Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 28, 2024
CASE NO(S).:
OLT-24-000185
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Maleka and Ismail Soni
Subject:
Minor Variance
Description:
Minor Variance to increase maximum permitted lot coverage from 40% to 41.29%
Reference Number:
A 352/23 WARD 1
Property Address:
52 Maple Avenue South
Municipality/UT:
Mississauga/Peel
OLT Case No:
OLT-24-000185
OLT Case Name:
Soni v. Mississauga (City)
Heard:
June 12, 2024 by Video Hearing
APPEARANCES:
Parties
Representative
Ismail Soni
Self-represented
DECISION DELIVERED BY S. BOBKA AND M. MENEZES AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Maleka and Ismail Soni (together the “Appellant”) are the owners of the property municipally known as 52 Maple Avenue South (“Subject Property”) in the City of Mississauga (“City”) who have appealed, under s. 45(12) of the Planning Act (“Act”), the refusal of a minor variance by the City’s Committee of Adjustment (“CoA”).
2The Subject Property is located within the Port Credit Neighbourhood (West), southwest of Mississauga Road and Lakeshore Road West, which primarily consists of one or two-storey dwellings with mature vegetation. It is designated Residential Low Density 1 in Schedule 10 of the City’s Official Plan (“COP”) and zoned ‘R15-2 Residential’ under Zoning By-law No. 0225-2007 (“ZBL”).
3The Appellant has constructed a single dwelling residence with three levels, a Gross Floor Area of 622 square metres (“sq. m”), and large rear decks at the lower, main and first levels.
4The floor coverage of the dwelling unit is 260.28 sq. m on a lot that is 654.6 sq. m. The proposed lot coverage is 41.29%, whereas 40% is permitted by the zoning regulations; as such, the Appellant sought a variance to permit this increase in maximum lot coverage.
5On January 11, 2024, the CoA refused the requested variance.
6On February 6, 2024, the Appellant appealed the CoA’s decision to the Tribunal.
7The Appeal before the Tribunal in this Hearing is whether to authorize a single variance to permit a maximum lot coverage of 41.29%, whereas 40% is permitted.
LEGISLATIVE FRAMEWORK
8The Tribunal’s authority to grant a variance is given under s. 45(1) of the Planning Act, which sets out the four tests that must be satisfied when considering a minor variance application. The tests require that the variance:
a. Maintains the general intent and purpose of the COP;
b. Maintains the general intent and purpose of the ZBL;
c. Is desirable for the appropriate development or use of the land, building or structure; and
d. Is minor in nature.
9The proposed variance must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). The Tribunal must also have regard to the matters of provincial interest set out in s. 2 of the Act as well as 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.
HEARING
10On June 12, 2024, the Tribunal heard the Appeal by Video Hearing.
11Prior to the Hearing, the City communicated to the Tribunal that it would not participate in the Appeal nor attend any hearing on the matter.
12Upon consideration, the Tribunal granted Participant status to Chris Mackie, Tim and Pat Trueman, Jennifer Patterson and Renato Bernardo, neighbouring residents, who had filed written statements in opposition to the Application and this Appeal. Their concerns primarily related to the size and height of the home, the multi-level and oversized decks overlooking the neighbouring properties with loss of privacy, impacting views of the tree canopy and light, and lack of compatibility with the character of the neighbourhood.
13The Tribunal received and marked the following documents as Exhibits:
Exhibit 1 – Curriculum Vitae of Natasha Krickchan
Exhibit 2 – Acknowledgment of Expert’s Duty of Natasha Krickchan
Exhibit 3 – Applicant Statement
Exhibit 4A – Participant Statement of Chris Mackie;
Exhibit 4B – Participant Statement of Tim and Pat Trueman;
Exhibit 4C – Participant Statement of Jennifer Patterson; and
Exhibit 4D – Participant Statement of Renato Bernardo.
14Mr. Soni, the Appellant, was self-represented. In his opening statement, he confirmed to the Tribunal that the construction of his home is now complete and that the dwelling is for his multi-generation family of eight. He highlighted that the Subject Property met all the zoning regulations of the ZBL other than the requested variance for the lot coverage. This increase in lot coverage of 1.29% is primarily attributable to the rear concrete base at the lower level being larger than the original design. During construction, the framer erroneously built the main and upper decks off this larger base, increasing the depth of decks at the three levels from around 3.34 metres (“m”) to 4.95 m. Mr. Soni highlighted that if the variance is denied, the decks will have to be dismantled and rebuilt at an additional cost, resulting in a waste of resources and further delays.
