Asgary v. Pickering (City), 2022 CanLII 90996

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 28, 2022

CASE NO(S).: OLT-22-003750

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

Applicant/Appellant: Mir Asgary

Subject: Minor Variance

Reference Number: P/CA 43/22

Property Address: 681 Front Road

Municipality/UT: Pickering/Durham

OLT Case No: OLT-22-003750

OLT Lead Case No: OLT-22-003750

OLT Case Name: Asgary v. Pickering (City)

Heard: September 6, 2022 by video hearing

APPEARANCES:

Parties	Counsel
M.A. Asgary (“Applicant/Appellant”)	Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON SEPTEMBER 6, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on September 6, 2022, to consider the appeal by M.A. Asgary (“Appellant/Applicant”) from the refusal of the City of Pickering’s (“City”) Committee of Adjustment (“COA”) to grant a minor variance requested to Zoning By-law No. 2511 (“ZBL”) pursuant to s. 45(12) of the Planning Act (“Act”). The Appellant/Applicant applied to the City for minor variances pertaining to a property known municipally as 681 Front Road, in Pickering, Ontario (“Subject Property”).

2The Tribunal did not receive any requests for status, either Party or Participant. Representatives from the City did not participate in the hearing. The hearing proceeded with the Appellant/Applicant only.

3The Appellant/Applicant was self-represented, and the Tribunal provided the usual guidance on Tribunal procedures to him as a lay person.

Requested Variance

4The Appellant/Applicant is seeking variances to ZBL 2511, as amended, to permit:

a. A minimum front yard depth of 7.1 metres (“m”) for the second floor front wall, whereas the ZBL requires a minimum front yard depth of 7.5 m;

b. Covered steps and a platform not exceeding 1.6 m in height above grade and not projecting more than 0.5 m into the required front yard, whereas the ZBL requires uncovered steps or platforms not exceeding 1.0 m in height above grade and not projecting more than 1.5 m into any required front yard;

c. A minimum rear yard depth of 6.2 m for a rear uncovered porch with steps, whereas the ZBL requires a minimum rear yard depth of 7.5 m;

d. Uncovered steps not exceeding 1.0 m in height above grade and not projecting more than 1.0 m into the side yard, whereas the ZBL requires Uncovered steps or platforms not exceeding 1.0 m in height above grade and not projecting more than 0.6 m into any required side yard;

e. A maximum front entrance elevation of 1.6 m above the average grade, whereas the ZBL requires a maximum elevation of the front entrance of 1.2 m above the average grade;

f. A parking space within a private garage with a minimum width of 3.0 m and a minimum depth of 5.5 m, whereas the ZBL requires each parking space within a private garage shall have a minimum width of 3.0 m and a minimum depth of 6.0 m; and

g. A minimum front yard setback of 7.1 m based on the shortest front yard setback of adjacent dwellings, whereas the ZBL requires the minimum front yard setback shall be equal to the shortest existing front yard setback of the dwellings on the immediately abutting lots located along the same side of the street and within the same block.

5The Appellant/Applicant requests approval of these minor variances in order to recognize existing conditions of a newly constructed detached dwelling.

Site and Context

6The Subject Property is designated Urban Residential Areas – Low Density within the Bay Ridges Neighbourhood under the City’s Official Plan (“City’s OP”). It is zoned One-Family Detached Dwelling – Residential Fourth Density (R4) under ZBL 2511. A detached dwelling is permitted within the lands zoned “R4”.

7The Subject Property has an area size of 673.96 square metres (“m²”), with a lot frontage of 55 feet on Front Road, and lot depth of 165 feet. Currently, it contains a newly constructed two-storey single family detached dwelling. It is located close to infrastructures like the Pickering Go Station and Highway 401. It is serviced by the Durham Region Municipal Water System.

8The adjacent uses are low-density residential dwellings, consisting of almost exclusively single detached homes of various shapes and sizes. The Appellant/Applicant indicated that a lot of development is taking place within the neighbourhood, as older houses are being converted to newer built dwellings. Some of the older homes, such as one of the ones directly abutting the Subject Property, is abandoned as the owner is pursuing demolishing the current dwelling on it and further developing the land.

THE APPLICATION’S BACKGROUND

9In its Planning Report to the COA, the City’s planning staff recommended approval of the proposed variances.

