Trevor Digby v. City of Peterborough, 2022 CanLII 42272

Ontario Land Tribunal

ISSUE DATE: May 18, 2022

CASE NO(S).: OLT-21-001380

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Trevor Digby

Subject: Application to amend Zoning By-law No. 1997-123 – Neglect of the City of Peterborough to make a decision

Existing Zoning: Residential “R.1, 1m, 2m”

Proposed Zoning: Special District 295 (SP.295)

Purpose: To permit the rezoning of the subject lands to allow a second one-bedroom apartment in an accessory building

Property Address/Description: 670 Hastings Avenue

Municipality: City of Peterborough

Municipality File No.: Z2003

OLT Case No.: OLT-21-001380

OLT Lead Case No.: OLT-21-001380

OLT Case Name: Digby v. Peterborough (City)

Heard: April 27, 2022, by video hearing

APPEARANCES:

Parties	Counsel
Trevor Digby	J. Khoury-Hanna
City of Peterborough	A. Barber

MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER AND D. CHIPMAN ON APRIL 27, 2022 AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter had been scheduled for a three-day hearing commencing on April 27, 2022, to consider the Appeal by Trevor Digby (the “Appellant”) under s. 34(11) of the Planning Act (“Act”) due to the City of Peterborough’s (the “City”) non-decision on the Application for a zoning by-law amendment to the City’s Zoning By-law No. 1997-123 (“ZBL”).

2The Tribunal was recently advised that a settlement had been reached between the Parties and were now seeking an order of the Tribunal, approving the Zoning By-law Amendments (“ZBA”).

3The Subject Property is municipally known as 640 Hastings Avenue in the City.

SITE CONTEXT

4The Subject Property is located within the mid portion of the City and is the fourth property located on the north side of Hastings Avenue, approximately 36 metres west of Albertus Avenue. Hastings Avenue is a short (approximately 100 metres in length) dead end street that terminates at an informal cul-de-sac made up of single and two-storey detached homes.

5The road allowance width 20.12 metres runs generally in an east-west direction, curving toward the southwest and is accessible only from Albertus Avenue, a local street that runs in a north-south direction. Albertus Avenue connects to Charlotte Street, an arterial street located approximately 95 metres north of Hastings Avenue, to numerous local streets in the area, and to Sherbrooke Street, another arterial street, approximately 240 metres south of Hastings Avenue.

6There is a City-owned laneway with a width of approximately 3.66 metres at the rear of the property, which provides rear access to a number of buildings. While this is a municipally owned lane, it is not maintained by the City. Landowners are responsible for the maintenance and upkeep of the lane.

7The immediate neighbourhood is predominantly zoned for single detached dwellings and is developed primarily with one and two-storey single detached dwellings. At the rear of the property, across the municipally owned laneway, there is a legal non-conforming structure which extends into the laneway.

8Within walking distance there is public transit, commercial establishments as well as a nearby school.

PROPOSAL

9The Subject Property is currently zoned as R.1, 1m, 2m – Residential District which permits a single dwelling unit use on a lot of 15 metres in width, and with a lot area of 450 square metres.

10The proposed ZBA requests an increase to the number of dwellings units from one to three in total, which will be contained within the two existing buildings on the site. The south building being the current home would contain one dwelling unit and the existing accessory building on the north part of the property would allow for an additional one-bedroom unit to the already existing one-bedroom dwelling located in the lower-level.

11The Application is seeking to amend the current R.1, 1m, 2m – Residential District zoning to a “Modified” SP.295 – Special District (Residential) designation to allow the third dwelling on site. This designation has been used in other locations throughout the City.

PLANNING EVIDENCE

12The Tribunal heard land use planning opinion evidence from both Messrs. Duguay and Appleby. Both witnesses were qualified by the Tribunal to provide a detailed contextual and land use planning rationale to support the Settlement.

13The Tribunal entered the signed Minutes of Settlement as Exhibit 3.

14Mr. Duguay described the proposal’s regard for matters of Provincial interest; consistency with the Provincial Policy Statement (“PPS”) (both the 2014 PPS and the 2020 PPS); conformity with A Place To Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), as well as conforming with the City Official Plan (“OP”).

