Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 04, 2021

CASE NO(S).: PL200435

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

Applicant and Appellant: Andrew & Odessa Grignon

Subject: Minor Variance

Variance from By-law No.: 3036

Property Address/Description: 1795 Pine Grove Avenue

Municipality: City of Pickering

Municipal File No.: P/CA 47/20

LPAT Case No.: PL200435

LPAT File No.: PL200435

LPAT Case Name: Grignon v. Pickering (City)

Heard: June 25, 2021 by video hearing

APPEARANCES:

Parties

Representative

Andrew and Odessa Grignon

Denise Ranger

City of Pickering

No one appeared

Derek and Mercia Jaglall Self-represented

Jody Loussarian Self-represented

Robert and Rebecca Kennedy Adrian Visheau*

Kelsey Gordon*

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

1Andrew and Odessa Grignon (“Applicants/Appellants”), of 1795, Pine Grove Avenue (“subject property”) in the City of Pickering (“City”) applied for relief from the provisions of Zoning By-law No. 3036 (“ZBL”) as amended, so as to permit a commercial vehicle of stated dimensions to be parked on the residential lot for the operation of a home based business.

2The minor variance sought to s. 6.5 of the ZBL - For the operation of a home based business: to permit a commercial vehicle with a maximum height of 3.5 metres and a maximum length of 8.25 metres to be parked on a residential lot, whereas the by-law permits vehicles parked on any residential lot to be a maximum height of 2.6 metres and a maximum length of 6.7 metres.

3The City’s Planning Staff’s report dated August 31, 2020 supported the application. However, the Committee of Adjustment (“COA”) denied the variance application on September 9, 2020 (“rejection”).

4The Appellants appealed the COA’s rejection. The City has indicated it will not participate but will have a city planner on standby. City planner Isabel Lima attended the virtual hearing.

5At the start of the hearing, Mercia and Derek Jaglall; Robert and Rebecca Kennedy; and Jody Loussarian were granted Party status. Participant status was separately granted to Orazio Gianfriddo, Mary Gianfriddo, Kevin Neild and Dan Fanelli.

6Ms. Ranger, a licensed paralegal and representative of the Appellants, called Andrew Grignon, Odessa Grignon as fact witnesses and she also called Ms. Lima as a fact witness at the hearing. Counsel for the Kennedys, Mr. Visheau called Rebecca Kennedy as a fact witness and jointly with Derek Jaglall, called Robert Martindale, who was qualified by the Tribunal to give expert opinion evidence on land use planning. The Applicants/Appellants’ Document Brief was marked as Exhibit 1 and Mr. Martindale’s witness statement was marked as Exhibit 2.

THE PARTICIPANTS’ POSITION

7From their submitted statements that accompanied their status requests, the following summarised their general position: Allowing big commercial vehicles and equipment would be precedent setting and present risks and safety issues in the area. The Participants understand that people are running businesses and working from home but the vehicle is undesirable to the eye and not consistent with the streetscape. The oversized vehicle will cause deterioration to the neighbourhood while commercial vehicles are not commonly associated with residential usage. The Tribunal notes that no evidence of alleged risks, deterioration or safety issues were presented at the hearing by any participant or party.

THE PARTIES’ POSITION

8The Parties’ position is articulated through the testimony of Mr. Martindale.

1. He reviewed the application for minor variance and the accompanying documents. He also viewed the subject property from the street and examined the streetscape on both sides of Pine Grove Avenue north and south of the subject property, in order to obtain an appreciation of the character of the neighbourhood. Since the commercial vehicle in question was not parked on the driveway during any of his visits, he relied on photographs taken by Mr. Jaglall from his property to view the effect of the vehicle on the street.

2. He explained that the subject property is designated “Urban Residential Areas – Low Density Area” on the O P. R esidential uses, including home occupations, are permitted within this designation. He described the Pine Grove neighbourhood as “upscale” with generally large, two-storey homes on minimum 15 metre lots where the original subdivision in the area comprised mostly 10+ acre unserviced lots, but all of the original lots have been re-subdivided since then. Most of the original dwellings have been replaced in the past decade or so by much larger homes with double or triple car garages, extensive landscaping and mature trees. Pine Grove Avenue is now fully urbanized with a sidewalk on the west side. A local parkette is located to the north of the subject property where the street changes direction from north/south to east/west.

