Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 21, 2025

CASE NO(S).: OLT-24-000904

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

Applicant and Appellant: B.U. Inc

Subject: Minor Variance

Description: To facilitate the addition of 4 bedrooms to an existing detached dwelling unit

Reference Number: HM/A-24:42

Property Address: 9 Westbourne Rd

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-24-000904

OLT Lead Case No.: OLT-24-000904

OLT Case Name: B.U. Inc v. Hamilton (City)

Heard: June 20, 2025 and June 24, 2025

APPEARANCES:

Parties	Counsel
B.U. Inc.	Peter Voltsinis
City of Hamilton	Melanie Benedict

DECISION DELIVERED BY A. Mason AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This is the decision arising from the appeal by B.U. Inc. (“Appellant”) of a decision by the Committee of Adjustment (“COA”) of the City of Hamilton (“City”) to deny an application for minor variance (“MV”) with respect to an existing secondary dwelling unit (“SDU”) in what was originally the detached rear yard garage at the property located at 9 Westbourne Road (“Property”).

2This matter was previously considered in a Hearing of the Merits by the Tribunal on November 6, 2024, and a decision was issued on November 21, 2024 that dismissed the Appeal (“Original Hearing”). The Appellant submitted a request to review that decision pursuant s. 23 of the Ontario Land Tribunal Act, 2021 (“OLT Act”) and Rule 25 of the Tribunal’s Rules of Practice and Procedure (“Rules”). It was determined that the request met the threshold established under Rule 25.7 to warrant a review. For the reasons set out in the Chair of the Tribunal’s disposition letter dated March 6, 2025 (“Disposition Letter”), the written decision from the Original Hearing was set aside and rescinded. The Disposition Letter also ordered a complete oral rehearing of the matter pursuant to the Chair’s authority under section 23 of the OLT Act and Rule 25. The rehearing of the matter is the subject of this decision (“Rehearing”).

3Having considered the submissions of counsel and the viva voce and sworn evidence of the planning witnesses presented by both Parties in the Rehearing, the Tribunal finds that the MV fails three of the four tests under s. 45(1) of the Act and therefore cannot be considered good planning, for the reasons set out more particularly in this Decision.

NOTICE AND REQUEST FOR PARTICIPANT STATUS

4In advance of the Original Hearing, a written request for Participant Status was received by the Tribunal from Rosemary Lukosius, a neighbour of the Property, who objected to the proposed MV. Ms. Lukosius was granted Participant Status in that proceeding.

5Notice of the Rehearing was circulated by the Tribunal in accordance with the requirements under the Act, however, due to an administrative error, Ms. Lukosius was not provided with the Notice. The Tribunal discovered the defect in the Notice the day before the Rehearing and the Case Coordinator contacted Ms. Lukosius directly by phone to advise her of the Rehearing. Ms. Lukosius advised that she wished to have her previous Participant Statement brought forward and to be granted Participant Status in the Rehearing, but that she had no objection to the Rehearing taking place on the scheduled date despite the lack of Notice to her.

6The Parties were advised of the defect in the Notice and the contemplated remedy to bring forward Ms. Lukosius’ previous Participant Statement and request to be granted Participant Status at the Rehearing. At the outset of the Rehearing, the Parties informed the Tribunal of their consent to Ms. Lukosius being granted Participant Status and the Notice being cured in this manner. The Tribunal exercised its discretion under Rule 1.4 to grant Participant Status to Ms. Lukosius and consider the Notice cured in order to proceed on the scheduled date for the Rehearing. The Tribunal found this to be in the interests of providing the best opportunity for the fair, just and expeditious resolution of the matter.

7The one-day Rehearing of this matter was disrupted due to technical problems with the video conferencing platform when the City had completed its opening remarks and was attempting to introduce its planning witness. Unable to resolve the technical issues, the Tribunal stood the matter down and convened a half-day continuation of the matter on Tuesday June 24, 2025.

