Taheri v. Vaughan (City), 2022 CanLII 122412

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2022

CASE NO(S).: OLT-22-003926

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

Applicant/Appellant: Mohsen Taheri

Subject: Minor Variance

Description: Five variances in order to construct a second storey addition to the residential dwelling.

Reference Number: A231/21

Property Address: 15 Shasta Drive

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-003926

OLT Lead Case No: OLT-22-003926

OLT Case Name: Taheri v. Vaughan (City)

Heard: December 2, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Mohsen Taheri	Christopher Tanzola
City of Vaughan	Zaynab Al-waadh

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON DECEMBER 2, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is the appeal filed by Mohsen Taheri (“Applicant/Appellant”) against the decision of the City of Vaughan (“City”) Committee of Adjustment (“COA”) to deny an application for Minor Variances (“MV”) from Zoning By-law No. 1-88 (“ZBL 1-88”) and Zoning By-law No. 001-2021 (“ZBL 001-2021”) concerning 15 Shasta Drive (“subject property” / “subject site”).

2The subject site is located at the southeast corner of Shasta Drive and Bunker Road in the Thornhill area of the City, on the west side of Yonge Street, south of Longbridge Road, and is developed with a one-storey, single detached dwelling with an attached covered pool. It has 25.18 metres (“m”) of street frontage, a lot area of 1,151.35 square metres (“m²”) and is zoned R1V Residential Old Village Zone in ZBL 1-88 and R1E (EN) First Density Residential Zone in ZBL 001-2021.

3The immediate neighbourhood is part of an Established Large-Lot Neighbourhood that consists of one- and two-storey single detached dwellings on large lots. The area was developed in the 1960's with upgrades through renovations and new builds/replacement homes.

4The subject property’s lot coverage is 31.18% under ZBL 1-88 and 35.61% under ZBL 001-2021. This condition has existed since 1974 when permission was granted to enclose the pool.

THE PROPOSED DEVELOPMENT

5The Applicant is proposing to construct a partial second floor addition on top of the existing dwelling, and to renovate the existing main floor of the dwelling and is requesting the Tribunal to authorize the following MVs:

a. To ZBL 001-2021:

1. To permit a minimum exterior side yard of 6.4 m, whereas 9.0 m is required;

2. To permit a maximum lot coverage of 35.61%, whereas 23% is permitted.

b. To ZBL 1-88:

3. To permit a minimum exterior side yard of 6.4 m whereas 9.0 m is required;

4. To permit a portion of the driveway between the street line and the street curb to be a maximum of 9.0 m wide, whereas 6.0 m is permitted;

5. To permit a maximum lot coverage of 31.18%, whereas 20% is permitted.

6The COA has approved MV 1, 3, 4 and has refused MV 2 and 5.

LEGISLATIVE FRAMEWORK

7An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been satisfied:

a. the intent and purpose of the official plan is being maintained;

b. the intent and purpose of the zoning by-law is being maintained;

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

d. the variance(s) is minor in nature.

8In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.

HEARING

9Michael Manett is the Registered Professional Planner, who appeared on behalf of the Applicant before the Tribunal. After review of Mr. Manett’s professional qualifications and confirmation of his Acknowledgment of Experts Duty, the Tribunal qualified Mr. Manett to provide expert testimony in the area of land use planning.

10Mr. Manett described the character of the neighbourhood as consisting of many large two-storey dwellings mixed in with bungalows with relatively large lots. The area was initially developed in the 1960's with upgrades, through renovations and new builds/replacement homes, as can be found in Exhibit 3.

11Mr. Manett explained that the existing one storey dwelling was built in the 1960's before either of the ZBLs were in place. The proposed addition represents only 52% of the area of the existing first floor. The proposed development maintains the existing footprint of the dwelling; therefore, no change was sought for any building setback, lot coverage or to any yard setbacks. Thus, lot coverage and setbacks are existing legal non-compliant conditions. The height of the proposed addition is compatible with the ZBLs; thus, no variance is required for the building height.

12In his testimony Mr. Manett reviewed the applicable provincial planning instruments and concluded that the proposed development has regard for the Act, is consistent with the Provincial Policy Statement 2020 (“PPS”) and conforms to The Growth Plan for the Greater Golden Horseshoe, 2006 (“GP”).

