Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
May 17, 2023
CASE NO(S).:
OLT-22-004747
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Skyline Real Estate Holding Inc.
Subject:
Minor Variance
Description:
To permit a maximum height of 13 metres for two proposed four-storey apartment buildings
Reference Number:
A47/2022
Property Address:
220 Mitton Street North
Municipality/Upper Tier:
City of Sarnia/County of Lambton
OLT Case No.:
OLT-22-004747
OLT Lead Case No.:
OLT-22-004747
OLT Case Name:
Skyline Real Estate Holding Inc. v. Sarnia (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Skyline Real Estate Holding Inc.
Subject:
Minor Variance
Description:
To permit a maximum height of 13 metres for two proposed four-storey apartment buildings
Reference Number:
A48/2022
Property Address:
220 Mitton Street North
Municipality:
City of Sarnia/County of Lambton
OLT Case No.:
OLT-22-004748
OLT Lead Case No.:
OLT-22-004747
OLT Case Name:
Skyline Real Estate Holding Inc. v. Sarnia (City)
Heard:
March 28, 2023 via video hearing
APPEARANCES:
Parties
Counsel
Skyline Real Estate Holdings Inc.
P. Harrington
City of Sarnia
Did not attend
DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was convened to consider the appeals by Skyline Real Estate Holdings Inc. (“Appellant”) of the decision of the City of Sarnia (“City”) Committee of Adjustment (“COA”) made on October 11, 2022 to refuse the minor variances.
NEIGHBOURHOOD CHARACTERSITICS
2The Tribunal heard the Subject Lands are neighbouring to the Village of Mitton and are approximately 750 metres (“m”) east of Downtown Sarnia. The land uses surrounding the Subject Lands comprise of a mix of residential and non-residential uses, with a range of built forms and building heights.
3Existing residential uses generally consist of 1-2.5 storey single detached dwellings; conversely, there are seven (7)-storey apartment developments located approximately 150 m to the east and 250 m to the north west.
4The Subject Lands are comprised of two contiguous parcels generally located on the westerly side of the Mackenzie Street, north of George Street, east of Mitton Street North and South of Essex Street. The Skyline lands are known legally as Blocks 12 and 13, Plan 25M-177.
5The Subject Lands previously contained the Former Sarnia General Hospital, which was demolished in 2018. The previous hospital buildings that fronted onto George Street ranged in height from four (4) storeys up to six (6)-storeys.
PARTICIPANT STATUS REQUEST(S)
6The Tribunal was presented with two requests for Participant Status.
- Chris Beausoleil, a local area resident, was granted Participant Status with no objections.
- Kelly O’Conner, a local area resident did not appear and was not granted Participant Status.
SUBMISSIONS
7The Tribunal heard opinion evidence from one witness, Dave Hannam, a Planner and Partner with the firm Zelinka Priamo Ltd., on behalf of the Appellant. Mr. Hannam was qualified with no objections and affirmed to provide evidence in the area of land use planning.
PLANNING HISTORY
8The Tribunal heard, in order to facilitate the redevelopment of the former Sarnia General Hospital lands (i.e. Subject Lands), in May 2018 Sarnia City Council approved Official Plan Amendment No. 11 (“OPA 11”) and Zoning By-law Amendment (“ZBA”) No. 5-2018-85 of 2002. Official Plan Amendment No. 11 changed the designation of the Subject Lands to “Mixed Use”. The County of Lambton approved OPA 11 in June 2018.
9Rezoning Application No. 5-2018-85 changed the zoning of the Subject Lands to a “General Commercial 1-11 Holding (GC1-11(H))” Zone. The revised zoning permits a range of commercial, institutional and residential uses, including apartment buildings and accessory uses and building, on the Subject Lands.
10Further, in March 2019, the City of Sarnia approved a Draft Plan of Subdivision (Application No.-SD3-2018) for the Subject Lands (i.e., Blocks 12 and 13); as well for the creation of 11 single detached dwelling lots (Lots 29-37) immediately to the north and fronting Essex Street.
11The Tribunal heard, Pursuant to Section 50(4) of the Planning Act, due to the fact that the subdivision was registered in 2020 (i.e. less than 8 years ago), a deeming by-law could not be granted to consolidate Blocks 12 and 13 into a single parcel, notwithstanding that both parcel are owned by the Appellant. As such, the Subject Lands must be considered as two separate lots for the purposes of zoning compliance.
12In October 2019, Sarnia City Council approved the removal of the “Holding” zoning symbol attached to the Subject Lands. This Holding symbol had required the completion of a Phase 1 and 2 ESA as well as a site servicing report for the Subject Lands. These reports were submitted to the satisfaction of City Council.