LEGISLATIVE FRAMEWORK

8Where an application for a minor variance is appealed, the provisions of the Act result in the hearing before the Tribunal being a de novo hearing, meaning the Appellant must prove its case in the first instance. The Tribunal must be satisfied that the application for the requested variance from the by-law meets the four tests under s. 45(1) of the Act, being whether the variance: (1) maintains the general intent and purpose of the Zoning By-law; (2) maintains the general intent and purpose of the Official Plan; (3) is minor in nature; and (4) is desirable for the appropriate development or use of the land, building or structure;. The Tribunal’s decision must also have regard for matters of Provincial interest in s. 2 of the Act, be consistent with the Provincial Planning Statement, 2024 (“PPS”) and constitute good planning.

BACKGROUND

9The Property is a residential rectangular shaped lot of approximately 517.4 square Metres (“sq m”) with a lot frontage of 15.24 metres (“m”) located on the west side of Westbourne Road and north of Main Street, approximately 600 m from McMaster University. On the Property is a single storey bungalow primary dwelling unit (“Primary Unit”) and the SDU. The Primary Unit is comprised of a four bedroom apartment on the ground floor, and a separate four bedroom apartment in the basement with a combined 201 sq m of gross floor area (“GFA”).

10The neighbourhood surrounding the Property is characterized by a majority of single storey bungalow detached dwellings with some walk-up apartment buildings. To the rear of the Property is a former school site that has planning approval for the development of two townhouse blocks and a nine-storey condominium building, none of which has been constructed.

11The Property is designated as “Neighbourhoods” in the Urban Hamilton Official Plan (“UHOP”) and as “Low Density Residential 2” in the Ainslie Wood Westdale Secondary Plan (“Ainslie Secondary Plan”). The Property is zoned “C/S-1335, C/S-1335a, C/S-1804” (Urban Protected Residential) District, Modified” under the City’s Zoning By-law No. 6593 (“City ZB”) which permits a single detached dwelling and a second dwelling on the Property.

12In February 2021, the Appellant was granted approval for a site-specific Zoning By-law Amendment approved as By-law No. 21-020, that permitted the conversion of the existing 34.9 sq m one-storey detached garage on the Property to a single storey secondary dwelling unit with 87.4 sq m of living area and 1.3 sq m of storage area for a total of 89 sq m of GFA, along with reduced setbacks and a requirement for one associated parking space (“Site Specific ZB). The SDU was internally configured as a four-bedroom apartment with a single shared bathroom, kitchen and living area.

13Subsequently, the Appellant obtained a building permit to construct the SDU in February 2022. Contrary to the single storey concept shown to the City in the application for the Site Specific ZB (“ZB Application”), the drawings submitted for the building permit showed an “A frame” pitch roof of 7.92 m in height with unfinished space in the attic area (“First Building Permit”). The First Building Permit was issued to the Appellant allowing construction of the SDU with the “A frame” roof and unfinished attic area. The First Building Permit authorized the “A frame” roof despite being different than the original single storey concept in the ZB Application because: (1) the attic area was unfinished and thus not counted as GFA that would exceed the maximum 89 sq m in the Site Specific ZB, and (2) there was no restriction on building height set out in the Site Specific ZB.

14Subsequently, the Appellant submitted an amendment to the First Building Permit in October 2023 requesting permission to allow: (1) the addition of four windows in the attic space, with two windows at either end of the face of the “A frame” pitch roof, and (2) for permission to insulate the previously unfinished attic space (“Amended Building Permit”). The Amended Building Permit was granted by the municipal building official.

15While constructing the SDU as authorized under the Amended Building Permit, the Appellant sought additional changes to the SDU. In January 2024, the Appellant applied for another amendment seeking permission to convert the now insulated attic space with four windows into authorized additional GFA conceptualized as four bedrooms and accessed by an internal staircase from the ground floor, increasing the four-bedroom apartment to eight bedrooms (“Second Amended Building Permit”). Review of the application for the Second Amended Building Permit triggered the direction for the Appellant to apply for the MV since the conversion of the unfinished attic space to finished living space would increase the GFA of the SDU to 124 sq m, contrary to the maximum GFA of 89 sq m in the Site Specific ZB.

