Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 11, 2023
CASE NO(S).:
OLT-23-000128
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Paul Phelps
Applicant:
Evergreen Estates Inc.
Subject:
By-law No. 23-04
Description:
To change the zoning to facilitate the development of 44 residential units
Reference Number:
26Z-16-2105
Property Address:
9 and 11 Kerman Avenue
Municipality/UT:
Town of Grimsby
OLT Case No.:
OLT-23-000128
OLT Lead Case No.:
OLT-23-000128
OLT Case Name:
Phelps v. Grimsby (Town)
Heard:
July 26, 2023 in writing
APPEARANCES:
Parties
Counsel
Paul Phelps
Self-represented
Town of Grimsby
J. Pappas
Evergreen Estates Inc.
C. Boer
DECISION DELIVERED BY S.L. DIONNE AND C. I. MOLINARI ON JULY 26, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from a settlement hearing that was held regarding an appeal brought by Paul Phelps (“Appellant”) against a decision of the Town of Grimsby (“Town”) approving an application (“Application”) for a Zoning By-law Amendment (“ZBA”) to facilitate development on lands known municipally as 9 and 11 Kerman Avenue (“Subject Lands”).
2The Town also approved related Draft Plan of Subdivision (“DPS”) and Draft Plan of Condominium (“DPC”) applications proposing the creation of 44 residential lots (two single-detached and 42 semi-detached) along with a municipal road, a common element condominium road and a private amenity space (“Proposed Development”). The DPS and DPC were not appealed and are not matters before the Tribunal.
3The Appellant resides at 17 Kerman Avenue and also owns 15 Kerman Avenue, a vacant residential lot abutting the Subject Lands. His concerns pertain to issues of land use compatibility, privacy and overlook, and Official Plan conformity.
4The Tribunal had scheduled a one-day video hearing for June 27, 2023, to hear the merits of the Appeal, however this was cancelled at the request of the Parties on the basis that they had reached a resolution of the issues in dispute and had entered into Minutes of Settlement (“MoS”). A request was made for the scheduling of a Settlement Hearing at the earliest date and that it be conducted as a written hearing.
WRITTEN SUBMISSIONS
5The Tribunal acknowledges receipt of the Affidavit of John Ariens, MCIP, RPP, sworn on July 26, 2023, and marked by the Tribunal as Exhibit 1, which contains the following:
Mr. Ariens’ Acknowledgement of Expert’s Duty (“AED”) and Curriculum Vitae (“CV”);
Planning Justification Report prepared by IBI Group, dated and signed August 20, 2021;
Town Planning Staff Recommendation Report to the Committee of the Whole dated December 5, 2022, which recommends approval of the ZBA, DPS, and DPC subject to conditions as set out therein;
Comments from the public received by way of submissions at a public open house and other written submissions before Council at the time of its Decision;
By-law 23-04 as passed by the Town Council, and
The settlement proposal between the Parties (“Settlement Proposal”) as set out in the fully executed MoS and the proposed modifications to the ZBA to which the Parties consented to.
6Mr. Ariens has been previously qualified by the Tribunal and has previously appeared before the Tribunal to provide independent expert opinion evidence. Having reviewed Mr. Ariens’ AED and CV, the Panel qualified him to provide opinion evidence as an expert in land use planning and accepted his signed and dated AED as his oath to have told the truth in his submissions to the Tribunal.
7The Tribunal also acknowledges receipt of the proposed modified ZBA, marked as Exhibit 2 and submitted to the Tribunal for its consideration.
BACKGROUND AND CONTEXT
8The Subject Lands are an assembly of two parcels having a combined area of approximately 1.72 hectares located in a relatively mature residential neighbourhood north of Main Street West, east of Sumac Court, and west of Kerman Avenue in the Urban Settlement Area of Grimsby. At present, a single detached dwelling and garage exist at 11 Kerman Avenue. Greenhouses, ancillary office space, an accessory dwelling, and buildings exist at 9 Kerman Avenue.
