Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 25, 2022
CASE NO(S).: OLT-22-002435
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Brent Bailey
Subject: Consent - refused by Approval Authority
Description: To sever the lot in order to create one new lot and construct one new residential dwelling
Reference Number: B01-22
Property Address: 4 Fletcher Street
Municipality/UT: New Tecumseth/Simcoe
OLT Case No.: OLT-22-002435
OLT Lead Case No.: OLT-22-002435
OLT Case Name: Bailey v. New Tecumseth (Town)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject: Minor Variance
Reference Number: A01-22
Property Address: 4 Fletcher Street
Municipality/UT: New Tecumseth/Simcoe
OLT Case No.: OLT-22-002436
OLT Lead Case No.: OLT-22-002435
Heard: June 14, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Brent Bailey | David S. White |
| Town of New Tecumseth | James J. Feehely |
DECISION DELIVERED BY BITA M. RAJAEE AND S. MANN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was an appeal by Brent Bailey (the “Appellant”) concerning the decision of the Committee of Adjustments (the “CoA”), on January 27, 2022, to refuse the consent and minor variance applications for the property known municipally as 4 Fletcher Street (the “Subject Property”) in the Town of New Tecumseth (the “Town”).
2Although planning staff recommended approval of the variances at issue, the CoA refused the application for the following reasons: the proposed retained property is not suitable to continue to be used as a residential property, as 1.5 metres (“m”) is not sufficient greenspace for a backyard.
3For the reasons that follow, the Tribunal allows the Appeal.
PROPOSAL
4The consent and minor variances applications (the “Proposal”) sought would facilitate to subdivide the Subject Property into two separate parcels of land. This would permit the future development of one new single-detached dwelling on the severed lot, while retaining the existing dwelling on the retained lot. The site characteristics for the proposed severed and retained lots are:
a. The proposed retained lot (Lot 1) will have a total area of 412 square metres (“m2”) with 18.3 m of frontage along Nelson Street East. A single detached dwelling currently exists on Lot 1.
b. The proposed severed lot (Lot 2) will have a total area of 323 m2 with 17.7 m of frontage along Fletcher Street. Lot 2 is currently vacant.
5The minor variance application seeks relief from section 3.1 (Urban Residential Zones) of Zoning By-law No. 2021-128 as follows:
a. With respect to Lot 1, to expand the front yard build-within zone from 7.5 m to 8.75 m, to expand the exterior side yard build-within zone from 4.5 m to 7.07 m, and to decrease the rear yard setback from 7.5 m to 1.5 m.
b. With respect to Lot 2, to reduce the rear yard setback from 7.5 m to 6.5 m.
6In the application submitted to the CoA, the variances requested were different as pertaining to the front yard and exterior side yard of Lot 1. Namely, in the application to the CoA, the Appellant requested that the front yard build-within zone be expanded from 7.5 m to 7.9 m, and for the exterior side yard build-within zone to be expanded from 4.5 to 7.6 m. However, the two planning experts who testified at the Hearing explained that the change in the numbers provided to the Tribunal resulted from a topographical survey obtained recently, which was provided to the Tribunal after the Hearing. The topographical survey provided much more precise measurements, and allowed the Appellant to seek a more accurate minor variance. Both experts also confirmed that this change in numbers did not result in a substantial change to the Proposal, and rather, it was simply a more exact and accurate representation of it. In addition, both counsel for the Appellant and the Town confirmed that their respective clients had no concerns regarding the changes to the Proposal.
SUBJECT PROPERTY
7The Subject Property is located within the “Primary Settlement Area” of Alliston. It contains a total area of 735.7 m2 (7,919 square feet) with approximately 18.3 m (60 feet) of frontage along Nelson Street East. There is currently a single detached dwelling of approximately 101 m2 (1,093 square feet) and an accessory structure located on the Subject Property.
8It is located on the west side of Fletcher Street, and just south of Nelson Street East. It is located in an established area, surrounded by existing low density single detached dwellings located on a variety of lot sizes. The surrounding land uses include urban residential to the west and south, a cemetery to the east, and Banting Memorial High School to the north.
9The Subject Property is currently designated “Urban Residential” in the Town’s Official Plan (the “Town’s OP”) and is zoned “Low-Rise Residential (LR)” as per the Town’s Zoning By-law No. 2021-128 (the “Town’s ZBL”). Of note, although this ZBL has been approved by Town Council, it is subject to an appeal. However, no aspect of the current appeal relates to the zoning of the Subject Property.
