Dickson v. King (Township), 2021 CanLII 56448

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 22, 2021

CASE NO(S).:

PL210009

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

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

Appellant:

Floyd Dickson

Applicant (jointly):

Aldo Mirigello & Luigi D’Alessandro

Subject:

Minor Variance

Variance from By-law No.:

2016-71, as amended

Property Address/Description:

29 Greenside Drive/ Plan 562, Lot 24

Municipality:

Township of King

Municipal File No.:

29-A-20

LPAT Case No.:

PL210009

LPAT File No.:

PL210009

LPAT Case Name:

Dickson v. King (Township)

Heard:

May 3, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Floyd Dickson

Sharmini Mahadevan

Aldo Mirigello and Luigi D’Alessandro

Steven Ferri Mandy Ng

Township of King

Tom Halinski

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

1Aldo Mirigello and Luigi D’Alessandro (“Applicant”), of 29 Greenside Drive (“subject property/site”) in the Township of King (“Township”) applied for relief from the provisions of Zoning By-law No. 2016-71 as amended, in order to permit the construction of a new two-storey dwelling with a cabana and pool.

2The minor variances sought are in respect of height and maximum lot coverage relief from Table 6.3 a of Zoning By-law No. 2016-71(“ZBL”) as amended:

1. To permit a maximum height of 9.5 metres on the front elevation (south).
2. To permit a maximum height of 9.35 metres on the rear elevation (north).
3. To permit a maximum height of 9.5 metres on the side elevation (west).
4. To permit a maximum height of 9.27 metres on the side elevation (east).
5. To permit a maximum lot coverage of 29.72%.

3The City’s Planning Staff’s recommended the application be approved. The Committee of Adjustment (“COA”) approved the variance application on December 2, 2020 (“approval”) subject to conditions. The Appellant, Floyd Dickson, appealed the COA’s approval.

4The subject property is approximately 2371.29 m² (“square meters”) in area and is rectangular in shape. It has a lot width of 35.04 metres (“m”) and depth of 62.75 m. The previous dwelling was on private septic services but full municipal services conversion was done around 2015. The construction of a building foundation has commenced on the property in compliance with applicable zoning.

5Steven Ferri, Applicant’s counsel called Kevin Bechard, a land use planner, as witness and he was qualified to give expert opinion evidence on land use planning. Counsel for the Township Tom Halinski called the city planner, Aloma Dreher in support of the application. Ms. Dreher was similarly qualified to give expert opinion on land use planning. The Applicant’s Document Book was marked as Exhibit 1 and the Applicant’s Visual Evidence was marked as Exhibit 2. The Appellant’s counsel Sharmini Mahadevan called Allan Ramsay, a land use planner in opposition of the application. Mr. Ramsay was qualified to give opinion evidence in land use matters. His outline evidence was marked as Exhibit 3.

THE APPLICANTS’ POSITION

Surrounding Neighbourhood and Local Area Context

6Mr. Bechard stated that the site is located in an established neighbourhood within the Nobleton Urban Area characterized by single detached dwellings on relatively large lots. The built form of the neighbourhood comprises a mix of newly constructed and older detached dwellings. He identified the “immediate neighbourhood” as lots fronting a contiguous street network including:

• Greenside Drive to the limit of St. Mary Catholic School to the north;
• Noblewood Drive; and,
• Hollywood Crescent.

7There are 57 single family lots included within the immediate neighbourhood. These lots are relatively large in size and are generally comparable with the subject lot. Of these, 8 lots, 14% (including the proposed development) visually appear to be newer construction ongoing or having been completed. The immediate neighbourhood is differentiated from the other surrounding residential lands as the subdivision to the west are characterized by relatively smaller lot sizes generally with smaller residential dwellings. The residential character of the immediate neighbourhood is variable meaning that:

1. Lots have variable width, depth and area;
2. Buildings have varied architectural styles

• 1 and 2 storey
• Peaked and mansard (flat) roofs;

3. Varied setbacks, building height, built form and massing.

8Many lots in the surrounding neighbourhood contain accessory buildings in the rear yard, as well as pools and accessory structures such as decks. Mr. Bechard views that the subject property is proposing a use that is consistent with the surrounding neighbourhood, including a dwelling, pool and accessory structures and buildings contained within the rear yard.

9He stated that the subject property is zoned R1B providing for a ‘detached dwelling’ as a permitted use. Applicable regulations provide for a Minimum Side Yard of 4.0 m. and Max. Building Height of 9.0 m. Lands within the immediate neighbourhood are also zoned R1 providing for a Minimum Side Yard of 3.6 m. and a Max building height of 11.0 m. Mr. Bechard explained that the final Site Plan submission provides for:

1. Lot Area – 2371.29 m²
2. House Area – 592 m² (25% coverage)
3. Cabana Area – 105.9 m² (4.46%)
4. No. of Storeys – Variable 1 - 2
5. Flat Roof Height – 9.5 m

10In Mr. Bechard’s opinion the application gives rise to the following matters of order of provincial interest.

(h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing, including affordable housing; (p) the appropriate location of growth and development; (r) the promotion of built form that, (i) is well designed, (ii) encourages a sense of place.

11It is his opinion that the proposed development has sufficient regard for matters of Provincial Interest set out in s. 2 of the Planning Act (“Act”).

Provincial Policy Statement (2020)

12In Mr. Bechard’s view, the following Provincial Policy Statement 2020 (PPS) Policies are applicable to the proposed development:

1.1.1 a) Promoting efficient land use patterns; 1.1.1 b) Accommodating an appropriate affordable and market-based range of housing; 1.1.3.1 Settlement Areas shall be the focus of growth and development. 1.1.3.2 Land use patterns within settlement areas shall be based on densities and a mix of land uses which: a) efficiently use land and resources 1.4.3 b) permitting and facilitating:

1. all housing options required to meet the social, health, economic and well being requirements of current and future residents …
2. all types of residential intensification …

13It is Mr. Bechard’s opinion that the proposed application is consistent with the policies of the PPS.

