Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 22, 2022
CASE NO(S).:
OLT-21-001408
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant:
2663191 Ontario Inc.
Appellant:
Town of Oakville
Subject:
Minor Variance
Property Address/Description:
440 Tower Drive
Variance from By-law:
2014-014
Municipality:
Town of Oakville
Municipal File No.:
CAV A/133/2021
OLT Case No.:
OLT-21-001408
OLT Lead Case No.:
OLT-21-001408
OLT Case Name:
Oakville v. Oakville (Town)
Heard:
February 8, 2022 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
2663191 Ontario Inc.
Frank Mei
Town of Oakville
Dennis Perlin*
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE AND STEVEN COOKE ON FEBRUARY 8, 2022 AND ORDER OF THE TRIBUNAL
BACKGROUND
1The matter before the Tribunal is an appeal filed by the Town of Oakville (the “Town”) against the decision of its Committee of Adjustment’s (the “CoA”) decision on September 7, 2021, in relation to a minor variance from Zoning By-Law No. 2014-014 concerning 440 Tower Drive (the “Subject Property”).
2In the “original” application, 2663191 Ontario Inc. (the “Applicant”) proposes to construct a two-storey detached dwelling. The Applicant is requesting relief from Zoning By-law No. 2014-014 to permit an increase in residential floor area ratio from 41% (285.36 square metres (“m2”)) to 50.99% (354.86 m2), for an increase of 69.5 m2.
3The CoA approved the minor variance on September 7, 2021 subject to two conditions, namely: (1) that the dwelling be built in general accordance with the submitted site plan and elevation drawings dated April 28, 2020; and (2) that the approval expires 2 years from the date of the decision if a building permit has not been issued for the proposed construction, and in cases where a building permit is not required, that the proposed scope of work has not been fully completed.
4The Town filed an appeal outlining that the intent of regulating the residential floor area ratio (the “RFAR”) is to prevent a dwelling from having a mass and scale that appears larger than the dwellings in the surrounding neighbourhood:
The requested increase in residential floor area is significant given the context of the area. The second storey appears to be a replication of the first storey and results in a proposed massing that is significantly larger than other dwellings in the immediate area. It is Staff’s opinion that it is not compatible with the character of the area.
5At the outset of the hearing, the Parties advised the Tribunal that they wished to amend the application for variance and have come to a settlement (Settlement Minutes, Tab 1 of the Document Book, Exhibit 1). Since this is a de novo hearing and the amended application is a reduction in the size of the RFAR, the Tribunal was satisfied that the amendment to the application was minor and that no further notice was required pursuant to s. 45 (18.1.1) of the Planning Act. The Tribunal proceeded to hear the matter.
6The Minutes of Settlement dated January 25, 2022 between the Parties, outlined that they both agreed to settle the appeal subject to the Tribunal approval, on the basis of a significant reduction in RFAR variance to 45.99% (320.13 m2) and changes satisfactory to the Town being made in the design and layout of the proposed new two-story dwelling as set out in the Revised Site Plan and Drawings (elevations and Floorplans).
Requested Variance Original Application
7The Applicant’s original application proposes to construct a two-storey detached dwelling at the Subject Property. The Applicant was requesting relief from Zoning By-law No. 2014-014, as amended, to permit an increase in RFAR from 41% (285.36 m2) to 50.99%. (354.86 m2) for an increase of 69.5 m2.
8Section 6.4.1 of the Zoning By-law states:
The maximum residential floor area ratio for a detached dwelling on a lot with a lot area between 650.00 m² and 742.99 m² shall be 41% (285.36 m²); (Lot area is 696.0 m²).
Requested Variance Amended Application
9The Applicant’s amended application contained in the Minutes of Settlement dated January 25, 2022 proposes a significant reduction in RFAR variance to 45.99% (320.13 m2). A reduction down from the original 50.99% resulting in a new dwelling more in keeping with the character of the area, more compatible with the other homes in the area and with less impact in massing from that approved by the CoA.
LEGISLATIVE TESTS
10It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act, is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Planning Act to meet is on the Applicant/Appellant. In addition, in making a decision under the Planning Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any Provincial plans that are in effect.
11Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Planning Act, namely that the requested variances:
i. maintain the general intent and purpose of the official plan,
ii. maintain the general intent and purpose of the zoning by-law,
iii. are desirable for the appropriate development or use of the land, building or structure, and,
iv. are minor.
EVIDENCE
[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
12Catherine Buckerfield is a planner for the Town, who appeared before the Tribunal to give expert testimony. After reviewing Ms. Buckerfield’s professional qualifications and confirmation of her Acknowledgement of Expert Duties, the Tribunal qualified Ms. Buckerfield to provide expert testimony in the field of land use planning.
13Evidence presented showed the site context of the Subject Property and surrounding neighborhood. The lotting pattern, dwelling placement and separation distance between dwellings are generally uniform and consistent throughout the neighborhood. In addition, the neighborhood character consists predominately of original one and one-and-a-half storey dwellings and newly constructed two-storey dwellings that have replaced the existing housing stock.
