Badour v. Windsor (City), 2024 CanLII 89460

du territoire

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

ISSUE DATE: September 11, 2024

CASE NO(S).: OLT-23-000965

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

Applicant / Appellant: Fouad Badour

Subject: Consent

Description: Consent for the conveyance of the subject land to create a new lot (Lot B)

Reference Number: B-033/23

Property Address: 991 Morand Street (Lots 31 and 32, RP 1579)

Municipality/UT: City of Windsor

OLT Case No.: OLT-23-000965

OLT Lead Case No.: OLT-23-000965

OLT Case Name: Badour v. Windsor (City)

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

Applicant / Appellant: Fouad Badour

Subject: Consent

Description: Consent for the conveyance of the subject land to create a new lot (Lot C)

Reference Number: B-034/23

Property Address: 991 Morand Street (Lots 31 and 32, RP 1579)

Municipality/UT: City of Windsor

OLT Case No.: OLT-23-000966

OLT Lead Case No.: OLT-23-000965

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

Applicant / Appellant: Fouad Badour

Subject: Minor Variance

Description: Relief from the provisions of the By-law 8600

Reference Number: A-048/23

Property Address: 991 Morand Street (Lots 31 and 32, RP 1579)

Municipality/UT: City of Windsor

OLT Case No.: OLT-23-000967

OLT Lead Case No.: OLT-23-000965

Heard: June 27, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Fouad Badour

R. Jabbour*

City of Windsor

A Farough

David and Annemarie Toldo, Carolyn Ozimek, Mary Paniccia, Doris Roback, Claudio Silvaggi, Barry Heeny, and Anna Bodnar ("Residents")

J.Nanson

DECISION DELIVERED BY D. CHIPMAN ON JUNE 27, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Fouad Badour ("Applicant") owns the property known municipally as 991 Morand St. ("Subject Property"). An application for Consent for the conveyance of two parcels for the purpose of creating two new residential lots was made to the City of Windsor ("City"). In order to facilitate the construction of two single unit dwellings on the proposed conveyances, the Applicant also required, and made an application for, Minor Variances ("MV's") to recognize reduced minimum side yard width for the retained parcel ("Lot A"), reduced minimum side yard widths (east and west side) for the conveyance identified as ("Lot B"), and a reduced minimum lot width and side yard width for the conveyance identified as ("Lot C").

2Notwithstanding the Planning Staff Report in support of the consent and applications (collectively, the "Applications"), the Committee of Adjustments ("COA") refused the Applications, and that decision is now the subject of the Appeals before the Tribunal, brought pursuant to s. 53(19) and 45(12) of the Planning Act ("Act").

3Ms. Jabbour stated her client was relying on the City's Planning Staff Reports and its recommendations to the COA that the Applications be approved, subject to the conditions set out by the City.

4Counsel for the Residents who had been conferred Party status, confirmed they intend to lead viva voce evidence on the consent and variances from the point of view of those living nearby.

5Written statements received from the Residents raised a variety of concerns including, but not limited to; loss of mature trees; size of proposed lots in comparison to existing neighbouring lots and concerns that approval of the proposed consent and MV's would adversely affect the character of the neighbourhood and, in general, set a negative precedent for future development in the area.

6The non-expert resident witnesses appearing against the proposal were

1. AnneMarie Toldo;
2. Claudio Silvaggi;
3. Anna Bodnar;
4. Barry Heeney; and
5. Steve Bodnar.

7Mr. Farough, counsel for the City, informed the Tribunal that the City would not be calling any witnesses. Counsel stated that should the Tribunal grant the Consent and the relief requested, that the conditions set out in the Staff reports be considered.

8The Tribunal received and recorded all exhibits to the hearing, which were identified and assigned an exhibit number during the hearing.

SITE CONTEXT AND EFFECT OF PROPOSAL

9The Subject Property is located at the corner of Morand Street and Barton Street with a lot width of 47 metres ("m") and a total lot area of 3,114 square metres. The lands are described as Lots 31 and 32, corner on Registered Plan 1579 in the neighbourhood known locally as the Roseland Planning District which is an established area with large and deep lots and mature vegetation. The Subject Property is presently occupied by a single unit dwelling, with an accessory pool structure, and garage.

