Holland Homes Inc. v. Oshawa (City), 2023 CanLII 21655

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 15, 2023

CASE NO(S).: OLT-22-004530

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

Applicant and Appellant: Holland Homes Inc.

Subject: Minor Variance

Description: To permit a maximum height of 10.4 m (34.1 ft) for 11 proposed single detached dwellings on the South side of the Queensdale Avenue future extension

Reference Number: A-2022-71

Property Address: 0 Queensdale Avenue

Municipality/UT: Oshawa/Durham

OLT Case No.: OLT-22-004530

OLT Lead Case No.: OLT-22-004530

OLT Case Name: Holland Homes Inc. v. Oshawa (City)

Heard: February 13, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Holland Homes Inc.

Zachary Fleisher

City of Oshawa

Did not appear

Memorandum of Oral DECISION DELIVERED BY Kurtis Smith AND BITA M. Rajaee On february 13, 2023 and ORDER OF THE TRIBUNAL

Introduction

1This Hearing took place on February 13, 2023, to consider the Appeal by Holland Homes Inc. (the “Applicant”) under s. 45(12) of the Planning Act due to the City of Oshawa’s (the “City”) Committee of Adjustment’s (the “COA”) decision to deny the minor variance application request in relation to Zoning By-law 60-94 (the “ZBL”).

2The Application pertains to lands municipally known as 0 Queensdale Avenue, in the City (“Subject Property”), in the Regional Municipality of Durham (“Region”).

3The Application was heard by the COA on August 24, 2022, and considered the following requested variance:

i. To permit a maximum height of 10.4 metres (“m”) for 11 single detached dwellings on the south side of Queensdale Avenue future extension, whereas Zoning By-law 60-94 permits a maximum height of 9.0 m for a single detached dwelling in a R1-E “h-14” (Residential) Zone.

4For the COA meeting on August 24, 2022, the City’s Development Services Department made the following recommendation, in the report dated August 19, 2022 for the COA’s consideration:

The proposed increase in maximum building height from 9 m to 10.4 m would allow for a useable third-storey for each single detached dwelling. The proposed height is consistent with special zoning regulations that have been approved in many new subdivisions in the City. Most new subdivisions are approved with zoning that permits heights of 10.5 m (34.4 ft.) to 11.5 m (37.7 ft.). The proposed increase in building height to 10.4 m is not anticipated to create any additional impacts to neighbouring properties beyond what would normally be associated with a new single detached dwelling on a neighbouring property. The applicant proposes to comply with all other requirements of the R1-E Zone as required by Zoning By-law 60-94, including the minimum rear yard depth requirement of 7.5 m (24.6 ft.). This Department has no objection to the approval of the application.

5The COA denied the Application based on the following reasoning:

i. The Committee is of the opinion that the variance is not minor.

ii. The Committee is of the opinion that the granting of the variance would not maintain the general intent and purpose of the Official Plan.

iii. The Committee is of the opinion that the granting of the variance would not maintain the general intent and purpose of the Zoning By-law.

iv. The Committee is of the opinion that the granting of the variance would not contribute to the proper and orderly development of the municipality.

v. The Committee is of the opinion that the granting of the variance is not desirable for the appropriate development of the subject property.

6The Applicant then appealed the decision of the COA to the Ontario Land Tribunal (“OLT”).

Legislative Framework

7An appeal pursuant to s.45 of the Planning Act (“Act”) is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. These tests are that the variance:

i. maintains the general intent and purpose of the Official Plan;

ii. maintains the general intent and purpose of the Zoning By-law;

iii. is minor in nature; and

iv. is desirable for the appropriate development or use of the land, building or structure.

8Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with, or not conflict with, A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

Exhibits

9The following Exhibits were marked at the Hearing:

i. Exhibit 1: Applicant’s Document Book

ii. Exhibit 2: Witness Statement of Stephen Bedford

Planning Evidence

10Prior to the commencement of the Hearing, the Tribunal was made aware that the City did not oppose this Application and would not be appearing.

11The Applicant presented one witness to the Tribunal in support of its position. Mr. Stephen Bedford is a registered professional planner, a member of the Ontario Professional Planners Institute, with over 50 years of experience in the field. He was qualified to give land use planning expert opinion evidence pertaining to the matter that was before the Tribunal.

