Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 13, 2023 CASE NO(S).: OLT-21-001168

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 2737468 Ontario Inc. Subject: Minor Variance Property Address/Description: 255 Gowrie Street Variance from By-law: 2009-045 Municipality: Township of Centre Wellington Municipal File No.: A016/2021 OLT Case No.: OLT-21-001168 OLT Lead Case No.: OLT-21-001168 OLT Case Name: 2737468 Ontario Inc. v. Centre Wellington (Township)

Heard: September 2, 2022 by video hearing and completing in writing

APPEARANCES:

Parties	Counsel/Agent*
2737469 Ontario Inc. (Appellant / Applicant)	Patrick J. Kraemer
Township of Centre Wellington

MEMORANDUM OF DECISION DELIVERED BY S. MANN AND ORDER OF THE TRIBUNAL

BACKGROUND

12737468 Ontario Inc. (“Appellant”) applied for a minor variance to address zoning compliance for a proposed lot to be severed from the property the Appellant possesses at 255 Gowrie Street in the municipality of Fergus (“Subject Property”).

2The proposed variances are as follows :

1. Severed Lot frontage 14 meters minimum when 15.2 meters minimum is required;
2. Severed Lot area 356 square meters minimum when 557 square meters minimum is required;
3. Retained Lot area 507 square meters minimum when 557 square meters minimum is required; and
4. Retained Lot coverage 38% maximum when 30% maximum is required.

3On June 17, 2021, the Township of Centre Wellington (“Town”) Committee of Adjustment (“COA”) refused the application.

4The Appellant appealed the COA decision to the Tribunal due to concerns that the COA did not properly consider the four tests as mandated by s. 45(1) of the Planning Act (Act). The COA emphasized procedural issues with the application, stating that an application for consent should be submitted to the Town before a minor variance application could be considered.

5Following the filing of the appeal, discussions between the Appellant and Town resulted in the filing of a subsequent application for consent to sever the Subject Property (“Severance Application”). The Severance Application received expedited provisional consent from the Wellington County Land Division Committee on April 14, 2022 with no opposition.

6Following the passing of the appeal period of the Severance Application, the Appellant engaged the Town with minutes of settlement in order to negotiate resolution of the Variances.

7On June 6, 2022, the Town advised the Appellant that they are not opposed to the Variances proceeding, and that should the Appellant seek a date from the Tribunal they would not appear and the matter could proceed uncontested with the Appellants Planner providing uncontroverted testimony.

Subject property

8The Subject Property contains a single detached dwelling on a wide, irregularly shaped and shallow lot, sloping gently to the north. The lot is zoned Residential 1-B Fergus Heritage Overlay, and is located near downtown Fergus in an area with a mix of older and new homes with a variety of lot sizes, converted dwellings, a funeral home abutting the back of the Subject Property and the Fergus Hospital directly across the street.

9The Fergus Heritage Overlay (Heritage Overlay) identifies locations where “a significant number” of buildings with heritage values are located and where development proposals put forward shall be “compatible, sensitive and sympathetic” with heritage values. The Heritage Overlay imposes site and building regulations requiring wider and larger lots with increased setbacks than other lots zoned R1-B.

EVIDENCE

10The Appellant relied on the evidence of Mr. Bill White, a Registered Professional Planner, who was qualified by the Tribuanl to provide expert opinion in the area of land use planning.

11The Tribunal received and marked the following documents as Exhibits to the hearing:

1. Engineering Drawing
2. Provisional Consent Approval B 13-22 Wellington County Land Division
3. Reference Plan 16R-22268
4. Planning Report Bill White MCIP RPP

MINOR VARIANCE

12The Application included a report from Mr. White stating that the Variances, subject to reasonable conditions, are minor, desirable for the appropriate development and use of the Subject Property, and maintain the intent and purpose of the Township of Official Plan (OP) and the Township Zoning By-Law 2009-045 (ZBL). The report further states that the proposed variances and future severance represent good planning practices and support compatible infilling within the Heritage Overlay.

13Exhibit 1 contains an engineering drawing of the Variances, including dimensions and descriptions of the proposed lots, submitted with the Application. The Variances relate to lot area and lot coverage for the proposed severed and retained lot.

14Based on the history of Application, including the Exhibit 2 consent for severance, the Appellant is requesting an order to approve the Variances on s. 7.1.3 Table 7(c) of the ZBL, as amended to implement the lot configuration described by the Exhibit 3 reference plan.

analysis

15The Tribunal considered the four-part test set out in s. 45(1) of the Act relating to the test for minor variance:

1. Does the variance maintain the general intent and purpose of the official plan?
2. Does the variance maintain the general intent and purpose of the zoning by-law?
3. Is the variance desirable for the appropriate development or use of the land?
4. Is the variance minor?

