Ewa Nieborowska and Ryszard Nieborowski v. Jayne Frutti, 2022 CanLII 69433

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 26, 2022

CASE NO(S).:

OLT-21-001687

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

Applicant:

Jayne Frutti

Appellant:

Ewa Nieborowska and Ryszard Nieborowski

Subject:

Minor Variance

Property Address/Description:

2035 Stonehouse Crescent

Variance from By-law:

0227-2007 and 0225-2007

Municipality:

City of Mississauga

Municipal File No.:

A101/20

OLT Case No.:

OLT-21-001687

OLT Lead Case No.:

OLT-21-001687

OLT Case Name:

Nieborowska v. Mississauga (City)

Heard:

April 13 and June 13, 2022, by video hearing

APPEARANCES:

Parties

Counsel

Ewa Nieborowska and

Meredith Baker

Ryszard Nieborowski (“Appellants”)

Jayne Frutti (“Applicant”)

Marc Kemerer

DECISION DELIVERED BY S. deBOER AND D. CHIPMAN AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an appeal filed by the Appellants of the City of Mississauga’s (the “City”) Committee of Adjustment (the “COA”) decision to approve the minor variance requests to permit relief from the City’s Zoning By-law Nos. 0227-2007 and 0225-2007 as amended (“ZBL”).

2The subject property is municipally known as 2035 Stonehouse Crescent, Mississauga (the “Subject Property”).

3In order to give effect to the proposal, the Applicant applied to the COA for minor variances to grant relief from the following provisions in the ZBL.

4The minor variances requested were the following:

1. An interior side yard setback of 1.91 metres (“m”) whereas By-law No. 0227-2007 as amended, requires a minimum interior side yard of 4.2 m;

2. A lot coverage of 26.3% of the lot area whereas By-law No. 0225-2007, as amended, permits a maximum lot coverage of 25% of the lot area;

3. A floor area of an attached garage of 178.37 square metres (“sq. m.”) whereas By-law No. 0225-2007, as amended, permits a maximum floor area of and attached garage of 75 sq. m.;

4. A gross floor area of an accessory structure of 44 sq. m. whereas By-law No. 0227-2007 as amended, permits a maximum gross floor area of an accessory structure of 20 sq. m.

5The COA approved the Application on October 14, 2021, at which time the Appellant filed an appeal. As per section 1 of the A1 Appellant Form, the appeal is restricted to Variance #1, the reduced interior side yard setback.

6The Subject Property is located in the Sheridan Neighbourhood, west of Mississauga Road and north of Sheridan Way. The immediate area of Mississauga Crescent consists of mostly older one-storey and newer two-storey detached dwellings on lots with mature vegetation in the front, side and rear yards. The Subject Property contains an existing one-storey dwelling that is zoned Residential Low Density – R1.

LEGISLATIVE FRAMEWORK

7An appeal pursuant to s. 45 of the Planning Act (the “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.

8In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, in this case the application for variance, must be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the Committee of Adjustment and the information considered by it in the course of making that decision.

ISSUES AND EVIDENCE

9The Tribunal heard from three witnesses. On behalf of the Appellant, Daniel Borrelli, a Planner from GSP Group Inc. who was qualified to give opinion evidence in land use planning. Dragan Kljenak was presented to give opinion evidence in architecture. Counsel for the Applicant challenged the qualifications of Mr. Kljenak.

10The Tribunal questioned Mr. Kljenak’s credentials, and the witness confirmed that he currently holds a designer licence and is not a practicing Architect. He is retired and has never received his full architectural licence in Canada. Upon hearing Mr. Kemerer’s concerns, the Tribunal agreed that Mr. Kljenak does not provide sufficient credentials to be considered to provide opinion evidence in Architecture. The Tribunal notes that Mr. Kljenak provided contextual evidence.

11Jesse Auspitz, a Senior Planner from NPG Planning Solutions Inc. was qualified to give opinion evidence in land use planning on behalf of the Applicant.

12The Appellants submitted, with reference to photographs of their property and some nearby properties, that the proposed structure does not match similar structures located elsewhere in the area. As such, they argued the structure will be incompatible with the character of the surrounding neighbourhood, being unprecedented in size and relative distance to neighbouring properties.

13The Appellants further argued the requested side yard setback variance is neither minor nor desirable as the proposed structure would have substantial impacts upon their property. In their view, there would be potential for significant overlook from the second storey and the rear yard porch. Furthermore, the rear yard porch would be extremely close to their property.

