Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 25, 2025 CASE NO(S).: OLT-24-001176

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Rashid Farhat et al. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a 4 storey residential apartment Reference Number: ZBA 323 Property Address: 151 Robson Road Municipality/UT: Leamington/Essex OLT Case No.: OLT-24-001176 OLT Lead Case No.: OLT-24-001176 OLT Case Name: Rashid Farhat et al. v. Leamington (Municipality)

Heard: April 30, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Rashid Farhat et al. ("Appellant")	Edwin (Ed) Hooker
Municipality of Leamington ("Municipality")	Charn Aha (Bill) Kim
William Gherasim	Analee Baroudi

DECISION DELIVERED BY L.P. YOU ON APRIL 30, 2025, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The appeal arises under s. 34(11) of the Planning Act, R. S. O. 1990, c. P. 13 ("Act"), as amended, by the Appellant, with respect to the refusal of the Municipality’s Council of the application for Zoning By-law Amendment ("Application") to permit a four (4)-storey residential apartment on the lands municipally known as 151 Robson Road ("Subject Lands").

CONTEXT

2The Subject Lands are located on the northeast side of Robson Road, approximately 20 metres ("m") northwest of the intersection of Robson Road and Cherokee Road.

3The Subject Lands have an area of approximate 0.58 hectares ("ha") and approximate 56.91 m of frontage along Robson Road. There are a single-detached dwelling and an accessory building on the Subject Lands.

4The Subject Lands are designated "Settlement Area" in the County of Essex Official Plan ("County OP") and designated "Residential" in the Municipality’s Official Plan ("Municipality OP"). The Municipality’s Zoning By-law No. 890-09 ("Municipality ZBL") zones the Subject Lands as Residential (R1) Zone.

5The Subject Lands have access to the municipal services along Robson Road.

6The Subject Lands are surrounded by industrial uses to the north, and residential uses to the east, south and west.

7The Appellant sought to rezone the Subject Lands from R1 Zone to a Residential (R5) Zone to facilitate a development of a four-storey, multi-unit dwelling with one (1) loading space with screening on the Subject Lands. This proposal also includes an off-street surface parking area towards the rear of the Subject Lands.

STATUS REQUEST

Party Status Request

8Counsel retained by Mr. William Gherasim submitted a written request for Party status pursuant to the Rule 8.1 of the Ontario Land Tribunal Rules of Practice and Procedure ("Tribunal’s Rules"), along with summary of Planning Evidence by a Registered Professional Planner, Ms. Rita Jabbour, to the Tribunal prior to and during the hearing.

9In Mr. Gherasim’s request, he confirmed that he acknowledged and accepted the role and responsibilities of being a Party at the hearing. He further indicated that, he made oral submissions at the public hearing organized by the Municipality and there were grounds to add him as a Party, therefore, he satisfied the criteria as set out in s. 34(11) and 34(24.2) of the Act to be added as a Party at this Hearing.

10Mr. Gherasim stated in his request, that his property was directly back against the Subject Lands, and he had concerns about reducing privacy, sunlight, and property value in addition to the issues described in Ms. Jabbour’s summary of planning evidence ("Summary").

11Ms. Jabbour expressed her opinion in her Summary that the Application was not consistent with the policies in the Provincial Planning Statement 2024 ("PPS 2024") regarding appropriate density range of housing options, and the scale of the development. Further, in Ms. Jabbour’s opinion, the Appellant did not provide sufficient evidence to support the appropriateness of the proposal on the Subject Lands as a Planning Report and Servicing Studies or Traffic Impact Studies were not submitted or available to the public.

12Upon the receipt of the request from Mr. Gherasim through his Counsel, the Appellant issued a formal reply with an objection to Mr. Gherasim’s request, and in the reply, the Appellant stated that the Tribunal "may" add an individual as a Party with respect to s.34(24.1) of the Act and subject to the satisfaction of one of the conditions as set out in s.34(24.2) of the Act. The Appellant further indicated that it was "may", not "shall", and therefore, it was not mandatory for the Tribunal to grant the Party status to Mr. Gherasim.

13Counsel for the Appellant further argued that some of the issues and concerns in Mr. Gherasim’s request were different from what Mr. Gherasim raised at the public hearing, therefore, it was not reasonable to add new issues and concerns during this Hearing. Counsel for the Appellant stated that Mr. Gherasim had no plans to call a traffic expert to support his concern about traffic and safety.

