Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 15, 2023
CASE NO(S).: OLT-22-002903
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: MFL Properties Inc.
Subject: Application to amend the Zoning By-law–Refusal of application
Description: To permit the property’s redevelopment with a three-storey building with three dwelling units (a triplex)
Reference Number: Z16-2021
Property Address: 17 Pine Street
Municipality/UT: Lambton Shores/Lambton
OLT Case No: OLT-22-002903
OLT Lead Case No: OLT-22-002903
OLT Case Name: MFL Properties Ltd. v. Lambton Shores (Municipality)
Heard: October 4-6, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| MFL Properties Inc. | Eric Davis |
| Municipality of Lambton Shores | Analee Baroudi |
DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The Tribunal convened a merit hearing in the matter of the appeal by MFL Properties Inc. (“Applicant”) against the denial by the Council of the Municipality of Lambton Shores (“Municipality”), on February 22, 2022, of a Zoning By-law Amendment (“ZBA”) proposed by the Applicant. These proceedings were commenced under s. 34(11) of the Planning Act (“Act”) and pertain to a development proposal for the property known municipally as 17 Pine Street in Grand Bend (“Subject Property”).
2The ZBA would re-zone the easterly portion of the property from “Residential 4 (R4)” to a site-specific “Residential 3-# (R3-#)” zone. This would allow for a residential redevelopment and intensification on the Property, specifically in the form of a triplex.
3As this was the first and only hearing event scheduled, the Tribunal confirmed that proper Notice was given and marked the Affidavit of Service as Exhibit 1 to the proceeding confirming the adequacy of Notice provided.
4In response to the Notice, Lambton Shores Community Association (“LSCA”) sought status as a Participant, and raised concerns on behalf of the community with respect to this proposal, indicating that it was inappropriate for the Subject Property, and would negatively impact one of Grand Bend’s major assets, which is North Beach along the lake towards Oakwood, and would also set a precedent for “similar massive and overbearing developments along the beach and elsewhere.” The Tribunal found that LSCA had an interest in the matter and would assist the Tribunal in understanding the potential impacts of the ZBA on the local community. As such, the Tribunal, without objection from the Parties, granted Participant status to LSCA.
DECISION
5For the reasons that follow, the Tribunal allows the appeal.
SITE AND AREA CONTEXT
6The Subject Property has an area of approximately 0.22 hectares (0.54 acres), with 18 metres (“m”) of frontage on Pine Street, and a depth of approximately 120 m. Currently, a detached concrete block garage is located about 6.6 m back from the street, with a two-storey cottage located behind the garage. The western portion of the Subject Property is comprised of undeveloped private sandy beach, and the rear lot line is directly adjacent to the public Grand Bend beach along the shore of Lake Huron. The Subject Property is serviced with full municipal services.
7The Subject Property is directly adjacent to a two-storey cottage and the Grand Bend public beach to the north; Pine Street to the east; a public pathway leading to the beach and a seven-storey condominium apartment building to the south; and the Grand Bend public beach to the west. There are single-family cottages all along the beach extending to Oakwood, a private community north of Grand Bend. The Subject Property is directly across the road from several smaller cottages along a narrow street. The lands to the east are predominantly comprised of an eclectic assortment of architectural stylings in a low-rise form. A two-storey multi-unit townhouse development is located at the intersection of Park Avenue and King Street (about 125 m from the Subject Property). On the abutting property to the north at 19 Pine Street, there are three separate dwellings (the same number of dwelling units proposed for the Subject Property). Moreover, at least one of the dwelling units at 19 Pine Street is used as a short-term rental for Grand Bend lifeguards and has been for many years.
8The public walkway abutting the Subject Property is a primary public access to the main beach. Additionally, the Subject Property is within walking distance (700 m) of a Huron Shores Area Transit stop at the intersection of Main Street and Ontario Street North, to the southeast of the Subject Property. This regional transit service provides connections from Grand Bend to Sarnia, Bayfield, London, and Ailsa Craig.
9Grand Bend itself plays a significant role as a provincial tourist destination. It is located on the shores of Lake Huron, north of the Pinery Provincial Park and on the Ausable River. There are many seasonal residents, but Grand Bend is also now evolving into a more stable full time residential community.
10The land use designations and zoning for the Subject Property are as follows:
a. Lambton County Official Plan (“County’s OP”): It is designated as an ‘Urban Centre’ (along with the surrounding community of Grand Bend) on Map ‘1’ – Growth Strategy of the County’s OP. Map ‘2’ – Natural Heritage System of the County’s OP identifies that the Subject Property is located within a ‘Primary Corridor’ (or ‘Group C Feature’), (along with the entire Grand Bend community). The letter ‘B’ on Map ‘2’ identifies that the Subject Property and surrounding area are part of the ‘Ausable River Valley & Wetland’.
b. Municipality of Lambton Shores Official Plan (“Municipality’s OP”): It is designated as ‘Residential’ on Schedule A1 of the Municipality’s OP, with a ‘General Regulation Area’ designation over the westernmost portion of the Subject Property, and a ‘Lakeshore Area 2’ designation over the vast majority of the Subject Property. The ‘General Regulation Area’ and ‘Lakeshore Area 2’ are also identified on Schedule ‘A1’ – Natural Heritage (Grand Bend), but no other Natural Heritage features are identified on or adjacent to the Subject Property.
c. Municipality of Lambton Shores Zoning By-law No. 1 of 2003 (“ZBL”): Schedule ‘A-1’ of the ZBL zones the eastern portion of the Subject Property as ‘Residential – 4’ (R4’) and the western portion as ‘Lakeshore’ (‘LS’). The ‘R4’ portion of the property has an area of approximately 783 square metres (“m2”), and the ‘LS’ portion has an area of approximately 1,417 m2, for a total of 2,204 m2. The ‘R4’ zone, which applies to most of the surrounding residential neighbourhood, permits single detached dwellings, modular homes, existing boarding houses, converted dwellings, and home occupations (s. 10.1). The ZBL was recently amended through a municipally-initiated amendment (By-law 56 of 2021) to reduce the maximum building height in the R4 Zone to 7.4 m for any portion of a permitted dwelling with a flat roof or with a roof pitch of less than a 4 to 12 rise to run ratio, and 9 m in all other instances (s. 10.2(h)). No buildings or structures are permitted in the ‘LS’ zone, except for those used for conservation, existing parking areas, marine facilities, parks, and passive recreation (s. 51.1).
d. Ausable Bayfield Conservation Authority: The northwestern portion of the Subject Property is located within an area regulated by the Ausable Bayfield Conservation Authority (“ABCA”), and identified as Dynamic Beach Lakeshore Policy Zones 0, 1, and 2 on Map 26 of the 2019 Shoreline Management Plan, prepared by ABCA, which provides detailed guidance on appropriate development in proximity to the lakeshore.
