Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 20, 2022
CASE NO(S).: OLT-22-002199
PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Eric Calder
Subject: Consent - refused by Approval Authority
Description: To sever a parcel of land to create a new residential building lot.
Reference Number: B-04/21
Property Address: 5 Henry Street
Municipality/UT: Orangeville/Dufferin
OLT Case No: OLT-22-002199
OLT Lead Case No: OLT-22-002199
OLT Case Name: Calder v. Orangeville (Town)
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Minor Variance
Reference Number: A-15/21
Property Address: 5 Henry Street
Municipality/UT: Orangeville/Dufferin
OLT Case No: OLT-22-002200
OLT Lead Case No: OLT-22-002199
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Minor Variance
Reference Number: A-16/21
Property Address: 5 Henry Street
Municipality/UT: Orangeville/Dufferin
OLT Case No: OLT-22-002201
OLT Lead Case No: OLT-22-002199
Heard: May 24, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Eric Calder
Jonathan Minnes
Karey Shinn
Self-represented
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON MAY 24, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Eric Calder (“Applicant”) of 5, Henry Street (“Subject Property”) in the Town of Orangeville (“Town”) made an application for consent to sever the Subject Property into two lots and for minor variances required. The Committee of Adjustment (“COA”) denied the applications on December 1, 2021 (“Refusal”).
2The Applicant appealed the COA’s Refusal to the Tribunal.
3The proposed severance was for the Subject Property to be severed into two lots. The purpose of the consent application is to create a new building lot to accommodate a new detached dwelling containing a second dwelling unit. The retained parcel contains an existing dwelling which will be demolished and replaced with a new residential dwelling containing a second dwelling unit. Minor variances are required for both the retained lot and on the severed lot for the proposed buildings.
4The reliefs sought under Zoning By-law No. 22-90 (“ZBL”) are:
5For the severed lot:
reduce the minimum lot area from 464 square metres to 327 square metres;
reduce the minimum front yard from 6 metres to 3.2 metres;
to reduce the minimum rear yard from 7 metres to 4.5 metres;
6For the retained lot:
reduce the minimum lot area from 464 square metres to 327 square metres;
reduce the minimum lot frontage from 17 metres to 16.3 metres;
reduce the minimum front yard from 6 metres to 1.3 metres, and
reduce the minimum exterior side yard from 3.5 metres to 3.3 metres,
7The Applicant is applying for consent to sever a parcel of land which has an area of approximately 655.2 square metres (“sq m”), to create a new residential building lot.
8The severed lot will have a frontage on Henry Street of 20.1 metres (“m”), a depth of 16.3 m and an area of approximately 327.6 sq m . The severed parcel of land is proposed as a new building lot to accommodate a new detached dwelling containing a second dwelling unit.
9The retained lot will have a frontage on William Street of 16.3 m, a depth of 20.1 m and an area of approximately 327.6 sq m. The retained parcel of land contains an existing detached dwelling to be demolished and replaced with a new residential dwelling containing a second dwelling unit.
HEARING
10Karey Shinn, an adjacent property owner was granted party status without objections. Dejan Badnjar, a neighbour was granted participant status by consent of all parties. Mr. Badnjar’s participant statement was taken into consideration.
11The Tribunal provided Ms. Shinn, the usual guidance on her rights and obligations as a party. She confirmed her understanding and called, Professional Engineer, Stephen MacDougall who was qualified to give expert opinion on drainage engineering matters.
12The Applicant’s counsel Mr. Minnes called Town Planner, Larysa Russell who was under summons. The Tribunal qualified her to give expert opinion in Land Use Planning matters.
13The following were marked: Book of Documents- Appellant (Exhibit 1); Witness Statement of Ms. Russell (Exhibit 2); Party’s Statement (Exhibit 3A); Party’s Supplementary Statement (Exhibit 3B); Participant’s Statement (Exhibit 4); Stephen MacDougall’s Acknowledgement of Expert’s Duty (Exhibit 5A); Stephen MacDougall’s Curriculum Vitae (Exhibit 5B); and Stephen MacDougall’s Letter of Opinion (Exhibit 6).
