Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 21, 2023

CASE NO(S).: OLT-23-000527

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: John Tawadros Subject: Consent-refused by Approval Authority Description: New lot creation to permit 2 detached residential dwellings Reference Number: B-5/23 Property Address: 1167 Strathy Avenue Municipality/UT: Mississauga / Peel OLT Case No.: OLT-23-000527 OLT Lead Case No.: OLT-23-000527 OLT Case Name: John Tawadros v Mississauga (City)

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

Applicant and Appellant: John Tawadros Subject: Minor Variance Description: Variances for corner lot Reference Number: A-115/23 Property Address: 1167 Strathy Avenue Municipality/UT: Mississauga / Peel OLT Case No.: OLT-23-000528 OLT Lead Case No.: OLT-23-000527 OLT Case Name: John Tawadros v Mississauga (City)

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

Applicant and Appellant: John Tawadros Subject: Minor Variance Description: Variances for interior lot Reference Number: A-116/23 Property Address: 1167 Strathy Avenue Municipality/UT: Mississauga / Peel OLT Case No.: OLT-23-000529 OLT Lead Case No.: OLT-23-000527 OLT Case Name: John Tawadros v Mississauga (City)

Heard: September 8, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
John Tawadros ("Applicant")	Self-represented
City of Mississauga ("City")	Alex Ciccone*

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal are appeals by the Applicant of refusals by the City’s Committee of Adjustment (“COA”) of two Minor Variance applications and a Consent application (together the “Applications”). The Applicant is seeking to redevelop a property known municipally as 1167 Strathy Avenue in the City (“Subject Property”) by severing the existing corner lot into two lots and constructing a detached two-storey dwelling on each of the lots (“Proposed Development”). The appeals are brought respectively pursuant to sections 45(12) and 53(10) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).

2City staff recommended against the Applications and the City’s COA refused the Applications on May 18, 2023.

3The Notice of this Hearing was sent administratively by the Tribunal on July 19, 2023, and a re-scheduling request by the City was denied by the Tribunal on July 25, 2023.

4No other person sought Party or Participant status.

SUBJECT LANDS AND SURROUNDINGS

5The Subject Property has an area of approximately 607.83 square metres (“m²”), a frontage of approximately 18 metres (“m”) and a lot depth of approximately 33.5 m and it is located at the north corner of Strathy and Sawyer Avenues. It is north of the CN rail line in the Lakeview neighbourhood. It is serviced by MiWay public transit via Ogden Avenue Route 5 to the west and Lakeshore Route 23 to the south with direct connection to GO Transit Long Branch and Port Credit stations.

6The Subject Property is serviced by municipal services and contains an existing two-storey detached dwelling and one-storey detached garage. The Applicant proposes the demolition of both.

7The Subject Property is located within the Lakeview Neighbourhood Character Area in Schedule 9 and is designated Residential Low Density II in Schedule 10 of the City’s Official Plan (“OP”). The Subject Property is also located within the Lakeview Local Area Plan (“LAP”) boundary, within the Central Residential Area and Cawthra Village Sub-Area Boundary.

8The Subject Property is zoned R3-75 in the City’s Zoning By- law 0225-2007 (“ZBL”).

9Land uses in the surrounding area include low rise residential, open space (Serson and Petrescue Park), green lands (Serson Creek) and institutional uses (Lakeview Library, Toronto French School). Land uses in the immediate area surrounding the subject property are primarily low rise residential, in the form of single detached and semi-detached dwellings. All properties in the immediate area with detached dwellings are zoned Residential R3-75, while lots with semi-detached dwellings are zoned RM1-26. The detached dwellings are characterized as having one to two-storeys and the semi-detached dwellings are characterized as having one to two storeys. The area includes detached replacement dwellings and existing bungalows, forming a diverse and evolving built form.

