Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 28, 2022

CASE NO(S).: OLT-22-003951

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

Appellant: The Corporation of the City of Oshawa

Applicant: Syeda Kiran Ali

Subject: Minor Variance

Description: To reduce minimum accessory apartment parking space length to 4.5 metres in order to permit an accessory apartment with a parking space.

Reference Number: A-2022-48

Property Address: 865 Groveland Avenue

Municipality/UT: Oshawa/Durham

OLT Case No: OLT-22-003951

OLT Lead Case No: OLT-22-003951

OLT Case Name: The Corporation of City of Oshawa v. Oshawa (City)

Heard: November 24, 2022 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Syeda Kiran Ali (“Applicant”)	Abhishek Rajgor
City of Oshawa (“Appellant”)	Melanie Mayhew-Hammond*

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by the Corporation of the City of Oshawa (the “Appellant”) against the decision of the City of Oshawa (the “City”) Committee of Adjustment’s (the “CoA”) decision on October 27, 2021, in relation to the approval of an application for a minor variance to the zoning provisions established by Zoning By-law No. 60-94, as amended (the “ZBL”) concerning 865 Groveland Avenue (the “Subject Property”).

2The minor variance application is for relief from the provisions of ZBL 60-94 to reduce the required parking space length from 5.4 metres (“m”) to 4.5 m, where ZBL 60-94 requires a length of 5.75 m.

3The Applicant previously obtained a CoA approval to permit a single detached dwelling with an accessory apartment with reduced lot frontage, landscaped open space in the front yard, parking space width and parking space length. However, the Applicant subsequently discovered that the 5.4 m parking space length they had previously indicated was incorrect, which affected the parking space length relief required. The drawings showed the setback of the dwelling as being 5.4 m from the front lot line when the distance is actually 4.5 m from the front lot line, resulting in a lesser parking space length than was approved by the CoA. This error was not identified until the Applicant prepared more detailed plans for a building permit and the building permit application was reviewed. The Applicant was advised they would be required to return to the CoA with a new application.

4On May 25, 2022, the CoA approved the minor variance for reduced parking length of 4.5 m even though Planning Staff recommended denial of the application.

5On June 10, 2022, City staff, at the direction of City Council, filed an appeal.

THE REQUESTED VARIANCE

6The purpose and effect of the application is to permit a single detached dwelling with an accessory apartment with a minimum parking space length of 4.5 m (accessory apartment parking space only), whereas the ZBL as previously varied by the CoA, requires a minimum parking space length of 5.4 m for a parking space for an accessory apartment in a single detached dwelling in a residential zone instead of 5.75 m as required by the ZBL.

THE SUBJECT PROPERTY

7The Subject Property is located at 865 Groveland Avenue in Ward 1, in the City. The Subject Property is located on the south side of Groveland Avenue and the street does not have a sidewalk in front of the property. The Subject Property has a lot area of approximately 362.3 square metres (“m²”). The Subject Property has a frontage of 10.5 m and a depth of 34.5 m. The Subject Property has one single detached dwelling. The Subject Property is a residentially zoned property located within the City’s Northeast, Taunton Planning Area.

8The Subject Property is designated as Living Area within the Urban Area Boundary on Schedule ‘A’ in the Durham Region Official Plan (“DROP”). The Subject Property is designated as Residential in the City Official Plan (“OP”) and is designated as Low Density Residential in the Taunton Part II Plan. The Subject Property is zoned R1-E.Y4.5 (Residential) in the City’s ZBL.

LEGISLATIVE TESTS

9It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.

10Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

i. maintain the general intent and purpose of the Official Plan (the “OP”), ii. maintain the general intent and purpose of the ZBL, iii. are desirable for the appropriate development or use of the land, building or structure, and, iv. are minor in nature.

WITNESSES

11Erika Kohek is a Planner for the City, who appeared before the Tribunal to give land use planning testimony. Ms. Kohek was duly qualified on consent to provide expert opinion evidence in land use planning.

