Atlantic Bridge Investments (Canada) Inc. v. Welland (City), 2023 CanLII 33403

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 18, 2023

CASE NO(S).: OLT-22-004832

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

Applicant and Appellant: Atlantic Bridge Investments (Canada) Inc.

Subject: Minor Variance

Description: To permit construction of a new 3-storey, 8-unit multiple dwelling with increased lot coverage, reduced rear yard setback and zero required parking spaces

Reference Number: A75-2022

Property Address: 675 King Street

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-22-004832

OLT Lead Case No.: OLT-22-004832

OLT Case Name: Atlantic Bridge Investments (Canada) Inc. v. Welland (City)

Heard: March 28, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel*/Representative

675 & 681 Apartments on King Inc. [Previously Property Force (Canada) Inc.]

R. Cheeseman S. Fleming

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS AND P. TOMILIN ON MARCH 28, 2023 AND ORDER OF THE TRIBUNAL

1The Tribunal convened a Merit Hearing (“Hearing”) with respect to an appeal brought pursuant to section 45(12) of the Planning Act (“Act”) by Atlantic Bridge Investments (Canada) Inc. for a property municipally addressed as 675 King Street (“Subject Property”) located in the City of Welland (“City”) due to the refusal of the Minor Variance Application (“MV”) by the Committee of Adjustment. (“COA”)

2At the outset of the hearing Mr. Cheeseman, counsel for the Applicant advised that his retainer and that of the witnesses has been transferred from Property Force (Canada) Inc. to the new owner of 675 King Street. The legal name of the new owner is 675 & 681 Apartments on King Inc (“Applicant”). Counsel requested that the Party status be transferred to the new owner based on his submission that the new owner has the same established interest in the matter as the previous owner.

3The Subject Property is within the Urban Area of the City. The City’s Official Plan (“OP”) designates the property as Health and Wellness Cluster. Under Zoning By-law No. 2017-117 (“ZBL”), the Subject Property is zoned CC2 (Community Commercial Corridor) which permits block townhouses, apartments and multiple dwellings in addition to a wide range of commercial uses.

4The purpose of the MV is to build a three storey apartment building with eight rental units with no on-site parking provided.

5The City’s planning staff presented a report dated November 17, 2022, to the COA which supported MV No. A75/2022. The Document Book was entered as Exhibit 1.

6The Applicant is requesting relief from the provisions of ZBL, as amended, under Section 45 of the Act, with respect to the following:

1. Table 6.4.1 – Multiple Dwelling – To permit a reduction in the number of required parking spaces from 3 to 0 for a proposed 8-unit multiple dwelling.
2. Table 8.3.1 – CC2 Zone – To permit a minimum rear yard of 1.2 metres (“m”) instead of the required 3 m for a proposed multiple dwelling.
3. Table 8.3.1 – CC2 Zone – To permit a maximum lot coverage of 59.5% instead of the maximum 50%.

RECOMMENDATION MINOR VARIANCE FILE A74/2022

7The Planning Division recommends approval of MV A75/2022 for the following reasons:

1. The application is compliant with the general intent and purpose of the Official Plan as the proposed development and the requested variances do not conflict with the Official Plan.
2. The application is compliant with the general intent and purpose of the Zoning By-law save for the requested variances, the proposed development is a permitted use within the CC2 Zone.
3. The application is an appropriate addition to the site as the proposed 8-unit development will add variety and housing stock to the neighbourhood, aiding in intensification within the Urban Area.
4. The application is minor in nature as the proposed variances will have minimal negative effect on neighbourhood.

8The City confirmed prior to the hearing that they do not intend to participate in the hearing and was not in attendance.

PARTY/PARTICIPANT STATUS REQUESTS

9In response to the notice, no Party or Participant requests were received at that time.

LEGISLATIVE TESTS

10The Tribunal in carrying out their responsibilities shall have regard to, among other matters, matters of provincial interest, as set out in s.2 of the Act.

11When making a decision relating to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision, as set out in s. 2.1 (1) of the Act.

12A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with or shall not conflict with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”), as set out in s. 3(5) of the Act.

13An appeal to the Tribunal pursuant to s. 45 of the Act is a hearing de novo. The Tribunal may authorize such minor variance from the provisions of the by-law as in its opinion meets each of the tests set out in s. 45(1) of the Act. The four tests under s. 45(1) of the Act require the applicant to satisfy the Tribunal that each variance:

1. maintains the general intent and purpose of the official plan;
2. maintains the general intent and purpose of the zoning by-law;
3. is desirable for the appropriate development or use of the land building or Structure; and
4. is minor.

