Nam v. Richmond Hill (City), 2022 CanLII 37704

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 03, 2022

CASE NO(S).: OLT-22-002443 (Formerly) PL170850

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

Applicant and Appellant: David Nam Subject: Consent Property Address/Description: 96 Elmwood Avenue Municipality: City of Richmond Hill Municipal File No.: B002/17 OLT Case No.: OLT-22-002443 Legacy Case No.: PL170850 OLT Lead Case No.: OLT-22-002443 Legacy Lead Case No.: PL170850 OLT Case Name: Nam v. Richmond Hill (City)

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

Applicant and Appellant: David Nam Subject: Minor Variance Variance from By-law No.: 66-71 Property Address/Description: 96 Elmwood Avenue Municipality: City of Richmond Hill Municipal File No.: A011/17 OLT Case No.: OLT-22-002446 Legacy Case No.: PL170851 OLT Lead Case No.: OLT-22-002443 Legacy Lead Case No.: PL170850

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

Applicant and Appellant: David Nam Subject: Minor Variance Variance from By-law No.: 66-71 Property Address/Description: 96 Elmwood Avenue Municipality: City of Richmond Hill Municipal File No.: A010/17 OLT Case No.: OLT-22-002447 Legacy Case No.: PL170852 OLT Lead Case No.: OLT-22-002443 Legacy Lead Case No.: PL170850

Heard: April 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel
David Nam	John Pappas and Maggie Bassani
City of Richmond Hill	Carlson Thorne

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH AND P. TOMILIN ON APRIL 12, 2022 AND ORDER OF THE TRIBUNAL

BACKGROUND

1David Nam (“Applicant/Appellant”) owns the property known municipally as 96 Elmwood Avenue (“Subject Property”) located at the southeast corner of Elmwood Avenue and Ruggles Avenue and had initially proposed to demolish the existing one-storey dwelling and sever the lot into two parcels along an east-west axis, and construct two new two-storey dwellings each fronting on Ruggles Avenue.

2The Subject Property is located at the southeast corner of Elmwood Avenue and Ruggles Avenue and is 651.44 square metres (“sq. m”) (0.16 acres) in size, rectilinear in shape with 24.38 metres (“m”) of frontage on Elmwood Avenue and 26.67 m of frontage on Ruggles Avenue. It is currently occupied by a one-storey single detached dwelling with frontage and access from Elmwood Avenue with flankage on Ruggles Avenue.

3Surrounding land uses include:

• North: One and two-storey single detached dwellings on the north side of Elmwood Avenue;
• East: A recently renovated and redeveloped two-storey pitch roof single detached dwelling abutting to the east, and one and two-storey single detached dwellings further east.
• South: A recently renovated and redeveloped two-storey single flat roof dwelling abutting to the south, and one and two-storey dwellings further south.
• West: One and two-storey single detached dwellings on the west side of Ruggles Avenue and Elmwood Avenue.

4The retained lot was proposed on the northern lot comprised of a 289.49 sq. m (3,116.04 square feet (“sq. ft.”)) dwelling with a three-car integral garage. The severed lot was proposed to be the southern lot comprised of a 251.67 sq. m (2,708.95 sq. ft.) dwelling with a two-car integral garage. The original proposal would also dedicate a 4.5 m x 4.5 m daylight triangle on the Subject Property.

5The following variances were required to facilitate the original proposal:

Minor Variance Relief Required	By-law Requirement	Retained Lot (North lot)	Severed Lot (South lot)
Increased maximum lot coverage	30%	47.22%	42.61%
Decreased minimum lot frontage	15.24 m (50 ft.)	13.33 m (43.73 ft.)	13.33m (43.73 ft.)
Decreased minimum lot area	464.50 sq. m (5,000 sq. ft.)	314.97 sq. m (3,390.30 sq. ft.)	325.10 sq. m (3,500.00 sq. ft.)
Decreased minimum front yard setback	6.10 m (20 ft.)	5.80 m (19.02 ft.)	5.80 m (19.02 ft.)
Increased maximum gross floor area	203.15 sq. m (2,186.68 sq. ft.)	289.49 sq. m (3,116.04 sq. ft.)	251.67 sq. m (2,708.95 sq. ft.)
Increased maximum building height	8.50 m (27.89 ft.)	10.61 m (34.80 ft.)	9.28 m (30.44 ft.)
Decreased minimum rear yard setback	7.62 m (25 ft.)	4.70 m (15.41 ft.)	4.14 m (13.58 ft.)
Decreased exterior side yard (flankage)	3.048 m (10 ft.)		120 m (3.93 ft.)
Decreased minimum side yard setback (north)	2.11 m (6.92 ft.)	1.2m (3.93 ft.)
Decreased minimum side yards setback (south)	2.11 m (6.92 ft.)	1.47 m (2.10 ft.)
Increased maximum driveway width	6.00 m (19.68 ft.)		7.62 m (25.0 ft.)
Increased maximum encroachment (rear yard)	2.44 m (8 ft.)	2.60 m (8.53 ft.)

6Applications were made to the City’s Committee of Adjustment for the authorization of these variances, as well as for the granting of consents to effect the severance. The applications were refused resulting in appeals to the Local Planning Appeal Tribunal, now the Ontario Land Tribunal.

7Subsequent to the filing of the appeals, the Applicant/Appellant engaged the services of a land use planning consultant and held discussions with the City’s Planning Department.

8The Tribunal had previously scheduled two one-day hearing events for the hearing of these appeals, one on December 4, 2017 and the other on April 6, 2018, both of which were adjourned.

9The parties have since advised the Tribunal that they had reached an agreement as to how development should proceed on the subject lands and are now seeking an order of the Tribunal on consent authorizing the amended variances and granting the provisional consent.

10The Tribunal is satisfied that notice of the amended application is not necessary pursuant to s. 45(18.1.1) of the Planning Act (“Act”). The only evidence before the Tribunal is the Affidavit of Eldon Theodore, sworn March 29, 2022. Mr. Theodore is a qualified professional land use planner. He provided the Tribunal with a comprehensive overview of the applications in relation to the relevant policies.

LOCATION AND SITE CONTEXT

11Mr. Theodore described the greater neighbourhood as being generally bound by Major Mackenzie Drive to the north, Yonge Street to the west, Canterbury Street to the south and Cedar Avenue to the east, and being predominantly residential in nature. He explained that the lotting fabric is eclectic in nature, providing a mix and range of lot sizes and frontages, resulting in a range of dwelling sizes throughout this boundary. In addition, he stated that the neighbourhood is undergoing reinvestment through demolition and replacement of existing lower scale and density dwellings with larger dwellings, further reinforcing the eclectic nature of this community.

12The Subject Property is within walking distance of two major transit station areas: a) Richmond Hill GO train station 700 m northeast of the Subject Property, and b) VIVA Blue rapid transit stop 500 m to the west of the Subject Property. In addition, the Subject Property is within a 500 m walking distance from existing York Region transit routes along both Yonge Street (Routes 98 and 99) and Major Mackenzie Drive (Routes 4, 4A and 25).

13It is also within a five-minute walking distance of shops and services along Yonge Street to the west, the Richmond Hill Central Library to the west, and Lennox Park and Harding Park to the southeast. Furthermore, the Subject Property is within a five to ten-minute walk to Downtown Richmond Hill to the northwest, Mt. Pleasant Park and Alexander Mackenzie High School to the west, and Walter Scott Public School to the east.

