Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 28, 2022
CASE NO(S).:
OLT-22-003752
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Angela Rivett
Applicant:
William and Patricia Grant
Subject:
Minor Variance
Reference Number:
P/CA 40/22
Property Address:
521 Bella Vista Drive
Municipality/UT:
Pickering/Durham
OLT Case No.:
OLT-22-003752
OLT Lead Case No.:
OLT-22-003752
OLT Case Name:
Rivett v. Pickering (City)
Heard:
August 30, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel*/Representative
Angela Rivett
Self-represented
City of Pickering
Alexandra Whyte*
William and Patricia Grant
Malynn Cowley*
DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was convened on August 30, 2022 (“Hearing”), to consider the appeal by Angela Rivett (“Appellant”) from the approval by the City of Pickering’s (“City”) Committee of Adjustment (“COA”) to grant a minor variance requested by William and Patricia Grant (“Applicants”) to Zoning By-law No. 2511 as amended (“ZBL”) pursuant to s. 45(12) of the Planning Act (“Act”). The Applicants applied to the City for minor variances pertaining to a property known municipally as 521 Bella Vista Drive, in the City (“Subject Property”).
2At the start of the Hearing, the Applicants, who own the Subject Property, requested and received Party Status in the Hearing. The Tribunal did not receive any other requests for status, either Party or Participant.
3The Appellant was self-represented, and the Tribunal provided the usual guidance on Tribunal procedures to her as a lay person.
Requested Variance
4The Applicants had submitted an application to the City requesting relief from the ZBL to permit:
a. a minimum front yard depth of 6.0 metres (“m”), whereas the By-law requires a minimum front yard depth of 7.5 m (“Front Yard Variance”); and,
b. a minimum side yard depth of 1.2 m, whereas the By-law requires a minimum side yard depth of 1.5 m (“Side Yard Variance”).
5The COA approved the Front Yard Variance and refused the Side Yard Variance.
6At the Hearing, the City indicated that it supported the COA decision and requested that the Tribunal maintain that decision. The Applicants concurred.
7The Applicants request approval of the Front Yard Variance in order to obtain a building permit to construct a new detached dwelling with garage (“Proposed Development”).
Site and Context
8The City’s Official Plan (“City’s OP”) designates the Subject Property as “Open Space System –Natural Area,” described in further detail below. Moreover, the City’s OP includes Urban Neighbourhood Plans which are considered when reviewing development applications. The Subject Property is located within the Rosebank Urban Neighbourhood.
9The Subject Property is located within the Toronto Region Conservation Authority (“TRCA”) Regulated Area of the Waterfront watershed and is regulated with respect to its location adjacent to Lake Ontario.
10The Subject Property is on the south side of Bella Vista Drive. The existing lotting pattern along Bella Vista Drive is irregular. Most existing lots predate the adoption of the City’s OP and ZBL. The Subject Property has a lot frontage of 20 m and a site area of 1,139.5 square metres (“m2”). Currently, a one-and-a-half-storey dwelling is situated approximately 24.5 m from the front lot line, and setback 4.9 m from the east side lot line.
11The adjacent property to the east, where the Appellant resides at 523 Bella Vista Drive (“Appellant’s Property”), has a lot frontage of 18.5 m, a site area of approximately 1,001.0 m2, and currently, has an existing one-storey dwelling situated less than 1.0 m from the shared lot line with the Subject Property.
LEGISLATIVE TESTS
12The Tribunal’s authority to grant 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. The tests require that the variances:
a. Maintain the general intent and purpose of the OP;
b. Maintain the general intent and purpose of the Zoning By-law;
c. Be desirable for the appropriate development or use of the land, building or structure; and,
d. Be minor in nature.
13The proposed variances must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act. It must also have regard to the decision of the COA and the information considered by it, as required under s. 2.1(1) of the Act, though it is not bound by that decision.
14Under s. 45(18) of the Act, this Hearing is de novo, meaning that the entire application must be considered anew, and the Tribunal is not merely reviewing those aspects of the COA’s decision that the Appellant objects to. The onus of satisfying the Tribunal that the application meets these tests remains on the Applicants.
THE HEARING
15As evidence in the Hearing, the Tribunal received the following Exhibits, which were identified sequentially during the hearing:
Exhibit 1: The Appellant’s Documents
Exhibit 2: City’s Book of Documents
Exhibit 3: The Applicant’s Documents
16The Front Yard Variance is authorized for the reasons detailed below. The Side Yard Variance is not authorized for the reasons detailed below.