ISSUE
14The issue before the Tribunal is whether the severance of the Subject Property with the creation of two lots as applied for in the consent to sever land application meets the general requirements set out in the applicable provincial planning legislation, municipal planning policies, the specific criteria of s. 51(24) of the Planning Act (“Act”) and represents good planning. The proposed severance must meet the requirements of the applicable policies of the official plans and zoning by-laws.
15The Tribunal shall also have regard to matters of Provincial interest and to information and material that the COA considered in making its decision.
16An Applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, i.e. that the variances maintain the general intent and purpose of the official plan and the zoning by-law, are desirable for the appropriate development or use of the land, building or structure and are minor in nature.
Participant’s Concerns.
17Mr. Badnjar’s participant statement is simply “This severance will have a negative impact on the narrow side lane where we live”. He did write to the COA by letter of November 29, 2021 outlining how the four tests under s. 45(1) of the Act were not met. His concerns were that the development was too large, not minor and not desirable. The two properties would create parking, privacy and noise problems. The proposal also does not meet by-law requirements of front, rear, side yards setbacks, building size/height and will lead to higher density in the area.
Party’s Witness
18Mr. MacDougall testified he visited the property at 42 John Street (Shinn’s property) in Orangeville on April 22, 2022 to review potential impacts to this site of the proposed severance of the neighbouring property at 5 Henry Street (subject property). Specifically, to provide an opinion regarding potential surface storm water drainage impacts on the Shinn’s property in the event a severance to the subject property is approved and new structures are constructed on that site.
19He commented that Shinn’s property (located at the corner of John Street and Henry Street) includes a two-storey house and a detached garage. The neighbouring subject property to the south (corner of Henry Street and William Street) includes a detached one and a half storey house. A severance of the subject property would potentially allow for the construction of a new residential dwelling between the existing house at the subject property and the garage at the Shinn’s property, the specific details of which have not been provided to him and are subject to confirmation.
20He states that Henry Street slopes down from William Street to John Street and based on the provided site plan for the neighbouring property at 8 Henry Street (another property), includes a change in elevation of at least 1.92 m (6’-3”) between the high point of William Street and the lot line between 5 Henry Street and 42 John Street. Similarly, the grade of the property at 5 Henry Street evidently slopes down towards the garage at 42 John Street and there does not appear to be a visible swale or other grading to separate surface water flow between the properties and away from the garage.
21He noted that these properties do not appear to include municipal storm water drains (catch basins) and appear to rely primarily on surface storm water infiltrating into the ground. It should be noted, he stated, that the severance of the subject property and the construction of a new dwelling would evidently impact both the site grading and surface area available for storm water infiltration into the ground, potentially negatively impacting the storm water drainage onto the Shinn’s property. He stressed that the current 2012 Ontario Building Code which would govern the construction of any new dwelling requires that “The building shall be located or the building site graded so that water will not accumulate at or near the building and will not adversely affect adjacent properties.” [2012 OBC Div. B – 9.14.6.1].
22He was given to understand that a proposed site grading plan has not been included as part of the property severance application and he is unable to comment on the potential impacts of the proposed work on the surface drainage at the Shinn’s Property. He recommended this information be obtained so that any potential impacts can be properly reviewed and taken into consideration as part of the application.
23At this point, the Tribunal notes that Mr. MacDougall, in cross-examination admitted that he has not given opinion for planning matters in his practice. His practice generally provides opinion for insurance adjusters for the evaluation of damage in forensic litigation for insurance claims. He has no experience in development application plans. He admitted that he does not have enough information on the grading and drainage matters for the subject property. He was not aware of any reason to suggest that the minor variances be precluded.
24The Town Planner, Ms. Russell has repeatedly clarified during cross-examination that matters of drainage, grading and tree preservation will be addressed at the Building Permit approval stage. Further, there will be conditions imposed for the severance to ensure such matters are addressed to the satisfaction of the relevant department in the Town.
25Ms. Shinn did not present any planning evidence or land use planning expert to support her concerns. The Tribunal, in the instant case is persuaded by and prefers the only planning evidence of Ms. Russell. Ms. Russell provided her view on the applicable policy framework and land use planning opinion in relation to the proposed severance and the conditions. She reviewed the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”).
