Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 04, 2024
CASE NO(S).: OLT-23-001080
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Jawaid Virani
Subject: Minor Variance
Description: To permit a two-storey detached dwelling with a larger lot coverage and larger floor coverage
Reference Number: 540-02-A-115/2022
Property Address: 423 Pine Cove Road
Municipality/UT: Burlington/Halton R
OLT Case No.: OLT-23-001080
OLT Case Name: Jawaid Virani v. Burlington (City)
Heard: February 13, 2024 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jawaid Virani | Tabrez Mahzer* |
| City of Burlington | Andrea Peebles |
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER CAMPBELL ON FEBRUARY 13, 2024, AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision arises from a hearing (the “Hearing”) before the Ontario Land Tribunal (the “Tribunal”) regarding an appeal by Jawaid Virani (the “Appellant”) of a decision by the Committee of Adjustment (the “Committee”) of the City of Burlington for refusing a minor variance application related to the construction of a two-storey detached dwelling with attached garage, rear covered deck and rear balcony, located at 423 Pine Cove Road in Burlington, Ontario (the “Property”).
BACKGROUND
2The Property currently houses a single storey dwelling which would be demolished in connection with the proposed development of a new two-storey dwelling with an attached garage. The Property is zoned as R3.1, Low Density Residential. Accordingly, it is located within a designated area prescribed by Zoning By-Law 2020, as amended (the “Zoning By-Law”), which sets forth, amongst other restrictions, the following limitations for a two-storey dwelling with an attached garage: (i) maximum lot coverage of 25%; and (ii) a maximum permitted floor area ratio of 0.45:1. The Zoning By-Law also prohibits balconies located above the first storey on a wall facing the side and rear yard of detached dwellings.
3The Appellant submitted a minor variance application to the Committee for the proposed development, seeking the following relief from the requirements of the Zoning By-Law:
(i) To permit lot coverage of 31% instead of the maximum permitted 25% (“Variance 1”);
(ii) To permit a floor area ratio of 0.55:1 instead of the maximum permitted ratio of 0.45:1 (“Variance 2”); and
(iii) To permit a 9.4m2 balcony located above the first storey on a wall facing the side and rear yard (“Variance 3”).
4The test for the granting of the requested relief is set forth in Section 45 of the Planning Act, RSO 1990, c. P.13, as amended (the “Planning Act”), the relevant provisions of which are as follows:
45 (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.
(1.0.1) The committee of adjustment shall authorize a minor variance under subsection (1) only if, in addition to satisfying the requirements of that subsection, the minor variance conforms with,
(a) the prescribed criteria, if any; and
(b) the criteria established by the local municipality by by-law, if any.
5The Committee conducted a hearing on August 16, 2023 to consider the Appellant’s minor variance application. Prior to the hearing, the Appellant withdrew its request for Variance 3, such that the Committee was only required to render a decision with respect to Variances 1 and 2. In connection with the hearing, the Appellant submitted a staff report dated October 31, 2022 prepared by E. Shacklette (the “Staff Report”) which found that each of Variances 1 and 2 met the four-part test set out in section 45 of the Planning Act, provided that that the number of windows on the second storey be reduced to two windows of a similar or lesser size than those currently proposed. The Staff Report further recommended approval of Variances 1 and 2, subject only to such condition regarding the second storey windows.
6Following submissions on behalf of the Appellant and several concerned neighbours who were opposed to the development, the Committee refused the Appellant’s application for Variances 1 and 2 on the following grounds:
(i) The general intent and purpose of the Official Plan will not be maintained;
(ii) The general intent and purpose of the Zoning By-Law will not be maintained;
(iii) Variances 1 and 2 are not desirable for the appropriate development or use of the Property; and
(iv) The requested variances are not minor.
In addition to the foregoing, the Committee noted that Variances 1 and 2 would result in over-development of the Property; the proposed development was neither a reasonable nor an appropriate request; the proposed residential dwelling was neither desirable nor an appropriate use of the Property; and the proposed development was not a good development proposal for the City of Burlington.
