Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 27, 2021
CASE NO(S).:
PL180891
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Surriya Chaudhry
Subject:
Minor Variance
Variance from By-law No.:
2010-050
Property Address/Description:
46 Weir Street
Municipality:
Town of Bradford West Gwillimbury
Municipal File No.:
D13-18-10
LPAT Case No.:
PL180891
LPAT File No.:
PL180891
LPAT Case Name:
Chaudhry v. Bradford West Gwillimbury (Town)
Heard:
June 25, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel*/Representative
Surriya Chaudhry (“Applicant”)
Self-Represented
Town of Bradford West Gwillimbury (“Town”)
Sarah Hahn*
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON JULY 25, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant made application to the Town for minor variances (“Application”) to validate exterior alterations (the “Work”) already made to the residence at 46 Weir Street (the “Site”) without the requisite planning permissions. The purpose of the Work had been to facilitate access to a rear entrance and accommodate a family member with mobility issues. The Work exceeded zoning performance standards. Planning Staff recommended that the Application be denied, and the Committee of Adjustment (“Committee”) refused the requested minor variances on October 24, 2018. The Applicant then appealed to the Local Planning Appeal Tribunal, which is now determined by the Ontario Land Tribunal as the successor Tribunal.
2Prior to the scheduled hearing of the Appeal on the merits, the Tribunal was advised that a settlement had been reached between the parties and the parties requested that the Tribunal convene a settlement hearing to consider the evidence and submissions.
3For the reasons indicated, and upon the findings which follow, the Tribunal will facilitate the proposed settlement by allowing the Appeal in part, and authorizing the requested variances, as amended.
THE HEARING
4The settlement, and the evidence in support of the approval of the proposed variances, with conditions, were presented with the concurrence of all Parties. The Tribunal received planning evidence from both Mr. Nick Pileggi, on behalf of the Applicant, and from Mr. Brandon Slopack, on behalf of the Town, both of whom provided a curriculum vitae and an executed Acknowledgement of Expert’s Duty. Both Planners were qualified by the Tribunal to provide expert evidence in the area of land use planning and the Tribunal received the benefit of both their Affidavits and their oral testimony at the hearing.
5No other person requested participant or party status for the purposes of the hearing.
6The following documents were marked as exhibits for the purposes of this Settlement Hearing:
Exhibit 1 – Executed Minutes of Settlement between all Parties dated June 14, 2021, with attached Schedule A;
Exhibit 2 – Affidavit of Brandon Slopack sworn June 18, 2021, with attached exhibits to the Affidavit, A to C;
Exhibit 3 – Affidavit of Nick Pileggi, sworn June 15, 2021
THE APPLICATION, THE AMENDED VARIANCES AND THE SETTLEMENT
7The Applicant’s original request to the Town, to properly validate the Work that had been done, was for the following variances:
A maximum driveway width of 6.40 metres (“m”), instead of the 5.5 m permitted;
A reduced minimum setback from the driveway to side lot line of 0.37 m on the east side, whereas a minimum of 0.6 m is required;
A reduced minimum setback for residential structures less than 3.0 m in height, of (a) 0.25 m on the west side of the Site; and (b) 0.37 m on the east side of the Site, instead of the minimum side setback requirement of 0.6 m.
8The intent of the Work by the Applicant was to widen the paved area of the front driveway and permit unrestricted access to the walkway running the length of the east side of the dwelling, widened to accommodate wheelchair access through the rear accessible entrance. Unfortunately, in doing so without a building permit, the Applicant exceeded the performance standards. The expanded width of the driveway exceeded the minimum permitted width and exceeded the minimum required setback from the side lot line. The width of the walkway structure on the west side of the dwelling also exceeded the minimum required width, leaving little open surface area to accommodate drainage.
9The parties have since discussed a resolution that would allow for certain variances but also address matters of excess in the Work. The Applicant has agreed to remove certain portions of the driveway to bring it into zoning compliance and to reduce the walkway width at certain locations on the west side. The result is that the variances are amended from those originally forming part of the Application and more limited in nature. The first variance identified above is withdrawn, and each of the three setback numerical variances are reduced, but the configuration will nevertheless permit the wheelchair access through the limited-width west-side walkway to the rear of the Site, and around the existing gas meter, window well and exposed pipes.
10The amended variances which are now the subject of this Application and hearing and requested from the Tribunal are as follows (the “Variances”):
Section 5.15.2 (f) – to permit a minimum setback of 0.28m from a driveway to a side lot line for detached dwellings (east side) – whereas the by-law requires 0.6m;
Table 4.1 – to permit an interior side yard setback of 0.26m (west side) and (0.28m east side) for residential accessory buildings/structures 3.0 metres or less in height, in the rear or interior side yard, whereas, the minimum interior side yard setback is 0.6 metres.
