Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 24, 2022
CASE NO(S).: OLT-22-002426
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Jehan Chaudry
Subject: Minor Variance
Description: To vary the minimum number of off-street parking spaces required for a semi-detached residential dwelling to permit a new Accessary Dwelling-Unit.
Reference Number: MV-2022-003
Property Address: 706 Yarfield Crescent
Municipality/UT: Newmarket/York
OLT Case No: OLT-22-002426
OLT Case Name: Chaudry v. Newmarket (Town)
Heard: June 16, 2022 by video hearing
APPEARANCES:
Parties
Representative
Jehan Chaudry (Applicant/Appellant)
Self-represented
DECISION DELIVERED P. TOMILIN AND S. BRAUN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was a hearing of an appeal by Jehan Chaudry (“Applicant”/“Appellant”) from the decision of the Town of Newmarket (“Town”) Committee of Adjustment (“COA”) to deny an application for a Minor Variance (“MV”). The Appellant seeks relief from Zoning By-law Number 2010-40 (“ZBL”) to vary the minimum number of off-street parking spaces required for a semi-detached residential dwelling and a proposed Accessory Dwelling Unit (“ADU”).
2706 Yarfield Crescent (“subject property”) is located east of Bathurst Street and south of Davis Drive in a residential neighbourhood consisting of single and semi-detached homes. The Subject Property is zoned Residential Semi-Detached Dwelling 13.6 metres (R2-H), which permits semi-detatched dwellings and ADUs. Although planning staff for the Town provided a detailed report (“Staff Report”) to the COA recommending approval of the MV subject to a number of conditions, the application was refused.
3Paul Voorn, Senior Solicitor for the Town, attended the hearing. He requested that the Tribunal consider imposing the conditions as recommended in the Staff Report in the event of a decision to approve the MV. Beyond the foregoing request, he indicated that the Town would not be taking a position on the appeal and he would remain in attendance for the purpose of observing the proceedings.
THE DEVELOPMENT PROPOSAL
4The Applicant wishes to create an ADU within the existing semi-detached dwelling at the subject property. Section 5.3.1 of the ZBL sets out the minimum number of off-street parking spaces required for residential uses and stipulates that a semi-detached dwelling and an ADU must have two exterior off-street parking spaces each, for a total of four.
5The aforementioned requirement however, is superseded by Ontario Regulation 299/19 (“Regulation”), which provides that municipalities can only require one parking space for an ADU. Accordingly, a total of three exterior off-street parking spaces would be required for the semi-detached dwelling and the proposed ADU. The driveway of the subject property is not long enough to accommodate three exterior parking spaces and, as such, the Appellant applied for an MV seeking relief from the minimum required number of off-street parking spaces.
LEGISLATIVE FRAMEWORK
6An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance:
a) maintains the general intent and purpose of the Official Plan (“OP”);
b) maintains the general intent and purpose of the ZBL;
c) is minor in nature; and
d) is desirable for the appropriate development or use of the land building or structure
7In addition, a decision of the Tribunal affecting a planning matter must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to an applicable Growth Plan which in this instance is A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act and must have regard for the decision of the COA and the information considered by it in the course of making that decision.
PRELIMINARY MATTER
8The application, as submitted, requested a reduction in the number of required parking spaces from three to two, as well as permission for one of the two proposed spaces to be located within the garage. However, at the outset of the hearing, the Appellant indicated that this was an error and clarified that she required a variance only for the purpose of permitting one of the three required off-street parking spaces to be located within her garage. She provided sworn testimony that, while not evident from the site plan submitted with the application, the driveway of the subject property is, in fact, large enough to accommodate two exterior off-street parking spaces.
9Interestingly, notwithstanding the erroneous information provided on the application form indicating the subject property could only accommodate two parking spaces (one in the driveway and one in the garage), Town planning staff’s evaluation of the proposal was consistent with the clarifying information provided by the Appellant at the hearing. The Staff Report specifically notes that the “proposal is to provide two parking spaces exterior to a garage and one parking space inside of a garage for a dwelling unit and accessory dwelling unit”. The Tribunal also notes, from the Minutes of the COA meeting included as part of the Municipal Record, that the relief considered by the COA was “to permit one parking space for an ‘Accessory Dwelling Unit’ be provided within the garage, whereas the By-law requires parking spaces be provided exterior to any garage”.
10Given the apparent discrepancy between the relief as requested on the original application, the information/evaluation in the Staff Report and the relief considered by the COA, the senior solicitor for the Town who attended to observe the hearing agreed to provide some assistance as a friend to the Tribunal. By way of screenshare, he referenced a “Google Maps” aerial photograph of the subject property not included in the materials before the Panel, which depicts a driveway which is, in fact, long enough to accommodate two parking spaces.
