Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 26, 2023
CASE NO(S).: OLT-23-000112
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Cindy Cottrelle Subject: Minor Variance Description: To construct a new detached dwelling on the retained lot and relocate the existing dwelling on the severed lot Reference Number: B22/12 (1711) Property Address: 492 Lakeshore Road East Municipality/UT: Oakville/Halton OLT Case No.: OLT-23-000112 OLT Lead Case No.: OLT-23-000112 OLT Case Name: Cindy Cottrelle v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Cindy Cottrelle Subject: Consent Description: To construct a new detached dwelling on the retained lot and relocate the existing dwelling on the severed lot Reference Number: CAV A/210/2022 Property Address: 492 Lakeshore Road East Municipality/UT: Oakville/Halton OLT Case No.: OLT-23-000113 OLT Lead Case No.: OLT-23-000112 OLT Case Name: Cindy Cottrelle v. Oakville (Town)
Heard: May 10, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Cindy Cottrelle | Denise Baker |
| Town of Oakville | Dennis Perlin |
DECISION DELIVERED BY DAVID BROWN AND GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matters before the Tribunal are two appeals filed by Cindy Cottrelle (the “Appellant”) under s. 53(19) and s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (the “Act”) against two decisions of the Town of Oakville (the “Town”) Committee of Adjustment (the “CofA”) that refused an Application for Consent and an Application for Minor Variance (the “Applications”). The Applications affect the lands known as 492 Lakeshore Road East (the “Subject Property”).
2The Appellant proposes to relocate the existing dwelling located on the Subject Property to the southerly portion of the lands and sever the Subject Property creating a new residential building lot on the northerly portion of the lands (the “Proposal”). To facilitate the Proposal, the Appellant filed an Application for Minor Variance to permit the relocated dwelling to provide:
a. A front yard setback of 6.46 metres (“m”) measured to Lakeshore Road East,
b. A window well located in the front yard having a width of 2.9 m, and
c. An uncovered access stairwell below grade encroaching 5.14 m into the interior side yard.
The Appellant also filed an Application for Consent proposing a new residential building lot be created proposing a lot frontage of 21.19 m on Park Avenue and having an area of 899 square metres (“m2”).
3The Applications were considered by the CofA at its meeting on January 25, 2023. A Staff Report was prepared for each of the matters recommending approval of the Applications and setting out conditions recommended for each of the Applications. The Staff Reports are included in the Appellant’s Document Book (Exhibit 1) at Tabs 13 and 14. The CofA refused the Applications.
4Mr. Perlin, Counsel for the Town, attended and advised that the Town is not taking a position with respect to the Appeals. Mr. Perlin explained that his attendance at the hearing is to request that, should the Tribunal allow the Appeals and approve the Applications, the Tribunal includes in its Order the conditions recommended in the Staff Reports.
5For the reasons set out below, the Tribunal allows the Appeals and approves the Applications subject to the conditions recommended in the Town Staff Reports.
REQUESTS FOR STATUS
6The Tribunal received a request for Party Status from John Tamindzic, the owner of the abutting lands to the east known as 500 Lakeshore Road East, and a request for Party Status from Winsor Macdonell, the owner of the abutting lands to the south known as 85 Park Avenue.
7The Tribunal considered the Party Status Request Forms filed by Mr. Tamindzic and Mr. Macdonell. The Tribunal reviewed Rule 8.0 of the Tribunal’s Rules of Policy and Procedure (“Rules”) with Messrs. Tamindzic and Macdonell and noted the differences between a Participant and a Party and outlined the expectations of a Party as set out in Rule 8.1.
8Messrs. Tamindzic and Macdonell advised that they are seeking Party status as they wish to pose questions to the Appellant’s Planner, Paul Demczak, and challenge the analysis set out in Mr. Demczak’s Witness Statement (Tab 1 of Exhibit 1). Messrs. Tamindzic and Macdonell confirmed to the Tribunal that they do not intend to lead any new evidence beyond what is included in the statements filed with their Party Status Request Forms. They acknowledged that as a Participant, they will not be afforded the opportunity to address the Tribunal or question the Appellant’s Planner.
