Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 15, 2022
CASE NO(S).: OLT-21-001173
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 2721536 Ontario Inc.
Subject: Consent
Property Address/Description: 129 East 22nd Street
Municipality: City of Hamilton
Municipal File No.: HM/B-21:25
OLT Case No.: OLT-21-001173
OLT File No.: OLT-21-001173
OLT Case Name: 2721536 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 2721536 Ontario Inc.
Subject: Minor Variance
Variance from By-law No.: 6593
Property Address/Description: 129 East 22nd Street
Municipality: City of Hamilton
Municipal File No.: HM/A-21:117
OLT Case No.: OLT-21-001173
OLT File No.: OLT-21-001174
Heard: January 14, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2721536 Ontario Inc. | Nancy Smith |
| City of Hamilton | No One Appeared |
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JANUARY 14, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
12721536 Ontario Inc. (“Applicant/Appellant”), of 129 East 22nd Street (“subject property/subject land”) in the City of Hamilton (“City”) has applied for consent to sever the subject property into two lots and to convey the severed parcel. The Committee of Adjustment (“COA”) denied the Application on May 27, 2021 (“Refusal”).
2The Applicant appealed the COA’s Refusal to the Tribunal.
3The consent application is to permit conveyance of a 2.97 metres (“m”) by 34.04 m parcel of land with approximate area of 97.72 square metre (“sq m”); and to retain a 9.77 m by 34.03 m parcel of land with approximate area of 335.05 sq m. The severed parcel is to be added to the abutting north vacant lot (also owned by the Applicant) to create a new lot (severed lot) for a single detached dwelling. The severed parcel is to serve as a mutual access driveway to the proposed rear yard parking for both the new severed lot and the retained lot.
4The subject property has an existing duplex dwelling and an existing 6.2 m driveway which is centred on the northerly lot line with the abutting northern vacant lot.
5Minor variances are required for both the existing structure on the retained lot and the proposed structure on the severed lot.
6The reliefs sought under Zoning By-law No. 6593 (“ZBL”) are:
For the severed lot:
a) A minimum front yard depth of 3.9 metres shall be permitted for the new dwelling to be constructed on the enlarged vacant lot whereas the minimum required front yard depth is 6.0 metres.
b) A minimum lot width of 9.4 metres shall be permitted for the enlarged vacant lot whereas the required minimum lot width is 12.0 metres.
c) A minimum lot area of 322 square metres shall be permitted for the enlarged vacant lot whereas the minimum required lot area is 360.0 square metres.
For the retained lot
d) A minimum northerly side yard width of 0.0 metres shall be permitted for the existing two-family dwelling located on the retained lot whereas the minimum required side yard width is 1.2 metres.
e) A minimum lot width of 9.7 metres shall be permitted for the retained lot whereas the required minimum lot width is 12.0 metres.
SITE
7The subject property is located south of the Escarpment Brow, within a block of land (neighbourhood) bound by Concession Street to the north, Fennell Avenue East to the south, Upper Wentworth Street to the west and Upper Sherman Street to the east.
8The above-defined neighbourhood is referred to as the Eastmount Planning Unit on the City’s Planning Unit Index Map (refer to Tab 1 in the Visual Document Book). The Eastmount Planning Unit is not subject to a Secondary Plan or a Neighbourhood Plan.
9The Eastmount Neighbourhood is included in the City’s Historic Neighbourhood Inventory. There are four (4) Established Historical Neighbourhoods south of the Escarpment Brow including Eastmount. Southam, Centremount and Inch Park Neighbourhoods are located to the west of the Eastmount Neighbourhood.
10The phrase ‘Established Historical Neighbourhood’ is defined in the Urban Hamilton Official Plan (“UHOP”) as a physically defined geographical area that was built prior to 1950.
11East 22nd Street is a north/south local road. It extends between Concession Street to the north and Franklin Road to the south and is approximately 1,500 m in length.
12The subject property is located within the western half of the Eastmount Neighbourhood, on the east side of East 22nd Street, south of Crockett Street and north of Queensdale Avenue East.
13The subject property contains a single detached dwelling that was legally converted to two (2) units in 2020.
14The vacant lot has a frontage of 6.19 m and an area of approximately 220 sq m.
