Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 03, 2023
CASE NO(S).: OLT-22-004003
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Peter Barton, Kim Bryan and Brittney Barton
Subject: Consent
Description: MV & Severance application to facilitate the development of a new house
Reference Number: B06/21
Municipality: Peterborough
OLT Case No.: OLT-22-004003
OLT Lead Case No.: OLT-22-004003
OLT Case Name: Barton v. Peterborough (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: A44/21
Property Address: 1033 Water Street
Municipality/UT: Peterborough
OLT Case No.: OLT-22-004004
OLT Lead Case No.: OLT-22-004003
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: A45/21
Property Address: 1033 Water Street
Municipality/UT: Peterborough
OLT Case No.: OLT-22-004005
OLT Lead Case No.: OLT-22-004003
Heard: December 5, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Peter Barton | Peter Barton* (self-represented) |
| Brittney Barton | Peter Barton* |
| Kim Bryan | Peter Barton* |
| City of Peterborough | Alan Barber |
DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL
1This decision pertains to the appeal filed by Peter Barton, Brittney Barton and Kim Bryan pursuant to s. 45(12) and s. 53(19) of the Planning Act ("Act") against the decision by the City of Peterborough ("City") Committee of Adjustment ("COA") to deny the Minor Variance Applications and the accompanying Consent Application.
2The intention of the Applications is to create a new vacant residential building lot abutting the Subject Property ("SP") municipally known as 1033 Water Street, in the City. The Minor Variance Applications would address the deficiencies that would occur due to the creation of the new lot.
3The SP is located on the west side of Water Street in what is considered to be the north end of the City. Across the street to the east is the Otonabee River. To the north and the south of the SP are single detached dwellings.
4The SP is designated R-1 (Residential Zoning District) in the City's Comprehensive Zoning By-law No. 97-123 ("ZBL"), which permits a single dwelling unit.
5The SP is 20.12 metres wide and is approximately 1012 square metres in size.
6Water Street is classified as a "High-Capacity Arterial Road" ("Arterial Road") and is considered as a part of the Transportation Corridor under Schedule A-1 of the City Official Plan (the "OP"). Water Street is also classified as a High-Capacity Arterial Road on Schedule B of the OP Roadway Network.
7The Applications were originally submitted on November 1, 2022, with the intent of creating a new lot and addressing the deficiencies that would require the requested relief from the Minor Variance Applications.
8The Applications came before the COA on May 25, 2022. The Applications sought the following:
a. Application A44/21 ("severed lands") – seeking relief from the ZBL as follows:
i. Section 7.2(c), reduce the minimum lot width from 12 metres to 10.06 metres;
ii. Section 7.2(j), increase the maximum lot coverage by open parking areas, driveways and vehicle movement areas from 20% to 25.5%.
b. Application A45/21 ("retained lands") – seeking relief from the ZBL as follows:
i. Section 7.2(c), reduce the minimum lot width from 12 metres to 10.06 metres.
c. Application B06/21 ("severed lands") – consent to sever the southerly 10.06 metres to create a new building lot for a residential dwelling.
9The City staff report requested the denial of the Applications as Staff deemed that the Applications (specifically the Minor Variance Applications) did not meet the four tests of a Minor Variance as per s. 45(1) of the Act.
10The COA denied all of the Applications at the meeting of May 25, 2022.
11The Applicant filed an Appeal of the COA decision to the Ontario Land Tribunal on June 28, 2022.
LEGISLATIVE FRAMEWORK
12An appeal pursuant to s. 45 of the Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. These tests are that the Variance(s):
(a) maintains the general intent and purpose of the Official Plan;
(b) maintains the general intent and purpose of the Zoning By-law;
(c) is minor in nature; and
(d) is desirable for the appropriate development or use of the land, building or structure.
13Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 ("PPS"). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the Decision of the Municipality and the information it considered in the course of making its Decision, in accordance with s. 2.1(1) of the Act.
PLANNING EVIDENCE
14Before the beginning of the Hearing, the Tribunal informed Mr. Barton of the normal practice and operation of a de novo hearing and of the process by which Parties are to present their evidence. The Tribunal stated that the onus is on the Appellant to demonstrate that the Applications meet the four tests of a Minor Variance as set out in s. 45(1) of the Act. Since Mr. Barton's evidence consisted of the existing Municipal Record, including the submissions to the COA, and his rebuttal comments to the testimony of the two expert witnesses, it was agreed upon by both Parties that the City would present their evidence first. This would give the Tribunal a thorough background to the evidence, and more importantly, Mr. Barton's rebuttal testimony to the evidence-in-chief.
