Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 17, 2021

CASE NO(S).: PL200363

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: George Bowa

Subject: By-law No. 206-2020

Municipality: Township of Lucan Biddulph

LPAT Case No.: PL200363

LPAT File No.: PL200363

LPAT Case Name: Bowa v. Lucan Biddulph (Township)

Heard: June 24, 2021 by video hearing

APPEARANCES:

Parties Counsel

George Bowa Jeffrey Hewitt

Township of Lucan Biddulph Analee Baroudi

Brock Development Group Inc. Analee Baroudi

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

1The appeal before the Tribunal is brought pursuant to s. 34(19) of the Planning Act¹ (“Act”) by George Bowa (“Appellant”), in relation to the decision of the Township of Lucan Biddulph (“Township”) to approve a Zoning By-law Amendment (“ZBLA”) permitting the redevelopment of lands described as Block 29, Plan of Subdivision 33M-759 (“subject property”).

2The application originally before the Township sought to increase the maximum building height on the subject property from 12.0 metres (“m”) to 17.5 m in order permit the construction of a five-storey building.

3A July 10, 2020 planning report (“Staff Report”, Exhibit 1, Tab 3), authored by Dan Fitzgerald, Planner for the County of Middlesex, recommended Council refuse the application. Public comments raised concerns over potential adverse impacts in terms of shadowing; increased traffic; decreased property values and loss of privacy.

4Notwithstanding the foregoing, Council approved the application, permitting a height increase to 17.5 m, but modified the ZBLA requiring the building be constructed in accordance with the conceptual plan and rendering submitted to the Township.

5Following the appeal of Council’s decision and discussions with the Appellant, the Applicant submitted a revised proposal which, inter alia, reduced the height of the building from 17.5 m and five storeys to 15.5 m and four storeys. On April 20th, 2021, Council endorsed same.

6The ZBLA currently before the Tribunal would increase the maximum building height on the subject property from 12.0 m to 15.5 m; restrict the number of storeys to four; increase side and rear yard setbacks; introduce a maximum density regulation not currently stipulated in the R3 zone; increase separation distance and landscape buffering requirements between the parking lot and residential lot lines; and require the building to be constructed in accordance with the revised conceptual plan and rendering submitted to the Township.

SITE CONTEXT

7The subject property is located approximately 20 minutes north of the City of London at 33318 Richmond Street/Highway 4, which is an arterial roadway. It is a serviced parcel of land approximately 1.08 hectares (“ha”) in size and is part of the Lucan Estates subdivision, currently under development. It is within a Settlement Area, as designated in the County of Middlesex Official Plan (“COP”), is designated “Residential” in the Township of Lucan Biddulph Official Plan (“TOP”) and is currently zoned Residential Third Density Exception – Holding (R3-8-H), which permits apartments, townhouses and multiple unit dwellings, with the exception allowing for a height of 12.0 m rather than the standard 10.0 m maximum height in the R-3 zone.

8To the north and east of the subject property are single detached dwellings, either newly constructed or under construction. To the south and west are existing single detached dwellings. Approximately 250 m to the northwest are offices and commercial uses, including a convenience store, gas station, Tim Horton’s restaurant, a dental office and wellness centre.

LEGISLATIVE FRAMEWORK

9In making a decision on the ZBLA presently before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the COP as well as the TOP. In general, the Tribunal must be satisfied that the proposed development, as it will be permitted by the ZBLA, represents good planning and is in the public interest.

10In addition, the Tribunal must have regard to the matters of Provincial interest enumerated in s. 2 of the Act and, in accordance with s. 2.1(1), must have regard to the decision made by the Township, including any information that was considered in the course of making that decision.

