Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 09, 2024
CASE NO(S).: OLT-23-001049
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Karen Heron
Subject: Minor Variance
Description: To facilitate the construction of a single detached dwelling supported by an elevator shaft.
Reference Number: A13-23
Property Address: 173 William Street
Municipality/UT: Stratford/Perth
OLT Case No: OLT-23-001049
OLT Lead Case No: OLT-23-001049
OLT Case Name: Heron v. Stratford (City)
Heard: May 30, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Karen Heron | Eric Davis |
| City of Stratford | Paula Lombardi |
MEMORANDUM OF ORAL DECISION DELIVERED BY N. ALLAM AND S. DEBOER ON MAY 30, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal was the Appeal by Karen Heron (“Appellant”) under s. 45(12) of the Planning Act (“Act”) due to a decision by the City of Stratford (“City”) Committee of Adjustment (“COA”) to deny the minor variance application (“Application”) request of an increase in the permitted height for a new detached dwelling from a maximum permitted height of 10.0 metres to a requested permitted height of 11.39 metres. The municipal address of the Subject Property is 173 William Street, in the City of Stratford.
SITE CONTEXT
2The Subject Lands are designated as R2 in the City’s Official Plan and are located centrally in the City. Victoria Lake is adjacent to the south of the Subject Lands and the City’s downtown is located on the south side of Victoria Lake. William Street is generally residential in nature, with most of its dwellings being of single detached, two to two-and-a-half (2 – 2.5) storeys in height.
3Waterloo Street is the main street providing vehicular and pedestrian access to the downtown. A pedestrian walkway is located between the Subject Lands and Victoria Lake.
4The Subject Lands have a frontage of approximately 20.117 metres and a depth of 32.187 metres, with a total lot area of 647.2 square metres.
APPLICATION HISTORY
5The Application before the Tribunal – in its current form – was submitted to the City on June 28, 2023, and was heard at the COA meeting on July 31, 2023.
6The Application was recommended for approval by the City’s Planning staff; however, the COA deferred the Application until the September 25, 2023, COA Meeting. At the September 25, 2023 COA Meeting, the Application was refused. The Applicant then appealed the COA decision to the Tribunal.
THE MINOR VARIANCE HEARING
Status Requests
7At the commencement of the Hearing, the Tribunal received a written request for Party Status from Ms. Kathryn Fleming and Ms. Karen Fleming of 177 William Street. The Flemings are the adjacent neighbours to the Subject Lands. They were not able to attend the Hearing and were represented by Mr. Bill Henderson. Mr. Henderson is not legal counsel (“Counsel”) but a friend of the Flemings, and he stated that he was not offering paid services. Mr. Henderson stated that he had no prior experience with the Tribunal, and the Chair then explained the prerequisites of Party Status in great detail.
8Mr. Henderson emphasized that he had four important items that the Flemings called errors and omissions concerning the submissions to the COA in Council’s reports. These items were not submitted in the Flemings’ original statements. The Tribunal and the Parties agreed to accommodate Mr. Henderson by giving him the opportunity to provide a written statement on these four items. Mr. Henderson’s written statement was circulated to the Tribunal and to the Parties for review prior to any evidence or testimony being given. After receiving these issues in writing, the Tribunal then ruled that the Flemings would be granted Participant status only.
9The Tribunal was also in receipt of two other prior status requests, from Ms. Jennifer Lewington and Ms. Jane Watson, for Participant status. The Tribunal ruled these two requests as valid and granted Participant status to Ms. Lewington and to Ms. Watson.
LEGISLATIVE FRAMEWORK
10An appeal pursuant to s. 45 of the Planning Act is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) of the Act have been met, namely that a requested variance:
(a) maintains the general intent and purpose of the Official Plan (“OP”);
(b) maintains the general intent and purpose of the Zoning By-law (“ZBL”);
(c) is minor in nature; and
(d) is desirable for the appropriate development or use of the land building or structure.
14In addition, s. 3(5) of the Act requires that a Decision of the Tribunal affecting a planning matter – in this case the application for a variance – must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and must conform to the Growth Plan. The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the COA and the information considered by it in the course of making that decision.
Expert Witness
15The Appellant introduced land planning expert Trevor Hawkins, who was qualified to give expert opinion evidence in the area of land use planning.
16The Affidavit of Trevor Hawkins was marked as Exhibit 1 to the hearing event.
17Mr. Hawkins took the Tribunal through the history of the Application, and he acknowledged that he has been involved in the application process since the original application took place and was involved in the revised application that is now before the Tribunal.
Maintains the general intent and purpose of the Official Plan (“COP”)
18Mr. Hawkins explained that the COP currently designates the Subject Lands as Residential Area as well as Parks and Open Spaces. The proposed development replaces a single detached dwelling with a new detached dwelling. The Application before the Tribunal does not introduce any new land uses, nor does it create a new lot requiring land use designations.