9Ms. Baker, in response to the requests and the submissions for status before the Tribunal, noted that the requestors do not intend to call any expert witnesses in response to the opinions proffered by Mr. Demczak and are not proposing to tender any new evidence beyond that which is included in their written statements to the Tribunal. Ms. Baker advised that an individual cannot be both an advocate and an expert. Messrs. Tamindzic and Macdonell wish to have their statements entered as evidence and they wish to cross-examine Mr. Demczak. Ms. Baker proffered that Messrs. Tamindzic and Macdonell must pick one or the other.
10Ms. Baker advised that her client does not oppose granting Messrs. Tamindzic and Macdonell status as Participants in these proceedings, however, the Appellant opposes granting Party Status to Messrs. Tamindzic and Macdonell.
11After some deliberation, Mr. Tamindzic requested that the Tribunal grant an adjournment of the hearing to allow him and Mr. Macdonell to secure legal counsel and respond to the expectations of a Party as set out in the Rules.
12The Tribunal denied the request for an adjournment advising that the Notice of these proceedings was provided sufficiently in advance of the hearing to allow Mr. Tamindzic to secure such counsel as he may deem necessary. The Tribunal referenced Rule 17.3 which sets out that a request for an adjournment without the consent of all parties must be brought forward in the form of a motion at least 15 days prior to the hearing. No motion has been filed with the Tribunal. Further, the Tribunal advised that last-minute adjournments may only be granted in the event of an unavoidable emergency as set out in Rule 17.4.
13Mr. Macdonell confirmed that he wishes to proceed with his request for Party status and Mr. Tamindzic advised that he wishes to withdraw his request for status before the Tribunal.
14In consideration of the request for Party Status from Mr. Macdonell, the Tribunal considered Rule 1.6 of the Tribunal’s Rules which states:
The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.
And also considered Rule 8.2 which states:
The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.
15The Tribunal then considered Rule 8.1 of the Tribunal's Rules which sets out the role and obligations of a party and allows a person conferred Party status to participate fully in the proceedings. Full participation anticipates that there will be evidence presented to the Tribunal in support of the position taken by the party. The written submission filed with the Tribunal by Mr. Macdonell does not refer to, nor contemplate, any new or contrary evidence to be presented to the Tribunal. Mr. Macdonell’s oral submissions confirm his involvement will be to challenge the opinions of the Appellant’s expert and he does not intend to present any contrary evidence before the Tribunal.
16The Tribunal acknowledges that Mr. Macdonell may not possess the familiarity or experience with the development approval process and in particular the Tribunal appeal process that would permit him to participate in the manner that he is contemplating. Notwithstanding, the Tribunal notes that Mr. Macdonell has had ample time to seek out counsel since the circulation of the Tribunal’s Notice of Hearing in respect of this matter.
17The Tribunal concludes that granting the request for Party status will adversely impact the fair, just, and expeditious determination of the issues in this proceeding noting that this consideration must balance the interests of the neighbours, the Town, and the Appellant. The Tribunal finds that the request for Party status will not result in any new evidence being presented to the Tribunal that will assist the Tribunal in adjudicating effectively and completely the issues in this proceeding.
18Accordingly, the Tribunal denies the request from Mr. Macdonell for Party status in this matter.
19The Tribunal extended Mr. Macdonell the option of requesting Participant Status in the proceedings and Mr. Macdonell requested that he be granted Participant Status. The Tribunal granted Participant Status to Mr. Macdonell and received his written submission as his Participant Statement which is marked as Exhibit 2.
LEGISLATIVE FRAMEWORK
20When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act. Section 2.1(1) of the Act requires that the Tribunal shall have regard to any decision made by an approval authority and that relates to the same planning matter and any information and material that the approval authority considered in making its decision. The Tribunal interprets the approval authority to be the CofA in this matter. Section 3(5) of the Act requires that the decision of the Tribunal shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).
21When considering an Application for Consent, the Tribunal must be satisfied that a plan of subdivision is not required and have regard for the matters set out in s. 51(24) of the Act.
