Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 01, 2024 CASE NO(S).: OLT-24-000467

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

Appellant: 246 Locke Street South Inc. Subject: Consent - refused by Approval Authority Description: to facilitate development of site for future detached dwellings by severing one lot into two lots Reference Number: B-007/23 Property Address: 971 Unsworth Avenue Municipality/UT: Burlington/Halton OLT Case No.: OLT-24-000467 OLT Lead Case No.: OLT-24-000467 OLT Case Name: 246 Locke Street South Inc. v Burlington (City)

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

Subject: Minor Variance Description: to permit lots to have a lot width of 15.2 metres Reference Number: A-131/23 Property Address: 971 Unsworth Avenue Municipality/UT: Burlington/Halton OLT Case No.: OLT-24-000468 OLT Lead Case No.: OLT-24-000467

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

Subject: Minor Variance Description: to permit lots to have a lot width of 15.2 metres Reference Number: A-002/24 Property Address: 971 Unsworth Avenue Municipality/UT: Burlington/Halton OLT Case No.: OLT-24-000469 OLT Lead Case No.: OLT-24-000467

Heard: September 4, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
246 Locke Street South Inc.	Patrick Harrington
City of Burlington	Brittany Maione
Gary Filion	Self-represented*

DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal concerns appeals filed pursuant to ss. 45(12) and 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), by 246 Locke Street South Inc. (“Appellant”), regarding the decision of the City of Burlington (“City”) Committee of Adjustment (“CoA”) which denied a consent application and the minor variance applications (“Applications”) for 971 Unsworth Avenue, Burlington (“Site”).

2The Site is located on the east side of Unsworth Avenue, between Plains Road and Hendrie Avenue. It is approximately 1491 square metres, with a 30.4 metre lot width along Unsworth Avenue. Nothing is currently built on the Site. It is zoned D-176.

3On March 22, 2024, the COA refused the applications, citing as its rationale:

a. that the Applications did not satisfy the four tests; b. that the proposed intensification was not desirable or appropriate for the area; c. the area is comprised of larger lots with substantial side yards, which this proposal would deter from; d. the proposed development could facilitate homes that would deviate from the character of this established neighbourhood and change the streetscape to something drastically different; e. the intent of the Zoning By-Law and Official Plan policies is to ensure compatibility of development and encourage a cohesive streetscape; f. the proposal is not minor in nature; and g. the unique and distinct area requires a narrowed review of the scope of development, and the lack of information within the applications hinder the community’s ability to achieve this outcome.

APPLICATIONS/ VARIANCES REQUESTED

4The Applications requested the following:

a. a severance of the Site into two lots; b. a reduction in the minimum lot width of the retained lot to 15.2 metres from the prescribed 18.0 metres; and c. a reduction in the minimum lot width of the severed lot to 15.2 metres from the prescribed 18.0 metres. (collectively, b. and c. being minor variances “MV”)

Parties

5The Tribunal received one Party status request from Gary Filion. Mr. Filion sought to represent himself at the Hearing as a concerned neighbour. The Tribunal granted Mr. Filion Party status.

SUBMISSIONS

6The Appellant provided a lengthy document containing the Witness Statement of Michael Liam Doherty, supporting planning documents, excerpts from Official Plans, the CoA decision, and other appeal evidence. This submission was marked as Exhibit 1.

7Michael Liam Doherty, a Registered Professional Planner and Senior Planner at A.J. Clarke & Associates Ltd., testified with respect to the evidence set out in Witness Doherty’s Witness Statement dated August 29, 2024. Witness Doherty was qualified by the Tribunal to provide expert evidence in land use planning matters.

8The City attended the Hearing but elected to neither oppose the appeals, nor to submit any evidence or witnesses.

9The Tribunal also heard evidence from Gary Filion as a lay witness.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

10The Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act when making a decision regarding a MV application. Under s. 3(5) of the Act, the Tribunal’s decision on the MV must be consistent with the Provincial Policy Statement, 2020 (“PPS”).

