Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 22, 2022
CASE NO(S).: OLT-21-001195
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Branthaven West Oak Inc.
Subject: Application to amend Zoning By-law No. 2014-014 - Refusal or neglect of Town of Oakville to make a decision
Description: To facilitate the development of the subject site with 54 residential townhouse units located on a common element condominium road
Reference Number: Z.1427.13
Property Address: Block 107, Plan 20M696
Municipality/UT: Oakville/Halton
OLT Case No.: OLT-21-001195
OLT Lead Case No.: OLT-21-001195
OLT Case Name: Branthaven West Oak Inc. v. Oakville (Town)
Heard: May 26, 2022 by video hearing
APPEARANCES:
Parties Counsel*/Representative
Branthaven West Oak Inc. D. Baker* (“Applicant/Appellant”)
Town of Oakville (“Town”) J. Huctwith*
Edward Kwiatkowski Self-represented
Joan Pinto Self-represented
Nolan Coelho Self-represented
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON MAY 26, 2022 AND ORDER OF THE TRIBUNAL
1The Town and the Applicant/Appellant informed the Tribunal prior to the hearing that they have reached a settlement (see also Exhibit 1, Tab 26). The settlement was opposed by three self-represented parties at this hearing.
2The proposal involves a Zoning By-law Amendment (“ZBA”) to permit a residential development on Block 107, Plan 20M696, at the corner of Westoak Trails Boulevard and Postmaster Drive in the Town (“Subject Property”). The Applicant/Appellant proposes to build 54 Townhouses, comprised of 26 street townhouses and 28 rear lane townhouses on a common element condominium road.
3In a letter to the Tribunal on January 27, 2022, The Regional Municipality of Halton withdrew as a party informing that all their concerns have been addressed by the Applicant/Appellant (see also Exhibit 1, Tab 25).
WITNESSES
4The Applicant/Appellant called two witnesses. The Curriculum Vitae of witnesses were reviewed and queries from all parties were satisfactorily answered by these witnesses. David Capper was affirmed and qualified by the Tribunal to provide expert opinion evidence in the area of land use planning (Exhibit 1, Tab 1). Adam Mildenberger was affirmed and qualified to provide expert opinion evidence in the area of transportation planning (Exhibit 1, Tab 2).
5Edward Kwiatkowski, a party spoke on his own behalf. Mr. Kwiatkowski was not qualified to provide opinion evidence at the hearing.
6Joan Pinto, a party spoke on her own behalf and was not qualified to provide opinion evidence at the hearing.
7Nolan Coelho, a party provided no evidence at the hearing.
EXHIBITS
8The following were marked as exhibits at the hearing:
Exhibit 1 Document Book;
Exhibit 2 Photograph Book.
EVIDENCE
Site Context and Compatibility
9Mr. Capper provided the site context with the help of an aerial photograph:
10Mr. Capper stated that the area is a mix of semis, two and three storey townhomes and small lot singles.
11Mr. Capper stated that the proposed ZBA seeks to rezone the Subject Property from the existing CU – (Community Use) Zone to a proposed site specific RM1 – (Residential Medium 1) Zone. He stated that the original CU zoning goes back to the possible place of worship use of the lands but the Town Official Plan has since been updated.
12In discussing the proposed development as agreed to with the Town, Mr. Capper stated that as part of the settlement, the number of proposed units has been reduced to 54 from the original 59. He opined that this translates to 46 units per hectare versus the original 50 units per hectare. The reduction allowed for creating greater rear yard setbacks with some surrounding properties.
13Mr. Capper stated that the internal sidewalks have been increased for connectivity with the municipal right-of-way. A pedestrian connection was included between the condominium road and Westoak Trails through two of the rear lane townhouse blocks. The pedestrian connection was located at the approximate midpoint of the Westoak Trails frontage.
14Mr. Capper stated that the revised development concept provides for 14 visitors parking spaces, which is an increase of 3 visitors parking spaces when compared to the original development concept. He opined that the revised development concept is fully compliant with the zoning requirements regarding visitors parking.
