Milski Inc. v. Thorold (City), 2023 CanLII 106634

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 06, 2023

CASE NO(S).:

OLT-22-003928

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

Applicant/Appellant:

Milski Inc.

Subject:

Application to amend the Zoning By-law – Refusal of application

Description:

To permit the development of a three-storey, 34-unit apartment building

Reference Number:

D-14-10-2021

Property Address:

1970 Decew Road

Municipality/UT:

Thorold/Niagara

OLT Case No:

OLT-22-003928

OLT Lead Case No:

OLT-22-003928

OLT Case Name:

Milski Inc. v. Thorold (City)

Heard:

January 16 to 17, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Milski Inc.

Robert Di Lallo

City of Thorold

Patrick Harrington

Laura Dean

DECISION DELIVERED BY S. Bobka AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This matter involves an appeal by Milski Inc. (“Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) for the City of Thorold’s (“City”) denial of an application for a Zoning By-law Amendment (“ZBA”) for the property municipally known as 1970 Decew Road (“Subject Property”).

2The proposal seeks to amend Comprehensive Zoning By-law No. 2140(97) (“ZBL 2140(97)”) and Comprehensive Zoning By-law No. 60-2019 (“ZBL 60-2019”), to permit the development of a three-storey, 34-unit apartment building.

3In addition to the statutory Parties, Nicholas Bozza and Tony Bozza, were each granted Participant status at the previous Case Management Conference. The Participants’ statements included concerns regarding the proposed increase in density, the potential impacts on traffic and congestion and ensuring the protection of the wetland and Lake Gibson to the south of the Subject Property.

SUBJECT PROPERTY

4The Subject Property is approximately 0.4 hectares (“ha”) in size and presently has a single detached dwelling thereon. It is located on the north side of Decew Road (which is a collector road) between Richmond Street and Decew Woods Court with a frontage of approximately 31.7 metres (“m”) on Decew Road and a depth of 127.5 m.

5Access to the Subject Property is from Decew Road and there is an easement in favour of the owner which is registered on title across the lands of an adjacent owner to the east for servicing.

6The Subject Property is surrounded by the following:

• to the north and east – single detached residential dwellings on individual lots;

• to the west – vacant single detached residential lot; and,

• to the south – natural open space (which is designated “Wooded Area” and “Provincially Significant Wetland” in the City’s Official Plan (“OP”)) backing onto Lake Gibson.

7The Subject Property is:

• designated as a Built-Up Area within the Regional Official Plan (“ROP”); and,

• designated “Urban Living Area” in the OP.

8The application would amend the zoning as follows:

from

to

ZBL 2140(97)

R1A (Residential First Density)

R4B-6 (Residential Fourth Density) with site-specific provisions

ZBL 60-2019

R1A (Single Detached) 'Natural Heritage Feature Buffer Area' zone

R4A-75 (Apartment and Long-term Care Facility) with site specific provisions 'Natural Heritage Feature Buffer Area' zone

It is noted, as indicated above, that under ZBL 60-2019, the ‘Natural Heritage Feature Buffer Area’ zoning would be maintained.

CURRENT APPLICATION / EFFECT OF PROPOSAL

9Originally, the application was to permit a four-storey apartment building with 45 dwelling units; however, that application was revised following a Public Meeting held on December 7, 2021.

10The proposal that went before City Council (and which is now before the Tribunal) was for a three-storey, 34-unit apartment building with approximately 80% as one-bedroom apartments and 20% as two-bedroom apartments. It would feature a total of 51 parking spaces, with 23 spaces provided outside, at grade, at the rear of the property and 28 spaces provided indoors within the building, as well as both indoor and outdoor bicycle parking.

11The application was circulated with comments received from the Niagara Region (“Region”), the City, the Niagara Peninsula Conservation Authority (“Conservation Authority”) and other external agencies. The Region did not object to the proposal and the Conservation Authority had no objections or requirements regarding the proposal.

