Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 21, 2021
CASE NO(S).: PL200581
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Corene Jonat and Grant Leclerc
Subject: Application amend Zoning By-law No. 216-2009 - Refusal of Application by Municipality of Chatham-Kent
Existing Zoning: Residential Low Density First - Estate (RL 1-E) and Agricultural (A1)
Proposed Zoning: Site Specific (To be determined)
Purpose: To convert the existing single detached dwelling structure to contain four (4) separate dwelling units
Property Address/Description: 875 Charing Cross Road
Municipality: Municipality of Chatham-Kent
Municipality File No.: D-14 C/41/20/L
LPAT Case No.: PL200581
LPAT File No.: PL200581
LPAT Case Name: Jonat v. Chatham-Kent (Municipality)
Heard: July 12, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Corene Jonat and Grant Leclerc
Paula Lombardi
Municipality of Chatham-Kent
David Taylor
John Meko
Self-represented
DECISION DELIVERED BY S. BRAUN AND C. HARDY AND ORDER OF THE TRIBUNAL
INTRODUCTION, SITE CONTEXT AND PROPOSAL
1The matter before the Tribunal is an appeal under s. 34(11) of the Planning Act1 (“Act”) against a refusal by the Municipality of Chatham-Kent (“Municipality”) of an application for a Zoning By-law Amendment (“ZBLA”) filed by Grant Leclerc and Corene Jonat (“Appellants”) in respect of the property located at 875 Charing Cross Road (“subject property”).
2The subject property is approximately 3.0 acres in size with a large single detached 2.5 storey dwelling situated on 1/3 of the lot at the front, a detached garage capable of accommodating three bays located on the north side of the lot and an approximately 1.5 acre wooded area to the rear. The subject property is fully serviced with municipal water and sanitary sewage and has a “U-shaped” driveway providing two access points onto Charing Cross Road, which is an open public municipal road.
3The majority of the area surrounding the subject property contains single family dwellings. To the north is a single detached dwelling, to the east are agricultural lands and to the south and west are single detached dwellings.
4The subject property is currently zoned Residential Low Density – Estate (RL1-E), with the woodlot portion being zoned Agriculture (A1). The Appellants propose to convert the existing 2.5 storey single detached dwelling into a four-unit dwelling. There are no proposed changes to the footprint of the existing dwelling nor are there any substantial changes proposed for the exterior thereof. The Appellants further propose to convert the entirety of the existing detached garage into a single dwelling unit, for a total of five units on the subject property. In addition, it is proposed that the woodlot be rezoned to Open Space (OS-1) in order to preserve existing natural heritage features.
5At the outset of the hearing, the Appellant requested an amendment to the wording of the ZBLA before the Tribunal (Exhibit 1, Tab 7) to more accurately reflect the proposal and provide further clarification with respect to the intended uses. With the consent of the Municipality and John Meko (who resides at 868 Charing Cross Road and had earlier been added as a party to the appeal), the following amendment (denoted in bold text) to the proposed ZBLA was made:
Notwithstanding any other provision of the by-law to the contrary, the permitted uses also include:
Four (4) dwelling units in a Converted Dwelling
One (1) Secondary Dwelling in a building ancillary to a permitted use.
ISSUES AND THE PARTIES’ POSITIONS
6In deciding the present appeal, the Tribunal must have regard to matters of provincial interest set out in s. 2 of the Act and must be satisfied that the proposed ZBLA permitting the proposed development, is consistent with the Provincial Policy Statement (2020) ("PPS"), conforms to the Chatham-Kent Official Plan ("OP") and overall, represents good planning in the public interest. In addition, the Tribunal must have regard to the decision of the Municipality and the information it considered in the course of making that decision.
7Counsel for the Appellants submitted the proposed converted dwelling, ancillary dwelling and rezoning of the woodlot represent an appropriate use of the subject property, are consistent with the PPS and are in conformity with the OP. Counsel for the Appellants further submitted the proposed ZBLA appropriately regulates the form of development in accordance with comprehensive zoning by-law sections 4.5 (Converted Dwellings); 4.7 (Dwelling Units) and 5.22 (Open Space) and the subject property will be protected from flooding hazards in accordance with regulations of the Lower Thames Valley Conservation Authority (“LTVCA”).