15The Tribunal heard evidence from two witnesses. The first witness, Christie Gilbertson, was the City Planner that created the staff report presented to the COA. She was affirmed and qualified, without refute, to give expert opinion evidence in the area of land use planning pertaining to this matter. The second witness, Vinod Soman, was the City Project Manager that was a part of the staff report presented to the COA with regards to the impact of traffic and transportation put forth as the outcome of by the Applications. He was affirmed and qualified, without refute, to give expert opinion evidence in the area of transportation planning pertaining to this matter.
16The Tribunal entered the following items as exhibits for the Hearing:
Exhibit #1 – City of Peterborough Document Book
Exhibit #2 – Visual Document Book
Exhibit #3 – Municipal Record from the City of Peterborough
Exhibit #4 – Mr. Barton Rebuttal Questions and Document
PLANNING EXPERT – CHRISTIE GILBERTSON
17Ms. Gilbertson took the Tribunal through her Witness Statement and gave the Tribunal context of the SP and the Applications that were presented to the COA. In her photos, which were part of her Witness Statement, Ms. Gilbertson showed in detail the current two-storey dwelling and two parking areas. The original parking area is located on the southern portion of the SP. The second parking area was established in 2021 and is located on the front of the SP. This parking area is approximately 4.74 metres wide and has a depth (from the front sidewalk) of approximately 6.11 metres. This newly established parking area is one of the areas of dispute between the Parties.
THE CONSENT APPLICATION
The Provincial Policy Statement, 2020 (the "PPS")
18Concerning the PPS, Ms. Gilbertson took the Tribunal through s. 1.1.1 of the PPS, specifically:
1.1.1 Healthy, liveable and safe communities are sustained by:
c) avoiding development and land use patterns which may cause environmental or public health and safety concerns;
e) 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[.]
19In Ms. Gilbertson's opinion, the Consent Application ("Application") will be an improper land use which may cause public safety concerns and is not proper growth management or intensification. In her opinion, the Application is not consistent with the PPS.
Growth Plan for the Greater Golden Horseshoe, 2020 (the "GP")
20Ms. Gilbertson stated that the GP's guiding principles embrace intensification and a wide range of housing options. The intent behind the GP is to support compact built forms and to help protect agricultural lands. The GP supports diverse land uses to help form complete communities. The GP directs planning authorities to ensure that the efficient use of lands and infrastructure is achieved. It was her opinion that the Consent Application will not ensure an efficient use of the lands. The severed and retained lands are too small to ensure an optimized use of the existing infrastructure on an Arterial Road. In her opinion, the application does not conform to the GP.
Planning Act ("Act") and OP
21Ms. Gilbertson took the Tribunal through the severance ("Consent") Application and her opinions concerning the Application. She stated that the Application is subject to s. 53(19) of the Act. In this section of the Act, there are stipulations that s. 51(24) and s. 51(25) of the Act apply to Consent Applications. Section 51(24) states that:
In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;
(b) whether the proposed subdivision is premature or in the public interest;
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
(d) the suitability of the land for the purposes for which it is to be subdivided;
(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;
(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;
(f) the dimensions and shapes of the proposed lots;
(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;
(h) conservation of natural resources and flood control;
(i) the adequacy of utilities and municipal services;
(j) the adequacy of school sites;
(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;
(l) the extent to which the plan's design optimizes the available supply, means of supplying, efficient use and conservation of energy; and
(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41(2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).
22In Ms. Gilbertson's opinion, the relevant criteria for this Consent Application are (b), (c), (d), (f). Her opinion is that the Application does not meet these criteria of the Act. The Application introduces lots that are too narrow along a High-Capacity Arterial Road. The application does not conform with the OP or any adjacent plans of subdivision. This is contrary to the intensification policies of the OP.
23Section 5.4.7 of the OP states:
For arterial streets in established urbanized areas, development and redevelopment will consider the appropriateness of revising access to other streets, satisfactory spacing and design of access locations, and possible needs for widening as described under policy 5.3.2. New development or redevelopment that would require backing a motor vehicle onto High or Medium Capacity Arterial Streets will not be permitted.
