Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 05, 2026

CASE NO(S).: OLT-25-000865

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

Applicant/Appellant: Kurtis Van Keulen

Subject: Consent - refused by Approval Authority

Description: To permit the development of semi-detached dwellings with two attached additional residential units

Reference Number: B24.25

Property Address: 1 Tecumseth Avenue

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-25-000865

OLT Lead Case No: OLT-25-000865

OLT Case Name: Van Keulen v. Mississauga (City)

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

Applicant/Appellant: Kurtis Van Keulen

Subject: Minor Variance

Description: To permit the development of semi-detached dwellings with two attached additional residential units

Reference Number: A244.25

Property Address: 1 Tecumseth Avenue

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-25-000866

OLT Lead Case No: OLT-25-000865

OLT Case Name: Van Keulen v. Mississauga (City)

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

Applicant/Appellant: Kurtis Van Keulen

Subject: Minor Variance

Description: To permit the development of semi-detached dwellings with two attached additional residential units

Reference Number: A245.25

Property Address: 1 Tecumseth Avenue

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-25-000867

OLT Lead Case No: OLT-25-000865

OLT Case Name: Van Keulen v. Mississauga (City)

Heard: March 26, 2026, by video hearing

APPEARANCES:

Parties

Counsel

Kurtis Van Keulen (assigned to Joseph Le)

Jennifer Meader Jacob Alaichi (student at law)

City of Mississauga

Alexandra Whyte

DECISION DELIVERED BY A. Mason AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the Decision arising from a two-day Merit Hearing of appeals pursuant to s. 45(12) and s. 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning the refusal by the Committee of Adjustment (“COA”) of the City of Mississauga (“City”) of Consent and Minor Variance applications (together “Applications”) for the property known municipally as 1 Tecumseth Avenue in the City (“Property”).

2At the time the Applications were submitted to the City and appealed, the owner was Kurtis Van Keulen (“Appellant”). The Property was subsequently sold to Joseph Le and the appeals duly assigned to him. As such, the Appellant for the purposes of the appeals and this Decision is Joseph Le.

3The Parties raised no concerns with Notice.

4The Property is a corner lot with 15.4 metres (“m”) frontage on Tecumseth Avenue and a side yard depth of 34.98 m on Cayuga Avenue in the Credit Grove neighbourhood. The Appellant intends to demolish the existing single detached house and construct a three-storey semi-detached dwelling containing two additional dwelling units (“ADU”) on each new lot, for a total of six residential units on the subdivided Property.

5The Consent application proposes to divide the Property into two new lots where the new “Severed Lot” is the corner lot and the interior lot is the “Retained Lot”.

6The Minor Variance application requests relief from six variances for the Severed Lot and three variances for the Retained Lot from the City of Mississauga Zoning By-law No. 0225-2007 (“Zoning By-law”). The variances relate to lot area, minimum lot frontage, lot coverage, minimum exterior side yard for the corner lot, maximum height of eaves, and minimum number of parking spaces to enable the construction of the proposed dwellings.

7Initially, the Applications were considered by the COA in August 2025 accompanied by a City staff report (“First Staff Report”), indicating no objection to the Applications. The Appellant requested a deferral to address an error, and revised applications were subsequently filed. The Applications came before the COA again in October 2025, accompanied by another staff report (“Second Staff Report”), again recommending support for the proposal. Despite both reports recommending approval, the COA refused the Applications. Subsequently, the Appellant appealed the refusal of the Applications to the Tribunal.

8At the core of these Appeals is whether the proposed Severed Lot and Retained Lot and the variances required to facilitate the development proposal are appropriate and respect the established built form and lot pattern in the Credit Grove neighbourhood. The Appellant’s position is that the proposal is an appropriate and context sensitive development in a stable neighbourhood that is undergoing change and reinvestment. From this perspective, the Appellant contends that the proposal provides a semi-detached built form that fits with the other newer subdivided lot sizes in the neighbourhood, that the proposed reduction in the side yard set back and other setbacks for the corner Severed Lot do not have an adverse effect or that any impacts are mitigated by the location of an adjacent parking lot, and that the proposed building massing and parking are appropriate given the location. The Appellant takes the position that the Consent meets the applicable tests in s. 53(19) of the Act, but disputes one Condition of Provisional Consent as unreasonable and asks the Tribunal amend the proposed Conditions to remove it.

9The City takes the position that the variances to maximum lot area and minimum lot frontage that are necessary to facilitate creating the corner Severed Lot are cumulatively unreasonable and not in keeping with the other corner semi lots in the surrounding stable neighbourhood. Further, the City disputes the other variances to the building envelope and built form taking the position they result in a building that is an overdevelopment of the Property. The City contends the cumulative effect of the variances is contrary to policies that require respect for the existing character of the neighbourhood of small lots with small buildings and that they will result in an undesirable building.

10For the reasons set out below, and having considered the written submissions and oral testimony of the Parties, the Tribunal finds that the two variances required to create the corner Severed Lot, being a reduction in minimum lot area and reduced lot frontage, meet the tests in s. 45(1) of the Act and are allowed. The variances related to the building envelope, being the reduction in exterior side yard setback for the Severed Lot and increased lot coverage for both lots, meet the tests in s. 45(1) of the Act and are allowed. The Tribunal finds that the variance to increase the maximum height of eave to facilitate the windows and doors within the roof line in the development proposal meets the test in s. 45(1) of the Act as the variance is incidental to the architectural style and is allowed. The variance to decrease the number of parking spaces for both lots from two spaces to one space does not meet the test in s. 45(1) of the Act and is not allowed. Finally, the appeal of the Consent is allowed, and provisional consent is given subject to the full list of Conditions of Provisional Consent without amendment in the Second Staff Report.

