Mayvern Area Residents Association v. Richmond Hill (City), 2021 CanLII 105799

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 22, 2021

CASE NO(S).:

PL210189

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

Appellant:

Mayvern Area Residents Association

Applicant:

Hossein Khajehei

Subject:

Minor Variance

Variance from By-law No.:

3-74, as amended

Property Address/Description:

27 Mayvern Crescent

Municipality:

City of Richmond Hill

Municipal File No.:

A005/21

OLT Case No.:

PL210189

OLT File No.:

PL210189

OLT Case Name:

Mayvern Area Residents Association v. Richmond Hill (City)

Heard:

September 3, 2021 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

Mayvern Area Residents Association

Pat Pollock

Hossein Khajehei

Jeffrey Streisfield*

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on September 3, 2021 to consider the appeal by Mayvern Area Residents Association (“Appellant”) of 27 Mayvern Crescent of the decision of the City of Richmond Hill (“City”) Committee of Adjustment (“COA”) made on March 4, 2021 to authorize the minor variances to Zoning By-law No. 3-74, as amended (“ZBL”) sought by the Hossein Khajehei (“Applicant”) under s. 45 of the Planning Act, R.S.O. 1990 c. P.13 (“Act”).

2The proposed development is a two-storey single detached house with a rear deck and a rear yard patio. The statistics for the proposed development are as follows.

First Floor Area

183.78 square metres (“m²”) (1,978.20 square feet (“ft²”))

Second Floor Area

179.30 m² (1930.30 ft²)

Total Area

363.11 m² (3908.50 ft²)

Height

10.77 metres (“m”) 34 feet (“ft”)

East Side Yard Setback

1.52 m (5 ft)

West Side Yard Setback

1.52 m (5 ft)

Rear Yard Setback

10.11 m (33.2 ft)

3In order to facilitate the proposed development, a minor variance application had been submitted requesting relief from the requirements of the ZBL listed herein:

27 Mayvern Crescent (Subject Property)

By-Law Requirement

Proposed

Difference

Maximum Lot Coverage

30.00%

31.70%

1.70%

Minimum Rear Yard Setback

10.67 m (35.00 ft)

10.11 m (33.16 ft)

0.56 m (1.83 ft)

Minimum Side Yard Setback – East

2.44 m (8.00 ft)

1.52 m (4.98 ft)

0.92 m (3.01 ft)

Minimum Side Yard Setback – West

2.44 m (8.00 ft)

1.52 m (4.98 ft)

0.92 m (3.01 ft)

4The City’s Planning Staff’s recommended the application be approved. The COA approved the variances application on March 4, 2021 subject to conditions.

EVIDENCE AND SUBMISSIONS

5The Tribunal heard opinion evidence from one witness: Michael Manett, a planner with the firm MPLAN Inc. on behalf of the Applicant. Mr. Manett was qualified with no objections and affirmed to provide evidence in the area of land use planning. The Applicant submitted a document book and it was marked as Exhibit 1 for the record.

6The Tribunal heard that the Appellant would not be calling any witness.

7Cheryl Kong who resides at 29 Mayvern Crescent immediately adjoining the subject property, sought Party status. There were no objections from all parties. The Tribunal granted Ms. Kong Party status.

8Gary Zikovitz sought Party status at the hearing. The Tribunal heard that Mr. Zikovitz would not be providing any expert evidence. The Tribunal denied his request for Party status but would review his statement.

PLANNING EVIDENCE

9The Tribunal must also consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, and whether they are consistent with the Provincial Policy Statement, 2020 (the “PPS”).

10Mr. Manett informed the Tribunal that the central focus of his evidence relates to the appropriateness of the variances on the street character.

11The Appellant focused solely on the impact sought from the relief of the minor variance.

ANALYSIS

The Applicant’s Position

Existing Site and Building

12Mr. Manett informed the Tribunal that the Site is municipally known as 27 Mayvern Crescent in the City, which is located on the south side of Mayvern Crescent, northeast of Bathurst Street and Carrville Road.

13The Tribunal heard there is currently a derelict split-level detached dwelling on the Site, which is to be demolished to accommodate the proposed development. The property has a 15.24 m (50 ft) frontage, a depth of 37.94 m on the west side of the property and 36.70 m on the east side of the property, with a total lot area of 568.5 m² (6,124.82 ft²).

14The zoning classification for the property is Residential Second Density Zone (R2).