REVISED PROPOSAL

14Following discussions with City Staff regarding the original proposal and the appeals, to determine how it could be re-designed to address concerns raised by City staff and residents, the Applicant/Appellant made revisions to the original proposal which consist of the following:

• the Subject Property will be severed into two new residential lots along a north-south axis, with each lot re-oriented to front on Elmwood Avenue as shown on a Draft Reference Plan. This re-orientation allows for deeper front and rear yards. The retained lands comprise the easterly parcel shown as Part 3 of the Draft Reference Plan, with a lot area of 325.1 sq. m and referred to as “House 96A”. The severed lands comprise the westerly parcel shown as Part 1 on the Draft Reference Plan, with a lot area of 314.9 sq. m and referred to as “House 96B”;
• the Revised Proposal will include a daylighting triangle of 4.52 m x 4.52 m (10.2 sq. m in area) at the corner of Elmwood Avenue and Ruggles Avenue, shown as Part 2 on the Draft Reference Plan, to be conveyed to the City;
• the proposed new dwellings have been re-designed to achieve a reduction in overall height and massing of the proposed development;
• the re-design of the proposed new dwellings has achieved a reduction in the total number of variances required, specifically the reduction in the front yards setback, the increase in the rear yard encroachment, and the increase in the maximum driveway width; and
• the re-design of the proposed new dwellings has also achieved a reduction in the magnitude of relief sought by many of the remaining variances by reducing the overall massing of the new dwelling units.

THE REVISED VARIANCES AND CONSENT TO SEVER

15The following are the revised variances being sought in order to facilitate the revised proposal:

Minor Variance Relief Required	By-law Requirement	Retained Lot (Part 3 – east lot)	Severed Lot (Part 1 – west lot)
Increased maximum lot coverage	30%	45%	42%
Decreased minimum lot frontage	15.24 m (50 ft.)	12.1 m (39.7 ft.)	12.1 m (39.7 ft.)
Decreased minimum lot area	464.50 sq. m (5,000 sq. ft.)	325 sq. m (3,498 sq. ft.)	314 sq. m (3,380 sq. ft.)
Decreased minimum front yard setback	6.10 m (20 ft.)	Removed	Removed
Increased maximum gross floor area	203.15 sq. m (2,186.68 sq. ft.)	248 sq. m (2,669 sq. ft.)	224 sq. m (2,411 sq. ft.)
Increased maximum building height	8.50 m (27.89 ft.)	9.3 m (30.5 ft.)	9.3 m (30.5 ft.)
Decreased minimum rear yard setback	7.62 m (25 ft.)	6.3 m (20.7 ft.)	6.3 m (20.7 ft.)
Decreased exterior side yard (flankage)	3.048 m (10 ft.)		2.1 m (6.8 ft.)
Decreased minimum interior side yard setback (north)	2.11 m (6.92 ft.)	(west) 0.9 m (2.9 ft.)
Decreased minimum interior side yards setback (south)	2.11 m (6.92 ft.)	(east) 1.2 m (3.94 ft.)	0.9 m (2.9 ft.)
Increased maximum driveway width	6.00 m (19.68 ft.)	Removed
Increased maximum encroachment (rear yard)	2.44 m (8 ft.)	Removed
Decreased minimum required setback of a driveway from the intersection of two streets	9.14 m (30 ft.)		5.8m

16Mr. Theodore opined that the revised variances represent an overall improvement from, and downscaled version of the original proposal for the following reasons:

• The lot coverage has been decreased for each proposed lot as a result of a reduction in the massing and footprint of the proposed new dwellings;
• The re-orientation of the lot frontages toward Elmwood Avenue allows the proposed new dwellings to meet the front yard setback requirement, removing the need for this variance;
• A 15% and 11% reduction in the Gross Floor Area of the retained lot and severed (corner) lot respectively, bringing the density of each dwelling closer to the Zoning By-law requirement;
• A 1.3 m reduction in the building height for the retained lot, ensuring both new dwellings have a consistent height that is more in keeping with the character of the community;
• An increase in the rear yard setback by 1.6 m for the retained lot and 2.16 m for the severed lot, increasing the separation distance to the property line and existing dwelling to the south;
• Increasing the flankage setback by 0.9 m to 2.1 m, providing a larger built form setback and landscaped flankage to Ruggles Avenue;
• Removal of a proposed three-car garage on the severed (corner) lot to remove the need for a variance to increase the maximum driveway width, and maintaining garage patterns that are in character with the community; and,
• Removal of proposed rear yard patios, thereby removing the previous variance for increased maximum encroachments into the rear yard.

