Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 17, 2022

CASE NO(S).: OLT-21-001700

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

Applicant and Appellant: Walkers Green Residences Ltd.

Subject: Minor Variance

Property Address/Description: 4030 Upper Middle Road

Variance from By-law: 2020

Municipality: City of Burlington

Municipal File No.: 540-02-A-094/2018

OLT Lead Case No.: OLT-21-001700

OLT Case No.: OLT-21-001700

OLT Case Name: Walkers Green Residences Ltd. V. Burlington (City)

Heard: May 24, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Walkers Green Residences Ltd.	Jacob Polowin
City of Burlington	Lauren Pinder

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

Introduction

1This Decision determines the appeal filed by Walkers Green Residences Ltd. (the “Appellant”) pursuant to s. 45(12) of the Planning Act (the “Act”) of the City of Burlington’s (the “City”) Committee of Adjustment (the “COA”) decision which approved three of the ten minor variances requested to permit an additional fifth-storey to an already previously approved four-storey application for 4030 Upper Middle Road, Burlington, Ontario (the “Subject Property / Lands”).

2The Subject Property is located south of Upper Middle Road and east of Walkers Line in the City of Burlington. The area surrounding the intersection of Upper Middle Road and Walkers Line consists of commercial uses at all four corners of the intersection. The intersection is surrounded by high density development in the form of four-storey apartment buildings and medium density development in the form of townhouses and stacked townhouses.

3Directly to the north of the Subject Property is Upper Middle Road and further north there is a townhouse development and a commercial complex. East of the Subject Lands is natural heritage lands associated with the valley corridor of Shoreacres Creek. Further east is the Tansley Woods Community Centre and Public Library. South of the Subject Lands is a residential development consisting of townhouses, stacked townhouses and the Heritage Place retirement home, a four-storey building. West of the Subject Lands is a commercial development consisting of a bank, multiple restaurants and other commercial uses in a commercial complex. Further west on the west side of Walkers Line is another commercial complex, four-storey apartment buildings and townhouses.

4The Subject Property is serviced by two existing bus routes, Route 12 along Upper Middle Road and Route 25 along Walkers Line providing connections throughout the City, with Route 12 providing a connection to the Burlington Go Station. Service frequency is every 30 minutes throughout the majority of the day except for before 6am and after 6pm which is every hour. Upper Middle Road and Walkers Line are classified as Minor Arterial Roads in the City of Burlington Official Plan (the “BOP”) – Schedule J. Tobyn Drive is classified as a Local Road.

5There are a number of pedestrian trails and linkages in the area, including a multi-use path along Upper Middle Road and Walkers Line, as well as a multi-use path to the east of the Subject Lands adjacent to Shoreacres Creek and Tansley Woods Community Centre, which provide a connection to the Tansley Woods Park to the south of the Subject Lands.

6The Subject Property is approximately 3.088 hectares in area, with approximately 192 metres of frontage along Upper Middle Road and 30 metres of frontage on Tobyn Park Drive.

PROCEDURAL HISTORY OF THE APPLICATION

7Previous applications for a Site Plan Approval (City File Number 535-9/12) and Minor Variances (City File Numbers 530-2-A1/2013 and A223/2002) were approved by the City to facilitate the proposed development, being one four-storey apartment building along the western limits of the site (SP), and one four-storey apartment building along the southern limits of the site (4040 Upper Middle Road). The four-storey building along the southern limits of the site (4040 Upper Middle Road) received building permits and has since been constructed.

8The previous Site Plan Approval allowed for both 4030 and 4040 Upper Middle Road to be constructed at four-storeys with 165 and 91 units and 290 and 156 parking spaces respectively.

9A previously approved Zoning By-law Amendment (City File Number 2020.228) created a site-specific exception to the Residential High Density Zone (RH), 378, for the Subject Property which established setbacks from the exterior lot lines of the Subject Lands for all buildings.

10Since the time of approvals, the Appellant has proceeded to finalize the condominium details for 4040 Upper Middle Road and has submitted a Standard Condominium Application (City File Number 525-11/19). The Appellant has also decided to seek an amendment to the existing Site Plan Agreement to permit a five-storey building on 4030 Upper Middle Road where a four-storey building was previously approved, and submitted a Site Plan Amendment Application (City File Number MM-007/18).

