Sagi Yaakov, Robin S. Yaakov and Stephen State v. City of London, 2022 CanLII 67027

Issue Date: July 19, 2022 Case No(s).: OLT-22-002376 (Formerly PL200341)

Proceeding Commenced Under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Sagi Yaakov, Robin S. Yaakov and Stephen State Subject: Minor Variance Description: To request various setbacks for the retained and severed lot Reference Number: A-038/20 Property Address: 401 Mornington Avenue Municipality/UT: London/Middlesex OLT Case No: OLT-22-002376 Legacy Case No: PL200341 OLT Lead Case No: OLT-22-002376 Legacy Lead Case No: PL200341 OLT Case Name: State v. London (City)

Proceeding Commenced Under section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Consent - refused by Approval Authority Description: to sever the existing oversized property for the purpose of constructing a single detached residential dwelling on the severed parcel Reference Number: B.017/21 Property Address: 401 Mornington Avenue Municipality/UT: London/Middlesex OLT Case No: OLT-22-002092 OLT Lead Case No: OLT-22-002376 Legacy Lead Case No: PL200341

Heard: June 20, 2022 by video hearing

Appearances:

Parties	Counsel
Sagi Yaakov, Robin S. Yaakov and Stephen State	Paula Lombardi

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

Introduction

1This decision is related to the Hearing of the appeal filed by Sagi Yaakov, Robin S. Yaakov and Stephen State (the “Applicants/Appellants”) pursuant to s. 53(19) and s. 45(12) of the Planning Act against the City of London’s (the “City”) Committee of Adjustment (the “COA”) decision to not approve the Minor Variance requested for relief from the City of London Zoning By-law Z-1, July 1, 1993, as amended and the Consent Application for the intensification of lot 10 on Registered Plan 466 in the City of London.

2The property address is municipally known as 401 Mornington Avenue, London (the “Subject Lands”).

3The Subject Lands consist of two lots, Lot 9 and Lot 10 of Registered Plan 466. The purpose of the consent application is to establish a 1.6 metre wide by 17.9 metre long easement to facilitate the encroachment of an existing building on Lot 9 Registered Plan 466 to the vacant Lot 10 Registered Plan 466. The purpose of this easement will allow the existing dwelling to remain and allow for a future development of a single detached swelling on the vacant lot.

4The Subject Lands are in the northeastern quadrant of London, east of Quebec Street and north of the CP rail line. The surrounding neighbourhood is characterized by low-rise residential uses, primarily single detached dwellings with several high-rise residential buildings further east along Mornington Avenue towards Highbury Avenue North. Individually, Lot 9 and Lot 10 have lot frontages of approximately 9.1 metres (29.9 feet) each. The Subject Lands contain a single detached dwelling predominately located on Lot 9 and an existing accessory structure (garage) located on Lot 10. Both were constructed in 1948. The Subject Lands have a combined lot frontage of approximately 18.2 metres (59.7 feet) and area of 641.0 square metres (0.16 acres).

5On February 25, 2021, the Committee of Adjustment – as the London Consent Authority – considered an identical proposal. Consistent with the staff recommendation, the Committee of Adjustment refused the Application for the following reasons:

a) The consent does not have regard to, among other matters, the health, safety, convivence, accessibility for persons with disabilities and the welfare of the present and future inhabitants of the municipality under Section 52 (24) of the Planning Act.

b) The consent is inconsistent with the 2020 Provincial Policy Statement.

c) The consent does not conform to The London Plan nor the 1989 Official Plan.

d) The consent will not facilitate appropriate intensification as the proposed lots are not adequately shaped and sized to accommodate their intended use.

e) The consent does not endeavor to avoid current and future land use conflicts and mitigate conflicts where they can be avoided.

6The Minor Variance Application was submitted and heard by the COA on July 8, 2021 to support a Consent Application to sever approximately 263.2 square metres (0.07 acre) from 401 Mornington Avenue to create a severed lot with a lot frontage of 7.5 metres (24.6 feet) for a future residential dwelling. The retained lot was contemplated to be 377.8 square metres (0.09 acres) with a lot frontage of 10.7 metres (35.1 feet). The proposed Minor Variance Application and proposed development required the following five variances:

7For the “severed lot,” the following variances were requested:

to permit a lot frontage of 7.5 metres (24.6 feet), whereas a minimum of 9.0 metres (29.5 feet) is required;
to permit an east interior side yard setback of 1.3 metres, whereas a minimum of 3.0 metres (9.8 feet) is required; and
to permit a parking area setback for 0.8 metres (2.6 feet) from the east and west interior side lot line, whereas a minimum of 3.0 meres from any one side lot line is required.