3. Mr. Martindale took the Tribunal through the section 45(1) Planning Act’s (“Act”) four statutory tests.

4. He opined that the Policies in the OP are generally applicable to the built and natural environment on a macro-scale and focus on land use, economic development, natural resources, sustainable development, heritage conservation, etc. The policies for subdivision design address the manner in which neighbourhoods are built and generally do not apply to the size of vehicles permitted on private driveways, but two policies could be considered relevant to the minor variance application in question.

• Policy 14.2 (Detailed Design Considerations/ Community Image) states that City Council shall:

a) Require that development at all scales creates, reinforces, and enhances distinctive neighbourhoods, nodes and corridors, and enhances the specific character of existing developments and neighbourhoods.

In this respect, the parking of a large commercial truck in a subdivision of quiet, tree-lined streets does not reinforce or enhance the distinctive character of Pine Grove Avenue. On the contrary, it could set an undesirable precedent if other vehicles of a similar size were allowed on individual driveways.

• Policy 14.8 (Streetscape Policy) states that ~~“~~City Council shall:

where possible, endeavour to ensure that street accessories such as mailboxes, telephone booths, signages, vending machines, refuse containers, bicycle racks and public and private above-ground utilities are designed to enhance the aesthetic qualities and character of streetscapes, and located to minimize physical and visual obstruction.”

He said that while this policy is not aimed at regulating the size of vehicles parked in driveways, it does indicate the City’s intention that nothing in the public right-of-way should distract from the aesthetics of streetscapes and that street furniture should minimize obstructions. In his opinion, it is logical to assume that the City intended, by regulating the size of private vehicles parked in driveways in the zoning by-law, to avoid the visual concerns that are mentioned in policy 14.8. On the basis of these two policies, Mr. Martindale would suggest that the minor variance does not entirely conform to the intent of the OP.

5. Mr. Martindale stated the ZBL stipulates the maximum height of a commercial vehicle parked in a residential lot is restricted to 2.6 metre and the maximum length is 6.7 metre. Mr. Martindale believes the intent of the ZBL in restricting the height and length of such vehicles was to retain the residential flavour of the streetscape and avoid an industrial-type appearance which could result if there were few or no restrictions. Having clear and distinct zones for residential and industrial uses ensures that residential neighbourhoods are not adversely affected by air and noise pollution caused by emissions from plants, factories and trucks, but are maintained as safe and healthy living environments for residents to enjoy. If the Appellant is permitted to park a commercial truck in his driveway, then a precedent is set for others to do the same. Accordingly, Mr. Martindale does not believe that the application meets the test of conformity to the intent of the ZBL.

6. In Mr. Martindale’s opinion, the key issue at stake in this appeal is the compatibility of large commercial vehicles with residential neighbourhoods. Obviously there is no problem with vans or panel trucks parked in driveways as one would see in any typical subdivision, but the presence of the Appellant’s vehicle detracts from the residential character of the streetscape. He believes that a study carried out by consultants for the Town of Whitby (Marshall Macklin Monaghan), and adopted by Council on June 13, 2011, is highly germane to this issue. The study examined, as part of a comprehensive examination of parking issues in residential areas, the question of whether commercial vehicles are appropriate in residential driveways. After analyzing the pros and cons of various truck sizes, the study made specific recommendations with respect to length, width, height and setback. Planning staff concluded as a result of the report that the maximum height permitted should be 2.6 metre (the same as Pickering’s standard) and the maximum length allowed should be 7.0 metre (Pickering’s maximum length is 6.7 m). In his opinion safety is also an issue. The length of the truck is slightly less than the width of the street, so that backing the truck into the Appellant’s driveway creates a temporary blockage to traffic and a visual hazard for oncoming vehicles.

7. Although there are cedar hedges on both sides of the driveway, he understands that these are actually on the neighbouring properties and could therefore be removed any time. Should this happen, the screening effect now provided would be lost.

8. He stated that the parking of a large commercial vehicle in an exclusively residential neighbourhood brings with it a sense of incompatibility and is not in keeping with the character of the streetscape (large homes on large lots with generous setbacks and high quality landscaping). In his opinion the variance is not desirable for the appropriate development of the land.

