Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 5, 2022

CASE NO(S).: OLT-21-001696 (Formerly PL210281)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Brotto Investments Inc.

Subject: Application to amend Zoning By-law No. 1-2014 – Refusal of Application by the Town of Kingsville

Existing Zoning: Residential Zone 1 Urban, R1.1

Proposed Zoning: Site Specific Residential Zone 4 Urban R4.1-6

Purpose: To permit the development of a 22 unit, 3 storey apartment building

Property Address/Description: 183 Main Street East

Municipality: Town of Kingsville

Municipality File No.: ZBA/18/19

OLT Case No.: OLT-21-001696

Legacy Case No.: PL210281

OLT Lead Case No.: OLT-21-001696

Legacy Lead Case No.: PL210281

OLT Case Name: Brotto Investments Inc. v. Kingsville (Town)

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

Appellant: Brotto Invsetments Inc.

Subject: Consent

Description: To sever a residential lot

Municipal Reference Number: B/11/21

Property Address: 183 Main Street East

Municipality: Town of Kingsville

OLT Lead Case No.: OLT-21-001696

OLT Case No.: OLT-21-001154

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Brotto Invsetments Inc.

Subject: Consent

Description: Referral of a site plan application

Municipal Reference Number: SPA/24/21

Property Address: 183 Main Street East

Municipality: Town of Kingsville

OLT Lead Case No.: OLT-21-001696

OLT Case No.: OLT-21-001289

Heard: July 18 and 19, 2022 by video hearing

APPEARANCES:

Parties Counsel

Brotto Investments Inc. (“Applicant”) A. Baroudi

Town of Kingsville (“Town”) S. Hirota

DECISION DELIVERED BY BLAIR S. TAYLOR AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant had filed a development proposal for the lands known municipally as 183 Main Street East (“Subject Lands”) ultimately proposing the development of a 22 unit 3 storey apartment building, the severance of an existing heritage house from the rest of the Subject Lands and for site plan approval. This entailed a rezoning application, a consent application and a site plan application.

2All applications were appealed to the Tribunal.

3The Tribunal held a two day hearing and heard evidence from the Applicant’s land use planner, the former Town Manager of Planning Services under summons, and an independent land use planner retained by the Town for the purposes of these appeals. There was one participant’s statement filed by the owner of the adjacent property at 171 Main Street East, but no others sought either party or participant status in this matter.

DECISION

4Having had regard to the Town Council decisions and all the information and materials that were before Town Council as required by section 2.1 of the Planning Act, (“PA”), the participant statement (Exhibit 8), the viva voce evidence of the three witnesses called, the Tribunal will, for the reasons set out below:

a. Allow the rezoning appeal in part and in principle, and direct the amendment to the Town’s Zoning By-law, subject to the revision of the lot frontage in the draft ZBA found in Exhibit 1B at Tab 68 and submission of same to the Tribunal for the Tribunal’s Final Order;

b. allow the consent appeal in part and in principle, and grant provisional consent subject to submission of further materials being filed with the Tribunal for the Tribunal’s Final Order; and

c. allow the site plan appeal in part and in principle, subject to further materials being filed with the Tribunal for the Tribunal’s Final Order.

SUBJECT LANDS

5The Subject Lands are located on the south side of Main Street East having frontage of 42.6 metres (“m”) and a total area of 0.42 hectares (“ha”). The Subject Lands are improved with a 2 storey detached dwelling.

6Main Street East is an arterial road. About 700 m to the west of the Subject Lands is the main Town intersection of Main Street and Division Street and the downtown core area. About 400 m to the east of the Subject Lands is the boundary of the Kingsville commercial core being a highway commercial area with larger scale retail including a grocery store.

7The locational context of the Subject Lands include the following: to the west is 171 Main Street East (a designated detached heritage building) and further west are other detached dwellings and then the downtown core area. To the immediate east and south is a large vacant tract of land that wraps around the Subject Lands, and further east and again south of Main Street East are more single detached dwellings and then the highway commercial area which is located on both the north and south sides of Main Street East.

8Immediately to the north is the Kingsville District High School (which is slated for relocation). Immediately west of the high school (at 140 Main Street East) there is a recent residential development of 3 storeys and zoned R4.1 (originally planned to be for 24 residential units and 702 square m of ancillary commercial, but now all residential), immediately east of the Kingsville District High School site at 190 Main Street East is another R4.1 residential redevelopment, and at 200 Main Street East construction is complete for a 6 storey residential condominium.

