Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 15, 2021
CASE NO(S).: PL190386
The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Paul Richardson
Applicant: Barakaa Developers Inc.
Subject: Consent
Property Address/Description: 160 Hillcrest Drive
Municipality: Town of Whitby
Municipal File No.: B050/2019
OLT Case No.: PL190386
OLT File No.: PL190386
OLT Case Name: Richardson v. Durham (Region)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Barakaa Developers Inc.
Subject: Minor Variance
Variance from By-law No.: 2585
Property Address/Description: 160 Hillcrest Drive
Municipality: Town of Whitby
Municipal File No.: A/60/19
OLT Case No.: PL190386
OLT File No.: PL200342
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Barakaa Developers Inc.
Subject: Minor Variance
Variance from By-law No.: 2585
Property Address/Description: 160 Hillcrest Drive
Municipality: Town of Whitby
Municipal File No.: A/61/19
OLT Case No.: PL190386
OLT File No.: PL200343
Heard: May 19-20, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Barakaa Developers Inc. | Raj Kehar |
| Paul Richardson | Self-Represented |
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON MAY 20, 2021 AND ORDER OF THE TRIBUNAL
BACKGROUND AND CONTEXT
1The matters before the Tribunal are three appeals. One was filed by Paul Richardson (the “Appellant”) pursuant to s. 53(19) of the Planning Act (the “Act”) resulting from the Regional Municipality of Durham’s (the “Region”) Land Division Committee’s approval of an application for Consent to sever one lot from an existing lot. Two additional appeals were filed with the Tribunal by Barakaa Developers Inc. (the “Applicant”) pursuant to s. 45(12) of the Act, resulting from the Town of Whitby’s (the “Town”) Committee of Adjustment’s (“C of A”) refusal of two applications for minor variances for lot frontages sought in association with the Consent application and the proposed dwellings on the two lots. The lands that are the subject of the appeals are 160 Hillcrest Drive, within the Town and Region (the “Subject Lands”)
2The Subject Lands are within a two-tier municipal governance system. The upper-tier, the Region being the approval authority on the Consent application and being heard by its Land Division Committee. The minor variances are heard through the C of A, and the lower-tier municipality, the Town is the approval authority on the variances sought.
3The Subject Lands are located south east of Beech Street West and Cochrane Street, and are municipally addressed as 160 Hillcrest Drive. The property is approximately 1,025.8 square metres (“sq m”) or 11,042 square feet (“sq ft”) in area and has approximately 23.6 metres (“m”) or 77.4 ft of lot frontage. The property currently contains a two-storey detached residential dwelling, a detached garage located in the southerly side yard, and a small accessory structure (shed) in the south east corner of the rear yard. The original makeup of the existing dwelling was constructed in approximately 1870.
4Regional Planning staff had recommended approval to the Land Division Committee through the Staff Planning Report (the “Land Division Report”), dated July 13, 2017. The Town had no objections to this recommendation pending various conditions being fulfilled.
5The Land Division Committee, at its July 17, 2017 meeting, chose to table the application for up to two years, citing some concerns, mainly with severing the lot without the minor variances having been dealt with.
6On July 15, 2019, the Land Division Committee met to review the tabled application for the Subject Lands, from two years prior. Regional Planning staff again recommended approval (July 11, 2019 - “Land Division Report-2”) and the Town had no objections, again pending various conditions being fulfilled. The Committee approved the application unanimously, subject to various conditions being fulfilled as provided by both Regional and Town staff.
7On July 25, 2019 the C of A heard applications A/60/19 and A/61/19, the Applicant’s minor variance applications seeking relief from the Town’s Zoning By-law No. 2585 (the “ZBL”), to permit reduced frontages for the two lots approved by the Land Division Committee. The C of A chose to table the applications citing concerns that the Land Division Committee’s decision was still not binding being within the statutory 20-day appeal period. The decision was in fact appealed by the Appellant, Mr. Richardson.
8The minor variances were heard by the C of A on March 5, 2020, a continuance of the July 25, 2019 tabling of the applications. Town Planning staff had recommended approval to the C of A for the two applications through the Staff Planning Report (the “C of A Report”), dated August 9, 2019. The C of A chose to deny the applications and indicated that their decision was that the variances sought were not minor in nature. The Applicant chose to appeal the C of A decision to the Tribunal.
