Courtney Valley Estates Inc. v. Whitchurch-Stouffville (Town), 2022 CanLII 32477

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 19, 2022

CASE NO(S).: OLT-21-001346

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

Applicant: 2247322 Ontario Inc.

Appellant: Courtney Valley Estates Inc and Lillipad Development Inc.

Subject: Minor Variance

Variance from By-law No: 2010-001-ZO

Property Address/Description: 12637 Tenth Line

Municipality: Town of Whitchurch-Stouffville

Municipal File No.: CA-21-28 (A21/21)

OLT Case No.: OLT-21-001346

OLT Lead Case No.: OLT-21-001346

OLT Case Name: Courtney Valley Estates Inc. v. Whitchurch-Stouffville (Town)

Heard: January 24, 2022 by video hearing

APPEARANCES:

Parties

Counsel

2247322 Ontario Inc.

B. Engell

Courtney Valley Estates Inc and Lillipad Development Inc.

J. Meader

DECISION DELIVERED BY N.P. ROBINSON AND ORDER OF THE TRIBUNAL

OVERVIEW

1The Applicant, 2247322 Ontario Inc. proposes to build a retirement home (“Development") at 12637 Tenth Line, Part of Lot 3, Concession Road 10 (“Subject Property”) in Whitchurch-Stouffville (“Town”) in the Regional Municipality of York. The Applicant sought and received authorization for a minor variance from the Town. The Appellants, Courtney Valley Estates Inc. and Lillipad Pad Developments Inc. appealed the minor variance authorization on grounds that the Applicant stands to benefit from services being front ended by them, and that the costs thereof ought to be included as a condition of approval of the minor variance.

2The Subject Property is approximately 20,517.4 square metres (2.5 hectares) in lot area, and lot frontage of 76.4 metres on Tenth Line and is located on the east side of Tenth Line, north of Forsyth Farms Drive. There is currently a 10,086.5-square metre mixed-use building on the Subject Property including a medical office, day-care and an apartment residence. There are no proposed changes to the existing building on the Subject Property.

3Provisional Consent was granted for the property on February 12, 2020 by the Committee of Adjustment (“Committee”) to create one new lot fronting Tenth Line.

4The Applicant proposes to construct a six-storey retirement home consisting of 130 units on the retained lands. The proposed building will be 10,952.5 square metres in size. The proposed Development has been slightly revised in both Gross Floor Area (“GFA”) and height since the applications that were brought before the Committee in February 2020, and January 2021 increasing the maximum Floor Space Index (“FSI”) to 1.66.

5The minor variance in question affects only the FSI calculation and does not materially change any of the considerations with respect to cost sharing matters. There has been no material change to the use, number of units, location, size and footprint. The minor variance does not trigger any increased need for or demand on services.

6Town Staff recommended that the request for minor variance be granted subject to conditions and concluded that:

1. The variance maintains the intent of the Town’s Official Plan;
2. The variance maintains the intent of the Comprehensive Zoning By-law No. 2010-001-ZO;
3. The variance is desirable for the appropriate use of the lands; and,
4. The variance is minor in nature.

7The Town Staff Report recommended the following condition in relation to the Applicant’s obligation to use best efforts:

That the Owner agree in the Site Plan Agreement to enter into a cost-sharing Agreement with Courtney Valley Estates Inc. and Lillipad Development Inc. related to any services, roads, and right-of-way that they will benefit from to be constructed or financed by Courtney Valley Estates Inc. and Lillipad Development Inc.;

8The Committee did not impose the requested condition despite the Appellants’ request and Town Staff’s recommendation thus leading to the within appeal to the Tribunal.

ISSUES

9The central issue of this appeal concerns whether the test elaborated at s. 45(1) of the Planning Act is satisfied. More particularly, the Appellants contend that the absence of a cost sharing condition has the effect of nullifying the desirability of the minor variance authorized as described in s. 45(1) of the Planning Act.

