Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 08, 2022

CASE NO(S).: OLT-22-003875

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Bradley McMaster

Applicant: Michael Chiaravalle

Subject: Consent

Description: Minor Variance Consent to sever to facilitate severance into two equal parts to construct one new single detached dwelling

Reference Number: HM/B-22:21

Property Address: 15 Bartlett Avenue

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-22-003875

OLT Lead Case No: OLT-22-003875

OLT Case Name: McMaster v. Hamilton (City)

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

Subject: Minor Variance

Reference Number: HM/A-22:93

Property Address: 15 Bartlett Avenue

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-22-003876

OLT Lead Case No: OLT-22-003875

OLT Case Name: McMaster v. Hamilton (City)

Heard: October 31, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

Michael Chiaravalle

Raj Kehar*

Bradley McMaster

Self-Represented

DECISION DELIVERED BY S deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision concerns the hearing of the Appeal by Bradley McMaster (the “Appellant”) pursuant to s. 53(19) and s. 45(12) of the Planning Act (the “Act”) for the property municipally known as 15 Bartlett Avenue, in the City of Hamilton, the Subject Property (the “SP”).

2The minor variance application is seeking relief from the City of Hamilton’s Zoning By-law No. 6593 (the “ZBL”). The variances being requested are:

1. To permit a front yard depth of 7.0 metres whereas a front yard depth of 12 metres is required.

2. To permit a side yard width along each side lot line of 2.0 metres whereas 3.0 metres is required.

3. To permit a lot area of a minimum of 1,000 square metres whereas a minimum of 1,100 square metres is required.

3The minor variances are required to allow the consent application to be approved. The consent application proposes to sever the existing 2029.5 square metre (“sq m”) lot into two separate lots fronting onto Bartlett Avenue. The severed portion would have a lot size of 1,008.7 sq m and the retained portion would have a lot size of 1,020.8 sq m. The minor variances are needed for each of the proposed new lots.

4The SP is located within the “Allison Neighbourhood” in the City of Hamilton. This neighbourhood was established in the 1950s. The neighbourhood consists of large mature lots with single family dwellings. The SP is the largest lot in the neighbourhood located at the end of Bartlett Avenue with one dwelling occupying the property. Currently, Bartlett Avenue is a dead-end street with no known planning of an extension by the City.

5The SP is surrounded by a mix of one and two-storey single detached dwellings on lots of similar but somewhat smaller size and of similar shape.

6The SP is a zoned “B” District – Suburban Agriculture and Residential. This zoning allows for single family dwellings as a permitted use as long as the dwelling does not exceed two and a half storeys and shall not be over 11.0 metres (“m”) in height.

7Other restrictions of the “B” District are:

(a) a front yard depth of at least 12 metres;

(b) a side yard depth along each lot line of at least 3 metres;

(c) a front lot width of at least 20 metres and a lot size of at least 1,100 square metres.

8The Applicant submitted an application for minor variances in order to create two lots at 15 Bartlett Avenue. The Application was deemed complete on March 10, 2022. The application was presented to the City of Hamilton Committee of Adjustment (the “COA”) on April 28, 2022.

9The City of Hamilton Planning Staff recommended to the COA that the Minor Variance application be approved as the Application was deemed to have met the four tests as set out in s. 45(1) of the Planning Act. City Staff recommended that the Consent Application be approved as it was an appropriate form of infilling, was deemed appropriate for the neighbourhood and represented good planning. After consideration of the applications, taking into account the information presented before it and comments from the public and appropriate agencies, the COA made the decision to approve both the minor variance application and the consent application.

10Bradley McMaster, who was one of the neighbours within the notification zone, and who had provided comments to the COA, filed an Appeal of the COA decision to the Ontario Land Tribunal.

DAY OF THE HEARING

11The Tribunal heard from two witnesses. The first witness was for the Applicant, Glenn Wellings. Mr. Wellings was affirmed and approved without refute to give expert opinion evidence in the area of land use planning. Mr. Wellings was the author of the Applications and the planning justification report before the COA on behalf of the Applicant. The second witness was the Appellant himself. Mr. McMaster was affirmed to give non-opinion testimony against the Applications.

12The following were submitted as Exhibits to the hearing:

Exhibit 1: Applicant Document Book

Exhibit 2: Tab 15 of Applicant Document Book

Exhibit 3: Tab 16 of Applicant Document Book

Exhibit 4: Appellant Power Point Presentation

Exhibit 5: Appellant Letters of Opposition

Exhibit 6: Previous OMB Decision for 80 Lister

Legislative Framework for Minor Variance Appeals

13In the determination of this Appeal, it must be noted that pursuant to s. 45 of the Planning Act (“Act”), this is a hearing de novo and the onus is on the Applicant to establish that the four tests have been met.

14Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard or the decision of the COA and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

15The Tribunal must evaluate the minor variances in the context of the following four tests under s. 45(1) of the Act:

a. Do they maintain the general intent and purpose of the OPs?

b. Do they maintain the general intent and purpose of the ZBL?

c. Are they minor?

d. Are they desirable for the appropriate development or use of the land?

EVIDENCE

16Mr. Wellings took the Tribunal through site and area photos depicting the large parcels of each property in the area. He was able to show the Tribunal how the neighbourhood is a mix of older homes and some rebuilt homes. There are a variety of 1.5 and 2-storey homes. He was able to demonstrate to the Tribunal that the proposal will conform to the existing neighbourhood.

17Contextually, when the neighbourhood was created in the 1950’s, the large side yard setbacks were required since each property was serviced by private (septic) services. Since the area is now fully serviced by the city and private services are no longer being used, these setback requirements are no longer a requirement.

Provincial Policy Statement – 2020 (the “PPS”)

18Mr. Wellings demonstrated to the Tribunal that the proposal is consistent with the PPS as it meets the following policies:

1.1.1 Healthy, livable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

b) accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons), employment (including industrial and commercial), institutional (including places of worship, cemeteries and long-term care homes), recreation, park and open space, and other uses to meet long-term needs;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns;

d) avoiding development and land use patterns that would prevent the efficient expansion of settlement areas in those areas which are adjacent or close to settlement areas;

e) promoting the integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit investments, and standards to minimize land consumption and servicing costs;

g) ensuring that necessary infrastructure and public service facilities are or will be available to meet current and projected needs;

1.1.2 Sufficient land shall be made available to accommodate an appropriate range and mix of land uses to meet projected needs for a time horizon of up to 25 years, informed by provincial guidelines. However, where an alternate time period has been established for specific areas of the Province as a result of a provincial planning exercise or a provincial plan, that time frame may be used for municipalities within the area.

Within settlement areas, sufficient land shall be made available through intensification and redevelopment and, if necessary, designated growth areas.

1.1.3.1 Settlement areas shall be the focus of growth and development.

1.1.3.2 Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion;

e) support active transportation;

f) are transit-supportive, where transit is planned, exists or may be developed;

Land use patterns within settlement areas shall also be based on a range of uses and opportunities for intensification and redevelopment in accordance with the criteria in policy 1.1.3.3, where this can be accommodated.

1.1.3.3 Planning authorities shall identify appropriate locations and promote opportunities for transit-supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, including brownfield sites, and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs.

1.4.1 To provide for an appropriate range and mix of housing options and densities required to meet projected requirements of current and future residents of the regional market area, planning authorities shall:

a) maintain at all times the ability to accommodate residential growth for a minimum of 15 years through residential intensification and redevelopment and, if necessary, lands which are designated and available for residential development;

1.4.3 Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area by:

a) establishing and implementing minimum targets for the provision of housing which is affordable to low and moderate income households and which aligns with applicable housing and homelessness plans. However, where planning is conducted by an upper-tier municipality, the upper-tier municipality in consultation with the lower-tier municipalities may identify a higher target(s) which shall represent the minimum target(s) for these lower-tier municipalities;

b) permitting and facilitating:

1. all housing options required to meet the social, health, economic and well-being requirements of current and future residents, including special needs requirements and needs arising from demographic changes and employment opportunities;

Growth Plan for the Greater Golden Horseshoe (2020) (the “GH”)

19Mr. Wellings took the Tribunal through the GH and the policies to which the Proposal conformed with:

1.2.1 Guiding Principles:

Support the achievement of complete communities that are designed to support healthy and active living and meet people’s needs for daily living throughout an entire lifetime.

Prioritize intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability.

Support a range and mix of housing options, including additional residential units and affordable housing, to serve all sizes, incomes, and ages of households.

2.0 Where and How to Grow

2.1 Context

“To support the achievement of complete communities, this Plan establishes minimum intensification and density targets that recognize the diversity of communities across the GGH…Building compact and complete communities, and protecting agricultural lands, water resources and natural areas will help reduce greenhouse gas emissions and ensure communities are more resilient to the impacts of a changing climate.”

“To support the achievement of complete communities that are healthier, safer, and more equitable, choices about where and how growth occurs in the GGH need to be made carefully. Better use of land and infrastructure can be made by directing growth to settlement areas and prioritizing intensification, with a focus on strategic growth areas…while also supporting a more diverse range and mix of housing options.”

