Wynstar Developments Inc. v. Springwater (Township), 2021 CanLII 54179

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 16, 2021

CASE NO(S).:

PL200654

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

Applicant and Appellant:

Wynstar Developments Inc.

Subject:

Consent

Property Address/Description:

5 Glen Echo Drive

Municipality:

Township of Springwater

Municipal File No.:

B-07/20

LPAT Case No.:

PL200654

LPAT File No.:

PL200654

LPAT Case Name:

Wynstar Developments Inc. v. Springwater (Township)

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

Applicant and Appellant:

Wynstar Developments Inc.

Subject:

Consent

Property Address/Description:

5 Glen Echo Drive

Municipality:

Township of Springwater

Municipal File No.:

B-08/20

LPAT Case No.:

PL200654

LPAT File No.:

PL200655

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

Applicant and Appellant:

Wynstar Developments Inc.

Subject:

Consent

Property Address/Description:

5 Glen Echo Drive

Municipality:

Township of Springwater

Municipal File No.:

B-09/20

LPAT Case No.:

PL200654

LPAT File No.:

PL200656

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

Applicant and Appellant:

Wynstar Developments Inc.

Subject:

Consent

Property Address/Description:

5 Glen Echo Drive

Municipality:

Township of Springwater

Municipal File No.:

B-10/20

LPAT Case No.:

PL200654

LPAT File No.:

PL200657

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

Applicant and Appellant:

Wynstar Developments Inc.

Subject:

Minor Variance

Variance from By-Law No.:

5000

Property Address/Description:

5 Glen Echo Drive

Municipality:

Township of Springwater

Municipal File No.:

A-16/20

LPAT Case No.:

PL200654

LPAT File No.:

PL200658

Heard:

May 27, 2021 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel*/Representative

Wynstar Developments Inc.

Mark Kemerer*

Township of Springwater

Brent Spagnol

DECISION DELIVERED BY G.C.P. BISHOP AND K.R. ANDREWS AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an appeal under s. 53(19) and s. 45(12) of the Planning Act (the “Act”) from the Township of Springwater’s decision to deny the consent applications and a minor variance application sought by Wynstar Developments Inc. (the “Appellant”) to create four new lots on lands at 5 Glen Echo Drive, in the Settlement Area of Midhurst (also referenced as “Midhurst Village”).

2Brent Spagnol, Director of Planning Services for the Township of Springwater (the “Township”), was on the VH and indicated that the Township takes no position on this matter and Mr. Spagnol was in attendance only to assist the Tribunal, if required. Mr. Spagnol is the author of positive planning reports for both the proposed four severed lots and the required minor variance.

SUBJECT LANDS AND SURROUNDING AREA

3The subject lands are comprised of four original lots that have merged on title consisting of two properties along Bayfield Street North (1053 and 1063) and two properties on Glen Echo Drive (3 and 5). The Appellant also owns one other parcel along Bayfield Street North (“Bayfield”) lying South of this existing block of land (1039). The retained lands comprise the other three properties, plus the remainder of the lands at 5 Glen Echo Drive, that are not part of the severed properties.

4The subject lands are comprised of an area of approximately 1.5 hectares with 95 metres (“m”) of frontage to the west, on Bayfield, 98 m of frontage to the north, on Glen Echo Drive, and 92.1 m of frontage to the east, on Heatherwood Drive. Bayfield is also known as Provincial Highway 26, whereas both Glen Echo Drive, leading easterly off of Bayfield, and Heatherwood Drive, running parallel to Bayfield, are both local streets.

5The four severed lots are all aligned with frontage, facing east, along Heatherwood Drive with the most northerly lot flanking Glen Echo Drive to the north.

6The subject lands are contained within the Built Boundary of the Settlement Area designation as illustrated on Schedule 5.1 (Land Use Designations), in the County of Simcoe Official Plan (“CSOP”). Schedule A-8 (Midhurst Secondary Plan Area) of the Township of Springwater Official Plan (“TSOP”) illustrates the subject lands as straddling the Midhurst Village designation, on the interior portion, and the Commercial/Mixed Use designation along Bayfield. The majority of the subject lands are designated Residential (R1) with a small portion of the overall lands designated General Commercial in the northwest corner, abutting Bayfield and Glen Echo Drive, in accordance with the Comprehensive Zoning By-law No. 5000 (the “BL”).

7The proposed severed lots are contained within the Midhurst Village designation and the retained lands are located within the Commercial/Mixed Use designation in the TSOP. The proposed severed lots have areas ranging from roughly 1,566 to 1,573 square metres (“sq m”), all with frontages along Heatherwood Drive being 23.7 m each. The retained land has a rough area of 9,500 sq m, with frontage on both Bayfield and Glen Echo Drive.

