Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 30, 2023

CASE NO(S).: OLT-23-000137

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Barry Wade Homes Inc.

Subject: Application to amend the Zoning By-law – Appeal of Decision

Description: To change the designation of the Subject Lands to a Site-Specific “Multi-Unit Residential” to permit the development of a condominium townhouse with 13 units

Reference Number: OPA-01/22

Property Address: 2 Robinson Street and 3 Erieus Street

Municipality/UT: City of Bayham/County of Elgin

OLT Case No.: OLT-23-000137

OLT Lead Case No.: OLT-23-000137

OLT Case Name: Barry Wade Homes Inc. v. Bayham (City)

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To change the zoning on the southern portion of the lands to a Site-Specific Village Residential zone to permit townhouse development and to permit several site -specific zone regulations

Reference Number: ZBA-02/22

Property Address: 2 Robinson Street and 3 Erieus Street

Municipality/UT: City of Bayham/County of Elgin

OLT Case No.: OLT-23-000138

OLT Lead Case No.: OLT-23-000137

Heard: September 7, 2023 by Video Hearing

APPEARANCES:

Parties Barry Wade Homes Inc. Municipality of Bayham

Counsel Analee Baroudi Amy Dale

DECISION DELIVERED BY Kurtis Smith AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Decision and Order pertains to the Proposed Development of a thirteen-unit townhouse condominium plan for a site that has direct views to Lake Erie in the community of Port Burwell.

2The matter before the Tribunal is a one-day merit hearing with respect to an Official Plan Amendment (“OPA”) and Zoning By-aw Amendment (“ZBA”) appeals (together as “The Amendments”) brought forward by the Applicant, Barry Wade Homes Inc. (“Barry Wade”), following the refusal of the OPA by the Council of the Municipality of Bayham (“Bayham”) and eventually the non-decision of the ZBA.

3Shortly after the first and only Case Management Conference (“CMC”) on this matter held on June 22, 2023, Counsel for the County of Elgin (“County”) advised the Tribunal that they had been instructed that they would not be calling any witnesses and ultimately would not participate in the hearing.

4As a result of Barry Wade and Bayham eliminating the issues relating to traffic and slope stability, as well as the departure of the County, the Tribunal was able to release the second hearing day.

5Six issues remained on the issues list. However, during the opening statements of the Parties, the lone issue mainly in dispute was issue five: will the proposed increase in density cause unacceptable adverse impacts to the surrounding area?

6To support the Proposed Development, Barry Wade called Mr. Laverne Kirkness, who is now a retired Registered Professional Planner following his fifty-year-long career in the land use planning field. Upon review of his Curriculum Vitae (Exhibit 2, pages 34-38) and Acknowledgment of Expert’s Duty Form, he was qualified on consent by the Tribunal to provide opinion evidence in land use planning.

7Additionally, Barry Wade summoned Mr. William Pol. Mr. Pol was the planning consultant for Bayham and oversaw the planning reports that were presented to the Bayham Council. Mr. Pol is a Registered Professional Planner, and upon review of his Curriculum Vitae (Exhibit 8) and Acknowledgment of Expert’s Duty Form (Exhibit 7), he was qualified on consent by the Tribunal to provide opinion evidence in land use planning.

THE LANDS AND SITE CONTEXT

8Mr. Kirkness broke the description of the lands into “Land Holdings” and “Subject Lands”. The Land Holdings is Municipally known as 2 Robinson Street and 3 Erieus Street in the Community of Port Burwell in the Municipality of Bayham. Whereas the Subject Lands are strictly the portion of the Land Holdings that are subject to the ZBA and OPA that will house the Proposed Development.

9The Land Holdings is an irregular rectangular site that is 3603.5 metres squared (“m²”) in area. As shown in the Site photos found in Exhibit 1 and Tab 3, there is a rather flat area atop a slope where a single detached dwelling (cottage) fronts onto Robinson Street. The remainder of the Land Holdings is sloped, running from high to low and from north to south, with an approximate grade difference of 8m. A retaining wall and a concrete block retaining wall are located on the west and eastern limits of the Land Holdings.

10The Subject Lands is approximately 2760m², with a frontage of 24.4m along Robinson Street and a depth of 101.8m. The lands not included in the Proposed Development are those atop the slope that contain the cottage mentioned above.