PROCESSING

9There is an extensive and complicated history to this matter.

10The Applicant submitted its original application to the Town in September of 2019 proposing to remove the existing single detached dwelling and allow for the construction of five townhouse units fronting onto Main Street East with a 6 storey 28 unit condo to the south of the townhouse units. As the Subject Lands appeared on the Town’s heritage list a request from the owner was made to have it removed.

11As a result of comments from the Planning Advisory Committee meeting, a revised proposal was submitted by the Applicant on January 24, 2020, seeking approval of two, 4 storey 20 unit apartment buildings, and an application for a demolition permit was made.

12The Town however issued a notice of intent to designate the existing single detached dwelling under the Ontario Heritage Act. The Town refused the demolition permit, which was appealed.

13On February 9, 2021, the Applicant made a without prejudice submission to the Town proposing firstly, the conservation of the existing single detached dwelling, and secondly, the development of a 3 storey 22 unit apartment on the balance of the Subject Lands.

14A public meeting to consider the revised proposal was held on March 22, 2022. In the lead up to the public meeting the Manager of Planning Services prepared a report recommending approval of the Zoning By-law Amendment (“ZBA”), which would reduce the required rear yard from 12.2 metres to 7.5, reduce the required lot frontage from 25 metres to 16 metres and increase the permitted height from 11 metres to 12.2 metres.

15Town Council refused the ZBA and it was appealed to the Tribunal. Subsequently, the Town and the Applicant were able to reach a resolution on the heritage designation by-law, which was passed on December 13, 2021, and the Applicant withdrew its objection to the Conservation Review Board.

16The consent application (to sever off the now designated detached home) was submitted on April 8, 2021.

17While the Committee of Adjustment issued a notice that the application was scheduled to be heard on June 22, 2022, on June 9, 2021, the Committee issued a notice of public meeting postponement with a new date to be determined, which ended up being July 6, 2022, but in front of Town Council and not the Committee of Adjustment.

18The Town staff planner presented a report to the Town Council recommending the approval of the consent application but Council denied the consent application on July 26, 2021, and that was appealed to the Tribunal.

19With regard to the site plan application, it was filed on June 29, 2021, and was circulated to the Technical Advisory Committee. Some responses from the commenting agencies were received but subsequently on August 9, 2021 the Town announced that it was premature to determine the site plan application due to the unknown outcome of the pending Tribunal hearing on the ZBA, and the site plan was then appealed to the Tribunal.

20Additionally of note is that the Town also passed an Interim Control By-law on May 10, 2021, that includes the entire Kingsville District High School site, and the northerly portion of the vacant lands that abut the Subject Lands to the east and south.

21In the lead up to the hearing the Town and the Applicant were able to scope the hearing issues and a revised and updated list of issues was provided to the Tribunal and it is found at Exhibit 6.

POLICY REGIME

22The PA in s. 1 provides as one of its purposes that land use planning in Ontario is policy-led.

23S. 2 of the PA sets out a number of Provincial Interests that the Town Council and this Tribunal shall have regard to in making any planning decision. Those interests include:

• The conservation of features of significant architectural, cultural, historical, archaeological or scientific interest (d)

• The orderly development of safe and healthy communities (h)

• The adequate provision of a full range of housing, including affordable housing (j)

• The resolution of planning conflicts involving public and private interests (n)

• The appropriate location of growth and development (p)

• The promotion of development that is designed to be sustainable, to support public transit, and to be oriented to pedestrians (q)

• And the promotion of built form that:

• Is well-designed,

• Encourages a sense of place; and

• Provides for public spaces that are of high quality, safe, accessible, attractive and vibrant (r)

24S. 2.1 of the PA requires that when the Tribunal makes a decision on a land use planning matter, it shall have regard to both the decision made by Town Council and the information and materials that the Town Council considered in making its decision.

25Finally from the PA, s. 3(5) mandates that the Tribunal (and the Town Council before it) when making a land use planning decision, that such a decision shall be consistent with the Provincial Policy Statement 2022 (“PPS”).

PPS

26In Part IV of the PPS, the PPS Vision focuses growth and development in urban and rural settlement areas, encourages a range and mix of housing options including new development and intensification, and encourages efficient development patterns that optimize the use of land, resources, and public investment in infrastructure. These efficient land use patterns are to promote a mix of housing including affordable housing.

