Local Planning Appeal Tribunal
Tribunal d’appel de l’aménagement local
ISSUE DATE: November 08, 2021
CASE NO(S).: PL210271
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Khandokar Ahamed
Subject: Minor Variance
Variance from By-law No.: 150-85
Property Address/Description: 219 Hardcastle Drive
Municipality: City of Cambridge
Municipal File No.: A14/21
LPAT Case No.: PL210271
LPAT File No.: PL210271
LPAT Case Name: Ahamed v. Cambridge (City)
Heard: September 14, 2021 by video hearing
APPEARANCES:
Parties
Representative
Munajj Khandokar Ahamed
Self-represented
DECISION DELIVERED BY M.A. SILLS AND ORDER OF THE TRIBUNAL
1The was the hearing of the appeal by Khandokar Ahamed Munajj (“Applicant”) from the decision of the City of Cambridge (“City”) Committee of Adjustment (“COA”) to refuse his application for minor variances for the property located at 219 Hardcastle Drive (“subject property”).
2The Applicant proposes to create a one-bedroom secondary dwelling unit in the basement of his existing home and requires approval for the following:
to permit a reduced lot area of 305 square meters (“sq m”), whereas a minimum lot area of 450 sq m is required; and
to permit a minimum lot frontage of 8.9 metre (“m”), whereas a minimum lot frontage of 11 m is required.
3The subject property is designated Low/Medium Density by the City’s Official Plan (“COP”) and is zoned Residential 6 (R6) by comprehensive Zoning By-law No. 150-85 (“ZBL”), as amended. The COP permits secondary dwelling units on all residentially zoned lands in the City.
4The ZBL permits a secondary dwelling unit as part of a primary dwelling or in an accessory building subject to regulations regarding lot sizes, lot frontage and parking (Schedule A). Section 1.1.1. of Schedule A provides the following definition:
Secondary dwelling unit, also known as a secondary suite or secondary residential unit: a separate dwelling unit containing bathroom and kitchen facilities that is subordinate to a legally existing residential structure
5Staff of the City Development Planning Section provided a detailed report to the COA to support the staff recommendation that the application be approved, subject to the proviso that the secondary dwelling unit be substantially in keeping with the plans submitted, and that it be limited to one bedroom.
6In that same report, staff confirmed the requisite two parking spaces (tandem parking is permitted) will be accommodated on the property and the required interior side yard setback (1.2 m) and all other secondary dwelling unit zoning standards are being met.
7The COA provided the following reasons for refusing the application:
“The Committee considered staff’s recommendations, and the Applicant’s oral comments and delegate comments in relation to the application. The application is refused, as the Committee is of the opinion that the request to have an accessory unit with a lot of only 305 m2 is not considered minor as it does not provide enough area for an accessory dwelling unit and does not meet three of the four tests. Accessory unit standards were intended for ordinary houses and the Committee is of the opinion that the R6 zone is a higher density zone which already provides large houses on small lots and therefore is already too tight for accessory units and will add more congestion on the streets.(emphasis added)
Requests for Party and Participant Status
8The Tribunal received a Party Status Request Form (“Request Form”) from Andrew Schito in advance of the hearing. Mr. Schito indicated on the Request Form that he lives down the street in this subdivision and “would like to participate in the hearing as a non-appellant party in order to uphold the original decision from the city (sic) of Cambridge”. Mr. Schito indicated in an email to the Tribunal Case Coordinator that he was requesting party status because he wanted to express his opposition to the application verbally.
9Mr. Schito’s name does not appear on the City’s Notice of Application List of property owners within 60 m of the subject property, nor is he recorded in the Minutes of the COA meeting as a deputation. Mr. Schito was added to the Tribunal’s Notice of Hearing List at his request.
10The Tribunal is not satisfied by either the information contained in the Party Status Request Form or the remarks made by Mr. Schito at the hearing that party status is either necessary or warranted. In the first instance, the decision of the COA is voided by the appeal and the decision on the minor variance application is now the domain of the Tribunal. The Tribunal will determine this application on the merits of the land planning evidence that is presented at the hearing.
11More directly, a party has certain obligations and duties that go beyond simply identifying issues and/or voicing concerns – that more appropriately is the purpose of Participant status. A party on the other hand, is expected to substantiate the issues it introduces with land use planning evidence, and those issues must have a direct correlation to the nature of the relief being sought by the variances.