16The Appellant submitted an application for the MV (“MV Application”) for relief from the Site-Specific ZB to increase the GFA by 35 sq m (from 89 sq m to 124 sq m) to facilitate the conversion of the attic into additional living space conceptualized as four bedrooms. The specific language of the requested MV is as follows:

Notwithstanding Section 4(3)(a) and in addition to Section 9(1), a maximum 124.0 square metre building containing a second dwelling unit and a shed shall be permitted on the same lot as a single family dwelling instead of notwithstanding s. 4(3)(a) and in addition to Section 9(1), a maximum 89.0 square metre building containing a second dwelling unit and shed shall be permitted on the same lot as a single family dwelling.

17Through the planning review process, City Staff prepared a report for the COA that recommended denial of the MV Application because the proposal was not compatible in style, character and massing to the surrounding neighbourhood or the Primary Unit due to its larger scale and height, deemed it as not meeting the intent of the UHOP or City ZB, being minor in nature or desirable, and thereby failing the tests for consideration of a minor variance under s. 45(1) of the Act (“Staff Report”).

18The Staff Report recommended that, if the MV were approved, then the COA should impose two conditions, being: (1) that the Appellant prepare a stormwater management (“SWM”) report to consider that the “increased runoff due to the proposed intensification is controlled on site…” to the satisfaction of the Manager of Development Engineering (“Manager”); and (2) that the Appellant submit a security deposit for the proposed SWM features to the satisfaction of the Manager (together, “SWM Conditions”).

19In July 2024, the COA considered the MV Application and followed the recommendation in the Staff Report, denying the request. In August 2024, the Appellant appealed the decision of the COA refusing the MV to the Tribunal.

ISSUES

20The Tribunal considers each of the four tests articulated in s. 45(1) of the Act as separate issues below. In the context of each issue, the Tribunal also considers whether the proposed MV has regard for matters of Provincial interest under s. 2 of the Act and is consistent with the PPS. It is noted that the Appellant bears the onus of demonstrating that all four tests in s. 45(1) have been satisfied.

21At the Rehearing, the Appellant presented Eldon Theodore, a Registered Professional Planner and member of the Canadian Institute of Planners to provide opinion evidence. The City presented Jennifer Catarino, also a Registered Professional Planner and member of the Canadian Institute of Planners, to provide opinion evidence on its behalf. The Tribunal considered each of their qualifications and experience with the matter at hand and qualified them both to provide opinion evidence to the Tribunal.

Issue 1: Does the requested MV maintain the general intent and purpose of Zoning By-Law 6593?

22The witnesses for both Parties testified that it is necessary to consider s. 19. (1).2 of the City ZB that applies to secondary dwelling units in lands zoned “Urban Protected Residential” to evaluate whether the MV maintains the general intent and purpose of the City ZB. Lands designated Urban Protected Residential may have a primary and a secondary dwelling unit, and with respect to the Property, subject to the site-specific modification in the Site Specific ZB. Both witnesses opined that s. 19. (1).2 sets out regulations applicable to secondary dwelling units, being:

a. Limitation of a maximum of two bedrooms;

b. Maximum building height of 6 m; and

c. Limitation that the GFA of a secondary dwelling unit shall not exceed the lesser of 75 square metres or the gross floor area of the principle dwelling.