ORIGINAL APPLICATION, AMENDED APPLICATION AND ALTERNATIVE PROPOSAL

10The Applicant seeks to sever the Subject Property to create two building lots. In the original Applications considered by the COA, the retained lot would have had a frontage of 9.05 m and an area of 301.94 m². It would become an interior lot. The severed lot would have had a frontage of 9.13 m and an area of 305.89 m². It would become a new corner lot.

11In addition to the Consent application, the Applicant concurrently sought approvals for Minor Variances from the City’s COA for the retained and severed lots with respect to lot width, lot area, lot coverage, interior and exterior side yards, and height to eaves. In a filing with the Tribunal dated September 3, 2023, the Applicant sought to modify what was originally submitted to the COA to align, in the Applicant’s words, “the requested minor variances more closely with the context of the immediate neighbourhood”. The Proposed Development under these modifications has a flat-roof design for both dwellings, thus eliminating the need for some Minor Variance approvals relating to eave overhangs.

12The original and modified Minor Variance applications can be summarised as follows, respectively for the retained lot and the severed lot (corner lot):

RETAINED LOT	ZBL Standard	Original	Modified
Frontage (min)	15 m	9.05 m	9.0 m
Area (max)	550 m²	301.94 m²	301.7 m
Lot Coverage (max)	35%	40%	39%
N Interior Side Yard (min)	1.81 m to 2nd story 2.42 m to 3rd story	1.2 m	1.2 m
S Interior Side Yard (min)	1.81 m to 2nd story 2.42 m to 3rd story	1.2 m	1.2 m
Interior side yard to eaves overhang	1.36 m	n/a	0.75 m
Height to Eaves (max)	6.4 m	8.6 m	n/a

SEVERED LOT	ZBL Standard	Original	Modified
Frontage (min)	19.5 m	9.13 m	9.13 m
Area (max)	720 m²	305.89 m²	306.1 m
Lot Coverage (max)	35%	39.5%	36.3%
N Interior Side Yard (min)	1.81 m to 2nd story 2.42 m to 3rd story	1.2 m	1 m
S Exterior Side Yard (min)	6 m	1.3 m	2.37 m
Exterior side yard to eaves overhang	5.55 m	n/a	1.92 m
Interior side yard to eaves overhang	1.36 m	n/a	0.55 m
Height to Eaves (max)	6.4 m	8.6 m	n/a

13At the Hearing, the Tribunal considered whether the proposed amendments were “minor” pursuant to s. 45(18.1.1) of the Act. The City did not object to the modification. The Tribunal concluded that the modifications were minor and proceeded to consider the modified Applications without additional notice to other persons. However, an alternative proposal to consider the construction of a triplex on the Subject Property was found not to be “minor” and was not considered by the Tribunal during the hearing. The construction of a triplex is considerably different from the essence of the original Proposed Development, namely the construction of two detached dwellings. Notice of the alternative proposal had not been given as prescribed at s. 18.1 of the Act.

EVIDENCE AND ANALYSIS

14The Tribunal considered evidence from two witnesses. First, the Applicant, having been duly affirmed at the outset of the Hearing, provided evidence as a lay witness. Second, Connor DiPietro, a planner with the City, was qualified on consent as an expert in Land Use Planning. The witnesses’ written evidence, in the form of witness statements, including various attachments, were marked as Exhibits 1 and 3 respectively.

15To be successful, the Applicant must satisfy the Tribunal that the Applications meet all legislative tests. In particular, the Tribunal must be satisfied that the Applications:

a. have regard to matters of provincial interest in s. 2 of the Act;

b. are consistent with the Provincial Policy Statement 2020 (“PPS 2020”);

c. conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”);

d. conform to the Region of Peel Official Plan (“Regional OP”);

e. meet the four-part test set out in s. 45(1) of the Act (for the Minor Variance applications); and,

f. have regard to the criteria set out in s. 51(24) of the Act (for the Consent application).

