Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 22, 2025
CASE NO(S).:
OLT-24-000854
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
Devon Place Incorporated
Subject:
Consent – refused by Approval Authority
Description:
To sever land to facilitate new single detached dwelling
Reference Number:
B-018/24
Property Address:
3903 Kathleen Street
Municipality/UT:
Windsor/Essex
OLT Case No:
OLT-24-000854
OLT Lead Case No:
OLT-24-000854
OLT Case Name:
Devon Place Inc. v. Windsor (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
Devon Place Incorporated
Subject:
Minor Variance - refused by Approval Authority
Description:
To sever land to facilitate new single detached dwelling
Reference Number:
A-030/24
Property Address:
3903 Kathleen Street
Municipality/UT:
Windsor/Essex
OLT Case No:
OLT-24-000855
OLT Lead Case No:
OLT-24-000854
Heard:
February 6 to 7, 2025 by Video Hearing
APPEARANCES:
Parties
Counsel
Devon Place Incorporated (“Appellant”)
City of Windsor (“City”)
Analee Baroudi
Aaron Farough
DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter set for a Hearing before the Tribunal today is in regard to the proposed consent and minor variance applications (“Proposal” / “Applications”) regarding 3903 Kathleen Street (“Subject Land”), in the City. The Proposal seeks to sever the existing property into two (2) equally sized lots, with the retained lot containing an existing two-storey single detached dwelling and the new severed lot being available for construction of a new dwelling.
2The Subject Land consists of a rectangular-shaped lot of 974.4 square metres (974.4 m2) that has 32 metres (“m”) of frontage along Kathleen Street. The site is currently occupied by a two-storey single-detached dwelling on the southern half of the site. The northern portion (which represents the proposed severed parcel) contains an open manicured lawn and a small shed/outbuilding. The site is generally flat. Municipal services are available at the lot line.
3The Subject Land is within the Residential land use designation as per Schedule D – Land Use of the City of Windsor Official Plan (“OP”). The site is zoned Residential District 1 (Low Density Residential), RD1.4 within the City of Windsor Zoning By-law No. 8600 (“ZBL”). The RD1.4 Zone permits single-unit dwellings. All of the properties within the immediate surrounding area (i.e., 250 m radius) share the same RD1.4 Zoning. The Subject Land is located within a “Settlement Area” as defined in the Provincial Planning Statement, 2024 (“PPS”).
4The proposed consent (“Consent”) would create undersized lots that are not compliant with the provisions of the zoning district. Therefore, the resulting lot width and lot area for the severed and retained parcels require relief from the requirements of the RD1.4 zone, as follows:
a. Section 10.4.5.1 – Minimum Lot Width (Both Severed and Retained lots) By-law Requirement - 18.0 m / Proposed - 16.0 m.
b. Section 10.4.5.2 – Minimum Lot Area (Both Severed and Retained lots) By-law Requirement – 540 m2 / Proposed - 487.50 m2.
5A Planning Report was generated by the City, which recommended denying the applications. The Committee of Adjustment (“COA”) denied the applications on June 27, 2024.
6In 2002, a similar request for a minor variance was submitted to permit the creation of two lots on the subject property, requiring relief from the lot width and area. The Committee of Adjustment denied the request; the Appellant, in that case, appealed the decision to the Ontario Municipal Board in 2003, which dismissed the appeal. It should be noted that the Appellant did not offer any expert evidence at the Hearing nor were they represented by counsel. The Tribunal is including this information, as it was raised during the Hearing; however, the Tribunal does not believe it to be relevant as this is a Hearing de novo to consider different applications under a different legislative scheme.
WITNESSES AND EXHIBITS
7The Tribunal heard from two (2) witnesses during the course of the Hearing:
a. Michael Davis, a professional planner, was retained by the Appellant. The Tribunal found that he was qualified to provide expert opinion evidence in the field of land use planning.
b. Zaid Zwayyed, a planner employed by the City and a candidate member with the Canadian Institute of Planners and the Ontario Professional Planners Institute, was retained by the City. The Tribunal found that he was qualified to provide expert opinion evidence in the field of land use planning.
8The following were made exhibits at the Hearing:
a. Appellant’s Document Book
b. City Document Book
c. Excerpts from the City of Windsor Intensification Guidelines
d. Acknowledgement of Expert Duty and CV of Mr. Zwayyed
LEGISLATIVE TESTS
9With respect to the Appeal under s. 53(19) of the Planning Act (“Act”), in order to determine whether provisional consent should be granted, the Tribunal must be satisfied that a Plan of Subdivision is not necessary. If not, regard must then be given to the criteria set out in s. 51(24) of the Act, which requires consideration of the following:
a. Have regard for matters of Provincial interest;
b. Is it premature or in the public interest;
c. Is it in conformity to the OP;
[10]
a. Are the lands suitable for the purpose for which they are to be subdivided;
b. Are the shapes and dimensions of the lot appropriate; and,
c. Are there adequate utilities and municipal services.
