Newstrom Investments Inc. v Richmond Hill (City), 2024 CanLII 102780

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2024

CASE NO(S).: OLT-24-000633

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

Applicant/Appellant: Newstrom Investments Inc.

Subject: Minor Variance

Description: To permit constructed pool and cabana

Reference Number: A041/23

Property Address: 41 Garden Avenue

Municipality/UT: Richmond Hill/York

OLT Case No: OLT-24-000633

OLT Lead Case No: OLT-24-000633

OLT Case Name: Newstrom Investments Inc. v Richmond Hill (City)

Heard: August 27, 2024 by video hearing

APPEARANCES:

Parties

Counsel

Newstrom Investments Inc.

Lee English

City of Richmond Hill

Carlton Thorne

DECISION DELIVERED BY MATHIEU E. QUESNEL and d. chipman AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This hearing was convened on August 27, 2024, to consider the appeal by Newstrom Investments Inc. (“Applicant/Appellant”), on the refusal of the City of Richmond Hill (“City”) Committee of Adjustment (“COA”) to grant a minor variance application pursuant to s. 45(12) of the Planning Act (“Act”).

2In 2023, the Applicant/Appellant, applied to the City for minor variances to legalize the as-built, but non-complying, accessory structures located in the rear yard of 41 Garden Avenue, in the City (“Subject Property”) including an in-ground swimming pool, covered bench, cabana and gazebo. As well, a reduction the front yard setback for the Subject Property was requested.

3On May 16, 2024, the COA considered the City Planning Staff recommending approval of the requested relief and approved the Application subject to the following Conditions:

1. That the variances pertain only to the request as submitted with the application.

2. That development be substantially in accordance with the sketch submitted with the application as required by Ontario Regulation 200/96, as amended, Section 5.25.

3. That the Applicant convey to the City, free of all costs, objects, structures, and encumbrances, the necessary road widening, determined by a legal survey, to establish: A widening through the frontage of 41 Garden Avenue is required (The City is protecting for a 26.0m Road Allowance). 13.0m from the legal centre line of the road is to be City owned. The deficient amount to be determined by an Ontario Land Surveyor and conveyed to the City.

Requested Variances

4In the 2023 Minor Variance application (“Application”) submitted to the City, the Applicant/Appellant was seeking:

1. to permit increased maximum lot coverage for all detached accessory structures from 5.00% to 6.60%.

2. to reduce minimum front yard setback from 9.14 metres (30.00 feet) to 6.21 metres (20.37 feet).

3. to increase maximum lot coverage for detached accessory structures including swimming pool from 10.00% to 10.90%

4. to increase maximum height of cabana from 2.75 metres (9.02 ft.) to 3.58 metres (11.74 feet).

5. to increase maximum height of a covered bench from 2.75 metres (9.02 feet) to 2.80 metres (9.18 feet).

6. to increase maximum wall height of a detached accessory structure (gazebo) from 2.44 metres (8.00 feet) to 2.67 metres (8.76 feet) to accommodate the pool and cabana.

5The Application was modified and the planning report submitted to the COA included the reduction of the front yard setback from 9.14 m (“m”) (30 feet) to 3.23 m (10.59 feet) considering the part of land (Part 1 on Plan 65R38334) that the City wanted to obtain as a road widening.

6In July 2018, a previous owner submitted an application for a minor variance in respect to the front yard setback and represents an “after the fact” request to legitimize the construction of a garage projecting from the main dwelling. Relief was requested to allow a front yard setback of 5.33 m (17.48 feet), whereas the By-law required 9.14 m (30 feet), a difference of 3.81 m (12.5 feet). The COA approved the relief sought and imposed a road widening condition. The conveyance of the part for the road widening to the City was never completed. Then the Subject Property was sold and a new application was made, and the request for the reduction of the front yard was included in this new Application and upon receipt of this new Application, the City administratively closed the previous file, prior to consideration of the new Application by the COA.