23The witness for the Appellant testified that the general intention and purpose of the floor area restriction in the City ZB is so that a secondary dwelling unit remains subordinate in function to the primary dwelling unit. Mr. Theodore testified that since the Primary Unit has a GFA of 201 sq m, granting the MV to facilitate the SDU expansion by 35 sq m to 124 sq m, would not undermine the relationship between the Primary Unit and the SDU. Therefore, Mr. Theodore opined that the intent and purpose of the City ZB is maintained. Mr. Theodore also testified that under the City ZB, the Appellant could redevelop the Primary Unit to a larger two storey structure “as of right” that would dominate the two storey SDU. Mr. Theodore also testified that, if it was the objective of the City to limit the height of the SDU, then a condition to that effect would have been included in the Site Specific ZB.

24Counsel for the Appellant advocated that the MV maintains the general purpose and intent of the City ZB because:

1. The Site Specific ZB does not limit the height of the SDU.

2. The SDU is consistent with the Site Specific ZB and therefore cannot lead to a built form that is out of character for the neighbourhood.

3. The MV is for additional “livable space” and the intended use of the space as four additional bedrooms should not be part of the Tribunal’s consideration since, under recent legislative changes, no restrictions on bedrooms apply to secondary dwelling units.

4. If the MV is granted, the SDU will still have less GFA than the primary dwelling unit (which includes the GFA for the legal basement apartment) as required by the City ZB s. 19. (1).2(c) which prohibits the secondary dwelling unit from being larger than the primary dwelling unit.

25On behalf of the City, Ms. Catarino testified that the requested MV does not maintain the general intent and purpose of the City ZB because, if granted, the SDU would be 7.9 m in height contrary to the maximum limit of 6 m set out in s. 19. (1).2 and, therefore, the SDU would be larger in size and scale than the single storey primary dwelling. Despite the second storey already existing, Counsel advocated that the MV would recognise the attic space as GFA and thereby permit occupancy of the second storey which would not be consistent with the City ZB.

26Ms. Catarino opined that it is necessary for the Tribunal to look at the intent of the Site Specific ZB that facilitated the SDU to evaluate the requested MV. To that end, Ms. Catarino testified that the intent and purpose of the Site Specific ZB was to authorize the SDU with the site specific conditions premised on the underlying intent and purpose of the policies in the City ZB limiting the height of a secondary dwelling unit to 6 m Ms. Catarino testified that City Staff erred by not restricting the SDU to a single storey in the Site Specific ZB; however, the Tribunal dismissed this assertion as to the mindset of City Staff as hearsay since it was not premised on evidence before the Tribunal that could be tested.

27Ms. Catarino testified that City ZB s. 19.(1).2 was considered by City Staff when they evaluated the ZB Application, although since then, legislative changes aimed at reducing barriers to creating secondary dwelling units have removed the ability for municipalities to restrict the number of bedrooms in a secondary dwelling unit (Ontario Regulation 299/14 as amended by Ontario regulation 462/24) or employ Floor Space Index to restrict the size of a secondary dwelling unit (Ontario Regulation No. 462/24 implemented through City initiated Zoning By-law No 25-038). Ms. Catarino opined that the Site Specific ZB does not contravene these legislative changes since (1) it does not use Floor Space Index to regulate the size of the SDU and (2) maximum height and minimum setbacks are allowable under Ontario Regulation 462/24 such that that the 6 m maximum height restriction in the City ZB is compliant.

28Counsel for the City looked to the cases of Robinson, Re 2019 CarswellOnt 12408 (TLAB) (“Robinson”) and Holt v. Wilmot (Township) 2000 CarswellOnt 6065 (OMB) (“Holt”) to suggest that the Tribunal should approach conformity of the MV with the City ZB from the position “as if” the second storey did not exist. In those two cases, minor variances were requested after the construction of the built space in question for the minor variance. In Holt, two sheds were constructed and subsequently a minor variance was sought to authorize their setbacks on the property. In Robinson, minor variances related to an attic conversion were sought where zoning permission was presumed at construction but the attic built space predated the existing zoning by-laws for lot coverage. In both cases, the requested minor variance would retroactively authorize a built form that was constructed without, or before, permission could be granted.