11These applications triggered the need for minor variance applications to facilitate the proposed construction. The variances were determined to be required through the zoning review process for these applications. The Standard Condominium Application triggered the need for a minor variance to the standard zone regulations for the Subject Lands as in the City of Burlington, the zoning regulations must be reviewed to the Condominium boundaries rather than the exterior property boundaries, resulting in the need for variances to the applicable setback provisions. Additionally, the Site Plan Amendment Application that proposed an additional storey and additional units for 4030 Upper Middle Road triggered the need for a minor variance to parking rate provisions in the By-law for both 4030 and 4040 Upper Middle Road.

12A final Minor Variance Application was submitted on November 6, 2020, after City By-law comments and questions were received. An updated dimensioned plan was submitted on February 4, 2021 and a COA hearing was then scheduled for April 14, 2021.

13The Planning Report presented to the COA confirmed the following variances were being requested for the Subject Property:

1. To permit a 14m setback abutting the north property line (future Condominium limit line) for the proposed five storey apartment building including balconies instead of the minimum required 20m to facilitate a future Standard Condominium Application.

2. To permit parking spaces to be located 3.9 m from a window of a habitable room for dwelling units located on the ground floor or basement instead of the minimum required 6 m for a proposed five storey apartment building.

3. To permit 0.2 (43) visitor parking spaces per unit instead of the minimum required 0.35 (75) to facilitate a proposed fifth storey to the approved four storey apartment building.

4. To permit 1.0 (151) occupant parking spaces per one-bedroom unit instead of the minimum required 1.25 (189) for 151 proposed one-bedroom units to facilitate a proposed fifth storey to the approved four storey apartment building.

5. To permit 1.25 (79) occupant parking spaces per two-bedroom unit instead of the minimum required 1.50 (95) to facilitate a proposed fifth storey to the approved four storey apartment building.

6. To permit 71% (196) of required occupant spaces to be enclosed in a below-grade structure instead of the minimum required 75% (205) to facilitate a proposed fifth storey addition to the approved four storey apartment building.

7. To permit 8 designated accessible occupant parking spaces instead of the minimum required 9 to facilitate a proposed fifth storey to the approved four storey apartment building.

8. To permit development on a parcel of land (future Condominium) that does not have frontage on a public street where the By-law requires that no building or structure shall be constructed on a parcel of land which does not have frontage on a public street to facilitate the proposed Condominium at 4040 Upper Middle Road.

9. To permit 36 below-grade parking spaces for Block 1 (4030 Upper Middle Road) to have temporary access through Block 2 (4040 Upper Middle Road) instead of each parking space being readily accessible without obstructions at all times for the parking and removal of a motor vehicle.

10. To permit a 0m setback for the existing below-grade parking structure for the existing four-storey building to the north, west and east property lines (proposed condominium limit line) instead of the minimum required 3m to facilitate the proposed Condominium at 4040 Upper Middle Road.

14The Planning Staff supported all the variances except for variance in paragraph [13] item 7 above.

15The COA’s decision approved the following variances:

1. To permit a 14m setback abutting the north property line (future Condominium limit line) for the proposed five storey apartment building including balconies instead of the minimum required 20m to facilitate a future Standard Condominium Application.

2. To permit development on a parcel of land (future Condominium) that does not have frontage on a public street where the By-law requires that no building or structure shall be constructed on a parcel of land which does not have frontage on a public street to facilitate the proposed Condominium at 4040 Upper Middle Road.

3. To permit a 0m setback for the existing below-grade parking structure for the existing four-storey building to the north, west and east property lines (proposed condominium limit line) instead of the minimum required 3m to facilitate the proposed Condominium at 4040 Upper Middle Road.

16The COA also implemented the following conditions for the approved variances:

The following conditions must be satisfied within 2 years:

1. The Applicant shall obtain a Consolidated Pre-Building permit clearance.

17Following the decision by the COA, the Appeal to the City’s Zoning By-law No. 2020.414 was decided by the Ontario Land Tribunal on May 21, 2021 (case PL190525) which implemented the following new parking rate provisions as follows:

a. 1 occupant space per one-bedroom unit;

b. 1.25 occupant spaces per two-bedroom unit;

c. 1.5 occupant spaces per three or more bedroom unit;

d. 0.25 visitor spaces per unit; and

e. 1 additional space per 75 units for the use of maintenance vehicles serving the site.

