Lipson v. Thunder Bay (City), 2021 CanLII 51751

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 09, 2021

CASE NO(S).: PL210021

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Donald & Diane Demichele

Appellant: Steven Lipson

Subject: Consent

Property Address/Description: 419 Frankwood Avenue

Municipality: City of Thunder Bay

Municipal File No.: B-36-2020

LPAT Case No.: PL210021

LPAT File No.: PL210021

LPAT Case Name: Lipson v. Thunder Bay (City)

Heard: May 17, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Steven Lipson

Self-represented

City of Thunder Bay

M. Grimaldi*

Diane and Donald DeMichele

R. Larson*

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MAY 17, 2021 AND ORDER OF THE TRIBUNAL

1Steven Lipson (“Appellant”) appealed the approval by the City of Thunder Bay (“City”) Committee of Adjustment of a Consent application regarding the proposed severance of the property located at 419 Frankwood Avenue (“subject property”).

2The subject property is owned by Diane and Donald DeMichele (“Applicants”). They applied to the City’s Committee of Adjustment seeking a Consent to sever their land resulting in:

a. one new parcel of land having a lot frontage of 8.75 metres (“m”), a lot depth of 30.90 m, and a lot area of 270 square metres (“m²”); and

b. the retained parcel, containing an existing dwelling, with a lot frontage of 11.36 m, a lot depth of 30.90 m, and a lot area of 351 m².

3On November 25, 2020, the City’s Committee of Adjustment approved the proposed Consent as well as minor variances regarding the subject property. The Consent approval was subject to the following conditions:

A. The Secretary-Treasurer of the City’s Committee of Adjustment shall have been satisfied that the following conditions have been complied with, within one year of the giving of notice of this Decision, that being December 3, 2021, that:

1. minor variance application A-35-2020 is approved by the City’s Committee of Adjustment;

2. the Applicants submit to the Secretary-Treasurer, a proper legal description of the lands to be severed including confirmation of the lot frontage, lot depth and lot area of the surveyed parcel, prepared by an Ontario Land Surveyor. The Plan shall contain a minimum of two observed reference points noted on the printed Plan. The Reference Plan drawing shall be modified to represent real world co-ordinates based on North American Datum (NAD) 1983 Canadian Spatial Reference System (CSRS) Version 6 (2010.0). The drawing shall be supplied in digital format (AutoCAD.dwg or ArcGIS shapefile) and hard copy format;

3. the Applicants enter into a personal undertaking with the City that establishes the minimum interior side yards to be 1.32 m for the severed lot as shown on the site plan associated with application A-35-2020, to the satisfaction of the City’s Planning Services Division;

4. confirmation is received from the Planning Services Division that the southern interior side yard of the retained parcel conforms to the regulations in the Zoning By-law;

5. payment of the required Parkland fee is made, pursuant to s. 51.1(1) and s. 51.1(3) of the Planning Act for the lot to be severed;

6. the Applicants be required to construct one new parking stall for the retained lot, including acquiring an Entrance Permit to the satisfaction of the City’s Engineering and Operations Division;

7. the Applicants shall submit a lot grading and drainage plan for the severed and retained lands and shall construct drainage facilities and dedicate easements as required to the satisfaction of the Engineering and Operations Division;

8. the Applicants shall submit an application to the City’s Environment Division, including a deposit, for the installation of new water and sanitary service connections for the severed property;

9. the Applicants, in conjunction with an application for an Entrance Permit for the severed lot, pay for the full cost for the removal, stumping and boulevard restoration of the existing boulevard tree;

10. the Applicants provide the compensation for the removal of the existing boulevard tree as per the City’s Public Tree By-law at the rate of 2:1. This is to be paid for through the street tree fee of $500 each;

11. the Applicants provide one new street tree on the frontage of the newly created lot. This is to be paid for through the street tree fee of $500; and

12. the Applicants dedicate, at no charge to Synergy North, a 3 m easement along the edge of the severed and retained lots fronting Frankwood Avenue.

4The Appellant appealed the Committee of Adjustment’s approval of the Consent application. The associated minor variance approval (for Application No. A-35-2020) was not validly appealed.

5On May 11, 2021, the Tribunal was informed by the Parties that they had reached a proposed settlement of the appeal. The terms of the proposed settlement differ from the conditions approved by the Committee of Adjustment in that:

a. the wording of the preamble is revised so that the deadline for compliance with the conditions to the Consent is changed to within one year of the giving of notice of the Tribunal’s oral decision, that being May 16, 2022; and

b. Condition A.3 of the Committee of Adjustment’s decision is revised to require the Applicants to enter into a personal undertaking with the City that establishes the minimum southerly interior side yard to be 1.5 m for the severed lot (instead of the 1.32 m required by the Committee of Adjustment) to the satisfaction of the City’s Planning Services Division.

6A sketch of the proposed severance is attached to this Order and Decision as Schedule 1.

7On May 17, 2021, the Tribunal held a settlement hearing to address the proposed settlement.

