Broadbent v. Chatham-Kent (Municipality), 2022 CanLII 14014

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 24, 2022

CASE NO(S).: OLT-21-001268

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

Appellants: David Broadbent

Appellant: Wayne Sonneveld

Applicants: Christopher and Jennifer Van Neck

Subject: Minor Variance

Property Address/Description: 8531 Water Street

Variance from By-law: 216-2009

Municipality: Municipality of Chatham-Kent

Municipal File No.: D-13 RA/45/21N

OLT Lead Case No.: OLT-21-001268

OLT Case No.: OLT-21-001268

OLT Case Name: Broadbent v. Chatham-Kent (Municipality)

Heard: January 10, 2022 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel/Representative*

Wayne Sonneveld (“Appellant”)

Self-represented

David Broadbent (“Appellant”)

Did not appear

Christopher and Jennifer Van Neck (“Applicants”)

William Good*

Municipality of Chatham-Kent

Jonathan Sinopoli*

(“Municipality”)

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JANUARY 10, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a hearing of an appeal of a decision of the Committee of Adjustment (“COA”), approving a minor variance request, which would permit the construction of a 297 square metre (“sq m”) accessory structure (“sports barn”) with a height of 7.62 metres (“m”) on the residential lot belonging to the Applicants at 8531 Water Street (the “Subject Lands”).

VARIANCES REQUESTED AND DECISION OF THE COA

2The application requests a 2.62 m variance from the height provisions for Accessory Structures under s. 4.2(3) of By-law No. 216-2009 (“ZBL”); whereas the ZBL permits a maximum height of 5.0 m, the proposed development involves a total height of 7.62 m.

3Municipal planning staff prepared a report in support of the requested variance, which was subsequently adopted by the COA in its decision, authorizing the variance subject to the following condition:

• That the accessory structure maintains a minimum 7.0 m (23 feet (“ft”)) setback from any rear or side lot.

PARTIES AND EVIDENCE

4There are two distinct appeals of the COA decision by:

a) Wayne Sonneveld, who contends that the development would introduce a commercial sized building in an estate residential area; and,

b) David Broadbent, who contends that the additional height will result in development that is inconsistent with that which was intended for the estate residential zone/Subject Lands and area.

5The Tribunal scheduled the two appeals to heard at the same time, since the matters both involved similar issues and evidence. However, the Appellant, Mr. Broadbent, did not appear at the Hearing, so the Tribunal proceeded with the Hearing of both appeals in his absence.

6Rita Jabbour and Anthony Jas testified for the Applicants and Municipality respectively as expert witnesses in the field of Land Use Planning. Both were duly qualified by the Tribunal on consent of the parties.

7The Appellant, Mr. Sonneveld, did not call any witnesses; however, he did interject from time to time with his own lay-witness testimony respecting the general layout and terrain of the Subject Lands.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

8When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act (“Act”), to determine if the requested variance:

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 desirable for the appropriate development or use of the land; and,

d) Is minor in nature.

All four elements must be satisfied.

9Ms. Jabbour testified that the Applicants propose to construct the subject accessory structure for their own personal recreational use. Specifically, the Applicants intend to use the structure as a space for the enjoyment of basketball, volleyball, badminton and roller hockey on a year-round basis.

10To permit the accessory structure as proposed, Ms. Jabbour testified that a Minor Variance is required to provide relief from s. 4.2(3) of the ZBL. Subsection 4.2(3) limits the height of an accessory building or structure to 5 m, whereas 7.62 m is necessary to specifically accommodate indoor basketball and volleyball.

11Ms. Jabbour testified that, in addition to the criteria set out in s. 45(1) of the Act, s. 6.3.3.48 of the Municipality’s Official Plan provides that the physical characteristics of the land and the reasons why relief from the ZBL is being sought shall also be a factor when considering a minor variance.