INTRODUCTION
9The Tribunal had administratively consolidated the files and at the hearing the consent and variance appeals were heard together.
10The Tribunal had received correspondence from both the Region and the Town that they would not be attending the hearing and were not taking a position on the matters. This was verified at the onset of the hearing when Counsel for the Applicant, Mr. Kehar confirmed that both the Town and the Region would not be present. No others came forward seeking status on the matters to be heard.
11Mr. Richardson was present and was the Appellant on the consent appeal before the Tribunal. With the consolidation of the files before the Tribunal, and evidence being presented on both matters under appeal, the Member made clear that the Applicant was being provided Party Status in the Consent appeal and conversely Mr. Richardson was being provided Party Status for the variance appeals as well. Both Parties satisfied the criteria required to be provided status. Also, hearing no objections the Member noted, that with the overlap in evidence that was set to be presented the Parties had interest in both the consent and variance appeals before the Tribunal.
12Mr. Kehar submitted to the Tribunal that three items prepared by the Applicant be received and marked as Exhibits for the proceedings. The Appellant provided no objections and the following were marked by the Tribunal:
i. Document Book - Exhibit 1
ii. Addendums 1-4 - Exhibit 2
iii. Applicant’s proposed Minor Variance and Consent conditions - Exhibit 3
EXPERT WITNESS DEEPAK BHATT
13The Tribunal having read the Curriculum Vitae and Expert’s Duty Form provided by Deepak Bhatt, and hearing no objections, duly affirmed and qualified Mr. Bhatt as an expert in land-use planning.
14Mr. Bhatt provided the Tribunal with a very detailed opinion and boundaries depicted below, of a delineated neighbourhood and study area that he had established in reviewing the Subject Lands. He opined that the Subject Lands were bounded by the following delineation:
i. To the North - the Canadian Pacific Rail Line
ii. To the West - Lynde Creek Conservation Reserve
iii. To the East - Brock Street North
iv. To the South - Walnut Street West
15The delineated area comprising over 150 lots within the study area led to the opinion by Mr. Bhatt that the makeup of the neighbourhood is very diverse with residential uses ranging from R1-R2-R3-R4B-R1DT-R2-DT (being single detached, semi-detached, townhouse, residential apartment) and included industrial and commercial zonings, as well as including the Town’s Downtown at the southern aspect of the study area.
16Mr. Bhatt provided an initial summary opinion that the consent and variances sought should be approved and are consistent, conform and have regard to all applicable legislation and meet the four statutory tests required for minor variances.
17Mr. Bhatt opined that the consent would allow for the existing lot at 160 Hillcrest Drive to be severed into two lots where two dwellings are proposed that meet all required Town zoning setbacks and restrictions, save and except the lot frontage requirements for the two lots, which require a 15 m lot frontage, whereas an 11.8 m frontage is being proposed for each lot. In his opinion this was a minor quantitative variance being sought and he highlighted that this was the only variance being sought to conform to the current ZBL.
18Mr. Bhatt opined that from an urban design perspective the proposed dwellings are compatible with the neighbourhood as delineated and with the immediate neighbourhood of Hillcrest Drive. Compatibility is defined as not being the same but existing harmoniously with one another and having no negative impacts on one another.
19Site Context was provided by Mr. Bhatt. Hillcrest Drive is a crescent shaped street, with the eastern portion being where the Subject Lands are located, and with Maple Street intersecting just south of the Subject Lands. This creates a unique dynamic in the opinion of Mr. Bhatt where the Subject Lands are one of only three current lots fronting on the eastern portion of Hillcrest Drive between Beech Street to the north and Maple Street to the south. Across the street from the Subject Lands are lots with 15 m plus lot frontages and dwellings aged in excess of 50 years plus and with more traditional massing and building typology. However, immediately north (162 Hillcrest Drive) of the Subject Lands is a more recent dwelling upgrade more similar as proposed in massing to the Applicant’s dwelling proposals, with its garage being the closest to the abutting boundary with the Subject Lands. Also, the lots to the south are the rear yards of the dwellings on Maple Street, providing a different building relationship from the proposed dwelling side yard setback to the existing rear yard setback to the existing dwellings on Maple Street and the rear portion of the accessory structure that is currently closest to the side setback boundary of the Subject Lands.
