Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 08, 2021
CASE NO(S).: PL200453
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Pat and Doris Melady
Subject: Minor Variance
Variance from By-law No.: 150-85
Property Address/Description: 8 Leslie Avenue
Municipality: City of Cambridge
Municipality File No.: A30/19
LPAT Case No.: PL200453
LPAT File No.: PL200453
LPAT Case Name: Melady v. Cambridge (City)
Heard: March 15, 2021 by video hearing
APPEARANCES:
Parties
Representative
Pat and Doris Melady
Gerald O’Rourke
City of Cambridge
No one appeared
DECISION DELIVERED BY M.A. SILLS AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal was an appeal by Pat and Doris Melady (“Applicants/Owners”) from the refusal of the Committee of Adjustment (“COA”) of the City of Cambridge (“City”) to approve an application for minor variances for their property located at 8 Leslie Avenue (the “Subject Property”).
2The Subject Property is designated Low/Medium Density Residential by the City’s Official Plan (“OP”) and zoned Residential 3 by Zoning By-law No. 150-85 (“ZBL”).
3The Applicants propose to construct a 104.03 square metre (“sq m”) single bay garage in the rear yard to be used for the storage of a motor home and additional overhead storage. Relief from the municipal zoning standards is sought as follows:
To permit an accessory building with a maximum height of 6.7 metres (“m”), whereas the maximum height permitted is 4.5 m;
To permit an accessory structure with a maximum lot coverage of approximately 11.4% of the lot area, whereas the maximum lot coverage permitted is 10% of the lot area.
4The Tribunal received a Participant Status Request Form from Valeria Cameron in advance of the hearing. Ms. Cameron indicated on the form that her request was on behalf of herself and other residents. However, the Tribunal cannot permit individuals to speak on behalf of other individuals unless they are members of an incorporated residents/neighbourhood association. Ms. Cameron was granted Participant status.
5By way of background, this application was before the COA on three separate occasions. At a meeting held on September 4, 2019, local residents (2) voiced concerns about, among other things, the size of the building. The COA deferred the application for three months to allow the Applicants to amend the height and size of the proposed structure.
6The Applicant reduced the height and lot area of the accessory building and moved it away from a hydro easement. At a meeting held on November 6, 2019, area residents (3) again spoke in opposition to the proposal and the COA again deferred the application.
7The revised application was next before the COA on March 11, 2020, and area residents (3) again expressed opposition to the variances being sought. The COA refused the variances and the Applicant subsequently appealed that decision to the Tribunal.
8The City staff planning reports have consistently favoured the application and each time staff recommended to the COA that the variances be approved.
Concerns of the Participant
9In her Participant Statement, Ms. Cameron claims that the Subject Property is bound by legal covenants and restrictions that were put in place at the time that this subdivision was established in 1958. These covenants and restrictions preserve the integrity and vision of the original owner of the subdivision lands by establishing a building scheme in the subdivision. Ms. Cameron questions how the Tribunal can legally approve the application when the terms of the covenants are not met.
10In her view, this type of “in fill” of a secondary structure where there is an existing one storey bungalow on a city sized lot is not only unwarranted, but it does not conform to existing by-laws for properties within the subdivision. In particular, the scale of the proposed two-storey accessory building is not subordinate to the existing one-storey bungalow. The proposed structure, with its massive side wall, will have a major impact on the abutting neighbour’s property. The Applicant has not conducted a shadow study or provided landscaping/screening options to alter the impact of this building on his neighbour’s property nor considered how it will impact the neighbour’s quality of life and depreciate the value of his property.
11There is also a concern about the intended use of the accessory building; the Applicant indicated in the application for minor variance that this structure would be used for the storage of a motor home. However, he told his neighbour that his son and his family are going to live in the building. According to Ms. Cameron, the Applicant does not possess a motor home, and she questions why the Applicant “is attempting to disguise the purpose for this accessory structure from officials”.
12Ms. Cameron further contends that approval of the application by the Tribunal will pose a significant threat to the integrity and atmosphere of the surrounding residential neighbourhood. The utilization of minor variances to approve this type of development, in her view, will open the door to unbridled development within existing neighbourhoods.
Planning Evidence
13In determining this application, the Tribunal had before it the planning report and staff recommendation from the City of Cambridge Development Planning Section.
14The report sets out that the intent of the ZBL with respect to the maximum height of an accessory building in a residential zone is to ensure that the accessory structure remains at a scale subordinate to the principle dwelling and minimizes impact to the adjacent properties. The garage height was reduced by 0.84 m from the original proposal and remains at a scale subordinate to the existing dwelling and is located within the rear yard. An existing attached garage has been demolished.
