Akbarian v. Whitchurch-Stouffville (Town), 2022 CanLII 48585

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 30, 2022

CASE NO(S): OLT-21-001803

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Hesam Akbarian

Subject: Consent

Property Address/Description: 6195 Churchill Drive East

Municipality: Town of Whitchurch-Stouffville

Municipal File No.: CA-21-40 (B11/21)

OLT Lead Case No.: OLT-21-001803

OLT Case No.: OLT-21-001803

OLT Case Name: Akbarian v. Whitchurch-Stouffville (Town)

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

Applicant and Appellant: Hesam Akbarian

Subject: Minor Variance

Property Address/Description: 6195 Churchill Drive East

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

Municipality: Town of Whitchurch-Stouffville

Municipal File No.: CA-21-41 (A31/21)

OLT Lead Case No.: OLT-21-001803

OLT Case No.: OLT-21-001804

Heard: April 25 and 26, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Hesam Akbarian

David Germain

DECISION DELIVERED BY S. BRAUN AND S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Hesam Akbarian (“Appellant”) owns the property known municipally as 6195 Churchill Drive East, (“Subject Property”). To permit the redevelopment of the Subject Property with single detached dwellings, he applied to the Town of Whitchurch-Stouffville (“Town”) for consent to sever the Subject Property into three residential lots, as well as associated minor variances to address Zoning By-law deficiencies which would result from the severance, if granted.

2The Town’s planning staff provided a detailed report (“Staff Report”) to the Committee of Adjustment (“Committee”) in support of their recommendation that the consent and minor variance applications (collectively, the “Applications”) be approved, subject to a number of conditions. Notwithstanding this recommendation, the Committee refused the Applications, and that decision is now the subject of the Appeals before the Tribunal, brought pursuant to s. 53(19) and 45(12) of the Planning Act¹ (“Act”).

3The Tribunal received written requests for Party Status from the following individuals, all of whom reside near the subject property: Peter Dziedzic, Andrew Dickinson and Jane Grinnell. The Tribunal also received Participant Status requests from nearby residents Anne-Marie and Paul Jordan as well as Peter Dziedzic.

4Anne-Marie and Paul Jordan were granted Participant Status (“Participant(s)) with the consent of the Appellant. With respect to the requests for Party Status, the requestors advised that they did not intend to lead any evidence but rather, wished to cross-examine the Appellant’s witnesses and provide commentary on the proposed development from the point of view of those living nearby for the Tribunal’s consideration. Based on a careful review of the information provided in the requests and the clarification from the requestors that they did not intend to present a full case, the Tribunal denied Party Status, finding instead that what the requestors sought was more appropriate to the granting of Participant Status.

5As such, with the consent of the Appellant, the written statements appended to the Party Status request forms were accepted by the Tribunal as Participant statements. Given that Mr. Dziedzic submitted requests for both Party and Participant Status which were slightly different in terms of content, the Appellant consented to the Tribunal accepting and considering these collectively as one Participant statement.

6In opposition to the proposed development, the written statements of the Participants raised a variety of concerns including, but not limited to: loss of mature trees; septic systems, drainage/flooding; and possible contamination of the nearby lake and/or groundwater. The Participants were especially concerned that approval of the proposed consent and minor variances would adversely affect the rural character of their neighbourhood and, in general, set a negative precedent for future development in the area.

SITE CONTEXT AND EFFECT OF PROPOSAL

7The Subject Property is rectangular in shape and approximately 0.61 acres (0.247 hectares) in size, having the largest frontage on Churchill Drive East. At present, it contains one single detached dwelling and a shed, which are proposed to be removed to permit the development of three single detached residential dwellings. The northern portion of the property (60%) is designated Rural Settlement and the southern portion (40%) is designated Natural Linkage in the Oak Ridges Moraine Conservation Plan (“ORMCP”). To the north and east of the Subject Property are residential dwellings and vegetated open space. To the south is vegetated open space and to the west are existing residential dwellings. Further to the west is Musselman Lake.

