Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 27, 2024
CASE NO(S).: OLT-24-000207
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Maxima Holdings Corp.
Subject: Consent
Description: To permit the severance of a parcel for the purpose of creating 4 new lots, 1 of which will be retained.
Reference Number: B19-23-PC
Property Address: 19 Lakeshore Road West
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-24-000207
OLT Lead Case No.: OLT-24-000207
OLT Case Name: Maxima Holdings Corp. v. Port Colborne (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Maxima Holdings Corp.
Subject: Consent
Description: To permit the severance of a parcel for the purpose of creating 4 new lots, 1 of which will be retained.
Reference Number: B20-23-PC
Property Address: 19 Lakeshore Road West
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-24-000208
OLT Lead Case No.: OLT-24-000207
OLT Case Name: Maxima Holdings Corp. v. Port Colborne (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Maxima Holdings Corp.
Subject: Consent
Description: To permit the severance of a parcel for the purpose of creating 4 new lots, 1 of which will be retained.
Reference Number: B21-23-PC
Property Address: 19 Lakeshore Road West
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-24-000209
OLT Lead Case No.: OLT-24-000207
OLT Case Name: Maxima Holdings Corp. v. Port Colborne (City)
Heard: May 3, 2024 via Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Maxima Holdings Corp. (“Maxima”) | Leo Di Fabio, Dylan Earl |
| City of Port Colborne (“City”) | Did not appear |
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON MAY 3, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This matter involved an appeal by Maxima of a decision reached by the City’s Committee of Adjustment to deny Maxima’s request for consent to sever a parcel located at 19 Lakeshore Road West in the City (“Parcel”) for the purpose of creating four new lots, one of which is to be retained (“Severance”).
2No representative appeared for the City at the hearing of this appeal on May 3, 2024. However, Mr. Christopher Roome, a planner employed by the City who had carriage of the City’s file with respect to Maxima’s application for the Severance, appeared under summons to provide testimony. Maxima was represented by Mr. Leo Di Fabio, its partner/owner, who also provided viva voce evidence. He was accompanied by Mr. Dylan Earl.
3Prior to the hearing, counsel for the City advised the Tribunal by correspondence: “The City does not intend to participate in the appeal. It takes no position on the matter.” The upper tier municipality, the Region of Niagara, also did not appear at the hearing. The only material before the Tribunal at the hearing was the Applicant Statement Package dated May 3, 2024 comprising 151 pages.
ISSUES/ANALYSIS
4Mr. Roome, a registered professional planner employed by the City, was qualified by the Tribunal to provide opinion evidence on land use planning matters. He testified as follows:
(a) He worked together on the file relating to the Severance with Denise Landry, the City’s Chief Planner;
(b) The purpose of this application is to permit the severance of the parcel at 19 Lakeshore Road, for the purpose of creating a new lot. Parts 1 and 2 (See Appendix A) will both have a lot frontage of 15.24 m and a lot area of 418 m2, for future residential uses, where Part 2 is proposed to be severed and Part 1 to be retained;
(c) The parcels surrounding the Subject Properties are zoned First Density Residential (R1) to the north, east, and west. The surrounding uses consist of single detached dwellings to the north, east, and west, with Lake Erie being located to the south;
(d) Regional Staff offers no objection to the proposed application, subject to the inclusion of the condition regarding the acceptance of the Archaeological assessment by the Ministry of Citizenship and Multiculturalism;
(e) Maxima’s application was reviewed with consideration of applicable policies in the Provincial Policy Statement (2020) (“PPS”), A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019) (“Growth Plan”), the Regional Official Plan (“Region OP”), the City of Port Colborne Official Plan (“City OP”), and the City of Port Colborne Comprehensive Zoning By-law 6575/30/18 (“City ZB”);
(f) The PPS provides policy direction on matters of provincial interest related to land use planning and development. The Subject Properties are within a “settlement area” according to the PPS, which are to be the focus of growth and development, and land use patterns shall be based on densities and a mix of land uses that efficiently use land and resources. City planning staff was satisfied that the proposed consent is consistent with the PPS. The application efficiently uses land and resources by providing a buildable lot and promoting growth within the settlement area;