10Dividing the Subject Property as proposed, would result in certain Zoning By-law deficiencies. As such, the Applicant also seeks the following relief from the provisions of Zoning By-law No. 8600 ("ZBL"):

• Side Yard setback for Lot A between the existing dwelling and the proposed easterly side lot line is changed from 1.8 m to 1.2 m,
• Lot width for Lot B is reduced from 18 m to 17.7 m and,
• Lot width for Lot C is reduced from 18 m to 17.35 m. This change results in the need for an additional variance to accommodate a reduction of 0.3 m in the minimum lot width for Lot B.

LEGISLATIVE FRAMEWORK

Consent Appeals - s. 53(19) of the Act,

11In the determination of the Appeal regarding the Consent and in deciding whether the proposed provisional consent should be granted, with such conditions that may be required, the Tribunal must consider and decide the following issues:

a) Be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the City and can proceed by way of application for consent;

b) If the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans (in this instance, the Essex County Official Plan and the City of Windsor ("OP"); the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services;

c) As with any planning Decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement, 2020 (the "PPS"). The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the information and material that was before it when making that decision;

d) Pursuant to s. 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent; and

e) Finally, in general, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning, and in the public interest.

12Section 45(1) of the Act provides that the Tribunal must be satisfied the requested minor variances:

1. maintain the general intent and purpose of the OP;
2. maintain the general intent and purpose of the City's ZBL;
3. are minor in nature; and
4. are desirable for the appropriate development or use of the land, building or structure

13Additionally, the Tribunal must be satisfied that the variances are consistent with the PPS; have regard to matters of Provincial interest and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making that decision.

14For consents, the Act provides that consents may only be given where a plan of subdivision is not necessary for the proper and orderly development of the Municipality. Ms. Jabbour stated that City Staff indicated a plan of subdivision was not required in this circumstance, and the Tribunal agrees.

THE HEARING

Consent

15Ms. Jabbour introduced herself as the Applicant's representative. She stated that she would identify to the Tribunal the applicable planning documents and sections which support the Applicant's position and would leave it to the Tribunal to decide whether the applications meet the applicable tests for consent and relief sought.

16Ms. Jabbour introduced the Tribunal to the following Staff Reports, B-034-23 Consent – Lot C, B-033-23 Consent – Lot B and A-048-23 Relief from the provisions of By-law No. 8600 which she requested that the Tribunal rely on.

17Staff in their reports, identified that the Subject Property is underutilized and is suitable for intensification. It is located within a settlement area and is capable of accommodating the two proposed lots through the consent for the purpose of new dwelling units, provided the requested relief sought through the minor variances is granted.

18The determination of whether the proposed severance should be granted demands an analysis as to whether or not the creation of the two lots, with the noted variances, results in a lot pattern and design that, in applying the content of the OP in its simplest application, "fits" within the neighborhood.

19In this case, an admittedly overly simplified description of the approach to be used would be to determine whether or not, in assessing the two reduced-sized lots, one would consider the Development to fit within, and respect and reinforce, the prevailing character, existing streetscape, and lot and building spatial patterns in the immediate and larger neighborhood. In support of this consideration, the Tribunal heard that there are other existing properties within the block that present with similar lot widths. Those comparisons are on Nova Drive.

20The Residents viva voce evidence focused on the issue of the existing pattern of the lot size and lot configuration which constitutes the physical character of the subject neighbourhood and called into play the process of numerical comparisons of lot frontages. The Tribunal was furnished with a list of comparison lot sizes and photographs relating to lot configuration submitted by the Residents.

21Mr. Nanson stated that the division of the Subject Property into two smaller sized lots was objectionable for this neighbourhood because the reduced lots would be too small and risked weakening the established character of the neighbourhood. He argued that while the material before the Tribunal did not demonstrate that this proposal alone would destabilize the neighbourhood, if consent for this proposal were given, it might well contribute to a shift in the character of the neighbourhood.

22The Tribunal notes that in this case, the Subject Property has a rather wide lot frontage and thus does allow for the division of the lot into a size that is compatible with other smaller lots in the neighbourhood and which respects and reinforces the varied lot fabric without an objectionable compression of built forms with inconsistently narrowed open space or an overly massed streetscape.