29Counsel for the City pointed to Holt and Robinson as analogous to the case at hand because the second storey of the SDU was not authorized or contemplated under the Site Specific ZB which, in turn, is underpinned by the City ZB that restricts secondary dwelling units to a single storey. Therefore, Counsel advocated that the MV is essentially requesting retroactive zoning permission for use of the second storey space that was legally constructed under the Building Permit but not authorized (nor prohibited) under the Site Specific ZB. Using this analytical approach, Counsel advocated that the Tribunal should deny the MV since the secondary storey would be prohibited under the City ZB s. 19. (1).2 that restricts the height of a secondary dwelling unit to 6 m

30Counsel for the Appellant sought to distinguish Holt and Robinson from the facts in this case. Counsel advocated that since the second storey on the SDU legally exists, the MV is not a case of the Appellant seeking retroactive approval and therefore the Tribunal should not use the analytical approach in those cases to the tests in s. 45(1) “as if” the second storey does not exist.

31Counsel for the Appellant looked to Robinson for a different proposition since the Toronto Local Appeal Body (“TLAB”) ultimately approved the minor variance with conditions in that case. Counsel advocated that Robinson supports their case in the final decision where the TLAB concluded that there is “no undue impact or failure to meet any of the four tests [for a minor variance] in the allowance of an increase in FSI premised on making greater use of existing floor space within a structure”.

32The Tribunal must determine what is the intent and purpose of the City ZB and Site Specific ZB in order to evaluate the MV against it. In this case, the Site Specific ZB modifies and provides relief from the general provisions in the City ZB and grants permission for the SDU. The Tribunal accepts the evidence of both planners that (1) the SDU is smaller than the total GFA of the primary dwelling unit since the legal basement apartment is included for that dwelling unit; and (2) recent Provincial regulations have removed the ability for municipalities to restrict the number of bedrooms in a secondary dwelling unit. The Site Specific ZB is silent on the maximum height of the SDU and its two-storey built form is the result of the iterative building permit process that was premised on the attic not being living space.

33Having considered the submissions of counsel and the witnesses, the Tribunal agrees with the witness for the City’s testimony that the intent and purpose of the City ZB is that a secondary dwelling unit is to be a single storey in height in order to maintain its subordination to the primary dwelling unit in size and presence. To that end, the Site Specific ZB was granted providing specific modifications to the setbacks and parking and delineating a maximum GFA of 89 sq m for the SDU but was silent on height of the unit, relying on the underlying City ZB. The fact that the building permit process granted the Appellant permission to construct a different roofline than shown in the ZB Application, despite the City ZB s. 19. (1).2 restricting height to 6 m, does not mean that by extension, the requested MV to utilize that iterative space is now consistent with the City ZB.

34The Tribunal finds the intent and purpose of the City ZB to control and minimize the height and scale of a secondary dwelling unit is clear and is not swayed by the Appellant’s position that simply because the second storey now exists, it can be converted to additional bedrooms and not offend the City ZB or the rationale behind the Site Specific ZB permissions.

35The Tribunal considers the “as if not existing” test used in Holt and Robinson to be an interesting approach but not necessary to arrive at the Tribunal’s conclusion that the MV does not maintain the intent and purpose of the City ZB in this case.

36The Tribunal disagrees with the opinion of the witness for the Appellant that if it was the City’s objective to limit the height of the SDU, then the Site Specific ZB would necessarily contain a specific height limit. Silence in the Site Specific ZB does not negate the intention of the underlying City ZB. The Tribunal finds that the City ZB clearly establishes a provision regime where secondary dwelling units should not have a second storey. The fact that the second storey of the SDU exists through silence as to height in the Site Specific ZB does not mean that the intent of the underlying City ZB disappears. If the Tribunal were to approve the MV, the Tribunal finds that this would contribute to undermining the intention and purpose of the City ZB provisions that regulate secondary dwelling units.

