Ontario Land Tribunal
Issue Date: June 16, 2023 Case No(s).: OLT-22-004860
Proceeding Commenced Under: subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Angela George and Randolph Fernandez Subject: Minor Variance Description: To permit an ancillary medical office as home occupation within an existing dwelling Reference Number: A520/22 Property Address: 2050 Burbank Drive Municipality/UT: Mississauga/Peel OLT Case No.: OLT-22-004860 OLT Lead Case No.: OLT-22-004860 OLT Case Name: George v. Mississauga (City)
Heard: May 3, 2023 and continued May 19, 2023
Appearances
| Parties | Counsel |
|---|---|
| Angela George and Randolph Fernandez | Max Reedijk |
| City of Mississauga | Alex Ciccone |
| Jocelyn and Bradley Clarke et al. | Marc P. Kemerer |
DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL
Introduction
1The matter before the Tribunal is an appeal filed by Angela George and Randolph Fernandez (“Applicants”) against the decision of the Committee of Adjustment’s (“COA”) decision on November 17, 2022, in relation to two minor variances (“MV”) from Zoning By-law No. 0225-2007 (“ZBL”) concerning 2050 Burbank Dr. (“Subject Property”) in the City of Mississauga (“City”).
[2] The Applicant sought two variances to permit: a. a “Medical Office – Restricted” (“Medical Office”) as a home occupation use, and b. for the home occupation use to employ staff who are not residents of the detached dwelling.
Subject Site and Neighbourhood Context
3The Subject Property is within a well-established neighbourhood known as the Erin Mills Neighbourhood. The neighbourhood extends from Highway 403 and Unity Drive in the north, Laird Road and Dundas Street West in the south, Ridgeway Drive in the west and the Credit River in the east.
4The immediate neighbourhood surrounding the Subject Property is characterized with single detached two storey modest dwellings with attached garages and mature trees.
5The Subject Property is the most easternly dwelling fronting onto the southside of Burbank Drive between Walnut Grove Road and Belvedere Crescent. The first four dwellings that front onto Belvedere Crescent back onto the side yard of the Subject Property which is divided by a privacy fence and tree line.
6The Subject Property boasts a two-storey single detached dwelling with an attached three car garage on the left, leading from a stone paved driveway that can host eight vehicles. From the driveway there is a walkway that leads to the front door and a secondary walkway that leads to the rear yard between the attached garage and the privacy fence where a side entrance is located.
Background
7The MV will allow the Applicant, namely Dr. George, one of the home occupants who is a licensed physician, to operate and maintain their practice within the dwelling. The MV was filed following a period of time of noncompliance with the ZBL and the home medical practice has since ceased operation.
8The operation of the Medical Office is planned to follow the policies of the ZBL for Home Occupation with the exceptions of the proposed MV for non-resident employee.
9The day-to-day operations of the Medical Office are envisioned where clients/patients will arrive to the Subject Property utilizing a parking spot on the driveway, if required. The client would then walk along the pathway between the attached garage and privacy fence to the rear entrance where the office is located.
Status Requests
10The Tribunal was in receipt of four requests for Participant Status (Exhibit 5) in favour of the proposed MV from: (1) Charles Gervais, owner of the property directly west at 2058 Burbank Drive, (2) Ian and Linda Ray, owners of 3563 Belvedere Crescent, (3) Katherine and Marc Berman, owners of 3639 Belvedere Crescent, and (4) Robert Sauls, owner of 3579 Belvedere Crescent.
11The Tribunal granted Participant status to all four of the requests noted above, on consent of the City and Applicant.
12The Tribunal was also in receipt of one Party request from Jocelyn and Bradley Clarke (exhibit 4), owners of the property directly east at 3529 Belvedere Crescent. Mr. and Mrs. Clarke retained Mr. Marc Kemerer and were prepared with a land use planning expert, Mr. Michael Barton. Additionally, Mr. Kemerer explained to the Tribunal that he was representing 11 other residents’ and property owners’ interests that are within the neighbourhood. Mr. Kemerer clarified that his clients have a direct interest in the MV and take a different perspective than the City, being that the medical office will take on a commercial use within a residential area.
13The Applicant was opposed to granting this Party status to Mr. and Mrs. Clarke, stating it would delay the process and did not meet the requirements of rule 8.2 of the Tribunal’s Rules of Practice and Procedure. Moreover, the Applicant does not see a “special or unique position” in Mr. Barton’s statement and believes that there will be a duplication of testimony in the event the request is granted.
