DeLuca v. Bradford West Gwillimbury (Town), 2024 CanLII 102778

Ontario Land Tribunal

Issue Date: October 18, 2024

Case No(s).: OLT-24-000671

Proceeding Commenced Under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Dino & Jim DeLuca

Subject: Minor Variance

Description: To permit the creation of 2 new lots

Reference Number: D13-24-01

Property Address: 108 Moore Street

Municipality/UT: Bradford West Gwillimbury/Simcoe

OLT Case No.: OLT-24-000671

OLT Lead Case No.: OLT-24-000671

OLT Case Name: DeLuca v. Bradford West Gwillimbury (Town)

Proceeding Commenced Under subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Dino & Jim DeLuca

Subject: Consent

Description: To permit the creation of 2 new lots

Reference Number: D10-24-02

Property Address: 108 Moore Street

Municipality/UT: Bradford West Gwillimbury/Simcoe

OLT Case No.: OLT-24-000672

OLT Lead Case No.: OLT-24-000671

Heard: September 11, 2024 by Video Hearing

Parties and Counsel/Representative

Dino and Jim DeLuca Ernest Sperling*

Town of Bradford West Gwillimbury Leo Longo

DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION AND BACKGROUND

1The matters before the Tribunal were Appeals pursuant to s.53(19) and s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 ("Act") by Dino and Jim DeLuca, ("Applicant") against the decision by the Town of Bradford West Gwillimbury ("Town") Committee of Adjustment ("CoA") to refuse applications for provisional consent and minor variances ("Applications").

2The subject property, municipally known as 108 Moore Street Bradford, West Gwillimbury ("Subject Property), is a 0.10 hectares parcel of land zoned Residential One "R1-1". The Applicant seeks to sever the parcel to enable the creation of three (3) lots representing a net increase of two (2) lots.

3The proposal includes the severance of a 340.1 square metre sized parcel from the existing parcel which would result in two (2) retained lots with respective lot areas of 347.4 square metres and 315.2 square metres. In addition, the Applicant seeks minor variances to permit reductions in the minimum required lot area (from 510 square metres to 315.2 square metres), in the minimum required rear yard (from 7.5 metres to 5.0 metres), and in the minimum required exterior side yard (from 3.5 metres to 2.7 metres).

4The Applications were filed with the Town, and according to the Staff Planning Report dated May 22, 2024 ("Staff Report"), the Town was in support of the Applications subject to conditions. The CoA denied the Applications.

5On June 3, 2024, the Applicant filed Appeals to this Tribunal. There were no issues raised regarding the Administrative Notice of this Hearing dated July 24, 2024.

6The Tribunal did not receive any Party or Participant Status Requests in advance of the hearing, and no one appeared at the hearing requesting Party or Participant Status.

7For the reasons that follow, the Tribunal finds that the Appeals should be allowed, and the Applications authorized with conditions as discussed below.

HEARING

8Mr. Sperling, the representative of the Applicant, confirmed that the Applicant was not producing any witnesses and was relying solely on the filed Staff Report and his submissions. He advised that the Applicant did not object to the decisions in the Applications. However, the Applicant took issue and objected to some of the imposed conditions as will be discussed below.

9The Town advised that should the Tribunal allow the appeals to be heard, given that there was no evidence filed other than the Staff Report, confirmation that there would be no witness, and no summons for witnesses, the Town requested that the conditions be imposed to any approval decision.

10Upon considering the position of the parties, the Tribunal allowed the Appeals to be heard because the parties were present and ready to speak to the matters at hand.

LEGISLATIVE TEST

11With respect to the Appeal under s. 53(19) of the Planning Act ("Act"), in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must be satisfied that a plan of subdivision is not necessary. If not, then regard must then be given to the applicable criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to the applicable Official Plans; the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services.

12With respect to minor variances, s. 45 (1) of the Act, the Tribunal must be satisfied that the requested variances:

a. maintain the general intent and purpose of the regional Official Plan ("OP") and the Town OP;

b. maintain the general intent and purpose of the Zoning By-law ("ZB");

c. are minor in nature; and

d. are desirable for the appropriate development or use of the land, building or structure.

13Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Policy Statement, 2020 ("PPS"), the Growth Plan for the Greater Golden Horseshoe ("Growth Plan") and have regard to matters of provincial interest, as well as for the decision of the approval authority and the information that was before it.

ANALYSIS AND FINDINGS

Provincial Policy Statement, 2020

14The Staff Report advises that the PPS, under section 1 and various subsections, directs growth and development to "Settlement Areas" and promotes development standards that facilitate intensification, redevelopment, and compact form. The Subject Property is located in a settlement area. The Staff Report found that the proposal which would result in the net increase of two residential building lots would represent modest intensification within the Town. As such, staff found that the consent application for the creation of new lots is consistent with the PPS.

Growth Plan for the Greater Golden Horseshoe

15The Staff Report advises that the Growth Plan, under section 2 and various subsections, directs growth to settlement areas that have a delineated built boundary; have existing planned municipal water and wastewater systems; and can support the achievement of complete communities. The Staff Report found that the proposal for new residential lots in the Town is inline with all the requisite policies.

Official Plans

16The Staff Report advises that the County of Simcoe Official Plan, 2016 ("SCOP"), under section 3 and various subsections, directs that settlement areas are to be the focus of development and are developed at higher densities with services in place. The Subject Property is located within the Bradford Urban Area and is on existing municipal services. As such, there is encouragement for a diverse range of housing options. The net addition of two new lots will encourage housing via detached dwellings. Additionally, the Staff Report found that the subdivision of land (by consent), are permitted only for land uses in the designation or that maintain the intent of the OP. The Staff found that the proposed severance conforms to the general intent and purpose of the OP.

17Furthermore, the Staff Report advises that in the Town OP, the Subject Property is designated as "Residential Build Up" with permitted uses being a range of dwelling units including low density residential uses. Section 3 and the various subsections speak to the various criteria in the evaluation of development applications.

18In evaluating the proposal against the criteria, the Staff found that the creation of 3 single detached dwellings for residential purposes is compatible with the surrounding neighbourhood which consists of detached and semi-detached dwellings. The proposed development will maintain the lot frontages and front yard setbacks for the three (3) proposed lots, keep the viewable setbacks consistent with the surrounding neighborhood and meets the requirements of the ZB. In addition, Staff found that there is sufficient infrastructure to support water, wastewater, stormwater management, waste management and fire protection and that the proposed development would not have an impact on the existing transportation system. In the end, the Staff Report found that the proposed use is inline with the existing designation and that the consent Application conforms to the Town OP, subject to conditions as will be discussed later in this decision.

19With respect to the Minor Variances, as outlined in s. 45(1) of the Act, they must be shown to maintain the intent and purpose of the OP. Similar to the consent, the minor variances, which become required as a result of the consent, would allow for the intent and purpose of the OP to be maintained since the Subject Property is within the Braford Urban Area and designated "Residential Build Up" in the Town OP which allows for a range of dwelling types including the detached dwellings.

Zoning Bylaw 2010-050, as amended

20The Staff Report found that in reviewing the zoning standards against the severed and retained parcels, the parcels would not comply with the applicable provisions of the ZB. As such, a Minor Variance Application was submitted. The Staff Report noted that subject to the approval of the variances, the requested variance would comply with the provisions of the ZB.

21Regarding the Minor Variances, the requirements of the lot size and the rear and side yard setbacks with respect to the Residential One "R1-1" zone for a single detached dwelling are as follows: Minimum lot size is 510 square meters, minimum rear yard setback is 7.5 meters and minimum exterior side yard setback is 3.5 meters. The requested variances are as follows: Lot size for Lot 1, 340 square meters (severed lot), Lot 2, 347.4 square meters (retained lot) and Lot 3, 315.2 square meters (retained lot); and rear yard set back Lot 1, 5.0 meters (severed lot) and Lot 3, 5.0 meters (retained lot); exterior side yard setback Lot 3, 2.7 meters (retained lot).