12Ms. Jabbour testified that the ZBL defines "Accessory" when used to describe a use, building or structure, as a use, building or structure that is incidental, subordinate and exclusively devoted to the main use, building or structure located on the same lot therewith. She further opined that accessory uses or structures are common uses for residential lots, and s. 4 of the ZBL permits an accessory use in a building or structure in all Zones, including the Estate Residential Zone (ER) – which is where the Subject Lands are located. She further testified that the OP does not specifically address the development of accessory structures, but it refers to the ZBL for the implementation of specific land uses.

13Ms. Jabbour further testified that the OP does not identify the Subject Lands as being located within a Special Policy Area or the subject of a Secondary Plan where the OP may prescribe more detailed direction for land use, urban design or similar issues beyond the general framework of the OP.

14Ms. Jabbour opined that the ZBL places limits on the size, height, and location of an accessory structure to ensure it remains secondary to the primary use of the lands.

15Ms. Jabbour further testified that the Applicants are currently constructing a single detached dwelling, which will serve as the primary use of the property, thus allowing the construction of an accessory structure. She opined that the proposed accessory structure will be used for recreational purposes by the inhabitants of the dwelling (and their guests), thus rendering the use as being incidental, subordinate and exclusively devoted to the main residential use.

16Ms. Jabbour further opined, in a general sense, that recreational facilities may serve as accessory uses/structures to serve the inhabitants of a dwelling, and may be located indoors or outdoors in residential areas. For example, s. 4.35 of the ZBL permits a swimming pool as an accessory use in all zoning districts.

17In considering the reasons why relief is sought from the ZBL, Ms. Jabbour testified that the Applicants have indicated that the additional increase in building height is required to accommodate the proposed use of the building to play indoor basketball, volleyball, badminton and roller hockey, noting that basketball and volleyball specifically require an adequate interior clearance of 6.1 m, which is not otherwise supported by s. 4.2(3) of the ZBL.

18In considering the physical characteristics of the land, Ms. Jabbour testified that the Subject Lands are sufficiently large enough to provide a 7 m setback between the proposed accessory structure and the rear and interior side lot lines to limit possible privacy concerns respecting adjacent residential lots.

19Additionally, Ms. Jabbour testified that the Subject Lands are also affected by a drop in grade of approximately 2.4 m at the proposed location of the accessory structure, thereby lowering the overall elevation of the roofline of the building. She opined that this fact mitigates any aesthetic impact that the proposed structure might have on the neighbouring lots. The Tribunal notes that the difference in elevation of the structure’s roofline at the proposed location, compared to that of an accessory building located at a higher grade on the Subject Lands, built with an as-of-right height of 5.0 m, is only 0.22 m greater.

20Ms. Jabbour noted that the accessory structure will meet all other requirements of the ZBL, including being below the maximum accessory lot coverage at 3.5% (the maximum being 10%).

21Ms. Jabbour testified that no formal leagues are proposed to use the facility, and so the proposed structure will not be used as a commercial or public recreational facility. As a result, she opined, it will not hinder the general rural character of the neighbourhood.

22In summary, Ms. Jabbour opined that the application for a Minor Variance to accommodate the subject accessory structure is minor in nature, desirable for the appropriate development or use of the lands, and that the general intent and purpose of the ZBL and OP are maintained, all of which has been considered together with the physical characteristics of the Subject Lands and surrounding area, as well as the reasons why relief from the ZBL is sought, in accordance with the OP.

23The Appellant disputed Ms. Jabbour’s evidence and opinion insofar as he contended, through cross-examination and /or his own interjected testimony, that the proposed increase in height represents a 53% increase in the ZBL permitted height. When he asked Ms. Jabbour, through cross-examination, if a 53% increase in height could be considered minor, Ms. Jabbour replied that such a determination is not a mathematical determination and, rather, it is a question of impact and she further opined that the proposal would not result any measurable impact on the surrounding area.