STATUS REQUESTS

11A Participant status request was received by the Tribunal prior to the Hearing from Jason Ellis, a neighbourhood resident, who objected to the proposal. Mr. Ellis’ objections are that the proposal is an overdevelopment of the Property, the parking proposal will create sidewalk obstructions, the roof height and massing of the building are excessive and, overall, the proposal is not in keeping with the neighbourhood. The Tribunal granted Participant status to Mr. Ellis without objection from the Parties.

APPLICABLE LEGISLATION

12Where there are applications for Minor Variance and Consent that are structurally dependent so that the lots resulting from the severance are only functional if the Minor Variances are granted, the Tribunal considers the variances first. This is because it is the granting of the variances that enable the requested severances to be in compliance with the relevant zoning by-law and thereby meet the tests of “good planning”.

13With respect to Minor Variances, as prescribed in s. 45(1) of the Act, the Tribunal must be satisfied that the variances:

1. Maintain the general intent and purpose of the applicable official plan;
2. Maintain the general intent and purpose of the applicable zoning by-law;
3. Are desirable for the appropriate development or use of the land, building or structure; and,
4. Are minor in nature.

14With respect to the Consent 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 so satisfied, regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard for matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans; 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.

15Further, as with any planning decision, the Tribunal must independently assess and be satisfied that the Consent and Minor Variances are consistent with the Provincial Planning Statement, 2024 (“PPS”) and have regard to matters of Provincial interest in s. 2 of the Act, as well as have regard to the decision of the Approval Authority and the information that was before it. Additionally, the Tribunal must decide whether the proposal is representative of good planning and in the public interest.

PROPOSAL DETAILS, WITNESSES, AND ADDITIONAL BACKGROUND

16The City Official Plan (“City OP”) and the Port Credit Local Area Plan (“Port Credit Plan”), which forms part of the City OP, both designate the Property as “Neighbourhoods”. The Port Credit Plan also contains the local policies for the Credit Grove North Residential Neighbourhood where the Property is located.

17The lands are zoned “Residential Small Lot” with a site-specific exception R2-284 in the Zoning By-law. The “R2” zone permits both single and semi-detached dwellings. The Zoning By-law permits up to two ADUs within each semi-detached dwelling for a total of three units in each semi-detached dwelling.

18The Region of Peel Official Plan (“Region OP”) identifies the Property as within the Urban System which permits single and semi-detached residential dwellings.

19The surrounding neighbourhood area is characterized by a mix of low rise single detached houses and newer single and semi-detached residential redevelopment, along with a few three-storey walk-up apartment buildings. Directly adjacent to the rear of the Property is a City owned parking lot zoned “Commercial”.

20The Minor Variances required to facilitate the proposed Consent subdividing the Property into the Severed Lot and Retained Lot and to construct the proposed semi-detached dwelling are as follows:

Zone standard	Severed Lot (corner) Required	Severed Lot (corner) Proposed	Retained Lot (interior) Required	Retained Lot (interior) Proposed
Min. Lot Area	280 sq m	266.38 sq m
Min. Lot Frontage	9.8 m	7.62 m
Max. Lot Coverage	45%	47.26%	45%	49.32%
Min. Exterior Side Yard	3.5 m	1.2 m
Max. Height of Eaves	6.4 m	8.45 m	6.4 m	8.45 m
Min. Parking Spaces	2 spaces	1 space	2 spaces	1 space

21The Appellant presented David Riley, a full Member of the Canadian Institute of Planners, the Ontario Professional Planners Institute, and a Registered Planner (Ontario). Under summons, the Appellant also presented Shivani Chopra, the Committee of Adjustment Planner responsible for the Applications and who authored the two Staff Reports. Ms. Chopra is a pre-candidate Member of the Canadian Professional Planner Institute. The Tribunal qualified both witnesses without opposition from the City to provide opinion evidence in the area of land use planning.

22The City presented Allan Ramsey, a full Member of the Canadian Institute of Planners, the Ontario Professional Planners Institute, and a Registered Planner (Ontario). Mr. Ramsey was qualified by the Tribunal without opposition to provide opinion evidence in the area of land use planning.

23Uncontested findings that are relevant to the Tribunal’s deliberation are as follows:

1. The three witnesses agreed that the Applications have regard for the relevant matters of provincial interest in s. 2 of the Act because the Property is located within the City in an established neighbourhood and meets the policy objectives of: i. efficient use of infrastructure and services; ii. orderly development of safe and healthy communities; iii. provision of a full range of housing opportunities; iv. appropriate location of growth; and v. transit supportive and pedestrian orientated development.
2. The witnesses agreed that the Applications are consistent with PPS policies that direct growth to settlement areas to promote the existing use of land and infrastructure because the Property is located in a built-up urban area, close to transit, and the redevelopment into two lots will facilitate modest intensification that aligns with the efficient use of land.
3. The proposed use of semi-detached dwellings with two ADUs is permitted as of right and meets City OP policies supporting intensification and delivering a broader range of housing choices.
4. No additional parking is required under the Zoning By-law to facilitate the ADUs.
5. The witnesses agreed that the Applications generally conform to applicable policy objectives in the Region OP that direct optimizing existing infrastructure and gentle intensification in built-up areas with transit infrastructure.
6. The City OP and Port Credit Plan establish that “Neighbourhoods” are stable areas, but some change is anticipated and is not expected to mirror existing development. New development is to be sensitive to the character of the area, compatible with the existing built form and scale, and enhance the existing and planned development.

24A few days before the Merit Hearing, a new City Official Plan (“New OP”) was approved that streamlines and simplifies the existing City OP. Mr. Ramsey and Mr. Riley both testified at the Hearing that the provisions in the New OP that apply to the Applications are not materially different from the City OP, and that their opinions in their witness statements rendered before the New OP are unchanged. Regardless, the Tribunal finds it is appropriate to apply the “Clergy Principle”¹ such that the Applications are assessed according to the official plan policies in force at the time they were submitted and that policies that are adopted or brought into force after submission are relevant but not determinative.

