Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 20, 2022
CASE NO(S).: OLT-21-001184
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Oday Ahmed
Applicant: Tosin Bello
Subject: Zoning By-law
Description: To permit a mixed use development
Reference Number: Z-011/20 ZNG/6074
Property Address: 1090 North Talbot Road
Municipality/UT: Windsor/Essex
OLT Case No.: OLT-21-001184
OLT Lead Case No.: OLT-21-001184
OLT Case Name: Ahmed v. Windsor (City)
Heard: April 20 and 21, 2022 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Oday Ahmed | Self-represented* |
| Tosin Bello | Josh McDougall |
| City of Windsor | Wira Vendrasco |
DECISION DELIVERED BY T.F. NG AND S. MANN AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is an appeal filed by Oday Ahmed (the “Appellant”) appealing the City of Windsor’s (the “City”) passing of Zoning By-law No. 96-2021 (“ZBA”) which amends Zoning By-law No. 8600 (“ZBL”) for the purpose of adding a site-specific zoning provision to allow a multi-unit residential development with a maximum building height of 14 metres (“m”) to the Commercial District 1.12 (CD 1.12) zone by Tosin Bello (the “Applicant”).
2The Applicant’s property is municipally known as 1090 North Talbot Road (the “subject lands”).
3The proposal is for an amendment to the ZBL for the lands located on the northeast corner of the intersection of North Talbot Road and Sixth Concession Road to permit a multi-unit residential use on the subject lands.
4The Land Use designation for the subject lands is Residential on Schedule D of the City’s Official Plan (“OP”) Volume 1 and the zoning category is Commercial District 1.12 (CD1.12) under the ZBL.
5The Applicant proposes to change the zoning of the subject lands by adding the following site-specific zoning provisions to permit
a stand-alone multi-unit residential building;
a combined use building with a mix of commercial and residential uses;
maximum building height of 14 m;
minimum front yard and exterior side yard depth of 0 m; and
minimum landscaped open space of 25%.
The Applicant's conceptual plan shows a proposed 4-storey, 55-unit multiple dwelling with 69 parking spaces proposed.
6The City appears in support of the Applicant. Ms. Vendrasco, counsel for the City, called Justina Nwaesei, the City’s Land Use Planner. The Tribunal qualified Ms. Nwaesei to provide expert opinion evidence in the area of land use planning.
7The Applicant has obtained a witness summons for Melanie Muir, but the summons was not served (no later than five days) before the hearing as required under Rule 13(g) of the Tribunal’s Rules of Practice and Procedure (“Rules”). The summons also cited April 14, instead of April 20, 2022 as the hearing date for the witness’s attendance. The Panel set aside the summons, and since Ms. Muir was considered voluntarily in attendance and did not execute an acknowledgement of expert’s duty, she was directed to file the Acknowledgement and include her Curriculum Vitae to the Tribunal’s Case Coordinator. Nevertheless, Ms. Muir was not called by the Applicant at the hearing. The Applicant did not call any witness, relying instead on the testimony of Ms. Nwaesei.
8Brenda Gagnier (who is not legally trained and is not a planner) confirmed that she is neither a friend nor a neighbour of the Appellant, and was representing the Appellant as an agent and for compensation. The Tribunal ascertained that she is not exempt under Part V of By-law 4 of the Law Society of Ontario’s by-laws. She was not permitted to represent the Appellant at the hearing. The City and the Applicant objected strenuously when the Appellant requested an adjournment, as the matter has been fixed for a two-day hearing and they were ready to proceed.
9However, the panel stood down for one-and-a-half hours to allow Ms. Gagnier to render full assistance and advice to the Appellant in the conduct of his case as a self-represented person. On resumption of the hearing, despite the Appellant’s initial protestations and request for adjournment (which the panel rejected, as this was not an exceptional circumstance nor an illness but a choice of the Appellant in engaging an unqualified person), the Appellant confirmed he will undertake his appeal, make submissions, examine his own witnesses and cross-examine the opposing sides’ witnesses. At the two-day hearing, the Tribunal permitted Ms. Gagnier to provide full background assistance in the form of screen sharing, providing examination questions and cross-examination questions including submissions to the Appellant so that the Appellant could fully present his case himself.
10The Appellant, who is an engineer, called Jeff Nadalin, a neighbour as a lay witness. He also called Kim Storey, an urban designer. Ms. Storey was qualified to give expert opinion on urban design matters.