27Moving from the Vision statement into the policies of the PPS, one finds these directives:

• Healthy, liveable and safe communities are sustained by;

• promoting efficient development and land use patterns (1.1.1 (a))

• accommodating an appropriate affordable and market-based range and mix of residential types including multi-unit housing (1.1.1 (b))

• Promoting standards to minimize land consumption and servicing costs (1.1.1 (e ))

• Settlement areas shall be the focus of growth and development (1.1.3.1)

• Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

• efficiently use land and resources;

• support active transportation (1.1.3.2 (a) and (e))

• Appropriate land use planning standards should be promoted which facilitate intensification, redevelopment, and compact form (1.1.3.4)

• Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents by:

• establishing development standards for residential intensification, redevelopment and new residential development which will minimize the cost of housing and facilitate compact form, while maintaining appropriate levels of public health and safety (1.4.3 (f))

• And that long-term economic prosperity should be supported by:

• optimizing the long-term availability and use of land, resources, infrastructure, and public service facilities

• maintaining and where possible, enhancing the vitality and viability of downtowns and mainstreets

• encouraging a sense of place, by promoting well-designed built form and cultural planning, and by conserving features that help define character including built heritage resources. (1.7 (c), (d), (e))

ESSEX COUNTY OFFICIAL PLAN

28The Essex County Official Plan (“County OP”) designates Kingsville as being a primary settlement area and directs that primary settlement areas shall be the focus of growth and public/private investment.

29The goals of the County OP are to promote development within primary settlement areas that is compact, mixed-use, pedestrian orientated, with a broad range of housing types, and further to promote residential intensification within primary settlement areas.

30The policies that apply to primary settlement areas note that they should have full municipal services, be a healthy mix of housing types, be designed to be walkable communities, have cost effective development patterns and minimize land consumption and reduce servicing costs. Land use patterns which may cause environmental, heritage preservation, or public health and safety concerns are to be avoided.

31In section 3.2.7 under the heading Residential Intensification and Redevelopment the County OP encourages well planned intensification development projects in settlement areas and specifically encourages residential intensification and redevelopment within primary settlement areas in order to increase their vitality and offer a range of housing choices that efficiently use land and optimize the use of infrastructure and public service facilities. The County OP requires 15% of all new residential development be by way of residential intensification and that where possible, new development and older established areas of historic, architectural or landscape value shall be encouraged to develop in a manner consistent with the overall character of these areas.

TOWN OFFICIAL PLAN

32The Town Official Plan (“Town OP”) designates the Subject Lands as being Residential. The Residential designation actually includes three subsets: Low Density Residential, Medium Density Residential and High Density Residential. The Town OP states that areas for Medium and High Density Residential development are not specifically identified in the Town OP but rather that all types of residential development are permitted throughout the area designated Residential subject to satisfying certain criteria and that any new or Medium or High Density Residential development will require an amendment to the Zoning By-law.

33Generally the purpose of the Town OP is to set out the pattern for development that ensures a:

basic compatibility between and among various land uses in the Town, that enhances the Town as a place for living, working and leisure by helping to create a healthy, safe, attractive and convenient environment, and to provide policies that are consistent with the Provincial Policy Statement 2005.

34With regard to the Residential designation, section 3.6.1, under its Goals, provides for the encouragement of infilling of the existing development pattern, that the development standards for residential intensification, infilling, etc., shall be implemented through the Town’s Zoning By-law and that with regard to Medium Density Residential such zoning will permit single unit dwellings, two unit dwellings, three unit dwellings, single unit attached housing, townhouse dwellings, apartment buildings not exceeding three storeys in height with a maximum density not to exceed 50 units per gross hectare.

35For High Density Residential the zoning shall permit multiple family dwellings such as single unit attached housing, townhouse dwellings, apartment buildings exceeding three storeys in height with a gross density not to exceed 124 units per gross hectare.

36The Town OP then sets out the following criteria that the Town shall have regard to permit a Medium or High Density Residential development in s. 3.6.1 at page 774:

(i) the need for the proposed development as identified through an analysis of housing supply and demand;

(ii) the density and form of adjacent development;

(iii) the adequacy of, and extent of uncommitted reserve capacity the municipal potable treatment and supply system, the municipal, sanitary sewage treatment and collection system, storm drainage and roads to service the proposed development;

(iv) the adequacy of school, park and community facilities to serve the proposed development;

(v) the adequacy of off-street parking facilities to serve the proposed development;

(vi) the provision of adequate buffering measures deemed necessary to protect and provide general compatibility with the adjacent land uses; and

(vii) accessibility in relation to the location of arterial and collector roads.

