Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 22, 2022

CASE NO(S).: OLT-22-002209

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

Applicants and Appellants: Aziz Lazar

Subject: Consent

Property Address/Description: 47 Alderson Dr.

Municipality: City of Hamilton

Municipal File No.: HM/B-21:105

OLT Lead Case No.: OLT-22-002209

OLT Case No.: OLT-22-002209

OLT Case Name: Lazar v. Hamilton (City)

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

Applicants and Appellants: Aziz Lazar

Subject: Minor Variance

Property Address/Description: 47 Alderson Dr.

Variance from By-law: 6593

Municipality: City of Hamilton

Municipal File No.: HM/A-21:406

OLT Lead Case No.: OLT-22-002209

OLT Case No.: OLT-22-002210

Heard: June 13, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Aziz Lazar	Alex Lusty*
City of Hamilton	Not in attendance

MEMORANDUM OF ORAL DECISION DELIVERED BY M. ARPINO ON JUNE 13, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant owns the property at 47 Alderson Drive (“Site”). He wishes to construct two (2) new detached residential dwellings at the Site. The Site is located in the City of Hamilton (“City”).

2The Applicant applied for consent to sever the Site into two (2) parcels (“Consent”).

3The Applicant also applied for three (3) minor variances (“Variances”).to City By-law No. 6593 (“By-law”).

4Planning Staff for the City recommended approval of the Applications. The Committee of Adjustment (“COA”) for the City denied both Applications.

5The Applicant appealed the COA decisions to the Tribunal (the “Appeals”) pursuant to s. 53(19) of the Planning Act (“Act”) and s. 45 (12) of the Act. The Tribunal convened a hearing of the merits of the Appeals.

6The City informed the Tribunal that it would not attend the hearing.

7The Applicant brought forward one witness, Leo Palozzi. Mr. Palozzi was qualified by the Tribunal to provide opinion evidence regarding land-use planning.

8The Tribunal had available the Applicant’s Book of Document Exhibit 1 and the Witness Statement of Leo Palozzi, Exhibit 2.

SITE DETAILS, PROPOSED CONSENT AND VARIANCES

9The Site is located on Alderson Drive, It is 30.16 metres (“m”) wide and 52 m deep. It is zoned Suburban Agriculture and Residential, which permits single detached dwellings. It is designated as “Neighbourhoods” in the Urban Hamilton Official Plan (“UHOP”).

10Both the severed and retained parcels are proposed to have a frontage of ±15.08 m, a depth of ±52.0 m and lot areas of ±784 square metres (“m2”). The existing dwelling on the Site is to be demolished.

11The Variances consist of the following:

1. A minimum side yard width of 1.25 metres shall be provided for the both the severed and retained lots instead of the minimum required side yard width of 3.0 metres
2. A minimum lot width of 15.08 metres shall be provided for each parcel instead of the minimum required lot width of 20.0 metres.
3. A minimum lot area of 784.00 square metres shall be provided for each parcel instead of the minimum required lot area of 1100.0 square metres.

12The City informed the Applicant that:

The subject property has been determined to be an area of archaeological potential. It is reasonable to expect that archaeological resources may be encountered during any demolition, grading, construction activities, landscaping, staging, stockpiling or other soil disturbances. If archeological resources are encountered, the proponent may be required to conduct an archaeological assessment prior to further impact in order to address these concerns and mitigate, through preservation or resource removal and documentation, adverse impacts to any significant archaeological resources found. Mitigation, by an Ontario-licensed archaeologist, may include the monitoring of any mechanical excavation arising from this project. If archaeological resources are identified on-site, further Stage 3 Site-specific Assessment and Stage 4 Mitigation of Development Impacts may be required as determined by the Ontario Ministry of Heritage, Sport, Tourism and Culture Industries (MHSTCI). All archaeological reports shall be submitted to the City of Hamilton for approval concurrent with their submission to the MHSTCI. Should deeply buried archaeological materials be found on the property during any of the above development activities the MHSTCI should be notified immediately (416-212- 8886). In the event that human remains are encountered during construction, the proponent should immediately contact both MHSTCI and the Registrar or Deputy Registrar of the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-212-7499).

ISSUES

Consent Appeal – [s. 53(19)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

13In the determination of the Appeal of the COA decision regarding the Consent and deciding whether the proposed provisional consent should be granted, with such conditions that may be required, the Tribunal must consider and decide the following issues:

a. the Tribunal must address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and can proceed by way of application for consent. Given the circumstances of the Consent in this case, a Plan of Subdivision is not necessary.

b. the Tribunal must then, under s. 53(12), have regard for the criteria set out in s.51(24) of the Act which stipulates: that the Consent has regard to the effect that the Consent will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed consent is premature or in the public interest; and whether the Consent conforms to the UHOP; the suitability of the site for the purposes for which it is to be subdivided; and the dimensions and shapes of the proposed parcels; and the adequacy of utilities and municipal services.

c. as required by s. 3(5) of the Act the Tribunal must, in its decision, be satisfied that the approval of the proposed provisional Consent is consistent with the Provincial Policy Statement 2020, (“PPS”) and conforms to such Provincial Plans that may be applicable, which in this case is the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended (“Growth Plan”).

d. the Tribunal must also have regard to the decision of the COA relating to the Consent and the information and material that was before the COA in making the decision.

e. the Tribunal may, under s. 53(12) also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the Consent, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and

f. The Tribunal will decide whether granting the Consent, with any required conditions, represents good planning in the public interest.

