Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 21, 2022
CASE NO(S).: OLT-21-001403
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Elizabeth Holohan
Subject: Consent
Property Address/Description: 29 Crombie St
Municipality: City of Cambridge
Municipal File No.: B07/21
OLT Lead Case No.: OLT-21-001403
OLT Case No.: OLT-21-001403
OLT Case Name: Holohan v. Cambridge (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Elizabeth Holohan
Subject: Minor Variance
Property Address/Description: 29 Crombie St
Variance from By-law: 150-85
Municipality: City of Cambridge
Municipal File No.: A31/21
OLT Lead Case No.: OLT-21-001403
OLT Case No.: OLT-21-001404
OLT Case Name: Holohan v. Cambridge (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Elizabeth Holohan
Subject: Minor Variance
Property Address/Description: 29 Crombie St
Variance from By-law: 150-85
Municipality: City of Cambridge
Municipal File No.: A32/21
OLT Lead Case No.: OLT-21-001403
OLT Case No.: OLT-21-001405
OLT Case Name: Holohan v. Cambridge (City)
Heard: March 1, 2022 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Elizabeth Holohan and Patrick Joseph Holohan (collectively “Applicant” or “Appellant”) | Kainth Tajinder |
| City of Cambridge | Did not appear |
DECISION DELIVERED A. CORNACCHIA AND S. MANN AND ORDER OF THE TRIBUNAL
1. BACKGROUND
1This is an appeal of the decision of the City’s Committee of Adjustment (“Committee”) denying a severance application and a minor variance application for the property municipally known as 29 Crombie Street in the City (“Subject Property”). A single- family dwelling is located on the Subject Property which is a large corner lot on the south side of Crombie Street and the east side of Middleton Street. The purpose of the applications is to sever the Subject Property into two lots, one will include the current single family two-storey dwelling fronting onto Crombie Street and the other will be a vacant lot fronting onto Middleton Street.
2The Subject Property is designated as “Urban Area: Built-Up Area” in the Official Plan (“OP”) of the Region of Waterloo (“Region OP”) and designated as Low/Medium Density Residential in the City’s OP. The Subject Property is zoned (F)R4 in the Zoning By-law No. 150-85 (“ZB”)
3A consent for a severance is requested to create a new parcel having an approximate lot area of 297 square metres (“m²”) and a frontage of 14.61 metres (“m”) along Middleton Street. (“Severed Parcel”) The Severed Parcel is currently vacant and will be used for the construction of a single detached dwelling. The following variances are sought for the Severed Parcel:
A reduced lot area of 297 m² (3,196 ft²) whereas the by-law requires a minimum of 450 m² (4,843 ft²).
4The retained parcel, where the current single two storey dwelling is located, will have an approximate lot area of 404 m² and a frontage of 19.52 m along Crombie Street, (“Retained Parcel”) The following variances are sought for the Retained Parcel:
- A reduced corner lot area of 404 m² (4,348 ft².) whereas the ZB requires a minimum of 540 m² (5,812 ft²),
- A reduced rear yard setback of 4.73 m (15.51 ft.) whereas the ZB requires a minimum of 7.5 m (24.6 ft.).
5Collectively the variances for the Retained Parcel and the Severed Parcel will be referenced as the Variances.
6After reviewing the applications, the City’s Community Development Department prepared a report dated April 22, 2021 for the Committee recommending against the approval of both the severance and minor variance applications (“City Planning Report”) since the tests for minor variances under the Act were not met by the proposed severance. Based on this report, the Committee denied the applications on April 22, 2021. On May 12, 2021, the Applicant filed an appeal of the Committee decision with the Ontario Land Tribunal.
2. HEARING AND WITNESSES
7Mr. Kainth was engaged by the Appellants as their representative. He advised the Tribunal that he did not have any experience before it. The Tribunal provided him with general guidance relating to the proceedings. The Tribunal indicated that it was Mr. Kainth’s responsibility to convince the Tribunal of his client’s case by presenting appropriate evidence and submissions. He was directed to the requirements of s. 45(1) of the Planning Act (“Act”) for the applicable minor variance tests and s. 51(24) of the Act for the applicable tests for severances of land. The focus of his evidence and submissions related to the minor variances requested and the tests under s. 45(1). He called the Appellants as witnesses, and they presented evidence relating to the Subject Property and the neighbourhood generally.
8There were two party status requests filed by Mr. Kainth and Mr. Holohan. Mr. Kainth explained to the Tribunal that due to an error, Mr. Holohan, the other owner of the Subject Property was not identified as an Appellant in the appeal form and requested that he be added. The Tribunal granted this request. The Tribunal was advised by Mr. Kainth that he would be representing the Appellants. Party status for the purposes of representing an Appellant is unnecessary.