15Mr. Capper opined that the height of the townhouses is planned to be 10 metres, whereas 12 metres is allowed in the existing zoning.
16Ms. Pinto questioned as to how a three-storey townhouse is compatible with possible two storey neighbours. Mr. Capper referred to the allowed heights in the zoning by-law and asserted that the transitions are established through placement and setbacks. He opined that the proposed townhouses provide compatibility within the neighbourhood context of variety of dwellings of different types and heights.
17Mr. Kwiatkowski questioned Mr. Capper regarding setbacks which he claimed he measured as to be as little as 0.45 metres at one edge of the Subject Property and the proposed development. Mr. Capper asserted that when adjacent properties with setbacks are considered, the proposal is compatible but not same as all surrounding setbacks, with some having greater than what Mr. Kwiatkowski flagged. Mr. Capper also added that the setbacks calculation is typical of property boundaries with pinch points, which can create lesser setback conditions but in the overall design do not create incompatibility.
Traffic Analysis
18Mr. Mildenberger reviewed the traffic reports and analysis as contained in Exhibit 1, Tabs 2, 19 and 20. He stated that the analysis as based on the Town’s baseline data of traffic metrics shows that queuing was determined to be nominal, and no geometric improvements were needed based on the possible impacts due to proposed development.
19Mr. Kwiatkowski shared his concerns for possible school time crossing of pedestrians and also concerns for any with possible mobility issues. Mr. Mildenberger opined that the traffic analysis and reviews do not create unacceptable traffic impacts. He added that the parking is in-line with required zoning prescription.
20Mr. Kwiatkowski provided anecdotal evidence and confirmed that he was not a qualified professional in the area of traffic analysis or engineering.
Land Use Planning Policy and Plans
21Mr. Capper referred to his witness statement (Exhibit 1, Tab 1, paragraphs 93-196) in providing his oral testimony. He also adopted the evidence provided by Mr. Mildenberger in its entirety to assess associated planning policies and plans.
22Overall, Mr. Capper reviewed the following:
The Planning Act
The Provincial Policy Statement (2020)
The Growth Plan for the Greater Golden Horseshoe
The Halton Region Official Plan Amendment (ROPA 38)
The Livable Oakville Official Plan (2011).
23Mr. Capper opined that the proposed development has due regard for the Provincial interest as stipulated in s. 2 of the Planning Act (“Act”) in consideration of the following:
(e) the supply, efficient use and conservation of energy and water;
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
(h) the orderly development of safe and healthy communities;
(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;
(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
(j) the adequate provision of a full range of housing, including affordable housing;
(l) the protection of the financial and economic well-being of the Province and its municipalities;
(p) the appropriate location of growth and development;
(r) the promotion of built form that,
(i) is well-designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate.
24He opined that the approval of the Application would not cause a conflict with the above-mentioned matters of Provincial interest as identified in this section of the Act. He concluded that the Application has regard for matters of provincial interest.
25Mr. Capper reviewed the Provincial Policy Statement 2020 (the “PPS”) and the applicable policies that apply to the proposal while considering the PPS as a whole. He paid particular attention to policies in sections 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.4.3, 1.6.6.2 and 1.6.3. He opined that these policies direct consideration of healthy, livable and safe communities. He added that these further direct consideration for intensification in underutilized and appropriate places such as in this case being in the Town’s Urban Area and Built Boundary. Mr. Capper in conclusion opined that the proposed development and the planning instrument necessary to implement the proposal are consistent with the relevant policies of the PPS.
26Mr. Capper reviewed the Growth Plan for the Greater Golden Horseshoe 2019, as amended (the “Growth Plan”). He noted direction regarding achieving complete communities (section 1.2.1); achievement of completer communities and housing choices (policies 2.1 and 2.2.1.4). He also reviewed direction for intensification through delineated built-up areas (section 2.2.2.3.c) and opined that the proposed development conforms.