22According to the Staff Report, the smaller lot sizes requested by the Applicant would support the development of three detached homes all while maintaining frontages and side yard setbacks and front yard setbacks. The Staff Report found that the requested 5.0 meters rear yard setback would allow future property owners to enjoy their rear yard amenity space, allow space for typical rear yard amenities such as patios, gardens and play structures. In addition, the reduction in rear yard setback allows the proposed dwellings to be in line with neighboring properties. Staff noted that the minimum front yard setback in the "R1-1" zone is 3.0 m, permitting dwellings to be brought forward closer to the street while maintaining sightlines with other houses on the street. Furthermore, the Staff noted that there is no concern regarding the drainage of the Subject Property, but as a condition of the Consent application approval, the Applicant is required to enter into a Development Agreement, whereby matters such as overall lot, and individual lot grading, drainage patterns, servicing, landscaping, and fencing can be determined. Discussion regarding conditions is found further below in this decision.

23Lastly, the Staff Report advised that Development Engineers did not identify any concerns regarding the reduced exterior side yard setback. The Staff noted that Moore Street is a one-way lane with 40km/h speed limit without significant traffic volume which would not result in any negative impacts from the reduced exterior side yard setback. Of note, the Staff advised that the 2.7 requested exterior side yard setback was the result of the Town requiring a 0.8 right of way for the purpose of ensuring Town infrastructure on Town lands. In sum, the Staff found that the requested variances maintained the purpose and intent of the ZB.

Desirable for the Appropriate Development use Lands

24The Staff Report found that the requested variances are desirable for the appropriate development of the lands as it is in line with the recently adopted work plan for growth and management which establishes an "intensification first" approach. The proposal for the development of three lots represents modest intensification in an established area. In addition, as discussed above, the requests allow for adequate drainage patterns, appropriate rear yard amenity space and an appropriate built form in an established residential neighbourhood while maintaining the current neighbourhood identity.

Variances are Minor

25The Staff Report found that the proposed developments are minor in nature since the requested variances would allow the Applicant to move forward with the severance of an existing property and the creation of three new detached dwellings in a residential area.

PROPOSED CONDITIONS TO THE MINOR VARIANCE APPLICATION

26The Staff Report outlined several conditions for the approval of the consent and minor variance applications, which are detailed below:

Conditions of Consent

1. That the requested severance, apply only to the lands described as Part of Lots 88 to 90 on Plan 56, North of Frederick Street; being Part 2 on Plan 51R-41123, and municipally known as 108 Moore Street and that the lot fabric of the severed and retained lots be as shown on the site plan drawing submitted in respect of the subject Consent Application attached as Schedule A to this decision.

2. That the requested severance be subject to seeking relief from the provisions of Town of Bradford West Gwillimbury Zoning By-law 2010-050, as amended for minimum lot area and reduced rear yard and reduced exterior side yard;

3. That the Owner be required to enter into a Development Agreement with the Town of Bradford West Gwillimbury that covers, but is not limited to such matters as overall lot grading, servicing, access, drainage, individual lot grading plans, costs, insurance, etc.;

4. That the Owner shall submit to the Secretary-Treasurer of the Committee of Adjustment two reference plans of survey, duly deposited in the Office of the Registrar for the County of Simcoe, which sets out the following road widening conveyances to be transferred to the Corporation of the Town of Bradford West Gwillimbury as a part on the reference plan, subject to the satisfaction of the Town of Bradford West Gwillimbury Development and Engineering Department:

a. 0.8 metres in depth/width adjacent to the existing Moore Street right-of-way;

b. A 3.5 metre by 3.5 metre daylight triangle at the intersection of the Frederick Street and Moore Street rights-of-way, as established following the conveyances referenced in points "a" and "b", above;

5. That any applicable Development Charges are payable in accordance with the Development Charge By-law provisions;

6. That the Cash-in-Lieu of Park Land, as per Section 53 (13) of the Planning Act be paid, prior to the issuance of the certificate of consent of the Secretary-Treasurer;