13Mr. Manett went through the applicable policies of the City of Vaughan Official Plan (“VOP”). More specifically through policies 2.2.3, 2.2.3.1, 2.2.3.2, 9.1.2.2, 9.1.2.3, 9.2.2.1 and 9.2.3.1 that are calling to respect and to reinforce the existing physical character and uses of the surrounding area and for a renovation and reinvestment into the existing housing stock, among others. He brought the Tribunal’s attention to policy 9.1.2.3 h:

Policy 9.1.2 .3 h, regarding lot coverage, speaks to ensuring opportunities for generous amenity and landscaped areas, not to coverage as a specific numerical requirement. No existing amenity areas on the property are impacted by the proposed development. The pool amenity, which utilizes a significant part of the site coverage, was covered 50 years ago and has been part of the dwelling footprint on the property since that time. The proposed dwelling, incorporates the same dwelling footprint without utilizing any additional landscaped area and through the reduction of the hard surface driveway and replacement of that area with soft landscaping, the actual landscaped area is increased. This supports the intent of Policy 9.1.2.3 h.

14Mr. Manett further pointed out:

The Staff Report fails to adequately address that there is no physical change to the existing building footprint being proposed, therefore there is no physical change to the coverage either. The only physical change to the property is the partial addition to the second floor to add a 165.7sq.m. (1,783.64 sq. ft.) of living space above the existing habitable space on the first floor of the dwelling.

15Mr. Manett summarized that the proposed lot coverage does not create a conflict with the policies directing development within Established Large-Lot Neighbourhoods and that the proposed variances maintain the general intent and purpose of the VOP.

16Mr. Manett explained that the subject property is zoned as R1V Residential Old Village Zone under ZBL 1-88 and R1E (EN) First Density Residential Zone under the City’s new Comprehensive ZBL 001-2021. Single detached dwellings are allowed under these ZBLs. He also noted that the City Staff Report did not take into the consideration that the lot coverage for the existing dwelling of 30%, was approved and in place since 1974, and was established under ZBL No. 2523, which preceded both ZBL 1-88 and ZBL 001-2021. Mr. Manett further explained that if only the area of the existing dwelling without the pool was taken into account, the lot coverage would be 18%. Under the current ZBL the permitted lot coverage for a one-storey dwelling is 23% and for a two-storey dwelling the required lot coverage is 20%.

17Mr. Manett stated that there has been no change to the building footprint since the pool was enclosed in 1974. However, as a result of the historical change from ZBL No. 2523 to ZBL 1-88 and to ZBL 001-2021, the lot coverage has changed from 30% to 31.18% to 35.61%.

18When it comes to the width of the driveway, Mr. Manett explained that the existing width of the driveway of 11 m has been in place since the 60's/70's. In his opinion while the requested variance for the driveway is in excess of the width that is currently permitted by the ZBL, the proposed redevelopment of the dwelling will provide an opportunity to reduce the hard surface of the driveway and replace its portion with soft landscaping. Thus, the existing condition is being improved.

19Mr. Manett stated, that according to the Planning Department Report, the support appears to be tied to the dwelling remaining as a one storey dwelling. Mr. Manett disagrees with the interpretation of the Planning staff that the proposed development will create a dwelling massing not contemplated by either the applicable zone or would alter the existing character of the surrounding area. In his view:

The dwelling massing incorporates a partial second floor in a neighbourhood with many large two storey dwellings. Clearly two storey dwellings are contemplated and permitted by the applicable zoning by-laws. The construction of the partial second floor addition will result in a modern, updated dwelling that will fit within the character of the surrounding area and will be compatible with the immediate and larger surrounding neighbourhood. The existing building coverage, which is not being altered, has formed part of this neighbourhood character since the 1970's and two storey dwellings have also formed part of this neighbourhood and represent the character of the area. There is no change to the low-density, large lot character of the area and no change to the amenity and landscaping areas of the subject property.

20Mr. Manett opined that the proposed partial second floor addition, with the associated maintenance of the existing coverage, setbacks and driveway width is minor in nature and maintains the general intent and purpose of the ZBLs.