14Counsel for the Appellant also argued that the reports and studies referenced by Ms. Jabbour were submitted to the Municipality and available to the public. Counsel for the Appellant stated that the submission of these documents to the Municipality was confirmed in Mr. Connor Wilks’ Affidavit attached to the formal reply of the Appellant.

15Counsel for the Appellant finally concluded that there were no sufficient grounds to add Mr. Gherasim as a Party during the hearing.

16The Tribunal finds that there are possible impacts to Mr. Gherasim’s property due to the location and scale of the development on the Subject Lands. Further, the Tribunal recognizes that there are new issues in Mr. Gherasim’s request for Party status, and there are no policies in the Tribunal’s Rules restricting a third Party adding new issues at the hearing and Mr. Gherasim’s request meets the conditions set out in s.34(24.2) of the Act.

17The Tribunal advised the Parties and individuals at the hearing that property value loss was not a planning matter, and therefore, impact to property value would not be considered and discussed during the hearing and will not influence the decision.

18The Tribunal finds that the timing of the retaining of Ms. Jabbour was irrelevant to the matter before the Tribunal, and Mr. Gherasim had the right to express his concerns about traffic and other disciplines though no expert witnesses for these disciplines were retained to present evidence to support Mr. Gherasim’s concerns. Therefore, the Tribunal concludes that Mr. Gherasim has appropriate grounds to be added as a Party and his request for Party status is granted with respect to 8.2 of the Tribunal’s Rules to ensure the fairness of the procedure to all Parties.

Participant Status Request and Concerns

19The Tribunal received 18 requests from the following individuals for Participant status:

• Debra Parent
• Lorraine Maurice
• Aline Menard
• Lou Ann Seguin
• Anthony J Nicholls
• Valerie Gherasim
• Marilyn Robbins
• Sandra Palesh
• Robin Smith
• Mark and Ann Ginter
• Chris Mendes
• Dave Del Greco
• Ruth Morris-Lambier and Garry Lambier
• Margaret J. Nicholls
• Brian and Kim Haydon
• Neville D’costa
• Jeff Watson
• John and Laurie Yakymchuk

20The above-listed Participants expressed their concerns in writing summarized as follows:

• Unnecessary intensification and not compatible development;
• Shadowing, privacy, noise, traffic, safety and lighting;
• Flooding and inadequate infrastructure;
• Issues with large service vehicles and emergency vehicles; and,
• Neighborhood character.

21Counsel for the Appellant expressed no objections to the granting of Participant status to the above-listed individuals but requested that the Tribunal not consider Mr. Watson’s Participant Statement as expert opinion evidence, as Mr. Watson was acting as a resident with concerns about the Application.

22The Tribunal granted the Participant status to the individuals listed above in Para [19] with the consent of the Parties and determined that Mr. Watson’s Participant Statement would only be considered as the concerns of a resident adjacent to the Subject Lands.

NOTICE OF HEARING

23There is no issue with Notice of this Hearing.

EXHIBITS

24The following Exhibits were marked during the hearing:

1. Affidavit of Service Notice of Hearing marked as Exhibit 1;
2. OLT-24-001176_Appellant_Evidence Brief_ April 30, 2025, marked as Exhibit 2;
3. Reply Statement of David Ashbourne dated April 25, 2025, marked as Exhibit 3;
4. Municipal package to OLT_ April 30, 2025, marked as Exhibit 4.
5. Rita Jabbour’s witness statement on the merits dated April 18, 2025, marked as Exhibit 5; and,
6. Visual statement marked as Exhibit 6.

ANALYSIS AND FINDINGS

25The Tribunal qualified Mr. David Ashbourne, a Registered Professional Planner and full member of the Canadian Institute of Planners, to provide the Tribunal with expert opinion evidence in the area of land use planning.

26The Tribunal qualified Ms. Rita Jabbour, a member of Registered Professional Planner, and a full member of the Ontario Professional Planners Institute and the Canadian Institute of Planners, to proffer opinion evidence in regard to land use planning in the matter before the Tribunal.