MINOR VARIANCES

25As noted already, the witnesses and Staff Reports agree that the proposed development facilitated by the Minor Variances and Consent is consistent with the PPS and s. 2 of the Act, and conforms to the Region OP. The Tribunal accepts this uncontroverted evidence and, in this section, focuses on whether the variances meet the tests in s. 45(1) of the Act.

Variances Related to Lot Creation for the Severed Lot (Lot Area and Lot Frontage)

26The Tribunal first considers the two variances required create the corner Severed Lot and thereby facilitate the Consent, as follows:

1. Variance for Lot Area: to permit a minimum lot area of 266.38 square metres (“sq m”) whereas the Zoning By-Law requires a minimum lot area of 280 sq m.
2. Variance for Lot Frontage: to permit a minimum lot frontage of 7.62 m, whereas the Zoning By-Law requires a minimum lot frontage of 9.80 m.

27On behalf of the Appellant, Mr. Riley provided testimony based on a study area that is a portion of the Credit Grove neighbourhood directly around the Property. Mr. Riley’s witness statement and oral testimony compared the proposed Severed Lot against lot dimension data in his study area for interior and corner lots grouped together for the purposes of evaluating the lot creation variances.

28Based on his review of the direct neighbourhood study area and the proposed Severed Lot, Mr. Riley testified that the two lot creation variances maintains the general intent and purpose of the relevant policies in the City OP and are justified because:

1. The proposed Severed Lot is the same size as many other (interior) lots in the immediate neighbourhood and meets policies permitting sensitive infill that is compatible to built form and scale in existing neighbourhoods;
2. The proposed development facilitated by the Severed Lot conforms to policies regarding complete communities by providing a range of housing types and supporting affordability.
3. The corner Severed Lot is smaller than other corner lots in the study area but is consistent with nearby interior lot sizes and is compatible infill.

29Mr. Riley testified that the Zoning By-law requires additional corner lot width and exterior lot area compared to interior lots to ensure property access, corner sightlines for traffic, maintain compatible setbacks and mitigate any massing impacts on adjacent buildings. Mr. Riley opined that the two variances conform to the intent and purpose of the Zoning By-Law for the RS zone because:

1. The Severed Lot will function properly for residential use and the proposed semi-detached building is appropriately accommodated in a symmetrical manner within it;
2. Is similar in scale and character to other semi-detached lots as demonstrated by comparable lot sizes and frontages in the study area data for the immediate neighbourhood;
3. The built form that facilitated by the lot creation variances respects the existing scale and massing of other semi-detached buildings in the neighbourhood;
4. The variances create no negative impact on traffic sightlines at the corner.

30The First Staff Report authored by Ms. Chopra states that the proposed reduction in lot area is numerically minor, does not change the lot fabric of the neighbourhood, and meets the intent of the Zoning By-law to ensure new lots are appropriately sized and fit within the surrounding context. The proposed lot frontage is characterized as reflective of the existing eclectic area context that contains a range of lot sizes. Overall, the two Staff Reports recommended approval of both lot creation variances because they fit in the existing lot patterns and streetscape while also adequately accommodating the proposed semi-detached dwelling.

31On behalf of the City, Mr. Ramsey testified about the character of the area and lot sizes based on his study area of the whole Credit Grove neighbourhood (253 total, comprised of 148 single, 101 semi-detached, and 4 walk-up apartments). Mr. Ramsey compared the Severed Lot to other corner lots for the purpose of evaluating the proposed Minor Variances and delivering his planning opinion.

32Based on his study area data, Mr. Ramsey testified that corner lots were consistently larger in area than interior lots with the average corner semi-detached lot being approximately 327.08 sq m. Based on comparison to the 10 other semi-detached corner lots in the Credit Grove neighbourhood, Mr. Ramsey testified that there were only two other lots of similar area at 273.45 sq m. and 275.29 sq m compared to the Severed Lot proposed at 266.38 sq m. From this, Mr. Ramsey opined that the proposed Severed Lot would be the smallest corner lot for a semi-detached dwelling in the Credit Grove neighbourhood and contrary to the general intent and purpose of the City OP and Port Credit Plan policies that direct intensification to respect existing lot patterns and character of the area.

33With respect to the reduction in lot frontage for the Severed Lot, Mr. Ramsey testified that there are five corner semi-detached lots with the same lot frontage of 7.62 m in the Credit Grove neighbourhood, but that the average frontage of semi-detached lots was 8.64 m. Mr. Ramsey opined that the character of the Credit Grove neighbourhood is defined by small lots with small houses and larger lots located at the corners such that the lot creation variances will result in an undersized corner lot. Further, he opined that the zone standards ensure a consistent lot pattern in the neighbourhood that is undermined by the proposed Severed Lot. He concluded that the impact of the lot creation variances is not minor because it will facilitate overdevelopment of the Property that is out of character with the area, contrary to the existing lot pattern and undesirable.

34Overall, it was Mr. Ramsey’s opinion that the two lot creation variances required to create the Severed Lot do not satisfy the tests in s. 45(1) of the Act because they will result in the smallest corner semi-detached lot in the Credit Grove neighbourhood and thereby do not maintain the general intent and purpose of the City OP and Port Credit Plan, or the Zoning By-law, to maintain the neighbourhood character and established lotting pattern, are not minor in nature or desirable for the development of the Property or area.

Analysis

35The Tribunal finds the difference between the position of Mr. Ramsey and Mr. Riley comes down to how they define what constitutes the character of the Credit Grove neighbourhood and semi-detached corner lots in particular. Mr. Riley’s approach compares the proposed Severed Lot to both interior and corner semi-detached lot within his immediate neighbourhood study area. Since similar lot frontages exist in the study area (although in interior lots), Mr. Riley opines that the proposed Severed Lot maintains the general intent and purpose of the City OP and Port Credit Plan policies that that direct infill development to preserve existing lot patterns, setbacks, and the character of the area.