11Ms. Storey testified that the building design as a single large building is not appropriate for the subject property. She stated that she has been in the urban design business for decades and found that this building design is more suitable in a downtown urban context, rather than in this predominantly residential suburban neighbourhood. The above-ground large space area for parking and the L-Shape building, that is planned for this proposed development, is inappropriate in this area and detracts from the urban design relationship of open space and the public realm aesthetics of built form. Under the OP, she said, the initial building type should be proposed to be integral to more amenity, open spaces, trees and shrubs. She suggested that the 0-m setback is not helpful, and the setbacks are not comparable to the neighbourhood. There is no rhythm of lot sizes, as there is just one giant building on a giant lot. The Tribunal will at this juncture state that the matter before it is a zoning matter. For the purpose of urban design, Ms. Storey confirmed that she is not a qualified land use planner. The Tribunal finds that Ms. Storey is critiquing urban design matters without the full qualified ability to take into account the relevant planning policies. In considering the proposed development, the Tribunal is persuaded by and prefers Ms. Nwasei’s comprehensive planning policy evidence which fully considers planning policies, building design policies, setbacks and landscaped open spaces. Such detailed design matters can also be appropriately addressed at the site plan and approval stage to address compatibility of the proposed building with the neighbourhood.
12Mr. Nadalin, a high school teacher, testified generally on his perception of the proposed development being too massive and too close to the lot lines with insufficient setbacks. He took photographs and measurements of neighbourhood properties pertaining to setbacks. His measurements, he said, show that setbacks are generally 14 m for the adjacent properties while the development’s setback will be 6 m. He also testified to the number of traffic accidents that he claimed occurred in the area at the North Talbot Road and Sixth Concession intersection that he personally observed. In his opinion, the development will cause traffic concerns. The Tribunal notes that Mr. Nadalin is not qualified to give expert opinion on building setbacks or traffic matters, as he is not a planner or a traffic engineer.
13The Joint Document Book was marked as Exhibit 1, while the Joint Book of Authorities was marked as Exhibit 2.
14The Tribunal having considered the testimony of Ms. Storey, Mr. Nadalin, and Ms. Nwaesei, and having reviewed the materials filed with the Tribunal, dismisses the appeal for the reasons set out below.
15The Tribunal prefers the uncontroverted planning evidence of Ms. Nwaesei, who was the only land use planner in this matter. The Appellant’s cross-examination did little to dent Ms. Nwaesei’s opinion evidence.
PLANNING EVIDENCE
16Ms. Nwaesei testified that as the City Planner, she authored two reports. She stated that the latest Report No. S 2/2021 is the report recommending approval of the ZBA.
17She recommended the ZBL be amended for the subject lands by adding the following site-specific zoning provisions to permit a multi-unit residential use with on the subject lands:
- Northeast Corner of Sixth Concession and North Talbot
For the lands comprising Pt Lot 12, Concession 5, designated as Pt of PART 7, 12R-23594 and Pt of Block 197, 12M-355, the following shall be permitted.
A stand-alone multiple dwelling, subject to the following additional regulations:
section 12.1.5 (RD3.1 regulations) of By-law 8600 shall apply to a stand-alone multiple dwelling, except 12.1.5.5, 12.1.5.6 & 12.1.5.7 (minimum front yard depth, rear yard depth, and side yard width provisions);
section 14.12.5 (CD1.12 regulations) of By-law 8600 shall also apply to a stand-alone multiple dwelling, except 14.12.5.4 (maximum building height provision);
building ends abutting low profile developments shall be tapered to achieve a gradual transition from low to medium profile in accordance with paragraph iv(b) below; and
minimum building setback shall be as follows:
from the exterior lot line along 6th Concession Rd, specifically, the 60m section measured from the most northerly point on the subject lands going southerly towards North Talbot Rd- 6m
from an interior lot line, for that part of the building
7.5m or less in height- 6m
Above 7.5m and up to 10.5m in height- 7.5m
Above 10.5m in height- 14m
access to rooftops shall be solely for the purpose of maintenance.
