Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 30, 2022

CASE NO(S).: OLT-22-004007

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

Applicant/Appellant: John Duncan Bradley Coutts

Subject: Minor Variance

Description: MV Application for the approval of a Detached Accessory Dwelling Unit

Reference Number: A2/22

Property Address: 215 Merrett Drive

Municipality/UT: Barrie/Simcoe

OLT Case No.: OLT-22-004007

OLT Lead Case No.: OLT-22-004007

OLT Case Name: Coutts vs Barrie (City)

Heard: October 4, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
John Duncan Bradley Coutts	Matthew J. Hodgson
City of Barrie	Peter Krysiak*

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter had been scheduled for a one-day hearing commencing October 4, 2022, to consider the Appeal by John Duncan Bradley Coutts (the “Appellant”) under s. 45(12) of the Planning Act due to the City of Barrie (the “City”) Committee of Adjustment’s (the “COA”) decision to deny the minor variance application of five minor variance requests in relation to Zoning By-law 2009-141, as amended (the “ZBL”).

2The Subject Property is municipally known as 215 Merrett Drive, City of Barrie.

3The Subject Property consists of a lot known as “Lot 37 & Block C, Plan 1355”. The Subject Property has a lot area of approximately 960 square metres with 18 metres of lot frontage on Merrett Drive and 47 Metres of frontage on Yeates Drive.

4The Subject Property is located on the south-east corner of Merrett Drive and Yeates Drive and is within the Painswick North Planning Area in accordance with Schedule “B” of the City of Barrie Official Plan (the “OP”). The Subject Property is designated “Residential” in the City’s OP.

5The Subject Lands are zoned “Residential Single Detached Dwelling First Density” (R1) in accordance with Schedule “A” of the City of Barrie Zoning By-law 2009-141, as amended. The R1 zone permits a single detached dwelling, a second suite and a detached accessory dwelling unit (“DADU”).

6The Application was heard by the COA on May 25, 2022, and considered the following requested variances:

1. A rear yard setback of 0.60 metres, whereas the Comprehensive Zoning By-law 2009-141, under Section 5.2.9.2(a), requires a minimum rear yard setback of 7 metres;
2. A side yard setback of 0.60 metres, whereas the Comprehensive Zoning By-law 2009-141, under Section 5.2.9.2(a) requires a minimum side yard setback of 3 metres;
3. A landscape buffer area of 0 metres, whereas the Comprehensive Zoning By-law 2009-141, under Section 5.2.9.2(n), requires a minimum width of 3 metres along the rear and interior side lot lines adjacent to the detached accessory dwelling unit;
4. A permanent structure erected for human occupancy served by a septic sewage system, whereas the Comprehensive Zoning By-law 2009-141, under Section 5.2.9.2(o), requires a permanent structure erected for human occupancy be served by municipal water supply and municipal sanitary sewage disposal facilities; and
5. A permanent structure erected for human occupancy served by a septic sewage system, whereas the Comprehensive Zoning By-law 2009-141, under Section 4.5.1, requires a permanent structure erected for human occupancy be served by municipal water supply and municipal sanitary sewage disposal facilities.

7For the COA meeting on May 25, 2022, the City of Barrie Planning Staff made the following recommendation for the COA’s consideration:

Planning staff are of the opinion that the subject application does not meet the four tests required to grant a minor variance under section 45(1) of the Planning Act, as the proposed detached accessory dwelling unit does not comply with the City’s Official Plan or Zoning By- law, and the variances are not considered minor or desirable for the appropriate development or use of the land. Therefore, Planning staff recommend that Application No. A2/22 be denied.

8The COA denied the Application based on the following reasoning:

1. “The proposal conflicts with the intent and purpose of the City of Barrie Zoning By-law and Official Plan.
2. The proposal is not minor or desirable for the development and use of the land.”

9The Applicant then appealed the decision of the COA to the OLT.

LEGISLATIVE FRAMEWORK

10An appeal pursuant to s.45 of the Planning Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. These tests are that the variances:

(a) maintains the general intent and purpose of the Official Plan;

(b) maintains the general intent and purpose of the Zoning By-law;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land, building or structure.

11Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

PLANNING EVIDENCE

12The Tribunal heard land use planning opinion evidence from two witnesses, that being Michael Wynia (in support of the Applicant) and Madeline Kowalchuk (in support of the City).

13The Tribunal entered the following items as exhibits for the Hearing:

Exhibit #1 Witness Statement of Michael Wynia

Exhibit #2 Witness Statement of Madeline Kowalchuk

14The Tribunal affirmed and approved both witnesses to give opinion evidence in the area of land use planning.

