Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 04, 2022
CASE NO(S).:
OLT-21-001035
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
2628934 Ontario Inc.
Subject:
Severance
Property Address/Description:
386 East 25th Street
Municipality:
City of Hamilton
Municipal File No.:
HM/B-20:35
OLT Lead Case No.:
OLT-21-001035
OLT Case No.:
OLT-21-001035
OLT Case Name:
2628934 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
2628934 Ontario Inc.
Subject:
Minor Variance
Variance from By-law No.:
Zoning By-law No. 6593
Property Address/Description:
386 East 25th Street
Municipality:
City of Hamilton
Municipal File No.:
HM/A-20:126
OLT Lead Case No.:
OLT-21-001035
OLT Case No.:
OLT-21-001036; OLT-21-001037
Heard:
October 18, 2021 by Video Hearing
APPEARANCES:
Parties
Counsel
2628934 Ontario Inc.
J. Meader
City of Hamilton
A. Flarity
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
12628934 Ontario Inc. (“Applicant/Appellant”) owns the property known municipally as 386 East 25th Street (“subject property/lands”). They applied to the City of Hamilton (“City”) Committee of Adjustment (“COA”) for a consent and for variances to permit a conveyance of a 9.85 metres (“m”) by 37.5 m parcel of land having an area of 360.2 square metres (“sq m”), and to retain a 9.59 m by 39.9 m parcel of land having an area of 360.2 sq m. The Variances requested are front yard parking and proposed minimum lot size of both the severed and retained parcel to facilitate the consent.
2The Applications were denied by the COA at its meeting on April 22, 2021. At that time, the Applicant appealed the decision for the consent, pursuant to s. 53(19) and for the variances under s. 45(12) of the Planning Act (“Act”).
3Development Planning staff had recommended denial of the consent because the proposed lots did not reflect the general scale and character of the neighbourhood and it did not conform to the Official Plan (“OP”) and the Zoning By-law.
4The subject lands are identified as “Neighbourhoods” on Schedule “E” – Urban Structure and designated “Neighbourhoods” on Schedule “E-1” – Urban Land Use Designations in the Urban Hamilton Official Plan (“UHOP”).
5In the City Zoning By-law No. 6593, the subject lands are zoned “C” District (Urban Protected Residential), which permits single detached dwellings, subject to the applicable provisions.
SUBJECT SITE AND NEIGHBOURHOOD CONTEXT
6The subject lands are located south of Fennel Avenue East and east of Upper Wentworth Street. These lands are situated in a neighbourhood which primarily consists of a range of single detached dwellings, semi-detached dwellings and townhouse dwellings.
7A number of existing amenities are available in close proximity to the subject lands. The nearest park is located within 250 m of the subject lands. In addition, there are nearby schools, which service the existing neighbourhood.
8The lands are 723 sq m in size having approximately 9.4 m of frontage onto East 25th Street. The road bends slightly to the south-east in front of the subject lands, resulting in a curved front property line.
9Directly to the east of the subject lands is an existing townhouse development. There also exist semi-detached dwellings interspersed in the neighbourhood, which are owned by City Housing Hamilton. The townhouse complex directly east of the subject lands is also owned by City Housing Hamilton.
AMENDMENTS TO APPLICATION
10As per s. 45(18.1.1) of the Act, revisions made to a proposal at a Hearing are required to be recirculated to the prescribed persons unless the application amendments are considered to be minor. The proposal before the Tribunal has been amended to reduce the number of variances by meeting the minimum lot size and the removal of the side yard setback variance to bring the proposal into greater conformity. No changes are proposed to the building footprint or the configuration of the proposed severance that was heard at the COA on April 21, 2021.
11The Tribunal finds that the changes are indeed minor. The Tribunal accepts this evidence and finds that the amendments are minor in nature with the Town fully supporting the request. Therefore, no further notice is required under s. 45(18.1.1) of the Act.
PROPOSAL AND RELIEF REQUESTED
12The subject submission proposes the creation of two lots that front onto East 25th Street, with the existing dwelling at 386 East 25th Street to be demolished and two new single detached dwellings are proposed to be constructed. This will result in a total of two building lots and two new single detached dwellings.
