Mountsteven v. County of Oxford (Municipality), 2023 CanLII 23971

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 2023

CASE NO(S).: OLT-22-003728

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Valarie & Wesley Mountsteven

Subject: Consent – refused by Approval Authority

Description: Application for Consent is to create a residential infill lot on a large lot located within this residential area. The related application for minor variance would allow relief from the lot frontage requirements of the Town Zoning By-law to facilitate the creation of the infill lot

Reference Number: B21-120-6

Property Address: 352 Oxford Avenue

Municipality/UT: Ingersoll/Oxford

OLT Case No.: OLT-22-003728

OLT Lead Case No.: OLT-22-003728

OLT Case Name: Mountsteven v. County of Oxford (Municipality)

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

Applicant/Appellant: Valarie & Wesley Mountsteven

Subject: Minor Variance

Description: Application for Consent is to create a residential infill lot on a large lot located within this residential area. The related application for minor variance would allow relief from the lot frontage requirements of the Town Zoning By-law to facilitate the creation of the infill lot

Reference Number: A21-36-6

Property Address: 352 Oxford Avenue

Municipality/UT: Ingersoll/Oxford

OLT Case No.: OLT-22-003729

OLT Lead Case No.: OLT-22-003728

Heard: September 29, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Valarie and Wesley Mountsteven

Alex Ciccone

Ruth Selinger

Patrick Kraemer

DECISION DELIVERED BY S. MANN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Valarie and Wesley Mountsteven (“Appellant”) own the property known municipally as 352 Oxford Avenue (“Subject Property”). To facilitate the redevelopment of the Subject Property, the Appellant applied to the Town of Ingersoll (“Town”) for consent to sever the Subject Property into two residential lots, as well as the associated minor variances (“MV”) to address Zoning By-law No. 04-4160 (“ZBL”) deficiencies which would result from the severance, if granted. The proposed severed lot would be located to the rear of the Subject Property in the form of a flag shaped lot.

2The Town’s planning staff provided a detailed report (“Staff Report”) to the Committee of Adjustment (“COA”) in support of their recommendation that the consent and MV applications (collectively, “Applications”) be approved, subject to a number of conditions. The COA refused the Applications, and that decision is now the subject of these Appeals before the Tribunal, brought pursuant to s. 53(19) and s. 45(12) of the Planning Act (“Act”).

3The Tribunal was advised prior to the Hearing that the Town would not be attending or taking a position.

4With the consent of the Applicant, Participant Status was granted to nearby residents: Wade and Alison Faubert, Darlene and John Franchetto, Gerald Binga, Jen Philips, Jerry and Donna McGinnis, Jill Beemer, Jon Hutcheson, Phillip Noviello and Sarah Roulston.

5The Tribunal received a written request for Party Status from Ruth Selinger, represented by her counsel, Patrick Kraemer. Ms. Selinger had retained both counsel and an independent planner to provide expert testimony to the Tribunal in support of refusal of the appeal. Ms. Selinger had made representations at the original committee of adjustment meeting regarding this matter.

6Ms. Selinger was granted Party Status based on the direct impact the Applications had on her property as well due to her having prepared a case.

7In opposition to the proposed development, the written statements of the Participants raised a variety of concerns including, but not limited to privacy concerns, servicing and infrastructure capacity and character of the neighborhood.

SITE CONTEXT AND EFFECT OF PROPOSAL

8The Appellant is seeking consent to create one (1) new lot from one (1) existing lot. If the proposed consent is given, the following variances are needed:

• To reduce the minimum lot frontage from 15 metres (“m”), to 6.09 m on the proposed severed lot; and

• To reduce the minimum lot frontage from 15 m to 14.05 m on the proposed retained lot.

9The Subject Property is a rectangular shaped lot located on the east side of Oxford Avenue between Jura Lane and North Town Line in the Town with a lot frontage of 20.14 m and a depth of 90.3 m. Currently it contains a single detached dwelling, a shed and a garage (to be demolished).

10The severed lot is proposed to have a lot frontage of 6.09 m and a lot depth of 90.3 m. The retained lot is proposed to have a lot frontage of 14.05 m and a lot depth of 39.62 m. The existing detached garage is located on both the proposed severed and retained lots and the retained parcel in addition contains the single detached dwelling. The proposed severance is proposed as depicted in the following illustration:

11The Subject Property is located within an enclave of 53 lots that stretch from Oxford Avenue from North Town Line W. to Jura Lane, with similar dwellings as the Subject Property. Outside of the immediate area, there is a larger neighbourhood of homes.