8For the “retained lot,” the following variances were requested:

to permit an east interior side yard setback of 1.2 metres (3.9 feet), whereas a minimum of 3.0 metres is required; and
to permit a parking area setback of 2.3 metres from the west interior side lot line, whereas a minimum of 3.0 metres (9.8 feet) is required.

9The COA approved variance No. 3 of the severed lot and approved variance No. 2 of the retained lot. All the other requested variances were not approved.

AMENDED APPLICATION BEFORE THE TRIBUNAL

10At the beginning on the Hearing, the Tribunal was made aware that the Application before it had been amended. With regard to the severed lot, the lot frontage will remain at the original 9.144 m as per Lot 10 of Registered Plan 466. This makes the first variance requested for the severed lot not required since it is over the 9 m minimum required. Also before the Tribunal was a requested minor variance change to variance No. 1 of the retained lot:

to permit an east interior side yard setback of 0.0 m, whereas a minimum of 3.0 m is required.

11The Tribunal considered these changes to be minor in nature and no further notice would be needed for the amended Application.

LEGISLATIVE FRAMEWORK BEFORE THE TRIBUNAL

12With respect to the appeal pursuant to s. 53(19) of the Planning Act, in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must:

a) be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the town and can proceed by way of application for consent;

b) if the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans; the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services;

c) As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement (the “PPS”) and conforms to any applicable provincial plans. The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the information and material that was before it when making that decision;

d) Pursuant to s. 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent;

e) Finally, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning in the public interest.

Legislative Framework for Minor Variance Appeals

13Pursuant to s. 45(1), the Tribunal must be satisfied that the requested minor variances:

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

b. maintain the general intent and purpose of the City’s ZBL;

c. are minor in nature; and

d. are desirable for the appropriate development or use of the land, building or structure

14Additionally, the Tribunal must be satisfied that the variances are consistent with the PPS; have regard to matters of provincial interest and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making that decision.

THE HEARING

15In support of the appeal, the Tribunal heard the testimony of William Pol, a registered Professional Planner, who was qualified by the Tribunal to provide opinion evidence in land use planning.

16As for the Consent Application Mr. Pol opined that the Application is in conformity with s. 53 and s. 51(24) of the Planning Act.

17He opined that the Applications conform to the 1989 Official Plan (the “Official Plan”) for the City of London as it allows for encroachment. This encroachment will not have any negative impact and will promote compatibility in accordance with Policy 2.3.1 (ii) of the Official Plan. Reliance of a building encroachment to facilitate residential intensification demonstrates the appropriate use of existing structures and acknowledges the existing registered lots and the size of lots. The lot size and setbacks are adequate for the size of the lot without the need for front yard driveway access or parking in accordance with Policy 3.2.3.5 (ii) (iv) of the Official Plan.

18He also opined that the Applications with regard to also conform with Policies 953_3, 1578_6 and 62_8 of the London Plan.

19As for the criteria under s. 51(24) of the Planning Act, the proposed easement has regard for all matters listed in this section of the Act. The easement requested will allow for the development of an existing vacant lot as per Registered Plan 466. All the planning matters related to s. 51(24) have been appropriately considered and will be implemented through the consent conditions that have been agreed upon by the Applicant and the City.

20Mr. Pol was of the opinion that the consent Application fulfills s. 51(24) of the Planning Act and represented good land use planning.

The Minor Variance Application

21 Subsection 3(5) of the Planning Act requires that a decision that affects a planning matter shall be consistent with the PPS. Mr. Pol opined that the Application being considered is consistent with policy 1.1.3.4 of the PPS as the Application is appropriate for intensification and redevelopment within built-up areas. As such, the proposal is consistent with the PPS.

