Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 16, 2022
CASE NO(S).: OLT-21-001742
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Joshani Homes Ltd.
Subject: Application to amend the Zoning By-law – Refusal of the City of Pickering
Description: To permit a residential development consisting of 4 semi-detached dwelling units
Reference Number: A 03/19
Property Address: 375 Rosebank Road (375 Rosebank Road)
Municipality/UT: Pickering/Durham
OLT Case No: OLT-21-001742
OLT Case Name: Joshani Homes Ltd. v Pickering (City)
Heard: September 14 to September 16, 2022 by video hearing
APPEARANCES:
Parties Joshani Homes Ltd.
Counsel Gerard Borean
Parties City of Pickering
Counsel Mark Joblin Alyssa Granato
DECISION DELIVERED T.F. NG AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Joshani Homes Ltd. (“Applicant/Appellant”) is the owner of part of Lot 72 Plan 418 (now Part 2, 40R – 30097) (“subject property/subject lands/site”), in the City of Pickering (“City”). The Applicant applied for a Zoning By-law Amendment (“ZBA”) to Zoning By-law No. 2511(as amended). To permit an infill residential development consisting of four (4) two (2)-storeys semi-detached dwelling units fronting onto the future southerly extension of Dunn Crescent. Dunn Crescent is proposed to be extended 22.9 metres (“m”) south ending at a turning circle at the south end of the subject property.
2The new residential lots will be created through the land severance process in the Region of Durham Land Division.
3The City Council (“the Council”) denied the application to amend the Zoning By-law on October 25, 2021. The Applicant appealed the Council’s rejection.
ISSUES
4The issues for the Tribunal are:
Does the proposed zoning by-law amendment conform to the City of Pickering Official Plan that guides land use and development in the municipality, including sections 3.2(e), 3.9(c)(i), 6.5, and the Rosebank Neighbourhood policy in section 12.3(d)?
Is the proposed built form of the proposed semi-detached dwellings appropriate for the site and does it provide adequate transition and are the semi-detached dwellings compatible with the character of (a) the immediate area and (b) the wider neighbourhood?
POLICY FRAMEWORK
5Pursuant to s. 2 of the Planning Act (“Act”), the Tribunal shall have regard to matters of provincial interest, and s. 3(5) of the Act requires the Tribunal to ensure its decisions are consistent with the Provincial Policy Statement 2020 (“PPS”) and conform with any applicable Provincial Plans in effect.
HEARING
6On September 14, 2022, Dianne Seeley and Stephanie Hoffe (both having previously filed participant status requests) were granted participant status without objections. The Tribunal noted Mr. Borean’s (Applicant’s counsel) remark that Ms. Hoffe was participating on behalf of her mother. That brought the number of participants to three, including John Lambert, granted status at the last Case Management Conference. The participants’ concerns were generally on matters of the development being an over intensification. It will create new zoning standards, have impacts on adjacent properties, such as stormwater and drainage matters. There will be traffic and vehicular movement, safety, community character and quality of life issues. Billy Tung addressed these concerns in his testimony.
7The appeal was heard over three days. Mr. Borean called Mr. Tung, a Registered Land Use Planner, who was qualified by the Tribunal to give expert opinion on land use planning matters. Counsel for the City, Mr. Joblin, called David Waters, a Registered Land Use Planner. The Tribunal qualified Mr. Waters to give expert opinion on land use planning matters on behalf of the City.
8The Application is addressed in the context of the Act; the PPS 2020; the Growth Plan for the Greater Golden Horseshoe 2019 (GP); the Region of Durham Official Plan (“ROP”); and the City Official Plan (“COP”).
SITE CONTEXT
9The subject lands are legally described as Part of Lot 72, Plan 418 (now Part 2, 40R- 30097) and currently has no assigned municipal address.
10The subject lands are located at the south end of Dunn Crescent and was created as a severed parcel from 375 Rosebank Road in 2018 through approved Land Division Application (LO 089/17).
11The subject lands have an area of approximately 2,181 square metres (“sq m”) and approximately 21 m of frontage along the end of Dunn Crescent.
