Palangi v. Whitchurch-Stouffville (Town), 2025 CanLII 19744

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 06, 2025

CASE NO(S).: OLT-24-000789

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Behrooz Palangi

Subject: Consent

Description: To permit the development of two new single-detached lots on severed and retain parcel of land.

Reference Number: CA-24-22

Property Address: 25 Balson Boulevard

Municipality/UT: Town of Whitchurch-Stouffville

OLT Case No.: OLT-24-000789

OLT Lead Case No.: OLT-24-000789

OLT Case Name: Palangi v. Whitchurch-Stouffville (Town)

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

Applicant and Appellant: Behrooz Palangi

Subject: Minor Variance

Description: To permit the development of two new single-detached lots on severed and retain parcel of land.

Reference Number: CA-24-21

Property Address: 25 Balson Boulevard

Municipality/UT: Town of Whitchurch-Stouffville

OLT Case No.: OLT-24-000790

OLT Lead Case No.: OLT-24-000789

OLT Case Name: Palangi v. Whitchurch-Stouffville (Town)

Heard: December 11, 2024 by Video Hearing

APPEARANCES:

Parties Counsel

Behrooz Palangi Sarah Spitz

DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal were Appeals pursuant to s.53(19) and s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by Behrooz Palangi (“Applicant”), against the decision of the Town Whitchurch-Stouffville (“Town”) Committee of Adjustment (“CoA”) refusing the applications for provisional consent and minor variances (“Applications”).

2The property, municipally known as 25 Balson Boulevard in the Town (“Subject Property”), is a single detached dwelling zoned as RV (Residential Village). The Applicant seeks to sever the existing lot into two equal parts, demolish the existing detached dwelling and build identical single detached dwellings that will be 142.992 square metres (“sq m”) and 12 metres (“m”) high on the conveyed and retained lots.

3In addition, the Applicant seeks minor variances to permit reductions in the minimum lot frontage (from 35.08 m to 12.192 m), lot area (5000 sq m to 371.612 sq m), increase in minimum lot coverage (from 15% to 38.84%) and to increase the maximum height from 11 m to 12 m.

4The Applications were filed with the Town, and according to the Staff Planning Report dated July 10, 2024 (“Staff Report”), the Town was in support of the Applications subject to conditions. The CoA denied the Applications.

5On July 23, 2024, the Applicant filed Appeals to this Tribunal. No issues were raised regarding the Notice of Hearing dated September 13, 2024.

6The Tribunal did not receive any Party or Participant status requests in advance of the hearing, and no one appeared at the hearing requesting Party or Participant Status.

7For the reasons that follow, the Tribunal finds that the Appeals should be allowed, and the Applications authorized with conditions as discussed below.

HEARING

8The Applicant’s Book of Documents was marked as Exhibit 2.

9The Town did not appear before the Tribunal.

10The Tribunal qualified Mr. Owen Sluga to provide expert opinion evidence in the area of land use planning. He was summoned as a witness by the Applicant. Mr. Sluga’s Witness Statement was marked as Exhibit 3.

11The Applicant provided factual evidence with respect to the ownership of the Subject Property, background information, and other information, which will be discussed below. The Applicant’s Witness Statement was marked as Exhibit 4.

LEGISLATIVE TEST

12With respect to the Appeal under s. 53(19) of the Act, in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must be satisfied that a plan of subdivision is not necessary. If not, then regard must then be given to the applicable criteria set out in s. 51(24) of the Act, including that the proposed consent has regard to matters of Provincial Interest, whether it is premature or in the public interest, whether there is conformity to the applicable Official Plans (“OP”), the suitability of the land for the purposes for which it is to be subdivided, the dimensions and shapes of the proposed lots, and the adequacy of utilities and municipal services. In addition, the Tribunal is mandated by s. 3(5) of the Act to render decisions that are consistent with the Provincial Policy Statement, 2024 (“PPS”) and conform or not conflict with the provincial plans that are in effect on the date of the decision.