(Emphasis added)

37Further the Town OP states that all Medium and High Density Residential development is subject to site plan control.

38Additionally from s. 8.11.2 (the Interpretation section) the Tribunal notes these provisions:

The intent of the Plan shall, in all cases, be considered flexible, and no strict interpretation of any figure or policy statement is intended. Appropriate variations may be made to these and to the other statements herein where, in the opinion of Council, they are deemed to be necessary for the desirable development of the planning area, provided that the general intent of the Plan is maintained. Amendments to the Plan are not required in order to make minor adjustments to the land use boundaries, provided the intent of the Plan is preserved and the land use does not exceed the boundaries of the established settlement area, existing lot line, or delineated natural heritage features.

The interpretation of its objectives and policies are flexible to the following degree: (h) Where examples of permitted uses are provided, they are intended for illustrative purposes only and do not comprise the full range of permitted uses. Specific uses which are considered by Council to be similar to a stated use and to conform to the general intent and objectives of this Plan may be recognized without further amendment to this Plan.

(Emphasis added)

39Turning to the Consent provisions within the Town’s OP the Tribunal notes the following from section 7.3:

(c) Consents should be used as a vehicle to provide for infilling in existing built up areas between residential lots and on the same side of the road;

(f) regard shall be had to the compatibility of the proposed uses in the adjacent areas and potential effects of such use on the surrounding areas;

(g) a cultural heritage and/or archeological resource assessment may be required for lands to be subdivided; and then (m) which sets out the following requirements:

(i) That all realty and business taxes are to be paid in full;

(ii) A development charge is to be paid to the Town to cover the present and future community services;

(iii) Up to 5% of the value of the lot is to be conveyed to the Town for its park fund;

(iv) Any road widening is required to be dedicated to the Town, County or Province;

(v) The Town’s implementing zoning by-law is to be amended to permit the proposed use if necessary prior to any certificate under section 50(21) of the Planning Act being endorsed on the transfer deed;

(vi) That the applicant enter into an agreement to construct and/or maintain any drainage facilities servicing the agriculture sector which traverse the Subject Property;

(vii) That the applicant if required agree to construct and/or maintain fences around the proposed lot;

(viii) That access to the property be constructed to the satisfaction and requirements of the Town and other appropriate agencies;

(ix) For the purposes of a consent, the provision of a survey of the smaller of the two lots maybe acceptable provided it satisfies the requirements of the Registry Act and the regulations thereto;

(x) That the intent of the Town shall be to discourage scattered and isolated residential development throughout the Town except where specific land division policies dictate otherwise; and

(xi) That ribbon and strip development along the local road system will be discouraged except where specific land use policies dictate otherwise.

40With regard to Site Plan Control section 8.15 of the Town’s OP provides the following objectives:

(a) to ensure proper standards of site design for new development;

(b) to ensure safety and efficiency of vehicular and pedestrian access;

(c) to ensure accessibility for persons with disabilities and the elderly throughout the built landscape;

(d) to minimize incompatibilities between new and existing development;

(e) to control the location of driveways, parking, loading and garbage collection facilities;

(f) to secure easements or grading and alterations necessary to provide for public utilities and site drainage; and

(g) to ensure that the development proposed is built and maintained as approved by Council.

ZONING BY-LAW

41From the Town’s Zoning By-law, the Tribunal would note the following regulations as they relate to the Residential Zone R1.1 where the permitted uses include a single detached dwelling with a minimum frontage of 15 m, a rear yard of 7.5 m, an interior side yard of 1.5 m, and an exterior side yard of 4.5 m, and a maximum building height of 11 m.

42The Town Zoning By-law for the R4.1 (which permits multiple unit apartment buildings) requires a minimum lot frontage of 25 m, a rear yard setback that is equal to the height of the building or a minimum of 10 m whichever is greater, an interior side yard of 4.5 m, an exterior side yard of 4.5 m and a maximum height of 11 m.