9The Subject Lands are designated ‘Low Density Residential Area’ in the Town’s Official Plan (“TOP”), which applies to existing low density, stable residential neighbourhoods throughout the Grimsby Urban Settlement Area. It is the intent of the TOP that these neighbourhoods be protected from significant redevelopment while at the same time permitting on-going evolution and rejuvenation. Both single-detached and semi-detached dwellings are permitted uses in this designation.
10The Proposed Development would replace the existing uses (including the non-conforming greenhouse use) with a residential infill type development, thereby contributing to the overall housing supply.
11Policy 3.4.7.2 a) and b) of the TOP pertain to considerations for new development, in that it should be compatible with adjacent and neighbouring built form by ensuring that the siting and massing of new buildings does not result in undue adverse impacts on adjacent properties, particularly in regard to privacy conditions for residential buildings and their outdoor amenity areas.
PROPOSED SETTLEMENT
12The proposed ZBA seeks to rezone the Subject Lands from ‘Residential Detached 1 (RD1.15) Zone’ to ‘Residential Detached 1 (RD1.25) Zone’, from ‘Residential Detached 1 (RD1.15) Zone’ to ‘Residential Multiple 1 (RM1.44) Zone’, and from ‘Neighbourhood Development (ND) Zone’ to ‘Residential Multiple 1 (RM1.55) Zone’, as well as to establish site-specific standards related to setbacks and parking to implement the Proposed Development.
13In order to satisfy the Appellant that privacy and overlook are mitigated as much as possible, the Parties have agreed that any semi-detached dwellings to be constructed on Lots 2 and 3 on the DPS (situated within Area “B” on Exhibit 2) would not have a second floor projecting above the first floor along the north building elevation and would not have second floor windows along the north and east elevations, except for skylights located at the north roof elevation.
14It is Mr. Ariens’ uncontroverted evidence that the proposed modifications to the ZBA represent a minor adjustment, will still result in the full redevelopment of the Subject Lands as was applied for and approved by the Town, and that the proposed modifications will further enhance compatibility in terms of the interface with the Appellant’s lands. Mr. Ariens opined that the proposed modifications to the ZBA address all matters of provincial interest set out in the Planning Act (“Act”), are consistent with the Provincial Policy Statement, 2020 (“PPS”), are in conformity with the Greenbelt Plan (2017) (“Greenbelt Plan”) and the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), and conform to the Region of Niagara Official Plan (“ROP”) and the TOP. Further, Mr. Ariens opined that the proposed modifications will result in good land use planning and will be in the overall public interest.
ANALYSIS AND FINDINGS
15The Tribunal notes that this matter comes on consent of all Parties, and that the Settlement Proposal addresses and mitigates the issues of privacy and overlook of concern to the satisfaction of those directly involved.
16The Tribunal, in accordance with s. 2.1(1) of the Planning Act (“Act”), has had regard for the decision of the Town Council and the information and material that were before the Town Council, including the issues and concerns raised by the Appellant and other members of the public before making its decision.
17Further, the Tribunal has considered and accepts the uncontroverted Affidavit evidence of Mr. Ariens. The proposed amendments to the ZBA allow the full build out of the proposed development but at the same time accepts the private interest of the Appellant. The Tribunal commends the Parties on arriving at a solution where the public interest has been maintained.
18The Tribunal finds that the proposed ZBA, as modified in accordance with the Settlement Proposal, has appropriate regard for the relevant matters of provincial interest set out in s. 2 of the Act, is consistent with the PPS, is in conformity with the Greenbelt Plan and the Growth Plan, and conforms to the ROP and the TOP. In addition, it addresses the Appellant’s issues of concern with respect to land use compatibility and will facilitate a residential infill development that will represent good land use planning in the public interest.
19The Tribunal is satisfied that the version of the ZBA before the Tribunal in Exhibit 2 is appropriate and should be approved.
ORDER
20THE TRIBUNAL ORDERS that the appeal against By-law No. 23-04 of the Town of Grimsby is allowed in part and By-law No. 23-04 is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal orders that the appeal is dismissed.
“S.L. Dionne”
S.L. DIONNE
MEMBER
“C.I. Molinari”
C. I. MOLINARI
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1