Variance Appeal – [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

14With respect to the application for the Variances, the issue before the Tribunal is whether the Variances meet the four tests set out in s. 45(1) of the Act and should be authorized by the Tribunal.

15The Tribunal must accordingly be satisfied, in this appeal, that the Variances that would permit the single detached dwellings on the parcels created by the Consent if granted: (a) maintain the general intent and purpose of the UHOP; (b) maintain the general intent and purpose of the By-law; (c) are minor, and (d) are desirable for the appropriate use and development of the Site.

16Additionally, the Variances must also be consistent with the PPS, and conform to the Growth Plan under s. 3(5) of the Act. The Tribunal must also have regard to matters of Provincial interest. The Tribunal must also consider the decision made by the COA, as well as all information and material that the COA considered in making its decision.

ANALYSIS AND FINDINGS

17The expert planning evidence presented by the Mr. Palozzi before the Tribunal is uncontroverted.

18For the reasons that follow, and upon the various findings set out herein, the Tribunal determines that the Appeal under s. 53(19) should be allowed and provisional Consent should be given for the proposed Consent, and further, that the Variances should be authorized and that appeal pursuant to s. 45(12) allowed.

Provincial Policy Statement and Growth Plan

19Based upon the whole of the evidence, including the uncontroverted planning opinions provided by Mr. Palozzi and City Staff, the Tribunal finds that in all respects both the Consent and Variances are consistent with the policies within the PPS and conform with the Growth Plan.

The Consent Application – s. 51(24) Criteria

20Mr. Palozzi concluded that that the Consent and Variances have appropriate regard to the listed criteria set out in s. 51(24) of the Act.

21Regarding the suitability of the land for the proposed use and dimensions and shape of the severed and retained parcel, the Applicant’s uncontroverted expert testified that the existing neighbourhood character and varied lot sizes are supportive of the Consent and Variances. The Tribunal would agree, having examined various photos and plans presented by the Applicant, which demonstrated that the neighbourhood has no consistent lot pattern with a variety of housing types and lot sizes. The Consent will, as discussed further below, conform to the UHOP and in that respect has regard for s. 51(24)(c).

22Upon the whole of the evidence and upon additional findings below regarding conformity with the UHOP and the uncontroverted evidence presented, the Tribunal finds that the Consent satisfies, the criteria set out in s. 51(24) of the Act.

Urban Hamilton Official Plan “(UHOP)

23The Site is located within the General Urban Area, an area where the UHOP supports intensification where it will complement the existing pattern, scale and planned function of an area. The Tribunal reviewed and accepted the unchallenged evidence of Mr. Palozzi, Mr. Palozzi testified that the Applications conform with the UHOP policies regarding development in the General Urban Area.

24With regards to development in a mature neighbourhood in a General Urban Area, the UHOP supports intensification where it will complement the existing pattern, scale and planned function of an area, which the Application does as demonstrated by Mr. Palozzi

25Although there are no participants in this hearing, the municipal record includes letters to the COA from area property owners who express concerns regarding persons outside of the City purchasing properties and applying for consent to sever or variances from the By-law. The Tribunal determined that these are not land use planning issues.

26There was also a concern regarding the lack of sidewalks. The Tribunal noted that one of e conditions suggested by City staff was that the Applicant make a payment for future urbanization, including the installation of sidewalks. Mr. Palozzi opined that there are sufficient municipal services and accessible sidewalks to accommodate two (2) additional dwellings.

27The Tribunal noted that a letter was sent to the municipality regarding grading of the parcels and potential flooding. City staff recommended that the Consent include a condition regarding grading of the new parcels. Mr. Palozzi opined that management of surface water run-off and grading is commonly and, in his opinion, appropriately addressed in conditions of severance. as recommended by City staff.

28At the Hearing itself the Tribunal heard only the uncontroverted and the expert witness of the Applicant who opined that the issues were unfounded.

Summary – Consent

29Having considered the Provincial policy concerns, matters of Provincial interest set out in s. 2 of the Act and the criteria set out in s. 51(24), the Tribunal finds that the proposed severance has due regard for matters of Provincial interest, is consistent with the PPS, conforms to, or is not in conflict with the Growth Plan and the UHOP and represents good planning in the public interest. The Tribunal will allow the appeal and give provisional Consent subject to the City’s conditions.

Variance Application – the Four Tests [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

General Intent and Purpose of the UHOP

30For reasons set out above, the Tribunal has considered the evidence and based on the uncontroverted opinion evidence submitted by the Applicant, the Tribunal is satisfied that the requested Consent, with the Variances, meet the general intent and purpose of the UHOP.