11When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Act, to determine if the requested variance:

1. maintains the general intent and purpose of the Official Plan;
2. maintains the general intent and purpose of the Zoning By-Law;
3. is desirable for the appropriate development or use of the land; and
4. is minor in nature.

12The Appellant bears the onus of demonstrating that the four tests, as set out in s. 45(1) of the Act, have been met.

General Intent and Purpose of the Official Plan

13When the Appeal was filed, the Halton Region Official Plan and the City Official Plan 2020 (“OP”) were applicable to the Site. Bill 185, which was introduced on April 10, 2024, and took effect on July 1, 2024, reclassified the Region of Halton as an “upper-tier municipality without planning responsibilities”. Due to this, the Halton Region Official Plan is no longer applicable. The Region of Halton did not attend the hearing.

14The City stated that aspects of the OP are under appeal and that the City Official Plan 1997 is applicable in those situations. Witness Doherty stated that the City’s Official Plan 1997 was also reviewed for this application and that his statements are compatible with both the City’s Official Plan 1997 and the OP.

15In Schedule B of the OP, the Site is located in a designated Residential Neighbourhood Area (“RNA”). Policy 8.3 of the OP encourages new residential development and residential intensification within RNAs in accordance with provincial and City growth management objectives. Policy 8.3 also states that development in RNAs is to be compatible with surrounding properties.

16The City staff report (“Report”), included in Exhibit 1, defines compatibility as:

development or redevelopment that is capable of co-existing in harmony with, and that will not have an undue physical (including form) or functional adverse impact on, existing or proposed development in the area or pose an unacceptable rick to environmental and/or human health.

The Report goes on to provide metrics for evaluation which includes “aesthetics, noise, vibration, dust, odours, traffic, safety and sun-shadowing, and the potential for serious adverse health impacts on humans or animals”.

17Witness Doherty testified that the proposed lots, although narrower than nearby lots, meet the compatibility threshold. The witness contends that the proposed lots are intended for low-density residential use, are 35% larger than the minimum required, and that 43.7% of nearby lots (fronting Unsworth Avenue between Plains Road West and Hendrie Avenue) have front yards below 10 metres.

18According to Schedule B-1 of the OP, the Site is located in a designated Established Neighbourhood Area (“ENA”). Policy 2.4.2.(3)b) of the OP allows for intensification via consents in accordance with the maximum density permitted by the Residential – Low Density designation of 25 units per net hectare. Witness Doherty testified that the proposed lots would be below this density.

19It is the expert opinion of Witness Doherty that reducing the required minimum lot widths meets the general intent and purpose of the OP as defined under the RNA policies.

General Intent and Purpose of the Zoning By-law

20The Site is designated D-176. ‘D’ refers to a Development zone in the City Zoning By-Law 2020 (“ZBL”). In this zone, under the ZBL, Single Family Dwellings are permitted. The minimum lot width according to the ZBL is 18.0 metres.

21Properties to the east and south are zoned R2.1 (Low Density Residential zone) according to the ZBL and also permit Single Family Dwellings with minimum lot widths of 18.0 metres.

22The Report states that the intent and purpose of the minimum lot widths is to ensure a consistent streetscape and lotting pattern. The Report makes note that the current lotting fabric of Unsworth Avenue is characterized by a variety of lot widths that, except for 903 Unsworth Ave, exceed the requirements of the ZBL.

23It is the expert opinion of Witness Doherty that two narrower lots, at 15.2 metres in width, will not result in incompatible residential development and will still be governed by the zoning requirements in terms of placement and size. The witness makes note that the proposed lots will have areas that are 35% larger than the minimum lot size, according to the ZBL, which will allow development that is compatible with the intent and purpose of the ‘D’ zoning.

Desirable for the Appropriate Development or the Use of Land

24The Report indicates that planning staff are concerned that the variances would result in a lotting fabric and built form would not be compatible with the surrounding area.