12Immediately to the north of the subject lands is the existing end of Dunn Crescent with a pair of semi-detached dwellings on the east side of the street located at 629 and 631 Dunn Crescent. To the west side of Dunn Crescent, fronting on Nomad Road is a single detached dwelling located at 595 Nomad Road and a pair of below grade linked semi-detached dwellings located at 597 and 599 Nomad Road.
13To the west of the site is a single detached dwelling located at 375 Rosebank Road, which the subject lands were severed from as previously described.
14To the south of the site is the rear yard portion of 371 Rosebank Road, which contains an existing drainage ditch running south of the shared property line.
15To the east of the site is the Canadian National Railway corridor with Petticoat Creek Conservation Area beyond it.
PROPOSED DEVELOPMENT AND BACKGROUND
16The proposed development includes an extension of Dunn Crescent, terminating with a turning circle/cul-de-sac at the south end of the property. Four semidetached dwellings are proposed, two on each of the east and west sides of the culde-sac. The proposed lots will have lot frontages ranging from 10.71 m to 12.16 m.
17The proposed semi-detached dwellings are linked above grade, two-storeys and approximately 8.5 m in height. Two parking spaces will be provided for each dwelling, one space within a private garage and one on the driveway.
18The application before the Tribunal is a proposed ZBA to the City's Zoning By-law No. 2511, as amended. The purpose of this Amendment is to rezone the lands from "R4 - Fourth Density Zone" to "SD" Zone similar to the adjoining lands to the north with site-specific standards to permit the proposed development.
19The creation of the proposed public road extension and lots will be through a future land severance process with the Region of Durham Land Division Committee.
20The application for ZBA (A 03/19) was filed on January 18, 2019 and deemed completed on April 17, 2019.
21The City's Planning Staff prepared a recommendation report (PLN 38-21) for approval to the Planning and Development Committee dated October 4, 2021. The Planning and Development Committee approved the application on October 4, 2021 and the City Council subsequently overturned the recommendation and refused the application on October 25, 2021.
22An Agreed Statement of Facts had been produced to document the agreement reached between the Land Use Planning experts. This document was signed August 4, 2022 and is in Exhibit No.4. at Exhibit F.
Issue 1
23Mr. Tung, the Applicant’s planning witness stated that under Land Use Objectives, Policy 3.2e) reads:
City Council shall:
(e) while maintaining the character of stable residential neighbourhoods, increase the variety and intensity of land uses and activities in the urban area, particularly on lands designated Mixed Use Areas, and Employment Areas.
24This policy encourages land use change and intensification within the urban area, particularly in the designated Mixed Use and Employment Areas. This policy does not preclude change and redevelopment within existing residential neighbourhoods, as it states the objective is to maintain the character of stable residential neighbourhoods while doing so. This objective is further elaborated under Policy 3.9 c) i).
25The proposed ZBA would allow four new semi-detached dwellings on lands which the Official Plan permits such use and building form. In assessing the proposal against the established neighbourhoods character considerations under Policy 3.9 c) i), Mr. Tung is of the opinion that the proposed ZBA conforms with Policy 3.2 e) of the City's Official Plan.
26Under Urban Residential Areas, Policy 3.9c) i) reads:
City Council: (c) in establishing performance standards, restrictions and provisions for Urban Residential Areas, shall have particular regard to the following:
(i) protecting and enhancing the character of established neighbourhoods, considering such matters as building height, yard setback, lot coverage, access to sunlight, parking provisions and traffic implications.
27The proposed ZBA would permit semi-detached dwellings and sets out development standards. The character is established by the permissions in the Official Plan. The proposed semi-detached dwellings are permitted by the Official Plan in an area that also permits single detached dwellings. As such, the proposed amendment will implement a permitted use and dwelling form as intended by the Official Plan.
28Mr. Tung opined the proposed ZBA permission and standards will maintain the low-rise residential character of the Rosebank Neighbourhood. He reviewed the recommendation report to the Planning and Development Committee prepared by City Planning Staff which contains their assessment of the performance standards for the new lots compared with the performance standards for the City's Infill and Replacement Housing Zoning By-law (A 11/20). Staff concluded that the proposed development meets or exceeds the minimum zoning standards and is consistent with the recommended Official Plan policies for Infill Housing and that the zoning standards will ensure the overall scale and massing of the dwellings will be in keeping with the established building form within the neighbourhood. Staff were also of the opinion that the proposed overall height, massing and setbacks will not result in any further adverse impacts on the existing residents to the north with respect to shadowing, privacy and overlook than the current "R4" zoning permissions.