15The Tribunal heard that the proposed ZBA is consistent with the directives of the 2014 PPS. Mr. Duguay took the Tribunal through the specific policies including s. 1.1.1(b) accommodating an appropriate range and mix of residential (including second units, affordable housing and housing for older persons); s. 1.1.3 Settlement Areas making efficient use of land and s. 1.1.6 making use of municipal infrastructure.

16The Tribunal heard that the proposal conforms to the 2019 Growth Plan through s. 2.2.1 Managing Growth as the proposal is withing the delineated built boundary area, is serviced by public transit, is within a settlement area and will assist in achieving a complete community.

17Mr. Duguay provided his opinion on how the ZBA has relevance to the following policies of the City OP:

Section 2.1.7 – Residential development shall endeavour to make Adequate Accommodation available to all socio-economic groups at an affordable price and to integrate a variety of forms and costs of housing. The location of housing shall be co-ordinated with community facilities such as transportation routes, parks and open space, retail shopping areas, recreation facilities, schools and other private and public facilities.

Section 2.4.1 – Growth Management Goal:

• Provide for the efficient use of urban land resources through the planning of appropriate greenfield development, intensification and redevelopment opportunities and provision of adequate densities and mix of land uses that promote a compact urban form.

Section 2.4.2 – Growth Management Objectives:

d) Provide sufficient land to accommodate and appropriate range and mix of employment opportunities, housing and other land uses to meet projected needs for the Official Plan timeframe.

18Mr. Duguay opined that the ZBA meets the general intent and purpose of the ZBL by amending the ZBL to the “Modified” SP.295 – Special District (Residential). This will allow the use/development of the property that is comparable to other area properties found within the City containing multiple dwelling units on a given site, which supported by a full range of municipal infrastructure, services and facilities within the built boundary of the City in close proximity to the downtown core.

19Mr. Appleby stated his interests in the Application, in so far as appropriate measures to meet Fire Code standards has been satisfied through the conditions which have been included in the proposed Draft Order (Exhibit 5). This includes the requirement of the installation of residential sprinkler system as access for emergency vehicles to the rear two-dwelling unit structure closest to the laneway that maybe encumbered.

20When questioned by the Panel on parking requirements, Mr. Appleby was satisfied that parking would be sufficient on site. Questions regarding the turning radius for tenants of the rear units was adequate however, should there be any issues, tandem parking in the driveway facing Hastings Avenue would allow the required number of spaces. He concluded by stating that parking is addressed in the Minutes of Settlement to the satisfaction of the City.

FINDINGS AND DISPOSITION

21Based on the evidence, the Tribunal accepts the planning evidence and opinions of both Messrs. Duguay and Appleby. The Tribunal finds the proposed Settlement, subject to the conditions as agreed upon by the Parties, has regard to matters of Provincial interest; has regard to the decision of Council as now reflected in the approved settlement and to information before Council. The proposal is consistent with both the 2014 and the 2020 PPS, conforms to the GP and to the OP and represents an efficient form of land use and represents good planning.

INTERIM ORDER

22THE TRIBUNAL ORDERS THAT the appeal is allowed in part on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in items 1, 2, 3 and 4 listed below and the Zoning By-law Amendment set out in Exhibit 5 to this Interim Order, is hereby approved in principle.

23The Tribunal will withhold the issuance of its Final Order contingent upon confirmation by the City of Peterborough Solicitor to the Tribunal that the following pre-requisite matters have been satisfied:

1. The Appellant will:

a. Provide to the City of Peterborough an updated site plan drawing, showing:

i. The location of all existing structures on the subject lands relative to property lines, all of which have been confirmed by an Ontario Land Surveyor;

ii. The location of the existing structure located at 641 Charlotte Street, which is adjacent to the City-owned laneway relative to the Appellant’s property lines and to the City-owned laneway, all of which have been confirmed by an Ontario Land Surveyor; and

iii. The location and sufficiency of a fire access route from Hastings Avenue to the proposed two-unit dwelling.

b. Through the Appellant’s planning consultant, provide a turning radius template for the on-site parking (east and west parking spaces, accessed from the City-owned laneway) based on the updated site plan drawing demonstrating, to the City’s satisfaction, the appropriateness of granting relief under either Section 4.3.1(b)(i) or Section 4.3.1(b)(ii) of By-law No. 97-123;

c. Provide a residential sprinkler system that complies with the requirements of NFPA 13D or install such other alternate solutions as the Appellant may submit and the Chief Building Official may approve; and

d. Provide satisfactory confirmation to the City’s Building Division concerning the floor area of the existing lower unit and the proposed upper unit in the proposed two-unit dwelling.

