Sovereign Mapleview & Huronia Limited v. Barrie (City), 2024 CanLII 33128

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 12, 2024

CASE NO(S).: OLT-23-000952

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

Applicant and Appellant: Sovereign Mapleview & Huronia Limited

Subject: Minor Variance

Description: To facilitate a 7-unit multiple dwelling building

Reference Number: A41/23

Property Address: 118 Peel Street

Municipality/UT: Barrie/Barrie

OLT Case No.: OLT-23-000952

OLT Lead Case No.: OLT-23-000952

OLT Case Name: Sovereign Mapleview & Huronia Limited v. Barrie (City)

Heard: February 21, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Sovereign Mapleview & Huronia Limited

J. Shapira

City of Barrie

B. Engell

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON FEBRUARY 21, 2024 AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The matter before the Tribunal is a de novo Merit Hearing based on an Appeal relating to a Minor Variance Application (“MVA”) pursuant to s. 45(12) of the Planning Act (“Act”) resulting from the denial of the MVA at the Committee of Adjustment (“COA”), in the City of Barrie (“City”). The Appeal has been filed by Sovereign Mapleview & Huronia Limited (“Appellant” / ”Applicant”) regarding the property located at 118 Peel Street (“Subject Property”).

2The Applicant is proposing to retain an existing dwelling and construct a two-storey addition at the south and west sides of the existing dwelling (“Proposal”). Seven (7) units are proposed, including two (2) basement units. Parking for the proposed development will be accommodated within the rear yard. Parking access will be provided through the existing driveway at the north end of the site. An amenity area and waste management area will be provided at the rear of the site. Access to the proposed units will be provided via the front and rear yard. The existing street-facing façade will be retained and expanded to ensure consistency with the existing neighbourhood character.

3The Proposal contains: four (4), two (2)-bedroom units and three (3), one (1)-bedroom units, and will include nine (9) parking spaces, including one (1) accessible parking space.

4A Revised Notice of this Hearing was issued by the Tribunal on November 17, 2023, with a correction to the Titles of Proceedings, and is marked as Exhibit 1.

5The following were also marked as Exhibits for the Hearing:

• Exhibit 2 - Witness Statement from Mark Condello
• Exhibit 3 - Applicant’s Photo Evidence Book
• Exhibit 4 - Witness Statement of David Lee
• Exhibit 5 – Google street view image of 106 Peel Street

THE VARIANCES

6The Variances that are the subject of the Appeal are as follows:

a) To recognize an existing lot frontage of 20.44 metres, whereas the Comprehensive Zoning By-law No. 2009-141, under s. 5.3.1, Table 5.3, requires a minimum lot frontage of 21 metres;

b) An internal private roadway width of 3.0 metres, whereas the Comprehensive Zoning By-law No. 2009-141, under s. 5.2.5.2(e), requires a minimum internal private roadway width of 6.4 metres;

c) To permit a reduced parking ratio of 1.2 spaces per dwelling unit, whereas the Comprehensive Zoning By-law No. 2009-141, under s. 4.6.1, Table 4.6, requires a minimum of 1.5 spaces per dwelling unit;

d) A landscape buffer width of 0 metres on the north side of the lot, whereas the Comprehensive Zoning By-law No. 2009-141, under s. 5.3.7.1, requires a minimum width of 3 metres;

e) A landscape buffer width of 2.0 metres on the south side of the lot, whereas the Comprehensive Zoning By-law No. 2009-141, under s. 5.3.7.1, requires a minimum width of 3 metres.

7A COA hearing of August 22, 2023, denied the MVA despite a Planning Staff Report (“PSR”) dated August 16, 2023, recommending support of the Variances with the following conditions:

1. That a demolition permit be issued for the existing detached garage and that it be removed prior to any further development of the lands;

2. That all accessory structures including the sheds and swimming pool be removed;

3. That the approval of the subject variances be granted as reflected on the site plan attached as Appendix “B” to the planning staff report and any further development or redevelopment of the site shall be required to comply with the standards of the City of Barrie Zoning by-law No. 2009-141, as amended, or any successor thereto, failing which subsequent approvals may be required; and,

4. That the applicant shall be required to install appropriate signage to notify motorists that the internal private roadway cannot accommodate two-way travel and to yield right-of-way.