37For the reasons above, the Tribunal finds the MV does not meet the general intent and purpose of the City ZB with respect to height and fails this test under s. 45(1) of the Act.

Issue 2: Does the requested MV maintain the general intent and purpose of the UHOP?

38Counsel for the Appellant asserted that the City’s dispute with the MV is actually with the existing two-storey built form of the ADU achieved through the iterative building permit process that differs from the original one-storey proposal in the ZB Application, and not the MV itself. Counsel took the position that the City is conflating how the MV is overbuilding or inconsistent with the neighbourhood when it already legally exists.

39Mr. Theodore testified that the MV facilitating the conversion of the attic space to livable space maintains the general intent and purpose of important UHOP and Ainslie Secondary Plan policies by assisting to: (1) provide a full range of housing types, forms and densities, (2) deliver on residential intensification policies and policies that support the development of rental housing, (3) deliver on policies that support “gentle intensification” that encourage intensification of secondary dwelling units within an established built-up neighbourhood without exterior changes or the build out of dormer windows, and (4) maintain the character of the neighbourhood.

40On behalf of the City, Ms. Catarino testified that the requested MV does not maintain the general intent of the UHOP, in particular Policy B.2.4.2.2 c) which states that, when considering an application for residential intensification in the Neighbourhoods designation, the relationship of the proposed building(s) with the height, massing and scale of the nearby residential buildings is to be evaluated. Ms. Catarino testified that the SDU, as constructed under the Building Permit, is wider and taller than the surrounding accessory structures in the neighbourhood and thereby contravenes this policy.

41Ms. Catarino also testified that the proposed MV contravenes Policy 6.2.5.3 c) of the Secondary Plan which sets out that changes to existing housing stock, such as new infill and renovations…shall be encouraged to reflect the similar housing styles, massing, height and setbacks and other elements of the adjacent homes. The same policy also states that the City shall limit overbuilding on properties to maintain compatibility within the neighbourhood. Ms. Catarino opined that the second storey on the SDU contravenes these policies because it does not reflect the massing and other elements of the style of the neighbourhood of predominantly single storey homes and would constitute incompatible overbuilding by the addition of GFA to the second storey.

42Counsel for the City again relied on the analytical approach in Holt and Robinson set out in the previous issue, to suggest the Tribunal should approach the question of whether the MV meets the intent and purpose of the City OP from the perspective that the SDU second storey is not already constructed. Counsel advocated that if the Tribunal were to employ this approach, it would find the MV violated the policies limiting overbuilding and incompatible style.

43The Tribunal does not agree with the position of Counsel and the witness for the City that if the attic were converted to living space, it would constitute an overbuilding contrary to Ainslie Secondary Policy 6.2.5.3, and that the second storey itself does not reflect the style of the neighbourhood. This would be true if the Tribunal were bound to apply the “as if not existing” test from Robinson and consider the MV from the perspective that the second storey does not exist, then the MV would be contrary to these policies since it would require the theoretical construction of the second storey. As noted in the previous issue, the Tribunal is not bound by the test in Robinson.

44Having considered the evidence and legal submission of the Parties, the Tribunal finds that the MV maintains the broad intent and purpose of the UHOP by providing intensification for rental housing in an appropriate location in the City that delivers on broader policy goals. The MV is compliant with UHOP Policy B.6.2.5.3 that restricts attic conversions for living space by the build out of dormers since the MV does not require dormers. As such, the Tribunal finds the MV passes this test in s. 45(1) of the Act.

Issue 3: Is the Requested Variance Minor?

45Counsel for the Appellant advocated that the test of whether the requested variance is minor should be assessed solely from the position that the MV is only for the use of the second storey not the two-storey built form of the SDU. From this, counsel concluded that, since the second storey of the SDU is legally constructed and existing, there cannot be any unacceptable land use impacts on the neighbourhood by allowing the use of the attic to convert to living space.

