Holmes v. Cambridge (City), 2021 CanLII 109374

ISSUE DATE: October 25, 2021

CASE NO(S).: PL210270

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

Appellant: Catherine Holmes

Applicant: Gateway Village Homes

Subject: Minor Variance

Variance from By-law No.: 150-85

Property Address/Description: 16 Edward St

Municipality: City of Cambridge

Municipal File No.: A79/20

OLT Case No.: PL210270

OLT File No.: PL210270

OLT Case Name: Holmes v. Cambridge (City)

Heard: October 18, 2021 by video hearing

APPEARANCES:

Parties

Representative

Catherine Holmes

Self-represented

Gateway Village Homes

Jamie Alli

DECISION DELIVERED BY BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

1Catherine Holmes (“Appellant”) appealed the March 10, 2021 decision of the Committee of Adjustment (“CofA”) for the City of Cambridge (“City”) with respect to the approval of a minor variance from By-law No. 150-85 for a property known municipally as 16 Edward Street (“subject property”). The appeal is pursuant to s. 45 (12) of the Planning Act.

2Previous minor variance and consent applications were submitted to the City in 2016 and both were subsequently approved with conditions by the Ontario Municipal Board (“OMB”). This decision approved the Minor Variances and gave provisional consent that authorized the creation of a new lot with a frontage of 13.29 metres (“m”). The reference plan deposited after this approval is in error as it illustrated a frontage for the property as 12.97 m. Hence, the need for a new minor variance to recognize the deficiency in lot frontage.

3The Tribunal in this matter has before it the following:

a minor variance from Zoning By-law No. 150-85 to permit a frontage of 12.97 m (42.5 feet) whereas the by-law requires a minimum of 15 m (49.2 feet).

4The Appellant was self represented at the hearing and Gateway Village Homes (“Applicant”) was represented by Jamie Alli. No expert witnesses were called. To assist the Tribunal, both parties provided testimony with respect to background and the issues regarding this matter.

5The City of Cambridge was not represented at the Hearing, neither by counsel nor planning staff.

6There were no additional requests for Party or Participant status at the Hearing.

7In the City’s Planning Report, which was provided to the CofA at the March 10, 2021 meeting, staff came to the conclusion that the proposal met the four (4) tests of a Minor Variance and recommended approval subject to the following condition:

That the proposed dwelling be substantially in keeping with the plans submitted with the minor variance application to the satisfaction of the Planning Services Division.

The CofA approved the minor variance accepting and included the recommended condition. The Notice of Decision was issued on March 19, 2021.

THE PREVIOUS OMB DECISION

8The previous OMB decision by Ms. Milchberg (File No. PL160687) was issued on May 11, 2017 with respect to an appeal from the Appellant for both proposed consent and minor variance. The decision is comprehensive in its review of a variety of issues including the loss of mature trees on the property; an existing retaining wall; overlook and shadow impacts and compatibility.

9The Member dismissed the appeal and granted a provisional consent subject to a series of conditions. The three conditions that are identified as outstanding issues in this proceeding are paraphrased as follows: a Tree Management Plan to the satisfaction of the City’s Community Services Department; a spatial separation report to the satisfaction of the City’s Building Division; and “a proposed grading plan for the severed lands, and that it addresses to the satisfaction of the City, the role, if any of the retaining wall between the subject property and No. 18 Edward Street. Any responsibilities, including maintenance, that may arise are to be resolved by the Parties”.

10In the March 10, 2021 staff report, it was noted that “the previous Applicants fulfilling all the conditions for the severance applications, 16 Edward Street is considered a legal lot”. The Tribunal is also advised by email that: “A consent certificate was issued for B07/16 on February 28, 2018. The certificate’s are only issued when all conditions are satisfied”. Parties are aware of the severance certificate being issued and that the subject property is considered a legal lot.

THE HEARING

11The City did not make representation at the Hearing but as part of the Municipal Record is a planning staff report dated March 10, 2021 which contained a thorough review of the proposal and the application of the four (4) Minor Variance tests. The Tribunal relied on the March 10, 2021 staff report and oral submissions of both the Applicant and the Appellant in adjudicating this matter.

12Parties are aware that the Tribunal has before it a Minor Variance application which may be considered technical in nature and the four (4) tests found in the Planning Act were previously adjudicated and found to be met in the 2016 decision. A consent was granted (save and except for the lot frontage error) in keeping with that decision.

13The Appellant continues to have issues with respect to the potential removal of existing trees along the property line; possible impact on the existing retaining wall and the fact the new home to be built is not in keeping with the existing character of the homes in the area. Clearly, the Appellant has lost confidence in the City’s ability to properly manage this file and ensure her issues are understood, recognized, and appropriately monitored during (and after) the construction of a new home on the subject lands.

