Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 20, 2023

CASE NO(S).: OLT-23-000001

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

Applicant and Appellant: Pallene Holdings Inc.

Subject: Minor Variance

Description: To construct a two-storey detached dwelling and cabana

Reference Number: A/208/2022

Property Address: 309 Balsam Drive

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-23-000001

OLT Lead Case No.: OLT-23-000001

OLT Case Name: Pallene Holdings Inc. v. Oakville (Town)

Heard: June 13, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Pallene Holdings	Denise Baker
Town of Oakville	Dennis Perlin, Klaudia Grabkowska (Articling Student)
Teresa Cascioli	Calvin Lantz

DECISION DELIVERED BY GREGORY J. INGRAM AND P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Pallene Holdings (the “Applicant/Appellant”) under s. 45 (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (“Act”) against a decision of the Town of Oakville (“Town”) Committee of Adjustment (“COA”) that refused an Application for Minor Variance (“Application”). The Application affects the land known as 309 Balsam Drive (“Subject Property”).

2The Appellant proposes to build a single detached two-storey dwelling (“the Proposal”). To facilitate the Proposal, the Applicant/Appellant filed an Application for Minor Variance (“MV”) to permit five variances from Zoning By-Law 2014-014 as amended (“ZBL”), listed below:

a. To permit a maximum of three attached, private garages attached to the dwelling whereas one is permitted.

b. To permit an attached private garage to project not more than 11.13 metres (“m”) from the face of the longest portion of the main wall containing residential floor area that is on the first storey of the dwelling oriented toward the front lot line whereas 1.5 m is permitted.

c. To permit a maximum dwelling depth of 42.72 m whereas 20 m is permitted.

d. To permit a minimum of 23.5% (8.09 m) of the length of all main walls oriented toward the front lot line to be located within the area on the lot defined by the minimum and maximum front yards whereas 50% is permitted.

e. To permit a maximum dwelling height of 10.95 m whereas 9 m is required.

3The Application was first brought to the COA in June 2021 but was deferred by the applicant due to a lack of support for some variances by Town of Oakville Planning Staff. The revised application was considered by the COA at its meeting on December 13, 2022. The Staff Report (Exhibit 1, Tab 16) recommended approval and indicated that the Applicant had eliminated “the variances for which Staff was unsupportive and prepared a new design which addresses the concerns of the earlier application and eliminates any negative impact on the surrounding properties.” The COA refused the Application.

4Mr. Perlin, Counsel for the Town, attended and advised that the Town is not taking a position with respect to the Appeals. Mr. Perlin explained that his attendance at the hearing is to request that, should the Tribunal allow the Appeal and approve the Application, that the Tribunal include in its Order the conditions recommended in the Staff Report and an additional condition provided by the Town prior to this hearing. Mr. Perlin provided an alternative condition in his closing comments for consideration by the Tribunal.

5For the reasons set out below, the Tribunal allows the Appeal and authorizes the MV subject to the conditions provided by the Town of Oakville in their closing submission.

REQUESTS FOR STATUS

6Prior to the hearing, the Tribunal received a request for Party Status from Teresa Cascioli, the owner of the property at 291 Balsam Drive, which is located to the south of and directly abutting the Subject Property. The Tribunal reviewed the request and granted Ms. Cascioli Party Status at the beginning of the hearing as per Tribunal Rules 8.1 and 8.2.

7The Tribunal granted participant status to the following individuals who own property near the Subject Property:

• Susan and Michael Chisholm
• Samantha Cheung and Laurence Chau
• William and Eleanor Cornelissen
• Arun Kochhar

LEGISLATIVE FRAMEWORK

8When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act. Section 2.1(1) of the Act requires that the Tribunal shall have regard to any decision made by an approval authority that relates to the same planning matter and any information and material that the approval authority considered in making its decision. The Tribunal interprets the approval authority to be the COA in this matter. Section 3 (5) of the Act requires that the decision of the Tribunal shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

9The Tribunal, when considering an appeal of an Application for MV, must be satisfied that the requested variances meet the four tests as set out in s. 45 (1) of the Act, namely:

a. Does the Application request maintain the general intent and purpose of the official plan?

b. Does the Application request maintain the general intent and purpose of the zoning by-law?

c. Is the requested variance minor in nature?

d. Is the Application request desirable for the appropriate development or use of the land, building or structure?