11The Work is to be completed and revised such that it will comply with the Proposed Site Plan (“Site Plan”) agreed to by the parties and appended to this Decision and Order as Attachment 1. Due to the circumstances, whereby the Applicant constructed the Work well before making the Application, the Applicant has agreed to: (1) remove the concrete surface areas of the west walkway and driveway as noted on the Site Plan; (2) reconstitute the lawn area excessively reduced by the installation of the larger driveway and now increased by the agreed-upon reduction in the driveway width, and the boulevard area between the sidewalk and Weir Street; (3) reduce the width of the driveway to comply with the zoning by-law; and (4) install lamps or planters to delineate the driveway from the walkway at the front of the dwelling and Site.
AMENDMENT OF APPLICATION
12As the Tribunal is being asked to amend the application from what was before the Committee, it must consider whether the amendment is minor and whether further notice is required under the Planning Act (“Act”). Both planners are of the view that the amendments of the requested variances in this hearing, as compared to the originally requested variances, arise due to the agreed-upon numerical reduction in the requested Variances and the Applicant’s willingness to return the driveway to the maximum width permitted under the Zoning By-law. The Tribunal finds that the changes are indeed minor. The Tribunal accepts this evidence and finds that the amendments are minor and that no further notice is required under s. 45(18.1.1) of the Act.
ANALYSIS OF THE CONTEXT AND PLANNING EVIDENCE PRESENTED
The Issues and Test
13In this Appeal, the issue before the Tribunal is whether each of the requested Variances meet the four tests set out in s. 45(1) of the Act and whether they should be authorized by the Tribunal. The Tribunal must accordingly be satisfied, in this appeal, that the Variances that would regularize the Work on the Site, if granted: (a) maintain the general intent and purpose of the Town’s Official Plan (“Town OP”); (b) maintain the general intent and purpose of the Town’s Zoning By-Law No. 2010-050 (the “ZBL”); (c) are minor, and (d) are desirable for the appropriate use and development of the Site and dwelling.
14Additionally, the Variances must also be consistent with the Provincial Policy Statement 2020 (“PPS”) under s. 3(5) of the Act. The Tribunal must also have regard to matters of Provincial interest under s. 2 of the Act and to any decision made by the Committee, as well as all information and material that the Committee considered in making its decision.
The Site Context
15The Site is located in the Town of Bradford West Gwillimbury, within the Town’s Urban Area, and located on the north side of Weir Street, west of Langford Boulevard. Photos of the Site and dwelling were provided with Mr. Pileggi’s affidavit evidence which shows the existing two-storey single detached dwelling with an attached garage, and the west walkway and front driveway area that is the focus of examination in this hearing.
16The Site is within an urban residential area, and the immediate area surrounding the site is largely made up of single detached dwellings. Further south of the site (past Miller Park Avenue) is a mix of single-detached, semi-detached and townhouse dwellings. There are larger scale commercial uses east of Langford Boulevard.
17The Tribunal has reviewed the photographs provided as exhibits to Mr. Pileggi’s affidavit, as well as the Site Plan at Attachment 1, which assist in understanding the streetscape of the dwelling on the Site and the layout of the driveway and walkway. Due to the facts and issues in this Appeal there is little else relating to the Site’s context that is remarkable or relevant to this Appeal.
Maintain the General Intent and Purpose of the Town’s Official Plan
18Aside from the concerns raised by the Town and the neighbour to the west, relating primarily to the absence of any soft-scape runoff due to the widened concrete areas, and the excessively wide driveway and reduced front yard soft landscaping, there were no specific objections raised by any other person.
19As part of the processes leading to the resolution the Applicant secured an engineering report of SCS Consulting Group which concluded that with the removal of the concrete identified in Attachment 1, and the surface drainage of the Site’s side and front yards towards Weir Street, the final form of the Work will not alter the adjacent property’s surface drainage towards the street or adversely impact surface drainage conditions.
20The Town OP requires that every development provide a stormwater management plan to demonstrate that overall stormwater drainage patterns are maintained. Based upon the engineering report it was the opinion of Mr. Pileggi, and the concurrence of Mr. Slopack that the Work, as permitted by the Variances, will thus maintain the general intent and purpose of those policies in the Town’s OP.
21The Tribunal finds that the Variances, as they validate the Work, and with the fulfillment of the conditions, maintain the general intent and purpose of the Town OP.
Maintains the General Intent and Purpose of the Zoning By-law
22It was the opinion of Mr. Pileggi, with the concurrence of Mr. Slopack, that the purpose and intent of the side yard setbacks for accessory structures in the ZBL is to balance hard and soft landscaping and to ensure that engineered drainage patterns can be maintained. In Mr. Pileggi’s and Mr. Slopack’s view, the Variances balance the need for access to the building for accessibility purposes, maintain the required proportionality of driveway and lawn in the front yard, and ensure that appropriate drainage can continue to occur. As such, the planners opine that the Variances thus maintain the purpose and intent of the ZBL.
23The Tribunal accepts this evidence and finds that the Variances, as they validate the Work, with the fulfillment of the conditions, maintain the general intent and purpose of the Town’s ZBL.