24In Ms. Gilbertson's opinion, the proposed lots, if approved, will cause challenges, as the Appellant has not demonstrated that the new lots will allow for proper entrance and exit onto Water Street. The Applicant has not shown how vehicular traffic from the properties will be able to safely enter Water Street in a manner that will not require backing onto the Arterial Road.
25Section 51 (25) (c) of the Act includes the requirement,
when the proposed subdivision abuts on an existing highway, that sufficient land, other than land occupied by buildings or structures, be dedicated to provide for the widening of the highway to such width as the approval authority considers necessary.
26Ms. Gilbertson opined that Water Street is a High-Capacity Arterial Road as per the OP. As such, the OP depicts a total road width allowance of 30 metres for Water Street. The current width of Water Street is 19.5 metres. Even though the widening is not to be done in the foreseeable future, the City still has the right to take the 6.5 metres from the SP it deems necessary for the widening. The 6.5 metres would be taken from both the retained land as well as the new severed lands. The new driveway that was established in 2021 at the front of the retained lands would be taken by the City as a part of the road allowance. This would leave the retained lands without a driveway upon which to park vehicular traffic. In her opinion, the Consent Application does not conform to the OP or to s. 51 (24), (25) and s. 53(19) of the Act.
27With regards to the OP infill housing policies, policy 4.2.2.1.3 states:
Infill housing is housing which is developed on vacant land in an existing residential area which makes use of existing infrastructure and has a form and scale compatible with the surrounding area. Infill housing may be permitted in the Low-Density Residential designation through an amendment to the Zoning By-law and subject to the following provisions:
i) infill housing may be in the form of single detached, semi-detached, attached dwellings and low-rise apartments. While infill housing may be allowed up to a maximum scale permitted under the Medium Density Residential designation, lower height and density guidelines will normally be prescribed in the Zoning By-law to ensure that infill housing projects are sensitive to the scale and physical characteristics of development in the surrounding neighbourhood.
ii) infill housing should be sensitive to the continuity of the existing residential streetscape.
iii) adequate off-street parking and landscaped open space will be provided as part of an infill housing development. The parking area will be suitably buffered so as not to visually intrude on adjacent residential properties.
iv) where an application for Zoning By-law Amendment is made pursuant to Section 4.2.2.1.3, the provision of Sections 4.2.5.6 and 4.2.5.7 shall apply.
28Ms. Gilbertson opined the Consent Application is not sensitive to the scale and physical characteristics of the surrounding neighbourhood. The Application will not provide adequate off-street parking and landscaped open space.
29Overall, Ms. Gilbertson's opinion was that the Consent Application does not meet the criteria, as listed above, of the Act or the OP, and should be denied.
MINOR VARIANCE APPLICATIONS
Maintains the General Intent and Purpose of the OP
30Ms. Gilbertson stated that the OP sections stated above, specifically, s. 5.4.7 and s. 4.2.2.1.3, also apply to the Minor Variance applications.
31Section 5.4.7 focuses on motor vehicle traffic on Arterial roads. The Appellant has not demonstrated how vehicular traffic can safely enter Water Street without backing up. This creates a massive safety issue with regards to traffic entering an Arterial Road. It was her opinion that the applications have failed this part of the OP.
32Section 4.2.2.1.3 focuses on infill housing. It was Ms. Gilbertson's opinion that the Minor Variance applications are not sensitive to the scale and development of the neighbourhood. The applications have not demonstrated how off-street parking can be adequately provided and do not meet the requirements of this policy.
Maintains the General Intent and Purpose of the ZBL
33As for the ZBL, Ms. Gilbertson opined that the new proposed lot widths do not fit into the fabric of the existing neighbourhood. Lots in the neighbourhood are either in the vicinity of the existing lot size or larger. The proposed lots are too narrow and have not demonstrated adequate vehicle turning radiuses. The City envisions a redevelopment of Water Street in the future. This redevelopment would be accomplished through land assembly, not by severing existing lots. In her opinion, the general intent and purpose of the ZBL is not maintained.
