Yu v. Oakville (Town), 2023 CanLII 69368

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 27, 2023

CASE NO(S).:

OLT-21-001786

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

Appellant

Tianxi Yu

Applicant

Angelina Nesci

Subject:

Minor Variance

Description:

To permit the construction of a two-storey detached dwelling on the subject property. The original dwelling will be replaced.

Reference Number:

A/121/2021-Revised

Property Address:

1182 Linbrook Road

Municipality/UT:

Oakville/Halton

OLT Case No:

OLT-21-001786

OLT Lead Case No:

OLT-21-001786

OLT Case Name:

Yu v. Oakville (Town)

Heard:

July 25, 2022 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel/Agent*

Angelina Nesci

Jennifer Meader

Tianxi Yu

Self-Represented

Town of Oakville

Dennis Perlin

DECISION DELIVERED BY S. MANN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Angelina Nesci (“Applicant”) owns the property known municipally as 1182 Linbrook Road (“subject property”). To facilitate the redevelopment of the subject property, the Applicant applied to the Town of Oakville for minor variances from Zoning By-Law No. 2014-014 (“ZBL”) in order to permit the construction of a two-storey detached dwelling with the original dwelling to be replaced. The Committee of Adjustment (“COA”) approved the request, subject to conditions.

2Tianxi Yu (“Appellant”), the Applicant’s next-door neighbour, appealed the COA decision to the Tribunal. The appeal was on the grounds that the proposed development and related variances did not meet the statutory requirements for minor variance, citing interference with the streetscape of the neighbourhood and impact of the proposed massing on natural light and privacy.

3The subject property is located generally south of Queen Elizabeth Way and east of Trafalgar Road in a part of Town referred to as South-East Oakville. The neighbourhood consists of dwellings that are a mix of original construction as well as newly constructed two-storey dwellings. Characteristics specific to the neighbourhood include large wide and deep lots with mature trees. The Appellant’s property is located directly adjacent to the east of the subject property.

4Within the Town of Oakville Official Plan (“OP”), the subject property is designated Low Density within a special policy area. The specific policy relating the property applies to protect unique character and integrity of the larger lots in the area.

5Under the ZBL, the subject property is zoned RL1-0, they are low density residential lands within a special policy area to protect the unique character of the neighbourhood as is outlined in the OP.

VARIANCES REQUESTED and decision of the COA

6The Applicant submitted their first application to the Town on June 24, 2021.

7The minor variances requested are as follows:

a) To permit a minimum (easterly) interior side yard of 3.19 metres (“m”), whereas 4.2 m is the minimum permitted.

b) To permit a maximum dwelling depth of 25.61 m, whereas 20.0 is the maximum permitted.

c) To permit a maximum residential floor area ratio for the detached dwelling to be 31.12%, whereas 29% is the maximum permitted.

8The application was approved by the COA, subject to the following conditions:

a) The approval expires two (2) years from the date of the issuance of this decision if a building permit has not been issued for the proposed construction.

b) That the dwelling be built in general accordance with the submitted elevation drawings dated September 3, 2021, and site plan to the satisfaction of the Director of Planning.

Parties and evidence

9The Appellant attended the hearing and was self-represented. A document book was submitted in support of the appeal, and the Appellant called no witnesses in support of his case.

10The Applicant attended the hearing together with her counsel, Jennifer Meader as well as David Brown, a land use planner qualified by the Tribunal.

11Counsel for the Town attended and notified the Tribunal that it would not participate in the hearing other than requesting that the COA’s conditions were included in the event of approval of the minor variances.

12There were no additional party or participant status requests.

13The following evidence was submitted to the Tribunal in relation to the matter:

1. Applicant’s Document Book;

2. Evidence Outline of David Brown;

3. Town of Oakville’s Conditions; and

4. Appellant’s Document Book.

PARTIes positionS and [Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

14When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act (“Act”), to determine if the requested variance:

a) Maintains the general intent and purpose of the Official Plan;

b) Maintains the general intent and purpose of the Zoning By-law;

c) Is desirable for the appropriate development or use of the land; and

d) Is minor in nature.

15All four elements must be satisfied.

16The Appellant argued that the proposed development did not meet the requirements for minor variance as outlined above due to the proposed variances. The ZBL requirements and the current plans did not respect or reinforce the prevailing physical character and streetscape of the neighbourhood. In addition, it interferes with streetscape and the open space/rear yard pattern of Linbrook Road. Due to the massing of the proposed development, there will be a restriction of natural light and will impact the privacy of neighbouring homes including the Appellant’s home.

17The Appellant provided Exhibit 4 as its sole evidence for this matter, which includes excerpts of the planning report by Town staff related to this matter as well as comments submitted by neighbourhood residents. The evidence provided was not persuasive as it provided no expert opinion or new evidence the Tribunal could rely on.

18In response, the Applicant presented evidence through Mr. Brown, a land use planner qualified to provide expert testimony to the Tribunal on how the proposed minor variances met the statutory requirement.

19The Tribunal reviewed the evidence of the Applicant, agrees with the contents in its entirety, and accordingly adopts its analysis and conclusions as part of this decision.