12City Planning Staff reviewed the application and recommended approval of the rezoning for both ZBL 2140(97) and ZBL 60-2019. Following a statutory Public Meeting held on April 26, 2022, City Council denied the application and the Appellant subsequently appealed that decision to the Tribunal.

13The effect of the proposal will be to change the zoning to permit an apartment building where currently this is not permitted. It is noted that there are currently no apartment buildings in this residential neighbourhood. The key issue to be determined is whether the use and built form is appropriate and compatible with the existing neighbourhood.

14During the Hearing, it was identified that two additional changes to ZBL 2140(97) would be required regarding: a) Required loading spaces: none required; and b) Location of Parking Areas: to be permitted within 0.7 m of a Residential First Density or Residential Second Density Zone.

LEGISLATIVE TESTS

15In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.

HEARING

16To support the proposal, the Appellant called Daniel Romanko, a Land Use Planner and summoned Paul Klassen, a former Senior Planner for the City. Ultimately, the Appellant did not call upon Mr. Klassen to present any evidence. In opposition to the proposal, the City called Michael Barton, a Land Use Planner. Upon review of their Curricula Vitae and Acknowledgement of Expert’s Duty forms, Mr. Romanko and Mr. Barton were both qualified by the Tribunal to provide opinion evidence in land use planning.

Evidence of Appellant’s Witness

17Mr. Romanko’s overall opinion was that the proposal has appropriate regard for the matters of provincial interest, is consistent with the PPS, conforms to the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”), the ROP and the OP and represents good land use planning.

18Regarding the matters of provincial interest, Mr. Romanko opined that the proposal:

• will not impact any natural heritage features on or adjacent to the Subject Property;

• will permit the orderly development of a safe and healthy community;

• will expand the housing typology in the neighbourhood and provide more affordable housing options;

• is appropriately located in the urban area;

• is compatible with surrounding land uses and will feature appropriate density satisfying the public need for growth/housing without compromising private interests;

• includes sufficient amenity space, featuring a large, landscaped buffer between the parking area and the existing rear yards;

• features parking that is not visible from the street; and,

• is well-designed with high quality materials and architectural details which will have minimal impact on existing land uses and will enhance the built environment.

19It was Mr. Romanko’s opinion that the proposed ZBA is consistent with the PPS, as it:

• promotes efficient use of land, features a range and mix of units and is supported by existing infrastructure and services (s. 1.1.1);

• promotes intensification within the existing built-up area in the City’s core settlement area, using designated urban lands and available infrastructure (s. 1.1.3.3);

• contributes to a range and mix of housing where appropriate infrastructure, services and transit exists (s. 1.4.3);

• promotes a well-designed built form that fits with the surrounding neighbourhood (s. 1.7.1);

• does not impact natural heritage features on, adjacent to or south of the Subject Property (s. 2.1.8); and,

• helps to attain the City’s residential housing targets.

20Mr. Romanko was of the opinion that the proposal conforms to the GP and highlighted policies in sections 2.2.1, 2.2.3 and 2.2.6 as it:

• directs growth within a Settlement Area with existing infrastructure (including transit) and services while adding to the type of housing options;

• supports intensification in Built Up Areas by providing higher density, additional types of housing and efficient use of land that can support transit; and,

• encourages a range of housing options, including more affordable options, and adds to the supply of housing.

21Mr. Romanko opined that the proposal will contribute to the City’s minimal intensification target of 15%, as is set out in the ROP. He identified that while the Subject Property is not in an Intensification Area, by introducing apartment units, the proposal provides a different type of housing that is compatible in scale, density and mass with the surrounding neighbourhoods and also supports transit. He highlighted that the proposed low-rise built form is only marginally taller than the surrounding houses, is on a collector road and is near an intersection with an arterial road and bus stops. In addition, Mr. Romanko testified that the proposed building will have a positive contribution to the public realm and will improve the streetscape with its urban design features. Overall, Mr. Romanko was of the opinion that the proposed development conforms with the ROP.

