Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 07, 2021

CASE NO(S).: PL170443

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

Applicant and Appellant: Richard Lee & Holly Wilkes Lee Subject: Consent Property Address/Description: 770 Gorham Street/ Part Block A, Plan 127 Municipality: Town of Newmarket Municipal File No.: D10-B03-16 OMB Case No.: PL170443 OMB File No.: PL170443 OMB Case Name: Lee v. Newmarket (Town)

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

Applicant and Appellant: Richard Lee & Holly Wilkes Lee Subject: Minor Variance Variance from By-law No.: 2010-40, as amended Property Address/Description: 770 Gorham Street/ Part Block A, Plan 127 Municipality: Town of Newmarket Municipal File No.: D13-A18-16 OMB Case No.: PL170443 OMB File No.: PL170444

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

Applicant and Appellant: Richard Lee & Holly Wilkes Lee Subject: Minor Variance Variance from By-law No.: 2010-40, as amended Property Address/Description: 770 Gorham Street/ Part Block A, Plan 127 Municipality: Town of Newmarket Municipal File No.: D13-A19-16 OMB Case No.: PL170443 OMB File No.: PL170445

Heard: June 16, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Seyed Ehsan Velayati Hosseini	Amber Stewart
Town of Newmarket	Paul Voorn
Joyce Robinson	No one appeared

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JUNE 16, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Seyed Ehsan Velayati Hosseini (“Applicant”) of 770 Gorham Street (“Subject Property”) in the Town of Newmarket (“Town”) has, as subsequent owner, assumed an application for consent (by the previous owners, Richard and Holly Lee) to sever the Subject Property into two lots. The Committee of Adjustment (“COA”) denied the application on March 15, 2017 (“Refusal”).

2The Applicant appealed the COA’s Refusal to the Tribunal.

3The proposed severance under the application was for the Subject Property to be severed into two lots. The purpose of the consent application is for the creation of a new dwelling lot and to retain the retained lot for residential purposes. Minor variances are required for both the existing structure on the retained lot and the proposed structure on the severed lot.

4The reliefs sought under Zoning By-law No. 2010-40 (“ZBL”) are:

For the severed lot:

1. An easterly side yard setback of 1.27 metres (“m”) whereas the by-law requires 1.8 m.

2. A westerly side yard setback of 1.5 m whereas the by-law requires 1.8 m.

3. A minimum lot frontage of 12.19 m for the property whereas the by-law requires a minimum lot frontage of 15 m.

For the retained lot:

4. A westerly side yard setback of 1.04 m for the existing dwelling whereas the by-law requires 1.5 m.

5The Subject Property is approximately 1,527.94 square metres (“m²”) in area, with 31.39 m of frontage and an approximate lot depth of 48.7 m. It is located at 770 Gorham Street on the south side of the street and east of Prospect Street. There is an existing 1.5 storey single detached brick house located on the easterly portion of the Subject Property, with a swimming pool in the rear. The Subject Property was previously listed on the Town’s Municipal Register of Non-Designated Properties as a property with potential heritage value. The Subject Property is not designated under Part IV or Part V of the Ontario Heritage Act.

6In order to retain the existing dwelling with potential heritage value on the Subject Property, the consent and variances are requested. The initial proposal to the COA involved the severance of the land into two parcels: the new lot (Lot A) is proposed to have a frontage of 12.19 m and a lot area of 593.43 m², and the retained lot (Lot B) would have a frontage of 19.2 m and a lot area of 934.51 m². The severance was constituted as proposed in order to facilitate the retention of the existing dwelling.

7Counsel noted that the Party, Joyce Robinson has withdrawn her participation and the Participants, Patricia Hildreth as well as Vicki and Guy Laforge did not appear. The Parties informed the Tribunal that the applications and the matter have been resolved. The Tribunal noted that some changes were made to the variances sought. After reviewing the changes, the Tribunal is of the opinion that pursuant to s. 45(18.1) and s. 45(18.1.1) of the Planning Act (“Act”), the changes requested are minor and no further notice is required.