12The Subject Property is currently vacant and is part of Draft Plan of Subdivision S-O-2016-06. Draft plan of subdivision S-O-2016-06 and a related Zoning By-law Amendment to implement the proposed draft plan were approved by City Council in 2017. The Draft Plan of Subdivision included the proposed Queensdale Avenue extension, 11 single detached dwelling lots on the South side of Queensdale Avenue, six single detached dwelling lots on the North site of Queensdale Avenue, and a future development block fronting onto King Street East.

13Mr. Bedford informed the Tribunal the lands to the North of the subject property, the six single detached dwelling lots and the future development block are now planned to be developed as a townhouse block and are subject to an OLT appeal.

14The Application before the Tribunal today only relates to the 11 proposed single detached lots on the South side of the Queensdale Avenue extension. The proposed Application will permit the construction of 11 three-storey dwellings which will increase the amount of usable floor space on the third floor.

Provincial Policy statement 2020 AND The Growth Plan FOR THE GREATER GOLDEN HORSESHOE 2020 (“GROWTH PLAN”)

15Mr. Bedford gave evidence that the proposed Application is consistent with the PPS, including s.1.1.1, s.1.1.3.1, s.1.1.3.2, s.1.1.3.3, s.1.1.3.4, s.1.4.1, and s.1.4.3.

16In Mr. Bedford’s opinion the Application implements the policies and general direction provided for in the PPS. The development and proposed minor variance, if approved would permit a development of 11 single detached dwellings within the existing built-up area, which is compatible with adjacent uses and built form, utilizes existing infrastructure and services, and avoids and mitigates risks to public health and safety.

17In Mr. Bedford’s opinion, the development conforms to the Growth Plan and specifically to s. 2.2.1.2, s.2.2.1.4, s.2.2.2.1, and s.2.2.6. If the minor variance is approved, it allows for a development that implements a redevelopment within the settlement area and delineated built-up area, which is currently serviced by existing municipal infrastructure and services. The proposed built form provides an additional alternative to the existing built form in the neighbourhood and is an appropriate type and scale in the context of the surrounding area and dwellings.

Durham Region Official Plan (the “ROP”)

18Mr. Bedford testified that the proposed development will result in more housing within the Urban Area for the Region of Durham where existing services and community facilities are available.

19Moreover, he stated that the proposed development will contribute to regional targets for housing growth and intensification, and will contribute to the range and variety of housing sizes and types within the existing housing stock.

20The proposed development will enable easy access to King Street East, a Regional Corridor, providing easy road access to the balance of the City and Region.

21It was the opinion of Mr. Bedford that the proposed height variance maintains the general intent and purpose of the ROP.

City of Oshawa Official Plan (the “OOP”)

22The Subject Property is designated as residential in the OOP. The general intent and purpose of the residential designation is to ensure that the City has an adequate supply and variety of housing types.

23The Proposed Development will maintain the intent of S.6.1.1 of the OOP by introducing three-storey single detached dwellings to the neighbourhood and contributing to the range of available housing sizes to meet the current and future needs of the City.

24The Proposed Development is defined as residential infill or intensification. Section 6.4.4 of the OOP states:

6.4.4 To ensure compatibility with the character of the surrounding neighbourhood and achieve an appropriate transition to adjacent uses, the design of new residential development in existing residential neighbourhoods shall:

i. Generally respect existing lotting patterns, and preserve and connect open spaces;

ii. Generally respect the continuity of front, rear and side yard setbacks and the continuity of the existing streetscape;

iii. Minimize overshadowing and overlook on adjacent neighbourhoods;

iv. Preserve mature high quality trees and ensure replacement of the tree canopy wherever possible; and

v. Respect the existing scale, massing, height, character and grades of the surrounding area.

25The proposed height variance appropriately responds to the above criteria, as does the proposed development overall.

26In Mr. Bedford’s professional opinion, the application conforms to the OOP.

City of Oshawa ZONING BYLAW 60-94 (the “ZBL”)

27The Subject Property is zoned R1-E which permits single detached dwellings. The proposed dwellings for the Subject Property meet all the regulations of the ZBL except for height. In the ZBL, height is measured from the average grade at the front of the dwelling.

