Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 20, 2021
CASE NO(S).: PL200551
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Aiying Zhang
Subject: Minor Variance
Variance from By-law No.: 177-96, as amended
Property Address/Description: 201 Helen Avenue
Municipality: City of Markham
Municipal File No.: A/081/20
LPAT Case No.: PL200551
LPAT File No.: PL200551
LPAT Case Name: Zhang v. Markham
Heard: May 14, 2021 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Aiying Zhang | Terence Wong |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON MAY 14, 2021 AND ORDER OF THE TRIBUNAL
1Aiying Zhang (the “Applicant/Appellant”) applied for a minor variance from the City of Markham’s (“City”) Committee of Adjustment (“COA”) in 2020. The Owner sought approval for a larger shed in the backyard of his property versus what the City Zoning By-Law No. 177-96 (“ZBL”) would permit. Whereas the City staff recommended approval, the COA denied the application.
2The subject property (“Property”) is located on the south side of Helen Avenue, east of Kennedy Road, and north of Highway 407. The Property is municipally known as 201 Helen Avenue and has a lot size of 398 square meters. The Property has a single detached dwelling and two backyard sheds currently in place.
3The Applicant/Appellant has signed a memorandum of agreement to remove one of the two sheds as part of his submission for approval of the minor variance by the Tribunal. The Applicant/Appellant requests a 23.78 square metre shed to be allowed whereas the ZBL allows 10 square metres (“m2”).
WITNESSES, PARTIES AND PARTICIPANTS
4Nick Pileggi, a Professional Planner was called by the Applicant/Appellant. Prior to this hearing, Mr. Pileggi had provided the Tribunal with a sworn affidavit that addresses the minor variance and provides the necessary rationale as well as covers the planning rationale in support of the sought approval.
5The City informed prior to the hearing that they will not attend and there were no participant requests received.
EVIDENCE AND ANALYSIS
6Mr. Pileggi informed that the Applicant/Appellant is requesting relief to the maximum permitted Gross Floor Area (“GFA”) for one of the existing accessory buildings that has a total GFA of 23.78 m2 (255.97 square feet, “ft2”) and that intent is for the smaller accessory building, which has a total GFA of 9.29 m2 (99.99 ft2) to be removed.
7Mr. Pileggi informed the Tribunal about the neighbourhood context. Mr. Pileggi also shared information which suggests that the neighbours are supportive of the Applicant/Appellant’s proposal.
8Mr. Pileggi opined that the proposal meets the four statutory tests set out in the Planning Act (“Act”), namely;
a. Does the proposal conform with and not conflict with the general intent and purpose of the City’s Official Plan;
b. Does the proposal maintain the general intent and purpose of the ZBL and not conflict with it;
c. Is the proposal desirable and appropriate for the development of the property; and
d. Is the variance minor.
9Mr. Pileggi opined that the proposal would maintain the designation of the Property as “Residential Low Rise”, which provides for low rise housing forms. Mr. Pileggi added that the proposal maintains the general intent and purpose of the Official Plan regarding accessory uses by having the shed designed with a sloping roof which minimizes any impacts of the backyard and side yard adjacent uses.
10Mr. Pileggi stated that the subject property is zoned “Residential Two, Exception 31 Zone” (R2*31) under the ZBL. The By-law also permits detached accessory buildings with a maximum height of 4.50 m (14.76 ft) and a maximum GFA of 10.0 m2 (107.64 ft2) provided they are located in the rear yard, and have setbacks of at least 1.20 m (3.94 ft) to the interior side or rear lot line. Mr. Pileggi informed that the proposed shed provides for larger setbacks compared to what the ZBL allows. He opined that in spite of the larger GFA, the shed will fit better and will have reduced negative impingements on neighbours that abut the rear yard and the side yards. He added that the proposal hence maintains the intent and purpose of the ZBL.
11Mr. Pileggi opined that the proposal would allow the Applicant/Appellant to make use of the storage in the shed for better maintenance and upkeep of his Property and for personal storage. Mr. Pileggi opined that this way the accessory use provided by the shed is desirable for the appropriate development of the Property.
12Mr. Pileggi opined that the variance is minor even though mathematically it appears large in that 23.78 m2 are sought versus the 10 m2 is allowed. Mr. Pileggi opined that the proposal by appropriate grading, drainage, landscaping, and sloping roof will diminish the spatial impacts as supported by letters from the neighbours at 199 and 203 Helen Avenue.
13The Tribunal having regard for the information on file, the City staff report as well as the Applicant/Appellant’s agreement with the City to remove the second finds that the minor variance is desirable for the appropriate development or use of the land as it satisfies all the tests set out in section 45(1) of the Act.
14The Tribunal reviewed the conditions set by City staff and finds that the Applicant/Appellant has agreed to abide by the conditions (Exhibit 1, page 23) to maintain the shed as it is in place and to plant native trees to enhance desirability and mitigate negative impacts.
ORDER
15The Tribunal orders that the appeal is allowed, and the minor variance is authorized as follows subject to conditions set out in Attachment 1;
- The maximum Gross Floor Area for one of the existing accessory buildings is allowed to be 23.78 m2 (255.97 ft2) whereas the City of Markham Zoning By-Law No. 177-96 allows a maximum of 10 m2 .
16Should any difficulties arise during the implementation of 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
Conditions of Approval
(see for context Exhibit 1, page 23)
1The variance applies only to the subject development as long as it remains.
2That the variance applies only to the subject development, in substantial conformity with the batch stamped plans attached as Appendix “B” to this Staff Report, and that the Secretary-Treasurer receive written confirmation from the Director of Planning and Urban Design or designate that this condition has been fulfilled to his or her satisfaction.
3That the applicant plant two trees along the west elevation and two trees along the south elevation of the subject development, ensuring that the trees selected are of Native Species as identified in the City of Markham’s “Native Tree Species Selection List” attached as Appendix “C”, and that the Secretary-Treasurer receive written confirmation from the Director of Operations or designate that this condition has been fulfilled to his or her satisfaction.