Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 24, 2023

CASE NO(S).: OLT-22-004563

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

Applicant/Appellant: Francesco Grotolla & Victor Pietrangelo

Subject: Minor Variance

Description: To permit reduced rear yard requirement for retained parcel following consent

Municipal Reference Number: D13-16-2022

Property Address: 2292 Centre Street

Municipality: City of Thorold/Niagara

OLT Case No.: OLT-22-004563

OLT Lead Case No.: OLT-22-004563

OLT Case Name: Grotolla & Pietrangelo v. Thorold (City)

Heard: February 8, 2023, by video hearing

APPEARANCES:

Parties Francesco Grotolla and Victor Pietrangelo (“Applicants/Appellants”) City of Thorold (“City”)

Counsel Robert Di Lallo Was not represented

MEMORANDUM OF AN ORAL DECISION DELIVERED FeBRUARY 8, 2023 BY J-P. BLAIS AND BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal involved an appeal from a refusal by the City of a Minor Variance application brought pursuant to s. 45(12) of the Planning Act (“Act”) with respect to a property known municipally as 2292 Centre Street in the City of Thorold (“Subject Property”).

2The Applicants/Appellants sought one variance to the applicable zoning by-law, namely the reduction of the minimum rear yard setback requirement of 7.5 metres to 3.1 metres.

3Concurrently with this Minor Variance application, and as part of an overall development proposal, the Applicants/Appellants had also filed with the City a Consent application proposing to sever the Subject Property. The City’s Committee of Adjustment approved the Consent application, subject to conditions, at its meeting of July 21, 2022. Although the approved Consent application was not before the Tribunal, one of the conditions required the demonstration of compliance, through minor variance, zoning by-law amendment or other means, with the minimum rear yard setback required pursuant to the City’s By-Law 2140(97) (“ZBL”).

4The Minor Variance application is solely with respect to the retained parcel. The new provisionally created lot requires no minor variance approvals. However, the severance would result in the provisionally created rear boundary of the retained lot being too close to the existing dwelling.

5The Notice of a Hearing Event was given administratively by the Tribunal. No other person sought Party or Participant status.

6No counsel appeared at the hearing for the City. Although the matter was not contested, the Tribunal nevertheless had to be satisfied that the application satisfied all legislative tests.

EVIDENCE

7The Applicants/Appellants called Mr. Craig A. Rohe as an expert witness. He had been retained by the Applicants/Appellants in this matter. The Applicants/Appellants also summoned Ms. Juliane von Westerholt as an expert witness. She is the City’s outside planning consultant and has knowledge of the application. The Applicants/Appellants’ Document Brief was entered into Evidence as Exhibit 1. It included the reports prepared by both Mr. Rohe and Ms. von Westerholt.

8Both Mr. Rohe and Ms. von Westerholt were qualified by the Tribunal to provide opinion evidence as experts in land use planning and gave extensive and uncontested evidence evaluating the application for a minor variance against the relevant public policy and the legislative tests.

Subject Property

9The Subject Property contains a single detached dwelling and is in an established residential neighbourhood. Land uses to the north, south, east and west are single detached dwellings.

10The Subject Property measures approximately 25 metres by 50 metres, and the retained parcel measures approximately 25 metres by 27 metres.

11The Subject Property is within the “Urban Area Boundary” of the Niagara Region Official Plan 2015 (“Regional OP”), is designated “Urban Living Area” under the City’s Official Plan (“City’s OP”) and “Residential First Density Zone (R1A)” under the ZBL.

ANALYSIS

12To succeed, an applicant for authorization of a variance must satisfy the Tribunal that the four tests set out under s. 45 (1) of the Act are met by the application. The four tests require an applicant to satisfy the Tribunal that the variances:

i. Maintain the general intent and purpose of the official plan;

ii. Maintain the general intent and purpose of the zoning by-law;

iii. Are desirable for the appropriate development or use of the land, building, or structure; and

iv. Are minor.

13In addition, as with any decision that involves a planning matter, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act and, in accordance with s. 3(5) of the Act, must determine if the requested variances are consistent with the Provincial Policy Statement 2020 (“PPS 2020”) and conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).

Minor Variance

14The Tribunal found that, based on the extensive and uncontested evidence, the four tests at s. 45(1) of the Act are met and that the appeal should be allowed for the following reasons:

Official Plans and Zoning By-law

15The Tribunal was satisfied that the proposed variance met the general intent and purpose of the City’s OP, the Regional OP and the ZBL.

