritage designation does not include the accessory structures located on the Subject Property, namely the coach house on the Retained Parcel nor the detached garaged on the Severed Parcel. The extent of the heritage value to the Subject Property is the Historical Dwelling.
39Mr. Handy opined that the Proposed Consent contemplates development within a Built-Up Area with available roads and sewers and is permitted within the low rise residential area. It is in keeping with the objectives of the OP for housing type, style, tenure and affordability.
40Mr. Stevenson testified that the Proposed Consent conforms to the OP. The OP speaks to Community Areas and the purpose of this is to provide residential uses intended to serve the immediate residential areas. Limited intensification is permitted in Community Areas in accordance with land use planning policies.
CONCLUSION
41For the reasons indicated in the analysis above, and upon the various findings made in this Decision, the Tribunal will allow the Consent Application and give provisional consent subject to the Conditions set out in the Order below.
ORDER
42THE TRIBUNAL ORDERS that the appeal is allowed and the provisional consent is to be given subject to the Conditions set out in Attachment 1 to this Order.
“C. Hardy”
C. HARDY
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.
Conditions
That the owner shall provide a digital file of the deposited reference plan(s) prepared by an Ontario Land Surveyor in PDF and either .dwg (AutoCad) or .dgn (Microstation) format, as well as two full sized paper copies of the plan(s). The digital file needs to be submitted according to the City of Kitchener's Digital Submission Standards to the satisfaction of the City’s Mapping Technologist.
That the Owner shall obtain a tax certificate from the City of Kitchener to verify that there are no outstanding taxes on the subject property to the satisfaction of the City’s Revenue Division.
That the Owner pays to the City of Kitchener a cash-in-lieu contribution for park dedication on the severed parcel in the amount of $7452.00. Park Dedication is calculated at 5% of the new development lot only, with a land valuation calculated by the lineal frontage (16.2m) at a land value of $9,200 per frontage meter.
The Owner shall enter into a modified subdivision agreement with the City of Kitchener to be prepared by the City Solicitor to the satisfaction of the City’s Director of Planning, and registered on title of the Retained and Severed lands. Said agreement shall include the following special conditions:
I. The Owner shall prepare a Tree Preservation/Enhancement Plan for the severed lands in accordance with the City’s Tree Management Policy, to be approved by the City’s Director of Planning and where necessary, implemented prior to any grading, tree removal or the issuance of building permits. Such plans shall include, among other matters, the identification of a proposed building envelope/work zone, landscaped area, and vegetation to be preserved.
II. Prior to Grading, Tree Removal, or Issuance of any Building Permits, whichever shall occur first:
a) The Owner shall implement all approved measures for the protection of trees as approved in the Tree Preservation/Enhancement Plan (where applicable) and to provide written certification from the Owner’s Environmental Consultant to the City’s Director of Planning that all protection measures have been implemented and inspected, in accordance with the City’s Tree Management Policy. No changes to the said plans shall be granted, except with prior approval from the City’s Director of Planning.
III. Prior to the Application for and Issuance of any Building Permits:
a) The designating by-law shall be amended to reflect the new delineated property boundary.
b) The Owner shall implement the mitigation measures, including front yard setback, building height, dwelling and garage design, materials, and colours, related to the proposed new dwelling on the Severed lands in accordance with the approved Heritage Impact Assessment, prepared by CHC Limited, dated March 14, 2018, the Heritage Opinion letter, prepared by CHC Limited, dated October 26, 2020, and the updated Heritage Impact Assessment, prepared by CHC Limited, dated January 21, 2021 to the satisfaction of the City’s Director of Planning.
c) The Owner shall submit building elevation, building location, and lot grading drawings for the Severed lands in accordance with the approved Heritage Impact Assessment, prepared by CHC Limited, dated March 14, 2018, the Heritage Opinion letter, prepared by CHC Limited, dated October 26, 2020, and the updated Heritage Impact Assessment, dated January 21, 2021 for approval by the City’s Director of Planning.
d) The Owner shall design and construct the dwellings in accordance with the approved plans, to the satisfaction of the City’s Director of Planning.
That the Owner makes financial arrangements to the satisfaction of the City's Engineering Services Division for the installation of all new service connections and the removal of redundant services to the retained lands.
That the Owner make arrangements, financial or otherwise, for the relocation of any existing City-owned street furniture, signs, hydrants, utility poles, wires or lines, as required, to the satisfaction of the appropriate City department.
That the Owner provides a servicing plan, showing outlets to the municipal servicing system to the satisfaction of the Director of Engineering Services for the retained lands.
That the Owner submits a complete Development and Reconstruction As-Recorded Tracking Form (as per the Public Sector Accounting Board (PSAB) S. 3150) together with a digital submission of all AutoCAD drawings required for the site (Grading, Servicing etc.) with the corresponding correct layer names and numbering system to the satisfaction of the Director of Engineering Services for the retained lands.
That the Owner provides Engineering staff with confirmation that the basement elevation of the house can be drained by gravity to the street sewers, to the satisfaction of the Director of Engineering Services. Where this cannot be achieved, the owner is required to pump the sewage via a pump and forcemain to the property line and have a gravity sewer from the property line to the street, at the cost of the Owner
That the owner/applicant submits the Regional consent review fee of $350.00 per new lot created.