Dwelling Units in a Combined Use Building with any one or more of the uses permitted in section 14.12.1 of By-law 8600, subject to the following additional regulations:
all dwelling units, not including entrances thereto, shall be located above the non-residential uses; and
the site-specific regulations, in subsection 1, applicable to a standalone multiple dwelling shall also apply to a combined use building; [ZDM 13; ZNG/6074]
18The subject lands are subject of an Ontario Municipal Board (“OMB”) decision issued July 10, 2008, File No. PL050845. The OMB Decision led to the change in zoning for Part 7, 12R-23594 and Block 197, 12M-355 from HRD1.4 to CD1.12 (neighbourhood commercial zoning). Abutting lands fronting on Pioneer Avenue, designated as Parts 1, 2, 3, 4, 5 & 6, 12R-23594, which are not subject of this rezoning, were also included in the OMB decision and were changed from HRD1.4 to RD1.1.
Neighbourhood Characteristics
19Ms. Nwaesei explained that the surrounding area is an established residential neighbourhood comprising low density, low profile residential developments of the single detached, semi detached and townhome types of housing options that are:
North, Northwest, West & Southwest – Residential uses
- Small-scale low profile residential developments, mostly single detached dwellings.
South – Residential and Open Space uses
Municipal Park (Stoney Park);
Vacant lands for future small-scale low profile residential developments of the single detached dwelling type;
Small-scale low profile residential developments, mostly single detached dwellings.
East – Residential & Open Space uses
Small-scale low profile residential developments, mostly single detached dwellings;
Vacant residential lands owned by the Applicant;
Municipal Park (North Talbot Park);
Small-scale low profile residential developments, mostly semi-detached and townhome dwellings.
Southeast – Residential uses
Vacant lands for future small-scale low profile residential developments of the single detached dwelling type;
2-storey Residential Care Facility (Extendicare Southwood Lakes).
Northeast – Residential uses
- Small-scale low profile residential developments comprising single detached, semi-detached and townhome dwellings.
20The municipal stormwater and sanitary sewers are available to service the subject lands.
21The area is well served by bus routes, bike lanes and roads:
Transit Windsor bus services (North and Southbound Walkerville: 8 Buses) are available in the subject area, along Sixth Concession and North Talbot Roads. There is a bus stop located on North Talbot Road, in front of the subject property.
Bike lanes are available on both sides of the pavement along Sixth Concession and North Talbot Roads.
Sixth Concession Road and North Talbot Road are classified as Class 1 collector roads.
22Ms. Nwaesei’s planning analysis focuses on the proposed residential use being introduced to the subject lands, which is already approved for neighbourhood commercial uses (re: the OMB decision referred to earlier).
23Ms. Nwaesei took the Tribunal through an overview of the policy context of the ZBA. She concluded that the ZBA represents good land use planning, is consistent with the Provincial Policy Statement 2020, (“PPS”), and maintains the intent and purpose of the City OP.
Analysis and Findings
24The Tribunal accepts the testimony and conclusions of Ms. Nwaesei. lt is her opinion that the site-specific zoning amendment to allow a multi-storey, multi-unit residential building is consistent with the PPS and in conformity with the OP.
The Policy Context – Planning Act
25The Tribunal finds that the ZBA has regard for the applicable matters of provincial interest set out in s. 2 of the Planning Act (“Act”), including subsections (h) the orderly development of safe and healthy communities; (p) the appropriate location of growth and development; and (q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians.
Provincial Policy Statement 2020
26The PPS expresses a key policy direction as managing and directing land use to achieve efficient and resilient development and land use patterns. Policy 1.1.1(a) directs and promotes efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term. Policy 1.1.1(e) promotes the integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit investments, and standards to minimize land consumption and servicing costs. Policy 1.1.1(g) ensures that necessary infrastructure and public service facilities are or will be available to meet current and projected needs. Policy 1.1.3.3 directs planning authorities to identify appropriate locations and promote opportunities for transit-supportive development, accommodating a significant supply and range of options through intensification and redevelopment, where this can be accommodated, taking into account existing building stock and areas.
27The ZBA encourages residential intensification by providing additional housing supply, which is an appropriate response to the market-based housing needs in the City. The proposed development of a multi-storey, multi-unit residential development optimizes the availability and use of land and infrastructure by intensifying the use of an underutilized, vacant parcel of land.
28The amendment is consistent with policy 1.7.1 of the PPS. The ZBA promotes efficient development and land use patterns while identifying the appropriate locations for intensification and redevelopment and taking into account the existing building stock in the area. The Tribunal finds the ZBA is consistent with the PPS.
Official Plan
29The subject property is designated "Residential'' in the Land Use Schedule D of the OP.