12Nearby the Subject Property is Garnett Elliot Park, located to the east, as well as Laurie Hawkins Public School.

13The Subject Property is surrounded by a lot fabric of predominantly single detached dwellings: one-storey bungalows, some split-level homes, some two-storey dwellings and Garrett Elliot Park to the east. There is a mix of attached and detached garages and some carports in the immediate area.

14The Subject Property is designated Residential in the County of Oxford Official Plan (“OP”), is zoned Residential Type 1 (R1) in the Town’s Zoning By-Law No. 04-4160 (“ZBL”).

LEGISLATIVE FRAMEWORK

Legislative Framework for Consent Appeals

15With respect to the Appeal pursuant to s. 53(19) of the Act, in order to determine whether provisional consents should be granted (with such conditions that may be required), the Tribunal must:

a. be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the Town and can proceed by way of application for consent;

b. if the Tribunal is satisfied that a plan of subdivision is not necessary, give regard to the criteria set out in s. 51(24) of the Act, including:

• that the proposed consent has regard to matters of provincial interest

• whether it is premature or in the public interest

• whether there is conformity to applicable Official Plans (“OP”)

• suitability of the land for the purposes for which it is to be subdivided

• dimensions and shapes of the proposed lots

• adequacy of utilities and municipal services

• restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the building and structures proposed to be erected on it and the restrictions, if any, on adjoining land

c. As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement (“PPS”). The Tribunal must also regard the decision of the approval authority relating to the consent application and the information and material that was before it when making that decision.

d. Pursuant to s. 51(25) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent.

e. Finally, in general, the Tribunal will decide whether the proposed consent, along with any required conditions, is representative of good planning and is in the public interest.

Legislative Framework for Minor Variance (“MV”) Appeals

16Pursuant to s. 45(1), the Tribunal must be satisfied that the requested MVs:

• maintain the general intent and purpose of the OP;

• maintain the general intent and purpose of the Town’s ZBL;

• are minor in nature; and,

• are desirable for the appropriate development or use of the land, building or structure.

17Additionally, the Tribunal must be satisfied that the variances are consistent with the PPS; have regard to matters of provincial interest; and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making that decision.

18Key matters of contention in this matter argued by parties included concerns of neighbourhood character, drainage and appropriateness of infill. The application involves the creation of a flag shaped lot, which is not unheard of but is unique to the Town.

THE HEARING

19The Tribunal received professional evidence from the following:

a. Rachel Bossie, the Land Use Planning Consultant for the Appellant;

b. Ron Versteegen, a Land Use Planner for the Town who gave evidence under summons at the request of the Appellant; and,

c. Allan Ramsay, a Land Use Planning Consultant for Ms. Selinger.

20In addition, the Tribunal heard from Ms. Selinger, who provided factual evidence.

21The Tribunal received and marked the following documents as Exhibits to the Appeal:

• Exhibit 1 – Joint Document Book

• Exhibit 2 – Witness Statement of R Bossie

• Exhibit 3 – Visual Evidence of R Bossie

• Exhibit 4 – Evidence Outline of R Versteegen

• Exhibit 5 – Witness Statement of Ruth Selinger

• Exhibit 6 – Witness Statement of Alan Ramsay

• Exhibit 7 – Neighbourhood Characteristic Book

• Exhibit 8 – Visual Exhibit Book

• Exhibit 9 – Photo Book

• Exhibit 10 – Participant Statements:

a. Wade and Alison Faubert;

b. Darlene and John Franchetto;

c. Gerald Binga;

d. Jen Philips;

e. Jerry and Donna McGinnis;

f. Jill Beemer;

g. Jon Hutcheson;

h. Philip Noviello; and

i. Sara Roulston

22The Tribunal also had the Municipal Record available to it, as forwarded by the Municipality, containing all the information and documentation that were before the COA when the application was received, considered and decided.

23Both Ms. Bossie and Mr. Versteegen were aligned in their analysis with respect to the proposed consent and MVs, concluding that they represent good planning, are in the public interest and meet all necessary legislative tests. The proposed development would be an efficient use of land in existing infrastructure.