18Due to this decision, the variances before the Tribunal at this hearing are:

1. To permit a 14m setback abutting the north property line (future Condominium limit line) for the proposed five storey apartment building including balconies instead of the minimum required 20m to facilitate a future Standard Condominium Application.

2. To permit parking spaces to be located 3.9 m from a window of a habitable room for dwelling units located on the ground floor or basement instead of the minimum required 6 m for a proposed five storey apartment building.

3. To permit 0.2 (43) visitor parking spaces per unit instead of the minimum required 0.25 (54) to facilitate a proposed fifth storey to the approved four storey apartment building.

4. To permit development on a parcel of land (future Condominium) that does not have frontage on a public street where the By-law requires that no building or structure shall be constructed on a parcel of land which does not have frontage on a public street to facilitate the proposed Condominium at 4040 Upper Middle Road.

5. To permit 36 below-grade parking spaces for Block 1 (4030 Upper Middle Road) to have temporary access through Block 2 (4040 Upper Middle Road) instead of each parking space being readily accessible without obstructions at all times for the parking and removal of a motor vehicle.

6. To permit a 0m setback for the existing below-grade parking structure for the existing four-storey building to the north, west and east property lines (proposed condominium limit line) instead of the minimum required 3m to facilitate the proposed Condominium at 4040 Upper Middle Road.

19Due to discussions between the City and the Appellant, an additional variance has been requested to be added for the Hearing of this matter. The requested variance is as follows:

11. To permit 0 maintenance vehicles per unit instead of the minimum required 1 additional space per 75 units for the use of maintenance vehicles servicing the site to facilitate a proposed fifth storey to the approved four storey apartment building.

20The positions of the City and the Appellant were that this added variance was minor in nature with regard to s. 45(18) of the Act. It was the submission of the City and the Appellant that this added variance would not require further notice pursuant to s. 45 (18.1.1) of the Act. The Tribunal agreed and no further notice would be required.

EVIDENCE AND SUBMISSIONS

21The Tribunal heard from only one witness, Melinda MacRory, an Associate with MHBC Planning, on behalf of the Appellant. Ms. MacRory was affirmed and qualified without objection, to provide expert opinion evidence in the area of land use planning.

Planning evidence

22The Tribunal must consider whether the variances have sufficient regard to the provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests of a minor variance in s. 45(1) of the Act.

PROVINCIAL POLICY STATEMENT, 2020

23Ms. MacRory opined that the Amended Application before the Tribunal is consistent with the PPS including the following policies:

1.1.2 Sufficient land shall be made available to accommodate an appropriate range and mix of land uses to meet projected needs for a time horizon of up to 25 years, informed by provincial guidelines. However, where an alternate time period has been established for specific areas of the Province as a result of a provincial planning exercise or a provincial plan, that time frame may be used for municipalities within the area.

Within settlement areas, sufficient land shall be made available through intensification and redevelopment and, if necessary, designated growth areas.

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

1.1.3.2 Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion;

c) minimize negative impacts to air quality and climate change, and promote energy efficiency;

d) prepare for the impacts of a changing climate

e) support active transportation;

f) are transit-supportive, where transit is planned, exists or may be developed; and

g) are freight-supportive

1.1.3.6 New development taking place in designated growth areas should occur adjacent to the existing built-up area and should have a compact form, mix of uses and densities that allow for the efficient use of land, infrastructure and public service facilities.

24The PPS directs development to established built-up areas where there is existing municipal infrastructure. Intensification and redevelopment are encouraged as is a range and mix of housing types and densities.

25Ms. MacRory opined that the approval of the proposed variances would maintain the existing residential uses on the Subject Property and would allow for intensification of the Subject Lands which is compatible with adjacent uses and would appropriately utilize existing infrastructure.

26In Ms. MacRory’s opinion, the variances are consistent with the policy objectives of the PPS.