12Brent Varty is a Manager for the Municipal Law Enforcement Service of the City. Mr. Varty was qualified on consent to provide expert opinion evidence on Municipal Law Enforcement.

13Abhishek Rajgor is a building representative for MEM Engineering Inc. who would provide evidence on behalf of the Applicant.

EVIDENCE

14The Appellant submits the minor variance application is reducing the length of the parking space from 5.75 m to 4.5 m, which is a 21% reduction. The average vehicle would not be able to comply with the length of the ZBL and would extend over the property line onto the City Boulevard. This would result in contravention of the ZBL and would result in a Traffic infraction.

15The Applicant submits that other minor variance applications for front yard and reduced parking spaces have been approved by the City, in other instances, regarding Accessory Apartments. In this case, due to the lot size and existing front porch which protrudes in the front yard, the Applicant is not able to fit the third legal parking space in the front yard without having to reduce the parking length.

16The Applicant advised there is a cold cellar underneath the porch, therefore the steps cannot be removed without significant renovation. The foundation would need to be modified along the entire front elevation up to the roof with an approximate cost of 18 to 20 thousand dollars.

17The Applicant contends the single-family dwelling on the Subject Property is an existing dwelling and conforms to all Building and Fire Codes and the minor variance should be approved. In addition, the City Boulevard is without a sidewalk, a third car can be easily parked on the driveway without touching the City’s curb and still being approximately 2.5 m away from the curb.

The Provincial Policy Statement (“PPS”)

18Ms. Kohek highlighted that the PPS supports intensification and the range of housing options, which the Subject Property with an accessory apartment provides. Ms. Kohek opined that the Application is consistent with the PPS.

A Place to Grow – Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)

19Ms. Kohek highlighted that the Growth Plan includes a complete community within settlement areas that provide a full range of housing types. An accessory apartment on the Subject Property provides this housing type. Ms. Kohek opined that the Application also conforms to the Growth Plan.

Durham Region Official Plan (“DROP”)

20Ms. Kohek highlighted Policy 4.3.2 of the DROP which supports opportunities to increase the supply of housing in Urban Areas through intensification taking into account the adequacy of municipal services and the physical potential of the housing stock, which may include the conversion of single detached dwellings into multiple residential units.

21Ms. Kohek advised the DROP is silent with respect to off-street parking.

City of Oshawa Official Plan (“OP”)

22Ms. Kohek opined, that the proposal to add an accessory apartment would conform to the OP, if all other criteria were met. The guiding policies and principles in the City’s OP support the proposed use of a single detached dwelling with an accessory apartment within this land use and location. The proposal to add an accessory apartment would meet the intent and purpose of the OP.

23Ms. Kohek highlighted in determining appropriateness of the proposed location for residential intensification adequate off-street parking, as required by the ZBL, can be made available.

24Ms. Kohek advised s. 6.4.7 of the OP provides that the ZBL sets requirements relating to such matters as off-street parking and the limit of structural additions or changes to buildings in order to ensure that changes to a building undergoing residential intensification do not adversely influence the amenities and character of the area.

25Ms. Kohek asserts that the reduction of the parking space from the minimum parking space requirement of 5.75 m to a length of 4.5 m, which is approximately a 21% reduction is so deficient it will adversely influence the character of the area.

26Ms. Kohek opined, that an average size vehicle cannot fit within a 4.5 m parking space and a portion of the vehicle will intrude onto the City Boulevard, which may cause safety concerns to pedestrians and motorists.

27Therefore, in Ms. Kohek’s opinion, the Application does not maintain the general purpose and intent of the OP.

City Zoning By-law

28Mr. Rajgor provided three addresses that he contends allows for accessory apartments with all required parking in the front yard. Mr. Rajgor provided addresses 219 Limerick Street, 1426 Birchcliffe Court, and 182 Prince Street.

29Mr. Rajgor also provided reference street views (Exhibit 4) at 1752 Gower Drive, 1579 Frolis Street and 1732 Gower Drive without the presence of sidewalks to show a third vehicle can be easily parked on the front yard driveway and still being approximately 2.5 kilometres away from the curb.