JOINT SUBMISSIONS
7Following the refusal by the Committee to approve Variances 1 and 2, the parties engaged in further discussions concerning the proposed development. As a result, the parties were able to reach an agreement and at the Hearing, both the Appellant and City jointly submitted to the Tribunal that Variances 1 and 2 be approved, subject only to the condition that the number of windows on the second storey of the north side of the proposed dwelling be reduced to two (2), each with an area of no more than 10m2, to the satisfaction of City planning staff (the “Condition”). Each of the Appellant and the City also confirmed that they were in agreement with: (i) the content of, and recommendations set forth in, the Planning Report; and (ii) the conclusion that Variances 1 and 2, subject to the Condition, would meet the four-part test set forth in Section 45 of the Planning Act.
ANALYSIS
8While the Appellant and the City have reached an amicable agreement in this case, the role of the Tribunal in such circumstances is not simply to “rubber stamp” arrangements negotiated between parties, but to conduct an objective and thorough analysis of the issues to ensure that any settlement complies with applicable law and policy. In this case, such analysis must consider whether Variances 1 and 2, if approved subject to the Condition, would meet the four-part test set forth in Section 45(1) of the Planning Act, in compliance with any applicable criteria established by the City of Burlington. The sole evidence before the Tribunal in this regard is the Staff Report, which contains a detailed study, including the following analysis and conclusions of staff:
(i) Subject to the condition of reducing the number of windows on the second storey to two (2), Variances 1 and 2 would maintain the general intent and purpose of each of the Official Plan and the Zoning By-Law. This conclusion is based, in part, on policy guidance concerning compatibility set forth in Part II, Sections 6.0 (Design) and 6.5 (Design Guideline Policies) of the Official Plan. The Property is located in an established neighbourhood and within a designated area which utilizes enhanced zoning regulations such as lot coverage and floor area ratios to manage the integration of new development within the existing neighbourhood. The neighbourhood itself contains a mix of both newer and older one-storey and two-storey dwellings, many of which have been re-developed, and staff is of the view that it is reasonable to expect re-development in the area. Staff is also of the view that the risk of over-development of the Property as a result of Variances 1 and 2 is mitigated by various other factors associated with the build including setback, driveway length, roof overhang, height and garage width which are all in compliance with the Zoning By-Law. Accordingly, Staff is of the view that Variances 1 and 2 would contribute to a development which is compatible with, and an appropriate use of, the subject lands.
(ii) Variances 1 and 2 are desirable for the appropriate development or use of the Property. Staff again notes that the Property is located in a neighbourhood that consists of a mix of both newer and older homes, and that there is no requirement that the new construction be the same as other houses in the area, but rather that it be compatible. In this regard, Staff is of the view that despite the greater lot coverage and floor area ratio, the proposal will reflect current styles of development in the surrounding area and will be compatible with the existing and emerging character of the area.
(iii) Variances 1 and 2 are minor in nature due to compliance of the development with other zoning requirements such as height, setbacks and building depth which mitigate the overall effect of the requested variances.
9The Tribunal accepts the analysis and conclusions set forth in the Staff Report with respect to Variances 1 and 2, and finds that if granted subject to the Condition, they would indeed meet the four-part test set forth in Section 45 of the Planning Act.
ORDER
10The Tribunal orders that, with respect to the construction of a two-storey detached dwelling with attached garage located at 423 Pine Cove Road in Burlington, Ontario, the application by the Appellant for the following minor variances from the City of Burlington Zoning By-Law 2020, as amended, are hereby approved:
(i) To permit lot coverage of 31% instead of the maximum permitted lot coverage of 25% for a two-storey dwelling with an attached garage; and
(ii) To permit a floor area ratio of 0.55:1 instead of the maximum permitted ratio of 0.45:1 for a two-storey dwelling with an attached garage,
in each case subject to the condition that the number windows on the second storey of the north side of the proposed dwelling be reduced to two (2), each with an area of no more than 10m2, to the satisfaction of planning staff of the City of Burlington.
“Jennifer Campbell”
JENNIFER CAMPBELL
MEMBER
Ontario Land Tribunal
Website: 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.