Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 05, 2021
CASE NO(S).: PL200193
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Nancy Tausky
Applicant: Peter Dillon
Subject: Minor Variance
Variance from By-law No.: Z.-1
Property Address/Description: 845 Hellmuth Avenue
Municipality: City of London
Municipal File No.: A.011/20
LPAT Case No.: PL200193
LPAT File No.: PL200193
LPAT Case Name: Tausky v. London (City)
Heard: June 16 and 17, 2021 by video hearing
APPEARANCES:
Parties Nancy Tausky Counsel Analee Baroudi
Parties Peter and Jennifer Dillon Counsel Paula Lombardi
DECISION DELIVERED BY T. PREVEDEL AND ORDER OF THE TRIBUNAL
BACKGROUND AND PRELIMINARY MATTERS
1The subject property, municipally known as 845 Hellmuth Avenue in the City of London (“City”), presently contains a two-storey dwelling which was previously in use as a duplex. An existing parking area is located at the rear of the property, with access from an assumed municipal laneway.
2Peter and Jennifer Dillon (“the Applicant”) intend to use the dwelling as a single detached family home and wish to add a rear addition to the existing building which includes a proposed two-car garage with bedrooms on the second storey.
3In support of this intention, the Applicants applied for six minor variances from the City’s Comprehensive Zoning By-Law No. Z-1 as follows:
(1) To permit a rear yard setback of 3 metres, whereas a minimum setback of 7 metres is required,
(2) To permit a north interior side yard setback of 0.7 metres, whereas a minimum setback of 3.0 metres is required,
(3) To permit a lot coverage of 49.8%, whereas a maximum lot coverage of 45% is permitted,
(4) To permit a building depth of 70%, whereas a maximum building depth of 60% is permitted,
(5) To permit a garage width of 8.3 metres, whereas a maximum garage width of 3.3 metres is permitted, and
(6) To permit an encroachment for an air conditioning unit 1.7 metres into the required yard with a minimum setback of 0.7 metres, whereas the minimum encroachment permitted is 1.5 metres with a minimum setback of 0.9 metres.
The City’s Planning Report, dated March 2, 2020, recommended against variances 1, 3 and 4 as noted above and accepted variances 2, 5 and 6.
4However, the City’s Committee of Adjustment (“COA”) authorized the requested variances subject to conditions. The three conditions imposed by the COA are that the Applicant obtain a building permit, a heritage alteration permit and conduct an archaeological assessment.
5Nancy Tausky (the “Appellant”) is an adjacent side yard neighbour at 288 St. James Street. Ms. Tausky has appealed against the decision of the COA and brought the matter before this Tribunal.
AREA CONTEXT
6The Subject Lands are located on the west side of Hellmuth Avenue, north of St. James Street. A public lane of 3.658 metre in width abuts the north boundary of the subject property. Two St. James Street fronting properties “back onto” the southern boundary of the subject property. The two St. James Street residential properties are 288 and 290 (corner property). The Subject Lands presently contain a two-storey dwelling in use as a duplex. The Applicant intends to use the dwelling as a single detached dwelling and construct a rear addition including a garage.
7The subject site has a 3.048 metre easement along the rear lot line providing access to the Appellant’s property. The Tribunal notes that the Appellant has an existing driveway on St. James Street and does not appear to use her back yard for the purposes of parking her vehicle.
THE HEARING
8The Appellant summoned Daniel Hahn as a witness. Mr. Hahn works for the City of London almost exclusively dealing with minor variances and consents. He is the author of the report on this matter which went to the COA. He is currently not a registered professional planner, but the Tribunal accepted his qualifications as the author of the Planning Report, noting that he is not formally representing the City at this Hearing.
9The Appellant also called Laverne Kirkness as an expert witness on land use planning matters. Mr. Kirkness is a full Member of the Canadian Institute of Planners and a Registered Professional Planner in Ontario, whom the Tribunal qualified to provide independent expert opinion evidence in land use planning matters.
10The Applicant called two expert witnesses; Meaghan Rivard was qualified as an expert in heritage planning matters and William Pol was qualified as an expert witness in land use planning matters. On consent, the Tribunal afforded the Applicant, Mr. Dillon, the opportunity to give evidence as well as make submissions.
PARTICIPANTS
11The Tribunal received 13 requests for Participant status from neighbouring residents in advance of the Hearing, and Participant Statements were submitted to the Case Co-Ordinator. Eight of the individuals were supportive of the proposal and five were against. Upon a review of the contents of these statements, the Tribunal granted Participant Status to Minette Gaudet, Roderick Leishman, Neville Thompson, Mary Parks, Sally Vernon, Curtis Cleaver, Richard Cole, Dana Harder, Maciek Piekosz, Hans Schreff, Scott MacDougall-Shackleton, Mitch Steinberg and Joann Gram. The Tribunal also received a letter of support from Robert Stainton with no Participant status request.
