Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 14, 2022

CASE NO(S).: OLT-22-004199

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

Appellant: Michael Kazragis Applicants: Michael Kazragis and Vytas Kazragis Subject: Consent Description: To sever parcel into two parts to construct two storey single detached dwelling with attached garage Reference Number: D10-12-2022 Property Address: 53 Wellington Street North Municipality/UT: City of Thorold/ Niagara Region OLT Case No.: OLT-22-004199 OLT Lead Case No.: OLT-22-004199 OLT Case Name: Kazragis v. Thorold (City)

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

Appellant: Michael Kazragis Applicants: Michael Kazragis and Vytas Kazragis Subject: Minor Variance Description: To construct a two storey single detached dwelling with attached garage Reference Number: D13-14-2022 Property Address: 53 Wellington Street North Municipality/UT: City of Thorold/ Niagara Region OLT Case No.: OLT-22-004200 OLT Lead Case No.: OLT-22-004199 OLT Case Name: Kazragis v. Thorold (City)

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

Appellant: Michael Kazragis Applicants: Michael Kazragis and Vytas Kazragis Subject: Minor Variance Description: To construct a two-storey single detached dwelling with attached garage Reference Number: D13-15-2022 Property Address: 53 Wellington Street North Municipality/UT: City of Thorold/ Niagara Region OLT Case No.: OLT-22-004201 OLT Lead Case No.: OLT-22-004199 OLT Case Name: Kazragis v. Thorold (City)

Heard: November 30, 2022 via video hearing

APPEARANCES:

Parties	Counsel
Michael Kazragis and Vytas Kazragis (Collectively, the "Applicant" or the "Appellant")	Self-Represented

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Appellant has appealed the decision by the Committee of Adjustment (“Committee”) of the City of Thorold (“City”) refusing the consent application and two minor variance applications regarding the property municipally known as 53 Wellington Street North (“Subject Property”). The consent and minor variance applications were designed to permit the severance of the Subject Property into two lots that do not comply with the minimum lot area and minimum lot frontage requirements of Comprehensive Zoning By-law 2140 (97) (“ZB”). The two proposed lots would be as follows:

1. The retained lot fronting onto Wellington Street at the corner of Cynthia Street (“Retained Parcel”) where the current one storey dwelling would remain, identified as Part 2 on the Severance Sketch prepared by Chambers and Associates, dated April 6th, 2022 (“Sketch”), and;
2. The severed lot will be on Wellington Street where a new two storey detached dwelling with an attached garage is proposed for construction identified as Part 1 on the Sketch (“Severed Parcel”).

2The driveway access for the Retained Parcel will be on Cynthia Street, while the driveway access for the Severed Parcel will be on Wellington Street North. The minor variance applications were designed to address the non-conformance of the two proposed lots with the minimum lot area and minimum lot frontage requirements of the ZB.

3The applications were reviewed by MHBC Planning under a contract with the City and the planning report prepared by Nicolette van Oyen (“Ms. Van Oyen”) and Juliane von Westerholt (“Ms. von Westerholt”) recommended that the consent be granted subject to the conditions identified in Schedule “A” and that the two minor variance applications be authorized. (“Planning Report”) The Committee refused all three applications and confirmed that it did not agree with the views expressed in the Planning Report.

HEARING

4A hearing was held on November 30, 2022. The City did not appear, and the Applicant was self-represented. He did not arrange for the issuance of any summons for the planners who authored the Planning Report and had no planning witnesses. The Tribunal stepped down to allow him the opportunity to contact the planners who authored this report. They both graciously appeared as witnesses. Ms. Van Oyen and Ms. von Westerholt were qualified as experts in the field of land use planning and gave oral testimony regarding the applications. The Tribunal found their evidence to be clear and forthright.

5They provided the following general contextual evidence. The Subject Property is at the corner of Cynthia Street and Wellington Street North. The Consent Application D10-12-2022 (“Consent Application”) and two minor variance applications were submitted to the City by the Applicant:

1. Minor Variance Application D13-14-2022, and;
2. Minor Variance Application D13-15-2022 (collectively “the Minor Variance Applications”).

