Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 22, 2021
CASE NO(S).: PL210141
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kathleen Barrett
Subject: Minor Variance
Variance from By-law No.: 14-45
Property Address/Description: 11 Lakeview Ave.
Municipality: Town of Grimsby
Municipal File No.: A-02-021
OLT Case No.: PL210141
OLT File No.: PL210141
OLT Case Name: Barrett v. Grimsby (Town)
Heard: June 30, 2021 by Video Hearing
APPEARANCES:
Parties
Representative
Kathleen Barrett
Self-represented
Town of Grimsby
No one appeared
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON JUNE 30, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was convened on June 30, 2021, to consider the appeal by Kathleen Barrett (“Appellant”), of 11 Lakeview Ave. of the decision of the Town of Grimsby (“Town”) Committee of Adjustment (“COA”) made on February 19, 2021 to refuse the minor variance to Zoning By-law No. 14-45 (“ZBL”) under s. 45 of the Planning Act, R.S.O. 1990 c. P. 13 (“Act”).
2Kathleen Barrett applied to the Town to reconstruct an existing legal non-conforming garage.
3The subject property is located at 11 Lakeview Avenue. The subject property is currently zoned Residential Detached 3 (RD3). A garage existed on the property and was demolished due to an unsafe roof. The garage would be rebuilt on the existing footprint and would be one-and-a-half-storeys in height.
4The variance sought would amend Zoning By-law No. 14-45 by reducing the required side yard setback from 1.8 metres (“m”) to 0.8 m.
5Town Planning Staff (“Planning Staff”) had no objections and recommended the application be approved.
6The COA refused the application on February 19, 2021, providing no reasons for the refusal.
EVIDENCE AND SUBMISSIONS
7The Tribunal heard that the Appellant would not be calling any witnesses and that they would be submitting their statement to the Tribunal.
8The Tribunal heard that the Town would not be calling any witnesses.
ANALYSIS
9The Tribunal was informed that an application had been received by the Town for a minor variance to facilitate the reconstruction of an existing legal non-conforming garage on the subject property at 11 Lakeview Avenue. The subject property is zoned Residential Detached 3 RD3. There is no site specific zoning on the subject property.
10The Tribunal heard that the Town Planning Staff had no objections to the minor variance proposed by the Applicant.
11The Tribunal must also consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, and whether they are consistent with the Provincial Policy Statement, 2020 (the “PPS”).
Provincial Policy Statement, 2020 (“PPS”)
12Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS.
13Policy 4.6 of the PPS states that the:
Official Plan is the most important vehicle for the implementation of this Provincial Policy Statement…Official plans shall identify provincial interests and set out appropriate land use designations and policies…
Growth Plan for the Greater Golden Horseshoe 2019 (“Growth Plan”)
14Section 3(5) of the Act directs that a decision of this Tribunal, with respect to any planning matter, shall conform and not conflict with the relevant policies of the Growth Plan. The Official Plans of municipalities and regions in the Greater Golden Horseshoe Growth Plan area must also conform to the Growth Plan.
LEGISLATIVE TESTS
15The Tribunal’s authority to grant variances is given under s. 45(1) of the Act , which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant notwithstanding that the COA authorized the variances. The tests require that that the variances:
a. Maintain the general intent and purpose of the OP;
b. Maintain the general intent and purpose of the Zoning By-law;
c. Be desirable for the appropriate development or use of the land, building or structure; and
d. Be minor in nature.
Do the Variances meet the Intent and Purpose of the Official Plan?
16The Tribunal heard the subject property and is designated as Low Density Residential in the Official Plan. The proposed plans maintain this designation, therefore meeting the intent and purpose of the Official Plan, in this regard.
17The current garage is in a legal non-conforming location on the subject property. The applicant has proposed to reconstruct the existing one-storey garage into a one-and-a-half-storey garage. Since the plans imply the garage is to be torn down and rebuilt, the new construction shall comply with current regulations under Zoning By-law No. 14-45, as amended, hence the need for a minor variance.
18The Tribunal heard that s. 3.4.2.6 of the Official Plan states:
All development with the Low Density Residential Area designation shall conform to the Urban Design Policies for Residential Neighbourhoods in Section 3.4.7.