8Counsel for the Municipality submitted that, although the proposed rezoning of the woodlot to Open Space is something the Municipality supports, the balance of the application is not in conformity with OP policies. He argued that the intensification proposed is incompatible with the existing character of the neighbourhood and the ancillary dwelling proposed does not conform to OP policy 2.3.4.2.18, which permits a dwelling ancillary to a single/semi-detached dwelling or a townhouse, but not to a converted dwelling.
9Mr. Meko urged the Tribunal to dismiss the appeal in submissions that largely echoed those of the Municipality. He additionally noted that he and a number of other residents specifically chose to live in the area because of the relatively large, private, well-maintained estate properties and, as such, are opposed to intensification within this neighbourhood. He also raised concerns about privacy impacts associated with the proposed development and the potential for the introduction of rental housing in the area to negatively impact property values.
THE HEARING
10In support of the ZBLA and proposed development, the Appellants called William Pol, who was qualified without objection to provide independent expert opinion evidence in land use planning. The Appellants also called a professional engineer, Yung-Chieh (Chet) Liu, who was qualified without objection to provide independent expert opinion evidence on the Province’s Building and Fire Codes and in the field of engineering in relation to the proposed development.
11Although the Municipality and Mr. Meko challenged Mr. Pol’s evidence through cross-examination, neither party called any land use planning or other evidence in support of their positions. Neither the Municipality nor Mr. Meko challenged the evidence provided by Mr. Liu.
Planning Evidence
12The Tribunal was provided with a planning justification report in relation to the proposal, authored by David French of Storey Samways Planning Ltd. (“French Report”, Exhibit 1, Tab 11) as well as a report authored by the Manager of Planning Services for the Municipality, Ryan Jacques (“Jacques Report”, Exhibit 1, Tab 9) which recommended Council approve and implement the proposed ZBLA. Both reports included detailed analyses of the proposal having regard to Provincial and Municipal policies. Both reports concluded that the proposed development is appropriate, compatible with the nature and character of the neighbourhood, consistent with PPS polices, conforms to OP policies and otherwise complies with the provisions of the comprehensive zoning by-law, representing good planning.
13Mr. Pol’s testimony was squarely in agreement with the opinions provided in the aforementioned reports. He reviewed applicable sections of the PPS and in particular, noted policies speaking to healthy, liveable and safe communities (1.1.1); settlement areas (1.1.3); housing (1.4); long term economic prosperity (1.7); long term protection of natural features (2.1); and protecting against natural flooding hazards (3.1).
14Mr. Pol also reviewed applicable sections of the OP, drawing the Tribunal’s attention to policies which encourage a diverse range of housing types, tenures and densities (s. 2.3.4.1.1) and policies speaking to intensification and infill, including s. 2.3.4.2.4 which sets a residential intensification target of 10% within built portions of Primary Urban Centres and allows for redevelopment of existing residential uses (s. 2.3.4.2.4 c). Mr. Pol drew attention to the allowance of intensification in all areas designated for urban residential use, provided the development is consistent with policies of the appropriate land-use designation associated with the land and in compliance with the general intent and purpose of the Zoning By-law (s. 2.3.4.2.5). In particular, Mr. Pol noted that the development be compatible with existing development standards and the physical character of adjacent properties and the surrounding area, respecting and reinforcing the physical characteristics of buildings within the existing neighbourhood (s. 2.3.4.2.5 f).
15Counsel for the Municipality argued that the preservation of the existing large estate lot and relatively large single-family dwelling represents a housing form and choice in a municipality with relatively few of same, thereby contributing to a mix of available housing options. Mr. Pol noted that in this particular area, there are a number of large estate lots like the subject property and opined that the conversion of one would not substantially change the number available in the Municipality. Mr. Pol further explained that PPS and OP policies encouraging a mix of housing types and tenures are designed to meet the diverse needs of the population, including those who prefer to rent or who cannot afford to purchase, the elderly, those seeking to downsize, etc. He opined that the proposed development will contribute to a mix of housing options currently lacking in the area with the introduction of two alternative forms – one unit in an ancillary building and four units in a converted dwelling.
16Mr. Pol further opined that the existing large single-family dwelling on the subject property (approximately 6,000 square feet) is no longer appropriate for the current housing market, whereas using the property in the manner proposed is responsive to dynamic market needs in the area. Moreover, he testified that the addition of multiple units will contribute to the Municipality’s intensification target as set out in the OP.
