Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 10, 2024 CASE NO(S).: OLT-23-001097

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

Applicant and Appellant: 2772759 Ontario Inc. Subject: Minor Variance Description: Variances requested to permit an apartment building Reference Number: A.109/23 Property Address: 1076 Gainsborough Road Municipality/UT: London OLT Case No.:: OLT-23-001097 OLT Case Name: 2772759 Ontario Inc. v. London (City)

Heard: February 13, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
2772759 Ontario Inc.	D. Murphy
City of London	A. Hovius

DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL

LINK TO ORDER

BACKGROUND

12772759 Ontario Inc. (“Appellant”) is the owner of 1076 Gainsborough Road (“Site”) located in the City of London (“City”). The Appellant applied to the City’s Committee of Adjustment (“COA”) for the approval of three variances to incorporate an extra residential unit on the first floor of an Apartment Complex under construction at the Site. It is also pertinent to note that the Apartment Complex received Site Plan Approval (“SPA”) in October 2021. The COA heard the matter on October 4, 2023, and approved all of the requested variances, and imposed a condition requiring the Appellant to “erect a fence subject to section 4.1 of the Fence By-law, with a height of 2.13 metres (“m”) (7 feet)”.

2On October 2, 2023, the Appellant appealed the COA’s decision to the Ontario Land Tribunal (“Tribunal”), asking that the requested variances be approved, but with the removal of the condition imposed by the COA. On February 12, 2024, the City wrote to the Tribunal, indicating that it would not participate in the Appeal before the Tribunal. There were no requests for Party or Participant status, either before, or at the commencement of the Hearing.

LEGISLATIVE FRAMEWORK

3Section 45(1) of the Planning Act (“Act”) requires that variances meet four tests, being:

• 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.

VARIANCES BEFORE THE TRIBUNAL

4The Appellant requested approval of the following variances:

(1) To permit a density of 91 units per hectare (“u/ha”) whereas 90 u/ha is the maximum permitted; (2) To permit 54 parking spaces whereas 55 minimum are required; and (3) To permit 24 long-term bicycle parking spaces whereas 30 minimum are required.

EVIDENCE

5At the Hearing completed on Tuesday, February 13, 2024, the Appellant called Mr. Dan Burns, a Registered Professional Planner. After being affirmed and recognized as an Expert in the discipline of land use planning, Mr. Burns emphasized that the reason why the COA’s decision was being appealed, notwithstanding the approval of the same variances that were before the Tribunal, was that the Appellant wanted a waiver of the condition, imposed by the COA, which required the construction of a fence on the perimeter surrounding the Site. He described the development proposal, which looked to construct a four floor, mixed-use, apartment complex with a frontage of 38.7 m facing Gainsborough Road, depth of 105.4 m, and an area of 3967.2 square metres (“m²”) and was in the process of being constructed when the COA considered the application. The Site is zoned “Neighbourhoods” under the City’s Official Plan (“OP”), and has a Site Specific Zoning BDC(33)H15.5D90, under the City’s Business District Commercial (“BDC”) Special Provision.

6Mr. Burns said that the existing development, currently under construction, includes a single four-storey mixed-use building containing a total of 32 dwelling units and 290 m² with a total of 54 parking spaces located at the rear of the Site.

7Mr. Burns described how vehicular and pedestrian circulation is provided via a new access driveway along the west property line from Gainsborough Road, and how private amenity spaces are proposed in the form of balconies. He reiterated that the Site was rezoned in July 2019 to a BDC Special Provision (BDC(33)H15.5D90) Zone, and received SPA in October 2023. He described how the Appellant had identified “building efficiencies” which would allow for an additional dwelling unit on the main floor, replacing an internal exercise room, bringing the total number of residential dwelling units to 33. The consequential increase in the number of units triggered an increase in density, requiring an Application to the COA for a variance to the maximum density. This request also resulted in the need for two more variances, including a reduction in indoor bicycle parking, and the reduction of one vehicular parking space.

8Mr. Burns spoke to how no comments had been received from City staff when the original COA application was submitted to them, and how the Transportation department supported the requested variances for 54 vehicular parking spaces and 24 bicycle parking spaces when 55 spaces and 30 spaces are the minimum required under the City’s Zoning.

