Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 28, 2022
CASE NO(S).: PL210216
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Fayar Esrafili
Subject: Minor Variance
Variance from By-law No.: 6000-17
Property Address/Description: 60 Fairway Dr.
Municipality: Town of Aurora
Municipal File No.: MV-2020-23
OLT Case No.: PL210216
OLT File No.: PL210216
OLT Case Name: Esrafili v. Aurora (Town)
Heard: September 10, 2021 by Video Hearing
APPEARANCES:
Parties
Fayar Esrafili
Counsel
M. Kemerer
Parties
Town of Aurora
Counsel
L. Boritz
DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL
1Fayar Esrafili (“Applicant”) has appealed the decision of the Town of Aurora (“Town”) Committee of Adjustment (“CoA”) for a denial of an application for a Minor Variance under section 45(12) of the Planning Act (“Act”) for the property municipally known as 60 Fairway Drive (“Subject Site”).
2The Subject Site currently consist of a bungalow, pool and shed that are proposed to be demolished or removed. The Applicant proposes to replace the existing structures and is seeking a permit to construct a two-storey single detached dwelling, pool, and cabana.
3To complete the proposed development, the Applicant is requesting two minor variances to Zoning By-law No. 6000-17 ("ZBL"):
A footprint of 247.6 square metres where the ZBL as amended permits a maximum footprint of 235 square metres.
A gross floor area ("GFA") of 484.3 square metres where the ZBL as amended permits a maximum GFA of 370 square metres.
EXPERT WITNESSES
4Hearing no objections of concerns from the Parties, the Tribunal accepted their signed acknowledgement of expert duties and qualified the following individuals as experts in their respective fields:
- Max Sherman - Applicant's expert witness in land use planning.
- Amir Eghtesadi - Applicant's expert witness in structural engineering.
- Aleksander Markovic - Applicant's expert witness in housing design.
- Anna Henriques - Town's expert witness in land use planning.
- Glen McArthur - Town's expert witness in engineering.
POSITION OF THE APPLICANT
5It was the planning opinion of Mr. Sherman that the proposed development requested meets the required four tests of a minor variance and the relief being sought should be considered minor. Describing the subject site as a prime example for an infill development.
6As an infill project that is located in an established built urban area, Mr. Sherman informed the Tribunal that the proposed development meets the objectives of the Provincial Policy Statements ("PPS") and the Growth Plan for the Greater Golden Horseshoe 2020 ("GP 2020"). In particular, the proposed development would contribute to a range of housing options, represents good land use and urban planning.
7Mr. Sherman gave evidence that the proposed development conforms with the intent of both the York Region Official Plan ("York OP"), in particular s. 3.5.4 and, in his opinion, the Town Official Plan ("Town OP").
8In the opinion of Mr. Sherman, the Subject Site is not located in what would be considered a stable or established neighbourhood. Over the years, several infill developments have occurred throughout the neighbourhood. From a pedestrian perspective, there has been no consistency in design of character of the neighbourhood.
9The Tribunal was informed that the purpose of the revisions was to help address the concerns of the Town with regards to the GFA and space between the stormwater sewer pipeline.
10Mr. Markovic appeared before the Tribunal to give his opinion of the design of the proposed build. He described to the Tribunal what the layout of the revised proposal would look like.
11It was his opinion that the reduction of the proposed GFA from 484.3 square metres to 461 square metres address the concerns raised by the Town. Mr. Markovic explained that this was able to occur through the reduction in the garage size from a 52.6 square metre, three vehicle garage to a 36.38 square metre two vehicle garage.
12In addition, the Tribunal was informed that the revised proposal created a new room that did not exist in the original application. The new 14.9-square metre mechanical room would be created to replace a portion of the third garage space.
13Mr. Eghtesadi gave his expert engineering opinion that the Applicant has taken further step to address the Towns concerns in the revised proposal regarding the setbacks from the stormwater sewer pipeline.
14The revised proposal increased the setback to 1.8 metres from the stormwater sewer pipeline to the basement wall. The originally proposed setback was 1.2 metres. Mr. Eghtesadi stated that, in his opinion, the 1.8-metre setback provided an adequate easement for the Town to properly maintain the stormwater sewer pipeline. He further explained to the Tribunal that he did not feel that the construction of the proposed development or the building footings would damage or increase unnecessary pressure to the stormwater sewer pipeline.
POSITION OF THE TOWN
15It was the opinion of Ms. Henriques that the proposed development does not meet the four tests of a minor variance.
16Ms. Henriques informed the Tribunal that she accepts and agrees with Mr. Sherman that the application is consistent with the PPS and conforms to the relevant directives established by the GP 2020, and conforms to the intent of s. 3.5.4 of the York OP.
17However, Ms. Henriques gave evidence that the proposed development in her opinion is not considered to be compatible to the established character or form of the existing area and does not meet the intent of the Town OP. She described the immediate neighbourhood to have a modest built form.
18Ms. Henriques testified that the average built for size in the neighbourhood was a GFA of 205 square metres. While accepting that the Applicant did revise their application to a built form GFA of 461 square metres from the original request of 484.3 square metres, it was the opinion of Ms. Henriques that the proposed GFA was considerably larger than the average existing home in the neighbourhood.
19The Town also brought to the Tribunal’s attention that they did not feel the revised proposal adequately addressed their concerns with regards to the GFA. The Tribunal was informed that the by-law would not consider the size of a mechanical room as part of the equation in determining the GFA. It was the position of the Town that the revised GFA reduction was limited as a large portion could be found in the newly added 14.9-square metre mechanical room.
20From an engineering perspective, Mr. McArthur testified that the stormwater sewer pipeline collects ground water from the 113 properties and roads in the immediate neighbourhood. The system is designed that the subdivision flows towards the Subject Site. The stormwater sewer pipe drains in the wetlands adjacently behind the Subject Site. The stormwater sewer system was constructed in 1966.
21Mr. McArthur explained that the proposed development extends over the stormwater sewer pipeline. It was his opinion to the Applicant’s original or revised application satisfy the Town's Engineering Division that the proposed development would not damage or interfere with the Town’s ability to inspect, repair, or maintain the pipeline.
FINDINGS
22In accordance to the Act, the Tribunal must follow the four tests of a minor variance when considering this matter. The Tribunal finds that the application does not meet all four tests.
23The Tribunal has been persuaded by the evidence from the Town that the desired increase to the GFA of a 194.3 square metres is not considered minor in nature.
24While the Applicant has proposed a reduction of the overall GFA by reducing the size of the garage, it is compensating by adding a Mechanical Room that is not included in the GFA equation. The Tribunal is not satisfied that the revised proposal adequately addresses a reduction in the GFA.
25The Tribunal has also taken into consideration the concerns raised by the Town regarding the stormwater sewer pipeline that services the entire neighbourhood. The pipeline is clearly an important piece of the overall neighbourhoods infrastructure. The Tribunal agrees that the ability to maintain, repair, and replace this infrastructure is important. Even though the existing dwelling overlaps a portion of the stormwater sewer pipeline, the Tribunal has not been convinced that adding more potential pressure to the stormwater sewer pipeline is desirable for the greater neighbourhood infrastructure.
26The Tribunal is persuaded by the evidence of Mr. Sherman that the Subject Site is an acceptable property for an infill project with further modifications to the design and takes into consideration further setbacks to the stormwater sewer pipeline.
ORDER
27THE TRIBUNAL ORDERS that the appeal is dismissed, and the variances are not authorized.
“Steven Cooke”
STEVEN COOKE
VICE-CHAIR
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.