8The Midhurst Village is serviced with municipal (public) water supply, but all lots have their own private septic systems. The Residential (R1) zone permits lot frontages of 30 m and 1,390 sq m on public water with private septic systems. The proposed severed lots would comply with the lot area requirements but not with the frontage requirements of the BL. To achieve the desired frontage for the proposed severed lots (23.7 m), the Appellant also applied for a minor variance to the BL for relief from the required frontage and also relief from the required exterior side yard setback for Lot 1 along the northern limit of Glen Echo Drive. The request is for a setback of 6 m, whereas the BL requires a setback of 9 m along Glen Echo Drive.

9The subject lands are located in the southern portion of the Midhurst Settlement area. The entire internal area is comprised of single detached dwellings with a mix of residential and industrial uses along the Bayfield corridor.

EVIDENCE

10The Tribunal heard from Darren Vella, a Registered Professional Planner, on behalf of the Appellant. His opinion evidence was uncontested by any other witness in the same discipline. The only other witness at this event was Brent Spagnol, Director of Planning for the Township, called by the Tribunal to answer and clarify a question put to Mr. Vella that was squarely within the knowledge and purview of the Township and Mr. Spagnol.

11Mr. Vella has been on this file since its inception. A pre-consultation meeting was held with Township staff and the Notawasaga Valley Conservation Authority (“NVCA”) on September 10, 2020 to discuss the applications and no major concerns were identified through the pre-consultation process. The NVCA attended the subject lands to provide a general assessment of natural heritage features and functions and concluded that no further submission requirements were identified.

12Mr. Vella prepared and submitted a Planning Justification Report and severance sketch, dated October 28, 2020 and included in the application package is the following:

1. Functional Servicing Memo, October 2020 – prepared by Pinestone Engineering Limited

2. Stage 1 and 2 Archaeological Assessment Report, October 2020 – prepared by Amick Consultants Limited

3. ESA Synopsis, October 2020 – prepared by Azimuth Environmental Consulting, Inc.

4. Traffic Letter, October 2020 – prepared by JD Engineering

5. Tree Inventory, Analysis, and Preservation Report, including associated drawings, October 2020 – prepared by Landmark Environmental Group Ltd.

13The application package was reviewed both internally by the Township and also by the Ainley Group, being the consulting engineers working on behalf of the Township. The Ministry of Transportation also reviewed the applications and supplied a letter in support, with recommendations.

14The subject lands are located at the entrance to the existing residential neighborhood extending from Bayfield. The Bayfield corridor is intended to be developed as a Mixed Use/Commercial corridor. Mr. Vella opined that the existing neighborhood features a variety of single detached dwellings including newer and older homes of two storey detached, split level and bungalow-built forms. Mr. Vella stated that he was the Director of Planning for the Township when the Willow Creek estates subdivision, to the south and west, was built out. The tree cover that existed on those lots is similar to the tree cover that exists on the subject lands.

15It was Mr. Vella's opinion that the lot fabric compatibility is measured in a few different ways and that frontage is only numerical. There are a variety of lot sizes already in the area, including 18 m frontage lots along Bayfield and that the character will always evolve, but the proposed development will have similar architectural flair. Mr. Vella opined that this is not an overall compatibility issue.

16Mr. Vella noted that the existing lots within the Willow Creek estates subdivision typically feature at least 30 m of frontage; however, the proposed lots of this matter are positioned between these lots and the mixed-use area of Bayfield Street, which feature even narrower lots than the proposed lots. He opined that the width of the proposed lots (23.7 m) would provide a desirable transition between the wider existing lots of the subdivision, and the narrower lots located on Bayfield Street.

17Mr. Vella reviewed the planning reports, authored by Mr. Spagnol, for both the consent applications and a minor variance application. Both reports contain a full review of the planning regime and conclusions by Mr. Spagnol. Mr. Vella agrees with Mr. Spagnol’s findings that there is enough flexibility in the TSOP to allow for the extra lot with no negative impact and that all four tests for the requested minor variances are also met.

THE PLANNING REGIME

18Mr. Vella reviewed s. 2, s. 51(24) and s. 53 of the Act and stated that the lands are ideally located within a settlement area and will deliver a built form that is well designed and reflects the existing housing stock. The applications are supportive of the efficient use of infrastructure, are appropriate and represent orderly development of the lands and therefore conforms to the Act.

19Mr. Vella stated that s. 1.1.1 of the Provincial Policy Statement 2020 (“PPS”), also discourages development and land use patterns that may cause environmental or public health and safety concerns, and instead, promotes cost-effective development that minimizes land consumption and servicing costs and s. 1.1.3 of the PPS states that settlement areas are the focus of growth and development and their regeneration should be promoted. Further, land use patterns must be based on the efficient use of land and resources and be appropriate for the infrastructure and public service facilities planned or available.

