Casamigos88 Inc. v. North Middlesex (Municipality), 2023 CanLII 64034

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 12, 2023 CASE NO(S).: OLT-23-000125

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

Applicant/Appellant: Casamigos88 Inc. Subject: Consent Description: To permit severance of lot for creation of one infill lot for future development Property Address: 187 Main Street Municipality/UT: North Middlesex / Middlesex Municipal File No.: B1-2023 OLT Case No.: OLT-23-000125 OLT Lead Case No: OLT-23-000125 OLT Case Name: Casamigos88 Inc. v. North Middlesex (Municipality)

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

Applicant/Appellant: Casamigos88 Inc. Subject: Minor Variance Description: To permit severance of lot for creation of one infill lot for future development Property Address: 187 Main Street Municipality/UT: North Middlesex/Middlesex Municipal File No.: MV 2-2023 OLT Case No.: OLT-23-000191 OLT Lead Case No: OLT-23-000125

Heard: June 26, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Casamigos88 Inc.	Analee Baroudi
Municipality North Middlesex	Wayne Meagher

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON June 26, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The Tribunal convened a Hearing on an appeal filed by Casamigos88 Inc. (Applicant/Appellant) concerning the decision of the Municipality of North Middlesex (“Municipality”), Committee of Adjustments (“COA”) to refuse the consent and minor variance applications for its property at 187 Ailsa Craig Main Street (“Subject Lands”).

2The Subject Lands are subject to consent application B1-2023, and minor variance applications which were both denied by the COA on January 18th 2023.

CONSENT

3The Applicant/Appellant is proposing to create one infill lot by way of consent for future development purposes. The proposal is summarized below:

4The lands proposed to be severed are currently vacant of any buildings or structures, are unserviced, and do not have an existing access off of Ailsa Craig Main Street.

5The retained lands contain a single detached dwelling and an accessory building. The retained lands are serviced by municipal water and sanitary connections and have existing access off James Street.

MINOR VARIANCE

6A Minor variance application was submitted concurrently with the severance application to seek permission for a reduced minimum frontage for the severed lands and a reduced interior side yard setback for the retained lands.

7The purpose and effect of this application is to seek relief from the Municipalities Zoning By-law (“ZBL”) No.35/2004 in order to permit a minimum lot frontage of 17.05 metres (“m”) for the severed lands of Consent B1-2023, whereas the minimum lot frontage in the Residential-Commercial (“RC”) Zone is 18 m. Additionally, the application is to seek relief from the ZBL in order to permit a minimum interior side yard setback of 1.8 m for the retained lands of Consent B1- 2023, whereas the minimum interior side yard setback in the RC Zone is 3 m.

HEARING

8Upon the commencement of the hearing, Wayne Meagher, Counsel for the Municipality, advised of a settlement reached between the Applicant/Appellant and the Municipality.

9Casamigos88 Inc. and the Municipality (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeal and wish to reflect their agreement in a Severance Agreement with conditions and agree to place the proposed settlement herein before the Tribunal for approval.

WITNESS

10Evidence in support of the proposed applications was provided by the County of Middlesex planner, Stephanie Poirier, who was qualified on consent by the Tribunal to give opinion evidence in the area of Land Use Planning. The Tribunal also notes Ms. Poirier has never been qualified before the Ontario Land Tribunal until this Hearing or its predecessors, however, she has been employed as a planner since 2017 and is a pre-candidate member of the Canadian Institute of Planners and a pre-candidate member with the Ontario Professional Planners Institute.

11The Tribunal received and marked the following new documents as Exhibits to the Hearing:

Exhibit A: Severance Agreement effective date June 26, 2023

Exhibit B: Location Map and Consent Sketch

Exhibit C: Curriculum Vitae and Acknowledgement of Expert’s Duty of Stephanie Poirier

Exhibit D: Affidavit of Stephanie Poirier

THE SUBJECT LANDS AND SITE CONTEXT

12The Subject Lands are located on the southeast corner of Ailsa Craig Main Street and James Street, within the Urban Settlement Area of Ailsa Craig. The Subject Lands are within the Central Area land use designation of the North Middlesex Official Plan (“OP”) and are zoned RC within the Municipality ZBL.

13Surrounding uses are residential in nature, predominantly in the form of single detached dwellings.

LEGISLATIVE FRAMEWORK

Consent

14Concerning a consent application, the Act gives authority to grant consent to sever land under s. 53(1) of the Act, when a Plan of Subdivision is not required for the orderly development of the lands. The Act also requires when making a decision on planning matters, that approval authorities have regard for matters of provincial interest in s. 2 and matters under s. 51(24) of the Act.