Growth Plan for The Greater Golden Horseshoe (2020)

14He stated that the proposed development must conform to the Growth Plan. s. 1.2.1 Guiding Principles:

• Support the achievement of complete communities that are designed to support healthy and active living and meet peoples needs for daily living throughout an entire lifetime.
• Support a range and mix of housing options, including second units and affordable housing, to serve all sizes, incomes and ages of households.

15Section 2.2.1 Managing Growth directs the majority of growth to settlement areas that have a delineated built boundary, have existing and or planned municipal water and wastewater systems, and can support complete communities. In his opinion, the proposed development is in conformity with the policies of the Growth Plan.

York Region Official Plan (ROP)

16Mr. Bechard said that s. 3.5 sets out the Region’s policies for housing based on the objective of promoting an appropriate mix and range of acceptable housing to meet residents’ needs. In particular, Policy 3.5.4 requires that, “local municipal official plans and zoning by-laws permit a mix and range of housing types, lot sizes, unit sizes, functions, tenures and levels of affordability within each community. The mix and range of housing shall be consistent with Regional forecasts, and intensification and density requirements.”

17With respect to Towns and Villages, the ROP states that: “York Region has a tradition of tightly knit villages that each have their own unique sense of place and identity, with main streets and places to work, live and play. Each Town and Village in York Region will have a role to plan in accommodating growth.” He stated that it is the objective of York Region to ensure the continued vitality of Towns and Villages.

Nobleton Community Plan, 2005 (NCP)

18Mr. Bechard explained that the Nobleton Community Plan (“NCP”) OPA No. 57 is the “in-force” planning instrument and was the only “in-force” plan at the time of the application in July 2020. Approved in 2005 for a planning horizon of 2016, the NCP can be described as a “transitional” planning document. Part I – The Preamble recognizes a pending sewage treatment servicing strategy for the community of approximately 3,150 in 1996 to accommodate 6,500 persons and provide full municipal services to the built-up portion of Nobleton. The NCP recognizes that Nobleton will “grow and evolve over the planning period”. To that end, the policies in this Plan should not be interpreted rigidly but should be applied in a flexible manner having regard to the Plan’s overall policy principles.

19He stated that s. 1.2 speaks to the implementation of development form.

This Community Plan also recognizes that the implementation of its policies will occur through a variety of planning mechanisms (e.g. Zoning By-laws, subdivision plans, site plans) as development and redevelopment occurs over time. Accordingly, the Plan provides direction as to how these planning are to be applied to new development, but does not attempt to directly regulate the form of development. For example, while the Community Plan may appropriately establish policies to encourage a wide separation between houses to maintain a sense of spaciousness, it is the Zoning By-law which should establish specific numerical regulations with respect to minimum side yard setbacks.

20Mr. Bechard stated that s. 2.2 recognizes the existing small-town character, and the desirability of providing for additional housing choices, and opportunities. The subject property is designated “Residential’ in the NCP. The main permitted uses in the Residential designation are single and semi detached dwellings; s. 3.2.3 speaks to new development in existing residential areas:

It is intended that existing residential areas within the Residential designation will retain their existing character and that no changes will be made to such areas which are not compatible with the existing character.

21Mr. Bechard said that the NCP does not promote or prescribe a “like-to-like” analysis for new development in existing residential areas.

NEW KING OP

22The Township Official Plan (“King OP”) was approved by the Region on September 24, 2020 and directs land use planning for the Township Planning Area to 2031. It is not in-force and effect and remains under appeal at the Tribunal. He stated that the King OP merits consideration as the expressed intent of Council but cannot be considered determinative. In considering s. 5.5.1, residential neighbourhood character is framed by considering elemental physical features as described through policies 5.5.3.4, 5.5.3.5, 5.5.3.6 and 5.5.3.10, including:

1. Street pattern,
2. Size and configuration of lots,
3. Existing building type, scale and massing, and,
4. Proximity to building types of varying sizes.

23Mr. Bechard said that the application does not propose any changes or alterations to the street pattern. The proposed detached dwelling will maintain a similar use and function of the previously existing dwelling and will not disrupt or alter the current street network. The application does not propose any physical changes to the existing low-density neighbourhood with respect to lotting. The 2371.29 m² lot size of the site is consistent with the surrounding lots in the Established Neighborhood designation. (Surrounding properties range in size from 1693.9 m² to 5878.9 m², with an average size of 3054.09 m²). The application contemplates the construction of a new detached dwelling on the site, which is the prevailing building type within the surrounding neighbourhood.

24In the immediate street context, the neighbouring properties located at 35 Greenside Drive and 23 Greenside Drive are both two storey detached dwellings, and the Application would create a two-storey to two-storey transition, which is a consistent condition within the surrounding development. Two-storey to one-storey, and one-storey to one-storey conditions also exist within the surrounding neighbourhood. The immediate neighbourhood has been defined as containing newly constructed replacement dwellings with increased heights and building coverages, which are now a defining characteristic of the Established Neighbourhood within which the site is located. There is a visible pattern of large, modern dwellings in the surrounding neighbourhood that take advantage of the large lot sizes while also coexisting with the older, smaller single storey dwellings. Mr. Bechard stated that the proposed application seeks to permit a similar replacement dwelling as permitted by the King OP.

25In terms of scale of the proposed dwelling, the proposed heights variance is minor and technical in nature to reflect the calculation of building height to the peak of the highest roof rather than the mid-point which is typically for a more traditional peaked roof. The height variance will not result in a noticeable increase in the scale of the dwelling. Additionally, the roof has been tiered and transitions down to one (1) storey at the rear of the dwelling which further reduces the visible scale of the building. Further, the height variance is only required for a 10.5 m portion of the front of the dwelling, to accommodate an architectural feature of the building.