29In addition, the staff report includes an evaluation of the proposed zoning standards against the existing zoning standards of the "SD-B" Zone of By-law No. 2511 as amended by By-law No. 1849/84 that applies to the immediate dwellings along Nomad Road and Dunn Crescent. As demonstrated in their comparison table, the proposed zoning standards meet or are more restrictive than the immediate "SD-B" Zone. In particular, the maximum lot coverage and maximum building height are less than those permitted in the immediate area.
30Mr. Tung is in agreement with Planning staff’s opinion that the proposed ZBA and development would be in keeping with the low-rise residential character of the existing neighbourhood with respect to building height, setbacks, coverage and access to sunlight.
31Furthermore, the recommendation report also noted that City staff were satisfied with the proposed parking and expressed no concerns with traffic. As such, he believes matters related to the adequate provision of parking and traffic implication have also been satisfied.
32Given the above, Mr. Tung opined that the proposed ZBL and development conforms with the (“COP”) Policy 3.9 c) i).
33Under Rosebank Neighbourhood Policies, Policy 12.3 d) reads:
12.3 City Council shall:
d) for developments east of Rosebank Road and west of the C.N. rail line, permit a maximum of approximately 50 percent of the lots proposed for residential development to be used for semi-detached dwellings and require the remaining lots proposed to be used for single detached dwellings;
34This policy prescribes the mix of dwelling types within the residential area identified in Policy 12.3 d) within the Rosebank Neighbourhood that corresponds with the boundary of Design Precinct No. 3 under the Rosebank Neighbourhood Development Guidelines (“RNDG”). Mr. Tung prepared an analysis of the existing and proposed dwelling mix within the defined area. (Exhibit No.4 at Exhibit G).
35The source of the information is from the City's Development Portal.
36Mr. Tung assessed two scenarios: One that includes all proposed developments within the assessment area and a second that only accounts for the Joshani proposal. As demonstrated in the assessment, in both scenarios, the four proposed semi detached dwellings will not have a significant impact to the existing dwelling mix and will be well below the maximum allowable percentage of 50%. Given this assessment, Mr. Tung is of the opinion that the proposed ZBA conforms with this policy and this policy clearly intended for semi-detached and single detached dwelling types to coexist in a mixed fashion within the defined residential area east of Rosebank Road.
37Mr. Waters, the City’s Planning witness, explained that in January 2019 the Applicant submitted a rezoning application to rezone the subject lands from an R4 zone to a site specific SD zone to allow four semidetached dwellings fronting onto the future southerly extension of Dunn Crescent. Dunn Crescent is proposed by the Applicant to be extended approximately 22.9 m to the south, with a right-of-way width of 22 m and terminating with a turning circle. Further applications would be required for the proposed land division and road extension.
38On June 17, 2019 the rezoning application was presented at a statutory public meeting. Following the statutory public meeting, the Applicant revised the original proposal by undertaking the following design changes:
a. relocating the garage doors to abut the shared wall of each semi-detached dwelling and moving the front entrances to opposite sides of the main wall.
b. Increasing the minimum sideyard width from 1.25 metres to 2.4 metres by removing a basement walkout in the side yards; and,
c. Increasing the minimum side yard width on Lot 1 to 3.5 metres.
d. City Council initially approved the staff recommendation on October 4, 2021 and then voted to reconsider the October 4, 2021 recommendation and refused the application at the Council meeting of October 25, 2021.
39The Applicant appealed Council’s refusal of the rezoning amendment in November 2021 to the Tribunal.
40The subject lands are located in the Rosebank Neighbourhood in the City. The Rosebank Neighbourhood is bounded by the Rouge River, Highway 401, Petticoat Creek to the east across the Canadian National Railway line, and Lake Ontario.
