Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 24, 2023 CASE NO(S).: OLT-22-004884

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

Applicant and Appellant: 1000272358 Ontario Inc. Subject: Minor Variance Description: To permit a reduction in the number of required parking spaces from eight to zero for the building proposed to contain 14 dwelling units Reference Number: A72-2022 Property Address: 28 West Main Street Municipality/UT: Welland/Niagara OLT Case No.: OLT-22-004884 OLT Lead Case No.: OLT-22-004884 OLT Case Name: 1000272358 Ontario Inc. v. Welland (City)

Heard: April 3, 2023 by Video Hearing

APPEARANCES:

Parties	Representative
1000272358 Ontario Inc	Josh McDougall (Paralegal)
City of Welland	Did not attend

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by 1000272358 Ontario Inc. ("Appellant") pursuant to s. 45(12) of the Planning Act ("Act") against the decision of the City of Welland ("City" or “Welland”) Committee of Adjustment (“CofA”) denying an Application for Minor Variance (“Application”) for the property municipally known as 28 West Main Street (“Subject Property”).

2The Subject Property is developed with a vacant, three-storey commercial building at the northeast corner of West Main Street and Niagara Street in downtown Welland. The Subject Property is adjacent to commercial uses to the north, west, and south, and a City-owned laneway to the east. East of the laneway is the Welland Recreational Canal with West Main Street extending east across the Welland Canal Bridge 13 and connecting to East Main Street.

3The building occupies approximately 95 percent of the Subject Property with no land available for on-site parking. A long-standing but informal arrangement with the City has afforded the building the use of seven existing parking spaces located on City-owned land on the east side of the building. It is intended that this parking arrangement continues with the benefit of an agreement to be entered into with the City.

4The Appellant is proposing to retrofit the existing building, together with a small addition, to provide for 14 residential units occupying 100 percent of the building floor area.

5The Subject Property is designated ‘Downtown’ in the City’s Official Plan (“COP”), which permits low, medium, and high-density residential uses. The property is zoned ‘Downtown Mixed Use Centre’ (“DMC”) in the City’s Zoning By-law No. 2017-117 (“ZBL”). The DMC zone permits the proposed residential use, however, there are associated parking requirements and restrictions related to the location and percentage of residential use permitted on the ground floor, requiring the need for the Application.

MINOR VARIANCE APPLICATION

6To implement the proposal, the Appellant sought relief from the ZBL through the submission of the Application, requesting relief from the parking requirements, and the ground floor residential use restrictions as follows:

• “[t]o permit a reduction in the number of required parking spaces from 8 to 0 for the building proposed to contain 14 dwelling units”;
• “[t]o permit dwelling units to occupy 100 percent of the ground floor of the existing building in the Downtown Mixed Use Centre Zone instead of the maximum 75 percent”; and,
• “to permit the street front portion of the existing building to be used exclusively for residential uses instead of non-residential uses”.

7The Application was heard by the CofA on November 16, 2022, and was supported by a recommendation from the City Planning and Development Services Department that the Application be approved with conditions. Two neighbouring property owners spoke in opposition to the Application at the CofA hearing. A motion to deny the Application was carried, resulting in the denial of the Application for the reason that, in the opinion of the CofA, it did not meet any of the four tests of a minor variance.

8It is the Tribunal’s understanding that the current development proposal would also require Site Plan approval by the City for the addition. The Site Plan application had not yet been submitted by the Appellant at the time of the Tribunal hearing and was not before the Tribunal.

PARTY / PARTICIPANT STATUS

9The City did not take part in the Appeal and there were no requests for Party or Participant status.

LEGISLATIVE FRAMEWORK

10An appeal pursuant to s. 45(12) of the Act is a hearing de novo. In this case, the Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) of the Act have been met. These tests are summarized as follows:

• Do the variances maintain the general intent and purpose of the Official Plan?
• Do the variances maintain the general intent and purpose of the Zoning By-law?
• Are the variances desirable for the appropriate development or use of the land, building or structure? and,
• Are the variances minor in nature?

11In carrying out its responsibilities under the Act, the Tribunal shall have regard to matters of provincial interest as set out in s. 2 of the Act, and, while making its decision related to a planning matter, the Tribunal shall have regard to the decision of the City and the information it considered in accordance with s. 2.1(1) of the Act.

12In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter shall be consistent with policy statements issued by the Province and shall conform with provincial plans. In this case, the Tribunal’s decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).

WITNESSES

13Cory Froc, a Director of the Appellant, was called as a lay witness to provide evidence related to the history and processing of the Application.

14In support of the proposal, Leigh Whyte was qualified to provide land use planning opinion evidence.