26The application is consistent with similar approvals for height in the surrounding neighbourhood, including approvals for a height of 9.6 m and 9.61 m at 51 Noblewood Drive and 12 Hollywood Crescent. With respect to the massing, Mr. Bechard stated that the proposal conforms to the majority of the as-of-right zoning provisions that regulate massing. In particular, all yard setbacks are consistent with the requirements of the ZBL, which provide appropriate separation from adjacent dwellings and suggest that the proposed building is massed appropriately in relation to the site. Similarly, the proposed dwelling independently meets the permitted lot coverage for the site, which in combination with the technical nature of the height variance, suggests the proposed massing is not out of keeping with the neighbourhood. The attached garage is set back behind the main front wall, which decreases the overall mass of the dwelling and reflects a dominant characteristic of the neighbourhood. Further, a house that was constructed within the permitted as-of-right coverage and a permitted height limit could conceivably project greater massing. It is Mr. Bechard’s opinion that the proposed application will facilitate a built form that is consistent with the character of the immediate neighbourhood. In terms of scale, massing, architectural design, character, setbacks, orientation and separation distances, the dwelling maintains key features that are present in significant numbers throughout the neighbourhood.

27The application maintains the required setbacks to all properties lines as prescribed by the ZBL which ensures consistency with the surrounding neighbourhood and reduces the impact of the minor increase in building height. Additionally, this ensures that appropriate separation to existing buildings is maintained.

28Independently, the dwelling coverage and the accessory structure coverage each meet the respective requirements as set out in the ZBL. The need for a modest variance arises when calculated as a combination of dwelling and accessory structures on the lot. As such, the minor increase in overall lot coverage does not result in a built form or massing that is inappropriate for the size of the lot.

29The average lot size in the surrounding neighbourhood is approximately 3,054 m². When the as-of-right permission for 25% lot coverage is applied to the average lot size, a dwelling and accessory building with a combined coverage area of approximately 763.5 m² would be achieved, representing the average building size that would be appropriately accommodated as-of-right in the neighbourhood. Comparatively, even with the proposed variances, the proposed dwelling and cabana have a combined coverage area of 697.9 m², which is smaller than the potential average as-of-right dwelling size in the surrounding neighbourhood.

30The application will have no negative impact on the adjacent surrounding properties with regard to impact on natural heritage features, or access to the site or Greenside Drive. A landscape plan prepared by Jodi Liptrot (Tab 25 of Exhibit 1) has identified a number of landscaping features to be incorporated into the site, including hedges, large to medium size trees, and shrubs. These additional features ensure that privacy will be maintained with the adjacent homeowners and will assist in screening the new dwelling from the street and abutting properties to minimize its overall impact.

31In Mr. Bechard’s opinion, the proposed development addresses the criteria set out in Policy 5.5.3.10 as follows:

i. The proposed dwelling is limited to two storeys in height consistent with the character of the surrounding neighbourhood and in accordance with this criterion. Additionally, the proposed roof is tiered such that the rear portion of the dwelling is only one storey in height which reflects the condition of many dwellings in the immediate neighbourhood that have both 1- and 2-storey components. ii. The proposed front yard setback conforms to the zoning by-law regulations for the site. In this way, it is consistent with the character of the neighbourhood and implements the intent of the zoning by-law. iii. The proposed side yard setbacks conform to the zoning by-law regulations for this site. In this way, they are consistent with the character of the neighbourhood and implement the intent of the zoning by-law iv. The depth of the proposed dwelling has been designed to allow for a 22.92 m rear yard, which well exceeds the minimum rear yard requirement of 7.5 m as set out by the ZBL. This represents a reasonably large rear yard and in this way is consistent with the character of the neighbourhood and implements the intent of the ZBL. v. The proposed garage is positioned towards the rear of the dwelling and does not project beyond the front wall or the porch, consistent with the character of the surrounding neighbourhood and in accordance with this criterion. vi. The driveway is proposed to have a width of 5.5 m, which is in keeping with other driveway widths in the surrounding area including the abutting dwellings to the north and south.

Nobleton Zoning By-law (ZBL)

32Mr. Bechard clarified that the ZBL was adopted by Township Council on July 11, 2016. It was intended to implement the NCP. In this context applicable zoning provisions would define residential character of the proposed development. The site is zoned “Residential – Single Detached “B” (R1B)”. The R1B Zone permits detached dwellings and accessory buildings. Section 6.3 of the ZBL provides lot and building requirements for single detached dwellings in the R1B Zone and s. 3.2 provides the zoning standards for accessory buildings and structures.

33He stated that the ZBL requires a calculation that combines the coverage area of both the primary dwelling and the accessory structure. Separately, the dwelling maintains a lot coverage of 25% of the lot, and the cabana maintains a lot coverage of 4.46%, whereas 25% is the maximum permitted coverage for a dwelling, and 10% is the maximum for an accessory structure. Both structures would be permitted as-of-right as individual uses; however, a variance is required for the combined area.

34The variance to permit a 0.5 m increase to the height of the dwelling represents a minor increase to the maximum permitted height of 9.0 m. A characterization of the mansard style roof as a flat roof and an interpretation of the ZBL by City Staff resulted in the height of the building being measured to the peak of the roof, rather than to the mid-point. As a result, a technical variance is required to account for the additional height between the mid-point and the peak. Mr. Bechard added that the height of the building has been reduced along all elevations except for the 10.5 m segment along the frontage of the building. The other elevations range between 9.27 and 9.47 m to the peak of the roof. Additionally, the proposed roof design includes tiering and transitions down to one (1) storey at the rear of the dwelling, which minimizes the impact of the minor height increase.

Four Tests of Minor Variance

Desirable and Appropriate

35He maintains that the proposed dwelling respects and maintains the character of the neighbourhood and is in keeping with direction of the Official Plan, which acknowledges the need for some redevelopment in existing neighbourhoods to support their vitality and regeneration. There is no evidence that the proposal will destabilize the community given that it reflects the residential character defined through the ZBL. Further, the proposed development prevailing building type does not alter the lotting fabric or street patterns in any way. There is a visible pattern of large, modern dwellings in the surrounding neighbourhood that take advantage of the large lot sizes while also coexisting with the older, smaller single storey dwellings. This is a defining neighbourhood character, reflected in the proposed development which is appropriate and desirable.

Intent and Purpose of the NCP Official Plan

36NCP policies seek to preserve and protect the residential character and identity of the area principally through the ZBL provisions. Mr. Bechard opined that the intent and purpose is met.