10In consideration of the above statutory requirements, the Tribunal must also be satisfied that the Proposal represents good planning and is in the public interest.

WITNESSES

11The Town indicated that they would not be calling witnesses. The Applicant/Appellant and Counsel for Ms. Cascioli indicated that they each have witnesses in the areas of urban design and land use planning.

12Counsel for the Applicant/Appellant asked the Tribunal to qualify William Hicks as an expert in urban design. The Tribunal reviewed Mr. Hicks’ credentials, professional experience, Acknowledgement of Expert Duties and considered comments and concerns raised by Mr. Lantz. Mr. Hicks is the principal of an architectural firm that specializes in the design and development of custom homes in the Greater Toronto Area with the majority of his work occurring in Oakville. He is a Registered Professional Architect in the Ontario, a member of the Ontario Association of Architects and a member of the Royal Architectural Society of Canada. He has been qualified by the Tribunal and Ontario Municipal Board in the past in the fields of architecture and urban design.

13Mr. Lantz expressed concern with Mr. Hicks being qualified as an expert witness in urban design as his professional designation is as an architect. He also questioned Mr. Hicks’ ability to be fair and objective, as required by the Acknowledgement of Expert Duties form, given his employment as the architectural designer for the Proposal and confirmation that the design work has not be finalized. Following this exchange, Mr. Lantz indicated that he could support Mr. Hicks being qualified as a witness. Counsel for the Town had no objection to Mr. Hicks being qualified.

14The Tribunal qualified Mr. Hicks as an expert witness in urban design as per his credentials and experience noted above and specifically, in the residential area of the Subject Property.

15The Tribunal qualified Anne McIlroy as an expert witness in urban design on behalf of Ms. Cascioli. Ms. McIlroy is a Registered Professional Planner, a member of the Canadian Institute of Planners and a Fellow of the Royal Architectural Institute of Canada. She has had over 30 years of experience in this field. All Parties consented to her being qualified as a witness.

16The Tribunal qualified Paul Demczuk as an expert witness in land use planning on behalf of the Applicant/Appellant. Mr. Demczuk is a Registered Professional Planner and a Member of the Canadian Institute of Planners. All Parties consented to Mr. Demczuk being qualified as a witness.

17The Tribunal qualified Franco Romano as an expert witness in land use planning on behalf of Ms. Cascioli. He is a Registered Professional Planner, a member of the Ontario Professional Planners Institute and the Canadian Institute of Planners. All Parties consented to Mr. Romano being qualified as a witness.

EVIDENCE AND SUBMISSIONS

Subject Property and Planning Context

18Information provided by Mr. Demczak, Mr. Romano and the Staff Report provided an overview of the Subject Property. The Subject property is located in an established neighbourhood of southeast Oakville, which is comprised of one and two storey detached residential buildings that reflect a wide variety of architectural styles, and it is situated on the east side Balsam Drive. More broadly, it is generally north of Lakeshore Road East, east of Trafalgar Road, south of MacDonald Road and west of Post Park (pg. 307, Exhibit 1). The immediate neighbourhood is characterized by dwellings on large lots with mature trees and vegetation.

19Lots on the east side of Balsam Drive are described as much larger in area and depth than lots on the west side of Balsam Drive. Dwellings on the east side of Balsam Drive, near the Subject Property, are generally set further back on the property when compared to properties on the west side. Currently, there is a two-storey detached dwelling situated on the front portion of the lot, a single storey shed, pool, and tennis court adjacent to the south and east lot lines on the Subject Property.