30The Tribunal agrees with Ms. Nwaesei that residential land use objectives are to support a range of housing forms, promote compact residential form and promote selective residential infill and intensification initiative in the City (s. 6.3.1.1, s. 6.3.1.2, s. 6.3.1.3 and s. 6.3.1.7 of the OP).
31The proposed multi-unit, medium profile, residential development meets the stated objectives. The ZBA supports a range of housing forms in the neighbourhood and provides for residential infill and intensification.
32The ZBA permits a multi-unit, multi-storey, medium profile residential use on the subject property without the need for an official plan amendment as the uses permitted include low, medium and high-profile residential uses (s. 6.3.2.1 of the OP).
33The proposal on the subject lands provides for residential infilling within an established residential neighbourhood with access to nearby collector roads (North Talbot and Sixth Concession Roads) and access to full municipal services, as well as public transit and amenity open spaces in the neighbourhood. As such, this ZBA satisfies the criteria set out in s. 6.3.2.4 of the OP.
34The proposed development also satisfies the policies of s. 6.3.2.5 (c) compatibility with the surrounding area in terms of scale, massing, height, siting, orientation, setbacks, parking and amenity areas.
35Ms. Nwaesei explained that in order to ensure that the proposed development is compatible with surrounding area in terms of scale, massing, height, siting, orientation, setbacks, parking and amenity areas, it is considered appropriate to use the requirements of the nearest medium/high profile development zoning category in the subject area. Consequently, the RD3.1 zoning provisions of the Long-Term Care Facility located at 1255 North Talbot Road is being used as a benchmark for the proposed medium profile development at the subject property. The concept plan and renderings submitted for this rezoning show that the Applicant proposes to taper the ends of the proposed building down from 4 storeys to 3 and 2 storeys on Sixth Concession Road and from 4 storeys to 2 storeys on North Talbot Road in order to promote a gradual transition from low to medium profile development. It is Ms. Nwaesei’s opinion that the recommended amendment promotes compatibility with the surrounding area as required under s. 6.3.2.5 (c).
36The proposed development provides for adequate off-street parking (69 spaces on the subject property). The proposed residential development is located in an established residential neighbourhood with full municipal services and the concept plan shows a gradual transition from low to medium profile development.
37There is an orderly development pattern in the subject area. The Tribunal is persuaded that the proposal will provide additional housing options and opportunities in the area. Any potential adverse impacts on nearby residential properties will be mitigated with design elements and landscaping features at the site plan approval stage. The Tribunal finds that the ZBA meets the evaluation criteria and conforms to the OP (s. 11.6.3.3 and s. 11.6.3.1).
Zoning
38Ms. Nwaesei provided some background that in 2008, the OMB Decision (File No. PL050845) allowed a partial appeal of the rezoning of the subject lands from residential (HRD1.4) to neighbourhood commercial (CD1.12). The OMB Decision resulted in the current zoning category (CD1.12) on the subject lands of this rezoning application. Permitted uses in the CD1.12 zoning category include business office, medical office, food outlets, personal service shops etc. and accessory uses to the permitted uses.
39She noted that section 14.12.5.50 (a provision in the CD1.12 zoning category) resulted from the 2008 OMB Decision on the subject lands. Section 14.12.5.50 states:
A minimum setback of 6.0 m from the northern limit of the parcel adjacent to Lots 194, 195 and 196, Plan 12M-355 (fronting on Sixth Concession Road). Said setback shall be maintained exclusively as a landscaped open space yard. Notwithstanding any other provisions, any building, parking area or access area is prohibited within this setback.
40Ms. Nwaesei stressed that section 14.12.5.4 - building height provision in the CD1.12 zoning permits a maximum building height of 7.5 m. The Applicant is requesting a building height of 14 m, which is consistent with the RD3.1 maximum building height regulation for developments on a corner lot. A nearby property at 1255 North Talbot Road is currently zoned RD3.1. The abutting lands zoned RD1.1, RD1.4 and RD1.2 have zoning regulations that permit a maximum building height of 10 m for the single unit dwellings permitted on those lands.
41There are no front yard depth and side yard width provisions in the CD1.12 zoning; however, Ms. Nwaesei’s report addresses the need to have a building setback along Sixth Concession Road.