THE PROPOSAL
11The proposed Zoning By-law Amendment (“ZBA”) would facilitate the development of a triplex on the Subject Property to serve as a year-round residence (“Proposed Development”). All the existing buildings are to be removed. While only the ZBA was before the Tribunal, a Conceptual Site Plan, Floor Plans, and Building Renderings were provided for reference purposes.
12The plans showed a three-storey dwelling, with each storey forming one unit. The building footprint will be wholly located within the bounds of the existing residential zone and will not encroach into the ‘Lakeshore’ (LS) zone or the ABCA-regulated area on the northwest portion of the Subject Property. The ABCA had no concerns with the proposal.
13Specifically, the ZBA would re-zone the easterly portion of the Subject Property from “Residential 4 (R4)” to a site-specific “Residential 3-# (R3-#)” zone. No changes to the ‘Lakeshore’ zone of the Subject Property have been proposed. The following site-specific special provisions to the ‘R3’ zone are requested:
a. Minimum lot area of 785 m2, measured to only include the area zoned ‘R3-#’ as required by s. 3.9.3 of the ZBL;
b. Minimum rear yard setback of 2.5 m, measured from the northern limit of the ‘R3-#’ zone as required by s. 3.9.3 of the ZBL;
c. Maximum lot coverage of 45% (increased from 30% as outlined in the R4 zone), measured to only include the area zoned ‘R3-#’ as required by s. 3.9.3 of the ZBL; and,
d. Maximum building height of 10 m (increased by 2.5 m from what is currently permitted in the R4 zone as a result of a very recent amendment to the ZBL).
14Originally, the Applicant submitted an Application to the Municipality for a four-storey building. Based on feedback from the Municipality and the community, this application was revised in January 2022 to what was before the Tribunal, namely the three- (3) storey building. In addition to reducing the number of storeys, further reductions in building height were proposed that included removal of the rooftop patio and mechanical penthouse and the use of an alternative floor system to allow reduced heights between storeys. The Proposed Development now has a height of 9.8 m, reduced from 11 m, measured from the ground floor to the highest point of the building. The proposed building is now lower in overall height than the two-storey dwelling to the north and is less than the maximum height permitted for triplex dwellings in the proposed ‘R3’ zone (11 m).
15The Proposed Development before the Tribunal would have a ground-floor footprint of approximately 344 m2 (3,703 square feet). The rear upper portion of the dwelling would be “stepped back” from the lakeshore, so that the upper floor areas are reduced in size to 232 m2 (2,500 square feet) on the upper two floors, for a total floor area of approximately 808 m2. The building is set back approximately 14.8 m from the street line to facilitate parking in front of the building, a vehicle turn-around area, and to maintain the current access arrangement the neighbour has established to his abutting garage. Four at grade garage stalls are provided for the three units, with a second tandem parking space in front of the two middle stalls, for a total of six parking spaces (twice that required by the ZBL). There are to be eight bedrooms and eight bathrooms in total.
THE HEARING
16The main issue in this appeal is whether the scale and massing of the proposed building is too large for this lot. The Municipality did not take issue with the triplex use or the modern design, but took the position that the Proposed Development is an excessively large building. This view was shared by the Participant as outlined in its statement.
17The Applicant disagreed, indicating that much care has been taken to ensure that the Proposed Development, as modified, fits within the character of the neighbourhood. In support of this position, the Applicant called the following witnesses:
a. Jay McGuffin, a registered professional planner, qualified by the Tribunal, without objection, to provide opinion evidence in land use planning, who provided a detailed planning rationale in support of the proposed ZBA; and
b. Bradley Skinner, architect for the Proposed Development, qualified by the Tribunal, without objection, to provide opinion evidence in architecture, who described how the Proposed Development fits with the character of the area.
18In opposition to the appeal, the Municipality called Will Nywening, a registered professional planner, whom the Tribunal qualified without objection to provide opinion land use planning evidence. He provided a detailed rationale against the ZBA.
19Six issues were in dispute amongst the Parties, each discussed separately below.
Issue 1: Is the Proposed Zoning By-law Amendment (ZBA) Consistent With the Following Sections of the Provincial Policy Statement 2020?
1.7.1(e)
20Policy 1.7.1(e) of the PPS mandates that long-term economic prosperity should be supported by: “encouraging a sense of place, by promoting well-designed built form and cultural planning, and by conserving features that help define character, including built heritage resources and cultural heritage landscapes” [emphasis in original].
21In support of the ZBA, Mr. McGuffin testified that the ZBA, and the Proposed Development it facilitates, are consistent with the PPS as a whole and specifically with Policy 1.7.1(e). He explained that the Proposed Development, by providing additional housing opportunities in the community, would respond to an increasing market demand for housing, including in resort communities like Grand Bend where demand has increased partly as a result of a shift to work from home arising from the 2020 pandemic. Residents now seek housing opportunities that allow them to live and work in the same place, such as in Grand Bend. Mr. McGuffin added that the Subject Property is within immediate walking distance to the central commercial core of Grand Bend. Additional residents in the area, coming as a result of the Proposed Development, would serve to enhance the vitality and viability of the downtown main street. The Proposed Development would also represent a re-investment in housing stock in the community and neighbourhood, and would encourage a sense of place through a thoughtful, careful, and well-designed proposal that would provide integration into the natural grades and surrounding land uses with architectural details that draw on inspirations from existing and emerging local conditions, culture, and materials.
22The Municipality disagreed. In opposition to the ZBA, Mr. Nywening testified that the Proposed Development is not consistent with the PPS or Policy 1.7.1(e). He explained that the features that define the character of Grand Bend are the beachfront and the lake views, as well as the interaction between communities and the lake. The sheer size of the Proposed Development would compromise the lake view as well as the seaside resort feel of the beachfront, thereby conflicting with this PPS Policy.
Issue 2: Does the Proposed ZBA Conform to the Following Policies in the Upper Tier Lambton County Official Plan (“County’s OP”)?
2.1.4
2.1.5
2.3 goals
23Section 2.1.4 of the County’s OP states: “This Plan promotes a built form that is well‐designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant.”
24In support of the ZBA, Mr. McGuffin testified that the Proposed Development is well designed and encourages a sense of place. Moreover, it represents a high‐quality development that is safe, accessible, attractive, and vibrant.
25Mr. Nywening disagreed, testifying that the size of this building, which exceeds the average of all other buildings in the area, means that this Policy is not met. Mr. Nywening went into extensive details regarding the lots in the area, providing numerical comparisons between the existing dwellings and the Proposed Development, to show that the Proposed Development “exceeded dwelling average sizes by every measure.”
26Section 2.1.5 of the County’s OP states: “Patterns of development will be established so as to minimize disruption to existing and planned residential uses, protect the physical character and vitality of established neighbourhoods and communities, and to conserve cultural and natural heritage features and resources.”