41Initial housing development occurred between 1900 and 1940; more recent subdivision activity began in the 1970s.
42The subject lands are located at the south end of Dunn Crescent, east of Rosebank Road and south of Nomad Road. The subject lands have an area of approximately 2,000 sq m. with approximately 14 m of frontage along Dunn Crescent. The property is currently vacant and contains existing mature vegetation along the east property line and backs onto the CNR line.
43The site is relatively flat and vacant. According to the arborist report submitted with the rezoning application, the property contains 16 trees. Three trees are proposed to be removed. The Applicant is proposing to plant up to eight additional trees within the development limits as compensation for the removal of three trees. The compensation for removing the trees would be implemented by a condition of the Region’s Land Division Committee approval of the consent application to create the 4 semi-detached lots.
44The geographic neighbourhood is a quiet, suburban enclave with tree-lined streets on lots with extensive landscaping and large mature trees. Sidewalks are limited to one side of the street and many of the local roads like Dunn Crescent have no sidewalks.
45The existing built form in the neighbourhood can be further described as: a mix of 1, 1½, 2 and 2½ storey dwellings. The vast majority of the dwellings date from the original period of development commencing in the 1930s through to the 1960s. A recent approval was issued for two semi-detached units at the south end of Dunn Crescent on property previously owned by Canadian National Railway that was declared surplus. The Habitat for Humanity dwellings (habitat dwellings) do not include a garage and were designed to be affordable, are attached above grade and differ from the older semi-detached dwellings further up Dunn Crescent as these units are attached below grade and their massing is more aligned with the balance of the adjacent neighbourhood. Redevelopment within the neighbourhood has consisted of renovations, additions to existing dwellings and the replacement of older dwellings with new, larger more modern dwellings. These renovated and new dwellings at the south end of the neighbourhood have created an enclave of larger more modern homes when compared to the balance of the community to the north.
46Dwellings fronting individual street segments generally maintain a consistent front yard setback, massing and character.
47Mr. Waters agreed that what remains in issue following the Agreed Statement of Facts are sections 3.2 e), 3.9 c) i) and 12.3 d) of the City Official Plan. He stated that the provincial interest as stated in Section 2 (p) of the Planning Act and for local Councils to consider is the appropriate location of growth and development has been implemented in the COP by identifying appropriate locations for intensification and redevelopment. The subject lands are zoned R4 which permits single detached dwellings. In fact, the balance of the Rosebank Neighbourhood is zoned R4. The subject lands have not been designated in the Official Plan as a location for increased densities.
48The COP identifies locations across the municipality for housing intensification on Schedule I including the City Centre and Mixed Use Areas. For example, Section 3.2 (e) of the COP recognizes the need to maintain the character of stable residential neighbourhoods by increasing the variety and intensity of land uses and activities within the urban area on lands designated Mixed Use Areas, and Employment Areas.
49Under section 3.2, City Council shall:
(e) while maintaining the character of stable residential neighbourhoods, increase the variety and intensity of land uses and activities in the urban area, particularly on lands designated Mixed Use Areas, and Employment Areas;
50In Mr. Waters’ opinion, the draft zoning by-law conflicts with Section 3.2 e) by proposing to intensify the Rosebank community by adding four (4) semi-detached dwellings in an area where the dominant structural housing type is detached dwellings. The policy directs intensification be directed to designated Mixed Use Areas and Employment Areas rather than stable residential neighbourhoods like the Rosebank community. Therefore, he opined that the draft zoning by-law is in direct conflict with Section 3.2 (e) of the COP.
51Urban Residential Areas, section 3.9 City Council: (c) in establishing performance standards, restrictions and provisions for Urban Residential Areas, shall have particular regard to the following: (i) protecting and enhancing the character of established neighbourhoods, considering such matters as building height, yard setback, lot coverage, access to sunlight, parking provisions and traffic implications.
52The draft zoning by-law includes requirements to regulate the following: building height, lot frontage, lot area, side yard and rear yard depths, lot coverage, parking and driveway widths. The draft zoning by-law also includes standards to regulate porches, balconies and windows. The number of regulations in the draft zoning by-law demonstrates the degree of over regulation necessary for the semi-detached dwellings to fit into the existing character of the Rosebank community.
