Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 15, 2023

CASE NO(S).: OLT-22-004614

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

Applicant and Appellant: Christine Boyce Subject: Minor Variance Description: To permit a third-storey addition to an existing townhouse, and interior side yard setbacks of 0.6m Property Address: 734A Krosno Boulevard Municipality/UT: Pickering/Durham Municipal File No.: P/CA 117/22 OLT Case No.: OLT-22-004614 OO OLT Lead Case No.: OLT-22-004614 OLT Case Name: Boyce v. Pickering (City) Heard: June 28, 2023 by Video Hearing

APPEARANCES:

Parties Christine Boyce City of Pickering

Counsel L. Hansen A. Whyte

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an Appeal filed by Christine Boyce (“Appellant”) against the decision of the City of Pickering (“City”) Committee of Adjustment (“COA”) to deny a Minor Variance (”MV”) for the property located at 734A Krosno Boulevard (“Site” / “subject property”).

SITE CONTEXT

2The Site is a legal lot of record that predates the approval of the Zoning By-law No. 2520 (“ZBL”) in 1961 by the Ontario Municipal Board. Despite the completion of the townhouse block in 1962, the existing lot and the subject property contains a number of recognized non-conforming conditions due to the submission of the building permit application prior to the approval of the ZBL.

3The Site has a frontage of approximately 5.3 m on Krosno Boulevard, a lot depth of approximately 59 m with the rear yard abutting a City park and is two storeys in height. Due to the location of the subject property in the interior of the townhouse block, it has no side yard.

4The subject property is designated “Mixed Use Areas – Local Nodes” within the Bay Ridges Neighbourhood and is zoned Residential Multiple (RM2). Residential townhomes are permitted under this designation.

STATUS REQUEST

5Prior to the Hearing, the Tribunal received Party Status request from Martina Tojčić. The Tribunal questioned whether Ms. Tojčić is intending to call any expert witnesses to testify at the Hearing. Ms. Tojčić stated that she will not have any expert witnesses at the hearing.

6The role of a Party at the appeal is to fully engage in the hearing process – more specifically, to support the issues raised by them with expert planning or technical evidence. Given that Ms. Tojčić was not calling any witnesses or proffering expert evidence, the request for Party Status was denied. Instead, the Tribunal granted Ms. Tojčić Participant Status and will consider the issues and concerns raised by her when making a decision.

BRIEF CHRONOLOGY OF THE APPLICATION AND THE DEVELOPMENT PROPOSAL

7In August of 2021, in the original MV application, the Appellant sought variances to the zoning standards to permit the construction of a second-storey addition extending to the rear yard of the existing townhouse.

[8] The MV application sought authorization of variances to permit the following:

• an interior side yard setback of 0 metres (“m”) from both side lot lines, whereas the ZBL requires a minimum side yard setback of 6.0 m;
• a minimum floor area of 80 square metres (“m2”), whereas the ZBL requires a minimum floor area of 95 m2 per dwelling unit; and
• a maximum lot coverage of 25.2%, whereas the ZBL permits a maximum lot coverage of 25% for all buildings other than private garages.

9City staff recommended refusal of the application as, in their opinion, the requested MVs did not meet the required four tests. At its meeting on September 8, 2021, the COA refused the application, and the Appellant filed an Appeal with the Tribunal.

10In its Decision, dated April 28, 2022, the Tribunal dismissed the Appeal (OLT-22-001456).

11In September of 2022, the Appellant submitted a new application. In the new application, the Appellant requested authorization for a single MV to allow a 0.6 m side yard setback from the east and west lot lines to permit a third-storey addition to the existing two-storey townhouse.

12The Staff Report dated October 12, 2022 recommended the approval of the application. However, the COA refused the application. The Appellant subsequently filed the Appeal to the Tribunal. That is the matter before the Tribunal at the Hearing.

LEGISLATIVE TESTS

[13] An appeal pursuant to s. 45 of the Planning Act (“Act”) is a Hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance(s):

1. maintain(s) the general intent and purpose of the Official Plan (“OP”);
2. maintain(s) the general intent and purpose of the ZBL;
3. is/are minor in nature; and
4. is/are desirable for the appropriate development or use of the land, building or structure.

14In addition to the four tests, the Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act and the decision of the approval authority under s. 2.1 of the Act.

WITNESSES

15Deborah Wylie, the City’s Manager of Zoning and Administration and a Registered Professional Planner, appeared under summons by the Appellant.

16Ted Davidson, a Registered Professional Planner, appeared on behalf of the City.

17After review of Ms. Wylie’s and Mr. Davidson’s professional qualifications and confirmation of their Acknowledgement of Expert Duties, the Tribunal qualified them to provide expert opinion evidence in the area of land use planning.