14The Applicant has a building permit application with the City and is planning to build a custom home for clients on the subject property and fully expected there would be no issues as the house was designed to conform to all zone provisions. He explained that as part of the submitted plans, the following have been completed in an effort to take into account the Appellant’s issues: increasing the side yard adjacent to the Appellant’s property to 1.8 m (6 ft); a supplementary grading plan has been completed; plans to make best efforts to maintain in a healthy manner as many trees as possible on the property line adjacent to the Appellant’s property and as part of the project plan there is a recognition of the existing retaining wall and a possible requirement of structural and cosmetic improvements that may result from the construction of the new home. As a custom builder, the Applicant relies entirely on his reputation on delivering a quality home in a sensitive manner.

MINOR VARIANCE TESTS

Maintain the General Intent and Purpose of the Official Plan

15The Subject property is designated as Low/Medium Residential Density in the City’s Official Plan. The staff report confirmed that this designation permits single detached dwellings. Staff evaluated the proposal against the compatibility policies of the Official Plan and took into consideration the existing neighbourhood character.

16It was staff’s opinion that the variance meets the general intent and purpose of the Official Plan.

Maintain the General Intent and Purpose of the Zoning By-law

17The staff report states that the subject property is zoned as Residential – R4 which permits the proposed single detached dwelling. The intent of the minimum frontage requirement is to ensure that the property has sufficient amenity space, open space landscaping and parking. The subject property meets the minimum landscaped open space for the whole lot as well as the front yard and the parking requirements can be met. There are no other variances requested.

18The Applicant confirmed that the proposed new home has been reviewed by the City and meets all other zone provisions the R4 zone. He also made note of the increased side yard adjacent to the Appellant’s existing home.

19It was staff’s opinion that the variance meets the general intent and purpose of the Zoning By-law.

Be Desirable for the Appropriate Development or Use of the Land, Building or Structure

20The staff report noted that the subject property is located on portion of Edward Street consisting of primarily one and two storey single detached dwellings. A particular comment was made by staff that compatibility “is defined as development that, although it is not necessarily the same as or similar to the existing buildings in the vicinity, nonetheless exists in harmony or enhances the established community”.

21A review of lot frontages along Edward Street illustrated a variation in existing lot frontages from 9 m (29.5 feet) to 25 m (82 feet). Some of the smaller lot frontages do contain semi-detached dwellings but there are existing single detached dwellings on properties in the general area that have lot frontages of approximately 8 m (26.2 feet) – 13 m (42.6 feet). The proposal is within the existing lot frontage range and staff see no physical or functional adverse impact on the street or the neighbourhood.

22Staff are of the opinion that the proposal is desirable for the appropriate development of the subject property as a single detached dwelling.

Be Minor in Nature

23The staff report stated that the previous OMB approval was for a lot frontage of 13.2 m (43.3 feet) rather than the 12.97 m (42.5 feet) lot frontage in issue at this proceeding. The only reason the matter had to be heard again by the CofA was because of an error in the reference plan that was deposited resulting in the need for a new minor variance application.

24The staff are of the opinion that the proposed variance results no physical or functional adverse impact on the street or the neighbourhood and is in minor in nature.

TRIBUNAL ANALYSIS AND FINDINGS.

25The Tribunal finds based on the thorough review and evidence provided in the City’s planning staff report dated March 10, 2021 and the oral submissions of the Applicant that the proposed variance meets the general intent of the Official Plan, meets the general intent of the zoning by-law, is desirable for the appropriate development and use of the lands and is minor in nature.

26The Tribunal finds that the City has determined that all the conditions imposed by the previous OMB decision have been fulfilled to their satisfaction and a consent certificate was issued so it sees no reason place similar conditions in this matter. The Applicant has advised the Tribunal that the new single detached dwelling will have a greater side yard than required by the Zoning By-law, will maintain as many of the existing trees on the property line as possible and will monitor any impact construction of the new home will have on the retaining wall.

27The Tribunal heard the testimony the Appellant regarding her issues with respect to the location of the new single detached dwelling, existing trees along the property line and potential issues related to the integrity of the existing retaining wall. The Tribunal has considerable empathy for the Appellant especially for her legitimate issue related to the integrity of the retaining wall between the subject lands and her property. Through this process, she has lost confidence in the City to properly manage the development on the subject lands. Without the benefit of a City witness to provide assurance the Appellant’s issues are understood and the City will take appropriate steps to monitor the project, the Tribunal is compelled to make a comment with respect of the City’s responsibility in its findings in this matter.

ORDER

28Accordingly, the Tribunal Orders.

29THAT the appeal is dismissed and the variance to By-law No. 150-85 for the City of Cambridge is authorized subject to the following condition:

That the proposed dwelling be substantially in keeping with the plans submitted with the minor variance application City of Cambridge submission No. A79/20 to the satisfaction of the Planning Services Division.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

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.