22The Tribunal when considering an appeal of an Application for Minor Variance must be satisfied that the requested variance meets the four tests as set out in s. 45(1) of the Act namely:
Does the request maintain the general intent and purpose of the official plan?
Does the request maintain the general intent and purpose of the zoning by-law?
Is the request desirable for the appropriate development or use of the land, building or structure? And
Is the requested variance minor in nature?
23In consideration of the above statutory requirements, the Tribunal must also be satisfied that the proposal represents good planning and is in the public interest.
EVIDENCE AND SUBMISSIONS
24The Tribunal qualified Mr. Demczak, a Registered Professional Planner, to provide expert opinion evidence in the area of Land Use Planning on behalf of the Appellant.
25Mr. Demczak testified that the Subject Property is located at the southeasterly corner of Lakeshore Road East and Park Avenue in the southeast part of the Town. The area is an established neighbourhood comprised of predominantly two-storey detached residential dwellings. There are a variety of lot sizes and configurations in the area and varying architectural styles. A characteristic of the surrounding neighbourhood is the significant tree canopy. The Subject Property has a frontage of 42.6 m along Lakeshore Road East and a frontage of 45.95 m along Park Avenue, with a total lot area of 1,950 m2.
26The Subject Property is occupied by a two-storey detached dwelling and a detached garage. The existing dwelling is listed on the Town's Municipal Heritage Register as a Non-Designated property. The dwelling is referred to as the Symmes House.
27The Appellant proposes to relocate the Symmes House within the Subject Property and sever the property, retaining the Symmes House on the severed lands and creating a new residential building lot on the retained lands. The severed lands will front onto Park Avenue proposing a lot frontage of 21.82 m and a lot area of 921 m2 with an exterior (flankage) side yard along Lakeshore Road East. The severed lands are described as Part 2 on the Severance Sketch Plan found at Tab 9 of Exhibit 1. The retained lands will also front on Park Avenue proposing a lot frontage of 21.19 m and a lot area of 899 m2. The retained lands are shown as Part 3 on the Severance Sketch Plan. A road widening along Lakeshore Road East has been requested by the Town which is shown as Part 1 on the Severance Sketch Plan (collectively the “Consent”).
28Mr. Demczak advised that a Heritage Impact Assessment (“HIA”) was prepared in support of the Proposal and submitted to the Heritage Oakville Advisory Committee (“HAC”) for review. The HIA recommended creating a “Moving and Conservation Plan” to reduce the risks associated with relocating the Symmes House on the Subject Property which includes a Heritage Easement Agreement to be discharged upon the satisfactory relocation, rehabilitation and restoration of the Symmes House. The HIA further recommended designating the Symmes House under Part IV of the Ontario Heritage Act. The HAC recommended approval of the Proposal to the Town Council and at its meeting on December 5, 2022, and December 7, 2022, Town Council approved a resolution endorsing the recommendations of the HAC.
29Mr. Demczak opined that, given the review and approval of the HIA by the HAC and the subsequent endorsement of HAC recommendations by the Town Council, the proposal is contextually appropriate and conforms to the Town’s heritage policies as set out in the Town’s Official Plan (“TOP”) and the Proposal is appropriate from a heritage planning perspective.
30Mr. Demczak reviewed the relief being requested in the Application for Minor Variance advising that the three variances being sought are required to facilitate the relocation of the Symmes House. He explained that once the house is relocated and the Consent is finalized, thus severing the Subject Property, the variances requested with respect to the front yard setback and the below-grade access stairs will no longer be required. The variance is required prior to the Consent being granted as the front yard is deemed the yard adjacent to Lakeshore Road East and the interior side yard is deemed to be the easterly side by the zoning by-law.
31The Town Zoning By-law 2014-014 (the “ZBL”) requires a front yard setback of 19.59 m in this instance and the relocated Symmes House proposes a front yard setback of 6.46 m to the Lakeshore Road East property line. The ZBL permits an uncovered access stair below grade to project into the interior side yard not more than 1.5 m from the main wall, whereas the proposed encroachment is 5.14 m. The ZBL permits a window well with a maximum width of 1.8 m to encroach into a required yard up to 0.6 m, whereas the proposed window well in the front yard will have a width of 2.9 m with a maximum encroachment of 0.6 m.