20The Subject Property has a generous amount of open space and is generally rectangular in shape. The lot has frontage of 47.46 m along Balsam Drive and a rear lot line of 47.42 m. The north side lot line is 99.50 m abutting 319 Balsam Drive and the south side lot line is 99 m and abuts 291 Balsam Drive. The total lot area is 4676 square metres (“m²”). Detailed Site drawings are found in Tab 14 of Exhibit 1.

21Mr. Demczuk indicated that the Subject Site is designated ‘Urban Area’ by the Region of Halton Official Plan (“HOP”) and is within the ‘Residential Areas’ and ‘Low Density Residential’ land use designation as shown in Schedule G – South East Land Use of the Livable Oakville Official Plan (“TOP”). It is also subject to the Special Policy Area overlay.

Design Aspects of the Proposal

22Mr. Hicks provided an overview of the overall design of the proposal on the Subject Site. He referred to building height, placement, alignment with street character, compatibility, and overall use of the land to also accommodate non-living spaces.

23Mr. Hicks indicated that in order to make the two-storey home look and feel like a one- and one-half storey home, lower roof lines and dormers are proposed. He suggested that this helps to reduce the scale of the house when viewed from the street or neighbouring properties.

24Mr. Hicks noted that the proposed dwelling will cover 23% of the Subject Site and it is his opinion that it has been located and designed to meet or exceed all required building setbacks. He also opined that the front yard setback reflects that of adjacent properties and has a side and rear yard setback that aligns with the ZBL. He suggested that the dwelling placement will retain numerous existing trees both on the Subject Site and properties to the north and south.

25Mr. Hicks offered that the materials, roofline, and proportions of the proposed dwelling have been selected to be compatible with the local context and the “varied character of the buildings in the immediate neighbourhood” (Exhibit 1, p. 36).

26Mr. Hicks said that, while the porte cochere is considered in the ZBL to be a garage, it will not be used for the storage of vehicles but merely as a drop-of and pick-up area. He indicated that the two other garage spaces will not be visible from the street and in fact appear to be extensions of the main part of the dwelling.

27Mr. Hicks indicated that the house design allows the two storey portions to fall within the permitted 60 m depth, with the exception of the porte cochere.

Minor Variance Request

28Mr. Demczak reviewed the relief being requested in the Application for minor variance and indicated that the five variances being sought are required to facilitate the proposal. The variances requested relate to the maximum number of garages, garage projection, dwelling depth, main wall length and dwelling height.

29Specifically, the ZBL permits one attached private garage per dwelling and three have been requested. It also requires attached private garages to not project more than 1.5 m from the main wall containing residential floor area and the Applicant/Appellant has requested an increase to not more than 11.13 m. A maximum dwelling depth of 20 m is required by the ZBL whereas 42.72 m is requested. The ZBL requires that a minimum of 50% (17.24 m) of the length of all main walls oriented toward the front lot line shall be located within the area on the lot defined by the minimum and maximum front yards. The Applicant/Appellant has requested a minimum of 23.5% of the total. Finally, the ZBL requires a maximum dwelling height of 9 m and 10.95 m has been requested.

30There was general consensus among the expert witnesses that this proposal is consistent with the PPS, conforms with the Growth Plan and has regard for and generally satisfies areas of provincial interest in Section 2 of the Act.

31In particular, Mr. Demczuk referred to sections 1.1.1.e, 1.1.3.1, and 1.1.3.3 of the PPS and proffered that the development represents a compatible form of redevelopment which fulfills the objectives of the sections noted here. In addition, he opined that it conforms to the Growth Plan and in particular sections 1.2.1, 2.2.1, 2.2.2.3, and Section 2, a through d, of the Act. It was his opinion that there is sufficient regard for matters of Provincial interest.

32Mr. Romano opined that the minor variances before the Tribunal have no implications on consistency with the PPS or Growth Plan. He also contended that Section 2 of the Act is “too high a level of generality” to have implications for the proposed development.

