Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 22, 2022

CASE NO(S).: OLT-22-002264 (Formerly) PL210323

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Michael Sadkowski Subject: Consent Property Address/Description: 1345 Festavon Court Municipality: City of Mississauga Municipal File No.: B26/21 OLT Case No.: OLT-22-002264 Legacy Case No.: PL210323 OLT Lead Case No.: OLT-22-002264 Legacy Case No.: PL210323 OLT Case Name: Sadkowski v. Mississauga (City)

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

Applicant and Appellant: Michael Sadkowski Subject: Minor Variance Variance from By-law No.: 0225-2007 Property Address/Description: 1345 Festavon Court Municipality: City of Mississauga Municipal File No.: A147/21 OLT Case No.: OLT-22-002265 Legacy Case No.: PL210324 OLT Lead Case No.: OLT-22-002264 Legacy Case No.: PL210323

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

Applicant and Appellant: Michael Sadkowski Subject: Minor Variance Variance from By-law No.: 0225-2007 Property Address/Description: 1345 Festavon Court Municipality: City of Mississauga Municipal File No.: A148/21 OLT Case No.: OLT-22-002266 Legacy Case No.: PL210326 OLT Lead Case No.: OLT-22-002264 Legacy Case No.: PL210323

Heard: March 30 and 31, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Michael Sadkowski (the “Applicant” or the “Appellant”)	Self-represented
City of Mississauga (“City”)	Mark Joblin and Alexandra Whyte

DECISION DELIVERED BY A. CORNACCHIA AND P. TOMILIN AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Applicant is appealing the decision of the City’s Committee of Adjustment (“Committee”) that denied the consent and minor variance applications for the creation of two residential building lots at the property legally described as Lot 12, Registered Plan 435 and municipally known as 1345 Festavon Court (“Subject Property”).

2The Applicant proposes severing the Subject Property, having a frontage of 18.50 metres (“m”) and lot area of 1,330 square metres (“sq. m”), into two residential building lots that do not comply with certain minimum requirements of the City’s Zoning By-law No. 0225-2007, as amended (“ZB”). The minor variance applications seek to reduce the minimum requirements of the ZB for lot area, lot frontage, and side yards for both lots.

3The following minor variances are requested for the lands to be severed in Application B26/21 (“Severed Lands”) to allow the construction of a new house proposing:

1. A lot area of 676.84 sq. m (approximately 7,285.46 square feet (“sq. ft.”)) whereas the ZB requires a minimum lot area of 695.00 sq. m (approximate 7,480.92 sq. ft.) in this instance;
2. A lot frontage of 9.30 m (approximately 30.51 feet (“ft.”)) whereas the ZB requires a minimum lot frontage of 18.00 m (approximate 59.06 ft.) in this instance;
3. A side yard (easterly) of 1.22 m (approximately 4.00 ft.) whereas the ZB requires a minimum side yard of 2.41 m (approximately 7.91 ft.) in this instance; and
4. A side yard (westerly) of 1.83 m (approximately 6.00 ft.) whereas the ZB requires a minimum side yard of 2.41 m (approximately 7.91 ft.) in this instance.

4The following minor variances are requested for the lands to be retained in Application A148/21 (“Retained Lands”) to allow the construction of a new house proposing:

1. A lot area of 652.13 sq. m (approximately 7,019.47 sq. ft.) whereas the ZB requires a minimum lot area of 695.00 sq. m (approximately 7,480.92 sq. ft.) in this instance;
2. A lot frontage of 9.30 m (approximately 30.51 ft.) whereas the ZB requires a minimum lot frontage of 18.00 m (approximately 59.06 ft.) in this instance;
3. A side yard (easterly) of 1.83 m (approximately 6.00 ft.) whereas the ZB requires a minimum side yard of 2.41 m (approximately 7.91 ft.) in this instance; and
4. A side yard (westerly) of 1.22 m (approximately 4.00 ft.) whereas the ZB requires a minimum side yard of 2.41 m (approximately 7.91 ft.) in this instance.

5The Subject Property is designated “Residential Low Density I” in the City’s Official Plan (“OP”) which is the lowest density designation in the OP. The Subject Property is zoned “R2-1” (singles with infill exception regulations) in the ZB.

6The Staff report prepared for the Committee recommended against the authorization of the minor variance applications for both the Severed Lands and the Retained Lands (collectively the “Minor Variance Application”). In the staff’s view, the Minor Variance Application did not respect the intent and purpose of the OP. The Committee denied the Minor Variance Application and thus, the consent applications for both the Severed Lands and Retained Lands (collectively “Consent Application”). The Applicant filed an appeal of the Committee decision with the Ontario Land Tribunal.

HEARING

7There were no issues with notice and no status requests to be addressed at the hearing.