9. In percentage terms, the variances – which amount to 34.6% insofar as the height of the vehicle is concerned and 23.1% insofar as the length is concerned, are not minor. Nor are they minor in terms of impact, due to the fundamental difference between the normal or typical vehicle size on a residential driveway and this commercial vehicle. In conclusion, Mr. Martindale’s opinion is that the requested variance fails to meet the tests set out in section 45(1) of the Act, and therefore should be refused by the Tribunal.

9The Party, Ms. Kennedy testified that she recently moved from the City of Toronto with her family to this neighbourhood and found that the Appellants are being selfish in insisting on putting this large commercial vehicle in their driveway. She is a lawyer and works from the front of her home across from the Appellants’ house and she is forced to look at this large vehicle parked in the driveway of the Appellants. She stated that she only had one personal contact with Mr. Grignon when she first moved to her new home here. Such a large, commercial vehicle parked in the driveway is not in keeping with this neighbourhood and she has traffic and safety concerns for her children. The Party, Ms. Loussarian, generally echoed Ms. Kennedy’s view on the variance application in her submission.

THE APPELLANTS’ POSITION

10The Appellants request relief from the ZBL, as amended, to permit a commercial vehicle with a maximum height of 3.5 metres and a maximum length of 8.25 metres to be parked on a residential lot, whereas the By-law permits vehicles parked on any residential lot to be a maximum height of 2.6 metres and a maximum length of 6.7 metres. The Appellants request approval of this variance in order to permit the parking of a commercial vehicle used for the operation of a home-based business in a residential driveway.

11Ms. Ranger called Ms. Lima as a fact witness. Ms. Lima was voluntarily at the hearing. She was one of the signatories of the City Development Department report dated August 31, 2020 prepared for the COA’s consideration. The Tribunal did not qualify her to give opinion evidence on land use matters since she did not execute the acknowledgement of expert’s duty and Mr. Visheau had objected to any such qualification. The Tribunal notes that Ms. Ranger could have requested for a summons to be issued for Ms. Lima before the hearing which in this instance was not done. In examination, Ms. Lima confirmed that she co-authored the report, explained and confirmed the contents stated in the report. She stated that she reviewed the application against the statutory tests and considers the requested variance to be minor in nature, desirable for the appropriate development of the land, and in keeping with the general intent and purpose of the Official Plan and the Zoning By-law, and recommends approval of the proposed variance, in the report, subject to the following condition:

1. That this variance apply only to the 8.25 metre x 3.5 metre commercial vehicle, as generally sited and outlined on the Applicants’ submitted plans.

12Ms. Lima has visited the site to view the vehicle and explained that the subject site is designated Urban Residential Areas – Low Density Area. Home occupations are a permitted use within the designation.

13The subject site is zoned R4 within the ZBL, as amended. The Appellant currently parks an 8.25 metre x 3.5 metre commercial vehicle on the driveway, whereas the By-law permits vehicles that are a maximum of 6.7 metres x 2.6 metres. The intent of this provision is to accommodate vehicles commonly associated with residential uses while restricting the location, number and size of the vehicles in order to preserve and maintain the residential appearance of the neighbourhood.

14She stated that planning staff is of the opinion that the requested variance to permit a commercial vehicle with a maximum height of 3.5 metres and a maximum length of 8.25 metres to be parked on a residential lot is desirable for the appropriate development of land, maintains the intent and purpose of the Official Plan and Zoning By-law, and is minor in nature.

15Odessa Grignon (a nurse and frontline health personnel who the community at large admires and appreciates especially in these pandemic times) generally testified in support of her husband Andrew Grignon’s position. Ms. Grignon feels that some parties are objecting merely out of bad faith. Andrew Grignon testified at length in respect of his application, the basis for his request for relief from the ZBL, the rationale of the home based business and the supporting reasons for the expansion of the vehicle size.

16These are his rationale and his testimony in support of his application:

1. He has been in the office moving business for over twenty years.

2. His business caters to offices in the City, office buildings occupants and schools in the Municipality.

3. He has lived in Pine Grove Ave. for nine years and his business is a home based business.

4. Before buying his present vehicle, he owned a 1992 Safari Van and a 450 Cube Truck that he parked in his driveway. There were no complaints then. Those vehicles have been sold and he bought this current vehicle in order to expand his business operation. He acknowleged during cross examination that he did not check with the relevant authority whether his new vehicle would be permitted in his driveway before purchasing it.