15Mr. Wynia took the Tribunal through his witness statement and gave the Tribunal context of the site including photos of the Subject Lands and the accessory building and its location on the Property. In his photos, he demonstrated to the Tribunal the existing storey-and-a-half residential dwelling with the second suite and the location of the detached accessory structure, which is the proposed structure that is to be converted into a third Detached Accessory Dwelling Unit (the “DADU”).

16Mr. Wynia opined that the current use of the existing structure is that of a garage and storage. The proposed change to a DADU would not change the existing footprint, size, or height of the structure, only the approved use of the said structure. Since the use of the structure is changing, the minor variances are needed in order for the Subject Property to be in compliance with the ZBL.

17Mr. Wynia demonstrated to the Tribunal that the R1 Zone allows the permitted DADU as the zoning allows for three units on a residential lot. This permitted use was a result of the City of Barrie’s amendment to ZBL 2009-141 through By-law 2021-085 in October of 2021. The City, in effect, amended the by-law to be in compliance with the Province’s Bill 108, the More Homes, More Choices Act, 2019, S.O. 2019, c.19 which authorizes additional residential dwelling units. Bill 108 authorizes two residential units in a house and also authorizes a residential unit in an ancillary structure to a house. This can only be accomplished by amendments to the Official Plans of a municipality, which have been completed by the City.

Provincial Policy Statement, 2020 (the “PPS”)

18Mr. Wynia then took the Tribunal through the Provincial Policy Statement, 2020 (the “PPS 2020”); specifically policy 1.4 which sets out that municipalities are to establish an adequate supply of housing through the establishment of various housing related targets. The most applicable sub-policy to 1.4 is s. 1.4.3(b):

Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area by:

b) permitting and facilitating:

1. all housing options required to meet the social, health, economic and well-being requirements of current and future residents, including special needs requirements and needs arising from demographic changes and employment opportunities; and

2. all types of residential intensification, including additional residential units, and redevelopment in accordance with policy 1.1.3.3;

c) directing the development of new housing towards locations where appropriate levels of infrastructure and public service facilities are or will be available to support current and projected needs;

d) promoting densities for new housing which efficiently use land, resources, infrastructure and public service facilities, and support the use of active transportation and transit in areas where it exists or is to be developed;

e) requiring transit-supportive development and prioritizing intensification, including potential air rights development, in proximity to transit, including corridors and stations; and;

f) establishing development standards for residential intensification, redevelopment and new residential development which minimize the cost of housing and facilitate compact form, while maintaining appropriate levels of public health and safety.

19Mr. Wynia opined that the use, if permitted, would facilitate an increase in housing options, would allow for appropriate intensification in an authorized zone, and, the Subject Lands have an appropriate level of private infrastructure available since municipal services are currently unavailable and planned. If municipal services become available in the future, the Applicant is willing to sign a future servicing agreement that would ensure that the Subject Property would connect to these services when they become available. The Subject Property is close to active transit and this intensification can be supported by local public transit. The level of intensification does not create a public health or safety concern. Lastly, Mr. Wynia opined that the updated sewage system has the capacity to support a DADU. The upgraded sewage system was designed to support the DADU when it was purposed to the City of Barrie for approval, whether the DADU was approved by the COA or not.

20Mr. Wynia took the Tribunal through s. 1.6.6.4 of the of the PPS 2020 which states:

Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In settlement areas, individual on-site sewage services and individual on-site water services may be used for infilling and minor rounding out of existing development.

21Mr. Wynia opined that there are not any municipal services available or currently planned. The upgraded sewage system was approved by the City of Barrie and the site conditions are suitable with no negative impacts. The Applicant is willing to connect to these services if and when they become available. With this in mind, Mr. Wynia opined that the proposal is consistent with the PPS.

22On the contrary, Ms. Kowalchuk opined that the proposal is not consistent with the PPS, as s. 1.4.3(c) of the PPS states that:

directing the development of new housing towards locations where appropriate levels of infrastructure and public service facilities are or will be available to support current and projected needs.

23Ms. Kowalchuk opined the proposal does not have appropriate levels of infrastructure in place in order to support the DADU unit.

24In addition, Ms. Kowalchuk took the Tribunal to s. 1.6.6.2 of the PPS:

Municipal sewage services and municipal water services are the preferred form of servicing for settlement areas to support protection of the environment and minimize potential risks to human health and safety. Within settlement areas with existing municipal sewage services and municipal water services, intensification and redevelopment shall be promoted wherever feasible to optimize the use of the services.

