Amrit Dhoot v. City of Mississauga, 2022 CanLII 32478

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 19, 2022

CASE NO(S).: OLT-21-001305

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

Applicant/Appellant: Amrit Dhoot

Subject: Consent

Property Address/Description: 1079 Roosevelt Road

Municipality: City of Mississauga

Municipal File No.: B42/21

OLT Case No.: OLT-21-001305

OLT Lead Case No.: OLT-21-001305

OLT Case Name: Dhoot v. Mississauga (City)

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

Applicant/Appellant: Amrit Dhoot

Subject: Consent

Property Address/Description: 1079 Roosevelt Road

Municipality: City of Mississauga

Municipal File No.: B43/21

OLT Case No.: OLT-21-001307

OLT Lead Case No.: OLT-21-001305

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

Applicant/Appellant: Amrit Dhoot

Subject: Minor Variance

Variance from By-law No.: 0225-2007

Property Address/Description: 1079 Roosevelt Road

Municipality: City of Mississauga

Municipal File No.: A270/21

OLT Case No.: OLT-21-001308

OLT Lead Case No.: OLT-21-001305

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

Applicant/Appellant: Amrit Dhoot

Subject: Minor Variance

Variance from By-law No.: 0225-2007

Property Address/Description: 1079 Roosevelt Road

Municipality: City of Mississauga

Municipal File No.: A271/21

OLT Case No.: OLT-21-001309

OLT Lead Case No.: OLT-21-001305

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

Applicant/Appellant: Amrit Dhoot

Subject: Minor Variance

Variance from By-law No.: 0225-2007

Property Address/Description: 1079 Roosevelt Road

Municipality: City of Mississauga

Municipal File No.: A272/21

OLT Case No.: OLT-21-001310

OLT Lead Case No.: OLT-21-001305

Heard: March 9 to 11, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
Amrit Dhoot (“Applicant”)	D. Bronskill
City of Mississauga (“Appellant”)	A. Biggart

DECISION DELIVERED BY BLAIR S. TAYLOR AND INTERIM ORDER OF THE TRIBUNAL

PREAMBLE

“What must be pointed out, at the outset, is the potent and binding nature of Provincial Plans”.

Sentinel (Broadway) Holdings Inc. v. Toronto (City), [2014] O.M.B.D. No. 447 (Board File No. PL130547) (“Sentinel”)

INTRODUCTION

1The Applicant owns the lands known municipally as 1079 Roosevelt Road (“Subject Lands”) and had filed consent applications and minor variance applications seeking to create a 3 lot development with one detached dwelling and two semi-detached dwellings. The applications were denied by the Committee of Adjustment and the Applicant appealed to the Tribunal.

DECISION

2For the reasons set out below, the Tribunal will:

a. allow in principle the consent appeals subject to the finalization of conditions of provisional consent;

b. allow in principle the minor variance appeal for the rear yard setback on proposed Lot 1 subject to the finalization of conditions of approval;

c. deny the minor variance appeals with regard to the requested height variances for the semi-detached units on proposed Lots 2 and 3;

d. direct counsel to submit draft conditions of provisional consent; and

e. direct counsel to submit draft conditions of approval for the minor variance for the rear yard setback on proposed Lot 1.

CONTEXT

3The Subject Lands are located at the end of Roosevelt Road, which is a cul-de-sac and hence the Subject Lands are irregular in shape. The Subject Lands have about 26.1 metres (“m”) of frontage, and an area of about 1,183.1 square metres (“sq m”).

4In the larger geographic context, the Subject Lands are located north of Lakeshore Road East, west of the Cooksville Creek, south of the railway tracks, and east of Seneca Avenue. North and east of the Subject Lands are the rear yards of properties fronting onto Revus Avenue and Shaw Drive. To the northwest is a commercial plaza and associated parking. To the east and west and south are mainly detached dwellings with a number of semi-detached dwellings.

5Again, in the larger geographic context, the Subject Lands are located between two GO Train station stops: the first about 1.4 kilometres to the west, and the second 3.7 kilometres to the east. Additionally with regard to public transit, Lakeshore Road East is designated as a Higher Order Transit Corridor and is the eastern extension of the north/south Higher Order Transit Corridor on Hurontario Street.

6The Subject Lands are presently improved with a detached bungalow set well back on the lot.