8The Applicant was self-represented, testified on his own behalf and required direction from the Tribunal due to his inexperience with the Tribunal. The City was represented by counsel, Mr. Joblin. Lucas Petricca, Committee’s Planner for the City, was called by the City and qualified as an expert in the field of land use planning by the Tribunal. Mr. Petricca’s planning evidence was clear and uncontradicted by that of another planner. The cross-examination of Mr. Petricca did not raise any doubts regarding his testimony.

9The appeal of the Minor Variance Application and Consent Application is a hearing de novo of both applications. The Tribunal is required to hear the evidence and submissions of the parties and decide the case by applying the applicable legal tests having regard to the Committee decision.

review of the minor variance application under [section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [PLANNING act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

10The Tribunal will first deal with the Minor Variance Application and the four tests under the Planning Act (“Act”).

1. Does the Variance Maintain the General Intent and Purpose of the Official Plan?

11The planning evidence reviewed the intensification guidance from the Act, the Provincial Policy Statement, 2020 (“PPS”) and A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) and the Region of Peel OP. These higher-level policy documents promote intensification, however, such intensification must be guided by the City’s OP.

12The OP identifies that any proposed intensification development must be compatible with and consistent with the surrounding neighbourhood. Initially, it is important to define the immediate neighbourhood and then assess whether the Proposed Development is both compatible with, consistent with and respects the surrounding neighbourhood. The resolution of these issues will permit the Tribunal to deal with whether the Minor Variance Application maintains the general intent and purpose of the OP.

13The OP designates the Subject Property as “Low Density I” which permits detached, semi-detached and duplex dwellings. The planning evidence identified the following regarding the OP:

1. The OP identifies that Neighbourhoods will not be the focus of intensification for the City.
2. Any intensification that occurs in a Neighbourhood will only be permitted if it is compatible with and consistent with the built form of the surrounding development.
3. New development in Neighbourhoods must be context sensitive and respect and be compatible with the existing character and scale of development including: a. Existing lotting patterns; b. Continuity of front, rear and side yard setbacks; c. Minimize overshadowing and overlook on adjacent neighbours; and d. Existing scale, massing, character and grades of the surrounding area.
4. Development must be compatible and transition to existing: a. Street and block patterns; b. Size and configuration of the properties along a street including lot frontages and areas; c. Continuity and enhancements of streetscapes; d. Size and distribution of building mass and height; e. Front and rear yards, and f. Privacy and overlook.

14In summary, the OP identifies that established Neighbourhoods will not be the focus of intensification within the City and only intensification which meets the objectives of the OP will be permitted. Any proposed intensification development must be compatible with and respect the existing immediate Neighbourhood. Importantly, there must be a respect for the lotting patterns, setbacks and built form currently situated in the immediate Neighbourhood.

Immediate Neighbourhood and its Character

15The parties disagreed regarding the definition of the immediate Neighbourhood. The Applicant sought to define the Neighbourhood more broadly in order to encompass the more intense development areas adjacent to Festavon Court; while the City’s planning evidence defined the immediate Neighbourhood as exclusively Festavon Court.

16The Applicant suggested that the appropriate immediate Neighbourhood was part of the Birch Glen Neighbourhood which included the area bounded by:

a. All of Festavon Court which has homes with large lots, generous setbacks and extensive soft-landscaping in the front yard; b. Lakeshore Boulevard; c. Birchwood Creek; and d. the area to the immediate west of Festavon Court bordered by a walking path at the west end.

17The area to the immediate west of Festavon Court has a mix of housing types and smaller lot sizes including townhomes, detached dwellings, and semi-detached dwellings. This broader definition of the immediate area would benefit the Applicant due to the much smaller lot sizes to the west of Festavon Court.

18The City’s planning evidence was that the immediate area should be restricted to Festavon Court for the following reasons:

1. Festavon Court is a dead-end street;
2. It is bounded by Birchwood Creek on one side, Lakeshore Boulevard on west side by a greenspace designated as Utility, which includes a transformer and a fence;
3. The area to the west of Festavon Court is designated in the OP and zoned for more intense development, including townhomes and semis and there are smaller lot sizes; and
4. A church property backs onto Festavon Court with its rear yard fencing. Access to the church property is from Lakeshore Boulevard (“Festavon Area”).

19Mr. Sadkowski is not a planner and thus his opinion evidence on the broader definition of the immediate Neighbourhood cannot be given much weight. The Tribunal accepts the planning evidence regarding a narrow definition of the appropriate immediate area being restricted to Festavon Area. It is supported by the geographic isolation of the Festavon Area, the different zoning and OP designations. The OP designates Festavon Court as the lowest density designation: Residential Low Density I, while the area to the immediate west of the Festavon Area is designated as Medium Density development and is also categorized as a Special Site 4. The Zoning for the Festavon Area is R2-1 (singles with infill exception regulations); while the area to the west of Festavon Area is zoned RM2, RM4, RM5-3 facilitating more intense development. Furthermore, the OP requires that compatibility and consistency of new intensification developments be assessed based on the immediate area and quite specifically the street where the Proposed Development is located.