27Mr. Ashbourne indicated that, the Appellant requested the Municipal Council to defer the Application to allow for the public and Council to review the submission materials thoroughly, which were inadvertently omitted from the public notice in advance of the hearing, but the Council denied the deferral request and subsequently refused the Application despite the recommendation of Municipal staff. The refusal decision was based on the concerns from the public related to traffic, compatibility, flooding and the environment.

28In Mr. Ashbourne’s opinion, the additional materials, including the Planning Justification Report, Traffic Report, Functional Servicing Report, Preliminary Stormwater Management Report, Environmental Impact Assessment, Environmental Impact Assessment Terms of Reference, Archaeological Assessment Stage 1 and 2, were sufficient to address the concerns from Council and the public.

29Mr. Ashbourne stated that he concurred with the Municipal Staff’s opinion in the report which recommended the approval of the Application to Council.

30Counsel for the Municipality confirmed that the Municipality held the same position on the refusal of the Application at the Council meeting subject to the grounds in the Municipality’s Notice of Decision and requested that the Tribunal deny the Application to protect the interest of the public, particularly the neighbouring residents and the Municipality.

31The Tribunal supports Mr. Gherasim and other residents expressing their concerns about traffic, flooding, noise and lighting, but no experts for these disciplines were retained to present evidence to support their concerns during the hearing, and the impacts are not measurable at this time.

Issue #1-Does the Application have regard to matters of provincial interest as outlined in s.2 of the Act, and is the Application consistent with the PPS 2024?

32In Mr. Ashbourne’s response to Ms. Jabbour’s witness statement, he held the opinion that the "public interest" in s.2 of the Act had to be broadly assessed instead of being assessed based on opinions or concerns of the adjacent property owners. Mr. Ashbourne further expressed his opinion that the Application had regard to the applicable matters of provincial interest in s.2 of the Act as the Application would accommodate an appropriate range of housing options within the Municipality area and the Subject Lands which are an appropriate location for growth and development.

33Mr. Ashbourne opined that the Application was consistent with the PPS 2024 as it was an orderly development with proper intensification and municipal services available. Mr. Ashbourne stated that the Municipal Staff held the same opinion as was indicated in the Staff report to Council.

34Ms. Jabbour had a different opinion on the consistency of the Application with the PPS 2024, as in her opinion, the PPS 2024 should be implemented as an entirety, and the Application did not identify an appropriate type and scale of development or how the proposed built form on the Subject Lands would be transitioned to adjacent areas.

35Mr. Ashbourne disagreed with Ms. Jabbour’s interpretation of the PPS 2024 and argued that the Municipality, the Planning Authorities, referred to in the PPS 2024, should provide an appropriate range and mix of housing options and densities to meet the needs of the current and future residents in the regional market.

36In Mr. Ashbourne’s opinion, the proposed development would enhance the ability of the Municipality to achieve the projected growth requirement by providing a slightly higher density on the Subject Lands. Mr. Ashbourne further confirmed that the proposed four-storey building to the permitted three-storey buildings on the adjacent lands represented good transition, which conformed to the PPS 2024.

Issue #2- Does the Application conform to the County OP and Municipality OP?

37Ms. Jabbour stated that the new County OP (2024) had been adopted by the County and was awaiting the approval from the Ministry. Ms. Jabbour further indicated that the 2024 version of County OP designated "Primary Settlement Areas", such as the Municipality, as Strategic Growth Areas, which encouraged the development with gentle density in a way of being compatible with the existing neighbourhood. It is Ms. Jabbour’s opinion that the Application was not compatible with the neighbourhood.

38Mr. Ashbourne pointed out that the 2024 version of the County OP (County OP 2024) was adopted, but was not in effect at the time of the submission of the complete Application to the Town, therefore, the Application only reviewed the directions from the 2014 version of the County OP at the time of the Application. However, in Mr. Ashbourne’s response to Ms. Jabbour’s interpretation of the County OP 2024 and his witness statement, Mr. Ashbourne assessed the directions in this version and found out that the County OP 2024 did not define "Gentle Density". Mr. Ashbourne opined that the Application did conform with the term "Gentle Density" as it sought a broader range of residential uses, and the proposed density was slightly higher than what was permitted by the R1 Zone on the Subject Lands.

39Mr. Ashbourne expressed his opinion that the current use of the Subject Lands was insufficient, and the Application proposed a slightly higher density residential use, which was permitted and encouraged by the relevant policies of Municipality OP.