Desirable for the Appropriate Use of the Land, Building or Structure
34In Ms. Gilbertson's opinion, the creation of these two lots will result in parking that is to be located at the front of both properties. Both of these parking areas make entering or leaving the proposed lots a challenge at the best of times. The parking currently located at the front of the proposed retained lands is not a viable long-term solution as the parking area is wholly within the road widening right of way associated with the Arterial Road (Water Street). In her opinion, Ms. Gilbertson stated that this is not an appropriate use of the land.
Minor in Nature
35In Ms. Gilbertson's opinion, since the applications have failed the first three tests of a Minor Variance, the applications also fail this last test. In her opinion, the Application's implications are not minor in nature.
Overall Opinion
36Ms. Gilbertson's conclusionary opinion was that the proposed consent application does not conform to the PPS, the GP or the City OP. The proposed development in not in the public interest and is not a good use of land planning.
37Ms. Gilbertson opined that the Minor Variance Applications have failed all the tests as set out in s. 45(1) of the Act. The Applications as presented should be denied.
TRAFFIC EXPERT – VINOD SOMAN
38Mr. Soman took the Tribunal through his Witness Statement and the concerns that he had with regard to the applications. Since Water Street is a High-Capacity Arterial Road, traffic safety and traffic flow were the triggering factors as to why he could not recommend the applications be approved.
39Mr. Soman opined that the Appellant has not demonstrated how the new driveways for both lots could account for vehicular traffic to turn around. If the vehicles cannot turn around on the proposed lots, then, as per s. 5.4.7, the Applications do not conform to the OP. Properties located on an Arterial Road must demonstrate that they can enter the aforementioned Arterial Road in a safe manner in a forward direction only. Vehicles are not allowed to back out of a property onto an Arterial Road.
40In Mr. Soman's opinion, the drawing submitted by the Applicant's transportation engineer did not demonstrate the appropriate parking or turning radius movements needed for each of the proposed lots. As such, if the consent application was to be approved, the outcome would be an unsafe condition for vehicles either entering the parking areas or leaving the parking areas.
41If the consent application was to be approved, it was Mr. Soman's opinion that the right-of-way road widening would result in both the Severed Lands and Retained Lands from having adequate and suitable parking after the 6.5 metres was expropriated by the City for the road widening.
Conclusionary Opinion
42In conclusion, Mr. Soman opined that due to the inadequacy demonstrated by the Applicant's transportation engineer with regards to parking and turn around space, the inadequacy of demonstrated parking after the road widening was completed, the applications should be denied. Safety has not been demonstrated for such issues as oncoming traffic, pedestrians or other forms of people movement.
APPELLANT - MR. BARTON
43Mr. Barton stated that he had provided all the necessary information as required by City Staff. He stated that he was not wanting to re-zone the property. He was asking for the Minor Variance applications as he was aware that the proposed lots would need these variances approved in order to conform to the City OP.
44Mr. Barton stated that he understands that the City has the right to expropriate the land(s) necessary in order to complete the widening of Water Street. However, he stated, this widening is not in the foreseeable plans of the City.
45As for the vehicle turn around issue, Mr. Barton stated that the required turn around for a vehicle of 5.7 meters would be for a small commercial vehicle. This is a residential property, and a commercial vehicle should not be taken into account for the calculations needed for the turn around area.
46Mr. Barton stated that the proposal is in the public interest as the new lot could be used to help create affordable housing, which is needed in the City.
ANALYSIS AND FINDINGS
47In coming to a Decision in this matter, the Tribunal must have regard to the evidence that was presented before it and it must have regard to the decision of the COA and the items presented before the COA.
48With regard to the totality of the evidence presented, the Tribunal finds that the Appellant has not demonstrated that the Minor Variance Applications meet the four tests as set out in s. 45(1) of the Act.
49The Appellant did not provide any testimony that would refute the expert opinion evidence that was provided by the City's expert witnesses in regard to the Minor Variance Applications.
50The Appellant did not provide any evidence to dispute the opinion evidence given by the expert witnesses that the Consent Application failed to be consistent with the PPS, conform to the GP or the City OP.
51The Tribunal is in agreement with the Appellant that intensification and infilling is needed in order to provide more housing options; however, the Applications, as presented, do not provide a form on intensification that could be considered good land use planning.
ORDER
52THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to the City of Peterborough Comprehensive Zoning By-law No. 97-123 are not authorized.
53THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is not to be given.
"S. deBoer"
S. deBOER
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.