Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 17, 2023
CASE NO(S).:
OLT-21-001327
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Hidvary, Steven
Applicant:
Wesley and Ruth Hummel
Subject:
Zoning By-law
Description:
To permit the creation of a new residential lot
Reference Number:
4316EB-21
Property Address:
455 Line 2 Road
Municipality/UT:
Niagara-on-the-Lake/Niagara
OLT Case No:
OLT-21-001327
OLT Lead Case No:
OLT-21-001327
OLT Case Name:
Hidvary v. Niagara-on-the-Lake (Town)
Heard:
June 20, 2022 by video hearing
APPEARANCES:
Parties
Counsel/Representative
Wesley and Ruth Hummel (Applicant)
Steven Hidvary (Appellant)
Niagara-on-the-Lake (Town)
Thomas G. Hanrahan
Self-represented
Callum Shedden
Robert Di Lallo
MEMORANDUM OF ORAL DECISION DELIVERED BY jATINDER bHULLAR ON JUNE 20, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was a hearing respecting an appeal filed by Hidvary Steven (“Appellant”) regarding the approval of Zoning By-law Amendment No. 03-2021 (“ZBA”) by the Town of Niagara-on-the-Lake (“the Town”). The Appeal was made by the Appellant pursuant to s. 34(19) of the Planning Act.
2The Applicant has property municipally known as 455 Line 2 Road in the Town (“Subject Property”). The Applicant wishes to sever the existing lot to create one new lot in the rear yard that would front onto Pierpoint Drive. The property is currently zoned Residential (RD) Zone according to the Town Zoning By-law No. 4316-09, which permits existing uses only. The Residential RD zone is a holding zone that acknowledges that future development is anticipated, and that any future development is subject to approval of a Zoning By-law Amendment before it can proceed. Thus, an application for a Zoning By-law Amendment was submitted and it was approved by the Town as ZBA No. 03-2021 to the Town ZBL No. 4316-09.
3The Tribunal received an Affidavit of Service sworn by Colleen Hutt and dated April 11, 2022, which was determined to have properly provided Notice of this CMC. The Affidavit of Service was marked as Exhibit 1.
4The Tribunal and statutory Parties received no requests for granting of Party or Participant status.
WITNESSES
5The Appellant called Lesley Hidvary as a lay witness. Ms. Hidvary was affirmed to provide evidence at the hearing.
6There were two witnesses called in response to the Appellant evidence and these were both affirmed/sworn per their preference and were both qualified to provide opinion evidence in the area of land use planning after review of their credentials and acknowledgement of expert duty obligations. These witnesses were Richard Wilson, called by the Town and Jennifer Vida, called by the Applicant.
EVIDENCE
7Mr. Wilson described the site context as shown in Figure 1.
Figure: 1 Subject property: Niagara Aviator Aerial Context
8Mr. Wilson stated that the overall uses are:
North: Pierpoint Drive and single detached residential
South: single detached dwelling
East: Line 2 Road and single detached dwellings
West: stormwater management pond and townhouse dwellings
9Ms. Hidvary testified that her key concerns included the proposed lot coverage and setbacks, the size of the proposed dwelling and their lack of privacy once the second dwelling is built.
10Ms. Hidvary further testified that the lot opposite to the proposed new dwelling is in the order of 647 sq m whereas the plan for the Applicant is a lot of about 475 sq m.
11Ms. Hidvary stated that the backyard of the new lot will create privacy concerns to their house. She continued that their existing side yard will be overlooked from the new dwelling backyard.
12Ms. Hidvary also testified that during the winter there will be unwelcome shadow impacts on their property.
13During cross examination by the City, Ms. Hidvary did not dispute that the development subdivision across from existing properties known as Bradfield Estates has lot sizes of 360 sq m and that this was typical of new and modern lot standards. Ms. Hidvary emphasized that the Bradfield estates were not across the street.
14Ms. Hidvary was questioned about the history of the Appellant also opposing the new planned subdivision but she provided no comment.
15During re-examination Ms. Hidvary stated that at present the frontage of homes is east or west, they do not oppose such an arrangement.
16When asked about the height of a new storey being the same as allowed for existing dwellings at 10 m, Ms. Hidvary stated that the Subject Property being a corner lot, has greater impact based on the planned layouts of the existing and future dwelling.
17Mr. Wilson provided his opinion evidence with reference to staff reports that were processed under his supervision at the Town as well as the Applicant-submitted planning report. He provided oral testimony in addition to emphasize his opinions.
18Mr. Wilson opined that the proposal has appropriate regard for the Provincial Interest per s. 2 of the Planning Act. He specifically highlighted applicable subsections (h, j, p and r). He summarized that the proposal provides for a safe and healthy development and community; provides for a range of housing; is an appropriate location for development; and represents well-designed addition with a sense of place.
19Mr. Wilson reviewed the applicable aspects of the Provincial Policy Statement 2020 (“PPS 2020”) and testified that the subject land is a Settlement Area. He highlighted in his overall analysis and opined that the proposed development is an example for better use of under-utilized lands and provides an example of adding to the existing housing stock. He opined that the proposal is consistent with PPS 2020 when applicable policies are considered.