PROPOSED DEVELOPMENT
13The Tribunal was informed that the proposed development consists of a rental apartment development generally comprised of two (2) 4-storey rental apartment buildings for a total 118 one-and-two-bedroom units (59 units per building), and a single storey detached amenities (accessory) building for the residents located in the north westerly side of the Subject Lands. Building A is sited on Block 12 and Building B is sited on Block 13 of the approved subdivision plan.
14A total of 148 on-site surface parking spaces (at a rate of 1.25 spaces per unit), with access via new driveways off Mitton Street North and Mackenzie Street North, are proposed.
PROPOSED VARIANCES AND COMMITTEE OF ADJUSTMENT DECISION
15The Tribunal heard that concurrent consent applications for access and servicing easements across the Subject Lands were submitted for the proposed rental apartment development. These Consents (File Nos. B34 and B35/2022 were approved by the City’s Committee of Adjustment on October 11, 2022.
16During the same meeting of October 11, 2022, the COA received applications for the following variances from the Appellant:
- To permit a reduced minimum parking requirement of 0.8 spaces per unit for the proposed apartment building on Block 12 (Section 3.37(2)(a));
- To permit the proposed parking spaces to be located on a different lot than the one occupied by proposed buildings for which the parking spaces are required (Section 3.37(5));
- Relief from the requirement to designate specific visitor parking stalls (i.e. visitor spaces to be unmarked) (Section 3.37(13));
- To permit a minimum (easterly) side yard setback of 0.4m for Building A on Block 12 (Section 16.2.1.(4));
- To permit a minimum rear yard (George Street) setback of 3.5m for Building A on Block 12 (Section 16.2.1.(5)); and
- To permit a maximum height of 13m for Building A and Building B on Blocks 12 and 13 (Section 16.2.1.(7)).
17The Tribunal heard that City Staff prepared a report regarding the proposed Applications and Consents which recommended, “That Minor Variance Applications A47 and A48/2022 be APPROVED, to permit the proposed variances, including parking relief, reduced side and rear yard setbacks, and an increased maximum height.”
18The COA approved each of variances (1) through (5).
19The requested height variance (6) was refused. No reason(s) were offered by the Committee as to the basis of their refusal.
PLANNING EVIDENCE
20The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”)and meet each of the four tests in s. 45(1) of the Act.
21Mr. Hannam informed the Tribunal that the focus of his evidence relates to the appropriateness of the variance (6) sought for the maximum height for the Proposal.
Official Plan (“OP”)
22Mr. Hannam provided that the Subject Lands according to the County of Lambton’s OP are within the Sarnia “Urban Centre”.
23Further, within the City’s OP, the Subject Lands are within the “Urban Area” and a “Stable Residential Area” and are designated “Mixed Use”. Both Mitton Street North and George Street are identified as Collector Roads in the City OP.
24In July of 2022, a new Official Plan for the City of Sarnia through By-law No. 83 of 2022 was adopted. The County of Lambton is in receipt of the New OP and is confirming final approval.
25The Tribunal heard that under the New OP, the subject lands are proposed to be:
- within the “Settlement Area” and “Built Boundary Area” boundaries.
- designated “Mixed Use Corridor II”, which will permit a range of commercial and residential uses, including apartments buildings in low-rise (max. 3-storeys) and mid-rise built forms (3-6 storeys).
- within Site-Specific Special Area No. 14 (Section 5.7.14), which pulls through the land use permissions for the Subject Lands granted by OPA 11, which includes permitting Apartment Buildings and accessory uses/buildings.
26Mr. Hannam provided that both the proposed land use (Apartment Buildings) and the proposed height (4 stories) will be permitted under the incoming Sarnia Official Plan.
Zoning By-law
27Mr. Hannam testified that the Subject Lands are zoned “General Commercial 1-11 (GC1-11)” by the City Zoning By-law. The GC1-11 zoning permits a wide variety of commercial, institutional and residential uses for the Subject Lands, including Apartment Dwellings and their Accessory Uses.
The Four Tests under the Planning Act
Maintains the general intent and purpose of the County OP and City OP
28Mr. Hannam testified that within the County OP, it directs the majority of growth to areas with full municipal water and sewage services. The Subject lands are within the Sarnia Urban Centre and have access to existing and available municipal services.
29The Subject Lands are within the Urban Boundary, City Structure of the City OP. The City OP generally indicates that urban areas are lands that are to be the focus of development, redevelopment and intensification (Section 3.3). The proposed development will result in the introduction of 118 new rental apartment units on a currently vacant and underutilized site, with the Requested Variance for an additional 3 metres (1 storey) of building height providing for a total of 30 units.
