Patel v. Burlington (City), 2023 CanLII 23958

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 23, 2023

CASE NO(S).: OLT-22-004767

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

Applicant and Appellant: Dhruman & Jugmi Patel

Subject: Minor Variance

Description: To permit to construct a new 2 ½ storey detached dwelling on a corner lot with an attached garage facing a street side yard

Reference Number: 540-02-A-032-2022

Property Address: 3503 New Street

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-22-004767

OLT Lead Case No.: OLT-22-004767

OLT Case Name: Patel v. Burlington (City)

Heard: March 10, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Dhruman and Jugmi Patel (collectively “the Applicant” or “the Appellant”)	Sara Premi
City of Burlington (“the City”)	Kacie Layton

DECISION DELIVERED A. CORNACCHIA AND ORDER OF THE TRIBUNAL

1. BACKGROUND

1The Appellant appealed the decision of the City’s Committee of Adjustment (“Committee”) refusing to authorize a Minor Variance Application (“MV Application”) regarding the property municipally known as 3503 New Street (“Subject Property”). The objective of the application was to facilitate the construction of a new 2 ½ storey detached dwelling on a corner lot with an attached garage facing Rothesay Place (“Rothesay”). The 1-storey home originally on the property has been demolished. The MV Application proposes the following variances for the construction of the proposed home: an increased permitted floor ratio, a reduced front yard setback, an increased building height, an additional half storey, a reduced driveway length and a reduced garage depth.

2The following is a summary of the requirements of the City’s Zoning By-law No. 2020 (“ZB”) and the original six requested minor variances in the MV Application filed with the City:

1. To permit a floor area ratio of 0.51:1, whereas the maximum permitted is 0.45:1 for a proposed 2 ½ storey dwelling with attached garage.
2. To permit an 8.5 m front yard setback abutting New Street, whereas the minimum required is 10.35 m (11 m – 0.65 m encroachment) for a proposed roofed-over 1-storey porch including steps and roof overhang excluding eaves and gutter.
3. To permit a 2 ½ storey dwelling, whereas the maximum permitted is 2 storeys.
4. To permit a building height of 12.3 m, whereas the maximum permitted is 10 m for a proposed 2 ½ storey dwelling with attached garage.
5. To permit a driveway length of 5.2 m, whereas the minimum required is 6 m.
6. To permit an internal garage depth of 5.4 m, whereas the minimum required is 6 m for a proposed attached garage.

3Two planning staff reports were prepared for the Committee. The first report supported all variances and recommended that the Committee authorize them. The second report only recommended that variances 2, 5, and 6 be authorized and the remainder be refused. The Committee did not authorize any of the relief sought by the MV Application. The Applicant appealed the Committee’s decision.

4Prior to the hearing, the City and the Applicant resolved their differences. The City agreed to support the MV Application provided that the requested building height variance was reduced from 12.3 metres (“m”) to 11.3 m. In addition, a change was made to the permitted floor area ratio sought to 0.50:1 to correct a mathematical error. Thus, the revised proposed MV Application is as follows, with the changes highlighted:

1. To permit floor area ratio of 0.50:1 instead of the maximum permitted 0.45:1 for a proposed 2 ½ storey dwelling with attached garage.
2. To permit an 8.5m front yard setback abutting New Street instead of the minimum required 10.35 m (11 m – 0.65 m encroachment) for a proposed roofed over 1-storey porch including steps and roof overhang excluding eaves and gutter.
3. To permit a 2 ½ storey dwelling instead of the maximum permitted 2 storeys.
4. To permit a building height of 11.3 m instead of the maximum permitted 10 m for a proposed 2 ½ storey dwelling with attached garage.
5. To permit a driveway length of 5.2 m instead of the minimum required 6 m.
6. To permit an internal garage depth of 5.4 m instead of the minimum required 6 m for a proposed attached garage.

2. HEARING

5At the beginning of the hearing, the Applicant, with the City’s support, requested that the Tribunal permit the identified changes to the MV Application and dispense with any additional notice requirement since the application changes are minor. The Tribunal granted this request under s. 45(18.1.1) of the Planning Act (“Act”). The amended variances seek relief of a lesser significance than that proposed in the original MV Application.

6The Applicant engaged Ms. Mary Lou Tanner (“Ms. Tanner”), a Registered Planner who was qualified by the Tribunal as an expert to give opinion evidence in the field of land use planning.