GROWTH PLAN FOR THE GREATER HORSESHOE, 2019

27Ms. MacRory opined that the Growth Plan sets out broad policies for the development of urban areas in the Greater Golden Horseshoe, including the promotion of compact urban form through the intensification of existing urban areas. The intent is to use land and infrastructure better to avoid the outward expansion of our communities.

28Ms. MacRory opined that the specific policies that are relevant to the Application before the Tribunal are policies 2.2.1.2(a), 2.2.1.4(c), (e) and (f), and policy 2.2.6.

29Policy 2.2.1.2(a) speaks to the forecasted growth as follows:

2.2.1.2 Forecasted growth to the horizon of this Plan will be allocated based on the following:

a) the vast majority of growth will be directed to settlement areas that:

i. have a delineated built boundary;

ii. have existing or planned municipal water and wastewater systems; and

iii. can support the achievement of complete communities;

30Policy 2.2.1.4 states that the Growth Plan will support the achievement of complete communities that:

c) provide a diverse range and mix of housing options, including additional residential units and affordable housing, to accommodate people at all stages of life, and to accommodate the needs of all household sizes and incomes;

e) provide for a more compact built form and a vibrant public realm, including public open spaces;

f) mitigate and adapt to the impacts of a changing climate, improve resilience and reduce greenhouse gas emissions, and contribute to environmental sustainability.

31Policy 2.2.6 for housing includes the following:

1. Upper and single-tier municipalities, in consultation with lower-tier municipalities, the Province, and other appropriate stakeholders, will:

a) support housing choice through the achievement of the minimum intensification and density targets in this Plan, as well as the other policies of this Plan by:

i. identifying a diverse range and mix of housing options and densities, including additional residential units and affordable housing to meet projected needs of current and future residents; and

ii. establishing targets for affordable ownership housing and rental housing;

b) identify mechanisms, including the use of land use planning and financial tools, to support the implementation of policy 2.2.6.1 a);

c) align land use planning with applicable housing and homelessness plans required under the Housing Services Act, 2011;

d) address housing needs in accordance with provincial policy statements such as the Policy Statement: “Service Manager Housing and Homelessness Plans”; and

e) implement policy 2.2.6.1 a), b), c) and d) through official plan policies and designations and zoning by-laws.

2. Notwithstanding policy 1.4.1 of the PPS, 2020, in implementing policy 2.2.6.1, municipalities will support the achievement of complete communities by:

a) planning to accommodate forecasted growth to the horizon of this Plan;

b) planning to achieve the minimum intensification and density targets in this Plan;

c) considering the range and mix of housing options and densities of the existing housing stock; and

d) planning to diversify their overall housing stock across the municipality.

3. To support the achievement of complete communities, municipalities will consider the use of available tools to require that multi-unit residential developments incorporate a mix of unit sizes to accommodate a diverse range of household sizes and incomes.

4. Municipalities will maintain at all times where development is to occur, land with servicing capacity sufficient to provide at least a three-year supply of residential units. This supply will include, and may exclusively consist of, lands suitably zoned for intensification and redevelopment.

5. When a settlement area boundary has been expanded in accordance with the policies in subsection 2.2.8, the new designated greenfield area will be planned in accordance with policies 2.2.6.1 and 2.2.6.2.

32Ms. MacRory opined that the Application does conform to the Growth Plan for the Greater Golden Horseshoe, 2019.

THE LEGISLATIVE TESTS OF A MINOR VARIANCE

33The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. The tests require that that the variances:

a. maintain the general intent and purpose of the Official Plan;

b. maintain the general intent and purpose of the Zoning By-law;

c. be desirable for the appropriate development or use of the land, building or structure; and

d. be minor in nature.

MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE BOP

34Ms. MacRory stated that the SP is designated “Residential Areas” in Schedule A – Settlement Pattern and “Residential – High Density” in Schedule B – Comprehensive Land Use Plan – Urban Planning Area in the BOF. Ms. MacRory stated that the Subject Property meets the following policies:

35The “Residential – High Density” designation permits a wide variety of uses including street townhouses, stacked townhouses, back-to-back townhouses, attached housing and apartments as stated in General Policy 2.2.2.g.(iii):

Building form g) The following building forms for residential development shall be permitted:

High Density (iii) subject to the density requirements of Part III, Subsection 2.2.2 e), street townhouses and stacked townhouses, back-to-back townhouses, attached housing and apartments shall be permitted in Residential-High Density areas.