13With respect to minor variances, s. 45(1) of the Act, the Tribunal must be satisfied that the requested variances:

a. Maintain the general intent and purpose of the regional OP and the Town OP;

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

c. Are minor in nature; and

d. Are desirable for the appropriate development or use of the land, building or structure.

14Further, the Tribunal must be satisfied that the variances are consistent with the PPS 2024 and have regard to matters of Provincial Interest under s. 2 of the Act, as well as for the decision of the approval authority and the information that was before it.

ANALYSIS AND FINDINGS

Provincial Planning Statement and Matters of Provincial Interest

15The Tribunal finds that the proposal is consistent with the policies under the PPS 2024 as well as matters of Provincial Interest. Mr. Sluga testified that the Subject Property is located in the settlement boundary. The PPS 2024 directs growth in these areas, and infill development is encouraged. He opined that the proposal is consistent with the policies in the PPS 2024 and is in line with Provincial Interests.

Official Plan

16The Tribunal is satisfied that the proposed consent conforms with the OP and the proposed variances meet the general intent of the OP. Mr. Sluga testified that the Subject Property is located in the Ballantrae-Musselman’s Lake and Environs Secondary Plan boundaries and is designated as Musselman’s Lake Community Area. According to Mr. Sluga, the creation of new lots meets the intent of the OP by proposing small-scale infill and development in an area that already benefits from municipal infrastructure.

Zoning By-law No. 2010-001-ZO

17The Tribunal is satisfied that the proposal and all of the variances meet the general purpose and intent of the ZBL. Mr. Sluga testified that the Subject Property is zoned Residential Village (RV), which intends to accommodate low-density single detached dwellings and appropriate accessory uses. The proposed dwellings and uses are permitted under the RV zone.

18Regarding the minor variances, the minimum lot frontage in the ZBL is 30 m, whereas the requested lot frontage is 12.192 m. Mr. Sluga testified that the requested reduction in lot frontage is in line with the surrounding lots on Balson Boulevard, where there are 10 properties with frontages in the range of 11 m to 13 m on the east and west sides. He concluded that the frontage variance is suitable for the surrounding area as it is appropriate for the street and keeps in line with the streetscape and lot fabric of the neighbourhood.

19Regarding the minimum lot area, the ZBL requires 5000 sq m, whereas the request is to reduce the lot area to 371.612 sq m. Mr. Sluga testified that the Subject Property was already legally non-conforming with the requirement in the ZBL and that there are no homes within the northern neighbourhoods of Musselman’s Lake area which conform to the legislation. As such, the requested reduction would be in line with the lots in the surrounding area. In the Staff Report, Mr. Sluga noted that the property directly abutting the Subject Property to the north has an approximate lot area of 371 sq m. Furthermore, there are more than 10 properties along Balson Boulevard within the RV zone with lot areas like what is being proposed in the Applications.

20With respect to lot coverage, the ZBL requires 15%, and the requested variance is 38.84%. Mr. Sluga testified that the intent of lot coverage in the ZBL is to ensure that there is adequate space on a property to accommodate a septic system, which is sized appropriately for the size of the dwelling to be constructed. Mr. Sluga noted that as part of the Conditions of Approval to this Application, the Applicant will be required to demonstrate that adequate servicing can be established on the two properties to the satisfaction of the Town. As such, the onus remains on the Applicant to provide a building footprint with a well and septic system design that satisfies the Building Department as part of the Building Permit Application. Counsel for the Applicant confirmed that the Applicant understands this condition and does not object to said condition.

21Additionally, Mr. Sluga testified that the existing dwelling on the Subject Property already exceeds the ZBL at 24% lot coverage. In the analysis of neighbouring properties, the Staff Report advised that at least 18 properties in close proximity to the Subject Property have lot coverages ranging from 25% to 35%. Mr. Sluga opined that the proposed lot coverage is appropriate for the neighbourhood.