Study Area – Geographic Neighbourhood

15The Tribunal heard from Mr. Manett that the neighbourhood is characterized by single detached houses with newer dwellings often being larger and covering more of the lot area. This assessment of the neighbourhood is shared by the City according to the Staff Report which supported this development.

16The Tribunal was informed that a Staff Report dated March 4, 2021 described the subject property as being adjacent to:

existing single detached dwellings residential uses to the north, south, east and west.

17Further, the Tribunal learned that the report described the broader neighbourhood as:

a relatively stable community comprised by varied dwelling sizes, but with similar styles as they were part of a greenfield subdivision development constructed in the mid-1970's.

18The Tribunal heard that the types of dwellings in the neighbourhood remain largely single detached, but the Staff Report states that there have recently been more minor variances allowing for dwellings with increased lot coverages and reduced yards. Recent developments at 16 Sanderson Crescent, 18 Mayvern Crescent, and 91 Mayvern Crescent all required minor variance applications to permit larger dwellings with increased lot coverages and reduced yards.

19The Tribunal learned that the property at 16 Sanderson Crescent is located approximately 35 m from the subject property, measured from property line to property line, and approximately 200 m walking distance. The development required variances from the same by-law as 27 Mayvern Crescent, as well as an additional variance. All required significantly greater variances from the by-law than 27 Mayvern Crescent and were approved.

20The chart below shows all the variances requested at 16 Sanderson Crescent with the difference between proposed variances and by-law requirements for both 16 Sanderson Crescent and 27 Mayvern Crescent for comparison.

21The application for 27 Mayvern Crescent is proposing greater side yard variances than 16 Sanderson Crescent, but taken together the variances approved for 16 Sanderson Crescent allow for a property that occupies more of the lot than the proposed development at 27 Mayvern Crescent.

16 Sanderson Crescent

By-Law Requirement

Proposed

Difference

Difference (27 Mayvern)

Maximum Lot Coverage

30.00%

35.10%

5.10%

1.70%

Minimum Front Yard Setback

8.70 m (28.54 ft)

6.10 m (20.01 ft)

2.60 m (8.53 ft)

Minimum Rear Yard Setback

10.67 m (35.00 ft)

8.38 m (27.49 ft)

2.29 m (7.51ft)

0.56 m (1.83 ft.)

Minimum Side Yard Setback – East

1.83 m (6.00 ft)

1.51 m (4.95 ft)

0.32 m (1.05 ft)

0.92 m (3.01 ft.)

Minimum Side Yard Setback – West

1.83 m (6.00 ft)

1.51 m (4.95 ft)

0.32 m (1.05 ft)

0.92 m (3.01 ft.)

22The Tribunal heard that 18 Mayvern Crescent is located on the north side of Mayvern Crescent, approximately 75 m walking distance away from the subject property. The property was granted a severance and the two properties created by the severance were each granted three variances. Both properties were granted lot coverage variances greater than what is being requested for the proposed development. The subject application is not requesting minimum lot area and frontage variances as 18 Mayvern Crescent did.

23The Tribunal was informed that the approved variances demonstrate that the neighbourhood is evolving over time through transition and reinvestment.

18 Mayvern Crescent (Minor Variance Applications A028/20 and A029/20)

By-Law Requirement

Proposed

Difference

Difference (27 Mayvern)

Minimum Lot Area

464.51m² (5,000 ft²)

445.93 m² (4,799.95 ft²)

18.58 m² (199.99 ft²)

Not Applicable

Minimum Lot Frontage

15.24 m (50.00 ft)

12.19 m (39.99 ft)

3.05 m (10.00 ft)

Not Applicable

Maximum Lot Coverage

30.00%

34.00%

4.00%

1.70%

24The Tribunal was further informed that 91 Mayvern Crescent is located approximately 500 m away from the subject property travelling north on Mayvern Crescent. The Applicant included three of the same variances as the subject application, as well as a front yard setback variance, and all were approved. While the side yard setbacks requested for the subject property are 0.60 m larger, the application for 91 Mayvern Crescent was approved for variances that will allow for a property development that is larger and occupies more of the lot.

91 Mayvern Crescent

By-Law Requirement

Proposed

Difference

Difference (27 Mayvern)

Maximum Lot Coverage

30.00%

35.90%

5.90%

1.70%

Minimum Side Yard Setback – East

1.83 m (6.00 ft)

1.51 m (4.95 ft)

0.32 m (1.04 ft)

0.92 m (3.01 ft.)

Minimum Side Yard Setback – West

1.83 m (6.00 ft)

1.51 m (4.95 ft)

0.32 m (1.04 ft)

0.92 m (3.01 ft.)