3. SUBJECT PROPERTY CONTEXT

7Ms. Tanner initially outlined the planning context for the application. The Subject Property is a corner lot at New Street and Rothesay. A significant portion of the lands are in the Tuck Creek flood plain requiring a construction permit from Conservation Halton. A permit was secured based on the following requirements dictated by Conservation Halton:

1. most of the proposed building footprint will be located outside the Tuck Creek flood plain area on the Subject Property,
2. a basement will not be constructed but a flood proof crawl space is permitted,
3. the driveway must be on Rothesay outside the flood plain.

8The absence of a basement in the house limits the design options. The proposed house will be a two and a half storey house, without a basement, that presents its front door face to New Street. The attached garage is on Rothesay where the driveway will be located. In order to accommodate the space furnished by a typical 2-storey house on the lot, an additional half storey is required to allow for the storage space and recreation space that would normally be found in a basement.

9The Subject Property is in an area where there are primarily single-detached bungalows and a few 2-storey dwellings. Across from property on New Street to the south, one finds a series of rear yards with trees. To the west on Rothesay, one finds detached bungalows sited closer to the street, to the north side on Rothesay, a detached bungalow is found and on the east side on New Street one finds a detached 2-storey home.

10The planner identified that the most significant variances sought by the MV Application related to the building height, maximum permitted floor area and the additional half storey. In her view, all this relief is driven by the need to exclude a basement from the Proposed House due to Halton Conservation requirements. She identified that the north rear yard setback and west side yard setback both exceed the minimum requirement, mitigating any negative impact from the proposed additional storey, additional height and floor area for the proposed house on the two adjacent neighbouring properties on Rothesay and New Street.

11The Subject Property is identified as “Urban Area” on Schedule “1” – Regional Structure – within the Halton Region Official Plan (“Halton OP”). The Subject Property is identified as “Built Boundary” on Schedule “1h” – Regional Urban Structure – of the Halton OP.

12The Subject Property is identified as “Residential Areas” on Schedule “A” – Settlement Patterns within the City of Burlington Official Plan (“Burlington OP”). Subject Property is within the Settlement Area. Subject Property is designated “Residential – Low Density” in the Burlington OP – Schedule B (Comprehensive Land Use Plan – Urban Areas).

13The Subject Property is zoned R2.1, Low Density Residential in the ZB.

14Ms. Tanner’s testimony regarding the proposed minor variances will be addressed by dealing with the three most significant variances first and then addressing the remaining variances which are of lesser importance.

4. VARIANCES OF SIGNIFICANCE TO THE APPLICATION

The variances of greatest significance in the MV Application are as follows:

1. Variance Three requests an additional half storey. The ZB only permits a building of 2 storeys while the Applicant wishes to build a house having 2.5 storeys.
2. Variance Four requests authorization to build a house having a height of 11.3 m instead of the maximum permitted height of 10 m. An additional building height of 1.3 m is sought.
3. Variance One requests authorization for a floor area ratio of 0.50:1 instead of the maximum permitted 0.45:1.

15Ms. Tanner’s advised the Tribunal that these three variances are of a minor character since there will be no significant adverse impact from them to adjacent properties. There will be minimal impact to the property to the north where a bungalow is located. The view from the window from the half storey will be on the roof of the bungalow, part of the front yard and a little of the rear yard. There are no windows for overlook from the half storey to the house on the west side. There is no impact to the houses to the south across the street on New Street, where rear yards face the proposed dwelling. The house to the east on Rothesay will not be impacted by the proposed house.

16Ms. Tanner testified that the proposed house maintains the intent and purpose of Halton OP. It is in line with the housing intensification objectives of the Halton OP. The proposed development will result in modest intensification that uses existing infrastructure.

17Ms. Tanner comprehensively reviewed the policies of the Burlington OP relating to Design Objectives and Design guidelines as they pertain to the proposed house. The Tribunal is satisfied that this proposal conforms with these guidelines.

18She pointed out that section 2.5.2 e) of the Burlington OP limits the maximum building height. It stipulates that in low density designations like this neighbourhood, the maximum building height should not exceed the average height of the highest points of the rooflines of existing residential properties immediately adjoining the subject property. In her view this provision of the Burlington OP, is not an absolute bar to a taller building on the Subject Property. Taller buildings on adjacent infill properties are permitted if there is a convincing reason for them and appropriate measures are taken to limit the negative impact of the variances.