30The Subject Lands are within a “Stable Residential Area”, City Structure of the City OP, where new development and reinvestment is to be achieved by residential development that reinforces the prevailing built form standards found in, or planned for, each neighbourhood. The Request Variance utilizes existing permissions for apartment buildings afforded to the subject property and is in a built form generally compatible with the mix of uses, building forms and heights in the surrounding area.
31Mr. Hannam provided that as per OPA 11, the Subject Lands are designated “Mixed Use” in the City OP, which permits apartment dwellings and accessory buildings.
32The Tribunal heard that the requested variance conforms with the criteria contained within Section 4.6.4.4 of the City OP for new development within the Mixed-Use designation, including:
- The 4-storey apartment buildings have been located along the George Street frontage to provide the greatest separation from the neighbouring single detached dwellings to the north; to help provide an appropriate transition to the low-rise residential area; to help minimize shadow impacts for surrounding properties (particularly in the spring and fall equinoxes); and to frame George Street and provide an attractive, safe, comfortable pedestrian environment.
The Requested Variance conforms with the Guidelines for New Development contained within Section 5.2.1 of the City OP, including the following:
- Providing buildings that are located close to street edges to provide street presence and frame the streets, while providing for a safe pedestrian environment; including buildings with multiple options to promote pedestrian connectivity within and to/from the Subject Lands; the retention of existing trees, where possible; the location, massing, scale and design of the proposed amenities building to reflect the low-rise form of the single family dwellings to the north; locating the apartment buildings along the George Street frontage to provide the greatest separation, transition and access to sunlight for the neighbouring single detached dwellings to the north;
33Mr. Hannam stated that the Requested Variance conforms with the new Official Plan adopted by City Council, which will permit a range of commercial and residential uses, including apartments buildings, in low-rise (max. 3-storeys) and mid-rise built forms (3-6 storeys) under the “Mixed Use Corridor II” designation proposed to be assigned to the Subject Lands. The subject proposal is actually lower than what may soon be the as-of-right height for this designation.
34Mr. Hannam opined that the Proposal maintains the general intent and purpose of the County OP and City OP.
Maintains the general intent and purpose of the ZBL
35The Hannam testified that the Subject Lands are zoned General Commercial 1-11 (GC1-11), which permits a wide variety of commercial and residential uses, including the proposed apartment dwellings and their accessory uses (i.e. the proposed amenities building).
36The intent of the maximum building height requirement of 10 m is to minimize the impacts of shadowing of the neighbouring residential uses, especially during the spring and fall equinoxes. As provided in Shadow Study, the proposed location of the two four (4)-storey apartment buildings would have no impact on neighbouring properties during the spring and fall equinoxes, and would have very minimal shadowing during the winter solstice.
37The surrounding residential lands have existing as-of-right zoning that permits a maximum building height of 12 m, which is comparable with the Requested Variance, which seeks a maximum building height of 13 m.
38Mr. Hannam provided that no setback relief is requested from any lot line shared by a neighbouring residential property. The Subject Lands could be redeveloped utilizing the planned as-of-right residential permissions that would allow for buildings of 10 m in height to be located within 5 m of the northerly lot line, whereas 32 m is provided to the apartment buildings.
39Mr. Hannam opined that the Proposal maintains the general intent and purpose of the ZBL.
Be desirable for the appropriate development or use of the land, building or structure.
40Mr. Hannam provided the proposed development would be an improvement of the existing condition of the Subject Lands, which is vacant, but previously comprised of a large hospital with building heights up to six (6) storeys. The proposed four (4)-storey apartment buildings will provide additional rental apartments for the public, while helping to facilitate the redevelopment of an underutilized property that has existing residential land use permissions.
41The Requested Variance to add 3 m of height would provide a total of 30 more rental apartments, without any significant impacts on existing services, roads or surrounding land uses.
42The location of the proposed apartment buildings along George Street mitigates any significant impact on the neighbouring residential properties to the north, while providing for a desirable pedestrian-scale streetscape along George Street.
43City staff, in consultation with the Ministry, confirmed that a Record of Site Condition (“RSC”) is not required for the proposal, given the findings of the previously approved environmental reports. As such, the redevelopment of the Subject Lands will not result in health impacts to the public, including future residents.
44Mr. Hannam opined that the Proposal will be desirable for the appropriate development or use of the land.
Be minor in nature
45Mr. Hannam testified the proposed increase in the maximum building height of only 3 m (10 feet) is numerically minor in nature.
46He opined that what is considered minor is not simply a numerical analysis. When evaluating what is considered as minor, consideration must be granted to what the actual or perceived impact that a variance may have, in addition to the numerical measurement.