8For context, it is noteworthy that the Subject Property previously existed as four separate lots of record on a now de-registered plan of subdivision. The northern portion of the subject property was divided into three separate lots (which eventually merged on title due to one ownership), with the southern portion being one larger parcel.

9The Appellant seeks provisional consent to sever the Subject Property, which would have the effect of dividing what is currently one large rectangular parcel of land into three separate lots, essentially reinstating the previous division of the northern portion of the Subject Property and combining same with the southern portion of the property. The result would be three smaller lots spanning the entire north/south length of the Subject Property. The below diagrams provide a helpful illustration of the previous subdivision and the Appellant’s proposal:

Previous plan of subdivision

Appellant’s proposal

10Dividing the property as proposed would result in certain Zoning By-law deficiencies. As such, the Appellant also seeks the following relief from the provisions of Zoning By-law No. 2010-001-ZO (“ZBL”):

LEGISLATIVE FRAMEWORK

Legislative Framework for Consent Appeals

11With respect to the Appeal pursuant to s. 53(19) of the Act, in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must:

a) be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the Town and can proceed by way of application for consent;

b) if the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans (in this instance, the York Region Official Plan (“ROP”) and the Town of Whitchurch-Stouffville Official Plan (“TOP”); the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services;

c) As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement (the “PPS”) and conforms to any applicable Provincial Plans (which, in this instance, is A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the information and material that was before it when making that decision;

d) Pursuant to s. 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent;

e) Finally, in general, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning in the public interest.

Legislative Framework for Minor Variance Appeals

12Pursuant to s. 45(1), the Tribunal must be satisfied that the requested minor variances:

a) maintain the general intent and purpose of the Official Plan;

b) maintain the general intent and purpose of the Town’s ZBL;

c) are minor in nature; and

d) are desirable for the appropriate development or use of the land, building or structure

13Additionally, the Tribunal must be satisfied that the variances are consistent with the PPS; conform to the GP; have regard to matters of Provincial interest and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making that decision.

THE HEARING

14In support of the Appeal, the Tribunal heard the testimony of Nick McDonald, a Registered Professional Planner, who was qualified by the Tribunal to provide land use planning opinion evidence. Cassandra Bagin, former Planner for the Town, appeared under summons by the Appellant and was also qualified by the Tribunal to provide land use planning opinion evidence. In addition, the Tribunal heard from the following individuals, who were qualified to provide opinion evidence in their respective fields of expertise: Heather Marcks – Natural Heritage and Ecology; and Greg Rapp – Civil Engineering.

15The planning witnesses were aligned in their analyses with respect to the proposed consent and minor variances, ultimately concluding they are representative of good planning, in the public interest and meet all necessary legislative tests. Focusing upon specific Provincial and local policies most applicable to the matters under appeal, they provided an overview of the ways in which the proposal achieves the requisite consistency and conformity with same.

16In the view of the planners, the Subject Property is underutilized and is suitable for intensification. This is because it is located within a settlement area and, being roughly three times larger than most of the lots in the area, it is capable of accommodating the three proposed dwellings. As a result of the foregoing and the fact that the proposal represents an efficient use of land and resources, it was opined that consistency with the PPS and conformity with the GP are achieved.

17The ROP identifies the Subject Property as “Protected Countryside/Hamlet” and major development within a hamlet is prohibited. Notwithstanding the foregoing, the planners explained that, because the proposal involves the creation of less than four lots and the construction of buildings with a ground floor area less than 500 square metres, it does not meet the definition of ‘major development’. In addition, the planners testified that the proposal satisfies policies in the ROP which require development to have adequate septic and water service (discussed in greater detail below). On the basis of all the foregoing, they opined the proposal conforms to the ROP.

18With respect to the TOP and the Ballantrae-Musselman Lake and Environs Secondary Plan (“SP”), the Tribunal’s attention was drawn to the goals and objectives of the SP, conservation and enhancement of existing natural systems and features; minimization of impacts of new development thereon; and strategically enhancing existing development to assist in the resolution of environmental concerns. It was noted that the TOP and SP permit redevelopment, provided it does not prejudice the development of other parcels of land in the area; does not require a plan of subdivision; and does not compromise natural heritage features. Policies specific to the Musselman Lake Community Area permit redevelopment where such development may result in an improvement in sewer and water services.