19In Ms. Tanner’s view, the existence of the flood plain and Conservation Halton’s requirement to exclude a basement for the house, are a good reason for allowing a taller building. This is coupled with the design and other mitigation measures that have been taken to limit the impact of a taller building on the adjoining properties. These mitigation measures are:

1. This is a corner property that largely achieves the setbacks of the ZB.
2. There is no impact to the south or east as these dwellings are across New Street and Rothesay Place respectively.
3. The west side yard remains largely the same with amenity space in the yard. The height on the façade facing west includes windows however the overlook is to the rear yard. Fencing will buffer the property to the west.
4. The setback on the north side yard achieves the ZB requirements. The ZB permits a height of 10 m; the increase of 1.3 metres in height provides for use of the half-storey with one window.

20The overall impact of these variances is mitigated by the design and setbacks. Thus, these variances for the proposed house would not only conform with the requirements of the Burlington OP but they maintain its general intent and purpose.

21Ms. Tanner advised the Tribunal that the three variances maintain the general intent and purpose of the ZB. They implement the planned density for the entire site while addressing the floodplain requirements.

22Ms. Tanner opined that the proposed development is desirable since it will result in the construction of a 2 ½ storey home with appropriate storage and recreation space on the upper level. It is essentially a 2-storey home with the basement storage and recreation functions accommodated in the half storey on top driven by the flood plain risks and Conservation Halton requirements.

23The Tribunal accepts this evidence and finds that the three variances of greatest significance to the application satisfy the requirements of s. 45(1) of the Act. Turning now to the variances of lesser importance, the Tribunal will make its summary findings.

5. VARIANCES OF LESSER SIGNIFICANCE

A. Variance Two – Reduced Front Yard Setback

24The Tribunal finds that the reduced front yard setback variance is minor. The relief requested is to permit an 8.5 m front yard setback abutting New Street instead of the minimum required 10.35 m (11 m – 0.65 m encroachment) for a proposed roofed-over 1-storey porch including steps and roof overhang excluding eaves and gutter. The planning evidence identified that the reduced setback will have no impact on adjoining properties and a more significant setback than that found on adjoining homes, which is appropriate for a corner lot. It is desirable since it facilitates visual sight lines on New Street and supports the building location requirements of Conservation Halton. It also maintains the general intent and purpose of both the ZB and OP for the reasons previously identified for the significant variances.

B. Variance Five – Decreased Driveway Length

25The Tribunal accepts the planning evidence that the reduced driveway length variance of 5.2 m instead of the minimum required 6 m is minor. The planning evidence identified that the reduced driveway length will have no impact on adjoining properties and is required due to the driveway siting requirements of Conservation Halton. It is desirable since it places the driveway outside of the floodplain. It also maintains the general intent and purpose of both the ZB and OP for the reasons previously identified for the significant variances.

C. Variance Three – Decreased Garage Depth

26The Tribunal finds that the reduced garage depth variance of 5.4 m instead of the minimum required 6 m is minor. The planning evidence identified that the reduced garage depth will have no impact on adjoining properties and achieves a garage which is flush with the facade. It is desirable since the garage will have sufficient parking space. It also maintains the general intent and purpose of both the ZB and OP for the reasons previously identified for the significant variances.

6. SUMMARY

27In summary, the MV Application satisfies the requirements of s. 45(1) of the Act. It is minor, desirable for the use and development of the Subject Property and maintains the general intent and purpose of both the applicable Official Plans and the ZB.

28The Tribunal finds that the application addresses matters of provincial interest, is consistent with the Provincial Policy Statement (“PPS”) and conforms to A Place to Grow, Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The MV Application addresses matters of provincial interest and is consistent with the Hazard Land policies of the PPS since it seeks to protect ecological systems by securing a Conservation Halton permit. It also utilizes a vacant lot in a built-up area and increases the range of housing options.

29The proposed development conforms to the Growth Plan as it prioritizes intensification to the growth areas to make efficient use of land and current infrastructure. The property is well served by municipal utilities, road and transit infrastructure. It will also add to the range of housing options available.

7. ORDER

30THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 2020 are authorized.

“A. Cornacchia”

A. CORNACCHIA 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.