Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 27, 2023
CASE NO(S).: OLT-23-000073
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Mandy Nwobu
Subject: Minor Variance
Description: To permit construction of an accessory dwelling with 2 parking spaces
Reference Number: P/CA 11/23
Property Address: 1843 Westcreek Drive
Municipality/UT: Pickering/Durham
OLT Case No.: OLT-23-000073
OLT Lead Case No.: OLT-23-000073
OLT Case Name: Nwobu v. Pickering (City)
Heard: May 23, 2023 by video hearing
APPEARANCES:
Parties
Mandy Nwobu
Counsel
D. Ibeawuchi J. Afolabi
MEMORANDUM OF ORAL DECISION DELIVERED BY S. DIXON ON May 23, 2023 AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
Background
1This Decision and Order arises from a hearing on the merits of an appeal filed by Mandy Nwobu (“Appellant”) pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”) in respect of minor variance application P/CA 11/23 (“Application”) in the City of Pickering (“City”) for the lands known municipally as 1843 Westcreek Drive (“Subject Lands”).
2The Subject Lands contain a two-storey townhouse dwelling with an existing accessory studio apartment located in the basement (“Accessory Dwelling”). The Accessory Dwelling was constructed without approval by the City and is not permitted by City Zoning By-law 3036, as amended by By-law 4366/93 (“ZBL”).
3The Appellant wishes to legalise the Accessory Dwelling and reduce the total number of required parking spaces on the Subject Lands.
4City Planning Staff recommended approval of the Application. The Committee of Adjustment (“COA”) refused the Application.
Requested Variances
5Two variances are before the Tribunal for consideration (“Requested Variances”):
To permit an accessory dwelling unit (“ADU”) in a townhouse, whereas the ZBL permits ADUs in a detached dwelling or semi-detached dwelling; and
To permit a total of two parking spaces on a property where an ADU is located, whereas the ZBL requires the provision of a total of three parking spaces on a property where an ADU is located.
Witnesses
6Prior to the commencement of the hearing, the Tribunal received communication from the City advising that they would not be filing any materials or making submissions at the hearing.
7The Appellant called Graig Uens, the Director of Planning at Batory Management, a consulting firm specialising in land use planning and development management services. Mr. Uens is a Registered Professional Planner with over 15 years of professional planning experience in both the public and private sectors.
8Mr. Uens was qualified by the Tribunal to provide independent expert opinion evidence on matters pertaining to land use planning.
SUBMISSIONS, ANALYSIS AND FINDINGS
Site and Area Context
9The Subject Lands front onto the east side of Westcreek Drive in a townhouse block located within the Highbush Neighbourhood, as delineated by the City Official Plan (“COP”). The Highbush Neighbourhood contains primarily single detached dwellings with a number of townhouse clusters and occasional semi-detached dwellings dispersed throughout.
10The block containing the Subject Lands is generally bounded by Westcreek Drive to the west, Pine Grove Avenue to the north, Altona Road to the east, and Tranquil Court to the south. The townhouse block containing the Subject Lands fronts onto both Westcreek Drive and Pine Grove Avenue. Four-storey stacked townhouses and a three-storey mixed use building with commercial uses at grade front onto Altona Road, while single detached dwellings front onto Tranquil Court.
11On the west side of Westcreek Drive, opposite the Subject Lands, a cluster of townhouses fronts onto a private crescent that begins and ends at Westcreek Drive. Single detached houses front both sides of Westcreek Drive to the north and south of the townhouses.
12Two Durham Region Transit bus routes run along Altona Road and Pine Grove Avenue and connect to both the Pickering GO Station and businesses along Kingston Road.
[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
13The Act requires the Tribunal to have regard to matters of provincial interest as set out in s. 2 of the Act. With the benefit of Mr. Uens’ oral and written testimony, the Tribunal has done so and finds that the Application has regard for matters of provincial interest, and in particular: s. 2(h) on the orderly development of safe and healthy communities; s. 2(j) on the adequate provision of a full range of housing; s. 2(n) on the resolution of planning conflicts involving public and private interests; s. 2(p) on the appropriate location of growth and development; s. 2(q) on the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; and s. 2(s) on the mitigation of greenhouse gas emissions and adaptation to a changing climate.