Front Yard Setback (Est. Bldg. Line)

10.44 m (34.25 ft)

7.72 m (25.32 ft)

2.72 m (8.93 ft)

Not Applicable

25Mr. Manett informed the Tribunal that recent COA decisions is consistent with his assessment of the neighbourhood and the description of the neighborhood by the City’s Staff Report.

26The neighbourhood is characterized by one and two-storey single detached homes and it is not uncommon for newer homes to have reduced yards and increased lot coverages, as permitted by the minor variance.

27Mr. Manett stated that the COA decisions reflect that three properties in the near neighbourhood have been approved for variances similar to those requested by the subject application.

28Mr. Manett further stated that the approvals sought were all with greater variance from the ZBL requirements, allowing for developments that cover more of the lot area than requested by the subject property.

29Mr. Manett informed the Tribunal of the several concerns that were raised by neighbours in the community regarding the Application, the Official Plan and the Zoning By-law.

30The Tribunal heard that the submissions often refer to the proposed development being three-storeys or being of excessive height. The proposed development is two-storeys, not three-storeys, and is consistent with the existing neighbourhood which has many other two-storey houses. The proposed dwelling would be below the maximum height permitted in the ZBL and no height variance is required. Submissions also claim that the variances requested in this Application are substantially larger than anything previously requested or that other redeveloped properties did not require variances. As demonstrated in the analysis above, lot coverage or setback variances have been requested before and many variances exceeded those being requested by this Application.

31Mr. Manett informed the Tribunal that regarding the Official Plan, it is important to understand that the requirement for compatibility does not mean new development must be identical to existing development.

32A development’s built form can be different from the houses that were built in the 1970s, yet remain compatible with the neighbourhood, as determine by the criteria under policy 4.9.2.4. Similarly, regarding the ZBL, the subject property is zoned R2, which is for single detached dwellings. The proposed development is a single detached dwelling and more consistent with modern building styles, which is permitted by the ZBL.

33The Proposal meets the requirements of the ZBL, except for two by-law regulations, so the applicant has requested minor variances, as is provided for by the Act.

34Mr. Manett opined that the variances requested at 27 Mayvern Crescent are consistent with previously approved variances in the neighbourhood and would provide reinvestment in the community with a modern upgraded dwelling that is harmonious with the existing neighbourhood.

The Appellant’s Position

35Through her testimony, Ms. Pollack, representative for the Appellant, informed the Tribunal of the Appellant’s concerns being;

• The new structure creates a jarring architectural contrast to surrounding homes and thus destroys the integrity of the streetscape.
• The size, height, design and closer proximity to abutting properties blocks the sunlight from front and back yards and destroys privacy, thus compromising enjoyment of the homes by surrounding residents.
• New builds result in the loss of mature trees which grace yards, front and back, decreasing the quality of the streetscape. The Appellant can assure the Applicant that replacing them with saplings after construction does not compensate for the privacy and aesthetic pleasure lost by removing existing trees.
• Residential Project Guidelines are not being followed. They include potentially dangerous conditions such as: a. untraversable sidewalks due to deliveries, electrical cords and slippery mud, forcing pedestrians to use the road; b. open/unlocked gates which invite the curious to enter the construction site; c. vehicles parking on both sides of the road which impedes sightlines for current residents exiting their driveways; d. interrupted phone service upon which seniors rely for medical alert systems and cable service which interrupts the ability of those to work from home.
• The construction process alone (which in the case of 91 Mayvern Crescent took over two years) results in the reduction of the property values of existing neighbouring homes. This has been documented in the area.
• The new builds decrease the availability of affordable housing in the community. When an established house selling for let say $1.2 million is demolished and replaced by a larger one selling for $2.5 to 2.9 million (thus far), that larger house is much less affordable. Consequently, a more affordable housing option is being removed.
• These types of builds have an environmental impact and represent poor use of resources. The waste from demolished houses is not recycled but put in the dump. In contrast, by renovating or upgrading or even adding an addition, the basic house is reused and adjusted to suit the family. These options mean that resources are saved and the affordability and the character of the neighbourhood are retained.