27In support of the ZBA, Mr. McGuffin stated that the ZBA, and the Proposed Development it facilitates, conform to Policy 2.1.5 of the County’s OP, and would respond positively to the established pattern of development in the community. He relied on an examination of parcel mapping of the area to find that the Subject Property and the parcels south of it along the waterfront are significantly larger than the residential parcels to the north. He added that the scale, height, massing, and placement of the Proposed Development were carefully analyzed, and specifically crafted to respond to the existing built environment in the area, being respective of adjacent views, existing mature landscaping, public access, vehicular access, pedestrian access, the road network, and adjacent land uses. He opined that the proposal represents a reinvestment into an oddly sited and poorly maintained cottage. Moreover, it would serve to enhance the vitality of the established neighbourhood and support the eclectic character of the community, ranging from small post-war era cabins to mid‐century dwellings, to new homes and an increasing demand for modern architectural styling.
28In opposition to the ZBA, Mr. Nywening outlined some contextual policies in the County’s OP that emphasize quality of life, community sense of place, and the connection to built form, such as Policies 2 and 2.1. He explained that, similar to Policy 2.1.4, Policy 2.1.5 promotes a built form that encourages a sense of place and minimizes disruption to existing residential uses. The Proposed Development, due to its larger than average size, would not conform with these policies, and their intent would not be met.
29Section 2.3 – Housing Goals of the County’s OP states: “To ensure an active, healthy housing market that is able to provide a range of quality housing suitable to the needs and desires of the residents of Lambton County. To ensure new housing development does not detract from the viability of existing built-up areas.”
30In support of the ZBA, Mr. McGuffin stated that the Proposed Development would contribute to the range and quality of housing that is suitable to the needs of the community and its residents. Moreover, it would not detract from the viability of the existing built-up areas.
31In opposition to the ZBA, Mr. Nywening explained that the excessive scale of the Proposed Development would detract from the viability and character of the surrounding low-density residential area.
Issue 3: Does the Proposed ZBA Conform to the Following Policies in the Local Lambton Shores Official Plan (“Municipality’s OP”)?
2.2 Goals and Objectives
5.1 Communities and Neighbourhoods
5.4 Land Use and Design Policies
15.2.1 Form and Design
15.4.2 Grand Bend
32Section 2.2 – Goals and Objectives of the Municipality’s OP states:
…To foster strong, liveable and healthy communities which enhance social well-being and are economically and environmentally sound. Long-term prosperity, environmental health and social well-being will take precedence over short-term considerations and narrow interests.
To promote compatibility among land uses, in terms of scale, intensity of use and potential impacts.
To promote attractive and functional site and building design sensitive to the scale and character of surrounding land uses and cultural and heritage resources...
33In support of the ZBA, Mr. McGuffin stated that the ZBA conforms to the Municipality’s OP, including s. 2.2. Mr. McGuffin first indicated that this section outlines the goals and objectives of the Municipality’s OP and does not represent policy as contextualized in the issue. Regardless, he opined that the Proposed Development appropriately responds to the identified goals and objectives in that it would allow for re-investment in the community, promote land use compatibility at a key transitional location along the lakeshore (described in further detail below), effectively mitigate any potential for impact, and promote attractive and functional site and building design that is sensitive to the scale and nature of the surrounding land uses.
34In opposition to the ZBA, Mr. Nywening first explained that Grand Bend is a tourist destination and a gem in Ontario, as confirmed in s. 1.2.2 in the Municipality’s OP, and that the highlight of Grand Bend is its beaches and waterfront. The Subject Property is located in a highly visible area, due to its proximity to the public walkway with access to the beach. Thus, Mr. Nywening testified that the way in which this highly visible property develops is critical. In Mr. Nywening’s opinion, the Proposed Development, due to its size, would not meet the objectives of s. 2.2 of the Municipality’s OP.
35Section 5.1 – Communities and Neighbourhoods of the Municipality’s OP states:
Lambton Shores’ residents place a high value on their communities and neighbourhoods and the protection of community/neighbourhood character. The type and density of residential development, natural heritage features, open spaces, community facilities and the mix of land uses all contribute to the character and function of communities and neighbourhoods. The Official Plan meets the Municipality’s needs for housing through the protection and maintenance of existing communities and the development of new neighbourhoods that are planned and designed to reflect and preserve Lambton Shores’ best features. New developments are encouraged to be compatible with surrounding existing neighbourhoods and provide for a transition between existing lower density neighbourhoods and possible future higher density developments...
36In support of the ZBA, Mr. McGuffin stated that the Proposed Development (a triplex building at a medium density in the local context) would further the range and mix of uses in the neighbourhood and would be compatible with it as the residential neighbourhood also contains medium density developments, although on much smaller lots and representing a greater intensity of development. Moreover, it would serve as an effective transitional land use between the high-density seven-storey apartment building to the south and the lower-density residential neighbourhood to the north.
37In opposition to the ZBA, Mr. Nywening explained that, though not everything has to be the same, it is important to be careful about how neighbourhoods are developed. The Proposed Development would not be compatible with the neighbourhood character, according to Mr. Nywening, and therefore did not conform to s. 5.1. Moreover, he opined that, though this section indicates that new developments are to provide for a transition between existing lower-density developments and future possible higher density developments, the development at 9 Pine Street containing a seven- (7) storey condominium building (which the Applicant heavily relies on), is not a “future” higher density development, and does not provide justification for this proposal. 9 Pine Street would not be permitted under the current policy or zoning regime that has been more recently applied to this property by the Municipality. In fact, high-density developments are no longer permitted anywhere in Grand Bend (Policy 5.3 of the Municipality’s OP). While 9 Pine Street exists and cannot be disregarded entirely, the Municipality views this development as a past approval that should not be repeated or used as a precedent. Lastly, Mr. Nywening stated that there is no need for a transition at the Subject Property, discussed further below.
38Section 5.4 – Land Use and Design Policies of the Municipality’s OP states: “The following policies apply to “Residential” areas:
New development/uses will be compatible with the scale, density and character of existing surrounding land uses.
Preference will be given to residential intensification, infilling and redevelopment of under-utilized lands and obsolete uses over the development of “greenfields.” Intensification, etc. must not adversely affect surrounding uses.
Redevelopment of the older residential parts of Grand Bend, east and west of Ontario Street, is anticipated over the lifetime of the Plan.
All new development (see definition, Section 2.5) must comply with the community’s Community and Site Design policies and are subject to the Plan’s policies for Subdivision and Site Plan Control, as applicable.
39In support of the ZBA, Mr. McGuffin testified that the Proposed Development would be compatible with the scale, density and character of the existing surrounding land uses. Moreover, it would be subject to site plan and draft plan of condominium approval processes, as applicable, and as such, preference must be given to the proposed intensification and redevelopment proposal as anticipated, in accordance with s. 5.4.