General Intent and Purpose of the Official Plan

22The Subject Lands are located within the Neighbourhoods Place Type with frontage on a Neighbourhood Connector in the London Plan. Under the Official Plan the lands are located under the Low Density Residential on Schedule “A” Land Use. Both the London Plan Place Type and the Official Plan Land Use designation (together the “Plans”) allow single detached dwellings on separate lots. The variances allow single detached dwellings consistent with the Plans and enjoy rear yard access from a public lane for vehicular access. In his opinion, the variances maintain the intent and purpose of the Plans.

General Intent and Purpose of the Zoning By-law

23The Subject Lands are located in a Residential R1 (R1-1) Zone in the City of London Zoning By-law No. Z.-1. The R1-1 Zone variation primarily regulates existing inner-City smaller lot residential developments and exclusively permits single detached dwellings. The proposed uses are single detached dwellings, which is in keeping with the intent of the applicable R1-1 Zone. Clause 4.23.2(b) of Zoning By-law No. Z.-1 permits a minimum interior side yard setback of 1.2 m (4.3 ft) on both sides where there is an attached garage. Where there is no attached private garage, the Zoning By-law allows for one (1) side yard to remain 1.2 m (4.3 ft), while the opposite side yard shall be 3.0 m (9.8 ft). The intent is to provide adequate space for a tandem parking area in the interior side yard or driveway leading to a rear yard parking area. There is not a request seeking to create a driveway or parking area within an interior side yard. Mr. Pol opined that the variances are in keeping with the intent and purpose of the Zoning By-law.

24Variance No. 2 (Lot 9/retained lands) and Variance No. 3 (Lot 10/severed lands) pertain to the minimum parking area side yard setbacks. Under Variance No. 2 (Lot 9), the Applicant is requesting a 0.7 m (2.3 ft) reduction to the minimum parking area setback. The proposed parking area on Lot 9 is proposed to be setback 2.3 m (7.5 ft) from the west interior side lot line, whereas a minimum of 3.0 m (9.8 ft) from any one side lot line is required. Under Variance No. 3 (Lot 10), the Applicant is requesting to permit a parking area setback of 0.8 m (2.6 ft) from both the east and west interior side lot lines for the severed lands, whereas a minimum of 3.0 m (9.8 ft) from any one side lot line is required. Subsection 4.19(3)(c) of the Zoning By-law states that where access to a rear yard parking area is obtained by a lane not part of the rear yard parking area, the setback shall be located closer than 3.0 m (9.8 ft) from each side lot line. Both Lot 9 and Lot 10 are proposed to have rear yard parking areas accessed by a rear laneway.

25By locating the parking areas in the rear yards, the proposed developments are minimizing the visual impacts of parking on the public realm (The London Plan, 272). Both the requested 2.3 m (7.5 ft) setback and the 0.8 m (2.6 ft) setbacks provide opportunities to screen the parking area with landscaping, vegetation or fencing, thereby minimizing impacts on neighbouring properties at 399 Mornington Avenue on the west side and 405 Mornington Avenue on the east side. The City’s Development Services do not object to these variances to reduce the side yard setbacks for rear yard parking area as set out in Variance No. 2 (Lot 9) and Variance No. 3 (Lot 10). Therefore, Mr. Pol opined that the variances are in keeping with the intent and purpose of the Zoning By-law.

Minor In Nature

26Mr. Pol opined that the requested variances for reduced side yard building setbacks and reduced side yard setbacks for parking are minor in nature. The variances recognize the existing public lane access to the rear of the lots and facilitate efficient and safe parking from the lane. There is no change in the existing dwelling and the form of the proposed single detached dwelling will maintain permitted side yard setbacks.

Are the Variances Desirable for the Appropriate Use of the Land, Building or Structure

27In his opinion, Mr. Pol stated that the approval of the variances will allow the existing single detached dwelling to remain in the existing location. The variances will allow construction of a single detached dwelling on a separate lot in keeping with the character of the surrounding area. There will be no unacceptable adverse impacts on the surrounding properties. The intensity of development is consistent with similar infill dwellings in the neighbourhood. Therefore, the variances are desirable for the appropriate use of the land, building or structure.

28In conclusion, Mr. Pol opined that the proposed Applications are consistent with the PPS, conforms to the London Plan, conforms to the Official Plan, complies with the intent and purpose of the City of London By-law Z-1, fulfill the criteria of s. 51(24) of the Planning Act and represents good land use planning.

FINDINGS

29Based on the uncontroverted evidence of Mr. William Pol, the Tribunal is satisfied that the proposed consent and minor variance Applications meet all the legislative tests and in general, are representative of good land use planning.