7The Subject Lands are designated Residential Low Density II in the City’s Official Plan, and were zoned R3-75 (detached dwellings only) at the date of the development applications , but are now zoned RM2-42 (in force and of effect as of January 19, 2022 with no appeals filed by the February 16, 2022 appeal date), and now allows semi-detached dwellings.

8The development proposal, as noted above, proposed to create 3 lots, with a detached dwelling on proposed Lot 1, and two semi-detached dwellings on proposed Lots 2 and 3. To facilitate this development proposal, a considerable number of variances for all three of the proposed lots were originally required including relief for lot area, lot frontage, lot coverage, front, rear, and side lot setbacks, and height for the semi-detached units.

Zoning By-law No. 0007-2022

9However, as the City had directed a study of potential zoning by-law amendments for the Lakeview West Neighbourhood Character Area, and as staff had reported to City Council recommending certain amendments, City Council on January 19, 2022, passed Zoning By-law No. 0007-2022, which made semi-detached dwellings a permitted use with corresponding new regulations for:

a. lot area,

b. lot frontage,

c. lot coverage, and

d. setbacks.

10Thus, as a result of the zoning amendment, the requested variances were reduced to:

a. for proposed Lot 1, a rear yard setback of 2.44 m whereas 7.5 m is required, and

b. for proposed Lot 2 and Lot 3, a flat roof height of 9.8 m whereas 7.5 m is permitted.

THE HEARING

11At the hearing, the Tribunal heard the expert land use planning evidence of Andrew Ferancik on behalf of the Applicant, and Connor DiPietro on behalf of the City.

12There were no requests for party or participant status by any neighbour, or any residents’ association.

REGULATORY REGIME

13From the Planning Act (“PA”), the Tribunal observes that two of the purposes of the PA in s. 1.1 are to provide for a land use planning system led by provincial policy (b), and to recognize the decision-making authority and accountability of municipal councils in planning (f).

14Next the Tribunal notes a number of Provincial Interests as set out in s. 2 of the PA including: the orderly development of safe and healthy communities (h), the adequate provision of a full range of housing including affordable housing (j), the appropriate location of growth and development (p), and the promotion of development that is designed to be sustainable, to support public transit, and oriented to pedestrians (q).

15The Tribunal confirms that s. 3(5) of the PA mandates that Tribunal decisions with regard to planning matters shall be consistent with the Provincial Policy Statement (“PPS”) and shall conform to A Place to Grow: the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).

16Of significance for this hearing are the provisions of the PA relating to both the consent applications and the minor variance applications.

17Where a plan of subdivision is not required, s. 53(1) of the PA directs the reader to s. 51(24) which sets out a number of criteria to be considered including but not limited to the following:

a. The effect of development on the matters of provincial interest;

b. Whether the proposed plan is premature or in the public interest;

c. Whether the plan conforms to the Official Plan and adjacent plans of subdivision;

d. The suitability of the land for the purposes for which it is to be subdivided;

e. The number, width, location and proposed grades and elevations of highways;

f. The dimensions and shapes of the proposed lots;

i. The adequacy of utilities and municipal services; and

j. The adequacy of school sites;

18From s. 45(1) of the PA come the four tests for a minor variance:

a. Is the general intent and purpose of the Official Plan maintained?

b. Is the general intent and purpose of the Zoning By-law maintained?

c. Is it desirable for the appropriate development or use of the land?

d. And is it minor in nature?

POLICY REGIME

19Turning now to the policy regime, the Tribunal will consider the relevant provisions of the PPS, the Growth Plan, the Region of Peel Official Plan, the City’s Official Plan, the City’s Secondary Plan and Guidelines, and the City’s Zoning By-law.

Provincial Policy Statement

20The Vision Statement in Part IV of the PPS outlines that the PPS focuses growth and development in urban settlement areas, encourages a range and mix of housing options including new development and intensification, and encourages efficient development patterns that optimize the use of land, resources, and public investment in infrastructure. These efficient land use patterns are to promote a mix of housing including affordable housing.

21Moving from the Vision Statement to the policies of the PPS, one finds these directives:

• Healthy, liveable and safe communities are sustained by:

i. Promoting efficient development and land use patterns (1.1.1(a));

ii. Accommodating an appropriate affordable and market-based range and mix of residential types (1.1.1(b));

iii. Promoting the integration of land use planning, growth management, transit supportive development, intensification, optimization of transit investments, and standards to minimize land consumption and servicing costs (1.1.1(e)).