40In opposition to the ZBA, Mr. Nywening explained that the scale and character of existing surrounding land uses consists of low-density and lower form medium density residential uses. As required by s. 5.4, infilling and residential intensification must not adversely affect surrounding uses. The size of the Proposed Development, however, will adversely affect the existing neighbourhood. While the municipality does anticipate redevelopment of the older residential parts of Grand Bend and is open to new designs and developments, it wants to ensure an appropriate scale of development.
41Section 15.2.1 Form and Design of the Municipality’s OP states:
New development should not obstruct views of natural features and landmarks.
New development in Grand Bend and downtowns across Lambton Shores is generally restricted to a maximum of three storeys.
The massing and conceptual design of new development should provide for continuity and harmony in architectural style with adjacent uses, especially those with cultural or natural heritage value.
42In support of the ZBA, Mr. McGuffin stated that the prohibition of obstruction of views is suggestive and not directive in this section. Despite this, significant care was taken in the design of the Proposed Development to ensure that views would be preserved. The Proposed Development has been revised to the suggested (not mandated) three- (3) storey height for new developments. Moreover, its massing and conceptual design take into account the continuity and harmony of the eclectic composition of architectural styles and massing of the surrounding uses, including the seven‐storey apartment building to the south, the two-storey dwelling situated on a higher elevation than the Subject Property to the immediate north, and the massing of the newly reconstructed dwelling (one of three dwelling units on that parcel) to the north at 19 Pine Street. Mr. McGuffin further testified that the positioning of the dwelling on the Subject Property will not impact the views of the water and beach from the adjacent seven‐storey apartment building or the views of the water from the abutting lands to the north. Of note, the properties most likely to be impacted by the Proposed Development would be those immediately to the east of the Subject Property, namely 16 and 18 Pine Street, whose owners (being or related to the Applicant) have submitted written support for the Proposed Development. Moreover, the Applicant submitted that the view of the lake on the Subject Property is already obstructed, and the Applicant could theoretically, without any law disallowing same, plant trees or erect a privacy fence that could completely remove any view of the lake from the neighbours.
43In opposition to the ZBA, Mr. Nywening explained that keeping buildings within an appropriate scale limits their impacts on views, as required by s. 15.2.1. In this case, the size of the Proposed Development would impact the view of the waterfront as well as the other elements of the beach. Mr. Nywening stated that, while there may be no automatic right to a view, the Municipality’s OP specifically protects views of natural features. This means that the protection of views is relevant in the context of considering whether the ZBA conforms to the Municipality’s OP. He acknowledged that any form of development will obstruct views to some degree, but the greater the structure, such as the Proposed Development, the more that view will be obstructed. Massing of new development should provide continuity and harmony in architectural style with adjacent uses, which this Proposed Development does not. Mr. Nywening pointed out that one additional step that could be taken to reduce massing is to reduce the overall gross floor area (“GFA”), but this has not been done in the case of the Proposed Development.
44Section 15.4.2 states that “…To maintain Grand Bend’s seaside village resort “feel”, future development is restricted to low and medium density development in low-rise buildings. Building heights are generally restricted to a maximum of three storeys, with building heights generally decreasing from Ontario Street to the lake to preserve views…”
45In support of the ZBA, Mr. McGuffin stated that the Proposed Development would be characterized as a medium density development in line with this section. The elements in regard to height are outlined in a general fashion and are not prescriptive in that they do not mandate that heights shall be limited to three storeys or that heights toward the water must be lower than those to the east. Regardless, the height of the Proposed Development would be three storeys. Mr. McGuffin further opined that the proposal would represent a transitional land use situated between a seven‐storey high-density residential development immediately south of the Subject Property to a medium density (three dwelling units on one property) two-storey development immediately to the north of the Subject Property on an elevated site.
46In opposition to the ZBA, Mr. Nywening testified that s. 15.4.2 of the Municipality’s OP must be met, as directed by s. 5.4 mentioned above. Moreover, he explained that the use of the word “generally” does not mean that this section can be ignored. Additionally, Mr. Nywening testified that there is nothing unique about this Subject Property, taken as a whole, to suggest that s. 15.4.2 would not apply. While the Proposed Development does meet the three- (3) storey height maximum, this section requires that developers must be conscious of height as lots get closer to the lake. Moreover, Mr. Nywening stated that the R4 zone restricts flat roof buildings to 7.4 m, and to go beyond the 7.4 m height restriction in the R4 zone on a lot that is located so close to the lake is not appropriate. While the Applicant has stated that the proposed building will be of a similar height to the building next door at 19 Pine Street due to the elevated grade at 19 Pine Street and the topography of the Subject Property, Mr. Nywening contended that, if ground elevation is taken into consideration when measuring height, others may also want to be excused from height restrictions using a similar argument. The geographical area contains steep changes in grade and such an argument could create an undesirable precedent.
Issue 4: Is the Proposed Development Compatible With the Surrounding Neighbourhood in Scale, Massing, and Character?
47In support of the ZBA, Mr. McGuffin testified that the Proposed Development is compatible with the surrounding neighbourhood in scale, massing, and character. Since it was modified, the Proposed Development would now be lower in overall height than the two‐storey dwelling to the north. Furthermore, due to a rather significant shift in topography at the location of the Subject Property, the Proposed Development would appear to be at the same height across the skyline as the existing dwellings in the low-density residential enclave further to the north (which are at a higher elevation of land). As is, the building would be less than the maximum height permitted (11 m) for triplex dwellings in the proposed ‘R3’ zone. Moreover, a building in an R4 zone could be up to 9 m in height, with a peaked roof, as of right. Lastly, the height of the proposed building on the Subject Property pales in comparison to the seven‐storey apartment building to the immediate southwest. Though the seven‐storey apartment building was down‐zoned, it will remain a focal point to the community and a predominant fixture in the Grand Bend landscape.
48Mr. Skinner, architect, testified that the Proposed Development has been designed to be compatible with the scale, massing, and character of this eclectic neighborhood and specifically to existing site and surrounding building conditions. As indicated above, the Municipality did not produce a witness on architecture or design matters, and thus, Mr. Skinner was the only expert before the Tribunal in this field. Mr. Skinner’s stated that:
a. The Applicant’s vision and complex site conditions informed a building design sensitive to its surroundings.
b. The surrounding neighborhood has a variety of different scale buildings that vary in mass and character. These include small older cottages, contemporary larger modern style homes, and ones in between.
c. The Proposed Development strives to blend beauty and originality in design, reflecting both its geographic location and cultural context, while employing form and material to express proportion and a scale in harmony with its setting. Mr. Skinner highlighted the materials to be used and how they complement the natural surroundings and cultural context of the area.