36Mr. Ramsey’s approach differentiates semi-detached corner lots from interior lots, taking the position that the Zoning By-law, establishes different standards for corner lots that direct larger lot areas, increased exterior side yards, and wider frontage. The empirical data from his larger study area demonstrates that, even when subdivided, corner lots are generally larger in area with wider frontage than interior lots. From this, he concludes that the proposed Severed Lot would be the smallest in the Credit Grove neighbourhood and contrary to policies directing intensification to respect the existing lot pattern and continuity of the area character. Mr. Ramsey characterizes the two variances cumulatively as working together to allow for the overdevelopment of the Severed Lot contrary to the general intent and purpose of policies directing preservation of the character and smaller houses on smaller lots and existing lot patterns.

37Looking at the empirical data provided by Mr. Ramsey, the Tribunal finds that there are examples to support the lot creation variances in the neighbourhood. Within the 10 other semi-detached corner lots, the data shows that there are five other semi-detached corner lots with the same lot frontage and two with slightly larger lot areas. The Tribunal finds the data relevant in support of Mr. Riley’s opinion, and the Staff Report conclusion, that the Severed Lot are not out of character with the lot fabric of the neighbourhood.

38On the evidence provided by the witnesses, the intent of the Zoning By-law standards that provide for wider semi-detached corner lots compared to interior lots, is to allow adequate space for access and utilities, ensure proper traffic sightlines, provide adequate buffer between structures and the boulevard public realm, and ensure new lots are appropriately sized and fit the context of the neighbourhood. The empirical data provided in Mr. Ramsey’s witness statement demonstrates that the proposed lot frontage is seen in five other corner lots in the neighbourhood. Although the lot area variance will result in the smallest lot in the neighbourhood, the difference from the next smallest lot is minimal at 7.07 sq m. The Tribunal finds the difference in lot area of the Severed Lot compared to other semi-detached lots is not significant and will not result in negative impacts on the neighbourhood or adjacent properties.

39Overall, the Tribunal finds that the lot frontage variance and lot area variances meet the intention of the Zoning By-law because of the eclectic pattern of lots with frontages corner semi-detached lots of equal frontage and similar lot areas in the neighbourhood demonstrated in the empirical study data presented by both witnesses. Similarly, the Tribunal is satisfied that City OP policies directing new development have regard for the existing neighbourhood street and block pattern, including the lot frontages and areas, has been met.

40For the reasons set out above, the Tribunal finds the two lot creation variances meet the tests in s. 45(1) of the Act and constitute good planning.

Variances Related to Building Envelope (Exterior Side Yard setback for Corner Lot and Lot Coverage for Both Lots)

41The Tribunal next considers the two variances that relate to establishing the building envelope, as follows:

1. Variance to Exterior Side Yard for Severed Lot: to permit a minimum exterior side yard of 1.2 m whereas the Zoning By-law requires 3.5 m.
2. Variance to Maximum Lot Coverage for Both Lots: to permit an increased maximum lot coverage from 45% permitted under the Zoning By-law to 47.25% for the Severed Lot and 49.32% for the Retained Lot.

42Both Mr. Riley and Mr. Ramsey testified that the general intent and purpose of City OP and Port Credit Plan policies requiring new development preserve the small building masses on small lots in the Credit Grove neighbourhood was to ensure new development respects and enhances the established character of the area. They testified similarly that the general intention of the maximum lot coverage standard in the Zoning By-law is to ensure that an appropriate balance is provided on a lot between the areas occupied by structures and other elements such as landscaping, and that the zone standard works together with other zone standards to establish an appropriate buildable envelope.

43On behalf of the Appellant, Mr. Riley characterized the proposed development as exceeding the maximum permitted lot coverage by a marginal amount (2.26% for the Severed Lot and 4.32% for the Retained Lot) and that, despite the increase, the development proposal is minor and generally consistent with other zoning standards, because:

1. The minimum front yard setback is met for both lots,
2. The minimum interior side yard setback is met for the Retained Lot, and
3. The maximum permitted dwelling depth is met for both lots.

44Mr. Riley opined that the minor increase in lot area coverage is appropriate and maintains the general intent of the Zoning By-law and meets policies of in the City OP directing preservation of the character of the area. Mr. Riley opined that the variance to reduce the exterior side yard set back on the Severed Lot conforms to the general intent and purpose of the Zoning By-Law for the RS zone because:

1. The immediate context of the adjacent municipal parking lot to the rear of the Property means that the most impacted property is zoned commercial and has a 0 m exterior side yard setback, effectively making the Severed Lot a transition to the broader residential neighbourhood that appropriately accommodates the variances and mitigates any negative impact.
2. The reduced exterior side yard facilitates a balanced and symmetrical building form, allows for proper vehicle sightline at the corner and does not result in adverse impacts on the neighbourhood or disrupt the streetscape.

45The First Staff Report states that the lot coverage zone standard restricts lot coverage to ensure there is not overdevelopment of a lot that impacts the streetscape and adjacent properties. It goes on to state that staff is of the opinion that the requested variance for both the Severed Lot and Retained Lot are appropriate, do not represent overdevelopment, and are in line with older and newer dwellings in the surrounding neighbourhood. As a result, it concluded the lot coverage variance is minor in nature and is appropriate development of the site. Under summons, Ms. Chopra testified that the balcony projections on the front and back of the dwellings are responsible for 1% of the overall lot coverage, and the porch accounts for a further 1%.

46The First Staff Report states that the general intent and purpose of the exterior side yard setback standard in the Zoning By-law is to provide an adequate buffer between massing of structures on adjoining properties and the public realm, provide unencumbered access to the rear yard, and not impact existing drainage. The Staff Report goes on to state that the proposed reduction in the side yard setback for the Severed Lot is appropriate and does not impact the public realm, block rear yard access, maintains an adequate buffer, and does not raise drainage concerns.