• Settlement areas shall be the focus of growth and development (1.1.3.1).

• Appropriate development standards should be promoted which facilitate intensification, redevelopment, and compact form (1.1.3.4).

• Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents by: …directing the development of new housing towards locations where appropriate levels of infrastructure and public services facilities are …promoting densities for new housing which efficiently use land, resources, infrastructure, and public service facilities, and support the use of active transportation and transit in areas where it exists, or is to be developed… requiring transit supportive development and prioritizing intensification in proximity to transit,… and establishing development standards for residential intensification, redevelopment and new residential development which will minimize the cost of housing and facilitate compact form, while maintaining appropriate levels of public health and safety (1.4.3 (c, d, e, f)).

• And finally, that the official plan is the most important vehicle for the implementation of the PPS (4.6).

The Growth Plan

22Under the heading of “Where and How to Grow” in s. 2.1, the Growth Plan provides that:

It is important to optimize the use of existing urban land supply as well as the existing building and housing stock to avoid over-designating land for future urban development while also providing flexibility for local decision-makers to respond to housing need and market demand. This Plan’s emphasis on optimizing the use of the existing urban land supply represents an intensification first approach to development and city-building, one which focuses on making better use of our existing infrastructure and public service facilities, and less on continuously expanding the urban area. (Emphasis added)

23Thus the Growth Plan directs the vast majority of growth to settlement areas that have delineated built boundaries (s. 2.2.2.1(a)) and directs that within those areas, all municipalities will develop a strategy to achieve the minimum intensification target and encourage intensification generally throughout the delineated built-up area and be implemented through official plan policies and designations, updated zoning, and other supporting documents (s.2.2.2.3).

Region of Peel Official Plan (“ROP”)

24The ROP in s. 5.5 addresses Growth Management and in so doing recites the requirements of the Growth Plan with regard to intensification. In s. 5.5.3.1 the ROP sets out the Regional objectives which include achieving compact and efficient urban forms, to intensify development on underutilized lands, and to optimize all intensification opportunities across the Region. Thus, the policy of the Regional Council is to facilitate and promote intensification (s. 5.5.3.2.2).

City of Mississauga Official Plan (“LOP”)

25Under the heading of the “Current Context”, s. 4.3 notes that the City is at the end of its greenfield growth phase and new residential development is expected to be accommodated in already developed areas in compact forms such as townhouses and apartments.

26The Subject Lands are designated Neighbourhoods, which s. 5.3.5 notes are characterized as physically stable areas with a character that is to be protected and therefore such areas are not appropriate for significant intensification. The introduction goes on to state that such neighbourhoods will not remain static or that new development must imitate previous development patterns, but that such development should be sensitive to the neighbourhood’s existing and planned character.

27The policies that follow in s. 5.3.1 provide that residential intensification will generally occur through infilling, where the proposed development is compatible in built form and scale, and is sensitive to the existing and planned context.

28Section 9.2.2 is entitled Non-Intensification Areas which includes Neighbourhoods and it provides guidance with regard to new development in s. 9.2.2.3:

While new development need not mirror existing development, new development in Neighbourhoods will:

A. respect existing lotting forms;

B. respect the continuity of front, rear and side yard setbacks;

C. respect the scale and character of the surrounding area;

D. minimize overshadowing and overlook on adjacent neighbours

E. incorporate stormwater best management practices;

F. preserve mature high quality trees and ensure replacement of the tree canopy, and

G. be designed to respect the existing scale, massing, character and grades of the surrounding area.

29The Subject Lands are also designated Residential Low Density II which permits detached dwellings, semi-detached dwellings, duplex dwellings, and triplexes, street townhouses, and other forms of low-rise dwellings with individual frontages.

Lakeview Local Area Plan (“LLAP”)

30The Subject Lands are found within the LLAP. Thus there are also official plan policies for the Subject Lands in the LLAP.

31The LLAP directly deals with intensification in s. 6.0 where it provides for modest infilling in neighbourhoods, and s. 6.1 encourages a variety of housing forms, that intensification will be sensitive to the existing character of the residential area and the planned context. Section 6.2 notes the LOP designation of Lakeshore Road East as a Higher Order Transit Corridor.