20To help address and mitigate these concerns, the Township has requested that a Consent Agreement be entered into, which will further address technical matters such as: Overall Drainage Plan; Off-site works associated with Ditching/Municipal connection to water; Confirmation of capacity in water system; Completion of hydrogeological report to the satisfaction of the Township and their consulting engineer (Ainley Group); Completion of a Reasonable Use Assessment prepared by a certified engineer; Confirmation of the provision of septic from a certified Engineer and; securities associated with external works.

21It is Mr. Vella’s opinion that satisfying the imposed conditions in the Consent Agreement will ensure consistency with the PPS and further demonstrate that the site conditions are suitable for the long term, with no negative impacts.

22Mr. Vella opined that there is a greater emphasis on intensification provided in the framework of the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Growth Plan also prioritizes efficient use of land infrastructure within existing settlement areas. It also directs municipalities to support housing choice by achieving the minimum intensification target and providing a range of housing options. This proposed development supports Provincial and County level targets by proposing new residential lots within the built boundary of the Midhurst Settlement area and conforms to the Growth Plan.

23Mr. Vella’s view of the CSOP is that it reinforces the Growth Plan directing intensification within the settlement areas. It is expected that 15% of the growth throughout the County will be concentrated within these settlement boundaries. The proposed four new lots meet the intent and purpose of the CSOP.

24Mr. Vella stated that the new single attached dwellings, conceptually shown with 2,195 square feet (“sq ft”) footprints, on municipal water and private individual septic systems is appropriate and consistent with the existing neighborhood character and the intent of the TSOP designation. The proposed Consent Agreement will control the siting of homes and will flush out any issues with respect to septic availability, which in turn will automatically control the number of available lots. General consent policies, on an infill basis, are directed away from main or arterial roads. The size of the proposed parcels are appropriate for the proposed use and, although the associated minor variance application seeks to provide a reduced lot frontage, this still allows for generous, functional building lots in a manner that complements the neighborhood.

25Mr. Vella opines that there is flexibility built into the Midhurst Secondary Plan with respect to lot frontage and area, provided the intent is maintained by recognizing the existing community and permitted building types that are limited to single detached dwellings. There are Urban Design Guidelines that will also control the development of the proposed lots through the Consent Agreement process. It is Mr. Vella’s opinion that the proposal is in conformity to the Midhurst Secondary Plan.

MINOR VARIANCES

26The proposed severed lands conform to all but two criteria, as set out in the BL. This includes a reduction in frontage of the proposed lots and a reduction in the exterior side yard setback for the corner lot at Glen Echo Drive and Heatherwood Drive.

27Mr. Vella opined that if one would drive through this area of the subdivision, after the development took place, the homes would be consistent in character and functionality, with no noticeable difference to the existing framework. The 6 m exterior side yard setback is already considered in the parent BL as this setback is the minimum setback for existing lots with both municipal water and sewer. Mr. Vella therefore opined that a reduction in the side yard setback is not a safety concern nor does it have a negative impact on the neighbourhood while still having the ability to provide a functional lot.

28It is Mr. Vella’s opinion that the proposed variances maintain the general intent and purpose of the TSOP and the BL, are desirable for the development of the land and are minor in nature.

29Finally, Mr. Vella opined that, based on the above review of the applicable Planning Policy documents including the Act, PPS, Growth Plan, SCOP, TSOP and Zoning By-law, it is his opinion that the proposed consent and minor variance applications are consistent with or conforms to the relevant policies, satisfies the test under Section 45 of the Act, represents good planning and is in the public interest.

FINDINGS AND ORDER

30The Tribunal queried Mr. Vella with respect to the creation of three lots instead of the proposed four. A three lot proposal could conform in all respects to the BL. Mr. Vella opined that there is nothing in the policy documents that restrict the creation of the extra lot, it is a more efficient use of the land, and there are smaller frontage lots in the immediate vicinity. Mr. Vella stated that there is a corridor study underway along the Bayfield corridor to look at intensification in this area. Buildings of up to six stories are proposed for the corridor and the subject lands back onto the corridor strip. With municipal water already in the area, the proposal along the Bayfield corridor will include the installation of sewer to accommodate the intensification along Bayfield. This will ultimately create higher intensification and therefore, in the future, give more weight to more intensification on the subject property. The intensification, as proposed, is sensitive to the character of the area with a compact urban design, consistent with housing types and is an appropriate transition between the low-density subdivision and the commercial and mixed use area along the Bayfield corridor.

31Mr. Vella could not speak directly to the intensification goals of the Township, and so Brent Spagnol was called by the Tribunal to speak about this subject. Mr. Spagnol explained the difficulties that the Township was having trying to meet the growth forecasts. Mr. Spagnol opined that, given that the existing Growth Plan policy's push for development within built up areas, this is the catalyst for the study to intensify along the Bayfield corridor. The goal, by the year 2031, is 777 residential units within the built-up boundary between Elmvale and Midhurst. When queried by the Tribunal, Mr. Spagnol indicated the Township is not currently on target to meet its intensification goals.