2.2.1 Managing Growth

2. Forecasted growth to the horizon of this Plan will be allocated based on the following:

a) the vast majority of growth will be directed to settlement areas that:

i. have a delineated built boundary;

ii. have existing or planned municipal water and wastewater systems; and

iii. can support the achievement of complete communities;

2.2.2 Delineated Built-up Areas

a) A minimum of 50 per cent of all residential development occurring annually within each of the Cities of Barrie, Brantford, Guelph, Hamilton, Orillia and Peterborough and the Regions of Durham, Halton, Niagara, Peel, Waterloo and York will be within the delineated built-up area;

City of Hamilton Urban Plan (the “UHOP”)

20Concerning the UHOP, Mr. Wellings opined that the proposal meets the goals under the “Neighbourhoods” designation and will represent a more compact use of the land that can make use of public transit:

E.1.0 GOALS

c) Develop compact, mixed use urban environments that support transit and active transportation,

e) Plan and designate lands for a range of housing types and densities, taking into account affordable housing needs.

f) Promote and support design which enhances and respects the character of existing neighbourhoods and creates vibrant, dynamic, and liveable urban places.

g) Promote and support appropriate residential intensification throughout the urban area and focused in Urban Nodes and Urban Corridors.

h) Recognize that Hamilton’s neighbourhoods are stable, not static.

21Mr. Wellings continued by demonstrating to the Tribunal that under s. 2.6 of the UHOP:

“Residential intensification within Neighbourhoods is part of the evolution of a neighbourhood and can happen at a range of scales and densities provided the intensification is compatible with vand respects the built form and character of the surrounding neighbourhood.”

2.6.2 Neighbourhoods shall primarily consist of residential uses and complementary facilities and services intended to serve the residents. These facilities and services may include parks, schools, trails, recreation centres, places of worship, small retail stores, offices, restaurants, and personal and government services.

2.6.4 The Neighbourhoods element of the urban structure shall permit and provide the opportunity for a full range of housing forms, types and tenure, including affordable housing and housing with supports.

2.6.7 Neighbourhoods shall generally be regarded as physically stable areas with each neighbourhood having a unique scale and character. Changes compatible with the existing character or function of the neighbourhood shall be permitted. Applications for development and residential intensification within Neighbourhoods shall be reviewed in consideration of the local context and shall be permitted in accordance with Sections B.2.4 – Residential Intensification, E.3.0 – Neighbourhoods Designation, E.4.0 – Commercial and Mixed Use Designations, and, E.6.0 – Institutional Designation.

22Chapter “B” of the UHOP contains policies for Residential Intensification and that under s. 2.4 the proposal meets the small-scale intensification guidelines:

2.4.1.4 Residential intensification developments shall be evaluated based on the following criteria:

b) the relationship of the proposal to existing neighbourhood character so that it maintains, and where possible, enhances and builds upon desirable established patterns and built form;

c) the development’s contribution to maintaining and achieving a range of dwelling types and tenures;

d) the compatible integration of the development with the surrounding area in terms of use, scale, form and character. In this regard, the City encourages the use of innovative and creative urban design techniques;

f) infrastructure and transportation capacity.

2.4.2.2 When considering an application for a residential intensification development within the Neighbourhoods designation, the following matters shall be evaluated:

b) compatibility with adjacent land uses including matters such as shadowing, overlook, noise, lighting, traffic, and other nuisance effects;

c) the relationship of the proposed building(s) with the height, massing, and scale of nearby residential buildings;

d) the consideration of transitions in height and density to adjacent residential buildings;

e) the relationship of the proposed lot(s) with the lot pattern and configuration within the neighbourhood;

f) the provision of amenity space and the relationship to existing patterns of private and public amenity space;

h) the ability to complement the existing functions of the neighbourhood;

j) infrastructure and transportation capacity and impacts.

23Concerning the lot creation, Mr. Wellings opined that the proposal conforms the policies under Chapter “F” – Implementation pertaining to Lot Creation – Urban Area, specifically with:

1.14.3.1 Consents for new lot creation, for both the severed and retained lands, for residential uses in the Neighbourhoods designation shown on Map E-1 – Urban Land Use Designation, shall be permitted provided the following conditions are met:

a) The lots comply with the policies of this Plan, including secondary plans, where one exists;

c) The lots are in conformity with the Zoning By-law or a minor variance is approved;

d) The lots reflect the general scale and character of the established development pattern in the surrounding area by taking into consideration lot frontages and areas, building height, coverage, mass, setbacks, privacy and overview;

e) The lots are fully serviced by municipal water and wastewater systems; and,

f) The lots have frontage on a public road.

24Mr. Wellings opined that the proposal conforms to the above noted criteria of the UHOP. He opined that the goals and policies of the “Neighbourhoods” designation remain intact, and the proposed severance will result in two parcels of land that will contain two new 2-storey dwellings that meet the minimum lot width requirements. The minor variances are only needed to conform to the ZBL.

