Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 21, 2022
CASE NO(S).: OLT-21-001729
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: 1377586 Ontario Limited
Appellant: Eric Cartier
Subject: Minor Variance
Property Address/Description: 287 London Road
Variance from By-law: 85 of 2002
Municipality: City of Sarnia
Municipal File No.: A69/2021
OLT Lead Case No.: OLT-21-001729
OLT Case No.: OLT-21-001729
OLT Case Name: Cartier v. Sarnia (City)
Heard: June 13, 2022 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| 1377586 Ontario Inc. (Applicant) | Analee Baroudi* |
| Eric Cartier (Appellant) | Self-represented |
DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Eric Cartier (the “Appellant”) against the decision of the City of Sarnia (the “City”) Committee of Adjustment’s (the “CoA”) decision on October 12, 2021, in relation to a minor variance from Zoning By-law No. 85 of 2002 (the “ZBL”) concerning 287 London Road (the “Subject Property”).
2In a related application, 1377586 Ontario Inc. (the “Applicant”) is requesting permission to sever the Subject Property into two parcels one severed and one retained both with frontage onto Mitton Street North. The proposed severed lot would have a frontage of 12.75 metres (“m”) and an approximate lot area of 373.97 square metres (“m2”), the retained lot would have a frontage of 14.528 m and an approximate lot area of 430 m2. The consent application was approved.
3The minor variance application A69/2021 accompanied the proposed severance application as a condition for the consent to permit a reduced frontage for the retained lot of 14.528 m, to permit a reduced minimum lot size of 430 m2 and to permit a reduction in required parking spaces from 3 to 2.
4The application was originally heard during the September 14, 2001 CoA meeting and was deferred to allow for additional information from the Applicant, concerning elevations of the proposed dwellings specifically, the side and rear yard elevations.
5Subsequently, the second staff report included the proposed elevations, and the CoA approved the application on October 12, 2021.
6The Appellant filed an appeal expressing several concerns including non- conformity to the OP and ZBL, the proposed application is not characteristic of the neighbourhood, the reduced lot size of 14% is not minor in nature, driveway location and Traffic safety concerns and issues with the CoA process and comments.
PLANNING EVIDENCE
7Eric Rempal is a planner for the City, who appeared under summons before the Tribunal to give expert testimony. Mr. Rempal prepared the report to the CoA recommending that the variances be authorized.
8On consent of the Parties, and after review of Mr. Rempal’s professional qualifications (marked as Exhibit 2) and confirmation of his Acknowledgement of Expert Duties (marked as Exhibit 1), the Tribunal qualified Mr. Rempal to provide expert testimony in the field of land use planning.
9The Appellant advised the Tribunal that he would be self-represented. Counsel for the Applicants had no objection that the Appellant provide factual evidence (in light of the Appellant not intending to call any other witness) but with no indication of his qualifications or experience, counsel did ask that the Appellant’s testimony be confined to factual information and not opinion evidence. The Tribunal so directed.
10The Tribunal is satisfied based on the submission of evidence that the four tests under s. 45(1) of the Planning Act (the “Act”) have been met by this application and that the appeal should be dismissed for the reasons that follow.
The Requested Variances
11The Subject Property is zoned Urban Residential 2-1 (UR2-1). The proposed severed lot conforms with the minimum requirements for single detached dwellings. The proposed retained lot permits the use of a duplex, but requires the following variances:
| Section Varied | Zoning By-law Requirements | Variance Requested |
|---|---|---|
| 1. 8.3.1.1(1) | A lot size of 500 m2 is required for a duplex | To permit a reduced lot size of 430 m2 for a duplex |
| 2. 8.3.1.1(2) | A minimum frontage of 15 m is required for a duplex | To permit a reduced frontage of 14.528 m for a duplex |
| 3. 3.37(2) | A minimum of 3 parking spaces are required for a duplex. Tandem parking spaces are not permitted. | To reduce the minimum parking requirement to 2 spaces. 1 additional space will be provided in tandem. |
SITE CONTEXT
12The Subject Property is located at the corner of London Road and Mitton Street in the City of Sarnia. The Subject Property is approximately 804 m2 in size when accounting for a proposed 3.05 m road widening along London Road. The lands were previously occupied by a gas bar and convenience store that was demolished in 1991. The lands have since been decommissioned to the satisfaction of the Ministry of the Environment Conservation and Parks.