HEARING

Ms. Wylie’s evidence

18Ms. Wylie stated that she oversaw the Proposed Development Application along with the Planner II and the Principal Planner and had assisted in the review of the Staff Report to the COA from October 12, 2022 (Exhibit 3). She explained that the initial application for a building permit had indicated 0 m setbacks from the interior lot lines. The Zoning Examiner has determined that the application did not comply with the ZBL, and that the zoning requirement is the greater of 6.0 m or one-fifth of the building. The Zoning Examiner determined that it was not practical to apply such a side yard setback due to the interior lot being only 5.3 m in width. There were further discussions between the Appellant and City’s Planning staff, and it was determined that the Planning Staff could support a 0.6 m setback from both of the interior lot sidelines.

19The subject lands are located within the Bay Ridges Neighbourhood, and are designated “Mixed Use Areas – Local Nodes” in the OP. Townhouses are permitted within this designation. Ms. Wylie reviewed applicable policies in the OP (Exhibit 4). When it comes to the surrounding area, she determined that there is no consistency in development form. The townhouse block on the subject property is located closer to the street than the adjacent townhouse blocks. The commercial development across the street is set back further from the street. Thus, in Ms. Wyle’s opinion, there is not a consistent residential form of development in the immediate vicinity. Ms. Wylie concluded that the Proposed Development conforms to the OP.

20Ms. Wylie testified that the Site is zoned RM2, and the townhouse is a permitted use. Ms. Wylie explained that a 0.6 m setback would allow for the construction and maintenance of the addition to happen entirely within the subject property. When it comes to height, the Proposed Development is within the required ZBL height of 10.5 m. Thus, no variance for height is required. She also stated that the existing dwelling is less than the floor area required by the ZBL. The proposed addition will bring it closer to the requirement.

21In Ms. Wylie’s opinion, the requested MV is in keeping with the general intent and purpose of the ZBL.

22Ms. Wylie agreed with the Staff Report that, due to the very small footprint of the existing townhouse, the addition is reasonable. The additional floor area is desirable and will positively contribute to the usability of the home. Considering that the Proposed Development is located entirely within the limits of the property and within the existing building perimeter, the requested variance is minor. In Ms. Wylie’s opinion, the proposed addition will not have any adverse impact on the existing townhouse block and will have a minimal impact in terms of views or impacts to the front and rear yards of the adjacent properties.

23It was brought to the Tribunal’s attention that the Engineering Services and the Building Services did not have any comments or concerns with the Proposed Development (Exhibit 3, p. 4).

Mr. Davidson’s evidence

24Mr. Davidson is of the opinion that the Proposed Development does not meet the four tests and that the requested variance should be dismissed. He opined that the proposed addition would impact views from the street and neighbouring properties, and the provisions to the side yard were applied incorrectly. He believes that “[t]he proposed addition of a third storey completely ignores the requirements of the attached dwelling units that rely upon structural and mechanical elements of the rowhouse complex that shared elements in common”. Mr. Davidson proffered that the requested variance is not minor, due to lack of consideration of the impact onto the neighbouring properties.

25During Cross-examination Mr. Davidson stated that no side yard set back is required and no MV is required.

26In his oral testimony Mr. Davidson ventured outside of his qualified expertise on numerous occasions. The Tribunal directed Mr. Davidson to stay within the area of his professional knowledge. Despite multiple objections by the Appellant’s Counsel and the Tribunal’s repeated directions, Mr. Davidson persisted in his attempt to provide opinion evidence on matters for which he has no expertise and for which the Tribunal has not qualified him as an expert. Given the behavior of Mr. Davidson at the Hearing, the Tribunal decided that his evidence would not be considered.

ANALYSIS AND FINDINGS

27Based on a thorough review of the evidence before the Tribunal, including the Participant Statement of Ms. Tojčić, the Staff Report, and in consideration of the lack of comments or concerns by the Engineering Services and Building Services, and taking into account the expert planning opinions of Ms. Wylie and the absence of credibility in the testimony provided by Mr. Davidson, the Tribunal prefers Ms. Wylie’s opinion evidence.

28The Tribunal finds that the residential use maintains the intent of the OP designation permitting townhouses. To the intent of the ZBL, the Tribunal is of the opinion that the proposed addition will bring the Site closer to compliance, while being within the permitted height. The proposed development is desirable as it would lead to the greater enjoyment and usability of the subject property. The Tribunal agrees with Ms. Wylie’s analysis that the requested variance is minor in nature and will not have an undue impact on the surrounding properties.

29The Tribunal finds that the requested variance satisfies the four tests of s. 45(1) of the Act, have regard to the matters of Provincial interest set out in s. 2, and are representative of good planning.

ORDER

30THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 2520, stated in paragraph 11 above, is authorized.

“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.