The Four Tests of a Minor Variance

Maintain the General Intent and purpose of the OP

25The general intent and purpose of the OP is to ensure that the “Neighbourhoods” designation remains residential and that the existing character of the neighbourhood is ensured and that any development is compatible to the existing neighbourhood. Compatibility is defined in the UHOP as:

Compatibility/compatible: means land uses and building forms that are mutually tolerant and capable of existing together in harmony within an area. Compatibility or compatible should not be narrowly interpreted to mean “the same as” or even as “being similar to”.

26Mr. Wellings opined that the proposal will create an additional single-detached dwelling in a neighbourhood where the dominant form is that of single-detached dwellings. The proposed lot size and setbacks will be compatible with the surrounding neighbourhood. It was his opinion that the minor variances do meet the general intent and purpose of the OP.

Maintain the General Intent and Purpose of the ZBL

27As for the ZBL, Mr. Wellings opined that the ZBL is to ensure that appropriate development occurs in an appropriate scale and intensity that is in keeping with the neighbourhood. Mr. Wellings opined that the requested variances for the front and side yard setback do meet the intent and purpose of the ZBL. The requested variances will allow the proposal to be compatible with the surrounding neighbourhood and do not impose an over intensification of the neighbourhood. The current side yard setback was in place to allow for private services to be accessible if needed. Since the SP is on municipal services, this setback requirement is not necessary. The lot size requirement will not be noticeable in the neighbourhood as the existing lot is the largest in the neighbourhood. The separation into two lots will be similar to other lots in the neighbourhood and will not constitute an over intensification. The lot width is over the minimum required. The front yard setback will allow the front of the proposed dwellings to be in keeping with the front yard setbacks of the existing homes on Bartlett Avenue. All other provisions of the ZBL will be met with this proposal.

Minor in Nature

28Mr. Wellings opined that the impact from the proposed variances are minimal. The newly proposed dwellings will be consistent in terms of height and size with other homes in the neighbourhood. There will not be any adverse affects from shadowing, overlook or noise issues. The requested variances will not have any adverse effect on neighbouring properties.

Desirable and Appropriate Development Use of the Land

29Mr. Wellings opined that the requested variances are appropriate in scale and will fit in with the existing character of the neighbourhood. The proposal will provide an appropriate intensification that is suitable to the neighbourhood.

Conclusionary Opinion

30It was Mr. Wellings’ opinion that the consent application conforms to the OP. The minor variances being requested satisfy the four tests of a minor variance as set out in s. 45(1) of the Planning Act. The proposal is reasonable and an appropriate intensification of the neighbourhood. The proposal represents good planning.

Evidence of the Appellant

31Mr. McMaster took the Tribunal through his presentation and concerns about the Applications before the Tribunal. His opinion was that the variances are not in keeping with the standards of the “B” zoning and are not minor in nature. The side-yard setback is not in keeping with the adjacent lot. Water runoff from the proposed new dwellings would increase the runoff onto adjoining properties, specifically properties that still have a septic bed in their yards.

32Mr. McMaster stated that the new proposed lots could be the start of a precedent which could destabilize the character of this and other adjacent neighbourhoods.

33Mr. McMaster supplied the Tribunal with what he stated was a similar case that was before the Ontario Municipal Board in November 2008. He stated that in this case, the appeal was dismissed, and the consent and minor variance application were not approved to allow intensification.

34Mr. McMaster stated that the proper process for this application should be through a Zoning By-law Amendment, not a consent and minor variance application.

ANALYSIS AND FINDINGS

35Through the analysis of the evidence presented, the Tribunal finds that Mr. McMaster did not provide any land planning evidence that could refute any of the evidence presented by Mr. Wellings. Mr. McMaster did not provide to the Tribunal any expert evidence that would contravene the evidence provided by Mr. Wellings. The case provided by Mr. McMaster was previous to the current UHOP being implemented and cannot have any bearing on the current approved UHOP. As such, the Tribunal accepts the unrefuted evidence of Mr. Wellings.

36The Tribunal, having given regard to the initial decision of the COA and the information considered by it, and given the unrefuted expert testimony and opinion evidence provided by Mr. Wellings, the Tribunal finds that the Applicant has met the four tests as set out in s. 45(1) of the Planning Act.

37The Tribunal is satisfied that the Minor Variance Application maintains the general intent and purpose of the UHOP, maintains the general intent and purpose of the ZBL, is minor in nature and is a desirable use of the land. The Application represents good planning.

38The Tribunal finds that the Consent Application is consistent with the PPS and GH and conforms to the UHOP and represents an appropriate from of intensification. The Tribunal finds that there are not any adverse affects to the neighbourhood with the approval of the Consent Application. The Consent Application as proposed is an appropriate use of the land and represents good land use planning.

ORDER

39THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By-law No. 6593 are authorized.

40THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is to be given, subject to the conditions imposed by the Committee of Adjustment’s decision of April 28, 2022.

“S. deBoer”

S. deBOER

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.