LEGISLATIVE FRAMEWORK
10Concerning a consent application, the Planning Act (the “Act”) gives authority to grant consent to sever land under s. 53 (1) of the Act, when a plan of subdivision is not required for the orderly development of the lands. The Act also requires when making a decision on planning matters, that approval authorities have regard for matters of provincial interest in s. 2 and matters under s. 51(24) of the Act.
11An appeal pursuant to s. 45 of the Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance:
(a) maintains the general intent and purpose of the OP;
(b) maintains the general intent and purpose of the ZBL;
(c) is desirable for the appropriate development or use of the land, building or structure; and
(d) is minor in nature.
12The proposed variances must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act and it must have regard to the decision of the CoA and the information considered by it, as required under s. 2.1(1) of the Act, though it is not bound by it.
HEARING
13As evidence in the Hearing, the Tribunal received a Joint Document Book, which was marked Exhibit 1.
14The Tribunal heard from Bonnie Tang, who was qualified by the Tribunal, without objection, to provide expert testimony in the area of Land Use Planning on behalf of the Appellant. The Tribunal also heard from Courtney Fish, who was qualified by the Tribunal, without objection, to provide expert testimony in the area of Land Use Planning on behalf of the Town. The Curriculum Vitae and Acknowledgment of Expert’s Duty for both experts are found in Exhibit 1.
15The Parties advised the Tribunal that the two experts were in agreement with each other. The Town indicated that it had attended the Hearing to voice its support for the appeal.
16Both experts provided a detailed contextual and land use planning rationale to support the Proposal and reviewed the PPS, the Growth Plan, the County of Simcoe Official Plan 2008 (the “County’s OP”), the Town’s OP, and the Town’s ZBL.
Provincial Policy Statement 2020
17Ms. Tang testified that the Subject Property is located within the community of Alliston and is considered part of a “Settlement Area” as defined by the PPS. Specifically, the following sections of the PPS support the Proposal: s. 1.1.1(b), s. 1.1.3.3., and s. 1.4.3. The Proposal addresses the policy direction of the PPS by contributing to the mix of residential types within the existing neighbourhood. The proposed infill development promotes intensification and redevelopment in the neighbourhood.
18Ms. Fish agreed with Ms. Tang’s testimony, and added that the PPS indicated that settlement areas shall be the focus of growth and development and that intensification in settlement areas be promoted where appropriate (s. 1.1.3.1, s. 1.1.3.3, s. 1.1.3.4, and s. 1.1.3.5). The Proposal allows for such an intensification.
Growth Plan for the Greater Golden Horseshoe 2020
19Ms. Tang explained that the Proposal also conforms with the Growth Plan, and specifically with s. 2.2.1, which outlines policy directions to manage growth in the Greater Golden Horseshoe, and s. 6, which outlines policies for the Simcoe sub-area, including significant growth to be directed to primary settlement areas. Under s. 2.2.1.4 of the Growth Plan, municipalities are encouraged to develop policies which encourage and promote the achievement of complete communities that “feature a diverse mix of land uses” (s. 2.2.1.4(a)) and “provide a diverse range and mix of housing options” (s. 2.2.1.4(c)). The Proposal conforms to the policy direction of the Growth Plan by providing an infill development opportunity within the community of Alliston, which has been identified as a primary settlement area.
20Ms. Fish agreed with Ms. Tang. She added that the Subject Property is located within the Delineated Build Up Area within the Primary Settlement Area of Alliston, and the Proposal was appropriate in the build-up area.
The County of Simcoe Official Plan 2008
21Ms. Tang stated that the Proposal conforms with the County’s OP. The Subject Property is designated “Settlement” in the County’s OP (Schedule 5.1). The Proposal would provide additional housing stock to the Town, which conforms with the following sections of the County’s OP: s. 3.5.1, s. 3.5.4, and s. 3.5.30. Specifically, the Proposal constitutes an infilling which minimizes land consumption with an opportunity to connect to existing municipal services.
22Ms. Fish agreed with this.
The Town of New Tecumseth’s Official Plan
23Ms. Tang testified that the Proposal conforms with the Town’s OP. The Subject Property is designated as Urban Residential on Schedule “B1” to the Town’s OP. Section 5.2 of the Town’s OP outlines policies for the Urban Residential designation, and the following sections applied specifically to the Proposal: s. 5.2.1(b), s. 5.2.1(c)(vii), and s. 5.2.2.(f). An infill development opportunity within this designation creates opportunity to increase the supply of housing within the Town. The Subject Property is located in an appropriate location within the Town, where municipal services are already available and would therefore maximize the use of existing infrastructure.
