Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25 2023 CASE NO(S).: OLT-23-000002

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

Applicants/Appellants: Michael and Halina Piotrowicz Subject: Consent Description: To facilitate creation of a new lot and construction of two new single detached houses Reference Number: B88/22 Property Address: 91 Oak Street Municipality/Upper Tier: Cambridge/Waterloo OLT Case No.: OLT-23-000002 OLT Lead Case No.: OLT-23-000002 OLT Case Name: Piotrowicz v. Cambridge (City)

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

Applicants/Appellants: Michael and Halina Piotrowicz Subject: Minor Variance Description: To facilitate creation of a new lot and construction of two new single detached houses Reference Number: A63/22 Property Address: 91 Oak Street Municipality: Cambridge/Waterloo OLT Case No.: OLT-23-000003 OLT Lead Case No.: OLT-23-000002 OLT Case Name: Piotrowicz v. Cambridge (City)

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

Applicants/Appellants: Michael and Halina Piotrowicz Subject: Minor Variance Description: To facilitate creation of a new lot and construction of two new single detached houses Reference Number: A64/22 Property Address: 91 Oak Street Municipality: Cambridge/Waterloo OLT Case No.: OLT-23-000004 OLT Lead Case No.: OLT-22-000002 OLT Case Name: Piotrowicz v. Cambridge (City)

Heard: April 24, 2023, by video hearing

APPEARANCES:

Parties Michael & Halina Piotrowicz

Counsel James Renick

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON APRIL 20, 2023, AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Michael and Halina Piotrowicz (“Applicant/Appellant”) against the decision of the Committee of Adjustment (“COA”) for the City of Cambridge on December 14, 2022, in relation to the refusal of applications for consent approval and minor variances to permit the creation of a new lot and the construction of two new single detached houses at Plan 458, 91 Oak St., Cambridge, Ontario (“subject lands” / “subject property”).

2The subject lands are located on the south side of Oak Street, west of Lincoln Avenue. The land is designated low / medium density residential in the City’s Official Plan and zoned R4 residential.

3The variances being sought from Zoning By-law 150-85 would permit minimum lot frontages of 9.094 m and 10.97 m whereas the by-law requires a minimum of 12 m. In addition, the proposal includes lot coverages of 42.8% and 45.41% whereas the by-law permits a maximum of 40% lot coverage. Finally, a side yard setback of 0.6 m was requested whereas the by-law requires a minimum of 1.2 m.

4In its decision the COA indicated that they considered staff recommendations, and oral comments by neighbours and the Applicant. They indicated that they refused the application as they were not satisfied that a plan of subdivision was not necessary. In addition, they indicated that while the application does provide an opportunity for intensification, they felt it failed on two of the four tests required for the approval of minor variances. Specifically, they felt the variances required are not desirable or appropriate given the heritage elements of the street and that they were not minor in nature.

LEGISLATIVE CONTEXT

5The Tribunal notes that this appeal is pursuant to s. 45 of the Planning Act (“Act”), is a hearing de novo, and the onus of establishing that the four tests under s. 45(1) of the Act are met is incumbent on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1.(1). The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”), and under s. 3(5) of the Act, must conform with any provincial plans that are in effect.

6Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

• Maintain the general intent and purpose of the Official Plan (the “OP”);
• Maintain the general intent and purpose of the ZBL;
• Are desirable for the appropriate development or use of the land, building or structure, and;
• Are minor in nature.

THE HEARING

7Upon the commencement of the hearing, Party representation was confirmed. Mr. Renick, attended as counsel for the Applicant/Appellant. The City did not participate in the hearing.

8The Tribunal received four applications for Participant Status and reviewed the rules pertaining to this status. Upon consent of the Party, the following individuals were granted participate status in the matter before the Tribunal:

1. A. da Silva
2. L. Martins
3. R. Savory
4. Z. Troop

9It was noted that a letter was received from Mr. Joe Lancaster, but it did not include a request for official participant status.