LEGISLATIVE FRAMEWORK

8This Hearing matter is heard de novo, pursuant to s. 45(1) of the Act, which establishes the ”four tests’’. In other words, to authorize all five of the Variances, the Tribunal, in an Appeal, must be satisfied that each of the variances:

A. Maintain the general intent and purpose of the Official Plan;

B. Maintain the general intent and purpose of the Zoning By-law;

C. Are desirable for the appropriate development or use of the land, building or structure; and,

D. Are minor in nature.

9In addition, s. 3(5) of the Act requires the Tribunal's Decision to be consistent with policy statements and Provincial plans, including the Provincial Policy Statement, 2020 (“PPS”), and conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); the City Official Plan, 2023 (“OP”); and to the City Zoning By-law (“ZBL”).

10The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as the decision of the COA and the information considered in the course of making its Decision, as set out in s. 2.1(1) of the Act.

HEARING STATUS REQUESTS

11The Tribunal was in receipt of one written Request for Participant Status from Mike Maynard, a resident/neighbour to the north of the Subject Property. Mr. Maynard attached a detailed letter outlining his issues of concern which include but are not limited to the following:

1. A previously approved six (6) unit townhome development on this site by the COA on February 23, 2022;

2. Noise and building reverberations;

3. Snow removal concerns;

4. Lighting, fencing and privacy concerns;

5. Garbage removal, odours from vehicle exhausts, and other tenancy nuisances; and,

6. Sightlines, and the absence of a landscaped buffer.

12There were no objections to the request, and the Tribunal conferred Participant Status to Mr. Maynard at the commencement of the Hearing.

HEARING EVIDENCE AND SUBMISSIONS

13The Tribunal qualified two witnesses for the purposes of the Hearing, following a careful review of their respective Affidavits and Acknowledgements of Experts’ Duty as follows:

• Mark Condello, appeared as a Registered Professional Planner, practising as an associate with Glen Schnarr & Associates Inc. and holds a degree in Environmental Studies (Urban and Regional Planning). Mr. Condello has had primary carriage of this matter since March/April 2021, and was qualified by the Tribunal to provide opinion evidence in the areas of land-use planning on behalf of the Applicant; and,

• David Lee, appeared as a Professional Engineer with a long history in Transportation Planning as an associate with Candevcon Group Inc., and has had carriage of this matter since December 2023. Specific to Variances b) and c) below in paragraph 14. Mr. Lee was qualified by the Tribunal to provide opinion evidence in the area of transportation planning.

14Mr. Condello commenced, with a background outline of the Appeal, and shared the site conditions that exist on the Subject Property (Exhibit 2, paras. 16-22). He also outlined in greater detail the surrounding area and built up sites that were in close proximity to the Subject Property as demonstrated in Exhibit 3, with visual images including 122 Peel Street (Participant’s property), as well as other examples with similar rear yard parking, and built form. Among others, he noted that 78 Peel Street (Photo 37) has a similar application before the COA, with seven residential units and 102 Peel Street (Photo 43) as another multi-unit residential use.

15Regarding the Variances requested, Mr. Condello stated that the Proposal is a conversion of the single-family dwelling and referred to preliminary elevations including front, side and rear yards, noting that variances a), b) and d) were conditions that currently exist on the Subject Property. He also stated that the MVA retains the existing structure and includes an increased density through an addition and renovation facilitating seven residential rental units, which does not represent an overdevelopment of the Subject Property.

TRANSPORTATION WITNESS EVIDENCE

16Mr. Lee provided expert testimony specifically relating to variances b) and c), with a focus on the driveway width and the provision of on-site parking. A brief synopsis of his opinions related to these issues in addition to his more comprehensive witness statement (Exhibit 4) consisted of the following:

1. The ZBL requires a 6.4 m width driveway, whereas he concurred with the PSR, which expressed no concerns with the existing 3.0 m width (to 3.3/4 m width near the rear portion) of the driveway with asphalt surface;

2. He agreed with a condition that the appropriate two-way traffic signage along the internal private roadway, must be installed, indicating that it cannot accommodate two-way travel and vehicles must yield the right-of-way;

3. He confirmed that the turning radiuses for all nine (9) parking spaces were in conformity with passenger vehicles for drop-off and pick-up, including for vans and pick-up trucks, that would also benefit from the bump-out curb design in one section, and the general parking stall dimensions met the requirements of the ZBL;

4. There was no concern about size, functionality, or safety and usability of the parking spaces, confirming that during peak hours, there was also on-street provision for vehicular parking along Peel Street with no present restrictions;

5. The Subject Property is: close to existing public transit, within walking distance; near a variety of community facilities; bounded by arterial and collector roadways; and, close to schools, with commercial uses in the vicinity.