11Surrounding the site, you will find the following:

a. North – atop the slope beyond the retaining wall (and the aforementioned cottage on the Land Holdings), are four residences that represent a traditional cottage built in the 1940s and 1950s with views of Lake Erie.

b. South – Parking for the Port Burwell Beach, and Lake Erie.

c. West – Robinson Street, which is a two-lane paved road with curbs and sidewalks. On the other side of Robinson Street are vacant open space lands and the Port Burwell Harbour.

d. East – Erieus Street road allowance (unopened), Memorial Park, and the continuation of Port Burwell Beach.

PROPOSED DEVELOPMENT

12Barry Wade originally planned to redevelop the entire Land Holdings with 21 residential units. Following community consultation and discussions with Bayham, Barry Wade redesigned the site and determined that they would retain the cottage on the northern portion and only seek to develop the southern portion of the site with a 13-unit townhouse condominium designed with a “maritime” theme.

13The main access to the site for residents and vehicles would be from Robinson Street, via a 6.1m private street. Five visitor parallel parking spaces are found on the southwest portion of the private street.

14When standing at the Port Burwell Beach, the 13 townhouse units will be three storeys high. However, at the top of the slope, only the top storey of the condominiums will be seen, if at all.

15Each unit is proposed to be 145 metres squared of living space on the top two storeys with views of Lake Erie from over-sized balconies (“Observation Decks”). The first storey at ground level will contain a two-car garage.

16The Proposed Development also provides a common amenity green space, including a gazebo and playground in the far east (alongside Memorial Park).

17Lastly, the Proposed Development will utilize the rear wall (north side) of the units to be used as the structural retaining wall and the building foundation wall.

BARRY WADE’S REQUEST

18To permit the proposed development, Barry Wade must obtain the approval of the requested ZBA and OPA as attached to this decision, found in Schedules A and B, respectively, and provided below.

REQUESTED OFFICIAL PLAN AMENDMENT

19In summary, the OPA would amend the Bayham Official Plan as follows:

a. To change the designation of the land use designation from Residential and the overlay Hazard Lands designations to Site-Specific-Multi-Unit Residential;

b. Provides a Special Policy in section 4.5.3, Multi-Unit Residential, to permit an increase in density from 35 units per hectare to 48 units per hectare; and,

c. Exempts the development from the affordable housing policy in section 4.2.2.3.

20The requested OPA would be subject to the following requirements:

a. Obtaining approval for Zoning By-law Amendment to rezone the subject lands to permit the use and proposed zone regulation variation site-specifically in the Village Residential 2 (R2) Zone; and,

b. Legal establishment of an easement to the north of the building, not less than 6.1 metres in distance from the northerly foundation wall, to remain without buildings for access to foundation walls for maintenance.

21Mr. Kirkness and Mr. Pol both opined that the above-mentioned conditions are required. Noting that the easement will be part of the cottage lands that are part of the Land Holdings, which could be utilized for parking for the cottage.

22As stated in Exhibit 6, IBI Memo of January 2023, planning consultants requested the above-noted requirements in addition to the following:

a. Creation by way of Consent two separate parcels for the subject lands;

b. Confirmation from the Long Point Region Conservation Authority (“LPRCA”) in the form of a Section 28 Permit or applicable Permit prior to any development; and,

c. Entering into a Site Plan Agreement with the Municipality.

23Mr. Kirkness opined that there is no need for the condition of consent, as Barry Wade will require the consent during the creation of the condominium. Likewise, a site plan agreement is required to remove the holding provision as set out below in paragraph 26. Lastly, Mr. Kirkness is of the opinion that confirmation from LPRCA is already necessary, as it is required as part of the development process and does not need to be listed as a condition.

24As it relates to the requirement of site plan and consent applications, Mr. Pol concurred with Mr. Kirkness. On the matter of the Section 28 Permit from LPRCA, Mr. Pol agreed that the condition is not required as it would not alter the requirements of Barry Wade but offered that having it part of the OPA would ensure that everyone, including the public, is aware of the requirement. However, he confirmed that including the condition could become problematic if a Section 28 Permit is no longer a requirement from the LPRCA. While under cross-examination, Mr. Pol agreed that alternative language could be developed to meet the intent of the requirement without narrowing the confirmation of the LPRCA to the Section 28 Permit.