47Mr. Hannam provided that the requested variance will not negatively impact the character of the area as such:
- The character of the neighbourhood is a mix of residential and non-residential uses which consists of a range of built forms and building heights.
- The Subject Lands are of a generous size and appropriate configuration to accommodate the proposed 4-storey buildings and provide the associated requisite design facets.
- The proposed locations for the buildings are close to the George Street property line to ensure that the buildings appropriately provide presence, address and activation for the surrounding streets. Positioning new buildings proximate to the street is a good urban design principle.
- The proposed apartment buildings have been positioned as far as practical from the existing single family lots to the north (i.e., at least 32 metres from the lot line), and are of a height that is considered compatible with the mix, range and heights, as well as the height permissions afforded, to the surrounding residential and non-residential land uses.
- The existing Urban Residential (UR) zoned lands that surround the Subject Lands have as-of-right maximum building height of 12 metres (i.e. 1 m less than what is being proposed for the apartment buildings).
- There is an existing 7 storey apartment building one block to the west along Forsyth Street, with low density residential to the north and south, with setbacks less than the proposed development.
- The Shadow Study illustrate that the siting of the 4-storey apartment buildings results in shadow impacts that are predominately internal of the Subject Lands and would have no impact on neighbouring properties during the spring and fall equinoxes.
48Mr. Hannam opined that the Proposal will be minor in nature.
- Mr. Hannam’s concluding opinion confirmed the Requested Variance to increase the maximum building height from 10 metres to 13 metres meets the four tests under subsection 45(1) of the Planning Act and that the Requested Variance represents good land use planning and is in the public interest.
FINDINGS
49Notwithstanding that the COA authorized five of the six requested variances, the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Appellant.
50The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant when making an application for the authorization of variances.
51The tests require that the variances are as follows:
a) maintain the general intent and purpose of the OP; b) maintain the general intent and purpose of the ZBL; c) be desirable for the appropriate development or use of the land, building or structure; and d) be minor in nature
52The Tribunal accepts and agrees with the unchallenged evidence of Mr. Hannam.
53The one outstanding variance request before the Tribunal represent a 3 m height difference in total sum. Noteworthy is the fact that the Subject Lands previously contained a large hospital with building heights up to 6 storeys. Where the Proposal seeks a four (4_–storey (13 m) height of the two (2) apartment buildings and 10 m is permitted, the Tribunal finds that the variance sought is appropriate for the Subject Lands.
54The Tribunal finds that the intensification and proviso of housing stock opportunities within the Subject Lands and its Proposal, has appropriate regard to matters of provincial interest found in s. 2 of the Act, and is consistent with the PPS
55The Tribunal further finds that the requirements required of the four (4) tests in the Act are met, including that they are minor, desirable for the appropriate development or use of the land, that they maintain the general intent and purpose of the zoning by-law and the variances maintain the general intent and purpose of the official plan.
56Furthermore, the City’s decision not to oppose these variances provides added credibility to the appeal and the Tribunal determines the appeal should be allowed.
ORDER
57THE TRIBUNAL ORDERS that the appeal to permit a maximum height of 13 m for Building A and Building B on Block 12 (No.6) is allowed and the variance to Zoning By-law No. 85- 2002 is authorized
58THE TRIBUNAL ORDERS that the Appeal is allowed, and the six (6) Variances to the City of Sarnia’s Zoning By-law No. 85 – 2002 as set out in Attachment 1 to this Decision and Order are hereby authorized.
“Carmine Tucci”
CARMINE TUCCI
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
For Building A on Block 12
a. To permit a reduced minimum parking requirement of 0.8 spaces per unit for the proposed apartment building on Block 12 (Section 3.37(2)(a));
b. To permit the proposed parking spaces to be located on a different lot than the one occupied by proposed buildings for which the parking spaces are required (Section 3.37(5));
c. Relief from the requirement to designate specific visitor parking stalls (Section 3.37(13));
d. To permit a minimum (easterly) side yard setback of 0.4m for Building A on Block 12 (Section 16.2.1.(4));
e. To permit a minimum rear yard (George Street) setback of 3.5m for Building A on Block 12 (Section 16.2.1.(5)); and
f. To permit a maximum height of 13m For Building A on Block 12 (Section 16.2.1.(7)).
For Building B on Block 13
a. Relief from the requirement to designate specific visitor parking stalls (Section 3.37(13));
b. To permit the proposed parking spaces to be located on a different lot than the one occupied by proposed buildings for which the parking spaces are required (Section 3.37(5));
c. To reduce the accessible parking space requirement to one Type A space and two Type B spaces for Block 13 (Section 3.37(12)(a));
d. To permit a maximum height of 13m For Building B on Block 13 (Section 16.2.1.(7)).