17The Appellant raised a number of issues with the Proposed Development, including:
a. The new structure would tower over the Appellant’s Property.
b. The Appellant claimed that, based on the shadow calculation on Google Maps, as a result of the Proposed Development, the Appellant’s Property would not benefit from the afternoon sun commencing at approximately 12:26 p.m., which would eliminate her enjoyment of the afternoon sun, prevent her garden from getting adequate sun and heat for gardening, eliminate the sun and heat required to energize solar panels that supplement her daily electrical needs, and eliminate the sun and heat required to dry her roof after storm events.
c. The new structure would consume 90% of the building lot width at the Subject Property, and would cover a length that matched the Appellant’s Property depth, which the Appellant found unacceptable.
d. The Proposed Development shows a “retaining wall” along the east boundary line of the Subject Property, and the Appellant was concerned that construction activities would have a significant impact on her.
18The Appellant proposed a number of solutions, including that the Applicants redesign a smaller house on the Subject Property, redesign the house with the three-car garage with a second storey to be built on the west side of the Subject Property instead of the east to at least allow the north portion of the Appellant’s Property to benefit from the afternoon sun, or redesign the three-car garage without the second storey. The Appellant also requested that any decision on this Proposed Development be deferred until questions are answered, and that architectural drawings and grading plans are available for viewing.
19The Appellant did not rely on any witnesses at the Hearing.
20The Applicants and the City were aligned in the position that the appeal should be dismissed and the COA decision should stand.
21The City called the following witnesses:
a. Kerry Yelk, who was qualified by the Tribunal without objection to provide expert opinion evidence in the field of land use planning. He provided a detailed planning rationale in support of the Front Yard Variance requested. Mr. Yelk’s Curriculum Vitae and Acknowledgement of Expert’s Duty forms are found in Exhibit 2. Mr. Yelk also prepared the Staff Report considered by the City and presented to the COA.
b. Kobihan Karunakaran, who was qualified by the Tribunal without objection to provide expert opinion evidence in the field of civil engineering. He provided testimony regarding the City’s Engineering Design Criteria, namely Lot Grading section, item 1.1. Mr. Karunakaran’s Curriculum Vitae and Acknowledgment of Expert’s Duty forms are found in Exhibit 2.
22The Applicants did not call any witnesses but adopted the position put forth by the City.
PLANNING EVIDENCE
Provincial Policy Statement, 2020 (“PPS”) and Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)
23Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the applicable provincial policy statements that are in effect at the applicable time. As such, the PPS and the Growth Plan must be considered when assessing a planning instrument.
24Mr. Yelk testified that the Front Yard Variance, the only one sought by the Applicant, was consistent with the PPS and did not contradict the Growth Plan. Moreover, he stated that the intent and policies of the applicable provincial policies had been incorporated into the City’s OP, and as explained below, the minor variance requested maintained the general intent and purpose of the City’s OP.
THE FOUR TESTS
Do the Variances maintain the general intent and purpose of the City’s OP?
25Mr. Yelk indicated that the designation of the Subject Property as “Open Space System –Natural Area” in the City’s OP mandates that these areas shall be used primarily for conservation, restoration, environmental education, recreation, and ancillary purposes. However, uses such as lawful residential dwellings and new residential dwellings on a vacant lot are also permissible uses.
26Additionally, as the Subject Property is located within the Rosebank Urban Neighbourhood, the Proposed Development application was reviewed against the urban neighbourhood policies in the City’s OP. Section 12.3(a) of the City’s OP states that established residential areas along Bella Vista Drive shall require new developments to be compatible with the character of existing developments. The character of the neighbourhood is generally comprised of larger lots containing one to two-storey single detached dwellings. All existing houses including the adjacent houses to the west and east are setback beyond the minimum front yard requirements providing deep front yards.
27Section 10.22 of the City’s OP includes Environmental Risk management policies. Section 10.22(b) states, “Council shall adhere to provincial standards and conservation authority regulations and standards for identifying the limits of hazardous lands and hazardous sites.” Mr. Yelk indicated that the City relies on the TRCA’s comments in making a decision. Prior to the submission of the Minor Variance application, the Proposed Development was reviewed by TRCA. TRCA Living City Policies require a 10-metre setback from the furthest inland feature or hazard. TRCA staff previously worked with the Applicant to review a Coastal Hazard Assessment and stable top of slope evaluation. Both assessments were then combined to provide the overall “Erosion Hazard Limit”, which has been identified on the Site Plan. The TRCA 10-m setback would then be applied to the Erosion Hazard Limit as per the City’s OP. As the existing dwelling is already within this required setback, TRCA staff accepted a reduced setback for the proposed habitable space in these instances. In short, TRCA staff reviewed the requested variances and had no objections to the approval of the minor variances requested.