46Mr. Theodore testified that the City had put forward no evidence or allegation of negative land use impacts, such as shadow or privacy concerns, and opined that the MV is mathematically nominal and will not create adverse impacts on the neighbouring homes. On cross examination, Mr. Theodore acknowledged that when considering whether a minor variance is “minor”, the fact that the variance is invisible (i.e., a change of use) does not mean that the variance is necessarily minor in its totality.

47Counsel for the Appellant relied on the conclusion in Smith v. Hastings Highlands (Municipality), 2024 CanLII 94863 (OLT) to stand for the proposition that where a proposed variance does not produce an unacceptable adverse impact, then it is likely minor in nature. Counsel relied on the case Vaduz, Re, 1997 CarswellOnt 7775 (OMB) where a variance was sought to increase the allowable GFA to facilitate conversion of an attic space to living space. In that case, the Ontario Municipal Board granted the variance and commented that whether the attic space is inhabited or not, it will not have such an adverse impact that the minor variance should not be approved. From this jurisprudence, Counsel for the Appellant concluded that the City’s concerns are really about the legally existing second storey not the MV itself, which if granted, will have no land use impacts.

48Both witnesses testified that the Appellant’s stated intention for the MV would be to increase the bedroom count in the SDU to eight bedrooms, with another eight bedrooms existing in the principal dwelling, for a total of 16 bedrooms on the Property. Ms. Catarino opined that the MV does not amount to “gentle intensification” fulfilling municipal and Provincial policies, because sixteen bedrooms on the Property cannot be construed as “gentle” intensification on a single residential lot and would intensify the use of the Property far outside of what is contemplated in the Site Specific ZB.

49Ms. Catarino also opined that granting permission to use the attic GFA deviates further from the intent of the City’s planning framework as applied to secondary dwellings and therefore is not minor. On cross examination, Ms. Catarino expanded on this position and opined that the MV, if granted, may have a cumulative impact on the built form of the streetscape in the neighbourhood by establishing a precedent for future two storey secondary dwelling units.

50Counsel for the City relied on DeGasperis v. Toronto (City) Committee of Adjustment 2006 CarswellOnt 4080, 23 OMBR 305 (“DeGasperis”), a decision of the Committee of Adjustment, to stand for the proposition that the test of whether a minor variance is minor is not a mathematical calculation but rather depends on the context of what is proposed and its affect if any on adjacent properties and the proponent must prove minimal impact in the context of the proposal and its affect if any on adjacent properties.

51Having reviewed the submissions of both Parties, the Tribunal finds it does not agree with the narrow evaluation advanced by Counsel for the Appellant. As set out in DeGasperis, evaluating whether the MV is “minor” must be done in the broader context of the SDU as the secondary dwelling unit and the totality of the existing permissions, not in isolation.

52The Appellant’s position that the MV is minor because it is merely affecting an internal change to the Property in the attic space ignores the broader context of the SDU and attempts to reduce the request as if it can be viewed as merely an addition of 35 sq m of GFA, divorced from the broader evaluation of site specific permissions and the intent and purpose of the policies and provisions governing secondary dwelling units. When viewed collectively, the totality of permissions on the Property, along with the addition of 35 sq m of additional living space in the attic of the SDU is not a minor addition of living space. The Tribunal is mindful of the caution levied by the witness for the City that granting the MV may contribute to establishing a precedent two storey secondary dwelling unit built form in the neighbourhood contrary to the City ZB provision restricting height.

53The Tribunal finds that the MV, when analyzed in the context of the Property and existing SDU permissions, is not minor in nature and fails this element of the test in s. 45(1) of the Act.

Issue 4: Is the MV an appropriate use for the development of the land, building or structure?