32Figure B2 illustrates that the Subject Lands are found within the South Residential Precinct, and further that they are within the Lakeview West Neighbourhood Character Area (“Lakeview West”).

33Lakeview West is noted as having potential for intensification in s. 10.1.4.1, and s. 10.3 addresses the built form types including detached dwellings and semi-detached dwellings and that new housing should maintain the existing character of the area, and new development will fit the scale of the surrounding area.

34Appendix 1 to the LLAP is the Lakeview Built Form Standards (“Standards”), the purpose of which is to provide further guidance of the policies in the LOP and the LLAP. It notes that the Standards establish and illustrate general requirements to achieve a high quality urban form, site development and public realm.

35Section 2.2 addresses Built Form Types by typology and s. 2.2.1 deals with Detached and Semi-Detached Dwellings, Duplexes and Triplexes:

New detached, semi-detached, duplex and triplex dwellings within Lakeview will maintain the existing character of the area. The following criteria will apply:

A. The maximum height of any dwelling should be 10.7 m. The design of the building will de-emphasize the height of the house and be designed as a composition of small architectural elements, i.e. projecting dormers and bay windows;

B. new development will preserve and enhance the generous front, rear and side yard setbacks;

C. New development will ensure that existing grades and drainage conditions are preserved;

D. New development will fit the scale and character of the surrounding area and take advantage of the features of a particular site, i.e. topography, contours, mature vegetation, location to railway tracks;

E. Garages will be recessed or located behind the main face of the house. Alternatively, garages will be located in the rear of the property;

F. New development will have minimal impact on its adjacent neighbours with respect to overshadowing and overlook;

G. New development will minimize the hard surfaces areas in the front yard;

H. New development will preserve existing high quality trees to maintain the existing established nature of these areas;

I. New house designs which fit the scale and character of the local area, and take advantage of the particular site features will be encouraged;

J. The use of standard, repeat designs is strongly discouraged; and

K. The building mass, side yards and rear yards will respect and relate to those of adjacent lots. (emphasis added)

Zoning

36As noted above, in the period between the development applications and the hearing of this matter, the applicable zoning changed significantly.

37Of note from the study was the public submission that Roosevelt Road was different from the other areas within the study and ought to be excluded; however the Planning Staff response was to include Roosevelt Road within the rezoning area.

38Also of note is that despite the 10.7 m height referenced in LLAP, the recommendation was to allow a maximum building height of 9.5 m for sloped roofs, and 7.5 m for flat roofs.

39City Council accepted the staff recommendation, and passed By-law No. 0007-2022 on January 19, 2022, with the last date to appeal being February 16, 2022. With no appeals, the rezoning by-law came into force and effect.

40The Tribunal notes that the City’s Zoning By-law defines both a “flat roof” and a “sloped roof”: Flat Roof means a roof where 50% or more of the total roof area has a roof angle of less than 15% above the horizontal; and Sloped Roof means a roof with a roof angle greater than or equal to 15% and less than 60% above the horizontal.

Consents

41The City contests the consent appeals on the basis of s. 51(24) of the PA that:

• the development proposal is not in conformity with the City Official Plan (c);

• is not in the public interest (b),

• that the dimensions of (and the shape of) the proposed northern lot are irregular and not in harmony with the existing character of the area (f); and

• the resulting building location is irregular and should not be approved (f).

42In support of this argument, the City points to a recent development approval for 1078 Roosevelt Road which is the mirror image of the Subject Lands, on the west side of Roosevelt Road. It too is at the very end of the cul-de-sac. It, however, was approved for a severance for two detached units, which the City argues is modest intensification that is consistent with the PPS, the Growth Plan and the LOP.

43Exhibit 2 at Figure 24 contains the approved Minor Variance and Consent Plans for 1078 Roosevelt Road. The figure illustrates the severance creating two lots for the detached dwellings with the northerly lot having a setback of 1.94 m to the commercial plaza to the north, and a rear yard setback of 27.76 m to the parking lot of the adjoining apartment building to the west. The Tribunal notes that the setback to the northerly lot line was considered in that instance a side yard setback.

