Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 30, 2022
CASE NO(S).: OLT-22-002012 (Formerly PL210246)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Veronica Symonds
Subject: By-law No. BL 33-2021
Municipality: City of Windsor
OLT Case No.: OLT-22-002012
Legacy Case No.: PL210246
OLT File No.: OLT-22-002012
Legacy File No.: PL210246
OLT Case Name: Symonds v. Windsor (City)
Heard: February 2-3, 2022 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Veronica Symonds | B. Gagnier |
| City of Windsor | W. Vendrasco* |
| 2516053 Ontario Inc. | E. Hooker* |
MEMORANDUM OF ORAL DECISION DELIVERED D.S. COLBOURNE ON FEBRUARY 2, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The City of Windsor (“City”) passed a Zoning By-law Amendment (the “ZBA”) to allow the development of four, three storey condominium buildings with 96 units at 3129 Lauzon Road. Veronica Symonds, an immediate neighbour appealed the City’s passing of the ZBA to the Tribunal.
2The neighbourhood map attached to the witness statement of James Abbs clearly sets the context. The lands are 1.52 hectares (“ha”), in the area which is currently vacant, previously occupied by a single family dwelling. This is the largest of the eight long narrow lots on the west side of Lauzon Road, this being at least three times the width of the others, as well as those of similar size on the east side of Lauzon Road, facing the subject site. There are only these eight properties on the west side of Lauzon Road, north of which a golf course fronts the west side of the road.
3The properties on the west side, the subject and the six to the north and the one to the south, back onto the Little River Municipal Golf Course. Central to the Course is the Little River. To the west of the golf course is multiple residential development fronting on both sides of Meadowbrook Lane.
4To the south is a single family dwelling and south of that, situate at the south west corner of Lauzon Road, and Forest Glade Drive, is a Salvation Army Church. On the opposite corner is the Eastwood Public School and north of that on the east side of Lauzon Road, are the aforementioned10 single family lots. The lots north and south of the subject lands and the 10 on the east side north from the school north are all narrow lots, especially those on the east side although and they are fairly long.
5Development east and surrounding those 10 lots on the east side of Lauzon Road is a large area of single family dwellings in subdivision formed of later eras, with all of those lots certainly smaller in size than this enclave of long narrow lots.
6Mr. Abbs, Planner for the municipality, recommended the zoning change from RD1.1 to Residential (RD) 2.5 to allow 96 units with site specific regulations. Those regulations are; - Lot area 15,000 square metres (“m2”), and for Interior Side Yard- where a habitable room window of any dwelling unit faces a side lot line – minimum side yard of 20 metres (“m”).
7At the Development and Heritage Standing Committee meeting (“DHSC”), the residents expressed concerns over the development generally as well the height proposed. That committee recommended that the height of the development should be capped at 12 m. (2 m. higher than the surrounding single family development) as opposed to the 18 m. permitted in the zoning category proposed. This proposal was approved by Council on March 8, 2021.
8Ms. Gagnier as representative of the Appellant called and examined the Appellant and some of her neighbours. In addition to the concerns of her neighbours, the Appellant is concerned about the decreasing wildlife she observes which she says is due to the development of the multiple dwellings west of the golf course. She expects it will be exacerbated by the proposed development. She is also concerned about the density, the overlook and impact on her very natural space.
9Her neighbours, Nancy Tomika, Proulx, including those residing on the east side of Lauzon Road, were called and expressed their concerns on the impact on “flooding” and traffic.
10Ms. Gagnier, as Representative of the Appellant argued her views of the provisions of the Official Plan, verbally and practically in her argument by underlining the sections in issue. She viewed these as being important and concluded they were not appropriately considered by the planners, the committee, and especially not council.
11Quoting in part from her argument on her views of the Official Plan:
The first thing I would like to do is give you a visual view of the area in question. I would ask permission to show Google Earth to show the entire area. This, I believe, will give you a clear look showing this area as residential. I will also do some measurements so you can clearly see how far away “multiple dwelling buildings are located” and I think you will appreciate they are nowhere near this area as the city and developer argue. When it is referred to as “surrounding area”, you will see this is not so. “This proposed development is definitely inconsistent with the surrounding homes and area. today.