33The main issue in this case is whether the proposed variances meet the four tests under s. 45(1) of the Act.

Does the request maintain the general intent and purpose of the Official Plan?

34In consideration of the Region of Halton Official Plan (“ROP”), Mr. Demczak reviewed the ROP and identified applicable policies relevant to the Proposal. The Subject Property is designated Urban Area on Map 1h – Regional Urban Structure of the ROP. Policy 72 sets out the objectives of the Urban Area designation and Mr. Demczak directed the Tribunal to Policies 72(1) and 72(3) which address accommodating growth and creating complete communities.

35Mr. Demczak opined that the Proposal conforms to the ROP and in respect to the tests of a minor variance, Mr. Demczak opined that the requests, individually and collectively, maintain the general intent and purpose of the ROP.

36Mr. Romano indicated that the ROP guidance is at too high a level to have implications for this Application.

37In consideration of the TOP, witnesses generally focused the Tribunal on building design, character, compatibility, neighbourhood and their alignment with the general intent of the TOP.

38Mr. Demczak indicated that the Subject Property is within the “Low Density Residential” land use designation, as shown on Schedule G – South East Land Use and is subject to the Residential Low Density Lands (RL1 / RL1-0 Zones) policy overlay. Section 2.2.1 of the TOP includes Guiding Principles that detail preserving and creating a livable community to preserve, enhance and protect the distinct character and cultural heritage of neighbourhoods. The Principles in Section 2.2.2 details the objective of providing choice throughout the Town to enable the availability and accessibility of a wide range of housing.

39Section 11 of the TOP includes policies for development within all Residential Areas, which include:

a) maintain, protect and enhance the character of existing Residential Areas;

b) encourage an appropriate mix of housing types, densities, designs, and tenure throughout the Town;

c) promote housing initiatives to facilitate revitalization, compact urban form, and an increased variety of housing alternatives; and

e) encourage the conservation and rehabilitation of older housing in order to maintain the stability and character of the existing stable residential communities.

40Mr. Demczak proffered that the TOP generally considers Residential Areas as being stable and Section 11.1.9 establishes criteria against which development within stable neighborhoods is to be evaluated. He directed the Tribunal to the following criteria:

a) The built form of development, including scale, height, massing, architectural character and materials, is to be compatible with the surrounding neighbourhood;

b) Development should be compatible with setbacks, orientation, and separation distances within the surrounding neighbourhood; and

h) Impact on the adjacent properties shall be minimized in relation to grading, drainage, location of service areas, access and circulation, privacy, and microclimatic conditions such as shadowing.

41Mr. Demczak referred to Section 26.2. This section indicates that lot densities are not to exceed 10 units per hectare. He opined that the proposal conforms with this Section given that no new dwelling units are proposed. He also indicated that the Subject Property has a number of mature trees that will not be impacted by the placement of the dwelling on the site.

42Mr. Demczak opined that the definition for character is relevant to this proposal. He directed the Tribunal to the TOP definition of character as, “the collective qualities and characteristics that distinguish a particular area or neighbourhood.” He noted that the proposal replaces a detached home with a home in the character that exists in the area and is consistent with the surrounding context.

43In consideration of the TOP, Mr. Demczak opined that the Proposal will create a built form that is compatible with the character and scale of dwellings in the area and the prevailing low-rise residential context. He contends that the proposed dwelling represents appropriate, incremental change and is consistent with the surrounding context.

44Mr. Demczak further opined that the proposed dwelling would be appropriately sited on the lot, such that it will maintain compatibility with the adjacent residences in terms of setbacks and dwelling placement. It is his opinion that an appropriate streetscape will also be maintained given the various building indentations, proportions, and heights. He suggests that the proposed side yard setbacks will limit any overlook and privacy issues while providing space for landscaping, rear yard access and building maintenance.