23The Tribunal finds that the Provincial and Municipal planning framework supports the proposition that through the existence of some smaller frontage lots and the scattered numerical deviations in frontage, change and regeneration can occur in this neighbourhood in a sensitive and gradual manner.

24The Staff Report supports the creation of the smaller lots with frontages similar to that proposed by the Applicant, and as well, the rather unique nature of the Applicant's property as being capable of sustaining a division while meeting the tests and criteria provided for in the Act. As a result, the proposal represents an efficient use of land and resources and is consistent with s.51(24) of the Act.

Minor Variances

City of Windsor OP

25The Subject Property is designated Residential in the OP.

26Ms. Jabbour identified that the OP directs growth and intensification to certain areas. She turned the Tribunal's attention to the applicable sections of the OP that speak to consents and lot creation in s. 11.4.3.

27She stated that s. 11.4.3.2 (a) Creation of lots for minor infilling the consents are for two lots with one retained on the property.

28Both lots would front onto public roadways which is aligned with s.11.4.3.4. which states that Consents shall only be granted for lots which have access to a public highway which is paved with a hard surface and is of a reasonable standard of construction.

29She drew the Tribunal's attention to the City's adopted residential intensification target of 10 percent for the 20-year period of 2006-2026 which states all new residential development should be located within built-up areas of the City that have access to existing services such as roads.

30Mr. Nanson stated the consent does not respect and reinforce the prevailing pattern of development in the area under s. 11.4.3.6(c) of the OP which speaks to the continuation of an orderly development pattern. He described the defining characteristic of the neighbourhood as its large lots with single, detached one and two-storey dwellings and as an area of exclusively detached dwellings.

31Regarding the suitability of the land for the proposed use and dimensions and shape of the two severed and retained parcel, the Tribunal heard that the existing neighbourhood character and lot sizes are not supportive of the consent.

32The Tribunal heard statements from the Residents that the neighbourhood of Roseland Planning District has seen development/redevelopment that has largely been limited to renovations and/or additions to the single detached dwellings. Based on the perspectives of the residents of Roseland Planning District, Counsel submitted that the proposed lots are not capable of existing in harmony, but are simply too dense and ultimately, too different to be considered compatible or be representative of good planning.

SEWER AND WATER SERVICES:

33It was noted that all lots created by consent shall be serviced by municipal sanitary sewer and water services.

34Counsel for the City informed the Tribunal that the Applicant is requesting that a "H" Holding symbol be placed on Lot C until such a time as the appropriate municipal services can be established.

35The City informed the Tribunal that it is not in the City's normal course of response to a consent application to place an "H" (Holding) symbol on a conveyance, as typically "H" Holding symbols are used for ZBL purposes.

36Mr. Farough stated that s. 11.6.5 of the OP describes the use of Holding Zones ("H" symbol) to hold or delay the development of the land for an interim period due to the lack of municipal services. The City stated that there is no way around needing or putting off the necessity to have municipal services in place in response to a consent application.

37Mr. Farough noted the recommended Conditions of Consent Approval appropriately address the concerns raised by commenting departments most particularly referencing providing sanitary, storm and water services fronting the newly created lot, to the satisfaction of the City Engineer. He recommended the Conditions be imposed as they are both appropriate and reasonable.

38In response to concerns raised by the Residents with respect to the removal of large mature trees to accommodate the proposed development, the Staff Report notes that Lot B will be subject to a Tree Inventory and Preservation Plan as part of the Conditions as well.

Zoning By-law No. 8600

39The Subject Property is zoned Residential District 1.4 (RD1.4) by ZBL No. 8600 permitting residential uses such as single unit dwellings.

40The Staff report concluded that the proposed consent would comply with zoning provisions for single unit dwellings under zoning district RD 1.4 as long as the side yard and lot width variances are granted.

Minor are nature and are desirable for the appropriate development or use of the land, building or structure.

The Tribunal finds the requested variances will not result in undue hardship on the Owner, adjoining neighbourhood properties or the public realm; therefore, the variances are minor in nature. The development proposal optimizes a large corner lot in a manor that will provide additional infill housing.

SUMMARY OF CONCLUSIONS AND FINDINGS

41The Tribunal accepts the planning opinions from the Staff reports as they contained the only planning references by which the Tribunal could consider.

