Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 19, 2021
CASE NO(S).: PL210283
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Allan Armstrong
Applicant: John Kenthol
Subject: Minor Variance
Variance from By-law No.: 2005-133
Property Address/Description: 21 Propp Drive
Municipality: City of Kawartha Lakes
Municipal File No.: D20-2021-007
OLT Case No.: PL210283
OLT File No.: PL210283
OLT Case Name: Armstrong v. Kawartha Lakes (City)
Heard: November 15, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Allan Armstrong (“Appellant”)
Self-represented
Maurice and Beverley Gauthier
John Kenthol
(collectively the “Applicant”)
City of Kawartha Lakes (“City”)
Robyn Carlson
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
1The Appellant appeals the City’s Committee of Adjustment (“COA”) decision to authorize a minor variance application (the “Application”) for the property known municipally as 21 Propp Drive, Hamlet of Pontypool, Ontario (the “Subject Property”).
2The Applicant applied for a minor variance to City’s Zoning By-law No. 2005-133 (“ZBL”) to permit the construction of a 373.55 square metre (4,021 square feet) addition consisting of an expansion to the existing living space and an attached two-bay garage fronting onto Propp Drive with a storage loft (the “Proposed Addition”). The storage loft will not include habitable space.
3The Subject Property is a corner lot at the junction of Propp Drive and Corbett Drive. The dwelling on the Subject Property is a backsplit level home with an attached garage fronting onto Propp Drive. The garage is on the south side and the Proposed Addition will be added to the front of the north side where there is a significant side yard, or flankage yard adjacent to Corbett Drive. Nearly half of the northern lot line along Corbett Drive is delineated by older blue spruce trees that forms a privacy barrier when viewed along Corbett Drive (the “Spruce Privacy Barrier”).
4Section 13.2(e) of the ZBL only permits new structures to be erected in a Rural Residential Type One (RR1) Zone, if they have at least 15 metres of flankage yard from the lot line (the “Minimum Flankage Yard”).
5The Applicant requested relief from the Minimum Flankage Yard requirement of 15 metres to 3.35 metres in order to facilitate the construction of the Proposed Addition (the “Variance”).
6The City’s COA reviewed the Application for the Variance and the Planning Report (No. COA2021-014) prepared by Kent Stainton, Planner II, at the City (“City Planning Report”). The COA approved the Application, subject to the following conditions recommended in the City Planning Report:
that the building construction related to this approval shall proceed substantially in accordance with the sketches in Appendices C & D submitted as part of the City Planning Report (COA2021-014), which shall be attached to and form part of the Committee's Decision;
that within twenty-four (24) months after the date of the Notice of Decision, the owners shall submit to the Secretary-Treasurer photographic evidence confirming that the structure identified as 'Exist. Shed' on Appendix C has been removed; and
that the building construction related to the minor variances shall be completed within a period of twenty-four (24) months after the date of the Notice of Decision, failing which this application shall be deemed to be refused. This condition will be considered fulfilled upon completion of the first Building Inspection (collectively “Approved Conditions”).
7The Appellant, who resides at 255 Corbett Drive filed an appeal of the COA decision with the Tribunal on March 23, 2021.
8The City appeared as a friend of the Tribunal but did not participate in the hearing.
EVIDENCE
9The Appellant did not call any witnesses to present any oral evidence. Mr. Stainton, who prepared the City Planning Report, was summoned to the hearing by the Applicants and presented the only planning evidence at the hearing (the “Planning Evidence”). Mr. Stainton’s oral testimony was entirely consistent with the City Planning Report, undisputed by any other planning evidence and the cross-examination at the hearing did cause the Tribunal to question the validity of his evidence.
Committee of Adjustment Decision
10The appeal of the COA decision is a hearing de novo of the minor variance Application. At this appeal, considering the evidence presented and the submissions made by the parties, the Tribunal must decide whether the Application should be authorized under s. 45(1) of the Planning Act (“Act”) and whether any conditions should be imposed.
11As required by the Act, the Tribunal had regard to the COA decision and the City Planning Report.
Minor Variance Application
12Section 45(1) of the Act sets out the four tests that the Tribunal must follow for assessing the proposed Variance.
A. Is the variance minor?
13The Appellant’s primary concerns related to the size and height of the Proposed Addition and the fact that the sight lines may be blocked from an adjacent lot on Corbett Drive in the rear of the Subject Property. He did not have any planning evidence to support his concerns. The height and size of the structure are all permitted by the ZBL and the Appellant’s concerns are not supported by the Planning Evidence. There is ample space on the Subject Property which is one of the largest lots in the subdivision to accommodate the Proposed Addition in full compliance with the lot coverage provisions of the ZBL.