6. Following his detailed parking analysis of the surrounding area, he asserted that the variance request of 1.2 parking spaces from the ZBL requirement of 1.5 spaces, was quite functional, and allows for the sufficient provision of parking and the proposed development; and,

7. Finally, he shared that he had no concerns with emergency vehicle access which could be provided along Peel Street in an acceptable manner, and did not have any pedestrian safety concerns.

LAND USE PLANNING EVIDENCE

[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

17Mr. Condello referenced his witness statement (Exhibit 2, para. 38) and supplemented this, in his testimony noting, that the Subject Property is located within the Grove Historic Neighbourhood and is designated a ‘Neighbourhood Area” under the OP, which is not a listed property on the City’s Heritage Register, or a designated property under Part IV of the Ontario Heritage Act, (pg.153), and that the City did not have any comments/concerns with the Proposal.

18He asserted that the Proposal represents an appropriate location for growth and development, and that it is sustainable, in close proximity to a variety of transit alternatives. Furthermore, he opined that the Proposal reflects appropriate density levels in this community, represents a well-designed built form and maintains existing streetscape characteristics along Peel Street and with the surrounding area.

19Mr. Condello concluded that the Proposal effectively utilizes all existing municipal services, and offers a range of housing alternatives as noted above (para. 3) and, in all other respects, has appropriate regard for all requirements of the s. 2 of the Act.

Provincial Policy Statement

20Mr. Condello again referenced his witness statement (Exhibit 2, paras. 39-41) in testimony emphasizing that the Proposal is consistent with the PPS encouraging healthy, livable and safe communities, promoting good land use planning, growth management, and minimizing land consumption in a cost effective manner. He further stated that settlement areas are important areas for growth and increased densities such as this.

21Mr. Condello referred to PPS sections 1.1.1, 1.1.3.1-3, 1.1.3.3, 1.4.1 and, in particular, 1.4.3 as the foundation of his opinion that the Proposal maintains consistency with the broad policy directions of the PPS.

Growth Plan

22Mr. Condello further referenced his witness statement (Exhibit 2, paras. 42-44), and testified that the Proposal conforms with the GP, emphasizing that it is within the City’s Urban Boundary and Built-Up Area, prioritizes the utilization of existing infrastructure, supports the achievement of complete communities and prioritizes intensification with a range of housing options and specifically highlighted sections 1.2.1, 2.2.1, 2.2.2.3, and 2.2.6.1 a).

THE FOUR TESTS

A. Maintain the General Intent and Purpose of the City Official Plan (“OP”)

23Mr. Condello briefly opined that the Proposal is not impacted by recently approved Bill 150, that the infill expansion of the existing building provides a range of housing, and that it is consistent with built form in the surrounding area that consists of both new and existing densities. He referenced his visual images in Exhibit 3, and demonstrated that the Proposal is similar in nature to a number of examples of other nearby properties, where similar or greater densities currently exist. Some of these examples as previously noted, have parking on site in rear yards, and others, such as some townhome examples, use front yards for parking.

24Mr. Condello concluded that there were no Secondary Plans applicable in this matter, and that the Proposal maintained the general intent and purpose of the OP.

25The Tribunal notes that the PSR outlines its opinion that the Variances requested reflect the following:

• The subject application maintains the general intent and purpose of the Official Plan as the applicant is seeking variances to facilitate the development of a multi-residential infill development on a local road (Peel Street) which is serviced by adequate infrastructure, transit and transportation facilities, as well as community services and facilities, and commercial uses located to the south and west. In staff’s opinion, the proposed development is also compatible with and will integrate into the surrounding neighbourhood. Finally, the proposed development is appropriate for the area in that it will support the use of transit, generate pedestrian activity, and will assist the City in reaching its density and intensification targets.

B. Maintain the General Intent and Purpose of the City Zoning By-law (“ZBL”)

26The Subject Property is zoned ‘Residential Multiple Dwelling Second Density’ (RM2) in ZBL 2009-141. The in-effect zoning permits the following built forms: Block/Cluster/Street/Stacked Townhouse; Semi-Detached, Duplex Dwelling; Single Detached Dwelling; Three or More Unit Dwelling; and Walk-up Apartment. (Exhibit 2, para. 58).