20Mr. Bhatt opined that the above highlights not only the diverse makeup of the neighbourhood but also the changing area “fabric” and “evolution”. Mr. Bhatt opined there is no true prevalent lot makeup or dwelling typology in this neighbourhood and highlighted the broad range of built forms and zone types as already depicted in his study area. He further pointed to the range and frequency of residential uses seen within the neighbourhood including all variations in massing, typology and age, and also lot frontages seen within the neighbourhood ranging from 9 m to 15 m.
PLANNING ANALYSIS
21Mr. Bhatt opined that the consent, and variances sought have regard for matters of provincial interest, enumerated in s. 2 of the Act. He opined that the proposed severance and dwellings provide specific attention to s. 2 of the Act, and subsections:
(e) the supply, efficient use and conservation of energy and water;
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
(g) the minimization of waste;
(h) the orderly development of safe and healthy communities;
(j) the adequate provision of a full range of housing
(p) the appropriate location of growth and development;
(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
(r) the promotion of built form that,
(i) is well-designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
The Growth Plan
22Mr. Bhatt opined that the consent, and variances sought conform with The Growth Plan for Greater Golden Horseshoe 2019, as amended by Amendment 1, 2020 (the “GP”). In his opinion key aspects of conformity to the GP could be taken from, but not limited to:
s. 1.2.1 Guiding Principles and the prioritizing of intensification in strategic growth areas to make efficient use of land and infrastructure and support transit viability. This is achieved in the opinion of Mr. Bhatt with the underutilized lands being moderately and compatibility intensified within proximity to the Town Downtown and less than 800 m from the Brock Street North transit artery.
s. 2.2.1 Managing Growth, and growth directed to settlement areas which Mr. Bhatt opined is achieved by the proposal and the Subject Lands falling within the delineated settlement area, having municipal services including water and sanitary services available and supporting moderate intensification contributing to a complete community.
s. 2.2.6 Housing policy in the opinion of Mr. Bhatt is being met, with introduction of newer housing choices provided, and also contributing to regional and provincial housing and density targets.
s. 5.2.4 and s. 5.2.5 Policies within the GP in the opinion of Mr. Bhatt highlight conformity of the proposal with Growth Forecasts and Intensification Targets being contributed to in an established area, in proximity to the Downtown and established infrastructure of the Town, that does so in a compatible and respectful manner to what is existing in the neighbourhood.
The Provincial Policy Statement, 2020
23Mr. Bhatt opined that the consent, and variances sought are consistent with Provincial Policy Statement, 2020 (the “PPS”). He provided evidence and opined that the proposal is consistent with s.1.1.1, healthy, livable and safe communities are sustained as outlined by the PPS in subsection e) of the policy that as indicated, the proposal promotes the integration of land-use planning and growth management, transit-supportive development and utilizes existing infrastructure while moderately intensifying the lot.
24Similar to the GP, the PPS in s. 1.1.3 endeavours to intensify within the identified settlement areas. Mr. Bhatt opined that the consent and variances are consistent with this policy and advised the Tribunal that in his opinion s. 1.1.3.4 and the provision of appropriate development standards should be promoted as they are in the proposal to facilitate intensification.
25Also similar to the GP, the PPS provides policies in s. 1.4 that speak to housing and the provisions for appropriate range and mix of housing options and densities required to provide such. Mr. Bhatt opined that again consistency is provided by the proposal in achieving these policy objectives.
The Regional Official Plan
26Mr. Bhatt opined that the consent, and variances sought, conform with the Region’s Official Plan (“OP”). He provided his opinion that s. 1.1.1 speaks to the Region’s mandated targets as outlined in the GP and PPS and in s. 1.1.1 (b) that the urban areas of the Region are mandated to intensify.
27Mr. Bhatt opined that the proposal conforms to policies in s. 4.1.1 and s. 4.2.1 that speak to housing and the provisions to provide and diversify housing types, size and tenure in urban areas.
