Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 20, 2021
CASE NO(S).: PL200519
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Vincent Cryne
Applicant: Reaching Our Outdoor Friends (Kitchener)
Subject: Minor Variance
Variance from By-law No.: 85-1
Property Address/Description: 35 Sheldon Avenue North
Municipality: City of Kitchener
Municipal File No.: A 2020-061
LPAT Case No.: PL200519
LPAT File No.: PL200519
LPAT Case Name: Cryne v. Kitchener (City)
Heard: April 6, 2021 via video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Vincent Cryne (“Appellant”) | Steven Ross |
| Reaching Our Outdoor Friends (Kitchener) (“Applicant”) | Alex Ciccone |
| City of Kitchener (“City”) | Lesley MacDonald |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON APRIL 6, 2021 AND ORDER OF THE TRIBUNAL
1This was scheduled as a first Case Management Conference (“CMC”). On or about March 25, 2021 counsel for the Applicant with consent of the parties informed the Tribunal that a settlement has been reached. The parties requested that the first CMC be converted to a settlement hearing and this request was granted by the Tribunal.
2The Subject Property is located at 35 Sheldon Avenue North. The Subject Property is 2,345 square metres (0.58 acres) in area and contains a single detached dwelling that has been converted to a residential care facility. There is a holding provision which permits only a single detached dwelling, duplex, multiple dwelling, lodging house having less than nine residents, residential care facility having less than nine residents, home business and private home daycare.
3The Subject Property is zoned Medium Intensity Mixed Use Corridor (MU-2) in the City of Kitchener Zoning By-law 85-1. The Applicant received approval from the City’s Committee of Adjustment (“COA”) for minor variances to City By-law No. 85-1. The variances approved by the COA were as follows with respect to the City’s Zoning By-law No. 85-1:
a. Relief from Section 54.2.1 to permit a maximum front yard setback of 34.3 metres whereas the maximum is 7.5 metres is required;
b. Relief from Section 54.2.1 to permit a Floor Space Ratio (“FSR”) of 0.75 whereas a minimum of 1.0 is required;
c. Relief from Section 54.2.1 to permit dwelling units on the ground of a residential care facility;
d. Relief from Section 6.1.2.a to permit a residential care facility to have five parking spaces whereas six is required; and,
e. Relief from Section 15 of Appendix F to permit a residential care facility with more than nine residents without consolidating with properties fronting onto King Street.
As part of the settlement, the parties requested a minor change with respect to the FSR to be set at a minimum of 0.5 versus 0.75 approved by the COA.
WITNESS
4Hugh Handy, a professional land use planner provided a sworn affidavit and oral testimony at the hearing.
EVIDENCE AND ANALYSIS
5In the context of the Planning Act (“Act”), Mr. Handy opined that the proposed minor variance has regard for the Provincial interest per section 2 of the Act. He added that the Minor Variance will facilitate the construction of supportive housing that will provide educational and social services to at-risk youth. It is appropriately located close to public transit, commercial uses, parks, and community facilities. Mr. Handy further testified that the proposed development is appropriately scaled at three storeys to be compatible with existing built-form and will be situated in the rear yard to mitigate any impacts to the existing streetscape or the heritage elements related to observing the house or front yard.
6Mr. Handy testified that the requested minor variances will allow for development which is consistent with the policies set out in the Provincial Policy Statement 2020 (“PPS 2020”). He cited sections 1.1.1 (a), (b,) (c) and (e) as well as 1.1.3.2 and 1.4.3. The proposal will facilitate the appropriate range and mix of housing. He testified that the proposed development will efficiently utilize available land, municipal services and infrastructure. Mr. Handy opined that the proposal is thus consistent with PPS 2020.
7Mr. Handy reviewed appropriate sections of the Growth Plan for Greater Golden Horseshoe 2020 (the “Growth Plan”). Mr. Handy opined that the proposal conforms with the Growth Plan and specifically applicable policies 1.1., 2.1., 2.2, 2.2.1(4), 2.2.2(3) and 2.2.6(1). In his evidence Mr. Handy highlighted that the proposal will provide for needed supportive housing in the form of accommodation for youth-at-risk in the community. The proposal being in the built-up area of the City will contribute towards meeting intensification targets.
8Mr. Handy reviewed the Regional Municipality of Waterloo Official Plan 2015 (“ROP”) and opined that the proposal conforms with it. Mr. Handy testified that the proposal specifically conforms with sections 2.D.1, 3.A.2, 3.A.3, 3.A.9 and 3.A.10. These sections direct for intensification, use of existing municipal infrastructure, and creation of complete communities. Mr. Handy added that the settlement affirms that the development proposal will meet ROP objectives for conserving natural heritage resources, and respect for the scale and physical character of the surrounding neighbourhood.
9The four tests required per section 45(1) of the Act are whether the minor variances:
a. Maintain the general intent and purpose of the Official Plan (“OP”);
b. Maintain the general intent and purpose of the Zoning By-law;
c. Are desirable for the appropriate use of the land, building or structure; and
d. Are minor in nature.
10Mr. Handy opined that the minor variances maintain the general intent and purpose of the OP as theses enable the implementation of proposed development that conforms with the OP. In particular the provision of a broad range and mix of uses in an area of high density and activity with available municipal services and infrastructure.
11Mr. Handy opined that the minor variances maintain the general intent and purpose of the City’s Zoning By-law No. 85-1. He stated that the increased setback will allow development in the rear of an existing building and maintaining symmetry across the site and other buildings, the reduced FSR of 0.5 will help maintain the essence of cultural heritage of the subject property, the requested dwelling units at ground level will appropriately provide pedestrian access, the requested parking reduction is appropriate with the facility’s planning model as support staff will be the primary users of parking, and the variance from Section 15 of Appendix F to permit a residential care facility preceding the ongoing development of facilities facing King Street will not hinder the intent to develop all properties jointly with focus on accessibility generally from King Street .
12Mr. Handy opined that the variances are desirable for the appropriate development of the underutilized lands.
13Mr. Handy opined that the variances are minor individually and collectively given the modest and cultural heritage preserving development that these will enable.
14In consideration of the COA approval, all the evidence on the record and the unopposed and uncontroverted expert opinion evidence of Mr. Handy, the Tribunal finds that the requested variances meet the statutory tests and have regard for section 2 of the Act, are consistent with PPS 2020 and conform with the Growth Plan.
ORDER
15The Tribunal allows the appeal in part and authorizes the following variances to City of Kitchener Zoning By-law No. 85-1 subject to the conditions set out in Attachment 1:
a. Relief from Section 54.2.1 to permit a maximum front yard setback of 34.3 metres whereas the maximum is 7.5 metres is required;
b. Relief from Section 54.2.1 to permit a Floor Space Ration of 0.50 whereas a minimum of 1.0 is required;
c. Relief from Section 54.2.1 to permit dwelling units on the ground of a residential care facility;
d. Relief from Section 6.1.2.a to permit a residential care facility to have five parking spaces whereas six is required; and,
e. Relief from Section 15 of Appendix F to permit a residential care facility with more than 9 residents without consolidating with properties fronting onto King Street.
16Should any difficulties arise in implementing this order, the Tribunal may be approached.
“Jatinder Bhullar”
JATINDER BHULLAR
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
CONDITION OF MINOR VARIANCES APPROVAL
That prior to building permit issuance for the Subject Property, the Applicant obtain site plan approval.