16In addition, the OP includes additional tests:

1. Whether any appropriate conditions should be attached to the variance approval.
2. Whether compliance with zoning would be unreasonable, undesirable or pose undue hardship on the applicant.

17In addition to the test for minor variance as set out in s. 45(1) of the Act, the Tribunal must also determine whether the Variances are consistent with the Provincial Policy Statement 2020 (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (GP).

18Exhibit 4 provides an updated planning report from Mr. White, which the Tribunal relies on as the uncontested planning opinion for this matter.

Provincial Policy Statement and Growth Plan

19The expert opinion of Mr. White indicates that the resulting infill is consistent with both the PPS and GP.

20The PPS focuses growth and development to settlement areas, infilling to maximize use of existing service capacity is emphasized throughout the PPS, with such policies being consistent with the GP.

21Both policies provide guidance on development within heritage resources with a direction to conserve. The proposed development would allow for the conservation of heritage resources while maximizing use of services through infill.

Does the variance maintain the general intent and purpose of the official plan?

22The Subject Lands are designated Residential Land Use, which encourages a mix of housing types on full municipal services as well as intensification that maintains stability and character of the neighbourhoods.

23The Fergus Heritage Area identifies locations within the community wherein a significant number of buildings contain heritage value and to ensure proper consideration is given to protecting these buildings when development proposals are put forward. The OP allows development that is “compatible, sensitive and sympathetic” to any existing heritage buildings, neighbouring buildings and the area considering size, scale and character of surrounding heritage structures.

24The evidence of Mr. White indicates that intensification is encouraged to make efficient use of existing municipal infrastructure including water, sanitary sewer and storm services. The Subject Lands, as described above are well suited to such intensification. Further, the Wellington County Municipal Comprehensive Review of the OP indicates infilling is a significant source of future housing in Wellington County through to 2051.

25It is the opinion of Mr. White that Variances and proposed lot creation meet balance between growth and heritage preservation, taking into consideration the mixture of land use and housing types in the neighborhood of the Subject Lands.

Does the variance maintain the general intent and purpose of the zoning by-law?

26The uncontested opinion of Mr. White is that the Variances would allow for the creation of a lot nearly wide enough to satisfy frontage requirements of the ZBL, preventing a negative impact on the general intent and purpose of the ZBL.

27Regarding the Variances regarding lot area, the deficiency results from a lack of depth of the lot, not width. The result is that the from the street, homes on both the proposed retained and severed lots will have the appearance of detached dwellings on reasonably wide lots with appropriate building setbacks.

28Further, applying a rigid approach to lot area, frontage and coverage would be at the expense of providing a compatible infill opportunity in a mixed-use area.

Is the variance desirable for the appropriate development or use of the land?

29The loss of area for the retained lot created as a result of severance would be minimally impacted by loss of outdoor space. The depth of the Subject Lands increases from 15 meters from the east lot line to 27 meters on the west. The lot created by the severance would have enough depth to meet yard and coverage regulations of the ZBL other than frontage and area.

30Further, as previously stated, the proposed additional home created as a result of the Variances will aid the Town in its direction for growth as discussed in the OP. Municipal water and sanitary sewer services are available and can be provided to the proposed lot, and storm water can be managed on-site with connection available to existing storm water on Gowrie Street South.

Is the variance minor?

31The uncontested opinion of Mr. White is that the Variances required to create the proposed severed and retained lots vary in degree in that a numerically large lot area variance is needed on the proposed severed lot, while the variances related to lot area, coverage and frontage are numerically small. The reason for inconsistency with the ZBL is related to the Heritage Overlay.

32The Heritage Overlay on the Subject Lands imposes regulations requiring wider and larger lots with increased setbacks than other lots zoned R1-B. The lands surrounding the Subject Lands contain a mixture of older and new homes and commercial and institutional land uses on a range of lot sizes in the area.

33The effect of the Variances would allow for the creation of homes on wider parcels so from the street both lots will appear to be on wider parcels, as encouraged by applicable zoning and consistent with the character of the area.

CONCLUSION

34The Tribunal accepts the evidence of Mr. White and find that the Variances meet the requirements of s. 45(1) of the Act.

35The Tribunal also accepts the recommendation of Mr. White to tie the approval of the variances to References Plan 16R-22268 as set out in Exhibit 3.

36The Tribunal further advises the County of Wellington that the proposal as set out in the Exhibit 3 reference plan, meets condition 10 of the Exhibit 2 Provisional Consent.

ORDER

37THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Zoning By-Law 2009-045 are authorized.

“S. Mann”

S. MANN 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.