Sifton Properties Limited v. Municipality of Middlesex Centre, 2025 CanLII 5385

Ontario Land Tribunal

Issue Date: January 20, 2025 Case No(s).: OLT-24-000499

Proceeding Commenced Under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Sifton Properties Limited Subject: Minor Variance Description: To develop a 50-unit townhouse development Reference Number: A-02-2024 Property Address: Block 56 of 33M-836 (Timberwalk Subdivision) Municipality/UT: Middlesex Centre/Middlesex Co OLT Case No.: OLT-24-000499 OLT Case Name: Sifton Properties Limited v. Municipality of Middlesex Centre

Heard: October 10, 2024 by video hearing

Appearances

Parties	Counsel/Representative*
Sifton Properties Limited	Analee Baroudi
Municipality of Middlesex Centre	David Samuels
Bill Masse	Michael Barton*

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

Introduction

1The matter before the Tribunal is an appeal by Sifton Properties Limited ("Sifton"), pursuant to section 45(12) of the Planning Act ("Act") with respect to the Municipality of Middlesex Centre's ("Municipality") refusal of a Minor Variance application ("MVA").

Overview

2Sifton is the owner of an approved residential subdivision known as the "Timberwalk Subdivision" in the Urban Settlement Area of Ilderton located within the Municipality, in the County of Middlesex.

3Sifton is currently constructing Phase 5 of the Timberwalk Subdivision. Phase 5 includes a medium density residential block located on Timberwalk Trail, south of Arrowwood Path, legally described as Block 56 of 33M-836 ("Block 56"). Sifton is seeking to develop Block 56 as a 50-unit townhouse development ("Subject Property").

[4] Sifton is requesting approval of the following two minor variances through this appeal:

1. To reduce the Minimum Exterior Side Yard Setback to a public road from 6 metres ("m") to 4 m for Unit 1;
2. To increase the maximum density from 30 units per hectare ("upha") to 37 upha in order to facilitate the 50-unit townhouse development.

5On April 17, 2024, the Committee of Adjustment denied the application for the two (2) minor variances. A Notice of Decision was issued on April 18, 2024.

6The Committee did not include reasons in its written decision or in the Notice of Decision.

7The Tribunal was informed that the scheduled one day hearing would not be required as the Parties confirmed that a settlement had been reached and was presented for the consideration of the Tribunal.

Status Request

8Prior to the scheduled hearing, and subsequent settlement presentation, the Tribunal was in receipt of a Party status request from Bill Masse, an adjacent neighbour.

9Mr. Masse expressed strong opposition as his property will be directly and substantially impacted by the proposal and minor variances requested through this application.

10The Tribunal canvassed all Parties seeking their opinions regarding the request. No Parties opposed the request.

11As the Party status request was received within the required parameters and a professional witness would present relevant testimony, the Tribunal granted Party status to Mr. Masse.

Evidence and Summary Opinions

12The Tribunal was presented with two witness statements.

Mr. Masse's Evidence

13Michael Barton is a professional land use planner with the firm MB1 Development Consulting Inc. Mr. Barton has over 20 years of professional land use planning experience and has previously been qualified to provide expert evidence in the area of land use planning before the Ontario Land Tribunal ("OLT") and its predecessors.

14Mr. Barton was affirmed and qualified to provide expert evidence in relation to land use planning.

15Mr. Barton's summary opinion was as follows, below.

1. Maintains the General Intent and Purpose of the Official Plan

16Mr. Barton opined that the proposed minor variances, individually and cumulatively, do not maintain the general intent and purpose of the Municipality's Official Plan ("OP").

[17] Mr. Barton provided:

• The proposed density is not generally compatible with adjacent residential density, as directed under section 5.2.3 b) of the OP;
• The proposed density and relief to the zoning performance standards will result in excessive clustering of multiple dwellings as opposed to appropriate integration with the surrounding neighbourhood, as directed under section 5.2.3 d) of the OP;
• The proposal seeks significant residential intensification at the periphery of the Urban Settlement Area and is not adjacent, or in close proximity, to the village centre, which is encouraged in section 5.2.3 e) of the OP;
• The proposal and requested minor variances will facilitate land use and built form that is not in keeping or in harmony with the character of the surrounding neighbourhood, as directed in the Municipal Design Policies in sections 6.3 b), c), and f) of the OP; and
• The requested relief to the prevailing performance standards of the UR3-12 Zone is not required to achieve the form of residential intensification encouraged for Residential Areas in the OP.

2. Maintains the General Intent and Purpose of the Zoning By-law

18Mr. Barton provided that the intent and purpose of the Zoning By-law is to adopt permissions and performance standards that implement the OP. In this case, the appropriate zoning standards should facilitate a range of residential dwelling types through residential intensification that is compatible with the surrounding neighbourhood in terms of existing and planned land use, and built form.