28Section 4.3.2 in the opinion of Mr. Bhatt is an excellent example of the proposal’s conformity to the Regional OP, particularly s. 4.3.2 (c) that the Region supports the creation of new residential units on vacant or underdeveloped lands through infilling in urban areas.
29Conformity was further exemplified in s. 8B.1.2 and 8B.1.4 in the opinion of Mr. Bhatt, with policy 8B.1.2 speaking to living area shall be developed in a compact form through higher densities and by intensifying and redeveloping existing areas and 8B.1.4 indicating the Regional Council shall support and encourage higher densities where appropriate and maximize permissible densities on vacant lands within the urban boundary.
30In closing of his Regional OP conformity review, Mr. Bhatt advised the Tribunal that s. 14.8 of the OP speaks directly to severances as sought by the Applicant with their consent appeal. It was his opinion that the consents sought conformed to s. 14.8.1, 14.8.2 and s. 14.8.5 in its adherence and conformity to the OP and the Act, but opined that s. 14.8.7 is of the upmost importance with the consent sought being as the policy reads, an adequate size for the use proposed. It was his opinion that one must take into account, that even with the severances provided, both the remaining and newly created lot would have an area larger than required by the Town ZBL and no variance would be required.
The Town Official Plan
31Mr. Bhatt opined that the consent, and variances sought conform with the Town’s OP. Cited by Mr. Bhatt were several policies, but emphasis was provided to s. 2.1.1, guiding principles, particularly b, c, d, f, and g, which he opined highlight conformity with the Town OP. With the above, in Mr. Bhatt’s opinion conforming with the proposal’s end result of providing balanced appropriate growth, with growth directed to an OP Central Area, and a proposal promoting orderly compact, compatible growth and promoting community renewal and using existing infrastructure in general proximity to the Town’s Downtown, encouraging its continued revitalization.
32Section 2.2.1, particularly a, b, and c show relationships and overlap of the Regional OP and Town’s OP. It was the opinion of Mr. Bhatt that the intensification identified in the Regional OP was alike to the Town’s Central Area identified and the Subject Lands falling within both boundaries.
33Section 4 of the Town OP was also identified by Mr. Bhatt as a primary indicator of conformity by the proposal and the OP. The Subject Lands as identified in s. 4.1.1 are within the Central Area and designated residential. As provided in s. 4.1.2 the proposed uses are permitted uses. Further, Mr. Bhatt opined that the proposal conforms with s. 4.2, Intensification within the OP, highlighting sections that the proposal conforms with including s. 4.2.4 and the use of existing water and sanitary and other utility services as well as parks, schools and community services.
34Mr. Bhatt brought the Tribunal to s. 4.4.1 and the OP goal being, the establishing and sustaining of a healthy, safe, attractive and complete community. It was his opinion that the proposal provides this to the area as sought by the OP in s. 4.4.2.1, the proposal providing a greater range of housing types, and conforming to s. 4.4.2.2, the Subject Lands intensifying and being in the appropriate location while maintaining and enhancing the character and identity of the residential neighbourhood.
35Concluding his testimony of the proposal’s conformity with the Town OP, Mr. Bhatt opined that policy s. 4.4.3.10 illustrates this for the Tribunal. In his opinion, s. 4.4.3.10.1 reading, “Council shall support the more efficient use of existing buildings through residential intensification and shall support infilling of vacant and underutilized properties in residential areas” is exacting what the proposal is endeavouring to do with the consent and variances on the Subject Lands.
Criteria s. 51(24) of the Act
36Mr. Bhatt took the Tribunal to s. 51(24) of the Act. This section of the Act provides criteria for consent approval and regard shall be given to these criteria for consent approval. In the opinion of Mr. Bhatt all relevant and applicable criteria are satisfied by the consent sought by the Applicant. He opined that the consents sought satisfy the following criteria:
a. As previously indicated, regard is provided to matters of provincial interest as referred to section 2 of the Act.
b. Is not premature and is in the public interest, citing appropriate intensification and housing options and more desired options in the public interest as the “as-of-right” building option on the Subject Lands.
c. Conforms to both the Regional and Town OPs.
d. The Subject Lands are suitable for the proposed uses as previously indicated through evidence provided with the GP, PPS and OPs reviewed.
e. The Subject Lands appropriately make use of the surrounding amenities and public infrastructure, including but not limited to the roadway network and transit infrastructure.
f. The proposed lots are not atypical of the surrounding neighbourhood, highlighted by the fact that only one variance is required to meeting all zoning restrictions on both retained and severed lots if approval is provided.