54Counsel for the Appellant set out the position that the MV is desirable for the use and development of the Property for five reasons:

1. It is consistent with policies in the PPS 2024 and s. 2 of the Act that advocate for a range of housing options directed to built up areas and the efficient use of existing infrastructure and resources since it will provide additional rental housing in an existing community and built form, resulting in “gentle intensification”;

2. The MV does not alter the exterior of the SDU and complies with all other applicable zoning provisions;

3. The additional living space is appropriate because of the location of the Property close to McMaster University and walking distance to transit and other amenities;

4. The additional living space is not in conflict with the approved three storey townhouse project directly behind the Property (with a nine-storey apartment building as part of the same approval); and,

5. Whether the attic is inhabited or not as enabled by the MV, the same two-storey built form will continue to exist on the Property.

55Mr. Theodore opined that not granting the MV and thereby restricting the GFA in the SDU to what exists in the Site Specific ZB would be in opposition to Provincial objectives to increase rental housing.

56Ms. Catarino testified that the matters of Provincial interest, namely the provision of additional dwelling units in the City, was assessed at the time the application for the Site Specific ZB was reviewed by City Staff. Ms. Catarino testified that the SDU delivers on the Provincial objectives for rental housing as it exists now under the Site Specific ZB, and that it is not necessary to add additional GFA in the attic to deliver on those objectives. On cross examination, Ms. Catarino opined that the MV would overreach Provincial policy goals and change the intended use of the SDU from the City’s original approval as a four-bedroom dwelling unit thereby having a cumulative impact on the consideration of future applications for secondary dwelling units.

57Having considered the submissions of the Parties, the Tribunal agrees with the City’s witness that delivering on Provincial objectives for intensification in built-up areas and additional rental housing were duly considered in the Site Specific ZB permissions and that granting the MV for additional living space is not necessary to deliver these objectives. Further, although the second storey attic space exists through the iterative building permit process, additional GFA in the SDU is not necessary since rental housing is already being provided through the existing permissions.

58The Tribunal finds that the granting the MV would not result in a desirable use of the attic space contrary to the test in s. 45(1) of the Act.

MV CONDITIONS FOR STORMWATER MANAGEMENT

59In the Staff Report to the COA, City Staff requested that if the MV were approved, two conditions for a stormwater management report and for a letter of credit for related storm water infrastructure be fulfilled by the Appellant. Counsel for the Appellant disputed the validity of the SWM Conditions since the MV does not propose any exterior changes to the SDU or the Property, only a change of interior use. Counsel for the City advocated that the Appellant had produced no engineering witness to provide direct evidence to the Tribunal that can be tested for the truth of it contents and therefore the SWM Conditions should stand if the MV is granted.

60Having found that the MV does not meet all four tests under s. 45(1) of the Act and is not good planning, the Tribunal need not adjudicate the merits of the SWM Conditions.

CONCLUSION AND SUMMARY OF FINDINGS

61Having considered the submissions of the Parties and the viva voce and written evidence of their respective planning witnesses, the Tribunal finds that the MV fails three of the four tests under s. 45(1) of the Act for the reasons summarized below:

a. The MV to convert the attic to additional GFA does not meet the intention and purpose of the City ZB because it would authorize the SDU use above the 6 m maximum height restriction contrary to the City’s policy intention for secondary dwelling units to be subordinate to the primary dwelling unit and the fact that the MV is sought within a building that exists does not mitigate this policy intention.

b. The MV meets the intent and purpose of policies in the UHOP and Ainslie Secondary Plan because the attic conversion does not rely on the build out of dormers, and it delivers on broad policies for intensification in existing neighbourhoods.

c. When analysed in context of the totality of permissions on the Property and with respect to the SDU, the MV is not minor in nature.

d. Granting the MV would not result in a desirable use for the attic space of the SDU since through the Site Specific ZB, the appropriate permissions for a secondary dwelling unit on the Property have already been considered and delivered.

ORDER

62THE TRIBUNAL ORDERS THAT the Appeal is dismissed and the variance to Zoning By-Law No. 21-020 is not authorized.

“A. Mason”

A. MASON

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.