28Section 14.10 of the City’s OP includes design of buildings policies. The Appellant, in her lay opinion evidence, had specifically indicated that the Proposed Development did not conform with this policy. However, Mr. Yelk explained that it did. Section 14.10(e) states “City Council shall where new development is proposed within an existing neighbourhood or established area, encourage building designs that reinforce and complement existing built patterns such as form, massing, height, proportion, position relative to street, and building area to site area ratio.” The Proposed Development has a total area of 260 m2, while the dwelling to the east has a total area of 220 m2 and the dwelling to the west has a total area of 320 m2. The Proposed Development for the Subject Property maintains the existing built pattern, massing, and proportion as outlined in the City’s OP design guideline policies.
29Section 14.4 of the City’s OP includes design of buildings and development with respect to preservation of natural features. Section 14.4(b) states, “City council shall where possible, require the maximum retention of natural features on properties proposed to be developed, and ensure that such features are permitted to regenerate with minimal intervention.” As detailed above, the Applicants underwent thorough consultation with TRCA staff on the placement of the Proposed Development with respect to the natural features such as vegetation, trees, and shoreline protection, and TRCA staff indicated they were satisfied with the placement of the Proposed Development with respect to the Erosion Hazard Limit.
30It was Mr. Yelk’s overall opinion that the proposed variances maintain the general intent and purpose of the City’s OP.
Do the Variances meet the general intent and purpose of the City’s Zoning By-law No. 2511?
31Mr. Yelk testified that the Front Yard Variance, the only variance requested by the Applicant at this time, meets the general intent and purpose of the City’s ZBL, but the Side Yard Variance does not meet the general intent and purpose of the City’s ZBL.
32The Subject Property is zoned “R4” – Residential within the ZBL. The By-law requires a minimum front yard depth of 7.5 m, and a side yard depth of 1.5 m. The Proposed Development has a front yard setback of 6.0 m, and initially sought an east side yard depth of 1.2 m. The Applicants no longer want to decrease the east side yard depth to 1.2 m.
33Mr. Yelk explained that the intent of the front yard provision is to ensure a consistent streetscape, to provide an adequate space for soft landscaping, and to provide sufficient parking space in front of the dwelling. The reduced front yard depth as proposed by the Front Yard Variance will not negatively impact the streetscape, and will still provide for adequate soft landscaping and parking space in front of the dwelling.
Are the proposed variances considered desirable for the appropriate development or use of the land, building or structure?
34Mr. Yelk opined that the Front Yard Variance is desirable for the appropriate development or use of the Subject Property, but the Side Yard Variance is not.
35The grade of the lot is relatively flat, but drops significantly at the rear lot line towards the Lake Ontario Shoreline. The Applicants have appropriately situated the Proposed Development with respect to TRCA’s development guidelines and policies. Mr. Karunakaran, the engineering expert, confirmed in his testimony that the Front Yard Variance will not adversely impact the adjacent lots or surrounding area, and will not negatively impact drainage patterns of the surrounding area.
36However, the Side Yard Variance, does not adequately implement the City’s Engineering Design Criteria with respect to Lot Grading. Mr. Karunakaran explained that the Side Yard Variance would cause adverse impacts.
Are the proposed variances minor?
37In Mr. Yelk’s opinion, the Front Yard Variance is minor in nature, but the Side Yard Variance is not as it may cause adverse impacts on the existing neighbouring lots.
38In short, Mr. Yelk concluded that the Front Yard Variance constitutes good land use planning and meets the test for a minor variance, but the Side Yard Variance does not. Mr. Karunakaran agreed with Mr. Yelk and recommended the approval of the request for the Front Yard Variance and the refusal of the request for the Side Yard Variance.