SITE AND CONTEXT

7The Subject Property is a newly constructed single detached dwelling as well as several accessory structures in the rear yard on a residential property. The lot frontage is 21.88 m by a depth of 93.90 m for a total 2032.16 square metres (“sq m”).

8The Subject Property is located on the south side of Garden Avenue, mid-block between Yonge Street and Pearson Avenue/Fairview Avenue. The Subject Property is legally described as ‘Lot 113, Registered Plan 1984, City of Richmond Hill’.

9The Subject Property is generally rectangular in shape and has a total area of approximately 2,032.6 sq m (+/- 0.5 acres), with a frontage of 21.88 m along Garden Avenue.

10The Subject Property is surrounded on all sides by detached residential lots.

11The Subject Property is located approximately 282 m from Yonge Street, along which York Region Transit/VIVA bus routes operate. Additionally, a number of local bus routes also operate along Garden Avenue past the Subject Property. Bus Stops are located at both Pearson Avenue and Yonge Street within walking distance of the Subject Property.

12Within the Zoning By-law No. 2523, as amended, the Subject Property is located within the Residential Second Density (R2) Zone.

13Within the York Regional Official Plan (“YROP”) the Subject Property is located within the Urban Area of the City.

14Within the Richmond Hill Official Plan (“RHOP”) the Subject Property is located within the Neighbourhood land use designation, which is to be predominantly used for low-rise residential uses, including single detached dwellings. The Neighbourhood land use policies permit a maximum building height of three storeys and require that the development be compatible with the character of the adjacent and surrounding area.

LEGISLATIVE TESTS

15The Tribunal’s authority to grant variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an Appellant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Appellant. The legislative tests require that the variances:

a. Maintain the general intent and purpose of the Official Plan (OP);

b. Maintain the general intent and purpose of the Zoning By-law (ZBL);

c. Be desirable for the appropriate development or use of the land, building or structure; and,

d. Be minor in nature.

THE HEARING

16The Applicant/Appellant advised the Tribunal that they intended on calling one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty forms for Adam Layton, Land Use Planner, which was provided in the Affidavit of Adam Layton, CMIP, RPP (Exhibit 2). Adam Layton was duly qualified to provide opinion evidence in his respective field.

17The City advised the Tribunal that they intended on calling two witnesses and provided the Curriculum Vitae and Acknowledgement of Expert Duty forms for Francesco Caparelli, Land Use Planner, and Attila Hertel, Transportation Engineer, which were provided in the Document Book (Exhibit 6). Both were duly qualified to provide opinion evidence in their respective fields.

18At the Hearing, both the Applicant/Appellant and the City agreed that the minor variances requested were acceptable and the only point of contention is the condition regarding the road widening requested by the City. Even though the parties agreed that the variances are acceptable, the Tribunal’s task in a hearing de novo is toreview the variances and conditions to ensure they meet the legislative tests and are reasonable..

19The following Exhibits were marked at the Hearing:

1. Affidavit of Service filed on August 19 2024;

2. Affidavit of Adam Layton;

3. Document Book of the Applicant / Appellant;

4. Visual Evidence of the Applicant / Appellant;

5. Book of authorities of the Applicant / Appellant;

6. Document Book of the City.

20The crux of the appeal relates to one of the conditions imposed by the COA. The Appellant does not agree with Condition No. 3 that requires the Appellant to convey to the City, free of all costs, objects, structures, and encumbrances, the necessary road widening, determined by a legal survey. The City requires 13.0 m from the legal centre line of the road to be City owned And any deficient amount must be determined by an Ontario Land Surveyor and conveyed to the City.

21It is the City’s position that it is agreeable to all the requested Variances but are requesting that all conditions imposed by the COA be included in the approval.

22The Applicant/Appellant is disputing that the request of the City is not reasonably related to the Requested Variances and that the City does not have the authority to request a gratuitous conveyance of a road widening through the condition as part of a minor variance application.