32Mr. Demczak explained that the ZBL defines the Front Lot Line for a corner lot as the shortest of the lot lines that divide the lot from the road and referred the Tribunal to the definition contained in Exhibit 1b. The Front Lot Line for the Subject Property is currently the lot line adjacent to Lakeshore Road East. Upon the finalization of the Consent, the new Front Lot Line for the severed lot will be Park Avenue. This will result in the lot line adjacent to Lakeshore Road East being deemed a Flankage Lot Line and the easterly yard being the rear yard. Mr. Demczak proffered that the finalization of the Consent will effectively bring the relocated Symmes House on the severed lot into compliance with the ZBL with respect to the setback to Lakeshore Road East and the uncovered basement entrance stairwell projection which would be located in the rear yard of the newly created lot.
33Mr. Demczak reviewed the site plans and architectural elevation plans for the Symmes House which describe a new entrance portico addition on the Park Avenue façade and a two-storey addition including an attached garage on the south side of the dwelling accessed from a new driveway out to Park Avenue. Mr. Demczak reviewed the site plan and architectural elevation plans for the new dwelling proposed on the retained lands. He noted that the additions to the Symmes House and the new dwelling will comply with the ZBL and that the dwellings have been sited to protect and preserve 29 trees located on the Subject Property.
34In consideration of the matters of provincial interest, as identified in s. 2 of the Act, Mr. Demczak proffered that the Applications will not impact the natural features on the Subject Property as the 29 trees on the property will be protected and preserved as part of the redevelopment proposal (s. 2(a)). He continued that the proposal will result in the efficient use of municipal services (s. 2(f)), the Subject Property is in close proximity to schools, health facilities, and recreational facilities (s. 2(i)) and the proposal will result in an intensification in an appropriate location for growth and development (s. 2(p)). Mr. Demczak opined that the Proposal has appropriate regard for matters of provincial interest.
35Mr. Demczak directed the Tribunal to Section 1.1.1 e) of the PPS which states:
Healthy, liveable and safe communities are sustained by promoting the integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit investments, and standards to minimize land consumption and servicing costs;
36Section 1.1.3.1 of the PPS sets out that settlement areas shall be the focus of growth, Section 1.1.3.3 directs planning authorities to identify appropriate locations for intensification with available infrastructure, and Section 1.1.3.4 directs that appropriate development standards be promoted to facilitate intensification and compact form.
37Mr. Demczak opined that the Proposal proposes a development that is transit supportive, represents appropriate intensification of an underutilized parcel of land that is cost-effective development and that optimizes transit investment as it is within a five-minute commute to the Oakville GO Train station.
38In consideration of Section 1.7.1. e) of the PPS, Mr. Demczak opined that Proposal will support the retention of a distinctive sense of place and will preserve a built heritage resource and promotes a well-designed built form. Section 2.6.1 of the PPS states that significant built heritage resources shall be conserved. As further described in the Heritage Impact Assessment, the determination of the significance of a cultural heritage resource is governed by the Ontario Heritage Act. Mr. Demczak opined the Proposal will provide for the conservation, retention and sensitive reinvestment of a heritage resource and will fulfil the cultural heritage resource objectives of the PPS.
39Mr. Demczak opined that the Applications are consistent with the PPS.
40Mr. Demczak opined that the Proposal conforms with the Growth Plan. The Guiding Principles in Section 1.2.1 supports the achievement of complete communities and prioritizes intensification, Section 2.2.1, emphasizes the need to direct growth to Settlement Areas that have existing and planned municipal water and wastewater systems, Section 2.2.2.3 emphasizes the need for intensification to meet growth targets, and Section 4.2.7 directs that cultural heritage resources will be conserved. Mr. Demczak proffered that the Proposal conforms with the identified and applicable policies as the Proposal represents intensification, efficient utilization of infrastructure, and preserves a heritage resource.