CITY OF MISSISSAUGA OFFICIAL PLAN

14Mr. Borrelli stated that the Subject Property has been designated as in a “Neighbourhood” of the City within the “Sheridan” area and is designated as Residential Low Density 1.

15In his testimony, Mr. Borrelli stated that the policies of the City’s OP for the Residential Low Density 1 are not appropriate for significant intensification. However, both Messrs. Borrelli and Auspitz agree that existing neighbourhoods are not static in nature and redevelopment does occur.

16Mr. Borrelli stated that the side yard setback is to allow for access to the rear yard, allow for drainage and separation from separate dwellings. The combination of the reduced side yard setback and the elevated rear yard porch does not meet the general intent and purpose of the OP to minimize the impacts of redevelopment in the neighbourhood, as the proximity of the rear yard porch to the property line will allow overlook and result in reducing privacy.

17Mr. Auspitz opined that this redevelopment is not intensification. This application is to build a bigger two-storey dwelling, which has been done on other properties in the neighbourhood. This application will enhance the current property’s use and the side yard setback is needed to center the dwelling on the property. The side yard variance is needed for just one side of the property, since the 1.91 m request is more that the 1.8 m required on one side of the property. He opined that the proposed dwelling provides for appropriate transition to the existing and planned development and meets the general intent and purpose of the OP.

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

18The Zoning By-law is the instrument that is used to implement the policies of the OP. The purpose of the R-1 zoning is to create a consistent built form consisting of low-density residential development.

19Mr. Borrelli stated that the majority of the dwellings are one-storey, however admittedly, he acknowledged that some two-storey dwellings are integrated seamlessly within the character of the area. He opined that the requested side yard setback does not maintain the general intent and purpose of the ZBL because the requested reduction is not in keeping with the character of the area.

20He stated that the requested variance results in a significant deviation from the current requirement of 4.2 m and has privacy implications due to the proximity and height of the porch, which creates overlook into the Appellant’s yard.

21He disagreed with Mr. Auspitz s assessment of the applicability of the provisions of s. 4.1.5.2 and s. 4.1.5.3 of the City's ZBL. Section 4.1.5.2 states:

Notwithstanding the provisions of Article 4.1.5.1, a porch or deck that is located at and accessible from the first storey or below the first storey of the dwelling, inclusive of stairs, and is located in the rear yard shall have a minimum setback of:

(3) 0.61 m from an interior side lot line for a lot with a dwelling requiring more than a 0.0 m interior side yard; …

22He stressed this provision states that the porch must extend from the first storey or below the first storey.

23Mr. Borrelli stated that according to the definitions section of the ZBL, “First Storey” means the storey of a building, structure or part thereof, that has its floor closest to the established grade and it’s ceiling more than 1.8 m above the established grade.

24He took the Tribunal to the definitions of established grade and basement in the ZBL. It was his opinion, the “finished first storey” shown on the architectural drawings submitted with the Applicant's minor variance application is the second storey based on the definitions. He stated the architectural drawings also illustrates the floor height of the garage is 1,524 m (6 feet) lower than the finished basement, that the indicated basement on the plans is the first storey because the underside of the floor structure immediately above the established grade is over 1.8 m.

25Therefore, it was his opinion that the porch extends from the dwelling's second storey, and the encroachment provisions in s. 4.1.5.2 and s. 4.1.5.3 are inapplicable. As such, the requested variance is to permit relief for both the dwelling and the covered porch.

26Mr. Auspitz stated that Mr. Borelli’s interpretation of s. 4.1.5 of the ZBL which includes provisions pertaining to encroachments and projections is inaccurate, the proposed porches are located in the rear yard, and are therefore, permitted a 0.61 m interior side yard setback. Based on the above, Variance #1 is proposing an interior side yard setback of 1.91 m, which is only required for the dwelling and attached garage. Variance #1 is not required for the covered porch.

27In Mr. Auspitz noted that the staff report was in favour of the requested side yard setback:

The general intent of this portion of the by-law is to ensure that an adequate buffer exists between the massing of primary structures on adjoining properties, and that access to the rear yard ultimately remains unencumbered. Staff have no concerns with this variance, as the side yards proposed provided an adequate buffer between the massing of the proposed dwelling and adjacent properties. Furthermore, the proposed setbacks will ensure access to the rear yard is maintained.

