City of Oshawa v. MD Zahed Anis, 2024 CanLII 102759

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 16, 2024

CASE NO(S).: OLT-23-000558

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

Appellant: City of Oshawa

Applicant: MD Zahed Anis

Subject: Minor Variance

Description: To permit construction of an accessory apartment with reduced landscaped open space in the front yard to accommodate a parking space

Reference Number: A-2023-52

Property Address: 1397 Rennie Street

Municipality/UT: Oshawa/Durham

OLT Case No.: OLT-23-000558

OLT Lead Case No.: OLT-23-000558

OLT Case Name: Oshawa (City) v. Oshawa (City)

Heard: February 28-29 and May 15, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

MD Zahed Anis

A. Whyte

City of Oshawa

M. Mayhew-Hammond

DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Appeal arises under s. 45(12) of the Planning Act (“Act”) from the approval of a variance by the Committee of Adjustment (“COA”) of the City of Oshawa (“City”), submitted by Mr. MD Zahed Anis (“Applicant”) requesting a single variance for a reduction of open landscaped space in front of his residence at 1397 Rennie Street (“Site” or “Subject Lands”). The proposed reduction of the front yard landscaped open space will permit an additional parking space, to be used by the residents of an accessory apartment located within the existing dwelling.

2The Applicant’s original application to the Committee of Adjustment (“COA”), dating back to April 2023, requested a reduction in the front yard landscaping space to 43%, less than the 50% required by the City’s Comprehensive Zoning By-law No. 60-94 (“ZBL”). Notwithstanding the submission of a report by the City Staff to the COA recommending refusal, the latter approved the application, after hearing the matter at its meeting of June 1, 2023, and imposed a condition requiring the Applicant to “install a physical barrier to the satisfaction of the City of Oshawa to limit the interlocked area that may be utilized for parking vehicles”.

3The Corporation of the City of Oshawa appealed the COA’s decision to the Ontario Land Tribunal (“Tribunal”) on June 21, 2023, which initially scheduled two hearing dates on February 28, 2024, and February 29, 2024. In order to give adequate opportunities to all witnesses to provide relevant evidence, the Tribunal scheduled a third day of hearing, and completed the proceeding on May 15, 2024. As set out below, the Applicant now seeks a decrease in the maximum permitted lot coverage to 45.9%, where a minimum lot coverage of 50% is required under the ZBL.

VARIANCES BEFORE THE TRIBUNAL

4The only variance before the Tribunal is to permit a minimum of 45.9% landscaped open space in the front yard, whereas a minimum 50% landscaped open space in the front yard is required by the ZBL for a semi-detached dwelling with an accessory apartment in a R2(3)(Residential) Zone.

LEGISLATIVE FRAMEWORK

5In considering applications for variances from the Zoning By-law, the Tribunal must be satisfied that the applications meet all of four tests under s. 45(1) of the Planning Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the Zoning By-law;

• are desirable for the appropriate development or use of the land; and

• are minor.

6The proposed variances must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). When making its decision, the Tribunal must have regard to the matters of Provincial interest set out in s. 2 of the Planning 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.

FINALIZING THE VARIANCE THROUGH MUTUAL DISCUSSION

7At the commencement of the Proceeding on February 28, 2024, the City made submissions to emphasize their concerns about the numerical accuracy of the variance requested by the Applicant. When the Applicant disagreed with the City, the Tribunal advised the Parties to do their utmost to finalize the variance through mutual discussion, as a result of which Parties stood down from 10:30 a.m. to 11:45 a.m. When the Hearing resumed, the Parties stated that while they had come to an agreement regarding the quantitative aspect of the variance, they would still proceed by way of a contested hearing. The updated variance before the Tribunal requested a landscaped open space of 45.9% X Lot Area, instead of the previously requested 43% X Lot Area. After having a discussion with the Parties regarding the need for notice under Section 45.18.1.1 of the Planning Act, the Tribunal ruled that there was no need for further notice because the proposed change to the variance was minor.