15The proposed building is to be utilized for storage as an accessory use to the principal dwelling. The Applicant has confirmed the loft will be utilized for storage and is only accessible by a ladder. Staff have recommended as condition of minor variance approval that the garage cannot be used for human habitation or a home occupation.
16The Applicant has provided an elevation diagram of the proposed garage which only shows one window and it faces internal to the Owner’s backyard. There are no windows proposed that would directly face the adjacent properties. The proposal provides for a 1.67 m setback from the adjacent properties, which exceeds the minimum 0.6 m setback required by the ZBL. Planning staff have indicated that significant impacts from overlook into adjacent properties is not anticipated.
17The intent of the ZBL with respect to maximum lot coverage is to ensure there is adequate open space for drainage. The minimum open landscape requirements are being maintained and the Applicant will be required to submit a grading plan to ensure there are no impacts to the adjacent properties.
18In was the opinion of planning staff that subject to a condition that the accessory building cannot be used for human habitation or a home occupation, the general intent and purpose of the OP and ZBL are met; the accessory building is appropriate for the desirable development of the property; and the variances are minor in nature. Staff recommended to the COA that the variance application be approved.
19The Regional Municipality of Waterloo did not comment on the application.
Submissions by the Applicant
20The Applicant was represented at the hearing by his building designer, Gerald O’Rourke, who provided additional contextual and architectural design detail about the proposed accessory building.
21Mr. O’Rourke confirmed that the proposed accessory structure is not intended for human habitation and is strictly for the use by the Owners of this private property. The restrictions for the use of the proposed structure have been clearly defined by the City and the Owners agree to those restrictions.
22Mr. O’Rourke said the Owners have acted in good faith and complied with each recommendation of City planning staff, while maintaining the functional intended use and purpose of the structure by the Owners. The exterior elements of the accessory building are to mirror some of the material features of the recently renovated house so that it blends seamlessly with the dwelling.
23Mr. O’Rourke noted that at the November 6, 2019 meeting, the COA arbitrarily suggested that the building height increase be limited to 15% (or 5.18 m) of the current zoning standard. He said this nominal increase would not allow the Owners proper space for parking a taller vehicle and would seriously impact the architectural appearance of the new structure.
24Regarding lot coverage, he said the physical enclosed accessory structure footprint is 78 sq m or 8.53% of the lot area. The additional open sided portion of the accessory building represents and additional 26.3 sq m or 2.88% lot coverage for a combined total lot coverage of 11.4%, which exceeds the zoning standard.
25To soften the impact of the increased lot coverage, the Owners will be leaving the existing 2.44 m high cedar hedge in place and are proposing to install a new 1.83 sq m high wooden fence and a new cedar hedge. As well, the accessory structure will have increased side and rear yard setbacks that are intended to further separate the building from neighbouring properties. The increased setbacks exceed the zoning standards.
Disposition
26The Tribunal having reviewed the materials contained in the Tribunal’s file, in particular, the City staff planning reports, and having taken into account the evidence of Mr. O’Rourke and considered the concerns of the Participant, is satisfied that the established criteria set out in s. 45 (1) of the Planning Act is met.
27The Tribunal finds that the general intent and purpose of the OP and the ZBL is being maintained. The proposed accessory structure is an appropriate and desirable use of this residential property, and the variances are minor in nature and do not result in the creation of unacceptable adverse impact for abutting property owners or diminish the character of the greater neighbourhood. The Tribunal is satisfied that the principles of good land use planning are being appropriately maintained.
28On the issue of the covenants, as the Tribunal explained at the hearing, this is a legal matter that is not within the jurisdiction of the Tribunal.
29In regard to the concern about the proposed accessory structure being used for human habitation, it has been confirmed that the Applicants intend to only use the structure for vehicle and storage purpose, and City staff have recommended that as condition of approval it be stipulated that the garage cannot be used for human habitation or a home occupation. At the request of City planning staff, this restriction will be included in the Tribunal’s Order.
30Overall, the Tribunal is satisfied that every effort has been made to address the concerns of neighbourhood residents. In review of the photographs and drawings provided, the Tribunal finds no cause for concern that the residential character of the neighbourhood will in any way be compromised or adversely impacted.
ORDER
31The Tribunal Orders that the appeal is allowed, and the minor variances are authorized subject to the stipulation that the accessory structure cannot be used for human habitation or a home occupation.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
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.