Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 23, 2021
CASE NO(S).: PL200450
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Majeed Mohtsham
Subject: Minor Variance
Variance from By-law No.: 150-85
Property Address/Description: 12 Dellgrove Circle
Municipality: City of Cambridge
Municipal File No.: A31/20
LPAT Case No.: PL200450
LPAT File No.: PL200450
LPAT Case Name: Mohtsham v. Cambridge (City)
Heard: May 27, 2021 by Video Hearing
APPEARANCES:
Party Majeed Mohtsham (“Applicant/Appellant”)
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON MAY 27, 2021 AND ORDER OF THE TRIBUNAL
1This was a hearing from an appeal under s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) regarding a minor variance application refusal by the Committee of Adjustment for the Corporation of the City of Cambridge (the “City”).
2The Appellant has a detached dwelling known municipally as 12 Dellgrove Circle in the City. The Applicant/Appellant wants to build a basement second unit. The Zoning By-law No. 150-85 (the “ZBL”) requires a minimum lot area of 450 square metres (“m²”) (4,843 square feet (“ft²”)) to permit an accessory dwelling unit. The Applicant/Appellant’s lot area is approximately 327 m² (3,519 ft²) and is smaller than the minimum set by the ZBL for such uses.
PARTIES, PARTICIPANTS AND WITNESSES
3The City did not attend to oppose the Applicant/Appellant.
4Graham and Michelle Price submitted a participant request and a participant statement. The Tribunal granted them participant status and accepted their participant statement for its consideration.
5Majeed Mohtsham as the Applicant/Appellant was the only witness and he appeared as a lay witness.
EVIDENCE AND ANALYSIS
6For the Tribunal to allow this appeal, s. 45(1) of the Act requires the following four tests to be satisfied as to whether the minor variance;
- Maintains the general intent and purpose of the Official Plan (“OP”);
- Maintains the general intent and purpose of the Zoning By-law;
- Is desirable for the appropriate use of the land, building or structure; and
- Is minor in nature.
7Mr. Mohtsham brought to the Tribunal’s attention that the City staff had recommended approval of the requested minor variance. He provided evidence that the staff are working on a proposed change to the ZBL to reduce the minimum area requirement to 330 m² and his lot size of 327 m² would have been very close compliance with the minimum lot area requirement set out in the zoning by-law.
8Mr. Mohtsham provided detailed submission in his review of the City’s Official Plan (“COP”) and cited policy, which encourage development of secondary units indirectly supporting possible choice of housing types and affordability. He cited sections 3 and 8 from the COP as follows;
- The City will ensure the creation of 45% of new housing units through infill, conversion, intensification and the redevelopment of built-up areas of the City, particularly in the Urban Growth Centre, Community Core Areas, Nodes, Regeneration Areas, Reurbanization Corridors and Major Transit Station Areas.
Secondary Residential Unit
- The City will permit the establishment of a secondary residential unit within or attached to the existing residential buildings in all zones where residential uses are permitted without an amendment to the City’s Zoning By-law. Secondary residential units must be established in accordance with the following criteria:
a) appropriate parking arrangements can be accommodated on the property;
b) no separate access to a municipal road is required;
c) the secondary residential unit is compatible with neighbouring residential properties and the surrounding residential neighbourhood;
d) adequate potable water and wastewater treatment is available to accommodate the secondary residential unit;
e) the secondary residential unit is subordinate in scale and function to the main dwelling unit; and
f) compliance with the City’s minimum standards of maintenance and occupancy,
g) and any other applicable legislation.
9Mr. Mohtsham addressed the concerns raised by the participant in terms of character, parking and precedent setting. Mr. Mohtsham submitted that the proposed secondary unit has no visibility to the front of the dwelling or the access road. He showed visuals regarding access to ample parking. He added that there is no specific precedent in that each application has to sustain its own merits and his lot has great positioning with unspoiled and visual access to undisturbed natural areas from the backyard. He concluded that based on his own analysis and also, in finding support from the staff assessment on the record, his request conforms with the COP.
10Mr. Mohtsham submitted that, except for the requested variance, his proposal conforms with the ZBL. He stated that he accepts the staff recommended condition for approval of the minor variance, which requires;
That the proposed secondary unit be substantially in keeping with the plans submitted with the minor variance application and is limited to two bedrooms.
11Mr. Mohtsham concluded that he agrees with the staff assessment set out below and argues that all of these requirements are respected by the proposal:
The purpose of the minimum lot area requirement is to ensure that the property has sufficient amenity space, open space landscaping, and parking for both units. The subject property meets the minimum landscaped open space requirements for the whole lot as well as for the front yard and can accommodate the three required parking spaces.
12Mr. Mohtsham concluded that the proposal will fully conform with the ZBL if the minor variance is approved.
13Mr. Mohtsham reviewed the general aspects of the Act, including s. 2 regarding provincial interest; the Provincial Policy Statement 2020 (“PPS”), with focus on market driven housing choices, and the Growth Plan for Greater Golden Horseshoe (the “Growth Plan”) with emphasis on efficient land uses and intensification. He concluded that with all policies and plans considered, the proposal is desirable for the appropriate development of his land and property.
14Mr. Mohtsham reviewed that while the numerical difference between the ZBL minimum lot area and his lot appears large, it is contextually and in its impact minor, with little adjacent and neighbourhood impacts.
15In all respects, the Tribunal finds that the minor variance application is consistent with the PPS, conforms to the Growth Plan and has regard to the provincial interests set out in s. 2 of the Act and meets the statutory tests set in s. 45(1) of the Act.
16In making this Decision, the Tribunal has also had regard for the decision of the Committee and the information and documentation that was before the Committee prior to making those decisions.
17The Tribunal is satisfied that the four tests set out above are satisfied by this application.
ORDER
18The Tribunal allows the appeal and authorizes the following variance to the City of Cambridge Zoning By-law No. 150-85 subject to the condition set out in Attachment 1 hereto:
a minor variance to permit a minimum lot area of approximately 327 m² (3,519 ft²) whereas the by-law requires a minimum of 450 m² (4,843 ft²) to permit an accessory dwelling unit.
19Should any difficulties arise in implementing this order, the Tribunal may be approached.
“Jatinder Bhullar”
JATINDER BHULLAR 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.
ATTACHMENT 1
CONDITION OF MINOR VARIANCE APPROVAL
That the proposed secondary unit be substantially in keeping with the plans submitted with the minor variance application and is limited to two bedrooms.