36Ms. MacRory opined that the general policies of the BOP support intensification within the Urban Area if infrastructure capacity, compatibility and integration with existing residential neighbourhoods are also balanced and scale (Policy 2.2.1.a), and urban design and community features are considered (Policy 2.5.1.a). The proposed development implements intensification that can adequately be supported by existing infrastructure as reviewed and confirmed by previous approvals, is considered compatible to the existing neighbourhood in terms of design and scale, and is well integrated as a high density node at a major intersection that transitions to medium density uses to the south followed by low density residential. The proposal also contributes to providing a wider range of housing types and tenure and increases housing stock in the area with the high-density block offering condominium style apartment units with one and two-bedroom units (Policy 2.2.1.f).

Policy 2.2.1(a) states:

To encourage new residential development and residential intensification within the Urban Planning Area in accordance with Provincial growth management objectives, while recognizing that the amount and form of intensification must be balanced with other planning considerations, such as infrastructure capacity, compatibility and integration with existing residential neighbourhoods.

Policy 2.5.1(a) states:

To encourage residential intensification as a means of increasing the amount of available housing stock including rooming, boarding and lodging houses, accessory dwelling units, infill, re-development and conversions within existing neighbourhoods, provided the additional housing is compatible with the scale, urban design and community features of the neighbourhood.

Policy 2.2.1(f) states:

To encourage the integration of a wide range of housing types and tenure and discourage large concentrations of higher density residential blocks.

37Ms. MacRory opined that the proposed development includes the re-development of an under-utilized site for non-ground-oriented housing purposes at the periphery of an existing residential neighbourhood. The general intent and purpose of the BOP is to promote development and intensification within lands designated as Residential - High Density with densities ranging from 51 to 185 units per net hectare and Floor Area Ratio of 2.2.1. The proposed development implements a permitted use, the planned density and the Floor Area Ratio for the Subject Property.

38In Ms. MacRory’s opinion, the minor variances meet the general intent and purpose of the BOP.

MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW

39Ms. MacRory stated the Subject Lands are currently zoned as Residential High Density - 4 (RH4-378) in Zoning By-law 2020. The RH4-378 Zone permits a wide range of uses, including apartment buildings, stacked townhouses, back-to-back townhouses, street townhouses and retirement homes. The provisions applicable to the SP are included in the following table along with the proposed reductions. The table also includes the parking provisions incorporated through the new Parking By-law 2020.414 which are now in-effect:

Provision	Requirement	Proposed - 4030 Upper Middle Road
RH4 Zone – General Provisions
Lot Width	45 m	86.2 m
Lot Area	0.2 ha	13185.4 sq. m./1.318 ha
Amenity Area	25 sq. m. per bedroom	25 sq. m. per bedroom
Landscape Area and Buffer	4.5 m abutting a street having a deemed width up to 26 m	< 4.5 m abutting Upper Middle Rd.
Parking	1 occupant space per one bedroom unit	1 per
	1.25 occupant spaces per two bedroom unit	1.25 per
	1.5 occupant spaces per three or more bedroom	N/A
	0.25 visitor spaces per unit	0.20 per
	1 additional space per 75 units for the use of maintenance vehicles servicing the site	214 units 3 spaces
Designated Accessible Parking Spaces	Over 90 spaces – 3% of required parking Total of 271 required spaces = 8 spaces required	8 proposed
Enclosed Occupant Parking	RH4 Zone: 75% of all required occupant parking	85%
H-RH4-378 Site-Specific Regulations:
Max. Height	7 storeys, within 60 m of the southerly property boundary; 8 storeys, abutting the easterly property boundary and Upper Middle Road	5 storeys
Landscaped Area and Buffer	Not required, abutting westerly property boundary; Not required, abutting southerly property boundary.	N/A
Density	Does not apply	N/A
Floor Area Ratio	2.2:1 maximum	1.43:1 Based on GFA of: 18,941 sq. m.
Total Ground Floor Area for retail, service commercial and office uses	2500 sq. m.	N/A
Building Setbacks
From Tobyn Drive	7.5 m	N/A
From north property line	20 m	14 m
From south property line	15 m	23.2 m
From east property line	6 m	8.96 m
From west property line	13 m	13.02 m
From pipeline easement	2 m	> 2 m
General Provisions for Residential Zones
Parking Lot	Parking lots shall be setback 4.5 m from a street line.	24.256 m to northern property limit
Parking Spaces and Driveways	For apartment buildings 4 storeys or more in height, driveways shall be setback 9 m and parking spaces 6 m from a window of a habitable room in dwelling units located on the ground floor or basement.	9 m for driveways 3.9 m for parking
General Provisions for Parking Structures
Entrance and exit ramps to below grade and above grade parking structures	Entrance and exit ramps to below grade and above grade parking structures or buildings shall be setback 7.5 m from a street line.	65.3 m
Below grade parking structures	Below grade parking structures shall not extend into a required landscape buffer and shall be setback 3 m from all other property lines and street lines.	0 m setback for below grade parking to condominium lines > 3 m setback from below grade parking from all other property lines
Parking Space Size & Accessibility
Size and accessibility	Each parking space shall have a minimum width of 2.75 m and a minimum area of 16.5 sq. m. and be readily accessible without obstructions at all times for parking and removal of a motor vehicle without the necessity of moving any other vehicle or obstruction. The minimum area of a parking space may include walkways for residential uses only.	36 below-grade parking spaces for Block 1 (4030 Upper Middle Road) to have temporary access through Block 2 (4040 Upper Middle Road) instead of each parking space being readily accessible without obstructions at all times for the parking and removal of a motor vehicle.
Frontage On a Public Street
Frontage on a Public Street	Excepting Lots of Record and Parcels of Tied Land in a Common Element Condominium Corporation, no building or structure shall be constructed on a parcel of land which does not have frontage on a public street.	Development on a parcel of land (future Condominium) that does not have frontage on a public street where the Bylaw requires that no building or structure shall be constructed on a parcel of land which does not have frontage on a public street.

40The reduced parking rate proposed for the development at 1 space per 1-bedroom unit, 1.25 spaces per 2-bedroom unit, 0.2 spaces per unit for visitors, and 3% of all parking for accessible parking stalls (based on these noted rates) is considered appropriate for the proposed development as discussed in the Parking Justification Report prepared by Paradigm and submitted with the previous submission dated July 2018, and the Addendum Letter dated October 1, 2020. As noted, these rates are now in effect except for the visitor rate which was approved at 0.25 spaces per unit.

41Minor reductions to the required setbacks from habitable rooms to parking stalls is required. The By-law requires 6 metre setbacks from parking stalls to habitable rooms. Block 1 implements a minimum setback of 3.9 metres. This reduction is considered minor and there will be landscaping and a pedestrian sidewalk between the units and parking providing a landscaped buffer and providing for patio access to the ground floor units.

42The reduced setbacks to habitable rooms were previously approved as part of a Minor Variance application in 2002 (A223/2002). The previous approval for proposed reductions for both Blocks represents support from the City that this variance maintains the general intent and purpose of the Zoning By-law.

43The proposed reduction to the northern property line setback from 20 m to 14 m is only required when assessing the regulation to the condominium lines rather than the lot lines. The minimum provisions are maintained when considered for the entire lot. Given that the Subject Property will develop with the appearance of one comprehensive development, this reduction is technical in nature and the proposed development continues to maintain the general intent and purposes of the Zoning By-law.

44Similarly, the proposed reduction to the below-grade parking structure setback from 3 m to 0 m is only required when assessing the regulation to the condominium lines rather than the lot lines. A 3 m setback is provided to the exterior lot lines for the shared underground parking structure. Therefore, this reduction is technical in nature and the proposed development continues to maintain the general intent and purposes of the Zoning By-law.

45Similarly, the variance to allow for the development on a parcel of land (future Condominium) that does not have frontage on a public street where the By-law requires that no building or structure shall be constructed on a parcel of land which does not have frontage on a public street, is only required due to the implementation of condominium lines. Block 1 (4030 Upper Middle Road) will maintain access through Block 2 (4040 Upper Middle Road) to Tobyn Drive and therefore, this variance is also technical in nature and the proposed development continues to maintain the general intent and purposes of the Zoning By-law.

