Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 05, 2023
CASE NO(S).: OLT-22-004817, OLT-22-004818, OLT-22-004819
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/ Appellant: Jane Mauch
Subject: Minor Variance Application
Description: For an accessory dwelling unit within a multi-family dwelling unit
Property Address: 1235 Radom Street, Unit 17
Municipality/UT: City of Pickering/Region of Durham
Municipal File No.: P/CA 125/22
OLT Case No.: OLT-22-004817
OLT Lead Case No.: OLT-22-004817
OLT Case Name: Mauch v. Pickering (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Jane Mauch
Subject: Minor Variance Application
Description: For an accessory dwelling unit within a multi-family dwelling unit
Property Address: 1235 Radom Street, Unit 17
Municipality/UT: City of Pickering/Region of Durham
Municipal File No.: P/CA 126/22
OLT Case No.: OLT-22-004818
OLT Lead Case No.: OLT-22-004817
OLT Case Name: Mauch v. Pickering (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Jane Mauch
Subject: Minor Variance Application
Description: For an accessory dwelling unit within a multi-family dwelling unit
Property Address: 1235 Radom Street, Unit 17
Municipality/UT: City of Pickering/Region of Durham
Municipal File No.: P/CA 127/22
OLT Case No.: OLT-22-004819
OLT Lead Case No.: OLT-22-004817
OLT Case Name: Mauch v. Pickering (City)
Heard: May 1, 2023 by video hearing
APPEARANCES:
Parties
Representative
Jane Mauch (“Appellant”)
Self-Represented
DECISION DELIVERED BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter is before the Tribunal as an appeal by Jane Mauch (“Appellant”) of a decision of the City of Pickering (“City”) Committee of Adjustment (“CoA”) denying two (2) minor variance requests for each of three townhomes at 1235 Radom Street (Units 17, 83, and 88) (“Subject Properties”), pursuant to s. 45(12) of the Planning Act (“Act”). The three applications were dealt with together.
2The Appellant is seeking to permit an Accessory Dwelling Unit (“ADU”) within a multiple family dwelling unit, whereas the By-law permits an accessory dwelling unit within a detached dwelling or semi-detached dwelling; and a variance where a total of 1.25 parking spaces are provided on the property where the accessory dwelling unit is located, whereas the By-law requires a total of three (3) parking spaces to be provided on the property where the accessory dwelling unit is located. The two (2) variances being requested are the same for the Subject Properties.
3Notice of hearing was properly issued by the Tribunal on March 22, 2023.
4The Municipal Record was submitted to the Tribunal consisted of a “complete package” dated December 1, 2022, from the CoA’s Assistant Secretary-Treasurer and marked as Exhibit 1.
PARTIES AND PARTICIPANTS
5The only party in attendance at the hearing was the Appellant, and the City informed the case manager on the morning of the hearing that the City would not be attending with its representative.
6The only Participant Request at the hearing was a written request from Ontario Condominium Corporation No. 11 (“OCC 11”), represented by Counsel Luis Hernandez, which includes a total of 97 townhome condominium dwelling units. The request indicated it was in complete support of the CoA’s decision of November 9, 2022, denying the variances.
7The Appellant objected to this request, claiming she did not receive a copy of the written request for Participant Status from Counsel according to the Tribunal’s Rules. After further consultation with the case manager, it became evident that an underutilized email address was used by Counsel, but that the request was submitted in a timely manner to the Tribunal and the written request was shared with the Appellant at the hearing during a break in the proceeding. The Appellant stood by her assertion that she objected, which was noted, however the Tribunal proceeded to confer Participant Status on OCC 11, and no other requests for status were submitted.
HEARING TESTIMONY AND SUBMISSIONS
8The hearing proceeded as an uncontested matter, with the Appellant providing testimony as a self-represented Party. The Appellant testified that her original requests for variances met the tests of s. 45 (1) of the Planning Act, were in line with s.2 of the Act and conformed with the Provincial Policy Statement 2020 (“PPS”) and the City’s Official Plan (“OP”).
9The Appellant further testified that the variance requests also met the objectives of the City’s Housing Strategy and Action Plan 2021-2031 and asserted that the City’s Planning Staff report fully supported the opinions of the Appellant and recommended approval of all of the variances to the CoA in November 2022.
OFFICIAL PLAN AND ZONING BY LAW
10The Appellant also testified that the concluding recommendations of the City’s Planning Staff stated the following:
Based solely on the applications and supporting documentation filed by the applicant, the City Development Department has reviewed the applications with respect to Section 45(1) of the Planning Act and considers the requested variances to be minor in nature, desirable for the appropriate development of the land, and in keeping with the general intent and purpose of the Official Plan and the Zoning By-law, and therefore recommends Approval of the proposed variances.
11Further to these concluding statements from the City’s Planning Staff, the Appellant testified the comments regarding conformity with the City’s OP for the benefit of the CoA, were as follows:
The subject property is designated “Urban Residential Area – Medium Density Residential Area” within the Bay Ridges Neighbourhood. Residential uses such as multiple family units are a permitted use. The “Urban Residential Area – Medium Density” designation permits residential uses and a minimum and maximum net residential density of over 30 and up to and including 80 dwellings per net hectare. Presently, the subject property has 97 multiple family dwelling units, with a total lot size of approximately 2.5 hectares. The surrounding neighbourhood consists of primarily detached, townhouse and apartment dwellings. Multiple family dwelling units are permitted on the subject site. In addition, Section 3.4(a) of the Official Plan states that Accessory Dwelling Units (ADUs) are not included in density calculations. Staff is of the opinion that the proposed variances to permit an ADU maintain the general intent and purpose of the Official Plan.