27Mr. Condello clarified that the parking provided in the rear of the Subject Property meets the ZBL requirement related to the dimensions of a parking space and drive aisle between two parking spaces.

28The Tribunal notes that the PSR concludes as follows regarding the ZBL:

• The applicant is seeking exemption from the minimum requirements of the Zoning By-law to recognize the existing deficient lot frontage of 20.4 metres, whereas 21 metres is required. In this regard, the property is an existing lot of record and the lot frontage cannot be increased. The general intent of the minimum lot frontage is to create a consistent lot fabric and streetscape and to ensure that lots have an appropriate building envelope to accommodate the built-form permitted by the Zoning By-law, along with viable driveway access and parking, setbacks and distance between neighbouring structures.

• In staff’s opinion, the requested lot frontage variance is technical in nature and is required to recognize an existing and longstanding condition. Staff are of the opinion that the deficient lot frontage would not impact the function of the site or negatively impact the adjacent properties.

• The general intent of the minimum lot frontage is to create a consistent lot fabric and streetscape and to ensure that lots have an appropriate building envelope to accommodate the built-form permitted by the Zoning By-law, along with viable driveway access and parking, setbacks and distance between neighbouring structures.

• In staff’s opinion, the requested lot frontage variance is technical in nature and is required to recognize an existing and longstanding condition. Staff are of the opinion that the deficient lot frontage would not impact the function of the site or negatively impact the adjacent properties.

29Mr. Condello opined that the proposed built form is permitted in the applicable zoning for the Subject Property and that the MVA conforms with the City’s ZBL.

30Additionally, the PSR (Exhibit 2, Attachment G - pg. 133) denotes the following with regard to the ZBL:

• …staff have no concerns with the proposed density of the site and are satisfied that the proposed built form will not result in an overdevelopment of the lot as all building setbacks and height would be maintained, adequate parking and amenity space would be provided, and the development is considered compatible with the existing residential development in the surrounding area.

31Regarding the parking variance request, Mr. Condello concurred with Mr. Lee’s testimony and referenced the PSR’s analysis below:

• Planning staff anticipate that while some units may require parking, others may not, depending on the needs and preferences of the respective tenants. The proposed parking ratio will allow for a minimum of 1 parking space for each unit (7 units), inclusive of an additional space for visitors and 1 barrier free space, and parking is permitted on-street (with restrictions). As such, in staff’s opinion, the modest reduction in parking is not considered unreasonable and is not expected to impact the functionality of the site or future residents of the proposed development.

• Based on the foregoing, Planning staff are of the opinion that the requested variance maintains the general intent and purpose of the Zoning By-law

32Regarding the existing driveway and the Variance requested, Mr. Condello again concurred with Mr. Lee’s testimony, and concluded that the Variances maintain the General Intent and Purpose of the City’s ZBL. With reference to this, the Tribunal notes the PSR conclusions below:

• Zoning By-law. The deficient areas are existing (driveway along the northerly property limits) or minimal as they do not extend along the entirely of the parking area (adjacent to the proposed parking hammerhead only). Further, in accordance with the Zoning By-law, the applicant would be required to install a 2 metre high privacy fence along the north, west and south property lines to assist in screening the proposed parking area from the adjacent residential properties.

• Based on the foregoing, Planning staff have no concerns with the requested variances. Given the context of the surrounding area and the various design elements incorporated into the development Proposal, Planning staff are satisfied that the requested variances will not result in unreasonable impacts to the neighbouring lots. As such, in staff’s opinion, the general intent and purpose of the Zoning by-law is maintained.

C. Desirable for the Appropriate Development or Use of the Land, Building or Structure

33With similar rationale through his witness statement and testimony, Mr. Condello re-affirmed his opinion that the Proposal is appropriately designed to reflect this test, and that the PSR analysis also supports his opinion as referenced below (Exhibit 2, Attachment G - pg. 136):

• If approved, the requested variances would facilitate residential intensification along a local road within the City’s built boundary and on a site that is located within walking distance (approximately 400 metres) from commercial uses. The development proposal would facilitate the efficient use of land as it would be adequately serviced by municipal infrastructure, transit and transportation infrastructure, and community services and facilities. The application is considered a desirable infill development on an underutilized site, thereby contributing to the City’s intensification and density targets.