42The Tribunal notes that the Applicant proposes to develop a 55-unit, multi-storey residential building on the subject site. The ZBL requires 1.25 parking spaces per dwelling unit, which results in 69 parking spaces minimum required for the 55 proposed dwelling units. The Applicant proposes 69 parking spaces. At the hearing, no expert opinion evidence of traffic related issues was presented to the Tribunal.
43Neighbouring residents’ concerns on rooftop facilities of the proposal causing privacy issues were addressed in Ms. Nwaesei’s report which recommends, among other provisions, a restricted access to the rooftops, except for maintenance purposes.
44She addressed the Applicant's request for increase in building height as follows:
Allow a maximum building height of 14 m for a "Stand-alone multiple dwelling" and "Dwelling units in a combined use building" on a corner lot, per the provisions of a nearby medium/high-density residential zoning, RD3.1 (see section 12.1.5 of By-law No. 8600).
Include a zoning regulation that addresses the need to achieve a gradual transition from low to medium profile development and ensure compatibility per s.6.3.2.5 (c) of the OP. Recommendation IV of Ms. Nwaesei’s Report requires that the buildings ends be setback based on proposed heights (see the ZBA terms).
Based on the building setback requirements being recommended from interior lot lines, the rear yard depth requirement in RD3.1 shall not apply to a residential development on the subject land.
45The Applicant's request for 0 m front yard and side yard depths is addressed as follows:
No front yard and side yard setbacks are recommended; however, a building setback of 6 m is recommended from Sixth Concession Road for a "Stand-alone multiple dwelling" and "Dwelling units in a combined use building" on the subject site. The 6 m setback will apply to the 60 m section of the exterior lot line along Sixth Concession Road, measured from the most northerly point of the subject land going south towards North Talbot Road. The recommended 6 m building setback will help establish a framework for achieving building setback compatibility with the surrounding existing small scale, low profile developments fronting on Sixth Concession Road.
No building setback is recommended along North Talbot Road for two reasons: (i) there was a recent gratuitous land conveyance of approximately 6 m in width across the North Talbot Road frontage of the subject land, including a small portion of the Sixth Concession Road, and (ii) the proposed development on the subject site will be the only development fronting the North Talbot Road within the subject block (from Sixth Concession Road to Pioneer Avenue) and, as such, a zero setback will have no adverse effect on the nearby developments. It should also be noted that there is no development fronting the south side of North Talbot Road directly across from the subject site.
46Ms. Nwaesei acknowledged that the request for 25% landscaped open space will be deferred to the site plan review and approval stage where a more detailed review will be carried out. It should be noted that a minimum landscaped open space yard of 35.0% of the lot area is required by the ZBL under the RD3.1 regulations.
47The proposed amendment is a “development” as defined in s. 41(1) of the Act, so the Applicant is required to submit an application for site plan approval. Execution of a site plan agreement is required at that stage.
Conclusion
48The Tribunal is satisfied that Ms. Nwaesei has carefully studied the zoning amendment application. She recommended, described and provided for appropriate site-specific zoning regulations in relation to the appropriate setbacks for the corresponding heights and transition to promote compatibility with the surrounding neighbourhood. The Tribunal considers that compatibility does not mean the same or similar. As long as the development can co-exist without adverse impact on the neighbourhood, compatibility is achieved. The surrounding area is residential, and the site-specific zoning is to provide for a stand alone, multiple-unit dwellings building of two to four storeys in height. This is in line with the character of this residential neighbourhood. The Tribunal finds that this amendment will facilitate an infill development and the subject property has access to full municipal infrastructure and services, as well as public transit. The proposed development will increase the residential housing supply and is transit supportive. It will promote connectivity by utilizing existing sidewalks, bike lanes and the transport infrastructure in the area.
49The adjacent residents’ focus on setbacks may have been misplaced. The 0-m setback is actually not a zero setback, because that is the result of a new lot line after a gratuitous conveyance of a 6-m wide portion of lands to the City for road widening. The ZBA appropriately governs the permitted land uses within the site-specific area. The Tribunal finds that the proposed development and ZBA conforms with the OP and generally complies with the ZBL.
50The Tribunal is satisfied that the proposed development and the ZBA have regard for relevant matters of provincial interest, as set out in the Act, are consistent with the PPS, and conforms with the OP.
ORDER
51The Tribunal Orders that the appeal is dismissed.
“T.F. Ng”
T.F. Ng
MEMBER
“S. Mann”
S. mann
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.