Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 03, 2023

CASE NO(S).: OLT-23-000299

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

Appellant: PCMnow.com Inc.

Applicant: David and Leesa Civiero

Subject: Minor Variance

Description: To permit construction of a two-storey detached dwelling

Reference Number: CAV A/041/2023

Property Address: 1123 Morrison Heights Drive

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-23-000299

OLT Lead Case No.: OLT-23-000299

OLT Case Name: PCMnow.com Inc. v. Oakville (Town)

Heard: August 31, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
David and Leesa Civiero PCMnow.com Inc.	Denise Baker
Town of Oakville	Dennis Perlin

MEMORANDUM OF ORAL DECISION DELIVERED BY S. L. DIONNE AND DAVID BROWN ON AUGUST 31, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal filed by PCMnow.com Inc. on behalf of David and Leesa Civiero (the “Appellant/Applicant”) pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”), regarding a decision of the Town of Oakville (the “Town”) Committee of Adjustment (the “COA”) that refused Application CAV A/04/2023 (the “Application”). The Application affects the lands known municipally as 1123 Morrison Heights Drive (the “Subject Property”).

2The Subject Property is currently vacant, as the previously existing two-storey detached dwelling was demolished in April 2023. The Subject Property has 32.66 metres (“m”) of frontage on Morrison Drive and an area of 1,851 square metres (“m²”).

3The Appellant/Applicant proposes to construct a new two-storey detached residential dwelling, along with an accessory structure (cabana) in the rear yard. The proposed dwelling will have a footprint of approximately 538.6 m² including an integrated three-car garage and covered front and rear porches.

4To facilitate the new construction, the Appellant/Applicant filed the Application with the COA requesting variances from four provisions of the Town Zoning By-law 2014-014 (the “ZBL”), related to driveway width, private garage floor area, building depth, and building height.

5At its meeting on April 5, 2023, the COA received a report from Town Staff, dated April 5, 2023 (“Staff Report”), that outlined support for the variance for an increase in the private garage floor area, however the Staff Report did not support the variances for the increase in driveway width, the increase in building depth, and the increase in building height. Additionally, the COA received two written submissions in opposition from area residents, outlining concerns that the proposed dwelling would be out of scale with other dwellings in the neighbourhood (i.e. too high and too deep) and the increase in driveway width might result in stormwater runoff and removal of trees. The COA refused the Application.

6Subsequent to the Appeal of the COA decision, without prejudice discussions were initiated and revisions to the development proposal were made which have resulted in a settlement of all the issues of the Town. The Parties have executed Minutes of Settlement (“MOS”).

SETTLEMENT PROPOSAL

7The Tribunal marked a Document Book, dated August 31, 2023, as Exhibit 1. The Document Book contained the Affidavit of Terry Korsiak, a Registered Professional Planner. The MOS were filed with the Tribunal and marked as Exhibit 2 at the request of the Town.

8The Settlement Proposal includes revised architectural drawings for the proposed two-storey dwelling and revised requests for variances, found at Tab 18 and 17 in Exhibit 1 respectively.

9The architectural drawings were revised to reduce the overall height of the dwelling and revisions to the front and rear elevation plans reduced the massing impact. The Settlement Plans are found at Tab 18 of Exhibit 1. Specifically, the covered porch on the front elevation was revised to eliminate the second-floor element, the chimneys included on the rear covered porch were removed as the wood burning fireplaces were converted to gas fireplaces, the overall height of the dwelling has been reduced, and the width of the driveway across the front of the garage doors has also been reduced.

10On Consent, the Parties requested that the Tribunal amend the Application in accordance with authority set out in s.45(18.1) and (18.1.1) of the Act, as described in Tab 17 of Exhibit 1, as follows:

1. Maximum Driveway Width Variance

It is proposed that a variance be granted from Section 5.8.2 c) iii) of the ZBL that permits the maximum width of a driveway shall be 9.0 m for a lot having a frontage of 18.0 m or less, whereas the relief requested is to permit the maximum width of the driveway to be 10.48 m.

2. Maximum Total Floor Area of Private Garage Variance (same as original application)

It is proposed that a variance be granted from Section 5.8.6 c) of the ZBL which states for lots located within the Residential Low (RL1) Zone the maximum total floor area for a private garage shall be 56.0 m², whereas the relief requested is to permit the maximum total floor area for the private garage to be 71.1 m².