SITE PLAN BY-LAW

43The Town also has a site plan by-law (which clearly predates the recent amendments to the PA) which inter alia provides that if the value of construction exceeds $2,000,000.00 dollars or the site is located adjacent to or within a residential zone it shall be subject to site plan approval by Council and that development not exceeding $2,000,000.00 and not located adjacent to or within a residential zone shall be done on an administrative basis by the manager of planning and development services.

44In terms of the requirement of plans or drawings section 3(ii)(b) states that:

Drawings showing plan views, and at the discretion of the Manager of Planning and Development Services elevation and cross section views for each building to be provided which dwellings are sufficient to display,

(a) The size and concept design of the proposed building,

(b) the relationship of the proposed building to adjacent buildings, streets and exterior areas to which members of the public might have access…

(Emphasis added)

HEARING

45At the hearing, with the scoped and updated issues list, the Tribunal heard three witnesses: Harry Froussios, the land use planner for the Applicant, Robert Brown, appearing under summons who was at the operative times the Manager of Planning Services for the Town, and then on behalf of the Town, William Pol, the principal planner for POL Associates Inc.

46In essence the position of the Applicant advanced by Mr. Froussios and Mr. Brown was that the Subject Lands were ideally located for intensification being midway between the downtown core to the west and the highway/commercial area to the east and both within walkable distances which would promote a healthy, active community by providing intensification on an underutilized site with all existing municipal services available, and approval of the ZBA, the consent, and the site plan would be consistent with the PPS, and in conformity with the County OP and the Town OP.

47However it was the position of the Town that the Tribunal ought to deny the rezoning application, deny the consent application and deny the site plan application on the basis that the Subject Lands were not appropriate for a High Density Residential development but rather a Medium Density Residential development which would inter alia provide more frontage for the retained designated heritage property; allow the re-orientation of the apartment building by 90 degrees such that it faced the rear yard of the heritage building and had its parking to the rear; enabled the retention of more mature trees; provided for a greater compatibility with regard to the surrounding land uses and in particular the heritage structure at 171 Main Street East; and that contrary to the Town OP, no need analysis had been prepared.

48In large measure the Town’s position was derived from the Town’s consulting planner’s opinion that the south side of Main Street was materially different in character and form from that on the north side of Main Street and that the character on the south side of Main Street was single detached residential in nature in stark contrast to what was on the north side of Main Street.

49Utilizing that characterization, it was the recommendation of the Town’s consulting planner to re-orient the building to face Main Street East, be at a lesser height, with an increased side yard set back towards 171 Main Street East, with parking in the rear, with a lesser number of dwelling units, which would allow for the possible retention of a number of trees on the Subject Lands and consideration of the future development of the vacant lands to the east and south.

50Mr. Froussios and Mr. Brown both pointed out that the Town’s consulting planner unduly narrowed the “general area” for compatibility to only the south side of Main Street with a particular focus to the west and the existing single detached homes.

51Mr. Froussios and Mr. Brown noted that the Town had approved the R4.1 developments on the north side of Main Street East in the immediate area of the Subject Lands being both on the west side and east side of the Kingsville District High School and a 6 storey development further east towards the highway/commercial area.

52With regard to the vacant lands to the east and south of the Subject Lands, it was noted that the owner of that property had made no objection with regard to the development proposal through its processing and had not sought either party or participant status at this hearing.

53Moreover with regard to the suggestion by the Town’s consulting planner that the building orientation be turned 90 degrees and not allow parking in the side yard, the Tribunal was taken to Exhibit 1B, Tab 70, which is the site plan for the property known municipally as 140 Main Street East. This property abuts the Kingsville District High School to the east, abuts lands zoned R1.1 to the west and provides for parking in the side yard and not at the rear of the building.

54Addressing the issue of a need analysis, it was pointed out that no such analysis was required by the Town, that the Applicant’s application had been deemed a complete application, that anecdotally there was evidence of demand for such residential units as demonstrated by the residential approvals on the north side of Main Street East and finally that the Town OP provides that no strict interpretation of any figure or policy statement is intended.

COMMENTARY AND ANALYSIS

55To the Tribunal the Subject Lands appear to be ideally located for intensification. They are located midway between the downtown core to the west and the highway/commercial to the east, both within walkable distances and the Subject Lands are located on an arterial road. With the development that has occurred on the north side of Main Street and with the Town’s Interim Control by-law which applies to lands both on the north side of Main Street East and to the vacant abutting land on the south side of Main Street East, it is clear that the Subject Lands are located in an area in transition.