11With respect to minor variances, as outlined in s. 45(1) of the Act, the Tribunal must be satisfied that the variances:
a. maintain the general intent and purpose of the OP;
b. maintain the general intent and purpose of the ZBL;
c. are desirable for the appropriate development or use of the land, building or structure; and,
d. are minor in nature.
12Further, as with any planning decision, the Tribunal must be satisfied that the consent and variances are consistent with the Provincial Planning Statement, 2024 (“PPS”) and have regard to matters of provincial interest in s. 2 of the Act, as well as the decision of the Approval Authority and the information that was before it (though it is not bound by it). Finally, in general, the Tribunal must decide whether the Proposal is representative of good planning in the public interest.
EVIDENCE
13The Tribunal heard evidence from two experts in the field of land use planning. However, the Tribunal prefers the evidence of Mr. Davis. Mr. Zwayyed’s evidence was hard to follow, was scattershot, and, at times, irrelevant. At times, the logic of his argument was hard to follow. The Tribunal believes this was due to his inexperience. Because of this, the Tribunal finds his evidence unreliable. This is not to say that the Tribunal dismissed his evidence in its entirety, but that, when the evidence was weighed, the evidence of Mr. Davis was more persuasive in general.
14Mr. Davis testified that both Applications are consistent with the PPS and s. 2 of the Act as the proposed Applications will enable the creation of a new residential building lot in an established area with access to existing infrastructure and public services. As such, he continued, the proposal supports the efficient use of land and infrastructure, and the proposal maintains appropriate built form standards to ensure that public safety is maintained and provides for lot pattern and form that is compatible with the surrounding context.
15In the OP, Mr. Davis testified that the Subject Land is designated Residential on Schedule D – Land Use and that lands within the Residential designation are intended to provide the main locations for housing in the City. He continued by stating that the key objectives outlined in Section 6.3.1 of the OP promote compact neighbourhoods, which encourage a balanced transportation system (6.3.1.2) and promote residential redevelopment, infill and intensification initiatives (6.3.1.3) to allow for compact neighbourhoods, which encourage a balanced transportation system.
16Section 6.3.2.5 of the OP states that, at the time of submission, the proponent must demonstrate to the satisfaction of the Municipality that a proposed residential development within an area having a Neighbourhood development pattern is:
c. In existing neighbourhoods, compatible with the surrounding area in terms of scale, massing, height, siting, orientation, setbacks, parking and amenity areas.
17Mr. Davis opined that, with the exception of the proposed Minor Variances to lot width and lot area, the resulting development will continue to comply with all of the standard requirements of the RD1.4 Zone, thereby ensuring an appropriate level of compatibility as it relates to the scale, massing, height, siting, orientation, etc. of the development.
18Mr. Davis also opined that the proposed Consent follows an existing pattern of development in the area with rectangular-shaped, street-oriented building lots facing towards the perimeter of City blocks, on both the East Side and North/South streets in the area and that the proposed lot frontage aligns with a high proportion of lots in the area, ensuring that the resulting development produces a streetscape character that is consistent with many existing segments of the neighbourhood.
19The OP also sets out regulations that relate to infill development:
8.7.2.3 Council will ensure that proposed development within an established neighbourhood is designed to function as an integral and complementary part of that area’s existing development pattern by having regard for:
(a) massing;
(b) building height;
(c) architectural proportion;
(d) volumes of defined space;
(e) lot size;
(f) position relative to the road; and
(g) building area to site area ratios.
(h) the pattern, scale and character of existing development; and,
(i) exterior building appearance
(j) Council adopted Design Guidelines that will assist in the design and review of applications for development in accordance with the policies noted above.
20Mr. Davis provided evidence regarding the City of Windsor Intensification Guidelines (2022), which state: “Streets that display the most diversity in terms of lot size and street frontage are not necessarily negative in terms of community character. Varying lot sizes and frontages can accommodate a diversity of housing types and built forms. To support this variety and diversity as a positive attribute, it is important to ensure that the development is appropriate for the site and within the context of the of the surrounding built form”. Mr. Davis opined that the current Proposal achieves this by creating a unique lot that is appropriate in the context of the surrounding neighbourhood.