25Based on the above, the Tribunal finds that the inclusion of the additional conditions set out in paragraph 22 is redundant and is already part of the development process.

REQUESTED ZONING BY-LAW AMENDMENT

26The second planning instrument Barry Wade requires to permit the Proposed Development is the ZBA, which is summarized as follows:

a. Changing the Subject Lands to a site-specific Village Residential 2 (R2(h2)) (requiring site plan agreement) zone. The lands located atop the slope to remain Village Residential 1); and,

b. That the Subject Lands be subject include the following special provisions:

i. Reduce the required minimum lot area per unit to 212m²;

ii. Reduce the required minimum front yard to 1.8m;

iii. Reduce the required minimum north side yard to 1.6m;

iv. Minimum distance from an intersection of roadways to 3.0m; and,

v. Increase the maximum encroachment into a side yard by the roof eaves to 0.9m.

PLANNING EVIDENCE

27Mr. Kirkness provided the Tribunal with a complete overview of the planning evidence and analysis, in which the foundation is found in Exhibit 2, concluding that the Amendments have regard for matters of Provincial Interest set out in Section 2 of the Planning Act (“Act”), are consistent with the Provincial Policy Statement (“PPS”), conform to the County Official Plan (“COP”), Bayham Official Plan (“BOP”), and would appropriately regulate the proposed development to “ensure compatibility with surrounding lands and represent sound land use planning”.

28Mr. Pol communicated to the Tribunal that he “supports the work that is shown and the recommendation of the January 2023 IBI Memo” (Exhibit 6). Furthermore, Mr. Pol confirmed that he had an opportunity to review Mr. Kirkness’ witness statement (Exhibit 3) and stated that he has no objections or additional comments and no issues.

[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)/PROVINCIAL POLICY STATEMENT

29According to Mr. Kirkness, the Proposed Development is consistent with the PPS and has full regard to matters of provincial interest set out in section 2 of the Act.

30Mr. Kirkness opined that the Proposed Development will contribute to the full range and choice of housing in the Port Burwell community. The Subject Lands are fully serviced, have existing residential designation and zoning, and are considered to be residential redevelopment or intensification, promoting densities in a compact form. Moreover, the close proximity to Port Burwell’s downtown will support the communities’ long-term economic prosperity.

31Barry Wade is investigating the feasibility of several accessibility and energy-efficient technologies for the Proposed Development, including in-floor heating, solar energy, and electric vehicle level 2 plug-ins. Mr. Kirkness further explained that the possibility of elevators could be included in the building design, in addition to the standard accessibility features as required by the Ontario Building Code.

32As mentioned above, the design of the Proposed Development is based on a “maritime” theme. Mr. Kirkness described the theme as appropriate for Port Burwell, as it will contribute to the sense of place, furthering the vibrancy and attractiveness of Port Burwell.

33The Tribunal accepts this evidence and finds that the OPA and ZBA have regard to matters of provincial interest and are consistent with the PPS.

ELGIN COUNTY OFFICIAL PLAN

34Simply put, Mr. Kirkness stated that the overall strategic objections to the COP are “foursquare” to those in the PPS. Summarizing that the Proposed Development will assist in creating compact communities, providing available housing to all ages, and is intensifying fully serviced settlement areas.

35Section B2.5 of the COP outlines the settlement area hierarchy, which is based on their scale, function, and the level of services that exist in each settlement. Mr. Kirkness opined that the Proposed Development would be in a “Tier 1” settlement area and “is the highest priority entity designated to accommodate growth in a compact, efficient form on full municipal services,” concluding that this development “is intensification and we are doing what the County wants done.”

36The Tribunal concurs with Mr. Kirkness’s analysis that the Proposed Development conforms to the strategic direction of the COP.

MUNICIPALITY OF BAYHAM OFFICIAL PLAN

37Similarly, to the COP, Mr. Kirkness reiterated that the BOP has many of the same policy objectives as the PPS and the COP, and as a result, he opined that the proposed development conforms to the BOP.

AFFORDABLE HOUSING

38Section 4.2.2.3 outlines the provision of affordable housing, where 20% of all housing, which results in the creation of at least 5 dwelling units, is affordable housing (Exhibit 1, Page 460).