30Ms. Kohek testified that in 2014, the City implemented zoning regulations permitting accessory apartments throughout most of the City. One of the key regulations was a requirement to provide at least one (1) parking space for the accessory apartment in addition to the two (2) spaces required for the main dwelling. The purpose of this requirement was to ensure that any parking demand created by the accessory apartment was accommodated on the property. The regulation stipulating that the accessory parking space could not be in tandem with the parking for the main dwelling was intended to allow the residents and visitors of each unit to come and go freely.

31Ms. Kohek testified the intent of the minimum parking space length is to ensure that properties have adequate space for storage of vehicles, whether that be within a garage or on a driveway of a private residential property. The ZBL does not permit required parking to be met on other properties, in the City Boulevard, or on the street.

32Ms. Kohek reviewed section 4.21 of the City ZBL, which required parking space such as a driveway. Ms. Kohek also highlighted section 5.12.2 of the City ZBL which requires three (3) parking spaces for an accessory apartment. She also advised that section 39.1 Parking and Loading Requirement, specifically section 39.1.1 requires parking spaces to be on the same lot.

33Ms. Kohek explained article 39.4.1 stipulates other parking space size requirements for all other uses that are not for a single detached dwelling, semi-detached dwelling, a street townhouse dwelling or a bed and breakfast establishment. The smallest parking space dimensions permitted by the ZBL is a minimum width of 2.6 m and a minimum length of 5.4 m.

34In order to support additional housing, City staff supported the CoA approved variances in 2021, for this site to have a parking space the size of 2.6 m by 5.4 m for the accessory apartment parking space. The proposed parking space length of 4.5 m is 21.7% less than the required parking space length of 5.75 m. A parking space of 4.5 m is also 16.7% less than the minimum required parking space length of 5.4 m identified in the ZBL for uses other than those residential uses.

35In Ms. Kohek’s opinion, a 4.5 m long parking space for the accessory apartment does not meet the intent of ZBL as it would result in residents or visitors for the accessory apartment having to park on the City Boulevard or on the street. In her opinion, there are few vehicles that would fit entirely within a parking space with a length of 4.5 m. There are limited instances where a vehicle could be located within the proposed space without encroaching onto the City Boulevard.

36According to Ms. Kohek, the relocation or removal of a portion of the front porch was discussed with the Applicant and City staff through the first CoA application to increase the length of the third parking space. This option was refused by the Applicant with the reason being related to the cost to remove the porch. Ms. Kohek opined, the removal of the front porch may accommodate the extra length for a parking space and that a financial reason is not a valid reason not to abide by a ZBL.

37Ms. Kohek advised she conducted online research of the ten most popular vehicles. Upon her review of a variety of popular vehicle makes and models, the majority of vehicles have a length that exceed 4.5 m. The parking space length proposed by the Applicant is measured directly against the front porch so even with a minimal gap between the porch and the vehicle, a vehicle utilizing that space would extend into the City Boulevard.

38According to Ms. Kohek, in the event the City needed to access the Boulevard for maintenance or other projects, the landowner may only have use of a parking space that is 4.5 m in length which is in most cases unusable by the majority of personal vehicles given their size.

39Ms. Kohek responded to the evidence of the Applicant in regard to the addresses at 1752 Gower Drive, 1579 Frolis Street and 1732 Gower Drive. Ms. Kohek explained each of the single detached dwellings in the reference images have an attached two-car garage. These examples have four legal parking spaces accommodated on the property: two in the garage and two in the driveway. Ms. Kohek contends these properties have wider frontages than the Subject Property as well.

40In Ms. Kohek’s opinion, the reference street view show residents utilizing the boulevard space for parking but not directly depending on it to meet the requirements of the ZBL for the land use that exists on their property.