It is very clear that the City, when developing their Official Plan, were very concerned about massing, complementary surroundings, gradual transition in heights of buildings and setbacks, to state a few but in this instance, and I will point out that in this case, and in many other instances, the City disregarded their own plan.
I would just like to reiterate, we are opposed to the changing of the zoning and the exemption from bylaw 103-2020 on the following grounds:
The by-law (interim) was set it place so the City could consider their future plans and ensure developments would not be in conflict with that eventual plan. Since the plan is not completed, it is impossible to know whether this will be in conflict or not. Therefore, this should not be built.
In addition, the mere scale, massing, height, siting, orientation, setback, and parking is not compatible for the area. These buildings would not provide a gradual transition from low to medium profile buildings. Traffic is a concern. The need to protect trees and wildlife and ability to provide a suitable answer for the current and future flooding has not been finalized. These buildings are not complementary in any way to the surrounding area and the development of this area is not consistent with the City’s own Official Plan as shown on Schedule H.
12Although she ventured into the area of future applications on the site presuming refusal of this proposal which are beyond my consideration. “Our request of this Board is to have the decision of the City council overturned both with respect to the rezoning and the exemption under Bylaw 103-2020. Both the rezoning and exemption should be denied.
13Mr. Abbs, Planner for the municipality, who originally reviewed the application, and who was qualified by the Tribunal to provide expert land use planning evidence had recommended changes and prepared his report for both the DHSC and Council supporting the development with the special controls.
14In his witness statement Mr. Abbs, deals with the issue of compatibility as described in the O.P. 6.3.2.5. (one of the OP sections on the Issues List).
At the time of submission, the proponent shall demonstrate to the satisfaction of the Municipality that a proposed residential development within an area having a Neighbourhood development pattern is:
(c) compatible with the surrounding area in terms of scale, massing, height, siting, orientation, setbacks, parking and amenity areas;
15As opposed to the neighbourhood selected by Ms. Gagnier, the 8 plus 10 lots on Lauzon Road and all of the extensive area of single family to the east and surrounding those lots, the planner for the City selects as follows:
Mr. Abbs concludes: “Using the definition in Section 6.1.2.3 OP, the Neighbourhood area of the Subject Lands is illustrated by a broken black line on Exhibit "G" attached to his affidavit. The boundary is defined by Lauzon Road to the east, Forest Glade Drive to the South, Lauzon Parkway to the west and Hawthorne Drive to the North”.
“Although the development pattern for the immediately surrounding development is characterized by large, long parcels fronting on the east and west sides of Lauzon Road
To the west of the golf course which is west of the lots on the west side of Lauzon Rd. there are large square or rectangular parcels containing high rise development fronting both sides of Meadowbrook Ln., some of which is of recent development.
The remainder of the existing Neighbourhood development is composed of a mix of Low, Medium and High
16Profile Multiple Unit Dwellings are located, west of the Little River on Meadowbrook Lane and along Hawthorne Drive. Two large institutional uses are south of the subject occupying both corners of Forest Glade and Lauzon Road. Most prominent is the large municipally owned recreational area (golf course) occupying the area immediately to the west of the Subject Lands.
Therefore, the Development pattern has a predominant characteristic lotting pattern of large parcels and a mix of development profiles.
By contrast to the east of the Subject Lands on the east side of Lauzon Road, the predominant development pattern is low profile single unit buildings and large institutional buildings.
In my opinion a mix of development profiles and land uses already co-exist within the Neighbourhood. ……..
Compatible does not mean the proposed development needs to be identical to or even similar to the existing development. A development should be able to coexist with existing land uses. To assist in review, the OP sets out criteria to be considered while evaluating a new development application. Each of these criteria is to be considered within the context of the existing development. That context is identified in the OP as the Neighbourhood.
Large buildings with parking areas already co-exist and are compatible with single unit dwellings in this Neighbourhood. There is a single unit dwelling (3151 Lauzon Road) immediately south of the Subject lands. Immediately south and abutting 3151 Lauzon Road is a substantial existing institutional church use. This church is located 20m south of the interior lot line of 3151 Lauzon Road.