45Mr. Romano opined that the Proposal does not meet the general intent and purpose of the TOP. He proffered that the Proposal does not protect the neighbourhood structure and character in the way in which it impacts the large lot. It is his contention that the proposed dwelling interrupts the existing and planned rhythm of development and represents incompatible development.

46Ms. McIlroy opined that the proposed development does not comply with the TOP and referred to various parts of Section 6, Section 11.1.4 and 11.1.9 to support her position. She proffered that it does not protect nor enhance the character of the neighbourhood.

Town Design Guidelines for Stable Residential Communities (“Design Guidelines”)

47In consideration of the Design Guidelines, Mr. Hicks indicated that they are intended to be used as a tool in the implementation of the urban design and residential policies of the TOP and he proceeded to identify key sections and how the proposal aligned with each.

48Mr. Hicks directed the Tribunal to Section 3 as it relates to compatibility, neighbourhood patterns and recurring characteristics, scale, transitions between new and existing dwellings and dwelling size.

49He indicated that Section 3.1.5 of the Design Guidelines refers to design and placement impact on the rear yard of adjacent properties and felt that Section 3.2 was also important in its reference to new development reflecting any architectural style and still maintaining compatibility with the character of the surrounding neighbourhood. Specifically, he referred to the recommendations related to a development that is larger in size than adjacent dwellings. The elements and forms include the following:

1. New development, which projects beyond the established rear setback of adjacent dwellings, should be designed such that the height and massing of the projection does not cast significant shadows onto amenity space in the rear yards of adjacent properties.

2. New development, which projects beyond the established rear setback of adjacent dwellings, should be designed so that the placement of doors, decks and balconies do not directly overlook adjacent rear and side yards.

3. New development should not include second storey decks and balconies, which may create an undesirable overlook condition onto adjacent properties.

4. New development is encouraged to incorporate appropriate fencing, screening, landscaping and other mitigative design measures that can assist in maintaining the privacy of adjacent dwellings and rear yards.

50Mr. Hicks referred to Section 3.2.2 (building height), Section 3.2.3 (lot orientation), Section 3.2.4 (entrance), Section 3.2.5 (windows), Section 3.2.6 (garages) and Section 3.3.1 (landscaping).

51Mr. Hicks opined that the proposal has been designed to respond to the Design Guidelines noted above and provided the following design elements as examples of alignment:

a. Lot placement is compatible with adjacent residences while maintaining the character of the area.

b. Built form includes smaller elements and forms to reflect the scale and character of dwellings in the surrounding area by providing varied roof heights and indentations.

c. The dwelling is compatible but not the same as it is similar in siting and scale while also having some architectural elements that are found in the area.

d. Massing of the dwelling is broken up through building elements such as varying rooflines, stepback, architectural character and proportions that are in context with the neighbourhood.

e. Impact on neighbouring properties was considered with respect to shadowing, exterior doors, decks and balcony placement and no primary windows on the south side of the building. Maximum height of the building has been moved to the centre of the lot, with single storey height at the perimeter of the building.

f. Garages are incorporated within the dwelling to minimize visual effects from the street. The north garage faces the side lot line and the south garage is hidden using similar architectural design to the main building. The porte cochere is at the front of the dwelling and is not evident from the street and will not be used as a garage.

52Mr. Hicks supported this opinion through the use of visual representations and verbal analysis specific to the proposed design elements and the dwelling’s placement on the Subject Property.

53Ms. McIlroy opined that the Subject Property does not respect the Design Guidelines and in particular the components of Section 3, related to character, lotting pattern, scale, rear yard privacy, massing, height, setbacks, primary façade, garages and accessory structures, and landscaping and tree preservation. Specifically, she referred to the following:

a. The design and placement are not compatible with the existing and planned neighbourhood.

b. The design represents overdevelopment and is incompatible with the neighbourhood.

c. The dwelling depth is significantly greater than the range of dwelling depths on Balsam Drive.

d. The proposed foundation appears to encroach into the existing Tree Protection Zone.

e. The number of garages and potential number of vehicles will impact the appearance of the property from the street and from adjacent properties as well as increase traffic flow.