14The Subject Property is designated “Low Density Residential” in the Livable Oakville Official Plan. The Subject Property is zoned RL3-0 (Residential Low Density) in Zoning By-law No. 2014-014.
15Ms. Buckerfield explained that after the filing of the appeal, Town Planning and Urban Design Staff, met virtually with the Applicant regarding opportunities to further modify the design of the proposed dwelling to address the Town’s planning concerns with the original application.
16As a result of the discussion, the Applicant modified the design of the proposed new dwelling in a manner which reduced the massing and scale of the proposed new dwelling and its impact on the streetscape, making it more compatible with the neighborhood which is reflected in the site plan and elevation drawings, dated January 17, 2022 (the “Revised Design”) (see Tab 16 in the Document Book, Exhibit 1). The Revised Design according to Ms. Buckerfield included a porch at the front to the residence which breaks up the massing and which is in line with the Urban Design Guidelines. In addition, the setbacks at the rear and side elevations allow for an improved transition with the surrounding area.
17The Applicant, in keeping with the Revised Design, then amended the original application resulting in the site plan, elevation drawings and floor plans (Tab 16 of the Document Book) and reduced the minor variance request to 45.99% (320.13 m2). which results in an increased residential floor area of 34.77 m2.
18It is the opinion of Ms. Buckerfield that the revised application has regard to provincial Interest aspect of s. 2 of the Planning Act, that the Revised Design and application does not offend and is keeping with the provincial interests set out in s. 2 of the Planning Act, specifically (h),(n),and (r ):
(h) the orderly development of safe and healthy communities;
(n) the resolution of planning conflicts involving public and private interests;
(r) the promotion of built form that,
(i) is well-designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant.
19Ms. Buckerfield testified that the Revised Design and amended application is specifically in keeping with s. 2 (h), (n) and (r) of the Planning Act as mentioned above in that it results in a dwelling that fits within the neighborhood community; the Town and Applicant have come to a resolution that results in a more desirable outcome; and it results in a well-designed built form that compliments the character of the surrounding area.
Provincial Policy Statement, 2020
20In relation to the PPS, Ms. Buckerfield submitted, that according to s. 3(5) of the Planning Act, the proposal is consistent with the policies of the PPS. The preamble sets out that Municipal Official Plans are the most important vehicle for implementation of the PPS, which is achieved, in part, through appropriate land use designations. It is her opinion that the proposal conforms to the Official Plan and is subsequently consistent with the PPS. Additionally, under Policy 1.0, the PPS encourages the use of existing infrastructure and a range of housing options including single detached dwellings which is occurring through the redevelopment of the Subject Property.
Growth Plan for the Greater Golden Horseshoe, 2020
21In relation to s. 3(5) of the Planning Act, evidence by Ms. Buckerfield, satisfied the Tribunal that the proposed development conforms with and does not conflict with the policies of the 2020 Growth Plan, noting that the Subject Property are located within the Built-Up Area of the Settlement Area and according to Policy 2.2.1(2)(d), development is directed to Settlement Areas.
Region of Halton Official Plan
22Ms. Buckerfield stated the application conforms to the policies of the Region of Halton Official Plan noting that the lands are designated Urban Area and meets the objectives of section 72, which outlines the objectives of the Urban Area such as accommodating growth in accordance with the Region’s desire to retain local community identity. It also satisfies section 86(11) which states that it is the policy of the Region to permit intensification of land use for residential purposes such as infill, redevelopment, and conversion of existing structures provided that the physical character of existing neighborhoods can be maintained.
General Intent and Purpose of Livable Oakville Official Plan Test
23Ms. Buckerfield submitted that the Livable Oakville Plan is the local Official Plan for the Town that is in effect for the Subject Property. The language used in the residential properties include Character, Compatible and Development with each of their own specific definitions. The Revised Design and amended application is consistent with objectives for all Residential Areas in section 11 of the Official Plan. The Subject Property is zoned RL3-0 (Residential Low Density) under Zoning By-law No. 2014-014, which permits a maximum height of 9 metres and two storeys as-of-right. The underlying zoning allows for a shift to two storey dwellings and does not require one-storey homes to be maintained, which results in two storey dwellings being consistent with the intent for the area. The Revised Design is sympathetic to the character of the existing stable residential community.
24Regarding section 11.2 of the Official Plan’s policies referencing permitted uses and densities for the entire Low Density Residential designation, Ms. Buckerfield highlighted section 11.1.9 development within all stable residential communities shall be evaluated using the following criteria to maintain and protect the existing neighbourhood character, namely:
(a) The built form of development, including scale, height, massing, architectural character, and materials, is to be compatible with the surrounding neighborhood.
(b) Development should be compatible with the setbacks, orientation, and separation distances within the surrounding neighbourhood.
(h) Impacts on the adjacent properties shall be minimized in relation to grading, drainage, location of service areas, access and circulation, privacy, and microclimatic conditions such as shadowing.
