CORRECTION NOTICE

OLT CASE NO(S).: OLT-22-004463

DECISION ISSUE DATE(S): February 27, 2023

CORRECTION NOTICE ISSUE DATE: March 08, 2023

RE: Holder vs. Whitby (Town)

Correction to: The name of one of the Applicant/Appellant’s was misspelled in the Title of Proceedings and has now been corrected.

Originally: Applicant/Appellant: Terrance and Pelagia Holder

Corrected to: Applicant/Appellant: Terrence and Pelagia Holder

“Euken Lui” EUKEN LUI REGISTRAR

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.

ISSUE DATE: February 27, 2023

CASE NO(S).: OLT-22-004463

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

Applicant/Appellant: Terrence and Pelagia Holder

Subject: Minor Variance

Property Address/Description: 117 Ribblesdale Drive

Municipality/UT: Town of Whitby

Municipal File No.: A/42/22

OLT Case No.: OLT-22-004463

OLT Lead Case No.: OLT-22-004463

OLT Case Name: Holder v. Whitby (Town)

Heard: January 20, 2023 by Video hearing

APPEARANCES:

Parties	Counsel
Terrence and Pelagia Holder	Mark Vernon

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Appellant appealed the decision of the Committee of Adjustment (“Committee”) of the Town of Whitby (“Town”) not authorizing a minor variance application (“MV Application”) for the property municipally known as 117 Ribblesdale Drive (“Subject Property”). The Appellant proposes a basement apartment with an extra parking space for a semi-detached bungalow, with an attached garage. When the Appellant filed its MV application with the Town, three minor variances were sought for the basement apartment: a reduction in the minimum required lot frontage and the minimum required front yard landscaped open space and an increase in the maximum permitted floor area of the accessory apartment. The Town’s planning department report supported the MV application however, the Committee refused to authorize it despite this endorsement based primarily on community concerns.

2A hearing was held on January 20, 2023. The Town did not appear and the Applicant was represented by counsel. The Applicant summoned the Town planner, Mr. Justin Malfara (“Mr. Malfara” or the “Town’s Planner”), a registered planner who was qualified as an expert to give evidence in the field of land use planning.

[3] Two Participant requests were filed by neighbours:

1. Kendra Eisel, and
2. Jeanne Lafranier.

4A Party status request was filed by Mr. Peter Barlett along with a written submission. At the hearing, Mr. Barlett requested that he be granted Participant status instead of Party status. Counsel for the applicant objected to all the Participant status requests based on the submission that the Participants should not be permitted to cross-examine the planning witness. All Participant requests were granted by the Tribunal since a Participant has no right to participate in the oral hearing and to cross-examine witnesses. Participants simply have the right to make written submissions to the Tribunal for its consideration.

5The appeal of the Committee decision to the Tribunal requires a hearing de novo of the Minor Variance application. Mr. Malfara gave evidence to the Tribunal relating to the applicable tests under the Planning Act.

[6] Mr. Malfara explained that the Subject Property is a semi-detached dwelling with an attached garage. The subject property is designated Residential in the Town of Whitby Brooklin Community Secondary Plan (“OP”) and is zoned Residential (R3B) within Zoning By-law 1784 (“ZB”). The property only has two parking spots, one in the garage and the other in the driveway. At the time the MV application was filed, three variances from ZB requirements were necessary:

• reduction of the minimum required lot frontage for a semi-detached dwelling containing an accessory apartment dwelling unit from 10.0 metres (“m”) to 9.1m;
• increase the maximum permitted floor area of an accessory apartment from 45% to 89% of the primary dwelling's floor area; and
• reduction of the minimum required front yard landscaped open space from 40% to 39% to facilitate an extra parking spot in the driveway for the basement apartment.

IMPACT OF BILL 23 ON THE APPEAL

7The central issue in this case is whether proceeding with the appeal of the MV application is unnecessary due to the passage of Bill 23 amending the Planning Act (“Act”). Counsel took the position that by virtue of Bill 23, the Applicant could proceed to secure a building permit to construct a basement apartment and would be unimpeded by the ZB requirements for minimum required lot frontage, minimum required front yard landscaped open space and the maximum permitted floor area of the accessory apartment.

8Mr. Malfara’s planning evidence supported this interpretation of the Bill. He advised that the Town interprets the effect of section 9 of Schedule 9 of Bill 23, which replaces the current section 35.1(1) and (2) of the Act to allow accessory basement apartments as of right. This section goes on to eliminate a Municipality's right to stipulate minimum floor area for a residential unit and to require more than one parking spot per residential unit.