14Mr. Uens directed the Tribunal to s. 16(3) of the Act, which prohibits any official plan from containing policies that have the effect of prohibiting a total of three residential units in a detached house, semi-detached house, or rowhouse (i.e., townhouse) on a parcel of urban residential land.
15Section 16(3.1) of the Act states that, “No official plan may contain any policy that has the effect of requiring more than one parking space to be provided and maintained in connection with a residential unit referred to in subsection (3).”
16Section 16(3.3) of the Act states that, “A policy in an official plan is of no effect to the extent that it contravenes a restriction described in subsection (3), (3.1), or (3.2).”
17Sections 35.1(1), (1.1) and (1.3) of the Act apply similar provisions to those described in Paragraphs [14] to [16], above, to a zoning by-law passed under s. 34 of the Act.
18In Mr. Uens’ opinion, the Act is clear that ADUs are required to be permitted in townhouse dwellings, and the maximum number of parking spaces required for an ADU is one. The Tribunal agrees.
Provincial Policy Statement, 2020
19Mr. Uens directed the Tribunal to Policies 1.1.1 b), 1.1.3.2, 1.4.3 and 1.6.7.4 of the Provincial Policy Statement, 2020 (“PPS”).
20Policy 1.1.1 b) of the PPS states that healthy, liveable and safe communities are sustained by accommodating an appropriate range and mix of residential types, including additional residential units and multi-unit housing, to meet long-term needs.
21Policy 1.1.3.2 of the PPS states that land use patterns within settlement areas shall be based on densities and a mix of land uses which “efficiently use land and resources” and “are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion.”
22Policy 1.4.3 of the PPS requires planning authorities to provide for an appropriate range and mix of housing options and densities to meet projected needs of current and future residents.
23Policy 1.6.7.4 of the PPS promotes land use patterns, densities and a mix of uses that minimize the length and number of vehicle trips and support the current and future use of transit and active transportation.
24Mr. Uens opined that the Application responds to the policy objectives of the PPS by making efficient use of land and contributing to an appropriate range and mix of housing in an area that is proximate to existing transit.
25The Tribunal is satisfied that the Requested Variances are consistent with the PPS.
Growth Plan for the Greater Golden Horseshoe, 2020
26Mr. Uens directed the Tribunal to Section 1.2.1, Policy 2.2.1.4, and Policy 4.2.10 of the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).
27Section 1.2.1 contains guiding principles of the Growth Plan, including:
Support a range and mix of housing options, including additional residential units and affordable housing, to serve all sizes, incomes, and ages of households.
Provide for different approaches to manage growth that recognize the diversity of communities in the GGH.
Integrate climate change considerations into planning and managing growth such as planning for more resilient communities and infrastructure – that are adaptive to the impacts of a changing climate – and moving towards environmentally sustainable communities by incorporating approaches to reduce greenhouse gas emissions.
28Policy 2.2.1.4 of the Growth Plan states that the application of the policies of the Growth Plan will support the achievement of complete communities that, among other things, provide for a more compact built form and a diverse range and mix of housing options, including additional residential units, to accommodate the needs of all household sizes and incomes.
29Policy 4.2.10 of the Growth Plan directs municipalities to develop policies in their official plans to identify actions that will reduce greenhouse gas emissions, including the achievement of complete communities, reducing dependence on the automobile, and supporting existing and planned transit and active transportation.
30Mr. Uens opined that the Application responds to the policy objectives of the Growth Plan by utilizing the existing building envelope to accommodate an accessory dwelling unit, thereby contributing to a complete community with a range of housing options in a compact form. He further opined that the reduction in the total parking spaces and proximity to existing transit will reduce dependence on personal automobiles.
31The Tribunal is satisfied that the Requested Variances conform to the Growth Plan.
General Intent and Purpose of the Official Plan
Regional Municipality of Durham Official Plan
32The Subject Lands are designated “Living Areas” on Schedule A – Map A4 Regional Structure in the Regional Municipality of Durham Official Plan (“ROP”).
33Policy 8B.1.1 of the ROP states that Living Areas are communities that “shall be developed to incorporate the widest possible variety of housing types, sizes and tenure to provide living accommodations that address various socio-economic factors.”