15Taylor Meadows, Acting Development Planning Supervisor for the City, was to appear as a witness under summons but did not attend the Tribunal hearing for the reason that the summons could not be served.

LAY EVIDENCE

16Mr. Froc advised the Tribunal that the building has been ‘derelict for decades’ and vacant for several years. He attended a pre-consultation meeting and subsequent meetings with City staff with only positive feedback throughout the processing of the Application. Mr. Froc proffered that all commenting departments and agencies offered no objection to the Application and that the Staff Report to the CofA recommended approval of the Application as, in City staff’s opinion, it met the four tests of a minor variance.

17Mr. Froc read the recommendation from the Staff Report, including the reason for the recommendation being that the Application ‘welcomes intensification to the Downtown providing variation of dwelling unit sizes that is easily accessible by public transit’, ‘is permitted in the DMC zone and required parking will be provided off-site’, ‘effectively utilizes the existing building and infrastructure’, and will ‘continue to function as it has in the past in regard to parking configuration’.

18Mr. Froc submitted that the proposal adds value to the City by enhancing the downtown core with 14 residential units, providing an increase in the local customer base for proximate commercial businesses. He surmised that the variance to the parking requirement may have been misunderstood by some of the neighbouring property owners who spoke in opposition to the Application in that they may not have been aware of the parking arrangement with the City.

PLANNING EVIDENCE

19Mr. Whyte provided the Tribunal with land use planning opinion evidence in support of the Application. His testimony was supplemented with his Planning Justification Letter (“PJL”) dated March 17, 2023, prepared and submitted for the Appeal before the Tribunal.

20Mr. Whyte described the intersection of Niagara Street and West Main Street as the centre of historic downtown Welland, with the existing building on the property as iconic and proffered that he grew up in the City and is very familiar with the site and the surrounding community. He described the use of the building as underutilized with the most recent retail use having closed several years ago and the building having remained vacant since.

21Mr. Whyte advised the Tribunal that the minor variance related to the reduction in the number of required parking spaces from eight to zero would be mitigated by the continued use of the City-owned land to the east, which would be formalized through an agreement with the City to secure the parking spaces for the exclusive use of the building and that the agreement would be required as part of the Site Plan application.

22Mr. Whyte described the land uses in the area as being both operational and vacant commercial uses on the ground floor with one or two residential units above in some cases, mainly along Niagara Street and west along Main Street West with the Subject Property located at a high-profile location at the corner of these two streets.

23Mr. Whyte continued with a review of the relevant sections of the Act as well as the planning policy documents of the Province, the Region of Niagara (“Region”) and the City including the PPS, the Growth Plan, the Region Official Plan (“ROP”) and the COP, as well as the ZBL.

The Act

24With respect to s. 2 of the Act, Mr. Whyte opined that the Application has regard to matters of provincial interest as: the existing structure is historic to the area and the proposal would allow for the preservation and reuse of the existing building and architecture; the proposed use would be an efficient use of existing infrastructure, represent orderly development and be an opportunity for intensification; the ground floor of the building is proposed to be accessible for persons with disabilities on the Niagara Street frontage; the reuse of the property is expected to provide affordable housing; the location is proximate to transit routes; and, the built form is oriented to pedestrians and encourages active transportation.

PPS

25In consideration of the PPS, Mr. Whyte opined that the proposed reuse of the existing building would contribute to an efficient land use pattern and a range of housing types in the community, including affordable housing. Additionally, he opined that the proposed development promotes transit-supportive intensification, would improve accessibility for older persons and persons with disabilities, would aid in the revitalisation of the area with residents patronizing neighbouring businesses, and would be an example of an adaptive reuse optimizing existing infrastructure and services.

26It was Mr. Whyte’s concluding opinion that the Application is consistent with the PPS.

Growth Plan

27Mr. Whyte opined that the Application addresses the guiding principles of the Growth Plan as it will contribute to the achievement of complete communities through increasing the supply and range of housing within an established neighbourhood and allow for intensification of an underutilized site that is municipally serviced and within the urban boundary. Additionally, it would provide a residential component to the neighbourhood to help support local businesses, make efficient use of land and infrastructure and support transit viability and active transportation.

28With respect to the Growth Plan policies pertaining to managing growth, Mr. Whyte outlined that the Growth Plan directs growth to settlement areas that have a delineated built boundary, have existing or planned municipal water and wastewater systems, and can support the achievement of complete communities. He proffered that the City has a delineated built boundary and the Subject Property is situated within the settlement area in the heart of the downtown neighbourhood and serviced with full municipal services.

29Mr. Whyte concluded that, based on his review, the Application is consistent with the Growth Plan.