8The hearing proceeded with the Applicant’s counsel Ms. Stewart calling the Applicant’s witness Jonathan Benczkowski, a Registered Professional Planner. The Tribunal qualified him as a Land Use Planning expert to give his expert opinion evidence.

9Ms. Stewart requested the following be marked: Document Book (Exhibit 1); Additional Official Plan Extract (Exhibit 1A); Affidavit of Mr. Benczkowski (Exhibit 2); Minutes of Settlement (Exhibit 3); Separate Set of Annotated Plans (Exhibit 4) and Separate List of Variances and Conditions (Exhibit 5). Mr. Voorn, the Town’s counsel confirmed that the consent to sever and the variances are approved by the Town subject to conditions relating to the respective applications contained in Exhibit 5, which are to be imposed in the event that the Tribunal approves the applications. The appeal thus proceeded unopposed with uncontroverted evidence presented by the expert.

ISSUE

10The issue before the Tribunal is whether the severance of the Subject Property with the creation of two lots as applied for in the consent to sever land application meets the general requirements set out in the applicable provincial planning legislation, municipal planning policies, the specific criteria of s. 51(24) of the Act and represents good planning. The proposed severance must meet the requirements of the applicable policies of the official plans and zoning by-laws.

11The Tribunal shall also have regard to matters of Provincial interest and to information and material that the COA considered in making its decision.

12An applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, 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.

EVIDENCE AND ANALYSIS

13Mr. Benczkowski provided his view on the applicable policy framework and his land use planning opinion in relation to the proposed severance and the conditions. He reviewed the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”).

14In his opinion, the proposed severance meets the criteria under s. 51(24) of the Act governing severances. It conforms to the official plan, is consistent with the PPS and conforms to the Growth Plan by facilitating a new housing lot in a stable neighbourhood that is served by existing infrastructure.

15The variances (to facilitate reduced side yard setbacks and lot frontage for the new lot and to accommodate the retention of the existing dwelling with potential heritage value for the retained lot) meet the four tests for minor variances under the Act. The proposed development as facilitated by the variances is desirable, minor, meets the general intent and purpose of the official plan and zoning, and is consistent/conforms with provincial policy, represents good planning, and warrants the Tribunal’s approval.

16In his opinion, the proposed development as facilitated by the consent represents good planning, and merits approval by the Tribunal.

17The Tribunal finds that the proposed development, as facilitated by the proposed severance and variances, is consistent with the PPS. It will facilitate modest intensification within an existing settlement area, in an area that is well served by existing infrastructure, in a manner that has regard for the surrounding context. The policy thrust of the PPS is to promote the wise management of change through efficient land use and development patterns. The proposal achieves the intent of the PPS, including Policy 1.1.1 that directs healthy, liveable and safe communities sustained through: (a) the promotion of efficient development and land use patterns, and (b) accommodating an appropriate affordable and market-based range and mix of residential types. The inclusion of market-based housing emphasizes the importance of facilitating all new housing development, not merely affordable housing.

18Mr. Benczkowski’s opinion is that the proposed development, as facilitated by the proposed severance and variances, conforms to the Growth Plan. Policy 2.2.2.3 provides for a range of intensification throughout delineated built up areas. Municipalities are required to develop a strategy to achieve the minimum intensification targets, to which the proposal would modestly contribute, but also to encourage intensification generally throughout the delineated built-up area. This policy supports the facilitation of modest intensification opportunities where they can be accommodated as on the Subject Property. He stated that the consent represents good planning and meets the criteria under the Act.

19In his opinion, no plan of subdivision is required where a plan of subdivision is not necessary for proper and orderly development. The proposed lots and road widening have been appropriately illustrated on the plans.