The Four Tests of a Minor Variance
41In consideration of the Region of Halton Official Plan (“ROP”), Mr. Demczak reviewed the ROP identifying the applicable policies to the Proposal. The Subject Property is designated Urban Area on Map 1h- Regional Urban Structure of the ROP. Policy 72 sets out the objectives of the Urban Area designation and Mr. Demczak directed the Tribunal to Policies 72(1) and 72(3) which address accommodating growth and creating complete communities.
42Mr. Demczak opined that the Proposal conforms to the ROP and in respect to the test of a minor variance, Mr. Demczak opined that the request maintains the general intent and purpose of the ROP.
43Turning to the Town Official Plan, Livable Oakville (“TOP”), Mr. Demczak advised that the Subject Property is within the “Residential Area” designation on Schedule A1 Urban Structure and designated as “Low Density Residential” on Schedule G – South East Land Use. Section 2.2.1 of the TOP includes Guiding Principles that detail preserving and creating a livable community to preserve, enhance, and protect the distinct character and cultural heritage of neighbourhoods. The Principles in Section 2.2.2 details the objective of providing choice throughout the Town to enable the availability and accessibility of a wide range of housing.
44Section 11 of the TOP includes policies for development within all Residential Areas which include:
a) maintain, protect and enhance the character of existing Residential Areas;
b) encourage an appropriate mix of housing types, densities, designs, and tenure throughout the Town;
c) promote housing initiatives to facilitate revitalization, compact urban form, and an increased variety of housing alternatives; and
e) encourage the conservation and rehabilitation of older housing in order to maintain the stability and character of the existing stable residential communities.
45Mr. Demczak proffered that the TOP generally considers Residential Areas as being stable and Section 11.1.9 establishes criteria against which development within stable neighborhoods is to be evaluated. He directed the Tribunal to the following criteria:
a) The built form of development, including scale, height, massing, architectural character and materials, is to be compatible with the surrounding neighbourhood;
b) Development should be compatible with setbacks, orientation, and separation distances within the surrounding neighbourhood; and
h) Impact on the adjacent properties shall be minimized in relation to grading, drainage, location of service areas, access and circulation, privacy, and microclimatic conditions such as shadowing.
46Mr. Demczak opined that the definitions for Character and Compatible are relevant to this proposal. He directed the Tribunal to the TOP definition of Character as, “the collective qualities and characteristics that distinguish a particular area or neighbourhood.” And the definition of Compatible as, “the development or redevelopment of uses which may not necessarily be the same as, or similar to, the existing development, but can coexist with the surrounding area without unacceptable adverse impact.”
47Mr. Demczak reviewed the Town Design Guidelines for Stable Residential Communities (“Design Guidelines”) and in particular Design Guideline 3.4.1 which applies to the proposed additions to the Symmes House, being a heritage resource. He opined that the additions are architecturally compatible with the character and style of the existing building respecting the heritage value of the structure. Design Guideline 3.4.2 addresses new development adjacent to a heritage resource and Mr. Demczak opined that the proposed dwelling on the retained lands will be physically and visually compatible, yet distinguishable from, the heritage resource being the Symmes House.
48In consideration of the TOP, Mr. Demczak opined that the Proposal will create a built form that is compatible with the character and scale of dwellings in the area and the prevailing low-rise residential context. The Proposal will preserve and enhance the character of the cultural heritage within the existing neighbourhood and create a new residential building lot which represents appropriate growth within the Residential Area.
49Mr. Demczak further opined that the proposed dwellings have been appropriately sited on the resultant lots such that they will maintain compatibility with the adjacent residences in terms of setbacks and dwelling placement.
50In consideration of the Design Guidelines, Mr. Demczak opined that the proposal will result in development that is compatible with the neighbourhood lot patterns, placement and orientation of the dwellings, existing vegetation, and the retention of the existing heritage dwelling.
51In conclusion, Mr. Demczak opined that the Proposal maintains the general intent and purpose of the TOP and the Design Guidelines.