25In her opinion, Ms. Kowalchuk stated that since there are not municipal services available or planned for the SP, the proposal is not consistent with the PPS.

The Growth Plan for the Greater Golden Horseshoe, 2020 (the “GH”)

26Mr. Wynia took the Tribunal through the GH and demonstrated that the City of Barrie is an Urban Growth Centre with a Built-Up Area. The City of Barrie is identified as a Primary Settlement Area within the Simcoe Sub-Area. The SP is located within this area.

27In Mr. Wynia’s opinion, the Application does not involve any expansion of a settlement area, employment lands, public spaces, agricultural lands, hazard lands or natural heritage features. s. 2.2.6(a)(i) of the GH states:

1. Upper- and single-tier municipalities, in consultation with lower-tier municipalities, the Province, and other appropriate stakeholders, will:

a) support housing choice through the achievement of the minimum intensification and density targets in this Plan, as well as the other policies of this Plan by:

i) identifying a diverse range and mix of housing options and densities, including additional residential units and affordable housing to meet projected needs of current and future residents;

28Mr. Wynia demonstrated that s. 3.2.6 addresses the matter of servicing. Section 3.2.6 states:

Municipalities should generate sufficient revenue to recover the full cost of providing and maintaining municipal water and wastewater systems.

2. Municipal water and wastewater systems and private communal water and wastewater systems will be planned, designed, constructed, or expanded in accordance with the following:

a) opportunities for optimization and improved efficiency within existing systems will be prioritized and supported by strategies for energy and water conservation and water demand management;

b) the system will serve growth in a manner that supports achievement of the minimum intensification and density targets in this Plan;

29Mr. Wynia opined that the property is in an area which had been developed with private services. It could potentially be serviced with municipal services, however, these are not planned at this time. The newly installed septic system has been designed to service the existing units and the proposed new unit. The new septic system has been approved by the City of Barrie and the Applicant is, once again, willing to enter a service agreement with the City if municipal services become available.

30Ms. Kowalchuk gave her opinion that the proposal does not conform to the GH. Section 2.2.1.2(b)(ii) which states:

growth will be limited in settlement areas that:

are not serviced by existing or planned municipal water and wastewater systems;

31Ms. Kowalchuk stated that since the proposed DADU will be serviced on private services, as such, the Proposal does not conform to the GH.

City of Barrie OP

32Mr. Wynia took the Tribunal through multiple sections of the OP related to housing. Starting with s. 3.3.1, Mr. Wynia opined that the proposal helps in achieving the housing goals:

(a) To provide for an appropriate range of housing types, unit sizes, affordability and tenure arrangements at various densities and scales that meet the needs and income levels of current and future residents. (Mod D (o)(i))

(b) To ensure that the quality and variety of the housing stock is maintained and improved.

(c) To promote building designs and densities for new housing which efficiently use land, resources, infrastructure and public service facilities, and support and contribute to safe, vibrant, pedestrian and cyclist-friendly streetscapes.

(d) To ensure the development of complete communities with a diverse mix of land uses, a range and mix of employment and housing types, high quality public open space and easy access to local stores and services.

(e) To encourage all forms of housing required to meet the social, health and well-being requirements of current and future residents including special needs requirements. (Mod D (o)(ii)

(f) To direct the development of new housing towards locations where appropriate levels of infrastructure and public service facilities are or will be available to support current and future population. (Mod D (o)(iii))

33As for s. 3.3.2.1(b) and (c), Mr. Wynia opined that the proposal contributes to a wide range of housing including rental housing. The proposal also conforms with intensification in a built-up area to help support healthy neighbourhoods.

34Mr. Wynia opined that the SP is designated residential. Section 4.2 of the OP sets out the policies for the residential designation. The proposal helps in developing density that is supportive of transit, pedestrian and cycling as per s. 4.2.1(c). Section 4.2.1(f) targets density and appropriateness between uses and to minimize conflict. In Mr. Wynia’s opinion, the proposal conforms with these policies.

35A further policy on intensification, s. 4.2.2.6 of the OP states:

(a) Intensification can be achieved through residential conversions, infill, and redevelopment to promote an increase in planned or built densities and to achieve a desirable compact urban form.