44The Applicant’s land use planner disagrees with the City and submits that additional residential housing in a built-up area should be optimized, especially where it is in proximity to public transit, utilizes existing municipal infrastructure and proposes a detached dwelling and semi-detached dwellings both of which typologies are located in the area and on Roosevelt Road. Such intensification he opines is consistent with the PPS, the Growth Plan, the ROP, and is modest intensification that conforms to the LOP.

45With regard to the rear yard setback, the Applicant’s land use planner noted that the Subject Lands had an irregular shape due to the location at the end of the cul-de-sac and with the proposed severances, the “effective” rear yard for Lot 1 would have a depth of over 29 m (although it would come to a point due to the lotting pattern as it abuts rear yards from both Revus Avenue and Shaw Drive) but had an ample rear yard amenity area of about 150 sq m.

Variances

46As noted above, for proposed Lot 1 the only required variance is for a rear yard setback of 2.44 m whereas 7.5 m is required.

47The City argues that such a rear yard setback is not in keeping with the other generous rear yards in the area and does not meet the general intent and purpose of the Official Plan, that the proposed rear yard deficiency is so large as to not meet the general intent and purpose of the Zoning By-law, and so large as not to be a minor variance, and finally that a rear yard so close to the neighbouring residential properties to the north would interfere with their privacy and with windows on the second floor would provide an overlook into those rear yards.

48Counsel for the Applicant points out that the Subject Lands are firstly irregular in nature themselves, that the severance at 1078 Roosevelt Road allowed for a 1.94 m setback to the north, that the proposed rear yard will have itself an amenity area of about 150 sq m that is ample in size, that the City is using an inappropriate mathematical approach to a minor variance request, and that no neighbours or residents’ association had a concern with the development proposal as they were not in attendance.

49The height variances sought for proposed Lot 2 and 3 are for a flat roof at 9.8 m, whereas 7.5 m is permitted.

50In this regard, counsel for the City argues that the ink is barely dry on the Zoning By-law Amendment to change the zoning from R3-75 to RM2-42, and City Council had made a conscious choice not to allow a height limit of 10.7 m as shown in LLAP, but rather had decided that the appropriate height for a flat roof was 7.5 m.

51Counsel for the City also provided plans for other semi-detached dwellings that had the street appearance of a flat roof, but were in fact sloped roof dwellings that complied with the Zoning By-law at 9.5 m.

52Thus, it was argued that a flat roof at 9.8 m did not meet the general intent and purpose of the Zoning By-law, was not a minor variance, and should not be allowed.

53Counsel for the Applicant submitted that a passerby on the street when looking at some of the apparently flat roof semi-detached dwellings at 9.5 m high, would be hard pressed to perceive that there was a sloped roof involved. If the Tribunal were to approve such a variance to the passerby on the street, such heights would be very compatible with the other properties on the street.

JURISPRUDENCE

54The Tribunal is mandated by s. 3(5) of the PA to render decisions that are consistent with the PPS and conform to the Growth Plan.

55In that regard the Tribunal notes the following direction in Sentinel, supra. There the Tribunal’s predecessor, the Ontario Municipal Board (“OMB”) provided the following:

What must be pointed out, at the outset, is the potent and binding nature of the Provincial Plans. The Board doesn’t only mean that decision-maker cannot readily ignore the fact that the Growth Plan and the RTP act as mandatory guides to planning and development. That much is never in doubt. Provincial Plans bind decision-makers not only in the larger sphere of rule-making, such as the design of a master planning document or a comprehensive zoning by-law. They bind them also in this following sense: these Plans are both omnipotent and omnipresent. Section 3(5) of the Planning Act ensures that every time a decision is made, whether it is by a municipality, a local board, the Minister of the Crown, or, indeed the Board, the concern of conformity to the provincial plans is ever-urgent and ever-present. Such mandatory conformity applies, irrespective whether it is a minor or major event, as long as it affects a planning matter. (Emphasis added)

56Counsel for the City directed the Tribunal to the Divisional Court case of Vincent v. DeGasperis 2005 CanLII 24263 (ON SCDC), [2005] O.J. No. 2890 (“DeGasperis”) and specifically to this passage:

A variance can, in certain circumstances, be patently too large to quality as minor even if it will likely have no impact whatsoever on anyone or anything. This can occur, for example, with respect to the first building on a property in a new development or in a remote area far from any other occupied properties. (Emphasis added)