9Lisa Chominiec, a City Planner attended the hearing in order to present her evidence as friend of the Tribunal. Mr. Kainth requested that she present her evidence before he presented the case for the Appellants and this request was granted while reinforcing that the Appellants have the burden to convince the Tribunal that the applications should be granted. Ms. Chominiec, was properly qualified as an expert witness in planning and the Tribunal found her evidence to be credible. She advised the Tribunal that her review of the file was limited to a review of the City Planning Report prepared by another City planner who is away on leave. Ms. Chominiec stood up well in cross-examination and answered all questions posed by the Tribunal and in cross-examination in a clear, concise and forthright manner.
3. APPEAL AND APPLICABLE TESTS
10This appeal is a hearing de novo of the minor variance and severance applications. The Tribunal is required to hear the evidence presented both for and against the applications and decide whether they should be allowed based on this evidence, the submissions of the parties and by applying the applicable legal tests. The Tribunal must have regard to the decision of the Committee but is not bound by it.
11The Tribunal heard the planning evidence and other evidence and the submissions from the Appellant on the tests set out in s. 45(1) of the Act.
1. Does the variance maintain the general intent and purpose of the official plan (“OP”)?
12The planning evidence confirmed that the severance proposal for the Subject Property which result in modest intensification with the addition of a single-family dwelling is supportable under the Region’s OP policies. There are clear housing intensification goals in this OP.
13The City’s OP also supports growth and intensification but has a policy dealing with the compatibility of infill development. One of the factors in assessing compatibility under subsection 8.4.2.2 of the City’s OP is the similarity of lot coverage and setbacks to those of neighbouring houses.
14The planning evidence identified that the proposed lot area variances for both the Retained Parcel and the Severed Parcel would result in undersized lot areas relative to other lots in the area and thus are not compatible with this neighbourhood.
15Concern was also expressed that the proposed reduced rear yard setback of 4.73 m for the Retained Parcel will likely have a negative impact on the separation and privacy of the adjacent properties and would not be consistent with the large backyards of adjacent properties.
16The Appellants presented evidence of other properties in the area with smaller lot sizes which consisted of a list of property addresses in the appeal form. Unfortunately, no planning evidence was presented by a qualified planner on behalf of the Appellants. Furthermore, there was no evidence supported by municipal records regarding these properties including the following:
- zoning of these properties,
- the dimensions of the properties, and
- the properties are in the neighbourhood.
17Ms. Chominiec could not provide contextual evidence of the Neighbourhood and specifically evidence on the list of properties presented by the Appellants in support of their case. Ms. Chominiec did not attend at the site and had not completed a study of the Neighbourhood or these specific properties in order to be able to comment on them.
18Little weight is attributed to the evidence presented by the Appellants on other neighbourhood lots of a similar size to the proposed severed lots by the Tribunal. This evidence may have been more persuasive if it had been presented by a qualified planner or detailed evidence were presented regarding the specific lots in question.
19Based on the evidence presented, the Tribunal prefers the evidence presented in the Planning Report and finds that the proposed Variances would result in lots incompatible with the Neighbourhood and thus inconsistent with City OP.
2. Does the variance maintain the general intent and purpose of the zoning by-law?
20According to the planning evidence, the ZB seeks to maintain a consistent lot pattern in the neighbourhood. The proposed variances for both the Retained Parcel and Severed Parcel will result in parcels that are much smaller than those identified as minimum sizes in the ZB and are inconsistent with the larger lot sizes existing in the Neighbourhood.
21According to the planning evidence, the ZB seeks to maintain a minimum rear yard setback to ensure that there is an adequate amenity area on site and to provide separation with adjacent properties. Similarly, the reduced rear yard setback sought for the Retained Parcel will result in inadequate amenity space and insufficient separation with adjacent properties.
3. Is the variance minor?
22The planning evidence confirmed that the proposed variances are not minor in nature since the lots to be created would be inconsistent with the fabric of the neighbourhood.
4. Is the variance desirable for the appropriate development or use of the land, building or structure?
23The planning evidence also confirmed that the proposed variances would not be desirable for all the reasons previously cited including inconsistency with the Neighbourhood fabric, privacy concerns and lack of amenity space.
24In summary, the application for the Variances fails all four tests under s. 45(1) of the Act. It is not minor, desirable for the use and development of the Subject Property and does not maintain the general intent and purpose of the ZB or the City OP. There is no need to examine whether the severance should be granted under s. 51 of the Act. Thus, the appeal must be dismissed and the application for the Variances is not allowed.
ORDER
25THE TRIBUNAL ORDERS that the appeal be dismissed.
“A. Cornacchia”
A. CORNACCHIA MEMBER
“S. Mann”
S. MANN 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.