Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 14, 2022
CASE NO(S).: OLT-21-001598
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Bill Russell
Appellant: The City of Burlington
Subject: Minor Variance
Property Address/Description: 3088 Balmoral Avenue
Variance from By-law: 2020
Municipality: The City of Burlington
Municipal File No.: 540-02-A-026/2021
OLT Lead Case No.: OLT-21-001598
OLT Case No.: OLT-21-001598
OLT Case Name: Burlington v. Burlington (City)
Heard: March 29, 2022 by video hearing
APPEARANCES:
Parties
Bill Russell
Catriona Russell
City of Burlington
Counsel
Scott Snider
Anna Toumanians
Lauren Pinder
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI AND P. TOMILIN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was a Settlement hearing in the matter of appeals by Bill Russell (the “Applicant”) from the refusal of The City of Burlington (the “City”) in respect of application for construction of new rear single story covered porch, expansion of a legal non-conforming second floor balcony and open stone terrace at the property municipally known as 3088 Balmoral Avenue (the “Subject Property”).
2The Tribunal has been advised that the City now supports the construction as the parties have now reached a settlement.
3The Applicant’s land use planner, Ed Fothergill’s Affidavit of Service was marked as Exhibit 1.
SETTLEMENT
4The following condition shall apply to this approval in addition to the conditions imposed by the Committee of Adjustment (“CoA”) decision dated June 20, 2021:
- The owner shall maintain screening in the form of a vegetative buffer along the western lot line that obstructs views from the second storey balcony to the adjacent property. Should the existing vegetation be removed, or the effectiveness of the screening provided be significantly reduced, the owner shall replace or supplement the screening in a manner that continues to obstruct views from the second storey balcony to the adjacent property.
SITE AND CONTEXT
5The Subject Property is located within a neighbourhood consisting of predominantly single-family dwellings with attractive mature tree lined streets within a neighbourhood identified as Roseland.
6The Subject Property has a lot frontage of 29.85 metres (“m”), depth of 38 m, with an area of 1,147 square metres (“m²”).
THE PROPOSED DEVELOPMENT
7The Applicant is proposing to construct a rear covered deck which will expand then existing legal non-conforming balcony to a total area of 25m² with a west side yard set back of 2.7 m (the “Proposed Development”).
8To facilitate the Proposed Development, the Applicant seeks the following:
Permission to permit the expansion of an existing 6.67 m² legal non-conforming rear second storey balcony with a total balcony area of 25 m² (the “Permission”); and
Minor variance (“MV”) to permit a west side yard setback of 2.7 m instead of the minimum required 4.473 m for the proposed west side wall forming part of the proposed roofed over rear deck – MV.
9The current balcony depth from the building is 1.55 m and will be increased to 6.0 m, a distance of approximately 4.5 m.
10Currently, the proposed deck complies with the minimum required setbacks specific for a permitted at grade deck, but the design incorporates a structural wall along the west side which is considered an extension of the principle dwelling. As a result, it is subject to principle dwelling setbacks and requires the requested MV.
HEARING
11Mr. Fothergill was qualified by the Tribunal to provide expert opinion evidence in the area of Land Use Planning. He provided the Tribunal with his opinion as well as thorough overview of the applicable provincial and local planning policies. Mr. Fothergill stated that the proposed development is consistent with or conforms to the provincial and local policies. In his expert opinion the development represents good planning and should be approved.
PROVINCIAL POLICY
12The proposed Permission and MV are minor in nature. It’s approval is consistent with a number of general provincial interests such as the development of healthy communities (2h) as well as the promotion of built form that is well designed (2r). These interests are outlined in the Provincial Policy Statement 2020 and in a Growth Plan 2020 but are not particularly relevant to the planning analysis required for Permission and MV.
CITY OF BURLINGTON NEW OFFICIAL PLAN (OP)
13Mr. Fothergill mentioned that while the New Official Plan is not applicable as it is not yet in force, staff does refer to it and in his observations for the Tribunal’s information relate to the relevant policies related to the neighbourhood character areas and compatibility of infill development.
14Policy 8.3.6(2)(d) is applicable to Roseland Neighbourhood. Proposed development should respect the existing neighbourhood character by incorporating built form and design elements, architectural features, building separations, lot coverage, scale, floor area ratio, and landscape qualities and characteristics that are prevalent in the Neighbourhood Character Area.
15The infill compatibility policy 8.3.1(h) contains direction to ensure that development within Residential Neighbourhood Area is compatible with surrounding properties.
MINOR VARIANCES
16The Tribunal is satisfied that application meets the criteria of the tests set out at Section 45(1) of the Planning Act.
17The Proposal can be implemented without any adverse impact on the neighbouring residential lots and the surrounding community due to small nature and size of change, existing vegetation and distance separation.
18The Proposal generally complies with provisions of the existing Zoning By-law, as evidenced by the approval of the Building Permit application.
19The Proposal is minor in nature. It will allow for the enclosure of lower-level space with the extension of an existing balcony from 1.55 m to 6.0 m. Both of these elements are minor in the context of scale of change as well as the absence of any adverse impact on the surrounding properties or the community.
20The addition will allow to enhance use of the property by the current owner by permitting to enclose lower-level space and to utilize an existing balcony 6.0 m from the wall of the existing house instead of the current 1.55 m without having any adverse effect on the community or surrounding properties. The proposed development does not maximize the development potential of the site.
LEGAL NON-CONFORMING USE
21The Planning Act does not provide specific tests for requests to enlarge or extend a legal non-conforming use. Mr. Fothergill opined that in analyzing the request it is appropriate to apply good planning principles. It involves assessing the desirability of the request and in particular any potential impacts and whether those impacts would be unacceptably adverse.
22The Tribunal agrees with Mr. Fothergill’s professional opinion that the proposed Permission will not result in any unacceptable adverse impacts.
CONCLUSIONS
23In determining this matter, the Tribunal has taken into consideration the Municipal records, the matters before the Council, the support of the neighbours of the proposed extension and accepted the uncontested land use planning evidence of Mr. Fothergill. The Tribunal is convinced by the evidence that the Proposal is minor in nature and will allow to enhance the use of the Subject Property.
24THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law (2020) is authorized subject to the following condition:
- The owner shall maintain screening in the form of a vegetative buffer along the western lot line that obstructs views from the second storey balcony to the adjacent property. Should the existing vegetation be removed, or the effectiveness of the screening provided be significantly reduced, the owner shall replace or supplement the screening in a manner that continues to obstruct views from the second storey balcony to the adjacent property.
“Carmine Tucci”
CARMINE TUCCI
MEMBER
“P. Tomilin”
P. TOMILIN
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.