6The Minor Variance Applications sought the following relief from the minimum lot area and lot frontage requirements of the ZB:

1. Seeking relief from Provision 12.2(a) to reduce the minimum lot area of the severed parcel from 550 m2 to 284.9 m2. (“Variance 1”)
2. Seeking relief from Provision 12.2(a) to reduce the minimum lot area of the retained parcel from 550m2 to 234.4m2. (“Variance 2”)
3. Seeking relief from Provision 12.2(b) to reduce the minimum lot frontage from 15.0 metres to 9.34 for the severed parcel. (“Variance 3”)
4. Seeking relief from Provision 12.2(b) to reduce the minimum lot frontage from 15.0 metres to 7.42 metres for the retained parcel. (“Variance 4”)

THE MINOR VARIANCE APPLICATIONS AND SECTION 45(1) OF THE ACT

7In addressing the planning evidence regarding all three applications, we will first deal with whether the Minor Variance Applications comply with Section 45(1) of the Planning Act (“Act”). Ms. Van Oyen and Ms. von Westerholt presented the following planning evidence.

GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLANS

8Under the Regional Municipality of Niagara Official Plan (“ROP”), the Subject Property is within the “Urban Built – Up Area”. A range of uses including residential uses are permitted and encouraged within such areas, in a manner that makes efficient use of existing services.

9The Subject Property is designated as “Urban Living Area” within the City’s Official Plan (“COP”). The purpose of the Urban Living Area designation is to accommodate a range of residential uses and encourage intensification and the redevelopment of under-utilized lands. Section A2.4.2 of COP outlines objectives for urban character in the City, which include:

• To respect the character of stable residential areas and only support applications for new development that are physically compatible with the character of the surrounding neighbourhood; and,
• To maintain and enhance the character and stability of existing and well- established residential neighbourhoods by ensuring that development and redevelopment is compatible with the scale and density of existing development.

10The proposed variances would allow for intensification and infilling in an existing established neighbourhood that contains a variety of low-rise residential dwellings and apartment buildings. Several smaller lots have been created within proximity to the Subject Property, the proposed lots are consistent with those lots, and the proposed development is in keeping with the existing neighbourhood. In the view of both planners the requested variances would maintain the general intent and purpose of both ROP and COP.

GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW

11Variances 1 and 2 request reductions in the lot area for both the Severed Parcel and Retained Parcel. Given that no additional development is proposed on the Retained Parcel where the existing house is located and side yard setbacks can be met, the requested reductions in the lot area will have no impact to adjacent properties.

12Variance 3 and Variance 4 deal with the reduced lot frontages for both the Severed and Retained Parcels. The reduced lot width for the Severed Parcel is in keeping with other properties developed along Wellington Street and will permit the required side yards for both lots to be in conformity with the ZB. This will provide appropriate access to rear yards, distance between dwellings and provide adequate space for drainage. No negative impacts to the subject lands or adjacent properties are anticipated.

13The proposed reduction in lot width for the Retained Parcel recognizes the existing condition. The current dwelling will remain with a setback of 0.37 metres (“m”) from the front lot line along Cynthia Street. Cynthia Street is a local road and no adverse impacts to the functionality of this road are anticipated.

14The planners were of the view that the requested variances would maintain the general intent and purpose of the ZB.

DESIRABILITY

15The planners also expressed the view that variances are appropriate for the development of the land. Despite the reduced lot area resulting from the proposed variances, both lots will have driveway access and sufficient private amenity space. Similarly, the reduced frontages will not impact access to the rear of the lots or result in inappropriate side yards.

MINOR

16The planners advised the Tribunal that no negative impacts are anticipated from the requested variances, and they are considered to be minor. The continued residential use on the Retained Parcel and the new residential development on the Severed Lot will be compatible with the development in the area.

REVIEW OF THE CONSENT APPLICATION

17Ms. Van Oyen and Ms. von Westerholt presented the following planning evidence regarding conformance of the consent application with the TOP and Section 51(24) of the Act.

THOROLD OFFICIAL PLAN (“TOP”)

18Under the TOP, proposals for new lots must be assessed against the criteria in Policy D4.2.1 which states:

New lots by consent

D4.2.1 General Criteria

Prior to considering an application to create a new lot for any purpose, the Committee of Adjustment shall be satisfied that the proposed lot:

a) Fronts on and will be directly accessed by a public road that is maintained on a year-round basis; b) Will not cause a traffic hazard as a result of its location on a curve or a hill; c) Is in keeping with the intent of relevant provisions and performance standards of the Zoning By-law; d) Can be serviced with an appropriate water supply and means of sewage disposal; e) Will not have a negative impact on the drainage patterns in the area; f) Will not compromise the ability to develop the remainder of the lands, if such lands are designated for development by this Plan; g) Will not have a negative impact on the features and functions of any environmentally sensitive feature in the area; h) Conforms with the Regional lot creation policy as articulated in the Regional Official Plan, and the lot creation policies of the NEP, where applicable; and, i) Complies with Provincial Minimum Distance Separation Formulae, where applicable.