57Counsel for the Applicant responded by highlighting the OMB decision of Toronto Standard Condominium Corp. #1517 v. Toronto (City) Committee of Adjustment, [2006] O.M.B.D. No. 707 (Board File No. PL 051279) (“Concord Adex”) issued June 21, 2006, dealing also with a minor variance appeal. There the Board considered DeGasperis in light of McNamara Corporation Ltd. and Colekin Investments Ltd. (1977), 1977 CanLII 1050 (ON HCJ), 15 O.R. (2d) 718. McNamara provided this guidance:

The Legislature by s. 42(1) confided to committees of adjustment and ultimately to the Municipal Board the authority to allow “minor variances”. The statute does not define these words and their exact scope is likely incapable of being prescribed. The term is a relative one and should be flexibly applied: Re Perry et al. and Taggart et al., 1971 CanLII 488 (ON HCJ), [1971] 3 O.R. 666, 21 D.L.R. (3d) 402 (Ont. H.C.). No hard and fast criteria can be laid down, the question whether a variance is minor must in each case be determined in the light of the particular facts and circumstances of the case. In certain situations, total exemption from a by-law will exclude a variance from falling into the category of “minor variances”. But not necessarily so. In other situations, such a variance may be considered a minor one. It is for the committee and, in the event of an appeal, the Board to determine the extent to which a by-law provision may be relaxed and a variance still classed as “minor”. (Emphasis added)

58The OMB decision in Concord Adex carries on to say:

The dicta of McNamara [sic] have not been overruled or overturned by the most recent DeGasperis case. This is not surprising as the ratio decidendi of McNamara [sic] has stood the test of time because the judgment recognizes and pays homage to two very important underlying principles. Firstly, whether it is “minor” or not cannot be regarded as a robotic exercise of the degree of numeric deviation, but must be held in light of the fit of appropriateness, the sense of proportion, a due regard to the built and planned environ, the reasons for which the requirement is instituted, the suggested mitigation conditions to address possible concerns and last, but not the least, the impact of the deviation. Secondly, McNamara [sic] recognizes that the performance standards of the zoning by-law are not an end, but a means to an end…Furthermore, a long line of Board cases has held that the assessment of whether it is minor or not cannot be fathomed on an a priori basis. It has been our consistent practice that the question of minor is best assessed on an empirical, a concrete and fact-specific basis. In other words, a seemingly “small” deviation may not quality as “minor”. On the other hand, a seemingly “large” deviation or an obliteration of the numeric requirement may be quite appropriate. In short, the numbers themselves are devoid of meaning unless the context is known and rationale for those numbers are known. (Emphasis added)

COMMENTARY AND ANALYSIS

59The Tribunal has considered the following factors:

• The PPS and the Growth Plan direct intensification to settlement and built-up areas with existing infrastructure on underutilized parcels of land especially in proximity to existing or planned public transit;

• The Growth Plan directs an intensification first approach in order to optimize the use of the existing land supply;

• The Subject Lands are designated Low Density II in the LOP which permits both detached and semi-detached units;

• The Subject Lands are zoned to permit detached and semi-detached units, as proposed by the Applicant;

• The Subject Lands are found in a neighbourhood with access to all municipal services and infrastructure and is located within easy walking distance to the Higher Order Transit Corridor planned for Lakeshore Road East;

• The Subject Lands are irregular in shape as a result of their location at the end of the bulb of the cul-de-sac which is Roosevelt Road;

• At present the Subject Lands have a one storey dwelling that is significantly set back from Roosevelt Road, so far back as to be behind the proposed semi-detached units planned for Lots 2 and 3;

• As of right, the existing one storey dwelling could be converted to a two storey dwelling, creating possibly the overlook and privacy issues advanced by the City;

• The consent and minor variance applications for the lands at 1078 Roosevelt Road resulted in two detached dwellings with the northerly setback being about 1.94 m (as a side yard setback to a commercial plaza);

• The City’s new zoning by-law RM2-42 now permits both detached and semi-detached dwellings, with new zoning regulations such that the three proposed lots comply with the lot frontage requirements, the lot area requirements, and all of the set back requirements, save and except for the proposed rear yard setback for proposed Lot 1, and the heights proposed for the two semi-detached units;

• Notwithstanding the new zoning provisions, City Council determined, (contrary to LLAP) in January of 2022 when considering the new zoning, that the height requirements would be 7.5 m for a flat roof, and 9.5 m for a sloped roof.