53Mr. Waters stated that section 6.5 of the COP speaks to where intensification opportunities can occur within the municipality. Section 6.5 does not identify the Rosebank neighbourhood, in particular the subject lands for intensification.
54In Section 6.5 - Infill, Intensification and Redevelopment, the following statement is made about intensification: “it provides an opportunity to both increase and diversify the housing stock in the City.” The section further states that almost all intensification activity occurring in Pickering over the next twenty years will be on those lands designated as Mixed Use Areas, not low density residential areas. Infilling occurs in low density areas on vacant or underutilized parcels of land. The effect of this will be to improve the level and range of services available to most residents, without changing the character of their neighbourhoods.”
55In Mr. Waters’ opinion, the reference to infilling is focused on new infill projects located with the Mixed Use designation of the Official Plan that have the greatest potential to increase the service levels of area residents as opposed to altering the character of the existing community through introducing new housing opportunities. The subject development of four (4) semi-detached units will not improve the level and range of services to area residents and in fact will result in the demand for increased services from new residents for waste pickup and snow removal which may be addressed to some degree by the new cul-de-sac which will need to be designed to municipal standards.
56He added that, as shown on Schedule I, and stated by Section 3.2 (e) and Section 6.5 of the COP and the existing R4 zoning, the subject lands have not been designated or zoned as a location for intensification or redevelopment as compared to other areas of the City that have been planned and/or identified to accommodate forecasted population growth as per the COP or the ROP.
57With regards to Neighbourhood policies of Chapter 12 for the Rosebank Neighborhood 1, the only relevant policy is clause 12.3(d).
58Mr. Waters said he reviewed the unit analysis prepared by KLM Planning (Mr. Tung’s firm) and he raises no issue with the data presented in the table. However, while there appears to be capacity in the geographic area for additional lots to be introduced for semi-detached dwellings, this specific policy is not all inclusive and must be considered together with other factors in the decision making process such as land use compatibility, public input. and Section 9.2 e) of the COP with regards to neighbourhood character.
59The Tribunal notes that Mr. Waters had in cross-examination conceded that there is no prohibition to increase the variety and intensity in the urban area, although he did say that the focus is on Mixed use and Employment areas.
60The words in a statute should be given its plain and ordinary meaning. Section 3.2(e) reads that city council shall “while maintaining the character of stable residential neighbourhoods, increase the variety and intensity of land uses and activities in the urban area…” It goes on to state “particularly on lands designated Mixed Use Areas, and Employment Areas”.
61If there is to be a limitation only to Mixed use areas or Employment areas, the language of limitation “only” or “exclusively” will be used instead of “particularly”.
62Mr. Waters in cross-examination, did admit that there is a direct reference to urban areas, and taking into consideration of an infill residential development such as this proposal, there is no prohibition of variety and intensification on the subject lands. The Tribunal agrees that change, development and redevelopment in an existing residential neighbourhood is not precluded so long as the character of the neighbourhood is maintained.
63This is supported when s. 3.9(c)(i) provides that city council in establishing performance standards etc. for urban residential areas, shall when protecting and enhancing the character of established neighbourhoods consider such matters as building height, yard setback, lot coverage, access to sunlight, parking and traffic implications.
64The Rosebank Neighbourhood is characterised by single detached dwellings and semi-detached dwellings. Buildings are low-rise and one to two stories high. Most semi-detached are attached below grade except for the two semi-detached of the habitat dwellings which are connected above grade. Nevertheless, the character of this neighbourhood is low-rise single detached and semi-detached dwellings of generally two storeys high.
65The Tribunal acknowledges that city staff had assessed and reported that the ZBA performance standards when compared with the City’s Infill and Replacement Housing Zoning By-law No. A 11/20, the proposed development meets or exceeds the minimum zoning standards and is consistent with the COP’s policies for infill housing. Staff concluded that the proposed overall height, massing and setbacks will not have adverse impacts such as privacy, shadowing and overlook on existing residents to the north of subject lands.
