Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 11, 2023
CASE NO(S).: OLT-22-004136
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Marius Ardelean
Subject: Consent
Description: To sever the subject property into two lots
Reference Number: B4/22
Property Address: 34 David Street
Municipality/UT: Township of Wellesley
OLT Case No.: OLT-22-004136
OLT Lead Case No.: OLT-22-004136
OLT Case Name: Ardelean v. Wellesley (Township)
Heard: January 9, 2023 via Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Marius Ardelean | Jennifer Meader |
| Township of Wellesley | Did not appear |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON JANUARY 9, 2023 AND ORDER OF THE TRIBUNAL
1Marius Ardelean (“Applicant”) owns the property located at 34 David Street (“Subject Property”) in the Township of Wellesley (“Township”). The Applicant applied to the Township for provisional consent to sever the Subject Property to create one additional lot. Planning staff recommended the approval of the consent and the Committee of Adjustment (“COA”) denied the Application. The Applicant appealed the decision of the COA to the Tribunal under section 53(19) of the Planning Act (“Act”).
SUBJECT PROPERTY AND EFFECT OF PROPOSAL
2The Subject Property currently has an existing single detached dwelling that is approximately 1885 square metres (“sq m”) in size.
3The Subject Property is:
a) Located within a “Built Up Area” within a Township Urban Area under the Region of Waterloo Official Plan (“ROP”);
b) Designated “Urban Residential” on “Map 4 Wellesley Urban Area” in the Township Official Plan (“OP”);
c) Zoned Urban Residential (UR) under Township Zoning By-law 28-2006 (“ZBL”); and
d) Serviced by Municipal water and sewage.
4The Subject Property is surrounded almost entirely by residential uses and there is a large pond (Wellesley Pond) behind the property.
5The application proposes to sever the Subject Property into two parcels and would remove a portion of the existing dwelling with the intent of building a single detached dwelling on the severed lot. The retained lands contain the remainder of the existing dwelling. The proposed lots would have the following:
| Land Type | Approximate Area | Frontage onto David Street |
|---|---|---|
| Retained lands | 1344 sq m | 26.58 m |
| Severed lands | 541 sq m | 13.7 m |
LEGISLATIVE FRAMEWORK
6With respect to the Appeal under s. 53(19) of the Act, in order to determine whether provisional consent 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 Township and can proceed by way of application for consent;
b) If the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act;
c) As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement (the “PPS”) and conforms to any applicable Provincial Plans (in this case, A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”)). The Tribunal must also have regard to 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. 53(12) 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 in the public interest.
HEARING
7Prior to the Hearing, the Township advised that they would not be participating.
8The only expert opinion evidence before the Tribunal included the testimony of Tim Van Hinte, the Director of Planning for the Township, who provided evidence under summons issued at the request of the Applicant; Mr. Van Hinte prepared the report to the COA regarding the application. The Tribunal qualified Mr. Van Hinte to provide opinion evidence in land use planning.
9The Tribunal received and marked the following documents as Exhibits to the Appeal:
Exhibit 1: Applicant Document Book and Visual Evidence of the Applicant - Final
Exhibit 2: Will Say of Tim Van Hinte
Exhibit 3: Draft Order - Final
10The Tribunal also had the Municipal Record available to it as forwarded by the Municipality, containing the information and documentation that were before the COA when the Application was initially received, considered and decided.
11Mr. Van Hinte provided the Tribunal with a comprehensive overview of the relevant planning policy documents regarding the application. It was his overall opinion that the proposal meets all the statutory requirements and is representative of good planning in the public interest. Mr. Van Hinte opined that the proposal conforms to the Official Plans and meets the zoning requirements and also stated that the proposal:
a) Supplies housing to the village;
b) Contributes to the wise use of resources and lands;
c) Protects public health and safety;
d) Is away from natural hazards;
e) Features appropriate built form for the neighbourhood; and
f) Contributes to the varied character of the neighbourhood.
12Mr. Van Hinte reviewed the matters of provincial interest (s. 2 of the Act) finding that the application does have regard for those matters, specifically subsections a), d), e), f), h), j) and m) - s). He also opined that the proposal is consistent with the PPS and spoke to the policies regarding building healthy and strong communities in s. 1, as well as those policies regarding natural hazards in s. 3. Looking at the GP, Mr. Van Hinte stated that the proposed consent generally conforms and also pointed to specific applicable policies including s. 2.2.2 (Delineated Built-Up Areas, as the proposal achieves intensification targets), s. 3 (Infrastructure to Support Growth, as the proposal efficiently uses existing infrastructure) and s. 4 (Protecting What is Valuable, as the proposal protects natural heritage features).
13Mr. Van Hinte confirmed that the proposal conforms broadly to the ROP and specifically to the policies found in:
Chapter 2: which state that development should contribute to complete communities, be serviced, protect the natural environment and respect the scale and character of existing neighbourhoods;
Chapter 3A: which speak to intensification and the provision of the appropriate range of housing; and
Chapter 3G: which speak to Cultural Heritage, as the proposal will retain the portion of the existing dwelling built in the 1800’s (though it is not officially designated or recognized as a heritage building).
14Speaking to the OP, Mr. Van Hinte highlighted that the Subject Property is designated Urban Residential, and that this designation is intended to provide a range of residential uses to accommodate the needs of the Township. He also addressed the Housing Policies of s. 4 which speak to the provision of a range and mix of housing types, and specifically cited those policies relating to re-urbanization, intensification within the built-up area and the efficient use of land. It was his opinion that the proposed consent conforms to the OP.