13In 2003, ZBL Amendment No. 93/2003 was passed to permit a double duplex containing a total of 4 dwelling units on site. This decision was appealed and ultimately overturned by the Ontario Municipal Board (“OMB”) on the grounds that the proposal would be considered overdevelopment and would not represent good land use planning. During the OMB hearing, the Appellant suggested an alternate proposal that would see two dwellings on the property that would front onto Mitton Street, a duplex on the corner of London Road and Mitton Street, and a single detached dwelling on the southern portion of the property.
14The property owner has since modified their proposal to follow the recommended alternate proposal accordingly. The proposal would see the creation of a new lot at the southern end of the property that would have a frontage of 12.75 m and a lot size of 373.97 m2 and would meet all the minimum requirements for a single detached dwelling. A duplex is proposed on the retained lands that would have a frontage of 14.528 m on Mitton Street and an area of approximately 430 m2. The proposed duplex would front onto Mitton Street and would eliminate the existing access off London Road.
LEGISLATIVE TESTS
15It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Planning Act are met is on the Applicant. In addition, in making a decision under the Planning Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.
16Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Planning Act, namely that the requested variances:
i. maintain the general intent and purpose of the Official Plan (the “OP”),
ii. maintain the general intent and purpose of the ZBL,
iii. are desirable for the appropriate development or use of the land, building or structure, and,
iv. are minor in nature.
City of Sarnia Official Plan
17The Appellant contends the proposal does not respect or reinforce the existing physical character of the surrounding neighbourhood. According to the Appellant the CoA determined that the physical characteristics of the surrounding neighbourhood were met but they specifically stated that their focus was on Mitton Street versus London Road which is the main arterial road of this subject corner lot. The Appellant described the neighbourhood as “unique” which has “Stately homes” with large lots that are set back.
18Mr. Rempal advised the Subject Property is designated “Urban Residential” in the City’s OP. This designation permits low-density development, including duplexes, triplexes, semi-detached dwellings and single detached dwellings.
19Mr. Rempal highlighted Section 4.4.2 (2) of the OP which states development in Urban Residential designated areas must respect and reinforce the existing physical character of the surrounding neighborhood, including in particular applicable subsections A to H. Mr. Rempal went through each subsection outlining how the application conformed to each respective sub-section;
a) patterns of streets, blocks and lanes, parks and public building sites;
Mr. Rempal advised this section was not applicable as no new streets, blocks, etc are proposed.
b) size and configuration of lots;
Mr. Rempal advised there are a wide variety of lot sizes in the vicinity of the Subject Property, including many residential lots that have a similar lot size. Directly to the south and north along Mitton Street, several single detached dwellings are located on lots with less than 300 m2. Fronting onto London Road, nearby 273 London Road and 286 London Road both have lot sizes similar to the proposed size for the duplex lot on the Subject Property. To the northwest there is a 900 m2 development with four townhouse units that provide a similar lot size per unit as the proposed duplex. While there are many larger lots in the area as well, there is no one dominant lot size in the neighbourhood. In Mr. Rempal’s opinion the proposed lot size would fit in well with the significant number of smaller lots in the area.
c) prevailing building type(s);
Mr. Rempal advised there are also a wide variety of building types in the immediate vicinity of the Subject Property. Townhouses, apartments, duplexes and single detached dwellings are all present in the area. There is also a low-density commercial establishment across the street. The proposed duplex is a permitted use in the Urban Residential designation and the UR2-1 Zone. In Mr. Rempal’s opinion the proposed building types reflect the diversity of building types already present in the neighbourhood.
d) height, massing, and scale of nearby residential properties;
Mr. Rempal stated the height, size, and scale of the proposed duplex building conforms with the setbacks and lot coverage requirements in the ZBL and would be of a similar size to many other structures in the area.
e) setbacks of buildings from the street or streets;
Mr. Rempal advised the setbacks proposed for the duplex and single detached dwelling are similar to or exceed the setbacks provided by most of the nearby properties fronting onto Mitton Street. Several of the smaller properties fronting onto London Road also have setbacks similar to the proposed development, including 286, 269, and 273 London Road, and the four townhouse units at 260-266 London Road. The proposed setbacks also conform with all the zoning requirements for the UR2-1 Zone. The proposed exterior side yard setback from the London Road lot line of 3 m is measured from the 3.05 m County Road widening that is a condition of the consent application. As a result, the development would be a minimum of 6.05 m from the edge of the current lot line. Six (6) nearby properties on London Road are closer to London Road than the proposed duplex, and four (4) that would have a very similar setback, including the previously mentioned townhouse property and apartment building. In Mr. Rempal’s opinion, the proposed front and exterior side yard setbacks are not out of out of place with the existing physical character of the neighbourhood.