47On behalf of the City, Mr. Ramsey testified that the lot coverage variance does not meet the intent of the Port Credit Plan policies because it facilitates overdevelopment of the site contrary to policies directing small building mass on small lots with well landscaped streetscapes. Mr. Ramsey also opined that that the variance is not minor in nature because the increase in lot coverage will negatively limit the amount of amenity space for the occupants in the dwellings. To this point, he estimated that the requested variance amounts to the building extends a further 1.5 m into the rear yard. He opined that this reduction of amenity space is particularly impactful for the proposed Severed Lot because the rear yard is already dedicated entirely to parking. When questioned by the Tribunal, Mr. Ramsey confirmed there is no zoning requirement for exterior amenity space.

48Mr. Ramsey testified that the variance to reduce the exterior side yard setback is contrary to the established pattern of streetscape and landscape pattern as well as the typical building separation that characterizes the Credit Grove neighbourhood. He testified that the reduced side yard does not fit the existing lot spacing pattern on Cayuga Avenue because it brings the building closer to the road and sidewalk, reduces the area for landscaping and open space, and enables a material increase in building mass of estimated 138 sq m additional floor area. Mr. Ramsey disagreed with Mr. Riley’s opinion that the Severed Lot functions as a transition from the Commercial to the Residential zones and that the reduced side yard is reasonable in that context. Instead, he opined that the Severed Lot should be evaluated against residential zone standards, not commercial. For these reasons, Mr. Ramsey concluded that the side yard variance contributes to overdevelopment of the Severed Lot and does did not meet the general intent and purpose of the City OP and Port Credit Plan policies that direct preserving small buildings on well landscaped streets and maintaining the continuity of setbacks and building massing in the neighbourhood.

Analysis

49The Tribunal accepts the opinion presented by both witnesses that the intent and purpose of the maximum lot coverage standard in the Zoning By-law is to regulate the balance between the built form and open space in a regularized neighbourhood pattern in keeping with the area character. Having considered the submissions presented, the Tribunal finds the requested variance to increase the maximum lot coverage does not diminish that objective or result in a built form mass that is out of character for the area compared to other new semi-detached dwellings. The Tribunal agrees with the evidence presented by Mr. Riley, echoed in the Staff Reports, that characterized the lot coverage variance as marginal and without negative impact. The Tribunal is persuaded that the development proposal meets the eclectic and evolving neighbourhood character demonstrated through the testimony of Mr. Riley and visual evidence of both witnesses.

50With respect to the variance to reduce the exterior side yard setback, the Tribunal is persuaded by Mr. Riley’s evidence and opinion that the adjacent City parking lot mitigates the impact of the reduced exterior side yard and the resulting increased massing of the building closer to Cayuga Avenue. The Tribunal agrees with Mr. Riley’s approach that the parking lot and Commercial zoning with its 0 m side yard setback zone standard means the proposed Severed Lot may function as an effective transition between the commercial use and the residential uses deeper in the neighbourhood. The Tribunal notes that the specific location of the Severed Lot between the parking lot and the residential uses is unique and provides a different context to mitigate the impact of the variances compared to a lot only surrounded by residential. The Tribunal also finds that the presence of a three-storey walk-up apartment building across Cayuga Avenue from the side yard of the Property contributes to a unique micro context that supports mitigation of massing closer to the street than if the development proposal had residential dwellings on all sides.

51The Tribunal finds the Severed Lot meets City OP policies that direct development to be sensitive to the existing and planned character of the area and mitigate impact on adjacent properties. The result of the building massing being closer to Cayuga Avenue and resulting in less side yard landscaping is mitigation by the transition across the exterior side yard from the Commercial zone parking lot to only residential uses across Tecumseth Avenue where the exterior side yard setbacks meet the 3.5 m zone standard. Tecumseth Avenue road width itself also mitigates the impact of the reduced landscape area because it forms an asphalt break before the larger exterior side yards commence. Additionally, the Tribunal finds residential dwellings across Cayuga Avenue will not be impacted by the dwelling massing closer to the street because of their distance across the road. The reduced exterior side yard setback also facilitates the symmetrical façade of the dwelling, and the increased lot coverage supports the delivery of the proposed ADUs.

52For the reasons set out above, the Tribunal finds that the variance to increase the maximum lot coverage and the variances to reduce the site yard set back meet the tests in s. 45(1) of the Act and are allowed.

Variance Related to Built Form (Eave Height for Both Lots)

53The requested variance to maximum height of eaves seeks to permit an increase from 6.4 m in the Zoning By-law to 8.45 m for both the Severed Lot and the Retained Lot. The proposed dwelling is designed with a mansard roof that includes windows on the side elevation and walk-out doors to balconies on the front and back elevation located within the roof line. The maximum height to the top of the building in the Zoning By-law is 9.5 m and is met by the development proposal. However, the windows and walk-out doors within the roofline have eaves above them at 8.45 m that result in the requested variance. The eave height of the mansard roof itself is lower at 5.57 m and meets the minimum standard in the Zoning By-law.

54Mr. Riley testified that the purpose of the maximum height to the underside of eaves zone standard is to work in conjunction with the maximum building height to regulate massing and mitigate impacts on neighbouring properties. Mr. Riley opined that the eave variance relates only to the windows and doors within the roof line and is not associated with the massing of the roof line, which is lower at 5.57 m due to the mansard roof. He testified that the proposed dwelling meets the standard for roof height and there are no policies limiting roof style or the location of windows and doors within the roof line. Mr. Riley testified that, if the windows and doors were removed from the roofline so that the variance was not required, the mansard roof style and the resulting massing of the building would be allowed without variance. Mr. Riley concluded that the windows and doors within the roof line are not a negative contribution to the building and that the requested variance meets the intent and purpose of the Zoning By-law, is minor, and is desirable for the appropriate development of the site and area.

55The Second Staff Report commented that since no variance was required for the overall dwelling height, the massing of the dwelling is kept within an appropriate scale, and the eave height variance was recommended for approval.