26In her opinion, the proposed severance meets the criteria under s. 51(24) of the Act governing severances. It conforms to the official plan, is consistent with the PPS and conforms to the Growth Plan by facilitating a new housing lot in a residential neighbourhood that is served by existing infrastructure.
27The proposed development as facilitated by the variances, is desirable, minor, meets the general intent and purpose of the official plan and zoning, and is consistent/conforms with provincial policy, represents good planning, and warrants the Tribunal’s approval.
28In her opinion, the proposed development as facilitated by the consent represents good planning, and merits approval by the Tribunal.
SUBJECT PROPERTY
29The subject property is located on the southeast corner of William Street and Henry Street. The property is approximately 655 sq m (7,053 square feet) in area, with 16 m (53 feet) of frontage along William Street and a flankage (i.e., exterior side lot line) of 40 m (131 feet) of frontage on Henry Street. The property is located within a low-density residential neighbourhood, and contains a 1.5-storey residential detached dwelling, which is identified as a listed, non-designated property on the Town’s Municipal Heritage Register. A residential demolition application to remove and rebuild the existing dwelling was approved conditionally by Council on March 9, 2021.
30A conceptual Site Plan showing the proposed severance concept and building envelopes is included with the application.
ZONING BY- LAW
31Zoning By-law No. 22-90, as amended, zones the subject lands as Residential Second Density (R2), which primarily permits single-detached dwellings. Among other provisions, the R2 zone requires:
a minimum lot area of 464 square-metres;
a minimum lot frontage of 17 metres for corner lots and 15 metres for interior lots;
a minimum exterior side yard setback of 3.5 metres;
a minimum front yard setback of 6 metres;
a minimum rear yard frontage of 7 metres; and
a maximum lot coverage of 35% (for buildings that are 2 or more storeys in height).
32The resultant lots would not be in compliance with some of these provisions.
SEVERANCE
33Section 51(24) of the Act provides a list of matters to be regarded in relation to the division of land. Ms. Russell stated that staff has reviewed the consent application in light of the Act criteria and is satisfied that the consent can meet all applicable criteria in Section 51(24).
ANALYSIS AND FINDINGS
PPS
34The Tribunal finds that the proposed development is consistent with the PPS. It will facilitate modest intensification within an existing settlement area, that is served by existing infrastructure, and that has regard for the neighbourhood context. The PPS policies promote healthy, liveable and safe communities by the wise management of change through efficient land use and development patterns which the proposal achieves: including Policy 1.1.1 (a) the promotion of efficient development and land use patterns, and (b) accommodating an appropriate affordable and market-based range and mix of residential types.
Growth Plan
35The proposed development conforms to the Growth Plan. Policy 2.2.2.3 provides for a range of intensification throughout delineated built up areas. The proposal on the subject property would modestly contribute to the minimum intensification targets of the Municipality and encourage intensification generally throughout the delineated built-up area. This Policy supports modest intensification opportunities where they can be accommodated as on the Subject Property. The Tribunal finds that the proposal conforms to the Growth Plan.
S. 51(24)
36Section 51(24) of the Act denotes several criteria. Ms. Russell stated the Proposal has regard to the relevant criteria in (a) to (d); (f) to (i) and she provided her opinion on the respective criteria that are met. The Tribunal is satisfied that the Proposal has relevant regard to the criteria in s.51(24).
37The proposed development creates an additional lot which is consistent with the existing lotting pattern and zoning of this area. The Tribunal finds that this facilitates small scale intensification on the subject property. The proposed severance facilitates a built form that will be well designed on a site that has existing infrastructure and municipal services.
OP
38Ms. Russell stated that the Subject Property is located within the Built Boundary of the Town. The policies applicable generally support the achievement of complete communities through infill and intensification development of a minimum 50% of all residential development occurring within the built boundary, while still maintaining their character. Like the provincial policy framework, the Dufferin County Official Plan (“DOP”) is implemented through the Town’s Official Plan (“OP”).