52The Subject Property is zoned RL3-0 in the ZBL. The RL3-0 zone permits detached dwellings and requires a minimum lot area of 557.5 m2 and a minimum lot frontage of 18 m. Mr. Demczak explained that the “-0” suffix on the RL3 zone adds additional requirements addressing, amongst other matters, the front yard setback.
53Mr. Demczak explained that the requested variance for front yard setback is a temporary condition as it permits the relocation of the Symmes House prior to the Consent being finalized. Once the Consent is finalized the front yard will become a flankage yard and the Symmes House will comply with the setback requirement for a flankage yard which is a minimum setback of 3.5 m. He reviewed other comparable setbacks along Lakeshore Road East and opined that the proposed setback at 6.46 m is not out of character with other front yard setbacks found within the immediate area along Lakeshore Road East. Mr. Demczak opined that the front yard setback variance is an interim condition and is required until such time as the Consent is finalized and thus meets the intent and purpose of the ZBL.
54In consideration of the window well and below-grade stairwell projections into required yards, Mr. Demczak opined that the intent of the ZBL is to ensure that there are no negative impacts on the grading and drainage of adjacent properties and to ensure adequate access exists through a side yard. He explained that the below-grade stairwell relief is also temporary as it is located in an interior side yard until the Consent is finalized and at that time the stairwell will be deemed to be located within the rear yard of the property and will then comply with the ZBL. The window well encroachment is permitted at a maximum of 0.6 m and this does not change as a result of the Consent. The relief being sought in respect of the window well relates to the width of the window well at 2.9 m and he opined that there is no impact on the access through the yard or the grading and drainage resulting from the increase in the window well width. Mr. Demczak concluded opining that the variances sought maintain the general intent and purpose of the ZBL.
55Mr. Demczak proffered that the test of whether a variance is minor is one of impact. The requested relief with respect to the front yard setback will permit the preservation of the Symmes House on the Subject Property while facilitating and infill development on the retained lands. He opined that the Proposal will contribute to a consistent street line and improved streetscape along Park Avenue and Lakeshore Road East. The below-grade stairwell projection and window well encroachment when considered in the context of the rear yard and the flankage yard respectively will meet or exceed the ZBL requirements with respect to their projection and encroachments. The relief sought to facilitate the Consent will not create any adverse impact and Mr. Demczak opined that the relief being sought is minor in nature.
56The final test of a minor variance is whether the variances are desirable for the appropriate development or use of the subject lands and Mr. Demczak opined that the Proposal and the variances requested meet this test. He proffered that the relief being requested will facilitate the relocation and preservation of the Symmes House on the Subject Property and further, that upon the finalization of the Consent, the relief with respect to the front yard setback and below grade stairwell will no longer be required. The relief for the width of the window well creates no adverse impacts. The scale, massing, height, and siting of the Symmes House have appropriate regard for adjacent properties and the future intended severance of the Subject Property.
57In consideration of the conditions recommended by the Town in the Staff Report, Mr. Demczak proffered that the conditions are consistent with the Town’s practice and appropriate to be attached to the Tribunal’s Order should the Applications be approved.
Application for Consent
58Mr. Demczak opined that the Application for Consent meets the criteria set out in s. 51(24) of the Act and reviewed the criteria identifying those that are particularly relevant to the Proposal. He proffered that the Proposal has regard for matters of provincial interest as set on s. 2 of the Act, is not premature and better reflects the lot pattern of the surrounding area, is in the public interest, conforms to the ROP and the TOP, is suitable for residential development, will make better use of infrastructure, and the dimensions of the lots are appropriate.
59Mr. Demczak opined that the Proposal conforms to Section 28.14 of the TOP which sets out conditions under which a new lot may be created. Further, he proffered that adding additional housing within a fully serviced area is consistent with the policy direction of the Growth Plan and the PPS. The Proposal will result in a more efficient use of land and the existing infrastructure.
60Mr. Demczak reviewed the lot sizes in the surrounding area and concluded that the proposed lots will be compatible with the lot frontages and lot areas existing in the immediate context of the Subject Property. In consideration of the proposed dwelling to be constructed on the retained lands, Mr. Demczak opined that it is compatible with the Symmes House and will feature building materials and finishes existing within the immediate area.