16It was common ground as between the Parties that that the Applications were consistent with PPS 2020 and conformed to the Growth Plan and the Regional OP. The Tribunal so finds. The Tribunal, however, must consider the Applications against the legislative tests set out at s. 45(1) and s. 51(24) of the Act.

Applications for Minor Variances

17To succeed with respect to the Minor Variance applications, the Applicant must satisfy the Tribunal that the four tests set out under s. 45(1) of the Act are met, specifically that the requested variances:

i. Maintain the general intent and purpose of the City’s OP;

ii. Maintain the general intent and purpose of the ZBL;

iii. Are desirable for the appropriate development or use of the land, building or structure; and,

iv. Are minor.

18The Applicant argued that the applications for Minor Variances meet the four tests. He explained that the Proposed Development was to provide a cost-efficient multi-generational housing outcome for his family. In particular, he testified with respect to properties in the immediate neighbourhood that, in his view, deviate from the ZBL’s performance standards in a similar way he is proposing. Thus, he argues, the proposed Minor Variances are not unprecedented and are appropriate. In his view, the maps and tables he filed illustrate that numerous lots in the vicinity have coverage of less than 150 m² and have considerable variation in both frontage sizes and overall area.

19By contrast, Mr. DiPietro, provided uncontested expert land use planning evidence. In his professional opinion, the Minor Variance applications do not meet any of the four tests at s. 45(1) of the Act.

20With respect to the first test, he opined that the proposed frontages and areas do not maintain the general intent and purpose of the OP, in particular Policies 5.1.7, 5.3.5.5, 9.1.3 and 9.2.2.3 of the OP. In his view, the proposed lots are not compatible in form or scale to the surrounding lots and will not enhance the existing or planned development of the area. He explained that stable residential neighbourhoods are to be protected and conserved under the OP. Moreover, he testified that the proposed lot areas and frontages (a) result in significant variances being required to accommodate the detached dwellings due to the smaller lot sizes; and (b) do not respect the existing character of lots in the area and will pose negative impacts to the overall streetscape.

21With respect to the second test, Mr. DiPietro explained that the intent of the ZBL of regulating minimum lot area, in conjunction with minimum lot frontage, is to establish an appropriate lotting pattern and to ensure that new lots are appropriately sized and fit within the context of the surrounding area. He also explained that the intent in restricting lot coverage is to ensure that there is not an overdevelopment of the lot and that the intent in regulating exterior side yard setbacks is to ensure that an adequate buffer exists between a structure’s massing and the public realm.

22In his opinion, the proposed lot frontages and areas are not consistent with lots found in the immediate area. He opined that the approval of the requested variances for reduced lot areas and frontages would create lots that would not represent the existing lotting pattern. He opined that the proposed lots would not be appropriately sized. The lot frontages and areas are significantly undersized. He explained that the proposed lot frontages and areas are even smaller than lots containing semi-detached dwellings located in the immediate area. In his view, the Applicant’s proposal represents an overdevelopment.

23The proposed exterior side yard setback does not provide an adequate buffer from the lot line in his opinion. The reduced exterior side yard setback is consistent along the entire southerly wall of the dwelling. He explained that while similar exterior side yard setbacks are found in the immediate area, those setbacks are only to portions of the outer walls of the dwelling and do not extend along the entirety of the wall. In his professional opinion the setback numerically represents a major deviation from the minimum setback requirement of the lots as both dwelling’s footprints alone exceed the maximum lot coverage requirement.

24With respect to the third test, it was Mr. DiPietro’s professional land use planning opinion that the Minor Variance applications are not desirable for the appropriate development because the proposed lots are out of character with the existing development and represent an overdevelopment.

25With respect to the fourth test, Mr. DiPietro testified that in his professional opinion the proposed variances are not numerically or substantively minor in their impact on the neighbourhood. He opined that the proposed lot frontages and areas are directly influencing the resulting form of the detached dwellings, which will negatively impact the streetscape and neighbouring lots.