17He also maintains that overall, the proposal will offer two new high quality single detached dwellings to replace the existing single detached dwelling, optimizing the use of the Subject Property and providing additional housing in this evolving community.

THE TESTS UNDER THE PLANNING ACT

18To succeed, an applicant for authorization of variances must satisfy the Tribunal that the four tests set out under s. 45 (1) of the Act are met by the application. The four tests require the applicant to satisfy the Tribunal that the variances:

1. maintain the general intent and purpose of the official plan;
2. maintain the general intent and purpose of the zoning bylaw;
3. are desirable for the appropriate development or use of the land building or structure; and
4. are minor.

19In addition, as with any decision that affects a planning matter, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act and, in accordance with s. 3(5) of the Act, must determine if the requested variance and consent are consistent with the Provincial Policy Statement 2020 (“PPS”) and conform to the Growth Plan for the Greater Golden Horseshoe (“GP”).

20Furthermore, the applicant for consent to sever, must also satisfy the Tribunal that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act. It must also satisfy the Tribunal that the application to sever has regard to the criteria set out in s. 51(24) of the Act.

21Mr. Theodore provided the Tribunal with a comprehensive overview of the applications in relation to the tests required to be met under the Act and concluded that the requested variances are consistent with the PPS, conform to the Growth Plan, and fulfill the criteria of s. 45(1) of the Act in that they maintain the general intent and purpose of the Official Plan, maintain the general intent and purpose of Zoning By-law No. 66-71, are desirable for the appropriate development or use of the subject lands, and are minor in nature. Furthermore, he also concluded that the requested consent has regard for the criteria set out in s. 51(24) of the Act, and that a plan of subdivision is not necessary for the orderly development of the municipality in accordance with s. 53(1) of the Act.

CONDITIONS OF APPROVAL

22Mr. Theodore recommends that the consent to sever and authorization of the minor variances be subject to a number of conditions, with the intent of the conditions related to the authorization of the minor variances being expressly tied to the approval of the consent to sever, and also that construction of the revised proposal be undertaken based on the revised drawings reviewed and agreed to by the City.

23Mr. Theodore opines that these conditions are appropriate, in the public interest and represent good planning.

FINDINGS

24The Tribunal finds that the variances as amended are minor, and therefore, will not order that additional written notice be given pursuant to s. 45(18.1.1) of the Act.

25The Tribunal is satisfied based on Mr. Theodore’s uncontroverted opinion that the revised proposal and the proposed conditions, are in the public interest and represents good planning for the following reasons:

• The requested variances are consistent with the PPS.
• The requested variances conform to the Growth Plan.
• The requested variances do not create any undue impacts to adjacent properties from a planning perspective.
• The requested variances are compatible with the existing and planned character of the neighbourhood.
• The requested variances fulfill the criteria of s. 45(1) of the Act in that they maintain the general intent and purpose of the Official Plan; the general intent and purpose of the Zoning By-law; are desirable for the appropriate development or use of the subject lands; and are minor in nature.
• The requested consent has proper regard for the criteria of s. 51(24) and a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act.

ORDER

26The Tribunal orders that:

1. With respect to the consent to sever application, the Tribunal allows the appeal and grants provisional consent to sever the Subject Property, as illustrated in the Draft Reference Plan, dated April 26, 2021 prepared by Avanti Surveying Inc. referred to in the Affidavit of Eldon Theodore, sworn March 29, 2022 entered as Exhibit 1, Tab M, page 164 of 178, subject to the fulfilment of the conditions set out in Attachment “1” to this Order.

2. With respect to the minor variance application, the Tribunal allows the appeal and authorizes the minor variances to Zoning By-law No. 66-71 for the Subject Property, attached as Attachment “2” to this Order, subject to the following conditions:

3. That development of the revised proposal be substantially in accordance with the Site Plan [A.00], dated September 9, 2020 and prepared by MHBC Planning Urban Design & Landscape Architecture attached to the Affidavit of Eldon Theodore, sworn March 29, 2022 (Exhibit 1, Tab M); and

4. That the approved building height be applied only to a “pitched” roof for zoning purposes.

27The Tribunal may be spoken to should any matters arise respecting the implementation of this Order.