19The Zoning By-law designates the Subject Property with a UR3 zoning category, permitting more intensive land use compared to the UR1 zoning in the nearby residential area. Exception 12 has been implemented to provide additional flexibility to the UR3 Zone's performance standards, ensuring that the land use and building form are compatible with the surrounding neighbourhood.

20The Municipality has diligently applied zoning permissions and performance standards to the Subject Property, enabling greater intensification and a wider range of dwelling units compared to the surrounding residential areas. The proposed minor variances aim to further reduce standards to allow for a higher number of units, potentially compromising compatibility with the neighboring built form character and density.

21Mr. Barton opined that the requested minor variances, individually and cumulatively, will not maintain the general intent and purpose of the Zoning By-law.

3. Minor in Nature

22Mr. Barton opined the requested variances are not minor, as they will collectively lead to significant changes in the built form that can be constructed on the Subject Property, beyond the already modified as-of-right permissions of the underlying zoning.

23The requested minor variances will cumulatively allow for greater density than intended under the Zoning By-law without any demonstrated enhancement of the use of the Subject Property relative to the objectives and policies of the OP, implemented through the Zoning By-law.

4. Desirable for the Development and Use of the Subject Property

[24] Mr. Barton opined that the requested minor variances are not desirable as:

• The relief will further erode the as-of-right zoning performance standards established through exceptions to the underlying UR3 zoning to facilitate appropriate residential intensification;
• They will not achieve the compatible and harmonious residential intensification outlined in the OP policies and objectives;
• They will achieve only an increase in the number of units that can be constructed on the Subject Property without more effectively achieving the residential intensification objectives of the OP relative to the underlying as-of-right zoning performance standards; and
• They represent intensification better suited to a location within, or in close proximity to, the village centre, or with greater existing and planned density.

25Mr. Barton concluded that the MVA should be refused.

Sifton's Evidence

26Jay McGuffin is a professional land use planner and is Vice-President and Partner with the firm Monteith Brown Planning Consultants. Mr. McGuffin has over 27 years of professional land use planning experience, and has previously been qualified to provide expert evidence in the area of land use planning before the OLT and its predecessors.

27Mr. McGuffin was affirmed and qualified to provide expert evidence in relation to land use planning.

Settlement

28Mr. McGuffin informed the Tribunal that on September 19, 2024, the Municipality and Sifton entered into Minutes of Settlement ("MOS"), wherein they agreed to resolve the appeal as set out in the agreement to settle ("Agreement").

[29] In accordance with the MOS, the Agreement includes the following revisions and conditions to address concerns in regard to setback and buffering: (a) allowing the appeal and approving the following variances: (i) Increase the maximum density from 30 units per hectare to 37 units per hectare in order to facilitate the 50-unit townhouse development; and (ii) Reduce the Minimum Exterior Side Yard Setback to a public road from 6.0m to 4.0m for Unit 1 (b) Imposing the following conditions to the approval of the variances, to be fulfilled through the site plan approval process: (i) Enhanced landscaping for the purpose of aiding in increasing privacy between properties will be provided along the interface between units 11,12, 23, and 24 the abutting lands to the north; and (ii) Enhanced landscaping and façade on Unit 1 will be provided to address the streetscape along the public street."

30Mr. McGuffin's summary opinion was as follows, below.

1. Maintains the General Intent and Purpose of the Official Plan

[31] Mr. McGuffin opined the requested variances, as modified through the MOS, do maintain the intent and purpose of the OP;

• Policy 5.1.1 of the OP identifies Ilderton as being designated as an Urban Settlement Area, which is expected to have the highest concentration and intensity of land uses, and will be the focal point for future growth. The proposed increase in density and the 2 m deviation from the minimum exterior side yard setback provision for one unit will enable efficient use of land and infrastructure. This will support a denser land use, ensuring a mix and range of residential housing in a compact urban form, making effective use of existing urban services and land to foster growth within Ilderton's Urban Settlement Area.
• Policy 5.2.1 a) of the OP states that the Municipality is to encourage a variety of housing types, sizes, and tenures. Policy 5.2.3 b) of the OP states that densities proposed should be generally compatible with adjacent densities within the existing residential area. Policy 5.2.1 e) of the OP goes further and demands that the Municipality: shall support opportunities to increase the supply of housing through intensification, while considering issues of municipal service capacity, transportation issues, and potential environmental considerations. Specifically, the Municipality shall require that 15 percent of all development occur by way of intensification.
• The Timberwalk Subdivision was initially approved for 256 units. The proposed variance adds eight more units, resulting in a 3% increase in the overall subdivision's density. Specifically, in the medium density blocks (Blocks 55 and 56), the approved densities were 31 units in Block 55, and 42 units in Block 56, totaling 73 units. The additional eight units in Block 56 represent an 11% increase in density within these medium density blocks. This proposed intensification aligns well with the requirements set by Policy 5.2.1 e) of the OP.
• The proposed development offers a variety of housing types within the Timberwalk Subdivision, with an appropriately increased density compared to the single detached homes to the north and the medium density housing to the southwest. The deviation from the maximum density provision (from 30 upha to 37 upha) aligns with the general intent of the previously approved Zoning By-law for Block 56, which acknowledges a denser land use. This is consistent with other increased densities throughout the Municipality.
• Sifton has taken significant steps to address measures of compatibility with the neighbourhood. The number of variances being requested have been significantly reduced from seven (7) to two (2) and the MOS includes further adjustments to the exterior side yard setback, and establishes requirements for landscape buffering. The buffering, through landscaping and fencing, will be provided from adjacent development and natural heritage features, including a commitment for enhanced landscaping through the MOS addressing the interface between units 11, 12, 23, and 24, and along the Timberwalk Trail street frontage.