15The subject land has a frontage of 12.7 m and an area of approximately 432.3 sq m.
Urban Hamilton Official Plan
16The subject property is identified as "Neighbourhoods" on Schedule "E" - Urban Structure and designated "Neighbourhoods" on Schedule "E-1" - Urban Land Use Designations in the UHOP. The subject property is within an established area. There is an existing duplex dwelling which is proposed to remain, and a new single detached dwelling is proposed for the new lot. In accordance with Section B.2.4.- Residential Intensification, and as required by Policy E.3.2.4, the proposed development shall enhance and be compatible with the scale and character of the existing residential neighbourhood.
Former City of Hamilton Zoning By-law No. 6593
17The subject property is zoned "D" District (Urban Protected Residential - One and Two Family Dwellings Etc.), which permits single detached dwellings and the existing converted two-family dwelling, subject to the applicable provisions.
Cultural Heritage
18The subject property is part of the Eastmount Established Historical Neighbourhood. Accordingly, Section B.3.4.3.6 of the UHOP, Volume 1, applies. Where new construction is proposed in an Established Historic Neighbourhood, key considerations are the visual and physical impacts on landscape features, typically public views of the building fabric, building set-back, the streetscape and significant vistas.
Hearing
19No one appeared on behalf of the City and it did not participate at the hearing. City Planning Technician, Sara Rogers appeared under summons requested by the Applicant.
20Ms. Smith, Counsel for the Applicant, called Nancy Frieday, a registered planner, who was qualified to give expert opinion on land use planning matters. Likewise, Ms. Rogers was qualified to give opinion evidence on land use planning matters.
21Ms. Rogers gave testimony pertaining to her favourable planning staff report, that she authored dated May 6, 2021. Essentially her testimony confirmed her opinion in the report that the proposed development had regard for provincial interests, met the requirements of the Planning Act (“Act”) and the statutory tests for the variances proposed. Staff have reviewed the application and are of the opinion that the cultural heritage value of the landscape will be conserved. Staff have reviewed the proposed elevations and find them in keeping with the character of the Eastmount Neighbourhood and the design of the other dwellings on the street. The Planning report recommended approval of the severance and variances subject to conditions.
ISSUE
22The issue before the Tribunal is whether the severance of the subject property with the creation of two lots as applied for in the Consent to sever land Application meets the general requirements set out in the applicable Provincial Planning legislation and Municipal planning policies and the specific criteria of s. 51(24) of the Act and represents good planning. The proposed severance must meet the requirements of the applicable policies of the applicable Official Plan and Zoning By-laws.
23The Tribunal shall also have regard to matters of Provincial interest and to information and material that the COA considered in making its decision.
24An Applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, i.e.; that the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the land building or structure and are minor in nature.
EVIDENCE AND ANALYSIS
25Ms. Frieday provided her view on the applicable policy framework and land use planning opinion pertaining to the proposed severance. She reviewed the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”). She opined that the proposed severance meets the criteria under s. 51(24) of the Act governing severances. It conforms to the Official Plan and is consistent with the PPS and conforms to the Growth Plan by facilitating a new housing lot in a stable neighbourhood that is served by existing infrastructure.
26The variances meet the four tests for minor variances under the Act. The proposed development as facilitated by the variances is desirable, minor, meets the general intent and purpose of the Official Plan and zoning, and is consistent/conforms with Provincial policy, represents good planning, and warrants the Tribunal’s approval.
27In her opinion, the proposed development as facilitated by the consent represents good planning, and merits approval by the Tribunal.
PPS 2020
28The Tribunal finds that the proposed development is consistent with the PPS 2020. It will facilitate modest intensification within an existing settlement area that is well served by existing infrastructure. The proposal achieves the intent of the PPS, including: Part V, Policies, Section 1.0, Building Strong Healthy Communities, Policy 1.1.1 e) which speaks to:…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.
29Ms. Frieday emphasized that the development standards proposed through the subject applications are representative of existing development in the immediate area and throughout the Eastmount Neighbourhood.
30The Tribunal agrees with Ms. Frieday that with the proposed lot addition, the enlarged vacant lot is suitable for intensification as defined in the PPS.