Severance
13The lots were revised at the time of application in order to maintain a minimum lot size of 360 sq m, namely the slight jog in the rear property line to allow for Part 1 to maintain a minimum lot size of 360 sq m.
Variances
14Part 1 (Retained Lands)
a. To permit a minimum lot width of 9.5 m, whereas a minimum lot width of 12 m is required.
b. To permit a 0.0 m maneuvering space instead of a minimum 6 m aisle width maneuvering space.
c. To permit two required parking spaces in the front yard, whereas no required parking space for a single-detached dwelling is permitted in a required front yard.
15Part 2 (Severed Lands)
a. To permit a minimum lot width of 9.8 m, whereas a minimum lot width of 12 m is required.
b. To permit a 0.0 m maneuvering space instead of a minimum 6 m aisle width maneuvering space.
c. To permit two required parking spaces in the front yard, whereas no required parking space for a single-detached dwelling is permitted in a required front yard.
16In this Appeal, the issue before the Tribunal is whether a consent meets the criteria established in s. 51(24) and whether the variances requested meet the four tests set out in s. 45(1) of the Act, namely, if granted: (a) maintains the general intent and purpose of the City’s UHOP; (b) maintains the general intent and purpose of the City’s Zoning By-Law No. 6593 (“ZBL”); (c) are minor, and (d) are desirable for the appropriate use and development of the lands.
17Additionally, the Consent and Variances must also be consistent with the Provincial Policy Statement 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest under s. 2 of the Act and to any decision made by the Committee, as well as all information and material that the Committee considered in making its decision.
PLANNING EVIDENCE AND ANALYSIS
18The Tribunal heard from Ryan Ferrari, a Candidate Member of the Canadian Institute of Planners and a Candidate Member of the Ontario Professional Planners Institute. Mr. Ferrari is currently a Member of the Canadian Association of Certified Planning Technicians and was qualified, without objection, as an expert in Land Use Planning.
19Mr. Ferrari presented, on behalf of the Applicant, at the COA meeting in April 22, 2021. Between January 26 and March 9, 2021, he worked with the Architect to revise the proposal in light of staff comments received on the previous submission and in order to reduce the bulk and massing of the proposed dwellings. He opined that the outcome of this work included proposed dwellings that were reduced in size and were moved toward the rear property line. This removed variances for side yard setbacks.
20In his opinion, the Consent and Variances are consistent with the PPS, conform to the UHOP, and have proper regard for the matters set out in s. 51(24) of the Act.
21Ohi Izirein, Senior Project Manager (Suburban Team) with the City’s Planning and Economic Department provided contextual evidence and an overview of his planning policy analysis leading to his conclusions and recommendation that the proposed lots did not reflect the general scale and character of the neighbourhood and it does not conform to the UHOP and the ZBL.
Regard for the Planning Act
22It was Mr. Ferrari’s opinion the proposed consent conforms to the OP and a plan of subdivision is not necessary as per s. 53(1) of the Act. He stated the proposal has frontage onto a public road and there are existing municipal services available. As such no expansion of existing infrastructure is necessary.
23Mr. Ferrari opined that the proposal has regard for matters of Provincial interest found in s. 2 in that it: represents orderly development on lands with frontage on an existing municipal road; will contribute to the range of housing in the City; and the lots are adequately sized to accommodate an efficient site layout that will not create challenges in terms of public health and safety; it represents a limited form of residential development that is compatible with the existing area character and will contribute to the housing mix in an existing urban area.
24It was Mr. Izirein’s overall opinion that the Provincial planning interests would not be furthered by allowing the proposed severance without first determining whether the variances meet the four tests as outlined in the Act. In his opinion the relief sought through the variances do not meet the general intent of the UHOP or the ZBL.
The Growth Plan for the Greater Golden Horseshoe (2019) (“Growth Plan”)
25Mr. Ferrari opined the proposal will assist in facilitating the Growth Plan targets for allocating residential redevelopment within the delineated built-up area.