EVIDENCE FROM THE APPLICANT

8Mr. Allan Ramsay was recognized as an expert in the discipline of land use planning. Mr. Ramsay described the Site as being located north of Taunton Road East, west of Harmony Road North, and on the east side of Rennie Street, with a lot area of 277.6 square metres (“sq. m”), a frontage of 9.1 metres (“m”), and a depth of 30.5 m. He described the existing house at the Site as a two-storey, semi-detached house, with an accessory apartment in the basement. He added that the house is set back 8.8 m from the front lot line, 0.6 m from the north side lot line, and 1.2 m from the south side lot line. Through photographic evidence, Mr. Ramsay pointed out the staircase visible at the front of the house, and explained how tenants could access the basement apartment.

9Mr. Ramsay explained that approving the proposed reduction of the front yard landscaped open space will permit the use of the existing basement apartment as an accessory residential apartment with its own parking space, which is the interlocked paved space in front of the accessory apartment in the front yard. Mr. Ramsay stated that should the variance be approved, there would be a total of three parking spaces at the Site, including two parking spaces side-by side in the front yard – one space on the driveway in front of the garage for the main dwelling unit, and the newly created space to be used by the residents of the accessory apartment; the third parking space is inside the existing integral garage at the front of the house.

10Mr. Ramsay discussed how one of the main objections cited by the City to the approval of this variance centred on the requirement for a curb cut for a car parked in front of the house to access Rennie Street, through a driveway that opened out onto the existing boulevard. According to Mr. Ramsay, the City’s opposition to the variance was the result of their conclusion that the curb cut in question could not be granted because it would require the removal of a City owned tree, as well as the relocation of a fire hydrant, because the curb cut would be located where the tree and the fire hydrant were presently located. Explaining how on-street parking in the City is regulated under two By-laws – the Traffic and Parking By-law No. 79-99 ( the “Parking By-law”), as amended, and the ZBL, Mr. Ramsay explained how the City’s opposition also relied on the Parking By-law’s proscription of parking vehicles within 3 m of a point on the curb, or the edge of the roadway adjacent to a fire hydrant.

11Mr. Ramsay addressed the City’s concern about how approving the requested variance would result in the loss of a City tree. He conceded that the City did not have an “opt-out” clause, through which individual owners could opt out of the City’s Policy of having one tree per house. Mr. Ramsay explained that because the Director of Parks Services could make a decision not to plant a tree at a given spot under By-law No. 78-2008, the Applicant would seek an exemption for the existing tree to be removed if the variance were approved, thereby facilitating the required curb cut. Mr. Ramsay concluded his explanation by emphasizing that he “hoped that the City would cooperate” with his client by allowing the tree, and the hydrant to be moved, and grant permission for a curb cut onto the street in order to operationalize the variance.

12Speaking to the relationship between the requested variance and the higher-level Provincial Policies, Mr. Ramsay opined that the variance did not “raise issues of a Provincial nature”. Asserting that the variance did not conflict with the higher-level Provincial Policies, Mr. Ramsay opined that the variance did not conflict with the Growth Plan, or the Region of Durham Official Plan (“ROP”), and had regard for matters of provincial interest, as stated in s. 2 of the Planning Act.

13Mr. Ramsay spoke to the relationship between the variance, and its ability to satisfy the purpose and intent of the City’s Official Plan (“OP”). He spoke to how the variance satisfied the intent and purpose of Policies 2.3.1.1 and 2.3.1.8 of the OP by virtue of being located within a stable residential neighbourhood, such that the proposed reduction of front yard landscape open space did not alter the built form, lot fabric, or overall character of the surrounding area, nor did it create land use conflicts.

14Mr. Ramsay highlighted how Policies 6.1.3 and 6.4.3 of the OP encouraged the preservation and efficient use of the existing housing stock in residential areas, and the promotion of residential intensification, and affordable housing, before explaining that the approval of the variance would result in the creation of an extra parking space that could be utilized by the residents of the accessory apartment that presently exists at the Subject Site, resulting in an efficient use of the existing land, as well as promoting residential intensification. On the basis of this explanation, he concluded that the proposal maintained the intent and purpose of Policies 6.1.3 and 6.4.3 of the OP.