5. He contends that Pine Grove Ave. is a relatively busy street with constant street activities, such as big trucks carrying out road works etc. and landscaping works being done by residents, often leading to road obstruction/narrowing of passable lane and so on. He showed photographs of such vehicles in Exhibit 1.

6. In showing the usual hustle and bustle of the road, Mr. Grignon appended and displayed several videos, exhibiting various sounds and noises of the neighbourhood such as the sports car revving; the grasscutter/mower whirring; his commercial vehicle’s engine throttling and general street sounds. He says his vehicle is no louder than any regular sounds on the road and area.

7. There were photographs that he took which showed where he parked the current vehicle, exhibiting the vehicle being parked well back in his front driveway, with vegetative screens on both sides of the left and right property line (which remains so at the date of hearing).

8. He provided videos of his driving skills and ability, demonstrating entry and reversing into and parking in the driveway. His vehicle is bought brand new, has a dashcam, rear cameras, reverse warning buzzer, a navigation system and wide angle rearview wing mirrors.

9. A bird’s eye view of the subject property was submitted to the City together with the application for variance where the vehicle measurements were confirmed from front to back by the staff as the correct measurements. He noted that the plan does not show the City section of the driveway which continues for another ten feet from the lot line before meeting the road. The City planner recommended and supported his application and he referred to that report.

10. Mr. Grignon stated that he sent an email to the City showing that there are vehicles in the City and the neighbourhood that are parked in properties’ driveways that are larger than his vehicle (page 101 Exhibit 1).

11. He furnished a large number of photographs of an assortment of vehicles from RVs to large commercial trucks similar or larger in size to his vehicle, that are shown parked in driveways in the City and in the vicinity and in residential areas which he said were two to five minutes drive from the subject property (pages 105-115 of Exhibit 1).

12. He explained that his typical workday, pre-pandemic, was from 7 a.m. to 7p.m. daily, when he would be away from the house, which means his vehicle will not be in the driveway during that time. Sporadically, he may be home during the workday to pick up something before continuing his work. He drives the vehicle himself and at times, depending on the contract, he will have up to ten people as his subcontractors. He has his son on his payroll.

17During cross-examination, Mr. Grignon acknowledged that the photographs of other vehicles were taken in the vicinity, in different areas and at different times, and it was done to back up his case that his application for a variance should be granted, as several properties in the City and neighbourhood were shown to have large and also larger vehicles in those driveways than what he has in his driveway. Some of those driveways are not even as deep as his driveway. He noted that if the vegetative cedar screens are removed by adjacent property owners, he could do replacement planting or fencing to provide screening of the vehicle. Mr. Grignon also acknowledged that there are no other large commercial vehicles parked on Pine Grove Avenue or in the immediate vicinity on a permanent basis and he is unsure the trucks parked in other driveways are authorized to do so.

ANALYSIS AND DECISION

18In this matter, no party furnished any study/report that adverted to traffic matters; risks to safety in the community and to pedestrians, in the neighbourhood. All non relevant and non planning matters are disregarded by the Tribunal.

19The Tribunal finds that this matter presented a number of unique challenges which are present in the particular facts of this case. The minor variance application pertains to the measurements and dimensions of a vehicle. This is then tied to a home based business at the subject property as the vehicle’s parking location is on the subject property’s driveway. Only one qualified expert witness has given opinion evidence on land use planning matters. The Tribunal is persuaded by and accepts the land use opinion evidence of Mr. Martindale (which withstood cross-examination).

20The issue for the Tribunal is whether the proposed variance application will be consistent with the PPS, has regard to provincial interests, and whether the variances requested meet the statutory tests set out in section 45(1) of the Act.

21The Tribunal is not satisfied that the proposed variance at the subject property has regard for the matters of provincial interest as set out in section 2 of the Act in particular section 2(p) the appropriate location of growth and development. 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 not satisfied that the variance application is consistent with the PPS.

22An Applicant must satisfy the Tribunal that the four tests in section 45(1) of the Act are met with: i.e. that the variance maintains the general intent and purpose of the Official Plan and the Zoning By-law, is desirable for the appropriate development or use of the land building or structure and is minor in nature.