ISSUES AND ANALYSIS ON THE VARIANCE APPLICATIONS
12At the outset of the Hearing, Ms. Baroudi, counsel for the Appellant, clarified that two modifications to the minor variances should be noted:
For variance no. 3, the actual lot coverage is calculated at 57.5 %, not the 49.8 % as noted in the COA decision, as the existing covered front verandah was not previously considered.
For variance no. 4, the actual building depth is 73%, not the 70% as noted in the COA decision for the same reason noted above.
13The modifications were agreed to by Ms. Lombardi, counsel for the applicant. The Tribunal finds these proposed amendments to be minor and no further notice is required. There is no change in the proposed addition to the existing dwelling but technical errors in the calculations of the two variances based on the exclusion of the front porch in the calculation has caused the discrepancies.
14Ms. Baroudi also stated to the Tribunal that her client is appealing all of the first five variances, not just variances 1, 3 and 4 as per the March 2, 2020 Planning Report.
15The City was not represented by counsel at the Hearing nor did they call witnesses.
16The Tribunal distills the “Appellant’s concerns as follows:
The variances are not minor in nature and will result in significant loss of privacy in her backyard, due to overviewing from occupants in the proposed addition.
The two-storey addition with a garage will have the effect of closing in her backyard area.
There could be potential adverse impacts should the Applicant choose to use the access easement as amenity space.
THE TESTS
17The subject site is within the R2-2 regulations of the City’s Comprehensive Zoning By-Law No. Z-1.
18The generally accepted criteria for evaluating and determining whether a Minor Variance constitutes sound land use planning is as follows:
Is the general intent and purpose of the Official Plan maintained?
Is the general intent and purpose of the Zoning By-Law maintained?
Is the variance minor in nature?
Is the variance desirable for the appropriate development or use of the land, building or structure?
Variance No. 1: To permit a rear yard setback of 3.0 metres, whereas a minimum setback of 7.0 metres is required.
Variance No. 3: To permit a lot coverage of 57.5%, whereas a maximum lot coverage of 45% is permitted.
Variance No. 4: To permit a building depth of 73% whereas a maximum building depth of 60% is permitted.
19The above three variances allow for an increased building area. These variances are necessary in order to permit the two-car garage and rear entrance addition. The COA approved all of the variances; however, these three variances were not supported by City planning staff.
20Mr. Kirkness, on behalf the Appellant opined that the subject property would be adversely affected if these minor variances were permitted as it would leave only the area of the access easement for rear yard amenity space. The Appellant’s witnesses also opined that the access rights of the property owner of 288 St. James Street would impede the 3-metre rear yard from its normal uses of recreation and aesthetics, thus leaving no meaningful or functional backyard.
21Messrs. Hahn and Kirkness, in their oral testimony, also advised the Tribunal that cumulatively, variances 1, 3 and 4 would result in the proposed addition overlooking 288 St. James Street where presently no overlook exists, which will result in a loss of privacy for the rear yard amenity space of the Appellant. As a result of the increased building depth, “Bed 4” would be able to look into 847 Hellmuth Avenue’s rear yard, and “Bed 3” would be able to look into the Appellant’s rear yard.
22Mr. Pol was qualified as an expert in planning matters and gave evidence on behalf of the Applicants, pointed out that the subject lot has the second smallest lot area of all lots bounded by Hellmuth Avenue, St. James Street, Wellington Street and Grosvenor Street It has a depth of 28.8 metres and width of 10.058 metres for a total area of 289.67 square metres. The standard lot on Hellmuth Avenue has a depth of 44.27 metres and width of 12.19 metres for an area of approximately 540 square metres. He opined that the subject lot is unique in that the lot area represents only 53% of a typical lot area and it is therefore appropriate to consider variances to permit a greater lot coverage on smaller lots to allow a dwelling that is similar in size to that permitted in the neighbouring lots in the area.
23The Tribunal was provided with visual evidence from Mr. Pol that the Appellant’s rear yard is currently overlooked to some extent from both the Applicants’ existing dwelling and those of her two neighbours at 286 and 290 St. James Street respectively. Mr. Pol also opined that this type of overlook is quite common in the surrounding neighbourhood.
24Mr. Pol stated that the property immediately south of 845 Hellmuth Avenue, at 290 St. James Street, has also exceeded the minimum setback and coverage requirements of the R2-2 Regulations.
25With respect to the currently allowed setbacks and coverage, Mr. Pol explained to the Tribunal that the subject property has “as of right” permission for a rear yard addition of 6.28 metres or, alternatively, for an accessory building, such as a two car garage, in the backyard with a setback of 3 metres from the property line, without the requirement of a variance from the Zoning By-Law.