Interim Control By-law No. 7700-20, Town of Whitby
37A resolution was passed by Town Council on December 7, 2020 to enact in accordance with the provisions of s. 38(1) of the Act and put into affect By-law No. 7700-20, an Interim Control By-law, for an affective one-year period.
38This By-law directed that a study be undertaken to examine the land-use policies in the Town OP and zoning by-laws within an applicable defined area which the Subject Lands fall within, and essentially freezing development during this period while the study was being conducted.
39It was the professional opinion of Mr. Bhatt that Interim Control By-law No. 7700-20 does not apply to the applications for the Subject Lands. Both applications for consent and minor variances predate the By-law, and further, all appeals before the Tribunal were applied for, also before the By-law, and thus are exempt from the By-law.
As-of-Right Built Forms allowed on the Subject Lands
40Mr. Bhatt provided evidence to the “as-of-right” conditions or built form and structure that would be allowed on the Subject Lands without any land-use approvals required. It was his expert opinion and he had confirmed with the Town, that currently the as-of-right dwelling that could be built respecting all current zoning requirements, would be a two-storey dwelling in excess of 7600 sq ft.
41It was his opinion that this dwelling would be far less desirable in terms of massing and built form than what is currently proposed by the Applicant. Mr. Bhatt opined that the compatibility of the as-of-right dwelling would be far lesser than what is proposed and essentially the ZBL intent would be better achieved with what is proposed requiring a consent and variances allowing the Applicant to build two dwellings and the structures being separated by the required 2.8 m side setback, than one equivalent if not greater square footage dwelling that could readily be built, subject to the Applicant obtaining a building permit, and no land-use permissions required.
The Four Tests
42Section 45(1) of the Act prescribes four criteria or tests that are required to be satisfied or maintained for relief of a municipalities’ zoning by-laws and a minor variance be approved.
i. The general intent and purpose of the OP is maintained;
ii. The general intent and purpose of the By-law is maintained;
iii. The variance is deemed as desirable and appropriate development or use of land;
iv. The variance is deemed as minor in nature.
43It was the professional opinion of Mr. Bhatt that all four tests are maintained and achieved by the proposal. He opined that his fulsome testimony regarding the proposal’s OP conformity indicates the general intent of the OP is maintained. He also opined that the Subject Lands requiring only one variance per lot highlights the intent of the ZBL being maintained. It was his opinion that the ZBL’s intent is to ensure compatibility to dwelling location and providing adequate frontage for site services and utilities, which in his opinion is provided by the proposal. In fact, it was Mr. Bhatt’s opinion that the conditions would be improved with the current dwelling being legally non-conforming and significantly encroaching into the front yard setback required and also as indicated being a better alternative in his opinion than the dwelling allowed as-of-right.
44Mr. Bhatt opined that the 11.8 m frontage sought in lieu of the ZBL required 15 m frontage, represents a 3.2 m lot frontage variance, which is minor in nature quantitatively. He also opined that the lot frontages provided on the new lots are not out of character and are in fact quite indicative of what is seen already within the neighbourhood.
45Mr. Bhatt in providing his opinion as to the desirability and appropriateness of the variances turned the Tribunal to the as-of-right building that can be constructed on the Subject Lands. It was his opinion that this would be a less desirable massing and built form. He opined that the built forms being proposed are more compatible and improve the aesthetic fabric of the area. Lastly, Mr. Bhatt opined that the lots, if severed, would still provide a lot area in excess of what is required and will fit in appropriately and harmoniously in the neighbourhood.