9Mr. Burns spoke to the relationship between the requested variances and the four tests under s. 45(1) of the Act. Addressing the question of how the variance satisfied the intent and purpose of the OP, Mr. Burns said that; the Site is classified as “Main Street Place Type” along a Civic Boulevard/Main Street in accordance with Maps provided in the OP. He said that as per Policy 908 of the OP, mixed-use buildings are a permitted use on the property, and are encouraged in the Main Street Place Type. He explained how the ongoing construction of the Site to develop the mixed-use apartment building, is supported by the Form and Intensity policies in the Main Street Place Type which encourages intensification, while ensuring that proposals are appropriate within their neighbourhoods. He asserted that the proposed addition of a single residential unit to an already constructed mixed-use building will further provide for a compact/economical form of residential intensification that supports the City’s goals for residential intensification within Main Street Place Types along Civic Boulevards. According to Mr. Burns, this approach to intensification would not trigger major exterior changes to the building, or the existing Site layout, while simultaneously contributing positively to the diversification of the housing stock in this growing neighbourhood. He explained how the proposed development will not introduce any negative impacts on neighbouring properties. Based on this evidence, Mr. Burns concluded that the requested variances maintain the purpose and general intent of the City’s OP by providing creative opportunities for further intensification within the Main Street Place Type along a Civic Boulevard.

10Mr. Burns discussed how each of the variances satisfied the intent and purpose of the Zoning By-law (“ZBL”). Speaking to the variance asking for increasing density, he said that BDC zones regulate commercial and mixed-use developments. However, to establish density for a mixed-use apartment building, a site-specific re-zoning is required to determine the appropriateness of the proposal in-line with all other policies and regulations. Through the initial re-zoning application (2019), a density permission of 90 u/ha was established to achieve the intent of the applicable policies of the OP (dating back to 1989), which permitted medium-to-high density development within Main Street Commercial Corridors. Given the size of the lot (0.39 hectares (“ha”)), the proposed addition of one dwelling unit will result in a density of 91 u/ha. Mr. Burns claimed that from a numerical perspective, the density increase represents only a minor change from the permitted density of the site specific BDC zone of 90 u/ha. After highlighting how the request in an additional increase in density would not trigger any additional site-related variances on other key measures of residential intensity (i.e., landscaped open space, lot coverage, etc..) because the additional unit is fully within the confines of the building, Mr. Burns concluded that the proposed variance to allow for 91 u/ha does not conflict with the overall intent and purpose of the site specific BDC Special Provision (BDC(33)H15.5D90) Zone.

11Mr. Burns spoke next to the variance respecting the reduction of overall parking. He described how at the time of the initial re-zoning application (2019), a special Site Specific provision was established to reduce the parking requirements from 70 spaces to 55 spaces, which had been justified through a parking study. He then described how in 2022, the City established a Site specific BDC(BDC(33)) Zone which established a blanket requirement of 55 parking spaces, irrespective of the use or density on the Site, followed by another reduction through the SPA process, where the number of parking spaces was reduced from 55 to 54, to increase site functionality as it relates to on-site waste collection. He opined that the creation of an extra residential unit would not result in a significant increase in the need for parking spaces, and asserted that 54 parking spaces would be adequate, even if the residential units increased from 32 to 33.

12Lastly, Mr. Burns spoke to the variance respecting the bicycle parking. He said that in April 2022, the SPA approved the construction of a 32-unit mixed-use apartment building, which is currently under construction. At the time of the SPA, the requirement of long-term bicycle parking was 0.75 spaces/dwelling unit, resulting in 24 long term spaces for the 32-unit building. According to Mr. Burns, the 24 spaces provided for parking was excessive according to the standards prevalent in 2022, and was adequate to address the needs of short term parking because it could provide up to eight spaces, where only three were required. He then described how the City underwent a review of its off-street parking standards in 2022, resulting in changes to the required amounts of both vehicular and bicycle parking for new development. Mr. Burns theorized that as a result of the updated ZBL respecting the number of bicycle spaces resulting from the review, one parking space per dwelling unit would be required (separable into 0.9 spaces/dwelling unit intended for long-term storage, and 0.1 spaces/dwelling unit for short term), with a specific requirement of 30 long term spaces and four short term spaces for the Site. He asserted that as a result of the parking spaces being approved under the previous bicycle parking requirements, the bicycle parking deficiency between the 24 existing spaces, and the 34 required under the new ZBL would be “considered legal, non-conforming, with no possibility to provide sufficient additional space allocated to the long-term bicycle storage at the updated rate”.