31The retained lot contains the existing dwelling that has been converted to two (2) dwelling units (intensification) and access will be via a driveway on the severed lot, with a right-of-way registered in favour of the retained lot. Two parking spaces are proposed in the rear yard. The proposed development will make more efficient use of land and the existing infrastructure and municipal services which exist on East 22nd Street. The Tribunal finds that the proposed development is consistent with the PPS.
Growth Plan
32Ms. Frieday’s opinion is that the proposed development, as facilitated by the proposed severance and variances (subject applications), conforms to the Growth Plan 2020. Policy 2.2.2.3 provides for a range of intensification throughout delineated built up areas. Municipalities are required to develop a strategy to achieve the minimum intensification targets to encourage intensification generally throughout the delineated built-up area. This policy supports the modest intensification opportunities where they can be accommodated such as on the subject property. The Growth Plan policies are based on several guiding principles including to prioritize intensification and higher densities and to make efficient use of land and infrastructure and support transit viability.
33The subject property is within the City’s built boundary which is illustrated on Appendix G to the UHOP. The proposal will contribute to established growth targets and will achieve a more compact built form that is appropriate given the overall characteristics of the Eastmount Neighbourhood as well as contribute to a more efficient use of land. Transit is available nearby on Upper Wentworth Street (Route 25). The Tribunal finds that the proposal conforms to the Growth Plan.
S. 51(24)
34Ms. Frieday stated that the Consent represents good planning and meets the criteria under the Act.
35In her opinion, as not more than one new lot is created, no plan of subdivision is required for proper and orderly development. The proposed lots and the mutual driveway have been appropriately illustrated on the plans.
36Section 51(24) of the Act denotes several criteria. The Tribunal finds that the relevant criteria (a) to (d), (f) and (i) are met.
37The proposal creates an additional lot which is consistent with the existing lotting pattern and zoning of the neighbourhood. This facilitates small scale intensification and a built form that is appropriate on a site that has existing municipal services and infrastructure.
38The subject property is located within the urban area of the City. The Tribunal finds that the policies applicable to the urban area generally support the achievement of complete communities through intensification, while still maintaining their character.
UHOP
39The subject land is identified as being within the Neighbourhoods Structure on Schedule E – Urban Structure to the UHOP and designated “Neighbourhoods” on Schedule E-1 – Urban Land Use Designations.
40Chapter E, Urban Systems and Designations, Policy E.2.0, Urban Structure, Policy E.2.6.7 states that:
…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,
41The proposed variances, in Ms. Frieday’s opinion, meet the general intent and purpose of the UHOP. The UHOP designates the subject property Neighbourhoods on Schedule E which permits single detached family dwellings within the designation. The overall intent of the Neighbourhoods designation is to maintain, enhance and ensure that new development is compatible with the existing character of the neighbourhood.
42The City supports residential intensification on lands within the Neighbourhoods designation in accordance with Section B.2.4 – Residential Intensification Policies.
43Policy B.2.4.1.4 of the UHOP contains a set of criteria upon which to evaluate residential intensification.
44Ms. Frieday analyzed the immediate neighbourhood and the existing Eastmount Neighbourhood area and found that the lot sizes, lot patterns and built form are reflective of each other. There is a variety of lot sizes, narrower and wider lots exist in the area.
45Ms. Frieday opined that the proposed lot addition creates two (2) re-configured lots, smaller than the existing lots on East 22nd Street to the north and south. However, the proposed lots are not out of character with the variety of lot sizes in the immediate neighbourhood. A new dwelling on the enlarged vacant lot would be compatible with the surrounding dwellings.
46The UHOP defines compatibility/compatible as: “...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.”
47The subject property has a frontage of 12.7 m and a depth of 34.04 m for an area of approximately 432.3 sq m.
48The lots north of the subject property have frontages of approximately 12.5 m and depths of approximately 34.7 m for areas of approximately 433.7 sq m.
49The northern vacant lot, where a portion of the subject property is to be severed and added to, redistributes land such that the vacant lot can be built on. The proposed dwelling on the severed lot will be narrower than the dwellings on East 22nd Street, but overall design, height and yard setbacks will be similar to other dwellings along this street.