60It is uncontested that the three lot development satisfies all the matters of Provincial Interest in s. 2 of the PA, is consistent with the PPS and conforms to the Growth Plan as representing intensification in a settlement/built-up area, utilizing all existing municipal services and infrastructure and being in close proximity to public transit.

61To both parties, the Subject Lands represent an underutilized parcel that is opportune for intensification: the Applicant seeking three lots, with the City advocating two lots.

62The Growth Plan specifically provides an emphasis on optimizing the use of the existing land supply with an intensification first approach. While the City suggests that the intensification should be restricted to a two lot severance and therefore be “modest” as specified in the LOP, the Tribunal disagrees as both the PPS and the Growth Plan direct intensification within settlement and built-up areas, especially in close proximity to public transit, and the LOP permits both detached and semi-detached dwellings as does the new zoning by-law RM2-42 and all of which is proposed here and which will result in an efficient, compact form, optimizing the existing land supply.

63While the proposed Lot 1 may be irregular in shape, the rear yard has an amenity area that is appropriate in size, and creation of this lot would implement the PPS direction that appropriate development standards should be promoted which facilitate intensification.

64The Tribunal finds that all of the criteria in s. 51(24) of the PA are met and more specifically, the Tribunal finds that the three lot development proposal conforms to the Official Plan (c) as being a modest form of intensification with built forms that are permitted in the LOP, is not premature and is in the public interest (c) as providing additional housing that will be transit supportive, the Subject Lands are suitable for the purposes for which they are to be subdivided (d), and as the existing lot is irregular in shape by necessity its subdivision will also be irregular, but certainly adequate for its intended purpose (f).

65The Tribunal raised the question of appropriate draft conditions of approval with the Applicant’s land use planner, for which he had none. The City’s land use planner referred the Tribunal to the Planning staff report of July 7, 2021, and Appendix A.

66The Tribunal having reviewed Appendix A noted to the parties that the usual cash-in-lieu of parkland and other usual conditions of approval such as cash contributions for street trees etc. were absent from Appendix A.

67The Tribunal was advised by City counsel that in the event the Tribunal were to grant provisional consent for the development proposal that the City would in fact be seeking its usual conditions of approval including cash-in-lieu and that counsel for the Applicant and the City could fashion an appropriate set of draft conditions of approval for the Tribunal’s consideration. Counsel for the Applicant agreed.

68Accordingly the Tribunal will allow the consent appeals in principle, subject to being provided with an appropriate set of draft conditions of provisional consent.

Variances

69Turning to the rear yard setback variance proposed for Lot 1, the concerns raised by the City relate to a numeric approach to the variance as simply being too large (2.44 m v 7.5 m), that it does not meet the general intent and purpose of either the Official Plan or the RM2-42 zoning provisions and is not desirable nor minor in nature as that with the two storey detached dwelling there will be 4 windows on the ground floor and 4 windows on the second floor, and the side of a balcony which will result in adverse impacts by enabling overlook and result in loss of privacy to those rear yards abutting to the north in particular.

70Counsel for the Applicant points out that the Tribunal and its predecessor, the OMB have consistently advanced the position that minor variances are not to be determined on a numeric basis but rather that the numbers are a means to an end and that end is good planning.

71The Tribunal concurs.

72Each minor variance must be considered in its own context and set of circumstances, and such is the case here. Moreover, with the Provincial direction to intensify within settlement areas and built-up areas and optimize the existing urban land supply, the PPS direction to look to appropriate zoning standards is relevant.

73The land use planner for the Applicant testified that in his opinion the requested variance was a “technical” one, based on the City’s interpretation (which was not contested by the Applicant) that the northerly yard would be the rear yard and what was proposed was 2.44 m, but testified that the “side yard” (i.e., behind the proposed detached dwelling) would have a depth of over 29 m, and an amenity area of about 150 sq m, all of which was an appropriate amenity area. He pointed out that the property at 1078 Roosevelt Road that had an approved consent for two lots resulted in a northerly setback of 1.94 m.