In my opinion a mix of development profiles and land uses already co-exist within the Neighbourhood. This illustrates that a development containing the proposed use with the regulations contained in By-law 33-2021 can co-exist with other development in the Neighbourhood and is therefore compatible.
17Mr. Abbas also deals with the issue of height in the OP as guided by Section 6.2.1.2, which defines the concept of development profile as follows:
For the purpose of this Plan, Development Profile refers to the height of a building or structure. Accordingly, the following Development Profiles apply to all land use designations on Schedule D: Land Use unless specifically provided elsewhere in this Plan:
Low Profile developments are buildings or structures generally no greater than three (3) storeys in height;
Section 6.2.1.2 OP defines both the existing single unit dwellings at a zoning bylaw permitted height of 10m or two stories, and the proposed Multiple Unit building at 12m height, or three stories, as specified in By-law 33-2021 as Low Profile Development. In my opinion the height of the proposed development and existing development are compatible with respect to height and conform to the OP.
18He also reviews scale in the OP as defined by Section 6.3.2.3. For the purposes of this Plan, Low Profile housing development is further classified as follows: small scale forms: single detached, semi-detached, duplex and row and multiplexes with up to 8 units; and large scale forms: buildings with more than 8 units.
19In the opinion of Mr. Abbs, the OP contemplates that low profile development may have more than 8 units. That is what this Application contemplates. In this respect the Application conforms to the OP with respect to Scale. The ultimate size of this development is limited by the regulations contained in By-law No. 33-2021 to guide the Applicant in their creation of a development for this site. The massing and scale of the proposed development are generally dealt with through the Site Plan Control Process.
I reviewed and considered each of these parameters when I prepared the Report and my Recommendations for that Report. In my opinion each of these parameters conform to the policy direction in the OP. The final layout of the development in compliance with the provisions of the Zoning By-law will be determined through the Site Plan Control Process.
20On parking any development on the Subject Lands will have to comply with the city wide standard parking provisions.
It is my professional opinion that 6.3.2.5(f), 6.3.2.6(a)(iv), 8.7.2.1 (a), 8.7.2.2(f), and 8.7.2.4 of the OP as identified in the Applicants Issues list of the Procedural Order are not applicable to the Subject Lands.
21Mr. Abbs exhaustively dealt with every remaining OP provision applicable to these circumstances, not previously dealt above and either concluded the provision(s) do not apply or indeed support the enactment of the by-law.
By-law No. 33-2021 in my professional opinion conforms to Sections6.3.2.5(c), 6.3.2.5(a)(iv), 7.3.4.7(c), 8.5.2.7, and 8.7,2.3, of the OP as identified in the Applicants Issues list of the Procedural Order, that By-law 33-2021 represents good land use planning, and that the Appeal by Appellant should be dismissed.
22The challenge to Council’s ability to amend interim control by-law No. 8600 in my view was satisfactorily dealt with by Mr. Abbs reference to the exemption for by-laws passed after January 1, 2017. Melanie Muir, Planner for the Applicant concurs that the exemption is appropriate and that it will not prejudice the outcome of the study contemplated by Interim Control By-law No. 103-2020.
23Ms. Muir, an Associate with Dillon Consulting Limited (“Dillon”), is a Registered Professional Planner and a Member of the Canadian Institute of Planners. She has over twenty-one (21) years of experience in land use planning. She was qualified by the Tribunal as a land use planner and gave evidence on behalf of the Applicant.
24Her witness statement and testimony covered the OP issues of concern to the Appellant and although not an issue dealt by any of the Appellant’s witnesses she dealt exhaustively with the PPS.
25Based on her evidence and opinion, without contrary opinion evidence, I accept her conclusion on the PPS.
26With respect to the OP, she points out that much of the compatibility will be considered as part of the Site Plan Control, having regard to such matters as materials, landscaping, scaled amenities, and the appropriate orientation of the site layout. As well, Stage 1 and 2 Archeological Assessments have been carried out and a clearance letter is required and is expected from Essex Region Conservation Authority (“ERCA”) before development. She describes the development as complementary to the neighbourhood, and considering the adjoining development (both north and south), accommodates it with reference to the reduced height, the matter of habitable windows, side yards and the use of materials.