PLANNING EVIDENCE

Provincial Policy Statement, 2020 (“PPS”)

23The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, and whether they are consistent with the PPS.

24Mr. Layton testified that all the variances are consistent with the PPS citing that the PPS promotes the focus of urban growth and efficient use of municipal services in order to create sustainable living cities. He also indicated that the PPS clearly states that development on full municipal services is the preferred avenue by which urban development is to be accommodated and the utilization of the said services should be optimized.

25Mr. Layton concluded that the requested variances are modest in nature and thus are consistent with the PPS.

26Mr. Hertel and Mr. Caparelli both agreed and offered no additional contradictory evidence at the hearing with the respect to the variances consistency with the PPS.

27The Tribunal accepts the evidence of Mr. Layton with respect to the requested minor variances consistency with the PPS.

GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE (“Growth Plan”)

28The Growth Plan outlines policies for managing and directing where and how growth should occur within the Greater Golden Horseshoe. All decisions in respect of the exercise of any authority that affects a planning matter are required to conform to the Growth Plan.

29The Subject Property is located within the City of Richmond Hill built boundary. Urban development is permitted within the built boundary.

30Mr. Layton testified that the requested minor variances would legalize the as-built, but non-complying, accessory structures on the Subject Property, representing reinvestment and renewal within the existing community. The dwelling makes efficient use of existing municipal infrastructure, while also being constructed to more modern standards and codes.

31The proximity of the York Region Transit/VIVA bus routes encourages residents to utilize alternative modes of transportation.

32It is Mr. Layton’s opinion that the requested minor variances are modest in nature and conform to the policies of the Growth Plan.

33Mr. Hertel and Mr. Caparelli both agreed and offered no additional contradictory evidence at the hearing with the respect to the variances conformity with the Growth Plan.

34The Tribunal accepts the evidence of Mr. Layton with respect to the requested minor variances conformity with the Growth Plan.

REGION OF YORK OFFICIAL PLAN (YROP)

35The YROP provides policy direction for how the growth and development in the Region of York shall be accommodated to 2051, while meeting the needs of existing residents and businesses.

36To the extent that the policies of the YROP apply given the matter at hand involves Minor Variance relief to legitimize a replacement single detached dwelling on an existing lot of record, the Tribunal was taken to the following Polices of relevance with regard to Complete and Healthy communities, and Aquifers: 2.1.4(a), 2.2.11, 2.3.2, 2.3.3, 2.3.13, 2.3.13(a), 3.3.12, 3.3.13, 4.1.1, 4.2.1, 4.2.2, 4.2.3(a).

37The Tribunal is satisfied that these policies are applicable and have been addressed. The Requested Variances are conform with the policies contained in the YROP.

THE FOUR TESTS

Do the Variances meet the Intent and Purpose of the RHOP?

38The Subject Property is located within the Neighbourhood land use designation of the RHOP and the proposed single detached use is permitted.

39The Subject Property is also not located within a priority infill area, thus it is only the criteria of Policy 4.9.2(4) to be considered for the proposed development and requested relief. As no changes are to be made to the size of configuration of the existing lot, no relief from height provisions of the By-law are required, and as the proposed detached dwelling is a permitted use, provisions (a), (b), (c), (e), (h) and (i) of the Policy 4.9.2 (4) are not applicable. Additionally, as relief is only required for the front yard setback, the consideration of rear and side setbacks, as well as landscaped open space provisions are not relevant in this appeal.

40The setback from the existing building departs from the provisions of the By-law with respect to front yard setback, seeking a reduction form 9.14 m to 6.22 m. The intent of Policy 4.9.2 (4) is to encourage small scale infill development, compatible development with the neighbourhood and the development shall respect the character and physical context of the area.

41Mr. Layton opined that the request to reduce the front yard setback would still maintain the character of the area and be a “good fit” with the existing houses along the street.