(b) Residential intensification is encouraged in a number of general locations in the City and shall be focused in the Urban Growth Centre, Intensification Nodes, Intensification Corridors, and the Major Transit Station Areas identified on Schedule I of this Plan. Development proposals for higher densities in other locations will be considered subject to the policies of Sections 3.3 and 4.2 of this Plan. (Mod E (s))

(c) Intensification will contribute to development that is more compact and will efficiently use land and resources, optimize the use of existing and new infrastructure and services, support public transit and active transportation, contribute to improving air quality and promoting energy efficiency. (Mod E (t))

(d) Development applications that propose residential intensification outside of the Intensification Areas will be considered on their merits provided the proponent demonstrates the following to the satisfaction of the City:

i) that the scale and physical character of the proposed development is compatible with, and can be integrated into, the surrounding neighbourhood;

ii) that infrastructure, transportation facilities, and community facilities and services are available without significantly impacting the operation and capacity of existing systems;

iii) that public transit is available and accessible;

iv) that the development will not detract from the City’s ability to achieve increased densities in areas where intensification is being focused;

v) that sensitive, high quality urban design will be incorporated into the development including the efficiency and safety of that environment; and

vi) that consideration is given to the preservation of heritage resources.

36Mr. Wynia stated that in interpreting these policies, it must take into consideration the scale of the intensification. These policies do apply to all forms of intensification, including apartment buildings. The DADU is a much smaller form of intensification by using an existing structure. As such, Mr. Wynia opined that the proposal conforms to these policies.

37In Ms. Kowalchuk’s opinion, s.3.3.2.1(c) states that residential intensification includes secondary suites and conversion of existing housing into multiple forms. The City may specify standards in the implementing of ZBL matter such as minimum densities, built form height and setback regulations. This was developed in the ZBL for DADUs in 2021. The conversion of the existing structure is not a desirable form of intensification.

38Ms. Kowalchuk opined that under s. 4.2.2.3(b) (i) and (iii) encourages medium and high-density residential development to be located in the Intensification Areas and adjacent to arterial and collector roads. The intensification is to be directed towards areas where there are existing or planned services. The SP is not located on an arterial or collateral road and there are not any municipal services available or planned. As such, the Proposal does not conform with the OP.

39As for s.4.2.2.6(d), Ms. Kowalchuk opined that a portion of the SP is located within the Yonge Street and Little Avenue Intensification Node of the OP. Since part of the SP is outside of the Node, the SP cannot comply with 4.2.2.6(d)(ii) since municipal sewage services are not available.

City of Barrie ZBL 2009-141

40The Subject Lands are zoned under the City of Barrie Comprehensive Zoning By-law 2009-141. The Proposal is seeking relief from specific zoning provisions related to yard setbacks, landscape buffer and municipal servicing requirements.

41Mr. Wynia opined that the relief being sought for the side and rear yard setbacks only comes into effect as these variances are needed since the use of the structure is changing. Once again, the size and shape of the structure is not changing, just the approved use of the structure. If the structure had to be moved to meet the required setbacks, the new location would encroach on the newly installed and improved sewage system. The current location of the structure provides for less visibility due to its proximity to the rear and side yard fences. In Mr. Wynia’s opinion, there are no adverse effects on privacy since it is only the use of the structure that is changing. The structure is not tall enough to overlook the abutting neighbour.

42With regard to the relief sought for human occupancy served by a septic system, Mr. Wynia opined that the Official Plan permits residential development using private services in certain circumstances which are applicable to this Application. Section 4.5.1 states:

Municipal Services

No permanent building or structure shall be erected for human occupancy after the date of passing of this By-law unless such buildings or structures are served by municipal water supply and municipal sanitary sewage disposal facilities, or unless otherwise specified by this By-law.

43Mr. Wynia opined that the intent of s. 4.5.1 is maintained as the property has adequate servicing.

44The private sewage system was approved by the City of Barrie and has been appropriately sized to accommodate the DADU.

45In Ms. Kowalchuk’s opinion, the DADU cannot comply with the side and rear yard setback requirements. The requested relief does not provide adequate separation and privacy between occupants of the DADU and the abutting properties.

46As for the landscape buffer, Ms. Kowalchuk opined that the setback is required to provide adequate screening and buffering from the DADU to abutting properties. Relief to 0.0 m does not meet the intent of the ZBL.

47In consideration of the servicing issue, Ms. Kowalchuk opined that the intent of s. 4.5.1 is to prohibit any structure to be for human occupancy on private services after the enactment of ZBL 2009-141. As such, the DADU cannot come into effect until municipal services are available.