26Mr. Izirein, testified that the proposal to create two new lots within the built boundary with existing municipal water and wastewater services in an established neighbourhood has merits in view of this provincial direction except that these policies must be balanced with other policies related to compatibility, balanced growth and development.
27Having regard for the matters under s. 51(24) of the Act, he stated he is not satisfied that the proposed consent conforms to the OP, or that the dimensions of the proposed lots are suitable.
Provincial Policy Statement
28For Policy 1.1.1, Mr. Ferrari opined that the proposal represents an efficient development pattern, utilizing existing services within an established neighbourhood and within close proximity to parks and nearby schools.
29With regard to Policy 1.1.3, the subject lands are situated within a settlement area and Policies 1.1.1.2, the subject lands are located along an existing road containing existing municipal services as the City provides nearby bus routes supportive of active transportation in proximity to the subject property.
30He opined Policies 1.1.3.3 and 1.1.3.5 promote intensification within an established neighbourhood stating the proposed development assists in achieving the minimum intensification targets, which have been established by the City.
31In his professional opinion, the proposal has sufficient regard for matters of provincial interest.
32Mr. Izirein stated the subject lands are identified within a “Settlement Area”. Section 1.1.3.3 of the PPS authorizes planning authorities to identify appropriate locations to accommodate housing and ensure adequate supply of housing through intensification and redevelopment within settlement areas, taking into consideration existing building stock in areas with suitable infrastructure and public service facilities.
33He referred to s. 1.1.3.3 of the PPS, which authorizes planning authorities to identify appropriate locations to accommodate housing and ensure adequate supply of housing through intensification and redevelopment within settlement areas, taking into consideration existing building stock in areas with suitable infrastructure and public service facilities, it was his opinion this proposal is not within the City’s identified area established for intensification or redevelopment.
Urban Hamilton Official Plan
34The subject lands are identified as “Neighbourhoods” on Schedule “E” – Urban Structure and designated “Neighbourhoods” on Schedule “E-1” – Urban Land Use Designations in the UHOP.
35Mr. Ferrari explained the proposed lots would be used for single detached dwellings. In accordance with s. B.2.4.2 – Residential Intensification, and as required by Policy E.3.2.4, he stated that the proposed development will enhance and be compatible with the scale and character of the existing residential neighbourhood.
36Compatibility is defined in the UHOP as follows:
Means land uses and building forms that are mutually tolerant and capable of existing together in harmony within an area. Compatibility or compatible should not be narrowly interpreted to mean “the same as” or even as “being similar to”
37He stated Policy E.2.6.7 discusses the intended scale of lands identified as Neighbourhoods on Schedule E – Urban Structure. It notes that Neighbourhoods are physically stable areas, with each neighbourhood having a unique scale and character. He noted that changes that are compatible with the neighbourhood and are permitted in accordance with the Policies noting that applications for residential intensification should be evaluated in consideration of the local context.
38He noted that the UHOP discusses the function and scale of lands identified as Neighbourhoods. These policies speak to allowing a full range of residential densities as well as supporting uses such as local commercial uses to assist in achieving a complete community.
39In his opinion, the proposal is consistent with the above definition of compatibility. The proposal is not a significant departure from the general neighbourhood scale and character and is mutually tolerant and capable of existing in harmony within the neighbourhood. The proposal will facilitate the establishment of two single detached dwellings, which are generally in keeping with the built form and size of the dwellings found in this neighbourhood.
40Regarding design, Policy E.3.2.7, he stated that the proposal speaks to requiring efficient, safe and attractive development within the Neighbourhoods designation. Specifically, the policy notes that surface parking areas shall not be dominant between the building and the street. He opined, the amended proposal achieves this principle by providing a balance of landscaping and hardscaping on the site.
41It was his opinion that the proposal is in keeping with the neighbourhood character in balancing the need for on site parking and front yard landscaping to ensure that parking does not dominate along the streetscape.