39The proposed variances, in her opinion, meet the general intent and purpose of the Town’s OP. The OP designates the Subject Property as Residential (Schedule ‘A’: Land Use Plan) and ‘Low-Density’ (Schedule ‘C’: Residential Density Plan). Single Detached and two-unit dwellings are permitted up to a maximum density of 25 units per net developable hectare.
40Residential and low-density on Schedule A and C permit detached single-family and two unit dwellings within the designation. The overall intent of the Residential is to protect their stability and ensure that new development is compatible with the existing character of the neighbourhood.
41The Tribunal agrees with Ms. Russell that the series of criteria prescribed in s. E1.11 need be taken into consideration when evaluating the proposed development. The Tribunal finds that the proposal will be compatible with the surrounding single detached dwellings of the residential neighbourhood. The proposed severance and variances will be compatible in terms of lotting pattern, building scale with adjacent buildings and appropriate relationship to the adjacent street widths.
42The OP under s. 17 contains general policies for consents including criteria. The Tribunal finds that the criteria are met as the subject property is currently on full municipal services and the proposed severed lot will similarly be serviced. Nevertheless, the consent to sever will be subject to a consent agreement being executed between the Town and the Applicant to ensure proper municipal services are secured. The size and orientation of the two lots after severance are suitable for the proposed development as well as the suitability of the streets, Henry Street and William Street that the respective severed parcels front onto.
43The OP policies encourage the preservation of compatibility with existing housing development and residential intensification such as infilling. The proposed development achieves both objectives. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the OP.
ZBL
44Ms. Russell stated that under the ZBL, the Subject Property is zoned R2. This permits residential detached dwellings on lots with a minimum frontage of 17 m for corner lots and 15 m for interior lots and a minimum lot area of 464 sq m . The proposed lots will not be compliant with some of the provisions. The severed and retained lots will each be approximately 327 sq m .
45Her opinion is that the overall intent of the ZBL is to implement development that is compatible for the neighbourhood. The purpose of these applications is to facilitate construction of two new single detached dwellings and pending building approval, the proposed development will comply with the ZBL. The purpose of the minimum lot area and frontage requirements is to ensure that lot sizes are consistent in the neighbourhood area. Such zoning requirements facilitate consistent streetscapes and adequate space for permitted uses.
46Ms. Russell stated that the proposed reduction is a modest reduction that will not be noticeable from the street, particularly, the William Street streetscape is unchanged by the retained parcel as the existing frontage is 16.3 m. As for the Henry Street streetscape, it will be similar to that of 8 Henry Street (property directly across from the severed lot).
47The severed and retained lots are each sized to accommodate a new single detached dwelling within the maximum permitted coverage of 35% on the lot. Lot size and orientation of these parcels are in keeping with past severance and variance approvals (e.g., 19 William Street and 8 Henry Street) and the established character of this residential area.
48Ms. Russell stated that the purpose of minimum front and side yard setback requirements is to ensure consistent placement of buildings on lots in relation to adjacent properties. The purpose of the exterior side yard requirement is to provide adequate distancing of the dwelling from the abutting street.
49With respect to the retained lot, Ms. Russell stated that the existing building is oriented toward Henry Street. However, for the purpose of the By-law, the front yard is interpreted as William Street, thus Henry Street is the exterior side yard. The building setback is 3.3 m from Henry Street. The proposed dwellings on the retained and severed lots will follow this setback and condition. The adjacent property 42 John Street flanks onto Henry Street with a consistent setback and condition. As such the retained lot (3.3 m exterior side yard setback) and the severed lot (3.2 m front yard setback) to Henry Street are consistent and create a harmonious streetscape along the north side of Henry Street. The existing building has a 1.3 m front yard setback from William Street. The proposed dwelling will follow the existing setback and condition and will not impact the William Street streetscape.
50The purpose of rear yard setback is to provide adequate amenity area at the rear of the dwellings. The zone standard rear yard amenity area is 105 sq m. (lot frontage 15 m x 7 m rear yard setback). For the severed lot, the proposed rear yard setback is 4.5 m and with the lot width of 20.1 m, the rear yard amenity area is about 90 sq m. This minor reduction will have little impact on the useability of this adequate amenity space.