Intent and Purpose of the Zoning By-law

37The ZBL regulates lot coverage at 25% of the site in the R1B Zone. Density is not an applicable standard as it relates to the proposed single detached dwelling. The density of the site is not increasing as the existing single detached dwelling is being replaced with another single detached dwelling maintaining one dwelling per lot.

38The proposed dwelling maintains the majority of the required zoning provisions and the variances being sought are largely technical and minor in nature. If the proposed dwelling was outside of the intended character for the neighbourhood, stricter Zoning provisions would be in place that further limit building scale and massing, such as increased setbacks. His view is that the intent and purpose of the ZBL is met.,

Minor in Nature

39Mr. Bechard emphasized that it is the right of any landowner to build within the permissions of the ZBL requirements. If it was the intent of the ZBL to provide for a neighbourhood character that reflected a smaller built form, there would be stricter provisions in place that further limit the scale and massing of new dwellings. The proposed development conforms to the majority of the ZBL provisions. No further variances are required, there are no negative or adverse impacts on lotting pattern, on streetscape, massing or shadowing concerns. He opined that the variances are minor in nature. Mr. Bechard concluded that variance Application satisfies the four tests contemplated by s. 45(1) of the Act and that the proposed minor variances represent good planning. He recommended that the subject appeal be refused.

THE TOWNSHIP

40The Township supports the Applicant’s position. Ms. Dreher said the Owner made an application for a minor variance which was later revised and at the COA hearing, the Applicant requested the following:

(i) increase the Maximum Lot Coverage in the R1B zone from 25% to 29.72%, increase the Maximum Height from 9.0 metres to 9.50 metres (south elevation), 9.35 metres (north elevation), 9.50 metres (west elevation) and 9.27 metres (east elevation) under the ZBL. This is to permit the construction of a new two-storey dwelling measuring a ground floor footprint of 592 square metres with a 6.83 square metre porch, and the construction of an accessory structure (cabana) at the rear of the dwelling with a ground floor footprint of 86.97 square metres with a 18.93 square metre porch.

41The Maximum Height for a dwelling varies based on the Residential zone. As the property is within the R1B zone, the maximum permitted height in accordance with Table 6.3 a of s. 6.3 of the ZBL is 9.0 metres. Height is measured in accordance with Number 88 of s. 2 of the ZBL which is defined as the vertical distance measured from the established grade to (a) the highest point of the roof surface or the parapet, whichever is the greater, of a flat roof, (b) the deckline of a mansard roof, (c) the mean level between eaves and ridge of a gabled, hip, gambrel roof or other type of pitched roof. The height of the dwelling is measured independently for each side of the dwelling, resulting in four (4) different heights to account for variations in established grade and rooflines for Maximum Lot Coverage requirements are also detailed in Table 6.3 a of s. 6.3 of the ZBL. The Maximum Lot Coverage for the R1B zone is 25%. Lot Coverage is defined as Number 107 in Section 2 of the ZBL as meaning the percentage of the lot area covered by all buildings and structures above grade, and shall not include the portion of such lot area which is occupied by a structure or portion thereof which is completely below grade, and for the purposes of this definition, the lot coverage in each zone shall be deemed to apply on to that portion of such lot which is located within said zone.

42Lot Coverage is also detailed in s. 3.2.4 of the ZBL which states (a) in any Residential zone the maximum lot coverage for accessory buildings and structures shall be ten percent (10%) of the lot area or 120 m², whichever is less, and (b) except where specifically excluded by this By-law, accessory buildings and structures shall also be included in the calculation of lot coverage for the purposes of determining compliance with the maximum lot coverage as provided in the applicable zone under Parts 6 to 9 of this By-law. The ZBL defines “building” as any structure, whether temporary or permanent, used or built for the shelter, accommodation or enclosure of persons, animals, materials or equipment.

43Ms. Dreher is of the opinion that the proposed variance application maintains the general intent and purpose of the Official Plan. A sense of spaciousness is maintained as the proposed dwelling’s interior side yard setbacks on both sides of the dwelling exceed the minimum required side yard setbacks which aid in mitigating any increased massing associated with the increase in height. The proposed roof is tiered and the rear portion of the dwelling is a single storey. The attached garage is also set back further than the front wall of the dwelling and appears to have a height of approximately 7.4 m. These architectural elements and the variation in roof heights also aid in mitigating and decreasing the overall mass of the dwelling.

44The Township adopted the new King OP on September 23, 2019. The adopted Official Plan was subsequently approved by York Region on September 24, 2020, subject to modifications and three site-specific deferrals. In accordance with the Act, York Region issued the Notice of Decision on October 8, 2020; the last day to submit an appeal was October 28, 2020. York Region received twelve (12) Notices of Appeals pursuant to s. 17(36) of the Act.

45As the Township’s new Official Plan, King OP, is under appeal, the Official Plan remains Council endorsed policy but is not determinative.

46The subject property is designated Established Neighbourhood in accordance with the King OP. The objectives of the Established Neighbourhood designation (Section 5.5.1) are to recognize, maintain and protect the character and identity of existing low density residential neighbourhoods and to ensure that proposed replacement dwellings and dwelling additions occur in a manner that maintain and protect the existing neighbourhood character.

47Under s. 5.5.3 of the new Official Plan, once in effect, the replacement of an existing single detached dwelling with a new single detached dwelling will be subject to Site Plan Control and that the built form of a replacement dwelling and infill development and any accessory structures thereto, including scale, massing, architectural design and character, and building materials, shall be consistent with the surrounding neighbourhood. The lot coverage, setbacks, orientation, and separation distances of infill development and replacement dwellings shall also be consistent with the surrounding neighbourhood. Replacement dwellings and infill development will also be sited and sized to minimize impacts to existing vegetation.

48The subject property is zoned Residential – Single Detached “B” (R1B) as per the ZBL. A series of new residential zones were implemented through the ZBL to ensure that new developments including replacement dwellings within mature neighbourhoods would be more consistent with the established character of the mature neighbourhoods. Height and side yard setbacks would have the most impact on maintaining the established character of spaciousness and separation between adjacent properties as well as controlling the overall size and mass of a dwelling.

