Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 21, 2022 CASE NO(S).: OLT-21-001199
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Church of Higher Consciousness Subject: Severance Property Address/Description: 142 Second Street Municipality: Welland Municipal File No.: B007/2021WELL OLT Lead Case No.: OLT-21-001199 OLT Case No.: OLT-21-001199 OLT Case Name: Church of Higher Consciousness v. Welland (City)
Heard: January 27, 2022 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Michelle Febers | Douglas Thomas* |
| Church of Higher Consciousness | Daniele Tronko |
DECISION DELIVERED STEVEN COOKE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was an appeal under s. 53(19) of the Planning Act (“Act”) for the approval of a consent by the Committee of Adjustment (“CofA”) in the City of Welland (“City”) for the property municipally know as 142 Second Street (“Subject Property”).
2Michele Febers (“Applicant”) proposes to convey 585.8 square metres (“sq m”) of land and retain 716.2 sq m of the Subject Lands. The Church of Higher Consciousness (“Appellant”) has appealed the decision of the CofA on the grounds that the application if approved, would change the nature of the surrounding neighbourhood and could not conform to the existing zoning by-laws.
PLANNING EVIDENCE
3Rachelle Larocque was summonsed to appear before the Tribunal as an expert in Land Use Planning. Ms. Larocque is currently the Manager of Planning for the City. After review and conformation of the signed Acknowledgment of Experts Duty the Tribunal qualified Ms. Larocque to give expert opinion evidence.
4Ms. Larocque described the Subject Property as a single detached dwelling that is zoned Institutional 1 (“INS1”) in the City Official Plan (“COP”) located in the Plymouth Road and Second Street area. The Subject Property is surrounded by lands being used for institutional uses the includes places of worship and schools. To the west of the Plymouth Road is predominately low density detached or semi-detached residential dwellings.
5Under the Provincial Policy Statement, (“PPS”) the Subject Property is located within a designated settlement area and a Built-Up area under the Growth Plan (“GP”). The Regional Official Plan (“ROP”) defines the Subject Property as being part of the City urban area. Ms. Larocque testified that the creation of a new infill lot meets the criteria of Provincial policies, ROP, and the COP. The GP directs that growth is to be within the Built-Up Area.
6Ms. Larocque informed the Tribunal that the Section 7.9 of the COP contains the policies for consideration when evaluating an application of consent. In addressing Section 7.9 of the COP Ms. Lacroque gave evidence that the application has met the requirements by:
7.9 i) The proposal for the creation of one new lot in a Built Up area is consistent with the COP particularly with the infill and urban intensification policies.
7.9 ii) The Tribunal was informed that the application complies and exceeds the minimum requirements in the Zoning By-law. The Subject Property is not located within a Secondary Plan.
7.9 iii) The COP requires that a plan of subdivision is required when there is an application for the creation of three or more lots. As the proposed consent is seeking the creation of one lot it was the opinion of Ms. Larocque that a plan of subdivision is not required.
7.9 iv) The Tribunal was informed by Ms. Larocque that the creation new lot was comparable in size and shape to other residential lots in the area. The Subject Property would create a new 585.8 sq m rectangular shaped lot while retaining a 716.2 sq m rectangular shape lot. Therefore, the size and shape of the lots would be appropriate.
7.9 v) In addressing is the lot has road access, Ms. Larcoque informed the Tribunal that the complete frontage of the of both lots would have direct access to a municipally maintained road.
7.9 vi) In the opinion of Ms. Larcoque the creation of the proposed new lot would impact or prohibit the potential development of the adjacent lots.
7.9 vii) As the Subject Property has no natural features on it, it was the opinion of Ms. Larocque that the approval of the consent has no impact to the existing natural environment.
7.9 viii) In the testimony of Ms. Lacroque, that as an infill created lot it would take advantage of existing municipal infrastructures and supported by a public transit bus route in the immediate area.