CROSS-EXAMINATION
39Mr. Yelk’s testimony remained unshaken on cross-examination. Specifically, some of the Appellant’s concerns were addressed as follows:
a. The height of the building was not addressed or discussed by Mr. Yelk when assessing section 14.10 of the City’s OP because the height of the Proposed Development was within the ZBL’s requirements, and no variance had been requested on the height of the building.
b. No impact assessment was required with respect to the Proposed Development because the Proposed Development was for a single-family home, for which impact assessments were not completed.
c. The Appellant expressed concerns regarding the number of parking spots proposed, but Mr. Yelk explained that the Proposed Development met the City’s ZBL’s minimum requirement for parking spots, and no variance was requested with respect to parking spots.
d. Regarding the Appellant’s concern about shadows produced by the Proposed Development, Mr. Yelk explained that the City did not have any zoning provisions controlling sun impact on neighbouring properties. Though there were policies in the City’s OP that addressed reduction of shadows, this matter was a minor variance application pertaining to the ZBL, and shadow impacts were not applicable here.
e. With respect to the position of the Proposed Development on the Subject Property, Mr. Yelk explained that the City did not have discretion over where the home could be placed on the land, as long as it complied with the requirements of the ZBL. In this case, it did, and the Front Yard Variance constituted good planning, though the Side Yard Variance did not.
f. With respect to the east side yard, Mr. Yelk was asked whether he believed, in his professional opinion, that a 4 m side yard setback would be a better fit for the Proposed Development. Mr. Yelk explained that the ZBL permitted a 1.5 m setback to both side yards, and that the Engineering Department, with respect to this specific proposal, had indicated they would have concerns with anything less than 1.5 m. However, at this time, the Applicants were only seeking the Front Yard Variance, so this question was not applicable.
40Mr. Karunakaran’s testimony also remained unshaken on cross-examination. He was also asked whether a 4 m side yard setback would be a better fit for the Proposed Development, despite what the by-law stated. Mr. Karunakaran maintained that, from an engineering standpoint, a 1.5 m setback was all that was required.
41The Appellant, on cross-examination, indicated that the shadow study she relied on was something provided to her by a friend or family member, and she assumed it had been done simply on Google. She had not conducted a study or commissioned an expert to conduct a shadow study with respect to the Proposed Development.
42Additionally, the City stressed that the Appellant’s concerns with the Proposed Development pertained to matters that did not relate to the minor variances requested from the COA, nor to the Front Yard Variance, which was the only one being sought by the Applicants before the Tribunal. The Applicants could, as of right, build the Proposed Development, apart from the Front Yard Variance, and the Appellant’s concerns related to matters that the Applicants were already allowed to do as of right. The City further emphasized to the Appellant that the Side Yard Variance is not being pursued, which would alleviate the Appellant’s concerns regarding the side yard setback.
43The Applicants addressed the Appellant’s concern with the two-storey garage, that the Appellant claimed would eclipse her front yard with shadows. The Applicants explained to the Appellant that the Front Yard Variance pertained to the garage being moved forward by 1.5 m, and did not pertain to the garage’s height in any way. The height of it was allowed as of right and did not contradict any of the City’s by-laws.
FINDINGS
44The Tribunal is satisfied by the evidence provided by Mr. Yelk and Mr. Karunakaran, through their unshaken testimony, that the four tests in s. 45 of the Act have been satisfied with respect to the Front Yard Variance and have resulted in evidence that adverse impacts will not occur with the granting of the Front Yard Variance. The Tribunal is also satisfied that the four tests have not been satisfied with respect to the Side Yard Variance, and granting same would result in adverse impacts.
45The Tribunal also finds the Front Yard Variance request has proper regard for matters of provincial interest found in s. 2 of the Act, and is consistent with provincial policies such as the PPS 2020, while the Side Yard Variance does not and is not.
46The Applicants, in closing, requested that the Appellant’s appeal be dismissed in accordance with s. 45(17) of the Act as she had not raised land use planning issues. However, this section pertains to dismissals prior to a hearing taking place. In this case, as the Hearing took place, this section does not apply.
47Additionally, the Applicant, in seeking the s. 45(17) dismissal, reserved the right to pursue costs. In Tribunal proceedings, costs are not automatically awarded to a successful party but rather, are only awarded in rare circumstances. There is a relatively high threshold to be met and Rule 23.9 of the Tribunal’s Rules of Practice and Procedure (“Rules”) sets out a non-exhaustive list of improper conduct which might attract such relief, but also makes it clear that the Tribunal is not bound to order costs even in circumstances where it finds such conduct has occurred. In briefly reflecting on the entirety of this one (1) day hearing, it is not obvious to the Tribunal that any one party’s conduct stands out as meeting the threshold which would attract such an award. While the Parties remain entitled to make detailed written requests for costs in accordance with Rule 23, all of the foregoing ought to be borne in mind.
ORDER
48THE TRIBUNAL ORDERS that the Appellant’s appeal is dismissed and the following variance to By-law No. 2511 is authorized:
a. a minimum front yard depth of 6.0 metres, whereas the By-law requires a minimum front yard depth of 7.5 metres.
“Bita M. Rajaee”
BITA M. RAJAEE 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.