10Despite the fact that the appeal was lodged under s. 45(12) of the Planning Act, closing submissions from the Appellants make few references to the relevant official plans and by-laws. The thrust of the Appellants’ argument concerns whether the minor variance authorized is desirable for the appropriate development in circumstances where a cost sharing condition is not imposed.

11The Appellants argue that, without a cost sharing condition, the minor variance is no longer desirable and thus fails on that leg of the test. More particularly, the Appellants assert that:

the application is not desirable for the appropriate use of the land and therefore fails at least one of the four tests set out in section 45(1) of the Planning Act. This test considers whether an application is desirable from a planning and public interest point of view. It is not in the public interest to allow a development to evade its fair share of servicing costs and the efficient use of existing services.

12Conversely, the Applicant asserts that the cost sharing is not a consideration which properly relates to the test at s. 45(1) of the Planning Act.

13The Appellants concede that it is not opposed to the Development. The subject matter and issue that gives rise to the within appeal is thus centred on the condition for cost sharing recommended by Town Staff but not imposed by the Committee.

EVIDENCE

14The Tribunal had the benefit of testimony from two witnesses: Michael Barton, who was qualified by the Tribunal to give expert opinion evidence in the area of land use planning, and Paul Sytsma, who was qualified by the Tribunal to give expert opinion evidence in the area of development servicing with a focus on cost sharing.

15Mr. Sytsma’s evidence was centred on the prevalence of cost sharing in the development industry. He was unable to identify any instance where cost sharing was imposed as a condition of a minor variance.

16Mr. Sytsma made no reference to cost sharing calculations submitted and provided no concrete guidance to the Tribunal about what should be included in any cost sharing obligation.

17The evidence of Mr. Sytsma was helpful in establishing the importance of cost sharing but did not speak to the specific issue of the interplay between minor variance applications and cost sharing considerations.

18Mr. Barton provided evidence that the four-part test under s. 45(1) of the Planning Act had been satisfied and stated that a cost sharing condition was not appropriate.

ANALYSIS

19A minor variance appeal is the only matter before the Tribunal. Mr. Barton offered evidence that each of the four tests have been met and concluded that a cost sharing condition was not appropriate. The Appellants called no evidence whatsoever in respect of the four tests.

20Case law indicates that a condition imposed must relate to the minor variance (See: for instance, Re Texaco Canada Inc. and Guelph (City) Committee of Adjustment (1979), 10 M.P.L.R. 202 (OMB)).

21The Appellants’ own case law centres on appeals of subdivisions, consents, or site plan matters, as well as civil litigation in the Courts. The imposition of a cost sharing condition in a minor variance case is unsupported by the jurisprudence before the Tribunal.

22The Tribunal disagrees with the contention that the minor variance is no longer desirable for the appropriate development in the context of s. 45(1) of the Planning Act. The Tribunal is satisfied, with or without such a condition, that the Development is desirable under that leg of the s. 45(1) test and finds that cost sharing is not immediately relevant to the question of whether the minor variance is “desirable” in the context of that Section.

23Further, the Development at 1.47 FSI is not fundamentally changed by the requested variance to 1.66 FSI. Mr. Sytsma offered evidence that his position would be the same whether the variance is granted or not. The minor variance requested does not trigger any additional servicing requirements or burdens. As a result, the condition sought by the Appellants does not relate to the minor variance and it is not properly imposed under s. 45(3) of the Planning Act.

24The Tribunal finds that the minor variance application satisfies the four-part test under s. 45(1) of the Planning Act including the proviso that the minor variance be desirable for the appropriate development.

25The proposed Development supports the goals of intensification and encouraging affordable housing stock as elaborated in the PPS 2020 (“PPS”). Section 1.4.3 of the PPS states that planning authorities shall provide for an appropriate range and mix of housing options and densities. The Tribunal finds that the Development advances this important provincial policy objective.

26The Tribunal finds that the proposed Development maintains the general intent and purpose of the relevant Official Plans and Zoning By-laws and further finds the variance to be technical and minor in nature.

ORDER

27The Tribunal Orders that the appeal is denied.

“N.P. Robinson”

N.p. Robinson

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.