32With the exception of the clarification from Mr. Spagnol on intensification targets, the only opinion evidence before the Tribunal consisted of the testimony of the Applicant/Appellant’s land use planning consultant, Mr. Vella.

33Based on the evidence before it, the Tribunal is satisfied that the four tests under s. 45(1) of the Act have been met by this application and that the appeal should be allowed. The Tribunal agrees with Mr. Vella's interpretation of the TSOP and Midhurst Secondary Plan policies, insofar as there is enough flexibility built into the plan to allow for the reduction in the frontage of the proposed lots while maintaining lot areas that are larger than the minimum BL standard.

34The Tribunal is therefore satisfied that the variances sought meet the general intent and purpose of the TSOP and Midhurst Secondary Plan.

35The Tribunal is also satisfied that the variance is desirable for the appropriate development of the subject property as the Tribunal is satisfied that the variances sought are minor in nature that it will not cause any adverse impacts on the residents of the building or on the abutting properties and the neighbourhood in general.

36Furthermore, the Tribunal is also satisfied that a plan of subdivision is not necessary for the orderly development of the Township, pursuant to s. 53(1) of the Act, and that the application has had regard for the criteria set out under s. 51(24) of the Act. The Tribunal agrees with Mr. Vella's opinion that the development by a plan of subdivision is not necessary in this instance, as this is truly an infill of a currently vacant lot within the built up area of Midhurst.

37There were a number of concerns expressed by the participants with respect to items including: drainage; density and intensification; compatibility with the neighbourhood given the proposed lot widths and narrow side yards; privacy; lot coverage; and tree removal. Mr. Vella touched on all of these concerns throughout his evidence, his opinion was uncontested, and the Tribunal is therefore satisfied that the proposed conditions imposed, including the Consent Agreement, will assist in mitigating these concerns.

38Accordingly, the appeals are allowed, and provisional consent is hereby granted subject to the conditions set out in Attachment 1 appended hereto. The variances set out below are also authorized.

THE VARIANCES

39The subject lands are currently zoned Residential (R1) within Comprehensive Zoning By-law No. 5000.

a) Minimum Frontage Requirements

Section 4.3.3 b) requires a minimum lot frontage of 30 metres (98 ft) for residential lots serviced by municipal water and private septic systems. The request for relief provides lot frontages of 23.7 metres (77 ft) for all consent applications B07/20 to B10/20 inclusive (Lots 1 to 4 inclusive).

b) Minimum Exterior Side Yard Setback – Lot 1 – B07/20

Section 4.3.7 a) permits an exterior side yard setback of 9 m (29 ft) and the requested relief provides a reduced setback of 6 m (19 ft) for a dwelling located on Lot 1- Application B07/20.

40The Tribunal so Orders.

“G.C.P. Bishop”

g.c.p. bishop

VICE CHAIR

“K.R. Andrews”

K.R. ANDREWS

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.

ATTACHMENT 1

That the report from the Director of Planning regarding consent applications B07/20 to B10/20 dated November 25, 2020 be received;

That subject to the input received at the public meeting and the discussion that follows, the Committee of Adjustment approve applications B07/20 to B10/20 subject to the following conditions:

1. That the applicant meet all the requirements, financial or otherwise of the Municipality including posting of securities;

2. That the applicant provide two copies of the registered survey of the severed and retained lots prepared by an Ontario Land Surveyor;

3. That the owner/applicant satisfy and be responsible for all costs to satisfy Section 65 of the Drainage Act, 1990 if applicable;

4. That the applicant provide confirmation that reasonable use guidelines can be met with respect to sanitary services on the severed and retained lots;

5. That the applicant be required to pay to the Township a parkland dedication fee for each new lot in line with the Township’s Parkland Dedication policy;

6. That the applicant obtain minor variance or rezoning approval to permit deficient lot frontages for the 4 severed and 1 retained parcels;

7. That the applicant provide written confirmation from the applicable authority confirming that the site is suitable for residential development in accordance with Ministry of Environment, Conservation and Parks (“MECP”) requirements;

8. That the applicant enter into a consent agreement with the Township related to the following matters to the satisfaction:

• Drainage and Storm Water Management

• Confirmation of capacity in water system

• That a hydrogeological report be provided to the satisfaction of the Township of Springwater and the consulting engineer, Ainley Group

• Reasonable Use Assessment prepared by certified engineer

• Confirmation of the provision of septic from a certified engineer

• Utility Plans (hydro, telecommunications, natural gas etc.)

• Tree Preservation Plan

• Provision of driveway access

• Park Land/Cash in Lieu

• Securities to be posted associated with offsite works