25Ms. Buckerfield explained the Town has endorsed the Urban Design Guidelines for Stable Residential Communities to help direct new development and reduce its impacts on existing stable residential Communities. Ms. Buckerfield highlighted the most applicable guidelines:
Section 3.1.1 Character
- New development should be designed to maintain and preserve the scale and character of the site and its immediate context and to create compatible transitions between the new dwelling and existing dwellings in the surrounding neighbourhood.
Section 3.1.3 Scale
- New development should not have the appearance of being substantially larger than the existing dwellings in the immediate vicinity. If a larger massing is proposed, it should be subdivided into smaller building elements that respond to the context of the neighbourhood patterns.
Section 3.2.1 Massing
- New development, which is larger in overall massing than adjacent dwellings, should be designed to reduce the building massing through the thoughtful composition of smaller elements and forms that visually reflect the scale and character of the dwellings in the surrounding area. This design approach may incorporate:
projections and/or recesses of forms and/or wall planes on the façade(s)
single-level building elements when located adjacent to lower height dwellings
variation in roof forms
subdividing the larger building into smaller elements through additive and/or repetitive massing techniques
porches and balconies that can reduce the verticality of taller dwellings and bring focus to the main entrance
architectural components that reflect human scale and do not appear monolithic
horizontal detailing to de-emphasize the massing
variation in building materials and colours.
Section 3.2.3 Setbacks
New development should be compatible with the character of the existing dwellings by maintaining the established front yard setback patterns and side yard setback patterns along the street edge. There may be instances when the established front yard setback can be slightly varied due to specific site constraints.
26Evidence submitted that applying sections 3.1.1 (character), 3.1.3 (scale), 3.2.1 (massing) and 3.2.3 (setbacks) of the Design Guidelines to the Revised Design in the amended application mitigates the massing impacts on the abutting residential properties and streetscape by sculpting the dwelling in a manner which is sympathetic to the character of the neighbourhood, resulting in a dwelling which is compatible with the neighbourhood. The Revised Design has improved the urban design of the structure by stepping back portions of the second storey and introducing one-storey elements (Tab 17 Book of Documents includes a comparison of the plans and the detailed revisions).
27Evidence showed the Revised Design in the amended application provides a thoughtful consideration to introduce the two-storey built form (which is permitted as-of-right) through the improved urban design of the structure, while incorporating an increase in floor area ratio. Subsequently, this results in a dwelling that maintains and protects the neighborhood character and assists in maintaining a similar mass and scale for the new dwelling as if built in compliance with the Zoning By-law and as found in the surrounding neighborhood. Therefore, the variance in the amended application maintains the general intent and purpose of the Official Plan and is consistent with the Urban Design Guidelines for Stable Residential Communities.
28Evidence regarding the Appropriate Development or Use of Land Test, the Revised Design mitigates the impacts of additional massing along the streetscape and onto abutting properties in a manner which is sympathetic to and compatible with the character of the neighbourhood, and as such, the requested variance is desirable for the appropriate development of the land. In addition, the variance is minor in nature as the Revised Design mitigates the impacts of additional massing and would not present unacceptable adverse impacts onto the abutting properties or the streetscape.
FINDINGS
29In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided Ms. Buckerfield. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is satisfied that the revised application for the minor variance meets the prescript four-tests.
30The Tribunal finds that the variance maintains the general intent and purpose of the Region of Halton and Liveable Oakville Official Plans and Zoning By-Law with no adverse impacts and is desirable resulting in a suitable dwelling within a residential area.
31The Applicant’s Revised Design in the amended application specifically, the significant reduction in RFAR variance to 45.99% (320.13 m2). A reduction down from the original 50.99% resulting in a new dwelling more in keeping with the character of the area, more compatible with the other homes in the area and with less impact in massing. The Revised Design of the dwelling specifically with a RFAR variance of 45.99% are considered minor.
32The Tribunal finds that the requested variance is desirable and has regard for matters of provincial interest under the Planning Act and is consistent with the PPS, specifically the safe and healthy communities, the resolution of planning conflicts involving public and private interests; the promotion of built form that, is well-designed, encourages a sense of place and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.
ORDER
33The Tribunal Orders that the appeal is allowed in part, and the following variance to By-Law No. 2014-014, as amended, to permit an increase in Residential Floor Area Ratio of the detached dwelling from 41% (285.36 m2) to 45.99% (320.13 m2) for an increase of 69.5 m2 subject to the following conditions:
That the proposed dwelling be constructed in general accordance with the submitted site plan and drawings (elevations and floor plans) as set out in Attachment “1”, dated January 17, 2022;
That any approval expires two and half (2 ½) years from the date of the decision by the Ontario Land Tribunal if a building permit has not been issued for the proposed construction.
“Eric S. Crowe”
ERIC S. CROWE
MEMBER
“Steven Cooke”
Steven cooke
VICE-CHAIR
Ontario Land Tribunal
Website: www.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.
OLT-21-001408 – Attachment 1