Valastro v. London (City), 2023 CanLII 100151

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 24, 2023

CASE NO(S).: OLT-22-003612

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

Appellant: AnnaMaria Valastro

Applicant (Owner): Cole Jordan

Subject: Minor Variance

Description: Four variances in order to construct a duplex addition in the rear to form a fourplex.

Reference Number: A.172/21

Property Address: 137 John Street

Municipality/UT: London/Middlesex

OLT Case No: OLT-22-003612

OLT Lead Case No: OLT-22-003612

OLT Case Name: Valestro v. London (City)

Heard: December 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Cole Jordan ("Applicant")	Analee Baroudi
AnnaMaria Valastro ("Appellant")	Alex Ciccone and Colin Leger
City of London ("City")	Mike Corby

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON DECEMBER 12, 2022 AND ORDER OF THE TRIBUNAL

Link to Final Order

BACKGROUND

1Cole Jordan ("Applicant") applied to the City of London ("City") Committee of Adjustment ("CoA") for minor variances from Zoning By-law No Z.-1 ("ZBL") to permit the construction of an addition to an existing duplex dwelling to add two new units to create a fourplex dwelling at 137 John Street, London, Ontario ("subject property"). The Applicant sought four variances, of which, the CoA approved two, subject to conditions.

2AnnaMaria Valastro ("Appellant"), the Applicant's next-door neighbour, appealed the CoA decision to the Tribunal.

VARIANCES REQUESTED AND DECISION OF THE COA

3The minor variances requested are as follows ("Variances"):

1. To permit a west parking area setback of 0.3m (1.0 ft), whereas 3.0m (9.8 ft) is the minimum required ("Variance 1").
2. To permit an east and rear parking area setback of 0.5 m (1.6 ft), whereas 3.0 m (9.8ft) is the minimum required ("Variance 2").
3. To permit a west interior side yard setback of 1.4m (4.6 ft), whereas 3.0 m (9.8 ft) is the minimum required ("Variance 3").
4. To permit 0 accessible parking stalls whereas 1 accessible parking stall is the minimum required ("Variance 4").

4On February 10, 2022, the CoA granted Variances 1 and 2 relating to the reduction of the west, east and rear parking area setbacks. The CoA refused variances 3 and 4 relating to the west interior side yard setback reduction and accessible parking reduction. The Variances approved by the CoA were subject to the following conditions:

1. A building permit is required for the proposed addition.
2. A Heritage Impact Assessment (HIA) is required for the proposed addition.
3. An Archaeological Assessment Stage 1-2 is required for the entire property.
4. The applicant is to provide a shared access agreement with 141 and 145 John Street for the shared driveway.

5Variance 3 was originally proposed in order to optimize the proposed addition's building envelope. There was limited support for Variance 3 and on review of the building plan, it was decided and agreed upon that the variance was not necessary.

6Variance 4 related to the removal of the accessible parking stall requirement for the subject property and did not receive support. As a result, the Applicant was agreeable to implement an accessible parking space.

7Variances 1 and 2 are in relation to parking area setbacks. Due to the subject property being located within a primary transit area, the area has additional zoning regulations in regards to parking area setbacks. Subsequent to the original application, the City undertook a comprehensive parking review of rates and reduced parking rates across the City, resulting in a parking requirement reduction at the subject property from 4 parking spaces to 2. The Applicant has proceeded with proposing 3 parking spaces for the subject property.

8The Appellant appealed the decision of the CoA on the basis that Variances 1 and (1) do not maintain the general intent and purpose of the London Plan ("OP") and the 1989 Official Plan ("1989 OP"), (2) do not maintain the general intent and purpose of the ZBL, (3) are not minor in nature, (4) are not appropriate for the development of the subject property and area, and (5) do not represent good planning.

SUBJECT PROPERTY AND SURROUNDING LAND USES

9The subject property consists of a single, rectangular-shaped parcel of land located on the south side of John Street, between Talbot Street and St. George Street. The subject property has a lot frontage of approximately 9.14 metres ("m") along John Street and a lot area of approximately 625 square metres ("m²").

10Currently occupying the subject property is a 2-storey duplex dwelling, hardscaped driveway/parking area, landscaping and outdoor amenity area.

11Existing vehicular access to the subject property is provided by easement located on 145 John Street, which leads to the surface parking area at the rear of the subject property.

12The subject property is located within an older, established residential neighbourhood proximate to Downtown London and the Richmond Street commercial corridor. This area is characterized by older housing stock, a variety of housing types, residential intensification in existing and new dwellings, and a varied demographic profile with lot sizes generally being small with narrow frontages.

13The subject property is designated Low Density Residential in the 1989 OP (repealed May 25, 2022 by City Council) and identified within the Neighbourhoods Place Type along Neighbourhood Street in the OP. The lands are zoned Residential R3 (R3-1) in the ZBL and are located within an identified Near-Campus Neighbourhood as per both the OP and 1989 OP. The subject property is also 'listed' as per s. 27 of the Ontario Heritage Act ("Heritage Act").

14The subject property is also within the Talbot Mixed Use Area special policy area in the OP and within the Primary Transit area of the OP.

15Surrounding land uses are comprised of mix of residential uses, including: single detached dwellings, duplexes, triplexes, converted dwellings, multiple-attached dwellings, low-rise apartment buildings, and high-rise apartment buildings.

16Nearby to the east a range of commercial uses are located along both sides of Richmond Street.