17In Mr. Pol’s opinion, the proposed development represents an efficient use of land in a Settlement Area identified by the Municipality as suitable for intensification. The subject property has ample space for parking and stormwater management; sufficient water and sewage servicing; and access to an arterial road capable of accommodating increased vehicular traffic.
18Mr. Pol testified that retaining the existing built forms and maintaining the deep landscaped use at the front of the subject property will ensure the character of the surrounding neighbourhood is not adversely impacted as a result of the proposed conversions.
19With respect to the portion of the proposal that would convert the existing detached garage into a single dwelling unit, Mr. Pol drew the Tribunal’s attention to s. 2.3.4.2.18 of the OP, which states:
2.3.4.2.18 An accessory residential dwelling unit will be defined as a separate and complete dwelling unit that is contained within the structure of a single detached residential dwelling, semi-detached dwelling or townhouse dwelling; or as a separate and complete dwelling unit contained within a building or structure ancillary to a single detached residential dwelling, semi-detached residential dwelling or townhouse dwelling…
20Mr. Pol acknowledged the argument raised by counsel for the Municipality, that the wording of the foregoing policy does not include permission for the proposed addition of the ancillary unit to a converted dwelling. However, he opined that the general intent and purpose of this policy is maintained, as there will be no change to the location and form of either building. He further opined that, given the extraordinarily large size of the property, the off-site impact of the secondary dwelling would be the same whether the existing single detached dwelling remained a single-family dwelling or was converted into a multi-unit dwelling, as proposed. He also testified that the proposal conformed to the balance of the criteria set out in s. 2.3.4.2.18 (a) to (f).
21Moreover, Mr. Pol pointed out that, in reviewing the application, Municipal staff specifically considered the proposal against the OP, did not require an OP amendment for a secondary dwelling and ultimately recommended approval of the proposed ZBLA.
22Mr. Pol reviewed applicable portions of the comprehensive zoning by-law including s. 4.5 (Converted Dwellings), concluding the proposed converted dwelling meets the requirements of same. In particular, Mr. Pol noted that the existing dwelling was built in the 1930s, there is no exterior alteration or increase in size proposed thereto; setbacks are to be maintained; an engineering evaluation found it to be structurally sound; there are to be no units in the cellar; minimum floor areas and ceiling heights will be exceeded; the number of units permitted and maximum lot coverage will not be exceeded; and there are to be no unenclosed stairways on the outside of the building.
23Mr. Pol similarly opined that the proposed ancillary dwelling met the requirements of s. 4.7 (Dwelling Units). In particular, he noted in s. 4.7.5 (Dwellings, Secondary) that there are sufficient water and sanitary services and room for parking; and the ancillary structure is appropriately located.
24Finally, Mr. Pol noted the woodlot on the subject property is currently in a potential development zone and the proposed rezoning to Open Space is consistent with PPS and OP policies which speak to protecting existing forested areas and natural heritage features. He further noted that, as the woodlot is intended to be protected from future development and there are no accessory buildings to be constructed thereon, the proposal complies with s. 5.22 of the comprehensive zoning by-law, which only permits conservation uses and buildings or structures accessory to permitted conservation uses.
25With respect to concerns raised by the public in advance of Council’s decision to refuse the ZBLA and those raised by Mr. Meko at this hearing, Mr. Pol indicated that he had reviewed and considered same, but these did not lead him to change his land use planning opinion. While he acknowledged the existence of a petition opposing the development signed by approximately 1,700 individuals, he testified that he placed more weight on the 12 letters written by members of the public outlining specific concerns in relation to the application.
26Mr. Pol also clearly indicated that he did not support the notes of Council in its reasons for refusing the ZBLA (Exhibit 1, Tab 5), which largely echoed the concerns raised by the public – intensification proposed is incompatible with the existing built characteristics of the area; negative impacts with respect to privacy, property values, heritage value; and a lack of public consultation in the planning process.