61The Town requested conditions be attached to an approval of the Consent which are set out in the Staff Report at Tab 14 of Exhibit 1. Mr. Demczak submitted that the conditions are appropriate and recommended that they be attached to the Tribunal’s Decision should the Consent be granted
62In response to the issues raised in the Participant Statement filed by Mr. Macdonell, Mr. Demczak submitted that the concerns raised with respect to the front yard setback relief being requested that the relief sought is temporary and will comply with the ZBL once the Consent is finalized. Notwithstanding, he advised that he has undertaken an assessment of setbacks along Lakeshore Road East in proximity to the Subject Property and found that the requested front yard setback is consistent with other setbacks found along this section of Lakeshore Road East. Mr. Demczak noted that the “temporary” setback is 6.46 m to the porch structure and 7.5 m to the main wall of the Symmes House. Mr. Demczak opined that the flankage elevation appropriately addresses the urban design considerations of the TOP, maintains the character of the area and compliments the streetscapes along Lakeshore Road East and Park Avenue.
63Mr. Demczak opined that the Consent has appropriate regard for matters of provincial interest found in s. 2 of the Act, is consistent with the PPS, conforms to the Growth Plan, and satisfies the criteria set out in s. 51(24) of the Act. He recommended that the Tribunal grant the Provisional Consent subject to the conditions as set out in the Town Staff Report found at Tab 14 of Exhibit 1.
64Mr. Demczak opined that the Application for Minor Variance meets the tests of a minor variance as set out in s. 45(1) of the Act and recommended that the Tribunal approve the application and attach the conditions requested by the Town as set out in the Staff Report found at Tab 13 of Exhibit 1.
65Mr. Demczak concluded that he is of the opinion that the Proposal represents good planning.
ANALYSIS AND FINDINGS
66The Tribunal has considered and accepts the uncontroverted evidence and submissions of Mr. Demczak in support of the Proposal.
67The Tribunal notes that, notwithstanding the decision of the CofA, the Town is in attendance taking no position in respect of the Appeals and that the Town staff have authored two Staff Reports outlining their support of the Applications subject to certain conditions that Mr. Demczak described as consistent with the practice of the Town in applications of this nature.
68In consideration of s. 2 of the Act, the Tribunal finds that the Proposal has had appropriate regard for the matters of provincial interest as the Subject Property is an appropriate location for growth and development at the scale proposed.
69The Tribunal finds that the proposed development is consistent with the PPS as it represents intensification that is cost effective, maximizes existing infrastructure, and promotes efficient land use.
70The Proposal prioritizes intensification to make efficient use of land and infrastructure and supports transit viability and the Tribunal is satisfied that the Proposal conforms to the policies of the Growth Plan.
71The Tribunal accepts the testimony of Mr. Demczak wherein he finds that the Proposal conforms with the ROP as it accommodates growth and retains the local community identity with the preservation of the heritage building on the property and thus preserving the character of the community while also providing for a new residential dwelling.
72In consideration of the tests of a minor variance, the Tribunal accepts the opinion proffered by Mr. Demczak and finds that the request meets the four tests as set out in s. 45(1) of the Act. The request meets the general intent and purpose of the TOP and the Tribunal finds the efforts and creative approach of the Appellant to preserve the heritage structure together with the support of the HAC and the subsequent endorsement of the Town Council compelling. The Proposal will facilitate a development that is compatible with the character of the neighbourhood and implements the Design Guidelines.
73The Tribunal finds that the request maintains the general intent and purpose of the ZBL as the relief sought with respect to the front yard setback and below-grade stairwell is temporal in nature as it is only necessary to facilitate the relocation of the Symmes House and the ultimate severance of the Subject Property. The window well width does not impede the use of the flankage side yard or impact the grading in this area of the property.
74The Tribunal finds that the request is desirable for the appropriate development of the subject lands with the creation of a new residential lot that is in keeping with the existing lot fabric and is compatible with the neighbourhood development, represents an appropriate level of intensification of an underutilized parcel within a built-up area and will efficiently utilize existing infrastructure.