46The variance to allow for 36 below-grade parking spaces for Block 1 to have temporary access through Block 2, rather than each parking space being readily accessible without obstructions at all times is only required because currently Block 1 has not been constructed and therefore access to the existing underground parking spaces already built for Block 1 can only currently be accessed through Block 2. Again, this variance is technical in nature and once Block 2 is constructed will technically not be required. Therefore, the proposed development continues to maintain the general intent and purposes of the Zoning By-law.

47The variance to permit 0 maintenance vehicles per unit instead of the minimum required 1 additional space per 75 units (3 spaces for 214 units) for the use of maintenance vehicles servicing the site is a minor reduction. Maintenance vehicles typically service residential buildings during business hours when the visitor parking demand is lower, therefore it is expected that the maintenance vehicles can be accommodated in the visitor parking. Consequently, the proposed development continues to maintain the general intent and purpose of the Zoning By-law.

48Based on this evidence, Ms. MacRory opined that the purposed variances meet the general intent and purposes of the City’s Zoning By-law.

DESIRABLE FOR THE APPROPRIATE USE OF THE LAND

49Ms. MacRory opined that the proposal has been subject to previous planning applications where it has been determined that the proposed development represents an appropriate development and use for the lands. The proposed reductions to the zoning provisions for the north property line setback, below grade parking setback as well as the below-grade parking access and variance to allow for development on a parcel of land that does not have frontage on a public street are all only required due to the implementation of Standard Condominiums on the Subject Property. The implementation of the Standard Condominiums requires the zoning provisions to be considered from the condominium lines rather than the external lot lines. The proposed development complies to the zoning provisions in this regard when taken from the external lot lines and therefore these variances are technical in nature and do not impact the appropriateness of the development for the Subject Property. Further, the reduced setbacks to the condominium lines rather than the lot lines were approved by the COA for the Subject Property.

50Ms. MacRory also opined that the reduced parking rates are appropriate for the Subject Property as they allow for the opportunity to minimize surface parking and underground parking to limit the development footprint, maximize landscaped area, and provide parking that is adequate for the proposed use without resulting in an excess and surplus parking. The proposed development is condominium in tenure, therefore, parking is tied to the unit which will ensure that units are purchased in accordance with demand for parking. The reduced parking rate proposed for the development is considered appropriate for the proposed development as discussed in the Parking Justification Report prepared by Paradigm and submitted with the previous submission dated July 2018, and the Addendum Letter dated October 1, 2020. The reduced parking rate for maintenance vehicles servicing the site is a minor reduction and due to the fact that maintenance vehicles typically service residential buildings during business hours when the visitor parking demand is lower it is expected that the maintenance vehicles can be accommodated in the visitor parking, therefore, not impacting the appropriate use of the Subject Property.

51A minor reduction to the required setback for parking to habitable rooms does not impact the appropriateness of the development on the SP as the reduction is minor and will be mitigated with landscaping. As noted, the reduced setbacks to habitable rooms were previously approved as part of a Minor Variance application in 2002 (A223/2002). The previous approval for proposed reductions for both 4030 and 4040 Upper Middle Road represents support from the City that this variance does not impact the appropriateness of the development on the Subject Property.

52In her opinion, Ms. MacRory stated the proposed variances are desirable and an appropriate use of the land.

MINOR IN NATURE

53Ms. MacRory opined that the test for development is not a test of “no impact”, but rather, impact that rises to the level of being unacceptable adverse impact of a planning nature. The variances do not create any undue adverse impacts on the streetscape or the adjacent neighbours.

54The proposed reductions to the zoning provisions for the north property line setback, below grade parking setback, as well as the below-grade parking access and variance to allow for development on a parcel of land that does not have frontage on a public street, are all only required due to the implementation of Standard Condominiums on the Subject Lands. The proposed development complies to the zoning provisions in this regard when taken from the external lot lines and therefore these variances are technical in nature and are considered minor in order to implement a Standard Condominium for the Subject Property.