22It was Mr. Romanko’s opinion that the proposed ZBA conforms to the OP and specifically with the policies related to the “Natural Heritage Buffer Zone”. He specified that the proposal:

provides intensification of underutilized land in the City’s Urban Living Area that has demonstrated compatibility with surrounding land uses. Design features, such as the siting of the building, the building’s limited height, enhanced setbacks and buffering all contribute to compatibility. The proposed density is below the threshold that the OP provides for residential zones in the Urban Living Area. (Exhibit 3, paragraph [36(a)])

23He further opined that the proposal meets the compatibility criteria found in s. B1.1.5 of the OP as there is adequate land for the proposed use and parking, and there are no negative traffic implications. Mr. Romanko testified that in terms of scale, density and mass, the proposal is compatible with the surrounding residential neighbourhoods. He highlighted that the submitted Functional Servicing Report (which was accepted by City Engineering Staff) confirms that there are adequate services to support the proposed development.

Evidence of City’s Witness

24Mr. Barton opined that:

• the proposed built form is not appropriate for the Subject Property;

• there is insufficient transition from the proposed development to the existing low-rise uses in the neighbourhood;

• the proposal will not have an appropriate relationship to the surrounding neighbourhood; and,

• the proposal is not representative of good planning, nor would it be in the public interest.

25He specified that the proposal does not have appropriate regard for the matters of provincial interest, is not consistent with the PPS and does not conform to the GP, ROP or OP.

26Mr. Barton stated that the:

proposed apartment building represents land use that does not reflect, respect and reinforce the existing built form character of the stable residential neighbourhood in which the Subject Property is located. The proposed building typology, height, massing and density is not consistent or compatible with the surrounding low-density residential uses, which are composed predominantly of 1- and 2- storey single detached dwellings on individual lots. (Exhibit 6, paragraph [11])

27He opined that the Applicant “has not demonstrated the need to permit an apartment building and significantly increase the residential density on the Subject Property relative to the existing and planned context to achieve the growth and intensification targets for the City”.

28Mr. Barton stated that the proposal does not have regard for the matters of provincial interest found in s. 2 of the Act, specifically:

(h) the orderly development of safe and healthy communities;

(n) the resolution of planning conflicts involving public and private interests;

(p) the appropriate location of growth and development; and

(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.

29He highlighted that the Subject Property has not been identified as a target location for growth and intensification and that the current neighbourhood is characterized by and planned for single detached and duplex dwellings.

30Mr. Barton opined that the proposal is not consistent with the PPS as it does not “take into account existing building stock or land use character … [and] will be a significant change from the land use and built form characteristics of this low-density residential community”. He stated that the proposal exceeds the development standards implemented through the regulations of the Zoning By-laws which is not appropriate.

31Mr. Barton highlighted the following sections of the PPS:

s. 1.1.3.3 - Planning authorities shall identify appropriate locations and promote opportunities for transit-supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas… and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs; and

s. 1.1.3.4 – Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety

32Mr. Barton opined that the proposal does not conform to the GP as it:

• features a higher density residential use than currently exists on the Subject Property;

• is in a location that has not been identified or targeted for growth and intensification;

• has not demonstrated that it is necessary for the Subject Property to be developed at a higher density in order to meet the objectives of the GP; and,

• is not located in or in proximity to a strategic growth area.

33It was Mr. Barton’s opinion that the proposed development does not conform with the ROP, and highlighted policy sections 4.C.2.1 (d), (e), (i) which speak to municipally designated intensification areas:

d) Plan Intensification Areas to attract a significant portion of population and employment growth, relative to the shape and character of the community.

e) Plan Intensification Areas to provide a diverse mix of land uses that complement and support the overall residential intensification objective. These may include, employment, commercial, recreation, institutional and other compatible land uses in relative proportions dependent on area characteristics and the intended critical mass of residential development.

i) Ensure that Intensification Areas provide appropriate densities and transitional areas to ensure relative compatibility with surrounding neighbourhoods including the use of minimum and maximum heights and densities.