Desirable and Appropriate Development of the Land

48With regard to the DADU being a desirable use of the land, Mr. Wynia gave his opinion that the use is permitted. Meeting the required setbacks would require either moving the existing structure or replacing it entirely on a different location of the SP. This would cause conflict with the new septic system as well as removing foliage (a large tree) that provides benefits to the Applicant and the abutting neighbour. If the structure was to be moved, there would also be an increase of visibility from the abutting properties that currently does not exist.

49As for the servicing, the Zoning By-law permits private services since there are not any municipal services currently available. As such, Mr. Wynia opined that the variances are for provisions only and do not introduce any new building additions to the SP.

50Ms. Kowalchuk opined that the variances are not a desired use of the land since the relief being sought is a significant variation from the recently established standards that have been implements for DADUs by the City. She also opined that the servicing variance would further exacerbate a situation that is not compliant with the ZBL.

Minor in Nature

51Mr. Wynia opined that since only the provisional use is changing, the relief being requested is minor in nature and will not have any adverse effect to the neighbouring properties. The newly installed sewage system does have the capacity to safely service the existing dwelling and the DADU. The septic system has been approved by the City to handle the extra capacity of the DADU.

52Ms. Kowalchuk opined that the proposed DADU was not constructed for human occupancy and that the potential noise and privacy concerns have not been taken into account by the Applicant. As such, the Application does not meet the test of being minor in nature.

ANALYSIS AND FINDINGS

53With regard to the PPS, the Tribunal prefers the evidence of Mr. Wynia. Mr. Wynia demonstrated to the Tribunal through his examination of the PPS, that the Application is consistent with the PPS, particularly policies s. 1.4.3(b) and s. 1.6.6.2. These policies underlined the Applicant’s position that the private services are allowed where no municipal services are planned or available (s. 1.6.6.2). Since private services are available and adequate to service the SP including the DADU, the Application is consistent with policy s. 1.4.3(b) since the Application will allow for intensification and provide a variety of housing types.

54In consideration of the GH, the Tribunal finds that Mr. Wynia has demonstrated to the Tribunal that the policies stated conform to the GH and the SP has been developed on private services, the only services available. The updated sewage systems were approved by the City of Barrie and have the capacity to service the DADU.

55With regard to the OP, the Tribunal prefers the evidence provided by Mr. Wynia. The Application has demonstrated that it does conform to the policies set out is s. 3.3.1, 3.3.2.1 and 4.2.2.6 with regard to housing and the housing goals of the City of Barrie.

56When considering the ZBL, the Tribunal prefers the testimony of Mr. Wynia. The evidence provided has demonstrated to the Tribunal that the requested relief does not change the building in question, only it’s use. With regard to the side and rear yard setbacks, the existing dwelling is not moving. If the structure was to be moved to meet the setback requirements, the new structure would have more of a visible impact to neighbours and would encroach on the new septic system. The landscape setback requirement would result in the removal of an existing large tree that provides shade and privacy to the SP and the abutting neighbour. This may be more of a concern than the totality of the landscape setback itself.

57With regard to the servicing issue for the DADU, the lack of municipal services currently or planned, provides some determination to the private servicing issue. The new septic system was installed and approved by the City of Barrie. The approval records demonstrated that the new system can adequately service the current dwelling along with the proposed DADU. As such, the Tribunal is satisfied that the new sewage system can adequately service the addition of the DADU.

58As for an appropriate use of the lands, the City of Barrie has adopted policies which encourages more housing and housing types and forms. Even though municipal services are the preferred method for additional housing forms, the updated private services can accommodate the DADU. The Tribunal feels that the proposed use is an appropriate use of the lands.

59With regard to being minor in nature, the Tribunal agrees with Mr. Wynia that the structure is a change of use. The outside of the structure is not changing. The size and shape of the structure’s current placement provide adequate visual privacy. The location’s proposed front entrance will not impact abutting neighbours visual site lines and the noise impact would be minimal at best.

60Based on the totality of the evidence presented, and for the reasons outlined above, the Tribunal finds that the proposal is a matter of Provincial interest, is consistent with the PPS and conforms to the GH. The Tribunal finds that the relief being sought conforms to the general intent and purpose of the OP and the ZBL. The Application is a desirable use of the lands and is minor in nature.

61The Tribunal finds that the Application has met the four tests as set out in s. 45(1) of the Planning Act.

62The Tribunal has given regard for the decision of the COA and the materials presented before it.

ORDER

63THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Zoning By-law 2009-141, as amended, are authorized.

“S. deBoer”

S. deBOER 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.