7. That all other applicable fees, for example, municipal addressing, legal, engineering and planning consultant fees, incurred on behalf of the Applicant, and any outstanding taxes, are payable prior to the issuance of the certificate of consent of the Secretary-Treasurer;

8. That the Owner gives a registrable description for the subject and retained parcels by way of a deposited Plan of Survey, of the lands to which this application applies to the Secretary-Treasurer of this Committee and provide two paper copies of the Plan, as well as a digital copy to the Town; and,

9. That the Owner submit site plan and exterior elevation drawings for the proposed development of each of the severed and retained parcels to the satisfaction of the Office of Community Planning, whereby the future development on site pays homage to history of the former 108 Moore Street, hereby referred to as "The Collings House." Such condition is reflective of a prior Council resolution.

10. That the Office of Community Planning provides confirmation in writing that the proposed severed and retained parcels, which are the subject of this application, comply with the provisions of Zoning By-law 2010-050, or any relief granted through Minor Variance applications.

27Mr. Sperling submitted that the Applicant agreed with all of the conditions except numbers 3, 4 and 9.

28With respect to the condition requiring a Development Agreement (number 3), he submitted that it was too onerous and that a service agreement would be sufficient. He submitted that the Development Agreement would be costly and would result in further delays. Mr. Sperling did not provide the Tribunal with examples of service agreements nor present any evidence regarding how a Development Agreement would be onerous or problematic. Counsel for the Town advised the Tribunal that Mr. Sperling was provided with the conditions that would be put into a development agreement which were aimed at protecting the public interest and were in fact not onerous. He further submitted that the conditions imposed, including this particular condition, was related to locating homes where they want them to be located. Counsel submitted that the Applicant cannot rely on an entire Staff Report which includes several conditions but "pick and choose" elements of the Report which favours his position and neglect other elements, including this condition, which are the basis of the favourable position. Absent any evidence of a Development Agreement being onerous nor any other recommendation provided, the Tribunal finds that the condition requiring a Development Agreement will be imposed.

29With respect to the condition regarding the right of way (condition 4 a.), the Applicant submitted that an easement would suffice. Again, the Applicant did not provide any evidence nor adequately explain why an easement and not a right-of-way would be appropriate. Counsel for the Town submitted that with this condition, the Town is taking the minimum dedication to bring a light pole and stop sign within its ownership. He submitted that it would be appropriate to allow the road widening together with the daylight triangle (4 b.) which is a standard condition. An easement would not suffice. The Tribunal agrees with counsel for the Town to impose this condition.

30Regarding the condition for Site Plans for each severed lot (condition number 9), the Town agreed to drop this condition and it is no longer required.

Minor Variance Conditions

31Counsel for the Town advised that the Town requested the minor variance conditions be imposed on any approval of the minor variance Application. Mr. Sperling submitted that the Applicant agreed to all of the conditions of the minor variance Application suggested by the Town. The Tribunal accepted the submission of the parties and agrees to attach the following conditions to the minor variance application:

a. That the requested variance for minimum lot area apply only to the lot labeled as RET-1 on the severance sketch submitted in respect of the minor variance and consent application Schedule A which currently has the municipal address of 108 Moore Street;

b. That the requested variance for minimum lot area and rear yard setback apply only to the lot labeled as SEV-1 on the severance sketch submitted in respect of the minor variance and consent application, which currently has the municipal address of 108 Moore Street.

c. That the requested variance for minimum lot area, rear yard setback and exterior side yard setback apply only to the lot labeled as RET-2 on the severance sketch submitted in respect of the minor variance and consent application, which currently has the municipal address of 108 Moore Street.

FINDINGS

32The Tribunal finds that based on the filed materials and submission of the parties that the Applications represents good land use planning, satisfy all legislative tests as detailed above and are approved. The Applications are consistent with policy directives of the PPS, conform to the policy intent of the Growth Plan, the SCOP, and the Town OP. The Tribunal is satisfied that the criteria listed in s. 51(24) are met and the Proposal has regard for matters of Provincial interest as listed in s. 2 of the Act. Moreover, the minor variances requested individually and collectively meet the prescribed test as set out in s. 45 of the Act. As such, the Applications should be approved, subject to the Conditions of Approval recommended in the Staff Report.