3. Maximum Dwelling Depth Variance (same as original application)

It is proposed that a variance be granted from Table 6.3.1 (Row 9, Column RL1) that permits the maximum dwelling depth of 20.0 m, whereas the relief requested is to permit a maximum depth of 26.72 m.

4. Maximum Height Variance

It is proposed that a variance be granted from Section 6.4.6 c) of the ZBL that permits the maximum height shall be 9.0 m, whereas the relief requested is to permit a maximum height of 9.49 m.

11The Settlement Proposal also entails enhancements to be made related to landscaping, tree removal, and compensation as set out in the MOS.

12Counsel for the Town submitted that the revisions to the Application were considered minor, and that the Town had no objection to the revised variances and the revised drawings, subject to the following two conditions:

(a) That the approval expires two years from the date of the decision if a building permit has not been issued for the proposed construction; and,

(b) That the dwelling be constructed in general accordance with the architectural drawings dated August 11, 2023, as set out in Tab 18 of Exhibit 1.

LEGISLATIVE CONTEXT

13When making its decision, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act. It must also have regard to the decision of the COA and the information considered by it, as required under s. 2.1(1) of the Act, though it is not bound by that decision.

14The proposed variances must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

15When considering an Application for Minor Variance, the Tribunal must be satisfied that the requested variance meets the four tests as set out in s. 45(1) of the Act, namely:

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

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

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

4. Is the requested variance minor in nature?

EVIDENCE

16The Tribunal qualified Terry Korsiak, a Registered Professional Planner, to provide expert opinion evidence in the field of Land Use Planning. He confirmed to the Tribunal that he adopts the contents of his Affidavit found at Tab 1 of Exhibit 1 in its entirety.

17Mr. Korsiak provided the Tribunal with an overview of the Subject Property and its context within the neighbourhood. It is a large, interior, and slightly reversed pie-shaped lot located within an established neighbourhood in southeast Oakville. The neighbourhood is characterized by a variety of architecturally styled dwellings on large lots with mature trees and vegetation. The neighbourhood has been experiencing renewal for many years through the replacement of the existing housing stock with new large houses.

18It was Mr. Korsiak’s evidence that the proposed new dwelling has been located and designed to fit on the Subject Property, meeting or exceeding all required building setbacks and with a front yard setback that is consistent with the previous dwelling. The architecture of the dwelling has been carefully considered in terms of materials, roof line, and proportions to ensure compatibility with the adjacent properties and the local context while contributing to the varied character of buildings in the immediate neighbourhood. The proposed dwelling generally occupies the same part of the Subject Property as the former dwelling.

19In terms of regard for matters of provincial interest, he opined that the proposed variances have sufficient regard in that the Settlement Proposal does not contemplate development in natural areas, features, or functions; has access to a full range of existing schools, health care facilities, community services, and recreational facilities; and provides an opportunity for gentle intensification to occur where such development ought to occur, on a lot having frontage along a local road within walking distance of destinations and services to meet daily needs.

20It was also his opinion that the Settlement Proposal is consistent with sections 1.1.1 e), 1.1.3.1, and 1.1.3.3 of the PPS in that the proposed variances will facilitate development in a compact form and at a density which makes efficient use of a lot connected to municipal water and sanitary sewer services with access to existing transit, community services, and infrastructure.

21Mr. Korsiak advised the Tribunal that in his opinion the Settlement Proposal conforms to the Growth Plan, namely Sections 1.2.1, 2.2.1, and 2.2.2.3 which pertain to achieving complete communities, directing growth to settlement areas, and a form of gentle intensification and re-development.

22It was Mr. Korsiak’s opinion that the proposed variances in the amended Application, individually and collectively, comply with the four tests under s.45(1) of the Act.

23The Subject Property is designated “Urban Area” in the Region of Halton Official Plan (the “ROP”). Mr. Korsiak opined that the Settlement Proposal conforms with the ROP policies that permit and encourage contextually appropriate development and intensification.

24The Subject Property is located within the Town’s Urban Area and is designated “Low Density Residential” – Special Policy Area under the Livable Oakville Plan, 2009, the Town’s Official Plan (“TOP”).

25Mr. Korsiak proffered that the intent of the policies of the TOP are to protect the unique character of this area within the Town by limiting intensification to development which maintains the integrity of the large lots. The Settlement Proposal maintains the large lot and replaces a former dwelling with a new, more energy efficient one.