40Further, Mr. Ashbourne stated that the Essex Region Conservation Authority ("ERCA") expressed no objections to the Application but required the Appellant to obtain a permit prior to any construction or site alteration or other activities commencing on the Subject Lands, and the Appellant acknowledged this requirement from the ERCA.

41Mr. Ashbourne explored other policies under Municipality OP regarding the suitability to permit the proposed development on the Subject Lands. Mr. Ashbourne specifically referred to the Functional Servicing Report and Traffic Assessment with a conclusion that the adjacent municipal services had sufficient capacity for the proposed development, and no traffic hazards were identified as a result of the proposed development. In Mr. Ashbourne’s overall summary of the Municipality OP, the Subject Lands are suitable for the proposed development based on the Conceptual Site Plan.

Issue #3-Does the Application represent good land use planning and public interests?

42Mr. Ashbourne demonstrated to the Tribunal the difference in the as-of-right performance standards in the R1 Zone and the R5 Zone in the Municipality ZBL and stated that the Application would comply with all the provisions of R5 Zone.

43Mr. Ashbourne further stated that, though R5 Zone had no specific restrictions on the height of the proposed building, only approximately 13.2 m in height (or four storeys) of the proposed building were achievable based on the size of the site and provisions of R5 Zone, which required the minimum interior yard setback to be one half of the height of the proposed building. Mr. Ashbourne summarized that the Appellant only sought an increase of one more storey than the height allowed in the R1 Zone.

44Mr. Ashbourne demonstrated to the Tribunal that the impacts of the proposed density and height to the neighbouring properties were actually less than what was permitted in the R1 zone.

45Mr. Ashbourne confirmed that a holding provision would be added to ensure the proposed development would be adequately serviced through municipal services during the Site Plan Control stage.

46Counsel for Mr. Gherasim challenged Mr. Ashbourne that buffering should be considered at this stage to address concerns from residents and Mr. Gherasim regarding privacy loss caused by the proposed development.

47Mr. Ashbourn responded that the proposed development on the Conceptual Plan was not an actual plan of the development, and the Conceptual Plan only reflected the maximum density and height of the future building under the R5 Zone should the Application receive the approval. Mr. Ashbourne also argued that the setbacks should be one of the factors to be considered at the stage of rezoning and the landscaping screening could be discussed in the detailed Site Plan Control stage.

48Counsel for Mr. Gherasim got it confirmed by Mr. Ashbourne that the approval of the Application would permit a maximum of 120 units per ha on the Subject Lands, and the studies and reports were prepared based on the conceptual development plan, which has much less units.

49Mr. Ashbourne stated that, though the maximum number of units in the R5 Zone was 120 units, the Application only proposed 69 units, as this proposal was achievable on the Subject Lands. He also indicated that other professionals would further confirm the service capacity for the proposed development in the detailed design stage, but from a planning perspective, 120 units per ha in the R5 Zone are appropriate and represented efficient use of the lands and physical possibility of the 120 units per ha on the Subject Lands would be further reviewed. Mr. Ashbourne emphasized again that the conceptual development plan only reflected the maximum allowable building and was not an actual development to be proposed on the Subject Lands.

50Counsel questioned Mr. Ashbourne if other zones had been considered on the Subject Lands and if the Application considered the impacts of the future encroachment of balconies into the interior yard setbacks to the directly adjacent properties.

51In Mr. Ashbourne’s response, he demonstrated to the Tribunal the difference in the shadowing impacts of the proposed development between the R4 Zone, which was accepted by Mr. Gherasim, the existing zone (R1) and the R5 zone. Mr. Ashbourne concluded that the proposed R5 Zone had overall less impacts to the neighbouring properties after considering all the factors, such as allowable height, possible encroachment of balconies and permitted interior yard setbacks in the Municipality ZBL adopted by Council.

52Counsel for Mr. Gherasim questioned Mr. Ashbourne if the Appellant agreed to impose site specific requirements of height and density limits on the Subject Lands.

53Mr. Ashbourne responded back that he and the Appellant had not discussed the site-specific requirements of the limits on the height and density, and later, the Appellant, through their Counsel, agreed to approve a site specific R5 zone:

• to limit the height of any building from the maximum building height of 18 m provided for in s. 10.1.3 in the Municipality ZBL, to a maximum height of 14 m; and,
• to change the maximum density of 120 units per gross ha provided for in s.10.1.3 to a maximum density of 70 units per gross ha.