BASEMENT APARTMENTS

9On the issue of basement apartments generally and minimum required frontage, the Tribunal refers to section 9(1) of Schedule 9 of the Bill which states:

“9. Subsections 35.1 (1) and (2) of the Act is repealed and the following substituted:

Restrictions for residential units

(1) The authority to pass a by-law under section 34 does not include the authority to pass a by-law that prohibits the use of,

(a) two residential units in a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if all buildings and structures ancillary to the detached house, semi-detached house or rowhouse cumulatively contain no more than one residential unit;

(b) three residential units in a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains any residential units; or

(c) one residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if the detached house, semi-detached house or rowhouse contains no more than two residential units and no other building or structure ancillary to the detached house, semi-detached house or rowhouse contains any residential units.

10Clearly based on this provision, a ZB cannot forbid the development of a basement apartment in the semi-detached dwelling on the Subject Property due to section 9(1)(a) of Schedule 9 of the Bill. The Municipality cannot use its ZB to impose performance standards preventing the use of a secondary unit in detached house, semi-detached house or rowhouse on a parcel of urban residential land. Thus, the restrictions on minimum lot frontage of the ZB for a secondary unit, have no further application.

MINIMUM REQUIRED FLOOR AREA

11On the issue of basement apartments generally and minimum required floor area, the Tribunal refers to section 9(1.2) of Schedule 9 of the Bill which states:

Same, minimum area

(1.2) The authority to pass a by-law under section 34 does not include the authority to pass a by-law that regulates the minimum floor area of a residential unit referred to in subsection (1) of this section.

12Clearly based on this provision, a ZB cannot regulate the minimum floor area of a basement apartment in the semi-detached dwelling on the Subject Property due to section 9(1.2) of Schedule 9 of the Bill. Thus the restrictions on minimum permitted floor area of the ZB for a secondary unit, have no further application.

NUMBER OF PARKING SPOTS

13On the issue of basement apartments generally and minimum number of parking spaces, the Tribunal refers to section 9(1.1) of Schedule 9 of the Bill which states:

Same, parking

(1.1) The authority to pass a by-law under section 34 does not include the authority to pass a by-law requiring more than one parking space to be provided and maintained in connection with a residential unit referred to in subsection (1) of this section.

14Clearly based on this provision of the Bill, a ZB cannot require more than one parking spot for basement apartment in the semi-detached dwelling on the Subject Property. The property has one in the garage and the other in the current driveway.

15In the planner’s view, if the appellant were to withdraw the request for an expansion of the driveway, a minor variance application would not be required. The house has two parking spots, one in the garage and the other in the current driveway, which is all that is required by Bill 23. After reviewing submissions of counsel, the Tribunal accepts this evidence. The effect of Bill 23 is as stated.

ADDITIONAL PARKING SPOT MINOR VARIANCE APPLICATION

16The Appellant wishes to expand the driveway to 5.5m at the Subject Property to accommodate an additional parking spot. Thus, Appellant wishes to proceed with the minor variance application to reduce the minimum required front yard landscaped open space from 40% to 39% which would facilitate this additional parking.

17Mr. Malfara advised the Tribunal that the general intent of the minimum front yard landscaped open space provision is to ensure that an appropriate amount of landscaping can be accommodated within the front yard of the property. In his view, this minor reduction in the front yard open space would not be material and thus the intent and purpose of the ZB open space requirements would be maintained.

18In his view, the OP is designed to accommodate a range of different housing and residential intensification. By permitting the proposed variance, the intent and purpose of the OP is maintained since it will facilitate the addition of an apartment to the housing stock.

19Mr. Malfara also advised the Tribunal that the variance is desirable and minor in nature. It will facilitate the development of additional affordable housing and alleviate any potential parking concerns for the local community and thus no adverse impacts from a planning point of view are anticipated.

20The variance is also consistent with the PPS since it increases the range of housing opportunities and conforms with the intensification goals of the Growth Plan for the Golden Horseshoe.

21The Tribunal accepts the planning evidence regarding the minor variance application for the additional parking spot and finds that it is consistent with the PPS, conforms to the Growth Plan and the requirements of Act.

ORDER

22THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law 1784 is authorized.

“A. Cornacchia”

A. CORNACCHIA

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.