Precedent Concerns: Major concern for minor variance

NRU
Aug. 27, 2014
By Edward LaRusic

A recent severance, approved at the Ontario Municipal Board, has the city of Mississauga asking for a review and the local councillor up in arms over the precedent it may set.

“[The board decision] is an abomination...it’s pitiful on every single level,” said councillor Nando Iannicca about a June 27 board decision. The OMB allow an appeal by Alexandra Mouzitchka, granting her consent and a variance to allow her 100-ft -wide property to be split in two so she may construct two new homes at 2532 Glengarry Road.

Iannicca said that the board member, Mary-Anne Sills, “tore up the official plan of the City of Mississauga” by allowing the variance.

“On what planet is allowing a 50-ft. lot in a community of 100-[ft. lots] a minor variance? That’s a rezoning.”

Worse, said Iannicca, the decision flies in the face of decisions made, not only by council, but by city staff and two separate committees of adjustment that had refused Mouzitchka the variances she had sought.

“Our whole system is based on checks and balances, not the avarice or stupidity of one person.”

Where one sits on this decision, may come down to which side of the road you stand on.

Ben Quan (QX4 Investments Ltd.), planner for Mouzitchka, told NRU that this variance meets provincial direction to intensify “wherever you can, provided [the development] still fits in the neighbourhood.” He added that 50-ft lots are both desirable and present in the neighbourhood in question. In fact, Quan said, “all of the lots across the street are 50-ft. lots.”

That 50-ft. lot existed across the street was a key part of the board’s decision to approve the variance and consent.

The board heard from city planner David Ferro, who said that the proposed severance and variance would be contrary to a policy in the Mississauga official plan. The policy states that proposed lots will generally represent the greater of the average lot frontage within 120 m. (393.7 ft.) or 22.5 m. (73.8ft.), which is the requirement in the zoning by-law. In this case, the average lot frontage was 66.8 ft . Ferro confirmed that he did not include the lots on the east side of the street, opposite of Mouzitchka’s lot, as he determined they had a different character.

In her decision, Sills wrote: “It is inconceivable that the opposite side of a residential street can be excluded or completely ignored when determining the physical character and/or the planning context of a neighbourhood.”

Quan said he doesn’t think this decision “tears up the official plan.” The problem, he said, was that the city was leaning too heavily on one policy.

“You can’t just zero in on one policy in the official plan and say ‘this is it’. There are also official plan policies that encourage intensification and compatibility. That’s the test. You have to come up with the arguments, the planning reasons why this is compatible. Why it fits, especially in this day and age, in 2014. We’re not talking about the 1960s anymore.”

City development and design director Lesley Pavan said that the city was very careful to ensure conformity with the growth plan when it adopted its new official plan in 2012.

She said that concerns about lots being severed had led to a zoning by-law change back in the 1970s, which has remained in effect.

“When the committee of adjustment [application for a] variance came in, it was different than what the official plan and zoning had for that area. So we needed to uphold those policies.”

Pavan said that just because the lots on the other side of Glengarry Road are 50-ft. wide, doesn’t mean they are part of the character of the area. She noted that the 1970 zoning bylaw did not cover both sides of the road.

“Certainly, within this block, there’s a very unique distinct character. Sometimes the character straddles both sides of the road, sometimes it’s only on one side of the road. We did not pass a zoning by-law for the opposite side of the street when we did that community review.”

Solicitor for Mouzitchka Robert Jarvis (Robert E. Jarvis, Q.C.) said that the city is missing the provincial direction in documents such as the Provincial Policy Statement, which directs municipalities to utilize existing infrastructure.

He noted that Mouzitchka’s lot was zoned in a time when infrastructure - such as sewers and wells - wasn’t as plentiful.

“Basically, what [the province is] saying is that you’ve got to intensify. If it’s an old house that was built in the ‘40s [when 100-ft. lots were common] and it’s coming down, why wouldn’t you sever the lot and build two new houses? Now, you’re on sewers. Now you’ve got water, stormwater, roads. It’s just a different world.”

For Iannicca, the issue is bigger than one severance. He said that since the decision, he’s had a half-dozen inquiries from developers looking to sever other properties in the area, piggy-backing on this decision. He fears that developers will look to make a quick and easy buck going through the committee of adjustment, rather than proceeding with a more rigorous zoning by-law amendment.

“[These developers have] no planning argument, they’re just asking for what [the OMB] did over there. What do we say? This is just beyond the pale.”

Iannicca said that he’s not against the province’s goal to intensify cities and he does see a role for the OMB to adjudicate planning matters. But he feels that Mississauga has gone through the pain of figuring out where density should go and where it should not, and this community is one of the places it should not go.

“I have allowed more intensification than any councillor in Ontario. The downtown core of the City of Mississauga proves it, the intensification corridors along Highways 5 and 10 in Cooksville prove it. We are one of the few cities and regions that play ball with the Province of Ontario [in its intensification efforts].”

Iannicca said that if the requested section 43 review of the 2532 Glengarry Road decision fails he wants this matter brought to the divisional court. He has also sent letters to residents asking them to put pressure on local MPPs Harinder Takhar and Charles Sousa. Iannicca further added that he is prepared to take further action.

“I will be making a motion at the [council] meeting that if the decision is not overturned, we tear up our agreement [to intensify] with the province, because clearly we were lied to.”