56As set out below, the Tribunal prefers the evidence of Mr. Froussios and Mr. Brown, the former Manager of Planning Services for the Town, who in his previous capacity had provided his recommendations with regard to both the rezoning and the consent application.

57The Town’s consulting planner placed emphasis on the Essex County Official Plan Policy in 3.2.7 that states:

Where possible new development in older established areas of historic, architectural or landscape value shall be encouraged to develop in a manner consistent with the overall character of these areas.

58Here the Tribunal finds that the Town’s consulting planner placed undue emphasis on the adjacent heritage structure and single detached dwellings to the west and to the exclusion of the new development on the north side of Main Street. To the Tribunal, this characterization flies in the face of the policy which encourages development in a manner consistent with the overall character of these areas.

59The Town’s concerns with regard to the adequate setback of the apartment building to 171 Main Street East also ignore the fact that the side yard setback is compliant with the Town’s Zoning By-law and as the air photos show, there are a number of mature trees along the mutual boundary property line.

60With regard to the Town’s concern about the retention of trees on the Subject Lands, the Tribunal notes that the Town does not have a private tree by-law which would regulate such removal, and that the revised landscape plan satisfies the new tree planting requirements of the Town.

61With regard to the parking in the rear the Tribunal would note that in fact the Town has previously approved the parking in the side yard in immediate adjacency to the Subject Lands on the north side of Main Street, again abutting a R1.1 zone.

62With regard to the contested lot frontage for the proposed severed lot, the Tribunal would firstly note that this is notionally a technical amendment. The Subject Lands have over 42 m of frontage. The required R1.1 frontage for the detached dwelling is 15 m and for the (R4.1) severed lot is 25 m. Thus were it not for consideration of the heritage building, there is adequate frontage to comply with the Zoning By-law requirements for lot frontage.

63Where the Tribunal does find favour with the Town’s submissions it is with regard to the irregular jog (the “notch”) in the property line that would sever the heritage house at 183 Main Street East from the retained lands.

64For ease of reference appended to this Decision as Attachment 1 is Exhibit 10 which depicts the irregular lot line proposed between the severed and retained lands.

65The Tribunal notes the notch reduces the lot frontage for the heritage house (by about 3-3.5 m), and it creates the irregular lot line. The Tribunal finds that the streetscape presence of the heritage house would be enhanced by the elimination of that notch, thus increasing the lot frontage for the heritage house.

66The Tribunal understands from the submissions of the Applicant’s counsel in closing that the Applicant would consent to that alteration of that lot line.

67With regard to the concern about parking in the side yard the Tribunal notes that this has been done on the north side of Main Street East, and that the owner of the property to the east and south made no objection or raised any concern with regard to the development proposal.

68Addressing the proposed height of the 3 storey apartment building at 12.2 m, at Exhibit 1B Tab 58 there is an illustration contrasting a flat roof and the peaked roof. While the flat roof has a lesser height, to the Tribunal the peaked roof has a more aesthetic design akin to the character with the existing adjacent single family residential residences to the west, would be complementary in design and character, and further that the height increase is modest.

69With regard to the rear yard setback while the relief sought is for 7.5 m whereas 12.2 m is required, the Tribunal notes that the 7.5 m is located at the southeast corner of the proposed apartment building and that the southwest corner is at 11.3 m (due to the irregular shape of the lot). The revised landscape plan at Exhibit 10 (and attached to this Decision), illustrates that the rear yard provides sufficient space for amenities and tree planting. Thus the Tribunal finds that the rear yard space is appropriate.

70Turning to the consent application the Tribunal notes there is no requirement for a plan of subdivision and that the Town’s consulting planner opined with regard to section 51(24) (c) as to whether it conforms to the official plan and (f) the dimension and shape of the proposed lot.

71As noted above, the Tribunal has found that the rezoning application is in conformity with the County OP and conforms to the Town OP but that the notch area (about 3 to 3.5 m in width) is to be eliminated. For the consent application the Tribunal finds that it does conform to the County OP and the Town OP and with the elimination of the notch will satisfy s. 51(24)(f). The Tribunal will require the resubmission of the draft plan of consent for consideration by the Tribunal eliminating the notch. In all other matters with regard to the consent application the Tribunal is satisfied that all the criteria have been met.