42It was his overall opinion that the proposed variances meet the general intent and purpose of the RHOP.

43On behalf of the City, Mr. Caparelli and Mr. Hertel did not present contradictory evidence.

44The Tribunal accordingly finds that the Requested Variances meets the general intent and purpose of the RHOP.

Do the Variances meet the Intent and Purpose of the Zoning By-Law?

45The City zones this site as Residential Second Density (R2) Zone. In this zone, the relevant permitted uses are single detached dwellings and accessory structures, subject to specific lot and development standards.

46Mr. Layton referred to the City Staff Report to summarize the intent of the various provisions from which the Requested Variances are sought.

47The City Staff Report is part of the City Document Book at paragraph 2 of the Planning Comments at page 3 of 6 of the report indicate:

The intent of a minimum front yard setback provision is to ensure there is appropriate spacing within the required yard for landscaping, access, lot drainage, maintaining an appropriate streetscape and minimizing potential shadow/overlook impacts. The proposed front yard setback maintains the general intent of the Zoning By-law and is not expected to result in adverse impacts on adjacent properties or the usability of the subject lands or negatively impact the streetscape along Garden Avenue.

The intent of the maximum lot coverage provision for all detached accessory structures, as well as for all detached accessory structures including swimming pools is to control the maximum amount of building ground floor area that can cover a particular lot to ensure appropriate amenity and open space. Staff have reviewed the requested variances and are of the opinion that adequate amenity and open space is provided. Staff also note that similar proposals have been approved in the surrounding neighbourhood. In this regard, the proposed variances are considered appropriate.

The intent of a maximum height provision for a detached accessory structure (cabana and covered bench) and the maximum wall height for the detached accessory structure (gazebo) is to minimize the potential shadow and overlook impact, as well as ensuring the character of the surrounding neighbourhood is not negatively impacted. The request for increased height for accessory structures (gazebo, cabana and covered bench) are not anticipated to result in negative impacts to neighbouring properties and the surrounding area.

Staff are of the opinion that the proposed variances maintain the general intent and purpose of the Zoning By-law.

48All parties agreed with this part of the City Staff Report and offered no contradictory evidence.

49The Tribunal accordingly finds that the Requested Variances meet the intent and purpose of the City Zoning By-law.

Are the Variances desirable for the appropriate development or use of the land, building or structure?

50The City is requesting that the Requested Variances be approved with the conditions as imposed by the COA noted above.

51The Applicant/Appellant is requesting the Requested Variances be approved with Conditions 1 and 2 only, and requesting that the Tribunal not impost Condition 3 requiring a conveyance of land for the purpose of a road widening.

52The Tribunal heard from Mr. Hertel that the Requested Variances are desirable for the appropriate development or use of the land but that a condition for road widening was advisable.

53Mr. Hertel gave evidence regarding the transportation context within which the Subject Property is located. As part of that evidence, he indicated that the Subject Property is located approximately 300 m away from the Richmond Hill Centre Transit Oriented Community and that this area will experience significant growth in support of the Yonge North Subway Extension.

54Mr. Hertel testified that Garden Avenue is an important collector road within the City’s intensification strategy and that Garden Avenue has been identified as a collector road with a 26 m right-of-way since the 2010 City Official Plan.

55Mr. Hertel testified that the Subject Property and the Requested Variances directly contribute to the intensification on Garden Avenue. He testified that each development application contributes to the area’s overall planned intensification.

56Mr. Hertel also testified that the social amenities such as the constructed rear yard pools, gazebos and cabanas tend to lead to an increased frequency of events that generate additional visitor trips.

57Mr. Hertel gave his expert evidence and opinion that the 3 m right-of-way conveyance is an advisable condition in response to the requested minor variance and is required to support and achieve the City’s planned road network.

58Mr. Caparelli testified that the Requested Variances are desirable for the appropriate development or use of the land but also testified that the imposition of the road widening condition was appropriate and advisable.