11Out of an abundance of caution, and for the sake of ensuring consistency in the evidentiary record, the Applicant’s clarification of the errors on the application was treated as a request to amend same. Pursuant to s. 45 (18.1) and (18.1.1) of the Act, the Tribunal has the discretion to allow amendments to a MV application without the requirement for further public notice if it is of the opinion that such amendments are minor by virtue of s. 45 (18.1) and (18.1.1) of the Act.
12In the view of the Tribunal, the present circumstances warrant the exercise of such discretion. The clarification/amendment results in a reduction of the relief as originally requested on the application and further, is representative of the actual site condition at the subject property. Moreover, the recommendation of Town Planning Staff and the decision ultimately rendered by the COA were both predicated on the understanding that there would be a total of three parking spaces, rather than upon the information as provided in the application. In light of all the foregoing, the Tribunal finds the amendment to be minor and further public notice is not required.
SUBMISSIONS OF THE APPLICANT/APPELLANT
13The Appellant disagreed with the COA’s reasons for refusing the application namely, that the requested variance does not meet the four tests. She relied wholly upon the Staff Report (Exhibit 1), which concludes otherwise, stating: “the proposed variance is deemed to meet the four tests under the Planning Act”. She referred the Tribunal to the portion of the Staff Report titled ‘Planning Considerations’, wherein it is noted that despite the provisions of the ZBL which require a total of four off-street exterior parking spaces, by virtue of the Regulation, only one extra exterior off-street parking spaces would be required to accommodate the proposed ADU for a total of three.
14The Appellant further drew the Tribunal’s attention to the opinion of Town Planning Staff, that the requested variance achieves conformity with the OP, which permits ADUs in semi-detached homes and encourages a range of residential accommodations and affordable housing types. In addition, she pointed out the following statement at page 3:
The impact of the proposed variance appears to be minimal as the potentially increased number of vehicles generated by the accessory unit can still be accommodated on site by the existing tow (sic) exterior spaces combined with one parking spaces (sic) reserved in the garage.
ANALYSIS AND FINDINGS
15Based on a thorough review of the available evidence, including the Staff Report and the testimony of the Appellant, as well as the Municipal Record including the decision of the COA and the information considered by it, the Tribunal finds the requested variance meets the four tests; is consistent with the PPS; conforms to the GP; and is representative of good planning in the public interest.
16The Staff Report indicates the general intent of the ZBL is to provide a sufficient number of parking spaces for those residing in the two dwelling units on the property and the proposed variance would allow for a sufficient number of parking spaces. Although matters of consistency with the PPS and conformity with the GP are not specifically addressed therein, the Tribunal finds the following statement instructive:
ADUs allow a modest increase in the density of dwelling units and allow homeowners a source of income for their property. While the standard parking requirement of three exterior spaces, in addition to any spaces provided in a garage, may provide enough parking, not all ADUs will generate such a parking demand. A minor variance is the appropriate tool for relief from zoning requirements that would prevent an otherwise desirable development, and a minor parking variance should not overshadow the desirability of an ADU as a development as encouraged by Town, Region, and Provincial policy (emphasis added).
17The requested variance is required to give effect to the Appellant’s proposal to permit an ADU. The proposed ADU supports PPS and GP policies as well as matters of Provincial interest, including but not limited to: the orderly development of safe and healthy communities; provision of an appropriate range and mix of housing options; the appropriate location of growth and development and the efficient use of land and resources.
18As the required number of off-street parking spaces can be accommodated by allowing one space to be located within the garage, the Tribunal is satisfied that the requested variance will not result in any additional parking on the street and will not result in unacceptable adverse impacts on the neighbouring properties.
CONDITIONS OF APPROVAL
19The Staff Report recommended approval of the requested variance, subject to the following conditions, which the Town requested the Tribunal consider imposing in the event the appeal is allowed:
a) That the variance pertains only to the request as submitted with the application;
b) That one space in the garage be reserved for the purpose of required parking and for no other use;
c) That the development be substantially in accordance with the information and site plan submitted with the application; and
d) That failure to comply with and maintain the conditions of the Committee shall render the approval null and void.
20The Tribunal has concerns in relation to conditions b) and d). While these conditions may, in general, be intended to ensure that the proposed ADU does not result in additional on-street parking, such conditions address matters of enforcement not properly within the jurisdiction of the Tribunal and as such, the Tribunal finds conditions b) and d) are not appropriate.
ORDER
21The Tribunal, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.
22THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 2010-40 is authorized subject to the following conditions:
a) That the variance pertains only to the request as submitted with the application; and
b) That the development be substantially in accordance with the information and site plan submitted with the application.
“P. Tomilin”
P. TOMILIN
MEMBER
“S. Braun”
S. BRAUN
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.