10On April 13, 2022, the City’s COA denied one of the variances. Namely, the COA found “That a minimum rear yard depth of 6.2 metres (“m”) for a rear uncovered porch with steps for application P/CA 43/22 by M.A. Asgary, be Refused on the grounds that the requested variance is not minor in nature, not desirable for the appropriate development of the land.” The City’s COA approved all other requested variances.

11On April 25, 2022, the Appellant/Applicant appealed the COA’s decision to the Tribunal.

LEGISLATIVE TESTS

12The Tribunal’s authority to grant 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 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.

13The proposed variances must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act. It must also have regard to the decision of the COA and the information considered by it, as required under s. 2.1(1) of the Planning Act, though it is not bound by that decision.

14Under s. 45(18) of the Act, this hearing is de novo, meaning that the entire application must be considered anew, and the Tribunal is not merely reviewing those aspects of the COA’s decision that the Applicant objects to. The onus of satisfying the Tribunal that the application meets these tests remains on the Applicant.

THE HEARING

15As evidence in the Hearing, the Tribunal received the following Exhibits which were identified sequentially during the hearing:

• Exhibit 1: The Subject Property’s Site Plan Including the Rear Lot Yard Line

• Exhibit 2: Photograph of the Rear Yard

• Exhibit 3: The Planning Report by Kerry Yelk, City Planner I

16The Appellant/Applicant took the Tribunal through his evidence, including referring to the municipal record related to the Subject Property and to the City’s Planning Report (“Planning Report”) entered in as Exhibit 3. The Tribunal takes cognizance of the plans, drawings, documents and municipal records in the appeal.

17The variances are allowed for the reasons detailed below.

18The proposed variances have regard for matters of provincial interest, and specifically for intensification in areas that are accessed by public transit. As such, they are consistent with various provincial policies and directives. Moreover, provincial policies support intensification and growth in urban areas such as this one.

19In his uncontested report, Mr. Yelk reviewed all the variances requested, and indicated that the variances sought by the Appellant/Applicant met the four tests outlined under s. 45 of the Act, as follows:

a. They conform to the intent of the City’s OP. The Appellant/Applicant has made minor changes to the existing detached dwelling, which is a permitted use within the Subject Property’s Urban Residential Area – Low Density designation and a built form within the Bay Ridges Neighbourhood. Mr. Yelk indicated that City staff reviewed and commented on the proposal using the Council-adopted Revised Urban Design Guidelines for Infill and Replacement Housing in Established Neighbourhood Precincts Checklist. He maintained that the minor variances conformed to the intent of the City’s OP.

a. The variances requested maintain the general intent and purpose of the City’s ZBL. A detached dwelling, such as the residential dwelling recently constructed on the Subject Property, is permitted within the lands zoned “R4,” which is where the Subject Property is located. Specifically, with respect to the variances sought by the Appellant/Applicant, Mr. Yelk stated as follows:

a. Front Yard Variance: The intent of the minimum front yard requirement of 7.5 metres is to maintain a consistent setback with abutting properties to mitigate views and privacy concerns, and to provide sufficient landscaped area and space for parking in the front yard. The existing second-storey wall has a setback of 7.1 m from the front property line, while the main floor wall of the dwelling has a setback of approximately 10.0 m, well within the requirements of the ZBL.

b. Rear Yard Variance: The backyard deck connects to the rear ground-floor entrance of the dwelling with a rear yard depth of 6.2 m, whereas the ZBL requires a minimum rear yard depth of 7.5 m. The intent of this provision is to ensure that sufficient amenity space is provided in the rear yard. The requested variance is to recognize the existing deck that contributes towards the total usable amenity space in the rear yard and provides access to the backyard from the dwelling. There is also sufficient amenity space to the south and east of the proposed deck, where the property line extends to 14.19 m.

c. Elevation of Front Entrance Variance: The intent of the maximum elevation of the front entrance of 1.2 m is to ensure the front entrance is located at a height that is compatible with the height of front entrances of neighbouring dwellings. The requested variance is to permit a front entrance with approximately 8 steps with a maximum elevation of 1.6 m above grade. The proposed front porch has 8 steps, which is compatible with the height of front entrances of properties further south down the street, which have a range of 5-12 steps to access the front entrance.

d. Projection of Uncovered Platform into Side and Front Yard Variances: The intent of the provision that requires uncovered platforms not exceeding 1.0 m in height above grade to project not more than 0.6 m into the required side yard is to protect the privacy of abutting properties. Due to the slight increase in elevation, the owner has constructed a 5-step entrance/exit from the front to rear yard. The existing steps will not have an impact on the views into the abutting properties to the north.

