Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 14, 2022

CASE NO(S).: OLT-22-004115

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

Applicant/Appellant: Leigh Reid

Subject: Minor Variance

Description: To permit the construction of a new Secondary Dwelling Unit – Detached in the rear yard of the existing Single Family Dwelling

Reference Number: HM/A-22: 135

Property Address: 173 Homewood Avenue

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-22-004115

OLT Lead Case No: OLT-22-004115

OLT Case Name: Reid v. Hamilton (City)

Heard: November 3, 2022 via video hearing

APPEARANCES:

Parties	Counsel
Leigh Reid and Vanessa Robicheau (“the Appellants”)	Self-Represented
City of Hamilton (the “City”)	Rachel McVean

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Appellant has appealed the decision of the City’s Committee of Adjustment (“Committee”) which did not authorize a minor variance application (“MV Application”) regarding the property municipally known as 173 Homewood Avenue (“Subject Property”). This application was designed to facilitate the construction of a two storey structure which will include a two car garage on the ground level and a secondary dwelling unit on the second level (“Proposed SDU”).

2The Subject Property is located in the Kirkendall North area of the City. It is a long narrow lot with a two and a half storey older home and a single car garage with laneway access. The current single storey one car garage on the property will be replaced by the Proposed SDU. The MV application proposes to reduce the required minimum side yards setbacks for the Proposed SDU and to reduce the required minimum width for the unobstructed path leading from the front lot line to the rear lot line to the Proposed SDU.

3The following is a summary of the requirements of the Former City of Hamilton Zoning By-law No. 6593 (“ZB”) and the requested minor variances:

A. Variance One – Reduced Side Yard Setback

The ZB requires a minimum side yard setback of 1.2 metres. The Appellant is requesting a reduced minimum side yard setback resulting in a proposed minimum side yard setback of 0.45 metres for the Proposed SDU.

B. Variance Two – Reduced Unobstructed Access Path Width

The ZB requires an unobstructed path leading from the front lot line to the Proposed SDU be a minimum 1.0 metres in width. The Appellant proposes this be reduced to 0.6 metres.

HEARING

4The appeal of the Committee decision to the Tribunal is a hearing de novo of the Minor Variance application. Regard must be given to the Committee decision and material used to make it, but the Tribunal is free to make its own decision based on the evidence and submissions of the parties.

5This hearing was held on November 3, 2022. The City appeared and was represented by counsel. The City called the following witnesses: Zivko Panovski, Frank Peter, Joe Buordolone (“Mr. Buordolone” or the “City’s Planner”). Each of these witnesses was qualified as an expert. Mr. Buordolone was qualified to give evidence as an expert in the field of land use planning, Mr. Panovski was qualified as an expert to give evidence in the field of engineering, and Mr. Peter was qualified to give evidence in the field of building code compliance and building permits.

6The Appellant was self-represented and both he and his spouse, Ms. Vanessa Robicheau were affirmed to give evidence.

7At the beginning of the hearing Ms. Robicheau made an application to be added as a party to the proceedings, as a co-owner and resident of the Subject Property. Counsel for the City consented to the party status request and it was granted by the Tribunal.

CONTEXTUAL EVIDENCE

8Both Mr. Buordolone and Mr. Reid gave the following contextual evidence. The Subject Property is a long narrow lot which is smaller than the as of right zoning requirements for lot area. The single car garage currently fronting onto the rear laneway encroaches onto the Neighbour’s property at 171 Homewood by approximately six inches. There is a chain link fence that separates the properties which starts somewhere in the backyard and ends at the garage. There is a registered right of way between 171 Homewood and the Subject Property permitting access over 171 Homewood for the Subject Property.

9The property at 175 is separated from the Subject Property by a wood fence and the neighbour at 175 has a right of way over the Subject Property.

10At the start of the hearing, the parties agreed that the Proposed SDU is consistent with the Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe since it promotes more intense residential development in a serviced urban area.

11The focus of the evidence related to compliance with s. 45(1) of the Planning Act (“Act”).

1. GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN (“OP”)

The City’s Planner gave the following evidence. The property is identified as “Neighbourhoods” in Schedule E – Urban Structure and is designated “Neighbourhoods” in Schedule E-1 – Urban Land Use Designations in the Urban Hamilton Official Plan (“UHOP”). Policies B.3.2.4.4, E.3.2.3, E.3.2.4 and E.3.4.3 amongst others, are applicable and permit single detached dwellings and secondary dwelling units provided that they comply with all applicable policies and ZB requirements. These policies require that any residential intensification development enhance and be compatible with the existing residential neighbourhood.

In Mr. Burodolone’s view, the reduced side yard setback would result in an over development of the Detached Secondary Dwelling Unit that is not compatible with the existing scale and planned character of the neighbourhood. The Proposed SDU would be wider than the house currently on the Subject Property and create massing issues.