41Mr. Varty testified in regard to evidence of addresses at 1752 Gower Drive, 1579 Frolis Street and 1732 Gower Drive concerning whether a third vehicle can be easily parked on the front yard driveway without touching the City’s curb. Mr. Varty advised it would be difficult to determine without knowing where property lines are however, all the vehicles shown appear to be in contravention of the ZBL as all these vehicles appear to be over hanging the City Boulevard, which would be enforced by issuing traffic tickets.

42Ms. Kohek advised that all properties at 219 Limerick Street and 1426 Birchcliffe Court and 182 Prince Street, presented as evidence from the Applicant regarding approved parking spaces in the front yard were not for a reduced parking space except for 182 Prince Street.

43Ms. Kohek advised these applications where to permit a single detached dwelling or a single detached dwelling with an accessory apartment with all parking in the front yard, whereas the ZBL requires a parking space in a side yard, rear yard or in a garage for a single detached dwelling or a single detached dwelling with an accessory apartment in a Residential Zone.

44Ms. Kohek acknowledged 219 Limerick Street and 1426 Birchcliffe Court were approved with front yard parking spaces, however, did not request a reduction on length for a parking space.

45Ms. Kohek advised the application for 180 Prince Street has no similarities between the variances requested for this file and the Subject Property’s variance request for reduced parking space length. This property can accommodate the required number of parking spaces at the size required by the ZBL for a semi-detached dwelling with an accessory apartment. Further, there is a sidewalk in the City Boulevard in front of this property.

46On cross-examination, Ms. Kohek advised 182 and 180 Prince Street were severed to add an accessory apartment to each semi-detached dwelling. The principal dwelling unit will utilize the parking space in the garage and the driveway space located in front of the garage on the south side of the driveway. The accessory apartment will utilize the parking space on the north side of the driveway. Ms. Kohek acknowledged that 182 Prince Street, did have a declaration exemption that predates the ZBL for a reduction of parking spaces for this location.

47In summary, Ms. Kohek opined the proposed variance does not meet the intent and purpose of the ZBL or OP, is not minor and is not desirable for the appropriate development of the Subject Property.

Mr. Varty’s Testimony

48Mr. Varty testified the parking space standards as outlined in s. 39.4.2 of ZBL 60-94, are implemented to support the OP, and require the minimum parking space dimensions to be 2.75 m wide by 5.75 m in length for a single detached dwelling.

49Mr. Varty testified that the City relies on Municipal Law Enforcement to provide context to various applications and the Municipal Law Enforcement Officers review is based on knowledge and experience in the field. They also determine how these certain applications affect community and safety, and traffic standards.

50Mr. Varty explained that the reduction of 5.4 m to 4.5 m in a parking space in his opinion, greatly reduces the ability of most vehicles to park in that parking space.

City Traffic Zoning By-law No. 79-99 (“ZBL 79-99”)

51Mr. Varty highlighted section 4.28 of the City Traffic ZBL 79-99 in regard to City Boulevard parking, which states:

No person shall PARK a VEHICLE on a HIGHWAY in such a manner that any part of the VEHICLE is on or over the BOULEVARD, unless:

(a) the BOULEVARD has been improved by the CITY for the purpose of PARKING and OFFICIAL SIGNS indicate same, or

(b) the BOULEVARD has been leased to private interests for PARKING purposes

52Mr. Varty testified the ZBL is designed for road safety, pedestrian safety and to reduce the City’s liability. If a vehicle doesn’t fit within a parking space and encroaches on the City Boulevard it is prohibited under the City Traffic ZBL 79-99.

53Mr. Varty advised there could be parking on the street, however there are limitations such as a three (3)-hour time restriction and seasonal restrictions such as snow removal on the roadways. Groveland Avenue is subject to the three (3)-hour restriction.

54Mr. Varty highlighted section 4.28 of City Traffic ZBL, which indicates that no person shall park a vehicle on a highway in such a manner that any part of the vehicle is on or over the boulevard, unless the boulevard has been improved by the City for the purpose of parking and official signs indicate the same, or the boulevard has been leased to private interests for parking. According to Mr. Varty, the boulevard at the Subject Property has not been improved by the City for the purpose of parking and no lease exists that would permit parking on the boulevard in question, abutting the Subject Property.