22Regarding the height requirement, the ZBL permits a maximum height of 11 m, whereas the Applicant is proposing 12 m. Mr. Sluga testified that the intent of the height requirement is to maintain the privacy of neighbours, reduce shadowing, and maintain the built-form character of the neighbourhood. Mr. Sluga testified that as part of a previous Application regarding this Subject Property, which was not before this Tribunal, the Applicant was requesting a built form (one structure at the southern half of the property), which was different from this Application (two identical dwellings). The previous Application approved a height of 11.14 m, and the height of that proposed building was loaded on the south side of the property, which abuts a two-storey dwelling with a tree line in between the properties providing screening. Mr. Sluga said this Application would result in a 12 m dwelling located on the north side of the lot abutting a single-storey bungalow. According to Mr. Sluga, the impact of the height in terms of shadowing and privacy would be much greater as opposed to the previous approved Application. With regards to Mr. Sluga’s commentary about a previous Application and reasons for previous approval, the Tribunal finds it irrelevant because each Application is determined on its own merits considering the evidence presented.

23Additionally, the Staff Report noted that when evaluating a request to permit additional heights, setbacks “are important in their role to minimize the potentially adverse effects of a taller built form such as shadowing and privacy”. The Staff Report noted that the new dwelling is setback only 1.02 m from the bungalow to the north instead of the ZBL requirement of 3.5 m.

24Counsel for the Applicant asked Mr. Sluga if he or the Town staff conducted an analysis of the heights of neighbouring dwellings. Mr. Sluga could not confirm this information. When questioned regarding the shadowing on the neighbouring property, counsel asked Mr. Sluga to expand on the concern of the impact of shadows between 11.14 m and 12 m. Mr. Sluga confirmed that no shadow impact study was conducted and that there was no further discussion about concerns with respect to shadowing in the Staff Report.

25With respect to the height, the Applicant provided a Shadow Impact Assessment. According to the Applicant, the study demonstrates that the impact of shadows from an 11 m structure versus a 12 m structure on the neighbouring bungalow is insignificant. He testified that a 10 m structure, which is less than the requirement of the ZBL, next to a bungalow would have a very similar impact to an 11 m or 12 m structure. The Applicant stated that he was the author of the study. He obtained the help of an individual with AutoCAD imaging to help render the drawings of the assessment. The Applicant could not qualify as an expert to present evidence on his own behalf, and the person who helped with the report was not present. The Shadow Impact Assessment was, therefore, not helpful for the Tribunal. With that said, however, the essential point remains that any structure which is built next to a one-storey bungalow, whether 10 m (below the requirement of the bylaw) or 12 m (above the requirement of the ZBL), will cast a shadow. There was no evidence before the Tribunal to demonstrate undue or adverse impact from shadow or any privacy concerns regarding the height.

26Moreover, neither the owner of the neighbouring bungalow nor any other community member appeared as a Party or Participant to provide comments with respect to adverse impacts from shadows or to discuss privacy concerns. The Tribunal finds this significant because people who would be directly impacted by the proposal did not voice any concerns. Absent evidence of adverse impacts from shadows or privacy concerns, the Tribunal grants the 12 m height variance requested.

Desirable for the Appropriate Development Use of Lands

27Mr. Sluga testified that three of the variances (lot frontage, lot area, and lot coverage) are desirable for the appropriate development as the proposal represents infill in an established neighbourhood. Mr. Sluga had concerns regarding the variance with respect to height, as noted above. However, absent compelling evidence regarding privacy or shadow impacts, the Tribunal is satisfied that the proposed dwellings are desirable for the appropriate development use of the land.

Variances are Minor

28The Tribunal is satisfied that the variances sought are minor in nature and will not cause undue adverse impact on the abutting properties nor on the neighbourhood in general. There is no evidence before the Tribunal to demonstrate any adverse impacts with respect to privacy or shadow impact.

