Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 14, 2022

CASE NO(S).: OLT-22-003353

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

Appellant: Manny Barbosa

Applicant: TD Consulting Inc.

Subject: Minor Variance

Description: To increase the maximum height in order to permit the existing detached garage with storage.

Reference Number: D20-2022-010

Property Address: 285 Omega Road

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-003353

OLT Case Name: Barbosa v. Kawartha Lakes (City)

Heard: October 6, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Manny Barbosa	Tracy Barbosa
TD Consulting Inc.	Jennifer Savini*, Nima Chooback*
City of Kawartha Lakes	Robyn Carlson*

MEMORANDUM OF ORAL DECISION DELIVERED S. BOBKA ON OCTOBER 6, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal by Manny Barbosa (“Appellant”) of a Minor Variance (“MV”) approved by the Committee of Adjustment (“COA”) of the City of Kawartha Lakes (“City”) for the property municipally known as 285 Omega Road (“Subject Property”), in Bexley Township.

2The Subject Property is owned by Glenn Lundrigan and Susan Berghuis for whom TD Consulting Inc. (“Applicant”) acted as the Agent. The Applicant applied to the City for a variance from Zoning By-law No. 93-09 (“ZBL”) to increase the maximum height of an accessory building to 6.5 metres (“m”), whereas 5 m is permitted, in order to permit the existing garage.

3Prior to the Hearing, the City confirmed that it would not be calling a case in the Appeal; however, Counsel would be attending the Hearing.

4The Tribunal confirmed that Notice was properly given. In response to the Notice, eleven (11) requests for Participant status were received, and with no objections from the Parties, the Tribunal granted Participant Status to the following:

Emilio and Agostina Aceti

Glen and Anita Arnold

Margaret Doe

William Harding

Dave Nighswander

Arlene and Dan O’Neill-MacLellan

B. Anthony Penna and Jennifer H. Proctor

Harold Rapp

Sue Rapp

Gloria Sharples

Alessandro Sirizzoti

SUBJECT PROPERTY

5The Subject Property is 8,639.8 square metres (“sq m”) in size and is situated on a bay near the western portion of Balsam Lake (“Lake”). Access to the lot is via Omega Road and it is an ‘L-shaped’ through-lot with the northwest arm leading to the shoreline of the Lake. To the east is Omega Road, to the south is Otter Road, to the west is Rockway Trail (an unmaintained road) and to the north is the Lake.

6The Subject Property is:

a. designated Waterfront and Rural within the City’s Official Plan (“OP”);

b. zoned Rural General (RG) within the ZBL;

c. serviced by private individual well and private septic system.

LEGISLATIVE FRAMEWORK

7In determining this Appeal brought under s. 45 of the Planning Act (“Act”), it must be noted that this is a hearing de novo. The Applicant bears the onus of demonstrating that the MV meets the following four tests:

a. maintains the general intent and purpose of the ZBL?

b. maintains the general intent and purpose of the Official Plan (“OP”)?

c. is minor?

d. is desirable for the appropriate development or use of the land?

8In addition, s. 3(5) of the Act requires that decisions of the Tribunal are consistent with the Provincial Policy Statement (“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.

HEARING

9The Appellant was represented by Tracy Barbosa. The Tribunal confirmed that Ms. Barbosa met the criteria to act as a representative. The Appellant did not call any experts or witnesses. The Tribunal provided the Appellant with a fulsome explanation of the Hearing process.

10The Applicant attended the Appeal accompanied by Counsel and summoned Leah Andrews Barrie, the Manager of Planning for the City. Upon review of her qualifications and Acknowledgement of Expert’s Duty form, the Tribunal qualified Ms. Barrie to provide opinion evidence in land use planning.

11The Tribunal received and marked the Applicant Document Book as Exhibit 1 to the Appeal.

12The eleven Participant statements were submitted by neighbouring residents who were all in support of the Applicant’s proposed variance. Supporting comments included (but were not limited to):

a. the property is surrounded by large, mature trees and the garage is not visible from the surrounding roads;

b. the garage does not impact any neighbouring properties;

c. the materials used blend well with the surrounding area;

d. the lot is very large and the garage is subordinate to the house;

e. the garage does not obstruct views from the Lake.