16The evidence was clear that the general intent and purpose of the designation for urban areas in the City’s OP is to respect the character of stable residential areas and only support applications that are physically compatible with the character of the surrounding neighbourhood. The variance facilitates the proposed development, which is compatible with the existing neighbourhood. Moreover, it allows intensification and infilling in an existing neighbourhood that contains low-rise residential dwellings. Similarly, the Regional OP directs that most of the growth and development to existing urban areas be through intensification and in a manner that promotes the efficient use of existing municipal sewage and water services. In this case, the proposed development, which the variance facilitates, would allow for such an intensification in a geographical area that is fully serviced.

17With respect to the ZBL, the proposed reduction in rear yard setback recognizes an existing dwelling location. The intent and purpose of the minimum rear yard setback provision is to ensure adequate physical spacing is provided for outdoor amenities and physical spacing between dwellings. Even with the proposed variance taken into consideration, sufficient lot area exists on the Subject Property to provide amenity space and landscaping, to accommodate a driveway, to provide appropriate access to the rear yard, and to allow for adequate space for drainage. No negative impacts to the Subject Property or adjacent properties are anticipated, including to the functionality of existing roads. The retained parcel of the Subject Property is otherwise in conformity with the ZBL.

Desirable

18The Tribunal agreed with the experts that the variance is desirable for the appropriate development of the Subject Property. The proposed setback will ensure that the existing dwelling maintains a sufficient setback from the rear property line and recognizes the existing building location. The application, seen in the context of the overall development, will contribute to intensification within a settlement area and will ensure the retention of an existing dwelling in an existing neighbourhood.

Variance is Minor

19The Tribunal was satisfied that the variance is minor and will not cause any adverse impacts on the residents of the abutting properties and the neighbourhood in general.

20The variance only relates to a small portion of the existing dwelling. The insufficient rear yard setback is due to the location of an existing mudroom addition to that dwelling. Most of the rear wall of the existing dwelling is largely situated 7.5 metres from the lot line and therefore conforms with the required setback requirement under the ZBL.

Relevant Planning Policy

21The variance requested is local in nature. Nevertheless, in their evidence, both Mr. Rohe and Ms. von Westerholt analyzed matters of provincial interests as outlined in s. 2 of the Act, the Regional OP, the City’s OP, the PPS 2020, and the Growth Plan as these policy statements and documents relate to the matter before the Tribunal. They agreed that the proposed minor variance had regard to the matters of provincial interest, as well as both the Regional OP and the City’s OP.

22Moreover, they opined that the proposed minor variance was consistent with the PPS 2020 and conformed to the Growth Plan. In this regard, they noted that the application was for a minor variance for an existing dwelling. As the dwelling would continue to be a detached dwelling, there was no significant change to the density or form of the established residential neighbourhood. Approval of the Minor Variance itself will have negligible impact on waste collection services and on the use of other municipal services and utilities. Approval of the Minor Variance, to the extent that it supports an overall development proposal, contributes to an opportune infill development. Furthermore, it indirectly contributes to the orderly and efficient development of an additional adjacent single detached dwelling in keeping with the neighbourhood. It facilitates the extension of an existing development pattern within a settlement area while contributing to intensification goals at both the regional and municipal levels.

23The Tribunal accepted the uncontested evidence of both expert witnesses and found that the proposed variance meets all the relevant policy tests, including those of the PPS 2020, the Growth Plan, the Regional OP and the City’s OP. It represents good land use planning.

24Although the City did not appear, through Counsel for the Appellants/Applicants, the Tribunal was made aware of a letter dated January 24, 2023, from the City, which was marked as Exhibit 2. In that letter, Counsel for the City wished one “housekeeping” matter to be addressed, namely that the proposed variance be approved “for the purpose of recognizing the location of the existing dwelling only; and that the variance not extend to the redevelopment of the lot”. The Applicants/Appellants took no issue with this wording.

25The Tribunal acknowledges the City’s request for this clarification. However, the Tribunal will not make an Order to that effect as it would alter the nature of the Minor Variance application by imposing a condition on the proposed variance. Rather, the Tribunal notes the City’s request and the Applicants/Appellants’ agreement to same.

ORDER

26THE TRIBUNAL ORDERS that the appeal is allowed and the variance to the City of Thorold By-law 2140 (97) is authorized.

“J-P Blais”

J-P. BLAIS MEMBER

“Bita M. Rajaee”

BITA M. RAJAEE 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.