• As such, Planning staff are of the opinion that the requested variances are desirable for the use and development of the subject lands.

D. Minor in Nature

34Mr. Condello opined that the Variances are minor and do not pose any adverse impact, noting that the building design is compatible with the surrounding area, there are existing conditions (variances a), b) and d), that are presently acceptable) and that variances c) and e), also do not pose any significant adverse impact.

35The overall Proposal, Mr. Condello asserted, is minor in nature and made reference to the PSR’s conclusion on this test as follows below:

• The requested variances are minor in nature as the overall design of the development has incorporated a variety of features to mitigate potential impacts associated with said variances, which include an adequate separation between the proposed addition and neighbouring buildings; adequate outdoor amenity space and parking; and building heights that do not exceed the maximum provisions in the Zoning By-law. Further, Planning staff are satisfied that the requested variances will not impact the functionality of the site or adjacent properties.

• For these reasons and those noted throughout this staff report, Planning staff are satisfied that the requested variances are minor in nature.

Participant Issues

36In response to the Participant’s written concerns, Mr. Condello asserted that a number of the issues raised were not within the Tribunal’s jurisdiction, and that most, if not all of these concerns were addressed in the PSR and its recommended conditions.

37The Tribunal notes that discussion that an additional condition related to perimeter walkways allowing easier access to residents’ units, would be appropriate in the circumstances.

38Finally, Mr. Condello concluded that the overall Proposal and the MVA relief sought by the Applicant represents good planning and meets the four step test for Variances in the Act, namely, “they are individually and collectively in keeping with the general intent and purpose of the Official Plan and Zoning By-law, are desirable for the appropriate development or use of the land, and are minor. The Minor Variances should therefore be approved with the four conditions requested by City in the Planning Report.”

Bill 150

39The Tribunal is aware that Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”), received Royal Assent on December 6, 2023.

40Because the matter is being considered subsequent to this legislation and that the changes do not affect this Appeal, the Parties concurred that this matter is not affected by this recent decision, and the Tribunal will proceed with the issuance of its Decision.

ANALYSIS AND FINDINGS

41The Tribunal notes that Counsel for the City submissions, agreed that the surrounding area is identified as having a need for redevelopment, which is active with other ongoing applications. A previously approved stacked townhome proposal with six units on the Subject Property had parking at the front of the site, which he submitted was consistent with other sites in the area, however, with this Proposal, parking in the rear yard was the primary issue of concern. No expert evidence in opposition to the requested Variances or other submissions from the City were provided at the Hearing.

42Mr. Lee’s evidence outlined in detail the various elements of the existing driveway and parking configuration in the rear, and the Tribunal considered his uncontroverted opinion in support of the alignment and driveway access, as reasonable in the circumstances.

43Furthermore, based on the uncontroverted expert witness evidence from the Applicant, corroborated by the PSR with very detailed conclusions in support of all five variances, the Tribunal is convinced the Variances individually and collectively: have the appropriate regard for the provisions of s. 2 of the Act and s. 45(1) of the Act; are consistent with the PPS 2020; conform with the Growth Plan; and, maintain the general intent and purpose of the provisions of the City OP and ZBL; are minor in nature, and will cause no negative impacts to the surrounding neighbourhood. The Variances are reasonable, desirable and is in the public interest and represent good planning.

ORDER

44THE TRIBUNAL ORDERS that the Appeal is allowed and the Variances to By-law No. 2009-141 are authorized subject to the following conditions:

a) That a demolition permit be issued for the existing detached garage and that it be removed prior to any further development of the lands;

b) That all accessory structures including the sheds and swimming pool be removed;

c) That the approval of the subject Variances be granted as reflected on the site plan attached as Appendix “B” to the planning staff report and any further development or redevelopment of the site shall be required to comply with the standards of the City of Barrie Zoning By-law No. 2009-141, as amended, or any successor thereto, failing which subsequent approvals may be required;

d) That the Applicant shall be required to install appropriate signage to notify motorists that the internal private roadway cannot accommodate two-way travel and to yield right-of-way; and,

e) That the Applicant shall be required to design perimeter walkways allowing easier access to residents’ units in a manner approved by and in accordance with any permits required by the City of Barrie.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.