26Mr. Pol further stated that the Applicant, Mr. Dillon, is proposing to integrate the two-car garage with the building addition as a more efficient use of the existing space. This would result in the actual net variance being only 1.95 metres.
27Mr. Pol provided evidence that the Subject Site is in the Low Density Residential (LDR) designation of the Official Plan. Policy 3.2.1 (Permitted Uses) allows single detached dwellings. Scale of Development Policy 3.2.2 requires a low-rise coverage form that minimize problems of shadowing, view obstruction and loss of privacy. Integration of an accessory building into the main building does not create any further shadowing because of the location being to the north of abutting single detached dwellings. The integrated structure does not obstruct the view because of existing mature trees to the south already limiting the existing view. Loss of privacy is minimal because the existing zone regulations permit a two-storey addition allowing windows facing onto rear yards to the south. The addition is in keeping with the intent of the LDR policies.
28Policy 3.5.19 Near Campus Neighbourhood, applies to the Subject Site. Specifically, Policy 3.5.19.4 (vi) allows for Residential Intensification which is appropriate in form, size, scale, mass, density, and intensity. The intensity of the Subject Site is being reduced from the existing duplex (providing two dwelling units) to one dwelling unit. The building coverage, building lot depth and proposed two-car garage with laneway access is characteristic of existing building mass, height and two-car garages in the area.
29With respect to the loss of usable amenity area in the backyard, Mr. Pol provided evidence to the Tribunal that the dwelling has two front porches and a proposed landscaped side yard which would provide more than the minimum required amenity space.
30Mr. Pol advised the Tribunal that the combined effect of minor variances 1, 3 and 4 allow a form and massing that limits the impact of vehicular parking and provides indoor storage space for the property. There is limited overlook into the abutting yard which is screened in part by mature trees. There is no loss of sunlight to the south because of the movement of the sun from east to west across the southern orientation. Shadows in the rear yard of the Appellant’s property are created by the existing dwelling. There is sufficient amenity space to meet the requirements of the R2-2 zone considering the existing first-floor veranda and second floor balcony, as well as the southern side yard and limited use of the access easement.
31Based on the evidence presented to the Tribunal both in Witness Statements and oral testimony, the Tribunal prefers the evidence presented by Mr. Pol and finds that the above 3 minor variances are in keeping with the 1989 Official Plan and the London Official Plan, meet the general intent and purpose of the Zoning By-Law, are minor in nature and are desirable for the appropriate development of the subject site.
Variance No. 2: To permit a north interior side yard setback of 0.7 metres, whereas a minimum setback of 3.0 metres is required.
32The second variance requests relief to permit a reduced north interior side yard setback of 0.7 metres. Section 6.3(2)(a) in Zoning By-Law No. Z.-1 requires a two-storey single detached dwelling within the R2-2 Zone to have a minimum interior side yard setback of 3.0 metres. The intent of the interior side yard setback regulation is to locate dwellings at a distance from one another to ensure that there are no adverse impacts on adjacent properties including adequate space for a landscaped buffer. Additional considerations include adequate space for driveways or parking areas where required, and adequate space for the repair and maintenance of dwellings.
33In his oral testimony, Mr. Hahn stated that in this instance, the requested variance maintains the interior side yard setback established by the existing dwelling. This is anticipated to result in a seamless and consistent transition between the old and new features, consistent with the guiding principles for new development in the Bishop Hellmuth Heritage Conservation District. The requested reduction in the north interior side yard setback is not anticipated to affect the streetscape or neighbourhood character. It is also important to note that the subject lands are separated from the adjacent property to the north by the assumed municipal lane, which would provide additional separation distance between dwellings despite the requested reduction in interior side yard depth.
34Mr. Kirkness, on behalf of the Appellant, opined that despite City staff’s acceptance of this variance, he felt that the northerly side yard was intended to provide separation space from other adjacent buildings for reasons of fire safety, access to sunlight and air, and in this case, access from a garage to a public lane of 3.658 metres in width. Drivers of vehicles exiting the proposed garage would be able to have more space and time to view oncoming vehicles if the setback was greater.
35Mr. Pol provided evidence that the municipal laneway, which is 3.658 metres wide, abutting the property to the north, has the effect of providing the required 3.0 metres north interior side yard setback and vehicular access to the rear. In this instance, the requested minor variance maintains the northerly interior side yard setback established by the existing dwelling. The requested reduction in the north interior side yard setback is not anticipated to affect the streetscape or neighbourhood character.
36In this case, the Tribunal relies on the evidence of both Mr. Hahn and Mr. Pol, and finds that this minor variance is in keeping with the 1989 Official Plan and the London Official Plan, meets the general intent and purpose of the Zoning By-Law, is minor in nature and is desirable for the appropriate development of the subject site.