13Mr. Burns added that notwithstanding his earlier argument about “legal, non-conforming space”, efforts have been made to include an extra space for an additional long term bicycle storage space, resulting in an adequate number of bicycle storage spaces to satisfy the ZBL requirement of 0.9 spaces/dwelling unit, and reminded the Tribunal that eight short term parking spaces have been provided when four were required. After asserting that the existing short- and long-term parking would be adequate to satisfy the actual need for long- and short-term parking, Mr. Burns stated that the request for 24 parking spaces should be permitted, as a result of what was approved under the ZBL requirements applicable when the Application was originally submitted.

14Based on the evidence presented in Paragraphs [10] and [13] above, Mr. Burns concluded that the requested variances satisfy the intent and purpose of By-law BDC (33)H15.5D90.

15Mr. Burns addressed how the requested variances are minor in nature. He said that the proposed variances result in the opportunity for one additional dwelling unit to be developed, within the under-construction mixed-use building beyond what is permitted as-of-right. He claimed that given the context of the area, and the Site’s capacity to accommodate all of the other needed functional elements, the proposed density increase is minor in nature, and emphasized that the inclusion of an additional dwelling unit on the main floor within the constructed mixed-use building, will not result in significant exterior modifications to the existing building, nor will its addition impact the approved Site layout. He concluded that as a result, the proposed increase in density and reduced vehicle and bicycle parking count will not introduce any negative impacts onto adjacent properties, nor will they negatively impact the streetscape character, and that the variance is minor in nature.

16Speaking to how the variances are appropriate for the development of the Site, Mr. Burns said that the proposed variances will enable the further intensification of an under-construction property within a growing neighbourhood by allowing an additional dwelling unit within a mixed-use building, which supports numerous Provincial and Local planning objectives around intensification and housing. He claimed that the development proposal represents a sensitive approach to residential intensification that introduces what he termed to be “gentle density” into this established neighbourhood. On this basis, Mr. Burns argued that the application is desirable for the orderly and appropriate use of the Site.

17In response to a question from the Tribunal about the relationship between the proposal and the higher-level Provincial Policies, Mr. Burns stated that the only applicable Provincial Policy was the Provincial Policy Statement 2020 (“PPS, 2020”). He explained briefly how the PPS, 2020 supports intensification, and how this proposal exemplified intensification through the inclusion of an extra residential unit.

18Lastly, Mr. Burns spoke to why there was no need to build a fence, as imposed by the COA through its decision dated August 4, 2023. He said that there was no conversation or discussion between the Appellant and the City regarding the need for a fence, with the result they were surprised at the imposition of such a condition when the decision was provided Mr. Burns said that fences are required as a safety measure, to demarcate the Site where construction is in progress, and prevent accidents, and added that in this case, the actual exterior of the Apartment Complex had been completed. He reiterated how the purpose of the application was to create an extra unit inside the existing Apartment Complex. He explained how none of the construction inside the building would have any impact whatsoever on the outside of the building and requested that the condition not be imposed.

REASONS AND ANALYSIS

19It is important to note that the purpose of the requested variances is to create an extra residential unit inside an existing Apartment Complex, which requires alterations to be made to the interior of an existing Apartment Complex, as opposed to the exterior of the building. It is also important to note that the Apartment Complex under construction has received SPA from the City - it needs to be observed that the Appellant was not required to build a fence outside the Apartment Complex as a safety measure. The requested variances, if authorized, result in the creation of an extra residential unit inside the Apartment Complex, which as noted earlier, is already in the process of being constructed. The Tribunal understands that the accommodation of an extra residential unit requires an increase to the density beyond what was approved through the SPA. The Appellant desires to make no changes to the available parking, as well as bicycle space, notwithstanding the addition of an extra residential unit, which in turn, requires further variances to the ZBL. The Tribunal therefore classifies the parking and the bicycle space related variances as “ancillary variances” for the purposes of analysis discussion.

20It is important to briefly address the relationship between the variances and PPS 2020, which supports intensification. The Tribunal finds that the increase in density from the allowable 90 u/ha to 91 u/ha, constitutes intensification, and consequently is consistent with the PPS, 2020.

21The evidence demonstrates that the building under construction is classifiable as “Mainstreet Area Form” and that the Intensity policies governing the Main Street Place Type encourage intensification, which in this case manifests itself in the addition of a single residential unit on the main floor to an already constructed mixed-use building. The Tribunal accepts the Appellant’s evidence and finds that the addition of a residential unit, resulting in a variance for 91 u/ha from 90 u/ha, is consistent with the City’s goals for residential intensification for buildings classified as “Main Street Place Types” located on roads classified as “Civic Boulevards” and consequently maintains the purpose and intent of the OP.