27Mr. Capper having reviewed the Growth Plan concluded that the proposed development conforms with the plan.
28Mr. Capper reviewed the Halton Region Official Plan (“HROP”) and noted that there has not been any non-conformity identified for the proposal by the Region or any other party. He reviewed in detail (Exhibit 1, Tab 1, paragraphs 140-155) and concluded that the proposal conforms with the HROP.
29Mr. Capper reviewed the Livable Oakville Official Plan (“OP”). His detailed testimony is documented in Exhibit 1, Tab 1, paragraphs 156-174. He also reviewed in detail section 11.1.9 of the OP (Exhibit 1, Tab 1, paragraph 172) which provides evaluation criteria for infill developments.
30Mr. Capper opined that overall, the proposal fully conforms with the OP.
31Having determined that the proposal fully satisfies the public policy and planning framework and having established that it does not create any unacceptable traffic or compatibility issues, Mr. Capper concluded and opined that the proposal represents good land use planning.
ANALYSIS
Preamble: Opposing Parties
32The Tribunal makes substantial accommodation for un-represented parties so that they may contribute towards fair, efficient, and wholesome hearings. It is with regret that some of the actions of the opposing parties are noted here.
33The opposing parties stated and committed as late as April 20, 2022 (the Tribunal decision dated April 28, 2022, paragraph 4) as follows:
4The unrepresented Parties confirmed that they are calling no witnesses at the hearing but will have cross-examination questions for the Applicant’s witness(es) on matters relating to the five issues (incorrectly numbered but) listed under “Pinto, Coelho and Kwiatkowski” in “Attachment 2: Issues List” in the Procedural Order. The unrepresented Parties have circulated documents to the Parties that they may seek to be marked as Exhibits at the hearing if used in questioning a witness. As is common practice for a fair hearing, all Parties may provide summary closing arguments to the Tribunal as the last stage of the hearing.
34Mr. Kwiatkowski actively provided his concerns and helped the Tribunal through his limited cross-examination. However, he called no opposing evidence in response to Mr. Mildenberger’s or Mr. Clapper’s opinion evidence. Such participation does not rise to the level of efficient processing of a hearing, where parties actively participate through relevant evidence to help the Tribunal adjudicate.
35Ms. Pinto was less than professional in her dialogue at the hearing and unprofessionally addressed the Applicant/Appellant witnesses. She further showed lack of understanding of the rules of evidence, delivery of evidence by expert witnesses and made unsupported complained about bias. She further, without providing information or requesting permission from the Tribunal disappeared and did not attend the full hearing.
36Nolan Coelho as a party did not contribute at all at the hearing and also disappeared before the completion of the hearing without informing or seeking permission from the Tribunal.
FINDINGS AND CONLUSION
37It was well established through uncontested evidence of Messrs. Capper and Mildenberger that the proposal has consideration for the relevant factors of compatibility, traffic considerations, provincial policies and plans, as well as the HROP and the OP.
38The Tribunal finds based on the evidence presented and documented by Messrs. Capper and Mildenberger, with due regard for the information that was available to the approval authority when it made its decision, as well as any statements submitted by others and the self-represented parties that the requested ZBA has due regard for the Provincial interest; is consistent with the PPS; conforms with the HROP, the OP and represents good land use planning.
ORDER
39The Tribunal Orders that appeal by Branthaven West Oak Inc. is allowed in part and By-law No. 2014-014 of the Town of Oakville is amended as per Attachment 1.
“Jatinder Bhullar”
jatinder bhullar
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-21-001195 – Attachment 1
THE CORPORATION OF THE TOWN OF OAKVILLE
BY-LAW NUMBER 2022-073
A by-law to amend the Town of Oakville Zoning By-law 2014-014, as amended, to permit the use of lands described as Block 107, Plan 20M-696
(Branthaven West Oak Inc., File No.: Z.1427.13)
PURSUANT to section 34(26)(b) of the Planning Act, R.S.O. 1990, c. P.13, Zoning By-law 2014-014, as amended is further amended as follows:
Map 19(19) of By-law 2014-014, as amended, is further amended by rezoning the lands as depicted on Schedule ‘A’ to this By-law.