54The Appellant’s Counsel stated that the Municipality did not call expert witnesses to support the Municipality’s request to deny the Application before the Tribunal.

55The Tribunal finds that the "Public Interest" should be assessed more broadly and there should be a balance between the broad public interest and the concerns of the residents on the neighbouring lands and the Municipality. In addition, the Tribunal recognizes that accommodating mixed-range housing options in the existing neighbourhood will enhance the affordability of the Municipality in the regional market and will support the Municipality to achieve the growth target in the Municipality area. With that being said, the Tribunal is more persuaded by the Appellant’s evidence that the Application has regard to the provincial interest and represents the public interest.

56The Tribunal agrees with the assessment of the Appellant’s expert witness on the impacts of the different zones on the Subject Lands that the achievable built form in the R5 Zone will result in less impacts to the neighbouring properties compared to the existing and other zones. However, the Tribunal does acknowledge the concerns from the adjacent properties about the loss of sunlight in addition to high density and has considered the approach requested by the residents and the revised approach agreed on by the Appellant. The Tribunal finds that it is appropriate to insert site specific requirements for the future development on the Subject Lands to limit the density and maximum height and further to ensure the density on the Subject Lands will be gentle while the lands are efficiently used, and the built form will transition well and is compactible with the character of the existing neighbourhood.

57The Tribunal finds that the Appellant’s response to the concerns about the capacity of the municipal services, drainage, lighting, and buffering is acceptable and detailed measures to address these concerns could be implemented in the Site Plan Control stage. The Tribunal interprets the purpose of the ZBL the same as the Appellant’s expert witness that the requirements of setbacks have to be considered in the rezoning application and the landscaping screening could be held off until the detailed stage to the satisfaction of the Municipality.

58The Tribunal has carefully assessed the testimony and evidence from parties and prefers the evidence from the Appellant. The Tribunal finally finds that the Application:

• Has regard to the applicable matters of provincial interest set out in s.2 of the Act;
• Conforms to the PPS 2024, County OP 2014 version and Municipality OP;
• Reflects the principles of good land use planning; and,
• Represents the public interest.

ORDER

59THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, and directs the Municipality of Leamington to amend Zoning By-law No. 890-09 as follows, and as set out in the Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Leamington to assign a number to this by-law for record keeping purposes.

1. That Schedule "A", Map 60 of By-law No. 890-09, as amended, is hereby further amended by changing the zoning classification on the lands depicted on Schedule "A" attached hereto and forming part of this amendment, from Residential Zone (R1) to Residential Zone (5(h)-site specific), adding the following site-specific requirements:

   • The maximum height of building and structure shall be 14 m; and,
   • The maximum density shall be 70 units per gross hectare.

2. This by-law shall take effect from the date of passing by Council and shall come into force in accordance with s. 34(11) of the Planning Act, R. S. O. 1990, c. P. 13.

"L.P. You"

L.P. YOU 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

Draft Zoning By-law Amendment

The Corporation of the Municipality of Leamington

By-law ####

By-law to amend the comprehensive Zoning By-law No.890-09, as amended for the Municipality of Leamington, which pertains to the Subject Lands

ZBA 232

151 Robinson Road

Whereas By-law No. 890-09, as amended, is a comprehensive zoning by-law regulating the use of lands and the character, location and use of buildings and structures within the Municipality of Leamington;

And whereas the Council of the Corporation of the Municipality of Leamington deems it appropriate to further amend By-law No. 890-09;

And whereas this By-law will conform with the Official Plan (as approved February 5, 2008) in effect for the Subject Lands;

Now therefore the Council of the Municipality of Leamington enacts as follows:

1. That Schedule "A", Map 60 of By-law No. 890-09, as amended, is hereby further amended by changing the zoning classification on the lands depicted on Schedule "A" attached hereto and forming part of this amendment, from Residential Zone (R1) to Residential Zone (5(h)-site specific), adding the following site-specific requirements:

   • The maximum height of building and structure shall be 14m; and,
   • The maximum density shall be 70 units per gross hectare.

2. This by-law shall take effect from the date of passing by Council and shall come into force in accordance with Section 34 of the Planning Act R.S.O 1990.

Schedule "A"