19Mr. Hawkins opined that the replacement of a single detached dwelling does not represent a form of intensification and that the current COP designation does not affect the new single detached dwelling. It was his opinion that the new single detached dwelling meets the existing requirements and existing designation of the COP and therefore meets the general intent and purpose of the COP.
Maintains the general intent and purpose of the Zoning By-law (“ZBL”)
20It was the opinion of Mr. Hawkins that the new single detached dwelling as proposed does meet the requirements of Residential Second Density (R2(1)). However, Mr. Hawkins opined that the ZBL does require a new height permitting a maximum of 11.39 metres whereas the ZBL only allows a maximum permitted height of 10.0 metres.
21Mr. Hawkins further opined that the newly requested overall height of 11.39 metres will not result in an overall height that would be inconsistent with the neighbouring dwellings. When taking into account that the average grade of the Subject Lands is 0.21 metres below the average grade of the neighbourhood, then in fact the overall height would be closer to a consistency with the surrounding neighbourhood. It was Mr. Hawkins’ opinion that the requested variance does maintain the general intent and purpose of the ZBL.
Is the requested variance minor in nature?
22Mr. Hawkins gave opinion that the requested variance would have negligible impact on the surrounding properties. The new dwelling would maintain a height of 2.5 storeys, as have similar properties in the area. The requested variance would not result in any privacy issues nor create any undue impacts of overlook onto neighbouring properties. Shadow impact would be negligible on the surrounding properties, and the requested height variance would not impact the rooflines of the neighbourhood.
Is the requested variance desirable for the appropriate development or use of the land building or structure?
23Mr. Hawkins stated that the purpose of the requested variance is to add an elevator shaft for the new single detached dwelling. The requested height would allow the elevator shaft to be hidden within the roofline and is a preferred design option. Mr. Hawkins opined that hiding the elevator shaft within the roofline allows the dwelling to fit into the existing rooflines more seamlessly and would allow a built form that is compatible with the neighbourhood.
Overall Opinion
24It was Mr. Hawkins’ overall opinion that the Application before the Tribunal meets the fours tests and that he concurs with the reasons provided by the City Planning staff which had recommended approval of the Application. It was his opinion that the City staff’s conditions should be attached as conditions pursuant to the approval of the Application should the Tribunal find it meets the tests of a minor variance application.
FINDINGS AND ANALYSIS
25In rendering a Decision, the Tribunal must take into account the evidence that has been presented before it, including any Participant statements. The Tribunal must give regard to the decision of the COA and items presented before the COA, including public comments, both written and orally submitted.
26The Tribunal notes that the City attended the Hearing and was in support of the Application before the Tribunal. The City concurred with the expert opinion evidence provided by Mr. Hawkins that the minor variance Application before the Tribunal meets the four tests of a minor variance.
27Through the analysis of the uncontroverted evidence presented, the Tribunal finds that the Appellant has provided sufficient evidence that proves that the four tests of a minor variance application have been met.
28The Tribunal finds that the Appellant has demonstrated that the Application before it is a matter of Provincial interest as per s.2 of the Planning Act. The Tribunal finds that the minor variance application is consistent with the PPS. The Tribunal finds that the minor variance application meets the general intent and purpose of the COP and the ZBL, is minor in nature and is an appropriate use of the Subject Lands and is considered to be good land use planning.
29The Tribunal notes that Mr. Hawkins had taken into account all of the concerns of the Participants in this matter and Mr. Hawkins has demonstrated to the Tribunal though his oral and Affidavit evidence that these concerns have been dealt with appropriately.
30The Tribunal finds that the minor variance application before it should be approved with the noted conditions that were recommended by City Planning Staff.
ORDER
31THE TRIBUNAL ORDERS THAT the appeal is allowed and the variance to the City of Stratford Comprehensive Zoning By-law is authorized subject to the following conditions:
i. that the proposed building is substantially consistent with the proposed development shown in the Heritage Impact Assessment prepared by MacNaughton Hermsen Britton Clarkson Planning Limited (MHBC) for 173 William Street, dated September 2022, to the satisfaction of the City’s Director of Building and Planning;
ii. that the future building is substantially consistent with the elevations shown in submitted drawings A2.1, A2.2, A2.3 and A2.4, prepared by Chris Fernandes Design Corp., project No. 132.22.1, Heron Residence 173 Stratford, dated 2023.07.17, to the satisfaction of the City’s Director of Building and Planning;
and,
iii. that the full building permit for the single detached dwelling at 173 William Street has been issued by the Building and Planning Department within one year from the date of this Decision.
“Nehad Allam”
NEHAD ALLAM
MEMBER
“Steve deBoer”
STEVE DEBOER
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.