49Ms. Dreher noted that the approach of introducing new Zoning By-law provisions assists in complying with the Nobleton Community Plan policy directions, which are to ensure that new development and redevelopment would be made generally compatible with and enhances the scale and character of the existing area. The new Zoning By-law provisions introduces new residential zones with lot and building standards that are representative of the existing lot fabric and built form of the surrounding neighborhood.

50She stated that it is Planning Staff’s opinion that the intent of the ZBL has been met. In reviewing the variances, Planning Staff evaluated the overall mass of the proposed dwelling. The interior side yard setbacks on both sides of the dwelling exceed the minimum required side yard setbacks which aid in mitigating any increased massing associated with the increase in height. The proposed roof is tiered and the rear portion of the dwelling is a single storey. The attached garage is also set back further than the front wall of the dwelling and appears to have a height of approximately 7.4 m. These architectural elements and the variation in roof heights also aid in mitigating and decreasing the overall mass of the dwelling.

51Planning Staff also reviewed the variance requesting relief to permit a maximum lot coverage of 29.72%. The requested lot coverage of 29.72% includes the proposed dwelling, attached garages and proposed cabana at the rear of the subject property. Staff note that the proposed dwelling, including the attached garage and front porch have been reduced in size to have a total coverage of approximately 25.25%. The cabana is proposed with a lot coverage of approximately 4.47%. By incorporating a one storey portion to the dwelling it assists in reducing the overall massing of the dwelling, however it results in an increased lot coverage. Planning staff are also satisfied with the proposed dwelling as the portion of the dwelling with the attached garages is set back further from the street. This results in the dwelling not appearing as large from the street and helps reduce the overall mass of the dwelling.

52The variance requesting relief for lot coverage includes the proposed cabana. The proposed cabana complies with the by-law provisions for setbacks from the rear and interior lot lines and does not require a variance from the provisions of the ZBL for accessory structure lot coverage. The structure is located behind the proposed dwelling and would not be visible from in front of the proposed dwelling. The structure is proposed to be located at the rear of the lot which results in a large open area in the centre of the property, and fencing is proposed around the lot which will aid in mitigating any negative visual impacts associated with the proposed accessory structure.

53Ms. Dreher is of the opinion that the proposed variances are desirable for the appropriate development and use of the land. The interior side yard setbacks on both sides of the dwelling exceed the minimum required side yard setbacks which aid in mitigating any increased massing associated with the increase in height. The proposed roof is tiered and the rear portion of the dwelling is a single storey. The attached garage is also set back further than the front wall of the dwelling and appears to have a height of approximately 7.4 m. These architectural elements and the variation in roof heights also aid in mitigating and decreasing the overall mass of the dwelling.

54The variance to increase lot coverage is primarily in relation to the proposed cabana at the rear of the subject property as the lot coverage for the proposed dwelling, attached garages and attached porches is 25.25% where 25% is the maximum lot coverage for the R1B zone. Staff are satisfied with the proposed cabana as the structure is proposed to be located at the rear of the lot which results in a large open area in the centre of the property, and fencing is proposed around the lot which will aid in mitigating any negative visual impacts associated with the proposed accessory structure.

55Ms. Dreher opined that the application and the requested variances are minor in nature. The variances together with the conditions as detailed in the COA decision would ensure that sufficient separation and spaciousness is provided between dwellings and that the massing of the dwelling is mitigated. The conditions related to engineering matters, including the submission of a Grading and Drainage Plan to the satisfaction of the Township’s Public Works Department would ensure that there are no impacts to drainage due to the increase in coverage. She recommends that the Tribunal approve the variance application to provide relief from Table 6.3 a of ZBL. She concluded that the proposed variances satisfy the tests in s. 45(1) of the Act and should be approved.

THE APPELLANT’S POSITION

56Mr. Ramsay’s opinion was that while the application is consistent with the PPS and conforms to the Growth Plan, it fails all the four statutory tests. He stated that his neighbourhood study (upon cross-examination: he acknowledged that it was his private study; he did not independently verify the lot coverages; he is not a qualified surveyor and could not vouch for its accuracy on lot sizes and lot coverages, as those are rough approximations only) on the delineation of a Neighbourhood Study Area is an important consideration in the evaluation of a development proposal since many of the policies in the King OP require new development to complement and enhance the existing character of the neighbourhood. For the purposes of this hearing Mr. Ramsay has considered a Neighbourhood Study Area that generally encompasses existing detached dwellings found on Greenside Drive, Noblewood Drive, Forestave Crescent, and Hollywood Crescent. He went at length on the Tables on lot sizes and coverages, and gave an outline of the study.

57The Neighbourhood Study Area is an enclave of 57 large residential lots. Single detached dwellings occupy all of the lots. The area was developed beginning in 1966 through two subdivision plans. Forty-four of the lots are within the limits of Registered Plan 562. The remaining seventeen lots comprise the easterly extension of Hollywood Cres. The land use and built form within the surrounding neighbourhood can be characterized as a mix of modest and large sized 1, 1½ and 2 storey detached dwellings on large lots with generous setbacks and mature vegetation. Like other parts of the Nobleton community, the Neighbourhood Study Area is experiencing modest rejuvenation.

58The Neighbourhood Study Area has been delineated based on the following elements of the existing pattern of land uses, built form, lotting pattern, setbacks, road network and other characteristics of the area.

(a) The existing built form in the area can be categorized into two distinct groups. One group involves the original dwellings built in the 1960s and 1970s. Many of these dwellings are generally modest in size and have generous building setbacks. These dwellings are a mix of one and two storey homes with attached one- or two-car garages. The second group comprises newer or renovated dwellings, mostly built in the past 5 to 10 years. These newer dwellings are the result of a demolition and replacement of an original dwelling or a renovation of an existing dwelling. These newer and renovated dwellings are larger, two storey dwellings with attached two- or three-car garages; (b) The newer development described above has generally been well integrated within the older dwellings found in the neighbourhood; and (c) Greenside Dr., Noblewood Drive and Hollywood Crescent have 20 m rights of way. The traveled portion of these roads is approximately 8 m wide. Many roads have been constructed without sidewalks.