12Mr. Schito has not identified any legitimate land use planning issues in the Request for Status Form; he is not a land use planner and he is not calling any witnesses.
13Alternatively, the Tribunal agreed to grant Mr. Schito Participant status and allow him to submit a brief written outline of his concerns as they relate to the minor variances being sought, with the proviso that he provides same to the Tribunal and the Appellant by no later than September 16, 2021. Thereafter, the Applicant will be given two business days (September 21, 2021) to respond if he elects to do so. Both Mr. Schito and the Applicant provided their written submission within the allotted time.
14The Tribunal received a joint Participant Status Request Form and Statement from Dianne Cochran and Gary Viveiros in advance of the hearing. Ms. Cochran and Mr. Viveiros own the property abutting the subject property (215 Hardcastle Drive) and appeared as a delegation at the COA meeting. Participant status was granted.
15Participant Status Request Forms and Statements were also received from: 1) Lucilia Morais, 2) Laurie Grosz, 3) Joe Moreira, 4) Khamphone Galang, and 5) Chris Savoy. In each case, the listed concerns generally related to traffic congestion and parking issues in the subdivision.
16None of these names appear on the City’s Notice of Application circulation list or are identified in the Minutes of the COA meeting, and none of these individuals attended the hearing. Participant status was not granted.
Concerns of the Participants
17Ms. Cochrane and Mr. Viveiros are opposed to the application. Their position is that the subject property is too small and does not provide enough area for an accessory dwelling unit. In their view, the R6 Zone contains large houses on small lots and is already ‘too tight for adding accessory zones’.
18Their specific concerns are traffic and parking; outdoor storage of refuse bins; the increased potential for a house fire resulting from a second kitchen in the basement of the home; devaluation of their property; and the type of dwellers that will occupy the accessory unit. In regard to the proposed side-yard entranceway, they maintain that if a landing is required people entering and existing the secondary dwelling unit will be stepping onto their property.
19Mr. Schito is primarily concerned about increased traffic and added strain on the limited parking resources in the subdivision. He referred to a recently completed traffic study which concluded there is a larger than usual traffic volume and excessive speeds being experienced in the subdivision. The report has resulted in traffic calming measures being put in place to control speeding and traffic flow.
20Mr. Schito claims that parking is also a major issue in the neighbourhood. While he does acknowledge that the required parking spaces (2) are being provided on the subject property, he submits that the Appellant routinely parks on the green space of his property or on the street for extended periods of time in contravention of local by-laws.
21On that point, he asserts the Appellant and/or his tenant will either continue to park on the greenspace of the property so that they don’t have to constantly move cars in and out, or they will park on the street.
22In his view, parking on the greenspace detracts from the aesthetic of the home and façade, and a basement apartment and the addition of more people with vehicles will only exacerbate the traffic and parking problems in the subdivision.
23Mr. Schito claims there have been multiple applications for basement dwellings in this subdivision that have been denied by the COA. He contends that while other similar applications were approved in the past, since the completion of traffic studies and once the COA was made aware of the traffic and parking concerns in this neighbourhood, it has denied any further minor variances for secondary dwelling units. In refusing these applications the COA cited growing concerns with infrastructure, traffic and parking resulting from increased density in the neighbourhood.
24Mr. Schito maintains that in making its decision on the application the COA specifically factored in the traffic volume and travelling speed on the roads leading into the subdivision, also noting that there is only one main access for residents and emergency vehicles to this large subdivision. Hardcastle Drive is the longest road through the subdivision and the recent traffic study concluded there is a larger than normal traffic volume and incidents of excessive travelling speeds through this neighbourhood. In his opinion, allowing this application will entice other property owners to bring similar applications forward, resulting in more traffic volume on streets that were not designed to handle this degree of traffic.
25Lastly, Mr. Schito maintains the application is not in keeping with what he referred to as the ‘official plan of the subdivision’ which prohibited secondary dwellings. He claims the original owners of homes in this neighbourhood had to sign an agreement to only use the property as a single-family home in accordance with by-laws. He, as an owner who purchased a home under these conditions, feels it is unfair to allow new residents, such as the Applicant who purchased his property in May 2021, to disregard the original intent of the subdivision.
