Woodland et. al. v. Mississauga (City), 2022 CanLII 115394

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 29, 2022

CASE NO(S).: OLT-22-003198

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

Appellant: Cindy Woodland et. al.

Applicant: Allan and Dimple Madan

Subject: Minor Variance

Description: To permit a new two-storey dwelling

Reference Number: A211/21

Property Address: 320 Indian Valley Trail

Municipality/UT: Mississauga/Peel

OLT Case No.: OLT-22-003198

OLT Lead Case No.: OLT-22-003198

OLT Case Name: Woodland et. al. v. Mississauga (City)

Heard: in writing

APPEARANCES:

Parties	Counsel
Cindy Woodland	Raj Kehar
Charles Michaud	Raj Kehar
Allan and Dimple Madan	Meredith Baker

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1Allan and Dimple Madan ("Applicants") are the registered owners of the property municipally known as 320 Indian Valley Trail ("Property") in the City of Mississauga ("City").

2The Property is designated Greenlands and Residential Low Density I, in the City’s Official Plan (“City OP”). It is zoned R2-4 and R2-5 - Residential in Zoning By-law No. 0225-2007.

3The Applicants seek to construct a new two storey dwelling on the Property that requires variances to the Zoning By-law related to gross floor area, dwelling depth, balcony area and projection, building and accessory building height, driveway regulations and a walkway attachment ("Variances").

4On December 2, 2021, the Committee of Adjustment for the City ("Committee") granted the Variances.

APPEAL

5The Committee's decision was appealed by William Fanjoy, Tom Masney, Margaret McKillop, Charles Michaud, Lark Reed-Masney and Cindy Woodland.

6William Fanjoy, Tom Masney, Margaret McKillop and Lark Reed-Masney have since withdrawn their appeals.

7The remaining Appellants, Cindy Woodland and Charles Michaud, subsequently pursued their appeals jointly.

EXHIBITS

8The Exhibits listed below form the basis of the evidence submitted and examined for the hearing of the matter:

• Exhibit 1: Sworn Affidavit of Franco D. Romano sworn and dated August 4, 2022;

• Exhibit 2: Revised List of Variances (included as Schedule "A" to the Minutes of Settlement); and,

• Exhibit 3: Revised Site Plan and Elevation Plans (included as Exhibit C to the Affidavit).

9Exhibits 2 and 3, now referred to as Attachments 1 and 2, are attached hereto and form part of this Order.

SETTLEMENT

10At the originally scheduled hearing in July 2022, the Tribunal converted the merit hearing to a written hearing at the request of Counsel for the Applicants on consent, in order to enable the Parties to finalize a settlement.

11The Parties subsequently reached a settlement and submitted to the Tribunal Written Submissions and Evidence of the Applicants, which included executed Minutes of Settlement and the Affidavit of Franco D. Romano, planning consultant for the Applicants, sworn and dated August 4, 2022 (Exhibit 1). The submissions included a revised list of variances (Exhibit 2) and revised building plans (Exhibit 3) agreed to by all Parties and opinion evidence of Mr. Romano supporting the minor variances as revised (included in Exhibit 1).

LEGISLATIVE FRAMEWORK

12Despite the Parties having achieved a settlement of the issues, it is incumbent upon the Applicants to demonstrate that the legislative tests have been addressed and it is incumbent upon the Tribunal to be satisfied that the policy framework supports the variances.

13The Tribunal must have regard for matters of Provincial interest as set out in s. 2 of the Planning Act (“Act”) and must have regard for the decision of the municipal council and the material considered by council in making its decision, as set out in s. 2.1 (1) of the Act.

14Section 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter shall be consistent with the Provincial Policy Statement, 2020 ("PPS") and shall conform with the applicable provincial plans, in this case the Growth Plan for the Greater Golden Horseshoe, 2019 ("Growth Plan").

15For a variance to the Zoning By-law, the Tribunal must find that each variance meets each of the four tests set out in s. 45(1) of the Act. Specifically, the Tribunal must find that each variance maintains the general intent and purpose of the by-law and of the official plan, is desirable for the appropriate development or use of the land, building or structure, and is minor in nature.

WITNESSES

16The Parties jointly submitted written material from Mr. Romano, a land use planner and Principal at Action Planning Consultants. Upon review of his Curriculum Vitae and Acknowledgement of Expert's Duty (included in Exhibit 1), Mr. Romano is hereby qualified to assist the Tribunal by providing expert opinion evidence in the area of land use planning through his written submissions.