59He gave a summary of respective lot sizes and his views of same. The lot sizes within the Neighbourhood Study Area are summarized. Overall, the lots are quite large and reflect the period of development when municipal services were not available. Lot coverages are also summarized.

60The Neighbourhood Study Area, he said, is characterized by relatively low lot coverages. The average lot coverage is 10.6% representing less than half of the maximum permitted lot coverages in the applicable zones found within the Neighbourhood Study Area. This situation is due in part to the significantly large lot sizes in the area. The larger homes are generally situated on the larger lots.

61Although Mr. Ramsay is of the opinion that the Application is consistent with the PPS and conforms with the Growth Plan, he stated it is important to take note of the following policies.

62Policy 4.6 of the PPS under the Implementation and Interpretation Section states:

“The official plan is the most important vehicle for implementation of this Provincial Policy Statement. Comprehensive, integrated and long-term planning is best achieved through official plans”. The PPS emphasizes the importance of a municipality's official plan in ensuring long-term planning is comprehensive and integrated.

63Policy 5.2.5.8 of the Growth Plan states:

“The identification of strategic growth areas, delineated built-up areas, and designated greenfield areas are not land use designations and their delineation does not confer any new land use designations, nor alter existing land use designations. Any development on lands within the boundary of these identified areas is still subject to the relevant provincial and municipal land use planning policies and approval processes”.

64He stressed that the above policy of the Growth Plan clearly identifies that any lands within delineated built-up areas, such as the subject property, remains subject to the relevant municipal land use planning policies. The underlying land use designation as identified in the Official Plan is still applicable when contemplating any development on these lands.

65In summary, while he is not taking issue with particular policies in the PPS and Growth Plan, he said it is important to remember that the Official Plan is meant to implement these provincial policies and that conformity with the Official Plan is required to fully implement these provincial policies. The Official Plan, in turn, is implemented through planning instruments, including zoning by-laws.

66Mr. Ramsay’s view is that the proposed development is an overdevelopment of the Site, will create privacy and streetscape issues and will not be well integrated into the neighbourhood. In his opinion the proposed minor variances do not have sufficient regard for the matters of provincial interest.

67He stated that s. 2 of the NCP sets out principles to guide future development within the Nobleton Community Area. Relevant to the matters before the Tribunal, he stressed, are the Principle 2.1.5 and Principle 2.1.6. Much of the Nobleton Community Area, including the subject property, was developed on the basis of private water and/or wastewater services. This meant that lot sizes were generally large in order to accommodate on-site well and/or sewage systems. As full municipal water and/or wastewater services have become available and infill and redevelopment has occurred, the above principles require new development to retain the spaciousness and separation between houses in order to reinforce the small town character.

68In Mr. Ramsay’s opinion the proposed variances to allow increases in height and lot coverage will result in development that is not compatible with the surrounding area. In particular, the proposed development will result in an overdevelopment of the Site. The proposed lot coverage of 29.46% is over three times larger than the average lot coverage and three to four times larger than lot coverages found on lots immediately surrounding the subject property. He noted that the COA at its hearing on December 2, 2020 considered a lot coverage of 29.72%.

69He stressed that the proposed development that will be facilitated by the variances does not conform with s. 4.2.3. The proposal will result in compatibility issues with adjacent residents. The increase in lot coverage will adversely impact the use of the outdoor amenity area(s) for the neighbours, as they will undoubtedly feel boxed in by the much larger dwelling. Further the proposal is not proportional to the lot size. The larger building footprints within the neighbourhood are located on the larger lots. However, the Applicant is proposing the second largest building footprint on a lot that is well below the average lot size in the neighbourhood.

70It is his opinion that the proposed development does not conform to the policies pertaining to the Existing Residential Areas and Urban Design in the Nobleton Community Plan. These policies require new residential development and redevelopment to be compatible with and complement and enhance the character of the existing residential development. The proposed development is not in keeping with the character of the neighbourhood. The proposed development will have the highest lot coverage in the neighbourhood and will be one of the largest dwellings.

71He acknowledged that the King OP is not in effect and therefore is not determinative in the appeal. However, he stated the policies in the King OP are informative of the Township’s emerging policy approach to infill development in established neighbourhoods such as the area of the subject property.

72In Mr. Ramsay’s opinion the proposed replacement dwelling and accessory building will neither maintain nor protect the existing neighbourhood character. The proposed development represents an overdevelopment of the Site and will have the highest lot coverage within the Neighbourhood Study Area. In his opinion the proposed development on the subject property does not conform with the above policies. It is his opinion that the proposed development does not conform with the Established Neighbourhood policies in the King OP.

73Mr. Ramsay concluded that the proposal to increase the maximum building height and lot coverage do not maintain the general intent and purpose of the Official Plan and ZBL, is not minor and is not appropriate for the development of the subject property and area. The proposal will facilitate a development that is not in keeping with the existing and planned character of the neighbourhood.

74He recommended the appeal be allowed and that the proposed minor variances be denied. He opined that the minor variances do not represent good planning. However, in the event that the Tribunal makes a determination to approve the minor variances it is his recommendation that the conditions identified in the COA’s decision should be imposed with an additional condition that specifically addresses the deployment of space within the permitted lot coverage.

ANALYSIS AND DECISION

75The Tribunal finds that every matter is decided upon its own particular facts. Both sets of experts have given opinion evidence which can be divided into, on the one hand, (Applicant supported by the Township) for the application and on the other of the Appellant against the application. The Tribunal is persuaded by and accepts the land use opinion evidence of Mr. Bechard and Ms. Dreher over that of Mr. Ramsay.

76The issue for the Tribunal is whether the proposed development will be consistent with the PPS, has regard to provincial interests, and whether the variances requested meet the statutory tests set out in s. 45(1) of the Act.

77The Tribunal is satisfied that the proposed variances at the subject property have regard for the matters of provincial interest as set out in s. 2 of the Act in particular s. 2(j) on the provision of a range of housing; s. 2(p) the appropriate location of growth and development; and s. 2(r) on the promotion of built form that is well-designed.