24Mr. Ramsay, on behalf of Ms. Selinger, was of the opinion that the proposed development did not represent good planning and that the application was insufficient in regards to the criteria outlined in the Act in regards to minor variance as well as consent. Mr. Ramsay cited justifications for his opinion including that the proposed development’s key shaped lot would be incompatible with the area, could have impact on drainage, privacy, streetscape.

25Ms. Selinger provided factual evidence on the neighbourhood as well echoed the opinions of the Participant Statements regarding the character of the neighbourhood, privacy and infrastructure.

26It was the opinion of both Ms. Bossie and Mr. Versteegen that the proposed development was beneficial as a matter of provincial interest as it would allow for intensification through infill, maximizing the use of existing services.

27With respect to having regard to the Act and consistency with the PPS, the infill development would: allow the creation of a new dwelling that contributes to meeting long-term housing needs, promote efficiency use of land and municipal services, represent orderly development of safe and healthy communities, and direct small scale intensification to a low density residential area. The Appellant’s witnesses confirmed that the flag shaped lot would not negatively impact public health or safety as access to Oxford Avenue could be maintained with the reduced frontage for the severed lot. Further, Ms. Selinger’s planning witness conceded that the application raised no issues with the PPS or the Act.

28With respect to criteria of s. 51(24) of the Act, it was the opinion of Ms. Bossie that the proposed consent:

a. Has appropriate regard for matters of provincial interest;

b. Is not premature as there is access to service, with such infill being in the public interest;

c. Is suitable for the land for the purpose it is to be subdivided as both proposed lots and can accommodate the proposed dwellings and maintain access to a public street connecting to an adequate road network; and

d. Adequate utilities, municipal services and schools exist in neighbourhood.

29Regarding the test for minor variance, the Appellant’s witnesses were in agreement that the necessary criteria was met.

30The OP promotes the concept of compact urban form and intensification through infill keeping in line with the policies of the PPS and Act. Housing such as the proposed development would add to the housing supply and the OP allows for reduced municipal infrastructure and lot standards, provided such standards are still in keeping with the objective of the OP.

31The OP also allows for infill development involving construction of a residential dwelling unit behind a building facing a street and residential developments on lots with minimal frontage, including evaluation criteria for backyard infill. Criteria considered included regard for the type of housing found in the surrounding neighbourhood, siting and its effect on shadowing and privacy in adjacent yards, and direct vehicular access of sufficient width for various needs and functions.

32The proposal for development is a single detached dwelling of a form and style compatible for the neighbourhood. Ms. Bossie opined that there would be minimal impact on privacy and shadowing given existing fencing and foliage.

33The severed lot would require adequate frontage to allow efficient vehicular use of both private and emergency vehicles and space for snow storage. The Town staff report confirms that the proposed severed lot would be wide enough to allow for efficient vehicular access with no concerns identified by the Town Fire Department.

34A key issue of contention regarding the proposed development is impact on the neighbourhood character. The OP criteria for backyard infill does not include consideration for the character of the neighbourhood, however, Ms. Bossie opined that the proposed development is compatible.

35The Appellant’s position regarding the ZBL was that the application maintains the general intent and purpose.

36The ZBL provisions for R1 zoning require lot dimensions with a minimum lot area of 450 square metres (m²), minimum lot frontage of 15 m and lot depth of 30 m. The current lot exceeds these minimum requirements.

37Both the proposed retained and severed lots meet the requirements for lot area and depth, however, the lot frontage is below requirement with the retained lot having a frontage of 14.05 m and the severed lot 6.09 m.

38Ms. Bossie opined that the minimum lot frontage is required to ensure frontage on a public road is sufficient for vehicular access, snow storage, maneuverability for emergency vehicles and to ensure space for services. Ms. Bossie confirmed that the proposed frontage for the severed and retained lot would maintain these requirements, noting that no comments of concern were received from Town Fire, Union Gas or the County of Oxford Public Works Department or any other agencies circulated on the applications.

39According to the ZBL, residential use requires a minimum of two parking spaces per dwelling unit. Parking is permitted in all yards subject to a minimum setback of 1 m from the street line. Ms. Bossie demonstrated that both the severed and retained lots would meet the parking requirements.

40The Appellant argued that the proposed development is desirable and appropriate for the Subject Lands as it represents residential intensification that promotes efficient use of land and infrastructure.