10The Tribunal received and marked the following documents as Exhibits to the Hearing:

• Exhibit 1: Appellant Document Book
• Exhibit 2: Appellant Witness Statement of Scott Patterson
• Exhibit 3: Municipal Record

11The Appellant asked that Mr. Patterson be qualified as a witness. Mr. Patterson is a Registered Professional Planner and is a full member of both the Canadian Institute of Planners and the Ontario Professional Planners Institute. He provided a copy of his Curriculum Vitae and an executed Acknowledgement of Expert’s Duty. He also indicated that he has appeared before the Ontario Municipal Board, the Local Planning Appeal Tribunal and the Ontario Land Tribunal on numerous occasions and has previously been qualified to provide expert land use planning opinion evidence by each of these bodies.

12After reviewing Mr. Patterson’s professional qualifications and confirmation of Acknowledgement of Expert Duties, the Tribunal, qualified Mr. Patterson to provide expert opinion evidence in the field of land use planning.

AREA CONTEXT

13Mr. Patterson provided an overview of the subject property and the general land use and housing design in the area. He shared an aerial photo and noted it is an area of single detached homes that are single to two story in design. He noted that behind the subject property there are some larger homes. He indicated that the subject property had a non-conforming duplex until approximately September 2022. Since that time, the building on the property was removed to prepare the property for new development.

14The subject property is designated “Low/Medium Density” in the City’s Official Plan (“OP”). This designation identifies where a municipal water supply and wastewater system are currently available and may be used for such uses as single detached dwellings, townhouses and/or walk-up apartments. He noted that the subject property is zoned “R5” in ZBL 150-85 which permits the use of severed and retained lands for a detached one family dwelling. Zoning in the area is both “R4” and “R5”.

EVIDENCE

The Planning Act

15Mr. Patterson opined that the proposal has appropriate regard for matters of provincial interest set out in s. 2 of the Planning Act and does not conflict with the matters of provincial interest. Specifically, it was his opinion that the project is a well-designed built form on a property that has been identified for limited growth and development and represents an orderly and efficient development on full municipal services.

16With respect to the consent application, Mr. Patterson referred to Section 51 (24) of the Planning Act and provided comment on the criteria as they pertain to this application. It is his opinion that the proposal has met all of or does not conflict with this criterion. He believes that the proposal has regard for provincial interest and is in the public interest. He noted that the new lot fronts onto and has direct access to a public roadway and is on land that is suitable for the intended use. The proposal includes appropriately sized lots and will provide a modest increase in housing availability.

PPS

17It was also Mr. Patterson’s opinion that the proposal is consistent with the PPS. The PPS encourages establishment of healthy, liveable and safe communities, and requires that sufficient land be made available to accommodate an appropriate range and mix of land uses to meet projected needs.

18Mr. Patterson also noted that Section 1.1.3.1 states that “settlement areas shall be the focus of growth and development” and it is his contention that the subject property is within the designated settlement area of the City.

19Further, Mr. Patterson referenced Section 1.1.3.2 and suggested that the proposed development supports the efficient use of land, infrastructure, and is supportive of active transportation. He further opined that Sections 1.1.3.3, 1.1.3.4, 1.1.3.5, and 1.1.3.6 also support the application.

20It was Mr. Patterson’s summary opinion that the proposal is consistent with the PPS as it represents a form of gentle intensification and is an effective redevelopment option for an underutilized property that has been identified for growth and development and represents an orderly and efficient development that will occur on full municipal services.

A Place to Grow - Growth Plan for the Greater Golden Horseshoe (“GP”)

21The GP is a long-term growth plan that works with other provincial plans to provide a framework for growth management in the Greater Golden Horseshoe Region.

22Mr. Patterson expressed the opinion that the proposal conforms to the GP in that the development supports a range and mix of housing options and supports modest growth in the delineated built-up area and in an identified settlement area. He supported this position with references to s. 1.2.1, 2.2.2, 2.2.2.2, and 2.2.2.3 of the GP.

Region of Waterloo Official Plan 2010 (RWOP)

23Mr. Patterson informed the Tribunal that the subject property is designated in the RWOP as “Built-Up Area” and is located within the Urban Area Boundary.

24Mr. Patterson opined that the Proposal conforms to the RWOP as it is an appropriate redevelopment of the subject property with a use that has been deemed suitable for the area and that is permitted by the applicable planning documents.