24Additionally, s. 10.12.2. of the Town’s OP outlines policies regarding New Lots by Consent. The Proposal conforms with these policies. Specifically:
a. The Subject Property has frontage onto Fletcher Street, which is a public road maintained year-round (s. 10.12.2(a)(i)).
b. The Subject Property does not have direct access to a Provincial Highway or County Road (s. 10.12.2.(a)(ii)).
c. The Subject Property will not cause a traffic hazard (s. 10.12.2(a)(iii)). The proposed new driveway to access Lot 2 is further removed from the intersection of Fletcher Street and Nelson Street East, and therefore, is not expected to cause any traffic hazards. Municipal public works staff has confirmed that a road widening or site triangle is not required for this subject application.
d. The Subject Property is zoned Low-Rise Residential Zone (LR) and the proposed lots meet the required size and frontage as identified in the ZBL (s. 10.12.2(a)(iv)).
e. A minor variance application has been submitted along with the Consent application and the variance is proposed to be included as a condition of the Consent application (s. 10.12.2(a)(v)).
f. The Subject Property is located within a fully serviced community, with an appropriate water supply and means of sewage disposal, and new service connections will be required as a condition of severance approval (s. 10.12.2(a)(vi)).
g. An engineered lot grading plan for the proposed lot will be prepared and submitted with the Building Permit application, following approval of the Consent application, to show that the drainage patterns in the area will not suffer a negative impact (s. 10.12.2(a)(vii)).
h. The creation of a new building lot to the south of the existing residence will not negatively impact the continued use of the residential use on the retained land (s. 10.12.2(a)(viii)).
i. The Town’s OP does not include EP1 or EP2 designations on the Subject Property, and as such, the Proposal will not have a negative impact on the significant features and functions of any key natural heritage features located within an EP1 and EP2 designations in the area (s. 10.12.2(a)(ix)).
j. The Subject Property and adjacent lands are all serviced by municipal water and sanitary services, and there is no reliance on groundwater, and therefore, the Proposal will not have a negative impact on groundwater quality (s. 10.12.2(a)(x)).
k. The Proposal conforms to s. 51(24) of the Act, as amended (s. 10.12.2(a)(xi)). This is discussed in detailed below.
l. The Subject Property appears to be outside of the Nottawasaga Valley Conservation Authority regulation area and can be developed without environmental constraints (s. 10.12.2(a)(xii)).
25Ms. Fish agreed with Ms. Tang regarding her findings on the Proposal’s conformity with the Town’s OP.
The Town of New Tecumseth’s Zoning By-law
26Ms. Tang explained that the Proposal is consistent with the Town’s ZBL No. 2021-128. The Subject Property is zoned Low-Rise Residential (LR) on Schedule “A” of the Town’s ZBL. The Proposal is within the scope of the permitted uses within the LR Zone (s. 3.1 of the ZBL). As mentioned, this ZBL is under appeal, but the LR Zone section is not part of the appeal. A few variances to the ZBL are required, which were also addressed by Ms. Tang, and are discussed further below.
27Ms. Fish explained that the Subject Property is currently zoned Urban Residential – Exception (UR2-4) on Schedule A to ZBL No. 2014-126. Through a Comprehensive Zoning By-law Update, the future zoning of the property is proposed to be Low-Rise Residential (LR) on Schedule A of ZBL No. 2021-128, which is currently under appeal for reasons unrelated to the Low-Rise Residential Zone. Though not yet approved, it is expected this zoning will be approved by the Ontario Land Tribunal through a scoping exercise, and as such, this minor variance and consent application are being evaluated under the new ZBL provisions. Both Lot 1 and Lot 2 of this Proposal will conform to the lot area and lot frontage of the LR Zone within ZBL No. 2021-128. The Proposal, Ms. Fish testified, meets the general intent of the Town’s ZBL.
CONSENT REVIEW
28With respect to the consents, Ms. Tang opined that the criteria under s. 51(24) of the Act, and specifically s. 51(24)(a) regard to matters of provincial interest pursuant to s. 2 of the Act, have all been met. The Proposal relates to an already built residential unit and a second one to be built in an already existing area, using already existing infrastructure. The land is suitable to be subdivided in accordance with the Proposal and this would be in the public interest. In sum, she stated that she had reviewed the criteria under s. 51(24) of the Act, and felt that the Proposal satisfied them.
29Ms. Fish testified that she had also had regard to the criteria under s. 51(24) of the Act, and the Proposal does not conflict with the criteria. She added that s. 10.12.1 of the Town’s OP indicated that a plan for subdivision is only required if four or more lots are being created, and since s. 51(24) applied to plans for subdivision, this Proposal did not fall under the prevue of that section.