(g) The Growth Plan also directs development to settlement areas. The subject parcel is located within a “Delineated Built-up Area” where intensification is generally encouraged under Growth Plan policies which also support the achievement of complete communities that are designed to support healthy and active living and meet people’s needs for daily living throughout an entire lifetime and support a range and mix of housing options, including additional residential units and affordable units, to serve all sizes, incomes, and ages of households. The City’s planning group was satisfied that the proposed Severance conforms to the Growth Plan;
(h) The Regional OP, identifies the Subject Properties as within the “Urban Area Boundary” and “Built-up Area”. Intensification is generally encouraged throughout the Built-up Area and includes residential uses that make efficient use of existing services and the City’s planning staff is satisfied that the proposed consent application conforms to the Regional OP since the proposed lots add to the intensification of the built-up area and make efficient use of the existing infrastructure and services. The retention of residential uses on the Subject Property aligns with the Region’s encouragement of intensification, through developing residential uses that are efficiently supported by existing infrastructure and servicing;
(i) The Subject Property is designated as Urban Residential in the City’s OP. This designation permits residential uses and the creation of new residential lots and intensification is encouraged. Staff has established that parkland dedication fees are required to be collected before a building permit can be issued, and as such, Staff will include a condition that the applicant signs the City’s Memorandum of Understanding, stating that they are aware of the requirements for the collection of parkland dedication as set out in By-law number 4748/130/05. Proposals for the creation of new lots are assessed by the policies of Section 3.2.4 of the City OP. Staff is satisfied that the proposal meets the relevant criteria. An Ontario Land Surveyor sketch has been submitted and the severed and retained lot will have frontage on a public road;
(j) The Subject lands are zoned First Density Residential (R1) under Zoning By-law 6575/30/18. The proposed severance will leave the following dimensions: Part 1: A lot frontage of 15.24m and a lot area of 418m2; Part 2: A lot frontage of 15.24m and a lot area of 418m2. R1 zoning permits detached dwellings and accessory structures and buildings thereto; and
(k) The minimum frontage required for a detached dwelling is 15m and 500m2 of total lot area. The proposal indicates that the frontage has been met, however the lot area is deficient. The applicant will need to apply for a minor variance to request relief from the lot area. This has been added as a condition of approval. Planning Staff has no concerns with the reduced lot size as 418m is an adequate lot size for a detached dwelling when compared with detached dwelling lot sizes in the R2, R3 and R4 zones that only require 400m2. City planning staff are satisfied that the proposed application will meet the requirements of the Zoning By-law, subject to a minor variance.
5In light of the opinions reached by Mr. Broome and Ms. Landry, they recommended the following:
“Severance application B19-23-PC be granted subject to the following conditions:
That the applicant provides the Secretary-Treasurer with the deeds in triplicate for the conveyance of the subject parcel or a registrable legal description of the subject parcel, together with a paper copy and electronic copy of the deposited reference plan, if applicable, for use in the issuance of the Certificate of Consent.
That a final certification fee of $240 payable to the City of Port Colborne is submitted to the Secretary-Treasurer.
That the applicant receives approval for a minor variance for the deficient lot area of Parts 1 and 2.
That the applicant signs the City of Port Colborne’s standard “Memorandum of Understanding” explaining that development charges and cash-in-lieu of the dedication of land for park purposes, based on an appraisal, at the expense of the applicant, wherein the value of the land is to be determined as of the day before the issuance of a building permit, is required prior to the issuance of a building permit pursuant to Section 42 of the Planning Act. R.S.O 1990, as amended.
That the applicant/owner receive acceptance from the Ministry of Citizenship and Multiculturalism (MCM) for the archaeological assessment report titled Stage 1-2 Archaeological Assessment, prepared by Detritus Consulting Ltd (dated September 5, 2023). If the Ministry requires further archaeological work to be completed prior to acknowledging this report, these report(s) must also be submitted to and acknowledged by the Ministry, to the satisfaction of Niagara Region, prior to clearance of this condition. No demolition, grading or other soil disturbances shall take place on the subject property prior to the issuance of a letter from MCM through Niagara Region, confirming that all archaeological resource concerns have met licensing and resource conservation requirements.