78An Applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met with: i.e. that the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the land building or structure and are minor in nature.

PROVINCIAL POLICY STATEMENT 2020 (PPS)

79The proposal is an efficient use of land. Policy 1.1.1(a) and (b) of the PPS relating to urban areas in municipalities applies to the subject property: Managing and directing land use in healthy, liveable urban areas to achieve efficient development and land use patterns and accommodating an appropriate affordable and market based range and mix of residential types including additional residential units, multi-unit housing and affordable housing are met in this instance. The PPS encourages intensification and use of infrastructure and identifies settlement areas as the focus for growth and development, to promote intensification and redevelopment (sections 1.6.3 and 1.6.6.2). The Tribunal is satisfied that the variance application is consistent with the PPS.

GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE (2020), (Growth Plan)

80The subject property is identified as Built-Up Area. The Growth Plan in Policy 2.2.1.2(c)i, directs growth to settlement areas and directs that growth will be focused in delineated built up areas. The proposed development within a delineated built up area facilitates this policy and will provide additional housing within this settlement area. The Tribunal is satisfied that the variance application conforms to the Growth Plan.

REGION OF YORK OFFICIAL PLAN (ROP)

81The Tribunal agrees with Mr. Bechard that s. 3.5 sets out the Region’s policies for housing based on the objective of promoting an appropriate mix and range of acceptable housing to meet residents’ needs, in particular Policy 3.5.4.

82The application would allow for the development of a replacement residential dwelling that meets the needs of the landowner while contributing to a mix of housing types and sizes within the Nobleton Village consistent with the Region’s housing objectives. Given the relatively large size of the lots in the immediate neighbourhood, an estate-style house is appropriate for the context and reflects the emerging character of this area of the village. The Tribunal finds the ROP encourages developments that utilize land efficiently and supports an increase in the supply of housing in urban areas through intensification and utilizing municipal services. Housing intensification should include the creation of new residential units on vacant or underdeveloped lands through infilling in urban areas. The ROP requires planning and development of settlement areas be based on a comprehensive, integrated and collaborative process and coordination of the delivery of capital infrastructure (roads, transit, water, wastewater) services requirement. This is to implement the Region’s Housing Supply Strategy on increasing housing supply in the region. As such compact urban form and good urban design principles, implemented with community design guidelines are essential. The Tribunal finds that the Applicant’s detailed plan and design, is compatible with the urban built form in the surrounding neighbourhood. The built form is good urban design and compatible with the character of the neighbourhood. The proposed development on the subject property will result in the increase of the housing stock in line with the policies. The Tribunal is satisfied that the general intent and purpose of the ROP is maintained.

NOBLETON COMMUNITY PLAN (NCP)

83The Nobleton Community Plan (NCP) is the currently in-force Official Plan of the Township. The subject property is designated “Residential’ in the NCP. The main permitted uses in the Residential designation are single and semi detached dwellings. The Tribunal agrees with Mr. Bechard’s view that looking at s. 3.2.3, there are four key principles in consideration of residential character:

1. New development in existing residential areas must be compatible with existing character;
2. Each residential neighbourhood has a distinctive character;
3. The ZBL will be relied upon in the determination of residential character by defining minimum lot frontages and areas for each area;
4. In the case of new houses on existing lots, the ZBL will rely on height and setback requirements to ensure new development is compatible.

84In the case of new development on an existing lot, the NCP establishes that it will rely particularly on building height and setback provisions in the consideration of residential character. These elements are most critical to the perception of building massing and as such are more determinative of residential character than lot coverage or rear yard setback. The NCP urban design policies in s. 4.2 are intended to deal with the physical character and appearance of the Nobleton Community. Development should be compatible with the character of existing residential development in the Community. A sense of spaciousness and a wide separation between houses should be encouraged through side yard setbacks. Further, the size of houses should be in keeping with the size of the lots. The Tribunal finds that s. 4.2 provides that the Township shall, while maintaining the character of stable residential neighbourhoods, have regard to new development and redevelopment that improve visual attractiveness and a high standard of building design in the area. Under the NCP, the Township is to encourage diversity of housing within the neighbourhoods and villages so that the housing needs of existing and future residents are met. Infill development is to fit their context, massing, height scale, and architectural style of the existing neighbourhood. The Tribunal finds that the NCP plans for and designates lands for a range of housing types and densities, promotes and supports design which enhances and respects the character of existing neighbourhood community and creates liveable urban places; and promotes and supports appropriate residential intensification throughout the urban area. Residential intensification is encouraged where the scale and physical character are considered to be compatible with the surrounding neighbourhood community and where infrastructure and municipal services are available.

KING OP

85The King OP is not in-force and is not determinative but Mr. Bechard has given his overall opinion that the development nevertheless maintains the general intent and purpose of the King OP. Section 1.5 of the King OP identifies a number of goals and objectives that guide policy direction, including the protection and enhancement of the character of existing communities and maintaining these as diverse, livable, safe, healthy, sustainable, thriving and attractive communities.

86The Tribunal agrees with Mr. Bechard that the proposed replacement of the former single detached dwelling with a new, larger dwelling is considered to be a form of modest intensification. Under s. 2.3.4.7, intensification is generally permitted within the built boundary in accordance with all applicable policies of this Plan, including the general development policies in s. 3 as well as the applicable policies of the applicable land use designation in s. 5. Under s. 2.3.4.9, a limited amount of residential intensification may be permitted in the Established Neighbourhood designation in accordance with the policies of s. 5.5 which are intended to ensure the continued conservation of the character of these neighbourhoods.

87The Tribunal finds that the King OP recognizes that some redevelopment and intensification is anticipated and permitted within Established Residential Neighbourhoods in order to support their vitality and regeneration, including the provision of a range of housing options, provided that such development meets the policies related to the preservation and enhancement of neighbourhood character within Nobleton Village.