15Mr. Ramsay next referenced Policy 6.4.7 and discussed how it listed requirements for matters such as off-street parking, and the limit of structural additions to ensure that changes to a building undergoing residential intensification did not adversely influence the amenities and character of the area. He argued that the proposed reduction of the landscaped open space from the ZBL requirement of 41.65 sq. m to 38.8 sq. m (or a decrease of 2.85 sq. m) does not adversely impact the amenities and character of the area, which results in the variance maintaining the intent and purpose of Policy 6.4.7 of the OP.

16Mr. Ramsay next discussed Policies 8.5.8.6 and 8.5.8.16 of the OP which refer specifically to the Taunton Planning Area, under which the Subject Lands fall, and explained how approving the variance will result in the facilitation of an accessory apartment, and broaden the type and tenure of housing available, as articulated in these Policies. Emphasizing that the proposed reduction in the amount of landscaped open space will not limit the proposed development from being integrated with the surrounding development, Mr. Ramsay concluded that the variance maintained the intent and purpose of these sections of the OP.

17On the basis of the above evidence, Mr. Ramsay concluded that the proposed variance satisfied the intent and purpose of the OP.

18Speaking to how the proposed variance satisfied the intent and purpose of the ZBL, Mr. Ramsay re-emphasized that the variance request resulted from the need to provide a parking spot for the existing accessory apartment in the basement of his house. Mr. Ramsay recited s. 5.12.1 of the ZBL, which discusses the circumstances governing the creation of accessory apartments in duplexes and demonstrated how the accessory apartment satisfied each and every clause of this section. Mr. Ramsay then explained that the Applicant proposes to locate the third parking spot, required for the accessory apartment, in front of the front porch on the existing interlocked paving space. He then highlighted the genesis of the variance, by demonstrating that this interlocked paving space would need to be excluded from the calculation of landscaped open space, because it was being used for parking purposes, resulting in the request for the variance for reduced open landscaped space. Asserting that the intent of the front yard landscaped open space to maintain an open character, and not be dominated by parking, Mr. Ramsay stated that the proposed reduction of 2.85 sq. m of landscaped open space will not alter the character of the site, because the lawn, flower beds, walkway and the enclosed porch, all of which contribute collectively to the character, will not be impacted in any way.

19On the basis of this evidence, Mr. Ramsay concluded that the proposed variance maintains the intent and purpose of the ZBL.

20Mr. Ramsay opined that the variance is minor because the strip of landscaping impacted by the variance is insignificant, because it is 43 centimetres (“cm”) in width from the front property to the porch, and 32 cm in length from the front property line to the garage, resulting in a patch no more than 2.85 sq. m in size. He said that as a consequence of its small size, the reduction in landscaping does not result in adverse impacts on “the abutting property, passerby or the streetscape”. Based on this evidence, he concluded that the variance is minor.

21Mr. Ramsay spoke to how approving the requested variance would result in the facilitation of an accessory apartment, which contributes to the supply and variety of housing in the community and increase housing stock, without changes to the built form, lot fabric, or overall character of the community. Based on this evidence, Mr. Ramsay concluded that the requested variance is desirable, and appropriate for the development of the land.

22In response to a question from the Tribunal about any conditions to be imposed if the variance were approved, Mr. Ramsay stated that his preference was that no conditions be imposed, but that he “could live with the condition imposed by the COA, which was to install a physical barrier to the satisfaction of the City of Oshawa to limit the interlocked area that may be utilized for parking vehicles”.