Section 45 - Minor Variance

15An appeal pursuant to s. 45 of the Planning Act (the “Act”) is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely, that the requested variance:

i. maintains the general intent and purpose of the Official Plan;

ii. maintains the general intent and purpose of the Zoning By-law;

iii. is minor in nature; and

iv. is desirable for the appropriate development or use of the land, building or structure.

CONSENT

PROVINCIAL POLICY STATEMENT (PPS)

16Ms. Poirier highlighted sections 1.1.3 and 1.6 of the PPS in regard to Settlement Areas and Servicing respectively. Ms. Poirier advised the PPS and County OP generally permit lot creation within Settlement Areas, subject to servicing and compatibility. The Subject Lands are located within the Urban Settlement Area of Ailsa Craig, which is serviced by municipal water and municipal sanitary systems. In her opinion, the proposal is considered to be in conformity with the PPS and County OP and is in the Public Interest as commercial and residential uses are directed to be located within settlement areas on full municipal services.

17In Ms. Poirier’s opinion, which the Tribunal agrees with, the proposed Consent application is consistent with the PPS.

County of Middlesex Official Plan (“County OP”)

18Ms. Poirier advised the Subject Lands are designated as an “Urban Area” within the County OP. She highlighted several sections of the County OP in regard to Growth Management and types of Settlement Areas (s.2.3.2, 2.3.8 and 4.5.3.3), Urban Areas (s.2.3.8.1) Municipal Services (s.2.4.5). Permitted Uses (s.3.2.4.1), General Policies (s.4.5.3.2).

19Similar to the PPS analyses, Ms. Poirier advised the County OP generally permit lot creation within Settlement Areas, subject to servicing and compatibility. The Subject Lands are located within the Urban Settlement Area which is serviced.

20In Ms. Poirier’s opinion, with which the Tribunal agrees, the proposed applications conform to the County OP.

NORTH MIDDLESEX OFFICIAL PLAN (“OP”)

21Ms. Poirier advised the Subject Lands are designated Central Area within the Urban Settlement Area of Ailsa Craig. She highlighted several sections of the OP specifically, s.5.1.2 Urban Settlement Areas, s.5.3 Central Area Land Use Designation, s.5.3.1 Permitted Uses, s. 5.3.2 Policies and s.9.6.4 General Consent Policies.

22Ms. Poirier’s Affidavit explains the Central Area policies within the OP permit a wide range of uses, including but not limited to commercial and residential. The Central Area located along the main street in Ailsa Craig is intended to be multi-functional in nature. Intensification and infilling are encouraged within the Central Area land use designation policies. The proposed severance would create an infill lot which would result in a future development opportunity, subject to policy criteria of the Central Area designation, and the RC Zone. Any future residential development containing greater than 10 residential units and/or any proposed commercial use would be subject to the Site Plan Control process.

23Ms. Poirier advised the Subject Lands have frontage along Ailsa Craig Main Street, which is a year-round maintained public road. The proposal is considered infilling as the Subject Lands are located within the existing built-up area of the urban settlement area of Ailsa Craig. The creation of an infill lot is not anticipated to compromise the long-term use of the retained lands, which is currently occupied by a single detached dwelling.

24Ms. Poirier testified the lands to be severed meets the RC Zone minimum lot area criteria of 600 square metres (“m2”) and the Applicant/Appellant has applied for a variance for a lot frontage of 17.05 m, whereas the minimum frontage required is 18 m. While the Applicant/Appellant has confirmed there is no immediate development proposal for the lands, a concept plan has been submitted which demonstrates that the severed lot is large enough to accommodate a building envelope that maintains the zoning regulations of the RC Zone.

25Ms. Poirier advised the lands to be retained meets the RC Zone minimum lot area standard of 600 m2 as well as the minimum frontage requirement of 18 m. The Applicant/Appellant has applied for a minor variance for an internal side yard setback of 1.8 m, whereas 3 m is required. A single detached dwelling and accessory building are located on the retained lands. In her opinion, the severance will not impact the use of the retained lands.

26In Ms. Poirier’s opinion, which the Tribunal agrees with, the proposed applications conform to the Municipality OP.

Summary

27Ms. Poirier summarized that in her planning opinion, the proposed settlement meets all applicable tests from planning legislation. In particular, it has regard to the matters of Provincial Interest in section 2 of the Planning Act; is consistent with the PPS; and conforms to the Official Plans of each of the Municipality of North Middlesex and County of Middlesex.

MINOR VARIANCE

Is the variance considered minor in nature?