28Mr. Bedford communicated to the Tribunal that the variance would not be needed if the proposed dwellings were designed with flat roofs. The Applicant wishes to construct peaked roofs as they will fit the context of the surrounding neighbourhood.

29The minimum rear yard setback for the R1-E zone is 7.5 m, whereas the proposed dwellings have rear yard setbacks ranging between 11.86 m to 14.96 m. In Mr. Bedford’s opinion, the generous rear yard setback distance further mitigates any impacts of the additional height. In addition, the proposed development will provide a transition in scale from the higher densities being contemplated on the North side of the Queensdale extension.

30In Mr. Bedford’s opinion, the Application maintains the general intent and purpose the of ZBL.

Desirable and appropriate development of the land

31The Subject Property is part of an Approved Draft Plan of Subdivision that conforms to the OOP. Mr. Bedford was of the opinion that the change in height will not change the context of the approved development and as a result continues to be desirable and appropriate for the land. The proposed development will respect and reinforce the residential character of the neighbourhood.

32The minor variance allows for homes with a functional third floor that would be desirable for additional uses for a variety of home-owners.

33In Mr. Bedford’s opinion, the minor variance, and the proposed development it facilitates, is desirable and appropriate for the lands.

Minor In Nature

34Mr. Bedford provided the Tribunal with a series of applications and photos of redeveloped properties near the Subject Property. Generally, the redeveloped properties are modern dwellings and are at an increased height compared to neighbouring properties. The increased height is commonplace throughout the City and reflects modern building standards and the efficient use of land. The additional height is a gradual and sensitive change that is supported by Provincial policy in addition to Official Plan policy.

35In Mr. Bedford’s opinion, the Application will have minimal impact on the surrounding neighbourhood, which does not rise to the level of undue adverse impact. The variance does not create any undue adverse impacts on the streetscape or the adjacent neighbours and will complement the future development to the North. He concluded by stating that the Application is in keeping with the character of the area and results in dwellings that are compatible with the existing development in the neighbourhood.

Conclusionary Opinion

36In Mr. Bedford’s opinion, the application meets the four tests for minor variance. The proposal maintains the general intent and purpose of the ROP, OOP and the ZBL. The application is a desirable use of the lands and is minor in nature.

37Mr. Bedford suggested that, if the Tribunal should so choose, it could consider adding two conditions to the minor variance requested, to mitigate any neighbourhood concerns, namely that:

i. The minimum rear yard setback of any home built on the Subject Property shall be 11.88 m; and

ii. No balconies may be built on the third storey at the rear of the dwelling.

38Additionally, the Applicant indicated that, if the Tribunal should so choose, the minor variance could be reduced from 10.4 m to 10.25 m.

39However, Mr. Bedford also confirmed that his planning opinion remained the same even if no conditions were added to the minor variance and the height remained at 10.4 m. In other words, the minor variance constituted good planning whether or not any conditions were implemented or imposed.

Analysis and findings

40In rendering a decision, the Tribunal must consider the evidence that was presented before it. The Tribunal must also give regard to the decision of the COA and the items presented before the COA including public comments both written and orally submitted.

41Based on the uncontested evidence provided by Mr. Bedford and the City’s planning report, the Tribunal agrees that the proposed minor variance application meets all legislative tests and, in general, represents good land use planning.

42The Tribunal has considered the reduction of the minor variance requested and has determined to maintain the requested height as initially applied for in the Application.

43In regard to the proposed conditions presented by Mr. Bedford at the end of his testimony, the Tribunal determined that it 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. Moreover, the Tribunal determined that the conditions were not necessary as the proposed minor variance met all legislative tests. The Tribunal simply notes the Applicant’s willingness to consider such mitigation measures.

44The Tribunal finds that the uncontested testimony provided by Mr. Bedford has demonstrated that the proposal is consistent with the PPS, conforms with the Growth Plan, the ROP and OOP. The Application maintains the general intent and purpose of the OOP and the ZBL, is an appropriate use of the land and is minor in nature.

ORDER

45The Tribunal Orders that the appeal is allowed and the variance to Zoning By-law 60-94, permitting a maximum height of 10.4 metres for 11 single detached dwellings on the South side of 0 Queensdale Avenue in the City, is authorized.

“Kurtis Smith”

Kurtis SMITH

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.