30Both experts testified that the consent application constituted good planning.
MINOR VARIANCE REVIEW – FOUR TESTS
Provincial Policy Statement
31The PPS has been discussed in detail above. Moreover, both experts opined that the variances have regard to matters of provincial interest in s. 2 of the Act.
32In both experts’ opinion, with which the Tribunal agrees, the applications are consistent with the PPS, which is to encourage intensification through, among other means, infilling on vacant and underutilized parcels.
Do the Minor Variances Maintain the General Intent and Purpose of the Town’s OP?
33As detailed above, Ms. Tang testified that the Subject Property is designated Urban Residential in the Town’s OP. With respect to the minor variances, Ms. Tang explained that the policies in the OP allow for opportunities for new growth such as affordable housing in infill lots. The proposed variances do not impact the overall intent and purpose of the Town’s OP.
34Ms. Fish agreed with Ms. Tang, and added that s. 5.2.2.(c)(i) of the Town’s OP permits low-rise residential uses such as single detached dwellings, and therefore the Proposal was consistent with the Town’s OP.
Do the Minor Variances Maintain the General Intent and Purpose of the Town’s ZBL?
35Ms. Tang explained that the ZBL’s Low-Rise Residential (LR) designation permits the use of a single detached dwelling on the Subject Property. The intent of the zoning requirements of the ZBL are to maintain consistent built form throughout the neighbourhood. The proposed variances require relief from s. 3.1. of the ZBL. The intent of these provisions is to ensure that the structures do not negatively impact adjacent properties by providing a suitable spatial separation. In this case, the variances proposed for Lot 1 generally recognize existing conditions and the location of the existing dwelling unit. Proposed Lot 2’s rear and south lot lines include mature trees and vegetation which would provide a visual barrier to the adjacent developed properties. The proposed reduction in the rear yard setback allows for a reasonably sized building envelope while maintaining suitable rear yard amenity space. Thus, the variances conform with the general intent of this ZBL.
36Ms. Tang added that a lot size analysis outlined multiple lots that are similar to the proposed lot sizes of 412 m2 and 323 m2. A parcel fabric analysis found three parcels within the sample size that were smaller than the proposed lots. Thus, the proposed severance represents a compatible form of development in the context of the larger neighbourhood. Of note, the ZBL requirement for the area is only 270 m2, and the proposed lots surpass that in size. She concluded that the Proposal meets the quality of the neighbourhood and would be a good fit for this area.
37Ms. Fish agreed and explained that, pursuant to s. 3.1 of ZBL No. 2021-128, the proposed severed and retained lots will have a deficient rear yard setback. The purpose of a rear yard setback is to ensure an appropriate distance between two uses and/or properties is provided, as well as ensuring appropriate grading and drainage. In this case, the defined rear yard on the retained lot will function as the side yard, while the interior side yard will function as the rear yard. The variance maintains the general intent of a rear yard setback through providing appropriate separation from adjacent residential uses. The requested variance will not further impact the adjacent landowner. The proposed retained lot will have an exterior side yard and front yard setback, which exceed the build-within zone of ZBL No. 2021-128. She added that the built-form of the existing lot is not changing and the front yard setback of 8.75 m, and exterior side yard setback of 7.07 m is the existing condition. Thus, the Application will meet the general intent and purpose of ZBL No. 2021-128.
Are the Minor Variances Desirable for the Appropriate Development or Use of the Land, Building or Structure?
38Ms. Tang testified that the proposed variances are considered appropriate development of the land. The variances, and especially the reduced rear yard setback of 1.5 m, are not expected to have any adverse impacts on the adjacent properties as there is existing vegetation along the proposed rear lot line. The proposed rear yard contains an appropriate amount of amenity space and could also include a garden shed. Moreover, she indicated that the proposed variances are considered desirable for the development of the lands.
39Ms. Fish agreed with Ms. Tang on this issue.
Are the Minor Variances Minor in Nature?
40Ms. Tang indicated that the variances sought are minor in nature, especially when the existing site conditions are taken into context. In addition, they are compatible with surrounding development in the immediate area.
41Ms. Fish agreed that the proposed variances were minor in nature.
42In sum, both experts stated that the minor variances applied for constituted good planning.