49However, though compatible with the surrounding neighbourhood, Mr. McGuffin also indicated that this Subject Property must be considered in light of its particular characteristics, which distinguish it from its surrounding lots:
a. The Subject Property is a point of transition between the seven‐storey apartment building to the immediate southwest and the cluster of two‐ and one‐storey dwelling units on the lots immediately to the north. This is discussed in further detail below.
b. At 0.22 hectares, the Subject Property is significantly larger than the low-density lots to the north and the typical residential lot sizes in the surrounding community. The Subject Property is more than twice the size of the lot at 19 Pine St. (~873 m2) and extends significantly further toward the lakeshore. Further north, lot sizes decrease with 23 Pine Street being approximately 608 m2 in area and 25 Pine Street approximately 765 m2 in area. To the east, the lots are smaller with 16 Pine St. only approximately 230 m2 in area and 18 Pine St. only about 193 m2 in area, both a fraction of the lot area of the Subject Property. Thus, it offers sufficient opportunity to accommodate the required parking, living, and amenity space required for a multi‐unit development such as the triplex proposed. Of note, Mr. Nywening agreed, in cross-examination, that the size of the Subject Property is in the “top 10” residentially zoned properties in Grand Bend.
c. The Subject Property is split zoned. The easterly end of the Subject Property is zoned R4, while a larger portion of the Subject Property to the west is zoned Lakeshore (LS). In accordance with s. 3.9.3 of the Municipality’s ZBL, when a lot is divided into more than one zone, each portion of the lot shall be considered separately for the purposes of calculating zone provisions. In the case of the Proposed Development, if lot coverage were calculated over the entire Subject Property, lot coverage would be reduced to 15.6%. However, since the LS zone cannot be considered in the calculation, in accordance with s. 3.9.3, the proposed lot coverage becomes 45%. In cross-examination, Mr. Nywening stated that he was unaware of any other split zoned parcels in his lot analysis of the area.
50In opposition to the ZBA, Mr. Nywening testified that the proposed zoning amendment would permit a structure that is grossly out of scale with existing development and inappropriate in the context of the surrounding community. He opined that this would be a massive building that would not align with the beach village resort “feel” of Grand Bend. It would be out of scale and character with both the surrounding single detached dwellings and the two modest, low-rise medium density buildings in the area. Mr. Nywening explained that, through the minor variance process, the Municipality had recently capped lot coverage requests at 40% for the most part, and had only allowed for higher lot coverages in the context of very small lots that could not otherwise accommodate even a modest dwelling. To permit a lot coverage of 45% for such a large lot would establish an undesirable precedent for this area that is contrary to the demonstrated intentions of the Municipality to limit the scale of development in this area. In addition, Mr. Nywening provided evidence comparing the scale of the proposed building with other buildings in the area. Through this quantitative review, Mr. Nywening concluded that the proposed building is excessively large in comparison to all other buildings in the area that were included in the review. Even the largest structure in the study had only 4,000 square feet in GFA. The GFA for this Proposed Development would be more than double that. The fact that this is an eclectic community does not mean “anything goes,” and there is still a range of sizes for dwellings that should be considered when determining whether the proposed dwelling will be compatible with the character of this community.
51The Applicant had relied on 19 Pine Street and 9 Pine Street, to which Mr. Nywening responded:
a. 19 Pine Street: This property contains three (3) dwelling units, but their aggregate lot coverage is 24%, which is lower than what is being proposed here. The buildings on 19 Pine Street are all of a much smaller size than what is being proposed. Moreover, though the owner of 19 Pine Street could potentially build an 8200-square-foot building on the lot, it is not reasonable (and is contrary to the OP) to look at character though the lens of what the neighbourhood could look like if everyone built out to the maximum zoning permitted. In fact, most of the surrounding properties have built to less than the limits that the ZBL allows. (However, on cross-examination, Mr. Nywening agreed that, on average, newly constructed / renovated dwellings are constructed larger and dwellings closer to the lake are bigger.)
b. 9 Pine Street (seven-storey apartment building): This building is an outlier with respect to the character of the neighbourhood. This development was approved over thirty (30) years ago, and as explained at paragraph [37] of this Decision, would not be permitted under the Municipality’s current policy or zoning regime. The current OP policies do not permit high-density developments and also direct that building heights should decrease as they get closer to the Lake (s. 15.4.2 discussed above). Thus, 9 Pine Street should not be repeated or used as a precedent.
52With respect to the dual zoning issue, the Municipality’s position and Mr. Nywening’s testimony were that the only exceptions to s. 3.9.3 of the ZBL are that when a portion of a lot is zoned Environmental Protection or Natural Conservation, such portion may be included in determining zoning regulations. The Lakeshore zone is not listed as an exception to s. 3.9.3. Thus, the area zoned Lakeshore on the Subject Property is entirely irrelevant for the purpose of calculating zoning regulations. To accept the Applicant’s position that the lot coverage for the proposed development will be 45% if calculated in accordance with s. 3.9.3 but that the lot coverage is really 15% if you include the portion zoned Lakeshore, would be to undermine the intent and wording of s. 3.9.3. It was Mr. Nywening’s evidence that the decision to exclude the Lakeshore zone from the list of exceptions was intentional. Excluding the Lakeshore zone from the calculation of zone regulations on the Subject Property ensures the established building line will be preserved along the Beachscape, contributing to the sense of place in the area, and to keep development on the Subject Property on the east end of the lot. The Applicant’s reliance on the existence of the portion of the lot zoned Lakeshore to support the proposed ZBA runs entirely counter to the purpose and wording of s. 3.9.3.
53In response to the Municipality, the Applicant submitted that a quantitative comparison with the surrounding dwellings was not appropriate. Moreover, there were problems with Mr. Nywening’s analysis, especially in light of the fact that he is not a statistician. For example, Mr. Nywening selected certain dwellings to include but excluded others, such as the adjacent seven-storey apartment building. Moreover, the properties selected are much smaller lots than the Subject Property. The Applicant submitted that Mr. Nywening had erred by applying broader community policies or averages to inform what could be done on the Applicant’s atypical lot. Mr. Nywening also did not take into account dual zones, artificial constraints, or the seasonality of use. As submitted by the Applicant, “the number of bathrooms a 70‐year‐old cottage has 500 metres away in a transitioning community is not a relevant consideration for evaluating our client’s site‐specific zoning by‐law amendment.” Of note, under cross examination, Mr. Nywening confirmed that he did not undertake his analysis for either of his two earlier Municipality staff reports, but undertook it exclusively for this Hearing. In short, the Applicant submitted that this is a site‐specific zoning by‐law amendment, and should be considered in light of the site’s specific characteristics.
Issue 5: Does the Proposed Development Provide an Appropriate Transition From the Main Street Commercial Area and Higher Density Development to Low-Density Development?
54In support of the ZBA, Mr. McGuffin, through his evidence, outlined that the proposed development provides an appropriate transition from the main street commercial area and higher density development to low-density development. Moreover, the Subject Property is located at a key transitional location along the lakeshore, and the proposed triplex would provide an appropriate transition between the seven-storey building to the south and the lower-density residential neighbourhood to the north, which also contains medium density developments although on much smaller lots. Mr. Skinner agreed that the Subject Property’s location serves as a transition.