20Section 51(24) of the Act denotes several criteria. The relevant criteria (a) to (k) are met according to Mr. Benczkowski and he provided his opinion on the respective criteria that are met.

21The proposed development creates an additional lot which is consistent with the existing lotting pattern and zoning of the neighbourhood. This facilitates small scale intensification. The proposed severance facilitates a built form that is well designed on a site that has existing municipal services and infrastructure.

22Mr. Benczkowski stated that the Subject Property is located within the Urban Area of Newmarket. The policies applicable to the Urban Areas generally support the achievement of complete communities through intensification while still maintaining their character. Like the provincial policy framework, the York Region Official Plan is implemented through the Town’s Official Plan (“OP”).

23The proposed variances, in his opinion, meet the general intent and purpose of the Town’s OP. The OP designates the Subject Property Stable Residential on Schedule A which permits detached single-family dwellings within the designation. Section 3.0 sets out the policies applicable to the Residential Areas. The overall intent of the Stable Residential Areas is to protect their stability and ensure that new development is compatible with the existing character of the neighbourhood.

24The Tribunal agrees with Mr. Benczkowski that the Stable Residential Areas policies are set out in section 3.2. The intent of policy 3.2.1 has been addressed through the series of design iterations which culminated in a built form design that is characteristic of existing dwellings in the neighbourhood by providing for a low scale design with a pitched roof and dormers, reflective of the existing one to two-storey homes in the neighbourhood. The proposed dwelling will sustain and enhance the character and identity of this existing residential community. The proposed dwelling of the new lot has been moved in line with the adjacent dwelling and will not overwhelm the adjacent dwelling or the existing dwelling on the retained lot.

25Policy 3.2.1 (b) encourages the preservation and maintenance of the existing housing stock, supplemented by various forms of residential intensification such as infilling. The site development achieves both objectives; the existing dwelling with potential heritage value has been preserved and maintained through a high-quality and extensive interior renovation to restore the dwelling to new condition. The proposal is an ideal opportunity to infill the vacant portion of the existing lot with a compatible new house that will protect and enhance the character of the neighbourhood. Policy 3.9 sets out the permitted forms of intensification within Stable Residential Areas, including infill units through the creation of new lots consistent with the size and form of housing in the neighbourhood as a whole.

26The Tribunal finds that section 3 of the OP provides a list of criteria for development within the Stable Residential neighbourhood. Specifically that development in this neighbourhood will respect and reinforce the existing physical character of the stable residential area including prevailing patterns of yard setbacks, frontage and lotting pattern. The proposed variances are in keeping with this neighbourhood area. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the OP.

27Mr. Benczkowski stated that under the ZBL, the Subject Property is zoned R1-D. This permits residential detached dwellings on lots with a minimum frontage of 15 m and a minimum lot area of 511 m². The proposed lots will be compliant with the minimum lot area, both pre- and post-road widening conveyance to the Town. The severed lot after the conveyance will be approximately 552 m². The retained lot exceeds the lot frontage requirements by 4.2 m.

28His opinion is that the overall intent of the ZBL is to implement development that is compatible for the neighbourhood. With respect to the retained lot, the only variance required is to permit a new westerly side yard setback of 1.04 m at the rear of the dwelling, expanding to 1.23 m at the front corner of the dwelling. The R1-D zoning permits a varied side yard setback depending on building height: 1.2 m for a one-storey, 1.5 m for a 1.5-storey, and 1.8 m for a two-storey dwelling. This framework anticipates a range of side yard setbacks, which is consistent with the existing physical character of the neighbourhood. He said that many existing dwellings were built prior to the zoning and have side yards that would not comply with the zone standards.

29Mr. Benczkowski stated that the proposed reduction is a modest reduction that will be imperceptible from the street, particularly given the generous front yard setback of the existing dwelling of 17.31 m, and the generous east side yard setback of 7.53 m at the front portion of the dwelling. The proposed side yard setback is adequate to provide for access to the rear of the lot, and appropriate visual separation between dwellings.