Does the request maintain the general intent and purpose of the ZBL?

54Mr. Demczak indicated that the Subject Property is zoned RL1-0 – Residential Low Zone. He proffered that the variances requested are consistent with the general intent and purpose of the ZBL. He indicated that the Town of Oakville supported the variances requested and that he supports the conditions suggested in the Staff Report (Exhibit 1, pg. 215).

55Mr. Demczak explained that the intent of the maximum number of garages and projection provisions are to mitigate the impact of the garages on the streetscape and to prevent the garages from being a visually dominant feature of the dwelling. He contends that the proposal supports this intent, as the garages at the north and south ends appear to be extensions of the dwelling and are over 34 m from the front of the property. It is his opinion that while, the covered drop-off / pick-up feature (porte cochere), with a setback of just over 29 m, is defined in the ZBL as a garage, it will not serve as a typical garage and the design does not negatively impact the streetscape.

56In consideration of the garage projection variance, Mr. Demczak contends that, while the porte cochere extends beyond the ZBL requirements, it does not impact the massing nor provide a dominate garage feature on the property due to its design.

57In consideration of dwelling depth, Mr. Demczak opined that the general intent of the ZBL is to ensure a reasonable degree of consistency in the surrounding area and to ensure that adverse impacts on amount of light, view and privacy do not occur. He suggested that the impact of building depth is also relative to lot size, side yard setbacks, building height and landscaping. The relief being sought in respect to dwelling depth, he opined, is mitigated by the large lot size, greater than required side yard setbacks, building height that is consistent with or less than area dwellings and some buffering by mature trees. It is his opinion that there will be no negative impact with respect to light, view and privacy as a result of the dwelling depth request.

58Mr. Demczak indicated that the portions of the dwelling depth that exceed the ZBL are located in the north and south areas of the dwelling. He also indicated that any windows facing the adjacent property to the south are not from primary living areas and suggested that the single storey design along the side yard mitigates any concerns. Regarding the dwelling to the north, he opined that the depth does not impact this property and is in fact compatible with this property.

59Mr. Hicks opined that the increased depth has no negative impact on the neighbouring properties, is not visible from the street and most of the dwelling is single storey which would reduce any overshadowing issues. He believes that the house siting reinforces the rhythm of the street in terms of front yard setback and rear yard amenity space.

60In consideration of main wall length, Mr. Demczak opined that this provision is to generally ensure that dwellings are provided with an alignment across the dwelling front façade. While the porte cochere projects in front of the main wall, the main part of the dwelling is setback in excess of the required front yard setback and generally aligns with the adjacent dwellings and detached garages. It is his opinion that the design features of the dwelling mitigate any negative impact on adjacent properties.

61Mr. Hicks opined that the varied depth of the front wall improves the visual and spatial characteristics of the house.

62In consideration of building height, Mr. Demczak proffered that the intent of this criteria is to limit the potential for impacts related to overlook, shadow, and loss of sky view on adjacent properties and to maintain consistency in the areas of physical character. Mr. Demczak opined that, with the increased height restricted to the centre of the dwelling, the significant setback from the adjacent properties mitigates any negative impact on adjacent properties. He suggested that the single storey side wings to the dwelling, varied roof lines and building proportions all break up the potential for massing.

63Mr. Romano opined that the general intent of the ZBL is to achieve a low density form of development that is compatible in scale and placement with adjacent properties. Mr. Romano proffered that the proposed variances do not maintain the overall general intent and purpose of the ZBL.

64In consideration of the variances related to the garages, Mr. Romano opined that the garages are primary features and not accessory due to their dominant features and that in some instances, occupy space that is intended as primary living space. He also believes that the size of each garage space contributes to their primary status. In addition, he believes that the prominence of the garages is at the expense of achieving living areas with views into the front yard and the public realm. The prominence of the garages results in the primary dwelling being placed further into the Subject Property than is desirable.

