Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 02, 2025
CASE NO(S).: OLT-24-001131
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Mohammad Khajouie Subject: Minor Variance Description: MV to permit the construction of one Additional Residential Unit (ARU) in the basement Reference Number: MV-2024-037 Property Address: 410 Carruthers Avenue Municipality/UT: Newmarket OLT Case No: OLT-24-001131 OLT Case Name: Khajouie v. Newmarket
Heard: February 28, 2025 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Mohammad Khajouie | Self-represented* |
| Town of Newmarket | Did not attend |
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON FEBRUARY 28, 2025 AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1This hearing was convened to consider the appeals by Mohammad Khajouie (“Appellant”) of the decision of the Town of Newmarket (“Town”) Committee of Adjustment (“COA”) made on September 25, 2024 to refuse the minor variances. The applicant is proposing the construction of an Additional Residential Unit (ARU).
VARIANCES REQUESTED
2The following relief is requested from Zoning By-law No. 1979-50, as amended:
| Relief | By-Law | Section | Requirements | Proposed |
|---|---|---|---|---|
| 1 | 1979-50 (2003-98) | 5 | Parking requirements for a two unit house shall be four (4) exterior parking spaces, which shall be accessed by a municipal road or other access satisfactory to the Director of Public Works. | To allow for a single parking space within a double car garage to count towards parking requirements for a singular ARU. |
| 2 | 1979-50 (1993-65) | 6 | To provide an interior side yard (north side) setback of 0.6 metres. | To allow for a walkway to be setback 0.51 metres from the northern interior lot line. |
| 3 | 1979-50 (1993-65) | 6 | To provide an interior side yard (south side) setback of 0.6 metres. | To allow for a walkway to be setback 0.22 metres from the southern interior lot line. |
STATUS REQUEST
3The Tribunal was in informed of a Participant Status request by Monika Campbell who resides at 414 Carruthers Avenue in the Town, adjacent to the Applicant’s property.
4There were no objections to the request.
5The Tribunal granted Ms. Campbell Participant Status.
SUBMISSIONS
6Mr. Khajouie, the Applicant, appeared on his own behalf.
7The Tribunal was informed that the Town would not attend the hearing but was in receipt of the Planning Report prepared by staff of the Planning and Building Services dated September 20, 2024.
8The report supported the requested variances with the following conditions;
- The Secretary-Treasurer shall receive a revised arborist report, indicating that satisfactory arrangements have been made with respect to Urban Forestry Innovations’ comments provided on September 12, 2024; and,
- The applicant needs to submit a sealed grading plan designed and stamped by a P. Eng of Ontario to the Town, complying with the Town’s standards for grading and drainage requirements. The applicant shall demonstrate that there will be no negative impacts to the grading and drainage for this property or neighbouring properties because of the proposed changes.
9The Tribunal heard the applicant is requesting an exemption from section 5 of Zoning By-law No. 2003-98 (which amends Zoning By-law No. 1979-50) to allow one parking space within a double car garage to count towards the required parking for an Additional Residential Unit (ARU). The amended Zoning By-law No. 1979-50 mandates four exterior parking spaces—two for the main dwelling and two for the ARU. However, Ontario Regulation 299/19 has superseded this requirement, allowing municipalities to require only one parking space for an ARU, thus reducing the total required parking spaces to three.
10The proposed ARU will be situated in the basement of the dwelling. Section 5 of the Zoning By-law stipulates that parking spaces must be exterior. The property features a double car garage and a double car driveway, with the two driveway spaces fulfilling part of the parking requirement. The application seeks to recognize one garage parking space to meet the minimum parking requirement for the ARU.
11The Tribunal was informed that section 6 of Zoning By-law No.1993-65 (which amends Zoning By-law No. 1979-50) mandates an interior side yard setback of 0.6 metres. The applicant is seeking an exemption to allow a walkway that wraps around both sides and the rear of the dwelling, encroaching into the required interior side yard setback on both sides. The proposed setback for the interior side yard on the south side is 0.22 metres, while the proposed setback on the north side is 0.51 metres. This walkway is designed to provide an accessible pathway to the secondary entrance.
LEGISLATIVE TESTS
12Through Mr. Khajouie and the Town’s Staff report, the Tribunal was advised of the relevant criteria that was presented to support the requested variances against the four legislative tests described below.
1. Maintain the general intent of the Official Plan
13The Tribunal was informed that the property albeit in the Town, is part of the Oak Ridges Moraine and therefore has additional applicable policies. The property falls under the Oak Ridges Moraine Conservation Plan (ORMCP). In 2003, OPA 28 was adopted to ensure the Town’s Official Plan aligns with the ORMCP. Both the ORMCP and OPA 28 classify the subject lands as a “Settlement Area,” which permits a variety of housing types and additional residential units. The settlement designation aims to allow urban development while safeguarding the Oak Ridges Moraine.
14The Tribunal heard that the proposed use is permitted and does not adversely affect any environmental features. The requested variances comply with the general intent of the Official Plan.