SUBJECT PROPERTY AND SURROUNDING AREA

14The Subject Property has frontage of approximately 12.8 m on King Street with an area of 277.18 square metres (“m²”) and is currently vacant with signs of a remnant building footprint present.

15The surrounding land uses include a mix of residential, commercial, vacant industrial lands to the south and institutional uses to the north.

PLANNING EVIDENCE

16The Tribunal qualified one planning witness, Michael Sullivan, to provide expert opinion evidence in the discipline of land use planning. The witness statement prepared by Mr. Sullivan was included in the Applicant’s Document Book entered as Exhibit 1.

Matters of Provincial Interest Planning Act

17The Tribunal heard evidence from Mr. Sullivan that the MV has had appropriate regard for the applicable matters of provincial interest under Section 2 of the Act in particular items e, f, g, h, h.1, I, j, k, l, n, o, p, q, and r.

Provincial Policy Statement

18Mr. Sullivan provided evidence that the MV is consistent with the PPS and specifically in relation to Sections 1.1.1, 1.1.3 and 1.4.

19Mr. Sullivan noted that the PPS encourages efficient land use and development patterns promoting strong, liveable, healthy, and resilient communities.

He reasoned that this MV proposes to increase the supply of rental housing in a multi-unit built form and, on that basis, it was his opinion that this application is consistent with the PPS.

Growth Plan for the Greater Golden Horseshoe

20The witness reviewed the policies of GP, in particular, Sections 2.2.1 (Managing Growth), 2.2.2 (Delineated Built-up Areas), 2.2.4 (Transit Corridors and Station Areas) and 2.2.6 (Housing) which, in his opinion, apply to this application.

21The witness opined that the MV will direct growth to an urban settlement area (2.2.1), specifically to the Welland delineated built-up area (2.2.2) where such development is considered appropriate.

22Mr. Sullivan outlined that the site is located on two Welland Transit routes and is close to existing transit stops, thereby meeting the policy of promoting growth along transit corridors (2.2.4).

23The witness stated that the application will provide eight rental apartment units, which, in his opinion, will help to satisfy the need for rental housing in the City.

24Mr. Sullivan provided his opinion that this MV conforms with or shall not conflict with the GP.

Niagara Region Official Plan

25Mr. Sullivan reviewed for the Tribunal what he viewed as the relevant portions of the Niagara Region Official Plan (“NROP”), approved by the Minister of Municipal Affairs and Housing on November 4, 2022, in particular: Section 2.3 (Housing), 5.1 (Multimodal Transportation System), 5.2 (Infrastructure), 6.2 (Healthy Communities), as well as, Schedules A, B, J1, and J2.

26He provided his opinion that this application satisfies policy 2.3.2.5 of the NROP directly as the proposal will be serviced by existing municipal water/wastewater services, is near existing transit, active transportation facilities and public service facilities such as fire, recreation, food and pharmacies.

27Mr. Sullivan pointed to Section 6.2 – Urban Design which provides policy direction of the NROP related to making places attractive, memorable and functional. He commented that the site is high profile, being located on a busy arterial road within Welland. It was his opinion that the new building construction and style resulting from this application will improve the area and enhance the urban design of the neighbourhood.

28Mr. Sullivan concluded that the MV meets the general intent and purpose of the NROP.

City of Welland Official Plan

29Mr. Sullivan advised that the OP designates the Subject Property as “Health & Wellness Cluster”. The witness indicated that he is in agreement with the Welland Planning Division opinion presented in the Memorandum dated November 17, 2022, (Exhibit 1) that the MV:

is compliant with the general intent and purpose of the Official Plan as the proposed development and the requested variances do not conflict with the Official Plan.

Mr. Sullivan indicated that in his opinion, this application meets the general intent and purpose of the OP.

City of Welland Zoning By-law

30The planning witness identified that the Subject Property is zoned “Downtown Mixed Use Centre - DMC” per Map F3 or Schedule A of the ZBL.