CITY OF PICKERING OFFICIAL PLAN (OP)

23The City’s policy in relation to the subject property designated as Urban Residential Area on Schedule I, s. 3.9 states: City Council (a) shall recognize as Urban Residential Areas on Schedule I, those areas in the City intended primarily for housing and related uses and activities, including group homes and home occupations; (b) may zone lands designated Urban Residential Areas for one or more purposes as set out in Table 8, and in so doing will apply the appropriate performance standards; restrictions and provisions, including those set out in Table 9; (c) in establishing performance standards, restrictions and provisions for Urban Residential areas, shall have particular regard to the following:(i) protecting and enhancing the character of established neighbourhoods, considering such matters as building height, yard setback, lot coverage, access to sunlight, parking provisions and traffic implications.

24Mr. Martindale adduced expert evidence demonstrating that the application did not meet any of the four tests under section 45(1) of the Planning Act:

25The Tribunal agrees with Mr. Martindale and finds that the variance does not maintain the general intent and purpose of the OP. The parking of a large commercial truck in a subdivision of quiet, tree-lined street does not reinforce or enhance the distinctive character of Pine Grove Avenue. The OP has established performance standards in Urban Residential Areas with respect to parking and it is reasonable to expect that the character of an established neighbourhood such as this one is to be protected. Although Mr. Grignon went to extraordinary lengths in taking pictures and videos to demonstrate the sounds, sights and trucks placements in different driveways in varied vicinities, these do not constitute planning evidence. In particular, photographs of large trucks being parked at driveways do show the fact of parking, however, that is not evidence that the trucks have the approved dimensions and are authorized under the bylaw to be parked at a particular property’s driveway. For the Appellant, specifically, no planning evidence was presented in respect of the Pine Grove Avenue neighbourhood area.

26The Tribunal finds that the variance does not maintain the general intent and purpose of the ZBL and finds that the intent of the zoning by-law in restricting the height and length of such vehicles is to retain the residential flavour of the streetscape and avoid an industrial-type appearance which could result if there were few or no restrictions. It is the purpose of zoning to have clear and distinct zones for residential and industrial uses. This is to ensure that residential neighbourhoods are not adversely affected by air and noise pollution from emissions of factories and commercial vehicles. The Appellant’s larger commercial vehicle was purchased for the ostensible purpose of expanding the home based “moving business”. Such a large commercial vehicle that exceeds the permitted dimensions of the ZBL will fit in more comfortably in a commercial or industrial zone. In the current residential setting, the dimensions of height and length of the vehicle (that do not conform to the performing standards of the ZBL) are not compatible with this area.

27The Tribunal finds that the variance is not desirable for the appropriate use of the land. The parking of a large commercial vehicle in an exclusively residential neighbourhood brings with it incompatibility and is not in keeping with the character of the streetscape and this established neighbourhood. To be clear, a home-based business is a permitted use and is not prohibited on the subject property. A vehicle with the compliant height (2.6 m) and length (6.7 m) dimensions is permitted as of right. It is the variance application for the taller and longer commercial vehicle that is to be parked on site, at the front driveway, that is not desirable for the appropriate use of the subject property.

28The Tribunal finds that the variance is not minor in nature. The variance on the vehicle’s height amounts to an increase of 34.6 % (from 2.6 m to 3.5 m) and an increase of 23.1% (from 6.7 m to 8.25 m) for the vehicle’s length. These on their own may seem insignificant but when viewed as a complete commercial truck, such height and length, coupled with the width, lead to a large size commercial vehicle. In terms of impact on the streetscape, there is a fundamental difference between the normal or typical vehicle size on a residential driveway and this large commercial vehicle. The proposed variance is not in keeping with the residential character of the neighbourhood. There is a possibility that the vegetative screens on both adjacent properties could subsequently be removed. In that situation, the large commercial vehicle will have increased adverse impact on the adjacent properties and the streetscape.

29It should be noted that the representative for the Appellants contended that a rejection of the variance application will send a negative message that home-based businesses are not encouraged or supported. The City permits home-based businesses. The ZBL permits vehicles of certain dimensions to be parked at residential driveways presumably for the home based businesses. The rejection of the vehicle variance does not mean that the home business is proscribed. The Appellants’ home based business is intact. The conflagration of these two matters is unfortunate.

ORDER

30The Tribunal Orders that the appeal is dismissed and the variance to Zoning By-law No. 3036 is not authorized.

“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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.