30The Tribunal has given due regard to matters of provincial interest, including but limited to the orderly development of safe and healthy communities and the appropriate location of growth and development.

31The conditions to the decision as requested by the City and the Appellant are reasonable having regard to the proposed consent and the minor variances requested. These conditions will be imposed by the Tribunal.

ORDER

32The Tribunal Orders that the appeal pursuant to s. 53(19) of the Planning Act is allowed, and the provisional consent application B.017/21 is to be given to establish a 1.6 m wide by 17.9 m long easement to facilitate the existing building encroachment from Lot 9 to Lot 10 RP466 subject to the following conditions:

33That, pursuant to Section 53(41) of the Planning Act, if the applicant has not within a period of two years after notice was given of a decision to grant a Provisional Consent fulfilled all of the following conditions, the application shall be deemed to be refused.

34That a Consent Certificate fee shall be paid at the London Consent Authority’s office in the amount current at the time of the issuance of the Consent Certificate.

35For the purposes of satisfying any of the conditions of provisional approval herein contained, the Owner shall file with Development Services Staff, at a minimum of ten (10) working days in advance of final Consent approval, a complete submission consisting of all required clearances, fees, draft transfer(s), and final plans, and to advise in writing how each of the conditions of provisional approval has been, or will be, satisfied. The Owner acknowledges that, in the event that the final approval package does not include the complete information required by the Consent Authority, such submission will be returned to the Owner without detailed review by the City. The Owner shall submit 2 white prints of a reference plan of survey, showing the Subject Land which conforms with the application submitted and which shows the dimensions and areas of each part shown on the plan. Approval of the draft reference plan shall be obtained from Planning and Development Staff, and 2 prints of the resultant deposited reference plan shall be received.

36That prior to issuance of the Consent Certificate, the Owner shall pay in full all financial obligations/encumbrances owing to the City on the said lands, including property taxes and local improvement charges.

37The Owner shall have an Ontario Land Surveyor submit to the City for review and acceptance a copy of the draft reference plan identifying the severed and retained parcels along with all parts needed for the easement, all to the satisfaction of the City.

38Upon acceptance by the Chief Surveyor, this reference plan is to be registered on title of the Subject Lands.

39The Owner shall transfer to the City sufficient lands, free of encumbrances, to widen Mornington Avenue to a maximum width of 10.75 metres in perpendicular width from the centerline of Mornington Avenue along the entire frontage of the Subject Land, as determined by the City’s Chief Surveyor. The reference plan describing the widening to be transferred must be pre-approved by the City’s Chief Surveyor. The Owner shall register on title of the dominant and servient lands appropriate easement and maintenance use agreement for the maintenance access, all in accordance with the reference plan accepted by the City. A copy of the draft reference plan(s) and agreement(s) shall be provided to the City for review. At the time of consent, a letter of undertaking from the Owner’s solicitor shall accompany a signed copy of the agreement indicating that the agreement will be registered on title of the Subject Lands at the time of transfer.

40The Consent Certificate shall lapse after 6 months of issuance if the transaction has not been completed.

41The Tribunal Orders that the appeal pursuant to s. 45(12) of the Planning Act is allowed in part and the following variances to the City of London By-law Z-1 July 1, 1983, as amended, are authorized:

RETAINED LANDS – Lot 9 RP466, 401 Mornington Avenue:

To permit an east interior side yard setback of 0.0 m (0.0 ft) for the retained lands, whereas a minimum of 3.0 m (9.8 ft) is required.
To permit a parking area setback of 2.3 m (7.6 ft) from the west interior side lot line for the retained lands, whereas a minimum of 3.0 m (9.8 ft) from any one side lot line is required.

SEVERED LANDS – Lot 10 RP466, 403 Mornington Avenue:

To permit an east interior side yard setback of 1.3 m (4.3 ft) for the severed lands, whereas a minimum of 3.0 m (9.8 ft) is required.
To permit a parking area setback of 0.8 m (2.6 ft) from the east and west interior side lot line for the severed lands, whereas a minimum of 3.0 m (9.8 ft) from any one side lot line is required.

Conditions:

A building permit is required for the new single detached dwelling on Lot 10 RP 466, 403 Mornington Avenue.

“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.