With respect to the Access Path Variance, the reduced width does not comply with ZB requirements.

In his view, the Proposed SDU to be constructed if the minor variances are allowed would not maintain the intent and purpose of the UHOP since it is not compatible with the Neighbourhood and does not comply with the ZB.

The Appellant did not have planning evidence to counter this argument. His evidence pointed to other SDU units in the same laneway. He believes that the Proposed SDU would be compatible within the existing residential context. The Appellant also argued that the City of Toronto requirements permitting an access path established using a right of way with the neighbouring property at 171 Homewood should be adopted since it would comply with the ZB width requirements.

The City presented the evidence of Mr. Peter who identified the thought that went into the development of the Hamilton ZB standard for an Access Path. He testified that a joint policy was developed by the Chief Building Official and the Chief Fire Prevention Official which deliberately did not follow the City of Toronto approach. The Policy requires that the Subject Property must provide a minimum 1.0 metre wide path from the public street to the rear of the property on the lot itself and it could not rely on a neighbouring property to provide it.

Since Appellants evidence and arguments are not supported by the evidence of a planner or an expert in the Building Code Requirements or Fire Prevention, the Tribunal prefers the evidence given by the City’s Planner and finds that the MV application does not comply with the general intent and purpose of the UHOP.

2. GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW

Mr. Burdolone advised the Tribunal that the Subject Property is zoned “D” (Urban Protected Residential – One- and Two- Family Dwellings, Etc.) District, Modified, within the former City of Hamilton Zoning By-law 6593, which permits a single detached dwelling and a secondary dwelling unit in accordance with Section 19 under the ZB. The ZB imposes requirements for buildings to avoid adverse impacts on neighbouring properties.

The City Planner advised the Tribunal that the side yard setback identified by the ZB was implemented to allow for sufficient space to accommodate a drainage swale, allow for maintenance of the Proposed SDU and avoid scale and massing issues so that the development would be compatible with the surrounding Neighbourhood. He gave evidence advising that massing issues would result from the Proposed SDU if the proposed side yard variance is allowed. Mr. Panoviski gave evidence that the proposed reduced side yard could not fully accommodate the required drainage swale to properly drain the property resulting in possible adverse impacts to Subject Property and the two neighbouring properties.

The Appellant’s evidence refuting these points relied on the good will of Neighbours to deal with access and building the Proposed SDU in way to avoid the need for access for maintenance purposes.

Mr. Peter’s evidence related to the access path requirements supported the planning evidence that the intent of the unobstructed access pathway be on the Subject Property and the proposal for such a path to be over the Subject Property and the adjacent property was not appropriate from a planning point of view.

The Appellant pointed to the City of Toronto requirements as an example of a standard that he felt was more appropriate to support the MV application. The City of Toronto allows the access path to be on a right of way shared between properties provided that the City and the neighbours enter into a Limiting Distancing Agreement. The City advised the Tribunal that it would not enter into any such agreement since does not employ limiting distancing agreements for the purpose of a shared access path.

The Tribunal prefers the City’s evidence regarding maintaining the intent and purpose of the ZB. The Appellant’s evidence is not supported by a planner or expert relating to the building code or drainage and can not be given the same weight.

3. DESIRABILITY

Mr. Burdolone then dealt with the desirability of the Proposed SDU. He advised the Tribunal that in his opinion the reduced side yard setback would result in a building that is too large for the rear of the property and the 3 metre wide laneway where it would front. The wider building envelope of the SDU would result in a wider building envelope and massing issues for the Proposed SDU relative to the principal dwelling on the property.

Similarly, Mr. Burdolone was of the view that reduced access path width would not be desirable due to the potential for obstruction leading to potential negative impacts including safety and emergency access concerns for the Proposed SDU.

The Appellant pointed to the need for additional housing and the desirability of another housing unit. Unfortunately, this evidence was not supported by any planning evidence.

The Tribunal finds that the Proposed Development is not desirable.

4. MINOR

The planning evidence was that the proposed variances were not minor due to the potential adverse impacts from a planning point of view which were previously canvassed in this decision.

The Appellant’s response to these concerns did not convince the Tribunal that the proposed variances are minor.

The Tribunal finds that the minor variance application does not comply with section 45(1) of the Act and is unable to authorize it. The application does not maintain the intent and purpose of the UHOP or the ZB, it is not desirable or minor due to the identified adverse impacts from a planning point of view. Drainage, massing and maintenance access issues arise from the proposed reduced side yard setback. Potential safety and access concerns arise from the proposed access path. These adverse planning impacts do not support the minor variance application.

ORDER

THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By-law No. 6593 are not authorized.

“A. Cornacchia”

A. Cornacchia 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.