14Similarly, his concern regarding sight lines are not justified since the erection of a fence, trees or shrubs would block site lines as well. The Proposed Addition fully meets the height restrictions in the ZBL.
15Mr. Stainton’s evidence confirmed the views that he expressed in City Planning Report. The reduction in the Minimum Flankage Yard was not significant given the size of the lot, the Spruce Privacy Barrier and the diagonal nature of the flankage yard along Corbett Drive. This flankage yard diagonal measures 7.6 metres at the front of the Proposed Addition and at the end of the Proposed Addition, the flankage yard measures 3.35 metres and meets the Spruce Privacy Barrier on the perimeter of the Subject Property (“Flankage Yard Diagonal Area”).
16The Proposed Addition is to be attached to the front of the home on the northern lot side and the structure will follow the property line along Corbett Drive buffered by the Flankage Yard Diagonal Area. The Municipal right-of-way with no sidewalk bordering the Flankage Yard Diagonal Area further buffers Corbett Drive and will visually add to this flankage.
17The Planning Evidence was that the Proposed Addition will not present massing and shadow issues for the properties to the north on Corbett Drive and importantly will not represent a safety issue for traffic turning at the corner of Corbett Drive and Propp Drive. The Planning Evidence confirmed that in other City zoning by-laws, the Minimum Flankage Yard is set at 7.5 metres and the 15 metre Minimum Flankage Yard setback required by the ZBL is excessive. The reduction of the flankage yard to 7.6 metres at its longest point and 3.35 metres does not seem to be excessive based on this Planning Evidence.
18The Tribunal finds the Variance to be minor in nature as it did not hear any evidence of unacceptable adverse impacts to the neighbourhood resulting from the Proposed Addition.
B. Is the variance desirable for the appropriate development or use of the land, building or structure?
19The Planning Evidence confirmed that the Proposed Addition has been designed to fit in well with the Neighbourhood and is desirable for the development of the dwelling currently on the Subject Property. The Proposed Addition will be attached to the current house structure facing Propp Drive, will meld in well with the current structure, and will blend into the character of the Neighbourhood. Aside from the Variance, the Proposed Addition complies in all other respects with the ZBL requirements.
C. Does the variance maintain the general intent and purpose of the zoning by-law?
20The objectives of the flankage yard requirement are to maintain sight lines, preserve space for road widening, maintain land for the installation/expansion of services and shape the streetscape by regulating the placement of buildings to ensure buildings and uses do not dominate the streetscape. The northern limit of the Proposed Addition is equal to that of 256 Corbett Drive and thus will not dominate the streetscape. Importantly, the Proposed Addition and the Flankage Yard Diagonal Area will not reduce the sight lines of the intersection at Propp Drive and Corbett Drive and will not result in a traffic safety hazard. Finally, the reduction of the Flankage Yard Diagonal Area will not represent an issue for road widening or municipal services.
21The Planning Evidence confirmed that the Variance maintains the general intent and purpose of the ZBL.
D. Does the variance maintain the general intent and purpose of the official plan (“OP”)?
22The Subject Property is designated Rural Settlement within the OP. This designation permits residential uses and associated accessory structures and thus, the Variance maintains the general intent and purpose of the OP.
23The Tribunal finds that the appeal should be dismissed, and the minor variance is authorized subject to the conditions originally imposed by the COA decision, amended to address the time lost due to the appeal. The Application complies with s. 45(1) of the Act, constitutes good planning, and is consistent with the Provincial Policy Statement.
Order
24The Tribunal orders that the appeal is dismissed and the minor variance to Zoning By-law No. 2005-133 for the Subject Property is hereby authorized subject to the following conditions:
A. That the building construction related to this approval shall proceed substantially in accordance with the sketches in Appendices C & D of the City Planning Report.
B. That within 24 months after the date of the date of this Decision, the Applicants shall submit to the Secretary-Treasurer of the City photographic evidence confirming that the structure identified as 'Exist. Shed' on Appendix C of the City Planning Report has been removed.
C. That the building construction related to the minor variance shall be completed within a period of twenty-four (24) months after the date of this Decision, failing which this application shall be deemed to be refused. This condition will be considered fulfilled upon completion of the first Building Inspection.
“A. Cornacchia”
a. cornacchia
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.