50The proposal will result in the development of a new dwelling on the severed lot, that is similar to and compatible with the overall established lot fabric / development pattern and built form in the immediate area. As such, the subject applications conform with Policy B.2.4.1.4 b) of the UHOP.
51The “D” Districts zone permits a height of three (3) storeys for dwellings. The architectural drawings for the new dwelling show a height of one ½ storeys and approximately eight (8) metres. This height is in keeping with the height of the existing dwellings on the street.
52Residential intensification within the Neighbourhoods designation is identified in the UHOP as part of the evolution of a neighbourhood as long as it is compatible with and respects the surrounding built form and character.
53The Tribunal agrees with Ms. Frieday that the Neighbourhoods residential intensification policies are set out in section B.2.4. The intent of the policies has been addressed through the built form design that is characteristic of existing dwellings in the neighbourhood. The proposed one and a half storey dwelling will maintain and enhance the character and identity of this residential neighbourhood. The proposed dwelling of the new lot is below the three storeys permitted and is in keeping with the built form character of the adjacent dwellings and the existing dwelling on the retained lot.
54The development retains the existing dwelling on the retained lot, with residential rental potential. The proposal will in a modest manner increase the residential stock in the community which is a permitted form of intensification through the creation of new lots consistent with the scale, size and form of housing in the neighbourhood as a whole.
55The Tribunal finds that the criteria for development within the Neighbourhoods designation are met. Particularly, that development in this neighbourhood will maintain and enhance the existing physical character of the residential area including prevailing lot sizes, yard setbacks, widths and lotting pattern. The Tribunal is satisfied that the proposed development maintains the general intent and purpose of the UHOP and the ZBL.
Section 45(1) of the Act
Variance 1: Front Yard Setback for the severed lot proposed at 3.9m.
56Ms. Frieday reviewed the front yard setbacks for approximately thirty-four (34) lots between Queensdale Avenue East and Crockett Street along both sides of East 22nd Street. The analysis shows that only one (1) lot meets the 6.0 m required front yard setback.
57Approximately 29% of the lots have a front yard setback equal to or less than the requested 3.8 m. The average front yard setback is approximately 4.27 m.
58The front yard setback of the retained lot is 3.8 m. A front yard setback of 3.9 m is proposed for the enlarged vacant lot.
59Maintaining a consistent front yard setback provides for a more uniform streetscape. Aligning the new dwelling with the dwelling on the retained lot facilitates the design of an appropriately sized new dwelling and enables parking spaces to be located in the rear yard.
60The existing driveway will serve as a shared access to and from the separate parking spaces provided in the rear yard of each lot. This removes the potential for front yard parking.
61The UHOP states that new lots must reflect the general scale and character of the established development pattern measured by parameters such as lot frontages and areas, building height, coverage, mass, and setbacks. The proposed varied front yard setback maintains the general intent and purpose of the UHOP and is in keeping with the existing front yard setbacks in the area.
62The purpose of a front yard setback is to provide sufficient distance from the street to allow for driveways, walkways, porches, and landscaping. The existing dwellings along East 22nd Street are not setback the required 6.0 m. The front yard setbacks at 3.8 m and 3.9 m provide sufficient area for front yard amenities and is in keeping with the established pattern. The general intent and purpose of the Zoning By-law will continue to be maintained with the requested reduction in the minimum front yard setback.
63The variance to allow for reduced front yards continues the prevalent pattern along the street. If a 6.0 m front yard is provided for the enlarged vacant lot, the new dwelling would be setback further on the lot than the dwellings to the north and south. The increased front yard may impact the ability to provide sufficient area for rear yard amenity space and parking. Therefore, the variance is both desirable and appropriate for this minor infill situation.
64Consideration of more than solely the numerical difference between the required zone regulation and the requested zone regulation is needed to determine minor. The minor nature of a variance is based on its impact upon the abutting land uses. The requested front yard setback places the new dwelling in-line with the dwelling to the south and north. The requested front yard variance is minor in nature.
Variance 2: Internal Side Yard Setback for the retained lot at 0m.
65The minimum north side yard setback of 0.15 of a m for the retained lot is created by adding the severed parcel to the vacant lot to the north. The driveway will then become a mutual driveway for both the lots through the concurrent approval of a right-of-way.
