MacCallum v. Cambridge (City), 2021 CanLII 97467

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 05, 2021

CASE NO(S).: PL210269

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

Appellant: Ian MacCallum

Applicant: Sarah Martin-Mills and Philip Mills

Subject: Minor Variance

Variance from By-law No.: 150-85

Property Address/Description: 206 Hexam Street

Municipality: City of Cambridge

Municipal File No.: A18/21

OLT Case No.: PL210269

OLT File No.: PL210269

OLT Case Name: MacCallum v. Cambridge (City)

Heard: July 28, 2021 by video hearing

APPEARANCES:

Parties	Representative
Sarah Martin-Mills and Philip Mills (“Applicant”)	Self-represented
Ian MacCallum (“Appellant”)	Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON JULY 28, 2021 AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an appeal under s. 45(12) of the Planning Act (“Act”), of the City of Cambridge Committee of Adjustment (“CoA”) decision to approve the application of a minor variance for the property municipally known as 206 Hexam Street (“Subject Site”).

MOTION TO ADJOURN

2The Appellant brought forward to the Tribunal a motion for adjournment for the following reasons:

1. At the CoA meeting, written submission in opposition had not been read out loud. The Appellant has still not received any follow up from the City staff as to what extent the written submissions were recognized. This has raised concerns that procedural fairness was not addressed at the CoA to the Appellant’s satisfaction.

2. In the opinion of Appellant, the repercussions of the proposed minor variance were not adequately addressed by the CoA. The Appellant would like the City to make clarification as when the concerns would be dealt with.

3. A survey of the property line had been conducted by the Applicant to determine the property line between 206 and 216 Hexam Street. While the Appellant received a copy of the survey from the City, the Appellant found the survey drawing to be unreadable. A request to the City was made for a legible copy of the survey that has not been provided to date.

4. The Appellant has requested that the City Building Department investigate the concerns of the front entrance steps and deck. To date, there has been no reply from the City staff regarding the concerns.

5. The Appellant has raised concerns to the City Heritage Planner in regard to the potential change in appearance of the original dwelling structure. To date, there has been no reply from the City staff regarding the concerns.

6. The proposed minor variance would allow a two-storey structure. The Appellant believes this would only exacerbate an already problematic street parking situation. The Appellant raised concerns that this was recognized by a member of the CoA but was not dealt with at the meeting. The Appellant would like a satisfactory answer from the City on how the parking will be addressed before the commencement of a hearing.

7. The Appellant has requested copies of documents submitted by the City to the Tribunal to be fully prepared.

3The Tribunal informed the Appellant that the matter before the Tribunal was a de novo hearing, meaning that the minor variance matter before the Tribunal would be considered to have been heard from the beginning. The Appellant’s concerns on procedures that happened during the meeting of the CoA has no relevance to this hearing.

4It is the duty and obligation of the Appellant to be prepared to appear before the Tribunal. The Tribunal is satisfied that the Appellant had ample opportunity to prepare for the hearing to be able to provide planning evidence as to how the application for a minor variance does not meet the legislative four tests as subscribed in the Act. Not having a satisfactory answer from City staff is not an adequate reason to delay the hearing.

5In addressing the concerns of what was provided to the Tribunal from the City, the Tribunal went through the list of contents in the Municipal Record. The Tribunal is satisfied that the Appellant does have the relevant documents provided to the Tribunal from the City.

6For the above stated reasons, the Tribunal dismisses the Motion of Adjournment of the Ian MacCallum and the hearing proceeded as scheduled.

MINOR VARIANCE

7The Appellant, in evidence as to why the Tribunal should deny the application of minor variance, reiterated the same points that had been made as rationale for the Motion of Adjournment.

8The Appellant insisted that he was appearing on behalf of several residents in the neighbourhood, and specifically the immediate neighbour to the Subject Site at 216 Hexam Street. At the time of the hearing, the Tribunal had not received any correspondence or documentation that corroborated or gave authority to the Appellant to speak on behalf of anyone other than himself.

9However, the Tribunal notes that in the provided Municipal Record, it contains the Planning Report to the CoA. The report to the CoA does included the five written submissions in opposition. While the letters may not have been read out loud, the Tribunal is satisfied that the written submissions had been provided to the CoA, and now the Tribunal, in adequate time to be informed.

10The Subject Site currently has an existing garage that is legally non-conforming as it does not meet the current side-yard setbacks of the Zoning By-law No. 150-85. The Applicant proposes to replace the current garage with a new structure in the same location, that will include a garage and second-storey residential area.

11The Applicant is requesting the following three minor variances to Zoning By-law No. 150-85:

1. To allow a reduction of side-yard setback from the permitted 1.2 metres (“m”) to a side-yard setback of 0.3 m.

2. To allow for a deck encroachment of 2.72 m where a front yard deck encroachment allows for 2.5 m.

3. To allow for the reduction of the rear-yard setback from the permitted 7.5 m to a rear-yard setback of 4.5 m.

12In the approval decision issued by the CoA, the City lists several conditions that have been accepted by the Applicant that include:

1. That the minor variance be substantially in keeping with the plans submitted with the application.
2. That there be no windows or doors installed along the southern wall of the addition.
3. That a grading plan be prepared to the satisfaction of City of Cambridge Development Engineering for the overall development, including proposed locations of roof leaders, rear yard catch basis (if required) and swales.
4. That the property owner submits photographs of the sunroom’s interior and exterior to the satisfaction of the City of Cambridge Senior Planner-Heritage.
5. That the setback from the interior property line to the foundation and wall of the addition maintain a minimum of 0.6 m (1.9 feet).

FOUR TESTS OF A MINOR VARIANCE

13Under s. 45(1) of the Act, a minor variance must meet the following four tests:

1. Is the application minor in nature?

2. Is the application desirable for the appropriate development of lands in question?

3. Does the application conform to the general intent of the zoning by-law?

4. Does the application conform to the general intent of the Official Plan?

14The Tribunal is satisfied that the four tests of a minor variance has been meet.

15The minor variance does not change the intent or current land use of the Subject Site and therefore conforms with the City’s Official Plan and the general intent of the zoning by-law.

16The changes to the setbacks are considered minor in nature. The side-yard setback to the garage would have no change to what exists with the current garage. The additional rear-yard setback to accommodate for additional space for the second-storey dwelling area is reasonable.

17The improvements of an additional dwelling area to the Subject Site is efficient and good land use planning by creating more opportunities for housing opportunities within an urban residential area. The additional conditions by the City that would prevent any doors or windows on the south side of the garage structure will provide privacy for the immediate neighbours at 216 Hexam Street. The Tribunal finds that the application is an appropriate and desirable development of the Subject Site.

ORDER

18THE TRIBUNAL ORDERS that the appeal under s. 45(1) of the Planning Act is dismissed.

“Steven Cooke”

STEVEN Cooke

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.