7Ms. Larocque noted that the City staff had recommended the approval to the CofA with four conditions to be met before the final approval be granted. The CofA added a fifth condition that the recommended conditions must be complete to the satisfaction of the City staff within a year of the issuance of the CofA decision.
8On behalf of the Appellant, Ms. Tronko questioned whether or not a new residential dwelling conforms with the INS1 zoning by-law. Ms. Larocque stated that at this time the only request from the Applicant was only for the consent and no application for a new build was being considered. She explained that a single detached residential dwelling is an appropriate use under the INS1 zoning. Should the Applicant decide to create a residential dwelling on the newly create lot it must conform to the INS1 zoning by-law, or the Applicant will be required to request a variance.
9It was the opinion of Ms. Larocque that the application of consent does not change the nature of the neighbourhood, is efficient use in a Built-Up urban area, and should be considered good land use planning.
COST
10On behalf of the Applicant, Mr. Thomas stated that his client may be seeking costs directly from Ms. Tronko. It is his position that the Church of Higher Consciousness is an empty shell, with no proof of bank accounts, or activity of its board of directors, and the true Appellant in this matter is Ms. Tronko.
11The Tribunal has received proof of incorporation for the Church of Higher Consciousness and is satisfied that it is the Appellant. It is not within the jurisdiction of the Tribunal to determine its legitimacy.
12The Tribunal advised the parties that under s. 23 of the Ontario Land Tribunal Rules of Practice and Procedures, a party may make written request for costs within 30 days of issuance of the Order.
FINDINGS AND ANALISYS
13In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided Ms. Lacroque. The Tribunal is persuaded by the evidence that the proposal promotes efficient development of land, utilizes existing municipal infrastructure and public transit, does not change the character of the neighbourhood, and in particular, directs intensifies uses within the Built-up Area as desired by the City.
14The Tribunal finds that the proposal is consistent with the policy direction established by the PPS, and conforms to the relevant directives established by the GP, and as maintained by the ROP and COP. The Tribunal is further satisfied that the proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and is in the greater public interest. More significantly, the proposal furthers the goals and objectives of the Provincial planning regime to utilize infill projects within an existing settlement area.
15The Tribunal accepts the evidence of Ms. Larcoque, that under the COP, a plan of subdivision is required if there is a creation of three or more new lots. As the application has met the requirement of the COP s. 7.9 iii) there is not a requirement of a plan of subdivision, The Tribunal is satisfied that based on the evidence and consideration of the COP, the application is not premature and a plan of subdivision is not necessary for the proper and orderly development of the municipality pursuant to s. 53 (1) of the Act. Furthermore, the Tribunal is satisfied that the application has regard for the criteria set out under s. 51(24) of the Act.
16In the decision of the CofA the Applicant was given conditions to be complete to the satisfaction of the City staff by June 17, 2022. The Tribunal in its Order will reiterate the conditions but has extended the deadline to be completed by Friday, December 16, 2022.
ORDER
17THE TRIBUNAL ORDERS that the appeal is dismissed, and the provisional consent is to be given subject to the following conditions:
That the garage shown partially on Parts 1 and 2 on the sketch either be removed, or be placed wholly on Part 1 in compliance with all Zoning By-law Requirements, to the satisfaction of the City of Welland, Planning Division.
The Applicant shall prepare a servicing drawing encompassing Part 1 and 2 of the subject property, and obtain approval from the Engineering Division. The drawing must show the location of the existing service is contained within Part 1 of the subject property, based on the proposed lot boundaries.
That the Secretary-Treasurer be provided with a registered registerable legal description of the subject parcel, together with a copy and a digital copy of the Deposited Reference Plan, if applicable, for use in is issuance of this Certificate of Consent.
Confirmation of payment of outstanding taxes to the satisfaction of the City of Welland, Finance Division.
That all conditions of consent are to be fulfilled on or before Friday, December 16, 2022.
“Steven Cooke”
STEVEN COOKE
VICE-CHAIR
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.