2. Maintains the Intent and Purpose of the Zoning By-law?

[32] Mr. McGuffin opined the requested variances, as modified through the MOS, do maintain the intent and purpose of the Zoning By-law:

• A reduction in the minimum exterior side yard setback to a public road to 4 m is reasonable, as it only applies to Unit 1 and addresses the irregular shape and alignment of the block, as well as the 90-degree alignment of driveways to the internal road network for safe access. Additionally, adhering to this provision under the existing Zoning By-law would further affect the minimum front yard depth for Units 1 to 5 due to the "pinch point" created by the angled rear lot line west of Unit 5, making it difficult to park a vehicle appropriately in the driveway.
• Increasing the maximum density to 37 upha is also reasonable, as the proposed development efficiently utilizes land and infrastructure, reducing costs for the end user. It provides opportunities for intensification and aligns with the density ranges allowed in many other developments within the UR3 zoning structure.

3. Desirable for the Development and Use of the Subject Property

[33] Mr. McGuffin opined the requested variances, as modified through the MOS, are appropriate as:

• The requested relief to provisions of the Zoning By-law makes efficient use of land and infrastructure, and represents an example of gentle intensification, and compact urban form, while ensuring compatibility with adjacent existing low density residential uses.

4. Minor in Nature

[34] Mr. McGuffin opined the requested variances, as modified through the MOS, are minor in nature as:

• A reduction to a 4 m exterior side yard setback to the public road impacts only one of fifty units. A 4 m setback is shown at the rear of Unit 1 due to previously established limits of the block and orientation of the townhouse dwelling units to a private lane. A larger setback of 4.8 m is able to be maintained at the front of the Unit 1 to the exterior side lot line.
• The variance is similar to other variances in the Timberwalk Subdivision where a 3 m side yard abutting a public street was approved for the medium density Block 55 (A-22-2023), and a 4 m minimum exterior side yard was approved (A-21-2023) for Lots 8 and 11.

Findings

35The Tribunal's authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an applicant when making an application for the authorization of variances.

[36] The four tests require that that the variances: a. Maintain the general intent and purpose of the OP; b. Maintain the general intent and purpose of the Zoning By-law; c. Be desirable for the appropriate development or use of the land, building or structure; and d. Be minor in nature.

37The Tribunal accepts and agrees with the statement of Mr. McGuffin.

38The Tribunal is satisfied that the proposed variances, through the MOS, represent an efficient use of land resources and infrastructure.

39The Tribunal credits that the Settlement reached by the Parties is fair and reasonable. The resulting variances will allow for eight additional units in the plan, which is particularly important given the current housing supply crisis in the province and the ongoing efforts to identify opportunities for increased density. Further, the reduction to a 4 m exterior side yard setback to the public road affects only one out of 50 units.

40The Tribunal finds that the requirements required of the four tests in the Act are met, including that they are minor, desirable for the appropriate development or use of the land, that they maintain the general intent and purpose of the Zoning By-law, and the variances maintain the general intent and purpose of the OP.

41The Tribunal praises the Parties in working collaboratively and engaging in productive discussions in order to reach a settlement in these proceedings.

Order

42THE TRIBUNAL ORDERS THAT in accordance with subsection 45(18) of the Planning Act, R.S.O. 1990, c. P.13, as amended, the appeal is allowed in part, and the proposed two (2) variances, as modified and recommended for approval by the Sifton Properties Limited and the Municipality of Middlesex Centre, and set out in Attachment 1 are hereby authorized subject to the two (2) Conditions, also set out in Attachment 1.

"Carmine Tucci"

CARMINE TUCCI 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