Murray v. Elizabethtown-Kitley (Township), 2021 CanLII 72201

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 04, 2021

CASE NO(S).: PL190498

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

Appellant: David Murray

Applicant: Tara Howard

Subject: Minor Variance

Variance from By-law No.: 13-21

Property Address/Description: 523 Jowsey McLean Road

Municipality: Township of Elizabethtown-Kitley

Municipal File No.: A/06/19

OLT Case No.: PL190498

OLT File No.: PL190498

OLT Case Name: Murray v. Elizabethtown-Kitley (Township)

Heard: June 30, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
David Murray ("Appellant")	Emma Blanchard
Tara Howard ("Applicant")	Michael Polowin
Township of Elizabethtown-Kitley ("Township")	Tony Fleming

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON JUNE 30, 2021 AND ORDER OF THE TRIBUNAL

BACKGROUND

1Tara Howard, the Applicant, proposes to demolish the existing one-storey dwelling (450 square feet) at 523 Jowsey McLean Road and replace it with a new one-and-a-half storey dwelling of 950.5 square feet.

2In support of this intention, the Applicant applied for minor variances from the Township’s Comprehensive Zoning By-Law No. 13-21. These minor variances were approved by the Township’s Committee of Adjustment ("COA") with provisions on September 11, 2019.

3David Murray, the Appellant, felt that the variances approved were not minor in nature and that the proposed development is excessive when taken in summation.

AREA CONTEXT

4The subject property is situated on the south side of Jowsey McLean Road with water frontage and a boathouse on the St. Lawrence River, just west of the Brockville City Limits. It is 10.74 metres in width, with a depth of 65.63 metres deep on the east side and 57.51 metres on the west side. The lot has a narrower width but a similar depth compared to the abutting neighbours.

THE VARIANCES

5The minor variances from Zoning By-Law No. 13-21, applied for and approved in the original application to the COA, were as follows:

• Section 3.2, 2. Existing Undersized Non-Complying Lots, where an existing lot and a building or structure is to be erected, altered or used in accordance with the zoning by-law, any lot that abuts a water body shall have a minimum lot area of 0.2 hectares, whereas the existing lot has an assessed lot area of 0.085 hectares.

• Section 5.1, 2. Residential Type 1 (R1) Zone, Interior Side Yard (minimum) where 3 metres is required; whereas 2.32 metres at minimum is proposed to the east side lot line to the new dwelling and 1.52 metres at minimum is proposed to the west side lot line for the new dwelling.

• Section 5.1, 2. Residential Type 1 (R1) Zone, Floor Space Index ("FSI") for lot abutting a water body where 10% at maximum is permitted; whereas 11.64% is proposed, based on FSI and related Floor Area definitions, as the total area of the storeys contained within the exterior walls of the dwelling for the proposed one-and-a-half storey dwelling construction.

• Section 3.28, Yard and Water Setback Requirements, where attached covered deck/stairs/hot tub may project by not more than 1.5 metres into the required 30 metre setback; whereas part of the proposed hot tub would project a further 1.13 metres closer to the water beyond the 1.5 metre permitted encroachment.

6The minor variances were approved with the following conditions of approval:

1. That if any significant archaeological resource are unearthed as a result of the dwelling reconstruction or site alteration, it is the responsibility of the owner and their contractor that it be reported to the Ministry of Tourism, Culture and Sport and to the Township offices. If a burial site containing human remains is unearthed, it is the responsibility of the owner and their contractor that they immediately notify the appropriate authorities and comply with the Funeral, Burial and Cremation Services Act.

2. That no further unattached deck/hot tub/gazebo encroachment under section 3.27 of Zoning By-law No. 13-21, as amended, be permitted on the lot.

3. That no alteration to the lot's current grade results from the proposed construction and that the resultant roof related runoff be contained within the limits of the subject property and not impacting neighboring properties and this condition requirements are to be met to the sole satisfaction/discretion of the Township’s Chief Building Official.