28Mr. Auspitz agreed with the staff’s rationale that the City’s ZBL requires side yard setbacks of 1.8 m on one side of the lot and 4.2 m on the other side. The application provides for a setback of 2.01 m on the east side, and 1.91 m on the west side. He indicated that there had been recent approvals for reductions in interior side yard setbacks for single-detached dwellings, bringing the Tribunal to a number of examples.

29The proposed dwelling also is stepped back further on the second storey to further mitigate any impacts on adjacent properties with respect to massing. He reiterated that the Applicant has reduced the height of the rear yard porch to aid in the reduction of potential overlook.

30For these reasons, Mr. Auspitz opined that the general intent and purpose of the ZBL has been maintained.

DESIREABLE FOR THE APPROPRIATE DEVELOPMENT OR USE OF THE LAND, BUILDING OR STRUCTURE

31Mr. Borrelli opined that even though regeneration is happening in the neighbourhood, the requested variance would permit a dwelling that is “out of character” for the area. The neighbourhood was developed with expansive setbacks, and this is not desirable from a planning perspective as it introduces a build form not seen in the area. His opinion was that if the setback was 3 m instead of the requested 1.91 m, this would complement the neighbourhood in terms of continuity with already established properties. Three metres would be an adequate distance to provide plantings to screen the Appellants’ property from view. Furthermore, a 3 m setback with plantings mirrors the COA decision for 2075 Stonehouse Crescent.

32Mr. Auspitz opined that the overall dwelling is well designed with architectural features and a mix of materials that breaks of the massing of the building. This provides a visual interest along the street. The side yard setback allows for the centering of the dwelling on the property and allows for articulation along the second storey to reduce potential overshadowing to abutting properties. For these reasons, the variance is desirable for the appropriate use of the land.

MINOR IN NATURE

33Mr. Borelli opined that the side yard request is not minor in nature, as it will affect the Appellants’ sense of place and the overlook will hamper their enjoyment of their property. The current configuration of lots allow for sufficient privacy and the setback is not in keeping with the character of the area. This is a contextually large request and is therefore, not minor in nature.

34Mr. Auspitz opined that the reduces side yard request will not produce an adverse impact. The side yard setback is articulated on the second storey with increased setbacks to ensure visibility and the visual perception of massing is reduced. Further, he pointed out there are no windows on the western side of the building and having the garage as the closest point of contact near the western property line reduces the direct line of site from the proposed building.

35Mr. Auspitz stated that the rear porch height was reduced to accommodate the neighbour’s concern and is now 0.61m in height mitigating any overlook. In his opinion, the variance requested is minor in nature.

FINDINGS

36The Tribunal found that both planning witnesses agreed that the Application is consistent with the PPS, conforms with the Growth Plan for the Greater Golden Horseshoe and meets the purpose and intent of the Region of Peel OP.

37The Tribunal finds that the proposed variance meet the four tests in s. 45(1) of the Act.

38The Tribunal prefers the evidence of Mr. Auspitz who has demonstrated the changing nature of the neighbourhood, and how the Applicant has considered the issues of privacy and overlook in the design of the new dwelling.

39The Applicant has demonstrated through the evidence and building plans that the issue of privacy has been mitigated by reducing the height of the rear porch and the designing of the home having no windows on the side of the structure common with the Appellant.

40Upon an examination of the evidence as a whole, including the plans, specifications and the visual evidence, the Tribunal considers that the dwelling will be complementary to the surrounding neighbourhood context. The Tribunal finds that the variance will result in a dwelling with a height, massing and scale that reflects the changing character of the existing neighbourhood.

41In an urban environment, there is an expectation that a certain amount of overlook will occur, but the key determinant is whether it results in an undue adverse impact. The Tribunal finds that there is no undue adverse impact.

42The Tribunal finds that the Applicant has demonstrated that the Application meets the general intent and purpose of the City’s OP, as well as the general intent of the City’s ZBL. The Tribunal finds that the Application is minor in nature and is desirable and appropriate development for the area.

ORDER

43The Tribunal orders that the Appeal is dismissed and the variances to By-law Nos. 0227-2007 and 0225-2007, as amended, are authorized with the following condition:

• Construction related to the approved variance shall be in general conformance with the plans approved by the City of Mississauga Committee of Adjustment.

“S. deBoer”

S. deboer

MEMBER

“D. Chipman”

D. chipman

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.