“R.G.M. Makuch”

R.G.M. Makuch VICE-CHAIR

“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.

OLT-22-002443 – Attachment 1

Consent Conditions

Final Consent is subject to the following conditions:

Reference #	Department / Agency Contact:	Condition:
1.	Building/Zoning: Karen Cree 905-771-2435	That the Owner shall apply to and receive from the Council of the City of Richmond Hill demolition approval pursuant to Demolition Control By-law No. 15-90, as amended, and that the Owner shall demolish all buildings and/or structures and remove all debris to the satisfaction of the Chief Building Official.
2.	Development Engineering: Michael Ayers 905-771-9996 Ext. 6426	That the Owner shall convey to the City, free of all costs, objects, structures, and encumbrances, the Daylighting Triangle shown as Part 2 of the R-Plan (being a standard 4.5 metre x 4.5 metre [10.2 square metres in area] daylighting triangle adjoining the subject property at the intersection of the existing rights of way being Elmwood Avenue and Ruggles Avenue, determined by a legal survey). The Owner shall prepare and deposit a reference plan detailing the Daylighting Triangle with the appropriate Land Registry Office, to the satisfaction of the City’s Development Engineering Programs Coordinator, Development Engineering Division.
3.	Development Engineering: Michael Ayers 905-771-9996 Ext. 6426	The Owner shall: 1. submit to the City's Development Engineering Division three (3) copies of a grading plan prepared by a professional engineer or Ontario land surveyor detailing the drainage pattern while showing the existing and proposed elevations for both the Severed and Retained lands along with the adjoining lands; 2. obtain the City's approval of the grading plan referred to in subparagraph (1) herein; 3. enter into an agreement with the City (unless not required by the City further to its review of the grading plan) for either: (i) grading and drainage; or (ii) grading and servicing, which addresses the provision of swales, easements and/or catch basins and which will be registered on title to the Severed and Retained lands in priority to all other claims, encumbrances or other item or matter that the City Solicitor deems to be an encumbrance or claim; and 4. ensure that any easements required to be provided pursuant to the agreement referred to in subparagraph (3) herein are registered in priority to all other claims, encumbrances or any other item or matter that the City Solicitor deems to be an encumbrance or claim.
4.	Development Engineering: Michael Ayers 905-771-9996 Ext. 6426	That the Owner provide to the Development Engineering Division, to the attention of Mr. Michael Ayers, three white prints of the deposited plan of reference which outlines the necessary requirements of all Engineering conditions.
5.	Development Engineering: Mario Di Salvo 905-780-2949	The Owner shall arrange and pay to the City for the installation of service connections to render the Severed and Retained Lands fully serviced. The City’s Tariff of Fees By-law shall be used to determine the amount of payment for the service connections.
6.	Finance: Christina Giannakakis 905-771-5550	No parkland or Cash-in-lieu is required as a condition of consent. However the Applicant (owner) should be made aware that the City will require land to be conveyed for park or other public recreation purposes or, at the option of the City, a payment of Cash-in-lieu of such land prior to the issuance of a building permit pursuant to Section 42 of the Planning Act. The Owner shall enter into an agreement acknowledging the foregoing, which agreement shall be registered on title to the severed parcel for the purpose of notice. Further the Owner shall pay the City the cost set out in the City’s Tariff of Fee by-law with respect to the preparation, processing and registration of the Agreement. If the Owner does not wish to enter into the above Agreement the Owner may voluntarily pay any Cash-in-Lieu owing under Section 42 of the Planning Act prior to the granting of the Consent. The Applicant (Owner) may determine the amount of cash-in-lieu required by contacting the Finance Department.
7.	Finance: Christina Giannakakis 905-771-5550	The Owner shall pay to the City all current and outstanding taxes to the date of consent.
8.	Region of York Gabrielle Hurst 1-877-464-9675 Ext. 71538	Prior to the approval of the Consent application, the City of Richmond Hill shall confirm that adequate water supply and sewage capacity has been allocated for the proposed new lots.
9.	Committee of Adjustment: 905-771-2443	That Minor Variance Applications A010/17 and A011/17, as revised, be approved by the Ontario Land Tribunal.
10.	Committee of Adjustment: 905-771-2443	The Owner shall provide the Committee of Adjustment’s Secretary-Treasurer with the legal description of the Severed Lands in the form of a letter or draft transfer prepared by the Owner’s solicitor.
11.	Committee of Adjustment: 905-771-2443	The Owner shall provide the Committee of Adjustment’s Secretary Treasurer one white print of the deposited plan of reference of the entire land which conforms substantially with the Revised Proposal.
12.	Committee of Adjustment: 905-771-2443	That the Solicitor for the Owner shall give an undertaking in writing to provide to the Committee of Adjustment’s Secretary-Treasurer, within 30 days of the date of registration in the Land Registry/Land Titles Office, a copy of the receipted and registered electronic transfer document including the Form 2 for Consent Application B002/17.