15In his analysis, Mr. Van Hinte identified that one of the primary considerations when reviewing severance applications is compliance with the ZBL. He confirmed that both the retained and the severed parcels comply with the regulations of the ZBL and meet the regulations of the Urban Residential zone with regard to minimum lot area, minimum lot frontage, maximum lot coverage, minimum front yard setback and minimum side yard. Regarding the minimum rear yard, Mr. Van Hinte explained that while the retained house is 4.0 m from the rear lot line (where 7.5 m is required) it is a non-complying use that existed on or before the date the ZBL was passed. When it is a non-complying use, the existing setback is considered to be legal, as such Mr. Van Hinte considered that criteria to be met.
16Mr. Van Hinte stated that, as only one additional lot will be created, a plan of subdivision is not required for the proper and orderly development of the Township. Having reviewed the criteria in s. 51(24) of the Act, he opined that the proposed consent met the criteria, specifically as it:
Is not premature and is in the public interest, particularly as it provides housing and contributes to re-urbanization and public safety;
Achieves conformity with the applicable Official Plans;
Is suitable for the number and type of dwellings proposed;
Will result in the creation of lots of shapes and sizes that are consistent with other lots in the area; and
Has regard for both natural resources and flood control.
17The Grand River Conservation Authority (“GRCA”) had no objection to the application. The Region of Waterloo (“Region”) also had no objection to the application, but did request a condition requiring that the Applicant enter into an agreement with the Region, to be registered on title, to include two noise mitigation and warning clauses in all offers of purchase and sale and/or rental agreements for the severed lands.
18Mr. Van Hinte’s report to the COA recommended that the application be approved subject to six conditions, which he reviewed for the Tribunal, and he also spoke to the condition requested by the Region. He recommended the proposed conditions finding them to be reasonable per s. 51(25).
19Though not submitted as formal Participant statements, Mr. Van Hinte responded to concerns raised to the COA by two neighbours, which included concerns regarding the proximity of the proposed new dwelling on the severed portion, increased traffic and parking as well as tree removal. It was his opinion that the concerns have been considered and analyzed. Mr. Van Hinte identified that the proposal would meet the zoning standards, including the minimum side yard setback for the severed portion. He stated that the addition of one to two cars will not have an impact on traffic and that the proposed removal of one sizeable tree is reasonable.
FINDINGS
20The Tribunal is satisfied that the concerns of the neighbours (as expressed to the COA) were appropriately and adequately addressed by Mr. Van Hinte during his testimony.
21The Tribunal accepts the uncontroverted evidence presented by Mr. Van Hinte and is satisfied that the Provisional Consent is appropriate. Specifically, the Tribunal is satisfied that the proposal does not require a plan of subdivision, has regard for the criteria of s.51(24), meets all other required legislative requirements and is, in general, representative of good planning in the public interest. It will supply housing through intensification in an appropriate location, will contribute to the wise use of land and existing resources (including infrastructure and transportation networks), will promote health and safety by avoiding natural hazards and will fit in with the varied character of the neighbourhood.
22In 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 Township and the information it had available when making its decision.
23The Tribunal recognizes that as part of the agreed upon conditions currently before the Tribunal, the Parties have agreed to a condition “That the Applicant pay all costs incurred by the Township in relation to the subject application, including but not necessarily limited to planning, administration, engineering and legal fees prior to the certification of the deeds”. While the Parties may have already agreed to this condition, the Tribunal finds that this is a private matter between the two Parties and has no opinion on the matter.
24With respect to the matter of conditions to be imposed, the Tribunal finds that the remaining recommended conditions, requested by the Township and the Region and consented to by the Applicant are reasonable and appropriate, having regard to the nature of the proposed consent. As a result, the Tribunal will impose the remaining conditions.
ORDER
25THE TRIBUNAL ORDERS that the Appeal is allowed and the provisional consent (as shown on the severance sketch attached hereto as Appendix ‘A’) is to be given subject to the following conditions:
That the Applicant pay the Township any outstanding taxes, in full, for the Subject Lands, prior to the certification of the deeds.
That the Applicant provide a survey of the Subject Lands completed by an Ontario Land Surveyor registered on title at the time of the certification of the deeds.
That the Applicant contribute to the Township street lighting reserve in the amount of $2000.00 per lot that is being created, prior to the certification of deeds.
That the Applicant pay cash-in-lieu of parkland dedication, prior to the certification of the deeds.
That the Applicant obtain a demolition permit for the removal of the garage and associated addition, and the removal of all structures be completed prior to certification of the deeds.
That prior to final approval, the owner/Applicant enter into an agreement with the Region of Waterloo, to be registered on title, to include the following noise mitigation and warning clauses in all offers of purchase and sale and/or rental agreements for the severed lands:
a. The proposed dwellings on the severed lot must be installed with air-ducted heating and ventilation system suitably sized and designed to allow provision of central air conditioning.
b. Purchasers are advised that despite the inclusion of noise attenuation control features in the development and within the building units, sound levels due to increasing road traffic on Regional Road #05 (Queen’s Bush Road) may on occasions interfere with some activities of the dwelling occupants as the sound levels exceed the sound level limits of the Region of Waterloo and the Ministry of the Environment Conservation & Parks (MOECP).
“S. Bobka”
S. BOBKA 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.