19Policy 3.4.7.2 a) states:
General Built Form
New development shall be compatible with adjacent neighbouring built form by ensuring that the siting and massing of new buildings does not result in undue adverse impact on adjacent properties particularly in regard to adequate privacy concerns for residential buildings and their outdoor amenity areas.
20Policy 3.4.7.2 b) continues, and states:
To ensure the compatibility referenced in a) is achieved; the implementing Zoning By-law will establish appropriate setback and yard requirements which recognize existing built-form character.
21The subject property is also within a stable residential neighbourhood. Policy 3.4.7.4 b) iv) states: "Provide for similar side yard setbacks to preserve the spaciousness on the street."
22The Tribunal heard that the applicant intends to reconstruct the proposed garage on the same footprint as the currently existing garage. Due to the absence of complaints from adjoining property owners regarding the legal non-conforming garage, Planning Staff opined that they would not anticipate that the reconstruction in the same footprint will be of issue to the neighbours on the north side.
23The Tribunal further heard that the proposed garage is setback 13.4 m from the street, which will minimally impact the existing streetscape.
24Planning Staff opined that the proposed minor variance meets the intent and purpose of the Official Plan.
Do the Variances meet the Intent and Purpose of the Zoning By-Law?
25The Tribunal heard that the subject property is zoned Residential Detached 3 RD3.35 in Zoning By-law No. 14-45, as amended. The applicant proposes a minor variance to reduce the side yard setback from 1.8 m to 0.8 m.
26The intent and purpose of Zoning By-law No. 14-45, as amended, is to maintain the streetscape, and ensure there is sufficient space for maintenance and drainage. Since the minor variance is for a garage, parking requirements also need to be considered.
27As noted in the Official Plan section, since the reconstructed garage is proposed to have the same footprint as the currently existing garage, it is not expected that the neighbours on the north side of the subject property will experience any new negative impacts.
28The Tribunal was informed that the same footprint is proposed, and that the existing space for maintenance and drainage will be maintained. Since the footprint remains the same, Planning Staff opined that the 0.8 m setback has provided sufficient space for drainage and maintenance.
29The Tribunal heard that Planning Staff noted that 0.8 m is much narrower than most interior side yard setback requirements in the Town. A reconstruction project would give the applicant the opportunity to comply with Zoning By-law No. 14-45, as amended, which would result in a more suitable setback for drainage and maintenance.
30The Tribunal was informed that in the Zoning By-law No. 14-45, two spaces per dwelling unit are required. Since one dwelling unit exists on the subject property, two parking spaces are required, with dimensions of 2.75 m in width, and 5.75 m in length.
31The proposal demonstrates that a driveway that is 7.55 m in width, and 13.4 m in length would accommodate four parking spaces. Therefore, the available parking on the subject property meets the requirements of Zoning By-law No. 14-45, as amended.
32Planning Staff opined that the proposed minor variance meets the intent and purpose of the Zoning By-law No. 14-45, as amended.
Are the Variances Desirable for the Appropriate Development or Use of the Land, Building or Structure?
33The Tribunal learned that the reconstruction would allow for expanded living space for the residents of 11 Lakeside Avenue, based on the proposed plans. The intent and purpose of the Official Plan is to maintain the existing character of the Town, while also permitting appropriate new development to improve the lives of current and future residents of the Town.
34Planning Staff opined that the reconstruction of a garage is a desirable use of land.
Is the Variance considered Minor?
35The Tribunal was informed that the proposed variance to reduce the side yard setback from 1.8 m to 0.8 m is appropriate and is considered minor in the context of 11 Lakeside Avenue.
FINDINGS
36The Tribunal accepts the planning report from Town Planning Staff and finds that the Minor Variance has appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan 2019.
37The Tribunal finds that the requested variance meets the four test of s. 45(1) of the Act and:
a. the general intent and purpose of the Official Plan is maintained;
b. the general intent and purpose of the Zoning By-law is maintained;
c. the variance is considered desirable for the appropriate development of the land; and,
d. the variance is minor in nature.
ORDER
38THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 14-45 is authorized.
“Carmine Tucci”
CARMINE TUCCI
MEMBER
Ontario Land Tribunal
Website: 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.