Minor Variance No. 5: To permit a garage width of 8.3 metres, whereas a maximum garage width of 3.3 metres is permitted.
37In Mr. Hahn's oral testimony, he took the Tribunal to section 4.23.4 of Zoning By-Law No. Z-1 which regulates the width of residential garages in relation to the width of the building facade which is defined as the front elevation of a main building. Although the requested variance would permit an enlarged garage width relative to the building façade, the garage would be obscured from the street mitigating any impacts on the neighbourhood's character or streetscape. In addition, parking areas accessed from laneways are a consistent feature within the Bishop Hellmuth Heritage Conservation District Plan. As such, the requested variance, in Mr. Hahn's opinion, maintains the general intent and purpose of the Official Plan, the Zoning By-Law and is considered minor in nature and appropriate for the development and use of the subject site.
38Mr. Pol provided evidence to the Tribunal that the requested garage width is 8.3 metres, to be accessed from the abutting laneway. This variance will provide enough width to have two vehicles parked adjacent to each other in an enclosed structure and area for storage of personal equipment. The garage opening will not be visible from the Hellmuth Avenue streetscape because the garage is attached to the rear of the dwelling and access is from the lane. There are 32 residential lots on the block; 25 of those residential lots have a rear access garage. The requested size of garage and laneway access is a common feature in the Bishop Hellmuth Heritage Conservation District. This variance is consistent with character of the neighbourhood.
39Based on the evidence provided by both Mr. Hahn and Mr. Pol, the Tribunal finds that this minor variance respects the City’s Official Plan, is in keeping with the Zoning By-Law, is minor in nature and is desirable for the appropriate development of the subject site.
Minor Variance No. 6: To permit a yard encroachment for an air conditioning unit of 0.7 metres, whereas a maximum encroachment of 0.9 metres is permitted.
40This minor variance was not contested by City staff or the Appellant.
41The Tribunal finds that this minor variance is appropriate and is consistent with the four tests.
PARTICIPANT STATEMENTS
42Participant Statements were received from 13 individuals within the general neighbourhood. A few of the residents were in the immediate vicinity of the proposed addition.
43Of the participant statements received, 8 were in favour of the proposed renovations being contemplated by the Applicant, both with respect to his history of undertaking other appropriate heritage restorations in the neighbourhood and also with respect to the fact that a duplex dwelling formerly occupied by tenants was being modified to a single family residence. As well, a letter of support was submitted by Mr. Robert Stainton although he did not request Participant status.
44Five participant statements were opposed to the proposal, stating their concerns regarding adverse impacts on the Appellant’s property with respect to overbuilding and overlook, and stating a concern regarding precedence should these minor variances be approved.
45With respect to precedence, neighbourhoods are not static. They evolve over time as changes are introduced. There is no dispute that a change to a Zoning By-Law with a variance is a change on the ground that becomes part of the evolution of a neighborhood. Each variance sought must be considered on its individual merit and within its particular context as it is measured against the four tests. If the variance or variances meet the four tests they do so on their own and not because some other application on another property met or did not meet those same four tests on that other property.
46Authorizing a variance or variances does not establish a precedent in the sense that it binds the Tribunal when considering some other variances that may be similar but would apply to a different property and therefore be a different case. Precedence is not one of the tests and not a basis on which the Tribunal could authorize or refuse to authorize a variance.
OTHER MATTERS
47Ms. Rivard provided the Tribunal with her expert evidence, both in her Witness Statement and in oral testimony, regarding the heritage aspects of the proposed addition. In her professional opinion, the Appellant has not demonstrated that the proposed addition is not in keeping with the policies of the Heritage Conservation District (“HCD”) Plan. Ms. Rivard opined that the proposed development meets the policies of the HCD.
48This issue was not contested during the Hearing.
ORDER
49The Tribunal orders that the minor variances to the City of London’s Comprehensive Zoning By-Law No. Z-1 listed as follows:
To permit a rear yard setback of 3 metres, whereas a minimum setback of 7 metres is required,
To permit a north interior side yard setback of 0.7 metres, whereas a minimum setback of 3 metres is required,
To permit a lot coverage of 57.5%, whereas a maximum lot coverage of 45% is permitted,
To permit a building depth of 73%, whereas a maximum building depth of 60% is permitted,
To permit a garage width of 8.3 metres, whereas a maximum garage width of 3.3 metres is permitted, and
To permit an encroachment for an air conditioning unit 1.7 metres into the required yard with a minimum setback of 0.7 metres, whereas the minimum encroachment permitted is 1.5 metres with a minimum setback of 0.9 metres.
are authorized, subject to the following conditions:
A building permit is required for the addition,
The Applicant must apply for a heritage alteration permit, and
The Applicant must conduct an archaeological assessment by a registered professional.
“T. Prevedel”
T. PREVEDEL
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.