26Mr. Korsiak advised the Tribunal that the TOP contains overall policy direction for development occurring within stable residential areas and pointed out the development criteria and guidance specific to development in these areas as set out in Policy 11.1.9 found at Tab 10 of Exhibit 1. Of note are the following applicable policies:

Development within all residential communities shall be evaluated using the following criteria to maintain and to protect the existing neighbourhood character:

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

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

h) Impacts 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.

27Mr. Korsiak further advised the Tribunal that “Compatible” is a defined term in the TOP, as follows:

Compatible means the 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.

28The Subject Property is zoned Residential Low Density, Mature Neighbourhoods Overlay (RL1-0) in the ZBL. The in-effect zoning reflects the Neighbourhood’s low-rise, low density, and varied residential character. Detached dwellings and accessory structures are permitted uses. Mr. Korsiak opined that the Settlement Proposal complies with all required setbacks.

29In consideration of the relief requested for maximum driveway width, Mr. Korsiak advised the Tribunal that a circular driveway is permitted under the ZBL and that the general intent and purpose of the driveway regulations is to ensure landscaping from the streetscape perspective is maximized and disruption to traffic operations is minimized. In this case, the circular driveway is proposed to facilitate ease of access and eliminate the need to back out of the garage and down the driveway onto the road. He continued advising that the trees on the Subject Property and adjacent lands have been considered. The ZBL allows a maximum driveway width of 9 m on this property, given its 33 m of frontage. The two “legs” of the driveway are 4.5 m or less in width and the driveway only widens to a maximum of 10.48 m immediately in front of the garage doors. Mr. Korsiak proffered that, in terms of the view from the street, it would be indistinguishable whether the driveway is 10.48 m as opposed to 9 m, given the extent of landscaping in the front yard.

30In consideration of the maximum private garage area variance, the proposed relief would permit the garage to be 15.1 m² larger than permitted by the ZBL. The requested relief will allow additional space internal to the dwelling for access to the mudroom and side yard. The attached garage is proposed to be setback further from the street than the previous dwelling and the doors are staggered behind the front wall of the dwelling, making the garage appear less prominent. It is Mr. Korsiak’s opinion that the proposed garage will not be a dominant feature of the dwelling as seen from the public realm which meets the general intent and purpose of the ZBL.

31Mr. Korsiak opined that, in consideration of the maximum building depth provisions of the ZBL, the purpose and intent of this standard is to prevent the construction of overly deep dwellings that may impact neighbouring dwellings. Impacts can potentially include light, view, and privacy. In this case, the portion of the dwelling from the front wall of the dwelling to the rear wall is 20 m in depth. The relief is required as the measurement is taken from the front of the front covered porch to the rear of the rear covered porch, being 26.72 m in depth. Mr. Korsiak noted for the Tribunal that Town Staff interpret building depth to include the unenclosed covered porches on the front and rear of the dwelling. In this case, the proposed dwelling is similar in overall depth and footprint to the former dwelling and the proposed dwelling lines up both in the front and rear with the abutting house to the north. Mr. Korsiak’s evidence was that the proposed siting will not result in any adverse light, view, or privacy impacts. He also advised the Tribunal that the proposed dwelling depth is modest, considering the lot has a depth of approximately 66 m along the north lot line and approximately 74 m along the south lot line, allowing for generous setbacks of approximately 15 m in the front yard and approximately 34 m in the rear yard.

32The final variance for maximum building height relief requested is to allow an additional 0.49 m of building height above the permitted 9 m. In this instance, the portion of the dwelling with the proposed increase in height is towards the centre of the dwelling itself. The proposed dwelling has a number of roof line elements to break up the overall massing of the proposed dwelling. The intent of the ZBL standard is to limit the potential for impacts related to overlook, shadow, and loss of sky view on adjacent properties, as well as maintain consistency in the area’s physical character. It was Mr. Korsiak’s evidence that the proposed dwelling, having a “centralized, flattened roof line,” minimizes the impact of the requested height variance and the incremental increase of less than 0.5 m will not create an overlook, shadow, or loss of sky view impacts when compared to a dwelling constructed at the as-of-right height of 9.0 m.

33It is Mr. Korsiak’s opinion that the requested four variances will not result in any unacceptable adverse impacts on the surrounding properties, nor the view from the public realm, and that the proposed variances, both individually and collectively, are minor in nature.

34It was also his opinion that the Settlement Proposal represents appropriate and desirable development of the Subject Lands in that the scale, massing, height, and siting of the proposed dwelling is compatible with and reflects the prevailing built form of other dwellings in the local context.