2. Once a determination has been made about the appropriateness of relief under either Section 4.3.1(b)(i) or Section 4.3.1(b)(ii) of By-law No. 97-123, that By-law XXX as set out in Attachment 1 to this Order has been amended to reflect such determination.

3. By-law XXX shall be approved following the Appellant submitting proof that he has fulfilled his obligations under:

a. Section 1(a) and (b) of this Order, to the City’s Planner, Urban Design; and

b. Section 1(c) and (d) to the City’s Chief Building Official.

4. The amended zoning designation for 670 Hastings Avenue shall include a Holding Symbol (H), which will restrict the Appellant from creating and permitting the occupancy of the upper unit in the proposed two-unit dwelling, but not prevent the Appellant from obtaining a building permit to fulfill his obligations under Section 1(c) above. The Holding Symbol shall be removed once the following conditions have been met:

a. The Appellant shall enter into a Site Plan Agreement (“SPA”) with the City of Peterborough, which shall include and address, on terms acceptable to the City’s planning staff those matters permitted by Section 41(4) of the Planning Act, including but not limited to: surface treatments; snow removal; waste storage; walkways; the location and height of all existing and proposed fencing; the location and setback for staircases; parking aisle widths; the location of fire access route; a drainage and grading plan satisfactory to the City Engineer; and

b. The Appellant shall pay any applicable fees and levies and fulfill his obligations under the SPA.

24The Panel Members will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

25If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in items 1, 2, 3, and 4 above have been satisfied, and do not request the issuance of the Final Order by August 12, 2022, the Appellant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

26The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“S. deBoer”

S. deboer

MEMBER

“D. Chipman”

D. chipman

MEMBER

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-21-001380 – Attachment 1

The Corporation of the City of Peterborough

By-Law Number 22- [Clerk’s Office will assign this number]

Being a By-law to amend the Zoning By-law for the lands known as 670 Hastings Avenue

Whereas Section 34(26)(b)of the Planning Act R.S.O. 1990, c. P. 13, as amended, gives authority to the Ontario Land Tribunal, to amend City of Peterborough Zoning By-law 1997-123 (the “City’s Comprehensive Zoning By-law”) ;

And Whereas the Ontario Land Tribunal, pursuant to its Order dated April 27, 2022 has determined that the following amendments to the City’s Comprehensive Zoning By-law in relation to 670 Hastings Avenue are appropriate;

Now Therefore, the Ontario Land Tribunal orders that the City of Peterborough Comprehensive Zoning By-law be amended as follows:

1. The property known as 670 Hastings Avenue shall be rezoned from R.1, 1m, 2m to a SP.295-350-H (Special District);

2. That Section 3.9 of Zoning By-law 1997-123 be amended to add Exception No. 350 capturing the following:

a. Increase the minimum lot area per dwelling unit from 185 m² to 250 m²;

b. Reduce the minimum building setback from the rear lot line from 7.5 m to 1.2 m;

c. Reduce the minimum parking requirement for dwelling units in the proposed two-unit dwelling building from 2 spaces per unit to 1 space per unit;

d. Recognize the existing floor area of the dwelling units within the proposed two-unit dwelling; and

e. If necessary and appropriate, grant relief from Section 4.3.1(b)(i) of the City’s comprehensive zoning by-law to reflect the existing width of the laneway as a parking access aisle; or

f. If the relief under 4.3.1(b)(i) of the City’s comprehensive zoning by-law cannot be granted, then the by-law shall include relief under 4.3.1(b)(ii) of the City’s comprehensive zoning by-law pertaining the number of required tandem parking spaces.

3. The Holding Symbol (H) shall restrict the creation and occupancy of an upper dwelling unit in the proposed two unit dwelling and will only be removed when the following condition is met:

a. The owner shall enter into a Site Plan Agreement (“SPA”) with the City, which shall include and address, on terms acceptable to the City’s planning staff those matters permitted by Section 41(4) of the Planning Act, including but not limited to: surface treatments; snow removal; waste storage; walkways; the location and height of all existing and proposed fencing; the location and setback for staircases; parking aisle widths; the location of fire access route; a drainage and grading plan satisfactory to the City Engineer.