11In this instance, the arguments at the hearing focused primarily upon the TOP, and in particular, the following sections:

2.1.5.1 (Land Use) Within areas designated ‘Residential’ on Schedule “A”, the primary use of land shall be for single unit detached dwellings. Other dwelling types are also permitted including semi-detached dwellings, duplex dwellings, converted dwellings, accessory apartments, townhouses and low-rise and small-scale apartment buildings…;

2.1.5.2 (Scale, Density and Form) The scale, density and form of new residential development shall respect and be sensitive to the ‘small town’ character of the Village. At the same time, it is recognized that multiple forms of residential development will provide the potential for more affordable housing as well as housing more able to meet the increasingly diverse needs and preferences of the community. To ensure compatibility with existing development, the density and height of new residential development will be limited; and

2.1.5.5 (Medium Density Housing) Medium density residential development in the form of townhouses, apartments and other forms of multiple unit housing shall be encouraged to locate where direct or proximate access to arterial or collector roads is available; where proximity exists to commercial areas, schools, and/or parks and open space; and where municipal services are available or capable of being made available. Intrusions into existing residential areas of predominantly single unit dwellings shall be discouraged and compatibility with the character and design of neighbouring development expected. Appropriate buffering and setbacks shall be provided where necessary to ensure compatibility. Standards regarding housing types, density, height, parking and landscaped open space shall be addressed in the Zoning By-law. Site plan control shall apply.

THE HEARING

12The parties agreed that an apartment building was always planned to be developed on, and is an appropriate use of, the subject property. At issue is whether the proposed building at a height of 15.5 m, is respectful of and sensitive to the small-town character of Lucan and is compatible with existing development, as required by the TOP. The term “small town character” is not defined in the TOP and the parties’ differing interpretations thereof lie at the heart of the dispute.

13The Appellant, Mr. Bowa, lives on Spencer Avenue, one of the streets backing onto the subject property. He testified that he moved to Lucan in 2019, drawn there by its “quintessential small-town feel”, noting his ability to walk around the entire town in a single afternoon. For the purposes of this appeal, it was submitted that the Tribunal must look at “small town character” based on what currently exists and Mr. Bowa noted there are currently no residential buildings in excess of three storeys or 12.0 m.

14Mr. Bowa relied, in part, upon a Staff Report (Exhibit 1, Tab 3) authored by Dan Fitzgerald in relation to the application. While Mr. Fitzgerald acknowledged the subject property is appropriate for intensified residential development given its proximity to a higher order road and the existence of appropriate servicing, he nevertheless recommended Council deny the application, stating:

…the Township Official Plan requires development in the form of apartments to be low rise and small scale, respecting the established ‘small town’ character of Lucan interpreted as a maximum of 12.0m or 3 storeys.

15Counsel for the Appellant submitted that the foregoing, in addition to a previous Tribunal decision in Hamilton v. Township of Lucan Biddulph (Township), [2014] O.M.B.D. No. 857, are instructive in terms of how to interpret “small town character” for the purposes of the TOP. In Hamilton, the Proponent sought a site-specific increase in permitted height from 10.0 m to 12.0 m to allow for the construction of a three-storey building. Vice-Chair Stefanko found the Proponent’s confirmation that the building would not exceed three storeys ameliorated the argument that the development was not respectful of and sensitive to the small town character of Lucan, specifying in his order that any building on that particular site would be limited to three storeys.

16On the basis of the foregoing, it was argued that a 15.5 m apartment on the subject property would be neither compatible with the surrounding single-family dwellings, nor respectful of and sensitive to Lucan’s “small town character” and therefore not in conformity with the TOP. It was submitted that, should the Township wish to increase the height limit of apartments, it must update the TOP as it relates to “small town character”.

17The Township and Applicant took the opposite view, arguing that compatibility with existing development and respect for and sensitivity to small town character do not equate to a duplication of what currently exists.

18It was further argued that proposed ZBLA must be considered as a whole package and not simply as a request for an increase in height, as it also limits the number of storeys to a maximum of four; substantially increases side/rear yard setbacks as well as separation and buffering between existing lot lines and planned parking; and introduces a maximum density for the site.

19It was noted that the current Zoning By-law (“ZBL”) does not regulate the number of storeys or allowable density on the site and as-of-right (“AOR”), the apartment could be built to a height of 12.0 m and four storeys, sited as close as 3.0 m to the lots north and east and 10.0 m to the lots west of the subject property.

20Ultimately, the Township and Applicant submitted that any potential negative impacts associated with the proposed height of the building would be appropriately mitigated by the balance of the provisions in the ZBLA, so as to achieve compatibility with existing development in the surrounding area.