14The City supports the Party request, stating that the City and the Clarkes have a difference of perspective. Counsel for the City, Mr. Ciccone explained to the Tribunal that granting Party status will assist the Tribunal in adjudicating this matter as the Clarkes have a direct interest and knowledge of the immediate neighbourhood in comparison to the City.
15The Tribunal took all the submissions into consideration and granted Mr. and Mrs. Clarke, et al (“Neighbours”) Party status in the proceeding. The Tribunal found that the Neighbours have a direct interest and can provide local knowledge that will assist the Tribunal in adjudicating the matter.
Evidence
16The Tribunal considered the evidence from three expert witnesses. Stephanie Matveeva, retained by the Applicant, Michael Barton, retained by the Neighbours, and Allan Ramsay, retained by the City. All three witnesses were qualified as experts in land use planning.
Ms. Matveeva
17Ms. Matveeva opined that the MVs are consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms to the Growth Plan for the Greater Golden Horseshoe (“GP”), conforms to the Region of Peel Official Plan (“ROP”) and meets the four tests of s. 45(1) of the Planning Act (“Act”).
[18] To strengthen her position, she provided three conditions for the Tribunal’s consideration. These conditions are: a. the “Medical Office – restricted” use must otherwise comply with all provisions of the ZBL that apply to “home occupation” uses. b. the detached dwelling must be the principal private residence of the health professional and the health professional must not be an occasional or casual resident thereof; c. no more than a maximum of one employee, who does not reside in the private residence, shall be permitted.
19As it relates to the City’s Official Plan (“COP”), Ms. Matveeva relied on s. 11.2.5.3 that provides the overall policy direction for development within a residential low-density area. In addition to permitting detached, semi-detached, and duplex dwellings, the residential low-density areas permit (11.2.5.2.b) accessory office for physicians, dentists, health professionals, and drugless practitioners, and (11.2.5.2.c) home occupations.
20The COP also provides numerous built form policies and development criteria (s. 5.1, 5.35, 9.1, 9.2.2, 9.3, and 9.5). However, Ms. Matveeva is of the opinion that these policies relate to development and alterations to the site and, given that the exterior of the dwelling is not being altered, the established built form of the community will not be affected by the MV.
21During Ms. Matveeva’s testimony she enlightened the Tribunal that in July of 2019 the City’s initiated zoning bylaw amendments, which included the removal of the as-of-right permission (s.4.1.17) for an accessory office for physicians on residential lands, came into full force and effect. The staff report (found at Exhibit 1, Tab 22) states that “Over time, these uses have evolved from being accessory to principal residence of the practitioner to large clinics, which in effect introduce commercial uses into residential neighbourhoods. With these larger facilities come parking and traffic issues on local roads. Their uses are more suited to commercial plazas or office spaces”. The staff report further states that their uses “have evolved from small offices to full clinics with commercial character and create traffic not typical on residential streets”.
22Nevertheless, Ms. Matveeva is of the opinion that the MVs are technical in nature and seeks the permissions that otherwise meets all the provisions that apply to “home occupations” uses that are more stringent than the provisions that are now deleted in the ZBL. For example, home occupations permit half of the space that was originally permitted in s.4.1.17. However, the Tribunal notes that 4.1.17.6 permitted a maximum of one employee in addition to the physician.
23During cross examination, the City asked Ms. Matveeva if the removal of s.4.1.17 of the ZBL provides “a clear intent to remove these uses” from residential areas. Ms. Matveeva agreed, but further clarified that the intent of its removal is regarding the commercializing of residential buildings and that the MV is regarding a home occupation business.
24In regard to the test of desirability, Ms. Matveeva opined that the MV will allow for modest and appropriate reinvestment to occur. Furthermore, the requested use will enable a sensitive balance of permitting a home occupation use, while preserving and respecting the established character of the Subject Property and the surrounding neighbourhood.
25Ms. Matveeva stated that the MV are individually and collectively minor. She provided a three-prong test: size, significance, and impact. She notes that in regard to “size” the MV does not represent a notable departure from the current permissions. The “significance” of the requested MVs are sought in the appropriate venue and, in Ms. Matveeva’s opinion, do not need a fulsome review before Council through a zoning bylaw amendment. Lastly, regarding the “impact”, Ms. Matveeva is of the opinion that the addition of the medical use and additional on-site employee will not have any adverse impacts that are above and beyond those that are already permitted for home occupation uses.