56On behalf of the City, Mr. Ramsey opined that the general intent and purpose of the maximum eave height in the Zoning By-law is to regulate building mass by lowering the edge of the roof and to preserve the existing and planned character of the area. Mr. Ramsey testified that the Port Credit Plan sets out that the neighbourhood is defined by “low rise building heights, the combination of small buildings masses on small lots and the well landscaped streetscapes” and opined that the eave height variance will result in a significantly larger building mass facilitated by allowing a full livable third storey.

57Mr. Ramsey testified that the maximum eave height restriction in the Zoning By-law is intended to lessen the visual massing of the dwelling by bringing the edge of the roof closer to the ground and lowering the roof pitch. Because of the increase in area for the third storey facilitated by the eave variance, Mr. Ramsey concluded that the impact in not minor and would result in an overdevelopment of the Property, where the resulting larger building mass would not be in keeping with the neighbourhood character and negatively impact the surrounding properties. For these reasons Mr. Ramsey opined that the eave variance did not meet the intent and purpose of the City OP and Zoning By-law, was not minor, and was undesirable for the development of the Property and neighbourhood.

Analysis

58Having considered the evidence of both Parties, the Tribunal is satisfied that the variance to permit the underside of eaves at 8.45 m to facilitate the windows and walkout doors within the mansard roof line meet the tests in s. 45(1) of the Act. The variance enables the architectural placement of the window and door, not the roof itself, which meets both the maximum overall roof height and the minimum height of roof eave. The Tribunal accepts the proposition the maximum eave height works with the maximum roof height to reduce the roof pitch; however, the zone standard does not actually limit roof pitch or style. As a result, the Tribunal finds there no evidence the mansard roof is not reasonable, even if it does result in a full usable third storey in comparison to other roof styles.

59The witnesses agreed that the intention of the eave height restriction in the Zoning By-law is to lessen the visual massing of the roof and mitigate impacts on the neighbouring homes and area. The visual evidence of other new construction semi-detached dwellings in the neighbourhood demonstrated a range of building heights of mostly two-storey dwellings with some three storey and a mix of architectural styles and roof lines. Although Mr. Ramsey, on behalf of the City, objected to the mansard roof facilitating the full third storey living space and resulting massing of the building compared to a peak roof, the Tribunal finds the architectural style is not prohibited and the windows and doors within it are incidental to the style itself.

60Since the mansard roof is permitted under the Zoning By-law and the eave height variance merely permits the windows within it, the Tribunal finds the impact of the eave height variance to be minor because it does not change the roof or massing of the building. The City’s position that the windows and doors facilitate the third floor being a full living space and thereby contributing to overdevelopment, is not persuasive. Again, the architecture of the roof fits within the zone standards and would be allowed regardless of the doors and windows. The eave height variance is desirable because it facilitates additional living space in the roof line assisting to deliver the ADUs and meeting higher order policy goals supporting missing middle housing intensification.

61For the reasons set out above, the Tribunal finds the variance maintains the intent and purpose of the Zoning By-law and City OP, is minor in nature, and is desirable for development of the Property and neighbourhood.

Variance Related to Parking for Both Lots

62To facilitate the development proposal, a reduction in the minimum number of parking spaces is required for both the Severed Lot and Retained Lot from two spaces to one space. The corner Severed Lot will access its parking space from the exterior lot frontage on Cayuga Avenue. Both witnesses agreed that that the intent of the City OP and Zoning By-law requirement regulating the minimum number of two parking spaces is to ensure adequate on-site parking for residential uses so as to not negatively impact the neighbourhood. Both witnesses also confirmed that additional parking is not required in the Zoning By-law for the proposed ADUs.

63The First Staff Report notes that Municipal Parking staff provided comments that the Appellant had not provided “satisfactory justification” for the proposed 50% parking reduction as per the “Parking Terms of Reference”. Parking staff recommended the Applications be deferred pending submission of the required justification or the accommodation of two parking spaces per lot. Despite the Parking staff comment, Planning staff recommended approval of the variance without explanation.

64The Second Staff Report did not comment on the parking variance again, provide further staff comments, or an update on the earlier parking justification comment. On cross examination while under subpoena, Ms. Chopra acknowledged that no parking justification had been provided by the Appellant and that the parking configuration for the development proposal did not change between the two reports.

65Mr. Riley provided evidence there is an opportunity for two cars to be parked because a second car can straddle the boundary between the Property and the boulevard for both proposed lots. Mr. Riley opined that the location of the Property within a 15-minute walk to the Port Credit GO Station, a shorter walk to existing bus transit, long term planned future cycling, and higher order transit along Lakeshore Road East is definitive. He opined that one parking space meets the general intent and purpose of the City OP and Zoning By-law since the impact on the neighbourhood is mitigated by the proximity to transit modes and minor in nature, and the reduction is desirable by supporting transit.

66In contrast, Mr. Ramsey testified for the City that the parking variance did not meet the intent of purpose of the City OP or Zoning By-law because sufficient parking justification and evaluation of the impact on the neighbourhood had not been provided, as noted in the First Staff Report. Further, he testified that that the variance is not minor because there is restricted street parking on Tecumseth Avenue and a short fall in parking supply will impact other neighbourhood residents.

67Mr. Ramsey testified that utilizing the “tandem parking” concept where a car straddles the boulevard requires the tandem spot to use part of the driveway length and, if in use, results in less than the minimum parking space of 5.2 m for the driveway space in the Zoning By-law. Mr. Ramsey provided a survey of typical vehicle lengths and testified that tandem parking cars other than “compact” cars would lead to vehicles overhanging the sidewalk. For these reasons, Mr. Ramsey opined that the decreased parking does not meet the intent and purpose of the City OP and Zoning By-law and is not minor or desirable for the neighbourhood or development of the Property.