23By way of cross-examining Mr. Ramsay, Ms. Mayhew-Hammond asked if the City had clear policies on tree planting which had to be followed when considering the planting of trees, to which he replied that he would “balk at the suggestion of the policies being clear”, because in his experience, there was a difference between how the City policies were spelt out, and how they were applied, as exemplified by the City Report relevant to this Appeal. However, Mr. Ramsay agreed with Ms. Mayhew-Hammond’s suggestion that the aforementioned differences between theory and practice could be attributed to a “timing difference”, because the Report was written in 2021, while the policies referred reflected updates as of 2024. With respect to Mr. Ramsay’s reliance on s. 7.2 of the Oshawa Tree By-law when discussing relocation of the tree, Ms. Mayhew-Hammond questioned the relevance of this policy, because it referred to trees that had not yet been planted, as opposed to the tree of interest to this Appeal, which had been planted, but needed to be relocated. Mr. Ramsay responded that the Policy was relevant because it highlighted a degree of flexibility about the location of trees from the City’s perspective and moving their location where appropriate. When Ms. Mayhew-Hammond discussed s. 7.3 and 7.4 of the Tree By-law, which speak to trees which are damaged, or at risk of decaying, Mr. Ramsay prefaced his answer by saying that he did not profess to be an expert arborist, and that he intended to provide expert testimony solely in the discipline of planning. However, he emphasized that there was no “explicit” authority in the Tree By-law for trees to be removed at the request of the owner, but suggested there was “implicit authority” for the Director to consider requests from residents. Mr. Ramsay also agreed with Ms. Mayhew-Hammond that if the tree could not be removed, the boulevard could not be widened, resulting in the newly created parking space being inaccessible from the road.

24Ms. Mayhew-Hammond showed Mr. Ramsay pictures taken by City staff which demonstrated that cars were currently being parked on the paved space and asked him to confirm that the space was already being used to park cars, Mr. Ramsay insisted that based on his experience, the cemented portion was presently not used for parking purposes. Mr. Ramsay agreed with Ms. Mayhew-Hammond that without the relocation of stairs leading to the secondary apartment downstairs, there would not be enough space for the parking of the third car. He explained that his client had not relocated the stairs, nor had he enclosed the space in front of the house with a barrier, as directed in the COA decision, because of the City’s appeal of the decision to this Tribunal. He added that both conditions would be complied with if the Tribunal approved the variance.

25When Ms. Mayhew-Hammond suggested to Mr. Ramsay that contrary to his evidence, the removal of the tree on the municipal boulevard would violate Policy 6.4.4(d) of the OP, which advised against the removal of trees with a fully developed canopy, the latter asked to be shown pictures of the tree in question in order to understand if it truly had a fully developed canopy, as alleged by the City. After the photograph was exhibited, Mr. Ramsay insisted that the tree did not exemplify a tree with a rich canopy, which is central to the application of Policy 6.4.4 (d), and concluded that its removal did not contravene the OP. When Ms. Mayhew-Hammond suggested that an approval of the variance will result in the intent and purpose of Policy 6.4.6 (d) not being maintained as a result of concerns of the loss of street parking, Mr. Ramsay was resolute that in his interpretation of the said policy as a trained planner, “street parking is an issue that deserves to be considered, but is not central to the determination of the intent of the policy”. When Ms. Mayhew-Hammond linked the issue of the possible loss of street parking to contradicting the ZBL, Mr. Ramsay insisted that the ZBL did not have any requirements for street parking, which he characterized as a “courtesy that extended beyond the ZBL”. However, he agreed with Ms. Mayhew-Hammond that to the best of his knowledge, no applications involving accessory apartments had been approved by the City if the associated parking spots did not have direct access to the street.

THE CITY’S EVIDENCE

26Four Witnesses provided evidence on behalf of the City: Ms. Erika Kohek in the discipline of land use planning, Mr. Brent Varty, in the area of municipal law enforcement, Mr. Phil Laurin in the area of traffic management, and Mr. Dean Norman in the area of forestry.

27Ms. Kohek, a Senior Planner with the City, was recognized as an Expert Witness in the discipline of land use planning. After confirming that the proposal is consistent with the policies of the PPS and the Growth Plan, Ms. Kohek stated that both the ROP and the OP are applicable to this Appeal. She explained that the purpose of the ROP is to guide growth and development, while establishing a future development pattern, amidst the simultaneous articulation of goals, policies and mechanisms to do so. The Tribunal notes that she did not express an explicit opinion about the relationship between the variance, and the ROP.