55Mr. McGuffin further explained that the Subject Property, while fronting on Pine Street, is also located at the terminus of Centre Street where Centre Street meets Pine Street. Development north of the Subject Property is oriented toward Beach Lane that terminates north of 19 Pine Street that abuts the Subject Property to the north. As a result, the buildings on the abutting lands to the north turn their backs on the Subject Property with their orientation to the north toward Beach Lane and positioning tight to the south property line adjacent the Subject Property and the Centre Street / Pine Street intersection. This effectively positions the Subject Property at a transition point between a low-rise residential enclave to the north, and a high-density residential use to the south.
56Mr. McGuffin also testified that in the R4 zone, one can construct a building with a peaked roof to a maximum height of 9 m. In the proposed R3 zone, the maximum height for a building is 11 m. In the C10 zone (commercial zone near the Subject Property), the maximum height for a building is 10 m. Thus, the Applicant submitted that the height of 9.8 m proposed for the Proposed Development is an appropriate transitional height.
57In opposition to the ZBA, the Municipality disagreed that the Subject Property serves as a transition. Though Mr. McGuffin characterized the building at 9 Pine Street as being “immediately adjacent” to the south of the Subject Property, this is not correct, as a public walkway to the beach is located to the immediate south of the Subject Property. Mr. Nywening testified that this is the highest maintained public beach access in the Municipality and contains a high volume of pedestrian traffic travelling from Centre Street. This means that the building on Subject Property will be highly visible to the public. A large parking lot is then located further to the south of the public walkway. A property known as 69 King Street, which contains a single detached dwelling, is also located to the south and is closer to the Subject Property than the building at 9 Pine Street. This means that the public walkway, the parking lot, and 69 King are all located closer to the Subject Property than the building at 9 Pine Street. The Subject Property will therefore not serve as a transition between a low-density area and a high-density use. Given how far away the building is located at 9 Pine Street, there is no need for the Subject Property to serve as a transition. Moreover, Mr. Nywening opined that the Subject Property also does not serve as a transition to the commercial area to the south, given the intervening uses. According to Mr. Nywening, rather than being a transition, the Subject Property is an important part of the existing low-density neighbourhood, and is part of the “beachscape”. The development on this property will be part of the established building line with the properties to the north.
Issue 6: Does the Proposed Development Have Regard for the Matters of Provincial Interest Set Out in Section 2 (h) and (r)(i)(ii)(iii) of the Planning Act?
58In support of the ZBA, Mr. McGuffin’s testified that the Proposed Development has appropriate regard for the orderly development of safe and healthy communities (s. 2(h)) with the use of modern building techniques, immediate accessibility to the shops and services offered on the main commercial corridor through means of healthy active mobility and through the provision of significant on‐site open space and passive recreational opportunity, and direct access to the main public beach and the Lake Huron shoreline for the pursuit of swimming and other healthy active recreational and leisure pursuits. The Proposed Development also has appropriate regard for the promotion of a built form that “is well designed,” with painstaking care taken to respond to the existing natural and built environments (s. 2(r)(i)), and that “encourages a sense of place” through effective design and integration within the surrounding landscape (s. 2 (r)(ii)). Lastly, Mr. McGuffin testified that the Proposed Development has regard for the provision of “public spaces that are of high quality, safe, accessible, attractive and vibrant” (s. 2(r)(iii)).
59In opposition to the ZBA, Mr. Nywening indicated that these subsections of the Act speak to connecting a sense of place with healthy communities and built form. This proposal, however, does not have regard for these matters due to the excessive scale of the proposed building.
FINDINGS AND DISPOSITION
60For the reasons that follow, the Tribunal agrees with the Applicant and is convinced by the evidence provided by Messrs. McGuffin and Skinner.
61The fundamental question in this matter is whether this Proposed Development is too large for this particular lot, and the issues that informed this hearing speak to that.
Issue 1: Is the Proposed Zoning By-law Amendment (ZBA) Consistent With the Following Sections of the Provincial Policy Statement 2020?
1.7.1 e)
62The Tribunal agrees that the ZBA, and the Proposed Development it will facilitate, is consistent with the PPS, and specifically with Policy 1.7.1(e). The Proposed Development will encourage a sense of place, appears to be well and thoughtfully designed, as confirmed by Mr. Skinner’s testimony, and conserves features that help define the character of the area, through the use of materials that represent the features of the area and by virtue of the fact that no part of the building is to be built in the Lakeshore Zone area of the Subject Property. Moreover, the Tribunal agrees with Mr. McGuffin that the Proposed Development contributes to more housing in the area, which will add to the sense of community and vibrancy of the area, and will respond to demand for housing.
63The Tribunal does not agree with the Municipality that the size of the dwelling will detract from the beachfront and the lake views. By way of a number of photographs, it was demonstrated that the views of the beachfront are impacted in various ways by the dwellings in the area at present. Moreover, views of the lake can be impacted in various ways that the Applicant is entitled to as of right, and as both sides have acknowledged, protection of views is not a right. The Tribunal was also not convinced that the size of the Proposed Development would detract from the seaside resort feel of the beachfront. Based on a review of the photographs provided, the Proposed Development would fit in with the eclectic architecture (including numerous modern-style developments) apparent in the community. Moreover, the triplex use of the Proposed Development is in line with other similar uses in the surrounding neighbourhood. Lastly, the location that the building is proposed to be built in (only in the current R3 zone and not in the Lakeshore zone), as well as its relationship with the neighbouring properties (similar to other triplex uses such as the one adjacent to it, and the height appearing lower than the dwelling next door), would allow for a building that would fit into the neighbourhood.
Issue 2: Does the Proposed ZBA Conform to the Following Policies in the Upper Tier Lambton County Official Plan (“County’s OP”)?
2.1.4; 2.1.5; 2.3 goals
64The Tribunal was persuaded by Mr. McGuffin’s testimony, and agrees that the ZBA, and the Proposed Development it facilitates, conforms to the County’s OP, including Policies 2.1.4, 2.1.5, and 2.3. The Tribunal agrees that the Proposed Development appears to promote a well-designed built form that will likely contribute to the vibrancy of the area (Policy 2.1.4). The Tribunal also agrees that the Proposed Development does not appear to lead to disruption to existing or planned residential uses, especially as the triplex use is not in dispute, and appears to conserve the cultural and natural heritage features of the area, by way of the materials being used and the fact that no part of it will be built on the Lakeshore zone of the Subject Property (Policy 2.1.5).
65The Tribunal is not convinced that the size of the Proposed Development was of such an extent to fail conformity with the County’s OP Policies, especially as adequate care seems to have been taken to ensure that the scale, massing, and placement of the Proposed Development are such that it conforms with the policies and is compatible with the surrounding neighbourhood. The Tribunal does not find the size inappropriate for the stated purpose of a triplex use.