34He stated that the ROP has not identified the Subject Property as a target for residential intensification and that compatibility “with the existing land use and built form character of the surrounding community has not been taken into consideration.” He further opined that a proposal featuring this type of intensification would be more appropriately located in an area such as the downtown.

35Mr. Barton opined that the proposal does not conform to the general purpose and intent of the OP, specifically policies B1.1.3, B1.1.5 an D1.4.

36The Subject Property is designated an “Urban Living Area” in the OP which does permit apartment buildings; however, Mr. Barton opined that the proposal did not meet the applicable criteria found in s. B1.1.5. He stated that the proposal would feature significant intensification that would considerably alter the “land use, built form and open space character”.

37Mr. Barton highlighted that in the OP, a dwelling type other than a single detached dwelling or accessory apartment must satisfy s. B1.1.5 which requires that the proposal:

a) Respects the character of adjacent residential neighbourhoods, in terms of height, bulk and massing;

b) Can be easily integrated with surrounding land uses;

c) Will not cause or create traffic hazards or an unacceptable level of congestion on surrounding roads; and,

d) Is located on a site that has adequate land area to incorporate required parking, amenity areas, recreational facilities, landscaping and buffering on-site.

(Exhibit 6, paragraph [29])

38He stated that regarding s. B1.1.5, the proposal is “out of character with the surrounding community and is not respectful of, compatible with, and designed to be integrated with the community.”

39Mr. Barton opined that the proposal is:

not consistent with the existing land use and built form character of the community and the planned character established by the existing and new Zoning By-Law categories. The Downtown and Downtown Transitional areas are identified as prime locations for intensification through residential and mixed use development. These locations are appropriate for achieving the growth and intensification targets of the municipality.

(Exhibit 6, paragraph [96])

40Regarding ZBL 60 (2019), Mr. Barton highlighted that the Subject Property is zoned “R1A – Single Detached’ and that the majority of properties in the:

surrounding low density residential community are zoned “R1A - Single Detached”, “R1B - Single Detached, Duplex” and “R1C - Single Detached Duplex”. These zoning categories permit only single detached dwellings, duplex dwellings, group homes and accessory uses. Apartment buildings are not permitted in any of these zoning categories.

(Exhibit 6, paragraph [50])

41Regarding ZBL 2140 (97), Mr. Barton identified that the only:

RESIDENTIAL FOURTH DENSITY R4B ZONE in this residential neighbourhood is Block 36 Summers Drive, which has been zoned R4B-2 to permit an apartment building, a group home, street townhouse dwelling and accessory buildings and structures to these permitted uses. Moreover, this property is located at the periphery of the neighbourhood, backs directly onto Highway 58 and directly abuts a Residential Third Density R3 Zone, as opposed to an R1A zone.

(Exhibit 6, paragraph [40])

42Mr. Barton also stated that the proposal does not comply with the regulations of the zones, as it requests reductions to the minimum landscaped open space, amenity area, setbacks, planting/buffer strips, loading and driveway width.

FINDINGS

43While the type of housing proposed is certainly different, the Tribunal finds that the proposed residential use, the increased density and the built form are appropriate and compatible with the existing neighbourhood.

44It was Mr. Barton’s position that the Subject Property was not in an area identified by the Region or City for intensification. The Tribunal prefers the position of Mr. Romanko that while it has not been specifically selected for intensification, intensification is not precluded on the Subject Property and that the proposal is appropriate.

45The Tribunal finds that the proposal:

• is located at the periphery of the existing residential neighbourhood;

• fronts onto a collector road, not into the Decew Woods Court as do the majority of the single detached dwellings;

• has taken care to limit height and width to that similar to the surrounding dwellings;

• does not introduce a new use, as the current use is residential;

• will contribute to the provision of a range of housing options; and,

• will not have unacceptable adverse impacts on the surrounding properties.