19It was explained that, in general, plans of subdivision are required in instances where more than three lots will be created and as such, it is appropriate for the Applications to proceed by way of consent. Given the large size of the subject property, the planners testified there would be no effect on the ability to develop other parcels in the area. With reliance upon conclusions in the natural heritage evaluation report authored by Ms. Marcks (discussed in greater detail below) the planners testified there would be no impacts on natural heritage features. It was further noted that the proposal contemplates both stormwater management (“SWM”) improvements and the installation of an updated and improved septic system.

20With respect to SWM improvements, Mr. Rapp testified that the proposed SWM plan is appropriate and would not have negative impacts upon neighbouring properties. He further testified that it meets the criteria (water balance, quantity control and quality control) outlined by the Town and the Lake Simcoe Region Conservation Authority (“LSRCA”). He described how permeable pavement and soak away pits will be used to achieve water balance objectives and he opined that post-development, there will be a “net increase infiltration” with a decrease in runoff and evapotranspiration.

21With respect to septic improvements and the concerns raised by the Participants in relation to phosphates being released into and potentially contaminating Musselman Lake, Mr. Rapp explained in detail that the proposed new system (using an anaerobic digester and Waterloo biofilter) discharges much cleaner water than the existing outdated septic system currently in use on the site. He specifically noted that the proposed system will filter wastewater to a level which is acceptable for swimming. Mr. Rapp also addressed Participant concerns in relation to potential impacts on neighbouring properties resulting from grading which might be required to accommodate proposed septic system on the subject site. He testified that the lot size will adequately accommodate the proposed system and further testified it cannot be installed without the implementation of grading mitigation measures which will be determined at the detailed design phase.

22Based on all the foregoing, the planners opined the proposal conforms to the TOP and the SP.

23The final policy document reviewed by the planners was the ORMCP, which Mr. McDonald characterized as the “pre-eminent” policy document applicable to the matters before the Tribunal. As such, a great deal of evidence focused upon how the proposal conforms to the policies therein, especially those which speak to servicing, as well as key natural heritage and hydrological features.

24It was explained that the subject property is currently on municipal water and private septic systems, which is considered partial servicing. The proposal contemplates the newly created lots will also be partially serviced. In an effort to minimize the impact of development on the ecological functions and hydrological features in the area, the ORMCP includes a general prohibition on the construction/expansion of partial services. However, in circumstances where partial services were approved for construction/expansion under the Environmental Assessment Act² before November 17, 2001, such systems are excepted from the general prohibition. The planners explained that, in order to address a serious health concern resulting from previous water contamination in the area, partial services (municipal water) were constructed with the requisite approval in the late 80’s/early 90’s. Since that time, many new partially serviced lots have been created within the settlement area and, in fact, the majority of the homes in the area are partially serviced by the municipal water system. Mr. McDonald testified that the Province ‘grandfathered’ this system and, as such, continued development on partial services is permitted within this settlement area.

25One of the key policies in the ORMCP speaks to ensuring the maintenance or restoration of self-sustaining vegetation to protect key natural heritage or hydrologic features from the impacts of development. Similarly, policies specific to lot creation within the ORMCP speak, inter alia, to avoiding encroachment on key natural heritage or key hydrological features.

26Ms. Marcks, who authored the natural heritage evaluation report provided in support of the Applications, testified the Subject Property contains no features which would be key or significant according to Provincial criteria and the proposed development would not result in negative ecological impacts of any kind for either the immediate area or the Oak Ridges Moraine, in general. In addition, she noted there would be no impact on offsite key natural heritage features based on water engineering data and the distance between the proposed development and nearby wetlands and woodlands.

27She also spoke to the ORMCP ‘Natural Linkage Areas’ policy, explaining the purpose of same is to improve or maintain linkages between core areas to support the movement of plants and animals within the Oak Ridges Moraine. While the southern portion of the subject property is designated Natural Linkage in the SP and contains a woodland, Ms. Marcks considers this to be a ‘cultural woodland’, because it is dominated by invasive or non-needed species of trees (i.e.: Manitoba Maple) and contains no rare or at-risk species of vegetation or wildlife. Based on her evaluation of the Subject Property and the physical separation of this particular woodland from others in the area, she opined it does not constitute a natural linkage area for the purposes of the ORMCP.