26Mr. Kemerer, counsel for the Neighbours asked Ms. Matveeva if the MV would result in a change from residential to commercial, and additionally if the neighbours backing onto the side yard (where the walkway is) would see an increase of traffic. Ms. Matveeva disagreed that that there would be a perceived changed from residential to commercial as the built form was not being altered. However, she did agree that the additional traffic “could appear to them” (as in, the adjacent neighbours).
27Ms. Matveeva further testified that in July of 2019, during the same period of the removal of the permission of medical office use in residential areas, a variance was granted in the City with respect to a medical office (psychotherapist) in a residential area. However, during cross examination Ms. Matveeva agreed that the variance granted did not include the permission for additional staff and that since then no other variances have been applied for nor granted regarding medical offices in residential areas.
Mr. Barton
28Mr. Barton opined that the proposed MVs are not consistent with the PPS (1.1.1, and 1.1.3.4), conforms with the GP, do not conform to the ROP or COP, as the MV will result in a use that is not appropriate for the existing neighbourhood, and lastly do not meet the four tests set out in s. 45(1) of the Act.
29As stated above, s.11.2.5.2 of the COP allows home occupations and accessory medical offices in residential areas. Mr. Barton is of the opinion that the medical office use does not meet the definition of a “home occupation” as the medical office will not be incidental and secondary to the use of the dwelling and will significantly change the residential character of the dwelling and neighbourhood. Moreover, Mr. Barton opined that the medical office would operate as an additional use on the Subject Property as opposed to a home occupation use that is accessory to the primary residential use.
30Under cross examination Mr. Barton was asked a number of questions regarding the difference of the proposed MVs and the as-of-right home office uses such as a lawyer or financial planner. In Mr. Barton’s opinion, the medical use will take on a commercial use which would be better suited in designated employment lands.
31Speaking to the general intent of the ZBL, Mr. Barton relied on the removal of s.4.1.17, stating that existing medical offices are permitted but new offices will not be. Additionally, Mr. Barton is of the opinion that the regulations of a medical office home occupation will be difficult to control and enforce. However, during cross examination from the Applicant, Mr. Barton agreed that s.1.1.15 of the ZBL outlines the enforcement measures of the ZBL and the Applicant would need to comply to them.
32Mr. Barton is of the opinion that the MVs are not desirable for the Subject Property and that the use of the medical office will be that of a commercial use, as opposed to a home occupation. He went on by saying that the proposal will not preserve the stable residential character (due to proposed increased traffic) of the neighbourhood and is more appropriate for existing nearby properties designated for mixed used and commercial purposes.
33For similar reasons as mentioned above, Mr. Barton opined that the MVs are not minor in nature as the creation of a home occupation medical office use will establish a commercial use in a residential area.
Mr. Ramsay
34It is the opinion of Mr. Ramsay that the MVs have regard for s. 2 of the Act, are consistent with the PPS, conform to the GP and the ROP. However, Mr. Ramsay is of the opinion that the MVs do not meet any of the requirements under s. 45(1) of the Act.
35The City retained Mr. Ramsay in March of 2023 following the appeal of the decision of the COA. The City planning staff recommended approval of the MVs for the COA consideration which was refused.
36Mr. Ramsay opined that the proposed medical use needs to co-exist and must not have an adverse impact, while keeping the neighbourhood character, which he defines as being detached 1-2 storey dwellings on large lots with mature trees and vegetation. Other than the two elementary schools located on Sawmill Valley Dr and the community shopping plaza along Erin Mills Parkway, there are no non-residential uses in the area.
37Mr. Ramsay is of the opinion that the MVs will facilitate an ad hoc change to the character of the neighbourhood. In his experience, medical office uses generate a significantly higher intensity for traffic and parking than other permitted home occupations.
38As it relates to the ZBL, Mr. Ramsay opined that medical offices are not included as a permitted use since they are generally characterized by a higher intensity of use with frequent patient appointment turnover. He went on by stating that “Medical Office – Restricted” uses require 60%-80% more parking than regular office under the ZBL parking policies. However, under cross examination, Mr. Ramsay agreed that due to the limited gross floor area that is proposed and limited number of doctors (1) the parking requirements (if considered “medical office – restricted”) would be 1.5 spaces.
39In regard to the test of the MVs being “minor”, Mr. Ramsay is of the opinion that the medical office will result in undue adverse impacts. It will generate higher parking demand, generate additional foot traffic to the rear/side entrance, create privacy concerns for neighbours, due to the additional foot traffic from both the clients and the additional employee. While under cross examination Mr. Ramsay agreed that if the front door of the dwelling was exclusively used, then it would address some of the privacy concerns.