39Mr. Kirkness opined that the existing affordable housing complex in Port Burwell is 85% occupied, stating that a possible reason is that the location is too remote and distant from employment opportunities located in larger urban centres. Moreover, the Subject Lands are not suitable for affordable housing due to its highly desirable location along the waterfront. He stated that if affordable units are required, Barry Wade would look to a higher density and perhaps different housing forms, such as apartments, and concluded that the site is not considered feasible for affordable housing.

40The Tribunal accepts the opinion of Mr. Kirkness and concludes that an exemption from the affordable housing policy section 4.2.2.3 is appropriate for the Subject Site as the alternative could create adverse impacts due to the potential scale of development.

SLOPE STABILITY CONCERNS

41Mr. Kirkness addressed the concerns about the slope stability of the site, relying on the report prepared by LDS Consultants Inc., found in Exhibit 1 and Tab 11. He explained that “the PPS states that development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be migrated in accordance with provincial standards, and the regulatory requirements for such developments are demonstrated.”

42The LDS Report concluded by stating that the following had been demonstrated:

a. Proposed development plans are outside of the flooding hazard (including consideration for wave uprush);

b. The plans incorporate vehicle access along both sides of the proposed units, providing good access to the site;

c. Fill placement can occur with imported materials in a safe manner to establish, maintain, and improve upon stable conditions without reliance upon engineered structures (which may have a limited lifespan);

d. The proposed building foundations can be constructed into the existing slope to accommodate the change in grades, reducing the potential for rotational slope failures and improving upon the existing conditions, which currently exist at the site; and,

e. The development does not pose a significant risk of environmental impact since the infilling of residential land-use with municipal services does not typically cause an environmental impact.

43Following the LDS Report, LPRCA advised that they have “no objection to the proposed development, subject to the following conditions”:

a. The proposed structure must not be located on the slope or cut into the toe of the slope;

b. The proposed structure must not include structural elements that require post-construction maintenance to maintain slope stability; and,

c. Development must be set back 6m from the top of the slope.

44LPRCA notes that the above conditions appear to be demonstrated in the LDS Report and therefore advises that “the proposed applications appear to be consistent with Section 3.1 of the PPS”, Exhibit 1, and Tab 21B.

45The Tribunal accepts the evidence of the LPRCA and LDS Report concluding the slope stability concerns have been addressed.

DENSITY – THE CRUTCH OF THE MATTER

46The BOP permits a maximum density of 35 units per hectare (“UPHA”) for townhouse developments with a lot area of 340m² per unit. The Proposed Development is seeking 48 UPHA, which is 212m² per unit.

47To support the requested density for the Proposed Development, Mr. Kirkness provided the Tribunal with a unique system of “increasing” the lot size. As the site has distinctive characteristics, slope, and location on the beach, the typical rear amenity yard is not physically available. Mr. Kirkness explained that the Observation Decks of 26.4 metres squared per unit replace the typical rear yard and are located at the “much-preferred view of Lake Erie”. Thus, concluding that “if the total Observation Deck space of all 13 units was added to the overall subject lands, the density would be 43 units per hectare, which is significantly lower than the 48 UPHA and closer to the 35 UPHA maximum currently permitted”.

48Mr. Pol explained to the Tribunal that the area required to meet the Bayham requirements of density and lot area per unit is set at a higher threshold when “compared to other townhouse developments in southwestern Ontario”. He agreed that the reduction of 340m² per unit to 212, resulting in a 37 precent increase in the density is, significant, however noted that this is a unique development (slope and proximity to Lake Erie).

49Both Mr. Kirkness and Mr. Pol directed the Tribunal’s attention to the land’s designation directly adjacent to Robinson Street. Those lands, which are currently vacant, have the designation potential for density targets of upwards of 75 UPHA for apartments, 60 UPHA for stacked townhouses, and likewise 35 UPHA for townhouses. Indicating that the increased density is appropriate for the area.

50Under cross-examination by Bayham Counsel, Mr. Kirkness confirmed his position on the issue of density. He indicated that if Barry Wade were to develop the site within the current policy framework of Bayham, it would “not be a good use of land or viable” as it would “not be considered good planning that optimizes the land”.

51Mr. Kirkness provided the Tribunal with his review of the potential impact of the Proposed Development (Exhibit 2, Page 27), concluding that the Proposed Development will not cause any unacceptable adverse impacts to the surrounding area. Noting that the Proposed Development does not exceed the elevation at the top of the slope and therefore will not impede the lake views for the neighbouring property owners.