42With regard to Urban Design, Mr. Ferrari referred the Tribunal to Policy B.3.3.1 that identifies general urban design goals that are applicable to all developments across the City. Policies B.3.3.1.5 and B.3.3.1.8 are applicable to this development ensuring that new development is compatible with the character of the existing environment and promoting intensification. It was his opinion that the proposal is consistent with the general lot fabric and scale of the existing neighbourhood, primarily consisting of both one and one-and-half-storey dwellings with single-wide driveways. As the redevelopment is composed of single detached dwellings that are in keeping with the required Zoning By-law setbacks, it was his opinion that the redevelopment represents an appropriate and compatible form of intensification for this neighbourhood.
43He turned next to Neighbourhoods Designation, more specifically to Policies E.3.2.3 and E.3.4.3 and noted that in low density residential areas, single detached dwellings are permitted. The proposal conforms with respect to building height with the maximum height permitted being three (3) storeys.
44It was his overall opinion, the proposal maintains compatibility with the existing neighbourhood, as the lot widths are in keeping within the range of established lot widths found in this neighbourhood. The design of the dwellings is in keeping with the general scale and massing of other dwellings in this neighbourhood and the balance of front yard landscaping and the driveway is consistent with the design and streetscape of the surrounding neighbourhood. No variances are being sought for setbacks, thereby having no impacts on privacy and overview.
45Mr. Izirein stated the proposed 9.5 m lots are smaller in width than any other existing residential lots in the surrounding area. The width of proposed lots would be out of character with the existing neighbourhood, where the lot widths for single detached dwelling are between 10.5 m and 18 m. He stated that the lots referred to by Mr. Ferrari were almost exclusively located in the south eastern quadrant, south western quadrant and northern portion of the neighbourhood. He stated that there are more appropriate locations other than the Subject Property for lots of this size to be located.
46It was his opinion that the consent application for severance does not meet the criteria outlined in Policy B.2.4.2.2 for lot creation, which states that intensification shall be evaluated on: b) the relationship of the proposal to existing neighbourhood character so that it maintains, and where possible, enhances and builds upon desirable established patterns and built form; c) the development’s contribution to maintaining and achieving a range of dwelling types and tenures; d) the compatible integration of the development with the surrounding area in terms of use, scale, form and character.
47In turning to Policy F.1.14.3 Lot Creation – Urban Area, he informed the Tribunal the lots to be created would not reflect the established patterns and character of the existing neighbourhood, and the dwelling units to be erected would not reflect the neighbourhood scale or maintain the existing streetscape patterns.
48He stated that, in this regard, the City encourages the use of innovative and creative urban design techniques; e) the development’s contribution to achieving the planned urban structure as described in Policy E.2.0 – Urban Structure; g) the ability of the development to comply with all applicable policies.
49When considering an application for a residential intensification development within the Neighbourhoods designation, he emphasized the following matters shall be evaluated: b) compatibility with adjacent land uses including matters such as shadowing, overlook, noise, lighting, traffic, and other nuisance effects; c) the relationship of the proposed building(s) with the height, massing, and scale of nearby residential buildings; d) the consideration of transitions in height and density to adjacent residential buildings; e) the relationship of the proposed lot(s) with the lot pattern and configuration within the neighbourhood; f) the provision of amenity space and the relationship to existing patterns of private and public amenity space; g) the ability to respect and maintain or enhance the streetscape patterns including block lengths, setbacks and building separations; h) the ability to complement the existing functions of the neighbourhood.
50In referring to Policy E.3.2.4, the proposed development must meet the requirements by enhancing and being compatible with the scale and character of the existing residential neighbourhood. It was his professional opinion that through the creation of a new lot in the existing neighbourhood, and the dwelling units to be erected would not reflect the neighbourhood scale or maintain the existing streetscape patterns.
City of Hamilton - Zoning By-law No. 6593
51The subject lands are zoned “C” District in the City of Hamilton’s ZBL. The “C” Zone permits single detached dwellings.
52Mr. Ferrari opined that other lands within this neighbourhood are also zoned “D” District, which permits single detached, semi-detached and townhouse dwellings with the same performance standards as the “C” Zone.