27Mr. Pol testified that, in his view, the proposal’s maintenance of the existing structures and the unique architecture of the home as well as the maintenance of existing setbacks and mature vegetation actually serve to reinforce the character of the surrounding neighbourhood. He also noted that there seemed to be some confusion with respect to whether the subject property was designated Estate in the OP and whether there were heritage values that required protection and clarified that there are no such designations, but that natural heritage features would be protected with the rezoning of the woodlot to Open Space.
28In response to the opposition to intensification in this neighbourhood, Mr. Pol opined that the subject property is currently under-utilized, located in a Primary Urban Centre, that the PPS and OP encourage intensification in appropriate areas with sufficient servicing, adequate access to parking, etc. and concluded that the intensification proposed is appropriate for this property and this area.
29With respect to concerns raised as to privacy, Mr. Pol noted there would be no changes to the buildings and therefore no impacts in terms of privacy. Notwithstanding the foregoing, he noted that, were there to be a need for additional fencing or screening, this could be addressed at the site plan stage.
30Mr. Pol also responded to the concern raised regarding the potential for an impact on housing values. He testified that this did not form part of his opinion, as land use planning decisions cannot be made based on property valuation or impacts thereto.
31Finally, Mr. Pol testified that the planning process followed all mandatory requirements of the Act, including the holding of a statutory public meeting which was done by video, as well as the receipt and consideration of public comments on the proposal.
Engineering Evidence
32With respect to compliance with Provincial Building and Fire Code requirements, as well as LTCVA regulations respecting floodproofing, Mr. Liu testified that the regulations of the LTVCA had been met and a permit had been issued, which is a prerequisite for an application for a building permit in the Municipality. It was his evidence that modifications would be made to the single detached dwelling and the existing garage in accordance with the LTVCA flood requirements including, but not limited to: raising window sills near grade, and constructing new flooring in the garage. Based on the foregoing, in his professional opinion as an engineer, the proposed development presents no flooding concerns.
33Mr. Liu further testified that he had no concerns in relation to the proposal’s compliance with the Provincial Building and Fire Code requirements. He explained each unit would have its own entrance and the proposed building designs complied with minimum square footages for bedrooms and living areas, as well as the provision of windows and natural light.
34The Tribunal accepted the uncontested and unchallenged evidence of Mr. Liu and is satisfied that the subject property will be protected from flooding hazards in accordance with LTVCA regulations and will meet all Provincial Building and Fire code requirements.
CONCLUSION
35The Tribunal carefully considered the issues raised by the Municipality and Mr. Meko and the totality of the planning and engineering evidence supportive of the ZBLA and the development it will permit, as put forward by the Appellants.
36Regard has been given to matters of provincial interest set out in s. 2 of the Act, as well as to the decision of the Municipality and the information it considered when making its decision. However, based on the uncontroverted evidence of Messrs. Pol and Liu and the documentary evidence including the French Report and the Jacques Report, the Tribunal finds the ZBLA should be approved, as it is consistent with the PPS, conforms to the OP and overall, represents good planning in the public interest.
37The Tribunal accepts Mr. Pol’s opinion that an OP amendment is not required in relation to the ancillary dwelling unit, as the general intent and purpose of OP (s. 2.3.4.2.18) is maintained by the proposal and notes the Jacques Report, which recommended Council approve the application, concluded the proposal was in conformity with OP policies. Moreover, the Tribunal notes the Municipality’s reasons for refusal did not address this particular policy or identify a need for an OP amendment in relation to the proposed ancillary dwelling.
38There are to be no changes to the footprints of the buildings, no changes to setbacks, no significant changes to the exterior of the existing single detached dwelling and no changes to the existing mature landscaping on the lot. Based on the foregoing, Mr. Pol opined, and the Tribunal concurs, the proposal is an “efficient, adaptive reuse” of both of buildings and “an almost invisible form of intensification” in keeping with the existing character of the neighbourhood and in particular, the similar large estate dwellings along Charing Cross Road.
ORDER
39The Tribunal allows the appeal and approves the proposed Zoning By-law Amendment, subject to the following revision:
Notwithstanding any other provision of the by-law to the contrary, the permitted uses also include:
Four (4) dwelling units in a Converted Dwelling
One (1) Secondary Dwelling in a building ancillary to a permitted use.
“S. Braun”
S. BRAUN
MEMBER
“C. Hardy”
C. HARDY
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.
Footnotes
- R.S.O. 1990, c. P. 13, as amended.