46In closing, Mr. Bhatt concluded that in his expert opinion the consent and variances have regard to s. 2 of the Act as required. They are consistent with the PPS and conform to the GP and both the Regional and Town OPs. The consent satisfies all applicable criteria set out in s. 51(24) of the Act and the variances satisfy and maintain the four tests set out in s. 45(1) of the Act. Lastly it was his opinion that the consent and variances represent good land-use planning and are in the public interest.
OPPOSITION TO THE VARIANCES AND CONSENT
47The Appellant had appealed the decision of the Land Division Committee, which approved the consent of the Subject Lands. Having put forward that appeal and residing immediately across the street from the Subject Lands, the Tribunal did also provide Mr. Richardson party status for the variances also under appeal before the Tribunal and consolidated with the consent appeal file.
48The Appellant being self-represented declined to cross-examine Mr. Bhatt, however, he did provide three items that he intended to use as evidence before the Tribunal. The Tribunal marked “Appendix 1/9/12” jointly as Exhibit 4.
49It was the opinion of the Appellant that the consent and variances required to construct the two dwellings as proposed were out of character for the neighbourhood which he defined as the “horseshoe crescent” being Hillcrest Drive itself.
50The Appellant offered little land-use planning evidence to the Tribunal to support his position, however, did provide in Exhibit 4, the Interim Control By-law from the Town. It was his position that this was indicative that the Subject Lands and the requests for consent should not be approved, nor the variances. However, he did not refute the opinion of Mr. Bhatt that the Interim Control By-law does not apply to the appeals before the Tribunal.
51The Appellant put forward the opinion that the homes proposed were too big and the frontage was not inline with the neighbourhood and referred to the Town OP and Guiding Principles, s.2.1.1 (f), which reads;
… to require that new development and redevelopment is compatible with the scale and density of the existing built form and that the character of existing and well established residential neighborhoods is maintained and enhanced over time.
52It was the opinion of the Appellant, that many residents of Hillcrest, including himself “like the street the way it is”. He opined that older residents stay in the neighbourhood because of the mature trees and larger lots and newer residents come to the neighbourhood for the same reasons.
53The Appellant submitted that he was not necessarily against redevelopment, he just had concerns that the proposal having two dwellings, was too dense and large for the neighbourhood. He also opined that the possibility of secondary units may lead to an increase in traffic and street parking.
54Mr. Kehar asked the Appellant, if he would agree that the Subject Lands currently has the largest frontage in the immediate neighbourhood, being Hillcrest Drive. The Appellant concurred. Mr. Kehar also asked if the Appellant would agree that the nearby school off of Place Street and the local park off of Chestnut Street are in his neighbourhood. The Appellant concurred.
55Mr. Kehar put to the Appellant that the lots on Harris Street that Mr. Bhatt provided evidence of in his testimony are smaller than the proposed lots on the Subject Lands. To this the Appellant concurred. Mr. Kehar further put to the Appellant that Harris Street is a short walk from the Subject Lands and the development and homes there have been present, as provided by Mr. Bhatt, approximately 15 years. The Appellant concurred.
56Mr. Kehar in his cross-examination of the Appellant inquired if he could provide the number of homes currently fronting on Hillcrest Drive (on the east side) across the street from his home, south of Beech Street and North of Maple Street. The Appellant responded there were three homes fronting across the street from him on Hillcrest Drive. Further, Mr. Kehar inquired from the Appellant how many homes fronted on Hillcrest Drive on the west side (where he resides) within the same parameters. The Appellant responded seven or eight.
57The Appellant acknowledged that the west side of Hillcrest Drive does have double the driveways fronting on the street that the east side has, even in the event the consent was approved. He further acknowledged that the west side of the street having currently seven or eight homes, could have seven or eight accessory apartments.
58In concluding his testimony, the Appellant acknowledged and agreed that the as-of-right dwelling if constructed would be less desirable than what is being proposed, however, he said although that is the maximum sized dwelling that can be built, it is his position “why should it be built to the maximum”. The proposed in the Appellant’s opinion is still too large and out of character and any severance in his opinion should not occur.
MR. MALFARA- PLANNING WITNESS
59The Tribunal having read the Curriculum Vitae and Expert’s Duty Form provided by Justin Malfara, and hearing no objections, duly affirmed and qualified Mr. Malfara as an expert in land-use planning.