66With respect to s. 2.3, the Tribunal agrees that the Proposed Development would contribute to the range and quality of housing that is suitable to the needs of the community and its residents. Based on a review of the pictures of the surrounding area, the proposed built form is similar to other developments in the area. As such, the Tribunal does not agree that the Proposed Development would detract from the viability of the existing areas by detracting from the character of the surrounding residential neighbourhood. Moreover, additional housing would respond well to the needs of the community, as well as the province in general in light of the current housing crisis and provincial directives.
Issue 3: Does the Proposed ZBA Conform to the Following Policies in the Local Lambton Shores Official Plan (“Municipality’s OP”)?
2.2 Goals and Objectives; 5.1 Communities and Neighbourhoods;
5.4 Land Use and Design Policies; 15.2.1 Form and Design; 15.4.2 Grand Bend
67The Tribunal was persuaded by Mr. McGuffin’s testimony, and agrees that the ZBA, and the Proposed Development it facilitates, conforms to the Municipality’s OP, including Policies 2.2, 5.1, 5.4, 15.2.1, and 15.4.2. The Proposed Development, by providing a triplex use on a distinct lot, would allow for re-investment in the community, and promote land use compatibility at a transitional location. Moreover, the Tribunal agrees that it would promote attractive and functional site and sensitive building design. While the Subject Property is located adjacent to a public walkway, the Tribunal did not find that the Proposed Development would negatively impact this walkway or the surrounding beach and waterfront. As confirmed by Mr. Skinner, and persuasive to the Tribunal, much care has been taken with the design in order to minimize negative impacts on the surrounding areas. The Tribunal agrees with the Applicant’s submission that the Proposed Development consists of modest intensification and redevelopment within the established settlement area of Grand Bend, allowing for an efficient use of existing services.
68It was the Municipality’s position that the size of the building prevented it from being compatible with its surroundings and meeting the objectives of the Municipality’s OP. However, the Tribunal finds that the size of the Proposed Development is appropriate for the triplex use proposed, and agreed to by the Parties, the built form is in line with new developments in the neighbourhood and the area in general, and that the building, due to its positioning and design, would fit within the community.
69In the same vein, with respect to s. 5.1, the Tribunal is convinced by Mr. McGuffin that this Proposed Development represents a medium density use in the local context, where medium density use already exists (on smaller lots than the Subject Property). Thus, it would be compatible with surrounding existing neighbourhoods and would provide for a transition between the existing lower-density neighbourhoods and possible future higher density developments. It is important to recall that the original proposal has been modified from a four-storey development with a rooftop patio to a three-storey development with no rooftop patio. The Applicant has made revisions to ensure that the Proposed Development becomes compatible with the surrounding neighbourhood and addresses concerns raised by residents in the area and the Municipality. The Tribunal finds the changes, and the present resulting Proposal, to be compatible with the Subject Property’s immediate and broader context. The Tribunal agrees that compatibility does not require sameness, a point acknowledged by Mr. Nywening as well, and in this case, the use and building design would be harmonious with the surrounding neighbourhood.
70With respect to Mr. Nywening’s testimony regarding the seven-storey building at 9 Pine Street, and that this high-density development, relied on heavily by the Applicant, would not be permitted in Grand Bend today, the Tribunal finds that Grand Bend’s policy towards high-density developments do not apply as the Proposed Development is not high-density, but rather medium density, and the use proposed is not in dispute. Moreover, the Tribunal finds that, although 9 Pine Street may not be approved today, it remains informative for the current context of the area as it is an existing building and a dwelling that is adjacent to the Subject Property. The Tribunal does note, however, that it did not arrive at its final decision solely due to the fact of the existence of 9 Pine Street, but as a result of the totality of the evidence that was presented.
71With respect to s. 5.4, the Tribunal agrees with Mr. McGuffin that the Proposed Development would be compatible with the scale, density, and character of the existing surrounding land uses. As has been explained above, the Tribunal was not convinced by evidence to the contrary. Moreover, redevelopment of this area is anticipated by s. 5.4 as well, with which the Proposed Development would be in line.
72With respect to ss. 15.2.1 and 15.4.2, the Tribunal agrees with Mr. McGuffin that the ZBA, and the Proposed Development it would facilitate, conform with these sections. First, the Proposed Development is to be three storeys as these sections direct. Moreover, care has been taken with the architectural design, as explained by Mr. Skinner, to ensure that it is in harmony with adjacent uses and natural features. The question then becomes a matter of obstruction of views of natural features and landmarks. The Tribunal is convinced by the evidence that care has been taken in the design to ensure that views are preserved; the view of the lake is already obstructed; the Applicant could obstruct views in other ways that it is entitled to use as of right; and the height of the building is lower than the two-storey dwelling situated on a higher elevation to the Subject Property’s immediate north.
73With respect to s. 15.4.2 specifically, the Proposed Development is a medium density development, restricted to three storeys, which the Tribunal finds conforms to this section. Section 15.4.2 states that building heights generally decrease from Ontario Street to the lake to preserve views. However, the Tribunal agrees with Mr. McGuffin’s interpretation of this section, namely that it is not prescriptive and does not mandate a decreased height. Regardless, the height of the Proposed Development is minimally or not at all greater than the surrounding developments, such as the seven-storey building adjacent to it or the development north of it which is at the same height. Mr. Nywening raised the Municipality’s recent revision to height requirements of flat roofed buildings, which has been changed to 7.4 m, while peaked roof heights can remain at 9 m. It was explained that the intent behind this change was to avoid rooftop patios for flat roofed buildings. In this case, the Proposed Development, as modified, does not have a rooftop patio, and thus, this concern no longer applies. Moreover, the Applicant is seeking an amendment to the height restriction, up to 10 m. Thus, in its finding that the ZBA and the Proposed Development are appropriate, the Tribunal also agrees that the height increase in this particular site, for this particular proposal, is appropriate. Of note, the maximum permitted height for a triplex dwelling in the proposed R3 zone is 11 m, but the Applicant is seeking 10 m.
Issue 4: Is the Proposed Development Compatible With the Surrounding Neighbourhood in Scale, Massing, and Character?
74Issue 4 is really the crux of the matter. The Tribunal was persuaded by Messrs. McGuffin and Skinner’s collective evidence, that the Proposed Development would be compatible with the surrounding neighbourhood in scale, massing, and character.