PROPOSED CONDITIONS TO CONSENT APPLICATION

29The Staff Report outlined several conditions for the approval of the consent and minor variance Application, which are discussed below:

Conditions of Consent

1. Payment of 5% of the appraised value of the new lot be made to the Town of Whitchurch-Stouffville in lieu of parkland dedication. The appraisal shall be completed by a qualified appraiser, in accordance with Section 53(13) of the Planning Act, R.S.O. 1990, c P.13, as amended, which provides, in part, ‘for the purpose of determining the amount of the payment, the value of the land shall be determined as of the day before the day the provisional consent was given', plus an administrative fee of 10% incurred by the Town;

2. Payment of the applicable Administrative Fee in accordance with the current Town’s Fees and Charges By-law per created lot, by certified cheque to the Town of Whitchurch-Stouffville;

3. Written confirmation from the Development Services Commission, Town of Whitchurch-Stouffville, that a municipal address has been assigned to the lands to be conveyed;

4. Submission of three (3) white prints of a deposited Plan of Reference of the Subject Property, which conforms substantially with the Application as submitted, and includes the calculated area of each part on the Plan;

5. Submission of a fully executed Transfer / Deed of Land for each of the lands to be conveyed;

6. That the Owner obtain approval of a servicing solution for the created lots from the Development Services Commission;

7. Submission of a grading plan inclusive of Site Servicing (Existing and proposed), Erosion and Sediment Control Plan, and any other related drawings and materials to the satisfaction of the Town Engineer; and

8. The owner shall provide payment for engineering review fees as per the recent Fees and Charges By-law to the satisfaction of Town Engineer.

30Counsel for the Applicant advised that the Applicant agreed with all of the conditions.

FINDINGS

31The Tribunal finds that based on the filed materials and submissions of the Applicant, the Applications represent good land use planning, satisfy all legislative tests as detailed above, and are approved. The Tribunal finds that the proposal is consistent with the policies under the PPS 2024 as well as matters of Provincial Interest. The Tribunal is satisfied that the proposed consent conforms with the OP and the proposed variances meet the general intent of the OP. The Tribunal is satisfied that the criteria listed in s. 51(24) are met, and the minor variances requested individually and collectively meet the prescribed test as set out in s. 45 of the Act. Furthermore, the Tribunal had regard for the decision of the COA but did not find the reasons for the denial of the Applications compelling. As such, the Applications should be approved, subject to the Conditions of Approval discussed previously.

ORDER

32THE TRIBUNAL ORDERS THAT the Appeal by the Applicant pursuant to s. 53(19) of the Planning Act is allowed, and provisional consent is given subject to all of the following conditions:

1. Payment of 5% of the appraised value of the new lot be made to the Town of Whitchurch-Stouffville in lieu of parkland dedication. The appraisal shall be completed by a qualified appraiser in accordance with s. 53(13) of the Planning Act, R.S.O. 1990, c. P.13, as amended, which provides, in part, ‘for the purpose of determining the amount of the payment, the value of the land shall be determined as of the day before the day the provisional consent was given’, plus an administrative fee of 10% incurred by the Town;

2. Payment of the applicable Administrative Fee in accordance with the current Town’s Fees and Charges By-law per created lot by certified cheque to the Town of Whitchurch-Stouffville;

3. Written confirmation from the Development Services Commission, Town of Whitchurch-Stouffville, that a municipal address has been assigned to the lands to be conveyed;

4. Submission of three (3) white prints of a deposited Plan of Reference of the Subject Property, which conforms substantially with the Application as submitted, and includes the calculated area of each part on the Plan;

5. Submission of a fully executed Transfer / Deed of Land for each of the lands to be conveyed;

6. That the Owner obtain approval of a servicing solution for the created lots from the Development Services Commission;

7. Submission of a grading plan inclusive of Site Servicing (Existing and proposed), Erosion and Sediment Control Plan, and any other related drawings and materials to the satisfaction of the Town Engineer; and

8. The owner shall provide payment for engineering review fees as per the recent Fees and Charges By-law to the satisfaction of Town Engineer.

33THE TRIBUNAL FURTHER ORDERS THAT the Appeal by the Applicant pursuant to s. 45(12) of the Planning Act is allowed, and the minor variances to Zoning By-law No. 2010-001-ZO to permit reductions in the minimum lot frontage (from 35.08 metres to 12.192 metres), lot area (5000 square metres to 371.612 square metres), increase in minimum lot coverage (from 15% to 38.84%), and increase the maximum height from 11 metres to 12 metres are allowed.

“Yasna Faghani”

YASNA FAGHANI

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.