25Specifically, he supported this position through references to Section 2.B which states that “…a substantial portion of this growth is directed to the existing Built-Up Area of the region through reurbanization.” He then referenced Section 2.C which refers to new residential development occurring within the built boundary and counts toward the achievement of the reurbanization target set out in the RWOP. Further in Section 2.C.2 of the RWOP a minimum of 45 percent of all new residential development is to be constructed in the Built-Up Area.

26It is also the opinion of Mr. Patterson that the application supports the implementation of Sections 2.C.3 and 2.D.1 and the goals set out in Section 2.C.2 related to reurbanization.

City Of Cambridge Official Plan (OP)

27Mr. Patterson told the Tribunal that the OP was adopted by the City and approved by the Region in 2012. The OP included changes to Provincial Planning Policy including the PPS and the GP. He also said that the OP accounted for all major policy items as a result of the RWOP.

28Mr. Patterson referred to Map 2 of the OP which he noted confirms that the subject land is within a low/medium density designation which applies to a large portion of the City Settlement area. Further, he referred to Policy 2.6.1. which says that intensification is encouraged throughout the built-up area of the City.

29Mr. Patterson contends that the Proposal conforms with the Policies of the OP. It is his position that an alternative approval (subdivision or condominium) is not warranted or required, and that the Proposal will not restrict the ultimate development of adjacent properties. He indicated that the criteria related to a plan of subdivision were given consideration but both the severed and retained lot will have frontage on a public street, and full municipal services would be available.

30Mr. Patterson believes that the definition for ‘compatible’ in the OP is relevant to this proposal. The definition is as follows: “development that, although it is not necessarily the same as or similar to existing buildings or uses in the vicinity, nonetheless exists in harmony with or enhances an established community. The development will not have a physical or functional adverse impact on surrounding properties”.

31Mr. Patterson also opined that the definition provided in Chapter 13 of the OP supports the proposal in that it defines intensification as ‘the development of a property, site or area at a higher density than currently exists through: redevelopment, including reuse of brownfield sites; the development of vacant and/or underutilized lots within previously developed areas; infill development; or the expansion or conversion of existing buildings.’ It is his opinion that the subject property is an underutilized lot, with the potential to be redeveloped and achieve a net increase in residential units and accommodation.

Zoning By-law No. 150-85 (“ZBL”)

32Schedule K11 of the ZBL indicates that the subject property is zoned “R5” and the regulations are set out in Section 3.1.2. Permitted uses include a detached, one-family dwelling or a residential special care facility.

33Mr. Patterson reviewed an aerial photo of the proposed lots and those nearby and offered his opinion that based on the lot fabric of the area, and particularly the existing lot fabric on the southside of Oak Street, he suggested that the retained and severed parcels are similar in lot area and frontage to what exists now. He noted that the building plans put forward by the owner illustrate that each new lot can be developed with a new home with a garage and driveway and ample yards.

34It was his opinion that the rear yard setback requested is minor in nature and still provides sufficient rear yard area for each of the proposed homes.

35Mr. Patterson explained that the intent is for the side yard reduction to only apply to the interior side yard of each new lot where they meet. The required side yard setback as required by the ZBL would still be applicable where the new lots abut existing lots. This would also allow rear yard access to be maintained. He also noted that the form of development will utilize flat roofs which avoids typical encroachments into the interior side yard areas that would typically occur from eaves and gutters.

36Mr. Patterson noted that the City staff report for the application recommended not allowing a fence or accessory structure to be constructed in the reduced interior side yard area so as not to restrict access to those areas. Mr. Patterson indicated that he supports that recommendation.

37Mr. Patterson contended that the lot coverage variance is also minor in nature from what is currently permitted in the “R5” zone. He opined that Section 2.1.11.1(b) (d) of the ZBL allows accessory uses to occupy up to 10% of the lot area, combined with the primary building of not more than 40% coverage. He noted that through discussions with City staff that it was agreed that a condition be imposed that would limit the maximum lot coverage for each lot to be 50% total which would be inclusive of both the primary dwelling and any accessory building.