51Ms. Russell opines that the proposed variances maintain the general intent and purpose of the zoning by-law. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the zoning by-law.
Desirable
52In Ms. Russell’s opinion, the proposed variances would permit the rebuilding of the existing dwelling on the retained lot and the construction of a new dwelling on the severed lot.
53The Tribunal finds that the creation of two lots is desirable as this increases the residential housing stock in this neighbourhood. The retained lot will contain the rebuilt detached dwelling while the severed lot will contain a new detached dwelling compliant with zoning standards and compatible with the existing surroundings. This modest intensification will take advantage of the municipal infrastructure and services. The proposal will add residential housing in the community. The Tribunal is satisfied that the proposed development is desirable for the appropriate development of the Subject Property.
54The proposed variances are required to facilitate the construction of detached dwellings on the lots created by the severance. Each lot is of a sufficient size, to accommodate the detached dwelling. The lotting pattern is consistent with the lotting pattern of the residential area. The proposal is compatible with the existing neighbourhood character of single detached dwellings. There is no evidence of any adverse impact to adjacent properties and no negative effect on the existing streetscape is anticipated. The amenity spaces on the retained and severed lot are compatible with the streetscape and the neighbourhood. The Tribunal is thus satisfied that the variances are minor in nature.
55The Tribunal is satisfied that the proposed variances at the Subject Property have regard for the matters of provincial interest as set out in s. 2 of the Act in particular 2(h) the orderly development of safe and healthy communities, 2(j) on the provision of a range of housing and 2(r) on the promotion of built form that is well-designed.
56The Tribunal has reviewed the original application and the documents filed in the appeal, the Municipal records, the Minutes of COA decision and the Conditions of approval pertaining to consent application.
57Upon the only planning evidence provided by Ms. Russell, the Tribunal finds that the consent application meets the relevant criteria in s. 51(24) of the Act and has regard for Provincial interests.
58The Tribunal finds that the consent application is consistent with the policies of the PPS, conforms with the policies of the Growth Plan, maintains the general intent and purpose of the DOP, the OP and the ZBL, represents good planning and in the public interest. Accordingly, the Tribunal will authorize the consent to sever the Subject Property into two lots as proposed subject to conditions of approval.
59Having considered the uncontradicted evidence of Ms. Russell, the Tribunal accepts that the Conditions are reasonable and will impose these conditions for the approval of the proposed severance.
ORDER
60The Tribunal orders that the Applicant’s appeals are allowed and provisional consent to sever land is granted subject to the Conditions attached as Attachment 1 to this order.
61The Tribunal orders that the variances to Zoning By-law No. 22-90 are authorized.
“T.F. Ng”
T.F. NG
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
Consent Application Conditions
Consent Application File No. B04-21, to sever a parcel of land which has an area of approximately 655.2 square metres to create a new residential building lot be approved, subject to the following conditions:
- That the applicant/owner enters into a Consent Agreement with the Town pursuant to Subsections 53(12) and 51(26) of the Planning Act, to be registered on title, which will require:
a. The applicant/owner to submit a servicing plan and a grading plan prepared by a Professional Engineer, and a topographical survey to the satisfaction of the Transportation and Development Division.
b. The applicant/owner to implement the Low Impact Development design features as included in the Low Impact Development Brief, prepared by Criterium Jansen Engineers, dated September 9, 2021, to the satisfaction of the Transportation and Development Division.
c. The applicant/owner submit an arborist report indicating the health of the existing trees along Henry Street, and make best efforts to protect them where they do not interfere with the proposed driveway, to the satisfaction of the Planning Division.
d. Any building permit application submission to include elevation drawings to ensure that the design of the dwelling is in character with the neighbourhood, to the satisfaction of the Planning Division.
That the applicant/owner has paid cash-in-lieu of parkland in accordance with Section 53(13) of the Planning Act and the Town’s Parkland Dedication By-Law No. 47-2012.
That the Ontario Land Tribunal has approved the concurrent Minor Variance Applications File Nos. A15-21 and A16-21.
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