General Intent and Purpose of the By-law

31Mr. Palozzi provided uncontroverted opinion that the Variances meet the general intent and purpose of the By-law. This opinion is supported by City staff.

32Based on the opinion evidence provided with respect to varied lot pattern within the neighbourhood, despite the reduced side-yard setback, lot frontage and lot area the Variances will nevertheless maintain the general intent and purpose of the By-law.

33The Tribunal accordingly finds that this test for the Variances has been satisfied.

Variance is Desirable for the Appropriate Development of Land

34Mr. Palozzi opined that the Variances are desirable for the appropriate development of the Site. The benefits of allowing for the infill lot and construction of a new detached dwelling on the Site aid in Provincial goals regarding intensification and take advantage of existing municipal services and infrastructure.

Variances are Minor in Nature

35Mr. Palozzi testified that both parcels will front on to Anderson Drive. He opined that the Consent if granted, will create two (2) relatively large parcels. He testified that having regard to the orientation the parcels and location of the Site and the size of the parcels, the Variances are minor in nature.

36The Tribunal accordingly finds that the Variances are Minor.

37The Tribunal finds that this test for Variances has been satisfied.

Summary-Variances

38For the reasons indicated in the analysis above, and upon various findings made in this Decision, the Tribunal will allow the Application and authorize the Variances

39The Tribunal finds that both the Consent and Variances are consistent with the PPS, conform to the Growth Plan and have regard to Provincial interests set out in s. 2 of the Act.

ORDER

40With respect to the Application for Consent, and the appeal pursuant to s. 53(19) of the Act, the Tribunal hereby orders that that the appeal is allowed, and provisional consent is to be given, subject to the Conditions set out in Schedule 1 to this Order.

41With respect to the Minor Variance Application, the Tribunal orders that the appeal pursuant to s. 45(12) of the Act is allowed and the following Variances to By-law No. 6593 are authorized:

1. A minimum side yard width of 1.25 metres shall be provided for the both the severed and retained parcels instead of the minimum required side yard width of 3.0 metres
2. A minimum lot width of 15.08 metres shall be provided for each new lot instead of the minimum required lot width of 20.0 metres.
3. A minimum lot area of 784.00 square metres shall be provided for each lot instead of the minimum required lot area of 1100.0 square metres.

“M. Arpino”

M. ARPINO 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.

SCHEDULE 1

Consolidated Conditions of Approval for 47 Alderson Drive June 13, 2022

1. The owner shall submit a deposited Ontario Land Surveyor’s Reference Plan to the Committee of Adjustment Office, unless exempted by the Land Registrar. The reference plan must be submitted in pdf and also submitted in CAD format, drawn at true scale and location and tied to the City corporate coordinate system. (Committee of Adjustment Section)

2. The owner shall pay any outstanding realty taxes and/or all other charges owing to the City Treasurer. (Committee of Adjustment Section)

3. The owner submits to the Committee of Adjustment office an administration fee, payable to the City of Hamilton, to cover the costs of setting up a new tax account for each newly created lot. (Committee of Adjustment Section)

4. The Owner must enter into with the City of Hamilton and register on title, a Consent Agreement, having an administrative fee of $4,310.00 (2021 fee) to address issues including but not limited to: lot grading and drainage to a suitable outlet on the conveyed and retained parcels (detailed grading plan required), erosion and sediment control measures (to be included on the grading plan); cash payment requirements for items such as any outstanding servicing cost for the existing municipal services adjacent to the property, street trees (City policy requires one (1) street tree/lot, inspection of grading, stormwater management infrastructure and securities for items that may include: lot grading ($10,000.00 grading security), water and sewer services inspections, driveway approaches, relocation of any existing infrastructure (such as hydrants) and any damage during construction (unknown costs at this time), to the satisfaction of the City’s Manager of Development Approvals. Cash payments mentioned above are subject to change.

5. That the owner provide a cash payment to the City for the future urbanization of the street for sidewalks based on the frontage of the severed and retained lands on Alderson Drive and the “New Roads Servicing Rate” at the time of payment to the satisfaction of the Manager of Engineering Approvals Section.

6. The owner shall submit survey evidence that the lands to conveyed/retained, including the location of any existing structure(s) and permitted yard encroachments conform to the requirements of the Zoning By-Law or alternatively apply for and receive final approval of any variances from the requirements of the Zoning By-Law as determined necessary by the Planning and Economic Development Department (Building Division – Zoning Section).

7. That the Owner agrees to physically affix the municipal numbers or full addresses to either the buildings or on signs in accordance with the City’s Sign By-law, in a manner that is clearly visible from the road.

8. Should deeply buried archaeological materials be found on the property during any of the above development activities the MHSTCI should be notified immediately (416-212-8886). In the event that human remains are encountered during construction, the proponent should immediately contact both MHSTCI and the Registrar or Deputy Registrar of the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-212-7499).