28Speaking next to the question of whether the variance maintains the intent and purpose of the OP, Ms. Kohek referenced Policies 6.4.1, 6.4.2, 6.4.3, 6.4.4 (b) and 6.4.6 (a) to explain how residential intensification is encouraged to address the issue of affordable housing and make better use of existing municipal services. However, she emphasized that the achievement of affordable housing cannot happen at the cost of the loss of mature trees, and tree canopy where possible, and dwelled on how the variance would become functional if and only if a mature tree and the fire hydrant were removed or relocated. Ms. Kohek explained and expanded on the importance of preserving street parking and questioned if approving the variance could be accomplished without negatively impacting the available street parking. After suggesting that a ZBA may be required to address the reduction in street parking, she suggested that the variance be refused even if it resulted in residential intensification, because the resulting impact of a ZBA could not be considered to be minor.

29Ms. Kohek then referenced Policy 6.4.7 of the OP, and addressed its requirements for matters such as off-street parking to ensure that residential intensification does not adversely influence the amenities and character of the area and added that the requirements for off street parking be applied through the ZBL. She reiterated that the promotion of intensification could not happen at the cost of violating criteria for the provision of appropriate off-street parking and concluded that the requested variance did not satisfy the intent and purpose of the OP.

30Speaking to whether the requested variance maintained the intent and purpose of the ZBL, Ms. Kohek stated that the intent of the minimum landscaped open space requirement is to ensure that yards facing public streets are not dominated by parking, and to ensure a harmonious balance between parking and landscaping along the streetscape. Critiquing the proposed placement of the parking space in the Applicant’s proposal, Ms. Kohek reiterated the City’s concern about how the placement of the third parking space in the space suggested by the Applicant, requires a portion of the intended parking space, as well as a portion of the interlocked area intended for a pedestrian pathway, to be used instead for parking purposes, and concluded that this approach did not maintain the purpose and intent of the ZBL. Ms. Kohek explained that parking two cars in the front yard of the Site would result in tandem parking and emphasized that the ZBL did not prescribe tandem parking for separate dwelling units on the same property, because of its emphasis on parallel parking, because this would allow each car an opportunity to manoeuver onto and from the street independent of each other.

31Ms. Kohek said that the widened portion of the interlocking stones, which lies beyond the portion used as a driveway and parking area, is considered a pedestrian walkway under the ZBL and constitutes landscaped open space which cannot be used for parking. She asserted that if the variance were approved, the hardscaped area of the front yard (including porch, stairs and all interlocked stone) would increase to 83.7% of the total space in the front yard instead of the 50% permitted under the ZBL and concluded that the variance did not maintain the intent and purpose of the ZBL.

32Discussing the desirability of the proposed variance for appropriate development of the Site, Ms. Kohek opined that while accessory apartments can generally be desirable for the use and development of the property, the minimum landscaped open space and parking requirements must be satisfied such that the Site continues to fit into the streetscape and general neighbourhood. She asserted that in this case, an approval of the variance would adversely impact the character of the street, because greenery in the front yard would be replaced by cemented space, such that the cemented space would overwhelm green space and a preponderance of the former would be visible from the public space. She also expressed concern that the approval of this variance could trigger a wave of similar applications on other properties adjacent to the Site, such that the cumulative impact would result in significant changes to the streetscape. She also discussed concerns about how a vehicle utilizing the proposed parking space would be unable to access the driveway apron in the absence of excessive manoeuvering, or potential damage to the City boulevard. Ms. Kohek concluded that the character of the street would be impacted negatively by any of the aforementioned changes and the possible elimination of City owned street tree, on the basis of which she concluded that the proposed variance was not appropriate for the development of the Site.

33Speaking to the question about whether the variance is minor, Ms. Kohek stated that both the size and impact of the variance had to be considered to determine the result. She expressed concern that the impact of creating a third parking space that is not directly accessible to the street as a result of the inability to widen the driveway apron is a “significant departure” from maintaining the intent of both the ZBL and OP, on the basis of which she concluded that the requested variance is not minor.

34On the basis of the above evidence, Ms. Kohek concluded that the requested variance did not satisfy any of the four tests under s. 45.1 of the Act and recommended that the variance be refused by the Tribunal.