City Staff Report and Conditions

38Mr. Patterson referred to the City Staff report (Exhibit 3, Municipal Record) that was provided to the COA at their meeting on December 14, 2022 in support of his opinion on the Proposal. In the report, City Planning staff recommended approval of the consent and minor variance applications subject to specific conditions. Mr. Patterson indicated that he had no objections to the conditions recommended by staff.

Participant Statements

39Several concerns were raised by participants with respect to the proposal. They included, but were not limited to: building height, sunlight, privacy, on-street parking, architectural design, safety and heritage character of the street.

40Mr. Patterson indicated that he reviewed the participant concerns provided to the Tribunal as well as those raised during the Municipal process. He indicated that the concerns that fall within municipal and provincial statutes have been reviewed with City Staff and it is his opinion that the proposal is consistent with the intent of the statutory requirements. He referred the Tribunal to the Staff report regarding a number of these items and specifically indicated that no variance from the ZBL was required for parking and that the height and design of the buildings comply with regulations. He noted that the proposed buildings would be three storeys with flat roofs which compares in height to the two-story buildings with pitched roofs currently in the neighbourhood.

Summary

41In his summary comments, Mr. Patterson emphasized that planning in Ontario is a provincial policy-led system established through the provisions of the Planning Act, the PPS and other provincial plans as applicable. He indicated that he is of the opinion that the proposal is consistent with the Provincial policies and conforms to the RWOP and the OP.

42Mr. Patterson also opined that the lot creation satisfies the criteria of s. 51 (24) of the Planning Act and the Minor Variances meet the four tests established through s. 45(1) of the Planning Act as well. It was Mr. Patterson’s contention that in order to implement provincial and local policy, change needs to occur and active steps need to be taken to ensure this happens. It is for this reason, he believes the City Staff was also in support of the Proposal.

ANALYSIS AND DISPOSITION

43The Tribunal has carefully considered all of the evidence including documents filed as well as the submissions by participants. The Tribunal is satisfied based on the evidence of the Appellant’s expert witness, Mr. Patterson and the Planning Report from City Staff that the development proposal satisfies the criteria of s. 51(24) of the Planning Act and meets the four tests as per s. 45 (1) of the Act. The Tribunal is satisfied that the proposal represents good planning and is in the public interest. The Tribunal is also satisfied that the proposed development is consistent with the PPS, and conforms to the policies of the GP, RWOP and the general intent and purpose of the OP and ZBL. The details and reasons are set forth below.

44The Tribunal finds the requested consent is consistent with the lot area and frontages of other properties on Oak St and area. The lot area and frontages are in keeping with the general intent and purpose of the OP and ZBL and the Tribunal considers them minor in nature given the context of the surrounding area and the intended land use.

45The Tribunal concurs with the Appellant’s planner and the City staff that a plan of subdivision is not required for the orderly development of the site. It is noted by City Staff that the subject lot has approximately twice the frontage of other parcels on the south side of Oak St. and will fit into the established pattern. It is also of note that both lots will have direct access to an existing street, have on sight parking and direct access to municipal services.

46The Tribunal also notes that there were no concerns for this application expressed by other City departments, Regional staff, Municipal Service Departments, or the Grand River Conservation Authority

47The Tribunal finds the requested variances maintain the general intent and purpose of the OP and are in keeping with the nature of development in the surrounding area with no resulting adverse effects.

48The Tribunal also recognizes the importance of the alignment in planning opinion between Mr. Patterson and City Staff. It is clear from the proposal that both have considered existing properties in their attention to setback, height, building placement/coverage, on-site parking and fencing requirements.

49The COA decision referenced ‘heritage elements’ of the neighbourhood as a reason the application was refused. The City Staff report did not raise this concern in their report nor did Mr. Patterson which lessens its significance for the Tribunal.

50The Tribunal has considered the concerns raised by the Participants and find that they are being appropriately addressed either by the Applicant or through the required conditions identified by City Staff. Further, the Tribunal concurs with Mr. Patterson’s position that the infill nature of the proposed development is a form of cost-effective development contributing to the minimization of land consumption and servicing costs and will incorporate building practices that are inclusive and accessible.