2. Maintain the general intent of the Zoning By-law
15The Tribunal learned the subject land is zoned Single Family Detached Dwelling Second Density (R2) in Zoning By-law No. 1979-50, as amended. Accessory residential units are permitted within the zone.
Variance 1
To allow for a car spot within a double car garage to be counted as a parking space.
16Section 5 of Zoning By-law No. 2003-98, which amends Zoning By-law No. 1979-50, outlines the parking requirements for residential properties. It mandates a total of four exterior parking spaces: two for the primary dwelling and two for the proposed Additional Residential Unit (ARU). However, Ontario Regulation 299/19 reduces the requirement for the ARU to just one parking space, resulting in a total of three parking spaces.
17The primary goal of the Zoning By-law is to ensure adequate parking spaces are available. At present, two vehicles can be parked perpendicularly on the driveway. To accommodate the third parking space, the proposed variance seeks to designate one of the garage spaces in the double car garage as a required parking space.
Variance 2
To allow for a walkway to have a setback of 0.22 metres from the lot line (south side)
18Section 6 of Zoning By-law No. 1993-65, which amends Zoning By-law No.1979-50, stipulates a setback of 0.6 metres from any structure within the interior side yard. The applicant is requesting an exemption from section 6 to install a walkway around the dwelling. The proposed walkway would be situated 0.22 metres from the southern property line. The purpose of the minimum interior yard setback is to ensure adequate space for drainage, lawn maintenance, sunlight, airflow, stormwater runoff, and movement around the interior side yard of the dwelling.
Variance 3
To allow for a walkway to have a setback of 0.51 metres from the lot line (north)
19Section 6 of Zoning By-law No.1993-65, which amends Zoning By-law No.1979-50, mandates a setback of 0.6 metres from any structure and the lot line within the interior side yard. The applicant is seeking an exemption from this requirement to install a walkway for accessing the secondary entrance. The proposed walkway will be set back 0.51 metres from the northern interior lot line, encroaching only 0.09 metres into the required setback. This walkway will facilitate easy access to the rear yard from both the north and south sides of the dwelling.
20The Tribunal heard the requested variances comply with and maintain the general intent of the Zoning By-Law.
3. Desirable development of the property
21To facilitate the ARU, the applicant requests that one of the two spaces in a double car garage be counted as a required parking space. This adjustment is beneficial for the property, as the additional parking space is necessary for the proposed ARU. Furthermore, a separate entrance is required to comply with ARU regulations.
22The Tribunal heard the variances are desirable for the development of the property.
4. Minor in nature
23The overall impact of the parking variance is minimal, as it does not substantially diminish the garage's storage capacity. It ensures the provision of necessary parking for an ARU and contributes to diversifying the housing options in the neighborhood.
24Granting the addition of a walkway that wraps around the dwelling facilitates the inclusion of an ARU in the main dwelling and provides an accessible entrance to both the ARU and the backyard. The walkway's encroachment into the required interior side setback still permits access for general yard maintenance equipment to the rear yard. If required, the northern side yard offers ample space with a remaining 1.23-meter walkway for access to the rear yard.
25The Tribunal heard the variances are minor in nature for the development proposal.
FINDINGS
26The 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 Applicant.
27The Tribunal’s authority to authorize variances is given under section 45(1) of the Act, which sets out the four above tests that must be satisfied by an Applicant when making an application for the authorization of variances.
28The Tribunal accepts and agrees with the testimony of Mr. Khajouie and the Township’s Staff report.
29The Tribunal finds that counting one of the spaces in the double car garage as a required parking space, will only slightly reduces the available storage. The remaining garage space will still be used for storage, while also providing a parking space.
30The Tribunal finds the proposed walkway setbacks do not hinder access to the rear yard for general maintenance, nor does it diminish sunlight or airflow. The proposed walkway will provide convenient access to the secondary entrance, making it a valuable addition to the property.
31The Tribunal further finds that an Additional Residential Unit (ARU) enhances the variety of housing types in Newmarket and aligns with the Town’s objectives of offering more affordable housing options.
32The Tribunal is further satisfied that the required Town’s Conditions for approval herein marked as Attachment “1”, will satisfy any discrepancies that may arise.
33Furthermore, the Town’s report not to oppose these variances provides added credibility to the appeal and the Tribunal determines the appeal should be allowed.
ORDER
34THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to By-law No. 1979-50 are authorized subject to the conditions set out in Attachment 1 to this Order which shall be complied with to the satisfaction of the Town of Newmarket.
“Carmine Tucci”
CARMINE TUCCI 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.
ATTACHMENT 1
MV-2024-037 – 410 Carruthers Avenue
Conditions of Approval Recommended by Town of Newmarket Staff:
- The Secretary-Treasurer shall receive a revised arborist report, indicating that satisfactory arrangements have been made with respect to Urban Forestry Innovations’ comments provided on September 12, 2024; and,
- The applicant needs to submit a sealed grading plan designed and stamped by a P.Eng of Ontario to the Town, complying with the Town’s standards for grading and drainage requirements. The applicant shall demonstrate that there will be no negative impacts to the grading and drainage for this property or neighbouring properties because of the proposed changes. See Letter AG004M dated September 9, 2024.