19The planners reviewed and addressed each of the relevant criteria as follows. They advised that both the Severed Parcel and Retained Parcel front onto an existing public road; would utilize existing municipal services; and would not cause negative impacts in terms of traffic or drainage. With respect to conformance with the ZB, the planners were of the view that if the minor variance applications are authorized the consent application will conform with the requirements of Policy D4.2.1 of the TOP.

[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

20The planners also reviewed the relevant criteria regarding consents under Section 51(24) of the Act. In their view, the proposed lots conform to the ROP and TOP, the property is suitable for severance, lot sizes and configurations are of a similar size and lot configuration to existing lots in the area, are consistent with the established lot fabric, are suitable for the proposed residential use, there are adequate utilities, municipal services and schools, and the proposed development improves upon the efficient use of public services.

21The proposed conditions in Schedule “A” were also reviewed with the Tribunal. The planners confirmed that if the minor variance applications are authorized condition 5 can be dropped and a correction to the percentage identified in condition 4 which should be identified as 5% and not 3%. They confirmed that the conditions as set out in Schedule “B” are fair and reasonable having regard to the proposed development.

THE PPS AND THE GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE

22Ms. Van Oyen and Ms. von Westerholt finally provided their views on consistency of the applications with the Provincial Policy Statement (2020) (“PPS”) and conformance with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019) (“Growth Plan”).

23The subject lands are within a “settlement area” according to the PPS. Settlement areas are to be the focus of growth and development. The Growth Plan also directs development to settlement areas. Within settlement areas, the Growth Plan states that growth will be focused in “built-up” areas. The planners were of a view that the applications will facilitate development in a settlement area consistent with the PPS and a built-up area in conformance with the Growth Plan.

24The Tribunal accepts the evidence of Ms. Van Oyen and Ms. von Westerholt and finds that the Minor Variance Applications comply with the requirements of subsection 45(1) of the Act. They are minor, desirable for the use and development of the Subject Property and maintain the general intent and purpose of both the applicable official plans and the ZB.

25The Tribunal accepts the evidence of Ms. Van Oyen and Ms. von Westerholt and finds that consent application conforms with the ROP and TOP and complies with Section 51(24) of the Act. The conditions set out Schedule B are reasonable.

ORDER

26THE TRIBUNAL ORDERS that the appeal is allowed:

1. the variances to Comprehensive Zoning By-law 2140 (97) are authorized, and;
2. the provisional consent is to be given subject to the conditions set out in Schedule B to this Order.

“A. Cornacchia”

A. CORNACCHIA 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.

SCHEDULE A

CONDITIONS

1. That the applicant provides the Secretary-Treasurer with a legal description, acceptable to the Registrar, of the subject parcel, together with a copy of the deposited reference plan, if applicable, for use in the issuance of the Certificate of Consent.
2. That the owner provides a lawyer’s undertaking, to the satisfaction of the City, to forward a copy of documentation confirming the transaction has been carried out, the document to be provided within two years of issuance of the consent certificate, or prior to the issuance of a building permit, whichever occurs first.
3. That a final certification fee of $190 payable to the City of Thorold, be submitted to the Secretary-Treasurer and that all conditions of consent be fulfilled.
4. That the payment of 2% of the value of the new lot, being Part 1 as illustrated on Figure 2, be made to the City of Thorold in lieu of dedication of land for park purposes pursuant to Section 53(13) of the Planning Act, R.S.O. 1990, as amended.
5. That the applicant obtains minor variance approval from the Committee of Adjustment from Section 8.3 in Zoning By-law 2140 (97) for reduction of minimum lot area and frontages.

SCHEDULE B

CONDITIONS

1. That the Applicant provides the Secretary-Treasurer with a legal description, acceptable to the Registrar, of the subject parcel, together with a copy of the deposited reference plan, if applicable, for use in the issuance of the Certificate of Consent.
2. That the owner provides a lawyer’s undertaking, to the satisfaction of the City, to forward a copy of documentation confirming the transaction has been carried out, the document to be provided within two years of issuance of the consent certificate, or prior to the issuance of a building permit, whichever occurs first.
3. That a final certification fee of $190 payable to the City of Thorold, be submitted to the Secretary-Treasurer and that all conditions of consent be fulfilled.
4. That the payment of 5% of the value of the new lot, being Part 1 as illustrated on Figure 2, be made to the City of Thorold in lieu of dedication of land for park purposes pursuant to Section 53(13) of the Planning Act, R.S.O. 1990, as amended.