Part 15, Special Provisions, of By-law 2014-014, as amended, is further amended by adding a new Section 15.415 as follows:
415
2170 Postmaster Drive Branthaven West Oak Inc. (Block 107, Plan 20M-696)
Parent Zone: RM1
Map 19(19)
(2022-073)
15.415.1 Zone Regulations for Block 1 Lands
The following regulations apply to lands identified as Block 1 on Figure 15.415.1:
a) Minimum flankage yard to a private road 1.65 m
b) Minimum flankage yard to a public road 2.35 m
c) Minimum rear yard 7.0 m
d) Maximum number of storeys 2
e) Maximum height 10.0 m
f) Maximum encroachment for porches with or without a foundation, including access stairs, into a minimum flankage yard abutting a private road Up to 1.35 m from the applicable lot line
g) Maximum encroachment for porches with or without a foundation, including access stairs, into a minimum flankage yard abutting a public road Up to 0.95 m from the applicable lot line
h) Maximum encroachment for porches with or without a foundation, including access stairs, into a minimum front yard Up to 2.5 m from the applicable lot line
i) Height shall be measured from the midpoint of the front lot line for each individual townhouse dwelling unit.
15.415.2 Zone Regulations for Block 2
The following regulations apply to lands identified as Block 2 on Figure 15.415.1:
a) The longest lot line abutting a lane shall be deemed the rear lot line.
b) Maximum number of dwelling units 20
c) Minimum lot area 98 m2 per dwelling
d) Minimum front yard 2.4 m
e) Minimum flankage yard 1.25 m
f) Minimum rear yard 0.45 m
g) Maximum encroachment for porches with or without a foundation, including access stairs, into a minimum front yard Up to 0.95 m from the applicable lot line
h) For balconies located on the floor level of the second storey, maximum total projection beyond the main wall oriented towards the rear lot line. 2.75m
15.415.3 Zone Regulations for Block 3
The following regulations apply to lands identified as Block 3 on Figure 15.415.1:
a) The longest lot line abutting a lane shall be deemed the rear lot line.
b) Maximum number of dwelling units 4
c) Minimum lot area 98 m2 per dwelling
d) Minimum lot frontage 27.75 m
e) Minimum front yard 2.5 m
f) Minimum flankage yard 1.25 m
g) Minimum rear yard 0.30 m
h) Maximum encroachment for porches with or without a foundation, including access stairs, into a minimum front yard Up to 0.6 m from the applicable lot line
i) For balconies located on the floor level of the second storey, maximum total projection beyond the main wall oriented towards the rear lot line. 2.75m
15.415.4 Zone Regulations for Block 4
The following regulations apply to lands identified as Block 4 on Figure 15.415.1:
a) The longest lot line abutting a lane shall be deemed the rear lot line.
b) Maximum number of dwelling units 4
c) Minimum lot area 98 m2 per dwelling
d) Minimum lot frontage 27.75 m
e) Minimum front yard 2.45 m
g) Minimum rear yard 3.0 m
h) Maximum encroachment for porches with or without a foundation, including access stairs, into a minimum front yard Up to 0.95 m from the applicable lot line
i) For balconies located on the floor level of the second storey, maximum total projection beyond the main wall oriented towards the rear lot line. 1.85 m
15.415.5 Special Site Provision
The following additional regulation applies:
a) The private road illustrated as Road B on Figure 15.415.2 shall be deemed a lane.
15.415.6 Special Site Figures
Figure 15.415.1
Figure 15.415.2
- This By-law comes into force in accordance with Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended.
ORDERED by the Ontario Land Tribunal in Case No. OLT-21-001195 on the 25th day of May, 2022.