55Mr. Varty provided his online research on specifications relating to typical North American vehicle dimensions. He provided certain categories of ten vehicles each with corresponding years along with a Vehicle Dimensions Comparison table with vehicle type and vehicle length.

56In Mr. Varty’s opinion, it would not be appropriate in order to provide suitable parking for a typical vehicle in a 4.5 m parking space, and that if the application were approved, vehicles utilizing the reduced parking space would be likely to extend onto the boulevard portion of Groveland Avenue and/or would overflow onto the travelled portion of the highway (Groveland Avenue).

Is the variance desirable for the appropriate use or development of the Property

57Mr. Rajgor provided a community support letter to allow for a legal second dwelling in the basement of the Subject Property. Mr. Rajgor also provided a Support letter from a Regional and City Councillor to widen the Subject Property driveway.

58In regard to letters of support, Ms. Kohek advised there were no public comments received prior to the CoA meeting on May 25, 2022. The letter is signed by five (5) residents on Groveland Avenue and is noted as being of support for an accessory apartment but does not mention the reason for the variance. The petition does not state support for a reduced parking space length.

59Ms. Kohek contends that while accessory apartments are desirable for the use and development of the Property, the parking requirements need to be satisfied within the boundary of the Property. This variance would adversely impact the adjacent City property at the front lot line.

60Ms. Kohek opined, a parking space that is not large enough to accommodate an average vehicle length would undoubtedly cause vehicles utilizing the parking space to overhang onto the City Boulevard, or to otherwise park in the boulevard or on the street.

61Ms. Kohek advised that the City may choose to install a sidewalk on Groveland Avenue, which would be installed at the lot line. A parking space that overhangs onto a City sidewalk would cause accessibility issues.

62In Ms. Kohek’s opinion, it is not desirable or appropriate to approve a variance that will have the adverse consequence of using City property for parking.

Minor in Nature

63Ms. Kohek testified in determining whether a variance is minor in nature involves a consideration of both size and impact of the variance. The proposed parking space length of 4.5 m is 21.7% less than the required ZBL parking space length of 5.75 m, and 16.7% less than that which was approved by the CoA in the first application.

64In Ms. Kohek’s opinion, the parking space would be too deficient, and this would have an adverse impact on the City since the Boulevard is the City property and public right of way. Other impacts would be accessibility and safety concerns since it is a public right of way and approval of the application would jeopardize the integrity of the ZBL and would set a dangerous precedent.

65In Ms. Kohek’s opinion, the variance is not minor in nature.

FINDINGS AND DISPOSITION

DECISION

66The Tribunal has carefully considered all of the evidence including documents filed, as well as the submissions of the parties and is satisfied based on the submission of evidence that the four tests under s. 45(1) of the Planning Act (the “Act”) have been met by this application, and that the appeal should be dismissed for the reasons that follow.

Consistent with the PPS and Conforms with the Growth Plan

67Through the evidence provided by the Appellant, there was no dispute that the application is consistent with the PPS and conforms with the Growth Plan.

Conforms to the OPs and ZBL

68In regard to the DROP, there has been evidence to show that policies support opportunities to increase the supply of housing in Urban Areas through intensification which may include the conversion of single detached dwellings into multiple residential units.

69Since the DROP is silent with respect to off-street parking the Tribunal finds the application meets the general purpose and intent of the DROP.

70The Tribunal finds that there was no compelling evidence to suggest the minor variance application is not consistent with the City’s OP. The Tribunal heard evidence that the proposal to add an accessory apartment would conform to the OP, if all other criteria were met. The guiding policies and principles in the City’s OP support the proposed use of a single detached dwelling with an accessory apartment within this land use and location. The proposal to add an accessory apartment would meet the intent and purpose of the OP.