ROP

30Mr. Whyte advised the Tribunal that the ROP was in force at the time the Application was submitted and, notwithstanding a new Official Plan was approved in November 2022 and is now in force, the ROP is the applicable regional policy document for consideration of the Application. He added, however, that the proposed development is supported by both the ROP and the new Official Plan.

31Mr. Whyte proffered that the Subject Property is within the Urban Area Boundary and is designated Built-Up Area in the ROP.

32Mr. Whyte stated that the Application supports the growth management objectives of the ROP, which directs the majority of growth to the existing urban areas with a significant portion to be provided through intensification. He proffered that the Application contributes to the overall objective of intensification, contributes to the range of housing types, supports the viability of existing commercial activity, and promotes the efficient use of existing municipal services. He suggested that a decrease in the parking requirement will help reduce dependence on the automobile and will support public transit usage and encourage active transportation.

33Mr. Whyte advised the Tribunal that the Region offered no objection to the Application and opined that the Application conforms to the policies of the ROP.

COP

34Mr. Whyte reviewed the community strategic directions in the COP related to complete communities, indicating that the COP provides direction to provide for a full range of housing types including affordable housing as well as encouraging “planning and design which helps all citizens to achieve independence and dignity”. He opined that providing apartment units, with some accessible on the ground floor, will help to meet this strategic direction.

35In his PJL, Mr. Whyte reviewed the growth management, intensification and downtown land use policies of the COP and opined that the proposed development effectively implements all the objectives and policies. The policies direct “all urban growth to lands within the designated Urban Area Boundary” on land serviced with municipal water and sanitary services. The COP identifies the downtown as the City’s primary growth node and “encourages appropriately planned infilling and intensification within its Downtown”. Mr. Whyte stated that the Subject Property is within the downtown limits of the urban area, has municipal services, is an example of infilling and intensification, and represents an adaptive reuse of an existing underutilized building to provide affordable housing with accessibility to transit services.

36Mr. Whyte concluded that the existing form and proposed use of the Subject Property is very consistent with the strategic directions and downtown land use policies in the COP.

37The Staff Report also addressed the COP planning objective to increase residential development in the downtown and found that “the conversion to a fully residential building will bring variation to the downtown streetscape and bring more units and residential density to an area that can conveniently access the surrounding businesses and public transit for both working and living”.

ZBL

38Mr. Whyte opined that the Application is in keeping with other similar minor variance applications that have been approved by the City for properties in the downtown area proximate to the Subject Property, allowing for significant reductions in parking spaces and 100% residential use on the ground floor. He opined that the Application is in keeping with the intent and purpose of the ZBL as the use is permitted and the reduction to the parking space requirement is offset by the provision of seven parking spaces on the adjacent City-owned land.

Tests of a Minor Variance

39With respect to the four tests for a minor variance, Mr. Whyte opined that the variances meet the general intent and purpose of the COP and the ZBL as outlined in the paragraphs above.

40Mr. Whyte further opined that the variances are desirable for the appropriate development or use of the land as they will allow for additional residential units through repurposing an existing building that has been vacant for an extended period of time thereby contributing to the creation of a complete community with a mix of housing types.

41Finally, it was Mr. Whyte’s opinion that the variances are minor in nature as they provide for an adaptive reuse of the existing structure and the parking component on the abutting City-owned property would continue to provide suitable parking for the residential use.

Overall Opinion

42Mr. Whyte concluded with his opinion that the Application constitutes good planning and should be approved as it meets the four tests of s. 45(1) of the Act.

43The Staff Report recommended approval of the Application and concluded that “the proposed development will provide necessary housing inventory and variety with a focus on affordability and proximity to transit, commercial offerings and services” and “contribute to the revitalization of the Downtown core by bringing in more residents for vibrancy, employment, customer base and recreation”.

FINDINGS

44The Tribunal is satisfied, through the opinion evidence of Mr. Whyte, that the Application has regard to all relevant matters of provincial interest in s. 2 of the Act.

45The Tribunal concurs with the opinion of Mr. Whyte and finds that the variances, individually and collectively, are consistent with the PPS and conform to the Growth Plan in accordance with s. 3(5) of the Act.

46The Tribunal is satisfied that, through the opinion evidence of Mr. Whyte, the four tests for a minor variance are met for each variance in accordance with s. 45(1) of the Act.

47Further, pursuant to s. 2.1(1) of the Act, in making this Decision, the Tribunal has had regard for the matters considered by the CofA (including the submissions made by the neighbours and the Staff Report) and the decision of the CofA with respect to the variances.

ORDER

48THE TRIBUNAL ORDERS that the appeal is allowed and the variances to City of Welland Zoning By-law No. 2017-117 are authorized.

“C.I. Molinari”

C.I. MOLINARI 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.