26On a final point, Mr. Schito pointed out that if he had been granted party status, he would have been made aware that someone from the City was planning to provide a witness statement and he would have liked to have asked that witness if she was aware of the ongoing issues in this subdivisions, etc. In his view, it appears that his concern and those of other residents are being dismissed for the benefit of one individual.
Submissions by the Applicant
27The Applicant provided the Tribunal with a copy of his complete presentation to the COA in support the application. Among other things, this document contains site plan drawings, photos of the existing home, an aerial photo of properties within 30 m of the subject property, and a summary of the comments of neighbours within 30 m of his property that he personally contacted about the proposal. Notably, of the ten property owners that he contacted, only two expressed opposition to the application (215 and 223 Hardcastle Drive). Emails of support were provided by some of the others.
28City staff have conducted a thorough review of the proposal and recommended that the application be approved. He prepared and provided a detailed presentation that addresses the questions and concerns raised by the neighbours about the proposal, but still his application was refused by the COA and “no one has told him why”.
Planning Evidence
29Rachel Greene is a Candidate Member of the Ontario Professional Planners Institute and is currently employed as a Senior Planner in the City’s Development Planning Section. She prepared the City planning report on the application and is appearing under summons by the Applicant.
30Ms. Greene confirmed that the intent of the minimum lot area and frontage zoning provisions is to ensure the property has sufficient amenity space, open space landscaping, and parking for both units. The subject property meets the minimum landscaped open space requirement for the entire lot and the front yard has sufficient amenity space for both the primary residence and the proposed secondary dwelling unit. The existing and requisite 45% front yard landscaped open space area is being fully maintained. In her opinion, the lot reduction variance will not have a negative impact on the occupants of the dwelling.
31Ms. Greene noted that after consulting with the City’s Building Division, it is understood that based on the property dimensions provided with the application a landing is not necessary for the side-yard entranceway, and as such, the required 1.2 m interior side yard setback is met. However, she added that if it is later determined through the building permit review process that the side yard dimensions as set out in the plans provided by the Appellant are found to be inaccurate and a landing is in fact required, either the entranceway will have to be relocated or another minor variance application will have to be submitted. The Applicant is aware of this.
32From a planning policy perspective, Ms. Greene stated that the provision of accessory residential units is one measure that can be utilized to increase affordable rental housing stock within the City. The need to allow this type of unit is recognized in Provincial policy as well as the COP and the Region of Waterloo (“Region”) Official Plan (“ROP”).
33The COP encourages a range and mix of housing types that are affordable and safe. Secondary dwelling units can be established where appropriate parking requirements can be accommodated; where the accessory unit is subordinate to the main dwelling; and where the accessory dwelling is compatible with the existing neighbourhood. It is her opinion that the proposal meets the intent of the COP. The Region did not comment on the application.
34Turning to the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”), Ms. Greene pointed out one of the guiding principles of the GP is to support a range of housing options, including additional residential units, to serve all sizes, incomes, and ages of households. Many of the metropolitan regions within the Greater Golden Horseshoe are currently facing issues with respect to housing affordability, which are being primarily driven by sustained population growth and factors such as the lack of housing supply, and the resulting record low vacancy rates.
35The GP focuses more particularly on higher density options that can accommodate a range of household sizes in locations that can provide access to transit and other amenities. In her opinion, the proposal meets the policy intent of the GP.
36Ms. Greene concurs with the recommendation that the application be approved subject to the accessory unit be substantially in keeping with the plans submitted with the minor variance application, and that it be limited to one bedroom.
Analysis and Disposition
37In arriving at this decision, the Tribunal has reviewed the Tribunal’s file records, considered the planning report and evidence of Ms. Greene, and has had due regard to the concerns identified in the Participant Statements and the decision of the COA and the information and material before the COA in accordance with s. 2.1 of the Planning Act.
38Conclusively, the Tribunal has been satisfied by the presentation materials provided by the Appellant and the planning evidence of Ms. Greene that the criteria established in s. 45(1) of the Planning Act is being met. The addition of the proposed secondary unit within the existing dwelling is a desirable and appropriate use of the property and represents good land use planning.
39The proposal is consistent with the directives of the higher order Provincial planning policy regime and implements the housing supply and affordability policies of the COP. The relief being sought by the variances is minor and technical in nature and will not result in the creation of unacceptable adverse impacts to neighbouring property owners or the subdivision on whole.