66The separation distance between the existing dwelling and the new dwelling, at approximately 3.0 m, is consistent with the existing separation distances between dwellings on East 22nd Street. The distance between the proposed lot line and the north wall of the existing dwelling is 0.15 – 0.0 of a metre. However, given the right-of-way over the driveway, access to the north side of the dwelling can be obtained for maintenance purposes.
67Internal to the subject land, the reduced north side yard will not impact the abutting properties at either 121 East 22nd Street or 133 East 22nd Street. The south side yard of the retained lot will remain as existing (1.64 metres) which exceeds the Zoning By-law requirement of 1.2 m. The proposed north side yard of the vacant lot is 1.2 m which meets the Zoning By-law regulation.
68The requested reduction in the minimum north side yard for the retained lot maintains the general intent and purpose of the UHOP and will not be perceived from the public realm.
69The purpose of a minimum side yard setback is to ensure there is adequate separation between buildings to access the dwelling and rear yard amenity areas. With the right-of-way over the driveway and the existing side yard to the south, vehicle and pedestrian access to the retained lot is maintained. For this reason and the reasons noted above, the reduced side yard maintains the general intent and purpose of the Zoning By-law.
70To provide for a suitably sized infill lot, it is necessary to add the severed parcel to the vacant lot and to request a right-of-way for the retained lot. A larger side yard is not necessary, and the reduced north side yard enables the sharing of a driveway to access rear yard parking. An additional driveway access onto East 22nd Street is not necessary.
71The reduced north side yard for the retained lot does not impact any adjacent lots. Access to the rear yard remains available and there is no perceivable difference as the existing driveway will remain in place. The reduced north side yard for the retained lot is minor in nature.
Variance 3 and 4: Lot Width for the new severed lot proposed at 9.4m and for the retained lot at 9.7m
72The lot width of the vacant lot to the north of the retained lot will increase from 6.19 m to approximately 9.4 m. The lot width of retained lot will decrease from 12.7 m to approximately 9.7 m. This redistribution of frontage and area will allow the minor intensification/infill to occur.
73With the redistribution (lot addition) the driveway shifts from one lot to the other, and this in turn facilitates the construction of a new dwelling. Neither the UHOP nor the Zoning By-law prevent the use of a mutual driveway.
74The reduction in lot widths, from the required 12.0 m to 9.4 and 9.7 m maintains the general intent and purpose of the UHOP to encourage intensification and infill in the built-up area of all areas of the City, while ensuring compatibility.
75The lot widths in the neighbourhood vary from just over 12.0 m to 7.6 m. The proposed lot widths represent an average lot width within the neighbourhood.
76The purpose of a minimum lot width is to ensure that there is sufficient space to accommodate a dwelling, driveway, and a sufficient distance between dwellings. While the lot width of the retained lot will be reduced it will not be perceived from the public realm. The general intent and purpose of the Zoning By-law will continue to be maintained.
77Taken together, the enlarged vacant lot and the retained lot have a width of approximately 19.1 m. This is greater than the required lot width of 12.0 m and greater than most lots in the immediate area. There is therefore an opportunity to plan for a small-scale infill development to permit one additional dwelling. The equalization of the lot widths is considered desirable and appropriate for the subject property.
78The result of all the minor variances is to permit a new dwelling on an infill basis. The result is a new dwelling directly to the south of 121 East 22nd Street and the minimum 1.2 m side yard requirement is met. Efforts will be made to retain the existing tree on the neighbouring lot that provides a tree canopy for both 121 East 22nd Street and the enlarged vacant lot. The modifications to the lot widths are minor in nature.
Variance 5: Reduction in Lot Area of the severed lot of approximately 322 sq m.
79The minimum required lot area in the “D” District is 360 sq m. The area of the vacant lot will become approximately 322 sq m and the area of the retained lot will become approximately 334.6 sq m, which equates to a reduction of approximately thirty-eight (38) sq m and twenty-five (25) sq m, respectively.
80Given that the retained lot contains a converted dwelling, the required lot area is 270 sq m, not 360 sq m. As such a variance for lot area is not required for the retained lot.
81With the addition of the severed parcel, the area of the vacant lot will increase to a sufficient size to accommodate a new dwelling and to provide for parking in the rear yard.