ISSUES AND ANALYSIS

17By way of the settlement, all issues and grounds for appeal expressed by the Appellants have been addressed through an agreed reduction in building height of 0.3 metres (“m”) from what was approved by the Committee, and related revisions to the Site Plan and Elevation Plans. As such, the revised variances, included as Exhibit 2 and listed below, are to the satisfaction of both the Appellant and the Applicant:

1. A gross floor area - infill residential of 871.29sq.m (approx. 9377.52sq.ft)
2. A dwelling depth of 21.03m (approx. 69.00ft)
3. An balcony area of 19.37sq.m (approx. 208.50sq.ft)
4. A balcony projection beyond the garage face of 1.52m (approx. 4.99ft)
5. A building height measured to the eaves (from average grade) of 9.21m (approx. 30.20 ft)
6. A building height measured to a flat roof of 9.97 m (approx. 32.69ft)
7. A driveway width of 16.46m (approx. 54.00ft)
8. Two driveways
9. A setback measured from a lot line to the driveway of 0m
10. A building height of an accessory structure of 5.51m (approx. 18.20ft)
11. A hammerhead driveway on a lot with a lot frontage less than 15.0m (approx. 49.21ft)
12. Dimensions of a hammerhead driveway of 6.0m x 14.0m (approx. 19.68 x 45.92ft), and
13. A walkway attachment of 3.68m (approx. 12.07ft).

18The Tribunal has reviewed Mr. Romano's uncontested planning evidence included in his Affidavit (Exhibit 1). Mr. Romano opines that the variances, as approved by the Committee, "largely deal with technical site and design layout conditions", that the "neighbourhood is a well vegetated area consisting of large to estate sized lots", that the "proposed dwelling is located within the permitted building setbacks regulated by the ZBL. Front, rear and side yard setbacks are all well in excess of the minimum ZBL requirements" and that "[s]ubstantial landscaping is preserved around the proposed dwelling, particularly along the property lines".

19Mr. Romano further opines that the variances "result in a two storey dwelling which is compatible in built form and scale to the area, satisfies all four tests for a minor variance and represents good planning". He further concludes that the revised variances "reflect a minor amendment for which no further notice is required pursuant to the Planning Act, Subsection 45(18.1.1)" and that the variances "represent good planning and should be authorized, subject to a condition that the dwelling be constructed substantially in accordance with the site plan and building elevations". The referenced site plan and building elevations are as attached as Exhibit 3.

FINDINGS

20Section 2 of the Act requires that the Tribunal, in carrying out its responsibilities, has regard to matters of provincial interest. The Tribunal agrees with the opinion of Mr. Romano, in his Affidavit, that the revised minor variances have regard to all relevant matters of provincial interest including those related to the protection of ecological systems, the adequate provision and efficient use of infrastructure systems, the orderly development of safe and healthy communities and the appropriate location of growth and development.

21In the consideration of applications related to a planning matter, s. 3(5) of the Act requires decisions to be consistent with the PPS and in conformity with the Growth Plan. Both the PPS and Growth Plan direct new development to settlement areas, while efficiently utilizing land and infrastructure. The variances are to facilitate the development of a new house on an existing lot that is within the settlement area and on full municipal services. The Tribunal agrees with the opinion of Mr. Romano in his Affidavit and finds that the variances, individually, collectively, and subject to the condition imposed by the Committee that the dwelling be constructed substantially in accordance with the revised Site Plan and Building Elevations, are consistent with the PPS and conform to the Growth Plan in accordance with s. 3(5) of the Act.

22Section 45(1) of the Act requires that each variance to a zoning by-law meets each of the four tests set out in the Act. Specifically, the Tribunal must find that each variance maintains the general intent and purpose of the by-law and of the official plan, is desirable for the appropriate development or use of the land, building or structure, and is minor in nature. The Tribunal agrees with the opinion of Mr. Romano, in his Affidavit, that all four tests are met for each variance.

23Pursuant to s. 45 (18.1.1) of the Act, the Tribunal finds that the amendment to the original application resulting in the reduced building height variances is minor and that no further notice is required.

24Further, pursuant to s. 2.1(1) of the Act, the Tribunal has regard for the matters considered by the Committee (including the submissions made by the neighbours and the staff report) and the decision of the Committee with respect to the original variances.

ORDER

25THE TRIBUNAL ORDERS that the appeal is allowed in part and the variances to By-law No. 0225-2007, as revised in Attachment 1, are authorized subject to the condition that construction of the proposed development be substantially in accordance with the revised Site Plan and Building Elevations included in Attachment 2.

“C.I. Molinari”

C.I. MOLINARI 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.

ATTACHMENT 1

ATTACHMENT 2