ISSUES

8On a Consent appeal, the Tribunal’s decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”). It must conform or not conflict with applicable provincial plans and it must conform with applicable official plans. In the present case, the applicable provincial plan is the Growth Plan for Northern Ontario (“Growth Plan”) and the applicable official plan is the City’s Official Plan. The Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and for the criteria set out in s. 51(24) of the Planning Act. Also, the conditions associated with the proposed Consent must be reasonable as required under s. 51(25) of the Planning Act.

EVIDENCE AND SUBMISSIONS

9At the settlement hearing, the Tribunal heard evidence from Jamie Kirychuk, who is a land use planner with the City. The Tribunal qualified Mr. Kirychuk to provide opinion evidence in the area of land use planning.

10Mr. Kirychuk opined that the proposed Consent is consistent with the PPS, does not conflict with the Growth Plan, and conforms with the City’s Official Plan. He stated that the proposed Consent facilitates appropriate intensification in the area of the subject property. He stated that the subject property is in an area designated as “Residential” under the City’s Official Plan. He said it is in a walkable community and is close to amenities and public transit. He stated that the proposed side yard setback conforms with the performance standards for the subject property as set out under the variances approved for it.

11Mr. Kirychuk stated that the proposed Consent has regard to the criteria set out in s. 51(24) of the Planning Act. He reviewed each of the relevant criteria and opined that the proposed Consent is in the public interest and is not premature, conforms with the City’s Official Plan and does not conflict with adjacent developments, and is suitable for the purpose of residential uses. He also opined that the dimensions of the proposed lots are appropriate and there are no school capacity issues in the area.

12Mr. Kirychuk reviewed the conditions associated with the proposed Consent and opined that they are reasonable.

13Mr. Kirychuk stated that the proposed Consent has regard to the matters of provincial interest set out in s. 2 of the Planning Act. He stated that there are no environmental concerns and no transportation issues related to the proposed Consent and that it reflects the orderly development of a safe and healthy community.

FINDINGS

14Based on Mr. Kirychuk’s uncontested opinion evidence, the Tribunal finds that the proposed Consent is consistent with the PPS, does not conflict with the Growth Plan, and conforms with the City’s Official Plan. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Planning Act and the criteria in s. 51(24) of the Planning Act and the Tribunal finds that the conditions to the proposed Consent are reasonable.

ORDER

15The Tribunal orders that the appeal is dismissed in part and provisional Consent is to be given in general conformity with the sketch attached as Schedule 1 to this Order and Decision, subject to the following conditions:

A. The Secretary-Treasurer of the Committee of Adjustment for the City of Thunder Bay shall have been satisfied that the following conditions have been complied with within one year of the giving of notice of this Decision, that being May 16, 2022:

1. that Application No. A-35-2020, as approved by the City’s Committee of Adjustment on November 25, 2020, applies to this Decision;

2. that the Applicants submit to the Secretary-Treasurer of the City’s Committee of Adjustment, a proper legal description of the lands to be severed including confirmation of the lot frontage, lot depth and lot area of the surveyed parcel, prepared by an Ontario Land Surveyor. The Plan shall contain a minimum of two observed reference points noted on the printed Plan. The Reference Plan drawing shall be modified to represent real world co-ordinates based on North American Datum (NAD) 1983 Canadian Spatial Reference System (CSRS) Version 6 (2010.0). The drawing shall be supplied in digital format (AutoCAD.dwg or ArcGIS shapefile) and hard copy format;

3. that the Applicants must enter into a personal undertaking with the City that establishes the minimum southerly interior side yard to be 1.5 m for the severed lot instead of the 1.32 m required by the Committee of Adjustment to the satisfaction of the City’s Planning Services Division;

4. that confirmation is received from the Planning Services Division that the southern interior side yard of the retained parcel conforms to the regulations in the Zoning By-law;

5. that payment of the required Parkland fee is made, pursuant to s. 51.1(1) and s. 51.1(3) of the Planning Act for the lot to be severed;

6. that the Applicants be required to construct one (1) new parking stall for the retained lot, including acquiring an Entrance Permit to the satisfaction of the City’s Engineering and Operations Division;

7. that the Applicants shall submit a lot grading and drainage plan for the severed and retained lands and shall construct drainage facilities and dedicate easements as required to the satisfaction of the Engineering and Operations Division;

8. that the Applicants shall submit an application to the City’s Environment Division, including a deposit, for the installation of new water and sanitary service connections for the severed property;

9. that the Applicants, in conjunction with an application for an Entrance Permit for the severed lot, pay for the full cost for the removal, stumping and boulevard restoration of the existing boulevard tree;

10. that the Applicants provide the compensation for the removal of the existing boulevard tree as per the City’s Public Tree By-law at the rate of 2:1. This is to be paid for through the street tree fee of $500 each;

11. the Applicants provide one new street tree on the frontage of the newly created lot. This is to be paid for through the street tree fee of $500; and

12. that the Applicants dedicate, at no charge to Synergy North, a 3 m easement along the edge of the severed and retained lots fronting Frankwood Avenue.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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

PL210021 – Schedule 1```