Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 15, 2022

CASE NO(S).: OLT-21-001051

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

Applicant/Appellant: Lephoung Lu & Themich Luong

Subject: Minor Variance

Property Address/Description: 566 West Shore Boulevard

Variance from By-law: By-law No. 2511, as amended by By-law No. 7610/18

Municipality: City of Pickering

Municipal File No.: P/CA 34/21, P/CA 35/21

OLT Lead Case No.: OLT-21-001051

OLT Case No.: OLT-21-001051, OLT-21-001052 OLT Case Name: Lu V. Pickering (City)

Heard: November 3, 2021 Via Video Hearing

APPEARANCES:

Parties	Counsel
Lephoung Lu & Themich Luong	Jessica Karban
Paul White	Self represented

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on November 3, 2021 to consider the appeal by Lephpoung Lu and Themich Luong (“Appellant”) of 566 West Shore Blvd. for the decision of the City of Pickering (“City”) Committee of Adjustment (“COA”) made on May 12, 2021 to refuse the minor variance.

2The Appellant is seeking relief from Zoning By-law No. 2511, as amended by By-law No. 7610/18 under s. 45 of the Planning Act, R.S.O 1990 c. P.13 (“Act”), to permit a minimum lot frontage of 10.6 meters, whereas the By-law requires a minimum lot frontage of 15 meters. The appellant sought approval in efforts to sever the property and construct two detached dwellings.

3There are two minor variance applications, one for each of the proposed lots (City file numbers P/CA 34/21 & P/CA 35/21).

4The COA are refused the application.

NEIGHBOURHOOD CHARACTERSITICS

5The subject property is located at 566 West Shore Blvd., with a current lot frontage of 21.8 m and occupied by an existing 1 storey single family detached home across from Rotary Frenchman’s Bay West Park – a large waterfront green space and natural area that occupies the whole eastern frontage of West Shore Boulevard south of Sunrise Avenue to the Lake.

6The Tribunal heard that the West Shore Neighbourhood is a well established and desirable residential community with many single-family dwellings. The area is undergoing significant renewal and re-investment.

7The Tribunal further heard that the West Shore Neighbourhood was identified by the City as part of its Infill and Replacement Housing in Established Neighbourhoods Study as 1 of 9 Focus Neighbourhoods where most of the City’s infill and replacement housing has recently been built. This resulted in the specific urban design guidelines for new infill which were published in August 2020.

EVIDENCE AND SUBMISSIONS

8The Tribunal heard opinion evidence from one witness: Adrian Litavski, a Partner and Planner at Johnston Litavski Ltd., on behalf of the Appellant. Mr. Litavski was qualified with no objections and affirmed to provide evidence in the area of land use planning.

9Mr. Paul White of the Fairport Beach Neighbourhood Association was granted Party Status with no objections.

PLANNING EVIDENCE

10The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests in s. 45(1) of the Act.

11Mr. Litavski informed the Tribunal that the central focus of his evidence relates to the appropriateness of the variance for the neighbourhood character.

12Mr. White focused solely on the notion that the relief of the variance was not minor in nature and submitted to the Tribunal of a copy of the Corporation of the Township of Pickering By-Law No. 2719 being the By Law to amend By-Law No. 2511 dated the July 20, 1962.

ANALYSIS

Existing Site and Building

13Mr. Litavski informed the Tribunal that the Site is municipally known as 566 West Shore Blvd. in the City of Pickering.

14The Site fronts onto the west side of West Shore Blvd., and has a frontage of 21.28 m.

15The Site is a single lot and is developed with a 1-storey detached residential building and an asphalt driveway along the northern lot line, with no garage.

Study Area – Geographic Neighbourhood

16Mr. Litavski informed the Tribunal that there are many examples throughout neighbourhood of recent tear downs & rebuilds with a variety of lot shapes and sizes within the surrounding neighbourhood.

17Mr. Litavski further mentioned that the Site has the greatest frontage of all the lots in the block bounded by West Shore Blvd., Surg Ave., Marksbury Rd. & Tullo St. and that there are no properties in the block that have such large frontages.

18The Tribunal was informed that there are also numerous examples of other existing lots within the neighbourhood with reduced frontages – particularly within the immediate context.

19The three lots immediately south of the Site (564, 562 & 560 West Shore Blvd.) are all of frontages of approximately 9 m. The two lots immediately north each have frontages of approximately 12 m.

Purpose of the Variance Requested

20Mr. Litavski informed the Tribunal that the Appellant intends to sever the Subject Lands and to build a new single-family home on each of the new parcels. The only variance required to permit both the severance and the proposed homes is the lot frontage variance and that the proposed lots and homes comply with all other zoning standards.