35When cross-examined, Ms. Kohek disagreed with Ms. Whyte’s question about the possibility for the Applicant to remove the existing tree, and replant it at a different location, because the City could not permit grown trees to be uprooted and replaced as per the residents’ preferences. She responded in the negative about the possibility of addressing the City’s concerns regarding accessing the main street through the use of an “inclined driveway” (i.e., building the driveway at an angle as opposed to a right angle to access the street). When Ms. Whyte pointed out to Ms. Kohek that her Witness Statement did not state a firm opinion about the relationship between the variance and the ROP she replied that irrespective of whether or not the variance may have met the intent and purpose of the ROP, it did not meet the intent and purpose of the OP. When Ms. Whyte asked Ms. Kohek a hypothetical about the appropriateness of using the third spot on the driveway for parking, without obtaining a curb cut “were it not for the accessory apartment”, the latter replied with “technically, yes”.

36The next Witness to testify was Mr. Laurin, the Superintendent of Road Operations for the City, who was recognized as an expert in the discipline of Traffic management/Road Operations. Mr. Laurin’s testimony dwelt on the importance of getting a curb cut in order to widen the existing driveway, which is necessary for the parked cars to be able to pull in and pull out of the parking pad independent of each other. After explaining the process to be undertaken by residents to get permission for a curb cut from the City, Mr. Laurin concluded that should the Applicant apply for a curb cut to widen the driveway at the Subject Site, the application would have been denied for the following reasons:

• Property does not have the required depth of 5.75 m from the front step (Zoning By-law No. 39.4.2 (Tab 11))

• Property does not have the required width of 2.75 m for a full parking spot (Zoning By-law No. 39.4.1 & 39.9.1 (Tab 11))

• Tree location would not provide a minimum 1 m away from any above ground utilities or boulevard trees.

37Mr. Norman, the Supervisor of Parks and Forestry at the City, testified next. After being recognized as an expert in the discipline of forestry, Mr. Norman recited the City’s policies on planting of trees, asserted that there was a need for a 1:1 ratio between planted trees and houses. He said that in the case of the Site, the City planted a Northern Hackberry tree on the boulevard in 2013, and added that the tree was in good health.

38Describing the benefits of trees, and their contributions to urban canopy, Mr. Norman stated that the the City aims to increase the tree canopy for its citizens, because of its benefits, which include oxygen production, pollution reduction, because of a plethora of benefits, such as prevention of soil erosion, provision of habitats for wildlife, and promotion of a number of desirable strategic goals, including carbon sequestering, combat climate change, and improvement of water quality. Mr. Norman opined that the tree canopy would beautify the community and result in the increase of property values and decrease heating and cooling costs for the community residents. He said that the existing tree was originally planted by the City in 2013, and that the relocation of the tree would cause undue stress and likely cause the tree to die. He asserted that the tree “has established itself in its environment and there is no physical way to successfully relocate it.” On the basis of this evidence, Mr. Norman concluded that the variance should be refused.

39Mr. Varty, a Manager with the City’s Municipal Law Enforcement Services, was recognized as an Expert in the discipline of Traffic Services and Parking. After emphasizing that the ZBL requires 50% of the front yard space to be maintained as landscaped open space, Mr. Varty spoke to how the ZBL required at least one parking space for each dwelling unit on the lot to be directly accessible from a street, and that each parking space may provide tandem parking only in conjunction with other parking spaces assigned to the same dwelling unit. He then referenced the tree located on the boulevard abutting the Site, and highlighted how it would obstruct direct vehicle access to the proposed parking space from Rennie Street, which is the abutting road. Based on the need to remove the tree to facilitate direct access, he concluded that the variance request before the Tribunal did not meet the City’s expectation that a minimum of one parking space on the lot for the accessory unit needed to be directly accessible from the street. He opined that if the parking space did have direct access to Rennie Street, vehicles utilizing the proposed space would be likely to approach and park on an angle, possibly resulting in the use of and damage to the landscaped portions of the front yard and boulevard. On the basis of this evidence, Mr. Varty concluded that the variance was neither minor, nor did it represent appropriate development, and recommended that it not be approved.