It is my professional planning opinion is that the Zoning By-law Amendment before the OLT to amend the Zoning By-law from RDI.I to a site specific RD2.5 constitutes "good land use planning" and is in the public interest for the reason identified above and for the following reasons:
It provides an opportunity to create a range of housing types on an underutilized property;
The proposed development conforms to policies found in the City of Windsor OP including, without limitation, all of those sections raised in the Issues List as they may relate to: Massing; Building Height ("...facilitating a gradual transition from low profile residential development to Medium and/or high profile development."); Volumes of Defined Space — as it relates to storm water management and risk of flooding; Position Traffic Intensity; Identified Issues with Current Flooding.
Ms. Muir’s final conclusion is that:
“The site is suitable to allow for the type of development contemplated by the zoning by-law such as the construction of four (4) apartment buildings (96 units in total) with associated parking areas in the concept plan provided during the application process; allows for the development of a range of tenure and affordable housing units; The property is generally flat and fronts a municipal roadway;
The lot is generally rectangular in shape and has appropriate dimensions for the proposed use.
Traffic
27As Ms. Muir describes, Lauzon Road is designated as a Class 1 Collector Road intended to carry high volumes of traffic. In terms of its function, beyond the opposition opinion that it was busy, the only other evidence tendered was that the present flow is comfortable. The fact is that the Transportation Department of the City was not concerned with the impacts this development would have on this Road and required no study as to impact. As of now there is a single point of access proposed for the development with one lane each way. Obviously, it will be busier than a single family driveway.
“Flooding” and the Little River:
28The Appellant and her witnesses, even those residing on the east side of Lauzon Road, raised the issue of backyard “flooding” and suggested that the development would suffer the same results and could exacerbate the situation for the other residents and would obviously be in the flood plain.
29Ms. Gagnier the Appellant’s representative said that ERCA in the Municipal circulation of this application had asked that consideration of the application be delayed until the Floodplain mapping for the Little River, currently underway, came into force. This was not acted upon by the municipality. Nor did ERCA raise any subsequent concerns, when the municipality proceeded.
30Actually, ERCA’s final recommendation contained within the Planning Report documentation dated Oct 2, 2020 is as follows:
ERCA has no concerns with the proposed rezoning application as it relates the specific amendment for a modification to the maximum height of dwellings in this zone, ERCA is supportive of the approach to recognize the ongoing nature of the study to assess the extent of the floodplain and associated floodway setback at this location and proceed with the rezoning but wait for the result of the Little River Floodplain Study ( to be completed by Dillon) prior to proceeding with detailed site plan control. ERCA expresses caution and recommends that additional confirmation about whether natural heritage policies of the PPS 2018 Scoped Environmental Impact Assessment which ERCA has not had a chance to review.
31Ryan Langlois is a Senior Water Resources Engineer with Dillon Consulting and was retained by the Applicant to provide opinion evidence with respect to the issue of “flooding” raised by the Appellant and her other witnesses and his opinion of the development in relation to the river.
32Ms. Gagnier also raised the fact that Dillon Consulting was retained by the Windsor /Essex Region Conservation Authority to chart the Floodplain mapping for the Little River. She suggested this as a conflict of interest with his appearing on behalf of the Applicant in this matter. In my opinion, I fail to appreciate that the firm’s professional work, or of his in respect of this waterway, would be altered in any way for one property owner in the whole of the system, especially since, according to Mr. Langlois, the Floodplain Mapping for ERCA has been completed and has received ERCA’s approval, but not yet in force.
33Mr. Langlois concludes:
In my opinion, the development property is able to provide a sufficient stormwater management strategy to meet the current regional and municipal standards set forth within the Windsor/Essex Region Stormwater Management Standards Manual (ERCA, December 2018) and provincial Stormwater Management Planning and Design Manual (MOE, 2003) requirements for regional and provincial approvals;
In my opinion, based on the ERCA approved technical results from the Regulated Little River Floodplain Mapping update results shown, the development property is considered to be outside of the Primary Floodway and within the Secondary Flood Fringe area where development is permitted;
In my opinion, the development property can meet the floodproofing measures outlined within "4.2" that is required for future regional and provincial approvals. The approval of the requested zoning (and the subsequent development accommodated thereby) in advance of formal completion and adoption of the updated floodplain mapping study by ERCA and the City for the Little River area, and is not premature at this time, as the technical component of the study has been completed and approved by ERCA;
In my opinion, the development property is not expected to adversely impact adjacent properties from the flood line perspective under a future development condition.