66The proposed zoning standards were evaluated against the SD-B Zone that applies to dwellings immediately along Nomad Road and Dunn Crescent. The comparison of the standards shows that the proposed ZBA standards meet and are more restrictive than the SD-B zone especially, the proposed maximum lot coverage and proposed maximum building height are lower than that of SD-B. As such, the Tribunal concurs that the ZBA and the proposal is in keeping with the area’s low-rise character as regards height, lot coverage, setbacks and minimal shadow impacts. Staff has no issue with parking provision or traffic concerns.
67Section 12.3(d) Rosebank Neighbourhood policy permits developments east of Rosebank Road and west of C.N. rail line a maximum of approximately 50% of lots proposed for residential development to be used for semi-detached dwellings, the remaining lots for single detached dwellings. The prescribed area corresponds with the Design Precinct 3 in the RNDG. Mr. Tung’s analysis of the dwelling mix in the defined area showed that the four proposed semi-detached have no significant impact on the allowable 50% in this area. The Tribunal agrees that the proposed ZBA conforms to this policy that intends a mix and coexistence of both the single detached and semi-detached dwellings here.
Issue 2
68As per the Agreed Statement of Facts, this Issue is scoped to the appropriateness of the built form as the density of the proposed development is agreed to be not at issue.
69Mr. Tung explained that as per the Agreed Statement of Facts: the immediate area includes lots along Nomad Road, Dunn Crescent, Kinton Court and lots along the east side of Rosebank Road south of 457 Rosebank Road to Rosebank South Park.
70This area consists of a mix of single detached dwellings and semi-detached dwellings that are linked below grade along Dunn Crescent and Nomad Road. There is one pair of semi-detached dwellings linked above grade immediately north of the subject lands, located at 629 and 631 Dunn Crescent (habitat dwellings).
71The wider neighbourhood is the area identified as Design Precinct No. 3 under the City's RNDG, which includes lands east of Rosebank Road and south of Rick Hull Memorial Park.
72This wider area also consists of a mix of single detached and below grade linked semi-detached dwellings.
73The Official Plan permits semi-detached and single detached dwellings within the immediate area and wider neighbourhood. The only prescriptive policy on semi-detached dwellings is the maximum unit mix under Policy 12.3 d).
74In addition, Policy 3.9 c) i) deals directly with protecting and enhancing the character of established neighbourhoods.
75The proposed ZBA provides development standards that meet or exceed the requirements set out by the City's approved Zoning requirements for Infill Housing and that of the existing zoning of the immediate area. As such, it is Mr. Tung’s opinion that the built form of the proposed semi-detached dwellings is appropriate for the site, that semi-detached dwellings adjacent to single detached dwellings result in an acceptable transition which is compatible with the existing low rise residential character of the neighbourhood.
76Furthermore, with respect to transition and compatibility with the character of the immediate and wider area, the context of the proposed development should be taken into consideration. The proposed development is located on a proposed extension of a portion of Dunn Crescent terminating in a cul-de-sac with no further connectivity for vehicles or pedestrians. There are currently three dwellings located on this stub end portion of Dunn Crescent. The proposed new lots being located on the east and west side of the proposed cul-de-sac along with the required setbacks would result in minor changes to the streetscape given that they will only be visible from oblique angles from the vicinity of the intersection of Dunn Crescent and Nomad Road or fully experienced from within the proposed cul-de-sac. In this context, the proposed development would not have a significant direct impact on the character of the immediate area as it would not be immediately visible to the majority of residents and visitors, being outside of the path of travel in and out of the neighbourhood. In the context of the wider neighbourhood area, exposure to or experiencing the proposed dwellings is even more remote.
77The proposed semi-detached dwellings on the east side of the cul-de-sac will be located next to an existing semi-detached dwelling on Dunn Crescent. The proposed semi-detached dwelling on the west side of the cul-de-sac will have a proposed side yard adjacent to the existing rear yard of the existing dwellings that front on the south side of Nomad Road. This relationship and interface between dwellings are common at many intersections and readily exist in the immediate area and the wider neighbourhood. As noted in the City's recommendation report, the proposed side yard setback for the lot abutting the existing lots to the north is greater than the requirement under the existing "R4" Zone as well as that required under the Infill Housing implementing Zoning By-law. The existing "R4" zone and the Infill Housing implementing Zoning By-law required a minimum side yard setback of 1.5 m whereas a minimum side yard setback of 3.5 m is proposed for the proposed westerly lot. This greater setback improves on an already appropriate setback requirement, providing a more than adequate transition to the existing lots.