31Mr. Sullivan advised that he had reviewed the Parking Study prepared by Adam Mildenberger in preparing for this hearing. Mr. Sullivan indicated that the request to provide no on-site parking spaces, whereas the ZBL requires three parking spaces, is appropriate since there are two solutions available to achieve good planning: either the owner enters into a lease agreement to provide parking within the nearby municipal parking lot, or the owner contributes cash-in-lieu of parking to the satisfaction of the City. (Paragraph 76 - Michael Sullivan Witness Statement – Exhibit 1)

32Mr. Sullivan referenced the Memorandum prepared by the Welland Planning Division related to the MV which stated that,

To accommodate parking for the proposed development, the developer will enter into a lease agreement with the City of Welland to use the public parking lot located across King Street, behind the Blue Star Restaurant for future tenant use.

33Mr. Sullivan provided his opinion that the variances requested meet the general intent and purpose of the ZBL.

MINOR

34Mr. Sullivan reviewed all variances requested and whether they would result in a potential negative impact on the neighbourhood. He pointed out that seeking the exemption from providing on-site parking allowed other zoning provisions to be met and that alternative parking is available within 100 m of the site at a municipal parking lot. He indicated that the proposal, which would be implemented by the MV, would have a positive impact on the neighbourhood. Constructing a new building on the subject site will improve the neighbourhood from the Subject Property’s current vacant state and provide rental housing units.

35Mr. Sullivan indicated that it is his opinion that the application is minor in nature.

APPROPRIATE DEVELOPMENT

36The planning witness determined that the proposed MV is appropriate for the site and the neighbourhood. The current vacant site will be improved by the construction of new rental housing in a built form consistent with the neighbourhood. The variances are considered minor as they do not fundamentally change the primary residential use nor do they, in his opinion, result in negative impacts to neighbouring properties.

37Mr. Sullivan reasoned that reducing the footprint of the building to meet the zoning provisions would require a taller building, potentially resulting in greater negative impacts to neighbouring properties. He determined that this is an undesirable result that is avoided with this MV.

38Impacts to the neighbourhood will be positive, in his opinion, since they will permit a vacant property to be developed and provide needed rental housing in this area. ln addition, the construction of these buildings could prompt other re-development efforts in the area, resulting in more positive impacts to the neighbourhood.

39It is Mr. Sullivan’s stated opinion that this MV will result in desirable development.

40Mr. Sullivan provided his concluding land use planning opinion that the requested MV:

• has had appropriate regard for the applicable matters of provincial interest under Section 2 of the Act;
• is consistent with the PPS;
• conforms to the GP;
• meets the general intent and purpose of the NROP and OP;
• meets the general intent and purpose of the ZBL; and
• meets the four tests of Section 45(1) tests to be considered minor variance.

TRIBUNAL FINDINGS

41The Panel considered the request of counsel to transfer Party status to the new property owner, 675 & 681 Apartments on King Inc. In accordance with Rule 8.2 of the Ontario Land Tribunal Rules of Practice and Procedure, the Panel is in agreement that this request is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding and the requested transfer of status is, accordingly, granted.

42The Tribunal accepts the uncontested planning opinion evidence of Mr. Sullivan and finds that the MV meets all the relevant policy tests of s. 2 of the Act, the PPS, the GP, is in conformity with the NROP and OP, represents good planning and is in the public interest.

43The Panel considered the information available to the CAO and the decision of the CAO when deliberating it’s decision.

44The original MV has not been revised and remains the same.

45The Tribunal finds that the MV satisfies the required legislative tests with reasons that include the following:

a. This proposed intensification will make efficient use of municipal services and infrastructure within an existing serviced settlement area; b. The location is in proximity to public transit, will be transit supportive and encourage walkability through active transportation; c. The proposed MV will permit compatible intensification through the provision of eight units at an appropriate scale that will not negatively impact the surrounding area; d. The parking supply will be adequately addressed through either a parking lease agreement or cash-in-lieu of parking payment by the owner provided to the satisfaction of the City; and e. The MV will provide rental units in a three storey building without the requirement for a taller building to be required.

ORDER

46THE TRIBUNAL ORDERS that in accordance with Rule 8.2 of the Ontario Land Tribunal Rules of Practice and Procedure, Party status is transferred from Atlantic Bridge Investments (Canada) Inc. to 675 & 681 Apartments on King Inc. and;

47THE TRIBUNAL ORDERS that the appeal is allowed and the variances to the City of Welland By-Law No. 2017-117 are authorized.

“Astrid J. Clos”

ASTRID J. CLOS MEMBER

“P. Tomilin”

pavel tomilin 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.