82There are lots in the immediate neighbourhood that are less than 322 sq m, and they are integrated well with dwellings on larger lots. The overall character of the neighbourhood includes a mix of lot sizes, dwelling types, sizes and heights.
83The purpose of a minimum lot area is to ensure that there is sufficient space to accommodate a dwelling, driveway, and amenity space. Each lot is of a sufficient size to accommodate a dwelling, amenity space and parking. The shared feature between the two (2) lots is the driveway.
84The small reduction in lot area for the enlarged vacant lot maintains the general intent and purpose of the Zoning By-law.
85Infill and intensification in the built-up area is considered desirable and appropriate provided several policies are met regarding compatibility with adjacent uses and the provision of adequate area on the lots for amenities associated with low-rise dwellings. The severed parcel and the addition of the parcel to the vacant lot equalizes the lot areas. This is considered desirable and appropriate to achieve the proposed infill.
86The shifting of a property boundary to permit the construction of a single detached dwelling is minor in nature and it will not have an adverse impact on the surrounding area. The consequence of the shift is that a mutual driveway is required to serve both lots.
SUMMARY
UHOP
87Ms. Frieday stated the proposed new dwelling will be compatible in scale and height to the surrounding development. The proposed new dwelling will not result in undue shadowing, overlook, noise, lighting, traffic, or any other nuisance effects.
88The UHOP states that changes compatible with the existing character or function of the neighbourhood shall be permitted. The City supports residential intensification on lands within the Neighbourhoods designation.
89The proposed minor variances would facilitate the development of one (1) single-detached dwelling that is compatible with the existing character and function of the neighbourhood. The proposed development complies with the policies within Policy B.2.4 - Residential Intensification.
90The Tribunal finds that the UHOP encourages a mix of lot widths and sizes compatible with the streetscape and exterior designs, including character, scale, appearance, and design features. This proposed development is compatible with the existing Neighbourhoods character and will maintain and enhance the character of this area. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the UHOP.
ZBL
91In Ms. Frieday’s opinion, the proposed variances individually and cumulatively maintain the general intent and purpose of the ZBL. The Tribunal finds that the zone permits the residential use. The plan and design elements that consider the particular unequal lot sizes to craft a solution to enable the creation of a new buildable lot with the right dimensions and lot sizes represent good planning. The resulting development of a one and a half storey new dwelling is compatible with the existing two storey built form character of the area. This area contains a range of lot sizes, lot widths, front and side yard setbacks. The two proposed lot widths of 9.4 m and 9.7 m as well as the proposed setbacks and lot areas are compatible with those in this area. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the ZBL.
Desirable
92In Ms. Frieday’s opinion, the respective front yard/ side yard setbacks, the lot widths and area variances are desirable for the appropriate development of the subject land and the area. The variances will facilitate the creation of a new residential lot in the neighbourhood, which will create more housing in a well serviced area. The Tribunal finds that the creation of two lots is a desired outcome that enhances the residential stock in this residential neighbourhood. The retained lot will contain the existing dwelling while the severed lot will contain a new dwelling that will be compliant with zoning standards and compatible in built-form with the existing surroundings. This modest intensification of the subject property that will take advantage of the municipal infrastructure and services will be a welcome addition in the residential community. The Tribunal is satisfied that the proposed development is desirable for the appropriate development of the subject property.
Minor
93The proposed variances do not result in any perceptible changes on the subject property and merely reflects a new lot line between the lots. Visually, the reduced yards setbacks will have no effect on the existing visual landscape of the area (when viewed from the street) as the subject property is a large lot which is suitable for the proposed severance. The retained lot is of an appropriate size to accommodate the existing two family dwelling. With the mutual driveway and right-of-way between the retained and severed lots, and car parking at the rear yards of these lots, there will be no blockage of the mutual driveway. No adverse impact will result to the existing streetscape. There are sufficient setbacks on both lots to avoid any privacy overlook or shadowing issues and no perceived adverse impacts can affect the public realm or adjacent properties. The Tribunal is thus satisfied that the variances are minor in nature.
Provincial Interest
94The Tribunal is satisfied that the proposed variances at the subject property has regard for the matters of provincial interest as set out in s. 2 of the Act in particular 2(h) the orderly development of safe and healthy communities, 2(j) on the provision of a range of housing and 2(r) on the promotion of built form that is well-designed.