74With regard to the concerns of overlook and potential loss of privacy at the ground level, the Tribunal finds that there will not likely be any overlook or privacy issues, as presumably the windows will look out on a fence separating the properties. With regard to the second floor, counsel for the Applicant indicated that he would have no objection to a condition of approval that would shield the side of the balcony from northerly views. With regard to overlook at the second floor level from the proposed windows counsel noted that there were no other parties or participants to the hearing and no objections were heard except from the City at the hearing.

75The Tribunal will accept counsel’s suggestion with regard to a draft condition providing for shielding on the side of the proposed balcony.

76In an abundance of caution with regard to the 4 second floor windows, there are mitigation measures that could be readily advanced to address concerns of overview and privacy. The Tribunal will require a condition of approval that will address the second floor windows facing north toward the rear yards on Revus Road to be, for example, opaque (perhaps bathroom windows?) or located 2 m above the floor level to thus allow light in, but prevent any issues of overlook.

77The Tribunal directs counsel to work co-operatively with regard to the drafting of these conditions.

78Thus the Tribunal will allow in principle the variance appeal on proposed Lot 1, subject to the finalization of appropriate draft conditions of approval.

79Turning to the height variances requested for the flat roofs of the semi-detached units, the land use planner for the Applicant pointed out other semi-detached dwellings in the surrounding area that had similar heights and building facades.

80Counsel for the City, at the request of the Tribunal, put into evidence two such other developments for semi-detached units, but both of those, while giving the appearance of a flat roof, were in fact sloped roofs at 9.5 m in height.

81To the Tribunal, this height variance for each of the semi-detached dwellings simply fails the test of meeting the general intent and purpose of the Zoning By-law.

82To the City’s credit, it had directed a study be undertaken for this area and that study resulted in zoning changes: a new RM2-42 zone which permitted semi-detached units, and changed the zoning regulations for frontage, lot area, and other setback requirements, but what it did not change was the permitted height for flat roofs and sloped roofs.

83As counsel for the City submitted, it is hardly fair to say that the requested variances meet the general intent and purpose of the Zoning By-law when the ink is barely dry on the new Zoning By-law.

84To the Tribunal the general intent and purpose of the Zoning By-law is abundantly clear: while City Council intended to broaden the permitted uses and the regulations to do so, City Council clearly chose to maintain the established heights at 7.5 m for a flat roof and 9.5 m for a sloped roof.

85Counsel for the Applicant submits that there is no real difference between a 9.8 m flat roof and a 9.5 m sloped roof except that the sloped roof that “…has a little hat on it.”

86The Tribunal disagrees.

87It is clear that City Council directed its mind to this issue and after making significant changes to the zoning for permitted uses, frontage requirements and lot areas etc., the City choose to maintain the existing height.

88One of the purposes of the PA is to recognize the decision-making authority and accountability of municipal councils in planning (1.1(f)). One of the tests in s. 45(1) of the PA for a variance is that it meet the general intent and purpose of the Zoning By-law.

89In these circumstances, with a brand new zoning by-law passed by City Council after a land use planning study that made significant changes to the zoning provisions for this area but kept the existing height provisions, the Tribunal cannot find that the proposed variances for height for the semi-detached units meet the general intent and purpose of the Zoning By-law. Moreover, in these circumstances, the Tribunal finds that the requested height variances would not be desirable for the appropriate use or development of the Subject Lands, and would not in these circumstances be minor in nature as effectively setting a precedent for height when the ink on the Zoning By-law is not yet dry.

90The requested variances for height are denied.

SUMMARY

91In summary, the appeals of the consents are approved in principle subject to receiving an appropriate set of draft conditions of provisional approval, failing which I may be spoken to.

92With regard to the variance requested for the rear yard setback on proposed Lot 1, that appeal is approved in principle subject to receiving an appropriate set of draft conditions, failing which I may be spoken to.

93With regard to the variances requested for height for the semi-detached units, those variances are denied.

94The Tribunal directs that counsel forward to the Case Coordinator on or before Friday, May 27, 2022, the draft conditions of approval for the provisional consent and the draft conditions of approval for the minor variance for proposed Lot 1, or failing which, a written status update addressed to the Case Coordinator.

95In the event that neither is received, the Tribunal may dismiss the appeals.

96This is the Interim Order of the Tribunal.

“Blair S. Taylor”

Blair s. taylor

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.