Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 14, 2022
CASE NO(S).:
OLT-22-002517
PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Faten Najem
Subject:
Consent
Description:
to sever the lot and reduce the severed lot width and size in order to construct one new residential detached dwelling
Reference Number:
B-043/21
Property Address:
2140 Cabana Road W
Municipality/UT:
Windsor/Essex
OLT Case No:
OLT-22-002517
OLT Lead Case No:
OLT-22-002517
OLT Case Name:
Najem v. Windsor (City)
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Minor Variance
Reference Number:
A071-21
Property Address:
2140 Cabana Road W
Municipality/UT:
Windsor/Essex
OLT Case No:
OLT-22-002518
OLT Lead Case No:
OLT-22-002517
Heard:
June 14, 2022 by video hearing
APPEARANCES:
Parties
Counsel
City of Windsor (“City”)
Alexandra Hartley
Faten Najem (“Applicant” or “Appellant”)
William Good
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
1. BACKGROUND
1This is an appeal of the decisions of City’s Committee of Adjustment (“Committee”) denying a consent application and refusing to authorize a minor variance application for the property municipally known as 2140 Cabana Road West (“Subject Property”).
2The Subject Property located in the City of Windsor is designated as Residential in the City’s Official Plan (“OP”). It is zoned Residential (RD1.4) in the Zoning By-law No. 8600 (“ZB”)
3The Applicant applied for a consent to sever the Subject Property into two parcels depicted in Appendix A as the Retained Parcel (“Retained Parcel”) and the Severed Parcel (“Severed Parcel”). The Retained Parcel will comply in all respects to the ZB and the residence that is currently on the property will remain on the Retained Parcel. The Severed Parcel does not comply with the minimum lot width and lot area requirements of the ZB. The Severed Parcel contains an accessory building which will be demolished to make way for a new single-family dwelling.
4The Applicant also filed a minor variance application for authorization to reduce the minimum lot width requirements of the ZB from 18 m to 13.0 m and the minimum lot area requirements of the ZB from 540.0m2 to 520.1 m2 for the Severed Parcel to permit the construction of a new single-family dwelling.
5After reviewing both applications, the City’s planning department prepared reports recommending against the approval of the consent application and authorization of the Minor Variance application (“Municipality Planning Report”) and the Committee denied the applications. The Applicant appealed the Committee decisions. Prior to the hearing, the City and the Applicant entered into a settlement agreement and both parties now support the appeals.
2. HEARING AND WITNESSES
6At the hearing, no issues with notice were identified and no status requests were made. Rita Jabbour was called by the Applicant (“Applicant’s Planner”) and properly qualified as expert witness in the field of land use planning. The Tribunal found her evidence to be credible and she answered all questions posed by the Tribunal and in examination clearly.
3. APPEAL AND APPLICABLE TESTS
7This appeal is a hearing de novo of the consent and minor variance applications. The Tribunal is required to hear the evidence presented and make its decision using the criteria required by the Planning Act (“Act”). The Tribunal must have regard to the decision of the Committee but is not bound by it.
8Dealing first with the minor variance application, the Tribunal is required to review it based on the requirements of s. 45(1) of the Act. To be authorized by the Tribunal, the variance must maintain the intent and purpose of both the OP and the ZB, be minor in nature and desirable for the development of the property.
9The Applicant’s Planner’s evidence was that the minor variance application for a reduction in the minimum lot area by 20 square metres and a reduction of the minimum lot width by 5 metres for the Severed Parcel was supported for the following reasons.
10The variances maintain the intent and purpose of the OP. It creates a new infill residential lot for a single-family dwelling as permitted by the residential designation for the Subject Property. City’s planning report which persuaded the Committee to deny the minor variance application referenced section 8.7.2.3 of the OP that sets out guidance for infill development:
8.7.2.3
Council will ensure that proposed development within an established neighbourhood is designed to function as an integral and
complementary part of that area’s existing development pattern by having regard for:
(h) the pattern, scale and character of existing development.
11The Applicant’s Planner was of the view that this provision was misconstrued in the City’s Planning report to mean that the lot size and of the Severed Parcel needs to be the same or very similar to those in the area. She was of the view that this an inappropriate interpretation of this provision. The complementary standard in 8.7.2.3 only relates to the proposed building or proposed development. In other words, the proposed building to be placed on the infill lot must be complementary to the existing development in the surrounding area.
12The lot size is only relevant if it results in a residential building which is out of character with the surrounding area. In the planner’s view, the fact that any building constructed can meet all other zoning standards is evidence that the built form will meet the requirements of the OP for being complementary. It was her opinion that the proposed building on the proposed Severed Parcel will in fact be complementary to the area.
13The planning evidence was that the variances maintain the intent and purpose of the ZB since the residential zoning by-law allows for a single-family dwelling as proposed. The dimensions of the Severed Parcel will accommodate a single-family dwelling that will comply with all other zoning standards other than lot area and lot width.
14The variances are minor in nature and desirable since there would be no anticipated adverse impacts on neighbouring properties and will result in additional housing in a market where it is required. The proposed Severed Parcel will provide adequate space for a dwelling that complies with all required setbacks and appropriate on-site parking. Any drainage issues can be addressed with an appropriate drainage plan approved by the City through the building permit process.
15The Tribunal accepts the Applicant Planner’s evidence and finds that the minor variance application should be allowed since it complies with s. 45(1) of the Act.
4. Consent application- [Section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec51subsec24_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
16The Tribunal is required to review the consent application based on the requirements of s. 51 (24) of the Act. There are a range of factors under this section which are relevant to the analysis of the Tribunal. The planning evidence identified that:
- The proposed development is consistent with the PPS since it promotes the addition of residential uses in an area supported by existing municipal infrastructure.
- The proposed severance is not premature since the lot to be created will be serviced by public services that are currently available including water, sewage roads and hydro.
- The proposed lot conforms to the OP for the reasons explained with respect to the minor variance application.
- The Severed Parcel is suitable for housing due to its residential zoning
- The lot will be of a rectangular shape and meet all other zoning requirements.
- There are no natural heritage or archeological features requiring protection.
- There are sufficient municipal services, utilities and schools to accommodate the requirements of the residents of a new single-family dwelling.
17Numerous conditions were proposed in connection with the consent application outlined in Appendix B. The planning evidence confirmed that they are all reasonable and typical when creating a new lot by severance.
18In summary, the consent application meets the requirements of section 51(24) and will be allowed by the Tribunal subject to the conditions identified in Appendix B.
THE TRIBUNAL ORDERS THAT the appeals are allowed and:
(1) The Appeal under s. 45(12) of the Planning Act is allowed and the variances to Zoning By-law 8600 are authorized; and
(2) The Appeal under s. 53(19) of the Planning Act is allowed and provisional consent for the severance shown in the sketch in Appendix A is to be given, subject to the conditions set out in Appendix B;
“A. Cornacchia”
A. CORNACCHIA
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.
Appendix B
CONDITIONS
The Owner shall obtain a demolition permit from the Chief Building Official and demolish the existing garage located on the lands to be severed.
Prior to the issuance of a construction permit the Owner shall submit a site servicing plan showing connections for the municipal servicing of the retained and severed lands to the satisfaction of the Chief Building Official and the City Engineer.
Prior to the issuance of a construction permit the Owner shall obtain permits to carry out the driveway and right of way work described in Appendix “B” of the Planning Report for Consent made available to the City of Windsor Committee of Adjustment at its meeting date of November 18, 2021.
This decision will expire two years from the date the Ontario Land Tribunal issues its order.