ANALYSIS AND FINDINGS

40The Tribunal finds it important to explicate an important principle of adjudication to be relied on when making findings with respect to approving variances – namely, the identification and investigation of the impacts of a requested variance are not merely at the heart of the analysis resulting in findings, they constitute the entire corpus of analysis, to the exclusion of any other factor, including a consideration of the practical challenges of bringing the variance to fruition. The relationship between a given “variance” and its “impact” may be analogized to a given “cause”, and its “effect” respectively, such that the nexus between the two is demonstrable, and reasonably guaranteed on the basis of accepted planning principles.

41The “impact” on which the analysis focuses needs to be distinguished from “conditions”, which may need to be imposed on the approval of a variance in order to make the latter feasible and functional – in other words, the purpose of the condition is to prevent the approval of the variance from becoming infructuous. The “conditions” bridge the gap between the theoretical considerations that resulted in the approval of an analysis, and the practical issues that may prevent a variance from achieving its practical objective. From a sequential perspective, impacts are considered before a variance is approved, while conditions to be imposed do not have to be considered until after the variance has been approved. As a result of this approach, the Tribunal cannot emphasize enough that conditions to be imposed after a variance has been approved are to be excluded completely for the purpose of approving the same on the basis of planning based analysis.

42When the above principle is applied to the evidence tendered by the Parties in this Appeal, the Tribunal finds that the City’s evidence focuses on how the variance may be infructuous when operationalized, instead of the planning impact of the variance itself. The questions about the possible removal or relocation of a City owned tree, or the fire hydrant, are questions that arise if and only if the variance in question has been approved; the answers to these questions are irrelevant before the approval of the variance, and cannot be factored into the analysis to determine whether the variance should be approved, or refused. The City’s methodology of concluding that a variance should not be approved by focusing on the impracticality of the conditions required to operationalize the same inverts the analytical process upside down, and results in the cart being put before the horse.

43Based on the above analysis, the Tribunal accords no weight whatsoever to the evidence about the infeasibility of the removal of the City owned tree, or the fire hydrant that allegedly impedes a straightforward ingress or egress of cars parked in the parking space from accessing the street. As a result of excluding the appropriateness regarding the removal of the City owned tree from the analysis, it stands to reason to exclude the concerns about the loss of foliage if the variance were to be approved. Besides the issue of the possible loss of street parking meriting concern only if the variance were to be approved, the Tribunal notes that the availability of street parking is influenced, if not governed, by the City’s Traffic By-law which is outside the Tribunal’s jurisdiction. As a result of the above analysis, the issues of street parking, removal of trees and fire hydrants are excluded completely for the purpose of making findings.

44The Tribunal relies on the City’s evidence about how there is general agreement between the variance and the higher level Provincial Policies and finds that the variance is consistent with the higher level Provincial Policies because of their emphasis on utilizing existing housing to house more families through intensification. It reminds the Applicant that highlighting the gap between the higher-level Provincial Policies and the variance and arguing that the former are not relevant to the latter because of how wide the gap is, does not prove the conformity of the latter to the former, a finding that is important for the approval of the variance

45As such, the Tribunal places considerable weight on how the approval of this variance would result in the creation of a third parking spot at the Site, facilitating the residency for a tenant in the existing apartment in the basement. Such facilitation of extra living space in an existing house is consistent with higher level Provincial Policies, which are implemented through both the OP and ZBL.

46The Parties agreed that the OP is more relevant to making findings regarding the variance, than the ROP, because the former is “closer to the ground” on the basis of which the Tribunal’s analysis concentres on the former. The Tribunal finds that the approval of the variance is supported by Policies 6.1.3 and 6.4.3 of the OP, because these policies encourage the preservation and efficient use of the existing housing stock in residential areas, as well as the importance of encouraging residential intensification. In this case, approving the variance will result in the creation of a separate parking spot to be used by the inhabitants of the existing secondary unit.

47Given the Tribunal’s decision to not give any weight to concerns regarding the loss of trees and parking spots, the only relevant evidence provided by the City regarding the OP is the concern about how the look of the front yard would be discernably different from other houses on the street, if a third vehicle were parked in the front yard. The Tribunal prefers the Applicant’s evidence over the City’s evidence, because the loss of 2.85 sq. m of space in the front yard will not significantly impact the built form of the dwelling, lot fabric, yard landscaping, and overall character of the neighbourhood, factors which are central to the application of Policies 2.3.1.1 and 2.3.1.8 of the OP. As a result, the Tribunal finds that the variance maintains the intent and purpose of the OP.