59Mr. Layton opined that the test is meant to determine whether the Requested Variances would allow a building or structure to co-exist with existing or future adjacent uses in a harmonious manner.

60Mr. Layton testified that the nature of the relief is modest and would not impact the character of the area along Garden Avenue and the building and other structures would not create any privacy, overlook, or shadow concerns for adjacent properties to the extent that their back yards would be rendered un-useable.

61Mr. Layton is of the opinion that the Requested Variances are appropriate and can co-exist with the surrounding residences in a harmonious manner.

62The Tribunal agrees that the Requested Variances are desirable for the development or use of the land, building and structures.

Are the Variances considered Minor in nature?

63The evidence provided by Mr. Layton is that the requested Variances will not have an impact on lands beyond the Subject Property and would not pose harm to the character of the area or the continued use of the adjacent properties for their current or future purposes.

64Mr. Hertel and Mr. Caparelli did not offer additional evidence and agreed with the City Staff Report that was also agreeing that the Requested Variances are minor in nature.

65The Tribunal is satisfied that the requested Variances are minor in nature.

FINDINGS

66The Tribunal is satisfied with the evidence provided by Adam Layton through his testimony, the four tests have been satisfied and have resulted in evidence that adverse impacts will not occur with the granting of the Requested Variances.

67As for Condition No. 3, the City is requesting that the Tribunal impose a condition requesting the Appellant to convey to the City a piece of land for the purpose of a road widening, without compensation.

68Even though the language of s. 45(9) grants broad powers to the Tribunal to impose conditions, that power is limited. To that effect, in Texaco Canada v. Guelph (City) Committee of Adjustment, 1979 CarswellOnt 547 (“Texaco”), the Ontario Municipal Board (“OMB”) confirmed that a Committee of Adjustment has broad jurisdiction to impose conditions in a minor variance case, but such conditions must be reasonably related to the variance applied for.

69In Texaco, the OMB held that it was unreasonable to impose a condition that lands be dedicated for road widening purposes. The OMB wrote:

The application herein does not create a new lot increasing the density of population in the area and is wholly dissimilar from ministerial conditions which may be approved under s. 33(5)(b) of The Planning Act. There is here, in my view, no reasonable relationship between the request for these valuable lands to the relief required and condition 3, therefore, is entirely inappropriate.

70Texaco was also cited with approval by the Tribunal in Courtney Valley Estate Inc. v Whitchurch-Stouffville (Town), 2022 CarswellOnt 5596, (“Courtney”). In Courtney the Tribunal cited Texaco to confirm that a condition imposed must have a reasonable relationship to the Minor Variance requested. In Courtney, the Tribunal refused to impose a cost sharing condition sought by the Appellants that did not relate to the minor variance requested.

71In another decision from the OMB, De Carolis Farms Ltd., Re, 1992 CarswellOnt 4571, (“De Carolis”), the OMB also indicated that it was not persuaded that it had the authority to impose a road widening condition in granting a minor variance.

72The City submitted case law to support their position that a road widening condition can be applied.

73Upon the whole of the evidence regarding the Requested Variances and the conditions imposed by the COA, the Tribunal finds that all Requested Variances are desirable and suitable for the use of land as described. The Tribunal does not support Condition No. 3 regarding the road widening. The Tribunal finds that the evidence does not support the conveyance of the Appellant’s land at no cost to the City for the purposes of future road widening as it has no reasonable relationship to any of the Requested Variances.

ORDER

74THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 2523 are authorized subject to the following conditions:

1. That the variances pertain only to the request as submitted with the application.

2. That development be substantially in accordance with the sketch submitted with the application as required by Ontario Regulation 200/96, as amended, Section 5.25

“Mathieu E. Quesnel”

MATHIEU E. QUESNEL

MEMBER

“D. Chipman”

D. CHIPMAN

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.```