75The Tribunal is satisfied that the request is minor in nature and will create no adverse impacts.
76In respect to the Application for Consent, the Tribunal accepts the submissions of Mr. Demczak wherein he opined that the Consent appropriately addresses the criteria set out in s. 51(24) of the Act and a plan of subdivision is not required.
77The Tribunal is satisfied that the issues raised by the Participant were appropriately addressed by Mr. Demczak through his submissions and the temporal nature of the front yard relief being sought.
78In consideration of the above, the Tribunal is satisfied that the Proposal represents good planning, is in the public interest, and be approved subject to the conditions set out in the two Staff Reports.
ORDER
79THE TRIBUNAL ORDERS that the appeal filed pursuant to s. 45(12) of the the Planning Act, R.S.O. 1990, c. P.13, as amended, is allowed and the variances to By-law 2014-014 are authorized subject to the following conditions:
That the heritage dwelling (the Symmes House) be relocated in general accordance with the site plan dated September 20, 2022, found in Exhibit 1, Tab 10, page 193, and the elevation drawings dated September 26, 2022, found in Exhibit 1, Tab 10, pages 199 and 200; and
That the approval expires two (2) years from the date of this decision if a building permit has not been issued for the proposed construction.
80AND THE TRIBUNAL ORDERS that the appeal filed pursuant to s. 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, is allowed, and the Provisional Consent is to be given subject to the following conditions being fulfilled to the satisfaction of the Secretary-Treasurer of the Town of Oakville Committee of Adjustment:
That the owner/applicant submit the digital copy of a reference plan showing the lands to be conveyed and a registerable legal description of the lands to be conveyed, to the Secretary-Treasurer, prior to the issuance of Consent.
That the owner/applicant submit to the Secretary-Treasurer a final certification fee payable to the Town of Oakville at the rate prescribed at the time of payment.
That the owner/applicant pay all taxes as levied on the property in full.
That the owner/applicant dedicate any lands within 13.00 meters of the centreline of Lakeshore Road East. This will require a road widening of 2.94 meters across the portion of the site that abuts Lakeshore Road East. Further, the above-described lands shall be dedicated with clear title, free and clear of encumbrances and therefore, all encroachments within the road allowance should be removed. The existing cedar hedge may remain within the road widening lands, as long as the cedar hedge is maintained at a maximum height of 0.9 metres above the grade.
That the owner/applicant provide environmental certification of the lands to be transferred to the Town of Oakville.
That the owner/applicant is to pay cash-in-lieu of parkland dedication, in accordance with provisions of Section 53 of the Planning Act. The owner/applicant is to contact the Town of Oakville’s Manager of Realty Services following provisional consent being final and no later than 60 days prior to the lapsing date of the conditions associated with such approval to arrange coordination of the necessary appraisal.
That the owner/applicant is required to provide a completed Environmental Site Screening Questionnaire to the satisfaction of the Region of Halton.
That the owner/applicant submit a Tree Protection Plan, to the satisfaction of the Town of Oakville Parks and Open Space Department.
That the owner/applicant apply for and be granted any required permit(s) from the Town of Oakville for the relocation, addition, construction, demolition, restoration etc. of the existing buildings and relocate the Symmes House onto the land to be severed, prior to the issuance of Consent.
That the owner/applicant and the Town of Oakville shall enter into a Heritage Easement Agreement to ensure the protection and conservation of the Symmes House through the relocation and restoration process, as well as the designation of the Symmes House under the Ontario Heritage Act on its new lot.
That the owner/applicant receive approval of the minor variances requested under File CAV A/210/2022 (OLT Case No.: OLT 23-000112), OR, that the owner/applicant confirms compliance with the Zoning By-law and that any deficiencies be brought into compliance with the Zoning By-law to the satisfaction of the Town of Oakville Building Services Department, prior to the issuance of Consent.
“David Brown”
DAVID BROWN MEMBER
“Gregory J. Ingram”
GREGORY J. INGRAM 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.