88From the detailed drawings, site plan and photographs, the Tribunal finds that the proposed two storey detached dwelling is in size, structure, and built form compatible with the established residential neighbourhood. The area comprises large lots with wide frontages and is generally characterised by large newer single detached dwellings that are two stories high. There are also single storey dwellings on large lots. Spaciousness in between dwellings is maintained and by virtue of the large residential lots in this neighbourhood. The proposed development would constitute residential intensification in an existing built up and developed area where infrastructure and municipal services are available. Increasing the residential and affordable housing stock for households in the Township is a policy of the OP and this development will maintain the character of the established residential neighbourhood. The Tribunal is satisfied that the variances sought maintain the general intent and purpose of the OPs.

ZBL

89The subject property is zoned Residential – Single Detached “B” (R1B) as per the ZBL. The Tribunal agrees with Mr. Bechard and Ms. Dreher that in the proposed development, height and side yard setbacks would have the most impact on maintaining the established character of spaciousness and separation between adjacent properties as well as controlling the overall size and mass of a dwelling. The Tribunal agrees with Ms. Dreher that the overall mass of the proposed dwelling is reduced, by virtue of the interior side yard setbacks on both sides of the dwelling which exceed the minimum required side yard setbacks. These aid in mitigating any increased massing associated with the increase in height. The proposed roof is tiered and the rear portion of the dwelling is single storey. The attached garage is also set back further than the front wall of the dwelling. These architectural elements and the variation in roof heights also aid in mitigating and decreasing the overall mass of the dwelling.

90The Tribunal finds that the as-of-right lot coverage is 25% and finds it necessary to evaluate the numerical value of the lot coverage as it relates to the general intent of the ZBL. The coverage increase does not create any lotting pattern change in the streetscape. The proposed dwelling will be sited on the lot with interior side yards, front yard and back yard that meet the setback requirements. The accessory building is sited well to the rear of the lot and is not visible from the street. This is generally in keeping with the character of this neighbourhood. Both Mr. Bechard and Ms. Dreher confirm that there is sufficient space between the subject property and the adjacent property that the intent of spaciousness is maintained. There would not be any boxing-in effect on the adjacent property. Further the subject property complies with the avoidance of massing by having a tiered roof which reduces from two storeys to one storey towards the rear of the lot. The overall effect is a reduction of massing and a reduction of impact on the streetscape. The built form is similar to and is compatible with this residential neighbourhood. The Tribunal finds that this maintains the lotting pattern on the street. The streetscape character is not adversely impacted. In all respects, the proposed dwelling meets the ZBL standards apart from the minor height variances requested and the lot coverage increase. The Tribunal is satisfied that the variances maintain the general intent and purpose of the ZBL.

91The proposal is appropriate development of the subject property as it will result in a new two-storey detached dwelling that is stepped down to one storey in portions of the building. The subject property will have landscape planning with natural vegetative screening in place in the construction of the dwelling. The lot used to be on private services but have now been on full municipal services. The old dwelling has been demolished and the new single detached dwelling will increase the residential stock in the Township which is a policy goal of the Township. This represents an appropriate use and development of an infill development to take up the adequate use of municipal services and infrastructure that exist in this established residential neighbourhood. This development is on a large lot which incorporates an architectural style and built form that is compatible and characteristic in this neighbourhood. The proposal is, in built form and also in height, size and massing as those permitted in this zone. The use of a dwelling with cabana and pool is permitted by the ZBL. Homes along Greenside Drive are of varied scales and sizes. These range from one storey to two storey modest to two storey mansions, completed or in various stages of construction. Most have accessory structures to service the dwelling. This is in keeping with the existing character of the area now hewn from the old and evolved to the varied architecturally styled dwellings. The proposed development will represent appropriate residential intensification for the subject property. There is no over development and the proposed development is appropriate for the subject property and represents good planning. The Tribunal is satisfied that the proposed variances are desirable for the appropriate use and development of the subject property.

92The proposed use of the detached dwelling building with cabana and pool will not result in unacceptable adverse impact on the adjacent properties. The larger residential lots in this area are on average over 3000 m² in area. The distances between dwellings are relatively wide and by reason of the required side yard setbacks, no shadowing or privacy or overlook concerns are evident. The spaciousness in between residences is being kept. As the cabana and pool are at the rear of the subject property, the structures are not visible from the street and with the proposed vegetative screen, there is no negative impact on the streetscape. The proposed dwelling which is two storeys high and one storey in portions of the building, is in architectural style, scale, size and built form in keeping with the surrounding homes. There is thus no adverse impact on the streetscape. The built form is compatible with the residential neighbourhood and the character of the surrounding area is maintained. There is sufficient amenity space for the subject property and there is no evidence of any unacceptable adverse impact on the occupants or owners of surrounding properties. The Tribunal is satisfied that the variances are minor in nature.

ORDER

93The Tribunal having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in s. 45(18.1.1) of the Act that no further notice is required.

94The Tribunal Orders that the appeal is dismissed and the variances to Zoning By-law No. 2016-71 are authorized subject to the following conditions:

1. That 0.6 metres (2 feet) from all property lines is to remain undisturbed.
2. That the owner shall confirm that grading of the rear yard shall ensure positive drainage to the swales and will not adversely affect any neighbouring property.
3. That prior to issuance of Building Permits the owner shall submit a Grading and Drainage Plan for review and approval from the Public Works Department.
4. That human habitation is not permitted in the proposed accessory structure (cabana).
5. That the plans submitted for Building Permits shall be in substantial conformity with the following plans:

• Site Plan, prepared by RN Design Ltd., revision #13 dated November 13, 2020.
• A4, Front Elevation and Rear Elevation, prepared by RN Design Ltd., revision #13 dated November 12 ,2020.
• A5, Right Side Elevation and Left Side Elevation, prepared by RN Design Ltd., revision #13 dated November 12, 2020.

• A8, Cabana – Final, Elevations, prepared by RN Design Ltd., revision #9 dated November 12, 2020. 6. No private infrastructure including fencing shall be constructed within the municipal drainage easement on the subject property. 7. The owner acknowledges and agrees to reinstate the municipal drainage easement to previously existing conditions to the satisfaction of the Public Works Department. The owner further acknowledges and agrees that no works are to be completed until the appropriate approvals and/or permits have been issued by the Municipality.

“T.F. Ng”

T.F. NG

MEMBER

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.