65In consideration of dwelling depth, Mr. Romano opined that the depth is well beyond the pattern of development along Balsam Drive. He indicted that one-half of the dwelling depth extends beyond the rear wall of the dwelling to the south, but is forward and beside the dwelling to the north.

66In consideration of main wall length, Mr. Romano opined that the focus on parking- related features pushes the proposed dwelling further into the Subject Property which does not align with the pattern of the street. It is his opinion that the impact of the variances related to main wall length and dwelling depth be considered together as the combined impact exceeds the allowable amounts by more than double.

67In consideration of the building height, Mr. Romano indicated that most of the dwelling is within the maximum height permitted, while the rest is fairly consistent at 8.6 m in height. He opined that the building height exaggerates the mass and scale of the dwelling in a manner that is contrary to the intent and purpose of the ZBL.

Is the variance minor in nature?

68Mr. Demczak proffered that the test, of whether a variance is minor, is one of impact and not simply a mathematical calculation. Mr. Demczak opined that the relief being sought by each variance individually and as a group are minor in nature. He opined that while the proposed building depth exceeds the ZBL requirement, the design features, building siting, and depth of the lot all minimize the impact of this request. He also suggested that the proposed built form minimizes massing impacts. He suggested that dwelling depth variances previously approved for the surrounding neighbourhood range from 21.98 m to 48 m and it is his contention that depth does not impact the character element of the area. He also referenced the proposal of extensive tree planting and landscaping to further reduce any impact to the streetscape. It is his opinion that the use of high-quality architectural materials and a varied roofline assists the dwelling in fitting with the immediate character of the neighbourhood.

69With respect to the proposed garages, he proffered that they are designed and situated to not dominate the streetscape, as their function is generally hidden and they appear as extensions of the dwelling. He also indicated that there are several dwellings in the immediate neighbourhood with garages that are an extension from their dwellings in the front yards and are a prominent and consistent characteristic of dwellings on large lots.

70Mr. Romano opined that the proposed development is not minor in nature and represents overdevelopment particularly when compared to other properties on Balsam Drive. He believes that it will have a negative impact on 291 Balsam Drive in particular, given the proposed depth of the dwelling and mass.

Is the request desirable for the appropriate development or use of the land, building or structure?

71The final test of a minor variance is whether the variances are desirable for the appropriate development or use of the subject lands. Mr. Demczak opined that the Proposal and the variances requested comply with the ZBL to allow the construction of a dwelling in all but a few areas. He proffers that the proposed dwelling is compatible with and reflects the built form of other dwellings in the area. It is his opinion that, through the design, building materials and lot placement, any concerns with height, depth and number of garages is mitigated, which results in a dwelling that is an appropriate use of the land and desirable for the area.

72Mr. Hicks opined that the gross floor area of the home is less than what is permitted in the ZBL and indicated that through lower roof lines and other design techniques, the dwelling fits with the character of the neighbourhood.

73Mr. Romano proffered that the proposed development is not in the public interest. He contends that it does not reinforce the existing and planned physical character attributes unique to the neighbourhood and suggests that it would be an “outlier” at the expense of neighbourhood character and specifically in relation to the large lots in the area.

ANALYSIS AND FINDINGS

74The Tribunal has considered and accepted the evidence and submissions of Mr. Hicks and Mr. Demczak in support of the Proposal.

75In consideration of s. 2 of the Act, the Tribunal finds that the Proposal has had appropriate regard for the matters of provincial interest, is consistent with the PPS and is satisfied that the Proposal conforms with the policies of the Growth Plan.

76The Tribunal notes that, notwithstanding the decision of the COA, Counsel for the Town attended and took no position in respect of the appeal but did request during the hearing and in their closing submission that the Tribunal attach the conditions provided by the Town if the Appeal is approved. The Staff Report provided to the COA outlined their support of the Application subject to certain standard requirements for new development. The Staff Report also indicated that Regional Staff had no objections to the variances requested.