95The Tribunal has reviewed the original applications and the documents filed in the appeals, the Municipal records, and the minutes of COA decision.
96Upon the unopposed planning evidence provided by Mlles. Frieday and Rogers, the Tribunal finds that the consent application meets the criteria in s. 51(24) of the Act and has regard for Provincial interests.
CONCLUSION
97The Tribunal finds that the Consent to sever land application is consistent with the policies of the PPS, conforms with the policies of the Growth Plan, maintains the general intent and purpose of the Official Plan and the ZBL, represents good planning and in the public interest. Accordingly, the Tribunal will authorize the Consent to sever the subject property into two lots as proposed subject to conditions of approval proposed by the Applicant’s planner.
98Having considered the uncontradicted evidence of Mlles. Frieday and Rogers the Tribunal accepts that the Conditions are reasonable. The Tribunal will impose these conditions for the approval of the proposed severance.
99The Tribunal is satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Planning Act and that the application for consent to sever has proper regard for the criteria set out in s. 51(24) of the Act.
ORDER
100The Tribunal orders that the Applicant’s Appeals are allowed and provisional Consent to sever land is granted subject to the Conditions attached as Attachment 1 to this order.
101The Tribunal orders that the variances to Zoning By-law No. 6593 are authorized.
“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.
ATTACHMENT 1
CONDITIONS OF APPROVAL OF SEVERANCE
HM/B-21:25 - 129 East 22nd St., Hamilton
The severance is granted subject to the following condition(s):
The owner shall submit a deposited Ontario Land Surveyor's Reference Plan to the Committee of Adjustment Office, unless exempted by the Land Registrar. The reference plan must be submitted in hard copy and also submitted in CAD format, drawn at true scale and location and tied to the City corporate coordinate system.
That a right-of-way easement to establish the proposed mutual driveway be registered against the title of both the new lot and the retained lot, to the satisfaction of the Manager of Development Planning, Heritage and Design.
That final and binding approval of Minor Variance Application HM/A-21:117 be received, to the satisfaction of the Manager of Development Planning, Heritage and Design.
That, pursuant to subsection 50(12) of the Ontario Planning Act, R.S.O. 1990, it is hereby stipulated that subsection 50(3) or subsection 50(5) shall apply to any subsequent conveyance of or other transaction involving the identical subject parcel of land. Therefore, the applicant will provide the Secretary-Treasurer with a Solicitor's undertaking that the condition of the Committee of Adjustment will be implemented and that the severed lands, as outlined in the Notice of Hearing, will merge with the parcel abutting to the north, being Part 1 on Reference Plan 62R- 12015, and become one parcel of land.
The lands to be conveyed shall be merged in title with the lands to which they are to be added.
The owner shall comply with Ontario Building Code requirements regarding spatial separation distances of any structures. Compliance to be confirmed by the Planning and Economic Development Department (Building Division -Plan Examination Section).
The owner shall receive final approval of any necessary variances from the requirements of the Zoning By-law as determined necessary by the Planning and Economic Development Department (Building Division - Zoning Section).
The owner shall submit survey evidence that the building existing on the lands to be retained, including the location of any existing structure(s), parking and landscaping conform to the requirements of the Zoning By-Law or alternatively apply for and receive final approval of any variances from the requirements of the Zoning By-Law as determined necessary by the Planning and Economic Development Department (Building Division - Zoning Section).
That the Owner enter into with the City of Hamilton and register on title of the lands, a Consent Agreement, having an administrative fee of $4,310.00 (2021 fee) to address issues including but not limited to: lot grading and drainage to a suitable outlet on the conveyed and retained parcels (detailed grading plan required), erosion and sediment control measures (to be included on the grading plan); cash payment requirements for items such as street trees (City policy requires one (1) street tree/lot, inspection of grading, stormwater management infrastructure and securities for items that may include: lot grading ($10,000.00 grading security), water and sewer service inspections, driveway approaches, relocation of any existing infrastructure (such as hydrants) and any damage during construction (unknown costs at this time). Cash payments mentioned above are subject to change.
The owner shall pay any outstanding realty taxes and/or all other charges owing to the City Treasurer.