OLT-22-002443 – Attachment 2

House 96A (Retained Lands – Part 3 on Draft R-Plan)

1. Minimum Lot Area To permit a reduced minimum lot area from 464.5 m² (5,000 ft²) to 325 m² (3,498 ft²).

2. Minimum Lot Frontage To permit a reduced minimum lot frontage from 15.24 m (50 ft) to 12.1 m (39.7 ft).

3. Minimum Rear Yard Setback To permit a reduced minimum rear yard setback from 7.62 m (25 ft) to 6.3 m (20.7 ft).

4. Minimum Interior Side Yard (West) Setback To permit a reduced minimum interior side yard (west) setback from 2.11 m (6.92 ft) to 0.9 m (2.9 ft).

5. Minimum Interior Side Yard (East) Setback To permit a reduced minimum interior side yard (east) setback from 2.11 m (6.92 ft) to 1.2 m (3.94 ft).

6. Maximum Gross Floor Area To permit an increased maximum gross floor area from 185.77 m² (1,999.7 ft²) to 248 m² (2,669 ft²).

7. Maximum Lot Coverage To permit an increased maximum lot coverage from 30% to 45%.

8. Maximum Building Height To permit an increased maximum building height from 8.5 m (27.89 ft) to 9.3 m (30.5 ft).

House 96B (Severed Lands – Part 1 on Draft R-Plan)

1. Minimum Lot Area To permit a reduced minimum lot area from 464.5 m² (5,000 ft²) to 314 m² (3,380 ft²).

2. Minimum Lot Frontage To permit a reduced minimum lot frontage from 15.24 m (50 ft) to 12.1 m (39.7 ft).

3. Minimum Rear Yard Setback To permit a reduced minimum rear yard setback from 7.62 m (25 ft) to 6.3 m (20.7 ft).

4. Minimum Exterior Side Yard (Flankage) Setback To permit a reduced minimum exterior side yard (flankage) setback from 3.05 m (10 ft) to 2.1 m (6.8 ft).

5. Minimum Interior Side Yard (East) Setback To permit a reduced minimum interior side yard (east) setback from 2.11 m (6.92 ft) to 0.9 m (2.9 ft).

6. Maximum Gross Floor Area To permit an increased maximum gross floor area from 185.77 m² (1,999.7 ft²) to 224 m² (2,411 ft²).

7. Maximum Lot Coverage To permit an increased maximum lot coverage from 30% to 42%.

8. Maximum Building Height To permit an increased maximum building height from 8.5 m (27.89 ft) to 9.3 m (30.5 ft).

9. Minimum Required Setback of a Driveway from the Intersection of Two Streets To permit a reduced minimum required setback of a driveway from the intersection of two streets from 9.14 m (30 ft) to 5.8 m (19 ft).