20The planning evidence regarding the character of the Festavon Area was that it is an area of:

1. Large, wide lots;
2. Larger detached dwelling building forms on the lots;
3. Generous setbacks; and
4. Extensive soft-landscaping in the front of the properties (“Festavon Character”).

Consistency and Compatibility with the Festavon Area

21According to the planning evidence, the Proposed Development will result in two long narrow lots with reduced frontages and side yards, long narrow buildings, and limited soft-landscaping in the front with an increased area of hard-landscaping for the proposed driveways (“Proposed Development Character”). Clearly, the Proposed Development Character is inconsistent with and does not respect the Festavon Character. The proposed lot frontage for the two proposed lots is half of that typically found on Festavon Court. Thus the lotting patterns of Festavon Court are not respected. The narrow buildings and more limited soft-landscaping is inconsistent with what is found in the Festavon Area.

22Compatibility issues also arise between the Proposed Development and the immediate neighbours due to the long narrow structures, which represent a built form which is out of character with the Festavon Area. The reduced side yards will result in a more limited transition of the proposed dwellings to the neighbouring properties and were identified as an unacceptable adverse impact.

23Based on the planning evidence related to compatibility and respect for the Festavon Character, the Tribunal finds that the Proposed Development does not respect the general intent and purpose of the OP. The OP only permits intensification which is compatible with and respects the Festavon Area and the Proposed Development is out of character with it.

2. Does the Variance Maintain the General Intent and Purpose of the Zoning By-law?

24According to the planning evidence, the intent of the ZB is to ensure that new lots are appropriately sized and fit within the Festavon Area. When considering the reduced lot frontage and lot area variances, they will result in long narrow lots with half the area of the those surrounding them, which are out of character with the Festavon Area. The variances will disrupt the lotting pattern and the streetscape. Thus, the Minor Variance Application does not respect the general intent and purpose of the ZB.

25The intent and purpose of the side yard setbacks is to ensure that there is an adequate buffer between the structures on two adjacent lots. Currently, the side yards are deficient on one side of the dwelling and increase to make up for the deficiency along the same side. The side yard setbacks for the proposed dwellings will be deficient all along both sides of the dwelling for their entire length. The side yard deficiencies do not respect the intent and purpose of the ZB due to the potential for an adverse impact on the neighbouring properties as the result of the limited transition between the proposed buildings and adjacent built form.

3. Is the Variance Desirable?

26The planning evidence relating to the OP showed that the Proposed Development is not compatible with the area and thus, the Tribunal finds that it will not be an appropriate and desirable development of the Subject Property.

4. Is the Variance Minor?

27The planning evidence concerning respect for the OP indicated that the Proposed Development is not minor since they will result in a number of unacceptable adverse impacts. The intensification would not be compatible with the Festavon Area since it will result in undersized lots that do not respect the lot fabric and the resulting built form will be out of character with the area. The Tribunal finds that these unacceptable adverse impacts mean that the proposed variances are not minor.

28In summary, the Tribunal finds that the Minor Variance Application fails to comply with the requirements of s. 45(1) of the Act. It is not minor, desirable for the use and development of the Subject Property and does not maintain the general intent and purpose of both the OP and the ZB.

Consent Application

29In dealing with the Consent Application for the severance of the Subject Property into two new building lots, the Tribunal must consider whether the Consent Application meets the criteria of s. 51(24) of the Act. Based on the planning evidence relating to the Minor Variance Application, the Tribunal finds that these criteria are not met by the Consent Application for the following reasons:

1. The Festavon Area where the Subject Property is located is not an appropriate location for intensification, since the severance will result in two undersized lots that do not respect the Festavon Character.
2. The severance application is not in the interests of the residents of the Festavon Area and thus is not in the public interest.
3. The severance application does not conform to the OP.
4. The Subject Property is not suitable for the purposes for which it is to be subdivided, since the Proposed Development of the Subject Property will not be compatible with the Festavon Area.
5. The dimensions of the two proposed lots are inadequate and would be incompatible with the lot fabric within the Festavon Area.
6. The Proposed Development does not comply with the ZB.

30Based on this planning evidence, the Tribunal finds that Consent Application must be refused since the criteria set out in s. 51(24) of the Act have not been met.

ORDER

31THE TRIBUNAL ORDERS that the appeals are dismissed.

“A. Cornacchia”

A. cornacchia

MEMBER

“P. Tomilin”

p. tomilin

MEMBER

Ontario Land Tribunal

Website: www.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.