JEG Home Solutions Inc. v. St. Thomas (City), 2023 CanLII 123752

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 29, 2023

CASE NO(S).: OLT-22-004290

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

Applicant/Appellant: JEG Home Solutions Inc.

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

Description: To facilitate the development of 6 townhouse units

Reference Number: 2-05-22

Property Address: 30 South Edgeware Road

Municipality/UT: City of St. Thomas

OLT Case No: OLT-22-004290

OLT Lead Case No: OLT-22-003499

OLT Case Name: JEG Home Solutions Inc. v. St. Thomas (City)

Heard: October 4, 5 and 6, 2023 by video hearing and written submissions on October 27, 2023

APPEARANCES:

Parties

Counsel

JEG Home Solutions Inc.

Amy Dale

City of St. Thomas

Analee Baroudi

George Dean

Philip Morrissey

DECISION DELIVERED BY T.F. NG AND INTERIM ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION

1This matter pertains to an appeal by JEG Home Solutions Inc. (“Appellant”) pursuant to section 34(11) of the Planning Act.

2The City of St. Thomas (“City”) refused the Appellant’s Zoning By-law Amendment (“ZBA”) for a development proposal for two blocks of street townhouses with a maximum of three dwelling units on each block. The blocks were previously created through provisional consents approved by the City.

3George Dean was granted party status to the ZBA appeal at a previous case management conference.

4The Appellant called its principal, Alan Patten, to the witness stand, its land use planner, Casey Kulchycki, as expert witness, and summoned Jim McCoomb, a planner employed by the City.

5The City did not call any witness but opposed the appeal through submissions.

6Mr. Dean took the stand and he called a land use planner, William Pol, to oppose the appeal. The participant’s statement of Mila Powers was duly considered.

7The Tribunal qualified the experts in their discipline of land use planning. The Joint Document Book was marked as Exhibit 1 and the Agreed Statement of Facts was marked as Exhibit 2.

SITE CONTEXT

8The subject lands are known municipally as 30 South Edgeware Road in the City, of approximately 4,437 square metres (47,757 square feet) in area and have frontage along South Edgeware, a minor arterial roadway, and along Woodworth Crescent. The subject lands are generally rectangular in shape.

9There is a two-storey single detached dwelling on the subject lands, accessed by a U-shaped driveway from South Edgeware Road. The balance of the subject lands is landscaped.

10The immediate area comprises single detached dwellings, with some multi-unit dwellings (duplexes, triplexes and fourplexes) south of South Edgeware Road. Two institutional uses (Locke’s Public School and Monsignor Morrison Catholic School) are located west of the subject lands along South Edgeware Road. Limited light industrial and commercial uses are located to the east of the subject lands along South Edgeware Road.

11The subject lands are within the "Residential" land use designation in the City Official Plan (“OP”). This designation permits the full range of low, medium and high-density residential uses.

12Public transit is offered by the City with its #1 route along South Edgeware Road, with stops located at the intersection of South Edgeware Road and Woodsworth Crescent.

13The subject lands are also located proximate to several public parks and recreational facilities including: Dalewood Conservation Area, Waterworks Park (splashpad, playground and disc golf provided), Woodhaven Park, Locke’s Public School and Monsignor Morrison Catholic School (playgrounds, open fields, baseball diamonds).

14The subject lands are currently zoned "First Residential Zone (R1)" in the City Zoning By-Law. This zone permits a range of residential and community facility uses on the subject lands. Permitted uses in the R1 zone include: single detached dwelling, church, home occupation, nursing home, provincial group home, residential care home and uses accessory to the foregoing.

Zoning By-law Amendment

15The proposed development consists of six townhouse units, split into two three-unit blocks, with one block on each of the newly created parcels. The existing single detached dwelling will remain on the retained parcel. Parking is provided for the townhouses by private attached garages and private driveways (two spaces per unit).

16The ZBA proposed to rezone the subject lands from the "First Residential Zone (R1)" to a site-specific "Third Residential Zone (R3-_").

17A site-specific Zoning By-Law Amendment (R3-117) was recommended by staff with the following special provisions to facilitate the development:

a) Maximum lot coverage of 43%;

b) Minimum rear yard depth of 7 metres ("m");

c) Notwithstanding the provisions of Subsection 1.46(ii), the front lot line for a corner lot within this zone shall be considered the lot line along Woodworth Crescent; and

d) The provisions of Items No. 5 and 10 to Column (6) of Table 1 to Subsection 7.4 shall not apply to the area affected.