13While Ms. Barbosa provided various assertions as to why the variance should not be granted, she did not put forward any planning evidence for the Tribunal’s consideration. The Appellant’s main objection was that the COA denied the Appellant’s previous request for a MV for height when he applied to build his own garage. Ms. Barbosa stated that the Appellant did not feel the rules had been fairly applied by the COA.

14Ms. Barbosa also presented brief submissions that the treeline study did not provide enough information and stated that the overall dimensions of the garage were inconsistent with the PPS. She also stated that the COA did not give enough weight to an error with the building permit which approved a non-compliant height.

Planning Evidence

15Ms. Barrie confirmed that while she did not write the initial staff planning report, she had reviewed it and supported the conclusions found therein. It was Ms. Barrie’s overall opinion that the application was consistent with the PPS and had regard to matters of provincial interest as outlined in s. 2 of the Act.

16Ms. Barrie explained that the Subject Property is designated Waterfront within the OP which speaks to permitted uses and how development is to be conducted. She confirmed that the residential use and accessory use are both permitted uses. She opined that as the proposal sites the garage at least 30 m from the shoreline, it meets the setback requirements. It was her opinion that the proposal maintains the intent and purpose of the OP policies.

17The Subject Property is zoned Rural General (RG). Ms. Barrie stated that the ZBL is used to limit the height of accessory buildings to ensure they are subordinate to the primary use. She explained that the detached garage is of a lesser height than, and will compliment, the existing dwelling and that the proposal meets all the remaining zoning requirements. Ms. Barrie opined that the variance maintains the intent and purpose of the ZBL.

18Ms. Barrie testified that the proposal is both desirable for the appropriate development or use of the land and minor in nature. She explained that the residences within the surrounding neighbourhood are varied in terms of age and built-form and that the proposal is appropriate. She stated that the design elements of the proposal (including a gabled roof, three dormers and an identical colour scheme) work to create a complimentary aesthetic. She explained that the Subject Property is surrounded by existing vegetation which provides a substantive buffer on all sides, effectively concealing the garage from view. In addition, Ms. Barrie stated that the lot is not overbuilt, so with the vegetative screening, there are no massing issues. With the vegetative buffers, Ms. Barrie opined that there were no anticipated adverse impacts to the neighbouring lots.

19Ms. Barrie spoke to the proposed conditions, the first which lays out that construction will be in accordance with two sketches and the second which requires that should approval for a septic system be required, it will be obtained. She testified that these were quite common conditions, and that she recommended that the granting of the variance be subject to these conditions, should the Tribunal decide to permit the variance.

CONCLUSION

20The Tribunal had regard for the decision of the COA as well as the information considered by it. There was no contradictory evidence to the municipal record, nor to the documents and materials presented to the Tribunal and the Tribunal had the benefit of the uncontroverted and uncontested evidence of Ms. Barrie, who was not challenged under cross-examination. The Tribunal also reviewed and considered the eleven Participant statements in support of the proposal.

21The Appellant did not present any evidence, planning or otherwise, to demonstrate why this Appeal should be granted. The Tribunal notes that the Appellant’s main objection was that he was denied a MV for height when he applied to build his own garage. The Tribunal can only adjudicate on the matter currently before it, and the matter of the Appellant’s garage was never appealed and is clearly not before the Tribunal at this time.

22While the Appellant raised the issue of an incomplete tree-line study, neither that study, nor any evidence or expert testimony to support this assertion was presented at the Hearing.

23The Tribunal notes that the granting of building permits is not within its jurisdiction.

24In terms of the assertion by the Appellant that the rules were not applied fairly by the COA, the Tribunal highlights that as a hearing de novo it is now up to the Applicant to make the case in support of their application. Having now heard the Appeal, it is up to the Tribunal to make a determination.

25The Tribunal is satisfied that based on the evidence presented, the proposed variance, subject to the proposed conditions, represents good land use planning, has regard to matters of provincial interest in s. 2 of the Act and meets the four tests of a minor variance.

ORDER

26THE TRIBUNAL ORDERS that the Appeal is dismissed and the proposed variance to By-law No. 93-09 is allowed subject to the following conditions:

a. That the building construction related to this approval shall proceed substantially in accordance with the sketch titled Appendix C (attached to this Order) and generally in accordance with the sketches titled Appendix D (attached to this Order).

b. That the Secretary-Treasurer receive confirmation from Building and Septic Division-Supervisor, Part 8 Sewage Systems, that should a septic approval be required, that it be obtained.

“S. Bobka”

S. BOBKA 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.