75However, the Tribunal was also persuaded by the unique nature of this particular lot. There are a number of features in this Subject Property that do set it aside from the other lots in the neighbourhood:
a. The size of the Subject Property is significantly larger than those of the lots in the surrounding neighbourhood.
b. It is dually zoned (R4 and Lakeshore zones).
c. It is located adjacent to the seven- (7) storey apartment building. While the Tribunal understands and accepts the Municipality’s point that there are a number of other things in between the Subject Property and the building (including a public walkway and parking lot), the building is located within the immediate vicinity of the Subject Property.
d. The property adjacent to the Subject Property is being used for a similar purpose of servicing three households, albeit with three separate dwellings.
e. While the majority of the neighbourhood surrounding the Subject Property is zoned R4, the seven-storey apartment building is zoned R3, as is the dwelling just northeast of the Subject Property. The Subject Property is located at the intersection of Centre Street and Pine Street. If Pine Street is continued to its culmination on the west of the Subject Property (there are 5 lots in this stretch of Pine Street), the zoning changes to “Commercial 10.”
76Based on these features, the Tribunal is persuaded that the Proposed Development would be appropriate for this lot, even if it may not be appropriate for some of the other (much smaller) lots in the immediate neighbourhood.
77Of note, though the surrounding lots are smaller, minor variance approvals have been granted routinely in this area for lot coverage, according to Mr. Nywening, and have been generally increased up to 40%, and occasionally slightly more where an existing lot is smaller than average. Thus, an increase in lot coverage of 45%, which has been requested here, is not significantly out of line with what has been approved. In light of the particular characteristics of the lot, and especially in light of its significantly larger lot size, the Tribunal is persuaded that such an increase would be appropriate. The Tribunal acknowledges and understands the Municipality’s point that s. 3.9.3 of the ZBL requires that each zone be considered separately when a lot is dually zoned, such as this one. However, issue 4 in dispute is asking the Tribunal to consider the Proposed Development’s compatibility with the neighbourhood. If in this neighbourhood, smaller lots have been permitted to increase their lot coverage by 40% or more, this would mean that there are lots that appear to be greatly developed (since an increase in lot coverage on a smaller lot would likely appear bigger). The photographs provided of the neighbourhood reflect such a hypothesis. Thus, the look and feel of the neighbourhood would be that larger developments are permitted if appropriate for the lot (such as increasing lot coverage by more than 40% for a smaller lot). The reverse reasoning also applies, and a greater lot coverage for a significantly larger lot would be appropriate similar to a greater lot coverage being appropriate for a smaller lot.
78While the Municipality raised concerns about this Proposed Development setting a precedent for the area, the Tribunal notes that each application is to be determined on its own merits. Moreover, the Tribunal highlights that there are features unique to this Subject Property that will likely be rarely repeated or identified in other properties.
79The Municipality provided some caselaw in support of its position that the Proposed Development was too large. However, the Tribunal found the cases to be distinguishable from this present case, as follows:
a. In the case of O’Bumsawin v. Minden Hills (Township) 2015 CanLII 81801 (ON LPAT) (a minor variance case), the lot was too small, which is not the case in here.
b. In the case of Jing v. Mississauga (City) 2016 CanLII 82329 (ON LPAT) (also a minor variance case), the surrounding area consisted of one and two-storey peaked roof dwellings and the Applicant in that case sought a three-storey flat roof dwelling. In the case at hand, the neighbourhood is eclectic, the proposed three storeys are contemplated for in the Municipality’s OP, and the Municipality agrees with the triplex use. Moreover, the Subject Property has distinguishing characteristics, described above.
c. In the case of 1756392 Ontario Limited v. Toronto (City) 2020 CanLII 38964 (ON LPAT), it was proposed that a row of fifteen 2.5-storey rental townhouses be replaced with one 52-unit, four-storey building, and the proposal was refused as the massing and scale would not be appropriate for the character of the neighbourhood, which comprised of single family detached and semi-detached dwellings. This case is distinguished from the case at hand, where the Subject Property is at a transitional location, and the proposed use is much more in line with the surrounding neighbourhood than what was proposed in the 1756392 Ontario Limited case. In fact, triplex uses already exist in this neighbourhood.
Issue 5: Does the Proposed Development Provide an Appropriate Transition From the Main Street Commercial Area and Higher Density Development to Low-Density Development?
80As has been explained in detail above, the Subject Property is uniquely situated in the community. As such, based on this and the totality of the evidence provided, the Tribunal agrees with Mr. McGuffin’s expert testimony that this medium density Proposed Development would be an appropriate transition from the Main Street commercial area / higher density development to the low-density neighbourhood. Moreover, as the Applicant pointed out, in the R4 zone one can construct a building with a peaked roof to a maximum height of 9 m. In the R3 zone, the maximum height for a building is 11 m. In the C10 zone, the maximum height for a building is 10 m. The height of 9.8 m proposed for the Proposed Development is an appropriate transitional height. The Tribunal agrees.
81With respect to the Municipality’s point that the Subject Property is not transitional as there is a public walkway and a large parking lot located between it and 9 Pine Street (the apartment building), the Tribunal finds that the overall view of this area would be the building and then the Subject Property and then the residential neighbourhood. Moreover, pictures have been provided of the view from the water and towards the water, and the Proposed Development would appear to in fact form a transition point between the busier commercial area, the building, and then the more residential neighbourhood.
82Mr. Nywening also indicated that the Subject Property is part of the “beachscape,” and any development on this property will be part of the established building line with the properties to the North. The Tribunal understands this point, but based on the totality of the evidence, including the pictures provided, finds that the Proposed Development would fit compatibly in that building line.
Issue 6: Does the Proposed Development Have Regard for the Matters of Provincial Interest Set Out in section 2(h) and (r)(i)(ii)(iii) of the Planning Act?
83The Tribunal agrees with Mr. McGuffin’s testimony on this issue, and finds that the ZBA, and the Proposed Development it facilitates, have regard for matters set out in section 2 of the Act. The reasoning and analysis outlined above is repeated here.
Summary
84In short, the Tribunal finds that the ZBA and the Proposed Development it will permit satisfy all legislative tests and warrant approval. The Tribunal finds that the Proposed Development represents a well‐designed building that transitions from a high‐density land use to the south and introduces a gentle increase in density at the periphery of an established residential neighbourhood in Grand Bend, while considering and responding to the existing land‐use context, established planning framework, and the town’s legacy as a beachside village. The Tribunal is satisfied that there is appropriate transition from the existing residential area to the commercial area, and is additionally satisfied that the Proposed Development will not result in overdevelopment but rather, is an appropriate and efficient use of this particular lot to reinvest in a stable neighbourhood, furthering the goals of the provincial planning regime to increase housing opportunities.
ORDER
85THE TRIBUNAL ORDERS that the appeal is allowed and Zoning By-law No. 1 of 2003 of the Municipality of Lambton Shores is hereby amended as set out in Attachment 1 to this Order, pursuant to s. 34(26)(b) of the Planning Act. The Tribunal authorizes the municipal clerk of Lambton Shores to assign a number to this by-law for record keeping purposes.
“Bita M. Rajaee”
BITA M. RAJAEE
MEMBER
Ontario Land Tribunal
Website: www.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