52Whilst the Tribunal is fascinated by Mr. Kirkness’ unique explanation of “reducing” the UPHA, the Tribunal does not accept the inclusion of the elevated space/Observation Decks into the UPHA as it is merely a duplication of the space at ground level.

53The Tribunal concurs that the proposed density and lot area is acceptable for the Subject Lands and would not result in any unacceptable adverse impacts.

BAYHAM ZONING BY-LAW

54It is the opinion of Mr. Kirkness that there would be no unacceptable adverse impact in regard to the special provisions sought in the Zoning By-law outlined in Paragraph 26 above.

55As it relates to the minimum lot area per unit, Mr. Kirkness communicated to the Tribunal that “a typical townhouse unit lot would measure 6 m wide by 24 m in depth, which equals 144 metres squared. Common amenity space, private roads, and visitor parking are not included in the 144-metres-squared. Even if the 144 was doubled to account for these three space requirements, the 288 metres squared is still far less than the 340 metres squared per unit required,” determining that the 340 metres squared per unit is “too large and restrictive,” thus concluding that the requested 212m² per unit is adequate. Whilst under cross-examination by Bayham Counsel, Mr. Kirkness confirmed that he did not provide any evidence for typical townhouse lots.

56There is a road allowance that exists between the Proposed Development and the lake, that is occupied by beach parking. As a result, relief for the driveway to a street intersection setback is required, as the minimum setback is 9m, whereas Barry Wade is proposing 3m. Additionally, due to the orientation of the Proposed Development Barry Wade is proposing a front yard setback of 1.8m, which aligns with the existing development, whereas 6m is required. Mr. Kirkness opined that there would be no adverse impacts from reducing these setbacks.

57A reduction of 0.1m is required for the side yard setback, reducing it to 1.6m. “This amounts to a 4-inch reduction” Mr. Kirkness explained, as “every inch count as, going up a slope”. This requirement would only apply to the western half, which he notes is part of the same Land Holdings.

58Lastly, a reduction in eave encroachment is required for the Proposed Development as 0.9m is proposed whereas 0.5m is permitted. The purpose of this increase pertains to the north face/elevation of the townhouse units. Mr. Kirkness communicated that it is in keeping with the maritime design theme and permits higher ceilings on the second living level without increasing the height of the roof pitch. Mr. Kirkness explained that reducing the roof pitch ensures that the Proposed Development will not impede the views of the lake from the properties to the north. He went on by stating that Barry Wade has considered the sight-line views of those neighbours to the north, and there is no policy to do so.

59The Tribunal concurs with the opinion of Mr. Kirkness that the sought-after ZBA is acceptable and will not result in any undue adverse impacts.

CONCLUSION

60In summary, based on the above analysis of the uncontested evidence of Mr. Kirkness and Mr. Pol, the Tribunal finds that:

a. The OPA and ZBA have regard for matters of provincial interest pursuant to s. 3 of the Act;

b. The OPA and ZBA are consistent with the PPS;

c. The OPA and ZBA conform to the COP and BOP, including slope stability, affordable housing, and density;

d. The ZBA meets the purpose and intent of the Zoning By-law;

e. The Proposed Development results in no undue adverse impacts on existing of the surrounding area; and,

f. The Proposed Development represents good planning, is appropriate and is in the public interest.

ORDER

61THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in paragraph 62 below, and the Official Plan Amendment set out in Attachment 1 and the Zoning By-law Amendment set out in Attachment 2 to this Interim Order, are hereby approved in principle.

62The Tribunal will withhold the issuance of its Final Order contingent upon confirmation by the Municipal Solicitor, of the following pre-requisite matters:

a. The Tribunal has received and approved the Official Plan Amendment and Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the Municipal Solicitor.

63The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment, Zoning By-law Amendment, and the issuance of the Final Order.

64If the Parties do not submit the final drafts of the Official Plan Amendment, Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 62 above have been satisfied and do not request the issuance of the Final Order, by Friday, March 8, 2024, the Applicant and the Municipality shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Official Plan Amendment, Zoning By-law Amendment, and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report and/or in the event the contingent pre-requisites are not satisfied by the date indicated above or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

65The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadlines for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites, and the issuance of the Final Order.

“Kurtis Smith”

KURTIS SMITH

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.