Additionally, the intent of the provision that requires uncovered platforms not exceeding 1.6 m in height above grade to project not more than 0.5 m into the required front yard is to ensure an adequate buffer space between buildings and to ensure that an adequate landscaped area within the front yard is provided. The 0.5 m projection into the required front yard leaves approximately 5.0 m of landscaped area between the edge of the platform with associated steps and the front property line.

e. Interior Garage Parking Space: The intent of a minimum parking space requirement of 3.0 x 6.0 m is to ensure there is sufficient space to park a vehicle and enter/exit a vehicle within the parking space. Operationally, two parking spaces measured at 3.0 x 5.5 m will be provided within the interior garage. City staff are of the opinion that the reduced parking space within the interior parking garage will provide sufficient space to park a vehicle and enter/exit a vehicle. City staff are of the opinion that a vehicle can be accommodated within the proposed parking space with minimal complications with entering/exiting the garage.

a. The variances are appropriate and desirable for the development of the lot and are minor in nature. The existing detached dwelling was completed in 2018, and has had minimal impact on the surrounding neighbourhood, the property, or the street. In fact, it is compatible with the neighbourhood, and no adverse impacts have been identified. The Subject Property is in an area serviced by adequate municipal services from the City. The minor variances requested have no impact on those services. City staff are of the opinion that the existing dwelling has proven to be an appropriate development of the land and to be minor in nature.

20In his report, Mr. Yelk further stated that the Building Services department had no concerns regarding the requested minor variances, and the Engineering Services department had no comments. Lastly, no written submissions had been received from the public regarding the minor variances requested.

21In short, Mr. Yelk recommended approval of all the minor variances requested by the Appellant/Applicant as they were minor and met the four tests outlined in the Act.

22Regarding the minor variance which had been refused by the COA, namely a minimum rear yard depth of 6.2 m for a rear uncovered porch with steps whereas the ZBL required 7.5 m, the Appellant/Applicant explained that:

a. The ZBL measured the depth of the rear yard from the farthest point of the building structure (the end point of the back yard porch) to the closest point in the end of the property lot line. In this case, the rear of the property has an irregular shape, as shown in Exhibit 1, wherein most of the property line is 14.19 m from the back yard porch. However, on the west side of the back yard, the property line comes in and is 6.62 m from the very end of the porch. In other words, the majority of the back yard porch is located 14.19 m from the rear yard lot line. According to the Site Plan at Exhibit 1, only the west-side corner of the porch falls 6.62 m from the rear lot line due to the irregular lot shape.

b. The community and immediate adjacent neighbors have no objection to the minor variances that have been requested, including the one minor variance which was denied by the COA.

23Of note, in his Planning Report to the COA, Mr. Yelk recommended approval of the proposed variances subject to the following condition:

a. That these variances apply only to the existing two storey detached dwelling with an attached garage including the existing uncovered platform and associated steps (front porch), existing uncovered platform (rear porch) and associated steps, and uncovered steps in the north side yard, as generally sited and outlined on the applicant’s submitted as-built survey.

24The Appellant/Applicant indicated that he agreed with this condition and that it had already been complied with.

FINDINGS

25The Tribunal is satisfied by the uncontented findings of Mr. Yelk, namely that the four tests outlined in s. 45 of the Act have been satisfied. The Tribunal is also satisfied, with respect to the minor variance refused by the COA in particular, that the characteristic of the irregular back yard of the Subject Property means that the majority of the back yard porch is located well within the minimum setback requirement of 7.5 m, as there is 14.19 m of space between the majority of the back yard porch and the rear yard lot line.

26Mr. Yelk’s report, as well as the totally of evidence before the Tribunal, supports the granting of all of the minor variance requested by the Appellant/Applicant.

ORDER

27THE TRIBUNAL ORDERS that the appeal of the minor variances is allowed and the minor variances to the City’s Zoning By-law No. 2511, as amended, are authorized, subject to the following condition:

a. That these variances apply only to the existing two storey detached dwelling with an attached garage including the existing uncovered platform and associated steps (front porch), existing uncovered platform (rear porch) and associated steps, and uncovered steps in the north side yard, as generally sited and outlined on the applicant’s submitted as-built survey.

“Bita M. Rajaee”

bITA M. rajaee

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.