21The Tribunal heard only one variance being requested for each of the new proposed properties in order to facilitate the subsequent severance application:

City File No. PCA 34/21 (Part 1 on Site Plan)

• Minimum lot frontage of 15 metres required (By-law No. 2511, Section 10.2.1);

• Minimum lot frontage of 10.6 metres Proposed.

City File No. PCA 35/21 (Part 2 on Site Plan)

• Minimum lot frontage of 15 metres required (By-law No. 2511, section 10.2.1);

• Minimum lot frontage of 10.6 metres Proposed.

22Mr. Litavski stated that there are no other variances required to permit either the new proposed lots, or the proposed new homes.

Provincial Policy Statement, 2020

23Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS.

24Mr. Litavski opined given the very high level and strategic nature of Provincial Plans and policies, it is very difficult to point to broad policies of the PPS and Growth Plan with respect to small minor variance applications such as this one.

25Mr. Litavski further directed the Tribunal that in policy 1.1.1(B) of the PPS states that:

Healthy, livable and safe communities are sustained by … accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons) … to meet long-term needs;…

26Mr. Litavski further opined to the extent that the application engages the policies of the PPS, the proposal is consistent.

Growth Plan for the Greater Golden Horseshoe 2019

27Section 3(5) of the Act directs that a decision of this Tribunal with respect to any planning matter shall conform and not conflict with the relevant policies of the Growth Plan. The official plans of municipalities and regions in the Greater Golden Horseshoe Growth Plan area must also conform to the Growth Plan.

28Mr. Litavski opined that the Growth Plan’s overall intent and direction to encourage complete communities and compact urban form through greater levels of intensification within the existing built-up area.

29Mr. Litavski further opined to the extent that the application engages the policies of the Growth Plan, the proposal conforms.

LEGISLATIVE TESTS

30The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant, notwithstanding that the COA authorized the variances. The tests require that that the variances:

a. maintain the general intent and purpose of the OP;

b. maintain the general intent and purpose of the ZBL;

c. be desirable for the appropriate development or use of the land, building or structure; and

d. be minor in nature

Maintain the general intent and purpose of the Regional OP

31Mr. Litavski informed the Tribunal that City Staff acknowledge in their May 12 report that the variances and proposal comply with the Official Plan. The City states that this minor variance test is met by the application.

32Mr. Litvaski stated that more specifically, the use is permitted by the OP, the proposal complies with the plan’s Housing (Chapter 6) and Community Design (Chapter 9) policies, as well as with the more specific Neighbourhood Policies for Neighbourhood #2 – West Shore Neighbourhood as set out in Chapter 12. Lastly the Proposal complies with and works to implement the policies of Chapter 14 - Detailed Design Considerations.

33Mr. Litavski further directed the Tribunal that Council adopted “Urban Design Guidelines For Infill And Replacement Housing In Established Neighbourhood Precincts,” which include specific guidelines for new infill housing within the West Shore Neighbourhood. City Staff reviewed the proposal against these guidelines and determined it meets all relevant requirements.

34Mr. Litavski opined that the requested variances meet the general intent and purpose of the Official Plan.

Maintains the General Purpose and Intent of the Zoning By-law

35The Site is zoned Zoned R4 by Zoning By-law No. 2511, as amended.

• Low density residential zone – One-family detached dwellings permitted.

36Only one variance is required for each new lot. The proposed lots and new dwellings comply with all other zoning standards and requirements.

37The general intent and purpose of the minimum lot frontage requirement is to:

• preserve and reflect the low-density lotting pattern of the West Shore Neighbourhood;

• preserve and reinforce the rhythm of homes along the street and the spaces between them; and,

• facilitate the low-rise single-family built form of the neighbourhood.

38Mr. Litavski stated to the Tribunal there are several examples of existing lots that do not meet this minimum by-law standard throughout the neighbourhood. More importantly, the Subject Lands have the largest frontage of their block and are immediately bordered by three lots to the south which have approximate 9 m frontages and two lots to the north that have approximate 12 m frontages. There are two more reduced lots a short distance south at the corner of West Shore Blvd & Surf Avenue (546 West Shore Blvd. has a frontage of approximately 9.5 m, and 538 West Shore has a frontage of approximately 12 m).

39Mr. Litavski opined that within the immediate context the Subject Lands’ 21.28 m frontage is the “odd man out”

40Within the recommendation report, City Staff dismiss these facts because the existing reduced lots pre-date the by-law and the current lot frontage requirement.

41Mr. Litavski opined that he disagrees with this approach. This is merely the neighbourhood context. He further opined you cannot ignore the facts on the ground – i.e., the existing lot pattern – when assessing the By-law’s intent to preserve a neighbourhood’s lotting pattern and character. The existing lots form part of that character – particularly within the block that the Subject Lands lie within.