21With respect to the interpretation of small-town character and respect for/sensitivity to same, Counsel for the Township and Applicant noted that, despite the absence of any residential buildings in excess of three storeys in the area, the TOP in describing the character of the community makes specific reference to the existence of multiple-unit dwellings scattered throughout the area ranging from one to five storeys. In addition, the Tribunal’s attention was drawn to a recent (October 2020) approval for the construction of two 14.6 m, four-storey residential buildings elsewhere in Lucan which was supported by the Township’s planning advisors.

22It was submitted, based on all the foregoing, that the interpretation of “small town character” and respect for/sensitivity to same should not be strictly interpreted as limiting buildings to 12.0 m or three storeys, as argued by the Appellant.

Planning Evidence

23The Tribunal heard from Tracey Pillon-Abbs on behalf of the Appellant and Richard Zelinka on behalf of the Township and Applicant. Both witnesses were qualified without objection to provide expert land use planning evidence in relation to the matter under appeal.

24Ms. Pillon-Abbs noted that both the PPS in s. 1.1.3.4 and the COP in s. 2.3.7 delegate the responsibility of setting appropriate standards for development to local municipalities. She drew the Tribunal’s attention to applicable sections of the TOP and ZBL which, in her view, define what is appropriate for this area.

25For example, s. 2.1.5.1 of the TOP requires apartments to be low rise and small scale and s. 2.1.5.2 requires the Township ensure new development is compatible with existing development by limiting the density and height thereof, while the ZBL specifies a maximum general height of 10.0m and site-specific exemptions allowing up to 12.0 m.

26She opined that, contrary to TOP policies, the proposed building at a height of 15.5 m is not low-rise and small scale and would be an improper intrusion as it pertains to existing development in the area, resulting in incompatibility. Further, a building of the proposed height would not be respectful of or sensitive to the small-town character of Lucan. She ultimately opined that, as a result of the proposal’s failure to conform to the TOP, it automatically fails to conform with the COP and is inconsistent with the PPS.

27In cross examination, Ms. Pillon-Abbs conceded that, in comparison to the original application the revised proposal, which sites the building farther away from neighbouring single detached dwellings and closer to Richmond Street/Highway 4, is less impactful upon and goes some way to ameliorating compatibility concerns vis a vis such dwellings.

28Nevertheless, she maintained her opinion that the proposed height would be an intrusion into the existing neighbourhood and moreover, because the subject property is located at the entrance or gateway to the Village of Lucan, siting a building of this height closer to the road would have a visual impact on the view and vista of the surrounding area, negatively impacting the small-town character of Lucan in general.

29Overall, Ms. Pillon-Abbs testified that, as the additional height proposed is incompatible with the neighbouring single detached dwellings and is not respectful of or sensitive to the small town character of Lucan, it does not conform to the TOP and does not represent good planning. She recommended that the apartment be limited to the maximum height of 12.0 m, as set out in the current ZBL.

30In contrast, Mr. Zelinka opined that the proposed development is consistent with the PPS, conforms to the COP and TOP and represents good land use planning in the public interest. In his view, despite the requested increase in height, the building would still be small scale and low rise, respectful of and sensitive to the small-town character of Lucan and compatible with existing development, contributing to goals within the COP, TOP and PPS of providing a mix of housing options to meet the needs of current and future residents.

31He provided a brief overview of the proposal and its consistency with the PPS, noting it is located in a Settlement Area where growth and development are to be focused; that it efficiently uses land, resources, and municipal services; and, while not intended to be “affordable housing” targeted to low income families, the development contributes to a mix of housing types, densities and tenures, accessible to lower and moderate income households in an area where there are few housing options beyond single detached dwellings.

32In addition, he provided a brief analysis of the proposal in relation to the COP noting, inter alia, its conformity with policies which encourage local municipalities to provide a balanced mix of housing in terms of type, size and tenure to meet projected demographic and market requirements and policies which speak to development being focused in areas with appropriate servicing, including water and sewage.