46Mr. Barton stated that “the crux of this matter is whether the use and built form associated with the proposed apartment building are appropriate ….” The Tribunal finds that the built form has been purposefully designed to respect and reflect the height and width of the existing dwellings in the neighbourhood. The Tribunal also finds that the residential use is appropriately located in a Settlement Area with sufficient servicing.

47The Tribunal finds that the proposal does consider, respect and reflect the character of the surrounding neighbourhood. Being respectful of the character of the neighbourhood does not mean it has to be exactly the same, and the Tribunal finds that the proposal has been designed in a careful and thoughtful manner, taking into account the concerns regarding privacy and overlook.

48The Tribunal finds that the proposal has regard to the matters of provincial interest in s. 2 of the Act, including (but not limited to):

(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;

(j) the adequate provision of a full range of housing, including affordable housing;

(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.

49The Tribunal finds that the Subject Property meets the criteria of s.1.1.3.3 of the PPS as it is an appropriate location to promote an opportunity for a transit-supportive development that accommodates an additional supply and range of housing options through intensification and redevelopment. The proposal has taken into account the existing building stock in the area and there is appropriate infrastructure and public service facilities.

50Regarding policy B1.1.5 of the OP, the Tribunal prefers the evidence of Mr. Romanko and finds that the proposal has respected the surrounding character by limiting the height, through the siting of the building and by limiting the width of the proposal so that from the street view it is similar to other surrounding structures and integrates with the existing surrounding residential use. The Tribunal was not presented with evidence that the proposal would create significant issues with traffic or congestion or would pose any risk to public health or safety. The Tribunal also prefers Mr. Romanko’s evidence that the site can adequately accommodate parking, amenity areas, recreational facilities, landscaping and buffering.

51The Tribunal is persuaded by the evidence that the proposal promotes efficient development of land, intensifies the residential use within the Urban Living Area and contributes to the range of housing options which is supported by existing municipal infrastructure. More significantly, the proposal furthers the goals and objectives of the provincial planning regime to increase density opportunities within a Settlement Area.

52The Tribunal finds that the Participants’ concerns regarding traffic and density have been sufficiently addressed. In addition to Mr. Romanko’s evidence that natural heritage features would not be impacted by the proposal, the Tribunal also reviewed the Witness Statement of Ian Barrett (marked as Exhibit 4), a Senior Biologist, who was retained to provide ecological and policy opinion evidence. Mr. Barrett concluded that the proposed ZBA conforms to s. 2(a) the Act, is consistent with policies 1.1.1(c), 2.1.8 and 4.6 of the PPS and conforms to the policies related to the Natural Heritage Buffer Zone of the ROP and OP. The Tribunal notes that the Conservation Authority had no objections or requirements regarding the proposal. The Tribunal is satisfied that the concerns raised by the Participants regarding the protection of Lake Gibson and the surrounding natural environment have been considered and addressed.

53Overall, the Tribunal prefers the evidence of Mr. Romanko and is therefore of the view that the proposal has had regard for the matters of provincial interest, is consistent with the PPS and conforms to the GP, the ROP and the OP. The Tribunal has, in general, had regard for the related decisions of the municipality and is satisfied that the proposed ZBA represents good planning in the public interest.

ORDER

54THE TRIBUNAL ORDERS that the appeal is allowed, in part, and Zoning By-law No. 2140(97), as amended, and Zoning By-law No. 60-2019, as amended, of the City of Thorold are hereby amended as set out in Attachments 1 and 2 (respectively) to this Order. The Tribunal authorizes the municipal clerk of the City of Thorold to assign a number to this By-law for record keeping purposes.

“S. Bobka”

S. BOBKA 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.

ATTACHMENT 1

ATTACHMENT 2