68While both witnesses provided testimony regarding the parking variance, they also conceded that they were not qualified as transportation engineers. Counsel for the Appellant submitted that, because the location of the Property is close to existing and proposed transit, it is reasonable for a planning witness to make conclusions about the parking variance, and a parking engineer is not required to provide justification. Counsel for the Appellant also dispute that Mr. Ramsey’s survey of typical vehicle lengths should be given weight by the Tribunal.

69Both witnesses provided extensive visual evidence showing the built form of other new construction semi-detached dwellings in the Credit Grove neighbourhood. At the questioning of the Tribunal, they confirmed that an attached garage is considered a parking space under the Zoning By-law. Neither witness took the Tribunal to any similar new semi-detached dwelling in their visual evidence that provided only one parking space, and the majority shown in their visual evidence showed semi-detached houses with an attached garage and driveway space.

Analysis

70Having considered the evidence of the three witnesses, the Tribunal finds that the requested reduction in parking from two spaces to one space does not meet all four tests in s. 45(1) of the Act for a minor variance.

71The Tribunal finds the unanswered comment from Parking staff that additional justification is required according to the published “Parking Terms of Reference” to support the requested parking reduction is troubling. In her testimony, Ms. Chopra did not provide insight into why Planning staff overrode Parking staff comments that the reduction in parking was not justified or supported. Neither report authored by Ms. Chopra explained why Parking staff’s comments were not relevant or determinative for the parking variance, nor did they explain the policies supporting reduced parking.

72Despite Appellant Counsel’s submission that it is reasonable for a planner to opine on parking in this case, the Tribunal finds it does not agree given the outstanding comments from Parking staff and lack of policy justification. Similarly, no evidence was presented demonstrating that a reduction in parking spaces has been allowed in the Credit Grove neighbourhood in similar semi-detached lots that could support the conclusion that single parking spaces maintain the existing character of the neighbourhood and does not impact other residents. The Tribunal does not accept the blanket submission by the Appellant’s counsel that the location of the Property near an existing bus route and future long term higher order transit is sufficient alone to justify the reduction in parking given the Parking staff comments.

73The Tribunal further finds that, despite the ability to have parking of some nature straddling the boulevard that may functionally provide two-car parking depending on car length, this is not sufficient to satisfy the Tribunal that varying the parking requirement is appropriate. While the tandem parking may provide parking relief in some scenarios, it does not meet the criteria for two legal parking spaces, and the Tribunal does not consider it as justification to reduce the spaces.

74For the reasons set out above, the Tribunal finds that the requested variance to reduce the number of parking spaces provided for both lots does not meet the intent and purpose of the City OP, the Zoning By-law, and is not minor in nature or desirable for the development and area.

CONSENT AND ACOUSTICAL REPORT CONDITION

75Mr. Riley testified that the Consent should be granted because it has appropriate regard for those matters under s. 51(24) of the Act, specifically:

1. All matters of provincial interest in s. 2 of the Act are given regard as the proposal represents an appropriate location for growth and development, provides broader housing choices with the immediate neighbourhood and makes efficient use of existing infrastructure;
2. The proposal is an appropriate intensification in an organized an efficient manner consistent with prior development in the neighbourhood in a lotting pattern that conform to the Region OP and City OP;
3. The Property is suitable for the purpose of accommodating the proposed semi-detached dwelling with ADUs; and
4. The dimension and shape of the proposed lots are appropriate and can be accommodated without adverse impact and are the same or similar to other lots on the street and in the broader neighbourhood.

76Both Staff Reports recommend approval of the Consent, stating that it conforms to the City OP, is sympathetic to the surrounding area, is capable of reasonably accommodating the new dwelling, and that the proposed lot sizes are generally consistent with existing properties in the area.

77In contrast, Mr. Ramsey testified that the Consent meets the higher order consideration of provincial interest in s. 2 of the Act, but does not meet some of the applicable requirements in s. 51(24) of the Act, including:

1. The proposal is not in keeping with the surrounding area character of larger corner lots and the cumulative effect of the requested variances is an overdevelopment of the Property (s. 51(24)(b) and (c)); and
2. The dimensions and shapes of the proposed lots are undersized and out of character with the area, resulting in a building envelope that necessitates the requested variances to zoning regulations for exterior side yard setbacks and increases to building height to accommodate the proposed development (s. 51(24)(f));

78Mr. Ramsey opined that the proposed Consent does not conform with City OP policies that require infill development to preserve, enhance, and be sensitive to the existing and planned character of the area. He also opined that it does not meet City OP policies for land division that require evaluation of the Consent in the context of the existing lot pattern in the surrounding area (s. 16.1.2.1) and Port Credit Plan policies that require the character of the area be maintained and enhanced (s.10.3.4). He concluded that since the corner Severed Lot will be the smallest corner semi-detached lot in the Credit Grove neighbourhood, the proposed Consent should not be approved.

79As part of their submissions to the Tribunal, the Appellant disputes the reasonableness of a “Conditions of Provisional Consent” proposed by the Transportation and Works Department and asks that it not be enforced should the Consent be granted. The Second Staff Report includes a condition that requires an acoustical report be produced by the Appellant because of proximity to the CN/Metrolinx tracks to determine any noise attenuation to be incorporated into the dwelling to meet current noise level objectives and recommend minimum noise attenuation requirements for the control of outdoor and indoor sound levels (“Acoustic Condition”).

80Mr. Riley testified that the Acoustic Condition is not reasonable and should not be imposed because the Property is 285 m from the rail tracks, there are many intervening residential properties, and because the land use is not changing to a more sensitive use. Counsel for the Appellant submitted that the applicable jurisprudence about the reasonableness of conditions is found in Jock River Farm Ltd. v. Ottawa-Carleton (regional Municipality), [1999] O.M.B.D 864 and Bodnar v. Thunder Bay (City), [214] O.M.B.D. No. 746. Counsel submitted that these cases establish a condition of Consent approval must be “reasonable, relevant, necessary and equal”. From this principle, they submitted the Acoustic Condition does not meet this test because it should be limited to situations where a new sensitive use is being introduced and compatibility is an issue. Since the Property is already a residential use not being changed, they submit there is no reason to assume that an acoustical report would result in any mitigation measures. Counsel characterized the Acoustic Condition as costly and a disincentive to providing missing middle housing.