21In the professional opinion of Mr. Manett, the proposed development is the appropriate use of land. In the evidence outlined Mr. Manett stated:

Generally, the variances requested are technical and confirm the existing built situation. No change to the building footprint is proposed. No variances related to the height or other built form requirements of the applicable ZBLs are required. There will be no undesirable adverse impacts created by the second storey addition and there has been no opposition to the proposed development from any neighbours. The proposed second floor addition over only part of the existing first floor represents a positive reinvestment in the neighbourhood and makes more efficient use of the land. To refuse the application on the basis of the coverage variance would effectively mean that the existing building with the enclosed pool cannot be redeveloped in an otherwise permitted form, including an otherwise permitted height. Any redevelopment, therefore, would require the demolition of the existing structure in order for the site to be redeveloped and reinvestment to occur on this property. In my opinion, that does not represent an efficient use of land and is not a desirable planning outcome.

22In Mr. Manett’s opinion the proposed development is minor in nature since it does not create any adverse impacts on nearby properties or the neighbourhood.

23Mr. Manett concluded that the proposed development meets the requirements of s. 45(1) of the Act and represents good planning.

24Michelle Perrone is a Planning Technician who appeared on behalf of the City. After review of Ms. Perrone’s professional qualifications and confirmation of her Acknowledgment of Experts Duty, the Tribunal qualified Ms. Perrone to provide evidence in the area of planning.

25Ms. Perrone holds a degree in Public Policy and is a pre-candidacy member of the Ontario Professional Planners Institute. At the time of the application, Ms. Perrone has held the role of a Land Use Planner for a period of six month, filling in for another employee’s parental leave. After that Ms. Perrone has returned to her previous role as a Planning Technician.

26Ms. Perrone is of the opinion that the existing dwelling with a covered pool is already overbuilt in regard to the lot size and that the proposed development is not an appropriate use of the land. Therefore, in Ms. Perrone’s opinion the proposed development does not satisfy the four tests under s. 45(1) of the Act.

27In the analysis, Ms. Perrone looked at the data of the approved MV for the properties in the surrounding neighbourhood. In her testimony Ms. Perrone pointed out that none of the approved MVs have a lot coverage close to the subject property and that the majority of the approved MV were for properties with lot coverage close to 23%, required under the current ZBL. Ms. Perrone believes that the proposed development will result in incompatible massing and would set a precedent for other MV applications in the neighbourhood.

ANALYSIS AND FINDINGS

28The Tribunal noted that neither in her witness statement, her City’s Staff Report or in her oral testimony did Ms. Perrone take into consideration that the lot coverage of subject property is a legal non-compliant condition that has existed for close to 50 years.

29During cross-examination Ms. Perrone has admitted that if not for the covered swimming pool, the proposed development would have been appropriate.

30Based on a thorough review of the evidence before the Tribunal, including the contents of the City’s Staff report, the decision of the COA and taking into account the planning opinion of Mr. Manett and Ms. Perrone, the Tribunal prefers Mr. Manett’s opinion evidence.

CONCLUSION

31The Tribunal finds that the residential use maintains the intent of the VOP designation reinforcing the existing physical character and uses of the surrounding area and for a renovation and reinvestment into the existing housing stock which utilizes existing infrastructure. To the intent of the ZBLs, the variances are appropriate as the lot coverage is an existing condition and no change to the building footprint is proposed; and the proposed reduction in the width of the driveway will result in additional soft landscaping. The proposed development is desirable, as it will provide a positive reinvestment in the neighbourhood and will make more efficient use of the land. The Tribunal agrees with Mr. Manett’s analysis that the requested variances are minor in nature and will not have an undue impact on the surrounding properties or the neighbourhood.

32The Tribunal finds that the variances satisfy the four tests of s. 45(1) of the Act, have regard to the matters of the provincial interests set out in s. 2, are consistent with the PPS and conform to the GP, and are representative of good planning in the public interest.

33The Tribunal further finds that given that the lot coverage of 30% of the subject site has existed for close to 50 years, it is a unique condition for the surrounding area, and it will not set a negative precedent within the neighbourhood.

ORDER

34THE TRIBUNAL ORDERS that the appeal is allowed and the minor variances to Zoning By-law No. 1-88 and Zoning By-law No. 001-2021 are authorized subject to the following condition:

a. The proposed development shall be constructed substantially in accordance with the plans and drawings set out in Attachment 1 to this Order.

“P. Tomilin”

p. tomilin

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