42Some degree of change within this neighbourhood is inevitable and expected, given provincial policies addressing growth and the need for increased housing of different types and tenures. The consent before the Tribunal optimizes the use of a large corner property which will accommodate development.

43Accordingly, upon the evidence presented, and for all the reasons given, the Tribunal finds as follows:

a. Consent to Severance - The Tribunal finds that the provisional consent to the severance is appropriate, particularly in light of the size of the Subject Property and its ability to allow for the type of Development that is proposed. The Tribunal is not of the view that the approval of the severance or the variances will adversely affect any property or the broader neighbourhood and will not destabilize the neighbourhood as suggested. Neither will the approval represent any type of benchmark or precedent giving rise to further subdivision of land and concerns about further alteration of the character, stability or fabric of this neighbourhood. The proposed severance represents gradual and orderly development of the Subject Property, conforms to the OP, and is consistent with the PPS. The Tribunal finds, with the conditions indicated, the proposed development will meet all the requirements and criteria of the Act, including those set out in s. 51(24) and will represent good planning.

b. Variances - The Tribunal also finds that the variances and the proposed Development meets the four tests as set out in s. 45(1) of the Act and satisfies the provisions of the PPS. The proposed variances are minor and are desirable for the appropriate development or use of the lands. The resultant dwellings will fit within, and respect, the prevailing character, existing streetscape, lot and building patterns in the larger neighborhood. The Tribunal finds that the variances also maintain the general intent and purpose of the ZBL and the OP. Given the evidence before it, the Tribunal finds that there is nothing of exceptional note to indicate that the proposed variances are not consistent with the PPS in promoting appropriate and modest compact intensification in proximity to municipal services and that the Conditions will serve to ensure the Applicant will adhere to all standards set by the City.

44With respect to the MV's , in the circumstances and facts of the Appeal, since the Applications for the variances relate to proposed new construction and development of two severed lots on the Subject Property, each of the MV's are collectively required to allow for the future development of dwellings. The Tribunal has reviewed and considered the evidence as a whole in determining whether the variances should be collectively approved for each lot since much of the planning documentation applies uniformly to all the variances. The Tribunal has also reviewed each of the individual variances, and has thus considered, and made findings with respect to, the individual variances in this Decision.

45In the matter of conditions to the severance and variances, the Tribunal reviewed the form of proposed conditions set out in Exhibit 7 at the Hearing (the "Conditions") and is of the opinion that these Conditions provide for the orderly implementation of the consent and variances and recommends that they be imposed to ensure orderly implementation of the approvals and maintain good planning practices. Those Conditions as submitted below as follows:

I. The Applicant/Owner shall obtain a right-of-way work permit for any work within the right-of-way, to the satisfaction of the City Engineer.

II. The Applicant/Owner shall provide Site Servicing drawings for the overall property outlining all existing services, to the satisfaction of the City Engineer.

III. The Applicant/Owner shall provide sanitary, storm and water services fronting retained lot and newly created lot, to the satisfaction of the City Engineer.

IV. As Lot C does not have any municipal sewers fronting the Subject Property, the owner is required to extend the Sanitary and storm sewer from Morand street on Barton Street to service the proposed Lot C, to the satisfaction of the City Engineer.

V. The Applicant shall abandon any existing redundant services as per municipal standards BP 1.3.3, to the satisfaction of the City Engineer.

VI. The Applicant/Owner shall provide a Tree Inventory and Preservation Plan prepared by a Certified Arborist (ISA) or Landscape Architect (OALA), to the satisfaction of the City Planner and City Forester.

VII. The Applicant shall consult with the City Forester to assess any compensation that may be deemed necessary for loss of the urban forest canopy, to the satisfaction of the City Forester.

46The Tribunal has reviewed these Conditions and accepts the recommendations and agrees that under the Act, and for the purposes of implementing the provisional consent and the variances, these Conditions represent good planning, are reasonable and should be implemented.

ORDERS

47THE TRIBUNAL ORDERS that the Appeal with respect to the Application for the proposed severance is allowed and the provisional consent is to be given subject to the "Consent Conditions" set out above in paragraph [45] of this Decision.

48THE TRIBUNAL ORDERS that the appeals with respect to the Applications for the Minor Variances in relation to both the proposed Lot B and Lot C subdivided lots are allowed.

"D. Chipman"

D. CHIPMAN

MEMBER

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.