Variances are Minor and Desirable
24Mr. Pileggi observed that the Variances as they will regularize the Work, with the reduced width of the driveway, create no visual impact, result in no adverse impact, and, in this instance, serve to balance the need for wheelchair accessibility to the rear entrance to accommodate family residents with the necessity of ensuring that adequate drainage is in place. Though visually the wider driveway area has encroached upon the required soft landscaping in the front yard, Mr. Pileggi noted that no drainage issues had been noted to date without the removal of the concrete.
25The fulfillment of the condition to remove the identified concrete areas, inclusive of the expanded driveway width will, in the opinion of the planners, create the balance between hard and soft landscaping, and achieve the desired drainage requirements. The conclusion of both planners is that the Variances are minor and are desirable and thus meet both required tests in s. 45(1) of the Act. The Tribunal accepts this evidence and acknowledges that once the conditions are satisfied, the Variances will result in little or no visual impact upon the streetscape and serve to ensure that drainage requirements are met, as noted in the engineer’s report.
26Upon the evidence the Tribunal finds that with the satisfaction of the conditions, the Variances are minor, and desirable for the appropriate use and development of the Site and dwelling.
“Build First, Ask Later”
27The Tribunal recognizes, in this case, that the authorization of the Variances represents the retroactive validation of non-compliance with the Town’s ZBL and the end-result of a “Build First, Ask Later” approach to planning and development. To be clear, such conduct is not regarded by the Tribunal as appropriate, nor condoned, and is, to the contrary, considered objectionable by the Tribunal since such conduct gives rise to a number of policy and procedural concerns.
28In considering the four tests and the issues before the Tribunal, no adverse or judgmental type of presumption will be made relating to the fact that the work was begun in advance of the variances being approved and neither will any concern of hardship or prejudice to the Applicant be considered as a relevant factor, as this might conceivably occur if the variances are refused.
29In such cases the Tribunal will assess the merits of the Appeal without regard for the fact that work has already been undertaken (without the required planning permissions) and the Applicant bears the risk that the Application will be refused, and the unauthorized work then subject to municipal orders. Alternatively, as is the case here, the Applicant may incur significantly greater costs related to appeal proceedings and to the removal or alteration of construction in order to achieve a result that would have been better pursued through the proper application processes endorsed by s. 45 of the Act
SUMMARY AND FINDINGS
30Given the limited nature of the Variances there is little contained in the higher order policies of the PPS that are engaged by the Application, as amended. The Tribunal has noted that the facts relating to the purpose of the walkway, to accommodate mobility issues of residents is something that is identified as a matter of Provincial interest and in that respect, the approval of the Variances has regard to that matter, as well as the orderly development of safe and healthy communities.
31Upon inquiry, both Mr. Pileggi and Mr. Slopack confirmed their view that the Variances were consistent with the PPS.
32Upon all of the planning evidence now received from Mr. Pileggi and Mr. Slopak, and upon the analysis of the evidence and the various findings, the Tribunal accepts the uncontroverted planning evidence presented in this hearing and finds that the requested Variances, with the imposed conditions as referred to, maintain the general intent and purpose of both the Town OP and the ZBL, are minor and are desirable for the appropriate development and use of the Site.
33The Tribunal also finds that the Variances are consistent with the PPS and have regard to matters of Provincial interest under s. 2 of the Act, including the orderly development of safe and healthy communities and the accessibility for persons with disabilities to matters to which the Act applies. In making this decision the Tribunal has had regard to the decision of the Committee, and of the Town in reaching the resolution, as well as the information and materials that were before the Committee and the Town.
34Upon all of the evidence, and with the findings made, it is accordingly the decision of the Tribunal that the Variances, as amended without further notice, and subject to the conditional agreed-upon removal of the identified concrete areas and adjustments to the Work, represent good planning, and should be authorized.
ORDER
35The Tribunal having been asked to consider an application which has been amended from the original application, has determined, in accordance with s. 45(18.1.1) of the Act, that the amendments to the variances are minor and that no further notice is required.
36The Tribunal orders that the Appeal is allowed in part and, subject to the conditions set out below, the following Variances are authorized:
Section 5.15.2 (f) – to permit a minimum setback of 0.28 m from a driveway to a side lot line for detached dwellings (east side) – whereas the by-law requires 0.6 m;
Table 4.1 – to permit an interior side yard setback of 0.26 m (west side) and (0.28 m east side) for residential accessory buildings/structures 3.0 m or less in height, in the rear or interior side yard, whereas, the minimum interior side yard setback is 0.6 m.
37The authorization of the Variances is subject to the conditional requirement that the Applicant attend to the following within three months of receiving this Decision and Order of the Tribunal:
the paved areas identified on the Proposed Site Plan attached to this Decision and Order as Attachment 1, are to be removed, and the increased front lawn area reduced by the non-authorized installation of the larger driveway, as well as the boulevard area, are to be reconstituted as shown on the Site Plan, all to the satisfaction of the Town; and
decorative lamp posts or planters are to be placed on the curb on both sides of the driveway to prevent parking and enhance the aesthetics of the site, in compliance with the Town of Bradford West Gwillimbury Driveway Guidelines D.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
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.