Cross-Examination

36Under cross-examination,

• Mr. Manett was asked by Ms. Pollock about his statement that the subject home and the property were derelict and what did the term derelict mean?
  • Mr. Manett responded by informing the Tribunal that the home is in an unhabitable state and that the home was to be demolished.
  • Ms. Pollack rebutted and opined that the home does not have to be demolished.
• Ms. Kong stated to Mr. Manett that the proposed development’s site lines seem to be encroaching on two-thirds of her privacy on her property by the scale and height of the proposed new build.
  • Mr. Manett informed the Tribunal that there are three very small windows proposed facing Ms. Kong’s property and that no privacy issues would arise.
• Under redirect by Mr. Streisfield, counsel for the Applicant, asked Mr. Manett if the windows cause any concerns for overlook into Ms. Kong’s property.
  • Mr. Manett informed the Tribunal that he had “no concerns whatsoever. The windows are quite small and the side yard setback of an additional three feet has no relevance on the overlook concerns”.

Provincial Policy Statement, 2020

37Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS.

38The Tribunal learned that through the Official Plan, the City has identified the types of development that may occur in a Neighbourhood designation, subject to criteria contained in the Official Plan policies.

Growth Plan for the Greater Golden Horseshoe 2019

39Section 3(5) of the Act directs that a decision of this Tribunal with respect to any planning matter shall conform and not conflict with the relevant policies of the Growth Plan. The Official Plans of municipalities and regions in the Greater Golden Horseshoe Growth Plan area must also conform to the Growth Plan.

40Mr. Manett informed the Tribunal that the Proposal is an example of development that is compatible in a Neighbourhood designation including proposed revisions that include increased density targets.

41Mr. Manett opined that the Proposal is consistent with the PPS and conforms and does not conflict with the relevant policies of the Growth Plan

LEGISLATIVE TESTS

42The Tribunal’s authority to grant 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. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant, notwithstanding that the COA authorized the variances. The tests require that the variances:

a. Maintain the general intent and purpose of the Official Plan;

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.

Maintains the General Purpose and Intent of City’s Official Plan

43The Tribunal heard that the subject property is designated Neighbourhood on the City Official Plan Land Use Schedule.

44The land use policies for the Neighbourhood areas in the City Official Plan require that development within a neighborhood be compatible with character of the adjacent and surrounding area, as determined by the five criteria outlined in policy 4.9.2.4.

45Mr. Manett opined the proposed development meets all five criteria and is compatible with the adjacent and surrounding area.

Development shall be compatible with the existing character of adjacent and surrounding areas with respect to the following;…

1. Predominant building forms and type

46The Tribunal heard the form and type of development proposed is consistent with the predominant built form and type on adjacent properties and in the surrounding area. The Proposal is for a single detached house, which is the same type of building currently on the property and the most common type of building found on adjacent properties and throughout the neighbourhood. The built form of a two-storey single detached house will remain consistent with the predominant built form throughout the neighbourhood.

2. Massing

47The Tribunal heard the lot coverage variance will allow for 1.70% (which is truly minor) additional lot coverage on the property and will result in a building that is compatible with the massing in the neighbourhood. Based on the neighbourhood analysis, variances of this nature have been approved in the adjacent and surrounding neighbourhood and will allow for a building that is compatible with the massing of existing buildings in the adjacent and surrounding neighbourhood.

3. General patterns of streets, blocks, lots and lanes

48The Tribunal was informed the proposed development will not impact the general patterns of streets, block, and lanes in the neighbourhood as no change is proposed.

4. Landscaped areas and treatments

49The Tribunal heard the proposed development, resulting from the requested variances, will be compatible with the landscaped areas and treatments in the adjacent and surrounding neighbourhood. The side yard setback variances will reduce space available along the sides of the property, but there will remain 1.52 m (4.98 ft) of space between the dwelling and property line on each side, which are still substantial. The rear yard setback will reduce the yard space available on the property, but again, is still substantial and the variance is only 0.56 m, which is minor and is less than similar variances approved for 16 Sanderson Crescent and 91 Mayvern Crescent. Based on the neighbourhood analysis, approval of these variances would allow for a development that is compatible with the existing neighbourhood character.

5. General pattern of yard setbacks

50The Tribunal heard that based on a neighbourhood analysis, both the side and the rear yard setbacks requested are consistent with the general pattern of yard setbacks in the neighbourhood and are compatible with the existing character in the adjacent and surrounding neighbourhood. The east and west side yard setbacks are 1.52 m (5 ft). The variances for side yard setback represents a 0.92 m difference from the ZBL and would still provide enough space for passage from the front to the rear of the property, are consistent with modern building styles, and remain consistent with the general pattern of yard setbacks. The rear yard setback variance is only a 0.56 m variance in what would be a 10.11 m (33.16 ft) rear yard space.