f) prevailing patterns of rear and side yard setbacks and landscaped open space;
Mr. Rempal stated the proposed lots would provide rear and interior side yard setbacks similar to or greater than all nearby lots of a similar size, including the previously mentioned smaller lots on Mitton Street and London Road. The lot would conform with the required minimum setbacks and minimum landscaped open space coverage of 40%.
g) continuation of special landscape or built-form features that contribute to the unique character of a neighbourhood; and
Mr. Rempal advised there are no special landscape or built form features that are applicable to the surrounding neighbourhood as a whole. The proposed lots would both conform to the minimum landscaped open space requirements in the ZBL.
h) conservation of heritage buildings, structures and landscapes.
Mr. Rempal testified there are several properties along London Road that are listed in the City of Sarnia Heritage Register. However, there are no nearby properties that are on the Ontario Heritage Act Register. According to the Provinces’ online database, the nearest property on the Ontario Heritage Act Register is 223 London Road and is approximately 200 m to the west of the Subject Property. In Mr. Rempal’s opinion, the heritage value of this property would not be impacted by the proposed development from the Subject Property.
20In Mr. Rempal’s opinion the proposed development as permitted by the requested variances, meets the requirements for development in the Urban Residential designated lands and therefore meets the general intent and purpose of the OP.
21In closing submissions Counsel for the Applicant referenced Ontario Land Tribunal (“OLT”) Case No. PL190637 (November 4, 2021 - Nobary v. Newmarket (Town), 2021 CanLii 112414 (ON LT ) in regard to compatibility of lots. OLT Member Tuckey highlighted the fact “compatibility does not mean being the same as, or even being similar to, but instead “implies nothing more than being capable of existing together in harmony”. In addition, the Member stated “that a strict numerical analysis of lot areas and sizes within the neighbourhood is useful in providing interesting background, but such a comparison serves only to continue or replicate the existing physical character. This limited approach, by its very nature, leads to significantly reducing the ability to creatively infill within an existing neighbourhood and runs counter to an ‘intensification first’ policy direction. Different lot characteristics can serve to reinforce the overall character and interest of a neighbourhood.” Even though the Tribunal is not obligated to follow other Tribunal decisions, the Tribunal finds the approach and principles applied in this decision, as presented by the Applicant was relevant in the present case and therefore, is followed.
City of Sarnia Zoning By-law
22The Appellant argued, as three variances are required for this proposed duplex, the plans do not conform with the City's ZBL.
23Mr. Rempal testified the Subject Property is zoned Urban Residential 2-1 (“UR2-1”) in the City’s Comprehensive ZBL, which permits single detached dwellings and duplexes. Mr. Rempal explained the purpose of the required frontage and lot size provisions are to ensure that adequate space is available for both dwelling units and to ensure a lower density style of development is present.
24Mr. Rempal advised the location of the proposed duplex on the corner of London Road and Mitton Street is an exception where a higher density of development has generally been considered acceptable. Several apartment buildings, townhomes, and duplexes exist nearby along London Road and Mitton Street with dwelling densities that are considerably higher than the density of the proposed duplex.
25Mr. Rempal stated the proposed frontage of 14.528 m narrowly misses the minimum frontage of 15 m due to the rounded edge of the intersection. The property’s width exceeds 15 m everywhere except along the Mitton Street frontage.
26In regard to Parking spaces, Mr. Rempal testified the proposed reduced minimum parking requirement would still allow for one (1) space per unit and would also provide a third parking space in tandem, although it would not count as a parking space as per the ZBL. Given the property’s location along major bus routes on London Road, and close proximity to downtown, the reduction to a minimum of two (2) spaces would be appropriate in his opinion. It is noted on cross examination Mr. Rempal advised he lives within a five (5) minute walk of the Subject Property.
Desirable for the appropriate development and use of the land
27The Appellant raised the issue of characteristics of the neighborhood as referenced in the OP. The Appellant contends under the conformity of the OP, this proposal would have an impact on the character of the historic London Road properties and landscape. In support of his position, he referenced the City of Sarnia Heritage Register (Exhibit No. 4) which is a comprehensive register of cultural heritage properties which recognizes properties of cultural heritage value or interest in the community.