71Section 6.4.7 of the OP was highlighted which the ZBL sets requirements relating to such matters as off-street parking and the limit of structural additions or changes to buildings in order to ensure that changes to a building undergoing residential intensification do not adversely influence the amenities and character of the area.

72The Tribunal cannot agree with Ms. Kohek’s opinion that the reduction of the parking space from the minimum parking space requirement of 5.75 m to a length of 4.5 m, which is approximately a 21% reduction is so deficient that it will adversely influence the amenities and character of the area.

73Ms. Kohek testified that an average size vehicle cannot fit within a 4.5 m parking space and that a portion of the vehicle will intrude onto the City Boulevard which may cause safety concerns to pedestrians and motorists.

74The Tribunal finds a reduced parking space of a 21% reduction in itself cannot adversely influence the amenities and character of the area. However, the safety and accessibility concerns to pedestrians and motorists if a portion of a vehicle intrudes onto the City Boulevard or a sidewalk is concerning to the Tribunal.

75In this case, the only evidence presented was that a “typical” or “average” vehicle could not fit within a 4.5 m parking space.

76The Tribunal finds the online research is questionable in the fact it is the only evidence to prove whether an average vehicle can fit within a reduced parking space of 4.5 m. As previously noted, both Ms. Kohek and Mr. Varty relied on research conducted online to determine if an average or typical size vehicle could fit in a 4.5 m parking space.

77Mr. Varty provided his research (Exhibit 1, Tab 13) by breaking down categories of Canada’s best-selling vehicles in 2021, the 10 most popular new vehicles in Canada in 2022, the 10 smallest cars in 2022 and provided a vehicle dimension comparison table.

78Mr. Varty testified that, in his opinion, it would not be appropriate in order to provide suitable parking for a typical vehicle on the Subject Property.

79Mr. Varty identified 30 vehicles in total (10 vehicles per category with three categories) however, on the Vehicle Dimensions Comparison Table there were 34 vehicles listed. It was not explained to the Tribunal the reason for the discrepancy in the number of vehicles in the comparison table, or why some categories in years were in 2021 and some in 2022. Furthermore, not every person has a vehicle 2021 or 2022 model.

80In any event, even if the Tribunal were to consider the Vehicle Dimensions Comparison Table evidence, what is evident to the Tribunal according to this research, is that it is not conclusive that a vehicle cannot fit in a 4.5 m parking space. The proposed parking space length of 4.5 m had fourteen (14) vehicles that could be parked within this space without being in contravention of the ZBL.

81Ms. Kohek testified the majority of vehicles researched have a length that exceed 4.5 m.

82The Tribunal notes that in the Vehicle Dimensions Comparison Table there were 34 vehicles listed. Although the majority of vehicles in the research have a vehicle length that exceeds 4.5 m, this would mean only six (6) more vehicles than with vehicles less than 4.5 m in vehicle length.

83The Tribunal notes Ms. Kohek acknowledges, in her submission, there are limited instances where a vehicle could be located within the proposed space without encroaching onto the City Boulevard. The Tribunal notes it’s not impossible but limited.

84Therefore, the Tribunal finds the application meets the general purpose and intent of the OP.

Conforms to ZBL

85As noted previously, the Tribunal agrees with the Appellant that a financial reason such as removing the front porch is not a valid reason not to abide by a ZBL.

86In regard to the Applicant’s evidence from the street view addresses at 1752 Gower Drive, 1579 Frolis Street and 1732 Gower Drive. In Ms. Kohek’s opinion, the referenced street views show residents utilizing the boulevard space for parking but not directly depending on it to meet the requirements of ZBL for the land use that exists on their property.

87The Tribunal finds difficulty with Ms. Kohek’s opinion, on her reply evidence. Mr. Varty testified that it appeared all three vehicles were in violation of the ZBL in which all vehicles appear to be over hanging the City Boulevard, which would be enforced by issuing tickets.