81Ms. Chopra testified that the Acoustic Condition is a standard condition imposed by the City on Consent applications within 300 m of the rail tracks.

82Mr. Ramsey testified that the Acoustic Condition was reasonable because the development proposal increases the number of residential units on the Property from one unit to six units. He further testified that, in the absence of site plan control, the condition is the way the City accommodates any requirements for noise mitigation in the dwelling construction. Counsel for the City highlighted that the Acoustic Condition is standard for Consents in the City and that Mr. Riley is not a qualified acoustical engineer to opine on its reasonableness. Counsel requested that, if the Consent is approved, the Tribunal include the Acoustic Condition along with the other conditions of provisional Consent.

Analysis

83As a preliminary matter, the Tribunal must determine whether the proposed lot creation requires approval by way of a plan of subdivision under s. 51 of the Act, or whether it may properly proceed by consent under s. 53 of the Act. The Tribunal finds that a plan of subdivision is not required in this case. The proposal involves the creation of a single additional lot from an existing, fully serviced corner parcel. No new public roads, shared facilities, or servicing extensions are required, and no evidence was presented indicating that the level of coordinated planning provided through a subdivision process is necessary.

84The development proposal is dependant on the linked applications for Minor Variances that facilitate the creation of the lots, and the Consent that severs the Property. The variances for the Severed Lot to reduce the lot frontage and the lot area are required to sever the Property and create the proposed Severed Lot and Retained Lot. Earlier in this Decision, the Tribunal found both lot creation variances met the tests in s. 45(1) of the Act and should be allowed. The other seven variances considered in this Decision do not impact the Consent since they relate to the building envelope or the built form of the development proposal and could be granted independent of the Consent.

85On review of the evidence and submissions of both Parties, the Tribunal finds that the proposed Consent satisfies the criteria in s. 51(24) of the Act. The evidence of lot sizes in both Mr. Ramsey and Mr. Riley’s testimony demonstrates that there is a pattern of severing lots into semi-detached lots in the Credit Grove neighbourhood. The visual evidence of both witnesses showed photos of existing and new development in the area that demonstrates an eclectic mix of architectural styles across two-storey and three-storey infill housing. The Tribunal finds City OP policies, that require a Consent to be evaluated in the context of the existing character of the area and take into consideration the lot pattern, are satisfied.

86The evidence presented by both witnesses demonstrate that the development proposal is within the scope of the established lot size pattern for corner semi-detached in the Credit Grove neighbourhood. The proposal is an intensification of the Property that is consistent with development seen in the neighbourhood and makes efficient use of existing infrastructure. The Tribunal finds that the severance of the Property into the corner Severed Lot and the Retained Lot, facilitated by the two lot creation variances discussed earlier in this Decision, is not premature and conforms to the relevant City OP and Region OP policies.

87In consideration of the reasonableness of the Acoustic Condition, the Tribunal is not persuaded by the Appellant’s position. Ms. Chopra confirmed that it is a standard condition of severance applied within 300 m of the rail tracks regardless of a land use change. The Tribunal was not provided with any evidence beyond Mr. Riley’s assertion that the Acoustic Condition was unreasonable or Counsel’s assertion that it was prohibitive and costly. Mr. Riley opinion that the location of the Property is too far from the rail tracks along with the continued residential use is supposition that a report will have no impactful findings. While that may be the ultimate result, the Tribunal favours the City’s discretion to apply standard conditions that address common matters and concerns within its boundaries. It is possible that there are noise attenuation measures that may be required for new construction that are not present in the existing original home on the Property.

88The Tribunal finds Counsel’s assertion that the Acoustic Condition does not meet the standard of “reasonable, relevant, necessary and equal” is the caselaw they presented, is not proven. The proposition that a municipality may only impose conditions that are reasonably necessary to address planning issues before it is not breached by the Acoustic Condition. The Property is within a recognized sphere of influence of rail tracks, and the City imposes a condition on all Consents to address the impact. The Tribunal does not find this unreasonable, irrelevant, or outside the scope of the Consent application before it. As such, the Tribunal finds the Acoustic Condition is reasonable and is to be included in the Conditions of Provisional Consent.

89In conclusion, the Tribunal finds the appeal of the proposed Consent is allowed and provisional consent to be granted subject to the Condition of Provisional Consent, proposed by the City in the Second Staff Report.

ORDER

90THE TRIBUNAL ORDERS THAT:

1. The appeal of the Minor Variance Application is allowed, in part.
2. The following variances to the City of Mississauga Zoning By-law No. 0225-2007 are authorized: i. Variance for lot area from required 280 sq m to 266.38 sq m for the Severed Lot; ii. Variance for lot frontage from 9.8 m to 7.62 m for the Severed Lot; iii. Variance for exterior side yard setback from 3.5 m to 1.2 m for the Severed Lot; iv. Variance for maximum lot coverage from 45% to 47.26% for the Severed Lot and 49.32% for the Retained Lot; and v. Variance to permit a height to the underside of eaves from 6.4 m to 8.45 m for the Severed Lot and the Retained Lot.
3. The following variance to the City of Mississauga Zoning By-law No. 0225-2007 are not authorized: i. Variance to reduce the number of parking spaces from two spaces to one space for the Severed Lot and the Retained Lot.
4. The appeal of the Consent Application is allowed, and the provisional Consent is to be given subject to the conditions set out in Attachment 1 to this Order.

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.

Attachment 1

Footnotes

1. 1Clergy Properties Ltd. v. City of Mississauga, 1996 CarswellOnt 5704, [1996] O.M.B.D No. 1840, 24 O.M.B.R.