ORDER

33THE TRIBUNAL ORDERS THAT the Appeal by the Applicant pursuant to s. 53(19) of the Planning Act is allowed and provisional consent is given subject to all of the following conditions:

1. That the requested severance, apply only to the lands described as Part of Lots 88 to 90 on Plan 56, North of Frederick Street; being Part 2 on Plan 51R-41123, and municipally known as 108 Moore Street and that the lot fabric of severed and retain lots be as shown on the site plan drawing submitted in respect of the subject Consent Application attached as Schedule A to this decision.

2. That the requested severance be subject to seeking relief from the provisions of Town of Bradford West Gwillimbury Zoning By-law 2010-050, as amended for minimum lot area and reduced rear yard and reduced exterior side yard;

3. That the Owner be required to enter into a Development Agreement with the Town of Bradford West Gwillimbury that covers, but is not limited to such matters as overall lot grading, servicing, access, drainage, individual lot grading plans, costs, insurance, etc.;

4. That the Owner shall submit to the Secretary-Treasurer of the Committee of Adjustment two reference plans of survey, duly deposited in the Office of the Registrar for the County of Simcoe, which sets out the following road widening conveyances to be transferred to the Corporation of the Town of Bradford West Gwillimbury as a part on the reference plan, subject to the satisfaction of the Town of Bradford West Gwillimbury Development and Engineering Department:

a. 0.8 metres in depth/width adjacent to the existing Moore Street right-of-way;

b. A 3.5 metre by 3.5 metre daylight triangle at the intersection of the Frederick Street and Moore Street rights-of-way, as established following the conveyances referenced in points "a" and "b", above;

5. That any applicable Development Charges are payable in accordance with the Development Charge By-law provisions;

6. That the Cash-in-Lieu of Park Land, as per Section 53 (13) of the Planning Act be paid, prior to the issuance of the certificate of consent of the Secretary-Treasurer;

7. That all other applicable fees, for example, municipal addressing, legal, engineering and planning consultant fees, incurred on behalf of the Applicant, and any outstanding taxes, are payable prior to the issuance of the certificate of consent of the Secretary-Treasurer;

8. That the Owner gives a registrable description for the subject and retained parcels by way of a deposited Plan of Survey, of the lands to which this application applies to the Secretary-Treasurer of this Committee and provide two paper copies of the Plan, as well as a digital copy to the Town; and,

9. That the Office of Community Planning provides confirmation in writing that the proposed severed and retained parcels, which are the subject of this application, comply with the provisions of Zoning By-law 2010-050, or any relief granted through Minor Variance applications.

34THE TRIBUNAL FURTHER ORDERS THAT that the Appeal by the Applicant pursuant to s. 45(12) of the Planning Act is allowed and the variances to Zoning By-law No. 2010-050, to permit reductions in the minimum required lot area (from 510 metres squared to 315.2 metres squared), in the minimum required rear yard (from 7.5 metres to 5.0 metres), and in the minimum required exterior side yard (from 3.5 metres to 2.7 metres), are authorized, subject to all of the following conditions:

1. That the requested variance for minimum lot area apply only to the lot labeled as RET-1 on the severance sketch submitted in respect of the minor variance and consent application Schedule A which currently has the municipal address of 108 Moore Street;

2. That the requested variance for minimum lot area and rear yard setback apply only to the lot labeled as SEV-1 on the severance sketch submitted in respect of the minor variance and consent application, which currently has the municipal address of 108 Moore Street.

3. That the requested variance for minimum lot area, rear yard setback and exterior side yard setback apply only to the lot labeled as RET-2 on the severance sketch submitted in respect of the minor variance and consent application), which currently has the municipal address of 108 Moore Street.

"Yasna Faghani"

YASNA FAGHANI 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.