88Even though the vehicles shown at addresses at 1752 Gower Drive, 1579 Frolis Street and 1732 Gower Drive appear to be in violation of the ZBL as per the testimony of Mr. Varty. Ms. Kohek confirms the ZBL infraction of illegal parking by admitting “the street views show residents utilizing the boulevard space for parking,” but then tries to justify this by adding “but not directly depending on it to meet the requirements of the ZBL”.

89The Tribunal has difficulty understanding this opinion, since in her testimony this may cause a safety or accessibility concern. In any event, as noted above the Tribunal finds the parking space length of 4.5 m can accommodate some vehicles, therefore conforms to the ZBL.

Is the variance desirable for the appropriate use or development of the Property

90The Tribunal heard evidence that the City may choose to install a sidewalk on Groveland Avenue, which would be installed at the lot line. A parking space that overhangs onto a City sidewalk would cause accessibility issues. In addition, to approve the minor variance will have the adverse consequence of using City Property for parking.

91The Tribunal cannot rely on hypotheticals such as when a sidewalk will be installed and where it will be installed. Although in some cases, the Tribunal needs to foresee some instances of development, the Tribunal in this case is only considering a minor variance of a reduced parking space of 4.5 m. In this case, it has been proven to accommodate some vehicles without being in violation of a ZBL and whether a sidewalk is installed at a later date has no relevance.

92The Tribunal finds the variance will not have adverse consequences of using City Property and that the variance is desirable for the appropriate use or development of the Subject Property.

Minor in Nature

93The Tribunal considered the evidence of Ms. Kohek and Mr. Varty both of whom testified that the parking space would be too deficient, and this would have an adverse impact on the City since the Boulevard is the City property and public right-of-way. Other impacts would be accessibility and safety concerns since it is a public right-of-way and approval of the application would jeopardize the integrity of the ZBL and would set a dangerous precedent.

94As noted above, the parking space is not too deficient for some vehicles to fit in a 4.5 m parking space. In considering other adverse impacts, the Tribunal finds that allowing this minor variance will not jeopardize the integrity of the ZBL or set a dangerous precedent.

95Each case is specific to its facts, and it has been shown there have been exemptions for parking such as 182 Prince Street, which undoubtedly did not jeopardize the integrity of the ZBL or set a dangerous precedent. The issue of no parking 2 m of the driveway is not relevant since some vehicles will fit within a 4.5 m parking space without contravening the ZBL.

96The Tribunal finds a reduced parking space of a 21% reduction or from 5.75 m to either 5.4 m to 4.5 m is minor in nature with no adverse impacts to the neighbours or the City.

CONCLUSION

97The Tribunal finds that although there were two experts providing opinion evidence on land use planning and Municipal Law Enforcement evidence, this evidence was not persuasive. The Tribunal was not persuaded by and does not accept all of the land use or Municipal Law Enforcement opinion evidence of either Ms. Kohek or Mr. Varty. Although both witnesses were forthright, in the Tribunal’s opinion, they did not provide in their testimony conclusive evidence for the Tribunal to allow the appeal individually or cumulatively, particularly in the area of conformity to the OP and ZBL, and whether the application is minor or desirable for the appropriate development of the Subject Property.

98Regard has been given to the decision of CoA and the information considered by it in the course of making its decision including the comment by one Committee member stating he did not see the possible vehicle overhang in the proposed parking space as an issue.

99The Tribunal is not persuaded by the Applicant’s support letters from either the Community or Councillor, as they were not relevant to the reduction of the parking space, nor the fact that 219 Limerick Street and 1426 Birchcliffe Court had approved minor variances with somewhat different facts. The Tribunal did weigh the evidence of 182 Prince Street, which did have a declaration exemption that predates the ZBL in regard to the integrity of the ZBL and precedents.

100The Tribunal finds that the requested variance has regard for matters of provincial interest under the Act and are consistent with the PPS and satisfies the four-part test.

ORDER

101THE TRIBUNAL ORDERS that the appeal is dismissed.

“Eric S. Crowe”

ERIC S. CROWE 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.