55The proposed reduced parking rates are now in accordance with the in-effect Zoning By-law No. 2020.414. Further, the reduced parking rates are considered appropriate for the proposed development as discussed in the Parking Justification Report prepared by Paradigm and submitted with the previous submission dated July 2018, and the Addendum Letter dated October 1, 2020. The reduced parking rate for maintenance vehicles servicing the site is a minor reduction since maintenance vehicles typically service residential buildings during business hours when the visitor parking demand is lower, therefore it is expected that the maintenance vehicles can be accommodated in the visitor parking.

56The proposed reduced setback from parking spaces to habitable rooms represents a minor decrease from the requirement. There will be landscaping and a pedestrian sidewalk along with a corridor providing a landscaped buffer and providing for patio access to the ground floor units.

57In her opinion, Ms. MacRory states that the proposed variances individually and collectively do not create any undue adverse impact and are minor in nature. The letters of opposition that were received addressed concern with reduced resident and visitor parking rates and concern with allowing temporary access for Block 2 (4040 Upper Middle Road) through Block 1 (4030 Upper Middle Road) to access parking spaces in the shared underground parking. As noted above, the resident and visitor parking variances are no longer required. The temporary access is only required for Block 1 to conform to the zoning provision before its construction when access will be provided. Further, this variance is only required when assessing the zoning provision to the condominium line rather than the exterior lot lines since the underground parking is shared between both Block 1 and 2 buildings. Therefore, it is Ms. MacRory’s opinion that the parking and access issues do not create any undue adverse impact.

58In conclusion, Ms. MacRory opined that the Application has regard for matters of provincial interest and are consistent with the PPS. The minor variances meet the tests as required in s. 45(1) of the Act in that they maintain the general intent and purpose of the BOP, the general intent and purpose of the Zoning By-law, are appropriate and desirable for the use and development of the property and are minor in nature.

FINDINGS

59Based on the uncontroverted evidence provided by Ms. MacRory, the Tribunal finds that the minor variances have appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan.

60The Tribunal finds the requested variance meets the four tests of s. 45 (1) of the Act:

a. the general intent and purpose of the BOP is maintained;

b. the general intent and purpose of the ZBL is maintained;

c. the variance is considered desirable for the appropriate development of the land; and

d. the variance is minor in nature.

ORDER

61The Tribunal Orders that the appeal is allowed in part and the variances to the City of Burlington By-law 2020 are authorized as listed below and subject to the conditions in attachment 1:

a. To permit a 14 m setback abutting the north property line (future Condominium limit line) for the proposed five storey apartment building including balconies instead of the minimum required 20 m to facilitate a future Standard Condominium Application.

b. To permit parking spaces to be located 3.9 m from a window of a habitable room for dwelling units located on the ground floor or basement instead of the minimum required 6 m for a proposed five storey apartment building.

c. To permit 0.2 (43) visitor parking spaces per unit instead of the minimum required 0.25 (54) to facilitate a proposed fifth storey to the approved four storey apartment building.

d. To permit development on a parcel of land (future Condominium) that does not have frontage on a public street where the By-law requires that no building or structure shall be constructed on a parcel of land which does not have frontage on a public street to facilitate the proposed Condominium at 4040 Upper Middle Road.

e. To permit 36 below-grade parking spaces for Block 1 (4030 Upper Middle Road) to have temporary access through Block 2 (4040 Upper Middle Road) instead of each parking space being readily accessible without obstructions at all times for the parking and removal of a motor vehicle.

f. To permit a 0 m setback for the existing below-grade parking structure for the existing four-storey building to the north, west and east property lines (proposed condominium limit line) instead of the minimum required 3 m to facilitate the proposed Condominium at 4040 Upper Middle Road.

g. To permit 0 maintenance vehicles per unit instead of the minimum required 1 additional space per 75 units for the use of maintenance vehicles servicing the site to facilitate a proposed fifth storey to the approved four storey apartment building.

“s. deBoer”

s. deboer

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.

ATTACHMENT 1

Requested Conditions of Approval

As updated with Applicant’s requested wording

1. A Zoning Clearance Certificate is required for the proposed fifth storey.
2. The applicant shall submit a landscape plan (with plant keys), section(s) and details for approval as a part of the concurrent application for Minor Modification Site Plan Approval with special care given to mitigating the impact of headlight glare and noise from the parking area to the adjacent residential unit, to the satisfaction of City Planning staff. For greater clarity, salt-resistant plant species will be permitted.