28As noted previously, Mr. Rempal advised there are no nearby properties that are on the Ontario Heritage Act Register. According to the Provinces’ online database, the nearest property on the Ontario Heritage Act Register is 223 London Road and is approximately 200 m to the west of the Subject Property.
29Mr. Rempal testified the proposed reduction in minimum lot size, minimum lot frontage, and minimum parking requirements is appropriate given the lots location on a major arterial road where higher density development is commonplace. The decision to sever the Subject Property is to allow for a single detached dwelling and a duplex which is a compromise that will allow for greater residential density without having significant impact on the character of the neighbourhood. He stated the proposed development is similar in lot size and density to many other lots in the immediate vicinity.In Mr. Rempal’s opinion, the proposed variance’s as they will permit the proposed development meet the general intent and purpose of the City’s Zoning By-law.
Minor in Nature
30The Appellant contends that the reduction in required parking spaces is not minor, especially if there is tandem parking, as was recommended. The property is at a busy intersection on one of the busiest roads in Sarnia. According to the Appellant the neighbour’s concerns are with the safety of vehicles entering and leaving the property so close to the intersection. It was requested that a traffic study be completed to ease the safety concern.
31In Mr. Rempal’s opinion, the reduction in required parking spaces is minor, as one space will be provided per unit; there is opportunity for a third space in tandem; and the property is close to major bus routes on London Road. In relation to traffic safety, Mr. Rempal testified that the City Engineering Dept reviewed the application and raised no objections or concerns. The County of Lambton’s only comment was to not have the driveway come off of London Road and a potential road widening of London Road.
32The Appellant also contends when considering the dominant area of London Road, that a 14% reduction in minimum lot size is not minor in nature.
33Mr. Rempal advised the proposed 14% reduction in minimum lot size is minor considering the much higher density of nearby apartment buildings and townhouses. The reduced minimum frontage of 3.2% along Mitton Street North is due to the rounding out of the intersection and would not have significant impacts on the property.
Appellants Other Concerns
34The Appellant advised there was a petition that was signed by 13 indivduals including himself that opposed the application which was presented to the CoA. The Tribunal notes there were no participants or written submissions entered as evidence to this hearing.
35As noted above, the Appellant did not provide a witness and relied on cross-examination evidence including their closing submissions.
36The Appellant continued to raise concerns that did not deal with land-use planning matters. Concerns with the CoA process and members comments were raised. The Tribunal has only jurisdiction to deal with land-use planning matters properly before it, specifically the minor variances.
37The opinion of Mr. Rempal to the Tribunal was that the application has regard to provincial interest and s. 2 of the Planning Act.
38Mr. Rempal testified that the application for minor variance meets the four tests as outlined in the Planning Act.
the variances meet the intent and purpose of the City OP;
meet the intent and purpose of the City ZBL;
are considered to be desirable for the appropriate development or use of the property; and
are considered to be minor in nature.
FINDINGS AND DISPOSITION
39In determining this matter, the Tribunal accepts and adopts the uncontroverted land use planning evidence and expert opinion provided by Mr. Rempal. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is satisfied that the minor variances meet the prescript of the four-tests.
40The Appellant presented multiple issues that were based solely on apprehension and some out of jurisdiction for the Tribunal. The mere apprehension or concern about a matter without any substantiation is not evidence. The Tribunal found the Appellant presented minimal applicable evidence in this case.
41The Tribunal finds that the variances maintain the general intent and purpose of the City OP and City ZBL with no adverse impacts, and therefore minor.
42Mr. Rempal provided minimal evidence as to the proposal having regard to matters of the provincial interest and being consistent with the PPS, focusing more so on the four tests set out by s. 45(1) of the Planning Act.
43Mr. Rempal did, however, provide his summary opinion that the proposal as permitted with the variances, and as provided to this Tribunal, has regard for matters of provincial interest and that the proposal, when considered in its entirety, is consistent with relevant policies of the PPS.
44The Tribunal finds that the requested variances are desirable and have regard for matters of provincial interest under the Planning Act and are consistent with the PPS. The proposed development will co-exist harmoniously in the neighborhood by creative infilling and intensification.
ORDER
45THE TRIBUNAL ORDERS that the appeal is dismissed, and the variances to Zoning By-law No. 85 of 2002 are authorized.
“Eric S. Crowe”
ERIC S. CROWE
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.```