78The proposed semi-detached dwellings are permitted together with single detached dwellings under the COP within the immediate and wider neighbourhood. It is acknowledged that the majority of the existing semi-detached dwellings are linked below grade which gives the appearance of smaller single-detached dwellings. The character of the immediate area and wider neighbourhood is that of a low-rise residential area. Mr. Tung is of the opinion that the proposed above grade linked semi-detached dwellings are compatible with the character of the immediate area and wider neighbourhood as the use and built form is consistent with the existing low-rise residential character.
79Given the above, he opined that the built form of the proposed semidetached dwellings is appropriate for the site, provide adequate transition and are compatible with the character of the immediate area and the wider neighbourhood.
80Mr. Waters opinion is that the proposed density and built form as prescribed by the zoning by-law will introduce four semi-detached dwellings that represent an overbuilding of the subject property with coverages that exceed the City’s guidelines for infill development. The massing of the semi-detached dwellings does not create an appropriate transition from the existing dwellings in the immediate neighbourhood due to the low profile rooflines and massing of adjacent dwellings that reflect the architectural style at the time of construction. The zoning of the subject property for two detached dwellings would create a better integration with the immediate area.
81Given that the subject property is located at the end of Dunn Crescent, the impact to the wider neighbourhood west of Rosebank Road is limited. However, for Mr. Waters, the residences most affected by the introduction of four (4) semi-detached dwellings are those located in the enclave to the north and west of the subject property east of Rosebank Road and south of Nomad Road.
82In his opinion, the proposed development represents over-intensification on a site that is too small and the zoning amendment does not prescribe adequate setbacks, buffering, amenity space or parking standards. The significant reduction of development regulations in the zoning amendment which are required to facilitate the proposal on the subject property and the failure to satisfy the COP policies result in a development application that is not consistent with the policy direction provided in the COP that implements the PPS and the Planning Act.
83Mr. Waters opined that the proposed development on the subject property is not appropriate and does not represent good planning given the location and context of the subject property in relation to the existing character of the community. The proposed ZBA to permit four semidetached dwellings, he said, should not be approved.
84The Tribunal prefers the opinion evidence of Mr. Tung (which withstood cross-examination), to that of Mr. Waters. Further Mr. Waters had admitted in cross-examination that the housing goal in s. 6.1 of the COP as to the broad diversity of housing, by form, location, size etc. is satisfied by the proposal. Mr. Waters also agreed that s.6.2(c) encourages the provision of an adequate range of housing tenure and types to be made available which this proposal achieves. When pressed, Mr. Waters admitted that the built form in this area is a mix of single detached and semi-detached housing forms.
85The Applicant obtained more concessions in cross-examination from Mr. Waters. He agreed that the intent of the policy in COP, s. 3.2(e) is to ensure an increase in variety and intensity of land uses in the urban area, as a general policy purpose. It does not prohibit intensification of infill residential neighbourhoods.
86Mr. Waters conceded that the development proposal pertains to an infill development of a vacant or underutilized block of land and fulfills the objective of s. 6.5(b) of the COP. He also admitted that on face value, the proposal meets the policy directive in s. 6(5)(d) of the provision of compact housing form with regards to housing type, architectural design and cost-effective development standards, whenever technically feasible. He admitted in cross-examination that he has no issues with garbage or snow removal vehicles accessibility, no technical issues and no density issue with the proposal.
ANALYSIS
87The Parties through the Agreed Statement of Facts had scoped the issues and are generally agreed that the proposal is consistent with the PPS and generally conforms to the GP and ROP. The disagreement is in the implementation of the proposal with respect to the built form and compliance with the particular policies of the COP expounded in the proceedings with respect to impact to the immediate neighbourhood and the wider neighbourhood.