40The Tribunal finds that the general intent and purpose of the COP and the ZBL is being appropriately maintained. The proposed secondary dwelling unit is a permitted use in the R-6 Zone and the variances will permit the creation of an affordable rental housing option within an existing dwelling.
41The Tribunal finds the variances are technical and minor in nature. The lot frontage and lot area are pre-existing conditions. The secondary dwelling unit is wholly contained within the existing dwelling, and except for the installation of a side door entrance to the home, the floor plate and appearance of the exterior of the dwelling will not change. The purpose and effect of the variances is essentially to regularize the existing dimensions of the property in order to allow a secondary dwelling unit in the basement of the existing home.
42The side yard setback adjacent to the proposed new entranceway meets the requisite zoning standard (1.2 m) and a side-yard entranceway is a commonly permitted feature of a residential dwelling. The front yard greenspace requirement is being met and the two requisite parking spaces are being accommodated on the property.
43The Tribunal finds that the proposed variances do not result in the creation of unacceptable adverse impacts. The concerns about traffic volume, driver behavior as it relates to safety and travelling speeds, and the sufficiency of parking within the overall subdivision have no direct correlation to the variances that are the subject of this application.
44Moreover, traffic studies have been conducted, traffic calming measures have been put in place and are being monitored, and seasonal on-street parking areas have been designated. Traffic violations and parking infractions are the responsibility of law enforcement officers and/or municipal by-law enforcement officials.
45In regard to the concern about the increased potential of a house fire occurring as a result of the second kitchen in the basement of the home, the Fire Department reviewed the application and did not identify any undue fire risks associated with the proposal. A building permit will have to be obtained and the construction of the accessory dwelling unit is subject to the Ontario Building Code.
46Property values and the use of a dwelling for rental income is not a matter that the Tribunal can consider in the determination of a planning application, and the Tribunal does not ‘zone people’.
47The Tribunal is also of the view that the apparent misconceptions about the authority for the approval of secondary dwelling units needs to be addressed.
48Section 16 (3)(a) of the Planning Act requires that a municipal official plan contain policies that authorize the use of additional residential units in a detached house, semi-detached house, and rowhouses where an accessory building or structure does not contain a second unit.
49Section 35.1 of the Planning Act requires that a municipality ensure that its ZBL gives effect to the secondary unit polices established by an OP. The secondary unit policies established in an OP and its implementing ZBL can only be appealed by the Minister of Municipal Affairs and Housing.
50Section 1.4.3 of the Provincial Policy Statement, directs municipalities to permit all forms of housing to provide an appropriate range and mix of housing types and densities, including secondary units.
51The COP permits secondary dwelling units in all residential zones within the City, including the R6 Zone. Schedule ‘A’ of the ZBL establishes the zoning provisions for secondary dwelling units, and provides the following definition:
Secondary Dwelling Unit, also known as a secondary suite or secondary residential unit; a separate dwelling unit containing bathroom and kitchen facilities that is defined that is subordinate to a legally existing residential structure.
52The takeaway point here is that a COA, and the Tribunal, is bound by the planning policy directives of the Province of Ontario as implemented through the policies of the COP, both of which direct, support and encourage secondary dwelling units as a compact and affordable form of housing. The refusal of a minor variance application as a means to arbitrarily sterilize a form of residential use that is mandated by the Province and permitted in the COP, is not sustainable.
53Lastly, the Tribunal will clarify a statement contained in Mr. Schito’s Participant Statement in which he asserts that many residents he knew filed for Participant status, but that he “did not hear their testimony during the hearing”. The Notice of the Hearing, which Mr. Schito did receive, sets out in bold print – “Attendance by the requestor, or their representative, at the hearing is required for all status requests”.
54In any event, the Tribunal acknowledged at the hearing that Participant Status Request Forms were submitted by individuals as listed in paragraph 15 of this decision, and that each raised concerns about traffic and parking in the subdivision. Mr. Schito detailed the same concerns in his Participant Statement and the Tribunal responded accordingly in this decision.
ORDER
55The Tribunal orders that the appeal is allowed, and the two variances set out in paragraph 2 of this decision are authorized subject to the accessory unit be substantially in keeping with the plans submitted with the minor variance application and is limited to one bedroom.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
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.