4. That an undertaking agreement be entered into with the Township to ensure that the existing vegetation between the dwelling and the riverfront is retained and/or improved, as recommended and detailed by the Cataraqui Region Conservation Authority in their submitted comments on A06/19.

5. That building materials offering a fire resistant rating for the exterior of the dwelling (all sides and the roof also, as deemed necessary by the Fire Chief) to reduce the associated risks of exposure from two neighboring dwellings in the event of a fire. The specific nature of the proposed construction materials to be used to meet this condition must be approved by the Fire Chief as part of the building permit application and the dwelling subsequently maintained with these same materials.

THE HEARING

7This was a settlement hearing as the Applicant and the Appellant have reached mutually acceptable Minutes of Settlement, endorsed by the Township of Elizabethtown-Kitley ("Township").

8Youko Leclerc was called by the Applicant, and qualified by the Tribunal, as an expert witness on land use planning matters.

9Mr. Leclerc provided the Tribunal with a chronological and contextual overview of the proposed application and the subsequent revisions as it evolved through the process of mediation with the Appellant.

SETTLEMENT PROPOSAL

10The fourth minor variance, which was previously approved by the COA, was withdrawn during the process of mediation with the Appellant. The revised and agreed upon concept plan shows the proposed dwelling being shifted northward towards the road. With this northward shift, a variance from Section 3.28 (Yard and Water Setback Requirements) is no longer necessary.

11Section 3.2, 2. Existing Undersized Non-Complying Lots, where in order for an existing lot and a building or structure to be erected, altered or used in accordance with the Zoning By-law, any lot that abuts a water body shall have a minimum lot area of 0.2 hectares; whereas the existing lot has an assessed lot area of 0.0648 hectares. The original lot area of 0.085 hectares was based on incorrect MPAC assessment maps and has since been corrected to 0.0648 hectares based on survey data.

12Section 5.1, 2. Residential Type 1 (R1) Zone, Interior Side Yard (minimum) where 3 metres is required; whereas 2.50 metres at minimum is proposed to the east side lot line to the new dwelling and 1.52 metres at minimum is proposed to the west side lot line for the new dwelling.

13Section 5.1, 2. Residential Type 1 (R1) Zone, the FSI for a lot abutting a water body where 10% at maximum is permitted; whereas 15.6% is proposed, based on the FSI and related Floor Area definitions, as the total area of the storeys contained within the exterior walls of the dwelling for the proposed one-and-a-half storey dwelling construction.

14With the fourth variance having been withdrawn by the Applicant, the above revised variances have been mutually agreed upon by the Appellant and Applicant and endorsed by the Township.

15The parties have agreed that these variances are to be subject to two very important conditions as follows:

a. The Applicant must comply to all conditions of approval imposed by the COA and,

b. A requirement that the development of a new single-family dwelling on the subject property be in strict accordance with the Settlement Concept Plans and Elevations to scale as described in Schedules "C" and "D" of the Minutes of Settlement.

THE TESTS AND THE PLANNING EVIDENCE

16The four tests for minor variances are as follows:

• They must maintain the general intent and purpose of the Official Plan (both County and Township),

• They must maintain the general intent and purpose of the Zoning By-law,

• They must be considered desirable for the appropriate development or use of the land, building or structure,

• They must be considered minor in nature.

Maintains the General Intent and Purpose of the Official Plan (both County and Township)

17With respect to the first test, Mr. Leclerc took the Tribunal to Policies 3.1 (a), 3.3.2 (a) iii) and 7.6.3 of the United Counties of Leeds & Grenville Official Plan ("OP"). The OP objectives support a healthy, integrated and viable Rural Area by maintaining and building upon the rural character and leveraging recreational and tourism opportunities. The OP permits limited residential development as defined in the local municipal Official Plans. The OP allows minor variances from the requirements of a local municipal Zoning By-law through the Township COA.

18Mr. Leclerc also provided evidence from the Township OP in Policies 1.2.3, 2.13.1, 2.14, 2.15 and 3.9, which provide appropriate guidance, objectives and direction for residential development and allows minor variances where appropriate. The COA noted that the application is already an existing undersized lot with building rights. He pointed out to the Tribunal that the Committee was supportive of the proposed development as the new building would be far preferable to the existing dwelling and would be a good fit in the neighborhood.