41The Appellant argued that the requested variances are minor in nature as due to the backyard infill, there will be little impact on streetscape and vehicular access could be maintained. Further, drainage issue concerns, resulting from the backyard infill, will require addressing before development could proceed.

42Evidence presented, on behalf of Ms. Selinger, contended that the proposed development was not appropriate and should be denied. The basis of argument echoed concerns of the participant statements as well as planning concerns raised by Mr. Ramsay.

43A key concern raised was the impact of the proposed development on the unique lot pattern of Oxford Avenue, which contains estate lots with the vast majority over 1,125 m². Mr. Ramsay argued that the backyard infill and reduced frontages would negatively affect the streetscape and the modest infill gained was not worth the cost.

44Further, concerns were raised including a loss of privacy, potential drainage issues, preservation of trees and the precedent setting nature of such infill.

45Regarding privacy, the Appellant was able to demonstrate to the Tribunal that the existing foliage surrounding the Subject Property and existing fencing were adequate to maintain privacy. The Town does not have a by-law to address the cutting of trees, and, as a result, the Appellant is not required to preserve the trees. Concern for setting a precedent was addressed by Ms. Bossie, providing seven examples within the Town with similar backfill and noted that every subsequent application for similar infill would consider traffic and servicing impact.

46The effect on the lot fabric and streetscape of the neighbourhood, in relation to the proposed development, was a key concern in this matter. Although Mr. Ramsay was of the opinion that backyard infill was incompatible with the neighbourhood, the Tribunal also considered the opinion of the Appellant’s witnesses and determined that the proposed development is permissible. The OP has specific criteria to consider regarding backyard infill, which does not include consideration of streetscape. Ms. Bossie testified that the proposed severed lot being located to the rear of the retained lot dwelling would mitigate impact on streetscape and the retained lot dwelling presents no harm to the streetscape of Oxford Avenue. The OP is clear that backyard infill is permissible and desirable. The proposed development meets the criteria.

FINDINGS

47Notwithstanding the various observations, concerns and apprehensions expressed within the Participant Statements, the evidence put forward in support of the Appeal stood uncontroverted and unchallenged in any cogent manner. The Tribunal wholly accepted the detailed testimony of the Appellant’s witnesses and is satisfied the proposed consent and MVs meet all requisite Legislative tests and are, in general, representative of good planning in the public interest.

48In so finding, due regard has been given to matters of provincial interest, including but not limited to: the orderly development of safe and healthy communities, and the appropriate location of growth and development. Regard has also been given to the decision of the Town and the information it had available when making its decision.

49With respect to the matter of conditions to be imposed, the Tribunal finds the conditions recommended in the Staff Report, requested by the Town and consented to by the Appellant are reasonable, having regard to the nature of the proposed consents. Accordingly, the Tribunal will impose the conditions.

ORDER

50THE TRIBUNAL ORDERS the Appeals are allowed and:

1. Provisional consents are to be given subject to the conditions set out in Attachment 1 to this Order; and,

2. The variances to Zoning By-law No. 2008-250 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.

ATTACHMENT 1

Conditions

1. All financial requirements of the County with respect to the provision and installation of water and wastewater services must be complied with to the satisfaction of the County of Oxford Public Works Department. This condition can be cleared by payment for the connection of required services to the lot to be severed, to the satisfaction of the County of Oxford Public Works Department.

2. The Owner shall agree, in writing, to satisfy all requirements, financial and otherwise, of the Town of Ingersoll, regarding the installation of services and drainage facilities.

3. The Owner shall provide the payment of cash-in-lieu of parkland for the creation of the new lot to the Town of Ingersoll.

4. The Owner shall apply for and obtain a permit for the demolition of the existing detached garage and all demolition material shall be removed from the site to the satisfaction of the Town of Ingersoll Building Department.

5. The Owner shall submit a proposed grading plan, prepared by a Professional Engineer or Ontario Land Surveyor, to confirm drainage run-off for the proposed severed and retained lots, to the satisfaction of the Town of Ingersoll.

6. The Owner provides confirmation of the location of any overhead or underground services installed to the retained and severed lots. Services cannot traverse the adjoining lots and any conflicts must be re-directed or an easement created. Any proposed easements shall be reviewed by the Town of Ingersoll.

7. The Clerk of the Town of Ingersoll advise the Secretary-Treasurer of the Land Division Committee that all requirements of the Town, financial, services and otherwise, have been complied with.