20Mr. Wilson reviewed the Growth Plan for the Greater Golden Horseshoe (2019), as amended (the Growth Plan). He highlighted that the subject land and the proposed development are in the Greenfields Area. The proposed development represents an increase in amount of housing to what is currently available. He opined that it would contribute towards meeting housing growth targets. He added that the proposal would also make use of existing municipal infrastructure and facilities thus making the use of the same in a more efficient way without additional municipal expenses. He opined that in total review of all applicable policies of the Growth Plan, the proposal conforms with it.
21Mr. Wilson reviewed the Niagara Region Official Plan (2014) (“ROP”). He reiterated that the ROP espouses efficient use of urban serviced lands through infill developments; promotes a mix of housing types; and directs development towards existing built-up areas. He opined and summarized that for the applicable considerations of the ROP, the proposal conforms with the ROP.
22Mr. Wilson reviewed the Town’s Official Plan (“TOP”). He stated that the TOP directs growth towards opportunities within the Urban Boundary. The TOP encourages the same for efficient use of existing infrastructure. He testified that the proposed development has easy access to local stores and services, as well as transit at the same level as the existing houses. He stated and summarized that the proposal contributes towards the Town meeting its forecasted population and housing growth targets. Mr. Wilson in conclusion of reviewing the TOP policies, opined that the proposal conforms with the TOP.
23In review of the proposed ZBA, Mr. Wilson stated that it is appropriate and reasonable in its requested changes in quantity as well as the specific areas such are requested to. This is illustrated in the record on file as follows:
Proposed lot
Residential (R2) Zone
No.
Provision
Requirement
Proposed
10.2.2
Zone Requirements
(a)
Minimum Lot Frontage
15.0m (49.2ft)
13.0m(42.6ft)
(b)
Minimum Lot Area
475m2 (5113ft2)
396m2(4262ft2)
(c)
Maximum Lot Coverage
40%
45%
(d)
Minimum Landscaped Open Space
25%
25%
(e)
Minimum Front Yard Setback
6.0m (19.69ft)
6.0 metres to front face of garage and 4m
to front face of
dwelling
(f)
Minimum interior side yard setback of 1.2m (3.94ft) on each side, except where there is no attached garage, the minimum side yard shall be 3.0m (9.84ft) on one side.
no change
(g)
Minimum Exterior Side Yard Setback
4.5m (14.76ft)
n/a
(h)
Minimum Rear Yard Setback
7.5m (24.6ft)
7.5 metres except that a covered porch is permitted to encroach
3.0 metres into the rear yard setback
(i)
Minimum Dwelling Floor Area
93m2 (1001 ft2)
no change
(j)
Maximum Building Height
10.0m (32.8ft)
no change
(k)
Minimum Accessory Building Yards Setback
1.5m (5ft)
no change
(l)
Minimum Accessory building exterior Side Yard Setback
4.5m (14.76ft)
no change
NEW
Garage shall not project beyond the front face of the dwelling façade except where a front porch extends across the face of the dwelling, the garage may project to the depth of the front porch
NEW
Garage doors shall not occupy more than 55% of the width of the dwelling
24In comparison he stated that the existing total lot is very significantly underutilized versus the Residential (R2) Zone performance standards. He opined that the requested permissions in the ZBA are well suited and will maintain the neighbourhood context.
25Mr. Wilson summarized that the proposal in its totality, having met the necessary statutory, policy and plan requirements represents good land use planning.
26Ms. Vida in providing her planning opinion stated that she concurs with the land use planning opinion expressed by Mr. Wilson. She added that having reviewed other existing housing in the area she believes the proposed is consistent with the neighbourhood. She concluded that in concurrence with Mr. Wilson’s land use planning evidence, the proposal having met all the required statutory tests, she finds that the proposal represents good land use planning.
ANALYSIS
27The Tribunal at this hearing heard from a lay witness, Ms. Hidvary and two people qualified to provide opinion evidence in the area of land use planning; Mr. Wilson and Ms. Vida.
28Whereas the Tribunal assists parties not represented by legal counsel or lay witnesses in terms of their role and responsibility at a hearing, it has no role in creating nuances to what was not presented. The counsel for the Applicant and the Town submitted that the Tribunal provide little if any weight to the evidence given by Ms. Hidvary versus their qualified witnesses.
29Ms. Hidvary’s evidence severely lacked as substantive corroboration with respect to the Planning Act, PPS 2020 policies, the Growth Plan policies, as well as the ROP and the TOP plan considerations. This is in contrast to the abundant and well reasoned evidence of Mr. Wilson and Ms. Vida. Both of these witnesses provided references to appropriate land-use planning evidence , the evidence that was before the approval authority when it made its decision.
30The Tribunal finds based on the expert opinion evidence of Mr. Wilson and Ms. Vida that the ZBA has appropriate regard for the matters of Provincial Interest (s. 2 of the Planning Act), is consistent with PPS 2020, conforms with the Growth Plan and conforms with both the ROP and the TOP, and that it represents good land use planning.
ORDER
31THE TRIBUNAL ORDERS that the appeal is dismissed.
32Pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, this Order shall be, and was, effective as of the date of the hearing of this Appeal, and the delivery of the Oral Decision and Order of the Tribunal, on June 20, 2022.
“Jatinder Bhullar”
JATINDER bhullar
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.