PARTIES AND EVIDENCE

17Prior to the hearing, the Parties informed the Tribunal of their intention to settle and provided Minutes of Settlement ("MOS"). The Appellant, Applicant and City appeared at the hearing informing the Tribunal that the Parties were able to resolve matters the week prior to the commencement of the hearing and had entered into the MOS. The settlement involves the approval of Variance 2 and the approval of a modified form of Variance 1. Parties have proposed the following as a modification for Variance 1 ("Modified Variance 1")

1. To permit a west parking area setback of 1m whereas 3.0m is the minimum required, save and except for the area extending from the southwest corner of the Property for 3.2m along the west property line.

18For further clarification, Variances 3 and 4, which were refused by the CoA, are not the subject of this appeal, Parties have agreed that the decision of the CoA to refused Variances 3 and 4 should be upheld.

19In support of the settlement, the Applicant brought forward one witness, Matthew Campbell. Mr. Campbell is a Registered Professional Planner and was qualified to provide expert evidence on the proposed Settlement.

20The following were entered into evidence for this matter:

Exhibit 1 – Affidavit of Matthew Campbell

Exhibit 2 – Map and Policy Excerpts

21There were no additional party or participant status requests.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

22When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act ("Act"), to determine if the requested variance:

1. Maintains the general intent and purpose of the official plan;
2. Maintains the general intent and purpose of the zoning by-law;
3. Is desirable for the appropriate development or use of the land; and
4. Is minor in nature.

All four elements must be satisfied.

PLANNING ANALYSIS

23The Tribunal relied on the uncontested planning opinion evidence of Mr. Campbell.

Provincial Policy Statement 2020

24Mr. Campbell informed the tribunal that he had conducted a review of Provincial Policy Statement 2020 ("PPS"), coming to the conclusion that Variance 2 and Modified Variance 1 are consistent with the PPS.

25Mr. Campbell opined that the Variances support a development pattern that is compact within an existing settlement area, is cost effective and efficient to minimize land consumption and reduces servicing costs. These considerations relate well to a healthy, livable and safe community.

Maintains the general intent and purpose of the official plan

26Mr. Campbell opined that Variance 2 and Modified Variance 1 maintain the intent and purpose of the OP. The OP encourages appropriate forms of intensification in Near-Campus Neighbourhoods through various planning applications for residential intensifications, including minor variances.

27Mr. Campbell opined that the proposed variances facilitate appropriate residential intensification as the proposed addition provides a residential intensity that is appropriate for the lot and proposed structure type. Mr. Campbell's uncontested opinion is that the adequately sized subject property can appropriately and compatibly accommodate the proposed fourplex dwelling by providing all requisite components for development, including sufficient on-site amenity area and parking.

28Mr. Campbell further opined that the proposed addition respects the character of the existing neighbourhood and is of a similar built form, scale, and character as the residential dwellings on adjacent properties along John Street as well the surrounding neighbourhood.

Maintains the general intent and purpose of the zoning by-law

29Mr. Campbell provided the opinion that Variance 2 and Modified Variance 1 maintain the intent and purpose of the ZBL.

30Mr. Campbell opined that the intent of minimum parking area setback requirements is to ensure compatibility with adjacent land uses. Given the requested variances are reflective of existing physical conditions of the subject property, which provide a parking area setback of 0m, Mr. Campbell anticipates that the subject property will continue to function with no undue negative impacts on adjacent lands. The type of parking suggested for the subject property is contiguous across multiple properties with no parking setbacks.

Is desirable for the appropriate development or use of the land

31Mr. Campbell provided the opinion that Variance 2 and Modified Variance 1 are desirable for the appropriate use of the subject property.

32Mr. Campbell opined that the proposed fourplex dwelling represents an appropriate and compatible form of residential intensification that is encouraged by the OP.

33The witness testified that the proposed variances will make efficient use of the underutilized subject lands by adding rental housing to the area without creating any undue negative impacts on surrounding lands. Instead the proposed construction of an addition to the existing structure at the subject property would involve the addition of landscaping to the rear and clear delineation of parking, which is currently a contiguous gravel lot with no formalized parking area.

34Mr. Campbell went on to provide the opinion that the proposed variances will enhance and formalize the rear yard parking. As such, the proposed variances are desirable for the appropriate use of the subject property by facilitating the proposed addition, representing an appropriate and compatible form of residential intensification.

Is minor in nature

35Mr. Campbell provided the opinion that Variance 2 and Modified Variance 1 are minor in nature.

36The witness opined that the variances are generally reflective of the existing conditions of the subject property, recognizing an established situation that has existed for many years. The existing condition of the subject property, characterized by minimal parking area setbacks, are consistent with characteristics of adjacent properties and the surrounding area.

CONCLUSION

37The Tribunal adopts the uncontested evidence of Mr. Campbell and comes to the finding that requested Variance 2 and Modified Variance 1 are consistent with the Provincial Policy Statement, 2020 and satisfy all four elements of s. 45(1) of the Planning Act.

ORDER

38THE TRIBUNAL ORDERS that:

a. The appeal of the City of London Committee of Adjustment's decision is allowed in part and the variances to By-law No. Z-1 described in Schedule 1 to this Order are authorized;

b. Zoning By-law No. 85-1 is hereby modified in accordance with Schedule 1 to this Order.

39No further notice is required with respect to the appeal and the minor variances as amended from the original Application, the Tribunal having determined, as provided for in s. 45(18.1.1) of the Planning Act, that the requested amendments are minor.

"S. Mann"

S. MANN 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.