88The Tribunal prefers the unshaken testimony and opinion evidence of Mr. Tung as compared to the testimony of Mr. Waters. Mr. Waters had in cross examination made several concessions and candid admissions (to his credit as an impartial expert) that, taken as a whole, the facts and evidence favours the approval of the proposed ZBA. The Tribunal’s reasons are as follow.
FINDINGS
89Sections 2(h) and (n) of the Act are applicable matters of provincial interest to which the Tribunal must have regard in this case. The application has regard for the matters in s. 2 of the Act in particular s. 2(h) the orderly development of safe and healthy communities; s. 2(p) the appropriate location of growth and development; and s. 2(r) the promotion of a built form that is well designed.
90The proposal is consistent with the PPS in particular s.1.1.3.3 as the subject site is a settlement urban area where appropriate redevelopment and intensification of the proposed semi-detached dwellings can be accommodated within this area of semi-detached dwellings and single detached dwellings. The proposal is in a residential area with suitable existing and planned public services infrastructure.
91The development conforms to the GP. It is in a settlement area that has existing or planned municipal water and wastewater systems and can support the achievement of complete communities (s. 2.2.1.2(a) (ii) (iii) of the GP). The four units of semi-detached dwellings will contribute to the province’s housing stock.
92The policy goals of the ROP in s.1.2.1(d) to establish a wide range of housing opportunities in urban areas for present and future residents and s. 1.2.1(e) to create healthy and complete, sustainable communities within livable urban environments for the enjoyment of present and future residents are met by this modest infill residential development on the subject property.
93The Tribunal finds that the character of the stable Rosebank Neighbourhood is maintained by the proposed ZBA. The proposed development is in a built form and typology that is currently widely existing in the immediate area and in the wider area as defined and agreed to by the parties. The immediate Nomad Road and Dunn Crescent area are a mix of single detached and semi-detached (attached below grade) dwellings. Similarly, the wider neighbourhood area of Design Precinct No.3 is constructed with single detached and semi-detached (attached below grade) dwellings. These buildings in these areas are 1 to 2.5 storeys high. There is no concern on transition as the proposed semi-detached dwellings are of equivalent height to the properties to the north which are singles and semis. The semi-detached forms are widespread in the neighbourhood. To the northeast of the proposed development are two recent semi-detached (habitat) dwellings joined above grade. In other words, the two-storeys semi-detached proposed are not out of character in the neighbourhood in this urban area. Section 3.2 (e) of the COP is complied with.
94The Tribunal is satisfied that the proposed zoning standards of the ZBA are commensurate with or in certain instances more restrictive than the SD-B zone standards. The proposal thus protects and enhances the character of the established Rosebank Neighbourhood as the proposed ZBA performance standards have proper consideration to building height, yard setbacks, lot coverage, access to sunlight, parking provisions and traffic implications (s. 3.9(c)(i) of the COP.
95Additionally, the Tribunal finds that this proposed modest infill residential development of four semi-detached dwellings is an infill development of a vacant and underutilized land. It uses an appropriate method for the provision of a compact housing form design and is technically feasible (s.6.5 (b) and (d) of the COP).
96The proposal is compatible with the character of the neighbourhood, in the public interest and represents good planning. The built form and type of the proposed dwellings can co-exist in harmony with the existing adjacent and nearby development without negative impacts. There is no evidence of negative impact on the immediate or wider neighbourhood properties.
CONCLUSION
97Based on the statement and testimony of Mr. Tung, the submissions, documentary evidence and the reasons provided, the Tribunal finds that the Application has regard to matters of provincial interest in accordance with s. 2 of the Act; is consistent with the PPS; conforms to the GP, ROP and COP. The proposal is compatible with the residential character of the Rosebank Neighbourhood, represents good planning and is in the public interest.
98The Tribunal has been provided with an amended ZBA that incorporates the necessary changes to amend the Zoning By-law. The Tribunal will exercise its discretionary power under s. 34(26)(b) of the Act to direct the municipality to amend the By-law.
ORDER
99The Tribunal orders that the Appeal is allowed and the municipality is directed to amend Zoning By-law No. 2511 (as amended) as set out in Attachment 1 to this order.
“T.F. Ng”
T.F. NG
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.