PARKING VARIANCE REQUEST
12The Appellant also testified that the parking requirements associated with the applications were outdated and impractical as they applied to the townhome development originally built approximately 50 years prior. Since that period, the Appellant testified she believed that the demand for parking was mitigated by close access to bus transit within the townhome development, a nearby GO Station, and other means of local transportation. Additionally, the Appellant asserted that the proximity of retail/commercial and community uses, parks and conservation areas were well within walking distance for future prospective residents of the ADUs and emphasized the demand for housing that serviced persons without the ability to own vehicles themselves would also be accomplished, therefore negating the need for more parking.
13In support of this, the Appellant provided a summary of the City’s Planning Staff comments on the question of parking with the following reference in the report:
14The subject property is within a kilometre from alternative modes of transportation including the Durham Region Transit Route 120 which leads to Pickering’s City Centre north of Highway 401, the Pickering GO Station. Furthermore, the subject property is within a reasonable walking distance to local commercial and retail services at the base of a nearby mixed-use development and live and work dwellings. As such, staff is of the opinion that sufficient parking is provided for both dwelling units (Report P/CA 125/22 to P/CA 127/22 November 9, 2022 Page 4.) Presently, the subject property includes 97 multiple family dwelling units. The permitted minimum parking requirement is 1.25 parking spaces per dwelling unit, therefore the By-law requires a minimum 122 parking spaces. Presently, there are 142 parking spaces on the subject property. It appears there is sufficient parking space on the subject property. Staff is of the opinion that the variance adheres to Provincial policies and meets the general intent and purpose of Zoning By-law No. 2520.
ADDITIONAL ISSUES
15The Appellant further testified that the CoA was remiss and inconsistent in considering Planning Staff’s reference to other conditions the Appellant must meet, if successful with the variance requests, including the Ontario Building Code, the Ontario Fire Code and their requisite conditions relating to ADU’s.
16The Appellant persisted in her testimony adding that Planning Staff clearly opined the requested variances are desirable for the appropriate development of the land and are minor in nature.
17Conditions associated with the Toronto and Region Conservation Authority (“TRCA”) were also referenced in the Planning Staff report which stated the Appellant will require a TRCA Permit for Unit 88 (P/CA 127/22). TRCA staff had no objections to the proposal in principle and supported the requested variances.
18Furthermore, the Appellant also referenced that there were no concerns from the City’s Engineering Services and Building Services, which were also in evidence with the Planning Staff report.
PROVINCIAL POLICY STATEMENT 2020
19In summary, the Appellant testified to the importance of the PPS, and the relevant PPS framework in encouraging additional density in developed areas, creating new housing in a range of different buildings that address the need for different forms of housing alternatives, within areas with accessible means of transportation and access to public transit. The Appellant asserted the ADUs in the Subject Properties accomplished that objective in the PPS in building strong and healthy communities, and therefore conforms with the document.
LEGISLATIVE FRAMEWORK
20An appeal pursuant to section 45 of the Planning Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in section 45(1) have been met, namely that the requested variance:
a. maintains the general intent and purpose of the official plan ("OP");
b. maintains the general intent and purpose of the ZBL;
c. is minor in nature; and
d. is desirable for the appropriate development or use of the land, building or structure.
21In addition, section 3(5) of the Planning Act requires the Tribunal's decision to be consistent with the PPS. The Tribunal must also have regard to the matters of provincial interest set out in section 2 of the Act, as well as for the decision of the Committee and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.
ANALYSIS AND DISPOSITION
22Based on the uncontested testimony and submissions from the Appellant, and the corroborating City Planning Staff report and recommendations to the CoA in the first instance, and now before the Tribunal as a de novo hearing, the Tribunal finds that the tests pursuant to s. 45 (1) of the Planning Act are met. The appeals meet the objectives of s. 2 of the Act, and conform with the PPS and the City’s OP.
23While the testimony of the self-represented Appellant may have been lacking in continuity and a more formal structure at the hearing and was not expert evidence and opinion, the rationale asserted in oral testimony was succinct and generally very credible. The testimony was also supported through the evidence provided in the City Planning Staff report, which satisfied the appropriate planning expertise necessary in such circumstances.
24Planning Staff were very clear with their recommendations in support of the applications at the CoA hearing in November 2022, and although the variances were all denied at the CoA, the Tribunal is of the opinion that all the relevant planning tests were addressed fully and effectively at this hearing and is satisfied the tests pursuant to the Planning Act have been met.
25Therefore, for reasons referenced previously, the Tribunal finds that the requested variances are desirable and have regard for matters of provincial interest pursuant to the Act and are consistent with the PPS and the City’s OP and have appropriate regard for the tests pursuant to s. 45 (1) of the Planning Act. The appeals shall be allowed in each instance, and the related variances in each of the three (3) appeals shall also be allowed.
ORDER
26THE TRIBUNAL ORDERS that the appeals are allowed and the variances to Zoning By-law No. 25-20 are authorized.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.