22The Tribunal reiterates its observation about the parking and bicycle related variances to be “ancillary variances” and notes that the Appellant did not draw its attention to any specific policies from the OP with respect to the requested variances for parking and bicycle space. Given the lack of reference to specific policies in the OP for the ancillary variances, the Tribunal finds it appropriate to follow any finding made on the causative variance and makes similar findings on the ancillary variances, because this logical approach results in a built form, as envisaged by the Appellant. As a result, the Tribunal finds that the variances respecting the parking and bicycle space maintain the intent and purpose of the OP, in light of the finding about the density variance in Paragraph [21] above.

23With respect to the relationship between the density variance and the ZBL, the Tribunal accepts the Appellant’s evidence that the increase from 32 to 33 residential units in the building, resulting in an increase of one residential unit on a 0.39 ha lot, and an increase from the allowable 90 u/ha to 91 u/ha, maintains the overall intent and purpose of the Site specific BDC Special Provision (BDC(33)H15.5D90) Zone. The requested change does not require any other changes to the Site, with specific reference to other measures of residential intensity (i.e., landscaped open space, lot coverage, etc..), because the additional unit is fully within the confines of the building. As a result, the Tribunal finds that the variance requesting density meets the intent and purpose of the ZBL.

24With respect to the variance for decreased parking, the evidence demonstrated that the Site specific BDC(BDC(33)) Zone established a blanket requirement of 55 parking spaces no matter of the use or density on the Site. The Tribunal also understands that through the SPA, the City approved a further reduction of parking spaces from 55 to 54 to increase Site functionality, as it relates to on-site waste collection. Given that the City eliminated minimum parking standards, the Tribunal finds that the existing 54 parking spots, determined through the SPA, offers adequate parking for the extra unit proposed, and therefore maintains the intent and purpose of the ZBL.

25Under the new and in-force bicycle parking requirements, the updated ZBL would require one space per dwelling unit, separated into 0.9/unit intended for long-term storage, and 0.1/unit for short term. Thereby if this proposal was going through SPA today, it would require 30 long term spaces and four short term spaces. The Tribunal notes the Appellant’s evidence about the creation of one more long term parking spot to satisfy the City’s new ZBL for bicycle parking spaces, but relies on their reasoning about how a legal, non-conforming situation would arise if a variance would be approved to recognize the existing permitted number of spaces. It is reasonable to determine the number of bicycle spots needed, based on the existent requirement when the variance was approved, as opposed to a more stringent requirement approved after the completion of the SPA process. Consequently, it finds that the variance requesting for a reduction in the numbers of bicycle spots maintains the intent and purpose of the ZBL.

26On the basis of the above evidence, the Tribunal finds that the requested variances satisfy the purpose and intent of the ZBL.

27Variances in general are considered to be minor if they do not result in unacceptable adverse impacts. In this case, the evidence demonstrated that the approval of the variances will either result in internal modifications, exemplified by the density variance, or result in no changes to the status quo, exemplified by the traffic and bicycle parking variances, neither of which result in unacceptable adverse impact. On the basis of the lack of unacceptable adverse impact, the Tribunal finds that the requested variances are minor.

28The Tribunal also finds the variances to be appropriate for the development of the Site because they do not result in any changes that destabilize the Apartment Complex or adjacent lands, or result in a hitherto unexpected impact.

29Since all the variances satisfy the four tests under s. 45(1) of the Act, the Tribunal authorizes the variances.

30It is also very important to make a finding on the Appellant’s request for waiving the condition for the construction of a fence outside the Apartment Complex. The evidence clearly demonstrates that the requested variances would impact the interior of the Apartment Complex under construction, and not the exterior. Prima facie, there is no plausible explanation for the imposition of a condition requiring a safety fence to be constructed, because there is no safety issue resulting from the construction that needs to be resolved. The lack of participation by the City does not contribute to explaining, nor explicating their thinking on why a fence is required to be installed by the Appellant. As a result, the Tribunal finds it appropriate not to impose any condition on the authorizing of the variances.

ORDER

31The Tribunal Orders that the Appeal is allowed, and the following variances are authorized:

(1) To permit a density of 91 units per hectare whereas 90 units per hectare is the maximum permitted; (2) To permit 54 parking spaces whereas 55 minimum are required; and (3) To permit 24 long-term bicycle parking spaces whereas 30 minimum are required.

“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.