Marcoux et al. v. Welland (City), 2024 CanLII 25580

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 19, 2024

CASE NO(S).: OLT-24-000007

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

Applicant and Appellant: Diane Marcoux, Shawn Marcoux and Tricia Poulin

Subject: Consent

Description: To sever the property for two separate uses.

Reference Number: A50-2023 and B025-2023WELL

Property Address: 48 Valencourt Drive

Municipality/UT: Welland

OLT Case No.: OLT-24-000007

OLT Lead Case No.: OLT-24-000007

OLT Case Name: Marcoux et al. v. Welland (City)

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

Applicant and Appellant: Diane Marcoux, Shawn Marcoux and Tricia Poulin

Subject: Minor Variance

Description: To sever the property for two separate uses.

Reference Number: A50-2023 and B025-2023WELL

Property Address: 48 Valencourt Drive

Municipality: Welland

OLT Case No.: OLT-24-000008

OLT Lead Case No.: OLT-24-000007

OLT Case Name: Marcoux et al. v. Welland (City)

Heard: March 13, 2024 by video hearing

APPEARANCES:

Parties	Counsel
Diane Marcoux, Shawn Marcoux, and Tricia Poulin (“Applicants” or “Appellants”)	Thomas G. Hanrahan
City of Welland (“City”)	DID NOT APPEAR

DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This was the first and only Tribunal Hearing event pertaining to a Consent and Minor Variance Application pertaining to the lands Municipally known as 48 Valencourt Drive (“Subject Lands”) in the City.

2For the reason provided in this decision, the Tribunal grants the approval of the appeals with conditions as provided in the Order below.

BACKGROUND

3The Planning Report came before the Committee of Adjustment (“COA”) on December 13, 2023, provided recommendations of approval for applications for consent, with conditions and minor variances pertaining to the Subject Lands.

4The Subject Lands are an irregular “U” shaped parcel, having two separated frontages along Valencourt Drive. The first portion of the frontage is 17.98 metres in width, where the existing residential dwelling fronts. The second portion of the frontage is 2.8 metres in width and contains the driveway to access the accessory structure (“garage”) in the rear yard of the Subject Lands. The “carved” out section of the “U” is a separate developed residential parcel (the land Municipally known as 44 Valencourt Drive) which the Subject Lands borders the rear and side lot lines, thus having two frontages.

5The purpose of the consent application is to sever the existing dwelling from the Subject Lands, mirroring a shape and size and most notably, depth as the dwelling situated between the two frontages (the land Municipally known as 44 Valencourt Drive), leaving the second frontage as access and part of the retained lot (rear yard) containing the existing garage and driveway.

6A detailed sketch of the proposed consent can be found in Exhibit 1, Tab 14 (page 67).

7All provisions of the consent applications are met with the exception of lot frontage of the retain lot (12 metres is required and 2.4 metres is being requested), and to permit the existing garage on the retained lands without a principal use, building or structure. Thus, the requirement for the Minor Variance Application.

8The COA refused the Consent application stating the proposed lots are not consistent or compatible with the neighbouring properties and did not meet the character of the neighbourhood.

9The COA denied the Minor Variance application stating the variances would impact the adjoining properties and would not be compatible with the surrounding area and did not meet all four tests of a minor variance.

STATUS REQUEST

10Prior to the commencement of the hearing the Tribunal received one Participant Status Request. The request was received from James Bettle and M. Catherine Bettle (“Bettle”) who reside at Municipal address 38 Valencourt Drive, the property adjacent to the 2.8 metres driveway of the proposed retained lot. The Bettle’s statement raised their concerns of the future development of the retained lot, possible increased use of existing driveway and safety concerns.

11On consent of the Applicant, the Tribunal granted the Bettle’s Participant request.

THE HEARING

12The City confirmed with the Tribunal that they were not participating in this matter.