33With respect the interpretation of the term “small town character” for the purposes of the TOP, Mr. Zelinka opined the analysis extends beyond simply building height and encompasses, for example, the fact that the Township is surrounded by agricultural lands and retains a unique downtown Village core, as well as the irregular patterns of lots and streets resulting from the (now abandoned) railway line running through the area. He also referenced the nearby City of London, explaining that many buildings there are 8-12 storeys and opined that, in comparison, a 15.5 m four storey residential building would be considered low rise, small scale and characteristic of a small town.

34He noted that Lucan is a rapidly evolving community, citing the addition of 641 new residential units since 2013 and the expansion of recreational facilities to accommodate such growth. Notwithstanding the foregoing, he opined that Lucan remains a “small town”, but nevertheless one which the TOP explicitly recognizes is in need of housing options beyond single family dwellings, drawing the Tribunal’s attention to s. 2.1.5, which states:

While residential development has been traditionally and continues to be primarily in the form of low-density single unit detached dwellings thereby contributing to the ‘small town’ residential character of the Village, a demand exists for other housing types to meet the socio-economic needs of the community.

35With respect to height and whether the proposed increase would be respectful of and sensitive to Lucan’s “small town character”, Mr. Zelinka referenced s. 2.1 of the TOP, and in particular, the following excerpts:

The Village is by far the largest settlement of the Township…Given it’s proximity to the City of London and other employment centres, the Village has assumed a dormitory role offering affordable housing and relatively good accessibility…The largest portion of the Village’s land base is devoted to residential development, generally surrounding the downtown core. Single unit dwellings constitute the predominant housing type. A small number of multiple unit dwellings are scattered throughout the urban area, ranging from one to five storeys in height.

36He testified that, to his knowledge, there are currently no five storey multiple unit dwellings in Lucan, but he considered it significant that the TOP describes the community in those terms, opining that rather than interpreting this statement to be an error in the TOP, it should be interpreted as a general indicator of what the “small town character” of Lucan can include - buildings ranging from one to five storeys.

37For further comparison and context, he drew the Tribunal’s attention to buildings in Lucan which, in his opinion, “read” like 3.5 and four storeys, including a church and a heritage building, as well as other built forms in excess of five storeys, such as a water tower, silos and a large grain elevator operation. Although not residential, his point was that these built forms mean there is familiarity with height in the community, such that the proposed building would not be out of character in this small town.

38Whereas Ms. Pillon-Abbs opined siting the building closer to the road would negatively affect the small town character of the area, Mr. Zelinka testified the building is more appropriately sited closer to the road in accordance with current urban design practice, which seeks to activate public spaces and encourage active transportation and public transit. He specifically referred the Tribunal to s. 2.3.4 of the COP, which speaks to the promotion of a high standard of urban design to create healthy communities which attract investment.

39Moreover, he testified that siting the building closer to the road would dramatically improve the interface in relation to the neighbouring dwellings in terms of compatibility. He testified that a 15.5 m apartment built in accordance with the increased separation and buffering provisions of the proposed ZBLA would be less visible from, and less impactful upon, neighbouring single detached dwellings with respect to privacy, overlook and shadowing in comparison to a 12.0 m high, four-storey apartment built in accordance with current AOR zoning. Based on the foregoing, he opined that the building would not be an intrusion on existing development in the area.

40Finally, Mr. Zelinka referenced Council’s October 2020 approval of a development application to construct two buildings at the opposite end of Lucan, noting that the planning advisor, Mr. Fitzgerald, supported that application as being respectful of and sensitive to small town character, despite an increase in height from 12.0 m to 14.6 m and from three to four storeys.

ANALYSIS AND FINDINGS

41In his written closing submissions, Mr. Bowa urged the Tribunal not to consider Mr. Zelinka’s evidence. Among other things, he called the Tribunal’s attention to a statement made by Mr. Zelinka that the Applicant wished to build the proposed development for marketplace reasons, suggesting Mr. Zelinka was advocating for the Appellant. Mr. Bowa further noted that Mr. Zelinka made reference to various policy statements speaking to affordable housing for lower and moderate-income households, while refusing to admit that the proposed development will not, in fact, be affordable. In the Appellant’s view, Mr. Zelinka’s evidence was disingenuous and demonstrated a bias on behalf of the Applicant.