19Mr. Leclerc further opined that the Zoning By-law, which implements this Official Plan, may include provisions to permit the development of existing lots of record that do not meet the minimum size requirements of this Plan, provided that zoning provisions such as yards, setbacks and lot coverage can generally be met.

20Based on the oral evidence provided by Mr. Leclerc, the Tribunal finds that the variances maintain the general intent and purpose of both the County and Township Official Plans.

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

21Mr. Leclerc opined that the scale of the proposed residential use is consistent with other existing buildings and its character is relatively in line with the surrounding character. The By-law recognizes the subject property as an existing undersized non-complying lot.

22The revised application has reduced the scale and size of the dwelling as well as being relocated further northward from the river resulting in a reduced encroachment.

23Mr. Leclerc also advised the Tribunal that other properties in the immediate vicinity, namely 521, 525, 527 and 529 Jowsey McLean Road have also varied from the Zoning By-law at some point in the past, with FSIs ranging from 13.8 % to 27.6%.

24Mr. Leclerc advised the Tribunal that the current R1 Zoning provisions specify a minimum dwelling unit floor area of 85 square metres. If this provision was strictly adhered to, most of the lots in this general area would exceed the maximum 10% FSI.

25Based on the evidence provided, the Tribunal finds that the proposal maintains the general intent and purpose of the Zoning By-law.

Are the Variances Appropriate and Desirable Development and Minor?

26The existing dwelling currently encroaches upon the High-Water Mark setback requirements for the St. Lawrence River. The proposed dwelling will be relocated further northward to reduce this encroachment and still maintain the minimum front yard setbacks.

27As noted at the COA meeting, the new building would be far preferable to the existing dwelling and would be a good fit in the neighborhood.

28Mr. Leclerc opined that the scale and massing of the proposal is consistent with the other buildings in the area, and the location of the upper storey windows looking east have been positioned to eliminate potential overlook on the Appellant’s property.

29Based on the above comments, the Tribunal finds that the proposed variances are minor in nature and represent a desirable development.

PARTICIPANT STATEMENT

30One Participant Statement was submitted by Don Moore. He stated his concerns as follows:

• Far too excessive development for such an undersized lot.

• It is neither minor nor desirable.

• It invades my privacy and shades my property.

• This development is not in character with the other properties in my neighbourhood.

31The Tribunal notes that 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.

32Based on the oral evidence and professional opinions of Mr. Leclerc, the prior approval from the COA, the Minutes of Settlement with the Appellant and the endorsement from the Township itself, the Tribunal finds that the variances should be authorized and that the proposed dwelling is in character with the other properties in the neighbourhood.

AMENDMENT OF VARIANCES

33As indicated above, the variances requested from the Committee, and now from this Tribunal, have changed slightly as a result of the agreed-upon settlement, due to the review of the MPAC assessment maps and the correct calculated floor area definition.

34As 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"). On this issue, Mr. Leclerc has indicated that, in his opinion, the amendments to the variances that were before the Committee are 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.

ORDER

35The Tribunal orders that the Appeal is allowed in part, and the variances as provided in the Table contained in Schedule "A" of the Minutes of Settlement in Attachment 1 to this Decision and Order, are authorized, subject to the following conditions:

• All conditions of approval imposed by the Committee of Adjustment Decision of September 16, 2019, as set out in paragraph 6 of this Decision be adhered to by the Applicant and approved by the Township and appropriate Authorities.

• The development of a new single family dwelling on the subject property be strictly, in accordance with the Settlement Concept and Preliminary Elevations, as attached to the Minutes of Settlement as Schedules "C" and "D" in Attachment 1 to this Decision and Order.

36The Tribunal, having been asked to consider an application which has been amended from the original application, the Tribunal has determined, in accordance with s. 45(18.1.1) of the Act, that the amendments are minor and that no further notice is required.

"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 ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

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