24The Appellant also testified that he would be able to see the top of the structure at 7.6 m, but not at 5.0 m; however, he provided no evidence to support this contention. He also confirmed that the extent of the impact upon him, if the variance is approved, would only be his ability to see the roofline, admitting that the roofline of the Applicant’s dwelling would be similarly visible.

25Mr. Jas generally concurred with the evidence and opinion of Ms. Jabbour, similarly, finding that:

1. The proposed variance is minor in nature because:

a) The proposed accessory structure will maintain a height that is consistent with the single detached dwelling on the subject parcel. It will also be consistent with the existing residential development on the abutting parcel to the east at 8537 Water Street;

b) The 7.0 m setback requirement from any interior or rear lot line will mitigate any potential impacts on abutting lands. Further, this setback will not result in any negative impact on the Subject Lands because it is a large lot and the proposed accessory structure will only occupy 3.5% lot coverage; and,

c) Overall, the variance will not result in development that is inconsistent with the surrounding estate residential area, and the proposed accessory structure will remain secondary to the primary residential use of the subject parcel.

2. The proposed variance is desirable for the appropriate development or use of the land, building or structure because:

a) An accessory structure is permitted as-of-right on an estate residential lot where an existing habitable dwelling exists; and,

b) The variance will facilitate new development that is secondary, in both use and built characteristics, to the primary residential use of the subject parcel.

3. The proposed variance maintains the general intent and purpose of the OP because:

a) The subject property is designated Estate Residential in the OP. Estate Residential development is intended to be an alternative form of housing that is typically found in the Primary and Secondary Urban Centres. The predominant use of land within the Estate Residential designation is for low-density residential; and,

b) The variance is in keeping with the general intent and purpose of the OP by allowing for the construction of a use that is secondary to the primary residential use of the lands and in which is permitted as-of-right;

4. The proposed variance maintains the general intent and purpose of the ZBL because:

a) The subject property is zoned Estate Residential (ER). The ER Zone limits the primary use to a single detached dwelling and provides provisions to control the use on a parcel of land. The Zoning By-law permits a building or structure that is accessory to an existing residential use on a lot under s. 4.2, Accessory Uses;

b) Regulations under s. 4.2, Accessory Uses, of the Zoning By-law ensure that an accessory structure maintains a size and location on a lot for it to remain secondary to the primary use for which it is accessory to. These regulations also provide consistency in built form;

c) The variance will result in development of an accessory structure that is similar in height to the existing dwelling on the subject parcel. Further, the proposed accessory structure will only occupy 3.5% of the total area of the subject parcel. Based on these factors and taking into consideration the built characteristics of lands within the subject area, the proposed accessory structure will remain secondary in use and built form to the existing dwelling on the Subject Lands. Moreover, the proposed development will be complementary to existing built form present in the subject area; and,

d) The proposed accessory structure complies with all other regulations of the Zoning By-law.

26In considering the above evidence and opinions of the experts, and the evidence of the Appellant, the Tribunal finds that the requested variance satisfies the test set out in s. 45(1) of the Act. In addition, the physical characteristics of the Subject Lands and surrounding area, if anything, mitigate the very minor impact that the development might have on neighbouring lands. Considering the fact that elevation of the proposed roofline will be only 0.22 m greater when built at the proposed location, compared to that of an accessory building located at a higher grade on the Subject Lands, built at the as-of-right height of 5.0 m, the Tribunal finds that this difference in height is practically imperceptible when viewed from neighbouring lots. Furthermore, the reasons for relief from the ZBL are reasonable given that the height restrictions of the ZBL have clearly not considered the practical requirements of a facility built to accommodate indoor basketball and /or volleyball.

ORDER

27THE TRIBUNAL ORDERS that the appeals are dismissed and the variance to By-law No. 216-2009 of Municipality of Chatham Kent is authorized with the following condition:

1. That the accessory structure maintains a minimum 7.0 m (23 ft.) setback from any rear or side lot.

“K.R. Andrews”

K.R. ANDREWS

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.