77The Tribunal finds the Staff explanation of the intent of the ZBL and their rationale for supporting each variance compelling. Overall, Staff indicated that the minor variances will not negatively impact the neighbourhood or adjacent properties, meet the intent of the ZBL and are minor in nature. Their analysis generally aligned with the evidence provided by the Applicant/Appellant.

78In consideration of the tests of a minor variance, the Tribunal finds the planning and architectural approach of the Applicant/Appellant, in consultation with Town Staff, significant in supporting this application. The Proposal supports the construction of a dwelling that is compatible with the character of the neighbourhood and respects the Design Guidelines.

79The Tribunal finds that the request maintains the general intent and purpose of the ZBL as the relief sought with respect to height, depth, number of garages, garage projection and wall proportionality are reasonable given the varied dwelling designs and lot placements used for comparison in the area and the effort made through architectural design to enhance the structure and minimize any negative impact.

80The Tribunal finds that the request is desirable for the appropriate development of the subject land and is compatible with the near and broader neighbourhood. Compatibility is important in the Tribunal’s consideration and analysis of the Official Plan policy. The first point of departure is to determine exactly what compatibility indeed is, as the Tribunal hears evidence that new development must be compatible with the existing development. The Tribunal looks to Motisi v. Bernardi, 1987 CarswellOnt 3719, (1987) O.M.B.D. No. 2, 20 O.M.B.R. 129 for some direction.

Being compatible with [within the meaning of s. 44(2) (a)(ii) of the Planning Act, 1983, S.O. 1983, c. 1] is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being Compatible with implies nothing more than being capable of existing together in harmony.

81The Tribunal is satisfied that the request is minor in nature and will create no adverse impacts. The Tribunal is not convinced that new issues of privacy will result from this proposal, given the existing uses on the Subject Property external to the main dwelling and the design of the proposed dwelling with respect to window placement and the creation of a social space between the two rear wings of the property.

82The Tribunal respects the importance of protecting the existing vegetation on the Subject Property and adjacent property to the south. The Tribunal is satisfied that, through the conditions recommended by the Town, this concern can be addressed.

83The Tribunal is satisfied that the issues raised by the Participants were appropriately addressed by Mr. Demczak and Mr. Hicks. In addition, the Tribunal is satisfied that standard municipal processes that occur during development will further address any issues related to the development and specifically to drainage and storm water management.

84When it comes to privacy, the Tribunal notes that in Hany v Toronto (City), 2018 CanLII 78775 (ON LPAT), at para. 58, Vice-Chair Schiller found: “the requirement set out in the OP is for adequate privacy. The OP standard of “adequate privacy” does not mean that there is a requirement for “no overlook”.”

85Given that the subject property is located within an urban area, there will be some overlook. The Tribunal finds that the degree of overlook from the proposed development will be minor and will result in adequate privacy to the surrounding properties.

86In consideration of the above, the Tribunal is satisfied that the Proposal represents good planning, is in the public interest and it should be approved subject to the expectations and conditions identified in the Staff Report and presented by Counsel during the hearing.

ORDER

87THE TRIBUNAL ORDERS that the appeal filed pursuant to s. 45(12) of the the Planning Act, R.S.O. 1990, c. P.13, as amended, is allowed and the variances to By-law 2014-014 are authorized subject to the following conditions:

1. That the dwelling be built in general accordance with the submitted site plan, floor plans and elevation drawings dated October 25, 2022.

2. That the approval expire in two years from the date of this decision if a building permit has not been issued for the proposed construction.

3. That the Owner provide a detailed landscape/screening plan along the property line adjacent to 291 Balsam Drive, to the satisfaction of the Director of Planning, in consultation with the landscape architectural and arborist resources of the Town, and in any final approval the Director shall identify those resources and state that they agree with the approved plan(s).

“Gregory J. Ingram”

GREGORY J. INGRAM

MEMBER

“P. Tomilin”

P. TOMILIN

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.