30With respect to the new lot, Mr. Benczkowski stated that the intent of the lot frontage standard is to facilitate adequate and appropriate lots that are compatible with the physical context of a site. The proposed lot frontage is compatible and maintains the intent and purpose of the zoning. The shifting of the building footprint to the south provides for substantial separation of the proposed dwelling from the street of 13.3 m, and from the lot line post-conveyance of 10.05 m. This building separation will enhance the visual open space at the front of the lot, decreasing the perception of a modest reduction in frontage.

31The proposed side yards setbacks are also generous given the building scale and massing. The required setbacks are based on the dwelling being a two-storey home, but the revised built-form reflects the massing of a 1.5-storey home (which would permit a 1.5 m side yard). The westerly side yard is generally compliant with the 1.8 m requirement, with only a small projection setback at 1.5 m. The projection does not extend above the ground floor. The easterly side yard is 1.27 m, which is a modest reduction that still maintains appropriate spatial separation.

32In Mr. Benczkowski’s opinion, the proposed variances individually and cumulatively maintain the general intent and purpose of the zoning by-law. The Tribunal finds that the zone permits the residential use. This development has taken into consideration the concerns of planning staff, in particular, the perceived three storey height and massing that was in the original design. The revised plan and design subsequently incorporated elements that meld with the topographical contours of the Subject Property to reduce the height and massing effect to that which is compatible to a two-storey and a 1.5-storey. The built form design was brought in line with the design guidelines suggested. This area contains a range of lot frontages ranging from 7.22 m to 35.29 m. The two proposed lots of 12.19 m and 19.2 m frontages are compatible with those in this area. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the zoning by law.

33In Mr. Benczkowski’s opinion, the side yard setback and frontage variances are desirable for the appropriate development of the subject site and the area. The variances will facilitate the creation of a new residential lot in the neighbourhood, which will create more housing in a well serviced area. The Tribunal finds that the creation of two lots is a desired outcome that enhances the residential stock in this Stable Residential neighbourhood. The retained lot will contain the structurally and internally improved existing dwelling while the severed lot will contain a new dwelling that will be compliant with zoning standards and compatible in built-form with the existing surroundings. This modest intensification of the Subject Property that will take advantage of the municipal infrastructure and services will be a welcome addition in the residential community. The Tribunal is satisfied that the proposed development is desirable for the appropriate development of the Subject Property.

34The proposed variances are technical in nature, given that it does not result from any physical changes on the Subject Property and merely reflects a new lot line between the lots. Visually, the reduced side yards setbacks will have no effect on the openness of the area (particularly when viewed from the street) given that the Subject Property is a larger lot (1,527.94 m²) which is suitable for the proposed severance. The retained lot is of an appropriate size to accommodate the existing dwelling which has been preserved with its potential heritage value, as the severance was designed to avoid splitting the existing dwelling. With the generous front yard’s setbacks, the open spaces on the retained and severed lot are compatible with the streetscape. The side yard setbacks are sufficient to avoid any privacy or overlook issues. There are no perceived adverse impacts that can affect the public realm or adjacent properties. The Tribunal is thus satisfied that the variances are minor in nature.

35The Tribunal is satisfied that the proposed variances at the Subject Property has regard for the matters of provincial interest as set out in s. 2 of the Act in particular 2(h) the orderly development of safe and healthy communities, 2(j) on the provision of a range of housing and 2(r) on the promotion of built form that is well-designed.

36The Tribunal has reviewed the original application and the documents filed in the appeals, the Municipal records, the Minutes of COA decision and the Conditions of approval pertaining to consent application.

37Upon the unopposed planning evidence provided by Mr. Benczkowski, the Tribunal finds that the consent application meets the criteria in s. 51(24) of the Act and has regard for Provincial interests.