That all conditions of consent (described in points 1 to 5 above, “Conditions”) be completed by January 17th, 2026.”
6However, as noted, the City’s Committee of Adjustment did not follow the approval recommendations of the City’s planning staff and provided no planning or any other discernable rationale under the Planning Act for refusing the Severance. In this Tribunal’s view, this is yet another example of a Committee of Adjustment failing to act on sound, professional planning advice provided to it in the public interest. It is no wonder that the Applicant expressed extreme dissatisfaction about this at the hearing and sought a costs Order as against the City in respect of this appeal.
CONCLUSIONS
7Based on its assessment of the uncontroverted opinion evidence of Mr. Broome and the additional factual evidence of Mr. Di Fabio – which reiterated the basic elements relied upon by Mr. Broome and expressed full agreement to the Conditions – the Tribunal determined that the proposed Severance, subject to the Conditions, is consistent with the PPS, conforms with the Growth Plan and with both the Regional OP and the City OP, and will also comply with the provisions of the City ZB. The Severance is reasonable, respects principles of good planning, is in the public interest and meets the requirements of section 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
8However, the Tribunal does not agree with the position of Maxima that the circumstances here would justify making a costs order against the City because of the decision taken by the Committee of Adjustment. Maxima has not satisfied the requirements set out in Rule 23.9 of the OLT Rules of Practice and Procedure by demonstrating that the conduct or course of conduct of the City “has been unreasonable, frivolous or vexatious or… in bad faith…”. Moreover, the Tribunal is aware of no precedent that establishes that a municipality should be liable for the costs of an OLT proceeding simply because the Tribunal reaches a different conclusion than did a Committee of Adjustment.
ORDER
9THE TRIBUNAL ORDERS THAT:
(a) Provisional consent is granted to permit the severance of the parcel of property municipally known as 19 Lakeshore Road West, City of Port Colborne for the purposes of creating three new residential lots (Parts 2, 3 and 4) with Part 1 to be retained for a future residential use, all as shown in Attachment A to this Order, subject to the conditions set out at paragraph [9] (b) below:
(b) The conditions to the provisional consent described in paragraph 9 above are as follows, and shall be cleared to the satisfaction of the City of Port Colborne:
That the applicant Maxima Holdings Corp. (“Maxima”) provides the Secretary-Treasurer with the deeds in triplicate for the conveyance of the subject parcel or a registrable legal description of the subject parcel, together with a paper copy and electronic copy of the deposited reference plan, if applicable, for use in the issuance of the Certificate of Consent.
That Maxima submit a final certification fee of $240 payable to the City of Port Colborne to the Secretary-Treasurer.
That Maxima separately seek and receive approval for a minor variance in respect of the lot area of Parts 1 and 2.
That Maxima execute the City of Port Colborne’s standard “Memorandum of Understanding” explaining that development charges and cash-in-lieu of the dedication of land for park purposes, based on an appraisal, at the expense of Maxima, wherein the value of the land is to be determined pursuant to Section 42 of the Planning Act. R.S.O 1990 c. P.13 as of the day before the issuance of a building permit, is required prior to the issuance of a building permit.
That Maxima receive acceptance from the Ministry of Citizenship and Multiculturalism (MCM) for the archaeological assessment report titled Stage 1-2 Archaeological Assessment, prepared by Detritus Consulting Ltd (dated September 5, 2023). If the Ministry requires further archaeological work to be completed prior to acknowledging this report, these report(s) must also be submitted to and acknowledged by the Ministry, to the satisfaction of Niagara Region, prior to clearance of this condition. No demolition, grading or other soil disturbances shall take place on the subject property prior to the issuance of a letter from MCM through Niagara Region, confirming that all archaeological resource concerns have met licensing and resource conservation requirements.
That all conditions of consent as described in points 1 to 5 above, be completed by Maxima to the satisfaction of the City of Port Colborne by January 17th, 2026.
10The Tribunal may be contacted in the event that further assistance is required to implement the Orders made in paragraph [9] above.
“William Middleton”
WILLIAM MIDDLETON
VICE CHAIR
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 A