Issue

1. Whether the proposed development is compatible with the character of the surrounding area, represents good planning and in the public interest?

18At the outset there were claims that expertise of the experts could be unequal. Mr. Pol is very experienced and, as such his expert opinion should be weightier, Mr. Dean's counsel claimed. Nevertheless, every matter is looked at in its particular circumstances. The Tribunal qualified experts Mr. McCoomb and Mr. Kulchycki in land use planning matters. These latter two experts’ opinion evidence is given due weight as required.

19In the case of Mr. Kulchycki, the Zelinka Priamo Ltd.’s report that he endorses, was not authored by him but by others. Nonetheless, this does not mean that his evidence will be discounted or given less weight.

20The Zelinka Priamo Ltd.'s report was authored by two individuals of the firm. The Tribunal is not concerned with the historical matter of how the report came about. The matter to keep in mind is that Mr. Kulchycki visited the subject lands, reviewed and endorsed the report. Thereafter he gave his expert opinion and testimony at the Tribunal Hearing. The Tribunal therefore accepts his opinion on the ZBA and also his expertise as a registered professional planner.

21Mr. McCoomb, the city planner, is a planner in his own right. The City’s methodology in accepting the developer’s planner’s report and the views therein as a basis of Mr. McCoomb’s analysis does not in any way compromise his planning opinion. Mr. McCoomb is an experienced and qualified land use planner with the City, therefore his opinion is acceptable to the Tribunal.

22In the matter of the traffic impact assessment (TIA), the Parties have agreed to the document in the Agreed Statement of Facts. Implicitly, Parties admit the TIA and the document has been examined and cross-examined upon at the Tribunal Hearing. Although the author of the report was not called, by virtue of the examination and cross-examination, the document is admissible by consent of the Parties. Thus, the Tribunal is entitled to refer to and review that document.

23However, even if the TIA is excluded, the Tribunal acknowledges that the traffic condition in the area has existed for at least a decade (as related by Mr. Dean).

24Mr. Dean testified that the school has increased in size and student population. More modular classrooms/portables have been set up. To the Tribunal, this means the traffic condition will exist now and in the future.

25There is anecdotal evidence that a safety zone had been established many years ago, in view of the traffic concerns in the community.

26On the community’s proposal for four single family dwellings to be built on subject lands, resulting in only four driveways (instead of the six driveways of the Appellant’s proposal), in the Tribunal’s view, there is no evidence that the traffic situation is alleviated by the fact that there will be two less driveways than the proposal by the Appellant.

27The Tribunal has carefully taken into consideration council’s decision, information, material and the documents pertaining to the appeal. The Tribunal acknowledges that the council had traffic concerns, scale of development concerns and regard to the community’s comments and opposition.

28The Tribunal notes that safety concerns have been addressed by the community itself in establishing the safety zone with speed reduction, flashing lights and signage. There was no evidence presented that the development would cause significant increase in the traffic at the South Edgeware Road and Woodworth Crescent. The TIA had indicated that the roads were operating well within their potential capacity at the time of study. Despite the fact that the study was based on traffic counts data of 2016/2017, there is no contrary indication that the road capacity is any different currently.

29There is no empirical traffic evidence provided to the Tribunal that the proposed development will create greater congestion to the roads, apart from the anecdotal evidence by Mr. Dean in his testimony.

30The Tribunal finds that traffic and safety concerns have been appropriately addressed by the TIA. Even if the TIA is excluded, the Tribunal concludes that the proposed development will not significantly impact the existing traffic condition.

31Whether the proposed development is taken up or not, the school pickups and let off times during the school peak time periods will be a regular feature. Parking at the side of the road and off road are matters that the City will need to regulate. Enforcement of traffic and parking are ultimately the responsibility of the City.

32As for the scale of development, the underutilized subject lands can accommodate the six units dwelling that is proposed.

33Another matter for the City is with respect to the trees. Unauthorized cutting down of trees, if that occurs, will be a matter of enforcement by the City. Measures could be taken and trees replanting could be demanded by the City to replace the cut down trees.

34On the matter of strong opposition by the community to the proposal, the Tribunal is guided by the policies in the Provincial Policy Statement, 2020 (“PPS”) and in the OP. Development opposition and large numbers that oppose are not the tests for a planning matter. Conversely, even if neighbours agree to a particular development, it does not necessarily mean that a tribunal will approve that development if it turns out to be bad planning.

35Therefore, the Tribunal will evaluate the proposed development based on consistency with the PPS and conformity with the OP.