40Lastly Mr. Ramsay address the test of “desirable”. It is the opinion of Mr. Ramsay that adding a new use and associated employee into a residential neighbourhood is not in keeping with the scale and intensity of development.
Analysis and Findings
41In rendering a decision, the Tribunal must take into account the evidence that was presented before it. The Tribunal must also give regard to the decision of the COA and the items presented before the COA, including public comments both written and oral.
42During the course of the hearing, which began on May 3, 2023, and continued on May 19, 2023, the Tribunal was presented with an excessive amount of evidence.
43For the reasons below, the Tribunal finds that the first variance, to permit “Medical Office – Restricted” as a home occupation use, meets the four tests under s. 45(1) of the Act, while the second variance, to permit the home occupation use to employ one staff who are not residents of the detached dwelling, does not.
Official Plan
44As it relates to the COP the Tribunal finds that both MVs meets the general intent and purpose. The Tribunal agrees with Ms. Matveeva’s interpretation of the COP being (1) that home occupations, (2) that accessory offices for physicians and health professionals are permitted in residential designations. Moreover, the Tribunal finds that the physical character of the neighbourhood would not be altered in any capacity in comparison to an as-of-right home occupation.
Zoning By-law
45In regard to the MVs the Tribunal will consider the MVs separately on the test of meeting the general intent and purpose of the ZBL. At first glance of the removal of s.4.1.17, which permitted the establishment of medical offices in residential areas, the Tribunal tends to agree with the City’s submission that both MVs do not meet the general intent and purpose of the ZBL.
[46] However, the Tribunal must take into consideration the following definitions from the ZBL: a. Home Occupation - means an occupation for profit or gain conducted entirely within a dwelling unit, that is incidental and secondary to the use of the dwelling unit for the residential purpose and does not change the residential character of the dwelling unit. b. Home Office – means an office for profit or gain conducted entirely within a dwelling unit, that is incidental and secondary to the use of the dwelling unit for residential purposes and does not change the residential character of the dwelling.
[47] Additionally, the Tribunal must look at the definition of “Office” (a permitted home occupancy) and “Medical Office – Restricted” in the ZBL: a. Office - Means a building, structure or part thereof, used for the practise of a profession, business or public administration that may include administrative and clerical functions. b. Medical Office – Restricted - Means a building, structure or part thereof, other than a hospital, used for consultation, examination or therapeutical treatment by a physician, dentist, drugless practitioner or health professional licenced by the Province of Ontario.
48The Tribunal finds that the inclusion of Medical Office – Restricted as a permitted home occupancy meets the general intent and purpose of the ZBL. The character of the dwelling is not being altered and is subject to the policies found in s.4.1.16 (home occupations) which are permitted as-of-right.
49Regarding the second MV, to permit the home occupation use to employ staff who are not residents of the detached dwelling, the Tribunal finds that is does not meet the intent and purpose of the ZBL.
50The Tribunal concurs with the evidence of the Neighbours that the addition of a non-resident employee is part of the commercialization of a residential area and is part of the clear intent of the removal of s. 4.1.17 of the ZBL. As noted above s.4.1.17 permitted an employee, whereas employees are not permitted in home occupations (s.4.1.16).
Desirable
51The Tribunal accepts the evidence of Ms. Matveeva that the inclusion of the Medical Office – Restricted is desirable for the lands. The Tribunal does note the testimony of Mr. Ramsay in regard to utilizing the front door for the home office to reduce the possibility of loss of privacy. Nevertheless, the side entrance and walkway can be used as of right and therefore the Tribunal does not see fit to include a possible condition to limit the use of the home occupation entrance.
52The Tribunal accepts the evidence of the Neighbours and City rather than that of the Applicant, that the MV for an employee is not desirable and will alter the use of the home occupation into a commercial use.
Minor
53Finally, the Tribunal accepts the evidence of Ms. Matveeva that the MV for Medical Office – Restricted is minor in nature, as the office will operate within the policies of a home occupation. However, as mentioned above the Tribunal finds the addition of a non-resident employee is not minor in nature and will alter the home occupation into a form of commercial establishment.
Order
[54] THE TRIBUNAL ORDERS that: a. the appeal is allowed in part and the variance to By-law 0225-2007 to permit a “Medical Office – Restricted” as a home occupation use be authorized subject to the following condition:
- the “Medical Office – restricted” use must otherwise comply with all provisions of the bylaw 0225-2007 that apply to “home occupation” uses. b. the appeal to permit the home occupation use to employ staff who are not residents of the detached dwelling is dismissed.
“Kurtis Smith”
Kurtis Smith 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.