51The Tribunal concurs with the City Staff Report and recommendations provided to the COA and specifically with the summary statement below:

“The proposed development is an appropriate response to a lot well suited to severance, the resulting lot pattern being more in keeping with Oak Streets lot pattern than exists today. Similarly, the proposed houses are in keeping with the type of structure anticipated on smaller R5 lots. The impact the variance has is directed internally to the project. Taken as a whole staff consider the application to be minor in nature, reflecting a form of gentle density appropriate to an area commonly featuring detached homes on small lots.” (Exhibit 3; Page 360)

52The Tribunal provided the following Orders verbally following consideration of the evidence and all other information pertaining to this appeal.

53Following issuance of the Decision, Counsel for the Appellant inquired about the process to pursue costs. He was directed by the Tribunal to review Tribunal Rule 23 for guidance in this matter and to then contact the Case Coordinator.

ORDER

54THE TRIBUNAL ORDERS that the appeal is allowed, and the provisional consent is to be given subject to the conditions recommended by the City of Cambridge Planning Staff and set out in Attachment 1 to this Order.

55THE TRIBUNAL ORDERS that the appeal is allowed and the variance(s) to By-law 150-85 are authorized subject to the conditions recommended by the City of Cambridge Planning Staff set out in Attachment 2 to this Order.

56The Panel may be spoken to should any issues arise with respect to the implementation of this Order.

“Gregory J. Ingram”

GREGORY J. INGRAM 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

City Of Cambridge Consent Application B88/22:

1. That prior to final approval, the owner/applicant submits a copy of the deposited reference plan indicating the boundaries of the parcels, any easements/rights-of-way and building locations, to the satisfaction of the Planning Services Division.

2. That a servicing plan be prepared, to the satisfaction of City of Cambridge Development Engineering, detailing the location of the existing and proposed services for each lot.

3. That a grading plan be prepared, to the satisfaction of City of Cambridge Development Engineering, for the overall development, including proposed locations of roof leaders, rear yard catch basins (if required) and swales.

4. We require a legal survey showing the existing property, existing easements, existing dwelling, existing hydro pole(s), anchors, secondary hydro wire-feed to the existing dwelling, proposed severance, proposed dwellings, proposed driveway, proposed electric plant. The survey must include dimensions. The Applicant is cautioned that a minimum clearance between the proposed driveway entrance and existing poles, guy wires and anchors are 1.5 metres.

5. The Applicant will be responsible for 100% cost to service the new lot. The Applicant will be responsible for all costs to re-locate or upgrade if required as a result of this Application. GrandBridge Energy (GBE) WILL NOT approve a severance on a lot with no service. As per Current Conditions of Service, latest edition, only one service per property is permitted. Allow MINIMUM 6 months for GBE to process an estimate.

6. All EASEMENTS (will be determined once satisfactory legal plan has been submitted) must be APPROVED and REGISTERED at customer’s cost.

7. Any new structures must meet current ESA and GBE clearances.

8. Applicant will need to enter into a subdivision agreement with GBE before clearance will be provided. Early consultation is recommended to avoid delays;

9. That prior to final approval, the owner/applicant submit the Regional consent review fee of $350.00;

10. A demolition permit is required for the demolition of the existing building;(if still applicable)

11. That the above conditions must be fulfilled and the document for conveyance be presented with the required fee of $260 for signing on or before December 14th, 2024, after which time this consent will lapse; and

12. That prior to final approval, the owner/applicant pay cash-in-lieu of parkland at 5% of the value of the severed land. The applicant shall provide an opinion of value from a qualified appraiser to the satisfaction of Realty Services, in determining the value of the severed land.

ATTACHMENT 2

City of Cambridge Variance Applications A64/22 & A65/22

1. An access permit through Transportation Engineering will be required prior to the removal of, alteration to or construction of any new accesses. The application for an access permit can be found on the City’s website at www.cambridge.ca;

2. A building permit is required for the proposed single detached dwelling construction;

3. That no fence be constructed in the area of reduced side yard setback;

4. That total lot coverage inclusive of any accessory structures permitted under the zoning by-law shall not exceed 50%.