Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 30, 2024

CASE NO(S).: OLT-24-000070

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Southside Construction Management Limited (Michael Frijia)

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit overall lot coverage from 35% to 40% for future dwellings.

Reference Number: R-15/23

Property Address: 101-163 Sutherland Drive

Municipality/UT: St. Clair/Lambton

OLT Case No.: OLT-24-000070

OLT Lead Case No.: OLT-24-000070

OLT Case Name: Southside Construction Management Limited v. St. Clair (Township)

Heard: May 15, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Southside Construction Management Limited (“Appellant”)	Analee Baroudi
Township of St. Clair (“Township”)	Carlie McClemens*

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON MAY 15, 2024 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns an application filed by Southside Construction Management Limited seeking a site-specific Zoning By-law Amendment (“ZBA”) to increase the overall lot coverage within an approved Draft Plan of Subdivision (“DPS”) from 35% to 40% for the property municipally known as 101-163 Sutherland Drive (“Subject Lands”)

2A DPS for the Subject Lands was approved and the zoning changed to allow for the residential development in September 2021. The Council for the Township did not support an initial ZBA request to accommodate secondary dwellings as detached, accessory structures in rear yards for the proposed development. A Holding provision was removed in October 2022 once it was determined that there was sufficient sewage capacity to support the development. Final approval of the DPS was issued in May 2023.

3Township Council (“Council”) received a Staff Report in December 2023 supporting the increased lot coverage amendment request. The Staff Report indicated that the goal for the change is to provide adequate space to allow for different combinations of house and accessory building sizes. It also explained that this application varied from the previous application as it supports varied design options for the principal residence whereas the first application requested increased lot coverage to support detached secondary dwellings.

4The Council did not find the second ZBA request to be “desirable for the proper development of the subdivision” and refused the application.

AFFIDAVIT OF SERVICE AND STATUS REQUEST

5The Affidavit of Service was sworn on March 4, 2024, by Brigitte Hesham Baroudi, which confirms that notice was served. The Affidavit of Service was marked as Exhibit 1, and no further notice is required.

6Participant status was granted to Les and Julia Henderson, who reside near the Subject Lands. They expressed concerns with the proposed amendment in relation to its impact on dwelling design compatibility and fire prevention. The Appellant supported the Participant status request and indicated the expert witness would speak to their concerns.

LEGISLATIVE CONTEXT

7The issues that the Tribunal must address when adjudicating this ZBA appeal are whether the proposed instrument:

a) Is consistent with the Provincial Policy Statement, 2020 (“PPS”);

b) Conforms with the County and Township Official Plans; and

c) Represents good planning.

8The Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Planning Act (“Act”) and for the decision of the Municipality.

EVIDENCE AND FINDINGS

9Carlie McClemens, Deputy Clerk of the Township, attended the hearing and did not take a position on this matter. She indicated that she would support the Tribunal during the hearing if required. Ian MacDougall, Senior Planner for the Township, was subpoenaed to attend by the Appellant but was not called as a witness.

10Dave Hannam, a Registered Professional Planner, and member of the Canadian Institute of Planners, was qualified by the Tribunal to provide land use planning opinion evidence. Mr. Hannam delivered a comprehensive contextual and planning rationale supporting the ZBA.

11As evidence in the Hearing, three documents were marked as Exhibits:

1. Exhibit 1: Affidavit of Service;
2. Exhibit 2: Affidavit of Dave Hannam; and
3. Exhibit 3: Document Book

12Mr. Hannam provided a detailed review of the planning process related to the development of the Subject Lands and the proposed housing design concepts. In addition, he provided a complete analysis of the planning merits of the proposed increase in lot coverage requested through the ZBA which is summarized below.

13Regarding the ZBA’s consistency with the PPS and regard for s.2 of the Act, he opined that the requested change supports the development pattern in the general vicinity and makes efficient use of land and existing servicing. The approved DPS is located within the existing Settlement Area of Courtright which is already identified for growth and development.

14The Subject Lands are within an ‘Urban Settlement Area’ as designated by the County Official Plan (“COP”), and Mr. Hannam proffered that the low-density development supports the goals in the COP and the Township Official Plan, which permits single-detached dwellings such as those proposed.

15Specifically, Mr. Hannam opined that each lot will utilize existing Municipal services and that the proposed increase in lot coverage provides a “high degree of design accessibility” that is compatible with the area’s varied designs and lot coverages.

16In response to the concerns raised by the Participants, Mr. Hannam proffered that the proposed lot configuration is similar to the surrounding area which consist of dwellings of various ages, built forms, heights, roof orientations and garage placements. He opined that homes do not have to be the same to be compatible.

17Regarding the fire prevention concerns raised, Mr. Hannam opined that since the proposed development will comply with all required setbacks and the Ontario Building Code, the proposed increase in lot coverage does not represent any added fire risk for the area.

18The Tribunal, having heard and reviewed the uncontested planning evidence of Mr. Hannam and reviewed the report of Planning Staff, which is also in support of the ZBA, is satisfied that the ZBA is consistent with the PPS, conforms to applicable Official Plans and represents good planning.

19The Tribunal accepts Mr. Hannam’s analysis related to compatibility and fire prevention. Based on the visual evidence provided in combination with Mr. Hannam’s written affidavit the Tribunal finds that the proposed development is compatible with the character of housing in the area, which is varied in its design, lot coverage, and built form.

20The Tribunal also finds that the increased lot coverage does not change the required setbacks and, therefore, there is no increased fire risk and concurs that compliance with the Ontario Building Code provides additional assurance.

ORDER

21THE TRIBUNAL ORDERS THAT the Appeal is allowed and By-law No. 17-2023 is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the Municipal Clerk of the Township of St. Clair to assign a number to this By-law for record-keeping purposes.

“Gregory J. Ingram”

GREGORY J. INGRAM 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.

ATTACHMENT 1

ZONING BY-LAW 67 OF 2023

Being a By-law to amend the Comprehensive Zoning By-law to address land use matters under Sections 34 and 36 of the Planning Act

WHEREAS the Council of the Corporation of the Township of St. Clair, passed a comprehensive Zoning By-law No. 17 of 2003 on the 21st day of April 2003;

WHEREAS the Council may amend the Comprehensive Zoning-By-law No. 17 of 2003 Pursuant to Section 34 of the Planning Act, S.O. 1996, C.4;

NOW THEREFORE the Council of the Corporation of the Township of St. Clair enacts as follows:

1. Schedule “A-4-8” attached hereto is hereby declared to form part of this by-law

2. By-law 17 of 2003 is hereby amended by affecting the lands described as Lots 1 – 61 inclusive, 25M 100; ST. CLAIR, County of Lambton.

3. Schedule “A-4” to By-law 17 of 2003 is hereby amended by changing the zone symbols which apply to the lands subject to this by-law amendment from R1 to R1-11 as shown on Schedule “A-4-8”.

4. Section 6 is hereby amended by adding the following:

6.1.18 Exception 11 to the Residential-1 (low density) Zone

6.1.18(b) Lot Coverage - All Buildings

Notwithstanding the lot coverage provisions of Table A, for those land zoned R1-11, the maximum lot coverage shall be 40 % while all other provisions of the R1 Zone and all other provisions of the Comprehensive Zoning By-law of the Township of St. Clair shall apply respectively.

5. This by-law shall come into force and take effect upon issuance of this decision by the Ontario Land Tribunal.