42Mr. Litavski opined allowing the variance will facilitate a more consistent and regular lotting pattern along the West Shore Blvd. frontage between Tullo Street and Surf Avenue while also allowing appropriate infill housing and an improved/renewed housing stock.

43Mr. Litavski further stated to the Tribunal any concern about reduced lots in the immediate context is mitigated by the fact that there are no homes along the eastern frontage of West Shore Blvd. The entire easter frontage south of Sunrise Avenue is occupied by Rotary Frenchman’s Bay West Park.

44Mr. Litavski opined that the requested variances meet the general intent and purpose of the Zoning By-law.

Desirable for the Appropriate Development of the Lands or Use of the Property

45The Tribunal was informed that City staff agreed that this Test was satisfied. Specifically, they note the proposal conforms to the City’s own urban design guidelines for the West Shore Neighbourhood, and that the proposed homes will form an acceptable part of an established streetscape along West Shore Boulevard by maintaining consistent front yard setbacks, appropriate dwelling heights, dwelling depths and lot coverage. The resulting building mass is appropriate and in keeping with the neighbourhood.

46The Tribunal further heard that Staff also specifically state “…the subject property is located between lots having reduced lot frontages of between 9 & 12 m. As such, Staff is of the opinion that the proposed lot frontages of 10.6 m would result in appropriate development of the land.”

47Mr. Litavski clarified for the Tribunal that there is an apparent contradiction between City’s Staff’s assessment of the “General Intent & Purpose of the Zoning By-law” test, and their assessment of the “Appropriateness” test. While they cite the reduced frontages of the neighbouring properties in determining that the proposed lots are appropriate, they choose to ignore them in their analysis of the general intent and purpose of the zoning by-law.

48Mr. Litavski opined that the frontages should be ignored just because they may predate the zoning provision in question. Rather, the desire to maintain the neighbourhood’s character is a key factor in evaluating both tests and not one that should be ignored in one case but relied upon in the other.

49Mr. Litavski further opined in evaluating appropriateness, the frontage variance is the only zoning relief required. The new lots will easily accommodate the proposed single-family homes.

50Mr. Litavski opined that the requested variances are desirable for the appropriate development or use of the property.

Minor in Nature

51Mr. Litavski informed the Tribunal that the City’s position is simply that the variance is not minor in nature because it will result in a lotting pattern that is different from the majority of lots within the established residential neighbourhood.

52Mr. Litavski opined that the City’s position is simply not true.

53The Tribunal heard through Mr. Litavski that within minor there are three parts:

Size

54The Appellants are requesting a 4.4 m reduction from the minimum 15 m lot frontage requirement. However, while the amount of the variance should be considered, the question of whether a variance is ‘minor’ is not simply a numbers game. When considering the immediate context, the proposed 10.6 m lot frontage is entirely in keeping with the frontages of the adjacent properties.

Importance

55“Importance” relates to whether a minor variance is appropriate vs. re-zoning. The given facts are not reasonable to require full rezoning.

56Mr. Litavski presented to the Tribunal other recent Committee of Adjustment decisions within the surrounding neighbourhood.

PCA0112/15 – 539 Park Cres.

• Recognize existing frontage of 12.19 m to allow the construction of a new home;

• Approved.

PCA011/17 – 538 West Shore Blvd.

• Permitted a reduce frontage of 12.1m to facilitate construction of a new home;

• Approved.

PCA045/20 – 520 West Shore Blvd.

• Application to permit a frontage of 7.6m;

• Still open and under review. No decision yet.

57Mr. Litavski opined that this history shows that the COA has entertained reducing lot frontages via minor variance within the surrounding area when and where appropriate.

Impact

58Mr. Litavski opined that Permitting the proposed lot frontages will have no adverse impacts on adjacent properties and:

• Consistent with the character of the neighbourhood, particularly the immediate context;

• Won’t set a precedent;

• No other lots in the block with such large frontage that would enable such a severance;

• Faces the park;

• No traffic impacts identified by City staff. We agree that there are no traffic impacts from the proposed variance.

59The proposed variance will result in new development that City Staff have already agreed is appropriate for the development and use of the lands.

60Mr. Litavski opined that the requested variances are minor.

FINDINGS

61The Tribunal accepts Mr. Litavski’s evidence and finds that the minor variances have appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan.

62The Tribunal finds the requested variance meets the four tests of s. 45 (1) of the Act and:

a. the general intent and purpose of the OP is maintained;

b. the general intent and purpose of the ZBL is maintained;

c. the variance is considered desirable for the appropriate development of the land; and

d. the variance is minor in nature.

ORDER

63THE TRIBUNAL ORDERS that the appeal is allowed and the variance(s) to Zoning By-law No. 2511, as amended by By-law No. 7610/18 By-law No. are authorized.

“Carmine Tucci”

CARMINE TUCCI

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.