53Mr. Ferrari drew attention to the southwest portion of this neighbourhood and is zoned “D/S- 432” District Zone, which permits single detached, semi-detached, and townhouse dwellings with a reduced lot size (232 sq m) and lot frontage (7.8 m) emphasizing that within this same neighbourhood, there are lots which are permitted to be much smaller in size and width than what is proposed.
54Mr. Ferrari stated that it was his overall opinion that the consent application and implementing minor variance application maintains the general intent of the “C” Zone. The Variances applied for will establish appropriate land use performance standards for the subject property.
55Mr. Izirein informed the Tribunal that the subject lands are identified by the City as being zoned “C” District (Urban Protected Residential), which permits single detached dwellings, subject to the applicable provisions.
56He noted, the width of the proposed lots is atypical. Therefore, the variance does not maintain the intent of the Official Plan or the Zoning By-law, and it is not desirable or minor in nature.
57Two parking spaces are proposed to be located within the front yard, whereas the Zoning By-law permits only one parking space in the front yard (Variance 2).
58The landscaped area of the front yard is proposed to be 38% of the area of the front yard for the retained lot and 39% for the severed lot, whereas a minimum 50% landscaped area is required by the Zoning By-law resulting from the limits on parking spaces. (Variance 3).
59He opined that the intent of the zoning provision in permitting a maximum of one parking space in the front yard, is to ensure that parking areas are not the visually dominant elements on the streetscape. The front yards are to be landscaped to improve the aesthetics from the public realm, and to provide permeable area for drainage purposes.
60A double driveway is proposed in the front yard even though the proposed lot widths are smaller than the typical lot widths of between 10.5 m and 18 m in the neighbourhood. While driveway parking and front yard parking are typical for the area, double driveways are typically found on the wider lots and these tend to meet or exceed 50% of the front yard landscaped area requirement.
61Mr. Izirein stated the proposed 12 m long driveway in the front yard for parking is two times the length of the typical driveways in the area. While front yard parking is typical in this established neighbourhood, he opined the proposed long driveway and reduced landscaped area are not typical or desirable. It was his evidence that this was in part to provide more street parking due to the increased spacing between driveways on wider lots. He stated that this was meant in part to benefit the townhouse complex on the opposite side of the street which would likely have surplus parking needs in addition to the spaces provided by communal interior parking lot located within the complex.
62He opined that the proposed Driveway Variances are not minor in nature, desirable for the appropriate development of the neighbourhood and do not
conform with the intent of the zoning by-law or UHOP. It was his opinion that the severance requested could not be accomplished without the requested variances and therefore cannot be supported.
63He stated that although Variances 2 and 3 maintain the purpose and intent of the OP, he was not satisfied that the purpose and intent of the ZBL is maintained. He maintained that Variances 2 and 3 are not desirable for the appropriate development of the land, nor minor in nature.
Disposition and Order
64The Tribunal, having heard and considered the land use planning evidence and opinions of Messrs. Ferrari and Izirein, prefers the evidence of Mr. Izirein and finds that the development proposed is uncharacteristic of the neighbourhood.
65The Tribunal recognizes that the City of Hamilton through the UHOP has identified lands for intensification. The subject property is not identified as being part of those lands identified by the City.
66The Tribunal having regard to the intensity of use is of the opinion that such development would not be appropriate for the lands and finds that the requested consent is inconsistent with the general intent and purpose of the UHOP.
67The Tribunal finds that the proposed development is not compatible with the neighbourhood scale nor will it maintain the streetscape patterns found in the neighbourhood. The request to permit two parking spaces to be located within the front yard results in the landscaped area of both the retained and severed lots being deficient in area and are not minor in nature.
68The Tribunal having regard to the evidence is of the opinion that the relief requested is beyond that of a minor nature and would not be desirable for the subject property as it would result in zoning standards which are not desirable for the appropriate development of the lands.
ORDER
69The Tribunal orders that the appeals are dismissed.
“D. Chipman”
D. chipman
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.