60Mr. Malfara is currently employed by the Town and was the author along with his Town staff colleagues, of the C of A Reports, dated August 9, 2019 and being Tabs 16 and 17 of Exhibit 1, that recommended approval of the minor variance applications.
61Mr. Malfara still provides and stands behind his original opinion that the two minor variances sought for the Subject Lands, meets the four tests and should be approved.
62In preparation for this hearing and in providing his witness statement for the Tribunal, Mr. Malfara has reviewed all applicable plans and planning instruments in effect and in force. Mr. Malfara having heard the evidence of Mr. Bhatt concurs with all his expert land-use opinions provided. Further, Mr. Malfara provided his own opinion that the consent and variances being sought provide and have regard to provincial interests as set out in s. 2 of the Act. They are also consistent with the PPS and conform to the GP and both Town and Regional OPs. It is the opinion of Mr. Malfara that the consent and variances represent good land-use planning and are in the public interest.
63Mr. Malfara opined the proposal would be an improvement to the Subject Lands and to the existing conditions provided by the legal non-conforming home that exists, as it is set back very little from the street on Hillcrest Drive. Also, Mr. Malfara also concurred that the as-of-right dwelling that could be built on the Subject Lands would be far less desirable for the area and would deviate from the general intent of the Town ZBL.
64It was the opinion of Mr. Malfara that Mr. Bhatt was correct, and the Interim Control By-law 7700-20 recently imposed by the Town is not enforceable to these applications and more appropriately the appeals before the Tribunal.
65Further, Mr. Malfara opined the dwellings proposed would be compatible with the immediate neighbourhood and the overall neighbourhood as delineated by Mr. Bhatt, and opposed the opinion of the Appellant that the neighbourhood is comprised solely of Hillcrest Drive. Mr. Malfara shared the opinion that the neighbourhood is very diverse as opined by Mr. Bhatt and that the 11.8 m variance for lot frontage is indeed minor and is shared by many lots in the neighbourhood. In closing Mr. Malfara opined that the proposal can coexist with the mature dwellings in the immediate area and noting the newer dwelling massing and typology north of the Subject Lands at 162 Hillcrest Drive is in keeping with the dwellings proposed and is indicative of the eclectic neighbourhood and character within.
66Mr. Malfara having seen the draft conditions provided by the Town and Region in the event the Tribunal grants the consent and approves the variances, opined that they are appropriate and should be included as conditions of approval for the appeals before the Tribunal.
DECISION
67The Tribunal finds that the neighbourhood delineation provided by Mr. Bhatt is supported by the evidence heard and submitted for these proceedings.
68The Tribunal having heard from the Appellant and considering the perspective provided of a resident impacted by the proposal finds that the opinions and views provided by the Appellant were lacking in evidentiary support there of.
69The Tribunal finds that the expert land-use evidence provided by Mr. Bhatt and Mr. Malfara was as submitted by Mr. Kehar generally uncontroverted and supports the position that the consent and variances sought should be approved.
70The Tribunal having considered the as-of-right conditions of the Subject Lands, the diverse zoning and building typology as well as the massing that is seen within the neighbourhood finds that the proposal is compatible with the neighbourhood. It is persuaded as provided by the Applicant that the proposal can co-exist harmoniously with no negative impacts in this already eclectic neighbourhood.
71The Tribunal is persuaded that the evidence supports, as provided by Messer’s Bhatt and Malfara, that Interim Control By-law No. 7700-20 recently imposed by the Town, is not enforceable or relevant to the appeals before the Tribunal and thus of no consequence to the proposal.
72The Tribunal is persuaded by the expert opinions of Messer’s Bhatt and Malfara and finds that the consent and variances have regard to s. 2 of the Act as required. They are consistent with the PPS and conform to the GP and both the Regional and Town OPs. The consent satisfies all applicable criteria set out in s. 51(24) of the Act and the variances satisfy and maintain the four tests set out in s. 45(1) of the Act, and in doing so represent good land-use planning in the public interest.
ORDER
73THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order.
74THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 2585 are authorized subject to the conditions set out in Attachment 1 to this Order.
75This is the Order of the Tribunal.
“M. Russo”
M. RUSSO
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.