25Witness Doherty testified that the reduced lot width will not impact the ability of the land development to be done in a similar form and density as surrounding lands. The witness mentioned that the proximity to a transit corridor also supports the argument for intensification.

26Mr. Filion raised multiple issues about the appropriateness of these MVs, including a loss of greenspace and potential flooding. Witness Doherty clarified that trees are often removed during construction and that an engineering report, included in Exhibit 1, states how the grading of the lots could be accomplished to mitigate flood risks.

Is Minor in Nature

27The Report states that the reduced lot widths are not minor due to compatibility with the surrounding area.

28Witness Doherty specified that the proposed variance represents a 16% reduction in the minimum lot width on lots that would still be 35% larger than the minimum lot area. The witness stated that this will allow housing to be developed that is similar in form and density to the surrounding properties. For example, the land use, streetscape, and character of the row homes to the south of the Site will be continued.

29The witness testified that the proposed lots will not alter the character of the neighbourhood.

CONSENT TO SEVER APPLICATION

30Policy 7.3.2(2)a) of the OP states that ENA properties “should be designed to enhance the existing physical character of the surrounding area within which it is situated” with respect to the local pattern of lots.

31Witness Doherty stated that the severance into two lots would be not out of character in the area as there are a variety of lot sizes nearby with many having lot widths less than the minimum required size. The proposed lots would be narrower but would also be deeper and therefore larger in area than the minimum required area.

32Witness Doherty testified that severing the Site into two narrowed lots aligns with the criteria under s. 51(24) of the Act. The witness explained how s. 51(24) applies to the Site as follows:

• is in keeping with matters of provincial interest as it provides for the orderly development of urban land for urban uses, increasing the supply of housing within the existing infrastructure network of the community;
• follows the orderly provision of local infrastructure and serves the public interest;
• conforms to the OP as outlined above;
• is on land suitable for residential development;
• is with a local transportation network that has capacity to service the additional parcel;
• proposes lot dimensions that are compatible with the character of the neighbourhood;
• involves lands that are free of restrictions and their development will not restrict the development of surrounding parcels;
• involves lands that are outside areas of natural hazards such as floods;
• is within an area where local utilities and municipal services have the capacity to service the additional parcel;
• is within an area where neighbourhood schools have the capacity to service the additional dwelling;
• there is no need for a road widening dedication;
• involves lands that are within the existing electricity grid of the City; and
• the proposed development would not be subject to site plan control.

33The City planning staff drafted a set of conditions of approval for the proposed severance. Witness Doherty acknowledged that the condition list is “a fulsome document that clearly outlines the responsibilities of the developer and includes multiple protections for the neighbouring properties and the City.” The witness stated that they support the conditions as a matter of good planning. The proposed conditions are in Tab 15 of Exhibit 1, and is included as an attachment to this Decision.

FINDINGS

34The Tribunal accepts the evidence of the Appellant and finds that the requested MVs have regard for the provincial interests expressed in s. 2 of the Act, are consistent with the PPS, and satisfy all four elements of s. 45(1) of the Act. Furthermore, the Tribunal finds the requested severance meets the criteria of s. 51(24) of the Act, when subject to the City staff conditions.

35Additionally, the expert evidence provided by the Appellant has not been opposed by the City and has not been successfully challenged by any other Party.

ORDER

36THE TRIBUNAL ORDERS that the appeal is allowed, and the following variances to the City of Burlington’s Zoning By-Law 2020 are authorized:

a. a reduction in the minimum lot width of the proposed severed lot to 15.2 metres; and b. a reduction in the minimum lot width of the proposed retained lot to 15.2 metres.

37THE TRIBUNAL ORDERS that the appeal is allowed, and the provisional consent is to be given, subject to the conditions set out in Attachment 1 to this Decision.

"A. Snowdon"

A. SNOWDON 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.

ATTACHMENT 1