21Even though the lot being created is smaller than what is generally found in the neighbourhood, Mr. Davis opined that the current Proposal meets the general intent of the OP because a smaller lot can meet these criteria by demonstrating compatibility and maintaining the overall integrity of the neighbourhood’s character. Mr. Davis also opined that the creation of a smaller lot does not inherently disrupt the established pattern and can enhance the area by offering a diversity of housing options within the neighbourhood.
22Under the OP, s. 6.3.2.5 states that residential development in existing neighbourhoods must be compatible with the surrounding area in terms of scale, massing, height, siting, orientation, setbacks, parking, and amenity areas. Mr. Davis testified that the proposed lot is ‘Compatible’ because it can coexist without causing adverse impacts on surrounding properties. Mr. Davis opined that being “Compatible’ does not mean the lots need be the same or even similar and that the differences found in the current proposal and the other lots in the neighbourhood can create diversity, which is a positive attribute to a neighbourhood so long as they are still compatible.
23Mr. Davis also testified that the lots would comply with all other zoning standards and will follow an existing pattern of development with rectangular-shaped street-oriented building lots facing towards the perimeter of City blocks, and that the streetscape character will be preserved as the lot frontage is similar to many lots in the area.
24Mr. Davis testified that the Subject Land is currently zoned Residential District 1 (RD1.4 Zone) in the ZBL and that the RD1 Zone is the “least intense” Residential zone and provides for and regulates single-detached dwellings and existing duplexes, and semi-detached dwellings.
25Mr. Davis opined that the proposed lot size and frontage for both the severed and retained parcels continue to closely align with the requirements of the RD1.4 Zone and exceed the requirements of all other RD1 zone categories. The resulting single unit dwelling on the proposed severed lot, Mr. Davis continued, will comply with all other requirements of the existing RD1.4 Zone with respect to matters of built form including height, massing, setbacks, lot coverage and landscaping, having regard for the site, adjacent property, and the character of the surrounding lands.
26Mr. Davis opined that even though the proposed lot is smaller in size than others in a neighbourhood that does not mean it cannot be integral or complementary to the area, and that the scale of the development will be guided by the zoning regulations. Mr. Davis also opined that although the lot depth is reduced it will not cause adverse issues with respect to creating a viable building envelope, the lots will still be generously enough sized to comply with all of the other regulations, the difference in lot depth will not be noticeable from the street, and will not adversely effect the neighbours.
27The proposal represents a positive infill development and is a desirable and appropriate use of land, Mr. Davis opined.
28Mr. Davis also testified that there is no evidence of potential adverse impacts that could result from the creation of these lots, such as traffic impacts, privacy impacts, or health and safety impacts.
29Concerning the Act’s legislated four tests, Mr. Davis opined that:
a. the general intent and purpose of the OP is maintained by the Proposal as it aligns with the prevailing development pattern in the area with respect to the lot shape, orientation and lot frontage;
b. the general intent and purpose of the ZBL is maintained as the proposal aligns with the other requirements of the RD1.4 Zone. The proposed lot being created will have a greater lot width and size than would be required by any of the other zone categories.
c. The Minor Variances are desirable for the appropriate development or use of the land, building or structure as they align with the OP’s and PPS’s objectives of intensification and efficient use of land and infrastructure. The proposed development is in line with the neighbourhood's established character by maintaining a compatible built form and ensuring no adverse impacts on adjacent properties, such as privacy or sunlight access. This proposal will contribute to housing diversity and optimize the use of existing municipal services, thereby supporting both local and provincial planning goals.
d. The proposed Minor Variances are minor in nature as many lots with similar lot frontage already exist in the vicinity so the variances will maintain a “familiar” pattern of development as viewed from the street. The proposal will not introduce any unacceptable adverse impacts on adjacent properties.
DECISION
30The Tribunal allows the appeals and grants the Consent and Minor Variance Applications.
31The Tribunal finds that the proposed Consent and associated Minor Variances have appropriate regard for the matters of provincial interest outlined in Section 2 of the Act and are consistent with the PPS.
32The Tribunal finds that the proposed Consent and Minor Variances conform to the OP and maintain the general intent of the ZBL.
33The Tribunal finds that the Consent meets the criteria as set out in s. 53(19) of the Act.
34The proposed Variances to lot area and frontage are minor in nature and meet the four tests. There is no evidence that the proposed Consent and Minor Variances will result in adverse impacts to adjacent properties or the surrounding area. The proposed Consent and Minor Variances represent good planning and should be approved.
FINAL ORDER
35THE TRIBUNAL ORDERS that the appeal is allowed and the Variances to City of Windsor Zoning By-law No. 8600 are authorized.
36THE TRIBUNAL ORDERS that the appeal is allowed and the provisional Consent is to be given.
“A. Sauve”
A. SAUVE
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.