FINDINGS

36The Tribunal finds that the TIA dated April 14, 2021, concluded that:

both South Edgeware Road and Dalewood Drive are currently operating well within capacity. Thus, there are frequent gaps in the traffic flow to permit turning movements to and from both streets. The addition of the small volume of site generated trips would have no measurable impact on the operation of the two streets. In total, traffic accessing South Edgeware Road and Dalewood Drive to and from Woodworth Crescent would be able to do so in safety and with minimal delays.

37The proposed development is estimated to add three vehicle trips to the intersection of South Edgeware Road and Woodworth Crescent in the morning peak hour and four vehicle trips to the intersection in the afternoon peak hour. The Tribunal finds that this will have no measurable impact on Woodworth Crescent that fronts the proposed development.

38Mr. Dean’s anecdotal evidence of the school peak period pick ups and let off traffic congestion, with photographs of the first and second day of start of school, are of limited assistance for the purpose of ascertaining the true extent of such traffic and safety concerns. The photographs show the peak morning and afternoon school period. There is no empirical evidence of a relevant traffic study by Mr. Dean on the impact of traffic at the relevant roads. There is further no evidence from Mr. Dean that the proposed development’s potential traffic trips will contribute additional congestion to the roads/intersection. In fact, Mr. Dean has clarified that the traffic condition has been existing for many years and safety concerns have resulted in the creation of a safety zone for managing the traffic situation. The Tribunal finds that there is no evidence provided by Mr. Dean or his experts to demonstrate that the proposed development would adversely add to the traffic situation.

39Oral testimony alluded to the black walnut tree being removed with a permit as required. Further, a Norway Spruce on public land was removed without authority. Mr. Dean had contended that this removal and possibly other tree removals on the subject lands will disentitle the Appellant from developing its property as proposed. Mr. Dean stated that the principal of the Appellant, Mr. Patten, had neglected the property for two years in failing to maintain and upkeep the subject lands in a more acceptable standard, as viewed by Mr. Dean, the opposite neighbour. The primary complaint was that Mr. Patten only mowed the land about every six weeks. Hence, he was not an owner who cares about the condition of the subject lands and could not then be trusted to develop the property to protect and enhance the neighbourhood.

40Mr. Patten had testified that he was motivated to develop the subject lands for rental to seniors. Thus, the design of a one level building for easy access of his target group. He acknowledged the trees cutting, he claimed he has a permit(s) to cut, as one tree was diseased and/or one tree was in the way of an intended garage. The arborist report stated that the foundation of one of the Townhouses may impact the Norway Spruce, which impact may be considered at site plan approval.

41The Tribunal finds that Mr. Patten’s motivation to develop rental units for seniors and alleged neglect of upkeep of the property are irrelevant. The fact is that zoning is not for a demographic. The proposal to rezone needs only to satisfy the Provincial and policy requirements for compatibility, good planning and public interest. This is to say that the rentals can be to all potential residents and not only seniors.

42The Tribunal finds too that the alternative proposal of four single family dwellings, as suggested by Mr. Dean, cannot be the subject of evaluation, since that is not a proposal properly placed before the Tribunal. The Appellant’s appeal relates to the ZBA that is for adjudication by this Tribunal.

43With respect to the proposed development and the ZBA, the Tribunal agrees with and prefers the opinion evidence of Mr. Kulchycki and Mr. McCoomb. Mr. Pol’s contrary opinion, that the proposed development is not consistent with the PPS and non-conforming with the OP, does not persuade the Tribunal.

44Mr. Pol’s opinion is that the forms of land use are not appropriate for the location. The requested exceptions are not necessary for the development of the lands. It does not maintain or improve the present quality of the neighborhood. The amendment is not appropriate for the redevelopment of the lot and contrary to sound land use planning. The ZBA does not represent good planning and is not compatible with the character of the surrounding residential lands. It is not appropriate for the lot as the proposed buildings are too large, with insufficient landscape area and increased paved area. The Tribunal disagrees with Mr. Pol.

Provincial Policy Statement (PPS)

45Both Mr. Kulchycki and Mr. McCoomb opined that the proposed development and the ZBA are consistent with PPS section 1.0, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4 and 1.4. The Tribunal agrees that the proposal would provide a mix of housing and residential types and minimize land consumption costs.

46The Tribunal finds that the proposed development is within an existing built-up area while utilizing the existing municipal infrastructure. The townhouse form, though uncommon in the area, is close to two educational institutions and community facilities. This medium-density housing promotes intensification along transportation corridors and alternative modes of transportation, other than vehicles.