13To support the Applicants appeal they summoned Taylor Meadows, who is the Planning Supervisor – Development for the Planning Division for the City, whom approved the planning report presented to the COA. Upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty Form, he was qualified by the Tribunal to provide opinion evidence in land use planning.

14Mr. Meadows reiterated the details of the Planning Report (Exhibit 1, Tab 9, Page 40-45), provided oral evidence, and confirmed to the Tribunal his continued support of the recommendations for approval of the applications.

15Mr. Meadows explained that the Subject Lands were previously two separate lots that had inadvertently merged on the Title. He explained that this fact provides context but specified that his planning opinion is based on the planning policies set today.

16Mr. Meadows confirmed that the matter before the Tribunal is a matter of provincial interest as set out in s. 2 of the Planning Act (“Act”), is consistent with the Provincial Policy Statement (“PPS”), conforms to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) as the proposed Consent intensifies an oversize residential lot in a built-up area, providing a better use of municipal infrastructure and is in close proximity to public transit.

17He went on to explain that the Region of Niagara Official Plan (“NOP”) sets intensification targets for built-up areas and has assigned a 75 percentage target in built-up areas of the City. The City’s Official Plan (“COP”) also promotes and encourages residential intensification and redevelopment of lands within the built-up area.

18Section 4.2.3.6 and 7.9.2 of the COP provide minimum criteria that consent applications and infill developments are evaluated on. As provided in the Planning Report Mr. Meadows is of the opinion that the consent meets those minimum criteria except for the above-noted Minor Variance approvals.

19An application under s. 45, a minor variance, of the Planning Act must meet the four tests as set out in s. 45 (1).

20Mr. Meadows opined that the two requested Minor Variances pass the tests as set out in the Planning Act for the following reasons:

1. Maintains the intent and purpose of the COP:

i. the proposed development aligns with the objectives and policy within the Official Plan.

2. Maintains the intent and purpose of the Zoning By-law (“ZBL”):

i. the property is intended to comply with and maintain all other ZBL Provisions and requirements.

3. Is desirable for the appropriate development of the lands:

i. the proposed uses are considered to be compatible and align with the existing uses in the surrounding area.

a. Is minor in nature:

ii. the requested variances are not considered to adversely impact the adjacent area and seek to re-establish a previously existing condition.

21Mr. Meadows further explained that visually from Valencourt Drive the proposed applications if approved will not materially change the appearance of the area as the dwelling on the proposed severed lot and the driveway leading to the garage on the retained lot are both currently existing.

22As it relates to the Participant Statement Mr. Meadows stated that the retained lot is four times the size that is required in the ZBL and any future development will be required to comply with the ZBL or obtain minor variance approval if required.

FINDINGS

23The Tribunal accepts and concurs with the unconverted land use planning evidence of Mr. Meadows and is satisfied that the Minor Variances meet the four tests as set out in s. 45(1) of the Act and furthermore that the Consent and Minor Variances represent good planning, have regard for matters of provincial interest, are consistent with the PPS, conform to the Growth Plan, NOP and COP.

24The Tribunal finds that the recommended conditions of approval of the Consent as set out in the planning report and Order to this decision are standard and concludes they should be implemented.

ORDER

25THE TRIBUNAL ORDERS:

1. The appeal in OLT Case No. OLT-24-000007 is allowed and the variances to By-law 2017-117 of the City of Welland are authorized.

2. The appeal in OLT Case No. OLT-24-000008 is allowed and the provisional consent is to be given subject to the following conditions:

i. That the Secretary-Treasurer be provided with a registrable legal description of the subject parcel, together with a copy and digital copy of the Deposited Reference Plan, if applicable, for use in the issuance of the Certificate of Consent.

ii. Confirmation of payment of outstanding taxes to the satisfaction of the City of Welland Finance Division.

iii. The Owner(s) provides to the City of Welland $678 (Plus HST) for one tree planting.

iv. That all Conditions of Consent be fulfilled within two years of giving Notice of the Decision.

“Kurtis Smith”

Kurtis Smith

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.