15The Appellant called one witness, Natasha Krickhan, an Architect and Planner with more than 30 years of experience. She had been retained by the Appellant on the project and Appeal. Upon review of her Curriculum Vitae and Acknowledgment of Expert’s Duty form, the Tribunal qualified Ms. Krickhan to provide expert opinion evidence in the area of architecture and planning.
16It was Ms. Krickhan’s overall opinion that the proposal met the four tests of a minor variance. She stated that the Subject Property meets all the requirements of the zoning regulations other than the variance in the lot coverage. The only implication of this is the extension of the decks in the rear by 1.61 m, which, she clarified, would still leave a substantial distance from the neighbour’s property at the rear. It was her opinion that this extension of the decks would have no undue adverse impacts on the neighbours’ privacy, nor would it contribute to the loss of view of the tree canopy or of light. She highlighted that all other zoning regulations, including the maximum height of the dwelling, as well as minimum front, side and rear yard setbacks, are all easily met and that the size of the lot at 654.6 sq. m is much larger than the minimum lot size of 460 sq m required under the ZBL. She opined that the dwelling is compatible with the existing built form, maintains the character of the Port Credit neighbourhood, would not impact the streetscape, and would not result in overdevelopment. In summary, for the reasons above, Ms. Krickhan confirmed that the variance maintains the general intent and purpose of the COP and ZBL, is an appropriate development for the use of the land and is minor in nature.
17Ms. Krickhan highlighted that in the Department Comments Report (“City Report”), dated January 4, 2024, to the CoA, Planning Staff stated that:
the application requests an overall increase of only 1.29% from the permissible regulation, which is primarily attributed to the front porch and rear deck. Staff are of the opinion that these elements do not pose the same massing impacts as an enclosed structure and present negligible massing concerns. Staff are satisfied that the requested increase in the overall lot coverage represents a minor deviation from the zoning by-law requirements … [and] staff are of the opinion that the proposed use is desirable and is appropriate to be handled through the minor variance process and that the application raises no concerns of a planning nature.
ANALYSIS AND FINDINGS
18The Tribunal notes that the City did not participate in the Hearing to oppose this Appeal.
19The Tribunal also notes that Ms. Krickhan’s evidence that the proposal meets the four tests and satisfies all other legislative requirements was uncontroverted by any other expert evidence.
20In addition, the Tribunal closely reviewed the materials provided to it by the City in the Full Appeal Package (“Municipal Record”), which contained the decision of the CoA and the information considered by it, including the City Report, which concluded that the application raised “no concerns of a planning nature.” The City Report highlighted that when restricting lot coverage, the intent is to “ensure that there isn’t an overdevelopment of the lot which would impact the streetscape as well as abutting properties.” The City’s Planning Staff were satisfied that the proposed variance would have negligible massing concerns and was a minor deviation from the requirements of the ZBL regarding lot coverage.
21Although the City’s Planning Staff Report does not qualify as expert evidence, the planning overview and opinions expressed are of assistance in considering the four tests.
22The Tribunal does not dispute the positions of Ms. Krickhan or the City Planning Staff that the proposal meets the four tests of a minor variance under the Act, nor was any expert evidence presented at the Hearing to dispute that position.
23The Participant statements reflect concerns relating to the decks overlooking the neighbouring properties, with loss of privacy and light, restricted views of the tree canopy, and the imposing structure of the new dwelling. The Tribunal, whilst empathetic, reiterates that what is under review in this Appeal is the narrow implication of the 1.29% increase in the lot coverage and the impact that results from an increase of 1.61 m in the depth of the decks.
24The Tribunal finds that the extra 1.61 m extension of the decks, as proposed, will not have undue adverse impacts on the neighbours’ privacy and views of the tree canopy or of light and is compatible in built form and scale with the surrounding development.
25After consideration of Ms. Krickhan’s expert opinion evidence and a thorough review of the Municipal Record, including the City Report, the Tribunal finds that the proposed variance satisfies the four tests in s. 45(1) of the Act, meets the general intent and purpose of both the COP and ZBL, is desirable for the appropriate development or use of the land, building or structure and is minor in nature.
26The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and, in general, regard for the related decision of the CoA. The Tribunal did not have any evidence to suggest that the proposal was inconsistent with the PPS or did not conform to the Growth Plan. The Tribunal is satisfied that the proposed variance represents good planning and is in the public interest.
ORDER
27The Tribunal orders that the Appeal is allowed and the variance to the City of Mississauga Zoning By-law No. 0225-2007 is authorized.
“S. Bobka”
S. BOBKA
MEMBER
“Michael Menezes”
MICHAEL MENEZES
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.