28In response to concerns raised by the Participants with respect to the removal of large mature trees to accommodate the proposed development, Ms. Marcks testified the Appellant will be signing a development agreement which includes tree compensation at a 3:1 ratio, with the Town or the LSRCA choosing the type of trees to be planted. As the majority of the trees on the site are Manitoba Maples, Ms. Marcks opined that, replacing these with native species will be an improvement from a natural heritage perspective. In addition to the foregoing, she provided an overview of the many mitigation measures contained within the natural heritage evaluation report, noting specifically that trees are not to be cut down during bird breeding season and any animals found on site are to be transported to a local wildlife centre. Finally, Ms. Marcks referred the Tribunal to a letter from the LSRCA indicating concurrence with her report and the mitigation measures outlined therein and recommending approval of the proposed consent and minor variances.

29Specific to the proposed consent, the planners reiterated that, as only two additional lots will be created, a plan of subdivision is not required for the proper and orderly development of the Town. Having evaluated the relevant criteria in s. 51(24) they concluded that the proposed consent:

• has appropriate regard for matters of Provincial interest;

• is not premature and is in the public interest, particularly as it is intended to create new housing, which is currently a key matter of public interest;

• achieves conformity with applicable official plans;

• is suitable for the number and type of dwellings proposed;

• has appropriate access to an adequate and established highway, Churchill Drive East;

• will result in the creation of lots of shapes and sizes that are consistent with the lot fabric in the area; and

• will neither impact natural resources nor result in flooding impacts based upon the evidence of Ms. Marcks and Mr. Rapp.

30Ms. Bagin reviewed the recommended conditions in relation to the consent, noting they appropriately address the concerns raised by commenting agencies. She recommended they be imposed in the event of a favourable finding for the Appellant, as they are appropriate and reasonable, having regard to the nature of the proposed development.

31With respect to the minor variances sought and the four tests in s. 45(1), the planners explained the maximum lot coverage and lot area requirements in the ZBL are intended to ensure on-site sewage can be accommodated. The Subject Property is an exceptionally large lot with an overly generous lot frontage not typical in this area. The three modestly sized lots proposed will remain large enough to accommodate the proposed dwellings as well as the proposed septic systems. With reference to a detailed comparison chart and aerial photographs of Churchill Drive East and the surrounding area, it was noted the majority of the parcels have less frontage and lot areas than is required in the ZBL and the proposed variances would be compatible with the varied parcel fabric on the street and in the Musselman Lake Community area in general. Beyond the three requested variances for each lot, it was noted that all other ZBL standards will be maintained. On the basis of the foregoing, the planners opined the requested variances are minor in nature, desirable for the appropriate development of the land and meet the general intent and purpose of both OPs as well as the ZBL.

32Finally, the Tribunal notes that, while not exhaustively addressed in this Decision, counsel for the Appellant and each of the witnesses spent a significant amount of time addressing the many concerns raised in the Participant Statements at the hearing. In response to what the Tribunal considered to be their central concerns - that approval of the proposal would adversely affect the rural character of their neighbourhood and, in general, set a negative precedent for future development in the area – Mr. MacDonald referred the Tribunal to the extensive photographic compendium included in Mr. Dziedzic’s statement.

33What the compendium reveals is an eclectic mix of lot areas and frontages as well as a mix of housing types, from old cottages with low rooflines to large modern homes. Accordingly, the planning witnesses opined there was no uniform character to be found either on Churchill Drive East or in the broader community. It was noted that, unlike other municipalities, there are no local policies requiring an analysis of character based on one street. Moreover, there are no urban design guidelines applicable to this community. Finally, it was noted that dividing the large site as proposed lots will result in three lots which more closely resemble others in the immediate area.