34Mr. Uens opined that the Application contributes to the provision of a broad range of housing types, sizes and tenures by introducing a smaller rental unit into a community characterized primarily by single detached houses. He further opined that the Application is consistent with the general intent and purpose of the ROP.
35The Tribunal is satisfied that the Requested Variances maintain the general intent and purpose of the ROP.
City of Pickering Official Plan
36The Subject Lands are designated as a “Local Node” in a “Mixed Use Area” on Schedule 1 – Land Use Structure in the COP and are within the Highbush Neighbourhood of the South Pickering Urban Area as described in Chapter 12.
37Policy 3.6 of the COP states that Mixed Use Areas are intended to have the widest variety of uses and highest levels of activities in the City.
38Chapter 2 of the COP contains general policies for the City’s Urban System. Policy 2.7 states that the City shall: encourage a variety of uses in close proximity to one another through a well designed, compact urban form; make efficient use of infrastructure, land and services, and facilitate local social interactions between people; and increase the overall number and variety of housing opportunities and experiences within the urban area.
39Chapter 6 of the COP contains the City’s strategic housing policies. The City’s housing goal is established in Policy 6.1, which states the following:
6.1 City Council shall encourage a broad diversity of housing by form, location, size, tenure, and cost within the neighbourhoods and villages of the City, so that the housing needs of existing and future residents can be met as they evolve over time.
40Policy 6.5 requires that the City maximize the efficiency of existing infrastructure through additional residential units within the South Pickering Urban Area by encouraging, among other things: intensification in Mixed Use Areas; infill development of vacant or under-utilized blocks of land; and the provision of compact housing forms having regard for housing type, architectural design, and cost-effective development standards.
41Mr. Uens directed the Tribunal to Official Plan Amendment No. 40 (“OPA 40”), approved by City Council in September 2020, which contains policy amendments intended to inform the consideration of infill development. Specifically, Policy 3.9(f) of OPA 40 requires that infill development in Established Neighbourhood Precincts shall fit in, complement and be compatible with the character of the Established Neighbourhood Precinct with respect to a number of criteria, including:
(i) minimizing the impacts associated with privacy, overlook and shadowing on neighbouring properties and promoting development of a compatible scale as observed from neighbouring properties and the street;
(vi) maximizing the front yard landscaping to the greatest extent possible;
(vii) encouraging the preservation of existing mature trees to the greatest extent possible;
42Mr. Uens further directed the Tribunal to the Highbush Local Node Development Guidelines (“Guidelines”) appended to the COP. In his opinion, the Guidelines intend that the amount of surface parking between buildings and street edges should be minimized.
43Mr. Uens opined that the Application is consistent with the intent of the COP as it represents an efficient use of infrastructure, land, and services by adding an ADU within an existing townhouse dwelling while having no impact on the exterior characteristics of the building.
44Mr. Uens proffered that the requested parking variance will ensure that a greater area of the front yard can continue to support landscaping, including an existing tree. In his opinion, this is consistent with both the COP policy objectives of maximizing front yard landscaping and preserving existing trees, and the Guidelines’ objective of minimizing the amount of surface parking between buildings and the street edge.
45The Tribunal is satisfied that the Requested Variances maintain the general intent and purpose of the COP.
General Intent and Purpose of the Zoning By-law
46The Subject Lands are zoned “LCA-6” in the ZBL. The LCA-6 zone permits a range of uses, including “Multiple Dwellings – Horizontal”, meaning a building containing three or more dwelling units attached horizontally by an above grade wall or walls (e.g., townhouses), and “Multiple Dwellings – Vertical”. Single detached and semi-detached dwellings are not permitted in the LCA-6 zone.
47“Dwelling Units” are defined in the ZBL as “one or more habitable rooms occupied or capable of being occupied as a single, independent and separate housekeeping unit containing a separate kitchen and sanitary facilities.”
48In the City Planning Staff report filed with the Tribunal as part of the Document Book for this hearing (Exhibit 1), staff note that Section 5.32 of the ZBL permits an ADU in any zone that permits a detached dwelling or a semi-detached dwelling, provided that three parking spaces are provided on the property where an ADU is located (two parking spaces for the primary dwelling unit, and one parking space for the ADU).