ANALYSIS

Maintains the general intent and purpose of the official plan

20As previously mentioned, the subject property is designated Low Density Residential with a special policy area overlay in relation to the larger lots of the neighborhood. The objectives of residential areas, according to the OP are to maintain, protect and enhance the character of the existing Residential Areas and to encourage an appropriate mix of housing types, densities, design and tenure throughout the Town.

21The OP further sets criteria again for which development within a stable residential community shall be evaluated to protect and maintain the existing neighbourhood character. This includes reviewing the built form of development, which comprises of scale, height and massing architectural character within the surrounding neighbourhood as well as the development being compatible with setbacks, orientation and separation distances within the surrounding neighbourhood.

22Compatibility is a key concern regarding this application. The OP defines the term to mean development or redevelopment of uses which may not necessarily be the same as, or similar to, the existing development, but can coexist with the surrounding area without unacceptable adverse impact.

23The Tribunal accepts the evidence of the Applicant regarding the proposed development maintaining the general intent of the OP as the design of the proposed new dwelling makes use of architectural design to ensure compatibility with the surrounding area, as further outlined below.

Maintains the general intent and purpose of the Zoning By-law

24The proposed development requires three minor variances related to side yard setback, dwelling depth and residential floor area ratio in connection with the subject property’s RL1-0 zoning.

25The proposed side yard setback of 3.19 m would actually represent an increase from the existing side yard setback of the existing structure on the subject property which is 2.0 m. The proposed setback would provide adequate access along the side yard, sufficient area to accommodate drainage requirements and provides for an appropriate separation from the structure on the adjacent property.

26Regarding the proposed dwelling depth variance, the intent of dwelling depth regulation is to regulate and control massing and scale to minimize the impact of a structure. The proposed development has adequately addressed massing concerns through the use of architectural elements including the use of a single storey element and preservation of existing trees and boundary line vegetation to reduce impact to neighbors.

27The proposed variance for residential floor area ratio requires consideration to ensure a proposed dwelling size does not appear larger than those in the surrounding area. Although the proposed development is wider than the existing dwelling, this is mitigated with the use of a one storey section as well as the off set of the attached side loading garage. The effect of these design choices is that the streetscape of the proposed development will be appropriate for the characteristic of the neighborhood.

28The Tribunal accepts the uncontroverted opinion of Mr. Brown, supported by the Town staff report indicating that the proposed variances maintain the general intent and purpose of the ZBL.

Is desirable for the appropriate development for use of the land

29The proposed development represents a replacement of an existing residential dwelling. The key consideration is to determine whether the proposed variances are desirable for the appropriate development or use of the land relate to the compatibility of the new dwelling with the neighborhood character.

30The neighbourhood consists of larger lots with a variety of housing types between original construction and larger new homes such as the one proposed by the Applicant. One such example is the Appellant’s property, located adjacent to the east consisting of a two storey newly constructed dwelling.

31As the proposed development will fit the characteristics of the neighbourhood and implements design to mitigate massing impact, the Tribunals findings are that the proposed development is appropriate development for the use of the land.

Is minor in nature

32The requested variances reduce side yard setback of the subject property, increase the dwelling depth as well as the residential floor area ratio, but based on the expert opinion of Mr. Brown, the variances sought do not cause an adverse impact.

33The proposed development implements architectural features that minimize the impact of the massing in the neighbourhood including use of a one storey level at the front with the second storey being limited to the rear.

34In relation to the Appellant’s property adjacent to the east, the use of an increased dwelling depth and the fact that the Appellant’s property flares away from the subject property at the rear, the design is such that it limits impacts of privacy. In addition, the Appellant’s site plan indicates preservation of mature trees and vegetation at the sides of the property, which will further reduce privacy concerns.

35The side yard setback proposed by the Appellant also represents an increase from the existing dwelling, thereby increasing the separation between properties, allowing for adequate access and increased privacy.

36It is the Tribunal’s conclusion that the proposed variances are minor in nature.

CONCLUSION

37The Tribunal finds that the proposed minor variances meet the requirements of the statutory test of s. 45(1). The proposed variances address concerns of the OP in regard to compatibility and do not present adverse impact. The three variances are in keeping with the intention of the ZBL using urban design to mitigate concerns. The proposed development as a result of the minor variances will lead to a desirable and appropriate use of the land and the impact of the larger dwelling will be minor in nature given the characteristics of the neighbourhood. Further, the proposed development is in keeping with the policy of Provincial Policy Statement 2020 as the subject property is located within a settlement area where growth and mix of land uses are desired as well as the Growth Plan for the Greater Horseshoe which addresses a diverse range of housing and densities.

ORDER

38THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to Zoning By-law No. 2014-014 of the Town of Oakville are authorized subject to the following conditions:

a) The approval expires two (2) years from the date of issuance of this decision if a building permit has not been issued for the proposed construction.

b) That the dwelling be built in general accordance with the submitted elevation drawings dated September 3, 2021 (Attachment 1) and site plan to the satisfaction of the Director of Planning.

“S. Mann”

S. MANN

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.

ATTACHMENT 1