28Ms. Poirier advised that the proposed variance to permit a minimum lot frontage of 17.05 m for the severed lands of Consent B1-2023, whereas the minimum lot frontage in the RC Zone is 18 m is considered to be minor in nature as the Applicant/Appellant has provided a concept plan which includes a building/zoning envelope for the severed lands demonstrating that a building could be built which would maintain all other zoning standards. The proposed frontage reduction of 0.95 m on the severed lands is not anticipated to result in any negative impacts to abutting residentially used lots, and all other zoning standards are capable of being adhered to.

29Ms. Poirier contends that the proposed variance to seek relief from ZBL in order to permit a minimum interior side yard setback of 1.8 m for the retained lands of Consent B1-2023, whereas the minimum interior side yard setback in the RC Zone is 3 m is considered to be minor in nature as the lands contain an existing single detached dwelling, which generally only requires a 1.2 m interior side yard setback (R1 Zone). Ms. Poirier advised the requested 1.8 m setback would maintain an appropriate distance between the house and new lot line for rear yard access and maintenance purposes, and does not anticipate negative impacts to abutting lands as a result of the 1.2 m deficiency.

30Therefore in Ms. Poirier’s opinion, with which the Tribunal agrees, the variance is considered minor in nature.

Is the variance an appropriate use of the land?

31Ms. Poirier contends that the proposed frontage deficiency for the severed lot is an appropriate use of the land as it would result in a lot that is compatible with the surrounding area. Additionally, the Applicant/Appellant have supplied a concept plan that confirms a future building could be placed on the property without the need for variances to the setback or lot coverage requirements of the RC Zone, further demonstrating the appropriate use of the land.

32Ms. Poirier testified that the interior side yard setback of 1.8 m is considered to be an appropriate use of the lands as it exceeds the R1 Zone interior side yard setback requirement for single detached dwellings of 1.2 m. The proposed 1.8 m will allow enough space for rear yard access and maintenance purposes, further demonstrating the appropriate use of the land.

33Therefore in Ms. Poirier’s opinion, with which the Tribunal agrees, the variance is an appropriate use of the land.

Does the variance maintain the intent of the Official Plan?

34Ms. Poirier advised the Central Area policies within the OP permit a wide range of uses, including but not limited to commercial and residential. The Central Area located along the main street in Ailsa Craig is intended to be multi-functional in nature. According to Ms. Poirier, intensification and infilling are encouraged within the Central Area land use designation policies. The proposed variances will maintain the intent of the OP, as they would result in the creation of an infill lot for future residential or commercial development purposes.

35Therefore, in Ms. Poirier’s opinion, which the Tribunal agrees with, the variance maintains the intent of the OP.

Does the variance maintain the intent of the Zoning By-law?

36Ms. Poirier advised the intent of lot frontage as well as an interior side yard setback is to provide an appropriate separation distance between uses, built form, and infrastructure on abutting properties, assist in creating regular lots, and to ensure there is sufficient rear yard access for maintenance purposes.

37Ms. Poirier contends the requested interior setback for the existing single detached dwelling on the retained lands and deficient frontage for the severed lands maintains the intent of the ZBL as the retained lands will contain adequate space for rear yard access and maintenance purposes, and it has been demonstrated that the severed lot has enough frontage to maintain interior side yard setbacks.

38Therefore, in Ms. Poirier’s opinion, with which the Tribunal agrees, the variance maintains the intent of the ZBL.

PUBLIC COMMENTS

39Ms. Poirier testified there was one written public response to the applications and several oral comments at the Public meeting. The written response had concerns about not knowing the intentions for this property. According to Ms. Poirier the majority of the Public concerns related to compatibility to preserve the quaint home town feel of the neighborhood of its Victorian style houses. Ms. Poirier advised the architectural design guidelines will enhance the compatibility of the severance and surrounding land uses. Ms. Poirier advised the architectural design guidelines were an important part for the settlement between the Parties.

FINDINGS AND DISPOSITION

40In the absence of any planning evidence to the contrary, the Tribunal finds and accepts the uncontroverted land use planning evidence and expert opinion provided by Ms. Poirier that that the proposed Consent conforms with the applicable municipal Plans and, correspondingly, satisfies all of the criteria of s. 51(24) of the Act, and otherwise, represents good planning and is in the public interest. Furthermore, the Tribunal is satisfied that a plan of subdivision is not necessary for the orderly development of the Municipality pursuant to s. 53(1) of the Act.

41In addition, the Tribunal finds that the proposed variances are minor in nature, desirable for the appropriate development of the land and maintain the general intent and purpose of the OP and ZBL.

42The Tribunal acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.

ORDER

43THE TRIBUNAL ORDERS that the appeal is allowed, and provisional consent is to be given subject to the conditions set out in Schedule A to this Order, and the minor variance to Zoning By-law No. 35/2004 is authorized.

“Eric S. Crowe”

ERIC S. CROWE 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.

SCHEDULE A