48With respect to the question of whether the variance maintains the intent and purpose of the ZBL, the Tribunal accepts the Applicant’s evidence that the intent of the front yard landscaped open space is to maintain an open character, such that the former is not dominated by parking. The Applicant stated that the proposed reduction of 2.85 sq. m of landscaped open space will not alter the character of the Site, which is collectively impacted by the placement of flower beds, the walkway and the enclosed porch, in addition to the cars parked in the open space – the Tribunal finds that the landscaped open space is merely one component of a bigger collage.

49On the other hand, the City’s evidence focused on how two cars would have to be parked in tandem in the parking spot if the variance were approved, because the space in the parking spots is not wide enough to accommodate two cars parked in parallel. They argued convincingly that one car may have to be moved, in order for the other to access the street – while their concern makes logical sense, there is no evidence before the Tribunal to demonstrate that the notion of parking in tandem, in conjunction with the need for carefully manoeuvering the cars to successfully access the road, results in the intent and purpose of the ZBL not being maintained, notwithstanding the inconvenience to the drivers of the cars involved in this process. As a result, the Tribunal prefers the evidence of the Applicant, and agrees with them that the variance maintains the intent and purpose of the ZBL.

50A variance is considered minor based on is its cumulative impact, inclusive of quantitative and qualitative perspectives. While both Parties agree that an approval of the variance will result in the loss of 2.85 sq. m of green space, the Applicant argues that the loss of green space is not discernable from a pedestrian perspective, even if the lost green space is replaced by a cemented driveway, because the juxtaposition of the cemented and green spaces is what shapes the cumulative visual perception. The City’s evidence was that the loss of the green space would make the Site stand out like the proverbial sore thumb among its neighbours. The Tribunal disagrees with the City, because it finds that the removal of 2.85 sq. m of landscaped space magnifies the loss of a molehill into a mountain, and agrees with the evidence of the Applicant. As a result, it finds the variance to be minor.

51On the question of whether the variance constitutes appropriate development, the Tribunal agrees with the Applicant that approving the variance will facilitate an efficient use of the living space in the basement of the house at the Subject Site, without ushering in a hitherto unexperienced built form into this neighbourhood.

52On the other hand, the City’s evidence regarding the test of appropriate development was that the requested variance failed the test of appropriate development because it did not maintain the intent and purpose of the OP, as well as the ZBA. The Tribunal disagrees with the very approach of this methodology, because the four tests under s. 45.1 are mutually exclusive and require separate fulfillment by a given variance. The Panel finds it incorrect to extrapolate the variance’s failure to satisfy one test, into failing a completely different test under s. 45.1, and prefers the evidence of the Applicant – it consequently finds that the variance is appropriate for the development of the Site.

53On the basis of the above findings, the Tribunal finds that the variance should be approved.

54In terms of the conditions to be imposed, the Applicant was content with the condition imposed by the COA, regarding installing a physical barrier to demarcate that portion of the interlocked space at the front of the house for parking purposes.

55The Tribunal concurs with the submission of the City that it does not have jurisdiction to impose conditions regarding the removal of trees or fire hydrants to ensure direct access from the street onto the parking space created as a result of approving the variance in question – consequently, the Order makes no reference to their removal, nor relocation.

ORDER

56THE TRIBUNAL ORDERS THAT the Appeal is dismissed, and the following variance is authorized:

A minimum of 45.9% landscaped open space is permitted in the front yard, whereas a minimum 50% landscaped open space in the front yard is required by Zoning By-Law No. 60-94 for a semi-detached dwelling with an accessory apartment in a R2(3)(Residential) Zone.

57The following condition is imposed on the approval:

a) The Applicant shall install a physical barrier to the satisfaction of the City of Oshawa to limit the interlocked area to be utilized for parking vehicles.

“S. Gopikrishna”

S. GOPIKRISHNA

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.