72With regard to the conditions of consent, the Tribunal has reviewed the report to Town Council at Exhibit 3C and the proposed conditions of consent at Exhibit 1B Tab 69. The Tribunal finds the recommended conditions of approval to be generally appropriate and reasonable with the notation arising from the Tribunal’s direction to remove the “notch” from the consent drawing, that the listed dimensions of the severed lot and lot to be retained will need to be revised, and that the lapsing date to be inserted will be two years from the date of the Tribunal’s Final Order.

73With regard to the site plan drawing as found at Exhibit 1B Tab 42, and the landscape plan at Exhibit 10, as noted above, the notch is to be removed and the Tribunal will require a final site plan drawing illustrating same.

74As the Town by letter of August 9, 2021, had advised the Applicant that it was premature to proceed with the site plan application, no formal staff report or recommended conditions of approval was prepared and no set of recommended site plan conditions of approval was filed as a separate exhibit with the Tribunal.

75Accordingly, the Tribunal first directs that the counsel for the Applicant and the Town to cooperate in the preparation of a set of site plan conditions based on this Decision using the Town’s standard site plan template for conditions of approval, and provide same to the Case Coordinator for consideration by the Tribunal.

76In addition, the Tribunal, in an abundance of caution, will require as a condition of site plan approval that the Applicant at its expense install a board-on-board fence at a height of 1.8 m for that portion of the retained lands abutting the lands at 171 Main Street East.

CONCLUSIONS

77Based on the consideration of all the information and material that was before the Town Council for the ZBA and the consent application, and having considered the decisions of the Town Council with regard to the rezoning application, the consent application and the alleged prematurity of the site plan application and having considered the viva voce evidence of the witnesses and having considered the participant’s statement, the Tribunal finds that all the matters of Provincial Interest in s. 2 of the PA have been given due consideration, that the development proposal constitutes an appropriate infill intensification on lands that are located on an arterial road, in an area of transition and are ideally situated for intensification all of which is consistent with the PPS and in conformity with both the County OP and the Town OP.

78The Tribunal finds that the development proposal will result in heritage protection, and the intensification of an underdeveloped site in an ideal location for intensification, all within a primary settlement area. The proposed development will efficiently use land and existing infrastructure, will be in a compact form and well-designed, and will add to the range and mix of housing that is available in the Town.

79Thus the Tribunal allows the rezoning appeal in part and in principle and directs the amendment to the Town’s Zoning By-law subject to the revision of the draft ZBA as found in Exhibit 1B at Tab 67, and the submission of same to the Tribunal for the Tribunal’s Final Order.

80With regard to the consent application, as the Tribunal is satisfied that no plan of subdivision is necessary, that the consent is consistent with the PPS and conforms to the County OP and Town OP, and that all the criteria in s. 51(24) of the PA have now been addressed, it will allow the appeal in part and in principle and grant provisional consent, subject to receiving a revised consent sketch eliminating the “notch” from the frontage of the lot to be severed, and subject to the conditions of consent as recommended by the Town Staff as found in Exhibit 1B at Tab 69 but amended for the dimensions of the severed and retained lots and for the lapsing date referenced above.

81With regard to the site plan appeal, the Tribunal will allow the appeal in part and in principle as found in Exhibit 1B at Tab 42, subject to receiving a revised site plan drawing showing the elimination of the notch from the frontage of the lot to be severed and a set of site plan conditions of approval. As noted above, the Tribunal directs counsel to cooperate in the preparation and submission of draft site plan conditions of approval in which the Tribunal will require the Applicant at its expense to construct a board-on-board fence 1.8 metres high on that westerly portion of the retained lands abutting 171 Main Street East.

82The Tribunal directs that the revised ZBA shall be provided to the Tribunal’s Case Coordinator (with a copy to the Town counsel) on or before Friday September 2, 2022.

83The Tribunal directs that the revised consent sketch and the amended conditions of approval be provided to the Tribunal’s Case Coordinator (with a copy to Town counsel) on or before Friday September 2, 2022.

84Similarly the Tribunal directs that the revised site plan with the conditions of approval be provided to the Tribunal’s Case Coordinator on or before Friday September 2, 2022

85In the event the required documentation is not provided to the Case Coordinator on or before Friday September 2, 2022, a detailed written submission shall be provided to the Case Coordinator by the required date.

86Time shall be of the essence.

87Appended hereto is Attachment 1 for ease of reference purposes.

88This is the Interim Order of the Tribunal.

89I remain seized of this matters.

“Blair S. Taylor”

BLAIR S. TAYLOR

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