35It was Mr. Korsiak’s opinion that the proposed variances have regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, conforms to or do not conflict with the Growth Plan, have proper regard for the Town’s Urban Design Guidelines, represent good land use planning, and are in the public interest.

ANALYSIS AND FINDINGS

36The Tribunal accepts the uncontested planning evidence of Mr. Korsiak in support of the Settlement Proposal, including the amendments to the Application.

37The Tribunal finds that the Settlement Proposal has appropriate regard for matters of provincial interest as set out in s. 2 of the Act, as the Settlement Proposal represents the efficient use of sewage and water services and waste management systems, the orderly development of safe and healthy communities, the appropriate location of growth and development, and the promotion of built form that is well-designed and encourages a sense of place.

38In consideration of s. 2.1(1), the Tribunal reviewed the decision of the COA, the written submissions considered by the COA, and the Staff Report and finds that the Settlement Proposal, more particularly the revisions to the drawings which illustrate the reduction in building height and revisions to front and rear covered porches and the clarification regarding the portion of the driveway proposed to be increased in width from 9 m to 10.48 m, in the opinion of the Tribunal, addresses the concerns raised by the COA in its denial of the Original Application.

39The Tribunal finds that the Settlement Proposal is consistent with the PPS as it represents development that maximizes use of existing infrastructure and promotes efficient land use.

40In consideration of the four tests, the Tribunal finds that the two-storey detached dwelling use is permitted by the TOP and ROP and the proposed dwelling, as described on the plans included at Tab 18 of Exhibit 1, is compatible with and in keeping with the character of the neighbourhood. The Tribunal is satisfied that the Settlement Proposal meets the general intent and purpose of the TOP.

41The Tribunal finds that the relief sought in respect to driveway width, garage area, dwelling depth, and dwelling height from the ZBL are appropriate in the context of the Settlement Proposal. The Tribunal is satisfied that the general intent and purpose of the ZBL is maintained.

42The Tribunal, having reviewed the proposed development and the context of the Subject Property, is satisfied that the Settlement Proposal is desirable for the appropriate development and use of the Subject Property.

43The Tribunal is satisfied with the Settlement Proposal and the revisions included therein are minor in nature. The proposed dwelling and the variances being sought to facilitate the construction of the proposed dwelling are in keeping with the character of the area.

44In consideration of the proposed enhancements to landscaping, tree removal, and compensation, while these items are part of the Settlement Proposal, the Tribunal finds that they are covered by the MOS and are not required to be included as conditions to the approval of Application.

45In consideration of the above, the Tribunal allows the Appeal in part and authorizes the variances, as amended, in accordance with the Settlement Proposal.

ORDER

46THE TRIBUNAL having been requested to amend the Application from the Original Application, and the Tribunal having determined that the requested amendment is minor, as provided for in subsection 45(18.1.1) of the Planning Act, the Tribunal is satisfied that no further notice is required.

47THE TRIBUNAL ORDERS that the Appeal is allowed in part and the variances to By-law No. 2014-14 are authorized as follows:

1. To permit a maximum driveway width of 10.48 m, whereas Section 5.8.2 c) iii) of Zoning By-law 2014-14, as amended, permits the maximum width of a driveway shall be 9.0 m for a lot having a frontage of 18.0 m or less;

2. To permit a maximum total floor area for the private garage to be 71.1 m², whereas Section 5.8.6 c) for lots located within the Residential Low (RL1) Zone, Zoning By-law 2014-14, as amended, permits a maximum total floor area for a private garage of 56.0 m².

3. To permit a maximum dwelling depth of 26.72 m, whereas Table 6.3.1 (Row 9, Column RL1) of Zoning By-law 2014-14, as amended, permits the maximum dwelling depth to be 20.0 m;

4. To permit a maximum dwelling height of 9.49 m, whereas Section 6.4.6 c) of Zoning By-law 2014-14, as amended, permits a maximum height of 9.0 m.

48AND THE TRIBUNAL ORDERS that the variances authorized in paragraph [47] above be granted subject to the following conditions:

(a) That the approval expires two years from the date of the decision if a building permit has not been issued for the proposed construction; and,

(b) That the dwelling be constructed in general accordance with the architectural drawings dated August 11, 2023, as set out in Tab 18 of Exhibit 1.

“S. L. Dionne”

S. L. DIONNE MEMBER

“David Brown”

DAVID BROWN 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.