34In response to the assertion that the proposal would set a negative precedent for future development, the planning witnesses testified that the Town considers and assesses each application on its own merits. As such, unique physical features and circumstances particular to each subject site and application are taken into account. Beyond the subject property’s somewhat unique lot size and configuration setting it apart from other lots in the area, Ms. Bagin noted that although sufficient water supply allocation for this development exists, future development in the area will likely be constrained by issues with water supply. Mr. MacDonald opined that, in terms of precedent, this development could be said to set a positive precedent given the natural heritage and septic improvements which will be realized in the event of approval.

FINDINGS

35Notwithstanding the various observations, concerns and apprehensions expressed within the Participant Statements, the totality of the evidence proffered in support of the Appeal stood uncontroverted and unchallenged in any cogent manner. The Tribunal wholly accepted the detailed testimony of all the witnesses and is satisfied the proposed consent and minor variances meet all requisite legislative tests and are, in general, representative of good planning in the public interest.

36In so finding, due regard has been given to matters of Provincial interest, including but not limited to: the adequate provision of sewage and water services and waste management systems; the orderly development of safe and healthy communities; and the appropriate location of growth and development. Regard has also been given to the decision of the Town and the information it had available when making its decision.

37With respect to the matter of conditions to be imposed, the Tribunal finds the conditions recommended in the Staff Report, requested by the Town and consented to by the Appellant are reasonable, having regard to the nature of the proposed consents. Accordingly, the Tribunal will impose the conditions.

ORDER

38The Tribunal orders the Appeals are allowed in part and

a) Provisional consent is given, subject to the conditions contained in Attachment 1 to this Order; and

b) The requested minor variances to Zoning By-law No. 2010-001-ZO are authorized in conjunction with the fulfillment of the related consent decision.

“S. Braun”

S. Braun

MEMBER

“S. Bobka”

S. Bobka

MEMBER

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.

ATTACHMENT 1

CONDITIONS

1. Payment of 5% of the appraised value of the new lots be made to the Town of Whitchurch-Stouffville in lieu of parkland dedication. The appraisal shall be completed by a qualified appraiser, in accordance with Section 53 (13) of The Planning Act, R.S.O. 1990 as amended, which provides, in part, ‘for the purpose of determining the amount of the payment, the value of the land shall be determined as of the day before the day the provisional consent was given', plus an administrative fee of 10% incurred by the Town; and

2. Payment of the applicable Administrative Fee in accordance with the current Town’s Fees and Charges By-law per created lot, by certified cheque to the Town of Whitchurch-Stouffville; and

3. Written confirmation from the Corporate Services Department, Town of Whitchurch-Stouffville, that municipal addresses have been assigned to each of the new lots; and

4. Confirmation from the Director of Development Services that the equivalent of one (1) residential unit of water servicing has been allocated to each of the new lots from the remaining capacity in the Region’s Ballantrae system; and

5. Submission of three (3) white prints of a deposited Plan of Reference of the subject land, which conforms substantially with the application as submitted, and includes the calculated area of each part on the Plan; and

6. Written confirmation from the Development Services Department that the Owner has entered into a Development Agreement with the Town of Whitchurch-Stouffville concerning the proposed lots, which will include all related matters such as site engineering, lot grading and drainage, servicing and infrastructure assessment, landscaping, tree planting and tree compensation;

I. That the Owner shall pay the Town’s costs incurred in connection with the preparation and registration of the Agreement referred to in this Condition.

7. Submission of a fully executed Transfer / Deed of Land for each of the lands to be conveyed; and;

8. The Town of Whitchurch-Stouffville confirm that there is sufficient water servicing allocation from the existing capacity pool of the Ballantrae municipal water system to support this development to the satisfaction of the York Region Planning and Economic Development Branch; and

9. The Owner submit a final Natural Heritage Evaluation for review and approval to the satisfaction of the Town’s Planning Department and Lake Simcoe Region Conservation Authority in accordance with the requirements of the Oak Ridges Moraine Conservation Plan (ORMCP).

Footnotes

1. 1R.S.O 1990, c P. 13, as amended.
2. 2R.S.O. 1990, c. E. 18, as amended.