Based on review of the City of Windsor Sewer and Coastal Flood Protection Master Plan (Dillon, 2020) and a review of the currently proposed stormwater management strategy for the development property, it is my opinion that the existing storm sewers along Lauzon Road at this location are adequately sized to accommodate the allowable release rate established.
In my opinion, the existing municipal storm conveyance system will continue, under a re- developed property condition, provide a standard level of conveyance during frequent storm events with an appropriate overland flow route along Lauzon Road for major storm events.
In my opinion, the development property under a future condition will not cause any adverse impacts on the surface ponding experienced along Lauzon Road and along existing residences property.
In my opinion, the approval of the requested zoning will not create adverse impacts to the area with respect to flooding, notwithstanding the concerns of local residents. The development can and will provide appropriate stormwater management controls and floodproofing measures, as approved through the normal site plan approval and permitting processes.
34He further states that with respect to Sec. 7.3.4.7 of the OP:
Council shall require proponents of development that require stormwater management systems to:
(c) Consider, where appropriate, enhancing the vegetation, wildlife habitats and corridors in and along the stormwater management system and the receiving watercourse."
In my opinion, the development property can satisfy this Official Plan requirement by abiding by the required 15 m drain setback (which will remain vegetated) to be established by ERCA from the Little River as part of any approval obtained through the normal site plan approval and permitting processes. Stormwater Management for the site will be primarily underground with no stormwater pond features on the surface to vegetate.
35While I understand that the appearance of wildlife is appreciated by the residents, I do not accept that the river, its banks and the golf course and the adjacent multiple development can possibly be a significant wildlife preserve given the fact of the continuing urban development on the other side the river. Nor do I accept that the subject development will in anyway significantly affect the intermittent and diminishing appearances of wildlife already experienced by these few residents.”
36The issue of “flooding” as described by the neighbours, is, given the evidence of Mr. Langlois, not an issue and in terms of any impact, this development can be managed on site with appropriate engineering as already proposed and to be further developed at the Site Plan stage. ERCA’s natural heritage concerns will also be settled at that time and they would have to issue the appropriate certificate.
37There is no question that the cluster of large size lots of the immediate development and that to the east is all single family. The lot sizes in this cluster on both sides of Lauzon Road are large and lengthy and provide a very open setting for these few single family residences. No evidence was provided to give the background of their creation, or how the subject property was, or became, three times the width of these adjoining lots, given the surrounding development.
38The issue here is “what is the neighbourhood”. The views are divergent, poles opposite in character.
39Ms. Garnier gathers the cluster of these few large lots on both sides of Lauzon Road, around the subject, and continues east and northeast into the normal sized residential lot areas all east of Lauzon Road, to create the single family residential neighbourhood.
40The Planning witnesses both for the City and the Applicant take the normal block approach to include Lauzon Road, Lauzon Parkway, Forest Glade Drive and Hawthorne Drive, which contains this enclave of a few single lots on the west side of Lauzon Road, the church to the south, the river and the golf club in the middle, and multi density blocks to the west.
41The nature of Lauzon Road is of assistance in that it not a minor residential street. The residents described it as busy, but according to Ms. Muir, for its classification she is comfortable in concluding that Lauzon Road, would not be impacted by this proposal, and is expected to carry greater traffic, for its classification and capacity.
42Lauzon Road to me, becomes the dividing line between neighbourhoods, which is clear with reference to Exhibit G to Mr. Abbs’ witness statement. The neighbourhood is that as described by Mr. Abbs and Ms. Muir, and it is mixed development over it’s breadth and it remains for the Site Plan Control Process, to assist in moderating the changes between the singles and the development.
43For all of the reasons indicated, and upon the whole of the uncontroverted planning evidence before the Tribunal, I dismiss the appeal and confirm the decision of Council.
“D.S. Colbourne”
D.S. COLBOURNE MEMBER
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