38In summary, the Tribunal finds that the consent to sever land application is consistent with the policies of the PPS, conforms with the policies of the Growth Plan, maintains the general intent and purpose of the Official Plan and the ZBL, represents good planning and in the public interest. Accordingly, the Tribunal will authorize the consent to sever the Subject Property into two lots as proposed subject to conditions of approval.

39In respect of the Conditions, having considered the uncontradicted evidence of Mr. Benczkowski, the Tribunal accepts that the Conditions are reasonable as they apply to the respective applications. The Tribunal will impose these conditions for the approval of the proposed severance and the variances.

ORDER

40The applications having been amended from the original applications and as determined under s. 45(18.1.1) of the Planning Act, the amendments are minor, no further notice is required.

41The Tribunal orders that the Applicant’s appeal is allowed and provisional consent to sever land is granted subject to the Conditions attached as Attachment 1 to this order.

42The Tribunal orders that the variances to Zoning By-law No. 2010-40 are authorized subject to the Conditions attached as Attachment 1 to this Order.

“T.F. Ng”

T.F. NG

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.

PL170443 – Attachment 1

List of Variances – 770 Gorham Street (Part A)

REQUESTED VARIANCES TO THE ZONING BY-LAW:

By-law No. 2010 – 40

1. Minimum side yard setback is 1.8 m Proposed minimum westerly side yard setback is 1.5 m

2. Minimum side yard setback is 1.8 m Proposed minimum easterly side yard setback is 1.27 m

3. Minimum lot frontage is 15 m Proposed lot frontage is 12.19 m

List of Variances – 770 Gorham Street (Part B)

REQUESTED VARIANCES TO THE ZONING BY-LAW:

By-law No. 2010 – 40

1. Minimum side yard setback is 1.5 m Proposed minimum westerly side yard setback is 1.04 m

Conditions of Consent Approval:

The owner shall satisfy the following conditions:

1. That the owner obtain relief from the provisions of the zoning by-law for reduced lot frontage as set forth in Minor Variance Applications D13-A18-16 and D13-A19-16 as revised by the Owner after commencement of the appeal and as contained in the drawings submitted to the Town on December 11, 2017;

2. That the Owner shall obtain municipal servicing for both lots independently prior to any building permit at his own cost;

3. That the Owner provide to the satisfaction of the Secretary-Treasurer of the Committee of Adjustment the following:

a. proof of payment of all outstanding taxes and local improvement charges owing to date against the subject, and retained parcels;

b. three white prints of a deposited reference plan showing the subject land, which conforms substantially to the application as submitted;

c. required transfers to effect the severance and conveyance applied for under Consent Application D10-B03-16, conveying the subject lands, and issuance by the Secretary-Treasurer of the certificate required under subsection 53(42) of the Planning Act; and,

d. submission of an appraisal report prepared by a member of the Appraisal Institute of Canada respecting the new lot and payment of cash-in-lieu of parkland as required by the Town’s Parkland Dedication By-law;

4. That the Owner enter into a Site Plan Agreement with the Town for the future development of the lands;

5. That the Owner be advised that compliance will be required with the provisions of the Town’s Tree Preservation, Protection, Replacement and Enhancement Policy;

6. That the Owner pay all applicable Town fees and charges associated with a Site Plan Agreement and related development;

7. That the Owner grant to the Town at no cost a 3.33 metre road widening across the frontage of the subject and remaining lands; and

8. That the development be substantially in accordance with the Site Plan and Elevations and the architectural drawings as revised by the owner and submitted to the Town on December 11, 2017.

Conditions of Minor Variance Applications D13-A18-16 and D13-A19-16:

1. That the variances pertain only to the requests as were amended by the Owner after the OMB appeal was commenced, as contained in the drawings submitted to the Town on December 11, 2017.

2. The concrete window well that is shown on the west basement wall on Plans A.04, A.09, and A.11 shall be removed from any plans submitted as part of the site plan approval and building permit applications.