Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 20, 2023
CASE NO(S).: OLT-21-001873
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Mohsin Ali
Subject: Minor Variance
Property Address/Description: 1757 South Cameron Boulevard
Variance from By-law: 8600
Municipality: City of Windsor
OLT Case No.: OLT-21-001873
OLT Lead Case No.: OLT-21-001873
OLT Case Name: Ali v. Windsor (City)
Heard: July 14, 2022 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Mohsin Ali | Vijay Vasantgadkar* |
| City of Windsor | Aaron Farough |
DECISION DELIVERED BY S. MANN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is a Settlement Hearing concerning an appeal by Mohsin Ali (“Appellant”). The Appellant is seeking a Minor Variance to allow for the development of a single unit dwelling with a reduced minimum lot width (“proposed dwelling”) at 1757 South Cameron Boulevard (“subject property”), a vacant lot located within an existing developed area of the City of Windsor (“City”).
2The Appellant is seeking the following minor variances (“Requested Variances”) from the provisions of Zoning By-Law No. 8600 (“ZBL”):
(1) for reducing the minimum lot width from 12 metres (“m”) to 7.62 m;
(2) for reducing the minimum lot area from 360.0 square metres (“m2”) to 253 m2, and
(3) for reducing the minimum side yard width from 1.2 m to 0.6 m.
EVIDENCE
3The parties agreed to have the City call one witness, Simona Simion, a planner employed by the City, to present planning opinion evidence on the matter.
4The Tribunal had before it the Affidavit of Ms. Simion, which is Exhibit 1 to the proceedings.
BACKGROUND
5The Appellant submitted his application to the City in September 2021. The application was denied by the Committee of Adjustment on October 21, 2022 due to the finding that the variance for reduction in side yard setback was not appropriate, given the narrow size of the lot.
6The subject property is designated Residential Areas in the City Official Plan (“OP”) and zoned Residential (RD1.2 Residential District) under the ZBL, permitting one single unit dwelling and accessory uses.
7Planning staff had recommended that the minor variance to reduce the minimum side yard width be denied and that the minor variances for reduction of minimum lot area and minimum lot width be approved subject to the condition that “the owner is only allowed to have one single dwelling unit in the building, while no additional dwelling unit is permitted in either the main or accessory structures.”
8The opinion of Ms. Simion was that the proposed variances for reduction of lot area and minimum width met the statutory requirements for minor variance; however, when combined with the request for reduced minimum side yard width, the application failed to meet the statutory requirements.
SETTLEMENT
9The Appellant and the City have come to a settlement with regards to the Requested Variances as outlined in the July 12, 2022 Minutes of Settlement (“MOS”).
10The MOS outline that the parties agree that the Committee of Adjustment’s decision should be amended in order to remove the following:
- That the Committee or Adjustment decision in file A-085/21 be amended by deleting the clause:
'AND IT IS hereby decided that the application for the purpose of reducing the minimum side yard width BE DENIED
AND IT IS HEREBY FURTHER ORDERED that in the event the relief hereby granted is not used or acted upon in whole or in part within
1 Year
2 Years
after the dating hereof, the Order granting said variance(s) shall expire and be deemed to be annulled and rescinded by the said Committee of Adjustment.
And replace it with:
AND it is hereby decided that the application for the purpose of reducing the minimum lot width BE approved subject to the condition that the owner shall only be permitted to have one single dwelling unit in the building and no additional dwelling unit shall be permitted in either the main building or any accessory structures.
AND it is hereby decided that the application for the purpose of reducing the minimum lot area BE APPROVED subject to the condition that the owner shall only be permitted to have one single dwelling unit in the building and no additional dwelling unit shall be permitted in either the main building or any accessory structures.
AND it is hereby decided that the application for the purpose of reducing the minimum side yard BE Denied.
AND it is hereby further ORDERED that in the event the relief hereby granted is not used or acted upon in whole or in part within 1 year after the dating hereof, the Order granting said variances(s) shall expire and be deemed to be annulled and rescinded by the said Committee of Adjustment.
11The effect of the change is to uphold the denial of the requested variance to reduce minimum side yard setback and approve the requested variances for reduction of minimum lot width and minimum lot area, subject to the condition outlined above (“Amended Variances”).
ANALYSIS
12As explained by the expert opinion evidence of Ms. Simion, the requested Amended Variances satisfy the four tests for minor variances as outlined in s. 45(1) of the Planning Act (“Act”).
General Intent of the Official Plan
13As previously stated, the subject property is designated Residential. The Amended Variances would allow the Appellant to construct a single residential dwelling, which is permitted by the OP as it conforms with the associated objectives and policies which are twofold: to facilitate residential intensification and to ensure compatibility to the surrounding context and neighbourhood.
14The lot size of the subject property is significantly smaller than the surrounding neighbourhood lots. The Requested Variances would result in a dwelling that would magnify the out-of-context nature of the lot.
15In order to mitigate the departure from the neighbourhood context, scale, spacing and pattern, it was the opinion of both City Staff and Ms. Simion that the subject property only permit one single dwelling unit, rather than three units as would normally be as-of-right, and maintain the standard side yard setback.
General Intent of the Zoning By-Law
16The Amended Variances propose a single family dwelling, which is permitted under the ZBL, with the exception of the Requested Variances.
17The purpose and intent of the ZBL is to establish uses and development parameters for neighbourhoods in order to establish continuity and conformity to preserve neighbourhoods, while allowing small variability on occasion.
18In the case of the subject property, the ZBL is not fully maintained as there is significant variation from the required parameters; however, the intent and purpose regarding use itself is maintained.
Minor in Nature
19It is the opinion of Ms. Simion that the Amended Variances do not lead to an adverse effect on neighbours of the subject property or the neighbourhood itself. In such circumstances, the Amended Variances are considered minor.
Desirable for Appropriate Use of Land
20The Requested Variances are not desirable for the use of land in regards to the subject property, as it would result in the construction of a two-storey dwelling on a narrow and reduced existing lot and would not conform to the character of the neighbourhood.
21However, as the Provincial Policy Statement 2020 (“PPS”) and the OP encourage infill development in order to make use of existing resources in the municipality, it is desirable to allow for the creation of a residential dwelling on the subject property.
22The Amended Variances allow for the creation of a dwelling to prevent the waste of an infill lot while at the same time, limiting the dwelling in order to preserve the neighbourhood character.
Summary and Conclusion
23On the uncontested planning evidence, the Tribunal finds that the Amended Variances have appropriate regard for matters of Provincial interest under s. 2 of the Act, are consistent with the policies of the PPS, meet the general intent and purpose of both the OP and ZBL, are minor in nature, and desirable for the appropriate use of land.
ORDER
24THE TRIBUNAL ORDERS that the appeal is allowed in part, and the variances to Zoning By-law No. 8600 are authorized as follows:
- reducing the minimum lot width BE approved subject to the condition that the owner shall only be permitted to have one single dwelling unit in the building and no additional dwelling unit shall be permitted in either the main building or any accessory structures;
- reducing the minimum lot area BE APPROVED subject to the condition that the owner shall only be permitted to have one single dwelling unit in the building and no additional dwelling unit shall be permitted in either the main building or any accessory structures;
- reducing the minimum side yard BE Denied; and
- in the event the relief hereby granted is not used or acted upon in whole or in part within one (1) year after the dating hereof, the Order granting said variances(s) shall expire and be deemed to be annulled and rescinded.
“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.