47The Tribunal concurs with Mr. Kulchycki that the proposed ZBA promotes a compatible form, that is a building of one storey in height, comparable to the surrounding properties. The Appellant’s supporting studies for the proposal did not identify any risks to public health and safety. Further, there would be no adverse impacts to adjacent lands.

48The Tribunal finds that the conceptual building elevations demonstrate a well thought out design that would complement the surrounding homes and contribute to the streetscape in a positive way.

City of St. Thomas Official Plan (OP)

49Both Mr. Kulchycki and Mr. McCoomb provided expert opinion evidence that the proposed development and the ZBA complied with the OP, including the goals for residential development set out in section 5.1.2, the Medium Density Residential policies set out in section 5.1.3.3, the redevelopment and infill development policies found in section 5.1.3.6, including the requirement for pre-consultation with the Municipality.

50Section 4.3.6 of the OP requires Council to recognize the importance of protecting and strengthening neighbourhoods. The subject lands’ portions to be developed are currently vacant. The Tribunal finds that the proposed townhouses form introduces a higher-density form of housing. This offers an opportunity for aging in place when a local resident downsizes. It is a provincial policy goal to offer a mix of housing options in all neighbourhoods. The proposed development will strengthen the neighbourhood by offering a compatible mix of housing for residents to continue living in the neighbourhood.

51The Tribunal agrees with Mr. Kulchycki that the proposed development is not over-intensification. The proposed development provides a density increase that is in the lower range (31 units per hectare [“uph”]) of the Medium Density Residential density range (30-75 uph). The streetscape along Woodworth Crescent is improved by the well-designed built form.

52The Tribunal finds that the proposed townhouses represent intensification at a scale that better integrates into the streetscape, as compared to large cluster development. It transitions from a higher order street to a low-density residential neighbourhood. The Tribunal acknowledges that as the City grows, higher forms of housing should be integrated into existing neighbourhoods close to the higher order streets. The proposed development fronts onto Woodworth Crescent that accesses South Edgeware Road, which conforms to the access policy of the OP.

53Mr. Kulchycki opined that the proposed townhouses’ height is consistent with the one storey to one and a half storeys and two storey height of the area and will present a uniform streetscape. Though the townhouses are sited closer to Woodworth Crescent, the proposal will fill the gap in the streetscape leading from Woodworth to South Edgeware Road. The streetscape pattern will include new street tree plantings that will frame the streetscape. Mr. McCoomb’s opinion was that the closeness of the townhouses to the street would promote a pedestrian friendly streetscape presence.

54Mr. Kulchycki opined that the minor site-specific regulations for increased coverage and reduced rear yard are minor deviations from the standard regulations and are supportable since the development is able to provide residents the appropriate amenities and services for townhouse development.

55Mr. McCoomb opined that the proposal was in conformity with the “Housing” policies in the OP, in particular section 6.2.12. The proposed development is an example of redevelopment to minimize land consumption, reduce servicing costs and lower the costs of housing. Mr. McCoomb in cross-examination stated, “I don’t believe there’re adverse impacts, no height, no shadowing, no noise impact, as it’s a residential built form in a residential neighbourhood”.

Rezoning R1 to R3

56The R3 zone generally permits higher forms of housing and increased density given the subject lands adjacency to an arterial roadway (South Edgeware Road). Both Mr. McCoomb and Mr. Kulchycki were of the opinion that the proposed townhouses, permitted in the R3 zone, represent a gentle increase in density and transition from the higher order street to the low density uses in the interior of the neighbourhood.

57Both Mr. Kulchycki and Mr. McCoomb opined that the R3 provisions for lot coverage, rear yard and front lot line definition are appropriate for the proposed development.

58The Tribunal agrees that the site-specific regulations for lot coverage and rear yard setbacks are minor deviations from the standard R3 regulations. The proposed lot coverage increase of 3% (to 43% from 40%) and the reduction of the rear yard depth by 2 m (to 7 m from 9 m) are appropriate. Adequate private amenity spaces to the rear of the units and required landscape open space regulation are met.

59The Tribunal finds that the proposed development is appropriate and represents good planning, as:

a) the subject lands are adjacent to an arterial roadway, where higher density housing forms are preferentially located;

b) the proposed medium density is consonant with a gentle increase in density housing in the area;

c) the underutilized subject lands make efficient use of the municipal infrastructure;

d) the public transit and bike lane along South Edgeware Road encourage alternative modes of transportation; and

e) the subject lands are close to open spaces, parklands, schools and institutional and community facilities.

The Tribunal finds that the subject lands’ location is suited for the proposed townhouse development.