26The Tribunal accepts the uncontested expert evidence of Mr. DiPietro and finds that the applications for Minor Variances do not meet the four-part test. The Applicant must satisfy each of those tests. Although the Proposed Development is for detached dwellings, the proposed lot frontage would be significantly less than the average frontage in the immediate area (16.5 m), would be the smallest lot frontage in the area, would have the smallest lot area in the neighbourhood and would not respect the lotting pattern, especially for corner lots in the area. The Subject Property, with an area of a little over 608 m², was already under the minimum performance standard for corner lots set out in the ZBL (720 m²). The approval of the Minor Variances would facilitate the development of detached dwellings that differ in scale and built form from what currently exists in the neighbourhood. Consequently, the Tribunal concludes that the Proposed Development would not maintain the general intent and purpose of the OP. The Tribunal also finds that the Proposed Development does not maintain the general intent and purpose of the ZBL for the reasons set forth by the uncontested expert evidence. Finally, the variances sought are also numerically very significant and would, on a qualitative level, substantially modify the streetscape and the neighbourhood. Thus, the Tribunal concludes that they are not minor.

Application for Consent

27The legislative test for Consents at s. 51(24) of the Act requires the Tribunal to have regard to numerous criteria. This includes, at s. 51(24)(c) of the Act, whether the proposed severance conforms to the City’s OP.

28The Applicant argued that the neighbourhood was not intended to be static and that he was proposing a gentle form of much-needed intensification. He testified that the Proposed Development was appropriate due to its proximity to transit and the Lakeview community node. Although he admitted in his evidence and during his cross-examination that lot sizes for the Proposed Development deviated from the typical lot size in the neighbourhood, he testified that the dwellings would harmonize well with the overall character of the surrounding area.

29By contrast, Mr. DiPietro testifies that, in his professional opinion, the Proposed Development did not have regard to matters of provincial interests at s. 2(p) (appropriate location of growth and development) and s. 2(r) (the promotion of built form that is well designed and encourages a sense of place) of the Act. He thus opined that the Consent application did not align with s. 51(24)(a) of the Act. For him, the proposed severance is not well designed nor an appropriate development, the proposed severance does not respect the existing lotting pattern, the lots are significantly smaller than any of the lots found in the neighbourhood and the lots would facilitate the development of dwellings that differ from the existing built form in the neighbourhood.

30Mr. DiPietro also opined that the Consent application did not conform to the OP for the same reasons set out above at paragraph 20.

31The Tribunal accepts the uncontested expert evidence of Mr. DiPietro and finds that the application for Consent does not meet the legislative test, particularly with respect to s. 51(24)(c) relating to conformity to the OP. The Policies of the OP, including the Lakeview Local Area Plan, contemplate that new development should “maintain”, “preserve” and “conserve” the existing stable character of the neighbourhood. The proposed intensification, while being gentle in some respects, is not compatible, in the built form and scale, to the neighbourhood. The small lot sizes and the very small lot frontages proposed by the Applicant are out of character with the neighbourhood, especially for a corner lot. The proposal simply does not respect existing lotting patterns as contemplated at Policy 9.2.2.3 of the OP.

CONCLUSION

32In summary, based on the foregoing evidence, the Tribunal finds that the applications for Minor Variances: (1) do not maintain the general intent and purpose of the City’s OP; (2) do not maintain the general intent and purpose of the ZBL; (3) are not desirable and appropriate for the use of the land; and (4) are not minor. Moreover, the application for Consent does not conform to the City’s OP, pursuant to s. 51(24)(c) of the Act. As a result, the Applicant has been unsuccessful in meeting its burden on these Appeals.

33Considering the above, there is no need for the Tribunal to address the condition of Consent discussed at the Hearing pursuant to s. 51(25) of the Act.

ORDER

34THE TRIBUNAL ORDERS that the appeals are dismissed, the variances to Zoning By-law No. 0225-2007 of the City of Mississauga are not authorized and the provisional Consent is not given.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS 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.