49In Mr. Uens’ opinion, the exclusion of townhouses as a dwelling type where ADUs are permitted is presumably to prevent Multiple Dwellings from becoming denser than they were originally planned for. However, in his opinion, that is not consistent with the intent of the Act which explicitly permits up to three residential units in a rowhouse/townhouse. The ZBL requirement for three parking spaces where an ADU is located is also not consistent with the provisions of the Act requiring a maximum of one parking space per dwelling unit.
50Mr. Uens advised the Tribunal that City staff are currently undertaking a review of the ZBL to ensure it complies with the ADU requirements of the Act. He directed the Tribunal to a draft ZBL amendment (“ZBA”) prepared by City staff (Exhibit 3), which proposes to replace Section 5.32 of the ZBL with a new section that permits ADUs in single and semi-detached dwellings, block townhouses, and street townhouses.
51The proposed replacement Section 5.32 would also require that the provision of onsite parking for an ADU “shall not reduce the landscaped area in the corresponding yard below 30%.” The ZBA further proposes to require only one parking space per dwelling unit on a lot, including ADUs.
52Mr. Uens proffered that apart from the requested variances, the existing townhouse building complies with all setback, height, density, lot coverage, and other ZBL requirements. In his opinion, the Accessory Dwelling effectively creates a two-unit dwelling on the Subject Lands, which is fundamentally similar to a Multiple Dwelling permitted in the LCA-6 zone.
53In Mr. Uens’ opinion, the intent of the current parking requirements in the ZBL is to ensure adequate space for vehicle parking is provided related to their intended use. He proffered that in addition to being in close proximity to transit, the primary unit and Accessory Dwelling on the Subject Lands are currently both adequately serviced by two parking spaces instead of the required three.
54Mr. Uens further opined that if a third parking space were required on the Subject Lands, it would likely require additional variances from the ZBL in addition to the removal of the existing tree and landscaped spaces on the Subject Lands. He submitted that the intent of the ZBL is to provide greenspace on residential properties, particularly in the front yard. In his opinion, a third parking space on the Subject Lands would not meet the general intent of the ZBL.
55Based on the foregoing, it is Mr. Uens’ opinion that the Requested Variances maintain the general intent and purpose of the ZBL. The Tribunal agrees.
Minor in Nature
56Mr. Uens proffered that the Accessory Dwelling is accessed from an interior common space that does not require any impacts to the exterior of the building to facilitate separate accesses for each dwelling unit on the Subject Lands. In his opinion, there is no discernable difference between the townhouse on the Subject Lands and any other townhouse in the surrounding block. As such, there is nothing to suggest that the townhouse contains an ADU.
57Mr. Uens further proffered that the existing two parking spaces adequately accommodate the occupants of both units, and that the City’s current review of ADU permissions suggests that fewer parking spaces may be provided for properties in proximity to transit.
58In Mr. Uens’ opinion, the Requested Variances are minor in nature. The Tribunal agrees.
Desirable for the Appropriate Development or Use of the Land, Building or Structure
59Mr. Uens proffered that the Accessory Dwelling establishes an additional rental unit in an area comprised primarily of detached ownership housing, thereby increasing the supply and type of housing in the area, contributing to a greater variety of housing options, and establishing a more complete community.
60With respect to the requested parking variance, Mr. Uens opined that maintaining two parking spaces on the Subject Lands ensures that the site can retain an appropriate amount of front yard landscaping – a condition that has been removed from many of the neighbouring properties. In his opinion, limiting the paving of the front yard is desirable.
61The Tribunal is satisfied that the Requested Variances are desirable for the appropriate use of the land, building and structure.
Summary
62The Tribunal accepts the uncontroverted expert opinion evidence of Mr. Uens that the Requested Variances maintain the general intent and purpose of the ROP, COP and ZBL, are minor in nature, and are desirable for the appropriate development and use of the Subject Lands. The Tribunal is satisfied that the Requested Variances have regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, conform to the Growth Plan, represent good planning and are in the public interest.
63The Tribunal has considered the COA decision to refuse the Application, the submissions made at the COA, and the oral and written evidence before the Tribunal in this hearing. Taken together, the Tribunal is satisfied that it has had regard for the decision of the approval authority, as required by s. 2.1 of the Act.
ORDER
64THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law 3036, as amended, listed in Paragraph [5] of this Decision, are authorized.
“S. Dixon”
S. dixon
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.