51Mr. Mannet opined that the impact would be minimal, neighbours' privacy would not be affected, and the property would remain consistent with the general pattern of yard setbacks in the neighbourhood. Similar variances were approved in the neighbourhood at 16 Sanderson Crescent and 91 Mayvern Crescent and therefore, the variances requested maintain the general intent and purpose of the City Official Plan.

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

52The Tribunal heard the property is zoned Residential Second Density Zone (R2) under the City’s ZBL The property requires four variances from the ZBL. Individually and when considered collectively, these variances will allow for a development that maintains the general intent and purpose of the ZBL.

1. The first variance requested is related to minimum side yard setback to the east. The City’s ZBL requires a minimum side yard setback of 2.44 m (8.00 ft) to the east. The proposed development will have a minimum side yard setback to the east of 1.52 m (4.98 ft), which is quite reasonable by modern standards.

53Mr. Mannet opined that through his neighbourhood analysis, small side yard setbacks have been approved in the neighbourhood. The variance requested for the subject property will maintain adequate space between houses, and will provide a setback consistent with modern building environments.

54Mr. Mannet opined, the proposed side yards maintain the general intent and purpose of the ZBL.

2. The second variance requested is related to minimum side yard setback to the west. The City’s ZBL requires a minimum side yard setback of 2.44 m (8.00 ft) to the west. The proposed development will have a minimum side yard setback to the east of 1.52 m (4.98 ft) which is quite reasonable by modern standards.

55Mr. Mannet opined that through his neighbourhood analysis, small side yard setbacks have been approved in the neighbourhood. The variance requested for the subject property will maintain adequate space between houses, and will provide a setback consistent with modern building environments.

56Mr. Mannet also opined the proposed side yards maintain the general intent and purpose of the ZBL.

3. The third variance requested is related to minimum rear yard setback. The City’s ZBL requires a minimum rear yard setback of 10.67 m (35.00 ft). The proposed development will have a minimum rear yard setback of 10.11 m (33.16 ft), which is a variance of 0.56 m (1.83 ft).

57Mr. Mannet opined that through his neighbourhood analysis, a much larger rear yard setback variance was approved for 16 Sanderson Crescent. The Proposal will maintain a rear yard size consistent with the rest of the neighbourhood, and have no adverse impact on neighbouring properties.

58Mr. Mannet also opined the requested variance maintains the general intent and purpose of the ZBL.

4. The fourth variance requested is related to maximum lot coverage. The City’s ZBL requires maximum lot coverage of 30.00%. The proposed development will have maximum lot coverage of 31.70%, which is a difference of 1.70%.

59Mr. Mannet opined that through his neighbourhood analysis, much larger lot coverage variances have been approved in the neighbourhood.

60Mr. Mannet also opined the variance requested is minimal and maintains the general intent and purpose of the ZBL.

Desirable for the Appropriate Development of the Lands

61The Tribunal heard the proposed dwelling has been designed with a massing that fits comfortably on the lot while providing appropriate setbacks and amenity space on the site, compatible with adjacent properties and harmonious with the neighbourhood.

62Mr. Mannet opined the variances required are minimal and much greater variances from the same by-law have been approved at 16 Sanderson Crescent, 91 Mayvern Crescent, and 18 Mayvern Crescent. The proposed development will be a two-storey detached dwelling consistent with modern building styles, which will be compatible with the adjacent properties and harmonious with the neighbourhood.

63The Tribunal heard the proposed development represents reinvestment in the neighbourhood enhancing its overall stability.

64Mr. Mannet opined that the subject application is desirable and appropriate for the development or use of this property.

Minor in Nature

65The Tribunal heard the proposed development requires four variances from the ZBL, which are all minimal. The variances will result in a development that is compatible with adjacent and surrounding properties and the existing character of the neighbourhood and will have no adverse impact on adjacent properties or the neighbourhood.

66Mr. Mannet opined that the proposed variances are minor.

FINDINGS

67The Tribunal accepts Mr. Mannet’s evidence and finds that the minor variances have appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan.

68The Tribunal finds the requested variance meets the four test of s. 45(1) of the Act and:

a. the general intent and purpose of the Official Plan is maintained;

b. the general intent and purpose of the Zoning By-law is maintained;

c. the variance is considered desirable for the appropriate development of the land; and

d. the variance is minor in nature.

ORDER

69THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By- law No. 3-74 are authorized subject to the following conditions

a. That the variances pertain only to the request as submitted with the Application.

b. That development be substantially in accordance with the sketch submitted with the Application as required by Ontario Regulation 200/96, as amended, Section 5.25.

“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.