42The Tribunal, however, found Mr. Zelinka’s evidence to be forthright and unbiased. He testified matter-of-factly that the building is not intended to be low-income housing, but rather a housing type and tenure currently lacking in the area, built to meet current market demands of those who cannot afford to (or choose not to) purchase single family dwellings, but nevertheless wish to live in a building with contemporary design and amenities located in a small community.

43In fact, on the whole, the Tribunal preferred the evidence of Mr. Zelinka and was persuaded that the proposed building will be compatible with existing development. The Tribunal notes that the July 2020 Staff Report (supra) relied upon by Mr. Bowa related to the original proposal, which only sought an increase in height. That report makes specific mention of a lack of additional buffering and setback standards which could lead to an undesirable transition between the subject lands and the adjacent low-density single unit dwellings.

44The Tribunal was persuaded that the revised proposal now before it, which includes increased buffering, setbacks, etc., appropriately mitigates potential impacts associated with the requested increase in height so as to achieve the compatibility required by the TOP and further, that siting the building closer to the road is appropriate in accordance with urban design practices and COP goals.

45Notwithstanding the absence of existing residential buildings in excess of three storeys, the Tribunal agrees with Mr. Zelinka, that compatibility with what exists and respect for/sensitivity to small town character does not require new development to be the same. The Tribunal further agrees that there are a number of features and factors beyond height which contribute to the small town character of Lucan, including the surrounding agricultural lands, the unique downtown core and the presence of distinct built forms within the Village that are often characteristic of rural areas, such as a water tower, grain elevator and silos. These structures, albeit not residential, exceed the height increase sought for this building and as such, the Tribunal is of the view that the proposed height increase will not be out of character.

46While the Tribunal recognizes the earlier decision in Hamilton (supra) and the Appellant’s argument that the three-storey limit discussed therein is instructive to the interpretation of small town character, it is noteworthy that the decision is from 2014 and since that time, the community has expanded significantly with the construction of hundreds of new residential units.

47The Tribunal also recognizes the more recent statement of Mr. Fitzgerald in the July 2020 Staff Report (supra) that small town character is interpreted as 12.0 m or three storeys. Nevertheless, the Tribunal considers it significant that the TOP, in describing the character of the area, references the existence of buildings up to five storeys, and agrees with Mr. Zelinka, that this is not to be interpreted as an error, but rather a statement of what can exist and fit into this small town.

48As such, the Tribunal does not accept the Appellant’s submission that if the Township wishes to allow apartments in excess of 3 storeys/12.0 m, it must update the TOP and was not persuaded that a four storey 15.5 m building would be an intrusion or disrespectful of/insensitive to the small-town character of the area.

49Finally, a great deal of argument was devoted to the October 2020 approval by Council (and planning staff’s recommendation in support of same) of a site-specific height increase to construct two 14.6 m, four-storey buildings at the opposite end of Lucan. Counsel for the Appellant argued that this was not a proper comparison to justify a height increase on the subject property, given the substantially different site characteristics of each. The Tribunal agrees. Nevertheless, the foregoing appears to run contrary to the Appellant’s argument that small-town character is to be strictly interpreted so as to limit buildings to three storeys or 12.0 m.

CONCLUSION

50The Tribunal finds that the proposed apartment is a low rise, small scale development, respectful of and sensitive to the small-town character of the area and that the provisions of the ZBLA, including increased setbacks and buffering, mitigate potential negative impacts upon, and render the proposal compatible with, neighbouring properties.

51The Tribunal further finds the proposal has regard to the matters of Provincial interest in s. 2 of the Act, is consistent with the PPS and conforms to both the COP and TOP. It represents an efficient use of land and infrastructure in an appropriate location for growth and development, which contributes to the Township’s ability to offer a mix of housing options to existing and future residents, a goal that is clearly encouraged in all of the aforementioned planning documents. Overall, the proposed ZBLA and the development it permits represent good planning in the public interest.

ORDER

52THE TRIBUNAL ORDERS that the appeal against By-law No. 206-2020 of the Township of Lucan Biddulph is allowed in part, and By-law No. 100-2003 is amended as set out in Attachment 1 to this order. In all other respects, the Tribunal orders that the appeal is dismissed.

“S. Braun”

S. BRAUN 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1R.S.O. 1990, C. P. 13, AS AMENDED.```