FINDINGS AND DISPOSITION
43The Tribunal accepts the uncontradicted planning evidence and opinions of Mmes. Tang and Fish, who agreed with each other, and finds that the Proposal aligns with good land use planning, satisfies all legislative tests as detailed above and warrants approval. The Proposal is consistent with policy directives of the PPS and conforms to the policy intent of the Growth Plan, the County’s OP, the Town’s OP, and the Town’s ZBL. The Proposal has appropriate regard for matters of provincial interest and is in the public interest.
44The Tribunal agrees with the experts that the proposed variances are minor in nature, desirable for the appropriate development of the land, and maintain the general intent and purpose of the Town’s OP and the Town’s ZBL. The Tribunal is further satisfied that the variances have appropriate regard for matters of provincial interest; are consistent with the PPS; and overall, represent good planning in the public interest.
45In addition, the Tribunal finds that the proposed Consent satisfies all of the criteria of s. 51(24) of the Act, and otherwise represents good planning and is in the public interest. Furthermore, the Tribunal is satisfied that a plan of subdivision is not necessary for the orderly development of the Municipality pursuant to s. 53 (1) of the Act.
ORDER
46THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required.
47THE TRIBUNAL ORDERS that the appeal of the Consent is allowed, and provisional consent is to be given subject to the conditions set out in Schedule 1 to this Order.
48THE TRIBUNAL ORDERS that the appeal of the Minor Variances is allowed and the following minor variances to Zoning By-law No 2021-128 are authorized:
a. Pertaining to Lot 1: to expand the front yard build-within zone to 8.75 metres, to expand the exterior side yard build-within zone to 7.07 metres, and to decrease the rear yard setback to 1.5 metres.
b. Pertaining to Lot 2: to reduce the rear yard setback to 6.5 metres.
“Bita M. Rajaee”
bita M. rajaee
MEMBER
“S. Mann”
S. mann
MEMBER
Ontario Land Tribunal
Website: www.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.
OLT-22-002435 – Schedule 1
Conditions of Approval
The Appellant shall enter into a Development Agreement pursuant to Subsection 51(26) of the Planning Act with the Town of New Tecumseth, to satisfy all conditions, financial or otherwise, of the Town of New Tecumseth with regard to such matters the Municipality may consider necessary including the provision of roads and municipal services, grading, landscaping, and fencing. The Appellant will be required to pay the cost of preparing and executing this Agreement pursuant to the current Planning Fees By-law. The said Agreement shall be registered against the lands to which it applies and to the satisfaction of the Engineering Department.
The Appellant shall retain a Professional Engineer or Recognized Professional to prepare conceptual Site Servicing and Grading drawing(s) for the development on the subject lands to the satisfaction of the Engineering Department, to address servicing matters including but not be limited to site drainage, lot grading, driveway locations, building envelope, new boulevard tree location, service connections to the property line and sediment control.
The Appellant shall provide a Tree Inventory and Arborist Report prepared by a qualified Arborist as per the Town’s Tree and Natural Vegetation Management Policy By-law 2019-086. This Inventory and Report would detail trees, compensation as needed, and how remaining trees will be preserved to the satisfaction of the Public Works Department.
The Appellant shall make an application to the Public Works Department for the relocation of sanitary service connection within the municipal right-of-way to the retained parcel at their cost or resolve the location of the sanitary lateral to the Town’s satisfaction, if applicable.
Confirmation is to be received from the Tax Department indicating all outstanding levied taxes, (including penalty and interest, if applicable), are to be paid in full to the Corporation of the Town of New Tecumseth.
That one (1) paper copy and /or electronic copy of the registered Plan of Reference of the lands to which this application applies be submitted to the Secretary-Treasurer of the Committee of Adjustment for the Corporation of the Town of New Tecumseth. Draft Reference Plan to be submitted to the Secretary-Treasurer for review and approval prior to the plans being registered.
That the deed(s) with a registerable description be drawn up by the Appellant’s solicitor at no cost to the Corporation of the Town of New Tecumseth. Draft documents to be submitted to the Secretary-Treasurer for review and approval prior to the issuance of the Certificate of Official. Copies of all documentation registered in conjunction with the application must be provided to the Secretary-Treasurer following registration.
Conditions 1-7 must be met prior to the consent Certificate of Official being completed.
The above conditions shall be fulfilled on or before January 27, 2024 or this Consent shall be deemed to have lapsed.
The documentation be presented to the Secretary-Treasurer of the Committee of Adjustment for certification purposes not less than ten (10) working days prior to the lapsing date of the Consent.
Said deeds shall be registered at the County of Simcoe Registry Office on or before two (2) years from the date indicated on the "Certificate of Official" or the Consent shall be deemed to have lapsed.