Compatibility

60The proposed development is well-designed, with attached garages, private outdoor recreation spaces and a street facing one-storey appearance. It is architecturally different from the single and 1.5 storey dwellings on Woodworth Crescent on large lots but can be considered compatible since it will enhance the neighbourhood and coexist without any undue adverse impact on adjacent properties.

61Mr. McCoomb and Mr. Kulchycki both opined that the proposed development would promote a pedestrian friendly streetscape. The proposed townhouses are built closer to the road, are of similar height and scale to properties in the neighbourhood and appear as storey homes. There is access to parks and schools, access to all of the required services, adequate parking and adequate buffering.

No Site Plan Approval

62The Tribunal can address matters of privacy, screening and appropriate landscaping as a condition of approval of the ZBA. As an aside, the City and the Appellant are advised to put a development agreement in place.

Precedent

63The Tribunal notes that approval of this application does not automatically lead to the approval of other ZBA applications in this area, as every application would be decided on its own merits.

Density

64The Tribunal finds that the proposed development would result in an increase in density, but the increase is at the low end of the densities in the R3 zone. The proposed development of rental residential townhouses is an appropriate intensification of the subject lands.

Conclusion

65The Tribunal concludes that the ZBA application is appropriate, consistent with the PPS and conforms to the OP.

66Section 2 of the Act requires the Tribunal to have regard for matters of provincial interest, in particular section 2(h) the orderly development of safe and healthy communities; section 2(j) the adequate provision of a full range of housing, including affordable housing; section 2(p) the appropriate location of growth and development; section 2(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; and section 2(r) the promotion of built form that (i) is well designed and (ii) encourages a sense of place. The Tribunal finds that the proposed development has regard for these matters.

67The proposed development is compatible with the character of the surrounding area, represents good planning and is in the public interest. Section 5.1.3.6 of the OP provides policy direction on redevelopment and infill development. New residential development may occur where:

i) zoning by-law provisions shall ensure that redevelopment/infill housing projects recognize the scale of adjacent land uses and enhance the character of the area, […]

iii) redevelopment/infill housing should be sensitive to the height, scale and architectural design of buildings in the surrounding neighborhood, iv) redevelopment/infill housing should be sensitive to the continuity of the residential streetscape, and […] vii) redevelopment/infill projects requiring an amendment to the zoning by-law will require the submission of a planning analysis to determine the appropriateness of the proposed development and to identify ways of mitigating any potential adverse impacts on surrounding uses. […] The planning analysis […] will be evaluated on the basis of […]: a) compatibility of the proposed use with surrounding land use.

68The Tribunal finds that the proposed development is cognizant of the residential built forms of adjacent single storey to two storey buildings. The conceptual drawings show that the one storey height presented and well-designed building form is sensitive to the low rooflines of the neighbourhood. From the Woodworth Crescent perspective, it continues the one to two storey residential streetscape and enhances the character of the area. The Tribunal reiterates that compatibility with the character of a neighbourhood does not mean the “same” or even “similar”. The element to consider is whether the proposed development can coexist harmoniously, without adverse impact on the area. The Tribunal finds that for the above reasons, the proposed development of townhouses can coexist and is compatible with the area, as there is no evidence of any adverse impact on adjacent residential use properties.

69The Tribunal will grant the appeal but directs that the City amends the draft ZBA to include reasonable conditions on landscaping, tree replacements/replantings, screening and buffering. Section 34(26) (b) of the Act authorizes the Tribunal to amend the by-law in such manner as the Tribunal may determine or direct council of the municipality to amend the by-law in accordance with the Tribunal’s order.

INTERIM ORDER

70The Tribunal orders that the appeal be allowed in part, subject to the following:

1. The Draft Zoning By-law Amendment marked as Tab 1 in Exhibit 1 is provisionally approved subject to the Municipality of the City of St. Thomas stipulations of landscaping, tree replacements/replantings, screening and buffering conditions to the draft zoning by-law.

2. The Municipality of the City of St. Thomas is directed to amend by-law 50-58 as ordered on a site-specific basis with respect to JEG Home Solutions Inc.’s Zoning By-law Amendment.

3. Upon the City solicitor’s confirmation that the final draft Zoning By-law Amendment is to the City’s satisfaction, it shall be forwarded to the Tribunal for approval and issuance of Final Order.

4. Parties shall revert on the status of the final draft Zoning By-law Amendment within three months of this order.

5. In the event of issues arising from implementing the order, the Tribunal may be spoken to.

“T.F. Ng”

T.F. NG

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.